Breitkopf v Industrial Relations Secretary, on behalf of Department of Communities and Justice

Industrial Relations Commission (NSW)|2023-03-01

decision

By way of correspondence dated 2 September 2022, the appellant was informed that he was being fined $800 with a reprimand (the "Disciplinary Action") pursuant to ss 69 (4)(c) of the Government Sector Employment Act 2013 (NSW) (the "GSE Act").
The Disciplinary Action was for alleged misconduct of the appellant which was said to have occurred on 28 April 2021. The alleged misconduct was detailed in correspondence of 9 August 2022, as follows: On 28 April 2021, around 2:45 AM In the Control Room at Amber Laurel Correctional Centre, you Stated to Casual Correctional Officer Kasileta Vaiefe-Maliaga, "Come and suck on this" while your legs were spread, then stood up and chuckled as you exited the room.
The appellant denies that he said the words "Come and suck on this" (the "Alleged Misconduct").
The appellant filed a Notice of Appeal-Public Sector Discipline on 20 September 2022 in relation to the Disciplinary Action.

Approach and Issue for Determination

The Commissions approach to the determination of appeals made under Part 7 of the IR Act is set out in the Court of Appeal in Marroun v State Transit Authority [2017] NSWCA 273, which is: 1. It is an appeal by way of fresh hearing, in that the Commission stands in the shoes of the original decision-maker; 2. the Commission is required to consider whether the written allegation of misconduct is made out and constitutes misconduct for the purposes of ss 69(1) of the Government Sector Employment Act 2013 ((NSW) (the "GSE Act"), 3. if the Commission does not find that the alleged misconduct is made out, then the appeal is allowed; and 4. if misconduct is made out, the Commission is required to determine whether the disciplinary action, in this case dismissal with the opportunity to resign, is appropriate or should it be some lesser form of disciplinary action.

The Evidence

In support of his case the respondent relied on witness statements from the following persons: 1. Ms Kasileta Vaiefe-Maliaga, Correctional Officer; 2. Mr Mohammad Khalil, Senior Correctional Officer; 3. Mr Jason Thorpe, Senior Assistant Superintendent; 4. Mr James Guisti, Correctional Officer; 5. Mr Craig Oslan, General Manager; and 6. Ms Gemma McGreal, Legal Officer.
Annexed to the statement of Mr Oslan was video footage, without any sound recording, which records the events in which the Alleged Conduct is said to have occurred.
The appellant, relied on his witness statements of himself and also: 1. Mr Tristan Fisher, Correctional Officer; and 2. Mr David Bartle, Solicitor.

Undisputed evidence

The Alleged Conduct was said to have occurred in the Control Room of the Amber Laurel Correctional Centre on 28 April 2021 at approximately 2.45am.
The only persons present in the Control Room at the time were the appellant, Mr Fisher and Ms Vaiefe-Maliaga.
Ms Vaiefe-Maliaga does not report the Alleged Conduct prior to the conclusion of her shift on 28 April 2021.
Ms Vaiefe-Maliaga on her next shift, which commenced the evening of 28 April 2021, informs a fellow employee, Mr Guisti of the Alleged Conduct. Following the recommendation of Mr Guisti, Ms Vaiefe-Maliaga reports the Alleged Conduct to a Mr Japneet Singh, who in turn directs her to report it to Mr Khalil.
Ms Vaiefe-Maliaga has a meeting with Mr Khalil in the morning of 29 April 2021 and following she receives a phone call from Mr Thorpe requesting a written report, which she subsequently undertakes and submits on the evening of 29 April 2021.
On 29 and 30 April 2021, Mr Khalil arranges for written reports from Mr Guisti, Mr Singh and himself to be submitted Mr Thorpe.
In correspondence dated 4 May 2021 and signed by Mr Oslan, the appellant is informed that the following allegation had been made: I am advised of an incident that is alleged to have occurred on Wednesday 28th April 2021 involving yourself and another female officer in the monitor room of the Amber Laurel Correctional Centre. These allegations outline matters relating to claims of Inappropriate Sexual Banter in the Work Place.
The appellant is also informed in the 4 May 2021 correspondence that the allegations are being forwarded to the Professional Standards Branch and that he was being transferred to another work location.
It was not until the appellant received a letter of allegation dated 18 May 2022 that he was provided details of the Alleged Conduct in writing.
Mr Bartle a solicitor employed by the Public Sector Association, on behalf of the appellant provided a reply to the allegation on 6 June 2022.
On 26 June 2022, Mr Fisher received· a letter from CSNSW dated 18 May 2022, setting out two allegations, being: 1. He chuckled when the appellant said to Ms Kasileta Vaifale-Maliaga come and suck on this while his legs were spread: and 2. He failed to report sexual harassment in the workplace after witnessing the appellant state to Ms Vaifale-Maiiaga come and suck on this while his legs were spread.
In correspondence of 9 August 2022, the appellant was informed that Mr Osland had formed the view that the Alleged Conduct was established and was contemplating a fine of $1,000.00.
On 25 August 2022, the appellant and Mr Bartle attended a meeting with Mr Osland. At this meeting the appellant provided his recollection of what occurred on 28 April 2021 with Ms Vaiefe-Maliaga in the Control Room.
The appellant was first provided with the video footage on 22 September 2022.
Sometime in December 2022, Mr Fisher was provided with the video footage.

