Health Services Union (on behalf of Christopher McQueeney) and Ambulance... [2007] NSWIRComm 1027 | Case summary | Zoe

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Health Services Union (on behalf of Christopher McQueeney) and Ambulance Service of New South Wales. [2007] NSWIRComm 1027

[2007] NSWIRComm 1027

Industrial Relations Commission (NSW)|2007-07-01

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CITATION: Health Services Union (on behalf of Christopher McQueeney) and Ambulance Service of New South Wales. [2007] NSWIRComm 1027

APPLICANT PARTIES: Christopher McQueeney RESPONDENT Ambulance Service of New South Wales

Unfair dismissal application in respect to 7 charges of misconduct and additional matters highlighted during proceedings. 5 charges related to absenteeism from Wollongong Ambulance Station to attend secondary employment as a registered nurse with the Illawarra Area Health Service. Previous formal reprimand also taken into account. Shift of onus of proof relied upon by applicant and caselaw precedents as to measure of proof traversed by Counsel. Applicant's credibility exposed on several counts. CATCHWORDS: Applicant found to have been absent as charged. Applicant's failure to co-operate in investigation process was detrimental to his credit and his standing as trustworthy employee. Found also that applicant breached regulation requiring report of Criminal charges but also more serious supplementary allegation of concocting a false copy of an e-mail he claimed to have sent advising of charge, taking into account expert evidence and credibility issues. In addition, further expert evidence showed applicant to have taken possession of Morphine Register whilst claiming employer refused to have regard to same for proof of presence at Ambulance Station at times he was alleged to be absent at secondary employment. Range of adverse evidentiary findings showed applicant as unreliable witness and to have been disingenuous when given opportunity to answer allegations. Application dismissed.

Penhall/Jones Vs State of NSW [2007] FCA 925 Rejfek Vs McElroy (1964-1965) 112 CLR 516 @ 521 Neat Holdings Pty Ltd Vs Karajan Holdings Pty Ltd (1992) 110 ALR @ 449 Briginshaw Vs Briginshaw (1938) 60 CLR 336 Concut Australia Pty Ltd Vs Worrell 176 ALR 693 Blyth Chemicals Vs Busnell (1933) 49 CLR @ 66 Donlan & Hanson Vs Commissioner of Police No. CA 40587 of 1994 and No. CA40588 of 1994 (8/8/95 unreported) Hardcastle Vs Commissioner of Police (1984) 53 ALR 593 @ 597 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugargoods Workers Union Vs Gartrell White (No. 2) (1990) 35 IR @ 83/84 Burton Vs George Weston Foods Limited (T/as Tip Top Bakeries Fairfield) Unreported, IRC 1679/1993 Darling Island Stevedoring Lighterage Co. Ltd. Vs Jacobsen (1945) 70 CLR 635 @ 643 Coles Myer Ltd. Vs Shop Distributive and Allied Employees Association (1989) 27 IR 299 @ 303 NSW Nurses Association (on behalf of Colin Prior) Vs South Eastern Sydney and Illawarra Area Health Service (2007) NSW IR Comm 164 Jones and Dunkel (1959) 101 CLR 298 CASES CITED: NSW Nurses Association Vs Booroongen Djugun Aboriginal Corp. (2007) NSW IR Comm 89 Staal & Ors Vs Western Sydney Area Health Service (2004) NSW IR Comm 27 Outboard World Pty Ltd (T/as Budget Waste Control Sydney) Vs. Muir (1993) 51 IR 167 @ 183 Miller Vs NSW Attorney Generals Dept. [2006] NSW IR Comm 322 Lorenzoto Vs Sydney Water Corporation [2002] NSW IR 277 Re Railway Appeal Board; Ex parte Western Australian Government Railways Commission [1999] WASCA 63 Malone Vs Marr anor. NSWLR [1991] 894 NSW Fire Brigade Employees Union Vs NSW Fire Brigades [2005] NSW IR Comm 440 Howland Vs Cement Australia [2006] NSW IR Comm 1107 Peter Crawford Vs Council of the City of Sydney IRC 03/12 Jupiter General Insurance Company Ltd Vs Andeshir Bomanji Shroff [1937] 3 All E.R. 67 @ 74 Elcom Vs Electrical Trades Union of Aust. NSW Branch [5 IR 267 @ 270] Industrial Relations Bureau Vs Knox Auto Parts and Accessories Pty Ltd [1 IR 314 @ 315] Pride Vs Coles Myer Ltd (r/as K Mart Auto) [ 33 IR 269 @ 471] O'Connor Vs Palmer & ors. (No. 1) (1959) 1 FLR 397 @ 401

