Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd

Industrial Relations Act 1996 - s 154, LEGISLATION CITED: Public Sector Employment and Management Act 2002 - s 42(1), s 44, s 45, s 46, s 48

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 CASES CITED: Jarratt v Commissioner of Police (NSW) [2005] HCA 50; (2005) 224 CLR 44 at [51] Public Employment Industrial Relations Authority v Scorzelli [1993] NSWIRComm 129; [1993] NSWIRC 48; (1993) 49 IR 169

Mr M Gibian of counsel (Applicant) Solicitors W.G. McNally Jones Staff LEGAL REPRESENTATIVES: Mr A Britt of counsel (Respondent) Solicitors Director of Public Employment by his agent the Chief Executive of the Department of Human Services

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and the Director of Public Employment by his agent the Director-General of the Department of Human Services (Juvenile Justice)

Application for a declaration under s 154 of the Industrial Relations Act 1996.

1 By letter dated 30 April 2009, Mr Peter Muir, the Director-General of the New South Wales Department of Juvenile Justice dismissed Philip Sullivan from the Public Service on and from 24 April 2009. On 25 May 2009, the applicant in these proceedings commenced proceedings against the respondent before the Industrial Relations Commission of New South Wales pursuant to s 84 of the Industrial Relations Act 1996 claiming, in effect, that Mr Sullivan had been unfairly dismissed. 2 By application filed in this Court on 26 November 2009, the applicant sought a declaration under s 154 of the Industrial Relations Act 1996 that, inter alia, "the purported disciplinary action taken with respect to Mr Sullivan by letters dated 9 April 2009 and purported termination of Mr Sullivan's employment effective close of business 24 April 2009 is void and to no effect." 3 No question was raised during the hearing of this application concerning the jurisdiction and power of this Court to make such a declaration in the circumstances of these proceedings. Accordingly, I shall focus in these reasons for judgment on the principal matters of controversy between the parties. Factual background

