NSWNSWIRComm

Antanakopoulos v State Bank of New South Wales

[2000] NSWIRComm 128

Industrial Relations Commission (NSW)|2000-03-21|Before: Sams DP, Wright P, Peterson J, Ross VP, Ms P, Ms J, Centre J

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Court

Industrial Relations Commission (NSW)

Decision date

2000-03-21

Before

Sams DP, Wright P, Peterson J, Ross VP, Ms P

Catchwords

05/25/2000 DATE OF JUDGMENT: 07/27/2000

Source

Original judgment source is linked above.

Catchwords

05/25/2000 DATE OF JUDGMENT: 07/27/2000

Judgment (114 paragraphs)

[1]

CITATION : Stuart Hill and the Department of Juvenile Justice [2000] NSWIRComm 128 PARTIES : Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales, on behalf of Stuart Dean Hill Commissioner for Public Employment - Department of Juvenile Justice FILE NUMBER: 6474 of 1999 CORAM: Sams DP Termination of employment - unfair dismissal - whether dismissal harsh, unreasonable or unjust - casual employment - allegations of serious misconduct - reinstatement sought. CATCHWORDS : Held, dismissal harsh, unreasonable and unjust - allegations not proven - onus on employer to prove allegations not discharged - applicant denied procedural fairness - reinstatement not impractical - reinstatement ordered - orders for loss of earnings. Industrial Relations Act 1996 LEGISLATION CITED : Children (Detention Centres) Act 1987 Public Health Act 1991 Antanakopoulos v State Bank of New South Wales (1999) 91 IR 385 Wilson v Director General of Department of Education and Training (unreported) IRC1735 of 1999, 21 March 2000 Ward v Director General of Education and Training (1998) 60 IR 175 Shop Distributive & Allied Employees' Association, NSW Branch v Jewel Food Stores (22 IR 2) Macleay Valley Health Service v Jeffree, 58 IR 187 Ryde Eastwood Leagues Club Ltd v Taylor 56 IR 385 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70 CASES CITED : Standley v Electronics Boutique Australia Pty Ltd (unreported) Sams DP, IRC 4516 of 1998, 18 March 1999 Thornton and Happy Hours Pre School Kindergarten (unreported) Sams DP, IRC5333 of 1998, 29 July 1999 Taggart and Bell Sports Australia (unreported) Sams DP, IRC5224 of 1998, 10 September 1999 Bankstown City Council v Paris (unreported) Wright P, Peterson J and Bishop C, IRC262 of 1999, 23 August 1999 Outboard World Ltd v Muir (1993) 51 IR 167 Rose v Telstra Corp Ltd, Ross VP, 45 AILR 3-966 Parker v Capital Painters & Decorators Pty Ltd, 68 IR 100 Police Association of New South Wales on behalf of Adam Tregonning and New South Wales Police Service, (unreported) Sams DP, IRC2799 of 1999, 8 March 2000 Jones and Dunkel (1959) 101 CLR 298 Australian Services Union of New South Wales, on behalf of Ian Ueckert, and Australian Water Technologies Pty Ltd (unreported) Sams DP, Matter IRC5553 of 1999, 25 July 2000 HEARING DATES: 05/24/2000; 05/25/2000 DATE OF JUDGMENT: 07/27/2000

Antanakopoulos v State Bank of New South Wales - [2000] NSWIRComm 128 - NSWIRComm 2000 case summary — Zoe

[12]

