Industrial Relations Commission New South Wales Medium Neutral Citation: McFarlane v Corrective Services NSW [2018] NSWIRComm 1073 Hearing dates: 23 August 2017 Date of orders: 20 November 2018 Decision date: 20 November 2018 Jurisdiction: Industrial Relations Commission Before: Stanton C Decision: The unfair dismissal application by Kenneth McFarlane is dismissed Catchwords: UNFAIR DISMISSAL – Correctional Officer First Class-16 years' service - out-of-hours criminal conduct – assault of fellow Officer - intoxication - not guilty plea before Local Court - conviction of Assault Occasioning Actual Bodily Harm - District Court appeal affirmed finding of guilt - good behaviour bond for 12 months – comments of District Court Judge considered - procedural fairness considered – video evidence examined - seriousness of applicant's conduct against regulatory context governing applicant's employment considered – dismissal not unjust or unreasonable – harshness considered against mitigating factors – mitigating factors do not outweigh seriousness of applicant's misconduct – dismissal not harsh – dismissal not harsh, unjust or unreasonable - application dismissed Legislation Cited: Industrial Relations Act 1996 Crimes (Sentencing Procedure) Act 1999 Government Sector Employment Act 2013 Government Sector Employment Rules 2014 Industrial Relations (General) Regulation 2015 Cases Cited: Commissioner of Australian Federal Police v Butler and another [1989] FCA 473; 91 ALR 293 Concut Pty Ltd v Worrell and Another (2000) 103 IR 160 Corrective Services NSW v Danwer [2013] NSWIRComm 61 Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Hansen v Secretary of the Department of Transport – as head of the Transport Service and exercising the employer function of staff of Roads and Maritime Services [2016] NSWIRComm 1011 Loty and Holloway v Australian Workers Union 1971 AR 95 Outboard Marine Pty Ltd T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 Parmalat Food Products Pty Ltd v Walilo FWAFB [2011] FWAFB 1166 Perkins v Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 Wittensleger and Australian Securities and Investments Commission [2015] AATA 902 NSWIRComm 57 Category: Principal judgment Parties: Kenneth McFarlane (Applicant) Industrial Relations Secretary on behalf of the Secretary, Department of Justice (Corrective Services NSW) (Respondent) Representation: Counsel: Mr R Reitano (Applicant) Ms R Graycar (Respondent) Solicitors: Mr M Jaloussis, McNally Jones Staff Lawyers (Applicant) Mr J Baker, Corrective Services NSW (Respondent) File Number(s): 2017/00157448 JUDGMENT 1. This matter concerns an application made by Kenneth McFarlane pursuant to s 84 of the Industrial Relations Act 1996 (the Act) for reinstatement. The respondent is the Industrial Relations Secretary on behalf of the Secretary, Department of Justice (Corrective Services NSW). 2. The respondent maintains the applicant's dismissal was not harsh, unjust or unreasonable. Dismissal was an appropriate penalty in the circumstances having regard to the seriousness of the misconduct committed by the applicant. 3. Immediately prior to his dismissal, the applicant was employed as a First Class Correctional Officer at the John Morony Correctional Centre. He had 16 years' service with the respondent. Background 1. The incident that gave rise to the applicant's dismissal concerned an assault that occurred out of work hours. Details concerning that conduct are set out below. 2. The applicant was employed under the Crown Employees (Correctional Officers, Department of Justice – Corrective Services NSW) Award. 3. It must be said at the outset that there is no evidence before the Commission to suggest that prior to the applicant's dismissal the respondent had expressed a concern about his work performance or behaviour in the workplace. Shortly stated, his service was otherwise unblemished. 4. In determining this matter, I have given consideration to the evidence relied upon by the parties. The fact that I do not refer exhaustively to that evidence or elements of evidence that were addressed in submissions helpfully advanced by counsel does not mean that I have not read those materials. The reverse is the case. 5. Similarly, the fact that I do not set out in detail the policies and policy directives that the applicant was alleged to have breached does not mean that I have not read or examined those documents. The reverse is also the case. Procedural Matters 1. The application was filed within the time required in s 85 of the Act. The applicant is a person protected from dismissal as defined in s 83(1) of the Act and at the time of his dismissal, he was not a casual employee or an employee engaged for a specified period of time or specific task so as to be exempt by regulation. 2. Both parties were legally represented. The applicant was represented by Mr R Reitano of counsel. The respondent was represented by Ms R Graycar of counsel. The misconduct relied upon by the respondent 1. Following a day at the races with work colleagues (and partners) on 6 August 2015, the applicant, who on his own admission ultimately agreed with the proposition that he was affected by alcohol, assaulted a work colleague, Mr Patrick McKay by striking him on the back of the head causing him to fall to the ground where a further five or six punches were delivered to his face. 2. The actual degree of intoxication was a matter of some debate during the course of these proceedings. 3. On 10 May 2016, Magistrate Stafford of the Local Court (Parramatta) convicted the applicant of the offence of Assault Occasioning Actual Bodily Harm (AOABH). The applicant entered a not guilty plea. Her Honour sentenced the applicant to a 100 hours Community Service Order. In determining sentence, her Honour stated: Stand-up please, Mr McFarlane. I won't repeat the remarks I made before I referred you for assessment but because of my view of the seriousness of assaulting someone by punching them in their head when on the ground – and of course there is no discount you get because there was no plea of guilty. You don't get a higher sentence; you just don't get a discount if you plead not guilty but in any event my view is that the principles of sentencing can only be addressed by me imposing a community service order. You have been found suitable and I'm going to impose 100 hours. In this matter you are convicted of assault occasioning actual bodily harm. I impose a 100 hours community service order. You must report within seven days to the Community Corrections Office at Windsor. If you do not do the work in the time allocated to you, they do tell the Court and we will bring you back to the Court and decide if we should remove the community service order and perhaps give you a harsher penalty, which of course could mean gaol time as well. 1. An apprehended violence order to protect Mr McKay was subsequently made for a period of 12 months. 2. The Police facts relied upon before the Local Court were as follows: The victim in this matter Patrick McKay is friends with the accused Ken McFarlane, the co-accused Bryan McCann and their wives Catherine McFarlane and Sue McCann. All persons have known each other for some time as they are all corrections officers and work together at John Morony Correctional Centre. On Thursday, the 6th of August 2015 at 12pm, the victim McKay, the accused McFarlane and his wife Sue McFarlane attended Clarendon races. After the races concluded around 6pm, all three walked to the Clarendon Tavern where they met with Sue McCann and the co-accused McCann. About 7:45pm, the accused McFarlane and his wife Catherine McFarlane left the Clarendon Tavern. A short time later the accused McFarlane returned to the victim McKay and said, "I've lost Catherine, I don't know where she is". After a short search inside the Clarendon Tavern, the victim Mackay walked around the car park of the Clarendon Tavern. The victim Mackay was advised that Catherine McFarlane was on Racecourse Road. The victim Mackay walked ahead of the accused McFarlane and the co-accused McCann who were walking together. As the victim McKay walked about 600m from Clarendon Tavern, along Racecourse Road, he begun (sic) to notice a number of persons standing on the side of the road. Once he was closer, the victim McKay recognised that Catherine was lying on the ground and persons had stopped to assist Catherine McFarlane. The victim McKay knelt beside Catherine and tried to rouse her. After a few minutes, the accused McFarlane and the co-accused McCann approached the group. The accused McFarlane stated to the bystanders, "Did you do this?" The victim McKay replied, "Ken it wasn't them that done this, concentrate on Catherine". The victim McKay then faced Catherine once again when he was struck to the back of the head by the accused McFarlane. The victim McKay fell on the ground, where the accused McFarlane knelt beside the victim and punched him five (5) or six (6) times to the face. The victim McKay knelt on his knees when (he) was kneed in the face twice (2) by the co-accused Brian McCann who was standing. The victim felt his false teeth to be broken after he was kneed. The victim McKay said, "Brian it's me Pat". Police were called to the incident by the bystanders and arrived a short time later. Police witnessed the co-accused McCann to be punching the victim McKay to the legs. Police separated all parties before calling an ambulance for Catherine and the victim McKay. On the 13th of August 2015, the victim McKay attended Windsor Police Station where a signed statement was obtained. In the following weeks police attended the address of the accused McFarlane who declined to be interviewed in relation to the matter. The co-accused McCann attended Windsor Police Station where he was cautioned and escorted to Windsor Custody area, the co-accused McCann then declined to be interviewed and asked to leave. The co-accused was allegedly escorted to the foyer where he left. As a result the accused and the co-accused are now charged with the matters before the court. 