I have formed a view about this matter. I am of course conscious that I am obliged to furnish any decision I hand down with adequate reasons so that the decision I give can be intelligible. I earlier made reference to obligations I have under s.56 of the Civil Procedure Act 2005, and in that context I have formed the view that the better course is to furnish the parties today with my decision and the reasons for it. They will necessarily be in short compass.
I appreciate that the more common course is to remove oneself, reserve and produce a lengthy written decision. But as I am confident in my own mind that I know what that decision is, and I can articulate in sum my reasons for it, I regard myself as obliged to give it now. If there is challenge to the decision by either party, there is no capacity to seek further reasons. The reasons I furnish now will be all the reasons I provide.
In this matter, which it must be remembered, is a public sector disciplinary appeal and not any other kind of proceeding, a decision was made against the appellant and a fine imposed, which is the appellable part or manifestation of the decision, on the basis that three counts of misconduct had been made out against her.
The first count of misconduct was that the appellant, at a particular time and a particular place, failed to assist Mr Geoffrey Ollis, who is in a wheelchair. That broad allegation is articulated in three particulars. One, that the appellant directed Mr Geoffrey Ollis to remove himself from his wheelchair and climb three stairs to the visits area. Two, that she directed him upon his departure into the visits area, to remove himself from his wheelchair and climb down three stairs and three, that she directed Mrs Suzanne Ollis, who is Mr Ollis' mother, to carry the wheelchair.
Even in the most generous reading of the word 'direct' as being oversight of a scheme of affairs, none of those three particulars can be made out in their terms on the evidence, and I find that none of those three particulars of the allegation is made out in its terms.
I turn to the next aspect of the matter. The second allegation is that the appellant interrupted the family visit to inmate Scott Ollis by saying some words to Mr Geoffrey Ollis and thirdly, as a separate allegation, interrupted that same visit by making an observation to Mr Geoffrey Ollis about someone else attending in a wheelchair.
I deal with those two allegations quite quickly. The second of them cannot stand. There is no evidence for it from Mr Geoff Ollis and none from his mother. There is express evidence given against it by the appellant who was tested on that evidence. The only evidence for it is Mr Scott Ollis' assertion in his letter of 13 September, which is in its terms unclear. On that basis I am not able to be satisfied that the factual matter which is the subject of the allegation occurred to the level required. Even at the ordinary civil level of probabilities, I am not satisfied that occurred, even without invoking the level of satisfaction I would need to be satisfied at the level canvassed in Briginshaw v Briginshaw (1938) 60 CLR 336.
The second allegation did occur in more or less the terms it is put. It is not misconduct. The appellant's behaviour was officious and perhaps discourteous but it is not misconduct. Even though I say it is officious and perhaps discourteous, and I say that mindful of the obligations of officers to behave with courtesy and respect towards members of the public and visitors and indeed inmates, that conversation, whether it is the words asserted in the allegation or the slightly different words put against the appellant, cannot amount to misconduct.
That would be so in the public arena generally. I am not prepared to form a view that a different code of conduct applies toward visitors to a corrective centre. In my view, the same degree of courtesy ought be shown to them as ought be shown in any public place by any public servant. I earlier made some observations about the custom and practice of prison officers speaking to inmates in certain ways in prisons, but I disregard that for the purpose of assessing this consideration because here we have someone speaking to members of the public, who are entitled to be treated the same way whether they are inside a correctional centre, a hospital or a public service office. Nevertheless, the conversation that occurred, on anyone's account, could not be misconduct.
I return to the factual circumstances surrounding the matters which formed the substance of the first set of allegations. The three particulars cannot stand. Nevertheless it is the factual case that Mr Geoffrey Ollis was required to get out of a wheelchair and scramble up a short flight of stairs, to come into a centre to visit his brother and then was required to descend from his wheelchair and scramble down, that is my word, but it seems to reflect what I saw on the footage, another two or three stairs, to enter the visits area to speak to his brother. That was something which it was much better that he did not have to do. There is no doubt about that. Mr Corcoran was right to apologise to Mr Geoffrey Ollis and his mother. But it was not the appellant's fault.
What is said now about the appellant, and I am now invited to find that the decision that was made was the appropriate decision in the circumstances based on this formulation of those facts, is that the appellant failed to inquire whether Mr Geoff Ollis needed assistance and secondly, that the appellant failed to give clear instructions to Mrs Ollis and SCO Irwin, that Mr Geoff Ollis was to proceed via a steel gate.
As I apprehend it, those are the bases on which the matter is now advanced. They are different bases to those which led to the punishment, but I accept, without going over it all, everything that has been said about the jurisprudence of the Commission. I am dealing here with an application de novo on fresh evidence. I am not confined to the matters which formed the subject matter of the allegations or their form and I am entitled to, and am bound to, have regard to supervening matters, or other matters, which were not in the decision maker's first view, that may have a bearing on this. I accept all of that and I am acting entirely in accordance with that jurisprudence and to be precise, I am following what was said in the decision of the Court in Secretary, Department of Justice v Schoeman [2014] NSWIRComm 40 and I am assisted also by, and I am seeking to follow, what was said in Franks v Roads & Traffic Authority [1996] NSWCA 193, as I must regard those decisions as binding upon me.