10 The applicant strongly denied all of the allegations made against him. He has never been interviewed by the police in relation to any of them. 11 In oral evidence, the applicant said he had been advised by his union to seek character references from acquaintances and work colleagues. He had sought to do so, but was told work colleagues had been instructed by Management not to do so. 12 In his reply affidavit, the applicant detailed his shift arrangements at the Centre. He was generally allocated 8 to 12 eight-hour shifts per month. All casual youth workers were on call and he frequently worked 7 eight-hour shifts per week. His statement of duties is outlined in Ex'3' and he elaborated on them in his reply affidavit. 13 He further said that he had been studying for a Bachelor of Social Sciences degree and at the time of dismissal was two-thirds through the course. Prior to commencing employment, he had four days' induction training - but no other training since. 14 In reply to the respondent's evidence, the applicant said he recalled an incident in late 1997 or early 1998, where Mrs Elizabeth Taber, the Centre's Occupational Health and Safety nurse, told him not to smoke outside the recreation area. He said there were no detainees in the vicinity at the time. In re-examination, he said that at the time Mrs Taber approached him, shortly after commencing employment, he was not aware that smoking was not allowed outside the recreation areas. 15 The applicant acknowledged smoking in non-designated areas. He had seen detainees smoking in the presence of Youth Workers and Team Leaders - all of whom had turned a blind eye to the practice. 16 In late 1997, Mr Adams asked the applicant about rumours that he was providing cigarettes to detainees. He denied it and no further action was taken. He refrained from carrying cigarettes on his person from that time. 17 In respect to the fourth allegation, the applicant denied ever visiting the home of Ms Anesbury (a parent of one of the detainees), and has never spoken to, or associated with, the parents of detainees outside the Centre. He denied having a conversation with any detainees about the allegations. 18 In the weeks leading up to the dismissal he had disciplined two detainees, Matthew Kemp and Callum McLeod for bad behaviour. The applicant denied taking $75 from detainee, Callum McLeod, to buy something for him. 19 In cross examination, the applicant admitted to regularly smoking, and seeing other employees smoking, in non-designated areas, such as outside the recreational room or behind the kitchen. 20 He also admitted allowing detainees to smoke and that he had been stupid to do so. He had apologised to a supervisor, Mr Dale Bassett, but had continued to let detainees smoke. He knew he was not doing the right thing. 21 The applicant was questioned as to his note to another employee, Ms Paula Errington in which he had written: ..... I am desperately in need of work references. I was wondering if you would be prepared to write one for me. On how I performed my duties in your opinion. You can also say that you do not believe I have done anything wrong. Breached policies.... (Ex'B')

