Ferns and Department of Corrective Services [2005] NSWIRComm 9

Freedom of Information Act 1989 LEGISLATION CITED: Industrial Relations Act 1996 Public Sector Employment and Management Act 2002

Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 Allison v Bega Valley Council (1995) 63 IR 68 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Bates v Gundagai District Services Club (unreported, Walton VP, Sams DP, Redman C, Matter IRC4710 of 1999, 14 April 2000) Blyth Chemicals Limited and Bushnell (1933) 49 CLR 66 Britton v Riverstone Public School (unreported, Schmidt J, Sams DP, McLeay C, Matter IRC5504 of 1999, 6 May 1999) Buckman v Burdekin (1998) 85 IR 415 Burke v McGirr (1995) 87 IR 54 Byrne v Australian Airlines (1995) 185 CLR 401 Clark v Pittwater RSL Club Ltd (1998) 84 IR 309 Claric 218 Pty Ltd t/as Sanity Music v Meldrum (1998) 91 IR 296 Concut Pty Ltd v Worrell and Anor (2000) 103 IR 160 D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 Day v Lumley Life Limited (1999) 90 IR 70 Franklins Limited v Webb (1996) 72 IR 257 CASES CITED: Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57 Little v Commissioner of Police (No.2) (2002) 112 IR 212 North v Television Corporation Ltd (1976) 11 ALR 599 Oswald v NSW Police Service (1999) 90 IR 42 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3 (1990) 35 IR 70 Hollingsworth v Commissioner of Police (1999) 88 IR 282 Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 Hunt v Hornsby Shire Council [2001] NSWIRComm 242 Police Service of New South Wales v Batton (2000) 98 IR 154 Shop Distributive & Allied Employees' Association v Jewel Food Stores (1987) 22 IR 1 St Vincents Hospital Sydney Limited v Harris (unreported, Peterson, Schmidt JJ, O'Neill C, Matter IRC5932 of 1997, 28 May 1998) 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 Transport Workers' Union of New South Wales (on behalf of Paul Robert Jasper) and Sutherland Shire Council [2004] NSWIRComm 26 Ward v Mobile Innovations [2002] NSWIRComm 287 Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 Wilson v Department of Education and Training (2000) 100 IR 1

HEARING DATES: 09/27/2004; 09/29/2004; 11/03/2004

APPLICANT: Mr J Pearce of Counsel

LEGAL REPRESENTATIVES: RESPONDENT Ms T Anderson of Counsel instructed by Mr F Gaha, Department of Corrective Services

• 55 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 9 February 2005 Matter No IRC04/2678 Craig Nathan Ferns and Department of Corrective Services Application by Craig Nathan Ferns re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 9

1 Mr Craig Nathan Ferns ('the applicant') was employed by the Department of Corrective Services ('the respondent') from 5 April 1999 until 19 August, 2004. Between 20 October 2000 and 19 December 2002, the applicant was employed as a drug dog handler - First Class Correctional Officer in the Department's Drug Dog Detection Unit ('DDDU'), based at Windsor.

2 The applicant was transferred to General Duties at Silverwater Detention Centre ('Silverwater') in December 2002 after assault charges were laid against him, following an off duty incident at Gallagher's Hotel, Parramatta. These charges were subsequently dismissed in the Local Court on 31 July 2003.

3 With the dismissal of the charges, the applicant sought a transfer back to the DDDU in August 2003. This transfer was refused. The applicant then proceeded on extended leave without pay. He informed his supervisors on 29 March 2004 that he would be willing and able to return to the DDDU on 14 April 2004 and intended to do so.

4 The Department replied to the applicant on 7 April 2004. He was informed that he had already been advised both verbally, and in writing, that he was not to return to the DDDU because of "other performance related issues," which had been considered by the Professional Conduct Management Committee ('PCMC') on 27 August 2003. He was directed to return to Silverwater on 14 April and told that a failure to do so would be considered a contravention of a lawful direction which may result in disciplinary action for misconduct.

5 The applicant regarded this directive as a constructive dismissal and noted in a letter dated 13 April 2004, that he had never been "given reasons for the determination by the PCMC of 27 August 2003." He advised that he would not be reporting to Silverwater. As a result, the disciplinary process commenced on 14 April 2004.

6 On 5 May 2004 the applicant lodged a claim pursuant to Pt 6 ch 2 of the Industrial Relations Act 1996 ('the Act'), alleging that he had been unfairly dismissed on 14 April 2004. As disciplinary procedures had been initiated pursuant to Part 2.7 of the Public Sector Employment and Management Act 2002, the respondent contended that the applicant had not been dismissed; constructively or otherwise.

7 The matter came before the Commission for conciliation and directions on 1 June 2004. It was clear at this time, that the disciplinary investigation was in its preliminary stages. In light of this, an adjournment application for two months was granted.

8 When the matter was re-listed on 2 August, the disciplinary inquiry had made a finding of misconduct, but had not yet determined a penalty. Notwithstanding this situation, the Commission tentatively set the matter for arbitration and issued directions for the filing of evidence.

9 The applicant was formally dismissed on 19 August 2004. The matter proceeded to hearing on 28, 29 September and 3 November 2004. Mr J Pearce of counsel appeared for the applicant and Ms T Anderson of counsel appeared for the respondent.

10 It is to be noted that an offer of settlement was made by the respondent at the commencement of the proceedings on 27 September 2004. The offer was that the applicant's dismissal would be rescinded if he was prepared to return to work at Silverwater. That offer was subsequently withdrawn when the respondent became aware that the applicant had been working for the Fire Brigade while on sick leave from the Department during 2003.

11 The applicant's case was thoroughly researched and meticulously prepared by his mother, Mrs Helen Ferns - even to the point of a number of Freedom of Information (FOI) requests. At various points in the long history of this matter, Mrs Ferns acted directly as her son's representative and was the author of much of his correspondence to the respondent.

12 As both counsel properly conceded, much of the evidence in this matter was uncontested. The bulk of the material tendered by the applicant related to the various exchanges of correspondence between himself and the respondent. The relevant material will be referred to during this decision. I intend to only refer to the evidence which is necessary to establish the factual matrix in this case and that evidence which will be necessary to underpin my later consideration and conclusions relating to the issues to be determined.

13 The 28 year old applicant presented details of his work history with the respondent which included various commendations for his high level of performance. He deposed that in December 1999 after submitting a report to the Deputy Governor of Long Bay Jail in relation to officers using and supplying drugs, he had received threats and was transferred to Silverwater for his safety.

14 The applicant also gave details of his training for the DDDU. He referred to the occasion of his last exam when he made a joke out of the questions and was required to resit the examination (which he passed). He was counselled about this matter.

15 When he commenced employment with the DDDU, the applicant was initially placed on probation due to an unacceptable sick leave record. He was issued with a car, a dog, a kennel, riot and dog equipment and a pager. His dog was required to reside with him at all times. The work involved travelling to various correctional facilities in New South Wales in order to assist in the detection of drugs on both prisoners and visitors. The applicant thoroughly enjoyed his work with the DDDU.

16 In his evidence, the applicant provided details of a number of incidents and his explanations for the incidents which occurred during his period of time with the DDDU. I shall list them in chronological order. 1 March 2001 - the applicant was put on report for arriving late for duty. He explained that his alarm had not gone off and he had not woken up in time. 2 April 2001 - the applicant was involved in a minor traffic accident when he backed into a pole whilst driving the Department's vehicle.

6 April 2001 - the applicant was put on report for arriving late for duty. He explained that he had suffered a migraine and had taken two Panadeine Forte which had caused him to sleep in.

25 April 2001 - the applicant was spoken to by the Executive staff about his involvement in the use of force on an inmate. The applicant claimed he had not been informed of this allegation until 20 May 2001. Following video viewing of the incident, he claimed that it was established that he had not breached procedures and had no case to answer.

29 April 2001 - the applicant was involved in a minor motor vehicle accident in the Department's vehicle. The repairs to the vehicle cost $3,000. The applicant claimed that the full extent of the damage had occurred before he took possession of the vehicle.

15 May 2001 - the applicant was questioned by the Deputy Superintendent in relation to an incident between himself and a member of the public at a service station in Seven Hills. However, the applicant had not advised the respondent of this incident. During the incident a man had screamed at him after nearly being hit by the applicant's vehicle. The matter was reported to the Police, but no action was taken. After the respondent became aware of the incident, it was recommended that he be formally counselled regarding his obligations in dealing with the public and that all future similar incidents must be reported to his supervisors immediately. (The applicant subsequently made inquiries about this incident with the Blacktown Police. The complainant had stated that the applicant had kneed him and had pushed him in the chest. However, video evidence did not support this allegation.) 4 June 2001 - the applicant reversed the Department vehicle into a tractor tyre, causing minor damage to the vehicle.

20 August 2001 - While the applicant's " temporary " appointment was made permanent, he was advised that any further instances of poor conduct and service would result in his tenure with the DDDU being terminated and his return to General Duties.

