Industrial Relations Commission of New South Wales CITATION: Gordon v Juvenile Justice Dept.NSW [2009] NSWIRComm 1046 APPLICANT: PARTIES: Mr Neil Gordon RESPONDENT: Juvenile Justice Department NSW FILE NUMBER(S): 184 of 2009 CORAM: Ritchie C Unfair dismissal termination of employment employee terminated misconduct - three reasons given. application 30 days out of time. Applicant had difficulty obtaining legal advice over Christmas/New Year holiday period. Had financial difficulty with the fee.Had placed respondent on notice that he would appeal the decision to terminate. CATCHWORDS: Applicant had established sufficient reason for Commission to exercise discretion. Commission found proven the first two reasons for termination but also found that the applicant had not been trained in the procedure and that this was his first time in carry out the procedure. Senior officer watched process but did not intervene. No disciplinary action taken against this officer. Commission found that the none complying with procedure did not warrant termination. The Commission found that the respondent had not proven misconduct with respect to the third reason for termination. CCTC inconclusive and no supportive evidence from witnesses appeared before Commission. Commission found termination harsh, unjust and unreasonable. Ordered reinstatement and backpay. LEGISLATION CITED: Industrial Relations Act 1996 Griffith Ex-Services Club Limitedv Federated Liquor and Allied Industries Employees Union of Australia(New South Wales Branch)(1993)51IR 186 Martin v Nominal Defendanf 91957) 74 WN (NSW) 121 CASES CITED: Brisbane South Regional Health Authority v Taylor)1996) 186 CLR Sydney Ferries Corporation v The Seamen's Union of Australia, NSW Branch on behalf of Levy [2009]NSWIRCComm 126. Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48IR 296. HEARING DATES: 23/07/09,24/07/09 DATE OF JUDGMENT: 14 August 2009 APPLICANT: Mr A. Britt of Counsel SOLICITORS: LEGAL REPRESENTATIVES: John Walsh & Partners RESPONDENT: Mr J Murphy of Counsel Mr M Lillico-Thompson of Juvenile Justice Department NSW DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: RITCHIE C. 14 August 2009 Matter No IRC 184 of 2009 IN THE MATTER OF: Neil Joseph Gordon and Juvenile Justice Department of NSW Application by Neil Joseph Gordon re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2009] NSWIRComm 1046 Background. 1 Mr Neil Joseph Gordon (the applicant) filed an application under section 84 of the Industrial Relations Act 1996 (the Act) on 13 February 2009. The applicant was terminated from his employment with the Juvenile Justice Department of NSW (the respondent) via correspondence dated 9 December 2008. The applicant received this correspondence on 16 December 2009. The application was therefore out of time in its filing. 2 The matter came on for teleconference conciliation on the 3rd, 13th, 17th March 2009 and 30 April 2009 but did not settle. A direction for the filing and serving of evidentiary material was given and the matter was subsequently set down for Hearing on 7,8 and 9 July 2009 in Grafton. At a mention on 25 June those dates were cancelled and the dates of 23 and 24 July were substituted. The hearing was completed on 24 July 2009 and the decision reserved. 3 On 3 March 2009 the respondent filed a draft Order seeking that detainees involved in this matter were to be referred to by their initials. Whilst it would seem this draft Order was not brought to the attention of a member of the Commission prior to the hearing taking place, the applicant consented to its contents. 4 It was brought to the attention of myself during the lunch break on the first day of the hearing that no transcript was recorded that morning. Prior to returning from the lunch break I advised the legal representatives of both parties of this situation. Both legal representatives advised that it would be impractical to have the applicant recount his evidence. Collectively both representatives sought for the Commission to rely on his notes and memory of what had been stated. Applicant's case. 5 The applicant commenced employment with the respondent in approximately April 2007 as a casual Youth Officer located at the Acmena Juvenile Justice Centre (Acmena). His duties included maintaining security, supervision of youths, transporting youths, role model, distribution of meals, cleaning and ensuring the safety of staff and youths. He received training as a unit worker and youth worker. He stated that he never received training in respect to the transportation of detainees. He stated that he had applied in late 2007 for a position as a full time Youth Officer. At the time of his dismissal he stated he was working between 30 to 40 hours over a five day week with occasions when he worked more hours working 7-8 days straight. 6 On 31 March 2008 he reported for work to commence at 6.00am. His job for the day was to escort two detainees DM and WC from Acmena to Armidale Local Court and then back to Acmena. He was assisted in this task by Youth Officer Mr Simon Scott and Senior Youth Officer Mr David Hipworth. 7 DM and WC were brought up to a holding cell where Mr Hipworth suggested that the applicant carry out the search of the two detainees. A blue plastic bag containing what the applicant believed were the detainees clothes was given to the applicant by an administrative officer. In turn both DM and WC changed from their clothes they were in, to their court appearance clothes. The clothes were then placed into the bag. The applicant watched both detainees go through this procedure. 