Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (obo Saraceno) v Commissioner of Police [2024] NSWIRComm 1001 Hearing dates: 19, 20 June 2023, 5 July 2023 Date of orders: 23 January 2024 Decision date: 23 January 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: Both proceedings are dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes – Power of Commission to make a determination pursuant to s 175 of the Industrial Relations Act 1996 – Whether factual bases for relief sought established – Whether communications between union delegate and union subject to legal professional privilege – Relevance of establishing a collective element to the dispute to the exercise of discretion to grant relief – No basis to grant relief EMPLOYMENT AND INDUSTRIAL LAW —Victimisation - Threatened termination of employee for disclosing confidential information to union as part of employee's duties as union delegate, including as a witness in proceedings for a new award – Employer audited employees' emails and discovered disclosures – Whether substantial and operative reason for investigating and finding employee had engaged in misconduct was his role as delegate and/or his participation in award proceeding - Consideration of 'reverse onus' provided for in s 210(2) of the Industrial Relations Act 1996 – Relevance of the correctness of the belief held by person responsible for taking detrimental action against employee to determining whether onus discharged – Consideration as to whether other persons had an material effect on decisions of those responsible for taking detrimental action – Presumption that detrimental action taken for proscribed reason displaced by direct evidence from those who took the detrimental action as to their motivations which was accepted - application dismissed Legislation Cited: Evidence Act 1995 (NSW), s 117 Fair Work Act 2009 (Cth), ss 340, 341, 361 Government Sector Employment Act 2013 (NSW), s 69(4) Government Sector Employment (NSW Police Force) Rules 2017 (NSW), rr 44-46 Industrial Relations Act 1996 (NSW), ss 6, 130, 131, 136, 137, 138, 163, 210, 213, 214 Police Act 1990 (NSW), ss 5, 81G, 218 Police Regulation 2015 (NSW), reg 76 Cases Cited: Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 Australian Municipal, Administrative, Clerical and Services Union v Commissioner of Taxation [2022] FCA 1225 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Primo Foods Pty Ltd; Primo Foods Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW South Wales Branch [2023] NSWIRComm 1076 AWB Ltd v Cole (No 5) [2006] FCA 1234; 155 FCR 30 Basan v Commissioner of Police (No 3) [2023] NSWIRComm 1028 Bluescope Steel Limited (formerly BHP Steel Limited) v The Australian Workers' Union, New South Wales (No 2) (2005) 141 IR 329; [2005] NSWIRComm 36 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 Capotosto v Uinta Beds t/as Sleep City [2001] NSWIRComm 219 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; 238 FCR 273 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046; 69 AILR ¶102–860 Fire Brigade Employees' Union of New South Wales v Commissioner of Fire and Rescue New South Wales (PAD Program) [2021] NSWIRComm 1041 Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance [2017] NSWIRComm 1036 Jaggi v Health Secretary in respect of the Western Sydney Local Health District [2022] NSWIRComm 1032 J-Corp P/L v Australian Builders Labourers Federated Union of Workers Western Australian Branch [1992] FCA 793; 38 FCR 452 Jones v Dunkel [1959] HCA 9; 101 CLR 298 Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064 Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064 Leahey v CSG Business Solutions (Aus) Pty Ltd [2017] FCA 1098 Paula Lee and Ausgrid (No 6) [2013] NSWIRComm 62; 237 IR 63 Police Association of New South Wales (obo Tomlinson) v Commissioner of Police [2023] NSWIRComm 1053 Police Association of New South Wales v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1095 Public Service Association of New South Wales v Teterycz [1998] NSWIRComm 415 Qantas Airways Ltd v Transport Workers' Union of Australia [2022] FCAFC 71; 292 FCR 34 Robertson v Singtel Optus Pty Ltd [2023] FCA 1392 Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431; 320 IR 198 Secretary of the Ministry of Health v New South Wales Nurses and Midwives' Association [2022] NSWSC 1178; 320 IR 249 Transport Workers' Union of Australia v Qantas Airways Limited [2021] FCA 873; 308 IR 244 Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 Unions NSW v Carter Holt Harvey Wood Products Australian Pty Ltd (2006) 149 IR 361; [2006] NSWIRComm 2 Williams v Australian Telecommunications Commission (1988) 52 SASR 215 Wong v National Australia Bank Limited [2022] FCAFC 155; 318 IR 148 Texts Cited: P Young and H Selby, Rose's Pleadings Without Tears in Australia, (3rd ed, 1997, The Federation Press) S Dunstone, A Practical Guide to Drafting Pleadings (2nd ed, 1996, LBC Information Services) Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Notifier/Applicant) Commissioner of Police (Respondent) Representation: Counsel: P Lowson with I Chatterjee (Notifier/Applicant) M Watts with E Baxter (Respondent) Solicitors: Kingston Reid (Respondent) Other: A McRoberts (Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales) File Number(s): 2023/159375 2023/159381 Publication restriction: Nil DECISION DECISION Introduction Statutory Framework The PSA's Case and the Relief Sought The Dispute Proceeding The Victimisation Proceeding The Issues for Determination The Evidence The Facts Background Referral by SMU to PSC First Allegation Letter Second Allegation Letter Substantial and operative cause of Chief Inspector Newton taking detrimental action Chief Inspector Newton's evidence as to his review and assessment of the emails The Involvement of Superintendent McDonald Other asserted reasons Chief Inspector Newton's Evidence should not be accepted Referral to Superintendent Driver Substantial and operative cause of Superintendent Driver taking detrimental action Resolution of the Issues for Determination Dispute Proceeding Does the Commission have the power to grant the relief sought? Are the factual bases upon which it is contended relief is warranted, established? Does the dispute have a collective element and if not, should the Commission decline to grant relief for this reason? Should the Commission decline to grant relief because the PSA failed to follow the grievance and dispute settling procedures set out in Clause 9 of the Award? Victimisation Proceeding: Conclusion and Orders Introduction 1. Before the Commission are two proceedings, both commenced by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA), seeking redress in respect of what it regards as improper conduct by the Respondent, the Commissioner of Police, in relation to one its members, Mr Tony Saraceno. According to the PSA the Respondent has victimised Mr Saraceno, contrary to ss 210(1)(a) and 210(1)(g) of the Industrial Relations Act 1996 (NSW) (IR Act), because he is a member or an official of an industrial organisation of employees, namely the PSA, and is participating, or was proposing to participate, in proceedings relating to an industrial matter. The Respondent on the other hand, asserts that Mr Saraceno has engaged in misconduct, through the disclosure of confidential information without authority and contrary to reg 76 of the Police Regulation 2015 (NSW) and according, she proposes to dismiss him if he does not otherwise tender his resignation. 2. The 'proceedings relating to an industrial matter' referred to in the preceding paragraph are proceedings which were commenced in this Commission by the PSA on 21 July 2022 for a new award setting terms and conditions of employment for New South Wales Police Force 'special constables' (Award Proceeding).1 The proposed new award is to replace the Crown Employees (NSW Police Force Special Constables) (Security) Award 2018 (Security Award). 3. Special constables are not 'police officers' within the meaning of the Police Act 1990 (NSW) but rather, are 'non-executive administrative employees' whose role it is to maintain the safety and security of key New South Wales Police Force buildings and other important Government buildings such as Parliament House. Special constables are nevertheless members of the New South Wales Police Force (NSWPF): Police Act 1990 (NSW), ss 5, 81G. 4. The Award Proceeding, which is currently before the Full Bench, includes claims for an increase in salaries paid to special constables, with the PSA asserting, inter alia, that the work performed by special constables is undervalued. 5. Tony Saraceno is a special constable. While initially not admitted, the Respondent ultimately conceded that Mr Saraceno was and is a member and delegate of the PSA; and it was intended that he would be a witness in the Award Proceeding. [1] 6. It is not in dispute that during the period August 2017 through to October 2022, Mr Saraceno sent emails to the PSA from his work email address, with information, both in the body of the emails and/or in attachments to the emails, relating to the work performed by special constables. 7. On 14 October 2022, the PSA issued a Summons to Produce to the Respondent in the Award Proceeding. The Summons sought, inter alia, a specific document belonging to the NSWPF, which had been given a particular identification number. The call for this specific document, including by reference to its identification number, apparently suggested to the Respondent (or more accurately, certain persons within the NSWPF) that the PSA knew of the existence of the document and possibility that it already had a copy of the document. The Respondent asserted that the document was confidential in nature and that it ought not to have been disclosed to the PSA without authority. Subsequent inquiry revealed that Mr Saraceno had sent a copy of a portion of the document, which included its identification number, to the PSA by email. 8. In early 2023, Mr Saraceno received correspondence from Chief Inspector Stephen Newton, alleging that Mr Saraceno had engaged in misconduct by accessing information without authority and by disclosing confidential NSWPF information, without authority. Specifically, it was asserted that the disclosure of the information was contrary to reg 76 of the Police Regulation which provides: 76 Confidential information (1) A member of the NSW Police Force or a student of policing must treat all information which comes to his or her knowledge in his or her official capacity as strictly confidential, and on no account without proper authority divulge it to anyone. (2) In particular, a member of the NSW Police Force or a student of policing must observe the strictest secrecy in regard to NSW Police Force business, and is forbidden to communicate without proper authority in any way to any person outside the NSW Police Force any information in regard to police or other official business connected with his or her duties, or which may come to his or her knowledge in the performance of them. (3) Nothing in this clause operates so as to impede the due performance of operational police duties or to prevent the giving of information if it is reasonable to do so for the purpose of dealing with an emergency when life or property is at risk. (4) Without limiting subclause (3), nothing in this clause operates to prevent the disclosure of information to a registered medical practitioner or registered psychologist in relation to the provision by that health practitioner of medical or psychiatric care, treatment or counselling (including but not limited to psychological counselling) to a member of the Police Force or a student of policing. 1. According to the PSA around the same time that Mr Saraceno was informed of the allegations against him, the Respondent directed Mr Saraceno to cease working in his substantive role at the Sydney Police Centre and directed him to work at the Armory, which the PSA asserted was where special constables and police officers were often sent when they are the subject of disciplinary action. 2. By letter dated 15 May 2023, which he received on 18 May 2023, Mr Saraceno was informed by the Respondent's delegate, Superintendent David Driver, that the alleged misconduct had been made out and that the Respondent was intending to require Mr Saraceno to tender his resignation, and in lieu thereof, to terminate his employment. 3. On 18 May 2023, the PSA filed a Notification of an Industrial Dispute pursuant to s 130 of the IR Act (Dispute Proceeding) in which it sought "the Commission's assistance and … the Respondent's agreement to permanently stay or otherwise dismiss the disciplinary proceedings commenced against Mr Saraceno." Annexed to the Notification was an Application for Relief from Victimisation which was also separately filed by the PSA on 18 May 2023 (Victimisation Proceeding), in which the PSA, on behalf of Mr Saraceno, sought orders pursuant to s 213 of the IR Act for the Respondent to: 1. permanently stay or otherwise dismiss the disciplinary proceedings commenced against Mr Saraceno; 2. remove the disciplinary allegations dated 23 February 2023 and 10 March 2023 and the letter dated 15 May 2023 from Mr Saraceno's personnel file; 3. return Mr Saraceno to his permanent position as a Field Supervisor in the Sydney Police Centre; and 4. any other consequential orders that the Commission sees fit. 1. Both matters were listed before me on 23 May 2023 – the Dispute Proceeding for compulsory conference and the Victimisation Proceeding for conciliation. Neither matter settled, although the Respondent agreed not to advance the disciplinary process against Mr Saraceno until the Proceedings were heard and determined. I issued a Certificate of Attempted Conciliation in respect of the Dispute Proceeding and I made directions for the two matters to be heard together, with all evidence and submissions filed in one proceeding to be regarded as evidence and submissions in the other proceeding. The Proceedings were brought on for hearing quickly on the basis that Mr Saraceno's ability to give evidence in the Award Proceeding would be impaired if the dispute giving rise to these Proceedings was not resolved. Accordingly, the Proceedings were heard on 19 and 20 June and 5 July 2023. However, I was informed at the conclusion of the hearing on 5 July 2023 that the question of Mr Saraceno giving evidence in the Award Proceedings had been "addressed" and that resolution of the matter was no longer as urgent as had initially been thought to be the case. 2. It was submitted by the PSA that these Proceedings raise important questions as to the rights of union delegates to provide information to their union in respect of an industrial matter in which the union is representing the interests of employees, in circumstances where the information disclosed to the union is said to be confidential to, and/or the property of, the delegate's employer. Further, it was said that the Proceedings raised a real question as the application of reg 76 of the Police Regulation to information provided by a union member or official to the union for the purposes of pursuing an industrial matter before the Commission. However, as will be revealed, it is not necessary for me to resolve this apparent tension in order to determine the outcome of the Proceedings. For the reasons developed below, I have determined to dismiss both Proceedings. Statutory Framework 1. To aid comprehension of the two Proceedings and the discussion that follows, it is convenient to set out the relevant statutory provisions and to provide a brief commentary in respect of some of the relevant principles applicable to the interpretation and application of those provisions, as gleaned from the authorities. 2. In respect of the Dispute Proceedings the following provisions are relevant: Part 1 Conciliation and arbitration of industrial disputes 130 Notification of industrial dispute to Commission (1) Any of the following may notify the Commission of an industrial dispute for the purpose of resolving the dispute— (a) an industrial organisation of employees or employers, (b) an employer who is or is likely to be affected by the dispute, (c) a person who is or is likely to be the subject of a secondary boycott in connection with the dispute, (d) a State peak council. (2) The Commission may act on its own initiative to resolve an industrial dispute. 131 Mandatory dispute resolution procedures to be followed first The Commission may refuse to deal with an industrial dispute until it is satisfied that any relevant dispute resolution procedures in an industrial instrument have been followed as far as is reasonably practicable in the circumstances. Note— Sections 14 and 39 require the inclusion of dispute resolution procedures in awards and enterprise agreements. … 136 Arbitration of dispute (1) The Commission may, in arbitration proceedings, do any one or more of the following— (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). (2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute. Note— Examples of other kinds of orders the Commission may make are orders for secret ballots (section 172), a demarcation order under Part 6 of Chapter 5 and stand-down orders (section 126). Part 2 Dispute orders 137 Kinds of dispute orders (1) The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings— (a) The Commission may order a person to cease or refrain from taking industrial action. (b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute. (c) The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so. (d) The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute. (2) If employees are taking industrial action in connection with the industrial dispute, the Commission may order the employees to cease taking that industrial action before it makes any other kind of dispute order against the employer. (3) A dispute order may not provide for the payment of compensation, lost remuneration or any other amount. Note— See also claim for remedy under Part 6 of Chapter 2 (Unfair dismissals). 138 Making of dispute orders (1) A dispute order may be made only against— (a) a party or likely party to the industrial dispute, or (b) a member, officer or employee of an industrial organisation that is such a party or likely party, or (c) a person engaged, or likely to be engaged, in a secondary boycott in connection with the industrial dispute. (2) A dispute order— (a) must clearly identify the persons against whom the order is made and who are bound by the order, and (b) must state a time within which the order is to be complied with or state a period during which it remains in force, and (c) may be varied or revoked by the Commission at any time. (3) If an employee is reinstated or re-employed under this Part, the Commission may order that the period of employment of the employee with the employer is taken not to have been broken by the dismissal. 1. The Respondent does not dispute, and I agree, that the Dispute Proceeding pertains to an 'industrial matter' within the meaning of s 6 of the IR Act. Section 6(1) provides: (1) General definition In this Act, industrial matters means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry. 1. Section 6(2) provides examples of 'industrial matters'. Section 6(2)(j) refers to 'the surveillance of employees in the workplace'. As explained below, the Respondent uncovered the fact that Mr Saraceno had forwarded NSWPF information to the PSA by conducting surveillance of his and other employees' NSWPF email accounts. 2. Pursuant to s 131 of the IR Act the Commission may refuse to deal with an industrial dispute until it is satisfied that any relevant dispute resolution procedures in an industrial instrument have been followed as far as is reasonably practicable in the circumstances. Clause 9 of the Crown Employees (NSW Police Force Administrative Officers and Temporary Employees) Award 2009 (Award), (which, together with the Security Award, covers special constables), sets out the grievance and dispute settling procedures applicable when a staff member has a 'grievance, dispute or difficulty' with respect to provisions of that Award. Clause 9.9 provides: The staff member or the Association on their behalf, or the Commissioner may refer the matter to the New South Wales Industrial Relations Commission if the matter is unresolved following the use of these procedures. 1. The Respondent asserted that the PSA had not complied, or even attempted to comply with the procedures set out in cl 9 of the Award. The PSA disputed that assertion and submitted that in any event, it would not justify the Commission refusing to deal with the dispute in circumstances where the matter was "always going to end up in the Commission" due to the Respondent's intransigent view that she had not engaged in any wrongdoing. [2] 2. As Walton J confirmed in Secretary of the Ministry of Health v New South Wales Nurses and Midwives' Association [2022] NSWSC 1178; 320 IR 249 at [51], by reference to Bluescope Steel Limited (formerly BHP Steel Limited) v The Australian Workers' Union, New South Wales (No 2) (2005) 141 IR 329; [2005] NSWIRComm 36 at 330 [4(2)] (Wright J, President, Walton J, Vice-President, and Marks J) and other decisions of the Commission, the Commission may take into account provisions in awards about dispute resolution processes when determining whether to make a dispute order (and by extension, any relief in respect of a dispute), "because it would be inconsistent with the objects of the Act to "turn a blind eye" or disregard terms or obligations under an industrial instrument made under the Act." 3. The circumstances giving rise to the two Proceedings specifically concern Mr Saraceno. However, as will be explained below, the amended relief sought by the PSA in the Dispute Proceeding is directed more broadly and seeks to influence the behaviour of the Respondent in the future, as regards her dealings with the PSA and/or its delegates, in respect of legal proceedings, workplace disputes and/or union matters. 4. In the recent decision of Police Association of New South Wales v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1095 the Full Bench (Chief Commissioner Constant, Commissioner Webster and Commissioner McDonald) confirmed, by reference to the Full Bench decision in Unions NSW v Carter Holt Harvey Wood Products Australian Pty Ltd (2006) 149 IR 361; [2006] NSWIRComm 2, that an industrial dispute under the IR Act must have a collective element or characteristic beyond an individual grievance or claim in order for a dispute order to be made pursuant to s 137, but that that was not a necessary requirement for relief to be granted pursuant to s 136(1)(d). 5. As I have mentioned, the PSA amended the relief sought in the Dispute Proceeding after the proceeding was commenced. The PSA now seeks two recommendations and "a determination, pursuant to s 175" (the details of which are set out later in this decision). The Commission may make a recommendation to resolve a dispute pursuant to s 136(1)(a) of the IR Act. Consistent with Police Association of New South Wales v Commissioner of Police, NSW Police Force, there is no requirement that there be a collective element in order for the Commission to grant such relief, although it may be a matter influencing the exercise of the Commission's discretion. 6. As for the making of a determination pursuant to s 175, section 175 provides: 175 Powers of interpretation The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument). 1. As I observed in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Primo Foods Pty Ltd; Primo Foods Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW South Wales Branch [2023] NSWIRComm 1076 at [164], while s 175 of the IR Act provides the Commission with the power to determine any question concerning the application of any relevant law, for the purpose of exercising its functions in connection with a matter before it, it does not permit the making of a declaration. As Commissioner Sloan explained in Fire Brigade Employees' Union of New South Wales v Commissioner of Fire and Rescue New South Wales (PAD Program) [2021] NSWIRComm 1041 at [14] – [15], albeit in the context of a question as to the interpretation of a clause in an award: The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument): s 175 of the Act. The Awards are industrial instruments: s 8 of the Act. The powers conferred on the Commission by s 175 are "for the purpose of [the Commission] exercising its functions". The powers do not stand alone, permitting applications for declaratory relief simpliciter. The power to provide an interpretation of a clause in an award must be associated with the exercise of the Commission's other powers under the Act: Health Services Union New South Wales and Ambulance Service of New South Wales [2017] NSWIRComm 1057 at [10] (Seymour C), citing Australian Rail, Tram and Bus Industry Union, New South Wales and State Transit Authority [2013] NSWIRComm 102 at [67] and Health Services Union v Director-General, Department of Health (NSW) (2010) 193 IR 359; [2010] NSWIRComm 42 at [57]- [58]. 1. The Commission is able to determine a question concerning the interpretation, application or operation of a relevant law as part of the process of determining whether to make a recommendation pursuant to s 136(1)(a) (or whether to exercise some other function), but it must be careful not to make a determination which is tantamount to a declaration. As his Honour Walton J explained in Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431; 320 IR 198 at [191] – [193]: 191. Expressing a view on the interpretation of the law is an act that tribunals and administrative bodies are called upon to do in the ordinary exercise of their functions. Sometimes an interpretation of the law will result in the making of an order or determination that affects legal rights. Other times, as in the case of a recommendation in arbitration, it does not. The fact that the reasoning process in reaching the latter may involve the interpretation of a statute does not have a sufficient legal consequence to give rise to an order in the nature of certiorari. 192. The former Industrial Court previously had a power to make a declaration such that it could declare the law: IR Act s 154 (which was repealed by the Industrial Relations Amendment (Industrial Court) Act 2016 (NSW)). No such power currently exists on the Commission. As mentioned, an interpretation of the law by the Commission does not have the effect of a declaration. 193. To the extent that the Secretary is suggesting that the Commission in a future proceeding is bound by the interpretation set out in the Primary Decision, this is mistaken. An interpretation of the law by a single Commissioner in arbitration does not have the force and effect of a binding precedent on the Commission in the future. There is no principle of ratio decidendi that operates and, even if it did, the principle could not operate with respect to a recommendation. The statements made by the Commissioner do not amount more than him exposing his thought processes in recommending a particular course. 1. It is for the notifier to persuade the Commission that the relief sought should be granted in order to resolve the dispute. Logically, before the Commission will grant any relief, the factual bases upon which it is contended relief is warranted, must be established. 2. In respect of the Victimisation Proceeding, the following provisions of the IR Act are relevant: 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person— (a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or (b) does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or (c) refuses to engage in industrial action, or (d) exercises functions conferred under this Act, or (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or (f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or (h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties), or (i) informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or (ia) informs any person or body of, or gives evidence in relation to, a notifiable occurrence within the meaning of the Rail Safety National Law (NSW), or (ib) reports a matter relating to the safety or reliability of railway, bus or ferry operations to the Chief Investigator (within the meaning of the Transport Administration Act 1988) or a person employed in the Transport Service, or (ic) informs any person or body of, or gives evidence in relation to, a breach or alleged breach of the Dangerous Goods (Road and Rail Transport) Act 2008 or the regulations under that Act (or a provision of a law of another State or Territory that corresponds to that Act or those regulations), or (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions under Part 5 (Consultation, representation and participation) of the Work Health and Safety Act 2011, or (k) assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under the Electricity Supply Act 1995. (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. 