Industrial Relations Commission New South Wales Medium Neutral Citation: Michael Evans v Industrial Relations Secretary on behalf of the Department of Justice (Corrective Services NSW) [2018] NSWIRComm 1075 Hearing dates: 30 and 31 October 2018 Date of orders: 29 November 2018 Decision date: 29 November 2018 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The appeal is dismissed Catchwords: PUBLIC SECTOR DISCIPLINARY APPEAL – correctional officer dismissed following convictions for out-of-hours criminal conduct – principles to be applied on appeal – misconduct found – mitigating factors considered – decision to dismiss upheld Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1) Government Sector Employment Act 2013 (NSW) ss 47, 50, 69 Industrial Relations Act 1996 (NSW) ss97, 98, 100C, 100D Liquor Act 2007 (NSW) s 77(4) Cases Cited: Calman v Commissioner of Police (1999) 73 ALJR 1609; [1999] HCA 60 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 Maritime Services Board v Murray (1993) 52 IR 455 Marroun v State Transit Authority [2017] NSWCA 273 Secretary, Department of Justice v Schoeman (2014) 86 NSWLR 749; [2014] NSWIRComm 40 Category: Principal judgment Parties: Michael Evans (Appellant) Industrial Relations Secretary on behalf of the Department of Justice (Corrective Services NSW) (Respondent) Representation: Counsel: R Reitano (Appellant) A Douglas-Baker (Respondent) Solicitors: McNally Jones Staff (Appellant) Professional Services Branch, Corrective Services NSW (Respondent) File Number(s): 2018/188395 Judgment 1. Michael Evans, the appellant, was employed by the Department of Justice as a First Class Correctional Officer with Corrective Services NSW ("CSNSW"). He was employed at the Goulburn Correctional Centre. On 13 November 2017 he was involved in an incident outside of work hours at a hotel in Goulburn, which resulted in him being charged with two criminal offences. He pleaded guilty to those offences. He was convicted and placed on a 12 month good behaviour bond, and fined $500. 2. As a consequence of those convictions, CSNSW terminated Mr Evans' employment on and with effect from 29 May 2018. 3. Mr Evans appealed the decision to terminate his employment, pursuant to s 98 of the Industrial Relations Act 1996 (NSW) ("IR Act"). He seeks reinstatement to his position. 4. The hearing of this matter took place on 30 and 31 October 2018. Mr Evans was represented by Robert Reitano of counsel. The respondent was represented by Amy Douglas-Baker of counsel. Proper respondent 1. In its written submissions the respondent noted that the proceedings had been brought against "Corrective Services NSW", while the proper respondent to the appeal is the Industrial Relations Secretary, pursuant to s 50 of the Government Sector Employment Act 2013 (NSW) ("GSE Act"). Although the documents filed by the parties for the hearing correctly identified the proper respondent, I observed to counsel during the hearing that no direction appeared to have been given to formally correct the name of the respondent. The parties expressed no objection to me giving such a direction and I will do so. Factual background 1. There is no relevant factual contest between the parties. 2. Mr Evans is 49 years of age. 3. Mr Evans commenced employment with CSNSW in October 2000, originally at the Long Bay Correctional Complex. In 2001 he transferred to the Goulburn Correctional Centre. Mr Evans became a First Class Correctional Officer in about 2003. 4. On 16 April 2002 there were riots at the Goulburn Correctional Centre. Mr Evans worked a double shift that day. 5. In 2003 Mr Evans was diagnosed with depression and he has been taking anti-depression medication since that time. He attributes his depression to the riots in 2002. 6. Between 1998 and 2013 Mr Evans pleaded guilty to four charges of driving with a prescribed concentration of alcohol ("PCA"). The dates on which he was convicted and sentenced were 23 December 1998, 25 May 2006, 20 February 2008 and 9 January 2013. 7. Mr Evans' disciplinary history at CSNSW includes the following: 1. from 3 December 2011 he was directed to be subject to random breath testing in the workplace following a positive breath test recorded when he was on duty that day; 2. on 26 April 2013 he was reprimanded and fined $500 as a result of the conviction for the PCA offence on 9 January 2013. In addition, the period for which he was to be subject to random testing in the workplace was extended. Mr Evans was advised of this disciplinary action in a letter from Brian Kelly, the Assistant Commissioner, Custodial Corrections for CSNSW, dated 26 April 2013. That letter informed Mr Evans that should he come to Mr Kelly's attention again, Mr Kelly "may take more serious action including consideration of dismissal from the Public Service"; and 3. from 21 March 2014 he was placed on a performance management plan, monitoring all future absences from work and the provision of evidence for sick leave days, following alleged excessive absenteeism and engagement in other paid employment. 1. As a consequence of the events referred to at [12(1)] above, Mr Evans was referred for an alcohol and other drug assessment and for specialist counselling. He attended six counselling sessions between February and April 2012. According to a report dated 20 April 2012 prepared by Bruce Schubert, a registered psychologist, Mr Evans stated during the course of those counselling sessions that the breath test result in 2011 served as a "wake up call"; Mr Schubert addressed with Mr Evans the psychological, behavioural and physical effects of alcohol over-use and increased Mr Evans' understanding of how alcohol metabolises in the system as well as the connection between his depression and his reliance on alcohol to relieve his feelings of being depressed; and, as at 20 April 2012 Mr Evans was found to have demonstrated the necessary motivation to change his use of alcohol. 2. On the evening of 13 November 2017 the following events took place: 1. at about 7.28pm Mr Evans approached the TAB counter at the Tattersalls Hotel in Goulburn and presented a winning betting ticket to staff behind the counter; 2. for reasons related to new equipment which had been installed, Mr Evans was unable to see the amount he was due to collect and raised his voice with staff and swore a number of times; 3. the manager of the hotel, Sean Griffiths, who was seated nearby, got up and walked to the TAB counter and from behind the bar spoke to Mr Evans; 4. Mr Evans made some personal comments directed to Mr Griffiths and concerning Mr Griffiths' alleged involvement in closing another local hotel. Mr Evans also said words to the effect "fuckwits like [Griffiths] were ruining the town"; 5. Mr Griffiths noticed that Mr Evans was moderately affected by alcohol or another substance and was unable to reason with Mr Evans; 6. Mr Griffiths paid Mr Evans for the TAB ticket and told Mr Evans to leave the premises; 7. Mr Evans continued to verbally abuse Mr Griffiths and attempted to entice Mr Griffiths to go outside and sort it out; 8. Mr Evans threatened to punch Mr Griffiths' "fucking head in"; 9. Mr Griffiths remained behind the bar through fear of being assaulted by Mr Evans; 10. Mr Griffiths told Mr Evans to leave the premises on at least three occasions and warned him that if he failed to leave, the police would be called and he would receive a fine; 11. Mr Evans moved from the TAB counter to the main bar and continued to verbally abuse Mr Griffiths and swear. He then picked up a bottle from the bar and started to raise it. Mr Evans' partner intervened and made Mr Evans put the bottle down; 12. Mr Evans continued to yell and swear at Mr Griffiths and a family seated nearby were forced to move their children away; 13. at about 7.35pm Mr Evans and his partner started walking towards the exit when Mr Evans suddenly stopped and yelled at Mr Griffiths who was still behind the bar area. Mr Evans then walked from the public area to the restricted area behind the bar where Mr Evans pushed two fingers of his left hand towards Mr Griffiths' shoulder. A male patron intervened; 14. Mr Evans then left the premises; 15. police arrived on the scene minutes later. They attempted to speak to Mr Evans but he was "belligerent and argumentative"; 16. police explained that they were investigating an incident at the Tattersalls Hotel and that the victim had disclosed intimidation and assault offences and Mr Evans responded, "I don't give a fuck, I'm going"; 17. Mr Evans opened the car door and police took hold of Mr Evans and informed him that he was under arrest for assault; 18. Mr Evans was directed to keep his hands on the roof of the car but tried repeatedly to pull his arms away and made threats of assault if police did not let him go and so Mr Evans was handcuffed; 19. Mr Evans said to police, "take these fucking things off and I fucking have youse" [sic]; 20. police kept hold of Mr Evans, who was facing the vehicle, and Mr Evans said to police, "I know my fucking rights" and pushed himself away from the vehicle and his head started to move towards police; 21. police physically restrained Mr Evans against the vehicle and Mr Evans pretended to collapse and fall to the ground and his shirt was ripped as he fell to the ground; 22. Mr Evans then pressed his head against the tyre of the vehicle and claimed to have a head and hip injury but refused to allow police to check any injury; 23. an ambulance was summoned, no sign of physical injury was found and Mr Evans refused the Panadol offered by ambulance officers; and 24. Mr Evans was conveyed to Goulburn Police Station where he declined to say anything to police and did not supply his details to police (the police establishing his name and date of birth through the assistance of his partner). 