Industrial Relations Commission of New South Wales CITATION: Perks and Petroski and New South Wales Department of Juvenile Justice [2005] NSWIRComm 458 APPLICANT Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Hayden Perks and Mladen Petroski) PARTIES: RESPONDENT New South Wales Department of Juvenile Justice FILE NUMBER(S): 3124 and 3220 of 2005 CORAM: Sams DP Termination of employment - dismissal of two Youth Officers employed in juvenile justice centre - unfair dismissals - allegations of misconduct - incident involving four officers and detainee - annonymous informant - allegations contested - balance of probabilities - past history of detainee - failure to report incident - whether incident involved use of force - failure to report use of force - allegations against detainee - failure to report minor misbehaviour - respondent's policies and procedures - first hand evidence - preliminary interviews - reliance on handwritten notes - notes not provided to applicants - version of interviews contested - procedural unfairness - whether dismissals harsh, unjust or unreasonable - reinstatement sought. CATCHWORDS: Held, applicants' evidence not accepted - other corroborative evidence to be preferred - implausible and improbable explanations by applicants - detainee and officers engaged in an act of horseplay - detainee had not complained - no use of force - no misbehaviour by detainee - no basis to criticise investigation - answers during preliminary investigation more likely to be the truth - applicants less than truthful - conduct of proceedings - duty of fidelity to employment relationship broken - dismissals not harsh, unreasonable or unjust - applications for relief dismissed. Industrial Relations Act 1996 LEGISLATION CITED: Evidence Act 1995 Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Bankstown City Council v Paris (1999) 93 IR 209 Bigg & Anor v NSW Police Service (1998) 80 IR 434 Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66 Buckman v Burdekin (1998) 85 IR 415 Burke v McGirr (1995) 87 IR 54 Busways v Johnson (1994) 55 IR 255 Byrne and Anor v Australian Airlines (1995) 61 IR 32 Concut Pty Ltd v Worrell and Anor (2000) 103 IR 160 Day v Lumley Life Limited (1999) 90 IR 70 D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 Franklins Ltd v Webb (1996) 72 IR 257 Hosemans v NSW Police (No 3) [2005] NSWIRComm 161 Humphries and Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 Hunt v Hornsby Shire Council [2001] NSWIRComm 242 John Lysaght (Australia) Limited and Federated Ironworkers' Associaton of Australia, New South Wales Division & Ors (1972) AILR 517 CASES CITED: Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57 Little v Commissioner of Police (No 2) (2002) 112 IR 212 North v Television Corporation Ltd (1976) 11 ALR 599 NUW (on behalf of Wayne Kahn) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388 Oswald v NSW Police Service (1999) 90 IR 42 Outboard World v Muir (1993) 51 IR 167 Paris v Bankstown City Council (unreported) McLeay C, IRC5427 of 1997, 22 January 1999 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers' Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Price v Box Valley Pty Ltd (1999) 90 IR 480 Shop, Distributive & Allied Employees' Association v Jewel Food Stores (1987) 22 IR 1 Starr v New South Wales Police [2001] NSWIRComm 226 Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis and TNT Australia Pty Ltd t/as TNT Express [2002] NSWIRComm 46 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Wells v Commissioner of Police (2000) 100 IR 106 Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 Wilson v Department of Education and Training (2000) 100 IR 1 HEARING DATES: 10/10/2005; 10/11/2005; 10/12/2005; 10/13/2005 DATE OF JUDGMENT: 12/14/2005 APPLICANT Mr A Wilson Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales LEGAL REPRESENTATIVES: RESPONDENT Ms T Anderson of counsel Instructed by New South Wales Department of Juvenile Justice JUDGMENT: - 44 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 14 December 2005 Matter No IRC05/3124 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Hayden Perks) and Department of Juvenile Justice Matter No IRC05/3220 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Mladen (Michael) Petroski) and Department of Juvenile Justice Applications re unfair dismissal pursuant to s84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 458 1 The Cobham Juvenile Justice Centre ('Cobham') is a remand centre at St Marys which houses male detainees between the ages of 13 and 21. The Uralba Unit in Cobham is used to house detainees in transit and detainees with behavioural or social problems. In the early afternoon of 18 April 2005, an incident involving four employees at Cobham occurred in the cabin of a 17 year old detainee in the Uralba Unit. The 17 year old detainee will be referred to throughout this decision as 'KT'. 2 The next day, the incident was reported by an anonymous telephone caller to the Head Office of the Department of Juvenile Justice ('the respondent'). This call prompted an immediate investigation by the respondent and the subsequent dismissals of three casual Youth Officers, Mr Mladen (Michael) Petroski, Mr Hayden Perks, and Mr Albert Tevita. Mr Petroski and Mr Perks are the applicants in these proceedings. Mr Tevita, although summonsed as a witness in these proceedings, opted not to contest his dismissal and has secured alternative employment. A fourth more senior employee, Unit Co-ordinator Mr David Gatt has been transferred from Cobham and remains subject to the respondent's disciplinary proceedings in relation to the incident. 3 Both the applicants were dismissed for misconduct on 6 June 2005. The allegations against Mr Perks were: On 18 April 2005, at Cobham Juvenile Justice Centre, you assaulted detainee "KT" by entering his cabin on the Uralba Unit and holding him while Mladen Petroski drew with a red texta marker two lines on his forehead resembling eyebrows. On or about 18 April 2005, at Cobham Juvenile Justice Centre, you breached departmental procedures by failing to submit a Use of Force Report regarding the force you used on detainee "KT" on 18 April 2005 in his cabin on the Uralba Unit, which was to hold him forehead while Mladen Petroski drew with a red texta marker two lines on his forehead resembling eyebrows. 4 The allegations against Mr Petroski were: On 18 April 2005, at Cobham Juvenile Justice Centre, you assaulted detainee "KT" by entering his cabin on the Uralba Unit and holding his forehead and drawing with a red texta marker two lines on his forehead resembling eyebrows. On or about 18 April 2005, at Cobham Juvenile Justice Centre, you breached departmental procedures by failing to submit a Use of Force Report regarding the force you used on detainee "KT" on 18 April 2005 in his cabin on the Uralba Unit, which was to hold his forehead while you drew with a red texta marker two lines on his forehead resembling eyebrows. 5 Applications for relief from unfair dismissal, pursuant to Pt 6 ch 2 of the Industrial Relations Act 1996 ('the Act'), were lodged on behalf of the applicants by their Union, the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ('the Union'). 6 His Honour, Grayson, DP attempted to conciliate the matters on 1 July 2005, but no agreement could be reached. The matters were subsequently re-allocated to me for hearing. Prior to the arbitration, a helpful inspection of Cobham was undertaken in order to familiarise the Commission with the location of areas relevant to what occurred on the 18 April. The Incident 7 Both parties invited the Commission to accept their respective versions of what occurred immediately before and during the incident on 18 April. At this juncture, I will briefly outline their respective positions. 8 The respondent's case is that the officers entered KT's cabin, one held him down and the other, with a red texta marking pen, drew two lines on his face resembling eyebrows. It was not disputed that, at the time, KT's eyebrows had been shaven off and there had been general banter between him and the officers during the shift about his lack of eyebrows. 9 The respondent further submitted that, if the version of the incident proffered by the applicants was to be believed, then the four officers involved failed to: (a) complete a 'Use of Force' report; (b) record the incident in the 'Minor Misbehaviour' book, and (c) note the incident in the daily communication logbook. 10 It was said that these omissions plainly demonstrated that the incident had not happened as the applicants maintained. Rather, the four officers had engaged in an utterly inappropriate act of horseplay involving the assault of KT in a juvenile justice centre. In these circumstances, dismissal was entirely justified and appropriate, particularly because the applicants had lied about what had happened and sought to lay the blame on KT. 11 The respondent relied, in part, on notes taken by the primary investigator, Ms Marchant a day after the incident during interviews with all four officers. These interviews, particularly the interview of Mr Tevita, corroborate the account of the incident later given by KT and confirmed what the anonymous caller said he had observed on the day. 12 The applicants' version of the incident went something like this. Unit Co-ordinator Gatt had noticed that KT had been loitering around the office earlier in the day. Later, when a red texta pen went missing from its usual position on the top of the whiteboard in the office, Mr Gatt suspected KT as having stolen it. He and Mr Petroski entered KT's room while Mr Tevita and Mr Perks stood at the door. KT had the texta and wouldn't hand it over. Mr Gatt said he gently removed the texta from KT's hand and the officers then left the cabin. There was no struggle or force used. KT hadn't been held down and no one had drawn on KT's face. 13 It was further claimed that the investigation by the respondent was procedurally flawed and that KT's version of the incident was utterly unreliable having regard for his past criminal record and his proclivity to making complaints against persons in authority. As to Ms Marchant's notes, the applicants denied certain crucial comments attributed to them as recorded by Ms Marchant during the initial interviews. It was further said that the applicants were never shown Ms Marchant's notes in order to verify what she had written. 