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Ms Anna Whitehead (Ex'11') Mr Ivan Turner (Ex'12') Mr Jeff Nankivell (Ex'13') Ms Karen Leonard (Ex'14') 24 All were called to give oral evidence. The references dealt largely with the applicant's involvement with local soccer teams as a player and coach. Descriptors such as "valued team player", "positive role model", "incredibly honest", "reliable", "high degree of integrity" and "character beyond reproach" are to be found in the references. Ms Leonard, a registered nurse, said that the applicant always supported the Soccer Club's health and safety policies "which included a ban on mind altering substances". All of the character witnesses said they had no knowledge of the applicant's work at the Centre. The Respondent's Evidence 25 Mr Callum McLeod, a detainee at the Centre, was summonsed to give evidence. He said that he told Mr Adams that the applicant had given him $75.00; but couldn't remember when. 26 In cross examination, Mr McLeod said he was earlier sentenced to detention for robbery and, at the present time, was detained for breach of parole. During his recent detention a number of incident reports were made arising from his behaviour (Ex's '19','20','21','22','23'). The witness gave evidence of his drug use, which included speed, heroin, cocaine and marijuana. After a period of detention at Mt Penang, Mr McLeod requested, by letter, that he be transferred back to the Riverina Centre, citing that his behaviour would be "of exceptional standard and commitment" (Ex'24'). The incident reports tendered by Ms Lowson all occurred after his request for transfer was granted. 27 Mr McLeod said he didn't like it when other people got him into trouble and would "sometimes get back at them". He recalled being reprimanded for causing disturbances with other detainees while at Mt Penang. He said that after one incident, involving the applicant, he "could have" said "Let's go, we'll see who gets into trouble". 28 Over the objections of Ms Lowson, Ms Kim Anesbury was called to give evidence. At the time, I ruled, while there was much force to Ms Lowson's objections, I intended to admit the evidence subject to any adjournment application being sought. There had been no notice that Ms Anesbury was to be called, raising considerations, not only of common courtesy, but compliance with my directions for affidavit evidence to be filed and served. As I will later find that Ms Anesbury's evidence was of little value, not much turns on taking this matter any further. In any event, Ms Lowson did not apply for an adjournment. Had this evidence been of significance, I might well have been minded to comment on the circumstances in which it was sought to be admitted and the respondent's reliance on it. Suffice to say that I was less than impressed with this approach to the admission of such evidence. 29 Ms Anesbury's only evidence was that one of her children, Ricky Court, had been a detainee in the Centre. During his detention, the applicant had, on two occasions, picked him up from her home. 30 Mrs Elizabeth Taber is a registered nurse with thirty-four years experience. For the past ten years, she has been employed at the Centre. In her affidavit, Ex'E', she gave details of an incident where she observed the applicant smoking outside the recreation area, in the company of five or six detainees, who were also smoking. She said later in the day she warned the applicant as to his behaviour and would report him if "he provided contraband to the detainees again". 31 In cross examination, Mrs Taber said this incident occurred in late 1997 or early 1998, shortly after the applicant commenced employment. It was why she spoke to him privately, and did not report him to Management. Mrs Taber was also shown Ex'33', a record of interview involving a detainee and Matthew Sproule from the Department, in which Mrs Taber was present. It involved an allegation of sexual assault made by the detainee which Mr Sproule was investigating. During the interview Mrs Taber expressed concern that the L-shaped Murray unit only had one youth worker for fifteen detainees; thus making it difficult to supervise. As a result, safety concerns were raised at staff and management meetings. 32 The bulk of the respondent's evidentiary case was provided by Mr Andrew Adams, both orally and by way of affidavit (Ex'C'). Mr Adams has held the position of Co-ordinator Operations for three years and has been employed at the Centre for a period of nine and a half years. Attached to his affidavit was the record of interview with the applicant on 6 August (Annexure 1) and a Fact Finding Investigation Report arising therefrom (Annexure 2). The summary and recommendation is as follows: SUMMARY The allegations raised during the course of the Fact Finding Investigation have come from a number of unrelated sources, and as such raise serious concerns about the activities of Casual Senior Youth Worker Mr Stuart HILL. On 26 June 1999, detainee Matthew LEWIS was observed to be under the influence of drugs, a search located a quantity of marijuana in his room he was charged and found guilty. Whilst LEWIS has declined to advise where he obtained the drugs from he had not received visits for a week, and Mr HILL was rostered for the morning shift on 26 June 1999. Police have twice been advised of concerns, however due to no formal statement have declined to pursue the matter any further, other than using the information for intelligence purposes. Mr HILL had previously been spoken to in December 1997 in relation to the possibility of him providing cigarettes to detainees. Mr HILL denied this, however was informed of the consequences if this did occur.

[19]

40 He said, notwithstanding that searches are made of the detainees when they leave the Centre and on their return, drugs and cigarettes find their way into the Centre. 41 Mr Adams was asked about his investigation of the allegations against the applicant. He was shown Ex'27' - a follow up report which was not included in evidence up to this point. The report discloses unsuccessful attempts were made to have Mr McLeod attend an interview to seek clarification of his allegation. Mr Adams agreed it was important information left out of his documentary evidence. 42 Mr Adams said that following the fact finding inquiry, he recommended further investigations be carried out. His report went "up the line" to Mr Gary Page, who supported his recommendation. 43 Mr Adams was asked about Mr Sproule's investigation of a sexual assault allegation made by a detainee. He did not know that a Ms Perry had expressed concern at drugs getting into the Centre by the means of tennis balls being thrown or hit over the perimeter fence. 44 Mr Adams was asked if he would be surprised if the PSA, through its officer responsible for the Juvenile Justice Department, was not aware of any disciplinary action taken against staff for smoking in unauthorised areas. He said he wouldn't be surprised, as the PSA had only in the last couple of years, assumed membership coverage from the Health and Research Employees' Association ("HAREA"). Mr Adams was subsequently shown the Department's Smoke Free - Clean Air Policy of 9 August 1995 signed by HAREA (Ex'D'). 45 Ms Dorothy Molyneaux's affidavit was admitted late in the proceedings as Ex'34'. She was unavailable for cross examination. Ms Molyneaux is an industrial officer employed by the Association. She has responsibility for members employed by the Department of Juvenile Justice. The relevant matters not objected to, were that Ms Molyneaux was not aware of any disciplinary action being taken against staff smoking in unauthorised areas, nor was she aware of disciplinary action being taken for not reporting detainees caught smoking.

