Industrial Relations Commission New South Wales Medium Neutral Citation: Wayne Butler and Safety Return to Work Support Division [2013] NSWIRComm 45 Hearing dates: 11, 12, 15, 16, 17 April 2013 Decision date: 21 June 2013 Jurisdiction: Industrial Relations Commission Before: Harrison DP Decision: 1. Pursuant to section 89 (1) of the Industrial Relations Act 1996 the Safety, Return to Work and Support Division is ordered to reinstate Mr Wayne Butler to his former position on terms not less favourable than those that would have been applicable but for dismissal within 14 (fourteen) days of the date of this decision. 2. Pursuant to section 89 (3) of the Industrial Relations Act 1996 the Safety, Return to Work and Support Division is ordered to pay to Mr Wayne Butler the remuneration he would have received, but for being dismissed, before being reinstated in accordance with the order. 3. Pursuant to section 89 (4) of the Industrial Relations Act 1996 the period of employment of Mr Butler by the Safety, Return to Work and Support Division is taken not to have been broken by the dismissal. Catchwords: Application re unfair dismissal - public sector employment - WorkCover NSW. Alleged conduct contrary to policy - no allegation of dishonesty - investigation process - charges re misuse of position for purchase of goods for voluntary organisation - secondary employment - use of email, internet, mobile communication devices - gifts and benefits - information security - lodgement of time sheets and recording of work hours. Held - Investigation flawed - conclusions not supported by fact - process devoid of fairness - decision maker misled - lack of substance in allegations. Dismissal harsh, unreasonable and unjust. Reinstatement, remuneration and continuity of service ordered. Legislation Cited: Industrial Relations Act 1996 Public Sector Management Act Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Jones v Dunkel (1959) 101 CLR 298 Pastry Cooks Union v Gartrell White No 3 35 IR 70 Category: Principal judgment Parties: Wayne Butler (Applicant) Safety Return to Work Support Division (Respondent) Representation: R Reitano of counsel (Applicant) G Phillips solicitor (Respondent) W G McNally Jones Staff (Applicant) K L Gates (Respondent) File Number(s): IRC 1177 of 2012 DECISION 1Mr Wayne Butler was employed by the New South Wales Government in the Safety, Return to Work and Support Division (WorkCover) from 16 October 2000 until 5 November 2012. 2Mr Butler's employment was terminated by correspondence from the General Manager which states: Dear Mr Butler I refer to my letter of 27 July 2012 where I advised you I had formed the opinion you had engaged in misconduct and I was considering imposing disciplinary action. I have now considered the investigation report, your written submissions and your submissions made at the interview on 9 October 2012 and have formed the opinion that all the allegations against you have been sustained in that you: 1. misused your position in the Information Technology Services Branch Services by seeking to procure IT equipment at a discounted commercial rate for personal use and/or associated with his role in the Shared Parenting Council of Australia; 2. misused your position in the Information Technology Services Branch, by seeking to procure gifts in the form of T shirts from a company Dimensions Data which at the time was in a contractual arrangement as a supplier with WorkCover; 3. misused the WorkCover mobile telephone that had been allocated to you; 4. engaged in unauthorised secondary employment contrary to the Code of Conduct; 5. failed to maintain information security in relation to WorkCover documents and records by forwarding them to other un-secure commercial sites; 6. failed to comply with the policy and procedure in relation to working hours and Flex policy by not submitting your completed flex sheets at the end of each flex period; 7. failed to comply with the Code of Conduct and the need to carry out you [sic] duties responsibly and ethically by failing to accurately record your working hours in the correct manner; and 8. failed to comply with the Code of Conduct and the need to carry out your duties responsibly and ethically by failing to report and record gifts and benefits received as part of you [sic] employment in the appropriate Register. Please find attached my detailed findings regarding each of allegations. The allegations are very serious and your conduct is wholly unacceptable. Following consideration of the evidence provided across all the allegations, I have formed the view that you believed that you were a "special case", working beyond and outside any compliance with the usual policies and procedures that applied to all employees of the Public Service of NSW. It is apparent to me that your belief that the work you undertake in the community and your capacity to negotiate savings to WorkCover outweighed any obligation you had to comply with your conditions of employment. Based upon the evidence available, I have determined that your conduct constitutes misconduct and that there is no alternative in all the circumstances but to terminate your employment on this basis to take effect from the date of this letter. We advise that any property belonging to the Safety, Return to Work and Support Division, including but not limited to laptop computers and security passes, must be returned to Amy Lecky on or before Tuesday, 13 November 2012. We note that the property can be returned to Amy Lecky, Level 5, 92-100 Donnison Street, Gosford. Your outstanding leave entitlements and any unpaid salary will be debited to your account upon receipt of all Safety, Return to Work and Support Division property. 3Mr Phillips made it clear that dishonesty, or allegations of dishonesty, were not part of the respondent's case. 4This application was subject to unsuccessful conciliation on 6 December 2012 resulting in directions to bring the matter to hearing. 5Evidence was received from Mr Wayne Butler; Ms Samantha Stubbs; Mr Peter Devine, Manager, Employee Relations and Policy Team, Safety, Return to Work and Support Division (SRWSD); and Mr John Watson, General Manager Work Health and Safety Division, SRWSD. Mr Watson was the independent decision maker in respect to the allegations against Mr Butler. 6It is necessary to consider the validity and gravity of the allegations; the circumstances where the parties are not materially apart on the facts but differ markedly on the analysis of the events, against the policy requirements of WorkCover; and the question of whether the sanction of dismissal is appropriate in the circumstances. Background Consideration 7WorkCover is a statutory regulator and prosecutor of workplace safety. Its employees are NSW Public Servants and required to have regard to a range of written policies which are generally directed to inform conduct and behaviour supporting public confidence in the body. 8The policies and procedures documents relied upon in these proceedings are: * WorkCover Authority of NSW Flexible Working Hours Agreement (10 November 1997) supported by Internal Procedure - Flex Procedure User Guide (attach 13 to exhibit 16, Affidavit of P Devine) * Internal Policy WorkCover Code of Conduct (exhibit 16 at attach 14) * Acceptable Usage of Electronic Communication Devices and Services Policy 3 May 2010 (exhibit 16 at attach 18) * Mobile Phones - Policy Statement and Guidelines On Their Use August 2006 (exhibit 16 at attach 19) * Safety, Return to Work and Support Division Code of Conduct and Ethics Policy February 2013 (exhibit 18) * WorkCover Gifts and Benefits Guidelines May 2007 (exhibit 19) * NSW Government Secondary Employment Policy (exhibit 25) 9Mr Butler commenced employment with WorkCover in November 2000 as a Project Manager tasked with developing software applications for WorkCover; then Manager of the Software Maintenance Team; Applications Architect; then from November 2008 in the position of Vendor and Contract Manager. 10Mr Butler was at the relevant time Executive Secretary of the Shared Parenting Council of Australia (SPCA) which is described as a not for profit representative body formed in 2002. Mr Butler is a volunteer and is associated in various activities on behalf of the SPCA including providing advice to government and individuals seeking assistance. 11Mr Butler provided a range of examples and testimonials to his interest in matters of information technology and his diligence and success in the interests of his employer. This evidence, contained in his Statement filed on 15 February 2013 (exhibit 2) is not challenged in any substantial manner: 20. My personal Appraisal and Development each year was exemplary and in my last Appraisal and Development report, it was noted that I had achieved substantial cost savings in the Workcover enterprise. Don Moir, in October 2010, noted in an interview with Mr Madden that I had an "excellent rapport with senior management and related team members and had an ability to get things done". 21. I had been awarded Branch Employee (BEE) awards, and WOW (Wins of the Week) for numerous works completed, and I received many emails from the Director IT commending my work, as well as letters from senior managers in relation to my work on the Stored Chemical Information Database system and NSW Fire steering committee ..."If I were seeking an IT Professional to manage a project or to maintain an existing system in a commercial environment, he would be my first choice". -by Peter Tuziak, Manager Licensing and Client relations. 22. Rob McNulty, in relation to a letter he wrote in 2007 to Janine Browning of the Workforce Planning team said of me, "He is a valuable member of IMB and is dedicated to the success of the branch as a quality service provider. He is often passionate about the goals and will not rest until the issues are resolved". As well "In his private capacity Wayne has been heavily involved in the Shared Parenting Council of Australia, a large National body dedicated to effecting shared parenting outcomes after separation through change to legislation...his efforts have been recognised through an award presented in Parliament House from the speaker in 2006". 12Mr Butler further deposed: 23. In my role either as Application Architect or Vendor and Contract Manager, at no time had I ever been cautioned, taken aside, spoken to or counselled either by my supervisor, Manager or Director in relation to any deviation from policy, procedure or process, nor had I ever been placed on any work performance plan. 13This statement is challenged by the Respondent. 14Mr Butler made this statement on the basis of an undertaking he received from his employer. 15A Performance Improvement Plan (PIP) (exhibit 14) was developed for Mr Butler by Mr Wayne Parker, Manager ADU and witnessed by Mr Chris Osborne, A/Program Manager on 21 February 2002. 16In the penultimate paragraph the PIP states: If sustained improvement of performance is achieved, all documentation relating to the Performance Improvement Plan shall be removed from Mr Butler's personal file, twelve (12) months after agreement that performance has reached a satisfactory level. 17A file note pertaining to a Performance Management - Initial Interview between Mr Parker and Mr Butler on 1 June 2001 (exhibit 12) records Mr Parker's concern for Mr Butler's health, wellbeing and state of mind as he struggled with the move from private to public sector, noting that enthusiasm was good. The file note states: This Report Will be placed on your personal file. It will remain on file for a period of six months after your first satisfactory performance review. After a period of continuous satisfactory performance, the note will be withdrawn from the personal file and destroyed. 18An unsigned Performance Improvement Plan dated June 2001 was also tendered (exhibit 13). Mr Butler's evidence is that at this time he was going through a very acrimonious separation, including issues of custody of his then 18 month old son. 19The evidence is that Mr Parker was aware of this and that Mr Butler's former partner had communicated with WorkCover, thus bringing his personal issues into the workplace. 20There is no argument that Mr Butler responded to the PIP and subsequently earned commendations and praise for his work. 21Mr Reitano put strident submissions that it was improper for WorkCover to rely on events of 2001/2002, contrary to its undertaking. 22The evidence of Mr Watson and Mr Devine is that Mr Parker did not have delegated authority to make the undertaking and accordingly WorkCover is not bound by it. 23I regard this as a scurrilous act of betrayal of an employee's trust. 24If no authority existed for the undertaking, it should not have been made. When made, the staff in line management and/or human resources should have brought the ineffectual nature of the undertaking to the attention of both Mr Parker and Mr Butler, not just let it rest. 25The issue of the validity of the undertaking is not pressed, however, it would appear to be a pro forma element of the Performance Improvement System in place at the time, which is even more disturbing. 