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

Factual background

1. Ms Hanna commenced employment with CSNSW of 15 January 2018. She was employed under Part 4 of the Government Sector Employment Act 2013 (NSW) ("GSE Act") by the Government of New South Wales in the service of the Crown in the Department of Communities and Justice.
2. In accepting the employment Ms Hanna agreed in writing to abide by the Department of Justice Code of Ethics and Conduct ("Code of Conduct"). The Code of Conduct provided at cl 6.4, amongst other things, that employees must not attend work under the influence of illegal drugs. Clause 6.4.1 directed employees in Corrective Service Divisions to the "Corrective Services NSW Alcohol and Other Drugs Policy and Procedure" ("AOD Policy"). Clause 7.1 of the Code of Conduct provided that even when off duty employees must "act in accordance with the law and the content of this code".
3. The AOD Policy that applied at the time Ms Hanna commenced employment with CSNSW provided as follows: "2. POLICY Prohibited drugs, prohibited plants and drugs in excess of the drug/metabolite cut-off concentration levels as stipulated in the Australian/New Zealand Standard AS/NZS 4308:2008 are not permitted at any CSNSW workplace or in any CSNSW vehicle. … 7.5 Drug/metabolite cut-off concentration levels when on/presenting for duty: 7.6 Staff may not have prohibited drugs/prohibited plants or excessive drugs present in any of his/her biological material when on, or presenting for duty. 7.7 Staff must not match or exceed the drugs cut-off concentration levels as stipulated in the Australian/New Zealand Standard AS/NZS 4308:2008, or such other procedure as may be directed by the Commissioner." (Footnote omitted)
4. The AOD Policy allowed for drug and alcohol testing to be conducted in the workplace and set out associated procedures and guidelines. It informed employees of counselling and other support available to them. The AOD Policy also provided that an employee who tests positive twice in a three year period "will be subject to disciplinary action".
5. In March 2019 CSNSW issued a revised AOD Policy. It was relevantly in the same terms as its predecessor.
6. Under cross-examination Ms Hanna accepted that she was aware of the contents of the Code of Conduct and each iteration of the AOD Policy. She acknowledged that they applied to her employment.
7. Amongst the legislation and other reference material to which the AOD Policy referred was the Crimes (Administration of Sentences) Regulation 2014 (NSW) ("Regulation"). Clause 260 of the Regulation provides as follows: 260 Correctional staff must not have prohibited drug present in biological material A member of correctional staff must not have a prohibited drug present in any of his or her biological material - (a) when the staff member presents for duty, or (b) while the staff member is on duty.
8. It did not appear to be in dispute that the Regulation applied to Ms Hanna.
9. Mr Feenan described Ms Hanna's duties as follows: "8. Ms Hanna's role involved training CSNSW staff employed by CSNSW and, on behalf of CSNSW, to staff in privately operated correctional centres, in conducting risk/needs assessments and case management for inmates. Among Ms Hanna's duties were training staff in conducting level of service inventory revised (LSI-R) and the 'Planning for Adjustment, Responsivity, Reintegration Criminogenic Needs and Communication' (PARRCC) assessments. In addition to training other CSNSW staff, Ms Hanna was sometimes required to supervise staff conducting the LSIR and conduct PARRCC assessments of inmates herself. 9. The LSIR assessment comprises 54 items. Nine of the 54 items relate to drug and alcohol issues. The PARRCC assessment also includes a question of support required for the inmate's drug and alcohol issues." (Emphasis in original)
10. On 21 January 2019 Ms Hanna underwent a drug test in the workplace. She returned a positive reading for cannabis. The pathology report suggests that Ms Hanna informed the tester that she had smoked marijuana.
