Industrial Relations Commission New South Wales Medium Neutral Citation: Del Fabbro v Industrial Relations Secretary on behalf of the Secretary, Department of Justice (Corrective Services NSW) [2019] NSWIRComm 1015 Hearing dates: 29 January 2019 Date of orders: 28 February 2019 Decision date: 28 February 2019 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: Appeal allowed Catchwords: PUBLIC SECTOR DISCIPLINARY APPEAL – dismissal – appellant allowed inmates to take contraband into correctional centre – serious misconduct – dismissal not unreasonable or unjust – mitigating circumstances – dismissal harsh – appeal allowed – some punishment warranted – no order for back pay Legislation Cited: Crimes (Administration of Sentences) Act 1999 Government Sector Employment Act 2013 Industrial Relations Act 1996 Government Sector (Employment) General Rules 2014 Cases Cited: Marroun v State Transit Authority [2017] NSWCA 273 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 Category: Principal judgment Parties: Luciano Del Fabbro (Applicant) Industrial Relations Secretary on behalf of the Secretary, Department of Justice (Corrective Services NSW) (Respondent) Representation: Counsel: Mr R Reitano (Appellant) Ms A Douglas-Baker (Respondent) Solicitors: Mr M Jaloussis, McNally Jones Staff Lawyers (Appellant) Mr J Baker, Corrective Services NSW (Respondent) File Number(s): 2018/00197185 DECISION 1. The appellant, Luciano Del Fabbro, has appealed pursuant to section 98 of the Industrial Relations Act 1996 ("the Act") from the decision of Dr Anne-Marie Martin, Assistant Commissioner, Offender Management and Programs, Corrective Services NSW ("CSNSW"), of 16 June 2018, to terminate his employment as an Overseer at the Dawn De Loas Correctional Centre ("DDLCC"). This decision followed a finding of misconduct against the appellant in the following terms: That you on 30 January 2018 at Silverwater – Knew, or should have known, that inmates G,A and S were in possession of unauthorised food items; contraband items, being tobacco and electrical leads, that the inmates subsequently attempted to traffic into Dawn De Loas Correctional Centre, in breach of your duties as an Overseer. 1. The decision to terminate the appellant's employment was made after an investigation was carried out into an incident which occurred on 30 January 2018 at the DDLCC involving the appellant and a number of inmates who were being supervised by him at that time. 2. Prior to the investigation, the appellant was provided with a letter dated 2 February 2018 from Dr Martin which set out the allegation of misconduct by him. This allegation was subsequently broken down into six allegations of misconduct arising from the same factual circumstances: Allegation 1 Contrary to the objectives and core values under ss 6 & 7 of the Government Sector Employment Act 2013. Allegation 2 A breach of s 253G(2)(b) of the Crimes (Administration of Sentences) Act 1999. Allegation 3 A failure to act in accordance with the Code of Ethics and Conduct for NSW Government Sector employees, in failing to demonstrate compliance with the ethical framework for the Government Sector, being failure to comply with principles of integrity, trust and accountability. Allegation 4 A failure to engage in professional conduct contrary to cl 24 of the Crown Employee (Correctional Officers, Department of Justice - Corrective Services NSW) Award. Allegation 5 A failure to act with integrity and to act professionally, contrary to CSNSW Guide to Conduct and Ethics 2010. Allegation 6 A failure to prevent unauthorised and contraband items being taken into a correctional centre, as required by s 16.1 of the Custodial Operations and Procedures Manual. 1. The appellant was interviewed by John P Glasheen, Senior Investigation Officer, CSNSW, on 26 March 2018. The appellant further responded to the allegations by way of a letter received by the investigator on 10 April 2018. 2. Mr Glasheen's investigation report dated 10 April 2018 contained the following: Introduction: Allegation 1. On the 30 January, 2018 Ground Maintenance Overseer Luciano Del-Fabbro had just completed the garbage collection run with inmates G, S and A and were attending the Dawn De Loas gate. At the time the parties were in possession of a two tractors and golf buggy, which contained garbage bins to empty garbage/cardboard on the complex. 2. The golf buggy was being driven by Officer Del-Fabbro and inmate G was sitting in the back tractor and inmate A as the driver. The other tractor did not have a driver. Although the three inmates were with Overseer Del-Fabbro doing the garbage run of the gaols (centres) on the Silverwater Complex and were returning to the Dawn De Loas CC where the inmates were housed. 3. Inmate A was seen to throw six pouches of tobacco into the foot well of one of the tractors. Officer Krishnapacker, and officer working on the gate commenced to search the two vehicles and discovered the six (6) pouches of white Ox tobacco and a quantity of chocolates, chips, peanuts and lollies and various electrical cords/leads, which included jumper leads to start one of the vehicles. 4. A search was conducted of the golf buggy and it was found to contain other chocolates, chips, nuts and muesli bars. All property was confiscated and photographed. All three inmates had their Section 6.2 revoked and regressed in classification and removed from the centre. 5. The NMOS Caldwell was contacted and attended the gate and viewed the contraband in the tractors and golf buggy. Overseer Del-Fabbro was later spoken to by Governor Mannix, MOI Hamlin and A/MOS Caldwell regarding the contraband and his work ethic that day. ……………………………… Investigation: 12. During the course of this investigation, the Investigator arranged to meet with Overseer at 37 Melville Street, West Ryde at a friends' house, David Saghabi on Monday 26 March, 2018. 