Industrial Relations Commission New South Wales Medium Neutral Citation: Sparkes v Industrial Relations Secretary in respect of the Department of Communities and Justice (Corrective Services NSW) [2022] NSWIRComm 1021 Hearing dates: 10 and 11 November 2021, final submissions received 9 February 2022 Date of orders: 31 March 2022 Decision date: 31 March 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The Appeal is dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Public sector disciplinary appeal – Dismissal – employee in extra-marital relationship with subordinate employee – findings of guilt of common assault by the employee against co-worker – misconduct admitted – question of appropriate disciplinary action – whether assault to be mitigated by the context of the alleged sexual relationship between employee and co-worker – whether employee denied procedural fairness – relevance that misconduct occurred outside work and did not affect employee's work performance Legislation Cited: Crimes Act 1900 s 61 Crimes (Domestic and Personal Violence) Act 2007 s 13 Crimes (Sentencing Procedure) Act 1999 s 9 Government Sector Employment Act 2013 ss 7, 69 Government Sector Employment (General) Rules 2014 rr 38, 40 Industrial Relations Act 1996 Ch 2 Pt 7, ss 100C, 164A Cases Cited: Dr A and Health District [2014] NSWIRComm 28 Eastwood v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Corrective Services NSW) [2021] NSWIRComm 1014 Harry Day v John Smidmore and others (No. 2) [2005] NSWIRComm 406 Jones v Dunkel (1959) 101 CLR 298 Marroun v State Transit Authority [2017] NSWCA 273 Texts Cited: Nil Category: Principal judgment Parties: Nathan Sparkes (Appellant) Industrial Relations Secretary (Respondent) Representation: Counsel: V Bulut (Respondent) Solicitors: M Jaloussis, McNally Jones Staff Lawyers (Appellant) Clayton Utz (Respondent) File Number(s): 2021/161559 Publication restriction: Pursuant to s 164A of the Industrial Relations Act 1996 (NSW), the Commission orders that: 1. there be no disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, [name redacted], [name redacted]'s children, Mr Sparkes' children, or any current or former inmate held in the custody of Corrective Services NSW; and 2. the doing of any other thing that identifies, or may lead to the identification of, any such person is prohibited. decision 1. Nathan Sparkes was employed as a Senior Correctional Officer with Corrective Services NSW ("CSNSW"). In September 2020 he pleaded guilty in the Local Court to two charges of common assault. In consequence, CSNSW imposed disciplinary action on him, which was to terminate his employment after giving him an opportunity to resign. Mr Sparkes appeals that decision pursuant to Ch 2 Pt 7 of the Industrial Relations Act 1996 ("IR Act"). Non-disclosure order 1. The person the subject of the assaults was [name redacted], a co-worker with whom Mr Sparkes was in an intimate personal relationship. [Name redacted] gave evidence in the proceedings. 2. Accompanying his Closing Submission, the Secretary sought an order pursuant to s 164A of the IR Act in these terms: "Pursuant to s 164A of the Industrial Relations Act 1996 (NSW), an order prohibiting or restricting: 1. the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, [name redacted], [name redacted]'s children, Mr Sparkes' children, or any current or former inmate held in the custody of Corrective Services NSW, or 2. the doing of any other thing that identifies, or may lead to the identification of, any such person." 1. The approach to the exercise of the Commission's power in s 164A was considered by the Full Bench in Dr A and Health District [2014] NSWIRComm 28. The Full Bench set out (at [46]) the authorities as to the making of non-disclosure orders on which the respondent in those proceedings relied, and summarised the principles which were said by the respondent in that case to be derived from them, as follows: "47. In referring to these authorities the main points sought to be made by the respondent were that: (1) the principle of open justice is a fundamental aspect of the legal system and the conduct of proceedings in public is an essential quality of an Australian court of justice: John Fairfax 2004 per Spigelman CJ at [18]-[21] (Handley JA & Campbell AJA agreeing); Rinehart at [32]; Fairfax Digital at [9]; (2) exceptions to the principle of open justice are strictly defined and applied sparingly: John Fairfax 2004 at [19], [21]; (3) the test in s 164A(3) of the IR Act is the common law test: Smidmore (No 2) at [29]; (4) according to the common law test mere embarrassment or distress is not sufficient to warrant the making of a non-disclosure order: Smidmore (No 2) at [19]; Buttling (No 2) at [26]; Non-disclosure orders, such as pseudonym orders, merely to protect persons from injury, hurt, embarrassment or distress would be inimical to the ordinary rule that courts should conduct their proceedings publicly and in open view: Smidmore (No 2) at [32]; Buttling (No 2) at [6]; (5) the 'necessary' requirement in s 164A(3)(b) of the IR Act reinforces the legislative intention that non-disclosure orders should only be made in exceptional circumstances: Buttling (No 2) at [8]." 1. At [48] the Full Bench accepted these principles as correct. 2. In his Closing Submissions the Secretary submitted: "40. In Harry Day v John Smidmore and others (No. 2) [2005] NSWIRComm 406, at [41], the Commission considered the following factors as being relevant to an order under s 164A: (a) that in addition to causing genuine distress, the allegations had the potential to harm the parties' careers and businesses; (b) that the distress being suffered was primarily from witnesses and persons who were not parties to the proceedings; (c) a degree of doubt as to whether some of the allegations could serve any legitimate forensic purpose; (d) that the witnesses in question were not public figures and there was little public interest in establishing their identity; (e) that the parties to the proceedings would not be prejudiced if the identities of the witnesses were suppressed; and (f) the common law's longstanding tradition of protecting a person's right to privacy. 