26Notwithstanding any view as to the authority to make the undertaking, it was made and accepted in good faith and binds the employer. I regard the undertaking as valid for the purpose of these proceedings. The existence of exhibits 12, 13 and 14 (which go to this matter) does not act against the credit of Mr Butler, however, the argument now put that the undertaking was invalid does not reflect well upon WorkCover. 27I will take this aspect no further. 28There is no challenge to the evidence that Mr Butler's role in SPCA was widely known and accepted throughout WorkCover 29Mr Butler's evidence is that the work culture in the Information Technology Services Branch (ITSB) was challenging, characterised by grievances lodged by employees against other employees and management, which ultimately led to WorkCover commencing an independent culture review resulting in a report which became known as the Klaassen Report. 30This review, which Mr Butler deposed commenced around 16-20 September 2011, was preceded by the sudden resignation of the then ITSB Director, Mr Fuggle, on 9 September 2011 and marked a significant change in the attitude of Mr Moir, Mr Butler's manager, towards Mr Butler and his staff. Mr Butler deposed that Mr Moir became belligerent, confrontational, and a "nasty piece of work". The Investigation Process 31In the course of her enquiry Ms Klaassen advised Mr Butler to make an application for approval of secondary employment in respect to his activities in the SPCA, to be safe. 32As discussed below there is a question as to whether the relevant policy required approval for voluntary activities. I find that it did not. 33Mr Butler made the application for approval suggested by Ms Klaassen. 34The result was anything but safe. 35On or around 2 February 2012 WorkCover commenced an independent investigation into the conduct of Mr Butler. The resulting report on or around 9 March 2012 by Mr Madden, which it is put involved extensive interview and investigation and is said to run to six volumes, is not in evidence in these proceedings. 36Mr Devine's evidence is that the decision to engage an independent investigator was made to ensure that Mr Butler was not breaching his secondary employment approval. 37Mr Devine's evidence is that Ms Amy Lecky, Employee Relations Officer, informed him that immediately upon advising Mr Butler of the approval for secondary employment she decided to look at the SPCA website and noticed that Mr Butler's WorkCover phone number was listed as his contact. Ms Lecky thereupon reported this to Mr Devine. 38Ms Newman, Acting Chief Executive, who was with Mr Devine at the time of Ms Lecky's report, commented that this could be a breach of the approvals. 39This led to a decision on the same day to commence a disciplinary investigation on the grounds that Mr Butler allegedly engaged in misconduct within the meaning of s47 of the Public Sector Employment Management Act. 40The evidence is that no-one went directly to Mr Butler for an explanation or to suggest he change the contact. Mr Devine defended this action on the basis that he considered he should not contact Mr Butler after it had been decided that he be investigated. 41This investigation led to the conclusion that Mr Butler had used his mobile phone to contact an escort agency which triggered the decision to conduct a full investigation of Mr Butler's conduct and a referral to the Independent Commission Against Corruption on 13 March 2012. 42Mr Devine confirmed that the preliminary investigation by Mr Madden was deliberately kept secret from Mr Butler and that Mr Madden's instructions were not to speak to Mr Butler during the course of the investigation. 43Mr Madden sent emails to the SPCA under an assumed name. Mr Devine was aware of Mr Madden's covert activities, considered them appropriate, and did not regard this as dishonest, putting that the procedural guidelines are silent on the subject. 44Mr Devine agreed with Mr Reitano that the procedural guidelines imparted a requirement to be honest. 45Mr Devine conceded that Mr Butler was not provided with the preliminary report before he was required to respond to it, nor was he given the full report before being advised of the final version of allegations and before he was required to respond to them. 46Mr Butler was first afforded supervised access to the investigation report in the WorkCover offices at Gosford. When the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA) later sought access to act on Mr Butler's behalf they were refused, leading to dispute proceedings before Commissioner Tabbaa. Those proceedings resulted in an arrangement for the PSA to be provided with the full report with access by Mr Butler at the PSA's Sydney office, which Mr Reitano submitted, given Mr Butler's residency in the Gosford area, posed an unnecessary logistical impediment upon Mr Butler. 47Mr Devine deposed that this action was taken to protect the identity of witnesses and out of concern that if some of the information in the report was to "leak out", it would have damaged Mr Butler's reputation and that of WorkCover as an organisation. 48Mr Reitano submitted that the investigation process and outcomes were fundamentally flawed and biased against Mr Butler. 49This submission is supported at least by that part of the investigation report which suggests Mr Butler had an improper relationship with a sex worker. 50Nothing could be further from the truth. A simple enquiry to Mr Butler would have revealed that his communication with this person was limited to text messages in response to a request for assistance from the SPCA. 51Mr Butler is rightly incensed at this allegation. He was contacted, in his SPCA role, by a person identifying herself as "Jayde", informing him that she was a sex worker and sought advice and assistance in respect to custody issues. 52The person in question is Ms Stubbs who attended and gave evidence that she is the person referred to as Jayde and that she is a sex worker. Her evidence supports that of Mr Butler that the communication between them was by text message, substantially out of work hours, and confined to her family issues. 53Ms Stubbs deposed that until the time she attended to give evidence she had never met Mr Butler, however, had communicated with him by text message outlining her custody problem and received such advice and assistance available from the SPCA. 54It is evident that the investigator arrived at more sinister conclusions not detailed here but which also infected the process and misled Mr Watson as the decision maker. 55In my view the investigation process was fundamentally flawed in that it denied Mr Butler natural justice and arrived at conclusions that were not supported by the facts, which are discussed below in respect to each of the separate allegations. 56The evidence of Mr Devine is that he managed the logistical aspects of the investigation, including the case management, but was not involved in the decision making process or the forming of any views in respect to the investigator's findings; and was not involved in the decision to terminate Mr Butler's employment. 57The evidence of Mr Watson is that he considered and was informed by the contents of the investigator's report and formed the view that the allegations against Mr Butler were substantiated. 58Mr Watson deposed that the findings and recommendations of the investigator did not form the basis of his decision that Mr Butler should be summarily dismissed. 59Mr Watson deposed (exhibit 22, paras 30 and 36): 30. ....While I was informed by both the Investigation Report and the oral and written submissions that were provided to me by Mr Butler external to Mr Madden's investigation. I considered all of the available evidence when making my decision as to what disciplinary action was appropriate in the circumstances. 36. In considering all the evidence before me as the decision maker in this matter, I formed the view that the work practices and approach taken by Mr Butler falls a long way short of the level of accountability that is rightly expected of a New South Wales public servant. Indeed, I formed the view that Mr Butler believed that he was a "special case" working beyond and outside any compliance with the usual policies and procedures that applied to members of the NSW public service. It appears that Mr Butler was of the view that his work in the community and his capacity to negotiate savings for WorkCover in the contracts subject to his attention outweighed any obligation for him to comply with the conditions of his employment. 60Mr Watson noted new evidence put by Mr Butler in these proceedings that was not available to him at the time of his decision (exhibit 22 para 31): 31. In his Affidavit, Mr Butler provides evidence which at no time, Mr Butler put to Mr Madden or me in response to the allegations or decision to impose disciplinary action. (a) At paragraph 10 of the Butler Affidavit, Mr Butler states that at no time was he offered any training with respect to his position of Vendor Manager as suggested by the public sector guidelines for restructures. (b) At paragraph 30 of the Butler Affidavit, Mr Butler states that on or around 9 September 2012, the then director of ITSB, Mr Geoff Fuggle (Mr Fuggle)suddenly resigned and when Mr Butler returned to the office he noticed a number of security bins outside of Mr Fuggle's office into which had been placed all the files from Mr Fuggle's office. Mr Butler alleges that in these files were minutes and documents relating to his exemplary work performance and flexible work arrangements. (c) At paragraph 38 of the Butler Affidavit, Mr Butler alleges that he had been the subject of harassment and retribution by his manager, Mr Don Moir (Mr Moir) and at paragraphs 140 and 213 that because his relationship with Mr Moir had "soured" the secondary employment document was "forced upon him". (d) At paragraph 146, Mr Butler provides evidence that Ms Janine Treacy had reminded PSA delegates that a $20 cap per month for mobile phone usage had been implemented and at paragraph 168 that employees were allowed 20 free personal calls of any duration and at some stage $20 worth of calls per month. 61Mr Watson's evidence is that he did not have the benefit of this material because Mr Butler chose not to make it available to him. This contention is successfully challenged. 62The evidence is that Mr Butler was co-operative with the entire process, even though it was unfairly slanted against him. Mr Butler did not deliberately withhold any information. 63Mr Watson confirmed that he made no enquiry or request to examine Mr Butler's personnel file or his training records in making his decision. 64It was Mr Watson's position that he was concerned with issues of conduct and did not concern himself with the issue of training. 65The sense of Mr Watson's evidence is that a public servant should not require training to know right from wrong and understand the obligation to refuse to comply with a direction that was inappropriate. 66If there is an area open to criticism it is a failure by the decision maker to undertake any independent enquiry to test the Madden Report before acting upon it. 67Mr Watson put that he considered the obligations of public sector employment in the following terms (exhibit 22 paras 35, 36): 35. New South Wales public servants work in an environment of high accountability for the responsibilities placed upon them. The community can rightly expect that public servants, during the course of their employment, will act in a way which is consistent with the values of the NSW public service, which are integrity, trust, service and accountability. At WorkCover and indeed the SRWSD, we generally feel that the level of responsibility and values that we have to uphold and our accountability for the effective and efficient use of resources provided to us is greater than the general public service because of our role as a regulator. This higher calling extends beyond our field staff in the inspectorate and extends to all employees employed by WorkCover and the SRWSD. 36. In considering all the evidence before me as the decision maker in this matter, I formed the view that the work practices and approach taken by Mr Butler falls a long way short of the level of accountability that is rightly expect of a New South Wales public servant." 68In cross examination Mr Watson put that where Mr Butler had been led into error by his manager or superior officers, he held a personal obligation to go over their heads and report them for failing to comply; and that it was Mr Butler's responsibility to ensure that the officer giving him direction held appropriate delegated authority to do so and that this could not be assessed from the position held. 69It is appropriate to note here the material aspects of the WorkCover Code of Conduct Internal Policy, which is contained in the affidavit of Mr Devine (exhibit 16 at tab 14). 70The Code of Conduct is a comprehensive document of 23 closely typed pages. The copy tendered is TRIM document number D06/092043 effective May 2006 with review due in May 2009. 