213 Enforcement (1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part. (2) The Commission may, in particular, for that purpose do any one or more of the following— (a) order the reinstatement or re-employment of an employee, (b) order the employer to promote or otherwise advance an employee in his or her employment, (c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone, (d) order the employer to employ a prospective employee, (e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat, (f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity, (g) make consequential orders (including orders concerning continuity of service). (3) An application for an order under this section must be made within 21 days after the contravention concerned. (4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to— (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and (c) the conduct in relation to which the order is sought. 214 Application of Part This Part applies despite anything to the contrary in an industrial instrument. 1. The IR Act does not define the term 'victimise' as it appears in s 210, however it has been interpretated to mean conduct which causes an employee to suffer some injury, hardship or loss or to otherwise treat the employee harshly, unfairly or to his or her disadvantage in or in relation to his/her employment: Public Service Association of New South Wales v Teterycz [1998] NSWIRComm 415: Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064 at [60]; Jaggi v Health Secretary in respect of the Western Sydney Local Health District [2022] NSWIRComm 1032 at [60]; or, by inference from the words used in s 210(2), where an employee suffers any detriment: Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance [2017] NSWIRComm 1036 at [16]. 2. Section 210(2) sets up a rebuttable presumption that if an employee has suffered a detriment, it will have been suffered due to one of the prohibited reasons set out in s 210(1). However, it is incumbent upon the employee to first identify and establish the existence of a proscribed factor in s 210(1) before the onus will shift to the employer to prove that the proscribed factor was not a substantial and operative cause of the detrimental action: Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 at [43], cited with approval in Kinninmont at [62], [84]; Basan v Commissioner of Police (No 3) [2023] NSWIRComm 1028 at [53]. 3. In other words, before any onus shifts to the employer, the applicant employee (or industrial organisation on their behalf) must first: 1. establish that they have suffered a detriment within the meaning of s 210(2); and 2. establish the existence of a protected matter, as listed in s 210(1); and 3. allege that the detriment was suffered because of the protected matter referred to in s 210(1). 1. I consider that the summary provided by Wigney J in Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046; 69 AILR ¶102–860 at [297] – [303] in respect of the approach the Court will take when determining whether there has been a contravention of s 340 of the Fair Work Act 2009 (Cth) (FWA) (which prevents the taking of 'adverse action' against an employee for a prohibited reason and is similar to s 210 of the IR Act) to be a very helpful guide as to the principled approach to be taken when determining whether there has a been a contravention of s 210. Like s 210(2), s 361 of the FWA, creates a statutory presumption where it is alleged that a person has taken adverse action against another person for a prohibited reason, to the effect that it will be presumed that the action was taken for that reason, unless the person proves otherwise. His Honour set out the key principles for determining whether there has been a contravention of s 340, by reference to the decisions of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243: 297. First, the question is one of fact: Barclay at [41], [45], [101]; BHP at [7]. 298. Second, the question is why the adverse action was taken: Barclay at [5], [44]. The focus of the inquiry is the reason or reasons of the relevant decision-maker: Barclay at [101], [127], [140], [146]; BHP Coal at [7], [19], [85]. More particularly, the question is whether the alleged prohibited reason was a "substantial and operative" reason for taking the adverse action: Barclay at [56]-[59], [104], [127]; or an operative or immediate reason: Barclay at [140]. 299. Third, the test does not involve any objective element: Barclay at [107], [121], [129]; BHP Coal at [9]. To speak of objectively obtained reasons risks the substitution by the court of its view, rather than making a finding of fact as to the true reasons of the decision-maker: Barclay at [121]; BHP Coal at [9]. 300. Fourth, the inquiry is not concerned with mere causation, in the sense that it is not sufficient that there is factual or temporal connection between the relevant protected workplace rights and the adverse action: BHP Coal at [18]-[20]. Any such connection, however, may necessitate some consideration as to the true motivation or reasons of the decision-maker: BHP Coal at [22]. 301. Fifth, the question must be answered having regard to all of the relevant facts and circumstances and the inferences available from them: Barclay at [45], [127]; BHP Coal at [7]. 302. Sixth, direct testimony from the decision-maker as to why the adverse action was taken is capable of discharging the burden imposed by s 361: Barclay at [45], [71]; BHP Coal at [38]. However, declarations that the action was taken for an innocent reason may not discharge the onus if contrary inferences are available on the facts: Barclay at [54], [79], [141]. The reliability and weight to be given to such evidence must be assessed having regard to the overall facts and circumstances: Barclay at [127]. 303. Seventh, it is not necessary for the decision-maker to establish that the reason for the adverse action was entirely disassociated from the relevant protected workplace right: Barclay at [62]. 1. His Honour's summary of the relevant principles was approved by Lee J in Transport Workers' Union of Australia v Qantas Airways Limited [2021] FCA 873; 308 IR 244 (Qantas) at [45] [3] and by Jagot J in Australian Municipal, Administrative, Clerical and Services Union v Commissioner of Taxation [2022] FCA 1225 at [391] and is consistent with decisions of this Commission with respect to s 210 of the IR Act: see e.g. Paula Lee and Ausgrid (No 6) [2013] NSWIRComm 62; 237 IR 63 (Walton J Vice-President, Harrison DP, Staff J). 2. Justice Wigney also made the following observations at [306] – [307] regarding the High Court's decision in BHP Coal, specifically the judgment of Gageler J (as the Chief Justice then was) which were also approved by Justice Jagot in Australian Municipal, Administrative, Clerical and Services Union v Commissioner of Taxation and which are relevant to the Victimisation Proceeding before me: 304. It is necessary to address one final point that emerges from the judgment of Gageler J in BHP Coal. To properly address that point, it is necessary to say something briefly about the facts in BHP Coal. In that case, a member of the CFMEU engaged in a lawful activity organised by the union. During his participation in that activity, the member waved a placard that included the word "scab". His employment was subsequently terminated. The decision-maker gave evidence at the trial concerning his reasons for dismissing the union member. The reasons included that the word "scab" was considered to be inappropriate, offensive, humiliating, harassing and intimidating and in violation of the employer's workplace conduct policy. The primary judge accepted that the fact that the member had engaged in industrial activity did not play any part in the reasons of the decision-maker to terminate the member's employment. Nevertheless, the primary judge found that the dismissal contravened s 346 because in waving the placard, the member was participating in a lawful activity organised by the CFMEU. The Full Court allowed an appeal from the judgment of the primary judge. 305. The High Court, by majority (French CJ, Kiefel and Gageler JJ, Hayne and Crennan JJ dissenting), dismissed an appeal from the Full Court. In his judgment, Gageler J said (at [91]-[93]): The CFMEU argues that the consequence of allowing the decision of the Full Court in the present case to stand will be to undermine the statutory protection afforded to protected industrial activity by allowing an employer to escape culpability by choosing to apply its own characterisation to otherwise protected industrial activity. Part of the answer to that argument lies in recognition of the nature of the protection that is afforded to protected industrial activity through the operation of s 346(b). The protection afforded by s 346(b) is not protection against adverse action being taken by reason of engaging in an act or omission that has the character of a protected industrial activity. It is protection against adverse action being taken by reason of that act or omission having the character of a protected industrial activity. Another part of the answer lies in recognition of the significance of the combined operation of ss 360 and 361. An employer could not escape the proscription in s 346(b) merely by proving that the employer applied its own characterisation to an act or omission having the character of a protected industrial activity. The employer would need, in addition, to prove that the act or omission having the character of a protected industrial activity played no operative part in its decision. 306. One can readily comprehend the distinction drawn by Gageler J between taking adverse action by reason of conduct that has the character of protected industrial activity, and taking adverse action by reason that the conduct has the character of protected industrial activity, having regard to the particular facts of BHP Coal. The trial judge accepted the decision-maker's evidence that he did not dismiss the employee because he had engaged in conduct that had the character of protected industrial activity. He did not dismiss the employee because he was engaged in the protest. He dismissed the employee because the placard he was waving was offensive and contrary to company workplace policy. While that conduct happened to occur in the context of protected industrial activity, that was not the reason for the dismissal. 307. The distinction drawn by Gageler J is potentially important to the resolution of the issue concerning the decision-maker's reasons in this matter. BHP Coal concerned an alleged contravention s 346 of the Fair Work Act. While it might be thought to be a very fine and highly nuanced distinction, if Gageler J's distinction is applied to s 340 of the Fair Work Act, it would follow that the protection afforded by s 340 is not protection against adverse action by reason that an employee had, or exercised, a right that happened to have the character of a workplace right. It is a protection against adverse action being taken by reason of the fact that the right possessed by the employee had the character of a workplace right. 1. In light of the above explanation, counsel for the PSA was correct when she submitted that "the fact of being a delegate cannot provide some impervious armour against any misconduct, but equally it's not sufficient for an employer to discharge the onus by hiding behind the cloak of a disciplinary investigation." [4] Expressed another way, the fact that "all the alleged misconduct was engaged in as part of Mr Saraceno's duties as a delegate" [5] does not, in and of itself, protect him against the consequences of any substantiated misconduct. However, equally the Respondent cannot escape a finding of victimisation if in fact it pursued Mr Saraceno for misconduct (even if such allegations are substantiated) because he was engaging in duties as a delegate, including by instructing the PSA in relation to the Award Proceeding and proposing to be a witness in the Award Proceeding. 2. In the present matter, if the PSA meets the threshold for the onus to shift to the Respondent, what the Respondent must then establish, on the balance of probabilities, is that Mr Saraceno's membership of the PSA and/or his participation or intended participation in the Award Proceeding, played no substantial or operative part in her delegates' decisions to take detrimental action again Mr Saraceno. 3. Justice Jagot in Australian Municipal, Administrative, Clerical and Services Union v Commissioner of Taxation, at [392], also referred to the remarks of the Full Court in Qantas Airways Ltd v Transport Workers' Union of Australia [2022] FCAFC 71; 292 FCR 34 when it dismissed an appeal from Lee J's decision in Qantas, regarding the process of determining the substantial and operative reason for an impugned decision: In Qantas Airways Ltd v Transport Workers' Union of Australia [2022] FCAFC 71; (2022) 402 ALR 1 at [230] Bromberg, Rangiah and Bromwich JJ said: It must be kept steadily in mind that what is required is a causal and thus factual inquiry into all of the substantial and operative reasons for a decision being made. It is necessarily fact and circumstance specific, potentially with a multitude of such reasons being in play. In the field of causation, the question of fact as to whether something is a cause (or may have been a cause so as to trigger the presumption in s 361(1)), is required to be ascertained "by reference to common sense and experience and one into which considerations of policy and value judgments necessarily enter": see Minister for the Environment v Sharma [2022] FCAFC 35 per Allsop CJ at [305], citing March v E & M H Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 per Mason CJ (with whom Toohey J and Gaudron J agreed). 1. Justice Lee in Qantas also made some helpful remarks, at [46] - [47], regarding the process of determining the substantial and operative reason for an impugned decision which are particularly apt in the present matter: 46. It is well established that the question of fact as to the reason or reasons for which adverse action was taken, must be answered in the light of all relevant facts and circumstances found and the inferences available from them. As the trier of fact, it is first necessary that I find the facts from the evidence admitted and from any inferences properly arising from that evidence (and inferences available to be drawn from the absence of any material). Findings as to the relevant facts and circumstances need to be made first, before then embarking upon the logically subsequent task of assessing those facts and determining the legal consequences of having found them. 47. As noted above, the reason or reasons for the outsourcing decision are to be determined on the balance of probabilities. To discharge its legal onus on the ultimate question to be determined, Qantas has adduced evidence as to the substantial and operative reasons for the outsourcing decision, directed at proving that those reasons were not the proscribed reasons alleged. Given the nature of that evidence in chief, if the evidence as to the reasons is accepted, Qantas' onus is discharged and the case of the Union must fail. Importantly, however, and at the risk of repetition, Qantas is correct to stress that the determinative issue in respect of which Qantas bears the onus is to be assessed after the receipt and consideration of the evidence capable of bearing upon it. 1. Mindful of the above, I set out below the facts giving rise to the present dispute (comprising both the Dispute Proceeding and the Victimisation Proceeding) which includes both non-contentious facts and facts that I have found based on the evidence. Where a fact was disputed, I have explained the conclusion I have reached with respect to that fact and set out my reasons why I have reached that conclusion. Consistent with the approach recommended by his Honour Justice Lee, only after I have made findings with the respect to the facts and circumstances giving rise to these Proceedings, have I embarked on the task of assessing those facts and determining the legal consequences of having found them. 2. It is worth spending a moment examining in more detail the third and sixth principle identified by Wigney J in Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) due to their significance in this matter. 3. The third principle is that the test for determining whether adverse or detrimental action was taken for a prohibited reason "does not involve any objective element" and that to "speak of objectively obtained reasons risks the substitution by the court of its view, rather than making a finding of fact as to the true reasons of the decision-maker." In other words, even if there are facts which 'objectively' indicate that the employee has been victimised, victimisation will not be established if those objective facts did not found the actual reason why detrimental action was taken against the complainant. The High Court in Barclay expressly rejected an approach whereby a Court is to make its own assessment, by examining objectively ascertainable facts, as to what it considers was the 'real reason' for the person's conduct, and determines the case on that basis, regardless of the uncontroverted evidence of what the person who caused the detrimental action actually thought. 4. This principle is well illustrated in Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; 238 FCR 273 [6] where the Full Court dismissed an appeal from Collier J who had found that an employer had not dismissed an employee because he was absent due to illness, (which would have been contrary to ss 340(1) and 352 of the FWA), despite the fact that the employee was genuinely sick, but rather it had done so because it was believed at the relevant time (albeit wrongly) that the employee had been dishonest. The appeal was argued on the basis that the decision maker's evidence should not have been accepted, and that the evidentiary presumption had not been rebutted as others who had provided information to the decision maker had not been called. However, the decision highlights the fact that a wrongly held belief that an employee has engaged in non-protected conduct justifying the detrimental action, if it comprised the substantial and operative cause of the detrimental action, will nonetheless establish that the action was not taken for a prohibited reason. 5. In other words, the role of the Commission in an application made pursuant to s 213 of the IR Act is to ascertain the reasoning actually employed by the relevant decision maker, regardless whether that reasoning be right or wrong, and to then assess whether the reason was a prohibited reason as proscribed in s 210. Thus, in Police Association of New South Wales (obo Tomlinson) v Commissioner of Police [2023] NSWIRComm 1053, Commissioner Sloan at [79] explained (albeit in the context of assessing the prospects of success of an application to bring a s 213 claim out of time): "Snr Cst Tomlinson may well have reasons to feel aggrieved at the finding of misconduct in respect of the Overtime Claim. The Investigation Report set out the grounds on which Snr Cst Tomlinson should be regarded as having had a meal break or to having "abandoned" his entitlement to such a break. Those parts of the Investigation Report give rise to concern, although I make no determination that they are necessarily wrong. However, it is not sufficient in proceedings under s 213 to assert that an erroneous decision was made. The Association was required to demonstrate that there was a prima facie case that Snr Cst Tomlinson was victimised because he claimed a benefit to which he was entitled under the award. It did not do so." 1. That is not to say however, that in all cases the correctness of the reasoning will be irrelevant. The sixth principle identified by his Honour Justice Wigney is that direct testimony from the decision-maker as to why the adverse action was taken is capable of discharging the reverse onus, "[h]owever, declarations that the action was taken for an innocent reason may not discharge the onus if contrary inferences are available on the facts." The observations of French CJ and Crennan J in Barclay at [45] are particularly helpful in understanding the correct approach: This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. [See, eg, General Motors-Holden's Pty Ltd v Bowling (1976) 136 CLR 676 (note) …] Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker [See, eg, Pearce v WD Peacock & Co Ltd (1917) 23 CLR 199 at 208 per Isaacs J; at 211 per Higgins J.] or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. [See, eg, Harrison v P & T Tube Mills Pty Ltd (2009) 188 IR 270 at 276 [31]-[33].] 1. It is conceivable that evidence might be led to which so seriously undermines the correctness or the soundness of the decision-maker's belief that the Commission could be entitled to conclude that the belief was not, in fact, genuinely held. However, whether the Commission would be entitled to reach such a conclusion will depend on an assessment of all the evidence in a given case, including the decision-maker's response when confronted with the contrary evidence. 2. His Honour Justice Lee in Qantas also made some helpful observations regarding the principled approach to be taken when a number of individuals are in some way involved in the decision-making process. Understanding the correct approach is important in this case as the evidence showed that four individuals were potentially involved in the alleged victimisation, namely: 1. Superintendent McDonald, who conducted an initial inquiry to ascertain how the PSA came to be aware of the summonsed document; apparently arranged for the Professional Standards Command of the NSWPF (PSC) to conduct two email audits and who ultimately referred the matter to PSC with a 'complaint' that Mr Saraceno had or may have, engaged in misconduct; 2. Chief Inspector Newton, who, together with Sergeant Alisa Flint, conducted a review of the emails uncovered in the earlier audit, instigated a disciplinary investigation into Mr Saraceno, including a further email audit specifically of Mr Saraceno's emails, and made allegations to Mr Saraceno that he had engaged in misconduct; and 3. Superintendent Driver, who made findings that Mr Saraceno had engaged in misconduct and has, as the Respondent's delegate, threatened to terminate Mr Saraceno if he does not resign. 1. Lee J in Qantas, after observing at [224], by reference to Heydon J in Barclay (at [140)], that the examination of whether a particular reason was an operative or immediate reason for an action calls for "an inquiry into the mental processes of the person responsible for that action", his Honour went on, at [225], to refer to his earlier decision in Leahey v CSG Business Solutions (Aus) Pty Ltd [2017] FCA 1098 at [103] –[104] where he said: 103. … In Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251, the Full Court considered a situation where two supervisors assessed an employee for redundancy by reference to identified criteria. A third person, a general manager, then made the ultimate decision to terminate the employment of the employee. It was explained that if either of the supervisors' assessments was influenced by a prohibited reason, that would have impugned the decision of the general manger, even though the prohibited reason had not been disclosed to him. In doing so, at 260 [37] the Court explained that one supervisor made "an indispensable contribution to the rankings" and both supervisors "co-operated in a joint assessment, with each giving an account of what influenced them individually". If one supervisor "was influenced in giving a low mark by a prohibited reason, it can be assumed that if the ranking were done without having regard to that prohibited reason" then this would, inevitably, have, affected the ranking process, whatever the views of the other supervisor. Furthermore, whatever debate there might be about the extent of the general manager's power or involvement in the decision, the manager's evidence was that he took the supervisors' assessment and worked from there. It followed that if the supervisors' assessment was affected (or infected) by either supervisor holding an undisclosed prohibited reason, then the general manger "would have, in effect, inadvertently adopted it so that its force continued regardless of the lack of any express prohibited reason in the mind of" the general manager (at 260 [37]). 104. In dealing with the Full Court's decision in Kodak, in Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; (2015) 253 IR 166, Reeves J observed (at 198 [121]) that: … where the reasoning process is dispersed through an assessment process involving a number of persons…the judgment in Kodak requires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. This inquiry…focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason, that will impugn the ultimate decision. This is what I consider the Full Court meant by "inadvertently" adopting an "undisclosed prohibited reason" in Kodak … (References omitted). 1. Lee J went on to discuss the possibility of difficulties arising in determining the reasons why a body corporate acted in a certain way in circumstances where the decision maker may have been influenced by others, in particular those that do not have any power to make the decision. He ultimately concludes, at [233] that in the end "it is all a fact dependent analysis." The Full Court of the Federal Court addressed this issue in Wong v National Australia Bank Limited [2022] FCAFC 155; 318 IR 148 at [26]: The authorities show that in asking whether an adverse action was taken by a corporate entity, the Court should remain alert to the possibility that the answer may reside in the mind of more than one natural person. The state of mind of the human actor who said or did the thing that bound the corporation to the action will of course be important, and in many cases determinative. However, the cases illustrate that a person who does the act or thing constituting the adverse action may act on information or advice the provision or content of which is actuated by a prohibited reason. The adoption of such information or advice may necessitate the conclusion that the corporation's reasons for the adverse action include that prohibited reason. In such cases, it matters not that the person providing the information and advice does not formally possess the authority or power to effect the decision based on the information and advice. Whether the person performing the act constituting the adverse action is aware that he or she is acting on information or advice given for a prohibited reason may not be relevant in cases of that kind. 1. The authorities make it clear that it is important to draw a distinction between a circumstance where the person performing the detrimental action acts on advice or information given by another, without bringing to bear their own independent judgment to the task; and a circumstance where the person performing the detrimental action acts on advice or information given by another but conducts their own assessment and forms their own independent view, of the information and advice. In the first circumstance, the state of mind of the person providing the advice or information will be relevant and must not include a prohibited reason, as any prohibited reason will be regarded as having infected the ultimate decision even if the ultimate decision marker was unaware of it; in the second circumstance, the state of mind of the 'informer' will usually not be relevant, as the information or advice given to the decision maker did not materially affect the ultimate decision, although each case will turn on its own facts. 