41. The above principles apply in the present case in circumstances where: (a) the children and the inmates were not only not parties to these proceedings, but they were not even witnesses; (b) some of the detail surrounding the children and inmates is sensitive, including violence perpetrated on inmates and Apprehended Violence Orders made by a Court to protect [name redacted]'s children. Indeed, generally, the names of children in incidents involving children are prima facie suppressed: see [4] in Writer v Commissioner of Police (No 2) [2021] NSWIRComm 1023; (c) [Name redacted]'s mental health, including the medication she was taking, was adduced by the Appellant's solicitor in cross-examination (over objection). [Name redacted] has a right to privacy in this regard (see also Fire & Rescue NSW v Public Service Association of NSW and Professional Officers Association of NSW Amalgamated Union [2018] NSWIRComm 1066); (d) [Name redacted]'s evidence, in cross-examination, was clearly distressing for her. [Name redacted] is, of course, not a party to these proceedings; (e) There are good public policy considerations as to why the Commission ought to protect the identity of domestic violence victims, unless they wish to have their identity disclosed, see, for example, Pace v Commissioner of Police [2020] NSWIRComm 1005, Flynn v Commissioner of Police [2019] NSWIRComm 1030 and Jackson v Commissioner of Police [2019] NSWIRComm 1033; (f) the persons in question were not and are not public figures and there was little public interest in establishing their identity; and (g) the parties to the proceedings would not be prejudiced if the identities of the persons were suppressed." 1. Through correspondence received from his solicitor on 17 March 2022, Mr Sparkes informed the Commission that he did not object to the making of the order sought by the Secretary. 2. Having regard to: 1. the principles set out in Dr A and Health District and in Harry Day v John Smidmore and others (No. 2) [2005] NSWIRComm 406, to which the Secretary referred; and 2. the matters identified by the Secretary at par 41 of his Closing Submissions, I am satisfied that it is necessary in the interests of justice to make a non-disclosure order in the terms sought by the Secretary. For this reason, [name redacted]'s name will be redacted from the published version of this decision. For convenience and ease of comprehension I have hereafter referred to her by the pseudonym "Ms Jones". Background Mr Sparkes' employment 1. Mr Sparkes commenced employment with CSNSW as a Probationary Correctional Officer in April 2011. He was confirmed as a Correctional Officer in May 2013. He was appointed to the rank of First Class Correctional Officer in May 2016 and to that of Senior Correctional Officer in May 2017. 2. Mr Sparkes was employed in the Public Service under the Government Sector Employment Act 2013 ("GSE Act"). Section 7 of the GSE Act sets out the "core values" of the government sector, which include to "act professionally with honesty", to "take responsibility for situations" and to "uphold the law". 3. In his employment, Mr Sparkes was obliged to conduct himself in accordance with a document titled "Code of Ethics and Conduct Policy" ("Code of Conduct"). It provided as follows: "4. What drives our conduct? The people of New South Wales have a right to expect Department of Justice employees to work with a high level of efficiency, fairness, impartiality and integrity. An employee's prime responsibility is to place the public interest above their own personal interests and to demonstrate the core values of the Public Sector and Department at all times: • Integrity • Trust • Service • Accountability • Respect In addition to demonstrating the core values of the Public Sector all employees should demonstrate values of ethical and honest behaviour; professionalism and responsibility; fairness and equity; learning and innovation; and collaboration. … 4.1 Who does the code apply to? The Code applies to all employees of the Department and Senior Executives. By accepting employment with the Department, employees must be aware of and comply with this Code. Therefore, employees must: • engage in personal and professional conduct that upholds the reputation of the Department; • apply the Department's policies, procedures and guidelines; • act ethically and responsibly; and • be accountable for actions and decisions made. … 4.4 Unlawful or criminal conduct Unlawful or criminal conduct at work or whilst off duty may also involve a breach of the Code and may constitute misconduct. Employees convicted of a serious offence/s may be liable to court imposed sanctions and may also be liable to misconduct 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. … … 7.1 Conduct while off duty As members of a public sector organisation all employees must, even when off duty, act in accordance with the law and the content of this code. In so doing employees must ensure that they do not bring discredit to themselves as private citizens or to the Department, and that they model exemplary behaviour and act as a positive influence in the community. Employees should be aware that unlawful or unprofessional conduct, even in a private capacity, which may damage, or has the potential to damage, the reputation of the Department, may constitute misconduct and attract action by the Department in accordance with section 69(4) of the Government Sector Employment Act 2013. … A conviction for a serious offence (or a finding of guilt that does not proceed to conviction) may constitute misconduct, whether or not the offence was committed in the course of employment." (Italics in original) 1. In 2016 Mr Sparkes received a Commissioner's Commendation for Bravery. 