1 Mr Christopher McQueeney was a Station Officer of the Ambulance Service of New South Wales stationed at Wollongong, who joined the Ambulance Service on the 25th July, 1988 and worked in various promotional positions until his dismissal in September, 2006. 2 The applicant was the subject of formal inquiries including a disciplinary inquiry related to seven (7) charges of misconduct and was suspended on base rate of pay on 5th May, 2005 and dismissed on 6th September, 2006. 3 The letter of dismissal, containing the details of those charges and the grounds, read as follows: "Dear Mr McQueeney I refer to my letter to you of 11 August 2006 in which I advised I had suspended the implementation of a decision previously made, pending your attendance at an interview with me on 31 August 2006. In that regard, I refer to my letter of 22 March 2006 in which I advised I would be proceeding with the disciplinary inquiry in relation to you pursuant to the Ambulance Services (Staff) Regulation 2000 (the regulation) and to this end amended and laid new charges against you. The particulars of the charges were as follows, that you:- 1. misconducted yourself in the course of your employment by the Ambulance Service, within the meaning of clause 15 (e) of the Regulation, on Saturday 13 November 2004 in that you were not, as you claimed, present in the role of Station Officer at Wollongong Station between 1430 and 1700 on that day. (see Part Nine of the report). 2. misconducted yourself in the course of your employment by the Ambulance Service, within the meaning of clause 15 (e) of the Regulation, on Sunday 21 November 2004 in that you were not, as you claimed, present in the role of Station Officer at Wollongong Station at 0700 on that day. (see Part Eleven of the report). 3. misconducted yourself in the course of your employment by the Ambulance Service, within the meaning of clause 15 (e) of the Regulation, on Wednesday 24 November 2004 in that you were not, as you claimed, present in the role of Station Officer at Wollongong Station at 0700 on that day. (see Part Eleven of the report). 4. misconducted yourself in the course of your employment by the Ambulance Service, within the meaning of clause 15 (e) of the Regulation, on Sunday 28 November 2004 in that you were not, as you claimed, present in the role of Station Officer at Wollongong Station at 0700 on that day. (see Part Eleven of the report). 5. misconducted yourself in the course of your employment by the Ambulance Service, within the meaning of clause 15 (e) of the Regulation, in your management of your conflicting obligations to the Ambulance Service and to the IAHS, in that on the morning of 3 December 2004 you abandoned your post as Wollongong Station Officer at about 0635 hours in circumstances where you had no reason to believe that the post would be covered between 0635 and 0700, and you did have reason to believe that the post would not be covered between 0700 and 0730 hours, and that you abandoned that post in order to be on time for your secondary employment with the IAHS. (see Part Thirteen of the report) 6. misconducted yourself in the course of your employment by the Ambulance Service, within the meaning of clause 15 (e) of the Regulation, in that in the period 20 to 26 November 2004 you undertook to work 5 shifts for the IAHS, and in the period 27 November to 3 December 2004 you undertook to work 3 shifts for the IAHS, while knowing that those IAHS shifts exceeded the permission to engage in secondary employment given by the Ambulance Service. (see Part Fifteen of the report) 7. You committed a breach of discipline in that you failed to immediately report the fact in writing that you had been charged with the offence of Larceny under section 117 of the Crimes Act 1900 in accordance with the requirements of clause 13(1) (a) of the Ambulance Services Regulation 2000 which states:- An employee who is charged with having committed, or is convicted of, a serious offence must immediately report that fact in writing to the Ambulance Service. After carefully considering the Committee of Inquiry Reports, the provisions of clause 14 of the Ambulance Services Regulations 2005, your previous conduct, in particular the reprimand under the Ambulance Services Regulation 2000 in relation to your conduct regarding a police investigation of a motor vehicle accident, the response by you received from me on 9 May 2006 to the charges, the information provided during your interview with Mr Robert Gray on 1 February 2006, together with the submissions made by you on 31 August, 2006 in an interview with me at State Headquarters, I have determined the charges against you have been established to the satisfaction of the Service pursuant to clause 15 of the Ambulance Services Regulation 2005. I have further determined that you should be dismissed from the Service in relation to these breaches of discipline. That dismissal is effective from the date of this letter. You should make arrangements for the return of uniforms, identification badges or cards and all other assets belonging to the Ambulance Service with the A/General Manager, Operations Sydney on 9320 7608.

The particulars of the second charge are: That on or about 29 October 2002, you used your position as an Ambulance Officer to attempt to frustrate and influence the course of a police investigation about a motor traffic incident on 13 May 2002 in that you did say to Constable DELANEY in relation to Police requests that you provide a statement to them in regards to a motor traffic accident on 13 May 2002, that you were an "inspector" with the NSW Ambulance Service and you did not think you should be subject to Police "harassment". With respect to this charge, I find that it is established to the satisfaction of the Service pursuant to clause 24 of the Regulation. The particulars of the third charge are: That on or about 6 January 2003, you did misleadingly report to Superintendent Hennessy and Mr G Willis of the Ambulance Service of NSW that NSW Police Officer ROBERTS had been reprimanded in relation to her contact with you. With respect to this charge, I find that is not established to the satisfaction of the Service pursuant to clause 24 of the Regulation. The particulars of the fourth charge are: That on or about 31 October 2002, you did attempt to intimidate and harass Constable ROBERTS of the NSW Police by threatening to have another NSW Police Officer, namely Officer DEDDEN, whom you knew in a professional capacity through your employment with the NSW Ambulance Service, to "fix her". With respect to this charge, I find that it is established to the satisfaction of the Service pursuant to clause 24 of the Regulation. In deciding what, if any, punishment should be imposed upon you pursuant to Clause 24 of the Regulation in relation to the above two breaches of discipline, I have had regard to those matters disclosed in the Committee of Inquiry report, the submissions you made relating to the charges at the interview on 8 January 2004 and the further inquiries made by the Service following that interview. I have decided to issue a Reprimand pursuant to Clause 24(b) of the Regulation. I consider that your performance should be monitored over the next 12 months and that performance appraisal reports should be provided by your Operations manager to the Professional Standards and Conduct Unit on a quarterly basis for review. The reports will be held on the confidential disciplinary file kept by the Professional Standards and Conduct Unit. I believe that your actions have bought the Service into significant disrepute. You are warned that conduct of this nature is viewed extremely seriously by the Service and that any future occurrences could lead to your dismissal from the Service. You may direct any queries you have on this matter to Louise Ashelford, Acting Manager, the Professional Standards and Conduct Unit, on (02) 932 7785. A copy of this correspondence will be placed on your personnel file for a period of 12 months from today's date. Yours sincerely Steve Whinfield General Manager, Operations 9 Also by way of background understanding of other significant issues dealt with throughout this decision, the matters contained in the following few paragraphs became particularly relevant. 10 During the course of proceedings, the respondent wrote to the union on 7th May, 2007 advising that, in addition to the seven allegations of misconduct set out in the letter, set out at the beginning of this decision, and found at Annexure "Y" of Exhibit 2 (and formal reprimand set out above) it would submit that the dismissal of the applicant was not harsh, unreasonable or unjust, having regard to the fact: {Extract of letter}: "(1) subsequent to Mr McQueeney's dismissal, it has become clear that, at some time during the period between 1 February 2006 to 28 February 2007, Mr McQueeney engaged in conduct justifying his dismissal in that he improperly retained possession of, or control over, the Wollongong Ambulance Station Morphine Register that was in use during the period November/December 2004; and (2) subsequent to Mr McQueeney's dismissal, it has become clear that, in or about the period between 31 January 2006 and 5 September 2006, Mr McQueeney engaged in conduct justifying his dismissal in that he falsely claimed that he had, on 5 May 2004, attempted to send an e-mail to Superintendent Louise Hennessy at the e-mail address "LHennessy@asnsw.health.gov.au" to advise her, inter alia, that he had been charged with the offence of shoplifting, in circumstances where he knew that he had not attempted to send any such e-mail."

