Industrial Relations Commission New South Wales Medium Neutral Citation: Paulson v Industrial Relations Secretary (Department of Justice) [2017] NSWIRComm 1037 Hearing dates: 27, 28 & 29 March 2017, written submissions on 4 May 2017 Decision date: 07 July 2017 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The Department is ordered to pay to the applicant a sum equivalent to 13 weeks' pay calculated at the rate of pay applicable to the position occupied by applicant immediately before the termination of his employment on 20 October 2014. Catchwords: UNFAIR DISMISSAL – Sheriff's Officer – 42 allegations of misconduct – investigation report – 34 allegations substantiated – decision to terminate applicant's employment after giving opportunity to resign – majority of substantiated allegations not proven on balance of probabilities – proven allegations not sufficiently serious to justify dismissal – dismissal harsh – reinstatement and re-employment impracticable – compensation ordered Legislation Cited: Industrial Relations Act 1996 Government Sector Employment Act 2013 Court Security Act 2005 Civil and Administrative Tribunal Act 2013 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 Pastrycooks, Biscuit Makers & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Franklins Ltd v Webb (1997) 72 IR 257 Perfection Dairies Pty Ltd v Finn (2006) 151 IR 197 Category: Principal judgment Parties: Craig Anthony Paulson (Applicant) Industrial Relations Secretary (Department of Justice) (Respondent) Representation: Counsel: Mr S Ryan (Applicant) Mr S Benson (Respondent) Solicitors: Mr S Gray, Cardillo Gray Partners (Applicant) Ms L Armstrong, Crown Solicitor (Respondent) File Number(s): 2016/00049498 DECISION 1. The matter before the Commission is an unfair dismissal application brought pursuant to section 84 of the Industrial Relations Act 1996 ("the Act") by Craig Anthony Paulson. Prior to his dismissal, the applicant was employed as a Sheriff's Officer in the Department of Justice ("the Department"). 2. By letter dated 31 July 2014, Michael Talbot, Assistant Director General, Courts and Tribunal Services, of the Department, wrote to the applicant and referred to an Investigation Report dated 18 July 2014 prepared by Nicole Nix, Manager Investigations of the Department ("the Report"). Ms Nix had been appointed by Mr Talbot on 18 March 2014 to undertake an investigation and prepare an investigation report in relation to allegations of misconduct against the applicant. The allegations of misconduct were numbered 1 to 25, but several of those comprised multiple instances of the misconduct alleged. When broken down, there was something in the order of 42 alleged instances of misconduct. 3. In his letter of 31 July 2014, Mr Talbot advised the applicant that he had considered the Report and that his findings were that there was sufficient evidence to substantiate 34 of the misconduct allegations against the applicant. The remainder of the allegations were unsubstantiated and Mr Talbot decided to dismiss them. The applicant was advised that Mr Talbot was considering taking action under subsection 69(4) of the Government Sector Employment Act 2013, with the severest action that he would conceivably take being to terminate the employment of the applicant after giving him an opportunity to resign. The applicant was provided with a full copy of the Report which, with annexures ran to 429 pages, and was given 14 days to make a submission and to provide any additional information which he considered should be taken into account in relation to the action being considered by Mr Talbot before a final decision was made. 4. On 1 September 2014, the applicant met with Mr Talbot and later provided a lengthy and detailed written response to the misconduct allegations. Following this, on 29 September 2014, Mr Talbot again wrote to the applicant to advise him of the decision that Mr Talbot had made, being to terminate his employment after giving him an opportunity to resign. The applicant was directed to resign within seven days, failing which his employment would be terminated. 5. The applicant did not resign and, as a consequence, Mr Talbot wrote to the applicant on 20 October 2014 and advised him that his employment had been terminated with effect from the date of the letter. 6. The applicant's unfair dismissal application was filed in the Industrial Registry on 7 November 2014. Since that time there has been a number of conciliation conferences convened before Commissioner Stanton, however the matter did not settle. Some of the delay in having the matter heard was attributable to the applicant initiating and pursuing complaints against the Department to the Anti-Discrimination Board of New South Wales ("ADB") and then to the NSW Civil and Administrative Tribunal ("NCAT"). The applicant's unfair dismissal application was ultimately heard before me in Newcastle on 27, 28 and 29 March 2017. Background 1. The applicant deposed that he commenced employment in or around 2000 with the Attorney General's Department (now Department of Justice) as an Aboriginal Client Service Specialist with the Lismore Court. In or around 2006, the applicant was seconded to the Crime Prevention Division for a period of 12 weeks. Following this, the applicant took two years off work on leave without pay. 2. On 22 September 2008, the applicant returned to work as a Trainee Sheriff's Officer with the Department of Justice, and was based at Taree. In 2010 the applicant became a Sheriff's Officer, having successfully completed a probationary period and trainee program. The applicant commenced working at the Broadmeadow Children's Court in or around 2010. 3. According to the applicant, he reported directly to the Chief Inspector, Bayden Jeanes, with whom he had a number of issues over matters such as Mr Jeanes' refusal to approve the applicant's request for secondary employment, leave issues and, according to the applicant, being spoken down to, bullied and unfairly targeted by Mr Jeanes on a number of occasions. 4. On 23 August 2013, Cindy Cannell, Assistant Sheriff, Regional Manager, Northern, wrote to the applicant and identified three areas of concern where his performance had continued to be unsatisfactory, namely: * Failure to complete security duties competently. * Not maintaining accurate documentation/records. * Not abiding by the Code of Conduct and Dignity and Respect Policy. In this letter, Ms Cannell advised the applicant, "I am considering referring these matters to the Sheriff for the purpose of implementing remedial action, but prior to doing so, wish to provide you with an opportunity to improve your performance in an attempt to achieve a satisfactory level of conduct and performance". 1. On 28 November 2013, following an incident at the Toronto Court Complex on 13 November, which led to the applicant being the subject of an allegation of a significant security breach and the revocation of the applicant's appointment as a security officer pursuant to the Court Security Act 2005, Ms Cannell sent a memo to Tracey Hall, Sheriff of NSW, requesting a HR Review of performance issues pertaining to the applicant. 2. On 18 March 2014, Mr Talbot instructed Ms Nix to investigate and prepare an investigation report into allegations of misconduct against the applicant. Those allegations, which were detailed in a letter dated 9 May 2014 from Ms Nix to the applicant, were as follows (as written by Ms Nix): 1. Breaches of security at Newcastle Court Complex, Toronto Court Complex and Broadmeadow Children's Court: 1a. On 11 December 2013, Mr Paulson had knowledge of, and / or placed a prohibited item (being a razor blade) in the male amenities located on the ground floor of Newcastle Court, located by BMS Private Security Officer, Mr Ewan Lints at approximately 4.20pm. 1b. On 12 December 2013, without consent or authority, you approached Sheriff's Officer Jacqueline Gladwin and alleged that she had permitted entry of the prohibited item (being a razor blade) into Newcastle Court Complex on 11 December 2013. You then proceeded to question Ms Gladwin as to why she had been permitted to work at the scanners and continue to carry appointments. 1c. At approximately 11.00am on 13 November 2013, you compromised the security of Toronto Court Complex by leaving BMS Private Security Officer, Mr Ewan Lints on his own at the scanners whilst engaging in discussions with an unknown Aboriginal person/s adjacent to the Court Registry. 1d. Having been advised by BMS Private Security Officer, Mr Ewan Lints of an unknown male person attempting to gain entry to Toronto Court Complex with a prohibited item (being a razor blade) concealed in his wallet, you knowingly permitted the stated unknown male person with the prohibited item (being a razor blade) on his person, entry to Toronto Local Court on 13 November 2013. 1e. In permitting the unknown male person in possession of the prohibited (being a razor blade) entry to Toronto Local Court on 13 November 2013, you made a statement, with words to the effect of, "Don't worry about it just make sure your wallet stays in your pocket". 1f. On 24 July 2013, you failed to take appropriate measures to adequately secure the Registry of Broadmeadow Children's Court by deliberately implementing measures to prevent the locking mechanisms of the side exit door of the Registry from engaging whilst accompanying the Magistrate depart the premise. 1g. On 15 April 2013, you failed to take appropriate measures to adequately secure Broadmeadow Children's Court overnight by not engaging locking mechanisms of the front entrance doors. 1h. On 27 September 2012, Mr Paulson failed to secure Broadmeadow Children's Court overnight in that he did not engage locking mechanisms for the front entrance doors. 1i. In the period including, but not limited to, February 2009 and September 2013, you have on occasions, failed to appropriately and adequately secure his appointments. 2. Your actions, conduct and behaviour in failing to secure Newcastle Court Complex, Toronto Court Complex and Broadmeadow Children's Court had the potential to threaten and jeopardise the health, safety and welfare of your colleagues, judicial officers and members of the general public by potentially exposing them to unnecessary risk and harm. 3. Investigate and determine whether in the period since at least 12 August 2013, you have used inappropriate and offensive language in the workplace, including but, not limited to, the following incidents: 3a During a conversation with Court Officer Ms Emma Esler on 26 November 2013, you made comments concerning Mr Jeanes to the effect of, "he is fucking setting me up". 3b On, or about 14 November 2013, you were overhead by Acting Sergeant Leah Morrow to have loudly made a comment with words to the effect of, "If Officer Hendrickse has any issues considering the grievance, we can take it out the front", during a telephone conversation in the Registry of Toronto Court Complex. 3c During the course of a telephone conversation at Toronto Court Complex on, or about 14 November 2013, Mr Paulson was overheard by Acting Sergeant Leah Morrow to have loudly made a comment with words to the effect of, "It is the fucking white man's way or no way at all and I've had enough". 3d On, or about 30 September 2013, you approached Sheriff's Officer Mr Steven Andrews and made a statement with words to the effect of, "Andrews, you nothing but a dog". 3e On 22 September 2013, during a conversation with Sheriff's Officer Mr Steven Andrews at Broadmeadow Children's Court scanners, you made derogative and offensive comments about unknown staff and management of the Department, including reference to an officer using a word to the effect, "cunt". 3f Whilst conversing with Sheriff's Officer Mr Steven Andrews at the Broadmeadow Children's Court scanners on 22 August 2013, you made a comment using words to the effect of, "watch it Stevo, you don't know what's going on and if I am asked, I will flatly deny it. They're going down, especially that cunt out there. There's going to be an investigation from QBE". 3g Following the incident with Sheriff's Officer Mr Craig Hendrickse at Broadmeadow Children's Court on, or about 12 August 2013, you made a comment with words to the effect of, "you fucking left me there alone, what was I supposed to do, it's a fucking OHS issue". 4. During the period since at least 2 April 2009, you have demonstrated a continual pattern of inappropriate conduct and behaviour, including but, not limited to, the following incidents: 4a You continually engaged in a rude, disrespectful, aggressive and abrupt manner when conversing with your supervisor, Officer in Charge Mr Bayden Jeanes, with particular reference to discussions conducted on 18 December 2013, 17 October 2013, 14 October 2013 and 6 February 2012 respectively. 4b In entering a commencement on duty time of 8.30am on 25 November 2013, 26 November 2013 and 27 November 2013 respectively on your flex sheet, you disregarded and refused to adhere to the lawful direction of Officer in Charge Mr Bayden Jeanes to commence work at 9.00am. 4c On, or about 12 August 2013, whilst questioning a number of youths concerning graffiti identified during a routine inspection of the male amenities of Broadmeadow Children's Court, you failed, on at least three separate occasions, to respond to the radio calls of Sheriff's Officer Mr Craig Hendrickse. 4d You engaged in a rude, disrespectful, aggressive and abrupt manner during discussions with Regional Manager Ms Cindy Cannell, with particular reference to a meeting of 6 May 2013, in which he abruptly terminated a telephone conversation. 4e On several occasions during the period 2 April 2009 and 15 May 2009, you engaged in discussions with his supervisor, Mr Tony Fielder, Officer in Charge, Broadmeadow Sheriff's Office in an angry, abrupt and disrespectful manner. 5. You failed to maintain accurate flex sheet records concerning your time and attendance patterns during the period including, but not limited to, August 2013 to November 2013. 6. During the period including, but not limited to, August 2013 to November 2013, you failed to complete and submit accurate work diary and motor vehicle running records. 7. Your actions, conduct and behaviour are contrary to the fundamental principles and objectives of the performance of his role as a Sheriff's Officer under relevant provisions of the Courts Security Act 2005 and Sheriff's Act 2005. 8. Your actions and behaviour are contrary to the Department's Code of Conduct and relevant policies / legislation. In addition to the above allegations, I will also be asking you to respond to questions regarding the following: 9. You made an application to engage in secondary employment with Corrective Services on or about April 2013, management declined your application. You engaged in said secondary employment without approval on the following dates: 24-26 April 2013, 1 May 2013, 3-5 May 2013 and 11-12 May 2013. 10. You have failed to correctly maintain ESS records on 25 April 2013, 4-5 May 2013, 11-12 May 2013 as you were absent from work, and no records have been entered into ESS. 11. On 5 November 2013, Ms Morrow had a conversation with you regarding a notice of non-levy (2013/0098718) that had been completed by you. The copy to be posted to the creditor advised them that the judgement debtor was "Doing time". Ms Morrow advised this was not appropriate and you refused to change your notation. 12. On 12 November 2013, you were observed with Mr Geoff Neighbour, Sheriff's Officer at Ms Morrow's desk accessing her computer without authority. 13. Sometime after 13 November 2013 you inappropriately approached Mr Lints and demanded he tell you what he said in his statement regarding the sharp instrument that you permitted into the Toronto Court Complex and said words to the effect of, "Oh well, you'll get in trouble too because you were the one that let it go through". 14. On numerous occasions whilst you were working at Broadmeadow Children's Court your children attended court premises from noon until 3.30pm. You would leave your post repeatedly to check on your children. 15. On numerous occasions, you asked the Registrars of Broadmeadow Children's Court if you could leave early and asked them to secure the building on your behalf. 16. When Mr Kildey was acting in the position of Officer in Charge Newcastle Sheriff's office, sometime during 2013, he attended Broadmeadow Children's Court to discuss your leave; you said words to the effect of, "it's fucking bullshit, I've got medical certificates for all of it. This is fucking bullshit". You then proceeded to walk away and provided no explanation to Mr Kildey. 17. On 18 December 2013, you spoke in an aggressive and inappropriate manner to Mr Anthony Kildey, Sheriff's Officer Newcastle Sheriff's Office, saying words to the effect of, "Don't talk to me. You're a big disappointment to me". 18. On 13 January 2014, you attended Toronto Sheriff's Office and during a conversation with Ms Morrow, you made a comment using words to the effect of, "It is none of your business what I do. You go on with what you're doing. What I am doing is none of your business lady" and as you exited the building you referred to Ms Morrow as, "Nothing but a fucking clown". 19. On or about 6 February 2014, during a conversation with Mr Kildey regarding your jury room and building keys you spoke in a loud and inappropriate manner. 20. Sometime on or about February 2014, whilst empanelling a Jury with Ms Esler, you called her over to where you were sitting and said words to the effect of, "It's too fucking hot in here, I can't do this, I'm out", and you got up and left the room. You made this comment in front of approximately 40 potential Jurors. 21. Sometime after 18 March 2014, you breeched confidentiality of the misconduct process by approaching Ms Esler and asking her about her involvement in your current misconduct matter. 22. On 3 April 2014, during a conversation with Ms Kirsten Barry, Second in Charge, Newcastle Sheriff's Office, about an application to withdraw a Jury, you spoke in an inappropriate manner saying words to the effect of, "I don't know what you're talking about. I won't be blamed for discharging the Jury". 23. On 4 April 2014, your behaviour towards Ms Barry was aggressive and inappropriate when she asked you to refax a lunch order for Jury members. You spoke over Ms Barry and made comment using words to the effect of, "I'm not fucking doing it. I've already done it", "If they don't get it, it's not my problem, it's a fax problem. No one showed me how to do it". You waved and violently pointed at a fax confirmation saying words to the effect of, "Look! I've done it. I've done it." 24. On 16 April 2014, Ms Barry bought to your attention that you failed to maintain correct flex sheet records as follows:• • 10 – 25 March 2014: Flex sheet indicates "leave" for each day. • 26 March 2014: 87 hours entered on flex sheet as Time off in Lieu (TOIL). • 27 March 2014: Hours worked are entered as 8.30am – 12.30pm. • 28 March 2014: 100 hours entered on flex sheet as TOIL. • 31 March 2014: 122 hours was entered on flex sheet as TOIL. • Carried forward hours shows as nil on flex sheet. It should be 2.30 hours in debit. • 4 April 2014: No finish time entered on flex sheet. 25. On 16 April 2014, Ms Barry bought to your attention that you failed to maintain up to date Motor Vehicle Running Record (MVRR) and as of 11 April 2014, only 1 and 2 April 2014 had been entered on your MVRR. 1. The Report records that, as part of her investigation, Ms Nix received written statements from the following persons: * Ms Cindy Cannell, Assistant Sheriff Regional, Manager, Northern * Mr Bayden Jeanes, Chief Inspector, Officer In Charge, Newcastle Sheriff's Office * Ms Kirsten Barry, Second In Charge, Newcastle Sheriff's Office * Ms Leah Morrow, Acting Officer In Charge, Toronto Sheriff's Office * Mr Barry Wademan, Sergeant, Parramatta Sheriff's Office currently working at Newcastle Courthouse and Sheriff's Office 1. In addition, the Report records that the following persons were interviewed by Ms Nix: * Mr Ewan Lints, Private Security Guard, Newcastle Sheriff's Office * Mr Stephen Andrews, Sheriff's Officer, Newcastle Sheriff's Office * Mr Anthony Kildey, Sheriff's Officer, Newcastle Sheriff's Office * Ms Emma Esler, Court Officer, Newcastle Sheriff's Office 1. Ms Nix also made contemporaneous notes of conversations she had with: * Mr Craig Hendrickse, Sheriff's Officer Broadmeadow Children's Court * Mr Rod Chenhall, Director Hunter/Central Coast, NSW Corrective Services The conversation with Mr Chenhall was via the telephone. 1. In addition, Ms Nix conducted an extensive interview with the applicant on 12 May 2014, in the presence of an officer from the Public Service Association. 2. In the Executive Summary of the Report, Ms Nix stated as follows: Summary of findings The investigation found that there is sufficient evidence to substantiate a majority of the allegations. A table detailing each allegation, Mr Paulson's responses to the allegations and the findings relating to each allegation is attached at Tab 3. In summary, the allegations listed at 1b, 1c, 1d, 1e, 1g, 1h, 1i, 2, 3a, 3b, 3c, 3d, 3e, 3f, 4a, 4b, 4c, 4d, 5, 6, 7, 8, 9, 13, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 are substantiated. The allegations listed at 1a, 1f, 4e, 10, 11, 12, 14 and 15 are unsubstantiated. In general, the evidence identified during the course of the investigation indicates that Mr Paulson has consistently failed to meet the minimum standards of professional and ethical behaviour expected of Departmental staff and in failing to do so, has seriously breached the Department's Code of Conduct; Dignity and Respect Policy, Court Security Act 2005 and the Sheriff's Act 2005, which represent a serious issue of concern. Mr Paulson's actions, behaviour and conduct are contrary to his responsibilities as an employee pursuant to section 28 of the Work Health and Safety Act 2011, namely to take reasonable care for the health and safety of people who are at the employee's place of work and who may be affected by the employee's acts or omissions at work. The evidence indicates that Mr Paulson's managers/supervisors have all experienced similar difficulties when attempting to address Mr Paulson's inappropriate conduct and behaviour. Mr Paulson appears to demonstrate a lack respect for management and his team members alike. Mr Paulson takes limited responsibility for his actions. He has demonstrated a lack of understanding that his conduct may be considered inappropriate and how his behaviour impacts upon and affects other people. During the investigation Mr Paulson displayed conduct and behaviour similar to the allegations raised against him. In my dealings with Mr Paulson I found him to be unprofessional. He was rude, argumentative and confrontational. He was often unpredictable and he would escalate to anger and aggression quiet rapidly. He made attempts to control and direct the investigation. He would often speak in a threatening manner and use offensive language. Mr Paulson's actions, behaviour and conduct have the potential to create substantial adverse effects on workplace relationships, peers and colleagues. There has already been an irreparable relationship breakdown between Mr Jeanes and Mr Paulson. Recommendation Taking into consideration the evidence gathered during the investigation and the conduct exhibited by Mr Paulson during the investigation, it is recommended that this matter continue as misconduct. 1. Mr Talbot adopted the findings made by Ms Nix in relation to each misconduct allegation against the applicant. After receiving written submissions from the applicant, and conducting a face to face interview with him, Mr Talbot dismissed the applicant with effect from 20 October 2014. Evidence of the applicant 1. The applicant denied the vast majority of the misconduct allegations against him, which had been found by Ms Nix and Mr Talbot to have been substantiated. A small number of the allegations were admitted by the applicant, but he claimed that they had been dealt with at the time. A number of the specific allegations were put to the applicant during the proceedings. Those allegations, in the terms set out at Tab 3 of the Report ("the Findings Summary") and the applicant's responses are set out below. 2. Allegation 1h. On 27 September 2012, the applicant failed to secure Broadmeadow Children's Court overnight in that he did not engage locking mechanisms for the front entrance doors. The applicant was cross-examined about allegation 1h, which he admitted but claimed he had made a mistake due to the installation of a new system and being distracted by his own personal issues. 