Industrial Relations Commission New South Wales Medium Neutral Citation: Fraser v Corrective Services NSW [2014] NSWIRComm 21 Hearing dates: 14-15 April 2014 Decision date: 03 June 2014 Jurisdiction: Industrial Relations Commission Before: Harrison DP Decision: (1) Pursuant to section 89 (1) of the Industrial Relations Act 1996 Corrective Services NSW is ordered to reinstate Mr Steven Fraser 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 Corrective Services NSW is ordered to pay to Mr Steven Fraser 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 Steven Fraser by Corrective Services NSW is taken not to have been broken by the dismissal. Catchwords: UNFAIR DISMISSAL - Allegations of misconduct. Held - Internal investigation fatally flawed - Evidence does not support allegations - Finding that conduct alleged did not occur - Termination harsh, unreasonable and unjust - Reinstatement ordered with no loss of wages or continuity of employment . Legislation Cited: Industrial Relations Act 1996 Cases Cited: Corrective Services NSW ats Danwer [2013] NSWIRComm 61; NSW Attorney General's Department v Miller (2006) 160 IR 185; Director of Public Employment v PSA (on behalf of Brown) 2008 184 IR 134; Commissioner of Corrective Services v Dezfouli [2008] NSWADTAP 8 Bradley George Hosemans v Commissioner of Police [2004] NSWIRComm 253 Category: Principal judgment Parties: Steven Fraser (Applicant) Corrective Services NSW (Respondent) Representation: Mr R Reitano (Applicant) Mr S Benson (Respondent) W G McNally Jones Staff (Applicant) File Number(s): IRC 823 of 2013 DECISION 1Mr Steven Fraser was employed as a Corrections Officer by Corrective Services New South Wales (the Employer) for 26 years from 4 March 1987 to 26 September 2013. 2Mr Fraser was dismissed from employment on the basis of an opinion formed by the employer that he had inappropriate sexual contact with an inmate identified as Ms Slacke. 3Mr Fraser denies such conduct occurred and challenges the termination of his employment, seeking full reinstatement with no loss of wages or continuity of service. 4The application was filed within time. 5The matter was not able to be resolved in conciliation and proceeded to arbitration. 6Mr Reitano of Counsel appeared for Mr Fraser and brought evidence from Mr Stephen White, a Correctional Officer, and from Mr Fraser. 7Mr Benson of counsel appeared for the Employer and brought evidence from Ms Slacke, Ms Leanne Matthews, a Casual Court Security Officer, and Mr Andrew Snedden, Senior Assistant Superintendent, Investigations Branch, Long Bay Correctional Complex. 8The specific allegations of misconduct made against Mr Fraser are: (1) On 11 May 2012 whilst in the process of putting handcuffs on Ms Slacke he touched her left breast. (2) On 11 May 2012 whilst Ms Slacke was being placed in transport to convey her from Taree cells to Port Macquarie he groped her buttocks. There are other undeveloped allegations that Mr Fraser had inappropriate communication with Ms Slacke, including a a request that she "show him her boobs". (3) On 7 July 2012 he approached Ms Slacke outside Taree Courthouse asserting that he had looked her up on the internal systems to know when she would be at the court again so he could see her. It is alleged Mr Fraser asked her to dinner, sought her telephone number and kissed her on the cheek. 9The evidence establishes that Mr Fraser, Officer White and Officer Matthews were together on 11 May 2012. Their tasks that day included taking two inmates from Port Macquarie cells to Taree for court proceedings and return. 10Officer White's evidence is that he first heard of an issue in about June 2012 when he overheard a conversation between Senior Assistant Superintendent Leanne Cook and Casual Correctional Officer Emma Stewart that Mr Fraser had "touched up" a female inmate at Taree when he was working with her. 11Officer White did not enter the conversation, deposing that he checked the roster to confirm he was there on the day concerned, verified that he was, and dismissed the matter, which he described as "bullshit" because rumours were rife in the office. 12The evidence establishes that the conversation overheard by Officer White had its origin in an earlier discussion described by Officer Matthews in her statement of evidence (Ex 11) in the following terms (par 8): 8. In June 2012 whilst I was working at the Taree court cells I was having a conversation with Officer Emma Stewart and SCO Peter Stace in the office area and Officer Frasers name was mentioned. I said, "if I tell you something, can this stay here". SCO Stace said, "that depends on what you tell me". I then directed my conversation at Officer Stewart because she is a female and I wanted to make her aware of Officer Frasers behaviour with female inmates and to keep an eye on him. I felt I needed to unload what I had witnessed and tell someone as I was distressed by what had occurred. 