1. As a result of these events Mr Evans was charged by police with 2 offences: 1. "stalk/intimidate intend fear physical etc harm (personal) T2", in breach of s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW); and 2. "excluded person fail to leave premises when required", in breach of s 77(4) of the Liquor Act 2007 (NSW). 1. CSNSW became aware of the charges on 14 November 2017. 2. In a letter dated 20 November 2017 Ian Farquhar, then the Director, Custodial Operations – South for CSNSW, advised Mr Evans that as a result of the events of 13 November 2017 he was suspended from duty with pay. The letter directed Mr Evans to show cause why his salary should not be withheld during the period of suspension. 3. In an email dated 28 November 2017, sent in response to Mr Farquhar's letter of 20 November 2017, Mr Evans stated that he argued with Mr Griffiths regarding a lack of service at the hotel; he left the hotel of his own accord; he was very embarrassed and surprised to be charged with the two offences; the incident was entirely out of character for him, and he reacted to a disparaging and offensive comment about his appearance; and, he would be strongly defending the charges at court. Mr Evans denied that he was a violent person. He stated that the charges were not work-related and would have no effect on his ability to perform his duties. Mr Evans also noted that during 18 years of service with CSNSW he had never had any disciplinary action or incidents similar to this. 4. The outcome was that Mr Evans remained suspended with pay. This continued to be the case until the termination of his employment. 5. On 6 December 2017 Mr Evans pleaded guilty to the charges before the Goulburn Local Court. The matter was listed for sentence on 10 January 2018. 6. By letter dated 19 December 2017, served on Mr Evans on 22 December 2017, Mr Farquhar informed Mr Evans of allegations of misconduct against him. Those allegations were based on the "Police Facts Sheet" related to the charges (as iterated at that time), a copy of which was enclosed with the letter. Mr Farquhar further informed Mr Evans that: 1. the alleged actions disclosed in the Police Facts Sheet may breach clause 7.1 of the Department of Justice Code of Ethics and Conduct ("Code of Ethics"), which was quoted as follows: "As members of a public sector organisation all employees must, even when off duty, act in accordance with the law and the content of this code. In so doing employees must ensure that they do not being [sic: bring] discredit to themselves as private citizen or to the Department, and that they model exemplary behaviour and act as a positive influence in the community. Employees should be aware that unlawful or unprofessional conduct, even in a private capacity, which may damage, or has the potential to damage, the reputation of the Department, may constitute misconduct and attract action by the Department in accordance with s 69(4) of the Government Sector Employment Act 2013. Section 69(1) of the Government Sector Employment Act 2013 provides that action can be taken for misconduct which occurs when an employee is off duty or before his or her employment." 1. Mr Farquhar had decided to proceed with the matter as allegations of misconduct under s 69 of the GSE Act; and 2. Mr Evans was invited to make a statement in response to the allegations. 1. On 4 January 2018 Mr Evans provided a written response to the allegations of misconduct. In his letter he stated that: 1. he had never before had charges like these issued to him and he was not a violent person; 2. his solicitor had written to the police prosecutor to have several statements in the brief changed or omitted to reflect the true events of the evening; 3. the charges were not work-related and would not affect his ability to perform his duties; 4. he has 18 years' service with no disciplinary action against him; 5. his solicitor advised him not to reply to the allegations as they were not a true reflection of the events of the evening; and 6. it was completely out of character for him to engage in such behavior. 1. On 10 January 2018 Mr Evans was sentenced in the Goulburn Local Court. At that time a New South Wales Police Facts Sheet was tendered to the court ("Agreed Police Facts"). The Agreed Police Facts, on which Mr Evans relied in the proceedings before the Commission, differed in three respects to the version enclosed with Mr Farquhar's letter of 19 December 2017. They were as follows: 1. amending the reference to the bottle that Mr Evans had raised from "glass display bottle" to "bottle"; 2. removing a sentence alleging that Mr Griffiths had told Mr Evans to leave the premises a further 3 times and he had refused to do so; and 3. removing allegations that Mr Evans had physically assaulted Mr Griffiths by grabbing his shirt collar. 1. I note for the sake of clarity that the description of the events of 13 November 2017 contained at [14] above is drawn from the Agreed Police Facts. 2. For the offence under the Crimes (Domestic and Personal Violence) Act Mr Evans was directed to enter into a good behavior bond for 12 months. For the offence under the Liquor Act he was fined $500. 3. On 1 February 2018 Mr Evans sent an email to Julianne Taverner of CSNSW's Professional Services Branch. This was sent in the context of an exchange concerning Mr Evans' continuing suspension from work. In his email Mr Evans stated as follows: "In relation to the misconduct investigation I would like to reiterate that the facts contained in the paperwork served on me on the 19th of December 2017 are inaccurate. There were many changes made to the original police brief that was presented to the court to reflect the true events of that night. I wish to make it clear that there was no assault of any staff member at the hotel. I did not pick up any glass bottle during the time at the hotel and was not belligerent towards the police. The brief presented to the court reflects this." 1. In a letter dated 5 February 2018 Mr Farquhar informed Mr Evans that he (Mr Farquhar) had formed the view that Mr Evans had engaged in misconduct on the basis of his pleas to the two offences on 6 December 2017. Mr Farquhar stated: "I consider that your extensive record of offending since 2006, combined with your failure to acknowledge the seriousness of these recent charges, suggest that you may no longer be fit to remain employed by CSNSW. I also note that you have failed to show any appreciation of the mandatory requirement in the Department of Justice Code of Ethics and Conduct that all employees must, even when off duty, act in accordance with the law and the content of the Code. Employees should also ensure that they do not bring discredit to themselves as private citizens or to the Department, and that they model exemplary behaviour and act as a positive influence in the community. I consider that you have failed to meet these expectations." 1. In the letter Mr Farquhar advised Mr Evans that the action he proposed to take under s 69(4) of the GSE Act was to terminate Mr Evans' employment after giving him an opportunity to resign, subject to any submissions that Mr Evans wished to make. 2. Following the sudden and unexpected death of Mr Farquhar, the matter was assigned to Kevin Corcoran, the Assistant Commissioner, Custodial Corrections Division for CSNSW. 3. On 10 April 2018 Mr Corcoran conducted an interview with Mr Evans, which had been arranged at Mr Evans' request. During the interview Mr Evans provided the following details of the events of 13 November 2017: 1. Mr Evans and Mr Griffiths became involved in an argument in which Mr Griffiths called Mr Evans "a fat cunt" and "an ice addict (in reference to Mr Evans' teeth)", in response to which Mr Evans said to Mr Griffiths, "you think I'm an ice addict, let's go outside", this being the only threat he made to Mr Griffiths; 2. Mr Evans did not touch Mr Griffiths; and 3. the only time he was belligerent towards the police was when they asked him for his details and he responded, "no, I'll speak with you at the station". 