Industrial Relations Commission New South Wales Medium Neutral Citation: Knowles v Health Secretary, in respect of the Ambulance Service of NSW [2022] NSWIRComm 1043 Hearing dates: 13, 14, 15 December 2021; Final submissions filed 18 March 2022 Date of orders: 16 June 2022 Decision date: 16 June 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Webster Decision: Appeal disallowed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Public sector disciplinary appeal – dismissal – homophobic comment in the workplace – inappropriate communications about staff members with direct manager over extended period of time - communications had a connection with workplace - workplace culture and behaviours in the workplace generally – request to manager for answers to questions in job application – applicant used his position to facilitate free entry for manager into concert - consideration of mitigating factors – long and unblemished service history – conduct condoned by manager - insight into contribution to negative workplace culture – appeal dismissed Legislation Cited: Industrial Relations Act 1996 (NSW), Ch 2 Pt 7, s 163 Cases Cited: Bossak v Health Secretary in respect of Murrumbidgee Local Health District [2020] NSWIRComm 1009 Briginshaw v Briginshaw (1938) 60 CLR 336 Eastwood v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Corrective Services NSW) [2021] NSWIRComm 1014 Jones v Dunkel (1959) 101 CLR 298 Marroun v State Transit Authority [2017] NSWCA 273 X (a pseudonym) v Secretary, Department of Education [2021] NSWIRComm 1089 Category: Principal judgment Parties: Brian Knowles (appellant) Health Secretary, in respect of the Ambulance Service of NSW (respondent) Representation: Solicitors: McNally Jones Staff Lawyer (appellant) Bartier Perry (respondent) File Number(s): 2021/240824 Publication restriction: Nil decision 1. Mr Brian Knowles (appellant) has lodged an appeal against the decision to terminate his employment on 11 August 2021. At the time of his dismissal, the appellant was a Duty Operations Manager (DOM) employed by the Health Secretary, in respect of the Ambulance Service of NSW (respondent). 2. The appellant was dismissed after an investigation found that he had breached the NSW Health Code of Conduct Directive (Code of Conduct) and engaged in misconduct. The alleged misconduct can be summarised as follows: 1. Between January 2015 to February 2020, the appellant sent inappropriate content via email, text and messenger exchanges to his then line manager, Ms Kerry Akester, Zone Manager. The appellant admitted that he sent the relevant messages to Ms Akester which he described as "inappropriate" (Communications with Ms Akester allegations). 2. In about January 2019, whilst at the Hamilton Station, the appellant yelled at Acting DOM Alan Davey, "What the fuck are you still doing here? I gave you a fucking order and you're still here. If I tell you to do something you do it you don't question it", and that he further stated, "I want you to do as you're fucking told" (Exchange with Mr Davey allegation). The appellant admitted that there had been a robust interaction between he and Mr Davey, but denied he used the language alleged. 3. The appellant stated, "I'm not working in here with that, nah, I'm not working here with her", when referencing Ms Karen Green, DOM who was returning to work in January 2015 (Statement about Ms Green allegation). The appellant denied this allegation. 4. On or about 11 May 2020, the appellant made a homophobic comment about Mr Jordan Emery, Associate Director Clinical Operations, Hunter New England Sector, at Hamilton Station when he referred to him as a "shirt lifter" (Statement about Mr Emery allegation). The appellant denied this allegation. 5. The appellant inappropriately sought the assistance of his line manager when submitting applications for roles within the respondent's operations (Job application and CV allegations). The appellant does not deny the particulars of this allegation but argues the conduct did not constitute wrongdoing. 6. The appellant assisted Ms Akester to gain entry into an Elton John concert at the Hope Estate in the Hunter Valley when he was the Event Forward Commander for the concert (Elton John Concert allegation). The appellant admits that he asked the Site Manager if Ms Akester could attend the concert and this was ultimately facilitated. 1. The appellant admitted wrongdoing and misconduct during the proceedings in respect of the Communications with Ms Akester and Elton John Concert allegations. He otherwise denied wrongdoing. 2. I have decided for the reasons set out in this decision that the appellant engaged in misconduct in breach of the Code of Conduct in respect of some, but not all, of these allegations. I have decided that in the circumstances, the decision to terminate the appellant's employment was appropriate. Relevant legislation and legal principles 1. These proceedings are brought under Ch 2 Pt 7 of the Industrial Relations Act 1996 (NSW) (the Act). By subs 100C(2) of the 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. 2. In Marroun v State Transit Authority [2017] NSWCA 273 the Court of Appeal examined the Commission's jurisdiction under Ch 2 Pt 7. The principles derived from that decision were usefully consolidated in a decision of Sloan C in Eastwood v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Corrective Services NSW) [2021] NSWIRComm 1014 at [22]: 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. In X (a pseudonym) v Secretary, Department of Education [2021] NSWIRComm 1089, the argument that the employer in a public sector disciplinary appeal is bound by the evidence gathered in the investigation process was considered: "34. Marroun is authority for the proposition that in a public sector disciplinary appeal, the Commission is required to consider whether the appellant engaged in the misconduct alleged. This is a pre-condition to the Commission considering the second aspect of a public sector disciplinary appeal, namely whether the disciplinary outcome was appropriate in the circumstances. 35. Given the appeal proceedings are a hearing "de novo", prima facie and subject to the Commission's considerations of the requirements of s 163 of the Act, both the appellant and the respondent are able to rely upon any evidence that could rationally affect (directly or indirectly) the assessment of the existence of a fact in issue in the proceeding. The facts in issue in a public sector disciplinary proceeding are the particulars of any allegation of misconduct and those matters that are relevant to the Commission's consideration of an appropriate disciplinary outcome…." 1. The misconduct must be established on the balance of probabilities. As stated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) 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. Where the misconduct is not admitted, it is upon the respondent to establish, with evidence, that the allegations can be sustained. There is no presumption that the respondent's investigation outcome is correct. 2. I have applied these principles in considering the issues raised in these proceedings. The respondent's case 1. The respondent relied upon the following written witness evidence: 1. Affidavit of Mr Luke Wiseman dated 29 November 2021: Ex R5. Mr Wiseman is an employee of the respondent and when he made his affidavit, was the Acting Zone Manager, Hunter New England Sector. 2. Affidavits of Mr Jordan Emery filed 18 October 2021 (Ex R10) and 29 November 2021 (Ex R12). At the time he gave his evidence, Mr Emery was the Associate Director Clinical Operations, Hunter New England Sector. 3. Affidavits of Mr Scott Christopher Gooch filed 18 October 2021 (Ex R1) and 29 November 2021 (Ex R3). The exhibits to Mr Gooch's first affidavit were marked separately as Ex R2. Mr Gooch is a Senior Investigations Officer, Professional Conduct & Integrity. He was the respondent's investigator in respect of the allegations made against the appellant. 