Antanakopoulos v State Bank of New South Wales

APPLICANT Ms P Lowson of Counsel Solicitor: Ms J Wright, Jones Staff & Co Union: LEGAL REPRESENTATIVES: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales

RESPONDENT Ms T Anderson of Counsel with Mr M Love, Department of Juvenile Justice

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

STUART DEAN HILL AND THE COMMISSIONER FOR PUBLIC EMPLOYMENT - DEPARTMENT OF JUVENILE JUSTICE Application by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 This is an application filed by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("the Association") on behalf of Stuart Dean Hill ("the applicant") seeking reinstatement relief pursuant to s84 of the Industrial Relations Act 1996 ("the Act") in respect to his alleged unfair dismissal by the Commissioner for Public Employment on 5 November 1999. 2 The applicant commenced employment on 7 November 1997, as a casual senior youth worker with the Department of Juvenile Justice at the Riverina Juvenile Justice Centre, Wagga Wagga ("the Centre"). 3 A notice to show cause as to why the applicant's employment should not be terminated was issued on 1 October 1999, under the signature of the Department's Director General, Ken Buttrum (appendix B to the originating application). The relevant extract from the letter identifies the following allegations against the applicant: 1. An allegation that on or before 26 June 1999, you supplied Matthew Lewis, a detainee of Riverina Juvenile Justice Centre, with a quantity of marijuana. 2. An allegation that on or around 25 May 1999, you supplied Callum McLeod, a detainee of Riverina Juvenile Justice Centre, with a quantity of marijuana. 3. Allegations that on a number of occasions you have supplied cigarettes to detainees at Riverina Juvenile Justice Centre, in contravention of departmental policy. 4. Allegations that you have attempted to purchase illicit drugs from the parent of a detainee. 5. An allegation that in mid May 1999, you failed to intervene when a detainee was sexually assaulted by another detainee in company of a third detainee, and that you in fact locked the door to the room, leaving the (victim) detainee under further threat.

4 As the terms of the letter of dismissal became the source of some debate in the arbitral proceedings, I quote the letter in full: Mr Stuart Hill 1-121 Lake Albert Road Kooringal WAGGA WAGGA NSW 2560

NOTICE OF DECISION I refer to the Notice to Show Cause dated 1 October 1999, your response to that notice and your earlier letter headed, "Letter Showing Cause why my employment should not be terminated in the Department at the RJJC". I have considered this material as well as the statements and other documents contained in the investigation leading up to this point and I have decided that you should be offered no further shifts as a casual youth worker at Riverina Juvenile Justice Centre. I have again noted your denials in relations to the allegations made against you and your concerns about the timing of your being advised of the allegations. However, I am satisfied that the Department has acted in accordance with the principles of natural justice. Each allegation was pursued as it arose, and when all available material was presented, you were afforded the opportunity to respond to the allegations.

In view of the seriousness of the matters before me and the fact that your employment is of a casual nature, I have decided, with regret, that your name is to be removed from the list of available casual employees. Ken Buttrum Director General

5 The application for reinstatement relief was listed for conciliation and directions on 10 December 1999 at which time Mr P Hood, appeared for the Association and Mr M Love appeared for the Department. 6 Attempts at conciliating the matter proved unsuccessful; the applicant maintained his primary claim that he was unfairly dismissed and should be reinstated. The Department insisted that reinstatement would not be entertained. 7 Accordingly, pursuant to s87 of the Act, I formed the view that the matter should proceed to arbitration. On 14 December 1999 I issued directions for the filing and service of affidavit material and listed the hearing for 16 March 2000 in Wagga Wagga. 8 However, on 28 February 2000, Ms Anderson of Counsel, now appearing for the Department, advised that the one day for hearing would be insufficient to complete the case. Mr Hood conceded this was likely to be the position. I amended my earlier directions and re-set the matter for three days from 24 May to 26 May inclusive. The hearing was requested to be held in Wagga Wagga based on the number of local witnesses to be called and security concerns for some of the witnesses who are detained in the Juvenile Justice Centre. The Commission found that there were practical and cogent reasons for the hearing to be held in Wagga Wagga and determined accordingly.