71The purpose of the Code is stated on pages 2 and 6 in the following terms: Policy Statement WorkCover is part of the NSW Public Service, and public employment carries with it an obligation to the community to conduct our business professionally, efficiently, impartially and with integrity. The purpose of this Code is to set out WorkCover's policy on the standard of behaviour, values and principles that are expected from everyone employed by WorkCover including contractors, agency and temporary staff. It is designed to assist you to make ethical and responsible decisions and is the foundation upon which we conduct our activities. ... ... Chief Executive Officer's Message WorkCover is part of the NSW Public Service, and public employment carries with it an obligation to the community to conduct our business professionally, efficiently, impartially and with integrity. The purpose of this Code is to set out WorkCover's Policy on the standard of behaviour, values and principles that are expected from everyone employed by WorkCover including contractors, agency and temporary staff. It is designed to assist you to make ethical and responsible decisions and is the foundation upon which we conduct our activities. WorkCover is committed to complying with New South Wales Government legislation, policies and directives, to promote a culture of fair and ethical behaviour and to encourage the reporting of corrupt practices and breaches of the law and other matters which be detrimental to services provided by WorkCover and its reputation. The provision of a high level of customer service that maintains public trust and confidence is a fundamental principle of WorkCover. All staff will be provided with a copy of the Code of Conduct and training in relation to the Code and corruption prevention. Managers must ensure that all staff are released to attend the training sessions. Managers who are engaging the services or contractors, consultants and agency staff to perform work on behalf of WorkCover must also ensure that they are issued with a copy of this Code. Engagement contracts must specify that these groups be subject to the standards of behaviour included in the Code. If you are unsure of your obligations under the Code please discuss the issue with your supervisor, senior manager or by consultation with the Employment Relations Unit or the Internal Audit Unit. 72The Code further states inter alia: 1. Our Values and Principles The Code of Conduct has been developed in accordance with general principles of ethical and responsible decision-making and embodies the following values: Respect for the law and the system of government. Respect for people. Integrity, accountability and diligence. Efficiency. Customer Service. Leadership. Principles of personal and professional behaviour The community of New South Wales is entitled to expect that WorkCover conduct its business with efficiency, economy, fairness, impartiality and integrity. To meet this expectation, all WorkCover employees need to abide by the following principles and standards of professional behaviour when doing their work. ... ... Respect for people Employees are to treat members of the public and their colleagues in an hones and fair manner and with professionalism, courtesy and sensitivity. They should respect the rights, entitlements, and obligations of all members of the community and ensure appropriate access and equity to all WorkCover services. Staff need to show appropriate respect to people from culturally and linguistically diverse backgrounds and people with special needs. Integrity and public interest Employees are to carry out their duties responsibly, ethically, safely and in a non-discriminatory manner. Employees are to promote confidence in the integrity of WorkCover and always act in the public interest and not in their own private interest. The official powers that are entrusted to you by WorkCover cannot be used for personal advantage. Employees should also ensure that their decisions and actions are reasonable, fair and appropriate to the circumstances, based on a consideration of all the relevant facts and supported by adequate and approved records. You must make your decisions and perform your duties so that you do not favour anyone or discriminate against anyone. ... ... Economy and efficiency Employees should keep up to date with advances and changes in their area of expertise, and always look to improve performance and to achieve high standards. A Guide to Ethical Decision Making To assist in fostering a climate of ethical awareness, conduct and decision-making in WorkCover, employees may find it useful to refer or to consider, either by themselves or with others the following points: Is the decision or conduct lawful? Is the decision or conduct consistent with government policy and in line with WorkCover's corporate goals, values, policies, procedure and the Code of Conduct? What will the outcome be for; work colleagues; the public; for WorkCover; for myself; and other parties? Will the outcome of this conduct or decision raise a conflict of interest or lead to private gain at public expense? Can the decision or conduct be justified in terms of public interest and would it withstand public scrutiny? If any of these questions raise doubts as to the appropriateness of the decision or conduct then you should discuss the matter with your supervisor, manager, the Director of Internal Audit or the Manager, Employment Relations Unit. 2. Bribes, gifts and benefits WorkCover employees should never expect to get anything extra for doing what they are paid to do. Also they should never seek or accept any payment, gift or benefit that is intended to or could be perceived to cause them to: * Act in a particular way (including making a particular decision), * Fail to act in a particular circumstance, or * Otherwise deviate from the proper exercise of their official duties. WorkCover employees should also take all reasonable steps to ensure that their immediate family members are not the recipients of gifts or benefits, which could give the appearance of an indirect attempt to secure the employees' influence or favour. A bribe is any offer of money or cash convertibles (eg cheques, vouchers), gifts or services which is offered to persuade a person to act other than according to their normal duties. The acceptance of a bribe is a criminal offence and will not be tolerated. An officer, who accepts a bribe may have the issue dealt with as a disciplinary matter, will be reported to the Independent Commission Against Corruption and may be referred to the NSW Police for charging under the Crimes Act. Gifts or benefits can include, but are not limited to, free (or less than market value) accommodation, entertainment (eg. tickets to major sporting events, concerts, etc), hospitality (eg. meals, alcohol, invitations to use a corporate box at a major event) or travel. The ICAC makes the point that in any business context, gifts and benefits are rarely offered for purely charitable or hospitable purposes. In cases where the gift or benefit has more than a nominal value, it is possible that it has been offered to create a sense of obligation and even an expectation that something will be given in return. Gifts and benefits of nominal value, received infrequently usually do not create a sense of obligation in the receiver that will influence, or appear to influence, the exercise of his or her public duty. Items of nominal value could include items such as pens, note pads, coffee mugs, morning tea, etc. These items which are offered on a "one-off" basis can still be accepted but must also be reported as gifts to the Director, Human Resources. Token items and promotional material that is supplied to all attendees at a professional conference can be accepted and need not be reported. WorkCover employees who are offered or are given a gift or benefit of more than nominal value should report the incident in writing to the Director, Human Resources via their supervisor. If you are in doubt as to whether or not it is appropriate to accept the gift, refer the offer to your supervisor, manager or the Director of Human Resources for consideration before the offer is accepted. WorkCover has also developed a "Gifts and Benefits Guideline" to assist employees in making decisions related to gifts and benefits. WorkCover staff dealing with, or having access to, sensitive investigations or commercially sensitive information, should be particularly alert to inappropriate attempts to influence them. ... .... Gifts and Benefits Register You must notify the Director, Human Resources Branch if you have received a gift or benefit, including a token gift. The Director will register the gift / benefit in the Gifts and Benefits Register, which is a file that is located in the Employment Relations Unit within Human Resources. The Director, Human Resources has the delegated responsibility to determine the most appropriate way to return or dispose of the gift / benefit. 3. Conflicts of Interest A conflict of interest is a situation where an employee could be influenced, or could be perceived to be influenced by, a personal interest in carrying out their public duty. A conflict of interest that affects the decision making process may amount to corrupt conduct. It must also be stressed that a personal interest may also include personal, professional or business interests of the individuals or groups with whom we associate. WorkCover staff have a public duty to the community to perform their duties in a fair and impartial way and as such, you must disclose any actual, perceived or potential conflict of interest situation. It is the responsibility of individual staff to be aware of possible conflicts of interest and to think about how a reasonable person might view the situation. Sometimes, a conflict may arise without anybody being at fault or may be unavoidable. Conflicts of interest cannot always by avoided or prohibited. Conflicts of interest need to be identified, disclosed and effectively managed. ... ... In your employment with WorkCover possible conflicts of interest situations could include: * Making a decision affecting a family member or friend * Awarding contracts, ordering goods or services from a person or organisation in which you, a friend or a member of your family has a financial interest * Any financial or personal interest that could directly or indirectly influence or compromise you in performing your duties * Personal beliefs or attitudes that influence the impartiality of advice given or the decision made * Disclosing sensitive or confidential information gained through your employment in WorkCover to another person or organisation * Secondary employment that compromises the integrity of you and WorkCover * Directorships of an organisation that has dealings with WorkCover or WorkCover's stakeholders * Abuse of position and / or powers * Serving as a member of a selection committee considering an application from a friend, relative or associate * Accepting gifts or benefits. THE ALLEGATIONS 73I now turn to each of the specific allegations of misconduct. Allegation 1 During January and February 2012, you failed to comply with the WorkCover Code of Conduct in that you misused your position as Vendor Manager, IT Contracts and Vendor Management Team -Information Technology Services Branch (ITSB) by seeking to procure IT equipment at a discounted commercial rate for personal use and/or associated with your role in the Shared Parenting Council of Australia (SPCA). 74It is not disputed that in early January 2012 Mr Butler, whilst on annual leave and in his voluntary capacity with the SPCA, accessed the website of a company identified as Palo Alto Networks to enquire about some innovative firewall software being sold by that company. Mr Butler's evidence is that he had read of the software in a technical review. 75Mr Butler deposed that on 10 January 2012 he accessed the Palo Alto website and downloaded the operating manual for the PA 200 model. On 16 January 2012 he received an unsolicited email from a Mr Ed Sawkins, the Regional Sales Manager for Palo Alto, who appeared to be in America at the time. Mr Sawkins offered to set up a demonstration. 76Mr Butler responded to this email from his home using his WorkCover issued Blackberry, but leaving off the signature block which identified his position in WorkCover. He accepts that it was a mistake to use the Blackberry and that he should have used his own private mobile phone, however, it was 11.46 pm and he did not carefully consider the matter and used the device closest to hand. 77Mr Butler deposed that he made it clear to Palo Alto that: (a) he wanted a rack mount unit for a small not for profit organisation; (b) SPCA received a little government funding each year; (c) he would evaluate the unit for SPCA's other operations. 78Mr Butler deposed that at no time did he refer to the unit having a potential for wider use within WorkCover. 79At the recommendation of Mr Sawkins the product was reviewed by Mr Butler with the assistance of two engineers, then employed by WorkCover who had done work with SPCA. This took place in a web based meeting where the vendor can demonstrate the product (referred to as a "gotomeeting"). 80Mr Sawkins arranged for a local company identified as Davicom to supply a demonstration unit. This unit was evaluated and found unsuitable for the SPCA's purposes and was returned. 81Mr Butler accepted that he enquired about a discount should the SPCA purchase the item, vigorously denying that he sought any personal gain. 82The evidence is that neither Palo Alto nor Davicom provided any services to WorkCover at the time, nor could they as they were not on the NSW Contractor Panel to supply services to WorkCover. 