8 The applicant stated that Mr Hipworth also watched this procedure. Both detainees had a water bottle for the trip. The applicant stated that he shook both bottles to make sure there was enough water for the trip. 9 During the trip to Armidale Mr Hipworth spoke to the applicant and brought to his attention that he had erred in giving the detainee the plastic bag when he should have taken out of the bag what clothes each detainee needed instead of allowing each detainee to handle the bag. The applicant was unaware that a detainee's bag may contain more than just clothes. The applicant apologised to Mr Hipworth stating this was his first time he had carried out the procedure and that it would not happen again. 10 On arrival at Armidale Police station the detainees were placed in holding cells. In a cell next to the two detainees an adult prisoner was placed whom the applicant was informed was an uncle of DM. 11 The uncle was moved to a cell further away from the detainees as a result of the noise he was making. Whilst waiting in an interview room, both DM and WC had a visit from their solicitor and DM also had a visit from family members and friends. 12 Post DM's court appearance, Mr Scott opened an external door and allowed DM's girlfriend and carers into the room and then into the interview room. After a few minutes the applicant said to Mr Scott that "this is long enough, we've got to get back over". 13 It was the applicant's view that DM's demeanour had changed drastically after the applicant had ended this meeting with his girlfriend and carers. 14 The applicant stated that DM was visibly upset as they left the courthouse to go back to the holding cells in the Police station across the road. DM's head was down and darting side to side and being more fidgety than normal. The applicant believed he was looking for a way to abscond. 15 Approximately 30 feet from the entrance to the holding cell premises the applicant took out an unlit rollie cigarette from his pocket and handed to DM. He said he did this to distract DM from his current situation and change his focus. 16 Prior to returning to Acmena the applicant asked both detainees if they required more water. DM did not need any but WC did. He then filled WC's bottle. When they arrived at Acmena another officer conducted a search of the two detainees. Whilst in the admission area Mr Scott grabbed DM's water bottle and opened it. Six to twelve cigarettes plus loose tobacco were inside. They were photographed. 17 The applicant finished his shift at about 7.00pm and went home. 18 The applicant continued to be offered shifts until early June 2008 when he received a letter from the respondent dated 5 June 2008. The letter signed by Peter Muir Acting Director General stated that the applicant may have engaged in misconduct. 19 The alleged misconduct was listed as follows: · That on or about 31 March 2008 prior to escorting detainee DM and detainee WC from Acmena Juvenile Justice Centre(JJC) to attend Armidale Local Court you allowed the detainees access to property bags which contained contraband in the form of tobacco cigarettes. · That on or about 31 March 2008 prior to escorting detainee DM and WC from Acmena Juvenile Justice Centre (JJC) to attend Armidale Local Court you failed to properly supervise the detainees when the detainees took the contraband from the property bags and concealed it on themselves. · That on or about 31 March 2008 prior to escorting detainee DM and detainee WC from Acmena Juvenile Justice(JJC) to attend Armidale Local Court you failed to properly search detainee DM and Detainee WC and thereby allow them to conceal the contraband on themselves and take it out of the centre and maintain possession of it until it was detected during a search when the detainees returned to the centre. · That on or about 31 March 2008 while escorting detainee DM to the holding cells at Armidale Police Station after the detainee's court appearance you gave detainee DM a cigarette and allowed him to smoke it. It then advised that a Mr Geoff Baldwin would undertake an investigation into the allegations and prepare an Investigation Report for Mr Muir. The correspondence then went on to say that if he formed the opinion that he had engaged in misconduct possible action such as dispensing with the applicant's services or counselling, monitoring his conduct and performance, implementing a Performance Improvement Plan, issuing a letter of warning, mentoring and supervision, referral to relevant policies and procedures, or any other action of a similar nature. 20 The applicant was interviewed by Mr Baldwin on 31 July 2008 and a record of interview was provided to the applicant and attached to his affidavit for this matter. 