FEDERAL COURT OF AUSTRALIA
Pelechowski v NSW Land & Housing Corp [1999] FCA 1110
INDUSTRIAL LAW – Termination of Employment – alleged termination on basis of applicant being a whistle-blower – Serious Misconduct – Failure of Applicant to address substance of performance of conduct
KARL PELECHOWSKI v NSW LAND AND HOUSING CORPORATION
NG 2875 of 1995
JUDICIAL REGISTRAR: WALKER
DATE: 13 AUGUST 1999
PLACE: SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NI 2875 OF 1995 |
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BETWEEN: |
KARL PELECHOWSKI Applicant
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NEW SOUTH WALES LAND AND HOUSING CORPORATION Respondent
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The Application be dismissed
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NI 2875 OF 1995 |
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BETWEEN: |
Applicant
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AND: |
NEW SOUTH WALES LAND AND HOUSING CORPORATION Respondent
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JUDICIAL REGISTRAR: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
THE CLAIM:
1 Mr Pelechowski, the applicant in these proceedings, filed his application for unlawful termination on 14 July 1995 and, later on 20 October 1995, an affidavit in support. The matter came before the Court on a number of direction hearings and was listed for hearing for eight days commencing on 4 November 1996. These dates were vacated when the Court became aware of criminal proceedings instituted by the applicant against the Director of the NSW Land and Housing Corporation, pursuant to the Protected Disclosures Act 1994. (The NSW Land and Housing Corporation is referred to as “the Department” hereinafter.) Despite these proceedings having been dismissed on the basis of no prima facie case on 27 May 1997, the matter remained dormant until called over by the Court on 23 April 1999 to determine its status. Subsequently, it was set down for hearing for three weeks commencing on 28 June 1999.
2 The applicant relied on his evidence attested to in his Affidavit of 19 October 1995 as well as oral evidence. From this evidence the claim would appear to be as follows:
a. Breach of s 170 DE(2) in that the termination was harsh, unjust or unreasonable (this section now invalid).
b. Breach of s 170 DC in that the applicant did not have an opportunity to respond to the allegations against him.
c. Breach of s 170 DF(1)(a) that the applicant was terminated because of temporary absence from work because of illness or injury.
d. Breach of s 170 DF(1)(e) that the applicant was terminated for the filing of a complaint, or the participation in proceedings, against his employer involving alleged violation of laws or regulations or recourse to competent administrative authorities.
e. Breach of s 170 DF(1)(f) that he was terminated because of physical disability, perceived mental disability, race and family responsibilities.
f. Breach of s 170 DB(1) that the applicant was not given the statutory period of notice pursuant to the Act.
3 Added to these breaches of the Act, the applicant alleges that there are two propositions that explain his termination:
1. As a “whistle-blower,” he had made disclosures of corrupt dealings within the Department of Housing to the Independent Commission Against Corruption in 1990 and consequently, the Department, Magistrates and Judges of the District and Supreme Courts, among others, conspired to have him dismissed.
2. The applicant had discovered his immediate supervisor, Ms Maree Welsh, carrying out illicit dealings during working hours and, upon her discovery of this, fabricated evidence against him in order to have him removed from the Department. Ms Welsh’s supervisors, Mr Anton and Mr Dries colluded to bring this about.
4 When asked what proof he had with regard to the allegation that the Department and others had organised his dismissal the applicant replied:
“By circumstantial evidence, by repercussions that I’ve suffered ever since.”
During cross-examination he admitted he had no evidence of there having been any approach by someone in ICAC to the Department of Housing over his disclosures.
5 By way of an example of the collusion he alleged that because the Department had psychiatrically examined him, and that this was a well-known method used to rid whistle blowers from their employment. A statement in a letter of report by Mr J. Dries, dated 12 September 1994, evidenced the proof that he was a whistle-blower. The purpose of this report was to discuss a range of matters concerning the applicant’s performance, attitude and attendance record. In his report, Mr Dries stated the applicant had raised a range of matters with him during the interview. The relevant section is set out below:
“Helen Colbey, Dick Flint and Lyn Baker and their role in discriminating against him – his suspension and according to him the total lack of justice he has received. Initially the impression was gained that he was claiming some responsibility for what had happened to the Department, the changes and the departure of Officers such as Helen Colbey and Dick Flint. When pressed about this – I asked if he was a “Whistle Blower”, the meaning of which I had to explain…”
This mention of whistle-blower, according to the applicant, is proof he was perceived by the Department as such.
6 With regard to the allegations against Ms Welsh, the applicant relies on statements made by the Magistrate in the Protected Disclosures proceedings. After dismissing the applicants claim on the basis of no prima facie case, the Magistrate gave his reasons and made various comments. The Applicant relies on the following statements:
“…I need not make a finding to this effect, so I don’t need to hear from Mr Goot on it finally – I’ve heard a great deal already – I am inclined very strongly to the view that Miss Welsh fibbed a great deal of the time. I accept what Mr Pelechowski put which is basically that she made false allegations about his not working at times when, for example, she was down at the ATM drawing out money. I am suspicious of the rounding off to the nearest five minutes …I don’t believe her at all and I certainly think she was, herself, as indeed she admitted in the proceedings operating a business in departmental time…”
These comments, together with copies of Ms Welsh’s ATM receipts and print out documents from the Department’s Record Management Section (RMS) are relied upon by the applicant to prove his case. Consideration of the Ms Welsh matters will be dealt with further.
7 The applicant also alleges the Department tried to set him up with criminal charges by complaining to the Liverpool Police regarding harassing telephone calls made by him and his friends. The applicant produced no evidence relating to this claim.
8 In relation to the charges made against him for his termination the applicant claims the disciplinary process was predetermined and the whistle- blowing aspect was ignored. He maintains that he was never given any lawful order, neither orally nor in writing. His evidence in-chief was:
“So I wish to state that there was no lawful order given, or even made whether written or even oral by whoever is supposed to have made this lawful order/ I wish to state on the record sake is that this lawful order I thought pertained to me refusing to crush cardboard boxes…. I declined because my back was – I could have aggravated my back.”
He further stated that he would supply a list of his medical records that would refute the leave charges. This document, although promised throughout the hearing, was produced on the last day and not put to witnesses. He also maintains the inquiries conducted under the statute were not independent and further states:
“But on the surface seeing the grounds, these charges, even a school boy wouldn’t be canned in a classroom on these charges.”
The Background and Process of termination
9 The applicant commenced his employment with the Department of Housing on 31 August 1987, as a Clerical Assistant, General Scale. He was later reclassified on 17 August 1988 as a Clerk, General Scale, where he occupied the position of Purchasing/Stores Officer. It is clear he considered his work as menial and below his expectations, given his prior work as a real estate agent. In his Affidavit, the applicant annexed several medical reports, including a report by Dr Cherry dated 5 December 1991, which states:
“Mr Pelechowski tells me that prior to his injury he was involved in mainly manual duties of what he considers to be menial nature and below his level of expertise.”
10 Another, Dr Barclay’s report of 18 March 1993, refers to a report of Dr Roberts and quotes:
“…The way Mr Pelechowski put that to me was that he did indeed dress differently to the other members of the staff at the level of employment at which he was engaged and although he did not use the termination his interpretation of that was that firstly the staff thought he was putting on airs and big noting himself and that because he was so differently dressed to them, that it was indeed likely that he was in some way a spy for the central administration of the department. Mr Pelechowski explained that following the loss of his real estate business this was a big come down for him to be employed as a very low grade clerk…”
11 Within twelve months the applicant commencing his employment, Mr J. Dries, the Administrative Services Manager, was sufficiently concerned with his refusal to return to duty after a period of recreation leave to warrant completing an official report. While on recreation leave from 29 December 1988 to 13 January 1989, the applicant contacted Mr Dries on 10 January 1989 for permission to extend his recreation leave for one week. Mr Dries, after consultation with the applicant’s section leader, could only extend the leave two days. Mr Dries report of this incident (exhibit R1, document 5AB) indicates the applicant gave “the need for his body to mend and prepare itself for a return to work” as a reason for the extended leave. Mr Dries then states the applicant rang once again, this time demanding the leave, despite being told the department required him at work. The applicant’s evidence in cross-examination as to the reason for this extended leave was typically evasive, although he did admit that he had not said it was for stress. He said:
“No, I wasn’t brave enough to say that it was stress.”
12 After it was suggested to the applicant that this leave was eventually recorded as sick leave, the applicant states:
“..yes, it was stress leave, I recollect that vividly.”
Subsequently, he contradicted himself by admitting he declined to tell Mr Dries the reason for the leave was stress. The applicant submitted medical certificates for this period certifying headache and sinusitis and, after Mr Dries had sent his report to the Human Resources Branch, the applicant was allowed to take the leave as sick leave. Following this event, the applicant was interviewed by Mr Dries and Mr Kennedy. Mr Dries reported (exhibit R1, document 5AC) that:
“(1) Mr Pelechowski stated he was aggrieved and hurt, and could not understand why I had submitted the report. He stated he had not been well. I pointed out to Mr Pelechowski that he had not indicated any specific illness on 16/1/89. He disagreed. He also stated he was now being treated by his Doctor for stress related ailments.
(2) Mr Pelechowski stated he has worked hard in his position and had always done his best.. I advised him this was not the point of concern; and what is of concern are the matters dealt with in my report. I also advised Mr Pelechowski that I was disappointed with the attitude he had displayed not only towards my directions but to the work situation in the general services section and comments regarding other officers. Especially when he extended his leave a further week…
(4) Mr Pelechowski was asked if he had any other problems he would like to talk about. He indicated there were other problems, but he did not wish to discuss them.”
13 This evidence establishes the applicant was having problems at work before he reported what he refers to as corrupt activities to ICAC in 1990. The applicant’s evidence in cross-examination at this stage also demonstrated an persisting attitude and demeanour and is considered further on.
14 On 7 September 1989, the applicant sustained an injury to his lower back while lifting a box. He was off work following this injury for two months, returning on 13 November 1989 on light duties for 4 hours per day. A medical certificate from Dr D.A. Cherry, produced by the applicant and dated 10 November 1989, stated the applicant had also indicated a degree of emotional stress arising from his work environment and exacerbated by his injury. Subsequent to this, Ms Kidd, a rehabilitation officer instructed the Administrative Services Branch to counsel the applicant and determine the reason for his emotional stress. Although an interview was undertaken, the applicant was unwilling to discuss the matter and no assistance could be given.
