Industrial Relations Commission New South Wales Medium Neutral Citation: Dey v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Community Services) (No 2) [2023] NSWIRComm 1094 Hearing dates: 14 April 2023, 14 June 2023 Date of orders: 11 September 2023 Decision date: 11 September 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: (1) I direct the parties to confer on remedy in light of these reasons. (2) The parties are directed to advise the Commission by no later than 21 September 2023 whether agreement on remedy has been reached or whether the parties wish to be heard further in relation to remedy. (3) If the parties reach agreement as to remedy they should submit short minutes of order which I may make in chambers. (4) If the parties wish to be heard further in relation to remedy, I will list the matter for directions. (5) If the parties do not advise the Commission of their intentions pursuant to Order 2, I will make final orders in chambers as indicated in paragraph [219]. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Applicant intervened on a volunteer basis in a stranger's family law dispute while on unpaid leave and mentioned her employment with the Respondent during discussions with one of the parties to the dispute — Respondent found that the Applicant had engaged in behaviour of an intimidatory and bullying nature, had exposed her own child to risk, had engaged in secondary employment or unpaid work without approval and had failed to properly manage a conflict of interest and dismissed her for misconduct - Dismissal found to be harsh, unreasonable and unjust – Appropriate remedy for unfair dismissal in circumstances where Applicant sought re-employment or compensation, not reinstatement Legislation Cited: Crimes Act 1900 (NSW), s 60 Evidence Act 1995 (NSW), s 140 Government Sector Employment Act 2013, ss 7, 69 Industrial Relations Act 1996 (NSW), ss 84, 88, 89, 163 Cases Cited: Bartlett and Cini v Mario's Fresh and Frozen Foods [2006] NSWIRComm 1084 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 Corrective Services NSW v Danwer [2013] NSWIRComm 61 Denise Mckay v Department of Family & Community Services [2018] NSWSC 44 Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47; 77 NSWLR 159 Dumas v Industrial Relations Secretary (on behalf of Department of Communities and Justice) [2019] NSWIRComm 1071 Hammon v Metricon Homes Pty Ltd [2016] FWCFB 1914 Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000 Little v Commissioner of Police (2002) 112 IR 212 Meller v Low [2000] NSWSC 75; 48 NSWLR 517 Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Raeburne v Department of Justice and Attorney General [2011] NSWIRComm 48 Rose v Telstra [1998] AIRC 1592 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Texts Cited: Macquarie Dictionary, online edition Category: Principal judgment Parties: Radhiga Dey (Applicant) Industrial Relations Secretary on behalf of the Department of Communities and Justice (Community Services) (Respondent) Representation: Applicant (self-represented) A Perigo of counsel (Respondent) File Number(s): 2022/00268473 Publication restriction: Nil DECISION 1. Radhiga Dey worked for the Department of Communities and Justice (Community Services) (Department) as a caseworker for over thirteen years. During this time she worked in various teams and at various grades including as an Out of Home Care Caseworker at Hawkesbury, Sutherland, Blacktown and Parramatta Community Service Centres; as a caseworker in Child Protection, Triage at the Parramatta Community Service Centre; a Senior Project Officer for the Office of Children's Guardian on secondment; as a caseworker at the Metro Central Child and Family District Unit and as a Community Programs Officer at the Western Sydney and Nepean Blue Mountains District. During this time, she had no performance or conduct issues. On the contrary, she was commended for her work on a number of occasions, including receiving a Certificate of Recognition by the Department in March 2012 for her work with multicultural community members and a Certificate of Appreciation from Sydney University in 2013 for her work with students studying social work and policy including developing an induction manual for students and new graduates undertaking placements with the Department. 2. Despite her unblemished employment record she was terminated on 7 September 2022 due to an incident on Monday, 20 December 2021, when Ms Dey was on unpaid leave. She had commenced unpaid leave in February 2021 in order to care for a foster child. She had been due to return to work on or around 16 March 2022. 3. On 9 September 2022 Ms Dey filed an application pursuant to s 84 of the Industrial Relations Act 1996 (NSW) (Act) seeking relief for unfair dismissal. 4. "Mind your own business" is a common English admonishment which asks that a person not interfere in matters which do not affect them. While it is often used as a rebuke, it is also good advice. The Greek philosopher Epictetus is credited with saying, "Keep your attention focused entirely on what is truly your own concern and be clear that what belongs to others is their business and none of yours." Alas, Ms Dey did not heed this advice on 20 December 2021. Instead, while on the way to the beach with her six-year-old daughter, she was persuaded to involve herself in a stranger's child custody dispute, the consequence of which was that she lost her job. 5. As I will explain in more detail below, the Department viewed Ms Dey's conduct on 20 December 2021 as striking at the heart of her trusted role as a caseworker with the Department, such that it lost confidence in her being able to continue in that role. However, having considered all the evidence and closely observed Ms Dey, who was unrepresented, I do not accept that Ms Dey engaged in the misconduct she is alleged to have engaged in and I consider that her dismissal in all the circumstances was unfair. 6. Nevertheless, I have found that Ms Dey engaged in activity on 20 December 2021 that demonstrated a significant lack of judgment, in a way that understandably caused the Department to be concerned. However, terminating her employment for such conduct was unjust, unreasonable and harsh in all the circumstances. Ms Dey's Role and her Personal Circumstances 1. I will shortly set out what occurred on 20 December 2021, however, in order to understand why Ms Dey's conduct on that day caused the Department concern, it is important to understand the nature of Ms Dey's employment with the Department. It is also important, when considering the harshness of Ms Dey's dismissal, to understand Ms Dey's personal circumstances. 2. At the time of her dismissal Ms Dey was employed as a caseworker in the Child and Family District Unit (CFDU) in the Western Sydney/Nepean Blue Mountains District, although as I have already noted, she was on leave without pay from March 2021 to February 2022. She took this leave in order to help settle into her household, a young child with special needs, whom she had agreed to foster. Prior to taking leave she had been working part-time for the Department, less than 35 hours per week. [1] 3. As a caseworker, Ms Dey was required to work directly with children, young people and families. Her role was primarily on the Parental Responsibility team, but she was required to work in any of the CFDU teams which included Placements, Foster Care Support and Recruitment, Adolescent Team, Child Protection Work and Advice to Non-Government Agencies. 4. Her tasks included: 1. advising statutory non-governmental agencies, caseworkers and managers about current processes, policy and legislation in managing children in out of home care where the non-government agency has case management responsibilities; 2. reviewing large quantities of child protection information from the Child Story system, including risk of harm reports and outcomes and deciding, using professional judgment, what is released to non-government agencies for their life story or case planning work; 3. being the deponent for direct Children's Court matters, meeting with families and/or facilitating Group Supervision with views of all stakeholders including non-government agencies, children, parents who may or may not be present; and making case work decisions and recommending outcomes in conjunction with her manager; 4. undertaking contact mediation sessions at the Children's Court representing the Department pursuant to section 86 of the Children and Young Persons (Care and Protection) Act 1988 (NSW), this being an alternative resolution mechanism for contact disputes between families after final court orders are made; 5. working in adolescent matters in either Out of Home Care or Child Protection in the community and undertaking home visits on her own or with colleagues depending on any safety risks; and 6. working in the Foster Care Team if vacancies or staff shortages occur to assess and support new applicants and existing foster carers with foster children in their care. 1. Ms Dey also had the responsibility of completing critical legal tasks on behalf of children/young persons whose parental responsibility no longer resides with their family/parents/caregivers. This included providing such things as: 1. medical consent for a child/young person; 2. passport applications; and 3. visa applications. 1. Ms Dey was subject to the Department's "Code of Ethical Conduct" (Code). The Code requires employees to place public interest above their own personal interests and at all times to demonstrate the core values of the public sector and the Department, namely service, trust, accountability and integrity and respect. 2. Relevant to this proceeding were clauses 7, 8.1, 8.6, 8.10, 9.1 and 9.2 of the Code. Those clauses provide: 7 Treating people with dignity and respect All employees have the right to be treated with dignity and respect. It is the responsibility of each employee to ensure this occurs. Employees are to treat colleagues, clients, their families and members of the public with equal respect and fairness. Discrimination, bullying or harassment and/or other inappropriate behaviour will not be tolerated by the department in any form, and may constitute misconduct. Inmates, offenders and detainees are clients of the Department. Employees must remain fair and impartial at all times and must demonstrate respect and courtesy towards inmates, offenders and detainees, even in difficult and challenging circumstances. Acts of intimidation, harassment, insults or abuse towards any Departmental client is a serious breach of this Code which may result in misconduct action. When interacting with others, employees must: ● act with impartiality, courtesy, promptness and fairness ● respect the rights and dignity of others ● use courteous, respectful and appropriate language at all times ● be responsive in dealing with all individuals ● not discriminate against, bully or harass any person in their dealings with them ● maintain confidentiality and privacy ● manage work and personal relationships so that professional boundaries are maintained ● declared to their manager, or other appropriate person, any potential, perceived or actual conflicts of interest between their professional and personal interests. 8 Professional behaviour and ethical decision-making 8.1 Conflicts of interest It is expected that conflicts of interest will arise from time to time. Conflicts of interest can be actual, potential or perceived, and exist when there is a chance of an employee being influenced, by private interests when performing their official duties. Undeclared conflicts of interest may lead to bias decision-making, which would constitute corrupt conduct. Employees must recognise and disclose any actual, potential, or perceived conflict of interest to their supervisor/manager or, where appropriate, a more senior manager. An employee must not knowingly make decisions, disclose information or take any other action that may result in, or appear to result in, any private benefit to the employee. In particular, departmental employees must never derive any personal benefit from the skills or labour of the Department's clients. This is particularly important in relation to inmates, offenders and juvenile detainees. The department's Conflict of Interest Policy and Procedure provides guidance on identifying and managing conflicts of interest. … 8.6 Secondary employment and unpaid work All fulltime employees are required to apply for permission to engage in secondary work, other paid work or multiple employment. Part time and casual employees are required to notify the department of engagement in secondary work, other paid work or multiple employment. Refer to the Secondary Employment and Unpaid Work Policy further (sic) advice and guidance. … 8.10 Conduct while off duty All employees must, even when off duty, act in accordance with the law and this code. 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, may damage, or have potential to damage, the reputation of the department and impact their ability to perform their role, therefore, may constitute misconduct and attract action by the department in accordance with section 69(4) of the Government Sector Employment Act 2013. Section 69(1) of the Government Sector Employment Act 2013 provides that action can be taken for misconduct which occurs when an employee is off duty or before his or her employment. … 9 Representing the department Employees are frequently required to represent the department in an official capacity. In representing the department employees must ensure that they have the appropriate delegation and authorisation to do so, and that they are sufficiently briefed on issues likely to be raised, and the appropriate responses. As a general rule, employees may only disclose official information that is already in the public domain, and avoid offering personal comment. The provision of information should also be consistent with department and government policy. … 9.1 Public comment In participating in any political, community, personal or online activity, employees must not: ● make any comment where it could be inferred the public comment, although made in the private capacity, is in some way an official comment of the government or of the department ● make any comment that, even though unrelated to their normal duties, conveys the impression that they are not prepared to implement or administer the policies, procedures and guidelines of the department, or the government ● make any comment that could bring the department into disrepute ● participate in private political activities in the work environment ● use the department's resources to assist political, community or personal activities ● use or disclose information obtained through their work at the department to assist their political, community or personal activities ● misrepresent the position of Department on any issue. … 9.2 Political and community participation Employees are free to take part in lawful political activity outside of working hours, provided it does not conflict with their duties. Employees must be mindful that, in their public life, they are required to serve the government of the day in and impartial manner. Where any political activity may create, or has created, a potential, perceived or actual conflict of interest, employees must discuss this with their supervisor/manager immediately. … 1. Ms Dey was also subject to the Department's "Secondary Employment and Unpaid Work (SEUW) Policy and Procedure" (SEUW Policy). Clause 3 of the SEUW Policy provides: This policy and procedure applies to all employees, except those employees whose SEUW relates to their active/volunteer role in an emergency services organisation. DCJ full-time employees (those working 35 hours or more) are required to seek approval before they undertake secondary employment. These employees are also required to seek approval for any unpaid work where there may be issues that may adversely affect the performance of their public duties within DCJ or where there may be an actual, perceived or potential conflict of interest (COI). Part-time and casual employees are only required to notify DCJ of any secondary employment which will be assessed to ensure that the secondary employment and/or any unpaid work does not adversely affect the performance of their public duties within DCJ and there are no actual, potential or perceived conflicts of interests. Where there are no concerns of adverse performance of duties or conflicts of interest (COI) identified, the form submitted will simply be registered. Where there is any concern around performance of duties or COI issues, and the relevant supervisor and delegated officer will be required to implement appropriate management strategies which will need to be monitored. 1. The Policy also contains the following at clauses 4.1, 4.2 and 4.3: 4.1 DCJ employees as models of exemplary public servants Employees are expected to demonstrate the core public sector values of: service, trust, accountability, integrity and respect. Any SEUW an employee engages in, must be lawful and must not damage the integrity and reputation of DCJ. … 4.2 Secondary Employment It is important for employees who engage in secondary employment to avoid, mitigate or manage any COI including impacts on the performance of their duties as public servants. Employees must not engage in any secondary employment (locally, interstate or overseas) before there is an approved SEUW agreement in place for full-time employees, or a registration for part-time/casual employees. This includes employees who are on any form of leave. Please note that sick and FACS family/carer's leave are not to be used to undertake any secondary employment or unpaid work. Employees must not place their secondary/private or voluntary (unpaid) work interests before their public duties and the interests of DCJ. … Employees must adhere to copyright laws and DCJ guidelines, policies and procedures etc. for their SEUW. Employees who engage in secondary employment or unpaid/voluntary work must not use their DCJ role to solicit clients or to obtain a personal benefit. 