Colin Randall - Station Officer between Kiama and Wollongong Outline of Applicant's Case 14 In respect of Charges 1 - 4, the applicant in his witness statement marked Exhibit 5 in these proceedings, made the claim among other things, that a Morphine Register, kept by the Service at Wollongong Ambulance Station, as required under the Poisons and Therapeutic Goods Act of 1996, would demonstrate by the time entries therein, that he was present at the hand-over times shown at the commencement and ending of shifts. 15 He further claimed in that respect, that the Service had at all times refused or had been unwilling to consult the Morphine Register to ascertain that he was present at the contested times, despite frequent requests from him. He further claimed that the Service had refused or was unwilling to provide copies of the relevant pages of the register when he made a claim under the Freedom of Information Legislation. He claimed that the register signed by two officers was a reliable indicator of the time and date that an officer was at the Station. He was able to provide copies of the relevant pages of the Morphine Register which he claimed were sent to him. He further contended that the Service at no time challenged the authenticity and accuracy of that extract (attachment 3 to Exhibit 5). 16 That matter of how the applicant came to be able to have copies of the Morphine Register became a major test as to the applicant's integrity. 17 As to Charge No. 5, the applicant gave a specific denial of the employer's finding that he had abandoned his post, and additionally, in circumstances where he had reason to believe that the post would also not be covered between seven and seven-thirty. In that denial he claimed that, as the Service had accepted that he would be finishing at six-thirty, there was no justification for taking any form of disciplinary action for not being present for a period over which he maintained he was not actually rostered on duty. 18 The applicant claimed to have made comprehensive representations at interviews in February to Mr Gray, Acting CEO and August, 2006, to Mr Rochford, CEO, during the investigation of his charges and had made written submissions and provided by him at the time (attachment 5 to Exhibit 5). 19 Notwithstanding those representations, he was terminated on 11th August, 2006, without being allowed to have an interview with the CEO, and whilst he was eventually granted such an interview, which took place on the 31st August, 2006, the decision already arrived at was not reversed by the CEO, and he was subsequently dismissed on 6th September, 2006. 20 Prior to his dismissal, he was also prohibited from performing additional hours with his secondary employer, the Illawarra Area Health Service, while he was suspended (attachment 6 to Exhibit 5), which he pointed out resulted in the further loss of income on top of the loss of penalty rates, by virtue of being suspended for over a year on base salary. 21 The applicant claimed in his witness statement, reinforced under oath, that none of the issues with which he was charged, even if proved correct, would warrant termination of his long term employment. 22 In respect of the formal reprimand (Annexure M to Exhibit 2), set out at the beginning of this decision, the applicant claimed that this issue was unsatisfactorily managed by the Service, and he asked the Commission to take into account his report to the Public Service Association Officer, Mr Lipman, at the time (Annexures 9 and 10 of Exhibit 5 refer). That matter involved an allegation that Mr McQueeney conducted himself in an improper manner in the course of his employment by using his position as an Ambulance Officer to attempt to frustrate and influence the course of the police investigation about a motor traffic accident on the 13th May, 2002. A Committee of Inquiry had been established and a fact finding report compiled by Superintendent G Willis, provided to the applicant on the 12th May, 2003, and a thirteen page report on each of the charges, was signed by Mr Cyril Brown, on behalf of the Committee of Inquiry. 23 The background to that incident was that, rising from a vehicle accident which occurred in Pitt Street, Sydney on the 13th May, 2002, members of the New South Wales Police sought to obtain a witness statement from Mr McQueeney, who it was thought may have been a driver who left the scene of the accident. 24 Whilst the circumstances of the actual accident were not the subject of the inquiry, the allegations were - that Mr McQueeney used his status within the Service to attempt to frustrate and influence the course of the police investigation of that motor traffic accident. Amongst other things, it was alleged that the police local area command was unsuccessful in securing a statement from Mr McQueeney initially, and passed the task to other officers at Camden and Wollongong Area Commands. As the investigation of the traffic accident became statute barred (after six months) on the 13th November, 2002, numerous attempts were made by police officers to obtain a statement from Mr McQueeney prior to that date. The alleged delaying tactics of Mr McQueeney resulted in the matter being referred by the New South Wales Police Service to the Ambulance Services' Southern Division (Illawarra Sector), which in turn referred the matter to the State Headquarters in Sydney. The fact finding report arising from the investigation by Superintendent Willis was provided as Exhibit 4. 25 This matter of the respondent taking into account the earlier reprimand will be dealt with in greater detail later in view of the Commission's interim ruling that the matter should be traversed as a matter properly relied upon for the applicant's dismissal. That ruling was made notwithstanding that the letter of reprimand sent to the applicant as a result of the findings of the Willis enquiry, indicated that the reprimand letter would be removed from his file after twelve months, although at the same time, warning him that it would remain on the PSCU (Professional Standards Conduct Unit) file and would be relevant if there were any further breaches of conduct, and which might result in his dismissal. 26 Apart from the matter of his absences on certain dates mentioned in the first five charges, and the more trivial Charge No. 6, that he had exceeded the number of shifts allowed to be worked in his secondary employment approval at the IAHS Shellharbour Hospital, the Service also relied, in Charge No. 7, upon its findings that Mr McQueeney had not advised the Service of a criminal charge against him for shoplifting, as required. 27 The real issue in relation to Charge No. 7 became whether the copy of the e-mail alleged by him to have been sent to advise of the charge to Superintendent Hennessy, finally provided by him as Annexure 2 (6/6) to Exhibit 5, and an earlier extract version, handed over by him (to the CEO at the 31st August, 2006 interview just prior to dismissal, were in fact a creation by Mr McQueeney to deal with Charge No. 7. 28 The supposed creation of a false e-mail, together with another allegation of deceitful conduct, where the applicant was said to have taken possession of the Wollongong Ambulance Station Morphine Register, occupied a significant part of proceedings, involving expert evidence on both those major issues as to the applicant's credibility, especially relevant to his defences raised in these proceedings.