11. Ms Hanna was referred to Mr Nelson "for the purpose of conducting an ATOD assessment". [1] In his subsequent report Mr Nelson stated that Ms Hanna had declared using cannabis to the AOD Testing Officer; said she has smoked cannabis irregularly since her university days after high school; in the weeks prior to testing positive at work Ms Hanna said she was smoking cannabis every second weekend over the Christmas/New Year period and during her recreation days; and, that Ms Hanna said "I've done the wrong thing; I accept that it is illegal but I don't agree with it; but I will never touch it again because I don't want to ruin a 20 year career".
12. Ms Hanna was subjected to another drug test on 11 September 2019. It returned only negative results.
13. On 27 September 2019 CSNSW commenced an investigation into Ms Hanna's positive reading in January 2019. Why it took so long to commence the investigation is difficult to fathom. Be that as it may, in a letter dated 27 September 2019 Ms Hanna was provided with details of the allegation against her and provided with an opportunity to respond.
14. On 21 October 2019 Ms Hanna provided her response to the letter of 27 September 2019. She admitted to the allegation and apologised for her "inappropriate behaviour". She claimed not to have consumed cannabis since January 2019 and would "never do so again".
15. On 13 November 2019 Dr Anne Martin, the Assistant Commissioner, Offender Management and Programs with CSNSW wrote to Ms Hanna to advise her of the outcome of the investigation. Dr Martin stated that she had decided not to impose a misconduct outcome under s 69(4) of the GSE Act. Instead, pursuant to cl 40(3) of the Government Sector Employment (General) Rules 2014 (NSW) Ms Hanna's conduct would be monitored for a period of 24 months during which she was required to comply with the following conditions: "1. You must not have any prohibited drugs or a blood alcohol concentration of equal to or greater than 0.02% in your biological material when you present for duty or whilst you are on duty; and 2. You will be subject to target drug testing whilst on duty at random intervals."
16. On 9 December 2019 Ms Hanna again underwent drug testing in the workplace. She returned a positive result for cannabis.
17. On 11 December 2019 Dr Martin wrote to Ms Hanna. Her letter contained the following: "On December 2019, during the monitoring period, you provided an oral fluid sample which tested positive for the prohibited drug Cannabis (tetrahydrocannabinol/THC) whilst on duty at the Henry Deane Building, in breach of clause 260 of the Crimes (Administration of Sentences) Regulation 2014 (NSW), sections 2 and 7.6 of the CSNSW Employee Alcohol and Other Drugs Policy and Procedures and section 6.4 of the Department of Justice Code of Ethics and Conduct Policy. … Having considered this matter, including the report from Douglass Hanly Moir Pathology dated 9 December 2019 I have made a final decision to impose the following misconduct outcome on you: Termination of employment (with opportunity to resign) In accordance with clause 40(5) of the Rules, I take this action under section 69(4) of the Government Sector Employment Act 2013 (NSW) ('the Act') without giving you an opportunity to make submissions. … You are hereby required to tender your resignation to Acting Manager, Assessment and Case Management Annie Sheerin within 7 days from when you receive this letter. Should you fail to resign within that time, your employment will be terminated."
18. On 12 December 2019 Ms Hanna sent an email to Dr Martin attaching what she described as a "statement". That statement included an apology from Ms Hanna for her "lack of integrity and poor behaviour". It set out, in effect, submissions asking Dr Martin to reconsider the Decision.
19. In an email to Ms Hanna dated 16 December 2019, Dr Martin stated that her Decision remained unchanged.
20. On 19 December 2019 Ms Hanna filed with the Office of the Industrial Registrar a Notice of Appeal - Public Sector Discipline pursuant to s 98 of the Industrial Relations Act.
21. Ms Hanna submitted her resignation by email on 20 December 2019. In a letter to Ms Hanna dated the same day Dr Martin accepted that resignation.