4 There was tendered into evidence for the purpose of these proceedings a bundle of documents. I shall extract from them such factual material as appears to me to be relevant to the disposal of the proceedings. 5 Mr Sullivan commenced employment with the Department of Juvenile Justice as a casual employee some time in 1992 and became permanently employed in 1994. At the time of the incident that gave rise to these proceedings, Mr Sullivan worked as a Juvenile Justice Officer (Aboriginal) in Grafton. On 27 July 2008, Mr Sullivan's driver's licence was suspended after being found guilty of driving with a mid-range prescribed concentration of alcohol in his blood. Shortly thereafter, and whilst his driver's licence remained suspended, Mr Sullivan was apprehended for speeding whilst driving. Furthermore, Mr Sullivan continued to drive a departmental vehicle in the course of carrying out his duties and did so on about ten occasions before advising his supervisor, a Mr Paul Dwyer, on 10 October 2008 that his licence had been suspended. Later, Mr Sullivan was disqualified from driving for a period of 18 months. He was suspended from duty on 25 November 2008 and Mr Muir instigated an investigation to ascertain whether Mr Sullivan had engaged in misconduct. The investigation was carried out by a Mr David Madden. On 16 February 2009, Mr Muir informed Mr Sullivan that the investigations had been completed and that he had formed the opinion that Mr Sullivan had engaged in misconduct. That was particularised as referring firstly to the fact that Mr Sullivan had driven on or about 27 July 2008 whilst a mid-range prescribed concentration of alcohol was present in his blood in breach of the Code of Conduct established by the Department, secondly, that Mr Sullivan had failed to notify his manager that his licence had been suspended and that he was unable to drive a departmental motor vehicle whilst having a current and valid driver's licence and, thirdly, that on ten occasions between 27 July 2008 and 30 September 2008 Mr Sullivan had driven a department vehicle whilst his driver's licence had been suspended. The letter informed Mr Sullivan that Mr Muir was considering imposing disciplinary action, that there were eight possible disciplinary actions available, enclosed a copy of the investigation report and attachments and gave Mr Sullivan 14 days to make submissions. The letter said in part that, before making a final decision on what action might be taken, Mr Muir would consider the investigation report, the objectives of Part 2.7 of the Act, "your previous employment matters (such as past remedial actions, warnings or discipline matters or alternatively previous satisfactory work history), conduct and services reports and personnel file", and any submission made by Mr Sullivan. Furthermore, Mr Sullivan was informed that he could attend an interview with Mr Muir accompanied by a union or other representative to discuss the matter. 6 The following day, 17 February 2009, Mr Muir forwarded another letter to Mr Sullivan asserting that Mr Sullivan had been convicted of an offence punishable by imprisonment for 18 months, of driving whilst his licence had been suspended, enclosed a certificate of conviction and a transcript of the criminal proceedings and indicating that, pursuant to s 48 of the Public Sector Employment and Management Act 2002 ("the Act"), he was considering imposing disciplinary action. Mr Sullivan was given 14 days to make a submission about whether disciplinary action should be taken. The letter said in part that, before making a final decision on what action might be taken, Mr Muir would consider the conviction, the objectives of Part 2.7 of the Act, "your previous employment matters (such as past remedial actions, warnings or discipline matters or alternatively previous satisfactory work history), conduct and services reports and personnel file", and any submission made by Mr Sullivan. That letter also gave Mr Sullivan an opportunity of an interview with Mr Muir. 7 Mr Sullivan wrote to Mr Muir by letter dated 5 March 2009 in which he made certain submissions about what action should be taken by Mr Muir. Presumably, that letter was intended to respond to the material in the letters of both 16 and 17 February 2009. 8 Mr Sullivan attended an interview with Mr Muir and others on 16 March 2009. Mr Muir gave him an opportunity of discussing the "three disciplinary matters". There was a general discussion about a number of matters. 9 Mr Muir wrote two letters to Mr Sullivan, both dated 9 April 2009. In one of them, he referred to an earlier letter of 16 February 2009 in which he had advised him that he had formed the opinion that Mr Sullivan had engaged in misconduct. He said that he had considered submissions and additional information provided by Mr Sullivan and that he had decided "in accordance with s 42(1) of the (Act) to take disciplinary action …" namely by directing him to resign from the Public Service and upon failure to resign within the nominated timeframe he would be dismissed from the Public Service. 10 The other letter referred back to a letter of 17 February 2009 and the fact of conviction for an offence punishable by imprisonment of 12 months or more. The letter asserted that Mr Sullivan had not made any written submissions or had an interview with Mr Muir about the offence and that he had accordingly decided to take disciplinary action, namely directing Mr Sullivan to resign within the same timeframe as the earlier letter. 11 There then followed correspondence between a representative of the applicant and the respondent. This indicated that "Mr Sullivan has been the subject to (sic) two professional conduct matters; one involving allegations of misconduct and the other involving a serious offence. Both matters have been dealt with concurrently however, they have remained separate." 12 Ultimately, Mr Muir wrote to Mr Sullivan by letter dated 30 April 2009 referring to a failure to resign as requested and indicating dismissal effective on 24 April 2009. Significantly, that letter referred to the decision made by Mr Muir to take disciplinary action "to deal with your conviction for a serious offence." That letter did not purport to take any action with respect to the allegations of misconduct which had also been made by Mr Muir against Mr Sullivan. 13 Mr Muir swore an affidavit which was filed in the Unfair Dismissal proceedings commenced in the Industrial Relations Commission of New South Wales. That affidavit became evidence for the purpose of these proceedings. There are some matters referred to in that affidavit which assumed significance for the purpose of these proceedings. Before discussing that material, however, I need to refer briefly to the statutory background against which the action against Mr Sullivan was taken. This is contained within the provisions of the Act. This is an Act that deals, in general terms, inter alia, with "the Public Service". Part 2.7 of the Act is entitled "Management of Conduct and Performance." It permits "disciplinary action to be taken" in a number of instances. Relevantly, for the purpose of these proceedings, they include "misconduct" (dealt with under s 46) and a conviction of a "serious offence" (dealt with under s 48). I shall return to examine these provisions in some detail later in these reasons for judgment. It is necessary to observe at this stage that initially proceedings were taken against Mr Sullivan for misconduct, but proceedings for conviction of a serious offence were also commenced later, after the conviction against Mr Sullivan had been recorded. As was stated on behalf of Mr Muir, and as is obvious from the evidence tendered in these proceedings, both procedures were dealt with concurrently. However, the final decision to dismiss Mr Sullivan was based ultimately upon his conviction for the serious offence. The evidence of Mr Muir 14 I now turn to the evidence of Mr Muir as contained in his affidavit. In that part of his affidavit in which he dealt with his consideration of Mr Sullivan's circumstances, he commenced by stating: In arriving at the decision to direct Mr Sullivan to resign, in the first instance, I considered all of the materials placed before me ….