14 With these diametrically opposed versions of the incident, I am left with the following dilemma. Do I prefer the first hand account of three of the officers or the account of detainee KT, initially corroborated by Mr Tevita and supported by other documentary material from the interviews conducted with the applicants, including the evidence of the person who received the anonymous phone call? This is essentially the crux of this case. 15 At this point, I note that Mr Wilson conceded (quite properly in my view) that if the incident occurred as claimed by the respondent, the Union would have no cause to complain about the dismissals of the applicants. Thus, my determination of this matter hinges entirely on whose version of the incident I am to accept. In this regard, I turn now to the evidence. THE EVIDENCE For the applicants 16 Mr Mladen Petroski commenced employment with the respondent on 25 October 2004 and had consistently worked 10 shifts per fortnight. On 18 April, Mr Petroski worked the morning shift - 6.00am to 2.00pm. 17 Mr Petroski said that around 1.00pm, Unit Manager David Gatt informed him that he suspected that KT had stolen a texta from the office and that after lockdown they would need to enter his room and retrieve it. 18 At around 1.40pm, Mr Petroski and Mr Gatt entered KT's room. Mr Perks and Mr Tevita observed from the doorway. Mr Petroski said KT was sitting on his bed. There was no threat of violence or use of force as Mr Gatt removed the texta from KT's hand. In oral evidence, Mr Petroski said the whole incident lasted about a minute. KT was laughing and acting childish throughout. There were no threats or anger and no physical contact was made with KT. 19 Mr Petroski said he didn't write the incident up as many of the boys are periodically found with pencils or pens. Nevertheless, this was not permitted as pens or pencils could be used as weapons. In any event, Mr Petroski thought Mr Gatt (as the Unit Co-ordinator), would have written the incident up. In any event, it wasn't regarded as a serious matter. 20 Mr Petroski explained that the office wasn't locked as staff would be moving in and out during the shift. The emphasis was on vision and safety. Mr Petroski accepted that it was a serious breach of security for a detainee to gain access to the office. However, he said that if every incident was written up, and the detainee punished, 80 per cent of the detainees would be confined to their rooms every day. 21 Mr Petroski said that KT's eyebrows had been shaved about a week before he had entered Cobham. Mr Petroski described KT as very immature for his age. He preferred socialising with younger detainees. He was a compulsive liar and self confessed alcoholic. While he was not violent, he would often threaten to make complaints against staff. He was housed in Uralba for his own safety. Mr Petroski said KT enjoyed attention and would make up stories to get attention. He had once said he was in the Army, that he had stolen motorbikes and had bragged about how much he could drink. Mr Petroski believed KT stole the texta as a prank; for a laugh, just to demonstrate he could do it. 22 In cross examination, Mr Petroski agreed that there had been no Use of Force report made about the incident, no entry in the Minor Misbehaviour Book or the Log Book for the Uralba Unit. Mr Petroski accepted that while KT had stolen the texta, it was not a serious matter. He had been warned and that was it. 23 Mr Petroski was asked about a minor misbehaviour punishment (three hour confinement) he placed on KT two days after the incident. He said it was just a coincidence that it happened, even though this was the first time KT had been angry and swore at him. He said KT was being disobedient in order to show off to two new boys and it was necessary to punish him, so that good order would be maintained. While KT had been resistant on this occasion, he had not been on 18 April. 24 Mr Petroski referred to his interview with Ms Marchant on 20 April which lasted around 10 minutes. Mr Petroski denied drawing eyebrows on KT, although there had been talk amongst the detainees about it. KT was telling everyone about having no eyebrows as a means of drawing attention to himself. KT had joked about it himself. Mr Petroski denied telling Ms Marchant that they were going to draw on KT, but didn't do so. Mr Petroski said he was not given any notice of the interview, had no opportunity to have a support person present and he didn't see Ms Marchant's notes until after he was dismissed. In oral evidence, Mr Petroski said that Ms Marchant had said it would be a short informal interview. Two other managers, Mr Dowse and Mr Robinson were there, but neither of them said a word. 25 Mr Petroski said he didn't believe he was being interviewed by Ms Marchant about a serious matter. He had done nothing wrong and he was new to the workplace. Mr Petroski accepted there had been teasing of KT and Ms Marchant had noted that Mr Petroski denied anyone had touched KT. He denied telling Ms Marchant that there had been tickling and poking. He denied putting red texta marks on KT's face. He was asked about Ms Marchant's notes which referred to Mr Gatt grabbing KT's arm. Mr Petroski said he hadn't seen that. He was also shown Mr Perks' statement which said Mr Petroski had drawn on KT's face. He denied this had happened. When asked if the four officers held KT down, Mr Petroski said it would be difficult "to fit four big guys like us in a little room like that". 26 Mr Petroski agreed he was given 24 hours notice of the formal meeting with Mr Pell - a contract investigator. He agreed he had told Mr Pell "there was no drama we had a bit of a laugh". He had known KT very well and was always joking around and laughing. It was helpful for morale to keep a sense of humour, so long as it was within the boundaries. 27 In re examination, Mr Petroski described various examples of major and minor misbehaviour. There was no zero tolerance policy in respect to misbehaviour and each incident would be viewed and treated differently. 28 Mr Petroski had been working two jobs prior to his dismissal. His other job was at Australia Post. He has since increased his hours to 36, plus 4 hours overtime with Australia Post. However, he was anxious to return to his job as a Youth Worker, as he enjoyed working with detainees. Mr Petroski said he was shocked and depressed about the allegations made against him. 29 Mr Hayden Perks commenced work as a Youth Officer at Cobham on 25 October 2004. On 18 April Mr Perks worked for the first time in the Uralba Unit. Mr Perks had not worked with KT prior to 18 April, but had worked with him subsequently. Mr Perks had noticed during this first shift with KT, that he had no eyebrows. He could not recall if there had been joking around about this during the shift. 30 Mr Perks said that shortly before the end of the shift (at 2.00pm) he overheard a co-worker say that the detainee in Room 10 had a texta and they would need to remove it. Mr Perks said he got up from his desk and stood at the door of KT's room with Mr Tevita. This was normal practice during room searches for the removal of contraband. In oral evidence, Mr Perks agreed that he hadn't been asked to assist in retrieving the texta. However, it was a natural instinct to help. Mr Gatt and Mr Petroski entered the room and were standing between him and KT who was sitting on the bed. KT was joking and laughing. 31 Mr Perks deposed that, while his view was impaired, he didn't see anyone touch the detainee and no force was used. He couldn't recall who removed the texta. The whole incident lasted 30 seconds. At no stage did he observe any texta marks on KT's face as no one had drawn on his face. 32 In cross examination, Mr Perks said KT was tossing the texta from hand to hand and it was grabbed in flight. Later he agreed that Mr Gatt was reported to have said that "he grabbed his arm and took the pen out of his hand" and that this was inconsistent with it being caught in flight. 33 Mr Perks denied seeing anyone hold KT's arm or that he took the texta from his hand. He rejected Mr Tevita's comment at his intial interview that "we thought as a joke we would draw eyebrows on him". He further denied that Mr Tevita was holding KT down. He accepted, however that if a detainee had been grabbed in a forceful situation, a Use of Force report would need to be filled out. 34 Mr Perks claimed that on the day after the incident after KT was escorted back to the Unit by Mr Dowse, KT went to the office and said to Mr Gatt "you guys are in lots of trouble now". Mr Perks was then required to place KT in his room. When doing so, KT said "you're not going to believe what trouble you guys are in". Mr Perks said that KT was very excited that he made the complaint (against them). 35 Further, in cross examination, Mr Perks agreed that he was aware that any use of force or minor misbehaviours had to be recorded and messages were to be written for the next shift, about matters of concern. He agreed that breaching the security of the office and taking a texta were misbehaviours. However, he said that not every misbehaviour is written up, or every bit of information put in the log book. 36 Mr Perks acknowledged that if four Youth Officers had been involved in holding a detainee down and drawing eyebrows on him, it would be a serious act of misconduct and such persons were not fit and proper persons to be Youth Officers. 