83Mr Butler deposed that he never mentioned WorkCover to Mr Sawkins or Mr Davies, the principal of Davicom, and that both Messrs Sawkins and Davies had confirmed this to the investigator. 84Mr Butler's evidence is that, had the equipment worked as he anticipated, he would have referred it to WorkCover for its consideration and in fact would have provided a report to the Firewall Manager SSU within WorkCover as he had done on a number of occasions. In this case the existing WorkCover firewall was subject to a software modification which did the same job and the consideration went no further. 85Mr Butler deposed that he never stood to benefit from the enquiry and that he could not have brought the item through WorkCover as he held no authority to purchase. 86Mr Butler conceded that he used his WorkCover Blackberry to send three messages to Mr Sawkins and one to Mr Davies which identified him as a WorkCover employee. 87Mr Butler accepts that this was a mistake and that he should have used his personal email address, putting that he simply picked up the wrong device. 88It was put to Mr Butler that his conduct was inconsistent with the policy in respect to gifts and benefits and that his dealings with Palo Alto could be seen to create a sense of obligation. 89In cross examination Mr Butler responded that he was conscious of the Code of Conduct but concluded it did not place any obligation on him in this instance as at no time did he solicit a personal gift or benefit, nor could the transaction create a sense of obligation and as such his conduct was not inconsistent with the Code. As noted earlier, Palo Alto and Davicom could not supply WorkCover and Mr Butler could not purchase on behalf of WorkCover. 90Mr Butler refuted the proposition that he sought to obtain a personal benefit and that there was no benefit to the SPCA as the unit was tested and sent back. Conclusion Re Allegation 1 91Mr Butler's request of the supplier to obtain the best deal for the SPCA is a normal and unremarkable commercial practice. 92There is no evidence to support a finding that Mr Butler acted in any way to bring WorkCover into disrepute, create any sense of obligation, or to obtain personal financial or other gain. 93This allegation is without substance and provides no basis for termination of employment. Allegation 2 During October 2011, you failed to comply with the WorkCover Code of Conduct in that you misused your position as Vendor Manager, IT Contracts and Vendor Management Team - ITSB by seeking to procure gifts in the form of T-shirts from a company Dimension Data which at the time was in a contractual arrangement as a supplier with WorkCover. 94The evidence in respect to this allegation is that as part of the roll out of Windows 7, a Microsoft software product, Mr Butler was asked by Ms Treacy, Manager Service Support Unit, to obtain some t-shirts. This request was made by email dated 15 September 2011 (exhibit 2 at attach F) which states: "Hi Wayne, As you are aware we are getting close to our windows 7 deployment and we have decided that it would be good if the service desk staff had windows 7 t'shirts on post deployment when they are floor walking to resolve any issues. Do you think you could make some enquiries with your contacts at Microsoft and see whether they could provide some t'shirts and banners for launch day? Even if we could just borrow some and we would return them after we use them that would be ok." 95On 21 October 2011 Mr Don Moir, Acting Manager Quality Services Unit, expressed an interest by email to Mr Butler (exhibit 2 at attach G) which states: "W Janine was asking about some arrangements you were making for Microsoft shirts...? And I wouldn't mind knowing what's planned also...! Cheers D" 96On 26 October 2011 Mr Butler was put under some pressure by Mr Tim Kelly who emailed him in the following terms (exhibit 2 at attach F1): "Jon just said he gave in to your request but it comes with a big BUT ... pun intended. We want those windows 7 shirts by Friday next week or no Win7. Sorry Wayne but business is business mate. Looking forward to those cool Microsoft Shirts. Cheers. Tim K. 97Mr Butler made efforts to obtain the t-shirts from Microsoft and an associated company. 98It was put to Mr Butler that the t-shirts he sought were not part of any contractual obligation to WorkCover. He disputed this, deposing that the investigator looked at the wrong contract with Dimension Data (exhibit 2 at para 95-96). 99Mr Butler deposed that he had made it a point never to fail on any task assigned to him and did not consider it a big issue to ask Microsoft to supply a few t-shirts for the Windows 7 rollout, considering WorkCover spent over $1 million per year on Microsoft products through Dimension Data, as well as $275,000 on Microsoft support and technology services (exhibit 2 para 98). 100Mr Butler was further critical of the investigator, putting that (exhibit 2 para 116): "The investigator has also conveniently failed to discuss evidence given by a number of staff, Mr Moir in particular, that the Director had a "stash of stuff" that was handed out at Branch Meetings and these items were certainly not recorded in the Register." 101Mr Butler's evidence is that it is usual industry practice for marketing materials from all of the large companies to be provided free of charge. 102The t-shirts were made available to WorkCover for the Windows 7 roll out. 103Mr Butler never saw the t-shirts, having acted on behalf of those who requested he use his contacts in the industry. 104Mr Butler's actions were said to offend the WorkCover Gifts and Benefits Guidelines, and further that Mr Butler failed in his duty by not recording acquisition of the t-shirts, which had a nominal value of $4 each, in the Gifts and Benefits Register. 105It was put to Mr Butler that he would have complied if he had referred the matter to Ms Treacy. His evidence is that he conferred with her and they concluded that the t-shirts were not a gift but marketing material. This evidence is not refuted. 106In cross examination Mr Watson confirmed that he was aware of Ms Treacy and Mr Moir's involvement in the acquisition of the t-shirts, however, Mr Watson's delegation was limited to dealing with the charges against Mr Butler. 107Mr Watson had no knowledge of any disciplinary action taken in respect to Ms Treacy or Mr Moir, deposing that he considered it inappropriate to enquire about any other disciplinary action whilst he was dealing with Mr Butler. 108When questioned by Mr Reitano as to the role and culpability, if any, of Ms Treacy and Mr Moir, Mr Watson responded that he did not have the full facts on that matter; adding that if Mr Butler had issues with his instructions he should have taken that up with his supervisors. Conclusion re Allegation 2 109I accept Mr Reitano's submission that Mr Butler did not act for any personal benefit but fulfilled a request by other officers; and that those who requested the t-shirts and those that received them held the responsibility to record them in the Gifts and Benefits Register should that apply, not Mr Butler. 110I note that to the extent such a request offended the Code of Conduct and Ethics Policy, the fault does not lay with Mr Butler. To the extent it is put that the requests and receipt of the t-shirts were improper and Mr Butler should have refused the request by his manager to obtain them, the fault does not lay with him alone. 111Mr Moir could have advised Mr Butler not to proceed while Mr Kelly's email seems to suggest some internal deal on another matter and placed what appears undue and inappropriate pressure on Mr Butler that the roll out of the Windows 7 software would be compromised or cancelled if he failed to obtain the t-shirts. 112The reference to "BUT - pun intended" is of greater offence to the policy which requires employees to treat each other with dignity and respect. 113The conduct of Mr Butler in regard to this allegation does not support any consideration of termination of employment and to rely upon it is harsh, unreasonable and unjust. Allegation 3 At various times between January 2011 and February 2012, you misused your WorkCover mobile telephone 114The substance of this allegation is that Mr Butler did not account for personal use of the mobile phone provided to him by the Respondent, and used the phone in his "secondary employment" (his voluntary role with SPCA) contrary to policy. 115Mr Butler held two mobile phones. The number ending in 677 is one that Mr Butler held personally prior to his employment with the Respondent. This number was assigned to his WorkCover Blackberry with the approval of the Respondent; the other mobile phone, the number for which was not disclosed, was provided by the SPCA around October 2011 to make calls on its behalf. 116Mr Butler's evidence is that prior to the introduction of the Mobile Telephone Electronic Billing System (MOTEB) in 2006, there was very little in the way of policy. 117Mr Butler deposed that on his engagement by WorkCover he was given a mobile phone and advised by the Respondent that he could use it for personal calls without restrictions. 118Mr Butler's evidence is that the provision of a mobile phone and personal use of it was to compensate for a reduced salary resulting from his move from private enterprise to the public sector. 119Mr Butler's evidence is that he was never asked to pay for private use of the mobile phone. 120The introduction of MOTEB was subject to technical difficulties, industrial bans and policy development issues. 121Mr Butler put that personal use was first defined as 20 calls per month, then twenty dollars worth of calls per month. The Telephone Policy 122The Respondent's policy document Acceptable Usage of Electronic Communication Devices and Services Policy (exhibit 2 at attach P) includes (at p2 of 9) a table of Document Change Control which details review of the policy from 13 November 2006 to 8 December 2009. Users of this policy document are told (at p3 of 9) that the policy should be read in conjunction with eleven other separate policy documents. 123The policy states at item 3: ...... Reasonable personal use of the communications devices and services is a privilege and as such needs to be balanced in terms of the Government's commitment to the development of a responsive and flexible public sector and operational needs. 124Item 4 of the policy prescribes: 4. REASONABLE PERSONAL USE In line with the Premier's Department Guidelines, it is acknowledged that reasonable personal use of WorkCover's communications devices and services will at times be required and accordingly WorkCover will meet the costs of this use. Reasonable personal used is defined as personal use that is kept to a reasonable limit. To assist staff members when making their decision as to this reasonable personal use, and for the information of supervisors, the following is provided as a guide. Without limiting the scope of circumstances, giving rise to reasonable personal use, use of these communications devices and services should be limited to circumstances that deal with immediate carer responsibilities, advising family of short notice changes to work arrangements or other urgent, emergency or personally important private situations, and for accredited union delegates to undertake union business concerning WorkCover members. Accepting the cost of this reasonable personal use recognises WorkCover's commitment to the development of a responsive and flexible organisation where there is recognition of family and community responsibilities and their impact on work. Reasonable personal use of communication devices and services does not extend to intentionally downloading unauthorised software, lengthy files containing picture images, live pictures or graphics. This includes computer games, music files and the accessing of radio or television stations broadcasting via the internet. Such files should not be emailed to others. 125Reasonable personal use is defined (at item 4) as: "personal use that is kept to a reasonable limit". 126This definition of reasonable personal use is also found in the CASD IT Policy - Acceptable Usage of Electronic Communication Devices and Services effective from June 2011 (exhibit 2 at attach P). 127The definition is extended in the CASD Policy promulgated in 2012, titled CASD Mobile Phone Policy, Process and Procedure Document v.1.0 (ibid). 