1. Allegation 1g. On 15 April 2013, the applicant failed to take appropriate measures to adequately secure Broadmeadow Children's Court overnight by not engaging locking mechanisms of the front entrance doors. Again, the applicant admitted this allegation and agreed that he understood the seriousness of leaving court premises unsecured. During cross-examination, the applicant was taken to a copy of an email from Ms Cannell to him dated 10 May 2013, in which Ms Cannell expressed her disappointment that the applicant had not, at the time, acknowledged that failure to secure the court premises was a serious matter. The following exchange then occurred: Q. If I ask you to turn over the page to page 74, there's a response from Cindy Cannell to you indicating that she'd reviewed your report that we've just taken you to and she indicates she's very disappointed that you do not expressly acknowledge that failure to secure the Court premises was a serious matter. You just indicated that you accept that that was the case? A. Yeah, but I didn't get this letter. Q. It's an email? A. Email, I didn't get that email. Q. You didn't get it? A. No, I didn't. I didn't read that email. It's the first time I've seen it. And I'm not lying. I'm saying it's the first time I've seen it. Q. Mr Paulson, you've had a copy of this investigation report as part of the‑‑ A. It's the first time I've seen it, sir; I'm telling you the truth. Q. Just pause. This, as you know, is a page within the investigation report of Ms Nix; do you understand that? A. Yeah, I understand that. Q. And it is the case, is it not, that you were provided with a copy of this report? A. Yes, I understand that. Q. In full? A. I understand that. Q. As part of the process that‑‑ A. That would be correct. Q. Are you saying notwithstanding it was included in that report, some‑‑ A. I didn't get that. I just said I didn't get it, but I did admit to it. I didn't get that, though, from Cindy. Q. You didn't get it at the time, you say? A. No, I didn't get it at the time, sorry. 1. Allegation 9. The applicant made an application to engage in secondary employment with Corrective Services on or about 6 May 2013, management declined the application. The applicant engaged in said secondary employment without approval on the following dates: 24-26 April 2013, 1 May 2013, 3-5 May 2013 and 11-12 May 2013. The applicant denied that he was asked on three or four occasions by Mr Chenhall to provide him with a letter from the NSW Sheriff approving his secondary employment with Corrective Services. He also claimed that he had advised Ms Cannell verbally that he had started work at Corrective Services. The following exchange occurred during the applicant's cross-examination: Q. Would you agree one of the ways of breaking down barriers with your supervisors is to be up front as to what had occurred here. You didn't tell her that you'd already started work at Corrective Services, did you? A. Yes, I did. Q. I suggest to you you didn't? A. I suggest to you I did. I did tell her verbally. Q. I put to you that's untrue? A. You can put that to me. Q. I beg your pardon? A. You can put that to me. That's what I recall. However, when pressed in relation to a telephone conversation he had with Ms Cannell on 6 May 2013, the applicant gave the following evidence: Q. Mr Paulson, just before we adjourned, I was asking you questions about the secondary employment. What I want to put to you very clearly is that when you had your conversation with Ms Cannell on 6 May 2013, you did not disclose that you'd already started work with Corrective Services? A. No, I don't recall. I'm pretty sure I did tell her, but I don't recall. Q. I want to put to you that certainly by the end of that discussion, you understood it was inappropriate to take any further employment with Corrective Services until you had the prior approval? A. Yes, that's why I talked to her about it. I talked to her about it. I brought it to her attention, yeah. Q. What I'm putting to you is in fact you worked two further days? A. I don't recall, sir. Q. Several days after that telephone conversation? A. I don't recall, sir; I don't recall. Q. I want to put to you that in fact your actions and your communications with Ms Cannell were deceptive in that regard? A. I don't recall. Q. It's the case, is it not, that two days after your telephone conversation which you hung up on her, you called her again and apologised for your behaviour in that conversation? A. Don't recall. Q. Is that because you apologise for your behaviour frequently? A. I don't recall. Q. What I'm putting to you is that a common practice of yours to go off the handle and then later reflect upon it and then apologise? A. I don't recall. Q. I suggest that's not an appropriate answer, Mr Paulson? A. Well, I don't recall going off at her. That's what I'm saying; I don't. It's not my nature. Records annexed to the Report disclose that the applicant had worked a further two days, 11 and 12 May 2013, for Corrective Services after his telephone conversation with Ms Cannell on 6 May 2013, without approval from the Department. 1. On 13 August 2013, Mr Hendrickse sent an email to Mr Jeanes in which he detailed his concerns about the applicant's work practices, in the following terms: 1) Radio being left in the courtroom in the public area… Local court staff returning it to myself.(unaware of the length of time it was there) 2) Radio being left in the meal room on numerous occasions with myself or court staff returning it to S/O Paulson. 3) Radio being left out at the end of shift and having the cleaner placing it on my desk before returning it to S/O Paulson. 4) Not responding or unable to hear duress pagers when activated. 5) Unaware if duress pager is operational. 6) Not recognising when duress pager is activated…I have been informed that S/O Paulson was unaware that his pager was activated while in court. He proceeded to ask court users if their phones were on and making a noise. It took the court officer to inform him that in fact it was his pager being activated. 7) Not performing unlock and lock up procedures…leaving court users in an interview room, locking the building and leaving those people wondering what to do. Signing off without proper checks only to have court staff ring me about unable to set the alarm. 8) Unable to use the cardax system effectively…leaving me to activate or rectify access cards… 9) Not performing regular patrols. 10) Not responding to radio calls. 11) Using inappropriate language and manner when communicating with staff The applicant was asked about this email from Mr Hendrickse. The following exchange occurred during cross-examination: Q. I ask you to go to page 75. Do you recall being made aware that Mr Hendricks submitted what I'll call a report under the subject "concerns" about your work practices on 13 August 2013? A. Yes, I didn't get this, though. Q. You didn't get that at the time? A. No. Q. But you subsequently did? A. No, I didn't; I didn't get it. Q. You got it when you got the investigation report? A. I'm looking at it here now, yeah. Q. You got it when you got the investigation report? A. It's okay, sir. Q. That's over two years ago? A. No need to raise your voice; it's okay, yeah, true. Q. You had the opportunity to respond to it? A. It's okay, sir, yeah. Q. That's correct? A. That's correct. Q. You'll see that he lists there some 11 issues relating to your performance, and he was the more senior security officer? A. No, he wasn't. He's a base grader like I was. There was no OIC at the thing at the time. He was only a base grader. He's got no management skills at all. Q. The first three matters related to the security of one of your appointments, your radio? A. Yeah. Q. That was a concern that was brought to your attention on a number of occasions? A. Was brought to the OICs attention that the battery charger was not working appropriately, so you couldn't charge the phone. He knew that, but anyway. Q. You're saying that at the time that Mr Hendricks put this report in, you weren't aware that he had concerns about your performance? A. Well, he's a base grader; he's not a manager. So, no, I didn't. He's done no management courses. 1. The applicant was then asked about the letter from Ms Cannell to him dated 23 August 2013, in which Ms Cannell identified three areas of concern where his performance had continued to be unsatisfactory, namely: * Failure to complete security duties competently. * Not maintaining accurate documentation/records. * Not abiding by the Code of Conduct and Dignity and Respect Policy. Under cross-examination, the applicant gave the following evidence: Q. You recall receiving that letter? A. I recall that letter; yeah, I recall receiving that one. Q. She was bringing to your attention the perception of your continued, unsatisfactory performance and that Mr Jeanes had discussed performance issues previously with you; is that correct? A. In the company of a witness, maybe, yes. Q. She was communicating to you that she was of the view that you've continued to perform your duties in an unsatisfactory manner? A. In front of a witness, Geoff Noble, yes. Q. That there were three areas of concern where your performance has continued to be unsatisfactory, and they're set out in the three bullet points? A. No, that's not correct. Yeah, that's her interpretation, yeah, but I feel that was incorrect. Q. She put you on notice that she was considering referring those matters to the sheriff for the purpose of implementing remedial action, but before doing so, she wanted to give you the opportunity to improve your performance? A. No, she didn't; she did not. Q. She scheduled a meeting for 4 September and invited you to bring a support person to discuss those issues? A. Which was Geoffrey Noble; it was the same time. Q. It's the case, is it not, that you then went off on stress leave? A. Don't recall. Q. For a psychological injury? A. Don't recall. 1. The applicant was then questioned about a memorandum dated 28 November 2013 from Ms Cannell to Tracey Hall, Sheriff of NSW, requesting a HR Review of performance issues pertaining to the applicant. The following exchange occurred: Q. If I take you to page 47 of the investigation report, and this is, so you know and because you've seen this before, in fact, the subsequent report by Cindy Cannell to the sheriff, Tracey Hall, requesting human resource review of your performance? A. Is that an email; I just don't understand. It's got no name. I've never seen it; I've never seen it. Q. That's not correct. You keep saying that, but you've had this report for over two years? A. I have never seen that report; I'm telling you. It might have been in there; I haven't read that. I've never been given it to me or sent to me; it wasn't posted to me. No, sorry, I haven't seen it. It's the first time I've seen it. Q. Mr Paulson‑‑ A. It's the first time I've seen it, sir. Q. You're seen the report, the complete report for over two years? A. Sir, I haven't. I haven't seen it, sir. This is the first time I've seen it. Q. Just listen to me. The records show that a copy of the investigation report was sent to you by Mr Talbot? A. It wasn't sent to me. The transcript was; I've never seen this. That's the truth; I have never seen that. I've never seen it. Q. Never seen this bundle? A. I've seen the report. I've seen a lot of it, but I've never seen this bit of paper, this paperwork ever; I've not seen it. Q. Are you saying that you can't recall seeing it because there's so much‑‑ A. I can't recall seeing it; I can't recall seeing it, yeah; I can't recall seeing it because I've never received it. I don't think I've received it, sorry. Q. I want to suggest to you that you were provided with a full set of the report and you were given an opportunity to respond to it? A. If you suggest, yes; you can suggest, yes. Q. I'll check because I recall that you put in submissions concerning the investigation report, did you not, to Mr Talbot for his consideration in the final decision? A. No, I just got pulled straight over to Mr Talbot without any disciplinary actions, nothing. I just got told to go see Mr Talbot; that was it, no more. I just got sacked. Q. If I can direct your attention to the first line says, "Officer Paulson was served a notification of not performing duties in a satisfactory manner, stage 1 performance counselling on 23 August, after obtaining approval from acting sheriff to commence the process. After being given the notice, Officer Paulson commenced leave after submitting a worker's compensation claim for psychological injury", do you recall that? A. Yes. Q. And it indicates that the worker's compensation claim was declined on 16 September? A. Yes, and I'm not doubting any of this. I'm not saying that's wrong. I'm saying that's right, but I've never seen that in my life. That's the first time I've seen it. I've read that; that's all true, correct, but I've never seen that paperwork in my life. Q. I suggest to you if you haven't seen the paperwork in your life, that's of your own choice? A. No, I didn't. No, it's not my own choice. Q. Of your own choice because you've had the report for over two years? A. I've never seen this, only my report, I'm telling you. I'll just go yes or no. 1. Allegation 3d. On, or about 30 September 2013, the applicant approached Sheriff's Officer Mr Steven Andrews and made a statement with words to the effect of, "Andrews, you nothing but a dog". The applicant gave the following evidence under cross-examination: Q. Around 30 September 2013, there was a security incident where you and Stephen Andrews were in Mr Jeanes' office being questioned? A. That's correct. Q. As you walked out, you said words to the effect to Mr Andrews, "You dog, you fucking dog"? A. I didn't swear. I said he's a dog. I called him a dog; yes, I did. I didn't swear at him, though. …………….. Q. You'd agree that's not appropriate language to direct to a work colleague in a work situation? A. I understood that was in general conversation with me and him. We weren't in the general public. I wasn't on to do the rout; he was at the time. I was rostered on for the scanners. His job was to rout and go upstairs but I did say that and, yes, it was wrong. 1. Allegation 1c. At approximately 11.00am on 13 November 2013, the applicant compromised the security of Toronto Court Complex by leaving BMS Private Security Officer, Mr Ewan Lints on his own at the scanners whilst engaging in discussions with an unknown Aboriginal person/s adjacent to the Court Registry. In his affidavit tendered in these proceedings, the applicant denied that he left Mr Lints on his own at the scanners, as he was only ten metres away and was assisting an indigenous man who needed assistance. Under cross-examination, the applicant claimed that he was only five metres away from the scanners talking to a young Koori lady. 1. Allegation 1d. Having been advised by BMS Private Security Officer, Mr Ewan Lints of an unknown male person attempting to gain entry to Toronto Court Complex with a prohibited item (being a razor blade) concealed in his wallet, the applicant knowingly permitted the stated unknown male person with the prohibited item (being a razor blade) on his person, entry to Toronto Local Court on 13 November 2013. The applicant denied this allegation and claimed that it was a woman who came through the scanners with a wallet with a surf emblem on the corner of the wallet. The applicant gave the following evidence under cross-examination: A. I requested for CCTV footage that day in relation to ‑ because he said it was a man, and it was a woman who come through the scanners, and when she come through the scanners she had a bag and she had a wallet, like that, and on the corner of the wallet was like a little emblem of, like, a surf and it was in the corner. Mr Lints told me that was a sharps. I asked the lady to empty her bag. It was that corner; that was all it was; it was a corner emblem on it, and there was no sharps at all. Like I said, if they would like to see the CCTV footage, it would have shown, would have shown it. 1. Allegation 1e. In permitting the unknown male person in possession of the prohibited item (being a razor blade) entry to Toronto Local Court on 13 November 2013, the applicant made a statement, with words to the effect of, "Don't worry about it just make sure your wallet stays in your pocket". The applicant also denied this allegation in the following exchange: Q. You permitted the man to keep the object and you simply said, "Don't take it out of your wallet"? A. It wasn't a man; it was a lady. CCTV footage would have showed that. So, no, it was a lady, and it wasn't a sharps in the first place. It was just ‑ like I said, it was on the corner of the wallet; it was like a surf emblem, and that's what it was. 1. As a consequence of the three incidents referred to in allegation 1h (failure to secure Broadmeadow Children's Court overnight on 27 September 2012), in allegation1g (failure to secure Broadmeadow Children's Court overnight on 15 April 2013) and in allegation 1d (permitting a male person with a razor blade on his person entry to Toronto Local Court on 13 November 2013), on 20 November 2013 the applicant's appointment as a security officer for the purposes of performing court security functions was revoked by Ms Hall pursuant to section 21 of the Court Security Act 2005. The applicant claimed that this just didn't make sense to him. Evidence of the Department Nicole Nix 1. The Department tendered into evidence a statement of Ms Nix together with the Report dated 18 July 2014. Ms Nix was cross-examined at some length on the Report and the findings contained therein. 2. Ms Nix was cross-examined in relation to her finding that some of the misconduct allegations against the applicant had been substantiated on the balance of probabilities, on the basis of "corroborating evidence of Mr Paulson displaying similar behaviour" given by persons who were not present when the actual incident occurred. For example, allegation 3a was that during a conversation with Ms Esler on 26 November 2013, the applicant made comments concerning Mr Jeanes to the effect of, "he is fucking setting me up". Ms Nix, in finding this allegation to have been substantiated on the balance of probabilities, noted in the Report that, "Mr Lints, Mr Jeanes and Mr Kildey have all provided corroborating evidence of Mr Paulson displaying similar behaviour". Neither Mr Lints, Mr Jeanes nor Mr Kildey was present during this conversation between Ms Esler and the applicant. 3. Ms Nix was cross-examined in similar vein in relation to allegations 3b, 3c, 3e, 3f and 3g. The following exchange occurred: Q. Can I suggest that what you actually did was you received some complaints from some witnesses about foul language and you've simply used all the evidence of each other to corroborate those allegations; is that what you've done? A. Yes. Q. Because many of these allegations occurred one on one: that is, it was Mr Paulson with one other person present; is that correct? A. Yes. Q. You've taken the evidence of all of them, even though they weren't present, to substantiate those allegations against Mr Paulson; is that what you've done? A. Yes 1. Ms Nix adopted a similar approach to "corroborating evidence" with respect to allegations 4d, 13, 16, 17, 18, 19, 20, 21, 22 and 23. 2. Allegation 22 is that on 3 April 2014, during a conversation with Ms Barry about an application to withdraw a Jury, the applicant spoke in an inappropriate manner saying words to the effect of, "I don't know what you're talking about. I won't be blamed for discharging the Jury". It was put to Ms Nix that this was an example of a trivial allegation. The following exchange the occurred: A. I'm trying to remember what occurred. Can I refer to my report? Q. Yes, you can. A. Sorry, I'm just reading the evidence from Kirsten Barry so I can remember what it is. Can you ask me the question again, please? Q. Certainly. Do you consider that to be a serious allegation of misconduct? A. No. Q. Do you agree that it's a trivial allegation? A. I don't think it's trivial. Q. There's no swearing, is there? A. No. Q. Mr Paulson may have been under the misapprehension that he was being accused of something; do you agree with that? A. I don't know; I can't speak for what he was thinking. Q. He simply states a fact, "I don't know what you're talking about; I won't be blamed for discharging the jury", that's his response, isn't it? A. Yes. Q. It's a fair response, isn't it? A. I don't know whether it's fair or not. Q. You've said it's an allegation of misconduct, have you not? A. Yes. Q. I want to suggest to you that it's not an allegation of misconduct; what do you say to that? A. I don't have anything to say to that. Q. But you've upheld that allegation as being substantiated, have you not? A. Yes. Q. And it was one of the allegations that you say were used to have Mr Paulson dismissed; do you agree with that? A. One of the 22. Q. Yes. A. Yes. Q. You still think it was an allegation of misconduct worthy of being substantiated; is that your evidence? A. Just bear with me one sec. I don't know what else you want me to say in relation to that, sorry. Q. I want you to agree or disagree that it's a trivial allegation not amounting to misconduct; what do you say? A. I'll say it's not serious. 1. In relation to allegation 17, that on 18 December 2013, the applicant spoke in an aggressive and inappropriate manner to Mr Kildey, saying words to the effect of, "Don't talk to me. You're a big disappointment to me", Ms Nix stated in the Report that "Mr Jeanes, Mr Barry, Mr Kildey, Mr Andrews, Ms Morrow and Mr Hendrickse have provided corroborating evidence regarding Mr Paulson engaging in similar conduct and behaviour". Ms Nix found that there was sufficient evidence, on the balance of probabilities, to substantiate allegation17. 2. Ms Nix confirmed that, during her investigation, she did not speak to any of the people whom the applicant had suggested would speak on his behalf. 3. Some of the people who were approached by Ms Nix, such as Sheriff's Officer Jacqueline Gladwin, declined to participate in the investigation. Allegation 1b was that on 12 December 2013, without consent or authority, the applicant approached Ms Gladwin and alleged that she had permitted entry of a prohibited item (being a razor blade) into Newcastle Court Complex on 11 December 2013. It was further alleged that the applicant then proceeded to question Ms Gladwin as to why she had been permitted to work at the scanners and continue to carry appointments. It was not alleged that anyone else was present when this incident occurred. 4. In the Findings Summary section of the Report, Ms Nix noted, in relation to allegation 1b, the following: Mr Paulson denies allegation 1b. Mr Paulson stated, "That's Fabricated… I didn't have no conversation with her in relation to that. All I got told is that razor blades ... sharps got put into Newcastle Courthouse and that's where I left it". On 12 December 2013, Mr Paulson sent Ms Hall an email asking if the Officer who found the razor blade was going to be investigated and lose their appointments. And also asked: "Is it just poor management or is there different policy for Toronto?" 1. Despite the applicant's protestations of innocence, Ms Nix, in the Findings Summary, found allegation 1b to have been substantiated in the following terms: Ms Gladwin declined to participate in the investigation. Mr Paulson's email to Ms Hall is inappropriate in content and tone. Mr Paulson has disregarded established reporting structures and procedure. Mr Jeanes, Ms Esler and Mr Andrews have all provided corroborating evidence of Mr Paulson displaying similar behaviour. There is sufficient evidence, on the balance of probabilities to substantiate allegation 1b. 1. Ms Nix was cross-examined in relation to allegation 1b as follows: Q. It's the case then that you really only spoke and interviewed people who had grievances with Mr Paulson; isn't that fair? A. There were other people at the sheriff's office who I asked if they wanted to be interviewed and they chose not to be. Q. Who are they? A. I can't recall, sorry; I can't recall all their names. Q. There was a Jacqui Gladwin who you approached; do you recall approaching her? A. Yeah. Q. She chose not to participate; that's correct, isn't it? A. Yeah. Q. If I can take you to your summary of findings on page 29, allegation 1B at the bottom of the page relates to Jacqui Gladwin, do you see that? A. Yes. Q. Despite Jacquie Gladwin declining to participate, you still found that allegation substantiated; do you see that on the far right of the page? A. Yes. Q. On what basis could you have found that allegation substantiated without any evidence from Jacqui Gladwin? A. So, the similar behaviour. Q. What similar behaviour would that be? A. Can I just read it, sorry. Sorry, can you ask the question again? Q. Yes. On what basis could you have found that allegation substantiated without any evidence from Jacqui Gladwin? A. I'm talking about displaying similar behaviour. I've also mentioned here an email as well to Ms Hall, and his response that, "It's fabricated; didn't have a conversation with her in relation to that. All I got told is that there's razor blades, sharps got put in Newcastle Courthouse. That's where I left it". I guess the similar behaviour is the response; it's a similar response to others, Mr Paulson's behaviour when addressing people. I guess that's the‑‑ Q. Can I take you to page 9 of your report. Midway down the page is the heading standard of proof. You placed a standard of proof on yourself of the balance of probabilities; is that correct? A. Yep. Q. You're telling this commission that you were satisfied on the balance of probabilities of allegation 1B without a statement from the main witness? A. If I'm taking into account all of the evidence in relation to all of the allegations, I would say it's more than likely ‑ it's probable that, yes, that did occur. Q. Does it follow then that if you can find enough people with a grievance against an individual such as Mr Paulson that that's good enough in your eyes to substantiate all allegations; is that your evidence? A. No. 1. Ms Nix was also cross-examined in relation to allegation 1a, that on 11 December 2013, the applicant had knowledge of, and/or placed a prohibited item (being a razor blade) in the male amenities located on the ground floor of Newcastle Court, located by Mr Lints at approximately 4.20pm. Ms Nix had found this allegation to have been unsubstantiated. The following exchange occurred during cross-examination: Q. Do you agree now that there was absolutely no basis to accuse Mr Paulson of having anything to do with that razor blade? A. An allegation I get is just that. It's not fact. An event has occurred that's caused someone to believe that something may have happened and it's been unsubstantiated. I don't know if it's baseless. Q. Can you point to any evidence that pointed to Mr Paulson having anything to do with that razor blade at all? A. No. 1. Allegation 3g was that, following the incident with Mr Hendrickse at Broadmeadow Children's Court on or about 12 August 2013, the applicant made a comment with words to the effect of, "you fucking left me there alone, what was I supposed to do, it's a fucking OHS issue". Allegation 4c was that, on or about 12 August 2013, whilst questioning a number of youths concerning graffiti identified during a routine inspection of the male amenities of Broadmeadow Children's Court, the applicant failed, on at least three separate occasions, to respond to the radio calls of Mr Hendrickse. 