Industrial Relations Commission New South Wales Medium Neutral Citation: Browne v Industrial Relations Secretary on behalf of the Department of Communities and Justice [2020] NSWIRComm 1056 Hearing dates: 29 and 30 April, 1 and 18 May and 15 June 2020 Date of orders: 4 September 2020 Decision date: 04 September 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: I order that: (1) the decision of the Department to terminate Mr Browne's employment (after giving him an opportunity to resign) is quashed, and in its place Mr Browne is to be reduced to the classification of Sheriff's Officer under the Crown Employees (Sheriff's Officers) Award ("Award"); (2) the Department is to restore Mr Browne to employment, in the classification of Sheriff's Officer under the Award; (3) the Department is to pay Mr Browne an amount equal to the rate of pay he would have received in the classification of Sheriff's Officer under the Award from 16 September 2019 until order (2) is put into effect, less any amounts paid to Mr Browne as the consequence of him tendering his resignation on 16 September 2019; (4) orders (2) and (3) take effect from Monday, 21 September 2020; and (5) Mr Browne's service is to be taken as having not been broken by virtue of his dismissal and the period between then and his re-employment pursuant to orders (2) and (4). I direct that: (1) the parties confer as to the location at which Mr Browne will work; (2) the parties have liberty to apply on reasonable notice in the event that the Commission's further assistance is required to resolve any dispute or difficulty regarding Mr Browne's work location; and (3) the file be closed on 2 October 2020 unless Mr Browne seeks before that time to have the matter re-listed or requests an extension of time. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Dismissal – escape of detainee through open court door – whether Sheriff's Officer committed misconduct by leaving the door open and in his subsequent reporting of the incident – whether misconduct warranted termination of employment Legislation Cited: Court Security Act 2005 (NSW) ss 3, 4(1), 21 Crimes Act 1900 (NSW) s 310C Government Sector Employment Act 2013 (NSW) ss 7, 50, 69 Independent Commission Against Corruption Act 1988 (NSW) s 8 Industrial Relations Act 1996 (NSW) Ch 2 Pt 7, ss 98, 100C Medical Practitioners Act 1938 (NSW) Sheriff Act 2005 (NSW) s 7 Sheriff Regulation 2016 (NSW) cl 5 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Calman v Commissioner of Police (1999) 73 ALJR 1609; [1999] HCA 60 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Pty Ltd (1986) 160 CLR 226 Denise McKay v Department of Family & Community Services [2018] NSWSC 44 Maritime Services Board v Murray (1993) 52 IR 455 Marroun v State Transit Authority [2017] NSWCA 273 Mathieu v Higgins & Anor [2008] QSC 209 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 North v Television Corporation Ltd (1976) 11 ALR 599 Pillai v Messiter [No 2] (1989) 16 NSWLR 197 Category: Principal judgment Parties: David Browne (Appellant) Industrial Relations Secretary (Respondent) Representation: Counsel: D Chin SC (Appellant) K Brotherson (Respondent) Solicitors: McNally Jones Staff (Appellant) File Number(s): 2019/290542 Publication restriction: No Judgment 1. On 23 August 2018 a juvenile detainee escaped from the Nowra Court House through an external door which had been left open. David Browne, a Sheriff's Officer who held the rank of Sergeant and was the Officer-in-Charge ("OIC") of the Nowra Court House, was on duty that day. Following an investigation into the escape Mr Browne was found to have engaged in misconduct by leaving the door open and in his subsequent reporting of the incident. 2. Mr Browne was employed in the Courts, Tribunals and Service Delivery section of the Department of Communities and Justice ("Department"). As a result of the findings against him, the Department decided to terminate Mr Browne's employment after giving him an opportunity to resign. 3. Mr Browne appeals that decision under s 98(1) of the Industrial Relations Act 1996 (NSW) ("IR Act"). 4. Pursuant to s 50 of the Government Sector Employment Act 2013 (NSW) ("GSE Act"), in proceedings such as these the proper respondent is the Industrial Relations Secretary. However, for ease of comprehension I will refer to the respondent as the Department. Hearing and evidence 1. The hearing took place on 29 and 30 April, 1 and 18 May and 15 June 2020. Mr D Chin SC of counsel appeared for Mr Browne. Mr K Brotherson of counsel appeared for the Department. 2. The Department relied on the following: 1. two statements of Noel Ford, Manager Workplace Relations, Strategic Human Resources in the Department, dated 27 November 2019 and 11 March 2020; 2. two statements of Daniel Gordon, Superintendent – Security Coordinator at the Office of the Sheriff of NSW, one dated 29 November 2019 and the other undated but filed on 12 March 2020; 3. two statements of Tracey Hall, the Sheriff of New South Wales, dated 29 November 2019 and 11 March 2020; and 4. two statements of Goran Jakovski, Learning and Development Coordinator in the Office of the Sheriff of NSW, dated 5 December 2019 and 11 March 2020. 1. Mr Browne relied on the following: 1. a statement he had signed on 3 March 2020; 2. a statement of Joshua Hall, Sheriff's Officer First Class, dated 28 February 2020; 3. a statement of Stephen Hancock, Sergeant at the Downing Centre Court Complex, dated 7 February 2020; and 4. a statement of Edward Lia, Inspector and Officer-in-Charge at Campbelltown Court House, dated 28 February 2020. 1. At the conclusion of the evidence I requested that counsel each prepare a single and comprehensive set of submissions setting out their respective cases. I have been greatly assisted by the submissions which were subsequently presented by them. Factual context 1. Mr Browne commenced employment as a Sheriff's Officer, initially as a trainee, on 24 October 1994. Throughout his career he worked at a number of locations including Campbelltown Local Court, Taree Local Court, Downing Centre Local Court, Parramatta Court House, Wollongong Court House and Nowra Court House. 2. Mr Browne enjoyed a successful career as a Sheriff's Officer. From approximately 2000 he had been working as a Relieving Sergeant and had acted up as an Inspector at Wollongong for approximately 11 years, prior to being appointed to a Sergeant's position as the OIC at Nowra Court House in approximately September 2017. Mr Browne's evidence included commendations that he had received during the course of his employment and a Diamond Award which he received as a result of "consistent outstanding performance in [his] career". [1] 3. In unchallenged evidence Mr Browne stated: [2] "63. Prior to the escape by the detainee in August 2018, I had never been counselled, warned or reprimanded in relation to my work performance or conduct at work." Regulatory context of Mr Browne's employment 1. The role of a Sheriff's Officer is given statutory force by the Sheriff Act 2005 (NSW). Section 7 of that Act requires a Sheriff's Officer to take an oath or affirmation of office. The prescribed oath or affirmation includes a statement that the Sheriff's Officer will "to the best of [their] skill and knowledge discharge all [their] duties faithfully according to law": cl 5 Sheriff Regulation 2016 (NSW). 2. A Sheriff's Officer is a "security officer" for the purposes of the Court Security Act 2005 (NSW) (see ss 4(1) and 21), who is conferred with certain functions under that Act to provide for the secure and orderly operation of courts: s 3. 3. Mr Browne was employed in the Public Service under the GSE Act. Section 7 of the GSE Act relevantly provides as follows: 7 Government sector core values The core values for the government sector and the principles that guide their implementation are as follows— Integrity … (b) Act professionally with honesty, consistency and impartiality. (c) Take responsibility for situations, showing leadership and courage. (d) Place the public interest over personal interest. … Accountability … (b) Take responsibility for decisions and actions. (c) Provide transparency to enable public scrutiny. … 1. The Department has a Code of Ethics and Conduct Policy ("Code of Ethics"), which applied to Mr Browne in his employment. The Code of Ethics includes the following: "4.5 Principles for professional behaviour … Employees are expected to: • perform their duties to the best of their ability and be accountable for their performance; • adhere to all reasonable instructions and/or directions; • comply with lawful directions; • carry out their duties in a professional, competent and conscientious manner; … • be mindful of the duty of care and safety of themself [sic] and others; and be aware that if their conduct has the potential to damage the reputation of the Department, even if it is in a private capacity, this could lead to further action. … 6.3 Professional behaviour towards employees and others As professionals employees must strive at all times to relate professionally to colleagues, clients, their families and members of the public and to act with courtesy and fairness. In dealings with others, staff should ensure that they do not prejudice the operations, security or reputation of the Department. … 6.3.1 Maintaining employee confidentiality, privacy and appropriate records … In relation to the maintenance of appropriate records, a record serves an essential administrative, legal and historical purpose. … Employees have a responsibility • to create and maintain full, accurate and honest records of their work activities, decisions and other business transactions. …" 1. The role description for Mr Browne's position of Sergeant described the "primary purpose of the role" as including the following: "Sworn uniformed Sheriff's Officers have law enforcement, security and other court related responsibilities under the direction and supervision of the Officer-in-Charge. …The security duties involve maintaining the security of court complexes and the safety of people attending these complexes." 