9 Mr Stuart Dean Hill provided oral and affidavit evidence (Exhibits '1' and '2'). His first affidavit contains exchanges of correspondence between himself and officers of the Department in the period leading up to his termination of employment. The following abridged chronology is not in dispute: 30 June 1999 - Applicant advised of an allegation that he supplied marijuana to a detainee of the Riverina Juvenile Justice Centre. Until a police investigation the applicant is removed from the shift roster (Appendix A to Ex'1'). 6 August 1999 - Applicant interviewed by Drew Adams, Co-ordinator of the Centre's Operations as to an allegation that the applicant brought drugs into the Centre (Appendix B to Ex'1'). 20 August 1999 - Applicant wrote to the Director General outlining reasons why he should not be dismissed (Appendix C to Ex'1). The applicant had been verbally told that a "show cause" letter was likely. His reply pre-empts the later show cause letter. 6 September 1999 - Acting Director General advised that investigations are continuing (Ex'9'), 30 September 1999 - Applicant wrote to the Department expressing concern at delays in investigations (Ex'8'). 1 October 1999 - The applicant received "show cause" letter identifying five allegations against him (Appendix B to the originating application). 7 October 1999 - Applicant wrote to the Director General strongly denying the allegations and protesting that four of the allegations had not been put to him in the interview of 6 August 1999. 5 November 1999 - Applicant advised of his termination of employment (Appendix A of originating application).

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')

He said that the " Breached policies " related to the allegations made against him, and not the breach of policy in respect to smoking in non-designated areas. 22 The applicant had agreed that the interview with Mr Adams was fair because he had been questioned on only one allegation; that of supplying marijuana to Callum McLeod. It would not have been fair if he had known of the other four allegations.

Character Witnesses 23 Ms Lowson, of Counsel (now appearing for the Association) tendered character references from:

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.

RECOMMENDATION Full Preliminary Inquiry be conducted into the allegations that Mr HILL provided contraband to detainees at the Riverina JJC, with further referral to police if any information comes forward that indicates criminal activity may have taken place. As Mr HILL is a casual employee, no further shifts be offered until matter has been finalised.

33 Three further interviews with other persons were held after 6 August. Detainee Callum McLeod told Mr Adams that the applicant gave him a stick of marijuana and a pouch of White Ox tobacco in exchange for $75.00. Two other employees were also interviewed, Mr Joe Griffin and Mr Dale Bassett; neither of whom provided evidence to the Commission. Mr Griffin, in his interview, said that detainee Matthew Kemp told him that the applicant brought marijuana into the Centre. Mr Bassett, in his interview, said Ms Anesbury approached him outside work and told him the applicant, in the company of another detainee Glenn Cole, had visited her home seeking to obtain drugs. 34 Ms Anesbury had approached Mr Adams on 23 August and told him that the applicant had visited her at home for the purpose of purchasing drugs and that while her son was in custody, he had visited the applicant's home with the intention of purchasing drugs. At the time, Ms Anesbury declined to make a statement and has continued to refuse to do so.

35 In oral evidence, Mr Adams was not asked about these matters. He was, however, asked about Departmental policy on smoking and said until five years ago detainees were permitted to smoke at the Centre. In his time at the Centre, during regular visits, he had never observed any detainees smoking, nor had he observed employees smoking in non-designated areas. He said, to obtain cigarettes a detainee would have to bring them in, or have someone else do so. It was a legislative requirement which made it unlawful to provide drugs, contraband or alcohol to detainees - s37B of the Children (Detention Centres) Act 1987. 36 In cross examination, Mr Adams described the shift arrangements for the various categories of employees at the Centre. 37 He also described the detainees as aged between 11 and 21, often from underprivileged backgrounds with a family history of violence. A significant proportion of detainees had drug habits and a history of being victims of sexual assault. Many have limited social and literacy skills and come from dysfunctional families. Fifty to sixty percent are from aboriginal backgrounds. 38 The maximum number of detainees is thirty-four and he described industrial action taken last year because of insufficient staff to detainee ratios. As a result, it had been agreed to close down one of the units. 39 Mr Adams agreed that with a small detainee population: i) rumours spread quickly; ii) everybody knows what's going on; iii) a "pecking" order exists among the detainees; iv) employees need to be aware of detainees' stand over tactics.