2. Ms Nix was cross-examined as to why she had found these two allegations to have been substantiated in the absence of any written statement by, or interview with, Mr Hendrickse. The following exchange occurred during cross-examination: Q. Given the discrepancies in the versions provided in relation to the Broadmeadow Children's Court graffiti incident between Mr Hendricks and Mr Paulson, why did you accept Mr Hendricks' version? A. I don't know; I can't answer that. Q. You agree he never provided an interview or a statement to you? A. Correct. Q. You now say you don't know why‑‑ A. There was the incident report, and, obviously, my meeting with him. Q. That was sufficient to satisfy you on the balance of probabilities? A. Yeah. 1. Ms Nix was cross-examined about allegations 3b, 3c and 18 which all involved an interaction between the applicant and Ms Morrow. Ms Nix found each of these allegations to have been substantiated. She was then cross-examined about allegations 11 and 12 which also involved Ms Morrow but which were found by Ms Nix to have been unsubstantiated. The following exchange occurred: Q. If we then go back a page, to page 39, allegation 11 was the allegation that Mr Paulson attempted to serve a judgment debtor with some sort of notice or paper that stated "Doing time", do you see that allegation at 11? A. Yes. Q. You found that allegation unsubstantiated, due to insufficient evidence, do you see that in the right column? A. Yes. Q. Allegation 12 was an incident where Ms Morrow accused Mr Paulson and a Jeffrey Naber(?) of using her computer without her authority, do you see that allegation? A. Yes. Q. You also found that allegation unsubstantiated, due to insufficient evidence. Why was it that you were able to find those two allegations unsubstantiated, yet you accepted Ms Morrow's evidence on the other allegations she brought forward? A. Again, there were similar behaviours to corroborate what she had said, such as the swearing. Q. With allegation 11, for example couldn't you have done what you did with the other allegations and simply taken other alleged behaviours to corroborate that incident, like you did with others? A. I don't recall anything similar to that. I don't remember. …………………. Q. As you found two of her allegations unsubstantiated, did you not consider that she might not be a reliable witness? A. I don't ‑ I don't know what ‑ if I considered that, I don't recall. Q. You didn't call into question her credibility, given that she was making so many, seemingly trivial, allegations against Mr Paulson? A. No. Q. You didn't consider she might have an axe to grind with regards to Mr Paulson? A. No. 1. Allegations 1c, 1d, 1e and 13 relate to an incident which occurred on 13 November 2013 at the Toronto Court Complex involving the applicant and Mr Lints. Ms Nix was cross-examined about Mr Lints' apparent failure to report this incident to Ms Morrow during a conversation he had with her later on that same day, as follows: Q. Ms Nix, do you accept that there is evidence that Ewan Lints spoke to Leah Morrow on 13 November 2013? A. Yes. Q. Do you accept that there is no evidence that Ewan Lints raised the sharps incident with Leah Morrow on that day? A. Yes. Q. Do you accept that the only evidence in your report about the reporting of the sharps incident is when Ewan Lints tells Leah Morrow on 18 November? A. There's still the photograph and the machine‑‑ Q. I'm not asking about the photograph. A. No. Well ‑ no. Q. I'm asking about when it was reported. A. So, ask again. Q. The only evidence in your report about the reporting of that incident indicates that it was reported on 18 November. A. Yes. Q. There's no other evidence to the contrary, is there? A. Not that I can recall, no. Q. It's on 19 November, at page 82 of Ms Cannell's statement, that Mr Lints' statement is dated and signed. A. Yes. Q. Given the delay in reporting of that incident, were you not suspicious of Mr Lints and his reliability? A. No. Q. Why not? A. Because there's often delays in reporting. Q. Five days? A. Yes. Q. Shouldn't it have been reported on the day? A. I would have to check what their procedures are in relation to that. I don't know. Q. If someone had brought a gun into the Courthouse, you would have expected that to have been reported on the day, wouldn't you? A. I'm not sure what that ‑ what the reporting is. Q. It's your evidence that, as far as you were aware, Mr Lints was under no obligation to report this incident? A. No, I didn't say that. I was talking about timing of reporting. Q. He had an opportunity on the day to report it, do you accept that? A. He had a ‑ there's evidence that he had a conversation with Leah Morrow, yes. Q. Were you not suspicious about the fact that he'd actually waited five days to tell anyone about this incident? A. No. I don't recall that I was, no. 1. In relation to allegation 1d, Ms Nix was unable to recall if she asked for the CCTV from Toronto Court Complex for 13 November 2013 to be produced in order to determine whether the person who was "attempting to gain entry to Toronto Court Complex with a prohibited item" was one of two male persons, approximately 20-25 years of age, as was recorded in a written statement by Mr Lints on 19 November 2013, or a female person, approximately 55-60 years of age, as the applicant had stated to Ms Nix. The following exchange occurred: Q. We know there is no CCTV from Toronto Courthouse. Given it was, you say, your practice to ask for it, is it fair to infer that your request was ignored? A. I can't recall. Q. Did you not find it suspicious that that CCTV was never produced to you? A. I don't remember what ‑ at the time. Q. You will recall that Ewan Lints says it was a young man who went through the scanning point. A. Yes. Q. Mr Paulson said it was an older lady who went through the scanning point. A. Yes. Q. It follows, doesn't it, that the CCTV could have solved a big part of this dispute, doesn't it? A. It may have. Q. We would have been able to discern whether it was a 25 year old male or a 60 year old woman, wouldn't we? A. Yes. Q. If it was a 60 year old female, as Mr Paulson says, that would have clouded Mr Lints' credibility, wouldn't it? A. He may have made a ‑ no, I don't know about credibility but he may have made a mistake. I don't know. I don't ‑ I can't answer for what‑‑ Q. Exactly. It could have shown that he was‑‑ A. Pardon? Q. It could have demonstrated how unreliable he was as a witness, couldn't it? A. It may well have, yes. Q. If we had the CCTV, don't you accept that that would have illuminated so many issues in relation to this it this incident? A. If it ‑ but I didn't have it. Q. Precisely. Shouldn't you have obtained it? A. I can't answer why it's not there. Q. I've asked you, I think, before, did you ever ask for it? A. I don't recall. Q. Did Bayden Jeanes or Cindy Cannell ever offer it to you? A. I don't remember. 1. As part of the material relating to allegation 1d, Ms Nix had been provided with a printed image of what appeared to be a razor blade inside a wallet. In a written statement signed by Anthony Kildey, Sheriff's Officer, Bayden Jeanes, Chief Inspector and Sue Jenner, Senior Registrar, it was stated that the image was retrieved from the x-ray machine at Toronto Courthouse on 3 December 2013. The image bore no time or date stamp. The image was reproduced in the Report at page 194. 2. Ms Nix was further cross-examined as follows: Q. Do you accept that the image at 194 is not time stamped or date stamped? A. No, it's not. Q. Do you accept that there is no CCTV of who entered the Courthouse at the time that image was allegedly produced on that machine? A. Yes. Q. Do you accept that you and Lints delayed his reporting of that alleged incident? A. He delayed ‑ he delayed it. Q. He didn't report it immediately, did he? A. No. Q. Taking into account all of those factors, do you accept now that there was insufficient evidence to find that allegation against Mr Paulson substantiated? A. No, I don't feel comfortable saying that. Q. Why? A. Because I have a recollection that there's more in here in relation to retrieving that image, about times. Q. Please find it. A. Well, I ‑ it'll take me some time to read through it. Can you recall? Q. No. I've read it and I can't find any other evidence. A. Your question again is? Q. My question is, given the delay in reporting this allegation given the absence of CCTV and given the lack of a date stamp and a time stamp on that image, there was no basis to find that allegation against Mr Paulson substantiated? A. There's evidence of Mr Lints, regardless of when he reported it. The timeframe I don't think is relevant to that. Q. The timeframe is not relevant; is that your evidence? A. No. If it happened ‑ if he reported it on ‑ a day after or five days after, it doesn't mean it didn't happen. Q. It was a serious allegation of misconduct, was it not? A. Yes. Q. Shouldn't that have required it to be reported as soon as reasonably possible? A. I don't know ‑ again, I don't know what their procedure is in relation to that; I can't recall what that is. In a perfect world, yes. Q. In a perfect world, Leah Morrow was in Ewan Lints' area within an hour of the incident. Do you recall that evidence from a‑‑ A. Yes, I do. Q. If Ms Morrow is there within an hour, or about an hour, wasn't that a reasonable opportunity for Mr Lints to make the allegation? A. I don't know what else was going on at that time. Q. What about the day after or the day after that? A. I can't speak for why that didn't happen. Q. You weren't suspicious of that delay? A. No. Barry Wademan 1. The Department relied upon a written statement dated 17 April 2014 from Mr Wademan who was Acting Officer in Charge, Newcastle Sheriff's Office, from 10 February to 7 April 2014. 2. Mr Wademan's statement dealt with an issue involving the applicant's attendance at Toronto Courthouse on 25 February 2014, as follows: 4. On 25 February 2014 I sent PAULSON an email asking him why he had attended Toronto Courthouse when he was supposed to be in a carers leave. 5. On 26 February 2013, at approximately 8.30am PAULSON confronted me demanding he know the meaning of my email, he became agitated and said words to the effect of, "You have no idea. This is stressing me out. I'm going home". He left the office I was in and grabbed his bag from the main office area and left. A short time later he returned to the main office area and was sitting at a desk. I approached him and asked him if he was leaving or not. He said, "Can't I even send an email?" I told him if he was staying he was to go to his post, which was Court duties. He then advised he would be going. I had to leave the office and when I returned a short time later he had left. 6. On 27 February 2014, at approximately 8.20am I received a fax from PAULSON regarding a work cover certificate. The fax indicated it was sent from Toronto Courthouse. 7. On 27 February 2014, at approximately 8.40am I received a telephone call from PAULSON demanding I tell him how I knew he had attended Toronto Courthouse. I advised him I had been asked by the Acting Regional Manager, Bayden Jeanes to find out why. When I asked PAULSON why he wanted to know he said he was compiling a report. 8. On 27 February 2014, I advised Paulson that his previous workers compensation claim had been declined and the work cover certificate would cover him as a medical certificate. I advised PAULSON that he could apply for leave without pay for the period and he was not happy with that course of action and said he would seek advice from the Union. PAULSON said, "Use whatever leave there is. This is not my doing." I advised PAULSON I would enter the leave on his behalf. 9. On 14 April 2014, due to PAULSON refusing to be supervised by the Officer in Charge Bayden Jeanes, I asked PAULSON to attend field duties with Sheriff's Officer Suzanne Filipcevic. He sent me an email on the said date, requesting that he be placed in court as he would not work with someone who has made false allegations against him and that he felt unsafe working with FILIPCEVIC. 10. I asked PAULSON to attend field duties with another officer and he said he didn't want to wear his appointments and go out in the field. He said he wanted to stay and do court duties. He went to cover court 4 whilst I discussed with JEANES. I then sent JEANES an email regarding PAULSON's comments. 11. PAULSON can be very difficult to manage. He becomes very defensive and argumentative when asked to complete simple work tasks. He just blows up. 12. On a date I cannot recall, there was incident when he was helping Ms Emma Esler, the Court Officer with empanelling a Jury and he came up to the office and advised me he wasn't working down there, it was too hot and it was stressing him out. I told him to return to his post, and that he had to help Ms Esler and I offered him a fan. He didn't take the fan and he returned to help Ms Esler. 1. Apart from the incident involving Ms Esler which led to allegation 20 and which is referred to at paragraph 12 of his statement, Mr Wademan's evidence did not touch upon any of the specific incidents involving the applicant, which gave rise to the other misconduct allegations against him. 2. Mr Wademan was not required for cross-examination. Cindy Cannell 1. Ms Cannell provided a witness statement in the proceedings in which she gave evidence about her own interactions with the applicant in the following terms: 8. After I was appointed Assistant Sheriff, Mr Paulson came within my area of supervisory responsibility. 9. A few months after taking on my new role Mr Paulson raised with me a grievance concerning his interaction with his then Officer in Charge, Mr Tony Fiedler. That matter was able to be dealt with locally which I did. 10. As time progressed a significant number of performance issues were brought to my attention of escalating significance concerning Mr Paulson. 11. As a consequence, after consulting with human resources personnel and his Officer in Charge, Chief Inspector Bayden Jeanes, on 23 August 2013 I wrote to Mr Paulson to notify him of my concerns about his performance and advised him I was considering referring those concerns to the Sheriff for the purpose of implementing remedial action. However, I indicated to Mr Paulson that prior to doing so I wanted to provide him with the opportunity to improve his performance to a satisfactory level of conduct and scheduled a meeting for Wednesday, 4 September 2013 to discuss that opportunity. 12. However, at the scheduled meeting, Mr Paulson indicated that he rejected any suggestion that there were short-comings in his performance that needed to be addressed and asserted that he was being victimised. 13. His reluctance to acknowledge any shortcomings in his performance, reinforced by further conduct and performance issues of a serious nature, led me to formalise a request for a HR review of performance issues pertaining to Mr Paulson. That culminated in a memo from me to the Sheriff of NSW, Tracey Hall dated 28 November 2013. That memo outlined in considerable detail a summary of the main conduct and performance issues that had caused me concern in my role as regional manager that I had identified concerning Mr Paulson. The preparation of that briefing memo had taken some time as I had been experiencing medical issues that required some time off work in the previous month. 1. The memo from Ms Cannell to Ms Hall of 28 November 2013 was in the following terms: Background Officer Craig Paulson was served a notification of not performing duties in a satisfactory manner – Stage 1 Performance Counselling on 23/08/2013 (Attachment 1) after obtaining approval from Mick Grimson, Acting Sheriff to commence the process. After being given the notice Officer Paulson commenced leave after submitting a workers compensation claim for a psychological injury. The workers compensation claim was declined on 16/9/2013 Officer Paulson returned to work on restricted hours on 13/09/2013. With the exception of working full time hours at Toronto Court from 14/10/2013 to 15/11/2013. Officer Paulson's medical certificate still restricts his hours to 4.5 hours per day 5 days a week and states "Can work core hours, suggest change of location of workplace. Limit contact with people who have been involved with bullying as these people increase Craig's symptoms. If working at Newcastle or Broadmeadow with no contact with the people involved in the grievance process, Can work usual hours 7 hours/day, 5 days/week." On 13/09/2013 Officer Paulson was advised the performance management process would not commence until he is fit for pre-injury duties and working full time. Officer Paulson maintains the performance management process is harassment and he is being victimised and he does not appear to accept he has any performance issues. Officer Paulson also submitted a grievance/complaint against 3 other Officers to support his perception of being bullied and harassed. Mick Grimson managed the grievance process. Since being issued the notification Officer Paulson's workplace behaviors and performance appear to have declined. On 13/11/2013 Officer Paulson was the subject of an allegation of a significant security breach resulting in the Sheriff revoking his appointment as a Security Officer pursuant to the Court Security Act 2005. Considering the performance management process cannot commence until Officer Paulson is fit for pre-injury duties and Officer Paulson's performance has declined since being issued the notification it is recommended Human Resources conduct a review of the material contained within this report for a determination on how to proceed with the matter. 1. Attached to Ms Cannell's memo was a document entitled "Summary of Performance Issues" which went on for a further eight pages to list approximately 80 matters or instances which involved the applicant's poor performance and/or misconduct, under the following headings and subheadings: Summary of Performance Issues 1. Failing to complete security duties competently - five instances 2. Inappropriate workplace behaviours: Failure to abide by the Code of Conduct and the Dignity and Respect Policy - thirteen instances 3. Failure to maintain accurate documentation/records - four instances 4. Other - three instances Discussions/Emails with managers/supervisors/other paperwork 1. Failing to complete security duties competently - eighteen instances 2. Failure to abide by the Code of Conduct and Dignity and Respect Policy - seventeen instances 3. Failure to submit accurate documentation/records - six instances 4. Other - fourteen instances 1. A copy of Ms Cannell's memo, together with 96 pages of source documents, was provided to Ms Nix on 18 July 2014 during her investigation into the allegations of misconduct against the applicant. 2. Ms Cannell's witness statement in these proceedings continued as follows: 15. Exhibit 9 to my statement includes a file note of a telephone conversation with Mr Paulson on 6 May 2013 when he raised a request for six months leave without pay to pursue secondary employment with Corrective Services NSW on a casual basis. This was, he indicated, to give him greater flexibility to meet his family responsibilities. I indicated to him that he would have to put such a request in writing and told him an application for leave without pay was unlikely to be supported as it would cause significant operational difficulties in keeping the substantive position open for him. Indeed, recent applications from two other Sheriff Officers had been declined because of the operational implications. 16. Towards the end of the conversation Mr Paulson became agitated as evidenced by him speaking increasingly louder, talking over the top of what I was attempting to say and appearing extremely angry. He then terminated the conversation by abruptly hanging up on me which I found extremely disrespectful and rude. 17. A few days later Mr Paulson telephoned me and apologised for his behaviour on the telephone in the previous conversation (which is why I did not take the matter further at the time). 1. Ms Cannell was cross-examined about the "Toronto sharps incident" (allegations 1d and 1e). She gave the following evidence: Q. Do you agree that the most serious allegation against Mr Paulson is what has become known as "the Toronto sharps incident", where he is accused of admitting a razorblade into the Toronto Courthouse? A. I wasn't actually on duty when that particular incident occurred. The ‑ from reviewing the paperwork, I would say that a lot of the information that's been relevant ‑ it wasn't just ‑ to me ‑ it wasn't just one incident; there was quite a few, various, incidences. Q. There are a number of allegations recorded against Mr Paulson but are you of the view that the Toronto sharps incident is either the most serious or one of the most serious allegations? A. My view is, the Toronto sharps incident is as serious as the previous two security issues that we'd had, where the Court was left unsecured, and part of a package that showed overall attitude and conduct towards his duties. I personally haven't placed emphasis on the Toronto sharps incidence. Q. But you agree it was a serious allegation? A. It was a serious allegation, as were the others. Craig Hendrickse 1. Mr Hendrickse confirmed the truth of the contents of a Security Incident Report which he completed on 13 August 2013 which related to an incident that occurred at the Broadmeadow Children's Court on 12 August 2013 involving graffiti and other damage in the male toilets. This incident, and Mr Hendrickse' report, formed the basis of allegations 3g and 4c against the applicant. 2. Mr Hendrickse also confirmed the truth of the contents of his email of 13 August 2013 to Mr Jeanes, which is reproduced at paragraph 23 above. 3. Mr Hendrickse was cross-examined about his Security Incident Report of 13 August 2013. He had difficulty recalling the detail of the exchanges between himself and the applicant during this incident, given the length of time that has elapsed since it occurred. He was not cross-examined about the content of his email of the same date to Mr Jeanes. Ewan Lints 1. Mr Lints, who now resides in New Zealand, gave evidence by way of a telephone hook-up. At the time of the incidents about which he gave evidence, Mr Lints was employed as a Private Security Guard in the Newcastle Sheriff's Office. Mr Lints' evidence related, in particular, to allegations 1c, 1d, 1e and 13 which deal with the "Toronto sharps incident". 2. Mr Lints confirmed the truth of a written statement which he made on 19 November 2013 which contained the following: 3. On Wednesday 13th November 2013 I was working on the scanning point at Toronto Court House with Sheriff's Officer Craig PAULSON. 4. At approx 1100hrs I was manning the Smith machine and scanning area when two male persons, approx 20 – 25 years of age, entered the Court House and proceeded to place their belongings into a tray for scanning as requested by myself. 5. On viewing the footage of the belongings I noticed what appeared to be a blade (razor) secreted in the wallet belonging to one of the males. 6. At this time I waved at Sheriff's Officer PAULSON, who had left the scanning area to converse with an Aboriginal person adjacent to the Local Court Registry. 7. The entry to the Local Court Registry is approx 5 – 10 metres from the scanning area. 8. Sheriff's Officer PAULSON became aware of my attempts to signal him and returned to the scanning point. 9. On Sheriff's Officer PAULSON's arrival to the scanning point I advised him of what I could see in the X-ray. I showed him the x-ray using my finger to outline what I could see. 10. At this time the owner of the wallet suggested that the wallet be left behind, as he could not locate the object I referred too. 11. This is when I heard Officer PAULSON state to the owner of the wallet "Don't worry about it, just make sure your wallet stays in your pocket". 