As set out in the respondent's Summary of Case, filed on 25 January 2023:
"1. [The applicant] was employed by the Industrial Relations Secretary on behalf of the Department of Communities and Justice … from 4 November 2019 to 5 September 2022 … as a … Correctional Officer based at Wellington Correction Centre ….
2. The Employment ceased following the Respondent making a finding of misconduct based on the Applicant being found guilty of common assault of [a cleaner] working at the Wellington Correction Centre … on 15 November 2021 …. The Respondent took disciplinary action against the Applicant pursuant to s 69(4)(b) of the Government Sector Employment Act 2013 (NSW) …. The applicant subsequently accepted the opportunity to tender his resignation from the Employment, as an alternative to his employed being terminated.
…
7. The applicant was employed as a Correctional Officer in the public service pursuant to Part 4 of the GSE Act. During the Employment the Applicant was required to comply with:
(a) section 7 of the GSE Act that sets out the core values for the government sector, including to:
(i) 'Act professionally with honesty, consistency and impartiality';
(ii) 'Take responsibility for situations, showing leadership and courage';
(iii) 'Build relationships based on mutual trust';
(iv) 'Uphold the law, institutions of government and democratic principles'; and
(v) 'Take responsibility for decisions and actions';
(b) the Department of Communities and Justice's Code of Ethical Conduct, … which includes:
(i) prime responsibilities to treat colleagues 'with respect and dignity, fairness and consistency' and to work collaboratively with colleagues;
(ii) that employees are required to 'be mindful of their duty of care to ensure safety of themselves and others around them'; and
(iii) that when interacting with others, employees must 'respect the rights and dignity of others' …
…
8. In accordance with the Correctional Officer Position Description, the Applicant's role included:
(a) the primary purpose of providing 'a high standard of continuous static and dynamic security in the containment and oversight of inmate/offender activities. Correctional Officers play an important role in maintaining the safety and wellbeing of staff and inmates';
(b) key accountabilities that required the Applicant to
(i) treat other staff 'with respect and act in accordance with the DCJ values to build a harmonious workplace';
(ii) conduct daily accountability activities and ongoing observations of inmates/offenders;
(iii) conduct searching and other detention activities to remove contraband;
(iv) manage or escalate inmates' requests for service; and
(v) supervise inmate/offender activities in their respective work, residential or other approved areas, and;
(c) key challenges included:
(i) 'Coping with unscheduled and frequent personal contact with inmates/offenders who vary greatly in intellectual and physical ability and aptitude'; and
(ii) 'To role model respectful behaviours and seek resolution of issues through effective and timely two-way communication with other employees and inmates'.
…
10. In around July 2021, the Applicant was transferred from Wellington [Correctional Centre] to Bathurst Correctional Centre while repairs were carried out at the Wellington [Correctional Centre].
11. On or around 9 November 2021, the Applicant was transferred back to Wellington [Correctional Centre] and assigned to work escorting and supervising contractor workers undertaking building and cleaning work in the centre. It was on or around this date that the applicant first met the Victim.
12. On 15 November 2021, while on duty, the Applicant was assigned to escort and supervise contractor cleaners who were working at Wellington [Correctional Centre], including the Victim. While undertaking that work, the Applicant assaulted the Victim while she was standing on a ladder in an area alone with the Applicant."
…
15. On 17 November 2021 two officers attended the Wellington [Correctional Centre] and conducted a recorded interview with the Applicant in relation to the Assault. …"
[Emphasis in the original; footnotes omitted.]
The applicant met with the police at his workplace, apparently without notice or legal representation. To his credit, he agreed to the interview. Unsurprisingly, in the circumstances, the narrative is jumbled. Nevertheless, it is clear that he agreed with the basic elements of the allegations and did not dissemble.
The police interview narrative can be found in the document which has been tendered as Exhibit R1, which is a transcript of an attachment to a witness statement of the applicant [1] . I do not propose to go through that interview narrative.
By the time the matter came before the Local Court on 22 June 2022 the police facts sheet was amended by agreement between the police prosecutor and the applicant's lawyers. That amended facts sheet ('Amended Facts Sheet') became the Local Court's basis for decision and the applicant's plea of guilty.
The Commission has before it both the original and the redacted versions of the police facts sheet. The relevant parts of those facts, and I refer to the Redacted Facts Sheet, are as follows:
"Around 3pm on Monday 15 November 2021 the victim was standing on a ladder located in one of the pods at Wellington Correctional Centre. At the time, she was by herself as her colleagues left the area in order to conduct other tasks. The victim did not feel comfortable standing on a ladder without anyone around her so she started to walk down the ladder. At this time the accused has approached the ladder.
The accused has then placed an arm around the waist of the victim and leant up against the victim with his body weight preventing her from walking down the ladder. As a result of the action the victim's right shin was pressed against one of the steps of the ladder causing immediate pain to the area.
The accused has then said to the victim, 'You are not going to fall.' The victim replied, 'No, no, let me go.' At this point the accused let go of the victim allowing her to exit the ladder. Three of the victim's colleagues attended the location. The victim informed her colleagues of what happened, then reported the incident to her supervisors.