So when one looks at the matters which, as they are now framed - and I accept the department is entitled under the jurisprudence binding on me to put them to me in this way and I am obliged to deal with them - the situation is this. The appellant failed to inquire whether Mr Geoff Ollis needed assistance. I cannot see that she had an obligation to do so, nor can I see that so far as there was a failure to inquire whether he needed assistance, in the circumstances on the day, where he appeared in a place where no-one expected him to be, if there were any obligation to so inquire, it fell upon her alone.
But my essential apprehension of the matter is that I am not at all satisfied that there was any kind of policy, procedure, protocol, or practice, which required her to inquire whether he needed assistance, and nor am I satisfied that it was incumbent upon her, at large, leaving aside any policy requirement, to ask whether he needed assistance. It may have been courteous to do so, if one had thought of it, but it is not misconduct to fail to do so, even in circumstances where I accept she was in charge of a part of the area in which Mr Ollis found himself.
The second is that she failed to give clear instructions to Mrs Ollis and SCO Irwin that Geoff Ollis was to be processed through the steel gate. There is no evidence for that, except the fact that Mr Ollis came through another place, which was not the steel gate. No-one out of all the persons that were there gives evidence that the directions that the appellant gave were unclear or cloudy or misleading. All that can be said is something occurred which ought not have occurred. She was in charge. It must be inferred, it is said, that her instructions were not clear.
I am perfectly satisfied there was a miscommunication in the matter. I am perfectly satisfied that Mr Ollis ought not to have been allowed to come in by the front steps. I am not at all satisfied that the appellant was responsible for that, even to the extent of failing to give a clear instruction. I note the intervention of the man in black, who has not come to give evidence, but clearly had a large part in conveying communications between unspecified staff within the processing area, who may have been the appellant and may have been other staff, it is not clear, to Mr Ollis. In circumstances where there clearly was confusion, but other people intervened and it is not able to be said with any degree of certainty, let alone the degree of certainty I need to make a finding of misconduct upon it, that the appellant failed to give clear instructions to Mrs Ollis or SCO Irwin that Mr Geoffrey Ollis was to be processed by the steel gate, I am not able to make a finding of misconduct about that matter.
It was further said that the appellant had told untruths, here at least. There is no doubt that generally, and as the Commission as presently constituted particularly, the Commission has a very firm view about this matter. People who come before the Commission, seeking what is effectively discretionary relief and tell the Commission untruths, in the context of the application they make, disentitle themselves in my view to discretionary relief. It also, so far as a person who told untruths to their employer, would be open to be found to be misconduct of, in my view a serious kind, if the untruth was of anything more than the most trifling matter, to tell such an untruth. I am not satisfied that has happened here.
The appellant was, as I understand it now to be submitted, said to be telling an untruth about her dealings with Mr Irwin about two conversations.
As to the first, there are two accounts, Mr Irwin said it did not occur and the appellant said it did occur. I am obliged, if I am going to find something as serious as telling an untruth on one's oath to this tribunal occurred, to find a level of comfortable satisfaction that an untruth has been told. In circumstances where there is some evidence in support of the appellant's version of events, I am simply not able to make that finding about the first conversation and I do not.
As to the second conversation, the one said to have occurred in the vehicle yard, the appellant says it occurred; Mr Irwin says it did not. I make allowance in both cases for human memory failure. I do not make any findings against Mr Irwin or anyone else of lack of credit. But I am satisfied, from looking at the record of the investigators' interview, that there was footage that showed the appellant speaking to Mr Irwin. No-one knows what was said in it, and it is footage I have not been able to see, even though it existed for the investigator to see. I am not able to find that that second conversation did not occur. That is what I would have to find in order to find that the appellant had come here and told me an untruth. I do not make that finding.
In circumstances where I have not been able to identify any finding of misconduct, on all of the evidence, whether the initial allegation as put or as reframed here or on any other basis that I could conceive, to be made out against the appellant, it follows that I find that the decision to impose a fine was not the appropriate decision in the circumstances and it must be set aside and I will set it aside.
It follows that I decline to take the step sought of me by the respondent department, that is to effect a different decision of demotion of the appellant. There is no basis on which I would or could do that and I do not do that.
In my view, the decision, so far as it goes to a fine being imposed upon the appellant, which is the part of the decision which has been brought before me on appeal, must be set aside. I do not impose any other decision against the appellant in its place. I make an express finding that she has not committed a misconduct in these circumstances, as charged or at all, and I confine myself to the matters before the tribunal in these proceedings. I set aside the decision so far as it affects a fine upon her.
[2]
Orders
It follows that the Orders I make in this matter are:
Appeal upheld.
The punishment imposed on the appellant of a fine is set aside.
PETER NEWALL
Commissioner
[3]
Amendments
20 April 2017 - Corrected paragraph numbering.
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Decision last updated: 20 April 2017