Corrective Services NSW and Fraser [2015] NSWIRComm 1

Background

1. At the time of his dismissal the respondent had been employed by the appellant for approximately 26 years. During his employment, the respondent worked as a First Class Correctional Officer at Port Macquarie Police Cells.
2. Following consideration of allegations concerning inappropriate conduct against the respondent involving a female inmate, a formal investigation commenced in February 2013 into allegations that the respondent may have engaged in misconduct within the meaning of s 43 of the Public Sector Employment and Management Act 2002 (the PSEM Act).
3. The respondent was subsequently advised by letter that allegations of misconduct relating to incidents at Taree Court "on or about May 2012" were to be dealt with as a disciplinary matter under the PSEM Act.
4. On 28 June 2013, the respondent was advised the appellant had formed the opinion that he, the respondent, had engaged in misconduct as follows: 1. That you engaged in inappropriate sexual conduct with inmate Natasha Slack (sic). 2. That you behaved in an unacceptable, inappropriate and unprofessional manner towards inmate Slack (sic).
5. Specifically, as to the first charge, on 11 May 2012 Ms Slacke was attending Taree Court and was in the holding cells waiting to be taken back to the Correctional Centre where she was detained. It was alleged against Mr Fraser that on that day: 1. He befriended Ms Slacke and became increasingly suggestive towards her, asking her twice to: "Show me your boobs" 1. and saying further words to the effect: "You have a nice butt" and "You are too good looking and too nice of a person to be locked up here." 1. When Mr Fraser was placing handcuffs on Ms Slacke he reached through the cell door with his right hand and touched Ms Slacke on her left breast; 2. He then said to Ms Slacke: "I would like to do more with you and with these cuffs" 1. As Ms Slacke was stepping up into a transport truck to return her to the Correctional Centre the respondent placed his right hand on her left buttock and dug his fingers into her buttocks.
6. Harrison DP found that the respondent was not guilty of the misconduct alleged against him in the first charge.
7. The second charge of misconduct was based on a statement by Ms Slacke concerning an incident that was said to have occurred on 7 July 2012 as follows: 10. I remember after getting out of gaol a couple of days after 7 July 2012 that I had to appear at Taree Local Court. I was standing out the front of the court house having a cigarette on a brown bench seat and Officer Fraser came up to me. He was in his uniform and he sat beside me. He said, "I have been looking you up on the computer system to find out where you were going to court next. I am trying my hardest to make sure that I would be at the court house on the days you went to court so I could see you again:. 11. I said, "What for I've got a man even though he's locked up". He said, "Yeah, there you go see he's locked up, give us your phone number". I said, "Nah, I'm not giving you my number". He said, "I go up to Kempsey sometimes, I could take you out to lunch or dinner". I said, "Nah, I'm not going to do that, I'm faithful even though he's locked up". Officer Fraser said, "What is happening today at court", I said, "It's just an adjournment". 12. Officer Fraser then lent in and gave me a kiss on the left cheek and placed his left hand on my right shoulder. Right before he kissed me on the cheek he looked around as if to see if anyone was watching and as though he knew he shouldn't be doing it. He then walked away.
8. In relation to the second charge, Harrison DP found it had not been made out. The appellant did not pursue the matter on appeal. That leaves for consideration on appeal whether Harrison DP erred in relation to his findings about what was alleged to have occurred on 11 May 2012.
9. We turn to what was alleged to have occurred on 11 May 2012 and how it came to be the subject of an investigation by the appellant.
10. As we have already noted, the respondent was a first class Correctional Officer and had been since 1990. He was part of the Port Macquarie Court Escort Security Unit. Steven White was another first class Correctional Officer with 22 years' service, also part of the Port Macquarie Court Escort Security Unit. Leanne Matthews was a casual Court Security Officer based at Port Macquarie and former police officer.
11. Mr Fraser, Officer White and Officer Matthews were together on 11 May 2012. Their tasks that day included taking two inmates from Port Macquarie cells to Taree for court proceedings and return. One of the inmates was Natasha Slacke.
12. In a statement tendered in evidence before Harrison DP, Ms Slacke stated: To the best of my recollection I was attending court on that date and I was in the holding cells at Taree. I remember Officer Steven Fraser being very friendly to me that day. At the start I asked him for a pen and paper and he even gave me cigarettes and stuff. While I was in the holding cell. The holding cell was the cell immediately beside the stairs that go up to the court. We had a general conversation and I asked him how long has he been in the job. I can't remember exactly the words he said but it was along the lines of "I shouldn't be talking to you because I have been in trouble for stuff like this before." I said, "Like what sort of stuff"? And he said, "For being inappropriate towards females." He was getting more suggestive towards me as the day went on by that I mean he kept coming up to me more than I thought he should not have. At some stage of the day he came up to the cell door and said, "Show me your boobs". He said this about two times. He also said, "You have a nice butt and you was too good looking and too nice of a person to be locked up here". I recall when he was placing the hand cuffs on me that day at the cells, I put both my hands through the cell door hatch and he placed the cuffs on me. He let go of them and reached through with his right hand and touched me on the left breast. At that moment I saw a female correctional officer on my right coming around the corner and Officer Fraser quickly withdrew his hand from the hatch in the cell door. I could tell that the female officer saw that something was going on by the way she looked and then turned to have closer look. She did not say anything and turned to walk back up the corridor. I remember him saying something like, "I would like to do more with you and with these cuffs". I recall saying, "I bet you would you dirty cunt". When I said this it was with a nervous giggle he kind of laughed back. He kept staring at me which continually made me uncomfortable. It made me feel bad and I pulled away. I felt helpless and shameful because he is an officer and in charge. Officer Fraser walked quickly away to join the female officer. The tone of voice he used when he said these words to me was of a normal sounding conversational tone that only we could hear. I remember him returning to talk to me later but the female officer kept following him and watching what he was doing. Later he came and got me to get on the truck to go back to the Mid North Coast Correctional Centre. I walked with him to the side of the truck and went to get on. I ducked my head and stepped and I felt his right hand on my left buttocks. I felt his fingers digging into my buttocks, in fact he was grabbing it. It was unnecessary as I could easily get into the truck and have never needed help before. When he did this I turned my head and glared at Officer Fraser. I was disgusted as if how dare you take advantage of me. At no stage did I give him permission to touch me or ask for any assistance. The touching of my buttocks by this person made me feel offended and dumbfounded.
13. In a statement tendered in evidence before Harrison DP, Officer Matthews stated: On that day I was working 0930hrs to 1515 hrs at the Taree court cells. During the shift I was performing duties as court security. About 1510 hrs, we proceded to the holding cell area for the purpose of cuffing the inmates prior to them boarding the escort vehicle. Officer Fraser walked directly to the female cell which required him to walk past the male cell. I stopped at the male cell and proceeded to cuff a male inmate where he remained in the cell, I then walked down the corridor and turned the corner to the right where First Class Correctional Officer Steven Fraser was attending the holding cell occupied by inmate Natasha SLACKE. As I walked toward the holding cell I heard Officer Fraser say, "see what you do to me". I then observed Officer Fraser to be on his knees with both his arms in the door slot past his elbows. Despite Officer Fraser being aware of my presence Officer Fraser continued to keep his arms in the slot up to his elbows and continue cuffing inmate SLACKE. This seemed unusual to me as I have never seen anyone else apply cuffs to an inmate in this manner before nor have I ever applied them myself in this way. My first thought as I saw this was that Officer Fraser was behaving inappropriately with a female prisoner. To the best of my recollection I remained present until we left the area together. For the remainder of my shift each time Officer Fraser attended the holding cell area I accompanied him as I had concerns he may act inappropriately. We then proceeded to load the inmates onto the escort vehicle which was located in the van dock as it is known. We then placed the male inmate on the escort vehicle and I then left Officer Fraser at the vehicle whilst I went to the holding cell to retrieve inmate SLACKE. Officer Steven White and I walked Inmate SLACKE to one of the side compartments and Officer Fraser was already standing there waiting. I remained within a meter behind inmate SLACKE as she walked towards Officer Fraser who was standing at the open door of the compartment. Inmate SLACKE turned to step up and into the compartment and as she did she placed her foot up on the step. At this point I observed Officer Fraser to move his hand in an under and upward direction at a quick speed appearing to be grabbing at the buttocks area possibly the vaginal area of inmate SLACKE. My view was obstructed by something that prevented me actually seeing the connection however my suspicion is that a connection was made. I observed Officer Fraser giggle as this occurred. This made me feel angry and pissed off that Officer Fraser would behave inappropriately whilst I was watching. I went home from work that day feeling disgusted and made contemporaneous notes which I now produce as part of me (sic) statement.
