Alameddine v Railcorp

Applicable law and principles

1. The Commission's powers in a disciplinary appeal of this kind are contained in Ch 2 Pt 7 of the IR Act 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: ………………. (b) a decision to reduce the rank, classification, position, grade or pay of the employee, ……………… 100C Decisions with respect to appeals … (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. 100G Presentation of cases (1) A public sector employer must present the employer's case to the appellant at least 7 days before the hearing of a disciplinary appeal. (2) At the hearing of an appeal under this Part, the public sector employer's case is to be presented first. (3) Nothing in subsection (2) removes from an appellant or any other person the onus of proving any ground on which the appellant relies.
2. An appeal under Ch 2 Pt 7 of the IR Act is a hearing de novo to be determined upon the evidence and submissions presented by the parties before the Commission: Secretary, Department of Justice v Schoeman [2014] NSWIRComm 40 at [184(9)]. The Commission does not simply review in a procedural sense the decision of the initial decision maker: Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91.
3. The Commission may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. The Commission is not constrained merely to accept or reject the initial decision and may impose another sanction if it sees fit, including a harsher sanction than that which the initial decision maker imposed: Grech v State Transit Authority [2014] NSW IRComm 1030 at [8].
4. In Schoeman the Industrial Court summarised the relevant principles governing the Commission's jurisdiction in public sector disciplinary appeals: [184(1)] The provisions of Pt 7 of the IR Act concerning disciplinary appeals do not evince a legislative intention to limit the scope of an appeal in the manner contemplated by the Commissioner and, in particular, do not contemplate an appeal being foreclosed by a determination of whether or not an employee had, contrary to any opinion formed by the Director-General, engaged in misconduct. .... [184(7] Further, I am unable to discern a legislative intention to confine an appeal to, as the Commissioner found, a review only in the specific allegations of misconduct upon which punishment was based, and by implication only materials which formed the basis for that decision. Based upon the foregoing analysis of the statutory scheme in Pt 7 of the IR Act, the Commission is not entitled to disregard matters relevant to the exercise of its discretion to determine an appeal in relation to 'a dismissal' under s 100C, which include relevant evidence as to supervening facts: see Murray at 464. In this case, the December and January letters were relevant because of the protective nature of the jurisdiction and were particularly relevant to the matters referred to in s 41(a) and (b) and because they were relevant to the making of a determination under s 100C(2).... [184(7) and (8)] This is not to suggest that a misinformed opinion of the Director-General as to misconduct may not play a role in such deliberations, but that the analysis undertaken may not begin and end at that point. Other affirmative factors for the respondent will also be relevant such as character references and her employment record. [184(9)] These conclusions are further confirmed by reference to the nature of an appeal under Pt 7 of Ch 2 of the IR Act. As the Commissioner correctly observed below, an appeal under s 98 is a hearing de novo: see Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91 ('Calman'). In Calman, the High Court noted that such a hearing empowered GREAT under s 24 (the predecessor provision to s 98) to "inquire into the merits of the matter before it...in a manner which is distinct from the process adopted by the administrative decision-maker at first instance" (at [28]). … [184(13)(e)] The jurisprudence of the Commission is such that the fact of an employee not being guilty of a charge of misconduct will be a significant factor in support of exercising a discretion in their favour (see Pastrycooks at 84; see also Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 at 87; George Maitland v Royal Blind Society of New South Wales [2004] NSWIRComm 368 at [19] and Burge at 5). … [185] There was no requirement that the Commissioner make a finding that the respondent had engaged in the misconduct as charged before exercising his protective function under Pt 7 of the IR Act. The making of such a finding did not extinguish the protective jurisdiction the Commissioner was required to exercise under Pt 7 of the Act... the Commissioner failed to have regard to the December and January letters and other matters relevant to the exercise of a protective function such as the respondent's overall relationship with the Department. [186] Director General, Department o[186] f Ageing, Disability and Homecare v Lambert [2009] NSWCA 102 is authority having compelling force in the present proceedings and should result in the conclusion that the jurisdiction of the Commission under Part 7 is protective in nature. [Underlined emphasis added]
5. I see no reason why these principles are not equally applicable where the disciplinary action is reduction of remuneration and classification under paragraphs (b) and (c) of s 68(2) of the GSE Act, as opposed to termination of employment for misconduct pursuant to section 69 of the GSE Act.
6. Accordingly, I am not restricted to the matters that were the subject of consideration by the original decision-maker Mr Shearer, or the materials which formed the basis for his decision. I therefore firstly turn to an assessment of Mr Cunningham's performance in his role as Assistant Superintendent at OMMPCC on the available evidence before me, to determine whether, and if so how, his performance was unsatisfactory.

Requirements of the Assistant Superintendent role

1. In October 2016, Mr Cunningham was required to undergo a formal performance management process. A document entitled 'Performance Management Plan' dated 22 October 2016 was used as the basis for this process (the "PMP"). The process was commenced by a letter from Mr Will McPhillips, the-then Acting General Manager of OMMPCC, to Mr Cunningham dated 10 October 2016 (the "PMP Letter").
2. The PMP Letter states that unacceptable performance is "performance that does not comply with the standards expected as set out in the role description, the Department of Justice core values, the Department of Justice code of conduct, and all relevant policies and procedures". I have considered these documents to identify the requirements of Mr Cunningham's role of Assistant Superintendent.
3. The Role Description for the position of Assistant Superintendent sets out Key Accountabilities, Key Relationships, a Capability Summary and Focus Capabilities for the role.
4. The Key Accountabilities include: controlling the structured day routine for inmates/offenders and the conduct of daily accountable activities to contribute to inmates/offenders discipline and order within the Centre; monitor inmate accommodation; oversee intelligence gathering within the centre, implementing established procedures and protocols in relation to security, safety and hygiene; supervise officers and oversee the method utilised in maintaining the security of the centre ensuring a secure and stable environment for inmates/offenders, custodial and other staff; administer and analyse inmate orders and applications that leave programs; participate in reception, induction, retention, transportation/escort and release of inmates/offenders; manage staff grievances and manage disputes between staff and inmates/offenders to minimise ongoing conflict; and coordinate and manage rehabilitation programs or offices on workers compensation. [Underlined emphasis added]
5. The Key Relationships are the Senior Assistant Superintendent for reporting and guidance when required to ensure the optimum performance of duties and the safe and secure operation of the Centre; and Senior Correctional Officers/Correctional Officers for providing supervision, guidance and advice.
6. The Capability Summary sets out the full list of capabilities and the level required for the role of Assistant Superintendent. The capabilities particularly relevant to an assessment of Mr Cunningham's performance in the context of this matter are as follows: 1. Personal attributes - display resilience and courage (adept), act with integrity (intermediate), manage self (intermediate)…; 2. Relationships - communicate effectively (intermediate); …, work collaboratively (intermediate) ….; 3. Results - deliver results (intermediate); …, …, demonstrate accountability (intermediate); 4. …. 5. People management - manage and develop people (intermediate), inspire direction and purpose (intermediate),…, ….
7. The bolded words are the Focus Capabilities for the role, being the capabilities in which occupants must demonstrate immediate competence. There are a number of indicators of the types of behaviours expected at that level which the Role Description states should be reviewed in conjunction with the Key Accountabilities. The behavioural indicators particularly relevant to an assessment of Mr Cunningham's performance in the context of this matter are as follows: 1. Act with integrity - represent the organisation in an honest, ethical and professional way; support a culture of integrity and professionalism; understand and follow legislation, rules, policies, guidelines and codes of conduct; help others to understand their obligations to comply with legislation, rules, policies, guidelines and codes of conduct; 2. Communicate effectively - listen to others when they are speaking and ask appropriate, respectful questions; monitor own and others' non-verbal cues and adapt where necessary; 3. Demonstrate accountability - take responsibility and be accountable for own actions; and 4. Manage and develop people - develop team capability and recognise and develop potential in people; be constructive and build on strengths when giving feedback; identify and act on opportunities to provide coaching and mentoring; recognise performance issues that need to be addressed and work towards resolution of issues.
8. The New South Wales Justice Code of Ethics and Conduct Policy requires employees to demonstrate the core values of the public sector and Department. The parts of the Code that Corrective Services submitted were relevant to an assessment of Mr Cunningham's performance are in Part Six - Professional Behaviour: 6.1 Treating people with dignity and respect All employees have the right to be treated with respect, and it is everyone's responsibility to ensure this occurs. Employees are to treat their colleagues, clients, their families and members of the public with respect, fairness and consistency. Employees are to be courteous and sensitive to the needs of others and provide all necessary and appropriate assistance as practicable.… … 6.3 Professional behaviour towards employees and others As professionals employees must strive at all times to relate professionally to colleagues, clients, their families and members of the public and to act with courtesy and fairness. In dealings with others, staff should ensure that they do not prejudice the operations, security or reputation of the Department…. [Underlined emphasis added]

