Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (o/b Paul Clark) and Family and Community Services [2016] NSWIRComm 1018 Hearing dates: 28 - 30 April 2015 inclusive and 15 May 2015 Decision date: 17 May 2016 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM Decision: Claim dismissed Catchwords: Unfair Dismissal-Misconduct conceded-Failure to maintain professional boundaries-Failure to comply with lawful and reasonable management directives- Accessed private records without legitimate reason-Claim that ultimate sanction of dismissal was too harsh-Additional training and supervision would have been sufficient-Inability of the applicant to recognise the breaches or accept blame or feel remorse-Unable to be placed back in a position of case worker-claim dismissed. Legislation Cited: Industrial Relations Act 1996 Cases Cited: Bankstown City Council and Peter John Paris [1999] NSWIRComm 368; Perkins v Grace Worldwide (Aust) Pty Ltd [1997] IRCA 15 (7 February 1997); Australian Services Union of NSW (o/b Valentina Angelovska) and St George Youth Services Inc. [2010] NSWIRComm 1051; Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 Category: Principal judgment Parties: Public Service Association and Professional Officers Association Amalgamated union of NSW (Applicant) Family and Community Services (Respondent) Representation: Mr S Cosgrove (Applicant) Mr K G Bennett, Counsel (Respondent) File Number(s): IRC 576 of 2014; 2016/51580 DECISION Background 1. The Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales, on 28 July 2014, filed an unfair dismissal claim, pursuant to section 84 of the Industrial Relations Act 1996 (the Act) in relation to the alleged unfair dismissal of its member, Paul Clark, by the Department of Family and Community Services (FaCS). 2. Mr Clark commenced employment with FaCS in 2008 (30 July 2006) as a Child Protection Case Worker pursuant to the terms and conditions of the Crown Employees (Public Service Conditions of Employment) Award 2009. 3. Mr Clark was responsible at any one time for a number of young people in troubled circumstances. The general rule is that a Child Protection Case Worker would be responsible for a client in difficult circumstances until that client was allocated to an Out of Care Case Worker who would then take over the role and support the carer. The Child Protection Case Worker would then move on to another client in similar circumstances. Nevertheless, Mr Clark stated that he has been required to remain the case worker for at least two, if not three, young persons despite final orders having been issued in relation to them. 4. A suppression order was issued in relation to the identification of the 16 year old female client, the subject of these proceedings. 5. J has had a long history of Department and Police involvement in her family since she was a few weeks old. Her troubled early life had been characterised by her father's domestic violence, alcohol and drug abuse, criminality and squalor. Her mother took J and her two brothers to live with her new partner. Those were happy times for J but unfortunately lasted only 5 years because J's mother died suddenly when J was 12. J and her brothers moved back with their then blind father and she began looking after the whole family. Support from external charity organisations failed because of non-co-operation by her father. DoCS was finally able to intervene in March 2012 and to remove J (then 14) and her siblings and place them in the interim care of the Director General. 6. Mr Clark commenced working extensively with J and both of her brothers from April 2012 in relation to a placement with a relative/kinship carer. They were placed with a paternal uncle in Queensland who eventually rejected her and she was returned to Sydney. 7. J first disclosed her self-harm to Mr Clark on 5 November 2012 causing him to arrange, in December 2012, attendance for her at an adolescent mental health clinic. 8. In February 2013, placement was found for J at the Burdekin Association (a non-Government organisation) in Manly where she lived with another teenage girl and a live-in carer, Lenore. Burdekin also assigned a case worker/manager to her, Adrienne Chartres. 9. J disclosed to Mr Clark, on or about Mother's Day 2013, that she had made at least 3 or 4 attempts at suicide. He, in consultation with Lenore, took her to Manly Hospital for emergency psychiatric assessment the following morning. J was released from Hospital on the proviso that a Safety Plan was in place which included a requirement that Mr Clark call J every evening pending further assessment. 10. J was assessed, at that time, as having an anxiety disorder and was prescribed Prozac and weekly sessions with a clinical psychologist. As of 5 July 2013, she was assessed as meeting the criteria for a depressive disorder with complex trauma syndrome. 11. Management practices were changed in or around June/July 2013 resulting in Mr Clark being advised that he would cease to have any form of contact with J following her transfer from the "child protection" teams to the "out of home care" teams. 12. Supervision of J was formally transferred to Caseworker, Margaret Weyman. Mr Clark continued, during the period February – August 2013, to express his concerns about J's mental health and her negative feelings towards her carer, Lenore, in emails or texts to his Manager, Ms Carmel Zeglis, and to Ms Adrienne Chartres. 13. On 16 August 2013, Mr Clark proposed that he be appointed as J's mentor as he considered that, in J's vulnerable state, closing the door on any communication with him would be both dangerous and unnecessary. That proposal was rejected by Ms Zeglis. 14. J overdosed on Panadol on 9 September 2013. She called him at 7 am the following morning and allowed him to make arrangements for her to receive treatment. 15. A meeting was arranged between Mr Clark, Burdekin staff and J on 18 September 2013 to inform her officially that he was no longer her case worker and to say goodbye. It was not disputed that the meeting was aborted due to external factors. 16. Mr Clark met up with J on 4 October 2013 in Manly. He bought her a pair of gloves and a pair of boots. He said that he advised her on that occasion that he was no longer her case worker. 17. Lenore died unexpectedly on 9 October 2013. J was moved that day to another house with a new carer, Lynn. Mr Clark was not privy to her new residential address. J also changed schools. Mr Clark suffered a heart attack on 10 October 2013 and was absent from work for approximately 6 weeks. 18. Mr Clark said he communicated his concerns to Burdekin staff and his Manager about the direction for him to cease contact with J. He also maintained contact, both prior to and post his sick leave, with the FaCS Psychologist about the matter who wrote 3 reports which he uploaded on the KiDS database. He met with the Psychologist and his Acting Manager, Ms Moffat, to express his concerns which he detailed in a follow up email. He also uploaded the email on the KiDS database but did not keep a copy of either the email or the reports. 19. Upon resumption at work in late November 2013, he resumed phone/sms contact with J until February 2013, albeit on a fortnightly basis. 20. Mr Clark obtained J's new residential address from the KiDS database. He bought J a number of Christmas presents, and left them in a bag, individually wrapped, at the front door as no one was home at the time he dropped them off. 21. Mr Clark met J on 10 January 2014 and had lunch with her in a public café by the beach in Manly. They then went for a walk, took some photos on the beach and he bought her ice-cream. 22. Mr Clark was suspended with pay on 21 February 2014 following receipt of allegations of misconduct dating from 2013. A hand-delivered letter to Mr Clark from Clare Donnellan, District Director, on the same day spelt out two allegations of misconduct/reportable conduct. In further correspondence to Mr Clark, dated 24 March 2014, Ms Donnellan set out a third allegation of misconduct/reportable conduct. He was advised that an independent investigator had been appointed to prepare a report on those allegations. 23. Mr Clark's conduct was eventually determined as reportable. Following consideration of his written submissions dated 17 June 2014 and personal representations made to Ms Donnellan on 3 July 2014, it was determined that disciplinary action, in the form of dismissal, would be taken, effective from the date of that notification to him – 4 July 2014. He was also advised that, as a consequence of his actions, a notification would be made to the NSW Ombudsman and the Office of the Children's Guardian. He was further advised that a copy of that notification would be placed on his Personnel file and may be referred to in the future if he chose to re-apply for a position with FaCS. 24. Conciliation proceedings before Newall C on 25 August 2014 failed to achieve a settlement of the claim and the matter was listed for hearing before the Commission as currently constituted. 25. The findings in the investigation were not disputed by Mr Clark or his Association. What was in dispute was the severity of the penalty paid by Mr Clark. 26. The Applicant is seeking reinstatement to his former position or monetary compensation. He is not seeking re-employment to another position. The Allegations 1. The letter of termination set out the grounds for Mr Clark's dismissal. The letter from the investigator, dated 15 April 2014 set out details of each of the allegations as follows: 1. You have failed to maintain professional boundaries with J, a 16 year old client of Community Services who is under the parental responsibility of the Minister. The particulars include, but are not limited to: (i) When you were J's Caseworker, you used your personal mobile phone to contact J on numerous occasions and allowed J to contact you, including out of hours, on your mobile phone. (ii) When you were J's Caseworker you purchased her a pair of high-heeled Jeffrey Campbell shoes. (iii) On an occasion when you were no longer her Caseworker, you met J at St Leonards train station. (iv) In or around the end of November 2013 when you were no longer J's Caseworker you sent her a text message and asked to meet up. (v) In or around the end of November 2013 when you were no longer J's Caseworker you attended at her new home address and took her to Manly for lunch at a beachside restaurant. (vi) Around Christmas 2013 when you were no longer J's Caseworker, you left a hamper of individually wrapped presents for J outside her home address. The presents included a cookbook, herbs and spices, calligraphy pens and photographs of J and her brother. There were also blown up photographs of J's face. (vii) On numerous occasions when you were no longer her Caseworker, you texted J and called her. Your texts included references to "The trees are very green here at Macquarie Park" and "I'm sitting at Manly Beach looking at the beautiful sunset". (viii) You sent messages to J after school and on weekends. (ix) On 19 February 2014 when you were no longer J's Caseworker, you called J's mobile phone on four occasions, at 5.11 pm, 5.19 pm 5.51 pm and 6.07 pm. (x) On 19 February 2014 when you were no longer J's Caseworker, you texted J on five occasions. (xi) On one occasion you said to J "It is our secret". (xii) You also asked if she would add you on Facebook. 