21 The applicant received a letter from the respondent dated 15 September 2008 from Mr Muir stating that the investigations into the allegations had been completed and that he had formed the opinion that the applicant had engaged in misconduct as follows: · That on or about 31 March 2008 prior to escorting detainee DM and detainee WC from Acmena Juvenile Justice Centre (JJC) to attend Armidale Local Court you allowed the detainees access to property bags which contained contraband in the form of tobacco cigarettes. · That on or about 31 March 2008 prior to escorting detainee DM and WC from Acmena Juvenile Justice Centre (JJC) to attend Armidale Local Court you failed to properly supervise the detainees when the detainees took the contraband from the property bags and concealed it on themselves. · That on or about 31 March 2008 while escorting detainee DM to the holding cells at Armidale Police Station after the detainee's court appearance you gave detainee DM a cigarette and allowed him to smoke it. 22 He also stated that with respect to the other allegation it was not sustained due to insufficient evidence and that he had not engaged in misconduct. The applicant was given the opportunity to make a submission within 14 days that would be taken into account prior to a final decision being made. The applicant was also offered an interview with Mr Muir. 23 The applicant provided a response on or about late September 2008. 24 On 16 December 2008 the applicant received a letter from the respondent advising that they had removed his name from the list of persons available for casual work with the respondent. 25 On 19 December 2008 the applicant forwarded an email to the attention of Peter Muir stating that he would appeal the decision to dispense with his services. He went onto state that he was currently seeking legal advice. 26 The applicant stated that it was always his intention to file an appeal and seek legal advice in respect to his claim. Due to the Christmas period he had difficulty obtaining legal advice as law firms in his area were closed for a month or had limited staff and no one could assist him. It was not until early February 2009 that he was able to obtain advice and he then immediately lodged his unfair dismissal claim. He also stated that he had difficulty raising the $60 fee so he rang the IRC Registry around approximately Christmas 2008 to obtain information with respect to the wavering of the fee but was told he would not qualify. He did not know whom he spoke to. 27 From early June 2008 he stated that he has applied for a number of full time jobs but has not been successful. He has done a little casual work however currently he is on Newstart allowance with Centrelink. 28 It was the applicant's evidence that notwithstanding the contents of the letter he received dated 5 June 2008 from the respondent of the threat of termination he did not seek legal advice. He also did not seek assistance as a consequence of the letter of 15 September 2008. Whilst he did respond to the letter but outside the 14 day time limit he did not believe he would be terminated. 29 He stated that at no time did he give DM a lit cigarette or that he lit a cigarette. The cigarette he gave DM was one of his rolled cigarettes. It was given to DM so as to change the focus of DM whom the applicant saw his demeanour change after DM had met with his relatives and girlfriend. 30 The applicant had a concern that he may try to abscond whilst walking back from the Court House to the Police station. 31 Whilst the applicant stated that he had received certain training he had not received training with respect to detainee searchers. It was his evidence that he did not think that there was contraband in the detainee's plastic bag. He thought it only held the detainee's clothing. He had not received any specific training in respect to the transportation of detainees. 32 As at 31 March 2008, the applicant's salary was approximately $1,137 per week, which was calculated by averaging his salary over a 14 week period. These figures were not disputed by the respondent. 33 In final submissions Mr Britt for the applicant stated that the respondent had been placed on notice that the applicant was intending to challenge the decision to terminate him by the email he had sent to the respondent. There was no evidence of prejudice to the respondent and if the applicant was not to be granted an extension of time he would be deprived of the opportunity to seek reinstatement. Employment is scarce in the area and the applicant would have difficulty in finding similar employment given the limited nature of such work. He was also critical of the respondent's conduct in the restrictions expressed in its termination letter restricting the applicant from discussing these matters (annexure E of the applicant's affidavit) was both heavy handed and unnecessary. 34 In this case he stated that the respondent bears the onus of establishing that misconduct took place. The applicant via correspondence from the respondent was advised as to the reasons why he was terminated. The applicant admitted an error in the search of the two detainees. The applicant along with Mr Scott and Mr Hipwell failed to supervise the detainees as the detainees ended up with tobacco. However the tobacco may have come from a number of sources. There was no evidence that the tobacco came from DM's plastic bag as DM was not called as a witness. No evidence was called by the respondent to support the claim that the applicant provided a lit cigarette to DM. The termination was harsh and the applicant sought reinstatement with backpay. Respondent's Case. 35 The respondent's evidence came by way of two persons ( Mr Hipworth and WC) who responded to a summons to give evidence and an affidavit filed by Ms Nicole Christoph who did not appear. Ms Christoph is employed in the Department of Juvenile Justice as an Employment Relations Officer and who is currently acting in the position of Coordinator, Employment Relations and Conduct. Ms Christoph's affidavit consisted of annexures some of which were successfully objected to by Mr Britt. 