Police were contacted in regards to the incident. On the 17th November 2021, police attended Wellington Correctional Centre. When police attended they spoke to the victim and obtained a signed handwritten statement from her. …
After obtaining a statement from the victim police were informed by a high rank correctional officer that the accused was currently working that day. The accused was called to attend the location.
When the accused attended the area where the police were located, police introduced themselves to the accused by stating their name, rank and place of work. At the time police activated their body worn camera. Police cautioned the accused and informed him that they were recording interaction on body worn video. Police asked the accused questions in relation to the alleged incident to which the accused made full admissions to assaulting the victim. The accused stated that there was no malicious intent and that he was 'joking around' with the victim. The accused also stated that he understood it was inappropriate and he did not obtain permission from the victim in regards to physically touching her." [2]
I note that the statement of the victim referenced in the Redacted Facts Sheet was in evidence before the Commission.
It is also appropriate that some parts of the sentencing remarks of the Magistrate are included in the reasons for decision here. His Honour Olischlager LCM said:
"You appear before the Court charged with assault. It is an offence which carries a maximum penalty of up to two years imprisonment. Simply point that out so you understand these cases can be serious matters when they are dealt with by the Court.
Of course, the Court looks to the circumstances of each case to consider how serious an example it is of an assault. Reading the circumstances in this instance it was in the course of your employment as a Corrective Services officer that there was the incident involving a cleaner.
The cleaner being on a ladder wanting to get down and at that point you and perhaps for some misguided view in terms of maybe you know in a kidding around fashion or some other manner intervening and stopping that cleaner from getting down the ladder by using firstly your arm and then placing your body weight preventing her from coming down the ladder.
In terms of the matter, it is clear that it was only a relatively short incident in terms of when the victim said 'Let me go' at that point you did move back and let her go so that she was able to get down.
In terms of, of course an assault it is merely the intentional touching of another person without their consent or without any lawful excuse, which constitutes an assault. So even though the Court is dealing with the circumstances not in the ordinary sense of a strike, a hit, a punch, but still in the nature of what occurs here is clearly in my view both unlawful in terms of touching and there was no need for it and there was no consent to it. It was clearly constituting the offence of assault so it is appropriate that a plea of guilty is entered.
But in terms of assessing its objective seriousness, I do accept that it is at the very low end of the objective seriousness range for the reasons that it does not involve violence, it does not involve force in any serious way towards a person.
…
Ultimately I am of the view that this is a matter which is an isolated incident that is unlikely to reoccur, that I note the contrition or remorse that is expressed.
I am satisfied that it is a matter which does need to proceed to a conviction. In fact I am of the view that it can be dismissed under s 10(1)(a) I do not consider a conditional release order is even necessary in the sense that I do not consider it at all likely that you are going to reoffend or come back before the Court for any further matter." [3]
In these proceedings in the Commission, the parties, both of them, are stuck with the Redacted Facts Sheet and the remarks of his Honour Olischlager LCM. I observe that both parties did attempt to put different glosses on those facts in this proceeding. Other than as I set out explicitly below, I do not consider a great deal turns on the differences.
After the proceedings in the Local Court, the respondent commenced an internal process to determine its response to the finding of guilt. A proposed letter was provided to Craig Smith, then Custodial Director Western Region, the ultimate decision maker in dismissing the applicant. Along with a draft letter Mr Smith was given an extract from a departmental record showing the outcome of the Local Court proceeding.
The extract provided, in part, "Date of listing: 22 June 2022 before Magistrate S Olischlager at Local Court - Crime, Wellington". It noted the appearances. Amongst a series of codes, it provided "Actual offence: Common assault" and then provided a narrative which was as follows:
"A plea of guilty is accepted. AMENDED FACTS.
The offender, [the applicant] is found guilty but without proceeding to conviction the matter is dismissed pursuant to Section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. Upon a finding of guilt, the offence is dismissed pursuant to Section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999."
[Emphasis in the original]
Some 100 odd words in total, including some that are not extracted here. It was apparent that Mr Smith received advice with the letter and outcome summary, but this was not in evidence before the Commission.
On 13 July 2022 Mr Smith signed and sent to the applicant a show cause letter to the effect that, based on the applicant's guilty plea, the applicant had misconducted himself and as a consequence the respondent was proposing to dismiss the applicant without an opportunity to resign.
The letter gave the applicant options to provide either or both a written or an oral submission "in relation to the proposed action". It said relevantly in that regard:
"Your submission may address my finding that you have engaged in misconduct, the information on which the decision was based, any extenuating and mitigating circumstances, the appropriateness of the action I propose and any alternate action that you consider appropriate. …
If you wish to make an oral submission to me in addition to or instead of a written submission, you also have an opportunity to have an interview with me, accompanied by a union or other representative (not a legal practitioner) before a final decision is made. Your representative may speak on your behalf at the interview but may not attempt to cross-examine me." [4]
Unfortunately, the letter sent by Mr Smith on 13 July 2022 contained substantial errors and was reissued without the bulk of those errors on 28 July 2022. The effect of the reissued letter was the same: one, the respondent proposed to dismiss the applicant; two, the applicant was given an opportunity to respond to that proposed course.
