Industrial Relations Commission New South Wales Medium Neutral Citation: Corrective Services NSW v Danwer [2013] NSWIRComm 61 Hearing dates: 4 July 2013 Decision date: 16 July 2013 Before: Boland J, President, Staff J, Backman J Decision: (1) Leave to appeal is granted. (2) The appeal is upheld. (3) The decision given on 27 May 2013 by Newall C in Matter IRC 1241 of 2012 is set aside and the orders quashed. Catchwords: UNFAIR DISMISSAL - Public sector employee employed as a prison officer convicted of a serious offence - Employee dismissed pursuant to s 48 of the Public Sector Employment and Management Act 2002 - Dismissal found to be harsh at first instance - APPEAL - Application for leave to appeal and appeal by employer - Repudiation of contract - Off-the-job conduct - Attitude of employee regarding guilt and conviction - Connection between attitude and duties as a prison officer - Proper approach to a consideration of whether dismissal was harsh - All relevant factors to be taken into account and weighed - Errors at first instance - Appeal upheld - Decision at first instance set aside and orders quashed Legislation Cited: Crimes Act 1900 Industrial Relations Act 1996 Public Sector Employment and Management Act 2002 Cases Cited: Bradley Smith v Commissioner of Police (No. 4) [2010] NSWIRComm 14 Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325 Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 Davies v General Transport-Development Pty Ltd (1967) AR 371 Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Director of Public Employment by his agent the Director-General of The Department Of Juvenile Justice and Professional Officers' Association Amalgamated Union of NSW (On Behalf of Elvin Brian Brown) [2008] NSWIRComm 221; (2008) 184 IR 134 Egge and Pitt v Corrective Services [1993] NSWIRComm 29 Fire Brigade Employees' Union of New South Wales (on behalf of Brendan O'Donnell) and Fire & Rescue NSW [2013] NSWIRComm 57 Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151; (1999) 88 IR 282 NSW Attorney-General's Department v Miller [2007] NSWIRComm 33; (2007) 160 IR 185 NUW (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388; (2005) 146 IR 441 Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 Public Employment Office, Department of Attorney General and Justice (Corrective Services NSW) v Silling [2012] NSWIRComm 118 Rose v Telstra Corporation Limited (Unreported, AIRC, Ross VP, Print Q9292, 4 December 1998) Shonit Kumar Danwer v Corrective Services NSW [2013] NSWIRComm 1009 Wells and Commissioner of Police [2000] NSWIRComm 157; (2000) 100 IR 106 Category: Principal judgment Parties: Corrective Services NSW (Appellant) Shonit Kumar Danwer (Respondent) Representation: Mr S Benson of Counsel (For the Appellant) I V Knight, Crown Solicitor (For the Appellant) Stephen Ryan Solicitor (For the Respondent) File Number(s): IRC 460 of 2013 Decision under appeal Citation: Shonit Kumar Danwer v Corrective Services NSW [2013] NSWIRComm 1009 Date of Decision: 2013-05-27 00:00:00 Before: Newall C File Number(s): IRC 1241 of 2012 DECISION OF THE COMMISSION 1This matter concerns an application for leave to appeal and, if leave is granted, to appeal from a decision of Newall C given on 27 May 2013 in Shonit Kumar Danwer v Corrective Services NSW [2013] NSWIRComm 1009. 2Mr Danwer was Correctional Services Officer 1 employed by the respondent, Corrective Services NSW, at the Metropolitan Reception and Remand Centre (MRRC). After over nine years service his employment was terminated on 23 November 2012. 3On 23 April 2012, Mr Danwer was convicted of an offence under s 61N(2) of the Crimes Act 1900, namely, an offence of indecency towards a person over the age of 16 years. He had pleaded not guilty to the offence. Mr Danwer was fined and placed on a bond. Mr Danwer appealed the conviction and the sentence to the District Court. On 20 September 2012, the District Court (Colefax DCJ) dismissed the appeal and confirmed the conviction. The Court maintained the fine imposed, but varied a part of the sentence relating to the bond. 4The background to the conviction is that in August 2011 the respondent's daughter was a student at a music school. On 30 August 2011 the respondent took his daughter to the music centre at about 5:00pm for a lesson. The respondent's daughter went into her music class and the respondent then sat in the hallway of the music centre, which functioned as a waiting room. Chairs were arranged along the length of the corridor and parents and students waiting for tutorials were able to sit on those chairs. The respondent sat in one of those chairs and at times was under CCTV observation. 5A short time after the respondent sat down a female police officer, Constable Gosby, who was aged 22, wearing the disguise of a High School uniform, sat opposite the respondent. Constable Gosby had been given an iPhone to fit in with her role as a teenager and to make notes on what she observed. 6Magistrate Grogin at the Hornsby Local Court found that Constable Gosby attended at the music centre with a specific purpose and that was to conduct surveillance of the respondent. The appellant submitted the inference was open to the Commission that the police conducted its operation regarding the respondent pursuant to an investigation into a report that the respondent had exposed himself to a young person. The inference was said to be open because of a psychologist's report in evidence that referred to the respondent being charged and acquitted of charges relating to the respondent exposing himself to a young person and as a consequence this led to the surveillance at the music centre. 7The magistrate accepted the evidence of the police constable and video evidence that the respondent had exposed his erect penis to the constable. His Honour made the following findings: I am satisfied that an act of exposing the penis and having an erection at the time is an act of indecency, one which offends the common person. I am satisfied of the observations of Constable Gosby. I am satisfied that the offence has been proven beyond reasonable doubt. 