13Officer Stewart's report to the Senior Assistant Superintendent led to the investigation, charges and dismissal of Mr Fraser. 14In the course of the investigation Mr Fraser maintained his denial of the conduct concerned, putting to the investigator that the entire matter was a malicious attack on him, being a vendetta arising from an altercation between himself and another officer, identified as Officer King. 15Mr Fraser noted that the alleged conversation between Officers Stewart, Stace and Matthews took place in June 2012. Officer Stewart did not put in a report on the matter until 24 October 2012, the day after Officer King was removed from the roster as a consequence of the altercation with Mr Fraser. 16In his interview of 31 July 3013 Mr Fraser referred to a letter from Officer Stace (Ex 9 p 17) denying that he participated in a conversation with Officers Stewart and Matthews as suggested. 17Officers Stewart and Stace were not called to give evidence. 18Mr Sneddon confirmed that Mr Fraser offered the defence that the altercation with Officer King was behind the accusation, however, he had refused to investigate this or pursue that line of enquiry as he considered it a separate matter. 19In cross examination Officer Matthews conceded that she regarded the pursuit of allegations against Mr Fraser and a request from Senior Assistant Superintendent Mr Grahame Sundin that she provide a formal report on the events of 11 May 2012, a week after the King/Fraser altercation, as too much of a coincidence. 20There are a number of matters which give rise to concern over the investigation in addition to the failure to examine a line of defence offered by Mr Fraser. The explanation given is that Officer White was not identified in the brief received from Manager of Security, Brian Cullen, and Officer Matthews told him that Officer White did not directly see anything. 21The matters of concern are: (1)Failure to interview Officer White who was a direct participant; (2)Affording inappropriate weight to the advice from Officer Matthews that she did not actually see anything but was only suspicious; (3)The interview of Officer Emma Stewart, who was not present, on the accuracy of any of the allegations; (4)Failure to specify the conduct alleged; (5)Finding that allegations of misconduct were sustained without any reasoning or consideration of credibility; (6)Failure to undertake any sort of investigation into the defence offered by Mr Fraser; (7)The approach to Ms Slacke, three days prior to her preparing her statement for the investigation, informing her that the investigator was aware of inappropriate touching and behaviour toward her. This approach was not an open enquiry of Ms Slacke and as such carries the difficulty of being suggestive to her. 22Ms Slacke deposed that when asked about the event by the investigator she could recall Mr Fraser's name from the badge worn by him whilst on duty. 23In cross examination Mr Reitano put the proposition to Ms Slacke that she had been talking to Officer Matthews in the precinct of the Commission prior to giving her evidence. 24Ms Slacke refuted this proposition, asserting that she did not know who Officer Matthews was, and could not recall what the female officer who escorted her from the cells at Taree looked like. 25I find it highly improbable that Ms Slacke has such a clear recollection of Mr Fraser and none at all of Officer Matthews. 26Mr Fraser makes further assertions that Mr Cullen and Mr Sundin were out to get him removed from the position at Port Macquarie cells. 27Mr Fraser supports this by reference to an aggressive attitude toward him on his return to Port Macquarie cells in August 2010 and a recommendation by Mr Cullen that Mr Fraser be removed from Port Macquarie cells prior to any issues arising in respect to inmate Slacke. 28Mr Fraser contends that the motivation of this recommendation and the current charges against him were to remove him to allow Officer King to return. 29It is however somewhat disturbing that the now disputed conversation between Officers Matthews, Stace and Stewart did not lead to any action until after Officer King was removed from the roster. 30It is of deep concern that there was no investigation of the King incident and its proximity to action against Mr Fraser. 31There is further cause for disquiet arising from the manner in which the report was requested by Mr Sundin. Officer Matthews was reluctant to do such a report and only did so when she was afforded three hours paid time to complete it. Mr Sundin then directed her to refrain from posting or emailing the report, rather he drove from his base in Grafton to Ms Matthew's residence in Forster to collect it. The reason for this remains unexplained. 