Industrial Relations Commission of New South Wales CITATION: Andrew Habony and The Presiding Officers, Parliament of New South Wales [2008] NSWIRComm 1075 APPLICANT Andrew Habony PARTIES: RESPONDENT The Presiding Officers, Parliament of NSW FILE NUMBER(S): 227 of 2008 CORAM: Murphy C State Parliament House leading hand security officer found by independent investigator to have not responded to radio calls from colleague when intruders entered premises via Hospital Road fire door left unlocked at around 4.42am on 28 October, 2008. Alarms turned off not long before shift - building unsecured. Applicant found to have breached respondent's patrolling policies by being in sedentary position for approximately two hours in members lounge/bar. Colleague in control room sighted intruders on CCT monitor and attempted to raise Mr Habony by two-way radio without success, despite many attempts over half hour period. Police and manager/supervisor contacted by control room officer and attended separately. Mr Habony finally contacted by mobile phone. Attempt by Mr Habony in cross-examination to resile from previous admission to enquiry of watching television for that time not accepted. Applicant's failure to respond to questions from supervisor upon arrival as to whereabouts counted against him. Shift of onus and standard of proof discharged by respondent. CATCHWORDS: Applicant's credibility found to be wanting, whilst respondent witnesses credible. Applicant's behaviour found to be a repudiation of essential duties and character of contract and loss of trust deserving of termination. Respondent had proper regard to all aspects, including lengthy service of Mr Habony. Application dismissed. LEGISLATION CITED: Industrial Relations Act 1996 Pastrycooks Employees, Biscuit Makers' Employees and Flour and Sugar Goods Workers' Union (NSW v Gartrell White (No.3) (1990) 35 IR 70. Brigginshaw and Brigginshaw (1938) 60 CLR 336 Bigg v New South Wales Police Service (1998) 80 IR 434 @ p455 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 @ p170-171 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Four Sons Pty Ltd v Limsiripothong (2000) 98 IR 1 Lawrence v Catholic Education Office [2002] NSW IR Comm115 TEXTS CITED: Leonard v BlueScope Steel Limited [2007] NSW IR Comm 1023 Concut Pty Ltd v Worrell anor. [2000] 103 IR 160 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 @ p389 Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd (2003) 128 IR 37 @ 125 Perkins v Grace Worldwide (Aust.) Pty Ltd (1995) 72 IR 186 Hollingsworth v Commissioner of Police (1999) 88 IR 282 Burge v BHP Steel (2001) 105 IR 325 Byrne & Anor v Australian Airlines (1995) 61 IR 32 p72 NSW Fire Brigade Employees Union (o/b Natoli) v NSW Fire Brigades [2005] NSW IR Comm 440 para 217 HEARING DATES: 02/09/08, 03/06/08 and 05/09/08 DATE OF JUDGMENT: 7 November 2008 Mr P Krockenberger, Industrial Officer LEGAL REPRESENTATIVES: Public Service Association Mr Britt of Counsel, briefed by the NSW Crown Solicitor. DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MURPHY C 7 November, 2008. Matter No IRC 227 of 2008 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Andrew Habony) and The Presiding Officers, Parliament of New South Wales Application by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of its member Andrew Habony re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2008] NSWIRComm 1075 1 Mr Habony was employed as a security officer at Parliament House, Sydney for some eight years, at the time of his dismissal on 18th February, 2008, following his suspension and an official investigation of a security breach in the early morning hours of 28th October 2007, during a late shift which commenced at 11pm on the evening of 27th. 2 The applicant was dismissed for misconduct following an allegation, inter alia, that as leading hand on the shift, he was absent from his place of duty when he was either asleep or otherwise disengaged from his duties as a security officer, when he could not be raised on his radio by the only other security officer on duty (in the control room), when she observed intruders on the control room CCT cameras entering by the Hospital Road side fire door, at around 4.45am. 3 The formal investigation conducted by an independent consultant, Ms Wendy Klaassen of GVK Consulting, found the set of allegations she was required to investigate sufficiently established to merit the incident being continued to be treated as a disciplinary matter. The investigation covered interviews with all relevant staff and supervisors, including Mr Habony. 4 The specific allegations were communicated in a letter to Mr Habony dated 20th December 2007, signed by the Clerks of both Houses of Parliament, which advised that they had formed the opinion that he had engaged in misconduct, in the follows terms: 1. Between 11pm Saturday 27th October 2007 and 7am Sunday 28th October 2007 you were on duty as a Leading Hand and Security Officer. During that time: . You were absent from your place of duty and did not notify the control room officer of your location. . You did not answer calls for assistance from an officer in the control room placing another officer's safety at risk. . You failed to respond to a security incident on site. 2. On 28th October 2007 you did not answer questions regarding your whereabouts put to you by Mr Stuart Renshaw, Security Co-ordinator, conducting an enquiry into the security incident of Sunday 28th October, 2007. 5 The letter of 20th December, which advised him of the above results of the investigation report, along with the aspects which would be taken into account when deciding appropriate disciplinary action, invited him to attend a final interview, with a union representative, in addition to any written submission he might like to finally make. He subsequently gave a written response, but apparently did not take up the opportunity of a final oral interview by way of explanation. 6 The union's case on behalf of Mr Habony was presented by Mr P Krockenberger, Industrial officer of the Association and supported by evidence from Mr C Williams, a fellow security officer, in addition to the evidence of the applicant himself. 7 The union's case was conducted by Mr A Britt of Counsel, briefed by the NSW Crown Solicitor. Evidence was brought from Mr R Towbay, Speaker of the Legislative Assembly; Ms Karen Iwanski, the security officer on duty with the applicant on 28th October 2007; Mr Morgan Andrews, Manager, Security Services; Mr Stuart Renshaw, Security Co-ordinator and Ms Wendy Klaassen, Director of GVK Consulting. Affidavits filed by Mr P Primrose, President of the Legislative Council as one of the official employers (Exhibit 14) and by W. Turnbull of Telechnics Pty Ltd to do with the radio reception throughout the building (Exhibit 15) were accepted into evidence without cross-examination. 8 Evidence in the case was completed on 2nd June and the advocates requested that they be allowed to make initial submissions in writing in accordance with a timetable which allowed for a right of an oral reply by both advocates. That timetable was not able to be met and final oral submissions were not delivered until 5th September, after which the Commission was able to reserve its decision. APPLICANT'S CASE OVERVIEW : 9 The Union, through Mr Krockenberger, claimed in its case summary that the Commission ought find that the applicant's dismissal was harsh, unjust or unreasonable because the respondent, the Presiding Officers of the Parliament, had simply followed inferences drawn by Ms Klaassen, the consultant, hired to conduct an enquiry into the events of 28th October 2007. It was the Association's case that the Presiding Officers should have made an independent assessment, in the light of the shift of onus upon them to prove misconduct. Well recognised legal precedents on the question of dismissal for misconduct, which emphasise the requirement for a proper standard of proof, along with the shift of onus, were relied upon in the process. Neither had they considered Mr Habony's long and unblemished employment career in the public service (Parliament House and Corrective Services Commission) or the possibility of the malfunction of his radio. Nor had they considered an alternative penalty to dismissal. 10 Other factors relied upon included that the respondent should have taken account of the paucity of official policies or guidelines on the conduct of security duties, especially as they pertained to the custom and practice of the second half of the late shift, after lockup was performed - requiring only a passive patrol of the Parliament. 11 That being the case, an important area of the applicant's case was his admission, that he had watched some television in this period, was not in the circumstances an admission of misconduct. EVIDENCE - APPLICANT'S CASE 12 On the particular late shift spanning 27 - 28 October beginning at 11 pm, Mr Habony had followed the practice of doing the first 4 hours of the shift on control room duties and proceeded to the second half patrol duties at 3 am, having switched with Ms Iwanski. 13 More controversially, Mr Habony went on in his affidavit, Exhibit 2, to make the claim, fundamental to his case, that in that second half of the shift it was "customary ( as well as dictated by Policy - cf. Attachment 2, Security Policy - Lock & alarms, p2 Patrols during Lockup) for the second half of the shift to be a less thorough patrol than the patrol undertaken in the first four hours ". He went on to say that officers alternated the order of their duties so as to do their fair share of the more onerous patrol shift in the first four hours. 14 Mr Habony maintained that because Ms Iwanski was so thorough in her duties, he was additionally confident about the lockup being done thoroughly. 15 In his affidavit he claimed he made a short patrol and then, in his words - "sat down for a while in the Member's Lounge, while I watched some television". 16 Around 5.15 am, he received a phone call on his mobile phone from Officer Iwanski in the control room telling him that there had been an intrusion into the building, and he went to the Control Room immediately where Ms Iwanski informed him that the police had been called and, having attended, had gone. She also informed him that the Security Manager ( Mr Morgan Andrews ) and the Coordinator ( Mr Stuart Renshaw ) were on their way. 17 At that stage he examined the security footage showing that two men had entered via the level five (street level) fire escape, for approximately 3 minutes before emerging carrying items of clothing. He simply viewed the footage and did not discuss the incident again with Ms Iwanski. 18 When Mr Andrews, the manager, arrived a short time later, both went to level five to check for damage. In the meantime Mr Renshaw, his supervisor, arrived. 19 Towards the end of the shift around 7 am on Sunday 28th October the applicant had a conversation with Mr Andrews and Mr Renshaw outside near the Hospital Road entrance, during what he called a cigarette break and discussed what had occurred. 20 The applicant maintained in his affidavit as to what he said, or did not say, to Mr Renshaw, that he had no idea that he was being accused of negligence or misconduct in respect of the incident. He began by asking why Officer Iwanski hadn't called him on his radio during such a serious incident, to which Mr Renshaw had replied that she had called him several times and to which the applicant said that his radio had been turned on and apparently working at the stage when he took it from the control room. 21 At that point Mr Renshaw suggested that he had been asleep in the Members Lounge during the intrusion. The applicant claimed to have been outraged at the suggestion of such unprofessional conduct and replied to the effect " Don't go there ", by which he meant that it was untrue and insulting. 22 In his evidence before the Commission (but not to his supervisors at the time) Mr Habony gave as an explanation as to why he had not heard the radio calls from Ms Iwanski, that his radio or its battery was faulty, noting how curious it was on the other hand that he had heard the very first phone call from her on his mobile. In that vein, he made the related claims that problems with radio reception and batteries were common at Parliament House. 23 Mr Habony next referred to new policies that had been instituted since his dismissal, requiring the Control Room or the Patrolling Officer to contact each other in a regular and systematic way, whereas contact was previously only on an as-needs basis. 24 He reinforced in his oral evidence that he had cooperated with that part of the enquiry during the conversation at around 7 am on 28th October with Mr Andrews and Mr Renshaw, claiming that this was despite not really being aware that his conversation was part of the investigation, thinking that he was just making something in the nature of a statement. He reiterated that when he had responded with the words "Don't go there", he simply meant that it was an untrue suggestion made to him that he was asleep. When Ms Klaassen had interviewed him as part of her investigation he had answered her fully and frankly. 25 Mr Charles Williams, a fellow Security Officer at Parliament House gave evidence in support of the applicant's case, including corroboration of the custom of second four hour patrol of the shift not being as thoroughly conducted as the first. On the basis that such officers had first satisfied themselves that all was well, "you take a more relaxed approach to patrolling", was his contention. He also noted that this approach had undergone a change since the 28th October incident. 26 Mr Williams also backed up the applicant's claim that there were often problems with two-way radios, going on to say that the batteries are known to fail and are very unwieldy. In the absence of clips to hang the radios from belts, Mr Williams went on to say that the practice was to put the radios in officers pockets. He had often had a radio turn itself down or off when switches catch against pockets. He compared the loudness of a radio call with a mobile phone, with the former being much louder than any mobile phone that he had experienced. 27 On another issue in cross-examination, it was Ms Williams' understanding that radios emitted a beeping sound when batteries were low. 28 Finally, in his affidavit he described Mr Habony as being a natural night-worker and as being "truly nocturnal". 29 In cross examination, Mr Williams acknowledged that, whilst he contended that the second part of the shift was more passive, there was still a requirement to patrol as per the guidelines. 