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.

SUBMISSIONS 46 Ms Lowson's submissions may be summarised as follows:

The applicant's dismissal was harsh, unreasonable and unjust.

The applicant seeks reinstatement to the casual list of employees available for the Department's facilities near his new place of residence in Sydney;

The dismissal displayed gross defects in procedure, which included: (a) there were no findings of misconduct in respect to any of the five allegations made against the applicant; (b) only one of the five allegations said to justify dismissal was put to the applicant in the interview with Mr Adams. Even this allegation was not put with any specificity;

(c) the five allegations were first raised in the Show Cause letter of 1 October 1999;

(d) the applicant was not provided alternative duties, in accordance with the Premier's Memorandum, dealing with investigations of employees;

(e) the applicant was unfairly treated because of his casual employment status;

(f) despite being told the matter was being dealt with in a "timely fashion" nothing occurred from the interview with Mr Adams on 6 August to the Show Cause letter of 1 October. The applicant expressed concern with the delay;

(g) the inquiry in total took four months - during which time the applicant was denied an opportunity to work alternative duties;

(h) the conclusions of Mr Adams and Mr Sproule were to recommend further investigations. None were undertaken. Scant unsuccessful attempts were made to contact detainees, McLeod and Margetson;

(i) the Acting Director General indicated that there should be more inquiries - but none were undertaken;

(j) these matters must raise serious questions as to the capacity of the Department to conduct proper investigations of its employees.

As to procedural fairness, Ms Lowson referred me to Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385, Wilson v Director General of Department of Education and Training (unreported) IRC 1735 of 1999, 21 March 2000, Ward v Director General of Education and Training (1998) 60 IR 175.

The respondent had an opportunity before the Commission to make out the allegations of misconduct. It couldn't, and did not even try.

There were contradictions in the version of events detainee Kemp told Mr Griffin and what he told the police. Mr Adams did not take this contradiction into account.

Mr Burge's recount of the allegation of sexual assault was inconsistent with the allegation against the applicant. In any event, the respondent did not attempt to prove this allegation.

Ms Anesbury's evidence did not prove, or even go near proving, the allegation that the applicant sought to purchase drugs from her. Her evidence goes nowhere.

Mr McLeod's claim that the applicant sold him drugs was untrue. Mr McLeod was not adverse to getting people into trouble if he had been disciplined or punished.

In contrast, the character references for the applicant were of an extraordinarily high quality and should be considered in assessing the credibility of witnesses. See Shop, Distributive & Allied Employees' Association, NSW Branch v Jewel Food Stores , 22 IR 2.

The applicant was prevented from accessing witnesses employed by the Department.

There is no evidence that the Department took into account the applicant's period of exemplary service.

The only evidence is that the applicant freely admitted to smoking in non designated areas and allowing detainees to smoke. Ex'A' is not a policy or a determination. 47 In submissions, Ms Anderson invited the Commission to consider all of the evidence adduced in the case. She said that the respondent had not proved any of the five matters set out in the Notice to Show Cause. She added:

1. the complaint that the investigation "dragged on" was because of the difficulties in obtaining statements from Ms Anesbury and Mr McLeod;

2. the employer always acted in a bona fide manner;

3. while the respondent " might not be very good at investigations " (T.p159), its primary concern was its obligations under the Children (Detention Centres) Act 1987. She referred me to Macleay Valley Health Service v Jeffree , 58 IR 187.

4. the evidence proves that the applicant breached policies in respect to smoking. Cigarettes are "contraband" for the purposes of s37B of the Children (Detention Centres) Act 1987. By condoning detainees smoking, the applicant condoned trafficking because it was the only way cigarettes could have been brought into the Centre. It was corrupt conduct;

5. Ms Anesbury's evidence demonstrates the applicant lied to the Commission;

6. because the applicant was a casual, there was no capacity to suspend him;

7. the application should be dismissed because the applicant does not deserve to be reinstated.

