Industrial Relations Commission of New South Wales CITATION: Simmons and Rockdale City Council [2006] NSWIRComm 1010 PARTIES: APPLICANT: Michael Simmons RESPONDENT: Rockdale City Council FILE NUMBER(S): 1074 of 2005 CORAM: Bishop C Termination of employment - summary dismissal council officer - failure to disclose pecuniary/discretionary interests on annual basis - unblemished record of 13 years service - senior & supervisory position - investigation by Council - whether misconduct - resignation initially proposed - summary dismissal - procedural issues raised - reinstatement sought CATCHWORDS: Held, respondents evidence preferred - serious misconduct occurred - failure to complete annual returns accurately - deliberate - no possibility to re-instate - overall procedures fair but concerns about certain aspects - termination not harsh or unjust but unreasonable on procedural concerns - monetary compensation appropriate - orders made LEGISLATION CITED: Industrial Relations Act 1996 Local Government Act Briginshaw v Briginshaw (1938) 60 CLR 336 D&R Commercial Pty Ltd v Flood (2002) 113 IR 344 Antonakopoulos v State Bank (1999) 91 IR 385 Bankstown City Council v Paris (unreported) IRC262 of 1999 Bigg & Anor v New South Wales Police Service (1998) 80 IR 434 Burke v McGirr (1998) 87 IR 54 Busways v Johnson (1994) 55 IR 255 Byrne & Anor v Australian Airlines (1995) 61 IR 32 Franklins Ltd v Webb (1996) 72 IR 257 Hill v Department of Juvenile Justice [3000] NSWIRComm 128 Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 Outboard World v Muir (Cahill VP, Peterson J and Tabbaa C) (1993) 51 IR 167 at 182 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Rapp v Wauchope RSL Club (1998) 81 IR 116 Sams v Contact Point International Pty Ltd (2001) NSWIRComm 18 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 CASES CITED: Parker v Capitol Painters & Decorators Pty Ltd (1996) 68 IR 100 Jones v Dunkell (1959) 101 CLR 298 Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273 Shop Distributive & Allied Employees' Association NSW Branch v Jewel Food Stores (1987) 22 IR 1 Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282 New South Wales Fire Brigade Employees' Union (on behalf of Natoli) v New South Wales Fire Brigades NSWIRComm 440 Robert Lawrence v Attorney Generals Department [2004] NSWIRComm North v Television Corporation Ltd Concut Pty Ltd v Worrell and Anor (2000) 103 IR 160 Day v Lumley Life Limited (1999) 90 IR 70 Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 Hunt v Hornsby Shire Council [2001] NSWIRComm 242 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Transport Workers Union of Australia, New South Wales Branch, on behalf of Joseph Vallis and TNT Australia Pty Ltd t/as TNT Express [2002] NSWIRComm 46 Wells v Commissioner of Police (2000) 100 IR 106 Juleff v Linfox (unreported) Bishop C IRC4293/05 17 June 2005 Loty and Holloway v Australian Workers' Union (1977) 71 AR 95 HEARING DATES: 13/10/2005; 14/10/2005 DATE OF JUDGMENT: 02/01/2006 EXTEMPORE JUDGMENT DATE : 02/01/2006 Mr. P Newell of Counsel Instructed by: Argyles Solicitors LEGAL REPRESENTATIVES: Mr. J McConnell Local Government Association of New South Wales DECISION: 1 This is an application by Michael Simmons against Rockdale City Council "the (Council") for a remedy pursuant to s.84 of the Industrial Relations Act (NSW) ("the Act"). Mr Simmons was dismissed for serious and wilful misconduct by Council on the 11 February 2005. At the time of his dismissal he held the position Assessment Supervisor (Building). He sought reinstatement to his former position. 2 The matter was listed for conciliation and directions before me on 24 March 2005 at which time conciliation took place. 3 As no settlement could be reached, and in the Commission's view the conciliation process had been exhausted, the matter was set down for hearing on 13 and 14 October 2005. Directions were issued as to the filing and exchange of witness statements. 4 At the hearing Mr Newell of Counsel with Mr Smits, Solicitor, appeared on behalf of the applicant who also gave evidence (Exhibits 1, 2 and 3). 5 Mr McConnell from the Local Government and Shires Association appeared on behalf of the respondent and called the following Council employees as witnesses: Gregory Raft - Manager, Development and Building(Exhibit 5) John Logue - Director, Governance (Exhibit 4) Christopher Watson- General Manager (Exhibit 6) Background and Chronology - Based on the evidence filed. 6 Rockdale City Council is a local council located in South Eastern Sydney employing approximately 334 staff with an annual budget of $50 million. There are 15 elected councillors. 7 Mr Simmons is 34 years of age and holds various qualifications relevant to the position he held at Council. He commenced employment with Council as a Health and Building Surveyor in July 1992. 8 Mr Simmons' role as an Assessment Supervisor was a senior supervisory role within the Council in the Planning and Development Department. He was also responsible for the processing of development applications through his action. His manager was Mr Raft. 9 There was no dispute that Mr Simmons had an unblemished record during his employment with the Council. He had successfully completed annual performance and development reviews and had been promoted through various positions until he attained the position held at termination. There was also no dispute that, until the issues raised that resulted in his termination, he was essentially considered a competent, hardworking and professional employee. 10 In early 2001 The Independent Commission Against Corruption (ICAC) investigated alleged misconduct at Council relating to Councillors allegedly soliciting and accepting bribes in order to treat various development applications favourably. Partly as a consequence of that investigation, Council introduced a regime requiring senior employees, including the applicant, to complete a Disclosure by Councillors and Designated Persons return ("DCDP" Return) on an annual basis per s.449 of the Local Government Act. Mr Logue has had responsibility since 2002 for ensuring the DCDP's were completed in accordance with the requirements of the Local Government Act. 11 Mr Simmons completed his first DCDP return for the year ending 30 June 2002 on 6 August 2002. His second return for the year ended 30 June 2003 was completed on 30 September 2003. His third return for the year ended 2004 was completed on 30 September 2004. 12 At various times during the periods covered by these returns Mr Simmons had been involved in a number of corporations as either a shareholder and/or Director or Company Secretary. None of that information had been disclosed in any of the three annual returns completed. 13 At the beginning of 2003 Mr Simmons approached Mr Casey, the then General Manager, seeking approval to undertake development activities with Council Boundaries. The verbal request was subsequently put in writing (18 February and 1 April). 14 Mr Simmons received no reply to his letters and became aware that Mr Casey was retiring. He raised the issue of his request subsequently with Mr Watson (at the time acting General Manager) who knew nothing of the request and sought a further copy of the letter in question. 15 Mr Watson rejected the request made by Mr Simmons by email dated 13 June 2003 advising that the works proposed were not acceptable per s.353 of the Local Government Act and prohibiting such work. Mr Watson further requested that Mr Simmons advise him of any involvement in developments concerning both the family home or that of friends within the Council boundaries. He was also not to be involved in the processing of applications made by family or friends. The email also sought confirmation of its receipt and understanding. 16 Mr Watson sent a further email on 23 June 2003 to Mr Simmons seeking confirmation that he had received the earlier email and understood its contents. Mr Simmons did not reply to either email and it was not raised further with him by Mr Watson. Following receipt of the emails Mr Simmons commenced action to divest himself of all corporate offices he held. 17 Following questioning of Mr Simmons by Mr Mezgallis, Director of Planning and Development concerning a development in Sans Souci by a former associate, Mr Simmons lodged a subsequent supplementary DCDP return on 29 November 2004. This return disclosed interests in two corporations and other discretionary disclosures, including the details of the disposition in July 2003, of shareholdings and positions in another corporation owning a property within the Council boundaries. 18 As a result of that disclosure a meeting was held with Mr Simmons to discuss his original DCDP return of June 2004 and the disclosures he had subsequently made in November. Present at the meeting was Mr Watson, Mr Tyrpenou (who took the notes) and Mr Mezgallis. 19 On 8 December prior to the meeting, Mr Watson caused to be conducted an ASIC search on Mr Simmons and the two companies he listed in the supplementary DCDP of 29 November 2004. 20 At the conclusion of the meeting on 9 December Mr Simmons was advised by Mr Watson that "the situation would be looked at more closely". 21 After the meeting Mr Simmons sought the advice and representation of Mr Ian Robertson, Secretary of the Development and Environmental Professionals' Association ("DEPA") 22 Mr Watson subsequently investigated Mr Simmons' DCDP declarations for 2001/2 and 2002/3, together with the ASIC information. 23 Mr Watson sent a memo to Mr Simmons on 13 December advising him of a number of concerns in relation to his declaration and that he was proposing to terminate his employment. The grounds outlined were "your failure to comply with my lawful direction, failure to comply with the Council's Code of Conduct and statutory requirements for pecuniary interest declaration under the Local Government Act". He was further advised that they were "serious matters involving the possibility of corrupt conduct and improper decision making" in relation to his functions and responsibilities and that he had "seriously compromised" his position and performance with Council and Council itself. 24 The memo indicated that he had until 15 December to make a submission as to why that action should not be taken. 25 Mr Robertson from DEPA made verbal and written representations to Mr Watson seeking an extension of time for Mr Simmons to make his submission. This was granted with a revised date given of 22 December 2004. Mr Robertson was provided with and showed Mr Simmons a copy of the ASIC report. 26 At the Council meeting of 15 December 2004 a development application on behalf of Mr Simmons' family home (owned by his father) came before Council for consideration. Mr Smits, Solicitor, represented Mr Simmons who at the time held his father's Power of Attorney due to his illness. During the course of the meeting Mr Simmons answered two technical questions related to height restrictions. 27 On 22 December 2004 Mr Simmons sent a detailed letter to Mr Watson in relation to his Pecuniary Interests Declaration for the period 30 June 2004 and enclosing a further DCDP for that period. 28 On 29 December, by email, Mr Watson sought further information from Mr Simmons before making a determination on the issues. He also requested a supplementary return to be completed by Mr Simmons for the period 1 June 2004 to 31 December 2004. The information was to be proceeded by 13 January 2005. Mr Simmons sought an extension of time to 31 January 2005 due to both his and Mr Robertson's annual leave. 29 Mr Watson responded to that request by email on 31 January 2005 clarifying what information was sought, and seeking confirmation that the amended declaration of 22 December was a final one for the 2003/4 period. The email also confirmed that a meeting had been arranged with Mr Simmons and Mr Robertson for 3 February to discuss the issues concerned. 30 Mr Simmons responded to that email on 2 February confirming the 22 December supplementary return was a final return and superseded all others. He also provided a further DCDP covering the period 1 July 2004 to 31 December 2004. 31 The meeting of the 3 February was attended by Mr Simmons with Mr Robertson and Mr Watson and Mr Tyrpenou from the Council. Mr. Tyrpenou again took notes. 32 During the course of the meeting the ASIC information was gone through in some detail together with the returns lodged by Mr Simmons since 2002. In addition the events of the 15 December Council meeting were also discussed. 33 Towards the end of the meeting Mr Robertson sought to have private discussions with Mr Simmons and then with Mr Watson and Mr Tyrpenou. 34 As a result of these private discussions a proposal was put to Mr Simmons by Mr Robertson to the effect that Council would allow him to resign with Mr Simmons coming to work the next day and then proceeding on leave until April. Whilst on leave he would have the use of a Council vehicle and phone. A written resignation was to be produced to Council prior to his leaving work. Mr Robertson was to get back to Mr Watson with Mr Simmons response. 35 Mr Simmons subsequently approached Mr Watson on 4 February seeking an extension of time to 11 February in which to consider his options in relation to the matter and seek further legal advice. However, Mr Watson was only prepared to grant an extension of time until close of business on 9 February, subject to the resignation being received by then. 36 Mr Watson was also subsequently advised by Mr Robertson that he was no longer acting on Mr Simmons' behalf. 37 On 9 February Mr Simmons instructed Argyles Solicitors, to send a letter to Council requesting various information arising from the meeting of 3 February and seeking a further meeting with Mr Watson to "traverse all issues and hopefully narrow and eliminate any area of dispute". The letter was sent by facsimile to Mr Watson on 9 February. 38 Mr Watson advised Mr Simmons by letter dated 11 February that the offer of resignation was withdrawn and that he had decided to terminate his employment immediately due to serious misconduct. THE EVIDENCE 39 Mr Simmons maintained that in 2000 another employee of Council Michael Azzi, had been involved in a company developing a property with Council boundaries. This had been approved by another Assessment Officer. This activity had been investigated by Ms Cuthbert of Council and Mr Casey did not raise any objection. 40 Mr Simmons was later told by Mr. Azzi that he had a letter from the General Manager allowing him to develop, he knew all about it and everything was declared. 41 Mr Simmons was away when the ICAC investigation commenced but was aware it was still ongoing when he returned but as far as he was aware the staff were cleared. He was aware it was the subject of some notoriety in the local newspapers. 42 Mr Simmons had approached Mr Casey in early 2003 about seeking approval to undertake development either on his own or jointly with friends and family with the Council boundaries ranging from single unit dwellings through to blocks of units. At the time he was thinking of leaving Council and wanted to undertake this activity for a period of time to see if it was a viable proposition to conduct this activity on an ongoing basis. 43 Mr Simmons maintained that when he initially spoke to Mr Casey he was essentially told that Mr Casey didn't need to check the Local Government Act as Council wasn't in the business of developing and as long as he didn't personally handle the application he saw no problem with it. 44 When Mr Simmons received the email from Mr Watson of 13 June 2003 he said he did not read past the part which was prohibiting him from undertaking outside work, as he was shocked by the response. He did not read the rest of the email which requested him to report any circumstances relating to the family home or developments by friends. He did not read the part which required him to acknowledge his receipt and understanding of the email and did not reply to either of Mr Watson's emails. 