1. The applicant subsequently appealed his conviction to the District Court on the grounds that he was not guilty. On 12 October 2016, Herbert J affirmed the earlier finding of guilt against the applicant made by the Local Court for the offence of AOABH. The applicant was ordered to enter into a good behaviour bond for 12 months pursuant to Section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. 2. Immediately prior to determining the applicant's appeal, her Honour stated: In this matter I have read the evidence and seen video footage in relation to the alleged offence. What occurred on this night was an absolutely extraordinary situation and one that is unlikely to be repeated. I find the appellant was much more intoxicated than he on his own assessment realised, and in a state of intoxication he ended up in a situation of extreme panic, fearing for the safety and well-being of his wife. He was searching for her for some time, running, searching the area, trying to find her. Other unidentified people were saying about the woman having been molested. When he reached the situation where he confronted the victim he was in extreme anguish. He lost control of his temper. His anger and panic, I accept, caused him to strike the victim, something he would not ordinarily have done, and being in such a state that he did strike the victim a number of times occasioning injuries, he was unable to regain his self-control. But having taken into account the fact that he is a man in his 50s, he has worked for Community Corrections for many years, he has demonstrated repeatedly the fact that he acts in a responsible appropriate manner, the fact that he has had to deal with some of the most violent, mentally ill inmates in the penal system and restrain inmates in an appropriate manner speaks highly of his character, as do the other character references. I accept it was totally out of character, is unlikely to ever be repeated and he is a man who has made a mistake in circumstances of extreme emotional anguish. As a result the outcome of this matter is that I dismissed the appeal. In relation to the matter I find defence proved but without proceeding to conviction I order that the appellant enter a good behaviour bond for a period of 12 months, without supervision. 1. In correspondence dated 30 March 2017, Mr Hamish Shearer, Director, Custodial Corrections – Metro West sought the applicant's resignation. He advised the applicant that should he not resign, his employment would be terminated. 2. In a formal response to the decision of Mr Shearer to terminate his employment dated 11 April 2017, the applicant stated in part: I am writing to plead my case and ask that the penalty imposed on me be reconsidered in respect to the following reasons. Firstly, I would like to state that I accept full responsibility for my actions on the night in question and in no way wish to minimise the events which transpired. The actions taken by me were motivated by extreme fear, stress and the overwhelming need to protect my wife, and those emotions were compounded by my intoxication. On the sixth of August 2015 myself, my wife, Catherine, and friends, including long-standing family friend, Mr Patrick McKay, attended Hawkesbury Races. It was an emotionally-charged day for everyone present, it being our first time out together since the passing of our friend and Mr McKay's wife, Carol. After the races, we all attended the Clarendon Tavern. Everyone present had consumed alcohol and it's fair to say that all in our company were intoxicated. After a time, my wife and I decided to leave and made our way outside to look for a taxi, to take us home. My wife returned inside to use the bathroom, where she seemed to take an age, and when she failed to come back I went outside looking for Catherine, but was unable to locate her. I began to panic as went back inside, shouting for her and telling my friends that I could not find her. Everyone began to search the pub and the surrounding area, anxiously calling out to her. I then heard a female voice ask for the police to be called, saying someone had been abducted. We continued the search for about 15 minutes, until we overheard that a woman's body had been found on the side of the road. Seeing people running towards the railway line, screaming Catherine's name, I followed, feeling like I couldn't breathe. When I reached the area where the woman's body was, I heard my friend Mr Brian McCann, scream the most blood-curdling and haunting scream I have ever heard. It has stayed with me til (sic) this day. I remember crying out words to the effect of "No, no, no. Please don't let her be dead, please God, let her be OK". I saw Catherine lying on the side of the road and I put my hands to my head, calling her name. In that moment I thought she was dead. Running to Catherine's side to attend her, Mr McKay was already crouching over her. I saw Catherine move and Mr McKay said "she's OK". I then saw two strange men standing nearby on the road and my first thought was that they may be responsible for this. I went to where they were standing, attempting to grab one of them and said "Did you fucking do this?" They denied any wrongdoing. I heard someone say that a woman had been molested here. I rushed back to where Catherine was and Mr McKay was still kneeling by her side, his hand appearing to be on her inner thigh. I pushed his hand away, and demanded "What the fuck you doing?" It is at this point that we began to fight, both of us throwing punches at each other and wrestling on the ground for several minutes, each one having the upper hand at times. Mr McKay and I broke apart and ceased fighting, whereupon Mr McCann and Mr McKay became involved in a physical altercation. Mr McKay later stated that Mr McCann kneed him twice in the face, causing his dentures to break. In his court statements Mr McCann said he became involved because, in his own words, "I thought he was a rapist and he was responsible for what happened to Catherine". This shows other people involved were affected, thinking and behaving in an irrational manner, by the extreme circumstances of that night. I have, and have always, accepted full responsibility for my actions that night, and my plea of not guilty was not because I was in denial of the incident, but because I did not fully agree with the statement of Mr McKay and the charges as stated. I absolutely accept that we fought, both sustaining injuries, and am sincerely remorseful for the pain and suffering caused to Mr McKay's family by my actions on the night … After attending repeat sessions with a Psychologist and receiving treatment for PTSD (which is ongoing), it has become clear to me that on the night in question, while my level of intoxication and state of panic, due to my wife's disappearance, clouded my judgement and clear thinking and caused me to act in the way that was out of character. It is something I wish never to repeat, nor a night I ever wish to relive. This reason, over the past twenty months, since the events of that night, I have addressed my alcohol consumption and drink socially only on special occasions and have limited my intake to no more than six beers on these occasions, which are few and far between. We very rarely attend social functions with friends, preferring to spend time with family, or on our own. The health of my wife and me has suffered due to the ongoing stress and anxiety resulting from legal proceedings and work matters, while trying to deal with the ongoing trauma of that night. We are both on anti-depressant medication. … I accept full responsibility for my part in the events of that evening, and am more remorseful than can be described for the hurt and pain caused to all parties. … My family and I live with the consequences of this daily. To lose my job would further compact the devastation and would ensure far-reaching and significant effects. I would humbly implore you to reconsider the decision to terminate my employment with CSNSW. Relevant legislation governing applicant's employment Government Sector Employment Act 2013 1. The Government Sector Employment Act 2013 (the GSE Act) relevantly provides that government sector employees must comply with the Act's core values of integrity, trust and accountability. The Act also considers that an employee commits misconduct when he or she is convicted for a serious offence defined to mean an offence punishable by imprisonment for life or for 12 months or more. It matters not whether the punishable offence occurred within or outside the workplace. 