Whilst there was controversy between the parties as to whether Mr Muir was addressing himself to whether Mr Sullivan had been guilty of misconduct or had otherwise conducted himself in a manner which would warrant the taking of disciplinary action, it is my understanding that Mr Muir was in fact addressing himself to what disciplinary action should have been taken against Mr Sullivan on the basis that he had already determined that there were circumstances in the nature of misconduct or, relevantly, there had been a conviction for a serious offence. 15 Mr Muir then went on to describe the fundamental and intrinsic requirements of Mr Sullivan's position as a Juvenile Justice Officer, which would include, in his opinion, an understanding of the law and legal processes and the necessity for the legal system to be enforced. He observed that a Juvenile Justice Officer is required to "supervise Court Orders" and "to act in accordance with all relevant legislation and agency policies, including the Code of Conduct and Information Security." Furthermore, a Juvenile Justice Officer would need to possess "pro-social interpersonal skills and a current driver's licence." 16 In describing why it was that, in his opinion, Mr Sullivan was unable to perform "the inherent requirements of a Juvenile Justice Officer", Mr Muir referred to an inability to undertake long-distance travel and work in geographically isolated areas. He also concluded that Mr Sullivan had "demonstrated an inability to manage his own behaviour" and, importantly for present purposes, that he had "demonstrated criminal behaviour and a pattern of dishonesty." 17 At [42] of his affidavit, Mr Muir said: 42 As a Juvenile Justice Officer Mr Sullivan was responsible for ensuring compliance to the orders of courts and other legal tribunals, yet has demonstrated an inability to abide by those conditions in his own life. In my decision making process, the behaviour presented by Mr Sullivan was a more determining factor than the criminal conviction. 18 I can only assume that the "behaviour" to which Mr Muir referred above was a failure to demonstrate that he had "pro-social interpersonal skills" together with "demonstrated criminal behaviour and a pattern of dishonesty." 19 It will be observed that Mr Muir stated categorically that his "decision making process", by which I understand him to be referring to the decision as to what disciplinary action should be taken, was influenced more by Mr Sullivan's behaviour than the criminal conviction. This was a matter upon which the applicant fastened in asserting that the orders sought should be granted. 20 Mr Muir's affidavit then traversed a number of matters that, as I understand it, sought to justify his assessment of Mr Sullivan's behaviour. Firstly, he noted that in the transcript of the proceedings in the local court dealing with Mr Sullivan's speeding offence, Mr Sullivan had told the police officer that his licence was "at home" even though at that stage it had already been suspended. Mr Muir thought that this indicated dishonesty on the part of Mr Sullivan. 21 Mr Muir observed that Mr Sullivan had sought approval to drive departmental vehicles on ten occasions after his licence was suspended and that those applications had been made in writing. He thought that "such actions indicated to me a level of premeditation in not only breaking the law but also Departmental policies and procedures." 22 Furthermore, Mr Sullivan had told Mr Madden in the course of his investigations that he was unable to inform his supervisor, Mr Paul Dwyer, that his licence had been suspended because Mr Dwyer was on leave. However, Mr Dwyer had signed an approval for Mr Sullivan to use a departmental vehicle on 1 August 2008 which was eight days after Mr Sullivan's licence was suspended. This was a short period only in which Mr Sullivan could have informed Mr Dwyer about this matter. 23 In his affidavit, Mr Muir also concluded that Mr Sullivan had recorded false information in departmental records about who had driven departmental vehicles during the relevant period. 24 Finally, Mr Muir took into account Mr Sullivan's prior performance and his disciplinary history. He noted that Mr Sullivan had been given a warning by a person who had previously occupied the position of Director-General in connection with another disciplinary matter on 28 November 2006 and that therefore "Mr Sullivan did not come before me with an unblemished record". Mr Muir noted that the previous disciplinary matter referred to receipt by Mr Sullivan over a long period of time of emails containing sexually explicit material from other employees within the Department of Juvenile Justice and that he had failed to report receipt of those emails. 25 Having regard to these matters, Mr Muir concluded that he had lost confidence in Mr Sullivan and then discussed the options available to him. He determined that taking into account "Mr Sullivan's age, service record and employment prospects and the matters outlined by him in his representations to me …." that he would direct Mr Sullivan to resign because this "afforded him the opportunity to tell any prospective employers that he had resigned from his former position rather than being dismissed." The statutory framework

26 I have previously indicated that the action taken by Mr Muir against Mr Sullivan was based on provisions of the Act, and in particular Part 2.7 entitled "Management of Conduct and Performance." 27 By s 44 of the Act, the Director-General is empowered to issue guidelines dealing with misconduct and the taking of disciplinary action. Relevantly, ss 44 and 45 are in the following terms: 44 Issuing of procedural guidelines

(1) The Director of Public Employment may, from time to time, issue guidelines for the purposes of: (a) dealing with allegations of misconduct as a disciplinary matter, and

(b) the taking of disciplinary action with respect to officers under this Division.

