Industrial Relations Commission New South Wales Medium Neutral Citation: Hansen v Secretary of the Department of Transport – as head of the Transport Service and exercising the employer function of staff of Roads and Maritime Services [2016] NSWIRComm 1011 Hearing dates: 2 & 3 March 2016 Date of orders: 30 March 2016 Decision date: 30 March 2016 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The unfair dismissal application by Paul Anthony Hansen is dismissed. Catchwords: UNFAIR DISMISSAL – out-of-hours conduct – criminal convictions – possession of child abuse material – act of indecency towards a person under the age of sixteen – whether a direct connection between the criminal activity and the person's employment is necessary to justify dismissal – whether repudiation of the employment contract is necessary to justify dismissal – relevance of common law principles to public sector employment – gravity or seriousness of the misconduct – conduct involving the sexual exploitation and abuse of children – breaches of the Code of Conduct – behave in a lawful manner – not bring employer into disrepute – dismissal not unreasonable or unjust – procedural issues – no opportunity to be heard prior to decision to dismiss – failure to afford procedural fairness did not render dismissal unfair – factors weighing in favour of finding of harshness considered – seriousness of applicant's conduct – dismissal not harsh – giving of untruthful evidence – further basis for refusing discretionary relief – application dismissed Legislation Cited: Criminal Code Act 1995 (Cth) Industrial Relations Act 1996 Public Sector Employment and Management Act 2002 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Transport Administration Act 1988 Transport Administration (Staff) Regulation 2012 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Byrne v Australian Airlines Ltd, Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 Appellant v Respondent (1999) 89 IR 407 Farquharson v Qantas Ltd (2006) 155 IR 22 Kevin Cooper v Australian Taxation Office ([2015] FWCFB 868) Rose v Telstra Corporation Ltd - unreported, Print Q9292, Dec 1444/98, 4 December 1998 Kevin Cooper v Australian Taxation Office ([2014] FWC 7551) Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 New South Wales Attorney-General's Department v Miller (2007) 160 IR 185 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 Public Employment Office Department of Attorney General and Justice (Corrective Services NSW) v Silling [2012] NSWIRComm 118 (31 October 2012) Corrective Services NSW v Danwer [2013] NSWIRComm 61 (16 July 2013) Lawrance v Commissioner of Police [2010] NSWIRComm 149 (12 November 2010) Silling v Corrective Services NSW [2011] NSWIRComm 1056 (16 December 2011) Shonit Kumar Danwer v Corrective Services NSW [2013] NSWIRComm 1009 (27 May 2013) Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 Heugh v Central Petroleum Ltd (No 5) [2014] WASC 311 Category: Principal judgment Parties: Paul Anthony Hansen (Applicant) Roads and Maritime Services (Respondent) Representation: Counsel: P Moorhouse (Applicant) Solicitors: Dribbus Kovacevic Lawyers (Applicant) Henry Davis York (Respondent) File Number(s): 2015/367273 (IRC 921 of 2015) DECISION 1. The applicant, Paul Anthony Hansen, has made an application for relief in relation to unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ('the Act') following the termination of his employment by Mr Gregory Evans, Director Asset Maintenance, at Roads and Maritime Services ('RMS') on 2 October 2015. 2. The respondent, RMS, is constituted as a corporation by section 46 of the Transport Administration Act 1988 ('the TA Act'). RMS is a NSW Government agency. Section 68C of the TA Act provides that the Government may employ persons in the Transport Service to enable RMS, and other transport entities, to exercise their functions. The applicant was such an employee. As such, the provisions of the Transport Administration (Staff) Regulation 2012 ('the TAS Regulation') applied to the employment of the applicant. Background to the dismissal 1. The applicant was initially employed by the Department of Main Roads in 1982 as an apprentice plant mechanic. He was continually employed from that time by RMS, or its predecessors, until he was dismissed on 2 October 2015. The applicant is a qualified plant mechanic. At the time of his dismissal the applicant held the position of Fleet Inspector, Sydney/Southern, based at the RMS depot at Bellambi, now known as Russellvale, in the Illawarra region. Prior to the matters which led to the applicant's dismissal, he had not been the subject of any disciplinary proceeding. 2. The applicant is a 52 year old married man with no dependent children. 3. On 20 May 2012 the applicant was engaged in an online chat on his computer with a person whom he believed to be a 14 year old girl named Haley. Haley was, in fact, a Detective Senior Constable of Task Force Argos, Child Safety and Sexual Crimes Group, within the Crimes Operation Command of the Queensland Police Force. During that online conversation, the applicant transmitted to Hayley a video and photo of himself which would ultimately lead to him being charged with, and convicted of, a breach of section 474.27A(1) of the Criminal Code Act 1995 (Cth) in that he did use a carriage service to send indecent material to a person under 16 years of age. 4. For the next two years and three months the applicant remained unaware that, on 20 May 2012, he had been chatting with, and had sent indecent material to, a police officer rather than, as he thought, a fourteen year old girl. 5. On 4 August 2014 officers of the NSW Police Force executed a search warrant on the applicant's residence and took possession of a number of items, including four which were described in the police fact sheet as a "Cruzer 2 GB drive", an "Imation 8 GB USB drive", a "Hard drive-Asus" and a "HP Laptop". The first and second items were located in the RMS vehicle which had been allocated to the applicant for work purposes. The third and fourth items were located in the applicant's residence. All four devices contained pornographic videos and/or images of persons under the age of 16 years. 6. Following the execution of the search warrant on the applicant's residence, but on the same day, the applicant notified his direct manager, Mr Sri Dharan, that the police had searched his house looking for child abuse material and had taken his work computer and work phone. The applicant also advised Mr Dharan of the name and telephone number of the police officer who was handling the matter. According to an email sent on 5 August 2014 from Mr Dharan to other officers of RMS, Mr Dharan had been advised that the applicant "is denying the allegation". 7. On the same day, 5 August 2014, the applicant was advised by Mr Dharan that he had been suspended with pay. This was confirmed in a letter to him dated 6 August 2014 from Mr Evans. 8. As a result of the information provided by the Queensland Police Force, and the seizure of the four devices containing child pornography, on 5 September 2014 the applicant was charged with four counts of breaching section 91H(2) of the Crimes Act 1900, namely possession of child abuse material. In addition, as a result of the applicant's interaction with Haley on 20 May 2012, the applicant was charged with one count of breaching section 61N(1) of the Crimes Act, in that he did commit an act of indecency with a person under 16 years of age. The applicant was also charged with one count of breaching section 474A.27A(1) of the Criminal Code Act. 9. The applicant claimed that he understood that the police would be informing RMS of the offences with which he had been charged and that he did not understand that it was also his obligation to inform RMS directly of the charges. 10. On 9 September 2014 the applicant telephoned Mr Dharan and told him that the applicant's work computer and mobile phone had been returned by the police as nothing of an incriminating nature was found on those devices. Shortly after that Mr Dharan came to the applicant's residence and collected those devices and some other RMS items that had been assigned to the applicant. 11. On 15 September 2014 the Chief Executive of RMS, Mr Peter Duncan, determined that the applicant would be suspended without pay pending the outcome of the investigation by RMS into the allegations which underpinned the criminal charges against the applicant. The applicant did not receive the letter advising him of this decision until 13 October 2014 which became the commencement date of his suspension without pay. During this period of suspension without pay the applicant was permitted to access his accrued sick leave, annual leave and long service leave entitlements. 12. The first return date in the Local Court of the criminal charges against the applicant was 7 October 2014. The applicant informed Mr Dharan of that fact on or about that date. 13. It appears that, ultimately, the four counts of possession of child abuse material were condensed into one charge of breaching section 91H(2) of the Crimes Act and the section 61N(1) matter was withdrawn. 