2. In late 2018 Mr Sparkes was found to have engaged in misconduct including the use of excessive force against inmates on two occasions in February 2018, failing to report the force used in the first instance and submitting a false and/or misleading report in respect of the second ("2018 Misconduct"). Mr Sparkes received a fine. Misconduct 1. In approximately November 2018 Mr Sparkes commenced a personal relationship with Ms Jones. It was for him an extra-marital relationship. 2. Ms Jones was also a Correctional Officer. At all relevant times, Mr Sparkes was Ms Jones' superior officer. 3. In November 2019 Mr Sparkes was arrested by police and charged with two counts of "common assault domestic violence related" under s 61 of the Crimes Act 1900. These related to alleged assaults on Ms Jones. Mr Sparkes was also charged with stalking and intimidation under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. 4. On 9 September 2020 Mr Sparkes pleaded guilty in the Local Court at Dubbo to the common assault charges in return for the prosecution withdrawing the stalking and intimidation charge. The facts agreed between the prosecution and Mr Sparkes ("Agreed Facts") were in the following terms: "Sequence 1 – Common Assault [1 January 2019 to 4 October 2019] [1] The victim is [Ms Jones]. The offender is Nathan Sparkes. [2] The victim and the offender know each other through their workplace. The victim and the offender started a relationship in November 2018 which ended in September 2019. This relationship was extra-marital for the offender. [3] Over the course of the relationship the offender would slap the body of the victim, ram his fingers into her body and pinch her. The offender did this to the victim on numerous times throughout the relationship and the slaps would leave red marks on her body. The victim would tell the offender to stop on each occasion. [4] On 3 May 2019, the victim and the offender exchanged the following messages. Victim: 'I am so sick of you hurting me physically, like poking me hard, slapping me and leaving handprints on me for no reason? Like the other day. It hurts.' Offender: 'Then leave [name] leave if im such a cunt. Do leave me and never speak to me again'…'As for physically hurting you. I am only playing with you and if you don't tell me at the time I don't know' Victim: 'I tell you every single time it hurts! Every single time. You literally leave red hand prints on my body. I am fed up with the way you treat and speak to me. I am fed up with being accused every single fucking day.' Offender: 'Sorry about the marks I am.' [5] On 10 May 2019 the victim and the offender exchanged the following messages. Offender: 'Are you saying that I physically hurt you?' Victim: 'I have told you numerous times you have physically hurt me!' Offender: 'By smacking you bum?' Victim: 'No by slapping me all the time, by ramming you finger into my stomach, I tell you every single time it hurts, and you still do it. You always slap me! On my stomach. You leave red hand prints on my body.' Offender: 'So that was mucking around and I am sorry you feel that way about that. You never have to worry about me anyways. Sorry. I think we should just go our separate ways. Friends wont work.' Sequence 2 – Common Assault [17 September 2019] [6] On 17 September 2019 the offender attended the victim's address at Macquarie Street, Dubbo. They were laying on the bed together. The accused slapped the victim on her stomach in the same manner as the victim previously told the accused not to. The slap caused the victim pain. [7] The accused then lent over and bit the victim on her left arm. The bite left a mark and some bruising." (Reproduced verbatim) 1. The charges were dealt with pursuant to s 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999, with Mr Sparkes found guilty but without proceeding to conviction, directed to enter into a Conditional Release Order for 12 months. An Apprehended Domestic Violence Order, for the protection of Ms Jones and her children, was also imposed for 12 months. I observe that there is no evidence that Mr Sparkes ever demonstrated violence towards Ms Jones' children. The process culminating in termination 1. On 6 May 2021 Craig Smith, the Custodial Director, Western Region for CSNSW, wrote a letter to Mr Sparkes. In his letter, Mr Smith: 1. referred to the findings of guilt on 9 September 2020; 2. stated that as Mr Sparkes had been found guilty of a serious offence within the meaning of s 69(1) of the GSE Act, Mr Smith had made "findings of misconduct" against him pursuant to r 40(1)(a) of the Government Sector Employment (General) Rules 2014; 3. informed Mr Sparkes that he was proposing to take disciplinary action against him pursuant to s 69(4) of the GSE Act, namely "termination of employment (with opportunity to resign within 7 days)"; and 4. invited Mr Sparkes to make "a written and/or oral" submission before a final decision was made. 1. On 19 May 2021 Mr Sparkes attended an interview with Mr Smith. He was accompanied by David Bartle of the Public Service Association. 2. By letter to Mr Sparkes dated 24 May 2021, Mr Smith confirmed that he had made a final decision to terminate Mr Sparkes' employment with an opportunity to resign within seven days ("Decision"). 3. Mr Sparkes tendered his resignation to Mr Smith via email sent on 28 May 2021. Applicable law and principles 1. In Eastwood v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Corrective Services NSW) [2021] NSWIRComm 1014 I made the following observations regarding the Commission's jurisdiction in matters such as the present one: "21. These proceedings are brought under Ch 2 Pt 7 of the IR Act. 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. 22. 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, it may consider post-decision events or conduct in determining whether some lesser form of disciplinary action was appropriate: at [62] and [63]. 