Nature of Employment 48 The applicant was a casual senior youth worker. It is uncontested that he worked regularly, and systematically, for the Department for two years. 49 There is no doubt that, as a matter of jurisdiction, the application for relief pursuant to Pt 6 ch 2 of the Act, is competently before the Commission. 50 The exceptions referred to in reg 5B of the Act are all met by a correct analysis of the applicant's employment extrapolated from the evidence. I find, in particular, that the employment was:

a) on a regular and systematic basis for over six months; and

b) the applicant had a reasonable expectation of continuing employment with the Department.

See also Ryde Eastwood Leagues Club Ltd v Taylor , 56 IR 385. 51 Ms Anderson, properly in my view, did not take issue with the casual nature of employment as a barrier to the application proceeding. On the other hand, however, she did raise it generally as a matter for the Commission to consider in the exercise of its discretion to refuse relief to the applicant. 52 Regrettably, however, there was no doubt in the minds of the respondent's decision makers, that the applicant's casual employment was a factor - indeed a significant factor - in determining to dismiss him.

This is best illustrated by the final paragraph of the Director General's letter of dismissal: .... In view of the seriousness of the matters before me and the fact that your employment is of a casual nature , (my emphasis) I have decided, with regret, that your name is to be removed from the list of available casual employees.

(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.

6.6 Step 3 - Disciplinary interviews Once all available information has been gathered about the matter under investigation, a disciplinary interview should be conducted with the person or persons against whom an allegation has been made. It is important that the disciplinary interview guidelines (contained in Volume 1 of the Personnel Handbook) are followed. 6.7 A disciplinary interview should be conducted by a direct line manager (i.e. the next senior person to the person(s) under investigation), unless the line manager is in some way involved with the matter (other than being recipient of information relating to the matter). 6.8 Step 4 - Report on investigation The person conducting the investigation should then prepare detailed report on the investigation including a summary of findings and recommendation for further action. The report should be forwarded to the relevant Cluster Director for comment (and action if appropriate). 6.9 Step 5 - Referral to Director General through Manager Professional Conduct Where further action has been recommended (i.e. a recommendation for the termination of employment), the Cluster Director must refer the matter to the Director General through the Manager Professional Conduct. 6.10 Where further action other than termination of employment is recommended, (i.e. counselling, warning) the matter must be referred for the attention of the Manager Professional Conduct with recommendations for proposed action. Where counselling and/or warning by the Cluster Director or Manager is recommended, a draft letter should be attached for comment prior to the document being attached to the officers local file. 6.11 Where it is recommended that no local record be maintained, a suitable proposal for local counselling/further training should be forwarded for comment.

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.

56 However, in my view, and according to the conventional approach to interpretation of documents, the totality of the document must be considered to give effect to its true intent. In this regard, par 9.1 and par 9.2 are also relevant: 9.1 Where an employee is under criminal or internal investigation and it is inappropriate for the employee to continue in their usual duties, the first option is for the Director General (or the relevant Cluster Director) to place the employee on alternative duties or duties in another location. (see also the Provision of an Abuse Free Environment in the Department of Juvenile Justice ). 9.2 The Director General may suspend an employee from duty with pay, where it is considered the charges are serious enough, or having the employee remain at work would be detrimental to the effective running of the agency. 57 It is abundantly plain, particularly when juxtaposed with par 10.4 dealing with criminal charges and conviction against a casual employee, that the term "employee" in the Premier's Memorandum applies to all employees - not merely permanent officers. 58 The applicant, relying on 9.1 of the Director General's instruction, had requested, through his solicitor on 4 July 1999, to be placed on alternative duties during the investigation. This was refused (Ex'7'). There is no evidence that Management considered - let alone investigated - the option of alternative duties or another location. In these circumstances, I find this refusal to be unreasonable and also directly contrary to the Department's own policies and in breach of the Premier's Memorandum.

Reasons for Dismissal 59 In her final submissions, Ms Anderson acknowledged that none of the allegations in the Show Cause letter had been proven; either by the employer, before dismissal, or during the Commission proceedings. 60 This breathtaking, but nevertheless candid concession, compels only one, inevitable result. 61 The principles to apply when allegations of misconduct are considered by the Commission are now well settled by the relevant authorities. These authorities make it pellucidly clear that it is insufficient for an employer to make allegations of misconduct; the employer must prove such misconduct. This principle is succinctly put in the oft quoted authority of Hungerford J in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70. The passage bears repeating:

The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct, but must also prove it.