Submissions

1. The Secretary relied on a Short Summary of Case filed on 12 February 2020 and an Outline of Submissions filed on 18 March 2020. While I have considered all of the submissions advanced on behalf of the Secretary, its position is effectively summarised in its Short Summary of Case as follows: "CSNSW's Position 14. While CSNSW commends efforts to rehabilitate, CSNSW's position is that any illegal drug use is entirely incompatible with employment with CSNSW. Not only is illegal drug use a breach of the criminal law and the instruments identified in paragraph 3 above, it is also inconsistent with what CSNSW aims to achieve with the population of inmates in CSNSW's care in the corrective services environment. While the quality of Ms Hanna's work with CSNSW has been praised, her drug use and her attitude to drug use (her reported attitude is that cannabis use should not be illegal) is inconsistent with what had been, until December 2019, her role within CSNSW and could give rise to the risk of unconscious bias should Ms Hanna resume work with CSNSW. Employees of CSNSW are required to comply with the law and to model appropriate behaviour for inmates in the care of CSNSW. Illegal drug use is necessarily incompatible with those expectations, and community expectations. 15. CSNSW did not terminate Ms Hanna's employment after she returned the first positive drug test in January 2019. Rather, CSNSW decided to afford Ms Hanna an opportunity to demonstrate that she could comply with the general law and the conditions of her employment by imposing a 24-month period of supervision with targeted drug testing and conditions consistent with what otherwise were the conditions of Ms Hanna's employment - that she remain drug-free whilst on duty and otherwise comply with the criminal law. CSNSW also referred Ms Hanna to counselling services, including those available to employees at no expense through, relevantly, Benestar. 16. Notwithstanding CSNSW's generosity in allowing Ms Hanna a second opportunity, Ms Hanna failed to comply with the conditions or her employment and breached the conditions of her supervision within weeks of the period of supervision commencing. 17. Given Ms Hanna's illegal drug use is long-term (commencing between high school and University), and is the product of a conscious decision to use in certain social situations, Ms Hanna's cannabis drug use is well-established and did not abate even following disciplinary intervention after she returned a positive test whilst on duty. In all the circumstances, the termination of Ms Hanna's employment with an opportunity to resign is the appropriate disciplinary outcome."
2. Ms Hanna's submissions were effectively summarised in her statement as follows: "42. I have never been under the influence while on duty, I have completed my work duties with professionalism and to a high standard. I was abstinent from cannabis from January 2019 2 December 2019, I have maintained abstinence since lapsing on one occasion in December 2019. 43. I deserve disciplinary action as I have breached departmental policy, however, I do not deserve the most severe option of disciplinary outcomes being loss of employment. The punishment must fit the crime. Being forced to resign for something I have done in my personal life is overly punitive, harsh and far too severe."

Regulatory context of Ms Hanna's employment

1. Ms Hanna was employed in the Public Service under the GSE Act. [2] She was engaged in continuing employment within the meaning of s 43. As such, her employment was liable to be terminated on any of the grounds contained in s 47(1), including a finding of misconduct being made against her under s 69. [3]
2. Section 69 of the GSE Act relevantly provides as follows: 69 Misconduct - Public Service and other prescribed government sector employees (1) In this section: … misconduct extends to the following: … The subject matter of any misconduct by an employee may relate to an incident or conduct that happened while the employee was not on duty or before his or her employment. … (3) The government sector employment rules may deal with the following: (a) misconduct by employees of government sector agencies, (b) the procedural requirements for dealing with allegations of misconduct by employees of government sector agencies (consistently with procedural fairness). (4) If, in accordance with those rules, there is a finding of misconduct by an employee of a government sector agency, the person who exercises employer functions in relation to the employee may take any of the following actions: (a) terminate the employment of the employee (without giving the employee an opportunity to resign), (b) terminate the employment of the employee (after giving the employee an opportunity to resign), (c) impose a fine on the employee (which may be deducted from the remuneration payable to the employee), (d) reduce the remuneration payable to the employee, (e) reduce the classification or grade of the employee, (f) assign the employee to a different role, (g) caution or reprimand the employee. …
3. Clause 40 of the Government Sector Employment (General) Rules provide as follows: 40 Findings by employer (1) The employer may, in dealing with an allegation of misconduct - (a) make a finding of misconduct by the relevant employee (in which case the employee is to be notified of the finding in writing), or (b) make a finding that misconduct by the relevant employee has not occurred (in which case the employer is to dismiss the allegation and advise the relevant employee in writing). … (3) If the employer makes a finding of misconduct in relation to an employee, the employer may, instead of taking action under section 69(4) of the Act, require the conduct of the employee to be monitored over a specified period notified to the employee. (4) If, during that specified period, the employer is satisfied that the employee has engaged in misconduct of the same or similar kind as the misconduct the subject of the previous finding, the employer may take any action under section 69(4) of the Act in respect of the employee. (5) In that case, the employee is not required to be given an opportunity to make submissions in relation to the action proposed to be taken by the employer.