(2) The Director of Public Employment may from time to time amend, revoke or replace the procedural guidelines.

(3) The procedural guidelines as in force from time to time must be made publicly available in such manner as the Director of Public Employment thinks appropriate.

(4) The regulations may make provision for or with respect to any matter for which the procedural guidelines can provide. In the event of any inconsistency between a provision contained in the procedural guidelines and a provision in the regulations, the latter is to prevail.

(1) The procedural guidelines must be consistent with the rules for procedural fairness.

(2) Without limiting subsection (1), the procedural guidelines are to ensure that: (a) the officer to whom an allegation of misconduct relates is advised in writing of the alleged misconduct and that the allegation may lead to disciplinary action being taken with respect to the officer, and

(b) the officer is given an opportunity to respond to the allegation.

(3) A formal hearing involving the legal representation of parties and the calling and cross-examination of witness is not to be held in relation to an allegation of misconduct and the taking of disciplinary action with respect to an officer.

(4) However, subsection (3) does not prevent the appropriate Department Head from: (a) conducting such investigations into an allegation of misconduct as the Department Head considers necessary, or

(b) conducting interviews with the officer to whom the allegation relates or with any other person in connection with the matter concerned, or

(c) taking signed statements from the officer or any such person. 28 The procedures for dealing with allegations of misconduct are set out in s 46. I should add for completeness that misconduct is defined in s 43 in a manner that, for present purposes, it is not necessary to refer to. S 46 is in the following terms: 46 Dealing with allegations of misconduct

(1) If an allegation is made to the appropriate Department Head that an officer may have engaged in any misconduct, the appropriate Department Head may: (a) decide to deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, or

(b) decide that it is appropriate to take remedial action with respect to the officer.

(2) After dealing with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the appropriate Department Head may, if the Department Head is of the opinion that the officer has engaged in any misconduct, decide to take disciplinary action with respect to the officer.

(3) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking.

(4) Even though the appropriate Department Head decides to deal with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the Department Head may, at any stage of the process: (a) decide to take remedial action with respect to the officer concerned, or

(b) decide to dismiss the allegation, or decide that no further action is to be taken in relation to the matter, or both.

(5) A decision under this section by the appropriate Department Head to take remedial action with respect to an officer does not, if it appears to the Department Head that the officer may have engaged in any misconduct while the remedial action is being taken, prevent the Department Head from dealing with the alleged misconduct as a disciplinary matter under this section. 29 It will be seen that under s 46(2) there is a reference to "disciplinary action". This is defined in s 42(1) and, again, it is not necessary to refer to that definition in any detail. 30 S 48 allows disciplinary action to be taken if an officer is convicted of a serious offence. S 48 is in the following terms: 48 Disciplinary action may be taken if officer is convicted of serious offence

(1) If an officer is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more, or is convicted elsewhere than in New South Wales of an offence that, if it were committed in New South Wales, would be an offence so punishable, the appropriate Department Head may: (a) decide to take disciplinary action with respect to the officer, or

(b) decide to take remedial action with respect to the officer.

(2) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking.