128This policy document defines reasonable personal use and other personal use in the following terms: 2.2 Reasonable personal use In line with the Premier's Department guidelines, it is acknowledged that reasonable personal use will at times be required and accordingly the CASD Agencies will meet the cost of these calls or text messages. Reasonable personal use is defined as personal use that is kept to a reasonable limit. This covers both text messages and calls of a short duration, meaning no more than a few minutes. There is no upper limit to the number of these text messages or calls made. To assist staff members when making their decision as to this reasonable personal use, and for the information of supervisors, the following is provided as a guide. Without limiting the scope of circumstances giving rise to reasonable personal use, calls or text messages would be expected to involve circumstances such as those that deal with immediate family and community carer responsibilities, advising family or short notice changes to work arrangements or other urgent, emergency or personally important private situations, and for accredited union delegates to undertake union business concerning members. Accepting the cost of this reasonable person use recognises the Agency's commitment to the development of a responsive and flexible organisation where there is recognition of family and community responsibilities and their impact on work. This reasonable personal use is based on an honour system where the staff member applies their discretion to decide which of these reasonable calls will remain as part of the business calls to be paid for by the respective Agency. There is no maximum limit applying to the number of calls made or messages sent within the 'reasonable personal use' category. If in doubt about any particular call or message, staff are encouraged to consult with their supervisor. Reimbursement of personal calls is considered unnecessary where the total of the personal calls made in a billing period comes to twenty dollars or less. 2.3 Other personal use Beyond 'reasonable personal use', staff members are permitted to use the mobile phone for their personal use. There is no limit on this amount of personal use. The staff member will be accountable for payment of the amount due on these calls and text messages. To do this the staff member will need to identify these calls and text messages above and beyond the 'reasonable personal use' using the Telecontrol Online system (managed by external providers Housley Consulting) and arrange for the amount due to be paid through their appropriate office and/or Finance. 129The policy specifies the procedure for review of monthly accounts in order to validate mobile phone calls that have been made and to arrange payment of private calls in excess of reasonable personal use. Item 4 states inter alia: You will receive an email notification that a monthly mobile phone statement is ready to be processed. The email will contain a link that you can click on to start the TeleControl application. The TeleControl application will launch in Internet Explorer. The home page will show mobile phones currently allocated to you. In most cases there will only be one phone. 130Mr Butler deposed that from mid to late 2010 the ITSB decided to trial a new system, identified as "Dual Numbers on SIM", for the user to pay for private calls that fell outside the reasonable use policy. 131This process involved the user pushing the hash key when making a call that the user considered was outside the reasonable use policy, resulting in the cost of the call so identified being charged to the user's personal account. Mr Butler deposed that such accounts were sent directly to him which he paid. 132Attached to Mr Butler's statement (exhibit 2 at attach M) are Telstra accounts addressed to "WorkCover NSW, Attention W Butler" at a PO Box in Gosford. 133Mr Butler's evidence is that he paid for all personal calls by using the hash key and prior to that by cheque or cash; the receipts for which were in a manila folder held in a drawer in his desk at WorkCover which he has not been able to access since the termination of his employment. 134A second aspect of the allegation of misuse of Mr Butler's mobile phone is that he used the WorkCover phone and telephone number in his secondary employment with the SPCA. 135In cross examination Mr Devine conceded that he was aware of the hash tag facility to identify personal calls and accepted that the policy guidelines placed the responsibility upon individual officers to identify personal calls for payment, counselling that if in doubt whether a call is reasonable personal use, it should be discussed with a supervisor. 136Mr Devine accepted that when using the hash tag system, if an employee had no doubt that a call fell into the reasonable personal use category and did not use the hash tag to cause personal payment, then the employee had met his obligation and there was nothing more for the employee to do. Similarly when a call was hash tagged, resulting in personal payment, that was the end of the matter. 137Mr Devine put that further audit procedures are to be found on the WorkCover Intranet. These procedures were not tendered in these proceedings as, on Mr Devine's testimony, his concern was reasonable personal use. 138In cross examination Mr Watson contended that the reasonable personal use of mobile phones was a policy he participated in negotiating with the PSA and that it was put in place to allow officers to call home if delayed or dispatched unexpectedly to a workplace in emergency circumstances. 139Mr Watson accepted that the policy as written does not state this, putting no hard and fast rules but affording discretion to the officer. 140Mr Watson conceded that when making his decision on Mr Butler's mobile phone use he did not have any of Mr Butler's phone bills for the relevant period and was therefore unable to quantify any personal use. 141Mr Watson deposed that he read all the material before him, including the six volume report of the investigator. The investigator did not obtain phone bills for the relevant period during the course of the investigation, which casts further doubt as to the competency and conduct of the investigation. 142Mr Watson conceded that there is no evidence that Mr Butler made any personal phone calls over and above the reasonable personal use policy. 143This evidence sits uncomfortably with that given by Mr Devine that most telephone bills were emailed to Mr Butler, but not so with Mr Butler's evidence that he was never required to review a phone bill. Conclusion re Allegation 3 144I propose to deal with the issue of mobile phone use in respect to secondary employment in the consideration of allegation 4. 145There is no evidence to support a finding that Mr Butler was in breach of the reasonable personal use condition contained in the telephone policy. 146The Respondent did not tender even one of the telephone bills for Mr Butler's mobile phone to demonstrate that there was any personal use not paid for by Mr Butler which offended, let alone abused, the policy. 147There is no substance to the allegation and accordingly it cannot form the basis of any disciplinary action. Allegation 4 During 2011, you engaged in unauthorised secondary employment contrary to the Code of Conduct. 148It is put that Mr Butler was in breach of the Code of Conduct due to his involvement with the SPCA and with a family company identified as Diversitech. 149It is not disputed that Mr Butler was a volunteer and received no payment, however, it is put that he received some benefit in kind, being access to a computer, the internet, law books, and office facilities. 150Mr Butler refutes these assertions, putting that anything provided to him by the SPCA was for work on its behalf, not as a benefit to him. 151The relevant aspect of the WorkCover Policy is contained in Mr Devine's affidavit (exhibit 16 at attach 14): 4. Secondary Employment - Other Paid Work WorkCover staff may for a variety of reasons seek to engage in other paid work, including participation in a family company or undertaking party plan sales. Before taking a second job or engaging in private work, you must have approval from the Director, Human Resources following endorsement from your Manager. Please note that there are several categories of exemptions referenced in Section 5.9.6 of the Personnel Handbook. These include an employee writing an article or book not related to or interfering with their official duties. As WorkCover has a regulatory and inspectorial role applications for secondary employment that involves that type of work will generally not be approved. In all cases, where approval is granted, your first obligation is to WorkCover and you will be asked to give up the other paid work if it interferes with your job with WorkCover. Approvals for secondary employment prohibit staff from using the workplace as a market for promoting sales or services. If in any doubt you should speak with your manager, the Internal Audit Unit or the Employment Relations Unit to clarify any of the above requirements. New and existing employees who are already engaged in secondary employment and who do not have a current approval should submit an application as soon as possible. Casual and part time staff are not required to obtain approval for other paid work during the period that the person is not required to discharge duties in WorkCover. This is on the proviso that the discharge of their WorkCover duties is not adversely affected and there is no conflict of interest. These staff are still bound by the WorkCover Code of Conduct. Approvals are valid for 12 months, and you must reapply after 12 months. Approval may cease if any details on the application change, your circumstances change, or you are transferred to other duties or another work location within WorkCover. You must seek the approval of your Manager and the Director, Human Resources if the conditions of your secondary employment change. 152Mr Butler contended that his work with the SPCA did not fall within the policy as it was not "paid" work, comparing his involvement with that of other (unnamed) WorkCover employees who volunteered with such organisations as State Emergency Services, the Rural Fire Brigade and Amnesty International. 153Mr Devine's evidence is that secondary employment covered all paid and unpaid effort. A draft Secondary Employment Policy (exhibit 25), said to clarify these issues, states: 'Secondary employment' (or having a second job) means other paid work and can include activities such as lecturing at TAFE, tutoring, party plans or participating in a family company. This policy also contains components relating to volunteering and other forms of unpaid work. The inclusion of volunteering and unpaid work aspects in this policy recognise that whilst you may not be remunerated financially for your time and assistance, you may be receiving benefits in other forms to undertake this secondary activity. 154Mr Devine would not accept the proposition advanced by Mr Reitano that this draft policy was in response to and as a cure for Mr Butler's circumstances. 155Mr Butler conceded to a request by WorkCover to make an application for approval to undertake secondary employment on 2 October 2011, which was approved on 18 October 2011 with effect to 2 October 2012 (exhibit 16 attach 4) 156The application is in the standard form and carries an agreement on behalf of the applicant to comply with the requirement (among others) that: "It will not involve information or any resources which are obtained from WorkCover". 157It is put against Mr Butler that, at least from the date of this approval, he could not use his WorkCover Blackberry or mobile phone number to make or receive calls on behalf of SPCA and to do so amounted to misconduct. 158Mr Butler held the position that he could not control who called or sent text messages to him or when this occurred, however, he actively minimised any contact in working hours and insured that WorkCover was not billed for any outgoing communications. 159In cross examination Mr Watson responded that the issue with Mr Butler's involvement with the SPCA required approval to actively manage potential conflicts of interest, that he conducted some of those activities in work time and possibly received a benefit. 160Mr Watson conceded that WorkCover's activities did not extend to family law, however, he was concerned that Mr Butler may be distracted from his duties by the SPCA role. Mr Watson put that he was not personally aware that Mr Butler volunteered for the SCPA but accepted that this involvement was widely known in WorkCover. 161Mr Watson referred to Mr Butler's assistance and or advice to WorkCover employees, which he discovered from Mr Butler, as evidence of inappropriate conduct of SPCA activities in working time. 162Mr Watson was not able to quantify this nor did he have any knowledge or evidence that this assistance and advice had been provided to WorkCover staff in lunchbreaks or other unpaid time. 163The only information Mr Watson had was that provided by Mr Butler. 164Diversitech Products Pty Ltd is a family company owned and operated by Mr Butler's father who resides in New Zealand. Mr Butler's name appears on the company letterhead as a director, as does his mobile phone number ending in 677. 165It is put against Mr Butler that he was an active participant in the business of Diversitech and failed to obtain approval for that secondary appointment. 166Mr Phillips tendered a document which appears to be a tax invoice dated 10 July 2011 from Diversitech issued to a company in Thailand (exhibit 15). 167Mr Butler's evidence is that he ceased to be a director or have any involvement in the company other than financially supporting his father by having his WorkCover salary paid to the company for a period of time. 168The document (exhibit 15) was produced by Mr Butler under subpoena which called for material in respect to his activities with the SPCA. On the reverse of exhibit 15 are handwritten notations by Mr Butler concerning SPCA matters which are confidential so far as these proceedings are concerned. 