15 The Commonwealth Rehabilitation Service was appointed as a provider to the applicant and a program to return him to his pre-injury duties was issued on 11 December 1989. On 16 February 1990 the applicant’s hours were reduced to 3 hours per day, after a disagreement with the provider and the applicant’s doctor. The CRS provider, Ms Smith, did not believe the applicant was responding to the program. In May 1990, the applicant was returned to four hours per day. Around this time, Mr D. Aslanis, the Personnel Officer, stated in a report dated 23 September 1991 (exhibit 31) he became involved as the Rehabilitation Co-ordinator in the applicant’s case. On page 2 of that document he states:
“From my recollection, Mr Pelechowski had a number of meetings with me in my office, some lasting two hours or more. On most occasions, Mr Pelechowski stance was clearly provocative and adversial, informing me in what can only be described as a “ranting and rambling” manner, of the conspiracy within Administrative Services Branch to have his services terminated, and past difficulties he had in the real estate industry with a particular former colleague, who had all but destroyed his life, through a number of shady business practices. Mr Pelechowski would invariable be in a very agitated state and would never be still. He raved on about a number of diverse issues, such as theology, global warming and the end of civilisation. His attitude was most unco-operative one, and he would quite often be insulting to me personally, claiming that I was part of the alleged conspiracy…Mr Pelechowski was unsuccessful at his attempts to be appointed to both the Grade 3-4 and Grade 1-2, and appealed against both decisions, again claiming there had been a conspiracy against him and claiming that “deals” had been done etc. Claims which were made with little success at the G.R.E.A.T. Mr Pelechowski could quite simply not accept that he was not the best applicant for either position.
16 On Friday 1 June 1990, the applicant approached Mr Dries for an interview in order to discuss matters affecting him. According to Mr Dries report (exhibit R1, document 13) the following matters were discussed:
1. A complaint by the applicant that he was only being paid 50% of the higher duties allowance. In response, Mr Dries advised him that this decision was based on his reduced hours and was made following consultation with the applicant’s supervisor and the officer in charge of General Services.
2. An allegation that overtime to cover backlogs in his position was unnecessary since his return to work as there was little work left undone by himself. Mr Dries advised the applicant that his allegations could be perceived as being serious and he said the applicant replied he was not making accusations but only seeking fair treatment.
3. At various times during the interview, the applicant stated he had been ill-treated, kept uninformed, bastardised and kicked in the guts.
4. He further stated his doctor had advised him to cease contact with the Commonwealth rehabilitation Co-ordinator. He implied he had not been fairly treated in the rehabilitation process and suggested inferences were made that he was malingering. Mr Dries asked for specific details but said the applicant would not elaborate. Mr Dries then warned him that if he considered he had been discriminated against or maligned he should not make statements in the context of full details, as innuendo was as damaging to others as he felt suggestions of assaults were to his own character.
5. The applicant advised he would be appealing the decision to appoint Mr Paul Turner to the position of OIC General Service Clerk.
17 Mr Dries summarised the rehabilitation complaint by saying he had discussions with the Rehabilitation Co-ordinator and understood there was some concern regarding Mr Pelechowski’s general condition and the question of having independent counselling carried out was being considered. He said he felt that it became absolutely necessary and should be arranged as soon as possible. As far as treatment by his supervisors was concerned Mr Dries said that everything possible had been done to assist the applicant since his injury, for example, relaxed attitude to his hours of work (no set starting and finishing times), co-operation with Rehabilitation Centre and department co-ordinators, kept informed of changes and assisted with his substantive appointment to the position (general scale) in 1988. More recently, a sympathetic attitude was taken when short leave was recommended and approved after the applicant had malicious damage to his home.
18 In conclusion to his report Mr Dries stated:
“Dealing with Mr Pelechowski has become difficult in the sense that nothing is achieved in interviews or counselling sessions, and I now have concern about the affect his attitude is having on himself and his supervisors. Mr Pelechowski’s current attitude and behaviour are I feel caused by more than his back problem. At present he considers everyone is against him and they will close up ranks to beat him. He does not communicate very well and this is having an affect on the General Services area and the manner in which it operates to the extent that the interview process for the position of Purchasing Officer (Clerk Grade 1-2) has not been commenced. Mr Pelechowski has applied for this position. I had to instruct the OIC General Services to convene a panel, but since the subject interview have withdrawn the instruction. It may be necessary to convene the interviews myself, as Mr Kennedy A/O Building Services convened the interviews for the OIC General Services position, the decision to which Mr Pelechowski intends to appeal, and Mr Paul Turner was selected for the position.”
19 With regard to the applicant’s complaints as to the rehabilitation programs, it certainly appears the department was complying with all the applicant’s requests and in fact had allowed him to come and go as he pleased. His evidence in cross-examination confirms this position:
“Q. Now I put it to you that you had been extended by the department every courtesy and assistance since your first injury, that’s in 1989. You would agree?
A. In the main, yes.”
20 However when this question was put to the applicant a short time later, typical to the manner in which he answered most questions, he replies that he did not agree. He then interrupted the cross-examination with a request to supply as an exhibit his motor vehicle, which related to an accident he had in April 1991.
21 On 13 February 1991, the Chief Accountant, Mr Ryder, had reason to direct the applicant as follows:
“In view of recent unacceptable incidents in both your work performance and attitude generally, and subsequent to discussions with the section leader Accounts Payable, Mr Mark Taylor, the Department now considers it necessary to issue the following directions:-
.You are to attend work within core time, ie between 9.30 am and 3.30 pm, with the obvious exception of a break for meals.
. Time spent seeking medical advice should be undertaken outside of office hours, unless absolutely necessary, and when adequate advice of your intended absence has been given to your supervisor,
. With the exception of a meal break, you are not to absent yourself from the 8th floor of the head office building during the course of the working day, without having gained prior approval to do so.
. Absences availed of by you, which are of one day’s duration, for either illness or for recreation purposes, are to be recorded as 7 hours not 6 hours.
. Organising your social and private business, should not be undertaken during working time, ie lengthy and excessive personal phone calls, and reading and photocopying of items not related to your duties.
These instructions represent lawful directions by the employer to maintain those hours stipulated, and to perform duties assigned to you with the utmost care and diligence. Failure to comply with these directions will constitute a breach of discipline, in terms of the Public Sector Management Act, 1988, and may result in disciplinary action being taken against you.”
W.J.RYDER
CHIEF ACCOUNTANT.”
22 On the 24 April 1991 while driving home from work the applicant was involved in a car accident, which resulted in him being away from work for the next five months. He returned to work again on 10 September 1991 on reduced duties of 4 hours per day. The applicant approached Ms Lyn Baker, the Divisional Manager for Corporate Services, on 13 September 1991, on the basis that the Department had been deficient in providing a rehabilitation service to him, as a injured worker. Ms Baker referred the following matters off for report:
· the background to Mr Pelechowski’s injury;
· the Department’s efforts towards Mr Pelechowski’s rehabilitation;
· Mr Pelechowski’s reaction to rehabilitation;
· Details of Mr Pelechowski’s sick leave without pay;
· A written report as to his work performance; and
· An outline of the current duties to which Mr Pelechowski has been assigned.
23 Mr Kirby, the Senior Clerk Accounts Payable, replied to the question as to the applicant’s work performance on 19 September 1991 in the following terms:
“…The two officers responsible for Mr Pelechowski’s immediate supervision advise me that they are not happy with his performance to date.
He has a low output (ie in the 4 hours he was on duty on 16/9/91) he only processed 30 vouchers. This is considered very low. Another officer who is also doing duties associated with the Mail Clerks Position processed 224 vouchers in the same period.
This comparison may not be fair though as this officer has been doing the job for 20 days compared to Mr Pelechowski’s 5 days.
Statistics are being maintained on Mr Pelechowski’s output and I feel that if we review them in approximately one month it would give a fairer comparison of his output.
Mr Pelechowski has been observed by the officers responsible for his supervision doing what appears to be work associated with the processing of forms etc. which relates to his injury.
On Wednesday the 11/9/91 he spent the four hours he was at work doing this type of activity. On Thursday the 12/9/91 he spent at least 2 hours doing the same thing.
When I questioned him regarding his activities he advised me that he had to see various officers in the Department regarding his problem and to complete related paperwork.
His immediate supervisor advised me that he spent at least an hour on Friday 13/9/91 engaged in the same activity. In his previous position in progress Payments Mr Pelechowski had spent excessive time on Worker’s Compensation matters.
Since Mr Pelechowski’s return to duty there have been numerous occasions where an officer answers Mr Pelechowski’s current or previous telephone. The caller does not respond and hangs up. When Mr Pelechowski sees this he then makes a personal telephone call. On the afternoon of Friday 13/9/91 this had occurred 10 times whereby Mr Pelechowski’s telephone of his previous position rang and whenever someone answered it the caller hang up.
There have general threats made to various staff within and outside the Accounts Payable section. This has become common knowledge among all the staff and has had an adverse effect on the section, creating moral problems. These threats, generally of court action, resulted after an officer would tell Mr Pelechowski what he had to do or was not allowed to do.
Mr Pelechowski’s current duties and duties relating to his previous position, conform to medical certificate directions ie for Mr Pelechowski not to lift loads weighing more than 5 kgs., not to repeatedly bend, to walk around periodically, and currently, not to work for more than 4 hours per day.
On 16/9/91 Mr Pelechowski approached me and advised me that he was not happy doing the Mail Clerk job. He advised that he felt that the job would aggravate his injury. He reminded me that the department and any supervisor who directed him to do duties which aggravated his injury would be liable for damages in a court of law.
R. KIRBY
Senior Clerk Accounts Payable.
24 On 26 September 1991, Mr Kirby reported he and two other supervisors (K. Crowe and R. Issakhany) were again threatened. He concludes his report with the following statement:
“We believe that the Department has an obligation to us to ensure that if we are doing our duties we are not subject to this type of mental harassment by Mr Pelechowski.”
25 On 27 September 1991, the applicant was given directions by Mr Kirby not to leave his section. The report is as follows:
“On 27/9/91 Mr Karl Pelechowski was absent from the section between 8.15am and 9.05am.
As a result of your enquiry, advice was sought from his direct supervisor as to his whereabouts. Ms Crowe, his direct supervisor, was aware of his absence but permission for any absence had not been sought or given. You said that in view of your concerns regarding his low output and his repeated absences without permission that you would speak to him.
Upon his return and in my presence you discussed this matter with him. Mr Pelechowski said that he had gone to consult Mr Royce Cummings regarding his case. (Mr Cummings being a member of the Department OH &S Committee). When pressed on the length of his absence he said that Mr Cummings was not there so he waited, and that he was obtaining a computer listing of phone numbers.