(3) A reference in subsection (1) to the conviction of an officer for an offence punishable by imprisonment for 12 months or more includes a reference to the officer having been found guilty by a court of such an offence but where no conviction is recorded. 31 The Director of Public Employment has issued procedural guidelines pursuant to s 44 of the Act. The guidelines are contained within a "personnel handbook" and, relevantly, are within Chapter 9 of that handbook. Appendix 9-1 deals with misconduct. 32 Under the heading "Purpose" the guidelines dealing with misconduct are said to be issued "for the purpose of dealing with allegations of misconduct as a disciplinary matter and the taking of disciplinary action against an officer for misconduct …." In cl 2 it is stated that if an allegation of misconduct is to be dealt with as a disciplinary matter, the relevant Department "must do so in accordance with the Procedural Guidelines. The Procedural Guidelines in relation to Misconduct are mandatory and legally enforceable." 33 In cl 7 entitled "Procedural Fairness", there is a statement that "throughout the disciplinary process, the principles of procedural fairness must be followed … the officer must be advised in writing of the alleged misconduct. This requires specific details to be put to the officer. The officer must also be advised that the allegation, if treated as a disciplinary matter, may, if proven, result in disciplinary action with a range of penalty options …." Cl 7 provides that the officer must be given an opportunity to respond to the allegation and if found to have engaged in misconduct "shall be given a separate opportunity to make representations in relation to any proposed disciplinary action to be taken." There is then a reference to s 46(3) of the Act. 34 Cl 13 deals with circumstances where a Department Head has concluded that an officer has engaged in misconduct and is, as a result, considering disciplinary action. The Department Head is required to consider a number of matters including "mitigating or extenuating circumstances if available at this stage" as well as the officer's employment history and general conduct history. 35 Importantly, cl 13.1 provides, in part, that "if the Department Head is of the opinion an officer has engaged in misconduct AND that disciplinary action may be appropriate, the officer must be notified in writing of that opinion and of the disciplinary action being considered, including the severest penalty." There is then a reference to a sample letter no 8 and to the provisions of s 45(3) of the Act. 36 There are a number of matters which must be stated within the "written notification" including the details of the misconduct, the disciplinary action being considered, an outline of "the previous employment matters (such as past remedial actions, warnings or discipline matters or alternatively previous satisfactory work history) to be taken into account". 37 Sample letter no 8 is intended to be forwarded to an officer where a Department Head is considering disciplinary action following a finding of misconduct. The letter specifically says that, before making a final decision on any disciplinary action, the Department Head would consider a number of matters including "outline the previous employment matters (such as past remedial actions, warnings or discipline matters or alternatively previous satisfactory work history) to be taken into account." This reinforces material contained in cl 13.1 to which I have earlier referred. 38 Appendix 9-3 of the guidelines refers to the manner in which serious offences are to be dealt with. Cl 4 provides that "prior to taking any disciplinary action the officer must have the opportunity to make representations in relation to any proposed disciplinary action" and there is a reference to s 48(2) of the Act. 39 By cl 11.2, where a Department Head has decided that disciplinary action is appropriate, the officer is to be notified in writing of that opinion and of the disciplinary action being considered. There is a reference to s 48(2), which requires an officer to be given an opportunity to make a submission in relation to any disciplinary action being considered. Cl 11.2 states that the written notification must include, among other things, an outline of "the previous employment matters, if any, to be taken into account." The applicant's case