8In accordance with the requirements of the Public Sector Employment and Management Act 2002 (PSEM Act) Mr Danwer was invited to make a submission to the employer in relation to disciplinary action the employer was considering taking in light of Mr Danwer's criminal conviction. Newall C accurately summarised the subsequent interaction between Mr Danwer and his employer at [15]-[32] of his decision: [15] Mr Danwer responded by letter on 18 October 2012. In that letter he advanced as matters for consideration that he had no prior convictions of any kind, that he had an unblemished work record, and that he was a person of good character in the wider community, in support of which he advanced a number of character references, including from the Chief Priest of the Shree Swami Narayan Temple and the Australian Sikh Association, both of which spoke of his good character and dedication in religious matters, and from friends and fellow officers. [16] Mr Danwer also referred to his family circumstances and to the fact that the likely effect of dismissal would be loss of the family home and hardship for his family. He expressed himself prepared to accept a fine or demotion. [17] In the same letter he stated 'I maintain that I did not expose my penis to Constable Gosbee but I accept the decision of the Court.' [18] On 19 October 2012 Mr Danwer participated in an interview with Mr Grant. Mr Danwer in his oral evidence stated that in that interview he was very nervous and stressed to be interviewed by a high-ranking officer and he believed after the interview that, because of this nervousness, he had not said all that he ought to have said in his defence. [19] A transcript of the interview was in evidence. Its accuracy was not challenged. It discloses that Mr Grant expressed concern on several occasions that Mr Danwer was maintaining that he was not guilty of the offence. Mr Grant in relation to this matter used the term 'denial' which he repeated in his statement of evidence (paragraphs 19 and 20). Mr Grant also asked Mr Danwer if he had seen a psychologist or a counsellor about the matter; Mr Danwer answered that he had undertaken some sessions through the Employee Assistance Programme. [20] Mr Danwer for his part stated that the District Court's withdrawal of the bond indicated that he was unlikely to offend again, emphasised that the testimonials he had from work colleagues supported his view that he could return to work without difficulty and placed significant emphasis on his family situation, his mortgage and the expenses associated with preparing his son to attend university. [21] On 23 October 2012 Mr Danwer provided a report from Dr Tony Robinson, a clinical psychologist. The report indicated that Mr Danwer had undergone ten sessions of focussed psychosexual treatment . Dr Robinson stated that in his view Mr Danwer now understood that his actions were offensive and that he understood how conduct of this sort could impact on its victims. [22] Together with that report Mr Danwer provided character references from about 30 work colleagues, each of whom stated that he or she was aware of the offence but regarded Mr Danwer as being a decent person of good moral character. One of the signatories, at least, held the rank of Assistant Superintendent. [23] Following the interview and receipt of Dr Robinson's report and the testimonials, Mr Grant again wrote to Mr Danwer, the letter being dated 6 November 2012. He offered Mr Danwer the opportunity to provide a further written submission to assist him in 'clarifying your position in terms of what you have done or propose to do in addressing your offending behaviour'. In particular, Mr Danwer was invited to address whether he saw any risks his behaviour might pose in terms of future relapses. [24] On 21 November 2012 Mr Danwer wrote again to Mr Grant. He emphasised that the Local Court magistrate had held 'I find after this matter that he was probably unlikely to reoffend' and further, 'this is an aberration and I do not think any supervision in these circumstances is needed.' [25] Mr Danwer said that he did not foresee any further risk in his behaviour - the question posed to him by Mr Grant in his letter of 6 November - and that he was willing to undergo more counselling sessions or any other treatment. He again stated that he would accept a fine or demotion.. [26] Mr Danwer attached to that letter two reports from Dr Robinson to the referring general practitioner, Mr Danwer's family doctor, the first made after 6 sessions of treatment and the second made after 10 sessions. [27] In the first report Dr Robinson expressed the following view: ''There is no evidence that Mr Danwer is suffering a psychosexual disorder (ie exhibitionism). It is my thought that if he was acting in an unusual way, it may be explained more by his hyperthyroidism condition that was undiagnosed at the time'. Dr Robinson also indicated that Mr Danwer 'maintains his innocence' in respect of the conviction. [28] In the second report Dr Robinson says in terms of Mr Danwer 'he has always denied his convicted offence' although he goes on to say, as he later repeated in his letter to Mr Grant, that Mr Danwer 'has a good understanding of how exhibitionism can affect ...its victims." [29] Dr Robinson was not required for any cross-examination. [30] In his covering letter to Mr Grant, Mr Danwer began by stating ' I believe that I did not expose my penis to Constable Gosbee but I accept the decision of the court' and continued "I have adjusted myself in the public place without ever realising that it could be offensive to others' , and further 'Now I understand that my behaviour is not acceptable. I am very remorseful about it and now I am extremely careful of my conduct.' [31] Mr Grant said (Statement, paragraph 24) that having given careful consideration to all the material provided, he decided that Mr Danwer should be dismissed from the Public Service. In the list of materials to which Mr Grant said he had regard, he referred to Dr Robinson's letter of 23 October 2012 but not to the two reports attached to Mr Danwer's letter of 21 November, although he referred to that letter. Although he was not challenged on his statement that he gave 'all the material' careful consideration, the Commission was left without knowing with certainty if that included Dr Robinson's two reports to Mr Danwer's treating family doctor. [32] Mr Grant went on to say (Statement, paragraph 25) as follows: 'In reaching my decision I placed a lot of weight on the fact that the Applicant, in his employment as a Correctional Officer, would routinely be required to undertake case management duties. An important component of this is working individually with offenders to assist them to develop insights into their offending behaviour and to take personal responsibility for their circumstances. The Applicant's lack of insight into his own offending behaviour and his persistent attempts to minimise the serious implications of his behaviour make him unsuitable for executing a core part of his duties. In the contemporary correctional environment, where reducing re-offending is a key government target, a Correctional Officer is more than a turnkey and is expected at the minimum to model prosocial behaviour and motivate offenders to change. The Applicant's conduct, particularly his failure to take full responsibility for his behaviour, is incompatible with his duty as an employee'. First instance proceedings 9On 14 December 2012, Mr Danwer filed an application seeking relief in relation to unfair dismissal. Conciliation of Mr Danwer's claim was unsuccessful and the matter proceeded to arbitration before Newall C. 10In his decision the Commissioner necessarily accepted that Mr Danwer committed an act of indecency toward a person over the age of 16 within the meaning of s 61N of the Crimes Act, as determined by the Local Court and, on appeal, by the District Court. 