Eastwood v Industrial Relations Secretary on behalf of the Department of Communities and Justice

Industrial Relations Commission (NSW)|2020-12-15

DECISION

Scott Eastwood was employed as a First Class Correctional Officer in Corrective Services NSW ("CSNSW"), which falls under the auspices of the Department of Communities and Justice. He commenced employment with a predecessor to what is now CSNSW on 16 July 1990. He was thereafter employed continuously on a full-time basis. On 26 April 1995 he attained the rank of First Class Correctional Officer. He commenced working at Shortland Correctional Centre in either 2014 or January 2015, and remained there until his employment was terminated in the circumstances described below.
On 15 August 2019 Mr Eastwood was served with a letter dated 10 July 2019, signed by Majid Marashian, the A/Director - Custodial Corrections North of CSNSW. The letter informed Mr Eastwood of five allegations of misconduct against him, which Mr Marashian had decided to deal with as allegations of misconduct under s 69 of the Government Sector Employment Act 2013 (NSW) ("GSE Act"). Those allegations were as follows: "1. On 18 March 2019 at approximately 2pm, in the gatehouse at Shortland Correctional Centre, Correctional Officer Scott Eastwood said to colleagues words to the effect that during a recent holiday in New Zealand he 'went to a mosque and shot down Muslims' and 'if Muslims want to come to Australia and live there is only one place for them in the ground'. These comments are in breach of that Part 4.1 of the Justice NSW Code of Ethics and Conduct which relevantly requires an employee to engage in personal and professional conduct that upholds the reputation of the Department. 2. On 18 March 2019 at approximately 5.30pm Correctional Officer Scott Eastwood covered the camera lens of a camera in the monitor room at Shortland Correctional Centre while on duty there. He did not at the time of handover tell the officers who took over from him on the next shift that he had done this. These actions are a breach of that part of Part 4.1 of the Justice NSW Code of Ethics and Conduct which requires an employee to apply the Department's policies and procedures and be accountable for actions and decisions made. 3. On 18 March 2019 at Shortland Correctional Centre Functional Manager of Security Scott Powell directed Correctional Officer Scott Eastwood to complete before ceasing work a report about CO Eastwood's work activities that day. CO Eastwood did not complete the report in the time required or at all. This omission is a breach of that part of Part 4.5 of the Justice NSW Code of Ethics and Conduct which requires an employee to comply with lawful directions. 4. On 16 May 2019 at approximately 9.45pm in the clinic at Shortland Correctional Centre Correctional Officer Scott Eastwood made a rude gesture to a monitor camera by raising his hand with his middle finger raised. This conduct is a breach of the Justice NSW Code of Ethics and Conduct which at paragraph 4.5 relevantly states that employees are expected to carry out their duties in a professional manner. 5. On 16 May 2019 at approximately 10pm in the clinic at Shortland Correctional Centre Correctional Officer Anja Riley and Correctional Officer Scott Eastwood had some short conversations. During these conversations CO Eastwood used words of the substance of 'Go home then you cunt' and 'don't threaten me you cunt just go home' and 'fuck off cunt'. This conduct is a breach of the Justice NSW Code of Ethics and Conduct which at paragraph 6.3.1 relevantly states that employees must use courteous and respectful language in their interactions with colleagues and that coarse and obscene language [is] inappropriate in any Departmental workplace." ("Allegations")

Regulatory context of Mr Eastwood's employment

Mr Eastwood was employed in the Public Service under the GSE Act. Section 7 of the GSE Act relevantly provides as follows: 7 Government sector core values The core values for the government sector and the principles that guide their implementation are as follows - Integrity (a) Consider people equally without prejudice or favour. (b) Act professionally with honesty, consistency and impartiality. (c) Take responsibility for situations, showing leadership and courage. … Trust (a) Appreciate difference and welcome learning from others. (b) Build relationships based on mutual respect. (c) Uphold the law, institutions of government and democratic principles. … Accountability … (b) Take responsibility for decisions and actions. … (d) Observe standards for safety. … ("Core Values")
As at March and May 2019, Mr Eastwood's employment was covered by the Crown Employees (Correctional Officers, Department of Justice - Corrective Services NSW) Award ("Award"). The Award provided: "24. Professional Conduct … (ii) Officers shall perform their duties diligently, impartially and conscientiously to the best of their ability by complying with the CSNSW Code of Conduct in the performance of their duties. (iii) All officers will be professional in their conduct with the public, other staff and inmates. … 25. Equity of Employment … (ii) Officers with supervising responsibilities shall ensure that all staff under their supervision are treated equitably and without bias or prejudice."
At the time of the termination of his employment, the title of the award applying to Mr Eastwood was the Crown Employees (Correctional Officers, Department of Communities and Justice - Corrective Services NSW) Award. It contained the same provisions as reproduced at [16], save that in cl 24(ii) the revised award referred to "the Department of Justice Code of Ethics and Conduct Policy" in place of with "the CSNSW Code of Conduct".
In the Secretary's Amended Outline of Submissions filed on 2 December 2020 ("Secretary's Submissions"), reference was made to a document described as "Corrective Services NSW - Guide to Conduct and Ethics 2010 edition". This was stated to be a "statutory instrument" [1] which was "taken into account as part of the regulatory context within which the appellant was employed with CSNSW when the findings of misconduct were made and disciplinary action was taken". [2] That document is not in evidence.
The Allegations refer to the "Justice NSW Code of Ethics and Conduct". No document with that title is in evidence.
Mr Eastwood did not challenge the existence of a document of the kind referred to in the Allegations or the Secretary's Submissions. Nor did he suggest that no such document applied to him in his employment at CSNSW. While it is not possible to be certain, I have assumed that the documents referred to at [18] and [19] are relevantly one and the same. For convenience, I will refer to this as the "Code of Conduct". Further, in the absence of controversy I have also assumed that its terms are as described in the Allegations, namely: 1. Part 4.1 requires an employee to: 1. engage in personal and professional conduct that upholds the reputation of the Department; and 2. apply the Department's policies and procedures and be accountable for actions and decisions made; 1. Part 4.5 provides that: 1. employees are required to comply with lawful directions; and 2. employees are expected to carry out their duties in a professional manner; and 1. paragraph 6.3.1 provides that employees must use courteous and respectful language in their interactions with colleagues, and that coarse and obscene language is inappropriate in any Departmental workplace.