4.3 Unpaid Work DCJ commends its employees who selflessly give up their free time to volunteer, engage in charitable work or offer their skills and expertise to help those in need. Generally, engagement in unpaid work does not create a COI. However, there may be circumstances when actual, potential or even a perceived COI may arise as a result of employees engaging in unpaid work. As a general rule, employees are not required to submit a SEUW form for engaging in unpaid work where there are no adverse effects on the performance of their public duties or where no actual, no potential, perceived conflicts of interest exist. However, employees must exercise discretion when considering whether or not it is appropriate to complete a SEUW form under this policy and procedure. Where an employee is unsure if they should apply for approval (full-time employees) or make a registration (part-time/casual employees), they should consult with their supervisor, delegated officer or the Business Ethics and Compliance Unit (BECU) for advice. 1. The Policy defines "unpaid work" as follows: Refers to any employment where no remuneration/payment is received. Unpaid work includes but is not limited to: ● assisting in the family business without receiving any remuneration ● volunteering with an organisation to gain experience in a particular field ● serving as non-paid member or sitting on a strata management committee ● involvement in community sporting groups. Unpaid work also refers to voluntary work or activities that are principally charitable in their nature. These activities are done pro-bono (where the employee's time, skills or expertise is given free-of-charge). Examples include, but not limited to: ● volunteering in a soup kitchen ● working for free in a homeless shelter ● building a home for organisations such as Habitat for Humanity ● providing expertise or advice (such as legal advice) at a charitable legal centre. 1. The Department also tendered in evidence the Department's "Conflicts of Interest (COI) Policy and Procedure" although no specific reliance was ultimately placed on this document. 2. As has already been observed, Ms Dey had been employed by the Department for over 13 years, having commenced her employment on around 27 March 2009. Save for the incident on 20 December 2021, which occurred when she was on leave, her employment history was unblemished. 3. It was not in dispute Ms Dey had obtained approval from the Department for secondary employment as a foster carer. At the time of assuming care of the foster child, Ms Dey also had a daughter aged around 6 years old, who also had special needs. 4. Ms Dey had also notified the Department, on or about 16 November 2020, that she undertook voluntary work for an organisation called "Hope Connect". Her notification, which was sent to her manager, Ms Danijela Vukovic and others, was in the following terms: I confirm my role as Consultant for Hope Connect, Member of the "Take the Lead" Consortium funded by the Australian Federal Government in a 'Voluntary' capacity. I have also read the Conflict of Interest Policy and confirm that my obligations as a NSW public servant in my current capacity does not conflict with my support to the Consortium that undertakes Domestic and Family Violence prevention work in the Parramatta and Cumberland Communities. If you or the team believes there may be a perceived conflict of interest, I am happy to discuss this further. 1. According to an email Ms Vukovic sent to Ms Kim Downie, the Acting Manager Client Services for the Western Sydney and Nepean Blue Mountains Districts of the Department on 25 January 2022 (after the incident on 20 December 2021), the 2020 Annual Report for "Hope Connect" recorded the organisation as engaging in the following activities: "● Targetted earlier intervention program families and youth aged 0-17 years ● Intensive Family Preservation Program ● Playgroup – Play and Grow ● Parenting Education Programs ● Youth Projects 12-17 years ● No interest loan schemes ● Material aid ● Telopea shed." 1. A file note that the Department tendered in evidence, and which I believe was prepared by Ms Downie, records that Ms Dey's work as a volunteer for Hope Connect was approved by her manger, Ms Vukovic and by "MCS" which I understand to refer to the Manager Client Services. [2] 2. Also, in or around 2016, Ms Dey incorporated a company which she called "The Vanguard Institute Pty Ltd" (Vanguard Institute). Ms Dey had plans to one day set up her own business to provide educational and behavioural therapeutic services to promote behaviour support strategies and skills development, with a focus on clients on the autism spectrum. Toward this goal she had commenced studies to become a certified behavioural analyst. However, bank statements tendered in evidence demonstrated that the company had received no income in the three years prior to 20 December 2021 and there is no evidence that Ms Dey or the Vanguard Institute, had received any income for the provision of services prior to her termination, save for money she personally received as an authorised therapeutic carer of a foster child. Ms Dey maintained that no services had been provided through the Vanguard Institute and she had only engaged in 'administrative and governance' tasks with the respect to setting up the company. Save for the events of 20 December 2021, this evidence was uncontroverted. 3. Ms Dey had immigrated to Australia in 2008 with her then husband. She has no family in Australia. In 2018, after a family violence incident, she left home with her daughter and obtained emergency accommodation. She also couched surfed until she secured rental accommodation. Throughout this time, she continued to work for the Department. She subsequently divorced and obtained a sole parenting order for her daughter's care in April 2021 and received final orders for property related issues on 31 March 2023. 4. At the time of her dismissal, she was aged around 43 years old. 5. After being dismissed by the Department Ms Dey obtained a job as a Junior ABA therapist with the Eureka Learning Centre, earning $28.17 per hour plus superannuation. In January and March 2023, she obtained a moratorium on her home loan repayments for several months on the basis of financial hardship. 6. Both of Ms Dey's children have autism and require significant support due to their special needs, much of which Ms Dey must finance personally. Ms Dey gave unchallenged evidence that she had attempted to find employment since her dismissal at a similar salary level to her role with the Department, but she had been unsuccessful, with her age and carer responsibilities posing barriers to her being successful in finding alternative appropriate employment. The Events of 20 December 2021 1. On Sunday, 19 December 2021 a friend of Ms Dey contacted her and asked her for some advice for his friend, Romain Carreno. Ms Dey was told by the friend that Mr Carreno had moved from France to Australia as his Australian ex-partner, Ms Kimberly Read, with whom he had lived in France and shared two children, had returned to Australia with the children. Ms Dey was told that Mr Carreno was being denied access to his children. The friend has apparently contacted Ms Dey because he knew that she had gone through her own difficult divorce and a custody dispute. There is no evidence that the friend contacted Ms Dey because she worked for the Department. The friend told Ms Dey that Mr Carreno was distraught and did not know where to access help or what he should do. The friend did not attend to give evidence, however there was no challenge to Ms Dey's account of the events of 19 December 2021. 2. Ms Dey's first action was to send to her friend, via her mobile phone, screen shots of service providers that Mr Carreno might contact for help, such as the "Family Referral Service", "Family Connect and Support" and "Barnardos Australia". The friend asked that Ms Dey forward the screenshots directly to Mr Carreno, which she did. 3. Mr Carreno attended the hearing to give evidence in Ms Dey's case and was cross examined. His ex-partner Ms Read gave evidence in the Department's case and was also cross examined. I discuss their evidence further in my decision, however it is worth recording at this juncture, as it informs the account of events that follows, that there is obviously considerable animus between Mr Carreno and Ms Read and it appeared to me that each regarded these proceedings to some extent, as an extension of their own personal dispute. 4. Early in the morning of Monday 20 December 2021, as Ms Dey was on her way to the beach with her 6-year-old daughter, Mr Carreno phoned her. According to Ms Dey: "Mr Carreno sounded very distraught and beseeched me to meet with him." I accept that during the phone conversation Mr Carreno told Ms Dey: 1. that he had a parenting plan and visitation arrangements with his ex-partner Ms Read, however she had breached the agreement and had pulled the children out of school early for school holidays and was not responding to his phone calls; 2. Ms Read had declined to participate in formal mediation; 3. he was getting increasingly worried about the children's well-being and was contemplating seeking police assistance and filing a Family Court application; and 4. there "were no ADVOs" in place. 1. Ms Dey agreed to meet with Mr Carreno and his current partner at a children's playground to discuss the matter further. 2. Many would consider Ms Dey's decision to meet with Mr Carreno to be unwise. However, having read and listened to all the evidence it is clear to me that Ms Dey is a caring soul, who would find it difficult to ignore someone who asks her for help. Her long and successful career in social work and her volunteer work with Hope Connect attests to this, but so also does her decision, as a single mother with her own child who has special needs, to foster another child with special needs and to take unpaid leave for 12 months to help the child settle in. It also seems likely that through her work with Hope Connect (which had been approved by the Department), Ms Dey had assisted other people with family issues, so Mr Carreno's request fell on relatively futile soil. 3. Importantly however, there is no evidence that Ms Dey's involvement with Mr Carreno was a business transaction; was undertaken under the auspices of Hope Connect; or done for any other reason than that Mr Carreno was a 'friend of a friend' and that Ms Dey had some personal experience in dealing with her own custody dispute with her ex-husband. The evidence establishes that when Mr Carreno first spoke with Ms Dey, he did not know she worked for the Department, although it seems he knew she worked with children and he likely knew she did family related volunteer work of some kind. His evidence as to why he contacted Ms Dey was as follows: I had legal aid assistance but I was not hearing from my lawyer regarding lodging my family court application on 17 December 2021. As this date passed and it was nearing Christmas, I was becoming desperate to try anything to be able to see my children. It had taken an emotional toll and I did not know where to go [to] get help. One of my old friend[s] informed me about Ms Radhiga Dey (Ms Dey). He said Ms Dey was also going through a family law court (sic), but her child was seeing her father, perhaps I could learn from her how to make this happen for me. He also told me she works with children and is well respected in the community and might be able to speak to me and Kimberly as Kimberly refused to attend formal mediation. 1. I accept that Mr Carreno requested Ms Dey's help as a lay person, who was accustomed to working with children, had gone through her own family law issues and was respected in the community, and not because she worked for the Department or had any particular skill, training or formal expertise regarding family law matters. 2. When Ms Dey met Mr Carreno and his partner at the playground, he provided her with the following additional information: 1. Ms Read had returned to Australia from France where they had been living with his parents on the pretext of bringing the children to spend Christmas with maternal grandparents and then informed authorities she had separated from him before notifying him of her intention to separate; 2. Mr Carreno had followed her to Australia and for a time worked remotely for his American employer, however In August 2021 he had decided to permanently settle in Australia to stay close to his children; 3. Ms Read had first wanted formal mediation before she would allow visits with the children, but then declined to participate in mediation, citing concerns for the children's well-being whilst in his care; and 4. Mr Carreno denied that there had been any issues with visits and he could not understand Ms Read's rationale for denying him access to the children. 1. According to Mr Carreno he also told Ms Dey when he met her at the playground that he had serious concerns about his children's well-being and that is when Ms Dey had told him about the Department. According to Mr Carreno Ms Dey told him she worked for the Department, but was on leave, and that he could make a report to the Department if he had concerns about the children. Ms Dey's evidence did not support this account but in any event, at some point during 20 December 2021, Mr Carreno became aware that Ms Dey worked for the Department. 2. According to Ms Dey she asked Mr Carreno whether he had considered having a supervisor during his visits with the children as this could potentially alleviate Ms Read's concerns. According to Ms Dey, Mr Carreno said that he was not aware of this possibility and then asked if she would speak to Ms Read to see if she would consider a supervisor for the visits and to resolve her concerns with him before he lodged his family law court application. According to Ms Dey: "Mr Carreno was very concerned that the courts were going to shut for the year end and he had 3 days before he filed his application. He wanted to make one last attempt to see if there was an alternative way to come to an arrangement with Ms Read as they had done with their parenting plan being finalised." 1. Ms Dey agreed to accompany Mr Carreno and his partner to Ms Read's home, where she would endeavour to speak with Ms Read. 2. Upon arriving at Ms Read's address Mr Carreno observed that Ms Read's car was not on the street, and it appeared that she was not home. At this point Mr Carreno provided additional information to Ms Dey which should have rung more alarm bells, but alas they went unheard by Ms Dey. Mr Carreno: 1. asked Ms Dey to knock on the door to see if Ms Read and/or the children where there and to ask Ms Read to speak with him in Ms Dey's presence; 2. told Ms Dey that Ms Read had made false allegations against him to the police hoping to get an ADVO, which was declined several times; and 3. Ms Read had installed cameras and he did not want to "murky the waters just before he intended to lodge his family law court application" so he would not go to the door with her. 1. Ms Dey agreed to knock on the door to see if Ms Read was home and to inquire if would be prepared to speak with her and Mr Carreno. A screen shot from the CCTV camera installed by Ms Read and time stamped 12:54:29pm clearly shows Ms Dey approaching the front door with her six-year-old daughter. Another shot, timed stamped 12:55:01pm, shows Ms Dey peering in through the front screen door. Her daughter is not in the picture. 2. The Department made much of the fact that Ms Dey had peered through the door, in circumstances where she had initially told the Department that she had knocked on the door and when it was unanswered, she left. In cross examination she accepted that she did not leave immediately as her daughter had run around to the other side of the house. She explained that she shouted through the door to her daughter to stay where she was, as she knew Ms Read had dogs. Ms Dey accepted that there was a closed door behind the screen door she was looking into. However, she explained that: "…from this door you can see through to the window on the other side where my daughter was." 3. The Department submitted that I should not accept Ms Dey's evidence that she was looking through the door to talk to her daughter, particularly as her explanation for looking through the door had not been mentioned in any of the written material provided to the Department in response to the allegations of misconduct, or in her statements filed in the proceeding. 