It is relevant to set out the errors in the 13 July letter, being that the letter:
1. Referred to the wrong date of proceedings in the Local Court;
2. Referred to the wrong location of those proceedings;
3. Referenced the wrong magistrate; and
4. Had the outcome of a different proceeding in that other court.
The last point is the most serious, as it recorded a conditional release order which his Honour Olischlager LCM found was not required for the applicant's matter.
Given the seriousness of the content of the 13 July letter, it cannot be said that the errors are trivial, which the respondent acknowledged by reissuing the letter, with those errors articulated above corrected, on 28 July 2023.
Not corrected in the 28 July reissue was the error that the applicant had been convicted. The matter was concluded without a conviction albeit by an admission of guilt by the applicant.
In the event, the applicant met, supported by his union, with Mr Smith to give his response to the proposed dismissal. In short, his position was:
1. The dismissal was too harsh for the conduct;
2. The applicant was extremely remorseful;
3. The applicant would accept other discipline short of dismissal; and
4. Dismissal would have excessive consequences for his family.
For reasons not really explained, the applicant's union did not take up the opportunity to provide a written submission.
The transcript of the meeting records Mr Smith opening with the following questions:
"Q. Do you agree that I sent you a letter dated the 28th of July, 2022, the letter advised the following outlining a finding of guilt without proceeding to a criminal offence of common assault on June, 2022? I have made a finding of misconduct and that I was considering termination of your employment without opportunity to resign. Do you agree that I invited you to make written or oral submissions about the proposed action?
A. I do, Sir.
…
Q. Before I make any decision regarding this matter I now give you the opportunity to make a submission and/or to provide additional information which you consider should be taken into account. So happy to hear from you that you'd like to put forward now, Matthew." [5]
These were the only questions from Mr Smith about the basis of termination during the meeting.
On 24 August 2022 Mr Smith wrote to the applicant with the outcome of his consideration of the applicant's oral submissions. That decision was dismissal with an opportunity to resign.
The applicant was originally given 24 hours to resign, or face being dismissed. A second letter in the same terms, save for giving the applicant seven days to resign, was issued on the same day, 24 August 2022. Relevant parts of that letter are:
"Dear Mr Dickson,
I refer to my letter of 28 July 2022 in which I advised you that I had made findings of misconduct against you following a finding of guilt made against you but without proceeding to a conviction to the charge of 'Common Assault' pursuant to s. 61 of the Crimes Act 1900, at Wellington Local Court.
I have considered the submissions you made during our video conference on 29 July 2022. A transcript of that meeting is attached for your reference.
Having considered this matter, including your submissions and the available evidence, I have made a final decision to impose the following misconduct outcome on you:
Termination of employment (with opportunity to resign)
I have imposed this action against you for the following reasons:
• It is not appropriate for you to continue in your current employment after being found guilty of a serious criminal offence;
• Your actions were entirely unacceptable and reflect poorly on CSNSW;
• Your behaviour is incompatible with employment within CSNSW where you are required to supervise offenders who have been convicted of violence related offences. Such conduct requires a proportionate outcome that sends a message that such misconduct will not be tolerated by CSNSW.
• The misconduct demonstrates a serious failure to meet the standard of conduct expected of a Correctional Officer and a failure as a law enforcement officer to obey the criminal law; and
• Your actions have the potential to affect the reputation of CSNSW as it involved assaulting a co-worker.
You are hereby required to tender your resignation to Governor Kennedy within 7 days from when you receive this letter. Should you fail to resign within that time, your employment will be terminated and a copy of this letter will be appended to the termination letter."
On 4 September 2022 the applicant tendered his resignation.
Clearly, given the letter of 28 August 2022, the employment ended at the instigation of the employer.
The applicant submitted as to the relevant principles to be applied, and I am taking these from the written outline, but they were essentially as submitted by Mr Saunders orally.
"16. Mr Dickson must ultimately satisfy the Commission that his dismissal was harsh, unreasonable or unjust within the meaning of Pt 6 ch 2 of the Act: Western Suburbs District Ambulance Committee v Tipping (19570 AR (NSW) 273.
17. Each of the words harsh, unreasonable and unjust have their own discrete meaning. Not all three descriptions of a dismissal are necessary for a finding of unfairness. In other words, a particular dismissal might be found to be 'harsh' but not 'unreasonable' or 'unjust'. Per McHugh and Gummow JJ in in Byrne & Anor v Australian Airlines (1995) 61 IR 32 at p72:
It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.
18. Mr Dickson, as set out above, was dismissed for misconduct. In these circumstances, the following questions arise:
(a) first, whether the alleged conduct occurred, and constituted misconduct;
(b) if so, then separately considering whether the seriousness of the conduct would justify dismissal; and
(c) finally whether mitigating factors nevertheless render the dismissal harsh:
…
19. Corrective Services NSW bears the onus of proof in respect of establishing that the conduct on which it relies both occurred, and constituted misconduct warranting dismissal.
…
21. … there is no challenge to the fact that Mr Dickson's guilty plea is at least capable of constituting misconduct within the meaning of the Government Sector Employment Act 2013 (NSW).
22. Section 69 of that Act defines "misconduct" as including:
'a … finding of guilt for a serious offence'
being
'an offence punishable by imprisonment … for 12 months or more",
which common assault is per s.61 of the Crimes Act 1900 (NSW).