1. The role description called for the officer to "identify security risks and provide appropriate support" in relation to judicial officers and court staff. Capabilities such as "display resilience and courage", "act with integrity" and "demonstrate accountability" are required at the "intermediate" level. The events of 23 August 2018 1. I find that the following facts have been established: 1. Mr Browne was at work at Nowra Court House on 23 August 2018. 2. Shortly after midday Mr Browne was in the Sheriffs' office. He received an intercom call that a Juvenile Justice [3] vehicle required access to the court's car park. The van contained two Juvenile Justice Youth Workers and a juvenile detainee who was due to appear in court. 3. Mr Browne remotely opened the car park gate for the vehicle to enter, and proceeded on foot to the carpark. 4. At approximately 12:13:07pm Mr Browne opened the external door to the cell area of the Court House with his security access card to allow the two Youth Workers and the detainee into the court building. Mr Browne entered first followed, in turn, by a Youth Worker, the detainee and the other Youth Worker. 5. The external door between the cell area and the car park was left open. 6. Mr Browne led the Youth Workers and the detainee through the cell area and into a corridor leading to the court room. Mr Browne watched the Youth Workers and the detainee enter the court room. 7. Mr Browne returned to the cell area. He walked through the cell area to the open external door, and at approximately 12:14:01pm looked out of the open door into the car park. 8. Without closing the external door, Mr Browne returned through the cell area. He turned on lights in the area. 9. Mr Browne returned to the corridor outside the court room. He closed the court room door and returned to the Sheriffs' office. 10. Following the conclusion of the detainee's hearing, the detainee broke free from the Youth Workers at or around the court room door, turned in the direction of the cell area, and ran through the cell area. At approximately 12:18:45pm the detainee exited through the open external door into the car park. He escaped over the fence to the car park, which was approximately two metres high. 11. No person had been in the cell area, or in the area of the external door, in the time between Mr Browne looking out of the open door and the detainee escaping through it. 12. Approximately 5 or 10 minutes after Mr Browne had returned to the Sheriffs' office the intercom activated. He checked the cameras and observed that the Juvenile Justice vehicle appear to be ready to leave the carpark. Mr Browne went to the carpark. It was then that he was informed of the escape of the detainee. 13. Mr Browne informed the police, his Acting Regional Commander, Mr Barry Wademan, and the Registrar of the Nowra Court of the escape. 14. The police attended the Nowra Court and asked to see the court's CCTV footage. Mr Browne, with the assistance of Mr Joshua Hall, a Sheriff's Officer who was also on duty that day, showed that footage to the police. The police informed Mr Browne and Mr Hall that there had been intelligence that the detainee was "an escape risk", which apparently had not been passed on to the Office of the Sheriff. 15. Mr Hall, under Mr Browne's supervision, prepared eight clips of relevant parts of the court's CCTV footage. 16. Mr Browne had a number of telephone discussions with Ms Kathy Frost, Regional Director of Illawarra South. The aftermath 1. In keeping with the Department's requirements, Mr Browne was required to complete a "Security Incident Report" ("SIR"). He had received training on the preparation of SIRs on 18 March 2015. On 24 August 2018 he spoke to Daniel Gordon, who at the time of the incident held the position of Acting Commander – Security Intelligence and Risk, about the escape and the need to complete the SIR. Mr Browne completed the SIR that day. 2. As the SIR is central to several of the allegations against Mr Browne, it is appropriate to reproduce it largely in whole: "On Thursday 23 July 2018 I was performing duties at Nowra Court House, at about 12:20pm the car park intercom activated in the Sheriff?s Office. I answered the intercom and observed on the security monitor also located in the Sheriff?s Office that it was Juvenile Justice Officer?s in a marked Juvenile Justice Van needing access to the court house secure car park so they could bring in a Juvenile that was in custody and needing to appear in front of the Court (Court #1). I electronically opened the car park gate and proceeded to meet them out in the car park. I meet the Juvenile officer?s at the entry point of the court house for persons in custody. I swiped my security access card and entered into the building first and just behind it was a Juvenile Justice Officer with the Juvenile…and just behind them was the second of the Juvenile Justice Officer?s, I remained in front of them at all times. I observed the Juvenile Justice Officer?s remove the handcuffs off the Juvenile in the hallway just outside of the court room, and then taken him into court room. In the hallway area it was a bit dark and I was trying to locate the light switches to turn the lights on, immediately after this I returned back to the Sheriff?s Office. About 5 to 10 minutes later the car park intercom activated in the Sheriff?s Office. I answered the intercom and observed on the security monitor located in the Sheriff?s Office I observed that it was Juvenile Justice Officer?s in a marked Juvenile Justice Van needing to exit the car park. I attended the car park to assist them in exiting the car park it was at this time they advised me that the Juvenile had just escaped their custody and jumped over the fence. I asked them if they are ok or if they needed anything, they said that they are ok and they will need to report this. A short time later a Sergeant and a Senior Constable Potts from Nowra Police attended and had a conversation with me and requested to view the CCTV footage of the escape from custody and also a CCTV Request form, and asked if I would walk them through the area were the incident took place which I did. I then returned back to my normal duties." (Sic) 1. In so far as Mr Browne was concerned, there was no other immediate response to the incident on 23 August 2018. 2. The detainee was re-apprehended on 13 September 2018. The detainee was subsequently convicted of committing two offences on 10 September 2018: "take and drive conveyance w/o consent of owner" and "never licensed person drive vehicle on road". 3. On 1 May 2019 Mr Gordon completed a "Summary of an Allegation or Complaint Against an Employee Form" ("Complaint"). Mr Gordon deposed that he was prompted to make the Complaint after he had seen footage from the Juvenile Justice van which showed Mr Browne look out of the open external door and walk away, leaving it open. That footage had only become available a short while before Mr Gordon began to prepare the Complaint. 4. In his description of the incident in the Complaint, Mr Gordon stated: "5. In a report dated 23/08/2018 from Kathy Frost, Regional Director of Illawarra South, S/SGT Browne indicated that he was not aware the door was unsecured. He further indicated that he was not aware that the door was unsecured until CCTV footage from the Nowra Court House was reviewed by himself. He was asked by A/Regional Director Frost whether or not the door was beeping as it should when not secured, S/SGT Browne indicated there was no beep and he was not aware the door was not closed properly until he viewed the security footage. He also asserts that he was well in front of JJ staff, and at all times the juvenile was in custody of the JJ officers. 6. It is from my recollection as A/Commander – Security Intelligence and Risk at the time that S/SGT Browne repeated similar comments to myself, as well as A/Regional Commander Wademan after the event. He also repeated the same comments to the Sheriff Hall the day after the event. … 8. After reviewing CCTV footage provided by Juvenile Justice…S/SGT Browne can be clearly seen appearing and standing in the doorway, then leaving seconds later without securing the door. The door itself is wide open, enough for S/SGT Browne to stand in the door opening itself and look out into the back car park. By comparing this footage and the events outlined in point 6 above, it is at this point he returns back to secure the court room door, and return to the Sheriff's Office. At this point the rear door is unsecured. 9. By not securing the rear door, S/SGT Browne contributed to the point of being the primary factor, in the escape of custody of the juvenile from the Nowra Court House." 