Disputed evidence

The evidence of Ms McGreal, Mr Thorp and Mr Oslan dealt primarily with matters of procedure, which was not materially challenged in any relevant respect.
The exception to the above, Mr Oslan alleges in his evidence in chief that he had a discussion with the appellant on 2 May 2021, during which he says that he put the appellant on notice of a forthcoming investigation and in reply he alleges that the appellant said the following: I think she is just confused because I said the word suck, but only 'oh yeah geez that sucks' on another personal matter.
Under cross examination, Mr Oslan maintained that the alleged conversation took place on 2 May 2021 but later conceded that it occurred when the letter of 24 May 2021 was provided to the appellant.
Ms Vaiefe-Maliaga, in her report of 29 April 2021 provided the following description of the Alleged Conduct: After conducting the regulation strip search, I returned to the control office. 1/C CO Breitkopf and First Class Correctional Officer Tristan Fisher were both present in the control office, with 1/C CO Breitkopf at the control desk and 1/C CO Fisher sitting on the seat closer to the door. As I walked in 1/C CO Breitkopf said to me 'That took a while", I replied 'The inmate was unwell and slow". I then said to 1/C CO Breitkopf "Do you need me to come and take over control?", he replied whilst sitting at the desk with his legs spread "Come and suck on this" and got up from the chair. I was very shocked at the response of 1/C CO Breitkopf which made me feet upset and mad and in return I then responded angrily and said "Shut the fuck up, you prick". 1/C CO Breitkopf and 1/C CO Fisher then both walked out of the control office chuckling at what I said.
Mr Guisti and Mr Khalil, in their reports of 29 and 30 April 2021 state that Ms Vaiefe-Maliaga had provided a description of the Alleged Conduct in almost identical terms to that set out in her report.
In her witness statement, Ms Vaiefe-Maliaga provides the following description of the Alleged Conduct: 9. I then I returned to the control room, Mr Breitkopf was sitting in a chair at the desk in the control room along with Tristram Fisher. Mr Breitkopf then said to me words to the effect of "that took a while" I replied "The inmate was slow and unwelf. I then said to Mr Breitkopf words to the effect of, "Do you need me to come and take over control?" Mr Breitkopf then replied in words to the effect of, "Come and suck on this". Mr Breitkopf was sitting with his legs spread open and was pointing towards his genital area as he said this. 10. Mr Breitkopf and Tristram laughed. I then said to words to the effect of, "Shut up you prick'. They both then stood up left the control room.
As to the appellant, in the written reply of 21 June 2022 he provided the following account of what occurred in relation to the Alleged Conduct: I remember the 28th of April 2021 as it was the first shift back after my mother's funeral. Just before 3am, the Court Escort Security Unit (CESU) transport truck arrived with fresh custody inmates on board. I entered the Control Room and asked Casual Correctional Officer (CCO) Kasi/eta Vaifale to go and assist officer Jess Murphy to process the female inmate. During this process Officer Tristram Fisher