4. On balance I accept that Ms Dey did attempt to speak through the door to her daughter, although it may not have been her only reason for looking through the door, and that her failure to mention earlier the fact that she had looked through the door before leaving and why she had done so, was because, as she stated in cross examination, she did not think it was relevant to the allegations made against her. Ultimately whether she left the house immediately after knocking and getting no answer, or after looking through the front door and the reason why she looked through the front door, is of no consequence to the allegations of misconduct made against Ms Dey which do not directly concern her visit to Ms Read's house. Based on the time stamps of the photographs the time between arriving at the front door and looking through the front door is less than 30 seconds. There is no evidence that Ms Dey was at the house for longer than a minute or so. 5. After leaving the house Ms Dey and her daughter and Mr Carreno and his partner, met at a café near the local park and Ms Dey listened to more of Mr Carreno's story. I accept that she did not speak much about herself during this time. 6. The group then moved to the park so that Ms Dey's daughter could play. While at the park Mr Carreno asked Ms Dey to phone Ms Read, using her own phone, to ask Ms Read to meet with her to discuss arrangements with respect to the children. Ms Dey agreed to phone Ms Read. 7. Mr Carreno gave evidence that he overheard Ms Dey's conversation with Ms Read, although as it was not on loudspeaker he only heard Ms Dey's side of the conversation. There was some conflict in his and Ms Dey's evidence as to how this came about, including whether the conversation occurred in a car or standing in the park. Ultimately, while I accept that he was a witness to the conversation, as I explain below, I have preferred the contemporaneous documentary evidence as to what was said, rather than Ms Carreno's account. I do however accept, as it is consistent with my own observations of Ms Dey and the documentary evidence, Mr Carreno's observations as to the general tone and nature of the conversation: "… my observations are that Ms Dey was very gentle in her speech, she tried her best explaining my request to Kimberley to meet and talk things out in an informal way to provide her side of the story. I remember that Ms Dey was trying to help us, she was impartial and trying to be fair to Kimberley as well and giving her the opportunity to say her views and not just trust everything I say." 1. Ms Dey's statement as to her conversation with Ms Read was as follows: Ms Read answered my call and I introduced myself to her as an acquaintance of Mr Carreno. Ms Read enquired several times during the conversation if I was a friend of Mr Carreno and I reiterated that I wasn't and had met him for the first time that morning. I said I was relaying his message that he is interested in having an informal discussion with her as she had declined formal mediation. I [in]formed Ms Read that I had accompanied Mr Carreno to her home earlier on the hope of meeting with her and enquired if she would be willing to try that in an informal setting with myself mediating discussion between the both of them. I informed Ms Read that Mr Carreno's reasons to meet with her was because he was not aware that visits could be supervised and if that could alleviate her concerns he was willing to try that and work with her to see how this could be organised. Ms Read confirmed she was not aware of supervised visits and commenced enquiring about me and how I came by this information. I was concerned by the change in tone in Ms Read's voice and did not feel comfortable disclosing my private information. I informed Ms Read that I had experience working with children, young people and families in my most recent employment with DCJ where I had assisted the resolution of family contact issues. I informed Ms Read that I was happy to meet with her first without Mr Carreno to hear her out if this would help. Ms Read then embarked on making enquiries regarding reports she had lodged with DCJ. I informed Ms Read I could not answer to those queries, she would need to follow up with the reference numbers she may have been provided and reiterated the message from Mr Carreno and my offer to listen to her if she was interested in resolving her issues with Mr Carreno, I reiterated I am only volunteering to do this on the request of a mutual friend. Ms Read then asked my credentials and I briefly informed her of skills I employed at DCJ and advisory services to the Consortium made of City of Parramatta Council, Boronia Multicultural Centre and Hope connect advisory services that served families of victims experiencing domestic violence. I spoke only about experience that was relevant to Ms Read's circumstances. Ms Read then made further enquiries about my personal identity and I informed her that she could look me up on the internet through my company name. I informed Ms Read that my identity has been verified by ASIC and that she should assure her[self] that I was a genuine person. I provided my company details so as not to give away my address or other personal details and protect my information. Ms Read then informed she was also with her children and needed some time to process this and asked if I could summarise this information for her as she wished to discuss it with her lawyer. When Ms Read informed [me] she had a lawyer, I realised she did not need any informal support from me. I said I was happy to summarise what we had discussed and sent a text message to Ms Read. 1. The text message Ms Dey sent to Ms Read, at 1:38pm, read as follows: Hi Kimberly, this is Radhiga Dey JP who called you now. As I mentioned I volunteer to assist members of the community to assist resolve issues out of the court system. Your ex-partner contacted me for advice and assistance regarding contact with your children as he had not seen them for over a month. He has shared the parental agreement that informs fortnightly contact with the children and contact during holidays. He has also shared email correspondence with you regarding the contact and having no response from you sought my assistance. As mentioned, I work with DCJ in Parramatta and represent DCJ in Section 86 mediations to resolve contact issues outside the court system. The Federal family Court circuit courts aim to keep matters outside of the court system where possible and push for mediation to occur so parties can resolve the issues. Since you have mentioned mediation has failed, the next step is to lodge a court application. It will not be possible to get orders by consent as you both cannot come to agreement and adhere to it. I understand you choose to keep the children as you claim your ex-partner has harmed the children, however as this is not received a response from DCJ, I am making an assumption that it is not met the threshold for significant harm. I am happy to meet with you to hear your side of the story and see if there is a way forward before it gets to the court system. I'm also happy to bring my six-year-old daughter if that would put you at ease and we can meet a play centre where the children can be occupied while I hear your version. Please feel free to share this message with your lawyer and ask her to contact me. Warm regards, Rada. 1. At 2:20pm Ms Dey sent a further text message to Ms Read which read as follows: Hello again Kimberly, I realised I have not provided a timeframe. I will wait to hear from you or your lawyer until 3pm tomorrow. If I have not heard anything by then, I will assume you are not interested in meeting with me and advice (sic) your ex-partner the next court (sic) of action. Kind regards Rad 1. At 4:48pm Ms Read sent the following text message to Ms Dey: Thanks Rada, I have contacted my lawyer. Can you tell me the name of your business again and the ABN? Thank you, Kimberley 1. Ms Dey responded by text message sent at 6:46pm that night: Hi Kimberly, it is The Vanguard Institute Pty Ltd. The ABN is 44 614 130 175 and the ACN is 614 130 175. 1. Ms Dey had no further contact with Ms Read. 2. Ms Read made two written records of the events of 20 December 2021. The first was made on 20 December 2021, using the "Notes App" on her mobile phone. Ms Read gave evidence that her lawyer, a woman called Hayley, had told her to keep a record of all her interactions with Mr Carreno. The note, which commences on page 106 of 179 pages of notes, reads as follows: 20th December I got a very strange phone call from a woman from DCJ Parramatta, a JP Roman contacted, who works independently with parents to keep custody issues out of court. She called me to say she was at my house and where was I, she wanted to meet and talk. I was 'meant to take the girls to Roman today', she's seen the parenting plan, and it was his holiday time starting today and I 'need to be following the parenting plan or this will escalate to court and I won't have any say in what happens to the girls'. No she hadn't read the reports filed with the DCJ. No she doesn't know roman (sic) personally. He contacted her to help him. She didn't want to talk over the phone, she asked again, where was I and when can she see me … I said I'd speak to my lawyer and asked her to send me her details. I saw on my home cameras that she had come to my house with her little girl, then walked away and come back alone a couple of minutes later and was looking in through the windows into my house. I phoned Hayley who said it sounded so suss. She said I should call DCJ directly to find out if it is ligitimate (sic). She also said Rebecca Kang [Mr Carreno's lawyer] let her know that Roman continues to get more agitated and was begging for video calls. I said we already do it but he wants to know when we'll call. I said Monday and Thursday mornings. Rebecca also said they are filing their own initiating application for court. I called DCJ and this woman is a real caseworker at Parramatta. I'm going to call the Parramatta Place tomorrow and ask what's going on. The woman, Rada, text (sic) me her details so I have information to go off. She said in the text she can bring her little girl and we can meet in a play centre and talk. 1. It seems Ms Read rang the Department on 20 December 2023 and someone, likely Ms Janice Jeffery, a Service Support Manager, confirmed that Ms Dey was employed by the Department, but that she was on leave without pay. Ms Read was advised that Ms Dey's manager, Ms Vukovic, was on leave, but was given her email address so Ms Read could write to her. 2. The second record of the events of 20 December 2023 made by Ms Read is contained in an email that she sent to Ms Vukovic, on 17 January 2022, almost a month later. The email reads as follows: Good afternoon, My name is Kimberley Read. I have been informed that you are on leave until next week, and I'm writing to inform you of a strange experience I had with one of your case workers, Rada. I would like your help to understand what has happened. On the 20th December I received a phone call from Rada, telling me she was from DCJ Parramatta. She told me that my ex partner (Roman) had contacted her, and that she works with parents to keep custody issues out of court. She called me to say she was at my house and asked me repeatedly, where I was. She wanted to meet me and talk. She was quite pushy and also cagey. I started asking questions about how she knows my ex and why she [was] at my house, but she kept saying she wanted to see me and talk. She said I had to give my children to Roman, or I would be taken to court and be in big trouble. I asked if she had read the reports filed with DCJ about the children in regards to Roman, and started to give a brief explanation about the history of Domestic Violence during the relationship with my ex. Again she said to stop talking and asked me where I was and she would come and meet me. At this point I declined to meet and said I would speak to my lawyer. Rada text (sic) me her details and gave me 24hrs to respond. The back story here is that the children and I were hiding from Roman at that point. He had tried to take the children from school and had been to my house to get them but I had already left. So this phone call from Rada was quite scary for me. Due to the history of DV I have security cameras set up at my house, and I watched the footage of Rada and her young daughter come and knock on my front door and look in through the windows. I have since learned that Roman had brought Rafa (sic) and her child to my house and that he was waiting outside for us. I would really appreciate a phone call with you to discuss this. Please give me a call on XXX XXX XXX. Thank you very much, Kimberley 1. In her statement prepared over a year later, on 16 March 2023, Ms Read gave evidence that following the conversation with Ms Dey she felt "intimidated and threatened", and that "To me, DCJ carries weight and at the time of the conversation, I was in dispute with my ex-partner, so I was scared by Ms Dey's call." 2. On 25 January 2022 Ms Vukovic contacted Ms Read, who repeated the information contained in her email of 17 January 2023. According to Ms Vukovic's notes Ms Read provided the following information: "● Kimberley has two children with her ex-partner Roman. They separated two years ago and have an informal parenting agreement. ● Kimberley and her children live in a separate dwelling to Roman. ● On 20 December 2021 Kimberley received a call from Rada. Kimberley advised that Rada had asserted "I am from DCJ .. you have to give the children to the father … you need to speak to me". Kimberley advised that Rada had said she had seen the parenting plan, and Kimberly had to give the children to Roman. Kimberley advised that she had never met Rada before but was feeling scared because Rada had said "I am from DCJ". Kimberley said that when Rada had indicated that she was from DCJ, she had asked Rada if she had read the ROSH [record of significant harm] reports for the children, Rada replied "I don't want to talk on the phone, where are you, meet me right now". Kimberley advised that she had declined to meet with Rada, and could not understand if Rada was from DCJ, why she hadn't read the reports, and why she would direct her to give the children to the father without first speaking to her about what has happened. Kimberley advised that she left Roman her ex-partner due to domestic violence. There is no Apprehended Violence Order, however police have indicated that if Roman attends her residence on another occasion there would be grounds to obtain one. ● Kimberley advised that Rada attended her residence with her daughter, knocked on the door, and peered through her front window. Kimberley advised that her ex-partner Roman later confirmed that he was also present and awaiting for her to answer the door. Kimberley said she has a surveillance camera installed which shows Rada attending her residence. ●Kimberley advised that she contacted Parramatta CSC last year in December 2021, and they had indicated that Rada was on leave without pay. Kimberley had said that she thinks it is inappropriate if Rada was on leave, that she would say that she is calling on behalf of DCJ. ● Kimberley advised she had never met Rada before the 20 December 2021. Kimberley said she (sic) Roman has a girlfriend, so she presumes Rada is an acquaintance or a friend who has offered to help Roman. ● Kimberley advised that she is aware that the children's school and the children's psychologist has (sic) made reports about Roman, and the children's safety to DCJ, however this has never escalated to anything. ● Kimberley advised that she had consulted with her lawyer following this incident on 20 December 2021 and lodged an application with the family law court, the initial hearing is next week. ● Kimberley confirmed that prior to Rada attending the residence, Roman had knowledge of her address, and knew where she lived. ● Kimberly confirmed that Rada has not attempt to call or text again since the contact that occurred in December 2021." 1. On 28 January 2022 Ms Downie phoned Mr Read and advised her that the Department was reviewing her concerns and were treating her concerns as a complaint and would follow up accordingly. A note of the conversation which I understand was made by Ms Downie, records: Ms Read advised that she would like this to be a complaint as she was quite upset about what had unfolded. I sent her a follow up email with me (sic) contact details. The Department's Inquiry and Findings of Misconduct 1. On 2 February 2022 the matter was brought to the attention of Ms Nancy Carl, Manager, Conduct and Professional Standards Unit. Ms Carl gave evidence for the Department and was cross examined. She contacted Ms Read to discuss the matter and to request copies of the screenshots taken from Ms Read's security camera, which Ms Read duly provided by email. Ms Carl's handwritten notes of her conversation with Ms Read record that Ms Read had not reported the matter to police. 2. By a letter dated 3 February 2022 sent by Leonie Matthews, Acting Director Community Services, Ms Dey was advised that her contact with Ms Read had been referred to the Department's Conduct and Professional Standards Unit. Ms Dey was directed to cease all employment with the Vanguard Institute. 3. Ms Lisa Charet, Executive District Director, Western Sydney/ Nepean Blue Mountains District, was informed of the matter during a meeting with Ms Carl on 9 February 2022 and shown the material that had been gathered or prepared in relation to the matter at that point in time. Ms Charet gave evidence for the Department and was cross examined. According to Ms Carl, Ms Charet "decided that the matter constituted potential misconduct" and accordingly Ms Carl drafted a letter for Ms Charet to send to Ms Dey. That letter was sent by Ms Charet to Ms Dey on 10 February 2022. The letter informed Ms Dey of six allegations of misconduct made against her namely: "1. You engaged in behaviour of an intimidatory and bullying nature when, on 20 December 2021, you made contact with Ms Kimberley Read by telephone and said words to the effect of: "you were from DCJ Parramatta and Roman (Ms Read's former partner) had contacted you. You went on to say you work with parents to keep custody issues out of court and you told Ms Read you were at her home. You repeatedly asked where Ms Read was and then told Ms Read that she had to give her children to Roman or she would be taken to court and be in big trouble." 2. On 20 December 2021, after the conversation as detailed in allegation 1 above, you continued to attempt to intimidate Ms Read when you sent her three (3) text messages (the first was sent at 10:24am) in which you again referenced your employment with DCJ and gave Ms Read a 'timeline' to respond to you by 3:00pm the following day (21 December 2021) (copies texts attached). 3. On 20 December 2021, you engaged in behaviour which may have placed your own (approximately six year old) child at risk when you took her with you to the premises of Ms Read and indicated you would take her with you whilst you conversed with Ms Read in relation to the issues as detailed in allegation 1 above. 4. You have engaged in activities for 'The Vanguard lnstitute' without approval for secondary employment and unpaid work. 5. You have failed to declare and properly manage a conflict of interest between your role with the 'The Vanguard Institute' and your employment as a Caseworker with the Department of Communities and Justice. 6. Your actions, conduct and behaviours failed to uphold the Government Sector Core Values and principles of Integrity, Trust, Service and Accountability as prescribed within the Government Sector Employment Act 2013 (GSE Act) s7." 1. The letter invited Ms Dey to provide a response to the allegations and advised Ms Dey that she was suspended from duty until further notice and hence she was unable to return to work as scheduled on or around 16 March 2022. 2. Ms Dey provided a lengthy response dated 11 March 2022. It is not necessary to set out Ms Dey's response in its totality, however there are some aspects of her response which need to be noted. 