1. Mr Sparkes' employment was terminated 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— … (d) a conviction or finding of guilt for a serious offence. The subject matter of any misconduct by an employee may relate to an incident or conduct that happened while the employee was not on duty or before his or her employment. serious offence means an offence punishable by imprisonment for life or for 12 months or more (including an offence committed outside New South Wales that would be an offence so punishable if committed in New South Wales). … (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. Mr Sparkes admitted that he had engaged in misconduct within the meaning of s 69(1). It was common ground that an offence under s 61 of the Crimes Act was a "serious offence" as defined. A finding of guilt in respect of such an offence was by definition "misconduct". 2. It follows that there is no need to consider the first of the two steps identified in Marroun v State Transit Authority [2017] NSWCA 273. The question for the Commission is to determine what disciplinary action is to be taken in consequence of Mr Sparkes' misconduct. Evidence available to the Commission 1. During the hearing, Mr Sparkes objected to the Secretary being able to rely on evidence before the Commission which was not before the original decision-maker (namely, Mr Smith). He contended that the effect of Marroun was that in "standing in the shoes of the decision-maker" the Commission was confined to considering only that evidence which was available to the decision-maker. I determined to allow the Secretary to adduce his evidence on the basis that I would hear from Mr Sparkes in his closing submissions as to the extent, if any, to which I could, let alone should have regard to evidence not before the original decision-maker. 2. In his closing submissions, Mr Sparkes did not seek to take further the objections raised during the hearing. I observe parenthetically that such objections would not have rested comfortably with him seeking to rely on evidence which he had adduced that was not before Mr Smith. In any event, I have proceeded on the basis that the objection is not pressed and that it is not necessary that I address it. The nature of the relationship between Mr Sparkes and Ms Jones 1. Mr Sparkes' case in large part rests on the proposition that his conduct must be seen in the context of a consensual sexual relationship, in which there was "a lot of sexual horseplay" [1] and in which Ms Jones "was into doing weird things in the bedroom". [2] In engaging in this behaviour, Mr Sparkes "probably went a bit too far" [3] and inadvertently crossed the line into assault. 2. Mr Sparkes drew my attention to a number of matters which were said to be consistent with the existence of nature of the relationship he described. In particular, he relied on the absence of any texts from Ms Jones to Mr Sparkes in which she told him to "stop" what he was doing. In only two texts – amongst a great many that were adduced into evidence – sent on 3 and 10 May 2019, did Ms Jones complain to Mr Sparkes that he had been hurting her. There was no evidence, it was said, that after those texts and prior to 17 September 2019 Mr Sparkes engaged in conduct to cause Ms Jones concern. Mr Sparkes submitted: [4] "The nonexistence of these 'stop' texts goes a long way towards supporting the Appellant's contention that [Ms Jones] never told him to stop at the time and that she had agreed with and joined in the sexual horseplay." (Footnote omitted) 1. In this vein, Mr Sparkes further submitted that "[i]t was at all times open for [Ms Jones] to leave the relationship" [5] and that Ms Jones' evidence "was that her complaints of intimidation and harassment were in the course of their relationship and yet she stayed in the relationship". [6] 2. Ms Jones denied having had a sexual relationship with Mr Sparkes of the kind he alleged and disputed his description of their sexual activities. She further stated: [7] "8. From around April 2019, Nathan started physically hurting me. He would slap my body, my legs and more so my stomach. He would slap me really hard when we were laying next to each other on the lounge. The slaps hurt me and left red marks. He would also ram his fingers into my body and pinch me. All of this hurt me. 9. The slapping and pinching was not playful. Nathan would do it out of anger. I say that because it happened when we were arguing or he was unhappy about something. …" 1. Ms Jones' reliability and credibility as a witness was challenged extensively under cross-examination and features prominently in Mr Sparkes' written submissions. In addition to the matters referred to at [30] above, Mr Sparkes drew attention to: 1. a text exchange between Ms Jones and Mr Sparkes on the evening of 17 September 2019, which was inconsistent in tone and content to the seriousness of the allegations subsequently made against Mr Sparkes. While it mentioned Ms Jones having bites on her neck, it made no mention of a bite to the arm or a slap on the stomach; 2. inconsistencies between Ms Jones' two statements to the police; 3. inconsistencies between what Ms Jones says happened on 17 September 2019 and how her best friend, Amy Rogers, recalled her describing the events to her, as set out in Ms Rogers' statement to the police. In particular, Ms Rogers stated that Ms Jones had told her that she and Mr Sparkes had been "mucking around with each other where Nathan took it too seriously"; and 4. the absence of any, or any adequate, evidence to corroborate Ms Jones' second statement to the police of 22 November 2019, in which she claimed to have "confronted" Mr Sparkes in relation to him biting her on 17 September 2019. 1. The Agreed Facts pose a significant hurdle for the case sought to be advanced by Mr Sparkes. Amongst other things, they amount to admissions by Mr Sparkes that over the course of his relationship with Ms Jones: 1. he would slap her body, ram his fingers into her body and pinch her; 2. this happened numerous times; and 3. on each occasion Ms Jones would tell him to stop. 1. These facts are inconsistent with Mr Sparkes' attempts to paint his behaviour as having become carried away in the heat of sexual horseplay. 2. In these proceedings, Mr Sparkes attempted to resile from the Agreed Facts. Under cross-examination he suggested that he had not read them in their entirety and suggested that he was not fully aware of their contents. I found this evidence half-hearted and unconvincing. 