37 Mr Perks referred to his interview with Ms Marchant on 20 April . He said he had been given no notice of the interview, had no opportunity to have a support person present and had not been shown Ms Marchant's notes until the formal investigation. 38 Mr Perks specifically denied telling Ms Marchant that: (i) Mr Gatt and Mr Petroski said they would draw some eyebrows on KT; (ii) Mr Petroski had drawn two lines on KT's face above the eyebrows; (iii) the joking around continued with the detainee and Mr Gatt and Mr Petroski; (iv) he had placed his hands up to prevent KT from backing into him; (v) KT got up from his bed; (vi) the texta was on KT's bed. 39 Mr Perks said that since his dismissal he had found it difficult to obtain employment. He had sought employment with 15 employers, but had only had one months employment at Hornsby TAFE. Mr Perks said he was very committed to his job as a Youth Officer and was studying to gain a permanent position with the Department. He was extremely upset to have been dismissed. 40 Mr David Lawrenze Gatt commenced work with the respondent on 9 January 2002. As a result of the incident, Mr Gatt has been transferred to the Blacktown Community offices of the Department of Juvenile Justice pending a decision being made regarding his future. 41 Mr Gatt was acting Unit Co-ordinator in the Uralba Unit on 18 April. He deposed that towards the end of the shift on that day, he had noticed that a red texta was missing from its usual position on top of the whiteboard in the office. Mr Gatt suspected that KT had taken it, as he had recalled KT had been loitering around the office earlier in the day. In cross examination, Mr Gatt could not say if KT entered the office to take the texta, as no one saw him do it. However, KT wouldn't have needed to go right in, but could have just put his arm in the doorway. 42 Around 1.40pm, when the detainees were locked down, Mr Gatt said to the other Uralba Unit staff that he suspected KT had the texta and they would need to go to his room and search it if necessary, because of the shift change over. 43 Mr Gatt and Mr Petroski entered KT's room. Mr Perks and Mr Tevita stood outside. Mr Gatt said he asked KT if he had the texta. KT said no, but he was laughing and grinning. Mr Gatt noticed he was hiding it in his hands. Mr Gatt told him to hand it over, but KT kept laughing and grinning. Mr Gatt then decided to take the texta off him. Mr Gatt said he gently placed his right hand on KT's left arm and calmly removed the texta from KT's left hand in the manner of a handshake. KT continued to laugh and smirk. The whole episode had lasted around 30 seconds. Mr Gatt said, at no time, was there any need to use force, no texta came into contact with KT's face and there was no struggle. 44 Mr Gatt had worked extensively with KT for around two to three months during an earlier incarceration and around one month on this occasion. Although he was 18 years old, Mr Gatt said KT was very immature. 45 In oral evidence, Mr Gatt accepted that detainees are not permitted to have textas (although he didn't regard it as a weapon) or enter the office without permission. Mr Gatt further agreed that the definition of minor misbehaviour included: (a) disobeying rules or instructions; (b) unauthorised entry into a prohibited area; (c) possession of an unauthorised article; and (d) stealing 46 Mr Gatt conceded that there had been no entry made in the Minor Misbehaviour Book or the Use of Force Book. Mr Gatt could not recall if he had told Ms Marchant he should have made a Use of Force report. 47 Mr Gatt did not realise the seriousness of the matter when he was first interviewed by Ms Marchant. He thought it was an informal meeting. However, he conceded he had not been interviewed like this in three and a half years of employment. 48 Mr Gatt denied having told Ms Marchant that he grabbed KT's arm and that he should have made an entry in the Use of Force Book. He agreed however, that grabbing a detainee's arm would be defined as use of force - but he had not done so. 49 Mr Gatt claimed that KT had passed the marker from hand to hand and that he wasn't throwing it up in the air. Mr Gatt denied going to KT's room for 'a bit of fun' and that KT was held down while red lines were drawn on his face. Mr Gatt rejected Mr Tevita's alleged comments during Ms Marchant's interview with him that eyebrows had been drawn on KT while he was held down. Mr Gatt further denied taking the texta with him to KT's room. 50 Mr Gatt was asked about an apparent inconsistency with what he told the inquiry, ie "all four of us went together" and his evidence that only he and Mr Petroski were actually in KT's room. Mr Gatt said that there had been a lot of things that had not been said in the second interview, but had been said in the first interview. 51 Mr Gatt agreed that the staff had been joking around about KT not having eyebrows. Indeed, KT had been joking about it himself. He didn't believe the joking around was inappropriate, having regard for KT's immaturity and history. 52 In re examination, Mr Gatt said that there were many forms of alternative options to punishment for misbehaviours. There were no mandatory rules or guidelines. He took the matter no further at the time, as each situation was different. 53 Mr Gatt stated that the Unit Co-ordinator's Log Book recorded each day's significant events. It was not as detailed as the Unit Log Book which contains more detailed case notes on each detainee. 54 Finally, Mr Gatt praised the work, dedication and motivation of Mr Perks and Mr Petroski. He regarded them as highly competent Youth Officers. KT's Evidence 55 It is relevant that I quote, in full, the record of interview KT had with Mr Dowse and Mr Robinson the day after the incident: Q1: KT, my name is Kevin Dowse, Acting Assistant Manager here at Cobham, this is Ian Robinson, also Acting Assistant Manager here at Cobham. Your name is KT and your date of birth is eleventh of the second, nineteen eighty seven, is that correct? A1: Yep Q2: KT, we are just going to interview you regarding an alleged incident that happened on the Uralba Unit yesterday involving staff, there were some accusations made, can you just go through what happened for us? A2: Yesterday four staff members come into my room, and drew on my forehead, just mucking around, that's it, then went out. Q3: When you say drew on your forehead, KT, what do you mean by that? A3: They just come in, held me down and drew on my head Q4: What part of your head? A4: Just, my forehead. Q5: What did they draw on there? A5: They tried to draw me new eyebrows. Q6: Why would they be drawing you new eyebrows? A6: Because I don't have any. Q7: Why's that? A7: Because my step-dad shaved them off. Q8: Prior to coming in here? A8: Yeah. Q9: How long have you been in Cobham, KT? A9: Just over a week. Q10: Can you tell us who the staff members were that came into your room? A10: Um, Michael, Dave, some big Tongan lad, and some guy who I don't know, someone new who worked there yesterday. The only staff members I knew were Dave and Michael. Q11: How did you feel when they were drawing on your head? A11: I was laughing. Q12: Were you? A12: Yeah. Q13: So you weren't hurt at all? A13: No. Q14: So you have nothing else to add to that? A14: No. Q15: Thanks, KT. 56 KT gave evidence under summons. He is now employed and his employer was aware he was required to attend the Commission to give evidence. KT insisted that when he was interviewed about the events of 18 April, he had been truthful. 57 During cross examination, KT agreed that he had a history of making false allegations; although he insisted this was in the past. He was shown Police reports which indicated that, on a number of previous occasions, he had made false 000 calls. He claimed he got excited by the attention he attracted by calling for the emergency vehicles. He "got kicks" out of doing it. He was also asked about another occasion he had claimed to be in the Army Reserve while attempting to steal an earthmoving vehicle. At the time he had also been found in possession of credit cards which he had stolen and he was under the influence of alcohol. KT agreed he had a history of telling lies and engaging in criminal behaviour. 58 KT was referred to his interview with Mr Dowse and Mr Robinson, although he couldn't recall the second interview with Mr Pell. KT had told Mr Dowse that he hadn't been hurt during the incident on 18 April. There had been no struggle and he had been laughing with the officers until they had put the texta to his head. He had screamed "no no, don't, don't". He explained that he hadn't been screaming for help, but had said it in a laughing way. KT said the officers had been mucking around outside prior to entering his room. 59 KT said he had learnt later that it was alleged that he had stolen the texta. He denied doing so. He claimed that the officers had entered his room with the red texta and drew on his face, although he couldn't see what had been drawn. The whole incident lasted about two minutes. He said the officers had held him down and that while he was struggling, it was more like "wrestling" with them. He wasn't aware if he had sustained bruising or reddish skin, but he was forced down. 60 KT agreed he had made complaints against officers after 18 April, but hadn't enjoyed doing so. KT was subsequently transferred from Cobham to Frank Baxter Juvenile Justice Centre. KT denied that he had told a "bunch of lies" and said his version of what happened was the same as he told Mr Dowse the day after the incident. 61 Mr Albert Tevita is now employed by the Department of Education and Training. He also gave evidence under summons. 