1. Under the heading "Risk Assessment" in the Complaint, Mr Gordon stated: "S/SGT David Browne demonstrated negligence in the discharge of his security duties as a Sheriff's Officer, and as the Officer in Charge of the Nowra Sheriff's Office. Furthermore, S/SGT Browne has actively omitted information from the incident reporting, as well as appearing to actively lie to executive members of Courts and Tribunal Services and the Sheriff's Office in relation to the events as they occurred on the door. Browne through his actions helped facilitate the escape of the juvenile who was in lawful custody of Juvenile Justice by not closing the rear door to the building when he clearly knew it was left open. These actions bring into question his character and his ability to be trusted to work unsupervised or in a position of leadership. At the time of this event, Juvenile Justice asserted to the media that the Sheriff's Office did not secure the door, to which Justice Media publicly refuted and put back on to Juvenile Justice, based on the comments and reports of S/SGT Browne; which have now turned out to be misleading and false." 1. The Department commenced an investigation into Mr Browne's conduct. In a letter dated 31 May 2019 signed by Catherine D'Elia, the Deputy Secretary of Courts and Tribunal Services, the following allegations were put to Mr Browne for response ("Allegations"): 1. On the 23 August 2018, between approximately 12.20pm and 12.45pm at Nowra Court Complex, you breached s4.5 of the Code of Ethics and Conduct, by failing to carry out your duties as a Sheriff's Officer, in a professional, competent and/or conscientious manner by failing to assure the security of the court, thereby facilitating the escape of a detained juvenile by: a. Failing to secure an external entry/exit door into the court complex, leading to court room 1, following initial entry of a juvenile detainee in the custody of two Juvenile Justice Youth Officer's b. Failed to secure the external entry/exit door into the court complex, leading to court room 1, by leaving the door open upon later re-inspection of the external entry/exit point, prior to conclusion of the scheduled hearing that was taking place involving the detailed youth. 2. On the 23 August 2018, at Nowra Court Complex, you breached s6.3.2 of the Code of Ethics and Conduct, in your role of a Sheriff's Officer in charge of court security, by failing to provide a full, accurate and/or honest record of the incident and/or events involving the escape of the juvenile in custody, in the reporting of the incident and/or completion of necessary reports. 3. On the 23 August 2018, at Nowra Court Complex, you breached s9.3 of the Code of Ethics and Conduct, by engaging in corrupt conduct in the discharge of your duties as a Sheriff's Officer through the provision of false and/or misleading statements to the Department and/or external authorities. 4. On the 23 August 2018, in engaging in the conduct and behaviour described at allegations 1 to 3, you breached s6 of the Code of Ethics and Conduct, by jeopardising the operations and/or reputation of the Department of Justice and the Office of the Sheriff who has a prime responsibility for the security of courts. 5. The actions, conduct and behaviours in engaging in the conduct and behaviour specified in allegations 1 to 4, you failed to uphold the Government Sector Core Values and principals of Integrity, Trust, Service and Accountability as prescribed within Section 7 of the Government Sector Employment Act 2013." (Sic) 1. In order to prepare his response, Mr Browne arranged to view the CCTV footage from both the Nowra Court House and the Juvenile Justice van. A request that he made for access to documents relied on by the Department to make out the Allegations was refused. 2. Through his solicitor, Mr Browne responded to the Allegations in a letter dated 29 July 2019. The letter denied, in quite succinct terms, all of the Allegations. However, attached to the letter was a statement from Mr Browne describing in more detail his recollection of the events of 23 August 2018. 3. On 31 July 2019 Noel Ford completed a document titled "Briefing to Deputy Secretary, Allegations of Misconduct: Stage 2" ("Stage 2 Document"), in which he sought a decision from Ms D'Elia regarding the disciplinary action to be taken against Mr Browne. He made the following comments: "Sgt BROWNE's response to the allegations have been very non-specific, especially in relation to the two critical incidents involving the closure and securing of the back door. Sgt BROWNE attached a supplementary document to his solicitor's letter describing in a 22 point explanation of his actions during the incident. These also do not adequately describe his movements at the rear door on the two occasions, which are not supported by the CCTV footage of his actions. Sgt BROWNE also attached a commentary on the issues of 'Court Security' and 'Custody of Prisoner', describing various responsibilities, but again did not respond to the specific issues of the non-securing of the rear door by him on two occasions. The evidence held in relation to the incident, as well Sgt BROWNE's lack of specific responsiveness to all the allegations, gives rise to the likelihood of all five of the allegations being substantiated." (Sic) 1. In a letter dated 2 August 2019 Ms D'Elia informed Mr Browne that each of the Allegations had been sustained. She stated that she was considering taking disciplinary action against him, with the severest form being "terminate the employment of the employee (after giving the employee an opportunity to resign)". Mr Browne was invited to make submissions. 2. Mr Browne provided those submissions on or about 30 August 2019, through his union. 3. In a letter dated 4 September 2019 Ms D'Elia informed Mr Browne that she had decided to terminate his employment, after giving him the opportunity to resign ("Decision"). 4. On advice from his union, Mr Browne tendered his resignation on 16 September 2019. Applicable law and principles 1. Mr Browne has appealed against the Decision pursuant to s 98 of the IR Act. There was no contest that the appeal is properly brought under Ch 2 Pt 7 of the IR Act. 2. By s 100C(2) of the IR Act, the Commission may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. 3. In Marroun v State Transit Authority [2017] NSWCA 273 the Court of Appeal examined the Commission's jurisdiction under Ch 2 Pt 7. From that decision it is possible to derive the following principles: 1. An appeal under Ch 2 Pt 7 is a fresh hearing of the allegation of misconduct (or an administrative hearing de novo). (In Marroun it was common ground that the proceeding before the Commission was a fresh hearing: at [29]. The Court stated that a conclusion that an appeal under Ch 2 Pt 7 is a fresh hearing was supported by the decision of the High Court in Calman v Commissioner of Police (1999) 73 ALJR 1609; [1999] HCA 60: at [30]; see also [32] and [34].) 2. An appeal by way of fresh hearing means that the appellate body "stands in the shoes of" the original decision-maker. Where there is a specific charge or complaint before the employer, which has resulted in particular disciplinary action, it will be necessary for the Commission to consider that charge or complaint and, if it be upheld, determine what disciplinary action should be imposed: at [35]. In other words, the Commission is to engage in a two-step process: first, to determine whether the employee has engaged in the misconduct alleged; and second, if the employee has engaged in that misconduct, to determine what disciplinary action is to be taken: at [45]-[47] and [62]. 3. If the allegations of misconduct on which the original decision-maker relied are not proven to the satisfaction of the Commission, the Commission is obliged to allow the appeal: at [62]. 4. Generally, it is assumed that the appellate body has the same powers as the original decision-maker, no more and no fewer: at [35]. The appeal is "a fresh exercise of administrative power"; it is not the exercise of a different power for the first time: at [48], relying on Calman. 5. Post-decision events or conduct may be relevant to the consideration of penalty, but not to the consideration of the essential precondition to the imposition of a penalty, namely whether the disciplinary charge has been proven: at [56], citing Maritime Services Board v Murray (1993) 52 IR 455. 6. If the Commission allows the appeal the Commission may consider post-decision events or conduct in determining whether some lesser form of disciplinary action was appropriate: at [62] and [63]. 1. The misconduct must be established on the balance of probabilities. As stated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2: "The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. …Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences." 