1. Following the interview, Mr Evans wrote a letter to Mr Corcoran, dated 10 April 2018. In that letter Mr Evans stated, in summary, that: 1. he had worked for CSNSW for 18 years without any disciplinary action being taken against him; 2. he was not a violent person; 3. he was involved in the riot at Goulburn gaol in April 2002, which he thinks about often and which changed his outlook on many things; 4. on 13 November 2017 he "reacted poorly" to personal insults directed at him by Mr Griffiths, but that he never assaulted or threatened him; 5. many changes were made to the original police brief to properly reflect the events of the night in question; 6. at no time did he abuse police or resist arrest, and he was only belligerent to the extent that he refused to provide his personal details; 7. he pleaded guilty on legal advice in the hope of receiving a section 10 bond; 8. the magistrate was sympathetic to his position, particularly in the context of the 2002 riots; 9. he had accepted the punishment given to him by the Court and had learnt a valuable lesson; and 10. he had suffered mentally and financially since being suspended from the workplace and was looking forward to being reinstated. 1. By letter dated 11 May 2018, which was served on Mr Evans on 18 May 2018, Mr Corcoran advised Mr Evans that he had made the final decision to impose the misconduct outcome of "termination of employment (with opportunity to resign)". Mr Evans was required to tender his resignation within 7 days, failing which his employment would be terminated. 2. Mr Evans did not tender his resignation. 3. By letter dated 29 May 2018 Mr Corcoran terminated Mr Evans' employment with effect from that day. The respondent's evidence 1. The respondent tendered the following evidence: 1. a statement of Julianne Taverner, Legal Officer in the Professional Standards Branch of CSNSW, dated 16 August 2018; 2. a statement of Helen Curic, Senior HR Adviser, Work, Health, Safety and Injury Management for CSNSW, dated 14 August 2018; 3. a statement of Larry Bolger, Governor of the Goulburn Correctional Centre, dated 15 October 2018; and 4. two bundles of documents. 1. The evidence in Ms Taverner's statement included the following: 1. documents showing that Mr Evans was provided with a copy of the "NSW Department of Corrective Services CSNSW Guide to Conduct and Ethics" on 22 February 2007; 2. some aspects of Mr Evans' disciplinary history; 3. evidence of psychological treatment provided to Mr Evans. This includes the report of Mr Schubert dated 20 April 2012 referred to at [13] above; and 4. records of Mr Evans working on 16 April 2002 (the day of the riots at the Goulburn Correctional Centre). 1. Ms Curic's statement evidences Mr Evans' history of workers' compensation claims. She states that to the best of her knowledge Mr Evans has not lodged any claims for psychological injury. 2. Mr Bolger's statement was tendered in reply to Mr Evans' statement (referred to below). In his statement Mr Bolger: 1. produces Mr Evans' rosters for April and May 2002. The evidence confirms that Mr Evans was working at the time of the riots on 16 April 2002; 2. discounts the training that Mr Evans had undertaken as having been completed some considerable time in the past and therefore "lacking currency"; 3. states that Mr Evans has been counselled on numerous occasions, and been placed on four performance management plans, due to unscheduled absenteeism; 4. "strongly disagrees" with Mr Evans' statement that he has an excellent record and that his supervisors hold him in high regard; and 5. offers the opinions that "Mr Evans has no shown the level of dedication and commitment he claims" and that Mr Evans "is not a fit and proper person to hold the honour of serving the citizens of New South Wales". Mr Evans' evidence 1. Mr Evans tendered the following evidence: 1. a statement he had made on 19 September 2018; 2. a statement of Elizabeth Newcombe, a case manager employed at Pathways Goulburn, dated 21 September 2018; 3. a bundle of documents produced under summons by Dr Hasan Al Hashimi, a general practitioner; and 4. a bundle of documents produced under summons by Mary Silk, a psychologist. 1. In his statement Mr Evans says, in summary, as follows: 1. during his career he has confronted many situations where inmates provoked or assaulted him. He never succumbed to the temptation and was never charged with using excessive force when restraining an inmate; 2. he has gone through several personal issues in his life and these have contributed to his excessive consumption of alcohol. He comes from a family of heavy drinkers; 3. he was diagnosed with depression in 2003 and was prescribed anti-depressant medication. He consulted a psychologist. He attributes his depression to his involvement in the riots at Goulburn Correctional Centre on 16 April 2002. He was "heavily involved" in quelling the riots, had objects thrown at him and was affected by tear gas. He did not continue seeing the psychologist, believing that he could deal with the depression with the medication he was taking. When he found himself in a "bad place" he resorted to alcohol to cope with his feelings; 4. it was not until the incident of 13 November 2017 that he realised that he needed "ongoing psychological treatment" and "some professional help". The events of 13 November 2017 were the "wake-up call" he needed to seek ongoing psychological treatment; 5. the incident on 13 November 2017 arose because of a history of ill-will between him and Mr Griffiths. The incident got out of control and Mr Evans acted "completely inappropriately" during the incident with Mr Griffiths and afterwards in his interactions with police. He can put down his behavior only to the effects of alcohol (he was "mildly affected by alcohol") and the abusive language that Mr Griffiths directed to him; 6. he is not a violent person; 7. he has taken positive steps to address his depression and problem with alcohol. He has arranged ongoing counselling in relation to his alcohol consumption with Ms Newcombe, whom he sees once a week. He has also consulted his general practitioner, Dr Al Hashimi, who increased his daily dose of anti-depressant medication. He has arranged to consult with a psychologist, Ms Mary Silk, on an ongoing basis so that he can get some "closure on the memories of the 2002 riots". He is currently seeing Ms Silk once a week and he will continue so to do; 8. he understands that his offences are not appropriate for a Correctional Officer and it is "not a good look" that he has a criminal record. Although inexcusable, the offences do not affect his ability to perform his duties as a Correctional Officer; 9. he loved his job as a Correctional Officer and believes he has made a positive contribution. He has always tried to perform his duties to the highest standard. He has completed several courses and undertaken training to improve his competence. He has an excellent record as a Correctional Officer and believes his supervisors at the Goulburn Correctional Centre hold him in high esteem; and 10. he asks the Commission to give him a second chance so that he can resume his career as a Correctional Officer. 1. In his statement Mr Evans also describes the circumstances of his various driving offences, including those referred to at [11] above. It is not necessary to traverse that evidence. 2. Annexed to Mr Evans' statement are three character references. 3. Elizabeth Newcombe is a Case Manager employed by Pathways Goulburn. Her statement attaches a report dated 21 September 2018. In that report Ms Newcombe states as follows: 1. Pathways Goulburn is a non-residential treatment and support service for people affected by alcohol and other drugs; 2. Ms Newcombe is an enrolled nurse holding registration with the Nurses Board. She holds diplomas in Drug and Alcohol and in Mental Health. She has studied Forensic Mental Health through a scholarship with Flinders University in South Australia. She has worked as a clinician for drug and alcohol issues, and mental health issues, for more than twenty-five years; 3. Mr Evans first presented to Pathways on 8 July 2018 as he "felt he was drinking too much and that it was having an impact on his life"; 4. Mr Evans told Ms Newcombe that he was diagnosed with depression in 2003 and prescribed an anti-depressant daily. At Ms Newcombe's suggestion Mr Evans consulted his general practitioner and increased his dosage of the anti-depressant. Mr Evans reported an improvement in his condition as a consequence; 5. Ms Newcombe understands that Mr Evans had begun to see a psychologist; 6. Mr Evans had reported a reduction in his alcohol consumption. He stated to Ms Newcombe that he had been working hard at the local racecourse and helping his father on the farm. He stated that his mood was good and that he felt generally happy; 7. Mr Evans had expressed a desire to continue with Pathways on a weekly basis; and 8. Mr Evans had talked of his love of his position at Goulburn gaol and how he would like to be reinstated. 