36 A summons to give evidence was also issued to Mr Simon Scott by the respondent but was not called. 37 Mr David Hipworth stated that he was an ex employee of the respondent who took a redundancy offer in June 2009. He stated that he had been interviewed by a Mr Geoff Baldwin. A Record of Interview conducted on 31 March 2009 between Mr Hipworth and Mr Baldwin was marked as exhibit 1. In the Record of Interview Mr Hipworth stated that he was in his ninth year of service and had been in the transport side for 5 years. He stated that on 31 March 2008 he was the senior officer of the day as he was working with two fairly inexperienced casuals. The two detainees in question DM and WC were to be transported to Armidale for a court appearance. The detainee is allowed to change into their civilian clothing for the court appearance. The detainee is searched and changes in a room prior to getting in the truck. The search is not as thorough as if they were returning from outside of the detention centre as they change in front of a Youth Officer. Mr Hipworth on this day allowed the applicant to gain experience by overseeing the searching and changing of the two detainees. The applicant handed DM the plastic bag containing whatever the detainee had at the time he entered the detention centre. Mr Hipworth stated that he was unaware himself as to what was actually in this bag as the contents sheet was separate from the bag. According to procedure Mr Hipworth watched this process from the doorway. Mr Hipworth saw DM take the bag and ferret around inside the bag with his upper torso almost in the bag. Mr Hipwell did not advise the applicant that there may be contraband in the bag. Mr Hipworth said the normal method is to ask the detainee what he wants to wear and just hand the clothing from the bag to the detainee. What the applicant had done was wrong but Mr Hipworth said that he did not wish to correct the applicant in front of DM as he did not wish to embarrass the applicant. In his view it was no big deal. On the journey to Armidale Mr Hipworth brought this error to the applicant attention. The applicant replied that he thought that there was only clothing in the bag. The applicant apologised for the error and stated that this was the first time he had carried out this procedure. Mr Hipwell thought that the apology was sufficient. He did state that it was the role of the admission staff to carry out the changing of the detainees in preparation for court not that of the transport officers. Later that day after the three officers had returned the two detainees back to Acmena Mr Scott handed Mr Hipworth an orange coloured drink bottle. Inside the bottle it contained loose tailor made cigarettes and one or two little toilet paper with tobacco in it. Mr Hipworth at first could not understand how the cigarettes got there. Both DM and WC were allowed drink bottles on the trip to Armidale because of the length of the trip and the heat. Mr Hipworth was aware that DM's uncle had been in a next door cell in Armidale but did not believe anything was passed between them. Mr Hipworth then remembered the access the DM had had to his plastic bag that morning. He went and checked DM's property sheet and listed were the same brand of cigarettes as found in the orange coloured bottle. It was Mr Hipworth's view that DM had taken the cigarettes out of his plastic bag that morning and secreted them in his clothing then placed them in his water bottle during the day and hoped to get them back into the detention centre on their return. It was Mr Hipworth's belief that the applicant had not received any training with respect to transporting of detainees. Mr Hipworth did not believe that the applicant had intentionally allowed DM to take the cigarettes from the bag. The error was just one of inexperience. Mr Hipworth also stated in his interview with Mr Baldwin that difficulties arise in some of the trips when you have to walk with the detainees across open ground to gain access to a particular Court House. Family members and friends are aware of this and can seek to make contact with the detainee. The transporting of detainees from the Police cells at Armidale to the Armidale Court House requires officers to walk detainees across open ground. The opportunity to abscond exists. He believed Armidale is an example of the worst case. Mr Hipworth advised that he had not been disciplined with respect to what occurred on 31 March 2008. He did not see the applicant pass any cigarette to DM on that day. 38 WC appeared via video link from Armidale. He had also been interviewed by Mr Baldwin on 31 July 2008 and had told the truth in responding to the questions asked by Mr Baldwin. His Record of Interview was made exhibit 2, although he stated that he had not seen a typed copy of the interview. He stated that DM had given him a cigarette that DM had taken from his bag when he was getting changed for his Court appearance on the morning of 31 March 2008. He gave him the cigarette when they were in the Police station. WC wanted to see if he could get the cigarette back into the detention centre. WC said that he was not present when DM was changing. 