62 In Standley v Electronics Boutique Australia Pty Ltd, IRC 4516 of 1998, 18 March 1999, I considered the serious implications for an employee where allegations of misconduct are made. I said at p14: It hardly needs to be said that summary dismissal is the most serious form of sanction an employer can take against an employee. It can, not only serve as a means of punishing the employee for transgressions in the then existing employment relationship but can, and often does, jeopardise and diminish the employee's future employment prospects.

A finding by this Commission that a summary dismissal was justified, is a most serious matter which may unhappily burden and grievously harm an employee for years into the future. See also my discussion of this matter in Thornton and Happy Hours Pre School Kindergarten , IRC5333 of 1999, 29 July 1999 and Taggart and Bell Sports Australia , IRC5224 of 1998, 10 September 1999. 63 The serious unproven allegations made against the applicant have gravely impugned his reputation. Left to stand unchallenged, these allegations would seriously hamper his future employment prospects, damage his reputation and more than likely, deleteriously effect his well being and that of his family. It is the Commission's duty - indeed, its obligation - to correct the injustices the applicant has so plainly suffered. I unreservedly intend to do so. 64 I have no doubt that the applicant's dismissal falls under the three descriptors of being "harsh, unreasonable and unjust". See Bankstown City Council v Paris (unreported) Wright P, Peterson J and Bishop C, IRC262 of 1999, 23 August 1999 and Outboard World Ltd v Muir (1993) 51 IR 167.

In Rose v Telstra Corp Ltd Vol 45 AILR 3-966, Ross VP described these terms as: In my view, for the purpose of s.170CG, a termination of employment may be: HARSH, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct; UNJUST, because the employee was not guilty of the misconduct on which the employer acted; and/or UNREASONABLE, because it was decided on inferences which would not reasonably have been drawn from the material before the employer.

Connor C in Parker v Capital Painters & Decorators Pty Ltd , 68 IR 100, defined the terms thus: harsh - too severe, having regard to all the circumstances. unreasonable - immoderate, excessive or extravagant. unjust - unfair, inequitable, undeserved or biased

See also Police Association of New South Wales on behalf of Adam Tregonning and New South Wales Police Service, Sams DP, Matter IRC2799 of 1999, 8 March 2000. 65 I am absolutely convinced that the impact of the applicant's dismissal more than fits the above definitions. 66 This finding is, not only reasonably open to the Commission, but is demanded by the evidence. A fortiori, by the extraordinary admissions of the respondent.

The Employee's Conduct 67 In an attempt to retrieve some respectability for an otherwise hopeless position, the respondent invites the Commission to ignore the unproven allegations upon which the dismissal was based, and take account of other allegations which emerged during the case. 68 This is an exotic and novel approach; need I say, however, an approach which is completely without merit. 69 Ms Anderson invited the Commission to find that the applicant was not a fit and proper person to be in charge of young detainees. This was so because:

i) he smoked cigarettes in non designated smoking areas of the detention complex;

ii) contrary to policy, he allowed detainees to smoke. 70 The applicant, of course, honestly and openly admitted to both of these matters. He did not equivocate or excuse his actions. When asked why he allowed detainees to smoke, he answered "stupidity". 71 Ms Anderson relied on the only incident where he was observed smoking by Mrs Taber, the Centre's nurse, in late 1997 or early 1998. I note that:

1. There was no disciplinary action against the applicant arising from this incident;

2. This incident occurred very soon after the applicant commenced employment. The applicant said that, at the time, he was unaware of the policy, having only recently commenced employment; 3) There was no evidence of any documented policy concerning these matters, albeit that the applicant acknowledged his subsequent actions were in breach of policy.