Conduct constituting unsatisfactory performance

1. Corrective Services asserts the basis for the disciplinary action as being Mr Cunningham's unsatisfactory performance. Section 68 of the GSE Act confers powers on the head of an agency to take action where performance is determined to be unsatisfactory: (1) The government sector employment rules may deal with the procedural requirements for dealing with unsatisfactory performance (consistently with procedural fairness). (2) If the performance of an employee of a government sector agency is determined to be unsatisfactory in accordance with those rules, the head of the agency may (without limitation on relevant action) take any of the following actions: (a)terminate the employment of the employee (after giving the employee an opportunity to resign), (b) reduce the remuneration payable to the employee, (c) reduce the classification or grade of the employee, (d) assign the employee to a different role.
2. The first task in this appeal is to consider what conduct was engaged in by Mr Cunningham and whether it constituted unsatisfactory performance. The operation of the onus of proof in disciplinary appeals was explained in Goodwin v Secretary of the Ministry of Health (in respect of the Ambulance Service of New South Wales) [2016] NSW IRComm 1044: [112] It should also be noted that, whilst subsection 100G(3) makes it clear that the appellant bears the onus of proving any ground on which the appellant relies, once an appellant places before the Commission evidence which calls into question the factual basis upon which the respondent based the disciplinary decision, the evidentiary burden of proving those facts may shift to the respondent (see Bigg at 455; Brady (Inspector of Taxes) v Group Lotus Car Cos pls and another [1987] 3 All ER 1050 at 1059-1060).
3. The PMP Letter stated that Mr McPhillips wished 'to bring to Mr Cunningham's notice 'several examples of performance/behaviour', then lists some matters which are stated to be 'by no means exhaustive': * communications issues with other staff * disrespectful and aggressive behaviour * inability to take instructions and directions * insufficient managerial skills * poor interpersonal communication skills * disruptive behaviour within the customary or environment * lack of foresight in managing in the custodial environment
4. In my view these are not 'examples', but rather broad categories or areas of unsatisfactory performance. The PMP Letter does not particularise how Mr Cunningham's managerial skills are, for instance, considered to be 'insufficient', in what specific respects his interpersonal communication skills are said to be 'poor', or the issues experienced by staff in his communications with them.
5. The evidence established that the one PMP document dated 22 October 2016 was used by Mr Calder throughout the process. The PMP itself does not contain examples of the unsatisfactory aspects of Mr Cunningham's performance. It sets out the 'Work Performance Issues to be Addressed', the goals or standards expected in respect of that issue and the actions required. Relevantly, they are: 1. Professional behaviour in the workplace - as an Assistant Superintendent the standard expected is advanced and at a consistent level that sets a positive example for others - see Role Description and Capability Framework; 2. Maintain appropriate standards of conduct and work-related performance - you will display integrity, leadership and appropriate role modelling at all times including positive communication skills, take responsibility and be accountable for own actions; 3. To continue with your present personal and professional support in dealing with historical or past events in order to manage your emotions and interactions within the workplace - you will actively monitor your personal feelings in light of past events or any other event that causes you to become verbally upset, anxious or uneasy in order to ensure you seek timely support if required; and 4. Attend training in management and leadership - learn skills to better manage self and others.
6. The PMP was for a period from 17 October 2016 to 17 January 2017, with review fortnightly by manager.
7. Mr Calder gave evidence that he met with Mr Cunningham on multiple occasions during the course of the PMP and gave examples verbally to Mr Cunningham of how his performance was unsatisfactory. Mr Cunningham denied that he was given examples. There was no evidence of contemporaneous file notes taken by either Mr Calder or Mr Cunningham of the discussions, nor any documentation completed at the conclusion of such discussions particularising examples.
8. Accordingly whether, and if so what, specific examples were given to Mr Cunningham during the PMP process could not be definitively established on the available evidence. However I do not consider this materially impacts on the determination of this matter. This is primarily because the focus of my consideration is the incidents advanced in evidence before this Commission in a hearing de novo, not a review of the fairness and efficacy of the original decision maker's determination.
9. Corrective Services bears the onus of proving that facts exist justifying the disciplinary decision. Mr Cunningham must then persuade the Commission to allow his appeal from that decision. However I note that if there is insufficient evidence before the Commission of unsatisfactory performance, Corrective Services faces a challenge in establishing that its original disciplinary action be maintained.
10. Corrective Services clarified the matters relied upon as unsatisfactory performance in this appeal, as opposed to before the decision maker Mr Shearer, as follows: 1. Officer Florentin Muster Incident (28 November 2016); 2. Dealings with Officer Florentin - mediation meeting after Officer Florentin Muster Incident (28 November 2016) and mediation meeting after Gatehouse Incident (10 December 2016); 3. Officer Toro-Martinez Incident (29 November 2016); and 4. Officer Barlow Incident (23 January 2017).
11. Evidence was given by Senior Assistant Superintendent Waters about certain matters that were alleged to have occurred relating to Mr Cunningham's performance in a one week period from 25 - 31 July 2016. Corrective Services submitted that these matters were the reason Corrective Services implemented the PMP that commenced in October 2016, however they were not matters Corrective Services relied upon as a basis for the ultimate disciplinary action taken. Mr Nagle clarified that Mr Cunningham did not challenge the basis of Corrective Services putting Mr Cunningham on a PMP, accepting it as a matter of managerial prerogative. Accordingly Ms Waters' evidence was not relevant to the matters to be determined by the Commission, as she was not a direct witness to the incidents relied upon, as outlined above.
12. I deal with each of the incidents in turn. As a general observation, I did not have the benefit of observing key witnesses to the alleged incidents giving their evidence and having that evidence tested under cross-examination, namely Ms Florentin, Mr Moellmer, Mr Toro-Martinez and Mr Barlow. None of those witnesses were called by Corrective Services in support of its case. Accordingly, I have largely made findings on the basis of Mr Cunningham's evidence.

Officer Florentin Muster Incident (28 November 2016)