1. The Decision was made under s 69 of the GSE Act, which relevantly provides as follows: 69 Misconduct - Public Service and other prescribed government sector employees (1) In this section: … misconduct extends to the following: (a) a contravention of this Act or an instrument made under this Act, … (3) The government sector employment rules may deal with the following: (a) misconduct by employees of government sector agencies, (b) the procedural requirements for dealing with allegations of misconduct by employees of government sector agencies (consistently with procedural fairness). (4) If, in accordance with those rules, there is a finding of misconduct by an employee of a government sector agency, the person who exercises employer functions in relation to the employee may take any of the following actions: (a) terminate the employment of the employee (without giving the employee an opportunity to resign), (b) terminate the employment of the employee (after giving the employee an opportunity to resign), (c) impose a fine on the employee (which may be deducted from the remuneration payable to the employee), (d) reduce the remuneration payable to the employee, (e) reduce the classification or grade of the employee, (f) assign the employee to a different role, (g) caution or reprimand the employee. … 1. The concept of misconduct is not defined in the GSE Act. Section 69 extends the concept to a number of particular circumstances, without being exclusive in that extension: Denise McKay v Department of Family & Community Services [2018] NSWSC 44 at [106]. 2. In the context of s 69 of the GSE Act, the following passage from the judgment of Smithers and Evatt JJ in North v Television Corporation Ltd (1976) 11 ALR 599 at 608-609 is apposite: "It is of assistance to consider the expression 'misconduct' by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression 'misconduct' as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment. This situation would arise if there were conduct inconsistent with the fulfilment of the express or implied conditions of service. It is conduct of that kind which will justify dismissal at common law. And it was decided by a Full Bench of this Court in Crosland v John Fairfax and Sons Pty Ltd, supra, that the test of misconduct for the purposes of a clause identical with cl 10(e) was the same as the test of misconduct at common law. No reason has been advanced to challenge the validity of this decision. We respectfully find ourselves in agreement with it. For purposes of the application of the common law principles to the facts of this case, the remarks of the Master of the Rolls in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 at 287 and 289 , are in point. He said:— To my mind the proper conclusion to be drawn from the passages which I have cited and the cases to which we were referred is that, since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. … I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is 'wilful'; it does (in other words) connote a deliberate flouting of the essential contractual conditions." 1. Section 69 of the GSE Act allows for a range of outcomes if an employee is found to have engaged in misconduct, ranging from termination of employment to a caution or reprimand. As in North, this context indicates that "certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination". If action is to be taken under s 69(4)(a) or (b), it will be necessary to demonstrate that the misconduct in which the employee engaged warrants termination of employment. The Allegations 1. The Allegations in essence involve two contentions about Mr Browne's conduct. The first is contained in Allegation 1, namely a failure to secure the external door of the Nowra Court House on 23 August 2018. The second, which underpinned Allegations 2 and 3, is that Mr Browne provided a dishonest report of the incident. Allegations 4 and 5 seek to characterise Mr Browne's conduct as alleged in Allegations 1, 2 and 3 as breaching, in turn, the Code of Ethics and the GSE Act. Allegation 1 – Leaving the door open 1. Mr Browne was aware that the external door leading out of the cell area was open. He looked out of the door into the car park before leaving the area, with the door wide open. The door remained open until the detainee escaped through it. 2. As his role description made clear, Mr Browne was responsible for "maintaining the security of court complexes and the safety of people attending these complexes". He had received training during his employment which emphasised the importance of court security. 3. The Department placed some weight on training titled "Security Awareness" that its records show Mr Browne undertook on 16 October 2014. The documents comprising that training contained the following statements: "Providing a safe and secure environment for court and tribunal staff and our clients is a key element in the delivery of Court and Tribunal Services. … The court and tribunal premises are secure locations and should be treated as such. …Our clients should expect all court and tribunal facilities to be safe and secure. … Sheriff's Officers, under the direction of the Sheriff of NSW, maintain the operational safety of court premises across NSW. … You must never leave doors or emergency exit doors ajar or open." 1. It is perhaps possible to overstate the significance of this training. It appears to have been an on-line training module estimated to take only 20 minutes to complete. However, Mr Browne accepted that the documents were familiar to him and reflected his obligations. 2. Mr Browne himself had prepared a document titled "Standed [sic] Operational Security Orders for Nowra Local Court House", dated August 2018. While expressly stated to be a "guide", the document sets out the procedures designed to ensure the security of the Nowra Court House and the safety of participants in the judicial system. 3. Mr Browne's conduct in leaving the external door open was contrary to the security training he had received during his employment. It was also inconsistent with the Operational Security Orders he had developed. 4. However, Mr Browne defended his conduct on the basis that he was following a long-standing and accepted practice of Sheriff's Officers ceding control of exit and entry doors in and around the cell area of the court house to officers from an external agency such as Juvenile Justice when they bring a detainee to court ("Practice"). Mr Browne deposed as follows: [4] "10. When I joined the Sheriff's Office as a trainee in 1994, I was being shown the Cell Area within Campbelltown Courthouse by an OIC of Corrective Services NSW ('the CSNSW OIC'). He was providing me and others with a tour through this area. … 12. The CSNSW OIC stressed to us in words to the effect that 'in the Cell Area, if a custodial officer opened a door, the door is to remain open. If they closed a door, it is to remain closed'. I was told that one of the reasons for this was that 'a custodial officer does not want to be potentially locked in with or locked out from a detainee'. 13. The CSNSW OIC taught me that the cell area is the domain of Juvenile Justice ('JJ'), CSNSW or the Police when they bring a detainee, inmate or person in custody to court; and Sheriff's Officers do not interfere with their activities in the cell area. I was told in words to the effect that 'there is no reason for Sheriff's Officers to go down to the cell area when it was occupied by JJ, CSNSW or the Police, as it is their domain while they are at court with an inmate, detainee or person in custody'. … 17. Throughout my career as a Sheriff's Officer, I ensured the security of the court complex, including any exit/entry door in the cell area. However, I followed the practice of not interfering with the exit/entry door in the cell area when CSNSW, JJ, or the Police brought a detainee, inmate or person in custody to court. This was the practice I observed at each of the court houses I worked at throughout my career, including at the Nowra Court complex." 1. Each of the witnesses called by Mr Browne confirmed the existence of the Practice. Mr Lia, who has more than 26 years' service as a Sheriff's Officer, stated: [5] "6. The Custodial Area includes the cell areas and is considered to be 'occupied' by JJ, CSNSW or the Police whenever they have brought a detainee/inmate/person in custody to court. It is then their area and Sheriff's Officers play no role with what happens in that area." 1. Mr Hancock, who has more than 29 years' service with the Sheriff's Office stated: [6] "5. While CSNSW and JJs have inmates or detainees in court, the cell area is their sole jurisdiction. They are responsible for that area and Sheriff's Officers have no role to play." 1. I digress to observe that Mr Browne and the witnesses he called described the Practice as a "custom and practice". The Department challenged the existence of such a custom and practice having regard to the principles outlined in Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Pty Ltd (1986) 160 CLR 226. I do not consider that Mr Browne was contending that the Practice was a "custom and practice" within the meaning considered by the High Court in that case. It is not necessary to explore that aspect of the Department's case. 2. To provide context to Mr Browne's contentions, the evidence disclosed that the courts in which Sheriff's Officers work generally fall into one of two categories: 1. larger centres which have separate cell areas (including designated control rooms for screening and monitoring, and amenities for those areas) that are permanently operated and under the control of Corrective Services New South Wales ("CSNSW"). They include separate secure parking areas for correctional vehicles. At those centres, Sheriff's Officers are not involved in the operation of the correctional area; and 2. smaller, often regional, court premises where there may be a small cell area, but no permanent presence of CSNSW. 