Industrial Relations Commission of New South Wales CITATION: George Dieter and Department of Juvenile Justice [2006] NSWIRComm 1189 APPLICANT George Dieter PARTIES: RESPONDENT Department of Juvenile Justice. FILE NUMBER(S): IRC 2491 of 2006 CORAM: Bishop C CATCHWORDS: Unfair Dismissal- psychologist of 11 years unblemished service- allegations of misconduct - security breaches- refusal to obey orders - inappropriate comments in case notes-attitude to staff and department-allowed to resign- reinstatement sought. Held- allegations did not warrant disciplinary action but counselling- refusal to obey instructions wrong - dismissal harsh unjust and unreasonable- reinstatment impracticable of applicant - compensation ordered LEGISLATION CITED: Industrial Relations Act 1996 Public Sector Employment and Management Act 2002 Bankstown City Council -v- Paris (1999)93 IR 209. Byrne & Frew -v- Australian Airlines Ltd (1995) 185 CLR 410 Castellano -v- Inspector General in Bankruptcy, FD NG 625/97,7 February, 1988. D & R Commercial Pty Ltd -v- Flood (2002) 113 IR 344 Ellis-v- Wallsend Hospital [1998] 17 NSWLR 553. Hollingsworth-v-Commissioner of Police (No2)(1999)47 NSWLR 151 Jackson (previously known as Subramaniam) -v- Legal Practitioners Admission Board [2006] NSW 1338. Jones -v- Dunkel (1959) 101 CLR 298 Lane-v-Arrowcrest Group (1990) 99 ALR 45. Little -v- Commissioner of Police (No 2)(2002) NSW IR Comm 52. NSW Sales Representatives & Commercial Travellers Guild-v-BergePaint (1984) 9 IR 273. CASES CITED: Outboard World -v- Muir (1993) 51 IR 116 Pastrycooks,Biscuit Makers and Flour & Sugar Goods. Workers Union(NSW) -v- Gartrell White (no3) 1990 35 IR 70. Perkins -v-Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. Re Loty and Holloway -v- AWU[1971] AR (NSW) 95. Rapp -v- Wauchope RSL Club Ltd 81 IR 116. Retail Traders Association (NSW) -v- Shop Distributive & Allied Employees Association (NSW) (1990) 36 IR 38. Sams -v-Contact Point International Pty Ltd (2001) NSW IR Comm 18. State of NSW -V- Seedsman (2000 217 ALR 583) Suthlerland Shire Copuncil -v- Dietz [2004] NSW CA 53 St Vincent's Hospital Sydney Ltd -v- Harris (1998) 81 IR 173 Western Suburbs District Ambulance Committee -v- Tipping (1957) AR NSW 273 Young & others -v- Department of Juvenile Justice [2006] NSWIRC 337. HEARING DATES: 13/11/ 2006;14/11/2006,24/11/2006,19/12/2006 DATE OF JUDGMENT: 03/02/2007 APPLICANT Mr Easton of Counsel SOLICITOR Conomos & Spinak. LEGAL REPRESENTATIVES: RESPONDENT M/s T Anderson of Counsel SOLICITOR Mr P Houston Public Employment Office DECISION: - 119 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BISHOP C 2 March 2007 Matter No IRC 2491 of 2006 George Dieter and Department of Juvenile Justice Application by George Dieter re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2007] NSWIRComm 1189 1 This an application by George Dieter against the Department of Juvenile Justice ("DJJ") for a remedy pursuant to section 84 of the Industrial Relations Act 1996. Mr Dieter was constructively dismissed from his position of Psychologist at the Frank Baxter Juvenile Justice Centre on the 31st of May 2006. He sought reinstatement to his former position or monetary compensation in lieu thereof. 2 The matter was initially listed for conciliation and directions before me on 5 July and then subsequently on 17 July 2006, however both dates were vacated at the request of the applicant with the matter ultimately listed on the 24 August 2006. Conciliation was conducted by Commissioner Cambridge but was unsuccessful. Directions as to the filing and exchange of witness statements were issued pursuant to Practice Direction 17 and the file returned to the Registry for allocation for hearing. 3 The matter was set down for hearing on 13 and 14 November 2006 before the Commission as currently constituted. However additional days were required for hearing on 24 November and 19 December 2006. 4 At the hearing Mr M Easton, of Counsel, appeared on behalf of Mr Dieter who also gave evidence in the matter (Exhibits 1 and 2). 5 Ms T Anderson, of Counsel, appeared on behalf of DJJ and called the following witnesses: Sussana Walker - Assistant Manager, Client Services DJJ, (Exhibit 3), Darren Byrnes - Coordinator Operations, Frank Baxter Juvenile Justice Centre (Exhibit 5), Garry Hall - Youth Officer , Frank Baxter Juvenile Justice Centre (Exhibit 9), Paul Houston - Manager, Employment Relations and Professional Conduct, DJJ (Exhibit 10). 6 During the hearing the Commission made the following orders by consent: 1. The detainees referred to in the proceedings shall be by way of their initials, 2. Any document that includes the name of the detainee that is tendered in evidence shall be on a confidential basis and, 3. The Commission makes an order prohibiting the name, address, picture or any other material that identifies or may lead to the identification of any detainee or the doing of any other things that identifies or may lead to the identification of any detainee. Background and Chronology - based on the transcript and the evidence filed. 7 Mr Dieter, who holds a Master of Arts and a Master of Applied Science Degree, commenced employment as a Psychologist with DJJ in August 1995 at Mt Penang and was subsequently located at the Frank Baxter Juvenile Justice Centre. The Employer's Reply to Mr Dieter's s.84 application noted that the applicable award under which he was employed was the Crown Employees (Department of Juvenile Justice - Detention Centres 2005) Award. Mr Dieter's s.84 application detailed that his normal gross weekly wage prior to his dismissal had been $2,243.90. However I believe that figure represents a fortnightly payment. There had been no disciplinary action taken against him nor had any performance issues been raised with him during his years of service prior to the issues that were raised in March 2006 which resulted in his termination. He had received annual increments as applicable under the Award. 8 In mid 2005 a new security system for keys issued at the Centre was introduced - the Key Watcher System. All keys issued for use in the Centre were fitted with a numbered device and staff at the Centre were each issued with a personal pin code which allowed them to place their keys into the system and retrieve them again by entering their pin number. The system records all transactions and alerts management when a key has not been replaced within a appropriate time period. Individual "Transaction User Reports" can be generated from the system. 9 Mr Dieter was not initially placed onto the system but was included in September and commenced using the Key Watcher System around 26 September 2005. He had previously had the practice of taking his work keys home on a daily basis. He was issued with three keys - Key 1 gave him access to enter the building (Bam 41.5); Key 2 access to enter the clinic foyer (Bam 41.18) and Key 3 access to enter the CST Office (Bam 41.48) (Exhibit 10 - Annexure A). 10 On Thursday 6 October 2005 Mr Dieter left work as scheduled at 10.30 am and tried three times to place his keys in the Key Watcher but was unable to do so. He ultimately took the keys with him. He did not go home but drove straight to the Gold Coast (Coolangatta Airport) to pick up his wife and they then proceeded to Brisbane for the weekend. Whist in Brisbane his car was broken into and a number of personal items stolen. This was reported to the local police (the reference number was provided in Exhibit 1). 11 On his return to work on Monday he was unable to access and retrieve his keys from the Key Watcher system. He reported this and was interviewed by Mr Wilson, the Centre Manager, and requested to provide a report (Exhibit 1 - Annexure D). In the report he advised that he could not retrieve his keys, declared that he had not taken them home and that he did not know where they were. Mr Wilson then conducted a Key Watcher Transaction User Report which indicated that the keys had been removed ( at 7.06 a.m.)but not returned on 6 October. A physical audit of the system was also conducted. Following a further interview with Mr Wilson and after he was asked to check whether the keys were at his home, Mr Dieter then provided another report (Exhibit 1 - Annexure E), outlining the circumstances that had occurred on the previous Thursday and also on the weekend, including that he had reported items stolen from his car to the local police, and that he had now recontacted the police and advised them that the keys were also missing. 12 On 11 October 2005 Mr Wilson forwarded a detailed memorandum on the incident ( with the Key Watcher reports attached) to Mr D Buchanan, Acting Regional Director of the Department's Hunter Central Coast area with a copy to Mr P Muir Assistant Director General (Operations) (Exhibit 10 - Annexure F). He advised that "whilst the keys did not provide external perimeter access, Mr Dieter's failure to follow Departmental and Centre guidelines is of extreme concern". He concluded by saying: "Given that Mr Dieter has admitted his actions (see attached report two) and his blatant failure and subsequent memory loss to follow Centre Procedures in relation to key safety and security, it is recommended that this matter proceed to disciplinary action." 13 A computer printout of the "KW Transaction User Report" applicable to Mr Dieter's accessing of the Key Watcher between 5 October and 10 October 2005 showed for Thursday 6 October that Mr Dieter logged on and removed key at 07:06 and was noted as "User Logged On" at 10:34, 10:34, and 10:35 with the next entry "Key Alarm Overdue" noted at 19:07 that day. On Monday 10 October, Mr Dieter was listed as "User Logged On" at 07:23, 07:49 and 13:29 (Exhibit 10 - Annexure B). 14 As a Psychologist at the Frank Baxter Juvenile Justice Centre, Mr Dieter was required to maintain a record of his contacts (interventions) with the juvenile detainees who were his clients. These records were kept electronically on a client information management system ("CIMS"). Three types of Case Notes could be recorded as a result of a contact with a client - Normal Case Notes ("NCNs") - accessible to anyone who had access to CIMS, including Youth Officers and the particular juvenile detainee the subject of the contact, Confidential Case Notes ("CCNs")- only accessible by the Administrative Manager and used to report sensitive information, incidents which might need follow up on an operational level, Specialist Confidential Case Notes ("SCCNs") - used to report confidential information on a client and accessible only by the Clinical Supervisor, Psychologists and other Specialist Services staff ("PSS staff"). 15 When a user opened CIMS and selected a client's name and then selected that client's "Notes", a list showed in chronological order every Case Note entered, its date and the type of Case Note it was (as outlined above). 16 Mr Dieter's Clinical Supervisor was Ms Sussana Walker who was required, in her role of reviewing Case Notes, to ensure that NCNs were provided with each SCCN in accordance with the instruction given by the Assistant Director General (Operations) on 1 July 2004 (Exhibit 3 - Annexure A). She was also required to ensure that the content was relevant and appropriate. 17 On 12 September 2005, Ms Walker conducted a supervision session with Mr Dieter during which she raised the issue of the content of some of his SCCNs and comments which she considered to be inappropriate as they were sarcastic or judgemental. 18 Between the 23 September and 4 October 2005 there was an exchange of e-mails between Ms Walker and Mr Dieter concerning her request to provide a missing NCN for a particular SCCN that had been entered onto CIMS by Mr Dieter on 16 September 2006. 19 On 5 January 2006 there was a further e-mail exchange between Ms Walker and Mr Dieter concerning her request for the further provision of a number of specific missing NCNs to match the corresponding SCCNs. 20 On 6 January 2006 Ms Walker met with Mr Dieter at the Centre to discuss the issue of the provision of the missing NCNs. 21 On 9 January 2006, Ms Walker sent a memorandum to Mr Doug Buchanan, (Exhibit 3 - Annexure B) bringing to his attention "professional conduct issues" in relation to Mr Dieter concerning inappropriate documentation in Case Notes ("sarcasm and judgemental statements....statements that are derogatory towards departmental and non-departmental staff or organisations"); two occasions of providing lengthy case notes which were not saved due to CIM systems problems; and his failure and refusal to comply with an instruction concerning the provision of a number of NCNs for the corresponding SCCNs that he had placed in CIMS. Included in Annexure B were copies of 5 Case notes considered inappropriate (Attachments 1,2,3,4 & 5); Mr Dieter's 2 entries on CIMS about the failed case notes (Attachments 7 & 8) as well as e-mail exchanges between Ms Walker and Mr Dieter on the issue of complying with the instruction to provide NCNs (Attachment 9). She concluded by advising that she had spoken to Mr Dieter and "explained that as a result of his ongoing refusal to accept directions from myself on these matters I have no other course of action than to report the matter to the Regional Director with a recommendation that the matter be forwarded to the Professional Conduct Unit for further action." 22 On 12 January 2006, Ms Walker sent a follow-up memorandum to Mr Buchanan (Exhibit 3 - Annexure C), providing further examples of Mr Dieter's Case Notes that she considered to be "unprofessional" and a summary list of 28 dates for 13 specific clients for the period 2005-2006 where there were SCCNs without corresponding NCNs. She concluded by saying "It would appear that this list would continue to grow until the issue is resolved." 23 On 24 February 2006, Mr Darren Byrnes (at the time Acting Coordinator Operations at the Centre) completed and filed a "Staff Report" detailing an incident concerning Mr Dieter escorting a detainee to a unit without a radio and without Operations' knowledge of this movement happening. The Report also included reference to Mr Dieter, "in an unprofessional manner" raising his voice at him and making the comment "their (sic) is not enough people in the Centre to stop me from doing what I do or what I want to do and I don't care who they are!" (Exhibit 8). 24 Mr Gary Hall, Youth Worker, overheard part of the conversation between Mr Dieter and Mr Byrnes but did not make any report (Exhibit 9). 25 By letter dated 21 March 2006, (Exhibit 10 - Annexure J), Ms J Mason, the Director General DJJ, advised Mr Dieter that she had received allegations of misconduct against him as follows: "That on or about 6 October 2005 you failed to return keys number one, two and three back into the KeyWatcher system. That during the period January 2005 to January 2006 you breached the Code of Conduct in that you disobeyed lawful and reasonable orders given by a person with authority by refusing to complete both specialist and normal case notes." 26 He was advised by Ms Mason that she had determined to deal with the allegations as a disciplinary matter under section 46(1)(a) of Public Sector Employment and Management Act 2002 and that " I have considered the available evidence surrounding the incidents and your admissions contained within that material and I am satisfied that you have engaged in misconduct". She indicated that disciplinary action was being considered which included a range of specified actions ranging from caution or reprimand to dismissal. 27 He was given 14 days from receipt of the letter to make a submission providing any additional information which he considered should be taken into account by Ms Mason before her final decision in relation to the disciplinary action being considered. 28 He was further advised in the letter that, before making a final decision, Ms Mason would consider the following: 1. Your memos relating to the missing keys (copy attached). 2. Ms Walkers report with annexures (copy attached). 3. The objectives of part 2.7 of the Act as stated in section 41 (copy attached). 4. Your previous employment matters (such as past remedial actions, warnings or disciplinary matters or alternatively previous satisfactory work history), conduct and services reports and personnel file. 5. Your submission if made. 29 He was also given the opportunity of having an interview with Ms Mason accompanied by a Union or other representative before a final decision was made. 30 Because the letter was sent to his home address rather than to the workplace (which Mr Dieter considered an invasion of privacy), Mr Dieter returned the letter to Ms Mason. No written submissions were made by him in response to the letter. However, Mr Dieter in returning Ms Mason's letter, indicated in his accompanying letter of 30 March 2006, (Exhibit 10 - Annexure K) as follows: "Dear Ms Mason, You appear to be in the lucky position to have the time and nothing more important to do than to worry about the enclosed, no doubt very serious matter, which demands immediate attention due to its severity. (Should it be correct, that is) Nor does staff involved in compiling the information seem to have more pressing matters on hand. I already breathe easier, as my view of what we are facing as a, and within our Department was a lot more pessimistic. Unfortunately/likely I am not in such a position and do have other, and may I say what I consider rather more important matters to attend to in my job. You obviously have decided in setting your priorities by getting these allegations your valuable time that I and a hope-and useless piece of equipment, the Department can well do without. Please make any decision you feel appropriate, and as you indicated in your letter, dismissal may be the option to consider here. However, I wish to ask three things of you: - do not send any departmental communication to my home address as in this case - please, take this wish very seriously - address your decision to my solicitor (address attached) Having said that, I agree you may want to talk to me before making a decision. However, I shall leave that decision to you, too." He then provided his contact phone number during office hours. 31 Mr Dieter also attached to his letter of 30 March 2005 an explanatory note concerning his "severe reaction" to her letter, expressing the desire to discuss the issues raised and giving the reason for providing the letter (Exhibit 10 - Annexure L) as follows: "The reason I enclosed my initial response is so you may hopefully get a more accurate picture of myself, and that yes, I can be prickly especially when it comes to issues such as the current. Hearing some more details you may, however or also understand the reasons for my attitude." 32 On 21 April 2005 an interview took place between Mr Dieter and Ms Mason and Mr Houston. Ms Lauren Dewsnap, Investigations Officer, from the Department was also present. The interview was tape recorded and a transcript made. As there were a number of "indisdinct" notations in the transcript as contained in Exhibit 10, the respondent had the tape further checked with corrections and amendments made and noted in red pen and a revised document was tendered (Exhibit 4). 33 Mr Dieter declined to have an observer present with him. The interview canvassed the allegations contained in the 21 March letter, with Mr Dieter responding to them with his explanation of what had occurred. On conclusion of the interview, which went for approximately one hour, Mr Dieter was advised that he would receive a copy of the transcript and could provide any additional letter or comments he wanted to lodge when he returned the transcript. 34 On 22 April 2005 Mr Dieter sent a letter expanding on his responses to the issues and allegations raised in the interview (Exhibit 10 Annexure P). This was followed by a further letter of 1 May 2005 (Exhibit 10 - Annexure Q) which summarised his responses to the allegations raised. He also returned the transcript with handwritten corrections and amendments noted (Exhibit 10 - Annexure N). 35 On 28 April Mr Dieter sent an e-mail to PSS staff at the Centre (Exhibit 10 - Annexure O) advising that Ms Walker had reported him for not providing NCNs with some of his SCCNs and that she had provided copies of some of his SCCNs to show he was using sarcasm and judgemental and derogatory statements and "lifted" and copied samples of his SCCNs from CIMS. The department had taken up her recommendation and had charged and found him guilty "(all in one efficient action") of professional misconduct and was now considering his dismissal as the appropriate course of action. He went on to say "In recognition of this, I will from now on provide "Normal" case notes and "Normal" case notes only. Hence do not expect too much information". (bold type as used by Mr Dieter) They were to contact him if they had any special queries ( he indicated that that was the main reason for the e-mail). He also apologised if any of his entries had caused any "psychological or non-psychological harm to anyone" and said that any offence caused with anything said or expressed was "purely incidental and unintentional". 36 Mr Dieter's e-mail was forwarded on to the Director General, Ms Mason, by Mr Allerton, the Director, Psychological and Staff Services, as he said "it relates to the PCU matter involving Mr Dieter." 37 On 3 May 2006 Mr Buchanan met with Mr Dieter concerning his e-mail of 28 April and issued a written direction that he was to comply with the provisions of the July 2004 executive memorandum concerning "interim procedures for use of case notes within CIDS" (Exhibit 1 - Annexure E). 38 On 8 May 2006 Mr Dieter sent an e-mail to Mr Buchanan confirming the details of the meeting (Exhibit 2 - Annexure F). 39 Mr Dieter and Ms Walker also had a conversation shortly after his meeting with Mr Buchanan as a consequence of Ms Walker sending Mr Dieter an e-mail advising that she would no longer be responsible for his supervision and that that supervision would be taken over by her clinical supervisor Mr Geoff Troth. 40 On 31 May 2005 Ms Mason advised Mr Dieter in writing (Exhibit 10 - Annexure R), that she had considered the submissions and additional information provided by him and had decided to take the following disciplinary action: " You will be allowed to resign from the Public Service by 11 June 2006, or upon failure to resign within this specified time frame you will be dismissed from the Public Service on and from close of business 11 June 2005." The letter was handed to Mr Dieter at the Centre by Mr Buchanan in the presence of Mr Wilson. 41 On 5 June 2005 Mr Dieter sent an email to staff at the Centre concerning the charge and finding of "professional misconduct", the allegations, and explaining his position (Exhibit 10 - Annexure T). This was forwarded on by Mr Wilson to Ms Mason. 42 Mr Dieter provided a written resignation to Mr Wilson on 9 June 2005 indicating "the letter gives me no choice, although I do not wish to cease my employment." (Exhibit 10 - Annexure U). 43 On 22 June 2005 Ms Walker sent a memorandum to Mr Houston (with a copy to Mr Mark Allerton, Director, Psychological and Specialist Services) concerning "George Dieter - Resolution of case Note issues" (Exhibit 10 - Annexure X) which advised of the action taken in relation to modifying the SCCNs considered to be inappropriate by removing the inappropriate comments, subject to approval by Mr Allerton, and to then be accessible to specialist staff in CIMS. In relation to the missing NCNs, these had been discussed with Mr Buchanan and Mr Wilson and it had been the agreed that "generating Normal case notes at this stage is unlikely to provide any benefit". She went on to note that because any specialist staff member could access these notes - "therefore clinical treatment should not be hampered by the lack of normal case notes." 44 Reinstatement of Mr Dieter was opposed by DJJ on the basis of impracticability relying on the issues of unprofessionalism in relation to the inappropriate comments in his Case Notes and security issues arising from the loss of the keys and the issue of his failure to use the radio. The Evidence 45 The relevant evidence of the parties (including the extensive cross-examination of Mr Dieter) can be summarised under the following headings: The Keys, Failure to Provide Normal Case Notes, Inappropriate Comments in Case Notes Security Issues (the radio incident), Procedures, Remedy Sought. 46 The Keys Mr Dieter deposed that it had been his practice to take home the keys provided to him ever since he started to work at the facility. In the process of being included in the Key Watcher system in September 2005 some keys which he had previously signed for were removed from his key ring and replaced by staff of the Centre without his knowledge or counter signature. He deposed that that meant that keys he had originally signed for and for which he was technically responsible had been taken out of his control without any record to show that this had occurred. He raised this concern of the issue of accountability for handling keys with the Centre Manager, Mr Wilson, who apologised for that occurring, but indicated that that was the end of the matter. He deposed that from Mr Wilson's reaction it appeared to him that the access his keys provided were not regarded as presenting any security problem. 47 He considered the removal of his keys without his knowledge or counter signature to be an inappropriate action by the Department. 48 When Mr Dieter was given his new keys he was shown how to use the Key Watcher system but not given any written instructions nor any instructions about what to do when the system did not work which he said had happened on a number of occasions before. He was also given no instruction to the effect that from that time onwards it was either illegal or inappropriate to take his keys home under any circumstances. 49 He had no problems with being placed on the Key Watcher system and never complained about it. The system was a convenience because he didn't have to worry about the keys any more and most importantly didn't forget to bring them in the morning. 50 When he left work on Thursday 6 October 2005 at 10:30 a.m., he tried to put his keys into the Key Watcher three times but access was denied to him and he therefore took the keys with him placing them in the centre console(which had a lid) located between the front seats of his car on top of other personal belongings. He didn't subsequently keep the keys with him on his person as he forgotten that he had placed them in the console. He was unable to park his car in the hotel car park in Brisbane and had to park it on the street. The car was broken into and a number of valuable personal items stolen from the centre console. When the break-in occurred he did not realise that the keys had also been taken. 51 He did not think that taking his keys with him was a security threat for a number of reasons as follows: � His keys were only for certain areas inside the Centre and did not relate to any entry or exit doors to the Centre, there were separate access cards for entry to the Centre which were not attached to his keys. � His previous longstanding practice of taking his keys home which he had continued in the period after the Key Watcher had been installed and before he was put onto the system. � He had been on the Key Watcher system for less than two weeks when this occurred. � There was an absence of any instructions as to what to do if the system failed to operate as intended. � When his former keys were taken from him no signature was required for their release nor for the new keys he was given which left him with the "distinct impression" his keys were of no significant security concern. � Other people working at the Centre had lost keys resulting in locks being changed and those people had not been dismissed. In his case the locks weren't changed, which supported his view that the temporary loss of the keys was not taken as seriously as those times other keys had been lost. � He was a Psychologist and was not part of the operations division of the Centre and did not have responsibilities or training of a relevant security or operational nature. � The keys had no special markings or identification which allowed anyone to know their purpose, only the telephone number of the locksmith engraved on the keys. He considered the keys were safer from being misused when stolen in Brisbane than they would have been if lost in the Centre. � Given "the nonchalance " with which his original keys were treated, it wouldn't have been wise to hand over his keys without receiving a written receipt/confirmation which wasn't an option at the time as there "was neither enough time nor is it likely anybody would have signed to be responsible for my keys" . 