30 The following extract of transcript of his cross-examination on this point was revealing: "Q. And even though he might be taking in your words a more relaxed approach to patrolling, you're still expected to patrol? A. Yes. Q. And there's a number of levels at Parliament House? It's not a one storey building, is it? A. No. Q. And that involves - patrolling involves walking around a number of levels? A. Yes. Q. And that would be each and every floor? A. (No verbal reply) Q. From the carpark to the top floor? A. During the course of the night you're expected to go to every one of them. Q. Now, in paragraph 3 where you refer to this more relaxed approach to patrolling, what do you mean? A. Well, what I was saying that is that if I come onto a shift, the first thing I want to do is satisfy myself that all areas are covered. Now, there's factors that come into that. The factors might be like if there was a function there, obviously there may be still people wandering around the building, you go a lot, lot more thoroughly. How much you trust the person you're relieving is another factor. But once you've satisfied yourself, once the building is locked, it's secured, there's cameras on every access point. Once I've personally satisfied myself that I've visited all areas, then you can relax a bit. Particularly if you trust your control room officer, you know that they're going to be able to say, hey, listen, I think there's someone coming in. Q. But you're still patrolling in the second half? A. You do some patrol, yes. Q. And what does that involve? A. Well, it's usually fairly random. I mean, you do one systematic - I can only talk about what I do. Q. What do you do, sir? A. What do I do? I systematically at the start of my shift or if I'm not real certain about the person - I don't know the person really well on the first half of my shift, when I'm doing the second half, I'll go from top to bottom and really do a thorough check, probably to satisfy myself. Q. And when you say you'll go from top to bottom, what level is the top? A. 12. Q. And what level is the bottom? A. 1. Q. And when you say you go, what do you mean by that, sir? A. Well, what I would normally do, I'd say, okay, I'm starting, I'm leaving the control room. I'd go into the lift, I'd get the lift up to level 12. I'd just walk - I wouldn't necessarily go and rattle every door if I'm comfortable the building is locked up, but I'd just go to make sure that there's no fire, no intruders or anything. Anything really obvious that you could see. And I'd basically just work my way down. Q. And that involves walking around - for instance, level 12, walking around-- A. If I got to level 12 for example and I saw a light on, I'd go down and turn the light off. At the start of my shift I'd make sure there was no obvious - it may well involve walking around it all. Sometimes you might walk onto a floor and have a look up and down, one of the ones like 12, 9, 8, 10, that are just single corridor things, you'd like up and down, it's as black as anything, there's no sign of anything, you just get back in the lift and go down to the next one. Q. And once you've done that from level 12 to level 1, what do you do then? A. Could be anything. I might make myself a cup of tea, I might do anything. You know, probably something of a recreational nature. Q. Would you go back to the control room? A. I might. Q. Now, in relation to radios, you're required to check the radios when you leave the control room? A. Yes." RESPONDENT'S CASE Overview: 31 The outline of the case against Mr Habony has been largely dealt with at the beginning of this decision, although there are other essential details contained in the report of Ms Klaassen with annexures and the attachments provided with the affidavit of the Speaker of the Legislative Assembly. 32 It is relevant to reproduce the outcome of Ms Klaassen's investigation as presented in the final pages of her report in order to put into context the matters put to the respondent for their consideration. The relevant section is as follows: " 1.5 SUMMARY OF INVESTIGATOR'S VIEW ON THE RELEVANT FACTS Allegation 1 Having reviewed the security investigation report, considered all available CCTV footage and conducted interviews with Ms Iwanski and Mr Habony, I have formed the view that Mr Habony did absent himself from his place of duty and did not notify the control room officer of his location. I base this view on the fact that his duties, and therefore his place of duty at the time, was to conduct a patrol of the interior of Parliament House and to check the external perimeters from inside the building, including areas such as fire escapes which are only monitored by alarms and not CCTV. By his own admission, Mr Habony was not conducting a patrol. Instead, he was sedentarily positioned in the Members Lounge area where he claimed he was watching TV. CCTV footage has shown that Mr Habony entered the area of the Members Lounge at 3.34am. He was not sighted on any security cameras again until 5.32 am. It is my view that by being sedentary and not conducting a roving patrol, he was not at his place of duty By his own admission and based on the statements given by Officer Karen Iwanski he did not notify the control room of his location at any time after leaving the patrol room at 3.15am. Officer Iwanski was unaware of Officer Habony's whereabouts until he returned to the control room at approximately 5.32 am. I have also formed the view that Officer Habony failed to answer calls for assistance from Officer Iwanski in the control room, and by so doing, he placed another officer's safety at risk. I have also found that by so doing, he placed his own safety at risk. I am satisfied on balance, that Officer Iwanski did make a number of radio calls to Officer Habony before calling him on his mobile phone at 5:17 am. I found Officer Iwanski to be a highly credible witness at interview whose statements were consistent and reliable. I also am satisfied that she was genuinely concerned for Andrew Habony's welfare (and her own welfare) at the time that she was unable to raise him. I find no reason for her not to have repeatedly attempted to contact Andrew Habony. I am satisfied that Andrew Habony's radio was fully functioning at the time Ms Iwanski attempted to contact him. The investigation has been unable to establish why Officer Habony failed to respond to the calls; however, it is highly likely that he was asleep at the time. A site inspection of the Members Lounge indicated that there are several large leather sofas upon which Mr Habony would have been easily able to lay and fall asleep. These findings having been made, it follows that I am satisfied on balance that Mr Habony failed to respond to the security incident that had been identified by Karen Iwanski at 4:43am. Accordingly, I find this allegation sustained. Allegation 2 I am satisfied on balance that on 28 October 2007, Mr Habony did not answer questions regarding his whereabouts put to him by Mr Stuart Renshaw, Security Coordinator, conducting an inquiry into the security incident of Sunday 28 October 2007. I base this finding on the evidence given to me by Stuart Renshaw and the file note made by Morgan Andrews in relation to the conversation between Stuart Renshaw and Andrew Habony. Whilst I note Mr Habony's submissions that the conversation was an informal one, Stuart Renshaw is senior to Andrew Habony and was clearly gathering information to establish the facts of the incident on 28 October 2007. It is my view that Andrew Habony had a duty to respond to the questions asked of him by Stuart Renshaw, and that he failed to do so. Accordingly, I find this allegation sustained. I also find that Andrew Habony chose to provide very limited information when he made his written statement to Stuart Renshaw on 28 October 2007, however it is noted that Stuart Renshaw did not specifically ask questions in relation to Andrew Habony's whereabouts when taking the statement. 2. VIEW ON WHETHER THE MATTER SHOULD BE TREATED AS A DISCIPLINARY MATTER Andrew Habony is an experienced Security Officer who had assumed the position of Leading Hand on 27 and 28 October, 2007. It is my view that this matter should continue to be treated as a disciplinary matter." RESPONDENTS EVIDENCE Evidence of Ms Iwanski 33 The evidence of the fellow security officer on duty with Mr Habony on the morning of 28th October last, Ms Karen Iwanski, firstly dealt with her description of the break-in, of which she became aware from viewing the closed circuit television cameras in the Control Room, whilst on duty in that role around 4.45am. The unlawful entry was by two male persons who she saw acting suspiciously at the fire exit at the level 5 Hospital Road entrance at the rear of Parliament House. 34 She immediately tried to contact Mr Habony, the Leading Hand on the shift, on his two-way radio, making several attempts in quick succession, but to no avail. She then rang the Rocks police station and requested their attendance. Whilst on the phone to the police, the intruders exited, a development of which she informed the police, but requested them to attend on the basis that she was unsure as to whether a third person had entered and had not come out yet. The police, who advised her that they were having a busy time, did not attend until half an hour later. 35 She next tried to contact Mr Habony again on his radio to no avail, and at around 4.50 am she unsuccessfully tried to contact the security co-ordinator Mr Stuart Renshaw (and then another co-ordinator Mr. Deverill). She again tried Mr Habony's radio. She then succeeded in reaching the security manager, Mr Morgan Andrews, telling him of the illegal entry and also expressing concern for the safety of Mr Habony, who at that stage had been uncontactable. She eventually, upon the advice of Mr Renshaw, obtained his mobile phone number and made contact with him around 5.17am. 36 Mr Andrews visited the site at around 6 am, followed by Mr Renshaw at approximately 6.30 am. All three, in company with Mr Habony, at that stage watched a re-run of the video tape recording of the intrusion and exit. 37 Ms Iwanski in her further evidence under cross-examination agreed with Mr Krockenberger that there was nothing unusual in the fact that the applicant had not contacted the control room in the second half of the shift on 28th October. 38 She was less satisfied with the other proposition put to her, as to the so called custom relied upon by Mr Habony that the second half of the night shift did not require the same thoroughness as to patrolling as the first half. Her affidavit evidence was that there was no difference between the first and second four hours of the shift when it came to her obligation to patrol. She was not aware of a practice to take a more passive role in the second part of the shift, but qualified her answer that she had not worked with many officers on the night shift and, although she supposed that she had heard about such an aspect amongst other officers, she had not witnessed the custom. 39 She denied in cross-examination being angry, annoyed or being put in a bad state of mind by not being able to contact Mr Habony, but instead, she said she was concerned about his safety. It did not occur to her to try using the public address system to raise Mr Habony as there was too much going on by way of sirens and she was concerned about the arrival of the police and contacting Mr Andrews around the time, she might otherwise have thought of doing so. She agreed that the radio is generally louder than the ring on a mobile phone (although it was agreed that it would depend on the setting of the phone). She was surprised that he had answered his phone when he had not apparently heard his radio, but was relieved. 40 An important feature of her evidence was that Mr Habony would not normally communicate with her very much, rarely speaking to her and, when he did, he created an air of being difficult to approach, although she asked him questions in a work related atmosphere. She found him difficult to work with and, "it didn't create a nice working environment". He had sworn in her presence on occasions and was rude. Evidence of Mr Renshaw 41 The evidence of Mr Stuart Renshaw, in his affidavit (Exhibit 13), first described how he was contacted by Ms Iwanski, beginning with a mobile phone message at around 4:48 am, leading to phone conversations with Ms Iwanski, during which the efforts to raise Mr. Habony were discussed, including the suggestion from Mr Renshaw to try his mobile phone, in view of the inability to raise him by radio (using the lists kept in the control room to contact employees for overtime). 42 Attached to Mr Renshaw's affidavit at Annexure A was a report prepared soon afterwards by way of a file note and also initialled by Mr Andrews, with the notation that Mr Renshaw's record matched his own recollection of events and conversations set out therein. An important area of that report was where Mr Habony had claimed that his radio was on and that he had tested it at the beginning of the second half of the shift, before leaving the control room. 43 His affidavit included the additional aspect at paragraphs 10 and 21 that the applicant had actually tested the radio he held at the time in front of him. Mr Renshaw's evidence on that point, which included being cross-examined and re-examined, had to be considered in the light of Mr Habony's denial of this. This was to the effect that, in any event, the radio he had at the time was not necessarily the same one he had at the crucial point when he was being radioed, as he placed that radio back in the charger when he came straight down to the control room in response to Ms Iwanski's mobile phone call. The relevant cross-examination and re-examination is worthy of repetition: 'CROSS EXAMINATION BY MR KROCKENBERGER (EXTRACT) Q. Mr Renshaw, at paragraph 10 and indeed also paragraph 21, you say that when you had a talk with Mr Habony and Mr Andrews about this incident of the night of the 27th going over to 28 October 2007, you said that when you had that talk on Hospital Road, that Mr Habony had one of the security unit's radios with him. That's correct? A. That is correct, sir. Q. You say that Mr Habony turned this radio on and off in your presence, is that correct? A. He did, sir, yes. RE-EXAMINATION BY MR BRETT (EXTRACT) Q. You were asked about paragraphs 10 and 21 where you say Mr Habony clicked the radio on and off to show it was working? A. Yes, sir. Q. When he did that, did he tell you it wasn't or might not be the radio he used that night? A. He did not, sir. He produced a radio which he had in his hand. He held the radio out to myself and Mr Andrews, who is the manager, and he stated that his radio was on, it was working. He also stated that he had tested it before going on shift and he then turned the radio on and off. I can't recall if he did a radio check, but I distinctly heard the radio turn on and off and I know that the radio that he had in his possession did in fact have power. Q. And did he report to you at any stage that the radio, that he had wasn't working? A. No, sir. He actually told me that the radio he had was working, he told me that he had tested it. 44 It was during this exchange at the Hospital Road entrance, that Mr Renshaw had raised the significant question as to where Mr Habony had been when Ms Iwanski had attempted several times to contact him by radio. The file note mentioned earlier above went on to say that Mr Habony had responded to the direct challenge to him that he was asleep in the Members Bar by saying, "don't go there" and reiterated a request for Ms Iwanski's actions that morning to be looked at. This issue of why the applicant did not respond to Mr Renshaw's questions was a vexed question in these proceedings related directly to the second of the formal allegations outlined at the beginning of this decision. Mr Renshaw's evidence was that Mr Andrews , his manager, had indicated to him not to pursue the matter, when Mr Habony had responded with "Don't go there", which he understood to be because there was to be a more formal investigation. 