Goodwin v Secretary of the Ministry of Health

BACKGROUND

1. Mr Goodwin has been employed as a paramedic by ASNSW for approximately 23 years having attained the classification or rank, in award terms, of Paramedic Educator prior to the decision against which this appeal is brought. At the time of the events which led to the disciplinary action against him, Mr Goodwin was a member of the Special Operations Unit ('SOU') based at ASNSW's headquarters at Rozelle.
2. In July 2011, Mr Goodwin contacted Canterbury International (Aust) Pty Ltd ('Canterbury') with a view to purchasing some sporting attire for himself and other members of the SOU who were about to undergo fitness testing. He was put in touch with Andrew Suffell who was, at that time, the NSW, ACT, SA Teamwear Account Manager for Canterbury.
3. Mr Goodwin arranged for Mr Suffell to supply a number of items of Canterbury sportswear for himself and other members of the SOU, six to eight people in all. Mr Goodwin collected cash from the other members of the SOU who wished to purchase items of Canterbury sportswear. The items ordered by Mr Goodwin from Mr Suffell were tee shirts, shorts, track suits, caps or hats and socks.
4. The manner in which the transaction between Mr Goodwin and Mr Suffell was effected became the subject of starkly conflicting versions of events from these two men. It appears that the order for the sportswear was never fully completed by Canterbury in that some pairs of socks which were ordered were never supplied. Mr Suffel claims that, because of this "stuff up", payment for the clothing which was supplied was not pursued by Canterbury.
5. On the other hand, Mr Goodwin claims that he paid Mr Suffel in person in cash for the clothing. This conflict is dealt with further later in these reasons for decision.
6. It appears from the email exchanges between Mr Goodwin and Mr Suffell during the period July to December 2011, that the order placed by Mr Goodwin with Mr Suffell was for six tee shirts, six pairs of shorts, six pairs of socks, six caps or hats and three or four tracksuits. There is a discrepancy between the evidence of Mr Goodwin and Mr Suffell as to the number of tracksuits provided. The cost of these items was $540 or $620, depending on whether three or four tracksuits were provided, plus GST. According to Mr Goodwin, the socks were never delivered.
7. Shortly before 26 August 2011 a "demo set" of clothing, comprising one "Stripe Trackpant", one "Stadium Shorts" and one "Panel Tee", was delivered to ASNSW headquarters at Rozelle. Mr Goodwin acknowledged receipt of these three items in an email to Mr Suffell on 26 August 2011. It appears that the bulk of the order, minus the socks and caps, was delivered to ASNSW headquarters at Rozelle on 2 September 2011.
8. The last of the email exchanges between the two men in 2011 involved an email from Mr Goodwin to Mr Suffell on 19 November 2011 in the following terms: Hi Andrew Hope all is well with you, I am currently on some annual leave as my wife and I had a baby on Tuesday, 2 weeks earlier then expected. I have the cash at home for that training gear and would like to fix it up somehow. Do you have an account i can transfere the money into, if not i am back at work w/c 12th December, please let me know either way. Do you have the socks as that is all I am waiting for. Sorry for the delay in getting this payment to you.
9. Mr Suffell replied to Mr Goodwin on 22 November 2011 in the following terms: Hi Dane, Congrats mate to you and the family. How many socks are you missing? I will need to chase it up. Please find the banking details below for the payment, I will advise accounts to expect the payment. Regards Mr Goodwin claimed that banking details were not visible to him on the face of this email.
10. On 7 December 2011 Mr Goodwin emailed Mr Suffell in the following terms: Hi Andrew Hope all is well, I am just trying to sort out these accounts and can only find one that has been sent to me by Rachel for the value of $76.89 and $19.80 i think is for my gear and one other shirt. Do you have the other invoices, this is what i believe i owe you. 6 x shorts, shirts, sock and hat combination, $50.00 each 3 x tracksuits, $80.00 each. hope this helps.
11. It appears that the amount of $76.89 was referrable to Canterbury invoice 735830 dated 11/08/11 for one "Stripe Trackpant", one "Stadium Shorts" and three "Embroidery Charge". The amount of $19.80 was referrable to Canterbury invoice 738425 dated 24/08/11 for one "Panel Tee" which was listed on the previous invoice, but not shown as delivered. These three items appear to the "demo set" which Mr Goodwin claims were delivered shortly before 26 August 2011. Both of these invoices were addressed to: NSW AMBULANCE C/O DANE GOODWIN NSW STATE AMBULANCE OFFICE BALMAIN ROAD ROZELLE NSW 2039 There is no evidence that the "other invoices" which Mr Goodwin inquired about in his email of 7 December 2011 were sent to him at this time. It appears that he did not see any further Canterbury invoices until a period of 14 months had elapsed.
12. According to Mr Goodwin's evidence in these proceedings, Mr Suffell came out to ASNSW headquarters on 12 December 2011 to provide him with a demo hat with embroidery. Mr Goodwin claims that at that meeting he handed Mr Suffell a blue envelope with $670 in it which had been collected from other paramedics who purchased clothing. Mr Suffell denies that this transaction occurred and states that he was not even present at ASNSW headquarters on this day, or on any other day, apart from their initial meeting on 20 July 2011.
13. There does not appear to have been any communication between Mr Goodwin and Mr Suffell, or anyone else from Canterbury, between 12 December 2011 and 15 February 2013 when Rachel Bolton, Credit Manager with Canterbury, emailed Mr Goodwin in the following terms: Afternoon, Hoping you can help please. I have the attached invoices that are still appearing as outstanding for payment. Can you please advise when payment was made date and amount. Many thanks for your time.
14. The gap of fourteen months between contacts between Mr Goodwin and Canterbury is surprising if, as Mr Suffell claims, the clothing which had been supplied in 2011 had not been paid for. No satisfactory explanation was provided as to why it took Canterbury so long to chase up payment.
15. It is unclear precisely which invoices were attached to Ms Bolton's email but, during the proceedings, in addition to the two invoices referred to at paragraph 16 above, a further five Canterbury invoices were produced, all addressed to: NSW AMBULANCE C/O NORTHSIDE EMBROIDERY 22/1 SHORT STREET CHATSWOOD NSW 2067 In the "CHARGE TO:" box on each invoice (apart from the last one) the following entry appeared: "Cash Sale Acc - Andrew Suffell" Those five invoices contained the following information: Invoice 739336 dated 01/09/11 for 165 items of clothing plus 120 x "Embroidery Charge". Total including GST: $2,816.00 Invoice 739631 dated 01/09/11 for 6 x "Basic Cap" plus 6 x "Embroidery Charge". Total including GST: $198.00 Invoice 739632 dated 01/09/11 for 3 x "Stripe Trackpant", 4 x "Victory Jacket" plus 7 x "Embroidery Charge". Total including GST: $323.40 Invoice 767580 dated 02/05/12. This document was entitled "CREDIT ADVICE ADJUSTMENT NOTE" and appears to be a reversal for 102 items of clothing plus 119 x "Embroidery Charge". Total including GST: -$1,766.60. In the "REMARKS" section of this invoice the following note appears: "CUSTOMER ORDER CANCEL DUE TO CLIENTS BUDGET BEING PULLED. GOODS CAN GO BACK INTO STOCK. Clayton McErlane approved." Invoice 814333 dated 01/03/13 for 6 x "DRYSOK SUPERFLOW TRA" and 6 x "Basic Cap". Total including GST: $66.00 In the "CHARGE TO:" box on this invoice the following entry appeared: "Promo - Teamwear G'away - Andrew Suffell C/- Head Office FOC. Stock. (handwritten for Free Of Charge) Clearly, this last invoice was not attached to Ms Bolton's email of 15 February 2013.
16. Putting aside invoice 739336, which Mr Suffell explained as being an internal order by which stock was set aside or put on hold in anticipation of Mr Goodwin's order, and invoice 767580 which appears to be a partial reversal of invoice 739336, the remaining invoices still do not appear to match up with Mr Goodwin's order. There appears to be reference to four complete tracksuits comprising four "Stripe Trackpant" and four "Victory Jacket". However, apart from the initial "demo set" of one "Panel Tee" and one "Stadium Shorts" (invoices 735830 and 738425), there does not appear to be any reference in any of the other invoices forwarded to Mr Goodwin by Ms Bolton on 15 February 2013, to the remaining six tee shirts, six pairs of shorts and six pairs of socks which were part of Mr Goodwin's order.
17. The invoices which refer to clothing that was actually ordered by, and delivered to, Mr Goodwin in 2011 appear to be the following: Invoice 735830 dated 11/08/11 for 1 x "Stripe Trackpant", 1 x "Stadium Shorts" plus 3 x "Embroidery Charge". Total including GST: $76.89 Invoice 738425 dated 24/08/11 for 1 x "Panel Tee". Total including GST: $19.80 Invoice 739631 dated 01/09/11 for 6 x "Basic Cap" plus 6 x "Embroidery Charge". Total including GST: $198.00 Invoice 739632 dated 01/09/11 for 3 x "Stripe Trackpant", 4 x "Victory Jacket" plus 7 x "Embroidery Charge". Total including GST: $323.40