12. The owner agreed and placed the wallet into his pocket before walking away from the scanning area. 1. During an interview with Ms Nix on 9 April 2014, Mr Lints confirmed the contents of his written statement of 19 November 2013. Mr Lints also confirmed that the copy of an image of a razor blade in a wallet, which had been retrieved from the scanner at the Toronto Court Complex on 3 December 2013 and emailed to Ms Hall by Mr Jeanes on that same date, was the image which he had observed on 13 November 2013. 2. Under cross-examination, Mr Lints claimed that he told Ms Morrow about the incident involving the razor blade in the wallet at about 12.20pm on the day it occurred, 13 November 2013. Ms Morrow had been employed as the Acting Sergeant, Toronto Sheriff's Office, since 1 November 2013. It was Ms Morrow's practice to make detailed cotemporaneous notes about daily occurrences in the workplace, particularly those occurrences involving the applicant. On 16 April 2014, Ms Morrow prepared a written statement for Ms Nix as part of the investigation into the misconduct allegations against the applicant. Attached to that statement were Ms Morrow's contemporaneous notes of 5, 6, 7, 12, 13, 14 and 18 November 2013. The applicant featured prominently in those notes. In the notes for 13 November the following appears, referring to Mr Lints as "Private Security" or "P.S" I attended the scanners and could see Officer PAULSON outside in the front courtyard area with a number of Aboriginal males. I questioned Private Security if they were comfortable and felt at ease with staying by themselves, they answered yes. I made my way to the registry where I could monitor the scanning area. I took this position, as to remaining with P.S, as I wanted to see how long Officer PAULSON was away from his point. This was pressing to me for two reasons. 1) Officer PAULSON will not work one out but will leave others and 2) Leaving his point appeared to be becoming a habit. At 1220hrs a member of the public approached P.S requesting a Sheriff's Officer. The P.S was left looking around for staff. I raised my hand from the registry and signaled to send the individual in to me. This was not the first occasion I had encountered Officer PAULSON leaving his point to converse with Aboriginal people. I state this so boldly as this is what I have observed. In discussions with P.S about the topic of officer PAULSON leaving them one out, I was advised it is an ongoing habit. 1. Under cross-examination, Mr Lints gave the following evidence: Q. You say that it was a young man, at about 11 o'clock, who passed through the scanning point when you were there; is that correct? A. Yes. Q. You say this incident took place at about 11; that's correct? A. Yes. Q. Do you recall speaking to Leah Morrow at about 20 past 12 that day? A. Yes. Q. Did you report to her the incident involving the razorblade at that time? A. What I actually asked her about was whether we were allowed to keep people's wallets or hold onto wallets, and then she asked me why I wanted to know and that's when I told her what had happened. Q. You say that you told her that day, do you? A. Yes. Q. Why did you not include that anywhere in your statement? A. Well, because the statement ‑ she just asked me what happened on that day, so I told her from, like, when the guys came through, up to the time that Officer Paulson told them to carry on and, as far as I knew, that was the – that was the end of it. Q. So you'd be surprised, then, if you were to learn that Leah Morrow actually says that you didn't tell her about that sharps incident until five days later? That would be a surprise to you, would it? A. Yes. Q. You say now, under oath, that you reported that incident to her a little over an hour after it allegedly occurred, is that your evidence? A. Yes, I well, I asked her about keeping wallets, yes. Q. No. Let's be very specific about this. Did you tell Leah Morrow, at about 20 past 12 on the day of the incident, about the incident? A. Yes. Q. What were you words to her? A. I asked her if we were allowed to keep wallets or things like that and she said, "No, not usually" and then she asked me why and I told her that about the one that had gone through with the blade in it, or looked like a blade, and she said, "Oh, okay", and that was all she said about it. Q. She didn't ask you to make an incident report about it that day? A. No. Q. You're quite clear that it was 13 November, the day of the incident, that you reported the incident; is that correct? A. Yes. Q. Can you explain to the Commission why it was not until six days later that you actually made a statement about that incident? A. That was when Officer Morrow came and saw me and asked if I could make a statement about it, what had happened about the scanning. 1. Ms Morrow's notes of 13 November 2013 make no reference to being told by Mr Lints about a razor blade being seen going through the scanner, or being allowed by the applicant to be taken by its owner into the court complex. It is unlikely that such a meticulous historian, as Ms Morrow clearly was, would have omitted such an important detail from her notes if she had been told about it on that day, as Mr Lints claimed that she was. 2. The first reference to being told by Mr Lints about the incident of 13 November 2013, appears in Ms Morrow's notes of 18 November 2013, the day before Mr Lints made his written statement which is referred to at paragraph 64 above. 3. Ms Morrow was not called as a witness in these proceedings. Stephen Andrews 1. On 22 August 2013, Mr Andrews was working with the applicant when a disagreement occurred between the two of them over Mr Andrews' request of the applicant that he go to the office to serve some family law papers on member of the public. The applicant refused this request. 2. Following this disagreement, it is alleged that the applicant said to Mr Andrews words to the effect, "watch it Stevo, you don't know what's going on and if I am asked, I will flatly deny it. They're going down, especially that cunt out there. There's going to be an investigation from QBE" (allegation 3f). 3. Allegation 3f is framed as relating to an incident at Broadmeadow Children's Court but, in his interview with Ms Nix on 7 April 2014 and under cross-examination in these proceedings, Mr Andrews claimed that the incident occurred at the Newcastle Courthouse. Mr Andrew's also confirmed that the applicant had used the word "cunt" during this exchange. Mr Andrews subsequently reported this incident in an email dated 28 August 2013, and verbally, to Mr Jeanes. The email makes no reference to the applicant's use of the word "cunt" during this incident. 4. Further incidents occurred between Mr Andrews and the applicant. One such incident, on 22 September 2013, led to allegation 3e, and another, on 30 September 2013, led to allegation 3d. 5. During his interview with Ms Nix, Mr Andrews confirmed that the applicant committed the misconduct as alleged in allegations 3d, 3e and 3f, as well as allegations 20 and 23. 6. Under cross-examination, Mr Andrews was questioned about that part of the email he sent to Mr Jeanes on 28 August 2013, which related to allegation 3f. He gave the following evidence: Q. On to page 102 and so forth. Can you see, even from page 100, you give an almost verbatim account of that incident on 22 August, don't you? A. Yes, I did and I'd have to, Mr Ryan, because if I start giving different accounts or there's some misplaced words it just ‑ it makes it look funny when I'm in a situation like now. Obviously, my memory was consistent as to what happened. Hence the accounts have a level of consistency about them. Q. If you go over to page 101‑‑ A. Yes. Q. ‑‑you've already told the Commission that you were having some issues working with Craig, do you agree with that? A. Only on ‑ from ‑ I'd like to qualify that, if I could. I didn't have any issues working with anybody in the centre and it only started with Craig. It didn't start from the family law incident, it started from when he lodged a grievance against me. That's when I officially had issues ‑ I said I didn't want to work for him, for fear of having more allegations made. Q. Okay. A. Yes, but around the family law incident I had no issues working with him, at all, and I didn't state ‑ I don't recall stating that to anyone. From the grievance incident? Yes, I did. I was actually ‑ to be honest, I was scared to work with him. Q. Can you see midway down the page there's a paragraph that commences "He said" and goes on to quote "I'm not doing it. I've had enough" ‑ sorry, "I've had Hendo dob me in out at kids' Court", do you see that? A. Yes, I got ‑ I see that, Mr Ryan, yes. Q. "And Bayden will smash me if I take off, and he's given me strict orders to stay here and not move, and that's what I'm doing", do you see that? A. Yes, I do, two lines, yes. Q. That was when you had asked him to go upstairs to serve the family law papers; is that correct? A. Yes, that's correct. 1. In relation to allegation 3e, concerning the incident which occurred on 22 September 2013, Mr Andrews claimed that this incident also occurred at Newcastle Courthouse, not at Broadmeadow Children's Court. He confirmed that the applicant again used the word "cunt", possibly in reference to Mr Hendrickse. However, in his interview with Ms Nix, Mr Andrews had stated that the applicant, in his use of this word, may have been referring to Ms Cannell or Mr Jeanes. 2. Under cross-examination, Mr Andrews confirmed that, on 30 September 2013, the applicant said to him word to the effect, "Andrews, you nothing but a dog" (allegation 3d) or "You're dogging me". Mr Andrews gave the following evidence: Q. Ms Nix goes on to say, "On 30 September last year, I've been advised that Mr Paulson approached you and made the statement to the word of the effect of, 'Andrews, you're nothing but a dog'. Do you recall that?" Do you see that there? A. Yes, I do. Q. Your answer is, "Partially. I believe the context and location ‑ what occurred ‑ it stemmed out of his originally declining, at a previous date I can't recall, to go and serve family law papers. A lady ‑ sorry, I'll have to go in rewind to explain this", do you see that answer? A. Yes, I do. Q. When you answer that question by saying "Partially. I believe", would it be fair to say you're not sure of where and when that incident may or may not have occurred? A. Are you referring to the family law papers incident, Mr Ryan? Q. I think that's what you're referring to there; is that correct? A. With all due respect, no, that's not correct. Q. So it's a different incident? A. No. No, that's not correct either. Q. So it's the same incident? A. No, sorry, what I'm ‑ what I believe I'm referring to there is that I can't ‑ I couldn't definitively say to Nicole that ‑ I was half sure but it's only from ‑ yes or no ‑ if Craig ever referred to me as a dog or "You're dogging me". That incident happened. The import of that incident, I stand by it, my version against his, but, as far as ‑ if on and/or around that date he called me a dog, I was not entirely sure because a lot of words were said. I'm only referring to the comment, if he said I'm a dog. The rest of the incident happened and I wasn't happy with what he did or didn't want to do but, as far as calling me a dog, I couldn't come out and say ‑ I'd be perjuring myself if I said, "Yeah, he called me a dog on that day". I can't definitively say. That's the only thing I'm referring to ‑ the dog comment. Okay? Not the ‑ the incident happened but it's the dog ‑ the words ‑ the dog comment. That's why I'm sort of partially ‑ if that makes sense, if I've explained it right. Q. It doesn't. A. Okay. Sorry. Apologise. Q. Do you connect the dog comment to the family law papers incident or another incident? A. I can't ‑ no. To an incident, I can't ‑ I can connect it to something, I can't definitely connect it to that, yes, sorry, if that's answered your question more clearly. Sorry about that. 1. Mr Andrew's was also cross-examined in relation to allegation 20 and confirmed that, during this incident, the applicant used the word "fucking". He was questioned about his interview with Ms Nix, where she asked him about this incident and he gave the following evidence: Q. I want to put to you that Mr Paulson never used the eff word. A. No, I refute that, Mr Ryan. He did use the eff word; I clearly heard him say it. Q. Why do you then go on and say, at around line 43, just below that, "I found that, quite frankly, disgraceful. That was ‑ I didn't hear it, I saw ‑ I heard part of it"? A. Yes. Q. Don't you admit there that you didn't hear it, or‑‑ A. No. What I'm stating there, Mr Ryan, what I'll state to the Commission now, is that he ‑ to put it bluntly ‑ went on to rant, said a lot of things. I did not hear every word that he said but, if for some reason, unfortunate or otherwise, whether it's my mind or anyone else's ‑ I clearly heard the eff word being displayed (as said), because ‑ when you have around 100 to 150 jurors in a room, that's the word that stands out that you don't forget very easily. So, I'm stating to the Commission again, that word was said on the day, in front of multiple jury panels, by Mr Paulson. I stand by that. 1. Although Mr Andrews told Ms Nix, during his interview with her, that he had witnessed the incident which led to allegation 23, he was not cross-examined about this incident. Rodney Chenhall 1. According to Ms Nix's contemporaneous notes of a telephone conversation she had with Mr Chenall on 16 April 2014, the applicant had engaged in nine days employment, including induction, with NSW Corrective Services between 24 April and 12 May 2013 (allegation 9). Ms Nix's notes record that, "Mr Chenhall asked Mr Paulson on 3-4 occasions to provide him a letter from the NSW Sheriff approving his secondary employment with NSW Corrective Services. When Mr Paulson did not provide the letter, Mr Chenhall advised Mr Paulson he was unable to continue employing him". 2. Mr Chenhall was called as a witness in the proceedings. His appearance before the Commission was relatively brief. His evidence went as follows: SWORN(3.53PM) Q. Mr Chenhall, could you please tell the Commission your full name and work address? A. Yes. Rodney Chenhall. Work address is ‑ well, based on Kempsey, running the north district for Corrective Services. Q. Could you please indicate your current position with Corrective Services New South Wales? A. Yes. Director for the north coast. COMMISSIONER: Where should I be looking in the bundle? BENSON: 335. It's a note taken by Ms Nix. Q. Mr Chenhall, you employed Mr Paulson to supervise inmates on work release in 2013; is that correct? A. Correct. Q. Were you involved in the interviewing or recruitment process for Mr Paulson? A. No. Q. Were you involved in any supervisory role of Mr Paulson when he performed those shifts? A. No. Q. Did you receive any feedback at all about the work he did? A. No. Q. Ms Nix, who was an investigator in relation to misconduct allegations against Mr Paulson, made a contemporaneous note of a telephone conversation she had with you in April 2014, do you recall that telephone conversation? A. I recall a conversation being had but not the content. Q. She has made a note that you said to her that you asked me Mr Paulson, on three or four occasions, for him to provide you with a letter approving secondary employment, do you recall telling Ms Nix that? A. I don't remember. Q. Do you recall asking Mr Paulson on three or four occasions for him to provide an approval for secondary employment? A. No, I don't recall that. NO RE-EXAMINATION Emma Esler 1. The last witness called to give evidence in the proceedings was Ms Esler. She confirmed the truth of the answers she provided during an interview with Ms Nix on 9 April 2014. 2. During that interview, Ms Esler told Ms Nix that the applicant had said, in reference to Mr Jeanes, "he's fucking setting me up" (allegation 3a). Ms Esler also confirmed that, sometime in or about February 2014, whist empanelling a jury, the applicant called her over and said, "it's too fucking hot in here, I can't do this, I'm out" and got up and left the room. She claimed that the applicant said this in front of approximately 40 potential jurors (allegation 20). In addition, Ms Esler told Ms Nix that, during the week prior to her interview, the applicant had asked her, "do you have a problem with me" and then told her that he had received a letter from the Department with her name on it in relation to an investigation and he wanted to know what she had said (allegation 21). 3. Ms Esler was cross-examined about allegation 3a, by reference to the transcript of her interview with Ms Nix, as follows: Q. You give details about what you said occurred in courtroom 4, where Mr Paulson is alleged to have said, "He is fucking setting me up". A. Correct. Q. If I can take you down to about ‑ do you see the number 25? A. Yes. Q. You say: "Craig had the sheet. I came, like, next to him and asked him the date that the Stevens(?) trial needed to ‑ was given. As I'm doing that ‑ so I check the date. As I'm doing that, Bayden then walked in and I'd taken the courtroom sheet off Craig. Bayden then said to me, 'What was the date?' So I showed Bayden the date, instead of telling him, in the courtroom. He then said, 'Thank you for that,' I think, and walked out. Craig then said to me, 'What's Bayden doing? Is he checking up?' I thought he said, 'Is he checking up on me,' or something to that effect, and I said, 'No. We needed to know the date of the security risk,' and then I believe that he said that, 'He's fucking setting me up'." Do you see that there? A. Yes. Q. When you conclude that answer with "and then I believe", does that indicate you're not sure whether he used those words? A. I wasn't 100% sure he used those words, in that I know he said them, I just wasn't sure where in that conversation he said them. Q. This was in, I take it, the courtroom, whilst the Court was still sitting; is that correct? A. Yes. We were standing behind the dock, so, theoretically, the judge couldn't have seen us because of the big wooden dock in the middle of the room, and we were just off to the right‑hand side of it. Q. You were therefore whispering, seeing as Court was in session? A. Correct. And we also had the people in relation to the trial in the public gallery behind us. Q. When you say, towards the bottom of that answer, "I thought he said, 'Is he checking up on me,' or something to that effect", does that indicate you're not sure what words Mr Paulson used? A. Possibly. I know he said that he thought he was being checked up on, or being checked on, and then he replied ‑ I said, "No", like, "we're not checking up. We just need to know the date", and he said something along the lines of, "He's fucking setting me up". Q. I want to suggest to you that he didn't use the eff word. A. He did. Q. Do you agree, though, that, by using the term "I believe", you're not sure of the words Mr Paulson used? A. In that ‑ in the way it's written, yes. Q. Was anyone else present when Mr Paulson said those words? A. No. 1. In relation to allegation 20, the following exchange occurred during cross-examination: Q. I want to suggest to you that Mr Paulson has never used the eff word in the presence of jury panels. A. He did, the day that I was there, and, yes, he was sweating profusely, like, as in it was, like, running down his face. Q. I want to suggest to you that all he said was, "It's too hot in here", and then he left and then he came back a few minutes later. A. He didn't ever come back. Q. He didn't come back? A. No. I done the whole panel myself. 1. In relation to allegation 21, the following exchange occurred during cross-examination: Q. You told Ms Nix that Mr Paulson, prior to you being interviewed by her, had said to you, "Have you spoken about me?" and you replied, "No", do you recall telling Ms Nix that? A. Yes. Q. Can I suggest to you that that did not happen? A. Yes, in the Court Officer room. He asked me had I spoken to anyone, and my name was on a document. Q. Are you sure that, if he said those words, it related to the investigation? A. No, I didn't know what it related to, to be honest. Submissions of the applicant 1. Counsel for the applicant commenced his final address to the Commission as follows: RYAN: Commissioner, firstly, as a group of allegations that have been put against the applicant in these proceedings, generally, in my submission, most of them rank amongst the most trivial and trifling allegations that the Commission is likely to hear. Some of the allegations are duplicitous. Some are moderately serious. Most are designed (denied) and those that are admitted were dealt with at the time. By the time most, if not all of the contested allegations are cast aside as unproven, the Commission will have little difficulty, in my respectful submission, in finding that the applicant's dismissal was unfair. 1. Counsel the proceeded to criticise some of the witnesses called to give evidence for the Department. Ms Nix was said to be a "hopeless historian" who "could barely recall anything about her investigation report from two and a half years ago or how she compiled to that report". 2. Ms Cannell was also criticised for attempting to win the Department's case from the witness box. 3. Counsel noted that Mr Jeanes and Ms Morrow, who were involved in a number of the allegations against the applicant, did not give evidence in the proceedings. Counsel submitted that their allegations must fall away. Criticism was also made of the evidence given by Mr Lints, Mr Hendrickse, and Ms Esler. 4. With respect to Ms Nix's reliance on "corroborating evidence", counsel submitted as follows: In terms of the Nix report, in my submission, it is a horribly flawed report. The evidence showed that Ms Nix had little grasp of what corroboration actually is. She substantiated many allegations based on what she believed were incidents that were corroborated by others, when, in fact, we know that those other people were not in attendance when many of these alleged incidents are said to have occurred. She simply took a group of co‑workers who were dissatisfied with the applicant, used all their stories to bound them up altogether and substantiated allegations that they made, in my submission. 1. Ms Nix was also criticised for refusing to interview a number of people put forward by the applicant who would speak about his performance and his conduct in the workplace. Counsel submitted as follows: In short, in my submission, Ms Nix, during the investigation process, lost her objectivity and, in fact, became an advocate for the respondent. She simply accepted what disgruntled workers had to say. She made no inquiries of those who might have spoken in favour of Mr Paulson. There is a little or no evidence of what inquiries she made about the training he may have received, the mentoring he may have received or should have received or any other guidance or assistance that he may have received or should have received. As the Commission saw how hopeless Ms Nix was at times at recalling events relating to her investigation from two and a half years ago, she had very little sympathy for Mr Paulson, despite the fact that she was asking him about incidents from five years ago. That, in itself, demonstrates the unfairness that Mr Paulson was subjected to during the investigation process. 1. Counsel then presented a detailed analysis of each allegation and concluded as follows: What the Commission is left with, in my submission, are the two admissions relate to go Broadmeadow Children's Court, leaving his radio on a table a few times, using the word "dog" in relation to Mr Andrews, inaccurate flex sheets and other administrative tasks and the engaging in the secondary employment. Together those admitted allegations form a dated list of trivial to minor incidents that in no way justified the applicant's dismissal. All of them have been dealt with and were dragged up again in 2014. In my submission, the Commission will conclude that the dismissal was harsh; that the Commission will take into account the absence of evidence from key witnesses; that the Commission will take into account the lack of evidence relating to any adequate training, support or performance management of Mr Paulson. My ultimate submission, the dismissal was clearly harsh and unjust. It was unjust from the fact that from the procedure that was adopted from proceeding almost immediately to disciplinary action to the investigation and then to the dismissal that flowed from the investigation, in my submission, was unjust. Mr Paulson was confronted with a shopping list of grievances that he was asked to explain at a time when he was clearly labouring under some sort of stress or anxiety or feelings of persecution. A number of witnesses noted how defensive he was at times which, in my submission, demonstrated the sort of stressors he was experiencing throughout 2014. In my submission, that was plainly unfair to confront him with such dated allegations and then seeking to get explanations from him about them. The Commission will also note that these allegations, from mainly 2013, 2014, with some dating all the way back, albeit unsubstantiated allegations in 2009, were set against the backdrop of an employee who actually commenced work with the Department all the way back in 2000 and who occupied a number of different roles within the Department before being made a Sheriff's Officer. Despite the claims of Ms Cannell, in my submission, this employee could be reinstated. He should be remunerated, in my submission, and unless there's anything further, those are my submissions. Submissions of the Department 1. Counsel for the Department traced the history of the applicant's employment with the Department and the difficulties that Ms Cannell, and a variety of the applicant's supervisors, had experienced in dealing with him since mid 2010. Counsel made the following submission: If I can just take the Commission to the prelude to the commencement of the formal disciplinary process, the evidence shows that, as the applicant's employment progressed, and this is the evidence of Cindy Cannell, that there was a significant number of relationship conflicts, especially with each of the officers in charge, and performance issues of various seriousness, not all of the same level, that's accepted. Some were at the most serious level and others less so, but we submit that the cumulative effect of the misconduct that will be established in the case, even relying on the admissions of the applicant, are sufficient to justify the dismissal. 