2. You have failed to comply with a lawful and reasonable management directive not to have any contact with J, a 16 year old client of Community Services who is under the parental responsibility of the Minister. (i) In email correspondence dated 14, 16 and 19 August 2013, your Manager, Carmel Zeglis, advised that after the review on 26 August 2013 you would be saying goodbye to J after the meeting and will no longer be her Caseworker. She advised that "We have discussed the need to be clear with J and that you will no longer be her Caseworker and that there will not be any future contact face-to-face or by phone after the review meeting on 26 August 2013". (ii) At the review meeting that was held on 27 August 2013 (not on 26 as above) Margaret Weyman took over the management of the matter until it was transferred. You were directed that you were no longer J's Caseworker and that you would have to say goodbye to J on 28 August 2013. (iii) Due to an urgent response you were not able to attend the meeting scheduled for 28 August 2013 and therefore in email correspondence dated 29 August 2013 Carmel Zeglis stated "As we discussed, it is important for J to know that Paul will no longer be her Caseworker and for this not to drag out. Paul will be available tomorrow and is on training the following week. The next available time would be Wednesday, 11 September. As discussed, J may find it difficult that Paul will no longer be her Caseworker and that support from Burdekin will assist Paul and the process greatly. (iv) In email correspondence on 4 September 2013 you were further reminded that when you returned to work the following week you were to organise a time to say goodbye to J and that it needed to happen only with the support of Burdekin staff. If a meeting could not occur you were told that you may need to write a letter to J as you are no longer the Caseworker. (v) On 5 September 2013 in a text conversation with Natasha Parodi, A/MCW, Ms Parodi stated "You need to insist that she calls the Burdekin Workers or after-hours number and explain that u r no longer her Worker. When you get back from you need to arrange a time to say goodbyes Asap. If this is not possible you may have to write her a letter given that you no longer have carriage of this matter". (vi) Despite these directives from management, you continued to have contact with J up until 19 February 2014 in that you continued to contact her on her mobile phone, delivered presents to her home address, took her out for a meal and attempted to meet up with her. 3. You accessed records in KiDS relating to J, a 16 year old client of Community Services who is under the parental responsibility of the Minister, without having legitimate reason to do so. On 18 and 19 November 2014, without legitimate reason you accessed records, including, but not limited to: • 1-11GTUHV (case planning meeting of 27 August 2013); • 1-11J9VOK dated 21 October 2013 (a regional review panel); • 1-1107W89 dated 21 October 2013 (an email from Burdekin Caseworker providing an update on J's medical and placement details); • 1-11N50KU (a file note dated 6 November 2013 created by Margaret Weyman); • 1-110988X dated 12 November 2013 (a safety plan completed in J's counselling appointment on 11 November 2013); • 1-11R3PYM (an email from him to Patricia Moffat dated 27 September 2013 to which he attached psychologist consultation records). The Evidence Ground 1 – Failure to maintain professional boundaries 1. Mr Clark was assigned as J's case worker. He commenced working extensively with J and both her brothers from April 2012 in relation to a placement with a relative/kinship carer. He had not been successful in finding someone to take on responsibility for J. He met her at Sydney Airport on 5 November 2012 when she was sent back from Queensland by her paternal uncle who had rejected her. She was placed in a short term Refuge in the inner city for a period of about two months. 2. Mr Clark said J first disclosed her self-harm to him on 5 November 2012. During cross-examination, he agreed that he gave her his mobile telephone number while she was still at the refuge in November 2012. He accepted that he did not advise anyone of having done that until his Manager, Ms Zeglis, questioned him about it in May 2013. Mr Clark conceded that J could have called Helpline, a system which is specifically designed to provide after-hours assistance to persons in a troubled state. It is manned by case workers and case managers from FaCS who, while talking to her over the telephone, are able to access her file to obtain an appreciation of her background. Helpline staff have a flying squad, members of which can be sent out to assist persons who have rung in for help, they can ring for the police, ambulances and any other relevant service. Mr Clark confirmed that J was aware of the Helpline service and had utilised it when she was 12 years old. He pointed out, however, that she had told him that she would never ring Helpline because she did not want to talk to strangers. He could not recall if he ever advised his Manager of that reluctance. 1. Mr Clark explained to the investigator that there were a small number of mobile telephones shared within the pool. He advised the investigator that it was neither practical nor safe to rely on the work mobile numbers if a case worker was required by a client in an emergency. It was for that reason that he gave J his personal mobile number. He stressed that he had never done so before with any other client. He said he had given her the number for her own safety. He stated that when she arrived at Sydney Airport she had been rejected by everybody, her family, and one of two girlfriends - "She was incredibly vulnerable and alone in the city and there I was and I took on the responsibility being someone she could turn to. Pretty much that was all she had and so I can't remember when I gave her that number but it was probably some time after that". 1. He contended, during that interview, that he was acutely aware of the need to maintain professional boundaries and for that reason, had eventually discussed it with Manager Client Services at Fairfield, Kevin Douglass, and with FaCS psychologist, Meredith Thomas, who confided in him that she had done the same thing a couple of times. He described it as something that happens "out of necessity". 2. J included in a statement to the Investigator that she thought it was weird that Mr Clark kept contact only with her and not with her brother. She stated that he used to pick her up from Lenore's and take her to Manly. She said she saved his mobile number when he messaged her the first time. He would ring her and if she did not pick up he would follow up with a message. 3. It was the Refuge that found J longer term permanent placement in Manly with the Burdekin Association. He agreed that he was pleased with that assignment because Burdekin not only provided a carer, Lenore, but a caseworker manager, Adrienne Chartres. In accordance with Burdekin's rules, he liaised with the carer through the case worker/manager. 4. As a result of her admission to him of self-harm, Mr Clark said he arranged, in December 2012, for her to attend an adolescent mental health clinic. Mr Clark added that J had been released from Manly Hospital on the proviso, and insistence, from her psychiatrist that there was a safety plan in place. It was agreed that both he and Lenore would keep track of where she was at all times particularly as she spent half or more of her time with friends all over the northern districts. It was also agreed that he would call her every evening before 8 pm. He considered that it was just as important for her to be able to reach him. 1. In her statement to the Investigator, J stated that, at first, she found Mr Clark easy to talk to about how she was faring. She admitted that she texted him when she tried to overdose but was not clear why she did that. She opined that it was probably because at first she did not feel comfortable talking to Adrienne and Lenore but that changed. 2. Mr Clark stated in his statement that J's relationship with Lenore broke down in or around February 2013. He said that he felt that the acute mistrust she felt for Lenore had caused her to become very vulnerable and to rely on him more for support. Yet, during cross-examination, he confirmed that the relationship with Lenore and Burdekin was as described by him in his Care Plan dated 23 April 2013, in other words J thought Lenore was very nice and she liked living in Manly. 3. Mr Clark further admitted that the statement was also inconsistent with the view he had expressed in J's "Amended Care Plan - Permanency Plan" which he prepared and filed in the Children's Court on 24 April 2013 in which he described her current environment as "a warm caring home". He agreed that the report summed up the nature of the relationship that was in existence at the time he prepared the report, as he understood it. He insisted, nevertheless, that the relationship did break down but that it did so over a period of time. He described the relationship with Lenore as at times fragile and at other times good. 4. Mr Clark said that on or about Mothers' Day 2013, J disclosed to him what was going through her mind at that time and that she had made at least 3 or 4 attempts at suicide by taking large doses of Panadol in the previous one or two weeks. Mr Clark said he called the Mental Health Team at Manly Hospital at about 1 am for advice. He said that he was told that if he did not take her to the hospital first thing later that morning, police and ambulance would be sent to pick her up and have her scheduled. He said he then rang Lenore and advised that he needed to take J to the hospital first thing in the morning. Lenore had been very co-operative. She knocked on J's door, spoke to her briefly and observed her. She had not attempted suicide that night, "It was a balance of trying to be expedient without being in a panic." He arrived at 6.30 am and took J, on his own, to Manly Hospital for emergency psychiatric assessment. Ms Chartres arrived later. He said J told him that if anyone else had attempted to take her to the hospital she would have refused. J was scheduled temporarily and the Psychiatric Registrar would only allow her to leave the hospital once a Safety Plan was in place. The Plan required Mr Clark to call J each evening pending further assessment and Lenore to keep a closer eye on how and where she was as she used to spend about half of the week with friends. He said he advised his Manager, Ms Zeglis, of what was happening first thing that morning. During cross-examination, Mr Clark admitted that the events of Mothers' Day 2013 came as a shock to everyone, including himself. He stated that he was aware, in November/December 2012, from her counsellor/psychologist at Camperdown, that she had suicidal ideation but was not aware that she was having auditory or visual hallucinations or had attempted suicide until that conversation in May 2013. 