and I were discussing where to place the fresh custody inmates. Also present was the Risk Intervention Team (RIT) observation officer Corey Anderson. As the transport officer (I cannot remember the identity of this officer) walked past the control room, he remarked to me "you're back?" I said "yes". He then asked "how was your mother's funeral?" At this time, CCO Vaifale had returned to the Control Room. I then remarked to the transport officer "my mum's funeral sucked the big one". I then stood up and said "it was a tough day but what do you expect? It is what it is". Then Officer Paul Askew walked past and said "you should be used to things sucking being a Parramatta supporter''. I said to Officer Askew "you're an idiot". We all laughed and exited the control to process the fresh inmates.
At the meeting of 25 August 2021, the transcript of which sets out the following explanation of the Alleged Conduct provided by the appellant: Right. I think, I still deny that it happened, I think 100 percent I was misheard 'cause I normally, 'cause I remember when she come in and asked me did you still want ..... to sit at the chair, and I normally say, Yeah, you can sit here, you can sit on this, and then I got up. That night I remembered what made us laugh because she'd just searched a, a homeless woman who was, had a mental disability and she was difficult and it took a while 'cause when she walked back in the office I remember saying to her, Oh Jeez, that took a while, eh. And then she said, yes, she had problems, she smelt and then I said to her, and I remember, remember saying to her, she asked me if she wanted to sit in the chair. I said, Yes, I said, Yes, you can either sit here, I remember saying, You can sit on this. Got up off the chair and I remember the words that made us all laugh was, That's not in the, that's not in the brochure, the coloured brochures they hand out at the Academy. That's what we laughed at. And I left the room. At no time did I hear her swear at me……
The appellant also denied having the purported conversation with Oslan, whether it took place on either 2 or 4 May 2021.
Mr Fisher's evidence in chief with respect to the Alleged Conduct was: 20. The CCTV footage refreshed my memory of the shift where FCCO Breitkopf and I were in the Control Room when cco Vaifale-Ma!iaga had come in after carrying out a strip search of a newly arrived female inmate. 21. When I viewed the CCTV footage it reinforced the earlier belief I held that nothing inappropriate had been said to CCO Vaifale-Maliaga nor had there been any sexual harassment by FCCO Breitkopf. 22. If something inappropriate had been said to her by FCCO Breitkopf or he had sexually harassed her I would have remembered it. 23. I do not recall why CCO Vaifale-Maliaga laughed as FCCO Breitkopf and I left the Control Room, but I can say that- a. At no time did FCCO Breitkopf say to CCO Vaifale-Maliaga "Come and suck on this" or words to this effect; and b. At no time did CCO Vaifale-Maliaga say to FCCO Breitkopf 'Shut-up you prick." 24. If CCO Vaifale-Maliaga had made such a comment to FCCO Breitkopf, I would have remembered it.
The evidence in chief of Ms Vaifale-Maliaga, the appellant and Mr Foster, did not vary in any material way under cross examination.