In regard to his claim of obtaining a computer listing of telephone numbers, it should be noted that he was absent from the section yesterday (26/9/91) for ½ hour and he gave this same reason for his absence.
In my presence you instructed Mr Pelechowski that:
a) he was not to absent himself from the section without advice to his direct supervisor, and
b) that he was not entitled to consult unofficial representatives concerning his injury during work hours, and
c) that you were happy for him to seek necessary advice from official department sources during work time.
Mr Pelechowski did not agree with your instructions and expressed that he is entitled to consult anyone, anytime because he is a injured worker. You advised him that this was not the case. Mr Pelechowski tried to argue his case however you interceded and instructed him that under the Public Sector Management Act that he must comply with the lawful orders of his supervisors but he may complain later in writing after having complied with such orders. You then concluded the discussion.”
26 A report of Mr M. Taylor, the Section Leader, dated 30 September 1991, shows he counselled the applicant with regard to the threats made against his three supervisors. Mr Taylor further reported that when he put the allegations to the applicant he replied:
“Sue them – what for, on what grounds, you people are trying to gang upon me.”
When asked if he denied the allegations Mr Taylor reported that the applicant made no denial but asked for the reports and began to talk about the rights of an injured worker. Mr Taylor further reported that this was now not a supervisory matter but a disciplinary matter. He concluded his report with the following comment:
“In my mind Mr Pelechowski has assaulted and caused undue concern to three diligent supervisors who were operating under instruction. I find it most unacceptable for him to threaten them and upset them emotionally. I had considered it fair minded to give Mr Pelechowski an opportunity to deny the allegations. In view of his failure to make any denial or apology and in accepting the written reports annexed I am unsure what further action might be taken.
It is therefore recommended that this matter be referred to the Personnel Manager for consideration.”
27 A report of Mr Gerry Ambroisine, an occupational health and safety officer, records he was approached by the applicant on 4 November 1991 to discuss his personal situation. At this meeting, Mr Ambroisine reported that the applicant, for no apparent reason, became aggressive and said he would be suing the Department of Housing as well as a number of the Department’s employee’s, including him. Mr Ambroisine was soon to discover that this was no an idle threat as the applicant subsequently issued an apprehended violence order against him as a result of the meeting. This complaint was however taken out ten days after the alleged incident and was later dismissed and costs awarded against the applicant. Although the applicant had not informed any other person in the department he had issued such a complaint in the Local Court, he nevertheless requested the department to pay the costs Order awarded against him. When asked in cross-examination why he asked the department to pay his costs Order, the applicant replied, “because it was an unfair decision”.
28 On 11 November 1991, the Chief Accountant, Mr Ryder issued the applicant with an official warning letter. He officially warned the applicant that disciplinary action may result from this date if he:
“a) Threaten to sue any officer or officers whilst they are performing their supervisory duties in respect of yourself, and/or
b) Fail to comply with the Department’s “Code of Conduct” which was issued to you and all other officers. A further copy of the “Code of Conduct” is attached.”
29 Mr Ryder, after considering the applicants work output and a noted improvement in this area indicates that there have been repeated infringements in:
“1) repeated use of the telephone for private purposes. Although this has been the subject of written and verbal instructions to you, you are not attempting to comply.
2) Absences from your place of work without permission to undertake either personal work or duties not required in your position. This matter has been brought to your attention on many occasions and has also been the subject of written reports.
3) Repeated use of the photocopier for private purposes and the excessive number of each item copied.
4) Constantly seeking to re-discuss matters already agreed upon.
5) Checking other section’s pigeon holes and reading the contents of letters/reports which of course may be confidential
This is far from a comprehensive list. However you are hereby directed to cease and desist from these. You are therefore directed to comply with the Code of Conduct which requires you to give the whole of your time and attention to your work
Take note that this is an official warning and disciplinary action may result without further notice should you fail to comply with all directions contained in this minute. You are required to sign the original below acknowledging receipt of a copy. You may respond in writing should you so desire or may seek clarification from your Section Leader.
W.J.RYDER
CHIEF ACCOUNTANT.”
30 On the same day (11 November 1991) Mr Taylor, Section Leader Accounts Payable, reports that the applicant, after receiving copies of reports concerning him which were to be placed on his file, was observed to be continually on the telephone. He asked for leave at 1.45 pm and went home. Mr Taylor reports that the applicant rang him at around 3.55 pm, complaining that the reports were full of exaggerations and alleging that Mr Taylor was trying to drive him out. The next day, 12 November 1991 at 9.45 am, the applicant telephoned his supervisor, Ms Crowe advising, her that he would not be coming in. Her note of this conversation mentions that the applicant had enquired if his neighbour rang and that he had informed her of this. Later that day, Ms Crowe reported a conversation that she had with a Mr John Silverton, who had telephoned her earlier in the day to advise the applicant would not be coming in. She reported that the call was distressing and annoying. A report of the Chief Accountant Mr Ryder, on 13 November 1991 states that he also was contacted by Mr Silverton. His report is as follows:
“ I received a call from a John Silverton who wished to complain that Mark Taylor had been rude when he (Silverton) had requested Colleen Peters extension.
I recalled Silverton’s nam from a recent report of a phone call whereby Silverton had called in sick on behalf of Karl Pelechowski.
I asked why he wanted Colleen’s number and was informed that Colleen was a friend of his. I later verified with Colleen that this was not rue.
“Mr Silverton then:
- accused me of being rude,
- stated that ICAC was compiling a secret report on the Department because we covered up previously,
- threatened to report me to ICAC and the Premier, who was his friend,
- stated that he was taping the call.
I stated that I did not believe he was Colleen’s friend but perhaps he had another friend in the Department.
Mr Silverton became somewhat frantic at this suggestion and I told him I was going to hang up, which I did.
Later that day I asked Karl if he knew a John Silverton. He refused to answer without representation to which I agreed. Later Karl came back without representation. He said he was waiting for a return call from the PSA, wanted my questions in writing in advance and wanted the meeting to be held under oath with transcripts taken.
I refused and told Karl to go away as the discussion was finished.”
31 During and after this period there were a number of anonymous calls concerning the department’s treatment of the applicant and of a threatening nature. Throughout the hearing of this matter the applicant denied any knowledge of the people making these calls. He described the fact that the calls had been made at all as rubbish.
32 Another report by Mr Kirby dated 14 November 1991 is set out below:
“On 14.11.91, Mr Pelechowski came into the office at 9.30 am. He immediately commenced doing private work. During the course of the morning I had to approach Mr Pelechowski on two occasions and request that he commence work. He advised me that he had commenced.
He also advised he was still highly distressed about the contents of the reports he received on 11.11.91 and that he had to contact the Union about them and to ring various other people.
I advised him that this was private business and that he was here to do work. He ignored this direction.
Because of Mr Pelechowski’s refusal to collect the morning mail which arrived at 10.30 am it was necessary to arrange for other officers to do Mr Pelechowski’s duties.
Between 9.30 am and approximately 11.30 am, Mr Pelechowski left the floor without permission on a number of occasions to make lengthy private telephone calls.
At approximately 11.30 am, Mr Pelechowski left the floor again without permission and did not return until 2.30 pm.
On his time sheet he claimed that he had I hour 20 minutes for lunch, therefore he was absent approximately 1 hour 40 minutes in the Department’s time without permission.
I approached Mr Pelechowski and asked him where he had been. He said that he was on the ground floor making phone calls for which he paid 30 cents a call.
He then asked me how I could have written the two reports on him. I advised him that if he was referring to the reports I signed with Mrs Issakhany and Miss Crowe, I believed those reports to be honest and factual.
He said it was alright to make the statements on the eighth floor but “will you be prepared to make it in a court of law under oath and under cross-examination.” I advised him that I would. Hen said “We’ll see.” The conversation ended.
I consider that Mr Pelechowski has threatened to involve me in some form of legal proceeding.
I am Mr Pelechowski’s immediate supervisor therefore I am aware of the contents of the letter of warning which was given to Mr Pelechowski on 11.11.91.
In point A of this letter, Mr Pelechowski was warned that he may face disciplinary action if he threatens legal action against any officer of the Department who is performing his duties. It would be appreciated if the Department would advise me what action it proposes to take regarding Mr Pelechowski’s threat to involve me in legal proceedings.”
33 On 15 November 1991, Mr Kirby reported the applicant approached him and said he was in the process of commencing legal action against him for defamation. In cross- examination the applicant agreed he told Mr Kirby this but had not filed the statement of claim. He added it was still open for him to do so.
34 At 9.30 am on 18 November 1991, Mr Ryder, the Chief Accountant reports that the applicant telephoned him and said:
· “he would be off half day and he wanted special leave as it was the Departments’ fault he was off,
· he had to see Liverpool Police due to my lodging a complaint,
· Premiers department wanted copies of all reports,
· He would break me.”
35 Ms Lyn Baker, the Divisional Manager of Corporate Services, reported that at 10.00 am on 18 November she received a phone call from the applicant. She states he initially told her he had been forced to take the morning off to attend the Liverpool police station, over his alleged harassment by the department. Ms Baker said she was aware of a situation concerning suspicious and abusive phone calls to departmental staff that related to the applicant and informed him his performance and behaviour were being monitored. She then reports that the applicant:
“..then became quite abusive claiming victimisation at the hands of various staff of the Department, and me in particular. It was difficult to maintain a sensible conversation with Mr Pelechowski so I asked him specifically what he wanted, saying that if he wished me to inform his supervisor of his absence I would do so but that there seemed no benefit in prolonging the telephone call. He responded that he had already informed his supervisor, Mark Taylor, that he would be on special leave for the day. I informed Mr Pelechowski that Special Leave was not an option…
He responded that, “you can’t keep on covering up, Ms Baker”. He said he’d been on to the Premier’s Department and ICAC who were “very interested” in the way the Department was treating him. When I said that our current investigations were quite normal and necessary he said (under his breath as though not speaking to me) “another denial”.
36 On 19 November 1991, the applicant was charged by the Director of Housing for breaches of discipline within subs 66(b) and subs (d), of the Public Sector Management Act 1988, namely misconduct and intentionally disobeying, or intentionally disregarding, a lawful order made or given by a person having authority to make or give the order. He was suspended from duty, pending a preliminary enquiry under the Regulations.
37 At this time the department referred their concerns to Healthquest and the applicant was sent for psychiatric examination. Dr Gapper in her letter of referral to Professor Kiloh sets out the reasons for the Department’s examination:
“ The specific concerns which prompted referral here form him employer were of paranoid behaviour (Mr Pelechowski can show you copies of relevant workplace reports released to him) which manifested in threats requiring professional counselling for the workplace colleagues, constant obsession with his (accepted) work-related back injury to the point that he is unproductive and disruptive to others, and possible analgesic abuse (nembudeine, codral forte etc) raised by an assessing doctor elsewhere.