14 February 2002 - the applicant was observed on duty, out of uniform by Senior Correctional Officer, Matt Damaso. He had explained to Mr Damaso that all his uniforms were wet. As a result of this incident the applicant believed he was being victimised by Mr Damaso and was being humiliated by him in order to lower his morale. As a result, the applicant asked his supervisors for a meeting with Mr Damaso. Mr Damaso had responded in writing and denied speaking to the applicant in a demeaning manner or victimising him. The applicant later claimed his grievance was never acted upon by the respondent.

19 February 2002 - a report was prepared by Senior Correctional Officer, Troy Seychelles concerning an incident in which the applicant conducted a property search on a female visitor without another officer being present. This was contrary to procedure. Mr Seychelles claimed the applicant was verbally aggressive when he told him he would have to make a note of the incident and the counselling. In evidence, the applicant agreed he had been upset because he believed he was being " papered for everything he did ."

20 February 2002 - Senior Assistant Superintendent, Mr Wayne Creighton, prepared a report (for the second time) about the conduct of the applicant. In it Mr Creighton referred to earlier incidents and a new issue - namely that the applicant was arrested at a nightclub in Berry Street, North Sydney on 11 January 2002 for assaulting another patron. The applicant said he was never given an opportunity to respond to this report and, in particular, he denied the night club incident. Rather, he said that the Police had found that he was the victim of the assault. 23 February 2002 - Acting Senior Assistant Superintendent, Rick Newman conducted an investigation of the applicant's allegation against Mr Damaso. Mr Newman found no justification for the allegations and commented that the applicant had difficulty in following directions and prioritising his responsibilities. Mr Newman also found that he demonstrated a clear lack of ability to accept responsibility for his actions and when counselled or corrected by senior staff he became accusatory and unco-operative. Mr Newman believed that the applicant's behaviour was impacting on discipline and morale in the DDDU. 25 March 2002 - Deputy Superintendent Stuart James and Commander Ken Middlebrook met with the applicant and discussed a number of the previous issues. As a result, he was disciplined and placed on restricted duties for a month.

19 August 2002 - the applicant received a letter of appreciation from Regional Commander, John Klok in respect to his role as a facilitator in a training program.

October 2002 - the applicant requested on two occasions to have access to all his personal files. Mr Middlebrook denied access and noted that there were only two matters in his file which had required an interview with Mr Middlbrook.

On 29 November 2002 the applicant was involved in an altercation at Gallagher's Hotel, Parramatta. As a consequence, he was charged with common assault on 18 December. The applicant was arrested when he attended the Silverwater complex. He had found this humiliating and degrading and said he wasn't even allowed to convey his dog home. The applicant said that Mr Middlebrook had wrongly stated that he was charged with " maliciously inflicting grievous bodily harm and assault occasioning actual bodily harm ." In fact, he had been charged with common assault. 17 The applicant was asked why he hadn't reported the incident at Gallagher's Hotel as the person involved had mentioned he was a prison officer. He claimed that he was "scared" for his employment in the DDDU and did not have confidence in his supervisors. The applicant could not recall if he had been warned prior to this incident that he must report all incidents involving members of the public. This warning had arisen after the service station incident at Seven Hills in 2001.

18 On 19 December 2002 the applicant attended Silverwater to submit a report to Superintendent Maa about the Gallagher's Hotel incident. The applicant deposed that Mr Maa had said "Middlebrook wants you out of the Dog Unit and doesn't even want you in S and I." He was told he was to be transferred out of the DDDU. In oral evidence, the applicant agreed he did not object at the time. Mr Maa informed him that he was to be transferred and to select a correctional centre to be posted to. He chose Silverwater Detention Centre. In evidence, the applicant believed that he was not in a position to object and that he would be returned to the DDDU if he was found not guilty of the assault charge. The applicant then sought and was granted annual leave.

19 The applicant returned from annual leave and commenced General Duties at Silverwater on 20 January 2003. He did not find the work fulfilling. However, he said he was resigned to continue at Silverwater until the assault charge had been determined. The applicant said that he had a good relationship with the Governor of Silverwater, Bernadette O'Connor.

20 On 29 January the applicant submitted a request to undertake secondary employment with the New South Wales Fire Brigade on an "on call" basis. He attended training while his request was considered. Initially his request was refused, because of his sick leave record. Approval was subsequently given.

21 The applicant deposed that he had always ensured his duties at the Fire Brigade did not impinge on his work for the respondent. He found the Fire Brigade work exciting, challenging and fulfilling.

22 In cross examination, the applicant conceded that there had been a couple of occasions when he claimed sick leave from the respondent and had worked as a retained fire fighter. He claimed to have been under enormous stress and the work for the Fire Brigade was an "outlet for my stress" to take his "mind off things." He denied this conduct was dishonest.

23 The applicant was shown various entries from January to September 2003 (17 in total) in the occurrence book of the New South Wales Fire Brigade in which his name is recorded as having attended various incidents. The applicant could not recall these various occasions or whether he had applied for sick leave or carer's leave at the time. In re-examination the applicant said he could not recall whether he filled in a sick leave application on all occasions he was sick. He did not obtain a doctor's certificate on every occasion as there was no requirement to do so for periods of absence less then three days.

24 The applicant was recalled to give further evidence concerning his sick leave record and the documents produced relating to his applications for sick leave and occurrence book records of his work with the Fire Brigade. I note at this point that the applicant's evidence on these matters was vague and imprecise. He could not recall whether he was sick on particular days; whether he had attended certain doctors on particular dates; was unsure whether his signature appeared on sick leave application forms; was unsure whose handwriting might have appeared on the documents; was unsure of his rosters on particular days and could not recall how he had come to apply for FACS leave on one occasion. However, at least one of the examples (for 29 March 2003) indicated that the applicant's work for the Fire Brigade had not coincided with his roster for that day.

25 The applicant explained that around April 2003, he was regularly suffering from migraines caused by stress at work. He was directed to his sick leave records for 5, 6 and 7 April and his three short attendances for the Fire Brigade on these days. He explained that he would have been at home and he had responded to his pager. He said his migraine might have varied in length of time making him fit to attend for nine minutes with the Fire Brigade, but not fit to attend the jail for eight hours.

26 In further cross examination, the applicant could not recall calling in sick on 27 January 2003 when the record showed him attending fire drill training on 28 January. It was unclear whether the applicant's roster actually commenced at 10pm on 28 January and whether he had worked that day.

27 On 25, 26 and 27 April the applicant was sick, but he had attended an incident on 27 April. He suggested that he may have been getting better by the third day. It was also disclosed that he was able to attend three incidents on 8 June having obtained a doctor's certificate and sick leave.

28 The applicant explained that in 2003 he was unhappy with his treatment by the respondent and that he enjoyed being a retained fire fighter. He denied however, preferring to work as a fire fighter to working as a correctional officer.

29 On 25 June 2003 the applicant took six weeks annual leave.

Events subsequent to acquittal of the assault charge

30 On 31 July 2003 the applicant was found not guilty in the Local Court of the assault charge. He telephoned Deputy Superintendent Stanford on 4 August and requested a return to the DDDU. Mr Stanford told him to submit a written report and he did so. He returned from annual leave on 11 August and over the next few weeks he repeatedly rang his superiors in relation to his request for a transfer back to the DDDU.

31 Arising from these requests, Mr Maa conducted a review of the applicant's performance and recommended in a report that he not be returned to the DDDU. The applicant deposed that the contents of this report were never put to him, nor was he asked to respond to the report. He denied that there had been a review of his performance, because he hadn't returned to work until 20 January 2003.

32 The matter was subsequently referred to the PCMC which was given a Police COP's report in relation to the assault charge. The applicant said he had no knowledge that the matter was to go to the PCMC until 27 August 2003, or what material the Committee had before it; nor was he given an opportunity to respond or make submissions to the PCMC. He claimed he was given no grounds for the decision or any detail of the allegations which led to the decision. The applicant stated that where a matter is referred to the PCMC, a PCMC file number must be allocated, the employee concerned must be informed in writing within 7 days and must be given an opportunity to comment. None of these requirements of the PCMC's own procedures had been complied with.

33 On 17 September 2003 the applicant commenced a lengthy period of leave without pay. During this time, his mother acted as his agent and made requests for various documents under the Freedom of Information Act 1989. The applicant deposed that, at this time, he was very despondent and depressed. As a consequence, he had filed a workers' compensation claim against the respondent.

34 The applicant said that some time later he had received the first bundle of documents from his file - the majority of which he had not seen before. On 22 October the applicant met with Mr John Campbell, Chair of the Prison Officers' Vocational Branch of the Public Service Association ('the Union') to discuss his case. The applicant claimed the Union arranged for a meeting with Commander Rodgers, but the meeting did not happen.