39 Included in Ms Christoph's affidavit was a copy of the CCTV recording at the back of the Armidale Police station. A screening of the recording was shown in Court. One CCTV camera showed the applicant with DM and Mr Scott walking across what seems to be a car park. The applicant is walking very close to DM with Mr Scott in position either along side or in front of the other two. The second camera shows the back roller door coming up Mr Scott arriving at the back entrance and then turning looking back, going inside and then the applicant and DM arriving and walking inside. Consideration. 40 It is appropriate in this matter to first determine the out of time issue. The applicant was terminated by correspondence dated 9 December 2008, which the applicant said he received on 16 December 2008. As the correspondence states that his services are to be dispensed with immediately I will accept that his date of termination was the date the applicant received the correspondence. The application for unfair dismissal was filed on 13 February 2009. The period between 25 December and 2 January is excluded from the calculation of time in accordance with Rule 136 of the Commission Rules. The application was filed some 30 days out of time. 41 Whilst it is a requirement for unfair dismissal applications to be filed no later than 21 days from the date of dismissal, the Act under section 85 (3) states : The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to; (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and ( c) the conduct of the employer relating to the dismissal. 42 In an out of time application, the onus is on the applicant to satisfy the Commission that there is a sufficient reason or reasons for an application to be accepted out of time. In deciding whether to exercise its discretion to allow an out of time application, the Commission must be satisfied that a "sufficient reason" has been made out. Consistent with each case being decided on its own facts and circumstances, sufficient reason is not defined in the Act, nor is it appropriate to do so. I refer to Griffith Ex-Services Club Limited v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186, where a Full Commission observed at 190: It is not appropriate to attempt to formulate any definition as to what constitutes a "sufficient reason". See also Martin v Nominal Defendant (1957) 74 WN (NSW) 121. 43 The Commission, however, is guided as to the matters to be taken into account, by reference to sub clauses (a), (b) and (c). It is appropriate for an applicant to address each of the criteria in sub clauses (a), (b) and (c). It may be, of course, that only one of these matters, two of them or all three, might be found to constitute a sufficient reason, or reasons, for the Commission to be satisfied its discretion should be favourably exercised. An authoritative judgement on the general principles in respect to the setting of time limits and the Commission's discretion to waive time limits is found in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 where McHugh J said at p551: The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "where there is delay the whole quality of justice deteriorates"… and at p552: The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost (26). Second, it is oppressive, even "cruel", to a defendant to allow an action to be bought long after the circumstances, which gave rise to it, have passed (27). Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them (28). Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period (29), as the New South Wales Law Reform Commission has pointed out (30)… and at p553 …In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s. 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". (35) But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires the extension. 44 The applicant stated that on 16 December 2008 he received the correspondence terminating his services. On 19 December 2008 he sent an email notifying his employer that he would be appealing his termination. Therefore the respondent was on clear notice by the applicant as to his intentions. The applicant advised that he had a great deal of difficulty obtaining good legal advise as solicitors offices in the general area (far north New South Wales) were either closed for the summer break or were working with a skeleton staff and those persons on duty could not help him. He also stated that he had difficulty raising the $62 application fee as he was supporting his daughter and two grandchildren on his social services benefit of $500 per fortnight since May 2008. He stated that he rang the Industrial Registry and explained his financial problem seeking for the fee to be wavered but was advised that this would be unlikely. Whilst the application was some thirty days late I do not believe that it could be regarded as excessive taking into consideration the time of the year and the degree of difficulty of obtaining legal advice plus his financial difficulties. 45 Since his termination the applicant has not worked in regular employment and the opportunity to obtain similar employment as to what he had must be considered as remote therefore the applicant's hardship should his application not be accepted is self evident. On the other hand, there can be no hardship on the employer by accepting the application out of time as it was listed for hearing concurrently with the applicant's unfair dismissal application. The respondent would not have suffered any significant additional costs by having to meet and defend the unfair dismissal leg of this case. Also the respondent had been placed on notice at an early stage that the dismissal would be challenged. 