[54]

(see also Ex'7'). 53 In my view, the respondent's reliance on taking into account the casual nature of employment to justify dismissal was wrong in law. The corollary of this finding is that the decision to dismiss the applicant, being erroneously based, will almost certainly result in the dismissal decision being quashed. I have no doubt that it should be. 54 Ms Anderson claimed that there was no requirement to suspend the applicant, or provide him with alternative duties during the investigation as he was neither an "officer" or a permanent employee. Leaving aside the general unfairness of not doing so, it is sufficient for me to rely on the Department's own procedures for dealing with Allegations of Misconduct/Breaches of Discipline (Director General's Instruction No. 169/97 - Ex'10'). Par 4.4 and par 4.5 define two classes of casual staff: 4.4 For the purpose of this policy, "short term casual staff" refers to casual staff including youth workers, sessional supervisors, mentors and other staff who are employed on an "on call" or "as needs" basis and who are not on a regular or full time roster. 4.5 For the purpose of this policy, "long term casual" refers to staff, particularly youth workers, who, although they are paid at a casual rate, are employed "on line" or on full time rosters. 55 The evidence discloses that, partially at least, the Department applied par 6 of the policy to the applicant. Par 6 deals with investigations of long term casual employees: 6.1 Where allegations arise concerning a long term casual or a section 38 employee, a fact finding investigation must be conducted. Natural justice requires that the person against whom an allegation has been made, must be informed about the details of the allegations and be given an opportunity to respond to the allegations. As a matter of law, the more serious the allegation, the higher the level of proof required. 6.2 Steps 1-4 detailed below constitute a fact finding investigation. The fact finding investigation should be conducted by local managers or operation co-ordinators. 6.3 Step 1 - Gathering statements/conducting interviews Where an allegation has been made concerning a client, a detailed statement or record of interview must be taken with the client as soon as practicable. The closer the statement is taken to the time of the alleged incident, the higher the quality of the information. Statements should also be taken from all witnesses to the incident, and steps should be taken to avoid collusion between witnesses. 6.4 Where the allegation does not involve a client, statements or interviews should be taken from all persons who may have any knowledge about the matter (i.e. witness interview/statements). 6.5 All statements should be taken as soon as practicable and hearsay should be avoided (i.e. the investigator should elicit first hand information from the person who has direct knowledge about a matter, not gather information which has been passed on by a third person). 6.6 Step 2 - Physical evidence Along with statements, reports and interviews, physical evidence should also be gathered. This may involve the taking of photographs, collection of contraband items or preparation of a diagram. Where a photograph of a client is to be taken, the client's permission must first be sought. All materials relevant to the investigation must remain securely stored at all times.

[56]

6.12 Where a decision has been made to take no further action, the person under investigation must be notified immediately and the papers forwarded to the Manager Professional Conduct for record purposes. Any informants to the matter should also be notified of the outcome of the investigation. In most instances, the manager or other person conducting the investigation is the appropriate person to notify all interested parties. 6.13 Where a decision has been made to take no further action, or where insufficient evidence exists, no record is to be maintained on the staff member's local file . All records will be securely maintained in Central Support Office. 6.14 All investigation reports are to be hand-delivered, where possible, or couriered in some other secure manner. 6.15 Step 6 - Show Cause Notice Where the Director General determines that sufficient grounds exist, he may direct that the casual/temporary staff member show cause as to why their employment should not be terminated. All relevant documentation will be prepared by the Manager Professional Conduct who is responsible for co-ordinating the matter from that point. 6.16 Where a show cause notice has been issued, a 10 day turnaround is generally allowed. 6.17 Step 7 - Determination by the Director General The Director General will determine the matter after receiving a written response to the show cause notice. If not(sic) response is received within the specified time, he may determine the matter in the absence of a response. 6.18 Step 8 - Appeal rights No right of appeal exists for casual employees to the Government and Related Employees Appeal Tribunal, however long-term casual and temporary staff who are dismissed, or threatened with dismissal, may lodge a claim of unfair dismissal with the Industrial Relations Commission of New South Wales. 6.19 Temporary (section 38) staff may appeal to the Government and Related Employees Appeal Tribunal in certain circumstances. 6.20 Time limits apply in both jurisdictions.