32Officer Matthews' reluctance to file a report and her decision to do nothing other than make a contemporaneous note is inconsistent with the concern expressed to Ms Stewart. Employment Record of Mr Fraser 33Mr Benson put that Mr Fraser's record of employment is not unblemished and submitted that in assessing the balance of probability, consideration should be given to those aspects of his conduct which involve seriously inappropriate behaviour. 34Mr Reitano strenuously opposed such consideration, putting that in 26 years' service Mr Fraser had been subject to commendation, was a good officer, and that the issues of seriously inappropriate behaviour were overstated by Mr Benson. 35The first of the issues relied upon by Mr Benson was an incident in which Mr Fraser was arranging mattresses to afford a female inmate some privacy whilst she was preparing to shower. It is alleged that Mr Fraser said words to the effect: "Don't worry I've seen them before", referring to the inmate's breasts, to which the inmate replied: "Well you are not seeing mine". 36There was, on the evidence in this matter, nothing more to it. There were some other issues of interpersonal difficulty with other staff and superiors. 37Mr Fraser was disciplined and put on a performance management plan, signed off by he and senior management on 17 November 2010 (Ex 4). 38A review of the Performance Management Plan was signed by Mr Fraser and senior management in December 2010 (Ex 5), which records that Mr Fraser had met all requirements of him. 39The comment in respect to interaction with female offenders states: "Mr Fraser is abiding with the standards required. His interaction with female staff have been respectful and of good standard. There have been no reports to suggest otherwise". 40Mr Benson further submitted that weight be given to an event in early February 2011 when Mr Fraser entered the staff meal room and addressed all present with the comment: "Hey lesbians". 41Mr Fraser accepts that this was an inappropriate, sexist and discriminatory comment. 42The circumstances involved only staff and whilst properly considered inappropriate, improper and foolish, it does not assist with a consideration of conduct towards a female inmate subject to consideration in these proceedings. 43On 10 May 2010 Officer Emma Stewart filed a complaint against Mr Fraser to General Manager Judy Leyshon (Ex 12, p 79) in which she asserts that: "On Monday 3rd May 2010 I was at Port Macquarie Cells with 1/C Officer Fraser, I was sitting in a seat and I had my legs on a chair, I felt Officer Fraser lift my pants & rub my left leg, this action startled me as I was not looking at him, I asked Officer Fraser "What the fuck are you doing" he replied "I am just checking if you have hairs". This threw me into shock & I didn't know what to do at the time, I was embarrassed as TCSO Mick Kelly witnessed the event. On Tuesday the 3rd during a casual conversation with SAS Cook I told her of the events that had happened the day before & advised her that I didn't want any actions to be taken as I am a new Officer to the unit & I didn't want any repercussion or jeopardise my working within this unit. I respectfully request this report remain confidential due to the nature & to ensure no retribution." 44Mr Fraser denies the event ever occurred, deposing that it is a complete fabrication. There is no evidence from Officer Stewart or the alleged witness, nor would it appear any attempt by the investigator included in his report to verify the allegation. 45The allegation was never raised with Mr Fraser and accordingly he had no opportunity to address the allegation; however, it is part of the body of material now held against him and put in these proceedings as evidence of his propensity to act inappropriately with females. 46I find this unfair and somewhat curious, given that there was allegedly a witness to the event. 47Mr Fraser's credibility was also challenged on the basis that he had been given a letter of warning on 29 June 2007 (Ex 2) in respect to evidence before a Parole Board. 48I do not consider this to be of assistance. 49Mr Benson submitted that minor variations in the detail and characterisation of events between Ms Slacke and Officer Matthews should not be of concern, having regard to the fact that neither Ms Slacke nor Officer Matthews have discussed the events and that as the victim Ms Slack could be expected to have a clear memory of the sexual acts of touching her breast and being "chatted up in sexually explicit terms". 50Mr Benson submitted that the failure of a contemporaneous complaint is appropriately explained by all of the other issues facing Ms Slacke and the position of authority held by the Correctional Officer. 51Mr Benson submitted that there are no material differences or suggestion of any conspiracy between Ms Slacke and Officer Matthews to discount the credibility of their evidence. 52Mr Benson submitted that there is no evidence to give substance to the assertion that there is a vendetta against Mr Fraser. 53Mr Benson put that the gravity of the two allegations of inappropriate physical contact in a sexual manner is sufficient to justify dismissal. 