1. Ms Chartres argued that Mr Clark's reaction was "unnecessarily strong" in relation to the advice he received from J. She pointed out that as she was picking J up from school on Monday afternoon, 13 May 2013, J told her that she had taken quite a number of Panadol. She said that she observed that J appeared healthy and had been at school all day with no adverse reports. She concluded that J was not suffering from any complications one would expect from taking an excessive number of Panadol tablets. When she returned to Burdekin, she checked with Lenore who advised that when J returned home the previous day, Mother's Day, she did not appear unwell, had a full dinner and woke at 6 am on 13 May to take herself off to school. She formed the opinion that J's statement was the action of someone seeking some help or support and so she discussed with her the dangers of taking an excessive number of Panadol tablets and advised her that both she and Lenore were available if she wanted to talk about anything of concern to her. She also pointed out that there were professionals available to discuss and put right any issues she had. 2. Ms Chartres made a file note on 14 May 2013 regarding a text message she received from Lenore: Test msg received from Lenore at 8.21 am: "Hi, J appeared ok last night, playing guitar, singing her little heart out! After not answering calls from Paul he called me twice. She did eventually talk to Paul. See you at 9:30?" 1. Ms Zeglis held a supervision meeting with Mr Clark on 20 May to specifically discuss the fact that J had contacted him on his personal mobile on Mothers' Day and to put in place strategies for the Burdekin staff to be available after hours to deal with any future incidents. He insisted that they talked mainly about the fact that J had made several attempts at suicide two or three weeks before Mothers' Day and that Adrienne Chartres was aware of at least one attempt but had not reported it to either the Respondent or Helpline so that they can work together as a team to assist J. He contended that Ms Chartres had, at his insistence, subsequently made a report to Helpline about it. During cross-examination, Mr Clark agreed that he had relied on the Out-of Hours policy to support his actions but contended that his stress levels had been responsible for his own forgetfulness in contacting Helpline to advise of the incident within 24 hours. 1. Mr Clark agreed that he had attended a supervision meeting with Ms Zeglis and Mr Kevin Douglass, now retired. It is of grave concern that Mr Clark could not recall the details of such an important meeting save to say that Mr Douglass was "being concerned and supportive". Mr Douglass said he had touched on the following issues: 1. The need to have boundaries and strategies in place to prevent J from contacting Mr Clark on his personal mobile phone; 2. The risks associated with giving out personal telephone numbers to clients and the role of case workers meant that he was not separating work pressures from life; 3. Case workers should not be personalising their relationships with clients to the extent that they are called outside of work hours. Neither should case workers, by their conduct, encourage clients to think that it is acceptable to contact them outside of hours; 4. Such parameters should be established at the commencement of the case worker/client relationship so that clients contact Helpline for any out of hours issues to avoid teenage clients from playing professional staff off against each other; 5. A case worker should not be identified as a friend and that it was detrimental to the client to develop trusting relationships with case workers, particularly when they have been let down in the past; and 6. He was concerned, from a work health and safety perspective, that Mr Clark have a proper break from his work after hours to avoid burn out and to avoid risk of allegations of inappropriate behaviour. Those risks existed for him even if his actions were well intended. 1. Mr Douglass opined that the inappropriate referrals made by Mr Clark without actioning the approved case plan had resulted in J missing out on appropriate placements. 2. Mr Clark agreed that he had developed a trusting relationship with J because he felt that it was very important to do so but insisted that he had not adopted the role of being a friend. 3. J's mental health assessment and treatment were commenced. Mr Clark stated that J was assessed as having an anxiety disorder and was prescribed tablets and weekly sessions with a clinical psychologist. The Safety Plan continued with his daily calls to J. Ms Chartres argued that the psychiatrist, in conjunction with the psychologist, had, in a letter dated 5 July 2013, stated that J's symptoms met the criteria for Depressive Disorder and Complex Trauma Syndrome. 4. Ms Chartres tendered a series of emails between her and Mr Clark in which he pressed for a meeting to be held at J's home to identify her present establishment needs. The usual practice was to keep carer's properties separate and homely and allow case work issues to be dealt with in Burdekin's office. It is noted that in one of those emails he had stated, "… I reserve the right to do home visits if needed". Ms Tanya Preston, Program Co-Ordinator at Burdekin, confirmed that home visits by FaCS staff are not encouraged and are subject to negotiation. 5. Ms Preston stated that Ms Chartres had complained to her about her discomfort with Mr Clark's involvement with J. She tabled an email that she forwarded to Ms Zeglis on 4 July 2013 in which she detailed a conversation she had with Mr Clark. That email relevantly read: Paul spoke about how J doesn't have any people in her life that have stuck by her. He told me he had a conversation with J either yesterday or the day before about how her case would be moving on. He asked J if they were friends and J said they were. He told her he would like to continue having contact with her when her case is no longer managed by him. He also spoke about he feels J has grown and matured in recent time she is no longer a young girl but turning into a young lady (NB: when we met Paul at the Mall for J to get her nose pierced on Tuesday J was complaining that she needed new bras – Paul enquired whey as we had purchased underwear with the closing allowance and J explained because they were now too small). On Tuesday when we were at Queenscliff waiting while J was seeing the Psychiatrist Paul informed me that he would like to continue to have a role with J when her case moves on – he expressed wanting to be a mentor and that he would have adopted her if it weren't for the issues this would bring up with FaCS. 1. In or around June or July 2013, Mr Kevin Douglass retired and was replaced by Ms Patricia Moffat who changed management practice by transferring cases quickly from the "child protection" teams (of which Mr Clark was a part) to the "out of home care" teams once Final Orders were made by the Children's Court. His Manager, Carmel Zeglis, advised him, prior to her proceeding on annual leave on 8 July 2013, that he had to make it a priority to transfer J's file and it meant he would cease to have any form of contact with her after the transfer. He said he expressed a concern to his Manager about the risk to J's mental health of what would amount to two transfers of case workers in quick succession – first to the "out of home care" team at Fairfield and then to the Chatswood office. He said he advised J, during a visit to her clinical psychologist, that he would no longer be her case worker when she transferred to the Chatswood office. 2. Mr Clark claimed that he proceeded down the transition track despite his concerns. Supervision of J was formally transferred to case worker, Margaret Weyman, who had not yet met her. Mr Clark stated that, during the period February – August 2013, J repeatedly expressed to him her dissatisfaction with Burdekin and he passed on his concerns to his Manager, Ms Zeglis, and to both the Burdekin Co-ordinator and Case Manager but his concerns had been ignored. 3. Nevertheless, by the time Ms Zeglis returned from annual leave on 5 August 2013, almost a month had transpired and J's file had not been transferred. Mr Clark contended, during cross-examination, that he had been working on it attempting to complete the case plan, in conjunction with Burdekin, with particular focus on the mental health care plan which involved consultation with a psychologist amongst other people. He pointed out that he also had other clients to look after. 4. Mr Clark rejected the notion that, given the instruction to transfer the file and given the level of backup she had in place, he should have, at the very least, taken practical steps to reduce his level of influence in J's life and to ensure the Burdekin staff were taking a more proactive role in her life: I did, My concern was that J kept on saying how unhappy she was, unhappy with her carer, Lenore, I kept bringing that to their attention, they kept saying everything's fine, there's no problem, they're all getting along beautifully so I'm hearing this from Lenore and something else from Burdekin. I, you know, was not wanting them to have a bad relationship, it was very important that they have a good relationship, but they didn't seem to be having it according to J, so she had spent a lot of time with her friends, or just sitting in her room. At that time I was trying to step back as best I could. 1. Mr Clark attended a meeting with Ms Zeglis on 16 August 2013 during which, he said, he expressed strong concern that J was vulnerable and that closing the door on any communication with her would be both dangerous and unnecessary. While accepting the new administration arrangements, he suggested that safe communication, such as mentoring, would assist J to transition from him to another case worker. Without consultation with him, and without any explanation, Ms Zeglis held a discussion with Ms Moffat and advised him that he was not to have any further contact with J. 2. Ms Weyman gave evidence that J's file was transferred to her to organise so that it could be sent from the Fairfield Office to the Chatswood office. She discovered that it needed a week's work to update the file in a number of respects – there was no case plan; all health records were not on the system; a school report was not attached and follow-up work was needed to be done to obtain a birth certificate. In addition, she needed to conduct a risk assessment and to follow up with Burdekin to ensure a safety plan was in place following the overdose incident on 9 September 2013. 3. Mr Clark agreed that, in Ms Zeglis' absence, he made representations on behalf of J to Jacqueline Elassal, her replacement, and convinced her to increase J's allowance by an additional $70 to $150 per week. He contended that the representations were made after a series of lengthy discussions with J to justify the claim. That increase was reversed upon Ms Zeglis' resumption from leave. 4. Ms Chartres stated that, on 2 September 2013, J advised her that Mr Clark had discussed a "furniture allowance" with her and that he had agreed to buy her a TV and Xbox 360. She stated that she was put in the uncomfortable position of having to advise J that he was no longer her case worker and that she was required to relay her needs to Ms Chartres to pass on to her new case worker. Nevertheless, she advised J that, in view of the fact that Mr Clark had raised her expectations, J should obtain some quotes for her and she would look into the matter. 