35 On 28 October 2003, the applicant was asked to submit a second request for six months leave without pay and a second request for secondary employment with the New South Wales Fire Brigade. At the same time as he made the requests, he withdrew his workers' compensation claim.

36 The applicant wrote to the respondent on 16 February 2004 formally requesting a return to the DDDU and stating that if this was refused, he be provided the reasons in writing for the decision. He also foreshadowed legal action if he was not transferred.

37 About this time, the applicant claimed he was informed by Parramatta Police that they held internal departmental reports relating to him. He attempted to obtain copies of these reports.

38 Having received no response to his earlier request to return to the DDDU, the applicant made another request on 29 March 2004. The chronology of events after this time is referred to in paras 3 - 6 of this decision.

39 On 19 May 2004 the applicant attended the first investigation hearing. He voiced objection to Mr Crawford's attendance as he had been a member of the PCMC. The applicant believed he was therefore biased against him. In his evidence the applicant said he was aware that the Public Sector Employment and Management Act provided that a disciplinary inquiry could be conducted, irrespective of whether the employee was no longer employed. He said he participated in the process in the hope that his submissions on the lack of procedural fairness would be recognised and addressed.

40 In a letter from the applicant to Mr Crawford of 19 May 2004 the applicant said, inter alia, I take responsibility for those matters where it was warranted, i.e. i. Treating the final exam as a joke ii. Two unpunctuality reports iii. Two or three motor vehicle accidents iv. Wearing incorrect uniform on 14 February 2002. and would advise that, in retrospect, it would have been preferable to have been transferred out of the Dog Unit as a result of those breaches than to be consistently subjected to false allegations, misrepresentations, and bullying.

41 The applicant attended a second investigation hearing on 18 June 2004.

42 A full copy of the investigation report was provided to the applicant on 22 July 2004. It recommended his dismissal. He was invited to respond and he did so in a detailed 11 page letter of 13 August 2004. He was advised of his dismissal on 19 August 2004.

43 In oral evidence the applicant said that he now works for the Sydney Olympic Park Aquatic Centre for a weekly net pay of around $500.00. He secured this employment after 20 August 2004.

44 Before completing the applicant's evidentiary case, Mr Pearce tendered the following documents: a. Extracts from the Public Sector Employment and Management Act 2002. Part 2.7 of the Public Sector Employment and Management Act 2002. b. Commentary and Guidelines on Conduct and Performance Provisions. c. Extracts from the Public Service Personnel Handbook.

45 Mr Donald Patrick Rodgers was the Commander, Security and Investigations Branch, Department of Corrective Services. He is presently the Commander, North Western Region.

46 Mr Rodgers, who had no recollection of meeting the applicant, was the officer whose responsibility it was to make the decision not to transfer him back to the DDDU. He said he had made this decision after the applicant's request had been considered by the PCMC on 27 August 2003. Mr Rodgers agreed in oral evidence that he had not discussed any of the matters put before the PCMC with the applicant.

47 Even after he had reviewed the applicant's affidavit, Mr Rodgers considered that the decision he had made was the correct one. It was his opinion that the incidents involving the applicant's loss of his keys and mobile phone represented a serious failure by a correctional officer to carry out his duties in an diligent manner.

48 In cross examination, Mr Rodgers agreed that these matters were put before the PCMC without the applicant's knowledge. Mr Rodgers said that it hadn't mattered whether the keys were identifiable, what they unlocked or where they were lost. The fact was the officer had lost his keys.

49 Mr Rodgers referred to the two incidents at a night club in North Sydney and at Gallagher's Hotel. He accepted that he did not know if the applicant was right or wrong in regard to these incidents. However, he believed that the fact the applicant became involved indicated that he was unable to appreciate that a confrontational situation was developing and/or he didn't have the ability to defuse such a situation. In Mr Rodgers' opinion this made the applicant unsuitable for employment in the DDDU.

50 Mr Rodgers added that the applicant disregarded his counselling when he had been told to inform his superiors of such incidents and he had demonstrated his lack of respect for senior officers in his Unit.

51 In oral evidence, Mr Rodgers said he had not seen a brief of evidence prepared by the Police in respect to the Gallagher's Hotel incident. He had seen a COP's report of the incident. He had made a mistake in his referral to the PCMC when he described the attachment as a police brief. It was in fact the COP's entry (Exhibit 6).

52 At the time, Mr Rodgers had asked why the assault charge had not proceeded. He agreed he made no further inquiries. Mr Rodgers conceded that he had not discussed the COP's report with the applicant and did not ask him for his point of view about it. Mr Rodgers accepted that the COP's report appeared to be "one sided."

53 The PCMC had also received a report from Mr Maa. Mr Rodgers agreed he did not show this report to the applicant or discuss it with him. Nevertheless he was happy for both reports to go to the PCMC. Mr Rodgers said that the PCMC accepted the report and recommendations of Mr Maa. Mr Rodgers had then delegated the implementation of the PCMC's decision to Mr Stanford.

54 Mr Rodgers was unable to say if the applicant's case before the PCMC had been given a case number and recorded in the EALB data base (the record kept of all matters before the PCMC).

55 Further, Mr Rodgers deposed that he had not known whether the applicant had been told in writing of the referral to the PCMC. Mr Rodgers did not know if the applicant was aware of all the matters put before the PCMC. However, he said he would be very surprised if the applicant had not been spoken to about the matters at the relevant time.

56 Mr Rodgers said his decision was made by relying on the various reports and supporting documents. He said that he had not been aware that the applicant had opposed his transfer or that he believed he would be returned to the DDDU if he was found not guilty of the assault charge. In any event, Mr Rodgers said that was not a relevant matter.

57 In oral evidence, Mr Rodgers said he was not aware of the legislative provisions which require that an employee must be consulted before a transfer. This was not a matter that he had put before the PCMC. Mr Rodgers was asked why he had changed the words on his copy of the report from Mr Stanford from "Noted" to "Report noted." He couldn't say why he changed it, but in any event, the notation made no impact on the report. Mr Rodgers was asked if it was he who had provided access to the applicant's files to a Union official. He could not recall if he had done so or whether he had met with the Union.

58 Mr Rodgers was asked whether it was the PCMC's decision to transfer the applicant or his decision. He said he had sought the Committee's advice and he was a member of the Committee. Mr Rodgers said he could have made the decision himself without referral to the PCMC.

59 Mr Rodgers conceded that the applicant was not aware that the issue of his transfer and his employment history were before the PCMC. However, Mr Rodgers said that officers don't make representations to the PCMC. There is an opportunity to do so if the matter goes further. Mr Rodgers said the Committee did not have the Magistrate's comments before it, but it was aware that the applicant had been found not guilty.

60 Mr Rodgers was asked if he knew Mr Maa had passed an internal report about the applicant to the Parramatta Police. He had not known at the time and didn't know what the circumstances might have been. Mr Rodgers said he didn't know whether it was improper for the PCMC to have a copy of the COP's report.

61 Mr Rodgers said that he would take a "very dim view" of an officer who did not attend for work as a correctional officer, but had attended for work as a retained fire fighter. He said this conduct would amount to a disciplinary matter which could be reviewed by the PCMC. He considered such a person would be unsuitable for the DDDU because the unit is a 24 hour operation across the State. Officers in the DDDU are of the highest calibre and are hand picked through competitive selection.

62 Mr Rodgers said that while he had no objection to a DDDU officer being a retained fire fighter, the primary role of a correctional officer was to the Department of Corrective Services.

63 Ms Anderson tendered various Silverwater log book entries which recorded the times the applicant had phoned in sick. Further documents tendered were occurrence log books of the New South Wales Fire Brigade disclosing when, and where the applicant had been employed. These were then compared to the Silverwater roster documents.

64 In a reply affidavit, the applicant said that Mr Rodgers' responsibility for making the decision not to transfer him back to DDDU came to an end when he referred the matter to the PCMC. Moreover, Mr Rodgers had not attached a Police Brief to the referral, but a COP's report. The applicant believed that this report bore little resemblance to the evidence given in the Local Court. In any event, none of the requirements in the Personnel Handbook which dealt with criminal matters were applied by the respondent.

65 The applicant believed that despite Mr Rodgers' denials, Mr Rodgers had retained a copy of the Police Brief and may have, in fact, attached it to his referral to the PCMC in August 2003.

66 The applicant did not accept that Mr Rodgers had made the decision. The issue was not referred back to the local level as required by the PCMC guidelines. The applicant referred to Mr Stanford's memo which said the decision had been made by the PCMC. Moreover, the applicant's mother had been told by the Union that the decision had been made by the PCMC.

67 The applicant claimed that the PCMC guidelines had been breached in that his matter had not been given a case number, nor had he been advised, in writing, within seven days of the entry on the EALB data base. The applicant said he had been denied access to, and did not know of Mr Maa's report to the PCMC. Indeed, Mr Maa's report was wrong, where it said he had been charged with "maliciously inflicting grievous bodily harm and assault occasioning actual bodily harm."