18. The total amount for these four invoices is $618.09 but there is no reference anywhere in them to the six tee shirts and six pairs of shorts which were ordered and delivered in 2011. Nor is there any reference to six pairs of socks which were ordered but not delivered. Invoice 738631 deals with the six caps which were part of Mr Goodwin's order but it appears that these caps were not delivered to him with the rest of the clothing.
19. These invoices are extremely confusing with respect to the items with which they deal and the items with which they do not deal. No satisfactory explanation was provided to the Commission as to how or why these invoices, which bore little relationship to the order placed by Mr Goodwin, were forwarded to him some fourteen months after the clothing had been delivered.
20. Mr Goodwin responded to Ms Bolton's email on the same day in the following terms: Hi Rachel These invoices are still outstanding as we are still awaiting socks and hats to go with our order, does Andrew Suffell still work with you guys as he who I was dealing with. Regards In his evidence in these proceedings, Mr Goodwin claimed that, in stating that the invoices were still outstanding, he meant that he had not received the hats and socks which had been ordered. After sending this email, he reviewed the invoices which were attached to Ms Bolton's email and realised that they were not consistent with his order and, in some instances, were far in excess of what he had agreed to purchase from Mr Suffell.
21. Mr Goodwin claims that he then called Ms Bolton to discuss the matter and advised her that he had made a cash payment for the items he had arranged with Mr Suffell and he was still waiting for delivery of socks and hats. He further explained that some of the invoices provided by her were not for clothing he had ordered, for example one invoice referred to up to 50 items.
22. There was a further email exchange between Mr Suffell and Mr Goodwin later in February 2013 concerning the undelivered hats and socks. There is no reference in this exchange to any outstanding unpaid invoices. Shortly after this exchange invoice 814333 was generated. The notations on this invoice suggest that the 12 items referred to in it were to be provided by Mr Suffell free of charge, although Mr Goodwin maintains that the socks he ordered were never provided. No explanation was provided by Mr Suffell as to why Canterbury in 2013 was apparently prepared to provide Mr Goodwin with six pairs of socks and six caps free of charge when, as far as Canterbury were concerned, he had not paid for the clothing it had supplied to him in 2011.
23. On 22 April 2013 Ms Bolton emailed Mr Goodwin asking if he had received his "missing stock". Mr Goodwin replied on 29 April 2013 indicating that he had not. After this time there does not appear to have been any further approaches from Canterbury to Mr Goodwin over the issue of unpaid invoices.
24. One of the officers in the SOU who gave money to Mr Goodwin for the purchase of items of Canterbury sportswear in 2011, was Station Officer Victoria Campbell. According to Ms Campbell, when Mr Goodwin provided her with a Canterbury tracksuit, tee shirt, pair of shorts and cap, she handed him $150 in cash and asked him for a receipt so she could claim the expenditure on her tax return. According to Ms Campbell, Mr Goodwin replied with words to the effect, "When I pay the guy I will get a receipt.
25. Ms Campbell claimed that, in or around November 2012, she again asked Mr Goodwin for a receipt and he replied with words to the effect, "No I haven't paid the guy yet". She recalled Mr Goodwin mentioning that he was waiting on socks to complete the order.
26. On 20 October 2014, Ms Campbell met with Louise Clarke, Director Professional Standards for ASNSW, to discuss a range of issues and concerns involving the SOU. Ms Campbell provided Ms Clarke with a 17 page document which outlined a large number of complaints and allegations by Ms Campbell against Mr Goodwin and a number of other officers of ASNSW, including Mr Goodwin immediate supervisor, Superintendent Keith Williams, Manager Special Operations, SOU, going back as far as 2011. One small paragraph of that document concerned the failure of Mr Goodwin to provide Ms Campbell with a receipt for the clothing she had purchased in 2011. She stated that, "… although I have paid $150 to DG, it would appear to be the case that this payment has not been forwarded to the supplier of this clothing".
27. On 28 November 2014, David Dutton, Executive Director Service Delivery for ASNSW, wrote to Mr Goodwin and outlined seven matters concerning him which arose out of Ms Campbell's complaint. The seventh of those matters was expressed as follows: 7. Around November 2011 you allegedly failed to pay clothing companyCanterbury for clothing you ordered for Special Operations Unit (SOU) staff. Mr Goodwin was required to respond to this allegation involving, as it did, a relatively minor transaction which had occurred three years previously. At no point does it appear that anyone in the management of ASNSW gave any thought to the inherent difficulty in requiring someone to recall the detail of such a transaction, including dates, times and locations, which so long ago.
28. On 8 December 2014, Mr Goodwin provided Mr Dutton with a comprehensive written response to each of the matters raised with him, including matter number 7. In relation to that matter, Mr Goodwin stated: In November 2011 I had placed an order with Canterbury clothing for some fitness gear. I issued the gear to the people that had ordered it but was waiting on a back order of some hats and socks. I made arrangements with the sales rep to withhold final payment to Canterbury until all the clothing had been delivered. I had made several enquiries regarding the gear but have still not received it. Please see attached email "O" regarding the outstanding clothing. This is a private arrangement between Canterbury and me. I am unsure what this has to do with Inspector Campbell.
29. Attached to Mr Goodwin's response to Mr Dutton was the email exchange between Ms Bolton and Mr Goodwin in February 2013 which is referred to at paragraphs 18-25 above.
30. On 14 January 2015 Mr Dutton again wrote to Mr Goodwin setting out the 'outcome of preliminary assessment' in relation to a number of the allegations made against him by Ms Campbell. That letter included the following: Outstanding account with Canterbury clothing company Again, given the connection to the workplace, I am extremely concerned about this issue which has been on-going for three years. Your actions in failing to finalise this matter with Canterbury has the potential to bring NSW Ambulance into disrepute. I direct you to finalise the account with Canterbury immediately. Again you are to advise Mr Buddeke when this has occurred. Failure to close this matter in a timely manner may be seen as a breach of a lawful direction and may amount to an allegation of misconduct. Mr Buddeke is an Investigation Officer within the Professional Standards Unit of ASNSW.
31. On 10 February 2015 Mr Goodwin sent an email to Mr Suffell in these terms: Hi Andrew It has been a long time since we have spoken, I just want to clear up payment for the gear you supplied, can you please advise me of the outstanding cost and payment method. Regards On 12 February 2015 Mr Suffell replied as follows: Hi Dane This debt has been wiped - nothing outstanding. Thanks
32. On 23 February 2015 Mr Buddeke sent an email asking Mr Goodwin to let him know a suitable time to call about two issues, one of which was the clothing issue. On 16 March 2015 Mr Goodwin emailed Mr Buddeke confirming their conversation on 4 March to the effect that all outstanding accounts have been settled.
33. On 29 April 2015 Mr Buddeke emailed Mr Goodwin asking if he had been able to make any progress on the production of a tax receipt for the training clothes. Mr Goodwin responded on the same day and advised Mr Buddeke that he had a tax receipt and would drop it off the following day. On 30 April Mr Goodwin handed Mr Buddeke a receipt which he had created and signed for Ms Campbell for the amount of $130. According to Mr Buddeke, Mr Goodwin stated: I was not able to get a receipt from Canterbury for the individual clothing as I paid in bulk (or words to that effect). According to Mr Goodwin, he said: I never got a receipt because I paid in cash. Mr Goodwin also provided Mr Buddeke with copies of three invoices from Canterbury for amounts totalling $598.29.
34. On 30 April 2015 Mr Buddeke emailed Ms Campbell and passed on the information which Mr Goodwin had given to him together with the copies of the Canterbury invoices. Ms Campbell then contacted Canterbury herself to get a copy of the tax receipt and was, according to her, advised that the invoices were never paid and were written off as a bad debt.
35. On 27 May 2015 Ms Campbell emailed Mr Buddeke and advised him of this stating, "I would like for my money to be paid to the rightful owner and receive a receipt for same." Mr Buddeke made his own enquiries of Canterbury and was advised that Canterbury was not looking for reimbursement for the clothing it had provided in 2011.