23. However, even if that is accepted, … this is not the end of the enquiry. In circumstances where:
a. the underlying conduct was of a kind that would not of itself have necessarily constituted misconduct, and certainly would not have justified a sanction as harsh as termination of employment;
b. the Court, with regard to the "objective … very low" seriousness of the conduct and absence of any risk of reoffending, determined that the matter was suitable to be dealt with via s.10(1)(a) dismissal and no conviction was ultimately recorded;
c. the conduct was a brief one-off interaction, intended as an ill-advised but harmless joke, and is better described as 'unwanted, nonsexual touching' rather than the more generic term 'assault';
d. notably the conduct occurred in a situation outside Mr Dickson's usual employment, and had no connection to his primary duty of supervising detainees;
e. Mr Dickson has no previous record of any such conduct, and has displayed significant remorse and self-awareness such that there is no real risk of any recurrence,
the finding of guilt alone is insufficient to form a valid reason for termination. Accordingly, the dismissal was unreasonable.
Procedural issues
…
25. Here, two significant defects in the approach taken by Corrective Services NSW arise.
a. first, the pre-dismissal procedure required by the Government Sector Employment Act 2013 (NSW) were not followed, such that Corrective Services acted outside its statutory authority;
b. second, a real apprehension arises that Corrective Services acted on a pre-formed view that any finding of guilt necessitated dismissal, such that the matters raised by Mr Dickson were not in fact properly considered." [6]
[Emphasis in the original.]
The applicant then set out what it said was the longer process the respondent needed to have followed, before continuing:
"30. In this matter, Corrective Services NSW notified Mr Dickson of the:
a. allegation of misconduct;
b. the decision to proceed with the matter as such; and
c. finding that it had been sustained,
in the same letter, it having proceeded through the steps without troubling itself to tell, let alone hear from him.
31. This comprehensive failure by Corrective Services NSW to comply with its statutory obligations on one view renders the dismissal a nullity. It is undeniably unjust; these are important and mandatory obligations.
32. It is no answer to say that the conduct was not in question. This is not the only consideration - as set out above, the discretion to proceed with an investigation is entirely unfettered. The decision-maker is entitled to consider mitigating factors and explanations as well as the facts underpinning the allegation.
…
34. Mr Dickson was, without explanation, robbed of a critical early opportunity to influence the outcome. What that decision maker might have done at that stage is now unknowable. The dismissal was, accordingly and unquestionably, unjust.
35. This leads to the second concern identified. The obvious explanation for this otherwise inexplicable departure is that Corrective Services NSW had simply closed its mind; that it considered that once a plea of guilty was entered, it had no option but to dismiss Mr Dickson. This is bolstered when one considers:
a. the total lack of engagement in the dismissal letter with a single matter raised by Mr Dickson in the pre dismissal meeting; and
b. the sentence, 'it is not appropriate for you to continue in your current employment after being found guilty of a serious criminal offence', which can only be read as involving no room for any compromise.
…
Harshness
39. Finally, it is apparent the decision to dismiss Mr Dickson had a disproportionate impact on him relative to the nature of the wrongdoing, noting:
a. his status as the sole breadwinner for his young family;
b. his regional location;
c. the low prospects of him finding comparable employment;
d. his otherwise good record in employment;
e. the devastating financial impact the dismissal has had on him and his family.
…
42. Reinstatement is the primary remedy under the Act. It must be established that reinstatement is impracticable before orders for compensatory relief may be made: Little v Commissioner of Police (no 2) (2002) 112 IR 212; Riley v WorkCover Authority (NSW) (2006) 151 IR 396. Whether reinstatement is practicable requires consideration of all the relevant circumstances of the case relating to the employer and the employee, evaluated in a commonsense way: NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 at [49].
43. The fact that reinstatement of an employee for misconduct may prove embarrassing or difficult for the employer is no bar to reinstating an employee whose dismissal is otherwise found to be unfair; Sydney Ferries v Seamen's o/b Levy at [85]. The Commission will carefully scrutinise any claim by an employer that reinstatement is inappropriate due to breakdown in the relationship; Perkins v Grace Worldwide (Australia) Pty Ltd (1997) 72 IR 186 at 191-192. Significantly in this matter, the fact that an employer - despite a contrary finding by the Commission - maintains a view that the employee engaged in serious misconduct would be of no proper significance to the question of whether reinstatement was impracticable.
44. Here, there is no apparent obstacle to reinstatement. In particular, there is no suggestion that a one-off incident of the kind in contemplation here would cause the kind of permanent rupture in a employment relationship that would act as a bar to reinstatement - particularly given that it is vanishingly unlikely the conduct would recur." [7]
[Emphasis in the original.]
I refer to only one matter in the applicant's outline of submission in reply and that is in paragraph 9:
" … for what it is worth, Mr Dickson has never been accused of sexual harassment. The respondent makes no effort to demonstrate that this is what he has done. Not all unwanted touching falls within the meaning of sexual harassment; …" [8]
The respondent's outline, which again was reflected in Ms Thew's oral submissions, beginning at paragraph 23 as to legal principles said:
"Legal Principles
24. In determining the Application, the onus is on the Applicant to prove that the dismissal was harsh, unjust or unreasonable [9] . Section 88 of the IR Act provides certain matters which the Commission may, if appropriate, take into account in determining the Application.
