Robert James Salmond v Department of Defence - [2010] FWA 5395

Note: An appeal pursuant to s.604 (C2010/4636) was lodged against this decision - refer to Full Bench decision dated 17 December 2010 [[2010] FWAFB 9636] for result of appeal.

[2010] FWA 5395

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert James Salmond
v
Department of Defence
(U2010/6886)

COMMISSIONER DEEGAN

CANBERRA, 30 JULY 2010

Termination of employment.

[1] This matter arises from an application for an unfair dismissal remedy lodged on 12 March 2010 by Robert James Salmond (the applicant) in respect of the termination of his employment by the Department of Defence (the respondent).

[2] The application was the subject of an unsuccessful conciliation conference on 26 March 2010. Directions for the hearing of the matter were issued on 19 April 2010. Further directions hearings occurred on 24 May 2010 and 17 June 2010 to deal with applications made by the applicant for the production of documents and the summonsing of witnesses.

[3] The production of documents was dealt with by agreement between the parties. No orders were made for the summonsing of witnesses as those witnesses the applicant wished to summons appeared not to be relevant to matters for determination. The applicant was advised that, should it become apparent at any stage during the hearing that it was necessary for him to summons any witness for the purpose of rebutting evidence led by the respondent, an application could be made at that time and the matter would be adjourned to allow the witness or witnesses to be called.

[4] At the hearing the applicant appeared in person and the respondent was represented by Mr Peter Bavington, the respondent’s Acting Director-General Personnel Policy and Employment Conditions. Prior to the hearing it was agreed by the parties that, in all the circumstances of the case, it would be more efficient if the respondent presented its case prior to the applicant making out his case.

Background

[5] The applicant was employed by the respondent in 1999. He had been a member of the RAAF from 1961 until his compulsory retirement earlier that year. At the time of the termination of his employment on 11 March 2010 he was an APS 6 officer with the respondent working in the Defence Materiel Organisation (DMO).

[6] By a Minute dated 1 December 2009 the applicant was informed that he was to be investigated in relation to a number of allegations that he had breached the Australian Public Service Code of Conduct (the Code) under the Public Service Act 1999.

[7] The Minute (at paragraph 23) set out those aspects of the Code it was alleged the applicant had breached. These were the requirement that he:

behave honestly and with integrity in the course of APS employment;

act with care and diligence in the course of APS employment;

treat everyone with respect and courtesy and without harassment;

when acting in the course of APS employment comply with all applicable Australian laws;

comply with any lawful and reasonable direction given by a person with the authority to give the direction; and

behave in a way that upholds the APS values and the integrity and good reputation of the APS.

[8] Also set out in the Minute were excerpts from a number of emails to which documents were attached which had been sent by the applicant to a Minister and to a minister’s office.

[9] The Minute also contained a reference to a series of emails sent between the applicant and other employees of the respondent with a number of excerpts from those sent by the applicant set out.

[10] Paragraph 22 of the Minute, under the heading “Allegations”, was as follows:

“With regards to your behaviour as detailed in this Minute, the allegations in this matter are:

a. With reference to the emails (and their attachments as noted above) you have:

i. repeatedly behaved in an inappropriate manner in that you have failed in the course of your employment, to treat Ms Amanda de Salis, Ms Di Harris, Mr Steven Grzeskowiak, Mr Nick Warner, Ms Ximena Morrisby and ACM Angus Houston with respect and courtesy and without harassment;

ii. impugned the reputations of Ms Amanda de Salis, Ms Di Harris, Mr Steven Grzeskowiak, Mr Nick Warner and ACM Angus Houston; and

iii. potentially brought the APS, Department of Defence, DMO and MPC into disrepute.

b. Your actions towards Ms Amanda de Salis and Ms Di Harris were vexatious, malicious, and reflected a lack of care and judgement.

c. You failed to comply with the following lawful and reasonable direction:

i. Defence Instruction (General) PERS 35-3 Management and Reporting of Unacceptable Behaviour. Specifically, paragraphs 12,13a and 13d.”

[11] Attached to the Minute were copies of the documents referred to in the Minute and the full emails from which the excerpts were extracted. Additionally, attached to the Minute was a copy of Chapter 11 Part 3 — Breaches of the APS Code of Conduct — of the Defence Workplace Relations Manual which described in detail the methodology adopted by Defence in dealing with such breaches.

[12] Also referred to in the Minute were the report and recommendations of an independent review conducted by Mr Bill Blick AM PSM (the Blick report) and a copy of correspondence concerning that report sent to the applicant on 21 July 2009 by Dr David Lloyd, Defence General Counsel.

[13] By letter dated 29 January 2010 the delegate made a number of findings on the charges set out in the earlier Minute and indicated that termination of employment was a possible sanction in respect of the breaches that had been found. The applicant was invited to make submissions on the sanction.

[14] On 11 March 2009 the applicant’s employment was terminated as a consequence of the breaches of the Code of Conduct that he was found to have committed. A letter delivered to him on that date set out the delegate’s reason for imposing the sanction.