45 Mr Renshaw advised the investigator that the only time he posed the question to Mr Habony as to his whereabouts on the 28th October during the break-in, was that conversation described more fully elsewhere above, outside the Hospital Road entrance when the applicant himself initiated the conversation with his boss during what Mr Habony called a cigarette break. He started off the conversation involving Mr Andrews by again blaming Ms Iwanski for not contacting him. Aside from that random treatment as to the applicant's whereabouts and posture, he merely asked Mr Habony (along with Ms Iwanski) for a written statement as to his role in the incident, but gave no direction as to what they were required to include, other than as to what had occurred. The whole purpose of the statement, he told Ms Klaassen, was to provide their version of events. It was not a record of interview and no questions were posed. 46 Elsewhere in his evidence, Mr Renshaw emphasised that radios were the standard method of communication between officers, consistent with the actions of Ms Iwanski, and not mobile phones. This was borne out by reference to "Standing Operating Procedures - Radio Operations, attached at Annexure C to his affidavit ( prepared and approved on 2nd August 2005)", which officers were expected to read and apply. 47 At Annexure D to his affidavit was the transcript of his interview with Ms Klaassen, where Mr Renshaw made the important point that the area of the members lounge attracted the most powerful radio reception because of its proximity to the main aerial, as compared to other areas such as the below ground parking levels - but some 75% of the building had reasonably strong reception. 48 In his interview with Ms Klaassen, Mr Renshaw also dealt with what he contemplated would be raised by Mr Habony as a defence to not answering the repeated radio calls from Ms Iwanski - that his radio was not working. Apart from the fact that Mr Habony had informed him that he checked that his radio was working, he had said that he knew it was working before he left on patrol duties on the second half of the shift. If the batteries had gone flat the radio emits a beeping noise, which Mr Habony should have heard and he again referred to the strong signal in that area of the building, because of the proximity of the base radio aerial. 49 As to why Mr Habony had answered his mobile phone and not his radio, Mr Renshaw suggested to Ms Klaassen that: "Realistically, you know, his phone's kept in his pocket. It vibrates". 50 He went on to discuss with the investigator the possibility that the known personality differences between the two officers on duty had stood in the way of the normal course of contacting Mr Habony on the radio. He concluded that Ms Iwanski's expressions of concern that she could not contact Mr Habony on his radio sounded like genuine concern for his safety, combined with her expressions of fear as to the fact that there were intruders in the building, which she would have seen as a threat to her own safety, overriding any personality conflict with the leading hand. Mr Andrews' Evidence 51 Mr Andrews' affidavit evidence was tendered as Exhibit 17 and covered a wide field of relevant evidence. 52 He gave oral evidence as to the fact that, since the alarm system had been turned off just prior to the commencement of shift, there was actually an increased need to patrol. 53 During Mr Andrews' evidence the Commission was given the opportunity of testing the various functions and aspects of the radios. He also gave evidence that the batteries emitted a beeping sound if on the wrong channel and outlined other technical features. 54 He gave evidence on a separate aspect of asking the applicant if he had any keys to return on the day of his dismissal, but was told that he did not. 55 He expressed the opinion that the applicant had deliberately evaded his request to return the key taken by the applicant on the day he was called in for his dismissal interview. He believed Mr Habony had hung up on him when he rang to recover the key and it required the Association's assistance to finally obtain it from him. 56 Importantly, again on an issue as to the practicality of reinstating the applicant should he be successful in his application before the Commissioner - he testified that he was required to deal with a complaint by Ms Iwanski as to comments made to her by other officers who were "parroting comments" in support of Mr Habony. 57 His view was that, when Mr Habony responded to Mr Renshaw with the comment "Don't go there", he was angry and aggressive. 58 He gave a description of how, if the alarms were off, as they were on that shift, the alarm screen would instantly identify that the alarms were off. He went into a possible motivation for the alarms to have been switched off, including that officers could enter areas without an alarm sounding. Mr Torbay's Evidence 59 Evidence was given by the Speaker of the Legislative Assembly, Mr G R Torbay, as one of the two presiding officers of the Parliament and, as the employer, the decision makers in the dismissal of the applicant, based upon the report of the independent investigator of the incident on 28th October. 60 Mr Torbay's evidence canvassed a wide spectrum, including an affidavit, which was marked as Exhibit 16, with important annexures comprising the various documents relied upon by he and Mr Primrose, the President of the Legislative Council, when deciding to dismiss Mr Habony. The annexures to Mr Torbay's affidavit contained the following important documents, which the Commission has carefully noted as key matters relating to the respondent's decision making process: "D" The PSA letter of 9 November, 2007 on behalf of Mr Habony, comprising a three and a half page defence of his actions on 28 October, 2007. "F" The letter of appointment of Ms Klaassen to investigate the allegations set out therein. "I" A copy of Ms Klaassen's report. "J" The letter dated 20 December, 2007 advising the applicant of the outcome of the investigation and setting out the things the Presiding Officers would take into account on considering the type of disciplinary action and inviting him to have an interview prior to any action taken. "K" Mr Habony's 3 page written response to the respondent's letter of 20 December, 2007. "L" A final advice dated 12 February, 2008 written by the Manager, Employee and Corporate Services to the Clerks of the Parliaments and Legislative Assembly, then referred to the Presiding Officers who had recorded their decision to terminate Mr Habony thereon. "M" The dismissal letter to Mr Habony dated 18 February, 2008. "N" A file note composed by Mr Andrew's in respect to the key incident. 61 In cross-examination Mr Torbay defended the notion that the applicant was required to be conscious of the increased risk of terrorism at Parliament House. 62 He expressed his belief that the applicant had been unco-operative in respect to his failure to return a key taken from the Parliament on the day of his dismissal. FINAL SUBMISSIONS - APPLICANT: 63 Mr Krockenberger began his submissions with reference to the burden of proof, identified as shifting to the respondent in misconduct cases and as espoused in some well known authorities which he relied upon, including the judgement of Hungerford J in Pastrycooks Employees, Biscuit Makers' Employees and Flour and Sugar Goods Workers' Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70. 64 He was critical of Mr Torbay as the ultimate decision maker, who he said satisfied himself that Mr Habony was guilty purely based on Ms Klaassen's investigative report (Exhibit 16 Annexure I). His cross-examination revealed he placed almost total reliance upon the report but at the same time, when asked if he considered the possibility that Mr Habony's radio had malfunctioned, he again alluded to the findings of the report. However, Mr Habony had led uncontradicted evidence that he had placed the radio that he had at the time of the alleged calls from Ms Iwanski back in the radio charger at the time, when he subsequently returned to the control room and later took another radio from the battery charger, and that he could not be sure that it was the same radio. 65 Mr Torbay, he claimed, had simply taken the view that the radio had been tested on the basis that the file note submitted to Ms Klaassen by Mr Morgan Andrews, Manager of Security Services, which talked about the testing of the radio during the conversation at the Hospital Road entrance between Mr Habony, Mr Andrews and Mr Renshaw. But neither Mr Torbay nor Ms Klaassen averted to the statement made by Mr Habony regarding the exchange of the radio as referred to above. 66 Mr Krockenberger also criticised the fact that Mr Torbay, when he listed the considerations he had taken into account to dismiss Mr Habony, had included a list of generic security concerns, and he believed Mr Habony had a particular duty in the light of contemporary threats like national and international terrorism. Yet, under cross-examination, Mr Krockenberger maintained Mr Torbay conceded that such considerations were more properly for management, when implementing appropriate policies. (This was disputed by Mr Britt). 67 Mr Krockenberger referred to the reasons why Ms Klaassen had come to the conclusion that Mr Habony was probably asleep, basing her findings on the fact that Mr Habony answered her question as to where he was between 3am and 5.17am, when he said "basically just watching television in that area" (member's bar). Mr Krockenberger asked the Commission to take into account, that that response to Ms Klaassen was overly simplistic, given that he was moving around a large area of the member's bar and lounge, being level 7 (Exhibit 8 refers), although there was a television switched on and he watched television for some period, but not necessarily the entire period as he testified at page 23 of the transcript at lines 14-26. The Commission was asked to take into account then that Mr Habony testified in re-direct that the reason he had given such a blunt and simplistic answer to Ms Klaassen, was that he was still predominately concerned that he had been accused of "absence from place of duty", i.e. that he had actually left the premises and this suggestion had coloured his simplistic answer. Mr Krockenberger, in this area, quoted the transcript where the applicant had claimed to be "shell shocked by the initial wording of the charge in which - you've got it there somewhere, it says, being absent from your place of duty". He went on to say that he thought he was being questioned for being absent from Parliament House. 68 Also relevant to this area of the evidence was the reply in the cross-examination of Ms Klaassen that she had based her findings on the evidence that the applicant had provided to her in interview, where he did not indicate to her that he had been moving around the members bar. Her point is therefore not grounded on the best evidence, but simply that Mr Habony had said nothing to the contrary when questioned about his movements. 69 Mr Krockenberger went on to attack the reasons provided by Ms Klaassen in her report as to why she thought the applicant was probably asleep. 70 As to the finding by Ms Klaassen that the applicant did not notify the control room of his location, "after leaving the control room at around 3.15", the applicant had submitted that it was no duty on his part to regularly contact the control room and indeed, that it was common practice not to do so. In fact, Ms Iwanski's evidence agreed that there was nothing irregular in the applicant not contacting the control room. Neither could the respondent point to any policy or guideline which required regular communication with the control room. 71 Other aspects of the accusations against the applicant based upon inherent duties of a security guard might be normally valid, but given Mr Habony's ambiguous evidence as to the actual intensity of television viewing and his subsequent evidence as to him actually moving around the members lounge, Mr Habony was to be considered as being on a roving patrol within the parliamentary precincts, and thus, at his place of duty, and thus had not offended the norm. 72 As to Ms Klaassen's findings that the applicant had failed to answer questions regarding his whereabouts put to him by Mr Stewart Renshaw, the security co-ordinator, Mr Krockenberger referred to the applicant's evidence of being offended by the tone of the words put to him by Mr Renshaw when he suggested that he was asleep in the members' bar and therefore had responded with the words, "don't go there". The other reason why he had responded like that was that he had no further opportunity, given that Mr Andrews had directed Mr Renshaw to drop the line of questioning, and who had done so on the basis revealed in his cross-examination, that there was a more formal investigation contemplated. 73 Accordingly, the conversation with Mr Andrews and Mr Renshaw was far short of a formal proceeding or enquiry, and given that Mr Habony had initiated the conversation, it is quite nonsensical to find that Mr Habony had not answered questions regarding his whereabouts put to him by Mr Renshaw, conducting an inquiry into the security incident on Sunday 28 October, 2007. Accordingly, given also that the conversation was quickly terminated by Mr Andrews because he believed a formal investigation would be conducted - the allegation is wrong. 74 There was no reference by Ms Klaassen as to the nuances involved in that conversation. 75 Accordingly, the Association believed that the findings of Ms Klaassen in her investigative report fell far short of the standard laid down in the Brigginshaw and Brigginshaw anor. (1938) 60 CLR 336 which held that when assessing proof on the balance of probabilities, a mere mechanical preponderance of evidence does not suffice and must be accompanied by actual belief in probability. The more serious consequences of the finding, the more strictly the belief must be tested against the circumstances. 76 Mr Krockenberger referred to the fact that the respondent had gone into proceedings against Mr Habony on the initial theory that he was asleep, but since broadened that theory. The fact is that it is implausible that he was asleep given that even if he was asleep the squawking of a radio would easily wake him. The fact that he was aroused by a mobile phone easily shows that it was more likely that Mr Habony's radio did not go off for some reason. The fact that he was watching television when he received the call is not in itself proof of dereliction of duty and could easily have legitimately occurred during a roving patrol after lockup. 77 Mr Krockenberger next attacked the policies/guidelines and compared those with the custom and practice of what actually occurs. 78 The applicant's evidence in respect of the fact that the first patrol in the first four hours of the shift was more onerous than the second and where officers had switched their duties from the control room was supported by Mr Williams, who was also a security officer at Parliament House. Ms Iwanski testified under cross-examination that while she did not necessarily follow the custom, she certainly knew of it and could not verify that everyone was trained in the same way as herself. 79 The only relevant written policy in place at the relevant time was the "Security Policy - Lock Up and Alarms" (Annexure B to Exhibit 17) which stated clearly, under the heading of "Patrols during Lock Up", that it was not necessary to conduct continual patrols and gave as a guide that the patrol of an individual area should be conducted once per hour. However, the main focus in that report was said to be checking the external perimeter from inside the building such as fire escapes. 