52 He took the keys with him because there was no process of what to do when the system didn't work. There was no-one around, he was in a hurry and he did what he'd done for the last 10 years. No-one told him he couldn't take his keys home any more. He just did what was natural, there was no prior intention in his actions. 53 He did not agree that, with the installation of the Key Watcher system, that specifically meant he wasn't to take the keys home any more. If that was the case he said why wasn't there a policy to say what to do if the system failed. If it had happened the week before, the issue wouldn't have been there because the Key Watcher wasn't there, but his keys would still have been stolen. If it had been policy to give his keys to someone in a position of authority he would have done so. 54 He didn't know how many staff were on duty at the time on that Thursday and whether or not the Manager was there. He agreed that approximately 10 metres around the corner from the Key Watcher, was the Operations Centre and that between 1 and 10 staff would have been there however he did what he thought was right at the time and that was just as reasonable as the suggestion he find someone such as a Duty Manager to give the keys to. He did not accept that that would have been the common sense thing to do. It wasn't a viable option and if he was concerned about the safety of the keys then he would have had to have had a receipt and no-one would have done that. He did not accept that that was a slur against the staff and the Centre or that he held his colleagues in contempt. 55 He ultimately agreed that every key in the centre represented a security issue if lost especially if a detainee got hold of one. 56 Mr Dieter deposed that when he tried to access the Key Watcher system on Monday 10 October he had forgotten that the system had failed the previous Thursday and had also forgotten that he had taken the keys with him and that they were in his car when the break-in occurred and did not realise that they too had been stolen. It was only after he had made his first statement and had spoken again to Wilson, that he remembered that he had taken the keys with him the previous Thursday. 57 He agreed that what he had said in that first statement wasn't true but at the time he wrote the statement that was his recollection. He made an honest mistake. 58 He remembered he had taken the keys with him when Mr Wilson spoke to him a second time after he had made his first report and told him to go home and check if the keys were at home. That was when he realised he didn't go home on the previous Thursday but went to Brisbane. He denied that he had been untruthful about saying he had forgotten the keys were in his car and also denied that he had been deliberately untruthful prior to speaking to Mr Wilson in saying that he didn't know what had happened to the keys. He also denied that it was only after Mr Wilson suggested he go home to look for them that he realised he could not maintain the lie that he didn't know about the keys not being returned and only then realised he had to tell the truth. 59 He also deposed that in relation to the alert raised by the Key Watcher system when he hadn't place the keys into it, that this alert was supposed to be followed up by management or security as it could mean that someone may have come to grief and hence not returned their keys. The alert had occurred on the evening of 6 October 2006 however no alarm was raised and he was not contacted by management at any time between 6 October and 10 October. He went on to depose that it was his only when he brought the matter to the attention of management and security and raised the alarm "believing my key had been removed by person(s) unknown," that management became aware of the fact of the keys not having been returned on 6 October. 60 Mr Dieter maintained that this seemed to indicate no attention or concern was paid to keys being returned into the Key Watcher system at the time, which he said was further supported by the fact that many employees had not placed their keys back into the system without having any action taken against them. 61 He agreed that during the second interview with Mr Wilson he was told that the Key Watcher system had raised an alert but denied that Mr Wilson showed him the Key Watcher report. 62 Mr Dieter did not think to report to anyone that he'd had to take his keys with him on the Thursday because he had taken the keys home with him for the last 10 years and he never called anybody. He agreed at that time there wasn't a Key Watcher system but he had spent no time thinking about the Key Watcher system and its function and the fact that when it was working it could tell whether keys were where they should be. 63 Mr Dieter indicated that when Mr Wilson interviewed him that day he only asked him to write a report, he did not at any stage indicate to him that he thought it was a serious issue or that he was concerned about it or that he was going to refer it on to anyone else or make a report about it. 64 After writing the second memo to Mr Wilson about what had occurred with the keys on the weekend, he heard nothing further about the matter in any way until he received Ms Mason's letter of 21 March 2006. He was subsequently given another set of keys. 65 Mr Dieter did not agree with the proposition put to him that if his memory was so poor that he could not remember four days later that he had taken the keys away from the Centre and was prepared to sign a document declaring he had not taken the keys home etc, then he was not suitable for employment in a detention centre or any part of the Department of Juvenile Justice and that it was not in the public interest to employ him in the sort of position he held. 66 Mr Dieter responded by saying that he could not see that this incident was a security risk or in any case remotely related to other security breaches where people had lost their keys in the Centre. Nor could he see why all of a sudden he was not fit to work in the Centre while other people had returned and were given the same keys that were recut at the time and kept working there. He didn't know why this would suddenly be such an issue when it wasn't an issue at the time. Nothing was raised with him at the time or officially. He wasn't even informed that there was something happening. There were no keys recalled, no keys recut and there was no counselling about what to do. There was no consequence at all and suddenly six months later it was construed as something that was a "hanging offence". He was not aware that he was breaching any policy or that his behaviour would be construed the way. Had it been otherwise he would not have left himself open to that. It had no bearing on his ability to work as a Psychologist in the same way that he did in the six months between October and March or June. 67 He further indicated, in referring to Ms Walker's comments about his professionalism and also Mr Wilson's comments, that he didn't know why suddenly anyone would see this as a professional indictment or an inability to do his job as a Psychologist. He couldn't see that impacting on his ability to do his job the same way that he had done the last 11 years. 68 Within the Centre he maintained security at all times. The only way he could lose the key, as he did, was outside the Centre and unless he was seen dropping it and someone knew he was working at the Centre even then it would not help them get access to the Centre because they would need both the key and an access card and at the last, Operations would have to let them through the door. What had happened with his keys was not foreseeable, it was basically an accident and not something that he tried to instigate in a "stuff the Department" manner as was suggested. Failure to Provide Normal Case Notes (NCNs) 69 Mr Dieter deposed that prior to 2004 and the introduction of CIMS, Psychologists employed by DJJ used to enter confidential information in the Allied Health File in hard copy format with access only for counsellors, psychiatrists and nurses. "Access by others, even managers, was a hotly disputed issue". 70 He deposed that with the introduction of CIMS the issue of access to Case Notes "then came to a head". Mr Peter Muir, Director of Operations suggested that all information be entered as an NCN. This would mean that the information would be accessible by anybody authorised to log on to the departmental computer system that is anybody who worked in the Department. This was resisted by specialist services staff such as psychologists at the "highest level, as we are professionally bound by confidentiality regulations". 71 An interim "solution" of three types of case notes was introduced in July 2004 (as detailed in the Background and Chronology above) and Psychologists were instructed to put both kinds of Case Notes for each "occasion of service" - SCCNs containing the more sensitive information and, NCNs for other information. When an SCCN was entered it was to be accompanied by an NCN. 72 Mr Dieter deposed that this represented a further extension of duties for the PSS staff on top of previous extensions of responsibilities. He gave examples such as not "backfilling" positions of absent PSS staff, caring for remand detainees, additional meetings to be attended and additional paperwork to be filled in for the mental health clients to be seen by the psychiatrists. 73 If there was nothing to record for Operational Staff then they were told by Mr Geoff Troth, Assistant Director Specialist Services, to enter an NCN simply stating "I have seen the client". Mr Dieter considered the fact that he had "seen the client" was self evident from the fact that he had entered a SCCN which was dated and the fact that he had entered the SCCN was apparent to all users of CIMS when they went into the system and selected the client's name. Although not everybody was able to view the contents recorded in SCCNs, everybody who used CIMS could see when and by whom a Case Note had been entered, and in Mr Dieter's case this indicated that the client had been seen by him and on what day he had seen him. 74 Mr Dieter considered that the allegation that he did not supply NCNs involved the situation of duplication. The fact that he had seen/spoken to a client was evident from the list of contacts which appeared upon opening a client's details. He complied with the instruction for more than a year, even though it was only an interim solution, until the duplication of such an entry became a burden because of his client caseload increasing, and the quality of his clients and filling in for absent counsellors becoming more demanding of his time. 75 In broad terms he made between 600 and 1000 computer entries for Case Notes either Specialist or General (Normal) in a year. This was not necessarily disputed by Ms Walker who said she couldn't really say whether it was an accurate assessment as it would depend on how many clients he had. 76 He deposed that told his supervisor, Ms Walker, that he couldn't see any reason for reporting superfluous notes any further because of the waste of time involved and the lack of time available to him. She told him she would have to report this to her supervisor and Mr Dieter indicated to her that he was looking forward to having the issue resolved. However there was no follow-up on this issue by way of resolution or training/performance evaluation. This led him to believe that his point had been quietly accepted and some months later he referred to this by telling Ms Walker that no one had got back to him on this, saying "I bet they won't because they know what a waste of time and money this is". 77 Mr Dieter deposed that the Public Service Code of Conduct required reporting of wasteful behaviour and that this was an example as it wasted his time and that of the people who opened the Case Note in CIMS which contained no additional information. 78 He considered his discussions with Ms Walker represented to him the necessary report requirements. Further, no employee of DJJ had ever challenged his contention that an NCN to the effect "I have seen the client" was indeed superfluous. Neither had anyone ever advised him of the utility or purpose for such an NCN in circumstances where the information contained therein was self evident upon any entry of a SCCN. 79 Mr Dieter was not aware of the memorandums that Ms Walker had sent to Mr Buchanan (Exhibit 3 - Annexures B and C) on the issues concerning his Case Notes. 80 Mr Dieter also deposed that he was not aware that Ms Walker was required to review NCNs. He was aware her duties included reviewing SCCNs but issues concerning NCNs came under the supervision of the Manager Client Services (Ana-Marija Ciko), who would then take up the issue with him. 81 Ms Walker deposed that it was her standard practice to contact staff that had not completed NCNs and request that this entry be made. Mr Dieter was the only staff member in the team who refused to do so. Avenues were provided for him to pursue his objection to entering the NCN, however he was still required to follow the instruction by the Assistant Director General (Operations) until such time as his complaint was resolved, but he refused to do so. 82 Mr Dieter deposed that the reason he may have been the only staff member who "refused" to enter a particular kind of NCN in question was because of in the nature of his clientele and his work with those clients. As the most senior Psychologist, his caseload comprised not only the more difficult clients but also those with longer sentences and hence his work involved exploring more psychodynamic aspects of their lives, the details of which were not subject to NCNs. He went on to say that any infrequent cases when only such personal details were discussed in session, he would have been required to enter an NCN stating that "I have seen the client", something which was evident from his entry of an SCCN (as exampled in Exhibit 2 - Annexure B). He deposed that other counsellors, due to the fact that they worked with acute and behavioural aspects of their clients and therefore relevant for NCNs, would not be in the same position as he was of conducting exclusively psychodynamic work. It was therefore quite possible that he was the only staff member who did not complete NCNs on these particular occasions. 83 He confirmed his understanding of the July 2004 memorandum concerning the various types of case notes, the distinction between them and the information that was required for each type. 84 Mr Dieter also confirmed that Ms Walker had asked him to do NCNs with respect to certain particular clients and that he did not do them. The reason was because at that time he was only working four days a week. He was taking the Friday off because he had excess leave so he had to complete the same work in four days a week. The entries that he was supposed to make were already on the computer because the entries were that he'd seen the boy which was evident from the computer screen. So what he was required or requested to do was already on the computer and he discussed that with Ms Walker. 85 Mr Dieter said that what was in the NCN was never the issue. It was always understood that the ones Ms Walker raised were the ones where he would have just had to say he'd seen the client, and that was already evident. They then discussed that there was an issue because it was really a waste of time and she wanted to take the issue up with a supervisor. Mr Dieter said she apparently did but she never told him that nor was he ever aware of what was happening. As far as they were concerned the issue was that he was not putting these case notes on because of his time constraints, and because it was basically a duplication of something that was already on record. 86 With some long-term clients sometimes he only discussed personal matters. In that case there was nothing to report to Unit staff. But it would already have been evident when you opened a computer screen that on that day, for this client, George Dieter had seen him and put a confidential case note on. 87 Mr Dieter was taken through a number of his case notes as annexed to Exhibit 10 and the type of information contained in them. He agreed that in general, detainees should have a case plan which sets out goals with respect to improvements in their behaviour, their rehabilitation and as to their care and that if his counselling had any link to any of those then anybody who looked the particular SCCN could only guess at what that link might be. Mr Dieter indicated that in that case he would put an NCN in. 88 Mr Dieter indicated the type of information that on occasions he would have included in an NCN. He agreed that he was addressing some issue every time he had a session with the client and at the outcome of the session was recorded but did not agree that there always was an outcome. 89 He said that it was not necessarily the case that he would only do an SCCN as a result of a face-to-face meeting with a client. If he received a phone call with information, or information through other means which was of a confidential nature, he would put that on the confidential case notes and would indicate that someone had rung him. In that case he would probably put an NCN but generally one would be able to see from the description of the SCCN what type of contact had occurred. 90 As far as the issue of other people who accessed entries not knowing when he considered it appropriate to make an NCN and when he didn't, he indicated that he put in relevant information and if there was nothing there then there was no relevant information. If the session was just counselling or therapy, there was no provision for entering therapy and he would just click on counselling and then they would know that there was no official business concerning that client. There wasn't always an outcome. If there was a reason to disseminate information then it would be in the case note. If there was nothing to say because it was just pure therapy or psychotherapy it would be in the confidential case note and there would be nothing to report for general consumption. 91 Ms Walker confirmed that she understood that Mr Dieter's objection to doing an additional NCN was when there was nothing to say except "he saw the boy". She agreed that there was no problem with him providing an NCN when there was something to put in it. 92 It was her feeling that on Mr Dieter's part, it was a philosophical argument or disagreement with the procedure and that in his view it wasn't relevant and useful to the process. 93 She agreed that if in doing an NCN nothing more was put than " I saw the boy", then that was duplication. She also agreed with the example given of Mr Dieter spending the entire period of a consultation with a client in therapy with nothing of operational value from that consultation and that an NCN in that situation had no value at all, except that from an operational point of view they would have seen that Mr Dieter had met with the boy. In that situation that would be a duplication. 94 However she also indicated that an NCN should indicate a bit more than just that. She said that generally in an NCN you would at least put in whether the client was responding to counselling or "stuff like that" to give the casework process an understanding of how they were responding to a service that was being provided to the Centre. Ideally in a case note you would be putting in some sort of information for casework processes as well. It should be reported properly so that it would actually be a duplication. 95 If the manner in which a client responded was itself confidential then she was sure that most professionals would be able to provide that information, as they do regularly in meetings etcetera, to highlight how the clients were responding without breaching confidentiality. Also every practitioner should be giving the limits of confidentiality to a client beforehand, so the client knew how far and to what extent information was being transported. That protected confidentiality as well. 96 As she understood it, if Mr Dieter had written an NCN that just said "I saw the boy" then that would not satisfy the policy because if you looked at the actual policy it had a list of things that should be included in an NCN. Although she did concede that not all of the items contained in the list of information detailed in the policy would be appropriate for inclusion (for example "homework"). But she said "best practice" would be to make some sort of reference to assist casework processes. She agreed that that came down to how loosely that was defined and how much was left to professional judgment. 97 Ms Walker indicated that NCNs were helpful to Unit staff in managing detainees because Unit staff usually developed the client's case plan and they needed to know how clients were responding to different services, whether they were benefiting from those services or refusing those services so they could actually case plan the client's time in custody. If there were specific sensitive issues for the client that may came on the Unit, that could be put in the NCN as well, like "young person experiencing some level of grief", so the staff would know to be a little bit more sensitive around the issue. Those sort of management issues, as well as any rehabilitative aspects which impacted on their case management through the Centre, would be relevant. She considered that it would enhance their ability to manage the client and help the client get through their case plan, particularly if the client was being resistant to counselling or something like that. 98 Ms Walker did not regard it as being consistent with being "an excellent practitioner" to just make a case note of "I've seen the boy". She agreed that a practitioner should be able to do an NCN at the same time as they did an SCCN without any problem. Everybody else in the team did it. 99 Ms Walker had no concern about Mr Dieter's professional judgment as to what matters went in an NCN and what matters went into an SCCN. 100 She said they had a professional relationship, were colleagues, did not socialise outside of work and respected each other's work. 101 The detail of the e-mail exchanges between Ms Walker and Mr Dieter which Ms Walker reported to Mr Buchanan (Exhibit 3 - Annexure B, Attachment 9) concerning the completion of NCNs commenced on 23 September 2005 and carried through to the 4 October 2005 was as follows: >> Sussanah Walker 23/09/05 11:20:22<< Hi George Detainee X needs a normal case note for the 16.09.05,could you please do this? Thank-you Kind Regards Sussanah Walker (with position title and work address details listed) >>George Dieter 28/09/2005 7:20:11 am<< No, he doesn't. >> Sussanah Walker 29/09/05 9:29:15<< was the specialist case note dated for 16.9.05, intended to be a normal case note? S >>George Dieter 29/09/2005 1:19:45 pm<< Don't know. what does it say? >> Sussanah Walker 29/09/05 13:30:30<< Hi George, As you are aware, each SCCN needs to be matched with a NCN. In the case of this client, you have done just that with the exception of 16.09.05. So I wanted to clarify whether you had forgotten on this occasion, or the case note dated the 16.09.05 should be normal (though reading the content I doubt it)... I am aware that there are problems with CIMS, so I would like to clarify if there is a computer or human error (neither being life threatening)... Let me know S. >>George Dieter 29/09/2005 3:34:28 pm<< Dear Sussanah It is a specialist case note, and I REFUSE to add a note saying that I saw the kid. This is evident from my special case note. If somebody, anybody has a problem with effecting this association, I suggest they look for another job. One where they don't have to read nor write. I think the council is looking for some garbage collectors. And I'll be off until Tuesday. Cheers. HG >> Sussanah Walker 04/10/05 09:07:21<< Hi George, I hope you had a good long weekend. I realise your position in relation to normal case notes, however the provision of the normal case note in addition to the specialist confidential case note is a DG instruction (which I have attached for you). If you wish to take the issue further, I am happy to ask Geoff or Mark to speak/meet with you, alternatively you may wish to pursue the issue operationally. Could you please provide the Normal Case Note, and let me know if/how you would like to pursue the issue. Kind Regards. Sussanah Walker >>George Dieter 04/10/2005 11:29:08 am<< Yep, do that please. I am sick of stupidity! If the DG has nothing better to do, I DO! >> Sussanah Walker 04/10/05 14:07:17<< Hi George would you like to speak with Geoff as a starting point, or will you be following up with Ana-Marija? Sussie Kind Regards Sussanna Walker >>George Dieter 04/10/2005 2:17:38 pm<< Ok. Can do. >> Sussanah Walker 04/10/05 14:19:40<< which? From: George Dieter To: Sussanah Walker Date: 04/10/05 2:21:38 pm Subject: Re: case note Crikey! I'll tell AM. 102 Mr Dieter denied that his responses to Ms Walker's request of 23 September in the e-mail exchange were dismissive or that he treated her with a certain amount of contempt. Nor did he agree that it treated Miss Walker's request as though it was of no concern to him whatsoever and that the request could be simply dismissed without any explanation. He believed the brevity of his answers was connected with the factor of not having enough time to respond properly because of his workload. 103 He denied deliberately setting a course that was contrary to the Department's procedures. He wanted to point out or draw attention to the fact that this was a waste of time, and he did draw attention to it. 104 When he was asked to do the case note by Ms Walker he did not see it as a requirement under the Department's procedures because it was a duplication and he raised that with Ms Walker in his own way. He talked to his line supervisor Ana-Marija Ciko and she said she was going to discuss it with Mr Geoff Troth, but she never got back to him. 105 In relation to Ms Walker's e-mail of 29 September he regarded it as a light-hearted request but agreed it was clear she was seeking clarification. He regarded his response that same day as a proper response from a responsible psychologist to his clinical supervisor. He maintained the words "refuse" in capitals was as light-hearted as Ms Walker's comments "neither being life threatening". He used the words "I refuse" in capital letters as a play on words to say "okay take it up and let's get the show on the road and this thing out of the way." 106 He denied that he typed the word "refuse" in capitals to emphasise that he was refusing and that there was nothing light-hearted about that but that he did it to emphasise his position. He denied making the reference to people needing to look for another job etcetera to indicate his contempt for those that held the view different to his own that it was wasteful to require him to complete an NCN. 107 He could not say whether the DG instruction was in fact attached, as Ms Walker indicated but said that was possible and if she did then he read it. He agreed her request was a polite one but queried whether the instruction was actually correct. Whilst he agreed that he was saying he was sick of stupidity he could not recall what he thought the stupidity was that he was sick of as at that date. He acknowledged that he was not very happy about certain issues at that time. 108 Ms Walker agreed that the e-mail exchange was an informal communication between herself and Mr Dieter and that there was a type of one-way banter contained within it. However she did not take it as banter, she took it as "I've had enough of the system, I've had enough of you and I'm not going to do it". She was taken aback by it. 109 In relation to her use of the term "one-way banter" she wasn't sure whether he was trying to be funny or trying to make a point. That sort of banter was not something she felt she could really reciprocate. 110 She did not understand that the exchanges on the 29th with the word refuse in capital letters was part of an in-joke between them. She took it, at that point, that there was an unequivocal refusal to do the NCNs and that he refused to take instructions from her. 111 Mr Dieter was taken to his two case notes for 6 December 2005 as mentioned in Ms Walker's 9 January memo (Exhibit 3 - Annexure B, Attachments 7 & 8) which read as follows:- Attachment 7: Note Date: 6/12/05 Note Created: 6/12/05 Left lengthy assessment on the system, which it decided to 'swallow' or put somewhere, where I can't find it. And there's where it's going to stay, because I'm not going to write it again. There was a handwritten notation on the attachment - "Specialist casenote" Attachment 8: Note date: 6/12/05 Note Created: 7/12/05 Put down lengthy assessment which the system again decided to bury somewhere and this is where it can stay for all I care. I am not going to write it again. If there are any concerns or questions re G please don't hesitate to contact me. There was a handwritten notation on the attachment - "Normal casenote". The hand writing matched the handwriting of "Attachment (and relevant number)" at the top right hand corner of the pages annexed to Ms Walker's Affidavit. 