45 He took the email seriously however and took immediate steps to divest himself of various interests in companies he was involved in. This took a couple of months and cost him several thousand dollars. There was great cost in complying with this. He needed to get out quickly and made losses. 46 He conceded that, notwithstanding this process, he became a Director of Coral Group on 30 June 2003 a week after receiving the second email from Mr Watson. However he only held that position for 2 months. 47 He also agreed that according to the ASIC search he was appointed a Director of Australian Property Group (Norfolk) Pty Ltd on 4 March 2004 and was still a Director as at 8 December 2004. However he said he was "forced" into that. 48 Over his years of employment there were various occasions when he was offered gifts by residents or developers, however he always refused these. 49 Mr Simmons deposed as to four separate occasions in 2003 and 2004 where another officer, Mr Shankar, came to him to process a development applications for various properties within the City boundaries (42 Brantwood Street, Sans Souci, 24 Campbell Street Ramsgate, 22 Primrose Avenue Sandringham and 8 Belmont Street, Sans Souci). The properties involved a relative, his architect and a former associate respectively. He advised Mr Shankar of this on each occasion telling him there would be "a potential conflict of interest" and that the application should be processed by someone else. 50 All approaches took places after Mr Watson's email and he agreed that he did not inform Mr Watson about those applications. He did not consider he had to as he was not involved in the applications and had taken steps to ensure that by telling Mr Shankar. 51 In relation to the DCDP returns he generally rejected Mr Raft's evidence that anything was said about these at any meetings. He was the only person at those meetings required to complete such a return and therefore the issue was not discussed at such meetings. He was also not provided with any relevant extracts of information from Council's intranet. 52 The first DCDP in 2002 was simply left on his desk with no explanation and no meeting about the returns. It was subsequently returned to him by Mr Logue who told him he had to put "NIL" whenever he had put "N/A" on the forms. He assumed from that that he had filled out the return correctly and therefore filled out all subsequent DCDP's for 2003 and 2004 in the same manner. 53 Mr Simmons deposed that the 2003 return was the first time Council had taken any "significant measures" to attempt to explain the importance of the returns. The 2004 memo accompanying the return was "significantly more comprehensive" than earlier memos and contained a "dummy run" return. 54 Mr Simmons did not deny that he had not received the three respective memos issued by Mr. Logue attached to the DCDP returns for the years 2001/2 , 2002/3 and 2003/4. 55 In extensive cross-examination Mr Simmons was taken in great detail through each return, his responses and the accompanying documentation attached to each of the three memos. 56 His evidence can generally be summarized that in relation to the memos of 2001/2 and 2002/3 he did not read any of the accompanying material at all. In some instances he could not recall whether he read certain extracts. In relation to the 2003/2004 return there were certain sections of the accompanying material that he did read but there were other documents he couldn't recall reading. 57 He acknowledged that in relation to the 2001/2 and 2002/3 returns he did not disclose companies he was involved in and that in hindsight he should have. 58 In relation to the 2002/3 return he took the view that the information was correct as at the date of completion being 30 September 2003. 59 He also agreed that he didn't disclose any detail of companies in which he was involved, in the 2003/4 return. Nor did he mention the family home at Dolls Point. He did disclose property owned at Marrickville and rental income. 60 He said he did seek assistance or speak to other employees in relation to the earlier DCDP returns but did not specify what assistance or information was provided. 61 He approached Mr Logue in late 2003 with concerns about the accessibility of the DCDP's generally that were on the public record. His concern was that that information was available to ratepayers and there had been incidents where residents used the information to mercilessly hound and harass senior staff and Councillors through the media. Because members of the public could view them he made no discretionary returns. This information was conveyed to Mr Watson in the first meeting of 8 December 2004. 62 Mr Logue provided detailed information about the DCDP process and his role at Council. He attached to his affidavit the various DCDP returns and the memos and detailed attachments for the three years in question. The first return to be completed required relevant information as at the date of completion of the return. 63 Mr Logue's memo of 15 July 2002 indicated (in bold) that he was required to lodge a pecuniary interest return for the period ending 30 June 2002 by 30 September 2002. Attached were copies of the following documents which were also listed in the memo. · Chapter 14 of the local Government Act - Honesty and Disclosure of Interest. · Part 5A Local Government (General) Regulation 1999 · One (1) Interest Form · Circular No 97/41 from the Department of Local Government. · Circular No 99/31 from the Department of Local Government. 64 In bold face type was "I draw your specific attention to circular No 99/31 attached". The memo indicated, "It outlines the care and attention needed in completing the return". The memo also indicated that if any assistance was sought with the memo then either Mr Logue or the General Manager should be contacted. 65 Mr Logue deposed that Circular 99/31 at pages 4 and 5 gave suggestions for avoidance of common problems in the completion of returns and provided assistance to officers in the completion of the DCDP. 66 The 2002/3 DCDP return memo of 26 August 2003 was in identical terms (with the exception of the return period specified) to the memo of 15 July 2002 and had the same attachments listed and provided. 67 The 10 September 2004 memo concerning the 2003/4 return was again in identical terms but additional documentation was listed and provided as follows: "Attached are copies of:- · Extracts from the relevant regulation attachments 1 and 2. · A copy of Circular 4/16 from the Department of Local Government. · Copy of Chapter 14 of the local Government Act. · Previous Circulars issued by the Department of Local Government." The memo again drew specific attention (in bold) to Circular 99/31. 68 Mr Logue deposed that those previous Circulars were 97/41, 99/64 and 99/31. In addition, Circular 4/16 concerned "Careful completion of returns", and provided relevant information and suggestions for completion of the returns. 69 It was Mr Logue's role to make sure the DCDP's were filled out correctly. He agreed the earlier forms had an alternative of whether they were made out as at a certain date or for the previous 12 month period, with whichever was not applicable to be struck out. He agreed that a number of officers didn't strike out the inappropriate reference, but the issue they concentrated on was if it was a first return, the return date was there. For subsequent returns Council made sure the period concerned was recited in the forms. 70 He agreed the completion of the DCDP's was a matter that Council took very seriously and that Council should act consistently in relation to all officers completing the returns. 71 In response to questions directed by the Commission, Mr Logue indicated that he essentially accepted the information contained in the DCDP's completed "at face value". It was the responsibility of the person concerned to provide any necessary information. It would only become an issue if information came, post the DCDP, that might generate an inquiry or complaint. It was then the General Manager's role to take action like further searches or investigation. 72 Mr Logue also said that after the first return he expected the subsequent returns to be completed as annual returns for the year ended, as they covered that period. That was also dealt with in the material that was circulated with the returns. 73 It was Mr Raft's evidence that it had been at a departmental meeting that the issue of the DCDP's had been discussed. He was sure Mr Simmons had been present. He also deposed that the Council's Code of Conduct and policies were available on the intranet and copies had been made available to Mr Simmons. 74 Mr Raft did not see any of the DCDP returns for either Mr Simmons or any other employee. They went straight to Mr Logue. 75 Mr Logue could not recall whether he had seen the supplementary DCDP of Mr Simmons of 22 December 2006. He did not see the 2 February 2006 return. He was aware of the issues traversed in the 22 December return as Mr Watson had spoken to him. He was on annual leave for the whole of January and February. 76 Following a conversation with Mr Mezgallis in November 2004 about the property being developed by a former associate of his, Mr. Simmons immediately lodged a supplementary DCDP in relation to that association and made further discretionary disclosures (29 November). 77 That DCDP disclosed in a shareholding in Glama Investments Pty Ltd and a directorship in Australian Property Group (Norfolk) P/L in section E as an Interest. He also disclosed discretionary interests, details concerning three personal relationships of himself and his father, as well as association with an architect from a company which prepared the plans for both the family home and two properties each owned by one of two companies he had listed. 78 In addition he disclosed that he had disposed of shareholdings and positions in Christina's Property Group Pty Ltd on 28 July 2003 which owned 40 Brantwood Street, Sans Souci a property (within Council boundaries). He made a similar disclosure in relation to Australian Property Group P/L, 14 Belmont Avenue Sans Souci, which also owned (within the Council boundaries). In relation to the Australian Property Group (Norfolk) Pty Ltd listed as an "Interest", he also provided detail of properties it owned at the Entrance in his discretionary disclosures. 79 Mr Simmons deposed that he made those disclosures "to ensure that there would be no perception of conflict or attempts to hide anything." 80 It was Mr Watson's evidence however that after he was advised in November 2004 by Mr Mezgallis of Mr Simmons' interest in a property development in Sans Souci he checked the 2003/4 DCDP return and found there was no declared interest. He then asked Mr Simmons to provide him with a supplementary declaration. This was lodged with himself on 29 November. 81 Mr Simmons denied that he was approached by Mr Watson to lodge that supplementary return. 82 Mr. Watson's concern about this property arose because of the relationship between Mr Simmons and the architect, Mr Paul Pappas, and his firm Tecton P/L. Mr Pappas had been a longstanding applicant submitting DA's to Council. Mr Watson was also advised that Mr Pappas was the architect for the development of the family home of Mr Simmons (which is within Council boundaries). 83 Mr Watson then checked Mr Simmons' DCDP returns for 2002/3/4, which are kept in his office. There was no disclosure of any interest with Mr Pappas or with any other companies. Mr Watson then asked Mr Logue to do an ASIC search on Mr Simmons. The search dated 8 December 2004 indicated significant involvement with some eight companies which hadn't been disclosed in those returns. 84 Rather than investigate those companies further in relation to Council records to ascertain if there were any irregularities with applications processed by Council he instead met with Mr Simmons on 9 December. Present also was Mr Tyrpenou, the Manager of Human Resources who took formal notes. Mr Watson observed that Mr Simmons did not take any notes. 85 During the meeting of 9 December Mr Simmons told Mr Watson he was not involved in any way with any of the DA applications involving the properties listed in his supplementary disclosure. He also told Mr Watson he had not been associated with any other companies not disclosed on the 29 November return. He was asked about Glama Investments and positions held and said he had disposed of those interests in 2000. 86 He was also asked why he had made numerous discretionary disclosures on 29 November when in the past he had made none and responded that they were discretionary not compulsory and that he felt the disclosures were "prudent". 87 He was asked about business interests in the City (Rockdale) and said he had none, other that the two DA's reported and known by Mr Casey which he had not disclosed as he had the OK from Mr Casey. 88 Mr Simmons did not agree with Mr Watson's account of the meeting, which he said was Mr Tyrpenou's notes word for word. Mr Watson said he agreed with those notes and adopted them as his version of events. Mr Simmons said he made subsequent notes of the meeting. 89 Mr Simmons maintained that he told Mr Watson he did fully complete the declaration to protect himself and Council and that he completed the Declarations carefully. He said he had spoken to Mr Logue in 2003 about the necessity of Declarations and due to concerns that members of the public could view them did not make any discretionary disclosures. There was reference to this concern in Mr Tyrpenou's notes. 90 Mr Watson also deposed that in response to that concern the notes showed that he told Mr Simmons that that was required by the Act and if he had these concerns he might have to look for employment away from Local Government and this was acknowledged by Mr Simmons. No mention of this was included in Mr Simmons' account of the meeting. 91 Mr Watson also told Mr Simmons that the issue was focused on conflict of interest and it was serious, as he had falsified the Declaration signed as an accurate account. Non disclosure was in a sense fraudulent. Mr Watson was also concerned that the three properties going to Council for approval had not been disclosed on current or previous Declarations. Mr Simmons responded that he didn't expect that to occur again. 92 Mr Simmons' account partly accorded with this, however in his account he made no reference to non-disclosure being fraudulent. 93 Mr Watson told Mr Simmons he would have to have a closer look at the situation and advise him accordingly. 94 Mr Watson then further considered the respective Declarations and the ASIC information and sent Mr Simmons the 13 December memo which was some one and half pages in length. The memo indicated that following the meeting and the review undertaken by Mr Watson it appeared the 29 November discretionary disclosures appeared to be incorrect or alternatively were not a comprehensive statement of the position. 