1. Counsel then analysed the evidence relating to a number of the specific allegations and disputed the characterisation of a number of them by counsel for the applicant as "trivial". 2. Counsel rejected the applicant's criticisms of Ms Nix and the Report. Counsel relied on the unchallenged evidence of Mr Wademan as to the difficulties he experienced in managing the applicant as well as the evidence of Ms Cannell concerning the impracticability of reinstatement of the applicant. 3. Counsel also canvassed the evidence given by Mr Lints, Mr Andrews and Ms Esler and submitted that the Commission should accept their evidence. Counsel concluded his submissions on behalf of the Department as follows: The Commission ought, we submit, consider and make finding as to whether some or all of the incidents of misconduct were established or certainly you'll find some were, because there are admissions. Then dependent on your findings of misconduct, proceed to determine whether the dismissal was harsh, unreasonable or unjust. In our submission, having regard to the evidence relating to the procedure and its compliance with s 69 of the Government Sector Employment Act and the supporting rules, and the findings that there is misconduct which would enliven the powers of the decision maker within the department of Mr Talbot to impose a disciplinary action under s 69 subs (4), then the Commission ought fairly readily, in my submission, determine that the dismissal was neither unreasonable, nor unjust. After making those findings, the Commission would still be required to determine if the dismissal was harsh, as that term is understood in the statute and applying the principles in Catalan Food v Fraser No 2, the case I know you are well familiar with, the appropriate approach is set out. In doing so the Commission ought weigh the severity and character of the misconduct, so that, in our submission means, once you've determined the misconduct, what is the severity and carriage of that misconduct and weigh it against the personal circumstances and mitigating factors as established in the evidence and there is very little evidence in that regard. The Commission ought then find that the dismissal, in our submission was not unfair and dismiss the application. In the alternative, if the Commission finds contrary to the respondent's primary submission that the dismissal was other harsh or unreasonable or unjust, the respondent submits the Commission ought, nevertheless, find that reinstatement or re‑employment of the applicant to the Sheriff's Office near in Newcastle or in the northern region would be impractical, given the totality of the evidence and, specifically, the evidence of Ms Cannell. If appropriate, whilst contrary to our primary submissions, monthly compensation would be preferable to the respondent to reinstatement or re‑employment. Unless there's any Commissioner, those are my submissions. Determination with respect to the misconduct allegations 1. I deal in order below with each of the allegations of misconduct against the applicant, which were found by Ms Nix in the Report, and subsequently by Mr Talbot, to have been substantiated. In doing so, I note that the Department bears the onus of proving its allegations of misconduct on the part of the applicant (Pastrycooks, Biscuit Makers & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 83; Franklins Ltd v Webb (1997) 72 IR 257 at 261 and Perfection Dairies Pty Ltd v Finn (2006) 151 IR 197 at [73]). The standard of proof is the balance of probabilities as framed by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, where his Honour stated: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. The allegations are set out in the same form as they were written by Ms Nix in the Findings Summary, which differs in some minor respects from the form in which they were set out in the letter from Ms Nix to the applicant of 9 May 2014 and reproduced at paragraph 12 above. 1. Breaches of security at Newcastle Court Complex, Toronto Court Complex and Broadmeadow Children's Court: 1b. On 12 December 2013, without consent or authority, Mr Paulson approached Sheriff's Officer Jacqueline Gladwin and alleged that she had permitted entry of the prohibited item (being a razor blade) into Newcastle Court Complex on 11 December 2013. Mr Paulson then proceeded to question Ms Gladwin as to why she had been permitted to work at the scanners and continue to carry appointments. 1. This allegation was ultimately not pressed by the Department in these proceedings. 1c. At approximately 11.00am on 13 November 2013, Mr Paulson compromised the security of Toronto Court Complex by leaving BMS Private Security Officer, Mr Ewan Lints on his own at the scanners whilst engaging in discussions with an unknown Aboriginal person/s adjacent to the Court Registry. 1. This is one of three allegations which relate to what was referred to in the proceedings as the "Toronto sharps incident". The applicant has admitted that he moved approximately five to ten metres away from the scanners to speak with a young Koori woman whom he named. He claimed that no one was coming through at that time and, if someone had come through, he would have returned. In Mr Lints' statement of 19 November 2013, he confirmed that the applicant was five to ten metres away from the scanners and returned to the scanning point when he became aware of Mr Lints' attempts to signal him. In cross-examination, Mr Lints stated that it took five to ten seconds for the applicant to walk back to the scanners. There is nothing before the Commission to indicate that senior management regarded a situation where a Sheriff's Officer was temporarily five to ten metres away from the scanners, whilst a private security guard was present at the scanners, as compromising the security of the court complex, or that Sheriff's Officers and, in particular, the applicant had been so instructed. 2. At the time of this incident, Ms Morrow was the Acting Sergeant, Toronto Sheriff's Office. In a written statement made by Ms Morrow on 16 April 2014, she stated: On 13 November 2014 (sic, 2013), I noted that the Private Security Officer had been on their own at the scanners for approximately 10 minutes. I attended the scanners and noted PAULSON was in the front courtyard with a number of Aboriginal males. I asked the Private Security Officer if he felt comfortable with staying on his own and he advised he was ok. This was pressing on me for two reasons, firstly PAULSON refuses to work "one-out", he refuses to work on his own, either in the field or on the scanners but will constantly leave others on their own. Secondly, leaving his post appeared to be becoming a habit. There is nothing in the evidence to indicate that Ms Morrow confronted the applicant on this occasion and advised him that what he was doing was compromising the security of the Toronto Court Complex and constituted misconduct. 1. In a written statement dated 9 April 2014 prepared for Ms Nix, Mr Jeanes stated as follows: On 12 August 2013 there was an incident with some youths damaging property at Broadmeadow Children's Court. HENDRICKSE attempted to call PAULSON, numerous times on the radio, for assistance and PAULSON didn't answer. PAULSON was supposed to be at the scanners. He was away from his post talking to a member of the public. He should not leave his post. This was the incident which gave rise to allegations 3g and 4c against the applicant. In his statement, Mr Jeanes does not refer to the fact that, initially, it was Mr Hendrickse who called the applicant away from his post at the scanners to attend the male amenities area. It does not appear that Mr Hendrickse was disciplined by Mr Jeanes for calling the applicant away from his post at the scanners. 1. Further to this, part of the lead up to the incident with Mr Andrews on 22 August 2013, which gave rise to allegation 3f, was the applicant's refusal of Mr Andrews' request to leave the scanners at Newcastle Courthouse to go upstairs and serve a female person with some family law papers. Mr Andrews reported this verbally to Mr Jeanes on 27 August 2013, and in an email on the following day. This was noted in Mr Jeanes written statement of 9 April 2014 as follows: ANDREWS asked PAULSON to assist a lady wanting family law papers served. PAULSON refused. ANDREWS told PAULSON it would only take 15 seconds. PAULSON refused again. ANDREWS asked PAULSON to assist the lady 3 times. PAULSON then said ANDREWS was bullying him. 1. It does not appear that Mr Andrews was disciplined for compromising court security by asking the applicant to leave his post at the scanners. 2. I am not satisfied that the actions of the applicant at the Toronto Court Complex on 13 November 2013, being temporarily five to ten metres away from the scanners whilst talking to a member of the public, constitute misconduct. 1d. Having been advised by BMS Private Security Officer, Mr Ewan Lints of an unknown male person attempting to gain entry to Toronto Court Complex with a prohibited item (being a razor blade) concealed in his wallet, Mr Paulson knowingly permitted the stated unknown male person with the prohibited item (being a razor blade) on his person, entry to Toronto Local Court on 13 November 2013. 1. The applicant has denied this allegation. He recalled that a female person, approximately 55-60 years of age, had a wallet go through the scanners which had an emblem on it which, Mr Lints thought, was a sharp object but which was, in fact, a surf emblem attached to the wallet which looked like a razor blade. 2. In Mr Lints' written statement of 19 November 2013, he claimed that, at approximately 11.00am on 13 November 2013, two male persons, approximately 20-25 years of age, entered Toronto Court Complex and placed their belongings in a tray for scanning. Mr Lints noticed what appeared to be a razor blade secreted in a wallet belonging to one of the male persons. 3. There are some unsatisfactory aspects relating to the evidence presented by the Department concerning this allegation. In contemporaneous notes made by Ms Morrow of the events of 13 November 2013, and provided to Ms Nix as an attachment to her written statement of 16 April 2014, there is no mention of being advised by Mr Lints about the applicant allowing a male person to take a razor blade into the court complex. This is despite the fact that Ms Morrow recorded that she had a conversation with Ms Lints after the time of this alleged incident, being approximately 11.00am (see paragraph 66 above). However, under cross-examination, Mr Lints maintained that he did tell Ms Morrow about the razor blade incident at about 12.20pm on the day it happened, 13 November 2013. He further claimed that Ms Morrow did not ask him to make an incident report on that day, but did ask him to make an incident report six days later on 19 November 2013. 4. On 20 November 2013, Ms Hall wrote to the applicant and referred to three security related incidents that had occurred over the past 12 months, including the incident at the Toronto Court Complex on 13 November 2013. Ms Hall advised the applicant that she was revoking his appointment as a security officer for the purposes of the Court Security Act 2005. 5. According to a document annexed to the Report, on 3 December 2013, Sheriff's Officer Anthony Kildey, Chief Inspector Bayden Jeanes and Senior Registrar Sue Jenner attended the Toronto Court Complex and retrieved an image from the x-ray machine. However, when he was being interviewed by Ms Nix on 12 May 2014, the applicant disputed that this image, which he was shown and which was tendered into evidence, was what he saw on the scanners when called over by Mr Lints on 13 November 2013. He also claimed that, when an image is saved from the x-ray machine, it has the time and date printed on it. Neither Mr Kildey, Mr Jeanes nor Ms Jenner was called as a witness in these proceedings, which would have enabled the applicant to test their evidence as to how the image of the razor blade in the wallet was retrieved. 6. The applicant claimed that CCTV footage of this incident would have confirmed his version of what occurred. Ms Cannell gave the following evidence: Q. You don't know how long the CCTV at Toronto is recorded for? A. No. Generally, most of the equipment could be anything from 14 to 21 days. In some of the smaller locations, it could be longer because it's not used ‑ it's not activated as much, but I don't know the exact particulars of Toronto. CCTV footage relating to a number of the other allegations against the applicant was retrieved and provided to Ms Nix as part of her investigation. No satisfactory explanation was given to the Commission as to why the CCTV footage of the scanners at the Toronto Court Complex for 13 November 2013 was not viewed and retained, given that Ms Morrow was made aware of the incident by 18 November, at the latest. Had it been, it may have been possible to determine whether it is the account of the applicant, or that of Mr Lints, which should be accepted as to what, in fact, did occur. 1. The Commission is left with the competing versions of Mr Lints and the applicant as to what actually happened in relation to this incident. I am not satisfied that the Department has proven this allegation to the required standard of proof, being the balance of probabilities. 1e. In permitting the unknown male person in possession of the prohibited item (being a razor blade) entry to Toronto Local Court on 13 November 2013, Mr Paulson made a statement, with words to the effect of, "Don't worry about it just make sure your wallet stays in your pocket". 1. For the reasons stated in relation to allegation 1d, I am not satisfied that the Department has proven this allegation to the required standard of proof, being the balance of probabilities. 1g. On 15 April 2013, Mr Paulson failed to take appropriate measures to adequately secure Broadmeadow Children's Court overnight by not engaging locking mechanisms of the front entrance doors. 1. The applicant admitted his failure in relation to this allegation at the time of the incident. He stated in an email to Ms Cannell on 16 April 2013, "I can only say that I am very sorry for an inconvenience to the department and staff members". In an email to the applicant dated 10 May 2013, Ms Cannell expressed her disappointment that the applicant had not expressly acknowledged that failure to secure the court premises is a serious matter that places the premises at significant risk of damage, especially since this was the second occasion that this had occurred while it had been the responsibility of the applicant to secure the premises. 2. This incident was not treated as misconduct at the time but, rather, as an instance of unsatisfactory performance on the part of the applicant, albeit a "serious matter" as far as Ms Cannell was concerned. The incident was referred to in the letter from Ms Hall to the applicant dated 20 November 2013, following the "Toronto sharps incident" on 13 November 2013, which revoked the applicant's appointment as a security officer for the purposes of the Court Security Act 2005. I infer from this that the incident at the Broadmeadow Children's Court on 15 April 2013, which gave rise to this allegation, together with the previous incident on 27 September 2012 which gave rise to allegation 1h, was not, without more, seen as sufficient justification for the revocation of the applicant's appointment as a security officer. I regard the applicant's conduct in relation to this allegation as a performance issue rather than misconduct. 1h. On 27 September 2012, Mr Paulson failed to secure Broadmeadow Children's Court overnight in that he did not engage locking mechanisms for the front entrance doors. 1. The applicant has admitted this allegation. He claimed that he was getting used to the new security system at that time and he forgot to manually lock the door with a key. He claimed that the old system would automatically lock the exit doors at 4.00pm. 2. In an email to the applicant from Mr Jeanes dated 28 September 2012, the applicant was asked to provide a report on the lock up procedures that were undertaken by him on the previous day (wrongly stated as Thursday 27 October 2012). Mr Jeanes required the report by 9 October 2012. 3. In his report, the applicant stated that he had become distracted by the presence of his daughter and a phone call from a family member, and thought he had secured the front entrance. He stated that he was "truly mortified and stressed" about the situation and had adopted a new process to ensure that the complex was secured at the end of the day. He attached to his report a checklist which he proposed to adapt for this purpose. 4. It does not appear that any further action was taken in relation to this incident at the time, although it was later referred to in the letter from Ms Hall to the applicant dated 20 November 2013 (but incorrectly stated as having occurred on 27 October 2012), following the "Toronto sharps incident" on 13 November 2013, which revoked the applicant's appointment as a security officer for the purposes of the Court Security Act 2005. I infer from this that the incident at the Broadmeadow Children's Court on 27 September 2012 , which gave rise to this allegation, was not seen, by itself, as sufficient justification for the revocation of the applicant's appointment as a security officer. I regard the applicant's conduct in relation to this allegation as a performance issue rather than misconduct. 1i. In the period including, but not limited to, February 2009 and September 2013, Mr Paulson have on occasions, failed to appropriately and adequately secure his appointments. 1. The applicant has denied this allegation and claimed that he was not given appropriate storage for his appointments, despite asking for it on a number of occasions. However, in his interview with Ms Nix on 12 May 2014, the applicant admitted that he had occasionally left his radio in the courtroom or in the meal room at Broadmeadow Children's Court. 2. It appears that Mr Jeanes was made aware of this issue by way of an email from Mr Hendrickse dated 13 August 2013 but, as of 23 August 2013, Ms Cannell was dealing with this issue, and the other incidents involving the applicant prior to that date, as "continued unsatisfactory performance" and was proposing to refer these matters to Ms Hall for the purpose of implementing remedial action, rather than disciplinary action at that time (see paragraph 10 above). 3. I regard the applicant's conduct in relation to this allegation as a performance issue rather than misconduct. 2 Mr Paulson's actions, conduct and behaviour in failing to secure Newcastle Court Complex, Toronto Court Complex and Broadmeadow Children's Court had the potential to threaten and jeopardise the health, safety and welfare of his colleagues, judicial officers and members of the general public by potentially exposing them to unnecessary risk and harm. 1. This is not a new allegation but, rather, a reformulation of allegation 1, comprising specific allegations 1a-1i. 3 Investigate and determine whether in the period since at least 12 August 2013, Mr Paulson have used inappropriate and offensive language in the workplace, including but, not limited to, the following incidents: 3a During a conversation with Court Officer Ms Emma Esler on 26 November 2013, Mr Paulson made comments concerning Mr Jeanes to the effect of, "he is fucking setting me up". 1. The applicant has denied this allegation. 2. Ms Esler was asked about this incident in her interview with Ms Nix on 9 April 2014. She recounted a conversation she had with the applicant in court on 26 November 2013 in which the applicant expressed his concern that Mr Jeanes was checking up on him. She said to Ms Nix "And then I believe that he said that 'he's fucking setting me up'". 3. Under cross-examination in these proceedings, Ms Esler stated "I wasn't 100% sure he used those words, in that I know that he said them, I just wasn't sure where in that conversation he said them". She said they were standing behind the dock so the judge couldn't have seen them and they were whispering. Ms Esler was adamant that the applicant used the "eff word". 4. In Findings Summary section of the Report, Ms Nix stated that "Mr Lints, Mr Jeanes and Mr Kildey have all provided corroborating evidence of Mr Paulson displaying similar behaviour". In final submissions, counsel for the Department referred to this as "similar fact evidence". Neither Mr Jeanes nor Mr Kildey gave evidence in these proceedings. Contrary to what Ms Nix stated in the Findings Summary concerning "corroborating evidence" from Mr Lints, during his interview with Ms Nix on 9 April 2014, the following exchange between Ms Nix and Mr Lints occurred: Q. All right. I'll just make sure I haven't forgotten anything. Have you ever witnessed or observed, or I guess been a party to, hearing Mr Paulson use inappropriate language in the workplace? A. No. Q. No? Okay. Or offensive language? A. I've only worked with him a few times out at Toronto. Q. Have you ever seen him demonstrate a pattern or any type of inappropriate conduct or behaviour, such as rude, disrespectful or aggressive or abrupt manner? A. No. 1. Given the conflicting accounts of the applicant and Ms Esler concerning this incident, I am not satisfied that the Department has proven this allegation to the required standard of proof, being the balance of probabilities. 2. In any event, Ms Esler has not stated that she regarded the applicant's language during this incident as either inappropriate or offensive. Even if, as Ms Esler has claimed, the applicant did whisper the "eff word" during this conversation, this hardly amounts to misconduct which would warrant disciplinary action, let alone dismissal. 3b On, or about 14 November 2013, Mr Paulson was overhead by Acting Sergeant Leah Morrow to have loudly made a comment with words to the effect of, "If Officer Hendrickse has any issues considering the grievance, we can take it out the front", during a telephone conversation in the Registry of Toronto Court Complex. 1. The applicant has denied this allegation. 2. The comment was recorded in a written statement made by Ms Morrow on 16 April 2014, but it is not referred to in Ms Morrow's contemporaneous which she made covering the period 5-18 November 2013 and which were annexed to her written statement. Ms Morrow was not called as a witness in these proceedings. In any event, Ms Morrow makes no reference to whom the comment was made or to what she understood the comment to mean or to her being offended by the comment. 3. In the Findings Summary, Ms Nix stated that "Mr Jeanes, Ms Barry, Mr Kildey, Mr Andrews and Ms Morrow have all provided corroborating evidence of Mr Paulson displaying similar behaviour". Apart from Mr Andrews, none of these people was called as a witness in these proceedings. Nothing in the record of interview between Ms Nix and Mr Andrews of 7 April 2014, or in the evidence given by him in these proceedings, constitutes "corroborating evidence" of this allegation. I have been unable to find anything in the Report, attributed to any of the other persons referred to by Ms Nix, which could be fairly described as "corroborating evidence" of the applicant displaying similar behaviour. It is difficult to see how Ms Morrow could provide "corroborating evidence" of the matters she alleges in her own statement. 4. Given the applicant's denial concerning this incident, and the lack of any probative evidence to support the allegation, I am not satisfied that the Department has proven this allegation to the required standard of proof, being the balance of probabilities. Further, I am not satisfied that, even if Ms Morrow overheard the applicant make this comment to some unknown person, this constituted misconduct on the part of the applicant 3c During the course of a telephone conversation at Toronto Court Complex on, or about 14 November 2013, Mr Paulson was overheard by Acting Sergeant Leah Morrow to have loudly made a comment with words to the effect of, "It is the fucking white man's way or no way at all and I've had enough". 1. The applicant has denied this allegation. 