68 The applicant further claimed that Mr Rodgers had altered records to suit particular circumstances. Mr Rodgers' decision ignored the falsity of the allegations against him. The applicant had provided explanations for the loss of his keys and mobile phone.

69 In respect to not reporting full details of the incident at Gallagher's Hotel, the applicant claimed he was unaware the alleged victim was an ex inmate. Further, the incident had occurred in his private time and he knew it would be used against him. He said he was also under legal advice not to discuss the matter with anyone.

70 In regard to not being able to defuse a confrontational situation, the applicant said he had no control over another person's actions or reasoning. In any event, the applicant explained that he had defused both situations at the service station and the night club in North Sydney. The applicant stressed that, at no time, did Mr Rodgers consult him, or seek information about these incidents. Further, Mr Rodgers had regarded the Magistrate's finding of not guilty as irrelevant.

71 The applicant denied that he had been counselled concerning the reporting of such incidents. He further rejected the allegation that he did not respect his senior officers. He agreed he had problems with three officers, but despite having lodged a grievance, nothing was ever done.

72 The applicant claimed that senior managers were beholden to Mr Damaso because he had installed security equipment in their homes for free. The applicant said he had received numerous offers of support from other officers, but he did not take them up, because he believed that they would be disadvantaged by doing so.

73 The applicant reiterated that he understood his relocation to Silverwater was temporary. As a result, he had lost the use of a departmental vehicle. The applicant stated that the treatment he had received was harsh and unjust. He had attempted to resolve all his issues with the respondent, but was only met by silence.

74 Mr Pearce developed his submissions under the following headings; firstly, was there a constructive dismissal in April 2004?; secondly, was the respondent entitled to summarily dismiss the applicant on 19 August 2004?; and thirdly, was the dismissal harsh, unreasonable or unjust?

75 Mr Pearce dealt extensively with the principles of summary dismissal as discussed in several well known authorities - North v Television Corporation Ltd (1976) 11 ALR 599, Blyth Chemicals Limited and Bushnell (1933) 49 CLR 66, Concut Pty Ltd v Worrell and Anor (2000) 103 IR 160.

76 Mr Pearce then dealt with the stated reason for the applicant's dismissal - the alleged wilful disobedience of a lawful order. He submitted that the relevant law in this regard is that an employer's order must be both lawful and reasonable. See Macken, Law on Employment 4th Edition 1997. Mr Pearce put that the order to transfer the applicant was not reasonable in that he was demoted and lost remuneration through the loss of a departmental vehicle.

77 Mr Pearce submitted that the applicant's dismissal was harsh. unreasonable and unjust. He relied upon Byrne v Australian Airlines (1995) 185 CLR 401. The dismissal was particularly unfair in light of the steps taken by the respondent prior to the termination of employment. See Little v Commissioner of Police (No.2) (2002) 112 IR 212, Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32, Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385.

78 Mr Pearce also relied on my findings in Transport Workers' Union of New South Wales (on behalf of Paul Robert Jasper) and Sutherland Shire Council [2004] NSWIRComm 26; in particular, the facts in that case surrounding a Council employee working as a retained fire fighter.

79 Mr Pearce then referred to the principles of constructive dismissal and submitted that the applicant's permanent transfer to a position of less status and remuneration was a constructive dismissal. See Allison v Bega Valley Council (1995) 63 IR 68.

80 This gave rise, in Mr Pearce's submission to the requirements for transfers under the Public Sector Employment and Management Act 2002 - in particular, ss86 and 87 of that Act. There had been no consultation with the applicant about a permanent transfer. He had always believed the transfer was temporary. It followed that if an employee refused to take up a position to which he was not lawfully placed, then he cannot be guilty of a wilful failure to comply with a lawful and reasonable direction.

81 Mr Pearce then proceeded to deal with the respondent's non compliance with the PCMC's guidelines. Firstly, the PCMC did not have the power to make the decision not to transfer the applicant back to the DDDU. Secondly, the matter was not given a case number or recorded in the EALB database. Thirdly, the applicant was not notified of the matters before the PCMC. Fourthly, he was given no opportunity to place his view of these matters before the PCMC. Fifthly, the PCMC's decision took no account of the Magistrate's decision of not guilty. Sixthly, privacy considerations were not complied with and the respondent made inquiries with the Police without the applicant's knowledge. All these matters, Mr Pearce argued, constituted a gross denial of procedural fairness.

82 Mr Pearce detailed the applicant's responses and explanations for the various allegations against him. The service station incident was said to be "road rage." However, the police had taken no action. So there was no incident which the applicant was required to report or be counselled about. There was a pre judgement by the respondent before the applicant could give his point of view. It was "manufactured" in order to mount a case for the applicant's removal from the DDDU.

83 In addition, the use of force incident was found to be baseless, but kept resurfacing in the papers; as did the 2 April motor vehicle incident. There was not a scintilla of substance to the night club incident in North Sydney, but this too was raised. All these matters of no substance eventually found their way to the PCMC and the applicant had absolutely no knowledge they would be used in this way; let alone could he give his explanation. Even the applicant's own grievance against Officer Damaso was used against him. One must ask the worrying question, Mr Pearce queried, why did the respondent want the applicant out of the DDDU?

84 Mr Pearce referred to the applicant's numerous requests for access to the adverse reports against him. These requests were refused. It appeared that reports were placed on a separate file and not sighted by the applicant; let alone was he given an opportunity to respond to them.

85 Mr Pearce pointed to the false description of the charges laid against the applicant after the Gallagher's Hotel incident and the fact the respondent appeared to have access to internal Police files, unbeknown to the applicant. There were also references to counselling about which no records were produced. These factors and other inaccurate matters were the basis for Mr Morris' recommendation to transfer the applicant to Silverwater. The applicant always believed the transfer was temporary and the respondent brought no direct evidence that he was told the transfer was permanent. Even if it was, Mr Pearce put that the transfer was unlawful.

86 Mr Pearce submitted that once the original basis for the transfer (the charge of assault) fell away, the respondent had to reconstruct new grounds to justify its decision. These matters were inaccurate and flawed and the applicant wasn't given an opportunity to respond to them. This must mean the direction to return to Silverwater and not to return to the DDDU was unreasonable.

87 Mr Pearce concluded by saying that the applicant now had alternative employment and was seeking the maximum compensation for unfair dismissal.

88 Ms Anderson submitted firstly, that there was no constructive dismissal of the applicant on 13 April 2004 as the applicant simply refused to attend for work at a position to which he had been transferred some sixteen months earlier.

89 Ms Anderson responded to the suggestion of a breach of the Public Sector Employment and Management Act 2002 by referring to the conversation the applicant said he had with Mr Meagher. This disclosed that there was consultation about the transfer; albeit that it was blunt. The applicant accepted the transfer and it was put into effect. While he applied for a transfer back to the DDDU in mid 2003, there was no obligation on the respondent to agree to such a request. Moreover, Ms Anderson said there was no requirement to apply procedural fairness in respect to requests for transfers. Otherwise the work of the Public Service would grind to a halt. She emphasised that at this point there had been no dismissal. Even when the applicant was told he would not be transferred, he continued to go to work at Silverwater. The applicant then decided to demand to go back to the DDDU.

90 Ms Anderson put that the PCMC was not a legal entity and the direction issued by Senior Assistant Commissioner McLean was a lawful and reasonable direction.

91 Ms Anderson referred to the evidence that the applicant had got on well with the Governor of Silverwater and she had recommended he take leave without pay rather then resign. Ms Anderson submitted that there was no constructive dismissal of the applicant in April 2004.

92 Ms Anderson then dealt with the actual dismissal in August 2004. She reminded the Commission that on the first day of hearing the respondent had offered the applicant his job back at Silverwater. This was soon withdrawn when it came to light that over a long period of time (from at least January to September 2003) the applicant, had engaged in deceitful conduct by working for the Fire Brigade while on sick leave from the Department. As such, this case was able to be distinguished from Jasper and Sutherland Council.

93 Ms Anderson highlighted a number of examples of this conduct by reference to the log book entries, the rosters and Fire Brigade records. Numerous examples pointed to the applicant claiming sick leave. This meant another officer being paid overtime while the applicant was being paid by the Fire Brigade. Ms Anderson said that while not all the examples might be seen as premeditated, they all demonstrated deceitful conduct. In one example, the applicant was off on sick leave for three days in a row and attended Fire Brigade incidents on six occasions during that time.

94 Ms Anderson put that it was not necessary for the respondent to call numerous witnesses. The evidence was clear and not able to be challenged. The applicant admitted to working for the Fire Brigade while on sick leave (or FACS leave) from the Department. He claimed he did so because of stress. Moreover, it was not just on a couple of days, but on many occasions.