3. More particularly, under cross-examination Mr Sparkes stated "I don't recall her saying 'Stop' ever". [8] However, he later had the following exchange with Ms Bulut of counsel, who appeared for the Secretary: [9] "Q. You accept, don't you, that you told the Court, knowing how important it was to tell the truth to the Court, that you had slapped the body of [Ms Jones], rammed your fingers into her body and pinched her and that you had done - sorry, and the slaps would leave red marks on her body and that you had done this on numerous times throughout the relationship, correct? A. Correct. Q. And that [Ms Jones] would tell you to stop on each occasion, correct? A. Correct. Q. And that was the truth, correct? A. Yes. … Q. Okay, just to clarify your evidence there, Mr Sparkes, you just told me that you knew that it was very important that you tell the truth to the Court and that you would never have wanted to misrepresent the truth to the Court and make sure that the matter before the Court was accurate, but you're now telling us that you didn't read the document which has only seven paragraphs and is just longer than one page, that you didn't read that before it's presented to the Court? Is that your evidence? A. I did read it but I clearly didn't read it properly, I guess. Q. So is it the truth or is it not the truth that 'the victim would tell the offender to stop on each occasion'? A. Well, I pleaded guilty to the common assault charges, so. Q. So that's not an answer to my question, Mr Sparkes. My question is whether it's true or not that 'the victim would tell the offender to stop on each occasion'? A. Yes. Q. It is true. So your evidence to this Commission contrary to that was not true. It follows, doesn't it? A. Yes." 1. In spite of this testimony, Mr Sparkes submitted: [10] "Unfortunately, the Appellant did not realise (through his own fault) at the time that it was alleged in the Agreed Facts that [Ms Jones] (the victim) would tell him to 'stop' on each occasion. He does not now agree with this fact." 1. Further, the Agreed Facts describe what happened on 17 September 2019. Mr Sparkes was taken to that part of the Agreed Facts in cross-examination: [11] "Q. If we go on to over the page to the second page which deals with the second sequence, the events of 17 September, do you see that? A. Yes. Q. Can I get you to read those two paragraphs to yourself? A. Yep. Q. It's correct, isn't it, that you slapped [Ms Jones] on her stomach in the same manner as she'd previously told you not to and that slap caused pain to [Ms Jones]? A. Yes. Q. That's true, isn't it? A. Yes. Q. And that you had bit her on her left arm and that the bite had left a mark, being some bruising on her arm? A. Yes. Q. And you did this on 17 September 2019 after you got into an argument with [Ms Jones], isn't that right? A. I don't recall an argument but those things happened." 1. Again in the face of his own testimony, Mr Sparkes submitted: [12] "What occurred on 17 September 2019 is disputed by the Appellant, although he admits that he may have bitten [Ms Jones] on the arm during their sexual horseplay." 1. It does not reflect well on Mr Sparkes' credibility that he would seek to eschew the Agreed Facts. It is even more concerning that having accepted their truth in his oral testimony, albeit reluctantly, he would in his closing submissions revert to a position of asserting that the Agreed Facts are not accurate. 2. Mr Sparkes is also open to a similar criticism to that which he levelled at Ms Jones, in that there are concerns arising from the statement he provided to the police. For example, when speaking to the police Mr Sparkes did not seek to justify his conduct as having been the result of sexual horseplay having been taken too far; he referred to "tickle wrestles". Contrary to the Agreed Facts, he denied to the police that he had ever slapped Ms Jones, whether during sex or otherwise. He accepted under cross-examination that this was not a truthful statement to the police. Also contrary to the Agreed Facts, Mr Sparkes denied to the police that Ms Jones had ever said that he was hurting her, or that he physically hurt or bit Ms Jones on 17 September 2019. 3. It is also of significance that Mr Sparkes kept only one document that had been sent to him by Ms Jones, an email dated 6 April 2019. That was a long and somewhat rambling document in which Ms Jones made reference to her mental health problems, requiring medication and feeling suicidal at times. Mr Sparkes provided that document to the police. 4. The following exchange during Mr Sparkes' cross-examination regarding his police interview is telling: "Q. In those questions you wanted to press upon the police that [Ms Jones] takes medication, that you wanted to represent that she wasn't mentally stable or that her mental stability wasn't great, to put it more precisely, and that her anxiety is really bad and that because of her medication she thinks everything is always about her. Do you see that? A. Yes. Q. And the reason that you'd said those things to the police was because you wanted them not to believe her. That's fair to say, isn't it? A. Yes. Q. And you wanted them to believe that she was unstable? A. Yes. Q. Are you familiar with the term 'gaslighting'? A. No. … Q. So what you're relaying there to the police is that you don't have any emails or text messages between the two of you, subject to the one that I'll come to in a moment, because you delete them all so as to avoid leaving a trace of anything? A. Yes. Q. Is that right? And then you also say that she's very manipulative and a compulsive liar? A. Yes. Q. And that you think that you're not the only person that's gone through this? A. Yes. Q. Again, you were trying to press upon the police that [Ms Jones] shouldn't be believed and that she's perhaps done this before? A. Yes. Q. Is that right? Now in relation to the messages and text messages, sorry, emails and text messages