11Newall C considered that although the conduct that led to Mr Danwer's criminal conviction was not conduct that occurred in the course of employment - and was referred to as "off-duty conduct" - it was conduct to which the employer was entitled to have regard, and so was the fact of Mr Danwer's conviction. 12The Commissioner found that the test to be applied was whether the conduct was such as to indicate an objection or repudiation of the employment contract by the employee. In that respect, the Commissioner stated at [61]: [61] In my view it could not be said that Mr Danwer's conduct for which he was convicted was such as to indicate an objection or repudiation of the employment contract by the employee. Mr Danwer's conduct was reprehensible in a social and public sense. It did not however in my view demonstrate an intention to repudiate the contract of employment; nor was it of itself conduct so as to of itself terminate the contract. 13At [66], Newall C considered he was required to have regard to the essential reason for the dismissal. He stated: [I]n considering whether the dismissal of Mr Danwer was or was not harsh, unjust or unreasonable, the Commission must have regard to the essential reason for the dismissal. That was, on the respondent's case, its assessment of the effect of Mr Danwer's ongoing apparent denial of his guilt for the matter for which he was convicted upon the employment relationship, given the particular duties and responsibilities of his position. That was the matter to which Mr Grant gave 'a lot of weight' in determining to dismiss Mr Danwer. 14Given the employer's essential reason for Mr Danwer's dismissal, the Commissioner found the dismissal was harsh. He explained his reasons for that conclusion as follows: [68] Given Mr Grant's evidence, it was not unreasonable that he actively consider dismissing Mr Danwer given Mr Danwer's ongoing unpreparedness to come to terms with his conduct; it was not, in the sense that this Commission has applied the term, unjust to consider dismissal, but the imposition of the ultimate sanction of dismissal was harsh. [69] It was harsh because, while Mr Grant's concerns about Mr Danwer's attitude were legitimate and I accept that he sought to act solely in the proper interests of the Service, I am not satisfied that Mr Danwer's attitude to the conviction properly imposed on him for his off -duty conduct, which was the essential element of the reasoning in the decision to dismiss, was an attitude such as to warrant the view that it was incompatible with his duties as an employee, particularly as an employee of relatively junior rank, and such as to warrant the termination of employment of an employee with a nine-year unblemished employment record. [70] Mr Grant was not wrong to have regard to Mr Danwer's attitude to his conduct and conviction in assessing the sanction to be imposed. I accept what Mr Grant said in evidence about the general role and responsibilities of a Correctional Officer. I accept his evidence that a Correctional Officer at the Remand Centre and in other institutions would have interactions of the kind he described with prisoners. [71] Having said that, there was little evidence of Mr Danwer himself ever having had to carry out those interactions, and in the context of his obligation to be a role model Mr Danwer is of relatively junior rank. Mr Grant was not able to give any evidence about the precise duties carried out by Mr Danwer. He readily agreed in cross-examination that he was not aware of the precise operational arrangements within the Remand Centre. His concern was on the basis of the role and duties to be undertaken by all Correctional Services Officers. [72] While I accept that Mr Danwer's attitude to his conduct and conviction was a matter that Mr Grant could relevantly take into account in his decision on sanction, I am not on balance satisfied, on the particular facts of this case, that Mr Danwer's attitude was such as to be incompatible with his duties as an employee, and for that reason I find the ultimate sanction of dismissal harsh. The dismissal therefore falls within the category of dismissals contemplated by s.84 of the Act. 15The Commissioner turned to the question of remedy. In doing so, he found reinstatement was not impracticable: ... essentially because no other basis has been advanced on which Mr Danwer might not carry out his duties save the attitude he holds to his conviction, and I have found that insufficient to deprive him of his employment. I propose to make an Order reinstating Mr Danwer in his employment. 16In that connection, Newall C also noted that: [O]n the face of it there are a number of work colleagues who are not ill-disposed to Mr Danwer despite knowing about his offence, while on the other hand no evidence was advanced to demonstrate that he would not be accepted back into the workforce. 17Newall C made the following orders: 1. The applicant, Mr Shonit Kumar Danwer, is reinstated to his former position of Corrective Services Officer at the Metropolitan Remand Centre with effect from the commencement of the first pay period on or after today's date. 2. The applicant's period of service shall be treated as not having been broken by his dismissal. For want of any doubt, the applicant shall be treated for the purpose of calculating entitlements as having been suspended without pay, less any periods for which he utilised accrued paid leave, from 24 April 2012 until the date he resumes work. 3. No Order is made in relation to remuneration pursuant to s.89(3) of the Act. 4. These Orders take effect on and from the date of this decision. Leave to appeal 18We have decided to grant leave to appeal. The appeal raises important issues including the considerations that are relevant to whether a dismissal effected pursuant to s 48 of the PSEM Act was harsh. Accordingly, we consider it is in the public interest to grant leave. Grounds of appeal 19The grounds of appeal were as follows: (1) The Commissioner erred in failing to apply orthodox industrial jurisprudence in the determination of whether the dismissal was "harsh" in the circumstances and whether a reinstatement was "practical" in the circumstances; (2) The Commissioner erred in applying the principles in Rose v Telstra Corporation in the matter before him in circumstances where those principles had no direct relevance; (3) The Commissioner erred at [60] of the Decision in stating "the test is still whether