80 Mr Krockenberger repeated the point made earlier that the applicant in his cross-examination had dealt with the fact that he had told Ms Klaassen that he had been watching television rather than patrolling, but that it was not for the entire time and that he apologised for not being specific enough with Ms Klaassen during her investigation and that he had gone on to tell Mr Britt in cross-examination "no it's true, but to be more specific, I was watching television for a short period of time. That's when I received a mobile phone call. I thought that's what she was alluding to". 81 Mr Krockenberger in this area drew attention to the fact that the policy was described as a guideline only and the concept of hourly patrols of different areas meant that it was open to the Commission to take into account the custom of practice of the more passive second part of the shift in respect of patrolling. 82 He asked the Commission to take into account that the embarrassment suffered by the respondent to the media attention to the incident, meant that they had prejudged the severity of the alleged breach and acted on the basis of the need to make an example of someone. 83 Mr Krockenberger next dealt with the question of ongoing trust and the fact that the applicant was seeking the primary remedy of reinstatement. 84 Here he referred to the authority Concut Pty Ltd v Worrell anor. (2000) 103 IR 160 to support his contentions. The test arising out of the caselaw quoted to the Commission was that where misconduct is alleged to be a repudiation of the employment contract, it must be wilful and serious enough to destroy future trust and that the conduct of the employee must itself involve incapability, conflict or impediment, or be destructive of confidence. An actual repugnance between the acts of the employee and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises. He also referred to Burge v BHP Steel (2001) 105 IR 325, which he claimed was support for the fact that there is a presumption in law in favour of such trust, having been maintained in the absence of clearly proved intentional conduct vitiating such trust. 85 Mr Krockenberger, again repudiated the concept of the generic duties of security officers and claimed that it was not properly proven that Mr Habony was wilfully unresponsive, which could reflect a repudiation of the contract. 86 As to Mr Torbay's claim that it was "inappropriate to remain in the members bar/lounge for such a considerable period of time whilst on duty", the applicant did not deny that he was in the vicinity of the members bar for the period 3.34am to 5.15am. There was no evidence which positively established that he was seated for the entire period of time. Mr Krockenberger went on to say that the area involved had visual and auditory access to a large section of the Macquarie Street ground floor, which was an important area of the Parliament building, and given that he would have patrolled other areas on the way to the members bar, and testified that he was mobile in that large area of the members bar, it could not be said that he was static, and in other words, he patrolled an area as required by the policy, and while Mr Habony gave answers to Ms Klaassen which suggested that he had been watching television for the entire time, he had in fact only watched sporadically. Given the time involved, Mr Habony had in fact only missed one patrol of an area as per the policy. RESPONDENT'S SUBMISSIONS 87 Mr Britt began his submissions by conceding that in cases where an employee is suspected of serious lawful misconduct the observations of Hungerford J in Pastrycooks Employee's Union v Gartrell White No. 3 he make clear that the onus of making out a case and the burden of evidence rested with the employer. 88 Mr Britt also quoted the Full Bench decision of Bigg v New South Wales Police Service (1998) 80 IR 434 @ P455 as being also relevant to misconduct cases, where the employer bears the onus of proof. 89 He drew the Commission's attention to the accompanying concept that in the event that the respondent can establish misconduct, then the onus shifts to the applicant to establish that his dismissal was unfair. 90 He also conceded that in the circumstances of the applicant's dismissal, the respondent had the obligation of proving grounds on the civil standard of proof, as prescribed by Dickson J in Brigginshaw and Brigginshaw (1938) 60 CLR 336 @ 361 - 362. On this point he quoted from the High Court Decision of Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 @ P170-171, which highlighted the need to have sufficient strength of the evidence to establish facts on the balance of probabilities, where it was said: "thus authoritive statements have often been made to the effect that clear or cogent or strict proof is necessary (where so serious a matter as fraud is to be found). Statements to that effect, should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct". A similar approach was adopted by the Full Bench of this Commission in Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 and in Four Sons Pty Ltd v Limsiripothong (2000) 98 IR 1 . 91 Mr Britt submitted that the effects of these authorities was that the respondent should satisfy the Commission so that it is "comfortably satisfied" that the applicant is guilty of the misconduct. 92 At Annexure A of his written submissions, Mr Britt provided material which put into question the applicant's credit to the point he said where the Commission should prefer evidence of all other witnesses to that of Mr Habony. 93 At Annexure B of his written submissions, he provided the Commission with instances of the preferred evidence. 94 Mr Britt dealt with the various components of Section 88 of the Act which should be taken into account in unfair dismissal cases. He began with the first requirement of the section, that reasons for dismissal ought to be given to employees, drawing the Commission's attention to the areas where the applicant's own evidence, along with that of Mr Torbay, showed that this obligation had clearly been met. 95 As to whether those reasons had a basis in fact, as required by subsection (b) of section 88, Mr Britt dealt with the fact that the applicant throughout these proceedings, consistently and strenuously denied any wrongdoing. In this vein he drew the Commission's attention to the decision of Her Honour Justice Schmidt, in Lawrence v Catholic Education Office [2002] NSW IR Comm115, where Her Honour observed: "in circumstances where allegations of misconduct arise, it is common place for the employee concerned to vehemently protest his or her innocence. So, too, do those charged with, and even those convicted of crimes. Nevertheless, decisions must be made by employers, as to whether or not such protestations are to be accepted. The continued making of such protestations, cannot of itself lead to the conclusion that the misconduct has not occurred. …………… these proceedings are, however, not finally concerned with establishing the applicant's guilt or innocence. That has been dealt with in the criminal proceedings. This application is rather concerned with the question of whether the summarily dismissal in October, 1998 was harsh, unreasonable or unjust in circumstances which then existed". 96 Continuing in respect of subsection (b) of section 88 Mr Britt submitted that the respondent's reasons for dismissal had a basis in fact and relied on the fact that the respondent has a number of policies, such as "Security Policy - Lock Up and Alarms" of which the applicant was aware. Mr Habony also conceded that he was aware that the policy required, as a guideline, a patrol every hour. Mr Williams who testified on behalf of the applicant, also agreed that a security guard was required to patrol on the second part of the shift. 97 Moreover, the transcript during the testimony of Mr Andrews, showed that the Parliament House was not actually locked up, in view of the fact that the alarms had been de-activated at ten forty and at ten fifty p.m., which meant that the patrolling actually needed to be constant (as compared to the abovementioned guideline). Whilst patrols are not required to be carried out in any particular order because of the need for randomisation of security, in accordance with the policy on lock up and alarms, officers are required during lock up, when the CAMS and CONTINUM System has been activated, to patrol each individual area every hour. Whilst during lock up, there was no expectation for officers to patrol outside the building, it was expected that they would patrol the perimeter inside, including fire exits and fire exit doors as shown by the evidence of Mr Andrews. 98 Again, according to Mr Andrews evidence, if he was watching television for two hours and not patrolling, he would have breached the policy. Mr Williams also agreed with that proposition in his evidence. The applicant also conceded that during the two hours he was not checking the external perimeter from inside the building and areas such as fire escapes and that this was a breach of policy. 99 By the applicant's own evidence, soon after commencing the second part of the shift at 3am, he headed for level 7 and went straight to the security lobby desk, and then went to the area where the snooker table was located and remained in that area. This was established by the applicant's own evidence and that of Mr Andrews. He was in the area between 3am and 5.17am. 100 Mr Britt drew attention to the admission of the applicant in cross-examination to watching some television in the area, and that he believed he was watching sport and thought that it was a premier league soccer which finished after 5am. The applicant's further evidence was that he was watching television at 5.17am. The Commission's attention was drawn to the applicant's evidence that he liked to have a bet on sport and was so interested in the outcome that morning, that he may have had a bet. 101 In respect of the applicant's claim that he answered Ms Klaassen's questions fully, frankly and truthfully, it should be noted that he had told Ms Klaassen that he was watching television from 3am until 5.15am. The applicant had conceded that he had not undertaken correct patrols in that time. 102 Again, as to whether the reasons for dismissal have a basis of fact, Mr Britt took the Commission to the conversation with his supervisors just prior to 7am on the morning of the 28 October. On that occasion the applicant failed to answer questions put to him by Mr Renshaw, which the evidence in the transcript shows from the affidavits provided by Mr Renshaw and Mr Andrews, that the applicant failed to answer those questions put by Mr Renshaw. 103 Mr Britt next turned to the question as to whether the reason given to the applicant justified dismissal, and first drew the Commission's attention to the fact that the real issue is not whether the applicant was actually asleep, but that he had breached the respondent's policies by deciding to watch television for two hours and not performing his duties, and not responding to radio calls. He described that conduct as deliberate and a premeditated decision to make himself comfortable in the members' bar/lounge, and not perform his duties, knowing full well that a work colleague would cover for him. 104 There is no defence that the applicant was unaware of the respondent's policies, as it hardly needs to be said that a written policy is not necessary or a warning is not necessary against sitting watching television and not patrolling. The evidence also demonstrates the applicant's awareness of the policy "security policy - lock up and alarms". 105 Mr Britt provided the Commission with an extract of a decision of Commissioner Connor in Leonard v BlueScope Steel Limited [2007] NSW IR Comm 1023, quoting from page 30 - 32, which outlined a series of authorities where there was no intervention by the Commission in instances where employees had failed to follow basic security issues. The applicant's conduct in these proceedings is a breach of policies designed to protect employees and he seriously compromised the safety, not just of Parliament House, but also of his fellow employee, which shows that this is the appropriate basis for the applicant's dismissal. 106 The Commission needs to consider whether serious misconduct alleged in this instance was a wilful repudiation of the contract of employment, and in this vein referred the Commission to some other authorities, which among other things dealt with the instances where a single act of behaviour was held to have repudiated the contract on the basis of deliberate flouting of essential contract conditions. 107 Mr Britt referred the Commission to the decision of Dixon and Tiernan JJ in Concut and Worrell [2000] 103 IR 160 where their Honours said: "conduct in respect of important matters is incompatible with the fulfilment of an employees' 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 for dismissal……..but the 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". 108 Another extract from that decision was where the High Court said: "in Pearce v Foster, Lord Esher MR stated it to be rule of law that where a person has entered into the position of servant, if he does anything incompatible with the due or faithful discharge of his duty to his master, the latter has a right to dismiss him. 109 In Blyth Chemicals Ltd v Bushnell, in the course of considering the position of the respondent, who was the manager of the appellant's business, Starke and Evatt JJ said: "as manager for the applicant, the respondent was in a confidential position. And it is clear that he might be dismissed without notice or compensation if he acted in a manner incompatible with the due and faithful performance of his duty or inconsistent with confidential relation between himself and the appellant". 110 Reverting to the requirements of s.88, Mr Britt said that the applicant had an opportunity to respond to questions when he approached Mr Andrews and Mr Renshaw at Hospital Road around 7am on the 28 October. Secondly, he provided a written statement to Mr Renshaw the same day (see Exhibit 13 Annexure B). Thirdly, he was able to provide a statement to Ms Klaassen, the investigator, (see Exhibit 18 Annexure C). Fourthly, the applicant had the opportunity to respond in writing to allegations (see Exhibit 16 Annexure K), but there is no evidence that he took the opportunity set out to have an interview as well as to provide that written response. Finally, the applicant conceded in cross-examination that he had an opportunity to provide his version of events to Ms Klaassen in his updated memorandum to the clerks of the House. 111 In this area, Mr Britt referred the Commission to the well known authority of the Full Bench in Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 @ p389, dealing with the important area of procedural fairness. This was shown by the evidence to have been provided by the respondent when they put specific allegations to him, and ultimately the applicant, at least in part, admitted such conduct. 112 As to the question of whether the termination was harsh, unjust or unreasonable, there was no convincing evidence before the Commission, as long as the reason for termination was made out, that the dismissal was harsh, unjust and unreasonable. 