95 Mr Watson's email of 13 June 2003 was referred to in detail. It was also noted that Mr Watson had not received any notifications of potential conflicts of interest although he was aware Mr Simmons had had a meeting with the Mayor about the family home. The issue of the recent DA for the family home being undertaken by a private assessor was also referred to and the reasons for that. Disappointment with Mr Simmons was expressed, particularly given his position. Notice was also given that he proposed to terminated him and detailed a number of reasons (as outlined in the Background and Chronology). He was given the opportunity of responding in writing. 96 Mr. Simmons deposed that at the December 15 meeting of Council the DA application lodged through Tecton P/L for the Simmons family home came before Council. Mr Smits, Solicitor, was appearing on behalf of Mr Simmons' father, to speak to the proposal. Mr Paul Pappas, the Architect was also with them. It had not been Mr Simmons' intention to speak. He held a scale model of the proposed development and demonstrated the extension proposed on the model. One of the Councillors asked two basic technical questions about height restrictions. The questions could not be answered by anyone present. 97 Mr Simmons further deposed that before speaking he looked at Mr Watson, Mr Mezgallis and the Mayor and asked if it would create a problem if he responded. Nobody present objected and he answered the questions. He agreed that Mr Smits was in fact appearing on his behalf. 98 Also present at the meeting was Mr Raft, then Manager of Fast Track Development, who left the chambers which is usually an indication of a potential conflict of interest. 99 Mr Simmons said it was common knowledge that he lived at the family home. Only two Councillors would not have been aware of that. He had attended meetings with both the Mayor and the local member Frank Sartor about the DA. He was acting for his father on his Power of Attorney (as he was in hospital) and therefore he had to be there. 100 Nothing was said to him the next day or the days following before he went on annual leave about speaking at the meeting. Nothing was raised with him until the meeting of 3 February 2004. 101 Mr Simmons deposed that on 15 December Mr Watson sent Mr Robertson a letter about his concerns and attaching information from his files (the ASIC Report). The letter indicated he was asking Mr Simmons to "clearly and unambiguously explain" all pecuniary interests and all relationships involving development matters in the City (Rockdale) and that the ASIC information didn't match the supplementary declaration of 29 November. 102 Across the bottom of the letter Mr Watson had written in handwriting: "PS. I know that I agreed to take no action on this as you requested but guess who turned up in the Public Forum to argue with the Councillors why a DA should not be refused. He also did not disclose his pecuniary interest!!" 103 Mr Watson maintained that the reference to "take no action" was to have no meetings with Mr Simmons due to their leave, not, to not take any action about the whole issue. 104 Mr Watson deposed that for a staff member to address the Council meeting in the way Mr Simmons did was in breach of Council's Code of Conduct, specifically 6.1.6 which provides: "You must avoid any action that could lead members of the public to believe that you are seeking preferential treatment". A designated officer was requested to notify in writing to the General Manager the nature of any pecuniary interest he had in any Council matter he was involved in per s459 of the Local Government Act. At the time of the DA for the Simmons family home being reviewed by Council, Mr Simmons notified his expression of his interest and was removed from its processing. When addressing the Council meeting he did not advise Council of this conflict. 105 Mr Watson maintained that Mr Simmons' name was not on the speaker's list for that Council meeting but Mr Smits' name was. The Mayor called Mr Smits to speak. Mr Smits then called Mr Simmons from the back of the chamber and he stood up in the "horseshoe" and held up the model and demonstrated it while Mr Smits spoke. 106 Mr Watson initially said in cross-examination that Mr Simmons "argued" with Councillors. He later used words such as "explaining" and "being part of the discussion with Council." 107 Mr Watson said he didn't say anything about it at the time as he was very taken aback by it, and the fact that Mr. Simmons was even there. However he agreed Mr Simmons did ask if there were any objection to him speaking, although he couldn't recall it, and that no objection was raised. Mr Watson also agreed that Mr Simmons' conduct at the meeting was one of the reasons he was sacked. 108 Mr Simmons' three page letter of 22 December addressed the following issues: · His supplementary Declaration correctly reflected his current business activities as per the ASIC search. · He had correctly stated his non-involvement in any development work as he had divested himself of involvement in companies doing or previously doing work in the Council area. · His previous returns were acknowledged as incorrect but were made based on written confirmation from John Logue that they were in order. · He did not realise the declarations he made were incorrect and he would have continued filling them out the same way if Mr Watson had not drawn the matter to his attention. · In response to the 13 June 2003 email, he had divested himself of all shareholdings and positions held as shown by the ASIC search. · The DA for the family home was explained and Mr Watson reminded that he had acknowledged that it had been arranged to have it processed by an external assessor. · The Mayor and Local Member were aware of the application and that he was acting on his father's behalf with Power of Attorney. · Any other developments of properties by companies he was associated with were dealt with either by the planning section or an external consultant. · As he had ceased his involvement with those companies he saw no need to inform Mr Watson about them. · He now understood his declarations weren't as comprehensive as they should have been, and had a better understanding of the requirements and responsibilities he was under and was willing to subject himself to public scrutiny in the future. · He was providing an amended declaration and would do so further in relation to any previous declaration as required. · He thanked Mr Watson for bringing the incorrect nature of the declarations to his attention, apologised for any perception of wilful disobedience or knowingly submitting a false declaration and re-iterated that this arose from his reliance on receipt of written confirmation of the declarations from Mr Logue. 109 Attached to Mr. Simmons' memo was a further DCDP which listed companies in both the Pecuniary Interests Section (E) and discretionary interests in accordance with the information in the ASIC search. He also detailed the dates of the disposition of his interests by way of shareholdings/positions. That disclosure contained additional information to what was provided in the 29 November Supplementary Return. 110 Mr Simmons did not agree with the record of the meeting of 3 February as noted by Mr Tyrpenou and said his contemporaneous notes were more accurate. Generally his notes were more extensive in the detail of the conversations between the participants. 111 Both accounts (Mr. Simmons' and Mr. Watson's) detailed a range of issues that were discussed in relation to the DCDP returns of Mr Simmons and the disclosures he had not made. Mr Simmons explained how he came to complete the forms as he did and why he did not consider he had to declare certain interests. He indicated that for years he had been filling in the forms as at the return date and had received memos saying it was in order. If it had been pointed out to him that he was incorrect he would have corrected it and filled it in for the return period. 112 The issue was raised that the information supplied as at return dates for the 2002 and 2003 returns was incorrect. It was Mr Robertson's suggestion that they go through the list of companies in the ASIC search one by one. 113 On Mr Simmons' version that was to indicate which declarations should have been made in which year, with Mr Watson not concerned about pre-2002 returns as they were held off-site. He was also not concerned with shelf companies. Mr Robertson asked him to forget about 2002 as well and then there were comments from Mr Watson about all these companies making losses, which was agreed to by Mr Simmons. 114 In Mr Watson's version each company was gone through for Mr Simmons to outline any income he had received and what involvement that company had with work in the City area. Mr Watson's concern being that he didn't know if that was the case or not and there was indication some companies had done work not disclosed. 115 Ten companies were listed and the details summarized. One was a shelf company. A second had been involved in property development and declared. Of the remaining eight it was indicated when they should have been declared and that income was received from two companies and no income from one. 116 Mr Tyrpenou's notes indicated exchanges between Mr Watson and Mr Simmons and Mr Robertson about monies received with Mr Simmons saying it had cost him money as he had taken out loans, some loan repayments had been made and he had received monies. Mr Robertson indicated this was income. 117 In Mr Simmons' version he maintained he did not make a profit and only received re-imbursement, essentially of his outlays. He indicated that the money went straight to the bank. In cross-examination he said he had yet to receive that money. Mr Watson commented that that was still income and should have been declared. 118 The Commission directed questions about what he expected from his involvement with these companies and he indicated that he expected to make a profit. 119 He was asked (in both versions) what the companies did and responded that they bought land and either rented it out or developed it. 120 Mr Simmons also acknowledged he didn't read the information packages associated with the returns. He didn't declare the income but didn't intend to mislead the General Manager (Watson version). 121 Mr Simmons was questioned about his relationship with Paul Pappas and whether either he or his team has ever processed applications from him and he agreed he had. At this Mr Watson threw up his hands and said, "that's it, you and I have to separate". Mr Simmons explained he had never processed any of his applications and there was no conflict and this could be checked. (Simmons version) 122 On both versions the issue of speaking at the Council meeting was raised, as was the relationship with Mr Pappas. Mr Simmons' account was more detailed and he explained the circumstances. 123 It then appears, on both accounts, that Mr Robertson sought to have a private conference with firstly Mr Simmons and then Mr Watson about a resignation by Mr Simmons. It was Mr Watson's evidence that this suggestion came from Mr Robertson. 124 There was no further detail forthcoming in the evidence about Mr Simmons' discussions with Mr Robertson. Mr Simmons said he didn't know the detail of Mr Robertson's discussion with Mr Watson and Mr Watson could have suggested resignation. 125 Mr Simmons detailed in his minutes that he raised issues concerning Mr Azzi's activities which Mr Watson told Mr Tyrpenou "to note". There was no mention of Mr Azzi in Mr Tyrpenou's notes as adopted by Mr Watson. 126 The Background and Chronology sets out the events that followed that meeting up until the termination letter from Mr Watson. 127 Mr Simmons had sought additional time to consider the resignation and seek legal advice as his father was ill in hospital and another close relative was dying. He attended the funeral on 8 February. 128 Mr Simmons maintained that the two supplementary declarations he had made were an accurate declaration of his interests over the past 18 months and he had never said they were inaccurate. He was never shown any material to show they were inaccurate. Mr Simmons also maintained he did not know why he was dismissed. 129 Neither Mr Raft nor Mr Logue were consulted about Mr Simmons' dismissal and both found out about it after the event. Mr Logue had had some discussions with Mr Watson about what was in the 22 December declaration but he was on annual leave for the whole of January and February. 130 There was extensive cross-examination of Mr Watson covering a range of issues from those raised by Mr Simmons in relation to Mr Azzi, what occurred in the two meetings with Mr Simmons, to the reasons Mr Watson terminated Mr Simmons. 131 In relation to Mr Azzi, Mr Simmons had alleged in his evidence that he was also involved in companies that he had not declared in the DCDPs and also involved in companies developing property within the Rockdale Area. ASIC searches for Michael Azzi were included in Exhibit 3. 132 Mr Watson indicated that he and Mr Tyrpenou also met with Mr Azzi in early December (following Mr Simmons' meeting). In contrast with how Mr Simmons conducted himself, Mr Azzi was very forthcoming about his activities (which were outside the City of Rockdale), explained them in great detail and they were declared in his return. Mr Watson accepted that and was satisfied with his responses and did not see any need to do an ASIC search. 133 Mr Watson agreed that he made a judgement about the honesty of both Mr Azzi and Mr Simmons and drew an adverse inference against Mr Simmons. 134 Mr Watson was taken to two ASIC searches contained in Exhibit 3 (pages 83 to 93). The first search of 6 pages being an ASIC "Personnel Name Extract" and the second search of 4 pages being an ASIC "Relational Company Extract". 135 It became rapidly apparent as a result of queries raised by the Commission and Mr Watson that the first six pages contained information that clearly related to at least two different Michael Azzi's, each with a different birth place, birth date and ASIC personal name identifier. 136 In relation to the information which appeared to tally with that of the Michael Azzi employed by Council, Mr Watson agreed that it involved a interest in a company not disclosed in his 2002 and 2003 DCDPs (these DCDPs also appearing Exhibit 3). He indicated this was a matter he took seriously and would take up when he got back to his office. 137 Mr Watson was aware that he had summarily dismissed Mr Simmons after he had been with Council for 13 years and that such dismissal could have a very serious impact on his employment and his career. 138 Mr Simmons had made four declarations to Council all of which had been inaccurate, including the latest one on 2 February. That was on the basis of what Mr Simmons had said, that he had in fact received income from certain of these companies which had not been declared in the 22 December return. 139 He rejected Mr Simmons' account of the meeting and his evidence that he made no such concession that his disclosure was incorrect. Whilst Mr Watson had not himself taken any notes of the meeting he was satisfied that Mr Tyrpenou's notes were an accurate account of the meeting to the best of his recollection. 140 The issues about income and completeness of the return arose from questions from Mr Robertson from DEPA, who Mr Watson said, in effect "took over" his meeting. However he was not 100 per cent sure whether it was Mr Simmons who said he received income (as the companies were gone through) or Mr Robertson who said it. 141 Mr Watson agreed that after ICAC's investigation of Council there was a substantial degree of sensitivity about the question of conflicts of interest. It was a serious issue and he didn't want this to be any further reason for ICAC to interest itself in the Council in the future on any matter. 