The respondent’s case

[15] The respondent’s case was summarised as concerning “an employee who has had a series of complaints about Defence and who, despite a number of warnings, has used extreme language about very senior Defence officials to describe his interpretation of their motives” and that it was the applicant’s use of that extreme language, not the making of the complaints that was the fundamental basis of the decision to dismiss him.

[16] In essence, the applicant had, during his long career, both as an air force officer and as a public servant, made many complaints about Defence and Defence policy. Those complaints had been investigated, in many cases by external or independent bodies. The respondent had devoted significant resources, both financial and human, to investigating the applicant’s complaints. In some instances the investigations had found that Defence had made mistakes or could have done things better, but, in a number of cases, the investigations found that Defence had acted appropriately. In at least one instance where Defence had made mistakes financial compensation had been offered but not accepted. The issue, however, that had resulted in the decision to terminate the applicant’s employment had been his unsubstantiated allegations which had been made in the most extreme language.

[17] Evidence was given for the respondent by:

Ms Di Harris, Director-General , Workplace Reform, Department of Defence;

Mr John Peters, Director-General Human Resources, DMO; and

Ms Kathleen Sly, Director, Attraction and Recruitment Human Resources, DMO.

[18] The statement 1 of Ms Harris was tendered and constituted her evidence in chief. Ms Harris’ evidence was that so far as she was aware she had never met the applicant but became aware of him and his complaints in about October 2003. In May 2004 she was contacted by staff of the Minister’s office concerning “Mr Salmond’s attitude” and directed to draft a letter to be sent to the applicant concerning his avenues for complaint resolution and arrange for the applicant to be warned about the “unacceptable nature of his language”. After sighting other correspondence authored by the applicant in June 2004 she drafted a letter to the Code of Conduct delegate drawing attention to those matters and asking that the applicant be formally investigated.

[19] Ms Harris described an occasion in 2007 when she again had dealings with the applicant over a problem he had with his pay. She attached copies of emails sent by the applicant concerning that matter which led to her advising him in December 2007 that she intended to refer his conduct to the Code of Conduct delegate. She also warned the applicant to stop being offensive and disrespectful to her staff. Ms Harris stated that she was angry at the applicant’s repeated accusations that she and her staff had been dishonest in their dealings with him. According to her evidence, when she sent the Code of Conduct complaint to the delegate Mr Salmond then countered with a complaint to the Code of Conduct delegate that Ms Harris and a staff member had harassed and threatened him in breach of the Code.

[20] In March 2009 Ms Harris became aware that the applicant had continued his correspondence with ministers and the Department and had, in that correspondence, made a number of accusations about her, including that she was “dishonest, vicious, unprofessional, discourteous and unethical” and had “no understanding of the concept of fairness”, was “clearly unsuitable for her current position and unfit to be an SES officer in any capacity” and had lied and acted fraudulently. She brought this information to the attention of the Defence Code of Conduct delegate. Copies of the documents in which the applicant had made the accusations about Ms Harris were attached to her statement.

[21] Under cross-examination by the applicant Ms Harris agreed that in 2004 she had requested advice from Defence Legal Office for Mr Sharp, who was the First Assistant Secretary — Personnel, concerning action that might be taken in relation to the applicant. The witness also reiterated that her main concern at the time was not with decisions that may have been made in relation to the applicant but with the tone of the emails that were exchanged.

[22] When taken to the emails that were exchanged in December 2004 Ms Harris reiterated that she considered that a member of her staff who had properly handled the complaint made by the applicant and had advised him of his avenues for review if he remained unsatisfied, had been abused by the applicant. She stated that she was concerned that her staff member was upset by the applicant and considered it quite proper that she had taken her concerns to her manager. Ms Harris also stated that she considered her response to the applicant, which indicated that if he had concerns relating to fraud he should raise them with the Inspector-General, was balanced, as was her indication to the applicant that he should cease writing in the terms he had been using. She denied that her statement to the applicant that if he had “no evidence other than dissatisfaction with the decision based on a proper consideration of [the] application for review” he should “stop acting in an offensive and disrespectful manner towards (her) staff”, was offensive.

[23] When asked by the applicant why she was so incensed by his criticism of her the witness replied that he had called her integrity into question and that her sense of fairness and integrity was probably the most important thing to her.

[24] The applicant asked the witness why she had not “checked the facts” to see whether the accusations he was making were correct. The witness responded that she was not involved in the substantive claim but was concerned about the applicant’s language and the way he was talking to and about members of the Department, and that even had the facts as presented by the applicant been correct the language, tone and style were highly inappropriate and potentially a breach of the code of conduct.

[25] Mr Peters’ statement 2 noted that he became involved in the investigation of the applicant when the applicant objected to the involvement of Ms Vella, the delegate who commenced the preliminary investigation. Mr Peters reviewed the letter setting out the allegations against the applicant. The letter was then signed and given to the applicant. At the applicant’s request the time allowed for his response to the allegations was extended from one week to more than a month. Mr Peters and the applicant exchanged a number of emails about the process of the investigation and a meeting requested by the applicant was initially agreed to but did not actually occur.

[26] As Mr Peters had arranged to take extended leave over the Christmas holiday period, from mid-December 2009 his role in the Code of Conduct investigation was assumed by Ms Kathy Sly, the employee who acted in this position for that period.