40 In essence, the applicant focussed on the statutory framework within which Mr Muir dealt with Mr Sullivan and, in the alternative, relied on common law principles requiring that persons in the position of Mr Sullivan be afforded procedural fairness. In both cases, there was an assertion that there had been a failure to afford procedural fairness to Mr Sullivan. 41 In submissions, the applicant referred to three matters that were highlighted in the affidavit of Mr Muir, to which I have previously referred. These were an allegation that the applicant was dishonest in telling a police officer that his licence was at home when in fact it had been suspended, that he had been untruthful in the disciplinary investigation by giving false reasons as to why he had failed to notify departmental officers that his driver's licence had been suspended and that he had recorded false information in departmental records as to who had driven the departmental vehicles. These were matters, it was said by the applicant, that were never drawn to Mr Sullivan's attention so that Mr Sullivan was denied any opportunity of considering them and making submissions about them. 42 It was said by the applicant that these three matters all went to misconduct and that Mr Muir had taken them into account when concluding that Mr Sullivan had engaged in misconduct. 43 I should observe at the outset that I reject the applicant's submission that these three matters constituted misconduct in the mind of Mr Muir when determining that Mr Sullivan had been guilty of misconduct. The only evidence before the Court is the correspondence between the parties and the affidavit of Mr Muir. I have previously expressed the opinion that Mr Muir's affidavit, in referring to these three matters specifically indicated that they were matters which he took into account in determining what disciplinary action should be taken against Mr Sullivan consequent upon the conclusion that he had previously reached that Mr Sullivan had engaged in misconduct. The misconduct is that which is specifically referred to in the letter of 16 February 2009. That is, that Mr Sullivan drove a vehicle on 27 July 2008 whilst there was present within his blood a mid-range prescribed concentration of alcohol, that he failed to notify his manager that his driver's licence had been suspended and that between 27 July 2008 and 30 September 2008 he had driven a department vehicle on ten separate occasions while his driver's licence was suspended. 44 Accordingly, I reject this aspect of the applicant's case. However, the applicant also asserted that these three matters were taken into account by Mr Muir when he determined what disciplinary action should be taken against Mr Sullivan. There can be no doubt on the evidence that this is correct. Furthermore, the evidence is clear that in determining what disciplinary action should be taken, Mr Muir also took into account previous employment matters, which I have earlier described in considering Mr Muir's affidavit. 45 None of these matters were, on the evidence, brought to Mr Sullivan's attention prior to Mr Muir determining what disciplinary action should be taken. In terms of the misconduct matter, there has been, in my opinion, a clear breach of cl 13.1 of the Procedural Guidelines issued under the Act in that the written notification to Mr Sullivan failed to outline previous employment matters that would be taken into account by Mr Muir. Furthermore, these facts would, prima facie, indicate that there has been a breach of s 46(3) of the Act in connection with the misconduct matter. An officer cannot be said to have been given an opportunity to make a submission in relation to disciplinary action that the Department Head is considering taking if he or she has no prior knowledge of the matters that the Department Head considers should be taken into account when making a determination about the appropriate disciplinary action to be taken. I shall refer to this aspect later in these reasons for judgment because there was a contrary submission put by the respondent. 46 The applicant made submissions to the same effect in connection with the serious offence matter. That is, in determining what disciplinary action should be taken Mr Muir had failed to provide any written notification (or indeed any other form of notification) to Mr Sullivan about the matters that he was intending to take into account in determining what disciplinary action was appropriate. These included all of the matters referred to above in connection with the misconduct matter. Accordingly, it was submitted that there was a breach of cl 11.2 of Appendix 9-3 dealing with criminal offences and of s 48(2) of the Act, which is in the same terms as s 46(3). 47 It was submitted by the applicant that these were fundamental breaches of the statutory regime including the Procedural Guidelines issued pursuant to it and that they resulted in any action taken in consequence of those breaches being characterised as an invalidity and having no effect. 48 It was said that the same principles applied at general law. The respondent's submission