2. The comment was recorded in a written statement made by Ms Morrow on 16 April 2014, but it is not referred to in Ms Morrow's contemporaneous which she made covering the period 5-18 November 2013 and which were annexed to her written statement. Ms Morrow was not called as a witness in these proceedings. In her written statement, Ms Morrow did note as follows: I take a very personal dislike to this comment and am offended that this is the generalisation. 1. In the Findings Summary, Ms Nix stated that "Mr Jeanes, Ms Barry, Mr Kildey, Mr Andrews and Ms Morrow have all provided corroborating evidence of Mr Paulson displaying similar behaviour". Apart from Mr Andrews, none of these people was called as a witness in these proceedings. The closest one can find to "corroborating evidence" in the record of interview between Ms Nix and Mr Andrews of 7 April 2014, is reference to a comment allegedly made by the applicant to the effect "we need to go to the Discrimination Board, I've been discriminated against". However, this comment, if made, does not, in truth, corroborate this allegation. It is simply indicative of an apprehension on the part of the applicant that he was being discriminated against. The issue of discrimination was not touched upon in the evidence given by Mr Andrews in these proceedings. As with allegation 3b, I have been unable to find anything in the Report, attributed to any of the other persons referred to by Ms Nix, which could be fairly described as "corroborating evidence" of the applicant displaying similar behaviour. Again, it is difficult to see how Ms Morrow could provide "corroborating evidence" of the matters she alleges in her own statement. 2. Given the applicant's denial concerning this incident and the lack of any probative evidence to support the allegation, I am not satisfied that the Department has proven this allegation to the required standard of proof, being the balance of probabilities. 3d On, or about 30 September 2013, Mr Paulson approached Sheriff's Officer Mr Steven Andrews and made a statement with words to the effect of, "Andrews, you nothing but a dog". 1. The applicant admitted that he made this statement to Mr Andrews (see paragraph 26 above). 2. In his interview with Ms Nix on 12 May 2014, the applicant claimed that he made this statement because Mr Andrews had complained to Mr Jeanes that the applicant had refused Mr Andrews' request that he serve family law papers on a member of the public. 3. However, there is serious doubt as to precisely what the applicant said to Mr Andrews on this occasion. Mr Andrews himself was unclear as to whether the applicant said "Andrews, you're nothing but a dog" or "You're dogging me" (see paragraph 78 above). 4. Regardless of the applicant's explanation, either of these statements, if made by him to Mr Andrews, would constitute misconduct. 3e On 22 September 2013, during a conversation with Sheriff's Officer Mr Steven Andrews at Broadmeadow Children's Court scanners, Mr Paulson made derogative and offensive comments about unknown staff and management of the Department, including reference to an officer using a word to the effect, "cunt". 1. Only the applicant and Mr Andrews were parties to this conversation which, according to Mr Andrews, occurred at Newcastle Courthouse, not at Broadmeadow Children's Court. The applicant has denied this allegation. 2. In his interview with Ms Nix on 7 April 2014, Mr Andrews stated that the applicant's use of the word "cunt" was in reference to Ms Cannell, Mr Jeanes or Mr Hendrickse. However, under cross-examination in these proceedings, Mr Andrews speculated that it may have been a reference to Mr Hendrickse on the basis that the term "out there" was a reference to Broadmeadow Children's Court where Mr Hendrickse was working at that time. It appears that Mr Andrews may have been confusing this incident with the incident of 22 August 2013, which gave rise to allegation 3f. It is in that allegation that the reference to "that cunt out there" appears. 3. In the Findings Summary, Ms Nix stated that "Mr Jeanes, Ms Barry, Mr Kildey, Mr Andrews, Ms Morrow and Mr Hendrickse have all provided corroborating evidence of Mr Paulson displaying similar behaviour". 4. Mr Jeanes, Ms Barry, Mr Kildey and Ms Morrow did not give evidence in these proceedings. Mr Andrews cannot provide "corroborating evidence" to support his own allegation. 5. There is nothing in the evidence given by Mr Hendrickse which could be properly regarded as "corroborating evidence" of this allegation. The closest one can find is that in his Security Incident Report of 13 August 2013, Mr Hendrickse reported that the applicant swore when saying to him, "you fucking left me there alone, what was I supposed to do, it's a fucking OH&S issue" (allegation 3g). The applicant has denied that he made this statement to Mr Hendrickse. However, even if Mr Hendrickse' evidence as to this statement by the applicant is accepted, it does not corroborate Mr Andrew's evidence that, some six weeks later, the applicant referred to an unnamed member of staff as a "cunt". 6. Given the applicant's denial concerning this incident, and the lack of any corroborative evidence to support Mr Andrews' evidence about this allegation, I am not satisfied that the Department has proven this allegation to the required standard of proof, being the balance of probabilities. 3f Whilst conversing with Sheriff's Officer Mr Steven Andrews at the Broadmeadow Children's Court scanners on 22 August 2013, Mr Paulson made a comment using words to the effect of, "watch it Stevo, you don't know what's going on and if I am asked, I will flatly deny it. They're going down, especially that cunt out there. There's going to be an investigation from QBE". 1. Only the applicant and Mr Andrews were parties to this conversation which, according to Mr Andrews, occurred at Newcastle Courthouse, not at Broadmeadow Children's Court. The applicant has denied this allegation. 2. In the Findings Summary, Ms Nix stated that "Mr Jeanes, Ms Barry, Mr Kildey, Mr Andrews, Ms Morrow and Mr Hendrickse have all provided corroborating evidence of Mr Paulson displaying similar behaviour". 3. For reasons similar to those set out above in relation to allegation 3e, I am not satisfied that the Department has proven this allegation to the required standard of proof, being the balance of probabilities. 3g Following the incident with Sheriff's Officer Mr Craig Hendrickse at Broadmeadow Children's Court on, or about 12 August 2013, Mr Paulson made a comment with words to the effect of, "you fucking left me there alone, what was I supposed to do, it's a fucking OHS issue". 1. On 13 August 2013, Mr Hendrickse completed a Security Incident Report following the discovery of graffiti in the male toilets at Broadmeadow Children's Court the previous day. During the incident, Mr Hendrickse asked the applicant to attend the area where a group of youths were located and to try and keep them from leaving the area. Whilst Mr Hendrickse was calling the police, he noticed on the monitors in the registry that the youths were exiting the building. Mr Hendrickse claimed that he tried three times to make radio contact with the applicant without success. When Mr Hendrickse returned to the where the applicant was located, he asked the applicant "why didn't you get their details before they left?". According to Mr Hendrickse, the applicant replied "you fucking left me there alone, what was I supposed to do, it's a fucking OH&S issue". This conversation was recorded by Mr Hendrickse in his Security Incident Report. 2. In his own Security Incident Report dated 19 August 2013, the applicant recorded the conversation with Mr Hendrickse in the following terms: Hendrickse: Craig this is your responsibility if I ask you to contain them do it, Applicant: I said, the word to the effect, what up mate you left me with 8 juvenile that are attending court. Hendrickse: Mate you have a problem working one out then you speak to the boss. Applicant: Craig do what you need to do mate you put me in a dangerous situation, Hendrickse: I am telling you I will be informing the boss! , I am reporting this to the boss! , It will be going to the regional manager then stormed off to the office. 1. It does not appear that this incident was raised by management as a misconduct issue with the applicant at the time. However, in a written statement dated 9 April 2014 prepared for Ms Nix, Mr Jeanes stated as follows: On 12 August 2013 there was an incident with some youths damaging property at Broadmeadow Children's Court. HENDRICKSE attempted to call PAULSON, numerous times on the radio, for assistance and PAULSON didn't answer. PAULSON was supposed to be at the scanners. He was away from his post talking to a member of the public. He should not leave his post. Mr Jeanes does not refer to the fact that it was Mr Hendrickse who called the applicant to attend the area away from his post at the scanners. 1. Ms Nix met with Mr Hendrickse on 15 April 2014 and he confirmed the contents of his Security Incident Report. 2. In his interview with Ms Nix on 12 May 2014, the applicant stated, in relation to this allegation: No, I don't recall saying that to him. See, that would have been – that would have record(?). If that was the day that the thing I would have said to him "mate, what are you bloody doing, you left me alone". And later: …I said to him "Craig, what the hell was that, mate, you left me out there with OH&S issue with all them kids". 1. The essential difference between the two versions of the conversation which is the subject of this misconduct allegation is that, according to Mr Hendrickse, the applicant used the expletive "fucking" twice, whereas, according to the applicant, he used the expletive "bloody" once. 2. In the Findings Summary, Ms Nix stated that "Mr Jeanes, Ms Barry, Mr Kildey, Mr Andrews, Ms Morrow and Mr Hendrickse have all provided corroborating evidence of Mr Paulson displaying similar behaviour". Mr Jeanes, Ms Barry, Mr Kildey and Ms Morrow were not called to give evidence. 3. There was nothing in the evidence of Mr Andrews which could be regarded as corroborative of Mr Hendrickse's version of the conversation, as opposed to that of the applicant. Mr Hendrickse cannot corroborate his own version of the conversation. 4. Mr Hendrickse was called as a witness in these proceedings and was cross-examined as follows: Q. Ms Nix made a note where you confirmed a version to her where, after that incident with the youths, you allegedly queried Mr Paulson about why he let the youths go and you quote him as saying, "You fucking left me there alone. What was I supposed to do? It's a fucking OHS issue". Are you aware of that allegation? A. I'm not aware of that allegation but I think it is in the ‑ in one of these reports that I've written. Q. Could you have a look through those reports now and see if you can find that allegation in the incident report you prepared? A. Yes. Would you like me to read it now? Q. If you could point me to the paragraph. A. Yes. It's one, two, three, four from the top ‑ from the bottom, on page 163. Q. I want to suggest to you that at no stage did Craig swear to you in response to your query. What do you say to that? A. If it's there, then, it would have happened. Q. But you have no distinct memory of it? A. It's a long time. Q. I want to suggest to you that what was actually said between yourself and Officer Paulson after that incident was ‑ you said, "Craig, this is your responsibility. If I ask you to contain them, do it", do you remember saying that? A. No. Q. You need to give an audible answer, just for the recording equipment. A. No. Q. You don't remember saying that? A. No. Q. Mr Paulson said, in response to that, "I said the word to the effect, 'What up, mate? You left me with eight juveniles that are attending the Court'." Do you remember Mr Paulson saying that? A. No. Q. Do you remember responding, "Mate, you have a problem working one out, then you speak to the boss"? Do you remember saying that to Mr Paulson? A. No. Q. Mr Paulson replied, "Craig, do what you need to do, mate. You put me in a dangerous situation", do you remember Mr Paulson saying that? A. No. Q. Then you responded, "I am telling you, I'll be informing the boss, I am reporting this to the boss. It will be going to the regional manager", and then you left, do you remember saying those words? A. No. Q. When you say you don't remember, are you saying that you don't remember or you did not say those words? A. I don't remember. 1. Mr Hendrickse did not give evidence that he found the applicant's alleged use of the word "fucking" to be inappropriate and offensive. 2. Ten days after the incident, which gave rise to this misconduct allegation, was reported to management by Mr Hendrickse, Ms Cannell was still proposing to deal with the applicant's "continued unsatisfactory performance" and was "considering referring these matters to the Sheriff for the purpose of implementing remedial action", rather than treating the incident as misconduct on the part of the applicant. 3. Given the applicant's denial concerning this incident and the lack of any corroborative evidence to support Mr Hendrickse's version of it, I am not satisfied that the Department has proven this allegation to the required standard of proof, being the balance of probabilities. 4. In any event, even if the conversation did occur as reported by Mr Hendrickse, this would not, in all the circumstances, have constituted misconduct on the part of the applicant. 5. On 4 May 2017, the Department filed with the Commission a document entitled "Summary of Misconduct Evidence by Respondent". Annexure A to that document was headed "Corroborative (Similar Fact or Pattern of Behaviour) Evidence of Inappropriate Language in Workplace" (the "Corroborative Evidence Submission"). That document set out references in the evidence to the applicant's use of certain expletives in conversations with colleagues as set out below: - "fucking" or "fucked" or the "eff" word: Ms Esler – four occasions; Mr Andrews – four occasions; Mr Hendrickse – one occasion; Ms Morrow – two occasions; Mr Kildey – two occasions as in "fucking bullshit". - the "C" word: Mr Andrews – one occasion The applicant has denied using this language. Of the above named persons only Ms Esler, Mr Andrews and Mr Hendrickse gave evidence in these proceedings. In no case is it alleged that the applicant swore at the other party to the conversation. Even if the evidence of these three witnesses were accepted, none of them gave evidence that they were offended by the applicant's use of language. 1. The Department relies upon its Dignity and Respect Policy. That policy does not, in terms, prohibit swearing in the workplace, especially when the swearing is not directed at a fellow employee. It was not established that the applicant had ever been counselled in relation to the language he used in conversations with his colleagues. 2. For the reasons stated above, I find that, even if the allegations which are based on the applicant's alleged use of swear words in the workplace are sustained, they do not amount to misconduct such as would support the decision to dismiss the applicant. 4 During the period since at least 2 April 2009, Mr Paulson have demonstrated a continual pattern of inappropriate conduct and behaviour, including but, not limited to, the following incidents: 1. This is a general allegation of inappropriate conduct and behaviour on the part of the applicant spanning a period of approximately five years. In support of this allegation, the Department relied on the written statement of Mr Wademan which is referred to at paragraphs 50-53 above and which was admitted into evidence without objection and without the requirement for Mr Wademan to be cross-examined. In particular, the Department relied on paragraph 11 of that statement, which is in these terms: PAULSON can be very difficult to manage. He becomes very defensive and argumentative when asked to complete simple work tasks. He just blows up. It is difficult to see how this expression of opinion by Mr Wademan, without reference to any particular incident, could support a finding of misconduct against the applicant. In his statement, Mr Wademan does refer to issues with the applicant which arose on 25, 26 and 27 February and 14 April 2014, as well as the incident involving Ms Esler which gave rise to allegation 20. Apart from the last mentioned matter, which is dealt with later in these reasons for decision, none of these matters referred to by Mr Wademan formed the basis of any of the misconduct allegations against the applicant. 1. The Department also relied on the incidents involving the applicant which were set out in the document headed "Summary of Performance Issues" which was Attachment 1 to Ms Cannell's memo to Ms Hall of 28 November 2013 and which is referred to at paragraph 56 above. The incidents identified by Ms Cannell in this document are, for the most part, the same incidents which formed the basis of the other allegations of misconduct against the applicant. To give separate consideration to these incidents as matters which also support this general allegation of inappropriate conduct and behaviour on the part of the applicant, would amount to double counting. 2. Finally, the Department, in support of this allegation, relied upon a written statement dated 9 April 2014 prepared by Mr Jeanes for the purpose of the investigation by Ms Nix. This eight page statement, together with 33 annexed documents (totalling 86 pages) also canvassed many of the same incidents which gave rise to other misconduct allegations against the applicant. For the same reason as stated immediately above, to give separate consideration to these incidents as matters which also support this general allegation against the applicant, would amount to double counting. 3. Further, Mr Jeanes was not called as a witness in the proceedings and was not subjected to cross-examination. Consequently, where statements of fact made by Mr Jeanes conflict with statements by the applicant, very little weight can be given to the former. 4a Mr Paulson continually engaged in a rude, disrespectful, aggressive and abrupt manner when conversing with his supervisor, Officer in Charge Mr Bayden Jeanes, with particular reference to discussions conducted on 18 December 2013, 17 October 2013, 14 October 2013 and 6 February 2014 respectively. 1. There are four particular incidents which are said by the Department to support the substantiation of this allegation. I deal with them in chronological order as set out below. The date, 6 February 2014, in this allegation is an error. The correct date for this exchange between Mr Jeanes and the applicant, which was by way of email, is 6 February 2012, as was stated in Ms Nix's letter to the applicant of 9 May 2014, as set out at paragraph 12 above. 6 February 2012 1. This allegation is based on the written statement by Mr Jeanes dated 9 April 2014 and on an email exchange between the applicant and Mr Jeanes which occurred on 6 February 2012. 2. The email exchange on 6 February 2012 commenced with a request from Mr Jeanes to the applicant for some information about what the applicant had recorded on his Motor Vehicle Running Record (MVRR) for an attendance at Raymond Terrace Court on 18 January 2012. The applicant had recorded a difference of 12 kilometres for the distance from Toronto to Raymond Terrace compared to the return trip. The applicant sent the following email to Mr Jeanes: Hi Bayden On the 18th there was traiffic congestion going Wallends way, I then went up the main highway to Raymond Terrace. Bayden I will not attend Raymond Terrace any more could you please make other arrangements. In regards to the mistake, (I am Not Perfect) Sorry Cheer 1. Mr Jeanes' email reply to the applicant admonished him for the inappropriate tone of his email and confirmed his obligation to go to Raymond Terrace as required. Mr Jeanes also reminded the applicant of his obligations when filling out his MVRR. Mr Jeanes stated "Failure to comply with these reasonable requests will result in Performance Management". According to the memo from Ms Cannell to Ms Hall of 28 November 2013, the applicant replied to Mr Jeanes' email saying "I was just being short and sweet (Sorry if I offended you) I know that you are just doing ya job". 2. When questioned about this email exchange during his interview with Ms Nix on 12 May 2014, the applicant responded as follows: This is – that is a whole lot of rubbish. What happened then, right, is I – he asked me to go and do Raymond Terrace like we normally do. I picked the car up at Toronto, right. I've jumped in the car. I've went and taken away to Raymond Terrace. There was an accident, so I did a detour which was like 12 ks out or something and I – and then I come back. But in saying that, Nicole, there was an OIC acting in Toronto that was – there was a car with 300 ks out. What happened to that person? This is what I don't understand. That's 12 ks out and I explained myself, I did it in writing. And later, the following exchange occurred: Q. Then you've got here "Bayden, I will not attend Raymond Terrace any more, could you please make other arrangements"? A. Well, that's what I said to him, only because he's – he keeps on – he was – this is when he started getting right into me, this is the start of everything. He just keeps on – on my back for no reason. I always attended Raymond Terrace and I do – and like I said I know the staff over there, I do my job and I come back. Why would I – why would I – what's – like 12 kilometres, talk to me when it's like 30 ks over or something, because all I did was did alternative route to – quickest alternative route to Raymond Terrace because of an accident on that day. Q. All right. I guess if there is – whether it's 12 kilometres or – A. Yeah, I know, but like I said – oh. Q. Okay. Now he's come back to you and said that, you know, he's entitled to ask you those questions and that you don't have the luxury to pick and choose where you're going to work. Have you worked at Raymond Terrace since then? A. No. Q. Have you been asked to? A. No. 1. To the extent that the tone of the applicant's email to Mr Jeanes on 6 February 2012 was "inappropriate", and constituted misconduct, it was misconduct at the lower end of the scale of seriousness, and was firmly dealt with by Mr Jeanes at the time. It is difficult to see how this incident could be relied upon to support the dismissal of the applicant more than two and a half years later. Unsurprisingly, the applicant was not cross-examined about this incident and it did not loom large in the Department's closing submissions. 2. In the Corroborative Evidence Submission, the Department, in relation to this allegation, made reference to an incident on 6 February 2014 (as opposed to 2012) and cited, in support of this allegation, the record of interview of 17 April 2014 between Ms Nix and Mr Kildey and, in particular, an exchange between Mr Kildey and the applicant about a key. This appears to be an incorrect reference. The incident on 6 February 2014 gave rise to allegation 19 concerning jury room and building keys, and did not involve any interaction between the applicant and Mr Jeanes. 3. When dealing with this allegation in the Findings Summary, Ms Nix made it clear that the relevant exchange was the one conducted by email between Mr Jeanes and the applicant on 6 February 2012, concerning the trip from Toronto to Raymond Terrace and return. However, this part of the Findings Summary has the erroneously dated heading "Details of discussion that occurred on 6 February 2014". 14 October 2013 1. According to Mr Jeanes, the exchange between him and the applicant on 14 October 2013, arose in the context of Mr Jeanes attempting to discuss the applicant's return to work following his workers compensation claim. Mr Jeanes claimed that the applicant ignored him and then said "I'm going" and walked out. 2. In his interview with Ms Nix on 12 May 2014, the applicant claimed that, during this discussion, Mr Jeanes was "getting obstropolous" so the applicant said "I'll see you later" and walked out. 3. Based on the applicant's own admission to Ms Nix, his behaviour on this occasion constituted misconduct. However, the seriousness of this misconduct is not at such a level as would normally warrant dismissal of an employee. This incident is, however, indicative of the applicant's attitude towards his supervisors and fellow employees which is further discussed later in this decision. 17 October 2013 1. In his written statement, Mr Jeanes claimed that, after the applicant arrived at work at 10.25am on this day, the applicant was advised that he would need to apply for a quarter day's recreation leave. A conversation then ensued about the provision of a doctor's certificate. According to Mr Jeanes, the applicant talked over the top of him, speaking loudly and abruptly. Brad Clark, Acting Regional Manager, was present on speaker phone during part of this incident. 2. When questioned about this incident by Ms Nix, the applicant claimed "I don't remember that. I don't recall that anyway". The applicant was not cross-examined about this incident during these proceedings. 3. In the absence of direct evidence from either Mr Jeanes or Mr Clark, I am not satisfied that the Department has proven this particular of this allegation to the required standard of proof, being the balance of probabilities. 