The investigation

1. By letters dated 10 and 30 September 2015 Mr Homden engaged Peter Harvey, Principal Consultant of WEIR Consulting Pty Ltd, to investigate allegations of misconduct against Mr Goodwin, the particulars of which are set out at paragraph 3 above.
2. Clearly, the most serious matter is allegation 2 which is to the effect that Mr Goodwin collected money for the training clothing from colleagues but did not pass that money on to the supplier, Canterbury.
3. As part of his investigation, Mr Harvey received written statements from Ms Campbell and Mr Buddeke. He also interviewed seven other persons including Mr Goodwin, Mr Suffell and a number of officers who had given money to, and received clothing from, Mr Goodwin in 2011.
4. Mr Suffell stated: It was CanterburyNZ's account section that chased up the outstanding account and as CanterburyNZ stuff up the order so Inspector Goodwin received a credit, which is normal in such situations and particularly as the account was only for approximately $500. In a follow up phone call with Mr Harvey, Mr Suffell stated that Mr Goodwin did not give or pay him cash for the training clothing. He stated that he is not allowed to accept cash.
5. On 16 October 2015 Mr Harvey conducted a recorded interview with Mr Goodwin in relation to the four allegations against him. During this interview Mr Goodwin was adamant that he had paid Mr Suffell in cash for the clothing which Mr Suffell had supplied on the day that Mr Suffell delivered the clothing to him. In a follow up email of 30 October 2015 Mr Goodwin advised Mr Harvey that the cash payment was made by him to Mr Suffell on 2 September 2011. Mr Goodwin also stated that at the time of answering Mr Dutton's questions he had been "suffering from severe depression as a result of a Coronial Inquest into the death of a colleague that I had direct involvement in…"
6. After the interview with Mr Goodwin, Mr Harvey was provided with the email exchange between Mr Goodwin and Mr Suffell which occurred in November/December 2011 and which appeared to contradict Mr Goodwin's claim that he paid Mr Suffell for the clothing in cash on 2 September 2011. This email exchange is set out at paragraphs 13-15 above.
7. Prior to the preparation of his investigation report, in an email dated 31 October 2015 to Graeme Willis, Senior Investigation Officer (Operations), Professional Standards Unit / People & Culture for ASNSW, Mr Harvey expressed his view about providing these emails to Mr Goodwin so that he may respond to them. Mr Harvey stated: I have just had a quick look and the emails provided by Inspector Goodwin are the same as I already have, however, he has failed to provide at least 1-2 emails, maybe more, that I intend to rely on and were only discovered this past week in relation to the emails that you provided me. I will map out the emails provided by Inspector Goodwin against those I have to identify gaps. Some emails will not be relevant, but as already noted, a number are important as they seem to contradict evidence provided by Inspector Goodwin. For reasons of procedural fairness, I believe he should have the opportunity to respond to the documents I intend to rely on that I have not already provided him…. Additionally, Inspector Goodwin stated that he was suffering 'severe depression' at the time of answering Mr Dutton's question/s as the result of a Coronial Inquest that involved the death of a colleague which he had direct involvement in - is this correct?
8. On 2 November 2015 Mr Willis responded as follows: I do have knowledge of an incident, occurring in December 2011, where a NSW Ambulance paramedic died as the result of injuries sustained during a winching incident at Carrington Falls, NSW. Mr GOODWIN was involved in the SCAT (Special Casualty Access Team) deployment role at the time. He was not a crew member on the helicopter or part of the ground crew. A search of our records would suggest that Mr GOODWIN was one of eight NSW Ambulance witnesses called to give evidence at the subsequent inquest. The matter was heard before Deputy State Coroner C FORBES with the following hearing dates: 21 July - 25 July 2014 and 4 August - 6 August 2014. Her findings were handed down on 16 September 2014. I have no knowledge as to Mr GOODWIN's state of mind at the time he responded to Mr DUTTON.
9. Mr Harvey responded to Mr Willis on the same day in the following terms: Thank you. This contradicts Inspector Goodwin's comments as sent to me on Friday. As mentioned to you on the telephone, I spoke with Elaine Brus and she is of the opinion that Inspector Goodwin has been given procedural fairness in terms of being asked if he paid for the goods in question and he has been given opportunity to respond to such questions and therefore it is not necessary to provide him with any further documentation on which I intend to rely on. Therefore I will not be sending Inspector Goodwin any further documents/emails for comment…
10. A number of observations need to be made about this email exchange. Firstly, one of the comments in the email from Mr Goodwin to Mr Harvey on Friday 30 October 2015 was to the effect that, at the time when Mr Goodwin was responding to Mr Dutton's questions, he had been suffering from severe depression as a result of a coronial inquest into the death of a colleague that he had direct involvement in. To the extent that Mr Willis advised Mr Harvey that Mr Goodwin had no direct involvement in the incident concerning the death of his colleague, and to the extent that Mr Harvey accepted this advice as contradicting Mr Goodwin's comments to him on this issue, both Mr Willis and Mr Harvey were wrong.
11. Mr Goodwin's unchallenged evidence in these proceedings was that on 24 December 2011, the day when Paramedic Mick Wilson died on duty whilst being winched down to an injured person at the base of a cliff, Mr Goodwin was the on call Special Operations duty coordinator and was in possession of the duty phone. He had refused a request for ground resources, a decision about which some of his colleagues had been critical. What followed were investigations, inquests and a coronial inquest which continued well into 2014. Mr Goodwin was eventually cleared of any wrongdoing but claims that, during this time, he was subject to serious bullying and threats and suffered depression. However, based on the advice received from Mr Willis, Mr Harvey concluded as follows: While, it may be true that Inspector Goodwin was affected by the death of a colleague, there was no presenting evidence to indicate that this death affected his capacity to undertake his work, nor does it seem reasonable that his change of testimony could be linked to an inquest that occurred approximately four to five months prior to his written statement.
12. Secondly, on the issue of procedural fairness, in his investigation report Mr Harvey noted that the claim by Mr Goodwin that he paid cash on delivery of the clothing differed from his statement to Mr Dutton of 8 December 2014 to the effect that he had withheld payment to Canterbury, as arranged with the sales representative, on the basis that he was still waiting for the delivery of hats and socks.
13. Mr Harvey also noted that, whilst Mr Goodwin did provide some emails as supporting evidence, he failed to present other emails which would indicate that he did not pay for the training clothing as he claimed. Mr Harvey identified two of the "other emails" as follows: 19 November 2011 - Inspector Goodwin emailed Mr Suffel and stated he had the cash at home to pay for his purchases. It is noted that in this email Inspector Goodwin expressed a desire to pay the outstanding account. He also asked for the socks that he was waiting for and apologises for the delay in paying the account. 7 December 2011 - Inspector Goodwin emailed Mr Suffel where he stated that he was trying to sort out the accounts.
14. It is apparent that Mr Harvey regarded these two emails as important pieces of evidence which tended to disprove Mr Goodwin's claim the he paid Mr Suffell in cash for the clothing on 2 September 2011 and which supported Mr Suffell's claim that he never received any cash from Mr Goodwin. In the cross-examination of Mr Harvey the following exchange occurred: Q. Having now reviewed those e-mails, those, also for the benefit of the commission and the parties, they also appear at DG1.09 and AS3, as I understand it, those e-mails are perhaps the two most important e-mails in making your conclusion. That's right, isn't it? A. No, I wouldn't say they're the two most. They certainly were important to my making findings, yes. Q. So you agree they were important. Do you recall why they were important? A. Yes, I recall because they contradicted Inspector Goodwin's statement where he said that he had paid for the goods.
15. However, these two emails were deliberately not drawn to Mr Goodwin's attention by Mr Harvey before Mr Harvey's findings were made and his investigation report prepared.
16. The following is an extract from Mr Harvey's investigation report with some notations added by me: 6.73 While Inspector Goodwin did provide some emails as supporting evidence, he failed to present other emails that would indicate that he did not pay for the training clothing on 2 September 2011 as he claimed. Special note is made to the following emails: 19 November 2011 - Inspector Goodwin wrote to Mr Suffell and stated he had the cash at home to pay for his purchases. It is noted that in this email Inspector Goodwin a desire to pay the outstanding account. He also asked for the socks that he was waiting for and apologises for the delay in paying the account. (Notation: This email was not drawn to Mr Goodwin's attention by Mr Harvey) 22 November 2011 - Mr Suffell provided Inspector Goodwin with 'banking details' for payment. 7 December 2011 - Inspector Goodwin wrote to Mr Suffell where he stated that he was trying to sort out the accounts. (Notation: This email was not drawn to Mr Goodwin's attention by Mr Harvey) 15 February 2013 - Inspector Goodwin stated to Ms Bolton that the invoices were still outstanding on the basis that he was still waiting for socks and hats to be delivered. (Notation: At this point Mr Harvey does not refer to the explanation that Mr Goodwin provided to Mr Harvey on 30 October 2015 to the effect that Ms Bolton's email to him, which preceded his email to her, had attached to it six invoices, two of which (one for $2,816 and one for -$1,766.60) were not referrable to any clothing ordered or received by Mr Goodwin. After sending this email, Mr Goodwin claims that he then called Ms Bolton to discuss the matter and advised her of the payment he had made) 10 February 2015 - Inspector Goodwin wrote to Mr Suffell saying that he wanted to "…clear up payment for the gear you supplied…" and asked how much was owed and how to pay. 6.74 The aforementioned emails show that by his own account, Inspector Goodwin did not pay the total sum of money on 2 September 2011 for the items of clothing he ordered from Canterbury as he claimed. Further, Mr Suffell was adamant that he did not receive any monies from Inspector Goodwin, claiming that he could not have accepted a cash payment, which corresponds to Ms Bolton's testimony and the emails of 19 & 22 November 2011. Additionally, Canterbury has consistently claimed that it did not receive monies from Inspector Goodwin and had written off the debt.
17. It is apparent from Mr Harvey's investigation report that he attached particular significance to the emails from Mr Goodwin to Mr Suffell of 19 November and 7 December 2011 in forming his conclusion that Mr Goodwin had not paid Mr Suffell for the clothing in cash on 2 September 2011, as Mr Goodwin had claimed. Yet these two emails were deliberately not drawn to Mr Goodwin's attention before Mr Harvey formed his conclusion and prepared his investigation report.
18. Contrary to the advice given to Mr Harvey on this issue by his colleague, his failure to draw these emails to Mr Goodwin's attention was procedurally unfair to him. The requirements of procedural fairness were not satisfied by simply asking Mr Goodwin if he paid for the clothing and allowing him to respond to that question. The two emails in question should have been drawn to his attention so that he could consider his response in their light. This is especially so given that he was being investigated in late 2015 about events which had occurred four years previously.
19. In Bigg and Another v New South Wales Police Service [(1998) 80 IR 434] the Full Bench (Bauer and Schmidt JJ, Murphy C) stated (at 454): As the Full Commission made plain in Busways, an employee is entitled to know prior to dismissal the nature of and, as necessary, the detail of the material known to the employer which is against the employee's interests. The employee is also entitled to an opportunity to respond to that material. If an employer fails to give an employee such an opportunity before dismissal, that is a matter which the Commission may take into account in proceedings brought under s 246 in determining whether the dismissal was harsh, unreasonable or unjust.
20. Mr Harvey proceeded to form the view that Mr Goodwin had not paid Mr Suffell for the clothing, as he had claimed. This view was formed, at least in part, on the basis of emails, including the two emails set out at paragraphs 13 and 15 above, which indicated to Mr Harvey that Mr Goodwin did not pay for the training clothing on 2 September 2011 as he claimed. These two emails were deliberately withheld from Mr Goodwin by Mr Harvey, on advice from his colleague.
21. The significance which should attach to this denial of procedural fairness is further considered later in these reasons for decision.
22. In his investigation report Mr Harvey stated, in relation to allegations 1, 2 and 4, that, in his view, on the balance of probabilities, there was evidence to substantiate these allegations and to treat them as disciplinary matters. In relation to allegation 3, it was Mr Harvey's view, on the balance of probabilities, that the evidence did not substantiate this allegation, however, the evidence did show that Mr Goodwin was dishonest in his dealings in relation to this matter.