112 Mr Dieter said that it was the third occasion within a short period of time that he had put down a lengthy case note which was then swallowed by the system, because it shut down and was all gone. He recalled it quite clearly, it was utter frustration and hence he put the comment that if there were any questions to please contact him. He didn't know if it was a computer malfunction, he thought part of the whole program was faulty. 113 He did not agree that the attitude he had expressed in what he had written was an irresponsible attitude but did agree that it was an entirely inappropriate entry for him to put into a case note of a juvenile. 114 Mr Dieter said the second entry the next day (Attachment 8) could have been the same note that he tried to write again and that he obviously must have put it in at some stage because it was not listed as one of the case notes missing. At that point it would have been at the expression of his frustration. He agreed that the note was inappropriate. 115 Ms Walker was not specifically taken to the issue of the case notes contained in Attachments 7 & 8 above. 116 On 5 January 2006 the following the e-mail exchange took place between Mr Dieter and Ms Walker: >> Sussanah Walker 05/01/06 13:12:45<< Hi George I finally had a chance to clear a backlog of case notes and had been following up with the staff on any anomalies...I appreciate that despite your view on the purpose/use on normal case notes, you have on the most part provided them for most of your specialist notes... could you also please complete normal case notes for the following specialist case notes: (There was then listed, for 6 specific clients, 10 separate dates) I have raised your view with Jeff, and encourage you to speak with him or and Ana-Marija on the issue. However, if the case note are not completed, I am held accountable for that, so your assistance would be appreciated. Kind regards Susanna Walker From: George Dieter To: Sussanah Walker Date: 05/01/06 3:31:04 pm Subject: Re: case notes Dear Sussie, not trying to be difficult -- I can do that without trying, the short answer is 'no', won't do any more entries on these case notes. Have got> enough to do to keep up with what I DO enter. If anyone has a problem, please refer them to my formal refusal to do double entries. The non-sense stops right here and now, for me anyway. However, against appropriate payment of overtime I might re-consider and keep some bureaucratic pencil pusher happy. Otherwise please forward this response to whom it may concern. My telephone no is 43403827, mostly here between 7.00 and 15.30. Cheers George 117 Mr Dieter agreed that the request made by Ms Walker was not abrupt or rude in any way. He saw it at the time as a total underestimation of his situation. Rather than helping him out, she was insisting on him doing something which she agreed was superfluous and didn't add anything to case management. He discussed it with her at the time as well as later on. It was in total denial of what was happening at the time at the Centre with him and his work. He was one of only two counsellors which she was aware of. He raised the issue with her in supervision, he also raised it with Ana-Marija who wanted to raise it with the Assistant Director of Psychological Services. There was no come back and as far as he was concerned the matter was closed, there wasn't a problem it was over. At the time it was something that would have been at the bottom of his priority list. 118 Ms Walker agreed that there were significant staffing issues at the Centre in the second half of 2005, that they were down to two counsellors and that Mr Dieter was taking one day a week as leave from about October. That was a matter for Ms Ciko. 119 Mr Dieter did not think that the situation with the NCN's was actually comprised by the Director-General's instruction, he was quite sure they weren't even thinking of that possibility. So he raised it with Ms Walker and Ms Ciko. He mostly complied with the instructions to supply normal as well as confidential case notes and it was only on a few occasions when it would have been duplication, and they were the ones on the list, that he didn't do this. 120 Mr Dieter said it was not with any disrespect that he said he didn't care what they say. If he had got an instruction that "yes, we know you're concerned and yes we still want you to put these case notes on," then he would have put them on. 121 He acknowledged that there was a refusal of a request but explained that what he was refusing to do was double entries. If they had a problem with that then if they had instructed him according to the process then he would have had to do it. He did not think that it was not a reasonable request but that it was a waste of time and not what was intended by the original instruction. 122 He did not accept that Ms Walker had given him an instruction as he maintained she could not give him instructions and did not have the authority to so instruct him as it fell outside her role as his clinical supervisor to monitor NCNs. He cited the "Supervision Agreement" he had with Ms Walker as supporting this position (Exhibit 2- Annexure A2). Whilst he acknowledged she provided him with the DG's instruction he didn't think that what was being talked about was covered by the memorandum and brought it to their attention and wanted clarification. 123 Ms Walker agreed that it was not strictly her responsibility to review the NCNs, that was Ms Ciko's role. The direction that she got from her clinical supervisor was that it was her function to monitor that process. 124 Mr Dieter did not think that the DG or anybody below him would agree that he would have had to do those case notes had they known the circumstances. Hence his indication to pass it on to whom it may concern. He would have expected that whoever that might be, either Ms Ciko or Mr Buchanan or anyone else, to give him a call about the problem, or discuss it or tell him to do it or put it in writing. Then it would have been an instruction and then he would have done it as he had conformed with any other instruction for the last 11 years. 125 It was Ms Walker's evidence that due to the issues with Mr Dieter being ongoing (including inappropriate comments in case notes) and the failed attempts to address the issues with him through supervision, discussion and correspondence (the e-mails), she was advised by her administrative supervisor, Mr Buchanan, and clinical supervisor to address the issues more formally in a disciplinary context. She was reluctant to do this and attended the Centre on 6 January 2006 to "appeal" to Mr Dieter to comply with directions or she would be obliged to refer the issue to the Regional Director. 126 She deposed that she could no longer recall the whole of what was said during the conversation she had with him that day, but did recall that she told him she would prefer him to complete the case notes and take his issues to Geoff (Troth) or Ana-Marija and that if he continued to refuse she would have no option but to notify the Regional Director of his refusal to follow a direction which could lead to the PCU being involved and possibly the worst outcome. 127 She deposed that Mr Dieter got excited and said words to the effect of "no, no, I want you to take it up". And when she asked if he was sure he wanted to risk this outcome Mr Dieter said words to the effect of "they won't touch me". He also suggested that she put in her statement that he was aggressive and she told him that she was only going to put in the issues. Mr Dieter was not aggressive to her during their conversation. 128 Mr Dieter deposed that he considered that the meeting was a usual supervision session in which Ms Walker raised the issue of case notes with no indication of any special purpose in doing so, other than she had previously raised the issue. She did not make any mention of the fact that she had been advised to speak to him, however she did say she would have to refer the matter to the Regional Director. He denied saying "they won't touch me" but instead said words to the effect of "you've got to be kidding! I am telling you time and money is being wasted and you tell me this could amount to professional misconduct? You have to be kidding!" . 129 However he deposed that later on he made some comment to that effect, but that was made in the context that he hadn't heard from head office and didn't think he would and said "they won't touch me because they know I am right. But they do not want to admit it. It will be changed quietly, you wait and see". He deposed that at no point was that said to convey the implication he was above everything and could do as he pleased because he was "untouchable". It never appeared to him that Ms Walker understood it like that. 130 Ms Walker could recall him say "they won't touch me" but not in the same sentence as Mr Dieter maintained it had been said. 131 Her interpretation of what he meant was "basically that he wouldn't be affected by anything that was put up - if it went to PCU, there would be no ramification for him, like it wouldn't be disciplinary or anything like that". 132 Ms Walker said she felt very uncomfortable and anxious during the meeting with Mr Dieter. That anxiety manifested itself in getting "the butterflies" and in feeling "giggly". This was not while she was talking to him but as she was leaving . She could not recall if they had a conversation outside over a cigarette. They had a few cigarettes out together. 133 Mr Dieter said he was very surprised to know that during the conversation Ms Walker was anxious and also felt that her stomach was in knots. They had laughed together and had gone outside and had a cigarette together. He agreed that people could laugh when they were stressed or as a nervous reaction to what was happening. 134 Mr Dieter reiterated in his statement in reply (Exhibit 2) that he never intended to "refuse an instruction" or directly oppose Ms Walker personally. His actions were directed against the policy which did not envisage at the time of its inception the circumstances he was raising. His "refusal" was always aimed at bringing the matter to the attention of management and alerting them to the fact that it was a waste of resources, which fell under the reporting requirement of Departmental guidelines. It appeared this had never been related to management as intended or they refused to acknowledged his complaint and appeared to have simply accepted it as an act of "refusing an instruction". 135 After Ms Walker had sent the memorandum of 6 January 2006 (Exhibit 3 - Annexure B), Mr Buchanan requested that she go back and identify all the SCCNs without NCNs for the period 2005-2006. That resulted in the memorandum of the 12 January 2006 (Exhibit 3 - Annexure C). 136 She was not interviewed subsequently at all and she was not aware of what disciplinary issues were raised with Mr Dieter. Once she put the memorandums in, it went to the Regional Director and she had nothing more to do with it. 137 Once Mr Dieter had refused to do the NCNs as requested, she did not then go in and do them herself as it was not her role to actually do the NCNs, her role was only to monitor that they were being done. The practitioner generating the SCCN was the best person to actually put the NCN on. 138 After January 2006 she could not recall anyone saying an NCN should really be provided for the SCCNs in question. She had raised the issue with Mr Troth and the process was still being resolved by the Department and they were awaiting an outcome for what the delegation would be in relation to SCCNs and NCNs. The situation was not in a state of flux as there was still an interim procedure to follow until the issue was resolved. 139 After she had sent the memorandums to Mr Buchanan in January, Ms Walker continued to work professionally with Mr Dieter and there was no on-going issue of him refusing to follow other instructions of hers only the specific ones relating to the NCNs. However whilst she was still able to continue working with Mr Dieter, she felt uncomfortable. She could not recall what was the triggering factor, but she subsequently spoke to her clinical supervisor who suggested he would take up the supervision of Mr Dieter removing that responsibility from her. She sent an e-mail to Mr Dieter around that time informing him of that. 140 In relation to the e-mail of 28 April that he sent to PSS staff, Mr Dieter maintained that it was not sarcastic and that the apology contained within it was sincere. It wasn't sent to cause disharmony, the issue was confidentiality. 141 He agreed that it would have gone to all of Ms Walker's peers. It was not his concern if her reputation was damaged or not. His concern was for the confidentiality of the case notes. He did not consider her standing with her peers at all. He considered that this was his course of action and to explain to his colleagues why he took that action. He denied it was a criticism of Ms Walker, he was just stating facts. 142 He denied that when he said "....the Department has taken up Ms Walker's recommendation, has charged me and found me guilty (all in one efficient action)..." that he was expressing complete and utter contempt and sarcasm for the Department. To him it was just a fact and still was. 143 Mr Dieter deposed that when he met with Mr Buchanan on 3 May and was handed the letter (Exhibit 1 - Annexure E) he was asked how he felt about Ms Walker and he told Mr Buchanan he had no problem working with her. He was then told that Mr Buchanan didn't want him to be angry with Ms Walker but to be angry with him because he had asked her to write the complaint. He could have dealt with it himself but "thought it was bigger than that". 144 Mr Dieter deposed that he did not understand why Mr Buchanan had not dealt with the matter himself as it could have been resolved at a much earlier stage. He recorded the statements Mr Buchanan made as soon as he got back to his office and subsequently sent him an e-mail to confirm the discussion that taken place during the meeting (Exhibit 2 - Annexure F). 145 After the meeting with Mr Buchanan Mr Dieter deposed that he was expecting Ms Walker to come for their usual supervision session however she sent him an e-mail saying it would not be appropriate. 146 When he next saw her at the Centre he asked what it was all about and why she was not seeing him for supervision. She responded with words to the effect of " you know, after what happened". Mr Dieter told her that it had nothing to do with the two of them, that he didn't have a problem with her and that this had to do with bureaucracy. She told him she had been advised not to speak to him any more. 147 Mr Dieter confirmed that during his conversation with Ms Walker he said "I will contact the Registration Board because you have breached ethics in breaching clients' confidentiality". He denied that it was a threat. It was said to inform her that he would have to contact the Board. He considered it his duty that if two psychologists disagree you try to sort it out before you take it any further and therefore he considered it was his duty to tell her that this was what he had to do. He said that she agreed with that. 148 He had since contacted the Registration Board but without using her name, because he wanted to find out if it was a breach. Whilst he thought it was he didn't know whether that was the case which was why he contacted the Board. He also thought the Department as a whole had breached confidentiality on a couple of occasions. He had not heard back from the Board but had only contacted them 6 to 8 weeks ago (as from the date of Mr Dieter giving evidence on 14 November 2006). 149 He denied that he intended to threaten Ms Walker he had nothing to gain from threatening her. It was a "collegial gesture" so it didn't hit her from behind. He never had any problem with her and still didn't have a problem. 150 Ms Walker generally confirmed that she had a conversation with Mr Dieter about his supervision and explained to him that it was on the "advisement of her clinical supervisor and supported by her administrative supervisor. She could not recall his response to that. 151 She recalled that at one stage he stated to her that he would be taking up her level of confidentiality and how she was dealing with things to the Registration Board in terms of her professional conduct. She found that "quite anxiety provoking as it would be for any professional when their professional credibility is questioned." 152 She could recall him making some reference along the lines of "I hope you've got notes" or I hope you've got documentation about who told you to do this. She did not know what his motivation was for raising the issue of documentation. She agreed it could have been a "tip off" but said that given the level of anxiety she felt, "it felt more threatening than anything else". 153 She had not been contacted by the Registration Board. 154 The 22 June 2006 memorandum that Ms Walker sent to Mr Houston concerning the resolution of Mr Dieter's missing NCNs contained the following: "In relation to the lack of Normal Case Notes to accompany Specialist Case Notes, this has been discussed with Mr Doug Buchanan (A/Regional Director, Hunter/Central Coast) and Mr Steve Wilson (Centre Manager, Baxter JJC). It was agreed that generating the Normal case notes at this stage is unlikely to provide any benefit. In turn, referral is to be made to myself if any relevant information was required from these notes. Also, both Mr McCann and Mr Wilson were made aware that any specialist staff member could access these notes; therefore clinical treatment should not be hampered by the lack of normal case notes." 155 Mr Dieter deposed that the reference Ms Walker made in the memorandum to the fact that both Mr Buchanan and Mr Wilson agreed that the addition of these NCNs would not provide any benefit was "exactly the point this whole issue is about". 156 Ms Walker indicated on the issue of case notes being used to record running notes on the progress of the client that to the extent that it was useful to have a running note written 6, 9 or 12 months after the event, that it was useless. It would be useful for some sort of long-term analysis but you really needed them at the time to actually do the case management. Inappropriate Comments in Case Notes 157 Ms Walker deposed that when Mr Dieter was seen for supervision on 12 September 2005, the issue of the content of his SCCNs was raised. In that session she noted his ability to complete appropriate SCCNs and compared them with comments which she considered to be sarcastic or judgemental. Mr Dieter asserted that they were his opinions and he would not change them, regardless of the reflection on him. She said that thereafter he continued to make such sarcastic remarks in some of his SCCNs. 158 Ms Walker's Clinical Supervision notes for that session (Exhibit 10 - Annexure G, Attachment 6) noted that she provided Mr Dieter with samples of his case notes "done particularly well clearly identifying issues and treatment within a clinical framework and presentation of facts, process and clinical judgment (with examples noted)". She also provided samples that could be interpreted as "sarcastic or judgemental" and went on to note:- � Raised with George that he is an excellent practitioner and very experienced, however, that such documentation would not reflect this and could even work against him � George asserted that he stood by his notes as thought out factual accounts and opinion � George was in agreement that this be discussed further with the ADPSS 159 Ms Walker confirmed that Mr Dieter had told her during the session that the comments were his opinions and he would not change them. That was what she understood and was also reflected in the supervision note which she drafted. 160 Mr Dieter deposed that in the session he pointed out to Ms Walker that on several case notes her interpretation was incorrect and not in accordance with what was written, which was "a reflection and account of the session with the client." He further told her that the words "sarcastic" and "judgemental" were her personal interpretations but that was not what he expressed nor his intention. 161 Ms Walker said she read every SCCN that Mr Dieter sent through to her. 162 Ms Walker also indicated that she did not speak with Mr Dieter between 12 September and 9 January (when she sent her memo to Mr Buchanan) about the comments in his case notes. No one had subsequently spoken to her about the comments or about either of the two memos after 12 January 2006. 163 Mr Dieter was taken to the specific case notes that had been attached to Ms Walker's memorandum of 9 January 2006 (Exhibit 3 - Annexure B - Attachments 1, 2, 3 and 4, but not 5 ) which contained comments that were considered inappropriate and underlined as set out below (note: only the disputed comments have been reproduced and they are obviously not set in the context of the whole case note) :- Attachment 1 Also, I have been told there is a 'case plan' or "behavour mangement'(sic) plan attached to J's file in the unit, encouraging to give J 'whatever he wants'. This is not with my blessing, and if I (sic) should carry my signature, I withdraw my support for this herewith and want to know who faked it. Attachment 2 Nexus has helped J to the degree that he was drugged to the eyeballs, and hence incapable, physically to act on anything else than eating impulse. Attachment 3 C responded to this (challenging) thought with a bowed head and afterwards was more inclined to accept N coming here, althugh (sic) he did not want him 'near me'. That's fair enough. But knowing our system, this is a key predictor for it to actually occur. Call it experience) Attachment 4 (G) seems fairly settled, despite an incident last week. However, it appears this was more the result of 'excellent youth work' than reason for concern, although eventually I will have to address his level of ability to take control over his actions. 164 Mr Dieter generally denied that any of the comments were sarcastic or critical or, in the case of Attachment 3, contemptuous of the system and the way the system was administered. He generally regarded the statements as factual. 165 He also pointed out that Ms Walker had not raised any of those case notes with him. (They all post dated the supervision session of 12 September 2006). 166 Mr Dieter was also taken to the further case notes that Ms Walker had identified as containing inappropriate comments and were attached to her 12 January 2006 memorandum to Mr Buchanan (Exhibit 10 - Annexure H at pages 29 - 31). 167 Case note - Page 29 (re issue of overnight leave.) This is of course debatable, as Mum always has first right (when no other circumstances intervene) and the DG would have a very difficult time explaining any decision to the contrary. In any case I believe this is all based on a misunderstanding and bureaucracy has since taken over again. As a result a variance is now sought from the DG, so that A can toataaly (sic) and utterly legally go or o/n leave with his mother. � Mr Dieter did not see the words used as being critical of the Director General and the bureaucracy. To him they were just a statement. He did not agree that it was a "gratuitous swipe" at the Director General and the bureaucracy. The reason was inform anybody who reads it after him when he deals with the boy to know what the issues were and why the boy may have responded the way he does. Why he might have been frustrated. � He accepted that he had interposed what appeared to be his personal view on the matter and that as a psychologist it was not for him to place personal views in files. The Director General had pointed out that he had not put that in inverted commas and he accepted that from that point on. � He essentially went on to say that the way it was read was not necessarily the way it was intended. 168 Case note - Page 30 (re issue of complaint about not enough food) I asked M if he trusted Max (a-U/M) and suggested he'd tell him, just as matter of information, so if there is an incident, be it with M or another boy, management is ware (sic) of what is going on, and that staff may - possibly even on purpose - bring it upon themselves to get assaulted. We looked realistically at all options and concluded there is precious little he can do with an expectation of getting any joy. The Ombudsman is about as useful as the proverbials on a bull , however, it may in the future benefit someone else is there are enough complaints re the same issues, something might be done eventually. So if M is happy with that, and does not expect any result to his benefit, I suggested he may go through the motions. � Mr Dieter said that in the first paragraph what was underlined was what the boy had alleged and he suggested to him that he should speak to the Unit Manager and tell him. He usually took what the boys said at face value. He wasn't confident enough to put that on a case note to Mr Wilson because it was a serious allegation which might put some slur on people which might be right, might be wrong so he made the suggestion to the boy concerning raising it the Unit Manager that he trusted so it was on record if something went wrong. He agreed that that was an issue that could well ferment discontent amongst the staff or the detainees. He did subsequently raise the issue of the food with management as a formal issue by sending a confidential case note to Mr Wilson. � He agreed in relation to paragraph 2, that the words underlined were his words but they were not necessarily in the conversation because the boy had taken up other issues and had not got satisfaction from this. So he suggested that in future it might still benefit him to put it on record even though he might have had other experiences in the past. 169 Case note - Page 31 (re detainee wanting re-location) Once sentencing has occurred, this hopefully will also take place and sea can be sent to where he is closer to his family, in accordance with law and departmental policy. But that's another story. Until then he will remain where we are pleased to put him. Never understood what 'At her Majesty's Pleasure' meant or referred to. Now I do. � When asked if this was just a criticism of the system Mr Dieter said it would be "justifiably so" because as it turned out later on it was "a gross misjudgement by the Department of their decision. They based their decision on a wrongful, not interpretation, but application of the policies and procedures but in that case it was I guess a non-technical way of yes of something that occurred to me at the time Her Majesty's Pleasure means and that is to put them wherever they like to put them." � The Commission raised with Mr Dieter "why say that and that surely the report should finish after "in accordance with law and departmental policy" and queried why he went on to say the next part and its relevance, as it was pure personal comment. � Mr Dieter agreed that it "probably is". What he was struggling with was that any case note that you put on you could change to what somebody would say in a different way. He couldn't see that this would be particularly offensive or critical. It was a play on words. He had never understood what Her Majesty's Pleasure meant and now he did. � He also indicated that if Ms Walker had brought that particular comment to his attention he would not have had any problem with that and he would have agreed to take it out but that was not her example. 170 He agreed that using his SCCNs as a forum to criticise the Department to all who might read the case note later on was not the appropriate forum. 171 He did not agree that the comments showed that he had "philosophical differences" with the Department. 172 He also pointed out that he was not aware of the second lot of case notes that Ms Walker had forwarded to Mr Buchanan until the interview of 21 March when they were raised by Ms Mason. 173 Ms Walker indicated that NCNs were seen by front-line workers and SCCNs were seen by any councillor, psychologist and Specialist Services Co-ordinator. The client had a complete entitlement to see NCNs and SCCNs. She confirmed that the client would be entitled to see the case notes attached to her 12 January memorandum. 174 She did not consider that it was useful for the client's treatment or management or clinical management to include those sorts of comments in a case note. She wouldn't make those notes. In her professional opinion as a psychologist she did not think it was professional. 