113 In support of this contention, Mr Britt submitted that (amongst other aspects listed) the applicant - had committed an act of serious misconduct; in his position of team leader; he continued to deny any misconduct; he continues to blame Ms Iwanski rather than himself; has never apologised or acknowledged his behaviour; has been less than candid for the reasons set out in Annexure A dealing with the applicant's credit; engaged in misconduct which was unacceptable for the reasons set out by Mr Torbay in his affidavit at paragraph 32; and there were no special circumstances warranting mitigation for the penalty of dismissal. On this basis, the Commission should dismiss the applicant's application. 114 Mr Britt next dealt with the question of remedy in the event that the respondent was unsuccessful in defending the section 84 application before the Commission. He noted that reinstatement is the primary remedy under section 89 of the Act (Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd (2003) 128 IR 37 @ 125), but that other remedies should be ordered if reinstatement is impracticable. 115 He went on to deal with the relevant authorities in the area of practicality of reinstatement, namely, Perkins v Grace Worldwide (Aust.) Pty Ltd (1995) 72 IR 186 - applied by the Commission in Hollingsworth v Commissioner of Police (1999) 88 IR 282. The extract of Perkins v Grace Worldwide, emphasised the importance for the court to carefully scrutinise any claim by the employer that reinstatement is impracticable because of loss of confidence in the employee, but that each case must be decided on its own merits. It included the statement "what is important in the employment relationship is that there is sufficient trust to make the relationship viable and productive". 116 In this case Mr Britt suggested to the Commission, that should it decide to intervene, reinstatement of the applicant is impracticable. He referred again to the range of matters against the applicant listed in paragraph 26 of his written submissions, being - the severity of the misconduct; that the applicant did not appreciate the gravity of his conduct; that he continued to deny any wrongdoing; that he had not apologised for his conduct or shown any repentance; his lack of credit in these proceedings as shown by the examples at Annexure A of Mr Britt's submission; the nature of his role as a team leader; the nature of his role in security at Parliament House; the nature of his role being largely unsupervised; the conduct of the applicant in blaming others for his conduct; the applicant's subsequent conduct in taking keys on termination; the effect of the applicant's conduct on other employees; which could only be exacerbated in view of the fact that this matter has consumed the applicant for some nine months; and the speaker has lost trust in the applicant as an employee as shown by his statement of Exhibit 6. 117 Mr Britt next dealt with the ability of the Commission to award compensation in lieu of reinstatement for the applicant, should it intervene on his behalf, pointing out that given that the applicant was an undischarged bankrupt, then any income, for the purposes of the bankruptcy act, had to be paid to the applicant's trustee for distribution to the applicant and his creditors. 118 As to mitigation required by S89(6), the applicant's cross-examination showed that he made two unsolicitered approaches for employment with local firms, but had showed that he had made no applications for employment after late February, early March, and that he had made only a number of cursory inspections of the local newspaper. The Commissioner should also take into account the fact that he had been paid two weeks pay in lieu of notice. Response to applicant's submission 119 Mr Britt commenced his response to Mr Krockenberger's written submissions by pointing out that the Association's initial submissions had ignored the important evidence in proceedings, notably from the applicant himself, which actually established the misconduct of the applicant. 120 In respect of the claim by the Association that the applicant was not sure about what radio he had used, this was inconsistent with his actions and in particular, the fact that he had turned the radio off and on in front of Mr Renshaw and Mr Andrews. Mr Renshaw could tell that the radio had been working by hearing the static noise when it was turned on and off, although Mr Renshaw could not recall if a voice check had been conducted with the control room when the radio was in the applicant's possession in front of him. It would have been futile for him to have tested his radio in that manner if he was aware that it might not be his own radio. His subsequent evidence to that effect is a recent invention, when other excuses for not hearing the radio had fallen away. 121 Mr Britt disputed Mr Krockenberger's criticism of the matters relied upon by the speaker, on the basis that it did not diminish the considerations relied upon by Mr Torbay, who was taken out of context in respect of the applicant's need to follow policies. 122 In respect of the alleged changing of reasons for the applicant's dismissal, Mr Britt told the Commission that the applicant was not dismissed for allegedly being asleep. So Mr Krockenberger's submission in this regard was irrelevant. His submission further ignored that, by his own admission, Mr Habony was shown to have been watching television, probably watching sport and may have had a bet that evening, and where he told Mr Klaassen he had been watching television for the two hours when he was in the member's lounge, and conceded that he had not undertaken correct patrols. 123 The Association had a misguided reliance upon the evidence of the applicant that he had mistakenly given an over simplistic response to Ms Klaassen during her interview with him, when he had said in answer to her questions as to what he was doing between 3am and 5.17am, "basically just watching television in that area". The applicant's attempts to rectify his evidence (on the basis of being confused by the wording of the allegation) were highly unsatisfactory and not supported by the answer actually recorded and his evidence in these proceedings. It must firstly be considered on the basis that the hearing was the first time that the applicant sought to correct the answer he had provided to Ms Klaassen. It is unbelievable that such correction did not find its way into earlier correspondence and affidavits. The so-called proper explanation now relied upon by the applicant should not be accepted by the Commission. Accordingly, the Association's submission in effect ignores the evidence that the applicant told Ms Klaassen that he had spent approximately two hours watching television, which justified Ms Klaassen's conclusion. 124 In answer to the Association's criticism that the employer was wrong to accept that there was a duty on Mr Habony's part to regularly contact the control room, Mr Britt submitted that the basis for his termination was not that he had failed to regularly make radio contact with Ms Iwanski. 125 The basis for the Association's assertion in its written submissions that the applicant was effectively on a roving patrol, by moving around in the member's lounge/bar is not supported by the evidence, such as the interview with Ms Klaassen and the applicant's response to the clerks by correspondence received on the 22 January, 2008 (Exhibit 16 Annexure K) 126 Mr Britt next dealt with the Association's criticism of the allegation that the applicant had failed to answer questions put to him by Mr Stewart Renshaw, on the basis that that exchange was not a formal enquiry, and that the applicant had actually initiated the conversation, and which was quickly terminated by the more senior officer, Mr Andrews. He submitted that the issue was not whether it was part of a formal enquiry. Neither was the question of who approached who, relevant, but the evidence clearly demonstrated that the questions were asked, but not answered. 127 Mr Britt then referred to the Association's submissions that the findings of Ms Klaassen fell far short of the standard laid down in Brigginshaw v Brigginshaw anor. (1938) 60 CLR 336 when she assessed the proof on the balance of probabilities. The issue for the Commission was whether the evidence concerning the validity of the reason for termination satisfied the Brigginshaw test and not whether Ms Klaassen applied that test. Again Mr Britt referred to his earlier submissions highlighting the admissions of the applicant of having watched television, probably watching soccer and having a bet, telling Ms Klaassen he was watching television from between 3am and 5.17am and conceding that he had not undertaken patrols as required. The Commission should note the crucial difference between a less thorough patrol and not patrolling at all when it comes to the Association's reliance upon the patrolling practice adopted. 128 Also on that point of patrolling, Mr Britt reminded the Commission that the building was in fact not locked up (due to the fire door being left unsecured), as it was not alarmed, having been deactivated at ten past ten and ten fifty on the 22 October, just prior to the commencement of Mr Habony's late shift. 129 Further, there was no believable evidence that the applicant was seated for only a short time as now claimed in his testimony. 130 Mr Britt submitted that it was irrelevant that policies changed after the incident, as the applicant simply failed to abide by existing policies. 131 He disputed the Association's submission that it was open for the Commission to take into account the custom and practice and what Mr Krockenberger described as "even cultures bordering on non compliance" in a workplace when assessing whether the employee has been unfairly dismissed. 132 As to the suggestion of the Association that there was a need to make an example of the applicant, it was unfair on Mr Torbay to make such a suggestion without allowing him to respond to that allegation, and the Commission should disregard the Association's point. 133 As to the Association's contention in respect of the primary remedy for reinstatement and the earlier reference to the High Court decision in Concut and Worrell, going to the need for the conduct to be destructive of confidence and that an actual repudiation of contract obligations, the Commission should find that those issues were established here. 134 Mr Britt described as outrageous, the Association's suggestion that the applicant could not enter certain areas without disarming certain systems throughout the Parliament. This was simply not supported by the evidence, which established that the alarm systems were not activated at the relevant times. 135 The Association's submissions on an important matter dealing with the failure of the applicant to return keys taken by him on the 18 February, 2008 were attacked by Mr Britt as not reflecting the evidence. 136 He contradicted the Association's submissions in respect of the ability of the applicant to work in the future with Ms Iwanski should the Commission reinstate the applicant, and where it was claimed that the relationship would not have deteriorated as a result of her reporting these matters. 137 As to the Association's further contentions that the dismissal was unfair, Mr Britt yet again referred to the list of poor conduct provided above, as well as a detailed analysis of the applicant's own evidence and that of others at Annexure B of his submissions, which proved that the applicant's misconduct has well and truly been established. He further submitted that the evidence showed by way of the serious act of misconduct, as a team leader, denying any misconduct, blaming Ms Iwanski, never apologising, less than candid, as shown by the summary of his issues going to his credit and not being surrounded by any special circumstances. CONSIDERATION: 138 In this case of dismissal for misconduct the Commission was unusually assisted by the case law authorities referred to it by both advocates, dealing with the shift of the burden of proof, and the standard to be applied. The Commission has been able to properly satisfy itself as to whether or not the applicant's actions were deserving of dismissal. I have been very mindful to apply the tests outlined in those cases to the circumstances here. 139 Firstly, the reliance by the Presiding Officers of the Parliament as the employer, upon the report of Ms Klaassen to dismiss Mr Habony was not flawed as suggested by Mr Krockenberger. Her summary of her findings, outlined earlier was essentially consistent with the evidence before the Commission. 140 The treatment of the possibility of radio failure in the report for instance was not inadequate. This was established in the evidence before me when the radio was said by Mr Renshaw to have actually been tested in front of him, and found working. Whilst Mr Habony provided a form of denial of Mr Renshaw's evidence that the two-way radio was tested in front of him, he did so on the basis that the radio was not necessarily the one he had at the time of Ms Iwanski's calls - appearing to "have a bet each way" so to speak and, as Mr Britt effectively pointed out, why would he test the radio, if he had any idea that it was not the one he had on duty? That belated claim that he had replaced the radio back on the main charger-unit when he returned to the control room and subsequently took one which he could not be sure was the same unit, was not to be believed, for the reasons elucidated upon later, as too unlikely and illogical. Apart from anything else, the fact that such an important claim was not raised when one would expect it to be, when he had several opportunities, was another reason to regard it as a recent invention. 141 Still on the possibility of equipment/communication failure, the evidence has also satisfied the Commission that radio reception was at a premium in the area of the member's bar. The Commission's inspection of the radio function and battery installation left little or no prospect of dislodgement or of the volume being accidentally adjusted downwards, let alone turning off, despite Mr William's evidence as to that likelihood. The fact that radio units emit a beeping sound when batteries are low was also indicative. The units replaced older ones in comparatively recent times and evidence in support of the application as to the standard of equipment may have related to the superseded units, otherwise the evidence was likely to be contrived. 142 The Association's contention was firstly that he was not required to contact the control room, as claimed in the first charge. Mr Habony relied upon the lack of specific security procedures, in any of the policy directions or guides as to duties, to advance the argument that he was simply not required to contact the control room at any time during the second four hours of the late shift. However, whilst this much is correct, the Commission notes that it was only an issue because of the absence from the required patrol duties and was not of itself a key component in his neglect during that time. There was a much more important breach of policy, of which he was shown to be aware. 