1. In her oral evidence, provided by telephone, Ms Newcombe stated that she had seen Mr Evans on nine occasions, and had in addition spoken to him over the telephone. Mr Evans had stated to her that he now understood the difference between social drinking and excessive drinking. Ms Newcombe was unable to offer any insight into why Mr Evans had been drinking as much as he had before attending Pathways. 2. Dr Hasan Al Hashimi is Mr Evans' general practitioner. He gave evidence via telephone. His evidence included the following: 1. he had been seeing Mr Evans since the end of 2017; 2. in July 2018 he had a consultation with Mr Evans. During this consultation Dr Al Hashimi increased Mr Evans' prescription for anti-depressant medication. Mr Evans also reported "excessive alcohol intake", which may have been attributable to Mr Evans having been out of work for a long period of time; 3. in September 2018 he provided Mr Evans with a referral to Daniel Troy & Associates for psychological treatment for "anger control issues with depression and alcohol excess"; 4. Mr Evans had explained the anger control issues as being "irritable with his family"; and 5. Mr Evans had not reported to Dr Al Hashimi the events of 13 November 2017 or the criminal charges that resulted from them. 1. Mary Silk is a psychologist. She gave evidence via telephone. Her evidence included the following: 1. she began seeing Mr Evans as a result of a referral from Dr Al Hashimi; 2. her first consultation with Mr Evans was on 20 September 2018. As at the date of the hearing she had seen Mr Evans four times, with future sessions booked; 3. she had not discussed with Mr Evans any anger management issues he may have; 4. in her sessions with Mr Evans they had discussed issues that had caused Mr Evans to feel depressed; and 5. she had "touched on" Mr Evans' alcohol excess, but not in detail. Submissions 1. In its outline of submissions the respondent contended as follows: 1. It is common ground between the parties that Mr Evans was affected by alcohol at the time of the offences the subject of the charges laid on 13 November 2017 and that he pleaded guilty to two offences. 2. Mr Evans' plea occasioned a finding of guilt in respect of a serious offence, constituting misconduct for the purposes of s 69 of the GSE Act. 3. The issue to be determined by the Commission is whether, pursuant to s 100C of the IR Act, it should confirm the order for dismissal or termination or substitute another order. 4. The order for termination is appropriate in the present case for the following reasons: 1. Mr Evans has at least twice experienced a "wake up call" in respect of his excessive consumption of alcohol (2011, 2017); 2. Mr Evans has on four separate occasions over a period of 15 years been found to have low to mid-range PCA while driving; 3. on one occasion Mr Evans was found at work to have a PCA in excess of what was permitted in the workplace; 4. Mr Evans was made the subject of an 18-month period of alcohol testing in the workplace; 5. Mr Evans has been made the subject of a number of different interventions imposed by the criminal courts to remediate his problematic behaviours around the consumption of alcohol and driving; 6. Mr Evans has attended counselling sessions for his alcohol consumption, first in early 2012 and more recently in 2018; 7. alcohol is the primary factor in Mr Evans' criminal offending and has occasioned a disciplinary outcome being imposed on Mr Evans in 2013 and then again in 2018; 8. Mr Evans' problematic behaviours around alcohol and his successive failures to have addressed these behaviours, despite the interventions of the criminal justice system and his employer, mean that the respondent has little if any confidence that Mr Evans will address either his excessive consumption of alcohol or ameliorate the risks of recidivism under the influence of alcohol; 9. Mr Evans has not demonstrated sufficient commitment or progress in addressing his excessive consumption of alcohol or in the amelioration of the risks of recidivism under the influence of alcohol; and 10. accordingly, neither the respondent nor the Commission can be confident that Mr Evans will be able to abide by the law and model exemplary behaviour and act as a positive example in the community in order to discharge his ethical obligations as a correctional officer and a member of the public service. 1. In light of these matters, the appropriate order is that the Commission confirm the order for dismissal. 1. The submissions filed on behalf of Mr Evans contended as follows: 1. Mr Evans has suffered from mental illness for many years. He remains on medication and has undergone counselling with some success. He continues to try and deal with his depression. His position as a person who has suffered from depression should not be deprecated and should be carefully taken into consideration. Since his dismissal he has taken some further steps to deal with this issue and apart from reasonably regularly seeing his general practitioner he has engaged the services of Ms Newcombe and Ms Silk. 2. The Local Court regarded the appropriate penalty for the intimidation offence (the one that CSNSW appears to regard as the more serious offence) to be something towards the very bottom of the range of likely penalties: namely, a good behaviour bond for 12 months. The other offence was treated leniently as well with a small fine of $500 being imposed. The same out-of-hours conduct that was dealt with relatively leniently by the Local Court should not be met with the harshest penalty of dismissal by Corrective Services or the Commission. The penalty meted out to Mr Evans should not be disproportionate to the wrongdoing in any event. 3. The fact that Mr Evans has been punished by the criminal justice system is a matter relevant to any additional or other penalty that is imposed in respect of his employment especially because quite apart from anything else the criminal sanction of a good behaviour bond serves as an ongoing deterrent to Mr Evans committing any like crime in the future. 4. Neither offence involved the actual execution of violence to a person or property or dishonesty or personal gain. The offences probably did no more than demonstrate stupidity and the effects of alcohol. 5. The offences giving rise to the disciplinary action are not serious offences. 6. There is no obvious nexus between the conduct such that it can be said to constitute a rejection or repudiation of the employment contract. Whether such a nexus is necessary or not is probably a moot point. There is no "fundamental incompatibility with Mr Evans conduct and his role as a law enforcement officer". 7. The exaggeration of Mr Evans' driving record, and confusing those offences with the offences that bring Mr Evans' to the Commission in this appeal, is unhelpful. Mr Evans has four offences for drink driving, three of which happened more than 5 years ago within a period of about 6 years, and he has two recent offences, which involved an argument in a pub when he had a few too many. The driving offences are qualitatively different (and objectively more serious). The fact that he has not driven whilst intoxicated for a long time demonstrates that Mr Evans has learnt something from his past. That his recent offences are of a different character is very relevant to an assessment of the seriousness of his offending. 8. Mr Evans has accepted responsibility for his offending and has expressed remorse and contrition. He has done so at all relevant times. He is very sorry for what he did on 13 November 2017. 9. Mr Evans' work history so far as it concerns the performance of work or conduct at work is relatively unblemished over a period of 18 years where he has done extensive training and has received a commendation for his work. His employment record is contextually relied upon in what is undoubtedly a difficult industry and a correctional centre setting that is known to be difficult. 10. Mr Evans' conduct on 13 November 2017 is on all the evidence (and no matter what view is taken of its seriousness) entirely out of character. He has no criminal or disciplinary record for anything like the most recent offences. 