Applicable law and principles

These proceedings are brought under Ch 2 Pt 7 of the IR Act. By s 100C(2) of the IR Act, the Commission may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit.
In Marroun v State Transit Authority [2017] NSWCA 273 the Court of Appeal examined the Commission's jurisdiction under Ch 2 Pt 7. From that decision it is possible to derive the following principles: 1. An appeal under Ch 2 Pt 7 is a fresh hearing of the allegation of misconduct (or an administrative hearing de novo). (In Marroun it was common ground that the proceeding before the Commission was a fresh hearing: at [29]. The Court stated that a conclusion that an appeal under Ch 2 Pt 7 is a fresh hearing was supported by the decision of the High Court in Calman v Commissioner of Police (1999) 73 ALJR 1609; [1999] HCA 60: at [30]; see also [32] and [34].) 2. An appeal by way of fresh hearing means that the appellate body "stands in the shoes of" the original decision-maker. Where there is a specific charge or complaint before the employer, which has resulted in particular disciplinary action, it will be necessary for the Commission to consider that charge or complaint and, if it be upheld, determine what disciplinary action should be imposed: at [35]. In other words, the Commission is to engage in a two-step process: first, to determine whether the employee has engaged in the misconduct alleged; and second, if the employee has engaged in that misconduct, to determine what disciplinary action is to be taken: at [45]-[47] and [62]. 3. If the allegations of misconduct on which the original decision-maker relied are not proven to the satisfaction of the Commission, the Commission is obliged to allow the appeal: at [62]. 4. Generally, it is assumed that the appellate body has the same powers as the original decision-maker, no more and no fewer: at [35]. The appeal is "a fresh exercise of administrative power"; it is not the exercise of a different power for the first time: at [48], relying on Calman. 5. Post-decision events or conduct may be relevant to the consideration of penalty, but not to the consideration of the essential precondition to the imposition of a penalty, namely whether the disciplinary charge has been proven: at [56], citing Maritime Services Board v Murray (1993) 52 IR 455. 6. If the Commission allows the appeal, it may consider post-decision events or conduct in determining whether some lesser form of disciplinary action was appropriate: at [62] and [63].
The misconduct must be established on the balance of probabilities. As stated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2: "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. …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."
Mr Eastwood's employment was terminated under s 69 of the GSE Act, which relevantly provides as follows: 69 Misconduct - Public Service and other prescribed government sector employees (1) In this section: … misconduct extends to the following: (a) a contravention of this Act or an instrument made under this Act, … (3) The government sector employment rules may deal with the following: (a) misconduct by employees of government sector agencies, (b) the procedural requirements for dealing with allegations of misconduct by employees of government sector agencies (consistently with procedural fairness). (4) If, in accordance with those rules, there is a finding of misconduct by an employee of a government sector agency, the person who exercises employer functions in relation to the employee may take any of the following actions: (a) terminate the employment of the employee (without giving the employee an opportunity to resign), (b) terminate the employment of the employee (after giving the employee an opportunity to resign), (c) impose a fine on the employee (which may be deducted from the remuneration payable to the employee), (d) reduce the remuneration payable to the employee, (e) reduce the classification or grade of the employee, (f) assign the employee to a different role, (g) caution or reprimand the employee. …
In Denise McKay v Department of Family & Community Services [2018] NSWSC 44 Button J observed: "106. Secondly, it is true that the concept of misconduct is not defined in the GSE Act, and is in that sense open-ended. It is also true that the section extends the concept to a number of particular circumstances, without being exclusive in that extension. Nevertheless, I think that the nature of the extension is important: it suggests that Parliament regarded the concept of misconduct as not otherwise encompassing those circumstances without the extension. …" (Emphasis in original)
In considering the meaning of misconduct for the purposes of s 69 of the GSE Act, the following observations by Smithers and Evatt JJ in North v Television Corporation Ltd (1976) 11 ALR 599 at 608-609 are apposite: "It is of assistance to consider the expression 'misconduct' by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression 'misconduct' as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment. This situation would arise if there were conduct inconsistent with the fulfilment of the express or implied conditions of service. It is conduct of that kind which will justify dismissal at common law. And it was decided by a Full Bench of this Court in Crosland v John Fairfax and Sons Pty Ltd, supra, that the test of misconduct for the purposes of a clause identical with cl 10(e) was the same as the test of misconduct at common law. No reason has been advanced to challenge the validity of this decision. We respectfully find ourselves in agreement with it. For purposes of the application of the common law principles to the facts of this case, the remarks of the Master of the Rolls in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 at 287 and 289 , are in point. He said: - To my mind the proper conclusion to be drawn from the passages which I have cited and the cases to which we were referred is that, since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. … I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is 'wilful'; it does (in other words) connote a deliberate flouting of the essential contractual conditions."
In determining whether Mr Eastwood engaged in misconduct I have borne these observations in mind.
Section 69 of the GSE Act allows for a range of outcomes if an employee is found to have engaged in misconduct, ranging from termination of employment to a caution or reprimand. This context indicates, consistent with North, that "certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination". If action is to be taken under s 69(4)(a) or (b), it will be necessary to demonstrate that the misconduct in which the employee engaged warrants termination of employment.

Allegation 1

It is alleged that at approximately 2.00pm on 18 March 2019, in the gatehouse at Shortland Correctional Centre, Mr Eastwood said to colleagues words to the effect that "he went to a mosque and shot down Muslims" and "if Muslims want to come to Australia and live there is only one place for them in the ground".
Mr Eastwood admitted to making the first statement. He described it as "a poor attempt at black humour" which he accepted was "entirely inappropriate". [3] It is relevant to observe that the statement was made within a few days of the terrorist attacks on mosques in Christchurch on 15 March 2019.
In relation to the second comment attributed to him, Mr Eastwood denies using the word "Muslims", but says he used the word "extremists". That is, he claims to have said "If extremists want to come to Australia and live, there is only one place for them, in the ground." [4]
At the time, two contractors from Honeywell Building Services, Denishan Govender and Lachlan Peters, were in the gatehouse installing computers as part of an upgrade to the security system at the Shortland Correctional Centre. Each deposed that Mr Eastwood said: "There may be some good Muslims, if they want to come to Australia and live then there is only one place for them…in the ground…"
Following the incident Messrs Govender and Peters discussed what they had heard and eventually resolved to report the matter to Patrick Bolan, "one of the higher-ranking officers at Shortland". [5] This was done via emails sent to Mr Bolan by Mr Govender on 18 March 2019 and by Mr Peters on 19 March 2019. Their emails and their statements in these proceedings attribute to Mr Eastwood the words described at [32] above.
I have some reservations as to the extent to which Mr Govender and Mr Peters are properly to be regarded as corroborating each other's evidence. They had discussed the incident prior to leaving the Shortland Correctional Centre on the day. They had a telephone conversation that night during which they discussed the emails that they were intending to send to Mr Bolan. Under cross-examination Mr Govender accepted that he "wanted to make sure that [they] were both saying the same thing". [6]
Further, Mr Govender deposed that he had provided a copy of his email to Mr Peters to assist him in preparing his own. While Mr Peters denied having received such an email from Mr Govender, each witness described the words used by Mr Eastwood in identical terms, including the language and grammar. I find it difficult to accept that the adoption of such a unique formulation by each witness is reflective of truly independent recollections.
That said, Mr Govender and, perhaps less persuasively, Mr Peters each maintained under cross-examination that Mr Eastwood had used the word "Muslims" and not "extremists".
The Secretary submitted that during the interview on 2 March 2020 referred to at [10] above there was no reference to Mr Eastwood having used the word "extremists". To the contrary, Mr Bartle from the PSA was quoted as saying: "Mr Eastwood's admitted to pretty much everything here, he's not denying that it happened he's just saying that he, he was having a bad taste joke at the time…"
While the transcript of the meeting on 2 March 2020 makes no reference to Mr Eastwood having referred to "extremists", in his email to the PSA of 28 August 2019 (see [4] above) Mr Eastwood stated: "This conversation did take place in the Gatehouse, the whole conversation was about extremists on both sides and at no time did I state that all Muslims here should be dead and at no time have I travelled to New Zealand nor have I shot a Muslim."
In his evidence in these proceedings Mr Eastwood stated: [7] "14. Multiple correctional officers were expressing sentiments in similar terms to those attributed to me, in respect to both Muslim extremism as well as white, right-wing, extremism."
Neither Mr Govender nor Mr Peters could recall any dialogue of the kind described by Mr Eastwood. To their recollection, he was the only one talking. Mr Eastwood has not identified the other officers involved in the alleged conversation. At the hearing he could not recall who they were or what they said. I am not persuaded that after an attempt at humour by Mr Eastwood, which he conceded was "entirely inappropriate", the conversation transformed into a dialogue between he and his colleagues as to the evils of extremism.
I am satisfied that Mr Eastwood used the words attributed to him in the Allegation.
Mr Eastwood's statements are clearly racist, if not Islamophobic. That said, there was no evidence to suggest that Mr Eastwood had expressed similar sentiments at any other time or that he had treated co-workers or inmates differently on the basis of their race. I am left with the impression of someone seeking to draw attention to themselves, and perhaps derive cheap laughs, by making outrageous and shocking remarks.
Mr Eastwood's behaviour was inconsistent with the Core Values, particularly as he failed to act professionally or to build relationships based on mutual respect. In the context of the Code of Conduct he failed to engage in personal and professional conduct that upholds the reputation of the Department. I find that Mr Eastwood engaged in misconduct.