2. In determining the appropriate penalty for the applicant's misconduct, the decision maker considered terms of the Act, particularly ss7 and 69: Part 2 Ethical framework for the government sector 6 Objective of Part This Part: (a) recognises the role of the government sector in preserving the public interest, defending public value and adding professional quality and value to the commitments of the Government of the day, and (b) establishes an ethical framework for a merit-based, apolitical and professional government sector that implements the decisions of the Government of the day. 7 Government sector core values The core values for the government sector and the principles that guide their implementation are as follows: Integrity … (b) Act professionally with honesty, consistency and impartiality. Trust … (b) Build relationships based on mutual respect. (c) Uphold the law, institutions of government and democratic principles. … Accountability … (b) Take responsibility for decisions and actions. … 69 Misconduct—Public Service and other prescribed government sector employees (1) In this section: government sector agency means: (a) a Public Service agency, and … (b) any other government sector agency prescribed by the regulations for the purposes of this section. misconduct extends to the following: (a) a contravention of this Act or an instrument made under this Act, … (d) a conviction or finding of guilt for a serious offence. The subject matter of any misconduct by an employee may relate to an incident or conduct that happened while the employee was not on duty or before his or her employment. serious offence means an offence punishable by imprisonment for life or for 12 months or more (including an offence committed outside New South Wales that would be an offence so punishable if committed in New South Wales). (2) The person who exercises employer functions in relation to an employee of a government sector agency is responsible for dealing with any misconduct by that employee in accordance with this section. (3) The government sector employment rules may deal with the following: (a) misconduct by employees of government sector agencies, (b) the procedural requirements for dealing with allegations of misconduct by employees of government sector agencies (consistently with procedural fairness). (4) If, in accordance with those rules, there is a finding of misconduct by an employee of a government sector agency, the person who exercises employer functions in relation to the employee may take any of the following actions: (a) terminate the employment of the employee (without giving the employee an opportunity to resign), (b) terminate the employment of the employee (after giving the employee an opportunity to resign), (c) impose a fine on the employee (which may be deducted from the remuneration payable to the employee), (d) reduce the remuneration payable to the employee, (e) reduce the classification or grade of the employee, (f) assign the employee to a different role, (g) caution or reprimand the employee. (5) Proceedings and actions under this section may be taken or continued despite the employee resigning or otherwise ceasing to be an employee of the agency concerned. Any such action may be expressed to be a termination of employment even if the person has ceased to be an employee. … Government Sector Employment Rules 2014 1. Clause 40 (2) of the Government Sector Employment Rules 2014 (the Rules) relevantly provides: 40 Findings by employer (1) The employer may, in dealing with an allegation of misconduct: (a) make a finding of misconduct by the relevant employee (in which case the employee is to be notified of the finding in writing), or (b) make a finding that misconduct by the relevant employee has not occurred (in which case the employer is to dismiss the allegation and advise the relevant employee in writing). (2) The employer may not take any action under section 69 (4) of the Act in relation to an employee unless: (a) the employee is notified of the proposed action to be taken, and (b) the employee is given a reasonable opportunity to make submissions in relation to the proposed action, and (c) if any such submissions are made, the employer has taken those submissions into consideration. (3) If the employer makes a finding of misconduct in relation to an employee, the employer may, instead of taking action under section 69 (4) of the Act, require the conduct of the employee to be monitored over a specified period notified to the employee. (4) If, during that specified period, the employer is satisfied that the employee has engaged in misconduct of the same or similar kind as the misconduct the subject of the previous finding, the employer may take any action under section 69 (4) of the Act in respect of the employee. (5) In that case, the employee is not required to be given an opportunity to make submissions in relation to the action proposed to be taken by the employer. 1. Prior to determining an appropriate penalty for the applicant, Mr Shearer considered the following matters in accordance the Rules: * The conviction determined on appeal by the District Court; * The objectives of the GSE Act and Rules; * The CSNSW Guide to Conduct and Ethics 2010, in particular ss 1.1, 1.2, 2.7 and 2.9; * The NSW Police facts put before the Local Court; and * The submissions the applicant had made concerning the finding of misconduct and/or the proposed penalty. Guide to Conduct and Ethics 2010 1. The Introduction to this particular Guide relevantly states: This Guide provides standards of conduct and ethical behaviour that are expected from all CSNSW employees to ensure they carry out their work professionally and meet the expectations of the public. The Guide is not intended as a 'rule book' that will be used to initiate disciplinary processes. However, any breach of its principles may constitute misconduct. 1. In determining that the appropriate penalty for the applicant's conduct was dismissal, the respondent considered the applicant had breached the following sections of the Guide: 1.1 STATEMENT OF PURPOSE AND VALUES OF CORRECTIVE SERVICES NSW … Values Responsibility and Respect Professionalism Safety and well-being of staff 1.2 A MODEL OF PUBLIC DUTY ... b) Acting with integrity by being: Honest Obeying the law … ETHICAL PRINCIPLES IN PRACTICE … 2.7 PRIVATE CONDUCT a) Conduct whilst off duty As members of a law enforcement organisation employees should, even when off duty, act in accordance with the law and the content of this Guide. Employees need to ensure that they do not discredit themselves as private citizens or CSNSW. All employees should model exemplary behaviour and act as a positive influence in the community. Any private activity which may adversely affect an employee's ability to perform their public duty is regarded as a work-related issue. Such activity includes alcohol misuse, drug misuse, including steroids, or violent behaviour. Section 43(2)(a) of the Public Sector Employment and Management Act 2002 provides that action can be taken for misconduct which occurs when an employee is off duty. Conviction for a criminal offence may jeopardise employment, whether or not the offence was committed in the course of employment. Public sector employees must report to a senior officer if they have been charged with or convicted of a serious criminal offence, that is, an offence which is punishable by imprisonment for 12 months or more. Other work related offences should also be reported such as child related offences or a loss of licence if you are required to drive as part of your duties. … 2.9 PROFESSIONAL CONDUCT TOWARDS EMPLOYEES AND OTHERS … General Principle CSNSW employees should strive at all times to relate professionally and respectfully to colleagues and other public sector employees, contractors and members of the public, and to act with courtesy and fairness. In all dealings, employees should ensure they do not prejudice the operations, security or reputation of CSNSW. … Evidentiary Case Applicant 1. The applicant is 56 years of age. He first joined the respondent as a Correctional Officer in 1990. The applicant resigned in April 1991 to join the Royal Australian Air Force. He re-joined the respondent in February 2000 and in 2002 was appointed a First Class Correctional Officer. 2. The factual circumstances surrounding the incident in which the applicant apparently mistakenly believed that his friend and work colleague, Mr McKay had touched his wife in an inappropriate manner have been broadly canvassed above. The applicant's version of events differs to the Police facts relied upon in the Local Court. At paragraphs 28-32 of his statement, he contended: 28 … I saw McKay and he was beside Catherine. I started across the road again when one of the guys I had confronted said, "a woman has been molested here". I looked towards Catherine as I was crossing the road and it was then that I saw McKay on his knees next to Catherine, who was lying slightly on her left side, with her back to McKay. This is when I saw McKay had his right hand between Catherine's legs on her right thigh. I crossed the road and kneeled next to Catherine. McKay was kneeling on the ground on the other side of Catherine. I forcefully pushed his hand away with my left hand and said to him: "what the fuck are you doing?" 