The disciplinary process

1. By letter dated 25 February 2016 Mr Goodwin was advised by Mr Homden that, having considered the investigation report, he had formed the opinion that Mr Goodwin had engaged in misconduct. In Mr Homden's opinion allegation 1 was partially substantiated because Mr Goodwin's conduct had allowed Canterbury to reasonably infer that he was representing ASNSW and joining ASNSW in a financial transaction, despite this not being Mr Goodwin's intention. In Mr Homden's opinion allegations 2 and 4 were substantiated but allegation 3 was not substantiated. Mr Homden advised Mr Goodwin that the severest penalty he would conceivably impose was a reduction in classification or position to Station Officer. Mr Goodwin was invited to provide Mr Homden with a written submission and any additional information and to attend an interview with him, accompanied by a union or other representative, before a final decision was made.
2. Mr Goodwin's written submission was received by Mr Homden on 8 April 2016. In that submission Mr Goodwin maintained that he had paid Mr Suffell in cash for the clothing supplied. Mr Goodwin maintained this position in a face to face meeting with Mr Homden on 22 April 2016. Mr Goodwin was accompanied at this meeting by James Fox of the Health Services Union.
3. According to Mr Homden, Mr Goodwin said that he knew there were inconsistencies in his explanation about making the payment but this was because there was a lot going on at the time. Mr Homden understood Mr Goodwin's comment about inconsistencies as being a reference to his two emails to Mr Suffell of 19 November and 7 December 2011. Mr Homden concluded that Mr Goodwin had not paid Mr Suffell for the clothing supplied to him. Mr Homden found Mr Goodwin's explanation difficult to reconcile with his email where he said he was still holding the cash and wanted to make a payment by bank transfer. Mr Homden was concerned that, even in the light of that email, Mr Goodwin continued to stand by his version of events.
4. It does not appear that, at the meeting on 22 April 2016, Mr Homden's concern about these two emails was specifically raised with Mr Goodwin with a request that he explain their contents in light of his previous statement that he had paid Mr Suffell in cash on 2 September 2011.
5. It appears from a briefing note dated 26 April 2016 prepared by Sacha Keady, Senior Investigation Officer at ASNSW, that particular significance was given to Mr Goodwin's failure to provide any explanation in either his verbal or written submissions as to why he was emailing Mr Suffell in November/December 2011 to state that he still owes him money, when he is saying that he paid cash on 2 September 2011.
6. However, it does not appear that, at any point during the disciplinary process, Mr Goodwin was specifically asked to reconcile his earlier claim that he had paid Mr Suffell in cash for the clothing on 2 September 2011, with his emails to Mr Suffell of 19 November and 7 December 2011.
7. By letter dated 29 April 2016 Mr Homden advised Mr Goodwin of his decision to reduce Mr Goodwin's classification or position to Station Officer in relation to allegations 2 and 4. Mr Goodwin was also issued with a formal warning in relation to his conduct.

THE APPEAL

1. Because this appeal is in the nature of a hearing de novo, the outcome will not be determined on the basis of the procedural irregularities identified above. It follows that I attach little weight to the investigation report of Mr Harvey and the findings and conclusions contained therein. Likewise, I attach little weight to the disciplinary decision of Mr Homden which is the subject of this appeal and which was based largely on the findings in the investigation report. The conclusions reached by Mr Harvey and Mr Homden were affected by the failure on the part of both of them to put squarely to Mr Goodwin that his claim that he paid Mr Suffell in cash on 2 September 2011 did not sit comfortably with his emails to Mr Suffell of 19 November and 7 December 2011, and that he needed to explain this apparent inconsistency. Had that been done, Mr Goodwin would have had the opportunity to offer the explanation which he has given in these proceedings, which is to the effect that his initial recollection as to the date on which he paid Mr Suffell was wrong. This is hardly surprising, given that it was approximately four years after the events in question when Mr Goodwin advised Mr Harvey that the cash payment was made on 2 September 2011. This gap in time and the impact of the intervening events on Mr Goodwin's ability to recall with precision times and dates connected with a relatively minor transaction are matters which do not appear to have been given any real consideration by Mr Harvey, by Mr Homden or by anyone else within the management of ASNSW who has had any involvement with this matter. Further, Mr Harvey and Mr Homden made their findings and reached their conclusions without having had the considerable advantage of observing the witnesses in this matter giving their evidence and having that evidence tested under cross-examination.
2. The key issue for determination in this appeal rests on the diametrically opposed evidence of Mr Suffell and Mr Goodwin as to whether or not Mr Goodwin paid Mr Suffell in cash in 2011 at ASNSW's headquarters at Rozelle for the clothing supplied by Canterbury and distributed to members of Mr Goodwin's team.

Andrew Suffell

1. Mr Suffell was adamant that he did not receive any cash payment from Mr Goodwin. He stated that he did not accept cash payments, has never accepted cash payments and was not authorised to accept cash payments. Further, he stated that he did not deliver the clothing to Mr Goodwin.
2. Mr Suffell claimed that he did not chase up Mr Goodwin for payment for the clothing because he understood that parts of the order, some socks and caps, had not been delivered. It was not explained how Mr Suffell came by this understanding as there does not appear to have been any communication between the two men after 7 December 2011 until February 2013.
3. Mr Suffell was cross-examined at some length about the contents of the seven invoices which are referred to at paragraphs 16 and 20 above. He was generally unable to cast much light on a number of the confusing aspects of these documents.
4. The following table sets out the differences between the "stock on hold" invoice 739336 dated 01/09/16 and the "stock reversal" invoice 767580 dated 02/05/12: Item invoice 739336 invoice 767580 difference Socks 50 -36 14 Shirts 55 -18 37 Shorts 60 -48 12 Embroidery 120 -119 1 Total Price $2,816.00 -$1,766.60 $1,049.40