49 In essence, the respondent eschewed any relevance concerning that much of the applicant's case as was directed to the finding of misconduct and the disciplinary action taken with respect to it. This is because, although Mr Sullivan was directed to resign consequent upon the finding of misconduct and consequent upon his conviction for a serious offence as contained in both letters of 9 April 2009, the termination of his employment was grounded only on a failure to resign following a direction to resign based upon the conviction for a serious offence. Accordingly, it was only necessary to consider that matter and the relevant provisions of the Act, namely s 48 and the Procedural Guidelines, which were issued in connection with that section. 50 The applicant submitted in reply that it was important in the interests of Mr Sullivan that both sets of procedures be the subject of a declaration because both involved the purported taking of disciplinary action and therefore impacted upon (or in the case of the misconduct matter could conceivably impact upon) Mr Sullivan's continued employment. I agree with this submission and, in my opinion, it is appropriate that the Court deal with the application made by the applicant for a declaration in connection with both matters, each the subject of the letter of 9 April 2009. 51 I have rejected the respondent's submission that the only matter that needs to be taken into account is that which concerns the serious offence and which is the subject of s 48 of the Act. I should, however, refer to the respondent's submission with respect to s 48. This submission focussed on its provisions and compared them with the provisions of s 46. S 46 contains specific reference to the Procedural Guidelines in sub-ss (1), (2) and (4). There is no reference to the Procedural Guidelines in s 48. Thus, it was submitted, there was no intention that the Procedural Guidelines should apply to disciplinary action taken upon conviction for a serious offence under s 48. This was said to be the case when considering either the decision to take disciplinary action or a determination of what disciplinary action was appropriate. 52 There are, in my opinion, several answers to this submission. Firstly, the attempt to distinguish the provisions of s 46 cannot be made out. The references to the Procedural Guidelines in s 46 that occur in sub-s (1), (2) and (4) are confined to a decision to deal with an allegation as a disciplinary matter and the processes undertaken in determining whether misconduct has been established. The reference to Procedural Guidelines is confined to the determination of whether the allegations of misconduct are made out. 53 What is common to both ss 46 and 48 are the provisions of sub-ss (3) and (2) respectively. They are both in identical terms. They both refer to the giving of an opportunity to the officer to make a submission in relation to the type of disciplinary action that is considered being taken against him or her. Certainly, there is no reference to the Procedural Guidelines in either sub-section. However, the fact that each of them is in identical terms and both of them refer to the circumstances in which there is to be a determination of what disciplinary action is to be taken is a sufficient basis for rejecting any approach to construction as contended for by the respondent. It is perfectly reasonable that there should be a reference to Procedural Guidelines in determining whether there is misconduct, and perfectly reasonable that there should be no such reference in circumstances where an officer has been convicted of a serious offence. It is the fact of conviction that ipso facto creates the basis for the taking of disciplinary action under s 48. 54 Furthermore, I reject any submission that, in some way, the Procedural Guidelines are not intended to apply to the circumstances in which disciplinary action is taken under Part 2.7 of the Act. Specifically, s 44(1)(b) describes one of the purposes of the issue of such Guidelines as being to deal with "The taking of disciplinary action with respect to officers …." The whole tenor of the reference to the Procedural Guidelines as contained within ss 44 and 45 and as contained within the Guidelines themselves, is that they are intended to apply and be adhered to with respect to all of the processes and procedures set out in Part 2.7 of the Act. I have already referred to such parts of the Procedural Guidelines as deal with the manner in which a determination is to be made as to what disciplinary action is appropriate to be taken consequent upon a finding of misconduct or conviction for a serious offence. 55 In any event, it seems to me that even without the application of any Procedural Guidelines, the provisions of ss 46(3) and 48(2) mandate that an officer be informed of the important matters that a Department Head considers relevant in determining what disciplinary action is to be taken. Unless and until an officer is given "an opportunity" to make "a submission" in relation to disciplinary action that the Department Head is considering taking, the provisions of these sub-sections could not be complied with. An officer could not, in my opinion, be said to have been given such an opportunity to make such a submission in relation to such a matter unless he or she was appraised in general terms of the types of matters that the Department Head determined would be significant in considering what disciplinary action should be taken. 56 The respondent submitted that, in any event, the provisions of ss 46(3) and 48(2) had been complied with. The respondent pointed to the contents of the letters of 16 and 17 February 2009, to which I have previously made reference. In summary, in connection with each matter, Mr Sullivan was informed that Mr Muir would consider a number of matters before making a final decision on what disciplinary action would be taken, being the investigation report in the case of s 46 or the conviction in the case of s 48, and in each case the objectives of Part 2.7, the previous employment matters such as past remedial action, warnings or discipline matters or, alternatively, satisfactory work history, conduct and service reports and personnel file and any submission made. In the case of the s 48 matter, there was also a reference to the transcript from the criminal proceedings as being something that Mr Muir would consider. 57 It was said that these references rendered sufficient compliance with these sub-sections and that they afforded Mr Sullivan an opportunity to make a submission in relation to the disciplinary action that Mr Muir was considering taking. 58 In my opinion, having regard to the totality of the evidence in the proceedings and in particular Mr Muir's affidavit, it could not be said that Mr Sullivan had been given an opportunity to consider those matters that Mr Muir considered were significant in determining the disciplinary action to be taken against him. This is particularly so given the assessment that the behaviour which Mr Sullivan was said to have exhibited was a more determining fact than the criminal conviction. I have already referred, in [18] and following, to the several matters that Mr Muir considered were significant and there is further reference in [15] and [16] of my reasons for judgment. 59 Although in the case of the s 48 matter Mr Muir referred in his letter to the transcripts from the criminal proceedings, this does not contain sufficient particularity to alert Mr Sullivan to the matter which is referred to in [20] above, namely the false information given to the police officer by Mr Sullivan. The same comment applies to the conclusion reached by Mr Dwyer that Mr Sullivan was dishonest in the explanation which he had sought to give to the effect that his supervisor had not been available and could not be informed about the suspension of his driver's licence. This is referred to in [22] above. None of the documentation which Mr Sullivan was given and none of the references in the interview that he had with Mr Muir could have alerted him to the significance of these matters in terms of the disciplinary action that Mr Muir intended taking. The same comment might be made with respect to the prior personnel records of Mr Sullivan although, on one view of it he could have sought that information from his personnel file. On balance, the particularity with which Mr Muir considered Mr Sullivan's prior personnel matters was not adverted to in a sufficient manner so as to alert Mr Sullivan that they had assumed significance in the mind of Mr Muir in determining what disciplinary action should be taken. 60 These observations are confirmatory of the views which I have earlier expressed at [44] to [46] above. 61 It follows that I conclude that in each of the matters there has been a failure by the respondent to comply respectively with the provisions of s 46(3) and s 48(2) of the Act. Failure to afford procedural fairness