29 As I swiped McKay's hand away from Catherine's thigh, he spat straight in my face, leaned over Catherine, and grabbed me by the collar with his left hand. He then swung at me with his right hand and hit me in the middle of my face, on the bridge of my nose. 30 McKay and I started to wrestle and struggle on the ground. Catherine, who by this time had regained consciousness, sat up and was trying to separate us. She was grabbing at both of us trying to stop us fighting. A couple of times I tried to get up and he pulled me down again. While I was sitting on top of him, I was punching his arms away as he was trying to grab me and saying, "If I get up I'm going to kill you". This threat concerned me because I knew that McKay comes from the boxing family and that he is a trained boxer. I had seen him using force on inmates, so wasn't going to let him get up and beat me up. I was in fear of my safety. 31 The fight stopped as quickly as it had started and I moved and stood short distance away from Catherine. It was then that I saw McCann and McKay fighting. I saw McCann knee McKay in the face and punch him on his legs. I believe I heard McCann say to McKay: "You caused this". I then recall the Police and ambulance arriving. 31 I believe I was moderately affected by alcohol at the time of this incident. However, I was more affected by the stress caused by Catherine's disappearance. Hearing the news that a woman's body had been found lying on the side of the road caused me to stress out and become even more anxious. 1. The applicant understood that Mr McCann had been charged with assault occasioning actual bodily harm. However, that charge was dismissed and he further understood that no disciplinary action was taken against Mr McCann. 2. A copy of the transcript concerning the Local Court proceedings before Magistrate Stafford was attached to the applicant's statement. Correspondence from Mr Shearer 1. Following the District Court decision, Mr Shearer wrote to the applicant on 24 October 2016 and advised him that he was considering taking action pursuant to s 69(4) of the GSE Act. The applicant was invited to make a written submission in response within 14 days. 2. The applicant's solicitors subsequently wrote to Mr Shearer on 16 December 2016 "setting out the reasons why you should not terminate his employment after giving him an opportunity to resign". That correspondence urged Mr Shearer to consider the following: * Although the incident involved a work colleague, it did not occur in the workplace; * On appeal, her Honour Judge Herbert took into account the extraordinary circumstances of the night in question. In that regard, her Honour's statement should be considered; * Prior to the incident, the applicant and Mr McKay were good friends in and outside the workplace and socialised regularly. They have been friends for more than 25 years and that long-term friendship ended following the incident; * Upon seeing Mr McKay's right-hand was "up between his wife's legs", the applicant "reacted in a manner that… any husband would react, who thought his wife was being taken advantage of at a time when she was incapacitated"; * The applicant was not thinking clearly or rationally when he reacted in the way that he did. There is no doubt that the applicant was the aggressor and he does not deny this fact. His intoxication had affected his clear thinking and his objectivity when he saw Mr McKay with his wife; * The applicant has suffered a great deal of shame and humiliation because of his behaviour. He was shocked when he viewed the video footage of the incident. He was punished by the District Court; * The applicant has suffered a significant financial penalty in terms of lost shift and overtime penalties following the AVO brought against him following the incident. Termination of employment would compound that penalty; and * Termination would make it difficult, if not impossible for him to obtain other employment that would provide him and his family with the same level of income. 1. Mr Shearer acknowledged that the applicant's solicitors had drawn his attention to a number of references provided to the Local Court in support of the proposition that the applicant's behaviour with respect to the incident was in fact out of character. In that regard, her Honour Judge Herbert was of a similar view. A Commendation dated 11 September 2008 and an Award for Excellence presented to the applicant on 17 November 2010 were also attached to the solicitors' correspondence. 2. The parties acknowledge the fact that the GSE Act does not distinguish between off duty and on duty misconduct. While off duty and on duty misconduct may be relevant factors for determination, Mr Shearer noted in correspondence that where the criminal conduct of the employee in question is serious, issues concerning the link to the employee's employment become less relevant. 3. Mr McKay had received a blow to the back of his head. He then observed the applicant standing over him and whilst lying on his back he received several forceful punches to his face. Whilst the applicant apparently regrets the end of his friendship with Mr McKay, Mr Shearer noted in his correspondence that at no stage in the proceedings to date had the applicant expressed regret for having mistakenly set upon Mr McKay or for the pain and suffering caused to him such that Mr McKay required hospitalisation, suffered ongoing pain and had to replace his broken dentures. 4. Mr Shearer further contended that the applicant had not apologised to Mr McKay or acknowledged "the wrong done" in being physically violent towards him. The fact that the applicant pleaded not guilty in both the Local and District Courts and has subsequently maintained that plea suggests that "he has not been willing to acknowledge the wrongfulness of his actions". 5. Mr Shearer also contended the level of intoxication of the applicant and others on the night of the incident was a concern in circumstances where an employee was also unable to control his own behaviour resulting in a violent action void of any self-restraint. In that regard, no representations had been made concerning any steps taken by the applicant to address his alcohol intake or measures identified so as to enable him to exercise self-restraint when consuming alcohol. 6. Mr Shearer considered the respondent had lost trust and confidence in the applicant. The core values set out in s 7 of the GSE Act related to integrity and trust together with Guidelines: 1. 1.1 (dealing with professionalism, safety and well-being of staff); 2. 1.2 (which concerns a requirement of public duty and the need to act with integrity and honesty and obeying the law); 3. 2.7 (conduct off duty); and 4. 2.9 (the requirement to act professionally and respectfully to colleagues) were breached by the applicant 1. The applicant subsequently refused to resign from his position as directed by Mr Shearer. 2. A petition signed by more than 100 work colleagues in support of the applicant was also attached to the applicant's statement. 3. In cross-examination, Ms Graycar sought to draw the applicant's attention to the apparent inconsistency between his account of the events concerning the incident and the evidence of Mr McKay and an independent witness, Ms Triffett, whose mobile phone video footage formed part of the Police case relied upon by Magistrate Stafford in the Local Court proceedings. 4. The applicant subsequently sought to deny some elements of the evidence accepted by the Local Court: Q. Mr McFarlane I'm going to ask you a couple of questions about the incident that was the impetus for these events. I think my friend said in his opening that it was the first time you'd been out with Mr Mackay since the death of his wife wasn't it? A. I believe that's correct, yeah. Q. And I think you've said in your statement you were previously good friends? A. Yes ma'am. Q. So you don't agree then with what he had said in the criminal proceedings that you were more work acquaintances than friends? A. No ma'am, we were good friends. Q. Now it's the case isn't it that on that night in question, I'm referring here to your statement, you've got it in front of you, you've said twice I think in your statement that you were moderately affected by alcohol? A. Yes ma'am. Q. It's the case isn't it that you weren't moderately affected but extremely affected by alcohol? A. It looks like that now. I feel I was only moderately affected. Q. But when you say it looks like that now, you made your statement in the last month? A. No, I feel I was moderately affected. Q. Now you recall that in December, while the disciplinary process was ongoing, your solicitor made a submission on your behalf to the director, do you remember that, on 16 December? A. No ma'am. Q. Well if you turn to your statement at page 135, do you see that letter? A. Yes, sorry I remember that now, yeah. Q. Right okay and of course that was a submission seeking to have him reconsider the decision and this submission was made on your instructions wasn't it? A. Yes ma'am. Q. And everything in it that you told your solicitor was true? A. Yes ma'am. Q. So if you have a look at page 136 of the bundle, page 2, you say - are you with me, about just after half way down, see where the paragraph starts, "The above is a brief summary of the incident"? A. Yeah. Q. And it says, "His intoxication had affected his clear thinking and his objectivity"? A. Yeah. Q. And then see in the next paragraph it says, "Our client's behaviour on the night was influenced by his intoxication"? A. Yes. Q. And you have just told us haven't you that that statement was made on your instructions? A. Yes ma'am. Q. So which is it, you were intoxicated at the time you assaulted Mr Mackay or you were moderately affected by alcohol? A. I feel I was moderately affected. Q. But if that's the case why did you tell your solicitor to say that you were intoxicated at the time? A. Intoxicated and moderately intoxicated to me there's no, there's no - I was not highly intoxicated, I was moderately intoxicated. 