14. Mr Fraser denied any misconduct and asserted those that were involved in persecuting him did so falsely and had fabricated their version of events. He believed there was a "vendetta" against him arising from an assault by an officer, Mark King, on Mr Fraser in October 2012. Apparently, Mr King was suspended from duty over the assault and it was Mr Fraser's contention that senior officers within Corrective Services, including Senior Assistant Superintendent Sundin and Senior Assistant Superintendent Leanne Cook (both of whom were involved in aspects of the investigation that was carried out into Mr Fraser's conduct), were pursuing him in order to "assist Officer Kings endeavours to return to Port Macquarie cells from suspension".
15. Officer White was present at the time of the alleged "buttocks incident". He said in his statement in evidence before Harrison DP: On this day, we were taking inmates from Taree court cells back to Port Macquarie Police Cells. Steve had gone to the cells with Leanne to cuff the inmates and he brought the male inmate first. The male inmate was placed into the middle pod of the prison van. I walked the female inmate with Leanne and Steve Fraser was already at the truck. When we got her to truck, Steve was standing between the front and middle pods. Leanne stopped at the front of the truck. I walked towards the rear and stood watching as the inmate boarded the van. Steve did not touch her as she boarded the van. As she stepped up into the van I saw Steve step forward and shut the wire inner door and I closed and locked the solid outer door.
16. Andrew Sneddon, a senior assistant superintendent with the Investigations Branch of the appellant, carried out the investigation into the allegations of misconduct by the respondent. His investigation report was in evidence. Mr Sneddon concluded that there was sufficient evidence to sustain the allegations against Mr Fraser.
17. It is relevant to describe the process by which Mr Fraser's alleged misconduct came to be the subject of an investigation. The trigger for the investigation was a conversation Officer Matthews had with two other officers on 26 June 2012, those officers being Officer Emma Stewart and Senior Correctional Officer Peter Stace. Officer Matthews referred to the conversation in her statement: In June 2012 whilst I was working at the Taree court cells I was having a conversation with Officer Emma Stewart and SCO Peter Stace in the office area and Officer Frasers name was mentioned. I said, "if I tell you something, can this stay here". SCO Stace said, "that depends on what you tell me". I then directed my conversation at Officer Stewart because she is a female and I wanted to make her aware of Officer Frasers behaviour with female inmates and to keep an eye on him. I felt I needed to unload what I had witnessed and tell someone as I was distressed by what had occurred.
18. It was Officer White's evidence that in June 2012 (no specific date was given) he was in a tea room in the office at Port Macquarie when he overheard a conversation between SAS Leanne Cook and Officer Stewart that Mr Fraser had "touched up" a female inmate at Taree when he was working with her. Ms Slacke's name was mentioned as the inmate concerned. Officer White checked to see if he was on duty on 11 May 2012 and discovered he was. He described in his oral evidence that what Officer Stewart said as "bullshit" but said nothing about his opinion to any person within Corrective Services. It is to be noted that SAS Cook was party to the conversation with Officer Stewart, but there was no evidence she followed up on what Officer Stewart had told her. Neither SAS Cook nor Officer Stewart gave evidence in the proceedings.
19. It was not until 24 October 2012 that Officer Stewart submitted a written report to management in which she recounted the conversation with Officer Matthews on 26 June. In her report Officer Stewart stated: At approximately 12.00pm on 26/June/2012 I was carrying out my duties as Taree Court Officer when the following incident occurred: Whilst performing my duties at Taree court I was having a conversation with TSCO Leanne Matthews and SCO Peter Stace during the conversation with Officer Matthews she told me that on a previous date she had witnessed inappropriate behaviour from Officer Steven Fraser towards a female inmate. Leanne informed me that Officer Fraser was down on his knees with his arms fully in the hatch and appeared to be laughing with the inmate. Leanne said whilst they were placing the inmate on the truck she witnessed Officer Fraser grab the female inmate on the buttocks, the female then turned and laughed at Officer Fraser. I then said something like, I cannot believe Fras is acting like that. I cannot recall what Officer Stace said during the conversation.
20. Officer Stace provided a statement to the investigator in January 2013. However, he was unable to recall the conversation of 26 June 2012.
21. Officer Stewart's report, it is to be noted, was lodged the day after Officer King was suspended from duty as a consequence of the altercation with Mr Fraser. This was the basis of Mr Fraser's allegation that friends of Officer King within the Service had plotted to have Mr Fraser removed and Officer King reinstated at Port Macquarie.
22. Officer Stewart's report led SAS Sundin on 1 November 2012 to recommend to the General Manager, Court Escort Security Unit, that the incident be reported to the Professional Conduct Management Committee for consideration as to whether there should be a formal investigation. SAS Sundin attached to his reports a number of previous reports relating to past behaviour by Mr Fraser. These included the following: 1. On 29 June 2001 a Letter of Warning was issued to Mr Fraser designed to persuade him to be truthful in his future professional dealings. This followed a finding in an internal review that Mr Fraser had given untruthful evidence to a parole board hearing. Mr Fraser denied he was untruthful. 2. Officer Stewart made a complaint regarding an incident that was alleged to have occurred on 3 May 2010. It was alleged that whilst Officer Stewart was seated and had her legs on a chair, Mr Fraser lifted her pants and rubbed her left leg. When challenged by Officer Stewart as to what he was doing, Mr Fraser was said to have replied that he was just checking to see if she had hairs. According to Officer Stewart this caused her shock and embarrassment. Mr Fraser stated Officer Stewart's complaint was a complete fabrication. 3. Allegations by a former female inmate that in January 2010 the respondent sexually harassed an inmate whilst she was showering by looking at her and making inappropriate comments to her. It was alleged that the respondent returned to a showering facility whilst the inmate was getting undressed, causing the inmate to place her hands over her breasts. It was in that context the inmate complained about Mr Fraser's breach of her privacy and the inappropriateness of his comments to the effect: "Don't worry I've seen them before" referring to her breasts. 4. On 8 June 2010 the respondent was issued with a second warning letter by Don Rodgers, A/Deputy Commissioner. Mr Rodgers regarded the respondent's conduct in the shower incident as sexual harassment of the inmate. The letter also referred to a traffic incident in which the respondent was involved and an incident in January 2010 where the respondent was alleged to have become "so aggressive towards staff that they feared for their safety". The appellant regarded the respondent's behaviour as serious and transferred him the Mid North Coast Correctional Centre for a period of 12 months. The respondent was placed on a Performance Management Plan for six months. The standards of behaviour that the respondent was expected to observe under the Plan relevantly included: Use respectful language towards women and to refrain from any sexualised comments, sexual innuendo and banter; and not to touch female staff members (or female offenders) or accidentally brush against them. The letter stated: In addition to this I warn you that I expect your attitude towards senior officers of this service to improve and your inappropriate behaviour towards women to cease immediately. Should I receive another report detailing any aggressive and inappropriate conduct by you, then I will take disciplinary action against you. 1. In early February 2011, Mr Fraser entered the staff meal room and addressed all present (including females) with the comment: "Hey lesbians". This resulted in a third warning letter being given to Mr Fraser on 27 July 2011. In the letter it was stated: It concerns me that despite evidence being put to you that two officers had heard the comment and the officer who you directed the comment at spoke to you specifically about what you had said to her, you continued to deny that the above occurred. The comment "Hey lesbians" is discriminatory and unlawful and in breach of the Anti-Discrimination Act 1977.