Allegation 2

It is alleged that on 18 March 2019 Mr Eastwood covered the lens of the security camera in the monitor room at the Shortland Correctional Centre. These actions were said to be a breach of Part 4.1 of the Code of Conduct "which requires an employee to apply the Department's policies and procedures and be accountable for actions and decisions made".
Mr Eastwood admitted that he had covered the camera, but claimed to have done so for an operational reason. He stated as follows: [8] "17. I accept that I covered the camera lens of a camera in the monitor room of SCC. 18. Within the gatehouse of SCC, there are two computer screens displaying multiple camera feeds. The left computer screen displays feeds from the cameras from the vehicle dock. The right computer screen displays feeds from the monitor room, visitor area, gatehouse entry and reception area. 19. The officer within the gatehouse is able to scroll through the various camera feeds displayed on the screens. Each screen displays multiple camera feeds at any given moment, approximately 6-8 feeds. 20. On 16 March 2019 [sic], the camera feed for the monitor room camera was not being displayed on the gatehouse screens. I attempted to scroll through the camera feeds, but I was unable to locate the monitor room camera feed. 21. At approximately 5pm, I was contacted by CO Dayle Mickle in the monitor room, and we had a conversation to the following effect: Mickle: Can you relieve me, I need to have my meal break? Eastwood: Yes, I am coming. 22. Shortly after my arrival in the monitor room, CO Jason Bower entered the monitor room. The monitor room during C watch is a two person post. 23. As I was only relieving in the monitor room for a short period of time, and as I was unable to locate the monitor room feed from the gatehouse which was causing me some frustration, I covered the monitor room camera. I covered the camera with a piece of paper and sticky tape. 24. My reasoning for covering the camera was that a camera feed displaying a black screen would be easier to identify from the various other camera feeds being displayed on the gatehouse monitor screens. … 26. Shortly after I covered the monitoring camera, CO Mickle returned to the monitor room and I returned to the gatehouse. I forgot to mention to CO Mickle that I had covered the monitor room camera. 27. Upon my return to the gatehouse, there was a Corrective Services NSW ('CSNSW') vehicle waiting to enter, or to depart, the gaol. In the process of seeing to this vehicle, I forgot that I had covered the monitor room camera. …"
Mr Bower was present when Mr Eastwood covered the camera. He deposed that he "did not say anything". [9]
At approximately 6.00pm on the same day, that is, about an hour later, Scott Powell, the Functional Manager, Purpose Day at the Shortland Correctional Centre was informed that a system check had revealed an issue with the camera in the monitor room, which "appeared to be covered". [10] Mr Powell called Mr Eastwood to ascertain who was rostered in the monitor room. At the end of that conversation Mr Eastwood immediately called First Class Correctional Officer Dayle Mickle, who was stationed in the monitor room, and asked him to take the paper off the camera.
Fergal Molloy, who at the time of preparing his statements in these proceedings was the Technical Security Manager, Custodial Infrastructure, Prison Bed Capacity Program, and Acting Manager of Security, Prison Bed Capacity Program, provided some evidence as to the installation of CCTV cameras in the Shortland Correctional Centre. He stated that they "are installed to protect the safety and security of staff". [11]
Mr Powell also gave evidence as to the importance to security of maintaining the integrity of the CCTV system.
Shortland Correctional Centre is a maximum security gaol. Even in the absence of the evidence of Messrs Molloy and Powell, which I accept, it could readily be presumed that cameras are installed to protect the safety and security of not only custodial staff, but inmates as well. To cover a camera, albeit with an intention that it be done briefly and for a stated operational reason, compromises the integrity of the safety system. These principles are captured by the Shortland Correctional Centre Local Operating Procedure, which was in evidence. While that document does not in express terms advise correctional officers against covering security cameras, it frankly does not need to. It is, to use the vernacular, a "no brainer".
At the same time, Mr Eastwood offered an explanation for covering the camera. That he might have been experiencing difficulties in accessing footage through the security system is quite feasible, given that the Centre was at that stage going through a significant upgrade of its security system. Mr Powell stated that there had been "a lot of teething problems" with the new system. [12]
Further, Mr Molloy described Mr Eastwood's explanation as "a very unusual way of identifying a camera" [13] . He did not suggest that the method adopted by Mr Eastwood would not have worked to resolve his problem.
The Secretary sought to challenge the version of events put forward by Mr Eastwood on the basis that when he was first asked by Mr Powell whether he had covered the camera, he did not offer the explanation to Mr Powell the one that he now relies on. I have taken that into account.
Further, the Secretary relied on the fact that when Mr Eastwood first admitted to having covered the camera he said words to the effect "I don't like being watched". [14] While Mr Eastwood could not recall having use those words and did not believe that he did, Mr Powell was adamant during the course of his oral testimony that those words had been used. I prefer Mr Powell's evidence in this regard.
Even so, the Allegation does not ascribe a motivation to Mr Eastwood. It does not accuse him of covering up the camera for the purpose of avoiding scrutiny. Mr Eastwood categorically denied covering the camera for that purpose. Further, Mr Powell did not see Mr Eastwood's comment "as a massive issue". [15]
To the extent it is relevant in the context of the Allegation as made, the Secretary has not established that Mr Eastwood covered the camera for an ulterior purpose. Even accepting that Mr Eastwood told Mr Powell that he did not like being watched, it does not necessarily follow that his explanation for his conduct on the day is completely lacking in substance.
Mr Eastwood compromised the integrity of the safety system of a maximum security gaol. This was in breach of the Core Values, in that Mr Eastwood did not "observe standards for safety".
Mr Eastwood's conduct was also in breach of relevant procedures, which in turn was in contravention of Part 4.1 of the Code of Conduct as described at [20(1)] above. Although Mr Eastwood readily admitted on the day that he was the one who had covered the camera, he did not accept at the hearing that his actions created a safety risk. This suggests a lack of accountability "for his actions and decisions he has made".
I am satisfied that Allegation 2 is made out. I find that Mr Eastwood's conduct amounted to misconduct.