62 Mr Tevita was questioned about his interview with Ms Marchant on 20 April. Mr Tevita confirmed that he had told Ms Marchant the officers on duty on 18 April had joked with KT about him not having eyebrows. Mr Tevita had said "what if I bring some eyeliner in and draw some eyebrows on you". He also said that "we thought for a joke we'd draw some eyebrows on him". At this point in his evidence, (although it may have not been strictly necessary) Mr Tevita sought and was granted a certificate under s128 of the Evidence Act. 63 Mr Tevita continued and said that he had told Ms Marchant that "we went in and tried to draw some eyebrows on him. I was holding his legs and Michael was holding his arms. This occurred on the bed". Mr Tevita said that KT had been joking around and laughing at the same time. Mr Tevita said that when he first went into the room, the texta was already in there and Mr Gatt was trying to take it from KT. KT had egged them on to come into his room. He had told Ms Marchant that somebody had drawn two lines on KT's face. 64 In cross examination, Mr Tevita was referred to what he had told Mr Pell at the second interview. On this occasion, he had said Mr Gatt noticed the texta was missing and they went into KT's room and grabbed the texta from him. The whole incident lasted about a minute. Mr Tevita said he told Mr Pell he was unsure of what he had told Ms Marchant and wasn't in a position to say precisely what he had told her. He claimed he had difficulty remembering what had happened and only had a vague recollection of what he had told Ms Marchant, or indeed what had happened six months previously. Mr Tevita then appeared to contradict his earlier evidence about what he agreed he had told Ms Marchant. He said he felt compelled to agree with Ms Anderson's earlier questioning because of the existence of Ms Marchant's notes. 65 (Mr Tevita's evidence was adjourned to the next day, but he was unwell and did not attend and was not required to complete his evidence). Respondent's Evidence 66 Mr Paul Houston is the respondent's Manager for Employment Relations and Professional Conduct. His affidavit was uncontested and contained various documents relating to the investigation of the incident. These included: 1. the letters of dismissal; 2. the Investigation Report, including transcripts of the formal interviews; and 3. the respondent's Code of Conduct 67 Ms Jayne Marchant is an Assistant Manager at Cobham and was appointed to this position in late 2002. 68 Ms Marchant conducted interviews over one and a half hours with the four officers on 20 April, in company with Mr Robinson and Mr Dowse. She made handwritten notes of the interviews and typed up a report of the interviews immediately afterwards. Mr Robinson and Mr Dowse signed the record of interviews as a correct account of what had been said. 69 Ms Marchant had been asked to conduct the interviews by the Acting Manager, Mr Rob Ferguson, following an anonymous telephone call which disclosed that the caller had witnessed staff drawing eyebrows on KT. She had asked if it was an investigation, because such interviews are tape recorded. However, Mr Ferguson said it was just to find out if anything had happened with KT. 70 Ms Marchant deposed that Mr Gatt had acknowledged during his interview that he made physical contact with KT and had not completed a Use of Force report. Mr Gatt also had said KT had taken the texta, but he had not filled out a Minor Misbehaviour report. 71 I have earlier referred to the applicants' evidence in which they denied certain parts of the interviews Ms Marchant conducted with them. I won't repeat what Ms Marchant records in both her handwritten notes and typed records of interview as she was asked about them in oral evidence. 72 During her evidence, Ms Marchant agreed she had done all the talking in the interviews. She denied that her principal concern was that staff had shaved off KT's eyebrows. Rather, the concern has been that eyebrows had been drawn on the detainee's face. 73 Ms Marchant acknowledged that she had not shown the officers her hand written notes or the typed up notes and the officers had obviously not verified the contents at the time. However, she believed her notes accurately reflected what had been said during the interviews. Ms Marchant said that at the time of these interviews, she had no involvement in these matters, had had no contact with KT and hadn't known Mr Dowse had interviewed KT the day before. 74 Ms Marchant denied that Mr Petroski told her that Mr Gatt gently retrieved the texta. He had said Mr Gatt grabbed KT's arm and got the texta out of his hand. She had asked Mr Gatt if he had filled out a Use of Force report and he had said no, but acknowledged that he should have. Mr Gatt had said that Mr Petroski had not touched KT at all. 75 Ms Marchant said that Mr Petroski had told her that he had teased KT about not having eyebrows and that he was going to draw them on him, but he didn't. She added that Mr Petroski had told her that there was a bit of poking and tickling. 76 Mr Perks had said that either David (Gatt) or Michael (Petroski) had said "we should draw some eyebrows" on the detainee. Mr Perks also claimed that he had protected himself when KT stood up and had backed into him. 77 In respect to Mr Tevita's interview, Ms Marchant said he had told her that: (a) all the team were mucking around with the detainee about his eyebrows; (b) some eyeliner should be brought in to draw eyebrows on him; (c) at lockdown they decided, as a joke, to draw eyebrows on him; (d) they went in to draw eyebrows on him; and (e) he had held KT's legs and Mr Petroski had held his arms. Ms Marchant denied putting any suggestions to Mr Tevita or that he had just responded by answering, 'yes'. 78 Ms Marchant claimed Mr Perks had told her that Mr Petroski had drawn two lines on KT's face and that the texta was on the bed, not in KT's hands. 79 Ms Marchant agreed that there was no zero tolerance policy applying to all misbehaviours, but it did apply to dangerous items, which included a texta. She said confinement was not the only option for minor misbehaviours; cautions or warnings were available options. Nevertheless, a note should be recorded somewhere where a minor misbehaviour has occurred. A note should have been made about a detainee disobeying rules, taking and having a texta without permission and staff retrieving a texta from a detainee. 80 Ms Marchant accepted that in respect to log books, staff have a discretion as to what is recorded. These however, are separate to the case management systems. 81 Mr Kevin John Dowse is a Unit Manager at Cobham and on 19 April 2005 was acting as an Assistant Manager. Mr Dowse's affidavit had annexed to it, the tape recorded interview with KT of 19 April 2005, a letter from Justice Health of 20 April advising that KT had shaved eyebrows, the signed typed record of interviews conducted by Ms Marchant and the Departments Use of Force policy. I need not extract these details. 82 In oral evidence, Mr Dowse was asked about his involvement in the interviews with the applicants. He indicated that he had made no handwritten notes during the interviews, but had been provided with the typed up records that afternoon or the next day. While he believed they were accurate, he could not say the notes were absolutely accurate. 83 It was Mr Dowse's evidence that he specifically recalled the following having been said at the interviews: (i) Mr Gatt had said he should have completed a Use of Force Report and that he had grabbed KT's arm. (ii) Mr Petroski had said they were going to draw eyebrows on KT, but didn't. (iii) Mr Perks had said that Mr Petroski had drawn two lines on KT's face. (iv) Mr Tevita had said staff were joking about KT's eyebrows and that eyeliner should be brought in to draw on the detainee's face. (v) Mr Tevita had said that, as a joke, they should draw eyebrows on KT and that he (Mr Tevita) had held KT's legs down. (vi) Mr Tevita had said that the two lines were drawn on KT's face, and there had been poking and tickling and KT had been held down. 84 Mr Dowse said that Mr Tevita had not appeared confused during his interview. He described what had happened and did not use 'yes' or 'no' answers. 85 In respect to the interview with KT, Mr Dowse said he could not recall any scratch, bruising or blemishes on KT's face. Mr Dowse said that if a detainee refused to hand over an item, then a Use of Force Report should be completed. If the item is handed over or lifted off the hand, a Use of Force Report would not be necessary. 86 In regard to the Minor Misbehaviour Policy, Mr Dowse agreed there were a range of punishments available at the staff's discretion. The objective is to communicate and work with detainees in order to modify behaviour. However, Mr Dowse believed a detainee entering the office and stealing a texta was a serious matter requiring at least a notation in the log book. 87 Mr Dowse said that when the matter was initially reported, there had been a belief that the staff had been involved in shaving off KT's eyebrows. At the time, Mr Dowse had sought advice about what the admission staff may have noticed. This was why he asked for the letter from Justice Health. 88 Mr Ian Robinson was also acting as an Assistant Manager on 19 April. Attached to his affidavit were the same documents as Mr Dowse had included. Mr Robinson said he had signed the typed up records of interviews as he believed them to be accurate and a true account of what had been said during the interviews. 89 In cross examination Mr Robinson was asked the same questions as Mr Dowse concerning disputed comments Ms Marchant had recorded in her notes. He recalled the same comments that Mr Dowse referred to (see para 83). 90 Mr Robinson had also attended the interview with KT. Like Mr Dowse he had not noticed any marks on KT to indicate a struggle had taken place. 91 Mr Robinson said a handshake would not constitute use of force. Use of force would be required if a detainee put up any resistance. If he had just handed over the texta, no report would have been necessary. Mr Robinson was asked about what Mr Gatt had said about removing the texta from KT and said it would constitute a use of force. 