Industrial Relations Commission New South Wales Medium Neutral Citation: Neville v Secretary of the Treasury on behalf of Corrective Services NSW [2015] NSWIRComm 1004 Hearing dates: 2, 3, 4 March 2015 Decision date: 17 March 2015 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Appeal dismissed Catchwords: Public sector disciplinary appeal - punishment of reduction in rank –misconduct – facts of misconduct admitted – disciplinary regime protective – specific obligation to record interactions with offenders – express policy – failure to record – failure accepted to be inadvertent not deliberate – obligations to make notes fundamental – failures to record serious whether inadvertent or not – leadership and role model obligations – misconduct established – reduction justified – appeal disallowed. Legislation Cited: Industrial Relations Act 1996 ss. 98, 100B, 100C, 100D Public Sector Employment and Management Act 2002 s 41 Cases Cited: Baster v London County Printing Works (1899) 1 QB 901 Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91 Director General, Department of Ageing, Disability and Homecare v Lambert [2009] NSWCA 102 NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 Secretary, Department of Justice v Schoeman [2014] NSWIRComm 40 Category: Principal judgment Parties: Mr Michael Neville - appellant Secretary of the Treasury on behalf of Corrective Services NSW - respondent Representation: Counsel: Mr S Benson - respondent Solicitors: W G McNally Jones Staff - appellant Crown Solicitor's Office - respondent File Number(s): IRC 991 of 2013 DECISION 1. This is an appeal under Part 7 of the Industrial Relations Act 1996 ('the Act') brought by Mr Michael Neville against the disciplinary decision of the Respondent to reduce him in rank. Such a reduction is, as the respondent appropriately conceded, an appealable decision within the meaning of s.97(1)(b) of the Act. The appeal was brought within the statutory time limit. I observe that the disciplinary sanction was imposed on 4 November 2013. The delay in bringing the appeal to hearing arose from personal illness suffered by Mr Neville, not from any delay in prosecuting the matter by the parties. 2. Mr Neville was subjected to the disciplinary sanction of reduction in rank – specifically, from the rank of District Manager, Level 9/10 to the rank of Senior Community Corrections Officer, Level 7 - for reason of six matters set out in the letter provided to him on 4 November 2013. 3. Those six matters were, in the terms they were put to Mr Neville (modified by deleting the name of the offender in accordance with an earlier order of the Commission in the proceedings): 1. that on completion of duty on 3 March 2010 you used CSNSW Motor Vehicle, Toyota Aurion NSW registration AZ 66 KQ, to attend to private business at the Yoogali Club without authority, as well as visit the address of Offender (blank) before garaging the vehicle overnight at your residence. 2. that on 3 March 2010 you failed to make entries in the running sheet for CSNSW motor vehicle, Toyota Aurion NSW registration AZ 66 KQ, in respect of your use of that vehicle to attend private business at the Yoogali Club, as well as visit the address of Offender (blank) before garaging the vehicle overnight at your residence. 3. that you failed to make case notes in respect of your contact and interaction with Offender (blank) on the evening of 3 March 2010. 4. that on 18 March 2010 you conveyed Offender (blank) from Pioneer Park to the Your Health Medical Centre at 125-127 Yambal Street Griffith via your home address in CSNSW motor vehicle, Toyota Aurion NSW registration AZ 66 KQ, without authority. 5. that on 18 March 2010 you failed to make entries in the running sheet for CSNSW motor vehicle, Toyota Aurion NSW registration AZ 66 KQ, in respect of your use of that vehicle that morning to attend to private business and also conveyed Offender (blank) from Pioneer Park, via your home address, to the Your Health Medical Centre at 125-127 Yambal Street Griffith before returning to the Griffith District Office. 6. that you failed to make case notes in respect of your contact and interactions with Offender (blank) on 18 March 2010. 1. These matters were only brought against Mr Neville after certain allegations were made about him by a client of Corrective Services NSW. The allegations were unproven and I do not give them further unwarranted exposure by repeating them here. 2. Of the six matters brought against Mr Neville, only two were, as the respondent effectively conceded, of sufficient importance to warrant consideration of the disciplinary sanction that was ultimately imposed. 3. They were allegations (iii) and (vi), both of which were to the effect that Mr Neville failed to make case notes about his contact with an offender. 4. The facts of Mr Neville's conduct were not in dispute. Mr Neville immediately and candidly admitted each of the allegations when they were put to him in writing. 