2. The above discussion highlights the importance of first establishing that the employee has suffered a detriment as alleged and then, who was responsible "for performing the act constituting the [detrimental action]" [7] . Once that is established, an inquiry can then made into the actuating reasons of the person or persons responsible for the action. If only one person was responsible for performing the act constituting the detrimental action, it will nevertheless be important to establish whether their decision to take the detrimental action was materially affected by the input of others and if so, the motivations of those others. If there were multiple decision makers, each of their motivations must be examined. This requirement draws attention to the pleadings. 3. The nature of proceedings under s 213 of the IR Act and the obligation on a respondent to rebut the presumption set up pursuant to s 210(2) means that it is important that the respondent understands precisely: 1. what action the employee alleges the respondent engaged in that caused the employee detriment; and 2. which of the protected matters listed in s 210(1) it is alleged the employee enjoyed, so the respondent can first, if it wishes, answer the allegation that the employee suffered detriment by reason of the respondent's action and/or that the employee enjoyed one of the protected matters listed in s 210(1) and then, if it considers it needs to do so, lead evidence to satisfy the Commission that the alleged matter referred to s 210(1) was not a substantial and operative cause of the detrimental action. As Chief Commissioner Constant explained in Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064: 78. The nature of proceedings under s 213 of the IR Act, and the obligation on the respondent to adduce evidence of the central issue to rebut the reverse onus mean there is a need for an allegation to identify precisely and distinctly the alleged reason, or the alleged intent, for the contravening conduct so that the respondent can lead evidence in the proceedings to rebut the presumption. An applicant wishing to take advantage of the presumption, in addition to making the allegation in a form that meets the requirements of s 210, must provide sufficient information about the action, and the related reason and/or intent for which that action was taken, to show that, in combination, they would constitute a contravention of a provision of s 210. 79. Before an employer can disprove an alleged contravention it must be clearly stated. It is impermissible in this statutory scheme to require the respondent to distil or interpret, or go looking for, the allegations to which it must respond, and about which it must lead evidence in order to displace the presumption. It is not sufficient for the applicant to assert that the respondent could have asked for further and better particulars. Although the Commission is not a court of strict pleadings, this does not absolve a litigant from being required to enunciate its case in a consistent and clear manner and the respondent cannot be held to the reverse onus in respect of matters not clearly articulated in the Amended Victimisation Application but raised in final submissions. 1. There remain some other relevant statutory and award provisions to consider before addressing the facts and legal issues arising in these Proceedings. The first is reg 76 of the Police Regulation which I set out at [8] above. 2. As will be explained in more detail below, the Respondent alleged that Mr Saraceno's disclosure of information to the PSA constituted a breach of reg 76. Regulation 76 has received little to no judicial attention. 3. In response to this allegation the PSA contended that reg 76 has no effect in the face of the protections afforded by s 210 due to s 218 of the Police Act which provides: 218 Industrial Relations Act 1996 not affected (1) The Industrial Relations Act 1996 is not affected by anything in this Act. (2) Subsection (1) does not limit section 42 or 88 or any provision of the Industrial Relations Act 1996. 1. Alternatively, the PSA submitted that as a union member, Mr Saraceno had implied authority to communicate information of the kind described in reg 76 to the PSA. Although it was not clearly articulated by the PSA, I understand it contends that such implied authority arises from the protections afforded in s 210 of the IR Act [8] and possibly, the Award, Section 6, which confers certain rights and privileges (as well as responsibilities) on employees undertaking union activities. Of particular relevance is cl 59 which provides: 59.1 The workplace will provide accredited delegates with reasonable access to the following facilities for authorised Association activities: 59.1.1 Telephone, facsimile, internet and E-mail facilities; 59.1.2 A notice board for material authorised by the Associate or access to staff notice boards for material authorised by the Association; 59.1.3 Workplace conference or meeting facilities, where available, for meetings with member(s), as negotiated between local management and the Association. 1. Finally, provisions under the Government Sector Employment Act 2013 (NSW) (GSE Act) and the Government Sector Employment (NSW Police Force) Rules 2017 (NSW) (GSE (NSWPF Rules)) are relevant. 2. Section 69(4) of the GSE Act sets out the action 'the person who exercises employer functions in relation to [an] employee' may take if there is a finding of misconduct by the employee of a government sector agency. It is not necessary to set out the whole of the provision. It suffices to note that if misconduct is found, an employee may be terminated with, or without, being given the opportunity to resign and it is pursuant to this provision that the Respondent proposes to terminate Mr Saraceno's employment. 3. Part 6 of the GSE (NSWPF) Rules set out the procedural requirements which are to be followed where an allegation of misconduct is made against an administrative employee of the NSWPF. It is helpful to set out the first three rules in full as it provides context to the process that was followed in relation to the allegations made against Mr Saraceno. Rules 44 – 46 provide: 44 Initial stage for dealing with allegations of misconduct (1) An allegation of misconduct by an administrative employee may be made by any person to the Commissioner. (2) The administrative employee in respect of whom the allegation is made is referred to in this Part as the relevant employee. (3) After making an initial assessment of the allegation, the Commissioner may decide not to proceed with the matter if the Commissioner is satisfied that: (a) the allegation is vexatious or trivial, or (b) the incident or conduct concerned does not amount to misconduct, or (c) there is likely to be difficulty in establishing the facts of the matter. (4) If, after making an initial assessment, the Commissioner decides to proceed with the matter, the relevant employee is to be advised: (a) of the details of the allegation of misconduct, and (b) of the action that may be taken under section 69 (4) of the GSE Act against the employee. (5) The relevant employee is to be given a reasonable opportunity to make a statement in relation to the allegation. (6) The Commissioner may, as a result of any such statement by the relevant employee: (a) decide to proceed to deal with the matter in accordance with this Part, or (b) decide not to proceed any further with the matter. The relevant employee is to be notified of the Commissioner's decision. (7) The person making an allegation of misconduct is to be informed of any decision by the Commissioner under this rule not to proceed with the matter. 45 Inquiries (1) The Commissioner may, in dealing with an allegation of misconduct, conduct such inquiries as the Commissioner thinks appropriate for the purposes of determining whether the misconduct has occurred. (2) A formal hearing involving the legal representation of the relevant employee or any other person and the calling and cross-examination of witnesses is not to be held in relation to an allegation of misconduct and the taking of any action with respect to the employee. 46 Findings by Commissioner (1) The Commissioner may, in dealing with an allegation of misconduct: (a) make a finding of misconduct by the relevant employee (in which case the employee is to be notified of the finding in writing), or (b) make a finding that misconduct by the relevant employee has not occurred (in which case the Commissioner is to dismiss the allegation and advise the relevant employee in writing). (2) The Commissioner may not take any action under section 69 (4) of the GSE Act in relation to an administrative employee unless: (a) the employee is notified of the proposed action to be taken, and (b) the employee is given a reasonable opportunity to make submissions in relation to the proposed action, and (c) if any such submissions are made, the Commissioner has taken those submissions into consideration. (3) If the Commissioner makes a finding of misconduct in relation to an administrative employee, the Commissioner may, instead of taking action under section 69 (4) of the GSE Act, require the conduct of the employee to be monitored over a specified period notified to the employee. (4) If, during that specified period, the Commissioner is satisfied that the administrative employee has engaged in misconduct of the same or similar kind as the misconduct the subject of the previous finding, the Commissioner may take any action under section 69 (4) of the GSE Act in respect of the employee. (5) In that case, the employee is not required to be given an opportunity to make submissions in relation to the action proposed to be taken by the Commissioner. The PSA's Case and the Relief Sought The Dispute Proceeding 1. Before the matter came on for hearing the PSA informally amended the relief it sought in the Dispute Proceeding. It advised the Respondent of the amended proposed relief by letter dated 26 May 2023, and the Commission in opening oral submissions. [9] Importantly, any claim in the Dispute Proceeding for a stay or a dismissal of the 'disciplinary proceeding' against Mr Saraceno was abandoned. The revised relief sought by the PSA in the Dispute Proceeding is: 1. a recommendation that: 1. the Respondent cease accessing emails from PSA delegates to PSA solicitors and administrative support staff where those emails are marked "Sensitive-Legal" or are otherwise subject to legal professional privilege; and 2. the parties consult to devise a document that covers procedures for PSA delegates using NSW Police Force email to communicate with the PSA regarding legal proceedings and workplace disputes, and 1. a determination, pursuant to s 175 of the IR Act, that reg 76 of the Police Regulation 2015 does not apply to PSA delegates who are exercising their rights as delegates to use NSW Police Force email to communicate with the PSA and/or its solicitors regarding union matters or legal proceedings. 1. The basis upon which the PSA contended the Commission should grant the relief sought was set out in the Notice of an Industrial Dispute (Notice) as follows: "1. This dispute relates to matters set out in an application under section 210 of the Industrial Relations Act 1996 (NSW) (IR Act). A copy of this application is attached hereto and marked A1 and involves the Notifier's member and long-term delegate Mr Tony Saraceno. The matters set out in the annexure A1 are relied upon in this dispute. In addition, we rely on the following matters. 2. The Respondent has accessed emails sent by Mr Saraceno to the Notifier's legal team that are the subject of legal professional privilege by the Notifier. 3. The Respondent has accessed these communications in circumstances where the Respondent is defending an arbitrated award proceeding (213646 of 2022 – Crown Employees (NSW Police Force Special Constables) (Security) Award 2022). 4. The Respondent has refused to give the Notifier an undertaking to cease accessing legally privileged communication and documents as set out in the section 201 application at A1. 5. In addition, the victimisation of Mr Saraceno has interfered with the Notifier's ability to: a. Finalise the evidence in reply from Mr Saraceno who is currently facing threat of dismissal; and b. Obtain evidence from other members have (sic) formed the view that their employment might be threatened and /or adversely impacted if they participate in the proceedings as a consequence of the matters set out therein." 1. The PSA's case in the Dispute Proceeding is essentially, that at all relevant times Mr Saraceno was acting in his capacity as a union member or delegate providing instructions and filing evidence as a witness in the Award proceedings; that the documents he disclosed to the PSA were documents ordinarily in his custody as an incident of his employment and were communicated to the PSA in furtherance of his role as a union delegate; that the Respondent had improperly accessed communications and documents between Mr Saraceno and the PSA's lawyers which were sent in confidential circumstances for the purposes of legal proceedings and are subject to legal professional privilege; and consequently the PSA has been impeded in finalising Mr Saraceno's evidence and obtain evidence from other members, in respect of the Award Proceeding. The relief sought by the PSA seems to be directed principally toward future communications between the PSA and its delegates rather than remedying Mr Saraceno's predicament, although a determination in the terms sought would no doubt assist Mr Saraceno. The Victimisation Proceeding 1. As I will shortly explain in more detail, when the PSA commenced the Victimisation Proceeding it claimed that by alleging that Mr Saraceno had engaged in misconduct; by directing him to work at the Armory; by finding he had engaged in misconduct and by threating to terminate his employment, the Respondent had victimised Mr Saraceno contrary to s 210(1)(a) and s 210(1)(g) of the IR Act. 2. However, an issue arose in closing submissions in the Victimisation Proceeding, as to the scope of the PSA's case. As the Respondent submitted [10] , and I accept, the Application for Relief from Victimisation filed on 18 May 2023 (Application) did not adequately particularise the acts said to constitute victimisation. A schedule attached to the Application which was said to provide the particulars of victimisation was constructed more as submission than a pleading. 3. The Respondent submitted that due to the 'reverse onus' provided for in s 210(2) of the IR Act and in reliance on Kinninmont, the PSA should not be permitted to depart from the allegations of victimisation set out in the original Application. 4. There were five paragraphs in the schedule attached to the Application filed in the Victimisation Proceeding which can sensibly be regarded as articulating the acts said to constitute victimisation, despite this not being expressly stated, namely: "8. By letters dates 23 February 2023 and 10 March 2023 the Respondent made allegations of misconduct against Mr Saraceno which directly related to: a. the provision of documents alleged to be confidential to the Applicant's lawyers for the purposes of preparing evidence and summonsing documents in the Award Proceedings; and b. the provision of information and documents to the Applicant in Mr Saraceno's role as a union delegate. 9.The Respondent directed Mr Saraceno to cease working in his substantive role at the Sydney Police Centre and directed him to work at the Armory. It is well-known within the New South Wales Police Force that special constables (and police officers) are re-deployed to the Armory when they are the subject of disciplinary allegations. … 13. By letter dated 15 May 2023 but sent via email to Mr Saraceno on 18 May 2023 the Respondent made findings of misconduct against Mr Saraceno and proposing the action of termination – after giving him an opportunity to resign. Mr Saraceno was invited to show cause within 14 days why he should not be terminated. … .. 14. Mr Saraceno's conduct does not constitute misconduct. His conduct has been consistent with his role: a. as a union delegate; and/or b. as an instructor and witness in the Award Proceedings. 15. The Respondent has accessed communications and documents between Mr Saraceno and the Applicant's lawyers which were sent in confidential circumstances for the purposes of legal proceedings and are subject to legal professional privilege." 1. Based on those paragraphs it appeared, as at the date of filing of the Application, that the alleged victimisation was constituted by the Respondent: 1. making allegations of misconduct against Mr Saraceno; 2. directing Mr Saraceno to work at the Armory; 3. making findings of misconduct against Mr Saraceno and proposing termination after giving him an opportunity to resign; and 4. accessing (allegedly confidential) communications and documents between Mr Saraceno and the Applicant's lawyers. 1. The PSA's Outline of Submissions dated 31 May 2023 (AOS) did not identify, clearly or at all, the acts said to constitute victimisation. The only reference to the acts said to constitute victimisation is found in paragraph [19] of the AOS which stated: "Everything done by the respondent in initiating and continuing the disciplinary investigation into Mr Saraceno's conduct has been done with the respondent's full knowledge that all of the alleged misconduct was engaged in as part of Mr Saraceno's duties as a delegate." 1. The AOS ostensibly expanded the alleged victimisation to include "initiating and continuing the disciplinary investigation into Mr Saraceno's conduct", however no application was made at the time of filing the AOS, or at any time therefore, to amend the Application. 2. The Respondent, in her Outline of Submission dated 7 June 2023 (ROS), stated that she was: "…proceeding on the assumption that the asserted 'detriment' to SC Sarceno is him being investigated for misconduct and being threatened with termination of employment. The Respondent concedes these matters amount to a 'detriment', within the meaning of s 210(2) of the IR Act." 1. On the basis that this was the PSA's case, the Respondent filed and served an Affidavit of Chief Inspector Stephen Newton dated 7 June 2023, being the person responsible for the disciplinary investigation into Mr Saraceno and Superintendent David Driver, who made the findings of misconduct against Mr Saraceno and proposed that Mr Saraceno be terminated, after being given the opportunity to resign. 2. The PSA made a clearer attempt to particularise the actions said to constitute victimisation in the Applicant's Outline of Submissions in Reply dated and filed on 15 June 2023 (ARS), one day before the commencement of the hearing. As set out at [ARS [1] – [6]: "The respondent victimised Mr Saraceno by: - 1. On or about October 2022 commencing an investigation in relation to the provision of information to the applicant for the purposes of prosecuting an application for a new Award including improved pay and conditions for special constables in IRC proceedings 00213646 ("the Award proceedings"). 2. On or about 27 October 2022 commencing, and subsequently continuing, a disciplinary investigation into Mr Saraceno for providing information to the PSA in his role as a. a witness in the Award proceedings; and/or b. a union member/delegate. 3. Issuing a disciplinary complaint letter dated 23 February 2023 to Mr Saraceno, where the basis of the disciplinary complaint was Mr Saraceno providing information to the PSA in his role as a. a witness in the Award proceedings; and/or b. a union member/delegate. 4. Issuing a supplementary disciplinary complaint letter to Mr Saraceno dated 10 March 2023 where the basis of the supplementary disciplinary complaint was Mr Saraceno providing information to the PSA in his role as a. a witness in the Award proceedings; and/or b. a union member/delegate. 5. Issuing a show cause letter to Mr Saraceno dated 15 May 2023 which included adverse findings about Mr Saraceno where the allegations about which adverse findings are made involve Mr Saraceno providing information to the PSA in his role as a. a witness in the Award proceedings; and/or b. a union member/delegate. Strictly in the alternative 6. Between on or about 27 October 2022 and continuing, by failing retrospectively to authorise Mr Saraceno to provide the information to the PSA that he provided in his role as a. a witness in the Award proceedings; and/or b. a union member/delegate. 1. Based on my reading of ARS [1] – [6], the PSA asserted, as at 15 June 2023, that the alleged victimisation was constituted by: 1. an investigation commenced in or about October 2022 (but implicitly prior to 27 October 2023) in relation to the provision of information to the PSA for the purposes of prosecuting the Award Proceeding; 2. a disciplinary investigation into Mr Saraceno commenced on or about 27 October 2022 "for providing information to the PSA"; 3. the issuing of the disciplinary complaint letter dated 23 February 2023 (in other words, the making of allegations of misconduct against Mr Saraceno, as had been alleged in the Application); 4. the issuing of a supplementary disciplinary complaint letter dated 10 March 2023 (in other words, the making of allegations of misconduct against Mr Saraceno, as had been alleged in the Application); 5. the issue of a show cause letter dated 15 May 2023 (in other words, the making of findings of misconduct against Mr Saraceno and proposing termination after giving him an opportunity to resign, as had been alleged in the Application). 1. Notably, the previous (albeit oblique) allegations contained in the Application, namely that moving Mr Sarceno to the Armory and the accessing of communication and documents between Mr Saraceno and the Applicant's lawyers by the Respondent, constituted victimisation, were not repeated and I, like the Respondent, approached the case on the basis that those claims of victimisation, to the extent they were made at all, were abandoned following the filing of the ARS. They were not identified as acts constituting victimisation in the PSA's written or oral closing submissions. 2. Conversely, the allegations that the investigation commenced in or about October 2022 in relation to the provision of information to the PSA (in contradistinction to a separate disciplinary investigation into Mr Saraceno commenced on or about 27 October 2022 once it was established that he had provided information to the PSA) and that failing to retrospectively authorise Mr Saraceno to provide the information to the PSA in his role as a witness in the Award Proceeding and/or a union member/delegate, were raised for the first time in the ARS. No application was made by the PSA to amend the Application to include these allegations. 3. As will be explained in more detail below, Chief Inspector Newton had stated in his affidavit that had been filed and served on or about 8 June 2023, that in or around October 2022 an audit of staff emails had been undertaken by the PSC at the request of Superintendent Paul McDonald, the Commander of the Security Management Unit (SMU) to which SC Sarceno belonged, to identify whether any staff member had sent a particular document that had been Summonsed by the PSA, to the PSA. The result of this audit (according to Chief Inspector Newton) had identified that Mr Saraceno had sent the document by email to Ms Alison McRobert, a lawyer employed by the PSA, on 14 October 2022. Thereafter, a second audit was undertaken by the PSC specifically of Mr Saraceno's emails, which revealed that he had sent numerous emails to the PSA. The matter was then referred by Superintendent McDonald, to Chief Inspector Newton, Manager Administrative Officer Conduct Unit, PSC, to conduct a disciplinary investigation specifically into Mr Saraceno. [11] 4. It seems that the discovery by the PSA, via Chief Inspector Newton's served affidavit, that an audit had apparently been conducted of emails at the request of Superintendent McDonald, was the catalyst for the new allegation in the ARS that the commencement in October 2022 of "an investigation in relation to the provision of information to the applicant ….", constituted victimisation. As counsel for the PSA explained in oral closing submissions: "… all we have when we commenced these proceedings are the letters of allegations and the finding. We don't know what led to those beyond what's contained in them. … Until we get their evidence, we didn't know that that [the issue of the Summons] had triggered this complaint which is some four months later." [12] 1. The recent acquisition of knowledge of the email audits ordered by Superintendent McDonald and his subsequent referral of Mr Saraceno to the PSC (referred to as a 'complaint' during the hearing), may have provided grounds to the PSA to seek leave to amend the Application to include additional allegations of contravening acts, however as I have already observed, no such application was made. 2. Rather, the PSA submitted that it was "incumbent upon the respondent", when her legal representatives received the ARS (one day before the hearing was due to commence) to "seek to vary the timetable to accommodate the need to put on further evidence" [13] if she considered the situation to be procedurally unfair. According to the PSA the Respondent did not do this "because with the exception of the last specified allegation in the alleged victimisation [set out in the ARS] all of the others were encompassed in the cp [correspondence?] which preceded the notification of the dispute and the filing of the victimisation application and were apparent in the application itself." [14] 3. Two issues arise from the approach taken by the PSA. First, to the extent the ARS raised an allegation of victimisation for the first time, it was incumbent on the PSA to seek leave to amend its Application for Relief to include the new allegation. Until that occurred and consistent with Chief Commissioner Constant's approach in Kinninmont, the PSA's claims of victimisation must be limited to those articulated in the Application. At best, they must be limited to those articulated prior to the deadline for the filing and service of the Respondent's evidence. As recorded at [69] above, at the time of filing and serving her evidence, the Respondent understood that the asserted detriment to Mr Saraceno was him being investigated for misconduct and being threatened with termination of employment. The Respondent conceded these matters amounted to a 'detriment', within the meaning of s 210(2) of the IR Act. 4. Had the PSA obtained leave to amend its Application the Respondent might then have sought leave to put on further evidence to address the new allegations raised. This may have caused the hearing to be delayed and if this was likely to be the case, it would have been a factor in the Commission determining whether leave to amend the Application should be granted. 5. The PSA's submission that it was "incumbent upon the respondent" when it received the ARS, to apply to the Commission to be permitted to put on further evidence demonstrates at best a misunderstanding of, or at worst a disregard for, the proper processes of civil litigation, including those followed in this Commission. As the Honourable Chief Justice King explained in Williams v Australian Telecommunications Commission (1988) 52 SASR 215 at 216: "The fundamental purpose of pleadings is to provide a structure or framework for the litigation designed to promote a just outcome." While s 163 of the IR Act provides that the Commission is not bound to act in a formal manner and obliges the Commission to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms, as Chief Commissioner Constant explained in Kinninmont, this does not absolve a litigant from being required to enunciate its case in a consistent and clear manner and the respondent cannot be required to respond to a case not raised before it is required to put on its evidence in response. 