92 Mr Robinson agreed with Mr Dowse that misbehaviours are punished in various ways according to the discretion of staff. However, a texta would be regarded as a dangerous item. He also agreed that communication and negotiation is encouraged. Staff also have discretion as to what is considered important to record in the unit log book. 93 Ms Loretta Allen-Weinstein is a project officer in the respondent's Head Office. She answered the anonymous phone call which had been directed to the office of Mr Peter Muir, Assistant Director General Operations. Ms Allen-Weinstein recalled the conversation as follows: Caller: I was looking for Peter Muir. Me: He is not in the office at the moment. Would you like me to take a message? Caller: Well if he cares about the kids like he says he does I'd like to talk to him about an incident at Cobham. Me: In this unit we all care about the kids so I am happy to talk to you about your issue and get Peter to get back to you. Caller: No, this is an anonymous phone call. Me: Please feel free to give me your name. It will be kept confidential and I will get Peter to get back to you. Caller: There is no way I am going to tell you my name. Me: You should not be concerned to give me your name. Caller: I am a casual worker and if I tell you my name I won't get any more shifts. Me: I am sure we can work around that. Caller: No, I will not tell you my name love. Me: Okay, what would you like me to pass on to Peter? Caller: I was on shift yesterday and I was walking past a unit and I saw some workers who I have seen doing stuff before and they should not be working here. Me: Fair enough. What were they doing? Caller: There were a few of them who had a kid on the floor and they were using a texta to paint eyebrows on him. The kid was struggling and no one was doing anything about it. I am sick of staff treating the kids like "shit". Me: Are you sure you don't want to tell me who you are so I can get Peter to contact you? Caller: No I am not going to tell you. Me: Are you able to give me any more details? Caller: You only have to look for the kid with the eyebrows and you will know who was on shift at the time. Me: Thank you. I really appreciate workers contacting us when these issues arise in the workplace. I assure you that as soon as Peter gets in I will relay this information. Caller: Alright love. SUBMISSIONS For the applicant 94 After outlining the details of the misconduct alleged against the applicants, Mr Wilson noted that the applicants and Mr Gatt all strenuously deny the allegations made against them. In these circumstances, he submitted that the onus of proof rests on the respondent to establish, on the balance of probabilities, that the misconduct had occurred, see Starr v New South Wales Police [2001] NSWIRComm 226. Nonetheless, Mr Wilson conceded that if the misconduct had occurred, then dismissal would be warranted as juvenile detainees have a right to be incarcerated in an environment free from assault and humiliation. 95 Mr Wilson argued that the report of Mr Pell contained fundamental errors, including the use of leading questions and giving greater weight to the indirect evidence of mangers rather than the direct evidence of the officers. He submitted that the evidence of Messrs Petroski, Perks and Gatt was consistent on all fundamental points; their evidence was given "naturally and in the ordinary way". 96 Mr Wilson said that despite there being no record of the inspection of KT's room, this did not mean the applicants' evidence was wrong. There was evidence that staff had a certain degree of discretion in such matters and this discretion, rightly or wrongly, had been exercised by them at the time. 97 Mr Wilson submitted that KT's evidence was entirely unreliable. He had a history of making complaints and telling lies. His memory wasn't good - he couldn't even remember his second interview with Mr Pell. Much of his evidence contained inconsistencies. For example, there was no other evidence of a 'struggle' with the officers. At one point, he said he had been laughing and at another, said he had been screaming. 98 Mr Wilson put that Mr Tevita agreed with everything put to him by Ms Anderson, but then changed his story in cross examination. He had acknowledged his memory was poor. Thus, Mr Tevita was an entirely unreliable witness. 99 As to the respondent's evidence, Mr Wilson claimed that as it was indirect evidence, it should be given lesser weight. Notes of the interviews had not been independently verified, nor were they provided to the applicants. Ms Marchant's notes merely reflected her memory of what was said. The evidence of Ms Allen-Weinstein was only evidence of a phone call, and could not be evidence of what the caller had witnessed. It should be given little or no weight. 100 Mr Wilson submitted that Mr Gatt had reasonable cause to suspect KT had taken the texta as he had been loitering around the office earlier in the day. As KT was relatively tall, he could have easily reached in and taken it. 101 Finally, Mr Wilson sought the reinstatement of both the applicants with full back pay since dismissal. He provided details of the applicants' earnings in alternative employment since their dismissals. For the respondent 102 Ms Anderson of counsel submitted that even though KT had participated in the prank in his room, and saw it as a 'bit of fun', it must be remembered that the incident occurred in a detention centre where detainees often engage in attempts at self harm. These officers were in a position of power and their joking around about KT's lack of eyebrows, was, in itself, a form of humiliation. 103 She stressed that the applicants displayed a gross error of judgement and had lied about it in order to have the matter blamed on the detainee. As a result they have lost any entitlement to be trusted to work in a detention centre. Mr Tevita was the only one to tell the truth, until he realised how serious it was. 104 Ms Anderson rejected the claim that Mr Pell had asked KT leading questions. KT's evidence was honest and straightforward. He didn't deny his past and had no reason to lie about this matter. His reference to 'wrestling' must be seen in light of his other evidence of being held down and struggling. There was nothing inconsistent with his use of the word 'wrestling'. In any event, KT's account was entirely consistent with Mr Tevita's first interview. KT had not been yelling out or screaming in fear. It had been all part of the joking around. Moreover, he'd made no complaint about the incident, which one might expect if he was truly in fear of being hurt. Ms Anderson submitted that KT's memory was 'pretty good' in that he had described the physical appearance of the officers who had been in his room, even if he didn't know their names. 105 Ms Anderson submitted it was just incredible to imagine that Ms Marchant had 'got it all wrong' and two other senior staff had also 'got it wrong' during the interviews with the applicants and the other officers. Ms Anderson gave examples of the inconsistency in the applicants' evidence, whereas Ms Marchant's notes were virtually contemporaneous with the incident. Moreover, the other circumstantial evidence all points to the misconduct having occurred. For example, nothing was written down anywhere - not in the minor misbehaviour book, the log book or the Use of Force report. CONSIDERATION AND CONCLUSIONS Relevant principles 106 In a case of summary dismissal for misconduct four questions usually arise for consideration by the Commission. Firstly, was the conduct alleged against the dismissed employee/s proven? Secondly, if the misconduct was proven, did the seriousness of the misconduct justify summary dismissal? Thirdly, did the conduct constitute a fundamental and wilful repudiation of the contract of employment by the employee/s? Fourthly, were other mitigating factors taken into account by the employer? I shall discuss each of these questions in the context of the relevant authorities of the Commission. 107 In some cases of summary dismissal the employee will contest the allegations which led to the employer's decision to terminate the contract of employment. Thus, the respondent here is required to prove the allegations against Mr Petroski and Mr Perks. To do this, the Commission must itself be satisfied that the respondent's onus to do so has been discharged and make findings, on the balance of probabilities, that the misconduct had, in fact, occurred. This is the situation which arises in this case. 108 The celebrated authority for the above proposition is found in Pastrycooks Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers' Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70: It is undoubted, in my view, and as Mr Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union: see Re Barrett and Women's Hospital, Crown Street (1947) AR (NSW) 565; Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) (1949) AR (NSW) 868; Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 at 279 and Homebush Abattoir (1966) AR (NSW) at 386. However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson (1957) AR (NSW) 547 at 552, 553; North v Television Corporation Ltd (1976) 11 ALR 599 at 602; Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35. To the extent that Mr Newall submitted to the contrary, his submission cannot stand. The approach as to this shifting of the burden of proof received conceptual support in the judgment of Dixon J, as he then was, in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643, and in that passage from his Honour's judgment which said at 644: Again, it is a general principle that absence of default or wrongdoing is presumed and proof is required when its absence is made a qualification of a right. It is in accordance with principles to regard fault as a particular exception defeating the right only when alleged and proved. The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it. In support of his submission on onus, Mr Walton referred to the judgment of Dey , J. in Re Wentworthville Leagues Club Ltd (1976) 18 AILR 355, in which his Honour clearly held that the necessity for proving misconduct lay upon the party setting it up, namely the employer, and even though the union had the responsibility for establishing a proper case for reinstatement. I respectfully agree with his Honour's conclusion, it being entirely consistent with well established authority. 