95 Mr Pearce submitted that the applicant's conduct was not premeditated and there was no evidence that he was not actually sick. None of the periods of work for the Fire Brigade was significant. The only thing which happened was that he was sick, he received a call out and felt fit enough to do it. Mr Pearce emphasised that while he was not trivialising the matter, it must be seen in the context of the applicant's depression and stress over his treatment.

96 Mr Pearce submitted that it was not correct to say that the applicant had accepted his transfer. He always believed that it was temporary and he had continuously agitated for his return to the DDDU immediately after his acquittal of the assault charge.

CONSIDERATION OF THE ISSUES TO BE DETERMINED Was there a constructive dismissal of the applicant in April 2004?

97 In one sense, it is not strictly necessary for the Commission to determine this question. This is so because the Commission's jurisdiction was most assuredly enlivened by the applicant's actual dismissal four months later. However, as there was vigorous and contested argument as to whether the applicant was constructively dismissed when he was permanently transferred out of the DDDU (or denied a return to the DDDU), I intend to make some observations and findings about the issue.

98 The test of what constitutes a constructive dismissal has been referred to in many decisions of the Commission at Full Bench level and consistently applied by single members of the Commission by reference to the most often cited authority found in Allison v Bega Valley Council. In that case the Full Bench said at pp 72 and 73: It is a trite observation that a contract of employment like any contract can come to an end in a number of ways. Termination can be "by" the employer where an employee is "dismissed" either with notice in accordance with the provisions of the contract or without notice in the event of serious and willful misconduct. Both the employer and the employee may mutually agree that the contract of employment should come to an end. In other cases the employee may bring about the termination by resigning In some cases the circumstances in which the termination comes about makes it difficult to determine whether there was termination "by" the employer or the employee. There are cases where the courts, after analysis, have determined that although on the face of it an employee has resigned and brought about the termination of the contract of employment, in reality the conduct of the employer has compelled or unduly influenced the employee to resign. The most quoted example is an assertion by an employer to an employee to the effect that the employee must resign or he or she will be dismissed. This situation is commonly referred to in the text books and decided cases as a "constructive dismissal", that is in effect the employer has brought about the termination of the contract of employment.

Although the term "constructive dismissal" is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?

It is obvious that a consideration of these matters must be made on a case-by-case basis and that an attempt to formulate general principles in the absence of particular facts will not assist in the overall determination of this issue. In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee, particularly where the dynamics within a factual situation may change. For example, an employer may demand a resignation with a threat of dismissal, negotiations may then ensue and the employee may ultimately be genuinely pleased with the outcome of those negotiations to the extent that any resultant resignation may be said to be given freely and without any undue influence being brought to bear by the employer.

Where an employee initiates the termination of the contract of employment it is necessary to consider whether that ostensible act of termination was given freely and without any undue pressure. If the ostensible resignation is, in effect, a response to and consistent with a desire by an employer that such resignation be forthcoming, then what has occurred may be that the termination has been brought about by the employer and that in this way the employee has been dismissed.

99 As a matter of obvious definition it seems to me that a forced resignation will invariably be found to be a termination of employment at the initiative of the employer; thus meeting the test of what constitutes a constructive dismissal. See also Clark v Pittwater RSL Club Ltd (1998) 84 IR 309, Claric 218 Pty Ltd t/as Sanity Music v Meldrum (1998) 91 IR 296, St Vincents Hospital Sydney Limited v Harris (unreported, Peterson, Schmidt JJ, O'Neill C, Matter IRC5932 of 1997, 28 May 1998), Britton v Riverstone Public School (unreported, Schmidt J, Sams DP, McLeay C, Matter IRC5504 of 1999, 6 May 1999), Bates v Gundagai District Services Club (unreported, Walton VP, Sams DP, Redman C, Matter IRC4710 of 1999, 14 April 2000) and Police Service of New South Wales v Batton (2000) 98 IR 154.

100 To these earlier authorities may be added the weight of a recent Full Bench decision reaffirming the principles discussed in Allison. In Ward v Mobile Innovations [2002] NSWIRComm 287 the Full Bench made these observations at para 4: The Commission has authoritatively addressed the question of constructive dismissal in Allison v Bega Valley Council (1995) 63 IR 68 (although the Full Bench in Allison expressed the need for caution in the use of that expression). Hence, the principles for determining whether a termination constitutes a "constructive dismissal" are now well settled, in our opinion, and do not require revisiting in this appeal. In particular, Allison makes clear (at 72) that the proper approach in this context involves an identification of whether the employer was the true initiator of the termination of employment. Each such inquiry must relate to the facts and circumstances of a particular case. This matters represents no exception in this respect. And at para [6] said: It may be that the conduct of an employer is so onerous or unreasonable prior to a termination that a termination will be found to lay in the hands of an employer, even where the employer has not expressly required an employee to offer resignation or threatened dismissal in lieu of such an offer. However, this notion merely accords with that which has already been formulated in Allison .

101 The consistent theme running through all the cases concerning constructive dismissal is that the employer must be found to be the effective initiator of the termination of employment. This arises either through a direct or indirect action taken by the employer which results in the effective termination of the employment. The same consequence might also arise from the inaction or failure to act by the employer which produces the same outcome, such as a forced resignation.

102 One then applies this test to the facts and circumstances of a particular case. I should emphasise at this point that the mere finding of a constructive dismissal does not necessarily mean that the dismissal was harsh, unreasonable or unjust within the meaning of the Act.

103 In my assessment, the following matters must be borne in mind when determining whether the applicant was constructively dismissed by the respondent's refusal to transfer him back to the DDDU.

104 Firstly, the applicant was originally transferred to Silverwater on 19 December 2002. He worked there until he went on leave without pay on 16 October 2003 and he remained appointed to Silverwater until his dismissal on 19 August 2004. In other words, he was actually working at Silverwater - seemingly without complaint - for about ten months.

105 Secondly, the applicant did not protest his transfer to Silverwater in December 2002 and indeed, he nominated Silverwater when he was asked which facility he would prefer to be transferred to.

106 Thirdly, the applicant gave evidence that he "got on well" with the Governor of Silverwater, Bernadette O'Connor. He had actually worked at Silverwater prior to his appointment to the DDDU.

107 Fourthly, there was no conclusive evidence that the applicant was told he would be returned to the DDDU if he was cleared of the assault charge against him. Significantly, it is to be observed that, at no time, did the applicant assert that he had been directly told he would be transferred back. Rather, the evidence is no higher than it was his belief that this would be the case.

108 Fifthly, I have reviewed the document of transfer headed, Staff Variation and Posting Order, dated 2 January 2003. There is nothing referred to or notated in this document which suggests that the original transfer to Silverwater was anything other than a permanent transfer.

109 Sixthly, subsequent to 14 April 2004, the applicant had attended two disciplinary investigation meetings on 19 May and 18 June. This strongly suggests that the applicant considered himself to be continually employed by the respondent and subject to the processes of the Department as an employee at a time after he claimed he had been constructively dismissed. Had he regarded himself as dismissed on 14 April, there was no obligation on him at all to participate in any investigation; let alone attend two meetings. Moreover, the applicant continually, and in some considerable detail, corresponded with the Department throughout the period between April and July 2004.

110 From the foregoing observations it seems to me that, not only did the applicant consider himself to be employed by the respondent for some time after he asserts he was constructively dismissed, but there was no action taken or initiated by the respondent which could be said to constitute a constructive dismissal. I find accordingly.

Was the direction to return to work at Silverwater a lawful and reasonable direction?

111 In determining this question, one must first decide whether the applicant's original transfer in December 2002 was a permanent or temporary transfer. Mr Pearce argued that on whatever basis, the transfer was unlawful because certain requirements under the Public Sector Employment and Management Act 2002 were not complied with. I shall return to this issue in due course.

112 In my opinion, there can be no doubt that the applicant's transfer in December 2002 was a permanent transfer. This is so because there was no evidence that the applicant was told, or that he requested confirmation, that it was a temporary transfer, pending the outcome of the Local Court proceedings. Notwithstanding the applicant's belief that the transfer was temporary, there was nothing said to him, either directly or implicitly which inferred that the transfer was temporary. One is left to speculate, bearing in mind the applicant's (or his mother's) assiduous attention to detail and demands for documentation, as to why the applicant did not, at any stage, seek written confirmation that his transfer was temporary. That is not to say, of course that the applicant was not entitled to request a transfer in the ordinary course as would be commonplace in the Department.