[27] It was the evidence of Mr Peters that while he was on leave the applicant wrote to the Minister for Defence and made a number of complaints about both him and Ms Vella. These complaints were investigated and it was found that Mr Peters did not have a case to answer. On Mr Peters’ return from leave Ms Sly continued as the delegate in the investigation.

[28] When cross-examined, Mr Peters stated that there was no investigation report from the preliminary investigation carried out by Ms Vella as it was not a formal investigation but merely a gathering of information to enable the delegate to decide whether to commence a formal investigation or not.

[29] When asked by the applicant if he agreed that the matters which constituted the alleged Code of Conduct breaches were allegations made by the applicant, Mr Peters disagreed that they were “allegations” as the applicant had stated that people were disloyal, they lied and they were unethical. He agreed that the applicant had not used swear words but maintained that the applicant made statements about people without proof. When the applicant asked the witness if he had “looked for the proof” before making the allegations against him Mr Peters stated that that was not his concern, he was concerned with the language used and the fact that the applicant had committed a possible breach of the Code of Conduct in that he did not treat other APS personnel with respect and courtesy. When it was put by the applicant that Mr Peters had accused him of making allegations that are improper because he didn’t have the facts but had made allegations against the applicant without the facts, Mr Peters replied that the applicant had made quite deliberate statements about people, with no chance for the person to offer any rebuttal or any chance of explaining their side of the situation as the statements were made to third parties. Mr Peters noted that the process adopted for the Code of Conduct investigation allowed the applicant to respond to the allegations and make a full rebuttal.

[30] The witness was also asked a number of questions about various phrases used by the applicant in his emails to him. The applicant asked why Mr Peters considered that his use of the words “it would not be in your interest” constituted a threat. The witness maintained that the words were a threat and the applicant stated that they were meant “as a help”. Similarly the applicant put to Mr Peters that when he stated that “Ms de Salis was, therefore, clearly guilty of negligence” the statement was backed up by other statements. Mr Peters disagreed and suggested the language was discourteous.

[31] Mr Peters explained that he had mentioned in the letter containing the breach allegations that documents sent to a Minister’s office have a wide distribution because he was aware that was the case and just because documents were addressed to a Minister did not mean that the Minister was the only person who would see them. He noted that they could also be released under FOI legislation.

[32] When re-examined Mr Peters was taken to a recommendation made in the Blick report to the effect that should the applicant continue to make “extreme and unwarranted accusations” the Department consider Code of Conduct action against him. He also noted the following statement made by Dr Lloyd in his letter to the applicant of 21 July 2009:

“The department would view seriously any repetition of extreme and unwarranted statements about individuals, whether in relation to the matters covered in Mr Blick’s report, or in relation to any other matters. Any such conduct could result in APS code of conduct action being taken against you.”

[33] The statement of Ms Sly 3 described the process undertaken in relation to the Code of Conduct investigation from the time she assumed the delegate’s role on 14 December 2009 until the applicant’s employment was terminated on 10 March 2010.

[34] According to Ms Sly’s evidence the applicant responded to the breach notice in three emails dated 1 December 2009, 4 December 2009 and 11 January 2010, and she took all the matters contained in the three emails into account when preparing the letter of 29 January 2010 in which she set out her findings on each of the allegations made against the applicant. She noted that in the email dated 11 January the applicant made allegations of misconduct, harassment, bias and malicious conduct against a number of Defence personnel, affirmed the allegations and said that he was “proud of them”.

[35] Ms Sly noted that she was assisted in the preparation of the letter of 29 January by Ms Swain but reached her own conclusions in relation to each of the allegations. The letter determined that the applicant had breached a number of elements of the Code of Conduct and that, subject to the applicant’s response, the possible appropriate sanctions for those breaches, which were identified in the letter, was termination of his employment. The applicant was invited to respond to the letter in relation to the matter of sanction. The applicant was granted a number of extensions of time for the response, which was provided on 26 February 2010. An invitation to meet face to face to discuss the sanction was withdrawn as the applicant made it clear that he wanted to analyse the breach notice and would not meet to discuss the proposed sanction.

[36] Under cross-examination the applicant put to Ms Sly that he had on three occasions requested that the original Minute containing the allegations be redrafted to make it clearer, as he found it difficult to respond. Ms Sly stated that she did not understand why it was not clear to him but noted that he apparently understood the letter setting out her determination on the breaches.

[37] When asked why she considered that the applicant was not willing to take responsibility for his actions Ms Sly replied that it was because at no stage had he accepted responsibility or acknowledged that he had cast aspersions on peoples characters, or apologised to any of those people, and because he continued to make allegations. She also stated that the applicant’s response to her that “(a)ccusations do not constitute misconduct unless they are false and made dishonestly or carelessly. You have made no attempt whatsoever to show this is the case. The allegations you have made are therefore not allegations of misconduct at all. Would they be accepted in a court of law? I think you would be laughed out of court” showed the tone of the language and the threatening manner in which the applicant used that language when he referred to people.