109 The above principle was neatly summarised by a Full Bench of the Commission in Humphries and Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 at p86: …where an allegation of misconduct is raised as a defense or as a justification for a particular course of action, the legal burden shifts to the respondent employer (although the onus to be discharged in unfair dismissal proceedings is to establish to the satisfaction of the Commission according to the civil standard of proof, that the dismissal was harsh, unreasonable or unjust): Pastrycooks Case at [83] - [84]) and Price v Box Valley Pty Ltd (1999) 90 IR 480 at 483. See also other Full Bench authorities on the subject in Wang v Crestell Industries Pty Ltd (1997) 73 IR 454; Shop, Distributive & Allied Employees' Association v Jewel Food Stores (1987) 22 IR 1; Franklins Ltd v Webb (1996) 72 IR 257, Price v Box Valley Pty Ltd (1999) 90 IR 480 and Bigg & Anor v NSW Police Service (1998) 80 IR 434. Was the dismissal too harsh a penalty? 110 In other cases of summary dismissal, the employee will admit to the misconduct and plead that dismissal was too harsh a penalty. Other mitigating factors may be taken into account. 111 In Byrne and Anor v Australian Airlines (1995) 61 IR 32 the High Court said a termination of employment "may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted" (p72). In Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 at p302 the Full Commission said: The conciliation commissioner, therefore, in our view of his decision, was concerned that the ultimate sanction of termination of employment was too severe a penalty. That approach was properly open to the conciliation commissioner, notwithstanding his favourable finding as to the action of the appellant, is supported by the decision of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233 as follows : I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J in Loty's case [1971] AR (NSW) 95 at 99, the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. See also Little v Commissioner of Police (No.2) (2002) 112 IR 212, Busways v Johnson (1994) 55 IR 255 and Wells v Commissioner of Police (2000) 100 IR 106. 112 From these authorities, it is plainly open for the Commission to review the decision of the employer and determine that a particular dismissal was too severe a penalty. Notwithstanding this observation, the Commission in this case, was not asked to consider whether the dismissals were too severe a penalty. Rather, the Commission was invited to conclude that the allegations were untrue. Thus, this second question does not arise in this case. Repudiation of employment contract 113 While the allegations against the applicants were described as misconduct; the additional words "wilful" or "serious" were not used. However, in my opinion, where an employee has been dismissed for misconduct, the conduct must be such as to constitute a repudiation of the contract of employment by the employee. There must be disclosed a wilful and deliberate intent by the employee which strikes at the heart of the employment relationship. 114 This principle was discussed in the following four cases: In North v Television Corporation Ltd (1976) 11 ALR 599, Franki J said at p616: It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions. The 1959 English case referred to makes it plain that an act of disobedience or misconduct (justifying dismissal) requires also that the disobedience must be " wilful ": … I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions. (P288). Hungerford J in Day v Lumley Life Limited (1999) 90 IR 70, described the employment relationship as a serious contractual relationship involving rights and obligations on both sides: The employment relationship, I have to say, is a serious relationship with important incidents for both parties to it. It is a consensual relationship based on contract and with respective rights and obligations. It should not, I think, operate, or to be so seen, in practice in a way, which permits one party, here, the employer, to act in a one-sided manner contrary to the legitimate expectations and understandings of the other party, here the employee, and particularly where such action damages or detrimentally affects the career interests of the employee. Employees have a corresponding duty to act with fidelity and good faith. In Concut Pty Ltd v Worrell and Anor (2000) 103 IR 160, his Honour, McHugh J, dealt with the ordinary relationship of the employer and employee at common law: The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law: "[c]onduct which in respect of important matters is incompatible with the fulfillment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. ... [T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises." In the present case, the findings at trial went beyond mere uneasiness as to the future. They necessitated, or at least warranted, a conclusion that the "confidence" essential to the relationship of employer and employee had been destroyed. Instead of pursuing the interests of the company and its shareholders, the employee had pursued his own private interests. Not only was the employee in breach of his duty of fidelity and trust owed to the employer, he had remained in breach of that duty to the date of the trial. Until that time he had not accounted for the benefits wrongly appropriated by him. Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial was determined against the employee. He was then subject to the employer's counter-claim for an order to make a refund. Such order was duly made at trial. It was not contested on appeal. Given his senior status in the company's service and the nature and extent of the misconduct disclosed in the evidence and accepted by the primary judge, it was open to him to find that the employee had undermined the confidence essential to the ongoing relationship of employment. Prima facie, this had afforded a legal justification for the employee's summary dismissal. It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal. See also Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66; Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis, and TNT Australia Pty Limited, trading as TNT Express and Hunt v Hornsby Shire Council [2001] NSWIRComm 242. 115 If the incident on 18 April happened as the respondent contends, did it constitute a wilful repudiation of the contract of employment by the applicants? That question was answered, correctly in my view, by the applicant's own Union representative. Mr Wilson accepted that if the applicants had held down a detainee and drew lines on his face that such conduct justified their dismissals. Of course, Mr Wilson strenuously argued that the incident did not happen as was claimed by the respondent. I shall come back to this matter shortly. Mitigating factors 116 It is generally accepted that an employer may take into account an employee's past conduct or warnings when making a decision to dismiss the employee. Authority for this proposition is found in John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (1972) AILR 517: The union's argument in relation to this matter is not easy to understand. It suggests that although the record is not a satisfactory one, it should be overlooked because the company, except for a warning and a suspension here or there, allowed it to run on and in effect condoned or waived it. It further says that the record has to be looked at in the light of the fact that there is admittedly a good deal of absenteeism generally in the plant. If one were to take this argument to its full extent, it would involve the union in saying that Mr York should have been dismissed long ago. It is no doubt possible for the company to waive particular acts of misconduct that would otherwise justify dismissal without notice. These particular acts could not subsequently be used for this purpose once a decision was made not to rely on them. The act of misconduct however does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be a relevant factor to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about dismissal. This will be all the more so where, as here, the dismissal is upon notice. 117 The above principle may also be stated in the alternative, as McLeay, C did in Paris v Bankstown City Council (unreported) IRC5427 of 1997, 22 January 1999: It is clear that no account was taken of mitigating circumstances, either associated with the misconduct (namely, that the applicant's supervisor was the instigator of the misconduct) or the employee's work record (which showed a good record of over forty years). It has long been accepted that the whole of an employment relationship is relevant to a question of dismissal (see John Lysaght (Australia) Lts v FIA; Re York (1972) AILR 517 per Sheppard J). In my view, it is an unfair to ignore a good work record of long standing as it would be to ignore incidences of previous misconduct. I note the comments of the Full Commission [Cullen J, Schmidt J and Tabbaa CC] in Water Board v Water & Maritime Industry Union, matter no IRC 1531 of 1993, 25 November 1993: Whether the circumstances of a particular dismissal are harsh, unjust or unreasonable under Part 8 of Chapter 3 of the Act, involves a consideration of all the relevant circumstances. These matters include both the position of the employee, including his employment history and the position of the employer. An employer may need to consider a particular employee's impact on other employees, as well as other matters. The applicant in this case had a long standing good work record which should have been taken into account. 