the conduct was such as to indicate an objection or repudiation of the employment contract of the employee"; (4) The Commissioner erred at [61] and [72] of the Decision in applying the erroneous test he determined was applicable to the question of whether, in the circumstances, the dismissal was "harsh"; (5) The Commissioner erred in not finding at [66] of the Decision that the essential reason for the dismissal was the assessment of the respondent below that the applicant below's lack of insight into his own offending behaviour made him unsuitable for executing a core part of his duties as a Corrective Services Officer; (6) The Commissioner erred in determining at [75] of the Decision that it was practical to reinstate the applicant below to the position of Corrective Services Officer without giving any, or sufficient, consideration to: (a) The evidence of Mr Grant at [32] and [43] of the Decision that a Corrective Services Officer at the Remand Centre would necessarily be involved in his regular duties in the sort of interactions with prisoners that he had determined the applicant below to be unsuitable to carry out; and (b) The failure to "squarely" put to Mr Grant that there were Corrective Services Officer positions, either at the Remand Centre or elsewhere, that could be occupied without the officer having at any time to undertake the interactions referred to by Mr Grant: see [44] of the Decision. 20The relief sought was an order that the decision under appeal be set aside and the orders under appeal be quashed. Consideration Harsh, unreasonable or unjust 21The Industrial Relations Act 1996 (IR Act) provides for certain remedies where the Commission finds that the dismissal of an employee from employment was "harsh, unreasonable or unjust": see s 89. It has been said those words constitute a "tautological trinity" (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a "tautological trinity". As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. See also NUW (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388; (2005) 146 IR 441 at [64] and Department of Health v Perihan Kaplan [2010] NSWIRComm 65 at [25]-[32]. 22Newall C clearly understood that a dismissal may be harsh, or unjust, or unreasonable, or all three. In the first instance proceedings the Commissioner found the dismissal of the respondent was harsh because the Commissioner was not satisfied that Mr Danwer's attitude to the criminal conviction imposed on him for what the Commissioner described as the respondent's "off-duty conduct" was an attitude "such as to warrant the view that it was incompatible with his duties as an employee, particularly as an employee of relatively junior rank and such as to warrant the termination of employment of an employee with a nine-year unblemished employment record." 23In making this finding, Newall C observed that no question of procedural fairness arose; there was no issue as to what the initial conduct was that led to Mr Danwer's dismissal; and there was no real issue of credit. PSEM Act 24Before addressing the Commissioner's reasons for holding the respondent's dismissal was harsh and whether the Commissioner erred in that respect, a relevant consideration is the nature of the respondent's employment. Mr Danwer was a public sector employee employed pursuant to the PSEM Act. Part 2.7 of that Act deals with the management of conduct and performance. Section 41 identifies the objects of Pt 2.7: 41 Objects of Part The objects of this Part are as follows: (a) to maintain appropriate standards of conduct and work-related performance in the Public Service, (b) to protect and enhance the integrity and reputation of the Public Service, (c) to ensure that the public interest is protected. 25Section 48 of the PSEM Act, also falling within Pt 2.7, deals with disciplinary action that may be taken against an employee who is convicted of a serious offence. The section is in the following terms: 48 Disciplinary action may be taken if officer is convicted of serious offence (1) If an officer is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more, or is convicted elsewhere than in New South Wales of an offence that, if it were committed in New South Wales, would be an offence so punishable, the appropriate Department Head may: (a) decide to take disciplinary action with respect to the officer, or (b) decide to take remedial action with respect to the officer. (2) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking. (3) A reference in subsection (1) to the conviction of an officer for an offence punishable by imprisonment for 12 months or more includes a reference to the officer having been found guilty by a court of such an offence but where no conviction is recorded. 26Disciplinary action for the purposes of Pt 2.7 is defined in s 42 of the PSEM Act: 42 Definitions (1) In this Part: disciplinary action, in relation to an officer, means any one or more of the following: (a) dismissal from the Public Service, (b) directing the officer to resign, or to be allowed to resign, from the Public Service within a specified time, (c) if the officer is on probation-annulment of the officer's appointment, (d) except in the case of a senior executive officer-reduction of the officer's salary or demotion to a lower position in the Public Service, (e) the imposition of a fine, (f) a caution or reprimand. ... 27Director of Public Employment by his agent the Director-General of The Department Of Juvenile Justice and Professional Officers' Association Amalgamated Union of NSW (On Behalf of Elvin Brian Brown) [2008] NSWIRComm 221; (2008) 184 IR 134 was an appeal from Sams DP. The appeal concerned the dismissal of a public sector employee employed under the PSEM Act. Sams DP found that in employment under that Act: ... for an employee to be summarily dismissed for misconduct, (as is the case here), there must be demonstrated conduct of such a serious or wilful nature as to strike at the very heart of the ongoing relationship between the employer and the employee. It has often been described as conduct amounting to a repudiation or renunciation by the employee of his/her employment contract.' (at [113]). 