142 In relation to anything remotely having to do with something conflicting he agreed that would "dig it out root and branch". He pointed out that was his statutory responsibility. He did not have to "root" it out himself but could also refer matters to ICAC. 143 He also agreed he had powers to take disciplinary measures against employees or refer them to the Pecuniary Interests Tribunal. However his first responsibility was to refer the matter to ICAC and what happened after that was a matter for ICAC. 144 He did not agree that his level of concern about ICAC led him to dismiss Mr Simmons without proper procedural fairness. If at the first meeting Mr Simmons had satisfactorily explained matters he wouldn't have taken any disciplinary action other that a formal warning or counselling. 145 He accepted there was an ongoing educative process about pecuniary and non-pecuniary interests with both employees and councillors. 146 Mr Watson agreed that as a result of the negotiations with Mr Robertson on Mr Simmons' behalf he was to be allowed to resign and come in to work the next day and then proceed on leave. Mr Watson said the issue of finding someone who had committed misconduct was the reason he was not prepared to have Mr Simmons stay on the premises. The agreement about when he would officially be off the payroll as distinct from leaving the premises was part of a negotiated agreement. His first priority was that he needed to get him out of the organisation. The second priority was to give him the opportunity to get further employment which he agreed to with the Union in that particular form. 147 He did not undertake any processing of paperwork in relation to the resignation, as there were overnight exchanges between himself and Mr Robertson about a form of words. He was expecting a resignation the next day but none was forthcoming. 148 Mr Simmons approached him about an extension of time which was agreed to but only until the Wednesday 9th. He was also subsequently advised by Mr Robertson that he was no longer acting for Mr Simmons. 149 He was aware that Mr Simmons came in on Monday 7 February but was not aware of what work he did or how long he remained on Council's payroll. It would not have been acceptable for Mr Simmons to process any applications on that day but he agreed that he did not directly or indirectly tell him that or indeed tell anyone else that. 150 Mr Watson agreed that he didn't respond to the subsequent letter from Argyles Solicitors of 9 February, sent on Mr Simmons' behalf, and that he then unilaterally dismissed Mr Simmons. 151 He argued also he did not contact Mr Simmons and tell him that the consequences of his failure to resign could be summary dismissal. This had been raised with Mr Robertson. In those discussions he had indicated that one of two courses of action would happen. One was the issue of the agreement. The other that alternatively Mr Watson would take action. It wasn't a formal ultimatum, neither was it documented - it was a verbal discussion. He was dealing with Mr Simmons' representative. He agreed however, that that wasn't referred to in his affidavit. 152 Mr Watson conceded that Mr Simmons did not have an opportunity to address him on what should happen to him. Mr. Watson did not obtain any legal advice on whether there was a proper basis for termination nor whether the disclosures Mr Simmons made were in breach of s.449 of the Local Government Act. He had formed those views himself. 153 Whilst there was provision for pecuniary interest referrals to the Pecuniary Interest Tribunal that was done through the Department of Local Government and the focus tended to be on councillors. He was not concerned that if he had sent the matter through to the Tribunal it would have shown Mr Simmons to be free of any fault. 154 Mr Watson's concern was not just with the pecuniary interests, there were other issues about the employment relationship that were of concern. The issue of his non-disclosures in December and the December Council meeting issue were linked. 155 In re-examination Mr Watson confirmed the process that had been taken from the issuing of the 13 December letter to Mr Simmons, the issues raised in the letter and the representation of the Union in the process. 156 The reason he was not prepared to meet further with Mr Simmons and revisit all the issues discussed on 3 February as requested by him on 4 February was that as he understood, over the three month period Mr. Simmons had all the information he had asked for and that was all now in his possession. 157 In coming to his decision he was looking at the four pecuniary interest declarations that had been submitted. In particular the last declaration was as a result of a specific request he made to Mr Simmons to provide him with a comprehensive and accurate document. 158 The Commission also directed a number of questions to Mr Watson. In relation to the June 2003 email he did not take any action to check what Mr Simmons had already put in his returns nor did the request in his letter generate any concern as it had only been put as a proposal to undertake development work. 159 Mr Watson also said he expected Councillors and designated staff to make appropriate disclosures even if it involved work outside the Rockdale area. He acknowledged that that was a difficult issue but took the view that they should be overstating the position not trying to minimize it, as there could be scenarios where people are dealing in a number of other council areas. People needed to demonstrate that the conflicts were being handled properly. He took the view that (unlike some other General Managers) that it was not Council's role to interfere with people's livelihoods as long as the declarations and actions of staff were open and transparent. 160 He gave an example of a staff member seeking approval to be involved in rebuilding the family home. They weren't given approval but were encouraged to take that to their manager and then get some authority for Mr Watson to authorize that. 161 Both Mr Raft and Mr Logue said they did not have any problem with working with Mr Simmons again if he should be reinstated to his former position at Council. 162 Whilst Mr Watson agreed he did not have day to day contact with Mr Simmons he personally thought there would be significant problems if Mr Simmons were reinstated. However Council would follow the Commission's directions. SUBMISSIONS 163 Mr Newell for the Applicant submitted that in making the decision to summarily dismiss Mr Simmons, Council acted both without substantive or procedural fairness. 164 The onus was on Council to establish the factual matters that they said gave rise to the serious misconduct. That had to be proved, not just on a probability level but at the Briginshaw v Briginshaw level. That test approaches but does not meet the criminal standard. 165 On the evidence it was submitted that: · Council relied on Mr Simmons' conduct firstly as to his declaration of 22 December and secondly his participation in the Council meeting of 15 December. · Mr Watson had conceded that the 22 December declaration was the only one relied on as Mr Simmons had been given the express opportunity to make that further declaration. That declaration effectively absorbed the earlier declaration. · When looking at the facts of the Council meeting of 15 December Mr Simmons didn't "argue", he demonstrated the model in silence, he first sought approval of the Mayor, Mr Watson and Mr Mezgalles and had no response before answering technical questions that were not persuasive. That he was present arguing was an error, a misunderstanding, a misconception and a mistake. · There was no evidence to support that the declarations were inaccurate even on the balance of probabilities. It was Mr Simmons' evidence on oath that they were accurate and there was no shred of evidence to the contrary. · The only evidence resided in the notes Mr Watson purported to adopt. However Mr Watson only said they "look accurate to me". The evidence crumbled in relation to the company listed as "Idobe". There was no such company. Issues were also raised about what Mr Simmons said and what Mr Robertson said in relation to income. The notes could not be relied on. Neither Mr Tyrpenou or Mr Robertson were called to give evidence and that raised Jones v Dunkel considerations that their evidence would not have assisted Council. · That left the conduct at the meeting of 15 December, which could not be sufficient basis for summary termination. It might warrant a "slap on the wrist", it might not. · The only thing standing between Mr Simmons, with 13 years unblemished, good quality service and work, being in his job was the view formed that his 22 December document was wrong. There was no evidence that it was wrong and no proper evidence that it was inaccurate. · There was no capacity for Council to rely on earlier declarations because Mr Watson said they weren't relied on. 166 Mr Newell relied on Shop Distributive and Allied Employees' Association NSW Branch v Jewel Food Stores (1987) 22 IR 1, in relation to the question of investigation of matters where dishonesty was made out and relied upon. In that matter the Full Bench essentially said that an employer should only summarily dismiss if fully satisfied, after careful investigation, that the accusation has been made out. That case had been followed many times since and Council was not in a dissimilar position. 167 That was also required by Briginshaw v Briginshaw and the trouble was there ought to have been that sort of evidence before Mr Simmons was dismissed but there wasn't. 168 There was also a gross lack of procedural fairness. The decision was made to summarily dismiss Mr Simmons. He was never told he would be summarily dismissed if he didn't resign. The first he knew of that was when he received the letter. He was never heard on the question of penalty at all. 169 It went from the point where he was going on leave understanding that a deal had been done on resignation to Mr Robertson ringing Council to say he was no longer involved. Mr Watson said this didn't trigger his decision. Mr Simmons' Solicitors sought more information and a meeting but Mr Watson ignored that and summarily dismissed him. 170 This was a serious matter which interfered with both the substantive issues as well as the procedural aspects. Humphries v Cootamundra Ex-Services Club was relied on in relation to the failure to accord procedural fairness. In addition the denial of access to the actual documents forming the substance of the allegation was a most serious matter. 171 In circumstances where there is necessary sensitivity to anything which might be thought to involve ICAC, that sensitivity had given rise to an over-rushed, over-hasty, ill-considered and wrong decision to terminate Mr Simmons from his employment. The consequences of the decision on Mr Simmons were catastrophic as it effectively prevents him attaining other employment in this field of skill and experience in the foreseeable future. 172 There was no barrier to reinstatement. Mr Raft, his immediate supervisor said they had a good working relationship. 173 On the issue of practicality of reinstatement, Mr Newell relied on Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 and Hollingsworth v Commissioner of Police (No. 2) (1999) 88 IR 282. There was also no barrier to Mr Simmons being reinstated because he had been dismissed for something where it now emerged there was not a proper degree of evidence to support a dismissal. 174 It was also submitted that Mr Simmons was unfairly and unequally treated compared to another employee of Council, Mr Azzi, who was not checked in the same way but what he said was accepted. 175 The essential issues were that Council relied on the two things only - the 22 December declaration and 15 December Council meeting. It failed to bring sufficient evidence to establish any wrong doing took place in either event. Council had not discharged the onus to prove misconduct had occurred. The only thing that could be said against reinstatement was the product of the unfairness in the first place. In those circumstances Mr Simmons must be reinstated at once. 176 Mr McConnell for the Council submitted that Mr Simmons from 2001/2002 was required to complete pecuniary interests declarations with instructions provided that were very clear. It was Mr. Simmons' evidence that he didn't read the forms, didn't read the supporting material or seek any advice. 177 The question for the Commission was whether these actions of Mr Simmons was the result of inadvertence or a deliberate intention to ensure he could claim ignorance of the requirements. Council supported the latter conclusion. 178 It was submitted that Mr Simmons: · Failed to declare interests he held in a number of companies. · Failed to declare income he should reasonably have expected to receive. His explanation in evidence being that the money he received wasn't income as he saw it. It was only income if there was money left over after outlays taken into account. That was a definition of profit not income. · He raised a number of development applications that he was asked to work on which he said he couldn't because they were a potential conflict of interest. He was aware of these conflicts back in 2003/4 but didn't declare them to the General Manager. This was contrary to the instruction in the June 2003 email. · The memo was very clear, but he didn't come back to the General Manager or report these conflicts. If they had been revealed appropriate enquiries, as proper, could have been made by the General Manager. · He didn't report these things as he sought to hide this information thus failing to discharge his obligations to declare his interests per the Local Government Act. · He sought to minimise any questions concerning his corporate dealings or any potential conflicts by revealing matters only when cornered. If Council had the information then it was conceded. · At no time did he give a full and complete disclosure, raising issues of his honesty and integrity. These were clearly before him if he read Chapter 14 of the Local Government Act. · He raised in evidence that he had been offered gifts, not accepted them and didn't work on DAs referred to him by his own staff. This was not revealed to Council before his dismissal. He didn't accept gifts because it wasn't the right thing to do or in compliance with the statute. He clearly knew right from wrong yet sought to deceive Council. · The Commission should consider the email exchange between the General Manager and Mr Simmons of late December/ January re further disclosure of non-declared interests. · Mr Simmons said he covered all conflicts in the 22 December letter where he declared interests in 14 Belmont, 40 Brentwood and 17 Fontainbleau Streets (all within the Rockdale area) and properties at The Entrance. However in his evidence (Ex.1) he said he had a potential conflict in 42 Brentwood, 24 Campbell and 22 Primrose and 8 Belmont Streets. None of these were disclosed to the General Manager. He was requested as late as December to advise of potential conflicts yet did not do so and they did not come up until after his dismissal. The applicant will only reveal matters when forced to do so. · He raised unequal treatment compared with Mr Azzi yet said Mr Azzi told him "everything is declared". He didn't call Mr Azzi as a witness. Mr Azzi was forthcoming to the General Manager. The comparison is that nothing is declared by Mr. Simmons unless it's found out by Council. · He displayed a cavalier attitude to the completion of forms in regard to his employment. However, he treated his job and obligations to DA applications seriously. He also treated his obligations to his companies seriously and was aware of a requirement for disclosure but he did not treat his obligations to Council seriously or treated Council in a duplicitous manner or set out to deceive. · His letter to Mr Casey of 1 April said, "I wish to disclose a pecuniary interest" and referred to s.353 of the Local Government Act. He clearly knew what the requirements were. He chose not to comply with them in relation to the current General Manager and the email of 13 June because he didn't want Council to know. 179 Mr. McConnell rejected the submission of Mr Newell that the only relevant declaration for the Commission to consider was that of 22 December. The total employment record and total circumstances had to be looked at. There were a series of pecuniary interest declarations where Mr Simmons sought to hide his interest in a number of companies from the decision makers of Council. 