5. On 6 September 2013, Mr Clark emailed or texted Ms Zeglis and Ms Adrienne Chartres to again express his concerns about J's mental health and her feelings towards Lenore who she called a "bitch". Ms Chartres said that she spoke to J who said that she had no personal issues with Lenore and had merely repeated to him what the other resident client was saying about Lenore. 6. On 9 September 2013, J overdosed on 24 Panadol tablets and was up all night. Despite allegedly feeling very sick, she had refused to provide her friends with her address or her carer's number. Mr Clark said she rang and advised him at 7 am. She allowed him to ring Lenore who was asleep across the corridor from her to arrange for an ambulance to the Hospital. Mr Clark said he felt a serious responsibility and duty of care to J in view of the level of trust she had in him. Ms Chartres was not aware of any reason why J would overdose on 9 September considering the mood she had been in a couple of days before. She recalled that she had received a text message from J on Friday, 6 September 2013 advising her that she was going out to lunch with friends and shopping on the weekend. 1. Ms Preston stated that she received a telephone call from Mr Clark on 16 September 2013 criticising the level of case management provided by Ms Chartres and suggesting that her carer was not doing enough for J. He believed that she deserved more support, counselling and treatment. Ms Preston remained concerned at the level of support Mr Clark continued to offer J. She discussed with him the need to give Ms Chartres an opportunity to get to know J pointing out that she was being hindered by him continuing to be available for J. In addition, Burdekin needed to build a rapport with J coming into a 24/7 residential care environment yet that was being hindered by the fact that J was contacting Mr Clark directly because he was making himself available to her. 2. Mr Clark arranged with Burdekin staff to meet with them and J on 18 September 2013 to inform J officially that he was no longer her case worker and to say their goodbyes. Unfortunately that meeting was aborted due to external factors. In the interim, he said he deliberately avoided several approaches by J to meet her in person and referred her instead to the Burdekin team. 3. J said that Mr Clark suggested to her that they meet at St Leonards Station before September 2013 so see how she was doing. They met for about 5 minutes. In his statement, Mr Clark stated that J messaged him on 4 October 2013 and so they met up at St Leonards Railway Station as they were both travelling to Manly at around the same time. He advised the investigator that the meeting was spontaneous. He was not sure who texted who first but he recalled that he texted her to ask how she was faring and, as it turned out, both were heading in the same direction and so he caught the train up to St Leonards Station and they caught the same bus together to Manly. 4. J was hungry and so he bought her something to eat then they walked down the Corso together at Manly. It was evening and the shops were open. Her hands were cold and so he bought her a pair of gloves – which, he stated, was not unusual for a case worker to do. They had walked a bit further and she stopped to admire a pair of Jeffrey Campbell high heeled boots which had been reduced to $50 and which she loved. He thought she had a date so he bought her the shoes with Department money. Mr Clark said they caught the bus back. During cross-examination, he contended that it was routine for case workers to go to cafés and walk round shopping centres with young clients. 5. Mr Clark explained that J was not in foster care placement so all her clothing was funded by the FaCS directly or through Burdekin. The purchase was later approved by his Manager although he would have gladly paid for the boots if reimbursement was not granted. He did not know whether J was aware that they were paid for out of her clothing allowance. He admitted to the Investigator that he was aware that the boots were inappropriate because they were incredibly uncomfortable but pointed out that they made her happy. He recalled that when they went to pick up her clothes from her father's house, her belongings were in a garbage bag with some old rags which one would not even donate to charity. Ms Chartres gave evidence that it was her role to buy clothes for J out of her clothing allowance. She saw J wear the boots only once – when she picked her up for TAFE the day after they were given to her. She considered them, platform high heels, age inappropriate and did not fit her regular style as J is a bit of a tomboy. 1. J recalled in her statement to the Investigator that she had liked the boots which she saw as they were walking past a shop and he bought them for her. She recalled that Lenore had commented that it was weird that he had done that and went on to say that he had better not make any further contact once he was no longer her caseworker. 2. As he had not seen J in a while, Mr Clark said he used the opportunity on 4 October 2013 to advise her in person that he was no longer her case worker but added that she could continue to speak with him if she wished. He said that she advised him that she was not taking medication, she was not seeing a psychologist and she was not getting on with Lenore. He said he remained extremely concerned about her mental health because J had terribly low self-esteem. She told him that she was considering liposuction because she had been criticised as being fat. She asked if FaCS would pay for the surgery. Ms Chartres was aware that J was not taking her anti-depressant medication but pointed out that it was her choice. No-one – herself, Lenore, or Burdekin – could force her to take them albeit she and J's Clinical Psychologist had reinforced to her the benefits of remaining on that medication. 1. Mr Clark asserted that Ms Chartres had unilaterally decided that J was no longer required to attend her sessions with her psychologist/psychiatrist. He insisted that he formed that view because the decision was taken without consultation with him or FaCS. Ms Chartres indicated that she had attended the weekly counselling appointments between the Clinical Psychologist and J who had reported improved wellbeing. There came a time when J had very little to say during those sessions and finally agreed with the Clinical Psychologist that she cease attending the sessions. Mr Clark did not resile from his view during cross-examination despite the fact that the evidence revealed that he had received an email from the clinical psychologist dated 6 August 2013 in which it was stated that she had met with J who reported "decrease in mood", generally feeling better and did not want to keep attending the sessions. She added that she did not consider J to be suicidal and that J had denied any thoughts, plans re self-harm or suicidal thinking. The Psychologist noted that there was a meeting with the psychiatrist on 26 August during which her medication would be reviewed. 2. Mr Clark said he had seen J towards the beginning of October and she seemed to be bedraggled, she was jumping trains and did not have any money. She told him that she had lost her ticket. Mr Clark said he communicated his concerns about Burdekin's management of J to Tanya Prescott (Burdekin Program Coordinator); and about his concerns with Ms Zeglis' decision to cease contact with J to Meredith Thomas (FaCS Psychologist) and to Patricia Moffat (his Manager during Ms Zeglis' absence on leave). 3. Mr Clark was absent on sick leave for 6 weeks from 10 October 2013. Lenore passed away on 9 October 2013 and, as a result, J was transferred to a new house and was allocated to a new carer, Lynn. 4. Both prior to, and post, his sick leave he said he maintained contact with the FaCS psychologist who prepared three reports over that period of time. He convened a meeting with the psychologist and Ms Moffat to talk through those concerns and despite Ms Moffat agreeing to respond to the issues, she had not done so, even after he had emailed her expressing deep concerns about the issue. He uploaded the reports and the email on the KiDS database but did not retain a copy. 5. Mr Clark admitted, during cross-examination, that her knowledge of any of the events "was specifically through the prism" of his eyes – he was not J's case worker at the time of the last two meetings he had with her. Ms Weyman noted that Mr Clark had not invited her to those meetings despite the fact that she was J's case worker at the time. He gave evidence that he had not considered inviting Ms Weyman to those conferences. 6. Upon his return to work in late November 2013 and up until February 2014, he maintained fortnightly phone or SMS contact with J because he discovered that Margaret Weyman had not met J and her level of involvement and support was much less than what he had been providing. FaCS management had decided to reduce the resources provided to J notwithstanding her suicidal behaviour, self-harm and mental health problems. 7. In addition, having witnessed her appearance the last time he saw her in early October, he decided to send her a text message towards the end of November 2013 and ask to meet up with her. He went to her home address and took her to a beachside restaurant in Manly for lunch. He had paid for her hamburger and chips "like a friend or something". He later, in the investigation interview, stated that he had considered himself more like "a representative of the department". They both thought the food was overpriced and they "probably picked the wrong place but there you go". He felt, considering how she had looked the month before, that he would "maintain some sort of thread of contact. Nothing too intrusive". He agreed that he was keeping the door open in consideration of her physical and mental wellbeing. He admitted that he had looked up J's new address on the KiDS system "as a sensible precaution" in case, as had happened previously, she called him in a dire situation and he needed to get help to her. 1. J said in her statement when Lenore passed away she did not hear from Mr Clark for a while. She recalled that she saw him in approximately the end of November/early December 2013 after he messaged her to meet up. He picked her up at Lynn's house. She had not provided him with the address. They went to a beachside restaurant in Manly and he had told her not to worry about the price. They chatted. She was aware that he had an ex-wife whom he saw frequently. He told her over lunch that he would not be her caseworker for much longer but did not say that it was the last time he would see or that he was not allowed to have any further contact with her. 2. Mr Clark said that he spoke to J's clinical psychologist who had observed them together and while she did not indicate approval of the relationship, she did not make any negative comments. She did make a comment that he was one of the few examples J had of "a secure relationship with an adult or a strong attachment with an adult". 