Regarding his examination here, he demonstrated similar suspicious and manipulative behaviour with administrative staff, veiled threats etc despite apparently being told what he supposedly wanted to hear ie that there did not appear to be a significant mental health problem and also thay he could have a copy of all his notes on file under the Freedom of information Act. The latter were released promptly on 10 December 1991 in response to his request on 6 December 1991 despite the beaucratic processes by the Act.
His employer is proceeding with apparent good grounds towards dismissal. They are concerned that he does in fact have a significant mental health problem which would be grounds for medical retirement. We are endeavouring to advise the employer which course of action is appropriate to his circumstances as the current workplace situation is untenable…”
38 Dr Gapper reported to the Department of Housing on 31 January 1992 that medical retirement cannot be supported on the basis of the available evidence. Further, that issues raised appeared to be administrative rather than of a medical nature.
39 Ms Kerry McKenzie, the officer appointed to conduct a preliminary enquiry after the applicant’s suspension, reported on 12 February 1992. She found that four of the five charges brought had been substantiated. On 26 June 1992, Ms Helen Colbey, the General Manager, Financial & Management Services, prepared a recommendation for the Director of Housing. It was her view that, taking into account the applicant’s employment history and that three of the charges found against the applicant warranted dismissal, he should be dismissed.
40 During this period Mr Flint, the Director of Housing was replaced by Ms G Kibble. Ms Kibble, in taking over the applicant’s matter, decided to reprimand the applicant instead of proceeding to dismissal. She concluded her reprimand with the following:
“On this occasion you are hereby reprimanded. However any repetition of the behaviour which after due enquiry is found to cause offence to your co-workers and interferes with the efficient operation of the Department will be taken very seriously by me and on that occasion could lead to the imposition of a much harsher punishment.
Your suspension on full pay is forthwith terminated and you are required to report to the Department’s Personnel Officer to resume duties without delay…”
41 The department experienced some difficulty in contacting the applicant and advised him that if he did not communicate with them he would be abandoning his employment. On advice from his solicitor, the applicant advised the department that he was unfit to return to work, as he was,
“..on sick leave due to my prolapsed disc and stress and trauma which have been caused by the cruel nine months suspension.”
42 The applicant wrote to the Director of Housing on 10 August 1992. In his letter he complained he was not given the opportunity to defend himself against the charges and that he had been unjustly wronged by Ms McKenzie’s preliminary report. He explained that he was unable to return to work due to his health problems associated with his prolapsed disc and the stress, anxiety and trauma caused by his unfair suspension. He admitted in cross-examination that the medical certificates from Professor Steinbeck attributed the stress and anxiety problems to his back and the need to undergo surgery, rather than other sources. In his letter, he also sought an interview in order to put his side of the story.
43 Ms Kibble, in reply to the applicant, confirms that she is satisfied the procedures have already been complied with under the Act and that the applicant has had sufficient opportunities to put his case. She notes the applicant’s medical certificate from Professor Steinbeck that he will be unfit for two and a half months and wishes him well on the surgery to his back. She further states that on his return to work he will be placed on a rehabilitation plan to fully meet his medical needs.
44 On 29 September 1992, the applicant supplied a further medical certificate extending his sick leave until 29 November 1992. On 26 October 1992, the applicant produced his forty one page report (marked as annexure K16 to his affidavit and document 135C in exhibit R1).
45 The applicant returned to work in the records section of the Administrative Services Branch on 15 December 1992, working 3 hours per day from 9.30am to 12.30 pm. Although Dr Gapper was of the opinion that the applicant was fit to resume his work without any rehabilitation plan, the department implemented a scheme on the basis that he had been away for such a long period of time.
46 On his second day back at work the applicant sent a letter, he entitled, “Report on Corruption” to the Commissioner of the Independent Commission against Corruption (document 156A, Exhibit R1.) In this letter he states he had previously reported incidents of corruption within the Department of Housing in 1990 and that ICAC decided not to pursue them. He makes no fresh allegations as such but makes general complaints that he was not listened to by his supervisors. He also suggests that he had to take an Apprehended Violence Order against one staff member, but unfortunately he fails to explain that the complaint was dismissed and that cost were ordered against him.
47 The ICAC replied to the applicant’s letter on 21 May 1993, informing him that an assessment of his complaint had been carried out and that it would not be the subject of further investigation.
48 Mr D. Alanis, the Acting Personnel Manager, reported on 22 September 1993 that the applicant approached him to discuss a telephone call his partner had received at his residence a half hour earlier. He says that the applicant requested that the department “cease and desist” with its harassment. Mr Alanis invited the applicant into his office to discuss the matter. His report is as follows:
“Mr Pelechowski made two points. Firstly, he alleges that the department is behind a number of harassing telephone calls he had received at home over a number of months. He then accused the department of orchestrating this latest call. He claimed it is motivated by a legal matter he is currently involved in which is soon to go before the court.
Secondly, he asked where Ms Sharon Speller obtained his silent telephone number in May 1992, when she contacted him to organise an interview with Helen Colbey. Mr Pelechowski claims never to have provided the department with the number.
In respect to the second point I advised Mr Pelechowski that I had no knowledge of how his number was obtained but that I would ask Ms Speller. I informed him that it had been 16 months since the call was made and it was unlikely that I could be of much assistance. Ms Speller is unable to recall how the number was obtained.
With respect to the first more serious allegation, I asked Mr Pelechowski was the caller male or female and what did he/she say. Me Pelechowski replied that it was a “rough female” voice which had said it had dialled the wrong number.
Despite my argument that wrong numbers were not unusual, Mr Pelechowski was adamant that the department was behind it and again requested that it “cease and desist” otherwise he would contact the police and his own legal representatives.
I told Mr Pelechowski that I did not know of any campaign by the department to harass him, and I found the idea preposterous. I advised him that he was making some very big assumptions based on very little. In fact Mr Pelechowski had admitted during the conversation that there had been a lull in the number of phone calls and this most recent “wrong number” was the first in quite a while…”
49 The applicant was interviewed by Mr Dries, the Manager of Administrative Services, and Mr Anton, the Administrative Officer, Records & Printing, on 10 June 1994 concerning his leave record history since March 1993. Mr Dries stated that the meeting was not for disciplinary purposes, but to ascertain the reasons for the regularity of absences from work. He reports that the applicant advised:
“Some of the time off was sick leave taken for his back problems over which he is still seeking a workers compensation settlement. He was advised this was accepted, however, of 45 occurrences of leave 30 were for other reasons.
He has personal problems which have required him to take leave on a regular basis. When asked if he wished to discuss these problems he said he would prefer not to, although he did indicate on two occasions problems he was having were exacerbated by what the department had done to him in the past – he was referring to (a) his back injury and (b) his term of suspension.”
50 Mr Dries then discusses the effect the applicant’s continued absences were having on his work and the work of others and his concern that most of his leave was now without pay and the adverse consequences that this may have on him in the future. He said the applicant stated that he had dealt with his personal problems and that these should be settled by August this year (1994). The interview was concluded and Mr Dries reports:
“As the workload created by Mr Pelechowski’s absences is being handled by others without complaint, and as Mr Pelechowski seems to have genuine personal, as well as the accepted medical problems, I do not intend to pursue the matter further as at this time. To be reviewed at the end of August 1994. Mr Pelechowski was advised of this.”
51 Mrs Welsh, the applicant’s supervisor made a report on the applicant on 7 September 1994. She complained that he had been making excessive personal telephone calls, despite her direction not to do so. She says she became exasperated and started taking notes of his call (a summary of these is attached to her report). The applicant, she reported, spent a great deal of time doing personal work, including photocopying and made mistakes in his work. She says the applicant has no respect for her and never lets her know when he leaves the section or is going to lunch, coming and going as he pleases. He usually submits leave applications on the day or the day prior to his leave which makes it difficult to properly organise the running of the office and has an excessive amount of leave which results in others having to share his workload. She concludes this report by expressing that:
“As a result of Mr Pelechowski’s lack of co–operation with the matters brought to you attention I feel a great amount of stress especially on the days he is present as is the feeling with other staff in the Records Management Unit.
In writing this report it is difficult to express the tense atmosphere that is generated in the workplace when Mr Pelechowski is on duty.
If Mr. Pelechowski is to remain under my supervision I would request a transfer to another Branch or Region as I cannot cope with this situation as it is now. This only affects my ability to carry out my work efficiently but is affecting my personal life as well.”
52 The applicant claims the report is the basis of the subsequent disciplinary process and his final termination of employment.
53 Mr Anton the Records Management Co–ordinator made a notation at the foot of Ms Welsh’s report . His note says,
“In support of the above report I concur with Mrs Welsh’s comments. I have observed Mr Pelechowski using the phone and the photocopier for considerable amounts of time for personal use. I had to resort to removing the typewriter from the RMU because of the time Mr Pelechowski spent typing personal material. As you are aware you and I interviewed him regarding his excessive amount of leave, which is due to be reviewed. Mr Pelechowski does not seem to have any rapport with any other staff member in the RMU. Mrs Welsh does a very good job supervising the Records Services Section and has no problem with any other staff members. I feel if she was to transfer elsewhere it would be a great loss to the RMU.”
54 Mr Dries followed up this interview on 8 September 1994, discussing a range of matters concerning the applicant’s performance, attitude and attendance record. Attached to this report was the report of the meeting of 10 June 1994, a summary of the applicant’s leave record from March 1993 to 8 September 1994, and a report submitted by his immediate supervisor Ms Welsh, concerning personal work and telephone calls. Mr Dries informed the applicant that the following matters were to be discussed:
1. “excessive amount of leave
2. excessive time spent on telephones
3. personal work carried out in department time
4. lack of prior notice in submitting request for leave
5. lack of co-operation with supervisors
6. others having to do his work
7. relationship with other staff”
55 Mr Dries reports that, although the applicant wanted the interview to be sound recorded and a witness to be in attendance, the applicant commenced discussing the issues without arranging them. At this meeting the applicant made allegations about his supervisor, Mrs Welsh. He alleged that she also carried out personal work during office time and that he had kept records regarding these dealings. When asked to produce it he said it would be produced at the appropriate time. Mr Dries said he then told the applicant that Mrs Welsh had admitted that she had spent time on her husbands business, but no where to the extent of the applicant.