4. Affidavit of Mr Philip Walker filed 6 December 2021: Ex R6. Mr Walker is an Intensive Care Paramedic. 5. Affidavits of Ms Clare Lynette Lorenzen dated 18 October 2021 (Ex R7) and 29 November 2021 (Ex R9). The exhibits to Ms Lorenzen's first affidavit were marked separately as Ex R8. Ms Lorenzen is employed as the Director Regional Operations for the respondent. Although Ms Lorenzen did not have delegation to make the decision to suspend or terminate the appellant's employment, she was a decision-maker in the disciplinary process and reviewed the investigation report prepared by Mr Gooch. She gave evidence with respect to the process by which it was decided that the appellant would be suspended from his role as contained in the letter of Mr Dutton dated 16 September 2020. Ms Lorenzen also gave evidence with respect to the process that led to her decision to refer the matter to the Chief Executive where the most severe disciplinary action to be considered was dismissal. 1. In addition, the respondent tendered into evidence, Police Directive – Communications – Use & Management of Misuse of NSW Health Communications systems: Ex R4. 2. Each of the respondent's witnesses were cross-examined in the proceedings. 3. The respondent filed a Short Summary of Case on 18 October 2021, written closing submissions on 25 February 2022 (RS) and written closing submissions in reply on 18 March 2022 (RSR). The appellant's case 1. The appellant relied upon the following written evidence in the proceedings: 1. Statement of the appellant filed 19 November 2021: Ex A2. 2. Statement of Mr Evan John Clark filed 19 November 2021: Ex A1. Mr Clark had been employed by the respondent for a period of 32 years, occupying the position of Superintendent – Zone Manager Mid North Coast at the time of his resignation. 1. In addition, the appellant relied upon a document of the respondent, "Allegations of misconduct – Review of Investigation Report – Brian Thomas Knowles": Ex A3. 2. Both the appellant and Mr Clark were cross-examined in the proceedings. 3. The appellant filed a Case Outline on behalf of the Appellant on 19 November 2021 and written closing submissions on 10 March 2022 (AS). Consideration 1. The Commission must determine whether the allegations against the appellant can be made out on the evidence and whether they constituted misconduct. If one or more of the allegations are sustained, then the Commission must consider whether the punishment imposed by the respondent was appropriate in the circumstances. Communications with Ms Akester allegations 1. The appellant admits sending various emails and text messages to Ms Akester between mid-2016 and early 2020, including where he referred to different staff of the respondent as: 1. ".. .that bunch of spastics" 2. "He is a cock'' 3. "she's doing fuck all" 4. "Gobshite" 5. "Vomit" 6. "Just have to push Jeff down the stairs" 7. "She's an idiot" 8. "Knows nothing about anything" 9. "going to throat punch him" 10. "send it to him when you throat punch him" 11. "cunts" 12. "retard crew" 13. "spastic" 14. "going to be annoying as fuck" 15. "Arrange a meeting between him and Pickering. That'll fuck him". 1. The respondent found that this conduct constituted a breach of cl 4.1.2 of the Code of Conduct where is states "staff must treat all other members of staff… in a way that promotes harmonious and productive working relationships." 2. With respect to the allegations as they related to these messages, the appellant stated at Ex A2 at [85]-[90]: "85. As I have stated previously, for the most part, I have no recollection of sending these emails due to the period of time that has passed since these private email exchanges occurred. However, I do not deny that they are my emails or texts. 86. I have acknowledged that the content of some of these emails was inappropriate, however, these email exchanges were intended to be private and not to be shared with other people, which they never were. 87. These emails and text messages were never shared with anyone else prior to them being discovered during a forensic examination by Landers and Rogers of Akester's mobile phone and laptop during their investigation. These messages were nothing more than two managers venting their frustrations in what was an extremely stressful job, working in a toxic environment. 88. In 2010, when I had completed my Ambulance Management Qualification (AMQ), I remembered being taught to 'vent upwards' when we felt frustrated in the job, and it was part of our manager's role to listen to these frustrations. 89. In the case of these allegations, this was simply what I was doing. There was never a time in my 17 years as a NSWA employee where I took my frustrations with the job out on my staff or other managers. 90. At no time when sending or receiving these emails and text messages did I believe that I was in breach of Section 4.1.2 of the NSW Health Code of Conduct (where it states staff must treat all members of staff... in a way that promotes harmonious and productive working relationships). As I have stated, these messages were private conversations that were never expressed in public or purported to be the views of NSWA or NSW Health." 1. When cross-examined, the appellant acknowledged that the communications he had with Ms Akester were inappropriate and even "disgusting". However, he consistently sought to contextualise his conduct by explaining that his workplace was very stressful, and this was a way he coped, by "letting off steam" and "venting upwards". Although I accept the appellant's evidence that he was told to "vent up" in the Ambulance Management Qualification Course he attended in 2010, it is difficult to understand how the appellant translated that to mean that it was appropriate to denigrate his colleagues to his manager in emails and text messages. 2. The appellant responded as follows to a question posed by the Commission during the hearing about the communications (Tcpt,15 December 2021, p 85 (17)-(39)): "Commissioner: Okay, and then you made a few comments about the text messages and the communication with Ms Akester and that, you know, you said that it was inappropriate, that kind of language. Can you explain, just along the same kind of lines, what do you think was wrong in terms of-- Appellant: I made - I made disgusting, disparaging comments about my colleagues and my friends that I've worked with for 17 years. I went down a rabbit hole that I shouldn't have gone down and I felt it was, at the time, it was acceptable. I thought it was acceptable, which it wasn't. Commissioner: And have you kind of reflected upon the impact of that behaviour? What do you - what are your thoughts about kind of the impact of that behaviour in the workplace? Appellant: It's - look, I'll start by saying that if I did get my job back and I'll put it on the record the first thing I would do would be - the first day the first thing I would do would be to go to each of those people and apologise to them for my comments. That's the first thing I would do, and I'll put that on the public record. I have no problem with that. I'm ashamed. As I've said previously, I've had to sit down with my kids and show them those allegations and tell them, 'This is what's happened. This is what I've done,' and it was disgusting. It was inappropriate. They were homophobic comments. I mean, throw all the policies out the window and have a look at it from a moral perspective. It was wrong. I shouldn't have said those things. I shouldn't have engaged in that behaviour." 1. It is difficult to reconcile this evidence with the appellant's final submissions that there should not have been a "broad-brush approach" to dealing with all of the messages, because some of them, read alone, would not constitute misconduct: p 9 of AS. While some of the messages were more offensive than others and may not have resulted in a finding of misconduct by themselves, it is legitimate for the overall conduct and pattern of behaviour to be considered in determining whether the appellant engaged in misconduct. Indeed, this seems to be consistent with the appellant's submission that the emails should be considered as "one course of misconduct": AS at p 8 (ix). 