3. Mr Clark agreed that he left "a carry bag" at her new home around Christmas 2013 with individually wrapped presents, valued at around $50, and a card. He said he could not explain why he had done it. He had knocked on the door and when he got no response, left the bag on the veranda. He normally would have posted them but had left it too late. He was aware that she, like him, enjoyed cooking Indian food. It was her way of communicating with Lenore. The Charmaine Solomon "Complete Asian cookbook" was on sale in the office by Margaret Weyman for only $20 and he bought J the spices to go with it. He told the investigator that he bought the book for J thinking it would be an ideal present to give her and bought her the spices to go with it. Yet, during cross-examination, Mr Clark stated that he did not know he was going to give it to J when he bought it. He had observed J doing graphics and so he bought her the calligraphy set which was on sale for $5. She, like him, also seemed to enjoy photography and so he had blown up the photographs he took of her at Warringah Mall when she had her nose pierced. He thought that they were very nice photographs of J. He admitted that he did not consider the impact her blown up face might have on her, "It wasn't necessarily the forefront of my mind." because "I think it was undeniable evidence she's got a lovely face…". Again, he did not stop to think that sending her not one but a number of Christmas presents might be considered professionally inappropriate, "… Just very spontaneous really". He recalled that she rang him not long after Christmas and thanked him for the presents which she said she loved. He said that she sounded happy. 1. Lynn Briden, J's carer, observed her initial enthusiasm when she got the bag of presents but she later appeared unnerved and surprised. She said J read the card and advised her that they were from Mr Clark. When she opened the large envelope and saw the photographs of herself she had looked surprised and went and stayed in her room for a while. Ms Briden said she observed her become quiet and withdrawn. 2. J said that she arrived home one day to find a big box of individually wrapped Christmas presents from Mr Clark. She thought it was odd that her brother had not been included. Some included her brother. One was taken at her Grandmother's house but she could not recall Mr Clark being there, others were of her brother's birthday party and were taken by his case worker; there was a photo of her at Warringah Mall after she had her nose pierced and Mr Clark took the photo in the presence of Adrienne Chartres and there were some that he had taken of her at Hornsby. She sent him a text message thanking him for the presents. 3. Ms Briden said that, on 19 February 2014, J disclosed to her that Mr Clark had attempted to contact her on five occasions on that day to the point where she was "freaking out". She went on disclose the extent of the contact that Mr Clark had been seeking to make with her concluding with the advice that she did not wish to have any further contact with him. Ms Briden recalled the following conversation: J: Lynn, I just want it to stop. It's making me feel sick. Lynn: You are safe here. J: (in a loud voice) He knows where I live for God's sake! Lynn: J, this is a safe house for you. I want you to stop worrying. J: What if I see him? He lives in Manly. Lynn: J you need to calm down. Stop worrying. I'm not going to let anything happen to you. I want you to trust me and Adrienne that this is going to be sorted out and this is going to stop because you are here not to feel fearful. You are here to feel safe and know that you can trust people around you. I will not let anybody hurt you. If you ever see him or his car just ring the Police. 1. Mr Clark confirmed that he sent J text messages including references to the trees and along those lines "something neutral". He stated that sometimes it was hard to figure out what to write so he would write about where he was just "to stay connected" to remain in her life as "a kind of constant steady presence". Sometimes she would respond and other times she would not. If she did not want to speak to him again then he considered that good because it was a sign that she had moved on, "It didn't seem appropriate to me to just switch off, cut off, whatever the word is". 2. Mr Clark could not recall whether he rang J after school and on weekends but if there was evidence of it, he was happy to accept it. 3. Mr Clark agreed that he called J four times on 19 February 2014 but could not recollect why he was calling her. Sometimes she did not respond, mostly she did and sometimes straight away. Asked whether he ever thought that she may not have wanted him to continue communicating with her, he responded, "maybe I was insensitive… I was constantly looking for any sign of that and I did check in with her as best I remember quite often but I didn't pick it up. Maybe that was the case and I didn't pick it up". 4. Mr Clark denied saying something about their contact being a secret, stressing that it did not sound like something he would say. 5. Mr Clark vehemently denied asking her to add him on Facebook pointing out that he did not want any kind of exposure to some of her relatives who happen to be friends with her on Facebook. He added that he had accessed the public aspect of her Facebook as was his obligation as a Caseworker. Ground 2 - Failure to comply with a lawful and reasonable management directive 1. Ms Zeglis returned from annual leave on 5 August 2013. At that time Mr Clark was absent receiving training in the period 5 – 9 August 2013. Ms Zeglis sent Ms Preston an email on 14 August 2013 into which she copied Mr Clark. She asked Ms Preston to attend J's mental health review on 26 August 2013. He agreed that Ms Zeglis was taking control of the situation and organising for his removal from the file and handover of it. Ms Zeglis replied to his email response on 16 August acknowledging his frustration with the decision but pointing out that post 26 August – "… you will no longer be her caseworker and there will not be any future contact, face to face or by phone. … As discussed today, J has support from other workers and that for you to take up a mentoring role outside the department would not be supported…". 1. Mr Clark responded on 19 August challenging the decision to sever J's attachment to him. He argued, in cross-examination, that he was very concerned about J's wellbeing and wanted to find a constructive way of resolving the dilemma. Yet when Ms Zeglis replied later that day asking what he proposed would be the best way to cease his involvement, he had not responded because, "I didn't know the answer". The handover of J's file to Margaret Weyman occurred on or about 27 August 2013. Mr Clark, acknowledged that the file had been handed over but stated, during cross-examination, that he maintained communication with J because she had not officially been told that he was no longer her case worker. 2. Mr Clark agreed that he had a clear direction from Ms Zeglis that, after the review meeting on 27 August, he would be saying goodbye to J, he would no longer be her case worker and that there would not be any future face-to-face or phone contact with her. He stated at the investigation interview "There was no doubt in my mind that I was not going to be her caseworker after that meeting". He also agreed that Ms Zeglis had reinforced that direction on 29 August in an email. 3. Mr Clark stated that J called him from a Mall on 2 September 2013 about a TV and an X-Box. He said she knew that her allowance was from FaCS and not from Burdekin. He agreed that he had made no attempt to tell her that he was no longer her case worker because he wanted that to happen "under a structured, safe setting with Burdekin present…". He agreed that he had maintained contact with J after Ms Zeglis' instruction to him to cease contact. During that time she had asked, in addition to the TV and X-Box, for an increase in her pocket money and complained about her relationship with Lenore. 4. Mr Clark had been instructed to insist that J contact Burdekin or, after hours, the Helpline. He had also been instructed that if a face to face meeting with J and Burdekin representatives could not be arranged during the week of 4 September 2013, then he had to write to J to say goodbye. Neither instruction had ultimately been complied with. 5. Mr Clark stated that the direction had been overtaken by J's subsequent suicide attempt on 9 September 2013. She had overdosed on Panadol and was up all night talking to her friends on Facebook but refusing to divulge her address. She texted him at 6.50 am the following morning and he rang Lenore whose bedroom was across the hall from her to call an ambulance. 6. Ms Chartres tendered a screen shot she had taken of J's mobile phone attesting to the fact that there were four missed calls from Mr Clark on 19 February 2014. Ms Chartres held the view that Mr Clark's continued contact with J after he ceased to be her case worker was both "inappropriate and unprofessional", and "his conduct was detrimental to her emotional wellbeing by impacting on her ability to trust adult professionals". 7. Mr Clark agreed that the expectation of Ms Zeglis was that if J contacted him again, and it was not a 000 type emergency, some attempt at self-harm by J, he would call the Help Line. He added that such response was "in theory….". In practice, he "had to respond to the dynamics of the situation at the time". He said he discussed the situation with J and she advised him that if strangers had turned up she would have refused their help in which case the police would have to be called to forcefully take her to hospital where she would have been scheduled and that would have been highly traumatic for her. 8. The meeting with J and Burdekin to advise her he was no longer her case worker and to say goodbye never occurred. Nevertheless, he had foreshadowed to J that he would no longer be her Caseworker. The difference between his view and his Manager's view was that his Manager held the view that both matters were inseparable – the fact that he would no longer be her Caseworker and all contact would cease. His view was that the situation was not as clear as that and "to be so brutal was unnecessary and dangerous". He did not encourage J to ring him as a first resort but, by the same token, he did not say to her that she could never speak to him again. 9. In conclusion, Mr Clark stated that he had proceeded down the track of complying with the directives but subsequent events led him to feel very concerned about the consequences of going down that track and he tried to figure out for himself how best to deal with it. 10. Mr Clark stated that he was aware that a number of case workers and carers had ongoing contact with former clients where there was a secure or strong attachment and it was beneficial for the young person. 