14. On 16 April 2015, in the Port Kembla Local Court, the applicant entered pleas of guilty to one count of breaching section 91H(2) of the Crimes Act and to one count of breaching section 474A.27A(1) of the Criminal Code Act. The presiding magistrate, Magistrate Stoddart, described the offences as "very serious matters indeed". The first carries a maximum penalty of ten years imprisonment and the second a maximum penalty of seven years imprisonment. The jurisdictional limit on the Local Court in respect of each offence was two years imprisonment. The applicant was convicted of the two offences and sentenced to a period of nine months imprisonment with a non-parole period of six months. The applicant immediately appealed the severity of the sentence and was granted conditional bail. 15. On 27 May 2015 Judge Paul Conlon of the District Court of NSW confirmed the conviction of the applicant on the possession of child abuse material charge but set aside the penalty imposed by the Local Court and in its place directed the applicant to enter into a good behaviour bond for two years and to accept Community Corrections Service supervision for as long as considered necessary and to obey all reasonable directions. In relation to the matter involving the use of a carriage service to send indecent material to a person under 16 years of age, his Honour sentenced the applicant to a term of imprisonment of 12 months but suspended that sentence upon the condition that the applicant enter into a recognizance in the sum of $1,000.00, without security, to be of good behaviour for a period of two years. Supervision by the Community Corrections Service was imposed with respect to this matter as well. Action following the criminal convictions 1. RMS and Transport for NSW ('TfNSW') are two of a number of public transport agencies within New South Wales that form what is known as the "Transport Cluster". TfNSW has a Workplace Conduct and Investigation Unit ('WCIU') which supports the Transport Cluster, including RMS, on matters such as allegations of misconduct by employees. On or about 28 May 2015 the applicant informed Ms Amanda Kotevski, Acting Senior Consultant of the WCIU, by telephone that his case had been finalised. On 29 May 2015 the applicant emailed to Ms Kotevski a copy of a letter to him from his solicitors which confirmed the outcome of his appeal to the District Court. 2. There then followed an exchange of correspondence between the applicant and his solicitors, on the one hand, and officers of RMS and TfNSW, on the other hand, which culminated in a meeting between the applicant, his wife, Mr Evans and Mr Silven Simmons, Principal Manager, Human Resources and Industrial Relations at RMS, on 10 September 2015. At that meeting Mr Evans informed the applicant that he, Mr Evans, had determined that he would not proceed with further disciplinary action against the applicant and that he could return to work once he had provided a medical clearance and had re-undertaken Code of Conduct and Ethics training. On 11 September Mr Evans sent the applicant a letter advising him that it was anticipated that his return to work would occur on or around Monday 21 September 2015. 3. It appears that, following the meeting on 10 September 2015, concern was expressed at the most senior levels of management within RMS, including its Chief Executive, and TfNSW about the crimes committed by the applicant and the prospect of him returning to his role at RMS. Mr Evans remained concerned that, notwithstanding the fact that the applicant's criminal convictions were not directly related to his position at RMS, the conduct which had led to those convictions was reprehensible and did not meet the standards of behaviour expected of RMS staff. 4. Regulation 31 of the TAS Regulation provides as follows: 31 Members of the Transport Service convicted of serious offences If a member of the Transport Service is convicted of a serious criminal offence, the Transport Secretary may: (a) take disciplinary action with respect to the member, or (b) take remedial action with respect to the member. 1. Regulation 3 contains the following definition: "serious criminal offence" means an offence committed in New South Wales that is punishable by imprisonment for 6 months or more or an offence committed elsewhere that, if it had been committed in New South Wales, would be an offence so punishable. 1. On Friday 18 September 2015 Mr Evans telephoned the applicant and instructed him not to return to work on the following Monday. Mr Evans told the applicant that he was going to reassess his decision to not take disciplinary action against the applicant. Mr Evans confirmed his direction that the applicant not return to work in a letter to him dated 21 September 2015. 2. Mr Evans came to the view that the applicant's conduct was so inconsistent with the values required to be possessed and demonstrated by government employees that, even if it was not done while on duty and even if his work did not involve children, he, Mr Evans, had to change his decision and proceed with his initial view to terminate the applicant's employment. Mr Evans was satisfied that the applicant's conduct was sufficiently serious to warrant termination of his employment given: 1. that the applicant was convicted of serious criminal offences; 2. that the applicant was convicted of offences relating to child pornography; 3. that the applicant was convicted of, not only possessing child pornography, but also of sending indecent material to someone portraying themselves as a 14 year old girl; 4. an expectation that people convicted of serious child pornography offences should not be employed as NSW public servants; 5. society's attitude to child pornography and paedophilia, particularly given the recent high-profile media attention given to the Church and child institutions as a result of the Royal Commission into Child Sexual Abuse; 6. that the applicant failed to inform RMS that he had been charged with any offences (until after his matter had been finalised in the District Court); and 7. that the applicant failed to inform RMS that he had pleaded guilty and been convicted of any offences in the Local Court (until after his matter had been finalised in the District Court). 1. On 30 September 2015 Mr Evans sent the applicant a letter directing him to attend a formal meeting with Mr Evans on Friday 2 October 2015. On that day Mr Evans met the applicant and his wife and provided him with a letter of dismissal. The applicant was paid five weeks' pay in lieu of notice. 2. After the termination of the applicant's employment, Mr Evans re-read the fact sheet tendered by the prosecutor in the Local Court. Mr Evans had not picked up, when he first read the fact sheet or at any time prior to the applicant's dismissal, that two of the devices containing child pornography seized by the police were located in the applicant's RMS work vehicle. This caused Mr Evans to become more concerned and reinforced his decision that the applicant should not be employed to work for RMS. Case for the applicant 1. In his application to this Commission, the applicant claims that his dismissal was harsh, unreasonable or unjust for the following reasons: a) The Termination Letter refers only to the conduct of which Mr Hansen was convicted. That conduct was unrelated to his employment, and did not provide a proper reason for dismissal. That conduct did not cause serious damage to the employment relationship, nor was it incompatible with Mr Hansen's duties as an employee. Mr Hansen's position as Fleet Inspector did not involve any interaction with children. None of the offences of which Mr Hansen was convicted involved the use of RMS computers or other equipment. b) RMS was aware that Mr Hansen had been charged, and of the outcome of the Local Court hearing. Most importantly, RMS was aware of the outcome of the District Court hearing and thus the ultimate outcome of the criminal process. The alleged failure to 'properly disclose the fact that you had been charged or convicted in the Local Court' was not a proper reason for dismissal. c) Mr Hansen was dismissed after a lengthy period of suspension, and after RMS had informed him that no disciplinary action would be taken. Dismissal in these circumstances has caused Mr Hansen additional and unnecessary distress. d) Although RMS met with Mr Hansen twice during its investigation (on 10 September 2015 and 2 October 2015), on neither occasion was there any inquiry regarding the relevant facts or any mitigating circumstances. On both occasions the outcome was conveyed to Mr Hansen during the meeting, and Mr Evans had clearly already decided the outcome prior to the meeting. e) After informing Mr Hansen that no disciplinary action would be taken, RMS changed its decision and issued the Termination Letter. That occurred without giving Mr Hansen any further chance to be heard. f) Mr Hansen was a longstanding employee (33 years of service), with a good employment record. g) Even if (contrary to the Applicant's primary position) the conduct disclosed by Mr Hansen's convictions was relevant to his employment, in all of the circumstances dismissal was not the appropriate penalty, and was harsh. The Applicant had already been penalised as a result of his lengthy period of suspension without pay. Other disciplinary action or remedial action was available to the RMS. h) Mr Hansen's conduct has been dealt with by the criminal justice system, with criminal punishment imposed. That process has caused Mr Hansen great distress. It was harsh for RMS to impose an additional 'punishment' of dismissal from employment. i) Mr Hansen was not provided with particulars of his alleged behaviour giving rise to the disciplinary investigation, contrary to reg 30 of the Transport Administration (Staff) Regulation 2012. There was no investigation conducted by the RMS into that alleged behaviour. j) In addition, and relevant at least to any lost