3. Firstly, it is the case that Ms Dey alleged in her response that Ms Read had made a "vexatious complaint" against her, essentially, so Ms Dey believed, to get back at her for assisting Mr Carreno. While I can understand why this allegation suggested to Ms Charet, who was the ultimate decision maker, that Ms Dey did not accept responsibility for her actions and that she lacked insight into her actions, Ms Dey also made the following statement in her response: "I realise I have gotten myself involved in this situation not realising how this could escalate. I understand that I should have ceased my involved after I had provided advice relating to local area services to Mr Carreno. If I was ever to be presented a similar situation, I will limit myself to providing directions to relevant agencies and support groups that may be able to assist." 1. These are matters to which I will return below. 2. In relation to the telephone call with Ms Read, Ms Dey gave the following account in her response of 11 March 2022: I called Ms Read on my phone and introduced myself. I informed Ms Read her ex-partner had contacted me to seek some advice regarding his attempts to see his children. Ms Read asked if I was a friend of Ms Carreno. I said I wasn't his friend, just a neutral person who has some experience regarding contact issues for children with family members and that I heard his side of the story and was willing to hear her side of events if she was interested in finding a way forward. I said I was aware that he is in the process of filing his application at [the] family court and he really wished they could resolve this without going to litigation. Ms Read then enquired what my credentials were. I informed her I am a JP in the community. I am currently on leave from my primary role as public servant at DCJ in Parramatta and I have experience talking to families to resolve contact issues through mediation process (sic) outside the court system in a process called S 88 mediations facilitated by legal aid. I have also worked with multicultural service providers who have clients that find it hard to understand social systems and processes and have experience understanding clients (sic) experience assessing appropriate services. I explained that the Federal family court system also encourages mediations as first port of call to see if parties can resolve the issues. I informed Ms Read I could direct her to services such as the local community legal centres and talk to her about how this can be organised. Ms Read then informed me she did tell her partner she will speak to him via mediation but that the mediation had already failed. Ms Read informed that she had concerns for her children's well-being in Mr Carreno's care and reported her concerns to DCJ but she has had no feedback. I reiterated that I am only speaking to her as a neutral party as her partner had sought assistance for a way forward amicably and I'm doing this voluntarily at no cost to both her and Mr Carreno. Ms Read asked in what capacity I was wanting to speak to her and if I am representing an organisation if it is not DCJ. I reiterated that I am just acting as an individual with some experience as informed earlier and I hoped I could assist if my assistance is sought. I asked Ms Read if she had a support person who could explain things to her about systems and how the processes work and that I was happy to speak to them if she preferred that. Ms Read then stated she had a lawyer. I was delighted to hear that and said she could take time to think about what I discussed with her and share that with her lawyer. Ms Read again asked who I was representing and if there was a firm (I am assuming when she asked this she may have been referring to a multicultural organisation that I may have referenced) and what she should tell her lawyer as to who I was. I understood Ms Read's confusion as I would have done so if I was in her shoes. If her lawyer needed to verify me other than by the name I had given her over the phone, I informed Ms Read, I have a company in the name of Vanguard Institute Pty Limited that the lawyer could use to check who I am. I informed Ms Read that it might have been a lot to take in and offered to send her a message summarising our conversation for discussion with her lawyer. Ms Read accepted this offer. I informed Ms Read that since she has a lawyer she may not need to speak with me and that is fine if she decides to do that and thanked her for speaking with me. 1. In relation to the text message she sent to Ms Read with a time frame for Ms Read to respond, Ms Dey explained: In relation to providing a time frame, when I heard Ms Read had legal advice I stepped back and realised she may not require any assistance from me. To cease my involvement, I needed to provide her and myself a timeframe so there were no misconceptions. As a way of courtesy to Ms Read so she didn't have to make an effort to let me know if she decided she is not interested in speaking with me and as [a] courtesy to Mr Carreno so he is not kept waiting indefinitely to file his papers given the impending holidays season, I offered to understand that if I didn't hear from Ms Read by 3pm the following day I will assume she is not interested to talk further. 1. In relation to the allegation that she placed her child at risk when she took her to Ms Read's premises, Ms Dey stated, inter alia: I am happy to speak directly to the nature of risk I may have placed my daughter under if this is informed to me. 1. In relation to the allegation that she had engaged in activities for "The Vanguard Institute", without approval for secondary employment and unpaid work Ms Dey responded as follows: The Vanguard Institute Pty Ltd is a company that I am still in the early stages of setting up. The Company will provide educational and behavioural therapeutic services utilising ABA principles for clients and care givers when it becomes operational. Whilst the focus will be on clients on the Autism spectrum, services will also be delivered to promote positive Behaviour support strategies to promote skills development. I am working towards my Board Certified Behavioural Analyst (BCBA) licence and undertook the first step in this process which is completion of the course work to register for "Registered Behaviour Technician" (RBT) qualifications. I am the sole director and investor. I have attached copies of the Company bank statements for the last 3 years as evidence that there has been no service delivery to date. This is the extent of activities I have engaged in for the Institute. I did not seek approval for secondary employment and unpaid work as I believed undertaking governance and administrative functions in setting up my company was not secondary employment as I was not paying myself a remuneration. Though I was previously advised by my management that I need not log information if I wasn't in gainful employment, I realise I can still attempt to log the details and receive feedback. I am now better informed what I need to do and will endeavour to do so in the future. 1. At the conclusion of her letter Ms Dey stated: I am willing to hear from the decision-maker, her views regarding what I can do [to] express the regret I'm feeling from having not ceased at providing Mr Carreno advice relating to services he can access. 1. Ms Dey's response was reviewed by Ms Carl, who prepared an analysis of the response. Ms Carl then prepared, on 27 June 2022, a briefing note for the Executive District Director (Ms Charet), which included the following: Notwithstanding Ms Dey's denials, there is evidence available in this matter which brings Ms Dey's denials into question. In this regard, the Delegate may determine there is sufficient evidence, on the balance of probabilities, to make findings in relation to the allegations or that the matters warrant further inquiry. 1. Ms Charet received the briefing note and other documents from Ms Carl on or around 27 June 2022. Ms Charet gave the following evidence: I considered the allegations, the response by Ms Dey, the analysis of the allegations as set out by Ms Carl, and whether the allegations had been substantiated. I formed the view that the investigation was thorough, the evidence included both text messages from Ms Dey and screenshots of her at Ms Read's house supporting the findings and that the findings were reasonable. 1. By a letter dated 4 July 2022 Ms Lisa Charet, Executive Director of the Western Sydney Nepean Blue Mountains District of the Department advised Ms Dey that each of the allegations has been sustained and she had found that Ms Dey had engaged in misconduct within the meaning of s 69 of the Government Sector Employment Act 2013 (GSE). Specifically, Ms Charet stated that: "I have found that sustained findings are a breach of the Code of Conduct clauses 7, 8.1, 8.6, 8.10, 9.1, 9.2 and the GSE, section 7. 1. Ms Charet also advised in her letter of 4 July 2022 that she was considering imposing a penalty against her, the most severe being to terminate her employment after allowing her the opportunity to resign. The letter invited Ms Dey to make any submissions and provide any additional information in relation to the penalty being considered. 2. Ms Dey provided a response dated 25 July 2022. It is not necessary to set out all of Ms Dey's response, however again, there are three relevant points to note. 3. Firstly, Ms Dey again referred to the fact that she did not understand what risk she was alleged to have exposed her daughter to, stating: "I have clearly declined the allegation and if clarity is provided regarding the nature of this 'risk', I'm happy to respond to it. In my belief there is 'risk' even in walking on the kerb, from falling and hurting oneself or from a car swerving out of control on the road and hitting pedestrians. I am eager to know the nature of this 'risk' against which serious allegations have been raised against me as a protective parent." 1. Ms Dey also observed that that the allegation that she failed to declare and properly manage a conflict of interest between her role with the 'The Vanguard Institute' and her employment as a Caseworker with the Department "does not state what the conflict of interest is between my role with the Department and the existence of a dormant company." 2. Ms Dey also gave an extensive account of her successful career with the Department and referred to the fact that she was the single mother of a 6 year old autistic daughter and the foster parent of a 6 year old autistic boy. 3. On 9 August 2022 Ms Charet and Ms Carl met with Ms Dey and her support person. Ms Carl made handwritten notes of the meeting which record Ms Dey as saying: "I deny all the allegations. Sincerely went into it thinking helping someone and can see how it's snowballed. Regret & can see Depart concerns about the event which has occurred. Won't ever put self in position again … Disheartening how more than a decade of public service has been undermined by this event. Think it is harsh – serious implications for family – two children under seven – sole provider- both have special needs. I am 43yo & chance of my employability being considered bank have advised I risk losing my home & whilst finding stability won't be able to care for my children & foster son who is just finding feet – fear it would tear us apart. I have never told the person or said to any parent that they need to give their children to somebody else." 1. Ms Carl's handwritten notes record the following exchange between Ms Charet and Ms Dey LC [Ms Charet] – said you'd never put yourself in this position again – what did you mean? RD [Ms Dey] - I forwarded [names of?] other organisations & would stop at that. LC - so you can see how somebody can perceive you as being in a position of power? RD - yes they always see me as rep of the dept & I am a public servant. 1. Thereafter Ms Charet determined that Ms Dey's employment should be terminated, after she was giving the opportunity of resigning. This was communicated to Ms Dey by a letter from Ms Charet (drafted by Ms Carl) dated 24 August 2022. Ms Dey did not resign, and her employment was terminated on 19 September 2022. 2. Ms Charet gave evidence that in making her decision she considered: "(a) the information that Ms Dey provided to me by letter dated 25 July 2022 and in our meeting of 9 August 2022; (b) the material [provided to her by Ms Carl]; (c) that Ms Dey had shown by her responses little insight into her actions and that such conduct was not conduct expected of an employee of DCJ; (d) that Ms Dey did not understand that she had acted inappropriately by engaging in conduct that put the Department's reputation in working with and protecting vulnerable people within the community at risk by approaching Ms Read, representing she was from the Department and seeking to engage Ms Read in a discussion regarding her personal circumstances. Ms Dey then continued to engage in such conduct by sending text messages to Ms Read; (e) Ms Dey's interaction with Ms Read found to be intimidating and bullying and the continued conduct of sending Ms Read text messages continued that intimidation by giving Ms Read a timeframe for a response; (f) that Ms Dey's role with the Department was to work with and ensure the safety [of] young children and that by taking her child to Ms Read's house, Ms Dey showed poor judgment and put a child into a situation that may had have (sic) are bad outcome; (g) that Ms Dey breached the Department's policies by failing to declare her employment with the Vanguard Institute and that given Ms Dey had made a similar application, she was aware of her obligations; (h) the potential exposure to the Department given that Ms Dey did not accept any responsibility for her actions." 1. Notably in her evidence Ms Charet did not list as a consideration, Ms Dey's unblemished work history with the Department or Ms Dey's personal circumstances. 2. In her letter to Ms Dey of 24 August 2023 Ms Charet wrote, inter alia: I have now considered all of the information available to me which includes your submission of 25 July 2022, the information provided to me during our meeting, which included your personal circumstances and the fact that you now had an understanding that 'you are a public servant even when off duty' and your prior work history with DCJ. As an employee of the Department of Communities and Justice (DCJ) you hold an influential and responsible position, and I remained extremely concerned about your actions in this matter including your engagement in text messages and attending, uninvited, the home of Ms Read. I have formed the view that the final decision of termination after an opportunity to resign is to be imposed in this matter. Legislation and Legal Principles 1. Section 84 of the Act allows for applications to be made to the Commission by employees who have been dismissed and who claim that their dismissal is "harsh, unreasonable or unjust". It is now well accepted that each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration. As stated by the Full Bench in Corrective Services NSW v Danwer [2013] NSWIRComm 61 ("Danwer"): "21. …It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted." 1. While my consideration of this matter is informed by the above passage, the following observations of Commissioner Newall in Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000 is also instructive: "6. The meaning of the words 'harsh, unreasonable or unjust' has been considered in a long line of cases. Glosses have been placed on the terms but in my view [it] is neither necessary nor warranted to go beyond the ordinary meaning of the words, as they are perfectly comprehensible words that sit coherently within the purpose and context of the statute as a whole: Certain Lloyd's Underwriters and Underwriters Subscribing to contract No IHOOAAQS v Cross (2012) 293 ALR 412. A dismissal may be harsh, or unreasonable, or unjust, or all three: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465." 1. Section 88 of the Act sets out matters which the Commission may, in determining a claim, take into account. Relevantly those factors include: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given--its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) … (f) such other matters as the Commission considers relevant. 1. To be entitled to any remedy under the Act, the onus is on Ms Dey to prove that her dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273. 2. However, where the dismissal of an employee is justified on the basis of an allegation of misconduct, as is the case here, it will be for the employer to establish that the alleged misconduct in fact occurred and warranted dismissal: Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 464; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 at 83-84. 3. The misconduct must be established on the balance of probabilities. While the Commission is not bound by the rules of evidence, I am mindful of the requirements of s 140 of the Evidence Act 1995 (NSW). This section requires a Court, in a civil proceeding, to find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. In deciding, in a civil case, whether it is satisfied that the case has been proved, a Court is to take into account: (a) the nature of the cause of action or defence; (b) the nature of the subject‑matter of the proceeding; and (c) the gravity of the matters alleged. Although the standard of proof remains the balance of probabilities, the degree of satisfaction varies according to the seriousness of the allegations made and the gravity of the consequences (if the allegations are found to be correct). 4. Section 140 reflects the common law as explained seminally by Dixon J (as his Honour then was) in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. Dixon J emphasised that when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. He pointed out that a mere mechanical comparison of probabilities independent of any belief in its reality, cannot justify the finding of a fact. But he recognised that, at 361- 362): "No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. 