11. Mr Clark also recalled that his Manager had commended him at one time for probably saving J's life. 12. On reflection, Mr Clark appreciated that his actions as described above can be viewed as inappropriate and that he could have done things better. His main focus at the time was the fact that J had trusted him and no one else. In addition he had been frustrated by his inability to get his representations on her behalf actioned. He stated that he regretted his actions considerably. Ground 3 – Accessed records in KiDS without legitimate reason 1. Lenore died suddenly from a heart attack on 9 October 2013 and J was moved to the residence of a new carer, Lynn Briden. Mr Clark was off on sick leave for 6 weeks from 10 October 2013. He did not dispute the fact that, upon his return to work and upon discovering the change in residence, he had accessed the KiDS system to obtain her new address. During the investigation, he alleged that he already knew where she was living having noted it from one of the documents he accessed on 18 or 19 November. He pointed out that he had looked up the document to get her address in case a delay was caused trying to obtain it in an emergency. As it turned out, he said, it never became necessary apart from delivering the Christmas presents to her. During cross-examination, Mr Clark admitted that he also needed the address for when he picked J up on 10 January 2014 to take her to lunch in Manly. 2. He also maintained that he had accessed the KiDS system because he was mainly concerned about ensuring that a psychiatric safety plan or mental health safety plan had been put in place for her. Whilst it could be argued that it was none of his business, he had been worried about J and was actually still worried about her. He was pleased to note that there was a safety plan in place but was concerned that J's school friends were her safety people and would look out for her and would ring for help if she was in trouble. He pointed out that he was worried that it had not been picked up, and was a recipe for trouble, that one of her friends had attempted suicide and had been hospitalised for a number of days because of nearly succeeding. He expressed concern that such friends would encourage each other or form suicide pacts or build a culture where it is okay to suicide. In relation to the other information he had accessed, he indicated that he probably did so out of curiosity. 1. Mr Clark confirmed that case workers are entitled to take photographs of clients in their charge for the purpose of creating and maintaining a life story for them. As they grow into adulthood they can look back and recall what they were doing on the day the photograph was taken. In other words, it gives them a sense of time and context for the purposes of their life. Mr Clark thought that he had uploaded the photographs onto the KiDS system but apparently had not. They remained on his mobile telephone. He said he had blown up the photographs because she had a lovely face. He agreed that the photographs did not give any context for her life story. 2. In the record of interview, it is noted that Mr Clark did not take issue with the facts set out in the allegations, save for the fact that he denied that he wanted to be friends with J on Facebook and denied the comment about having secrets with J. His response to the allegations was that J sought his assistance at critical points in her life since he became her case worker "… she trusted me and shared things with me that she hadn't told other people and I in turn had to respond to that". 3. Ms Moffatt pointed out that none of the information about Mr Clark continuing to meet and have contact with J was recorded on J's file which was the normal practice to complete a client's history. Mr Clark agreed that he did not include on the KiDS system details of his continual contact with J, their lunches or the Christmas presents he had given her. 4. Ms Clare Donnellan, District Director, gave evidence that the continued contact by Mr Clark in circumstances where he had been asked to cease contact gave rise to fear and distress in J which she expressed to Lynn on 19 February 2014 and in her statement of 26 March 2014 when she described his behaviour as "creepy" in relation to the access, storage and enlargement of photographs that he had taken of her at various times. 5. Ms Donnellan provided the following reasons as demonstrating that he had lost all perspective with his role as case worker and why she no longer had any confidence in him continuing in that role: 1. He was prepared to disregard FaCS directions with respect to his contact with J; 2. He seemed to be completely unaware of the damage his contact with J was causing; 3. He had no apparent awareness of his undermining of J's relationship with her carers; 4. He was prepared to access confidential material to illegitimately obtain information as to J's whereabouts; 5. He involved himself improperly in J's life after he had ceased to be her case worker; and 6. He carried out the above activities secretively without informing his management team or the case workers who were responsible for carrying out the statutory functions of FaCS at the time. Submissions The submissions made by Mr Cosgrove on behalf of Mr Clark may be summarised as follows: 1. Mr Clark had acknowledged his wrongdoing, was fully co-operative with the disciplinary process and there was no contention in relation to the finding of misconduct against him. What was in contention was the sanction imposed by FaCS – the ultimate sanction of dismissal. Mr Clark held the view that a lesser penalty should have been applied in the circumstances. 2. The Commission is being asked to make a positive finding on whether the termination was harsh, unjust or unreasonable or a combination thereof: Bankstown City Council and Peter John Paris [1999] NSWIRComm 368 (23 August 1999): These proceedings have not been about whether misbehaviour in the workplace is acceptable but rather whether the treatment of an employee, in a milieu where such behaviour seems to be rather the norm than the exception was harsh, unreasonable or unjust. 1. None of the FaCS witnesses could provide a definitive response as to whether the provision of personal telephone numbers or gifts to clients were contained in any of its policies. 2. Mr Clark acknowledged that his case management style was, at times, over involved but pointed out that it could have been remedied by increased supervision and training. It was pointed out that FaCS was responsible for the identification and correction of any shortcomings within the management and performance of case management. Instead, it chose to disregard his experience and dedication as well as the time it had invested in him. 3. Mr Clark believed that reinstatement would not be impracticable: Perkins v Grace Worldwide (Aust) Pty Ltd [1997] IRCA 15 (7 February 1997). He believes that he can continue to perform his duties in a satisfactory manner and in the best interests of FaCS as demonstrated over the previous eight years of this employment: 1. There was no evidence of any difficulty between the parties other than the allegations that led to his termination; 2. There was no evidence of any difficulties between Mr Clark and his previous Manager and Supervisors; 3. There was no evidence of any complaints regarding his work performance. In fact the evidence revealed that he was such a valued and respected employee that he was allowed to act up in higher grade managerial positions; 4. The evidence also revealed that FaCS acknowledged Mr Clark's hard work and exceptional casework provided to clients, particularly J; and 5. There was no evidence of any findings of criminal activity arising out of the investigation into his actions. 1. Until the issue with J, Mr Clark had a totally unblemished conduct and performance record. 2. Mr Clark accepted that he made an error of judgment in the course of managing J and that his decision to continue contact with J was ill-considered but denied that his conduct was designed to deliberately undermine the authority or harm the integrity of FaCS. He explained that his conduct sprang from his genuine concerns for the safety and wellbeing of J and from a genuinely held belief, given his training and expertise, that his intervention was necessary in circumstances that required immediate action. 3. The motive for providing his personal telephone number to J was for the sole purpose of her contacting him in an emergency given that there was no other line of contact with other staff and such contact, as was supported by the evidence, was only to occur in the course of employment. The evidence also indicated that contact was only made when the client was displaying symptoms of self-harm. It was pointed out that Mr Clark had initially complied with the direction to cease any contact but had no choice but to reconnect after she reached out to him following the first incident of self-harm. Mr Clark's actions, it was submitted, should be viewed as reasonable given that he had been her case worker since April 2012. The degree of concern of FaCS was questioned bearing in mind that those concerns were not raised with him until May 2013 and he was not formally advised of the removal of the case from him until August 2013. As the relocation did not occur immediately following the meeting in May 2013, then it can be surmised that the telephone contact between him and J carried minimal risks to FaCS. 4. Mr Clark relied on the decision in Australian Services Union of NSW (o/b Valentina Angelovska) and St George Youth Services Inc. [2010] NSWIRComm 1051 where it was determined that the expression "misconduct" could not be referred to as conduct so serious that it was a dereliction or neglect of duty. In Mr Clark's case, he had an unblemished record over 9 years of employment. He was not provided with procedural fairness in relation to the additional allegations made against him. There was no sinister or evil motive behind not wanting to close communications with J. If FaCS was so concerned about his contact with J, then action should have been taken to cease the contact rather than send him mixed messages. Whilst Mr Clark conceded misconduct, he did not concede that his conduct can be construed as being so serious as to constitute dereliction of duty or negligence. His loss of position will have significant personal and professional implications for him. 5. It was submitted that Mr Clark was fully transparent and accountable in all his dealings with J, he did not allow the intervention to impact on his own case management responsibilities, and he did not cause harm or embarrassment to FaCS. 6. In conclusion, Mr Clark was seeking re-instatement to his former position or, if that is not practical, that consideration be given to his re-employment into another position. The Respondent's submissions may be summarised as follows: 1. Mr Clark, as a case worker, was required to exercise the parental responsibility of the Minister as vested in FaCS. These young people have come to the attention of the Minister because they have "been let down by their family, let down by the community, to a certain extent" and the Minister has to step in and take control of these young people's lives. The boundaries are therefore important and need to be adhered to because they are in place to prevent further grief to these young people. Mr Bennett stressed that "there is no more important area that maintaining public confidence in the treatment of young people who, for reasons totally beyond their control, find themselves in the circumstances that young people J did". 2. Whilst the outcome of Mr Clark's disregard of the boundaries in the case of J was not tragic, it certainly caused her fear and distress. 