Principles on appeal

1. The Commission's powers in a disciplinary appeal of this kind are contained in Ch 2 Pt 7 of the Industrial Relations Act. That Part provides, relevantly and in summary, as follows: 1. a "public sector employee" may appeal to the Commission against an "appealable decision" of his or her employer: s 98(1); 2. a "public sector employee" includes one employed in the Public Service: s 91(1); 3. an "appealable decision" is a decision of the kind listed in s 97(1) [4] , which includes a decision to direct or to require the employee to resign: s 97(1)(g); 4. the appeal must be lodged within 28 days after the employee is notified of the decision against which the appeal is to be made: s 100B(2); 5. the Commission may allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit: s 100C(2); and 6. the decision of the Commission in respect of an appeal is, except as provided by s 197B, final and is to be given effect to by the employer against whose decision the appeal was brought: s 100C(4).
2. In Marroun v State Transit Authority [2017] NSWCA 273 the Court of Appeal examined the Commission's jurisdiction under Ch 2 Pt 7 of the Industrial Relations Act. From that decision it is possible to derive the following principles: 1. An appeal under Ch 2 Pt 7 is a fresh hearing of the allegation of misconduct (or an administrative hearing de novo). (In Marroun it was common ground that the proceeding before the Commission was a fresh hearing: at [29]. The Court stated that a conclusion that an appeal under Ch 2 Pt 7 of the Industrial Relations Act is a fresh hearing was supported by the decision of the High Court in Calman v Commissioner of Police (1999) 73 ALJR 1609; [1999] HCA 60: at [30]; see also [32] and [34].) 2. An appeal by way of fresh hearing means that the appellate body "stands in the shoes of" the original decision-maker. Where there is a specific charge or complaint before the employer, which has resulted in particular disciplinary action, it will be necessary for the Commission to consider that charge or complaint and, if it be upheld, determine what disciplinary action should be imposed: at [35]. In other words, the Commission is to engage in a two-step process: first, to determine whether the employee has engaged in the misconduct alleged; and second, if the employee has engaged in that misconduct, to determine what disciplinary action is to be taken: at [45] - [47] and [62]. 3. Generally, it is assumed that the appellate body has the same powers as the original decision-maker, no more and no fewer: at [35]. The appeal is "a fresh exercise of administrative power"; it is not the exercise of a different power for the first time: at [48], relying on Calman. 4. If the allegations of misconduct on which the original decision-maker relied are not proven to the satisfaction of the Commission, the Commission is obliged to allow the appeal: at [62]. 5. Post-decision events or conduct may be relevant to the consideration of penalty, but not to the consideration of the essential precondition to the imposition of a penalty, namely whether the disciplinary charge has been proven: at [56], citing Maritime Services Board v Murray (1993) 52 IR 455. 6. If the Commission allows the appeal the Commission may consider post-decision events or conduct in determining whether some lesser form of disciplinary action was appropriate: at [62] and [63].

