Industrial Relations Commission New South Wales Medium Neutral Citation: Holland v Industrial Relations Secretary on behalf of the Department of Communities and Justice [2022] NSWIRComm 1106 Hearing dates: 3 and 4 November 2022 Date of orders: 4 November 2022 Decision date: 04 November 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner O'Sullivan Decision: An order that the applicant be reinstated with continuity of employment and no back pay and that he is issued with an official reprimand for the Assault Incident. Such order to take effect 14 days from the date of this decision. Catchwords: hearing de novo – disciplinary action - misconduct –dismissal- Commission to determine whether misconduct occurred and whether the disciplinary penalty imposed was correct in all the circumstances or whether an alternative sanction should be substituted- alternate disciplinary penalty of official reprimand and no back pay. Legislation Cited: Government Employment Sector Act 2013 (NSW) Industrial Relations Act 1996 (NSW) Cases Cited: Allison v Commissioner of Police [2018] NSWIRComm 1005. Eastwood v Industrial Relations Secretary on behalf of Department of Communities and Justice [2021] NSWIRComm 1014 Marroun v State Transit Authority [2017] NSWCA 273 McDiarmid v Commissioner of Police [2012] NSWIRComm 100 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Texts Cited: NIL Category: Principal judgment Parties: Dean Holland (appellant) Industrial Relations Secretary on behalf of the Department of Communities and Justice (Respondent) Representation: Counsel: Darien Nagle (appellant) Amy Douglas-Baker (respondent) Solicitors: Mc Nally Jones Staff Lawyers (appellant) Industrial Relations Secretary on behalf of the Department of Communities and Justice (respondent) File Number(s): 2022/00200211 Publication restriction: NIL EX TEMPORE DECISION 1. This is an appeal by Mr Dean Holland under Part 7 of the Industrial Relations Act 1996. From a decision made by the respondent, the Industrial Relations Secretary, Corrective Services New South Wales, to terminate Mr Holland's employment, with an opportunity to resign. Now we will call that the "Decision". 2. The Decision was communicated to Mr Holland in correspondence dated 17 June 2022. The appeal was the subject of an unsuccessful conciliation and the matter was allocated to myself for determination. 3. The respondent filed and relied upon evidence from Ms Virginia Henson, Mr Christopher Quinn and Mr Justin Quinn. The respondent also relied on two sets of written outlines of submissions. One was called Respondent's case summary 30 August 2022 and another the Respondent's outlines of submissions, which were provided to the Commission prior to the hearing this morning. I have considered the content of all of those, as well as the oral submissions made by Ms Douglas-Baker on behalf of the respondent. 4. The appellant relied on evidence from Mr Holland himself, Mr Troy William Flowers, Ms Tracey Lee Bell, Mr Benjamin Doherty, Mr Rodney Steven McNaughton, Mr Arthur Stewart, Mr Joshua Michael Pearce, Mr Eric Bruce Holland and Mr Colin Russell. In addition, the appellant also relies upon its notice of appeal and two sets of outlines of submissions, one which was filed on 4 October 2022 and the other prior to the commencement of the hearing this morning. 5. The matter was listed before me and it was heard on yesterday, where evidence was adduced and today the parties made oral submissions. At the commencement of the proceedings this morning and further confirmed by counsel in his closing submissions on behalf of the appellant, the appellant does not seek an order for lost remuneration pursuant to subs 100D(1)(b) of the Industrial Relations Act, the IR Act. He does however seek an order pursuant to s 100C of the Act that he be reinstated to his former employment, with the respondent and also a subsequent order for continuity of employment. 6. The approach of the Commission to an appeal of this nature is uncontroversial and follows the processes as set down in the Court of Appeal decision in Marroun v State Transit Authority [2017] NSWCA 273. I do not intend to repeat all of what is said that flows from that case, suffice to say that this is a hearing de novo and in the context of this case I am to consider firstly whether there was misconduct for the purposes of ss 69(1) of the Government Employment Sector Act 2013 ((NSW) (the "GSE Act") and then secondly, if there is proven misconduct, determine what if any, disciplinary responses should be ordered. 7. Now firstly, if I turn to misconduct, the conduct relied upon by the respondent and which in accordance with Marroun, I am to concentrate on, is that as set out in the letter of 17 June 2022. Firstly, on 12 July 2021 Mr Holland was found guilty of common assault and which I will now on call the "Assault Incident". Secondly, on 12 October 2020, Mr Holland breached clauses 6.1 and 6.3 of the Justice Code of Ethics and Conduct and s 6 of the Justice Dignity and Respect Policy, when he announced, in the presence of SCO Quinn, "We have found our snitch", which I now on call the "Quinn Incident". Important to note in these proceedings there are two Mr Quinns, one is Mr Chris Quinn and one is Mr Justin Quinn. 8. Counsel for the appellant rightly conceded that the Assault Incident, constituted misconduct only by reason of the extended definition under s 69(1)(d) of the GSE Act. It therefore leaves for determination, whether the Quinn Incident constitutes misconduct. 9. During the course of the hearing I put, and the parties agreed, that a contravention of the policy code or conduct of legislative instrument might constitute misconduct for the purpose of s 69. However, whether it does constitute misconduct will depend on the level of seriousness of the breach. In this respect I note the reference by the parties to cases such as Eastwood v Industrial Relations Secretary on behalf of Department of Communities and Justice [2021] NSWIRComm 1014 and Allison v Commissioner of Police [2018] NSWIRComm 1005. 