62 As an alternative argument, the applicant submitted that a decision to take disciplinary action in the circumstances of these proceedings was subject to the requirements of procedural fairness. This was because the power afforded to the respondent had the potential to, and did in fact, impact adversely on Mr Sullivan's rights and interests. Such a principle is non-controversial. See, for example, the joint judgment of McHugh, Gummow and Hayne JJ in Jarratt v Commissioner of Police (NSW) [2005] HCA 50; (2005) 224 CLR 44 at [51] and following. 63 In Jarratt, Gleeson CJ said: Where Parliament confers a statutory power to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, Parliament is taken to intend that the power be exercised fairly and in accordance with natural justice unless it makes the contrary intention plain. (At [26]). 64 The applicant submitted that the rules of procedural fairness and natural justice applied to Mr Sullivan's circumstances so that he needed to be fully apprised of the matters that would be considered by Mr Muir in determining what disciplinary action would be taken, that he was not so apprised and that he was thereby deprived of the opportunity of making submissions about them. 65 The respondent sought to argue that Part 2.7 of the Act was, in effect, a code and that this displaced any common law principles that might otherwise apply to the circumstances that affected Mr Sullivan. To the contrary, the provisions of Part 2.7 are redolent with references to procedural fairness, especially read in conjunction with the Procedural Guidelines. Far from displacing any common law notions of natural justice and procedural fairness, Part 2.7 embraces such principles. 66 These matters were also addressed by the Full Court of the Federal Court of Australia in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576. 67 At [30], the Full Court (Northrop, Miles and French JJ) said: Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. 68 Earlier, their Honours discussed in some detail the type of matters which would be taken into consideration by a decision-maker, the existence of which ought to be communicated to the person or entity likely to be adversely affected by the decision. These matters are discussed generally at [28] and [29].

69 It is sufficient for present purposes to observe that consistent with these general principles, Mr Muir should have alerted Mr Sullivan in general terms of the matters pertaining to his asserted dishonest representation to the investigating police officer, his untruthfulness concerning the failure to notify his supervisor of the suspension of his driver's licence and the recording of false information on official departmental records, notwithstanding that this last matter had been the subject of discussion in the interview which Mr Muir had conducted with Mr Sullivan. Furthermore, Mr Sullivan should have been informed in at least some general terms about Mr Muir's concerns with respect to his pro-social interpersonal skills and the fact that he considered his behaviour was more significant than the criminal conviction. Conclusion

70 Having regard to the conclusions that I have reached, and which I have set out in rejecting the respondent's submissions, I find that the respondent failed to sufficiently inform Mr Sullivan of the matters that he ultimately took into account in determining to take disciplinary action against him with the result that Mr Sullivan was deprived of the opportunity to make submissions in relation to that disciplinary action as contemplated by s 46(3) and s 48(2) of the Act. I conclude that these provisions of the Act have thereby been breached and that concurrently there has been a denial by the respondent to afford procedural fairness to Mr Sullivan. 71 A breach of the Act of this kind will result in the decision being characterised as invalid. (See Public Employment Industrial Relations Authority v Scorzelli [1993] NSWIRComm 129; [1993] NSWIRC 48; (1993) 49 IR 169.) The breach of the principles of procedural fairness which I have identified will result, at law, as the decisions being characterised as an invalidity. (See Jarratt). 72 The result, therefore, is that each of the decisions to take disciplinary action as contained within Mr Muir's letters of 9 April 2009 are invalid as is the requirement that Mr Sullivan be directed to resign contained within Mr Muir's letter of 30 April 2009. Of course, these decisions have no impact upon the finding of misconduct nor the fact of conviction for a serious offence. Whether and to what extent Mr Muir proceeds further to take any disciplinary action against Mr Sullivan based on the finding of misconduct, and/or based on the fact of a conviction for a serious offence will be a matter entirely for Mr Muir. Costs

73 The question of costs was not argued before me and I will reserve costs in all the circumstances. However, unless there are compelling reasons adduced by either party, one might contemplate that the usual costs orders would follow. I shall reserve costs in the event that the parties are unable to reach sensible agreement about this matter. Orders

74 I make the following orders: 1. The purported directions to resign from the public service given by the respondent to Philip Sullivan by letters dated 9 April 2009 and the purported dismissal of Mr Sullivan from the public service communicated by Mr Muir by letter dated 30 April 2009 are declared invalid and of no effect. 2. Costs are reserved with liberty to apply.

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.