Allegation 3

Allegation 3 flows from the facts asserted in Allegation 2. It is alleged that Mr Eastwood failed to comply with a direction from Mr Powell given on 18 March 2019 that before ceasing duty that day Mr Eastwood was to prepare a report into his conduct in covering the camera in the monitor room.
There is no dispute that on 18 March 2019 Mr Eastwood was told by Mr Powell that he would be required to prepare a report. There was, though, some question as to whether Mr Powell had directed Mr Eastwood to complete the report before he ceased duty that day.
In his statement in these proceedings Mr Powell made no reference to having told Mr Eastwood to complete the report before ceasing duty on 18 March 2019. He accepted under cross-examination that he had not done so, albeit with some later prevarication. Conversely, however, Mr Eastwood accepted under cross-examination that he had been asked to complete the report before ceasing duty. Two written communications sent by Mr Powell to Mr Raper on 19 March 2019 made express reference to Mr Eastwood having been directed to submit his report "before ceasing duty". On balance, I accept that such a direction was made.
Mr Eastwood's response to the Allegation may be summarised as follows: 1. He accepted that he did not complete the report as directed. 2. On the evening of 18 March 2019 he received a call from his wife, who was at that time experiencing an at-risk pregnancy, saying that she may need to go to the hospital. Mr Eastwood called Senior Correctional Officer Wayne Leatham, who was the night senior that evening, and told him that he needed to go home due to a family emergency. 3. Mr Eastwood stated that as a result of these and other issues in his personal life, including his brother being diagnosed with terminal lung cancer, he forgot about the report. 4. He received no follow-up request from Mr Powell regarding the report. 5. In or around May 2019 he recalled that he had not completed the report and so he approached Mr Powell. He said to Mr Powell that he needed to speak about the report, to which Mr Powell replied: "Yeah, right-oh mate, another time." 1. Based on this exchange Mr Eastwood inferred that it was not necessary to complete the report. The matter was not raised again until he received the Allegations.
The Secretary sought to challenge Mr Eastwood's explanation for leaving work early on 18 March 2019. There was a suggestion that he had made a statement to another employee as to his reasons for leaving which was inconsistent with that which was now offered. However, that employee was not called by the Secretary to give evidence in these proceedings, and the evidence otherwise relied on by the Secretary does not provide a sufficient basis on which to call into question Mr Eastwood's version of events.
Mr Leatham deposed that Mr Eastwood did not tell him that he was leaving work due to a family emergency, and in fact provided no reason for leaving. Rather, he simply said "I need to be relieved. I am going home." [16]
Mr Leatham deposed under cross-examination that he has known Mr Eastwood since he (Mr Leatham) first joined CSNSW. He considers Mr Eastwood a friend. Had Mr Eastwood made reference to a family emergency he would have followed him up to make sure that all was well. He said that Mr Eastwood himself had done the same for him when Mr Leatham's father passed away. Having had the benefit of seeing Mr Leatham give evidence, I accept his recollection of his exchange with Mr Eastwood on 18 March 2019.
However, this does not necessarily call into question Mr Eastwood's stated reasons for leaving work early that day. It was not greatly in dispute that Mr Eastwood was facing significant challenges in his personal life at the time. Mr Leatham's evidence goes no further than that Mr Eastwood gave no reason for leaving work. There is no suggestion that he was asked for one. On balance, I accept that Mr Eastwood left work early for the reasons he provided.
Mr Powell accepted that in May 2019 he had a conversation with Mr Eastwood in the terms described at [63(5)] above. He said that by that time Mr Eastwood's conduct had been referred to the Professional Services Branch and so he "believed it best not to engage Mr Eastwood". [17]
The facts alleged in Allegation 3 are not contested. To that extent it is substantiated. However, I am not satisfied that in all of the circumstances the Secretary has established that Mr Eastwood's conduct amounts to misconduct.

Allegation 5

It is convenient to deal with Allegation 5 next. As will be seen, Allegation 4 arose out of the investigation by CSNSW into the matters alleged in Allegation 5.

The events of 16 May 2019

It is alleged that on the evening of 16 May 2019 Mr Eastwood had an exchange with Correctional Officer Anya Riley, during which he said words to the effect "go home then you cunt", "don't threaten me you cunt just go home" and "fuck off cunt". Although Mr Eastwood stated that he could not recall using those words, he ultimately accepted that he had done so.
At one level this might be sufficient to dispose of the matter. However, the context in which Mr Eastwood swore at Ms Riley is relevant.
The evidence discloses two broad, and competing, versions of the events of 16 May 2019. Detailed evidence was called by both parties as to what transpired that evening. Given the precise and limited terms of Allegation 5 itself, and that the conduct is admitted, it is to my mind unnecessary to traverse all of that evidence with a view to determining precisely what occurred. The two accounts of the incident are necessary only to provide context to the Allegation.
In broad terms, Ms Riley provided the following version of events: [18] 1. She arrived at the Shortland Correctional Centre approximately 30 minutes before the start of her shift. On her arrival she was asked to deliver some paperwork to Mr Eastwood, who was then in the Clinic. 2. When she arrived at the Clinic she found Mr Eastwood talking to Casual Correctional Officer Joshua Bulow. Immediately on her arrival Mr Eastwood said "Don't bring that thing in here cunt." Mr Bulow said "Are you deaf, dumb or stupid, don't leave that in here cunt." 3. She initially took this to be banter, which did not offend or concern her, until "it became taunting and bullying". 4. After enduring this for some time, she was upset and feeling unsafe. She said under her breath "I'm really tired, I should have gone home sick." Mr Eastwood responded "Fuck off then cunt - fuck off home go home now". 5. The exchange in the Clinic lasted for 30 minutes. 6. She went to the Reception area of the Shortland Correctional Centre and began typing up a report into the incident, to be sent to Mr Powell by email. While she was there she was accosted by both Mr Bulow and Mr Eastwood, the latter of which said "are you still here cunt". 7. Feeling uneasy, she completed the report in a rush and left the Centre. 8. On her way home, concerned that the email to Mr Powell may not have gone through, she completed a second report which was sent to Mr Powell by email that night.
In contrast, Messrs Eastwood and Bulow disputed that they had used the words described by Ms Riley at [74(2)] above. They stated that there had been banter between themselves, but not Ms Riley, as to who would be directed to work in the Clinic. It seemed to be accepted that this was one of the less favoured work stations for that shift. Both Mr Eastwood and Mr Bulow stated that Ms Riley said words to the effect that she would not work in the Clinic and that if she were directed by Mr Eastwood to do so she would go home sick. Mr Bulow described Mr Eastwood as responding "okay, fuck off home then cunt".
First Class Correctional Officer Matthew Gullo was present in the Clinic for some of the time that Ms Riley was there. He also deposed that Ms Riley said words to the effect that she would go home sick if she were directed to work in the Clinic, to which Mr Eastwood stated "Well fuck off then, cunt."
Later during the shift Mr Bulow prepared a report into the incident. In that report Mr Bulow stated: "No sooner had he finished this sentence Anja said 'I won't be in here.' When Scott asked why, she replied with 'you put me in here and I will go home sick.' I was absolutely speechless when this was said in a very serious tone. Scott then said 'well if that's the case, you can go home then and I will call someone else in' to which she agreed. While walking away, she turned to Scott and said 'you can let the boss know why you sent me home. I won't take shit from you Scott. You know better.' Scott replied 'don't you threaten me you cunt, just go home. I will tell the boss you threatened to go home sick.'"
The evidence included CCTV footage of the Clinic at the time of the exchange between Mr Eastwood and Ms Riley. The footage has no audio. It is eight minutes long. It seemed to be accepted that Ms Riley had been in the Clinic for only a couple of minutes before the footage commences. It shows Ms Riley leaving the clinic. She said that she returned briefly to collect some papers which she had promised to drop off for a colleague, but even allowing for that the footage does not reveal an exchange lasting 30 minutes.
For the first three and a half minutes of the footage Ms Riley is seen to be smiling, laughing (occasionally heartily) and conversing with the other officers. When she was shown the footage Ms Riley stated that it revealed her to be clearly nervous, engaging in nervous laughter and "hugging" the counter in the Clinic. That is not how her behaviour on the footage comes across.
However, it is clear that at about three minutes and 30 seconds into the footage there is a change in attitude. Ms Riley's body language and facial expressions change and she appears tense and uneasy. While she smiles when some nurses leave the Clinic and when Mr Eastwood raises his middle finger to the camera (see Allegation 4 below), it could not be said that from that point until the end of the footage Ms Riley appears to be anything other than uncomfortable. There is nothing in her demeanour to suggest that she had become belligerent or argumentative.
Without audio it is not possible to tell from the footage whether the change in Ms Riley's demeanour is the result of her becoming upset at being bullied and taunted, or is a response to Mr Eastwood reacting angrily to her threatening to go home sick if she is directed to work in the Clinic. Overall, the footage is inconclusive as to what transpired that evening.
As already stated, it is not necessary to determine whose version of events is to be accepted. Even on the evidence presented by Mr Eastwood, including the statements of Messrs Bulow and Gullo, the facts alleged in Allegation 5 are established.