6. As Shelley Dunstone explains in her book, A Practical Guide to Drafting Pleadings (2nd ed, 1996, LBC Information Services) at 9: "Fairness in litigation requires that: ● each party be given notice of the opposing party's allegations; ● each party be given a fair opportunity to answer the allegations being made against it; and ● each party be given a fair opportunity to prepare and present its case. Pleadings provide a vehicle for achieving this result of fairness." 1. A similar point was expressed by his Honour Justice Young (as he then was) and Hugh Selby in their book, Rose's Pleadings Without Tears in Australia, (3rd ed, 1997, The Federation Press) at 4: "It is a fundamental rule of justice that, if a party is going to be called upon to spend time and money on answering claims made against him (let alone possibly meeting the claim at the end of the day), he should be given a clear indication as to what is being demanded of him, and the reasons therefor. Even though we have thankfully grown away from the ancient practice of pleadings having to be so exact that a mere word out of place would invalidate the action, precision in the formulation of the claim is still rightly of paramount importance." 1. Those remarks apply a fortiori where, as in this case, a respondent to a claim is burdened (subject to the establishment of certain threshold facts) with the onus of proving that they are not liable to meet the claim. 2. The raising of certain allegations in correspondence sent by the PSA to the Respondent prior to the commencement of the Victimisation Proceeding does not entitle the PSA to rely on those allegations in circumstances where they were not repeated in the Application. 3. Consistent with my obligation to act according to equity and good conscience, and particularly in view of the reverse onus established by s 210 (2) of the IR Act, I do not consider that the PSA should be permitted to rely on allegations of victimisation that had not been squarely raised in the Application or, allowing the widest latitude, in material filed and served in the proceeding prior to the date when the Respondent's evidence was due, that is, 7 June 2023. 4. Which brings me to the second issue: could it be said that the allegation in ARS [1] (that the investigation commenced in or about October 2022 in relation to the provision of information to the PSA constituted victimisation within the meaning of s 210), was nevertheless encompassed within the allegations made in either the Application or the AOS (i.e was it an allegation made prior to 7 June 2023 when the Respondent served her evidence)? 5. Certainly the allegation that failing to retrospectively authorise Mr Saraceno to provide the information to the PSA in his role as a witness in the Award Proceeding and/or a union member/delegate, constituted victimisation, was only raised for the first time in the ARS. I accept the Respondent's submission that such a claim cannot be countenanced. In any event, no evidence was led by the PSA to support a finding that any request had been made by the PSA or Mr Saraceno to the Respondent, that he be so authorised, let alone a finding that that request was refused. 6. In relation to the investigation commenced in or about October 2022, no express reference was made to any investigation in the Application – understandably, because the fact of any such investigation was unknown to the PSA at the time of filing the Application. Reference was however, made in the AOS to "initiating and continuing the disciplinary investigation into Mr Saraceno's conduct" (emphasis added). 7. As was borne out by the evidence (which is detailed later in this decision), the investigation into Mr Saraceno for misconduct, which was referred to by the PSA in the AOS as a 'disciplinary investigation', was separate and different to, the two antecedent audits of emails undertaken by the PSC at the behest of the SMU/Superintendent McDonald, which culminated in the referral or complaint being made by the SMU/Superintendent McDonald to the PSC in respect of Mr Saraceno. As already observed, the fact of these email audits was not known to the PSA before it received the Respondent's evidence. To the extent the first allegation of victimisation set out at ARS [1] is a reference to the email audits conducted at the behest of the SMU, this is a new allegation, notice of which had not, for obvious reasons, been given to the Respondent. If the PSA wished to include the email audits, the October 2022 investigation conducted by the SMU, and/or the SMU complaint to the PSC, as alleged acts constituting victimisation, to ensure a fair hearing it ought to have sought leave to amend its application. It did not do so and so I do not consider that it should be allowed to rely on those matters, as separate instances of victimisation. 8. Thus, on the basis of only of what was put in the Application and the AOS I consider that the claim against the Respondent is limited to: 1. the initiation of a disciplinary investigation by the PSC following the receipt of the referral or complaint from the SMU; 2. the continuation of the disciplinary investigation by the PSC; 3. the making of allegations of misconduct; 4. the findings of misconduct; 5. the threat of termination. 1. That is not to say however, that the email audits, the SMU's investigation and/or the SMU's complaint and the reasons for them are necessarily irrelevant, for the reason explained at [46] - [49] above. Put simply, if Superintendent McDonald or some other person had a material effect on the decision to take detrimental action against Mr Saraceno in the form listed in the preceding paragraph, the conscious reasoning processes of those persons will need to be examined to determine whether their processes were free of the alleged prohibited reasons. 2. As for the relief sought by the PSA in the Victimisation Proceeding, the PSA continued to press for all of the relief prayed for in the Application, which I set out at [11] above. The Issues for Determination 1. As recorded above, certain matters are not in dispute. In particular: 1. in the Dispute Proceeding the Respondent accepts that: 1. the dispute pertains to an "industrial matter", particularly where s 6(2)(j) of the IR Act expressly provides that surveillance of employees in the workplace is an example of an industrial matter; [15] and 2. Ms Alison McRobert is a solicitor employed by the PSA. [16] 1. In the Victimisation Proceeding the Respondent accepts that: 1. Mr Saraceno was and is a member and delegate of an industrial organisation of employees, namely the PSA and, at the time of the relevant action, he proposed to participate in proceedings relating to an industrial matter, namely the Award proceeding; [17] 2. being investigated for alleged misconduct and being threatened with termination of employment as a result of having been found to have engaged in misconduct, amount to a 'detriment', within the meaning of s 210(2) of the IR Act; [18] and 3. Mr Saraceno was investigated for misconduct and was and is being threatened with termination of employment as a result of findings that he had engaged in misconduct. [19] 1. In light of the above; the preceding discussion as to the statutory framework; the PSA's case and the relief sought; and the parties' submissions, the issues for determination may be summarised as follows: 1. In the Dispute Proceeding: 1. Does the Commission have the power to grant the relief sought? 2. Are the factual bases upon which it is contended relief is warranted, established? In particular, is it the case: 1. that the Respondent is accessing emails from PSA delegates to PSA solicitors and administrative support staff where those emails are marked "Sensitive – Legal" or are otherwise subject to legal professional privilege (Notice at [3] and first proposed Recommendation); 2. if so, has this interfered with the PSA's ability to obtain evidence in reply from Mr Saraceno in relation to the Award Proceeding and from other members of the PSA who have 'formed the view that their employment might be threatened and/or adversely impacted' if they participate in the Award Proceeding (Notice at [5]); 1. Does the dispute have a collective element and if not, should the Commission decline to grant relief for this reason? 2. Should the Commission decline to grant relief because the PSA failed to follow the grievance and dispute settling procedures set out in Clause 9 of the Award? 3. Assuming no other impediment, should the Commission grant the relief sought? 1. In the Victimisation Proceeding: 1. Has the Respondent rebutted the presumption that Mr Saraceno was investigated by the PSC after 27 October 2022; alleged to have engaged in misconduct; found to have engaged in misconduct; and threatened with termination, because he was a member and delegate of the PSA and/or he proposed to participate in the Award Proceeding? 2. If not, should the relief sought be granted? The Evidence 1. Before setting out my findings in respect of the facts giving rise to the Proceedings, I will explain the nature of the evidence adduced in the Proceedings. 2. The PSA did not call any witnesses, including the person at the heart of the dispute, Mr Saraceno, although he attended each day of the hearing. Instead, it relied on documents, in particular but not limited to, copies of the emails and attachments that Mr Saraceno had sent to various persons at the PSA, and oral testimony obtained in cross examination of the Respondent's witnesses. 3. The Respondent called two witnesses: Chief Inspector Newton and Superintendent Driver. Chief Inspector Newton is the Manager, Administrative Officer Conduct Unit, PSC. At the time of preparing his affidavit on 7 June 2023 [20] , Chief Inspector Newton had been in that role for three years. The role of the Manager, Administrative Officer Conduct Unit includes overseeing any investigation process undertaken, including the process set out under r 44 of the GSE (NSWPF) Rules. 4. Chief Inspector Newton reports to Superintendent Driver, who, since 6 December 2021 (except for a period of approximately four months when he was Acting Assistant Commissioner of the PSC) has performed the role of Commander of Misconduct & Management Support with the PSC. In his position Superintendent Driver is responsible for managing the complaints and misconduct process that is followed in respect of members of the NSWPF. It is not in dispute that he holds the delegated authority of the Respondent under s 69(4) of the GSE Act and r 46(4) of the (GSE (NSWPF) Rules, to take disciplinary action, including termination of employment, against administrative employees who have engaged in misconduct. 5. The Respondent also tendered certain documents as annexures to Superintendent Driver's affidavit dated 7 June 2023 [21] and separately, a copy of the PSA's 'Delegate's Handbook'. 6. Notably, the Respondent did not call Superintendent McDonald or Sergeant Alisa Flint, who assisted in the disciplinary investigation, to give evidence. The PSA submitted that, consistent with the principle in Jones v Dunkel [1959] HCA 9; 101 CLR 298, the Commission should infer that any evidence given by Superintendent McDonald would not have assisted the Respondent in discharging her onus. However, as Beech-Jones JA (as his Honour then was) explained in Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 (Brereton and Mitchelmore JJA agreeing) at [47] – [48]: 47. A Jones v Dunkel inference has relatively weak evidentiary value. It does not enable the trier of fact to infer that the absent evidence would have been positively adverse to the party (Hellicar at [168] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ and at [232] per Heydon J), and it does not enable a court to discount or diminish the value of the evidence that a party adduced (Hellicar at [164] to [170] and [233]). 48. In any event, the mode of reasoning suggested by Jones v Dunkel is directed to fact finding. There is no obligation on a jury or a judge to draw any such inference (Manly Council v Byrne and Anor [2004] NSWCA 123 at [52]). It follows that a failure to draw such an inference is not erroneous in law and does not raise any question or point of law. [22] 1. The PSA submitted that the absence of Superintendent McDonald went further than just the Commission drawing an inference that he would not have assisted the Respondent in discharging her onus. In the Applicant's Outline of Written Submissions After Hearing (ACS) the PSA made the following submissions: "… Indeed, the absence of Supt McDonald goes further - as he was the person who initiated the investigation, his failure to put on evidence justifying his decision with reference to the supposed seriousness of the misconduct leaves the Commission without relevant evidence, and also means that there is no evidence from the initial decision-maker explaining how an inquiry that directly involved Mr Saraceno's role as a union delegate and as an actual and proposed participant in proceedings in this Commission was not victimisation. To the extent that the Commission needs to draw inferences adverse to the respondent, Supt McDonald's absence from the witness box can give the Commission greater confidence to do so. 6. Further, had Supt McDonald been made available for cross examination he could have explained why, as Mr Saraceno's supervisor, he did not directly ask Mr Saraceno whether he had accessed the document, rather than initiate an email audit, and also address why, having identified by at least 27 October 2022 that Mr Saraceno was sending allegedly confidential police information to the applicant (including the applicant's solicitors), he did not give any direction to Mr Saraceno to cease the practice. 7. There is an air of entrapment about the respondent pursuing the further emails identified in the 10 March allegations letter. In these submissions the applicant points to an accumulation of concerns such as this one to support the submission that it cannot be excluded, on the balance of probabilities, that the prosecution of the misconduct allegations against Mr Saraceno has not been done in good faith, and that misconduct allegations themselves are exaggerated to the point that they lack a proper foundation, with the result that the Commission must find that the respondent has failed to discharge its onus." 1. As I have already explained, I am not prepared to allow the PSA to claim that the 'investigation' or 'inquiry' conducted by Superintendent McDonald, constituted victimisation in circumstances where no application was made to amend the application to include this allegation. Consequently, for the reason discussed earlier in this decision, the failure to call Superintendent McDonald only becomes important if his investigation, inquiry or complaint had a material effect on the reasons why Chief Inspector Newton and Superintendent Driver subsequently took detrimental actions against Mr Saraceno. For the reasons developed later in this decision, I have concluded that the actions of Superintendent McDonald did not have a material effect or otherwise influence, the decisions of Chief Inspector Newton and Superintendent Driver. The Facts Background 1. The Application for Relief from Victimisation stated, at paragraph [2], that Mr Saraceno is a member and union delegate of the PSA, that he has been employed by the Respondent as a special constable since 2009 and that at the time of the filing of the Application, was employed as a Field Supervisor. 2. Initially the Respondent did not admit that Mr Saraceno was a member and delegate of the PSA, but she ultimately and properly did so in closing oral submissions, after I drew counsel for the Respondent's attention to paragraphs 3.2(e) and (g) of the Model Litigant Policy for Civil Litigation. No evidence was led by the PSA as to how long or in what capacity Mr Saraceno had been employed by the Respondent, however Chief Inspector Newton confirmed in evidence that Mr Saraceno was a special constable within the SMU. 3. As I have already recorded, the PSA commenced the Award Proceeding on 21 July 2022. [23] On 14 October 2022 the PSA issued a Summons to Produce to the Respondent. [24] Paragraph 15 of the Schedule to the Summons sought production of: "A copy of any document recording a request for the re-alignment of the Security Management Unit from Communications and Security Command to Counter Terrorism and Special Tactics made in 2022 including any document with the document/file number D/2022/794046." 1. The Respondent tendered in evidence the first two pages of the document bearing the file number D/2022/794046 (Realignment Document) and an email chain between Ms McRobert and Mr Saraceno which referred to the document. [25] The PSA also tendered the email chain in evidence. [26] The email chain commenced with an email from Ms McRobert dated 13 October 2022 to Mr Saraceno, copied to Sandra Lockey of the PSA, with the subject line: "2022/00213646 – Crown Employees (NSW Police Force Special Constables) (Security) Award [SEC=UNOFFICAL]". It read as: "Hi Tony In our interview you referred to a Realignment document that mentioned the number of special constable positions (168) and how may vacancies (27) you referred to the realignment document is this the Communications and Security Management Unit Functional Review as this was from September 2018 – or is there a more updated realignment document? If so please sent it through, we are filing a summons for documents from NSW Police and will send you a copy once filed. Thanks Kind regards, Alison McRobert" (Errors in original) 1. Mr Saraceno responded to Ms McRobert's email by an email sent on 14 October 2022 at 8:29:47am to Ms McRobert, which read: "Hi Sandra I simply came across a document left on our Commanders old office and took photo's as per the attached. This document was only recently sent up the chain of Command ( 2022 ?) and you will also see the trim number for this document D/2022/794046, in the even you need to ask NSW police for a copy Tony Saraceno" (Errors in original) 1. The first two pages of the Realignment Document were attached to Mr Saraceno's email. The first page of the document shows a post-it note had been placed on the first page bearing the handwritten notation "sent 19/8 to WRR". Both pages of the document have a header bearing the words: "OFFICIAL: Sensitive". 2. It is open to me to infer from the content of Mr Saraceno email, and I do so, that Mr Saraceno was not authorised to photograph any part of the document and was not expressly authorised to send it to the PSA. In short, as the PSA itself submitted, he "opportunistically" [27] recorded data contained on the first two pages of the document by photographing them, and forwarded the photo to the PSA in response to a specific request for the document made by Ms McRobert. 3. Ms McRobert responded almost immediately to Mr Saraceno's email with an email sent to him on 14 October 2022 at 8:35am which read: "Thanks Tony- So you Don't have the full document ? We can include it in the summons if we know what to do called Kind regards, Alison McRobert" (Errors in original) 1. Mr Saraceno responded by email sent on 14 October 2022 at 8:53am which relevantly read: "Hi Alison, Sorry, I don't have the full document and should have photographed the lot when I had the chance." …." 1. The content of this email reinforces the inferential finding I made at paragraph [110] above. I accept the Respondent's counsel's oral submission that "consciousness of guilt arises from those mere suggestions in that email." [28] Referral by SMU to PSC 1. On 27 October 2022 Chief Inspector Newton received certain information from Superintendent Paul McDonald, the Commander of the SMU, regarding Mr Saraceno. As I have already observed, the referral of the matter from the SMU to the PSC for a disciplinary investigation was referred to by the parties' representatives from time to time as a 'complaint'. Chief Inspector Newton referred to the 'complaint' as a 'referral'. In any event, to the extent the complaint or referral was contained in a document, that document was not tendered in evidence by either party and as already recorded, Superintendent McDonald was not called. 2. The following is Chief Inspector Newton's summary of a "chronology of concerns in relation to the release of confidential police information" which Superintendent McDonald had apparently set out in the referral. In circumstances where Superintendent McDonald was not called as a witness, the PSA objected to the following hearsay evidence being admitted as proof of the facts or opinions asserted. After hearing argument, I determined to admit the evidence, but to limit the use to be made of the evidence as evidence only of information given to Chief Inspector Newton and not as evidence of the truth of any fact asserted. [29] "(a) on 18 October 2023 (sic), the SMU became aware of a summons to produce served on the Commissioner, NSW Police Force, to produce documents in relation to proceedings in the NSW Industrial Relations Commission brought by the Public Service Association (PSA), with the summons provided to the SMU with a view to them producing relevant documents. (b) Within the schedule section of the summons, numerous documents and information regarding the operation of the SMU were requested to be produced. One of the requested documents stood out to the SMU as peculiar due to the fact that the words contained within that specific request were verbatim to the words used in part of a report that had been authored by Communications & Security Command (CSC) on 12 August 2022, in relation to the realignment of the SMU from the CSC to the Counter Terrorism & Special Tactics Command (CTST). This particular report had been marked as 'Sensitive' and was, at that time, a report still being progressed through the chain of Command to the Commissioner of Police's Executive Team for approval (Report). The request also made mention of the Report's RMS number (D/2022/794046). The RMS system is the NSW Police Force's internal document management system, that allocates a unique number to every document, which is used for tracking purposes. This document number is attached to the top of page 1 of that Report. (c) Superintendent McDonald informed PSC he had possession of a printed copy of this Report. This copy was kept in the SMU Commander's office. While Superintendent McDonald's office was usually locked, it was unlocked in the approximately two weeks commencing from 12 September 2022, as the SMU Command Office was relocating within the building. (d) I understand from the report that SMU suspected, from the above, that a copy of the Report had somehow come into the possession of the PSA and enquiries were undertaken by SMU management to identify how this may have occurred. (e) A request was made of PSC by Superintendent McDonald to conduct an email audit of any SMU staff member, with search parameters designed to identify whether any person may have sent the Report by email to another party, whether internally or externally. PSC conducted this audit. The result of the audit revealed an email exchange dated 14 October 2022 between Mr Saraceno and a person who appears to be employed by the PSA, Ms Alison McRobert. (f) In view of this information, and as a risk mitigation strategy, SMU requested PSC conduct an audit of any additional emails that Mr Saraceno may have sent from his work email address to the PSA. This audit (which I understand was conducted by PSC, Strategic Coordination Unit) revealed dozens of emails between Mr Saraceno, PSA employees and other SMU PSA delegates, dating back to 2012. It was concluded that the majority of the emails were of no concern. However, there were others which PSC determined were necessary to be investigated, including emails marked as "Sensitive" that had been forwarded by Mr Saraceno to the PSA." 1. In cross examination Chief Inspector Newton confirmed, and I accept as fact, that: 1. at the time of receiving the communication from Superintendent McDonald on 27 October 2022 he was aware or became aware through the communication, of the Award Proceeding; [30] 2. that PSC had conducted the two email audits referred to above prior to 27 October 2022, that is, an initial audit to identify who had sent the document which had been referred to in the Summons (i.e. the Realignment Document) to the PSA, followed by an audit specifically of Mr Saraceno's emails [31] ; and 3. Mr Saraceno had been identified prior to 27 October 2022, as the person who had provided the Realignment Document to the PSA. [32] 1. After receiving the referral from Superintendent McDonald, the matter was allocated to Sergeant Alisa Flint, a case officer within the Administrative Officer Conduct Unit of PSC. Her role generally was to conduct assessments of alleged misconduct cases, liaise with the referring Command and obtain all relevant material and information. Chief Inspector Newton oversaw Sergeant Flint's work in respect of the referral received from Superintendent McDonald. 2. Chief Inspector Newton, and I infer Sergeant Flint, conducted a review of the emails which the earlier audit of Mr Saraceno's email had uncovered. After reviewing the emails Chief Inspector Newton formed the view: "that there were 26 instances where Mr Saraceno sent an email, some with attachments, externally to the NSWPF, where the disclosure of that information belonging to the NSWPF occurred without apparent authority." 1. In cross examination Chief Inspector Newton confirmed that he had formed the view, based on his personal review of the emails, that the sending of the identified emails constituted misconduct. [33] He was cross examined at length as to the extent of his review of the emails and their attachments, as I discuss later in this decision. 2. It is appropriate at this juncture to record that the Respondent tendered in evidence, as an annexure to Superintendent Driver's statement, a copy of the NSW Police Force's "Email and Internet Guidelines" dated 16 February 2021 (Email Guidelines). The content of the Email Guidelines is important in these Proceedings. They relevantly provided: Purpose The "Email and Internet Guidelines" have been created to support the corporate email and Internet policies contained within the NSW Police Force (NSWPF) Information Security Manual and provides employees with additional guidelines for use of NSWPF corporate email and Internet facilities. The objective of this document is to inform and provide guidance to NSWPF employees on: ● their obligation to use corporate email and Internet facilities in an effective, efficient and ethical manner ● requirements for dealing with inappropriate emails ● NSWPF ability to access and audit email/Internet usage ● repercussions for failure to comply with this document Scope This guideline document and governing policies applies to: ● all NSWPF employees regardless of status (sworn, unsworn, special constables, contractors and volunteers in policing etc) ● use of any NSWPF email or Internet facilities (from a NSWPF premises, home, remote or other location) ● all electronic messaging facilities provided by the NSWPF (i.e. including but not limited to the corporate email system, instant messaging/chat facilities and short message service [SMS]). … 9. Privacy, confidentiality and security of email and Internet 9.1 Privacy and ownership of NSW Police Force email and Internet NSWPF electronic mail and archive mail accounts remain the property of the NSW Police Force and system users should not consider any use of corporate email and Internet to be private. Accounts must be handled, used and treated accordingly. The NSWPF as well as individuals and/or bodies outside the organisation have the right to access NSWPF email and Internet records. This is one of the reasons the NSWPF cannot guarantee complete privacy protection of personal emails and Internet browsing on its corporate system. The NSWPF can access email and Internet records for administrative and compliance purposes. … 9.6 Forwarding Emails When forwarding or using part of someone else's email, regardless of the source or destination, it may be necessary to first gain their permission and acknowledgement as the information source. Internal NSWPF emails must not be forwarded outside of NSWPF email systems without prior authorisation. … 13. Auditing and compliance NSWPF employs a variety of electronic and manual auditing strategies to protect the integrity of its email and Internet systems. In accordance with government requirements, the NSWPF monitors email and Internet use to: ● ensure compliance ● investigate inappropriate use ● prevent inappropriate use All use of NSWPF email and Internet is electronically logged. All logged information can be retrieved by the NSWPF for its business needs (including complaint investigation – see Accessing archived data). 