46 I have noted the comments of Mr Britt with respect to correspondence dated 15 September and 9 December 2008, that the respondent sent to the applicant with respect to the statement: You must not discuss this matter with any person other than your legal representative or a union official representing your interests in this matter. I am in agreement with Mr Britt with respect to the termination letter of 9 December 2008. Once the termination took effect the respondent had no control whatsoever over the applicant as to whom he spoke to. As Mr Muir did not give evidence, the Commission does not know why such a sentence was placed in the correspondence. Notwithstanding this issue I do not believe that the respondent contributed to the applicant lodging his application out of time. 47 In summary I am persuaded that the respondent had been placed on notice that the termination was going to be appealed, the degree of hardship placed on the applicant, the time of the year that the applicant sought advice and his financial difficulties contribute to my finding that the applicant has established sufficient reason for the Commission to be satisfied that its discretion should be exercised such as to accept the application out of time pursuant to section 85(3) of the Act. 48 The applicant was terminated for misconduct and therefore the onus rests with the respondent to prove the misconduct. 49 The three reasons as expressed by Mr Muir's letter of termination are as follows: · That on or about 31 March 2008 prior to escorting detainee DM and detainee WC from Acmena Juvenile Justice Centre (JJC) to attend Armidale Local Court you allowed the detainees access to property bags which contained contraband in the form of tobacco cigarettes. · That on or about 31 March 2008 prior to escorting detainee DM and WC from Acmena Juvenile Justice Centre (JJC) to attend Armidale Local Court you failed to properly supervise the detainees when the detainees took the contraband from the property bags and concealed it on themselves. · That on or about 31 March 2008 while escorting detainee DM to the holding cells at Armidale Police Station after the detainee's court appearance you gave detainee DM a cigarette and allowed him to smoke it. 50 It is clear from the evidence of the applicant and Mr Hipworth that on the morning of 31 March 2008 that the applicant provided individually the two detainees DM and WC with their plastic property bags. It is also acknowledged that the applicant allowed both detainees physical access to their own property bag. In doing so it is my finding based on the evidence of WC as to what DM told him what he had done, that DM used this opportunity to take and hide on his person a quantity of cigarettes that had been in his property bag at the time. I accept the evidence of Mr Hipworth of how DM placed his head and upper torso into the bag as a means of retrieving the cigarettes from his property bag. I also find that at a latter time he hid the cigarettes in his orange coloured water bottle in an attempt to bring said cigarettes into the detention centre. The respondent has to my satisfaction proved their first claim to be correct to the extent that the applicant allowed access by the two detainees of their property bags. It is also my finding that the applicant believed that said property bag contained only the detainees clothing. I accept his evidence that he did not know that all the detainee's personal possessions other than clothing may also be in the bag. I note the evidence of Mr Hipworth that transport officers do not go through the individual property sheet as it is too time consuming and that he would not expect anything to be there (in the bag) that is illicit or of a dangerous nature. He also did not tell the applicant that the property bags may contain contraband. 51 It is also my finding that the applicant did not properly supervise the two detainees at the time when handing their property bags to them. I arrive at this finding from my previous finding that DM used this opportunity to take and hide cigarettes on his person. There was no evidence that WC took any contraband from his property bag. 52 Having found the first two reasons for termination proven I should also make comment on the position of the applicant at the time. It was the applicant's evidence that this was the first occasion that he had been required to work in the transporting of detainees and the first time he had been required to prepare the detainees for appearance in Court. No evidence came before this Commission to show that the applicant had been given any training in the searching of trainees prior to being transported. It would seem that this duty in fact is not the responsibility of the transport officers but of the administration officers but had become the duty of the transport officers at Acmena by default. The evidence of Mr Hipworth supported the applicant's evidence that this was his first occasion on transport duty. It was also his evidence that he did not expect any illicit goods in the property bag. Whilst Mr Hipworth was the senior officer on the 31 March 2008 and witnessed the applicant supervising the two detainees changing their clothes he did not intervene at the time. I accept his evidence that he did not intervene because he did not wish to embarrass the applicant in front of the two detainees and most probably because of his then held view at the time that the property bag did not contain any illicit items. In his final submissions Mr Murphy described the applicant's actions as a lack of judgement and on its own, conceded probably not sufficient to warrant termination of services. It is my finding that the applicant should have received appropriate training with respect to preparing detainees for transport and a court appearance. I do not believe his action on 31 March 2009 in preparing the two detainees for transport and court appearance warranted termination. 