1. Mr Suffell was unable to explain the differences between these two invoices. These differences were certainly not attributable to the order of six pairs of socks, six tee shirts and six pairs of shorts which Mr Goodwin placed with Mr Suffell. In fact, only one tee shirt and only one pair of shorts appear on any of the seven invoices which were produced in evidence (invoices 735830 dated 11/08/11 and 738425 dated 24/08/11). Unsurprisingly, Mr Suffell described Canterbury's ordering and invoicing system as "terrible" and "poor".
2. Mr Suffell was asked about the price of the "Basic Cap" on invoice 739631 (dated 01/09/11) being $30 each. The initial exchange was as follows: Q. The price for hats is $30 each, is that correct? A. Yes. Q. That's a relatively expensive price for a basic cap, isn't it? A. Sorry, are you aware of the Canterbury brand? Q. I am. A. Okay. It can range, our caps for licensed teams, or whatever it may be, can range up to that mark. In this case, yes it is. Q. So your evidence is, that is a-- A. Expensive cap. Q. --unusually high price for basic cap, as it appears on the invoice. A. Most certainly.
3. Later in the cross-examination of Mr Suffell, he was asked about invoice 814333 (dated 01/03/13) which showed that the price of the "Basic Cap" was $5 each. The following exchange occurred: Q. And you can now see that the free of charge hats are $5 each, in the previous invoice they were $30. A. That's a more realistic price, yes. Q. So when it was actually proposed that Mr Goodwin was to be charged for the goods, the price was $30 each, but now that they're free of charge, they're $5 each? A. No, no. They're normally $5 each. As I mentioned, with $30, it was a keying error, it looks that way. Q. It looks like that was a keying error. That receipt, which was pursued as owing payment-- A. Yes. Q. --which was $180 for six hats-- A. Yes. In fact, Mr Suffell had not previously mentioned that the $30 price per cap was a "keying error". He had sought to justify that price by reference to the "Canterbury brand".
4. In his first witness statement Mr Suffell explained that the term "Cash Sale Acc", which appeared on all of the invoices which Ms Bolton emailed to Mr Goodwin on 15 February 2013, does not indicate that payment was to be made in cash, but was a term used to distinguish sales to new customers or those with a one-off or occasional order, from the sales to customers who have agreed to ongoing trading terms with Canterbury.
5. In a telephone interview with Mr Harvey on 30 September 2015 Mr Suffell stated that once stock is delivered, the customer has 30 days to make a payment. The invoices themselves state "TERMS: PAYMENT 25 DAYS FROM DATE OF STATEMENT".
6. In his first witness statement Mr Suffell stated that he was responsible for chasing up those payments due on a "Cash Sale" account but not paid within seven days of delivery. However, under cross-examination Mr Suffell denied that it was his responsibility to chase debt.
7. Under cross-examination Mr Suffell reiterated that he did not accept a cash payment from Mr Goodwin.
8. Despite some minor inconsistencies in his evidence, such as those mentioned above, Mr Suffell gave his evidence in a forthright and convincing manner. There was nothing in Mr Suffell's demeanour or responses to questions which would warrant the making of an adverse credit finding against him and I decline to make such a finding.

Victoria Campbell

1. Ms Campbell was cross-examined on the content of her 17 page written disclosure of 10 October 2014. Her complaints against Mr Goodwin ranged over such matters as: - An alleged verbal berating Mr Goodwin had given her three years previously. - A second and third alleged verbal berating Mr Goodwin had given her two years previously. - Mr Goodwin being angry at another officer two years previously. - Ms Campbell not being included in any aspect of the preparation or running of a rescue course in 2013. She claimed the details of the course were deliberately withheld from her and that frequently she would be ignored if she tried to communicate with Mr Goodwin about the course. - A second incident of Mr Goodwin being angry with another officer in September 2013. This incident was not witnessed by Ms Campbell but she claimed that she was told about it by the officer involved. - An incident in October 2013 where Mr Williams became angry with Ms Campbell over an email she had sent him and he commented that had she been a 'man' he didn't know what he would have done. Ms Campbell took this comment as suggesting something violent and claimed that she immediately felt threatened and intimidated. - A further incident in October 2013 at a meeting with Mr Williams, Mr Goodwin and another officer where Ms Campbell offered an apology for a heated discussion she had had with Mr Goodwin about a work issue. She claimed that Mr Goodwin became aggressive in response to this and she felt that he was asserting his authority with her and that this appeared to be supported by Mr Williams. Ms Campbell was upset from this meeting and felt that she was in a no win three versus one situation. She felt that this was significant intimidation and bullying in the workplace. - Ms Campbell experienced a number of occasions where some staff in the office would not speak to her. She stayed in the back office to avoid any contact with other staff. - Ms Campbell claimed that, on one occasion in October 2013, Mr Goodwin completely ignored her. - Ms Campbell claimed that Mr Goodwin deliberately did not consult with her about his use of an ASNSW vehicle which she claimed had been allocated to her to look after. - Ms Campbell also claimed that Mr Goodwin had been deliberately not communicating with her, including not replying to any of her emails. - Ms Campbell believed that Mr Goodwin and some of his 'mates' had done a swiftwater instructor course from which she had been deliberately excluded. At one stage Ms Campbell tried to talk to Mr Williams and told him that she felt bullied and harassed, particularly by Mr Goodwin. According to Ms Campbell, Mr Williams simply looked at her with an incredibly angry look and did not say anything. - Ms Campbell was concerned that she received an email from Mr Goodwin and despite the fact that he had not even acknowledged her for the past six months, he started his email in a friendly manner, asking how her course was going. Ms Campbell believed that Mr Goodwin had been advised of her concerns and was trying to make it look like he was being courteous toward her. - Another of Ms Campbell's allegations against Mr Goodwin was to the effect that, on a number of days and half days when Mr Goodwin could not attend work due to childcare issues, it was Ms Campbell's belief that he may have documented carer's leave on one of these occasions, but on other occasions he completed his timesheets as if he had been at work all day. - Ms Campbell further claimed that, during November 2012 there appeared to be a number of days where Mr Goodwin was not at work. These were nearly always days when his wife was working. Ms Campbell was unsure of what was documented on Mr Goodwin's timesheet during this time but, according to Ms Campbell, it was generally accepted by Mr Williams that you could have a day off work and yet still document your timesheet that you were working. - A further allegation was that from Saturday 29 December 2012 to Friday 11 January 2013 Mr Goodwin was acting in Mr William's position as the Rescue/SCAT Manager. During this two week period Mr Goodwin was not at work on 1 January (public holiday), 4 and 11 January due to childcare issues as his wife was working on these days. Ms Campbell did not believe that Mr Goodwin had any 'TOIL' or 'ADOs' owing at this time. - Ms Campbell was also concerned that she was being required to work more public holidays than Mr Goodwin and others in the office of the same rank and pay scale as her. - Ms Campbell alleged that, on 2 November 2013, Mr Goodwin allocated himself overtime to work at bushfires in the Blue Mountains. - It was further alleged that, on 5 November 2013, an officer was put on overtime by Mr Goodwin and another officer was in the office. On 7 November 2013 an officer was put on overtime and another officer was in the office and had not been asked to help. This demonstrated to Ms Campbell that the requirement regarding asking staff in the office to help before using overtime did not apply to Mr Goodwin, only to her. Throughout her written disclosure Ms Campbell raised a number of concerns about the allocation of overtime and other shift arrangements. - Ms Campbell also alleged that, on 17 April 2014, Mr Goodwin attended a royal visit whilst on annual leave and retained a service vehicle whilst on annual leave which, according to Ms Campbell, was contrary to policy.
2. In or about November 2014 Ms Campbell authored a further five page document setting out her concerns about the allocation of overtime, Mr Goodwin taking days off with no official leave or 'TOIL', Mr Goodwin routinely retaining his car during periods of annual leave, another officer making fraudulent overtime claims and claims of intimidation, bullying and harassment of her by Mr Williams and Mr Goodwin.
3. Apart from the issue of the receipt for the money Ms Campbell paid for the clothing in 2011, none of the myriad of other allegations she raised against Mr Goodwin were sustained as misconduct by him and no disciplinary action was taken against him as a result of them.
4. Under cross-examination Ms Campbell maintained that she asked Mr Goodwin for a receipt at the time she received the clothing in 2011and gave him $150, and again when she was doing her tax return in or around November 2012.
5. It was apparent that Ms Campbell had made a multitude of allegations against Mr Goodwin which ranged from quite serious allegations down to more trivial matters such as Mr Goodwin allegedly being angry with another officer, an incident which Ms Campbell had not even witnessed herself. It is also apparent that, with respect to the vast bulk of allegations levelled at Mr Goodwin by Ms Campbell, no action was taken by management of ASNSW in relation to them.
6. It is demonstrably clear that Ms Campbell had mounted a major vendetta against Mr Goodwin and other officers with whom she had worked. I gained the impression that her evidence was coloured to a certain extent by her obvious dislike for Mr Goodwin. Ms Campbell, under cross-examination, denied that she disliked Mr Goodwin. I do not accept her denial and I have serious reservations about other aspects of Ms Campbell's evidence, in particular, her evidence about the conversations which she alleges took place with Mr Goodwin in 2011 and 2012 about the issue of a receipt.