[70]

There is a lacuna in Ms Taber's evidence to the extent that she makes a quantum leap from observing the applicant smoking with detainees to concluding the applicant had supplied the cigarettes to the detainees. 72 Before leaving this matter I make a number of observations on the evidence adduced and the credibility of the witnesses. 73 I found the applicant to be a believable and impressive witness. He did not seek to cover up, or gloss over, his shortcomings. He was open and honest - readily admitting that he stupidly smoked in non-designated areas and allowed detainees to smoke. 74 However, his frankness and credibility is to be starkly contrasted to that of Mr McLeod and Ms Anesbury - Mr McLeod's evidence left a lot to be desired and nothing Ms Anesbury said impugned the applicant one iota. 75 While I sympathise with Mr McLeod's unfortunate life experience, he was a known troublemaker, more than prone to causing trouble for other detainees or making trouble when he believed he had been crossed. He acknowledged as much himself. Shortly before the disciplinary interview, the applicant had occasion to discipline Mr McLeod. Bearing in mind his propensity for "pay back", the disciplinary interview was a golden opportunity for Mr McLeod to invent an allegation that the applicant had given him $75 for drugs. This is the most likely explanation for his allegation. 76 I am at a loss to know what purpose Ms Anesbury's evidence served. Not once was she asked about her claim that the applicant visited her home to purchase drugs. Indeed, she was initially less than willing to be interviewed about the allegation. Even more bizarre was that a detainee, Glen Cole, was alleged to have been with the applicant at the time. Mr Cole was never interviewed or called to give evidence. 77 Of course the applicant may have collected Ms Anesbury's son from home in the course of his duties. However, I am satisfied that the initial allegation was a figment of her imagination designed for a purpose unknown to me. 78 I also note that some reliance was placed on information from, and interviews with Mr Griffin and Mr Bassett. I can properly draw Jones & Dunkel inferences from the respondent's failure to call them to give evidence. (Jones & Dunkel (1959) 101 CLR 298)

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Procedural Fairness 87 In a startling admission, Ms Anderson said in submissions "my client might not be very good at investigations" (T.p159). This was a classic understatement of the bleedingly obvious. Nevertheless, I accept the candour with which it was put. 88 This case displayed a litany of procedural defects - the number, and seriousness, of which I regard as a disgrace, unbefitting of any employer; let alone a major public employer in New South Wales. 89 Before I enumerate these defects I propose to comment briefly on the nature of Pt 6 ch 2 proceedings and the principles which the Commission may take into account when determining whether the applicant has been accorded fair process. 90 Unfair dismissal proceedings before the Commission are predicated on the basis of ensuring justice is afforded to both the aggrieved applicant and the respondent employer. Ultimately, the Commission must make findings as to whether the employer's decision to dismiss the employee was, both procedurally and substantively, fair. Axiomatically, the Commission does not make the decision to dismiss; but rather reviews and tests the employer's decision against the relevant facts and according to the doctrine which has been developed over many years in this area of industrial jurisprudence. 91 In making these observations, it seems plain to me that proceedings under Pt 6 ch 2 of the Act, are not by way of a de novo hearing in order to correct any procedural faults which may have been made, or overlooked, by the employer. If this was so, the Commission would be embarking on a very strange inquiry indeed, directly contrary to the intention of the statute. It could well result in no claim ever succeeding where the process afforded to the applicant was demonstrably unfair or where an applicant was denied natural justice. The Commission could retrospectively, neatly correct the employer's mistakes. Seemingly, this is precisely what I am being asked to do in this case. It is an absurd proposition. 92 It seems almost trite to observe that the Commission is not empowered to make findings on allegations that were never known, or put to the applicant, but are subsequently said to be the basis for the applicant's dismissal. To do so, in my view, would occasion upon any applicant a most grievous injustice. 93 That is not to say that an employer is not entitled to point to information which is discovered post dismissal to justify its original decision to dismiss. But to use this information as a basis for confirming or correcting its original decision is not open when the original decision is found to be completely without foundation.

Antanakopoulos v State Bank of New South Wales

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