53 The third reason for termination was the claim that the applicant gave DM a cigarette which he allowed DM to smoke it. It was the applicant's evidence that when he was walking DM back to the Police cells he noticed a change in demeanour of DM. It was the applicant's fear that DM was going to try to abscond prior to reaching the back of the Police station. To distract DM the applicant provided him with a half done cigarette from his pocket. Transcript from the applicant's interview with Mr Baldwin stated: A. So you actually have an open air stroll so to speak. Now on the way back I was noticing D's head all over the place looking for every little gap, looking-he was more than normally fidgety, and my honest belief he was looking for an opportunity to abscond. Now what I did do, cause I thought there's only one –with handcuffs and the bloody bars that are all around that compound, I did have a fear if he did try this he was going to get hurt, one of us was going to get hurt. And so what I did actually, I did con him. I don't like the word con, but I actually did trick him. Q. Yeah A. I had a half done cigarette in my pocket and I actually lit it-pulled it out and went through the motions of lighting it. and Q …kind of distract him or something did you? A. That is actually my whole intention was to change his focus from looking around at all the other bars, and I knew I only had another thirty foot to walk with him to pull this around, and I'd be inside the gates and ok, no trouble. Q Yeah A. But what I did –I did not give him a lighted cigarette. Q. Ok A. I went through the motions of it, but being a rollie-I only smoke rollies, I never smoke tailor mades; I have for over 15 years. Q. Yep A. A half dead relit cigarette has all the daggy bits, so you get the smoke coming up, you get the impression that I'm handing him something. But I held the end and squeezed the tip out…. Q. Ok A. ..before I gave it to him. I let him have it for about ten/fifteen paces and then I took it back off him. Q. Ok A. I at no stage allowed him to have any possession of lighters, matches, packets of cigarettes or anything like that. You know, I know-yeah ok, I sought of do know that I'm in the shit for doing that, but the intention was to change his focus, not to give him a cigarette, and I never allowed him to return to his cell or anything with that in his possession. Q. Ok A. And my intention was not to be nice, it was to change his focus. Q. Ok. So you did in fact take it back from him. A. I did. Whilst the applicant was subject to strong cross-examination on this transcript he strenuously denied that he gave DM a lighted cigarette. 54 The respondent also provided a CCTV record of the applicant, DM and the other officer Mr Simon Scott approaching the back of the Police station and then from another camera angle proceeding into the Police station once the back roller door had opened. I have had the opportunity to study this CCTV record both in the court- room and privately. As the applicant and DM cross the car park I can see the handcuffed hands of DM in front of him moving. I can not see what he has in his hands or if he has anything. I did not see the applicant light a cigarette and pass it to DM and I did not see DM smoke a cigarette. From the second angle there was a longish white line near DM's face. Ex B in the proceedings was a tally-ho cigarette paper. It was provided by the applicant and described as the cigarette paper he uses to roll his cigarettes with. The length of Ex B is 7 centimetres long. I accept the submission of Mr Britt that what was seen as a white line was not a cigarette but part of the design of the football jumper that DM was wearing. It is my finding that the CCTV is not conclusive to the extent required for this Commission to make a positive finding that the applicant provided DM with a lighted cigarette and allowed him to smoke it. The respondent did not require the accompanying officer on the day Mr Simon Scott to give evidence. As a consequence what this Commission is left with is the denial of the applicant that he provided DM with a lighted cigarette and allowed him to smoke it and the inconclusive evidence of the CCTV. Therefore it is my finding that whilst the applicant gave DM a cigarette for a short period of time and then retrieved it from the detainee he did not give DM a lighted cigarette and allow him to smoke it. 55 I have found that the applicant allowed the two detainees access to their property bags and that he failed to supervise the detainees when DM took contraband from his bag. This was the first time that the applicant had carried out this procedure. He advised that he had never received any training in this area. The senior officer on that day, Mr Hipworth did not intervene at any time to correct the applicant in his error on the day but brought to his attention whilst on route to Armidale Court. Mr Hipworth at the time accepted the apology of the applicant for his error but did not at the time consider it a big deal. If the respondent believed that the applicant had failed to carry out correctly a particular procedure and therefore as a result was subject to serious disciplinary procedures which resulted in termination, then what action was taken with Mr Hipworth? Mr Hipworth advised that whilst he was interviewed by Mr Baldwin, no subsequent disciplinary action was taken against him for his apparent lack of action when he oversaw the two detainees changing their clothes. 