3. Mr Clark was in a power relationship with J, a minor who has been psychologically damaged by the circumstances in her life. It was considered sheer arrogance on the part of Mr Clark to respond that a 15 year old child in a power relationship with him should have told him, "Look you are upsetting me. I don't want to see you again". His role was to assist J to attach properly to Burdekin, to cement her relationship with her carer – not to impose himself in that relationship and form/maintain an attachment to the child. 4. FaCS has systems in place for case workers who have emotional concerns or have formed improper attachments with clients. Those systems were rejected by Mr Clark. 5. There was a clear direction given to him to cease contact with J. One minute it is admitted and the next he maintains that it was not clearly put to him. 6. Mr Cosgrove submitted that his actions had been open and transparent. It was argued that Mr Clark concealed the fact that he gave J his mobile telephone number throughout the period November 2012 till when it was discovered following the incident in May 2013. Therefore, not only was there a breach of policy but there was a concealment of that breach for about 7 months. 7. Mr Clark admitted that he had no entitlement to access information on KiDS but did do so to obtain J's home address and that led to further difficulties. In addition, he took photographs of J, did not place the photographs into the KiDS system, provided no explanation for keeping the photographs for some months and then used them in December 2014 to provide blow up copies to her as part of a Christmas present when he was no longer her case worker. He purchased a cookbook for J from Ms Weyman who was in charge of the Book Club and did not disclose to her, as J's case worker, that it was meant for J. Mr Clark concealed the fact that he had given J Christmas presents. Mr Douglass gave evidence that case workers never bought personal private presents for their clients. At one stage, they bought Christmas presents for clients but it was always out of FaCS budget. 8. Mr Clark raised the issue of the additional allegations. The Respondent did not pursue the Facebook page issue in the course of these proceedings. However, the secrecy issue was being pursued. 9. Mr Clark sought to justify his failure to comply with practices that he knew he was breaching by alleging a breakdown of the relationship between J and Lenore in about February 2013. That submission was completely contrary to the documentation that he had prepared for the Children's Court. In any event, the placement of J in with Burdekin and in Lenore's care did not occur until about 20 February 2013. 10. Mr Bennett pointed out that, despite all Mr Clark's posturing that he was the only person who can save J, the only two incidences that occurred in her life, occurred while he was her case worker. It was also pointed out that since levering him out of the way, there have not been any further problems with J. 11. The incident in May 2013 was no doubt, a cry for attention by J and was not unexpected given it was Mother's Day and her mother had passed away only a couple of years earlier. Mr Clark had elevated the incident to a suicide attempt despite the fact that Lenore had checked in on her at about 11 pm and decided she was alright and Mr Clark did not turn up until about seven hours' later to take her to hospital to have her checked out. Code of Ethical Conduct 1. The Department's Code of Conduct, dated 22 October 2013, relevantly provides: Abiding by the Code is part of the conditions of employment in FACS. A breach of the Code may lead to remedial or disciplinary action ranging from counselling to dismissal. ….. Staff are expected to act appropriately at all times. This means that they must: …. • Work co-operatively as a member of a team • …. • Comply with all lawful and reasonable management directions • Be open and honest when confronted by ethical dilemmas and seek to resolve these by consulting managers, policies or government directions • …. • Not misuse official information or resources 1. In relation to interacting with clients, colleagues and the community, the Code of Conduct relevantly provides: It is recognised that some staff will have personal relationships with people who are FACS clients. This Code does not prevent staff maintaining these relationships. Staff must manage these relationships so that they are not in conflict with their personal responsibilities. Staff must: • …. • Manage work and personal relationships so that professional boundaries are maintained • …. Staff must not: • Develop or pursue relationships which extend beyond professional boundaries with clients unless the staff member has a legitimate reason for the relationship such as the client being a family member, an existing close personal acquaintance and the relationship was not established because of, or through their work with FACS • …. • Take photos or films of clients or the children of clients unless authorised to do so for approved work purposes. Off Duty Caseworkers Policy Off Duty Caseworker Action Taken "Out of Hours" The Department recognises that in some circumstances, action by "off duty" caseworkers may be considered warranted to prevent a risk of serious and immediate harm to a child or young person…. Report to Helpline Off duty caseworkers should make all reasonable attempts to contact the Helpline before taking any action. Off duty caseworkers should discuss proposed action with the Helpline staff if possible and be guided by the advice and supervision provided. If contact is not made before taking action, caseworkers must report the action taken to the Helpline at the earliest opportunity, and, in any case, not later than 24 hours after action is taken. Consideration 1. Mr Clark did not deny the allegations against him. His challenge is to the severity of the penalty imposed – the ultimate sanction of dismissal which included a notification to the NSW Ombudsman and the Office of the Children's Guardian. 2. It is important to consider the merits of the claim using, as a focal point, the role of a case worker in a child's life and the duties attached to such a position. 3. Ms Clare Donnellan, employed as District Director with FaCS provided a statement in the proceedings in which she explained the nature of the power relationship that exists between a case worker and a client. Her views were echoed by Ms Patricia Moffatt, who commenced employment with FaCS as a Child Protection Case Worker and worked her way up to Director, Community Services: 19. FaCS is empowered by statute to exercise an extraordinary power – in circumstances it thinks appropriate it may take children out of their home and place them elsewhere. For the community to have confidence in FaCS, the power must be exercised openly, respectfully, transparently and properly. 20. Case workers are the key to the exercise of this power. It is invariably a case worker who investigates cases and with their supervising manager, makes recommendations as to the necessary action required and ultimately the approach adopted by the department to the permanent placement of an affected child or young person. Simply put, a case worker develops a case plan whereby a carer takes on the role of caring for the child/young person. It is not the case worker's role to become involved in the day-to-day control and supervision of a client. It is the case worker's role to work with carers to ensure that the child/young person is able to form a bond with and/or relate to their carers and other staff involved in the matter. It is in the interest of a young person/child that they understand that the carer is the person who has day-to-day control of their living needs – not the caseworker. 21. While a case worker can form a trusting relationship with a child/young person, there must be boundaries. Those boundaries are to protect the child from further grief and loss, including the practical running of the department which requires case workers are reallocated to other work. To ensure this happens, FaCS has a Code of Ethical Conduct which provides that: Staff must not develop or pursue relationships which extend beyond professional boundaries with clients unless the staff member has a legitimate reason for the relationship such as the client being a family member, an existing close personal acquaintance and the relationship was not established because of, or through their work with FaCS. 22. This simple proscription on the conduct of case workers seeks to prevent them from improperly exercising their power that exists vis-à-vis the client … The power relationship that I refer to is the position that a client is in knowing that a case worker can exercise power over that client with respect to their allowances, day-to-day needs, medical appointments and placements (to name but some of the powers) – effectively their life. 1. Mr Clark did not have a legitimate reason for the relationship he developed with J apart from the power relationship that existed between them as case worker and client. He commenced working with her and her siblings in April 2012. He met J again when she returned to Sydney on 5 November 2012 following rejection by her uncle in Queensland. 2. Mr Clark provided J with his mobile telephone number in about November 2012 when she was still at the refuge at about the same time when she disclosed self-harm to him. Mr Clark did not disclose to his Manager that he had done so. Mr Clark could have advised her to call Helpline. He did not. He gave evidence that J told him that she would not call Helpline because she did not want to talk to strangers. I do not accept that, with the proper encouragement from him she would not have turned to Helpline once again in an emergency. At that point J was 14 years old. Mr Clark admitted that she had called Helpline in an emergency when she was 12 years old, before he became her case worker. 3. Mr Clark talked about the "acute mistrust" J felt for Lenore following the breakdown in their relationship in February 2013. Yet J only moved in with Lenore in February 2013. In addition, during cross-examination, Mr Clark admitted that his statement conflicted with the relationship he described in the Care Plan dated 23 April 2013: Amended Care Plan Permanency Plan Development of case plan process of participation The views of the child [J] on this and previous occasions J stated that her Burdekin live-in carer, Lenore, was very nice and she liked living in Manly, but did not yet know many people there and was feeling a bit isolated, lonely and missing her friends. 1. Mr Clark also admitted that his statement conflicted with the Amended Care Plan – Permanency Plan that he had prepared for the Children's Court on 24 April 2013: Section 3: Needs and Issues for Care Plan How does the proposed placement relate to permanency planning for the child or young person? J's placement in this long term young people's residential environment is providing her with a warm caring home with a carer who lives with her, and backed by professional case workers. This in turn will give her the stability, permanency and safety that will enable her to settle, build a new life and focus on enjoying her adolescence. J can leave behind the disruption, chaos and dangers of life with her father and focus on her education, and on good enduring friendships within a healthy community while she prepares for adulthood. 