1. Of the courts in which Mr Browne worked, Campbelltown Court House, Downing Centre Local Court, Parramatta Court House and Wollongong Court House are in the first category. Taree Local Court, at which Mr Browne was stationed for 15 months, and the Nowra Court House are each in the second category. The majority of Mr Browne's service as a Sheriff's Officer was in courts in the first category. 2. In that context, it is not surprising that Mr Browne might have received training to the effect that as a Sheriff's Officer he had no responsibility for the custodial areas at Campbelltown Court House. In any event, his evidence in this regard was not challenged. 3. Under cross-examination Mr Jakovski, who disputed the existence of the Practice, nevertheless accepted that given Mr Browne's experience he would have been used to deferring to custodial officers in the management of custodial areas. 4. In her oral testimony Ms Hall stated that "there are 170 court locations across the State. Each one of them has a different set up in relation to custodies". [7] She further stated that "every location has different practices, due to the different nature of the make up of the building. No two court buildings are the same". [8] 5. Perhaps more tellingly, even though she also disputed the existence of the Practice, Ms Hall allowed for the possibility that Mr Browne had "confused the arrangements for a large court centre with a gazetted custodial operation with the shared cell arrangement that exists at Nowra and other regional courts". [9] 6. Support for the existence of the Practice is found in Mr Browne's evidence that the usual practice at the Nowra Court House was for Juvenile Justice officers accompanying detainees to enter and exit the external side door near the cell on their own, using their own access swipe cards. It was only that the Juvenile Justice Youth Workers who attended on 23 August 2018 did not have a swipe card with them that Mr Browne was required to grant them access to the building. 7. Against this, the Department contended that the Practice was a recent invention, noting that the first time it had been raised by Mr Browne was in his submissions of 30 August 2019, referred to at [31] above. I am also mindful that under cross-examination there was some, arguably self-serving, movement in Mr Browne's evidence as to what constituted the "cell area". Further, Nowra Court House is not in that category of courts at which Sheriff's Officers have no responsibility for custodial areas. 8. Having regard to all of the evidence, on balance I am prepared to accept, as the Sheriff herself conceded was possible, that Mr Browne may have been confused in believing that the Practice applied at Nowra. 9. However, the matter does not end there. Mr Jakovski stated that even if it were accepted that the Practice exists (which he disputed), it would be contrary to the requirement of Sheriff's Officers to maintain court security, as an open external door allowed anybody to enter or exit the court premises. The external door provided access not just to the cell area but to shared access areas of the internal court building. While he allowed for the possibility of confusion as to the division of responsibilities between custodial officers and a Sheriff's Officer, Mr Jakovski deposed that at the very least Mr Browne should have made enquiries of the Juvenile Justice officers as to why the door was open and to take appropriate steps to otherwise secure the court premises. 10. Mr Lia similarly deposed that leaving the external door open was a risk and that had he been in that situation he would have taken steps to mitigate that risk. He suggested, however, that looking out of the open door into the car park was part of Mr Browne's risk assessment. 11. In his submissions, Mr Browne contended that the risk of unauthorised entry was "wholly theoretical" and a "purely hypothetical construct". He relied on the fact that the external door opened out to a car park area secured by a fence about two metres high, which was monitored by several security cameras and access to which was blocked by a secured gate. 12. The submissions are not compelling. In the first place, the distinction between "theoretical" and "hypothetical" risks on the one hand and, presumably, "actual" risks on the other misapprehends risk management principles. Theoretical risks must be anticipated in order to avoid actual security and safety breaches. 13. In the second place, the submissions are inconsistent with the evidence. While the fence around the car park may be approximately two metres high, it did not prevent the detainee from escaping over it. There is no reason to suppose that a person determined to have access to the Nowra Court House could not find a way to scale the fence from the other side. 14. More importantly, Mr Browne's evidence suggests that the security of the car park was compromised. He stated that he returned to the open door to look into the car park to ensure that the security gate had closed "as we've had problems with that gate in the past closing properly" [10] and that the door had "been known to play up". [11] 15. There is no evidence that Mr Browne knew how long the detainee was likely to remain in court. He had no way of knowing who might come and go from the secure car park during that time. There is no evidence that there was any remote monitoring of the entry to the cell area at the relevant times that would have alerted Mr Browne or Joshua Hall to the possibility of unauthorised access to the court premises. 16. Another contention raised by Mr Browne was that the Department had "impermissibly departed" from the Allegations by introducing in these proceedings the notion that there was a relevant "risk of unauthorised entry" into the court complex. It was said that Allegation 1 does not assert that Mr Browne's actions resulted in, or took place in connection with, any such risk. 17. I do not accept these submissions. Allegation 1 refers to Mr Browne "failing to assure the security of the court" and "failing to secure an external entry/exit door into the court complex". While the Allegation refers to a particular consequence of that failure – namely, the escape of the detainee – that does not preclude the existence of other risks, such as unauthorised entry. 18. There is one final matter to address in relation to Mr Browne's failure to secure the door. The evidence disclosed the following: 1. There was no mechanism attached to the door to ensure that it closed automatically. Indeed, on the day of the incident Ms Frost suggested urgent work orders to "put a door closer on this external door to ensure it closes behind every time". [12] 2. The door was supposed to be fitted with an alarm which made it "beep" when it did not close properly. It appears not to have emitted that sound on 23 August 2018. This was a further matter that Ms Frost sought to have attended to. 3. The Sheriff deposed as follows: [13] "17. …Both the external door and internal door of the custody area when open for an extended duration would have prompted a Cardax alarm on the system. To resolve the alarm, the doors would had to have been secured. By not securing the doors the system would remain in alarm." However, there is no evidence that the open door did in fact trip a Cardax alarm on the system. 1. These matters raise, at least to a degree, the suggestion that controls which should have been in place to ensure that the external door could not be left open were not in fact in place. Mr Browne's conduct – and the extent of his own culpability – needs to be viewed in this context. 2. Mr Browne conceded that the Practice did not absolve him of any responsibility when custodial officers are on site. Even accepting that he was acting on the genuine but mistaken belief that the Practice applied to the Nowra Court House, he singularly failed to ensure the security of the court premises on 23 August 2018. 3. It is abundantly clear that an approach to court security which allows for an external door to be left wide open, allowing access to the shared areas of the court house, including the courtroom, compromises the security of the building and the safety of participants in the judicial system. Mr Browne's reliance on his short look into what he repeatedly described as a "secure" car park was insufficient to discharge his responsibilities, particularly when on his own evidence the security of the car park could not be taken for granted. 4. It is relevant also to have regard to the fact that the detainee would not have escaped, and gone on to commit further offences, had the door been closed. In saying this I recognise that the Juvenile Justice officers may not have properly secured the detainee, and that their description of events on 23 August 2018 does not entirely reconcile with the CCTV footage. 5. Allegation 1 is sustained. Allegation 2 – Dishonesty in reporting 1. Allegation 2 relates to Mr Browne's reporting of the incident on 23 August 2018. The Department contended that this encompassed the SIR he completed on 24 August 2018 and the verbal reports that he allegedly provided to Ms Frost, Mr Wademan and Mr Gordon on 23 and 24 August 2018. 2. At the outset, it is necessary to clarify precisely what is alleged against Mr Browne. The Department placed reliance on the use of "and/or" in Allegation 2 to argue that the allegation would be satisfied were the Commission to find that Mr Browne had failed to make "a full, accurate…record". In other words, a finding of dishonesty was not necessary in order for Allegation 2 to be sustained. 