13.1 Email Auditing … Commander, Professional Standards Command The Commander, Professional Standards Command, has authority to access an employee's email. Presently that authority has been delegated to the Commander, Intelligence Unit, Professional Standards Command, or his/her delegated representative. The officer provided with access has authority to view the content of email items. … 13.3 Disciplinary Action … In line with government requirements on misuse of email and Internet, NSWPF takes breaches of the policy and/or guideline very seriously. Personnel who breach the policy and/or guideline will face management and/or disciplinary action commensurate with the level of breach. They may also face criminal charges. … 14.2 Accessing archived data Archived data will not be made available to a NSWPF Staff member without proper authorisation. Authorisation must be based on evidence that supports reasonable suspicion that an infringement policy or guidelines has occurred. However, evidence may be gathered by searching through the archive using parameters designed to detect possible infringements of the policies outlined in this document. In all cases the Commander, Professional Standards Command must give permission for access to the data. 1. The Respondent also tendered documents setting out the NSWPF's practice with respect to the marking of documents to ensure that access to documents is restricted to appropriate personnel. These practices were also replicated in parts of the Email Guidelines, which I have not repeated above. For present purposes it suffices to set out the following from the NSWPF's "Document Standards" dated 12 February 2021: 2.5 Confidentiality and information security classification On 11 January 2021 the NSW Police Force adopted the updated Commonwealth Protective Security Policy Framework. These apply to all documents and emails. All documents you produce for your work must be marked with a protective marking: The minimum protective marking is OFFICIAL for all work-related documents. ● SECRET ** restricted to commands with access to the Australian Secret Network (ASNET) system and an approved (Class B) safe ● PROTECTED ● OFFICIAL: Sensitive ● OFFICIAL ● UNOFFICIAL Sometimes additional restrictions apply and an information management marker (IMM) should be used. There are just three IMMs to choose from. ●If the information is subject to legal professional privilege, choose OFFICIAL: Sensitive - Legal Privilege ● If the information is subject to one or more legislative secrecy provisions, choose OFFICIAL: Sensitive – Legislative secrecy; ● And if the information to subject to provisions in the Privacy Act 1988, choose OFFICIAL: Sensitive – Personal Privacy. You will need to have the protective marking, and IMM if required, in the header and footer for each page. 1. The Respondent also tendered in evidence, without objection, the PSA's "Delegates' Handbook" and drew my attention to Section 2, headed "Your Role as a Delegate". That section contained the following paragraph: "USE OF EMAIL Delegates are entitled to use work email to communicate with union members. Remember to change your email signature to clearly articulate your email correspondence is in the capacity of a delegate and not your employed role. Management can access work emails, so consider using a private email address." 1. The Respondent also drew my attention to the following paragraph on page 40 of the Delegates' Handbook, found in Section 3: Getting Others Involved: "Email is a frequently used method of sharing ideas and info but remember not everyone always reads their emails and management are able, and have the right, to access all work email files." First Allegation Letter 1. On 23 February 2023 Chief Inspector Newton sent a letter to Mr Saraceno (23 February Letter) in the following terms (with email addresses redacted): "Notification of Misconduct Matter Details of allegation, Action that may be taken and Opportunity to make a statement Dear Mr Saraceno, The Administrative Officer Conduct Unit is managing an administrative employee misconduct matter as an allegation has been made that you have engaged in misconduct. It has been decided to proceed with this misconduct matter, reference AOM2022-0138 and you are now advised of the details of the allegations as follows: Allegation 1 It is alleged that you have, without authority, entered the SMU Commander's office and accessed a report - D/2022/794046 - and seemingly read the report and photographed the first two pages of that report. Allegation details: In September 2022 you, without permission, entered the unoccupied SMU Commander's Office. At that time a sensitive report (D/2022/794046 - relating to the re-alignment of the SMU to the CT&ST Command) was on the commander's desk and you accessed the report, taking a full photograph of page 1 and a partial photograph of page 2 of that report. There was no operational need for you to enter the commander's officer, nor was there any need for you to access or photograph the report on the commander's desk. At 8.22am on 14 October 2022, you sent two photographs of report D/2022/794046 from your private email account; XXXXX@gmail.com to your police email address; XXXXX@police.nsw.gov.au. At 8.30am on 14 October 2022, you, from your work email disseminated the document to a third party with the below commentary: "I simply came across a document left on our Commanders old office and took photo's as per the attached. This document was only recently sent up the chain of Command ( 2022 ?) and you will also see the trim number for this document D120221794046, in the event you need to ask NSW police for a copy" At 8.35am, you received a response asking if you had a full copy of the document to which you replied, at 8.53am; "Sorry, I don't have the full document and should have photographed the lot when I had the chance·". The uninvited and unauthorised access to the commander's office is unprofessional and is a breach of the NSW Police Force Code of Conduct and Ethics – points 1,2,3,5 6,7,8 and 9 and a breach of the NSW Police Force Statement of Values, points a, b, g and h. Allegation 2 It is alleged that you have without authority, disclosed confidential NSW Police Force information. Allegation details: An audit of your work email address from August 2017 to October 2022 has identified twenty-six (26) occasions in which you have disseminated confidential NSW Police Force information without prior authorisation, in the form of internal email communications from members of the Senior Management Team along with thirty-eight (38) individual NSWPF documents. The confidential NSW Police Force information disclosed without authority is outlined in Annexure A of the notification of allegation details to the employee. The repeated disclosure of NSWPF information between 2017 to 2022 was unauthorised and contrary to confidentiality requirements set out in cl.76 Police Regulations 2015. You are invited to make a statement in response to the allegations. You do not have to make a statement, but if you do your statement is to be provided within 14 days of your receipt of this correspondence. Your statement can be emailed to #XXX or external email to XXXXX@police.nsw.gov.au. Your statement, if made, will be considered in the determination of this matter. You will be advised of the decision to either proceed or not proceed with this misconduct matter. If a finding of misconduct by you is made the following action may be taken: • terminate your employment (without giving you an opportunity to resign) • terminate your employment (after giving you the opportunity to resign) per s.69(4)(a) - (b) of the Government Sector Employment Act 2013. You are required to maintain the integrity of this misconduct matter and you are prohibited from discussing this matter with any person you know or believe may be a witness or otherwise involved. You are, however, permitted to discuss this matter, on a confidential basis, with a suitable support person, health care practitioner, legal practitioner, or union representative. You may arrange a suitable time with your commander to view copies of all emails referred to in Annexure A of the notification of allegation details to the employee. Material provided to you during this misconduct matter is strictly confidential and not to be disseminated, except for the purpose of obtaining legal advice. Should you wish to discuss the procedural aspect of this matter or seek additional information please contact Sgt Flint (02) 9355 8457. Welfare and other support will be provided by your command I also take this opportunity to remind you the Employee Assistance Program is available to you to assist if required. Sincerely SJ Newton Manager, AOCU Delegate 23 February 2023" 1. Annexure A to the 23 February Letter contained a table with a list of 26 emails with details of the date and time sent, the sender, the recipient, the subject line and the description of any documents attached to the email. The description of the attached documents appeared to be no more than the digital file name of the attached document. 2. The Respondent did not tender the emails in evidence, however the PSA, during cross examination, tendered four of the emails and two of the attachments and counsel for the PSA cross examined Chief Inspector Newton and Superintendent Driver in relation to them. During cross examination of Superintendent Driver, the PSA sought to tender two additional attachments, however in each case, after objection to the tender was made by the Respondent, the PSA withdrew its tender. I discuss this further later in this decision. 3. Mr Saraceno was the sender of all 26 emails listed in the 23 February Letter and it is not in dispute that all of them were sent to someone employed by the PSA. I can and do infer, from all of the information contained in Annexure A to the 23 February Letter and from the content of the emails and attachments which were admitted into evidence, that all of the emails were sent by Mr Saraceno to the PSA in the performance of his role as a PSA delegate. 4. Only four of the 26 emails were sent to Ms McRobert (two of which have been detailed above). The remaining 22 were sent to other persons. There is no evidence that the other persons were legal practitioners. There was no direct evidence as to the purpose, dominant or otherwise, of any of the emails. As already observed neither Mr Saraceno nor Ms McRobert gave evidence. At best, I can infer that the sending of the emails were to further the interests, in some way or other, of PSA members. 5. The PSA submitted, without adequately explaining why, that "there is simply no doubt that the documents forwarded to the applicant's lawyer were legally privileged". [34] As I have already explained only four of the emails were actually sent to a known lawyer. The ACS at [40]- [41] set out the tests for establishing legal privilege under the Evidence Act 1995 (NSW) and at common law. No attempt was made to explain which test is applicable (or why) or moreover, why the facts, as established, would enable the Commission to conclude that the documents forwarded by Mr Saraceno to various persons at the PSA were legally privileged under the Evidence Act, or, more appropriately, the common law. It is trite to observe that the party claiming privilege carries the onus of establishing the claims, including each factual element necessary to establish the requisite dominant purpose: AWB Ltd v Cole (No 5) [2006] FCA 1234; 155 FCR 30 at [44]; Robertson v Singtel Optus Pty Ltd [2023] FCA 1392 at [88]. 6. It is also trite to observe that regardless which standard is applied, privilege attaches to communications made to or by a lawyer, or documents prepared to, by or at the request of a lawyer for the purpose of providing legal advice or for use in litigation, or communications between a party to litigation and another person for the purposes of litigation. The foregoing is not intended to be a precise description of the circumstances in which privilege attaches to communications or documents (noting that slightly different criteria apply depending on whether the common law or Evidence Act applies), rather my point is that, save for where a party is unrepresented (which is governed by s 120 of the Evidence Act), the involvement of a lawyer is key. As I have already observed, only four of the subject emails were sent to Ms McRobert, who is the only known lawyer. 7. Counsel for the Respondent referred me to the decision of Harrison DP in Capotosto v Uinta Beds t/as Sleep City [2001] NSWIRComm 219 in which the Deputy President referred (at [8]) to his earlier ex tempore ruling in the same matter, not to set aside a summons to give evidence issued to union officials, in part because he did not accept the union's argument that they should not be required to give evidence as the "principles of legal professional privileged applied." In giving that ruling Harrison DP said: "Union officials do not as a matter of law have refuge in legal professional privilege, simply because they are union officials. Union officials are not free or immune from summons to proceedings. There might be circumstances however where it is appropriate and proper to afford union officials the principles of legal professional privilege. … It is appropriate that those persons involved be brought to give evidence about those events. I say that and restate the caveat in respect to private confidential conversations that the union officials may have had with their member, not in the presence of the employer because I do think that is an area where a degree of privilege ought be afforded." 1. The learned Deputy President did not make clear the basis upon which he considered "a degree of privilege ought be afforded" to union officials and their members. Certainly, the Evidence Act does not provide such a privilege. 2. Counsel for the respondent submitted that earlier versions of the Commission's Rules had recognised the concept of "industrial privilege", by providing that communications between a registered organisation and members or delegates were privileged, but that the "notion of industrial privilege is no longer recognised." [35] The PSA provided no authority and pointed to no legislative provision, to support a view that communications between a union and a delegate, even if undertaken for the dominant purpose of proceedings in this Commission, is privileged, if a lawyer was not at least in some way involved in the communication. 3. In the present matter, it is arguable that emails sent by Mr Saraceno to any person at the PSA for the dominant purpose of the Award Proceeding, given the apparent involvement of Ms McRobert in that Proceeding, would prima facie be privileged. Assuming that is correct, the questions remain however, was that dominant purpose established on the evidence and are the other requirements to establish privilege, established? 4. In the case of some of the emails, sent in and after July 2022 (when the Award Proceeding was commenced), I can and do infer, from their date and the subject line, that they were created for the dominant purpose of the PSA providing services for the benefit of its members relating to the Award Proceeding. However, I am only able to properly draw such an inference in relation to six of the emails (Numbered 12, 20, 21, 22, 24 and 25 in Annexure A), which bore the subject lines: "Work value case"; "Work value case Special Constables"; "Work Value case info"; "RE: Special Constables Statement"; "RE: 2022/00213646 – Crown Employees (NSW Police Force Special Constables) (Security) Award". The recorded data in relation to the balance of the other emails is not sufficient to draw such an inference and no other evidence allows me to do so. 5. However, despite some of the emails being prepared for the dominant purpose of prosecuting the Award Proceeding, I do not accept that any of the communications are privileged, either at common law or pursuant to the Evidence Act as they simply do not possess a quality essential to both tests: that the communication is confidential. As French J (as his Honour then was) explained in J-Corp P/L v Australian Builders Labourers Federated Union of Workers Western Australian Branch [1992] FCA 793; 38 FCR 452 at [10]: "It is a pre-requisite to the operation of the privilege that the material for which it is claimed should have been confidential in the context of the solicitor/client relationship". 6. The Evidence Act contains definitions, in s 117, of 'confidential communication' and 'confidential document' which focus on the duty of the maker or recipient being under an express or implied obligation not to disclosure its contents. In the absence of any evidence from either the marker or the recipients of the emails and attachments, I am not satisfied that the communications or documents were confidential. On the contrary, I consider that any email sent by a member or delegate of the PSA to the PSA, using the NSWPF email system, cannot be regarded as confidential in the context of a solicitor/client relationship between the member/delegate and the PSA, in circumstances where the NSWPF's Email Guidelines expressly provide that: 1. NSWPF electronic mail and archive mail accounts remain the property of the NSW Police Force and system users should not consider any use of corporate email to be private: cl 9.1 of the Email Guidelines; 2. the NSWPF as well as individuals and/or bodies outside the organisation have the right to access NSWPF email and this is a reason why NSWPF cannot guarantee complete privacy protection of personal emails on its corporate system: cl 9.1; 3. the NSWPF can access email for administrative and compliance purposes: cl 9.1; 4. the NSWP monitors emails to ensure compliance, investigate appropriate use and prevent inappropriate use: cl 13; 5. the use of NSWPF email is electronically logged and all logged information can be retrieved by NSWPF for its business needs: cl 13; 6. the Commander, PSC, has authority to access and view an employee's email and can sub-delegate that authority: cl 13.1. 1. The lack of confidentiality of any such communication is implicitly acknowledged by the PSA in its Delegates Handbook by its caution that "management can access work emails, so consider using a private email address." Plainly, if Mr Saraceno wished to ensure that his communications with the PSA were confidential, and so potentially privileged, he ought to have sent such communications from a private email address and not one owned and managed by his employer/respondent to the Award Proceeding. 2. Clause 59 of the Award – which permits an accredited union delegate to have access to the NSWPF telephone, facsimile, internet and email facilities to undertake authorised union activities - does not afford a right upon delegates to keep communications made using those facilities confidential. Again, this is expressly acknowledged in the PSA's Delegates Handbook. The PSA provided no authority to support a contrary view. I reject any suggestion that implicit in the rights afforded by cl 59 is the right to confidentiality of communications made using NSWPF facilities, in the face of the clear statements to the contrary in the Email Guidelines and in the absence of any other evidence or authority to support such a finding. 3. For completeness I note that the PSA submitted that the emails were privileged or at least were ostensibly privileged, because they contained in the subject line, the words "DLM: Sensitive: Legal". These words in and of themselves do not make a communication or document privileged. The test is an objective one. 4. In the circumstances I am not satisfied that any of the emails listed in the 23 February 2023 were privileged. 5. Returning to the chronology of events, Haywards Solicitors, on behalf of Mr Saraceno, sought and obtained an extension of time in which to respond to the allegations set out in the 23 February letter. 6. At some point after the matter had been referred to Chief Inspector Newton by Superintendent McDonald, at least one and perhaps two further audits of Mr Saraceno's emails were conducted. I accept that Sergeant Flint and Chief Inspector Newton conducted at least one audit specifically of Mr Saraceno's emails and identified additional emails which Chief Inspector Newton regarded as "further instances of misconduct." 7. On 8 March 2023, Sergeant Flint emailed Haywards Solicitors advising the extension request was under consideration, however there had been further evidence discovered which indicated misconduct. Second Allegation Letter 1. On 10 March 2023 Chief Inspector Newton sent a letter to Mr Saraceno, care of his solicitors, Haywards Solicitors, (10 March Letter) which read as follows (with email addresses redacted): "Notification of further allegation details and extension of time to make a statement Dear Mr Saraceno, I refer to my 23 February 2023 correspondence where you were advised of an administrative officer misconduct matter alleging misconduct by you. Accompanying that letter was a schedule of emails subject of the allegation indicating there were 26 emails with 38 attachments considered confidential police information. Included at line 22 of my document is an email sent by you on 12 September 2022 at 22:08 hours which includes six attachments. It is noted that one of those attachments, an affidavit by you for IRC proceedings, is not confidential police information, it is referenced for context only given it forms part of your email. Therefore, the allegation detail is amended to reflect that there were 37 attachments considered confidential police information. An additional audit of your NSW Police Force email account has been conducted and further instances of misconduct - release confidential police information by you - have been identified. Those additional instances are now included in the allegation of misconduct. Further allegation details: An audit of your work email address from November 2022 to February 2023 has identified 10 occasions in which you have disseminated confidential NSW Police Force information without prior authorisation, in the form of internal email communications from members of the Senior Management Team along with 22 individual NSWPF documents. The confidential NSW Police Force information disclosed without authority, referenced above, is outlined in Annexure A of this notification. Included at lines 1 and 2 of Annexure A respectively are, an email sent by you on 21 November 2022 at 00:34 hours which includes six attachments and an email sent by you on 22 November 2022 at 3:45:02 hours which includes two attachments. It is noted that one of those attachments in each of the emails, is an affidavit by you for IRC proceedings, is not confidential information, it is reference for context only given it forms part of your email. The disclosure of NSWPF information between November 2022 and February 2023 was unauthorised and contrary to confidentiality requirements set out in cl. 76 Police Regulations 2015. You are invited to make a statement in response to the allegations. You do not have to make a statement, but if you do your statement is to be provided within 14 days of your receipt of this correspondence. Your statement can be emailed to #XXX or external email to XXXXX@police.nsw.gov.au. Your statement, if made, will be considered in the determination of this matter. You will be advised of the decision to either proceed or not proceed with this misconduct matter. Taking into account these new details and your request, made by Haywards Solicitors, for an extension to the due date for your response the due date for any statement in response you wish to make is amended to 31 March 2023. I re-iterate that if a finding of misconduct by you is made the following action may be taken: • terminate your employment (without giving you an opportunity to resign) • terminate your employment (after giving you the opportunity to resign) per s.69(4)(a) - (b) of the Government Sector Employment Act 2013. You are required to maintain the integrity of this misconduct matter and you are prohibited from discussing this matter with any person you know or believe may be a witness or otherwise involved. You are, however, permitted to discuss this matter, on a confidential basis, with a suitable support person, health care practitioner, legal practitioner, or union representative. Should you wish to discuss the procedural aspect of this matter or seek additional information please contact Sgt Flint (02) 9355 8457. Welfare and other support will be provided by your command I also take this opportunity to remind you the Employee Assistance Program is available to you to assist if required. Sincerely SJ Newton Manager, AOCU Delegate 10 March 2023" 1. Annexure A to the 10 March Letter contained a table with a list of ten emails with details of the date and time sent, the sender, the recipient, the subject line and the description of any documents attached to the email. The date range of the emails was 21 November 2022 to 12 February 2023. 2. Again, the Respondent did not tender the emails in evidence, however the PSA tendered five of the emails and a number of the attachments and counsel for the PSA cross examined Chief Inspector Newton and Superintendent Driver in relation to them. 3. Again, Mr Saraceno was the sender of all the emails and it is not in dispute that all of them were sent to someone employed by the PSA. I infer that all ten emails were sent by Mr Saraceno to the PSA in the performance of his role as a PSA delegate. Five of the emails were sent to Ms McRobert. The other five were sent to other persons employed by the PSA. There is no evidence that the other persons were legal practitioners. 4. For the reasons I have already explained above, I do not consider than any of the emails were confidential viz-a-viz the PSA and Mr Saraceno. Consequently I do not consider that they are protected by legal privilege, although for completeness I infer, from the data recorded in Annexure A, (and from the content of and attachment to, emails 1 and 7 which were tendered in evidence [36] ), that the emails numbered 1, 2 and 7, were sent to the PSA for the dominant purpose of the PSA providing services for the benefit of its members relating to proceedings in the Commission, including the Award Proceeding. 5. According to Chief Inspector Newton, and I accept, thereafter there was further correspondence between the NSWPF and Haywards Solicitors, and on 24 March 2023 Acting Inspector Jackson, who was relieving Chief Inspector Newton while he was on leave, contacted Haywards Solicitors to advise that an extension for a response to the allegations had been granted to 14 April 2023. 6. On or about 13 April 2023 Mr Saraceno attended the Sydney Police Centre with Haywards Solicitors to review the documents referred to in the annexures to the 23 February Letter and 10 March Letter. It seems a request was made by Mr Saraceno's lawyers for copies of the documents to be provided to them, however Chief Inspector Newton, at some point prior to 13 April 2023, denied this request. Instead copies of the documents were displayed on a "wall screen" under the supervision of Damian Goodfellow. I note that counsel for the PSA accepted during submissions that the PSA had copies of the emails and their attachments, as, self-evidently, they had been emailed to them. [37] 7. On 8 May 2023 Haywards Solicitors wrote to Chief Inspector Newton asserting that a failure to provide copies of the documents amounted to a denial of procedural fairness, asserting that the NSWPF had accessed legally privileged communications between Mr Saraceno and the solicitors employed at the PSA and advising that Mr Saraceno had informed them that the PSA was "considering its options including filing proceedings in relation to the victimisation of Mr Sarceno as a union delegate and for participating in industrial legal proceedings, and seek (sic) a permanent stay of the disciplinary investigation." Haywards requested Chief Inspector Newton confirm by 5pm on 9 May 2023 that NSWPF would not take further steps in relation to the disciplinary proceeding. Such confirmation was not forthcoming. 