28The Full Bench found that in approaching the issues raised by the respondent's application on the basis of whether the misconduct established on the evidence would have warranted Mr Brown's summary dismissal at common law, his Honour fell into error. The Full Bench said that is a concept with which the PSEM Act does not concern itself. In that regard, the Full Bench stated: [20] While public servants such as Mr Brown may undoubtedly also be employees at common law, their contracts of employment must be contracts made in accordance with the applicable statutory scheme. As Brennan J observed in Director-General of Education v Suttling (1987) 162 CLR 427, at 437: Members of the Service are appointed pursuant to the Act and their rights must be ascertained by reference to its provisions. The relationship between a civil servant of the Crown and the Crown has often been described as contractual, though the civil servant has been appointed pursuant to statute: see, eg, Gould v Stuart [1896] AC 575, at p 577; Carey v The Commonwealth [(1921) 30 CLR 132, at p 137; Lucy v The Commonwealth (1923) 33 CLR 229, at pp 238, 249, 253. However, the contractual nature of the relationship has not been universally accepted: see, eg, Monckton v The Commonwealth (1920) 27 CLR 149, at pp 155, 156; Lucy v The Commonwealth (1923) 33 CLR, at p 244; Geddes v Magrath; Morgan v Geddes (1933) 50 CLR 520, at pp 533- 534; The Commonwealth v Welsh (1947) 74 CLR 245, at pp 262, 274; and cf Ryder v Foley (1906) 4 CLR 422, at 440. And sometimes an espousal of one view rather than the other has been avoided: see, eg, Reilly v The King [1934] AC 176, at p 180; Kodeeswaran v Attorney-General (Ceylon) [1970] AC 1111, at p 1118. If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions. [21] So far as dismissal is concerned, it is the provisions of the Public Sector Employment and Management Act which the Director General was obliged to observe. That Act is concerned with 'misconduct' as defined and 'disciplinary action' as also defined, which may be taken, if misconduct is established. It is left to the Department Head in question to determine what disciplinary action is appropriate in the circumstances of a particular case. One action which may be taken is to dismiss. That is what occurred in this case. [22] Given the provisions of s 83, there is no question that the fairness of such a decision may be challenged, in accordance with the provisions of the Industrial Relations Act 1996 ('the Act'). What may then arise for consideration is both whether misconduct in fact occurred and if it did, whether the disciplinary action taken, dismissal, was 'harsh, unreasonable or unjust' in all of the circumstances. Such a consideration may also involve considering whether other disciplinary action available to be taken by the Department Head, ought to have been taken in the circumstances. [23] It follows that in approaching the issues raised by Mr Brown's application on the basis of whether the misconduct established on the evidence would have warranted Mr Brown's summary dismissal at common law, his Honour fell into error. That is a concept with which the Public Sector Employment and Management Act does not concern itself. 29As the Full Bench in Brown observed, concepts underpinning summary dismissal, such as conduct amounting to a repudiation of the contract, are not part of the statutory scheme governing public sector employment. Relevant considerations under PSEM Act 30In determining an unfair dismissal application of the nature that was before Newall C, the following considerations are relevant: (i) whether the employee was a public sector employee to whom the PSEM Act applied; (ii) whether the employee was convicted of an offence to which s 48 applied; (iii) whether disciplinary action was taken in accordance with ss 48 and 42(1); and (iv) if so, whether the disciplinary action, viewed objectively, was harsh, unjust or unreasonable having regard to all the circumstances of the case, including the requirements of s 88 of the IR Act and the objects of Pt 2.7 of the PSEM Act. There is no basis for importing into the statute a provision to the effect that where a public sector employee commits an offence to which s 48 applies, the test is whether the commission of the offence evinced an intention to repudiate the contract of employment. 31At [60] of his decision, Commissioner Newall maintained that the test was whether Mr Danwer's conduct was such as to indicate an objection or repudiation of the employment contract. At [61] the Commissioner found the conduct did not demonstrate an intention to repudiate the contract of employment; nor was it of itself conduct so as to of itself terminate the contract. 32Having regard to Brown, we do not consider the Commissioner's approach was correct and to that extent he was in error. 33Commissioner Newall also referred to Rose v Telstra Corporation Limited (Unreported, AIRC, Ross VP, Print Q9292, 4 December 1998), cited with approval in NSW Attorney-General's Department v Miller [2007] NSWIRComm 33; (2007) 160 IR 185 at [52] and Public Employment Office, Department of Attorney General and Justice (Corrective Services NSW) v Silling [2012] NSWIRComm 118. These cases involved out-of-hours conduct by an employee. The most relevant is Silling where the Full Bench considered an appeal from a decision at first instance that found the dismissal of a public sector employee, who had been convicted of an offence to which s 48 applied, was harsh and unjust and unreasonable. 34The Full Bench refused leave to appeal. Backman J (with whom Haylen J and Stanton C agreed) considered the relevance of out-of-hours conduct in the context of considerations under ss 41 and 48 of the PSEM Act. At [42] and [45] her Honour found: [42] I also reject the contention that ss 41 and 48 of the PSEM Act provide the necessary connection between the out-of-hours conduct and employment. Section 48 provides for the taking of disciplinary or remedial action in relation to an employee who has been "convicted" of a serious offence. It does not require a dismissal, but allows for a range of disciplinary or remedial action. As the respondent contended, s 48 implicitly recognises that there will be some offences in which there is no connection, or only a slight connection with employment. Such instances may warrant no action being taken or only minimal action. Section 41 does no more than set out the objects which are applicable to the decision-maker's consideration of s 48. The primary decision-maker, here Deputy Commissioner McLean, was required to observe the provisions of ss 41 and 48 in determining what appropriate action to take. Commissioner Bishop's consideration required a different focus, namely, whether Mr Silling's dismissal, effected under s 48, was harsh, unreasonable or unjust. ... [45]...The issue as to whether there was a connection between Mr Silling's out-of-hours conduct (the convictions) and his dismissal was relevant to Commissioner Bishop's consideration as a factor she was required to take into account. The Commissioner undoubtedly took it into account, regarding it as "very relevant" to her consideration. Moreover, her approach was consistent with the approach taken by the Full Bench in NSW Attorney-General's Department v Miller [2007] NSWIRComm 33. 