4. 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)

Relevance to other Statutes 79 Ms Anderson referred me to s37B of the Children (Detention Centres) Act 1987 and s59 of the Public Health Act 1991. 80 With respect, neither of these statutes has any bearing on the facts disclosed in this case. s37B of the Children (Detention Centre) Act is expressed as follows: Trafficking in alcohol, drugs or other things A person who, without lawful authority: (a) brings or attempts to bring into a detention centre any alcohol, drug or other thing of any kind; or

(b) delivers or attempts to deliver to a detainee any alcohol, drugs or other thing of any kind, is guilty of an offence and is liable to a penalty not exceeding 10 penalty units or imprisonment for a period not exceeding 12 months, or both. 81 There is no hint or suggestion, let alone any evidence that the applicant was trafficking in cigarettes. Moreover, I have some doubt whether this section is intended to have application to cigarettes. 82 The Public Health Act 1991 makes it illegal to sell cigarettes to persons under eighteen years of age. Again, there is no suggestion or evidence that the applicant sold cigarettes to any detainee - whether under eighteen or otherwise. 83 Accordingly, both Acts are nihil ad rem. 84 I am therefore left with the question of whether the acknowledged behaviour - ie of smoking in non designated areas and allowing detainees to smoke was such as to warrant dismissal. 85 Ms Anderson described this behaviour as corrupt. This is a ruthless and draconian interpretation. I cannot agree. 86 I have no doubt that these charges are so unexceptional and probably so widespread that they would, at the very most, justify a warning. This is not to condone the behaviour, as the applicant himself candidly acknowledged; but it is a long way short of justifying dismissal.

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.

94 The authorities make it abundantly plain that an employee is entitled to know the full extent of the allegations and have had an opportunity to defend him or her self against the allegations before an employer makes a decision to terminate the employment. 95 The Commission's role, particularly having regard to s88, is to make findings as to whether the allegations had a basis in fact, whether the applicant was aware of, and had an opportunity to make out a defence against the allegations. 96 s88 is in the following terms: Matters to be considered in determining a claim

In determining the applicant's claim, the Commission may, if appropriate, take into account:

a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and

b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and

c) whether a warning of unsatisfactory performance was given before the dismissal, and

d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and

e) whether or not the applicant requested reinstatement, or re-employment with the employer, and

f) such other matters as the Commission considers relevant".

97 There are a number of observations to be made about s88:

2. The Commission is not limited to the matters identified in the section.

3. The factors which may be taken into account are both particular, eg whether a reason was given for dismissal, and general - sub par (f).

4. s88 applies to dismissals where allegations of misconduct are made.

5. The matters in s88 can be broadly defined as those relating to procedural fairness. 98 Before turning to the particular circumstances of this case I refer to the various authorities dealing with procedural fairness and which I discussed recently in Australian Services Union of New South Wales, on behalf of Ian Ueckert, and Australian Water Technologies Pty Ltd, (unreported) Matter IRC5553 of 1999, 25 July 2000. At par 307 I said: It is now well established that a finding of "harsh, unreasonable or unjust" can apply to both the substance of the dismissal and/or the procedure leading to the dismissal.

The oft quoted authority for this proposition is Byrne & Anor v Australian Airlines (1995) 185 CLR 410 at p465: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

The distinction between procedure and substance is elusive. This is so even in those fields of private international law, the statute law dealing with limitations of actions and the effect of repeal upon accrued rights, and the Statute of Frauds, where it has an entrenched operation (217). In our view, it is unhelpful and contrary to the tenor of the Award to introduce it into cl.11(a).

That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable (218). But the question under cl.11(a) is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking at the first issue before there is seen to be any need to enter upon the second .

See also Bigg v New South Wales Police Service, 80 IR 434, where a Full Bench said at p454: As the Full Commission made plain in Busways , an employee is entitled to know prior to dismissal the nature of and, as necessary, the detail of the material known to the employer which is against the employee's interests. The employee is also entitled to an opportunity to respond to that material. If an employer fails to give an employee such an opportunity before dismissal, that is a matter which the Commission may take into account in proceedings brought under s.246 in determining whether the dismissal was harsh, unreasonable or unjust.

See also Burke v McGirr (1995) 87 IR 54 at 55-56; Owens v New South Wales Police Service (1998) 90 IR 42; Johnson v Catholic Education Office, Diocese of Parramatta , 87 IR 57 at 64; Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 and my discussion of the principle in Myers v New South Wales Police Service , 93 IR 123; National Union of Workers, New South Wales Branch, on behalf of Phillip Charles Mumby, and Davids Distribution Pty Ltd (unreported) IRC2056 of 1999, 9 February 2000; Herson and One.Tel Ltd (unreported) IRC5181 of 1998, 18 February 2000 and Yopp v Advanx (Gosford) Motor Services Pty Ltd (unreported) IRC4592 of 1998, 7th May 1999.