Decision at first instance

1. The Deputy President at [8] described the two main allegations of misconduct made against Mr Fraser as being: (1) On 11 May 2012 whilst in the process of putting handcuffs on Ms Slacke he touched her left breast. (2) On 11 May 2012 whilst Ms Slacke was being placed in transport to convey her from Taree cells to Port Macquarie he groped her buttocks.
2. The Deputy President described the first of these allegations as the "handcuffing allegation" and the second as the "transport allegation". A further allegation that Mr Fraser had inappropriate communications with Ms Slacke, including a request that she "show him her boobs" was described by his Honour as "undeveloped allegations".
3. It is evident from the early paragraphs of the Deputy President's decision that his Honour had serious misgivings about the strength of the appellant's case. For instance, his Honour noted at [17] that Officers Stewart and Stace were not called to give evidence; at [18] his Honour observed that Mr Sneddon confirmed that Mr Fraser offered the defence that the altercation with Officer King was behind the accusation, however, he had refused to investigate this or pursue that line of enquiry as he considered it a separate matter; and at [20] to [21] stated: [20] There are a number of matters which give rise to concern over the investigation in addition to the failure to examine a line of defence offered by Mr Fraser. The explanation given is that Officer White was not identified in the brief received from Manager of Security, Brian Cullen, and Officer Matthews told him that Officer White did not directly see anything. [21] The matters of concern are: (1) Failure to interview Officer White who was a direct participant; (2) Affording inappropriate weight to the advice from Officer Matthews that she did not actually see anything but was only suspicious; (3) The interview of Officer Emma Stewart, who was not present, on the accuracy of any of the allegations; (4) Failure to specify the conduct alleged; (5) Finding that allegations of misconduct were sustained without any reasoning or consideration of credibility; (6) Failure to undertake any sort of investigation into the defence offered by Mr Fraser; (7) The approach to Ms Slacke, three days prior to her preparing her statement for the investigation, informing her that the investigator was aware of inappropriate touching and behaviour toward her. This approach was not an open enquiry of Ms Slacke and as such carries the difficulty of being suggestive to her.