180 Mr McConnell also rejected the submission that the first Mr Simmons knew about the summary dismissal was the 13 February letter. The attention of the Commission was drawn to Mr Watson's memo to Mr Simmons of 13 December and the latter part of the letter where Mr Watson expressed his disappointment that, "he had inadequately responded to the requirements for full and frank disclosure of interests and conflicts". The seniority of his position was pointed out, the serious matters it raised and the proposal to terminate on various grounds stated. 181 Mr. Simmons was invited to make a submission and extensions of time were given to allow this due to his and Mr. Robertson's leave. The discussion of those issues took place on 3 February. It was submitted that for it to be seriously suggested that the issues were not already before Mr. Simmons was patently incorrect. 182 It was also submitted that arising from the meeting of 3 February there were two alternative views put forward by the applicant and the notes of Mr. Tyrpenou. It was clear however through cross-examination of Mr. Simmons that the series of companies he was involved in were raised. They weren't in Mr. Simmons version of his notes, but he accepted that they were raised. 183 The only deferral he made as to Mr. Tyrpenou's notes was whether or not there was any discussion on income received. It was submitted that arising from what was put to him in cross-examination and his answers that a position was reached where there was an explanation of what he believed "income" to be, as anything you had left over after you had proceeded with all your outlays. 184 It was submitted that Council had demonstrated both procedurally and substantively the issue of fairness in the dismissal. The issues were discussed in meetings on 9 December and 3 February. The result of the 3 February meeting was that Mr. Simmons, through his representative agreed to resign. That agreement fell through. 185 The issues were squarely put on 3 February following 4 occasions that Mr. Simmons was asked to complete and did in fact completely pecuniary interest declarations for 2003/04. On each occasion it was found they were incorrect. The declarations got better and better and more and more was outlined by Mr. Simmons, but only, in effect, when he had to declare those. 186 Reliance was placed on the discussion of Sams DP in Robert Lawrence v Attorney Generals Department [2004] NSWIRComm 57 at p.21. Four principles are discussed in the Decision, summarised as follows: 1. Was the conduct alleged against the dismissed employee proved? It was submitted that it was. 2. If the conduct was proven, was summary dismissal warranted? In view of the circumstances demonstrated Council submitted that yes it was. 3. Did the conduct constitute a fundamental and wilful repudiation of the contract of employment? It was submitted that the conduct was wilful. That was clear by his actions in continuing to try and hide the proper circumstances of his interests and the actions he took to avoid the General Manager or Council being aware of them. 4. Were mitigating factors taken into account? It was submitted that effectively they were. 187 As to the issue raised that Mr. Simmons wasn't told he would be summarily dismissed if he didn't resign, that was the whole basis of the discussion with Mr. Simmons' representative and Council, after his discussion with Mr. Simmons. The issue of resignation came from Mr. Simmons' representative not Council. It was submitted that it was only when Mr. Simmons decided "to walk away" from that, that communication was supplied. The issues that needed to be put from the memo of 13 December were squarely put. Those things had been fully taken into account. 188 The proposition that Mr. Simmons be reinstated was rejected. The application should be dismissed. 189 In reply, Mr. Newell pointed out that Mr. Simmons did not agree to resign. He simply asked for time to go away and consider his position. 190 Mr. Newell sought leave to tender a further document in relation to the issue of whether Mr. Simmons spoke at the Council meeting of 15 December. The Commission was not prepared to admit such material at that late stage of proceedings. 191 During arguments about whether or not the document should be admitted an issue was raised about Council failing to produce documents in their possession. The Commission considered the issue had been dealt with in cross-examination of Mr. Watson. 192 Mr. Newell concluded by submitting that the matters raised against Mr. Simmons had not been proven on the evidence. That meant there was no way the dismissal was fair. There was therefore no bar to re-instatement. CONSIDERATION 193 I have carefully considered the evidence and submissions of the parties in this matter. That consideration has included a lengthy and detailed analysis and comparison of Mr. Simmons 3 annual DCDPs (2001/2002, 2002/2003 and 2003/2004), the 3 supplementary DCDPs (29/11/04, 22/12/04 and 2/2/05) and the ASIC search conducted on Mr. Simmons of 8 December 2004. I have also carefully considered the various documents attached to the memos issued by Mr. Logue to Mr. Simmons in relation to the completion of the DCDP's. 194 As Mr. Newell rightly points out the onus is on the respondent Council to establish that misconduct has taken place per Pastrycooks, Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70. The Commission must then be satisfied that that onus has been discharged and that the misconduct occurred. 195 However, even if it is established that misconduct did occur, the Commission must also consider whether termination in the circumstances was too harsh a penalty per Byrne & Frew v Australian Airlines (1995) 61 IR 32. Likewise, whether the termination was either harsh or unjust or unreasonable per S.88 of the Act. Here however, the onus moves back to the applicant per Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273. 196 Mr. Newell maintained that as a result of cross-examination of Mr. Watson, it was clear that he had relied only on the supplementary declaration of 22 December and the conduct of Mr. Simmons at the 15 December Council meeting as grounds for Mr. Simmons' summary dismissal for serious misconduct. 197 Mr. Newell also maintained that procedural unfairness arose when, inter alia. Mr. Simmons was not told by Mr. Watson that such summary dismissal was the alternative to resignation and refused to meet with his Solicitors. 198 In contrast, Mr. McConnell submitted that the decision to dismiss had to be viewed in the context of the previous four declarations, his disregard of instructions and the overall circumstances confronting Mr. Watson concerning Mr. Simmons' declarations and his various disclosures. 199 I have to say I agree with Mr. McConnell. What must not be forgotten is Mr. Simmons' explanatory covering letter attached to the supplementary declaration of 22 December. That was an opportunity for him to make a submission as to why Mr. Watson should not terminate his services on the grounds set out in the memo to him of 13 December. 200 That memo made clear that Mr. Watson was "proposing" to terminate, not merely "considering" termination. It was made quite clear that that action was a result of firstly, Mr. Simmons' undertaking at the 9 December meeting that his supplementary declaration of 29 November was accurate; secondly, his response in the meeting (acknowledged even on his version of the minutes) that he had not been associated with any other companies not disclosed on that return and thirdly, a closer examination by Mr. Watson of the earlier 2001/02, 2002/03 and 2003/04 DCDPs and the ASIC search. 201 As the subsequent declaration of 22 December showed and also that of 2 February, that undertaking and response were just not true. At best Mr. Simmons was mistaken and overlooked matters, at worst, he deliberately lied, mislead the General Manager and sought to again withhold information on interests (both pecuniary and discretionary) that should have been declared as early as his first return in 2001/02. 202 It is not entirely clear to me on the evidence whether the ASIC report Mr. Logue obtained dated 8 December was actually in Mr. Watson's possession at the time of the meeting. Certainly, some of the information contained in it about companies not previously revealed was raised with Mr. Simmons. 203 However, perhaps the mere fact that he was asked whether he had any involvement in any other companies not yet declared indicates that Mr. Watson was well aware of that information and was in fact giving Mr. Simmons the opportunity of "coming clean" as it were and volunteering information not previously forthcoming. 204 Mr. Simmons was asked what his business interests were in the City to which he replied "nothing" (on both versions) apart from two drafts supported by Mr. Casey. Certainly this appears to have been correct as at 9 December 2004 (Although the ASIC search still seems to show him as a shareholder of Platanous and Christina's Property Group). Although the reference to the DA's supported by Mr. Casey (who left in April 2003) would raise issues of previous involvement in business interests in the City. This was his opportunity to fully disclose the involvements as set out in the ASIC search. 205 However, based on the information Mr. Watson had, and given how unforthcoming Mr. Simmons was, it was not surprising that following Mr. Watson's further examination of Mr. Simmons' previous DCDP's and the ASIC search, Mr. Watson had serious concerns which result in his memo of 13 December. 206 Following the 13 December memo and the entering on the scene of Mr. Robertson, the ASIC report was provided to Mr. Simmons, via Mr. Robertson. Mr. Simmons was then in a position to properly respond as requested. 207 That the situation, as a result of 9 December meeting, was now quite serious for Mr. Simmons and clearly realised by him is underlined by the fact that he now sought the assistance of the relevant Union. 208 Mr. McConnell is quite right that any information put forward by Mr. Simmons is done so only after he has been pushed to provide it by Council and then only with what information he considers necessary to respond to the specific request. In each of the 3 declarations of 29 November, 22 December and 2 February more information was revealed each time. Yet, as will be discussed below even the final declaration of 2 February was still, in my very firm view, severely wanting in necessary detail not previously provided namely, income received. 209 In the first return lodged by Mr. Simmons on 6 August 2002, Mr. Simmons was required, as it was a first return, to declare interests as at that date of completing the return. That is quite clear from the wording of the return and the accompanying material attached to Mr. Logue's memo of 15 July 2002. 210 At that time, according to the ASIC search, he was involved in three specific companies and had been so since 1996, 1998 and 1999 respectively, as a Director of the three companies and a shareholder as well in one company. He did not declare those involvements as either pecuniary or discretionary interests. 211 Mr. Simmons relied on the fact that Mr. Logue only raised with him that he was in error in completing the return with "N/A" in each section rather than "NIL". He also received a subsequent written confirmation that his return was in order. 212 This was then the basis, he said, for completing each subsequent return in 2002/03 and 2003/04 including, he said, completing them as at the date of completion rather than for the 12 month period from June to July each year. 213 This was done despite the explicit memos of Mr. Logue for each year (15/07/02, 26/08/03 and 10/09/04) indicating that the return was for the "period ending 30 June 2002 etc" and listing the specific relevant material that was actually attached to the memo to assist in completing the return. It was done despite the memo specifically drawing Mr. Simmons attention (in bold) to Circular No. 99/31 and stating "It outlines the care and attention needed in completing the return". It was done despite the memo stating that "should you require any assistance at all in the completion of the form, do not hesitate to contact myself or the General Manager". 214 Yet what is it that Mr. Simmons did on receiving the memos? In cross-examination he mainly said he did not read the attachments to the memo. In some instances he said he could not recall reading the attachments. He acknowledged that he did not ask the assistance of either Mr. Logue or the relevant General Managers at the time (Mr. Casey and Mr. Watson). 215 He indicated that in late 2003 he raised with Mr. Logue some privacy concerns about the information in the DCDP's given that they were available for public scrutiny. However, there is no suggestion anywhere that as a consequence of that enquiry Mr. Logue told him he didn't have to provide any requisite information or make any declarations of pecuniary or discretionary interests. 216 Having carefully considered all of the documentation attached to Mr. Logue's memo (as provided to Mr. Simmons), true it is that there could conceivably be a "grey area", based on the documentation, for any individual required to complete a DCDP as to whether a matter is either a discretionary disclosure or infact requires a declaration of a pecuniary interest and indeed a "grey area" as to when a matter moves from being discretionary interest to a pecuniary interest. However, if there was any doubt remaining in Mr. Simmons mind after he had read the information (indeed, there may not have been, if he had bothered to read it in the first place) then all he had to do was seek the assistance of Mr. Logue or the General Manager. He did neither. 217 Instead he blamed the fact that he filled out the declarations "inaccurately" on Mr. Logue for not telling him they were not correct. 218 Indeed, in both his affidavit (Exhibit 1) and his letter of 22 December 2004 accompanying the supplementary DCDP he goes so far as to say firstly in relation to the return date relied on: " However, as I have made declarations previously as "at the return date" and have received written acknowledgement from John Logue, the Director Governance on every occasion, stating that my declaration was in order, how was I to know any different?" 219 Well, Mr. Logue was not a mind reader, I'm sure. The form provided to Mr. Simmons in each year had the specific annual period already typed in e.g. "1 July 2002 to 30 June 2003". The date filled in the section "As at the Return Date" was filled in by Mr. Simmons. It clearly indicates on the form that one deletes whichever is not applicable. 