54Mr Benson noted that it is not disputed that Mr Fraser was a public employee to whom the Public Sector Management Act 2002 ("the Public Sector Act") applied. 55Mr Benson submitted that the disciplinary action taken was consistent with s 42 and s 46 of the Public Sector Act. 56Mr Benson noted that the disciplinary provisions of the Public Sector Act are protective rather than punitive, submitting that the legislative intent is to protect the public and uphold the integrity of the NSW Public Service. 57The application of the Public Sector Act is not in question. The issue here is whether the conduct alleged occurred. 58If it did, then dismissal would not be harsh, unreasonable or unjust. 59If the conduct did not occur there is no basis for disciplinary action. 60Mr Benson defended the investigative process, noting that at the preliminary stage it was not possible to further particularise the allegation as the investigation was founded essentially from the reports of Officer Stewart, which he acknowledged was second hand hearsay. 61Mr Benson put that any further detail would not have helped Mr Fraser, who was well able to understand what he was accused of; and further the investigation was unaware of the "court house steps" allegation at the time. 62Mr Benson further submitted that the decision of the investigator, Mr Sneddon, not to interview Officer White did not constitute procedural unfairness; and the decision not to investigate the conspiracy theory was properly open to the investigator. 63 Mr Benson further put that Ms Slacke's version of events should be accepted as she is the only witness not involved in whatever local politics may have been going on amongst staff at the Port Macquarie Escort Security Unit, and that she had no reason to fabricate her account of Mr Fraser's conduct. 64Mr Benson submitted that having regard to Mr Fraser's record, his evidence should not be accepted without independent, reliable corroboration. 65Mr Benson submitted that Officer White did not constitute a reliable, independent witness due to his record of employment, association with Mr Fraser, and the real possibility that he was not looking at the particular moment the incident is said to have occurred. 66Mr Benson relied upon a number of authorities to establish the duty of care afforded to inmates: Corrective Services NSW ats Danwer [2013] NSWIRComm 61; NSW Attorney General's Department v Miller (2006) 160 IR 185; Director of Public Employment v PSA (on behalf of Brown) 2008 184 IR 134; Commissioner of Corrective Services v Dezfouli [2008] NSWADTAP 85. 67Mr Reitano put that the inconsistencies in the evidence against Mr Fraser could not be characterised as minor or insignificant as Mr Benson sought to do. 68Mr Reitano put that the onus does not rest on him to develop a motive for Ms Slacke to be untruthful, however, he noted the evidence of Mr Sneddon that Mr Fraser had "information" that someone from the Department had approached Ms Slacke prior to Mr Sneddon (Ex 12 par 47). 69Neither Ms Slacke nor Mr Fraser was cross examined on this assertion. 70Mr Reitano relied on Bradley George Hosemans v Commissioner of Police [2004] NSWIRComm 253 for the proposition that where a general denial is made it is incumbent upon the accuser to call evidence probative of each allegation; which he put the respondent here failed to do. The Handcuffing Allegation 71Mr Fraser's evidence is that he knelt down and put both arms through the cuffing hatch to demonstrate to Ms Slacke how he required her to put her wrists. Mr Fraser conceded he probably said words to the effect: "This is what I want you to do for me". 72The cuffing hatch is depicted in photographs attached to the statement of Officer White (Ex 6). These photographs show the cuffing hatch to be a heavy steel frame in an otherwise transparent door, located in the lower quarter of the door below hip height of the Officer depicted in one of the photographs. The hatch would appear to be 24.5 cm wide by 9 cm in height. Mr Reitano conveniently provided these measurements in Ex 15. 73 Officer Matthews' evidence, outlined in her Statement, is (Ex 11, pars 4 and 5): 4. As I walked toward the holding cell I heard Officer Fraser say, "see what you do to me". I then observed Officer Fraser to be on his knees with both his arms in the door slot past his elbows. Despite Officer Fraser being aware of my presence Officer Fraser continued to keep his arms in the slot up to his elbows and continue cuffing inmate SLACKE. This seemed unusual to me as I have never seen anyone else apply cuffs to an inmate in this manner before nor have I ever applied them myself in this way. My first thought as I saw this was that Officer Fraser was behaving inappropriately with a female prisoner. 