1. An incident occurred during the morning muster on 28 November 2016 at around 9.00am. A discrepancy occurred in the count of inmates in the muster as First Class Correctional Officer Gloria Florentin had not turned a page of the muster book (the "Florentin Muster Incident").
2. Mr Cunningham says in his statement that he called the two officers involved, Ms Florentin and Mr Moeller, to the centre of the common room in the Unit to talk to them. As he began to talk to them, Ms Florentin walked away. He followed her out of the Unit and gave her a direction to stop walking which she refused. Mr Cunningham then said words to the effect that he was 'giving her a lawful order to stop'. Ms Florentin continued walking away.
3. Mr Cunningham completed a contemporaneous report of the incident dated 29 November 2016 which is consistent with his statement. He called to Ms Florentin and Mr Moeller to come to him in the middle of the common room in the inmate accommodation Unit. He states that he '…tried to explain to both officer [sic] that [he] wasn't happy with the Muster when Mrs Florentin stormed off in an aggressive way…." Mr Cunningham further says that his "aim in talking to staff in the common room was to inform them that the muster still hadn't been conducted as per the requirements of the Manager of Security directions and it would have been my intention that the muster be conducted again this time correctly".
4. The performance concern raised with Mr Cunningham regarding this incident by Mr Calder was his action in seeking to speak with the two officers where inmates could hear. Mr Calder says that the appropriate course was for Mr Cunningham to have taken them to the compound office to have such a discussion. He explained that it is important for correctional officers to be united in front of inmates. It is also reasonable to expect that an employee who is being reprimanded will receive that reprimand or any feedback on their performance away from inmates. It was the location in which Mr Cunningham attempted to provide the feedback, in the middle of an inmate accommodation area, that was the issue.
5. Mr Cunningham acknowledged in his oral evidence that the inmates were coming out into the common room. However he said he did not have a chance to say anything to Ms Florentin in the common room in front of inmates because she turned around and walked away before he did so. When he gave her the direction to stop so he could talk to her, they were outside the Unit on the compound, with the inmates still inside the Unit. Therefore he did not give Ms Florentin any feedback in front of inmates.
6. However the concern with Mr Cunningham's actions was not that he did talk to Ms Florentin about her conduct in respect of the muster in front of inmates but rather he sought to do so. On the basis of Mr Cunningham's own evidence his intention was to speak to Ms Florentin and Mr Moellmer in the common room in the Unit, where he acknowledges inmates were coming out. He says he wanted to talk to them about the fact the muster had been done incorrectly and that he wasn't happy about it. He was unable to follow through on his intention as Ms Florentin removed herself from the situation before he could do so. That does not abrogate the legitimate concern of Mr Calder about Mr Cunningham's exercise of judgment in attempting to give the reprimand/feedback to Ms Florentin (and Mr Moeller) in the common room.
7. In his statement Mr Cunningham says that he did not believe there were inmates nearby, as if there were he would not have attempted to speak to the officers in that area. This is inconsistent with his oral evidence that he sought to speak with the officers in the common room where he acknowledges inmates were coming out. He also notes that his subsequent direction given to Ms Florentin occurred 'out on the compound and away from the hearing of inmates', acknowledging that the common area within the Unit was within the hearing of inmates.
8. Mr Cunningham's contemporaneous report, a statement by Ms Florentin and a statement of Mr Moellmer in relation to the Florentin Muster Incident were in evidence. However neither Ms Florentin nor Mr Moellmer were called as witnesses. I rely on their statements only to the extent that they both confirm Mr Cunningham's account, that when they were leaving the Unit after the muster, Mr Cunningham asked them to come to the middle of the common room.
9. I find that Mr Cunningham did attempt to provide feedback about poor work performance to a more junior colleague, Ms Florentin, in a location where inmates could potentially overhear, in circumstances where he admitted he was 'unhappy' with her performance. I consider such conduct fell below the standard expected of an Assistant Superintendent in the following ways: 1. A Key Accountability is to supervise officers and oversee the method utilised in maintaining the security of the centre ensuring a secure and stable environment for inmates/offenders, custodial and other staff. I accept Mr Calder's evidence about the importance of correctional officers being united in front of inmates, and that "the most important asset within the prison are …staff and a harmonious workforce leads to a safe operational environment". 2. The Key Accountability of 'manage and develop people' is also relevant, requiring Assistant Superintendents to 'develop team capability and recognise and develop potential in people; be constructive and build on strengths when giving feedback'. Giving feedback to a more junior staff member when one is unhappy about an error they have made, in the presence of another colleague and where inmates are or may be present does not meet this accountability.
10. Mr Cunningham's evidence indicates that he did not, and does not, accept that in the circumstances his action in seeking to talk to Ms Florentin in that location was inappropriate. Mr Cunningham says in his statement that Mr Calder appeared more concerned with Mr Cunningham's conduct regarding his choice of location to provide feedback, than Ms Florentin's errors in the muster and disregarding Mr Cunningham's direction. I consider that Mr Calder was entitled to raise the concern about Mr Cunningham seeking to give feedback about Ms Florentin's performance where inmates could overhear, regardless of Ms Florentin's poor performance. They are separate issues.
11. In cross-examination Mr Cunningham refused to accept that seeking to reprimand or give feedback to a junior officer in a place where it could be overheard by inmates or other officers was inappropriate. He stated that while "it has been brought to my attention, it doesn't necessarily mean that I agree with it, because at the particular time I'm trying to get the job done correctly". When it was put to him that it was open to him to get the muster done, then at another time shortly after have a discussion with Ms Florentin about the feedback that he wanted to give her about her performance, he acknowledged that 'there were many different ways it could've been done I suppose in hindsight yes you could say that". However Mr Cunningham then reiterated that he did not believe he could have dealt with the situation differently, because "doing what we needed to do at that particular time was the most important part of our daily requirements". He believed that moving away from the area to have the discussion would have further delayed the necessary actions.
12. Mr Cunningham did not accept the proposition that he could have dealt with the issue with the muster avoiding further delay, then separately dealt with the issue of feedback to Ms Florentin in a place that wasn't within earshot or eyesight of other staff members and inmates. In my view, Mr Cunningham did not exercise sound judgment in balancing his operational responsibilities (supervise the muster) and another key accountability of his role relating to people management. I also consider that his unwillingness to acknowledge any shortcoming on his part in the Florentin Muster Incident is inconsistent with the capability of his role of 'demonstrating accountability'.

Dealings with Officer Florentin

1. Corrective Services relied upon the alleged lack of engagement by Mr Cunningham in two meetings that occurred with Ms Florentin as incidents of unsatisfactory performance. It was submitted that the officers had to work together within a chain of command environment and in that context Mr Cunningham as a senior officer failed to set an example of behaviour in his dealings with Ms Florentin.

Mediation meeting after Florentin Muster Incident (28 November 2016)

1. Mr Calder gave evidence that he held a mediation meeting with Mr Cunningham and Ms Florentin after the Florentin Muster Incident. He asked both Ms Florentin and Mr Cunningham what they could have done differently. Ms Florentin stated that she needed to take time and be more thorough in conducting the muster. Mr Calder also impressed upon her the importance of following a direction from a senior officer. Mr Cunningham initially stated that he 'could not think of anything he could have done differently or better'. Mr Calder explained to Mr Cunningham why speaking to Ms Florentin behind closed doors was appropriate if he wanted to reprimand her for her conduct and that discussions on performance should not occur in front of inmates. Mr Calder considered that Mr Cunningham's focus was on retribution against Ms Florentin for disobeying a direction and he was struggling to put himself in Ms Florentin's shoes.
2. In his statement Mr Cunningham says he was 'directed' to apologise to Ms Florentin, which he did. Mr Calder's further evidence, by way of a reply statement, was that in the mediation meeting Ms Florentin immediately apologised to Mr Cunningham for failing to follow a direction. Mr Calder then asked Mr Cunningham to consider his role in the events and suggested to Mr Cunningham that he apologise to Ms Florentin. Mr Cunningham initially refused, then did apologise. Mr Calder stated that at the end of the mediation, Ms Florentin held her hand out for Mr Cunningham to shake, which he refused.
3. Under cross-examination Mr Cunningham stated was that while Ms Florentin apologised to him in the mediation meeting, he did not apologise to her. He explained that "just because [he] didn't apologise, didn't meant that he couldn't work with Ms Florentin". He said he believed he was also asked by Mr Calder whether he could work with Ms Florentin, and he said he could.
4. I accept Mr Calder's evidence in respect of this mediation meeting, which was not challenged in cross-examination. It is more favourable to Mr Cunningham to the extent that Mr Calder recalls that after initially refusing to apologise, Mr Cunningham did in fact do so, after Mr Calder suggested he should. I do not find that this suggestion amounted to a 'direction' to apologise. On Mr Cunningham's oral evidence, he did not comply with such a 'direction' in any event.
5. Mr Cunningham's attitude in the meeting appears to stem from his belief that his conduct in the Florentin Muster Incident was without fault. For the reasons set out above, I do not agree. Further, even if one considers one's conduct to be blameless, it is nevertheless reasonable to genuinely engage in collaborative processes to seek to understand others' perspectives and thereby address workplace difficulties.
6. I consider that Mr Cunningham's conduct in the mediation meeting fell below the minimum standard expected of an Assistant Superintendent in respect of the Key Accountabilities of 'work collaboratively' and 'manage and develop people'. It is difficult to see how Mr Cunningham's attitude developed team capability or the Key Relationship with Correctional Officers of 'providing supervision, guidance and advice'. His unwillingness to genuinely explore reconciliation with a more junior officer after a workplace incident is not productive of collaborative workplace relationships. It is also contrary to the Code of Conduct requirement to "strive at all times to relate professionally to colleagues…and to act with courtesy…".