25. Each of the words 'harsh, unreasonable or unjust' require discrete consideration; [10] It is relevant for the Commission to consider the regulatory context within which the Applicant was employed as a Correctional Officer in the public sector and the requirements of the Code of Conduct and the GSE Act. [11]
Paragraph 26, the finding of misconduct constituted a valid reason, by which I take the respondent to be submitting was not unjust for the dismissal, including because the guilty plea for the assault constituted misconduct within the meaning of s 69 subs 1 of the GSE Act. The applicant was found guilty of common assault. That is defined as a serious offence, being an offence punishable by imprisonment for 12 months or more.
The Respondent's case
The Applicant's misconduct
26. The Finding of Misconduct constituted a valid reason for the Dismissal, including because the Guilty Plea for the Assault constituted misconduct within the meaning of section 69(1) of the GSE Act. As the applicant was found guilty of common assault that is defined as a serious offence (being an offence punishable by imprisonment for 12 months or more). [12] " [13]
[Emphasis in the original; footnotes referencing evidence omitted.]
I take the reference to a "valid reason" to be the respondent submitting the dismissal was not unjust.
The respondent then made submissions that the applicant's misconduct constituted a breach of his obligations under the Government Sector Employment Act 2013 ('GSE Act'), the respondent's Code of Conduct and the respondent's Bullying and Harassment Policy.
Returning to the respondent's summary of case:
"28. The misconduct was particularly serious in circumstances where:
(a) by the Applicant's own admission, the assault included the Applicant
(i) approaching the Victim without warning while she was alone and standing on a ladder;
(ii) placing his arm around the Victim's waist and leaning against the victim from behind with his bodyweight pressing the Victim against the ladder;
(iii) touching the Victim without her consent;
(b) there was no reasonable basis for the Applicant to believe his conduct was wanted by the Victim or that it was appropriate, noting that the applicant had met the Victim for the first time on or around 9 November 2021, some six days before the Assault, and the Applicant did not know the Victim well;
(c) the Applicant was in a position of authority at the time of the Assault, having been assigned to supervise and escort her and other contract workers working at the Wellington CC; and
(d) the Applicant's assault was committed against a young woman who was entitled to be and to feel safe in the workplace.
29. The Respondent submits the Applicant is bound to the extent of the factual findings made by Magistrate Olischlager in accepting the Guilty Plea based on the Agreed Facts and cannot resile from those factual findings in these proceedings. Notwithstanding this, there is nothing that could or should preclude the Commission from taking into account evidence in those proceedings of any additional matters relating to the Assault to the extent that those matters are not inconsistent with the material facts presented on plea.
…
The Applicant's lack of insight
32. The Applicant, in his statement, has sought to minimise the seriousness of the misconduct, including by:
(a) resiling from the Agreed Facts that provided, during the Assault, he placed his arm around the Victim's waist and leant up against the Victim from behind, pressing his bodyweight against her; and
(b) by seeking to excuse the assault or downplaying its seriousness as 'poor attempt at a joke'.
…
35. The Respondent submits that in assessing the Application the Commission should give weight to its concerns that if the Applicant's dismissal was held to be unfair, that may be used as a precedent for other Corrective Services officers to engage in similar misconduct involving inappropriate touching of other persons in the workplace. …
36. Sufficient trust is required to make an employment relationship viable. Trust and confidence are concepts of degree. [14]
37. The Applicant held a position in which required him to exercise a high level of control and authority over inmate activities within a correctional setting. Given the power exercised by the Applicant in his employment over vulnerable people, the Respondent must have a high level of trust and confidence in the Applicant to make that relationship viable. In committing the Assault, the Applicant:
(a) abused the position of authority that he had over the Victim;
(b) abused the trust the Respondent placed him in in accordance with the core values for the government sector and the Code of Conduct; and
(c) destroyed the relationship of trust and confidence with the Respondent that was necessary for the continuation of the employment relationship.
Procedural Fairness
38. The Applicant was told by the Respondent in clear terms the reason for the dismissal and he was given an opportunity to make out a defence or give an explanation in respect of that reason.
39. The Applicant was placed on suspension with full pay while the Criminal Charge was pending. This was a reasonable approach to take, instead of the Respondent separately investigating and make findings with respect to the Assault while the criminal proceedings were ongoing. This approach ameliorated the possibility of inconsistent outcomes or action taken.
…
41. Through the process followed by the Respondent, it is clear that, prior to any final decision being made in relation to disciplinary action, the Applicant:
(a) knew the details of the allegation against him, and the information adverse to his interests that were being considered by the Respondent;
(b) was advised of the disciplinary action that the Respondent was considering;
(c) had a meaningful opportunity to respond to the allegations and the proposed disciplinary action before a decision adverse to his interests was made; and
(d) was therefore afforded procedural fairness.
The Applicant's case
…
45. That the Respondent did not exceed to the Applicant's request that he not be dismissed does not mean axiomatically the Respondent did not consider any mitigating factors raised by the Applicant. The Respondent considered all matters raised by the Applicant, weighed them against the misconduct and decided to implement disciplinary action that was appropriate in all the circumstances. This action was lesser than the Proposed Disciplinary Action.