Grounds of appeal

1. The grounds of appeal were as follows: 1. The Deputy President erred in not finding established the key allegations of misconduct against the respondent, that on 11 May 2012: 1. Whilst putting handcuffs on a female inmate at Taree Court cells, the respondent inappropriately touched the female inmate on her left breast; and 2. Whilst the female inmate was stepping into a transport vehicle to convey the female inmate from the Taree Court cells to Port Macquarie, the respondent inappropriately grabbed the female inmate's buttocks. 1. The Deputy President erred in not taking into account, or giving sufficient weight to numerous material facts relating both to factual matters and to issues of credit in respect of witnesses. 2. The Deputy President erred in discounting from the assessment of facts and of credit of the respondent the tendency and/or propensity evidence (giving rise to a concern of a pattern of inappropriate behaviour towards females by the respondent) relating to: 1. The complaint by another female inmate of sexual harassment by the respondent; 2. The express inclusion in a prior Performance Management Plan for the respondent of a specific area of concern being "inappropriate behaviour towards female inmates, offenders and staff"; and the requirement that the respondent not touch female staff or inmates or accidentally brush against them; 3. The incident shortly after the completion of the Performance Management Plan whereby the respondent entered the staff meal room and addressed all present (including females) with the comment, "Hey lesbians", which had the Performance Management Plan still been in operation, would have breached the directive that the respondent "use respectful language towards women and to refrain from any sexualized comments, sexual innuendo and banter"; 4. The incident relating to the complaint by a female officer involving inappropriate touching and comments. 1. The Deputy President erred in finding that the complaint by the female officer, Officer Stewart, was never raised with the respondent and that he had no opportunity to respond to that complaint. 2. The Deputy President erred in finding a letter of warning that had previously called into question the truthfulness of evidence by the respondent at a parole board hearing was irrelevant to the assessment of the respondent's character and credit. 3. The Deputy President erred in not taking into account, or giving sufficient weight to, the changed accounts of the respondent in relation to the "Hey lesbians" incident from one of denial to one of admission in the assessment of the respondent's character and credit. 4. The Deputy President erred in failing to give adequate reasons for preferring the credit of Mr Fraser and Officer White over the evidence of Inmate Slacke and Officer Matthews. 5. The Deputy President erred in finding that the evidence of Officer Matthews lacked substance. 6. The Deputy President erred in finding the internal investigation to be "fatally flawed" for the reasons given.

Leave to appeal

1. The appellant submitted leave to appeal should be granted for the following reasons: 1. The central issue the Full Bench is asked to consider in this appeal is whether the findings of fact in relation to serious misconduct involve sexual harassment of a female inmate were wrong or not reasonably available on the evidence. 2. If, as is contended by the appellant, there is a substantial basis upon which to conclude that such a contention was made out, then consistent with past authority, there is a significant basis for the grant of leave in order to ensure the proper administration of justice. 3. The grant of leave to appeal to ensure the proper administration of justice in the public interest.
2. In its narrative on leave, the appellant submitted: In the Appellant's Outline of Submissions, the Appellant sets out a substantial basis upon which to conclude that it was not reasonably open to the Deputy President to absolve Mr Fraser of two serious allegations of misconduct. The appeal thus raises significant issues as to the proper administration of justice in this jurisdictional area and requires grant of leave in the public interest. The case also raises serious issues concerning the lack of adequate reasons to explain why the Deputy President made key forensic decisions and why he omitted to make any reference to evidence of significant probative value. In this context "probative value" of the relevant evidence means the extent to which that evidence could rationally affect the assessment of the probability of the existence of facts in issue. The key facts in issue were whether serious allegations of misconduct were proven to the requisite degree.
3. The respondent opposed leave being granted. He contended the appeal merely raised questions of a factual nature. It was submitted the decision of the Deputy President involved a fairly unremarkable application of settled principles relevant to a finding of fact involving an allegation of serious misconduct upon which an employer intended to rely in dismissing an employee from employment. The preference for the evidence of the respondent and Officer White over that of Inmate Slacke was really unexceptional given the matters to which the Deputy President referred. There is no basis for appellate intervention where the findings made could not be said to be reasonably open nor has 'clear error' been demonstrated. The application for leave to appeal and the appeal should be dismissed.

The appellant

1. The appellant's case was that the Deputy President failed to give reasons or adequate reasons for his decision and was led into error on a number of fronts. The appellant contended the Deputy President made findings of fact that were not reasonably open to make and did not consider relevant matters pertaining to both fact and credit.
2. The appellant submitted that the decision under appeal was not one of a discretionary nature of the kind considered in House v R [1936] HCA 40; (1936) 55 CLR 499, but rather involved the consideration of the question whether the dismissal was harsh, unreasonable or unjust in the circumstances, which involved mixed issues of fact and law, rather than the exercise of discretion per se: see Humphries at [82]; Burge at [4], citing Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151; 88 IR 202 at [181] to [182]; and Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at [59]. As such, the appeal is an appeal stricto sensu: see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [70].
3. In Humphries at [83], the Full Bench considered the relevant principles to be applied on appeal in circumstances involving mixed issues of fact and law may conveniently be adopted from the decision of the Full Bench in Burge at [7]: The general principle is that an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge; in deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusions of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it: Warren v Coombes (1979) 142 CLR 531 at 551. And, in addressing error, an appellate court should not interfere with the trial judge's conclusions on facts unless it is of the opinion that they were not reasonably open (or were clearly wrong) on the evidence: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 107; Autobake Pty Ltd v Budd (1986) 19 IR 18 at 25; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178; Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149 at 153-155; and Port Macquarie Gold Club Ltd v Stead (1996) 64 IR 53 at 59.
4. The appellant submitted the decision of the Court of Appeal in Brown did not in any way undermine the principles set out in Humphries.

The respondent

1. The respondent submitted that the Deputy President had correctly determined the dismissal was harsh, unjust and unreasonable. The Deputy President's findings in relation to the breast touching allegation were open to him on the evidence.
2. The Deputy President was correct to observe that there were significant difficulties in accepting Ms Slacke's version of events. The mere fact that the respondent was said to have touched her breast whilst a female officer was present was fairly described as implausible. The physical implausibility associated with the respondent having placed his hand through the hatch to the cell door whilst Ms Slacke's hands were handcuffed and outside the cell door was another difficulty posed with accepting her version of events.
3. The respondent's position was that there was no issue in the evidence about where the respondent's arms and hands were relative to the cell door. There was a significant issue about the plausibility of Ms Slacke's claim that her arms were outside the cell door when the incident occurred. Ms Slacke's evidence differed to that of Officer Matthews and the inconsistency raised in her evidence cast much doubt upon its accuracy.
4. It is relevant that Officer Matthews did not see the respondent touch Ms Slacke and contrary to her version of events, Officer Matthews said that the respondent handcuffed Ms Slacke whilst her arms were inside the cell. This discrepancy is significant because Officer Matthews' evidence was that the respondent had his arms inside the cell door. Ms Slacke's evidence was that when Officer Matthews appeared, the respondent quickly withdrew his hand from the hatch in the cell door. Accordingly, there was no 'concurrence' at all as to what happened when Officer Matthews arrived at the cell door. Ms Slacke's credit was impugned by the inconsistency of her evidence when compared with Officer Matthews' evidence.
5. What Officer Matthews said she heard the respondent say, "See what you do to me", is similar to what the respondent said, "Look see my hands, put your hands like this."
6. The absence of corroboration of Ms Slacke's version of what occurred, the implausibility of what was alleged to have been said and done by the respondent and the respondent's denial, was a sufficient and sound basis to find that the allegation was not proven, especially having regard to the level of satisfaction required to be had. The Deputy President's finding was reasonably open to him in those circumstances and was correct.