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. Dixon J also pointed out, at 363-363, that the standard of persuasion, whether one is applying the relevant standard of proof on the balance of probabilities or beyond reasonable doubt, is always whether the affirmative of the allegation has been made out to the reasonable satisfaction of the tribunal. He said that the nature of the issue necessarily affected the process by which reasonable satisfaction was attained. And, so, he concluded that in a civil proceeding, when a question arose whether a crime had been committed, the standard of persuasion was the same as upon other civil issues. But he added, weight must be given to the presumption of innocence and exactness of proof must be expected. 2. Button J held in Denise Mckay v Department of Family & Community Services [2018] NSWSC 44 at [65], by reference to Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41, that is appropriate for this Commission to apply the "Briginshaw standard of proof" even though the rules of evidence do not apply strictly in the Commission: see s 163 of the Industrial Relations Act. 3. While Ms Dey has not been accused of a crime, she is accused of having engaged in misconduct, including intimidatory and bullying behaviour, placing her child at risk and of having breached s 7 of the GSE and the Department's "Code of Ethical Conduct" and as a consequence has lost her job. In these circumstances I consider that I should reach a state of satisfaction or an actual persuasion that Ms Dey engaged in the misconduct, while taking account the seriousness of the allegations and the gravity of the consequences that follow if the allegations are sustained. 4. Guidance as whether or not a dismissal is harsh was given by the Full Bench (Walton J, VP, Haylen J and Bishop C) in Department of Health v Perihan Kaplan [2010] NSWIRComm 65 at [29]: "We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of 'harshness' it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows: 'In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence.'" 1. The reference to Little in the above quotation is a reference to Little v Commissioner of Police (2002) 112 IR 212. 2. In Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 McColl JA made the following observations at [156]: "I have already referred to the tripartite test posed by s 84 of the IR Act as to whether an employee's dismissal was 'harsh, unreasonable or unjust' as explained in Byrne. In addition to the matters there identified, in considering the possibility that dismissal might be 'harsh', (although not unjust or unreasonable), it is necessary not only to identify any misconduct on the employee's part said to have justified the termination, but also to 'weigh in the balance any "mitigating circumstances"...including length of prior employment, the employment record and favourable character considerations'." 1. In Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 the Full Bench remarked: "Bearing in mind the foregoing discussion of principles, we will consider the severity of the penalty inflicted on the respondent for his misconduct having regard to relevant mitigating circumstances. In other words, it is necessary to consider whether the dismissal was disproportionate to the gravity of the misconduct both in itself and when examined in the light of mitigating circumstances including the personal and economic circumstances of the respondent." 1. The primary remedy if a finding is made that a dismissal is harsh, unreasonable or unjust is reinstatement: Dumas v Industrial Relations Secretary (on behalf of Department of Communities and Justice) [2019] NSWIRComm 1071 at [24]; Raeburne v Department of Justice and Attorney General [2011] NSWIRComm 48 at [62]- [63]. The Commission can only consider an alternative remedy if reinstatement is impracticable: s 89(2) of the Act; Dumas; Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. 2. In Perkins the Court observed at 191 – 192: "Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable. 1. In Dumas the Full Bench observed at [34] – [35]: "What is clear from the authorities is that there is a range of circumstances that may make reinstatement impracticable. In one context, it may be impracticable because it is impossible, for example where the position in question no longer exists. In another context, it may be impracticable to reinstate an employee because the break down in the employment relationship is such that it simply is 'not practicable' to expect that the relationship issues that led to the dismissal of the employee can be overcome and the employment relationship effectively re-established. The later example was clearly envisaged in the second reading speech introducing the remedy scheme for unfair dismissals. This example also makes clear that whether it is practicable to reinstate an employee means something more than "possible"." As stated by Wilcox CJ in Nicholson at pages 60-61: 'It is important to note that Parliament stopped short of requiring that, for general compensation to be available, reinstatement be impossible. The word "impracticable" requires and permits the Court to take into account all the circumstances of the case, relating to both the employer and employee, and to evaluate the practicability of a reinstatement order in a commonsense way. If a reinstatement order is likely to impose unacceptable problems or embarrassments, or seriously affect productivity, or harmony within the employer's business, it may be "impracticable" to order reinstatement, notwithstanding that the job remains available.'" 1. The reference to Nicholson in the above quotation is a reference to Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50. 2. If reinstatement is impracticable, pursuant to s 89(2) of the Act the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable. As Spigelman CJ held in Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47; 77 NSWLR 159 at [20] (Tobias JA and Handley AJA agreeing) the power to order re-employment can only be exercised where findings are made that the employer has another suitable position available. 3. Pursuant to s 89(3), if the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order. However, if the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, pursuant to s 89(5) the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave. Pursuant to s 89(6) when assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment. 4. The Commission's task in assessing compensation was summarised in Bartlett and Cini v Mario's Fresh and Frozen Foods [2006] NSWIRComm 1084 at [27] – [28]: "Section 89(5) is concerned with loss of income, not any assessment of damages. It is fairly settled law now in this State that such monetary compensation is neither punitive, punishing an employer for any wrongdoing on his part, nor designed to enrich the dismissed employee at the expense of his former employer: Henderson v Rural Lands Protection Board (1997) 74 IR 142 at p.150. Nevertheless, there is still a level of speculation in determining the appropriate level of remuneration for the two employees. Section 89(6) does not prescribe a simple mathematical formula in the assessment of monetary compensation - a sum representing the amount of income over the period of six months immediately prior to the dismissal, compared and contrasted with the remuneration received in the alternative employment and considered against the length of time that an employee was out of work: D and R Commercial Pty Limited v Flood [2002] NSWIRComm 88; (2002) 113 IR 344 at p.363. The only jurisdictional limitation is the six month ceiling in s 89(5): the rest is a matter for the Commission's discretion." 1. As I have already recorded, Ms Dey was found to have breached sections 7 and 69 of the GSE. Those sections provide: 7 GOVERNMENT SECTOR CORE VALUES The core values for the government sector and the principles that guide their implementation are as follows-- (a) Consider people equally without prejudice or favour. (b) Act professionally with honesty, consistency and impartiality. (c) Take responsibility for situations, showing leadership and courage. (d) Place the public interest over personal interest. (a) Appreciate difference and welcome learning from others. (b) Build relationships based on mutual respect. (c) Uphold the law, institutions of government and democratic principles. (d) Communicate intentions clearly and invite teamwork and collaboration. (e) Provide apolitical and non-partisan advice. (a) Provide services fairly with a focus on customer needs. (b) Be flexible, innovative and reliable in service delivery. (c) Engage with the not-for-profit and business sectors to develop and implement service solutions. (d) Focus on quality while maximising service delivery. (a) Recruit and promote employees on merit. (b) Take responsibility for decisions and actions. (c) Provide transparency to enable public scrutiny. (d) Observe standards for safety. (e) Be fiscally responsible and focus on efficient, effective and prudent use of resources. … 69 MISCONDUCT - PUBLIC SERVICE AND OTHER PRESCRIBED GOVERNMENT SECTOR EMPLOYEES (1) In this section-- "government sector agency" means-- (a) a Public Service agency, and (a1) that part of the NSW Police Force comprising administrative employees under the Police Act 1990 , and (b) any other government sector agency prescribed by the regulations for the purposes of this section. "misconduct" extends to the following-- (a) a contravention of this Act or an instrument made under this Act, (b) taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994) against a person that is substantially in reprisal for the person making a public interest disclosure within the meaning of that Act, (c) taking any action against another employee of a government sector agency that is substantially in reprisal for a disclosure made by that employee of the alleged misconduct of the employee taking that action, (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). (2) The person who exercises employer functions in relation to an employee of a government sector agency is responsible for dealing with any misconduct by that employee in accordance with this section. (3) The government sector employment rules may deal with the following-- (a) misconduct by employees of government sector agencies, (b) the procedural requirements for dealing with allegations of misconduct by employees of government sector agencies (consistently with procedural fairness). (4) If, in accordance with those rules, there is a finding of misconduct by an employee of a government sector agency, the person who exercises employer functions in relation to the employee may take any of the following actions-- (a) terminate the employment of the employee (without giving the employee an opportunity to resign), (b) terminate the employment of the employee (after giving the employee an opportunity to resign), (c) impose a fine on the employee (which may be deducted from the remuneration payable to the employee), (d) reduce the remuneration payable to the employee, (e) reduce the classification or grade of the employee, (f) assign the employee to a different role, (g) caution or reprimand the employee. (5) Proceedings and actions under this section may be taken or continued despite the employee resigning or otherwise ceasing to be an employee of the agency concerned. Any such action may be expressed to be a termination of employment even if the person has ceased to be an employee. (6) This section does not apply to that part of the NSW Police Force comprising police officers or to any employees of a government sector agency excluded from this section by the regulations. Consideration Was the dismissal unjust? Allegation 1 - Intimidatory and bullying behaviour 1. Ms Charet found that Ms Dey had "engaged in behaviour of an intimidatory and bullying nature when, on 20 December 2021, [Ms Dey] made contact with Ms Kimberly Read by telephone and said words to the effect of: "you were from DCJ Parramatta and Roman (Ms Read's former partner) had contacted you. You went on to say you work with parents to keep custody issues out of court and you told Ms Read you were at her home. You repeatedly asked where Ms Read was and then told Ms Read that she had to give her children to Roman or she would be taken to court and be in big trouble." 1. It is important to note that it is only Ms Dey's telephone call to Ms Read which is said to have constituted behaviour of an intimidatory and bullying nature comprising Allegation 1. 2. According to the Macquarie Dictionary "intimidate" means to "make timid, or inspire with fear: overawe; cow" or "to force into or deter form some action by inducing fear: to intimidate a voter." The verb "bullying" means to "act the bully towards" or "to be loudly arrogant and overbearing". The definition of a bully is relevantly "a blustering, quarrelsome, overbearing person who browbeats smaller or weaker people" or "someone who intimidates or demeans another, especially as by repeated threats to their person, career, or social standing, or by harassment in person, on social networks, etc." [3] 3. "Bullying" is also defined in the Code as follows: "Workplace bullying is repeated and unreasonable behaviour directed towards an employee or a group of employees that creates a risk to health and safety (Work, Health and Safety Act (NSW) 2011)." 1. Such definition reflects the definition of workplace bullying in s 789FD of the Fair Work Act 2009 (Cth). 2. In finding that Ms Dey had engaged in behaviour of an intimidatory and bullying nature, Ms Charet was not required to be satisfied that certain elements were present, such as would be required for instance, if Ms Dey were charged with an offence. Rather, Ms Charet was considering whether Ms Dey had engaged in a type of 'inappropriate behaviour' in breach of cl 7 of the Code which requires employees to treat people with dignity and respect or s 7 of the GSE Act. Nevertheless, as cl 7 of the Code itself states, an allegation of intimidation is a particularly serious allegation and I consider that some guidance can be obtained from decisions which have considered what constitutes intimidation in the criminal context. 3. In Meller v Low [2000] NSWSC 75; 48 NSWLR 517 Simpson J considered what constituted intimidation within the meaning of s 60 of the Crimes Act 1900 (NSW), which concerns assault and other actions, including intimidation, against police officers. Her Honour referred to the absence of any definition of "intimidates" in s 60 and discussed the approach to statutory interpretation that should be applied (at [6]-[8]). She continued: "[9] With these principles in mind I turn to consider what construction ought be placed on the word "intimidates" as it is used in s 60(1). It is, first, an ordinary English word, readily understood, with no technical or complex or concealed meaning. The Oxford English Dictionary, 2nd Edition, and the Macquarie Dictionary are in agreement that "intimidate" means to render timid, to inspire with fear, to overawe, to cow, or to force to or deter from some action by threats or violence or by inducing fear. [10] One thing common to the ordinary notion of intimidation, and to all the dictionary definitions given is that the act that constitutes the intimidation has an effect on another person. "Intimidate" is a transitive verb. While particular behaviour may be intimidatory in its nature without causing actual fear or apprehension, there is no intimidation unless and until the behaviour has affected its object in the required manner, that is, by inducing fear or affecting conduct. Behaviour may have a capacity to intimidate, it may be intended or designed to intimidate, but it does not intimidate until it has worked its effect in the person to whom it is directed. Intimidation does not exist in the air. It does not occur until the effect is created. The concept is twofold: intimidation necessarily consists both of a particular form of conduct and the effect the conduct has on another person. There is no intimidation until another person has been intimidated. [11] I am therefore satisfied that on the proper interpretation of the plain words as used in s 60(1) the offence is not committed unless and until there is proof that a person was in fact intimidated. There is no suggestion in the section that an attempt to intimidate, or an intention to intimidate would be sufficient to constitute the offence. It would have been a simple matter so to legislate had that been the legislature's intention. It is therefore unnecessary to look to extrinsic materials in order to construe the section… .. [14] … I am satisfied that in order to sustain a conviction for intimidation of a police officer acting in the execution of his duty under s 60 it is necessary for the prosecution to prove that the police was put in fear or apprehension, was forced into or deterred from some action by being put in fear, or was overawed or cowed." 1. While Ms Dey was not accused of 'workplace bullying', that is bullying another employee or employees, cases which have considered what constitutes workplace bullying are helpful in gaining an understanding of what will be regarded as bullying. Consistent with the definition of bullying in the Macquarie Dictionary, the Fair Work Act and the Code, cases have held that there must be an element of repetition to the relevant behaviour to constitute bullying - see eg. Hammon v Metricon Homes Pty Ltd [2016] FWCFB 1914. 2. In light of the above I consider that for a finding to be made that Ms Dey had engaged in behaviour of a, intimidatory nature, Ms Dey must have engaged in behaviour capable of being intimidatory and that Ms Read was in fact intimated. For Ms Dey to have engaged in bullying she must have engaged in repetitive unreasonable behaviour, or at the least, acted in a manner that was overbearing and/or harassing. 3. Given their contemporaneity, and hence their creation before the parties realised that they would become evidence in respect of circumstances giving rise to Ms Dey's dismissal, I consider that the note prepared by Ms Read on 20 December 2021, and Ms Dey's text messages sent on that day, to be the best evidence of what actually occurred on that day, save for where other persuasive evidence indicates differently. 