Mediation meeting after Gatehouse Incident (10 December 2016)

1. A further alleged incident involving Ms Florentin and Mr Cunningham occurred on 28 November 2016, later on the day of the Florentin Muster Incident. Ms Florentin made a complaint about Mr Cunningham's behaviour towards her while she was on duty as a gate officer at the gatehouse at around 3pm that day, involving intimidating conduct such as slamming doors when he was exiting the Centre (the "Gatehouse Incident"). Both Ms Florentin and Mr Cunningham submitted reports at the time of the incident containing their version of events. Mr Cunningham denied any inappropriate conduct.
2. Ms Perigo clarified that Corrective Services did not rely on Mr Cunningham's alleged conduct in the Gatehouse Incident, but rather his conduct in a subsequent meeting with Mr Calder and Ms Florentin about it. Mr Calder made a report dated 25 February 2017 to the decision-maker Mr Shearer setting out the reasons for recommending disciplinary action against Mr Cunningham (the "Calder Report"). The Calder Report states that Mr Cunningham denied intimidating Ms Florentin when exiting the Centre and that a meeting took place on 10 December 2016 between Ms Florentin and Mr Cunningham, in which Ms Florentin "expressed a genuine desire to work with AS Cunningham and was respectful and appropriate throughout. AS Cunningham was less willing to reconcile".
3. In his statement Mr Cunningham says he recalled a mediation with Ms Florentin about the Toro-Martinez Incident (discussed below) in which Mr Calder expected him to apologise, however Mr Cunningham refused because he had not done what was alleged against him. While he recalled a meeting on 10 December 2016 with Mr Calder and Ms Florentin, he did not believe the meeting was about reconciling with Ms Florentin and he did not recall Ms Florentin expressing a desire to work with him.
4. Mr Calder's reply evidence denies that he required Mr Cunningham to apologise in respect of the Toro-Martinez Incident, and says the meeting with Mr Cunningham about the Toro-Martinez Incident was a fact-finding meeting not a mediation with Ms Florentin. However Mr Calder did not give any direct evidence about the mediation meeting with Mr Cunningham and Ms Florentin on 10 December 2016 relating to the Gatehouse Incident referred to in the Calder Report. The Calder Report itself provides no particulars of why Mr Calder perceived that Mr Cunningham was 'less willing to reconcile'.
5. Accordingly there is insufficient evidence to find that Mr Cunningham engaged in any inappropriate conduct in the meeting of 10 December 2016 with Ms Florentin about the Gatehouse Incident.

Toro-Martinez Incident - 29 November 2016

1. An alleged incident occurred on 29 November 2016, the day after the Florentin Muster Incident, in which Mr Cunningham was alleged to have called Corrections Officer Toro-Martinez into his office. Mr Toro-Martinez is Ms Florentin's son. Mr Cunningham was alleged to have been typing in a document on a computer screen and asked Mr Toro-Martinez how to spell the word "inappropriate", while showing Mr Toro-Martinez the document with his mother's name close to the words "inappropriate behaviour".
2. Mr Toro-Martinez was not called by Corrective Services as a witness in respect of the alleged incident. Mr Cunningham denied that he knew Ms Florentin had a son who was a correctional officer or that he knew his name. He further denied that the incident involving Mr Toro-Martinez ever occurred. To the extent that these matters are relevant to my assessment of this aspect of Mr Cunningham's performance, I accept the evidence of Mr Cunningham that he did not know Mr Toro-Martinez was Ms Florentin's son. I also note that Mr Calder acknowledged that at the time he put the incident to Mr Cunningham, he accepted that Mr Cunningham did not know Mr Toro-Martinez was Ms Florentin's son.
3. Corrective Services clarified that it did not rely upon the alleged incident involving Mr Toro-Martinez itself as an example of Mr Cunningham's unsatisfactory performance. Rather the concern was the explanations that Mr Cunningham gave Mr Calder about it, that Mr Cunningham allegedly gave three versions to Mr Calder when Mr Calder raised the incident with him. In his evidence Mr Calder expressed the concern he had at the time as follows: … The question around the account of the writing a report as it related to Gloria Florentine and the possible involvement of her son with three different recollections back to back what may have happened.
4. The Calder Report stated that Mr Cunningham's account of events varied considerably and opined that Mr Cunningham was 'a poor historian, generally confused or deliberately misrepresenting the facts'. Ms Perigo did not submit in these proceedings that Mr Cunningham was being dishonest in his explanations about the alleged Toro-Martinez incident or that he had breached the Code of Conduct. Rather the concern was that a high ranking officer such as Mr Cunningham would be expected to be able to answer a matter put to him in a straightforward way without a number of versions.
5. Mr Calder's evidence was that Mr Cunningham gave him three explanations in close succession. The first was that he may have asked for help, the second that nobody helped and the third that someone may have observed the computer screen through the glass partition.
6. Mr Calder made handwritten notations on an email sent to him by Mr Toro-Martinez dated 30 November 2017 during a discussion Mr Calder had with Mr Cunningham about the Toro-Martinez incident as follows: Remember typing, remember asking, help from around…no-one ever said you can Google it, did not point, did not know Leo, at no time was "Google" raised, inappropriate not in report, not appropriate to put up a report confidential, Frank info concerns. These notes do not directly support Mr Calder's evidence. Importantly, the third explanation relating to someone observing through the glass is not noted. It is also the case that the report prepared by Mr Cunningham about the muster incident involving Ms Florentin does not in fact contain the word 'inappropriate'.
7. Mr Cunningham acknowledged that he gave two explanations. He says he told Mr Calder that sometimes if he had trouble spelling a word he would ask the general question of anyone in the office at the time, along the lines of "does anyone know how to spell…" He says that he also told Mr Calder that he didn't recall having done this on 29 November 2016 which is when he wrote his report in relation to Ms Florentin. Mr Cunningham explained that when he was asked for an explanation by Mr Calder, he was caught off guard as it had 'come out of nowhere'.
8. Mr Cunningham denied that he gave the third explanation to Mr Calder, that the computer screen may have been observed from the duty office through a glass window. He stated that a Senior Assistant Superintendent informed him after he wrote his report that officers could see what was on his computer screen. He subsequently approached the administration manager to request that the office be rearranged because he was being accused of showing reports to officers. The administration manager told him the computer could not be moved however reflective material could be put on the window, which was done.
9. There is inconsistency between what Mr Calder wrote in his report to Mr Shearer, his handwritten notations made at the time of the conversation and his evidence in these proceedings. Mr Calder presented as a genuine and honest witness and I do not consider his evidence was in any way untruthful. On balance, I accept Mr Cunningham's account. He acknowledged that two explanations were provided. I consider this is understandable in circumstances where Mr Cunningham says - and Mr Calder accepted - that he did not know Mr Toro-Martinez was Ms Florentin's son. In that context it would be difficult to immediately comprehend why the matter was being raised as an example of a performance shortcoming and promptly provide a succinct explanation.
10. Even if I accepted Mr Calder's version that Mr Cunningham gave the three explanations contended for, I do not consider this constitutes unsatisfactory performance. Mr Calder acknowledged that he did not finalise his fact finding inquiry into the alleged incident itself and there is no evidence to support a contention that Mr Cunningham was deliberately misrepresenting the facts to Mr Calder. Even if Mr Cunningham was a 'poor historian' or 'generally confused' in the circumstances of this incident, that does not reach the threshold of constituting a material failing in his role as Assistant Superintendent.
11. In terms of the original decision, Mr Calder's explanation of the concern he held about the Toro-Martinez incident appeared to encompass both the incident itself and the multiple explanations about it given by Mr Cunningham. Certainly the decision-maker, Mr Shearer, admitted under cross-examination that he took into account Mr Cunningham's action in calling in Mr Toro-Martinez and asking if he would check the spelling of a performance report on Mr Toro-Martinez's mother, knowing that the son was going to read the report. This was not a finding that was made by Mr Calder. This is an example of a deficiency in the original process adopted by Corrective Services, given Mr Calder's acknowledgement that he did not conduct a fact finding in respect of the incident, which was denied by Mr Cunningham.