35We respectfully agree with her Honour. Out-of-hours conduct may be a relevant consideration in determining whether a dismissal effected under s 48 of the PSEM Act was harsh, unreasonable or unjust. That Commissioner Newall had regard to the respondent's conviction as out-of-hours conduct did not constitute an error. The extent to which the Commissioner was influenced by the fact the conviction related to out-of-hours conduct is not clear because he appears to have merged that issue into the repudiation issue, which was affected by error. Whether dismissal was harsh 36Although Commissioner Newall applied the wrong test, the question remains whether he erred in finding the dismissal of the respondent was harsh, thereby attracting the reinstatement remedy under the IR Act. 37In finding the dismissal was harsh the Commissioner's reasoning was, fundamentally, that: (i) the essential reason for the dismissal was the employer's "assessment of the effect of Mr Danwer's ongoing apparent denial of his guilt for the matter for which he was convicted upon the employment relationship, given the particular duties and responsibilities of his position"; and (ii) the appellant had not shown that the particular duties and responsibilities of the respondent's position were incompatible with his repeated denials of guilt and of the conduct itself. 38At first instance, the employer had contended that Mr Danwer's attitude - that is, his repeated denials of guilt and of the conduct itself, which showed a lack of insight into his own offending conduct - was incompatible with his duties as an employee, because as a Correctional Officer he was required to work with offenders to assist them to develop insights into their offending behaviour. 39Whilst Commissioner Newall accepted that Mr Danwer's attitude to his conduct and conviction was a matter the employer could relevantly take into account in its decision on sanction, he found that the employer's contentions regarding the connection between attitude and work duties had not been made out. This was principally because Mr Luke Grant, Assistant Commissioner, Strategic Policy and Planning for the appellant and the appellant's only witness at first instance: [W]as not able to give any evidence about the precise duties carried out by Mr Danwer. He readily agreed in cross-examination that he was not aware of the precise operational arrangements within the Remand Centre. His concern was on the basis of the role and duties to be undertaken by all Correctional Services Officers. (at [71]) 40If Mr Grant's evidence was about the role and duties of all Correctional Services Officers, one may presume that included Mr Danwer. So that if the evidence was that all Officers interacted with offenders to assist them to develop insights into their offending behaviour that must include Mr Danwer. Moreover, the Commissioner's finding at [71] seems to be somewhat at odds with what he stated at [43]-[44]: [43] Mr Grant maintained, in the face of vigorous cross-examination, including it being put flatly to him that this statement was untrue, that a Correctional Officer at the Remand Centre would necessarily be involved in his regular duties in the sort of interactions with prisoners that he had determined Mr Danwer to be unsuitable to carry out. (emphasis added) [44] Although this was the general thrust of the questioning, it was not squarely put to Mr Grant in terms that there were Correctional Officer positions with Corrective Services NSW, either at the Remand Centre or elsewhere, that could be occupied without the officer having at any time to undertake the interactions referred to by Mr Grant. 41In any event, it is necessary to examine closely the evidence regarding the respondent's role as a Correctional Services Officer 1. In his cross-examination, Mr Danwer gave the following evidence: Q. Your role as a first class prison officer involved the management of various inmates, case management, is that term familiar to you? A. As a first class? Q. Yes? A. Management of inmates, yes. Case management no. Q. Your management of inmates includes in assisting them to identify courses or therapy or other forms of assistance coming to terms with the criminal conduct that they have engaged in? A. No ma'am. Q. You don't have anything to do with that? A. No ma'am. Q. You don't have anything to do with helping prisoners gain insight into their criminal conduct? A. No ma'am, no case management. Q. At all? A. I would say in 98% of my job I don't do case - we don't do it at the MRRC. Q. At the MRRC? A. Yep. Q. But that's at that particular institute? A. Yes, ma'am. 42A statement of Mr Grant was admitted into evidence. Relevantly, Mr Grant stated: In reaching my decision I placed a lot of weight on the fact that the Applicant, in his employment as a Correctional Officer would routinely be required to undertake case management duties. An important part of this is working individually with offenders to assist them to develop insights into their offending behaviour and to take personal responsibility for their circumstances. The Applicant's lack of insight into his own offending behaviour and his persistent attempts to minimise the serious implications of this behaviour make him unsuitable for executing a core part of his duties. In the contemporary correctional environment where reducing re-offending is a key government target, a Correctional Officer is more than a turn-key and is expected at the minimum to model pro-social behaviour and motivate offenders to change. The Applicant's conduct, particularly his failure to take full responsibility for his behaviour, is incompatible with his duty as an employee. 43In his oral evidence in chief, Mr Grant was asked a number of questions regarding case management of offenders and he was cross-examined closely regarding an Officer's interaction with offenders in remand centres. 44Mr Grant said in his examination in chief that Correctional Service Officers 1 did engage in case management, including in the MRRC where Mr Danwer was posted, and they would be expected to have a caseload. This involved "producing ad hoc reports, ...observations by way of completing a form that goes online, to explain their encounter with an inmate, describing the circumstances of how they were managed." He said case management applied to all offenders, whether they were on remand or whether they had been sentenced. In relation to the objectives of case management, Mr Grant said: It's got a range of objectives. So it's some of them are about the way we use our resources to ensure that when we're engaging with an offender we apply the appropriate sort of resources and support to them to manage their circumstances, you know whether people are going to harm themselves or come to harm. There's a whole series of obligations around our duty of care to offenders. There are also obligations to the community around the way that we actually manage people to ensure that they are returned to the community in at least as good a state, ideally a better state. If they are serving a sentence that they address the issues surrounding their offending behaviour. 