[38] When Ms Sly was asked why she considered the applicant’s allegations about people to be offensive even if he considered them to be correct she replied that the allegations were extremely offensive in that they accused people of being disloyal, discourteous, fraudulent and negligent.

[39] At this point the applicant queried Ms Sly’s characterisation of his allegations and she replied that she considered referring to people as incompetent and negligent to show a lack of respect. The applicant denied that he had accused the Secretary of the Department of being incompetent and negligent but of hiding the incompetence and negligence of others. When asked by the tribunal if he considered that accusation offensive, the applicant replied “no, because I knew what had happened”. When queried further about the offensiveness of the statement the applicant explained that he had reached that view because a letter he received from the Secretary contained “so many errors that it indicated to me that the actions— that other people were being protected”.

[40] The applicant questioned Ms Sly about her decision to include in the breach notice the statement “I also note that you have impolitely stated that the Merit Protection Commission (the MPC) acted unprofessionally as they did not respond to your request in a manner of your choosing”. She replied that it was one of the many comments that demonstrated the applicant’s lack of respect which constituted a breach of the Code of Conduct. When asked by the tribunal why he considered the MPC had acted unprofessionally the applicant appeared to argue that it was because he had been told that their decision would need to be reviewed in a court and that they should have realised that he couldn’t afford to pursue the matter in a court. He also appeared to suggest that because he considered the decision was wrong it was, therefore, “unprofessional”.

[41] When asked to explain her statement that the applicant had, by his actions, “significantly damaged any trust the department has in you”, Ms Sly responded that any person in the workplace with management responsibility “would not be able to trust that (the applicant) would not continue to make such accusations as he has over the past several years”.

[42] Ms Sly also maintained that the MPC had upheld Ms de Salis’ decision in relation to the applicant, that statements made by the applicant to Ms Harris and Ms de Salis were threatening, and that the motivation for the applicant lodging a complaint against them immediately he was notified that they had made complaints about his conduct, was vexatious. Ms Sly confirmed that in reaching her decision she took account only of conduct engaged in by the applicant in 2009. She agreed that many of the breaches related to correspondence that was annexed to a letter to Mr Grzeskowiak in January 2009 and then sent on to the Minister in March 2009.

[43] It was also the evidence of Ms Sly that she did take into account a pattern of behaviour by the applicant that had extended over many years and was referred to in the Blick report. She also noted that the applicant had had the Code of Conduct drawn to his attention by a Division Head in 2004, but that there had been many instances since that time when the applicant had continued to make accusations about people’s character and behaviour. Ms Sly agreed that her findings had noted that the applicant had persisted in the complained of behaviour even when the organisation was addressing his concerns through an independent enquiry. She noted that the applicant had made complaints which were investigated and found to have no basis but that he continued to make accusations. Under questioning from the tribunal the applicant agreed, eventually, that he had not only continued to raise matters with delegates who had decided issues unfavourably to him but had also taken his concerns to the Minister.

[44] Ms Sly maintained, under cross-examination, her view as set out in her findings that the applicant had forwarded documents containing inappropriate comments to numerous people across the organisation. She also maintained her view that it was necessary to apply an appropriate sanction to bring to the attention of others in the workplace that such conduct would not be tolerated or allowed to continue.

[45] When re-examined by Mr Bavington Ms Sly stood by her statement contained in her letter to the applicant of 29 January 2010 in which she referred to the many people she considered the applicant had made offensive statements about:

“All of these people occupy decision-making positions, where their reputation is important. When you are dissatisfied with the decisions or actions taken you forwarded offensive and disrespectful statements about a person’s character or actions to the department’s ministers with no regard to the consequences to the person’s reputation. On this basis I consider that you have repeatedly used offensive and disrespectful language (what you term as allegations) which has impugned the reputations of Defence employees.”

The applicant’s case

[46] The applicant’s case was set out in a number of documents, the primary ones being his submission filed on 26 May 2010 including Annexures A–D and his document entitled Comments on Respondent’s Outline plus the Addendum.

[47] In essence, the applicant did not deny the conduct of which he was accused. He did however deny that the conduct constituted a breach of the Code of Conduct claiming that he had made “allegations” which he considered to be true and if a proper enquiry were held into the matters raised, his allegations would be found to be proved. The applicant appeared to maintain that he had done nothing wrong, because his statements were not offensive as he considered them to be true.

[48] In his submission of 26 May the applicant maintained that:

the charges against him were false;

the finding incorrect; and

the sanction excessive.

He went on to complain that his termination was not a punishment for genuine misconduct but “a means to stop [his] complaining about abysmal management by some of them”.

[49] The applicant’s submission explained in some detail the matters which led to his writing one of the documents which was the basis of a number of the charges against him. He stated that the charges were not bought by Defence but a “small group of senior Human Resources staff” and were instituted ‘“maliciously and dishonestly” after he made complaints against two of these staff.

[50] The submission sought that Fair Work Australia investigate the substantive matters which the applicant claimed had led to the Code of Conduct charges being laid against him (that is, a pay error that was the subject of an unfavourable (to the applicant) MPC decision).