8. It transpires that Chief Inspector Newton was not in his role on 8 May 2023 and his involvement in the matter ceased in or around the time he went on leave, that is, some time prior to 24 March 2023. [38] 9. Sometime between 10 and 15 May 2023 the matter was referred to Superintendent Driver "for consideration as to whether to make a finding that [Mr Saraceno] had engaged in misconduct." [39] There is no evidence as to who made the decision to refer the matter to Superintendent Driver. Substantial and operative cause of Chief Inspector Newton taking detrimental action 1. Before setting out what was sent to Superintendent Driver and what happened thereafter, I will set out my findings in relation to what activated Chief Inspector Newton to initiate a disciplinary investigation following the receipt of the referral or complaint from the SMU/Superintendent McDonald; to continue the disciplinary investigation and to make allegations of misconduct against Mr Saraceno (this being the alleged victimisation which is attributable to Chief Inspector Newton). 2. The final six paragraphs of Chief Inspector Newton's affidavit were headed "Reasons for investigation", were not objected to and read as follows: 20. Any communications between Mr Saraceno and the PSA that were identified as part of the audit, but did not involve, or appear to involve, the unauthorised disclosure of any information belonging to the NSW Police Force, were not included in the allegations against Mr Saraceno. 21. The only focus of PSC investigation were emails sent by Mr Saraceno to any third party which contained information belonging to the NSW Police Force, and which Mr Saraceno had no apparent authority to release to a third party. 22. The reasons why PSC initiated a misconduct matter against Mr Saraceno, including auditing his emails, and the reasons why I issued him with allegation letters, was because of the suspicion formed by SMU originally, and later by me, that he had engaged in misconduct in disclosing information of the NSW Police Force to the PSA without authority. 23. To the extent it is alleged that I initiated a misconduct matter against Mr Saraceno or issued the allegation letters to him because he was a union delegate or a participant in industrial proceedings, I deny this. I took those steps because, as set out above, I am responsible for managing matters involving misconduct by administrative employees, and there were concerns, based on evidence PSC obtained, that Mr Saraceno had engaged in misconduct. There was no other reason for me to progress the matter against Mr Saraceno. 24. As referred to above, this material is sensitive and confidential, and was only shown to Mr Saraceno and his legal representative at the Sydney Police Centre, without copies being provided, such is the confidential nature of the investigation and the documents involved. 25. Beyond auditing all NSWPF emails to establish whether the Report had been emailed externally, and if so, by who, PSC have conducted no further audits of any NSW Police Force email accounts, other than in relation to Mr Saraceno, in relation to this matter. To the extent the Dispute filed by the PSA seems to suggest that the NSWPF are specifically auditing emails of other Special Constables or PSA delegates, that is not correct. No such auditing is occurring. PSC only conducts email audits where relevant to allegations of misconduct. As set out above, Mr Saraceno came to be audited due to suspicions he had engaged in misconduct. 1. As will be observed, Chief Inspector Newton denies initiating a misconduct matter or making allegations of misconduct against Mr Saraceno for the identified prohibited reasons. His stated reason for the investigation and allegations of misconduct was the disclosure of information of the NSWPF to the PSA without authority. If I accept that evidence, the victimisation claim, to the extent it is based on detrimental action taken by Chief Inspector Newton, must fail. 2. The PSA submitted that I would not accept Chief Inspector Newton's evidence, or that it alone, does not discharge the Respondent's onus, for the following reasons: 1. Chief Inspector Newton was unable to explain in a number of instances why a particular email or attachment to an email was confidential or otherwise in breach of reg 76 of the Police Regulation and his evidence was that he had not read every attachment. [40] 2. At least some of the information provided by Mr Saraceno was not in fact confidential to NSWPF and/or did not breach reg 76, such that the Commission would not be satisfied that "Mr Saraceno's emails to the union constituted misconduct sufficient to find that the respondent had discharged its onus." [41] 3. The Respondent did not put evidence of the "confidential" emails or their attachments before the Commission, which had "the effect of disguising from the Commission" the non-confidential nature of some attachments "but also obscured the fact that every communication was for a work-related purpose" or in other words, involved Mr Saraceno "discharging the official business associated with his official position as a union delegate – that is, he had [implied][ authority to do so." [42] 4. There was an "air of entrapment about the respondent pursuing the further emails identified in the 10 March allegations letter" rather than Mr Saraceno being told, in or around October/November 2022, to cease forwarding documents to the PSA such that "it cannot be excluded, on the balance of probabilities, that the prosecution of the misconduct allegations against Mr Saraceno has not been done in good faith, and that misconduct allegations themselves are exaggerated to the point that they lack a proper foundation." [43] 5. Chief Inspector Newton relied on information from Superintendent McDonald to make Allegation 1, however Superintendent McDonald was not called to explain "the circumstances in which a "Sensitive" report came to be left by him in an unlocked and possibly vacant office" [44] and more generally "it was incumbent on the respondent to call Supt McDonald to give evidence to the effect that his decision to initiate the inquiry was unrelated to Mr Saraceno's union activities or participation in the Award proceedings." [45] 1. I will address each of these submissions shortly, however it must be recorded that Chief Inspector Newton's reasons for initiating and continuing the disciplinary investigation and for making the allegations of misconduct were not directly challenged in cross examination. Rather, counsel for the PSA focused on eliciting evidence from Chief Inspector Newton which appeared to be designed to cast doubt upon the correctness of his view that Mr Saraceno had engaged in misconduct. On occasion she succeeded. In particular, as I will discuss in more detail later in this decision, she succeeded in showing that not every document forwarded by Mr Saraceno to the PSA could be regarded as confidential, at least at general law. However, at no time did counsel for the PSA then put to Chief Inspector Newton (or to Superintendent Driver) that in those circumstances his explanation for the investigation and allegations (and in the case of Superintendent Driver, findings) could not be believed, let alone that he had not acted in good faith. 2. As the Respondent submitted in her Closing Submissions filed on 3 July 2023 (RCS) at [56], concluding that two commissioned police officers sought to mislead the Commission by giving evidence that they had not engaged in victimisation would be a serious finding. I would add, this is even more so if I were to reject their evidence because, as urged by the PSA, I considered their assessment of Mr Saraceno's conduct was so lacking in foundation that I should conclude that they had not acted in good faith. If their evidence was to be rejected for a particular reason, in particular if I were to infer from the objective weakness of their case against Mr Saraceno, that they had not acted in good faith, consistent with the rule in Brown v Dunn (1894) 6 R(HL) 67, this needed to be put squarely to them. As it was not, I do not propose to entertain such an argument. 3. In any event, as I will explain, I do not consider that the evidence is such that I could conclude that either Chief Inspector Newton or Superintendent Driver acted other than in good faith and any concern with the correctness of their views as to whether Mr Saraceno had engaged in misconduct falls well short of entitling me to disbelieve their evidence that they were not motivated by a prohibited reason when they took the detrimental actions that they did against Mr Saraceno. 4. The parties clashed throughout the hearing over the relevance of whether Mr Saraceno had in fact engaged in misconduct. The Respondent submitted that whether or not Mr Saraceno had, in fact, engaged in misconduct "is irrelevant to both proceedings and not a matter that the Commission needs to decide" [46] : "These are not unfair dismissal proceedings under Part 6 of Chapter 2 of the IR Act. These proceedings are not concerned with the question of whether or not Mr Saraceno has, in fact, engaged in misconduct or not. Such an enquiry is irrelevant to these proceedings. … … even if Chief Inspector Newton or Superintendent Driver are mistaken in any way, and in particular, even if the latter is mistaken in his conclusion that Mr Saraceno engaged in misconduct (which is not conceded), it does not follow that Mr Saraceno has been victimised on a proscribed ground. The decision-maker's actual reasons, including their beliefs, even if mistaken, are the focus of the Commission's factual enquiry." [47] 1. The PSA meanwhile considered that it was highly relevant. Its submissions included: "The issue for the Commission is whether it is satisfied by the respondent's evidence that Mr Saraceno's emails to the union constituted misconduct sufficient to find that the respondent had discharged its onus." [48] … "Overall it is open to the Commission to conclude that the prosecution of the disciplinary complaint against Mr Saraceno is either baseless, or that his conduct falls well below conduct that could or should be sanctioned with a penalty of termination of employment, such as to raise sufficient doubts about the respondent's bona fides to conclude that the respondent has not discharged the onus on it, and as such the commencement, continuation and finalisation of the misconduct process involves victimisation of Mr Saraceno due to his union membership and/or his participation or proposed participation in the Award proceedings." [49] 1. Consistent with the third principle identified by Wigney J in Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) and with the approach taken in Anglo Coal, I agree with the Respondent that I do not need to decide whether in fact Mr Saraceno engaged in misconduct. Axiomatically, I disagree with the PSA that I must be satisfied that Mr Saraceno's emails to the PSA constituted misconduct in order to be satisfied that the Respondent has discharged her onus. Such a submission entirely misconceives the Commission's role, which is to determine, on the balance of probabilities, what actuated the Respondent's employees and delegates to take the actions which they did and whether a prohibited reason was a substantial and operative cause of the detrimental action. As the Respondent submitted, and I accept: ".. even if some particulars of the findings of misconduct were unsound, it does not follow, either logically or inferentially, that the witnesses were actuated by the proscribed factors in reaching those incorrect conclusions. It does not disturb the evidence as to the motivations of the decision makers. As the jurisprudence makes clear, just because a decision-maker may reach a conclusion that is factually wrong or mistaken, it does not follow that their evidence as to their motivations is disturbed, or that the reverse onus has not been met." [50] 1. That said, as I noted at [45] above it is conceivable that the evidence so seriously undermines the correctness or the soundness of the decision-maker's belief that the Commission could be entitled to infer (alone or, more likely, supported by other evidence) that the belief was not, in fact, genuinely held. However, as I have already indicated, I do not propose to entertain such a submission when it was not put squarely to the decision makers in cross examination. In any event, for the reasons I will now set out, the evidence falls a long way short of enabling such an inference to be drawn. Chief Inspector Newton's evidence as to his review and assessment of the emails 1. Chief Inspector Newton gave the following evidence in chief: 8. When PSC commenced its assessment of the complaint, we began by looking at the emails that had already been identified as part of the email audits, as set out above. 9. Following the completion of the review of those emails, I formed the view that there were 26 instances where Mr Saraceno sent an email, with some attachments, externally to the NSWPF, where the disclosure of that information belonging to the NSWPF occurred without apparent authority. 1. The PSA cross examined Chief Inspector Newton in relation to this evidence and as noted at [158] above, ultimately submitted that I would not accept his explanation as to the reason for the investigation and allegations, because: 1. he was unable to explain in a number of instances why a particular email or attachment to an email was confidential or otherwise in breach of reg 76 of the Police Regulation; 2. he had not read every attachment; and 3. some of the emails and attachments were not confidential and/or did not breach reg 76. 1. It is the case that Chief Inspector Newton made some concessions in cross examination which raise some questions regarding whether Mr Saraceno in fact engaged in misconduct in respect of each document referred to the Annexures to the Allegations Letters. On the other hand, he also gave evidence which bolstered his evidence that the reason he initiated a misconduct matter and made allegations against Mr Saraceno was solely because he considered that Mr Saraceno had provided sensitive and confidential information to the PSA without authority. In particular, Chief Inspector Newton gave the following evidence in cross examination: 1. he personally reviewed the emails and the attachments to them, that had been obtained through each of the email audits and personally determined whether they constituted misconduct [51] ; 2. he had not read the draft statement of Mr Saraceno that had been listed as an attachment to email number 22 in Annexure A to the 23 February Letter [52] ; 3. it is possible that he did not actually read other attachments before he included them in the 23 February Letter [53] ; 4. there were documents listed as attachments in the schedule to the 23 February Letter which he had "not read in their entirety" [54] ; 5. the inclusion of a news article published on 7 August 2019 in the 'Western Weekender' [55] as a confidential attachment to email number 21 in Annexure A to the 23 February Letter was "an error … it shouldn't have been included as a confidential police [document]" [56] , but it was included "for completeness as an attachment as one of the four attachments to the email" [57] , as where more than one attachment appeared on an email they were included in the descriptor whether or not they were actually part of the misconduct allegation [58] and despite stating in the 23 February Letter that there were 38 individual NSWPF documents (revised to 37 in the 10 March Letter) that were disseminated without prior authorisation; 6. he or Sergeant Flint prepared Annexure A to the 23 February Letter, he could not be sure who [59] ; 7. Godfrey Reports – a term used by the NSWPF to describe a document providing information or making a recommendation to, or seeking the approval of, a senior officer [60] - are in all cases confidential and protected from disclosure by reg 76 of the Police Regulation [61] irrespective of the actual content of the document [62] and despite Godfrey Reports having different levels of sensitivity [63] , as they concern the "business of the New South Wales Police Force" [64] ; 8. the attachments to email number 11 in Annexure A to the 23 February Letter [65] comprised two Godfrey Reports concerning the insignia used to represent the ranks of Special Constables, one of which had been authored by Mr Saraceno [66] ; and 9. one of the attachments to email number 1 in Annexure A to the 10 March Letter [67] was a report which was possibly prepared by Mr Saraceno regarding a review of x-ray training, [68] but even if that were so, Chief Inspector Newton did not accept that it was "available" to Mr Saraceno "to provide to the union evidence of the work he'd performed in respect of the x-ray screening machine" [69] because "it's a NSW Police Document by virtue of our crest on the front of it" [70] , although he was unaware whether the document had in fact been communicated to anyone within NSWPF [71] . 1. During re-examination Chief Inspector Newton explained that he did not read all of the documents attached to the emails because: "The inclusion, the emails, regardless of the number of attachments, if one of the attachments was considered to be misconduct, it was included on that basis and I was then satisfied that the email itself was the communication that would be in breach of the disclosure requirements." [72] 1. He also confirmed that he looked at or "skimmed" each attachment [73] and that the words in the subject line "DLM=for official use only" and "SEC=Official" indicated to him that the document was an "official", NSWPF document and therefore that it was confidential. 2. I accept that the cross examination of Chief Inspector Newton indicated that he may not have carefully considered all of the 26 emails and each of the 37 or 38 document attached to those emails, and it is possible that by reason of his cursory approach to the documents, or simply because he is wrong about the documents being confidential and/or caught by reg 76 of the Police Regulation, that he is wrong to conclude that Mr Saraceno has engaged in misconduct. However, with the exception of the concession made about the news article attached to email number 21, he was unshaken in cross examination as to his belief that one or more of the documents associated with each email (i.e the email itself or one or more its attachments) are confidential to NSWPF and that consequently Mr Saraceno had engaged in misconduct by forwarding them to the PSA. Chief Inspector Newton gave his evidence carefully and dispassionately and he gave me no reason to disbelieve his evidence as to the reasons why he took the actions which he did. Indeed, the concessions he made regarding the status of some of the documents - ostensibly against interest – point only to him being an honest, reliable witness. His concessions were not sufficient to cause me to doubt that Chief Inspector Newton had, from his personal review of the emails and attachments, considered that, rightly or wrongly, one or more of the documents associated with each email was confidential. It may well be that his review could have been more rigorous, however, it was not so deficient as to make me doubt the veracity of his evidence. 3. I certainly do not consider that the allegations made by Chief Inspector Newton that Mr Saraceno had engaged in misconduct for the reasons stated, to be so lacking in foundation that I would consider that Chief Inspector's Newton did not genuinely hold that view and was activated by the alleged improper motive, noting that I am not prepared to entertain that argument in event in circumstances where this was not put to him. 4. In all the circumstances I accept Chief Inspector Newton's evidence that he initiated a misconduct investigation into Mr Saraceno and issued the allegation letters to him because he considered (rightly or wrongly) that he had engaged in misconduct and that he had not done these things because Mr Saraceno was a union delegate or a participant in industrial proceedings. The Involvement of Superintendent McDonald 1. As I have already explained, if Superintendent McDonald had a material effect on the decision to take detrimental action against Mr Saraceno in the form listed in paragraph [91], Superintendent McDonald's motivations for taking the actions which then had the said material effect need to be examined to determine whether his motivations were free of the alleged prohibited reasons. For reasons which I will now explain however, Superintendent McDonald did not have a material effect on either the actions of Chief Inspector Newton or Superintendent Driver. 2. It is the case that Superintendent McDonald was the person who instigated the investigation into Mr Saraceno, in the sense that he alerted the PSC to the possibility that Mr Saraceno may have engaged in misconduct. As explained in paragraphs [114] and [116], the matter was referred to the PSC and Chief Inspector Newton after Superintendent McDonald had first arranged for PSC to conduct two email audits – the first to uncover who had sent the Realignment Document to the PSA, and the second, after Mr Saraceno was identified as the sender, specifically of Mr Saraceno's emails. While no document containing Superintendent McDonald's 'complaint' was tendered in evidence, I infer that it contained a list of allegedly offending emails similar to that which comprised Annexure A to the 23 February Letter. 3. If Chief Inspector Newton had simply taken the list of emails and attachments prepared by Superintendent McDonald and accepted at face value that they evidenced misconduct on the part of Mr Saraceno I would have no hesitation in finding that Superintendent McDonald had had a material effect on Chief Inspector Newton's decision to commence a disciplinary investigation and to advise Mr Saraceno of the allegations of misconduct and that, in those circumstances, the Respondent could not discharge its onus without calling Superintendent McDonald to positively establish that he was not motivated by the prohibited purposes alleged by the PSA. The Full Court in Wong expressed a similar view at [81], although in that case the person who contributed to the decision (and who had, in fact, given evidence), Mr Arnott, had had a material effect on the ultimate decision to take adverse action. Not only had Mr Arnott been the instigator of the process which led to Ms Wong's removal from her position and had provided a large part of the information which the decision maker adopted without verifying its accuracy, but he had also personally authored the reasons for the removal decision and had accompanied the decision maker in seeking advice and expressed his opinion that Ms Wong's employment was "untenable": Wong at [79]. 4. In this case however, the evidence clearly established that Chief Inspector Newton personally reviewed and assessed the listed emails and determined (rightly or wrongly), first, that the matter should be investigated and secondly, that allegations should be put to Mr Saraceno that he had engaged in misconduct. There is no evidence whatsoever that Chief Inspector Newton relied upon or otherwise adopted any assessment Superintendent McDonald had made as to Mr Saraceno's conduct, nor is there any evidence that Superintendent McDonald had any involvement in the investigation conducted after he had referred to the matter to the PSC. 5. The fact that Superintendent McDonald made a complaint about Mr Saraceno's conduct to PSC does not by itself, mean that Superintendent McDonald had a material effect on the decision to take detrimental action. I accept that but for Superintendent McDonald making the complaint, the subsequent events would not have occurred, however the complaint did not 'cause' the detrimental actions. This follows not only from the facts as found, but from the processes prescribed in Part 6 of the GSE (NSWPF) Rules. 6. Rule 44(3) of the GSE (NSWPF) Rules allows for the Commissioner (or her delegate), after making an initial assessment, to decide not to proceed 'with the matter' where she is satisfied that the allegation is vexatious or trivial; or the incident or conduct concerned does not amount to misconduct, or there is likely to be difficulty in establishing the fact of the matter. In this matter Chief Inspector Newton conducted such an initial assessment and then determined to proceed with the matter and to conduct a disciplinary investigation involving further inquiries pursuant to r 45 which in this case, included conducting at least one further email audit. Had Chief Inspector Newton determined not to proceed with the matter, Mr Saraceno would not have suffered any detrimental action. The true cause of the detrimental action was Chief Inspector Newton's own assessment that the emails likely constituted misconduct – it was not caused by Superintendent McDonald's complaint. In the circumstances, there is no need for any inquiry to be made into Superintendent McDonald's motivations for making the complaint. 