1. In relation to the time and subsequent events that occurred after the applicant had arrived "at the scene", the following exchange ensued: Q. Now when you eventually located your wife by the side of the road, you walked past her, approached those men that you say Mackay had pointed to, grabbed one of them by the shirt and said, "Did you fucking do this?", that's your case isn't it? A. Yeah I actually stopped beside my wife and Mr Mackay said - but then we moved and that's when I went across and I did grab one of them. Q. Well I put it to you that the evidence is pretty clear that you did this after you'd been told by Mr Mackay that they were not the ones who had done it, "They found her. Let's concentrate on Catherine"? A. No ma'am. Q. That's what happened isn't it? A. No that's not right. Q. So you're saying that what Mackay says and Ms Triffett and what the magistrate found, all of that is wrong? A. I can only tell you what I remember ma'am. Q. Now in paragraph 28 you say, "You turned from the men and looked at Catherine and one of the men said, "A woman has been molested here"? A. Yeah. Q. You didn't hear that said did you? A. Yes I did. Q. You weren't there when that was said were you? A. Yes I was ma'am. Q. It's the case isn't it that that's something you later heard had been said not something you heard yourself? A. No ma'am. Q. Well I put it to you that what actually happened is what appears in the evidence which is that a different man, not the man in the white ute, not either of those two men, a man in a black ute made that comment and the evidence is that that was said before either you or Mr Mackay had arrived at the scene? A. No ma'am. Q. So you deny again the evidence that was given in the Court and this is - do you want me to show you where it says that in the transcript. Perhaps I will show you where it says that and you can decide whether you agree with that or not … … Q. Okay. Now, you also say in your statement at paragraph 28 that you saw Mackay on his knees next to Catherine? A. Yes, ma'am. Q. But he was standing when you saw him there, wasn't he? A. No. He was kneeling. He was kneeling beside my wife. Q. So you disagree then with the evidence that was found established in the Court that he was standing next to your wife, not kneeling? A. No, he was - a hundred per cent he was kneeling. He even admitted himself in one of his statements that he was kneeling down beside my wife. Q. Can you show me where in his statement he said that? A. I'm not sure but it's in one of his statements. I'm not sure if— … Q. He was pretty adamant, was he not, that he wasn't kneeling? A. No, he was lying, ma'am. Q. And the independent eyewitness was lying as well. Is that your case? A. She obviously never seen him. Q. She never saw him? She was-- A. She obviously never seen him kneeling down. Q. She - her evidence - well, I put it to you that she was kneeling and he was standing? A. Initially, yes. Q. Initially? A. Initially when I first got there she was sort of crouched down beside my wife's feet. Mr Mackay was hunched, stood up leaning over my wife. 1. In relation to the applicant's evidence that he saw Mr McKay touch his wife inappropriately, the following exchange ensued: Q. So when you say he had his hand on her thigh, was that when he was standing up hunched over? A. No, that's after I confronted the two men and I turned back and he was down on his knees then. Q. Well, I put it to you that he was standing all the time until you knocked him to the ground. That's the case, isn't it? A. That's totally false, ma'am. Q. And I also put it to you that it's simply not true that he ever had his hand between your wife's legs? A. That's most definitely true. It's not something that I like to admit but it's definitely true. Q. I put it to you that his hands were behind his back, weren't they? A. No, ma'am. Q. So the independent witness is lying about that as well. Is that your case? A. That's not the case. He may have had his hands behind his back at some point but when I seen him he was down on his knees and he had his right hand up my wife's skirt. Q. So in fact your evidence is that the magistrate erred when, after considering all the evidence of the eyewitnesses and she found that Mr Mackay was standing with his hands behind his back and did not touch your wife before you attacked Mr Mackay, that that finding is wrong? A. I can't tell you what the magistrate thought. I don't know why she thought what she did. All I can tell you is what actually happened. 1. In relation to the applicant's evidence that Mr McKay was aggressive towards him, the following exchange ensued: Q. And it's also the case, isn't it, that at no time did Mr Mackay spit at you? A. Yes, he did. Q. He did, and at no time did he attack you either, did he? A. Yes, he did, ma'am. Q. And at no time did he ever say to you, "If I get up, I'm going to kill you," did he? A. Three times he said it. Q. Three times he said it? A. Three times he said it, yeah. Q. You didn't say in your statement that he said it three times, did you? A. Three times. I can remember at least two but possibly three times he said what he said. Q. But you'd agree you didn't say in your statement anything about him repeating that comment, did you? A. Yes, ma'am, I did. Q. In this statement? You said he made the comment. My question was you didn't say that he made it more than once? A. I'm sure I said that-- Q. Paragraph 30, I'll take you to? A. I'm sure I said it in my - I said there, ma'am, a couple of times I tried to get up when he pulled me back down, and that's when he said, "If I get up, I'm going to kill you." Q. So you're saying that this means he said it each time you tried to get up. Is that what you meant here? A. Yeah, the couple of times, at least two, possibly three times he said it. Q. I put it to you that he never said that? A. Yes, he did, ma'am. 1. In relation to the video footage taken by Ms C Triffett that formed part of the Police case concerning the incident, the applicant conceded that he was fighting Mr Mackay: Q. Now, what you're doing with your right arm, that's punching, isn't it? A. Sorry? Q. What you were doing with your right arm, you were punching someone, weren't you, in that early part? A. Yes, ma'am, I was fighting. Q. Acknowledging that this is only a part of what transpired, it's not a full record, there is nowhere in this video, is there, that shows Mr Mackay attacking you, is there? A. If that video would've been taken twenty seconds before it would've shown him sitting on me, punching me. Q. But we don't have that evidence, do we? (No reply) Q. And when the police came it's the case, isn't it, that you said nothing to them about Mr Mackay assaulting you? A. I believe I actually said something like, "Is nobody going to check her?" I mean, my-- Q. "Is nobody going to"? A. To check her. Q. Her? A. Yeah. My wife. Q. Catherine? A. Yeah. Q. Yes, but I asked you - the question I asked you was you did not say to the police, "I was assaulted by Mr Mackay," did you? A. No, no. Q. And you did not say to the police, "Mr Mackay had his hand on my wife's thigh or between my wife's legs," did you? A. No. Q. And you said nothing to the police about being spat at by Mr Mackay? A. No. Q. Nor about him threatening to kill you? A. No. Q. Either once or three times? A. No. Q. No. It's the case, isn't it, that what you said to the police when they came was that you were trying to get her up and take her home? A. I possibly could've said that. Yeah, I possibly could've said that, yeah. 1. The applicant contended that when he "swiped McKay's hand away from Catherine's thigh", Mr McKay became aggressive and "spat straight to my face". Moreover, the applicant further denied that he was the aggressor. He feared the safety of his wife and himself. The following exchange subsequently ensued concerning correspondence dated 16 December 2016 from the applicant's solicitor to Mr Shearer: Q. Now, the picture that we get reading those paragraphs is that it was Mr Mackay who was the aggressor, wasn't it? A. Yes, ma'am. Q. But it was you who was the aggressor, wasn't it? A. I don't believe so, ma'am, no, not - not initially. Q. Can I take you back to page 136 of that bundle. You will remember