5. He also readily conceded that he had a responsibility to make the case notes, and that he knew at the relevant time that he had that responsibility. He said in his first response to the disciplinary allegations, and repeated in his evidence to the Commission, that he simply forgot to record the case notes. 6. Amongst other matters in mitigation, Mr Neville pointed to the fact that the contacts about which he failed to make case notes occurred away from the office, when he had no computer access and therefore no ability to make a contemporaneous case note, and that he had just returned to work after a period of serious illness, and was to a degree struggling to keep up with all his responsibilities, which included numerous important civic responsibilities as well as those of his job. 7. The question before the Commission was therefore in practical terms this: whether Mr Neville's admitted breaches of particular procedural requirements of Corrective Services, and specifically, to fail to make case notes on two occasions, were, viewed in all of their circumstances, sufficient to warrant the disciplinary sanction imposed on him. The applicable jurisprudence 1. It is apparent from subs.100C(2) of the Act that an appeal before the Commission is an appeal de novo. That is, the Commission is to hear and determine the matter afresh on the materials before it, not simply review the decision of the initial decisionmaker: see Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91. 2. The powers exercisable by the Commission are protective, not punitive, in nature: Secretary, Department of Justice v Schoeman [2014] NSWIRComm 40 ('Schoeman No 2') at [73], citing Director General, Department of Ageing, Disability and Homecare v Lambert [2009] NSWCA 102. 3. The terms of the Public Sector Employment and Management Act 2002 ('the PSEMA') governed Mr Neville's employment at the time of the disciplinary sanction against which he appeals. The later enactment of the Government Sector Employment Act 2013 did not affect that statutory position: Schoeman No 2 at [48]. It follows that Section 41 of the PSEMA has application to the present matter. 4. The respondent submitted that the approach to the matter involved the Commission considering for itself the disciplinary sanction imposed, having regard to: 1. the maintenance of appropriate standards of conduct and work-related performance; 2. the protection and enhancement of the integrity and reputation of the Public Service; and 3. the protection of the public interest. 1. In considering this appeal, the Commission is bound to have regard to the matters set out at (i)-(iii) above, which are elements drawn expressly from s.41 of the PSEMA; not, however, as matters standing alone, but as part of the overall consideration of the decision under appeal: Schoeman No 2. The requirement to make case notes 1. As I say above, Mr Neville readily conceded that there was a requirement on him to make case notes about each contact with an offender. 2. That requirement is set out fully and with clarity in Corrective Services' Community Corrections Policy and Procedures Manual. 3. The Manual provides, in the course of an extended discussion of case notes, that they are to be 'a concise and accurate record of an officer's involvement with an offender.' The notes are characterised as 'tools for case management'. They are expressly said to be tools for the making of breach reports, which are reports provided to courts with the responsibility of sentencing offenders. 4. The manual prescribes in terms that an officer is to record a case note after each contact with an offender or significant other. Their content should include specific changes in circumstances which may affect the case plan; examples are given including 'alcohol/substance abuse, relationships, accommodation, employment, treatment programs, and health issues'. The content of the interaction that Mr Neville had with the offender clearly, on his own evidence of those interactions, squarely required that case notes be made. The subject matters of the conversations Mr Neville had with the offender on both occasions, 3 March and 18 March, was material which may very well have been highly relevant to a breach report. 5. Further, the Manual makes it clear that officers may well be questioned in a court of law about the content of their case notes. They are to be documented in 'an accurate and professional manner'. 6. There is in sum no doubt that the recording of case notes is a significant and important obligation of Corrective Services officers who come into contact with offenders. 7. And that responsibility, which falls on all Departmental officers who may come into contact with offenders, was a heightened responsibility for Mr Neville. 8. That is clear from the obligation placed upon him in his position description as District Manager. That required Mr Neville to, amongst other things, manage a District Office in accordance with departmental policy procedures and standards, to ensure the delivery of an efficient and effective administrative and client driven service, to demonstrate the capability of 'taking ownership' of his work responsibilities, and to role model desired behaviours. 