46. On the issue of harshness:
(a) assessment of whether a dismissal was harsh requires the Commission to consider all the relevant factors and weigh them in balance [15] ;
(b) the circumstances of the present case including:
(i) the Applicant's age and short period of service with the Respondent;
(ii) the seriousness of the misconduct; and
(iii) the high level of trust the Respondent required of a public sector employee in the Applicant's position;
(c) lead to the conclusion the Dismissal was proportionate to the misconduct, and not harsh.
…
48. The process followed by the Respondent in relation to the Applicant was, in relevant respects, the same as the process followed in Sparks v Industrial Relations Secretary (in respect of the Department of Communities and Justice (Corrective services NSW)) [2022] NSWIRComm 1021. In that case, the applicant submitted there was procedural unfairness for the following reasons:
(a) First, because the respondent did not advise the applicant of the details of the allegation and invite a response under rule 38 (3)-(4) of the GSE Rules before making a misconduct finding. Commissioner Sloan rejected this argument, observing that '… where the misconduct is admitted, it is difficult to see what, if any, prejudice was occasioned to Mr Sparks as a result of the alleged procedural deficiency'; and/or
(b) Second, because the respondent did not sufficiently interrogate the applicant to elucidate relevant information about the misconduct during the interview conducted by the respondent for the purpose of the applicant making oral submissions in relation to the proposed disciplinary action. Commissioner Sloan rejected this argument and observed 'It was for the applicant to put his case, not for the respondent to draw it out of him.'
[Emphasis in the original; footnotes referencing evidence omitted.]
As to the legal framework, at a high level the parties essentially agree the general onus is on the applicant to establish his dismissal was unfair, but the respondent bears the onus of establishing that any misconduct on which it relies as to the basis for dismissal both (a) occurred and (b) warranted dismissal.
The applicant says the dismissal was:
1. Unreasonable for a failure by the respondent to follow a procedurally fair process, and because the respondent had a preformed view that any finding of guilt warranted dismissal and the respondent, therefore, did not give proper consideration to matters raised by the applicant;
2. Harsh or unjust or both for the dismissal not being warranted by the conduct; and
3. Harsh for its impact on him in his personal circumstances.
The respondent says:
1. Clearly the conduct occurred;
2. That the action is statutorily defined as misconduct;
3. That the misconduct is serious enough to warrant dismissal;
4. That the applicant was aware of the basis for his proposed dismissal, and he was given a proper opportunity to give any response that he wished to that proposition.
5. The respondent properly considered that response in the totality of the circumstances; and
6. That any consequence from the dismissal is proportionate to the conduct, especially in the context of an employee of short duration.
The respondent took the Commission to the Court of Appeal decision in Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at [146], and submitted that in Wattie the Court of Appeal was clear that in decisions such as this one before the Commission, proper regard should be had not only to the Industrial Relations Act 1996 ('IR Act') but also to the statutory framework covering public sector employment.
Ms Thew took the Commission to ss 4, 6 and 7 of the GSE Act. Each set out what I described as aspirational standards for employee conduct, among other matters.
Object 4(d) contains that the GSE Act is to provide an ethical framework. Objective 6(b) provides that that part of the GSE Act is to establish an ethical framework.
Section 7 of the GSE Act sets some core values for the government sector and the principles that guide their implementation are as follows:
1. Under "integrity", "Take responsibility for situations, showing leadership and courage";
2. Under "Trust" "Build relationships based on mutual respect" and "Uphold the law …"; and
3. Under "Accountability", "Observe standards for safety."
Without wishing to downplay them, they set out what might otherwise seem obvious standards. Clearly the conduct of the applicant was in breach of some of these. The question though is how these objects and their breach is reflected in whether the applicant's dismissal was harsh, unreasonable or unjust. Clearly it is a factor and largely one against the applicant.
The respondent specifically took the Commission to s 69 of the GSE Act. The applicant's conduct was, as I have already held already, therefore misconduct. The question is whether the misconduct was serious enough to warrant dismissal.
The respondent also took the Commission to cl 24 of the award. That the obligations in that clause have not been upheld in full by the applicant is again almost obvious on its face. Again, the question is whether those breaches are serious enough to warrant dismissal.
The respondent also took the Commission to reg 129 of the Crimes (Administration of Sentences) Regulation 2014 and in particular to subr (2) which is that "A correctional officer must endeavour to control inmates by showing them example and leadership and by enlisting their willing cooperation." Again, the question is whether an apparent breach, which may, on its face, be obvious, of that regulation would warrant dismissal.
All of these are collectively factors which must be considered, but past a certain point referring to more of them in the structure does not add to the seriousness of the applicant's conduct.
The respondent took the Commission to a number of unfair dismissal cases where an employee was dismissed following variously findings of guilt, conviction and fines. Some are more closely analogous to this case than others.
Some crimes were objectively more serious. Some cases involved more crimes. In some cases, the applicant attempted to resile from the facts before the Local Court. In totality, they provide general guidance, but the decision under Part 6 is an exercise of the Commission's judgment in respect of each case. I have taken those cases, as I was taken to them, into account.
[2]
Consideration
Before proceeding, I would note that this is not a sexual harassment, or a sexual assault case and it has never been put that way by the respondent. Nothing the Commission says should be taken to reflect on any conduct of that kind.