The nature of the workplace

This Commission has recognised that in assessing whether an employee's conduct at work is acceptable or not, it is appropriate to have regard to the nature of the workplace. In Torres v Commissioner of Police [2017] NSWIRComm 1001 Murphy C observed: "66. It is not the function of this Commission to lay down rules, or even guidelines, as to what constitutes acceptable, or unacceptable, interpersonal interactions between employees in the workplace. Those are matters best left to the direct participants involved, the employer and the employees themselves. 67. The line between what could be regarded as acceptable conduct, and what is properly seen as unacceptable, will not always be easily drawn. The exact positioning of that line may vary significantly from workplace to workplace. What might be regarded as an acceptable interaction between workers on an off shore oil rig or in the crib room of an underground coal mine, might not be seen as acceptable in a more genteel setting, such as the staff room of a primary school. 68. Despite the inherent difficulty in drawing the line, there will be cases where the conduct of an individual employee falls so deeply within 'unacceptable territory' that it is difficult to contemplate that any reasonable person would regard the termination of that employee's employment for such conduct as unfair. The question before the Commission is whether or not this is such a case."
In Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis, and TNT Australia Pty Limited, trading as TNT Express [2002] NSWIRComm 46 at [136] Connor C observed that in that case it had to be "borne in mind that this industry involves men working in a transport yard, not a monastery". The Commissioner relied on the following passage from Jupiter General Insurance Co., Ltd v Ardeshir Bomanji Shroff [1937] 3 All ER 67 at 73-74: "Their Lordships recognise that the immediate dismissal of an employee is a strong measure, and they have anxiously considered the evidence with a view to determine the question whether the trial judge was right in his finding that the respondent was guilty of gross negligence, which, coupled with his conduct at the interview of December 21, was sufficient to justify his dismissal. On the one hand, it can be in exceptional circumstances only that an employer is acting properly in summarily dismissing an employee on his committing a single act of negligence; on the other, their Lordships would be very loath to assent to the view that a single outbreak of bad temper, accompanied, it may be, with regrettable language, is a sufficient ground for dismissal. Sir John Beaumont, CJ, was stating a proposition of mere good sense when he observed that in such cases one must apply the standards of men, and not those of angels, and remember that men are apt to show temper when reprimanded."
The former Industrial Relations Court of Australia recognised the need to have regard to "the 'give and take' atmosphere of a modern Australian workplace": Drury v BHP Refractories Pty Ltd (1995) 62 IR 467 at 474 (Wilcox CJ).
Under cross-examination, Mr Mickle had the following exchange with Ms Lowson, who appeared for Mr Eastwood: [19] "Q. So when Scott, Mr Eastwood, called you and said, 'Take that piece of paper off the camera,' do you remember what you said when you removed the paper? A. I think I told him a few things that I weren't real happy with him about, yeah. Q. And is it possible that as you took the piece of paper off the camera you said something like, 'What the fuck'? A. Very possible, yes. Q. And is it possible that you said something like that the next time you spoke to Mr Eastwood? A. Yes. Q. Something like, 'What the fuck were you doing?' A. Correct. Q. And in terms of the use of that kind of language, is that reasonably standard between correctional officers? A. Prison officers would put most truckies to shame. Q. And is that conversations between correctional officers, like, between yourselves? A. Yeah, yeah. Q. Not to inmates? A. No. Q. But if you're working in areas like the gatehouse or the monitor room, you might talk to each other in that - with that kind of language? A. Correct, yes. Q. You'd certainly use the word 'fuck'? A. Yes. Q. What other words? A. Use your imagination. Q. Right. A. Do I really need to? I mean, I've always been taught not to swear in front of ladies though. Q. There's female correctional officers? A. No, I generally try not to. Q. So other than when there's female officers present, any range of language is possible? A. Absolutely. Q. And is that always amongst officers of the same rank? A. No. Q. So would functional managers use that kind of language? A. Absolutely. Q. All of them? A. Yeah, I'd - yeah, yeah, yes. Q. When you're giving this evidence, you're not saying that every officer is the same. There might be some officers who don't swear as much as others? A. Correct. Q. There might be some that don't swear at all? A. Correct. Q. But they're not offended when they are in the presence of hearing this kind of language? A. No. Q. The male ones? A. Not at all, no."
Ms Riley deposed that despite being confronted with the language referred to at [74(2)] above, she "did not react to the behaviour thinking it was a joke and just banter". [20] This suggests that even the use of the words "fuck" and "cunt" in the workplace was not completely out of the ordinary, although this has to be considered in light of Ms Riley's description of Mr Eastwood as being "a really jovial sort of politically incorrect old-style officer". [21]
Mr Bulow stated that "[s]wearing is common in banter amongst correctional officers" [22] and that "[s]wearing is common among officers". [23]
First Class Correctional Officer Matthew Cadwallander, who was called to give evidence by Mr Eastwood, deposed that: [24] "16. Like all other correctional officers, Mr Eastwood swore with regularity."
The evidence reveals a workplace where swearing, even in quite extreme terms, is commonplace. This is not to endorse or condone such a culture. It is simply a relevant consideration when it comes to considering the seriousness with which Mr Eastwood's conduct is to be viewed.