113 Returning then to the requirements under the Public Sector Employment and Management Act 2002. The sections said to have been not complied with were ss86 and 87: 86 Temporary staff transfers (secondments) (1) A member of staff of a public sector agency may transfer temporarily to the service of another public sector agency with the approval of the heads of the home agency and the host agency. (2) A member of staff of a public sector agency may transfer temporarily to another position or other employment within the agency with the approval of the head of the agency. (3) A temporary transfer under this section may be: (a) at the request, or with the consent, of the member of staff concerned ( "an employee-initiated temporary transfer" ), or (b) at the direction of the head of the home agency ( "an employer-initiated temporary transfer" ). (4) A person may be temporarily transferred under this section at the person's existing level of remuneration or at a different level of remuneration. However, an employer-initiated temporary transfer cannot be made at a lower level of remuneration. (5) A person who transfers to the service of another public sector agency under this section remains an employee of the home agency. (6) However, in the case of an employee-initiated temporary transfer, the person ceases to be an employee of the home agency and becomes an employee of the host agency if: (a) the transfer has continued for at least 2 years, and (b) the head of the home agency notifies the person of the proposed cessation of employment, and (c) the person decides to remain with the host agency with the consent of the head of that agency. (7) In the case of an employee-initiated temporary transfer, a permanent appointment may be made to the original position of the person (and without the person ceasing to be employed by the agency) if: (a) the transfer has continued or is likely to continue for more than 12 months, and (b) the person is advised of the proposed appointment, and (c) the person is given a reasonable opportunity to terminate the transfer and return to his or her original position. (8) In the case of an employer-initiated temporary transfer, a permanent appointment cannot be made to the person's original position except with the consent of the person. (9) The following is to be determined in accordance with such guidelines as are issued from time to time by the Director-General of the Premier's Department: (a) the procedures for obtaining the consent of an employee under this section, (b) the circumstances in which an employer-initiated temporary transfer to a different workplace location in the State may be made. (10) In this section: "home agency" means the public sector agency from which the transfer of a member of staff is made under this section. "host agency" means the public sector agency to which the transfer of a member of staff of another agency is made under this section. "public sector agency" does not include a State owned corporation. Note: See also section 24 for acting appointments to vacant positions or where the holder of the position is suspended, sick or absent 87 Employer-sponsored permanent transfers (1) The head of a public sector agency may, subject to this section, transfer a member of staff of the agency to the service of another public sector agency: (a) with the approval of the head of the other agency and of the Public Employment Office, and (b) following consultation with the member of staff. (2) The head of a public sector agency may, subject to this section, transfer a member of staff of the agency to another position or other employment within the agency, following consultation with the member of staff. (3) The following provisions apply to the transfer of a person under this section: (a) the transfer is to be made at the person's existing level of remuneration, unless the person consents to the transfer at a lower level of remuneration, (b) if the person is employed in a staff position or on a temporary basis, the person is to be transferred to another staff position or to other temporary employment, respectively, (c) the person must possess the qualifications required for the position or employment to which the person is transferred or have the capacity to perform the work after a reasonable period of time in the position or in that employment.

114 Mr Pearce contended that the applicant was not consulted about his transfer as required by s87(1)(b) of the Act. I do not agree. As referred to earlier, not only was the applicant consulted about where he preferred to be transferred, but he seemed to have expressly supported it in his letter on 19 May 2004, in which he said: I take responsibility for those matters where it was warranted, i.e. 1. Treating the final exam as a joke 2. Two unpunctuality reports 3. Two of three motor vehicle accidents 4. Wearing incorrect uniform on 14 February 2002 and would advise that, in retrospect, it would have been preferable to have been transferred out of the Dog Unit as a result of those breaches than to be consistently subjected to false allegations, misrepresentations, and bullying.

115 Moreover, the applicant was a member of the Union at the time and could have sought the Union's advice and assistance at all relevant times.

116 It follows then that I find that there was no breach of s87 of the Public Sector Employment and Management Act 2002. The direction, therefore, that the applicant attend for work to a particular position and location cannot be said to be an unlawful direction.

117 On the other hand, whether the direction was reasonable is an entirely different matter and somewhat more problematic. Mr Pearce was undoubtedly correct when he put that the dismissal of an employee for failing to comply with an unreasonable direction from the employer would invariably be found to be unfair. However, after carefully weighing up all the relevant factors, particularly the elements of procedural unfairness to which I will shortly refer, I have come to the conclusion that the direction to attend for work at Silverwater was not an unreasonable one.

118 In this regard, I have in mind a number of the same matters I earlier referred to in my consideration of whether the applicant was constructively dismissed.

119 Firstly, the applicant had been appointed to Silverwater from 19 December 2002 until his dismissal on 19 August 2004 and had actually worked as a correctional officer for a period of ten months during this time.

120 Secondly, the applicant had nominated Silverwater as his preferred centre for transfer and said he got on well with the Silverwater Governor.

121 Thirdly, the applicant had actually worked at Silverwater before being appointed to the DDDU. In addition, the applicant suffered no loss of seniority or salary by the transfer.

122 True it is that the applicant did lose the departmental vehicle. However, I cannot conclude that this constituted an unreasonable basis for refusing the direction to return to Silverwater, particularly considering he hadn't had use of the vehicle for around eighteen months.

123 As to the perceived loss of status, I accept that a position in the DDDU was a highly sought after posting for which officers were specially selected. These factors do not, in my opinion, necessarily translate to the position being of a higher status than any other equivalent position in the Department. In any event, the notion of someone's status is usually only based on how one perceives oneself, rather than how the person or position is viewed by others. In other words, it is highly self selective.

124 At this juncture, I would conclude that it is my firm view that the applicant's refusal to attend at Silverwater was both a foolish and ill considered decision. If he had any grievance to pursue, it was best pursued as an employee of the respondent. By refusing to comply with the direction, he effectively refocussed the issue away from his own grievance, to an entirely different disciplinary matter which was only going to result in one outcome.

125 Having found that the direction to return to Silverwater was neither unlawful nor unreasonable, I turn now to whether the respondent was justified in summarily dismissing the applicant for wilful misconduct.

126 The usual onus in unfair dismissal cases rests with the applicant to satisfy the Commission that a dismissal was unfair or, more particularly, that it was either harsh, unreasonable or unjust within the meaning of the Act (see Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273).

127 However, that onus is reversed where the employee is dismissed for misconduct. The employer must not only make the allegations against the employee, but prove the allegations to the requisite standard. This shift of onus has been considered in many decisions of the Commission. A few citations will be sufficient to demonstrate the point.

128 In Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3 (1990) 35 IR 70, his Honour, Hungerford J said: It is undoubted, in my view, and as Mr Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union: see Re Barrett and Women's Hospital, Crown Street (1947) AR (NSW) 565; Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) (1949) AR (NSW) 868; Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 at 279 and Homebush Abattoir (1966) AR (NSW) at 386. However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson (1957) AR (NSW) 547 at 552, 553; North v Television Corporation Ltd (1976) 11 ALR 599 at 602; Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35. To the extent that Mr Newall submitted to the contrary, his submission cannot stand. The approach as to this shifting of the burden of proof received conceptual support in the judgment of Dixon J, as he then was, in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643, and in that passage from his Honour's judgment which said at 644: Again, it is a general principle that absence of default or wrongdoing is presumed and proof is required when its absence is made a qualification of a right. It is in accordance with principle to regard fault as a particular exception defeating the right only when alleged and proved.

The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it. In support of his submission on onus, Mr Walton referred to the judgment of Dey , J. in Re Wentworthville Leagues Club Ltd (1976) 18 AILR 355, in which his Honour clearly held that the necessity for proving misconduct lay upon the party setting it up, namely the employer, and even though the union had the responsibility for establishing a proper case for reinstatement. I respectfully agree with his Honour's conclusion, it being entirely consistent with well established authority.

129 In Shop Distributive & Allied Employees' Association v Jewel Food Stores (1987) 22 IR 1, the former Industrial Commission in Court Session said: We consider in cases where dishonesty is alleged as the reason for summary dismissal, management should only summarily dismiss if it is fully satisfied after careful investigation that the accusation has been made out. In coming to such a conclusion, a prudent and fair employer will take into account, where relevant, as part of the circumstances of the case, an employee's youth or inexperience, the nature and effect of any interrogation and any admissions or denials made. We consider that this same standard should be applied by industrial tribunals when considering reinstatement. 130 In Franklins Limited v Webb (1996) 72 IR 257, after discussing both these authorities, the Full Bench said at p261: Those authorities deal with different points but are nevertheless both applicable to circumstances where summary dismissal has occurred for alleged cause. In this case, the employee was dismissed by the payment of one week's wages in lieu of notice but obviously for cause. The reasoning of the Commission in Court Session in Jewel Food Stores , in our view, is directly apposite and we would apply to these circumstances the same consideration with respect to onus as was adverted to by Hungerford J in Gartrell White.

131 In my opinion, a finding of serious misconduct must also be accompanied by a finding that the employee's actions or failure to act constituted an abrogation or wilful repudiation of his or her obligations to the employment contract. Did the serious misconduct here alleged constitute a wilful repudiation of the contract of employment by the applicant? In deliberating on this question, I refer to four authorities: In North v Television Corporation Ltd , Franki J said at p616: It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions.

The 1959 English case referred to makes it plain that an act of disobedience or misconduct (justifying dismissal) requires also that the disobedience must be " wilful ": … 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. (P288).