Officer Barlow Incident - 23 January 2017

1. On 23 January 2017 an incident occurred between Mr Cunningham and Senior Correctional Officer Barlow relating to the conduct of a muster (the "Barlow Incident"). On the basis of Mr Cunningham's alleged conduct in the Barlow Incident, Mr Calder decided to terminate Mr Cunningham's PMP. The Barlow Incident was referred to the Professional Standards Branch which conducted an investigation and provided a report to Mr Calder on 6 February 2017 (the "PSB Report").
2. Mr Cunningham's evidence is that Mr Barlow failed to commence the muster in Mr Cunningham's absence, an argument ensued between them and Mr Barlow assaulted him. Mr Barlow then refused to accept a direction from Mr Cunningham to report the incident to the Manager of Security. Mr Cunningham completed a report about the Barlow Incident the next day. He reported the details of the argument and that after Mr Cunningham had walked away from Mr Barlow, Mr Barlow grabbed his arm, took a step towards him and pushed into his chest. Mr Cunningham said 'you've assaulted me'. Mr Cunningham stated that 'the next thing [he] saw' was a First Class Correctional Officer, Mr Stacey, standing between himself and Mr Barlow, holding Mr Cunningham's hands, with someone standing around Mr Barlow.
3. Mr Barlow's account contained in the PSB Report contradicts Mr Cunningham's account in a number of respects. Mr Barlow says that in the argument Mr Cunningham abused him in front of staff including swearing at him. He says it was Mr Barlow who walked away, Mr Cunningham followed him, stood closely to him and was yelling at him such that his spit was hitting Mr Barlow's face. Mr Cunningham refused to leave Mr Barlow's personal space despite being asked three times to do so. Mr Barlow 'increased the size of his stomach and pushed slightly' against Mr Cunningham in order to move him away. Mr Cunningham then lunged at him. That was when Mr Stacey interjected, pushing Mr Cunningham back.
4. Mr Stacey's account to the PSB does not describe any physical contact and states that Mr Cunningham abused Mr Barlow including calling him a 'lazy cunt' and the argument was heated with swearing and name calling until Mr Stacey stepped in between them. A Casual Corrections Officer present, Mr Saville, stated to the PSB that Mr Cunningham called Mr Barlow a 'lazy cunt' and that the argument escalated until Mr Stacey intervened by standing in between the two men. Mr Cunningham denied that he swore at Mr Barlow and notes that in Mr Barlow's own statement to the PSB, he does not state that Mr Cunningham called him a 'lazy cunt'.
5. The PSB Report refers to a CCTV recording of the Barlow Incident, which while of 'low quality' is said to 'cast serious doubt on both their accounts'. Mr Cunningham maintained in his oral evidence that he walked away from Mr Barlow to diffuse the situation and that the CCTV footage shows him doing so.
6. In his report to the decision maker Mr Shearer, Mr Calder relied upon the Barlow Incident as an example of Mr Cunningham's performance deficiency. He concluded that on the 'balance of probability' Mr Cunningham called Mr Barlow a 'cunt' in front of 4 junior staff. As noted above, Mr Cunningham denies this allegation. I am unable to make that finding on the evidence before the Commission, or other findings as to precisely what conduct was engaged in by Mr Cunningham in respect of the Barlow Incident for the following reasons: 1. apart from the written report of Mr Cunningham on 24 January 2017 and the statement of Mr Barlow taken by PSB, no other source documents upon which the PSB Report was based were before the Commission; 2. even if the full documentation such as the signed interviews with Mr Stacey and Mr Saville were provided, they would be of limited probative value. As well as Mr Barlow these witnesses were not called, so that their accounts could be tested and the disputed facts resolved; and 3. the CCTV footage upon which the PSB relied was not tendered, only a narrative description of what was said to be on the recording.
7. I accept the submission put on behalf of Mr Cunningham that in these circumstances, where Mr Cunningham calls into question the factual basis of this aspect of the disciplinary decision, the evidentiary burden of proving those facts lies with Corrective Services: Goodwin at [112]. This burden has not been satisfied in respect of any precise aspects of Mr Cunningham's conduct in the altercation, including that he called Mr Barlow a 'lazy cunt'.
8. However there is a limited admission by Mr Cunningham that is relevant to an assessment of his performance. In the Calder Report, Mr Calder stated that in a meeting with Mr Cunningham about the Barlow Incident on 23 January 2017, Mr Cunningham "described himself as 'falling off the perch'". In cross-examination Mr Cunningham admitted he did say that because he knew that being involved in such an altercation was not appropriate for someone in Mr Cunningham's position. He further acknowledged that Mr Barlow was a more junior officer, that it was not appropriate to be involved in an altercation with a junior officer and that any sort of altercation in the workplace is highly disruptive in a custodial environment. Accordingly, while I make no findings as to the specific actions engaged in by Mr Cunningham in the Barlow Incident due to the lack of probative evidence, I find that Mr Cunningham was involved in an altercation with Mr Barlow and that this fell below the expected standard of conduct.
9. I accept Mr Nagle's submission that Mr Cunningham's statement that he had 'fallen off the perch' demonstrates insight by Mr Cunningham that his behaviour in the Barlow Incident was below the high standard expected of him. This is relevant to the aspect of the PIP relating to 'demonstrating accountability'. However other Key Accountabilities were not met, including manage self; communicate effectively (ask appropriate, respectful questions, monitor own and others' non-verbal cues and adapt where necessary); and work collaboratively.
10. Further, while the dispute was not between staff and inmates/offenders, I consider the Key Accountability of managing disputes to minimise ongoing conflict is relevant in this context. Involvement in an altercation with another officer fails to meet the important objective of minimising conflict within the custodial environment. It is also inconsistent with the Code of Conduct obligation to 'strive at all times to relate professionally to colleagues…and to act with courtesy…'.

Consideration - unsatisfactory performance

1. Mr Cunningham's conduct in respect of the Florentin Muster Incident, the Mediation Meeting after the Florentin Muster Incident and the Barlow Incident comprise the proven instances of unsatisfactory performance, to the extent set out in these reasons above. Ms Perigo submitted that the incidents relied upon by Corrective Services ought not be considered in isolation but rather cumulatively, and I have so considered them as follows: 1. In respect of the Florentin Muster Incident I have found that Mr Cunningham's conduct in seeking to give feedback to Ms Florentin in the location he did was unsatisfactory. The essence of the concern, as expressed by Mr Calder in his report to Mr Shearer, is that Mr Cunningham's action was 'ill-timed'. Mr Cunningham's attitude during the subsequent Mediation Meeting conducted by Mr Calder with him and Ms Florentin also fell short of the standard reasonably expected of him as a senior officer. However in my view, while it is legitimate for Corrective Services to raise these matters as performance concerns, they are not at the serious end of the range of unsatisfactory performance, considered separately or together. 2. Mr Nagle acknowledged, properly in my view, that the Barlow Incident is the most serious of the matters before the Commission relating to Mr Cunningham's conduct (assuming it could be proven). For the reasons set out above I consider that Mr Cunningham's conduct in engaging in an altercation with a more junior officer was unsatisfactory and that this is a more serious performance concern. In contrast to the Florentin Incident and subsequent Mediation Meeting, Mr Cunningham did acknowledge that he had failed to meet the required standard of performance in respect of the Barlow Incident.
2. Ms Perigo further submitted that the incidents relied upon by Corrective Services occurred during a period where a performance improvement plan was in place, coaching and counselling was provided and there was a genuine attempt by Mr Calder to assist Mr Cunningham. In this context the disciplinary action of demotion was justified because Mr Cunningham had failed to demonstrate leadership requirements of the role of Assistant Superintendent.
3. The existence of the PMP conducted by Mr Calder is not determinative of whether the incidents advanced in this Commission occurred as factual matters. However the PMP is relevant to the assessment of Mr Cunningham's overall relationship with Corrective Services and thus the appropriate disciplinary action now to be imposed. I have considered the three proven incidents in this context, in particular the Barlow Incident which occurred towards the end of the three month PMP period which sought to specifically address such behaviour. The PMP Letter stated that the performance deficiencies to be addressed relevantly included '…aggressive behaviour', 'poor interpersonal communication skills', 'disruptive behaviour within the custodial environment' and 'lack of foresight in managing the custodial environment'. Mr Cunningham's acknowledged conduct in 'falling off the perch' by being involved in a workplace altercation with Mr Barlow falls within these categories.