18 December 2013 1. In his written statement, Mr Jeanes claimed that, when he spoke to the applicant on 18 December 2013 about him not assisting with office duties, the applicant responded in a disrespectful and aggressive manner and raised his voice and talked over the top of Mr Jeanes. 2. In his interview with Ms Nix on 12 May 2014, the applicant claimed that Mr Jeanes was "right in my face… standing over me pointing… he wouldn't even let me put a word in". Apparently Mr Kildey witnessed this incident. 3. In the absence of direct evidence from Mr Jeanes or Mr Kildey, I am not satisfied that the Department has proven this particular of this allegation to the required standard of proof, being the balance of probabilities. 4b In entering a commencement on duty time of 8.30am on 25 November 2013, 26 November 2013 and 27 November 2013 respectively on his flex sheet, Mr Paulson disregarded and refused to adhere to the lawful direction of Officer in Charge Mr Bayden Jeanes to commence work at 9.00am. 1. The applicant admitted this allegation. Counsel for the applicant submitted as follows: 4B is the allegation of, on three occasions, the applicant attended work at 8.30 in the morning instead of nine. It was admitted by the applicant, but, again, it is a trivial application. It was dealt with at the time. Mr Jeanes made have been one of the few employers to castigate an employee for attending work early, but be that as it may, that is at allegation 4B. 4c On, or about 12 August 2013, whilst questioning a number of youths concerning graffiti identified during a routine inspection of the male amenities of Broadmeadow Children's Court, Mr Paulson failed, on at least three separate occasions, to respond to the radio calls of Sheriff's Officer Mr Craig Hendrickse. 1. The applicant has denied this allegation. 2. The Department relies upon the Security Incident Report completed by Mr Hendrickse on 13 August 2013, in which he stated that he said "3 to 2" into the radio three times with no response. According to a note made by Ms Nix about a meeting she had with Mr Hendrickse on 15 April 2014, he repeated that claim to her. 3. During the cross-examination of Mr Hendrickse in these proceedings the following exchange occurred: Q. It's then that you say you attempted to contact Officer Paulson via radio three times, do you see that there? A. Yes. Q. I want to suggest to you that you did not try and contact him three times via radio. What do you say to that? A. If it was written there, then I would have ‑ I would have done that. 1. There is no other evidence which relates to this allegation. 2. Given the applicant's denial concerning this incident, and the lack of any corroborative evidence to support the evidence of Mr Hendrickse, I am not satisfied that the Department has proven this allegation to the required standard of proof, being the balance of probabilities. 4d Mr Paulson engaged in a rude, disrespectful, aggressive and abrupt manner during discussions with Regional Manager Ms Cindy Cannell, with particular reference to a meeting of 6 May 2013, in which he abruptly terminated a telephone conversation. 1. It does not appear that there was a meeting between the applicant and Ms Cannell on 6 May 2013. According to a handwritten file note made by Ms Cannell on that day, she received a phone call from the applicant in which he requested six months' leave without pay. Ms Cannell advised the applicant to put his application in writing, but that it would be unlikely to be supported as it would cause significant operational difficulties. Ms Cannell's file note contained the following entry: CP interrupted stating he would take it to the union. Did not seem interested in what I was saying – he then hung up on me. 1. In his interview with Ms Nix on 12 May 2014, the applicant stated as follows: Look – no, I don't recall that, but if I did I probably terminated it because yes it was upsetting me. But I – that's what I do, I always – I always terminate things if it's getting – if I get upset. I don't want to talk to people in a rude or abrupt manner, that's why I do it. I say "I'll see you later, Cindy, I can't talk like that" and I just hang up because I don't want to – I don't want to get into a – into an argument. And that's exactly what I did upstairs when I did it with Bayden, I walked off. And that's what I do because it decreases the – the confrontation. It's – it's, you know, I'm trying to decrease the confrontation. 1. However, during cross-examination, the applicant gave the following evidence: Q. She says you then became agitated and said it was not your fault that there's no staff, it's the department's fault? A. No, I don't recall that. Q. She said, "It's not a matter for blame; we need to consider the application. However, ordinarily, it is not supported to work elsewhere"? A. I don't recall that. Q. She says, well, you interrupted and started to say that you would take it to the union? A. No. Q. You weren't interested in what she was saying? A. I don't recall it. Q. Then you hung up on her? A. I don't recall that; I wouldn't hang up on her. 1. In her witness statement in these proceedings, Ms Cannell stated: Towards the end of the conversation Mr Paulson became agitated as evidenced by him speaking increasingly louder, talking over the top of what I was attempting to say and appearing extremely angry. He then terminated the conversation by abruptly hanging up on me which I found extremely disrespectful and rude. 1. During the cross-examination of Ms Cannell, the following exchange occurred: Q. In short, is what really happened that Mr Paulson became upset, he was getting angry, so he hung up? Is that a fair summary of that incident? A. Plus more, yes. He was right the way through, he wasn't getting what he wanted and he was very angry, he was very abrupt and kept repeating what he wanted and wouldn't he would ask a question, loudly, rudely, and wouldn't give me a chance to respond and the because he wasn't given what he wanted, is my interpretation of it, he hung up on me, yes. Q. If he was emotional and angry, didn't he really do the right thing by ending the call before he got any angrier? A. I don't believe that it's respectful to have spoken to me in the way that he did in the first place. Yes, hanging up the phone call probably was a good idea for him but probably well, not probably, definitely, having being a bit more respectful in the way he was asking his request, probably would have been the best way to go. 1. Given the applicant's admissions to Ms Nix on 12 May 2014, I prefer Ms Cannell's version of this telephone conversation over that given in these proceedings by the applicant. I find that this allegation is proven on the balance of probabilities. However, I note that on 23 August 2013, well after this incident had occurred, Ms Cannell was still proposing to deal with applicant on the basis of his unsatisfactory performance and was proposing remedial action, rather disciplinary action for misconduct. 5 Mr Paulson failed to maintain accurate flex sheet records concerning his time and attendance patterns during the period including, but not limited to, August 2013 to November 2013. 6 During the period including, but not limited to, August 2013 to November 2013, Mr Paulson failed to complete and submit accurate work diary and motor vehicle running records. 1. In his interview with Ms Nix on 12 May 2014, the applicant admitted that he had failed to maintain accurate flex sheet records and motor vehicle running records, but claimed that he had rectified them. 2. In final submissions, counsel for the applicant stated: 4E is unsubstantiated and then we move on to allegations 5 and 6 which are, again, trivial allegations about flex sheets and work diaries and car records being inaccurate at times in 2013. Again, they are admitted, but, once again, they are trivial allegations that were rectified at the time. They are also of similar vein to allegations 24 and 25 over the page, again, flex sheets, inaccurate, vehicle records inaccurate. This relates to, I think, March and April 2014. Again, they are admitted, but, again, they are trivial allegations that were dealt with at the time and were rectified. 1. Whilst I disagree with the submission that these two allegations are trivial, they are not of sufficient seriousness to warrant the dismissal of the applicant. 7 Mr Paulson's actions, conduct and behaviour are contrary to the fundamental principles and objectives of the performance of his role as a Sheriff's Officer under relevant provisions of the Courts Security Act 2005 and Sheriff's Act 2005. 8 Mr Paulson's actions and behaviour are contrary to the Department's Code of Conduct and relevant policies / legislation. 1. The Department relies on each finding of misconduct to establish the elements of these two allegations. 2. In final submissions, counsel for the applicant stated: Allegation 7 is another one of the global allegations. The first is breaching the fundamental principles of being a Sheriff's Officer or words to that effect. Number 8 is breaching Codes of Conducts and policies, et cetera. Again, the applicant says those allegations are duplicitous. They are unsustainable because they rely on other unfounded allegations to sustain those particular allegations. 1. To the extent that these two allegations rely upon other allegations which have not been proven in these proceedings, these allegations cannot be sustained. To the extent that they rely upon other allegations which have been proven in these proceedings, they do not advance the case for the Department. 9 Mr Paulson made an application to engage in secondary employment with Corrective Services on or about 6 May 2013, management declined the application. Mr Paulson engaged in said secondary employment without approval on the following dates: 24-26 April 2013, 1 May 2013, 3-5 May 2013 and 11-12 May 2013. 1. In the letter from Ms Nix to the applicant dated 9 May 2014, the date on which it was said that the applicant made an application to engage in secondary was "on or about April 2013" not "on or about 6 May 2013" (see paragraph 12 above). 2. In his interview with Ms Nix on 12 May 2014, the applicant claimed that he had attended an induction with Corrective Services in his own time. He then made an application to engage in secondary employment which was knocked back. He claimed that he did not work for Corrective Services after that. 3. In final submissions, counsel for the applicant stated: Allegation 9 is the incident of secondary employment. That allegation is admitted. The applicant explained that, in effect, he went about it the wrong way. Attempts were made by Ms Nix and, perhaps, the respondent, in particular, to try and paint the applicant as being deceptive by engaging in those shifts that he did, but you heard the evidence from Mr Chenhall yesterday. Mr Chenhall could not recall ever saying to the applicant on three or four occasions, as Ms Nix notes in her report, "Have you got your approval? Have you got your approval?" Mr Chenhall had no memory of that. Mr Paulson said, "He never badgered me or repeatedly asked for the approval. Once I did those shifts, I enjoyed the work. I then made the application. The application was refused and I stopped". It's not a serious allegation, in my submission. 1. It is apparent that, after the telephone conversation between the applicant and Ms Cannell on 6 May 2013, during which Ms Cannell indicated that an application by the applicant for leave without pay to work for Corrective Services NSW would be unlikely to be supported, the applicant did work another two shifts for Corrective Services on 11 and 12 May 2013. However, the applicant's written application for approval of secondary employment was not formally rejected by Ms Cannell until 14 May 2013. 2. Ms Nix's claimed that Mr Chenhall had told her that he had asked the applicant on three or four occasions to provide him with a letter from the NSW Sheriff approving his secondary employment with Corrective Services. This was not supported by Mr Chenhall's evidence in these proceedings. 3. It is apparent that the applicant did engage in secondary employment without approval. He admitted that he went about it the wrong way. The applicant worked a further two shifts on 11 and 12 May 2013, after Ms Cannel had made it clear to him, on 6 May 2013, that he needed Departmental approval to engage in such employment, and that such approval would be unlikely to be forthcoming. This constituted misconduct by the applicant. 13 Sometime after 13 November 2013 Mr Paulson inappropriately approached Mr Lints. Mr Paulson demanded Mr Lints tell him what he said in his statement regarding the sharp instrument that Mr Paulson permitted into the Toronto Court Complex and said words to the effect of, "Oh well, you'll get in trouble too because you were the one that let it go through". 1. The applicant has denied this allegation. 2. Mr Lints made this allegation to Ms Nix during his interview with her on 9 April 2014. There is no evidence to the effect that the applicant had been cautioned to not approach Mr Lints in relation to the statement he had made concerning the "Toronto sharps incident", prior to the time of this alleged conversation. He did not receive the letter of allegations from Ms Nix until on or after 9 May 2014. 3. In the Findings Summary, Ms Nix stated that "Mr Jeanes, Ms Barry, Mr Kildey, Mr Andrews, Ms Morrow and Mr Hendrickse have provided corroborating evidence regarding Mr Paulson engaging in similar conduct and behaviour". Of these people, only Mr Andrews and Mr Hendrickse gave evidence in these proceedings. 4. In his interview with Ms Nix on 7 April 2014, Mr Andrews was asked if the applicant had approached him about the matters which Ms Nix was investigating. Mr Andrews replied that the applicant had not. Mr Andrews did not give any evidence to the contrary in these proceedings. 5. Mr Hendrickse did not give any evidence which could be regarded as corroborative of this allegation. 6. In support of this allegation, the Department relies upon its Corroborative Evidence Submission. That document, which is referred to at paragraph 165 above, catalogues alleged instances of the applicant using swear words. It is not alleged that the applicant swore during the conversation with Mr Lints, which gave rise to this allegation. 7. I am not satisfied that the Department has proven this allegation to the required standard of proof, being the balance of probabilities. In any event, it is difficult to see how this alleged statement by the applicant to Mr Lints, even if it were made, could constitute misconduct by the applicant. Unsurprisingly, the applicant was not cross-examined in relation to this allegation 16 When Mr Kildey was acting in the position of Officer in Charge Newcastle Sheriff's Office, sometime during 2013, he attended Broadmeadow Children's Court to discuss Mr Paulson's leave; Mr Paulson said words to the effect of, "it's fucking bullshit, I've got medical certificates for all of it. This is fucking bullshit". Mr Paulson then proceeded to walk away and provided no explanation to Mr Kildey. 17 On 18 December 2013, Mr Paulson spoke in an aggressive and inappropriate manner to Mr Anthony Kildey, Sheriff's Officer Newcastle Sheriff's Office, saying words to the effect of, "Don't talk to me. You're a big disappointment to me". 1. The applicant has denied these allegations. 2. Mr Kildey did not give evidence in these proceedings. 3. I am not satisfied that the Department has proven these allegations to the required standard of proof, being the balance of probabilities. 18 On 13 January 2014, Mr Paulson attended Toronto Sheriff's Office and during a conversation with Ms Morrow, Mr Paulson made a comment using words to the effect of, "It is none of your business what I do. You go on with what you're doing. What I am doing is none of your business lady" and as you exited the building you referred to Ms Morrow as, "Nothing but a fucking clown". 1. According to a written statement made by Ms Morrow on 16 April 2014, she had been advised by Ms Hall that the applicant would be attending Toronto Sheriff's Office on 13 January 2014 to send an email. He was not on duty at the time. Ms Morrow stated that she approached the applicant when he was at the photocopier and asked him how much longer he thought he might be, following which the applicant is alleged to have made the comments which are the subject of this allegation. 2. During his interview with Ms Nix on 12 May 2014, the applicant stated that he had been provided with a computer by the court officer named Richard. The applicant claimed that, after a period of less than ten minutes, Ms Morrow came up to him and said "what are you doing". The applicant stated that he replied "excuse me… it's none of your concern". He said that Ms Morrow replied with aggression "oh you are my concern" to which the applicant replied "hey, I'm printing out stuff and I'm going to go". 3. Later in the interview, the applicant told Ms Nix that Ms Morrow had approached him and said "you are my business, when are you going" to which he replied "it's none of your business, I'm doing my work, I'm just doing – I'm just doing – doing what I've asked to come in to do". 4. The applicant denied that he made the "fucking clown" comment. 5. Ms Morrow did not give evidence in these proceedings. 6. In the Findings Summary, Ms Nix stated that "Mr Jeanes, Ms Barry, Mr Kildey, Mr Andrews, Ms Morrow and Mr Hendrickse have provided corroborating evidence regarding Mr Paulson engaging in similar conduct and behaviour". 7. I disagree. 8. I am not satisfied that the Department has proven this allegation to the required standard of proof, being the balance of probabilities. 19 On or about 6 February 2014, during a conversation with Mr Kildey regarding jury room and building keys Mr Paulson spoke in a loud and inappropriate manner. 1. The applicant has denied this allegation. 2. Mr Kildey did not give evidence in these proceedings. 3. As with allegations 16 and 17, I am not satisfied that the Department has proven this allegation to the required standard of proof, being the balance of probabilities. 20 Sometime on or about February 2014, whilst empanelling a Jury with Ms Esler, Mr Paulson called her over to where he was sitting and said words to the effect of, "It's too fucking hot in here, I can't do this, I'm out", and got up and left the room. Mr Paulson made this comment in front of approximately 40 potential Jurors. 1. During his interview with Ms Nix on 12 May 2014, the applicant responded to this allegation as follows: No, I said that it was hot in here, I needed to get out because my shirt was drenched, soaking wet in sweat, that was all sweat, and people were going to me "are you okay, are you okay" and I said "yeah, it's just hot". I said – I said to Emma, I said "I'm going, I have to go, I can't get in – I can't stay in there"' because I'm telling you I was perspiring so much and I couldn't – and there's no way I'm going to sit there and I'm all wet… And I didn't say any of that, I just said "I'm going, it's hot in here". And I went up and spoke to Barry saying "look, it's really hot in there, I don't want to go in there until it cools down". Because I'm telling you I was sweating, I didn't have any shirt – a spare shirt and it's just wrong me walking around with sweat all over me. 1. Under cross-examination in these proceedings, Ms Esler gave the following evidence: Q. I want to suggest to you that Mr Paulson has never used the eff word in the presence of jury panels. A. He did, the day that I was there, and, yes, he was sweating profusely, like, as in it was, like, running down his face. Q. I want to suggest to you that all he said was, "It's too hot in here", and then he left and then he came back a few minutes later. A. He didn't ever come back. Q. He didn't come back? A. No. I done the whole panel myself. 1. However, Mr Wademan, in his written statement, stated in relation to this incident: On a date I cannot recall, there was incident when he was helping Ms Emma Esler, the Court Officer with empanelling a Jury and he came up to the office and advised me he wasn't working down there, it was too hot and it was stressing him out. I told him to return to his post, and that he had to help Ms Esler and I offered him a fan. He didn't take the fan and he returned to help Ms Esler. 1. In the Findings Summary, Ms Nix stated: Mr Paulson admitted to leaving Ms Esler on her own for a period of time to process the Jury members. Mr Paulson did return sometime later to assist her. 1. There can be no doubt that, during this incident, the applicant was sweating profusely. However, there is doubt about Ms Esler's recollection of the incident, in particular, whether the applicant returned to assist her. 2. Despite what Ms Nix regarded as "corroborating evidence" from Mr Jeanes, Ms Barry, Mr Kildey, Mr Andrews, Ms Morrow and Mr Hendrickse, I am not satisfied that the Department has proven the allegation that the applicant swore in front of 40 potential jurors, to the required standard of proof, being the balance of probabilities. Absent the swearing aspect, the other elements of this allegation do not involve misconduct. 21 Sometime after 18 March 2014, Mr Paulson breeched confidentiality of the misconduct process by approaching Ms Esler and asking her about her involvement in Mr Paulson's current misconduct matter. 1. The applicant has denied this allegation. 2. Ms Esler made this allegation to Ms Nix during the interview with her on 9 April 2014, in the following terms: At lunch I came in and he was in the room and I was there by myself with him. So he shut the door, and I always leave it open but he shut it, and he's a little bit shorter than me, and he said to me "do you have a problem with me", I said to him "no". Was waiting for an explanation because I knew there was an issue between us and he said to me that he'd received a letter from the Department, my name happened to be on it, in relation to an investigation and he wanted to know what I had said. And I said to him I hadn't spoken to anybody, hadn't seen anybody, had no clue what he was talking about, which I don't whether that – he appeared to be a lot happier once he knew that I hadn't spoken to anybody and he's kind of indicated that if I could write that down for him that I hadn't spoken to anyone. There were no other witnesses to this conversation. 1. When the applicant was interviewed by Ms Nix on 12 May 2014, the following exchange occurred: Q. All right. So sometime after you got your letter from Michael Talbot it's alleged that you breached confidentiality by approaching Emma Esler and asking her about her involvement in this current matter. A. No. Q. So when you got your letter where it says, you know, Emma Esler has said whatever – A. Yeah, yeah, yeah. Q. –she's just said that you approached and asked her about what she may have said in the letter. A. No, I don't want to ask her about anything because I know she's friends with Bayden. I wouldn't say that to them. And like I said all these people who said this are aligned with Bayden, to me anyway. They're all the same people putting in these allegations, same person, same person, they're all good friends. The letter from Mr Talbot to the applicant, to which Ms Nix referred in this exchange, was not reproduced in the Report and was not otherwise tendered into evidence in these proceedings. There is no evidence to the effect that the applicant had been cautioned to not approach Ms Esler in relation her involvement in his misconduct matter. 1. In the Findings Summary, Ms Nix stated that "Mr Jeanes, Ms Barry, Mr Kildey Mr Andrews, Ms Morrow and Mr Hendrickse have provided corroborating evidence regarding Mr Paulson engaging in similar conduct and behaviour". Of these people, only Mr Andrews and Mr Hendrickse gave evidence in these proceedings. In his interview with Ms Nix on 7 April 2014, Mr Andrews was asked if the applicant had approached him about the matters which Ms Nix was investigating. Mr Andrews replied that the applicant had not. Mr Andrews did not give any evidence to the contrary in these proceedings. 2. Mr Hendrickse did not give any evidence which could be regarded as corroborative of this allegation. 3. I am not satisfied that the Department has proven this allegation to the required standard of proof, being the balance of probabilities. 22 On 3 April 2014, during a conversation with Ms Kirsten Barry, Second in Charge, Newcastle Sheriff's Office, about an application to withdraw a Jury, Mr Paulson spoke in an inappropriate manner saying words to the effect of, "I don't know what you're talking about. I won't be blamed for discharging the Jury". 1. The applicant has denied this allegation. 2. Ms Barry did not give evidence in these proceedings. 3. I am not satisfied that the Department has proven this allegation to the required standard of proof, being the balance of probabilities. 23 On 4 April 2014, Mr Paulson's behaviour towards Ms Barry was aggressive and inappropriate when she asked Mr Paulson to refax a lunch order for Jury members. Mr Paulson spoke over Ms Barry and made comment using words to the effect of, "I'm not fucking doing it. I've already done it", "If they don't get it, it's not my problem, it's a fax problem. No one showed me how to do it". Mr Paulson waved and violently pointed at a fax confirmation saying words to the effect of, "Look! I've done it. I've done it." 1. The applicant has denied this allegation. 