11. Mr Evans at no time sought to conceal his offences. He co-operated as far as he could, based on the legal advice he received, with CSNSW. It may be unfortunate that he said he would defend the charges at the outset, but that was probably true (and based on the legal advice he had been given) at the time he said it, as the facts changed by the time he came to enter his plea. 12. There is no sound reason why some other available and lesser disciplinary sanction could not have been imposed. There were many other sanctions available that could have been used to express CSNSW's disapproval of Mr Evans' conduct both specifically and generally. 13. Mr Evans loves his job and by reason of dismissal will lose the benefit of long term secure public sector employment. 14. Mr Evans has since dismissal taken active steps to try and deal with his "alcohol problem" and other issues. 15. The effect of dismissal is harsh having regard to the fact the only employment that Mr Evans has obtained since his dismissal is casual work earning about $600 a week. 16. These factors should lead to the Commission to uphold the appeal, set aside the respondent's disciplinary action and make appropriate consequential orders. Applicable law and principles Regulatory context of Mr Evans' employment 1. It is not in dispute that Mr Evans was employed in the Public Service under the GSE Act. His employment was liable to be terminated on one or more of the grounds set out in s 47 of the GSE Act, including that a finding of misconduct is made against him under s 69 of the GSE Act (s 47(1)(h) of the GSE Act). 2. Section 69 of the GSE Act relevantly provides as follows: 69 Misconduct - Public Service and other prescribed government sector employees (1) In this section: … misconduct extends to the following: … (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). … (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. … 1. A breach of s 13(1) of the Crimes (Domestic and Personal Violence) Act is subject to a maximum penalty of imprisonment for 5 years or 50 penalty units, or both. It is therefore a "serious offence" for the purposes of s 69(1) of the GSE Act and Mr Evans' conviction for that offence was, by definition, "misconduct". 2. By contrast, a breach of s 77 of the Liquor Act is punishable by a maximum penalty of 50 penalty units. It is not a serious offence for the purposes of s 69(1) of the GSE Act. 3. It is also not in contention that in his employment Mr Evans was bound to comply with the Code of Ethics. Section 7.1 of the Code of Ethics, which is titled "Conduct while off duty", is reproduced at [21(1)] above. Principles on appeal 1. The Commission's powers in a disciplinary appeal of this kind are contained in Ch 2 Pt 7 of the IR Act, which relevantly provides as follows: 97 Notice of certain decisions etc (1) This section applies to the following decisions made by a public sector employer in relation to a public sector employee: … (f) a decision to dismiss the employee, (g) a decision to direct or to require the employee to resign. … 98 Right of appeal (1) Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer. … 100C Decisions with respect to appeals (1) (Repealed) (2) The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. (3) Without limiting the generality of subsection (2), if in relation to a disciplinary appeal it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Commission: (a) is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits, or (b) may quash the decision and remit the matter back to the employer with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the employer. (4) The decision of the Commission in respect of an appeal is, except as provided by section 197B, final and is to be given effect to by the employer against whose decision the appeal was brought. 100D Orders by Commission with respect to payment of salary and continuity of employment (1) Without limiting section 100C, if the Commission decides to allow a disciplinary appeal, the Commission may: (a) if the employee has paid a fine imposed by the employer or his or her pay has been forfeited—order the employer to repay the amount of any such fine or forfeited pay, and (b) order the employer to pay the employee an amount stated in the order that does not exceed the remuneration the employee would, but for the decision of the employer, have received from the employer, and (c) order that any period of employment of the employee with the employer is taken not to have been broken by the decision of the employer. (2) Any such order by the Commission must be given effect to by the employer. (3) Nothing in subsection (1) enables the Commission to make an order for compensation in the case where a person is not reinstated or does not continue in employment. 1. Both parties referred me to Marroun v State Transit Authority [2017] NSWCA 273 in which the Court (Bathurst CJ, Beazley P and Basten JA) examined the Commission's jurisdiction under Ch 2 Pt 7 of the IR Act. From that decision it is possible to derive the following principles: 1. An appeal under Ch 2 Pt 7 of the IR Act is a fresh hearing of the allegation of misconduct (or an administrative hearing de novo). (In Marroun it was common ground that the proceeding before the Commission was a fresh hearing: at [29]. The Court stated that a conclusion that an appeal under Ch 2 Pt 7 of the IR Act is a fresh hearing was supported by the decision of the High Court in Calman v Commissioner of Police (1999) 73 ALJR 1609; [1999] HCA 60: at [30]; see also [32] and [34].) 2. An appeal by way of fresh hearing means that the appellate body "stands in the shoes of" the original decision-maker. Where there is a specific charge or complaint before the employer, which has resulted in particular disciplinary action, it will be necessary for the Commission to consider that charge or complaint and, if it be upheld, determine what disciplinary action should be imposed: at [35]. In other words, the Commission is to engage in a two-step process: first, to determine whether the employee has engaged in the misconduct alleged; and second, if the employee has engaged in that misconduct, to determine what disciplinary action is to be taken: at [45] – [47] and [62]. 3. Generally, it is assumed that the appellate body has the same powers as the original decision-maker, no more and no fewer: at [35]. The appeal is "a fresh exercise of administrative power"; it is not the exercise of a different power for the first time: at [48], relying on Calman. 4. If the allegations of misconduct on which the original decision-maker relied are not proven to the satisfaction of the Commission, the Commission is obliged to allow the appeal: at [62]. 5. Post-decision events or conduct may be relevant to the consideration of penalty, but not to the consideration of the essential precondition to the imposition of a penalty, namely whether the disciplinary charge has been proven: at [56], citing Maritime Services Board v Murray (1993) 52 IR 455. 6. If the Commission allows the appeal the Commission may consider post-decision events or conduct in determining whether some lesser form of disciplinary action was appropriate: at [62] and [63]. 1. In Marroun the Court of Appeal considered at length Secretary, Department of Justice v Schoeman (2014) 86 NSWLR 749; [2014] NSWIRComm 40. In Schoeman it had been held, firstly, that there was no requirement for the Commission to reach a conclusion as to the misconduct (as charged) in a disciplinary appeal as a prerequisite to the exercise of its powers under s 100C of the IR Act; and, secondly, the appeal need not be confined to a review only of the specific allegations of misconduct upon which punishment was based or, by implication, only materials which formed the basis for that decision. The Court of Appeal in Marroun stated that the approach outlined in Schoeman should not be accepted (at [46]) and that in respect of these matters Schoeman was wrong and should not be followed (at [61]). I make these observations only to clarify the Commission's jurisdiction, noting that Schoeman had previously informed the Commission's approach to appeals under Ch 2 Pt 7 of the IR Act. Consideration Did Mr Evans engage in the misconduct alleged against him? 1. It is necessary to identify what misconduct is alleged against Mr Evans. 2. Mr Reitano submitted as follows (Tcpt, 31 October 2018, p 20 (49) – p 21 (3)): "And I just freeze there; what you are asked to do here is to consider in this case whether dismissal was warranted by the only conduct which formed the basis of the disciplinary charge, namely, the conduct that relates to 13 November and the two disciplinary offences, the two criminal charges that the department relied on." 1. The misconduct alleged by CSNSW in its letter of 19 December 2017 (see [21] above) was largely a recitation of the Police Facts Sheet as iterated at that time. Save for the three amendments made to derive the Agreed Police Facts, those matters are admitted. 