4. Ms Read's note and Ms Dey's first text message support Ms Charet's finding that Ms Dey telephoned Ms Read and said she works with parents to keep custody issues out of court and that Mr Carreno had contacted her for help. Ms Read's note and Ms Dey's evidence of her phone call with Ms Read, provided in her written statement dated 22 February 2022, also supports Ms Charet's finding that Ms Dey had told Ms Read that she had been at her home and that she wanted to meet with her and talk with her. Ms Dey did not dispute these matters. However, I do not consider that those matters alone, could constitute behaviour of an intimidatory and bullying nature. 5. The alleged facts that could potentially constitute 'behaviour of an intimidatory and bullying nature', alone or collectively, and with or without the undisputed matters referred to in the preceding paragraph, were that Ms Dey said to Ms Read that she was 'from DCJ', thereby inferring that she was contacting Ms Read in her official capacity; that she repeatedly asked where Ms Read was; and then told Ms Read that she had to give her children to Roman or she would be taken to court and be in big trouble. For the reasons that follow, I do not accept that Ms Dey said these things (save for that she did ask a number of times where Ms Read was) and even if she did say them, I do not accept that Ms Read felt either intimidated or bullied within the true meaning of those expressions. I do accept that Ms Read was bewildered and confused by the telephone call and at best, a little uneasy. Bewildered, confused and uneasy does not however, amount to intimidation and bullying. 6. In relation to the evidence given by Ms Read and Ms Dey, generally, where there was difference between them, I preferred the evidence given by Ms Dey. There are two reasons for this. First and foremost, and as I will demonstrate, Ms Dey's account was more closely supported by the contemporaneous documents than Ms Read's. Secondly, albeit more subjectively, I considered that Ms Dey was the more impressive witness, although that she was clearly very stressed throughout the hearing and struggled to compose herself at times. While it is the case that certain details of the events of 20 December 2021, for instance, that her daughter ran around to the other side of Ms Read's house, or that Mr Carreno was a witness to the phone call, only emerged during the proceedings, including in cross examination, I accept that Ms Dey did not include the impugned details in her responses to the Department or in her statement filed in the proceeding, as she did not consider such details to be relevant to the allegations made against her or she wrongly assumed that she had been clear about certain details in her original responses. None of the new details ultimately had any bearing on the allegations of misconduct. 7. It is the case that Ms Dey had developed, after 20 December 2021, a set view that Ms Read was the 'guilty party' in the family law dispute between Ms Read and Mr Carreno and that her 'case theory' was that Ms Read had used the fact that Ms Dey was employed with DCJ, to apply for an ADVO to try and prevent Mr Carreno from seeing his children [4] and/or that Ms Read had made a 'vexatious complaint' against her in order to cause some kind of difficulty for Mr Carreno. 8. There is no evidence that Ms Read in fact applied for an ADVO arising from the event on 20 December 2021, however as I will explain, there was evidence that suggested Ms Read did regard the fact that Ms Dey had disclosed that she was employed by DCJ as something she might use to her advantage in her dispute with Mr Carreno. On the other hand, despite Ms Dey's partisanship in respect of Ms Read and Mr Carreno, her accounts of the events of 20 December 2021 remained essentially consistent, including under cross examination. It is the case that there were some variances between in her accounts, however the overall narrative was consistent. Nevertheless, it is because of these understandable variances, which I consider were the result of failing memory rather than dishonesty, that I have preferred the contemporaneous documentary evidence. 9. Importantly, at no time throughout the investigation did Ms Dey deny that she told Ms Read that she worked "with DCJ". I accept that merely by mentioning this fact to Ms Read, and the experience she had as a result, in the context of the other matters being discussed during the telephone call, that there was a potential for Ms Read to confuse Ms Dey's personal and professional boundaries. However, I am satisfied that Ms Dey made it clear to Ms Read, and that Ms Read understood at the time, that Ms Dey was not contacting her in her capacity as a Department employee. 10. Ms Dey's evidence was that: 1. when Ms Read answered her phone call she introduced herself as an acquaintance of Mr Carreno, explained that she had only met him that morning, that she was relaying his message that he was interested in having an informal mediation with Ms Read, assisted by Ms Dey, and later in the call she reiterated that she was "only volunteering to do this on the request of a mutual friend"; 2. in response to inquiries from Mr Read as to how Ms Dey knew about supervised visits, Ms Dey informed Mr Read that she had "experience working with children, young people and families in [her] most recent employment with DCJ where [she] had assist the resolution of family contact issues"; 3. Ms Read then "embarked on making enquiries regarding reports she had lodged with DCJ" to which Ms Dey responded that she "could not answer to those queries, she would need to follow up with the reference numbers she may have been provided"; 4. Ms Read then asked about Ms Dey's credentials and Ms Dey "briefly informed her of skills [she] had employed at DCJ and advisory services to the Consortium made of City of Parramatta Council, Boronia Multicultural Centre and Hope connect advisory services that served families of victims experiencing domestic violence"; and 5. that in response to Ms Read's further enquiries about Ms Dey's identity, Ms Dey informed her that she could look her up on the internet through her company name, which had been "verified by ASIC." 1. Ms Dey's evidence was not shaken in cross examination. Moreover, it is supported by the content of Ms Dey's text message sent at 1:38pm, which is set out at paragraph [49] above. That text message stated in the first paragraph that Ms Dey volunteered to assist members of the community to assist resolve issues out of the court system. It is clear from the first two paragraphs of the text message that Ms Dey was contacting Ms Read as a volunteer and at the request of Mr Carreno. Ms Dey concluded the text by inviting Ms Read to share the message with her lawyer and to ask the lawyer to contact Ms Dey. Such an invitation would be most unlikely were Ms Dey seeking to improperly exploit her employment with the Department. 2. Critically, Ms Read's own note of the conversation confirms that Ms Read knew that Ms Dey was not calling in her capacity as a Department employee as she records that the woman who phoned her was "a JP Roman contacted, who works independently with parents to keep custody issues out of court" (my emphasis). 3. It is the case that Ms Read's note also records that the woman who called her was "from DCJ Parramatta" (as opposed to "with" or "employed by" DCJ), however the subsequent reference to the woman working "independently with parents to keep custody issues out of court" demonstrates that Ms Read knew that Ms Dey was not ringing her as a representative of the Department. 4. Plainly and understandably, Ms Read was perplexed by the call and it seems that she and her lawyer, Hayley, doubted that Ms Dey was in fact employed by DCJ. As Ms Read recorded in her note: "I phoned Hayley who said it sounded so suss. She said I should call DCJ directly to find out if it is legitimate (sic)." Importantly, Ms Read makes no reference in her note of being scared or intimidated by Ms Dey's call, but she does record that the call was 'strange'. She does not record that she told Hayley she was scared or intimidated. The evidence established that she did not call the police at the time. 5. The evidence did establish however, that Ms Read asked Ms Dey a lot of questions during the call, which I accept prompted the disclosure by Ms Dey that she worked for the Department and Hope Connect in an effort to persuade Ms Read that she was a suitable person with whom she could speak. The questioning by Ms Read about Ms Dey made Ms Dey feel uncomfortable and she tried to get Ms Read to "stop talking" and instead agree to meet with her. 6. The questioning of Ms Dey in this way does not indicate to me that Ms Read felt either intimidated or bullied by the phone call, but rather was comfortable making numerous inquiries of the caller. The impression I gained of Ms Read, who is schoolteacher, was of a quite capable person who would not be easily cowed. Nevertheless, Ms Read's questioning does support a finding that Ms Read was confused and perplexed by Ms Dey's sudden involvement in her family law dispute. 7. After Ms Read learned, sometime during the afternoon of 20 December 2021, that Ms Dey was in fact employed by the Department, her accounts of the phone call began to include references to being scared. Only in her statement filed in the proceeding did she say she felt intimidated. Thus: 1. in her email to Ms Vukovic dated 17 January 2022 Ms Read said had a "strange experience" with Ms Dey and the phone call "was quite scary"; 2. in her discussion with Ms Vukovic on 25 January 2022 she asserted that she "was feeling scared because Rada had said "I am from DCJ"; 3. in her phone call with Ms Downie of 28 January 2022, when Ms Downie said that they Department was treating her concerns as a complaint Ms Read said she "would like this to be a complaint as she was quite upset about what unfolded"; and 4. in her statement made on 16 March 2023 Mr Read stated that following her conversation with Ms Dey on 20 December 2021 she "felt intimidated and threatened" and to her "DCJ carries weight and at the time of the conversation, I was in dispute with my ex-partner, so I was scared by Ms Dey's call." 1. Ordinarily it would perhaps be understandable that on learning that Ms Dey in fact worked for the Department, for Ms Read's concerns to grow, despite Ms Dey's clarification that she was 'volunteering' and working 'independently', however the evidence also establishes that Ms Read was told on 20 December 2021 that Ms Dey was on leave from the Department, which ought to have made clear to Ms Read, very shortly after the phone call and if it was not already, that Ms Dey had not contacted her in any official capacity. Further, as I have alluded to, Ms Read gave some responses in cross examination that indicated that she regarded the fact that Ms Dey did indeed work for DCJ as something she might be able to capitalise on in her dispute with her ex-partner: Q. Ms Read, did you report this phone call that Ms Dey made to you to DCJ because you know DCJ carries weight and Ms Dey had said she works with DCJ and you knew you could file an application with the police, for example, to claim - to get an ADVO application and claim that [Mr Carreno] had utilised Ms Dey to-- to intimidate and threaten you? A. No. I didn't know at the time that I could capitalise on you phone calling me. When I phoned - I actually - I didn't call to complain about you. I called the tele-reporting line because I didn't know who else to call because I didn't understand why someone from DCJ was trying to force a mediation when there's been a history of domestic violence. … Q. By your own admission, you didn't file an application for an ADVO when the incident happened on the 20th, is that correct? A. Correct. [5] … Q. So I'll just ask that question again, Ms Read. You did file another application with the police for an ADVO on 2 February 2022, isn't that right? A. I don't know actually. I've spoken to the police many times and I don't know the dates. [6] 1. I infer from Ms Read's statement that did not know at the time that she could "capitalise" on Ms Dey phoning her, that this was a matter that occurred to her after she had phoned the Department and learned that Ms Dey did in fact work for the Department. As I have already observed, she was also told that Ms Dey was on leave, which supported Ms Read's own note of the conversation to the effect that Ms Dey was "working independently with parents to keep custody issues out of court." In light of these matters, I reject Ms Read's evidence that she felt intimidated and threatened by Ms Dey's call because Ms Dey said she was "from DCJ". 2. Ms Read gave other responses in cross examination that satisfy me that while undoubtedly Ms Dey told Ms Read that she worked with DCJ, she did not say she was "from DCJ" and that she had made it clear to Ms Read that she was not speaking to her in her official capacity. Such responses included the following: Q. Did I say that I was representing DCJ, I was calling from DCJ or that I was calling from my business? A. You did not say you were calling from your business, you said, "I work with DCJ." Q. Okay, so you admit that I said I work with DCJ and that I wasn't from DCJ? A. No. Q. You've just said that, ma'am? A. You told me you were - you're from DCJ, so "from" and "with" mean the same thing, if that's the technicality of "from" and "with". [7] … Q. So do you say that when I said I had come to your home with my daughter and then you also saw in your camera that I was there with my daughter did you still claim that I was in my work role performing my work duties? A. Yes, because you told me you were from DCJ and that's what alarmed me to call DCJ and find out why. Q. Just a few minutes ago, Ms Read, you also said you interchange the words "from" and "with"? A. Yes, and I explained for me they mean the same thing. [8] 1. I also note that it is not a matter of dispute that on learning that Ms Dey worked with the Department, Ms Read asked Ms Dey whether she had read the reports that had been filed with the Department regarding Mr Carreno and the children. All the evidence supports a finding that Ms Dey responded that she had not read the reports, that she could not 'answer to those queries' and that she attempted to steer the conversation away from that topic. Ms Read interpretated this as Ms Dey being 'cagey', however it is also consistent with Ms Dey being uncomfortable with the focus of the conversation being on her role at the Department because that was not the reason she was there. Steering the conversation away from her work with the Department is not consistent with the actions of someone trying to intimidate and/or bullying someone by improperly using their position as a Department caseworker. 2. As regards Ms Dey "repeatedly" asking where Ms Read was, I accept that Ms Dey likely did ask Ms Read this question a number of times as she was keen to try and facilitate an informal mediation between Ms Read and Mr Carreno. However, Ms Read's note confirms Ms Dey's account that when Ms Read said she would like time to discuss the matter with her lawyer, Ms Dey accepted this and the call concluded. Ms Read agreed in cross examination that this is what occurred: Q. So you do admit that you said you will provide my details to your lawyer? A. I said I would contact my lawyer to see if she thought I should mediate with you, yes. Q. Yes, and when you mentioned that, did Ms Dey cease the conversations with you? A. I think that's where it wrapped up. [9] 1. I accept Ms Read's evidence that the phone call lasted around 10 minutes and as soon as she said she wanted to speak with her lawyer, Ms Dey concluded the call. 2. Lastly, I am not satisfied to the required standard that Ms Dey said to Ms Read that she had to give her children to 'Roman' (Mr Carreno spells his name 'Romain') or she would be taken to court and be in big trouble. I accept however, that Ms Dey did say words to the effect that she had seen the parenting plan and that it was Mr Carreno's turn to have the children and that if Ms Read and Mr Carreno could not reach agreement with respect to the children, he would be filing a court application and the matter would 'escalate to court', and that the court would then make decisions about the children. 3. In making this finding I have had particular regard to Ms Read's note made on the day, which records that Ms Dey had said: "I was 'meant to take the girls to Roman today', she's seen the parenting plan, and it was his holiday time starting today and I 'need to be following the parenting plan or this will escalate to court and I won't have any say in what happens to the girls'. 1. Ms Read stated in cross examination that the parenting plan "had not been used" for two weeks at that point as she had the children had gone into "hiding". 