we looked at this document before. It's the letter from Mr Jaloussis-- A. Yes. … "The above is a brief summary of the incident. His intoxication affected his clear thinking. There is no doubt that our client was the aggressor and he does not deny this fact." Well, Mr McFarlane, which is it? A. Initially I wasn't the aggressor. I then became the aggressor when I started to fear more for my safety and the safety of my wife. Q. When you say initially-- A. Initially Mr Mackay spat in my face and threw the first punch. I didn't need to retaliate at that point. I didn't need to carry on about that. Q. …Why would you then, if that's your case, have instructed your - and I'll withdraw that question. It's the case, isn't it, then that you've changed your story from what you told the solicitor to-- A. No, ma'am. Q. But you told - you agree that you told the solicitor that you were the aggressor and you denied this - you do not deny this fact? A. No, no, I do believe that I was aggressive. Q. So you're saying you were aggressive but you were not the aggressor? A. Not initially but I was at - I done my part in that. I don't deny doing my part in that and being aggressive during my part. Q. So would you now say that this statement of your solicitor is not entirely accurate? A. No, it's accurate, ma'am, yeah. Q. So they're both accurate? A. Yeah. Q. He was the aggressor and you were the aggressor? A. We were both aggressive, yes. Q. I see. Well, I put it to you that you were the only aggressor in this situation? A. No, ma'am. 1. The applicant agreed that he had called Mr McKay "Bindley's bitch" during the course of the altercation. He also agreed Mr Bindley was a fellow officer against whom he had lodged a grievance in 2015 and had subsequently refused to attend mediation with him: Q. And I suggest to you the real reason that you were so angry with him was you were extending some workplace disagreement into what had been a social occasion? A. That had nothing to do with that night. That was nothing. Q. So it was just a coincidence that you called him "Bindley's bitch" while you were attacking him for having his hand on your wife's-- A. No, because what he said to me was, "You wouldn't have done that to Bindley." He says, "You couldn't have done that to Bindley." Q. I put it to you that he didn't say that? A. He did say that, ma'am, he did. 1. With reference to that part of his statement where he deposed that he had sought treatment from a psychologist and had been diagnosed with PTSD, the applicant contended that he had given his solicitor "some documentation that I got my psychologist to write out". He also understood that his psychologist would be subpoenaed if required. 2. In re-examination, the applicant recalled he had given his current or previous solicitor some documents concerning his PTSD diagnosis dated 6 and 10 October 2016 (subsequently tendered). The applicant also agreed that he had read McKay's Police statement and particularly the sentence, "I approached the group and realised that it was Catherine and knelt down next to her". Respondent Mr Julian Baker 1. The respondent's case comprised a statement filed by Mr Julian Baker, solicitor setting out a short summary of the case together with a number of documents dealing with the Local and District Court proceedings, applicable legislation, Codes of Conduct, various correspondence between the parties and like documents. 2. The thrust of Mr Baker's evidence concerning the respondent's case has been set out above: 1. A narrative detailing the events that occurred immediately before the assault and following the assault near the Clarendon Tavern on 6 August 2015; 2. Video footage of the incident put against the applicant in the Local Court; 3. The Local Court conviction for the offence of Assault Occasioning Actual Bodily Harm; 4. The fact that the Magistrate did not accept the applicant's claim that immediately prior to the assault Mr McKay had been observed by the applicant placing his hand on Mrs McFarlane's upper thigh area; 5. The Magistrate had dismissed the applicant's claim that the assault was initiated in self-defence or in defence of his wife; 6. The 100 hours Community Service Order sentence; 7. The applicant's not guilty plea; 8. The subsequent 12 month Apprehended Violence Order for the protection of Mr McKay ; 9. The District Court decision to dismiss the applicant's not guilty plea appeal and confirm the findings of the Local Court that the offence had been proven beyond reasonable doubt; 10. The District Court allowed the applicant's appeal on sentence and varied the sentence to a 12 month good behaviour bond without conviction; 11. Transcripts of the Local and District Court Proceedings; and 12. Correspondence between Mr Shearer, the applicant and his solicitors. 1. It was Mr Baker's evidence that the applicant's dismissal was not harsh, unjust or unreasonable and was appropriate having regard to the nature and seriousness of the misconduct committed by him. 2. Mr Shearer had given proper consideration to the applicant's written representations, including the length of his employment and all the material submitted by him in support of his case. The applicant was also afforded procedural fairness. 3. Cross-examination was confined to matters related to the procurement of the video footage relied upon by the respondent in these proceedings and elsewhere. Mr Baker confirmed the following: 1. He had not spoken to the person who took the footage nor to anyone from the New South Wales Police Force about the footage; 2. The video footage was obtained through the Director of the Corrective Services New South Wales investigation branch and presumably through Police channels. He was unaware whether anyone had interfered with the video footage; and 3. He made no inquiries concerning the "cut" that appears about 20 seconds into the footage. He was also unaware of the actual time the footage commenced and finished. 1. In re-examination, Mr Baker confirmed that during the course of the Local Court proceedings, Ms Triffett had explained that the "cut" was due to the fact that she took two 10 second Snap Chat recordings because she had run out of memory on her phone. Submissions 1. I have given consideration to the submissions put on behalf of the applicant and respondent. The thrust of those submissions was essentially reflected in evidence and subject in the main to quite vigorous cross-examination. Applicant 1. The applicant's primary position is an order for reinstatement. An alternative punishment to dismissal was available to the respondent under the GSE Act. 2. The applicant urged the Commission to give consideration to his length of service, the financial impact of dismissal and his unblemished service record together with the following matters that he considered Mr Shearer had failed to properly consider: 1. The applicant had been unable to find employment since his dismissal. He was 55 years of age at the time of his dismissal and was unlikely to find a position that would provide him with similar income to that which he earned with the respondent; 2. He had lost approximately $25000 in allowances and overtime and a similar amount as a result of the Apprehended Violence Order granted to protect Mr McKay; 3. The applicant and his wife, also a Correctional Officer had structured their financial commitments around overtime and allowances. They were now struggling to meet those commitments, particularly with respect to his "large mortgage and the vehicles I had bought my children to help them attend professional training and university"; and 4. The incident had caused him to seek treatment from a psychologist who subsequently diagnosed he was suffering Post-Traumatic Stress Disorder. 1. The applicant also considered Mr Shearer did not give sufficient consideration to the following: 1. The circumstances in which he found himself in on the night of the incident; 2. The fact that he was distressed and anxious about his wife's disappearance and welfare when he saw her lying on the ground; 3. The condition in which he found his wife; 4. His honest belief that Mr McKay was indecently assaulting his wife while she was semi-conscious; 5. The fact that he had no other reason for fighting Mr McKay; 6. The fact that his conduct on the night of the incident was totally out of character; 7. The comments concerning his conduct made by Justice Herbert of the District Court in her decision; 8. The fact that he had already served the sentence of 100 hours of community service; and 9. The Commendation he had received for his professionalism and commitment to his duties. Respondent 1. The respondent was opposed to re-instatement and considered the applicant's overall misconduct warranted his dismissal. The application should be dismissed on the grounds that: the dismissal was not harsh, unreasonable or unjust. 2. The respondent considered reinstatement untenable given the applicant's conduct was both contrary to the law and the Code of Conduct and Ethics. The respondent also contended that it had lost trust and confidence in the applicant. 