Hungerford J in Day v Lumley Life Limited (1999) 90 IR 70, described the employment relationship as a serious contractual relationship involving rights and obligations on both sides: The employment relationship, I have to say, is a serious relationship with important incidents for both parties to it. It is a consensual relationship based on contract and with respective rights and obligations. It should not, I think, operate, or to be so seen, in practice in a way, which permits one party, here, the employer, to act in a one-sided manner contrary to the legitimate expectations and understandings of the other party, here the employee, and particularly where such action damages or detrimentally affects the career interests of the employee. Employees have a corresponding duty to act with fidelity and good faith.

132 In Concut Pty Ltd v Worrell and Anor, McHugh J, dealt with the ordinary relationship of the employer and employee at common law: The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law: "[c]onduct which in respect of important matters is incompatible with the fulfillment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. ... [T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises." In the present case, the findings at trial went beyond mere uneasiness as to the future. They necessitated, or at least warranted, a conclusion that the "confidence" essential to the relationship of employer and employee had been destroyed. Instead of pursuing the interests of the company and its shareholders, the employee had pursued his own private interests. Not only was the employee in breach of his duty of fidelity and trust owed to the employer, he had remained in breach of that duty to the date of the trial. Until that time he had not accounted for the benefits wrongly appropriated by him. Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial was determined against the employee. He was then subject to the employer's counter-claim for an order to make a refund. Such order was duly made at trial. It was not contested on appeal. Given his senior status in the company's service and the nature and extent of the misconduct disclosed in the evidence and accepted by the primary judge, it was open to him to find that the employee had undermined the confidence essential to the ongoing relationship of employment. Prima facie, this had afforded a legal justification for the employee's summary dismissal. It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal. See also Blyth Chemicals Limited v Bushnell ; 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 and Hunt v Hornsby Shire Council [2001] NSWIRComm 242.

133 There was no doubt that the applicant did not comply with the direction to return to Silverwater. That being so, the allegation against the applicant must be found to have been proven. In view of my earlier findings, the specific allegation that the applicant had failed to comply with a lawful and reasonable direction of the employer must similarly be found to be proven. There is no doubt that this was a serious matter. The applicant was in no doubt of the consequences of his failure to comply with the direction. It would seem unlikely that the respondent would have had any other choice (except to accede to the applicant's demand to return to the DDDU) other than to dismiss him. At least from 14 April 2004, the sequence of events was hurtling inevitably towards that result.

134 The Commission is further satisfied that the applicant's refusal to comply with the direction was premeditated, deliberate and wilful. His letter indicating that he was willing and able to return to work at the DDDU was almost taunting the respondent to take action against him. It demonstrated that as far as he was concerned, any resolution other than a direct repudiation of his superiors' decision, was going to be unacceptable to him.

135 Had the applicant changed his mind, (including on the first day of this hearing), the outcome may have been much different. The respondent may not have undertaken its extensive inquires with the Fire Brigade and the applicant may still have been employed by the respondent.

136 The Commission might also have taken a more sympathetic view of the applicant's case, had it not been for the issue of his secondary employment. Before moving to that matter, I would conclude that at the time of the applicant's dismissal, the respondent had a sound and reasonable basis for terminating his employment. That decision was a fortiori in light of what subsequently came to light.

137 An employer is entitled to rely on conduct which comes to light after an employee's dismissal to justify its original decision to terminate the employment, providing that the facts later established existed at the time of dismissal. In Byrne & Anor v Australian Airlines the High Court said at p430: And facts which existed at the time of the dismissal, but which come to light only subsequently, might justify the dismissal when other wise it would be harsh, unjust or unreasonable.

138 In Hollingsworth v Commissioner of Police (1999) 88 IR 282, the Full Bench said at p325: Shortly stated, although an employer may dismiss an employee on a particular ground the determination in proceedings before the Commission as to whether the dismissal was harsh, unreasonable or unjust so as to support appropriate relief (reinstatement, re-employment or compensation under Pt 8 of Ch 3 of the 1991 Act) will depend upon the circumstances of the case as they existed at the time of dismissal. And that is so even though the employer may have been strictly unaware of certain facts at the time of the dismissal but later acquired knowledge of them, the only qualification being that such facts themselves existed at the date of the dismissal.

139 The applicant conceded (although he could hardly have done otherwise) that he had worked his secondary employment on days when he had applied for sick leave or other leave. He claimed it was only on a few occasions. However, the evidence revealed that it was more than just a few occasions. One particular example disclosed a three day sick leave period in which the applicant was called out six times.

140 Mr Pearce went to considerable lengths to demonstrate that, to the extent that the applicant may have worked for the Fire Brigade while on sick leave from the Department, the evidence was unclear and inconclusive. It was certainly unclear as far as the applicant was concerned during his cross examination on the subject.

141 In any event, Mr Pearce emphasised that it was the case in most instances that the call outs for the Fire Brigade were of short duration and his actions were not premeditated. The applicant maintained that working for the Fire Brigade assisted to alleviate the stress he was suffering at work. While this was a clever answer, I do not accept it. First of all, I have some difficulty in rationalising a claim that work related stress would be ameliorated by working as a fire fighter - albeit that there appeared to be few actual instances of the applicant engaged in life threatening situations.

142 Secondly, irrespective of whether the call outs were of short duration, or not as frequent as the respondent contended, the fact was that the applicant originally deposed that he had worked on a few occasions while on sick leave. This was untrue. On closer examination the evidence revealed that the instances were significantly more than a few. Even if it was a few occasions and he found that the work assisted his stress levels, such an explanation is, to my mind, no explanation at all. It fails to justify why the applicant was in clear breach of his employment obligations and his assurances that his secondary employment would not interfere with the obligations to his primary employment.

143 To further maintain that his illnesses (assuming them to be genuine), were not of such seriousness as to prevent him undertaking his Fire Brigade duties, begs the obvious question. How could it be squarely said that he was too ill to work as a correctional officer, but fit enough to work as a fire fighter? Moreover the justification that the Fire Brigade incidents were of short duration is nonsense. The applicant would have had no idea how long each call out might be or the seriousness of the incident he was called to attend. I find the rationale for his conduct to be disingenuous and it is rejected.

144 Further, I am not persuaded that my findings in Jasper v Sutherland Council were predicated on a similar set of facts and circumstances as here.

145 Firstly, the applicant in Jasper did not seriously question the allegations against him (working secondary employment while on sick leave and workers' compensation). Rather, it was argued that his dismissal was too harsh a penalty.

146 Secondly, the actual dismissal in this case followed upon an allegation of the wilful disobedience of a lawful instruction. This was unrelated to working secondary employment and not a factor in the Jasper case.

147 I also note that the Commission described the result in Jasper as "finely balanced" and one which could have gone either way. In my judgement, the facts and circumstances of this case plainly warrant a different view to be taken of the applicant's conduct than that which was identified in Jasper.

148 There was one further aspect of the evidence, which on close examination of the documentation provided by the applicant, I am troubled by.

149 The applicant provided copies of 6 duty book entries made by him in 2001 and early 2002. Each day had an asterisk entry after ceasing duty which recorded on alleged controversial conversation with another person. For the following reasons, I have serious reservations that these entries were made on the day the applicant said he recorded them.

150 Firstly, all the other entires in the day book make no reference to specific conversations with other persons. They simply record his movements. Secondly, the entries are out of time sequence and always appear after he ceased duty for the day. For example: 20 December 2001 Actual Duty 0800 Commence Duty - Long Bay 0830 PT training Maroubra Beach - with MSU 1115 MSPC searches. (IAT) 1400 Lunch 1515 Depart Long Bay - 45 min TIL - re Field Supervisor Damaso 1600 Cease Duty * Around 10:00am Field Supervisor Damaso said to me in front of SCO C. Cooney "Just to be a cunt to you Fernsie, I might send you back to Base and finish you off there so you have further to travel home."

151 Thirdly, all of the asterisk entries were designed to put blame on other persons and for the applicant to put his view of a particular incident as if it had occurred to him on the day it happened.

152 I am left with little idea as to why the applicant chose to include this material in his evidence. It may well have been designed to construct a paper trail of his concerns long after they had actually occurred in order to maximise the force of his case against the respondent. That being said, I find this material to be a clumsy and amateurish attempt to tamper with the evidence.

Issues of Procedural Fairness - Relevant Principles

153 I turn now to discuss the issues of procedural fairness in the context of an unfair dismissal.

154 A recent Full Bench decision of this Commission stressed the importance of ensuring that an employee is afforded procedural fairness in the process leading up to a decision to dismiss an employee following allegations of serious misconduct. In Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 the Full Bench said at para 118: This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have traveled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious. To my mind, these observations are unremarkable. They merely reflect the statutory instruction found at s88 of the Act and the long held authorities which identify the matters the Commission may take into account when determining an unfair dismissal claim. These matters include, but are not limited to, whether: (i) a reason for dismissal was given;

(iii) an applicant was given an opportunity to make out a defense or give an explanation of his or her behavior;

(iv) any warning of unsatisfactory performance was given;

(v) the applicant sought but was refused reinstatement or reemployment.