Consideration

Notwithstanding the above evidence, the Secretary properly drew a distinction between "swearing generally" and "swearing at someone". Under cross-examination Mr Eastwood acknowledged the existence of such a distinction. To my mind that is what sets his conduct apart from the broader workplace culture disclosed by the evidence. Even on Mr Eastwood's case, he swore at Ms Riley in offensive terms and in anger.
Mr Bulow, who otherwise expressed support for Mr Eastwood's conduct on 16 May 2019, considered that for Mr Eastwood "to call Ms Riley a 'cunt' was pretty extreme". [25]
Mr Eastwood appears to have been aware on the night that he had crossed the line. He prepared a report on 16 May 2019 which made no reference to him having sworn at Ms Riley. He accepted under cross-examination that he tried to dissuade Mr Bulow from sending the report referred to at [77] above, out of a concern that he might get in trouble for having used the language it attributed to him.
Mr Eastwood further said that after a period of some reflection he had come to recognise that his conduct towards Ms Riley was inappropriate and that he had "acted like a pig". [26] This led to him apologising to Ms Riley later in 2019.
There was some dispute as to the timing of the apology, and in particular whether it was only offered after Mr Eastwood had received the Allegations. This gives rise to a question of whether he was motivated to apologise solely as a result of self-reflection. Ultimately, I think this is a distraction. Mr Eastwood's description of his own behaviour towards Ms Riley, and the terms of his apology to her, suggest some contrition at least. More importantly, Ms Riley appears to have taken the apology as being genuinely offered and she accepted it. She stated in her oral testimony that from that time she would have had, and continued to have, no issues with working with Mr Eastwood.
There is an additional consideration. Mr Eastwood stated that the "prime factor" for his conduct on 16 May 2019 was "extreme personal stress resulting in [his] short temper". [27] He stated that his wife was still in the midst of an at-risk pregnancy with their son due to arrive any day. Further, his brother was suffering from terminal lung cancer, which resulted in his death only a few weeks after the incident.
Ms Riley acknowledged that when she accepted Mr Eastwood's apology she "knew he was under stress with some family issues". [28] Further, in her oral testimony she referred to a meeting she attended with Messrs Raper and Powell, during which there was some discussion regarding a workplace issue which Ms Riley considered was causing Mr Eastwood stress. She stated: "I know there were other matters and Mr Raper and Mr Powell let me know, because I did express to both Mr Raper and Mr Powell that Mr Eastwood was under a perceived or real stress. … So, I said that he was stressed and I had forgiven him and that maybe he should receive some help instead of having action taken against him…"
Ms Riley's acknowledgement that personal or work-related difficulties may have been causing Mr Eastwood stress, and her interest in seeing them addressed, does her credit. Her willingness to "move on" from the events of 16 May 2019 is commendable and, to my mind, a relevant consideration in determining these proceedings.
However, while personal or work-related stressors might have contributed to Mr Eastwood's behaviour, they do not justify or excuse it.
As observed by Murphy C in Torres v Commissioner of Police, what constitutes acceptable or unacceptable interpersonal interactions between employees in the workplace is to be determined at the workplace level. It follows that this Commission should not attempt to conclusively pronounce what expletives are or are not appropriate in any and all workplaces. Certainly, I would not accept as a starting proposition that all swearing in any workplace is necessarily inappropriate, much less that it constitutes misconduct. At the very least, such a proposition would be inconsistent with the authorities referred to at [83]-[85] above.
Whether a particular expletive is to be regarded as "coarse and obscene", as referred to in the Code of Conduct, is a matter of context, both societal and specifically in connection with the particular workplace. Gone are the days when an employee might expect to be dismissed for saying "It's a bit bloody hot keeping a man waiting so damn long": Farley v Lums (1917) 19 WALR 117.
At the same time, there remain certain words that are particularly charged. The word "cunt" is generally accepted as being at the extreme end of swearing. It is a term recognised to give offence, particularly to women, which was acknowledged by several of the witnesses. Whatever may be the culture at the Shortland Correctional Centre, I would not wish to be seen to be condoning the use of such a word in the "workplace banter" between correctional officers.
However, the language directed by Mr Eastwood to Ms Riley was not in the nature of banter. His choice of language, made worse by being directed at a subordinate in anger, was inexcusable in the context of any workplace.
What further exacerbates the seriousness of the conduct is that on the evening of 16 May 2019 Mr Eastwood was the night senior. He described the duties of the afternoon or night senior as "managerial duties" and that in general terms the afternoon or night senior is "responsible for the operation of the gaol during the shift". [29] Mr Eastwood's conduct towards a subordinate employee fell well short of managerial.
I find that Allegation 5 is substantiated and that it amounts to misconduct.

Allegation 4

It was alleged that Mr Eastwood "made a rude gesture to a monitor camera by raising his hand with his middle finger raised". Once again, Mr Eastwood does not challenge the facts alleged against him. Also once again, his conduct, and the seriousness with which it is to be viewed, has to be seen in context.
In the CCTV footage of Mr Eastwood's exchange with Ms Riley referred to above, there is a moment - and it is literally a matter of a couple of seconds - when Mr Eastwood turns to face the camera and raises his middle finger. It was established beyond question to my mind that he was responding to a comment made over the radio by Mr Cadwallander, who was that evening stationed in the monitor room, in the nature of workplace banter. While there was a difference between Mr Eastwood and Mr Cadwallander as to the precise words that were used, there is no doubt that Mr Cadwallander was "baiting" Mr Eastwood in a good-natured way.
Mr Cadwallander stated that he took no offence to Mr Eastwood's gesture. Rather, in the context of workplace banter he "considered it an appropriate response to [his] comment". [30] Significantly, Ms Riley can be seen in the CCTV footage to smile broadly in response to Mr Eastwood's gesture.
I accept that in general terms, Mr Eastwood's conduct was not "professional". However, in the immediate context of the incident (that is, Mr Cadwallander's comment and Mr Eastwood's response) and, more particularly, the broader workplace context described at [83]-[90] above, I cannot see how CSNSW could properly have found that the conduct rose to the point of being misconduct.
The facts of Allegation 4 are not contested. To that extent it is substantiated. However, I am not satisfied that in all of the circumstances the Secretary has established that Mr Eastwood's conduct amounts to misconduct.

The Award

Mr Eastwood has largely admitted to the behaviour described in the Allegations, with the exception of whether he used the word "extremists" and not "Muslims" on 18 March 2019. I have considered this conduct in light of the terms of the Award reproduced at [16] above. I accept that Mr Eastwood failed to meet the requirements of those provisions. I have taken this into account in making my findings in respect of each of the Allegations, and in particular whether the conduct amounts to misconduct.