Submissions

The respondent submitted that in determining whether or not the Alleged Conduct occurred, the Commission must weigh the evidence of Ms Vaifale-Muliaga's evidence as against the evidence of Mr Breitkopf and Mr Fisher.
It was then submitted that the evidence of Ms Vaifale-Maliaga should be accepted, for reasons including: 1. the evidence of the recent complaint made to Mr Guisti and Mr Khalil; 2. her demeanour under cross examination; and 3. the absence of any motive for her to be untruthful.
Relying upon the High Court decision of Papakosmas v The Queen (1999) 196 CLR 297 at paragraphs 13, 19, 21, 31 and 33 the respondent made the following submission in relation to the recent complaint evidence: So, under s 64 of the Evidence Act, the Commission is entitled to not only weight that recent complaint evidence of Ms Muliaga in the old way, that is that it buttresses her credibility or strengthens her credibility by reason of the consistency of the account, but also can take into account the truth of the matters canvassed in the hearsay statement.
In relation to the appellant's evidence, the respondent submitted that the Commission would not accept his version for the following reasons: 1. his failure under cross examination to provide responses to questions regarding the preparation of his witness statement with Mr Bartel which were particularly straightforward and provided contradictory answers; 2. provision of contradictory answers to questions under cross examination in relation to his interaction with Mr Fisher leading up to the hearing of this appeal; and 3. provided different versions in relation to what happened in relation to the Alleged Conduct.
As to the evidence of Ms Fisher, the respondent submitted that the Commission should be cautious with respect to the corroborative nature of it, given: 1. possible collusion between him and the appellant, as they might have spoken to each other about the contents of their evidence; and 2. the motivation for Mr Fisher, given the allegations against himself arising from the Alleged Conduct.
The respondent also submitted that Mr Fisher's evidence does not exclude the possibility of the words being said, rather his evidence was that he didn't hear them.
The appellant commenced his submission with the following: …. in misconduct matters the employer carries the burden of proving the misconduct. In this situation where you have an officer of 13 years standing with an unblemished record with no allegations of similar or of any nature ever made against him, who for the first occasion has worked with this female employee on the night in question, hasn't worked with her - hasn't spoken to her before, they may have worked on a similar shift but haven't spoken to each other, to make an allegation that this officer made such an inappropriate comment, there is a very high bar that the respondent has to overcome and nowhere have we heard that the respondent, in coming to that determination that there was misconduct, applied the Briginshaw test or the Briginshaw principle
As to the attack upon the appellant's credit, it was put that this was a product of the effluxion of time and the appellant was doing his best to extract from his memory what had occurred some-time beforehand.
With particular respect to the respondent assertions concerning his answers to the preparation of his witness statement with Mr Bartle, it was submitted that the appellant had nothing to gain from the answers given and he was simply mistaken as to what was asked of him.
As to Ms Vaifale-Maliaga, the appellant put that the Commission would not accept her evidence in relation to the Alleged Conduct.
The main reason advanced by the appellant as to why the account provided by Ms Vaifale-Maliaga did not align with the one piece of objective evidence being the video footage.
The other reason advanced by the appellant was that the explanation provided by Ms Vaifale-Maliaga as to why she did report the Alleged Conduct until this next day was implausible.
As to the respondent's reliance on s 64 and the case of Papakosmas, it was submitted that the principles flowed from sexual assault cases where there was an absence of other direct evidence, and thus can be distinguished from this case in where there was another witness as well as video footage.
In reply to the standard of proof issue, the respondent rejected that there is a higher bar. It was further submitted, that in terms of it is the civil standard, it requires the Commission to consider all the evidence in the appropriate manner. And in this case, it's about who the Commission is ultimately satisfied of one version over another, on the balance of probabilities.

Decision

The appellants submission concerning the application of the Briginshaw standard is rejected. It is correct that the principles flowing from Briginshaw provide that that cogent or strict proof is necessary to support findings of serious allegations. This is not such a case, it involves the imposition of a fine of $800.00 and is not a case involving serious allegations such as fraud or sexual assault.
The respondent has correctly set out what the Commission is required to do i.e. consider all the evidence and determine on the balance of probabilities which version is correct. Furthermore, it does not necessarily require a determination as to whether any of the witnesses has been untruthful, however such a finding could be possible.
The best evidence available I this matter, is the video footage, which I have viewed a number of times.
The video footage does not show the appellant changing his body position when Ms Vaifale-Maliaga enters the room, nor does he change his body position prior to leaving the chair to exit the room. It does not show the appellant pointing to his groin nor indicating in any other way, in relation to what the "this" is.
There is no laughing or chuckling by Mr Foster nor the appellant as stated by Ms Vaifale-Maliaga, nor does there seem to be any reaction by any person in the room that there has been something said that is out of the norm.
Given the above, I am not satisfied that that the Alleged Conduct occurred, having reached this conclusion, it is not to be taken that I find that Ms Vaifale-Maliaga has been untruthful.
Accordingly I make the following orders: 1. This disciplinary appeal of Creigan Breitkopf is allowed. 2. The fine of $800 with a reprimand made pursuant to ss 69 (4)(c) of the Government Sector Employment Act 2013 (NSW) on 2 September 2022 is set aside.

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: 09 August 2023

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