you say you deleted, you tell the police that you've kept one. Is that right? A. I believe so, yes. Q. Can I get you please to turn to, in that same bundle, page 194? A. Yes. Q. So at the top of that page you'll see it's an email from you to an email address of the Police Force, do you see that? A. Yes. Q. On October the 5th, and it forwards the email to - that [Ms Jones] sent to you and if we go to that email, it's an email dated 6 April 2019, so some six months or so earlier or five months or so earlier? A. Yes. Q. Is that right? A. Yes. Q. And this is the email you were referring to during your interview, is that right? A. Yes. Q. And you describe this email during your interview as an email that talks about her being suicidal and 'pretty much how she hurt me and she loves me and all that sort of stuff', do you see that? A. Yes. Q. The reason you had kept this email but deleted every other email, seemingly, that exchanged between the two of you is because you wanted to have evidence of her confessions of love to you and her expressions of an apology and that she'd hurt you et cetera so that you could use this against her if required, isn't that right? A. Yes." 1. There are inconsistencies in the versions of events that Mr Sparkes has offered over time. The case that he is presenting now to the Commission is different to that which he told to the police. As already noted he was not entirely frank in his evidence before me, which he admitted in part. Given that this went to the very question as to whether the conduct in which he engaged was the product of a particular sexual relationship, or "context", this is a significant matter. He has also pressed closing submissions (see [38] and [40] above) that are not borne out by his own testimony. 2. The relationship between Ms Jones and Mr Sparkes was troubled and complicated. Mr Sparkes was in an extra-marital affair with a subordinate co-worker. Ms Jones described a relationship which started out as purely sexual, but which on her part developed into stronger feelings of love and commitment towards Mr Sparkes. For his part, Mr Sparkes maintains that it was only ever a sexual relationship, despite him having made protestations of love in numerous texts to Ms Jones. 3. Whatever the case, Ms Jones described a tumultuous relationship, which had its highs and lows. Over the course of the relationship Mr Sparkes became more controlling, intimidating and jealous as evidenced in text exchanges between them. In some of those messages Mr Sparkes used abusive and derogatory language towards Ms Jones. Throughout these travails, the relationship continued. 4. Within this broader context, it is to be expected that the messages sent between Mr Sparkes and Ms Jones during the relationship might disclose conflicting and contradictory messages, depending on the time at which they were sent. However, the fact that a message sent at one time conflicts with one sent at another simply reflects the turbulent relationship described by Ms Jones. The conflicts and contradictions are not themselves evidence that Ms Jones is an unreliable witness. 5. Also having regard to this context, I do not find the submissions at [31] above to be persuasive, and in fact I find them troubling. I do not place great weight on submissions that the veracity of a victim of domestic violence is to be impugned simply by virtue of remaining in an abusive relationship. 6. Further, however, Mr Sparkes admitted to the misconduct, both in the Agreed Facts and before me. Despite that, he seeks to challenge Ms Jones' credibility in describing precisely that conduct, on the basis that she could have walked away and did not. In the circumstances, those submissions lack integrity. 7. Having considered the matters raised by Mr Sparkes, having observed Ms Jones' demeanour in the witness box and having considered the matters put to her in cross-examination, but in the context of the evidence as a whole, I consider Ms Jones to be a witness of truth. I did not form the same impression of Mr Sparkes. It follows that if there is a conflict on the evidence, but in particular regarding the nature of the relationship between Mr Sparkes and Ms Jones, and Mr Sparkes' conduct within that relationship including the events of 17 September 2019, I prefer the evidence of Ms Jones. 8. For these reasons, I do not accept Mr Sparkes' evidence as to the nature of the sexual relationship he had with Ms Jones, or his descriptions of the types of sexual activities in which she liked to engage. The seriousness of his misconduct is not to be mitigated by any such "context", as he sought to contend. Jones v Dunkel submissions 1. It is convenient to deal here with submissions made by Mr Sparkes in his written closing submissions that the Commission ought to draw Jones v Dunkel [13] inferences against the Secretary as a result of his failure to call two Senior Assistant Superintendents, Matthew Pike and Wayne Bywater, to whom Ms Jones claimed she had complained of Mr Sparkes' behaviour. A similar submission can be inferred in respect of the Secretary's failure to call Ms Rogers (see [33(3)] above). 2. I do not propose to consider at length the significant jurisprudence as to the principles for which Jones v Dunkel stands (or does not stand). It is sufficient to state that I do not consider that the issue properly arises in the present case. 3. Ms Rogers provided a statement to the police as to what she recalled Ms Jones telling her as to the events of 17 September 2019. She was not a witness to the incident. Those events were subsequently admitted by Mr Sparkes. I fail to see how in those circumstances the Secretary would have been expected to call Ms Rogers in these proceedings. 4. The failure to call Messrs Pike and Bywater falls into the same category. Further, the fact that Ms Jones made complaints to those supervisors was not challenged. In that regard, there was nothing for the Secretary to explain or contradict. That is, there is no reason to have expected the Secretary to call either witness. Impact of misconduct on workplace 1. Mr Sparkes stated: [14] "109. I believe that the penalty imposed upon me was too severe, as I had not misconducted myself in the course of my employment, nor do I believe that I had done anything to tarnish the reputation of CSNSW. 