2. There can be little doubt that the work undertaken by the appellant was stressful. Moreover, the conduct was not discouraged by Ms Akester, who should have put a stop to the inappropriate behaviour. There is no evidence of the appellant being told to cease making these types of comments prior to his termination. This gave some credibility to the appellant's complaint that his work environment was "toxic". I reject the appellant's submission that the appellant had a "very good working relationship with Ms Akester": p 6 (c)(iii) of AS. While the appellant and Ms Akester were close, their relationship was not a good working relationship because it engendered unprofessional conduct and behaviours. However, this is not an excuse for the appellant's conduct and it is he who is ultimately responsible for his own decisions. 3. I accept that the appellant did not appreciate that the comments he made were going to be shared with anyone in the workplace. What the appellant did not acknowledge was that by committing the comments to writing, there was always a risk they would be shared or discovered. It is accepted that the appellant did not directly intend to hurt the individuals by the comments made about them, and that there was no threat of violence in his comment about a "throat punch". He was not "levelling" the comments at his work colleagues as such: AS at p 7. However, I reject the appellant's submission that there was no evidence that his behaviour had made the workplace unsafe or that it had promoted a negative workplace culture: AS at p 7. The messages themselves were evidence of a negative culture and a psychologically unsafe workplace. 4. It is also necessary to address submissions made by the appellant with respect to the sharing of the communications with other witnesses in the proceedings, including Mr Emery and Mr Wiseman. In his final submissions, the appellant stated (AS p 16): "(vi) The only texts/emails released to a third party was not done by the Appellant but by the Professional Conduct & Integrity Unit of NSWA, which disclosed to DDCO Jordan Emery, by Mr Wiseman who disclosed the allegation made by Mr Walker to Mr Emery, and by the solicitor for the Respondent who disclosed some of the messages to Mr Wiseman and then led evidence about how he felt about the messages and the fact that he would have to work with the Appellant if he was successful in regaining his employment. Such conduct on the part of the Respondent and its solicitor was reprehensible, particularly as the Respondent's solicitor made the disclosure to Mr Wiseman and then led evidence from Mr Wiseman in an attempt to dissuade this Commission from upholding the Appeal. (vii) It is abhorrent that the Respondent should warn the Appellant of the consequences of breaching the directions given to him in the two letters, including breaching confidentiality, only for the Respondent's PCI Unit and employee (Mr Wiseman) to breach that same confidentiality with total impunity. The hypocrisy of this conduct by a Public Sector Agency is breath­ taking." (footnotes removed) 1. It is common for employers to demand confidentiality in the context of an investigation to secure the integrity of the evidence gathered in the process. Hearings conducted by the Commission occur in open court and decisions are published and available to the public. Mr Emery was informed of the appellant's conduct in his role as Deputy Director of Clinical Operations. I am unable to find that it was inappropriate for him to receive the information about the allegations against the appellant in the context of performing his duties in that role. 2. The respondent states that Mr Wiseman became aware of the remarks made about him "through the proceedings". The suggestion of the appellant is that the respondent was mischievous for telling Mr Wiseman about the comments made about him by the appellant because he would otherwise be "none the wiser" and this step was only taken to assist the respondent in this matter. The appellant's assumption that Mr Wiseman would not have otherwise found out about the comments is not valid, given the public nature of these proceedings. There was nothing inappropriate with the respondent informing Mr Wiseman of the comments made about him and adducing the evidence it did about how he would feel about working with the appellant in the future. 3. During the hearing, the appellant claimed in respect of one of the messages, "some weight needs to be added to the fact that they were sent – they weren't sent from a work device": Tcpt, 15 December 2021, p 37 (44). This was not an argument developed by the appellant. The communications were connected to the appellant's workplace. There was no denial that the messages were often conveyed using the respondent's equipment, to another employee of the respondent, Ms Akester, about other employees of the respondent, often in respect to operations being undertaken by the respondent. The communication had a strong connection with the appellant's workplace. It is also irrelevant that the messages were initially discovered in the context of an investigation not related to the appellant. 4. When cross-examined, the appellant was taken to several of the communications and acknowledged that these were not conducive to harmonious and productive working relationships with his work colleagues. He also undertook that if given his job back, he would apologise to each of the people he had disparaged for his comments: Tcpt, 15 December 2021, p 85 (34). This contrasted with the appellant's evidence and position during the investigation process and in the early part of the proceedings. During the investigation he stated that the respondent had "no right to trawl through private emails and texts" and he consistently claimed that he had not breached the Code of Conduct given the private nature of the exchanges: see for example the appellant's response to the allegations dated 1 July 2021, Ex R2 at p 525; see also [90] of Ex A2. It is important to reflect that this was not the appellant speaking "off the cuff", but a view proffered in the context of being provided with a fair opportunity to consider and reflect upon his conduct and behaviour. 5. By engaging in the practice of making derogatory comments about his colleagues to his superior, even if these were not shared with those people directly, the appellant was contributing to a poor workplace culture, contrary to the Code of Conduct, as alleged by the respondent. It is irrelevant that the same conduct may have constituted a breach of the Communications – Use & Management of Misuse of NSW Health Communications Systems. 6. The appellant's breach of the Code of Conduct in respect to the allegation are particularly concerning, because the appellant occupied a leadership position and had a responsibility to create and model a positive workplace culture. It is also concerning that the appellant sought to explain away his responsibility in the manner that he did and was slow to admit any wrongdoing. Exchange with Mr Davey allegation 1. The respondent found that the appellant engaged in an exchange with Mr Davey which constituted a breach of cl 4.1.2 of the Code of Conduct where it states "staff must treat all other members of staff… in a way that promotes harmonious and productive working relationships." 2. Specifically, the respondent alleged that in about January 2019, whilst at Hamilton Station, the appellant yelled at Acting DOM Alan Davey, "What the fuck are you still doing here? I gave you a fucking order and you're still here. If I tell you to do something you do it you don't question it", and that he further stated, "I want you to do as you're fucking told". 