175 She agreed that she worked in a security type environment and that insofar as the staff were concerned, the extent to which that sort of comment might have an effect on a juvenile's respect for those staff charged with his care and security, that is the staff in the units, that it would "validate their sense of injustice in relation to their management." When that sort of "splitting" occurred it became much harder to manage the client. Security Issues (the radio incident) 176 Mr Garry Byrnes is the Co-ordinator Operations, at the Centre. He indicated in evidence that the Operation Centre was set out like a "fishbowl sort of situation" and he could see up to three quarters of the Centre including all the school buildings, where the clinic was, out the front of recreation and least five units. They also had cameras as well. In his role as Co-ordinator, he was there to observe all movements to and from point A to point B and back. Everybody must seek clearance. 177 Mr Byrnes deposed (Exhibit 5) as to an incident which had occurred on his shift on 24 February 2006 at 12.45 p.m. when he observed Mr Dieter escorting a detainee to a unit without a radio and without Operations knowledge of this movement happening. He later completed a Staff Report with respect to the incident (Annexure A). 178 The Report outlined that he had subsequently (at 13.40 p.m.) asked Mr Dieter to read a memo dated 23 February 2006 and sent to all CST staff from Assistant Manager Ana-Marija Ciko (Exhibit 6) which set out operational procedures regarding escorting the boys. Three steps were detailed - confirming with Operations an ability to move from the present location to another prior to taking a boy; informing Operations on arrival at the destination with the boy and confirming handover if that had been done. 179 The memo also indicated that staff were required to keep a radio on in their offices and should they require any training in handling radios or on in the operational procedures to let Ms Ciko know so that it could be organised and further that 4 radios were to be provided making a total of 6, to enable staff to escort boys to and from the units. 180 Mr Byrnes reported that on reading the memo Mr Dieter stated "so" and Mr Byrnes then try to explain to him the necessity of the importance to adhere to this procedure due to OH&S as well as his own well-being and others. Mr Dieter stated "he was not uncomfortable walking with the detainees". Mr Byrnes told him it was a directive from Ms Ciko and Mr Wilson. The Report then noted "George, then, in an unprofessional manner started to raise his voice at myself in the operations centre making the comment, "their (sic) is not enough people in the centre to stop me from doing what I do or what I want to do and I don't care who they are!". (Bold type used by Mr Byrnes in his report) Mr Byrnes told Mr Dieter not to raise his voice at him and that if he did not have a radio with him he would not be allowed to move a detainee from one location to another as per the e-mail. This was also witnessed and overheard by YO G Hall who was performing the Monitor's position at the time. Mr Byrnes reported that Mr Dieter was "uncooperative, belligerent and unresponsive in his matter in his manner in regards to my request in this matter." 181 Mr Byrnes agreed that before Mr Dieter said those words he had told him that "the next time I see you I won't open the door". 182 Mr Byrnes said the purpose of the operational procedures was that there could be an incident occurring at any given time. Anything could happen at the blink of an eye. The boys had issues with each other etc. If there were movements happening if there is one detainee he would hold one person back while the movement crossed to prevent an issue. It was a bit like a traffic control situation. He told people to slow down and keep their distance and if they were getting too close. They were generally moving 15 boys per unit at a time and they tried to keep a distance from each one to make sure that no "trains smashes" occurred. 183 There had been an incident in January preceding the issue of this instruction which had tightened things up considerably. They had had a serious staff assault where two boys had run off from a movement, gone behind the Unit and a staff member was assaulted by both of the detainees. There was a whole restructure within the Centre in regards to how they did movements and everything was to be strictly adhered to. Everything was be slowed down to their pace. 184 Mr Byrnes also denied that Mr Dieter did not have access to a radio. There were a couple which staff were able to share and there were also spare radios in Operations if anyone needed one on shift. He also denied that Mr Dieter told him he didn't have a radio. He agreed Mr Dieter said he didn't always have access but Mr Byrnes told him that they had spare radios and he could borrow one. Mr Dieter didn't want to borrow one. His response was a "very terse and yelling manner" and when Mr Byrnes said it was a directive from Ana-Marija "that was when he exploded". 185 Mr Dieter did not recall raising his voice to Mr Byrnes. Mr Dieter's recollection of the conversation was: I said, "so?" I remember that, because you know he showed me something, but the fact was that I didn't have a radio and I said that to him. I said, "well, so what if I don't have a radio?" And he said, "you've got radios over there " and I said, "but what if they're taken, we're six there's only two radios" and he says, "Ah well, it you know you've got radios" and it sort of carried on from there I guess. I really don't know whatever lead to my statement and I said, "there is not enough people in the centre to stop me from doing what I doing or what I think is right" or something to that effect, doing my job or something to the effect. But I certainly did not say that I do whatever I like and nobody can stop me, that's absolutely not correct. 186 Mr Dieter also denied he approached Mr Byrnes in an unprofessional manner. That was Mr Byrnes's perception and he couldn't help what he thought. If he raised his voice he would only have done that in response to Mr Byrnes raising his voice. 187 Mr Dieter said that he thought the memo in question was just saying that they had to carry a radio. If there was a need for operations to be contacted before he moved a detainee he thought that was "questionable". If it was an operations procedure, that was the way it was and he accepted that. 188 Mr Dieter confirmed that he was subsequently spoken to about the incident by Ms Ciko and shown the Report some two weeks later. He didn't take it seriously because it came out of the blue. He went back to the office and realised that Mr Byrnes had taken it seriously enough to put it on paper so he took it seriously enough to respond to it and sent Ms Ciko an e-mail that day responding to the individual points and agreeing with most of them but denying he ever made the statement contained in it. He also asked that the two witnesses be heard and for the issue to be clarified and dealt with. It wasn't dealt with after that. 189 Mr Byrnes had generated the report on his computer, printed it off, placed it in an envelope and put it in the Manager, Mr Reberger's pigeonhole around in management. No one else would see the document. As far as he was aware, the report was taken up by management as Ms Ciko later came around and spoke to him to clarify what had happened. 190 The report form in question was a generic form actually used for reports by staff about detainees. If they needed to put in a report that was what they used. The reference in the form to "serious misbehaviour" was to be used in relation to a detainee. Because he wasn't talking about a boy, but staff, he put on the form that it was an "OH&S Safety and Security breach of Centre policies and procedures." 191 There were number of questions of Mr Byrnes as to the actual report document he had generated from his computer for these proceedings (as annexed to Exhibit 5) and the reason for an alteration made to a date on the original report. The original, which had gone to management, was not available on that day of the hearing. The original was subsequently located and tendered at commencement of proceedings on 24 November 2006 (Exhibit 8). It confirmed what had originally been on Mr Byrnes computer in February 2006. 192 Mr Byrnes denied that he had removed a reference in the report to the fact that there were two witnesses to the incident. Whilst there were other people in Operations at the time, he had specifically turned to Mr Hall and asked "did you hear that?" 193 He did not know whether Mr Dieter was counselled or terminated about the issue. He considered that anybody who did not follow procedures and policies for the safety and well-being of everybody at the Centre was a security risk and in his personal opinion they should not be working in that environment. They should be well unaware of the environment they were working in and the type of clients they had. They did not have kids in there for stealing lollies, they were quite serious crimes. 194 He made sure when people went outside, it didn't matter who they were, they had their radio because once they went through door 14 , at any given time they could be walking into a life or death situation. He took his role quite seriously. 195 Following that incident he pulled Mr Dieter up a couple of times. There were also occasions when he turned Mr Dieter back to collect a radio. He did not write any subsequent reports because he couldn't write reports "on every little thing". He is made sure that when people went outside, it didn't matter who they were, they had their radio because once they went through Door 14, at any given time they would be "walking into a life or death situation". He talked his role quite seriously. 196 Mr Gary Hall, a Youth Officer at the Centre, had been monitoring in the Operations Centre when the exchange took place between Mr Byrnes and Mr Dieter. He deposed (Exhibit 9) that whilst he could not remember the date on which the conversation took place, to the best of his recollection it occurred around the lunch break (the timeframe as detailed by Mr Byrnes). Whilst it was usually his practice to report matters in his diary he did not know whether he made a diary entry about this conversation because he had not been able to locate his diary for the year ending June 2006. He also did not make a report with respect to the conversation. 197 He deposed that he was seated about 4 to 5 feet from where Mr Byrnes was standing and that Mr Dieter and Mr Byrnes were standing within about a foot of each other and speaking with raised voices. The voices were elevated - it wasn't personal, it was business like. He was unable to remember all of what they said without the benefit of a diary entry however he did remember that the conversation was about Mr Dieter not having his two-way radio and his keys with him. He remembered that during the course of the conversation Mr Byrnes said words to the effect of "we have procedures here and every staff member has to follow them including the Centre Manager. The policy is no one goes past that door without a radio and keys." 198 Mr Hall also remembered that Mr Dieter responded to that statement by saying words to the effect of "you don't have enough people here to stop me doing what I want to do." 199 He said the conversation took about 4 to 5 minutes. He couldn't recall any other parts of the conversation, just what he had written in his statement. At the time he was focussing on what was out there beyond the glass and also he had five monitors he was monitoring for movements. When he heard the raised voices he turned around briefly to see who it was and turned back again. His position was such that he couldn't see whether Mr Byrnes was holding a piece of paper and showing it to Mr Dieter. 200 He specifically recalled what he had written in his affidavit because his knowledge and understanding of that was that no one could go through door 14 without a radio and keys. He was acutely aware of people trying to access that area, when he was in Operations, without that equipment and that was one thing that had stuck in his mind because no one he was aware of could go through there without that equipment. 201 Mr Hall was never in control of letting a person in or out of door 14. He was an assistant. They had a Unit Coordinator, Mr Byrnes. Mr Hall was a Youth Officer and monitoring was not his only job nor his permanent job. He also escorted the boys around the Centre to wherever they had to go. 202 What he heard that day didn't lead him to come to any heightened security concern about Mr Dieter no more than it was at that point of time where he was acutely aware of people walking around without radios. Very few if any people accessed the area without a radio either now or in February 2006 because it was a policy and procedure by the Department which was followed by all of them working in that area. He did not take any particular security precautions in relation to Mr Dieter after 24 February because he was not a permanent monitor person. 203 Mr Dieter acknowledged that a new system had been introduced whereby access to the CST area where he worked was operated electronically and in order to gain either access or egress from that area you needed to use your two-way radio to ask the officer located in the Centre to activate the door. 204 Mr Dieter denied that he was one of the people that agitated for the introduction of the two-way radios which he thought had occurred in April/May (2006). He thought they were a danger because they put the counselling staff visually at the same level as a Youth Officer which meant they didn't have the protection of their position any more. He voiced his concern about the two-way and it was then that he was instructed in writing by Mr Wilson, that he had to wear it, and he wore the radio. He wrote of his concerns about the two-way radios to Mr Houston. 205 He denied that he refused to follow the instruction to carry a two-way radio. When he was given the instruction he carried the radio. If he didn't always carry the radio that was consistent with the fact that they only had two radios until April/May. 206 He denied that there was an occasion when Mr Wilson found him in one of the units not carrying the radio visibly, like other staff, and with it turned off. Mr Dieter maintained that he had it in his front pocket because they didn't have belts for the radios at the time. 207 Mr Byrnes also confirmed a second Staff Report he submitted in May 2006 concerning CST staff, including Mr Dieter, not wearing radios during that week (Exhibit 7). Mr Dieter and another staff member had had not worn their issued radios all week. He denied that he had "allowed" this to happen. He had reported it to Mr Wilson and been requested by him to "pull back" assess and observe and submit a report at the end of the week of his shifts. This was because "George was getting a bit hoity toity in regards to me pulling him up on things and so it didn't become a George and I situation" Mr Byrnes had no problem with the other Psychologist mentioned. 208 Mr Dieter was not aware of this report or the period in question referred to in the report. Procedures 209 Mr Houston's affidavit evidence (Exhibit 10) detailed the relevant documentation generated in relation to the issues concerning Mr Dieter and that essentially corresponded to and was the basis of the Background and Chronology set out above. 210 Mr Dieter deposed that he had never been advised, counselled or warned of sacking nor given the benefit of an impartial interview to fully provide his version of events prior to any opinion having been formed by the decision maker. The first that he was aware of the possibility of being dismissed was when he received Ms Mason's letter of 21 March 2006. 211 Mr Houston indicated that where a matter came to the Employment Relations and Professional Conduct Unit, there would be times when there would be no need to process the matter as a disciplinary matter. If there was a need to process the matter as a disciplinary matter the usual practice was to appoint an investigator to carry out an investigation. After that investigation report was received it was considered by one of the officers of the Unit and by Mr Houston and a recommendation would go to the Director-General as to whether any action should be taken. 212 In the matter concerning Mr Dieter, Mr Houston said that this was one of the exceptions that occurred from time to time. Allegations were received. They contained admissions by the person the subject of the potential allegations. What normally happened was that if there were admissions they simply went to the "show cause" stage of the process and that was what happened in Mr Dieter's case. 213 The letter that was sent to Mr Dieter on 21 March by Ms Mason was essentially a form letter provided for by the guidelines concerning disciplinary matters under s.46 (1)A of the Public Sector Employment and Management Act 214 Mr Houston also detailed the procedure that would be followed where an investigation was held as part of the overall disciplinary process. In which case an investigator would be appointed, an investigation undertaken, a report produced, findings and recommendations made and a "show cause" letter may or may not result depending on the outcome of the investigation and consideration of any findings made. 215 In Mr Dieter's case the admissions made were contained in his memos of 10 October concerning the Key Watcher and Mr Wilson's memo of 11 October. In terms of the case notes it was the e-mails between Mr Dieter and Ms Walker where he was asked to complete the case notes and he just said no or he was not going to do it. There were also other materials that were sent in from Mr Muir. The view was taken that they were admissions and the Director-General decided to go straight to "show cause". 216 Mr Houston indicated that his Unit's role was to be a central point for the receipt of complaints and recommendations for disciplinary action and that in effect it was "a funnel" for disciplinary action. Mr Houston was "a facilitator" in terms of keeping the disciplinary process happening or stopping it. He agreed that he also made recommendations to the Director-General about whether or not prima facie there was misconduct and a need to write a "show cause" letter. 217 Mr Houston confirmed that there were three matters that came to his Unit for consideration in relation to Mr Dieter, the keys and the three issues that Miss Walker raised in her 9 January memo. The issues of what occurred in terms of case notes and inappropriate documentation were subsumed and became part of the overall consideration of the two broad allegations put to Mr Dieter. Mr Houston's understanding was that the first two issues in the memo, (inappropriate documentation), were integral to what had occurred in the Director-General's mind. 218 There was a "confluence" of two issues, breaches of security involved in terms of the keys and a senior and professional person flatly refusing to obey lawful and reasonable directions in terms of the case notes which were part and parcel of that person's job and a key responsibility of the position. The issue of the keys would have been pursued separately or standing alone. 219 Mr Houston confirmed that there was no other documentation to do with the keys issue between October (2005) and March(2006). It was Mr Wilson that made a recommendation to the Acting Regional Director and the process was that the Acting Regional Director then forwarded all materials to Mr Houston's Unit and consideration then occurred about what the next step would be. 220 The record of interview of 21 April 2004 (Exhibit 4) indicates the very extensive and lengthy explanations and responses made by Mr Dieter to the two allegations contained in Ms Mason's letter and also his responses to the issue of what disciplinary penalty should be considered. He also raised a number of issues in the course of his responses. The interview record is some 29 pages long and was of an hour's duration. 221 The essence of what Mr Dieter said during the course of the interview can be summarised as follows: The Keys - he explained the events of 6 to 10 October both as to what happened with the keys and the reason for the two conflicting reports of 10 October, the Key Watcher was faulty, if the system didn't work it wasn't his fault, there was nothing to say what to do with them, he had always taken them home before without anything being said, he had done this up to 3 days before, it wasn't a decision he made but what he normally did, he wanted to leave but couldn't, the system failed, he could just as well charge the Department for unlawful detention, he only remembered when Mr Wilson told him to go and look at home, to be accused of unprofessional conduct was "disgraceful", it wasn't true he was telling "fibs", one version was a lie but just stick with the facts. The Case Notes - it was not a reasonable request, they were a doubling up, it was silly, it was obvious from the specialist case note he had seen the boy, he had an issue with that, it was absolute stupidity, it didn't contribute to the working of the centre or the care of the kids, no-one could force him to do something unreasonable, that was stupid, it didn't say anything beyond he saw the boy, what was that supposed to mean, he asked what they wanted him to put in , he was told "I want you to say I've seen the boy", he'd done that for months, he didn't have time for this, this was a side issue, it was a refusal but he believed it was a lawful refusal because it was an unreasonable request. Inappropriate comments - they were not offensive, he generally considered he'd used colloquialisms, it was not unprofessional, it was not misconduct. the Department should concentrate on its core business, it was an insult. Appropriate punishment - he should not even be here, this was an abuse of the system, if it was an issue he'd be the first one to resign, if you'd read his first letter he was actually inviting them to sack him then they could really have an issue, make it worthwhile, change something along the way, punish him as much as a warning is enough for him that he won't accept. 222 In cross examination Mr Dieter was taken some in detail through Exhibit 4 and the explanations and responses he gave. 223 Mr Dieter indicated that when he went to the interview he still thought that it was part of the fact-finding mission that Ms Mason had been told something and she now wanted to know what the facts were and basically wanted to hear his side of the story. Mr Houston then informed me that in fact that was not the case and that he had already been found guilty and the only reason that he was there was to plead his case and plead for mercy and plead for his job, and he said words to that effect. From that point on he knew that this was considered a rather serious matter from the Department's point of view or treated as one. He wasn't sure if it was actually considered as one but was certainly made out to be. 224 He agreed that he indicated that he thought the whole disciplinary process with respect to what had happened the Keys was "disgraceful" on the part of the Department. Whilst he wasn't sure now that "disgraceful" was the appropriate word he agreed that he thought the whole thing was a "beat up". 225 When Ms Mason raised the issue of the truthfulness of his account of what had happened with the keys, that hadn't been mentioned before at all. The fact that she didn't believe him and he had no way of proving it differently was the reason he told her to believe what she wanted to believe and that it didn't really matter and said "it doesn't matter, okay, I lied, whatever you want to believe I can't convince you". He did not consider that what the Director-General thought of his honesty was unimportant, he was taken aback when she said that and that led him to making the responses that he did. 226 Mr Dieter agreed that did not think that that what the Department did was proper. He thought it should have been handled totally differently. The policy said you are entitled to be heard before a decision about your guilt is made and in this case it didn't happen. By the time he got there he was already found guilty which meant there was a perception of guilt even if their minds were open. That obviously lead to a totally different view and expression of views. The way he would have preferred this to happen is that somebody would have said "say, what's happening down there?" and "sort this out", end of story. 227 He did not consider that he had caused all the problem or that he was uncooperative with respect to Ms Walker's request to him. It was the first time that this had been levelled at him. For the last 10 or 11 years there had been no complaints about his cooperation, none had been raised to date 228 On the issue of the case notes he maintained that Ms Walker raised it on a totally different level than they were talking about (being a disciplinary level or an instruction level) she raised it in a supervisory role. 229 He denied that generally his responses to Ms Mason showed that his attitude was contemptuous of the whole disciplinary process. 230 Mr Dieter agreed that he had expressed his view about his superiors as set out in the minutes when he said "this is absolute stupidity and its stupidity only because up here somebody cannot decide on how we're going to do this so they have to find a compromise on my time". That was certainly his opinion. He agreed that Mr Troth, the Assistant Director PSS had told him that he knew he had an issue with this and to just put in that he'd seen the client. He did that for more than a year and then stopped. He said Mr Troth agreed that was it was superfluous but he said just do it for the time being and it's going to be addressed at the operations meeting. The minutes would show that this issue was repeatedly raised. The feedback actually was that this was a silly issue and should be addressed between Mr Allerton and Mr Muir. 231 He had never disputed that there was a good reason to have case notes if that was the only way they could organise themselves. What he disputed was that it was a useful case note to put in that he'd seen the boy given the way the computer works because the information was already there. It was stupid, it was a waste of time and a waste of money. His view hadn't changed because the circumstances hadn't changed. Ms Walker, Mr Wilson and Mr Buchanan agreed it was superfluous. 232 He acknowledged that the Director-General and the Assistant Director-General made the rules and not himself or Ms Walker or the Regional Director. 233 He also acknowledged in relation to SCCNs that there were certainly some instances that did not contribute to the case management of the boy and he accepted that was superfluous. He would he would certainly now look at his case notes in a different way when he was putting them down. Remedy Sought 234 Mr Dieter sought reinstatement. He deposed that had not been able to find alternative employment. Due to his age of 55 years and the nature of his profession, which was counselling juvenile detainees, there was no likelihood of being able to find a similar position in New South Wales. 235 Mr Dieter deposed that the allegations of misconduct were not conceded. In any case even if they were proven he contended that they would not constitute an offence for which termination of employment could be could considered a reasonable consequence. He did not consider that he committed any dismissible offences but that he brought serious concerns to the attention of management. 236 He had been employed as a psychologist and had no complaints against him or his work in the last 10 years. Even the current allegations did not touch on his ability to work effectively as a psychologist. If anything he had had positive feedback from his supervisors on every level. He annexed to his affidavit (Exhibit 1 - Annexure F) a previous audit of his files by his then supervisor, Miss April Karlin, which did not identify any of the issues now raised. He deposed that, accordingly, his file entries were apparently acceptable. 237 Ms Walker deposed that Mr Dieter refuses to follow instructions and has philosophical issues with the Department. She was of the opinion that it would not be practical for him to return to his former employment with the Department. 