2. In his letter dated 5 February 2018 (see [27] above), Mr Farquhar advised Mr Evans that he had formed the view that Mr Evans had engaged in the following misconduct: "1. Police charged you with two offences, which you pleaded guilty to on 6 December 2017, being: a. Stalk/intimidate fear physical etc harm (personal) – T2 b. Excluded person fail to leave premises when required." [sic] 1. In the letter that Mr Corcoran sent to Mr Evans dated 11 May 2018 advising him of his decision to terminate Mr Evans' employment, after giving him an opportunity to resign (see [32] above), Mr Corcoran restated the grounds of misconduct cited in Mr Farquhar's letter of 5 February 2018. 2. During submissions Mr Reitano contended as follows: "Here what you will see when I take you through the material, and it arises in this respect and another respect, that what you are being invited to do is to dismiss the appeal on the basis that Mr Evans has an alcohol problem, not uphold the appeal on the basis of the two disciplinary matters or the two charge of discipline that were made against him, and this is the force of my learned friend's push-back on my submissions, of course. So you're being asked to find, and I'm putting this very much in the extreme because we know that it is not the case but I just want to illustrate the point, you're being asked to find that he should be dismissed because he's an alcoholic, which he is not, as I say, but just to illustrate the point in a shorthanded way, that what I - and I know my learned friend hasn't said that either but it just puts it in stark contrast. You're not being asked to uphold his dismissal because of the disciplinary charges against him." (Tcpt, 31 October 2018, p 13 (39) – 14 (1)) And further: "And with respect, it's fairly clear that the case that's presented to you says discipline him because of alcohol, not discipline him because he's been convicted of a serious offence, or because he's been convicted of another offence that's not a serious offence." (Tcpt, 31 October 2018, p 14 (49) – 15 (2)) 1. I do not accept these submissions. It is certainly the case that the respondent's case before the Commission relied heavily on and emphasised Mr Evans' alcohol-related history, together with the extent to which his consumption of alcohol caused or contributed to the events of 13 November 2017, the charges that resulted and the offences for which he had previously been convicted. However, it is clear from the respondent's submissions (see [47] above) that it maintained that the misconduct alleged against Mr Evans was his conviction of the two charges on 6 December 2017. The issue of Mr Evans' alcohol use was put forward as a matter relevant for the Commission in determining the appropriate misconduct action to take under s 69(4) of the GSE Act. I return to this point below. 2. To use the language adopted by Mr Reitano, there is no factual contest in relation to "the conduct that relates to 13 November [2017] and…the two criminal charges that [the respondent] relied on". 3. It is not in dispute that Mr Evans' conviction for a breach of s 13(1) of the Crimes (Domestic and Personal Violence) Act was misconduct as defined under s 69(1) of the GSE Act. 4. While the conviction under s 77(4) of the Liquor Act was not by definition a "serious offence" under s 69(1) of the GSE Act, it seemed to be conceded by Mr Reitano to be to be misconduct in any event, in these terms (Tcpt, 31 October 2018, p 14 (30-34): "The respondent contends that the applicant's plea has occasioned a finding of guilty in respect of serious offences. I think, in fairness, it is now conceded in the case of one serious offence, and my friend tells me that's so, the Liquor Act offence does not fall within the definition of serious offence. It does fall within misconduct, I suspect, in any event, for the purpose of s 69." 1. I am satisfied that the offences amounted to a breach of s 7.1 of the Code of Ethics. In reaching this view I have regard in particular to the following elements of the Agreed Police Facts: 1. Mr Evans verbally abused and swore repeatedly at Mr Griffiths. This occurred in a public place in the presence of others, including a young family. He caused concern to other patrons of the hotel, to the extent where one felt it necessary to intervene; 2. Mr Evans threatened Mr Griffiths with violence. He picked up a bottle and started to raise it, until his partner intervened. While Mr Evans may not have inflicted physical violence on Mr Griffiths, he certainly acted in a violent manner; 3. not unreasonably or surprisingly, Mr Griffiths was in fear for his safety; and 4. Mr Evans was belligerent towards and argumentative with the police. He engaged in threatening behaviour with them as well. 1. On any analysis Mr Evans engaged in abusive and threatening behaviour, to both Mr Griffiths and the police. It was objectively serious and unacceptable by any standards. Mr Evans did not "model exemplary behaviour and act as a positive influence in the community" on 13 November 2017. There is no question that he acted unlawfully. He also acted unprofessionally and in a manner which had the potential to damage the reputation of CSNSW, particularly in his dealings with the police. On this issue I accept the following submissions made by Ms Douglas-Baker (Tcpt, 31 October 2018, p 11 (34-44)): "There's one other element that pertains to - it's raised under cl 7.1 but it's another example of the importance of the conduct of Corrective Services officers outside of work and in particular in a regional community like Goulburn and that is that where - there is an ongoing working relationship between Corrective Services and New South Wales police in dealing with matters that arise within the Corrective Services environment and outside of it and an important part of the obligation to uphold the law and to model exemplary behaviour and be a positive influence is to cooperate with that other arm of the justice system. I raise that purely as a submission. I certainly don't suggest it has been recorded anywhere in any of the documentation as part of the procedural fairness." 1. The fact that the conduct occurred out-of-hours does not preclude a finding of misconduct. This flows from the language of s 69(1) of the GSE Act and in clause 7.1 of the Code of Ethics. 2. In any event, it is not necessary to demonstrate, as submitted on behalf of Mr Evans, that the impugned conduct is "such that it can be said to constitute a rejection or repudiation of the employment contract": 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 at [30]. 3. I find that Mr Evans engaged in the conduct alleged against him and that it amounted to misconduct. What disciplinary action is to be taken? 1. As stated above, Mr Evans' history of alcohol use and alcohol-related offending featured heavily in the proceedings before me. 2. Before turning to address the evidence and submissions on those matters, they should not be permitted to divert attention from an examination of the events of 13 November 2017. I repeat the observations I make at [67] and [68] above. While Mr Evans stated that he would not have acted the way he did had he not been affected by alcohol, this does not excuse his behaviour. This is more the case given that Mr Evans regards himself to have been only "mildly affected" by alcohol at the time. 3. Mr Evans' history with alcohol and alcohol-related offences is more relevant to the likelihood of Mr Evans engaging in future similar misconduct, and for that reason goes to the question of the disciplinary action that should be taken against him. 4. The respondent submits that Mr Evans has not demonstrated sufficient commitment or progress in addressing his excessive consumption of alcohol, or in the amelioration of the risks of recidivism under the influence of alcohol, to provide comfort that he will in the future abide by his obligations, including under the Code of Ethics. 