pay or compensation to be awarded, Mr Hansen was suspended without pay unnecessarily, and for an excessive period, after his criminal charges had been finalised. The unnecessary and lengthy suspension caused him financial hardship and distress. Authorities on 'out-of-hours' conduct 1. In support of the application, Mr Moorhouse, counsel for the applicant, relied upon the often cited decision of Ross VP, as his Honour then was, of the Australian Industrial Relations Commission in Rose v Telstra Corporation Ltd (unreported, Print Q9292, Dec 1444/98, 4 December 1998), and, in particular, the following passage (at pages 11-12): It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited: * the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or * the conduct damages the employer's interests; or * the conduct is incompatible with the employee's duty as an employee. In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee. 1. It needs to be remembered that in the case of Rose, the reason for the dismissal of the applicant, Mr B. Rose, which Ross VP found to be harsh, was that he had got into an altercation out-of-hours with another Telstra employee during which the applicant received an injury requiring 12 stitches. The applicant had not been charged with, nor convicted of, any criminal offence whereas the other party to the altercation was charged and ultimately convicted of malicious wounding and sentenced to four months imprisonment. This suggests that, of the two participants in the altercation, Rose was the less culpable. 2. I discern nothing in the decision in Rose which establishes any principle to the effect that, even where an employee has committed a serious crime out-of-hours and away from the workplace, there needs to be established a direct connection between that criminal activity and the person's employment before the commission of that crime provides justification for the dismissal of the employee. The situation may well be different with respect to the commission of less serious offences, such as common assault. Further, as will be discussed later in these reasons for decision, this Commission has rejected the notion that the out-or-hours conduct "must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee". 3. Towards the end of his decision, Ross VP stated (at page 17): I do not doubt that the applicant's behaviour on 14 November 1997 was foolish and an error of judgment. He made a mistake. But employers do not have an unfettered right to sit in judgment on the out of work behaviour of their employees. An employee is entitled to a private life. The circumstances in which an employee may be validly terminated because of their conduct outside work are limited. The facts of this case do not fall within those limited circumstances. 1. I do not accept that an employee's entitlement to a "private life", with respect to which an employer has no "unfettered right to sit in judgement", extends to the commission of serious crimes such as those committed by the applicant in the present case. Clearly, the gravity of the conduct which led to a dismissal is a matter which the Commission must consider in any unfair dismissal case. 2. Counsel submitted that the statements made by Ross VP in Rose, including the passage cited at paragraph 28 above, have been approved by subsequent Full Benches of the Federal Commission, including in Farquharson v Qantas Ltd [(2006) 155 IR 22 at [18]-[20]]. In that matter the appellant's employment had been terminated because of an assault on another Qantas employee during what was referred to as "slip time", or rest time, given to flight crews between flights. The incident occurred at a hotel in Singapore in the early hours of the morning when the appellant was quite drunk having consumed between 11 and 14 drinks. The appellant had not been charged with, nor convicted of, any criminal offence. Despite this Drake SDP dismissed the appellant's unfair dismissal application at first instance. On appeal the Full Bench (Lawler VP, O'Callaghan SDP and Raffaelli C) was not satisfied that the appellant had demonstrated error on the part of her Honour warranting a grant of leave to appeal. Leave to appeal was refused. Clearly, the gravity or seriousness of the employee's conduct in that matter was far less than that of the applicant in the matter presently before the Commission, and yet the dismissal of the appellant was not found to be unfair. 3. Counsel also relied upon the earlier decision of a Full Bench of the Federal Commission (MacBean SDP, Duncan DP and Deegan C) in Appellant v Respondent [(1999) 89 IR 407] in support of the propositions that it is only in "exceptional circumstances" that an employer has a right to extend supervision over the private activities of employees, and that the employer would have to have a "legitimate concern" to act in relation to out-of-hours conduct. 4. In that matter the out-of-hours conduct which the Commission found did not justify dismissal was consensual sexual activity between two flight attendants in the early hours of the morning in a hotel room during an international stop over. No question of criminality arose, but one of the participants subsequently complained that she had been sexually harassed by her co-worker. 5. Sexual harassment of a co-worker is clearly unacceptable conduct, but it is of an entirely different class of conduct, in terms of gravity or seriousness, to the conduct of the applicant in the present case. Reliance upon the decision in Appellant v Respondent to support the applicant's case in the present matter demonstrates the inherent difficulty in attempting to draw support from observations made in decisions which are dealing with vastly different factual circumstances to those which are presently before the Commission. 6. Counsel also relied upon a number of decisions of this Commission which, it was submitted, had endorsed the principles set out in Rose. 7. One of those decisions was that of the Full Bench (Wright P, Harrison DP and Boland J) in New South Wales Attorney-General's Department v Miller [(2007) 160 IR 185]. In that matter the employee, Mr Miller, had been dismissed for sexually harassing a number of female work colleagues, generally away from the workplace. He had not been charged with, nor convicted of, any criminal offence. At first instance, Grayson DP found that the allegations of sexual harassment had not been made out on the evidence and, as a consequence, the dismissal of Mr Miller was found to be harsh and unreasonable. 8. With respect to the allegations concerning out-of-hours conduct Grayson DP observed "that much of the alleged misconduct – indeed the overwhelming majority of it when viewed by degree of potential seriousness – involved social activity at various licensed establishments outside working hours and away from the workplace…" (quoted by the Full Bench at [54]). 9. On appeal the Full Bench found that Grayson DP had erred with respect to a number of his findings that sexual harassment had not occurred. Nevertheless, the Full Bench found that the dismissal of Mr Miller was harsh stating: 122 We have decided, not without hesitation, that Mr Miller's dismissal was, in the circumstances, harsh because it was disproportionate to the gravity of the misconduct and because of the consequences for the personal and economic situation of Mr Miller: see Byrne v Australian Airlines Ltd, Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ. Part of our hesitation stems from a concern that a finding that the dismissal was harsh might be seen as condoning Mr Miller's conduct and thereby undermining the appellant's obvious entitlement to rely on supervisors to conduct themselves properly in the workplace and to ensure others did so in accordance with the Department's policies. 123 We should make it perfectly clear in that regard that for a person in the relatively senior position of Assistant Registrar, who prided himself on his work achievements and his ability to manage people and deliver "great results", we have been left with the distinct impression on the evidence that Mr Miller's attitude to those women in respect of whom he held a supervisory responsibility at Manly was boorish, insensitive, inconsistent with the position he held and constituted unacceptable behaviour. It is only by the narrowest of margins that we have found the dismissal harsh. No employee who engages in harassment of any kind could take any comfort from our decision. 1. Clearly, the misconduct of the employee in that case was far less, in terms of its gravity or seriousness, than the criminal conduct of the applicant in the present matter. 2. In Lawrance v Commissioner of Police ([2010] NSWIRComm 149 (12 November 2010)) Walton VP, as his Honour then was, reviewed the decision of the Commissioner of Police to remove from the force a police sergeant who, on at least two occasions, exposed his penis at a work Christmas party in front of a number of other serving police officers and some civilian invitees. The function took place out-of-hours and away from the workplace. 3. It may readily be accepted that special considerations apply to police officers, who are required to at all times enforce the law, which considerations do not apply to the applicant in the present case. It is also accepted that the "impugned conduct" in Lawrance occurred at a work related function which is not the case in the present matter. However, there were a number of countervailing features which also distinguish Lawrance from the present case on the question of the gravity or seriousness of the misconduct which led to dismissal. They included: 1. The applicant had not been charged with, nor convicted of, any criminal offence. 