3. While this is semantically correct, it is not the case that was brought against Mr Browne. The Complaint, which commenced the investigation against him, stated that he had "actively omitted information from the incident reporting, as well as appearing to actively lie": see [25] above. The investigation proceeded on the basis that he had been deliberately dishonest and, it must be said, underpinned the case presented by the Department in these proceedings. Although I will come to it later, Allegation 3 can only be sustained if Mr Browne was dishonest. 4. In relation to Allegation 2 the Department submitted: "88. The SIR submitted by the Appellant on 24 August 2018 omitted a number of details which would have been of value in allowing the Respondent a proper understanding of the event, including failure to record that he had: a. returned to the Cell Area external door to determine if anybody else was to enter and that the car park door was closed, but instead stated that having looked for light switches he 'immediately' returned to his office; b. known the Cell Area external door was open at a time of close proximity to the escape, but relied on the claimed custom and practice not to close it; c. viewed the court's CCTV footage; and d. been told by police of intelligence about the detainee being an escape risk. 89. On any reasonable assessment these were significant matters of background relevant to investigation of the incident, and should have been reported by the Appellant. The significant nature of the omissions means that the SIR was less than full and accurate by leaving out relevant information. But the omissions should be accepted as active decisions by the Appellant, and as such dishonest in that the reports were false and/or misleading as to the extent of the Appellant's involvement in the events, and his knowledge or understanding of how the detainee may have been able to escape." (Emphasis added, footnote omitted) 1. Under cross-examination Mr Gordon stated that the "lie" to which he referred in the Complaint was that Mr Browne had created the impression that the external door had been secured. He criticised Mr Browne for not stating in the SIR that he had returned to the cell area, had seen that the door was open and had looked out the door. 2. However, in Mr Gordon's statement of 12 March 2020 he accepted that Mr Browne admitted the possibility, if not probability, that the door was not secured. Mr Gordon also conceded under cross-examination that on the basis of the CCTV footage (which he had viewed) it would have been apparent to Mr Browne that the external door was open. Mr Gordon accepted that Mr Browne did not attempt to conceal the fact that the door was open and, further, that Mr Browne told him that he did not know whether the door was secured at the precise time at which the detainee escaped. 3. The Complaint made reference to statements that Mr Browne was said to have made to Ms Frost, Mr Wademan and Ms Hall. In relation to Ms Frost, the Complaint seems to draw from an email sent by Ms Frost to a number of recipients on 23 August 2018 titled "URGENT Juvenile Escape from Nowra". [14] In that email, Ms Frost recorded that Mr Browne had told her that he was not sure the door was open at the time of the escape because it was not apparent to him the external door had not closed properly when the Juvenile Justice officers entered the court building until he had reviewed CCTV footage after the incident, and that the door had not been beeping. Mr Browne testified that he told Ms Frost he did not know if the door was open at the time when the detainee escaped because he was unable to view the footage of the door. He also said that he had told Ms Frost that he could not recall whether the door was beeping or not. 4. Ms Frost was not called to give evidence. To the extent that the email is relied on as evidence of what Mr Browne said to Ms Frost it must be approached with caution. 5. Mr Wademan was similarly not called to give evidence. The basis on which Mr Gordon is able to describe the substance of a conversation between Mr Browne and Mr Wademan is unclear. 6. To the extent that the Complaint asserted that Mr Browne had also provided a dishonest or incomplete verbal report to Ms Hall, it is simply false. It was common ground that Mr Browne had no conversation with the Sheriff about the escape. 7. Mr Browne denied that he had made a deliberate or conscious decision to hide the fact that he had looked out the open door. Under cross-examination he accepted, though, that the escape of the detainee was a significant event and that in order to understand what had occurred and to assist in developing strategies to prevent recurrence, full and complete information was required. He also accepted that for the purposes of understanding how the detainee had been able to escape custody, the fact of the open door was quite a material and relevant piece of information. However, he attempted to qualify this by asserting that it was relevant "at the time when the juvenile escaped". [15] 8. Mr Browne came to rely heavily on his awareness of the state of the door at the precise time of the detainee's escape. He submitted that: [16] "Thus, the impression objectively conveyed by Mr [Browne] through his report, the CCTV footage and his conversations with Gordon, Frost and Wademan was that the door was unsecured after he re-entered the cell area, but that he was not in a position to say whether the door was open or closed at the time of the detainee's escape. This was true." 1. Frankly, the suggestion that on 23 and 24 August 2018 Mr Browne sought to draw a distinction between his knowledge as to the state of the external door at the precise time the detainee escaped and what he had previously observed does not bear scrutiny. It was patently obvious that the door was open at the time the detainee escaped. That much he and everybody else knew. Otherwise, as Mr Brotherson rather evocatively put it, "the detainee would've run smack into a closed door". [17] 2. Further, the door had been open less than five minutes earlier when Mr Browne looked out of it into the car park and subsequently left the cell area. To suggest that there might have been a material change in the state of the door would require the acceptance that it might have closed and then somehow been re-opened prior to the detainee's escape. This is simply implausible. 3. Finally, the CCTV footage showed that nobody entered the cell area between Mr Browne leaving it and the detainee escaping. Joshua Hall stated that when he and Mr Browne collated the extracts from the CCTV footage, they watched the footage for each camera for the entire period from the arrival of the detainee to his escape. I accept this as more plausible than Mr Browne's evidence that they did not watch the full footage for each camera but jumped from one camera to the next as they followed the movements of the relevant individuals. 4. It follows that there is no reason for Mr Browne to have formed the view that the state of the door might have changed since he looked out of it. Again, the detainee would not have escaped otherwise. 5. Overall, I am inclined to the view that Mr Browne was less than forthcoming in his reporting of the incident. He did not volunteer the information that he was aware that the external door was open and had left it in that state just minutes before the detainee escaped. 6. At the same time, the evidence does not support a conclusion that he actively sought to conceal that fact or that he "actively lied". Starting from the uncontroverted proposition that the door was open when the detainee escaped, the SIR, Mr Browne's verbal "reports" and the CCTV footage allow for a conclusion to be drawn that Mr Browne must have been aware that the door was open. His default lay in requiring others to draw the necessary conclusions from the evidence, rather than volunteering his role in the incident and his possible contribution to the detainee's escape. 7. On this basis, I am satisfied that Mr Browne failed to provide a full, accurate and honest record of the events of 23 August 2018. To that extent Allegation 2 is sustained. 8. Before moving on, it is necessary to address briefly a contention raised by Mr Browne that in respect of Allegation 2 (and 3) the Department impermissibly added a further ground of misconduct, namely, that Mr Browne had colluded with Joshua Hall to hide or fail to provide the footage from a particular camera that would have shown Mr Browne passing the cell door on his way toward the open external door. I leave open the question as to whether such an allegation would necessarily be "impermissible", having regard to the analysis in Marroun. However, it is the case that the allegation was not put to Mr Browne in cross-examination. I find in any event that it has not been sustained on the evidence. Allegation 3 – Corrupt conduct 1. In relation to Allegation 3 the Department submitted: "99. The Appellant's reporting was dishonest. It was false by not disclosing relevant background, and misleading by limiting or diverging the Respondent's attention from his involvement in and knowledge of the matter. A Sheriff's Officer is a public official, and dishonest (false and/or misleading) reporting meets the definition of corrupt conduct in s 8 of the ICAC Act as referred to in s 9.3 of the Code." 1. Allegation 3 alleges that Mr Browne "breached" cl 9.3 of the Code of Ethics "by engaging in corrupt conduct in the discharge of [his] duties…through the provision of false and/or misleading statements to the Department and/or external authorities". It is difficult to see, however, how cl 9.3 can be "breached" in a relevant sense. It does not itself impose any obligations on employees, but rather defines what is meant by corrupt conduct. It is in these terms: "9.3 Corrupt conduct Corrupt conduct is more particularly defined in sections 7, 8 and 9 of the Independent Commission Against Corruption Act 1988 and includes the conduct of any person whether or not a public official that could adversely affect the exercise of an official function including conspiring or attempting to commit corrupt conduct. For further information please refer to the NSW ICAC's website." 