5. Mr Reitano submitted that the respondent's reliance on the "question of alcohol" raised procedural fairness issues. He contended as follows: "…There is a huge procedural fairness issue that now arises because of that in that none of the disciplinary charges, none of the process that brings us here in any way gave Mr Evans an opportunity to respond to an allegation that he should be dismissed because he has an alcohol problem or because he was an alcoholic. There is nothing in the material, and I will take you through the process in a moment to illustrate both points. So I should say in respect of that second point it is fair for my friend to concede that arguably, and that's the word that she uses, the question of alcohol is raised but it is not fair to decide the matter on the proposition or the premise that it was raised in circumstances where it is only arguably raised. Procedural fairness required it to be raised loud, wide and clear in order to give Mr Evans an opportunity to deal with it." (Tcpt, 31 October 2018 p 14 (5-18)). And further: "So, consistent with what I say about the offences in the Act, the actual charges here do not particularise alcohol or intoxication, they did not proceed on that basis, there is no aspect of the charge, either in terms of the elements of the offences or in terms of the particulars to the charges that relates to alcohol consumption." (Tcpt, 31 October 2018 p 16 (30-34)). 1. During her submissions in reply I had the following exchange with Ms Douglas-Baker (Tcpt, 31 October 2018 pp 30(42) – 31(16)): "COMMISSIONER: I'm just struggling to understand I think and maybe this is something I'll just need to go away and think about over a strong cup of tea, but if you don't get there on the offences themselves and it comes back to a concern - I mean I understand from the documents there was reliance on the criminal history. I understand that, that's clear. What wasn't clear from the documents I think and again, I'll remind myself reading through them again, but it's not clear that they're saying "And we've got a concern that you are likely to reoffend because you have got a problem with alcohol". Now that has become quite clearly the matter before me in these proceedings. So what's not clear to me is that to what extent do you say that I can have regard to those matters, if I find that they were not squarely put to Mr Evans during the disciplinary process. DOUGLAS-BAKER: I think we would have to concede that those matters were not put anywhere in the disciplinary process and my recollection is they're not strictly even identified in specie as part of the reasons for the misconduct outcome. We would say that the extent of the permissible approach and I think it's referred to in my submissions, is that the Court of Appeal has said you can take into account subsequent conduct in determining the appropriate outcome and that's where, in a sense, it gets in and it might be that - it might be that - I don't think it's disputed between the parties that a misconduct finding necessarily must be accepted but the question is what is the appropriate disciplinary outcome in the circumstances and between dismissing the appeal and imposing a different outcome, there's a number of different options." 1. Mr Reitano is correct in saying that none of the correspondence from the respondent to Mr Evans in the process culminating in his dismissal made allegations that Mr Evans had an alcohol problem, or mentioned alcohol use at all. That does not, however, prevent the issue being considered by the Commission in determining the appropriate disciplinary action to be taken. In this regard, Mr Reitano's submissions misapprehend both Marroun and the nature of the proceedings before the Commission. 2. This is a hearing de novo in which the Commission "stands in the shoes of" the decision-maker. Whether or not there was a lack of procedural fairness in the process of adopted by CSNSW is not the question. What is required is that procedural fairness be afforded to Mr Evans in these proceedings. 3. The issue of Mr Evans' alcohol use and alcohol-related offending was squarely put in the respondent's case. Mr Evans was able to, and did, put on submissions and evidence in reply. This included evidence as to the steps he has taken to address his problems with alcohol, including evidence from his treating practitioners. 4. I do not accept Mr Reitano's submissions that the principles in Marroun preclude me from considering the issue of Mr Evans' alcohol use. 5. Mr Evans admits to having had a problem over the years with "excessive consumption of alcohol". This had led him to commit the several traffic offences referred to at [11] above. In his statement and under cross-examination he accepted that the events of 13 November 2017 would not have occurred had he not been intoxicated. 6. Mr Evans describes the events of 13 November 2017 as a "wake-up call". The report of Mr Schubert dated 20 April 2012 (see [13] above) states that Mr Evans had described the events of 2011 in a similar way. In cross-examination Mr Evans could not recall saying those words to Mr Schubert. 7. Mr Evans has taken steps to address his problems with alcohol, including through consulting Dr Al Hashimi, Ms Newcombe and Ms Silk. In cross-examination it was put to Mr Evans that, in effect, he had only sought professional help to assist in his case before the Commission. Mr Evans denied that. There was equally no suggestion from his treating practitioners that Mr Evans was being other than genuine in attempting to address his depression and alcohol use. 8. Mr Evans has expressed a desire to confront and resolve his alcohol, medical and related issues. This is shown in the following exchange during his cross-examination by Ms Douglas-Baker (Tcpt, 30 October 2018, pp 31(33) – 32(13)): "Q. Assuming that you are reinstated to your position with Corrective Services, and assuming that there will be times when you experience anxiety in the job, how are you going to deal with that? A. Well, I think perhaps continue to see Libby on a long term basis. We've discussed that. It's a free service, and Libby's suggested that, because of the change that she's seen in me, that it's something that we should continue with for however long I think is necessary, it's good to speak to Libby. Q. And Ms Silk, will you continue to see Ms Silk? A. Ms Silk wants to see me again next week, yes, and just, to see where we're at. We've only just started seeing one another, so we have a lot more stuff to work on. Q. And your referral to Ms Silk is under a mental health care plan? A. That's correct. Q. And is it the case that you're able to see her at a Medicare rebate cost and no cost to you? Is that the arrangement? A. No, I have to pay, I think it's $186, and I get rebated about 90, so it's about half, I pay. Q. Do you have any private health insurance-- A. Yes I do. Q. --that can assist with that gap? A. No, I don't. I haven't looked into that. I will do. Q. Is that something that, if you wanted to keep seeing Ms Silk, that you can afford to do, if you're reinstated and you need to see her? A. Oh, absolutely. I mean, the cost doesn't really matter; if it's helping me, then it's money well spent, as far as I'm concerned." 1. At the same time, there is some justification for the respondent's caution regarding the extent to which Mr Evans has addressed his excessive consumption of alcohol. On the evidence, Mr Evans did not seek professional help to address the issue until seeing Dr Al Hashimi and Ms Newcombe in July 2018, well after his "wake up call" in November 2017. That delay casts some doubts on his motivations for seeking treatment. Further, as at July 2018 – and, from his evidence, until that time – Mr Evans had not modified his drinking practices. Dr Al Hashimi's progress notes for 7 July 2018 refer to Mr Evans' "excessive alcohol intake". As at 19 September 2018 Mr Evans was referred to a psychologist for dealing with, amongst other things, his "alcohol excess". 2. On balance, I regard the evidence of the steps that Mr Evans has taken to address his excessive alcohol consumption as a mitigating factor, to the extent that it alleviates in part the concern that he may in future engage in alcohol-related misconduct. 3. I do not place great weight on Mr Evans' history of PCA offences, except in so far that in 2013 such an offence resulted in him being subjected to disciplinary action: see [12(2)] above. He was clearly on notice that out-of-work conduct could result in disciplinary action being taken against him. 4. I have considered the fact that Mr Evans has been diagnosed with depression and has been on medication, if not necessarily seeking treatment, since 2013 or 2014. 5. There is no independent medical evidence that Mr Evans' depression caused or contributed to the events of 13 November 2017. Indeed, Dr Al Hashimi gave evidence that he had not been made aware of those events or of the subsequent criminal convictions. As such, I regard Mr Evans' stated condition as a mitigating factor but not one which exonerates him. 6. I have also considered the fact that Mr Evans is seeking assistance to address his "anger control issues". These were not explained in any detail. More particularly, there is no evidence that such issues were related to or responsible for the events of 13 November 2017 (Dr Al Hashimi understood them to relate to Mr Evans being irritable with his family). Further, there is no evidence that Mr Evans sought help for any such issues prior to September 2018. 