3. The only direct evidence before the Commission with respect to this allegation was that of the appellant at [76]-[80] of Ex A2. This was summarised at [80] of Ex A2 as follows: "As I have stated in previous replies to this allegation, a robust conversation between myself and SO Davey had occurred in January 2019, and I do not shy away from this, however, I do not agree with the allegation that I had yelled multiple profanities at him. A disagreement had occurred between two managers in Hamilton Station which involved a heated discussion. The matter was discussed at a later time, I had apologised, and SO Davey had accepted this apology. The matter was closed out in line with section 2.2 (Self-Resolution – Level 1 workplace grievances) of NSW Health PD2016_046 Resolving Workplace Grievances. As far as SO Davey and I were concerned, this was the end of the matter." 1. When cross-examined on this allegation, the appellant maintained that he did not use the words attributed to him by Mr Davey, and that he had a good working relationship with him. 2. The respondent bears the onus in these proceedings to establish that the conduct alleged against the appellant occurred. Although the statement of Mr Davey regarding the incident was in evidence through the investigator Mr Gooch, he did not give a statement or affidavit in the proceedings and attest to the truth of his version under oath or affirmation. Accordingly, I have not been able to give any significant weight to the statement of Mr Davey. 3. The Commission is required to determine, based on the evidence adduced in the hearing, if the alleged conduct occurred. In the respondent's final submissions, it was submitted that although Mr Davey did not give evidence in the proceedings, his statement in the investigation was in evidence. Further, the respondent sought to rely upon Ms Lorenzen's analysis of the evidence in the investigation as probative to the Commission's determination of whether the alleged conduct occurred: see RS at [7]-[10]. 4. I have decided in the circumstances it is appropriate to accept the appellant's account of what occurred during and after the exchange and I am unable to conclude from that evidence that the appellant engaged in the conduct as alleged by the respondent. Accordingly, I have determined that there is an insufficient basis to conclude that the appellant engaged in the misconduct alleged by the respondent. Statement about Ms Green allegation 1. The respondent found that the appellant made a statement, "I'm not working in here with that, nah, I'm not working here with her", when referencing Ms Karen Green, DOM who was returning to work in January 2015. The respondent concluded that when making this statement, the appellant breached cl 4.1.2 of the Code of Conduct where it states, "staff must treat all other members of staff… in a way that promotes harmonious and productive working relationships." 2. The only direct evidence before the Commission with respect to this allegation was that of the appellant at [81]-[83] of Ex A2. The appellant's evidence was that he had no recollection of making the comment, noting that it was alleged to have been made over six years ago: [82] of Ex A2. He maintained this evidence when questioned under cross-examination. 3. The respondent did not call any witness to give evidence to establish this allegation. Again, it would be unfair to accept the version of events contained in an interview of Ms Green in the context of an investigation without the appellant having an opportunity to cross-examine her. The respondent has not established that the misconduct alleged occurred in relation to this allegation. Bullying, harassment, and/or discrimination on the basis of others homosexuality 1. The appellant was accused of breaching cl 4.1.3 of the Code of Conduct, where it states that staff must not bully, harass or discriminate against others on the basis of their homosexuality. The basis of this allegation was that the appellant made the following comments regarding other staff of the respondent: 1. On 23 February 2020, the appellant sent a text message to Ms Akester with the comment "rainbow boy'' when referring to Mr Jordan Emery, Associate Deputy Director Clinical Operations, Hunter New England Sector; 2. On 8 April 2020, the appellant sent a text message to Ms Akester with the comment "that Jamie lesso" when referring to Station Officer, Jaime Warhurst; and 3. On or about 11 May 2020, the appellant referred to Mr Emery as a "shirt lifter" in an open forum at Hamilton Ambulance Station. 1. The appellant admitted sending the messages referred to above at (1) and (2). He denied the allegation in (3) that he referred to Mr Emery as a "shirt lifter". 2. Three witnesses gave evidence in respect of this allegation, Mr Walker, Mr Wiseman and the appellant. 3. In his written statement, Mr Walker attached the account of the allegation he gave in the context of the respondent's investigation (Ex R6): "10. On 11 May 2020, I was in the plant room of Hamilton Ambulance Station and Mr Knowles said words to the effect of: "the new DDCO is a shirt lifter". Following this statement, Mr Knowles started laughing. 11. I have heard the term "shirt lifter" before. I understand it to be a derogatory term to refer to gay people, and therefore I would never use it. 12. I refer to paragraph 98 of the Knowles Statement. I am originally from Ireland and, while living in Ireland, I heard the term "shirt lifter". I also understand that Mr Knowles is from Ireland. 13. Jordan Emery was the new DDCO at the time. It was widely known that Mr Emery was a gay man. However, that is not relevant at all, and I refer to paragraph 10 of the Investigation Statement in that regard. 14. I spoke with Luke Wiseman about this comment on the evening of 11 May 2020." 1. Mr Walker gave evidence by videolink and was cross-examined. He was clear and consistent in his evidence that the appellant stated words to the effect that Mr Emery was a "shirt lifter" on or about 11 May 2020. His evidence under cross-examination was as follows (Tcpt, 13 December 2021, p 22 (32) – p 23 (36)): "Q. Can I suggest to you that Mr Knowles did not make the poofter comment on that occasion that you're alleging? A. Okay. Q. What do you say do you disagree or agree with that? A. I remember being involved in a conversation in Hamilton station with DOM O'Connor and DOM Knowles. An inappropriate statement was made in relation to the sexual orientation of Mr Emery. I believe I witnessed it. I heard the comment and while I don't recall the entirety of the conversation, I recall that section because I felt uncomfortable. Q. You don't recall whether the term was poofter or shirt lifter? A. It could very well have been both but the only term that I remember on the day was the term shirt lifter. That's the only term I remember from the conversation. Q. You say that you rang Mr Wiseman on the evening that this comment was allegedly made? A. I believe it was or close to it. Q. Of course your memory would have been better on the day that it occurred or close to it than what it would have been a few days after that, is that correct? A. That is correct." 1. Having the benefit of seeing Mr Walker give his account of what he heard, I found him to be a believable witness. Mr Walker conducted himself in a professional manner and was straight forward and to the point when giving his evidence. The appellant did not point to any reason or motivation for him to make up such a specific false allegation against the appellant. Indeed, Mr Walker was junior to the appellant at the time he made the complaint about his conduct to Mr Wiseman. 2. In contrast, I found the appellant's evidence was inconsistent and that he was willing to adapt his evidence if he perceived it would assist his case. An example of this is where he changed his position to agree that he had engaged in misconduct with respect to the Communications with Ms Akester allegations. This followed his active dispute of any wrongdoing throughout the investigation. The appellant similarly adapted his position during the hearing to admit wrongdoing in the context of the Elton John Concert allegation, after consistently arguing that the access to Ms Akester was outside his control and depended "solely" on the site manager upon whom he did not exert pressure: see A2 at [118]. 