238 In cross-examination, on the issue of reinstatement, the following exchange took place with Mr Dieter: Q. If the Commission reinstates you, do you intend to abide by the policies of the Department in the future? A. Yes. Q. Always? A. Sorry, that is an unanswerable question. Q. Are going to be argumentative about policies as to what they mean and uncooperative? A. You suggest that I'd been argumentative which I haven't. It's not that I insisted on a point when it was decided, no, this is the way it's going to be done. I raised an issue, the conversation you refer that might be referring to I imply with Mrs Walker were not an official conversation or an instruction to change that, it was still on the level that it was supposed to be raised as an issue. Once the instruction comes through as I'd shown with Mr Wilson and with Mr Buchanan, in any other issue of that last 11 years, if I've been told to do something a certain way then I've done it and I intend to do that in the future. Submissions 239 Mr Easton took the Commission to relevant sections of the transcript as to the evidence which supported the submissions made on behalf of the applicant. 240 It was submitted that it was not in dispute that Mr Dieter had been dismissed. Whilst technically he resigned his employment that resignation was given under threat of termination. Mr Dieter was dismissed according to the employer's disciplinary process arising from two matters - the October 2005 keys incident and his refusal to do duplicate case notes in particular circumstances. 241 Whilst there were four matters that started the formal disciplinary process for complaint, only two of those became the subject of a disciplinary process and were the matters for which he was terminated. The two matters that were not pursued in the disciplinary process were the inappropriate comments in case notes and comments in relation to problems with the computer system and losing some entries. 242 It was further submitted that Mr Dieter was summarily dismissed. He was not given any warnings at all about the conduct that brought about his termination. It could also be inferred that the employer formed the view that the matters were so serious that he could not continue in his employment beyond 31 May 2006 (or the date in June when he finished). An inference only could be drawn because Ms Mason didn't give any evidence. 243 The summary dismissal in relation to the keys took place seven and a half months after the event. The summary dismissal in relation to the case notes took place four and a half months after the last occasion that Mr Dieter did not do a duplicate case note. 244 Mr Easton briefly summarised the factual chronology of the keys incident. He submitted that one needed to first look at what the employer did about the keys and about Mr Dieter's actions. From the computer records a key alarm overdue message was generated at 19.07 on 6 October, the day Mr Dieter left. As a result of that the alarm overdue message being generated, as far as was known, nothing happened at all between 6 and 10 October and no one did anything in relation to Mr Dieter's keys. 245 On 10 October Mr Wilson collected all the information that he needed to collect in relation to the incident and wrote a memo on the same day recommending disciplinary action against Mr Dieter. It was submitted that Mr Wilson collected all the information he needed because there was no evidence at all that at any time after 10 October anybody did anything about the security incident. Mr Wilson was in charge of the facility, he evaluated the security risk and took no security precautions at all. That was not a criticism of Mr Wilson but no corrective security measures occurred, Mr Dieter was issued with new keys and went about his daily business. 246 It was submitted that that showed that the incident was not a serious matter at the time and was not regarded as such by Mr Wilson. It was not sufficient for him to take any particular precautions at the Centre or serious enough to warrant the removal of Mr Dieter. However the ultimate conclusion of the employer in May 2006 was that a warning could not be given and his employment would be terminated. 247 The suggestion by the respondent that Mr Dieter could not be trusted with the keys and could not be left in a correctional facility where he was going to be in charge of keys was rejected. It was submitted that it could be inferred, that with full information, Mr Wilson didn't form that view because he allowed Mr Dieter to continue in the Centre unimpeded, there was no change to security arrangements in relation to him and he wasn't compelled to do anything different in relation to the keys. The failure of Mr Wilson to give evidence in proceedings made that inference more readily available. 248 In relation to the keys there was no written policy in terms of their use. The employer seemed to rely on the trite concept of common sense. The common sense the employer relied on was that he should somehow have tracked down another person and given them the keys hoping they would take control of and be accountable for them rather than rely on what he had done for the last three years. It was submitted that in the situation at the time that was not the minimum that Mr Dieter ought to have done. There was no policy to that effect and to say that he had been negligent and his conduct defective because he failed to give the keys to someone else in that situation did not arise and was not an inference that was entitled to be made that he ought to have known what was expected of him. That seemed to be the test to be applied according to the employer's reasoning. 249 When looked at in the light of the seriousness with which the employer took the issue of the missing keys and the key alert, it could be seen that whilst it was unfortunate that the Key Watcher was faulty and keys were stolen, it was not Mr Dieter's fault and his failure to track someone down and give them the keys was not a terminable offence. 250 It had been suggested by the respondent that Mr Dieter's first statement on 10 October was intentionally untrue. Mr Dieter had nothing to gain from making this untruth. There was no expectation at all in his mind that if he lost his keys the consequence was termination. His evidence was that other people had lost their keys and measures had to be taken because of that. If he was deceptively cunning enough, after consciously put the untruth in the first statement, then the second statement was extraordinarily stupid. Clearly Mr Dieter forgot that he had taken the keys away from the Centre on 6 October and it was only when Mr Wilson asked him a particular question that it prompted his memory as to what had actually occurred on that day. 251 At the end of the day the keys were lost and it was submitted that there was no practical difference between Mr Dieter's two statements in relation to the lost keys. In the first statement he spelt out that he didn't have his keys and didn't know where they were. There was no risk to the employer at that point. He then realised where they were and in his second statement said he still didn't know where his keys were, but now knew how they got to be lost. There was no personal gain between each of the two statements. He had had to confess to losing the keys which he did. To suggest that questioned Mr Dieter's honesty was not borne out on the evidence. 252 It could not be said just what Mr Wilson concluded about Mr Dieter's honesty after reading the two statements as he did not present himself for cross examination. Ms Walker's evidence was that at no stage did she question Mr Dieter's integrity. 253 It was further submitted that the enormous delay between the incident in October and doing anything about it was indicative of the lack of seriousness of the event itself. The employer had full information on 10 October. He did nothing about it on the day, in terms of the operations at the centre and did nothing to the rest of 2005 when there was a recommendation that disciplinary action take place. This matter went to Mr Houston's Unit and nothing happened until was aggregated with Ms Walker's later complaint. 254 When looked at in isolation it certainly could not be said to be serious enough to warrant the summary dismissal of Mr Dieter. 255 The second issue for which he was terminated summarily was his refusal to write particular case notes. The evidence indicated the number and category of case notes relevantly completed. The issue wasn't one of a general refusal to do case notes or even a random refusal. The issue came to a discrete class of case notes where there was nothing to say except "I saw the boy". 256 Mr Easton briefly summarised the relevant evidence of Mr Dieter, and that of Ms Walker which confirmed her understanding of the issue Mr Dieter had with completing the particular case notes. 257 It was submitted that Ms Walker reviewed and supervised his professional judgment and she made no criticism of that or the exercise of his professional discretion in what was entered in the different categories of case notes. She conceded there were occasions when there was nothing to put in an NCN and in that situation it was duplication and unnecessary duplication and there was absolutely no value in doing an NCN that said "I saw the boy". 258 Ms Walker gave evidence about the way she identified the NCNs not completed by Mr Dieter. It was submitted that that illustrated the futility of the duplicate case notes because when the system was opened it could be seen that he had done an SCCN and seen the boy. 259 There was no particular requirement as to what must be in a case note. There was a memorandum (not addressed to Mr Dieter) that talked about the things that should be in case notes but they were options and a "should" not a "must". Ms Walker conceded the minimum requirement to satisfy the policy was what Mr Dieter had written "I saw the boy". 260 This issue, and the utility of the process the Department was attempting to enforce, could easily be seen as futile and a duplication. When it was clear in January 2006 that Mr Dieter was not going to do the NCNs in question, Ms Walker did not do them because she said it wasn't her role to do them, and no one spoke to her about getting an NCN on the system. She raised the issue of changing the system with Mr Troth but the process was still being resolved by the Department and awaiting an outcome hence the interim process. 261 It was submitted that the failure to do the duplicate case note was so serious that nobody did anything about it and that was not unlike the keys issue. That was crystallised by Ms Walker's 22 June memo where she reported that no action was required in relation to the case notes because it was agreed that at this stage it was unlikely to provide any benefit, for the various reasons indicated in the evidence as to the passage of time. 262 It was submitted that the inevitable conclusion that could be drawn was that it wasn't a matter that was so serious that justified summary dismissal. The context of the issue about case notes was that the matter was being pursued higher up the line, in terms of management, which Miss Walker knew. 263 Mr Dieter was entitled to think that Ms Walker supported his views about duplication as she indicated she would take it to management and the evidence was that she didn't. Mr Dieter also told her he was going to pursue it further and that was subsequently noted by Ms Walker. That issue hadn't been resolved but nonetheless the disciplinary process started in January. 264 It was also submitted that the issue had to be looked at in the context of there being no other issues or instructions that Mr Dieter was refusing to follow, as confirmed by Ms Walker. There was evidence outlined by Mr Dieter as to his workload at the time and that in his mind he had to make a choice between what was more important, the duplicated NCNs or his clients. 265 The evidence showed that the last case note not completed by Mr Dieter was 10 January 2006. There was no evidence of him subsequently not doing any case notes and no evidence of anyone investigating after 12 January and the second memo to Mr Buchanan. There was no suggestion that anyone else investigated whether or not Mr Dieter was doing case notes after that but four and a half months later he was terminated about that. 266 A very minor issue that had commenced as an incident about case notes, had got massively out of hand, to the point where it escalated to become a philosophical issue, which was a misnomer by any stretch of the imagination. The issue also needed to be looked at in the context of Mr Dieter's reasonable understanding that his manager didn't think it was a useful exercise for him to do them either. She was asking him to do the case notes and he was pursuing the matter further up the chain at the time and was entitled to assume that, even though he was being asked to do it, Ms Walker didn't think there was any utility in them either. This was not a licence to ignore the request but it was the context in which Mr Dieter made his decision. There was a discrete issue about a discrete set of case notes which was an unnecessary duplication with no compromise to Centre security and no compromise to the counselling service provided to the boys. 267 It was also submitted that the disciplinary process was marked by an extraordinary absence of haste. There was extreme concern expressed in relation to the keys in the memo from Mr Wilson but nothing happened about those security concerns and he was not terminated until eight months later in relation to that incident. 268 There were discussions about the case notes in September, and an e-mail exchange and then nothing happened. There were other discussions in January, another e-mail exchange and after that Ms Walker commenced the disciplinary process by writing her complaints to Mr Buchanan and nothing happened again. It was not until March, two and a half months later that Mr Dieter even received his show cause letter and all the while he continued in his employment, he continued to have keys to the Centre and he continued to work with Ms Walker. It was extraordinary that at the end of the whole process he couldn't be warned. 269 It was submitted that the third and fourth allegations made by Ms Walker in her memo, in relation to the comments in the case notes and comments about the lost notes in CIMs, were irrelevant to the question of the dismissal of Mr Dieter. They were matters that the Department was clearly on notice about in January 2006 and made a conscious decision not to rely upon in terms of the disciplinary process. 270 The inappropriate comments were raised once by Ms Walker in September 2005 but she didn't say they were unacceptable and he must cease them. She said she knew he was a professional counsellor and this was her summary and that some would view those as being sarcastic. That was the extent to which Mr Dieter knew of any concerns about those comments. The next thing that happened was that in the show cause meeting in April the matter was raised by Ms Mason. It was submitted that Mr Houston stopped the discussion and attempted to get the discussion back to the two allegations (being the NCNs and the security issue) but that it was ventilated to some degree in the interview. 271 Following the interview, Mr Dieter immediately wrote a letter raising the reference to what was termed his "colourful language" and indicated that he believed this aspect was not part of the current allegations/finding and expressed concern over the issue being raised formally and in the context of the meeting. Again nothing happened, Mr Dieter was not called in about that, there was no reopening of the formal process and eventually he just received his letter saying they had decided, based on the allegations, that he was terminated. 272 There was cross examination about the comments in the case notes and they are relied on by the employer on the issue of reinstatement however the employer was not entitled to rely on those comments now when it was clearly on notice about them before it made the decision to terminate Mr Dieter and chose not to do anything about them. 273 On the issue of reinstatement the employer was on notice of these matters by 12 January when Ms Walker wrote her complaints. To say that the Commission should take notice of those comments in the context of that being relevant to the practicability of reinstatement was firstly, evidence of the unfairness of that evidence, but secondly, should be rejected, as even from January onwards, with full knowledge of these comments, the Department let Mr Dieter continue in employment and let him continue writing case notes dealing with the boys. 274 Ms Mason did not give evidence in the proceedings so it could not be known why she decided to terminate Mr Dieter's employment. Mr Houston clearly had made recommendations, but his recommendation was not in evidence. It could be inferred that Ms Mason's evidence would not be of assistance to the respondent's case. That inference was inescapable. It was submitted that Commission could only infer that, whatever the reasons were and whatever explanation Ms Mason might give for terminating Mr Dieter, it wasn't helpful to the employer's case otherwise we would be hearing from her. 275 It was submitted that the same inference could be drawn in relation to Mr Wilson and any security concerns in relation to the keys issue and the issues in relation to the February incident which was relied upon as a reason to not reinstate Mr Dieter. 276 Mr Easton took the Commission to the provisions of s. 88 and the criteria to be considered as to whether or not a dismissal is unfair for the purposes of Part 6 as they applied to the circumstance of this matter. He submitted it could not be said that the basis for termination had been made out when the employer did nothing once it knew that Mr Dieter's keys were lost. If it was a matter that brought his honesty or responsibility into question they did nothing about it. That was not going to be the basis for a proper dismissal. There was no warning of unsatisfactory performance given before the dismissal and in this situation it clearly made the dismissal unfair. 277 It was submitted that the termination was harsh and that the punishment did not fit the matters for which Mr Dieter was terminated. It was clearly a difficult situation in terms of needing to resolve the case notes issue but termination was not appropriate or reasonable or necessary. After 11 years employment and considering Mr Dieter's age it was harsh. 278 If Mr Dieter had been put on notice of the fact that if he did not do the case note he would be dismissed, if that had actually been put to him, then the only conclusion that is reasonably open for the Commission to draw, is that he would have done it or he would have, in the full knowledge of the consequences, refused to do it. It could not be said in this case that Mr Dieter did not do the case notes in the full knowledge of the consequences for his employment. There could be no doubt that the e-mail exchanges between Mr Dieter and Ms Walker (and described by her as "informal") did not constitute a clear and unambiguous warning to him that if he didn't do his case notes, his employment of 11 years was at jeopardy. 279 Reinstatement was practicable in this case. Mr Dieter had been there for a very long time. The matters that were raised by the employer to show that reinstatement was not practicable ought to be disregarded on the basis that it was clear that Mr Dieter could return to the workplace. He had indicated in his evidence he would follow the case notes process. If the process of the duplicate case notes still applied, he will follow it. 280 The evidence relied on by the respondent in relation to the issue of reinstatement was ex post facto justification for the termination because all the matters were reasonably known. 281 In terms of the relationship between Mr Dieter and Ms Walker, there was clearly only one issue between, them the discrete class of duplicated case notes. In January, only a few days after she sent her memo to Mr Buchanan, she had a consultation with Mr Dieter and the notes of that consultation (Exhibit 2 - page 11) under the heading of "Discussed George's direction in service provision this year" noted the following: � No change, continue to focus on individual therapy and assessment � Supervision would be better used if focused on subtlety of the themes, and how they may impact on George's work -- agreed on as a focus in contract � Supervision frequency to maintain current pattern 282 Ms Walker's evidence in cross-examination was that she felt a bit uncomfortable over subsequent months but at no point did she request to be taken away from the clinical supervision role of Mr Dieter, it was someone else who suggested that she be taken off that role. 283 It was submitted that in relation to the suggestion of a threat in May 2006 against Ms Walker by Mr Dieter in relation to reporting matters to the board, firstly, that allegation was not made out and secondly, that occurred after she had already been taken off the clinical supervision role and not before, as evidenced by when the discussion took place. It was further submitted that, as Mr Dieter had indicated in evidence, it was a "tipoff" rather than a threat. 284 Mr Easton also dealt with the evidence concerning the incident of 24 February and submitted that it was just a "massive beat up". It was an incident that drew no attention from anybody during the time Mr Dieter was employed and nothing had happened out of this supposed incident. It was disingenuous of Mr Byrnes to suggest that there were some heightened security risk now, because of Mr Dieter, when he conceded he did nothing at all by way of any security measure after the incident to deal with this supposed heightened security risk. 285 It was submitted that what was of more concern was the way Mr Byrnes characterised counsellors walking through parts of the Centre as a matter of "a life and death situation" in relation to the need for a radio for communication, yet in another breath, clearly it wasn't such a matter of life and death as they were content to let Mr Dieter do it for a week and just watch him because of some other purpose or instruction to management. 286 It was submitted that it was not the intention to belittle the importance of security procedures and that people working in correctional facilities had a very tough task, but the Department had been "selectively precious" about some of these matters and had relied on "fairly trite truisms" such as it being important to look after the keys, it being important to make counselling notes, or it was important to follow safety procedures. In its simplest form that was true, but there were degrees to all of those things. The keys were internal keys and with full knowledge of Mr Wilson and others, nothing was done. It was important, of course, to follow security procedures, but there were degrees of risk, such as the risk that the Department bore for up to some time in February 2006, in only having two radios for eight counsellors. 287 It was submitted that in relation to security, that the concessions by Mr Byrnes, that between the 24th of February and May there were occasions when he let him through without a radio and that there were no staff reports provided about any incident of there being any security risk or the like in relation to that practice because he couldn't write staff reports on "every little thing", were most telling. This summed up "the nub" of this case. 288 In relation to the case notes, it was a matter of Mr Dieter's professional judgment and that professional judgment was not in question in these proceedings. 289 Finally it was submitted that there were some "very little things" that Mr Dieter had been terminated for and that was unfair. To suggest he couldn't return to the workplace simply didn't bear out on the evidence. It would be an injustice to allow the Department to have terminated Mr Dieter after 11 years of employment for two matters and for the Commission not to reinstate him because of another two matters that were now being relied upon when those matters were in the knowledge of the employer well before the decision to terminate and in that knowledge the employer allowed Mr Dieter to continue his work for several months. 290 It was submitted that the Commission ought to find that there was relevant unfairness with the appropriate order being reinstatement with back pay, because that was practicable. Alternatively if it was found that reinstatement was not practicable then the compensation ought to be the maximum given his service and the nature of the minor matters. 291 Ms Anderson for the respondent submitted that it was an extraordinary submission to be made on behalf of the applicant that the matters for which he had been dismissed were referred to as extremely minor. It demonstrated loudly and clearly the contempt that the applicant had for any semblance of authority in the Director-General of the Department. 292 It was submitted that Mr Dieter had been untruthful during his evidence in the Commission. It was impossible to know what was in his mind and his motivation for doing things. There were various documents in evidence, including Mr Dieter's statements, and lengthy cross examination of him. His evidence was contested by the respondent, in so far as it was possible to do so. However uncontested evidence or evidence not cross examined could not be automatically accepted. It could be rejected for good reason by the Commission. If the Commission rejected Mr Dieter's claims as to why he had done certain things that would need to be expressly indicated by the Commission in its reasons. 293 The following authorities were cited in support of that submission; Castellano v Inspector General in Bankruptcy, unreported, FD NG625/97, 7 February, 1998 (Butterworths BC980116); Sutherland Shire Council v Dietz [2004] NSWCA53 and Ellis v Wallsend Hospital [1998] 17 NSWLR 553. In Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338, Johnson J., in rejecting evidence as glaringly improbable with respect to reasons for statements made, said at 225: "I observed the plaintiff closely whilst she gave evidence in the present proceedings. Her manner and demeanour in giving evidence along those lines was as unconvincing as the substance of the evidence itself. I am conscious that care must be taken in attaching weight or expressive weight to demeanour in the process of fact finding as a trial judge. In making findings concerning the plaintiff's evidence it is necessary to take into account the probabilities and consistency with other relevant evidence..." His honour then referred to Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA187 at 27 and continued - "In the present case the plaintiff's evidence constitutes an entirely unconvincing attempt to explain away admissions of impropriety made by her on an earlier occasion. The impression of the plaintiff as a witness and her demeanour serves to reinforce the unconvincing nature of the explanations provided by her in evidence." At paragraph 226 he then indicated - "I do not accept the plaintiff's explanation in this regard, her evidence in this respect is glaringly improbable." 294 In this matter the respondent would be asking the Commission to look at the e-mails that Mr Dieter sent to Ms Walker and his interview with the Director-General. It was submitted that when that material was examined the statements he had made in this Commission that he wasn't defying Ms Walker or the Director-General, were clearly shown to be unbelievable. Likewise statements about not remembering what had happened to the keys were just unreliable and untruthful. 295 Ms Anderson rejected the submission made on behalf of the applicant that the evidence of Mr Wilson was not on oath and had not been sworn and that the Commission should draw the inference that he would be of no assistance to the Department's case if he was to be called. It was indicated in proceedings on 24 November 2006 that Mr Wilson would be produced for cross-examination if there was evidence that could be obtained from Mr Wilson that would be useful to the applicant. The respondent's case was not closed at that stage and furthermore the applicant had the opportunity to call evidence in reply. Therefore Jones v Dunkel has no application. 296 In so far as the Director-General was concerned there were important documents in evidence attached to the affidavit of Mr Houston including the Ms Mason's letter of 21 March 2006 and Mr Dieter's 30 March reply to that letter, as well as the minutes of the interview of 21 April 2006 which were tendered separately. Ms Anderson took the Commission in extensive detail through relevant extracts from those documents and in particular Mr Dieter's letter of reply as well as his responses to Ms Mason and Mr Houston during the course of the interview, emphasising that his responses and attitude showed his contempt for Ms Mason, his arrogance, and the lack of respect he has for people in the central administration of the Department. Further it was an indication that he was not the least bit remorseful for his attitude. 