2. When cross examined as to what Ms Dey had said, Ms Read gave the following evidence: Q. When did Ms Dey ask you to hand over your children to Mr Carreno? A. When did you ask me to give the children to him? You made it seem like I would be in big trouble if I didn't but I don't know that you said, "Give the children now." Is that what you're saying that you said? Q. No. You have alleged that I said you have to hand over your children to Mr Carreno? A. In the scheme of things, yes, yeah. Q. So when did that happen? A. During the phone call. Q. In what part of the conversation did you allege that I said you have to hand over the children to Mr Carreno? A. The conversation went for almost 10 minutes and it was quite a long time ago now, but during the phone call you made it clear your position as a DCJ officer was that I needed to give the children to him or he would go to court and I would lose control of the children and what happens. [10] … COMMISSIONER Q. What words did she use? What - put it in direct speech? A. So what was referenced was you said, "You will lose control of the children." I think you said some words to the effect of, "There will be big trouble," like, kind of intimidating language that made me feel threatened because in this case I did assume as a DCJ worker that you know a lot more about this than I do and I felt that you used that against me to force me into the mediation. [11] … APPLICANT Q. Yes, so you've said, these are your words, that I would be taken to court and be in big trouble? A. That's what you told me, yes. Q. No, you've said what I told you is that this will escalate to court? A. Yeah. Q. Yes, but in your complaint you had said that I had said I would be taken to court and be in trouble, big trouble, that is your interpretation, isn't that correct? A. I feel like you're saying the same two things. [12] … Q. But you said these words, that I need to be following the parenting plan or this will escalate to court, was my words, the words that I'd used with you? A. Yes, that's correct. [13] … Q. And I had also explained that where the parties are not able to reach consensus that I believe you to make decision for yourself would be lost because the court will make the decision for you, isn't that correct? A. Yep. Q. Yes, so is it fair to say that you thought you would be in big trouble because you can't make decisions for your children because it's your interpretation of what I had said? A. Not quite. You had made it seem during the phone call that if I didn't agree to the mediation that I was going to make things a lot worse for myself and it would play out negatively in court and that would be the trouble. Q. Okay, so that's your interpretation of what I said, that what I had said was that if parties are not able to reach a consensus when the matter goes to court, the court makes the decisions for the parties? A. I think the words closer to is "You will lose control of your children". Q. Okay but those were not the words that I had said. That's your understanding of what I had said, isn't that right? A. No, that's what I think that you said, "You will lose control of the children". Q. So you think that that's what I have said? A. That's what I recall what you said. 1. Obviously, it is difficult, many months after an event, for people to recall precisely what was said during a 10-minute telephone conversation. Nevertheless, Ms Read's responses indicate to me that Ms Dey did not say, in terms, that Ms Read had to "give her children to Roman or she would be taken to court and be in big trouble", but that this was how Ms Read interpreted what Ms Dey did say. In coming to this view, I have also had regard to the content and tone of the text message Ms Dey sent to Ms Read shortly after their phone conversation. It wholly supports the conclusion that Ms Dey was attempting to persuade Ms Read to participate in an informal mediation to help resolve the contact issues, including with the involvement of Ms Read's lawyer if she wished, in order to avoid the uncertainties of litigation, and that she did not say to Ms Read that she had to give her children to Mr Carreno or she would be taken to court and be in big trouble. While this may have been how Ms Dey's remarks were interpreted by Ms Read, that is not what Ms Dey said. 2. For the reasons set out in paragraphs [118] to [142] I find that on 20 December 2021 Ms Dey made contact with Ms Read by telephone and said words to the effect of (using the tense used in Ms Charet's letters of 10 February 2022 and 4 July 2022): "Roman had contacted you and asked you for advice and assistance regarding contact issues, you work independently with parents on a volunteer basis to help keep custody of issues out of court, you also work with DCJ and represent DCJ in section 86 mediations to resolve contact issues outside the court system. You told Ms Read you had been at her home to see if she would like to explain her side of the story and find a way forward and asked a number of times where Ms Read was. You told Ms Read that you had seen the parenting plan and that it was Romain's turn to have the children and that if Ms Read and Mr Carreno could not reach agreement with respect to the children, he would be filing a court application and the matter would 'escalate to court', and that the court would then make decisions about the children." 3. As I remarked at the outset of this decision, Ms Dey was unwise to have said any of this to Ms Read, but in particularly she should not have mentioned her employment with DCJ. However, I do not consider that making the above statements were intimidatory or bullying in nature and I do not consider that Ms Read was in fact intimidated or bullied. Consequently, I am not satisfied to the requisite standard that Ms Dey "engaged in behaviour of an intimidatory and bullying nature". The finding that she had so engaged was wrong and hence her dismissal for that reason was unjust. Allegation 2 – Continuing to Intimidate by sending three text messages 1. Ms Charet found that on 20 December 2021, after the conversation as detailed in Allegation 1, Ms Dey continued to attempt to intimidate Ms Read when she "sent her three (3) text messages (the first was sent at 10:24am) in which [Ms Dey] again referenced [her] employment with DCJ and gave Ms Read a 'timeline' to respond to [her] by 3:00pm the following day (21 December 2021)." 2. This allegation cannot be sustained. 3. Firstly, the first text message was sent at 1:38pm, not 10:24am. 4. Secondly, the first and third text message was sent in response to a request by Ms Read for further information. 5. Thirdly, the text messages could not be construed as an attempt to intimidate Ms Read, upon a fair reading. 6. The first text message was sent immediately after the phone call between Ms Dey and Ms Read. Ms Read's note prepared on 20 December 2021 records that Ms Read concluded the call as follows: "I said I'd speak to my lawyer and asked her to send me her details." 1. For the reasons I have already explained, I consider Ms Read's note and Ms Dey's text messages to be the best evidence of what occurred on the day. Consistent with Ms Read's note, in her statement filed in the proceeding Ms Dey stated that: "Ms Read then informed she was also with her children and needed some time to process this and asked if I could summarise this information for her as she wished to discuss it with her lawyer. When Ms Read informed [me] she had a lawyer, I realised she did not need any informal support from me. I said I was happy to summarise what we had discussed and sent a text message to Ms Read." 1. I am satisfied that Ms Read solicited the first text message. 2. The context of the text message is set out in paragraph [49]. The tone and content of the text message is calm and professional. It does refer to the fact that Ms Dey works "with DCJ in Parramatta and represent[s] DCJ in Section 86 mediations to resolve contact issues outside the court system." However, as I have already discussed, it is clear from the first two paragraphs of the text message that Ms Dey was contacting Ms Read as a volunteer and at the request of Mr Carreno. Ms Dey's reference to her work with DCJ was to explain that she had some experience in helping to resolve family law disputes outside of the court system. Ms Dey states she is "happy to meet" with Ms Read, including with her six-year-old daughter, if that would put Ms Read "at ease". She does not demand to see her and makes no threat. I do not consider that Ms Dey's statement that as [formal] "mediation has failed, the next step is to lodge a court application. It will not be possible to get orders by consent as you both cannot come to agreement and adhere to it" constitutes an "attempt to intimidate". 3. Ms Dey concluded the text by inviting Ms Read to share the message with her lawyer and to ask the lawyer to contact her. That again could not be construed as the action of someone attempting to intimidate Ms Read. 4. In relation to the second text message, which was sent about 40 minutes after the first text message, Ms Dey stated she would wait to her from Ms Read or her lawyer until 3pm the next day otherwise: "I will assume you are not interested in meeting with me" and she would advise Mr Carreno as to the next course of action. I do not consider that this email contained any kind of threat or attempt to intimidate Ms Read. Ms Dey made no contact with Ms Read after 20 December 2021. There is no evidence that Ms read was in fact scared or intimidated by the second text message. 5. The third and final text message was sent in response to a text message sent to Ms Dey by Ms Read at 4:48pm asking for the name of Ms Dey's business and the ABN of the business. The email commences with a statement of gratitude for the earlier emails: "Thanks Rada, I have contacted my lawyer." Ms Read was cross examined by Ms Dey in relation to this response: Q. … About two and a half hours after Ms Dey's second message to you that she will not contact you if you're not interested in speaking to her you came to Ms Dey in a follow-up text message, isn't that true? A. Did you say I thanked? Q. Yes? A. Let me just check. Yes, I said, "Thanks, Radhiga, I've contacted my lawyer." Q. Yes. Why did you thank Ms Dey, Ms Read, when you say that you felt intimidated and threatened by the call? A. Because I'm polite and professional. Q. Okay. You didn't consider that your lawyer could have followed up with Ms Dey? A. My lawyer billed by the minute so, no. Q. Okay, so you say that even though you were intimidated and felt threatened, it is your nature to be polite and thank the person who has intimidated and threatened you? A. At this stage I knew I would be declining and I hadn't revealed my location and I was-- Q. Sorry? Could you just-- A. I was confident that you weren't going to find me and force me into the mediation anymore. Q. My question to you, Ms Read, is that you said you are polite? A. Yes. Q. And my question to you was is it your nature to be polite to a person who you say intimidated and threatened you and only a short while previously you allege had asked to hand over your children to your ex-partner? A. In this regards politeness can be a shield and a form of distance so, yes. 1. The allegation against Ms Dey was that she attempted to intimidate Ms Read by the subsequent text messages and not that she did in fact intimidate Ms Read, and hence it is not relevant whether Ms Read was in fact intimidated by the text message. Nevertheless, it is clear from her responses that she was not intimidated by the text messages. Given their content, there was no reason for her to feel intimidated. 2. The text messages were not intimidatory in nature and two of them were sent in direct response to a request by Ms Read that they be sent. Allegation 2 cannot be made out to the requisite standard and hence Ms Dey's dismissal for that reason was unjust. Allegation 3 – Placing own child at risk 1. Ms Charet found that on 20 December 2021 Ms Dey engaged in behaviour which may have placed her own (approximately six-year-old) child at risk when she took her with her to the premises of Ms Read and indicated she would take her with her whilst she conversed with Ms Read in relation to the issues as detailed in Allegation 1. 2. Ms Dey complained during the investigation that she did not understand what risk she was alleged to have exposed her daughter to and consequently she was denied procedural fairness. Ms Dey's complaint is well founded. It remains entirely unclear exactly what the nature of the alleged risk was. 3. The only detail regarding the risk is contained in Ms Charet's statement of 15 March 2023 filed in the proceeding (i.e. well after the investigation) at [23(f)]: "… Ms Dey showed poor judgment and put a child into a situation that may have had have a bad outcome." 1. Exactly what that 'bad outcome' might have been was not explained, although Ms Charet did say in cross examination that it may have been an "unsafe situation." [14] The likelihood of that 'bad outcome' was not established. 2. As Ms Dey noted in her response to the allegations dated 25 July 2022 "there is 'risk' even in walking on the kerb, from falling and hurting oneself or from a car swerving out of control on the road and hitting pedestrians." She asked for the nature of the risk to be identified. It was not. 3. It may be supposed that the Department considered there to be a risk of family violence of some kind ensuing in circumstances where Ms Read and Mr Carreno were in dispute about contact arrangements; Ms Read had reported to the Department that Mr Carreno had engaged in domestic violence (although she confirmed there were not ADVOs, and aside from Ms Read's statements, no evidence was led to support this allegation); and that Ms Read's child could have been witness to or got caught up in, such violence. Ms Charet gave evidence that this was her concern in cross examination. However, inferring the possibly of such violence, without sufficient evidence to make such an inference, is precisely the kind of fact finding that was regarded as unreasonable in Byrne v Australian Airlines Ltd. 4. Given the seriousness of the allegation and the serious consequences that were to flow from a finding that the allegation was sustained, and the fact that the conduct occurred when Ms Dey was not at work, the Department needed to clearly articulate the risk in order to ensure that Ms Dey was able to properly respond to the allegation. Had the risk been better particularised, she might have been able to, for instance, address the likelihood of family violence actually occurring, assuming that was the identified risk, or provide other information as to why her daughter was not in fact exposed to such a risk and/or why exposing her daughter to such a risk while she was not on duty, did not reflect on her capacity to act as a caseworker. 5. However, the lack of particularisation goes further than denying Ms Dey procedural fairness – it results in there not being a valid reason to dismiss Ms Dey. 6. Allegation 3 involves action Ms Dey took, while on leave, in respect of her own child. For such action to constitute a valid reason to terminate her employment the precise nature of the risk and its connexion to her job needs to be clearly identified. Allegation 3, as expressed, describes commonplace, unremarkable activity. 7. Of course I accept that the conduct of an employee employed by the Department, whose role is to work with and ensure the safety of young children, while on leave, may constitute misconduct sufficient to justify termination of their employment, but in my view, and consistent with Rose v Telstra [1998] AIRC 1592, it would need to be conduct of a very serious kind; relate to their role with the Department; cause serious damage to the employment relationship and the interests of the employer and it would need to be established to the requisite standard. This was not the case here. 8. I acknowledge that Ms Dey was told by Mr Carreno immediately before she visited Ms Read's house that (allegedly) Ms Read had made false allegations against him to the police hoping to get an ADVO, which was declined several times and that Ms Read had installed cameras and he did not want to "murky the waters just before he intended to lodge his family law court application" so he would not go to the door with her, and that this information, as I have already observed, ought to have rung some alarm bells with Ms Dey. However, these statements alone do not establish that Ms Dey in fact placed her own child at a real and appreciable risk of observing or being caught up in an episode of family violence – assuming that is the risk to which the Department alluded. 9. Allegation 3 as framed does not constitute a valid reason for Ms Dey's dismissal and was not established on the evidence and in those circumstances her dismissal for that reason was unjust. Allegation 4 – Engaging in secondary employment and unpaid work without approval 1. Ms Charet found that Ms Dey had engaged in activities for the "The Vanguard Institute" without approval for secondary employment and unpaid work. 2. This allegation cannot be sustained. 3. Firstly, the evidence established that the only work Ms Dey had undertaken for The Vanguard Institute Pty Ltd" was 'administrative and governance' tasks with the respect to setting up the company. It has never traded, and no income has been earned by the company. I do not consider that setting up and maintaining a company that does not trade could be regarded as 'secondary employment'. 4. While the definition of 'secondary employment' under the Department's SEUW Policy included "owning, operating or being a director of a private business" the evidence established that The Vanguard Institute, as at 20 December 2021 or at any time prior to that date, did not operate a business. 5. Secondly, even if the company had commenced trading, it would be necessary to show that Ms Dey was doing work – whether paid or unpaid - under the auspices of the company. It is clear that Ms Dey only provided the name of her company to Ms Read so that Ms Read could confirm she was a "genuine person". As Ms Read confirmed in cross examination: "You [Ms Dey] did not say you were calling from your business, you said, "I work with DCJ." [15] 1. There is no evidence that Ms Dey agreed to assist Mr Carreno as a part of business transaction, via The Vanguard Institute or otherwise. 2. Thirdly, the evidence was that Ms Dey was working less than 35 hours a week. Part-time and casual employees are only required to notify DCJ of any secondary employment. Consequently, she was not required under SEUW Policy to seek "approval" before engaging in any secondary employment. 3. While Ms Dey was not dismissed for having engaged in unpaid work, at large, without approval (the allegation was specifically in relation to work performed for The Vanguard Institute), I would not be persuaded that Ms Dey's activities on 20 December 2021 constituted 'unpaid work' within the meaning of the SEUW Policy in any event. It is the case that activities done pro-bono where the employee's time, skills or expertise is given free-of-charge, can constitute unpaid work within the meaning of the Policy. However, all of the examples given in the Policy of such work indicate that more than one instance of pro-bono activity would be required before an employee would be obliged to lodge a SEUW form. Ms Dey had lodged such a form in respect of her volunteer activities for Hope Connect and had obtained approval for such work. 4. It is the case that Ms Dey referred to her experience gained at the Department when pressed by Ms Read as to her credentials, however, I am satisfied that Mr Carreno was unaware that Ms Dey worked for the Department until after he had enlisted her assistance. It was not the reason why he asked for her help. 5. Ms Dey did not engage in activities for The Vanguard Institute and as a part time employee she was not obliged to obtain "approval" for any such activities in any event. In the circumstances her dismissal on the basis of Allegation 4 was unjust. Allegation 5 – Failure to Declare and Properly Manage Conflict of Interest 1. Ms Charet found that Ms Dey failed to declare and properly manage a conflict of interest between her role with the 'The Vanguard Institute' and her employment as a caseworker with the Department. 