220 The return date, rather than the whole annual period, was only applicable for Mr. Simmons' DCDP of 2001/02. However as previously indicated he did not in any event list interests in three companies he had been involved in for some time and was still involved in at the return date. 221 If no information is supplied, I can't see that there was anything for Mr. Logue to correct in that respect. That brings up the next question of how was Mr. Logue to possibly know that Mr. Simmons had not declared interests that he had, unless he was privy somehow to that knowledge or to some third hand information. There is no suggestion or evidence anywhere that he was privy to such knowledge or information and therefore was in a position to know that the declarations were incorrect and inaccurate. 222 As to the failure to supply required information in the 2003/04 DCDP's, again Mr. Simmons blames Mr. Logue as indicated in the 22 December letter where he explains that he didn't supply that information because he again filled out the form as at the return date rather than for period and "I also didn't make discretionary disclosures because John Logue said his return had been examined and been found to be in order". Again how on earth was Mr. Logue to know that Mr. Simmons was not providing information he should have been when all he was putting was "NIL"?. 223 Later in that letter he says that in relation to the reporting requirements under S. 449 of the Local Government Act he was " under the wrong impression" as to how the form could be filled out " a mistaken impression reinforced by John Logue". And again "as stated earlier, I was receiving written confirmation from someone within Council, who I believed and trusted knew more about declarations than myself and that my declaration was in fact in order". 224 Obviously it was all John Logue's fault! What an absolutely pathetic and weak excuse. I don't think I've ever heard a flimsier excuse, for either totally negligent and slack behaviour or downright deceit, in years. 225 I believe Mr. Simmons knew full well what a pecuniary interest was and what a conflict of interest was and when such arose and deliberately chose not to declare them. 226 This knowledge is clearly evidenced by his own letter to Mr. Casey on 1 April 2003 when he said "I wish to declare a pecuniary interest in accordance with Section 454 of the Local Government Act which I might have in relation to dealing with any development applications relating to one or more properties that I intend to acquire either myself or jointly with family and friends in the boundaries of Rockdale City Council with the express purpose of developing it". He went on to indicate the type of development proposed. He then notified of his intention to engage in property development in accordance with S. 353 of the Local Government Act noting that Mr. Casey had commented that it would not conflict with his Council duties as Council is not involved in the business of developing and selling residential units. 227 I must confess I am surprised at this evidence as to what Mr. Casey is alleged to have said and done in his meeting with him (looking at the Local Government Act, then saying he didn't need to look at it as Council was not in the business of developing). Mr. Simmons was making a request under S. 353 which related to seeking approval to undertake other work - essentially taking on a second job. However whilst undertaking a second job may have been alright (keeping in mind that Mr. Simmons was at that stage thinking of leaving Council in 12 months and wanted to see if he could make a go at developing) I can't imagine that Mr. Casey could possibly have meant that it was OK not to disclose any such interest or involvement in a DCDP. 228 Indeed, I'm extremely surprised Mr. Casey would have expressed the view that such involvement was alright. I consider that it wasn't an appropriate involvement - as was the view of Mr. Watson. Council is clearly in the business of approving and oversighting developments. For Mr. Simmons to be involved in such activity within the Council area given his senior role in the planning section was totally inappropriate. 229 Mr. Watson's concern was spelt out in his email of 13 June - " The operative issue is not whether the proposed work is the business of Council as you state but rather whether the average person would see that the proposal is in conflict with your Council duties of assessing and approving Development Applications. It clearly is (emphasis added). 230 Mr. Simmons was also aware of what could constitute a conflict of interest as he had advised Mr. Shankar on no less than four occasions (according to Exhibit 1) that he couldn't be involved in the DA's for certain properties for a variety of reasons mainly to do with his associations with those parties who were submitting the DA's. 231 However nothing of this was ever declared in any DCDP until it was specifically raised with him (as in Mr. Mezgallis' query of late November 2004) or specifically requested by Mr. Watson. 232 At the time of his letter to Mr. Casey in April 2003 he was already involved in a further four companies in addition to those he had not declared in 2001/02. What isn't known from the evidence is the actual date that any of the properties listed in various DCDP's as being owned by the companies he was involved in, were actually acquired. 233 Mr. Simmons made much of the fact that when he received the email of 13 June 2003 from Mr. Watson, he immediately took steps to divest himself of his various interests. That was at some cost for himself not only in any charges involved etc but what income was forgone. As he said he expected to make money out of his involvement in those companies. (This was in a direct answer to questions from the Commission). 234 Mr. Simmons says that he was so "shocked" at Mr. Watson's' response in the 13 June email prohibiting him doing other work that he didn't bother reading the rest of the email. In particular he didn't read the section - " In the case where your family home or the like is concerned or where any friends are developing in the city you must report these circumstances to me immediately so that mechanisms can be put into place to ensure no perceived or real conflict of interest exists" (emphasis added). I find that just too ridiculous and unbelievable for words. 235 Mr. Simmons made no such report to Mr. Watson and as previously indicated his 2002/03 DCDP did not provide any information whatsoever about any of the companies he had been involved in prior to divesting himself of those interests. Nor did he reveal any of the conflicts involving property of friends, associates etc. after this time, that clearly existed as per his evidence (Exhibit 1). 236 Mr. Watson got no response to that email. He sent a second email and got no response. He said that when he saw the 2002/03 DCDP with nothing disclosed he assumed Mr. Simmons had complied with the email as his letter had said only that he was "proposing" to undertake this involvement. Mr. Watson said that had he been aware of any activity then he would have made appropriate enquiries and taken action. It was not unreasonable for Mr. Watson's part to take no further follow up actions on that basis. He was in fact not alerted to anything untoward until Mr. Mezgallis spoke to him in November/ December 2003 about a particular property and Mr. Simmons' interest in it. This led to Mr. Watson directing Mr. Logue to have Mr. Simmons complete a further DCDP (that of 29 November). Mr. Simmons' evidence suggested that he initiated the DCDP. I just don't believe him. Mr. Watson initiated that action via Mr. Logue and it was the information that it then revealed that led to Mr. Watson making the further enquiries he did and then to the meeting of 9 December. 237 Issues were also raised with Mr. Watson about Mr. Simmons' relationship with Mr. Pappas of Techton Pty Ltd that Mr. Watson had not been aware of previously. 238 Neither Mr. Logue nor Mr. Watson could possibly have known that the DCDP's Mr. Simmons was providing up until December 2004 were inaccurate. As Mr. Logue said he accepted the information provided at face value. Neither men had cause to question Mr. Simmons. How could they when he was just putting "NIL", "NIL", "NIL" throughout the returns? He provided no information that would have produced a query or follow-up from Mr. Watson. 239 The supplementary return of 22 December provided much more information than previously disclosed, information as per the ASIC search. However there was still no mention of one company Sydneyside Property Group Pty Ltd that Mr. Simmons had listed as owning 17 Fontainbleau Street, Sans Souci under the discretionary disclosures. He did not indicate that he had in fact been involved in that company - albeit for a short period from late 2002 to early 2003. Whilst that was before the reporting period 2003/04 he stated at the bottom of the disclosure " To the best of my knowledge no company that I have been associated with, other than for those listed above have bought or sold any property or conducted business in the Rockdale Local Government Area". Whilst it may seem to be a very minor issue he had still not declared his previous interest in Sydneyside Property Group. Sydneyside Property Group is however, mentioned in paragraph 2 of his explanatory letter but for some reason not listed in the DCDP. 240 However, what this further DCDP does not declare is any income which may have been received by Mr. Simmons, as a consequence of his involvement with any of the companies listed, companies which, in some instances, owned property with the City. 241 Mr. McConnell directed the Commission's attention to the email exchanges between Mr. Watson and Mr. Simmons from 29-31 December. 242 Following receipt of the 22 December supplementary DCDP Mr. Watson sent an email to Mr. Simmons (29 December) indicating that he needed to provide certain information "before I make a determination on the issues". That information was confirmation that Mr. Simmons had received Mr. Logue's 10 September memo and attachments about the 2003/04 DCDP. Confirmation that his disclosures for the period as set out in the 22 December return was "final and accurate"... and "supersedes all others submitted". Completion of a supplementary return for 3 July to 3 December 2004 and confirmation that he was aware of and understood his responsibilities under Councils' Code of Conduct. 243 Mr. Watson also sought the following in paragraph 4 "Can you please supply me with copies of all notifications of conflicts of interests/non pecuniary interests which you have given to anyone in the Council for any matter which might impact on your Council duties since you commenced employment with the Council". 244 Mr. Simmons replied (31.12.04) asking for copies of both Mr. Logue's memo and attachments and also Council's Code of Conduct. He sought an extension of time to reply until his return from leave on 31 January 2005. 245 Mr. Watson further responded (31.12.04) saying he had simply sought confirmation of the matters he raised, that the Code of Conduct was on the Intranet and as to Mr. Logue's memo and the attachments he must have had those as they were attached to his 2003/2004 DCDP form. 246 However, Mr. Simmons' further replied to this email (31.12.04) and requested the information he sought so that he could provide the information Mr. Watson required. 247 I must say I am surprised that Mr. Simmons left it until this late stage to go checking the Code of Conduct and the attachments to Mr. Logue's memo and that he needed those to respond to Mr. Watson's request. 248 Mr. Simmons' further letter of 2 February essentially said he couldn't confirm whether he had received the original memo sent by Mr. Logue on 10 September as that hadn't been provided to him by Mr. Watson (presumably so he could check they were the same). His declaration of 22 December was final and superseded all others and he couldn't provide any copies of notifications of conflicts of interests he had made as they had all been verbal. Mr. Watson was invited to contact those named in the Mr. Simmons' letters to verify this. 249 Lastly, he indicated that he was "aware" Council had a Code of Conduct and that "as a result of these proceedings he had recently obtained a copy, however, he had not had an opportunity to read it cover to cover", but he had read certain sections relevant to his position. 250 Frankly, I am concerned that after 13 years with Council he maintained that he had not considered (or been requested to consider) the Code more fully at a much earlier stage. 251 This is a matter Council should take up to insure all employees, including those at a senior level, are fully aware of the Code of Conduct. That is not to say that that has not already occurred and Mr. Simmons is simply trying to suggest his ignorance of the Code (and by implication a failure on the part of the Council to make sure he was aware of the Code) is the reason for his failure to complete the DCDP's as required. He had a clear obligation, particularly given his senior and supervisory position to take steps to make himself familiar with the Code and comply with its provisions. 252 Despite the thundercloud and doubts Mr. Newell sought to cast over Mr. Tyrpenou's notes of the meeting of 2 February, due primarily to the listing of the allegedly fictional company "Idobe", overall, after careful consideration of both versions I have come to the conclusion that Mr. Tyrpenou's notes accurately reflect the main thrust of the meeting. They merely summarise the main issues raised and discussed in brief. They are clearly not a word for word verbatim account of everything that was said between the parties. 253 Having been involved for many, many years with note/minute taking in a variety of forums/organisations it is my experience that they are rarely a verbatim record of everything said precisely the way it was said. This only happens if one is tape recording proceedings and then exactly typing up a transcript or one has a person taking the minutes in shorthand. 254 Whilst Mr. Simmons' notes are more detailed in terms of his recording of what he maintains was actually said, the same issues as noted by Mr. Tyrpenou notes, were clearly traversed. The difference between the two versions is one of form not substance, in my view. 255 There is no doubt that the clear issue that emerged from the meeting, after going through the ASIC list (and I will comment more on this shortly), was the issue of non-declaration of income received by Mr. Simmons as a consequence of his involvement with various companies. 256 Certainly, there was not income from every company. However, Mr. Simmons clearly said in his letter to Mr. Casey in April 2003, and confirmed in his evidence, that this essentially was to be a money making venture in which he expected to make a profit and profit sufficient to enable him to leave Council and rely on that income for his livelihood. There were also three companies that he had been involved with since 1996 - 1998. 257 That he made losses was beside the point. That the income he received was not profit but a return of his outgoings (although there was mention of money going to loan repayments) was also beside the point. Part B of the DCDP in Section 3 lists 2 parts " Sources of other income I reasonably expect to receive in the period commencing on the first day after the return back and ending the following 30 June" and "Sources of other income I received at any time during the return period". Whichever was not applicable was to be deleted. There was also a notation that " Include description sufficient to identify the person from whom or the circumstances in which that income was received". 