56 The applicant acknowledged that he had committed a wrong when he temporarily gave DM a cigarette. The reason for giving DM the cigarette whilst somewhat different and perhaps in his mind pragmatic and successful, can not in my view be accepted as appropriate. 57 The respondent's case was not assisted by their lack of evidence. As stated earlier, the onus rested on the respondent to prove the misconduct that resulted in a casual employee being terminated. No current employee of the respondent came to court to give evidence. It is my finding that the respondent failed to prove the misconduct. Neither Mr Scott, Mr Baldwin or Mr Muir were called to give evidence. No application was made by the respondent that any or all of those named persons were unavailable when the arbitration dates were set. The detainee DM who was in the centre of what occurred on the 31 March 2008 was also not called or summoned. 58 It would seem Mr Muir made the decision to terminate the applicant based on an investigation and subsequent report carried out by Mr Baldwin. No reason was given as to why Mr Baldwin was not called so as he could attest to the contents of his report and have such evidence tested in cross-examination. Parts of his report were allowed into evidence through the evidence of the applicant, Mr Hipworth and WC. The remainder including the interview and report with respect to Mr Scott was objected to by Mr Britt and such objection was upheld by the Commission. 59 In summary because of my findings with respect to the reasons given for the termination of the applicant, I find that the termination of the applicant was harsh, unjust and unreasonable. 60 The applicant has sought reinstatement. No evidence came before this Commission by the respondent to argue that such reinstatement would be impractical. I therefore will reinstate the applicant. 61 The applicant sought lost wages for the period from the date of dismissal until the time of reinstatement. Mr Britt submitted that if the Commission were of a mind to penalise the applicant for any conduct then it would be appropriate to reduce the lost wages by a relatively small amount. Mr Murphy submitted that the 30 day period that the applicant filed late should not be taken into consideration. 62 I note the comments of the Full Bench of this Commission in Sydney Ferries Corporation v The Seamen's Union of Australia, NSW Branch on behalf of Levy[2009]NSWIRCComm126 at 91 …….It is a common practice in unfair dismissal cases where an order for reinstatement is made, for orders of back pay (or, more correctly described, lost remuneration), to be tailored according to any identified culpability of the applicant as to the circumstances surrounding his/her dismissal. Thus, in cases where misconduct may be found by the Commission to be proven, but not necessarily justifying dismissal (as is the case here), or in circumstances where a dismissal is found to be too 'harsh' (again, as is the case here), a lesser amount, or no amount at all, may be considered as a 'penalty' for the applicant's conduct. There is nothing inherently wrong in this approach: see Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296. In the present case, we do not consider it appropriate or just for Mr Levy to receive back pay given his contribution to the circumstances that led to his dismissal. The applicant recognised that it was a wrong action in supplying albeit temporarily, DM with an unlit cigarette when proceeding towards the back of the Armidale Police station. I have taken this action into account when considering the lost remuneration as well as the 30 days that the application was filed late. ORDER 1. The Commission Orders, pursuant to section89 (1) of the Act, that the Juvenile Justice Department of NSW reinstate Neil Gordon to his former position on terms not less favourable to Mr Gordon than those that would have been applicable if the applicant had not been dismissed. Mr Gordon is to be reinstated as soon as practicable within twenty- one days of the date of this decision. 2. The Commission Orders, pursuant to section 89(3) of the Act, that the Juvenile Justice Department of NSW pay to Mr Gordon an amount of $24,740.00 in respect to the intervening period between dismissal and reinstatement. This amount is to be paid to Mr Gordon as soon as practicable, and within twenty one days of the date of decision. 3. The Commission Orders, pursuant to section 89(4) of the Act, that the period of employment of the applicant with the Juvenile Justice Department of NSW shall be taken not to have been broken by the dismissal. The intervening period between dismissal and reinstatement of the applicant shall be counted for all purposes as a period of employment. D. RITCHIE 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.