The Law with respect to Summary Dismissal 29 Ms Hancock on behalf of the applicant provided a useful caselaw background as to the question of the onus of proof in the case of Mr McQueeney who was dismissed for misconduct and who, she said, was also dismissed summarily. 30 Ms Anderson, for her part, accepted that challenge of the shift of onus on the basis that the Commission would be comfortable on the civil standard of proof that the allegations against the applicant would be made out to its reasonable satisfaction. Both relied on legal precedent to make their points on this crucial aspect. 31 Ms Hancock began her outline of the relevant caselaw in the area by reference to the decision of Hungerford J in the Pastrycooks Decision, highlighting for the Commission, the following extract: "It is undoubted, in my view, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union… however, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as a justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer." Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White [No. 3] - Hungerford J (1990) 35 IR at 83-84. 32 Ms Hancock drew the Commission's attention also to the fact that on the question of standard of proof in these proceedings the Briginshaw standard is the one to be applied, and went further to suggest that while the standard of proof is the civil standard of proof, there is a sliding scale within that civil standard to be applied. In that vein, she suggested that the more serious the allegation, the more substantial and convincing the evidence needs to be. 33 She referred to other more recent caselaw, which itself relied upon the pivotal extract from Briginshaw and Briginshaw (1938) 60 CLR 336 setting out the observations by Dixon J (as he then was) at pages 361-363: "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. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. That does not mean that some standard of persuasion is fixed intermediately between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues…But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. (emphasis added)." 34 She made reference to other cases of which the Commission has taken account, but which are not all recorded here for the purpose of brevity. 35 For her part, Ms Anderson, stressed to the Commission that where the caselaw referred to by Ms Hancock suggested that in cases of summary dismissal the respondent is required to make out its case in a convincing way, that concept should not be understood as directed at the standard of proof, but rather that a court should not lightly make out a finding on the balance of probabilities in cases of serious and wilful misconduct, where a party to civil litigation has been found guilty of such conduct. In this regard she referred to Neat Holdings Pty Ltd Vs Karajan Holdings Pty Ltd (1992) 110 ALR 449 @ 450. 36 The difference between the criminal standard of proof and the civil standard is not a mere matter of words, no matter how grave the fact which is to be found in a civil case, the mind is only to be reasonably satisfied; Rejfek Vs. McElroy (1964-1965) 112 CLR 516 @ 521. 37 A relevant summary, with respect to the proper application of the civil standard of proof, Ms Anderson said was set out in the decision given on the 28th June, 2007 by Justice Buchanan of the Federal Court in Penhall/Jones Vs State of NSW [2007] FCA 925. 38 Without including the full extract of his Honour's decision here, the Commission has noted the references in that case to the High Court Decision mentioned earlier in Rejfek Vs McElroy and Neat Holdings Pty Ltd Vs Karajan Holdings Pty Ltd, along with the reliance on extracts from Briginshaw and Briginshaw quoted for the Commission's benefit. 39 Ms Anderson also referred to the decision of the High Court of Australia in Concut Australia Pty Ltd Vs Worrell 176 ALR 693, which in turn referred to the decision of the High Court in Blyth Chemicals Vs Busnell (1933) 49 CLR @ 66, noted as being relevant to the issue of conduct incompatible with due or faithful discharge of obligations to an employer. 40 One of those extracts of the Judgement in Blyth Chemicals, highlighted by Ms Anderson as a test satisfied in the respondent's case, was that contained within the Judgement of Dixon and McTiernan JJ who said: "But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises.