The letter of 20 April 2020

There are several matters arising from the letter from Ms Ferrett to Mr Eastwood dated 20 April 2020. Firstly, in her letter Ms Ferrett stated: "I note that you have not provided a reason for covering the camera on 18 March 2019 and there cannot be any reasonable explanation for having done so."
As stated at [10] above, it appears that by 2 March 2020 Ms Ferrett had received from the PSA Mr Eastwood's response to the Allegations. If that response was the document of 28 August 2019 referred to at [4] above, or replicated the terms of that document, Mr Eastwood had in fact offered an explanation, or albeit in a truncated form. In that document he had stated: "The camera/monitor had been changed the Monitor Room link had disappeared from the Gatehouse I was trying to fix it and I couldn't get it so in frustration I covered it, I know this is wrong and I forgot to uncover it when the officer returned." (Sic)
Ms Ferrett was not called to give evidence in these proceedings.
Secondly, in her letter Ms Ferrett stated: "In imposing this outcome, I am satisfied that your misconduct evidences clear breaches of the Anti-Discrimination Act 1977 on the basis of race and sex. I note also that your behaviour on 16 May 2019 could be characterised as bullying and harassment which exposes CSNSW to considerable risk of a claim under the Work Health and Safety Act 2011 for psychological injury."
It is clear on the terms of the letter that the allegations of breaches of the Anti-Discrimination Act 1977 (NSW) and of the risk of a "claim" under the Work Health and Safety Act 2011 (NSW) were material to Ms Ferrett's decision regarding the disciplinary action to take against Mr Eastwood. However, the letter does not explain how either Act has been breached. Importantly, none of the Allegations makes reference to either Act. Equally importantly, there is no evidence of Mr Eastwood having been invited to respond to the allegation that his conduct may have breached either Act and exposed either him or CSNSW to the risk of claims or prosecution. There was no reference to either Act in the "show cause" letter of 30 September 2019.
Finally, the letter gives rise to questions as to the basis on which CSNSW purported to terminate Mr Eastwood's employment. In her letter of 20 April 2020 Ms Ferrett "affirmed" the findings and reasoning set out in the letter from CSNSW to Mr Eastwood of 30 September 2019. While s 69(4)(b) of the GSE Act was not expressly referred to in that letter (or in the letter of 20 December 2019), it can be inferred that this is the provision on which CSNSW sought to rely from the reference to "termination with opportunity to resign". The Termination Letter expressly invoked s 69(4)(b).
Section 69(4)(b) empowers the employer to "terminate the employment of the employee (after giving the employee an opportunity to resign)". In her letter to Mr Eastwood of 20 April 2020 Ms Ferrett stated: "You are hereby directed to resign your employment from the NSW Public Service by tendering your written resignation to the Governor or other Executive Officer of Shortland Correctional Centre within seven days of receiving this letter. If you do not resign within seven days of receiving this letter, your employment will be terminated forthwith without further notice." (Emphasis in original)
I have some reservations as to whether, in purporting to invoke s 69(4)(b), an employer can direct an employee to resign. The language of that provision is to be contrasted with that of s 46(2) of the Public Sector Employment and Management Act 2002 (NSW), the predecessor to the GSE Act, which permitted a Department Head to take "disciplinary action" against an employee if he or she was of the opinion that the employee had engaged in misconduct. "Disciplinary action" was defined to include "directing the officer to resign, or to be allowed to resign, from the Public Service within a specified time".
To my mind, a direction of the kind contained in the letter of 20 April 2020 does not seem properly to be considered an "opportunity to resign". I am, however, conscious that this was not a matter raised before me and so I will take it no further.

Conclusions

I have found that Allegations 1, 2 and 5 have been substantiated and that they constitute misconduct by Mr Eastwood. While the Secretary has made out the facts alleged in Allegations 3 and 4, I am not satisfied that they amount to misconduct.
It is hard to fathom how any right-thinking person could find humour, however "black", in the comments Mr Eastwood made as described in Allegation 1. That he did so in the close aftermath of the Christchurch tragedy demonstrates a lack of empathy and taste.
By engaging in the conduct described in Allegation 2 Mr Eastwood compromised the integrity of the safety system of a maximum security gaol, albeit briefly.
Mr Eastwood's conduct towards Ms Riley, as described in Allegation 5, was insupportable. Even if Ms Riley had demonstrated insubordination, Mr Eastwood's angry response and choice of language cannot be condoned. Mr Eastwood described himself as having acted like a pig. I would not cavil with that description.
The comments made by Mr Eastwood on 18 March 2019 and 16 May 2019 were not simply inappropriate, but offensive. There is no place for such behaviour in the modern workplace, or indeed anywhere in which civilised people might assemble.