The applicant claimed that matters other than conduct which occurred in 2009 had been used in making the findings against him, that the officials involved were biased, the charges vague (denying him the ability to adequately respond) and that the sanction was excessive. His written submissions covered these matters in some detail.

[51] The applicant’s case was that, although the charges were said to relate only to his conduct in 2009, they included excerpts from Minutes written in 2007and 2008 (particularly in relation to the pay mismanagement matter). He stated that if only 2009 matters were considered the termination of his employment related only to:

an appeal to the Head People Policy for him to reconsider his December 2008 exoneration of Ms Harris and Ms de Salis on charges of misconduct he had made against them;

a March 2009 letter to the Minster for Defence advising him of personnel management problems (with enclosure);

an April 2009 email to the Minister for Defence Science and Personnel (with enclosure); and

a May 2009 follow-up letter to the Minister for Defence Science and Personnel.

The applicant maintained these matters did not constitute misconduct and, even if they did, the sanction was excessive.

[52] Throughout his submissions (in writing and orally) the applicant maintained his position that “an allegation is not necessarily misconduct” and for misconduct to occur the allegations must be proved to have been made dishonestly or carelessly. The applicant also claimed that Defence presented no argument to show that his “tone” was offensive or lacking in respect. He also claimed that he did not use inherently impolite language but made serious accusations using appropriate words. He also claimed that there was no evidence that he had impugned reputations or brought Defence into disrepute.

[53] The applicant’s written submissions claimed that:

Ms Sly’s 29 January 2009 formal Minute, purporting to show her reasoning for finding guilt, indicated incompetence, negligence and dishonesty;

Ms Sly’s delegation of the important role of drafting the Minute was unprofessional and was disrespectful to him;

errors made by Ms Sly indicated that she was merely acting as a puppet for Ms Vella;

Ms Sly may have been rushed into the role as a more compliant delegate than Mr Peters might have been.

there were many examples of incompetence or unprofessionalism in the Minute prepared by Ms Sly;

Ms Sly’s assertion at paragraph 16 that his use of the word “allegations” indicated that his accusations ‘were submitted without proof ‘ was illogical;

examples highlighted by him “indicate a desire by Ms Sly to find [him] guilty and her willingness to fabricate support for such a find. They indicate misconduct”;

Ms Sly’s statement at paragraph 21 that she was not concerned with the content of the matters he raised, only the lack of courtesy and respect, indicated how confused she was, as she should have been most concerned with the content;

he wrote only four times: to Head Personnel Policy (once) and to ministers (on three occasions, including a response and a follow-up) which did not support Ms Sly’s statement that his behaviour was repetitive;

none of the correspondence constituted misconduct, he did not use inherently

impolite language, or verbal abuse, or physical abuse, or threats, or dishonesty; and

none of the letters to ministers was likely to cause any harm to any person.

[54] The applicant summarised his view of Ms Sly’s actions as follows:

“Ms Sly’s numerous incorrect and irrelevant references to the Blick Inquiry showed that she did not consider matters carefully. By quoting the Blick Report she showed that she had considered more than just the 2009 actions; therefore in saying that she only considered 2009 actions she either lied, or was confused, or both. If she had liaised with me before making her guilt determination, or even after doing so (and I asked for meetings on both occasions) she could not have made such basic errors. However, she thought she had no need of facts because her mind was already made up. Her actions were unprofessional and unethical.”

[55] When cross-examined by Mr Bavington the applicant agreed that he had brought a support person to meetings he had had with Ms Swain.

[56] When asked whether he had brought evidence to refute the allegations made against him the applicant indicated that, in relation to some of the claims, there was no evidence in the documents to substantiate them. He claimed, for example, that there was no evidence that he had failed to treat Ms Morrisby with respect or courtesy. He did not, however, deny making any of the statements attributed to him.

[57] Nor did the applicant deny that the letter informing him of Ms Sly’s findings invited him to make submissions on the matter of sanction and allowed him a period within which to do so.

[58] It was put to the applicant that he had sent the documents which formed the basis of most of the complaints against him to the Minister for Defence Science and Personnel, and had attached to those documents the original letter that he had written to Mr Grzeskowiak. Again, the applicant did not deny that he had been the author and sender of the emails and letters referred to in, and attached to, Mr Peters’ letter setting out the charges against him. He agreed that he had never claimed the documents were false or forged or otherwise not a true representation.

[59] The applicant did not deny that, on 25 October 2005, he had been read the Code of Conduct by Mr Sharp (a division head) and that the occasion had been transcribed.

[60] The applicant was referred to a number of pieces of correspondence sent to him over a period of some years by different Defence managers, which included the following statements:

“I’m still considering action in relation to your correspondence to Ms Cadd and others. In the meantime, I suggest you tone down your accusations, being mindful of the language you use and of treating others with respect and courtesy in accordance with the APS Code of Conduct.” 4

“I’d also suggest that you be aware of the tone of your correspondence. It is not appropriate to use threats as you have done here, and it is out of line to accuse people of dishonesty.” 5

“If you believe you have evidence of fraud contact the inspector-general. If you have no evidence other than your dissatisfaction with a decision based on a proper consideration of your application for review, then stop acting in an offensive and disrespectful manner towards my staff.” 6

“I recommend that you consider carefully in future the language that you use in correspondence in such matters, as in my opinion you have at least contributed to inflame matters by making strong and unwarranted accusations against staff.” 7

[61] The applicant was then taken to that part of the Blick report which was devoted to the matter of the tone of the correspondence sent by him to Defence staff, ministers and others. He agreed that he had first received a draft copy of the Blick report on 11 February 2008.