297 Ms Anderson submitted that the suggestion that Mr Dieter could go back to the Centre and that he will be co-operative and that he will be trustworthy defied comprehension. 298 The submission made on the part of applicant that no warning was given to Mr Dieter that his conduct might lead to dismissal and that if Mr Dieter had been told he would be dismissed if he did these things, then the Department would have a case, was a proposition that simply could not be sustained. The suggestion that you had to tell a man who had worked for you for 11 years that if you continue to defy an instruction issued by an Assistant Director-General of the Department you will be dismissed, strained incredulity and was just a nonsense. 299 Ms Walker's affidavit evidence indicated the repeated attempts made by her to have him comply with directions, by supervision, through e-mail correspondence and finally discussion, where she told Mr Dieter to complete the case notes and take his issues to Mr Troth or Ms Ciko and that if he continued to refuse she would have no option but to notify the Regional Director of his refusal to follow direction which could lead to the PCU becoming involved and possibly the worst outcome. That could not have been clearer and Mr Dieter's statements in response simply indicated a man who was looking for confrontation. 300 The instruction in Mr Muir's Executive memorandum concerning General case notes ( note: referred to in these proceedings as Normal Case Notes or NCNs) could not be in clearer words than the following- "Must be documented and result in the completion of a case note. Case notes will contain the bulk of detail concerning client interventions. Case notes are written records of intervention whether face-to-face meetings, phone calls, other meetings, group work etc between the author, the young person and other relevant people. Case notes should include the following information." 301 It was not suggested that was necessary, in a General case note, to include all the items of information as detailed in the guidelines that then followed, but certainly some of the categories listed were necessary such as the case note reason and outcome. 302 Ms Anderson dealt with the evidence of Ms Walker and submitted that the impression that would be gained from Ms Walker was that she desperately wanted to avoid conflict, she desperately sought to be a nice person and say nice things if that was at all possible. She was inclined to agree with the possibility that Mr Dieter was an excellent practitioner because that was in her nature, but when asked to what extent she would regard it as being consistent with being an excellent practitioner to make a Normal Case Note, "I've seen the boy", she said it was not. The evidence indicated that she understood Mr Dieter's position was that he felt it was a process of duplication. However she indicated that a Normal Case Note would have the purpose of assisting in casework and to give an indication of how clients were responding to treatment and a skilled professional could do that. 303 It was submitted that it was also clear, from the relevant cross-examination of Mr Dieter, that he still did not except that his refusal to comply with the request from Ms Walker to do the Normal Case Notes was what got him into bother. He also gave inconsistent answers as to whether he did refuse to do the Normal Case Notes indicating that he didn't refuse at one stage and at another that "I wouldn't call it that" but finally admitted that he did not do them, bringing up a lack of time. This was another example of the Mr Dieter being disingenuous and giving inconsistent answers. In addition, to say that he couldn't complete the case notes because of his time constraints and because it was a duplication of something already on the record, was just gilding the lily in the extreme. 304 Contrary to what Mr Dieter's evidence would have the Commission believe, that is that Ms Walker wanted to raise the issue of duplication, in fact the evidence was, that the issue she wanted to raise was the fact that Mr Dieter would not comply with the Assistant Director-General's instruction. Again this was disingenuous on the part of Mr Dieter. She clearly told Mr Dieter she had raised his views with their both of their superiors and made a visit to the Centre for the very purpose of warning him that his continued refusal would put her in a situation where she would have no option but to notify the Regional Director. 305 The Commission was taken in detail to the e-mail exchange between Ms Walker and Mr Dieter and the oral evidence. It was submitted that whilst Mr Dieter refused to accede to the proposition put to him on several occasions that in his responses he was just dismissive of Ms Walker, there was no doubt that he was, and that he treated Ms Walker with absolute disdain. The e-mails repeatedly showed not only Mr Dieter's contempt for Ms Walker (dismissive not being a strong enough word) but also his contempt for the Director General and other staff at the Centre. 306 In relation to the Executive memorandum issued by the Assistant Director-General Operations, the Commission was taken to the cross examination of Mr Dieter confirming he had seen this instruction. It was pointed out that his initial response was he couldn't recall seeing it, then he saw it for the first time in March and ultimately he acknowledged that if Ms Walker had attached it to her e-mail of 4 October, he would have seen it, but indicated he wasn't sure how she would have attached it but was it was possible that she did and he read it. It was submitted that that showed Mr Dieter taking the same position as he did with the keys that when faced with incontrovertible evidence that he has been untruthful he just adjusted his position to meet that evidence. 307 The evidence concerning the inappropriate comments in case notes was also extensively canvassed by Ms Anderson and in doing so it was pointed out that they demonstrated that Mr Dieter had contempt for some Unit staff at the very least, which was matched by his contempt for other organisations, the DJJ and the system. Ms Walker gave evidence that clients have access to these clinical notes. How could entries like these in case notes be an exercise of professional judgment by Mr Dieter? It was like throwing petrol onto the flames. These young boys were in this detention centre because they had run foul of the law. 308 It was pointed out that whatever misgivings Mr Dieter had, there was a proper procedure for him to raise that, but not in a General Case Note or a Specialist Confidential Case Note. He could have reported it verbally or, as Ms Walker's affidavit evidence showed, the opportunity existed to make a Confidential Case Note with only author and administrative manager access as follows: Confidential Case Note: This field is authorised by the line or administrative manager, and access is limited to the author and manager. This field will contain highly confidential sensitive information such as allegations, conflicts with particular staff members, detail on DOCs or other referrals, possible abuse allegations, suspicions relating to drug intelligence, closed file information. (Extract from the Executive Memorandum of 1 July 2004) 309 If Mr Dieter had misgivings about the behaviour of staff or what they had done in particular cases he had a means by which he could reported that would not have inflamed the situation and would not have caused the boys to believe that they had been subjected to or unfairness. He could also have walked in and seen the manager and told him there was a problem. He could have told one of his superiors but instead jotted it down in the case note for people to see. 310 It was submitted that his comments in some instances were a litany of sarcasm and arrogance and it was Mr Dieter that was always right and the Department, in his view, didn't know what it was doing. The inappropriate comments and the unprofessional comments in the case notes were relied upon as demonstrating an attitude that makes it impracticable for Mr Dieter to be reinstated. 311 In relation to the keys issue there had been an admission by Mr Dieter that he had been shown how to use the Key Watcher. The Commission had seen Mr Dieter in the witness box and it was submitted that one could not come to the view that he was a man who was suffering some sort of problem with his mental health. It was just "glaringly improbable", to use the terminology contained in Jackson v Legal Practitioners Board, that after of space for days Mr Dieter could have made the statement "I do declare I have not taken the keys time, they are not in my possession and do not know where the keys are, nor do I have an idea of where they could be." To the extent that he continues to say that that statement is true, his evidence is untruthful. 312 If the Commission was against the respondent on that point it could only come to the view that Mr Dieter was either a fool or recklessly indifferent to how he dealt with the keys or that he was suffering from some mental condition which made his continued employment as a psychologist untenable. Any of those three propositions made his continued employment untenable. Whilst in his second report he said that he regretted the considerable inconvenience and anxiety his previous statement must have caused, it could have all been avoided had he taken the simple step on 6 October of walking a number of the steps to the Operations area and handing the keys in. 313 The suggestion that as far as Mr Wilson was concerned he didn't regard the matter very seriously was rejected as the last paragraph of his memo of 11 October indicates what he thought- "Given that Mr Dieter has admitted his actions and his blatant failure and subsequent memory loss to follow the Centre procedures in relation to peace safety and Security, it is recommended that this matter proceed to disciplinary action." 314 The Commission was taken in detail to both the cross-examination of Mr Dieter with respect to the keys incident and his responses on that issue during the interview with Ms Mason and Mr Houston. It was submitted that there was no doubt that Mr Dieter either deliberately lied at the beginning of 10 October with respect to the keys or that he is just simply unsuitable to be employed because he couldn't remember what happened four days ago and he had a reckless disregard for his responsibility with respect to keys at the Centre. 315 That reckless disregard, if it was reckless disregard, was echoed again in the response he gave to Ms Mason as to why he didn't ask anybody on 6 October "No, I didn't ask anybody, just took them. In fact, if anything, I've got a redress against the department because you were holding me up, your system didn't work." 316 It was submitted that there were many more references in the transcript that touched upon Mr Dieter's attitude and the Commission was reminded that Mr Dieter on occasions took an extraordinary length of time to answer questions and on a lot of occasions just didn't reply. The evidence of Mr Byrnes and Mr Hall concerning the report of 24 February on the issue of the radios was but another indication of Mr Dieter's attitude to operational staff. 317 The proposition that the Department would ever trust Mr Dieter again was a proposition that could not be sustained. Deputy President Sams, in his decision in Young & Others v Department of Juvenile Justice, [2006] NSWIRComm 337, indicated that trust was not necessary 100 per cent of the time with respect to contracts of employment. It was submitted that with respect to the Deputy President that was a proposition that the Department disagreed with in respect of staff who were involved in working in detention centres both in the security aspects, in relation to the treatment aspects and the need to go about their duties with care as well as their relationships with other members of a particular profession, such as psychology. 318 In conclusion it was not disputed that there was a constructive dismissal but it was not one that was harsh, unjust or unreasonable. Mr Dieter was not a man who was suitable for reinstatement. The Department would never again have any trust in him whatsoever in so far as his attitude or his honesty was concerned. 319 Mr Easton in reply addressed the ruling in Brown v Dunn that requires a witness to be squarely put on notice that their evidence was going to be challenged as applied to this matter. He submitted that in this case, where the evidence had been laid out in the affidavits before the commencement of the hearing, the failure to cross-examine a particular element of any particular witness didn't render that evidence unchallenged where there was an inconsistent piece of evidence from somebody else. It just became a matter that the Commission would weigh up in the evidence. Some matters were usefully contested in cross examination and some weren't. 320 Mr Easton submitted that the Jones v Dunkel inference was readily available in this case particularly against Ms Mason and Mr Wilson. There was no evidence at all from Mr Wilson in these proceedings. The documents annexed to Mr Houston's affidavit had some evidentiary value in the case and were documents provided to Ms Mason. They were not of themselves evidence under oath from either Mr Wilson or from Ms Mason. 321 The memo of 10 October was indicative of what Mr Wilson thought at the time but he was under no obligation in his memo to be truthful to the same extent that someone has the obligation under oath to be truthful and it was not evidence from Mr Wilson. The particular contents of the memo were not especially contentious. The inferences Mr Easton sought to draw against Mr Wilson were particularly in relation to what views he formed about the continuation of Mr Dieter's employment at the centre from 10 October onwards, once he had all the information available about the keys and then did nothing in terms of taking any steps to remove Mr Dieter from the workplace if he was a security risk. If his employment was so untenable because of the two conflicting statements he ought to have done something. The inference readily available against Mr Wilson is that he didn't form a view that the employment had become untenable, and his failure to give evidence, made that inference more readily acceptable. 322 Whilst in the memo Mr Wilson said that the matter should be subject to disciplinary action that was a neutral statement at best and not a statement that said Mr Dieter's employment was untenable and that he ought, as a matter of risk and security, be removed from the Centre. He made comments in his memo about breaches of procedures but that was not evidence of a belief or doubt in Mr Dieter's honesty. There was no evidence at all from Mr Wilson about these matters for which Mr Dieter was terminated and those were matters that Mr Wilson might reasonably have been expected to be called to give evidence of. 323 The invitation by the respondent that Mr Wilson could be made available during the hearing was a nonsense. It was a matter for the respondent what evidence they called and if they were not prepared to have Mr Wilson provide affidavit evidence and come to Court, then the inference was against him. 324 It was submitted that the same situation applied to Ms Mason. The annexures to Mr Houston's affidavit were two form letters signed by Ms Mason, but they were not evidence of anything. Ms Mason formed the view that there was misconduct and then formed the view that Mr Dieter ought to be invited to resign. That was not in contention. But why she formed that view was essential to the matter and Ms Mason has chosen not to give evidence about that. How it came about that Mr Dieter would be terminated was a matter central to this case; who Ms Mason spoke to in the five months between when Ms Walker raised her concerns in January and the end of May when termination took effect; who Ms Mason consulted about the matter were not the subject of evidence. What she took into account was not the subject of evidence. The inference readily available was that that was because that evidence would not have assisted the employer in their case. 325 It was submitted that it was simply not the case that Mr Dieter was terminated because he refused to do Normal Case Notes. The case had never been as simple as that. The importance of Case Notes was not the issue. The issue was whether or not Mr Dieter did the duplicate case notes which had no value at all to the organisation, they were a duplication and useless and Ms Walker conceded it was duplication. 326 The Commission reminded Mr Easton that Miss Walker also gave evidence about what utility there might be in some information being put down. Mr Easton submitted that that was a whole different question. Case Notes were very important documents and provided all sorts of information. The allegation against Mr Dieter, as Ms Walker understood it, was that in a circumstance where there was no useful information to put in a Normal Case Note, Mr Dieter wasn't doing one. Ms Walker conceded that there were instances were a counsellor might need to do a Specialist Confidential Case Note and have nothing to say in a Normal Case Note. There had been conceptual shifts in the case. Ms Walker agreed about what Mr Dieter was not doing. It had not been suggested to the contrary to him from Ms Walker. 327 It was clear from the evidence from Mr Dieter, that when he was asked wasn't the reason he was dismissed because he wasn't doing the General case notes and his answer was "no", that that was the correct answer, because the issue was more precise than just that he wouldn't do Normal Case Notes. He freely said "I did all my Normal Case Notes ". Ms Walker supervised his Specialist Confidential Case Notes and his Normal Case Notes and said it was his discretion what went in each and she had no concern at all about his exercise of that discretion. 328 Ms Anderson at this point emphasised that that was not the issue between the Department and the applicant, she made it clear that was not the issue. The Department's instruction was in evidence and it said what should be put in a Normal Case Note. That was quite clear irrespective of what Ms Walker might have said. The document attached to Ms Walker's affidavit sets out what needed to be done. 329 Mr Easton submitted that that seemed to be a new criticism of Mr Dieter, that he was not an excellent practitioner or he was not professional because he didn't have something to say in the Normal Case Note. That was not what Mr Dieter and Ms Walker were talking about in 2005 and not what they were talking about in their e-mail exchanges. He was not terminated because of that, he was terminated because of the duplicated note that Ms Walker said he needed to make. 330 Mr Easton reiterated that Ms Walker had compiled the list of missing NCNs from going into CIMS. When she asked Mr Dieter to fix them up, she was not suggesting that there was some information lacking, just that there was a missing useless entry. Ms Walker could have repaired those entries and it was not bizarre to suggest that, she had not done that because was not her job and no one else thought of it. The logical answer to that was because it was duplication. Ms Walker conceded that if according to the policy, he had written, "I saw the boy", then the policy was satisfied. To suggest that Mr Dieter even now "hasn't got it" was not the case. He had got it entirely, he knew exactly what the situation was back in 2005 in the duplicating entries he was being asked to make. Ms Walker knew exactly what the situation was and it was not a matter of saying - "please do the case note because case notes were important", it was - " please do a duplicating entry that will show no more information than what anyone can see now". 331 When Mr Dieter made references to the bureaucracy and the like in a letter obviously critical of them, he is considered contemptuous. The evidence from Ms Walker was that the procedure was a duplication and waste. 332 It was submitted that in relation to the keys issue to suggest that he needed to come back with a better explanation, as being the cause of the second statement, didn't bear out on the evidence. His evidence was that was when he was told to go home and check, that prompted his memory. There was no evidence that, at the point of making the second statement, he was required to do so out of some sort of desperation. To suggest that the difference between the two statements either made him a fool or recklessly indifferent or mentally ill was an extraordinarily harsh test. 333 Mr Easton reiterated that was not unreasonable or incomprehensible that he forgot where the keys were and that what should not be lost sight of was, that it had only been a few days of operation that the Key Watcher policy applied to Mr Dieter. For at least three years before that he took the keys home as a matter of normal course and suddenly it was the most irresponsible action that anyone had ever done. The simple answer was that he forgot and when he remembered he wrote another note that was unambiguous. 334 It was submitted that that didn't make him unsuitable for employment. It could be inferred from Mr Wilson's absence that he did not form a view that the employment was untenable either. 335 There was a substantial delay between events and termination and the suggestion was that that was just "typical public service", but on the respondent's case, it was not a minor matter, it was so serious that a man of 11 years employment needed to be terminated summarily because it was an honesty and truthfulness issue. If that were truly the case then he would have been removed from the workplace immediately, or if he posed some security risk, some other security measure would have been put in place so as to overcome the concerns the employer had about his ongoing employment. The evidence was that nothing was changed, not even the locks. There was also Mr Dieter's evidence about what had happened when other people lost their keys. 336 It was submitted that for this to become a matter between October and May of whether or not his employment was tenable was grossly unfair. 337 It was submitted that in the April interview Mr Dieter was frustrated and he became agitated about matters. It was suggested that was justified in the context of him being from a department of eight and having only two to do the work and squeezing work into four days not five and being told about poor funding and the like, he was then called in to meet the Director General to discuss the matter from six months ago, where, from all the conduct surrounding the event everyone, had moved on with life in relation to the keys. In relation to the case notes, they were for months old and looking at a particular type of case notes, his view was that it was stupid policy. Ms Walker didn't say it was stupid policy, that wasn't squarely put, her evidence was clear that there was no useful purpose in having this duplicate case note. There was no escaping that evidence. It was no surprise that Mr Dieter was frustrated when he was called into the Director General about a failure to do a double entry. 338 It was submitted that the transcript of that interview read surprisingly like the transcript of these proceedings. The suggestion that Mr Dieter's answers before the Commission had not been truthful was rejected. That was not the case. The Commission had been able to observe Mr Dieter and would have observed that there was fundamental on-going tension in his cross-examination. When asked literal questions of fact he gave short, straightforward answers and when asked questions that required a qualitative assessment then he struggled more. Mr Easton took the Commission examples in transcript to illustrate his point. 339 Mr Easton reiterated that there was no suggestion that anyone should be lax about security issues or counselling issues with clients but in this situation if one looked at the actions of the Department you could not conclude that the matters for which Mr Dieter was terminated was so serious that they justified him immediately being removed from the workplace in May 2006. If there was any disciplinary action to have been taken, it was something less than termination because that was undoubtedly harsh for the questions that are there. 340 Mr Easton rejected the suggestion that the case notes showed a contemptuous attitude to staff and the like. Ms Walker, in September 2005, did not consider them to be contemptuous of other staff or indicative of a breakdown in the working relationship between Mr Dieter and other staff. Her comment was to the effect of "some people might find them sarcastic" 341 The same could be said about the e-mail exchanges between Ms Walker and Mr Dieter. Mr Dieter had suggested "banter" and in reality that was the conclusion that was available to the Commission because after he wrote the allegedly contemptuous e-mails in September and the "I REFUSE" nothing happened at all, not even a comment in the next clinical supervision notes. If it was contemptuous how on earth did nothing happen? If it was contempt then Mrs Walker didn't understand the contemptuous nature of that, she continued in the employment relationship. All that was known was that Ms Mason chose not to include those case notes in the disciplinary process. That could be because she didn't get it either and it was not contemptuous. 342 It was submitted that it was a given that nobody should be criticising workmates in company documentation. But it was certainly not a crime to be frustrated by what were seen to be failures in the system. Mr Easton pointed out that one only had to eavesdrop on a conversation on any train or bus to see that it is a common phenomenon in most workplaces. He submitted that was certainly not something that ought to prevent Mr Dieter from returning to his employment. 343 In conclusion it was submitted that despite Mr Dieter's alleged comments which came to nothing, he and Ms Walker continued in their relationship, they understood what the case notes issue was and it wasn't a personal issue between them. There was no conduct by Mr Dieter going to the heart of the employment relationship. That was the misconduct element that just wasn't met in this case. Mr Dieter's conduct did not go to the heart of the contract. There was inaction on the part of the Department when these things happened and no warnings were given to Mr Dieter at all. The comments in the 6 January conversation were not warnings and there was no evidence of Mr Dieter, beyond January, refusing to do the duplicate case notes. Consideration 344 I have very carefully considered the evidence, both oral and documentary, and the submissions of the parties. 345 There is no dispute between the parties that Mr Dieter was constructively dismissed by the Department as a consequence of the Director-General's letter of 31 May 2006 advising that he would be allowed to resign his employment by 11 June and that in the event that such resignation was not forthcoming, he would be dismissed. Mr Dieter did subsequently resign on 9 June 2006. It is not insignificant that he was extended the opportunity of resigning rather than being summarily dismissed. 346 It is therefore not necessary to consider the issue of constructive dismissal further or refer to the authorities generally cited in determining such, where that issue is contested. 347 The Director-General's show cause letter of 21 March 2006 advised Mr Dieter of two allegations of misconduct in relation to failing to return his keys to the Key Watcher system on 6 October 2006 and disobeying lawful and reasonable orders during the period January 2005 to January 2006 given by a person with authority, by refusing to complete both specialist and normal case notes and that she had formed the view, based on the available evidence and admissions contained in that evidence, that he had engaged in misconduct. 348 The onus is on the respondent to establish that misconduct has place per Pastrycooks Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No.3) (1990) 35 IR 70. The Commission must then be satisfied that that onus has been discharged and that the misconduct has taken place. 349 The Public Sector Employment and Management Act 2002 defines misconduct in s.43 as follows:- 43 Meaning of "misconduct" (188 Act, s.66) (1) for purposes of this Part, misconduct includes, but is not limited to, any of the following: (a) a contravention of any provision of this act or the regulations, (b) performance of duties in such a manner as to justify the taking of disciplinary action, (c) taking any detrimental action (within the meaning of the Protected Disclosures Act 1994 ) against a person that is substantially in reprisal for the person making a protected disclosure within the meaning of that Act, (d) taking any action against another officer that is substantially in reprisal for an internal disclosure made by that officer. (2) For the purposes of this part, the subject matter of an allegation of misconduct may relate to an incident or conduct that happened: (a) while the officer concerned was not on duty, or (b) before officer was appointed to his or her position. (3) In this section, internal disclosure means a disclosure made by not so regarding the alleged misconduct of another officer belonging to the same Department as that to which the officer belongs. 