13. The Investigator on the 22 March, 2018 sent a letter confirming the time and date of the interview, together with the 'Options for Interview', 'Government Sector Employment Rules Part 8 Misconduct, 38 (4)' and 'Government Sector Employment Act 2013 No: 40 (69) Misconduct'… 14. On the 26 March, 2018 Investigators attended 37 Melville Street, West Ryde and met David Saghabi and Overseer Luciano Del-Fabbro. Investigators showed Del­Fabbro the letter sent to him on the 2 February, 2018 and the relevant sections referred to in the allegations sent to him… 15. A recorded interview was conducted with Luciano Del-Fabbro and his observer David Saghabi regarding the allegations in his letter dated the 2 February, 2018. In his reply to the allegations Overseer Luciano Del-Fabbro stated the following…; • I plead guilty to the effect of the confectionery, but the tobacco I have no idea where it came from. • As I stipulated on the electrical lead they found, that is a jumper lead to jump start the tractor battery because we had issues with the battery. • My only failure was the confectionery. • No, I didn't comply because of course I'm guilty of the confectionery. • Yes, I breached some of the rules. • I just followed these inmates everywhere on the buggy and I just did not see where the tobacco came from, no idea. • I have no idea about the tobacco. • A that's the one that was caught with the tobacco. • The lollies, the contraband is OK I'm guilty of bringing in such contraband such as the lollies and confectionery, but again I deny anything about the tobacco because I've got no idea where it came from. 16. On the 10 April, 2018 I received a signed letter from Luciano Del-Fabbro addressing the allegation who stated the following…; • I have failed to prevent unauthorised contraband and therefore I plead guilty in regards to Section 69 (4) and all other section for allowing the confectionery to be bought into the gaol. • I believe the confectionery at the time was not opened and there were no drugs in the confectionery. • In regards to the electrical cable it is used to jump start the tractor and I have no knowledge of any other electrical cables found in the tractor. • Regarding the tobacco I don't know where it was picked up from. • I cannot see all three inmates at the same time due to the area where the work is to be carried out in different locations. • The prisoner or prisoners took advantage of me and must have organised a drop. Comments: 17. Although Overseer Del-Fabbro has stated that he let the three inmates have the lollies, peanuts and chips, which were at or past there use by date, he had the responsibility of supervising the three inmates and not letting them take contraband into the Dawn De Loas Centre. He has been a Prison Officer for the past 32 years and should know what contraband is, even though it was discarded confectionery. 18. Overseer Del-Fabbro should have known the whereabouts of the three inmates at all times whilst he had charge of them, supervising them in their duties on the Silverwater Complex and knowing their whereabouts at all times. 19. Overseer Del-Fabbro had the responsibility of knowing what each inmate was doing. He should have been aware that one of the inmates was bringing tobacco into a Centre as contraband, together with the confectionary that was being discarded from the vending machines. Even though he has stated that in some parts of the complex he could not see what each inmate was doing. He should have been diligent in carrying out his duties. 20. Overseer Del-Fabbro has admitted that he let the three inmates have lollies, peanuts and chips, which came from disposal of the vending machines on the complex (out of date product). It would appear that the items were placed in the garbage bins, together with the tobacco. It appears that Overseer Del-Fabbro was used by the inmates to bring contraband into the centre. Findings: 21. It is apparent that Overseer Del-Fabbro failed in his supervision of the three inmates when he gave them lollies to bring into the centre. He also failed in letting the three inmates have the lollies, peanuts and chips and should have been aware that the inmates were bringing contraband (tobacco) into the centre. 22. Even though he has stated that he was unaware of the tobacco he failed in his responsibilities as a supervisor with these three inmates. 1. On 4 May 2018, Dr Jayson Ware, Acting Assistant Commissioner, Offender Management and Programs, CSNSW, wrote to the appellant and advised him that a finding of misconduct had been made against him pursuant to clause 40(1)(a) of the Government Sector (Employment) General Rules 2014. That letter stated in part: I consider that the evidence against you is of sufficient probative value to enable me to make a finding of misconduct against you concerning the possession by the inmates of unauthorised food items. Indeed, through your several admissions, as discussed above, you knew the inmates were in possession of the food items and preferred that the inmates collect the items for their own consumption, instead of the items remaining in the bins. It is also apparent to me, to the requisite standard, that you knew the food items were to be taken back into DDLCC via the vehicles. To this end, the inmates had secreted the items in various parts of the vehicles, including in a garbage bag wedged between yourself and inmate Saeidi. This bag only became visible, according to the report by A/MOS Caldwell, when inmate Saeidi exited the golf buggy. The evidence shows that you were a willing participant in the food items being taken into the correctional centre, without approval, provided the items were shared between the inmates. The Governor and not authorised the food items to be taken into DDLCC and you did not declare to the gatekeeper that you knew the inmates had the food items in their possession, prior to the discovery of the items. Your actions on 30 January 2018 amount to a failure by you to observe the statutory and policy requirements pertaining to your role, as detailed in Assistant Commissioner Dr Anne Marie Martin's letter to you dated 2 February 2018 and repeated above. 