Michael Homden

1. Mr Harvey's investigation report was received by Mr Willis on 10 November 2015. On 12 November 2015 Mr Willis prepared a number of briefing notes. The first of those briefing notes was entitled "Investigation Report - Dane Anthony GOODWIN". That briefing note had attached to it another briefing note entitled "Review of Investigation Report - Dane Anthony GOODWIN", together with a further briefing note entitled "Checklist for decision makers reviewing investigation reports under PD2014_042 Managing Misconduct". On the second briefing note on 23 December 2015 Mr Homden recorded in handwriting his findings that allegations 2 and 4 were sustained.
2. In relation to allegations 2 and 4 Mr Homden wrote: 2 SUSTAINED. There is considerable evidence available from the variety of witness sources that the debt owed to Canterbury was never lawfully discharged by Insp GOODWIN, this accounts relating to this [indecipherable] transaction are shown by the evidence presented to be misleading. As such I find his actions to be well below the standard expected for a senior manager and Inspector: As he failed to carry out his duties with openness, honesty and accountability. On the balance of probabilities his behaviour has breached each of these. I did NOT find evidence to support (direct evidence) that he intended to steal the monies entrusted to him by colleagues; as there appears no intention to 'permanently deprive'. He did however clearly fail to discharge the debt. 4 SUSTAINED. Significant evidence presented that Insp GOODWIN chose to provide misleading statements in relation to key activities in early 2015 to members of Professional Standards & Conduct. His behaviour appears to lack honesty and demonstrates a lack of personal accountability in the nature of his dealings and explanations on the circumstances of this debt. CONSIDERATIONS In relation to allegations 2 & 4 I find the matters fully sustained…. The full facts and circumstances taken into I determine that a reduction in rank is an appropriate disciplinary action.
3. Mr Homden made these findings and determined the appropriate disciplinary action before the investigation report had been provided to Mr Goodwin in order for him to respond to it. The investigation report was not provided to Mr Goodwin by Mr Homden until on or about 25 February 2016. The covering letter from Mr Homden advised Mr Goodwin that Mr Homden had "formed the opinion" that he, Mr Goodwin, had engaged in misconduct, the particulars of which were as per Mr Homden's findings which he had recorded in hand writing on 23 December 2015.
4. Under cross-examination Mr Homden confirmed that he relied on Mr Harvey's investigation report on the basis that it was produced in a way that was procedurally fair. Mr Homden also confirmed that he relied upon Mr Goodwin's emails to Mr Suffell of 19 November and 7 December 2011 as two material pieces of evidence that led him to his conclusion that there were inconsistencies in Mr Goodwin's explanation about having paid Mr Suffell for the clothing. However, Mr Homden confirmed that, at the meeting he had with Mr Goodwin on 22 April 2016, he did not ask Mr Goodwin to clarify this point or to reconcile his explanation with his two emails to Mr Suffell in November/December 2011.
5. Mr Homden's opinion that Mr Goodwin had not passed on the money which he had collected from his colleagues to Canterbury for the clothing, was based on what he perceived to be inconsistencies between Mr Goodwin's account of what had occurred and that of Mr Suffel as well as inconsistencies with Mr Goodwin's responses to Mr Dutton in December 2014 and to Mr Buddeke in April 2015.
6. Mr Homden accepted that this incident was out of character for Mr Goodwin in the time he had known Mr Goodwin.

Dane Goodwin

1. Mr Goodwin was adamant that he paid Mr Suffell in cash for the clothing supplied to him. He explained that his initial recollection that this occurred on 2 September 2011 was, in the light of the email exchange between himself and Mr Suffell in November/December 2011, incorrect. In his evidence in these proceedings Mr Goodwin claimed that the payment occurred at a meeting with Mr Suffell sometime after Mr Goodwin returned to work from leave on 12 December 2011. He recalled specific details of that meeting. Mr Goodwin was cross-examined at some length about this matter but remained unshaken on his claim that he had paid Mr Suffel for the clothing in cash in December 2011.
2. In late December 2011 a colleague of Mr Goodwin was killed whilst attempting to perform a helicopter retrieval of an injured person in the Blue Mountains. Mr Goodwin was the duty Special Operations Team (SOT) co-ordinator on that day organising responses. This tragedy caused Mr Goodwin a great deal of stress as did the subsequent investigations and coronial inquest.
3. After the meeting at which, according to Mr Goodwin, he paid Mr Suffel for the clothing, Mr Goodwin had no contact with anybody from Canterbury until 15 February 2013, some 15 months later, when he received by email from Ms Bolton the Canterbury invoices referred to at paragraph 20 above.
4. Mr Goodwin responded to Ms Bolton stating that the invoices were still outstanding as he was still awaiting socks and hats to go with the order. After he reviewed the invoices he realised that they were not consistent with his order. So much is not in dispute. No satisfactory explanation has been provided as to why, for example, invoice 739336 for $2,816.00 and invoice 767632 for -$1,766.60 were ever sent to Mr Goodwin in the first place as those invoices were not related to any amount of money which was ever said by anybody to be owed to Canterbury by Mr Goodwin. However, it is unsurprising that, when Mr Goodwin was sent these invoices, he understood that, at least as far as Canterbury were concerned, there was still some amount of money owing in relation to the transaction which had taken place in 2011.
5. Mr Goodwin claimed that he then called Ms Bolton to discuss the matter and advised her that he had made a cash payment for the items which he had ordered to Mr Suffel and that he was still waiting for delivery of socks and hats. As Ms Bolton was not called as a witness in the proceedings, there is no direct evidence before the Commission to contradict this claim by Mr Goodwin.
6. There were some further emails exchanged between Mr Goodwin on the one hand and Ms Bolton and Mr Suffel on the other hand in February and April 2013 about certain items which had not been delivered, but there does not appear to have been any further request from Canterbury for payment for the items for which Mr Goodwin had claimed that he had already paid for.
7. Mr Goodwin heard nothing further in relation to the matter for a further one and a half years when, on or about 28 November 2014, Mr Goodwin received the correspondence from Mr Dutton referred to at paragraph 32 above, which directed him to provide a written response to seven 'concerns' arising from Ms Campbell's complaints to Ms Clarke on 20 October 2014. The seventh of those 'concerns' was the allegation that Mr Goodwin had failed to pay Canterbury for the clothing he had ordered in 2011. Mr Goodwin's response is set out at paragraph 33 above. Under cross-examination Mr Goodwin confirmed that he had made some arrangements with Mr Suffel to withhold final payment to Canterbury until all the clothing had been delivered but rejected the proposition that he had not paid for any of the clothing as all of the clothing had not been delivered.
8. Mr Goodwin was then cross-examined about outcome of the preliminary assessment contained in Mr Dutton's letter to him dated 14 January 2015, the relevant part of which is set out at paragraph 35 above. It should be noted that, in this correspondence, Mr Dutton does not allege that Mr Goodwin had made no payment at all for the clothing in 2011 but, rather, directed him to 'finalise the account with Canterbury immediately'. He was cross-examined about the email exchange with Mr Suffel in February 2015 which is set out at paragraph 36 above. The following exchange occurred: Q. And you wanted to clear up payment for the gear you supplied, correct? A. Yeah I wanted to make sure that I didn't owe him any extra money because the invoices never added up, there was so much disparity with the invoices I wanted to clarify was there any extra money that I owed Mr Suffell. Q. Well at the time that you prepared that email no payment had been made to Mr Suffell, that's correct isn't it? A. That's incorrect. Q. And you asked about outstanding costs didn't you? A. Yes, correct. Q. And you knew that all costs were outstanding didn't you? A. That's incorrect. Q. And what you were trying to do was to imply that some costs had been paid? A. All the costs had been paid.
9. Throughout his cross-examination Mr Goodwin was adamant that he had made a cash payment to Mr Suffel in 2011 just as he had been in his interview with Mr Harvey on 16 October 2015. Mr Goodwin's recollection during the investigation in late 2015 was that the receipt of the clothing and the cash payment to Mr Suffel occurred on 2 September 2011. As already noted, Mr Goodwin's emails to Mr Suffel of 19 November and 7 December 2011, which call into question 2 September 2011 as being the date on which the cash payment was made, were not brought to Mr Goodwin's attention by Mr Harvey during the investigation. In his evidence in chief in these proceedings, Mr Goodwin conceded that his earlier recollection of 2 September 2011 as the date of the cash payment, was an error.
10. In relation to allegation 4(i), being that he had failed to act honestly and with integrity when, on 16 March 2015, he wrote to Mr Buddeke advising that 'all outstanding accounts have been settled', Mr Goodwin claimed that this was in relation to the disputed invoice for several thousand dollars. When Mr Suffell, on 12 February 2015 advised Mr Goodwin 'This debt has been wiped - nothing outstanding', Mr Goodwin took that to mean that the outstanding account had been settled. Mr Goodwin claims that, when he informed Mr Buddeke of this, he did so honestly.
11. With respect to allegation 4(ii), being that he had failed to act honestly and with integrity when, on 30 April 2015, he informed Mr Buddeke that 'I was not able to get a receipt from Canterbury for the individual clothing as I paid in bulk', Mr Goodwin's evidence was that he had a conversation with Mr Buddeke where he said 'I never got a receipt because I paid in cash'.
12. In giving his evidence in these proceedings, Mr Goodwin presented as an honest and credible witness. Despite being subjected to a thorough and testing cross-examination, he remained unshaken on his claim that he had paid Mr Suffell in cash for the clothing supplied in 2011. There was nothing in Mr Goodwin's demeanour which suggested that he was not telling the truth to the best of his recollection and ability.