7. Mr Evans relied on his 17 "relatively unblemished" years of service with CSNSW, as summarised above at [40(9)]. The most recent disciplinary action taken against Mr Evans was in 2014, and was related to absenteeism. 8. Larry Bolger, the Governor of the Goulburn Correctional Centre, offered a very different view as to Mr Evans' performance at work to that presented by Mr Evans. The sometimes strident tone of Mr Bolger's statement is jarring, but he was not required for cross-examination and his statement was tendered without objection. There is no reason why his evidence should not be taken at face value. 9. On balance, I acknowledge Mr Evans' length of service but do not accept his submissions regarding the quality of that service. 10. Mr Evans submitted that he has accepted responsibility for his offending and has expressed remorse and contrition. 11. To a degree this submission is undermined by others he made: he contends that the two criminal offences "probably did no more than demonstrate stupidity and the effects of alcohol"; and, the events of 13 November 2017 are characterised as "an argument in a pub when he had a few too many". 12. It is perhaps difficult to disagree with the first contention. However, the effect of the submissions is to seek to downplay the seriousness of the situation. Again I repeat the observations I have made at [67] and [68] above. The behaviour was sufficiently serious to warrant Mr Evans being arrested and charged. Attempting to gloss over those objectively serious facts calls into question the extent to which Mr Evans truly accepts responsibility for his misconduct. 13. In this context, Mr Evans' email to Ms Taverner of 1 February 2018 (see [26] above), his statements to Mr Corcoran during the interview on 10 April 2018 (see [30] above) and his letter to Mr Corcoran of 10 April 2018 (see [31] above) do not accurately reflect either the extent to which the original Police Facts Sheet was amended to arrive at the Agreed Police Facts, or the contents of the Agreed Police Facts. This again calls into question the extent to which he has accepted responsibility for his actions and is remorseful and contrite. 14. Mr Evans submits, and has consistently stated, that his behaviour on 13 November 2017 was out of character. The references attached to his statement attest to that. There is certainly no evidence that Mr Evans has a history of violence. He claims to have been verbally provoked by Mr Griffiths, with whom he had an acrimonious relationship. That evidence was not challenged. 15. I accept that Mr Evans' conduct on 13 November 2017 was out of character. This might alleviate concerns as to the risk of his re-offending but does not exonerate him from the events in question. 16. Mr Evans also relies on the sentence imposed by the Local Court, in two respects. Firstly, he notes the "relative leniency" of the penalties imposed by the Local Court to submit that the same conduct should not be met with the "harshest penalty of dismissal by Corrective Services or the Commission". Secondly, he submits that he has already been punished by the criminal justice system, which is relevant "to any additional or other penalty that is imposed in respect of his employment". 17. I am not persuaded by these submissions. On the first, the Commission is dealing with a fundamentally different question to that decided by the Local Court. Whether the dismissal of Mr Evans is warranted is a matter to be determined in the context of the legislation and regulatory framework outlined above. 18. The second submission is at odds with s 69(1) of the GSE Act, which expressly allows for the possibility of termination as a consequence of a finding of guilt for a serious offence. In addition, there are ample authorities in which a punishment through the criminal justice system did not preclude the termination of a person's employment. Mr Evans refers to some of these in his submissions. 19. The respondent contends that Mr Evans' behaviour has to be considered in light of the regional nature of the community in which Mr Evans works and lives. Ms Douglas-Baker submitted as follows (Tcpt, 31 October 2018, p 10 (43) – 11 (16)): "One of the aspects of the evidence to which my friend objected and it has not gone into evidence was that part of Assistant Commissioner Corcoran's statement that deals with the location of Goulburn gaol. We've proposed we deal with it on the basis of submissions and, in my submission, that's the only appropriate course. But there has been evidence in this case about aspects that go to the regional location of a particular Corrective Services environment in which an officer might work and that is Mr Evans' evidence about his fulfilling his 150 hours of community service in respect of one of his drink driving matters. Mr Evans was very candid about the detail of that. He said he served the time or, rather, he performed the hours but in respect of one of the locations at which he performed the hours, and this was the reason he was moved from that location, was there was another inmate or former inmate who was there at that location. I made the submission consistent with Assistant Commissioner Corcoran's statement, which is not in evidence, which is that in a regional location the conduct of officers outside the gaol in the regional community are things that can be a matter of notice to the rest of the community and they're relevant to the broader concerns that the Corrective Services has about the conduct of its employees both within and outside the work environment in upholding the law in the community and the example of having to be removed from one location for community service hours to be performed and running into another inmate rather crystallises one of the problems that the Corrective Services foresees when its employees don't comply with the law consistent with cl 7.1." 1. The evidence of Mr Evans to which Ms Douglas-Baker referred related to community service which he was required to perform as a result of his 2013 conviction for a PCA offence. There was the following exchange in cross-examination (Tcpt, 30 October 2018, p 12 (50) – 12 (7)): "Q. What was the community service that you performed? A. There was several. I worked at Goulburn greyhound track. That's at the showground in Goulburn. I worked at Endeavour Industries. They are a recycling organisation. I could no longer work there because one of the other people working there recognised me from they'd been in gaol and I mentioned that to my supervisor and she said, "Well, it's not a good idea we have you there," and then I finished working for Anglicare doing grounds maintenance et cetera." 1. In response to Ms Douglas-Baker's submissions Mr Reitano submitted as follows (Tcpt, 31 October 2018, p 23 (1-10)): "It is an important factor to be considered when you come to deal with a submission that my friend made about the small regional community of Goulburn, and what people would think. You're standing in the shoes; you are Goulburn Correctional Centre, or you are the Commissioner for Corrective Services in this exercise, and it would not be surprising for one moment to people in Goulburn for someone to say, well, people who are battling with serious issues of mental illness and issues related to alcohol consumption, and stress and anxiety and the like, need to be treated carefully and compassionately by the Department of Corrective Services. They should not readily be put on the scrapheap." 1. These submissions do not directly address the contention that Mr Evans' misconduct may have greater resonance in a regional centre such as Goulburn than may be the case in a larger metropolitan centre. I accept that the regional nature of the community in which Mr Evans works is a factor which weighs against him. Conclusions 1. It is difficult not to have sympathy for Mr Evans. He has battled with mental health and alcohol issues for some years. He has lost a job that meant a lot to him. 2. However, there is no avoiding the seriousness of the misconduct in the context of Mr Evans' position with CSNSW and the regulatory framework governing his employment. For the reasons outlined above, I am not satisfied that the matters relied on by Mr Evans in mitigation sufficiently outweigh the gravity of the misconduct to justify a finding other than dismissal. Orders 1. I make the following orders: 1. Direct that the named respondent in the proceedings be amended to the Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (Corrective Services NSW). 2. The appeal is dismissed. ********** 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: 29 November 2018