It is significant to observe that the Commission may take other matters into account which it considers relevant (s88(f)).

155 In Byrne & Anor v Australian Airlines, the High Court, concluded that it is clear that the use of an unfair procedure may result in a dismissal being 'harsh, unreasonable or unjust.' To this authority may be added the weight of a number of Full Bench decisions of the Commission. In Antonakopoulos v State Bank of New South Wales, the Full Bench said at p389:

We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. and later, at page 390:

While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust .

156 The above reference to Buckman is Buckman v Burdekin (1998) 85 IR 415. In that case, the Full Bench said at p418: Section 88 of the Act contains a number of matters which may, if appropriate, be taken into account in considering whether a dismissal was harsh, unreasonable or unjust. There is, of course, no obligation imposed by the Act upon employers to give an employee a warning prior to effecting a dismissal. However, a failure to give prior or timely warnings is a matter which properly may be taken into account as part of the consideration of general issues of substantive and procedural fairness. See also Wilson v Department of Education and Training (2000) 100 IR 1; Byrne & Anor v Australian Airlines ; Burke v McGirr (1995) 87 IR 54; Oswald v NSW Police Service (1999) 90 IR 42; Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57; Abboud v The State of New South Wales (Department of School Education), Antonakopoulos v State Bank of New South Wales and D & R Commercial Pty Ltd v Flood (2002) 113 IR 344.

157 At this point, I note that there were no real issues of procedural unfairness arising directly from the allegations which led to the applicant's dismissal. He attended two disciplinary meetings, was invited to respond to the allegation and did so in a lengthy reply of 19 August 2004. There was no doubt that the applicant knew his job was on the line. The issues of procedural fairness which were focused on in this case relate primarily to the decision taken by the PCMC, to which I will return shortly.

158 The applicant bitterly complained that various internal memos written and relied upon at various management levels about his performance were never shown to him and he was never asked to comment on them. However, this is really not the point. These internal memos did no more than outline what the applicant already knew about issues which had been raised with him, both formally and informally. If the respondent had sought to raise and rely upon matters about which the applicant had no knowledge, there would be cause for legitimate complaint. None of the criticised documents do so. In these circumstances I find it difficult to understand how a claim of a denial of procedural fairness, based on these specific matters, can stand scrutiny.

159 While the applicant was hardly the model employee, it might be said that many of the performance related issues referred to during this case were of little consequence and not particularly serious (the applicant's silly attitude to his exam and the damage to the vehicle are such examples).

160 However when viewed collectively, and particularly in light of the applicant's approach to his secondary employment, his overall conduct presents a picture of a young man seemingly unwilling to grasp the seriousness of his obligations and responsibilities as a correctional officer. This was the view, properly held I might say, of the respondent.

161 That being said, it seems to be that the strength of the applicant's case rests primarily with the lack of procedural fairness afforded to him when he requested and was refused a transfer back to the DDDU, as a result of his conduct being referred to the PCMC.

162 Mr Rodgers' evidence was plainly crucial in this regard. It was clear that the applicant was not aware of the matters that were before the PCMC. More importantly, the applicant was given no opportunity to respond to what was being put before the Committee, during the Committee's deliberations or before the decision was made to recommend he not be transferred back.

163 The Committee did not have the Magistrate's decision before it, but only what Mr Rodgers accepted was a rather "one sided" version of events recorded in the COP's report.

164 The Committee considered matters which were extraneous to the original reason why the applicant was transferred out of the DDDU. The applicant had no knowledge that such matters were to be raised and was given no opportunity to respond.

165 At this juncture it must be emphasised that the Committee does not make decisions, but gives advice and recommendations. I would add that there was no basis for impugning Mr Rodgers' actions simply because he took advice from the PCMC.

166 While I accept that Mr Rodgers made the final decision and that the applicant had a later opportunity, and did respond to the allegations, Mr Rodgers was strongly influenced by the PCMC's deliberations. After all, Mr Rodgers had not even met the applicant.

167 There was also some force to Mr Pearce's emphasis on the failure of the respondent to comply with the PCMC's own guidelines. Two matters are pertinent. Clause 6.8 provides: Recording of Matters All matters referred to the PCMC will be given a case number and recorded on the EALB data base. ... Employees whose names are recorded on the EALB database will be advised in writing to that effect within 7 days of the entry being made unless the Commissioner agrees that the time period for notification should be extended (see also 6.10) Employees who are so notified shall be entitled, upon completion of the matter, to a copy of the final record held in their name. Clause 6.10 provides: Notification to Employees Under Investigation Where the PCMC has determined that an allegation shall be investigated, the employee subject to the investigation shall be notified in writing within 7 days unless the Commissioner agrees for operational reasons that the officer should not be notified at that time. If the employee is notified, he or she shall be informed of the nature of the allegation, details of the unit or the person conducting the investigation and the due date for the investigation to be completed. In such circumstances, any complainant shall also be notified of the instigation of the investigation and due date for completion. It was not contested that both these provisions were not complied with.

168 In my view, these procedural deficiencies render the dismissal of the applicant procedurally unjust. On the other hand, other criticised aspects of the procedure do not withstand objective scrutiny.

169 Firstly, there was some suggestion that the applicant was not consulted about the transfer to Silverwater as required by the relevant legislation. This is not correct. The evidence was that he was not only consulted, but was asked which facility he wished to go to. There was no breach in that regard.

170 Secondly, there was no requirement for the PCMC to receive representations from an officer under scrutiny. The opportunity to do so arises subsequently and the applicant did so. There can be little doubt that the applicant had given explanations for all the matters discussed by the PCMC.

171 Thirdly, some attention was given to whether the PCMC had made the decision (contrary to its powers) to not transfer the applicant or whether Mr Rodgers, as the proper legal authority, had done so. I think little turns on this debate. Mr Rodgers as the appropriate legal authority ultimately made the decision which was conveyed to the applicant. It is a matter of little substance that the Committee recommended or made the decision. Mr Rodgers' evidence was that he could have made the decision without reference to the PCMC. He had done so after obtaining advice from the relevant body charged with considering such matters. It seems to me that the criticism would have had far greater resonance if Mr Rodgers acted alone without the advice of the PCMC.

172 Fourthly, on the state the evidence, I cannot be satisfied that the respondent made unfair or illegitimate inquiries with the Police contrary to the Public Service Personnel Handbook. I am therefore unable to conclude that there had been breaches of the public service guidelines in this regard.

173 On balance, I am prepared to accept that the process by which the decision/recommendation of the PCMC, strongly relied upon by Mr Rodgers, was flawed; although I believe the decision itself was ultimately justified and not unfair.

174 That being said, it must follow that the process leading to the applicant's dismissal was tainted, such as to lead me to find that the applicant was denied procedural fairness. That does not mean, however, that the eventual decision to dismiss the applicant was also unfair, most particularly in light of the facts at the time of the dismissal which become known to the respondent subsequently concerning his taking of sick leave while working for the NSW Fire Brigade.

175 This leads me to finally determine that the applicant's dismissal was procedurally unjust within the meaning of Pt 6 ch 2 of the Act. Despite this finding, I seriously contemplated making no consequential orders. However, I am minded to make an order of a small amount of compensatory relief equivalent to four weeks wages. In doing so, I have had regard for the totality of the circumstances of this case, and in particular the applicant's age, his alternative employment, his less than satisfactory conduct during his employment and his capacity for blaming everyone, other than himself, for the various incidents referred to during the course of this judgment.

Summary of Findings 1. The applicant was not constructively dismissed in April 2004. 2. The applicant's transfer to Silverwater was not a temporary transfer. 3. There was no breach of the Public Sector Employment and Management Act 2002. 4. The respondent's direction that the applicant return to work at Silverwater on 13 April 2004 was a lawful and reasonable direction. 5. The applicant's summary dismissal on 19 August 2004 for wilful misconduct was justified and supported by facts which became known subsequent to the dismissal. 6. The applicant was denied procedural fairness during the relevant period leading up to his dismissal. 7. The procedural flaws rendered the applicant's dismissal as procedurally unjust within the meaning of Pt 6 ch 2 of the Industrial Relations Act 1996. 8. An order of compensation is appropriate pursuant to s89(5) and (6) of the Act.

176 Pursuant to s89(5) and (6) of the Industrial Relations Act, the Commission orders that: 1. The respondent, the Department of Corrective Services, shall pay to the applicant, Mr Craig Nathan Ferns, an amount of four weeks salary at the rate of pay the applicant was earning at the time of his dismissal. 2. The above amount shall be paid within 21 days of today. 3. These proceedings are now concluded.

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.