1. Dr Ware advised the appellant that he was considering taking action under section 69(4) of the Government Sector Employment Act 2013 to terminate the appellant's employment, after giving him an opportunity to resign. 2. On 17 May 2018, the appellant attended a misconduct interview with Dr Ware in company with Andrew Wright of the Public Service Association. 3. On 31 May 2018, Dr Ware signed a letter to the appellant affirming his finding of misconduct and the misconduct action which had been foreshadowed in previous correspondence. The appellant did not resign. 4. As a consequence, Dr Martin sent the appellant the letter referred to at [1] above. Background 1. The appellant was first employed as a Correctional Officer in 1986. He commenced at the Long Bay Correctional Centre where he worked for two to three years before transferring to the Silverwater Correctional Centre. After a year, he applied for and was appointed to the position of Overseer. At the time of his dismissal he had approximately 32 years' service with CSNSW and was 75 years of age. Up until the incident which led to his dismissal, the appellant had not, apart from matters referred to below, previously been the subject of disciplinary action. 2. In January 2006, it was alleged that the appellant allowed an inmate out of the Silverwater Correctional Centre on work release contrary to section 26 of the Crimes (Administration of Sentences) Act 1999 which deals with local leave permits. The matter was investigated and the appellant was issued with a "Letter of Warning" signed by Don Rodgers, Commander, on 14 February 2006, which contained the following: Your action in failing to adequately and accurately carry out your duties could amount to misconduct within Section 23 of the Public Sector Employment and Management Act 2002. On this occasion I have determined to take remedial action in accordance with Section 46(1)(b) of the Public Sector Employment and Management Act 2002 in anticipation that you have learned from the experience and will not act so irresponsibly again. However if you are brought to my attention for similar actions in the future I may not be so lenient. 1. It does not appear that the appellant's service came under notice again until August 2017 when an allegation was made by another officer that the appellant was aware of contraband being trafficked into DDLCC by inmate Ronald Anderson. On 4 August 2017, the appellant was interviewed by Police in the Governor's office at DDLCC. Advice from CSNSW Investigations Branch was that no criminality was apparent, however it was the Investigating Officer's opinion that the appellant displayed an apathetic attitude to the carriage of his duties. The appellant was removed from the duty of supervising inmates outside of the correctional centre by the Governor, Linda Ferrett. However, in November 2017, the then Governor, Tracey Mannix, lifted the restriction on the appellant supervising inmates outside of the centre. 2. Apart from these two matters, no other action of a disciplinary nature had been taken against the appellant during his 32 year career until the events which led to his dismissal on 16 June 2018. Incident of 30 January 2018 1. The facts surrounding the incident of 30 January 2018, which led to the appellant's dismissal are, by and large, not in dispute. Tendered into evidence was a statement of agreed facts in the following terms: 1. On 31 January 2018 an allegation of misconduct by Overseer (OS) Del-Fabbro was referred for consideration by the Professional Standards Committee (PSC) by Governor Tracey Mannix via Director Shearer. The matter was subsequently referred to CSNSW Investigations Branch (1B) for a formal investigation. 2. On 30 January 2018 OS Del-Fabbro was directly supervising three inmates (Inmates G, S and A from Dawn De Loas Correctional Centre (DDLCC), all with s.6.2 orders, allowing them to work outside the gates of DDLCC on the Silverwater Correctional Complex) in undertaking a garbage collection run at Silverwater Correctional Complex. 3. Three vehicles were utilised for this purpose, with inmate A driving a tractor, a trailer/rear vehicle containing inmate G, whilst OS Del-Fabbro followed in a golf buggy with inmate S. 4. The garbage collection run involved the emptying of rubbish and material for recycling. 5. OS Del-Fabbro admitted he allowed the inmates to collect and keep a number of chip and confectionery items from bins outside the MRRC, which had apparently been disposed of from vending machines. 6. When the inmates and OS Del-Fabbro returned to the gates at DDLCC the vehicles were searched. Six pouches of tobacco were located in the vehicle driven by inmate A. Further searching of his vehicle located food and confectionery items. 7. In a toolbox in the back tractor, food and confectionery items were located as were similar items and electrical cable, in a black garbage bag between inmate S and OS Del Fabbro on the front seat of the golf buggy. 8. OS Del-Fabbro has maintained he had no knowledge of how the tobacco came to be in the possession of inmate A. 9. OS Del-Fabbro has admitted to allowing the inmates to collect the confectionery. 10. OS Del-Fabbro had been employed by the Respondent for 32 years. Case for the respondent 1. The following was contained in the witness statement of Ms Mannix: 19. On 30 January 2018 I spoke to Overseer Del Fabbro following verbal advice to me that a number of inmates and their vehicles had been searched on their return to Dawn De Loas Correctional Centre gates and found to be in possession of tobacco, packets of chocolates, chips, peanuts, lollies and electrical leads. 20. Overseer Del Fabbro told me he had told the inmates they could have the food items they collected from the rubbish bins and take the items back into Dawn De Loas Correctional Centre as long as they shared the food. He also told me some of the food was for him. 21. I recall that Overseer Del Fabbro kept repeating 'sorry, it's only chocolates, it's only food' and seemed to be quite nonchalant about the matter. He did not appear to be concerned or appreciate the seriousness of his actions or the gravity of the attempted breach of security. 