THE LEGISLATION

1. The HS Regulation contains the following provisions: 13 Objects of Part The objects of this Part are: (a) to protect the health and safety of the public by providing mechanisms to maintain appropriate standards of conduct in the Ambulance Service, and (b) to ensure that the public interest is protected. ……………… 14 Definitions (1) In this Part: "disciplinary action", in relation to a member of staff, means any one or more of the following: …………….. (d) reduction of the employee's classification or position (but not in the case of a member of staff who is employed under a fixed term contract, the conditions of which are fixed by the Health Administration Corporation). ……………… "misconduct", in relation to a person who is a member of staff, includes, but is not limited to, any of the following: ……………… (f) any other improper or unethical conduct by the person. 17 Disciplinary action (1) The chief executive may decide to take disciplinary action or remedial action (or both) with respect to a member of staff if: ……………… (c) the member of staff has engaged in misconduct.
2. As can be seen from clause 13 of the HS Regulation, the disciplinary powers available to the chief executive in the case of a member of staff who has engaged in misconduct are protective, rather than punitive, in nature (see Director- General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; Secretary, Department of Justice v Schoeman [2014] NSWIRComm 40). It follows that the jurisdiction or function of the Commission in relation to an appeal under Ch 2 Pt 7 of the Act is also protective in nature. However, relevance of the protective rather than punitive nature of the jurisdiction will be of little significance in cases where the Commission cannot be satisfied to the requisite standard that the appellant actually committed the act or acts of misconduct which formed the basis for the disciplinary action imposed.
3. The relevant provisions of Ch 2 Pt 7 are set out below: 97 Notice of certain decisions etc (1) This section applies to the following decisions made by a public sector employer in relation to a public sector employee: ………………. (b) a decision to reduce the rank, classification, position, grade or pay of the employee, ……………… 100C Decisions with respect to appeals (2) The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. (3) Without limiting the generality of subsection (2), if in relation to a disciplinary appeal it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Commission: (a) is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits, or (b) may quash the decision and remit the matter back to the employer with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the employer. (4) The decision of the Commission in respect of an appeal is, except as provided by section 197B, final and is to be given effect to by the employer against whose decision the appeal was brought. 100D Orders by Commission with respect to payment of salary and continuity of employment (1) Without limiting section 100C, if the Commission decides to allow a disciplinary appeal, the Commission may: (a) if the employee has paid a fine imposed by the employer or his or her pay has been forfeited-order the employer to repay the amount of any such fine or forfeited pay, and (b) order the employer to pay the employee an amount stated in the order that does not exceed the remuneration the employee would, but for the decision of the employer, have received from the employer, and (c) order that any period of employment of the employee with the employer is taken not to have been broken by the decision of the employer. (2) Any such order by the Commission must be given effect to by the employer. (3) Nothing in subsection (1) enables the Commission to make an order for compensation in the case where a person is not reinstated or does not continue in employment. 100G Presentation of cases (1) A public sector employer must present the employer's case to the appellant at least 7 days before the hearing of a disciplinary appeal. (2) At the hearing of an appeal under this Part, the public sector employer's case is to be presented first. (3) Nothing in subsection (2) removes from an appellant or any other person the onus of proving any ground on which the appellant relies.
4. The hearing of an appeal under Ch 2 Pt 7 of the Act is a hearing de novo to be determined upon the evidence and submissions presented by the parties before the Commission (Schoeman at [184(9)]). However, it does not follow that the Commission must ignore completely the process by which the decision under appeal was made. Subsection 100C(3) makes it clear that a failure to comply with the rules of procedural fairness, whilst not necessarily determinative, may, nevertheless, be taken into account in the determination of an appeal. The procedural unfairness that affected the process which led to the decision to demote Mr Goodwin has already been touched upon and is further dealt with later in these reasons for decision.
5. It should also be noted that, whilst subsection 100G(3) makes it clear that the appellant bears the onus of proving any ground on which the appellant relies, once an appellant places before the Commission evidence which calls into question the factual basis upon which the respondent based the disciplinary decision, the evidentiary burden of proving those facts may shift to the respondent (see Bigg at 455; Brady (Inspector of Taxes) v Group Lotus Car Cos pls and another [1987] 3 All ER 1050 at 1059-1060).

DID MR GOODWIN COMMIT THE MISCONDUCT FO WHICH HE WAS DISCIPLINED?