3. Mr Wiseman's affidavit attached two statements provided in the context of the respondent's investigations regarding the appellant, which included a file note of a conversation he had with Mr Walker about the alleged incident dated 12 May 2020. Mr Wiseman gave evidence that at 10:30 pm on 11 May 2020, he received a telephone call from Mr Walker wherein he raised concerns relating to bullying, intimidating, and inappropriate behaviour of the appellant and another employee at Hamilton Station. He stated that Mr Walker complained during the conversation that the appellant and another officer referred to Mr Emery as a "poofter". 4. Under cross-examination, Mr Wiseman confirmed that he did not ask Mr O'Connor about the conversation that had been reported to him by Mr Walker or undertake any investigation into the allegation. He stated that he considered the conduct alleged to be serious and reported it in accordance with what he understood to be his obligations: Tcpt, 13 December 2021, at p 74. 5. I do not accept the submission of the appellant that the evidence of Mr Wiseman was irrelevant hearsay: AS p 12 at (iv). Although the Commission is not bound by the rules of evidence, there is still a requirement to act fairly in the conduct of proceedings. It is fair and appropriate to take into account the evidence of Mr Wiseman, not as direct evidence of the incident, but the acceptance of the fact that Mr Walker complained about the conduct to him shortly after it occurred. This evidence, which I accept, is relevant in determining whether the conduct occurred, especially as the maker of the statement, Mr Walker gave evidence in the proceedings. 6. Mr Michael O'Connor, DOM, whom Mr Walker alleges was present when the conversation took place, did not give evidence in the proceedings. Under cross-examination, Mr Gooch, the respondent's investigator was questioned about why he had not interviewed Mr O'Connor, responding that, "I need to clarify that third party (Mr O'Connor) was also unavailable. I believe subject to suspension": Tcpt, 13 December 2021 at p 22 (32)-(36). 7. The appellant submitted (at p 13 (e)(v) of AS): "In the circumstances where the Appellant denied making this alleged comment, and the only other person present not being interviewed, the investigator and the decision maker were not entitled to substantiate this allegation on the balance of probabilities, particularly if they had applied the Briginshaw test." 1. In response, the respondent submitted (at [18] of RSR): "The Appellant seeks to discredit the investigation undertaken by Mr Gooch by alleging that the Respondent did not interview witnesses who could have provided exculpatory evidence. As the nature of a public sector disciplinary appeal is a hearing de nova, it was incumbent on the Appellant to call such witness evidence to support of his claims. He did not do so. Thus a Jones v Dunkel inference is reasonably open to be made to reject the Appellant's claims." 1. In Bossak v Health Secretary in respect of Murrumbidgee Local Health District [2020] NSWIRComm 1009, a Full Bench of the Commission considered the application of the rule in Jones v Dunkel (1959) 101 CLR 298 in the context of Commission proceedings, stating at [56]-[59]: "In the first place, the Commission is not bound by the rules of evidence. Section 163 of the Act is in these terms: 163 Rules of evidence and legal formality (1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (2) (Repealed) Further, counsel for the Health Secretary drew our attention to Manly Council v Byrne and Anor [2004] NSWCA 123 in which Campbell J, with whom Beazley JA and Pearlman AJA agreed, stated as follows in respect of the rule in Jones v Dunkel: '51. Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn. 52. Even though a jury should be directed about the availability of the inferences which are recognised by Jones v Dunkel, it is entirely a matter for the jury whether it actually draws one, or both, of those inferences: Cafe v Australian Portland Cement Co Pty Ltd (1965) 83 WN (NSW) (Pt 1) 280 at 286, 287. Applying this principle to the situation of a trial by judge alone, there is no compulsion on the trial judge to draw either of the Jones v Dunkel inferences.' The terms of s 163 of the Act speak for themselves. In addition, as Manly Council makes clear, there was no obligation on the Commissioner to draw the inferences sought by Dr Bossak, even in the absence of s 163. The Decision explains his rationale in declining to do so. Further, the inferences available under Jones v Dunkel are outlined at [51] of Manly Council. They do not permit an inference that the evidence would have been adverse to the party's case. They certainly do not allow the Commission to speculate, as Dr Bossak's submissions did, that the evidence of the Health Secretary's witnesses may have positively assisted his case." 1. The respondent bears the onus of establishing the misconduct in these proceedings to the satisfaction of the Commission, on the balance of probabilities and taking into account the principles espoused in Briginshaw. Mr Gooch's explanation for not interviewing Mr O'Connor was insufficient in my view. Equally, the Commission is not in a position to know if Mr O'Connor could have given evidence that was relevant to the assessment of whether the allegation was made out. Accordingly, I have decided that it is appropriate to conclude that any evidence Mr O'Connor would have given would not have assisted the respondent. However, I have not concluded that his evidence would have necessarily assisted the appellant. 2. Taking into account the seriousness of the allegation, I am persuaded on the evidence that the appellant did make a statement to the effect that Mr Emery was a "shirt lifter" and that when he did so, he knew that it was a derogatory term used to describe a person who is homosexual. The fact that Mr Wiseman recorded Mr Walker's complaint as the use of the term "poofter" rather than "shirt lifter" is in my view, unexceptional. It is not unusual for people to record the effect of words used rather than the exact language. Both the term "poofter" and "shirt lifter" are of the same nature – they are derogatory terms used to describe homosexual people. 3. The evidence was clear that Mr Walker complained to Mr Wiseman about the use of derogatory language being used to describe Mr Emery shortly after the conversation occurred, and this makes it more likely that the conduct in fact occurred. I have accepted the direct evidence of Mr Walker in making this finding, however, I note the appellant's conduct is consistent with his behaviour in adopting foul and inappropriate language to describe homosexual colleagues in the context of his communications with Ms Akester. I reject the appellant's evidence that he had not heard of the term "shirt lifter" prior to these proceedings. 4. Mr Emery was subject to cross-examination by the appellant's representative who suggested that the comment, if made, was not homophobic, as this would imply the appellant was "frightened or scared of homosexuals". Mr Emery's response was that "I think in a modern context the word homophobic has a broader construction than to be scared of homosexuals": Tcpt, 13 December 2021, at p 33 (21). There is little doubt the description of Mr Emery as a "shirt-lifter" was derogatory and consistent with the modern definition of homophobic. Mr Emery gave evidence that he was left feeling "hurt and humiliated" by the appellant's conduct: Ex R10 at [22]. 5. With respect to the message exchanges, the appellant submitted that the use of derogatory language in the context of homosexual people was not bullying, harassment or discrimination because the views were not stated to the people referred to and there was no complaint made. I do not believe the appellant intended to bully, harass, or discriminate his homosexual colleagues with his comments. I acknowledge the fact that the appellant's direct line manager did not reprimand him for adopting the relevant language in the emails and that his conduct in making the remarks was childish. 