5. To the best of my recollection I remained present until we left the area together. For the remainder of my shift each time Officer Fraser attended the holding cell area I accompanied him as I had concerns he may act inappropriately. We then proceeded to load the inmates onto the escort vehicle which was located in the van dock as it is known. We then placed the male inmate on the escort vehicle and I then left Officer Fraser at the vehicle whilst I went to the holding cell to retrieve inmate SLACKE. 74Ms Slacke's evidence in respect to this event is deposed in her Statement (Ex 10, pars 7 and 8): 7. He also said, "you have a nice butt and you was too good looking and too nice of a person to be locked up here". I recall when he was placing the hand cuffs on me that day at the cells, I put both my hands through the cell door hatch and he placed the cuffs on me. He let go of them and reached through with his right hand and touched me on the left breast. 8. At that moment I saw a female correctional officer on my right coming around the corner and Officer Fraser quickly withdrew his hand from the hatch in the cell door. I could tell that the female officer saw that something was going on by the way she looked and then turned to have closer look. She did not say anything and turned to walk back up the corridor. I remember him saying something like, "I would like to do more with you and with these cuffs". I recall saying, "I bet you would you dirty cunt". When I said this it was with a nervous giggle he kind of laughed back. He kept staring at me which continually made me feel uncomfortable. It made me feel bad and I pulled away. I felt helpless and shameful because he is an officer and in charge. Officer Fraser walked quickly away to join the female officer. 75Ms Slacke's evidence is that this conversation took place while Officer Matthews was present. 76Officer Matthew's evidence is that she did not hear any conversation, only Mr Fraser saying what she thought was: "Look what you do to me". 77Officer Matthews was close enough to hear if anything was said, her evidence does not include reference to any other indistinguishable comment or conversation, which, in my view, supports the denial by Mr Fraser. 78In cross examination (TR 14/4/14 p75) Ms Slacke conceded that she could not remember whether she had the handcuffs on or not when Mr Fraser touched her breast. 79There are significant discrepancies between the evidence of Officer Matthews and Ms Slacke. 80Officer Matthews confirms the evidence of Mr Fraser that he had his arms through the hatch, whilst Ms Slacke deposed that she had her arms out through the hatch. 81Officer Matthews was present in the area when Ms Slacke alleges Mr Fraser put one hand through the hatch to touch her on the breast. 82It is highly improbably that anyone would undertake that sort of conduct whilst knowingly being observed. There is nothing in the evidence of Officer Matthews which supports Ms Slacke's version of events. Further, having regard to the size of the cuffing hatch, it is difficult to accept that it is physically possible, had Ms Slacke had both hands through the hatch, with handcuffs on, that Mr Fraser could have put a hand through the available space. 83On the balance of probability I prefer the version of events of Mr Fraser, corroborated by the evidence of Officer Matthews, that Mr Fraser's arms were through the hatch and she did not see him touch Ms Slacke. 84The fact that Officer Matthews did not act on her suspicions, even to ask Ms Slacke if she was comfortable or okay, further supports a conclusion favouring Mr Fraser's testimony. The Transport Allegation 85It is alleged that when putting Ms Slacke into the transport to return her to Port Macquarie Mr Fraser grabbed her buttocks. 86Mr Fraser denies this occurred. 87Officer Matthews' evidence is (Ex 11, pars 5 and 6): 5. To the best of my recollection I remained present until we left the area together. For the remainder of my shift each time Officer Fraser attended the holding cell area I accompanied him as I had concerns he may act inappropriately. We then proceeded to load the inmates onto the escort vehicle which was located in the van dock as it is known. We then placed the inmate on the escort vehicle and I then left Officer Fraser at the vehicle whilst I went to the holding cell to retrieve inmate SLACKE. 6. Officer Steven White and I walked inmate SLACKE to one of the side compartments and Officer Fraser was already standing there waiting. I remained within a meter behind inmate SLACKE as she walked towards Officer Fraser who was standing at the open door of the compartment. Inmate SLACKE turned to step up and into the compartment and as she did she placed her foot up on the step. At this point I observed Officer Fraser to move his hand in an under and upward direction at a quick speed appearing to be grabbing at the buttocks area possibly the vaginal area of inmate SLACKE. My view was obstructed by something that prevented me actually seeing the connection however my suspicion is that a connection was made. I observed Officer Fraser giggle as this occurred. 