143 As to the first allegation, I have not accepted the claim that the applicant was confused by the terminology used in that charge, that he had been "absent from your place of duty", which he claimed to have misunderstood as leaving the premises. This he eventually said caused him to give an overly simplistic response to Ms Klaassen as to where he was and what he was doing for two crucial hours. He claimed this confusion during questioning under oath, as justification for "a regrettable failure to provide a complete answer to Ms Klaassen's enquiry" as to what he was doing for over two hours in the members lounge area, i.e. merely telling her that he was simply watching television from 3am to 5.17am. 144 The reasons for me rejecting this are expanded upon below, but are essentially related to it being so unlikely that he really would think that he was seriously considered to have left the building, and which was so easily refuted, as he immediately and convincingly did. His display of indignation could even have been calculated to distract Ms Klaassen from the real issues involved, but in any event, he had subsequent opportunities to clarify such an essential matter prior to hearing, but did not, until it was pointed out to him in cross-examination that he had admitted to Ms Klaassen to watching T.V. from 3 am until he was called on the mobile at 5.17am. 145 Mr Habony displayed an undue level of evasiveness, not just on the occasion of 28 October, 2007 but at other stages of the investigation, such as when he answered that allegation of being absent from his duties, claiming that it was "ridiculous", on the basis that he never left the precincts of the parliament. It would of course, become clear that the issue related to his absence from his prescribed duties of patrolling as the interview progressed, if he was ever in doubt. The fact that no one, including his supervisors, had made any suggestion up to that point, that they suspected anything beyond that he had been asleep, as an explanation for not answering the radio calls from Ms Iwanski, would have been uppermost in his mind, especially as he had been so defensive (and according to him - insulted ) at that suggestion by Mr Renshaw on the early morning in question. 146 His reference to the fact that the CCTV footage and swipe card readers would easily show that he never left the building confirms that he had no real fear or confusion as to what he was accused of and that became abundantly clear as the interview progressed, even if it was ever necessary. 147 The Commission has therefore not been convinced, either that Mr Habony ever had any misapprehension of what the allegation was about. Even if he had a genuine concern to the contrary (despite his expressions of confidence that the electronic records would vindicate him) it is beyond belief that he was in any way influenced to give a wrong answer as to what he did during the two odd hours that he verified that he was in the bar/lounge. Rather, it is more likely that he would have been relieved that the respondent's allegation was so easily refuted and disposed of - as he vigorously made to do. The fact that he only raised the issue in his oral evidence, and passed up earlier opportunities, (such as his written response of 22 January, 2008) gave every indication of being a spur of the moment invention to deal with the fact that he had admitted to such a long time watching television. 148 Accordingly, the Commission is unimpressed by the attempts of Mr Habony in cross-examination to resile from the statement that he gave to the enquiry that he watched television for the time he spent in the members bar/lounge. 149 Likewise, the Commission has not been able to give any utility to his evidence that he wondered around the bar/lounge area as a patrol. Such evidence, bolstered by Mr Krockenberger's final submissions, was clutching at straws, so to speak. In any event, the members bar/lounge area was certainly no substitute for patrolling of all the relevant areas, contemplated in the policy, even at the most favourable interpretation put by Mr Krockenberger. 150 Mr Britt throughout the case and in his submissions was unfazed by the approach by the Association on behalf of Mr Habony in relying upon a shift of onus and heightened standard of proof. He left little or nothing to chance in attempting to convince the Commission that it was altogether a too simplistic approach for Mr Habony to rely upon his own denials or assertions in evidence and for the respondent to bear the burden to refute. There were many aspects rightly identified by Mr Britt throughout the evidence to displace those broad contentions of the applicant, such as that he was merely following custom and practice in doing a relaxed style of patrol in the second half of the late shift. 151 He provided a detailed attack upon the applicant's credit, which in my analysis further on in this decision adversely affected the Commission's acceptance of the applicant's evidence as to certain essentials. and generally has led it to an adverse finding as to his credit. 152 An important matter relied upon by the applicant, was that, his dismissal was harsh, unjust or unreasonable, having regard to both custom and practice and the alleged ambiguity (and even absence) of instructions in the policy document as to patrolling procedures - highlighted by the changes instituted by management since the 28th October, 2007 incident. This has been considered closely, taking into account the obvious improvement in procedures, but rejected by the Commission, having regard to the fundamental breach of the inherent duty involved. Neither did the evidence of even Mr Williams satisfy that the so called custom followed by some but not all officers, of a more "passive" role in the second half of the late shift was little more than a blatant disregard of those fundamental duties during times when they could not be supervised. It is unsurprising that the respondent tightened its requirements, but this did amount to a previous acquiescence of slack behaviour by some security officers such as Mr Habony, compared to Ms Iwanski, who did not slacken off on the second part of the shift, although she was careful to acknowledge that she had heard of the practice. Even Mr Williams was careful to qualify his opening testimony as to the more passive role on the second part of the shift. 153 In respect to the second charge; the Commission had had regard to the more complete evidence as to why Mr Habony did not fully respond to the questions from Mr Renshaw (i.e., as to where he was, and whether he was asleep in the members lounge) and claiming that he did not actually fail to answer the questions as to his whereabouts, as put to him informally on the morning of 28th October 2007. 154 As to the attack by the Association upon the second allegation findings of the investigator, several things need to be considered. These begin with Mr Habony's evidence, that he was not at that stage within the formal investigation phase, that he had no idea he was being accused of misconduct, and felt insulted by the direct approach adopted by Mr Renshaw, which he said provoked his somewhat terse response of "Don't go there". It was also relevant that his more senior security manager, Mr Andrews, stepped in to prevent further questions as understandably highlighted by Mr Krockenberger. 155 Mr Habony initiated the conversation in Hospital Road, which took place during what he called a cigarette break and when he joined his supervisors who were looking for parts of uniforms discarded by the intruders as they left the building. He began by again casting aspersions on Ms Iwanski as to why he had not allegedly heard the radio messages she claimed to have sent (having earlier hopped into Mr Andrew's vehicle when he arrived and likewise cast doubt on whether she had actually tried to contact him). But this initiative by Mr Habony is a two edged sword, so to speak, dealt with more fully later (in that he did not suggest any possibility of radio failure as might be expected and indeed did the opposite). 156 Mr Andrew's blocking of further questions at that stage, at least shows that the respondent had not attempted to disadvantage Mr Habony by the informal questioning as to his whereabouts, when Mr Andrews intervened, after the applicant had stalled Mr Renshaw's questions as to his whereabouts with the response "Don't go there", to end the questioning on the basis that a more formal investigation was contemplated. 157 More importantly, it is a reasonable deduction that Mr Renshaw was provoked into his questions to Mr Habony, given the contentious way he approached the topic with his supervisors at the Hospital Road meeting, with the opening gambit (according to Mr Andrew's evidence and similarly recalled by Mr Renshaw) "You should look at Karen for this" (implicating Ms Iwanski). He even suggested that she was asleep. 158 In the circumstances, it was a natural reaction for Mr Renshaw, as his immediate supervisor, to counter Mr Habony's attack with his own thoughts and to throw back the challenge as to where Mr Habony himself was, and when that remained unanswered, to suggest he had been asleep. It was equally understandable that Mr Renshaw did not press the matter once Mr Andrews had indicated for him to desist. But that should not have prevented the applicant from explaining himself at that crucial moment, especially when the Commission has separately determined that he could not have had any doubt that Ms Iwanski had tried to contact him and his allegation against her was at best a diversionary tactic, or worse still, an unworthy attempt to shift the blame to her. 159 Surely it would have likewise been a natural thing for Mr Habony to have met Mr Renshaw's impromptu retort sensibly, and given a reasonable response if one was available. But the fact that he did not say where he was, and respond to the sleeping jibe, is surely something that the respondent was entitled to note - that he did not avail himself of the opportunity to clarify a very obvious and curious point, especially when he himself was being just as controversial towards Ms Iwanski's role, and therefore should not have been all that "insulted" to have had the tables turned on him by his supervisor asking a very obvious question. Indeed, Mr Renshaw's frank retort to Mr Habony can be said to have put him on notice that he needed to explain himself, if not immediately, than at the first reasonable opportunity, which, as it turned out, was later that morning when asked to provide a written report, (see Ex 13 Annexure A). 160 His reason for still remaining silent on the issue at the stage of the brief written report, where he had a second and "golden" opportunity to put an end to the controversy before things went too far, were he claimed, related to his training in Corrective Services Commission reporting - picking up from where he entered into an incident. This was an all too convenient but nonsensical excuse in the circumstances. 161 My reasoning throughout this decision is on the basis that I have been left in no doubt that Ms Iwanski did indeed try to continuously contact Mr Habony on his radio, which is a major finding dealt with separately. 162 As already touched upon, it was also curious to say the least that Mr Habony did not at the crucial juncture of the impromptu chat with his supervisors, when things were fresh in the mind, suggest that equipment failure was a reasonable explanation, as he did eventually for these proceedings and less directly to Ms Klaassen. Nor did he at the next crucial stage mentioned above, when asked to provide a written report just hours afterwards. This supports Mr Renshaw's other important testimony that the applicant verified to him that his radio was working. 163 It should be noted here that the Commission has preferred the evidence of Ms Iwanski that the applicant's first response to her was that his radio must have malfunctioned, which makes it all the more extraordinary that he wouldn't have relied upon that when approaching his supervisors around 7am at the Hospital Road entrance, instead of blaming Ms Iwanski. 164 Given that he was the leading hand who had just spent around two hours in the one location away from the action, Mr Habony should have felt an additional responsibility to answer properly. It was therefore a reasonable matter for his failure to respond to Mr Renshaw to be included in the charges to be investigated and Ms Klaassen's report summary, especially since Mr Habony had still not offered the information when given a follow-up opportunity - the written report. 165 Accordingly, the Commission has not found any significant difficulty with the findings of the investigation, by way of Ms Klaassen's Summary reproduced earlier in this decision, which was qualified to note the informality of the process when it came to assessing Mr Habony's failure to answer Mr Renshaw. 166 Having canvassed the reasons for the applicant's dismissal, to do with his prolonged effective absence from duty and his failure to respond properly to initial questions as to his location and demeanour during that period, there remains significant aspects of the events on the 28th October to be considered by the Commission. 167 These included assessments of the applicant's credit on specific issues, as they in turn then impacted upon the Commission's ability to accept his direct evidence in competition with rival evidence on a variety of issues, including the alleged custom and practice of a more passive patrol during the second half of the shift; the policy/procedures required to be followed in the circumstances; and further examining the prospect of some equipment failure. Applicant's Credit : 168 The issue of Mr Habony's credibility was important in this case where, as already focused upon, he understandably relied upon the shift of onus and the proper standard of proof being applied in cases involving dismissal for misconduct. 169 Mr Brit, in maintaining that the applicant's evidence should not be preferred over any of the other respondent witnesses, went to some trouble to identify in Annexure A to his final submissions, areas where he believed the Commission should find that the applicant had demonstrated contradictions of his own evidence and given inconsistent versions on occasions, including in relation to his own behaviour. 