6. The appellant's behaviour was unprofessional and juvenile. By engaging in the conduct as alleged, the appellant was contributing to a workplace culture where it was acceptable to denigrate people because of their sexuality. In this respect, the appellant cultivated an environment that disadvantaged his homosexual colleagues, and it was therefore, discriminatory conduct. Accordingly, the respondent has established that the appellant breached cl 4.1.2 of the Code of Conduct in respect of these allegations, including the Statement about Mr Emery allegation. Job application and CV allegations 1. It was alleged by the respondent that the appellant breached cl 4.2 of the Code of Conduct when he requested assistance from Ms Akester in recruitment processes. Specifically, the respondent alleged that the appellant had breached cl 4.2 where it states all staff must demonstrate honesty and integrity. 2. The factual matters relating to this allegation were not in contest. The relevant assistance sought by the appellant from Ms Akester was as follows: 1. On 5 February 2017, the Appellant emailed Ms Akester his application and stated "Can you have a look at this please?? It's just version one ...you may recognize some/all of it"; 2. On 17 July 2017, the Appellant emailed Ms Akester asking "Can you send me a copy of your CV thanks"; and 3. On 14 July 2017, the Appellant emailed Ms Akester asking "Would you have anything in your vast array of job application that would reflect the questions for job application ... if you do would you mind forwarding something to me because I can't be fucked trying to make up some bullshit answer... ". 1. There was evidence before the Commission that it was not uncommon for managers within the respondent to coach and provide information to assist each other in the context of internal application processes: see the evidence of Ms Clarke at Ex A1 at [8]-[17] and Ms Lorenzen at Ex R9 at [19]-[20]. In my view, this is normal practice within most organisations. 2. With respect to the first allegation as set out above, the appellant is requesting that Ms Akester consider his application and provide feedback. Although the comment "you may recognize some/all of it" suggests that the appellant had copied aspects of the application from Ms Akester, this was not an allegation made against him. I do not agree that the appellant acted dishonestly or without integrity when he made the request of Ms Akester to consider his application. There is no factual basis to conclude that this was an improper request. 3. With respect to the second allegation, the language used by the appellant is clear that he was seeking to obtain a copy of Ms Akester's CV. I accept the appellant's case that there was nothing inappropriate about that request as such. I note that it was not alleged that the appellant intended to use the CV in an improper manner. 4. Mr Clark gave evidence that it was his experience and understanding from 32 years' service with the respondent that it was common practice for staff to seek feedback from their peers, supervisors and managers when considering applying for a position. He stated that he had reviewed applications and CV's of staff upon request unless he was a member of the relevant selection panel. He also stated that he had shared his CV with staff to assist them, encouraged them to seek feedback if unsuccessful for a role and reviewed unsuccessful applications to provide feedback on where improvements could be made: see Ex A1 at [8]-[17]. 5. Ms Lorenzen gave evidence that as a manager for the respondent, it was common practice for senior staff to coach other staff in the application process. She stated that although this may include reading applications and providing feedback, it did not extend to providing a copy of your own CV to others. Ms Lorenzen's affidavit evidence was that, "it is important that the candidate represents themselves and does not duplicate or reuse the CV of another staff member": Ex R9 at [19]-[20]. 6. There was no evidence of the appellant seeking to misrepresent himself or that he was making the request with an intention to duplicate or reuse Ms Akester's CV. I am unable to conclude that the appellant acted dishonestly or without integrity when he made the request for Ms Akester's CV. 7. I have concluded that the respondent has established the appellant engaged in misconduct, in respect of the third allegation, namely the request for answers to questions in a recruitment process. 8. The respondent's closing submissions in reply suggested that the appellant was asking Ms Akester for content from other recent job applicants in her possession: at [12](b). It is unclear if the appellant was seeking the work or assistance of Ms Akester or that of other people. The appellant claims to have no memory of sending the email, noting it was sent more than four years ago: Ex A2 at [108]. The allegation that the appellant was asking Ms Akester to forward the private information of others was not put to the appellant in the hearing. I have taken the request to be directed to Ms Akester for her work. 9. This request was of a different nature to the other allegations. The appellant's question clearly expresses an intent to duplicate or copy the answers to questions in the context of participating in an interview process. The request for this information demonstrates a lack of integrity on the part of the appellant. However, there is no evidence that the appellant acted dishonestly. The Elton John Concert allegation 1. The respondent alleged that the appellant breached cl 4.2 of the Code of Conduct when he assisted Ms Akester to gain entry to the Elton John Concert at the Hope Estate on 12 January 2020, when he was the Event Forward Commander. Specifically, the appellant is alleged to have acted dishonestly and unethically in engaging in this conduct. 2. In respect of this allegation, the appellant stated in the Notice of Appeal (at p 11 [14]): "Finally, I acknowledged that I got [Ms Akester's] name put onto the guest list of an Elton John concert following multiple requests by her. I did this by asking the promoter's site manager is he could do that because she had not been able to get a ticket, and he agreed. There was nothing dishonest about what I did." 1. The appellant further addressed this allegation at [110]-[119]; [124] (d)-(f) of Ex A2. He gave evidence that he spoke to the site manager who said that he would place Ms Akester's name on the guest list. The appellant stated (Ex A2): "116. From the best of my recollection, on the day of the Sunday concert, 12 January 2020, I picked up Ms Akester from her home address, which was close to the venue and dropped her off at the road near the concert, where she was going to meet some friends. That was the end of my involvement. 117. Ms Akester had told me that she had spoken to Paul Harris that morning and he had confirmed she was on the guest list I had no further involvement in Ms Akester being admitted to the concert. 118. The admission of Ms Akester into the concert was not within my control and depended solely on Paul Harris, I did not exert any pressure on him to grant her admission. It was up to him whether he did so or not. 119. I gained no benefit from Mr Harris admitting Ms Akester into the concert. I was there to work anyway." 1. The appellant's position with respect to whether the conduct alleged constituted misconduct was confusing. Specifically, it was unclear if he admitted wrongdoing and understood that it was inappropriate for him to use his position as the Event Forward Commander to influence the Site Manager to provide free entry to the Concert to Ms Akester. 