350 As can be seen, that definition is extremely broad, particularly when you look at not only (1) (a), and but also (1) (b), which must be read in the context of the definition of "disciplinary action" in s.42 which includes "(f) a caution or reprimand". 351 During proceedings Ms Anderson for the respondent indicated that the Department only relied on the allegations concerning the keys and a refusal to complete normal case notes as misconduct forming the basis of reasons for the dismissal. 352 I will return later to the other allegations, being the refusal to do specialist case notes (the two failed CIMs notes for 6/12/05) and the issue of inappropriate language and entries in case notes referred to in Ms Walker's 9 January memorandum to Mr Buchanan. The latter issue was raised with Mr Dieter by the Director-General, Ms Mason during the course of the 21 April disciplinary interview. Whilst that issue was not relied on as a reason for Mr Dieter's dismissal, it was relied on as a reason why Mr Dieter could not be reinstated to his position of Psychologist at either the Frank Baxter Juvenile Justice Centre or any other Juvenile Justice Centre within the Department. 353 Even if it is established that misconduct did occur, the Commission must also consider whether dismissal in the circumstances was too harsh a penalty per Byrne & Frew v Australian Airlines (1995) 61 IR 32. Likewise whether the dismissal was either harsh or unjust or unreasonable per s.88 of the Act. He however, the onus moves back to the applicant to establish unfairness sufficient to warrant intervention per Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273. If intervention is warranted the Commission must then consider, as the applicant seeks reinstatement, whether such reinstatement is practicable in all the circumstances. 354 I turn now the allegations against Mr Dieter and firstly the keys issue. 355 I make it quite clear that I do not consider that Mr Dieter deliberately lied in his statements on 10 October to Mr Wilson nor that he was untruthful to this Commission in relation to the episode concerning the keys. I also do not consider that his evidence was "glaringly improbable." 356 I am firmly of the view that Mr Dieter did indeed forget what he had done with the keys on the 6 October. I do not consider that his actions were unreasonable in the circumstances nor do I consider that they were reckless or that his failure of memory is a basis for any particular concern that would relate to his ongoing employment. I have other concerns that go to his ongoing employment that I will deal with in due course. 357 I have carefully considered the evidence on the keys incident. That clearly indicates the following: � A combination of Mr Dieter's evidence and the 28 September 2005 e-mail of Ms Darby to Steve Lund concerning the key audit of Mr Dieter's keys (Exhibit 10 - Annexure A), would show that Mr Dieter was placed on the Key Watcher system around 26 - 28 September 2005. He was given verbal instructions only on the use of the Key Watcher system. There were no written directions or guidelines provided to him. There was no instruction given to him as to what to do if the Key Watcher failed and keys could not be returned. There was no evidence to the contrary and I accept Mr Dieter's evidence on that matter. � Mr Dieter's keys only provided internal access within the Centre (and not to the Units), did not provide external access, had no identifying label only a locksmith's contact and they were returned to the Centre approximately 2 weeks later. � Mr Dieter's previous long-term practice, firstly at the Mt Penang facility and subsequently at Frank Baxter, had been to take his keys home. There is no evidence to suggest that this had been a problem or was a practice that was carried out without the knowledge of Centre administration and if not officially approved, it was certainly condoned. There was no evidence as to what he did with his keys in those years when he did take them home, whether he kept them in his residence or indeed had a practice of leaving them in the centre console of his car. � The week of 6 October was one where Mr Dieter only worked two full days and a part day on the Thursday. Monday 3 October was a Public Holiday and Mr Dieter did not work, as evidenced by the e-mail exchange with Ms Walker. When he came to place his keys in the Key Watcher when he sought to depart the Centre at approximately 10:30 a.m on the Thursday, he had only been on the Key Watcher system for between 5 and 7 working days. � When he left the Centre, instead of going home as was his usual practice, he spent the rest of the day, at least, driving straight to Coolangatta airport in Queensland, a not inconsiderable distance, picked up his wife and then drove to Brisbane where they stayed the weekend. It is reasonable to conclude that he also spent a considerable number of hours driving back to his residence at Terrigal the following Sunday. Whilst in Brisbane his car was broken into and a number of valuable personal items stolen ( including the keys as he subsequently realised). � Given the lengthy time involved in the drive to Queensland and what occurred over the weekend with the obvious stresses that would accompany any such incident I can entirely understand and do not consider it unreasonable or incomprehensible in the least that when he went to access his keys from the Key Watcher on Monday 10 October and could not, that he had forgotten just what he had done with the keys the previous Thursday with all that had occurred in the meantime. � I also take into account that all this occurred in the context of the week of 2 to 6 October, being the first week in which he was moving to only working until Thursdays, and taking Fridays off as annual leave, as a consequence of having accumulated too much annual leave as he had not taken leave for two years. It was Mr Dieter's evidence that he still retained his same workload, which now had to be done in four days rather than five and during this period or at least to the end of the year if not slightly longer, due to staff shortages of various kinds, there were at times as few as only two counsellors (rather than eight) including Mr Dieter, at the Centre. Any workload issues would clearly have being exacerbated in the lead up to 6 October by it being an even shorter working week due to the Monday Public Holiday. � The keys incident also took place virtually straight after the e-mail exchange between Ms Walker and Mr Dieter concerning the missing NCN for 16 September. The last exchange between the two on that issue occurred on Tuesday 4 October. His frame of mind (which I will address later) is very much evident in that e-mail exchange. Mr Dieter did not strike me as a patient man. He was clearly in a hurry on the Thursday. He had, only the week before, as confirmed by Mr Wilson in his 11 October memo, taken exception to having his keys removed and replaced, thus enabling placement on the Key Watcher system, without his knowledge or countersignature for those keys. Giving the keys to someone else on the Thursday did not occur to him and even if it had, based on his experience the week before and having observed Mr Dieter and listened to him during proceedings, I doubt very much that he would have considered that an appropriate course of action without some clear indication that someone was prepared to sign for and take responsibility of the keys. That would no doubt have created some difficulty for whoever he approached. 358 That is not to say that Mr Dieter's actions could not be regarded as careless rather than reckless, in that he placed them in the centre console of the car rather than keeping them on his person or removing them from the car at the end of the day. There is also no doubt he could have sought, if he wasn't in such a hurry, an appropriate alternative to taking the keys away from the Centre. 359 However as I have said, in the circumstances, I do not consider that firstly, taking the keys from the Centre was entirely unreasonable, it was the appropriate "common sense" for Mr Dieter to apply, given what I have outlined above, secondly it was not unreasonable to have forgotten on the Monday just what it was he had done with the keys, notwithstanding that it had only been four days ago. An awful lot had happened in those four days that could not be considered to be what normally happened between leaving and returning to work particularly over the course of a weekend. 360 I do not consider that he deliberately lied in his first statement on 10 October when he said he had not taken the keys home. I agree that that statement represented his recollection at that moment and it was not until Mr Wilson spoke to him a second time, advised him what the Key Watcher alert indicated, told him to check again in a variety of places including his home and to go home if necessary, that that prompted his memory that in fact on the previous Thursday he did not go straight home and therefore took the keys with him to Brisbane and they had therefore also been stolen. 361 I agree with Mr Easton that at that stage there was no indication that his employment was in jeopardy and I can see no reason for Mr Dieter to have deliberately told untruths. Indeed having observed Mr Dieter in the witness box and through the various documents before me, Mr Dieter is clearly a person who can be more than frank and outspoken in what he says and how he says it and doesn't shy away from that. Any dissembling arises from his post facto attempts to justify or validate his actions. Indeed this was a recurrent theme throughout the proceedings in relation to other issues in contention. 362 I also have to agree with Mr Dieter that apparently no one took any notice of the "Key Alarm Overdue" logged at 19.07 on 6 October between that time and Mr Dieter bringing to the attention of management on the Monday that he could not retrieve his keys and believed someone had taken them. There was no evidence as to what was supposed to happen as a consequence of a "Key Alarm Overdue" but I would hope that any deficiency in this regard has since been addressed. 363 I also note that Mr Wilson, in his 11 October memo, made no suggestion whatsoever that Mr Dieter had been dishonest or had lied. It is also apparent that it was only following the second statement by Mr Dieter, that a "Key Watcher Transaction User Report" was generated, which confirmed his attempts to return the keys on 6 October. 364 It was Mr Dieter's evidence he had no knowledge that Mr Wilson was submitting a report which recommended that the matter of the keys proceed to disciplinary action. He apparently was not given any oral or written instructions subsequently concerning the keys and what should or should not have done with them. In fact nothing more was said about the keys and he received a replacement set some two weeks later. There was no evidence to the contrary from Mr Wilson. 365 There is no evidence whatsoever that there were any heightened security measures taken or indeed that any thing at all occurred, apart from Mr Wilson's report, as a consequence of this alleged reach of security on the part of Mr Dieter either in relation to Mr Dieter himself or the staff generally. 366 I have to say that I cannot for the life of me see why this matter had to proceed to disciplinary action at the level at which it did (which was the highest level possible) and why it could not simply have been a dealt with immediately by Mr Wilson, as the Centre Manager, indicating to Mr Dieter both verbally and in writing, what he should have done and what he ought to do in the future, should such a situation arise again, and if thought necessary, reprimanding him. It does not appear that anyone has any delegated authority to handle what really was in my view a relatively minor matter given all the circumstances, which Mr Wilson could more thoroughly have ascertained at the time. 367 I also consider that at the very least, Mr Wilson should have informed Mr Dieter that he was making a report and recommending that the matter proceed to disciplinary action. 368 I agree with Mr Easton that this was really a minor issue given that essentially nothing happened after the incident and when it is viewed against the background of all the relevant circumstances outlined above. For it to have taken some 6 months before it was brought to Mr Dieter's attention, and that by way of an allegation of misconduct, is totally unreasonable and unfair. 369 There was also no evidence, not just of any previous security breaches or security issues with Mr Dieter, but no evidence that there had been any issues of any kind of a disciplinary or adverse nature raised against Mr Dieter in all the 10 years of his employment. 370 To suggest that Mr Dieter's memory lapse is in some way indicative of some ongoing condition or represents a security risk is in my view ridiculous. I can think of numerous analogous situations, (which I will not outline) involving my own misplacement/forgetfulness in relation to keys/car keys/mobile phone/glasses etc, and I like to think that I have an exceptionally good memory. The point I reiterate is, that given all the circumstances, I can entirely understand and do not think it unreasonable that Mr Dieter genuinely forgot what he had done with his keys. 371 Similarly I do not consider it unreasonable that he took the keys him as he had previously done, up until a week prior, for last 10 years. I accept that that was a commonsense solution for Mr Dieter in all the circumstances that were prevailing at the time. 372 I consider that this incident should only have warranted at most a caution or reprimand issued by Mr Wilson or if he had no delegated authority to issue such caution or reprimand, whoever did have such authority, but certainly at a level lower than requiring a reference to Mr Houston's Unit. A caution or reprimand issued six months down the track is useless and certainly would not indicate a grave concern for security at the Centre arising from his actions. 373 I consider that, having taken into account the evidence and all the circumstances of this incident, for it to have been taken into account as one of the reasons for the dismissal of Mr Dieter was harsh, it was unjust and it was unreasonable on a substantive basis. I also consider it was harsh, unjust and unreasonable on a procedural basis given the way the incident was subsequently dealt with and the length of time before any disciplinary action took place. 374 Briefly commenting on the issues arising from Mr Byrnes' and Mr Hall's evidence, I agree with Mr Easton that they could be categorised as a "massive beat up". It was evidence that was led after Mr Dieter had given his evidence and over the objections of Mr Easton. Mr Dieter was however cross-examined on the 24 February incident. I really think his version of what he maintains he said is not so vastly different from what is in Mr Byrnes' report as confirmed by Mr Hall. The difference mainly seems to be in how each side interprets what was intended by what Mr Dieter said. There is no doubt that the whole way he conducted himself during the conversation with Mr Byrnes and the way he responded to him is indicative of this general attitude he conveys of being difficult, that he is "untouchable" and that at times he is just plain rude. 375 Given Mr Byrnes' evidence I do not really consider that the issues raise such serious security concerns against Mr Dieter that would impact in any serious way in preventing consideration of reinstatement as a remedy in this matter. However I do have concerns about the attitude of Mr Dieter that the incident and the evidence clearly reveal. 376 Before moving onto the issue of the refusal to do the duplicate normal case notes I turn briefly to the second issue raised in Ms Walker's 9 January memo of "inappropriate documentation". In doing so I note that it was made plain during proceedings that this was not an issue relied on in relation to the dismissal of Mr Dieter. That is entirely appropriate. Indeed I consider that it should not have figured at all in any disciplinary consideration. 377 The two case notes in question for 6/12/05 and 7/12/05 have been detailed in the evidence above (at 111). It is not entirely clear whether the entries represent two attempts to do the one entry for one consultation, or two separate entries for two separate consultations. I have already referred in evidence above to the fact of that below the two case notes there is handwriting (which appears to be that of Ms Walker) indicating that one is a "Specialist casenote" (6/12/05) and the other a "Normal casenote" (7/12/05). It may be that they both relate to the one interview session which took place on 6 December. 378 However what is of overwhelming significance to me is that I can find no evidence anywhere that the issue of the failure to provide the "Specialist casenote" of 6/12/05 was ever raised by Ms Walker in any way or at any time with Mr Dieter. In the e-mail she sent Mr Dieter on 5 January 2006 listing a further nine specific dates for which there was no NCNs for the corresponding SCNs (as well as the original 16/9 NCN which had still not been provided), one of the dates in question is 7/12/06 which would correspond to the failed case note referred to above. There is no mention whatsoever of a missing "Specialist casenote" nor is the 6/12/05 listed as a relevant date. 379 I also note that in Ms Walker's 9 January memo she refers to the issue under the heading " 2. Inappropriate Documentation" as follows- "a. On two occasions George placed notes on CIMS where he refers to providing a lengthy assessment, however due to CIMS system problems the saving of these assessments has failed." She attached printouts of the two notes to her memo. 380 Under the heading " 3. Failure to comply with instruction" were listed six points relating to Mr Dieter's refusal to provide NCNs in circumstances in which he considered it would be a duplication. She concluded her memo with the following:- " I spoke to George on the 06.01.06 and explained that as a result of his ongoing refusal to accept directions from myself on these matters I have no other course of action and to report the matter to the Regional Director with a recommendation that the matter be forwarded to the Professional Conduct Unit for further action." 381 It is unclear to me whether the reference to "ongoing refusal to accept directions from myself on these matters" is merely a reference to the issue concerning the NCNs or is meant to include the two notes which were unable to be saved in CIMs. However I would have thought that the two failed CIMs notes could not have been included in the reference to a refusal to accept ongoing directions as there is no indication in the paragraph where she raises the issue, that in fact any instruction about the missing notes has been given to Mr Dieter or that he has refused to carry out any instruction. I also note that she goes on to say she was "referring the matter" (singular). 382 There is no evidence at all that the issue of the two failed CIMs notes were raised by Ms Walker in any way during the meeting she had with Mr Dieter at the Centre on 6 January 2006. All the evidence concerning the discussion between Ms Walker and Mr Dieter and what was said on that day relate to the issue of the duplicating NCNs. 383 Yet in Ms Mason's show cause letter of 21 March the second allegation of misconduct put to him has somehow morphed into the following - "That during the period January 2005 to January 2006 you breached the code of conduct in that you disobeyed lawful and reasonable orders given by a person with authority by refusing to complete both specialist and normal case notes." (emphasis added) 384 I have great difficulty seeing how an allegation of misconduct could possibly be justified in relation to a refusal to complete a specialist case note when I can find no evidence firstly, that any such specific instruction was given in relation to the specific specialist case note in question and secondly, that there was in fact any refusal of any such instruction. In my view that allegation could not be sustained and should not have been made. 385 This would clearly explain why the Department, during proceedings, indicated that it no longer relied on that part of the allegation arising from Ms Walker's memo as a ground for dismissal. However it is not clear to me whether that issue has played any part in Ms Mason's consideration of the appropriate penalty to be applied to Mr Dieter, having formed the opinion that he had committed misconduct as the show cause letter indicates. 386 The more serious issue for consideration is Mr Dieter's refusal to comply with Ms Walker's request that he complete the missing NCNs. 387 It is abundantly clear from the evidence of both Mr Dieter and Ms Walker that the issue concerning the provision of the missing NCNs was about Mr Dieter doing what he considered to be a duplicate case note that served no useful purpose, was a waste of time and did not provide information that was not already available and readily accessible on CIMs. 388 It is also abundantly clear from the evidence that at no stage whatsoever did Ms Walker ever suggest to Mr Dieter or instruct Mr Dieter, with respect to the specific disputed NCNs, that he ought to provide more information than simply "I saw the boy". On Mr Dieter's evidence, which was not contradicted, it had been Mr Troth who had told him that where Mr Dieter considered there was nothing useful to say in an NCN, to put "I saw the boy". Mr Dieter complied with providing NCns in circumstances where he considered them a duplication for at least, it would appear, pretty much 12 to 13 months until 16 September 2005. 389 I note that in the list of dates of missing NCNs in Ms Walker's 12 January memo, out of a total of 28 dates only 5 predate 16 September (and include 8/08/05 and 6/09/05). The appropriate provision of NCNs for SCNs was a matter for monitoring by Mr Dieter's Clinical Supervisor, with the content of the NCNs reviewed by the Manager, Client Services (Ms Ciko), according to Ms Walker's evidence. The five missing NCNs prior to 16 September would suggest to me that there had also been a failure of supervision and follow-up. There is no evidence that Mr Dieter had been asked to provide those earlier NCNs and had refused to do so. There is also no evidence as to just how long Ms Walker had actually been Mr Dieter's Clinical Supervisor. I therefore have some difficulty with those NCNs being included as part of any disciplinary process. 390 There is no doubt in my mind and it is clear on the evidence, that Mr Dieter did refuse to do the duplicated NCNs from 16 September onwards as he clearly indicates in his e-mails. It is also clear that his refusal to do them was not merely a result of frustration with a process he thought unnecessary, not useful and a waste of time. His refusal was in large part his way of agitating the issue up the line with management and having it resolved in some way. To that extent he was indeed seeking confrontation and was ultimately on a collision course, as it were, with management. 391 On Mr Dieter's evidence he did raise the issue with Ms Ciko following the e-mail exchange with Ms Walker. On Ms Walker's evidence she raised the matter with Mr Troth. No one had got back to Mr Walker with any outcome. Apparently the issue (and the broader issues referred to by Mr Dieter in evidence about the general concern of psychologists on case notes) had not been resolved and the interim procedures set out in the July 2004 Executive memorandum still applied. 392 However I also note that the e-mail exchange between Mr Dieter and Ms Walker on the issue was somewhat informal, at most it was a request and that no time did Ms Walker issue a clear written direction to do the NCN and indicate the consequences of such a refusal. I agree with Ms Anderson that she was probably "too nice" and going out of her way to take a "softly softly" approach to what was obviously a very difficult person. 393 It does Mr Dieter no good to question in his affidavit Ms Walker's authority to give instruction about NCNs. It is clear from the e-mail exchange he never challenged her on that at the time. I regard that as an example of what occurred throughout proceedings where he sought to either justify or validate actions he had taken or things he had said or written. 394 I also make it clear that I do not consider Mr Dieter's responses in the e-mail exchange to be merely "banter". His responses were entirely inappropriate and indeed just plain rude. However, Ms Walker never took him to task about the inappropriate nature of his responses to a supervisor and there is no evidence that she made any complaint to anyone about the nature of the responses in his e-mails. 395 There is no doubt that during the 6 January meeting between Mr Dieter and Ms Walker she made clear to him that his continued refusal to the NCNs as requested would leave her no option but to refer the matter on with it ending up before the PCU. That clearly outraged Mr Dieter as is obvious from his response. It still appears to me that Mr Dieter considered that such referral up was going to somehow deal with the issue itself rather than deal with his refusal to carry out instructions. He also expressed his belief, based on what he said, that what he had done would not be considered misconduct by anyone and nothing would happen to him. 396 There is also no doubt that Mr Dieter went about trying to agitate an issue he was fully entitled to have a concern about and fully entitled to bring to the attention of the appropriate person in the Department and seek to bring about change. However he chose a totally inappropriate way to pursue that issue. 397 In relation to this issue I also wonder why on earth it went straight to a disciplinary proceeding rather than being dealt with through counselling as a professional conduct issue by an appropriately senior specialist person such as Mr Troth or some other senior person as delegated by Mr Allerton the Director, Psychological and Specialist Services. 398 Such counselling could have also addressed whether in fact there was something more useful that could be said about one of Mr Dieter's interventions other than simply, "I saw the boy". It is clear from Ms Walker's evidence that it may well have been relevant to include some comment about the juvenile detainee's demeanour at the least. Whilst it may well be that there could be no specific outcome from such intervention session or an outcome that had relevance to ongoing case management or what Youth Workers might be doing, surely a comment on whether or not the young person was co-operative/agitated/passive/uncommunicative etc., could have been included with a notation that there was nothing of specific relevance to case management to report. For example - "Saw G, cooperative but agitated, nothing to report of relevance to case management." 399 That notation took me literally only seconds to type. Just as typing "I saw the boy" would only have taken Mr Dieter a second at the most, plus whatever time was necessary to open a new screen in CIMs. His argument or reasoning put forward about time constraints and having to make a decision about doing what he considered to be a waste of time or alternatively concentrating on his clients, really doesn't wash. Very little of his precious time would have been wasted. It really had just become an issue of principle with him. 400 However having said that, I still believe it would have been more appropriately dealt with initially by someone more senior than Ms Walker discussing, not just that issue with him, but also the issue of his inappropriate comments in case notes. If such counselling proved unsuccessful and Mr Dieter continued on his course in the full knowledge of the consequences, then and only then, should the matter have proceeded to be dealt with as a breach of discipline, with dismissal a clear option. 