It is abundantly clear the applicant engaged in the conduct which led to his dismissal. This is not disputed by the applicant. Indeed, the applicant submitted, and in evidence admitted, that the conduct was wrong. To this extent, the respondent's onus to prove the conduct is concluded.
For an abundance of clarity, the details of the conduct in the agreed facts before the Local Court, and no addition or subtraction, are the facts on which the Commission proceeds.
On reflection, I have concluded that the differences between paragraph 29 of the applicant's statement and the precise wording in the Redacted Facts Sheet are not ones of particular moment. I find that they are essentially the same issues, albeit it is odd that different words are used.
I have already extracted what I consider to be the relevant parts of the Redacted Facts Sheet. Of course, there is also clarity that the applicant pleaded guilty to a charge of common assault based on those facts.
The respondent's case was that the reasons for dismissal extended beyond the assault and the guilty plea. It was, based it was said on the evidence of Mr Smith, that this included, and I quote from the statement of Mr Smith under the heading "Dismissal":
"47. I took into account during the period 28 July 2022 and 24 August 2022 the available evidence and Mr Dickson's oral submissions before making a final decision on disciplinary action.
48. This included consideration of Mr Dickson's oral submissions regarding his personal circumstances, the impact the potential disciplinary action may have on him and his family, and the magistrate's comments about the offending being a low grade of criminal assault. I did not have a copy of the court transcript regarding the Magistrate's comments but did consider Mr Dickson's submissions regarding that matter prior to making a final decision.
49. On 24 August 2022, I made the decision to terminate the employment of Mr Dickson. This was not a decision I made lightly. I took into account the mitigating matters raised by Mr Dickson and decided to impose a lesser misconduct action than what was initially proposed, which was termination (without an opportunity to resign). Instead I decided to impose termination (with opportunity to resign) under section 69(4)(b) of the GSE Act. In the circumstances I did not consider it appropriate to impose lesser misconduct on Mr Dickson that was not termination of employment under section 69(4)(c)-(g) of the GSE Act due to the seriousness of the Finding of a Misconduct. …
50. The full reasons for my decision were set out in detail in the written termination letter to Mr Dickson. In summary, while I considered Mr Dickson's mitigating circumstances, I found the following outweighed those matters:
(a) The nature of the offence - Mr Dickson's role as a Correctional Officer required him to supervise offenders, some of whom were convicted and sentenced to imprisonment for violence related offences. The nature of the offence Mr Dickson was found guilty of was a form of assault, the same offence for which some inmates at the Wellington CC have been convicted. This affected my confidence in Mr Dickson to lead by example and to act as a role model to offenders for behaviour change;
(b) Standards of conduct - Mr Dickson had obligations in his role as a Correctional Officer regarding how he acted within the workplace and his conduct fell seriously short of those standards. In particular, the code of conduct provides harassment will not be tolerated by CSNSW in any form. … The nature of the Finding of Misconduct involved:
(i) a young female contractor … at the Wellington CC;
(ii) circumstances where [the contractor] was alone with Mr Dickson and in a vulnerable position on a ladder which she could not easily leave the area;
(iii) conduct by Mr Dickson that was an unwelcome physical advance to [the contractor] by pressing his body up against her without permission that prevented her from descending the ladder; and
(iv) conduct that [the contractor] reported caused immediate pain in the area she was touched at the time and also made her feel distressed and fearful for her safety. She reported the assault immediately to her supervisors, CSNSW and subsequently NSW Police.
(c) The reputational Risk to CSNSW - The misconduct reflected poorly on CSNSW. There was a risk that the Finding of Guilt had the potential to negatively affect the reputation of CSNSW and public confidence in correctional officers, including for example, because of the nature of the offence and because the conduct was assaulting a female colleague in the workplace." [16]
[Emphasis in the original.]
In my view, it does not matter whether the termination was limited to the assault and the finding of guilt or whether the other matters were part of the reasons.
In the former case, the dismissal would be unjust or harsh or both for being excessive as a consequence of the misconduct.
In the latter, it remains possible that the dismissal would be harsh, unjust or both for the same reason but, most importantly, it would unequivocally be unreasonable for the matters, beyond the misconduct as such and the guilty plea, never having been put to the applicant and thus having had an opportunity to respond.
Based on the evidence before the Commission, it is clear that the dismissal was limited to the applicant being guilty of common assault and not based on that flowing onto the Code of Conduct, Bullying and Harassment Policy or any other matter.
This conclusion is, in my view, inevitable because:
1. This is what the letter of 28 July says;
2. Despite the submissions of the respondent, this is what I consider the letter of 24 August says; and
3. This is what Mr Smith said to the applicant in the meeting at which the applicant exercised his opportunity to respond.
In my view, this is reinforced by the errors in the letter of 13 July. The respondent's decision maker was so committed to dismissal based on the finding of guilt that he did not crosscheck the letter with the Justice Link summary which had the correct details.
Indeed, the errors in the 13 July letter demonstrate that the applicant's submission, that the respondent had a closed mind as to the fact of guilt to common assault being of itself a basis for dismissal, and no serious consideration would ever be given to the specific circumstances of the case, is correct.