Charge 1 : Not being present in the role of Station Officer at Wollongong Ambulance Station between 430 hours and 1700 hours on the 13th November, 2004. 41 Ms Hancock pointed to the likelihood that the applicant was on duty at the Wollongong Ambulance Station, whilst being technically in defiance of the IAHS roster, when occasionally not being at the place of his secondary employment at the Shellharbour Hospital at the times which conflicted with the start or finish of his Ambulance Station duties, but under special circumstances of informal arrangements with other hospital staff. 42 In answer to Charge No. 1, she firstly dealt with the Eloura East hospital wing roster of the Illawarra Area Health Service for 13th November, 2004, which officially showed him as being rostered from 1430 hours to 2300 hours (Ex:3 Tab 66). The applicant gave evidence that he was in fact present in the role of Station Officer at the beginning of that hospital shift between 1430 hours and 1700 hours (i.e. 2.30pm to 5pm) and that someone had covered for him at the Eloura East hospital wing until the hospital finish time of 5pm at Wollongong Ambulance Station. 43 The evidence of Ms Banister, Ms Hancock said, was that she was aware that nurses can enter into informal arrangements to cover each others shifts. This was generally only for half an hour, but she did not give a definite no to the possibility of a nurse covering from 1430 hours to 1700 hours as in Mr McQueeney's case. The fact that she could not recall seeing him at the Eloura East wing of the Hospital between those hours, was of significance to the applicant's contentions (that he had left for the Ambulance shift). 44 Likewise, the evidence of Carol Martin as Nursing Unit Manager at Eloura East - was that the casual pool attendance record might not reflect reality when nurses stayed back or came early for each other by informal arrangements. Ms Hancock summed up her evidence, acknowledging that such arrangements tended to be between regular staff and not casuals, such as Mr McQueeney and that she was reasonably confident she is told about such arrangements if she is not there at the time. Ms Martin also agreed that casuals might arrive fifteen minutes after recorded start time and make up that time by not having a meal break, and there could be occasions where casuals have left up to thirty minutes before recorded finish time by agreement with the nurse in charge to compensate for not having a meal break. Ms Hancock summarised her testimony as also saying that she was reasonably confident that Mr McQueeney would have actually been present at the times recorded on the hospital disposition sheets and generally speaking, staff must be there at proper times for start and finish to allow for handover, otherwise the ward would not operate properly. 45 Next Ms Hancock pointed to the testimony of Nurse Manager Anne Smythe, who gave evidence in respect of Wollongong Hospital nurses casual pool, when Mr McQueeney was employed at Shellharbour Hospital. In cross-examination she agreed that local arrangements can be entered into where casual nurses worked through their meal break and leave early, even though this is not supposed to happen for casuals. 46 She had a conversation with Mr McQueeney about meal breaks, but could not recall all the conversation. When the applicant worked at Orana House he made an entry on his time sheet to the effect that he was not having a meal break. She also gave evidence that Nursing Unit Managers at Eloura East and Eloura West can approach a casual nurse directly and ask them to put their name on the roster rather than go through a casual pool. 47 In her interview with Mr Clark (Barrister at Law), who conducted the inquiry resulting in charges 1 - 6 (Ex.3 Tab 21) Ms Bannister acknowledged that nurses may enter into arrangements with a nurse in charge to make up time between fifteen to twenty minutes when late. 48 In Mr McQueeney's interview with Mr Clark, he said that he "was covered down there" with respect to the shift at Eloura East from 1430 to 1715pm, meaning until his arrival from the Ambulance Station at 5.15pm. 49 In her interview with Mr Clark, Susan Gow (Ex.3 Tab 58) was asked about overtime allocations for the 12th and 13th November, and confirmed that it was her handwriting which crossed out "Booth" and entered McQueeney. However, Mr Clark did not ask Ms Gow whether she had seen Mr McQueeney on that day. 50 Nevertheless, Mr Clark found that he was reasonably satisfied that Mr McQueeney misconducted himself by not being present in the role of Station Officer between 1430 and 1700 on the 13th November, 2004 (Ex. 3 Page 1). 51 Ms Hancock then made broad submissions, summing up of that evidence which she repeated and which showed that the time sheets at Eloura East did not reflect reality because nurses entered local arrangements to arrive early or leave late. Mr McQueeney's evidence is consistent in that regard with Ms Smythe, Ms Bannister and Ms Martin. 52 Mr McQueeney gave evidence of working through his meal breaks and having another nurse cover for him so that he could arrive late for the start of his shift at the Illawarra Area Health Service (IAHS). 53 By contrast, there was no evidence he was not at the Ambulance Station between 1430 and 1700 hours. 54 Moreover, the respondent had ignored requests from Mr McQueeney to Mr Clark, Mr Gray and Mr Rochford to interview incoming and outgoing officers, i.e., those rostered at the time that morphine checks would have been done and to ask them whether or not he was at the Station, particularly during the two and a half hour period beginning of his shift on the 13th November, 2004 between 1430 and 1700 hours. The employer's reasoning is flawed because it relies upon, what were in effect, inaccurate timesheets of the IAHS.

55 Mr Clark reached the conclusion without checking with Ms Gow that Mr McQueeney was not at the Ambulance Station between 1430 and 1700 hours on the 13th November when there was no evidence that he was not there and moreover, relied upon hospital timesheets, which do not always reflect reality, referred to earlier. 56 Mr Clark in his report referred to conversations he had had with Nursing Unit Managers of both East and West Eloura of Shellharbour Hospital, noting the informal arrangements which meant that recorded times would not always reflect reality, but nonetheless, came to the conclusions that he did not accept Mr McQueeney's claim that it was common practice for nurses to arrive fifteen minutes late and make up time by missing a lunch break, and preferred the evidence of his discussion with the Nursing Unit Managers that such practice was occasional only. On that basis, he was reasonably satisfied that Mr McQueeney was actually present at Shellharbour Hospital at times when he claimed to be present at Wollongong Ambulance Station. Those comments related to the 21st November and the 24th November. Ms Hancock claimed that Mr Clark had mistaken the evidence of the Nursing Unit Managers when he found that they had said to him that the practice was occasional only, when in fact their evidence was in line with what Mr McQueeney said is the case. 57 Those matters related to charges 1 to 4 and therefore the report could not be relied upon to establish any of those charges when his report is fundamentally flawed. 58 Ms Hancock made a subsidiary submission that the Illawarra Area Health Service had provided Mr McQueeney with a Certificate of Service dated the 10th June, 2005, which specifically stated that "a certificate of this nature is not issued to any employee who has been guilty of misconduct or who has been dismissed for an offence". The Certificate (Ex. 38) was issued at a time when the IAHS was aware of the allegations against Mr McQueeney, because Mr Clark had sent a facsimile to Ms Smythe's office as to some questions regarding his attendance records (Ex. 3 Tab 69) and Ms Carol Martin and Ms Bannister had also been contacted by this time.

Charge 4 : Not being present at Wollongong Ambulance Station at 700 hours on the 28th November, 2004 . 68 In respect of Charge No. 4, Ms Hancock again relied upon the entry in the morphine book showing the applicant having signed on at 700 hours. 69 Whilst the Eloura West Hospital roster showed that Mr McQueeney was rostered to work between 2300 hours until 0730 hours (Ex. 3 Tab 63/67), he gave evidence that he worked through his meal breaks, and then had someone cover for him so that he could leave early before the end of his shift at Eloura to be at the Ambulance Station in time for the 700 hour start. 70 He also gave evidence that he took about ten minutes to get to his place of work as a nurse at Eloura West to the Wollongong Ambulance Station. 71 Ms Hancock again relied upon the evidence of Ms Anne Smythe already mentioned in respect of the other charges as to the informal arrangements between staff and on this occasion again of the evidence of Mr Stanojevic related in respect of Charge No. 3. 72 In addition, the evidence of Mr Norm Rees was that he did a morphine check with Mr McQueeney at 700 hours on the 28th November and that it was correct to say that the morphine check was done at that time. 73 Ms Hancock again relied upon the shortcomings related by her in respect of the earlier charges to do with Mr Clark's handling of the information given to him and his finding that he was satisfied of the offence, despite that evidence, i.e. that Mr McQueeney had misconducted himself in not being present at 700 hours on the 28th November, 2004 at the Wollongong Ambulance Station. 74 By way of submissions in relation to Charge No. 4, Ms Hancock again relied upon the evidence to show that the timesheets at Eloura West did not always reflect reality because of local arrangements entered into between staff to cover each other. This again is in line with the evidence of Mr Stanojevic, as recorded by Mr Clark in his telephone conversation, and also in line with the evidence of Mr Norman Rees. 75 Ms Hancock repeated that there was no evidence that he was not at the Ambulance Station at 700 hours and that no ambulance officers rostered on that time gave evidence that Mr McQueeney was not there, and neither was any such person interviewed and asked questions by Mr Clark. 76 The issue of the Certificate of Service by the Illawarra Area Health Service was again alluded to by Ms Hancock.