[62] The applicant was referred to the following passage from the Blick report:

“Mr Salmond however cannot be said to adopt a reasonable tone in much of his correspondence. Although his first letter to a person or on an issue may be courteous, characteristically he descends into abusive language once he receives a reply that displeases him.” 8

[63] The applicant was also taken to this Recommendation of the Blick report:

“That the department not consider possible action under the APS Code of Conduct in relation to past actions by Mr Salmond arising from matters dealt with in this report, but that in the event of his continuing following receipt of this report to make extreme and unwarranted accusations of the kind discussed in it arising from whatever issue, the department should explore the possibility of such action.” 9

[64] The applicant also acknowledged the following paragraph contained in the letter sent to him by the Defence General Counsel, Dr David Lloyd, on 21 July 2009:

“The department would view seriously any repetition of extreme and unwarranted statements about individuals, whether in relation to the matters covered in Mr Blick’s report, or in relation to any other matter. Any such conduct could result in APS code of conduct action being taken against you.” 10

[65] In response to a question, the applicant conceded that the Code of Conduct action was not taken in relation to any emails written by him that had been reviewed by Mr Blick, but noted that comments made by Mr Blick were included. He further acknowledged that the allegations of the breach of the Code of Conduct did not refer to any of the four substantive matters, or the two FOI requests, that Mr Blick reviewed, agreeing that the only reference was to “tone” and then only to the tone of emails that were written during or after the Blick report. The applicant agreed that the emails that formed the basis of the Code of Conduct allegations were written in 2009 and after he received the draft Blick report.

The submissions

[66] On the respondent’s behalf Mr Bavington summarised the evidence of the three Defence witnesses noting that Ms Harris’ evidence was that she bore the brunt of a number of the applicant’s accusations. She gave evidence of the impact of his accusations on her, her staff, and her organisation as a whole. It was submitted that her evidence showed that she had tried to engage by email with the applicant to steer him to appropriate ways of having reviewed the decisions with which he disagreed. It was put that the applicant had responded with increasingly offensive accusations about her and her staff, which were ultimately forwarded by the applicant to her first and second-line supervisors, the new secretary and several ministers and their staff.

[67] Mr Peters had given evidence about how he considered the material put before him and how he came to the conclusion that there was sufficient evidence to formally allege that Mr Salmond had breached the APS Code of Conduct. One of his staff, professionally, withdrew from the matter when the applicant made statements that he perceived a potential for bias. The applicant then made allegations of impropriety against Mr Peters, which were investigated and determined to be unfounded.

[68] Ms Sly’s evidence went to her consideration of the applicant’s (scant) response to the allegations and the manner in which she reached her conclusion as to the breaches and the sanction.

[69] Mr Bavington noted that the applicant had given evidence that he wrote and sent the emails that Mr Peters had referred to in the Minute setting out the allegations. It was the applicant’s evidence that he intended to write and to send those emails.

[70] It was put for the respondent that the applicant’s evidence about the Code of Conduct process was that he had received reasons for his termination, but not set out exactly the way he would have liked; that he was given an opportunity to respond; and that he was given an opportunity to have a support person attend meetings with him. He had also given evidence about a series of warnings he had received over a five year period.

[71] Essentially, it was put for the respondent that the applicant “just doesn’t get it”. That he had continued to claim, up to and throughout the hearing, that he could use whatever language he liked about others, if he believed his allegations to be true.

[72] In relation to the statutory declarations of character witnesses tabled by the applicant, it was argued that these should be given little weight as the character witnesses were not presented for cross-examination and, in any event, were not directly involved in the matters which resulted in the dismissal. It was also conceded that the applicant’s work ethic was not at issue.

[73] The respondent relied on a number of authorities to support the contention that the applicant’s dismissal was not harsh, unjust or unreasonable or unfair. In addition, it was argued that the evidence given about the applicant’s personal circumstances did not show that the effect of the dismissal was rendered harsh by the impact on the applicant in his particular circumstances. He was financially sound despite his inability to obtain other employment.

[74] It was the applicant’s position that he did not consider the claim that his tone had become increasingly offensive was correct. He believed that a reading of all the emails and letters showed that his tone was no more offensive that that of the Defence officials involved.

[75] The applicant claimed that his intent was not to offend anyone but to speak with people about decisions that had been made. He considered the “whole incident” to be a problem arising from lack of communication because Defence officials refused to speak with him.

[76] He had discerned from Ms Sly’s final Minute that the matter she found most offensive was his letter to the Minister annexing an enclosure critical of Ms Harris and Ms de Salis. The applicant stated that there was no intent on his part to be critical of them.