Procedural unfairness

1. An issue in this matter is the appropriate weight (if any) to be given to Corrective Services' alleged failure to provide procedural fairness to Mr Cunningham in its discipline process. In this regard, Mr Nagle relied upon the decision in Goodwin: [111] However, it does not follow that the Commission must ignore completely the process by which the decision under appeal was made. Subsection 100C(3) makes it clear that a failure to comply with the rules of procedural fairness, whilst not necessarily determinative, may, nevertheless, be taken into account in the determination of an appeal. The procedural unfairness that affected the process which led to the decision to demote Mr Goodwin has already been touched upon and is further dealt with later in these reasons for decision.
2. It was submitted that Corrective Services failed to comply with Rules 35 and 36 of the Government Sector Employment (General) Rules 2014, which set out the requirements of a performance management system and how unsatisfactory performance is to be dealt with. Section 68(2) provides that an employer 'may not take any action' under that section unless the steps set out in Rule 36 are taken.
3. Mr Nagle clarified that Mr Cunningham was not seeking to have the matter remitted back to Corrective Services for determination with directions to recommence the disciplinary process in accordance with procedural fairness pursuant to s 100C(3)(b) of the IR Act. Initially it appeared Mr Nagle was submitting that the procedural deficiencies were so gross they were suggestive of Corrective Services having a 'pre-determined outcome' in mind. However at the conclusion of evidence Mr Nagle clarified, properly in my view, that this submission was not pressed.
4. Mr Nagle's primary submission in respect of procedural unfairness was that the unparticularised, general nature of the allegations in Corrective Services' process was 'both flawed and manifestly unfair'. However it was also acknowledged that failures in procedural fairness will often be ameliorated by the Commission re-determining the matter. Mr Nagle noted in closing submissions that Mr Cunningham had had his opportunity to put his case before this Commission and had now been afforded procedural fairness.
5. I consider there were deficiencies in the process followed by officers of Corrective Services in respect of Mr Cunningham's unsatisfactory performance. I have already noted the absence of documentation evidencing the particulars given to Mr Cunningham during the course of the PMP of the alleged areas of unsatisfactory performance. I also refer to the issue in respect of the Toro-Martinez Incident, where the ultimate disciplinary decision made by Mr Shearer was apparently founded on matters that were not clearly determined by a finalised fact finding by Mr Calder.
6. Mr Calder acknowledged some aspects of the process could have been done better. Mr Shearer, while not as forthcoming, offered a limited acknowledgement that while all processes could be done better, the outcome was fair. On my assessment of their evidence, the deficiencies in the process arose from error and/or inadvertence, not ill-intent. Mr Calder impressed me as an officer who held genuine concerns about aspects of Mr Cunningham's performance and sought to address them within his training and experience, with some advice from Corrective Services' human resources function.
7. Section 100C(3)(a) makes it clear that if it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the original decision, the Commission is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits. Further, despite the dicta noted above by Mr Nagle, in Goodwin Murphy C ultimately found that the outcome was not determined on the basis of the procedural irregularities identified by the appellant. He attached little weight to those matters or the disciplinary decision of the original decision-maker which was the subject of the appeal: Goodwin at [70]. I consider this to be the proper approach in this matter.
8. However I make the following general observations about performance management processes, in the context of what occurred in respect of Mr Cunningham: 1. In situations where there is no allegation of misconduct or serious misconduct, it is still necessary to have a sound factual foundation upon which to base a performance management process that may result in adverse disciplinary action. There was an absence of proper investigation of certain incidents that were disputed by Mr Cunningham. This affected Corrective Services' ability to prove its concerns in relation to those matters, both during its performance management process and at the hearing of this appeal. 2. The responsible manager conducting the process should be in a position to provide sufficient details of all of matters that are causing concern and clearly communicate to the employee the alleged shortcomings in their performance by way of concrete examples. For example, if 'poor communication with subordinate staff' is the concern, specific incidents in which it is said the employee demonstrated such poor communication should be provided. This will assist the employee understand in what respects their communication is considered poor. 3. If the employee disputes material details of an incident, those matters must be clarified to ensure the factual basis for the process is sound. This should be to the point of making findings as to what did and did not occur. 4. Each alleged deficiency should be referenced to the relevant parts of the employee's Role Description and/or the Code of Conduct. An explanation should be given to the employee of how the performance fails to meet each such part. 5. The matters of concern and the incidents/examples upon which the concerns are based should be communicated in writing to the employee. This will assist the employee to better understand, reflect upon and potentially accept the deficiencies in their performance, as well as enable the employer to evidence the steps taken. This is particularly important where the employee says, or by their behaviour suggests, they do not accept their performance is deficient in the areas identified by the employer.
9. The existence of a clear paper trail evidencing the steps outlined above, including confirmatory notes of the discussions with Mr Cunningham sent to him after meetings containing the examples of the areas of performance concerns, may have increased the prospect of Mr Cunningham understanding and genuinely accepting the need for him to change discrete areas of his performance. Unfortunately no such documentation existed, which contributed to the evidentiary challenges facing Corrective Services in this appeal.

Whether appeal should be allowed

1. The obligation to make out the facts falls upon the person alleging it. However that does not remove the onus that rests upon the party seeking to persuade the Commission to allow an appeal, that it should be so allowed: Grech at [11]. This is Mr Cunningham.
2. There are additional matters that bear upon the Commission's decision to allow or disallow the appeal, or make such other decision with respect to the appeal as the Commission thinks fit. Consistent with the principles in Schoeman, it is permissible, and indeed necessary in order to discharge the protective function of the Commission, to consider Mr Cunningham's overall relationship with Corrective Services including relevant evidence as to his employment record and any supervening facts.