9. The first of the 'Key outcomes/accountabilities' imposed on the District Manager in the position description is to 'lead and manage a team in the delivery of operational objectives, in particular the effective management of offenders in the community and the provision of reports to sentencing and releasing authorities.' 10. Read together with the manual, it is clear that the making of case notes, as part of the maintenance of a capacity to provide sentencing and breach reports, was a fundamental obligation and one which the District Manager could not acceptably forget. Effect of forgetting 1. I observe here that I was invited by counsel for the respondent to disbelieve Mr Neville's evidence that he simply forgot to make the case notes. That was put by saying that Mr Neville's account of simply forgetting to make the notes was 'glaringly improbable' or words to that effect. 2. To find that Mr Neville had not forgotten to make the case notes but had deliberately chosen not to make them, which finding would have the effect of a finding that he had told an untruth about that matter to both his employer and the Commission, would be a very serious finding. It would need to be made out to a 'comfortable level of satisfaction': NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123, Evidence Act 1995 s.140. It could not be made on inferences. 3. I do not make that finding. Indeed, I found Mr Neville to be a witness of truth. I accept that Mr Neville was, in circumstances where he had just returned to a demanding job from a period of serious illness, under considerable pressure, and that in those circumstances it may well have been that he forgot, on returning to the office, to record the case notes. It is apparent that Mr Neville is an officer with a higher than average work ethic and a man prepared to accept a high level of civic and community responsibility. 4. Nevertheless, the making of case notes was demonstrably a matter of fundamental importance. As I set out above, it was doubly important for Mr Neville to remember to make these case notes, as he had not only the responsibility that fell on every officer to make 'accurate and professional' case notes, but he had the responsibility of leadership, indeed to be a role model in a professional sense to others. That responsibility is what goes with the position and the salary of a District Manager Grade 9/10. 5. In those circumstances, while I accept that his failure to make the case notes was inadvertent and was a matter of forgetfulness and not otherwise, that forgetfulness cannot be regarded as a trivial matter. 6. To forget to do something which it was important to do, in the context of one's employment, and which may have serious consequences to the employer, is itself a serious matter: Baster v London County Printing Works (1899) 1 QB 901. Such forgetfulness may warrant dismissal. That was not, of course, the sanction imposed here. 7. But here, where Mr Neville had a personal and a leadership responsibility to attend to making the notes, the forgetfulness was serious. It was serious in the context that any failure to make case notes may have in turn serious consequences for Corrective Services, for any employee of Corrective Services, for the clients of Corrective Services, for the courts, and, through the sentencing process, for the public. The evidence was, unsurprisingly, that courts give real weight to the reports provided to them by Corrective Services officers in respect of offenders before the court concerned. An accurate or inaccurate case report might be the difference between a jail sentence and some other punishment. 8. In those circumstances, a failure to keep important records has a capacity to act adversely upon the reputation of the Public Service and potentially adversely to the public interest. Appropriate standards of work-related conduct are not met if these important notes are not made. 9. In these circumstances the decision to impose the specific disciplinary sanction imposed on Mr Neville was not incorrect. Accordingly, it does not warrant being overturned on appeal. 10. I have of course had regard to the impact of the decision on Mr Neville and his family, even though I do so in the context of a protective rather than a punitive jurisdiction. 11. The reduction in rank has, because he works in a regional area, a more disruptive effect on Mr Neville both now and in the future than if he worked in Sydney. There are in my view circumstances in which employees in rural and regional areas should be treated differently to those in Sydney, and in which the impact of a disciplinary sanction, whether dismissal or something else, might be weighed differently because of its heightened effect on a rural or regional employee. But in this case, while the effect on Mr Neville is significant, the disciplinary sanction imposed cannot be seen to be wrong. The Assistant Commissioner's decision ought not be overturned. Orders 1. The Orders that the Commission makes in this matter is as follows: 1. The appeal is disallowed. PETER NEWALL Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 March 2015