Consideration

1. At the outset I observe that Ms Hanna was a public sector employee for the purposes of Ch 2 Pt 7 of the Industrial Relations Act. She lodged her Notice of Appeal within 28 days of the Decision. It follows that there is no impediment to the Commission considering Ms Hanna's appeal.
2. Ms Hanna admitted to having engaged in the conduct alleged against her. She did not dispute that her conduct amounted to misconduct within the meaning of s 69 of the GSE Act. To the extent that it is necessary to do so, I make a finding to that effect.
3. Ms Hanna did not challenge the process culminating in the Decision, other than in one respect. She claimed that after the first positive test in January 2019 it was incumbent on CSNSW to provide her with counselling and rehabilitation support, which it had failed to do. I do not accept these submissions, for two reasons.
4. Firstly, I am not persuaded that an employer would necessarily have an obligation to provide counselling and rehabilitation support for an employee who tests positive for drugs in a workplace. That would depend on the circumstances of the case. With respect, this requires a more nuanced approach than the Secretary's submission to the effect that an employer should not have an obligation to ensure an employee complies with the law.
5. In any event, and in the circumstances of this case, I do not consider that CSNSW had an obligation to provide the support claimed by Ms Hanna.
6. Secondly, CSNSW did provide some support. Ms Hanna was referred to Mr Nelson who provided her with information regarding the National Cannabis Prevention and Information Centre, which she followed up. Ms Hanna told Mr Nelson that she had a counsellor on whom she would rely for support. Ms Hanna received further support in the subsequent, but admittedly limited, telephone conversations and email correspondence she had with Mr Nelson. There is nothing in this evidence to suggest that she lacked support, much less that she sought assistance from Mr Nelson or anyone else at CSNSW to obtain it.
7. It was apparent that Ms Hanna is a person who has the capacity and acumen to access the necessary assistance, were it required. It is not reasonable for her to argue that she needed do no more than wait for CSNSW to offer support, when all of the indications were that she had the support she needed.
8. For these reasons I find that there is no basis to impugn the Decision on the basis of the alleged failure of CSNSW to provide her with counselling and rehabilitation support.
9. This leads to the primary ground on which Ms Hanna challenged the Decision, namely its severity. To adopt her language, the question for determination is whether "the punishment fits the crime". She described this as being the "sole question" for determination by the Commission.
10. It is important to observe that the Secretary did not attempt to call into question Ms Hanna's work performance. Ms Douglas-Baker stressed in her opening and closing submissions that there were no suggestions that Ms Hanna was anything other than a valuable employee.
11. In this regard, Mr Feenan stated that "Ms Hanna's work is of a high standard" [5] and described her as being a "valued team member". [6] Ms Fragati and Mr Tree had each worked with Ms Hanna and deposed as to her professionalism and effectiveness in her role at CSNSW.
12. That said, I accept the Secretary's submissions that Ms Hanna breached the Code of Conduct, the AOD Policy and the Regulation, and in so doing breached the terms of her employment. Ms Hanna's conduct must be considered in light of the position she held. She was a Quality Assurance Officer working in a corrective services environment. She had a responsibility to train CSNSW staff and others, and to conduct assessments of inmates involving questions as to their drug and alcohol issues.
13. There is also force to the Secretary's submission that Ms Hanna's cannabis use was a conscious decision on her part. Ms Hanna claimed in her statement to Dr Martin of 12 December 2019, and in these proceedings, to suffer from a dependency for which she was and is seeking support. Mr Nelson deposed that the description of drug use Ms Hanna provided during their meeting on 30 January 2019 "did not suggest 'dependence'". [7]
14. Ms Hanna adduced no independent evidence regarding her alleged drug dependency. She also led no evidence regarding the counselling or other treatment she has sought or is receiving. Rather, Ms Hanna gave evidence that she had in fact declined to provide such information to the Secretary, which had been requested under the auspices of these proceedings. Only limited evidence of these matters was obtained from Ms Hanna under cross-examination.
15. Ms Hanna had been targeted for workplace drug testing in September 2019. She had been advised by Dr Martin in the letter of 13 November 2019 that she would be subjected to targeted drug testing in the 24 month monitoring period. She must have been cognisant of the likelihood, not mere possibility, that she would be subjected to further workplace drug testing. Further, she accepted under cross-examination that she was aware under the terms of the AOD Policy that she would face disciplinary action if she returned a second positive result in a three year period.
16. Ms Hanna must have known the risks she was running and deliberately, or at least recklessly, took the gamble. In this context, Ms Hanna's description of her behaviour in December 2019 as a "lapse" comes across as an attempt to underplay both the seriousness of her breach and the fact that it resulted from a deliberate decision on her part.