Employment record

1. I have only considered those matters relating to Mr Cunningham's employment history that were admitted into evidence before me.
2. Mr Cunningham has been employed by Corrective Services for approximately 26 years with the last 16 years as an Assistant Superintendent. In the last 9 years he acted in the role of Senior Assistant Superintendent as follows: 2008 - 120 occasions in a six month period; 2009 - nine occasions; 2010 - six occasions; 2011 - three occasions; 2012 - 12 occasions; 2013 - six occasions; 2014 - 25 occasions; 2015 - 24 occasions; and 2016 - 42 occasions. I consider this to be a significant period of time acting in the more senior role.
3. Mr Cunningham was placed on a performance management plan in 2009, which was finalised in January 2010. No further details of the reasons for or nature of the plan were in evidence and accordingly I have not taken it into account.
4. On 15 July 2011, Mr Cunningham received a Commissioner's commendation for his services as a sports coordinator. This commendation does not relate to work performance in a senior role, which is in issue in these proceedings. Accordingly it is a neutral factor in my decision.
5. On 2 December 2011, Mr Cunningham received a letter from the-then General Manager of OMMPCC, congratulating Mr Cunningham on his 'positive team management approach and personal communication skills' and noting that his 'contribution and high-level operational knowledge have contributed significantly to the smooth, effective, efficient operation of the centre.' The letter further states that Mr Cunningham's 'flexible nature and good humour are positive assets to this department'. This positive feedback relates to Mr Cunningham's performance in a managerial role and accordingly I give it weight, noting it relates to his performance five years ago.
6. On 25 May 2015, the Assistant Commissioner, Custodial Corrections, issued Mr Cunningham with a reprimand. Mr Cunningham was found to have made a post on his Facebook page that was threatening, or included information acquired in the workplace or on duty relating to colleagues or inmates. An incident had occurred in the workplace regarding the care of an inmate. Mr Cunningham's Facebook post stated as follows: In the meantime Julie came in and abuses me because it appears she was handling it, SOOOOO of course I am sick and tired of people going off at me so I just lost it. I spoke in a loud voice that everyone in the work area could hear me quite easily. The part that hurts me the most is this is a person I counted as a friend. NO ANY MORE. You bloody B…..…ts who want to use me as a punching bag verbally, well I've had enough, I give put U all on notice. U start getting into me and I will just be on wind up automatic. Don't go there or if you're stupid enough to go there don't stand still RUN to the nearest exit because if you think I've lost it before U haven't seen nothing yet. Everyone else you have a nice day. [Underlined emphasis added]
7. An investigation occurred into this incident and Mr Cunningham was formally interviewed on 22 January 2015 by the Investigations Branch of Corrective Services. The Record of Interview formed part of the evidence in these proceedings. Mr Cunningham stated at interview that the person referred to in his Facebook post who allegedly abused him was Senior Assistant Superintendent Sandra Corby. Mr Cunningham explained that he posted the article because he was frustrated by how he was being treated by fellow officers. He says he was abused by a senior officer in front of inmates and junior staff.
8. Mr Cunningham further stated at interview that he was cranky about the way Sandy Corby, who he had considered to be a friend, had treated him that day. He was also cranky about the way another person called Jenny had treated him in relation to an out-of-work incident. He was 'getting grief from his senior officers', he stood up for himself and then he had Jenny try to abuse him in the out-of-work incident. He was 'venting' then decided to delete the whole thing 'because maybe he was just too hard on people'. At the time he didn't believe he was doing anything wrong, but felt about an hour or so later that he'd been maybe too harsh on his friend and deleted it.
9. I consider this conduct by Mr Cunningham to be of concern. I make no finding in respect of Ms Corby's conduct in the incident that prompted Mr Cunningham's Facebook post that day. I do not consider it is necessary to do so. Even if Ms Corby's conduct was exactly as Mr Cunningham asserts (noting that the nature of her allegedly abusive conduct was not particularised by Mr Cunningham), it does not justify the manner in which he reacted to it. Mr Cunningham admitted in his Facebook post that he 'lost it' in the workplace arising from the incident with Ms Corby. He further stated that if he perceived a colleague as 'getting into him', he would 'be on wind up automatic'.
10. Mr Cunningham acknowledged in his evidence in reply that he had exercised 'bad judgement' in respect of this incident. I agree. A Key Relationship of the role of Assistant Superintendent is Senior Assistant Superintendent. As I have noted earlier in these reasons, a Key Accountability of an Assistant Superintendent is to manage staff grievances and disputes between staff and inmates/offenders to minimise ongoing conflict. I take this to extend to managing ongoing workplace conflict generally. Mr Cunningham's Facebook comments disclose that he did not demonstrate this accountability in his workplace interaction with Ms Corby which prompted his Facebook post. His comments suggest that his conduct in that interaction, and his proposed future actions, would contribute to staff grievances and create workplace conflict, not minimise it. Such conduct is of concern in the custodial environment where employees are expressly required to ensure a secure and stable environment for inter alia custodial and other staff.
11. Mr Cunningham's conduct in making the Facebook post is of further concern. It is reasonable to expect a senior manager of Mr Cunningham's experience to be able to better manage emotions of frustration and even anger when difficult or challenging events occur in the workplace. Mr Cunningham's conduct and attitude in respect of making the Facebook post failed to meet the following capabilities of the role of Assistant Superintendent to the level required: 1. Personal attributes - 'display resilience (adept)…', 'manage self (intermediate)'; and 2. Relationships - 'communicate effectively (intermediate); 'work collaboratively' (intermediate).
12. In his evidence in these proceedings Mr Cunningham says it was not him but his wife who alerted him to 'the issue' with the Facebook post. He further says that he did not use real names in the post, that others are to blame for distributing the information and no-one else was reprimanded for that distribution. I do not consider that these factors mitigate Mr Cunningham's conduct. His raising of these matters suggests he does not fully accept appropriate responsibility for managing his reactions in either the workplace incident with Ms Corby or in making the subsequent Facebook post. This does not meet the required capability of his role to 'demonstrate accountability (intermediate)'.
13. I consider this aspect of Mr Cunningham's past employment history to be relevant to the overall relationship of Mr Cunningham with Corrective Services. I have taken it into account in the determination of this appeal.

Events since demotion

1. After Mr Cunningham's demotion, he was transferred to the Dawn De Loas Centre and placed on a performance improvement plan ("PIP") for a 3 month period from 8 May 2017 under the supervision of the Governor of the facility, initially Mr Sean Fitzgerald and subsequently Ms Linda Ferret (the "Dawn de Loas PIP"). The purpose of the Dawn de Loas PIP was to ensure that at the completion of that period, Mr Cunningham was able to work the full range of Correctional Officer duties within policy, procedure and in line with the values of the organisation including the Code of Conduct and Ethics.
2. The Dawn de Loas PIP relevantly described the performance issues to be addressed by Mr Cunningham as follows: 1. Communication - professional interactions and communication with all staff and inmates; listen and follow directions from supervising officers and refrain from engaging in disagreements in the presence of inmates; conduct professional interactions with staff and inmates in line with CSNSW policies and procedures and the Code of Conduct and Ethics. Behave in a manner that is consistent with our values at all times; 2. Professional behaviour in the workplace - understand and follow legislation, policies, guidelines and code of conduct. You are to support a culture of integrity and professionalism. Behaviour in the workplace is required to be courteous, respectful, professional and responsive when dealing with colleagues, managers and others within the work environment at all times. Take responsibility and be accountable for your own actions; 3. Work as directed - work as directed by supervising staff, do not leave your post without approval from a senior officer, do not leave the centre without approval of the MOS or Governor; and 4. Adhere to section 6.3 of Conduct and Ethics - Officer Cunningham is to access the CSNW Conduct and Ethics and acknowledge adherence to the Code. Not engage in any behaviour that leads to allegations/complaints of bullying, harassment, insubordination or unprofessional conduct; 5. Performance of duties as a Correctional Officer - complete the performance of your duties to the highest standard and abilities at all times, and in accordance with your role description. [Underlined emphasis added]
3. Progress review of items 2, 3 and 4 above was by way of monitoring of interactions on a daily basis. Fortnightly meetings were to be held with Mr Cunningham, senior management and an available support person. Monthly informal review meetings would be set with written feedback. If any breaches of the PIP occurred, action would be taken immediately, including unscheduled feedback with Mr Cunningham or immediate referral for consideration of ongoing employment suitability.
4. There was no evidence before the Commission that any breaches of the PIP occurred during the 3 month period. Mr Shearer gave evidence that during the period of the Dawn de Loas PIP Mr Cunningham had acted as a Senior Corrections Officer on two occasions. The first shift involved facilitating a videoconference for an inmate and did not require Mr Cunningham to supervise other staff. The second shift was a more challenging role as the senior on the unit, supervising two or three other officers managing a group of inmates.
5. Mr Shearer gave evidence that Ms Ferret had signed off that Mr Cunningham's communication was to an acceptable standard and that he had met the expectations of the PIP as a Correctional Officer. On that basis, Mr Shearer had made a decision on 1 August 2017 that Mr Cunningham had completed the expectations of the Dawn de Loas PIP as a Correctional Officer and subsequently removed Mr Cunningham from that PIP.
6. Mr Shearer stated that Mr Cunningham's performance was assessed as satisfactory only in respect of the Corrections Officer role, not an Assistant Superintendent role. Ms Perigo submitted that the Corrections Officer role was not a role that involved the same level, or any level, of leadership skills or requirements to manage other employees as the Assistant Superintendent role. It was submitted that Mr Cunningham's completion of the Dawn de Loas PIP did not demonstrate satisfactory performance due to the differences between the Corrections Officer and Assistant Superintendent roles. I note that the Role Description for a Corrections Officer was not in evidence before me.
7. It is unclear what is meant by 'leadership' in this context. It is not separately delineated or described in the Key Accountabilities of an Assistant Superintendent. Indeed, the word 'leadership' or 'leader' does not appear in the Role Description.
8. Ms Perigo acknowledged that the characteristic of being able to communicate in a respectful manner, to not become angry or frustrated by things that inevitably happen in the workplace, was not restricted to management roles. She further acknowledged that the requirement to follow directions within the chain of command environment of Corrective Services in a Corrections Officer role was equal to an Assistant Superintendent role. I make the same observation about the requirement to conduct professional interactions with staff and inmates.
9. I consider that key capabilities such as display resilience, manage self, communicate effectively, work collaboratively and demonstrate accountability are not unique to managerial roles and therefore can be demonstrated in the performance of the role of Corrections Officer.
10. People management capabilities are more specific to the Assistant Superintendent role, namely, manage and develop people and inspire direction and purpose. It can be said that these are the qualities that Mr Cunningham was unable to demonstrate during the Dawn de Loas PIP, except on one occasion of acting in the Senior Corrections Officer role.
11. However in my view, the three substantiated incidents of Mr Cunningham's unsatisfactory performance (the Florentin Muster Incident, the Mediation after the Florentin Muster Incident and the Barlow Incident) relate predominantly to the other key capabilities relating to personal attributes and relationships. I therefore consider that the successful completion of the Dawn de Loas PIP is a matter to be taken into account in assessing Mr Cunningham's suitability to perform the role of Assistant Superintendent. It is a supervening fact that is relevant to Mr Cunningham's overall relationship with Corrective Services and I have taken it into consideration in the determination of this appeal.