401 I also make it plain that I am not impressed by Mr Dieter's somewhat twisted logic that requests/instructions concerning completing the NCNs were not lawful and reasonable for the convoluted reasons he advanced to Ms Mason during the April interview. It does concern me that Mr Dieter took the view that he could decide whether an instruction was reasonable or not as being the basis for whether he would comply with that instruction. And on the evidence still holds to that view. 402 Unless an employee is clearly being asked to do something that is illegal, unsafe or beyond a person's skill and capacity (for example something that requires the holding of a particular qualification/trade before one can undertake the task in question) then an employee does not have the right to refuse to carry out directions/instructions of the employer even if one thinks what is being asked is silly, stupid, or a waste of time. And for abundant caution before refusing an instruction on the basis I have outlined above where possible an employee should seek appropriate clarification, guidance and/or seek to raise the issue in an appropriate way with an appropriate person in authority. 403 This is what Mr Dieter did not do. The way he went about agitating the issue, by simply refusing to do them, was entirely inappropriate and I make it plain he should not have refused to comply with Ms Walker's very reasonably put requests. 404 However I do not consider that his refusal to do the NCNs in question, given the basis for that refusal and the fact that there is no evidence that he refused any other request/direction/instruction, warranted dismissal and as such his dismissal, on a substantive basis, was harsh, it was unjust and it was unreasonable. 405 In coming to that view I have also taken into account his previous unblemished record as well as the fact that each year he had received an assessment that his "conduct and services" were "satisfactory" enabling his incremental progression to the top of the scale under the Award. (Exhibit 2- 14). 406 I turn now to the inappropriate comments in Mr Dieter's case notes. I have considered the case notes in question carefully. Ms Walker raised five case notes in her 9 January memo to Mr Buchanan but in doing so only indicated that they were "discussed with George in supervision on the 12.09.05. In this session he asserted that the notes were his views and he would not change them." There was no evidence that she gave any instruction to Mr Dieter that he was not to put judgemental or sarcastic comments in his case notes in future. Two of the five case notes were in fact for dates after her supervision session. It was her evidence that she did not subsequently raise the issue of inappropriate comments with him prior to sending her memo. Therefore those two case notes were not discussed with him. It is also apparent from the evidence that Mr Dieter had no knowledge that this issue had been referred on to Mr Buchanan. 407 I agree that the comments that have been underlined in those case notes in the main can clearly be viewed as personal comment by Mr Dieter and could certainly be considered judgemental and possibly sarcastic. There are two case notes where what was commented on was apparently said by the young person during a session (re food and Youth Workers encouraging assaults and the Ombudsman comment) and a third where the comment was made by another person (a nurse re NEXUS). In those cases Mr Dieter agrees he should have put those comments as a direct quote. Alternatively he could have made it clear in the case note where the substance of the comment originated from if he was simply summarising what was said/expressed. 408 The other comments clearly reflect Mr Dieter's low opinion of and dissatisfaction and frustration with some action that has had a consequence for the juvenile detainee, the subject of the case note. I would not go so far as to say that those particular case notes show contempt for the Department or other staff. That is too extreme a description. Some of the comments could possibly be considered to derogatory. There is however a level of dissatisfaction/disapproval/disagreement expressed as to actions of the system/the Department. That level rises considerably in the 8 additional case notes Ms Walker attached to her June 22 memo to Mr Houston. These were case notes completed by Mr Dieter after her 12 January memo and not brought to his intention in any way. They also would not have come to the attention of Ms Mason prior to his dismissal. 409 Some of those additional case notes clearly show what could only be described as withering scorn or contempt, as highlighted by the following:- Note Date: 17/02/06 Note Created: 17/02/06 (A) is managing his frustration with our inefficiency and incompetence very well. The application for a change of supervisor, to and been initiated earlier this year, apparently - that is reportedly, is now been returned to the unit, had NOW been returned to the unit because somethig (sic) or other was wrong with it. The worng (sic) form? Colour of pen? Who knows! 410 Mr Dieter indicated in evidence that his reasons for including such comments in his case notes were so that someone higher up would read them and do something about the issue. This was clearly not the appropriate way to raise any legitimate issues of concern that affected a detainee. Nor was it appropriate to add what were his own derogatory observations/opinions. 411 Employees clearly have the right to hold opinions and views that are critical of their employer, whether employed in the Public Service or the private sector and indeed to express those opinions and views in an appropriate way and constructive way in an appropriate forum. 412 In my view it would be entirely appropriate and relevant for Mr Dieter, in his case note of a session with a juvenile detainee, to appropriately detail just what it was (be it an action/event/comment, from either an internal or external source) that had affected or caused the young person's behaviour/attitude/actions that were the subject of the intervention or discussion. However any such detail should have been provided in an objective, not subjective way, and without unnecessary personal views/opinions being expressed about the issue. The Commission, during cross examination on this issue, raised that very point with Mr Dieter as to why, in a particular case note, he didn't simply finish at the end of a particular sentence rather than go on and make the comment he did. He agreed that that would have been appropriate. 413 I also consider that it would be entirely appropriate and relevant to raise an issue of concern with any particular actions or application of policy that had adversely affected a juvenile detainee, indeed I would have thought there would be an absolute obligation on Mr Dieter to do so, but the appropriate format for raising that issue would appear to be through use of the Confidential Case Note or indeed by directing an appropriate memorandum to a person at the appropriate level of authority. 414 Mr Dieter indicated that with respect to the case note concerning the food issue he did subsequently go and see Mr Wilson about the matter. It should also have been the subject of a Confidential Case Note. 415 There is also the concern that the juvenile detainees, on Ms Walker's evidence, have the right of access to the case notes on their file. However there is no evidence whatsoever as to whether that is a right that is in fact ever exercised and in what circumstances it is exercised. It was also not an issue that was put to Mr Dieter. It would seem obvious that when writing a case note Mr Dieter should have always kept in the back of his mind that the case note could be accessed by the detainee in question and therefore were the comments he was making appropriately expressed, if they were to be read by the detainee. 416 Ms Walker's Clinical Supervision Notes for 12 September indicate that she only told him "such documentation would not reflect this (that he was an excellent practitioner and very experienced) and could even work against him" (Emphasis added). Her last bullet point on the issue also indicates " George was in agreement that this be discussed further with ADPSS". That would appear to be a reference to Assistant Director Psychological and Specialist Staff. That would have been an entirely appropriate course of action to take in relation to this issue, but obviously with Mr Dieter's involvement. That does not appear to have ever happened. Clearly someone in a senior role from that unit should have sat down with Mr Dieter and discussed with him what was and was not appropriate to put in both a Specialist Case Note and a Confidential Case Note and how it might be appropriately expressed. 417 Now that I have had the opportunity of considering the evidence and transcript carefully, I also have a concern, as to whether the clearly negative and critical comments made in some of the case notes also reflect the way Mr Dieter conducted the intervention and whether that negativity/criticism was expressed or communicated (either consciously or unconsciously), to the juvenile detainee in any, and thus impacted or had an adverse influence on him in any way. I acknowledge that this concern was not raised at all with Mr Dieter or Ms Walker or Mr Houston during proceedings. It but reinforces my view that counselling of Mr Dieter regarding the contents of his case notes should have occurred and at the level I have indicated above. 418 During the 21 April interview only one actual case note appears to have been discussed in detail. Mr Dieter, once he had calmed down after the interview, wrote to Ms Mason expressing his concern for the issue of inappropriate comments being raised at all in a disciplinary context. He was justified in expressing that concern. I do not believe that this matter should have been addressed at all in the disciplinary interview. It should have been dealt with as a professional issue through appropriate counselling. 419 Ms Mason certainly could have indicated to Mr Dieter that concern had previously been expressed with the nature of some of his comments and that it was considered appropriate that this matter be the subject of further evaluation/discussion and/or counselling. That would have been a more appropriate way of dealing with that issue. If such counselling was unsuccessful and Mr Dieter carried on his course of action then disciplinary proceedings would have been the obvious consequence. 420 The respondent did not press the issue of the inappropriate case notes as a matter relied on as the basis for the decision to dismiss Mr Dieter as the disciplinary outcome of the April interview. The issue is only relied on as going to the impracticability of reinstating Mr Dieter to either his former position or any similar position within the Department. 421 Because there were no warnings given to Mr Dieter about his inappropriate comments and because no counselling took place on this issue, I have had some reservations as to those comments being a barrier to considering reinstatement as the appropriate remedy in this matter. However I make it plain that I consider the comments totally inappropriate in the way in which they were expressed even if there was a legitimate casework reason for making a notation of some kind. 422 I also note that when the issue of his inappropriate comments was discussed with him by Ms Walker he justified them on the basis that they were "facts". That clearly can only be his view. Even if there was some basis of fact in what he said, the way he expressed those facts could certainly be viewed as "sarcastic and judgemental" and as I earlier expressed were inappropriate in the context of an SCN. Presumably he would also seek to justify the comments he made in the SCN of 17 /02/06 as detailed above (see 409) as being "fact" and therefore justified. That causes me great concern. 423 I again reiterate that there is nothing whatsoever before the Commission as to exactly why it Ms Mason determined, that in all the circumstances, it was appropriate to proceed to dismiss Mr Dieter, rather than invoking one of the other disciplinary options available under s. 46. There is no evidence that either Ms Walker nor Mr Wilson were spoken to further about either the allegations or what disciplinary action might be appropriate in circumstances. 424 I rather suspect that Mr Dieter's attitude, as expressed in his e-mail exchanges with Ms Walker; some of his inappropriate comments in his case notes; his entirely inappropriate and disrespectful letter of 31 March to Ms Mason; the entirely inappropriate way he conducted himself and some of the things he said during the April interview as well as his 28 April e-mail to staff about Ms Walker and the disciplinary process, would have figured in Ms Mason's consideration of what to do about Mr Dieter. 425 The tone of the 28 April e-mail and the way he "dumped" on Ms Walker was quite deplorable. And I note Mr Dieter's notification to staff that in future he would only provide Normal Case Notes not Specialist Case Notes (which was quite wrong). That refusal resulted in Mr Buchanan issuing Mr Dieter a written direction on 1 May to comply with the provisions of the July 2004 Executive memorandum as to case notes. Mr Buchanan also met with Mr Dieter. That was the sort of swift and direct action from an appropriate person in authority that should have been initiated in respect of Mr Dieter's actions much earlier in the piece. 426 Further I consider that, in relation to both the 28 April e-mail and what he told Ms Walker about reporting her to the registration board, those actions could constitute misconduct under s.43(2)(d) " taking any action against another officer that is substantially in reprisal for an internal disclosure made by that officer." "Internal disclosure" being defined at s 43(3) (- see 349 above). That could also have resulted in disciplinary action and I rather suspect it probably would have, had not Mr Dieter been dismissed by Ms Mason on 31 May. 427 Whilst Ms Walker could not recall what it was that created the difficulty that resulted in the decision to have Mr Troth take over the clinical supervision of Mr Dieter, it seems more than coincidental to me that that event appears to have occurred after the 28 April e-mail and Mr Buchanan's meeting with Mr Dieter, in which he also canvassed his attitude towards Ms Walker. That would make abundant sense and be entirely understandable. 428 I accept that, strictly speaking, when Mr Dieter told Ms Walker he was referring her to the registration board it was not a threat made to prevent or coerce her into doing something affecting Mr Dieter, it was in fact something he fully intended to do (and has done but without using her name). But apart from any suggestion of having a genuine concern about whether there had been some ethical breach that should be brought to the attention of the board, there is no other way of viewing both this, and the e-mail, as anything other than "pay back" and a spiteful way of getting back at her. Those actions were deplorable. 429 Having carefully considered all the evidence before me there is no doubt that applying the definition of misconduct under the Public Sector Employment and Management Act 2002, given how broad that definition is, that Mr Dieter committed misconduct in relation to his refusal to complete Normal Case Notes in certain circumstances. To that extent the respondent has discharged the onus upon it to establish that misconduct has taken place per Pastrycooks. 430 A dismissal can be both substantively and procedurally unfair per Byrne & Frew v Australian Airlines, an authority relied on in numerous decisions of this Commission. 431 The relevance of also considering additional information as to facts in existence at the time of dismissal, but which only come to light after the dismissal is supported by the decisions in Byrne & Anor v Australian Airlines, Hollingsworth v Commissioner of Police (No.2) (1999)47 NSWLR 151 and Lane v Arrowcrest Group (1990) ALR 45. The relevant additional information in question is firstly, Mr Dieter's actions taken against Ms Walker in relation to the registration board and secondly, the further 8 case notes with inappropriate comments attached to Ms Walker's 22 June memo. 432 The expression "harsh, unjust or unreasonable", was also considered in Byrne & Anor v Australian Airlines. The principle was further discussed in Outboard World v Muir (1993) 51 IR 167. Essentially those cases hold that it is not necessary that a termination be found to be harsh and unjust and unreasonable. It can be one or any or all of those three. 433 The meaning of those individual terms was been considered in detail in Sams v Contact Point International [2001] NSWIRComm 18 and that decision has been applied in other decisions of this Commission. I also adopt those considerations. 434 Bankstown City Council v Paris (1999) 93 IR 209 is authority for the fact that I must make a positive finding as to whether the termination of Mr Dieter was harsh, or unjust, or unreasonable (or any combination thereof) and the grounds upon which I so find. 435 I do not consider that it has been established that misconduct took place in relation to the keys incident, for the reasons outlined extensively above, and therefore dismissal for that incident was harsh and unjust and unreasonable on a substantive basis. I also indicated above that I considered dismissal for the keys incident to be harsh and unjust on a procedural basis given the circumstances that occurred, the lack of any subsequent action against Mr Dieter or even advice that it had been recommended that the matter proceed to disciplinary action as well as the time it took for such action to take place. 436 As I indicated above I consider that the refusal of Mr Dieter to complete Normal Case Notes in certain circumstances falls within the applicable definition of misconduct. However as I have also indicated above I do not consider that the issue of Mr Dieter's refusal to do the NCNs, given the circumstances, should have been dealt with by way of a disciplinary process but rather should have been dealt with as a professional conduct issue through appropriate counselling by the appropriate senior person. Dismissal on the basis of that refusal, given the circumstances and Mr Dieter's unblemished record, was therefore substantively harsh, unjust and unreasonable. I also consider that given all the circumstances of how this issue was handled (again as referred to above this includes the absence of any counselling or formal warnings being issued and the time delay in dealing with the matter) the dismissal was harsh and unjust on a procedural basis. 437 Having found that the dismissal of Mr Dieter was in all the circumstances harsh, unjust and unreasonable on a substantive basis and harsh and unjust on a procedural basis I now turn to the appropriate remedy to be applied in this matter. 438 Mr Dieter seeks reinstatement as the primary remedy but if the Commission considers that impracticable, then maximum amount of compensation that may be ordered pursuant to s.89. Reinstatement is opposed by the respondent with reliance being placed on security issues and the risk Mr Dieter would represent at the Centre as a result of the keys and radio incidents. The employer also relies on the issues arising out of consideration of the inappropriate comments in his case notes, his attitude and the contempt he displayed toward Centre staff and the Department. However there was no suggestion made that Mr Dieter's actions constituted a repudiation of the contract of employment. 439 In considering the practicability of reinstatement I have been guided by the various principles enunciated in Re Loty and Holloway v Australian Workers' Union (1971) 71 AR (NSW) 95; Little v Commissioner of Police (No 2) (2002) NSWIRComm 52; St Vincent's Hospital Sydney Ltd v Harris (1998) 81 IR 173; Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; State of NSW v Seedsman (2000) 217 ALR 583; Rapp v Wauchope RSL Club Ltd 81 IR 116; Retail Traders Assn' (NSW) v Shop Distributive & Allied Employees Assn (NSW) (1990) 36 IR 38 and NSW Sales Representatives & Commercial Travellers' Guild v Berge Paints (1984) 9 IR 273. 440 I must say at the outset that I do not consider that that it is practicable to reinstate Mr Dieter to either his former position at the Frank Baxter Juvenile Justice Centre or to any other equivalent position at any other Juvenile Justice Centre. This is a matter that has caused me a great deal of difficulty and indeed presented me with somewhat of a dilemma in considering whether Mr Dieter could be reinstated given that I have agreed essentially agreed with Mr Easton that the matters for which he was to dismissed were minor matters that should never have proceeded to the disciplinary level they did and should not have resulted in Mr Dieter's dismissal. However I have to say that the attitude displayed by Mr Dieter towards other staff, particularly Ms Walker, and the obvious frustration/dissatisfaction/contempt he has for the Department which has been evident throughout the proceedings through various documents and the evidence, has been overwhelmingly persuasive in the conclusion I have reached that reinstatement is not practicable. 441 Frankly given the opinions expressed by Mr Dieter and his obvious disillusionment/dissatisfaction/frustration/low opinion/contempt with and for the Department I really wonder how he can realistically expect to either be reinstated or indeed how he can actually want to be reinstated. 442 Mr Dieter is his own worst enemy. He expressed to Ms Walker that he could be "difficult" and to Ms Mason that he could be "prickly". There is no doubt of that. But that is not something to be almost (but not quite) boasting about. Mr Dieter needs to take a good, long, hard look at himself and the way he conducted himself with others in the workplace and the Department. 443 I can understand Mr Dieter's anger and frustration with matters being raised that he had not been even aware were proceeding down a disciplinary path, months after the event, particularly in relation to what he considered bureaucratic time wasting nonsense. However the letter he sent to Ms Mason on 31 March in reply to her show cause letter was rude, dismissive and disrespectful to both Ms Mason and the position she held. The letter almost invited dismissal. The way he responded in the interview was intemperate and immoderate. He would have been far better off considering the material forwarded to him and responding in a well thought out and measured way (somewhat along the lines of his subsequent written submissions), attending the interview and conducting himself in a calm and patient manner and taking the opportunity of explaining himself without resorting to hyperbole. 444 Unfortunately by his actions Mr Dieter didn't just burn his bridges, he dynamited them. 445 As I indicated above Mr Dieter should not have refused to carry out this Walker's requests in relation to completing the Normal Case Notes in dispute and his e-mail exchanges to Ms Walker were inappropriate and rude. The Commission makes plain that the actions of an employee in repeatedly refusing a reasonable request made in accordance with a promulgated set of procedures and guidelines, even if the employee doesn't agree with them, cannot be condoned. 446 I am also concerned that there was no guarantee that he would follow reasonable directions in the future. He indicated to Ms Anderson, when asked if the Commission reinstated him he intended to always abide by the policies of the Department in the future - "Sorry that is an unanswerable question". And in his response to her subsequent question, still did not accept that Ms Walker had given him an instruction on 6 January 2005. 447 I also take into account his announced intention, in his 28 April e-mail to staff, to no longer provide Specialist Case Notes because Ms Walker had had the temerity of referring some of his SCNs to the Regional Director and they had hence been referred to Mr Houston's Unit. That referral was of course because of his inappropriate comments in those SCNs. That refusal was quickly nipped in the bud by Mr Buchanan but it is an indication that it would be problematic that Mr Dieter would in the future continue to determine when he considered it was reasonable to follow an instruction/direction as the basis for compliance. 448 Of greater concern are the actual comments he made in his case notes particularly the ones that he wrote after 9 January which were included in Ms Walker's 22 June memo and the attitude they display as referred to above. I have also expressed concern as to whether his negative and critical attitude would have affected or impacted on the juvenile detainees he was counselling. 449 I have also taken into account his adverse, and quite reprehensible actions against Ms Walker in the 28 April e-mail and his subsequent conversation with her about reporting her to the registration board. Although it is apparent from her affidavit that she no longer occupies the same position that she did at the time of his dismissal, I consider his actions displayed such a vindictive attitude that it reinforces my view that reinstatement is not practicable. 450 I acknowledge that Ms Walker considered him an excellent and experienced practitioner and that he had an unblemished work and conduct record prior to September 2005 and had lengthy service. 451 Whilst I consider it impracticable to reinstate Mr Dieter, given that I have found his dismissal was harsh, unjust and unreasonable it is appropriate to award monetary compensation to him. 452 Mr Dieter is a highly qualified and experienced registered Psychologist ( and indeed was considered by Ms Walker to be an excellent practitioner). He has specialised in counselling what could be only be described as troubled juveniles (at the extreme end of the scale). Given the well publicised need in the community generally for professional counselling services I would have thought that employment prospects certainly exist in the private sector. In addition the fact that he had been allowed to resign would not, as I understand it, prevent him seeking employment elsewhere in the public sector where his qualifications and experience could be put to good use. 453 There are no provisions in the Act as to what is the appropriate amount to be awarded in compensation where a termination is found to be harsh, unjust or unreasonable and reinstatement is sought but is held by the Commission not to be practicable. 454 In terms of Section 89 (5) the upper limit for monetary compensation is set at "an amount of compensation not exceeding six months remuneration of the applicant at the average rate received over the period of six months immediately before being dismissed". Section 89.5 is concerned essentially with the loss of earnings. Section 89.6 provides as follows: "When assessing any compensation hurdle, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration that would have been payable if the applicant has succeeded in obtaining alternate employment". 455 However, in D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 the Full Bench commented at page 363 that: "The power in the Commission to make a money order subject to the limitation on the quantum of compensation and the matters required to be taken into account by Section 89.6, is nevertheless within the Commission's discretion whilst the Commission is required to take into account the matters identified in Section 89.6 those matters are not necessarily to be reflected in any particular arithmetic or definitive way in the money order for compensation made". 456 As is my usual practice, I list the factors that I have taken into account (not in any particular order of priority or importance) in determining the amount of compensation contained in the Orders I issue in this matter as follows: � Mr Dieter had approximately 11 years unblemished service with the Department and had been located at essentially the same establishment for that period of time. � Mr Dieter is 55 years of age and has been unable to find alternate employment. Although I note there is no evidence as to any such attempts to find alternate employment. � I have found the dismissal of Mr Dieter was in the circumstances harsh and unjust and unreasonable on both a substantive and procedural basis. � The matters for which Mr Dieter was dismissed should not have been dealt with at first instance as disciplinary matters and there was an absence of any appropriate counselling. � However it is Mr Dieter's inappropriate actions and his inappropriate attitude that have led to the conclusion that reinstatement is impracticable. ORDERS 457 Pursuant to s.89 (5) of the Industrial Relations Act 1996, the Industrial Relations Commission orders that: 1. The respondents the Department of Juvenile Justice shall pay to George Dieter an amount of compensation equal to six months remuneration at the rate applicable to him prior to his dismissal. 2. The amount of compensation specified above shall be paid within 28 days. 3. The above orders take effect on and from today's date. Elizabeth Bishop Commissioner 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.