2. The persons exposed to the "impugned conduct" were all adults and were attendees at the function. No members of the general public and no children were present. 3. Those who witnessed the "impugned conduct" did not take offence to it. 4. The applicant was well affected by alcohol at the time. 5. The applicant was supported by significant character evidence. 1. Balancing all of the relevant considerations, Walton VP decided "by a fine margin" that the removal of the applicant was "too harsh a consequence for the applicant's misconduct, having regard to the degree of seriousness of the applicant's misconduct… and the strong mitigating and other ameliorating circumstances in favour of the applicant…" (at [322]). 2. It is extremely doubtful that the same decision would have been made by his Honour if the intended victim of the applicant's indecent exposure was a person, unknown to the applicant, but whom the applicant believed to be a fourteen year old girl. This is likely to be the case despite the presence in that matter of the "strong mitigating and other ameliorating circumstances in favour of the applicant", none of which are present in the matter now before the Commission. 3. Counsel for the applicant sought to call in aid of the applicant's case the approach adopted by the Commission in Public Employment Office Department of Attorney General and Justice (Corrective Services NSW) v Silling ([2012] NSWIRComm 118 (31 October 2012)). In that matter the dismissed employee, Mr Silling, a Correctional Officer, had, over a period of 13 years, been charged with, and pleaded guilty to, three counts of common assault, two on his wife and one on his 24 year old daughter. Common assault under section 61 of the Crimes Act is an assault not occasioning actual bodily harm. A conviction renders the offender liable to imprisonment for two years. 4. At first instance Bishop C found the dismissal to have been unfair and ordered the reinstatement of Silling (Silling v Corrective Services NSW [2011] NSWIRComm 1056 (16 December 2011)). In her decision Bishop C was focussed on the need for there to be a connection between the applicant's off-duty conduct and his employment (at [155], [174]). There can be no doubt that the existence or otherwise of such a connection may have relevance in cases of less serious criminal conduct. In cases involving the commission of very serious crimes, such as the present matter, the search for such a connection can become a distraction when the overriding consideration should be an objective assessment of the inherent seriousness of the criminal conduct itself. 5. After citing a passage from Farquharson (at [20]-[22]), which included the passage from Rose cited at paragraph 28 above, Bishop C stated: [158] I do not consider that by his three acts of domestic violence, reprehensible as they might be, he had any intention to, nor did he, repudiate or reject his contract of employment with CSNSW. Although this statement is consistent with the reasoning of Ross VP in Rose, by putting the proposition in this way, the Commissioner was, with respect to her, addressing the wrong question in the context of public sector employment. 1. On appeal the Full Bench (Haylen J, Backman J and Stanton C) held that the findings of Bishop C that the termination of Silling was harsh, unjust and unreasonable, and the Commissioner's decision to re-instate, were reasonably open to her and that, having regard to the substance of the Commissioner's decision, no error had been demonstrated that warranted the granting of leave to appeal (per Haylen J at [3]). 2. In her reasons for decision, Backman J stated (at [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. (emphasis added) Nowhere does her Honour state that the presence or absence of such a connection is the decisive factor in determining whether a particular dismissal is unfair. 1. The Full Bench did not comment on that passage of the Commissioner's decision cited at paragraph 48 above. 2. There are a number of significant factors in Silling which stand it apart from the facts of the present case. They include the following: 1. In 1998 Silling pleaded guilty to a charge of common assault under section 61 of the Crimes Act following a domestic dispute with his wife. The offence was found proven and he was released upon entering into a recognisance under section 556A of the Crimes Act subject to conditions, one of which was to attend for counselling as directed or agreed. His employment was not terminated but he was issued with a letter of warning. 2. In 2008 Silling assaulted his 24 year old daughter during an argument. Again he pleaded guilty to a charge of common assault, the offence was found proven and he was placed on a recognisance under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. No further conditions were imposed and no internal disciplinary action was taken "due to an administrative oversight". This, coupled with the previous letter of warning, made it difficult for the employer to subsequently argue that the commission of the offence of common assault compromised Silling's capacity to perform the role of a Correctional Officer. 3. In 2011 Silling again assaulted his wife during an argument. He pleaded guilty to a charge of common assault, was convicted and placed on a recognisance order under section 9 of the Crimes (Sentencing Procedure) Act to be of good behaviour for nine months subject to conditions. 4. None of the offences committed by Silling led to the imposition of a term of imprisonment, suspended or otherwise. 5. Bishop C accepted that Silling "took immediate and prompt action to report the incidents himself, cooperated in police interviews, made admissions and subsequently pleaded guilty to the very serious offences he had committed… He also promptly reported each incident to his Managers at Goulburn Correctional Complex and provided detail about his court appearances and resulting convictions" (at [130]). 6. The victim of two of Silling's offences, his wife, gave evidence in support of him before Bishop C. 1. In my opinion, the decisions in Silling, both at first instance and on appeal, provide very little guidance in a case such as the present where the criminal conduct which led to the dismissal was not in the nature of a common assault perpetrated on a forgiving spouse, but involved the sexual exploitation and abuse of children. Silling is very much confined to its own particular facts and does not support a finding, in the present matter, that the dismissal of the applicant was harsh, unreasonable or unjust. 2. A different outcome from that in Silling occurred in Corrective Services NSW v Danwer ([2013] NSWIRComm 61 (16 July 2013)). In that matter, a Full Bench of the Commission (Boland P, Staff J and Backman J) reversed the first instance decision of Newall C to reinstate a Correctional Officer who had been dismissed following his conviction for an offence under section 61N(2) of the Crimes Act, namely, committing an act of indecency towards a person over the age of 16 years (Shonit Kumar Danwer v Corrective Services NSW [2013] NSWIRComm 1009 (27 May 2013)). A person who commits this offence is liable to a penalty of 18 months imprisonment. 3. The offence occurred out-of-hours and away from the workplace. In his decision, Newall C maintained that the test was whether the applicant's conduct was such as to indicate an objection or repudiation of the employment contract, stating: [58] As I note above, in considering whether this dismissal was harsh, unjust or unreasonable, it is to be borne in mind that the conduct which led to Mr Danwer's conviction was off-duty. The circumstances in which out-of-hours conduct can be held to justify the termination of an employee's employment are limited: Rose v Telstra Corporation Limited Print Q9292, 4 December 1998, cited with approval in NSW Attorney-General's Department v Miller [2007] NSWIRComm 33 at [52]. Not only is the employer obliged to demonstrate that the conduct could relevantly be considered in the context of employment, but the conduct complained of must be of such gravity or importance as to indicate an objection or repudiation of the employment contract by the employee. 1. The Commissioner found the conduct of the applicant did not demonstrate an intention to repudiate the contract of employment, nor was it conduct so as to, of itself, terminate the contract (at [60]-[61]). This approach appears to be consistent with that of Ross VP in Rose and Bishop C in Silling, as cited at paragraphs 28 and 48 above. 2. On appeal, the Full Bench did not consider the Commissioner's approach was correct and, to that extent, he was in error. The Full Bench stated (at [30]-[32]). 30 In 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. 31 At [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. 32 Having regard to Brown, we do not consider the Commissioner's approach was correct and to that extent he was in error. It should be noted that section 48 of the Public Sector Employment and Management Act 2002 entitled the appropriate Department Head to take disciplinary or remedial action against an officer who had been convicted of an offence that is punishable by imprisonment for 12 months or more. Regulation 31 of the TAS Regulation provides the Transport Secretary with similar powers with respect to employees of RMS, such as the applicant. 