258 From the 2002/03 DCDP Mr. Simmons had listed property owned in Marrickville at Part A. Real Property and "rent" from that property in Part B. He clearly understood the form sufficiently to do that. 259 If he had bothered to read the relevant attachments to Mr. Logue's memo he would have received assistance in completing his return properly. Such as the fact that income less than $500 not needing to be declared. There is also a section "Suggestions for Avoidance of Common Problems in the Completion of Returns" which deals with this, and the issue of disclosures broadly, in more detail. 260 This issue of income not declared was clearly the principal issue of concern for Mr. Watson on 2 February. Indeed, it was also an issue of concern for Mr. Robertson, Mr. Simmons' representative, who as Mr. Watson said (and I have no doubt that that is what happened), effectively took over the meeting and went through the ASIC list. 261 In relation to the ASIC list and Mr. Tyrpenou's notes if one sets out the 10 companies in the notes side by side with the ASIC list they clearly line up in the exact same order. There are, however clear, typographical errors in the Tyrpenou notes as follows: Tyrpenou's Notes ASIC List 1. Idobe - Kababy Pty Ltd 3. Australian Property Group - Australian Property Group (Norfolk) Pty Ltd 5. Glamour Property Group - Glama Investments Pty Ltd 6. Khabiby Property Group - Kababy Pty Ltd 7. Plantanous Property Group - Platanos Investments Pty Ltd 8. Sydney Side Property Group - Sydneyside Property Group Pty Ltd 9. Australian Property Group Norfolk - Australian Property Group Pty Ltd Christina's Property Group (No.2) and Coral Property Group (No.10) were correctly listed in the Tyrpenou notes 262 It is obvious to me that "Idobe" should have been Kababy and 3 & 9 have been mixed up. 263 Of course, it does show total sloppiness on both Mr. Tyrpenou's part and Mr. Watson's part in not checking the notes initially and also not identifying the errors when the Affidavit was prepared. Mr. Watson made concessions under cross-examination that I don't believe would have been made if more care had been applied to the preparation of Council's case in relation to these notes. 264 However, it remains that on my careful examination, which included an exercise in setting all companies out side by side on paper in the order of the ASIC search (and some companies are listed more than once due to different positions held by Mr. Simmons in the same company), I am satisfied the notes reflect that all the companies in the ASIC search were examined (there were no non-existent companies referred to) and Mr. Simmons had the opportunity of indicating the position in relation to each one. 265 The other issues raised during the meeting (in both versions) was Mr. Simmons' association with Mr. Pappas of Techton P/L, the Architect for the family home DA as well as Mr. Simmons' attendance and participation in the 15 December Council meeting. 266 In relation to his association with Mr. Pappas, even on Mr. Simmons' version, Mr. Pappas or Techton had been involved with submitting DA's for approval that were assessed by Assessment Officers under his supervision and control and who had approved applications. Such applications were being processed at the same time his fathers' application was being dealt with by Council. He stressed he had not involved himself in assessing any of the applications. However quite rightly the concern expressed by Mr. Watson was that this association and the conflicts of interest arising were not declared either to Mr. Simmons' Manager, Mr. Raft or to Mr. Watson. 267 It is apparent from the evidence that Mr. Pappas was also involved in three of the DA's made in relation to the properties mentioned in the DCDP's of 29 November as being owned by 2 companies Mr. Simmons was formerly involved with. This is also the case in relation to at least one of the three additional properties referred to in his Affidavit as being discussed with Mr. Shankar and not assessed by him, but not disclosed in any DCDP as a discretionary interest. 268 What Mr. Simmons also didn't declare (in either the DCDP or explanatory letter of 22 December) was that Mr. Pappas was also the architect for the DA for the family home. Mr. Pappas also appeared with Mr. Simmons and Mr. Smits at the 15 December Council meeting. 269 In relation to the Council meeting, I accept Mr. Newell's submission that it cannot be said that Mr. Simmons "argued" with Councillors about the DA. It does not appear to have been his intention to speak, only to demonstrate the model. He answered two technical questions only, I accept that. I also accept that no-one told him he shouldn't speak after he specifically asked if it was alright to do so. 270 However, that is not the issue in my view. The issue is that he didn't declare in a public forum and formally to Council, that the matter involved went beyond the fact that it was his father's house, he lived there and he was a Council Assessment Officer. He, in fact, held his Father's Power of Attorney. That changed the nature of his appearance and his interest before the body which had the power to approve or reject the DA. 271 I note Mr. George Raft, his Manager, left the chambers because of a potential conflict of interest as Mr. Simmons was a member of his staff. If Mr. Simmons had not been representing his father he would have had to leave also. Whilst he may have been in the position of having to be there as he said, (and I do not know whether that is in fact the case) again, I stress the issue is the non-declaration of precisely what his interest was and his role at Council. 272 I agree Mr. Watson did not raise the matter directly with Mr. Simmons subsequently, however, he clearly raised it with Mr. Robertson in the letter to DEPA of 15 December via the handwritten notation on the bottom of the letter. Mr. Robertson was now representing Mr. Simmons and communicating with Council on his behalf. 273 I have no doubt whatsoever, that Mr. Robertson would have passed on those comments to Mr. Simmons. I accept however, that there is no evidence of that. That the matter was not taken further at that time seems to me to be because Mr. Watson had undertaken to give Mr. Simmons an extension of time in which to respond to his memo of 13 December. However, I also accept that there was no formal advice that this was a problem nor a formal request from Mr. Watson for him to address that issue in the 22 December reply and DCDP. To that extent he wasn't put on notice that that was now an issue to be given consideration by Mr. Watson in determining whether he would proceed to terminate him. He should formally have been put on such notice and the reasons it was an issue clearly spelt out. 274 The meeting of 2 February was effectively called to a halt by Mr. Robertson seeking to speak privately with Mr. Simmons and Council once the issues of income not declared, the association with Mr. Pappas and the events of the Council meeting were raised. 275 I accept Mr. Watson's evidence (rather than Mr. Simmons) that it was in fact Mr. Robertson who requested this course of action. Unfortunately, Mr. Simmons was not very forthcoming at all about what Mr Robertson said to him or how Mr. Robertson came to cease to represent him. Unfortunately no questions from anyone were directed to Mr. Simmons on these two issues. 276 On the issue of the proposed resignation and any alternative action likely or proposed by Council, I make this observation. Mr. Robertson is the Secretary of DEPA. It is a small Union. Mr. Robertson appears on a regular basis (and has done for many years) before the various members of the Commission (including as currently constituted) and Full Benches. He also participates in the Local Government industry generally in negotiations concerning his members and their interests. This is well-known. In my experience Mr. Robertson is a very blunt and forthright advocate on behalf of his members. He is not backward in coming forward by any means. I have had occasion to have what could only be termed as "vigorous" and frank exchanges with Mr. Robertson. It is against this background of experience that I simply cannot conceive of there existing a situation where Mr. Robertson would not have spelt out to Mr. Simmons precisely what the options were that faced him. He hardly turned to him and simply said "Oh I think I'll suggest to Council that you resign!" He would have been well aware of the very serious situation confronting Mr. Simmons and was proposing what he considered was the best that could be retrieved from that, in my view. 277 I accept that there is no specific evidence as to this. However I consider that I can draw inferences as to what happened from the situation as described from what evidence there is and I do so. 278 Mr. Newell raises a Jones v Dunkell point against Council for not calling Mr. Robertson to confirm the notes of the meeting on the basis that it wouldn't have assisted their case. 279 The same Jones v Dunkell issue could be raised against Mr. Simmons for not calling the person who formerly represented him and in not revealing in evidence the full details of what occurred between them on the basis that it wouldn't have assisted his case. 280 Mr. Watson did not take any administrative steps to put in train implementation of the proposed resignation e.g. advising the payroll section etc. It is clear he gave Mr. Simmons an extension of time to consider the issue until Wednesday 9 February. 281 That Mr. Simmons was at work on the Monday following and may have worked normally, I do not consider to be of sufficient significance to be taken into account in considering that if misconduct had taken place he should have been instantly removed from the premises. He had been given an extension to consider the proposal put forward to end the employment relationship on a basis that would spare Mr. Simmons any of the usual embarrassment, publicity and difficulties that would normally attend a dismissal for misconduct. It is also clear that Mr. Watson conveyed to Mr. Simmons that the issues traversed on 2 February would not be revisited. 282 However, I accept that what is not clear is whether what consequences would flow if a resignation was not forthcoming was expressly put. It should have been as soon as Mr. Watson was made aware that Mr. Robertson was no longer representing Mr. Simmons and Mr. Simmons was clearly seeking to consider the matter further (as outlined by his request for another meeting). 283 This raises issues of procedural fairness and I consider that Council has two problems. Firstly, the failure to formally advise Mr. Simmons that his participation in the Council meeting of 15 December was now a disciplinary issue to be taken into account in determining whether he was to be terminated. Secondly, the failure by Council to properly put forward, after Mr. Robertson's withdrawal, that Mr. Simmons conduct was considered to be misconduct warranting summary dismissal with resignation available to him as an alternative. 284 Mr. Simmons' had also sought to rely on Mr. Azzi's alleged non-disclosures of Council's unequal treatment of him in comparison. Again an effort to shift blame. 285 Reliance was placed on ASIC searches on Michael Azzi. Unfortunately, the same issue of sloppiness and failing to check documentation properly can be laid at the door of Mr. Simmons' Solicitors as following queries of the Commission and Mr. Watson (during his cross-examination) it was abundantly apparent that the ASIC search covered at least two other Michael Azzis with different birthdates, different birthplaces and different ID numbers. 286 The search on the Michael Azzi that appeared to correspond with the Michael Azzi at the Council (compared with his DCDP information) clearly shows another company involvement not declared in a DCDP. There is no evidence as to where that company might operate however. 287 Mr. Watson had no knowledge of that information but indicated that it was a matter he would be following up with Mr. Azzi when he returned to Council. If anything untoward has occurred I would expect, after proper investigation that appropriate disciplinary action would be taken if required. 288 In New South Wales Fire Brigade Employees Union (on behalf of Natoli) and New South Wales Fire Brigade [2005] NSWIRComm 440, Sams DP identifies at p.218, the four questions that arise for consideration in a case for summary dismissal for misconduct. 1. Was the conduct against the dismissed employee proven? 2. Did the seriousness of the conduct justify summary dismissal? 3. Did the conduct constitute a fundamental and wilful representation of the contract of employment? 4. Were mitigating factors taken into account? 289 I have very carefully considered the evidence and submissions and have come to the inescapable conclusion that Mr. Simmons did commit misconduct. That misconduct was serious and in my view was quite deliberate and therefore wilful. 290 I come to that conclusion for the following reasons: · In Mr. Simmons' senior position with his 13 years of experience he had a responsibility to be fully aware of Council's Code of Conduct and also his responsibilities in completing DCDP's properly and providing all information required. · He clearly understood what a potential conflict of interest was as evidenced by his discussions with Mr. Shankar and his refusal to be involved in the particular DA's in question. · He had clear and full information provided to him to enable him to complete the DCDP's. His actions in, he says, not reading the information displays breathtaking carelessness, negligence and a cavalier attitude to his responsibilities. Mr. McConnell's submission that this was a deliberate ploy essentially to rely on ignorance as an excuse is, in my view, a reasonable conclusion to draw. · He raised issues of concern with Mr. Logue concerning privacy of information in relation to DCDP's. That suggests to me that he was well aware that there was information he knew he ought to disclose but didn't want to. I also note Mr. Watson's evidence about his comments in the December meeting about his "private business". · It is being just too clever by far and playing with the truth to suggest that he thought he only had to provide information in 2003 as at the return date of the 2002/03 DCDP rather than for the whole year. I believe that was a deliberate concealing of the true position. · Mr. Simmons' attempt to deflect the blame for his failures to complete the DCDP's correctly on Mr. Logue does him no credit whatsoever. · I do not accept that Mr. Simmons did not read the whole of the contents of Mr. Watson's email of 13 June and was unaware that he had to advise Mr. Watson of any conflicts of interest as communicated in the email. · He clearly understood the impact of the email as he divested himself of his company interests yet did not at any stage declare them which he was supposed to. Again, I believe this action was quite deliberate as Mr. McConnell rightly points out he only subsequently declared the minimum of what he had to when specifically asked to do so. · As previously discussed each of the supplementary disclosures of 29 November, 22 December and 2 February were inaccurate and I consider deliberately so. · At the meeting of 9 December he had an opportunity of fully advising Council of information on interests he had previously withheld. He did not do so. · I do not accept that Mr. Simmons was not aware of the considerable publicity and attending concerns about the ICAC investigations and therefore the necessity of being particularly careful and scrupulous in his obligations and responsibilities to Council in anything remotely to do with developments within the City. The ICAC investigations featured prominently in local newspapers in the area and the metropolitan press and radio and television. It has resulted in criminal charges and convictions against certain persons as a consequence. That is public knowledge. I do not consider that Mr. Watson was simply out to "get a scalp" because of the ICAC investigation to show both he and Council were on the ball. · Mr. Simmons was clearly participating and proposing to participate in companies engaged in developments within the Rockdale Council area. That was totally in conflict with his role in Council and not permitted under the Local Government Act. · He deliberately did not declare pecuniary and discretionary interests to his employer as required by the DCDP's. · He should have clearly declared his interest and involvement in the family home DA at the meeting of 15 December when he appeared even if he had said not a single word. He should have declared his interest before answering questions. 