22. I said to Overseer Del Fabbro 'sorry ls not going to cut it this time, Lou'. I also told him I would be making a report to the Director and he would be placed on recreation leave. …………………………………. 24. At no time was Overseer Del Fabbro, or any inmates under his supervision, authorised by me to bring any items through the gates of Dawn De Loas Correctional Centre, without such items being screened or otherwise inspected by the OIC of the gate, in accordance with the Custodial Operations Policy & Procedures and under Local Orders. 25. The maintenance of the good order and security of the correctional centre requires that all items being taken through the gates of the correctional centre must be inspected in order to prevent contraband and any unauthorised items being taken into the correctional centre. Many things present a danger to both staff and inmates, and may result in drug abuse, violence in the correctional environment and the commission of further criminal activity. 26. I consider that Overseer Del Fabbro's lack of supervision of the inmates on 30 January 2018 and indeed, that he was complicit in and encouraged the inmates in taking items hidden in the maintenance vehicles, back through the gates of Dawn De Loas Correctional Centre, without inspection, to be a significant failing in his responsibilities as an Overseer, to ensure the maintenance of the good order, discipline and security of the correctional centre. 1. The respondent listed the following documents as forming part of the regulatory context within which the appellant was employed with CSNSW: a. section 253G of the Crimes (Administration of Sentences) Act 1999 (NSW) (CAS Act); b. Corrective Services NSW - Guide to Conduct and Ethics 2010 edition (Guide to Conduct and Ethics); c. Section 16.1 of the Correctional Centre Gates – CSNSW Custodial Operations Policy and Procedures Manual (CSNSW OPPM); d. sections 6, 7 and 8 of the Government Sector Employment Act 2013 (NSW) (GSE Act); e. clause 24 of the Crown Employees (Correctional Officers. Department of Justice - Corrective Services NSW) Award (Award); f. Behaving Ethically - A Guide for NSW Government Sector Employees - NSW Public Service Commission). 1. In a written outline of submissions, the respondent canvassed the background of the appellant including the incident which occurred in August 2017 and led to the appellant being placed on a "Performance Management Plan" which involved him being restricted from working outside the DDLCC and being closely supervised for approximately three months. The incident of 30 January 2018 was also canvassed in detail as was the disciplinary process which led to the termination of the appellant's employment. 2. The respondent's submissions also referred to the demand for contraband in the correctional system and the security risks posed by contraband being taken into correctional centres. 3. The submissions continued as follows: Respondent's Submissions Misconduct – s 69 of the GSE Act 68. What is common ground between the parties is that the applicant, on 30 January 2018, knowingly permitted inmates to collect and (in effect) bring into the DDLCC confectionary and other items of food. 69. What may not be common ground for the purposes of these proceedings is whether the applicant has accepted that it was wrong of him to have permitted the inmates so to do and that this constituted a contravention of one or more of the instruments identified in Allegations 1 to 6… 70. Allegations 1 to 6 were further put to the applicant during his interview with Senior Investigation Officer Glasheen. While the applicant repeatedly accepted during that interview that he was in breach of his duties, or in breach of the "regulations", it is arguably not clear to what instrument in particular he was meaning to refer… However, the applicant did accept that his conduct was a failure to act with integrity…, which is, in effect, an admission as to Allegations 1, 3 and 5, possibly also Allegation 4. In his statement the applicant does not deny that he was in breach of the regulations in allowing inmates to keep the confectionary and other food items…. The applicant's compendious reference to "regulations" should be construed as an admission on the applicant's part that he breached each of the regulations particularised in Allegations 1 to 6. 71. While the respondent does not contend that the applicant has breached s 253G(2)(b) of the CAS Act in the sense that he might be criminally convicted, what is plain is that bringing contraband into a correctional centre is so serious a matter that such conduct attracts criminal sanction amounting to what would be a "serious offence" for the purposes of s 69 of the GSE Act, and the applicant accepts that he did so in breach of s 253G(2)(b) of the CAS Act. Even so, the applicant, having been employed for 29 of his 32 years with CSNSW as an overseer, knew or should have known that no person was allowed to bring into a correctional centre items which had not been approved. It was and is not sufficient for the applicant to assert that he did not see the "harm" in permitting the inmates to bring confectionary into the correctional centre…, particularly in circumstances where just five months earlier the applicant had been interviewed in relation to the conduct of inmate Anderson who was found with tobacco, drugs and hypodermic needles, among other contraband items… and placed on a performance management plan…. 72. While the applicant said that he had no knowledge of inmate Anderson's conduct, it should have been apparent to the applicant, as a result of the Anderson matter, that the bringing of contraband items into the correctional centre was strictly forbidden and a serious matter. Moreover, the respondent's evidence establishes that staff are repeatedly reminded on parade and at staff meetings of the importance of vigilance with respect to the bringing of unauthorised items into the correctional environment…. 