1. The case mounted by Mr Goodwin is simple. Contrary to the findings contained in the investigation report, which were essentially adopted by the decision maker, Mr Homden, the case mounted by Mr Goodwin was that he did, in fact, pay Mr Suffel in cash for the clothing which he had ordered, apart from some caps and socks which were not delivered along with the bulk of the order being t-shirts, shorts and track suits. If the Commission finds in Mr Goodwin's favour on this disputed factual issue it follows that the sustained findings of misconduct against him in relation to allegations 2 and 4 cannot stand and this appeal must be upheld.
2. In the context of an allegation that he did not pay for the clothing, Mr Goodwin, at the outset, bears the evidentiary burden of proving that he did pay for the clothing. Ordinarily a bare statement to the effect that he did pay for the clothing might not be sufficient to shift the evidentiary burden on this issue onto the respondent. However, the factual context in which Mr Goodwin's claim that he paid for the clothing should also be taken into account. In this regard, the factual context includes the following: 1. Mr Goodwin's length of service (23 years), the seniority of his position and the undisputed evidence, including evidence from the decision maker, Mr Homden, of Mr Goodwin's good character, all of which points towards the inherent unlikelihood that he failed to pay for the clothing ( see McDougall, Ex 4, ann AM-1, para12; Williams, Ex 5, ann KW-1, para 14; McSweeney, Ex 6, ann KM-1, para 11; Mayer, Ex 8, ann AM-1, para 14; Homden, T 29/07/16, L15-29). 2. Canterbury made no attempt to chase up payment for the clothing between December 2011 and 15 February 2013. Even at that late stage there was no positive assertion from Canterbury that the clothing had not been paid for. All that occurred was that Ms Bolton forwarded to Mr Goodwin a number of invoices "that are still appearing as outstanding for payment". A number of these invoices were not related to the clothing which Mr Goodwin had received but for which Mr Goodwin had, allegedly, not paid. Canterbury did not pursue payment from Mr Goodwin again. 3. Despite Mr Goodwin's alleged non-payment for the clothing supplied to him in 2011, in March 2013 Canterbury were apparently willing to supply him with six pairs of socks and six caps at no charge. 4. When, in February 2015, Mr Goodwin contacted Mr Suffell to clear up payment for the clothing supplied, Mr Suffell responded "This debt has been wiped - nothing outstanding".
3. In the context of the factual circumstances set out above, Mr Goodwin's claim that he did pay Mr Suffell for the clothing is sufficient, in my opinion, to shift the evidentiary burden on this issue onto the respondent.
4. The question for the Commission to determine is whether or not the respondent has satisfied the evidentiary burden which it bears to prove, on the balance of probabilities, that Mr Goodwin did not pay Mr Suffell for the clothing and was, as a consequence of that fact, dishonest in his dealings with the respondent's Professional Standards Unit. Given the seriousness of the alleged misconduct and the gravity of the consequences for Mr Goodman, I approach the task of balancing the probabilities, cognisant of the following well known passage from the judgement of Dixon J in Briginshaw v Briginshaw ((1938) 60 CLR 336 at 361-362): The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
5. In final submissions, counsel for the respondent identified thirteen matters which the Commission should take into account in finding that Mr Goodwin did not pay Mr Suffell for the clothing as claimed. I set these matters out below and deal with each of them in turn: 1. The denial by Mr Suffell that Mr Goodwin had paid him for the clothing. As I have already stated, Mr Suffell presented as a credible witness. I discerned nothing from Mr Suffell's demeanour that would warrant the rejection of his evidence. When weighed against the equally credible evidence of Mr Goodwin the probability that Mr Goodwin paid for the clothing is evenly balanced against the probability that he did not. 1. The evidence of Mr Suffell that he never received cash and was not authorised to receive cash for clothing which he supplied on behalf of Canterbury. This evidence is consistent with Mr Suffell's denial that he was paid cash by Mr Goodwin, but cannot be considered as corroborative of that denial. It adds no further weight to Mr Suffell's denial. 1. Mr Suffell's concern over matters relating to cash handling and his desire to not risk his employment over that matter. This evidence falls into the same class as the matter dealt with at (2) above. In this context, Mr Goodwin gave equally compelling evidence that he would not jeopardise his career over such a matter. 1. Mr Suffell's evidence about a previous incident in which he was offered a cash payment but took steps to arrange for the client to go to a bank and deposit the money into Canterbury's account. Again, this evidence falls into the same class as the matter dealt with at (2) above. 1. Mr Suffell emailed Mr Goodwin Canterbury's banking details so that Mr Goodwin could transfer the payment into Canterbury's bank account. Mr Goodwin's evidence was to the effect that, when he received Mr Suffell's email of 22 November 2011 he could not see Canterbury's banking details on the face of the email and, as a consequence, did not send the payment by bank transfer. On the face of the version of this email, which is produced at tab 16 of the Schedule of Documents to the Investigation Report, Canterbury's banking details are not visible. This matter adds no weight in favour of a finding that Mr Goodwin did not pay for the clothing. 1. The lack of a receipt of payment. Mr Goodwin claimed that he paid Mr Suffell in cash at the Rozelle headquarters of ASNSW. Mr Goodwin did not claim that he asked for a receipt at that time. One available hypothesis, on Mr Goodwin's version of events, is that Mr Suffell took the cash payment from him but did not account to Canterbury for it, in which case it would have been highly unlikely that he would have had a receipt issued to Mr Goodwin. This matter is neutral in terms of the balance of probabilities. 1. Mr Goodwin did not know Mr Suffell well. I fail to see how this asserted fact weighs in the balance one way or the other on the issue of whether or not Mr Goodwin paid Mr Suffell for the clothing. 1. There is no record of payment within Canterbury. As with the proposition at (6) above, this matter is neutral in terms of the balance of probabilities. 1. Canterbury followed up the issue of payment in February and April 2013. No explanation was given as to why it took fourteen months for Canterbury to pursue Mr Goodwin for payment of the clothing it supplied to him, other than Mr Suffell's repeated references to Canterbury's "terrible" and "poor" ordering and invoicing system. As with the proposition at (6) above, this matter is neutral in terms of the balance of probabilities. 1. Canterbury wiped the debt. The question which immediately arises is why would Mr Suffell communicate this to Mr Goodwin if, as Mr Suffell claimed, Mr Goodwin had not paid for in excess of $600 worth of Canterbury clothing which had been supplied to him. That question did not elicit any satisfactory answer. This matter is also neutral in terms of the balance of probabilities. 1. The email from Mr Goodwin to Ms Bolton of 13 February 2013 (set out at paragraph 25 above). This email was sent immediately following the receipt by Mr Goodwin of an email from Ms Bolton which had attached the invoices referred to at paragraph 20 above. Mr Goodwin's explanation of his email as is set out at paragraphs 24-26 above. Counsel for the respondent submitted that Mr Goodwin's explanation does not withstand scrutiny because it ignores the history of the correspondence with Ms Bolton and the fact that Ms Bolton was Canterbury's credit manager who was logically concerned with payment, not delivery. What this submission ignores is that, on the evidence before the Commission, prior to 15 February 2013 there had been no "history" of correspondence between Mr Goodwin and Ms Bolton. The correspondence concerning Mr Goodwin's order had been between him and Mr Suffell and had occurred in 2011. After a gap of some fourteen months, during which there is no communication at all between Canterbury and Mr Goodwin, he receives by way of email from Ms Bolton a number of invoices for amounts ranging from $19.80 up to $2,816.00 and down to -$1,766.60. It is quite feasible that Mr Goodwin, doing the best he could fourteen months after the event, recalled that there were some items which he had ordered back in 2011 which had not been supplied, and advised Ms Bolton of this fact. There is no dispute that this advice was correct. Mr Goodwin could hardly have conceived in February 2013 that three years later his two line email would be subjected to such close forensic analysis by senior member of the NSW Bar. Had he foreseen such an eventuality he may well have qualified his communication to Ms Bolton with an acknowledgement that, whist he realised that her concern was payment not delivery, because she was the person who sent him the invoices he was just letting her know that not all the items which he had ordered in 2011 had been delivered. I find that there is nothing implausible about Mr Goodwin's explanation of his email to Ms Bolton of 15 February 2013. 1. The response from Mr Goodwin to Mr Dutton of 8 December 2014 which is set out at paragraph 33 above. In relation to this issue, counsel for the respondent made the following submission during final addresses: The applicant seeks to suggest that that statement to Mr Dutton only related to the delivery of some initial items in August 2011 and not to the delivery of most of the items that had occurred later in time by December 2011. Now, that attempt in my submission once again does not withstand scrutiny and it ignores the context of the statement on p 34. Now, the first matter to take into account is of course the ordinary meaning of the words that appear on p 34 and the effect of the statement by the applicant was, "I have arranged to withhold payment until delivery and I still have not received delivery." Now, that statement of course does not seek to address the split delivery of goods. It doesn't address the initial delivery of a few items and then the subsequent delivery of the balance of the order, but that effect of the statement of course is reinforced by the next statement or the next sentence in the statement where he says, "I had made several enquiries regarding the gear, but still have not received it." In other words, the applicant was reinforcing that he was entitled to withhold payment because delivery still had not occurred. Moreover, that effect is reinforced by reference to the attached email O which appears at p 36 of MFI 7 and relevantly at the top of that page the applicant said to Ms Bolton, "These invoices are still outstanding as we are still awaiting socks and hats to go with the order." I note that, in the passage in quotation marks at the end of the second paragraph of the above submission, which is said to be the effect of Mr Goodwin's written response to Mr Dutton, the word "final" has been omitted before the word "payment". This omission may be the result of a transcription error. Nevertheless, it is clear from the contents of Mr Goodwin's letter to Mr Dutton of 8 December 2014 that he was telling Mr Dutton that "final payment" had been withheld. In my opinion, this matter is also neutral in terms of the balance of probabilities. The sentence "I made arrangements with the sales rep to withhold final payment to Canterbury…" is consistent with Mr Goodwin's claim that he had made a cash payment to Mr Suffell in 2011. 1. The email from Mr Goodwin to Mr Suffell of 10 February 2015 which is set out at paragraph 36 above. Again, there is nothing in this email which is inconsistent with Mr Goodwin's claim that he had paid Mr Suffell in cash for the clothing supplied in 2011. Shortly before sending this email, Mr Goodwin had been directed by Mr Dutton "to finalise the account with Canterbury immediately". It is unsurprising that Mr Goodwin sent Mr Suffell an email in the terms that he did.
6. Counsel for the respondent then identified "one further matter that in my submission undermines the position of the applicant and that's a consideration relating to logic". That matter was Mr Goodwin's failure in 2012 to follow up the non-delivery of the caps and socks which he had ordered. Given the tragedy which occurred in December 2011, which is referred to at paragraphs 45-51 above, it is understandable that chasing up caps and socks was not a priority for Mr Goodwin at this time.
7. In addition, counsel for the respondent relies on the evidence of Ms Campbell as being consistent with Mr Suffell's claim that he was never paid for the clothing by Mr Goodwin and inconsistent with Mr Goodwin's claim that he did pay Mr Suffell in cash for the clothing in 2011. However, given the concerns which I have expressed about Ms Campbell's evidence, and adopting the approach in Briginshaw, which requires that I take into account the seriousness of the allegations against Mr Goodwin, and the gravity of the consequences for him of an adverse finding, I am not comfortably satisfied that Mr Goodwin did not pay Mr Suffell in cash for the clothing in 2011 as he claimed.

CONCLUSION

1. It follows that the respondent has not discharged the evidentiary burden which it bears to prove allegation 2. As a consequence allegation 4 cannot be sustained either. The appeal by Mr Goodwin is allowed and the decision to reduce his classification or position from Inspector, Rescue Coordinator, to Station Officer is set aside.
2. Mr Goodwin is entitled to be paid at the rate of pay for a Clinical/Paramedic Educator Year 2 under the Operational Ambulance Officers (State) Award from the time the decision, the subject of this appeal, took effect.
3. I make the following orders: 1. The appeal of Dane Goodwin in this matter is allowed. 2. The respondent is to restore Mr Goodwin to the position which he held immediately before the implementation of the decision which is the subject of this appeal. 3. The respondent is to restore Mr Goodwin's rate of pay to the level applicable to a Clinical/Paramedic Educator Year 2 under the Operational Ambulance Officers (State) Award. 4. The respondent is to pay Mr Goodwin the difference between the rate of pay he has received since the implementation of the decision which is the subject of this appeal and the rate of pay applicable to a Clinical/Paramedic Educator Year 2 from that time until orders (2) and (3) are put into effect. 5. Orders (2), (3) and (4) are to take effect on and from 16 December 2016.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 December 2016