88Ms Slacke's evidence in respect to this event is (Ex 10, par 9): 9. The tone of voice he used when he said these words to me was of a normal sounding conversational tone that only we could hear. I remember him returning to talk to me later but the female officer kept following him and watching what he was doing. Later he came and got me to get on the truck to go back to the Mid North Coast Correctional Centre. I walked with him to the side of the truck and went to get on. I ducked my head and stepped up and I felt his right hand on my left buttocks. I felt his fingers digging into my buttocks, in fact he was grabbing it. It was unnecessary as I could easily get into the truck and have never needed help before. When he did this I turned my head and glared at Officer Frazer. I was disgusted as if how dare you take advantage of me. At no stage did I give him permission to touch me or ask for any assistance. The touching of my buttocks by this person made me feel offended and dumbfounded. [Emphasis added] 89The Incident/Witness Report of Officer Stewart, dated 24 October 24, found as an attachment to the statement of Mr Sneddon (Ex 12 p 47), describes the event as reported to her by Officer Matthews: "At approximately 12.00pm on 26/June/2012 I was carrying out my duties as Taree Court Officer when the following incident occurred: Whilst performing my duties at Taree court I was having a conversation with TSCO Leanne Matthews and SCO Peter Stace during the conversation with Officer Matthews she told me that on a previous date she had witnessed inappropriate behaviour from Officer Steven Fraser towards a female inmate. Leanne informed me that Officer Fraser was down on his knees with his arms fully in the hatch and appeared to be laughing with the inmate. Leanne said whilst they were placing the inmate on the truck she witnessed Officer Fraser grab the female inmate on the buttocks, the female then turned and laughed at Officer Fraser. I then said something like, I cannot believe Fras is acting like that. I cannot recall what Officer Stace said during the conversation." 90The mention of laughter is not found in Officer Matthews' evidence and is denied by Ms Slacke, suggesting an embellishment of the event either by Officer Matthews to Officer Stewart or by Officer Stewart herself. 91Officer White's evidence is (Ex 6 par 6): 6. On this day, we were taking inmates from Taree court cells back to Port Macquarie Police Cells. Steve had gone to the cells with Leanne to cuff the inmates and he brought the male inmate first. The male inmate was placed into the middle pod of the prison van. I walked the female inmate with Leanne and Steve Fraser was already at the truck. When we got her to truck, Steve was standing between the front and middle pods. Leanne stopped at the front of the truck. I walked towards the rear and stood watching as the inmate boarded the van. Steve did not touch her as she boarded the van. As she stepped up into the van I saw Steve step forward and shut the wire inner door and I closed and locked the solid outer door. 92In cross examination Officer White was unshaken in his evidence that he had a close view of Ms Slacke and Mr Fraser while Ms Slacke climbed into the transport unaided. Officer White was challenged on this. The transcript records (TR 14/4/14 p52): Q. So what I want to put to you is you walked past Mr Fraser, there was no need for you to continue to observe what was happening because Mr Fraser and Officer Matthews had it under control, and you didn't observe Ms Slacke arrive into the vehicle? A. I did observe her getting into the vehicle, as I said I had set routine that I do after an incident I was involved in some time ago when I'm loading a truck, to make sure the prisoners are on that truck. 93In light of this evidence it is difficult to accept Ms Slacke's evidence. 94Mr Fraser did not collect Ms Slacke from the cells, Officer White did. Officer White observed the entire event. Officer Matthews' evidence goes no further than she was suspicious; however, she is at pains to be clear that she did not see Mr Fraser touch Ms Slacke. 95I prefer the evidence of Mr Fraser and Officer White. The fact that Officer Matthews did not act on her suspicions at the time, at least by an enquiry to Officer White as to "what went on there" is cause for disquiet. 96Officer Matthews is hostile to Mr Fraser; however, her evidence, which I accept as truthful, supports that of Mr Fraser and Officer White that Mr Fraser did not collect Ms Slacke from the cell. 97It was suggested that Officer White is a friend of Mr Fraser and would support him on that basis. This assertion is not made out. The evidence is that they have met socially only twice in a number of years; once when Mr Fraser attended Officer White's 40th birthday party in response to an invitation to all staff posted on the notice board; and once when Officer White attended a hotel in Mr Fraser's neighbourhood to hear a band and Mr Fraser happened to be there. 