73. To the extent that the applicant asserts that he was required to supervise up to ten inmates at a time, or that he could not directly supervise each inmate the entire time, that is not to the point. It is apparent that the applicant was assisted with strategies to discharge his duties in the terms set out in the respondent's reply evidence…. The applicant made no attempt to deploy those strategies on 30 January 2018. Rather, he permitted the inmates to bring contraband into the correctional centre, which is what would have happened were it not that the inmates and the vehicles were searched by officers at the gate. In doing so the applicant acted without authority and in dereliction of his duties as an overseer, as alleged. 74. The respondent contends that the applicant's admitted conduct in permitting inmates to bring into the correctional environment items of contraband constitutes a breach of his duties as an overseer in the employ of CSNSW. In particular, the respondent contends that the applicant engaged in misconduct as charged in each of Allegations 1 to 6. To the extent that the applicant permitted the bringing in of contraband items his conduct is certainly inconsistent with s 253G(2)(b) of the CAS Act, albeit it might not give rise to either a criminal charge or conviction. In all the circumstances the respondent contends that the Commission would find the applicant guilty of misconduct in the terms alleged in Allegations 1 to 6 and therefore that the misconduct for the purposes of s 69 of the GSE Act is proved. Disciplinary Action to be Taken - s 100C of the IR Act 75. The respondent contends that 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. 76. The respondent contends that the order for termination is appropriate in the present case for the following reasons: a. notwithstanding the applicant's cooperation and candour with the respondent's investigation, which is acknowledged, the applicant has admitted conduct which amounts to misconduct; b. this is the second occasion within five months that questions were raised about the applicant's discharge of his duties as an overseer; c. in respect of the first occasion, the respondent contends that the fact that the applicant was performance-managed and counselled in relation to the discharge of his duties ought to have impressed upon him the importance of his duties insofar as they were directed to preventing contraband from entering the correctional centre; d. in respect of the second occasion, the applicant has admitted that he permitted the inmates to bring contraband items into the correctional centre for, among other reasons, he did not consider there to be any "harm"; e. in light of what is set out at paragraph c above, what is set out at paragraph d above is a weak explanation for the applicant's conduct; and f. given that the applicant had been performance managed in respect of his role in failing to apprehend an inmate bringing in contraband, and that he permitted three inmates to bring contraband into the correctional centre some five months later, means that the respondent has no confidence that the applicant can be trusted to discharge this central aspect of his duties as an overseer. 77. In light of these matters, the appropriate order is that the Commission confirm the order for dismissal. Orders 78. The application should be dismissed. Case for the appellant 1. The appellant acknowledged that he had been placed on a three month Performance Management Plan following the incident of 1 August 2017 involving inmate Anderson. 2. In relation to the incident of 30 January 2018, the appellant gave the following evidence: 24. On the day in question in January 2018, I had three inmates in my team. I left two inmates at the compactor and left with the other inmate to collect the garbage bins and put them onto the back of the trailer. I kept him under observation from the buggy while he collected the bins. Once the trailer was full of garbage bins, we took them to the compactors, unloaded them, loaded empty bins onto the trailer and dropped them off at various places from where the full bins had been collected. We then brought back more bins full of rubbish. Any cardboard waste would go into the back of the trailer. 25. The inmate collecting the rubbish bins and I did about 6-7 trips to the compactors. The number of trips would depend on the amount of garbage collected 26. While I supervised the inmate collecting the bins, the other inmates were left unsupervised. 27. On 30 January 2018, while we were at the compactor area, the inmates showed me some bags of chips, lollies and chocolate bars that they had found in the bins. Some of the packets were 'out of date' but others were not. I believed that the contractor who would normally restock the vending machine had discarded them. All the bags were unopened. 28. The inmates asked me if they could keep the items they had found. I understood that these items constituted contraband, however, I thought it would be a waste to throw them away and saw no harm in letting them keep them as the bags were sealed. It is essential that I develop a good rapport with the inmates I supervise, and I saw this as an opportunity to achieve that. I checked all the bags to ensure they were sealed. I saw this as a treat for the inmates. I did not want any of these items for myself. I told them they would have to share them with the other inmates working in the maintenance section and they agreed. 29. I accept that I did the wrong thing by letting them keep these items and I sincerely apologise for that. I have since realised that the bags could have been tampered with and other items placed inside them, then sealed again. This did not occur to me at the time, as the bags did not appear to have been tampered with. 30. I did not see any pouches of tobacco or 'electrical cables'. I do not know how the tobacco came to be in the possession of one of the inmates and I do not know where they found the cables, which I believe may have been jumper leads used to start the tractors if we had trouble with them. 31. One of the trailers had a toolbox on it, which contained the jumper leads. In the time that I have worked outside with the inmates, the toolbox has never been searched. Therefore, I don't know for how long those cables may have been in the toolbox. 