The totality of the circumstances may have justified the dismissal, but the respondent did not put to the Commission any basis or evidence those facts were part of the decision, let alone that they were put to the applicant. For abundant caution, this is not a finding that the totality of the case would have justified the dismissal. That case simply was not put before the Commission.
The question is therefore whether the finding of guilt and the facts agreed at the Local Court warrant dismissal.
The decision maker had only a 100-word summary of the outcome of the Local Court. He did not have a transcript of Magistrate Olischlager as to sentencing remarks.
I have referred to these remarks earlier, and whilst some of them emphasise that a conviction for common assault is a serious matter, which should not be gainsaid, the bulk of the Magistrate's remarks are clearly about the assault being at the very low end of common assault. I note that Mr Smith, and I do not make this as a great criticism, talked about it being at the low end. The magistrate specifically said the "very" low end.
The Commission finds that the assault did not warrant dismissal. The dismissal is, accordingly, unjust and harsh for this reason.
Given the foregoing, the dismissal is also unreasonable in that the respondent's decision maker, on the balance of probability, did not genuinely consider matters put in response by the applicant.
I am not persuaded that the applicant was denied procedural fairness by being denied some possible steps within a potentially longer process. I note here the respondent's submissions on reg 40 of the GSE General Rules 2014.
It was clear to the applicant the reason for his dismissal, and he was given an opportunity to respond to that reason.
As already set out above, I would have come to the opposite conclusion had I found that the matters other than the plea of guilty to common assault, as such, were part of the reason for dismissal.
Given the above, it is almost a given that the dismissal was harsh for its consequences on the applicant. I emphasise this is largely because I consider the dismissal harsh for the other reasons above.
Had the respondent put its wider case to the applicant and put all that coherently to the Commission, it is doubtful that the personal circumstances of the applicant would have made the dismissal harsh. The respondent did not do that.
I consider that the foregoing takes into account those parts of s 88 of the IR Act which could be relevant in this case and in particular 88(a), 88(b) and 88(d). I do not consider that paras 88(c) or (e) are relevant in this matter.
The dismissal of the applicant was harsh, unreasonable and unjust.
I have considered the submissions of the applicant and the respondent and I do not find the respondent's submissions persuade me as to reinstatement. Indeed, I agree with the submissions of the applicant. The primary remedy of reinstatement is, therefore, to be applied.
I can see no reason why the applicant should not benefit from an order for payment of lost wages since his dismissal, and for continuity of service. I do, however, note that the applicant has given evidence of some employment in the meantime, and I do not believe that the applicant should get a windfall from that.
I propose that the parties confer on short minutes of order that would reflect this outcome for two reasons: That will give them an opportunity to consider a date on which it will be possible for the applicant to recommence his employment, and it will give the parties a chance to discuss what the applicant has earned in the meantime and how that should be deducted from a restitution of the wages lost by the applicant since 4 September 2022. Those orders should contain that the period between 5 September 2022 and the date on which the employment practically recommences should count as service by Mr Dickson for all purposes.
If the parties cannot agree the terms of the short minutes of order within a reasonable time, then they should seek to have the matter relisted so that those matters can be determined.
C Muir
Commissioner
[3]
Note: Small portions of the respondent's Summary of Case which were cited in the original, Ex Tempore, Reasons for Decision have been omitted from the published Reasons, as those portions referenced submissions on which the respondent did not rely and were expressly not part of the respondent's case at hearing.
[4]
Endnotes
Attachment MD-4 to Statement of Matthew Dickson, the Statement being Exhibit A1
Attachment MD-5 to Statement of Matthew Dickson, the Statement being Exhibit A1
Attachment MD-6 to Statement of Matthew Dickson, the Statement being Exhibit A1
Exhibit R4
Attachment MD-10 to Statement of Matthew Dickson, the Statement being Exhibit A1
Applicant's outline of submissions filed 15 November 2022
Applicant's outline of submissions filed 15 November 2022
Applicant's outline of submissions in reply filed 8 February 2022
Western Suburbs District Ambulance Committee v Tipping (19570 AR (NSW) 273
Corrective Services NSW v Danwer [20131 NSWIRComm 61 at [21]: See also NUW (on behalf of Wayne Khan) v Cuno Pacific Pty Lid [2005] NSWIRComm 388; (2005) 146 IR 441 at [64] and Dept of Health v Perihan Kaplan [2010] NSWIRComm 65 at [25]-[32].
Wattie v Industrial Relations Secretary on behalf of the Secretary of the Dept of Justice (No 2) [2018] NSWCA 124 at 146. See also Sandilands v Industrial Relations Secretary (on behalf of Legal Aid NSW) (2018) 281 IR 175 at [14]-[16].
GSE Act, s 69(1)(d).
Respondent's summary of case filed 25 January 2023
Hollingsworth v Commissioner of Police (No 2) 88 IR 282 at 341, quoting Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192.
Corrective Services NSW v Danwer [2013] NSWIRComm 61 at [65]
Exhibit R3
[5]
Amendments
12 April 2023 - Correction made to Case title & Name of Respondent
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: 12 April 2023
Parties
Applicant/Plaintiff:
Dickson
Respondent/Defendant:
Industrial Relations Secretary in respect of Department of Communities and Justice