56 It was at this interview that the applicant claims it was admitted by the department that he was a “Whistle Blower”. He claims this is concrete proof that the department was aware that he had made allegations to ICAC and that they had been out to get him. The context of this so-called accusation in Mr Dries report is as follows,
“Mr Pelechowski raised a range of matters during the interview including:-
Helen Colby, Dick Flint and Lyn Baker and their role in discriminating against him – his suspension and according to him the total lack of justice he has received. Initially the impression was gained that he was claiming some responsibility for what had happened to the Department, the changes and the departure of Officers such as Helen Coleby and Dick Flint. When pressed about this – I asked if he was a “Whistle Blower”, the meaning of which I had to explain – he changed direction and spoke of the past and future. This was somewhat confusing and was not pursued.” .
Mr Anton, reported on the applicants poor performance and disrespect for supervisors again on 4 October 1994.
57 By the 11 October 1994, Ms McSorley, Human Resources Manager of the Department of Housing, had communicated with Mr Bob Hull, an Industrial Consultant with the NSW Department of Industrial Relations. They discussed the appropriate action to establish the relevant facts concerning the applicant and options available to the Department. Ms Lyn Baker, the Director of Management Services, appointed Mr Hull to carry out this process on 25 October 1994.
58 On 18 November 1994, there was a discussion between the applicant and Mr Anton. The applicant alleges he was so threatened by Mr Anton that he was required, once again, to seek the protection of an Apprehended Violence Order from the Local Court. This complaint was also dismissed and the applicant was required to pay costs. Mr Hull also investigated this allegation by the applicant as part of his fact-finding investigation. His conclusion as to the incident, after interviewing all the parties present is at page 20 of his report at paragraph 9,
“There is no basis to the allegation that Mr Anton made a threat of violence towards Mr Pelechowski during their discussion on 18 November 1994 either verbally or by body language although Mr Anton did raise his voice to Mr Pelechowski.”
59 Mr Anton reported on 10 January 1995 that the applicant refused to carry out his directions to flatten several small cardboard cartons, place them on a trolley and take them to the basement. He reported that the applicant said this was not in his statement of duties and it would aggravate his back injury. A further report of Mr Dries on 16 January 1995 to the Human Resources Manager attaches Mr Anton’s report and sets out problems he has recently experienced with the applicant himself. On 10 February 1995, Mr Dries reports that he once again was required to speak with the applicant after complaints from Linda Trovato and Ms Welsh, regarding the applicants behaviour.
60 On 25 January 1995, Mr Hull handed down his fact-finding report. This document is certainly a well prepared and comprehensive concerning the issues raised by the reports submitted by Mr Dries, Mr Anton and Mrs Welsh. The investigation was centred around the issues that were common to all the reporting officers, namely,
1. Excessive amount of leave
2. Excessive time spent on telephones
3. Personal work carried out in department time
4. Lack of prior notice in submitting requests for leave
5. Lack of co-operation with supervisors
6. Others having to do his work
7. Relationship with other staff
61 Mr Hull interviewed the officers concerned, tape recording and transcribing each interview and providing each of the parties with a copy for verification. He also held discussions with various other staff members of the department in relation to the specific matters raised. Mr Pelechowski in his evidence stated that he did not sign and return his copy of the transcript because “he was incoherent and messed up, and he did not trust Mr Hull.”
62 It is clear from Mr Hull’s report as well as his evidence in this Court that the applicant was given more that a fair chance to prepare and submit material to Mr Hull in defence to the allegations. Mr Hull deferred the original interview for fourteen days to allow the applicant further time to prepare. After the interview on 29 November 1994, Mr Hull extended time for the applicant to produce further information on three separate occasions over a period of six weeks but received no further information to that received on 16 December 1994. Mr Hull states in the forward to his report,
“These extensions of time have significantly delayed the completion of this investigation and given Mr Pelechowski ample opportunity to prepare any response to the allegations.
Mr Pelechowski was also provided with access to all information available through the Records Management system and was granted 1 hour from his normal duties on each working day to review those records and extract any information he considered relevant.
Mr Pelechowski was less than co-operative during the investigation as he continually referred to “evidence” he had to support his responses to the allegations but would not provide me with that evidence as he wanted it keep for “future disciplinary hearings”.
During a phone conversation Mr Pelechowski also suggested that he would not supply all the evidence that he had and accused me of “bias” and suggested that the evidence he supplied would “probably end up in the rubbish bin anyway” Mr Pelechowski did not elaborate as to why he formed those opinions and I am not aware of any comments or actions on my part that would lead him to that conclusion.”
63 Mr Hull’s recommendations at the conclusion of his report are as follows,
“I am of the opinion that the working relationship between Mr Pelechowski and a number of officers within the RMU, particularly his supervisors, has broken down and is unlikely to be restored and these recommendations are made with that opinion in mind.
Counselling of Mr Pelechowski appears to have been conducted by supervisory officers in the past on specific issues with little success and therefore this opinion, whilst considered to be essentially in this matter and in all similar situations, may not result in a satisfactory solution to the problem.
Transferring Mr Pelechowski does not appear to be a solution to the problem particularly if there is a possibility that his attitude to his work and colleagues is the crux of the matter in the present working location and there is a possibility that this attitude will be translated to any alternate location.
A medical assessment would appear necessary in any circumstances based on Mr Pelechowski’s recent notification to the department that his back complaint is preventing him from completing the full range of his duties.
It is therefore recommended that the Department:
(i) have Mr Pelechowski undergo full medical assessment to determine his ability to carry out the full range of duties associated with his employment;
(ii) counsel Mr Pelechowski on the performance of his duties and the use of departmental resources for private purposes; and/or;
(iii) instigate disciplinary proceedings in accordance with Part5 of the Public Sector Management Act 1988 and General Regulations.
These recommendations are a guide only and the Department Head should determine the most appropriate course of action based on the facts that have been determined by this investigation.”
64 The applicant replied to Mr Hull’s report by sending a letter to the Director of Housing and to the Manager of the Human Resources Branch, Ms Helen McSorley, on 16 February 1995. He headed this document, “Trumped up Disciplinary Charges,” which is set out below:
I refer you to the above false upcoming proceedings.
Once again I am being framed by certain officers within the Department of Housing who are behaving corruptly and maliciously. In particular I refer to the plot by Lyn Baker to have me removed from the Department.
A copy of this short report will be forwarded to the Anti-Discrimination Board and to Workcover which regulates the Occupational Health & Safety Act. Many breaches have occurred and as it is my life and my Public Service career I wish to take serious action against the above mentioned persons and the hired gun (Bob Hull) which she recruited for the purpose ruining my life.
It is my profound belief that Lynette Baker and Bob Hull colluded in a desperate bid to destroy me once and for all. I am not a man of unintelligence and cannot comprehend the length this woman will go to rid me of my job.
I feel that the reverse should be the order of the day and that Ms Baker should resign in absolute shame for the horrendous acts she has perpetrated upon me a worker injured in the line of duty.
Furthermore, her acts against the State Government should be investigated with a fine tooth comb.
I feel that I can no longer tolerate the corrupt behaviour exhibited by Ms Baker and her henchmen and am looking towards you, the Director of Housing to give this unconscionable matter the due consideration it warrants.
I believe the Staff Handbook clearly states that action should be taken and I find I cannot accept the blatant lies upon which this latest assault upon my career has been directed. The first disciplinary was a lie and ludicrous. This one that they are attempting to glue together is no less ridiculous particularly as I took Mrs Gabrielle Kibble’s directions in 1992 to the letter.
This cannot be swept under the rug as there are hundreds of qualified unemployed out there who would give their all for Ms Baker’s job.
I trust that action will be taken in this grave matter immediately.”
65 On 8 February 1995, the applicant served on Ms Helen McSorley two reports concerning Mrs Welsh conducting private business during working hours with the sanction of her supervisors. Although he offered no evidence with the allegations he concludes his report with the following recommendation:
Maree Welsh should be dismissed from the department of housing for her duplicitous and contemptible behaviour along with her previously named work associates who continue to underpin her business interests.
These employees have year after year been allowed to continue with their unethical and corrupt practices. The time is long overdue for these staff members to be investigated and held fully accountable for the following crimes against the Department of Housing:- dishonesty, rorting the Govt., encouraging an insidious buddy system, and deliberately lying, waste and mismanagement, fleet management abuse, breaching statutory obligations, misconduct unlawful actions, framing fellow employees, giving false testimonies abuse of public sector procedures, invasion of staff member’s privacy, denial of worker’s rights, harassment and victimisation and various and sundry other matters.”
66 Mrs McSorley referred these serious allegations to the Director of Housing, Mr Cappie-Wood, on 21 February 1995 with a covering report. In that report she suggested that after discussions with the legal department: a preliminary inquiry be instituted into breaches of discipline against the applicant; Mr Wood investigate complaints made by a Mr Jeremy Coe on the telephone; and that Mr Col Morgan, Business Manager of the North Western Business Team, be appointed to conduct an investigation into the allegations against Mrs Welsh by the applicant. Mr Cappie-Wood, on receipt of this letter, suggested that Mr Wayne Tosh, the Director of Audit, should undertake the investigation into the allegations against Mrs Welsh and Mr Morgan’s name was removed.
67 Mr Andrew Cappie-Wood, the Director of Housing, charged the applicant on 21 February 1995, with committing numerous breaches of discipline within the meaning of s 66(b), (d) and (f) of the Public Sector Management Act 1988. The applicant was suspended from duty on full pay pending the completion of a Preliminary Inquiry, under the regulations by Mr Russell.
68 Throughout this time various officers in the department of Housing received telephone calls in relation to the applicant complaining of the treatment of the applicant by the department. This person said his name was Jeremy Coe. An undated letter was sent to Mrs Kibble by Mr Coe (document 310 in exhibit R1).
Mr Russell, the officer appointed to conduct the Preliminary Inquiry contacted the applicant in March 1995 and the applicant requested and was given an extension of time to supply written submissions. In his letter of appreciation of the extension the applicant made the following comments:
“Please take note that I consider all charges amongst other aspects of my employment in the Records Section, most particularly in the last six months particularly the heavy workload a general aggravation to my failing health.
Unfortunately due to the unfairness to my injury and the convoluted Letter of Charge which I consider discriminatory, I have advised the Anti-discrimination Board of my grievance on two accounts:
i) disability discrimination
ii) race discrimination.
All these factors I hope will be taken into consideration in your preliminary inquiry.
In addition, I trust that a man of your integrity will be aware that the onus of proof lies with those who accuse in relation to any charges. Charges made without proof or veracity can only be considered an attempt to malign or get rid of an employee (ie discrimination)
Under Section 20 of the Protected Disclosures Act 1994 No. 92 and the Departmental Code of Conduct Section 7 where Subsection 4 states that “Victimisation of any person reporting corrupt conduct will not be tolerated and the perpetrators will be subjected to disciplinary action.”