1. The reference to Brown at paragraph [32] of the Full Bench's decision is a reference to an earlier Full Bench decision in 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) which the Full Bench in Danwer discussed at length earlier in its decision. Those passages are cited later in these reasons for decision in the broader context of a discussion of the relevance of common law principles to the dismissal of public sector employees. 2. Conduct amounting to a repudiation of the employment contract, as was considered in Rose and Silling, is not the yard stick against which the out-of-hours conduct of the applicant needs to be measured so as to justify the dismissal in the present matter. The starting point for such consideration is the gravity or seriousness of that conduct. 3. In considering whether the dismissal in Danwer was harsh the Full Bench stated as follows: 63. We 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. 64. That 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] 65. As 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. 66. Those 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. 67. On 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. 1. It will be apparent from the Full Bench's consideration of the issue of harshness of the dismissal, that the first matter weighed in the balance was the "gravity of the conduct that led to the conviction". Clearly, the fact that the conduct 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, weighed heavily against a finding of harshness. 2. In Kevin Cooper v Australian Taxation Office ([2014] FWC 7551) Lawrence DP of the Fair Work Commission was dealing with an unfair dismissal application by a former employee of the Australian Taxation Office ('the ATO') who was dismissed following his conviction on two counts of indecency on a person who was under 16 years of age outside of Australia. The applicant had been sentenced to three years and two months imprisonment for his crimes. 3. The ATO's position was that the applicant had been dismissed for a breach of the Australian Public Service Code of Conduct arising from the applicant's convictions. 4. Before Lawrence DP, the applicant asserted his innocence and intention to appeal the convictions. He further submitted that the offence for which he was convicted had no link to the employment relationship (at [4]). As has occurred in the present case, the applicant in that matter relied heavily on the decision of Ross VP in Rose on the issue of the necessary connection between the misconduct and the employment relationship. 5. The ATO agreed that the convictions were not work related. They occurred outside Australia. They did not relate to other employees of the ATO. They were, however, for very serious offences which were, it was agreed, highly unethical (at [42]). 6. Nevertheless, the ATO alleged that the applicant's convictions "are a breach of the APS Code of Conduct as set out in the Public Service Act 1999. The report of Mr Davey on 13 August 2013 found a breach of 2 provisions of the Code: s.10(1)(d) – 'The APS has the highest ethical standards' s.13(11) – 'An APS employee must at all times behave in a way which upholds APS values and the integrity and good reputation of the APS.'" (at [26]) 1. After citing the passage from the decision of Ross VP in Rose quoted at paragraph 28 above, Lawrence DP stated as follows: [45] His Honour analysed the facts of several cases and concluded that a valid reason for termination for conduct outside work would require "requisite connection to his employment". [46] In Anthony Farquharson and Qantas Airways Limited [PR971685], 10 August 2006, a Full Bench, VP Lawler, SDP O'Callaghan, Raffaelli C dealt with "the peculiar circumstances attending slip time in a foreign port that give Qantas a legitimate interest in the slip time conduct of its flight crew that is far greater than the usual interest of an employer in the off duty conduct of its employees." In that case, Qantas had a legitimate interest in ensuring that incidents did not occur which damaged its interests and reputation. [47] In Michael King v Catholic Education Office Diocese of Parramatta [PR544488], 20 November 2013, I decided that although the conduct for which the Applicant was dismissed occurred outside school hours and premises, it constituted a valid reason for dismissal. The "requisite connection" to the Applicant's employment was the students of the college. [48] This decision was upheld by a Full Bench (2014) FWCFB 2194. [49] It seems to me that the general approach of the Commission, as summarised in Rose, needs to be applied so that the test is appropriate to the circumstances of the employment relationship. Private, for profit employment will be different to the school situation dealt with in King. In this case, public sector employment is under consideration. [50] The relevant parts of the Code of Conduct are quoted above. Section 13(11) and s.10(1)(d) require an ATO employee to behave "at all times" in a way which maintains the integrity and reputation of the APS. I accept the ATO's submission that this creates an overriding obligation, not just in work time or workplaces, for an employee to behave with the highest ethical standards so the APS's reputation is maintained. [51] The Applicant's convictions were for a serious offence which was clearly unethical. I find that the Applicant was in breach of the Code of Conduct. [52] I accept also that public sector employment has a special value. This is particularly so with an agency like the ATO which must maintain the confidence of the general public in dealing with their taxation and financial affairs. …………………… [54] The decision in Rose describes the shift in the way in which 'private' acts are treated. It is noted that a conviction for a criminal offence is not, of itself, sufficient to warrant termination. It depends on the circumstances. [55] Given the nature of the employment and the convictions in this case, the action taken to dismiss by the ATO, is in my view not contrary to Rose: ● convictions for such unethical actions caused serious damage to the employer/employee relationship. ● the employer's interests and reputation, as summarised in the Code, were potentially damaged. ● the conduct was incompatible with the employee's duty as an employee especially as his position involved supervision of other employees. [56] Having found that the Applicant's convictions put him in breach of the Code, I find that the ATO's action in carrying out a formal investigation and ultimately dismissing the Applicant was a reasonable response to a difficult situation. I find that, in the circumstances of the case, there was a valid reason for the dismissal of the Applicant. 1. Lawrence DP dismissed the application for a remedy for unfair dismissal (at [71]). 2. The unsuccessful applicant sought permission to appeal the decision of Lawrence DP to a Full Bench of the Commission on which Ross P was the presiding member (together with Hatcher VP and Gostencnik DP - Kevin Cooper v Australian Taxation Office ([2015] FWCFB 868). 3. After reciting at length passages from the decision of Lawrence DP the Full Bench stated: [17] There is nothing in these passages ([42]-[49]) which suggests any error. Moreover the Deputy President's summary at paragraph [49] that the general approach in Rose should be applied having regard to the circumstances of the employment relationship is plainly correct… 1. Ultimately, the Full Bench refused permission to appeal. 2. The facts in the present case are much closer to the facts in Cooper and Danwer than they are to the facts in Rose and Silling. Change of mind by Mr Evans 1. It is claimed on behalf of the applicant that, because Mr Evans had decided by 10 September 2015 not to take further disciplinary action against the applicant and to allow him to return to work, in some way Mr Evans had forfeited the right to reconsider his decision and to dismiss the applicant. It is unfortunate that the applicant was advised that he could return to work and was then given contrary advice a short time later. Ideally, that should not have happened, but that unfortunate circumstance does not render the dismissal of the applicant unfair. 2. It was submitted that, at common law, an employer who, with full knowledge of an employee's misconduct, makes a decision to continue to employ that employee, cannot later summarily dismiss the employee on the basis of that misconduct. One of the cases cited in support of that proposition was Rankin v Marine Power International Pty Ltd [(2001) 107 IR 117 at [352]]. In that matter, which was heard by Gillard J of the Supreme Court of Victoria, an employee was found to have been negligent in the course of his duties, but was permitted to remain in the employment of the defendant company for a period of three and a half months. This, it was argued, constituted condonation by the employer of the alleged breach of the employment contract by the employee, or a waiver of the employer's rights in relation to that breach. Gillard J dealt with that issue as follows: 360. As I have said, the question of election is a question of fact. In my opinion, the defendant did not elect to abandon its right to terminate the plaintiff's service without proper notice. On the contrary, it made it clear that it was terminating the plaintiff's employment for cause, that he was given three and a half months' notice to enable him to finalise the project of which he had intimate knowledge, and, as Mr Wiggill said, to give him the opportunity to obtain employment whilst holding down his job. None of that evidence leads to the conclusion that the defendant abandoned its right to summarily dismiss him without proper notice. 