32. An inmate put some of the food items into a black garbage bag and placed it on the front seat of the golf buggy, between him and me. 33. I was not aware that the prisoners had put other items in the toolbox and in the trays of each of the tractor. However, I was aware that they prisoners had placed some of the chocolate bars and lolly bags into their pockets. 34. I have asked for other overseers to assist me when I had many inmates working with me and sometimes I would be given another overseer to assist me. 35. I was not aware that an inmate had brought contraband into the gaol in August 2017 until I was informed of this by the Police and the investigator. 36. I was never told to be extra vigilant to ensure no contraband was coming into the gaol through the garbage collection. If I had, I would have acted differently. 37. There are CCTV cameras at the entrances of each gaol and the roadway where visitors come through. There are no CCTV cameras in the compactor area. 38. There was no need for the food items to be hidden from view because we were hardly ever searched when we returned to the gaol. 39. On 30 January 2018, we were searched at the gate, and that is when the items were found, including the tobacco and the cables. 40. Vending machines in the visitors 'area do not sell tobacco as tobacco has been banned from all correctional centres in New South Wales. 41. While I sat in the golf buggy I was able to keep the inmate under observation as he collected the bins from the different areas. The only time that I had no vision of him was in the transport section when he had to go around a corner to collect the two bins. At this time, he would have been out of my vision for no more than a minute. 42. I have no idea where the tobacco was found, or whether it was planted by an associate of the inmate who had it in his possession. 43. I am not aware of where the cables that were found came from, as I had not seen them prior to the gate officer discovering them when he conducted the search. As these cables were found in the toolbox, I am unaware as to whether these had been left in the toolbox for quite some time. 1. In relation to his personal circumstances, the appellant gave the following evidence: 48. I am currently going through a very bitter divorce and property settlement. I have no children. 49. I have applied to Centrelink for unemployment benefits but was told I was too old to get these benefits, but I could apply for the age pension. 50. I have no income as I used my termination monies to pay off credit card debts and to pay the lawyers acting for me in the Family Law matter. 51. I have tried to get work, but my age is an impediment. 52. I have enjoyed my years working as an overseer and I believe I have established a good rapport with the prisoners. I would like to return to my work as an overseer. 1. The following submissions were put on behalf of the appellant: Facts 1. Mr Del Fabbro's employment as an Overseer with the Industrial Relations Secretary (on behalf of the Department of Justice, Corrective Services) (Corrective Services) was terminated on 16 June 2018 as a result of a finding that he engaged in misconduct. 2. The misconduct alleged against him was that on 30 January 2018 at Silverwater he: Knew, or should have known, that inmates G, A and S were in possession of unauthorized food items; contraband items, being tobacco and electrical leads, that the inmates subsequently attempted to traffic into Dawn De Loas Correctional Centre (DDLCC), in breach of your duties as am (an) Overseer 3. On 30 January 2018 Mr Del Fabbro was supervising three inmates, G, A and S, who were working outside of DDLCC, but within the grounds of the Silverwater Correctional Complex. The inmates were each the subject of orders under ss 6(2) of the Crimes (Administration of Sentences) Act 1999 (NSW). 4. It is important, in order to put the misconduct into its proper context, to appreciate that the inmates were not working in the general community or 'at large', but were within the grounds of the Silverwater Correctional Complex (a place where, presumably, pouches of tobacco and other illicit goods would not, and certainly should not, ordinarily be found). 5. The work the inmates were doing involved garbage collection using a tractor, a trailer and a golf buggy. The procedure adopted involved two inmates working at the compactor whilst the other inmate and Mr Del Fabbro collected the garbage bins, put them on the back of the tractor, took them to the compactors, unloaded them, emptied the bins and then returned the bins from where they came. It follows that whilst Mr Del Fabbro was collecting bins supervising one inmate the other two were unsupervised. 6. While the two inmates working at the compactor were performing their work they discovered some unopened packets of chips, lollies, peanuts and chocolate bars, some of which, but not all of which, were 'out of date'. They had apparently been disposed of from vending machines within the Correctional Complex. 7. The inmates then asked Mr Del Fabbro if they could keep them. Mr Del Fabbro agreed to their request so long as they shared them with other inmates. Mr Del Fabbro's thinking in this regard (which explains, but does not excuse his decision to allow the inmates to keep the confectionary items) was that the items would be wasted otherwise, they were unopened and allowing the inmates to keep the items permitted him to build rapport with the inmates. 