69 Mr Russell wrote to the applicant on 20 March 1995 extending the time in which he needed to reply to 3 April 1995 and by, another letter dated 5 April 1995, he again extended to 11 April 1995.
70 The applicant, although making arrangements to interview the Director of Housing, Mr Cappie-Wood, repeatedly cancelled each meeting for various reasons. Mr Cappie-Wood’s file note of a telephone conversation with the applicant on 3 April 1995 reveals the following:
· “He states that he was still documenting details of allegations over the past six years specifying times, dates and places.
· He claims that the disciplinary action recently underway in a result of his claims about corruption in the organisation.
· He claims discrimination by the organisation in that it refused his requirements for working closer to home at St Clair and that under the Workers compensation Act he is entitled to this.
· He claims that the retention period of vouchers and invoices retained by the department had deliberately been shortened from six years to three years by Wayne Ryder in an attempt to civer past corruption.
· He claimed that the director will be sacked by the incoming Labor government and that the department of housing will get back to the way it was. He asserts that there was a group of 20 people in the department responsible for the corruption and said that most had either resigned, been sacked or retired and that as a result of the incoming Labor Government they would be re-employed.
· He stated that he is in fear of his life as a result of threats by various officers and that he has taken legal action restraining some of them. He claimed that Mr Ambrosine was seen assisting in Dianne Beamer’s electoral office during work hours.
· He claims that the industrial fact finding work undertaken by Bob Hull was a set up and that Bob Hull is a crook and a hired gun.
· He claimed protection under the Whistleblowers Act.
· He states that he has 26 separate allegations of corruption to be made to the organisation.
· He says he already has written to ICAC in 1990 and that he sent a 43 page report to ICAC in 1992 for which he is unwilling to divulge ICAC’s response”.
71 On 3 April 1995 the applicant also sent, by way of fax to Mr Russell his submissions, and repeating the same veiled threats in his previous letter. The applicant’s submission of just a few paragraphs simply refuted the charges. On 11 April 1995, the applicant was interviewed by Mr Russell, claiming at that meeting that the charges against him were fabricated by Ms Welsh. His proof of this was that he had automatic teller machine slips that proved that Ms Welsh was not in the office to record him doing personal work or using the telephone and that he had records from the computer that proves he was working at times Ms Welsh’s records show he was not. This matter will be dealt with later.
72 Mr Wayne Tosh, the Director of the Audit Branch reported on the 12 April 1995 as to allegations relating to Ms Welsh doing private business in departmental time, that had been referred to him by the Director of Housing. His conclusions were that he was satisfied that Ms Welsh had been using departmental equipment (photocopier, telephone etc) for private purposes, that she did absent herself from the office to undertake banking for her husband and was not prepared to admit the full extent of her misuse of departmental time and equipment. He further added the Ms Welsh had been formally reprimanded by Mr Dries concerning these matters already and that in his opinion no further action was required.
73 Mr Wayne Russell submitted his report of Preliminary Inquiry to the Director of Housing on 27 April 1995. Mr Russell’s findings in summary are set out hereunder,
a.) “the fact finding investigation and subsequent report by Mr Bob Hull was fair, rational and unbiased.
b.) Witnesses Mr Dries, Mr Anton and Mrs Welsh were considered reliable.
c.) For reasons previously provided, Mr Pelechowski’s evidence was considered unreliable.
d.) Excessive private use of the telephone and photocopier was undertaken by Mr Pelechowski despite having received lawful order to cease practice.
e.) Lawful directions of supervisors to provide adequate notice of leave were ignored on a number of occasions.
f.) Disharmony and disruption was caused by Mr Pelechowski in being argumentative and not accepting supervision.
g.) Deep antagonism towards the department of housing and selected staff, has created a climate and tension amongst his co-workers.
I therefore conclude that Mr Pelechowski has committed numerous breaches of discipline within the meaning of Section 66(b), (d) and (f) of the Public Sector Management Act, 1988”.
74 A letter of charge was sent to the applicant on 5 May 1995, setting out in full the particulars of each charge under subs 66 (b), (d) and (f). The applicant replied to the charges by way of letter dated 24 May 1995. He again denies all charges and again alleges the charges are false, an harassment and a campaign by his supervisors to rid him from the department. He further claims that the department was negligent in placing him in a position requiring physical effort. He also advises that he relies upon s 20 of the Protected Disclosures Act, “which states victimisation of any person reporting corrupt conduct will not be tolerated and the perpetrators will be subject to disciplinary action”. He then confirms the interview for the same day.
At the interview of 24 May 1995, between the applicant, the Director, Mr Cappie-Wood, and Ms P. Rutledge, the applicant handed to the Director the above letter. At the commencement of the interview the applicant states,
“…I would like to take the opportunity of, once again, denying on every charge that has been levelled against me.”
75 The applicant then proceeded to produce “evidence” of the Automatic Teller Machine slips that he says is proof that Mrs Welsh was carrying on private work during office hours. He then says he had a conversation with Mrs Welsh and said to her,
“No, I am just bringing to your attention that if you expect staff members to adhere to the rules as well --- and this set of a chain reaction where she said, well, she felt really threatened by this.
So, she connived a plan to have me framed, for what of a better term, having me framed in respect that which led to the disciplinary charges today.”
And further on in the transcript,
I allege that it is both not only herself but two other officers. In this case it is Ron Anton and Mr John Dries. Not only that, I have – I believe I can prove it here today that they have, all of these allegations..”
76 The applicant then rambles on in general for some time about his treatment by the Department, making allegations about Mr Dries and Mr Cappie-Wood. He then states,
“That is fine, You said you would be providing material evidence which we will add to that which we have already passed on to ICAC, and we will do our own internal Investigation at the same time that we receive those.”
The applicant then alleges Mr Wayne Russell cut short the procedure in his interview because he wanted to play golf and that the applicant therefore did not get a fair hearing. The applicant, however, concluded this interview on 11 April, where, at page 17 of the record of interview he states,
“No no no, what’s happening is not gonna rest, not till my matter has been examined and all the facts analysed and I won’t rest, I can’t rest its been a nightmare and I am holding certain departmental officers of the management circles responsible for this. Once again I refuse to answer any more questions.”
77 The applicant again rambles on in the interview about his victimisation and his career as a former real estate agent. He makes no mention of the fact that his licence was revoked by the Council of Auctioneers and Agents and that he is permanently disqualified from holding a licence. He claims protection under the Protected Disclosures Act. Ms Rutledge then asks the applicant if he has any specific evidence in relation to his allegations other than that he has in relation to Ms Welsh. The response is much of the same general rambling and accusations without a shred of proof offered. Later in the interview, the applicant makes further allegations of corruption, no doubt the same or similar to those he had proffered the ICAC in 1990. When pressed for names by Ms Rutledge the applicant replies that it is not worth it.
78 The applicant refuses to supply any further evidence and states on page 28 of the transcript of the interview,
“Actually if I may, I do not wish to provide it at the disciplinary hearing but provide it to the Court.”
The applicant although handing Mr Cappie-Wood the ATM receipts, took them back and never produced them until he brought charges against Mr Cappie-Wood and Ms Rutledge at the Protected Disclosures hearing before the Local Court, after his dismissal.
79 On 26 May 1995, the applicant wrote to Mr Cappie-Wood in the following terms,
“meeting held on the 24th May, 1995
between your good self, Pam Rutledge & I
With reference to the above.
I herewith confirm our meeting in the presence of Pam Rutledge and further confirm that all my written and oral disclosures are true and correct.
Your understanding and forebearance at the meeting was greatly appreciated.”
80 In a further letter addressed to the Department of Housing on 5 June 1995 the applicant states,
“I am happy with my interview with the Director and Pam Rutledge, Director of Management Services. I truly hope that we can arrive at a mutual and fair arrangement to my suspension as soon as possible.”
On the 5 June 1995, Ms Pam Rutledge forwarded for comment the transcript of interview held on 24 May 1995 between the applicant, herself and Mr Cappie-Wood, to both Mr Hull and Mr Russell. She asked them to review the transcript and provide any comments that they felt appropriate. Mr Russell was provided with a transcript of the Hull interview as the applicant had expressed some concern that he had not seen it. Both Mr Hull and Russell responded to this request and were satisfied that no significant matters arose. The existence of the ATM receipts which were alleged further evidence of Ms Welsh’s private activities during working hours had been raised with both Mr Hull and Russell, both of whom had requested the applicant to provide them although he had not done so.
81 On 14 June 1995, Mr Tosh received a letter from ICAC informing him that the material he had sent them in relation to the allegations made by the applicant had been carefully examined by the commission and that the matters raised where not ones that should be formally investigated.
82 An assessment by Mr Cappie-Wood prior to his official determination was as follows:
“On the available evidence before me I am satisfied that each of the charges against Mr Pelechowski have been sustained. I am satisfied that each of the offences when viewed individually, in the entirety of the circumstances, warrant dismissal but for charges 1(i) and 1(ii). In relation to each of these I am satisfied that an appropriate punishment is a fine assessed at $100.00.
Transfer of the officer is not considered appropriate in the circumstances of this case. In this regard, discussions have been held with various officers with whom he presently works and I am satisfied that Mr Pelechowski’s behaviour would be repeated in any other work place environment.
In arriving at this decision I have taken into regard mitigating factors such as the history of his employment with the department as a whole. The circumstances in recent times have made it untenable for the continuation of a relationship of employment between the department and Mr Pelechowski. Mr Pelechowski’s allegation of corruption have been broad, unfocused and with one exception, entirely unfounded.
I believe his allegations under the Protected Disclosures Act to be unfounded and on the whole no more than an excuse to avoid the consequences of the disciplinary action which commenced against him. I have taken into account that the disciplinary action which commenced against him preceded allegations of corruption.”
83 On 27 June 1995 Mr Cappie-Wood terminated the applicant’s employment. The terms of the particular breaches of the Public Sector Management Act are set out in his letter to the applicant as:
“1. In terms of Section 66(b)
(i) you utilised the Department’s resources, namely telephones, to an excessive degree for personal business; and
(ii) you utilised the Department’s resources, namely photocopiers, to an excessive degree for personal business.
2. In terms of section 66(d)
(i) you did on numerous occasions take leave or various sorts without having given to your supervisors adequate amount of notice, such action contrary to directions given to you by your supervisor on numerous occasions; and
(ii) you did on numerous occasions intentionally disobey lawful orders requiring you to cease using the department’s telephone and photocopiers for your personal business.