Misconduct

1. There are a number of general matters we need to address before turning to the central issues in the appeal. First, there was no issue that the respondent was a "public sector employee" whose employment was subject to the PSEM Act and Pt 6 of Ch 2 of the Act dealing with unfair dismissal (whilst the PSEM Act has been repealed, it relevantly applied in the period leading up to and including the respondent's dismissal). Section 43 of that Act defined "misconduct" to include "performance of duties in such a manner as to justify the taking of disciplinary action".
2. Section 46 of the PSEM Act prescribed the process for dealing with allegations of misconduct and provided authority for the Department Head to decide to deal with misconduct allegations as a disciplinary matter in accordance with the procedural guidelines. Section 42 provided that disciplinary action that could be taken against an officer included (a) dismissal from the Public Service or (b) directing the officer to resign, or to be allowed to resign, from the Public Service within a specified time.
3. All of the statutory provisions we have referred to in the PSEM Act were in Pt 2.7. The objects of that Part, set out in s 41 were: a) to maintain appropriate standards of conduct and work-related performance in the Public Service; (b) to protect and enhance the integrity and reputation of the Public Service; (c) to ensure that the public interest is protected.
4. The appellant submitted that the respondent's conduct described in the handcuffing and transport allegations constituted sexual harassment, that it was a contravention of the Anti-Discrimination Act 1977, that such conduct amounted to misconduct within the meaning of the PSEM Act, and that the appropriate response to such misconduct was dismissal or a direction to resign. If the allegations or either one of them is made out we agree it would constitute sexual harassment under the Anti-Discrimination Act (see s 22A) and amount to misconduct. Such misconduct would, prima facie, justify disciplinary action in the form of dismissal in order to meet the objects of Pt 2.7 of the PSEM Act. Sexual harassment of a prison inmate by a prison officer is completely unacceptable conduct.
5. These observations need to be understood in the context, however, of the nature of the proceedings before Harrison DP. The matter concerned an application brought under Pt 6 of Ch 2 of the Act. Putting aside discretionary considerations as to remedy arising under s 89, the relevant test under that Part was whether a termination of employment is harsh, unreasonable or unjust and not whether the employee, the subject of the dismissal, had engaged in misconduct, per se (although that question will influence the determination of whether the dismissal was harsh, unreasonable or unjust). We refer, in that respect, to the decision of Walton J (with which Staff J agreed) in Department of Attorney General and Justice - Corrective Service and Richard Woelfl and others [2013] NSWIRComm 73; (2013) 237 IR 198 at [68] and [69], as follows: 68 The adjudication of unfair dismissal matters does not require a decision as to whether the decision or threat to dismiss was lawful (or may have been lawful), per se, but whether any decision to dismiss was, in the circumstances, harsh, unreasonable or unjust (see NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 at [45]). So, too, the exercise of power under s 89(7) does not ultimately concern whether a decision to threaten dismissal was lawful, or any decision which may result in dismissal may be lawful, but whether the threatened dismissal met that tripartite test. 69 Nonetheless, the question as to whether the officers had engaged in misconduct, and its character and severity, were plainly relevant to the consideration as to whether the statutory criteria in s 84 were met: Casari v Sydney South West Area Health Service [2009] NSWIRComm 103 at [57]; Hargreaves at [45]; Commissioner of Police v Lawrance [2011] NSWIRComm 109 at [82] to [83] and [89] and Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at (74) and (84) and, hence, whether orders should be made under s 89(7).

Standard of proof

1. The second issue concerns standard of proof. The relevant standard is the civil standard, that is, on the balance of probabilities. The respondent submitted before Harrison DP that the "Briginshaw standard" (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336) applied. There did not appear to be any demur from the proposition although Harrison DP does not appear to address the standard of proof in his decision.
2. In Briginshaw, Dixon J stated at 362: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Earlier, at 361, Dixon J said: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.
3. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449; (1992) 67 ALJR 170, after quoting Briginshaw, the joint judgment said at 17: [T]he strength of the evidence necessary to establish the fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary where so serious a matter as fraud is to be found. Statements to that effect ... should be understood as ... reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach to the court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

Tendency

1. On the appeal the appellant sought to rely on previous misconduct relating to the respondent's alleged treatment of women as tendency evidence. That is, that the respondent exhibited a pattern of behaviour that revealed a tendency to engage in the sexual harassment of women. The tendency submission included references to the provisions of the Evidence Act 1995 and in particular s 97, which sets out the tendency rule. Section 97(1) provides: (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
2. Reference was also made to Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51, in which Sackville J described at [61] the kind of evidence to which s 97(b) of the Evidence Act was directed: The critical question in a case in which the tendency rule stated in s 97(1) is said to apply to evidence of conduct is whether the evidence is relevant to a fact in issue because it shows that a person has or had a tendency to act in a particular way. To adopt the language of Cowen and Carter, the question is whether the evidence of conduct is relevant to a fact in issue via propensity: insofar as the evidence establishes the propensity of the relevant person to act in a particular way, is it a link in the process of proving that the person did in fact behave in the particular way on the occasion in question?
3. In the proceedings before Harrison DP there was no objection raised by Mr Fraser to evidence being tendered by the appellant in respect of three previous incidents. In relation to those incidents it had been alleged that he had acted inappropriately towards women. In the absence of objection the appellant had not found it necessary to rely on the provisions of the Evidence Act or the common law relating to tendency evidence in order to have that evidence admitted. The issue regarding tendency arose in the context of the appellant's bare assertion before Harrison DP that the prior incidents demonstrated a propensity on the respondent's part to act inappropriately towards women. There was no reliance placed on, or reference to, the Evidence Act or relevant case law, or the common law, to assist the Deputy President who, in any event, found that none of the three incidents was of any assistance in determining the issue before him.