118 Other mitigating factors may include, inter alia: (a) the age of the employee; (b) the experience of the employee; (c) whether the employee has been treated differently to other employees who may have acted similarly; and (d) the employee's contrition or regret for his or her actions Meaning of harsh, unreasonable and unjust 119 Where the employer discharges the onus to prove allegations made against an employee, it is then incumbent on the employee to discharge the onus of satisfying the Commission that his/her dismissal was harsh, unreasonable or unjust within the meaning of Pt 6 ch 2 of the Act (see Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273). A finding of whether a particular dismissal is harsh, unreasonable or unjust is a mixed question of fact and law. 120 It is now well settled that each of the words - harsh, unreasonable and unjust - have their own discrete meaning and not all three descriptions of a dismissal are necessary for a finding of unfairness. In other words, a particular dismissal might be found to be 'harsh' but not 'unreasonable' or 'unjust'. This principle arises from the oft-quoted authority in Byrne & Anor v Australian Airlines (1995) 61 IR 32 where the expression "harsh, unreasonable or unjust" was considered in an Award clause. In their joint judgment McHugh and Gummow JJ said at p72: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 121 The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 where a Full Commission said: First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair') to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session ( Perrignon , Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 Cahill J (delivering a separate judgment) said: The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'. It has been said that those words are a 'tautological trinity' ( Davis v General Transport Development Pty Ltd ) [1967] AR 371) but we prefer to take the view that there is a perceptible difference between the meaning of the term 'unfair' and that of the terms 'harsh' and 'unconscionable'. What is unfair may not be so unfair as to be 'harsh'. But, whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power. In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made. 122 A Full Bench authority reaffirming the distinction between the three words, and requiring the Commission to make a positive and specific finding on a dismissal is to be found in Bankstown City Council v Paris (1999) 93 IR 209: The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made. 123 More recently, the Full Bench in NUW (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388 said at paras 64 and 65: Finally, we stress the importance of a Member of the Commission at first instance in s 84 proceedings dealing expressly and specifically with the tripartite statutory test. As the Full Bench observed in Outboard Marine Pty Ltd T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183, in order to avoid the possibility of misunderstanding or error, the tribunal should state explicitly the basis upon which it is considered that a dismissal was unfair or not unfair. That is to say, whether the dismissal was or was not harsh, unreasonable or unjust. In the present case, Cambridge C found that the dismissal of the applicant was not harsh, unreasonable or unjust and we consider an examination of the Commissioner's reasons support his conclusion. It would have been preferable, however, if the Commissioner had spelt out in clear terms why, under each limb of the tripartite test, the dismissal was not an "unfair dismissal". Procedural Fairness 124 As the Commission was invited to consider allegations of procedural unfairness, I turn now to discuss that question in the context of these unfair dismissals. 125 A Full Bench decision of this Commission stressed the importance of ensuring that an employee is afforded procedural fairness in the process leading up to a decision to dismiss an employee following allegations of serious misconduct. In Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited the Full Bench said at para 118: This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have travelled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious. 126 These observations reflect the statutory instruction found at s88 of the Act and the relevant authorities which identify the matters the Commission may take into account when determining an unfair dismissal claim. These matters include, but are not limited to, whether, (i) a reason for dismissal was given. (ii) any reason given had a basis in fact. (iii) an applicant was given an opportunity to make out a defense or give an explanation of his or her behavior. (iv) any warning of unsatisfactory performance was given. (v) the applicant sought but was refused reinstatement or reemployment. It is important to note that the Commission may take other matters into account which it considers relevant (s88(f)). 127 In Byrne & Anor v Australian Airlines, the High Court, concluded that "it is clear that the use of an unfair procedure may result in a dismissal being 'harsh, unreasonable or unjust.'" To this authority may be added the weight of a number of Full Bench decisions of the Commission. In Antonakopoulos v State Bank, the Full Bench said at p389: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. and later, at page 390: While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust . 128 The above reference to Buckman is Buckman v Burdekin (1998) 85 IR 415. In that case, the Full Bench said at p418: Section 88 of the Act contains a number of matters which may, if appropriate, be taken into account in considering whether a dismissal was harsh, unreasonable or unjust. There is, of course, no obligation imposed by the Act upon employers to give an employee a warning prior to effecting a dismissal. However, a failure to give prior or timely warnings is a matter which properly may be taken into account as part of the consideration of general issues of substantive and procedural fairness. See also Wilson v Department of Education and Training (2000) 100 IR 1; Byrne & Anor v Australian Airlines ; Burke v McGirr (1995) 87 IR 54; Oswald v NSW Police Service (1999) 90 IR 42; Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57; Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32; Antonakopoulos v State Bank of New South Wales ; Buckman v Burdekin and D & R Commercial Pty Ltd v Flood (2002) 113 IR 344. 129 I turn now to consider the particular facts and circumstances of this case. 130 On first blush, this case would appear to be relatively straightforward. The Commission is required to determine, on the balance of probabilities, what happened in the lead up to, and during the incident on 18 April in KT's cabin. If the Commission accepts the respondent's case, it follows that the applicants were less than honest in their subsequent interviews with management and during their evidence before the Commission. 131 Of course, one might be conveniently attracted to the proposition that the firsthand evidence of three employees holding responsible positions within the Department of Juvenile Justice is to be preferred over that of a 17 year old juvenile detainee with a long and colourful history of criminal conduct. However, it is not only the evidence of KT which is critical to this case. I shall come to these other matters shortly. Moreover, there are a number of implausible and highly improbable coincidences that have, regrettably, convinced me, on the balance of probabilities, that the incident in KT's cabin, happened pretty much as he described it to Mr Dowse the day after. 132 Accepting the applicants' version of events raises in my mind, a number of highly improbable questions. Firstly, why would Mr Gatt immediately jump to the conclusion that KT had taken the texta from the office? Could it not have been somewhere else in the office? Could it have simply gone astray? Secondly, why would it take four officers to attend upon a detainee, with no history of violence, in order to simply retrieve a texta? 133 In my view, detainee KT did not remove the texta from the office. No one claims to have seen him do it. Another scenario is far more plausible. When it became apparent that there had to be an explanation for what the anonymous phone caller had said he saw, the idea was hatched that KT had taken the texta and the applicants' retrieval of it would explain why they had been seen in his cabin. 134 Not surprisingly, Mr Wilson sought to impugn KT's evidence on the grounds, inter alia, that he had a predilection for making unsubstantiated complaints against persons in authority and telling lies. KT did not dispute that he had such a history, including a record of criminal conduct. However, Mr Wilson's contention overlooks one vital matter. KT had not complained about this incident. The investigation was initiated after the anonymous phone call. KT did not know the purpose of his first interview with Mr Dowse and it is plain from the transcript that he openly volunteered a description of the incident remarkably similar to what the anonymous phone caller reported. It could not seriously be suggested that the phone caller would know what KT and Mr Tevita would later tell the investigators. 