1. To the extent that Allegation 3 is to be read as suggesting a breach by Mr Browne of the Independent Commission Against Corruption Act 1988 (NSW) ("ICAC Act") it is necessary to proceed with caution. Section 8 of the ICAC Act is in these terms: 8 General nature of corrupt conduct (1) Corrupt conduct is— (a) any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official, any group or body of public officials or any public authority, or (b) any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions, or (c) any conduct of a public official or former public official that constitutes or involves a breach of public trust, or (d) any conduct of a public official or former public official that involves the misuse of information or material that he or she has acquired in the course of his or her official functions, whether or not for his or her benefit or for the benefit of any other person. (2) Corrupt conduct is also any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official, any group or body of public officials or any public authority and which could involve any of the following matters— (a) official misconduct (including breach of trust, fraud in office, nonfeasance, misfeasance, malfeasance, oppression, extortion or imposition), (b) bribery, (c) blackmail, (d) obtaining or offering secret commissions, (e) fraud, (f) theft, (g) perverting the course of justice, (h) embezzlement, (i) election bribery, (j) election funding offences, (k) election fraud, (l) treating, (m) tax evasion, (n) revenue evasion, (o) currency violations, (p) illegal drug dealings, (q) illegal gambling, (r) obtaining financial benefit by vice engaged in by others, (s) bankruptcy and company violations, (t) harbouring criminals, (u) forgery, (v) treason or other offences against the Sovereign, (w) homicide or violence, (x) matters of the same or a similar nature to any listed above, (y) any conspiracy or attempt in relation to any of the above. (2A) Corrupt conduct is also any conduct of any person (whether or not a public official) that impairs, or that could impair, public confidence in public administration and which could involve any of the following matters— (a) collusive tendering, (b) fraud in relation to applications for licences, permits or other authorities under legislation designed to protect health and safety or the environment or designed to facilitate the management and commercial exploitation of resources, (c) dishonestly obtaining or assisting in obtaining, or dishonestly benefiting from, the payment or application of public funds for private advantage or the disposition of public assets for private advantage, (d) defrauding the public revenue, (e) fraudulently obtaining or retaining employment or appointment as a public official. … 1. Conceivably, it might be argued that Mr Browne engaged in conduct that "involves the dishonest or partial exercise of any of his…official functions", as referred to in s 8(1)(b). Even so, I received no assistance from the Department as to whether meeting that element of the is sufficient to make out a breach of the ICAC Act, particularly when Mr Browne's conduct – as I have found it to be – is viewed in light of the totality of behaviours described in s 8. 2. An allegation of corrupt conduct within the meaning of the ICAC Act is serious, and the weight of the onus on the Department is consequentially a heavy one. I am not satisfied that the Department has properly discharged its onus in respect of Allegation 3. Allegations 4 and 5 – Consequential breaches 1. In light of my findings in respect of Allegation 1 and Allegation 2, I am satisfied that the Department has made out its case that Allegations 4 and 5 should be sustained. 2. In respect of Allegation 4 Mr Browne's conduct was in breach of the provisions of cl 6 of the Code of Ethics reproduced at [15] above. I accept that in the circumstances such a breach jeopardised the operations and reputation of the Department and the Office of the Sheriff. 3. In relation to Allegation 5, Mr Browne's behaviour fell within the definition of "misconduct" in s 69(1)(a) of the GSE Act, being conduct in "contravention of this Act". I note in this regard the provisions of s 7 of the GSE Act reproduced at [14] above. Procedural fairness concerns 1. As already stated, the investigation was commenced by Mr Gordon completing and submitting the Complaint. I have earlier identified two concerns in relation to the Complaint, namely: 1. the "lie" to which Mr Gordon referred in the Complaint was that Mr Browne had created the impression that the external door had been secured. However, Mr Gordon accepted under cross-examination that Mr Browne did not attempt to conceal the fact that the door was open and accepted that Mr Browne told him that he did not know whether the door was secured at the precise time at which the detainee escaped; and 2. the Complaint was simply wrong in asserting that Mr Browne had made false or misleading comments to the Sheriff. 1. Of potentially greater concern is Mr Gordon's assertion in the Complaint that Mr Browne "actively omitted information from incident reporting, as well as appearing to actively lie". Under cross-examination Mr Gordon stated that at the time he prepared the Complaint he had "not consciously decided whether [Mr Browne] was lying to me or not". [18] Yet the investigation from that point was premised on precisely that allegation. 2. The Complaint was referred to Mr Ford. He deposed that he did nothing to verify the contents of the Complaint other than to view the available CCTV footage. He made no other inquiries or investigations before referring the matter to Ms D'Elia. 3. Mr Ford also had a role in preparing the letter of 31 May 2019 in which Mr Browne was informed of the Allegations: see [26] above. Somewhat inconsistently with the case being put by the Department, Mr Ford deposed that his understanding, up to the point at which he signed his statement in these proceedings on 27 November 2019, was that "Mr Browne had failed on 23 August 2018 in his duties for court security, and that the incident report he had completed that same day following the escape of the detainee was inadequate". [19] If this was indeed his view, it is not reflected in the Allegations that were put to Ms D'Elia for approval. 4. Mr Ford also prepared the Stage 2 Document referred to at [29] above. He accepted under cross-examination that the purpose of the document was to guide Ms D'Elia to make a decision as to whether or not to find that the alleged misconduct had been made out. Two observations need to be made about the Stage 2 Document. 5. Firstly, in purporting to reflect Mr Browne's submissions on an allegation-by- allegation basis, Mr Ford quoted only the point form response that had been provided in the letter from Mr Browne's solicitor on 29 July 2019, referred to at [28] above. Mr Ford did not attempt to include the more fulsome explanation of events that Mr Browne had provided in the statement that was attached to that letter. 6. Secondly, Mr Ford asserted in the Stage 2 Document that Mr Browne's statement did "not adequately describe his movements at the rear door". However, under cross-examination Mr Ford accepted that they did. Mr Browne's description of the events in that statement is also supported by the CCTV footage that Mr Ford claimed to have viewed. 7. All of these matters lead to doubts as to whether Ms D'Elia was provided with adequate and balanced information prior to her being asked to make the Decision. To my mind, Ms D'Elia was provided with an incomplete and selective account which was unfairly slanted towards Mr Browne's guilt. 8. For these reasons, I find that the process that culminated in the Decision denied Mr Browne procedural fairness. Alleged criminal conduct 1. There is a final and troubling aspect to the case that must be addressed. Ms Hall deposed that she could "come to no other conclusion" than that Mr Browne left the external door open as "a deliberate act by him to aid an escape". [20] This is a breathtakingly serious allegation. As Mr Browne submitted, the Sheriff accuses him of committing a criminal offence under s 310C of the Crimes Act 1900 (NSW), which is an offence punishable by a maximum penalty of imprisonment for seven years. 2. When challenged in cross-examination, Ms Hall did not resile from her position. Rather, to use the term adopted by Mr Chin, she "doubled down" to the point where she expressed the strong view that Mr Browne had in fact committed the offence. However, she had taken no steps to report the alleged offence to the police. 