170 As already touched upon, the Commission has not been able to seriously depart from Mr Britt's contentions as to credit and, by way of examples, has agreed with the following aspects as to the applicant's inconsistent versions in his evidence: · In relation to efforts at obtaining alternative employment, where the applicant was shown to have shifted his position to an unsatisfactory extent and which could not be reconciled on the basis on some confusion. An embarrassing series of backdowns is shown in the transcript. · Contrary to the claims of answering Ms Klaassen fully, frankly and truthfully, he claimed on one hand to have watched television for the two hours approximately on the morning of the 28 October, 2008. That was contradicted by his oral evidence, with a radical shift to having watched only some television and moving around the members bar area. · Allied to that, he then claimed not to have been specific enough to Ms Klaassen as to what he actually did during that time in the member's lounge, claiming to have been reacting to some confusion that he was being charged with having been away from the workplace. The Commission has not accepted that such confusion was likely for the reasoning expanded upon earlier in this decision. · He vehemently claimed in respect of the policy in his affidavit, that it provided for and even "required" a more relaxed patrol policy for the second four hours of the late shift, yet when asked to point out where the policy allowed for the second part of the shift to be less active than the first part in cross-examination, he had to acknowledge that the policy did not call for a more passive patrol. · The applicant contradicted himself in oral evidence where he adamantly claimed that Mr Andrews had not asked him to clear his locker. Yet at paragraph 2 of his rebuttal statement Exhibit 3, he acknowledged that Mr Andrews had asked him. Yet , towards the end of that oral evidence, Mr Habony, despite unequivocally denying being asked by Mr Andrews at the beginning of his oral evidence, reverted under further cross-examination to suggesting that he could be wrong, but only after giving emphatic evidence to the contrary. This at least indicated how careless the applicant was prepared to be when giving evidence. · Contrary to his evidence of being full and frank towards the investigation, the applicant's account of his discussions with Mr Renshaw and Mr Andrews was untrue, where he told Ms Klaassen with some gusto, that he had never before her enquiry being asked where he was. 171 This last instance of the applicant's lack of credit (and which contradicted Mr Harbony's claim of being full and frank with Ms Klaassen), occurred in response to the question by her as to why he had not responded to Mr Renshaw's questions as to his whereabouts - during the following exchange: WK: Okay, for the record, there's a file note dated Tuesday the 6th of November which was prepared by Stuart Renshaw and it outlines details of a conversation which Stuart Renshaw said that he had with you on the 28th of October 2007. Having had the opportunity to review that file note, in which Stuart says that, that, I'll just get the exact wording. Okay, at point 8, it says Andrew Habony stated that his radio was on and he had it tested before leaving the control room. However he did not say where he was during the time of the incident. He further said that he put it to you that you were asleep in the member's bar while Karen was calling you on the radio. And to that you responded, don't go there. And further reiterated your request for the actions of Karen Iwanski to be looked at. In essence what, what's being alleged is that he asked you a number of questions as to your whereabouts and that you did not answer those. How do you respond to that allegation? AH: The first question I've been (sic) about that incident, this is now 29 November. This incident was 28 October. The first question anyone has asked me about it was you about fifteen minutes ago. This was clearly incorrect and Mr Habony would have known this, particularly given his evidence of being insulted by Mr Renshaw's question as to whether he was asleep, which would not be easily forgotten. The Commission has elsewhere considered individual issues relied upon by Mr Habony and separately included its reasons for not accepting his testimony. Ms Iwanski's Credit 172 The Commission has been able to be entirely satisfied with the veracity of Ms Iwanski's evidence. In the process it has closely examined the question as to whether there was any doubt that she attempted on three occasions to call the applicant on his radio at the times she claimed. Another important aspect of her evidence was in relation to hearing the applicant test his radio as he proceeded out to patrol duty. Also of relevance to other findings was her hearing him initially say to her when she contacted him by mobile phone, that his "radio must be faulty" 173 The Commission has been impressed with the fact that she conceded those matters as highlighted by Mr Britt in final submissions, and generally gave straightforward and direct answers and had a guileless and convincing manner in her responses. 174 There was also a distinct lack of motive for lying about her attempts to radio Mr Habony, especially given that Mr Habony did not at any time provide any reason why she had lied, despite trying to shift the blame to her. 175 It defies logic that a young female officer of relative inexperience, faced with a security officer's worst nightmare of observing an intrusion into a strategic building like the State Parliament, especially with all the publicity about the prospect of terrorist targeting of key public buildings, would not immediately attempt to contact her leading hand co-worker who was in the building for assistance and guidance and/or to check on his welfare, just as she claimed to have done and as she told her supervisors whom she finally contacted. The fact that she contacted not only The Rocks local police station and insisted that they come, despite their reluctance, even though she observed two intruders exiting, (on the basis that she was unsure that one remained on the premises) indicates her sense of danger and that she would hardly have chanced ignoring Mr Habony, even though he had proved difficult to get along with in the past. Her evidence was that, although it did not make for a pleasant working environment, he did speak about work related issues at least. She convincingly gave evidence that she had expressed her concern for him to the police, who apparently suggested that he was asleep. 176 The fact that she was not able to get the Security Supervisor Mr Renshaw on the phone at his home must have added to her anxiety and was a further reason that she would have tried Mr Habony several times at that juncture, just as she testified. 177 Her evidence as to why she did not herself think to try Mr Habony's mobile, but had to have it suggested to her by her supervisor, was entirely plausible, given the tense situation with the police, who had told her that they were not keen to attend, due to other problems they had that night, after she had told them that two intruders had left the building. She had to insist they attend on the basis that she thought that a third intruder may have entered and not yet left. Also, radios were the prescribed mode of communication, as reinforced by the annexure to Mr Renshaw's affidavit mentioned earlier. After all, Mr Andrews also did not think to use the mobile phone list and neither did the police suggest that he might have a mobile. The fact that it did not occur to her to use the public address system is also natural in the circumstances and, although she did not say so in evidence, such a blatant technique of communication stands out as a dubious strategy and even risky in the circumstances where a third intruder was thought by her to be still in the building. 178 Perhaps an equally important finding in this area is that it beggars belief that the applicant himself could have had any doubt that Ms Iwanski had tried to get him on the radio. His exhortations to both supervisors to the contrary, dealt with more fully elsewhere, were unworthy and merely indicative of his own guilty feelings for being off the air, so to speak. 179 There are a number of things flowing from the favourable assessment of Ms Iwanski's credit, as earlier flagged and these and other implications are also dealt with below. Mr Renshaw and Mr Andrew's Credit 180 The Commission had no cause to doubt the evidence of either of Mr Habony's supervisors whose account was straightforward and largely corroborative and was to be preferred over Mr Habony's conflicting evidence. Equipment Failure ? 181 As to the evidence of Mr Habony that he placed his radio back in the control room radio docking bay, this firstly had to compete with the evidence of both Mr Andrews and Mr Renshaw, who said that the applicant had tested his radio and that it was working. His later claim of placing his radio on the charger and taking another, is of course in contradiction to this comment to his supervisors, but is found by me to be so unlikely and illogical, for reasons expanded upon below. 182 The respondent's evidence, through Mr Andrews file note of 8th November (Ex 17 Attach C Para 43) was that Mr Renshaw had asked the applicant if he had a radio with him and that Mr Habony had replied that he had and that it was working. It is less positive as to whether Mr Andrews also saw him actually physically check the radio, as claimed in Mr Renshaw's evidence. 183 Mr Renshaw's evidence was more direct (Ex 13 Para 21 and at T2/6/08 P65 L45) where he contended that Mr Habony had actually tested his radio in front of him to check that it was working. He was tested on this in cross-examination and re-examination and gave a convincing account, especially when taken with the wider evidence in this area. 184 This evidence had to be compared and contrasted with the applicant's evidence under cross examination (T2/6/08 P26 L42) where he agreed (consistent with what he told Ms Klaassen) that he had tested his radio upon leaving the control room at the start of the second part of his shift to go on patrol, as required by policy and found that it was working, but appeared to slide away from any certainty when pressed. He went on to respond that he did not know as to whether the radios emit a beeping noise if the battery is low. Mr Habony's oral evidence in this area shifted from what he told Ms Klaassen, along with what he said according to the preferred evidence of Mr Renshaw and Mr Andrews. 185 Under cross-examination he could not recall saying to Ms Iwanski when she contacted him by mobile phone "My radio is faulty, I'm coming down to the control room". In a further complication to be considered in the mix of this area of the evidence, he agreed with the proposition put by Mr Britt that he had not tested his radio at that time, i.e. at 5.17am after he was contacted by Ms Iwanski on the mobile phone. Because of the confidence shown elsewhere in this decision that the Commission was able to have in her credibility, the Commission has accepted Ms Iwanski's evidence of the comment about a faulty radio been made to her by the applicant over the mobile phone. 186 There was strangely no further conversation between Mr Habony and Ms Iwanski upon his arrival in the control room around that time and no further mention to her as to the state of his radio. Whilst this is unusual in the circumstances, it may be at least partly explained by the fact that the applicant barely spoke to her, but might also have been because he did not wish to clarify the state of his radio so as to rely upon some uncertainty later, or to commit to any explanation, as might normally be expected in the circumstances. If he genuinely thought his radio was faulty, he would have seized upon that and taken great care to establish the fact when opportunities presented themselves later that morning. 187 It is noteworthy that he never questioned or accused Ms Iwanski to her face that morning that she did not radio him, which is a further indication that he knew she had done so as she claimed, when faced with the sudden emergency of the intrusion. He could not have been too concerned to offend her, given her preferred evidence as to their poor relationship and his subsequent attempts to implicate her. 188 It was therefore of some significance that during the other conversation, when his manager Mr Andrews arrived around 6am, when he jumped into his manager's car upon arrival, that Mr Habony did not mention the possibility of equipment failure, but this was the first of two such informal exchanges early that morning when he used the occasions to implicate Ms Iwanski, with the opening announcement to the effect of "This is Karen's fault". This has to be another indication, along with the further impromptu conversation at the cigarette break around 7am described above, that the applicant himself did not believe that there was anything wrong with his radio, especially in view of the above separate finding in this decision that his immediate response when finally contacted on the mobile phone by Ms Iwanski was to say "my radio must be faulty". 189 Not only was the alleged radio failure not raised again, as should be expected at either of the impromptu meetings initiated by him with his supervisors after their arrival at the scene, but he persisted with attempting to shift the blame onto Ms Iwanski; did not raise the prospect of equipment failure in his written report the same day; and even more profoundly - admitted to his supervisors that his radio was working, as dealt with above. 190 The applicant's contentions as to equipment failure were only rather indirectly put forward in conversation with Ms Klaassen during her interview with him (Ex18 Attach C P. 10 L30) on the 29th November. There he said in answer to a question as to the radio reception in the members lounge area: " I don't know off hand. We've raised concerns with management prior. The equipment we use, I don't know how to describe it. It's rubbish, it's cheap, it's junk. And they're notorious for it. So we've raised that with him over the years and we're stuck with them. All I know is, when I left the control room, I clicked it, it worked there. I can't comment on what happened after". This statement to Ms Klaassen appeared as opportunistic, exaggerated and far too sweeping on such crucial aspect. More importantly, it was contradicted by other expert evidence about reception and the updating and reliability of radios. 191 It was also clear from the evidence from Exhibit 15, to do with technical matters, tendered unchallenged in proceedings, along with the evidence of Mr Renshaw and Mr Andrews, that the particular area of the members lounge, where the applicant was located, enjoyed premium reception. 192 In the submission by the union on behalf of the applicant dated 9th November (Ex16 Attach D) the Association claimed that Mr Habony had not received any calls from Ms Iwanski because he was either; in a "black spot"; radio or the battery failed; or that Ms Iwanski had not tried to contact him at all. 193 Again that had to be considered in the light of his failure, as canvassed above, to have relied upon the equipment failure option when one would have expected him to have done so and indeed when he did the opposite. 194 Mr Williams in his evidence did suggest that radios could be accidentally adjusted whilst being carried, but the Commission has had the benefit of first hand demonstration during proceedings as to the function of the radio which showed that it was most unlikely that the radio malfunctioned in any way and it would seem near impossible to switch off by rubbing against clothing or pockets as suggested. The evidence of Mr Renshaw and Mr Andrews was consistent with this finding. The Commission's own testing of the radio therefore left no doubt that, apart from the fact that the members bar/lounge enjoyed good reception, the batteries were not easily dislodged and neither was the volume easily turned down as also suggested by Mr Williams. 