The principle has been recently reaffirmed in Antanakopoulos v State Bank of New South Wales (1999) 91 IR 385 where at p389: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain circumstances, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust.

and later, at page 390: While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust . 99 The following are examples of the many identified and admitted procedural defects:

1. Not one of the five allegations in the Show Cause letter of 1 October 1999 were proven, either before dismissal or during these proceedings.

2. Four of the five matters in the Show Cause letter were unknown to the applicant when he received the letter.

3. Only one allegation was put to the applicant in the fact finding interview on 6 August. Even this allegation was not put with any specificity.

4. Mr Adams' fact finding investigation was based on little more than hearsay.

5. Despite asking to be provided with alternative duties while the investigation took place, this was refused. The Department's own policy required he be transferred or offered alternative duties.

6. It took five months to conclude the investigation, during which there were many weeks of complete inertia.

7. The letter of termination did not say that the allegations were proven.

8. At no time was there a finding by the employer of misconduct.

9. Two recommendations from Management (Mr Adams and Mr Sproule) were that further investigations be made. These recommendations were not acted upon and nothing further was done.

10. There was no evidence, following Mr Adams' recommendation, as to what served as a catalyst for the decision to issue a Show Cause letter.

11. The emphasis on the applicant's casual employment was an unlawful presumption made by the employer.

CONCLUSION 100 The dismissal of the applicant and the process of the dismissal were so manifestly unfair, being harsh, unreasonable and unjust, such as to warrant the grant of the full extent of the relief sought by him. I propose to do so. 101 It adds to his credit that the applicant has consistently sought reinstatement to the casual employment list. The respondent, in accordance with its onus to do so, produced no evidence that such reinstatement would be impractical. In any event, the Department is a large employer with many work locations in New South Wales. I also note that reinstatement is not sought to a permanent position, but to the list of casual youth workers who are available as, and when, required. 102 In my view, there is no impediment to the applicant's name being restored to the list of casual youth workers and for work to be made available to him in the usual way. I will so order. 103 In my view, this is a clear case where an order for loss of earnings from dismissal to reinstatement is warranted. However, I note that the practical effect of his removal from the shift roster on 30 June 1999 deprived the applicant of any income from this time until dismissal on 5 November 1999. As earlier stated, this was not only unfair, but contrary to the Department's own policies. 104 Accordingly, I propose that the following orders will include payment for the applicant's loss of earnings from 30 June 1999 to reinstatement. 105 I conclude with these comments. Ms Anderson argues that the applicant is not a fit and proper person to be employed by the Department of Juvenile Justice. In my opinion, this view is patently wrong. On the contrary, the applicant's dedication and enthusiasm to improve his skills and knowledge will prove him to be a most positive and valuable asset for the Department. ORDERS 106 The Commission makes the following orders:

1. Pursuant to s89(1) of the Act, the Department of Juvenile Justice shall restore forthwith Mr Stuart Dean Hill's name to the list of casual employees available for employment as a casual youth worker at either of its facilities at Campbelltown or Wollongong or such other facility as may be agreed.

2. Mr Hill be offered employment on the same basis and according to the same criteria as all other employees on the casual list.

3. Pursuant to s89(4) of the Act, Mr Hill's employment with the Department shall be deemed to be continuous from 30 June 1999 until today's date.

4. Pursuant to s89(3) of the Act, the Department shall pay to Mr Hill an amount for loss of earnings for the period from 30 June 1999 to today's date. The amount shall be calculated by averaging the applicant's weekly salary in the six months prior to 30 June 1999 and multiplying this rate by the number of weeks between 30 June 1999 and today's date;

5. The amount in order (4) shall be less any remuneration earned by the applicant since 5 November 1999;

6. The parties to confer as to finalising the arrangements specified in these orders;

7. Liberty to apply is available to either party in the absence of any agreement as to the settlement of these orders.

8. These orders are to take effect on 27 July 2000 and in respect to the amounts referred to in Order 4, such amounts are to be paid within twenty-one days hereof.

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.