110. The Offences were based on matters that had occurred in a personal relationship, in private, between [Ms Jones] and me." 1. He submitted: [15] "[5](m) The current misconduct was not work-related. Even though [Ms Jones] was also a correctional officer, no misconduct was found to have occurred in the workplace despite the recent unsubstantiated allegations made by [Ms Jones]. … (o) Clearly, the relationship between [Ms Jones] and the Appellant was a tempestuous one as was evidenced by the language used in their text messages. The Appellant may have had jealousy and trust issues with [Ms Jones], and this was reflected in their texts, however, relationship issues of correctional officers should not be the domain of CSNSW unless they interfere with their work performance. (p) There is no corroborated evidence that the relationship issues between [Ms Jones] and the Appellant affected them in how they performed their duties as correctional officers. … … (s) The Appellant did admit in cross examination that the disagreements or fights they were having spilled into work, however, there was no evidence that the Appellant had neglected his duties in any respect because of these disagreements." (Footnote omitted) 1. Mr Sparkes' employment was not terminated due to poor performance. As he observed in his submissions, he was not suspended between 9 September 2020, when he was found guilty of the criminal offences, and his resignation on 29 May 2021. He continued to work on active duty as usual. Other than in respect of the 2018 Misconduct, there is no evidence that Mr Sparkes' performance or conduct has ever been called into question. 2. However, it is not necessary to find that misconduct has interfered with or adversely affected a person's work performance to determine that it warrants termination of employment. Similarly, it is not sufficient to argue that the misconduct occurred in private, outside the workplace. 3. Section 69(1) of the GSE Act expressly provides that "[t]he subject matter of any misconduct by an employee may relate to an incident or conduct that happened while the employee was not on duty". This is reflected also in cl 7.1 of the Code of Conduct. 4. The question is whether the fact that the misconduct occurred outside of the workplace, in the context of a private relationship, and which arguably had no impact on Mr Sparkes' work performance, mitigates the seriousness with which the misconduct is to be viewed. In the circumstances of this case, I do not think so for two reasons. 5. First, to the extent that Mr Sparkes relies on the argument that his behaviour had no adverse effect on his performance, it is relevant to have regard to the evidence as to the impact that it had on Ms Jones. As Mr Sparkes accepted, the evidence showed that difficulties in the relationship did carry over into the workplace. 6. Further, Ms Jones deposed that: 1. Mr Sparkes was often her direct manager; 2. when he was night shift senior, Mr Sparkes would ensure that she was placed very close to him; 3. Mr Sparkes would often move her or other employees to ensure that she was not working alone with another male employee; 4. Mr Sparkes would email her or call her on the work phone while at work; 5. Mr Sparkes would accuse her of flirting with, or sleeping with, her male colleagues; 6. Mr Sparkes accessed her work computer and read through her emails without permission; and 7. on occasions, Mr Sparkes followed her home from work or waited for her in the car park when she did not want to see him. 1. Second, Mr Sparkes was a Senior Correctional Officer. In that context, I note and agree with the evidence of Mr Smith that: 1. as a correctional officer, Mr Sparkes had a responsibility to guard and rehabilitate inmates who have committed violence offences including domestic violence offences and that "it is a real concern that a Correctional Services Officer would commit offences of the same kind that inmates can be incarcerated for"; [16] and 2. as a senior correctional officer with ten years' service, an important part of Mr Sparkes' role was setting an example for other staff, and he should have been very familiar with the expectations placed upon him, particularly in respect of his conduct. 1. It is relevant to my mind that Ms Jones was in a subordinate working relationship to Mr Sparkes. He was at all relevant times her superior officer. Other considerations Procedural fairness issues 1. Mr Sparkes raised two matters which go the question as to whether he was afforded procedural fairness in the process culminating in the Decision. The first was that Mr Smith made a finding of misconduct under r 40(1)(a) of the Government Sector Employment (General) Rules without advising Mr Sparkes of the details of the alleged misconduct as required by r 38(3) of those Rules and giving him the opportunity to make a statement in accordance with r 38(4). 2. This is not a matter to which the Secretary responded. However, I do not consider that it advances Mr Sparkes' case to any significant degree. 3. Section 100C(3)(a) of the IR Act provides that even if it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Commission is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits. In circumstances where the misconduct is admitted, it is difficult to see what, if any, prejudice was occasioned to Mr Sparkes as a result of the alleged procedural deficiency. 