195 The so-called uncontradicted evidence of Mr Habony, emphasised by Mr Krockenberger in his final submissions, that he had replaced the radio that he had that morning back on the main radio charger-unit when he returned back to the control room, viewed in the light of the above inconsistencies, is not to be believed. The prospect of someone in Mr Habony's situation - even putting aside that he had just said to Ms Iwanski that his radio must be faulty, as she testified - putting the alleged malfunctioning radio on the charger, is inconceivable. Mr Habony was shown to be very much aware of the prospect of shifting the blame away from himself on that particular morning, and he would be most unlikely to have been careless enough to have put his radio where it could not be tested. The defence raises several questions such as to why he would place his radio on the main charger when he had not finished his shift until some two hours later, especially as he was likely to have been called again on his radio before completion of his shift at 7am, given the activity going on involving his supervisor and manager on site that morning. Of course, the evidence from Ms Iwanski, which has been accepted by the Commission that he had already claimed that it was faulty, would make such a proposition unbelievably stupid of him. It is most likely that the prospect was raised belatedly as a last minute decoy in the hope that the shift of onus would allow it to gain currency with the Commission. PSA Criticism of Procedure 196 The union's criticism of the evidence of the Speaker, Mr Torbay as the employer (Ex 16 Para 32) for including generic security requirements in the matters he had regard to, as somehow not being the responsibility of Mr Habony as a base level security staff member - international terrorism being supposedly a matter for management - has been rejected by me. The responsibility for increased awareness of security concerns in recent years surely resides at all levels as being an inherent requirement of all security forces, especially at prominent sites such as the Parliament of New South Wales. 197 The Commission has not been able to agree with Mr Krockenberger's assessment of the manner of decision making by the Presiding Officers of the Parliament, as the employer. It was open to the Presiding Officers to have accepted the report of Ms Klaassen, especially as encapsulated in her Summary - outlined above, if for no other reason than the applicant's submissions to them did not contain any concrete or convincing contradiction to the matters contained in the report and its attachments. Moreover, the report was not the end of the process of consideration. 198 The Commission has been satisfied that the Presiding Officers had before them accurate material on which to make their decision, which was to finally dismiss the applicant. This firstly included the report of Ms Klaassen, where she highlighted in the Summary of her decision, (outlined earlier), her findings from her investigation. The wording of the final pages of her report show amongst other things that by being sedentary and not conducting a roving patrol, Mr Habony was not at his place of duty. It also notes that Mr Habony did not notify the control room of his location at any time after leaving the control room at 3.15am. She reflected as to why she preferred the evidence of Officer Iwanski and satisfied herself that Mr Habony's radio was fully functioning at the time Officer Iwanski attempted to contact him. Importantly, she concluded that she was not able to establish why Mr Habony failed to respond to the calls, although she suggested that it was likely that he was asleep and going on to indicate that the members lounge area had several large leather sofas upon which Mr Habony "would have been easily able to lay and fall asleep". On that basis, and other reasons, included in the final summary of her report, she found the first allegation to be sustained. 199 As to the second allegation, Ms Klaassen summarised the situation by saying that, on balance, she found that Mr Habony had not answered questions regarding his whereabouts put by Mr Renshaw, basing that finding on the statement given by Mr Renshaw and a file note made by Mr Andrews in relation to the conversation on the morning of the 28 October, 2007. In the process of assessing that particular allegation, she took note of Mr Habony's submissions as to his perception of the nature of the conversation, but noted that Mr Renshaw, as senior officer, was clearly gathering information to establish the facts of the incident, and that it was Mr Habony's duty to respond properly to the questions put by Mr Renshaw. On that basis, allegation two was also sustained. She noted also in that connection that Mr Habony provided very limited information when given the opportunity to provide a written report the same day, although Mr Renshaw had not asked specific questions as to his whereabouts to be included in the statement. Her recommendation to the Presiding Officers was that the matter be continued to be treated as a disciplinary matter, noting that the applicant, was an experienced officer and assumed the position of leading hand. 200 The Commission has also noted that the Presiding Officers had the benefit of a submission prepared by the Human Resources Manager, Ms Schofield, dated the 12 February. In that document a wide range of issues were canvassed, including the fact that the respondent bore the onus of proof to a proper standard of proof and went on to rely upon the findings of the investigator. The submission to the Presiding Officers covered aspects of mitigating/extenuating circumstances, the applicant's employment history, whether the conduct had been the subject of previous counselling, whether the policy and guidelines applicable to the conduct were in place and the effect of any proposed action upon the employee. 201 The Commission is therefore satisfied that when the Presiding Officers made a decision to dismiss the applicant, that they had before them a proper assessment of the facts and took appropriate matters into account. CONCLUSION 202 The respondent has discharged the onus of proving the essential matters relied upon in this case. 203 The applicant's credit was found to be poor when the various inconsistencies in his evidence pointed out by Mr Britt and recognised by the Commission were taken into account, with implications to various aspects of his evidence, although the Commission has also relied upon other deductions to deal with the important direct evidence of Mr Habony. 204 Ms Iwanski's evidence by comparison was found to be entirely reliable and, where it conflicted with the applicant's testimony, her evidence was to be preferred. No adverse finding could be made against any other of the respondent's witnesses either and the evidence of Mr Renshaw and Mr Andrews was to be accepted where it conflicted with Mr Habony's testimony. 205 The evidence in this case shows that the respondent has discharged the onus to establish on a satisfactory standard of proof that the applicant, Mr Andrew Habony, was effectively absent from his place of duty when he did not patrol as required, but remained in one place for an extended period of around two hours and failed to answer his radio calls made to him by his co-worker during an emergency at Parliament House Sydney on 28th October 2007. 206 It is not necessary for the respondent to show whether Mr Habony was actually asleep as speculated upon in the report commissioned by the Presiding Officers and suggested by others at the time, or to provide proof of some other explanation, such as that he was likely to have been gambling on a football match on the television. Although this would not have been all that inconsistent with his own evidence, that he may have had a bet on an international football game that he was watching. 207 The important fact, established to the Commission's satisfaction, was that he was watching television for the bulk of the time, as he originally told Ms Klaassen. His attempt to qualify his own admission as to that at the hearing was not to be accepted for the reasons outlined earlier. His conduct was in contravention of the patrolling policy/guidelines, of which he was aware, and which required one hourly patrols when the building was locked. But the building was not locked as such, as mentioned earlier, being somewhat mysteriously unlocked just prior to the official start of the applicant's shift. The failure to secure the fire door used by the intruders (and apparently used by smokers) since the previous Friday afternoon shift was an extraordinary situation, not solely the fault of Mr Habony, but again points up the neglect in his behaviour in not patrolling the internal perimeters and discovering the open door, before retiring to the members bar for around two hours. 208 The situation was compounded by the failure to contact the control room during that extended period of inactivity. And whilst there was not normally such a requirement, during patrols, it was reasonable as leading hand not to leave a comparatively junior officer without contact, in circumstances where he was so inordinately inactive and distracted from his duties. 209 Unfortunately for the applicant, the unthinkable happened whilst he was effectively absent from his patrol duties and, given that the Commission has been convinced that equipment failure was not a factor in him not hearing Ms Iwanski's distress calls, he was correctly found to have seriously departed from the basic and inherent requirements of his role. 210 The Commission has given consideration to the Association's submissions as to whether or not the penalty of dismissal was too harsh a penalty in all the circumstances, taking into account his eight years of satisfactory service with the respondent. 211 The real issue established here was that the respondent was entitled to treat such a fundamental breach of his responsibilities as misconduct deserving of dismissal. 212 In terms of the relevant case law, provided by both advocates, the Commission has been satisfied that the applicant's behaviour represented a repudiation of the contract. His actions were so destructive of the relationship that dismissal was justified, following an elaborate enquiry, which canvassed all relevant issues and interviews with the relevant range of people. Mr Habony conceded that if he had spent two hours watching television that such conduct would be destructive of the need for mutual trust in his position of security officer, especially when working unsupervised hours. This was the test laid down in Concut and Worrell. Likewise, the conduct was incompatible with the employment contract, to the extent espoused in Blyth Chemicals Ltd v Bushnell referred to by both advocates. Every opportunity was provided to the applicant to satisfy the respondent before, during and after the official enquiry as to reasons why he should not be considered for termination. His inconsistent approach did not assist him on the question of trust and his failure to take the opportunity to respond, when a natural opportunity presented itself at around 7am that morning. It was reasonable that this counted against him, when taken in concert with his explanations to the official enquiry. 213 The applicant was shown to be aware of the security policy/lock up and alarms requirements, which required patrols during a lock up as a guideline of one per hour in different areas, as already indicated, but on that particular night, the Parliament House was in any event not locked up since the alarms had been de-activated not long before the commencement of Mr Habony's shift. Strictly speaking, this meant that the patrolling needed to be constant, which should be done on the basis of randomisation for additional security. When the building is actually locked up there was still a requirement to patrol and check the internal perimeter, including fire exits. Mr Williams also conceded a need to patrol. Mr Habony agreed in his interview with Ms Klaassen that shortly after 3am he had gone to Level 7, and he was in the member's bar for the whole of that period, until 5.17am. He admitted in cross-examination watching some television, believing that he was watching sport, which he thought was premier league soccer he testified that he likes to bet on sport. and may have had a bet on the result that morning. He was watching television when finally contacted on his mobile phone at 5.17am. Other Matters: 214 If I am in error in deciding against intervention in this case, there are several reasons why I believe it would be impracticable to reinstate Mr Habony, even if his dismissal had been found by me to be unfair. 215 The first of these is that the applicant at no stage showed any acknowledgement that his absence was against either policy or against what would be inherently be required in the role of a security officer. A profound absence of a sense of responsibility was evident as indicated on several fronts evident throughout this decision and highlighted by Mr Britt in his closing submissions, including his post-dismissal conduct. 216 The applicant was found to have been at least extremely careless in his dealing with the important matter of first obtaining the key just prior to his dismissal interview on the 18 February, and then advising his security manager, Mr Andrews that he did not have any keys when asked straight afterwards. When approached on the telephone some days later by Mr Andrews when it was discovered that he had taken a key on his arrival for his dismissal interview, which he could hardly have forgotten in such a short time, his handling of the telephone call, (which understandably left Mr Andrews with the impression that he had hung up on him), was again displaying a level of carelessness, if not deliberately evasive, which is unacceptable in his role. The fact that the respondent required the intervention of the PSA to obtain the key was further indicative of an extremely poor attitude of the applicant to the essential requirement of his role, with the prospect that the key system might have to be replaced. 217 Overall, the Commission has no confidence in Mr Habony's future appreciation of his role upon reinstatement, were the Commission found to be in error in declining to intervene. 218 I have also had regard to caselaw on the practicality of reinstatement, including Perkins v Grace Worldwide (Aust.) Pty Ltd (1995) 72 IR 186 and Hollingsworth v Commissioner of Police (1999) 88 IR 282. 219 Another reason that it would be impractical to reinstate the applicant was shown in the evidence of there being a very poor relationship between he and Ms Iwanski to a point where he barely spoke to her and where the Commission is satisfied that the applicant had no justification for imagining Ms Iwanski had not contacted him and yet he persisted on several occasions with attempting to blame her for his own shortcomings. Despite his unconvincing evidence to the contrary, I am satisfied that reinstatement would not be appropriate from the point of view of re-establishing the relationship with Ms Iwanski. It was through no fault of hers that she was forced to play a central part in his dismissal. Mr Andrews gave evidence of a worrying tendency by some of Mr Habony's colleagues to hold developments against her, which might be exacerbated if he was reinstated. 220 The attempt to implicate Ms Iwanski in a very active way by approaching his manager, and then again approaching both his supervisors outside the Hospital Road entrance, indicated that the applicant had absolutely no remorse for his shortcomings. Overall, he could not be trusted either in his future working relationship with Ms Iwanski or to operate in an unsupervised way to carry out the essential requirements of his job 221 The application by the amalgamated union on behalf of Mr A Habony is accordingly dismissed. J P Murphy Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.