10. I also note the appellant's submissions with respect to misconduct not extending to mere mistakes, errors in judgment or on the exercise of discretion by reference to the case of McDiarmid v Commissioner of Police [2012] NSWIRCom 100 which quotes the decision of Kirby J in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200-201. 11. Turning to the Quinn Incident. The respondent, in the 22 June 2020 letter, alleged that the Quinn Incident constituted a breach of sections of the Justice Code of Ethics and Conduct and the Justice Dignity and Respect Policy. In the written submissions, the respondent further alleges this incident constitutes contravention of clauses 8.10 of the Code of Ethical Conduct and clauses 18.2 and 20 of the Crown Employees (Correctional Officers, Corrective Services) Award 2007 for Kempsey, Dillwynia, Wellington and John Morony Correctional Centres. 12. Turning to the Quinn Incident itself, each of the witnesses who were present gave slightly different, but an overall sense of - a relatively consistent recount of what occurred during the union meeting of 12 October 2020. I pause there and repeat what I said earlier today. I found each of the witnesses to be a witness of credit and they gave the best evidence that they could, including a recount of what they recall happened during the Quinn Incident. 13. Furthermore, I have viewed the video footage that was or is annexure VH2 to exhibit 1, on several occasions. In addition to the consideration of the video footage I have also considered the recount given by each of the witnesses who were present. Relevantly, the evidence discloses that Mr Holland approaches Mr Chris Quinn and places a piece of paper in front of him. That piece of paper can generally be described as a flyer which contains the image of a 'Stop' sign with a silhouette of two rats standing above the 'T' and 'O' sign and underneath it, the word, 'snitch' and then followed by the words 'Keep our union strong', which is found at annexure CQ1 to exhibit 2. Although there is disagreement between Mr Holland and Mr Quinn as to exactly what was said by each party, it is clear that at that point in time, that Mr Quinn pushed the piece of paper away and said something and appeared angry. 14. In response, Mr Holland said, in what was described as a voice slightly louder than the surrounding voices, "We found our snitch". Again, there is some disagreement between Mr Quinn and Mr Holland as to what was said next, but in any event, it was agreed that Mr Quinn took exception to the piece of paper being pushed towards him and in response Mr Holland said something that indicated that he was joking. Mr Quinn then said words to the effect that, "They don't think that you're joking". His recollection is also consistent with the video footage showing Mr Quinn pointing to other persons present in the room. The only real substantive difference between the recounts given by Mr Quinn and Mr Holland and the other witnesses, which is of any import, is whether Mr Holland said, "I'm sorry". 15. After watching the video footage and hearing from each of the witnesses, it is possible, and I find, that Mr Holland did indicate or say words to the effect that he was sorry. I form that view on the basis that although it is not captured on footage, as Mr Holland walks away from Mr Chris Quinn at the time, as he reappears back on the video footage he is looking away from Mr Chris Quinn, so it is possible he has said something which Mr Chris Quinn did not hear. 16. Now it is important to put that incident in context and that it is two days prior to the Quinn incident, Mr Holland had sent an email to members of the union at the Wellington Correctional Centre, which included Mr Quinn. That email annexed a number of memes, as I understand they are called, which simply for want of a better term, contain the common theme about someone snitching. It used that term and I understand that most of those, if not all of those memes, were garnered by Mr Holland from the internet. He did not put them together, but in any event he did send them out. 17. Now in the email, which the memes were attached to, the following words are stated; "These are union emails for union members. Whoever is leaking or revealing information from these emails to management, thanks, we appropriate your disloyalty to us all and may be discontinuing your membership". 1. This all occurred in an environment where a number of witnesses, including Mr Holland, confirmed that members of the union at Wellington Correctional Centre, and this is in around October of 2020, were concerned that one of them, or one of the members of the union, was informing management of what had occurred in union meetings. 2. The respondent submitted that the conduct of the Quinn incident did constitute a breach of the various policies and procedures referred to earlier and furthermore, that this breach was at a level of seriousness, sufficient to constitute misconduct for the purposes of the GSE Act, in particular s 69(1). Now those matters which the respondent pointed to, which give the flavour of the seriousness that it is misconduct, were identified at para 45 of the respondent's outlines of submissions, the ones that were handed up this morning. Each of the matters identified by the respondent are in effect placing the Quinn incident within the context of the working environment, the connotation of the word 'snitch' and that the connotation of that word in itself, within that working environment, being one that suggests someone is untrustworthy and disloyal and be given the relevant concerns of people leaking information. 