4. The second matter raised by Mr Sparkes that goes to the question of procedural fairness concerns the interview conducted by Mr Smith on 19 May 2021. In broad terms, it is alleged that Mr Smith did not sufficiently interrogate Mr Sparkes so as to elucidate relevant information in respect of the matters on which Mr Smith subsequently relied to make the Decision. Mr Sparkes deposed that the interview lasted nine minutes and that "at no time during the Interview was I given an opportunity to respond to the allegations that constituted the Offences set out in the [6 May 2021] Letter nor was I invited to." [17] 5. I am not persuaded by this argument. The letter from Mr Smith to Mr Sparkes of 6 May 2021 set out in some detail the allegations against Mr Sparkes and the information to which Mr Smith would have regard in making his decision. The letter invited a submission from Mr Sparkes, which could be in writing or oral. Mr Sparkes elected to make an oral submission; he was not subjecting himself to a disciplinary interview. It was for Mr Sparkes to put his case, not for Mr Smith to draw it out of him. 6. In making his oral submission Mr Sparkes had union representation, which the transcript shows was active representation. The transcript also shows that Mr Sparkes, directly or through his union representative, had every opportunity to put forward any submissions which he wished to make. 7. All of the reasons set out by Mr Smith in his letter of 24 May 2021 containing the Decision were available on the evidence referred to in the letter of 6 May 2021 or on the basis of the interview on 19 May 2021. 8. I am not satisfied that Mr Sparkes was relevantly denied procedural fairness. Remorse 1. In his interview with Mr Smith on 19 May 2021 Mr Sparkes stated that he regretted what had happened, but only in the context of the hurt that he had caused his wife. In his written evidence he offered only an equivocal apology, in these terms: [18] "I agree that I acted like a silly teenager, for which I am now deeply sorry because of the effect that it may have had on her." 1. It is difficult to discern any real remorse on the part of Mr Sparkes. His demeanour in the witness box and his challenges to the character and credibility of Ms Jones give the lie to any professed contrition. I have reached the same view expressed by Mr Smith in his letter of 24 May 2021, that Mr Sparkes "failed to demonstrate any insight or remorse regarding the seriousness of the misconduct that [he] engaged in with respect to [Ms Jones]". Prior disciplinary history 1. It is appropriate that I have regard to Mr Sparkes' prior disciplinary history, and I have done so. I have taken into consideration the findings in respect of the 2018 Misconduct and the outcome. 2. The Secretary adduced a significant amount of documentary evidence regarding the 2018 Misconduct. During the hearing, over Mr Sparkes' objections, I observed footage of one of the incidents involving an inmate to which the 2018 Misconduct in part related. I have not been greatly assisted by the documentary evidence or the footage, and I have afforded that evidence little weight. Impact of reinstatement order on Ms Jones 1. I observe for completeness that Ms Jones gave some evidence as to the impact that it may have on her were Mr Sparkes to be reinstated. On the evidence, any interactions she would have with him would be limited as they would not be based at the same centre. I am also mindful that there is no evidence of Mr Sparkes having sought to make contact with Ms Jones since he was charged by the police in late 2019. 2. This is not a matter to which I have afforded any particular weight. Determination 1. Mr Sparkes engaged in misconduct within the meaning of s 69(1) of the GSE Act. While he admitted to his misconduct, there was a significant element of "confess and avoid" in the way in which he presented his case before me. I have not been persuaded that anything raised by him properly mitigates the seriousness of the misconduct. 2. Mr Sparkes' behaviour was contrary to the core values in s 7 of the GSE Act, reproduced at [10] above. It was also in breach of the requirements of the Code of Conduct (see [11] above) which required Mr Sparkes, amongst other things, to demonstrate integrity, accountability and respect; to engage in personal and professional conduct that upheld the reputation of the Department; to strive at all times to relate professionally to colleagues and to act with courtesy and fairness; even when off duty, to act in accordance with the law; to not bring discredit to himself or to the Department; and, to model exemplary behaviour and act as a positive influence in the community. 3. Mr Sparkes has demonstrated no genuine insight into, or remorse for, his misconduct. 4. Mr Sparkes has not put forward a sufficient basis on which a lesser disciplinary outcome should be imposed than that which resulted from the Decision. Given his position, the terms governing his employment and the seriousness of the misconduct, the outcome of "termination of employment (with opportunity to resign within 7 days)" was appropriate. 5. I have determined to dismiss the appeal. Orders 1. I order as follows: 1. Pursuant to s 164A of the Industrial Relations Act 1996 (NSW), I order that: 1. there be no disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, [name redacted], [name redacted]'s children, Mr Sparkes' children, or any current or former inmate held in the custody of Corrective Services NSW; and 2. the doing of any other thing that identifies, or may lead to the identification of, any such person is prohibited. 1. The appeal is dismissed. ********** Endnotes 1. Statement of Nathan Sparkes, 9 September 2021, par 62 2. ibid., par 67 3. Submissions on Behalf of the Appellant, 20 January 2022, par 4(ll) 4. ibid., par 4(k) 5. ibid., par 4(hhh) 6. ibid., par 4(jjj) 7. Statement of Ms Jones, 6 August 2021 8. Tcpt, 11 November 2021, p 64(37) 9. ibid., pp 76(34)-77(36) 10. Submissions on Behalf of the Appellant, 20 January 2022, par 3(l) 11. Tcpt, 11 November 2021, pp 77(38)-78(9) 12. Submissions on Behalf of the Appellant, 20 January 2022, par 4(fff) 13. Jones v Dunkel (1959) 101 CLR 298 14. Statement of Nathan Sparkes, 9 September 2021 15. Submissions on Behalf of the Appellant, 20 January 2022 16. Statement of Craig Smith, 6 August 2021, par 29 17. Statement of Nathan Sparkes, 9 September 2021, par 40 18. ibid., par 73 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: 31 March 2022