17. I recognise that neither Ms Fragati nor Mr Tree had ever observed Ms Hanna taking illicit drugs, or being under the influence of or in withdrawal from any drug. Each of Ms Tobia, Ms Helmrich and Ms Magoffin provided what might be described as testimonials. Each deposed as to their good opinion of Ms Hanna's character. They expressed their commitment to her rehabilitation and future abstinence from cannabis.
18. The Secretary expressed some scepticism regarding Ms Hanna's evidence as to the steps she was taking to rehabilitate and overcome her alleged dependence on cannabis. There is some reason to treat this evidence with caution. There is no independent verification of the steps Ms Hanna said she has taken, despite the Secretary seeking such information from her. Further, the language of apology and atonement in her statement to Dr Martin of 12 December 2019 (at [23] above) bears some similarity to her email of 21 October 2019 (at [19]).
19. However, the Secretary elected not to cross-examine any of Ms Hanna's witnesses. Accepting their evidence, I am inclined to the view that if Ms Hanna were returned to the workplace she would indeed continue to abstain from cannabis. But that is not the end of the matter.
20. As already stated, Ms Hanna engaged in misconduct. She had given Dr Martin her assurances that she would in future abstain from cannabis. In a very short period of time she had given the lie to that commitment. While Ms Hanna was unwilling to concede under cross-examination that she had been provided by CSNSW with a "second chance", preferring to refer to it as a "consequence", the reality is that a second chance is what it was. She is now seeking a third.
21. Contrary to Ms Hanna's submission, this is not simply a case of her being punished "for something [she has] done in [her] personal life". The Code of Conduct required her to comply with the law, even outside of work. Further, to my mind the seriousness of Ms Hanna's behaviour centres on her attending the workplace with the traces of tetrahydrocannabinol still present in her system, in contravention of the Code of Conduct, the AOD Policy and the Regulation. Had the case centred only on an allegation that Ms Hanna had consumed cannabis in her private time, or on her belief that cannabis should be decriminalised, a quite different approach may have been warranted.
22. In that regard, though, there is one aspect of the Secretary's case which I find concerning. Mr Feenan deposed to a concern that Ms Hanna's illegal drug use gives rise to "a potential risk of unconscious bias on Ms Hanna's part when conducting assessment with inmates or training CSNSW staff". [8]
23. The risk of unconscious bias was referred to in the extract from the Secretary's Short Summary of Case reproduced at [27] above. In support of this submission, and in addition to Ms Hanna's drug use, the Secretary made reference to her view that cannabis use should not be illegal.
24. Despite his alleged concerns, Mr Feenan was still able to speak highly of Ms Hanna's work performance. More tellingly, he deposed as follows: [9] "10. ...I agree that I did not raise with Ms Hanna a concern about unconscious bias. I am however aware of the underlying potential for unconscious operator bias from my training as a psychologist. I have not observed any inmate interviews conducted by Ms Hanna and as stated, the training provided was supervised by Ms Fragaki. I therefore cannot say whether or not in Ms Hanna's work in the area of assessments she undertook or in the training she provided she exhibited any indication of unconscious bias." (Emphasis added)
25. Ms Fragaki was able to offer a view. She gave uncontested evidence that she had worked closely with Ms Hanna and had never observed anything other than professionalism and objectivity in the way in which she discharged her duties. She stated that at no time did Ms Hanna display bias of any nature.
26. On the evidence it cannot be said Ms Hanna's performance was in any way in fact affected by any bias, whether unconscious or otherwise.
27. In the absence of such evidence, "concerns" premised on an employee's out-of-work conduct, and more particularly their socio-political views, that there is a "potential risk" that a person might demonstrate unconscious bias would need to be approached with caution. There is a clear potential for mischief if "unconscious bias", without corroboration, became the vehicle by which matters otherwise unconnected to a person's employment could be used to their disadvantage in that employment or more significantly, to terminate their employment. I emphasise that I am not suggesting that in this case CSNSW has acted inappropriately; I am simply flagging my concerns at the implications of the Secretary's submissions.
28. For these reasons I give little weight to the Secretary's evidence and submissions relating to the alleged risk of unconscious bias.
29. That being said, I am satisfied on all of the evidence that the Decision was appropriate and it is confirmed.

Endnotes

1. Exhibit R4 at par 4
2. GSE Act s 21
3. GSE Act s 47(1)(h)
4. Industrial Relations Act s 91(1)
5. Exhibit R6 at par 4
6. Exhibit R7 at par 9
7. Exhibit R5 at par 4
8. Exhibit R6 at par 10
9. Exhibit R7 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: 07 April 2020