45In answer to the question in chief about the role of a prison officer, including a Correctional Service Officer 1, in dealing with offending behaviour, Mr Grant answered: A. Well in the first instance all staff really including correctional officers are required to exemplify good conduct and to engage in a pro-social manner, because pro-social modelling is a fundamentally important part of the change process, so expect staff to engage with offenders in a respectful manner to model good behaviour, to encourage offenders to take responsibility for their behaviour.... The case management concept was about a more dynamic approach where all staff in the system had a responsibility to contribute to what's promoting positive change with offenders, and so a person would be expected to model behaviour in a pro-social manner, to cause people to take responsibility for their behaviour and to assist them to achieve the elements of a case plan, about a case plan that required them to participate in a program or to engage in the type of behaviour that all staff are required to encourage people to support people in their endeavour. 46In cross-examination Mr Grant stated that: [I]n relation to the roles of people in the centre [MRRC] is that if someone doesn't stay in one position for the whole of that time, people move around the centre, so that whilst you might be performing a function we're you're not having contact on a particular roster or so on, when you're on a different roster then you do have contact with someone, so my assumption is that it would be impossible for a person over a period of time in a correctional centre, not to have contact with offenders. 47We have, on the one hand, the respondent stating in his evidence that he had no case management responsibilities at the MRRC and did not have anything to do with helping prisoners gain insight into their criminal conduct. On the other hand, Mr Grant's evidence was all correctional officers, including those at the MRRC, were routinely required to undertake case management duties and that case management duties were undertaken both in respect of those offenders on remand and those that had been sentenced. Mr Grant also said an important part of case management was working individually with offenders to assist them to develop insights into their offending behaviour and to take personal responsibility for their circumstances. Mr Grant said correctional officers were required to be a model of good behaviour and to encourage offenders to change their behaviour. 48No issue of credit arose at first instance. The Commissioner formed the view that both witnesses, Mr Danwer and Mr Grant, gave truthful evidence. 49The conflict in the evidence is not easy to reconcile. Given the generality of Mr Grant's evidence, like Newall C, we have some difficulty in concluding that Mr Danwer was charged with a specific responsibility in the MRRC of "working individually with offenders to assist them to develop insights into their offending behaviour and to take personal responsibility for their circumstances." We do not think it is open on the evidence to find Mr Danwer was, in effect, a mentor to individual offenders. 50We do, however, consider that given Mr Grant's position and his experience in the prison system, weight has to be given to his evidence regarding the general responsibilities of correctional officers towards offenders. In that respect, Mr Grant stated: In the contemporary correctional environment, where reducing re-offending is a key government target, a Correctional Officer is more than a turnkey and is expected at the minimum to model prosocial behaviour and motivate offenders to change. The Applicant's conduct, particularly his failure to take full responsibility for his behaviour, is incompatible with his duty as an employee. 51There is little doubt that as a correctional services officer Mr Danwer was required to be a model of good behaviour and by that standard to motivate or encourage offenders to change their behaviour from antisocial to pro-social. In our view, it could not be otherwise. Moreover, the respondent agreed that, in accordance with the code of conduct applying to Correctional Services NSW, he was required to demonstrate exemplary conduct when off duty. 52Further, as Cullen J observed in Egge and Pitt v Corrective Services [1993] NSWIRComm 29: The administration of a prisons system, in my opinion, requires a higher degree of trust and confidence in prison officers in discharging the very onerous and difficult task of dealing with prisoners. This trust and confidence must be mutual. 53We think Commissioner Newall approached the issue of the conflict between the out-of-hours conduct and the respondent's work responsibilities on too narrow a basis. In the context of the relevance to the employment relationship of the off-duty conduct itself the Commissioner reasoned as follows: (a) the essential reason for the dismissal was the employer's assessment of the effect of Mr Danwer's ongoing denial of his guilt upon the employment relationship given the particular duties and responsibilities of his position; (b) in determining whether the dismissal was harsh the Commission should have regard to the essential reason for dismissal; (b) Mr Grant was not able to give any evidence about the "precise duties" carried out by Mr Danwer; and (c) Mr Danwer's attitude was not such as to warrant the view that it was incompatible with his duties as an employee, particularly as an employee of relatively junior rank, and such as to warrant the termination of employment of an employee with a nine-year unblemished employment record. 54It is true that in deciding to dismiss the respondent Mr Grant gave "a lot of weight" to the fact Mr Danwer was required to undertake case management duties, which involved working individually with offenders to assist them to develop insights into their offending behaviour. Newall C found, in effect, that the employer had not established the connection between Mr Danwer's attitude and his "precise duties" which were said to include working individually with offenders to assist them to develop insights into their offending behaviour. 55However, Mr Grant's decision to dismiss included a concern that Mr Danwer's failure to acknowledge his wrongdoing in committing the offence for which he was convicted was incompatible with the nature of the respondent's calling, which was that of a prison officer who was expected to be a model of pro-social behaviour and to motivate offenders to change. We think that is clear from Mr Grant's affidavit and oral evidence. 