3. There is no evidence before me that would support the Sheriff's allegation. In any event, having made the allegation, the Department seemed to suggest that I could simply disregard it. Mr Brotherson submitted that it was not part of the Department's case that a crime had been committed or needs to have been committed for the misconduct to be established. Given this position, it is impossible to fathom why a forensic decision was made to include such a serious allegation in the Department's evidence in chief. 4. In all of the circumstances, the allegation was irresponsible and an apparently gratuitous slur on Mr Browne's character. It should never have been made. 5. Which leads me to comment that I have found it difficult to comprehend why the Department apparently assumed the worst of Mr Browne from the outset – that is, that he would actively and deliberately have lied, and indeed engaged in criminal conduct. None of the evidence explains why the Department took such a dim view of a long-standing employee with an apparently unblemished record of service. Conclusions – misconduct 1. I have found Allegation 1 to be sustained. Mr Browne's conduct in leaving open the external door to the cell area was a significant breach of his responsibilities. In circumstances where he was aware that the security of the car park may have been compromised, his behaviour created a significant risk to the security of the court premises and the safety of participants in the judicial system. It also at least contributed to the detainee being able to abscond. 2. Against these considerations I have regard to the fact that Mr Browne may have been confused in thinking that the Practice, which applied to the larger court complexes in which he had worked for the majority of his time as a Sheriff's Officer, applied equally to Nowra. I am also mindful that controls that should have been in place to ensure that the door closed was closed may not in fact have been in operation. 3. In the Complaint, Mr Browne's behaviour was described as constituting "negligence". In appropriate circumstances, negligence in the performance of a person's duty can constitute misconduct. 4. In Pillai v Messiter [No 2] (1989) 16 NSWLR 197 the Court of Appeal considered the meaning of the phrase "misconduct in a professional sense" as it appeared in the Medical Practitioners Act 1938 (NSW). Kirby P (as he then was) observed (at 200): "The words used in the statutory test (misconduct in a professional respect) plainly go beyond that negligence which would found a claim against a medical practitioner for damages: Re Anderson . On the other hand gross negligence might amount to relevant misconduct, particularly if accompanied by indifference to, or lack of concern for, the welfare of the patient: cf Re Anderson . Departures from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct: ibid. But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner: cf Allinson." 1. The approach taken by Kirby P in Pillai was cited with approval by Daubney J in Mathieu v Higgins & Anor [2008] QSC 209, although his Honour observed correctly, with respect, that "caution should be exercised when applying the meaning given to a word in a particular legislative framework to that word in other contexts" (at [21]). 2. Being mindful of Daubney J's cautionary note, I find the approach of Kirby P instructive as to whether negligence might constitute "misconduct" for the purposes of s 69 of the GSE Act. In the present case, I am satisfied that Mr Browne's negligence amounted to misconduct. 3. In respect of Allegation 2, I have found that while Mr Browne did not "actively lie", his reporting of the incident – verbal and written – was less than fully frank. His reports seem to have been designed not to draw attention to the part he may have played in the escape. I am satisfied that this constitutes misconduct, particularly having regard to the fact that Mr Browne held the rank of Sergeant and was the OIC of the Nowra Court House with supervisory responsibilities. 4. The findings in respect of Allegations 4 and 5 also, by extension, amount to misconduct. However, Mr Brotherson described these as "consequential allegations". [21] Ms Hall described Allegation 4 as "just standard". [22] The consequences that should flow from a finding that Allegations 4 and 5 have been sustained will be considered in that context. Appropriate disciplinary action 1. Having found that Mr Browne engaged in misconduct within the meaning of s 69(1) of the GSE Act, it is necessary to consider whether the penalty imposed by the Department was warranted. 2. Mr Browne submitted as follows: "25. This is not a case where the appellant has a problematic track record of compliance with his obligations. Mr Browne was a very experienced Sheriff's Officer with an unblemished and impeccable record of fulfilling the requirements of his duties. He takes his duties as a Sheriff's Officer very seriously. … … 47. Mr Browne is now 49 years of age and has no other training or qualifications to fall back on. His professional skills are largely limited to those that he exercised whilst employed as a Sheriff's Officer. He has 4 young children, a wife who works part-time, and a substantial mortgage on his home. He has already suffered a workplace injury arising from the disciplinary process which was accepted as compensable under the workers' compensation legislation." 1. In Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at 233 Watson J observed: "In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence." 1. Having regard to all of the evidence and submissions I am not satisfied that Mr Browne's dismissal was warranted. Having particular regard to Mr Browne's length of service and his employment record, I consider it to have been "too harsh a consequence" for his misconduct. 2. Mr Browne submitted that the Commission should set aside the Decision and reinstate him to his position with consequential orders for continuity of service and back pay. If the Commission was minded to impose a penalty he submitted that it should be confined to a caution or reprimand. 3. The Department obviously contended that the appeal should be disallowed and the Decision be permitted to stand. By way of alternative submission it argued as follows: "115. If the Commission does not disallow the appeal, it should not allow the appeal, but make another decision which does not involve the Appellant being reinstated to his former role or any other role at Nowra, or any role elsewhere at the rank of Sergeant or as an OIC." 1. I am persuaded, at least in part, by the Department's alternative submission. I accept that Mr Browne should be reduced in his classification. However, no evidence was led as to the desirability or otherwise of Mr Browne remaining at Nowra, or as to any other courts to which Mr Browne might be redeployed. Accordingly, I do not consider it appropriate in the circumstances to make any order regarding the location from which Mr Browne may, or may not, work. Orders and directions 1. I order that: 1. the decision of the Department to terminate Mr Browne's employment (after giving him an opportunity to resign) is quashed, and in its place Mr Browne is to be reduced to the classification of Sheriff's Officer under the Crown Employees (Sheriff's Officers) Award ("Award"); 2. the Department is to restore Mr Browne to employment, in the classification of Sheriff's Officer under the Award; 3. the Department is to pay Mr Browne an amount equal to the rate of pay he would have received in the classification of Sheriff's Officer under the Award from 16 September 2019 until order (2) is put into effect, less any amounts paid to Mr Browne as the consequence of him tendering his resignation on 16 September 2019; 4. orders (2) and (3) take effect from Monday, 21 September 2020; and 5. Mr Browne's service is to be taken as having not been broken by virtue of his dismissal and the period between then and his re-employment pursuant to orders (2) and (4). 1. I direct that: 1. the parties confer as to the location at which Mr Browne will work; 2. the parties have liberty to apply on reasonable notice in the event that the Commission's further assistance is required to resolve any dispute or difficulty regarding Mr Browne's work location; and 3. the file be closed on 2 October 2020 unless Mr Browne seeks before that time to have the matter re-listed or requests an extension of time. Damian Sloan Commissioner ********** Endnotes 1. Statement, David Browne, 3 March 2020 at par 62. 2. ibid., at par 63 3. On 1 July 2019 Juvenile Justice became Youth Justice NSW as part of machinery of government changes. However, as the parties referred throughout their evidence and submissions to "Juvenile Justice" I have maintained that reference to avoid confusion. 4. Statement, David Browne, 3 March 2020 5. Statement, Edward Lia, 28 February 2020 6. Statement, Stephen Hancock, 7 February 2020 7. Tcpt, 29 April 2020, p 55(36-37) 8. ibid., p 67(14-15) 9. Statement, Tracey Hall, 11 March 2020 at par 5 10. Tcpt, 1 May 2020, p 39(31) 11. ibid., p 41(11) 12. Exhibit R10 13. Statement, Tracy Hall, 11 March 2020 14. This email comprises part of Exhibit R10 15. Tcpt, 1 May 2020, p 37(41) 16. Appellant's Final Written Submissions at par 42(h) 17. Tcpt, 1 May 2020, p 48(9-10) 18. Tcpt, 30 April 2020, p 28(29-30) 19. Statement, Noel Ford, 27 November 2019 at par 9 20. Statement, Tracey Hall, 29 November 2019 at par 22 21. Tcpt, 1 May 2020, p 73(11) and p 82(28-29) 22. Tcpt, 29 April 2020, p 68(41) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 September 2020