2. The exact nature of the alleged conflict of interest was not particularised or explained. As explained above, the only role Ms Dey had with respect to The Vanguard Institute was as its director, secretary and member and 'administrative and governance' tasks with the respect to setting up the company. The company had not traded, and no conflict of interest had arisen with respect to her role with her dormant company and her employment with the Department. 3. Ms Dey did not use her position at the Department to gain a benefit for herself. She did attempt to use the fact that she had gained relevant experience at the Department to persuade Ms Read to meet with her and Mr Carreno, for the benefit of Mr Carreno, which was unwise, and resulted in some understandable confusion on the part of Ms Read. However, as I have already found she did not use her position to intimidate, threaten or bully Ms Read and she made it clear that she was not speaking with Ms Read in any official capacity. She did not, as the Respondent submitted, use "the weight of the Respondent to try and "force" Ms Read into a discussion because the Applicant was on a mission to assist Mr Carreno." Rather she 'traded on' her experience with the Department in an attempt to persuade Ms Read she was a good person to try and help resolve the contact issues. Such conduct did not warrant termination, but in any event, that is not the conduct of which she was accused and found to have engaged in. 4. I am not satisfied that Ms Dey failed to declare and properly manage a conflict of interest between her role with the 'The Vanguard Institute' and her employment as a caseworker with the Department and consequently her dismissal on the basis of Allegation 5 was unjust. Allegation 6 – Breach of s 7 of the GSE Act 1. Ms Charet found that Ms Dey's "actions, conduct and behaviours failed to uphold the Government Sector Core Values and principles of Integrity, Trust, Service and Accountability" as prescribed within s 7 of GSE Act. 2. In the absence of any particularisation of the alleged "actions, conduct and behaviours" it may be inferred that Allegation 6 relates only to the actions, conduct and behaviour referred to in Allegations 1 – 5. I have found that those allegations cannot be sustained. Consequently Allegation 6 cannot be sustained and Ms Dey's dismissal on the basis of Allegation 6 was therefore unjust. 3. I also note that it is not clear to me, if Allegations 1 – 5 had been made out, precisely what sub-sections of s 7 of the GSE Act were said by the Department to have been contravened. When an employee's livelihood is at stake it is beholden upon the employer, as a matter of fairness, to clearly articulate the basis of any decision to terminate the employee. 4. For completeness I note that Ms Dey submitted, in her 'Outline of Applicant's Final Submissions' that her dismissal was unjust because even if the allegations were sustained, they did not meet the definition of misconduct within the meaning of s 69 of the GSE Act. It is not necessary for me to decide this point, however, I consider that a finding that Ms Dey had in fact intimidated and/or bullied Ms Read by using her status as an employee of the Department to do so, even when on leave, would be capable of constituting misconduct within the context of s 69 of the GSE Act. An error of judgment, particularly an isolated and uncharacterisic one, would not: McDiarmid v Commissioner of Police [2012] NSWIRComm 100 at [125] (Boland J, President). Was the dismissal reasonable? 1. Ms Dey submitted that she was denied procedural fairness, not only in respect of the lack of particularisation of Allegation 3 and 5, but also that she was not afforded an opportunity to properly respond to the allegations and that the Department failed to make inquiries of Mr Carrreno. Otherwise, Ms Dey made no submissions specifically directed to the reasonableness of her dismissal. 2. As I have already indicated, Ms Dey was denied procedural fairness in respect of Allegation 3 and possibly in relation to Allegation 5, as it remains unclear exactly what the conflict of interest was that Ms Dey failed to manage. These matters alone make her dismissal on the basis of these Allegations unreasonable. 3. I do not consider that the failure to make of inquiries of Mr Carreno regarding the events of 20 December 2021 was procedurally unfair. Ms Charet's letter of 10 February 2022 contained the following direction to Ms Dey: This is a confidential process. You are directed not to discuss this matter with any other DCJ employee, with the exception of your line management, People Business Partner, an officer of CaPS or myself. You may disclose this information to your legal representative, union representative or medical practitioner for the purpose of obtaining advice and/or support. This is to protect the integrity of the process, your privacy rights and the privacy rights of any other person who may become involved in this matter. You should be aware that a failure to follow the confidentiality requirements may result in additional allegations. 1. It is not entirely clear from this direction whether Ms Dey was at liberty to speak with and obtain a statement from Mr Carreno, however it seems Ms Dey thought this was the case. She assumed, wrongly, that Ms Carl and Ms Charet would do so. They were not obliged to do so in this instance, but by not doing so they ran the risk that their factual findings would be shown to be wrong. 2. If Ms Dey considered that Mr Carreno was in a position to support her by giving evidence as to what occurred on 20 December 2021 she should have obtained such evidence herself and provided it to the Department. If she needed permission to do this, she ought to have sought such permission. If she was denied permission and the fact finders declined to make inquiries of Mr Carreno, the fairness of the process may then have been questioned. I note that if the Department had have interviewed Mr Carreno they would have obtained, at the least, another view as to the tone and nature of Ms Dey's phone call with Ms Read, confirmation that he did not engage Ms Dey on a commercial basis, through the Vanguard Institute or otherwise, that he did not know she worked for the Department at the time of first speaking with Ms Dey, and the general circumstances by which Ms Dey came to be involved in the matter. 3. Ms Dey otherwise was given an opportunity to respond to the allegations and, once the findings were made, to make submissions in respect of the punishment to be imposed. She took advantage of those opportunities. Thus, I do not accept that Ms Dey was generally denied procedural fairness. 4. However, there are two further matters that indicate that Ms Dey's dismissal was unreasonable. 5. Firstly, despite Ms Dey's long and unblemished employment record and there being no evidence of Ms Dey having previously acted in a dishonest way, the Department was not prepared to accept, or at least give significant weight to, Ms Dey's account of the events of 20 December 2021 – in particular that she had made clear to Ms Read that she was not acting in any official capacity and had not made any demands of or threats to Ms Read – and preferred Ms Read's word and alleged sensibilities (as important as they were) over the word and interests of its trusted employee, Ms Dey. 6. It was unwise for Ms Dey to involve herself in the family affairs of a stranger. It was even more unwise for her to refer to her position with the Department when she conversed with Ms Read and when she subsequently messaged Ms Read. It undoubtedly left Ms Read perplexed, confused and uneasy. However, the Department's approach was to prefer Ms Read account that she was 'scared' by the phone call, rather than to listen to what Ms Dey had to say about the encounter, and in particular that she had made it clear that she was not speaking to Ms Read in an official capacity, and then to view the text messages with an open mind. Had they done this, they should have come to the view that I have, and then taken more appropriate action in respect of those of Ms Dey's actions which were established. 7. While the Department must of course be vigilant to protect the Department's reputation, conflicts of interest and the interests of the public more broadly, this does not mean that it should take an uncritical approach to matters reported to it by members of the public or otherwise discount the evidence given by an otherwise loyal and honest employee. Such an employee deserves at least the benefit of the doubt. 8. Secondly, I consider it was unreasonable for Ms Charet not to have given any weight to Ms Dey's acknowledgement (the details of which I set out in [65], [71] [179] and [80] above), that she should not have become involved at all in the dispute between Ms Read and Mr Carreno, that she understood why the Department had concerns about the event, and that she understood that members of the public would always see her as a representative the Department. 9. Ms Charet gave evidence in the proceeding that the reasons why she decided to terminate Ms Dey's employment included that: 1. "Ms Dey had shown by her responses little insight into her actions and that such conduct was not conduct expected of an employee of DCJ"; 2. "Ms Dey did not understand that she had acted inappropriately by engaging in conduct that put the Department's reputation in working with and protecting vulnerable people within the community at risk by approaching Ms Read, representing she was from the Department and seeking to engage Ms Read in a discussion regarding her personal circumstances"; and 3. "the potential exposure to the Department given that Ms Dey did not accept any responsibility for her actions." 1. These reasons are not supported by the evidence. 2. It is the case that Ms Dey continued to maintain that Ms Read had made a 'complaint' about her in her to vex Mr Carreno in some way. Given Ms Read's evidence regarding 'capitalising' on the fact that Ms Dey worked for the Department, Ms Dey was perhaps justified in maintaining this view. But in any event, maintaining that view does not mean that she did not accept any responsibility for her actions or otherwise lacked insight. The evidence suggests otherwise. 3. I also note that the statements and submissions filed by Ms Dey in the proceedings are replete with statements of remorse and regret for exposing the Department to criticism. The Department continued to maintain that Ms Dey's denial of the allegations per se constituted a failure to accept that her behaviour was lacking. Ms Dey was entitled to deny the allegations and has now been vindicated. It is entirely appropriate for a sacked worker to deny baseless allegations, while at the same time accepting responsibility for the conduct that actually occurred. 4. In the circumstances I consider that Ms Dey's dismissal was unreasonable. Was the dismissal harsh? 1. Ms Dey made the following submissions in her 'Outline of Applicant's Final Submissions': "28. I have had an unblemished employment history whilst in the NSW public service and I have been nominated for Awards and received accolades for my work for the respondent. This unblemished record should mitigate against my termination. … 31. I am the sole income earner for my family. The termination has had dire consequences on my family financially. 32. Both of my children are under ten. Both have special needs. Both require significant support. The support, in many instances, requires me to provide finance. 33. I have attempted to find employment at a similar level to my role with the respondent, to no avail. My age and carer responsibilities are further barriers to me being successful in finding alternative appropriate employment. … [35] Given my personal and economic position, I submit that have sufficient mitigating circumstances, and the dismissal was harsh. 1. Ms Dey gave evidence to support these submissions which was unchallenged by the Department. The Department made no specific submissions against Ms Dey's submissions that her dismissal was harsh. 2. While I have found that Ms Dey did not engage in the alleged conduct, she did engage in conduct which rightfully gave the Department cause for concern. Ms Dey demonstrated a lack of judgment and naivety in respect of matters in which she had extensive experience, namely family disputes. However, some recognition should be given to the fact that Ms Dey was on extended leave from the Department at the time and given her unblemished employment history, it is reasonable to assume that she would act differently when at work. Consideration should also be given to the fact that Ms Dey was clearly trying to help both Mr Carreno and Ms Read, albeit that such efforts might be regarded as misguided. 3. Ms Dey should not have caused confusion or sought to gain an advantage for Mr Carreno by referencing her employment with the Department, however, I do not consider that in all the circumstances termination of her employment was a proportionate response to Ms Dey's conduct. Such conduct, engaged in while she was not on duty with the Department and viewed in its entirety, was not so serious as to warrant dismissal, particularly given Ms Dey's unblemished work history. 4. I find that Ms Dey's dismissal was harsh having regarding to the nature and purpose of her conduct on 20 December 2021, the length and quality of her service to the Department and the fact that she the sole income earner for her family of two young children with special needs, one of which she fosters. Remedy 1. I find that Ms Dey's dismissal was harsh, unreasonable and unjust and she is entitled to a remedy pursuant to s 89 of the Act. 2. Ms Dey seeks re-employment to another position pursuant s 89(2) of the Act; remuneration that she would have received but for being dismissed pursuant to s 89(3) and an order that her employment be taken not to have been broken by her dismissal pursuant to s 89(4). In the alternative, she seeks compensation pursuant to s 89(5). 3. There are a number of difficulties with the primary relief sought by Ms Dey. 4. First and foremost, as I explained at [98] and following, re-employment may only be orders if I consider it would be impracticable to reinstate Ms Dey. I do not consider that it would be impracticable to reinstate Ms Dey. 5. Neither Ms Carl nor Ms Charet gave any evidence of not being able to work with Ms Dey, that trust and confidence has been eroded to such an extent that the relationship is irretrievable or otherwise gave any evidence that would support a finding that Ms Dey's reinstatement would be impracticable. 6. Ms Charet gave the following evidence: Ms Dey has shown that she is not able to comply with her obligations as an employee of DCJ. Ms Dey has shown that her judgment and decision making is poor. To work in a role with the community, and employee of DCJ must be above reproach. Ms Dey has intimidated a member of the public and misused her position by representing herself as an employee of DCJ while involving herself in a private matter. She has also shown that she is unable to comply with the policies of the DCJ. 1. Those views must fall away in light of my finding that Ms Dey did not engage in the alleged conduct. 2. Even if I were to be persuaded that reinstatement was not practicable, I can only order re-employment to another position that the employer has available and that, in the Commission's opinion, is suitable. In her amended application Ms Dey sought re-employment to: 1. a suitable role within NSW Police located in Parramatta; 2. a child wellbeing unit role with Police if able to work remotely; 3. Anti-Discrimination NSW as a conciliation officer; 4. A child wellbeing unit role within the Department of Education. 1. So far as I am aware, none of those roles whereby the Department would be the employer. There is no evidence of any roles which the Department has available, which might be suitable for Ms Dey. 2. In the circumstances, I do not propose to make any order pursuant to s 89 of the Act at this stage. Instead, I propose to allow the parties an opportunity to confer, and if need be, file further evidence and submissions as to the appropriate remedy. Failing the parties reaching agreement or applying for different relief, I propose to make an order that Ms Dey be reinstated, that her employment be regarded as continuous and that she be paid remuneration to reflect the amount she would have received, but for being dismissed, less any amounts she has earned for the provision of her personal services during the period she was dismissed. Orders 1. I make the following orders: 1. I direct the parties to confer on remedy in light of these reasons. 2. The parties are directed to advise the Commission by no later than 21 September 2023 whether agreement on remedy has been reached or whether the parties wish to be heard further in relation to remedy. 3. If the parties reach agreement as to remedy they should submit short minutes of order which I may make in chambers. 4. If the parties wish to be heard further in relation to remedy, I will list the matter for directions. 5. If the parties do not advise the Commission of their intentions pursuant to Order 2, I will make final orders in chambers as indicated in paragraph [219]. Janet McDonald Commissioner ********** Endnotes 1. Tcpt, 14 June 2023, p 15(29)-(32). 2. Exhibit R2, p 22. 3. Macquarie Dictionary, online ed, September 2023. 4. Tcpt, 14 April 2023, p 3(1) – (3). 5. Tcpt, 14 April 2023, p 96(8)-(48). 6. Tcpt, 14 April 2023, p 97(19)-(22). 7. Tcpt, 14 April 2023, p 101(47) – 102(6). 8. Tcpt, 14 April 2023, p 104(8)-(16). 9. Tcpt, 14 April 2023, p 92(23) – (29). 10. Tcpt, 14 April 2023, p 93(5)-(22). 11. Tcpt, 14 April 2023, p 94(7)-(13). 12. Tcpt, 14 April 2023, p 106(15)-z924). 13. Tctp, 14 April 2023, p 106(41)-(43). 14. Tcpt, 14 June 2023, p 21(20). 15. Tcpt, 14 April 2023, p 101(49) Amendments 11 September 2023 - Paragraph 44 - The word "little" has been deleted. 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: 11 September 2023