3. The applicant has sought to challenge the findings made by the Local and District Courts in these proceedings. Those findings were determined on the criminal standard of proof which is proof beyond reasonable doubt. Clearly, there is no need for the applicant's misconduct "to be proved again in these proceedings". 4. There is a considerable body of case law to support the proposition that it is not appropriate for courts or tribunals to go behind a finding of guilt made by a court of competent jurisdiction and revisit the facts upon which such a finding was based: Commissioner of Australian Federal Police v Butler and another [1989] FCA 473; 91 ALR 293 at 301 per Hill J; Wittensleger and Australian Securities and Investments Commission [2015] AATA 902. 5. The gravity of the applicant's misconduct is a highly relevant consideration: Department of Health v Perihan Kaplan [2010] NSWIRComm 65. In this matter, the applicant's conduct was of significant gravity so as to warrant dismissal for the following reasons: 1. The conduct involved a serious assault and followed the excessive use of alcohol; 2. The Magistrate considered the assault very serious and stated when sentencing the applicant. "You punched a man six times to the head while he was on the ground"; 3. The applicant has expressed no remorse for his conduct. Rather, he has simply indicated regret for the impact that conduct has had on him. He further maintains Mr McKay is to blame for initiating the violence, a claim that was rejected by the Magistrate in the contested proceedings before the Local Court; 4. While the assault occurred during a social occasion, it impacted on the workplace because the victim was a fellow officer of the applicant and as a result of the incident, the applicant had to be reassigned to a new workplace so as to ensure he and the victim were no longer working together; and 5. The applicant's conduct was manifestly in breach of the respondent's Guide to the Code of Conduct and Ethics. That Code requires employees of the respondent to demonstrate exemplar conduct when off duty. 1. The applicant's District Court appeal failed to overturn the finding of the Local Court that he was guilty of AOABH. That offence carries a potential penalty of 12 months imprisonment or more. The District Court did, however, allow the appeal on sentence which resulted in a good behaviour bond with no conviction recorded. That said, the applicant's conduct meets the definition of misconduct under s 69 of the GSE Act being "a conviction or finding of guilt for a serious offence". It matters not whether the conduct that gave rise to the finding of guilt for a serious offence occurred outside work. Section 69 relevantly states that the incident or conduct deemed to be misconduct can occur when an employee is not on duty. 2. Moreover, the Government sector core values set out under s 7 of the GSE Act requires employees to act professionally with honesty, consistency and impartiality. Those core values also require employees to take responsibility, uphold the law, build relationships based on mutual respect and take responsibility for their own decisions and actions. The applicant's conduct and his subsequent conduct commencing with the Local Court proceedings failed to recognise or meet these requirements. Consideration Statutory Context 1. In deciding whether a dismissal is harsh, unjust or unreasonable, the Commission must take into account the following procedural and substantive matters set out in s 88 of the Act: 88. In determining the applicant's claim, the Commission may, if appropriate, take into account: a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and c) whether a warning of unsatisfactory performance was given before the dismissal, and d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and e) whether or not the applicant requested reinstatement or re-employment with the employer, and f) such other matters as the Commission considers relevant. Tripartite Test 1. When determining whether a particular dismissal is harsh, unreasonable or unjust, the Commission is required to deal expressly and specifically with the tripartite statutory test. In Outboard Marine Pty Ltd T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183, the Full Bench observed that in order to avoid the possibility of misunderstanding or error, the Commission should state explicitly the basis upon which it is considered that a dismissal was unfair or not unfair. That is to say, whether the dismissal was or was not harsh, unreasonable or unjust. 2. The words "harsh, unreasonable or unjust" set out in s 84(1) are ordinary non-technical words which are intended to apply to an infinite variety of circumstances where employment is terminated. In Corrective Services NSW v Danwer [2013] NSWIRComm 61, the Full Bench observed at [21]: The Industrial Relations Act 1996 (IR Act) provides for certain remedies where the Commission finds that the dismissal of an employee from employment was "harsh, unreasonable or unjust": see s 89. It has been said those words constitute a "tautological trinity" (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a "tautological trinity". As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. (See also NUW (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388; (2005) 146 IR 441 at [64] and Department of Health v Perihan Kaplan [2010] NSWIRComm 65 at [25] - [32]). Was the dismissal harsh, unjust and unreasonable? 1. At the outset, the applicant's conduct was extremely serious and was treated so by the Local and District courts and the respondent. 2. No substantive issues concerning procedural fairness were identified in proceedings. The applicant was represented by his Union and/or solicitors and was given ample opportunity to respond to the misconduct allegations put against him through his Union and solicitors. 3. On the material and evidence before the Commission, the applicant has been afforded a "fair go all round": Loty and Holloway v Australian Workers Union 1971 AR 95 at 99. 4. There can be no argument that the applicant's conduct that gave rise to his dismissal was very serious misconduct. That conduct could have resulted in dire consequences for Mr McKay. 5. Whether the applicant's dismissal was harsh, unjust or unreasonable must be decided on the facts of the case. The Commission does not stand in the shoes of the employer and determine what action it would take in the circumstances. In Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685, Moore J stated: In my opinion, the evidence does establish that the employer had a valid reason for terminating the employment of Mr Walton. I should, however, make plain - and this has been made plain in many cases decided by this court - that it is not the court's function to stand in the shoes the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee's capacity or conduct, and in these proceedings I have concluded it did. 1. Where the Commission considers the dismissal was a disproportionate and unreasonable response to the employee's conduct, a finding that the dismissal was unjust or unreasonable may be made. The Commission is required to make that finding based on an assessment of the evidence before it and whether, on the balance of probabilities, the conduct alleged actually occurred. Was the dismissal unjust or unreasonable? 1. In this particular case, both the Local and District Courts have determined the applicant's guilt arising from the assault that occurred on 6 August 2015 did occur "beyond reasonable doubt". The nature of the applicant's conduct that ultimately gave rise to his dismissal was criminal conduct. There was nothing peripheral about his conduct which was the basis for the findings made by Local and District Courts. 2. It is not the role of this Commission to go "behind" a conviction and examine the facts upon which it was based in order to potentially form a conclusion of fact concerning whether or not the applicant was the perpetrator of the assault, a finding which would run counter to those findings of the Local and District Courts which have considered all of the evidence relevantly put by the accused and the prosecution at trial. 3. It is also a matter of public policy that the applicant's conviction is a matter for the criminal law and its procedures. In Wittensleger at [12], the Tribunal considered that it could not go behind a conviction and examine the facts on which it was based. Rather, the Tribunal determined it was bound to accept the facts as found by the District Court: It is well-established that the Tribunal cannot go behind a conviction and examine the facts on which it is based: Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 5 ALD 135; Safffron v Federal Commissioner of Taxation (No 2) [1991] FCA 363; (1991) 30 FCR 578; 102 ALR 19 at 581 [22]. Consequently, in deciding these review applications Tribunal must accept the facts as found by Judge Curthoys in his sentencing remarks, as set out immediately above. 1. The applicant's conviction was the trigger for the respondent to commence consideration of an appropriate penalty under s 69 of the GSE Act. The definition of "misconduct" in s 69(1) of the GSE Act expressly provides for after hours and off duty conduct. In that regard, the decision of Commissioner Murphy in Hansen v Secretary of the Department of Transport – as head of the Transport Service and exercising the employer function of staff of Roads and Maritime Services [2016] NSWIRComm 1011 is authority for that proposition. 