84 Mr Rees testified in regard to Charge No. 5 that it was not necessary for a Station Officer to be at the Station at all times, but it was the way the Ambulance Service would like it. Related to that, included in his evidence was that a Station Officer may be called away from the Station to supervise at the scene of an accident or to be at a workshop. On those occasions, triple 0 calls are redirected to the Ambulance Operations Centre at Warilla. Such jobs are despatched to the ambulance vehicle and to a Station Officer as a last resort to cover an emergency. Whilst no policy existed to his knowledge that an outgoing Station Officer should wait for an incoming Officer to arrive, Mr Rees believed that an Officer should not leave the office unattended. 85 Also in respect of Charge No. 5, the evidence of Mr Ian Hanna who was also included in the Clark interviews, was to the effect that there was a policy that a Station Officer should not leave until he is relieved. He believed that such a policy was included in the book in headquarters which outlined the procedure to follow. That evidence was not supported, as shown by the concession made on the record by the respondent on 8th June, 2007. 86 Ms Hancock also dealt with the issue of the purported reliance by the respondent upon a telephone conversation between the applicant and Officer Groves on the morning of the 3rd December prior to Mr McQueeney leaving. She highlighted the fact that there was a Departmental policy in place that said that a recorded private conversation cannot be used in investigating complaints not directly related to emergency situations. On that basis, the Department had breached its own policy by providing the tape that contained the conversation between the applicant and Mr Groves to Mr Clark, investigating the first five charges. 87 She highlighted the fact that Mr Clark in his report talked about the conversation between the two officers and where he said - "the most disturbing thing about this particular matter is that the suspicion arises that Mr McQueeney's attitude to his obligations to the Ambulance Service may well have been accurately summed up when he told Mr Groves that he had told Mr Hanna that 'I don't give a shit, I won't be here'". Also on that issue Ms Hancock claimed that Mr Clark's advice that the tape did not breach the Listening Devices Act, was incorrect. Mr Clark's finding should therefore be disregarded. 88 All this was relevant, Ms Hancock said, to Mr Clark's finding in respect of Charge No. 5 - that he was reasonably satisfied that Mr McQueeney misconducted himself in the management of his conflicting obligations on the morning of the 3rd December, 2004. 89 By way of submissions in respect of Charge No. 5, Ms Hancock highlighted that Mr Plumb had not been disciplined for running late; and that Mr Rees' evidence was that there was no policy in existence preventing an officer leaving at the end of his shift. 90 In her written submissions, Ms Hancock added that there was no danger in a Triple 0 call not being answered due to Mr McQueeney leaving the station unattended due to Mr Plumb's running late. 91 Ms Hancock maintained that Mr McQueeney did not breach any policy by leaving after the end of his official shift, as there was no policy which says that the outgoing Station Officer must wait for the incoming Station Officer before leaving. At its worst, his actions were irresponsible in accordance with Superintendent Hennessy's evidence.

Charge 6 : That between the 20th and 26th November, 2004 he worked five shifts for the IAHS and three shifts in the period 27th November to the 3rd December, 2004 for the IAHS. 92 The basis of this charge was that the applicant knew that the number of shifts he worked in secondary employment with the IAHS exceeded the approval given to him by the Ambulance Service to engage in secondary employment. 93 Ms Hancock began her response to this matter by pointing out that the applicant did have approval to work two shifts per week, that is, sixteen hours, as a nurse at the IAHS. She pointed to the evidence by Mr McQueeney that he had suffered post-traumatic stress disorder, which he believed made him work excessive hours and upon that realisation, removed himself from the casual pool and agreed to work only twenty-four hours per fortnight, that is three shifts per fortnight with the IAHS. This was reflected in the Certificate of Service referred to earlier (Ex. 38) where twelve hours per week on a part-time basis is mentioned. This is below the approval given by the Ambulance Service in September, 2004. These factors were not taken into account by the respondent before deciding to charge him for misconduct in relation to the period where he did exceed the original approval of sixteen hours per week. 94 Ms Hancock pointed to the evidence of Superintendent Hennessy which showed that the letter approving Mr McQueeney's secondary employment at the IAHS had a provision that he might be asked to resign if there was a conflict between his secondary employment and that of the Ambulance Service. 95 She compared Mr McQueeney's treatment with another employee at Ulladulla who did not have approval to engage in secondary employment and Superintendent Hennessy had merely written to him reminding him to comply with the policy. 96 Despite what Ms Hancock described as the minor character of this infraction of policy by Mr McQueeney, Mr Clark in his report found that Mr McQueeney had misconducted himself during those periods in November, 2004, and early December. 97 In her submissions as to Charge 6, Ms Hancock pointed to the fact that the applicant had only exceeded his quota over a period of two weeks and at that time he had only been engaged in that secondary employment for two months. She pointed out the limited extent to which he exceeded the approval, when he actually worked only one shift in the first week for which he is said to have misconducted himself and three shifts in the second week of the two weeks period. What should have happened was that he should have been asked to resign from his secondary employment as provided for in the policy and his treatment was unfair compared with the Ulladulla employee who had no approval to engage in secondary employment, and who was simply reminded of the need to get approval. Respondent's reply to Charges 1-5 98 Ms Anderson summed up the charges 1 to 4 as being allegations that Mr McQueeney had claimed to be at work at Wollongong Ambulance Station when in reality he was somewhere else - working for the Illawarra Area Health Service. Allegation 5 was in respect to the morning in which he abandoned his post on the 3rd December, 2004. 99 Ms Anderson spent some time throughout her submissions dealing with the related question of the Morphine Register, featured by Ms Hancock, on the basis that the applicant had maintained it would prove that he had actually been working by showing the signatures at the start and finish of his shifts at the Wollongong Ambulance Service. The Morphine Register supposedly showed him as signing the register after counting the drugs and being countersigned by other officers present at the time. 100 As the respondent's case got underway, the emphasis quickly shifted from the applicant's claims as to the failure of the respondent to use the register as proof of his attendance, to the important additional allegation set out at the beginning of this decision, that he, himself, had improperly retained possession or control over the Ambulance Station Morphine Register during the period between 1st February, 2006 and 28 February, 2007. 101 As far as the respondent was concerned, the copies of extracts of the register belatedly brought into evidence by the applicant, turned out to be a major test as to the applicant's overall credibility and integrity as a trusted employee. In a necessarily painstaking exercise, dealt with later in this decision, Ms Anderson attempted to show the applicant as an unreliable witness who was exposed on numerous issues throughout this lengthy hearing, as being willing to invent explanations and to deliberately set out to confuse and to attack as the best form of defence. She strongly submitted that the examples in the evidence provided throughout his submissions would be sufficient to pass the civil standard of proof to meet the test of reasonable satisfaction for the Commission, well beyond the "inexact proofs or indefinite testimony, or indirect inferences", which were a concern for Dixon J in Briginshaw. 102 Likewise, she thought that the Commission can be satisfied on the question of whether the applicant's conduct in respect of all charges constituted misconduct for the purpose of meriting a summary dismissal.