Handcuffing allegation

1. The bases upon which the Deputy President found that the respondent was not guilty of the handcuffing allegation appear to be that: 1. The approach to Ms Slacke by the investigator informing her that the investigator was aware of inappropriate touching and behaviour toward her, carried the difficulty of being suggestive to her (at 21). 2. There was a conversation between Ms Slack and Mr Fraser as Mr Fraser was in the process of placing handcuffs on Ms Slacke in which Ms Slacke alleged Mr Fraser said "you have a nice butt and you was too good looking and too nice of a person to be locked up here". Mr Fraser then allegedly touched Ms Slacke's left breast. He then said something like, "I would like to do more with you and with these cuffs" (at [74]). 3. Ms Slacke's evidence is that this conversation took place while Officer Matthews was present. Officer Matthews' evidence is that she did not hear any conversation, only Mr Fraser saying what she thought was: "Look what you do to me". Officer Matthews was close enough to hear if anything was said, her evidence does not include reference to any other indistinguishable comment or conversation, which, in my view, supports the denial by Mr Fraser (at [75], [76] and [77]). 4. Officer Matthews was present in the area when Ms Slacke alleges Mr Fraser put one hand through the hatch to touch her on the breast. It is highly improbable that anyone would undertake that sort of conduct whilst knowingly being observed (at [81] and [82]). 5. There is nothing in the evidence of Officer Matthews which supports Ms Slacke's version of events (at [82]). 6. Having regard to the size of the cuffing hatch, it is difficult to accept that it is physically possible, had Ms Slacke had both hands through the hatch, with handcuffs on, that Mr Fraser could have put a hand through the available space (at [82]). 7. Officer Matthews corroborated the evidence of Mr Fraser that Mr Fraser's arms were through the hatch and she did not see him touch Ms Slacke (at [83]). 8. That Officer Matthews did not act on her suspicions further supports a conclusion favouring Mr Fraser's testimony (at [84]).
2. We say the foregoing matters appear to be the bases upon which the Deputy President determined the misconduct did not occur, because there was a lack of precision in the reasoning when precision was important. For example, in relation to the proposition that the investigator informed Ms Slacke he was aware of inappropriate touching and behaviour toward her, the Deputy President said it carried "the difficulty of being suggestive to her". Does that mean the "difficulty of being suggestive" constituted a reason why the Deputy President came to the conclusions he did or was it simply an observation? We do not know, but it will be necessary to deal with it because it may have been a matter upon which the Deputy President based his findings.

The transport allegation

1. The allegation was that on 11 May 2012, whilst Ms Slacke was stepping into a transport vehicle to convey her from the Taree Court cells to Port Macquarie, the respondent inappropriately grabbed her on the buttocks. The appellant again relied on the evidence of the alleged victim, Ms Slacke, and what the appellant asserted was the supporting evidence of Officer Matthews.
2. It was Ms Slacke's recollection, when it was time to be moved, that Mr Fraser collected her from the cell with Officer Matthews and walked her to the transport van. The appellant accepted this account was mistaken and contrary to the evidence of Officer Matthews, as well as that of Mr Fraser and Mr White. They all concurred that Ms Slacke was collected by Officers Matthews and White with Mr Fraser waiting by the open, front pod of the transport van (thus showing her where to go when she arrived at the van).
3. The evidence of Ms Slacke about what occurred next was set out at [88] of Harrison DP's decision. Ms Slacke stated that as she went to get on the van she ducked her head and stepped up and felt Mr Fraser's right hand on her left buttock. She elaborated by saying she felt his fingers digging into her buttocks and that he was grabbing it. This behaviour by Mr Fraser was both unwelcome and offensive so far as Ms Slacke was concerned.
4. Ms Slacke strongly defended her recollection of the event and in cross- examination responded to one question in the following manner : Witness: Well, yeah, that's what I did say, but - but yeah, but all I recall is that he touched me inappropriately, like on the breast and when I was getting up on the truck, you know, he pushed me up on - and grabbed me on the bum, on the truck, no one needs help in getting up on the trucks. I am not, you know, I've got two legs and stuff, I can step up in there alright.
5. There followed shortly thereafter this exchange: Q: I want to suggest that at no time did Mr Fraser touch you, whether on the buttocks or anywhere else, when you were walking onto the truck? A: Well now you're lying because he did.
6. The evidence of Officer Matthews regarding the alleged incident is at [87] of his Honour's decision. Because of her concern that Mr Fraser may have acted inappropriately with Ms Slacke in the holding cell, Officer Matthews said she accompanied the respondent each time he attended the holding cell area. Officer Matthews said she and Officer Steven White walked Ms Slacke to one of the side compartments of the truck and Mr Fraser was already standing there waiting. Officer Matthews then stated: I remained within a meter (sic) behind inmate SLACKE as she walked towards Officer Fraser who was standing at the open door of the compartment. Inmate SLACKE turned to step up and into the compartment and as she did she placed her foot up on the step. At this point I observed Officer Fraser to move his hand in an under and upward direction at a quick speed appearing to be grabbing at the buttocks area possibly the vaginal area of inmate SLACKE. My view was obstructed by something that prevented me actually seeing the connection however my suspicion is that a connection was made. I observed Officer Fraser giggle as this occurred.

Conclusion re errors in first instance decision

1. For the foregoing reasons, we consider that the decision at first instance constituted errors warranting appellate intervention. Further, the reasons given for the decision and orders reached as to whether the dismissal of the respondent was harsh, unjust or unreasonable, in the respects we have outlined, were inadequate. Both such considerations warrant the appeal being upheld and the orders at first instance being set aside. Having so concluded, it is necessary for us to determine the proper outcome of the appeal including whether we should substitute our own decision: PSA 2014 at [37].
2. Having regard to the paucity of credit findings below, the submissions of the parties (the appellant sought that the Full Bench make its own determination as to the matter and the respondent made no submission as to that issue) and our assessment of the evidence, we shall substitute our own decision as to the matter: see TD Preece & Co Pty Ltd v Industrial Court of New South Wales [2008] NSWCA 285; 177 IR 172 at [77]. The following considerations concern that question including some additional steps required for the final disposition of the matter.