361. Mr Tracey QC submitted that the mere fact that the defendant allowed the plaintiff to continue for a period of three and a half months, showed that the defendant had elected to abandon its right to terminate without proper notice. In other words, if an employer has the right to dismiss summarily, the fact that the employer decides - and in this case with the consent of the employee - to permit the employee to remain for a certain period to perform certain duties amounts to an election to abandon a right. In my opinion, it does not. 362. My conclusion is to some extent supported by the Privy Council's decision in S.O.S. Kinderdorf International v Bittaye [1996] UKPC 11; (1996) 1 WLR 987. In that case, the employee made an unauthorised loan from the employer's funds to a friend. The employer learned from an accountant about the loan, and sent the employee on 120 days' leave at his request. When the period of leave expired, the employee did not return to his employment, nor did the latter ask him to do so. The Privy Council drew the inference that the employer dismissed the employee at the end of the 120 days' leave. There is no suggestion in the case that, by sending the plaintiff on 120 days paid leave, the employer had lost its right to dismiss the employee. 363. It follows that if the defendant had been entitled to dismiss the plaintiff on 15 January 1999 without proper notice, in the circumstances, it did not lose its right by giving him three and a half months' notice with an option to continue for a further three months. 1. Gillard J found that there had been no condonation or waiver of rights in that case. In any event, the facts of that case are clearly distinguishable from those of the matter presently before the Commission. In the present matter, the applicant was advised that he could return to work but that never occurred. Before he had resumed work, he was advised of the decision to terminate his services. The earlier advice that was given to the applicant did not constitute condonation as that concept is considered in the authorities. Nor did it constitute a waiver of the respondent's right to reconsider and change its decision from that previously advised to the applicant. 2. I see no significance in the fact that the change of mind by Mr Evans may have occurred in the context of discussions involving the Chief Executive of RMS, Mr Duncan, and other senior officers of RMS and TfNSW. The fact that discussion of issues, such as the suitability of the applicant remaining an employee of RMS, takes place at the most senior levels within the bureaucracy, is entirely unremarkable. 3. The other case relied upon in this context was Heugh v Central Petroleum Ltd (No 5) ([2014] WASC 311 at [94]). In that matter, Le Miere J of the Supreme Court of Western Australia stated: 94 Under the common law a summary dismissal can be supported by any legal justification which in fact existed at the time of termination, irrespective of whether the justification was known or relied upon: Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359; Concut Pty Ltd v Worrell; Downer EDI Ltd v Gillies [2012] NSWCA 333. However, an employer is not entitled to justify termination for misconduct not relied upon at the time of termination if the employer condoned the misconduct or waived its right to terminate on the ground of that misconduct. An employer who has full knowledge of the misconduct of an employee and who makes a decision to continue to employ the employee cannot at a later date dismiss him summarily on the basis of the employee's known misconduct: Rankin v Marine Power International Pty Ltd [2001] VSC 150. It is said that the employer has elected to continue the employee in his service or waived his right to dismiss the employee summarily and thereby condoned the misconduct. However, no such waiver, condemnation or election can take place until the employer has full knowledge of the misconduct: Rankin [354] (Gillard J). 95 Central says that Central was justified in terminating Mr Heugh's contract of employment for the following reasons. Mr Heugh retained Introspec at Central's expense yet without the knowledge of its board or any of its directors, apart from Mr Heugh himself, to carry out enquiries into the background of Mr Shortt. This conduct was to be a step in the process of destabilisation of Mr Shortt. Mr Heugh was behaving in an intransigent fashion and was not cooperating with the board and the implementation of the new system for handling farmouts. Central says that that conduct was a serious breach of the provisions of the employment contract which entitled it to terminate Mr Heugh's employment for a serious breach pursuant to cl 14.1(a)(iii) of the employment contract. Central disavowed reliance upon any common law right of summary dismissal or any right to terminate for gross misconduct under cl 14.1(a)(v). 1. The respondent, RMS, in the present matter does not rely on any common law right to summarily dismiss the applicant. The respondent relies upon its statutory right to take disciplinary action, which includes dismissal, pursuant to Regulation 31 of the TAS Regulation on the basis that the applicant has been convicted of serious criminal offences. 2. This issue was dealt with by the Commission in Danwer where the Full Bench stated as follows: [27] 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 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]). [28] The 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. [29] As 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. 1. This decision disposes of two of the propositions contended for by the applicant in the present matter, namely: 1. To justify the applicant's dismissal, his conduct must amount to a repudiation of his employment contract. 2. Common law concepts such as condonation or waiver of the right of summary dismissal for serious breach of the employment contract are relevant to the dismissal of the applicant. Unreasonable or unjust 1. The criminal conduct engaged in by the applicant was extremely serious. It involved the sexual exploitation and abuse of children. The maximum penalties for these offences reflect their seriousness. 2. Regulation 31 of the TAS Regulation provides that, if a member of the Transport Service is convicted of a serious criminal offence, the Transport Secretary may take disciplinary action with respect to the member. This disciplinary action may include dismissal. 3. In addition there are various Codes of Conduct which apply to employees of RMS. These codes, which are entirely unremarkable in their content, require employees, in addition to other obligations, to: * Be aware that the reputation of RMS can be affected by the employee's actions at work and, in certain circumstances, by conduct outside the workplace. * Behave in a lawful manner. * Not bring RMS into disrepute by the employee's actions or conduct. * Co-operate with and obey lawful requests, directions or instructions given to the employee in the course of the employment by any person having the authority to do so. * Disclose to the employee's manager or supervisor any charge or conviction, that may impact on the employee's capacity to carry out his/her duties (e.g. loss of driver licence). 1. In the dismissal letter to the applicant from Mr Evans dated 2 October 2015 the following is stated: It is clear from your conviction that you have not behaved in a lawful manner. The conduct of which you have been convicted is not conduct which is consistent with behaviour expected of the staff of RMS. You did not properly disclose the fact that you had been charged or convicted in the Local Court at the times when these events occurred. Having further considered these matters I have determined it is not appropriate for you to continue as an employee. 1. With respect to the "failure to disclose" issue, it is not disputed that, on the day of the police raid on his residence the applicant informed his direct manager, Mr Dharan, that the police had searched his house looking for child abuse material and had taken possession of his work computer and work phone. The applicant also provided Mr Dharan with the name and contact details of the responsible police officer. 2. When he was charged on 5 September 2014, the applicant did not inform RMS of the charges but claims that, based on advice he was given by the police, he believed that they would do so. I accept the applicant's evidence to this effect. 3. On 16 April 2015 the applicant was convicted in the Local Court of two offences. He immediately lodged an appeal to the District Court. The Appeal Listing Notice, which disclosed the two convictions, was copied to RMS via a Parramatta postal address and a fax number. The applicant again claims that he did not think that he also needed to inform RMS as well of the convictions. He also claims that he did not think he needed to inform RMS of the convictions because he had appealed and the criminal process had not concluded. I accept the applicant's evidence as to these matters. 4. The applicant's appeal was heard and determined in the District Court on 27 May 2015. On or about 28 May 2015 the applicant informed Ms Kotevski of the outcome of the appeal. 5. I am not persuaded that the failure of the applicant to properly disclose the fact that he had been charged or convicted in the Local Court at the times when these events occurred constitutes such a significant breach of the Code of Conduct, of itself, such as to justify the termination of his employment. But that is far from the end of the matter. 