105 In the process of dealing with the applicant's attempt to defend his use of Ms Yule as the one who relieved him, Ms Anderson distinguished the situation of Ms Pauline Salmond who was the example used by the applicant to support his contention that the Disposition Sheets of the Illawarra Area Health Service are not always accurate and where in this case, Ms Salmond was also shown as being on duty at a particular time at both Eloura East and Eloura West. This was said by the applicant to demonstrate that Ms Yule, like Ms Salmond, had also been working in both areas between 2.30pm and 3.30pm. 106 This apparent discrepancy with respect to Ms Salmond was however cleared up by Ms Bannister during their evidence on the 16th March, on the basis that Ms Salmond was on overtime, working a double shift, and Ms Bannister's evidence showed that whilst Ms Salmond was supposedly in Eloura West until 3.30pm, she had actually came over to Eloura East at 2.30 pm. This was said by Ms Bannister to be common practice when people do a double shift, although she is paid by Eloura West until 3.30pm, but freed up to go across to Eloura East, so that she might get a handover for the second shift at Eloura East, and she would also have to have a half hour paid break between those double shifts. In addition, Ms Salmond was a permanent member of staff and Ms Anderson ridiculed the likelihood that the hospital would pay a casual like Mr McQueeney for the same time as when Ms Yule was on deck. This showed that the applicant's claim of being at the Wollongong Ambulance Station between 2.30 and 5pm was worthless, she said. 107 This important claim by the applicant that other persons covered for him at short intervals in respect to the various charges, also involved him not being able to remember at the time of the Clark inquiry the persons who covered for him on those days involved. However, during his oral evidence, he claimed to be able to provide the names of the persons who covered for him and offered to provide those person's names to Ms Hancock so that they might be called. 108 He also said in his oral evidence that Ms Susan Gow from the Ambulance Service "was the person who relieved me that day and will verify that I was there that day". He had also answered in response to the question from Ms Anderson "well, no doubt the union will call her?", his answer was "I certainly hope so". Again, there was no attempt apparently to actually call Ms Gow to say that he was still at the Ambulance Station at five o'clock that day. If it was true, Ms Gow would have been called, claimed Ms Anderson.