291 I have also considered taken into account the demeanour of the witnesses Mr. Raft and Mr. Logue gave honest and straightforward evidence. I have to say I was not overly impressed with Mr. Simmons. It is hard to put a finger on it precisely but he was so deliberate and restrained, in that nothing was put forward but the bare minimum of what was asked, (this may of course have been on advice) but usually I find applicants more forthcoming. It was hard not to come to a conclusion that he would only reveal what was absolutely basic and essential even if there was more to be revealed. 292 In contrast, I found Mr. Watson very open and forthcoming, he was not always aware of the evidentiary pits Mr. Newell was digging for him to fall into, nonetheless I accept his evidence as honest and forthright. 293 The misconduct was so serious, given his position, (particularly his supervisory roles) his seniority and service with Council, that it did warrant summary dismissal. The conduct displayed not only a blatant disregard for his obligations and responsibilities but also in my view at worst raises issues of how he could possibly be relied on to properly vet DA applications before him, if he himself was not prepared to subject himself to the required scrutiny of his employer and the public. It displays such poor performance and attention to detail that that would also raise questions about the diligence he would give to DA paperwork coming to him for checking and approval in the course of carrying out his duties. 294 Council has clearly discharged the onus it has to establish that Mr. Simmons committed misconduct suffice to warrant termination. 295 In Natoli, Sams D.P. also considers the issue of harshness of penalty citing the various relevant authorities - Byrne and Anor v Australian Airlines (1995) 61 IR 32 (p 72), Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 (at p. 302), Little v Commissioner of Police (No. 2) (2002) 112 IR 212, Busways v Johnson (1994) 55 IR 255, Wells v Commissioner of Police (2000) 100 IR 106. 296 The issue of the consequences for an applicant of such a decision, the need for that to be considered by the Commission and for employers to be fully satisfied that misconduct has taken place is dealt with by the Full Bench in Franklins Ltd v Webb (1996) 72 IR 257 at p. 261 and also by Sams DP in Hill v Department of Juvenile Justice (2000) NSWIRComm 128 at para. 62-63. 297 In considering the above authorities I accept that Mr. Simmons has been severely impacted by his dismissal from a specialised position after 13 years unblemished service. However, there is no evidence before the Commission that in fact this has hindered him or will hinder him in finding suitable and alternative employment. There is in fact, no evidence that Mr. Simmons had taken any appropriate action whatsoever to mitigate his loss per S.89(6) of the Act. The fact that he actually seeks re-instatement does not remove his obligation to seek to mitigate his loss. An applicant cannot just sit on their hands, as it were, pending the outcome of a S.84 application, in the hope that it goes their way. 298 In 2002-03 he was clearly contemplating leaving Council and seeking to make his livelihood from developments. With his specialised knowledge and experience there may clearly, in my view, be options for employment in the private sector. 299 Had the option of resignation, with the two months absence on leave to look for alternate employment, been taken up he may well have secured such alternate relevant employment. Mr. Watson was being more than generous in the circumstances and was clearly taking his record and service into consideration in agreeing to the resignation proposed. 300 On the issue of repudiation of the employment contract Sams DP observed in Natoli at para.225 " The allegations against the applicant were described as misconduct - the additional objectives "wilful" or "serious" were not used. However, in my opinion, where an employee has been dismissed for misconduct, the conduct must be such as to constitute a repudiation of the contract of employment by the employee. There must be disclosed a wilful and deliberate intent by the employee which strikes at the very core of the employment relationship". 301 He then went on to cite at para. 226, extracts from the relevant authorities to be considered in determining that issue, viz- North v Television Corporation Ltd (1976) 11 ALR 599, Day v Lumley Life Limited (1999) 90 IR 70, Concut Pty Ltd v Worrell & Anor (2000) 103 IR 100 as well as citing Transport Workers Union of Australia New South Wales Branch (on behalf Vallis) (2002) NSW IR COMM 46 and TNT Australia Pty Ltd t/as TNT Express and Hunt v Hornsby Shire Council (2001) NSWIRComm 242. 302 I have carefully considered those authorities and as previously indicated I have in fact formed the view that Mr. Simmons did in fact commit misconduct and that misconduct was both serious and wilful. Given the nature of the misconduct, there is no doubt whatsoever in my mind that it clearly strikes at the heart of Mr. Simmons' obligations as an employee and was therefore an absolute repudiation of the employment contract. 303 As to mitigating factors, as I observed in Juleff v Linfox (unreported) IRC 4293/05 17 June 2005, the combination of length of service and unlimited record is a two edged sword. An employer, such as the Council, has the right to expect that a long serving senior employee with an unblemished record knows the right thing to do and does it. Failure to do so (and deliberate failure at that) cannot be excused or condoned by that record. Genuine and honest mistakes, lapses in performance or issues caused by external factors may mean that such a record can and indeed should be taken into account. However, I consider that that is not the case in relation to the actions of Mr. Simmons. 304 Whilst the onus is on Council to establish that misconduct has occurred per Pastrycooks etc. There still remains an onus on Mr. Simmons, the applicant, to establish that in all the circumstances, misconduct notwithstanding, the termination was harsh, unjust or unreasonable. Only if Mr. Simmons was totally exonerated of any misconduct would it automatically, as it were, mean that the termination became harsh , unjust or unreasonable. 305 A dismissal can be both substantively and procedurally unfair. The case usually quoted in this regard is the High Court judgement in Byrne & Anor v Australian Airlines (1995) 61 IR 32 at p72. 306 Byrne & Anor v Australian Airlines has often been relied on in Full Bench Decisions of this Commission including Wang v Crestell Industries Pty Ltd (1997) 73 IR 454; Rapp v Wauchope RSL Club (1998) 81 IR 116; Bigg & Anor v New South Wales Police Service (1998) 80 IR 434; Burke v McGirr (1998) 87 IR 54; Busways v Johnson (1994) 55 IR 255; and Antanakopoulos v State Bank (1999) 91 IR 385. 307 I have already found that Mr. Simmons did commit misconduct and that Council had discharged the onus on it to establish such. Therefore applying Byrne & Anor v Australian Airlines and the other cases cited there is no basis for any finding that the termination of Mr. Simmons was harsh, unjust or unreasonable on a substantive basis. 308 In arriving at that conclusion I have been mindful of the tests to be applied per Briginshaw v Briginshaw and they have been satisfied as indicated earlier. I have no doubts in this matter. 309 However, when it comes to considering whether the termination was procedurally unfair I have concerns as expressed earlier on two grounds. Notwithstanding those concerns there is no doubt however, that overall the process followed by Council was fair in that the issues were clearly raised in precise terms with Mr. Simmons; he was given the opportunity of representation; he was given the opportunity to respond and indeed given additional time, when sought, in which to respond, and there could be no doubt in his mind after Mr. Watson's memo of 13 December that the issues were serious, raised considerations of what could only be misconduct (the possibility of corrupt conduct was referred to) and a clear proposal of intention to terminate was specifically raised. Mr. Simmons was also given the opportunity of making written and oral submissions as to why that termination should not take place. 310 Having said that, I am concerned firstly that Council did not formally put Mr. Simmons on notice about a problem with his participation in the 15 December Council meeting, what the problem was and that that was an issue of such concern it could impact on any decision to terminate him. This should have been done prior to the meeting of 2 February. Although as previously stated, I believe Mr. Simmons was aware, albeit informally, that there was an issue of concern on the part of Mr. Watson about the meeting. 311 Secondly, I am concerned about the circumstances and lack of clarity about the resignation/termination options and how the termination events unfolded at the end. Once Mr. Robertson was out of the picture Mr. Watson should have formally communicated the options to Mr. Simmons and clearly indicated that if the resignation was not taken up then termination for misconduct was an automatic consequence. 312 The expression "harsh, unjust or unreasonable", was also considered in Byrne & Anor v Australian Airlines at p. 72. The principle was further discussed in Outboard World v Muir (Cahill VP, Peterson J. and Tabbaa C) (1993) 51 IR 167 at p.182. Essentially, those cases hold that it is not necessary that a termination be found to be harsh and unjust and unreasonable. It can be one or any or all of those three. 313 The meaning of those individual terms has been considered in detail by Connor C in Parker v Capitol Painters & Decorators P/L (1996) 68 IR 100 at 104 and by Sams DP in Sams v Contact Point International Pty Ltd (2001) NSWIRComm 18. I adopt those considerations. 314 Bankstown City Council v Paris (Wright P, Peterson J and Bishop C) IRC 262 of 1999 23 August 1999, is authority for the fact that I must make a positive finding as to whether the termination of Mr. Simmons was harsh, or unjust, or unreasonable (or any combination thereof). 315 I have raised concerns about procedure. They are not so serious as to strike down the termination for want of procedural fairness. However, notwithstanding the gravity of his conduct, Council was prepared to take his good record and years of service into account and accept a resignation to be effective after two months leave of absence with pay (as annual leave). It is unfortunate that matters so precipitously came to a head without further consideration and summary termination occurred. Not that I consider that there was in fact any additional material or facts that could have been considered however it was the manner of the abrupt cessation of the relationship that concerns me. I am also concerned about the procedural issues I have already raised about the issue of the 15 December Council meeting. 316 For those reasons, I find the termination unreasonable on procedural grounds. 317 Mr. Simmons sought only re-instatement not compensation. However, I do not consider re-instatement practicable. Notwithstanding the evidence that Mr. Logue and Mr. Raft would have no problems working with Mr. Simmons quite rightly the fundamental issue raised by Mr. Watson of trust sets a hurdle that cannot in my view be overcome. In the same way as John Loty could not be reinstated in Loty and Holloway v Australian Workers' Union (1977) 71 AR 95, I consider that the fundamental relationship of trust necessary between Council and Mr. Simmons cannot be restored. 318 That leaves the only option open to the Commission to be an order for compensation, notwithstanding that such was not sought by Mr. Simmons. 319 There are no provisions in the Act as to what is the appropriate amount to be awarded in compensation where a termination is found to be harsh, unjust or unreasonable. 320 In terms of Section 89 (5) the upper limit for monetary compensation is set at "an amount of compensation not exceeding six months remuneration of the applicant at the average rate received over the period of six months immediately before being dismissed". Section 89.5 is concerned essentially with the loss of earnings. Section 89.6 provides as follows: "When assessing any compensation hurdle, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration that would have been payable if the applicant has succeeded in obtaining alternate employment". 321 However, in D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 the Full Bench of the Commission (Wright J President, Walton J Vice President and Tabbaa C) commented at page 363 that: "The power in the Commission to make a money order subject to the limitation on the quantum of compensation and the matters required to be taken into account by Section 89.6, is nevertheless within the Commission's discretion whilst the Commission is required to take into account the matters identified in Section 89.6 those matters are not necessarily to be reflected in any particular arithmetic or definitive way in the money order for compensation made". 322 As is my usual practice I list the factors that I have taken into account (not in any particular order of priority or importance) in determining the amount of compensation contained in the Orders I issue in this matter as follows: · Mr. Simmons had 13 years service with Council · That service had been unblemished. · No other performance issues apart from the completion of the DCDP's had ever been raised with him. · He occupied a senior and specialised position with Council. · There is no evidence that Mr. Simmons has made any effort to find alternate employment notwithstanding that he sought re-instatement. · I consider that Mr. Simmons with his knowledge, skills and experience at Council will be able to find suitable alternate employment. · I have formed the view that Mr. Simmons did commit the serious misconduct for which he was dismissed. · Re-instatement is not practicable. · The General Manager of Council was prepared to accept a resignation from Mr. Simmons and allow him to proceed immediately on two months leave. · I have found that procedurally Council's final actions in relation to the dismissal of Mr. Simmons were unreasonable. ORDERS 1. Rockdale City Council shall pay Michael Simmons an amount equal to three months pay. 2. Such payment shall be made within 28 days of these Orders. 3. These Orders take effect on and from 01 February 2006. Elizabeth Bishop Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.