Appropriate disciplinary action

To paraphrase Murphy C in Torres v Commissioner of Police, it may be thought that no reasonable person would regard it as unfair if Mr Eastwood was dismissed for his conduct. However, simply because Mr Eastwood engaged in misconduct does not mean that the termination of his employment must necessarily follow.
In contrast to the moral righteousness or certitude which currently permeates social discourse, and the apparent prevalence of what is known as "cancel culture", the law has long recognised that termination of employment might be too severe a penalty, even where an employee has engaged in behaviour that would warrant their dismissal. For example, in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at 233 Watson J observed: "In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence."
In Corbeski v BlueScope Steel (AIS) Pty Limited [2006] NSWIRComm 1170 Connor C observed: "41. A single act of misconduct may be sufficient to justify summary dismissal, if it is serious enough and strikes at the heart of the contract of employment [Laws v. London Chronicle (Indicator Newspapers) Limited (1959) 2 All ER 285 and the Homebush Abattoir Case (1966) AR 371 at p.374]. But the incident in question, when measured against Mr Corbeski's lengthy and otherwise satisfactory employment, whilst it was clearly wrong, does not, in my opinion, strike at the heart of his contract of employment. A single act of bad temper does not usually give rise to grounds for summary dismissal. The matter must be assessed according to the standards of men, not angels [Jupiter General Insurance Company Limited v. Andeshir Bomanji Shroff (1937) 3 All ER 67 at pp. 73 and 74]." (Square parentheses in original)
There are a number of matters arising in this case that mitigate against the termination of Mr Eastwood's employment.
Firstly, Mr Eastwood was employed with CSNSW and its predecessors for almost 30 years. There is no evidence that he has even been the subject of disciplinary action as a result of his conduct or performance.
Of course, a lengthy period of employment is not a complete answer to allegations of misconduct. It is in fact a double-edged sword. A long-serving employee might be expected to be familiar with an employer's policies, procedures and expectations, particularly as the employee gains seniority over time. The employee may be less able to plead ignorance of any requirement that they are said to have breached. That said, a period of long and trouble-free employment, or "past good conduct", is more likely to stand in the employee's favour when determining the disciplinary action that should be taken against them.
Secondly, the risk of there being any repeat of the misconduct is low. There was no evidence to suggest that the conduct described in Allegations 1, 2 and 5 was anything other than aberrant. Mr Eastwood has expressed contrition for his behaviour and apologised to Ms Riley. For her part, and to her credit, Ms Riley accepted that apology and stated that she would have no issues with working with Mr Eastwood in the future.
In this regard it is of some consequence that despite management at CSNSW becoming aware of the events of 18 March 2019 and 16 May 2019 on the day they occurred, or at the latest the following day, Mr Eastwood was permitted by CSNSW to continue working his usual shifts and to perform higher duties on occasions. There was no change to his working arrangements before receiving the Termination Letter some 12 months later. This is somewhat inconsistent with the Secretary's position before me that given the gravity of Mr Eastwood's misconduct, no outcome other than his dismissal should be contemplated.
Thirdly, Mr Eastwood deposed as to his personal circumstances and the effect that the termination has had on him and his family. That evidence was succinctly summarised in the Secretary's Submissions as follows: "8. The appellant is the biological father of five children and has financial obligations in relation to seven children, each of whom are [sic] under the age of 18. The appellant's two eldest children live with their mother, but the appellant financially supports them. The appellant says that as at the date of his statement (October 2020) he was the sole bread winner for the five children who live with him and his wife, who is also a correctional officer. The appellant's wife, Jodie Golding, it appears returned to work part-time as an FCCO in November 2020 following the birth of her fifth child, Lachlan, on 28 May 2019. 9. After the termination of his employment, and in circumstances where Ms Golding was on extended maternity leave, the appellant and his family experienced financial hardship: the appellant accessed $10,000 from his superannuation fund and received fortnightly JobSeeker instalments of $1,013, which were reduced to $750 in late October/early November. Ms Golding received monthly payments of $50 in child support from her former husband. While the family was able to live rent-free in accommodation owned by Ms Golding's father, the appellant says that the family's monthly living expenses are approximately $500. The appellant has not been able to obtain alternative employment, despite having submitted a number of applications."
Mr Eastwood submitted: [31] "17. Mr Eastwood is 56 years old and lives in regional NSW. He has worked almost his entire adult life as a correctional services officer and has limited skills and experience in other occupations. His income supports several children and step-children, including dependents. He has been terminated from employment for serious misconduct, reducing future job opportunities. And with covid-19, opportunities for employment are likely to have contracted even further."
During closing submissions at the hearing I had the following exchange with Ms Douglas-Baker, who appeared for the Secretary: [32] "COMMISSIONER: Just on that, is the respondent's position that allegation 1, or 2, or 3, or 4, or 5 would warrant termination or is it the cumulative effect of all of them and particularly one and five? DOUGLAS-BAKER: I might get some instructions about that discrete point. Thank you, Commissioner. The primary position is that it's cumulative, but in terms of the most serious it's the respondent's position that one and five are the most serious. One is certainly extremely serious in the view of Corrective Services. I appreciate there was evidence from Mr Govender and Mr Peters that they'd never heard this kind of language or commentary in a correctional centre before so to that extent there's an element of isolation about it, but it's the extent of it. It's the extent to which it went on. It's the evidence that no-one else was participating and in my submission you would accept that, that that is a matter of significant concern. So while the primary position is cumulative, it's one and five that are regarded as the most serious and it's the respondent's position that, cumulatively, termination is justified, but certainly in relation to one and five, or even I think one alone, the position is that termination is justified in relation to that."
Whether Allegations 1, 2 and 5 are considered individually or cumulatively, I consider that termination of employment would be a harsh outcome in the circumstances of this case. This is not a determination that is made lightly and is made without in any way retreating from my observations at [122]-[125] above.
Equally, Mr Eastwood's misconduct calls for a significant sanction, reflecting its gravity. While Mr Eastwood will be restored to his employment, I do not propose to make any order for back pay. In addition, Mr Eastwood will be reduced in rank to "First Class Correctional Officer 1st year", with the intention that he return to the rank of "First Class Correctional Officer 2nd year and thereafter" 12 months after his return to duties. My orders in this regard are set out below.
As a final observation, I reiterate that the comments made by Mr Eastwood on 18 March 2019 and his language towards Ms Riley on 16 May 2019 were offensive and wholly inappropriate. They have no place in the modern workplace, if anywhere. My determination to impose disciplinary action short of termination seeks to strike a balance between sanctioning Mr Eastwood for the objective seriousness of his misconduct and the particular circumstances of this case, consistent with the legal principles guiding the exercise of my discretion. This decision should in no way be taken as an indication that this Commission in any way endorses the behaviour in which Mr Eastwood engaged, or that any other individual similarly misconducting themselves would not face a harsher penalty.

Orders

I order as follows: 1. the appeal is allowed; 2. the decision of the respondent to terminate Mr Eastwood's employment is set aside; 3. the respondent is to restore Mr Eastwood to employment, in the classification of First Class Correctional Officer 1st year under the Crown Employees (Correctional Officers, Department of Communities and Justice - Corrective Services NSW) Award; 4. Order (2) takes effect from Monday, 15 March 2021; and 5. Mr Eastwood's service is to be taken as not having been broken by virtue of his dismissal, but the period between 19 May 2020 and his re-employment pursuant to Order (2) will not count as service. Damian Sloan Commissioner

Endnotes

Secretary's Submissions at par 6
ibid. at par 7
Statement, Scott Frederick Eastwood, 16 October 2020 at par 12
ibid. at par 13
Statement, Denishan Govender, 22 July 2020 at par 17
Tcpt, 4 December 2020, p 29(27-30)
Statement, Scott Frederick Eastwood, 16 October 2020
ibid.
Statement, Jason Bower, 11 September 2020 at par 5
Statement, Scott Powell, 11 August 2020 at par 6
Statement, Fergal Molloy, 7 August 2020 at par 6
Tcpt, 4 December 2020, p 80(40-41)
Statement, Fergal Molloy, 5 November 2020 at par 3
Statement, Scott Powell, 11 August 2020 at par 6
Tcpt, 4 December 2020, p 99(25)
Statement, Wayne Leatham, 9 November 2020 at par 6
Statement, Scott Powell, 29 October 2020 at par 3
This summary is drawn from the Statement of Anja Riley, 12 August 2020, and from the Statement of Anja Riley, November 2020 at par 2. Quotes are reproduced verbatim.
Tcpt, 4 December 2020, pp 61(30)-62(49)
Statement, Anja Riley, November 2020 at par 2, setting forth a paragraph inadvertently omitted from her statement of 12 August 2020
Tcpt, 14 December 2020, p 59(10-11)
Statement, Joshua Grant Bulow, 16 October 2020 at par 14
ibid. at par 17
Statement, Matthew Brock Steven Cadwallander, 19 October 2020
Statement, Joshua Grant Bulow, 16 October 2020 at par 17
Statement, Scott Frederick Eastwood, 16 October 2020 at par 67
ibid. at par 64(a)
Statement, Anja Riley, 12 August 2020 at par 13
Statement, Scott Frederick Eastwood, 16 October 2020 at par 7
Statement, Matthew Brock Steven Cadwallander, 19 October 2020 at par 12
Appellant's Outline of Submissions, 2 December 2020
Tcpt, 15 December 2020, pp 108(43)-109(12) 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: 23 February 2021

Public Sector Employment and Management Act 2002(NSW)s 46

At a glance

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Decision date

Source

Judgment (17 paragraphs)

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Legislation Cited (5)

Cases Cited (11)

Cited By (6)