Consideration re disposition of the appeal

1. It is relevant to commence that discussion with reference to the judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; 214 CLR 118 where their Honours discussed the obligations of an appeal court hearing an appeal stricto sensu (footnotes omitted): [23] The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. [24] Nevertheless, mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence….Care must be exercised in applying to appellate review of the reasoned decisions of judges, sitting without juries, all of the judicial remarks made concerning the proper approach of appellate courts to appeals against judgments giving effect to jury verdicts…. [25] Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect". In Warren v Coombes, the majority of this Court reiterated the rule that: "[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it." As this Court there said, that approach was "not only sound in law, but beneficial in ... operation"[38]. [26] After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges. [27] The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute. [28] Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings. [29] That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.

Mr Fraser

1. Earlier in this decision we found there was insufficient evidence to support a finding that the respondent had a tendency to sexually harass women. That is not a finding that Mr Fraser was innocent of the allegations made against him by Officer Stewart and Ms Kathleen Stewart.
2. The respondent's employment record is not an enviable one. Three complaints were made against him of inappropriate conduct towards women. Two of those he denied, but we note the complaints by Officer Stewart and Ms Stewart were tendered as business records and, as we noted earlier, thereby constituted exceptions to the hearsay rule.
3. Mr Fraser also initially denied the "Hey lesbians" complaint but the evidence against him was overwhelming and he eventually accepted that the remark was inappropriately sexist and contrary to the standards of behaviour expected under the Performance Management Plan that the respondent had only recently completed. The Plan required Mr Fraser to "use respectful language towards women and to refrain from any sexualised comments, sexual innuendo and banter"; and that he was "not to touch female staff members (and female inmates) or accidentally brush against them".
4. In the context of credibility, it is instructive to consider the circumstances of how Mr Fraser came to change his account of the "Hey lesbians" incident which, we might add, Harrison DP failed to relevantly refer to or give sufficient weight. As the appellant submitted, the ultimate acceptance by the respondent that he made the remark was preceded by a denial of the allegation which had been reported by another officer, Officer Martin; the respondent's denial was in the strongest of terms (that is the claim was asserted to be vexatious and untruthful, malicious, untruthful and slanderous, and that it was part of a vendetta against the respondent by Officer Martin); that in cross-examination the respondent gave multiple accounts of his recollection of the incident vacillating between recalling making the statement; recalling because he had seen reports since; denying any actual recall but accepting he did say it due to all the other people who stated they heard him say it.
5. As we earlier noted, on 29 June 2001, according to Mr Fraser's Personnel File, there had been a Letter of Warning issued to Mr Fraser designed to persuade him to be truthful in his future professional dealings. This was consequent upon the findings in an internal review that Mr Fraser had given untruthful evidence to a parole board hearing. Mr Fraser denied receiving the letter, although he said he did recall the investigation into the matter, and he denied giving any untruthful evidence. Harrison DP disregarded this evidence as being of no assistance whereas the appellant asserted it was relevant (considered with other evidence) to assist the tribunal of fact to better understand Mr Fraser's character and credit. His Honour gave no reason as to why he considered the warning letter of 29 June 2001 was of no assistance.

Ms Slacke

1. In R v Uhrig (unreported, Court of Criminal Appeal (NSW), 24 October 1996) at 16 to 17, Hunt CJ at CL said: A motive to lie where it does exist is a very relevant factor in judging a witness's credit. It will almost inevitably have substantial probative value in relation to the issue of credit.
2. The absence of a motive to lie would also seem to us to be a relevant factor in judging a witness's credit. In R v Palmer at 6 the High Court referred to the text Wills on Circumstantial Evidence, 6th ed (1912) at 256 to 257; Taylor on Evidence, 12th ed (1931), vol 2, par 1442 in which it was stated: It is frequently therefore of the highest importance to investigate the motives of the complainant, and to ascertain whether they are such as may have led to the institution of a false charge. The just course of inquiry in such circumstances was thus laid down by Mr Justice Cresswell. 'The jury,' he said, 'had nothing to do with the prosecutor's motives except so far as if it should appear that there was any motive for the prosecution of an unworthy character made out, it would then be their duty to watch such a case much more narrowly than one in which no such motive appeared. Even in that case, however, if the evidence satisfied them of the truth of the charge, they had no right to look at the motives that had induced the prosecutor to prefer it, but were bound to say that the accused person was guilty.
3. There was no evidence adduced to support any logical motive as to why Ms Slacke would fabricate her version of events against Mr Fraser. There were no communications between Ms Slacke and Officer Matthews as to their respective recollections of what occurred on 11 May 2012 yet, as the appellant correctly submitted, their separate accounts have key points of commonality which support a finding that the evidence of each was truthful as each recalled the events in question.
4. There was no evidence of any latent hostility by Ms Slacke towards Mr Fraser other than her exception to be treated in the sexist manner she alleged. There was no evidence that Ms Slacke was part of any vendetta against Mr Fraser.
5. The respondent sought to undermine Ms Slacke's credibility by referring to Harrison DP's findings regarding the alleged encounter between Ms Slacke and Mr Fraser at the Taree Court House on 7 July 2012. His Honour found that Ms Slacke was not at the Court House on 7 July 2012. His Honour stated: [106] The Taree court lists for 7 July 2012 (Ex 13) tendered by Mr Reitano show that Ms Slacke's case was not dealt with on that day whilst she was still in custody. Ms Slacke acknowledged that she would have participated by video link. The Taree court lists do not show Ms Slacke appearing again until 8 August 2012. [107] At the conclusion of arbitration proceedings Mr Benson sought and was granted leave to make further enquiries of the Taree Court Registry and the capacity to put further submissions by 22 April 2014. [108] Correspondence was subsequently received advising that the Respondent would not file any further material. [109] Mr Fraser and Ms Slacke were not at Taree Court on the same day after her release from Silverwater Correctional Centre until 8 August 2012. This was not immediately after her release, as put by Ms Slacke. There is nothing to support the allegation.

Officer Matthews

1. Harrison DP described Officer Matthews' evidence as "truthful". We agree. There was no evidence Officer Matthews had a motive to lie or that she was hostile towards Mr Fraser such that she would fabricate her evidence in order to do him damage. Officer Matthews' evidence was, in important respects, corroborative of Ms Slacke's evidence and in the absence of any evidence of collusion between the two, Officer Matthews' evidence, albeit circumstantial, is independent evidence.
2. Additionally, there is the business record of Ms Stewart's statement indicating that Officer Matthews described the buttock grabbing incident to her in June 2012 including the hand movements of Mr Fraser.