169Mr Butler put that the document was never sent by Diversitech as it was part of a pile of scrap paper at his residence which he apparently used as note paper. 170Mr Butler put that the company letterheads were many years old and that it was no simple matter to print new ones. 171Mr Devine acknowledged that Ms Klaassen advised Mr Butler to submit an application for secondary employment in respect to the SPCA to be "safe", which Mr Butler accommodated. 172Mr Devine agreed that respect for the individual, courtesy and sensitivity are fundamental to each case. 173Mr Devine defended the decision not to raise with Mr Butler the matter of his WorkCover phone number appearing on the SPCA website because he was being investigated. 174Mr Devine conceded that to tell Mr Butler would have been consistent with fairness, but he made a judgment call in the interests of WorkCover. These interests are not identified. 175This evidence must be considered most disingenuous as the decision to conduct a preliminary investigation into Mr Butler was made and actioned on the same day the approval for secondary employment was made and his phone number identified on the SPCA site by Ms Lecky. 176These circumstances lead to a conclusion of malicious intent against Mr Butler. 177Mr Devine's evidence is that Mr Butler was afforded training in the Code of Conduct on appointment in 2000/2001 and some further training in 2011/2012. Mr Devine relied upon a training record for this evidence, which he deposed he discovered on Sunday 14 April 2013 when preparing himself for these proceedings. The training record (exhibit 17) details the course and Mr Butler's name, however the duration of the course is either zero or left blank. It is noted that the record is printed on scrap paper and markings on the reverse do not constitute part of the tender. Mr Devine would not accept that a zero notation meant that the course had not been done. His evidence is that he made no further enquiries of Mr Butler or anyone else in WorkCover to establish that Mr Butler had in fact undertaken the training. 178Mr Devine's evidence is that he had no knowledge of whether Mr Butler actually completed the Code of Conduct training or was pulled out of it to attend to operational issues, as deposed by Mr Butler. 179Mr Reitano questioned Mr Devine on the question of whether employment, and by reference to that term secondary employment, meant paid employment. Mr Devine's testimony is that payment for secondary employment need not be in money or in the form of wages or salary, suggesting by example that payment in gold would be a form of payment that was not money, wages or remuneration, to illustrate that any benefit from physical and intellectual effort would constitute secondary employment for the purpose of the WorkCover Code of Conduct. 180Mr Devine was obliged to concede that under the wording of the Code of Conduct, reimbursement of expenses incurred as a volunteer would not constitute payment and thus would not require an approval of secondary employment. 181Mr Devine's evidence is that WorkCover training in this aspect of the secondary employment policy changed some six months prior to these proceedings (around November 2012) so that employees are now informed when undertaking training that re-imbursement of expenses when volunteering brings the volunteer actively within the policy, requiring an approval for secondary employment. Mr Devine advised that a revised policy was issued. 182Mr Devine denied that the policy revision specifying volunteering being regarded as unpaid work was tailored with this case in mind. 183Mr Devine's evidence is that Mr Butler's secondary employment with Diversitech is no part of the allegations made against him, nor is it suggested that there is a conflict of interest arising from any shareholding or other association with Diversitech by Mr Butler. 184Mr Devine put that the Diversitech material was included because it went to the nature of the allegation of secondary employment. 185Mr Watson's evidence is that Mr Butler was a Grade 11/12 public servant, which he deposed was the most senior position before moving to "Senior Public Servant". 186Mr Watson deposed that the grade occupied by Mr Butler afforded a great deal of independence, and carried with it a need to understand the public sector environment and how to conduct oneself in an ethical and honest way; an expectation that an occupant would apprise themselves of the procedures and policies that applied to their position and those who reported to them; and have an understanding of the public sector probity issues associated with the expenditure of funds and negotiation of contracts. 187Mr Watson deposed that he is a voluntary member of a school board and, while he does not receive any remuneration, he had discussed the potential for conflict of interest with his supervisor resulting in an application for approval of secondary employment. Mr Watson excludes himself from any meeting of the board that considers matters related to workers compensation. Conclusion re Allegation 4 188There is no substance to the allegation that Mr Butler engaged in secondary employment or that he improperly used WorkCover resources in that employment. 189I conclude that the policy in place did not require approval of secondary employment for unpaid, voluntary involvement in community organisations. 190Mr Butler's application for approval was a sham insisted upon by management which does not demonstrate the scope of the policy as contended, but more so demonstrates the willingness of Mr Butler to co-operate with his employer. 191WorkCover's reliance upon the conditions attributed to the approval for secondary employment as grounds for termination of Mr Butler's employment offends the notions of integrity and fairness. 192As discussed in respect to the telephone policy above, Mr Butler was afforded full private use of the WorkCover mobile phone and required to pay for calls above reasonable personal use, which he did. The WorkCover number had been on the SPCA site for some time, which I find does not offend any policy or fall outside the bounds of personal use. 193Mr Butler's activities with the SPCA were sufficiently known within WorkCover and were not subject to any criticism involving the principle of condonement. 194The evidence demonstrates that Mr Butler had no active involvement in Diversitech. 195These allegations and assertions further support a view of bias and malicious intent toward Mr Butler. 196There is no basis of fact in this allegation to support termination of employment. Allegation 5 During 2011and 2012, you failed to maintain information security in relation to WorkCover documents and records by forwarding them to other un-secure commercial sites. 197The substance of this allegation is that Mr Butler forwarded WorkCover emails to his home address. 198Mr Butler deposed that he was never informed that the practice of sending emails to himself was forbidden and was not aware that it met complaint with any WorkCover policy. 199Mr Butler deposed that he sent emails to himself at a secure private email address, only available to himself, held at a secured ISP commercial site in a secured data centre; and that access to the email address was only available via the secured Hypertext Transfer Protocol (HTTP). 200Mr Butler's evidence is that it was his practice to send documents to his private email address as he worked on projects at home at night, putting that it was more effective to select the few files needed and email them to himself rather than shutting down a computer and taking it home. 201Mr Butler's evidence is that he did have a WorkCover laptop but it did not have remote direct access installed. 202Mr Butler put an alternative was to load the files needed on a USB drive which he regarded as problematic as it could be lost. 203Mr Butler's evidence is that Mr Moir and Mr McNulty were aware that he sent emails home and they endorsed this practice, both in approval of his actions and participation themselves. 204In his investigation findings (exhibit 22 at tab 11) Mr Watson expressed concern that there was no evidence of whether Mr Butler kept copies of WorkCover material and he suggested action to ensure no copies were kept. Mr Watson concluded that there had been a breach of policy which should attract a reprimand. 205In cross examination Mr Watson confirmed that, standing alone, Mr Butler's practice of sending emails to himself at home for work purposes would attract only a reprimand. 206Mr Watson could not recall any submission from Mr Butler that he had adopted this practice because he did not have remote access to work emails via his WorkCover laptop. 207Mr Watson deposed that he has remote access as he is required to travel extensively. 208Mr Watson accepted that there is a distinction between not following procedure and conduct which is dishonest or corrupt, putting that the former can lead to the latter. 209In cross examination Mr Devine conceded that an obligation upon an employee not to send emails to their personal address is unable to be found in any policy or direction. Mr Devine's testimony is that there is no policy restriction on sending emails to oneself. 210In re-examination Mr Devine was taken to policies which he put talk only of security of information and materials and do not contain a specific prohibition from emailing oneself. Conclusion re Allegation 5 211It is a simple enough matter to ensure no copies were kept. I accept Mr Butler's evidence that he did not keep any copies. 212The practice of emailing files home to work on as a matter of operational convenience is, on the evidence, widely practiced and endorsed by management, and absent any policy prohibition. 213If WorkCover did not want this to occur it should have acted earlier in respect to all staff, not use the issue as an additional allegation to smear Mr Butler. 214There is no basis for disciplinary action of any kind against Mr Butler on this count. Allegation 6 During2011 and 2012, you failed to comply with policy and procedure in relation to work hours and flex policy by not submitting your completed flex sheet at the end of each period. Allegation 7 During 2011 and 2012,you failed to comply with the Code of Conduct and the need to carry out your duties responsibly and ethically by failing to accurately record your work hours in the correct manner. 215These two allegations, whilst made separately, relate to the operation of the work time reporting system including the flexitime process within WorkCover. 216The substance of these two allegations is that Mr Butler failed to comply with requirements to submit completed time sheets on a periodic basis. 217As the decision maker, Mr Watson's findings and conclusions on allegations 6 and 7 are recorded in the following terms (Exhibit 22 attach 11): Findings in relation to Allegations 6 &7: On the basis of the evidence provide in the investigator's report these allegations are sustained. It is important to note that the requirement to submit a flex sheet in a timely manner is Government policy and there are no exceptions to this requirement for a staff member of Mr Butler's grade. It would appear that Mr Butler understood this policy and that it applied to him. He argues that there were "mitigating circumstances" that precluding him form complying with the policy. He further argues that the "complexity in the leave" was an additional reason for him not being able to promptly submit flex sheets. The responsibility to submit flex sheets in compliance with the Government polices rests squarely with the employee in this case Mr Butler. The action, or lack thereof, of Mr Butler's supervisors and managers in not requesting submission of the flex sheets doesn't reduce his responsibility to submit the sheets in accordance with the policy in the first place. A consistent argument is put by Mr Butler and others is that he saved WorkCover many tens of thousands or indeed millions of dollars in the negotiations he undertook as part of his duties with WorkCover. In his view this should mitigate against any responsibility he had to work within the policies and procedures that applied to his employment in the NSW Public Service as a staff member of WorkCover NSW. In my view it does not. He was required to undertake his duties in compliance with the policies and procedures in compliance with the Code of Conduct and in an efficient and effective manner. I fail to understand that Mr Butler could have ever known how many hours he had worked in response to the Contact of Employment with WorkCover or indeed if he had any leave balances on which to justify absences from the workplace. The evidence is clear and confirmed by Mr Butler's own admissions that he has failed to submit a record of his working hours and leave absences in appropriate and accurate flex sheets. When sheet were submitted at the end of the 2011 the accuracy of the record submitted must be questioned given what appears to be an erratic work pattern and in Mr Butler's own words the "complexity in the leave". The investigator's report contains evidence making it clear that the Mr Butler did not separate the time he spent on the work he should have been performing in the course of his employment with WorkCover with those activities he conducted in unauthorised secondary employment. This view is also supported in the verbal submissions made to me on the 9th October 2012 where he made it clear that he considered that sitting in a University lecture could constitute work if he took or made work related telephone calls. Other records have Mr Butler at work when he was at University and visa versa. It is not possible to quantify the impact that such a view had on the leave applications or contracted hours and in turn the accuracy of the flex sheets belatedly submitted. One thing is clear that they are not be an accurate record of the hours worked or the location in which this work was carried out. The flex sheets are false and misleading and display an extremely casual attitude by Mr Butler to carrying out his duties responsibly and ethically. 