1. His statement also does not sit well with the fact that he said he bought J a cooking book for Christmas 2013 as it was her way of communicating with Lenore, who had passed away a couple of months earlier. 2. Mr Clark said J disclosed to him that she had made at least 3 or 4 attempts at suicide during the preceding fortnight – but not on that night. The disclosure was during one of their after-hours telephone discussions. That disclosure had already been made to her Burdekin Case Manager who had advised the carer. Appropriate advice had been provided to J. It was considered that it was not unusual for J to seek help or support considering it was Mother's Day and her mother had passed away not long before. Mr Clark should have been encouraging J to talk to her carer. He should not have been talking to her at that time of night. Mr Clark did not ring Lenore immediately if he was that worried about J. Mr Clark did not ring Helpline for advice and assistance. He rang the Mental Health Team at Manly Hospital at 1 am to for advice. He made an appointment to take J to the Hospital and then rang Lenore to advise her of that fact. He arrived at 6.30 am to take J to the hospital by himself. He ensured that he was included in the Safety Plan that was put in place for her. I agree that Mr Clark's actions intruded into the relationship between J and her carer and Burdekin case worker, were over the top and, possibly, melodramatic. 3. I am satisfied that FaCS did all that it could to counsel and direct Mr Clark to cease his contact with J. The evidence indicates that Mr Clark had absolutely no intention of ceasing that contact and struggled to find ways and means of maintaining some contact with her. He took her out for lunch, he bought her Christmas presents, he arranged to increase her weekly allowance substantially in the absence of his Manager, and he raised her expectations about getting her own TV and Xbox 360. He bought her a pair of inappropriate boots but did not disclose to her that the money came from her FaCS clothing allowance which would have left her feeling beholding to him. He texted the young teenage girl weird messages and confided in a troubled client about his domestic situation. If J's interest came first, he would have encouraged the development of a relationship with her carer and case worker and allowed them to purchase the boots for her. He would not have put her case worker in an awkward position of fulfilling the expectation raised regarding a TV and X-Box. 4. J provided a statement to the investigator in which she acknowledged that she was aware that it would be used to make further inquiries about matters she was raising. 5. J said Mr Clark never told her in August 2013 that he was no longer her caseworker nor did he discuss the subject with her. That statement is contrary to Mr Clark's evidence. 6. J described the blown up photographs of her as "creepy". Her carer described her reaction as "unnerved and surprised" and she had become "quiet and withdrawn". 7. J said in her statement to the Investigator that Mr Clark kept texting and calling her and, in fact, on 19 February 2014, he called her 4 times within 1.5 hours while she was with her friends in Hornsby. He had also sent her text messages – she described them as random and did not make sense to her "The trees are very green here in Macquarie Park". She recalled that on a previous occasion he sent her a text message which read "I'm sitting at Manly Beach looking at the beautiful sunset". 8. J said that Mr Clark asked her to meet again but she did not want to. She had reached a point where she felt that she had to talk to someone about it. She blocked his number. She told Lynn. She stated in her statement: I told Lyn it was freaking me out. I was really concerned and frightened. I remember him saying "It is our secret". This was regarding him seeing me. It was random and odd for him to say it was our secret. I don't remember when he said that to me. He also said I could add him to Facebook, but I never did. I was shocked at how much he had spent on presents, including the Christmas presents and the Jeffrey Campbell shoes which were genuine. They were a late birthday present. At some stage last year I spoke to Paul and asked if I could get some more money for coffee or for breakfast as I did not have time to get myself breakfast before leaving for school. I get $30.00 per week and I wanted a few dollars more. I never knew he asked for $70.00. I wouldn't know what to do with that amount of money. I don't need that much. The level of attention she was getting from Mr Clark, it would appear was too much for a vulnerable child to begin to know how to deal with. It was suffocating. 1. After Mr Clark was removed as her case worker, * he sent at least one text message to J; * he accessed KiDS records regarding J and obtained her new home address; * he created a document and attached psych consult records to the KiDS file with respect to J; * At Christmas 2013, he left a hamper of individually wrapped presents for J outside her new home. Did not claim reimbursement for the gifts and did not record them on KiDS and therefore must have been aware that it was inappropriate; * On or about 10 January 2014, he took J to a Manly beachside restaurant for lunch, during which he confided with her about his personal circumstances and afterwards sat near the beach looking down at the beach with J; * On 19 February 2014 sent a number of texts to J; and * Generally refused to cease contact after transfer of the file. He was unable to detach himself from J. 1. His actions were in direct violation of the directions issued to him. 2. His behaviour was not only inappropriate but was in breach of boundaries that ought to exist between case worker and their clients. 3. I can understand the sympathy he felt for J. I can also understand that the level of concern he had for J could have blurred the fine line between being her case worker and maintaining a professional boundary with her. What I find difficult to accept is his inability to recognise his breaches which were spelt out during the investigation period and during the arbitration proceedings. The following exchange during the cross-examination of Mr Clark is very telling: Bennett: And on that day [23 July 2013] you purchased some shoes for her, didn't you? Clark: Yeah. I don't know what kind of shoes they were, but I did purchase some shoes for her. Q. And this was of course at the time when the file had been transferred? A. No it wasn't. Q. It was in the process of being transferred, where you had been told to transfer it. You, as a caseworker, acting properly, ought have said to J, … if she was after some shoes, that you'd have to speak to Burdekin and get back to her, that's the case, isn't it? A. No. Q. Or you should have said well, you're with Burdekin now, they're your permanent carers, ask them and we'll deal with any recommendation they make. That's what you should've done, wasn't it? A. No. Q. You could have organised and you could have spoken to the carers at Burdekin to organise the purchase of these shoes for J, couldn't you? A. Well, I could've done lots of different things but that's what we actually did and … Q. Yes. A. … that was that moment. Q. And of course if you would've done that … A. I also bought her some gloves. Q. If you would have said to her, "No, look, J, I'll speak to Burdekin and they can organise the purchase of those shoes," that would've enabled the building of a relationship. It's these little things that enable the building of a relationship and that relationship could have been built between J and Lenore, for instances, if Lenore had gone out with her to purchase those shoes, a young girl excited about getting some shoes? A. Well, there's nothing to stop that now happening and most of the time J – I didn't see a great deal of J. Most of the time … Q. Sir, it's not about nothing is stopping that happening. What could have… A. I'm sorry, I … Q. …. Stopped it happening was your behaviour. A. No, I don't accept that. ….. Q. Your behaviour on the day removed the opportunity that presented itself of enabling the carer to build a strong relationship with J to enable the sense of permanency to continue. You knew at the time you were to be removed from the relationship and yet you were butting in, so to speak, and imposing yourself upon what should have been a relationship between the carer and J? A. That's nonsense and completely absurd. Q. And you denied Lenore the opportunity by purchasing the shoes yourself to build a bond with J? A. You've just said that. It's nonsense. Q. And in fact you built your bond with J, didn't you, by doing that? A. I had built a bond with J months before that. Q. Yes but, see, this was another little step to cement it a bit further, wasn't it? …. Q. You can either agree with it or deny it? A. I had built a bond with J months before that. This was a simple, spontaneous moment which didn't threaten anybody else's relationship with J. 1. I also find it difficult to comprehend that he cannot accept blame or express remorse, particularly after reading J's statement which spelt out how his over attentiveness made her feel. 2. The failure to recognise his breaches and his lack of acceptance of blame or expression of remorse can only mean that such behaviour is likely to be repeated in the future. 3. It remains for the Commission to determine whether the dismissal was harsh, unreasonable or unjust. In Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 at 465, McHugh and Gummow JJ stated: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 1. The Applicant accepted from the outset that he was guilty of the misconduct on which the Respondent acted and, on that basis, the dismissal cannot be held to be unjust. 2. The dismissal was not unreasonable given the agreed factual matrix detailed above. 3. The dismissal was not harsh as it was not disproportionate to the gravity of the misconduct. I accept that his conduct and attitude undermined J's sense of safety by undermining her relationships with Burdekin staff and acting as a friend rather than a case worker. I accept the Psychologist's view of Mr Clark that instilling in J the belief that he was the only person capable of saving her from self-harm and that he was the only one with her best interests at heart was very harmful to her well-being. I also accept that he intended to control J by undermining her other relationships in order to isolate her and make her believe that she needed his control. 4. It is noted that Mr Clark was dismissed on 4 July 2014 and even though the reason for dismissal was misconduct, he was paid an additional two weeks' pay at the time of termination. Mr Clark obtained alternative employment within 7 weeks of his termination. 5. The Applicant has not established that the dismissal was harsh, unreasonable or unjust. Decision 1. Having regard to the provisions of Section 84 of the Industrial Relations Act 1996, I do not regard that the dismissal of Mr Paul Clark was harsh, unreasonable or unjust. Matter No 51580 of 2016 (IRC 576 of 2014) is hereby dismissed. I Tabbaa AM 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 May 2016