7. For completeness, I have not ignored Chief Inspector Newton's reference, in paragraph 22 of his affidavit to "the suspicion formed by SMU" as being a reason why he initiated a misconduct matter and issued the Allegations letters (see paragraph [156] above). In the same paragraph however, he goes on to say that he later formed the same suspicion. I do not consider that what is said in paragraph 22 of Chief Inspector Newton's affidavit detracts from the analysis of the evidence I have set out above and my finding that Superintendent McDonald did not have a material effect on the decision of Chief Inspector Newton to take the detrimental action against Mr Saraceno that he did. Other asserted reasons Chief Inspector Newton's Evidence should not be accepted 1. The PSA made a myriad of further submissions as to why the evidence of Chief Inspector Newton should not be accepted or, otherwise did not discharge the Respondent's onus with respect to the detrimental actions he took. I address below two of those submissions. To the extent I have not addressed any other submission made, it suffices to say that none of those submissions persuaded me to alter my view as to the reasons why Chief Inspector Newton took the actions he did. 2. First, as I understand it, the PSA contended that Chief Inspector Newton wrongly made allegations of misconduct against Mr Saraceno in circumstances where he was aware that all of the correspondence related to Mr Saraceno "discharging the official business associated with his official position as a union delegate [in relation to which] he had [implied] authority to do so." [74] 3. The problem with this submission is that merely establishing that Chief Inspector Newton was wrong to make allegations of misconduct against Mr Saraceno (because he had implied authority, if that were the fact) does not, of itself, undermine the belief Chief Inspector Newton had. To succeed in this submission the PSA would need to establish not only that Mr Saraceno in fact had implied authority to convey the information he did to the PSA by reason of his position as a delegate, but that Chief Inspector Newton knew that he had such an implied authority, but proceeded to accuse Mr Saraceno of misconduct, nonetheless. Chief Inspector Newton rejected any suggestion that Mr Saraceno had any kind of authority by reason of his position, to send NSWPF documents to the PSA. The following exchange with counsel for the PSA illustrates his position: Q. And to the extent that Mr Saraceno, as at 21 November 2022, is communicating with the union about his involvement in the award proceedings, do you accept that it was available to him to provide to the union evidence of the work that he'd performed in respect of the x-ray screening machine, if that's what this document is? A. No, I don't. Q. And is that because - why is that? A. This is a document intended for internal use. Q. Yes? A. And on that basis it ought not be disseminated externally. [75] 1. In the premises it is unnecessary for me to determine whether as a matter of fact and law, Mr Saraceno had implied authority to provide to the PSA the information and material he did, as even if I were to determine that he did, that fact, in circumstances where it was not established that Chief Inspector Newton (or Superintendent Driver) knew that Mr Saraceno had authority, express or implied, would have no bearing whatsoever on the actual reasons why Chief Inspector Newton (and later Superintendent Driver), took the action he did. 2. As I recorded at [55] above, the PSA did not clearly articulate the factual and legal basis for its submission that Mr Saraceno had implied authority to provide to the PSA the information referred to in the Annexures to the Allegation Letters. As I understand the submission it is said that the implied authority arises, from the protections afforded in s 210 of the IR Act, which override the terms of reg 76 of the Police Regulation [76] . The PSA made the following submissions in the AOS: 12. The provisions of the Industrial Relations Act 1996, including s 210, obviously pre-date and take precedence over a clause in a Regulation that is delegated legislation. Section 210 is intended to embrace a witness to a proceeding for an Award claim, or a union member/delegate providing information to a union for the purposes of prosecuting such a claim, such that they are entitled to share information that comes to their knowledge in the performance of their duties with a union such as the applicant in order to advance the claim. … 15. If Clause 76, properly construed, does not prevent an employee from providing information to a union for the purposes of an Award application, this raises a legitimate question as to the respondent's true motive for taking the detrimental action against SC Saraceno. … 18. The clause on its face would operate to prevent an employee from sharing their own pay slip with a third party. As such the clause needs to be construed in order to understand to what it is intended to apply to (sic), and in order to ensure a construction of a clause that is consistent with the regulation-making authority of its enabling statute, and any other statutes (such as the Industrial Relations Act) that interact with the same subject area. 19. A construction of the clause that prevented a police officer from disclosing to a third party any and all information connected with their employment, no matter how trivial or inconsequential (and with the risk of formal disciplinary proceedings as a consequence) is unreasonable, and not in keeping with the overall purpose or objectives of the enabling Act. … 25. However as a starting point, a construction of clause 76 that requires a member of the police force to keep confidential any and all material obtained in the course of employment (cf. in the provision of "police services"), including in circumstances where the relevant member is in direct conflict with the NSW Police Force on the issue in question (being here relevantly the terms and conditions of employment) is wholly unreasonable, and one that is not supportable by reference to the regulation making powers under the Act. 26. It is also inconsistent with the general structure of employee bargaining through unions that is enshrined in the Industrial Relations Act. 27. The applicant's position is therefore that Clause 76 does not apply to information that is part of the performance of the employee's duties, and that an employee has the right to communicate such information (whether by documents or orally) to the applicant as a union member and/or as a witness in proceedings under the Industrial Relations Act. 28. That position is reflected in the reality of disputes before the Commission, and the lack of any recorded decisions concerning the construction of clause 76 as it relates to members of the police force using "information" (as that term is defined in clause 76) in proceedings as against the Commissioner of Police, which would necessarily arise in every proceedings as between an individual member of the NSW Police Force and the Commissioner. 29. The fact that the respondent interpreted Clause 76 to apply to SC Saraceno's communication of information to the applicant when such an interpretation is inherently unreasonable and unavailable wholly undermines the respondent's attempt to discharge the onus on it to demonstrate that it was not victimising SC Saraceno. " 1. The PSA referred to no authority to support its submission that s 210 of the IR Act entitles union members or employees generally, to share information that comes to their knowledge in the performance of their duties with a union, in order to obtain advice in respect of a claim or otherwise advance proceedings relating to an industrial matter or that reg 76 of the Police Regulation does not apply in those circumstances. That fact, alone or in combination with the fact that some of the material forwarded by Mr Saraceno, notably the Active Armed Offender Response Guidelines and a document ostensibly containing legal advice (which I discuss below), was not material in the nature of a 'pay slip', leads me to reject the PSA's submission that the Respondent's interpretation and application of reg 76 to Mr Saraceno's communication of information "is inherently unreasonable and unavailable". 2. It is important that I stress that it may be that the PSA is correct in its view as to the construction and application of reg 76 of the Police Regulation in circumstances where a union delegate or member provides information to a union for the purposes of a proceeding relating to an industrial matter, (and it may succeed in establishing this in a subsequent unfair dismissal case on behalf of Mr Saraceno), however in circumstances where the PSA has not established that its view is uncontroversial and the normal practice applied by NSWPF, I have no reason to doubt the evidence of Chief Inspector Newton or Superintendent Driver that they consider (rightly or wrongly) that Mr Saraceno contravened reg 76 and therefore contravened the NSWPF Code of Conduct and Ethics and had engaged in misconduct. 3. For completeness, to the extent it was submitted that Section 6 of the Award also entitled Mr Saraceno to forward the information to the PSA with impunity, despite the terms of reg 76, I hold the same view expressed in the preceding two paragraphs. 4. The second substantive submission made as to why the evidence of Chief Inspector Newton should not be accepted or, otherwise did not discharge the Respondent's onus with respect to the detrimental actions he took is because there is no evidence why Superintendent McDonald did not directly ask Mr Saraceno whether he had forwarded the Realignment Document to the PSA, rather than initiate an email audit or why, having identified by at least 27 October 2022 that Mr Saraceno was sending allegedly confidential information to the PSA, he did not give any direction to Mr Saraceno to cease the practice. [77] Counsel for the PSA submitted that there was an 'air of entrapment' about the Respondent pursuing the further emails identified in the 10 March Letter [78] and that rather than directing Mr Saraceno to stop sending NSWPF documents and information to the PSA, it allowed him to continue to do so in order to 'load up' the allegations against him. 5. In considering this submission is worth remembering the remarks of Jessup J in Anglo Coal at [27], which were cited with approval by Lee J in Qantas at [223], namely: "… at the end of the trial of fact, the question will be whether the respondent has established, on the civil standard, that the action taken was not taken for a reason, or for reasons which included a reason, proscribed by the legislation. That question is to be answered by reference to all of the evidence which bears upon it. Section 361 does not impose upon the respondent concerned the onus of calling any and every piece of evidence that might arguably influence the answer to the question of reasons or intent. The section is not, in other words, concerned to impose upon the respondent a continuing, unchanging, evidentiary onus with respect to that question." 1. The first point to address is the fact there was no direct evidence that Mr Saraceno had not been asked to stop sending information to the PSA. Mr Saraceno might have given this evidence, but he did not. To arrive at this view, I am required to infer, from the other available evidence, that he was not told to stop. Chief Inspector Newton was not asked any questions in cross examination as to whether Mr Saraceno had been asked to stop forwarding information to the PSA. Superintendent Driver was asked and he explained it would have been a matter for Mr Saraceno's command, which I infer means, Superintendent McDonald. His evidence was as follows: Q. Did it cross your mind at all to wonder why it was that no-one had directed Mr Saraceno to cease those communications once New South Wales Police were aware of the fact of them? A. I didn't turn my mind to it. Q. Now that I've raised it with you, is it a matter that gives you cause for concern? A. It would have been a matter for the officer's command. 1. Even if I were to infer, from the fact that Mr Saraceno had sent further emails after it was discovered by the SMU that he had sent the Realignment Document to the PSA, and that neither of the Respondent's witnesses gave evidence that he had been directed to stop, which presumably would have aggravated any misconduct on Mr Saraceno's part, that he had not been told to stop, resulting in him sending further emails, that fact does not impugn the reasons given by Chief Inspector Newton or Superintendent Driver for their actions. 2. The 23 February Letter detailed in Annexure A communications all of which had occurred on or prior to 14 October 2023, the day the Summons was issued and therefore before the SMU had uncovered that Mr Saraceno had sent the Realignment Document to the PSA. Plainly enough Mr Saraceno could not have been told to stop sending emails before the Respondent knew that he was. Thus, any failure on the part of the SMU/Superintendent McDonald to direct Mr Saraceno to cease sending emails with NSWPF information had no bearing on the allegations made in the 23 February Letter. Expressed another way, Superintendent McDonald's action in not directing Mr Saraceno to stop did not have a material effect on the actions of Chief Inspector Newton in determining to conduct a misconduct investigation and to make allegations of misconduct as set out in the 23 February Letter. 3. It is the case that the 10 March Letter referred to some emails which must have been sent after it had been discovered that Mr Saraceno had sent the Realignment Document to the PSA. That fact alone is not sufficient for me to consider that Superintendent McDonald, through not directing Mr Saraceno to cease sending emails, had a material effect on the detrimental actions taken by Chief Inspector Newton, or subsequently, by Chief Inspector Driver, in circumstances where the matters alleged in the 23 February Letter provided the foundation for their actions. The 10 March letter made no new allegation against Mr Saraceno, nor did it indicate that the fact that additional emails had been uncovered altered the substantive allegations or the proposed action to be taken if a finding of misconduct was made. It simply noted that: "Those additional instances are now included in the allegation of misconduct." In short, I am not satisfied that any 'loading up' of the allegations that had occurred had any bearing on Chief Inspector Newton's actions, or subsequently, Superintendent Driver's actions. 4. As for the submission that I would not consider the Respondent to have discharged her onus because there is no evidence why Superintendent McDonald did not directly ask Mr Saraceno whether he had forwarded the Realignment Document to the PSA, rather than initiate an email audit, I repeat what I have said above at [174] to [180] regarding the cause of the detrimental conduct and Superintendent McDonald's involvement. Further, to the extent it was submitted that I should infer an impermissible motive on the part of the Respondent because the second and subsequent email audits targeted emails sent by Mr Saraceno to the PSA, that is not an inference I am prepared to make in circumstances where: 1. another reasonable explanation for audits to be conducted of Mr Saraceno's emails to the PSA, is because it had been discovered that he had sent the Realignment Document to the PSA and so, logically, he may have sent other documents to the PSA which NSWPF considered (rightly or wrongly) Mr Saraceno did not have authority to disclose; 2. the failure to call Superintendent McDonald to explain his motives for conducting the impugned email audit, does not entitle an inference to be drawn that his evidence would have been positively adverse to the Respondent: Amaca at [47]; 3. it was not put to Chief Inspector Newton in cross examination that the email audit he undertook was undertaken only in respect of emails between Mr Saraceno and the PSA because Mr Saraceno was a member and/or delegate of the PSA and/or was participating or proposing to participate in the Award Proceedings. Referral to Superintendent Driver 1. On 11 May 2023 the PSA wrote to Chief Inspector Newton complaining that NSWPF had accessed legally privileged communications; alleging that NSWPF had engaged in victimisation and that other members were concerned about reprisals should they provide evidence in the Award Proceeding; and that in commencing disciplinary process whilst the Award Proceeding is ongoing and by moving Mr Saraceno to the Armory, NSWPF had hindered his ability to instruct and provide evidence in the Proceedings, including but not limited to delaying the preparation of reply evidence; and seeking an undertaking from NSWPF not to take further steps in relation to the disciplinary proceeding. This letter was admitted into evidence only for its non-hearsay purpose. [79] On 12 May 2023 Acting Inspector Rebecca Jackson responded to the PSA's letter, denying any victimisation and confirming that "the misconduct process will continue to run its ordinary course in accordance with the Government Sector Employment (NSW Police Force) Rules 2017." 2. As I have already recorded, sometime between 10 and 15 May 2023 the matter was referred to Superintendent Driver. There is no evidence as to who made the decision to refer the matter to Superintendent Driver, however, as I will explain, in circumstances where I am satisfied that Superintendent Driver conducted his own independent assessment and review of the emails Mr Saraceno forwarded to the PSA, I do not consider it relevant who referred the matter to Superintendent Driver. 3. In his affidavit sworn on 7 June 2023 Superintendent Driver stated he was provided with and took into consideration: 1. a copy of the 23 February Letter and the 10 March Letter and the annexures to those letters (Allegations Letters); 2. Haywards Solicitor's letter of 8 May 2023 (which he referred to as 'Mr Saraceno's response'); and 3. copies of the documents referred to in the annexures to the Letters (i.e the emails and attachments). 1. In cross examination Superintendent Driver explained that he also would have been given and likely would have read, a briefing note or a 'Godfrey Report' with the above documents. [80] However, counsel for the PSA did not explore at all with Superintendent Driver the extent to which he relied or adopted the information contained in the Godfrey Report and, save for in three respects which I discuss at [203], [204] and [209] – [210] below, there is otherwise no evidence that he adopted what was said in the Godfrey Report when he determined that Mr Saraceno had engaged in misconduct and should be terminated. 2. Superintendent Driver gave the following evidence in chief: "Having reviewed the Allegation Letters, Mr Saraceno's response, and the documents referred to in the annexures to the Allegations Letters, I formed a view that Mr Saraceno had engaged in misconduct." 1. Superintendent Driver confirmed during cross examination that he had reviewed all the emails and all of the attachments referred to in the annexures to the Allegations Letters. [81] While counsel for the PSA was successful in casting some doubt on the correctness of Superintendent Driver's view of the confidentiality of some of the documents the subject of the allegations (as I shall detail shortly), her efforts were not sufficient for me to conclude that Superintendent Driver had not formed his own view (be that view right or wrong), that Mr Saraceno had engaged in misconduct or that he did not conscientiously hold that view at the relevant time. 2. On 15 My 2023 Superintendent Driver sent a letter to Mr Saraceno setting out his findings and proposed action (Misconduct Letter). The letter relevantly read as follows: Finding of Misconduct and Proposed Management Action Dear Mr Saraceno, I refer to previous correspondence dated 24 February 2023 and subsequent additional allegation letter dated 10 March 2023, where you were: advised of this misconduct matter; provided the details of the allegation of the matter; and given an opportunity to make a statement in relation to the allegation. I have carefully considered your response, provided via your legal representative, dated 8 May 2023, and I detail my finding for the allegations as follows: Allegation 1: Unauthorised/unlawful access-for personal gain/use Allegation 2: Unauthorised/improper disclosure of information - Other NSWPF information Allegation 3: Unauthorised /improper disclosure of information – Other NSWPF information. There is sufficient information to support a finding of misconduct by you regarding the three allegations, I conclude that your conduct was contrary to the NSW Police Force Code of Conduct and Ethics, and I make a finding of misconduct by you. My proposed action, given my finding of misconduct by you, is to: ● terminate your employment (after giving you the opportunity to resign) per s.69(4)(a)-(b) of the Government Sector Employment Act 2013. You may, but are not obliged to, make submissions in response to my proposed action. …" 1. Superintendent Driver accepted in cross examination that there was no allegation 3 [82] . He also explained that the detail included in his finding regarding Allegation 1, that is, "Unauthorised/unlawful access – for personal gain/use", was a categorisation applied to fit the "misconduct management information system" [83] and would have been done by Chief Inspector Newton's "team" which he "endorsed" or "accepted." [84] 2. Both of these matters suggests that Superintendent Driver may have placed some reliance on the views of other persons when arriving at his decision, however in light of Superintendent Driver's evidence that he conducted his own review and assessment of the emails and their attachments, and the lack of any other evidence to indicate that the work done by persons in Chief Inspector Newton's "team" had a material effect on the decisions of Superintendent Driver, I do not consider that any other person had a material effect on his decisions such that those persons would need to be called to positively establish that they were not motivated by the alleged prohibited purpose. Substantial and operative cause of Superintendent Driver taking detrimental action 1. Superintendent Driver gave the following evidence in chief: 31. I do not precisely recall when, I found out that Mr Saraceno was a union delegate. I read, in the Application for Relief from Victimisation, that Mr Saraceno was a union delegate. I'm not sure if that was the first time I learned of that information, or if I was told that at some earlier time. 32. I do not have a recollection about when I learned of Mr Saraceno's role as a union delegate because that information was unimportant to me. His role as a union delegate did not form any part of my decision to reach the findings I did regarding Mr Saraceno's misconduct, or to issue the Misconduct Letter. The material made available to me, as I described above, was the sole basis upon which I made the decision to make adverse misconduct findings against Mr Saraceno, and it is only those misconduct findings that have informed my proposed disciplinary action. 33. Similarly, I do not recall when, I found out that Mr Saraceno was participating in industrial proceedings. Mr Saraceno's participation in any industrial proceedings also did not form any part of my decision to reach the findings I did regarding Mr Saraceno's misconduct, or to issue the Misconduct Letter. I otherwise repeat my evidence in the preceding paragraph. 1. Superintendent Driver also gave evidence in chief as to some of the reasoning behind his conclusions that Mr Saraceno had engaged in misconduct as alleged. That reasoning supports a finding that he genuinely held the belief at the time of sending the Misconduct Letter, that Mr Saraceno had engaged in misconduct. I stress that this does not mean that I agree with Superintendent Driver's reasons or that his reasons are in fact correct, however as discussed at length, the correctness of his view is not relevant. 2. I do not propose to set out the whole of Superintendent Driver's reasoning, however some aspects of it require comment. 3. In relation to Allegation 1, Superintendent Driver stated in his affidavit: "12. … I was satisfied, based on the material that was before me, that in or about September 2022, Mr Saraceno: (a) entered, without permission, the unoccupied Security Management Unit Commander's Office; (b) found the document on the Commander's desk (identified as D/2022/79046) that was a sensitive and confidential report about the corporate structure of the NSW Police Force; (c) took two photographs of the document, being one of each of the first two pages; and (d) on 14 October 2022, disseminated the photographs to a third party. 13 … 14. I understand that there was no operational or other reason for Mr Saraceno to have access to that document, and further, that he had not been provided with a copy of the document by his Commander. There was no evidence to indicate permission to disseminate that document to third party. 15. While I do not know whether the Commander's office was locked and Mr Saraceno had to use his key to enter, that did not change my view as to whether the behaviour was misconduct or not. Even if the door was unlocked, for the reasons I set out in paragraph 11 above, the level of access to premises provided to Special Constables requires a level of trust in them that they will not take advantage of the special keys given to them that allow them to access any premises." 16. In my mind, my conclusion as to Allegation 1 was alone enough for me to make finding of misconduct and consider the disciplinary action set out in the Misconduct Letter. 1. There was no evidence as to how Superintendent Driver came to the view that Mr Saraceno entered the Commander's Office "without permission" or that "there was no operational or other reason for Mr Saraceno to have access to that document" or "that he had not been provided with a copy of the document by his Commander." This was not a matter explored in cross examination. One might infer that this information was contained in the Godfrey Report provided to Superintendent Driver, authored by an unknown person. Alternatively, it may be that Superintendent Driver simply inferred these matters from the content of the emails Mr Saraceno sent to Ms McRobert. 2. If the information, which clearly Superintendent Driver believed, came only from the Godfrey Report, the failure of the Respondent to call the author of the Godfrey Report to explain their motivations could have given me pause to consider whether the Respondent had discharged her onus. However, I have no such concerns in circumstances where: 1. as I stated at [110] and [113] above, an inference is available from the content of Mr Saraceno's emails to the PSA dated 14 October 2023 and the Realignment Document itself, that Mr Saraceno was not authorised to photograph any part of the Realignment Document and was not expressly authorised to send it to the PSA; 2. the PSA did not lead any evidence to the effect that Mr Saraceno had express permission to enter the Commander's office, to photograph the Realignment Document and to send it to the PSA and no case to this effect was put to the Respondent's witnesses; and 3. Superintendent Driver stated in cross examination that: "It's straight out misconduct by photographing a sensitive document on the commander's desk and emailing it a third party, irrespective of who that third party is, without consent, without permission. That's the misconduct". 1. In relation to Allegation 2 Superintendent Driver gave the following evidence in his affidavit: 19. Consistently with the requirements of regulation 76 … members of the NSWPF must treat all information which comes within their knowledge in their official capacity as "strictly confidential, and on no account without proper authority divulge it to anyone". The process observed by the NSWPF in disclosing or divulging information outside of the NSWPF is to seek permission or "authority" from the owner of the particular information prior to the information being disclosed. 20. I understand that, in respect of the documents that are the subject of the annexures to the Allegations Letters, Mr Saraceno did not seek authority prior to making any of the disclosures of the information set out in the Allegations Letters to any third party. 1. Again, there is no evidence as to how Superintendent Driver came to the view that Mr Saraceno did not seek authority prior to making any of the disclosures of the information set out in the Allegations Letter, however I do not consider this lacuna to be of any consequence in circumstances where the PSA did not contend otherwise, save to submit that Mr Saraceno was implicitly authorised by reason of his role as a delegate and as a witness in the Award Proceeding. 2. Superintendent Driver went on in his affidavit to discuss two particular emails and their attachments, which he considered were "clear, on their face, that they should not have been disclosed to a third party". His evidence at paragraph 21 of his affidavit was as follows (with email address redacted): (a) On 18 August 2022, Mr Saraceno sent an email to "XXX @pna.asn.au" which contained an attachment, being the Active Armed Offender Response Guidelines. This email is listed as Document 15 in Annexure A to the Allegation Letter of 23 February 2023 … A copy of the first page of the email chain sent by Mr Saraceno and the first two pages only of the Guidelines is annexed to this affidavit … The Guidelines document is strictly confidential. The first page of the Guidelines is marked "Sensitive: Law Enforcement". The second page contains a 'caveat', stating the document is strictly confidential and not to be disclosed without consent of the Commissioner of Police or Office of the General Counsel. The 'caveat' is repeated in the email in which the Guidelines was sent to Mr Saraceno, in his capacity as a member of the NSWPF, says (sic) "Please note that the document has a caveat placed on it which means that the document is strictly confidential and is not to be given to anyone outside NSW Police Force without the consent of the Commissioner of Police or General Counsel. Advice should be sought from the Office of the General Counsel prior to producing this document in response to a subpoena or statutory notice to produce." I do not have authority from the Commissioner of Police to disclose a complete copy of the Guidelines in my evidence in these proceedings, and only have authority to provide the first two pages for the purpose of showing those caveats. Knowledge of Active Armed Offender response methodology compromises the safety of law enforcement personnel who are called to respond to such threats. (b) On 11 April 2020, Mr Saraceno sent an email to Mr Roland Harris, which included several attachments, one of which was a document containing legal advice prepared by the Office of the General Counsel of the NSWPF and is listed as Document 2 in Annexure A to the Allegation Letter of 23 February 2023 … A copy of the email sent by Mr Saraceno and the front page only of that attachment is a next to this affidavit… The first page of the attachment is marked with the following notations: a. "Sensitive: Legal"; b. "Strictly Private and Confidential"; and c. "You are not allowed to give a copy of this document to anyone outside the NSWPF without the consent of the Commissioner of General Counsel (sic)". I do not have authority from the Commissioner of Police to disclose a complete copy of that legal advice other than to provide the first page for the purpose of showing those notations." 