135 KT had not complained about the matter because he had laughed and joked during the incident and did not regard it as anything but skylarking around. Bearing in mind that he liked being the centre of attention, this seems perfectly understandable. In addition, I do not accept that KT's evidence was contradictory. Reference to a 'struggle' as being inconsistent with him wrestling and laughing and participating in the prank, is to my mind his way of describing a feigned opposition to what the officers were doing at the time. 136 Before leaving the evidence of KT, I must say that his demeanour and answers to questions in the witness box was not of someone who was making up his evidence for some collateral purpose. He was open and honest when he needed to be and his testimony, even having regard for some minor discrepancies, was consistent with what he had first told Mr Dowse without any prompting or prior knowledge. Notwithstanding his history, a self confessed liar doesn't necessarily lie all the time and I don't believe KT did on this occasion. 137 A number of factual matters which arose post the incident fortify my conclusions as to what really happened on 18 April. 138 Firstly, no report of minor misbehaviour was made by any of the four officers involved. This seems extraordinary given, that on the applicants' case, KT had breached the security of the office, stolen a texta which might have been used as a weapon and refused to hand it over when asked. On any view of it, if this was what really happened, the officers were obliged to make a report in accordance with established procedures and policy. For four of them not to do so raises real doubts, in my mind, and suggests another more likely explanation. There was no report of minor misbehaviour, because KT had not committed any misbehaviour. The only misbehaviour was that of the applicants. 139 Secondly, no Use of Force report was made by any of the four officers. This omission again seems incongruous considering Mr Gatt said that KT refused to hand the texta over when asked and he had 'touched' him to retrieve it. I find the explanation of KT 'juggling' the texta and Mr Gatt gently removing it from him to be utterly fanciful. I also cannot imagine how this explanation is comparable to the innocent touching of a detainee by shaking his hand. Moreover, the juggling explanation is inconsistent with what Mr Tevita said was someone holding the detainee's arm and taking the texta out of his hand. 140 Like the first point above, there was no Use of Force report made because the officers had not used force, just as KT had described, but had been involved in a physical consensual act of horseplay. 141 The third, and most significant factor in fortifying my conclusions on this matter were the notes taken by Ms Marchant in the interviews taken the day after the incident. 142 True it is that if the interviews had been taped, this case might never have come to this. Nevertheless, in my opinion, these notes were the best and most contemporaneous account of what really had happened. It must be remembered that when called to Ms Marchant's interviews, the officers were not aware of what they were to be asked about and had not expected any disciplinary action to follow. Thus, their first versions of the incident, while attempting in part to gloss over it, were likely to be the less tainted versions than these given much later when further reflection resulted in an obviously more defensive response. 143 Mr Tevita's first interview with Ms Marchant was most damning to the applicants' case. Mr Wilson sought to discredit Mr Tevita's evidence in that he later told Mr Pell that he couldn't recall what had happened or what he told Ms Marchant. While I accept that Mr Tevita's evidence before the Commission was not particularly helpful, in that he was vague, uncertain and contradictory, the rationale for his answers to Mr Pell were entirely consistent with someone knowing he had given himself and the others up in the interview with Ms Marchant and now needed to extricate himself from his predicament by feigning no recollection. I am prepared to accept Mr Tevita's initial responses to Ms Marchant as the truth, particularly as it accords with both KT's evidence and the information from the anonymous caller. I refer to what Mr Tevita told Ms Marchant. He had held KT's legs down, and someone drew eyebrows on his face. KT had not struggled and it was all done in a joking manner. 144 I find the criticism of Ms Marchant's notes by Mr Wilson to be without substance. It must be noted that on the critical aspects of the applicants' denials of what they were recorded as having said, Mr Dowse and Mr Robinson had clear recollections of the words used. For example: (i) Mr Perks had said that Mr Petroski drew on KT's face. (ii) Mr Gatt had said he should have completed a Use of Force report. (iii) Mr Petroski had said that they were going to draw eyebrows on KT, but didn't. (iv) Mr Tevita had said there had been poking and tickling and KT had been held down. (v) Mr Tevita had said eyeliner should be brought in to draw on his face. (vi) Mr Tevita had said that as a joke they would draw eyebrows on him. (vii) Mr Tevita said he had held KT's legs down. (viii) Mr Tevita had said that two lines were drawn on KT's face. 145 The attack on Ms Marchant's notes, has quite extraordinary consequences. For if Mr Wilson is correct, Ms Marchant concocted the key elements of the four interviews in order to fit with a conspiracy involving the anonymous phone call and KT's version of the incident. Moreover, Mr Dowse and Mr Robinson were a party to this conspiracy and lied to this Commission as to what the applicants, Mr Tevita and Mr Gatt told Ms Marchant. The proposition only needs to be stated to demonstrate its absurdity. Apart from the remote likelihood of this happening by chance, the nonsense of the suggestion is further demonstrated by asking the question - what possible motive would Ms Marchant have for doing so? In my view, Ms Marchant was a completely independent and objective bystander, whose evidence I accept without reservation. 146 Regrettably, here was a group of otherwise dedicated young officers who without thinking, foolishly engaged in an act of horseplay with a detainee who was laughing during the incident and had not complained about it. They have paid a heavy price for a few moments of indiscretion. Without the anonymous tip off no one would have been any the wiser. 147 However, the difficulty I have in this case is that the applicants have chosen to completely deny the allegations and have invited the Commission to accept on the balance of probabilities, their version of what happened on 18 April against the weight of contradictory evidence. I am reluctant to say it, but had the Commission been asked to find that the applicants' dismissals were too harsh having regard for honest admissions, contrition and their records of employment, the outcome of this case might well have been different. 148 However, the Commission can only decide this matter on the basis of how the applicants chose to prosecute their cases. In this respect, I am left with little alternative. The Commission finds that on the balance of probabilities, and having regard for the respondent's onus in proving the allegations against the applicants, that the respondent's onus has been discharged and the allegations have been proven. 149 In accordance with the provisions of s88 of the Act, I find that a reason was given to the applicants for their dismissals, that reason had a basis in fact and the applicants were given an opportunity to make out a defence and give an explanation for their behaviour. Their explanations were rejected and are rejected by this Commission. 150 I see little merit in the submission of Mr Wilson that the applicants were denied procedural fairness in not being shown Ms Marchant's notes of their first interviews. As I have earlier said these notes were correctly recorded by Ms Marchant and, in any event, they did not form the only or conclusive basis upon which the respondent came to the view that the incident in KT's room occurred as he had described it. 151 Unfortunately, the seriousness of this matter has been compounded by my findings that the applicants have been less than truthful with the Commission and earlier, with their employer. A not dissimilar situation confronted Boland J in Hosemans v NSW Police (No 3) [2005] NSWIRComm 161. There His Honour found that an otherwise good police officer's untruthfulness in the witness box rendered his dismissal not harsh, unreasonable or unjust. His Honour said at paras 206-207: It will be apparent that the Commissioner has not made out all of his grounds upon which he relied for loss of confidence in Mr Hosemans. In my opinion, however, they have been sufficiently made out so as to preclude any intervention by this Commission in relation to the Commissioner's removal order. In particular, Mr Hosemans' untruthfulness in the witness box is inimical to his role as a police officer and in balancing the interests of Mr Hosemans and the public interest as I am required to do under the statute, the public interest prevails. Accordingly, I find that the removal of Mr Hosemans was not harsh, unreasonable or unjust. I have come to that conclusion with considerable regret because in terms of Mr Hosemans' competence and performance as a member of NSW Police it was never put in question and, indeed, Mr Hosemans was a good officer. The irony, I think, is that if Mr Hosemans had not been untruthful in giving his version of the various incidents that occurred on 20 and 21 October 2001 it may have been that his misconduct would not have attracted the sanction of removal because as I have found, there was no assault or attempted indecent assault, although exposure of his penis and his manhandling of a female would have made a less severe penalty problematic. 152 Regrettably, I would conclude that the applicants have breached their duty of trust and fidelity to the employment relationship, for which reinstatement could not possibly be countenanced. 153 For the aforementioned reasons, I find that the dismissals of the applicants were neither harsh, unreasonable or unjust. The applications are therefore dismissed. Peter J Sams, AM Deputy President 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.