6. It is clear that the applicant breached the obligation to behave in a lawful manner. The offences committed by him are extremely serious. In addition, the applicant had devices containing child pornography in his work vehicle. The applicant's conduct had the potential to bring RMS into disrepute. 7. The serious nature of the offences committed by the applicant is, of itself, sufficient to render his dismissal neither unreasonable nor unjust. Procedural issues 1. The applicant was not given the opportunity to be heard as to why he should not be dismissed before the dismissal was effected. He should have been. 2. Reliance was placed on the Full Bench decision in Antonakopoulos v State Bank of New South Wales [(1999) 91 IR 385] to support the proposition that a failure to follow appropriate procedures when effecting a dismissal, and in particular a failure to follow procedures in an industrial instrument or established by administrative action can, of itself in an appropriate case, support a finding that a dismissal was harsh, unreasonable or unjust. 3. Regulation 30(2) of the TAS Regulation provides that a staff member who is the subject of disciplinary proceedings may make representations to the person dealing with the alleged behaviour. The applicant was not provided with the opportunity to do this before the decision to dismiss him was made. 4. The Discipline Guidelines applicable to RMS provide that, where there has been a finding of serious misconduct, the relevant Director will issue a Show Cause Notice to the staff member who is considered to have engaged in the serious misconduct. Strictly speaking, this requirement arises upon the finding of serious misconduct following a disciplinary investigation. The guidelines state that a disciplinary investigation may not be required in circumstances where a relevant criminal conviction has been recorded against the staff member, as did occur in the present case. Nevertheless, the normal requirements of procedural fairness would dictate that the applicant be afforded the opportunity to respond to a Show Cause Notice before any decision was made to dismiss him. Section 88(b) of the Act contemplates that the failure to provide the applicant with such an opportunity is a matter which the Commission may take into account in determining the applicant's claim. 5. However, like Antonakopoulos, this is not a case where the failure to afford the applicant procedural fairness, of itself, supports a finding that the dismissal was unfair. The fact of the applicant's conduct, which led to his criminal convictions, is not in dispute. There is no suggestion that there was any innocent explanation available which might excuse the applicant's conduct. 6. The applicant has now had the opportunity to place before this Commission every matter in mitigation which he may have put to the respondent before he was dismissed, had he been provided with that opportunity. Nothing that has been placed before the Commission leads me to conclude that the outcome would have been any different if those matters had been put to the respondent before it decided to dismiss the applicant. Harshness 1. However, the question that still remains to be addressed is whether or not the applicant's dismissal was, nevertheless, harsh. 2. The orthodox approach to the assessment of whether or not a dismissal is harsh is set out in the following passages of the Full Bench decision (Walton VP, Haylen J and Bishop C) in Department of Health v Perihan Kaplan ([2010] NSWIRComm 65 (28 May 2010)): [26] One ground relied upon for this challenge was predicated upon a legal proposition that a dismissal which was based upon conduct by an employee, which constituted a breach of a fundamental and essential term of the contract of employment, "would necessarily not be harsh". No authority was given in support of that proposition except for an authority which was said to demonstrate that, in the contemporary common law of employment, an implied term may be found in every employment contract that the employee owes the employer a duty not to act in a manner likely to destroy or seriously damage the relationship of trust and confidence between them: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2007) 69 NSWLR 198. The appellant's contention would appear to be that a finding of harshness under s 84(1) could not be made in circumstances where an employee had been lawfully dismissed for breach of such a term. It was also suggested that that approach was mandated because the employee's conduct in that context would be a repudiation of the contract. [27] The difficulty with this approach, as opposed to one which would have the nature of an employee's misconduct weighed against mitigating factors to determine, inter alia, whether a dismissal was harsh, is that it stands in the face of the statutory scheme which requires the Commission to consider whether the dismissal was harsh, unreasonable or unjust. There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 at [99] ('Loty'), that the exercise of the Commission's powers in relation to unfair dismissals (now found in Part 6 of Ch 2 of the Act) requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" (Loty at 99). In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". To similar effect, a Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [71] ('Little') stated: The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate "justification" in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act. [28] This conclusion must also follow from the very meaning of the concept of "harshness" within s 84(1). The words "harsh, unreasonable or unjust" in s 84(1) are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at [467] ("Byrne"), per McHugh and Gummow JJ, (applying Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at [28]). The appellant's acceptance that the expression 'harsh' would bear the meaning "disproportionate to the gravity of the misconduct" (see Byrne at [465]), necessarily brings with it the conclusion that a breach of an employment contract or even a repudiation of it will not be determinative of a finding under s 84(1) of the Act as to whether the dismissal was harsh. So, too, does an acceptance (see Byrne at 465) that the personal circumstances of a dismissed employee may be also brought into account. [29] We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows: In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. 1. In this case the gravity of the misconduct is extreme. It involved the possession of images and videos depicting child abuse material. It involved the use of a carriage service to send indecent material to a person whom the applicant believed to be a fourteen year old girl. The penalties which attach to these offences are significant. The applicant was initially sentenced to nine months imprisonment then, on appeal, to a twelve months suspended sentence. These factors weigh heavily against a finding of harshness. 2. The factors which were put forward on the applicant's behalf as weighing in favour of a finding of harshness are: 1. The applicant's 33 years of service with RMS and its predecessors, having worked his way up from starting as an apprentice. 2. The applicant saw himself as continuing to work for RMS until his retirement. 3. The applicant had a good employment record. 4. The applicant was 52 and had worked for RMS for effectively the whole of his working life. He now has a criminal record and will have difficulty finding other employment. 5. The applicant has already been punished for his conduct by the criminal justice system. In addition, he has endured the distress, anxiety and expense associated with the criminal process. He claims that there is no need for RMS to impose an additional punishment for conduct unrelated, or alternatively only slightly and indirectly related, to his employment. 6. The applicant was ashamed and regretful of his conduct. He had expressed remorse by means of his plea of guilty. There was no reason to expect or predict a repeat of his offending conduct. 7. As a result of his conduct and the charges laid against him, prior to his dismissal the applicant had already endured the opprobrium of suspension from his employment for over 12 months. He was required to use up his extensive accrued sick leave, annual leave and long service leave. 8. The RMS' change of mind, and the fact that the applicant had been told two weeks earlier that he could return to work, provides a particular reason in this instance why the impact of the dismissal was harsh. 