Mr Cunningham's attitude

1. There is some evidence that Mr Cunningham did not, and does not, accept that his performance as an Assistant Superintendent was deficient. In his letter dated 10 March 2016 in response to the 'show cause' letter from Mr Shearer, Mr Cunningham stated as follows: I have sought advice from my union, the public service Association of NSW. Their advice has confirmed my view that the entire process, starting from the PIP and continuing up to the present has serious deficiencies. … Some of the issues listed probably arise from a clash of management styles between myself and some other officers. I take my responsibility to ensure that rules are followed seriously and this will occasionally result in robust discussions with subordinate and inmates. For this I make no apologies. [Underlined emphasis added] …
2. While Mr Cunningham has a responsibility in his role as Assistant Superintendent to 'ensure that rules are followed', he also has a responsibility to demonstrate the other capabilities in the Role Description. These include (relevantly) manage self, communicate effectively, work collaboratively and demonstrate accountability.
3. I have had regard to relevant conduct of Mr Cunningham referred to in these reasons, namely, the Facebook post and the Florentin Muster Incident, where I have found he did not demonstrate sufficient understanding and acknowledgement that he had not satisfied certain requirements of his role.

Consideration

1. While I have found that Mr Cunningham's performance during the period of the PMP did not meet all of the requirements of his role, I consider that the disciplinary action of permanent demotion from Assistant Superintendent to Corrections Officer is excessive in the circumstances. In reaching this decision I have taken into account the following: 1. the nature and extent of the unsatisfactory performance that was substantiated before me, considered cumulatively and in light of the existence of the PMP; 2. Mr Cunningham's prior employment history that was in evidence; and 3. his performance in respect of the recently successfully completed Dawn de Loas PIP.
2. I decline to make consequent orders for back pay for the full period from the date of demotion in the particular circumstances of this matter, but rather from 1 August 2017, being the date of successful completion of the Dawn de Loas PIP. Section 100D(I)(b) of the IR Act provides that if the Commission decides to allow an appeal, the Commission 'may' order the employer to pay to the employee an amount that does not exceed the remuneration the employee would, but for the employer's decision, have received from the employer. The Commission clearly therefore has discretion in this regard.
3. My decision to make this order results in a loss of remuneration for a 4 month period from the demotion on 29 March 2017 until Mr Cunningham successfully completed the Dawn de Loas Centre PIP on 1 August 2017. This is not a punitive measure but rather linked to the protective function of this jurisdiction. It communicates to Mr Cunningham the validity of the concern of Corrective Services that as a senior officer, Mr Cunningham must demonstrate satisfactory performance of all of the capabilities contained in his Role Description.
4. In reaching this decision I have taken into account all of the matters set out above, including Mr Cunningham's attitude towards his performance in the role of Assistant Superintendent. I am concerned that if an order for back pay is made, Mr Cunningham will not fully appreciate the importance of being accountable for and addressing the areas of unsatisfactory performance that I have found existed on the evidence in these proceedings. I accept that procedural deficiencies in the process adopted by Corrective Services may have played a role in Mr Cunningham's failure of understanding. Nevertheless I consider this action appropriate in the proper exercise of this protective jurisdiction.
5. A fixed period of demotion and reduction in remuneration, in combination with Corrective Services' requirement that Mr Cunningham undertake the Dawn de Loas PIP, collectively conveys the message that Mr Cunningham must meet all of the minimum standards of the role of Assistant Superintendent on a sustained basis. In exercising this protective jurisdiction in this manner, I consider that Mr Cunningham now returning to his role as Assistant Superintendent is not contrary to the public interest.

Powers under s 100C(2)

1. In closing submissions, Mr Nagle outlined that the remedy Mr Cunningham sought was that he be returned to his role as Assistant Superintendent, however not at OMMPCC. The Commission queried whether its powers under s 100C(2) to 'make such other decision with respect to the appeal as it thinks fit' extend to making a decision changing Mr Cunningham's work location. The parties were requested to file written submissions on this issue.
2. Corrective Services submitted that the Commission did not have power to direct that it employ Mr Cunningham in a different location. While the power under s 100C(2) of the IR Act was admittedly wide, it did not extend to enabling the Commission to make decisions other than the decisions specified in s 97 of the IR Act, being the decisions of public sector employers that can be appealed to the Commission.
3. Mr Cunningham submitted that s 100C(2) of the IR Act was not so limited, pointing to s 68(2)(d) of the GSE Act which enables a public sector employer to deal with unsatisfactory performance by assigning the employee to a different role. The decision of Alameddine v Railcorp [2012] NSWTAB 4 was also referred to in support of this position. In that case the Transport Appeals Board ordered the employee not be reinstated to his previous work location, but rather to another location where he could work in a more closely supervised environment.
4. In my view, in making 'such other decision…as it sees fit' under s 100C(2) of the IR Act, the Commission is not restricted in the exercise of its discretion by s 97 of the IR Act, or by extension of reasoning s 68 of the GSE Act. The express words of s 100C(2) are broad and the Commission's discretion fettered only by the requirement that the Commission make such decision 'as it thinks fit' in the context of a hearing de novo. I also consider that interpreting s 100C(2) restrictively would prevent the Commission properly carrying out its protective function in public sector disciplinary appeals.
5. There was no evidence adduced that if Mr Cunningham returned to OMMPCC there would be risks to other staff, inmates or the general safe and effective functioning of that centre. The evidence does not support a finding that it would be contrary to the public interest for him to return to OMMPCC. Further, I did not have before me evidence as to the availability of positions at other centres at the level of Assistant Superintendent. Indeed, there was evidence from Mr Shearer that Corrective Services is currently undergoing a restructure affecting senior management positions generally, being the Senior Corrections Officer, Assistant Superintendent and Senior Assistant Superintendent roles.
6. Accordingly I do not consider it appropriate in the circumstances to make any order regarding a change in the work location of Mr Cunningham upon his return to the role of Assistant Superintendent.

Orders

1. I make the following orders: 1. The appeal of Frank Cunningham in this matter is allowed. 2. The respondent is to restore Mr Cunningham to the position of Assistant Superintendent which he held immediately before the implementation of the decision which is the subject of this appeal, on and from 10 October 2017. 3. The respondent is to restore Mr Cunningham's rate of pay to the level applicable to an Assistant Superintendent on and from 10 October 2017. 4. The respondent is to pay Mr Cunningham the difference between the rate of pay he has received since 1 August 2017, being the date of successful completion of the Dawn de Loas PIP, and the rate of pay applicable to an Assistant Superintendent from 1 August 2017, until orders (2) and (3) are put into effect. JANE SEYMOUR Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 September 2017