2. The applicant's misconduct was also a clear breach of s 7 of the GSE Act which sets out the core values for public sector employees and the respondent's Guide to the Conduct and Ethics 2010 which ostensibly provides a code of conduct for employees. The applicant was bound to comply with those policies. In that regard, the High Court has determined that the ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust: Concut Pty Ltd v Worrell and Another (2000) 103 IR 160 per Kirby J at 172. 3. The position of Correctional Officer First Class is a relatively senior custodial position which carries with it responsibility, a certain degree of independence and autonomy. It is also apparent to me that the position requires a high level of trust within the employment relationship. As the Full Bench observed in Perkins v Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 at 191: … trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause. . . The implication is not confined to employers; it extends to employees: see for example Blyth Chemicals Limited v. Bushnell [1933] HCA 8; (1933) 49 CLR 66 at pp.81 and 82 and North v Television Corporation Limited (1976) 11 ALR 599 at p.609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based … 1. Reluctantly, I have a formed the view that the applicant's conduct when viewed globally has effectively destroyed the trust and confidence that the respondent is entitled to expect in the employer/employee relationship with him. 2. The applicant was required to observe the GSE Act, workplace policies and directives such as the Guide and policy directives. Such policies and directives represent a lawful order that compels compliance. 3. No evidence was led to the effect that the applicant was unaware of the respondent's policies concerning employee conduct and expected standards of behaviour both at and outside work. 4. The requirement to observe workplace policies (in this particular case concerning workplace safety) was considered by a Full Bench of the Fair Work Commission in Parmalat Food Products Pty Ltd v Walilo: FWAFB [2011] 1166 at [18] – [19]: [18] In our view this case raises important questions about the respective rights and obligations of employees and employers in relation to safety requirements at the workplace. Employers have important statutory obligations to maintain a safe place of work. Those obligations have a high profile in NSW. Establishing and enforcing safety rules are an important obligation, a breach of which can lead to serious consequences. [19] In this case the employer considered, and established to the satisfaction of the Commissioner, that Mr Wililo had breached its safety rules and his conduct amounted to serious misconduct. Clearly disciplinary action was necessary and appropriate because a failure to do so sends a message to the workforce that safety breaches can occur with impunity. The application of the unfair dismissal provisions to this case is a matter of general importance and in our view clearly attracts the public interest. We therefore grant permission to appeal. (emphasis added) 1. The applicant's conduct was very serious. Clearly, the intention of Parliament in making the GSE Act was to provide the respondent with discretion to consider a hierarchy of penalties to apply in circumstances where the "serious offence" is an offence punishable by imprisonment for 12 months or more, as was the case here. 2. Accordingly, having considered all the material put before the Commission by the parties, I am unable to determine that the applicant's dismissal was unreasonable unjust. 3. The Full Bench at [24] also considered that where findings had been made that an applicant had been afforded procedural fairness and there was valid reason for termination, it would only be in circumstances where significant mitigating factors were present that a particular dismissal could be determined "harsh": … The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open. Was the dismissal harsh? 1. Every dismissal has the capacity to impose a level of harshness on the employee who has been dismissed. 2. In Kaplan, the Full Bench considered the question of harshness and at [26] to [29] made a number of observations: [26] One ground relied upon for this challenge was predicated upon a legal proposition that a dismissal which was based upon conduct by an employee, which constituted a breach of a fundamental and essential term of the contract of employment, "would necessarily not be harsh". No authority was given in support of that proposition except for an authority which was said to demonstrate that, in the contemporary common law of employment, an implied term may be found in every employment contract that the employee owes the employer a duty not to act in a manner likely to destroy or seriously damage the relationship of trust and confidence between them: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2007) 69 NSWLR 198. The appellant's contention would appear to be that a finding of harshness under s 84(1) could not be made in circumstances where an employee had been lawfully dismissed for breach of such a term. It was also suggested that that approach was mandated because the employee's conduct in that context would be a repudiation of the contract. 27 The difficulty with this approach, as opposed to one which would have the nature of an employee's misconduct weighed against mitigating factors to determine, inter alia, whether a dismissal was harsh, is that it stands in the face of the statutory scheme which requires the Commission to consider whether the dismissal was harsh, unreasonable or unjust. There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 at [99] ('Loty'), that the exercise of the Commission's powers in relation to unfair dismissals (now found in Part 6 of Ch 2 of the Act) requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" (Loty at 99). In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". To similar effect, a Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [71] ('Little') stated: The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate "justification" in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act. 28 This conclusion must also follow from the very meaning of the concept of "harshness" within s 84(1). The words "harsh, unreasonable or unjust" in s 84(1) are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at [467] ("Byrne"), per McHugh and Gummow JJ, (applying Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at [28]). The appellant's acceptance that the expression 'harsh' would bear the meaning "disproportionate to the gravity of the misconduct" (see Byrne at [465]), necessarily brings with it the conclusion that a breach of an employment contract or even a repudiation of it will not be determinative of a finding under s 84(1) of the Act as to whether the dismissal was harsh. So, too, does an acceptance (see Byrne at 465) that the personal circumstances of a dismissed employee may be also brought into account. 29 We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows: In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. 1. In determining whether the applicant's dismissal was harsh, I have taken into account all the evidence and submissions put by the parties including the mitigating factors put forward on behalf of the applicant. 2. Evidence was led that the applicant's dismissal had adversely affected his economic and financial circumstances, family and personal relationships amongst a number of other circumstances, including the fact that given his age, he will find it difficult to find work. 3. The incident also caused the respondent to make a number of operational changes to accommodate the applicant and Mr McKay. 4. In determining whether the termination of the applicant's employment was harsh, unreasonable or unjust, I have taken into account his age, tenure and employment record. I have also taken into consideration the various comments made by Herbert J of the District Court. Against that backdrop, I have determined that the gravity of the applicant's conduct outweighs those mitigating factors. 5. I have also taken into consideration the applicant's persistent failure to acknowledge any culpability before the Local and District Courts. 6. The applicant's general demeanour in the witness box impressed me as being hesitant and evasive. He expressed difficulty in responding to some fairly general propositions. I have very carefully reviewed the CCTV footage of the incident. Irrespective of the criticism pressed by the applicant concerning that material, that evidence cannot be disputed. The CCTV footage clearly shows the applicant assaulted Mr McKay in a reckless manner while his head was on the ground. 7. In consideration of the evidence, material and submissions before the Commission, I find that the applicant's dismissal was not harsh in all the circumstances of this particular case. It follows that the applicant's dismissal was not harsh, unreasonable or unjust. Orders 1. The application is dismissed. J D Stanton Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 November 2018