1. In weighing all of these factors against the seriousness of the applicant's conduct which led to his criminal convictions and, ultimately, to his dismissal, I do not find that his dismissal was harsh. Further basis for withholding discretionary relief 1. There is a further reason why relief should be denied in this matter. I have formed the view that the applicant gave untruthful evidence when he was in the witness box. 2. During the cross-examination of the applicant by Mr Woods, solicitor for the respondent, the following exchanges occurred: WOODS Q. Mr Hansen, had you had conversations with other identities that you believed to be children prior to 20 May 2012? A. No. Q. Electronic conversations? A. No. Q. Hayley is the first such style conversation that you had? A. Yes. Q. And conversations after that date? A. No. …………………… Q. So you're sure you hadn't been doing this before? A. Yes, I'm sure. Q. And are you saying that you stopped everything that was child abuse and child pornography related from that date? A. Yes, I am. Q. But you didn't do anything to remove that material, did you? A. No, I didn't. Q. And you looked at it from time to time after 20 May 2012? A. No, I didn't, I just had the drives there, I hadn't looked at it. Q. So you looked at it before 20 May - the material on the drives? A. Yep. Q. And you could have been doing that for a couple of years? A. Possibly, yep. Q. But you say that you hadn't been doing it afterwards? A. No. Q. You're sure? A. Yes, I'm sure. Q. But you didn't see any reason to get rid of it, did you? A. No, I'd actually forgotten about it to be honest. Q. So you forgot about it, but took it with you to Nyngan the week before the police arrested you? A. Yes. I knew there was pornography on there. There were hundreds and hundreds of photos on there. Q. So you're saying there's adult pornography? A. Yes. Q. And child pornography? A. Yes. Q. And child abuse? A. Yes. Q. And you took those USBs with you as you travelled so that you could look at them, didn't you? A. No. Q. When you had a bit of quiet time on these trips you could look at those USBs, couldn't you? A. No, I never looked at them while I was away with work. Q. So just be clear, are you asking the commission to believe that from 20 May 2012 you didn't look at this material at all? A. That's correct. Q. But you kept it all? A. Yes, I did keep it. Q. And you took it out of the house? A. Yes. Q. And you put it in your office, as you call it? A. I put it in my personal bag. Q. In your car? A. It was-- Q. In your RMS car? A. Yes. Q. What you refer to as your office? A. Yes. Q. And you took it with you on trips? A. Yes. Q. And you're hoping that the commission will believe you that you did not touch it after 20 May 2012? A. I did not touch it after May 2012. Q. You say in your second statement at paragraph 15, "I packed those two USB sticks in that personal baggage as I didn't want them in the house while I was away for the week." A. Yep. Q. You weren't worried about the laptop or the other hard drive, were you? A. No, I had them with me. Q. The other hard drive as well? A. Yes. Q. So let's understand this then. When you came home from the Nyngan trip? A. Yep. Q. You took the laptop into your house? A. Yep. Q. You took the hard drive into the house? A. Which was in the bag. I also took the work computer into the house. Q. And you left these other two USB sticks in the car? A. I left my - I left my bag in the car, yes. Q. Containing those sticks? A. Yes. Q. So you take everything with you when you go on trips, all your pornography? A. I don't take all my pornography with me. Q. So was it just this trip that you took the extra hard drive? A. Yes, it was. Q. And are you saying you looked at none of those - none of the material on the USBs or the hard drive while you were away? A. Nothing. I looked at nothing on it. Q. Sure it's not just there for the purpose of you to have a bit of - if you feel like it, to have a look? A. No. Q. And when you go on any of these trips have you looked at your pornography collection? A. No. Q. So are you saying that from 20 May 2012 you're a changed man? A. Yes. Virtually, yes. Q. And you carry all of this material around with you? A. Yes. I should have destroyed it, but I didn't. Q. I put it to you, Mr Hansen, that that's just a lie? A. No, it's not. (T 2/3/16 pp. 44-47) 1. In summary, under cross examination the applicant claimed that, since 20 May 2012, he had not looked at the material stored on his devices, including the Cruzer 2 GB drive and the Imation 8 GB USB drive, which occasionally accompanied him in his work vehicle on work trips. Counsel for the applicant, relying on what he called in a shorthand way the "Briginshaw standard", submitted that the Commission was not in any position, on the evidence, to make a finding about the applicant looking at that material or the use of that material that goes beyond what was admitted for the purposes of the convictions. As I understand the submission, the approach of the High Court to the assessment of the probative value of evidence as disclosed in Briginshaw v Briginshaw [(1938) 60 CLR 336] would prevent the Commission from making a finding that, during the period between 20 May 2012 and 4 August 2014, when he was visited by the police, the applicant did not look at the child pornography which he had collected and stored on the devices which were seized by the police. I disagree. 2. It is worth revisiting Briginshaw to consider just what was there being considered by the High Court. Briginshaw was an appeal from the Supreme Court of Victoria (Martin J) by the petitioner, Mr Briginshaw against the dismissal of his petition for divorce from the respondent, Mrs Briginshaw, on the grounds that she had committed an act of adultery with third party, the co-respondent. Both the respondent and the co-respondent denied that they had committed adultery. There was no direct evidence that they had. 3. The "inexact proofs, indefinite testimony, or indirect inferences", which Dixon J was considering on the question of whether or not an act of adultery had occurred, comprised: 1. Evidence from the petitioner's sister that the co-respondent, had admitted to her that he had sexual intercourse with the respondent. The co-respondent denied making this admission. 2. Evidence from an inquiry agent of a similar admission made to him by the co-respondent in the presence of the petitioner's sister. The co-respondent refused to sign any statement and also denied making this admission, although his own evidence left the impression that his refusal to make a full admission, preferably in writing, was accompanied by no firm or explicit denial of the fact. 3. Evidence that, when the respondent was interrogated about her relations with other men by the inquiry agent, in the presence of the petitioner, no "indignant remonstrance" was evoked from her. 4. Evidence that, when the respondent was told by the inquiry agent of the co-respondent's admissions, she, according to petitioner, replied that, if the co-respondent had admitted it, she would. According to the inquiry agent, her reply was that, if the co-respondent had stated it, she would make a statement. The respondent denied these versions of events. 5. Evidence from the inquiry agent that he had overheard a conversation between the respondent and the co-respondent in which the latter was alleged to have said that "he had told them the truth". The respondent's evidence was that she told the co-respondent that she was sorry that she had got him "into the mess" and that they said he had admitted adultery, which he denied. 6. Evidence by an independent witness of an admission of adultery made by the co-respondent which was denied by the co-respondent and another independent witness who had been present when the admission was said to have been made. This was the character and quality of the evidence which led Dixon J to express the words of caution which he did, and which have been quoted so many times since. 1. In the present case, the matters which tell against acceptance of the applicant's claim that he had not looked at the child pornography stored on his devices since 20 May 2012 are: 1. On 20 May 2012, the applicant thought he was communicating with, and sending indecent material to, a 14 year old girl. He did not become aware for another two years and three months that the other party was, in fact, a police officer. The applicant offered no explanation as to why, from that particular date, he suddenly stopped watching the child pornography which he had collected and stored on his devices up to that point. 2. The child pornography remained stored on the applicant's devices in his residence throughout this period when, if he really wasn't using it for his own gratification, he could have easily disposed of it. He was not able to offer any explanation as to why he did not. 3. The applicant's claim that he occasionally took some of the drives with him in his work vehicle on work trips, but didn't look at the child pornography stored on them, simply beggars belief. 1. Further to this, the demeanour of the applicant when giving the testimony quoted at paragraph 104 above supported a conclusion that he was being evasive, untruthful and only prepared to admit to that for which there was direct and irrefutable evidence. To borrow again from Dixon J the "inherent unlikelihood" of the applicant's story on this issue being true tells against acceptance of it by the Commission. 2. I am unable to accept the applicant's evidence that he did not, since 20 May 2012, look at the child pornography stored on his devices, some of which accompanied him on work trips in his work vehicle. The glaring improbability of this evidence being must lead to its rejection. 3. Whilst the giving of untruthful evidence may not, of itself, be a sufficient basis in every case for the Commission to withhold discretionary relief, in the present matter, given the nature of the dishonesty displayed by the applicant towards the Commission, I would be disinclined to exercise my discretion in favour of the applicant even if I was persuaded that, in some way, his dismissal was unfair. 4. I am not so persuaded. 5. The application before the Commission for relief in relation to unfair dismissal is dismissed. 6. I so order. ********** 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: 30 March 2016