1. Counsel for the PSA cross examined Superintendent Driver in respect of the above evidence. Her objective appeared to be to establish that the Active Armed Offender Response Guidelines (Guidelines) and the document described as legal advice were not in fact 'confidential' to support her submission that "If it's not confidential … then the fact that it's been included as part of the misconduct is part of undermining the respondent's onus case". As I have discussed at length, that approach misapprehends the Respondent's onus. As I have discussed, and as I put to counsel for the PSA in response to her submission, the PSA would have to establish not only that the document was not confidential, but that Superintendent Driver was aware that it was not confidential, so as to undermine his evidence that he took the action he did because he believed that Mr Saraceno had engaged in misconduct. 2. For completeness I record that the PSA initially sought to tender a complete copy of the Guidelines together with a document apparently referred to in the Guidelines which the PSA asserted (without evidence) was in the public domain; and the document described as legal advice. However, in each case after objection to the tender was made by the Respondent (for various reasons) and before I made any ruling, the PSA withdrew its tender. [85] In my view, and for the following reasons, the documents would, in any event, have added nothing to my assessment as to the genuineness of the belief held by Superintendent Driver at the time he issued the Misconduct Letter. 3. Even if the PSA had succeeded in showing, including by the admission into evidence of the document, that the document described as containing legal advice was not in fact confidential or privileged, the markings on the front page clearly entitled Superintendent Driver to take a view, which he did, that the document was confidential and could not be disclosed to anyone outside of the NSWPF without consent from the identified persons. In other words, Superintendent Driver had a sound foundation for taking the view which he did, and the tender of the document alone – even if it revealed Superintendent Driver's view was legally and factually wrong – would not lead me to doubt the genuineness of Superintendent Driver's belief at the time he wrote the Misconduct Letter. 4. I take the same view in respect of the Guidelines. It is self-evident from the nature of the document, let alone the warnings about disclosure on the cover page, that the content of the Guidelines is extremely sensitive. As Counsel for the Respondent submitted: "The New South Wales Police Force and the Respondent has every reason to be entirely protective of that information because of course if it is revealed to the world at large the opportunity for counter policing tactics to be adopted in the case of an active armed offender event are live." [86] 1. As I understand it, the PSA was seeking to challenge the opinion of Superintendent Driver that "[k]nowledge of Active Armed Offence response methodology comprises the safety of law enforcement personnel who are called to respondent to such threats" [87] by showing that the Guidelines referred to another document which is, allegedly, in the public domain. Again, the PSA ultimately withdrew its tender of the document, but the admission of the document into evidence was not necessary in order for the PSA to at least put to Superintendent Driver that he did not genuinely believe that the disclosure of the Guidelines would compromise the safety of law enforcement personnel because the Guidelines, or at least part of them, (so the PSA asserted) were in the public domain. However, those questions were never put to Superintendent Driver. 2. From my own reading of those parts of the Guidelines and the putative legal advice which were annexed to Superintendent Driver's affidavit, and without intending in any way to pre-empt any subsequent inquiry or hearing as to whether Mr Saraceno in fact engaged in misconduct, Superintendent Driver had a reasonable basis to conclude that he had. As he went on to explain in his affidavit at paragraphs 22 – 24: "22. Members of the NSWPF are required to comply with the NSWPF Code of Conduct and Ethics (COCE). … 23. The COCE relevantly provides: "An employee of the NSW Police Force must: 1. behave honestly and in a way that upholds the values and the good reputation of the NSW Police Force whether on or off duty; … 3. know and comply with all policies, procedures and guidelines that relate to their duties … 8. only access, use and/or disclose confidential information if required by their duties and allowed by NSW Police Force policy; 9. not make improper use of their position or NSW Police Force information or resources …" 24. The COCE was also a document that I considered in determining whether or not Mr Saraceno's conduct the subject of Allegations 1, 2 and 3 (sic) amount to misconduct. I determined that Mr Saraceno's conduct as set out in the Allegations Letters constitute a breach of the COCE, and Points 1, 3, 8 and 9 in particular." 1. As was the case with Chief Inspector Newton, much of the cross examination of Superintendent Driver appeared to be directed to casting doubt upon the correctness of his view that Mr Saraceno had engaged in misconduct. This was done principally by trying to establish that certain of the emails or attachments were not in fact confidential in the ordinary sense of that word and/or concerned matters related to the performance of work by special constables, to make good the ultimate submission that Mr Saraceno, by virtue of his position as a union delegate and witness in the Award Proceeding, had implied authority to disclose the information to the PSA. 2. In relation to the latter objective, the fact that the communications to the PSA concerned the work of special constables and were sent in the performance of Mr Saraceno's duties as a union delegate, was not a matter of contest. However, as I have already noted, neither Chief Inspector Newton or Superintendent Driver conceded that this meant that Mr Saraceno was impliedly authorised to disclose the information to the PSA and so had not engaged in misconduct. 3. In relation to the attempt by the PSA to demonstrate that the emails and/or attachments were not confidential I repeat what I said above at [164] above. Whether the documents are or are not confidential, and whether the disclosure of them to the PSA breached reg 76 is irrelevant. The relevant question is whether Superintendent Driver took the action he did because he believed the documents were confidential and/or protected from disclosure by reg 76. 4. As was the case with Chief Inspector Newton, Superintendent Driver gave some answers in cross examination which suggest his belief may have been wrong, at least in respect of some of the documents, however, he also gave evidence which bolstered his evidence that the reason he found that Mr Saraceno had engaged in misconduct and has proposed to terminate his employment was solely because he considered that Mr Saraceno had provided sensitive and confidential information to the PSA without authority. In particular, Superintendent Driver gave the following evidence in cross examination: 1. he looked at each of the emails and their attachments [88] and determined that all of them breach reg 76 of the Police Regulation "in varying degrees" [89] although "some of the material was more sensitive than the others" [90] ; 2. he later said that not all of the attachments breached reg 76 and accepted that the news article attached to email number 21 in Annexure A to the 23 February Letter did not breach reg 76 [91] and the provision of documents attached to email number 2 in Annexure A to the 10 March Letter to the PSA by Mr Saraceno did not constitute misconduct, after he was shown documents that indicated that NSWPF had separately provided those documents to the PSA [92] (it was not demonstrated that Superintendent Driver was aware of that fact as at the date he wrote the Misconduct Letter); 3. he knew that Mr Saraceno was contemplating being a witness in the Award Proceeding; that he was engaged in providing information to the union for the purpose of the Award Proceeding; that Mr Saraceno was using his police email to do that; and the Award provides for union delegates to use the police email for union communications [93] , however he did not accept that by virtue of that right, SC Saraceno had authority to provide the material he did to the union [94] ; and 4. the number of special constables employed (this being shown on the Realignment Document) was not 'secret information' and if a 'realignment' of the workforce was proposed this would, as a matter of course, be communicated to the union "after approval is given for that consultation to occur" [95] . 1. None of the above matters cause me to doubt the evidence of Superintendent Driver that he honestly and conscientiously believed at the time of writing the Misconduct Letter, that Mr Saraceno had engaged in misconduct. Like Chief Inspector Newton, Superintendent Driver gave his evidence carefully and dispassionately. On occasions he paused for long periods before giving a response, however my assessment of this was that he was being careful to be accurate in his answer rather than to fashion an answer which he thought might best suit the Respondent's case. Overall, he gave me no reason to disbelieve his evidence as to the reasons why he took the actions which he did and like Chief Inspector Newton, the concessions which he made, against the Respondent's interest, only served to support my view that he gave his evidence honestly. 2. I certainly do not consider that Superintendent Driver's findings of misconduct were so lacking in foundation that I would consider that he did not genuinely hold that view and was activated by the alleged improper motive, noting, again, that I am not prepared to entertain that argument in circumstances where this was not put to him. 3. To the extent the PSA submitted that I should disbelieve Superintendent Driver's evidence as to motivations or that the Respondent had otherwise not discharged her onus in respect of Superintendent Driver's action, for reasons discussed in respect of Chief Inspector's Newton's actions at paragraphs [174] – [195], I repeat the findings and conclusions stated in those paragraphs. 4. In all the circumstances I accept Superintendent Driver's evidence that he made findings of misconduct and proposes to terminate Mr Saraceno because he considers (rightly or wrongly) that Mr Saraceno had engaged in misconduct and that he has not done these things because Mr Saraceno was a union delegate or a participant in industrial proceedings. Resolution of the Issues for Determination 1. Having made the above factual findings, the resolution of the Proceedings is relatively straightforward. Dispute Proceeding Does the Commission have the power to grant the relief sought? 1. The PSA seeks two recommendations and a determination. I am satisfied that the Commission has the power to make the recommendations sought, however, for the reasons discussed at [24] – [26], above the Commission does not have the power to make a determination, in the form sought, "that reg 76 of the Police Regulation 2015 does not apply to PSA delegates who are exercising their rights as delegates to use NSW Police Force email to communicate with the PSA and/or its solicitors regarding union matters or legal proceedings". It may be a determination that the Commission might make in the course of deciding whether to make the recommendations sought, if this is necessary in order to decide whether to make the recommendations, but the determination in the form it is sought is tantamount to a declaration and therefore not one that I would make. I note that the Commission might also determine whether reg 76 applies to delegates who are exercising their rights as delegates to use NSWPF email to communicate with the PSA and/or its solicitors regarding union matters or legal proceedings, when exercising its function to determine whether Mr Saraceno has been unfairly threatened with termination or has been unfairly terminated, but that is not the case which the PSA brought before me. 2. For the reasons set out below and as it was submitted by the Respondent, it is unnecessary for me to make any determination as to the application of reg 76 to union delegates, when deciding to make the two recommendations sought by the PSA. Are the factual bases upon which it is contended relief is warranted, established? 1. The PSA seeks a recommendation that the Respondent cease accessing emails from PSA delegates to PSA solicitors and administrative support staff where those emails are marked "Sensitive-Legal" or are otherwise subject to legal professional privilege. 2. Chief Inspector Newton gave the following uncontroverted evidence in his affidavit: "Beyond auditing all NSWPF emails to establish whether the Report [Realignment Document] had been emailed externally, and if so, by who, PSC have conducted no further audits of any NSW Police Force email accounts, other than that in relation to SC Saraceno, in relation to this matter. To the extent the Dispute filed by the PSA seems to suggest that the NSWPF are specifically auditing emails of other Special Constables or PSA delegates, that is not correct. No such auditing is occurring. PSC only conducts email audits where relevant to allegations of misconduct. As set out above, SC Saraceno came to be audited due to suspicions he had engaged in misconduct." [96] 1. Superintendent Driver gave the following uncontroverted evidence in his affidavit: "Further, PSC does not monitor people's NSWPF emails without reason. There are audits conducted in respect to email and the COPS data base that all personnel are subject to. The NSWPF access emails in instances of investigating suspected misconduct, as has occurred here with SC Saraceno. I am not aware of any investigations into any other Special Constable's (sic) at present and I am not aware of any Special Constable's email being accessed outside of any standard audits, disciplinary process or misconduct." [97] 1. The above unchallenged evidence is consistent with the Email Guidelines and is sufficient for me to determine that there is no factual basis to warrant the making of the recommendation sought. Moreover, as I explained at [136] – [141] I do not consider that communications sent using the NSWPF email system can constitute privileged communications. 2. The audits of Mr Saraceno's email and the existence of the Email Guidelines, which on their terms permit the NSWPF to access employee's emails, arguably provide part of the factual foundation for the Commission to make the second recommendation sought, namely that the parties consult to devise a document that covers procedures for PSA delegates using NSWPF email to communicate with the PSA regarding legal proceedings and workplace disputes. However, there was also evidence that the PSA already has a document - in the form of the Delegates' Handbook – which recommends that delegates not use their work email if they are concerned to keep their communications confidential from their employer. As counsel for the Respondent submitted, this is "sensible counsel" [98] and the adoption of such a course entirely obviates the need for the parties to devise any other kind of procedure for PSA delegates using NSWPF email to communicate with the PSA regarding legal proceedings and workplace disputes, pursuant to a recommendation of the Commission or otherwise. 3. The larger concern appears not to be with the use of the NSWPF email, to which the second recommendation sought is directed, but with the ability of delegates to provide confidential NSWPF information to the PSA to pursue an industrial matter. No recommendation was sought in respect of this issue. For the reasons discussed in the following sections I would not make a recommendation directed to this issue. Does the dispute have a collective element and if not, should the Commission decline to grant relief for this reason? 1. As discussed at [22] and [23] a collective element is not required to make a recommendation pursuant to s 136(1)(a). However, the lack of a collective element is a factor that the Commission may take into account when determining whether to make a recommendation. 2. In the present matter the PSA led no evidence to support its assertion that the PSA had been impeded in finalising Mr Saraceno's evidence and in obtaining evidence from other members, in respect of the Award Proceeding. Nor did it lead any evidence to show that NSWPF's accessing of emails pursuant to the Email Guidelines was causing any issues beyond those now encountered specifically by Mr Saraceno. Given the lack of any established collective element, I am not persuaded that there is any need for the Commission to intervene by making any recommendations regarding NSWPF's accessing of delegates' emails. 3. Nor is there any evidence to establish that there is a broader issue regarding the provision of confidential NSWPF information to the PSA. It may be recalled that the allegations made against Mr Saraceno is that he forwarded NSWPF information "without authority". Implicitly, no issue would have arisen if he had first obtained permission to disclose the information to the PSA. There is no evidence that he attempted to do that or that there was an issue with NSWPF denying permission when asked. 4. Counsel for the PSA submitted that: "The idea that employees need to get permission from New South Wales Police before they can provide information to the union is frankly inconceivable and cuts directly across the rights that are protected by s 210." I do not accept that submission. Section 210 protects an employee's right to participate in proceedings relating to an industrial matter, however it does not in terms give an employee the right to disclose their employer's confidential information to a third party, even where this is done as part of their participation in proceedings. I see nothing 'inconceivable' about the notion that an employee needs to get their employer's permission to disclose their employer's confidential information to the union. One result of seeking such permission may be the implementation of a confidentiality regime in respect of to whom, and how, the information is to be disclosed. If the employer were to unreasonably refuse to allow the information to be conveyed to the union, an approach might be made to the Commission to help resolve the issue. In the present case however, there is no evidence that any approach was made to the Respondent for permission to disclose the information or that the NSWPF was otherwise unreasonably impeding the flow of relevant information to the union. Should the Commission decline to grant relief because the PSA failed to follow the grievance and dispute settling procedures set out in Clause 9 of the Award? 1. As recorded at [18] above, pursuant to s 131 of the IR Act the Commission may refuse to deal with an industrial dispute until it is satisfied that any relevant dispute resolution procedures in an industrial instrument have been followed as far as is reasonably practicable in the circumstances. Clause 9.9 of the Award provides that a matter may be referred to the Commission if it remains unresolved after the grievance and dispute settling procedures set out in the clause have been undertaken. However, cl 9.1 of the Award makes it plain that the procedures are to be followed in relation to: "All grievances and disputes relating to the provisions of this award…". That is, if a grievance or dispute does not relate to the provisions of the Award, the procedures need not be followed before it may be referred to the Commission and s 131 will have no role to play. 2. To the extent the dispute concerned the use of NSWPF email facilities, which is covered in cl 59.1.1 of the Award, it was incumbent upon the PSA on behalf of Mr Saraceno, to first follow the dispute settling procedures before seeking relief from the Commission. However, the dispute also encompassed a concern about the right of Mr Saraceno as a delegate to provide confidential information to the PSA and I am not convinced that this part of the dispute required the PSA to follow the procedures in cl 9 of the Award before approaching the Commission for assistance. 3. However, I am not prepared to grant any relief in respect of that part of the dispute which was not governed by the dispute resolution procedures in the Award in circumstances where there is no evidence that Mr Saraceno requested permission to disclose the information referred to the Annexures to the Allegations Letter and no evidence that the NSWPF was unreasonably impeding communications between delegates and the PSA. As I have already observed, had Mr Saraceno sought permission to provide certain documents to the PSA, and permission was refused, the PSA might then have sought the intervention of the Commission. Similarly, if there was evidence that the PSA's conduct of the Award Proceedings (or other proceedings relating to an industrial matter) had been impaired by an inability of its members to properly instruct it due to reg 76 of the Police Regulation or by the failure of NSWPF to permit the provision of information to the PSA, the Commission might well intervene, but that was not the case brought by the PSA. 4. In the circumstances I am not persuaded that any relief is warranted in respect of the Dispute Proceeding. Victimisation Proceeding: 1. As is evident from my factual findings, the Respondent has rebutted the presumption in s 210(2) of the IR Act. Mr Saraceno's membership of, and position within, the PSA and/or his participation or intended participation in the Award proceedings played no substantial or operative part in the Respondent's delegates' decision to take detrimental action against Mr Saraceno. Accordingly, the PSA has not established that Mr Saraceno has been victimised within the meaning of s 210(1) and no relief is warranted. Conclusion and Orders 1. I order that both Proceedings be dismissed. 2. I note that the PSA on behalf of Mr Saraceno, or Mr Saraceno in his own right, has the ability to seek relief for unfair dismissal. Subject to an extension of time being granted, a claim could be brought pursuant to s 84 of the IR Act in respect of the threat to dismiss Mr Saraceno, or as of right following his actual dismissal, on the basis that the dismissal is harsh, unreasonable or unjust. As I have been at pains to stress throughout this Decision, it may be that the Respondent is wrong about the nature of Mr Saraceno's conduct. If that is the case, that may result (depending on all the facts and circumstances) in Mr Saraceno obtaining relief for unfair dismissal. However, that is an argument for another day. Janet McDonald Commissioner ********** Endnotes 1. 2022/213646 – Crown Employees (NSW Police Force Special Constables) (Security) Award 2022; Ex A3 (Application for New Award). 2. Tcpt, 5 July 2023, p 37(49) – 38(26). 3. Tcpt, 5 July 2023, p 5(47). 4. Upheld on appeal. 5. Tcpt, 5 July 2023, p 5(13) – (15). 6. Applicant's Outline of Submissions, [19]. 7. Special leave refused: B71/205. 8. Wong at [26]. 9. Tcpt, 5 July 2023, p 11(33) – (35). 10. Tcpt, 19 June 2023, p 11(3) – (14). 11. Respondent's Outline of Submission dated 7 June 2023 at [20]. 12. This evidence, as a contained in Chief Inspector Newton's affidavit, was ultimately admitted only for its non-hearsay purpose: Tcpt, 19 June 2023, p 31(6) – (9). 13. Tcpt, 5 July 2023, p 57(19) – (21), (30)- (31). 14. Tcpt, 5 July 2023, p 12(45) – (49). 15. Tcpt, 5 July 2023, p 12(50) – 13(3). 16. Respondent's Closing Submissions at [16]. 17. Respondent's Closing Submissions at [29] and Tcpt, 5 July 2023, p 38(28) – (43). 18. Tcpt, 5 July 2023, pp 37(49) – 38(26). 19. ROS at [21]. 20. See e.g., Respondent's Closing Submissions at [47] and [53]. 21. Ex R2. 22. Ex R3. 23. The reference to Hellicar is a reference to ASIC v Hellicar (2012) 247 CLR 345; [2012] HCA 17. 24. Exhibit A3. 25. Exhibit A2, Tab 1. 26. Exhibit R3, Annexure DD-2. 27. Exhibit A5. 28. ACS [10(a)]. 29. Tcpt, 5 July 2023, p 37(16)-(17). 30. Tcpt, 19 June 2023, p 31(4) – (9). 31. Tcpt, 19 June 2023, p 36(12), 39(17). 32. Tcpt, 19 June 2023, p 36(21). 33. Tcpt, 19 June 2023, p 36(17). 34. Tcpt, 19 June 2023, p 31(39)-(49). 35. ACS [42]. 36. Tcpt, 5 July 2023, p 44(27)-(28). 37. Ex A9 and Ex A10. 38. Tcpt, 5 July 2023, p 63(25). 39. Tcpt, 19 June 2023, p 41(44). 40. Exhibit R3 [6]. 41. ACS [16]. 42. ACS [16]. 43. ACS [37] – [38]. 44. ACS [7]. 45. ACS [8]. 46. ACS [3]. 47. RCS [12]. 48. ROS [28] – [29]. 49. ACS [16]. 50. ACS [51]. 51. RCS [64]. 52. Tcpt, 19 June 2023, pp 31(41)-(49), 43(13) – (21), 46(31). 53. Tcpt, 19 June 2023, p 43(25), (48). 54. Tcpt, 19 June 2023, p 44(18). 55. Tcpt, 19 June 2023, p 44(33). 56. Ex A 7. 57. Tcpt, 19 June 2023, pp 45(48) – 46(5). 58. Tcpt, 19 June 2023, p 46(46) – (47). 59. Tcpt, 19 June 20223, pp 46 (49) – 47(2). 60. Tcpt, 19 June 2023, p 46(16) – (26). 61. Tcpt, 19 June 2023, p 54(3) – (9). 62. Tcpt, 19 June 2023, p 51(1) – (7); 55(35). 63. Tcpt, 19 June 2023, p 51(7). 64. Tcpt, 19 June 2023, p 54(21). 65. Tcpt, 19 June 2023, p 56(15). 66. Ex A 8. 67. Tcpt, 19 June 2023, p 49. 68. Ex A 12. 69. Tcpt, 19 June 2023, p 67(40). 70. Tcpt, 19 June 2023, p 67(46) – (49). 71. Tcpt, 19 June 2023, p 68(19)-(20) 72. Tcpt, 19 June 2023, p 69(29). 73. Tcpt, 19 June 2023, p 75(19)-(23). 74. Tctp, 19 June 2023, pp 75(47) – 76(1) 75. ACS [37] – [38]. 76. Tcpt, 19 June 2023, pp 67(44) – (49), 68(1)-(5). 77. Tcpt, 5 July 2023, p 11(33) – (35). 78. ACS [6]. 79. ACS[7]. 80. Tcpt, 19 June 2023, p 16(4)-(42). 81. Tcpt, 20 June 2023, p 8(27), (40)-(44). 82. Tcpt, 20 June 2023, p 4(14). 83. Tcpt, 20 June 2023, p 4(39). 84. Tcpt, 20 June 2023, p 27(20)-(21). 85. Tcpt, 20 June 2023, p 27(38), (43). 86. Tcpt, 20 June 2023, pp 26(41), 43(22) – (25). 87. Tcpt, 5 July 2023, p 47(29) – (33). 88. Ex R 3 [21(a)]. 89. Tcpt, 20 June 2023, p 20(37). 90. Tcpt, 20 June 2023, p 4(18). 91. Tcpt, 20 June 2023, p 5(37). 92. Tcpt, 20 June 2023, p 6(31)-(40). 93. Tcpt, 20 June 2023, p 34(19). 94. Tcpt, 20 June 2023, p 14(25) – (44). 95. Tcpt, 20 June 2023, p 15(1) – (3). 96. Tcpt, 20 June 2023, p 18 (1) – (13). 97. Ex R2 [25]. 98. Ex R3 [34]. Amendments 14 February 2024 - Minor amendments made to paragraphs [119], [159], and [214] 22 February 2024 - Minor amendments made to the following paragraphs: [43] – insert the word 'the' before the word 'Commission' in the first sentence. [46(2)] – amend the word "specially" so that it reads "specifically". [192] – amend the word 'witness" so that it reads "witnesses". 13 June 2024 - The name of the Notifier/Applicant's representative on the cover page amended from "A McRoberts" to "A McRobert" [105] – Amended the word "Police" to "Policy" [130] – Amended the name "Robert" to "McRobert" [134] – Amended the name "Robert" to "McRobert" [149] – the words in parenthesis were moved so that they appear after the words "Annexure A" [158(2)] – the word "that" inserted after the word "satisfied" and the following word "the" was deleted [168(3)] – the word "in" appearing before the word "them" was 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: 13 June 2024