3. In terms of section 66(f)
(i) you have been unduly and unreasonably disruptive and argumentative and as a result you have caused disharmony with your co-workers.
(ii) You have failed on numerous occasions to act with courtesy and with concern for the general welfare of other staff members.
I have decided that you be fined an amount of $100.00 with respect to each of the substantiated charges 1 (i) and 1 (ii).
I have decided that you should be dismissed from the NSW Public Service with respect to each of the substantiated charges 2 (i), 2 (ii), 3 (i) and 3 (ii) as separate and independent grounds for dismissal.”
The applicant
84 Having observed the applicant throughout this hearing, I have no doubt that he is suffering from some form of psychological problem. Perhaps the best way to describe this problem is to note the opinion of Dr James Maguire, a Consultant Psychiatrist, who examined the applicant on 22 October 1992, a report the applicant relied upon and annexed to his affidavit (exhibit A1, K5). After considering the applicant’s allegations about corruption, and being set up etc. he made the following observations,
“Based on his clinical presentation during my two interviews with him and the manner in which he describes these events I believe Mr Pelechowski suffers from a Delusional (Paranoid) Disorder.
As a response to his fears associated with this disorder he does have some symptoms of anxiety and depression.
In diagnosing this disorder I am not claiming that there is no corruption in his department nor am I claiming that he has not been unfairly harassed.
However, with this disorder he could misinterpret what is acceptable and reasonable practices in the work place as corruption or persecution of him.
I was not convinced that he was a “normal’ person who was experiencing anxiety and depression as a result of the events he claims have been occurring. He impressed me very much as a “paranoid” person who was distressed as a result of their beliefs and fears.
I found it unconvincing that he would only give me instances of what could only be regarded as “minor” corruption since he claims to have presented the GIO with a forty page document listing his knowledge of corruption at higher levels.
I was also not convinced that he was aware of any knowledge that would justify having him bashed or killed. I was also not convinced that he has been receiving threatening telephone calls on two silent numbers.
From what he told me I believe this disorder has been present since the time he first started with the Public Service as he indicates that from the very beginning “I watched them and they watched me.”
I note that he joined the Public Service after the company he worked for with his brother-in-law went into liquidation and it is quite possible that the stress of that event and possibly the death of his father in March 1987 could have played some part in the evolution of this disorder which has its peak period of onset between the ages of forty and fifty-five.
85 One wonders what conclusions Dr Maguire would have made if he had been made aware of the real reason why the applicant left the real estate business (ie, having his licence revoked because of defalcation of his trust account).
86 The applicant, throughout this hearing, constantly made sweeping allegations that there was a conspiracy to get him or to have him set up with criminal charges and to have him sacked from his position in the Department of Housing. For some unknown reason he preferred to use the word collusion but occasionally would refer to a conspiracy. There is a trail of people that once supported the applicant but were soon discarded when they were found to be part of this so called conspiracy. He trusted people until they either did not agree with him or were critical of his behaviour, then they become part of the plan to get him. The applicant has sacked various solicitors, the Public Service Association refused to represent him, the Local Court dismissed his vexatious complaints for Apprehended Violence Orders and his fellow employee’s that he regarded initially as trusted people became treacherous pawns.
87 The applicant’s claims of conspiracy became so ridiculous that he simply cannot be taken seriously with any claim that he makes. Examples of these sometimes serious charges of conspiracy are numerous. The first deals with his application to GREAT for an appeal regarding his application for a higher position. He alleges that there has been collusion between the Tribunal members which prevented him winning the appeal. When asked if he has evidence of this his reply was,
“It’s personal observation, intuitive feelings...”
88 When asked why he had not revealed in his forty one page report that the AVO he had taken out against his supervisor, Mr Ambrosine, had been dismissed with costs awarded against him, he replied,
“I refrain from making that answer because of -- there’s been favours for favours involved in this matter”
When later questioned about contempt proceedings brought against the applicant by the Supreme Court of Appeal, the applicant replied,
“…because of interference of the Department of Hiusing to have me criminalised which was overturned by the High Court.
Q. the department had nothing to do with this. This was the Attorney General taking…….
A. the Public Service Mr Goot.
Q. it was the NSW Court of appeal
J.REGISTRAR. you are saying that they have some connection here?
I’ve got proof on the bill of costs.
Q. we are talking about the Supreme Court here. Are you saying the Supreme Court in the decision that the Supreme Court made in relation to the District Court case has a connection with the Department of Housing and is part of the conspiracy against you, is that what you are saying?
A. not conspiracy but there were favours for favours.
Q. you are saying that the Supreme Court was influenced, are you saying that?
A. to criminalise me, yes. Its on record….
Q. you are saying that there was a connection between the Supreme Court and the Court of Appeal and your termination. You are making connections?
A. yes definitely, yes.”
The applicant also referred to the various Local Court hearings that he had as being “set-up”. He claims that all the reports relating to him were shams and simply part of the conspiracy to get rid of him.
89 The applicants evidence both oral and documented was emotive and exaggerated. At times he simply tells lies while at other times he prevaricates or attempts to avoid the question altogether. He continually rambled, constantly attempting to make allegations and bring the subject back to what he wanted to talk about. At other times he would ignore questions preferring to read other documents that were not the subject of questioning. He constantly would think aloud, attempting to confuse or prevent giving an answer. At times he would just simply refuse to answer a question, especially if he thought it may have any bearing on his personal life. He fervently refused to admit that he knew or was aware of the many telephone calls that had been made to the department either on his behalf or by himself, using a disguised voice. The evidence of this, simply being too overwhelming to disregard. Despite the evidence given by several of the respondent’s witnesses as to the telephone calls, the applicant did not bother to cross-examine them.
90 The applicant frequently turned up late to Court and on 8 July was 50 minutes late. After I adjourned my Associate was informed that the applicant was at the General Counter filing documents. When I questioned him as to why he was late, he lied that he had been held up by the public transport system.
91 When asked in his evidence, if he had ever been told by Ms Welsh, Mr Dries and Mr Anton not to use the phone he said he had never been told. Later in cross-examination it was put to him by counsel that he had lied, he replied, “no, it definitely was not”. Counsel then reminded him that he had told Mr Hull in his interview that he, in fact, was told not to use the phone. The applicant replied again, “no”, subsequently admitting it appears that he did. Again when he was questioned about refusing an order by Mr Anton to carry out certain work the applicant answered that he did not refuse to do it, then later on he said, “yes, okay I refused.” The same situation arose concerning the applicant assertion that he produced further evidence to Mr Hull after 16 December. The evidence is set out below,
Q. you didn’t give him any additional information after thay?
A. yes I did.
Q. you can’t identify it. You weren’t able to identify it yesterday and you can’t identify it now?
A. it is in the mass of documents.
Q. well, he says that what appears in annexure B was given to him by you over a period of time until 16 December. You dispute that , do you? After the 16th?
A. no, no. I didn’t give him any more information.
92 The applicant maintained in his evidence that he had not had access to the flexi sheets of other staff members. When counsel put it to him that he had told Mr Hull that he had in fact accessed these records he admitted that he did. The evidence was,
“Q. so that when you told the Court a few moments ago that you were denied access – remember I asked you what did you have access to and what didn’t you have access to, and you said you never had access to the flexi sheets, that was a lie?
A. No, I wouldn’t call it a lie.”
93 There are many such discrepancies and contradictions throughout the applicant’s evidence that time does no allow to record but it is sufficient to say that he was a most unsatisfactory witness. Examples of him not telling the whole truth are common, the most glaring is in the forty one page statement (annexed as K16 to his affidavit exhibit A1). On page 2 he states,
“In 1986 Freeman’s Real Estate went into liquidation which lead to the period of unemployment. My relationship with the parent firm N.C. Freeman & Son is a good one to this day.”
There is simply no mention here of the fact that his licence had been revoked by the Council of Auctioneers and Agents and that he had been permanently disqualified from holding a licence. On page 13 he recounts the quarrel he had with Mr Ambrosine on 4 November 1991 and the fact he was forced to “immediately seek help” some ten days later. He concludes this evidence with,
“A summons for apprehended violence was immediately issued against Mr Ambrosine, and the final court date in the matter was held on the 9th June 1992.”
At page 31 he takes up the hearing of the AVO,
“This was an all day affair and very stressful because I had to keep looking at Mr Ambrosine, across a table in the court room and this terrified me.
I sought protection from the court and this was recorded on transcript. My deep fears were also expressed, and in my testimony I said that I feared being physically attacked. The solicitor for the other side said,
“What, do you believe that they would get a hitman then?” “Yes, most definitely” I answered.
At the conclusion of the hearing I stated… “Let it be known today, before the court that I have approached the court for protection and should any thing happen to me it is now on public record that I hold very fears for my life.”
The applicant conveniently left out the fact the AVO was dismissed and costs were awarded against him.
Was the applicant a whistle blower?
94 The Collins concise dictionary, second edition, defines “whistle-blower” as a person who informs on someone or puts a stop to something. The Protective Disclosures Act does not define what nature of a disclosure must be, but says it must be in accordance with the ICAC Act. On the basis that ICAC have considered the applicant’s disclosures not worthy of further investigation, I assume, they were insufficient to be classed as disclosures. Having had the opportunity to listen to the applicant’s evidence and noting his wild and ridiculous accusations, I am sufficiently satisfied that the applicant is not a whistle-blower. I am of the opinion that the applicant has conveniently and cunningly used this as a means to prevent disciplinary measures against him. Further proof of this ploy is that he belatedly promises to spill the beans at his final interview with Mr Cappie-Wood, but once again has no substance to his allegations. Despite the applicant’s statements in his final address to this Court that he was bringing this case on behalf of all whistle-blowers, I am sure no well meaning whistle-blower would want to be associated with such a false prophet.
95 The only corrupt conduct that the applicant had any real evidence on was the ATM receipts that he had gathered on Mrs Welsh. He did not bother to produce this evidence until the Protective Disclosures hearing, well after his termination. He gave Mr Hull one of the receipts but, despite being asked for further evidence, failed to ever produce it. He showed Mr Cappie-Wood the torn up pieces at his final interview but never put them into evidence. His own evidence was that he had gathered these documents, not to prove that Ms Welsh was corrupt, but for other reasons. In his interview with Mr Hull, he was asked why he had kept these records after finding them in the garbage bin and he replied,
“Because I knew that one day this situation would arise. I knew I would be set up with trumped up charges and disciplinary hearings. I prepared myself for this day. I prepared myself by noting any conversations and numbers and I can provide records, I have kept a record of Welsh’s conversations on the phone and comings and goings.”