[77] The applicant denied Mr Bavington’s claim that he felt he could use any language he liked to describe people. He stated that he believed the words he had used to be correct but had recently come to understand that people interpret the meaning of words differently and he believed that, in the future, he would be more careful. He reiterated that he did not use words intended to be offensive.

[78] It was put by the applicant that over his ten years in the public service he had written about two issues where he had “suffered great loss” because of Defence mistakes. He claimed to have naturally been “upset”. He considered they were two extraordinary situations which were unlikely to happen again and his attitude in the future would be different. He also considered that he now had a better understanding of how his words could offend some people. In essence, the applicant sought reinstatement to show that he could be a good Defence employee.

Consideration

[79] In deciding this matter I have had regard to all those matters set out at s. 387 of the Fair Work Act 2009.

whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[80] I am satisfied that there was a valid reason for the applicant’s dismissal. The applicant had committed many breaches of the APS Code of Conduct and continued to breach that Code throughout the investigation into his breaches. The applicant made numerous unsubstantiated allegations about many officers of the Department of Defence together with similar disparaging comments about Ministers and at least one member of a Minister’s staff’. Every comment was inconsistent with the applicant’s obligations under the APS Code of Conduct to treat others with respect and courtesy.

[81] The breaches of the Code committed by the applicant included making accusations in writing to Ministers, their staff and senior Defence personnel that:

a named Defence employee was unethical and guilty of misconduct;

a Defence employee lied and was dishonest;

the MPC was unprofessional;

a named Defence employee lacked the courage to face a person she knew she had treated unfairly;

two named Defence employees acted fraudulently, vindictively and unprofessionally;

a Defence employee’s reasoning was so illogical that it was not based on mere incompetence but dishonesty;

a named employee was unethical, unprofessional and discourteous;

a named Defence employee was guilty of negligence;

a named Defence employee made misleading statements (probably deliberately so);

a named Defence employee acted incompetently, unprofessionally, negligently, vindictively and fraudulently.

[82] The applicant seems to believe that his comments were justified, and therefore were not breaches of the Code that amounted to misconduct, because he had suffered loss as a result of what he variously alleged to be the incompetence, dishonesty or fraudulent behaviour of Defence employees. The applicant is wrong. His conduct was not justified by any wrong, real or perceived, that he may have suffered due to any mistaken act of an officer of Defence.

[83] The applicant was entitled to make complaints if he considered he had a legitimate complaint to make. He was not entitled to impugn the honesty or character of Defence staff in order to make those complaints. I have read every document that the applicant has submitted in relation to this matter and can find no evidence to support any of the extreme accusations he included in his emails to Defence staff and to Ministers. Even if the evidence did exist would not justify the type of language adopted by the applicant.

[84] That the applicant is unable to distinguish between language that is offensive and extreme and language that is appropriate is demonstrated by his claim that there is no difference in the language he adopted and that adopted by Defence officers in their dealings with him. Numerous examples of offensive language used by the applicant were in evidence, not one example of language of the same type used by other Defence staff was in evidence. The correspondence of Defence officials showed admirable restraint given the unsubstantiated (and I use the word advisedly) allegations made by the applicant.

[85] It appears to be the applicant’s belief that he can claim that a person is dishonest, engages in fraudulent practices, is incompetent, covers up dishonesty or is negligent, if he holds that view. He then appears to believe that once he has made such a claim an investigation will demonstrate that the view he held is correct, thus justifying the extreme language. Once again the applicant is wrong. Many investigations were apparently conducted into matters raised by the applicant - while he may have been vindicated in a small way, in that an error or misjudgement on the part of some other official was identified, I could find nothing that supported any of the offensive allegations made by the applicant. No evidence of dishonest, fraud or disloyalty. Mr Blick reviewed the applicant’s complaints in a great deal of detail and found some were legitimate. Mr Blick, as can be seen from the evidence, found nothing which convinced him that the tone adopted by the applicant was justified by anything he discovered. He devoted a chapter of his report to making this point very clear and, in effect, giving the applicant, and the Department, a very clear message that any further conduct of a like nature should not be tolerated.

[86] On at least three occasions through the hearing I challenged the applicant about extreme assertions he had made in his email correspondence in order to discern whether there could possibly have been any justification for the language adopted. On not one occasion was I satisfied that the claim made by the applicant had any validity. These related to his having accused a Defence employee of lying about having no time to meet with him 11, having accused the Merit Protection Commission of acting “unprofessionally”12 and having accused the Secretary of the Department of covering up the misconduct of others13. It is my view that in the majority, if not all cases, an examination of the applicant’s claims would yield similar results.

[87] It must also be noted that on each occasion the applicant’s complaints were investigated and resulted in an outcome with which he did not agree he proceeded to make similar offensive allegations of dishonesty, incompetence and bias against those who had investigated him.

[88] Finally, a particularly disturbing aspect of the applicant’s conduct is that his extreme and unsubstantiated allegations were sent to Minsters and senior Defence officials in circumstances where the victims of his slurs were unable to defend themselves and, most likely, would be unaware that their characters were being denigrated to such persons.

whether the person was notified of that reason

[89] The applicant complained that the letter delivered to him in early December setting out the allegations that he had breached the Code of Conduct was written in such vague terms that he was unable to provide an adequate response.