2. However, the appellant gave the following evidence before the Commission with respect to the allegation relating to the Elton John concert (15 December 2021, p 84 (41) – p 85 (15)): "Commissioner: I guess the other question I have, Mr Knowles, is you made a comment during your evidence that you knew that what happened with the ticket and the Elton John scenario was - I can't remember your exact language but you said words to the effect that it was the wrong thing to do? Appellant: Yes. Commissioner: Why do you say that? Appellant: There's two reasons. One was because, besides code of conducts or any other policy, I knew in my gut, for one, that it was the wrong thing to do and I made a mistake. I shouldn't have followed through with it. But also from the perspective of dealing with music promoters, it's difficult. Pretty much every big gig you deal with as an emergency service, you'll get a promoter to come up to you and say, "Have you got any family that want to come? Here's some tickets." I've always said, "No, I can't do that." That's obviously due to the code of conduct but also because it's - the last thing you want to do is to be owed - is to owe a favour to a music promoter because they'll invariably want that favour back at some time and there's a lot of money floating around in terms of they're in it for the buck, obviously, to make money and they'll try and negotiate three ambulances at a job instead of two and if - which impacts delivery of service. So what I'm saying is the last thing you want to do is take tickets from somebody and then owe them a favour because-- Q. Okay. A. --it's going to impact on delivery of service at the event. So that was - those are - honestly, those are the two reasons why I knew it was a mistake." 1. This frank admission sat uncomfortably with the final submissions of the appellant where he stated that he had "no power or authority to give his line manager entry to the concert", and "At all times, the only person who had the power and authority to grant entry to Akester was the site manager for the venue" and, "The investigator did not obtain a statement from the site manager, Mr Harris": AS at p 19. These submissions seemed to be an attempt to divert the Commission's attention away from a consideration of the role the appellant played in procuring Ms Akester's entry to the Concert, and whether it was appropriate conduct on his part. 2. The appellant acted contrary to cl 4.2 of the Code of Conduct when he assisted Ms Akester in gaining entry to the Elton John Concert for precisely the reasons he articulated in his evidence as set out above at [80]. The conduct was unethical, although I am unable to find that it was dishonest. While I accept the appellant's submission that he was placed in a difficult position given the request for assistance was being made by his manager, this conduct was unethical in that it placed him, and the respondent in a position of conflict with a stakeholder, the Concert organisers. By requesting and receiving the favour from the music promoter in the form of entry for Ms Akester, the appellant was left to feel as though he "owed a favour" to the music promoter. There was a lack of transparency in the way the favour was acquired, and this runs contrary to the communities' legitimate expectations of how a person in charge of a public service will discharge their duties. 3. The respondent made submissions in respect of the appellant's evidence during the hearing that he picked up Ms Akester from her residence in an ambulance vehicle and provided carriage to her and three friends to the Hope Estate whilst on duty: Tcpt, 15 December 2021 at pp 63-67. This conduct was not the subject of the allegations sustained against the appellant. Section 100C of the Act confines the appeal to a review of the specific allegations of misconduct upon which the punishment is based. Was the decision to terminate the appellant procedurally unfair? 1. In his evidence, the appellant was scathing of the process adopted by the respondent in its investigation. In particular, he gave evidence that: 1. he was denied sufficient information to be able to properly engage with the allegations against him; 2. the investigator was biased; 3. he was the subject of a "witch hunt". 1. The appellant is entitled to raise issues of procedural fairness in the context of his investigation, as he did. I can understand the appellant's frustration with aspects of the process, including the fact that some of the allegations were dated and could have been raised formally at an earlier point in time. However, I reject the proposition that he was the subject of a biased process and was the subject of a "witch hunt". There was no credible evidence to substantiate these serious allegations. 2. I have considered that the overall process conducted by the appellant was fair and reasonable and the appellant was given the opportunity to understand the allegations made against him, respond to these as well as input and be heard with respect to the disciplinary outcome. Was the decision to terminate the appellant appropriate in all of the circumstances? 1. The misconduct of the appellant the Commission has found to be proven in these proceedings represents a departure from the articulated expectations of the respondent as contained in their Code of Conduct. The appellant was aware of those expectations and had been provided with relevant training, including on respectful workplace behaviours. 2. Acknowledging that foul language and the odd indiscretion in communications between work colleagues is not unusual, the appellant's transgressions were extensive, and the derogatory language used to describe his homosexual colleagues particularly offensive. It is appropriate that the respondent is firm in condemning such conduct. 3. A consistent theme in the appellant's case was that while what he said about his colleagues was offensive and inappropriate, it was meant for a specific audience (Ms Akester) and it was the respondent who had, through these proceedings, brought those comments to his colleagues' attention. Indeed, his evidence in chief was that the allegations concerning the exchanges should not have been sustained: Ex A2 at [120](d). The appellant is responsible for the offence caused to individuals through his comments, not the respondent who is entitled to defend the proceeding brought against it though the appeal. 4. The appellant's conduct in arranging the tickets for the Elton John Concert for Ms Akester is also concerning. It was worrying that the appellant did not take full responsibility for the conduct earlier and instead sought to minimise its seriousness by arguing it was the Site Manager's decision, rather than reflecting upon his role in the process. 5. The appellant's decision to request answers to questions from Ms Akester in the context of applying for a position is also demonstrative of a willingness to transgress the Code of Conduct and behave inappropriately. 6. Taken separately and alone, each of the substantiated allegations may not have been a sufficient basis to terminate the appellant's employment. However, the overall pattern of conduct by the appellant demonstrated a willingness on his part, over a significant period, to engage in the workplace in a manner that is not consistent with his obligations and the respondent's values as provided for in its Code of Conduct. The gravity of this conduct was compounded by the fact that the appellant occupied a leadership position. Still, the nature and extent of this conduct must be considered in the context of other matters, including the impact of the decision on him personally, his length of service, good service history and level of contrition and insight. 7. The appellant commenced employment with the respondent as a Trainee paramedic in January 2004. He had accumulated over 17 years of service at the time of his termination. He had a good service history and was promoted to DOM in or about 2010. Mr Clark gave evidence that the appellant was diligent and professional in his dealings with him, including when he acted as Superintendent – Zone Manager, Hunter New England Sector. Working with the appellant from October 2018 until February 2020, Mr Clark reported that he had a very high work ethic, regularly making himself available outside of rostered hours to be involved in high level meetings with local operators, Police and Health agencies. 