98I accept Officer White's evidence as truthful and without bias. 99The objectivity of Officer White's evidence is supported by the fact that when asked by Officer Matthews what she should do when asked for a report, Officer White made no attempt at any time to dissuade her from putting in the report. The Court House Steps Allegation 100In consideration of a vagueness in respect to dates, the evidence of Ms Slacke is that a couple of days after she was released from Silverwater Correctional Centre she was required to attend Taree Court House. 101She was not there on 7 July 2012. 102She was released on 7 July 2012 (Ex 12 p 37), was returned to custody on 7 September 2012 to Mid North Coast Correctional Centre and released the next day, 8 September 2012. 103Ms Slacke's evidence in respect to this allegation is (Ex 10, pars 10, 11, 12): 10. I remember after getting out of gaol a couple of days after 7 July 2012 that I had to appear at Taree Local Court. I was standing out the front of the court house having a cigarette on a brown bench seat and Officer Fraser came up to me. He was in his uniform and he sat beside me. He said, "I have been looking you up on the computer system to find out where you were going to court next. I am trying my hardest to make sure that I would be at the court house on the days you went to court so I could see you again:. 11. I said, "What for I've got a man even though he's locked up:. He said, "Yeah, there you go see he's locked up, give us your phone number". I said, "Nah, I'm not giving you my number". He said, "I go up to Kempsey sometimes, I could take you out to lunch or dinner". I said, "Nah, I'm not going to do that, I'm faithful even though he's locked up". Officer Fraser said, "What is happening today at court", I said, "It's just an adjournment". 12. Officer Fraser then lent in and gave me a kiss on the left cheek and placed his left hand on my right shoulder. Right before he kissed me on the cheek he looked around as if to see if anyone was watching and as though he knew he shouldn't be doing it. He then walked away. 104Mr Fraser denies this event took place. 105He is supported in his denial by the fact that on 7 July 2012 Ms Slacke was still in custody in Sydney. 106The Taree court lists for 7 July 2012 (Ex 13) tendered by Mr Reitano show that Ms Slacke's case was not dealt with on that day whilst she was still in custody. Ms Slacke acknowledged that she would have participated by video link. The Taree court lists do not show Ms Slacke appearing again until 8 August 2012. 107At the conclusion of arbitration proceedings Mr Benson sought and was granted leave to make further enquiries of the Taree Court Registry and the capacity to put further submissions by 22 April 2014. 108Correspondence was subsequently received advising that the Respondent would not file any further material. 109Mr Fraser and Ms Slacke were not at Taree Court on the same day after her release from Silverwater Correctional Centre until 8 August 2012. This was not immediately after her release, as put by Ms Slacke. There is nothing to support the allegation. 110On a consideration of the credibility of Ms Slacke and Mr Fraser, I prefer that of Mr Fraser having regard to the inconsistencies evident in the earlier allegation as detailed above. 111The evidence of Ms Slacke is beset with inconsistency and cannot be accepted. 112There is no evidence of Mr Fraser having accessed Ms Slacke's records with the internal information system to support the allegation made. 113The evidence of Officer Matthews lacks substance, being no more than her suspicions and concerns. The only point on which Officer Matthews is crystal clear is that she did not see Mr Fraser touch Ms Slacke. 114The evidence of Officer White is unequivocal and unshaken in supporting the denial of conduct by Mr Fraser. 115I regard the internal investigation to be fatally flawed for failure to investigate the defence offered by Mr Fraser, the absence of reasons for finding the allegations sustained, and the inconsistencies detailed above. CONCLUSION 116I conclude that Mr Fraser is not guilty of the conduct alleged and consequently termination of employment is harsh, unreasonable and unjust. 117I order reinstatement with no loss of wages or continuity of service. ORDERS 118I make the following orders: (1)Pursuant to section 89 (1) of the Industrial Relations Act 1996 Corrective Services NSW is ordered to reinstate Mr Steven Fraser 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 Corrective Services NSW is ordered to pay to Mr Steven Fraser 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 Steven Fraser by Corrective Services NSW is taken not to have been broken by the dismissal. I so order. R W Harrison Deputy President 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: 03 June 2014