[90] While I do not suggest that the letter containing the allegations was a perfect example of its type I am satisfied that the allegations were sufficiently detailed to enable him to respond. I do not consider it necessary for the delegate to have explained to the applicant why the remarks complained of were offensive - to any reasonable person that would have been obvious. That the applicant questioned the character ascribed to his various allegations is an indication of the basic problem, summed up in submissions by Mr Bavington that the applicant “just doesn’t get it”.

[91] The applicant was well aware of the matters of which he was being accused. He was provided with full copies of the offending emails and the letter set out the excerpts from those emails considered to have breached the Code. The applicant’s immediate response was to denigrate all those persons with any connection to the letter, to make formal complaints about their motives and to declare that he was “proud” to have made the allegations that constituted the Code of Conduct breaches.

[92] I am satisfied that the applicant was clearly notified of the reasons for his termination by the initial letter from Mr Peters and the two subsequent letters signed by Ms Sly.

whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

The applicant was invited to respond to the allegations that he had breached the Code of Conduct. He did so through a series of emails referred to by Ms Sly in the documents setting out her findings. Although the applicant claimed he was hampered in making an adequate response by the manner in which the allegations were set out in Mr Peters’ letter, I do not accept that claim. In my view there was little the applicant could have said in response. He could not deny the conduct, he freely admitted it. He made it clear that he did not consider his actions amounted to misconduct. He claimed his comments were justified but presented no evidence to substantiate this claim. For the most part he merely, and in my view unfairly, continued his campaign of denigration of various Defence personnel, including the delegate responsible for the investigation.

any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[93] There was no evidence of any such refusal. The evidence was that the applicant was assisted by a support person at any meetings that occurred in relation to the Code of Conduct investigation.

if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[94] The applicant’s work and work ethic were not questioned. The dismissal related only to the conduct which constituted Code of Conduct breaches.

the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[95] The Department of Defence is a very large agency of the Commonwealth Government There was no claim that the size of the agency affected the procedures adopted in effecting the dismissal.

the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[96] There was no evidence that any lack of human resource management specialists or expertise impacted on the procedures adopted to effect the dismissal. There was a submission that some very experienced human resource personnel were unable to be utilised in dealing with the dismissal as a result of earlier dealings with the applicant. For example, Ms Vella stood aside when her involvement was challenged by the applicant.

any other matters that FWA considers relevant

[97] There are a number of other matters which I have taken into account in determining this matter:

the applicant’s long period of service in the air force and his ten years in the APS;

his complaints about Defence mismanagement and the manner in which Defence has dealt with those complaints (particularly the extensive independent review conducted by Mr Blick)l

the fact of the numerous warnings given to the applicant by Defence managers about the tone of his correspondence over a number of years - not one of which was delivered in an offensive manner, but many of which appeared to have provoked more offensive conduct from the applicant;

Mr Blick’s unambiguous comments on the applicant’s inappropriate tone and his warning about future Code of Conduct proceedings;

the fact that the applicant was aware of Mr Blick’s comments about the “tone” he adopted from February 2008 but continued to disseminate emails containing the offensive accusations well into 2009; and

the applicant’s continued denigration of Defence personnel up to and at the hearing of this matter.

Conclusion

[98] The applicant is a mature former member of the air force who has occupied positions of considerable responsibility. It is almost incredible that such a person appears unable to appreciate that the behaviour he engaged in was offensive and a breach of the APS Code of Conduct. The likely results of his continued behaviour were brought to his attention quite clearly and unambiguously and still he persisted with making his complaints and accusations in a totally unacceptable manner.

[99] At no point was the applicant ever prevented from making complaints. His complaints were all dealt with, not always to his satisfaction or as quickly as he would have wished. The applicant was advised that the manner in which he made his complaints was not acceptable and was in breach of the Code of Conduct. He ignored that advice and suffered the consequences. I must agree with the Defence submission that the applicant would be unlikely to change his ways if his employment continued. Despite every warning he received he refused to accept that his behaviour amounted to misconduct. His only concession, on the final day of hearing, was that his words might have been misinterpreted by some people. The termination of the applicant’s employment was the only appropriate sanction in all the circumstances of this case.

[100] Taking into account all those matters set out above I am not satisfied that the termination of the applicant’s employment was harsh, unjust or unreasonable. The dismissal was not unfair. The application is dismissed.

COMMISSIONER

Appearances:

Applicant - in person

Respondent - Mr P Bavington

Hearing details:

Canberra

30 June 2010

1 July 2010

1 Exhibit D1

2 Exhibit D2

3 Exhibit D3

4 Email Vella to applicant 9 December 2004

5 Email de Salis to applicant 19 December 2007

6 Email Harris to applicant 20 December 2007

7 Letter Grzeskowiak to applicant 19 December 2008

8 Blick report Chap VIII Para 4

9 Blick report p79 Recommendation to Chapter VIII Tone of Correspondence

10 Letter to applicant 21 July 2009

11 Transcript PN 386 and following

12 Transcript PN 813 and following

13 Transcript PN 767 and following

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