3. Firstly, I am not satisfied that the conduct in the Quinn incident constitutes a contravention of the various policies and codes referred to by the respondent. Even if I was, I am not satisfied that there has been a contravention of that code or policy which, in my view, reaches the level of seriousness required to constitute misconduct for the purposes of s 64 subs (1) of the GSE Act when taking into consideration the following factors: Each the witnesses who were present thought that the comments were made in jest. Each of those witnesses were surprised at the reaction of Mr Quinn, that being Mr Chris Quinn. This reaction was inconsistent with his usual demeanour, ie, being someone who, if memory serves me correct, in my words, had a reasonable sense of humour. Furthermore, there was no history of malice between Mr Quinn and Mr Holland and I accept the submission of the appellant that what Mr Holland was attempting to do in the circumstance, was de-escalate the situation. 4. Had there been some history of animus between Mr Holland and Mr Quinn or some acceptable evidence which showed that Mr Holland was not in fact joking and he was in fact accusing Mr Chris Quinn of being a snitch, then my conclusion on this issue may well have been different. 5. In the circumstances, I now deal with the issue of any disciplinary action in relation to the Assault Incident. I note the submissions of both parties as to what are the guiding principles, or lack thereof, as to my approach to this and I am grateful to both on that and I have had regard to those submissions. 6. Now common from those mentioned which I accept is that the concepts of proportionality or otherwise could be referred to as harshness and as well as the level of objective seriousness is key to my determination as to what is the appropriate level of disciplinary response to the misconduct which is constituted by the assault incident. 7. The respondent, in the respondent's case summary at paragrapg 27, and by reference to the prior incident, prior misconduct findings on 3 October 2019 and 22 May 2019, when coupled with the assault incident, submits that the assault displays a continual disobedience of the law, inconsistent with the law enforcement rule of a correctional officer and that brings the level of seriousness to that which is consistent with the disciplinary action being in the form of termination with the capacity to resign. That is ss 69(4)(b) of the GSE Act. 8. Now each of the offences arise in the context of an acrimonious marital breakdown. If I return to the two previous offences which underpin the warning that was provided, the first being 3 October 2019, which involves a plea of guilty without the recording of a conviction in respect of possession of an unregistered firearm and also a plea of guilty, with no recording of conviction on 19 September 2020, for contravention of an AVO. 9. I am going to return to the first incident and provide some background to that incident. That incident I am informed and I accept, arises from a complaint made by Mr Holland's ex-wife to the police, upon finding of a firearm. That firearm had been given to Mr Holland some substantial time ago, wrapped in a blanket and sat up on top of a wardrobe. I note that the Local Court did not record a conviction and similarly, with the AVO, it was a conviction which arose from a set of circumstances in which Mr Holland had inadvertently had a parcel delivered to his ex-wife's house. 10. Secondly, the conduct which occurred which is the assault incident, was conduct which I accept and it was unchallenged, that Mr Holland's ex-wife had viewed what had occurred, contacted the police and was not hoping for - or did not have the intent of having Mr Holland charged with assault for what was occurring with his son. It was an exercise of seeking to attract the police's attention to a potential breach of an existing AVO. The evidence clearly discloses that Mr Holland and his ex-wife now have a harmonious relationship, as he does he with his son. 11. I further note that under cross-examination by the respondent, Mr Holland accepted his wrongdoing. He expressed that he was very remorseful. I accept that evidence and that if he had his time again, he would approach things differently. 12. Each of the previous offences did not contain an element of physical violence. Had there been a pattern of repeated behaviour of an identical nature, I might have viewed the assault incident as one which was quite serious and that the disciplinary action of termination with resignation was appropriate. However, I take into account the effect of the termination on Mr Holland, the loss of time that he has been able to spend with his family, his inability, amongst other things, to perform a job which he has given evidence that he finds quite rewarding. 13. Taking all of those factors into account, I find that disciplinary action in the nature of termination with resignation is not proportionate to the misconduct, which is that misconduct being the assault incident. In the circumstances, it is appropriate that Mr Holland, be reinstated, there be no backpay and that he be provided with an official reprimand in relation to the Assault Incident. 14. I hereby order that the applicant be reinstated with continuity of employment and no back pay and that he is issued with an official reprimand for the Assault Incident. Such order is to take effect 14 days from the date of this decision. Daniel O'Sullivan COMMISSIONER ********** Amendments 30 November 2022 - Correction to Paragraph [29] by adding in did not. 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: 30 November 2022