56We find Newall C erred in failing to consider whether the respondent's attitude to his guilt and conviction was compatible with his general responsibility as a correctional services officer to exemplify good conduct, to act in a "pro-social manner" thereby encouraging offenders under his charge to change their own behaviour and to demonstrate exemplary conduct when off duty. 57We have considered whether there are any mitigating factors in relation to the respondent's conduct. The evidence about that is not very clear. On the one hand, there was the evidence of Dr Tony Robinson who had a doctorate in clinical psychology and practised as a clinical psychologist. Dr Robinson stated: There is no evidence that Mr Danwer is suffering a psychosexual disorder (ie exhibitionism). It is my thought that if he was acting in an unusual way, it may be explained more by his hyperthyroidism condition that was undiagnosed at the time. 58On the other hand, Dr Robinson said in a later report that Mr Danwer 'has a good understanding of how exhibitionism can affect ...its victims." Further, the respondent had undergone a series of sessions of "focussed psychosexual treatment". 59If there had been reliable medical evidence that the respondent's conduct had been caused or contributed to by mental or physical illness that may have been a factor to be taken into account in mitigation: see Wells and Commissioner of Police [2000] NSWIRComm 157; (2000) 100 IR 106; Bradley Smith v Commissioner of Police (No. 4) [2010] NSWIRComm 14; Fire Brigade Employees' Union of New South Wales (on behalf of Brendan O'Donnell) and Fire & Rescue NSW [2013] NSWIRComm 57. However, there was no medical evidence (a clinical psychologist is not a medical doctor nor a psychiatrist) and even if Dr Robinson's evidence could have been regarded as such, it was inconclusive for the purpose of any consideration about mitigation. 60We do note the magistrate who convicted Mr Danwer of the offence expressed the opinion at the time that the respondent was not likely to re-offend. However, that opinion was not based on medical evidence. Nor was the observation by Colefax DCJ that the respondent's conduct was aberrational. 61Whilst we note there was an expression by the respondent of remorse in his letter to Mr Grant dated 21 November 2012, it was in the following context: I believe that I did not expose my penis to Constable Gosbee but I accept the decision of the court... I have adjusted myself in the public place without ever realising that it could be offensive to others... Now I understand that my behaviour is not acceptable. I am very remorseful about it and now I am extremely careful of my conduct. 62The expression of remorse was not in respect of the conduct for which the respondent was convicted, but rather what he regarded as his behaviour in adjusting himself in a public place without realising it could be offensive. This tends to discount the value of the respondent's remorse. 63We have also had regard to those matters the respondent contended should be taken into account in his favour. That includes his length of unblemished service, his stable family life, his mortgage, the difficulty of finding alternative employment given his criminal conviction and the hardship that it will cause. 64That leads us to the question of whether the Commissioner erred in finding the dismissal of Mr Danwer from his employment was harsh. In doing so, we observe this involves a mixed question of fact and law and not one of an exercise solely of discretion by the tribunal: Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325 at [4] applying Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151; (1999) 88 IR 282 at 181 - 182 and Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at [59] 65As the appellant submitted, whether the dismissal of the respondent was harsh requires the Commission to consider all of the relevant factors and to weigh them in the balance. First, there are those considerations that weigh against a finding of harshness. These are as follows: (a) the gravity of the conduct that led to the conviction. In this case it involved an act of indecency at a music school attended by children in the proximity of a person who, to all outward appearances, was a schoolgirl; (b) the respondent's continued insistence that he did not commit the offence despite accepting the courts' decisions about his guilt and conviction. We note, in this respect, a further appeal would have been available to the respondent but he did not pursue it; (c) by committing the offence the respondent brought discredit upon himself and on Corrective Services which had the effect of undermining the integrity and reputation of the Public Service, contrary to the objects of Pt 2.7 of the PSEM Act; (d) the respondent's conduct in committing the offence for which he was convicted and his attitude whereby he refuses to accept he was guilty of any wrongdoing is incompatible with his duties and responsibilities as a Correctional Services Officer 1. Firstly, it betrays the employer's trust and confidence in him. Secondly, it would be intolerable in a prison environment, where the respondent is required to exemplify good conduct and to act in a "pro-social manner" thereby encouraging offenders under his charge to change their own behaviour, for him to carry out that role in circumstances where he himself engaged in serious antisocial behaviour for which he was convicted, but in respect of which he refuses to acknowledge his guilt; and (e) for the reasons expressed in (d) above, it would undermine public confidence in the prison system and, therefore, it would not be in the public interest and consistent with the objects of Pt 2.7 of the PSEM Act to overturn the decision to dismiss the respondent and to reinstate him as a correctional services officer. 66Those matters that weigh in favour of a finding of harshness are: (a) the loss of a position in the Public Service that the respondent has held for nearly 10 years; (b) the fact that Mr Danwer had an unblemished work record; (c) the fact that Mr Danwer is married and has both a son and a daughter; (d) the fact that Mr Danwer had a mortgage of approximately $500,000 and loss of his employment, should he not be able to obtain alternative employment, will cause hardship for the family; and (e) Mr Danwer's expression of remorse to the extent it has any value. 67On any objective assessment of the factors to be weighed in the balance, those factors that count against a finding that the dismissal was harsh must prevail. Accordingly, we find that Newall C erred in finding the dismissal was harsh. Orders 68The Full Bench makes the following orders: (1) Leave to appeal is granted. (2) The appeal is upheld. (3) The decision given on 27 May 2013 by Newall C in Matter IRC 1241 of 2012 is set aside and the orders quashed. ********** 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: 16 July 2013