2. Because Ms Barry did not give evidence in these proceedings, her written statement concerning this incident was not tested and, in the normal course, would carry little weight. However, Mr Andrews witnessed this incident and, in his interview with Ms Nix on 7 April 2014, recalled the incident in similar terms as Ms Barry has set out in her written statement. Mr Andrews, in his evidence in chief in these proceedings, stated that the contents of his record of interview with Ms Nix, so far as his answers were concerned, were true and correct. He was not cross-examined on this part of his record of interview. 3. In these circumstances, I am satisfied that the Department has proven this allegation to the required standard of proof, being the balance of probabilities. 24 On 16 April 2014, Ms Barry bought to Mr Paulson's attention that he failed to maintain correct flex sheet records as follows: • 10 – 25 March 2014: Flex sheet indicates "leave" for each day. • 26 March 2014: 87 hours entered on flex sheet as Time off in Lieu (TOIL). • 27 March 2014: Hours worked are entered as 8.30am – 12.30pm. • 28 March 2014: 100 hours entered on flex sheet as TOIL. • 31 March 2014: 122 hours was entered on flex sheet as TOIL. • Carried forward hours shows as nil on flex sheet. It should be 2.30 hours in debit. • 4 April 2014: No finish time entered on flex sheet. 25 On 16 April 2014, Ms Barry bought to Mr Paulson's attention that he failed to maintain up to date Motor Vehicle Running Record (MVRR). As of 11 April 2014, only the dates 1 April 2014 and 2 April 2014 had been entered on Mr Paulson's MVRR. 1. The applicant has admitted allegations 24 and 25 but submits that they are trivial allegations which were dealt with at the time and were rectified. In summary 1. Of all the allegations which Ms Nix and Mr Talbot determined to have been substantiated, only the following have been proven by the Department in these proceedings on the balance of probabilities, based on the evidence placed before the Commission, to constitute misconduct by the applicant: 3d On, or about 30 September 2013, Mr Paulson approached Sheriff's Officer Mr Steven Andrews and made a statement with words to the effect of, "Andrews, you nothing but a dog". 4a Mr Paulson continually engaged in a rude, disrespectful, aggressive and abrupt manner when conversing with his supervisor, Officer in Charge Mr Bayden Jeanes, with particular reference to discussions conducted on 18 December 2013, 17 October 2013, 14 October 2013 and 6 February 2014 (2012) respectively - but only in relation to the incidents of 6 February 2012 and 14 October 2013. 4b In entering a commencement on duty time of 8.30am on 25 November 2013, 26 November 2013 and 27 November 2013 respectively on his flex sheet, Mr Paulson disregarded and refused to adhere to the lawful direction of Officer in Charge Mr Bayden Jeanes to commence work at 9.00am. 4d Mr Paulson engaged in a rude, disrespectful, aggressive and abrupt manner during discussions with Regional Manager Ms Cindy Cannell, with particular reference to a meeting of 6 May 2013, in which he abruptly terminated a telephone conversation. 5 Mr Paulson failed to maintain accurate flex sheet records concerning his time and attendance patterns during the period including, but not limited to, August 2013 to November 2013. 6 During the period including, but not limited to, August 2013 to November 2013, Mr Paulson failed to complete and submit accurate work diary and motor vehicle running records. 9 Mr Paulson made an application to engage in secondary employment with Corrective Services on or about 6 May 2013, management declined the application. Mr Paulson engaged in said secondary employment without approval on the following dates: 24-26 April 2013, 1 May 2013, 3-5 May 2013 and 11-12 May 2013. 23 On 4 April 2014, Mr Paulson's behaviour towards Ms Barry was aggressive and inappropriate when she asked Mr Paulson to refax a lunch order for Jury members. Mr Paulson spoke over Ms Barry and made comment using words to the effect of, "I'm not fucking doing it. I've already done it", "If they don't get it, it's not my problem, it's a fax problem. No one showed me how to do it". Mr Paulson waved and violently pointed at a fax confirmation saying words to the effect of, "Look! I've done it. I've done it." 24 On 16 April 2014, Ms Barry bought to Mr Paulson's attention that he failed to maintain correct flex sheet records as follows: • 10 – 25 March 2014: Flex sheet indicates "leave" for each day. • 26 March 2014: 87 hours entered on flex sheet as Time off in Lieu (TOIL). • 27 March 2014: Hours worked are entered as 8.30am – 12.30pm. • 28 March 2014: 100 hours entered on flex sheet as TOIL. • 31 March 2014: 122 hours was entered on flex sheet as TOIL. • Carried forward hours shows as nil on flex sheet. It should be 2.30 hours in debit. • 4 April 2014: No finish time entered on flex sheet. 25 On 16 April 2014, Ms Barry bought to Mr Paulson's attention that he failed to maintain up to date Motor Vehicle Running Record (MVRR). As of 11 April 2014, only the dates 1 April 2014 and 2 April 2014 had been entered on Mr Paulson's MVRR. 1. Allegations 4a (in relation to the email exchange on 6 February 2012), 4d and 9 all relate to incidents which occurred before 23 August 2013, the date on which Ms Cannell wrote to the applicant concerning his "continued unsatisfactory performance". From this I take it that, at least as far as Ms Cannell was concerned, these three incidents were more appropriately characterised as unsatisfactory performance rather than misconduct. Nevertheless, I regard the applicant's conduct during the telephone conversation with Ms Cannell on 6 May 2013 as constituting misconduct, despite the applicant's explanation of his conduct on that occasion. 2. Allegation 3d certainly involves misconduct on the part of the applicant, as do allegations 4a (in relation to the incident of 14 October 2013) and 23. 3. Allegations 4b, 5, 6, 9, 24 and 25 again appear to deal with performance issues, although the regularity of the incidents giving rise to some of these allegations, does disclose a level of misconduct on the part of the applicant. Was the dismissal of the applicant harsh, unreasonable or unjust? 1. In chronological order, the proven allegations against the applicant are as follows: 6 February 2012 The applicant engaged in a rude, disrespectful, aggressive and abrupt manner when conversing with Mr Jeanes. (allegation 4a). 6 May 2013 The applicant engaged in a rude, disrespectful, aggressive and abrupt manner during a telephone conversation with Ms Cannell. (allegation 4d). 11-12 May 2013 The applicant engaged in secondary employment after being advised that approval was required and would be unlikely to be forthcoming. (allegation 9). August – November 2013 The applicant failed to maintain accurate flex sheet records concerning his time and attendance patterns. (allegation 5). The applicant failed to complete and submit accurate work diary and motor vehicle running records. (allegation 6). I note again that it was during this period, on 23 August 2013, that Ms Cannell wrote to the applicant concerning his "continued unsatisfactory performance". 30 September 2013 The applicant made a statement to Mr Andrews with words to the effect of, "Andrews, you nothing but a dog". (allegation 3d). 14 October 2013 The applicant walked out on Mr Jeanes who was attempting to discuss the applicant's return to work following his workers compensation claim. (allegation 4a). 25-27 November 2013 The applicant disregarded and refused to adhere to a lawful direction of Mr Jeanes to commence work at 9.00am. (allegation 4b). I note that it was on 28 November 2013 that Ms Cannell prepared her memo to Ms Hall requesting a HR Review of performance issues pertaining to the applicant. 4 April 2014 The applicant's behaviour towards Ms Barry was aggressive and inappropriate when she asked the applicant to refax a lunch order for Jury members. He spoke over Ms Barry and made comment using words to the effect of, "I'm not fucking doing it. I've already done it", "If they don't get it, it's not my problem, it's a fax problem. No one showed me how to do it". The applicant waved and violently pointed at a fax confirmation saying words to the effect of, "Look! I've done it. I've done it.". (allegation 23). 16 April 2014 Ms Barry bought to the applicant's attention that he failed to maintain correct flex sheet records (allegation 24). Ms Barry bought to the applicant's attention that he failed to maintain up to date Motor Vehicle Running Record (MVRR) (allegation 25). 1. I disagree with the characterisation of these allegations by counsel for the applicant as "trivial". The proven misconduct of the applicant certainly warranted some form of disciplinary sanction. However, none of these proven allegations, when considered separately or cumulatively, establish misconduct on the part of the applicant of sufficient seriousness as to justify the dismissal of the applicant. 2. I find that the dismissal of the applicant was harsh in the sense that the punishment did not fit the crime or, put another way, was "too harsh a consequence" for the applicant's misconduct, in the sense that this expression was used by Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at p.233 where his Honour stated as follows: In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. Is reinstatement or re-employment impracticable? 1. Ms Cannell gave the following evidence in chief: 19. I would find it extremely difficult to see how Mr Paulson could be returned to the Sheriff's Office team in the Northern Region given the performance concerns regarding security issues and what I have observed as his disrespect for fellow employees. 20. In respect of this latter concern, I recall a number of meetings in about late 2013 and 2014 with Mr Paulson in which I endeavoured to engage him on the question of his deteriorating relations with members of the supervisory staff (particularly Mr Jeanes and Ms Barry). However, Mr Paulson was totally unreceptive. Mr Paulson would repeatedly assert he was working in a hostile environment and was openly rude towards Mr Jeanes in my presence. Mr Paulson also articulated his refusal to accept Mr Jeanes' authority or converse with him. ………………… 22. I did not observe myself any hostile behaviour towards him by other members of staff. 23. As a consequence, should Mr Paulson be reinstated or reemployed within the Northern region of the Sheriff's Office I would expect a re-emergence of inter-personal relationships with other members of staff which would be extremely destructive towards staff productivity and harmony as well as difficult to manage. 24. If Mr Paulson was returned and not reappointed as a security officer pursuant to Section 21 of the Court Security Act 2005 then that would significantly restrict his ability to undertake the full range of duties as a Sheriff's Officer. 1. Under cross-examination, Ms Cannell gave the following evidence: Q. Under paragraph 19 of your witness statement, exhibit 4, you express a number of views about Mr Paulson and his performance. You also express a number of views about the practicality of his reinstatement as a sheriff's officer. Given that Bayden Jeanes has left the department and that Leah Morrow has left the department, isn't it possible that Mr Paulson could be re employed at Toronto Courthouse? A. No. I don't believe it would be practical. Q. Isn't it possible that he could be employed as a sheriff's officer at Maitland or Belmont or Raymond Terrace? A. Unless Mr Paulson has made a transformation that he's prepared to have remedial action and I believe it's gone too far, considering the disciplinary, but he refused point blank to engage in any remedial action, and there was a whole ambit of things that he did, the main one being the extreme disrespect that I personally observed in the way he treated any supervisor. He didn't just have issues with Bayden Jeanes or Leah Morrow; there was also issues with Tony Fiedler and there was issues with Kirsten Barry, all of which had been his supervisors in the time that I've known him. He also had some other significant issues and, as I said, he just refused to engage in any degree of performance management or performance counselling to address his issues or his workplace behaviours. Q. Did I just hear you correctly? You just said that you had observed how he interacted with his superiors or other A. Yes, I have. Q. Can I take you to paragraph 22 of your statement, where you state, "I did not observe, myself, any hostile behaviour towards him by other members of staff"? A. Yes, towards him, not from him. Q. Towards him? A. Towards him. I did not observe other staff treating him with any degree of hostility; I only observed the hostilities from him towards other people. Q. Are you aware that he formed the view that he was being bullied and harassed by Bayden Jeanes? A. He did that was to do with a different supervisor, that he claimed that. He did say in every interaction that he had with me that he was being bullied and he felt that he was being harassed. He didn't elaborate on anything to do with some of that. It was all in my assessment, what he's saying, and I can only go by some previous interactions, for example, with his previous supervisor, where he'd made certain claims of bullying and harassment because he was asked to wear the assigned uniform, the uniform that was provided to him, but I didn't observe any bullying or harassment on him from Bayden Jeanes. Q. At any stage, did you speak to any of the other Court staff, being non sheriff staff, about their attitudes towards Mr Paulson and their dealings with him? A. No, it wouldn't be appropriate for me to do that. Q. Did you observe Mr Paulson at any time A. Sorry, there was one where there was a formal complaint through from Craig Hendrickse. Sorry, there was an incident there. Q. Did you observe at any time Mr Paulson and how he interacted with other Court users when they would enter and leave Court precincts? A. I didn't place particular attention on that, no. Q. Could I suggest to you that, if the Commissioner was minded to grant reinstatement to Mr Paulson, there are in fact numerous Courthouses in the Hunter Valley where Mr Paulson could be stationed to perform his duties? What do you say to that? A. He's never addressed the issues in the first place; his time attendance, the way he spoke to people, following instructions, actually being on duty when he's supposed to be. There was a whole range of issues with Mr Paulson and I personally don't believe that reinstatement is viable. The roster runs through Newcastle, there's an entire roster that shares all responsibilities with staff. Mr Paulson refuses to work with some staff. Q. It's the case, isn't it, that most of those staff, namely, Bayden Jeanes and Leah Morrow, have left? A. No. There's been other issues with Mr Paulson's behaviours and that's all formed part of the brief. It's as I said, the roster runs from Newcastle and the rostering is shared between all staff, to give everybody a whole ambit of experience in all the various centres, and it's a centralised rostering system. 1. I accept this evidence of Ms Cannell. In particular, I am of the opinion that it would be extremely difficult, if not impossible, for a viable working relationship to be re-established between the applicant and Ms Cannell, Mr Hendrickse, Mr Andrews and Ms Esler, each of whom gave evidence for the Department in these proceedings, as well between the applicant and the other employees of the Department who provided Ms Nix with information which was adverse to the applicant, but did not give evidence in these proceedings. 2. I also accept the unchallenged evidence of Mr Wademan to the effect that the applicant can be very difficult to manage and that he becomes very defensive and argumentative when asked to complete simple work tasks (see paragraph 51 above). 3. Throughout these proceedings, it was put on behalf of the applicant that he felt like he was being persecuted by the Department. The evidence before the Commission does not establish that this was the case. Many of the allegations against the applicant had a legitimate basis in fact, even if a number of them involved unsatisfactory performance rather than misconduct. Calling upon the applicant to answer those allegations did not constitute persecution of him by the Department. The fact that the applicant believes that he was persecuted by the Department weighs heavily against the prospects of re-establishing a viable working relationship between the applicant and the Department. 4. The applicant, himself, had submitted a grievance or complaint against three other employees. Mr Mick Grimson, acting Sheriff at that time, managed this grievance process. After the applicant was provided with Ms Cannell's letter of 23 August 2013, concerning his "continued unsatisfactory performance", he went off work sick and made a workers compensation claim for psychological injury. That claim was declined on 16 September 2013. The applicant returned to work on restricted duties on 13 September 2013. The medical certificate which the applicant provided at that time included the following "Can work core hours, suggest change of location of workplace. Limit contact with people who have been involved with bullying as these people increase Craig's symptoms. If working at Newcastle or Broadmeadow with no contact with people involved with grievance process, Can work usual hours 7 hours/day, 5 days/week." 5. The evidence before the Commission does not establish that the applicant had been bullied at work by anyone. However, the fact that the applicant believed that he had been bullied to the extent that contact with fellow employees, against whom he had lodged a grievance, was seen by his doctor as the cause of increased symptoms of his psychological injury, militates strongly against a finding that reinstatement or re-employment of the applicant is practicable. 6. On 13 February 2014, the ADB received a complaint from the applicant alleging that the Department had discriminated against him on the grounds of race, carer's responsibility in employment and victimisation. In correspondence from the Department to the ADB dated 18 November 2014, it was stated that the applicant had alleged that: 1 His secondary employment application has been declined 2 He was required to put his request for time off in writing 3 He was not rostered to complete 'lock up' or 'unlock' duties 4 He has been denigrated in front of other officers 5 He has been targeted 6 He was relocated to another office 7 He has been subject to closer supervision; and 8 He has been denied relief opportunities. 1. On 26 October 2015, the President of the ADB declined the applicant's complaint. The applicant then asked the President of the ADB to refer his complaint to NCAT. Following this referral, the applicant's application was dismissed by NCAT pursuant to subsection 55(1)(c) of the Civil and Administrative Tribunal Act 2013 on the ground that the applicant failed to appear in the proceedings. Whilst NCAT has made no determination as to the merit, or lack of merit, of the applicant's complaint, the fact that he believed that he had been discriminated against by his employer weighs against the practicability of reinstatement and re-employment. 2. The applicant was dismissed on 20 October 2014. His unfair dismissal application was filed in the Industrial Registry on 7 November 2014. The application was first listed for conciliation before Commissioner Stanton on 4 December 2014. The hearing of the application before me did not commence until 27 March 2017. Much of this delay was due to the applicant's pursuit of alternative relief in another jurisdiction. Regardless of the reasons for the delay, the fact that the applicant has been absent from the workplace for such an extended period of time militates against reinstatement and re-employment. 3. The applicant presented in the witness box as a difficult, defensive and sometimes truculent personality. For example, on a number of occasions, when presented with a document by counsel for the Department, the applicant claimed that he had never seen it before, even though the document was part of the Report which had been in the applicant's possession since the middle of 2014 (see paragraphs 21 and 25 above). 4. It was also apparent from his demeanour in the witness box that the applicant harboured a deep seated antipathy towards the Department and, in particular, those employees who, as far as the applicant is concerned, had been part of a campaign of persecution of him. 5. A recurrent theme in the presentation of the applicant's case was that he believed that he had been subjected to a campaign of persecution by some of his former colleagues, as the following extracts from the cross-examination of Ms Nix demonstrate: Q. Did it occur to you that he felt that he was being persecuted by the department? A. I can't answer that. I don't know about that. I can't answer that, how he felt, but I do ‑ I did consider‑ Q. I'm not asking you how he felt. I'm asking whether you thought he may have felt persecuted. A. No. I don't believe I did, no. Q. At any stage did you consider that Mr Paulson may have felt as though he was being bullied and harassed by members of the department? A. When Mr Paulson said things like that, yes, I did consider that, if he mentioned it. I mean, I have to take both sides. That's all I can say. ……………… Q. Kirsten Barry described Mr Paulson as being defensive. Do you accept that he may well have been defensive when being interviewed by you? A. He may well have been. Q. Could that not explain some of his behaviours when dealing with you throughout the investigation process? A. I don't think there's any need to be confrontational and angry. 1. In re-examination, Ms Nix gave the following evidence: Q. You were asked some questions about whether Mr Paulson was unprofessional in his interaction with you. You said you believed he was unprofessional. How was he unprofessional? A. I didn't believe he was conducting himself in the proper manner in the workplace. He was quite ‑ like I said, he was confrontational, argumentative, he was angry. I find that's unprofessional; you shouldn't behave that way in the workplace. 1. I have found that the majority of the misconduct allegations against the applicant have not been proven by the Department to the required standard of proof in these proceedings. I have also found that those misconduct allegations which have been proven did not justify the dismissal of the applicant. However, the applicant has not established that he had been subjected to a campaign of bullying, harassment, persecution and discrimination by the Department and some of his former colleagues. There was nothing illegitimate or unfair in calling upon the applicant to respond to the allegations raised with him, including those allegations which Ms Nix found to be unsubstantiated and those allegations which the Department has failed to prove to the required standard of proof in these proceedings. 2. The applicant may have genuinely felt that he had been bullied, harassed, persecuted and discriminated against and that may explain, to some extent at least, the manner in which he conducted himself in interactions with his former colleagues and Ms Nix, and the manner in which he gave evidence in these proceedings. However, the determination which the applicant's mindset compels me to make, is that it would be impracticable to make an order for reinstatement or re-employment in this case. Compensation 1. Having found that the dismissal of the applicant was, in all the circumstances, harsh, but that reinstatement and re-employment are impracticable, I have determined that an order for compensation in favour of the applicant is warranted. 2. No evidence was led by either party as to whether the applicant has made a reasonable attempt to find alternative employment, the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment. As a consequence, I am unable to take these matters into account in assessing any compensation payable to the applicant. 3. In determining an appropriate amount of compensation, I have taken into account the following factors: 1 The applicant's age and length of service. 2 The level of unfairness attaching to the dismissal of the applicant, given that the majority, and most serious, of the misconduct allegations against him have not been proven in these proceedings. 3 The relatively low level of seriousness of the misconduct allegations which have been proven. 4 The length of time that has elapsed since the dismissal. 1. Taking into account all of these factors, it is my determination that an order for compensation in favour of the applicant in an amount equivalent to 13 weeks' pay at the rate which the applicant was being paid at the time of his dismissal, would be just and fair in all of the circumstances of this case. Order 1. The Department is ordered to pay to the applicant, within 14 days of today's date, a sum equivalent to 13 weeks' pay calculated at the rate of pay applicable to the position occupied by applicant immediately before the termination of the his employment on 20 October 2014. John Murphy Commissioner ********** Amendments 14 July 2017 - Amended Indent after paragraph 256 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: 14 July 2017