218Mr Butler's evidence in respect to these allegations does not challenge Mr Watson's factual findings, only the conclusion. 219I agree with Mr Watson's findings that there is no warrant for departure from time and record keeping obligations on the basis of a personal view of the "importance and value of the work" held by Mr Butler. 220Mr Butler's evidence is that the work time reporting Flex Sheet Software System had serious limitations and could not accommodate the purchase of additional leave. His evidence is that, with approval of the then Director of Human Resources, Ms Moira Heath, and his manager, Mr McNulty, he purchased 20 days additional leave to pursue university studies. 221Mr Butler deposed that he purchased a day timer diary at his own expense to manually record his working time and leave. 222Mr Butler's evidence is that the Finance Branch incorrectly allocated five days of the 20 days purchased leave to days that he was actually working, putting that (exhibit 2 p 68): This was one reason that I could not complete my Flex sheets at the time, because once an issue delays a flex sheet you cannot enter current days' time". 223Mr Butler's evidence is that he rectified this by manual reconciliation, which he provided to Mr Moir. 224Mr Butler further deposed that changes to the Online Service Centre (OSC) initiated by the HR department in July 2010, which stopped the application and submission of retrospective leave requests older than 60 days, created further problems in recording his time worked and on leave. 225Mr Butler deposed that there was a delay of up to five weeks in approval of his flex sheets by his supervisor, and not once was he asked to work through and verify or explain those flex sheets; and that after he raised a grievance against Mr Moir on 10 February 2010, Mr Moir refused to approve any flex sheets at all. 226Mr Butler's evidence is (exhibit 2 at p71): 267. Whilst I did not complete a Flex sheet for each period, the Director of lTSB was aware of this situation as was my supervisor and others, and did not consider this to be a concern and it was never raised with me as an issue until after the Director resigned. 268. I recall that at one stage in mid-2011, when we advised we had insufficient time to complete Flex sheets, the response we received was to 'not worry about Flex sheets and worry about the CASD licensing issues and renewing the 140 plus contracts that were to be renewed'. 269. ITSB Management advised that the priority was to get the CASD merger cemented in place and cost savings made as directed. We were to ensure that we were appropriately licensed to avoid litigation by vendors (who were at that time commencing audits on other agencies)and to ensure that Projects could continue with adequate software procurements, for both development and licensed products, in all our main operational units. Flex sheets were clearly stated to be a low priority at that time. The ITSB Director was also aware that I had been working consistently significantly more than my contracted hours of 35 hours a week. 227The evidence is that Mr Butler was not the only employee of WorkCover in ITSB who was allowed to fall behind. Mr Butler identified in his statement of evidence (exhibit 2 at para 287) eleven other individuals who he put had flex sheet delays of significant periods, some in excess of his delay. Mr Butler put that over 40% of staff in ITSB were behind on flex sheets. 228The evidence is that when ultimately pressed by management all employees produced flex time sheets for the periods required and all were accepted except for Mr Butler's. 229Mr Devine accepted that there were others who were more delinquent than Mr Butler in submitting their time sheets. These officers ultimately submitted time sheets which were accepted and no disciplinary action was taken. Mr Devine deposed that Mr Butler's time sheets were not accepted as accurate, hence the disciplinary action. 230Mr Butler's evidence is that, having regard to the fact that flex sheets for 2011 were completed retrospectively, he was not surprised that some anomalies were identified, noting that every possible endeavour was made to ensure that the flex sheets were completed as accurately as possible. 231Mr Butler deposed that when retrospectively completing his flex sheets he continually erred on the side of caution and entered times he truthfully believed to be substantially less than he had actually worked. 232Mr Butler deposed that he and others were congratulated by Mr Moir on completion of the flex sheets and that his February flex sheet was lodged ahead of time. 233Mr Butler's evidence (exhibit 2 at para 301) is: 301. At no time was there any query or allegation made that I had short-changed WorkCover in terms of the hours I had worked. In fact, all the data showed that I had worked hundreds, if not thousands, of unpaid hours for the agency. At no stage, was it brought to my attention, until these allegations of misconduct were levelled against me, that my activities may not be supported by the agency. 234Mr Reitano put to Mr Watson in cross examination that Mr Butler was under direction from his managers to give priority to operational matters and not waste time on flex sheets, and that such direction was a mitigating factor in Mr Butler's conduct. 235Mr Watson responded that the managers were acting beyond their delegated authority in giving this direction, and that Mr Butler should have taken it up with their supervisors. 236Mr Watson acknowledged that Mr Butler had been given the direction to defer time sheets in favour of operational issues, putting that he should have sought the direction in writing from his managers, as he should and would have been aware of the obligation to submit time sheets as a basic requirement and based on his involvement in developing the computer based time keeping system. 237In response to Mr Reitano's proposition that acting professionally included obeying directions, Mr Watson put that all public servants are entitled and required to challenge any direction if it is thought that the decision is without authority. 238Mr Watson accepted that Mr Butler was of the view, albeit mistakenly, that Messrs Fuggle, McNulty and Moir had the authority to give the direction to defer time sheets. 239In cross examination Mr Devine put that two audits of flexi time were undertaken in early 2012. His evidence is that he looked at the TRIM file on or about 23 January 2012 to determine the level of compliance. Then in March 2012 HR business partners produced a list of people who appeared non compliant, colour coded with recommendations for disciplinary action. A version of this report was tendered by Mr Reitano (exhibit 24). 240Mr Devine acknowledged that there was a significant problem of non compliance in the ITSB which included a large number of employees. He accepted that by the time the audit was done in March 2012 Mr Butler had brought his flex sheets up to date, albeit by putting in multiple time sheets, as had others. 241Mr Butler had submitted time sheets to bring his records up to date without request and on Mr Devine's evidence, prior to the audit process. 242Mr Devine accepted that the colour coded disciplinary report did not recommend or suggest any disciplinary action against Mr Butler. 243Mr Devine put that he had been aware of exhibit 24 but had not seen it prior to tender. Mr Devine accepted that the report recommended termination of employment in some cases, which he conceded had not been pursued. 244Mr Devine emphasised that one employee who had been two years behind in his flex sheets had not been disciplined because he had gotten them up to date, he had been believed in respect to the times submitted, and he was not subject to any other allegations. 245Mr Devine accepted that another employee had been afforded the courtesy of a direct enquiry (not afforded to Mr Butler), and in respect to the employee who had been two years late with time sheets, Mr Devine put that he had not put in any at all (TR 15/4/13 p 205): "He had not put in any flex sheets at all, so fundamentally we didn't have a declaration that was - whilst it was still a breach of the procedures, we didn't have a declaration that was wrong. So an assessment was made as to whether or not the matter would go to misconduct." 246Mr Devine conceded that there was no investigation of the other employee, however when an enquiry was made of him it was found that the other employee had difficulty with the flex system in that leave would be defaulted to flex time. 247Mr Devine's evidence is that he had no knowledge that Mr Butler found the same difficulty with the time keeping system; which given the investigation into Mr Butler I find most extraordinary. 248Mr Butler, on the other hand, made a declaration that his times were correct, which was not believed. 249There is no evidence in this matter to challenge the sworn evidence of Mr Butler that his declaration of accuracy was correct and valid. 250Mr Butler deposed that there were times that he worked extraordinarily long hours, sixty to eighty per week over seven days, and did not seek payment. This evidence is supported by emails, attached to Mr Butler's statement (exhibit 2 attach. A), in which Mr Moir speaks of the expanding work, assuring Mr Butler that he will be involved, stating: "could anyone match the tenacity of the Kiwi terrier?!" 251This communication also supports the evidence that Mr Butler was persistent in his determination to satisfy his superiors, and Mr Moir's attitude toward his diligence. Conclusion re Allegations 6 and 7 252Mr Butler was tardy in meeting his obligations in respect to submission of his time sheets. This conduct was part of a pattern of conduct within ITSB that was allowed by management and ignored by the Human Resources Department. 253That the situation required correction is not arguable. It is not, however, open to allocate the totality of blame and culpability upon Mr Butler. 254It is of concern that Mr Butler and others were allowed to become negligent in their time keeping records to the extent evidenced here; so much so that it amounts in my opinion to a systemic failure within the organisation and particularly those responsible for payroll administration and human resources who failed to insist upon the submissions of flex sheets in accordance with policy. 255I find the evidence of Mr Devine that Mr Butler was subject to disciplinary action because he made a false declaration that the times submitted were correct, whilst another was exempt because there was no declaration at all, quite bizarre and extremely unfair to Mr Butler. 256The assertion that Mr Butler made a false declaration is not substantiated. 257The Respondent did not put even one time sheet into evidence to support the allegation of inaccuracy or to challenge Mr Butler's deposition that the times were conservative in favour of WorkCover. Allegation 8 During 2011 you failed to comply with the Code of Conduct and the need to carry out your duties responsibly and ethically by failing to report and record gifts and benefits received as part of your employment in the appropriate Register. 258This allegation was founded upon Mr Butler's attendance at a lunch on 25 November 2011 at the Meat and Wine Co restaurant located at Darling Harbour in Sydney which was paid for by Dimension Data, a contractor to WorkCover. 259Mr Butler deposed that this was the one and only occasion in four years that he participated in a lunch of this nature. 260Mr Butler's evidence is that he was in discussions with personnel from Dimension Data during the morning and on conclusion the proposition of lunch arose. Mr Butler put that contracts for the ensuing period were settled well prior to the occasion of the lunch and his attendance could not create any sense of obligation. 261Mr Butler's evidence is that he offered to pay for his own lunch but this was not accepted by Dimension Data personnel who insisted on paying. 262WorkCover's Gifts and Benefits Guidelines state (exhibit 19): Modest hospitality such as tea, coffee and modest lunch is considered to be common courtesy, as opposed to a gift or benefit, and would be offered by most organisations to visitors. 263Mr Butler's evidence is that he regarded the lunch as modest hospitality and accordingly believed he did not need to record it. 264Mr Butler was highly critical of the investigator's findings in respect to this allegation, putting that the investigator based his conclusion on a misconception that the lunch had been at a restaurant identified as Kobe Jones in Darling Harbour, and used the menu prices from that restaurant as a reference point to ground his conclusion that the hospitality could not have been of a nominal value. 