Officer White

1. The appellant submitted Officer White was not, given his antecedents, a witness of credit and that in the face of conflicting accounts with others their accounts should be preferred unless Officer White's evidence was supported by independent, reliable evidence.
2. The appellant's contention below that Officer White was not a reliable witness was noted by Harrison DP at [65] of his Honour's decision, but not addressed when his Honour came to determining whether to accept Officer White's account in preference to others (see [93]). This failure to provide reasons for rejecting this aspect of the appellant's case constituted appealable error, it was submitted.
3. The appellant asserted the antecedent evidence relevant to an assessment of Officer White's credit was as follows: 1. Officer White had worked in the Investigation Unit of Corrective Services NSW for just under two years and acknowledged with this background that he understood the importance of honesty and integrity in the discharge of his duties. 2. Even so, on 8 June 2005, Officer White was issued a Letter of Warning (by way of remedial disciplinary action) as the consequence of a claim that he had acted dishonestly in relation to an application for carer's leave designed to fraudulently obtain a benefit of leave to which he was not entitled. 3. In 2006, Officer White was found to have engaged in plagiarism in the preparation of an application for an internal position and to have included in his accompanying resume a false statement that he had completed the "Aboriginal Issues Course" for the purpose of misleading the selection panel and to obtain recognition for merit to which he was not entitled. In cross-examination, Officer White admitted his intention was to embellish his application in a misleading way. In other words, Mr Ian McLean, Deputy Commissioner, was correct when he stated in a Letter of Caution to Officer White dated 30 June 2006 that: I consider that when you prepared your resume and application you were not honest and truthful, and by signing and submitting the application form you made a statement that was false and misleading.
4. The appellant submitted that if Harrison DP had given proper regard to this material relating to Officer White's credit, it ought to have led to the resolution of any credit conflict between Officer White and both Ms Slacke and Officer Matthews in the latter's favour.

Handcuffing allegation

1. We conclude that on 11 May 2012 the respondent touched Ms Slacke's breast as he was in the processing of handcuffing Ms Slacke at the Taree holding cells. There is no basis to disbelieve Ms Slacke that the touching occurred. Whilst Officer Matthews did not witness the actual touching, her evidence supports a strong likelihood that the touching occurred and thereby corroborated the evidence of Ms Slacke. The respondent was in a position where he could touch Ms Slacke's breast and given that we prefer the evidence of Ms Slacke and Officer Matthews over that of the respondent there is little doubt he did so. We note, as earlier discussed, that Ms Slacke and Officer Matthews gave independent, but consistent accounts of this incident without any communication between the then inmate and the prison officer (there was no evidence of collusion between those persons).
2. We do not accept the respondent's evidence that Officer Matthews was present at all times while he handcuffed Ms Slacke and that Officer Matthews actually assisted him with the handcuffing process. To accept that evidence would mean that Officer Matthews deliberately set about concocting a false scenario in order to support Ms Slacke's version of events and we find that glaringly improbable.
3. Dixon J said in Briginshaw that the tribunal must feel an actual persuasion of the occurrence or existence of a fact in issue before it can be found. In this case we are actually persuaded the respondent touched the breast of Ms Slacke.

Transport allegation

1. Similarly, we further conclude Mr Fraser grabbed Ms Slacke on the buttocks as she was entering the prison van. Again, there is no reason to disbelieve Ms Slacke and the observations of Officer Matthews regarding the respondent's hand movement and his giggle corroborates to a significant degree the evidence of Ms Slacke. Officer Matthews' close observation of Mr Fraser at the time of the incident is also significant in this respect.
2. We prefer the evidence of Ms Slacke and Officer Matthews to that of Officer White. It may be that Officer White was truthful in not witnessing anything untoward by Mr Fraser. It may have been he was momentarily distracted after he had passed by Mr Fraser at the van walking towards the rear. As the appellant submitted, Ms Slacke was not a threatening inmate and as Officer White passed Mr Fraser, Ms Slacke was then effectively under both Mr Fraser's and Officer Matthews' care and control. Further, Mr White gave evidence that he had taken on the task of "doing the bookwork" associated with the escort duties at the same time. As Officer White explained in cross-examination, for each and every inmate movement there was a requirement to provide a record of the time of any inmate movement; inmate's name; the name of the persons who were the escorting officers and where the inmate was taken. It is thus conceivable Officer White was focused on his bookwork at the critical moment.

Whether dismissal harsh, unreasonable or unjust

1. Harrison DP found that as the allegations against Mr Fraser were not made out his dismissal was, therefore, "harsh, unreasonable and unjust".
2. We have found his Honour erred and, in reaching our own conclusion as to this matter, the misconduct of which the respondent is guilty constitutes sexual harassment by a correctional officer of an inmate. Such conduct is unacceptable.
3. Other than reference to the respondent's age and his "good employment record" over 26 years, little attention was given by the respondent to the consequences for him if the Deputy President had upheld the dismissal. Consequently, there is very little information (or submissions) available to the Full Bench to weigh in the balance the competing considerations of the seriousness of the misconduct and any exculpatory or mitigating factors in favour of the respondent so as to determine whether the dismissal was, nonetheless, harsh, unreasonable or unjust (Vouden v Commissioner of Police [2014] NSWIRComm 25 at [480] and [610]) and, if an affirmative finding was made in that later respect, whether a remedy under s 89 of the Act may appropriately be granted in favour of the respondent.
4. Accordingly, we shall permit the parties to make further submissions, if they choose to do so, to assist the Full Bench as to the matters referred to in the previous paragraph.

Orders

1. The Full Bench makes the following orders: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The decision and orders of Harrison DP in Matter No IRC 823 of 2013 are quashed. 4. The parties shall make any further submissions on the disposition of the appeal in accordance with [210] and [211] of this decision by the appellant filing any submissions in writing within seven days of the date of this decision and the respondent filing written submissions in reply seven days thereafter. Parties should indicate in their written submissions if a short oral hearing in supplementation of the written submissions is required. We give liberty to apply with respect to these directions.

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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: 06 February 2015