8. When the vehicles returned to DDLCC they were unusually the subject of a search. Six pouches of tobacco and, unsurprisingly, confectionary (presumably that referred to above) were found in the vehicle driven by the inmate, A. Some more confectionary and some electrical leads and jumper leads to start one of the vehicles were found in the tool box at the back of the tractor. 9. Mr Del Fabbro had, and has, no knowledge of how the tobacco came into possession of the inmates or for how long the cables might have been in the tool box. In the vehicle driven by Mr Del Fabbro there was found on the front seat between Mr Del Fabbro and the inmate a black plastic bag containing items of confectionary. 10. Mr Del Fabbro has admitted from the outset that he was aware that the inmates were in possession of the food items and were bringing them into DDLCC. He has admitted he made a mistake. He has admitted what he did was stupid. He has apologized for what he did. He has demonstrated an understanding of why what he did was wrong. He promises not to do the same thing again. 11. Mr Del Fabbro had worked for Corrective Services for almost 32 years, 29 of which he has spent working as an Overseer. The work he performed as an Overseer over 29 years was much the same kind of work that he performed on 30 January 2018. He has an unblemished employment history over that time (despite Corrective Services attempt to suggest otherwise) in what undoubtedly is a difficult work environment. He was 75 years of age at the time of his dismissal. The 'Anderson' episode 12. It is necessary briefly to say a few things about the 'Anderson' incident that is referred to in the ROS. 13. First, Mr Del Fabbro objects to all of the evidence concerning the Anderson incident, especially the hearsay evidence involving statements attributed to Mr Anderson which are said to implicate Mr Del Fabbro, because to allow that evidence would deny Mr Del Fabbro procedural fairness. 14. Second, there is simply no foundation, evidentiary or otherwise, for Corrective Services' submission that Mr Del Fabbro 'had been performance managed in respect of his role in failing to apprehend an inmate bringing in contraband... into the correctional centre.' There is no evidence that would support such a finding. On that basis the Commission would have no regard to the submissions relating to the Anderson incident. 15. Third, it should be noted that the 'contraband' in issue in that case was of a very different kind than that which was involved in this matter. 16. Finally, although Mr Del Fabbro was, without any justification, 'performance managed' (something that was presumably intended to acquaint him more closely with what was required of him while performing his overseeing duties outside the DDLCC) nothing was done at that time to acquaint, or assist, him in what was expected of him whilst performing duties involving overseeing inmates collecting garbage. For example, 'performance management' was not undertaken such that directed his attention to the facility of searching inmates upon their return to DDLCC (as Ms. Ferrett more latterly suggests was available to Mr Del Fabbro). In fact he was entirely removed from performing any of those duties for a period of three months; something that may well explain his lapse on 30 January 2018 rather than make it more egregious. There was no 'close supervision' or training or retraining or assistance given to Mr Del Fabbro in respect of any of the duties associated with what gave rise to his dismissal. 17. These matters moderate, and diminish the relevance, of the suggestion that the performance management somehow operated as a reminder to him about contraband generally or somehow better equipped him to understand what was expected of him. Issue 18. The issue is whether the Commission should 'allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit.' The appeal concerns the disciplinary action taken against Mr Del Fabbro to dismiss him following the giving to him of an opportunity to resign. The scope of the appeal 19. The Commission stands in the shoes of Corrective Services in deciding the matter and the matter before the Commission is the decision of Corrective Services to take the action of dismissing Mr Del Fabbro after giving him an opportunity to resign. 20. The correct approach to s 100C confines the appeal to a review of the specific allegations of misconduct upon which punishment was based. 'The subject matter of the appeal, and thus the matter to be determined by the Commission, is the decision of the public sector employee (employer) to take specific disciplinary action.' The question here is whether the disciplinary action taken, namely dismissal, was warranted by the conduct which formed the basis of the disciplinary charge. 21. The conduct that formed the basis of the disciplinary charge so far as it has been proven involves Mr Del Fabbro having knowingly permitted inmates to bring food items into the DDLCC from the Silverwater Correctional Centre. That conduct constitutes misconduct. Mr Del Fabbro admits (and has admitted at all times) that from wherever the obligation upon him specifically arises it was wrong for him to allow an inmate or inmates to bring food items into DDLCC. 22. The misconduct having been admitted, the real and substantial issue is whether in the circumstances the Commission should confirm the dismissal or make some other decision. The following matters are relevant: a. The misconduct that has been found against Mr Del Fabbro did not involve dishonesty, personal gain, violence or criminal conduct; b. The misconduct was the result of an error of judgment or, as Mr Del Fabbro put it, stupidity; c. The misconduct, whilst involving contraband in the strict sense, did not involve illicit or illegal goods in themselves, in that sense the food goods did not involve any 'harm'; d. Mr Del Fabbro was (wrongly) actuated by a motive of not wasting the food items and building a rapport with the inmates rather than anything else (something which he now realizes was stupid); e. Mr Del Fabbro has admitted his wrong doing at all times, co-operated fully with Corrective Services investigation and been frank and forthright about what happened; f. Mr Del Fabbro has recognised what he did was wrong and has apologised for what he did; g. Mr Del Fabbro has had nearly 32 years in the employ of Corrective Services and 29 years as an Overseer, with no disciplinary record at all; h. Mr Del Fabbro is 76 years of age and has no realistic prospect for obtaining alternative employment especially having regard to the fact that he has been employed by one employer for so long and, should the dismissal be upheld, will go into the employment market having been dismissed from his last job; and i. The personal consequences to Mr Del Fabbro in his particular circumstances render the decision to dismiss him from employment particularly harsh. 