265Mr Butler put that the investigator picked the incorrect price from the wrong menu from the wrong restaurant, as compared to the lunch menu from the adjacent restaurant at Darling Harbour where the lunch actually took place. 266Mr Butler was further critical of the investigator's finding in respect to his communications with vendors, putting (exhibit 2 at para 334): 334. In addition, the Investigator, under his regular sub-section for each allegation headed 'Statements of Fact', made the following Statement: 12. The respondents communications with some vendors shows over familiarity. Firstly, this is NOT a statement of fact - rather, it is a gratuitous, highly opinionated and subjective statement from an external consultant who would have zero knowledge of a particular individual in his role and his relationship with an external private enterprise vendor. However, as one incident was only uncovered by the Investigator in a 4 -year period while I was in this role, and I had truly and honestly believed that I had complied with the "gift register policy", I believe that it was unfair for Mr Watson to consider this a dismissible offence, as he stated. 267In cross examination Mr Reitano sought further definition from Mr Devine of the term "modest hospitality", putting to him that the descriptor of "tea, coffee and a modest lunch" is the one found in the Gifts and Benefits Register. 268Mr Devine accepted that in order to determine whether an entry is made in the Gifts and Benefits Register the individual officer must make a decision as to whether the lunch falls within the scope of "modest hospitality", and if it does no entry need be made. 269Mr Devine's testimony is that in the training provided employees are told that a "modest lunch" is one involving a small amount of money, without particular qualification; leaving it to the officer to determine whether the cost is such that it falls within the scope of "modest hospitality". 270Mr Devine conceded that he made no enquiry as to the nature of the lunch subject to this allegation, putting that it would not be appropriate for him to do so during the course of an investigation. 271Mr Watson conceded that he had no evidence before him to suggest that the lunch in question was anything but a modest lunch. 272Mr Watson expressed some concern that any employee of Mr Butler's position would accept any lunch from any contractor, acknowledging that this is not the policy guidance which allows modest hospitality. Conclusion Re Allegation 8 273I find that there is no substance or evidentiary support for this allegation. 274There is a distinct absence of any quantification of the lunch. The investigator's report deals with the wrong restaurant. There is no evidence from the hosts of the lunch as to the cost or circumstances, or any direct reliance upon the outcome of the investigation. 275The best that WorkCover's case comes to is the information proffered by Mr Butler that he initially offered to pay for his own lunch, which is then used against him to suggest that if he had taken this view the hospitality must not have been modest. 276I regard this approach as fundamentally wrong. 277The allegation that the hospitality was not modest must be supported by fact, not assumption. 278The policy required Mr Butler to make a decision, which he did. There must be a factual basis to challenge that. 279Further, there is no evidence whatsoever to suggest that accepting the lunch had or would compromise Mr Butler or WorkCover in any way. 280There is no basis for disciplinary action on this ground. Consideration 281There is no disagreement between Mr Reitano and Mr Phillips concerning the state of the jurisprudence applicable. The onus is upon the applicant to convince the Commission to intervene. However, the onus is upon the party putting the allegation to make out the proof of it (Pastry Cooks Union v Gartrell White No 3 35 IR 70); and the civil standard of proof, on the balance of probability enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336, is that which is applicable. 282The test is that set out in section 88 of the Act, whether the termination of employment is harsh, unreasonable or unjust: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given-its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant. 283Mr Reitano invited me to make a Jones v Dunkel (1959) 101 CLR 298 conclusion, on WorkCover's failure to put the investigator's report into evidence, that it would not have assisted its case. 284Mr Phillips submitted that a Jones v Dunkel conclusion should not be drawn as the Madden investigation found all allegations made out. 285Whilst it might be easy to draw the conclusion sought by Mr Reitano, it is not necessary in the disposition of this matter. 286Mr Devine's evidence that WorkCover required confidentiality in respect to the Madden investigation as the content may damage the reputation of both Mr Butler and WorkCover is of greater concern. 287There is nothing that has emerged in this matter that damages Mr Butler's reputation. So far as WorkCover is concerned, a conclusion cannot be reached without review of the report, however, that is not part of my task in this matter. 288In submissions Mr Phillips reiterated that this matter is not about dishonesty but the continual failure by Mr Butler as a senior public servant to follow policy. 289To the extent Mr Phillip's submission concerning a continual failure by Mr Butler to follow policy is made out (and this is thin on evidentiary grounds) the inescapable conclusion is that Mr Butler's conduct was known to his employer who encouraged, aided and abetted that behaviour, leaving Mr Butler to believe that he was acting as a faithful and dutiful servant. 290There is no substance to any of the allegations made against Mr Butler. 291Mr Butler is an employee of 12 years service. If he is guilty of anything, it is a desire to achieve and to satisfy his superiors. 292Mr Butler was not given a caution, counselling or warning in respect to any of the issues put against him, and as such was denied any sort of fairness. 293The notion advanced by Mr Devine that the issues were so serious that he bypassed the step of taking the matter up with Mr Butler and proceeded directly to a disciplinary investigation is wholly without merit and suggestive of a malicious intent. 294The notion that as a NSW public servant Mr Butler had a duty to policy above that of following the requirements of his organisational leader and superior is one of difficult balance. 295Employees are generally required under their contract of employment to carry out the lawful and reasonable instructions of management. 296It is accepted that employees retain a right and obligation to refuse unlawful and unreasonable instructions of management. Within the NSW Public Service, in this case WorkCover, processes exist to raise concerns. The difficulty is a matter of degree and failure of employees to "blow the whistle" on their superiors is not the foundation for a misconduct allegation against the employee. 297Mr Butler was led into some practices by his organisational supervisors, particularly the failure to complete time sheets and reconcile flexitime, on the principle that getting the job done was more important. 298This cannot be laid entirely at Mr Butler's feet. The investigation process was fundamentally flawed in that the very basis of it was unfair. 299The presence of the WorkCover telephone number on the SPCA website should have been put to Mr Butler prior to investigation and he given an opportunity to change it. 300The eagerness of WorkCover to launch the investigation, then for Mr Devine to seek to deny accountability for this decision by asserting that this course was dictated by procedure is disingenuous and disturbing. 301The willingness of the investigator to develop conclusions adverse to Mr Butler is gravely unfair and in my view misled Mr Watson in his role as decision maker. 302That said, Mr Watson should have made some enquiry of his own to test the investigator's report, that he felt constrained by the procedures leads to the conclusion that the procedures and the way in which they are applied in this case are productive of error, harsh and unfair. 303In many ways Mr Butler is served up as a scapegoat for systemic management failure and as a sacrifice to an application of policy and procedure in a draconian way which countenances no innocent explanation. 304There is a fundamental evidentiary gap in each allegation. 305In respect to the first allegation concerning the item of computer equipment WorkCover chose to ignore the information provided by Messrs Sawkins and Davies that they never expected anything from WorkCover. 306In the allegation concerning the acquisition of the t-shirts WorkCover chose to ignore the fact that Mr Butler was acting on direction from his supervisors, those people with whom he should discuss any concerns. 307In the allegation concerning the misuse of his mobile phone not one phone bill was presented to demonstrate unreasonable personal use. 308In respect to the allegation concerning time sheets, not one time sheet was produced to demonstrate that Mr Butler 's declaration was untruthful. The fact that Mr Butler brought his time sheets up to date without specific request or direction external his base management is conveniently discounted. 309Equally in respect to the allegation of receiving a lunch that went beyond modest hospitality WorkCover put no evidence, or sought any from Mr Butler, as to the cost of the lunch or suggestion of the value of modest hospitality. 310The secondary employment allegations are, in my view, blatant entrapment and persecution. Mr Butler made the application for approval in a spirit of co-operation on the advice of Ms Klaassen who conducted an investigation and culture review. Mr Butler was then hung as a result. 311It was put that Mr Butler's involvement with Diversitech was no part of the secondary employment allegation, however a substantial case was run about it. 312In so far as the allegation concerning forwarding work emails to himself, the fact that Mr Butler did so for the benefit of WorkCover and in a manner that he considered better met the policy and requirements of ensuring security of information is discounted to negligible consideration against the charge against him. 313There are two consistent trends in respect to all of the allegations. 314The first is that in each and every case Mr Butler was acting in the interests of others, primarily WorkCover and secondly the SPCA; his family in respect to Diversitech; and his work colleagues in assisting them to meet operational objectives. 315The second is an apparent determination by WorkCover, it's investigator and decision makers, to persecute Mr Butler out of the organisation by accepting and amplifying any notion adverse to Mr Butler while at the same time discounting anything in his conduct that may be mitigating or supportive of an innocent explanation. 316I find this conduct by the organisation to be shabby and disgraceful. It lacks any objectivity and has the characterisation of institutional bullying. 317The failure of any other branch of management, including Human Resources, to address flexitime balances being ignored for so long by Mr Butler and others is, in my opinion, an incompetent abdication of responsibility. 318The manner in which the investigation was conducted and the subsequent treatment of Mr Butler is in my view deplorable. The decision to conduct the investigation was devoid of any common sense or fairness to Mr Butler. The conclusions reached and the logic behind them conveys an attitude of premeditation and witch hunt, not a process grounded in fairness or objective, evidence based decision making. 319For these reasons I find the termination of Mr Butler's employment to be harsh, unreasonable and unjust. 320I find that there is no practical barrier to re-instatement and order accordingly with full continuity of service and no loss of remuneration. ORDERS 321I make the following orders: 1. Pursuant to section 89 (1) of the Industrial Relations Act 1996 the Safety, Return to Work and Support Division is ordered to reinstate Mr Wayne Butler to his former position on terms not less favourable than those that would have been applicable but for dismissal within 14 (fourteen) days of the date of this decision. 2. Pursuant to section 89 (3) of the Industrial Relations Act 1996 the Safety, Return to Work and Support Division is ordered to pay to Mr Wayne Butler the remuneration he would, but for being dismissed, have received before being reinstated in accordance with the order. 3. Pursuant to section 89 (4) of the Industrial Relations Act 1996 the period of employment of Mr Butler by the Safety, Return to Work and Support Division is taken not to have been broken by the dismissal. I so order. R W Harrison Deputy President Amendments 26 June 2013 - re-ordered paragraph numbering Amended paragraphs: 1-321 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. Decision last updated: 26 June 2013