8. Although the respondent questioned the reliability of Mr Clark's evidence, there is no evidence to suggest that the appellant was anything other than capable in performing the operational aspects of his role. I accept that the appellant was good at his job and provided an important service to the NSW community over a lengthy period. I also accept that he loved his job and was dedicated to it. 9. The appellant gave evidence with respect to the impact the termination of his employment has had upon him and his family. He stated that both his wife and eldest daughter are currently seeking regular psychological counselling and that he and his wife currently have a mortgage of $90,000 on their home. The appellant noted that whilst suspended from duty from September 2020 he was placed on base pay which reduced his gross annual income from approximately $145,000 to $92,000 and he had been forced to sell their investment property in December 2020, immediately following his suspension: Ex A2 at [7]-[11]. 10. The appellant did not give evidence in chief that allowed a proper understanding of his overall financial position and the impact the termination would have on him. He omitted evidence directly relevant to, and important to this assessment, including his incapacity to work and receipt of workers compensation payments since his termination, which the Commission only learned about in response to a question addressed to him from the bench about his current earning on the final day of the proceedings: Tcpt, 15 December 2021, p 77 (32). Given the importance of this evidence in the context of assessing both mitigation and the appellant's losses, the parties were provided with an opportunity to address these issues with further evidence. However, after a dispute arose between the parties with respect to the production of documents, it was later determined that the parties would be invited to make submissions on any proposed remedy if the appellant was successful on the merits of his application. 11. Although the appellant demonstrated some insight into how his conduct and behaviour had contributed to the respondent's decision to dismiss him, I remain concerned that he still does not fully accept and appreciate his role in creating an inappropriate workplace culture. At [23] of the Notice of Appeal filed 23 August 2021, the appellant states that: "The Respondent could have imposed a less severe penalty in all the circumstances, however, it should not be entitled to impose its own social values about the content [sic] communications upon its employees." 1. Under cross-examination, the appellant demonstrated greater openness to accepting responsibility for his conduct than he had in his statement and written responses to the respondent's investigation. He seemed genuinely disgusted in his own behaviour and gave emotional evidence when describing how he had explained these matters to his family. However, this evidence was not consistent and at various points, he sought to explain away his conduct, for example, based on his belief that the communications were private, the stress of his role and the adoption of a protocol of "venting up". The appellant did not appear to appreciate how his behaviour could contribute to the overall culture of the organisation as demonstrated by the following evidence he gave to the Commission (Tcpt, 15 December 2021, p25(47)- p 26(1)): "Q. Can you sort of realise now that you were contributing to the same toxic work environment that you allege you were subjected to work in? A. I didn't think that I was. I was just sending - again I was sending an email to my colleague, venting, didn't go anywhere else. It was just a pressure valve system that we used in an extremely busy environment." 1. It is important to observe that the appellant had not received any formal warnings for similar conduct in the past. Indeed, the conduct appears to have been condoned by the appellant's manager, with whom he clearly shared a relationship that had transgressed normal professional boundaries. Despite this, the appellant had a responsibility to conduct himself in an appropriate manner in the workplace. The fact that his manager allowed him to engage in the relevant conduct, seemingly without consequence, did not absolve the appellant of his personal responsibility to abide by the Code of Conduct. Again, this is particularly so given the appellant occupied a leadership role within the respondent's operations. 2. Had the appellant taken a different approach to these matters being raised earlier, for example, by taking greater responsibility for his conduct during the investigation process, the conclusion I have reached may have been different. During the investigation and proceedings, the appellant maintained that he was the subject of a "witch-hunt" and sought to depict himself as a victim: Tcpt, 15 December 2021 at p 34 (27). The appellant did not produce any evidence to substantiate the claim that the respondent or investigator were trying to find evidence to terminate his employment for an improper purpose. 3. There is no evidence of the process adopted by the respondent as being anything other than fair. The appellant was given details of the allegations against him, was provided with additional information when this was requested, and it is clear his responses were considered before a decision was made to terminate his employment. He was also provided with an opportunity to meet with the respondent's Chief Executive. 4. It is open to the Commission to choose a different disciplinary outcome in view of the allegations that have been substantiated. For example, instead of termination, the appellant may be subject to a formal warning, and/or his classification or position could be reduced: s 8.2 of the Managing Misconduct Policy Directive of NSW Health. However, having carefully considered all of these matters, I am drawn to the conclusion that the appellant is not fit to occupy a managerial position and that the respondent's lack of confidence in his capacity to comply with its Code of Conduct in the future is properly founded. The decision to dismiss the appellant is not harsh. I have decided that the dismissal of the appellant was an appropriate penalty for the misconduct sustained in these proceedings against him. Accordingly, I have decided to dismiss the appeal. Orders 1. The Commission makes the following Order: 1. The appeal is dismissed. ********** Amendments 04 July 2022 - 1. Removal of the words "with the Ambulance Service of NSW". 2. Correction of the name of the respondent to Health Secretary, in respect of the Ambulance Service of NSW Award on the coversheet and paragraph [1] 3. Removal of the word "had" in paragraph [2] 4. Removal of a comma in paragraph [2](6) 5. The word "submission" amended to "submissions" in paragraph [18] 6. A space added between the words "and" and "written" in paragraph [18] 7. The word "conduct" amended to "comments" in paragraph [26] 8. The letter "w" has been removed in paragraph [26] 9. The word "of" amended to "as" in paragraph [29] 10. The word "the" added between the words "in misconduct" in paragraph [41] 11. The word "of" removed in paragraph [42] 12. The word "relkation" has been changed to "relation" in paragraph [44] 13. Removal of the word "that" in paragraph [51] 14. The name "Mr O'Conner" amended to "Mr O'Connor" in paragraph [55] 15. The inclusion of the word "out" in paragraph [68] 16. The word "aspect" amended to "aspects" in paragraph [68] 17. The word "extent" amended to "extend" in paragraph [71] 18. The word "provide" amended to "provided" in paragraph [83] 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 July 2022