23. The decision to dismiss Mr Del Fabbro from employment should be set aside and consequential orders for lost pay and continuity of service should be made. Determination 1. I am acutely aware of the regulatory context in which correctional officers, such as the appellant, work. This context strictly forbids unauthorised items and contraband being taken into correctional centres. By allowing inmates to take items of confectionery into the DDLCC the appellant has committed serious misconduct. 2. It was the appellant's understanding that the confectionery was contraband but he allowed inmates to take it into the correctional centre regardless. His failure to detect the pouches of tobacco constituted negligence and compounded the seriousness of his misconduct. 3. I accept the respondent's submission that the counselling the appellant received following the "Anderson incident" should have heightened his sense of awareness with respect to the importance of preventing contraband from being taken into a correctional centre. 4. The respondent is entitled to have a zero tolerance policy when it comes to correctional officers knowingly or negligently allowing contraband to be taken into correctional centres. It is difficult to conceive of a situation where the dismissal of an officer in such circumstances could be regarded as unjust or unreasonable. 5. However, it is the function and responsibility of this Commission in an appeal such as the present one to conduct a fresh hearing on the basis that the Commission "stands in the shoes of" the original decision-maker (Marroun v State Transit Authority [2017] NSWCA 273 at [35]). It would be an abrogation of that responsibility for the Commission to reject an appeal solely on the basis that it was in agreement with the decision-maker that the appellant was guilty of serious misconduct. It has long been the function of this Commission to consider whether or not a particular dismissal for misconduct was, nevertheless, harsh. 6. In Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch ([1973] AR (NSW) 231) Watson J stated as follows (at 233): 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. This is such a case. The circumstances which have led me to conclude that the dismissal of the appellant was "too harsh a consequence" for his admitted misconduct are as follows: (a) The appellant had approximately 32 years of service with CSNSW, 29 of them as an Overseer. Apart from the matters referred to at [12] and [13] above, his service has not come under adverse notice in the past. Until the incident which led to his dismissal, the appellant had not previously been the subject of any formal disciplinary action. (b) The appellant readily admitted his misconduct and cooperated in the subsequent investigation. (c) The appellant did not stand to gain personally from his actions and he has apologised for them which he admitted to the Governor and to the investigator were stupid. (d) I formed the impression of the appellant that he was genuinely sincere in owning up to his misconduct and would not repeat it if he was reinstated. (e) The appellant is 76 years of age and his prospects of finding suitable alternative employment must be doubtful. (f) The financial impact of the loss of his job has been particularly severe. 1. Without this rare, perhaps unique, combination of mitigating circumstances I would have had no hesitation in disallowing this appeal. However, for the reasons set out above, I have decided to allow the appeal and order the reinstatement of the appellant. 2. As previously stated, knowingly or negligently allowing contraband of any sort into a correctional centre is an extremely serious matter. It cannot be allowed to go unpunished. I decline to make any order pursuant to subsection 100D(1)(b) of the Act. As a consequence, the appellant will suffer the loss of his regular income for the period 16 June 2018 until the date of his reinstatement, which represents a significant financial penalty. 3. Hopefully, this decision will send a strong message to correctional officers generally that allowing contraband into correctional centres will have serious consequences. Apart from cases involving significant mitigating circumstances, such as the present matter, the outcome will almost certainly be dismissal. Orders 1. I make the following orders: 1. The appeal by Luciano Del Fabbro against the decision of Dr Anne-Marie Martin made on 16 June 2018 to terminate his employment is allowed. 2. Mr Del Fabbro is to be reinstated to the position he held with Corrective Services NSW immediately before his dismissal on 16 June 2018 on the same terms and conditions as applied to his position at that time. 3. Order 2 is to take effect from Monday, 11 March 2019. 4. No order is made for payment to Mr Del Fabbro for the period between the time of his dismissal and 11 March 2019, which period is not to count as service for any purpose. 5. Despite order 4 Mr Del Fabbro's service is to be taken as having not been broken by virtue of his dismissal and the period between then and his reinstatement pursuant to orders 2 and 3. John Murphy Commissioner ********** Amendments 04 March 2019 - Information redacted paragraphs 1, 5, 15, and 24 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: 04 March 2019