96 This is clear evidence that the applicant was not a whistle-blower. If he was, he would have immediately reported Ms Welsh’s conduct. In fact, he had a duty under the Departments Code of Conduct to report such conduct immediately. The applicant was more than aware of this code as he tendered it as an exhibit in his own case.
97 The claim that he was dismissed because he was a whistle-blower simply does not hold water. There was not one scrap of evidence, a fact the applicant admitted, to support this claim. It is more than probable that the Department as a whole were never aware that he had even made a report to ICAC. The reality is that the applicant was experiencing problems, mainly with his attitude as early as 1989, prior to his first allegations to ICAC in 1990. The reasons for the applicants reports to ICAC are most probably based on an attempt to get back at people within the Department who made it known that he had been disbarred as a real estate agent. There was evidence in the hearing, which the applicant acknowledged, that suggested this information was displayed on the notice board when he first arrived in the Department.
98 A further fact that dispels the claim that people within the department were out to have him dismissed is the decision of Ms Kibble not to dismiss him after the first charge of misconduct on 19 November 1991. At this time he could have easily been removed as the recommendation was for dismissal, however a reprimand and warning was issued and he was returned to work from suspension.
Welsh, Dries, Anton collusion claim
99 The conspiracy theory remains theory as there is no evidence to substantiate such an allegation. The applicant relies on the ATM receipts as irrefutable evidence that Ms Welsh has fabricated evidence against him. He bases this on what the Magistrate at the Protected Disclosures hearing said by way of comment after he dismissed the applicant’s claim. The Magistrate, without hearing from the other side, accepted that Ms Welsh had made false allegations about the applicant not working when she was attending an ATM down the street. The Magistrate took the view that Mr Hull should have investigated the applicants claim in this regard. The problem with that assertion is that the applicant just would not supply Mr Hull with the evidence to enable him to investigate into that aspect. He was shown one slip, which by itself proved absolutely nothing. Mr Hull states on page 6 of his report,
“Mrs Welsh stated that the statistics in her report were compiled on each day and a note taken by her. On the occasions that Mrs Welsh was not in the office she had requested other officers to take a note of Mr Pelechowski’s personal phone calls or work and advised her on her return. Mrs Welsh provided me with the original notes taken.”
Ms Welsh’s evidence was corroborated by Ms Mikha and Ms Angulo who both gave evidence that they noted the applicant’s activities in her absence.
100 It might well be that Ms Welsh told lies about carrying out personal work during departmental time and that she continued to do so after she was told not to. The applicant was not terminated because of his time spent on the telephone or carrying out personal work, he was charged under s 66 (b) (i) and (ii) with this offence but was only fined $100.00 for each of the charges. He was terminated for reasons under s 66 (d) and (f), ie, failure to follow direction not to take leave without adequate notice, disobeying lawful orders to cease using departmental equipment, being unreasonably disruptive, argumentative and causing disharmony with co-workers and failing to act with courtesy and concern for the general welfare of other staff.
101 The evidence that he was guilty of these offences is overwhelming. The charge that he continued to take leave without adequate notice was admitted by the applicant in cross-examination. The evidence on page 186 of the transcript is as follows,
“Q. yes, leave aside sick leave?
A. leaving aside sick leave, the other leave was—this is what they brought up was that I wasn’t giving sufficient time for leave that was predictable.
Q. yes?
J.REGISTRAR. and what is your answer to that?
I always left it to the last moment in the event that there could be a- that it could be cancelled or I could avoid that particular meeting.”
And on page 199 of the transcript the matter continues,
Q. Incidentally, having been questioned about the lack of notice for taking certain leave – having been questioned about that on 8 September and leaving it to the last moment to give people notice, given the reason that you have advanced for doing that, namely not to inform them?
A. or until the last moment
Q. yes, it is correct to say, isn’t it, that after 8 September you continued to leave it to the last moment for the same reasons?
A. especially, yes.. especially after that meeting, yes. I knew the guns were out.
102 As to the other charge of disobeying a lawful order, requiring the applicant to cease using the departments, telephones and photocopiers for personal use, I am satisfied that this order was given and the applicant disregarded it. The evidence of Mr John Dries is sufficient to satisfy that point. As well as the evidence of Mr Dries, there is the affidavit of Mr Anton and his evidence before the Protective Disclosures Hearing. Added to this are the reports of Mr Hull and Mr Russell, two independent inquirers, who, despite the applicants claim they were out to get him, made no recommendation that his services be terminated. Also, under cross-examination, the applicant admitted that he had resolved the personal problems that had required him to utilise the Department’s equipment and time. The fact was proven however that this was not the case and the applicant was heavily involved with these personal problems (mainly legal and court matters) right up to his final suspension.
103 With regard to s 66(f), the applicant readily agreed that the relationship between his fellow workers had broken down. In fact the one person he trusted , Mr Kirby, was called as a witness by the applicant. Mr Kirby made it quite clear how the applicant treated others and how he was regarded. When cross-examined as to threats of defamation action made to him by the applicant, Mr Kirby’s evidence was,
Q. did that trouble you?
A. well it did because I wasn’t aware – like I’ve got no training or understanding and Karl can be quite convincing when he wants to be and I didn’t know where I stood and I knew, because I’ve had to write reports…he would remember where I was sitting and he’d come over and just lean over and say it so no-one else heard it…And it did rattle me because I was just doing, you know. I didn’t see I was doing anything wrong, I was just doing what I was paid to do.
Q. did you find it intimidating?
A. I found so. If I knew it was just all rubbish, if it was something, you know, if he came over and said I’ll turn you into a duck or something ridiculous you could \just dismiss him, but when you don’t know these sort of things, yes, it does play on your mind.
Q. these were the things he was saying also to Crowe and Issarhany?
A. that’s right, yes…. Well she was scared or it could be because she had a young family she was—also mentioned she was harassed on the station by Mr Pelechowski… I was subjected to intimidation, like one time… he just came and stood in front of the table and looked at me and didn’t say a word.”
Section 170 DC
104 Throughout the hearing the applicant has claimed that he was not afforded procedural fairness pursuant the requirements of the Federal Act. His main problem in this regard is that he will not acknowledge that he has ever done anything wrong. He certainly admits things but in his eyes they are not a problem or could not be classed as serious matters. These claims, he says are all exaggerated or made up to rid him from the public service. What then happened when he was called before Mr Hull and Mr Russell is that he brought out the corruption allegations and the conspiracy theories and sprinkled them with a few veiled threats. The same situation arose at the interview with Mr Cappie-Wood and Ms Rutledge. He made them aware that he was seeking protection under the Protective Disclosures Act, took them through the conspiracy theory, offered a few general allegations, showed some torn up receipts which he took back, made an offer of settlement for $750,000.00 and went away pleased with the way he went. Other than denying all the charges he made absolutely no effort to address his problems.
105 Mr Cappie-Wood, in the circumstances of this case, has certainly complied with the requirements of s 170DC of the Act and I find that the reason for termination was a valid reason in the circumstances. The process that was conducted in accordance with the Public Sector Management Act, allowed the applicant at least three opportunities to respond to the allegations against him. The interview conducted by Mr hull had put the applicant on notice as to what the particulars were as to the allegations and he had several extensions of that process in order to answer them. Mr Russell’s interview again reinforced the allegations and extensions of time were again granted to the applicant. By the time the applicant appeared before Mr Cappie-Wood he was well acquainted with what the Department had charged him with, yet once again he simply refuted the charges.
As to the requirement of Section 170 DC as set out in Nicholson v. Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199 Wilcox CJ said,
“ The paragraph does not require any particular formality. But it does not mean that it is unimportant or capable of perfunctory satisfaction.’
The department has more than satisfied these requirements offering the applicant every opportunity to put his side of the story. In fact the department had put the applicant on notice as far back as 30 July 1992, when he was reprimanded and warned by Ms Kibble. His allegations of corruption were referred to ICAC both before and after his interviews and were found to be not worth investigating by the ICAC. As to the applicant’s insistence that he be afforded protection under the Protected Disclosures Act, Mr Cappie-Wood gave evidence that he considered that the applicant was avoiding disciplinary action. S 18 of the Act states,
“A disclosure that is made solely or substantially with the motive of avoiding dismissal or other disciplinary action, not being disciplinary action taken in reprisal for the making of a protected disclosure, is not (despite any other provision of this Part) a protected disclosure.”
106 Subsequent to the applicant’s dismissal, he took a complaint out against Mr Cappie-Wood and Ms Rutledge under the Protected Disclosures Act. This complaint was dismissed on the basis of no case to answer.
107 At the commencement of the hearing of this matter the applicant promised a list of his leave taken. He claimed that this list would prove that the allegations made against him concerning his leave were unfounded. Promises were made that this document would be provided on nearly every other day or the next day but it was never forthcoming to be able to be put to any witness. After his final submissions the applicant waved a document that purported to be this schedule however as its value at this stage of the hearing was negligible I declined to accept it into evidence. This was clearly a document that should have been given to Mr Cappie-Wood when he had the opportunity or at an earlier interview but was obviously not considered important enough then. The applicant continued throughout the hearing to promise irrefutable evidence but this was never produced.
Having considered the evidence of Mr Cappie-Wood I am satisfied that the reason for the termination of the applicant’s employment was for the reasons as set out in the letter of charge and for no other. The claims pursuant to s 170DF relating to temporary absences from work because of illness, filing a complaint, disability, perceived mental disability or race and family responsibilities are not sustainable in this matter.
108 As to the applicant’s claim I make the following findings:
(a) As to breach of s 170 DE (2), I am unable to make any findings as this section was found to be invalid by the High Court.
(b) .As to breach of s 170 DC, I find that the Respondent has complied with the requirements of the Act..
(c) As to s 170 DF(1)(a), I find that the respondent has satisfied their onus pursuant to s 170EDA(2).
(d) As to s 170DF(1)(e), I find that the respondent has satisfied the onus pursuant to s 170EDA(2).
(e) As to s 170DF(1)(f) I find that the respondent has satisfied the onus pursuant to s 170EDA(2).
(f) As to a breach of s 170DB(1), I am satisfied that the applicant was guilty of serious misconduct in accordance with s 170DB(1) (b).
109 For these reasons I find that the application must be dismissed.
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I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment herein of Judicial Registrar Walker. |
Associate:
Dated: 13 July 1999
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Counsel for the Applicant: |
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Solicitor for the Applicant: |
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Counsel for the Respondent: |
Mr Goot |
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Solicitor for the Respondent: |
Toomey Pegg & Drevikovsky |
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Date of Hearing: |
28 June - 23 July 1999 |
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Date of Judgment: |
13 August 1999 |