Charge No. 5: 112 This allegation was that the applicant left early on the morning of the 3rd December, 2004 from his position as Station Officer at Wollongong Ambulance Station, which Ms Anderson insisted constituted misconduct on a number of grounds. Ms Anderson first pointed to the evidence of Mr Randal in his interview with Mr Clark in answer to the question by Mr Clark as to what he would do in a situation where he could not obtain anyone to relieve him, to which Mr Randal had replied "well, I would stay at work until I found someone to relieve, because that is the position that must be filled". Mr Randal confirmed that evidence on the 9th July before the Commission. The evidence of Mr Randal was also that, whilst he had never read a policy which required employees such as Station Officers to stay back if they are not relieved on time, "….but you would do that, because it is a position that has to be filled, someone has to be there". 113 Ms Anderson also relied upon the evidence of Mr Hanna who also said that the applicant in his position should have stayed until relieved, when he said "to the best of my knowledge and belief, the Station Officer performing night duty at Wollongong Station is not permitted to cease duty until such time as he or she is relieved by the incoming Station Officer". 114 Ms Anderson pointed out that it did not assist Mr McQueeney's case to say that sometimes incoming officers do not see an outgoing officer, if the outgoing Station Officer is on an emergency call, as this merely points out that there is work to be done, important work to be done, and it was a major Ambulance Station. Also, in the case of emergency callouts, the officer involved can arrange for someone to cover the situation by using the communications system such as the car radio, and as a final resort, if necessary, the station can simply be locked. In the applicant's case, it is a fact that he simply got up and left. 115 Contrary to Ms Hancock's claim, the particular shift for which the applicant was officially rostered, finished at seven o'clock and not 6.35am which was the time that the applicant left. His position was certainly a supervisory role, and what Mr Hanna and Mr Randal said about the position needing to be filled, should be noted by the Commission. 116 Ms Anderson was also required to deal with the submissions of Ms Hancock that the service, contrary to its own policy, through Mr Clark's report, had relied upon what was described as a frivolous telephone conversation between the applicant and another officer (Mr Groves). Ms Anderson responded that the respondent does not rely upon that taped conversation, and did not need to rely upon it, even though it went to showing the applicant's attitude. 117 Also on this issue, it was pointed out that Superintendent Hennessy at the hearing of the 17th May (page 24) stated that Officer Plumb had apparently signed a form on behalf of the applicant to institute a shift exchange. In fact, whilst that was the arrangement he had made with Mr McQueeney, the arrangement should have involved the ambulance service's approval. 118 It was also inappropriate for the applicant to leave in circumstances where Mr Hanna was running late, and where Mr Plumb, who had made only an informal arrangement to swap shift times with Mr McQueeney, had not turned up. 119 Superintendent Hennessy's evidence pointed out that the change of shift time for the position of Station Officer happened when the applicant was in a supervisory position, responsible to ensure that all shifts were covered. If there were shortfalls, that position holds the keys to the vehicles across the sector as well, and as to the question of the level of inappropriateness, she gave the response that it was very irresponsible and putting staff at risk. Ms Anderson pointed to the fact that Mr Randal and Mr Hanna had both given evidence that they would not do what the applicant did, and in the light of Superintendent Hennessy's evidence of it being very irresponsible, his behaviour in terms of this case constituted misconduct. The Morphine Register (Charges 1 - 5) 120 As reflected upon earlier, Ms Anderson took the Commission to an important issue emphasised by Ms Hancock, related to his alleged absences raised by the applicant, that he had invited Mr Clark to not only check with some eighteen officers who he said could verify his presence on the dates and times involved in charges 1 to 4, but also that he should check with the Morphine Register. This he stated emphatically would show that he was on duty and counter-signing at the actual time of arrival and departure on those dates. 121 She asked the Commission to note the significance of the date that the Morphine Register was found to have been stolen, i.e. between 2nd and 15th February, 2005, (Exhibit 27 Tab F - report by Station Officer Ryan), in relation to other claims by the applicant after that time. 122 Ms Anderson traversed issues such as that the applicant had not raised the relevance of the Morphine Register with Mr Clark on 8th April, 2005, in the context that he claimed he had done during the interview with Mr Gray on 1st February, 2006. 123 She also emphasised that the extract of the register finally produced during the proceedings before the Commission, did not prove, as Mr McQueeney contended - that the times entered were actually accurate as to when officers signed on and off duty. 124 Most important of all, she sought to show that the apparent discrepancies between the sets of copies of the register pages presented by the applicant for the hearing, in the way of the mysterious appearance of missing page numbers and other markings on copies but which were not on the original, proved that the original register had been copied on more than one occasion. This indicated its possession or control by the applicant (where only one original copy came to the applicant in the mail). 125 In support of that contention, the respondent produced two reports from an expert witness, Ms M Novotny, a "Handwriting and Questioned Document" specialist, to show the applicant's fraudulent behaviour (Exhibit 21 and 42). 126 Contrary to Mr McQueeney's contention that the differences in markings of the copies of the document were simply explainable on the basis of the fact that the pages being copied were misaligned on the photocopy, Ms Anderson demonstrated by reference to the expert report, the peculiarities of numbers missing from what was acknowledged by the applicant and through the evidence of Mr Morgan, to be the original set of the document, had mysteriously appeared on the subsequent photocopies. The fact that the various marking and entries of the centrefold section was different than those on subsequent copies also could not simply be explained on the basis of different positioning of the original copies upon the photocopier, because again, the remnants of entries from the opposite page when the register was spread out to photocopy, should have appeared on the other subsequent copies taken.

127 Ms Anderson's revelations as to how Mr McQueeney lied to Mr Gray at the 1st February, 2006 interview about challenging Mr Clark to go to the register were quite exacting. She began with the fact that Mr Clark had written to Mr McQueeney on the 27th February, 2005 (Ex. 3 Vol 1 Tab B(B)) but did not include the dates with Charges 1 - 5 in the list of matters raised in that letter. That also becomes important, because if Mr McQueeney did not know the dates at the time of the 8th April, 2005 Clark interview, he could hardly have asked Mr Clark to review the register to see the start/finish times. 128 More conclusively, she pointed out what turned out to be two irrelevant references to the Morphine Register made by Mr McQueeney in his interview with Mr Clark on the 8th April, 2005, which proved her point that Mr McQueeney therefore did not tell Mr Clark that the Morphine Register would prove his innocence in respect to allegations 1 - 4 in the letter of dismissal, as he claimed to Mr Gray on 1st February, 2006. Therefore, it is hardly surprising that Mr Clark did not pursue the matter of the Morphine Register, for which he was later erroneously criticized by Mr McQueeney, both during the discipline/investigation process and later in these proceedings. 129 In any event, Ms Anderson submitted, it is now abundantly clear that the Morphine Register had gone missing between the 2nd and 15th February, 2005, approximately two months before Mr McQueeney made his oral representations to Mr Clark on the 8th April, 2005. This was borne out by the memorandum dated the 15th February, 2005 from Station Officer Ryan to Superintendent Hennessy, which was Annexure F to her affidavit (Ex. 27). The respondent's argument that Mr McQueeney was aware it had gone missing, yet made false representations in respect of it, was developed as follows. 130 The applicant's freedom of information application for the Morphine Register much later, on approximately the 14th November, 2005, showed that the applicant would do anything in order to escape the consequences of his misconduct, she said. She backed up that claim on the basis that if Mr McQueeney believed that the Morphine Register would prove his innocence, why did he wait until some nine months after it went missing (seven months after he made his oral representations to Mr Clark) to make the FOI application. The answer, Ms Anderson suggested, was a simple one, the claim that the Morphine Register would prove his innocence was a recent invention. 131 More seriously, she claimed that Mr McQueeney was aware that the Morphine Register was missing well before his interview with Mr Gray on the 1st February, 2006 (Annex. "U" to Ex. 2). The applicant had told Mr Gray that day, that he had been informed that the register could not be located and told Mr Gray that he had not had access to the Morphine Register because all locks had been changed at Wollongong Station. Ms Anderson noted that the applicant had made the same claim to Mr Rochford during his interview on the 31st August, 2006. 132 There was a question arising as to that particular claim of the applicant. Superintendent Hennessy had indicated in her affidavit (Ex. 27) that the last time the register was seen was the 2nd February, 2005, and was gone by 15th February, 2005. When this is combined with the fact that Annex. (H) to Superintendent Hennessy's affidavit, showed that the applicant worked as a Station Officer at Wollongong on the 5th, 6th and 7th February, clearly the applicant had the opportunity to take it, prior to the locks being changed, contrary to the impression he created at interview.

133 Ms Anderson described everything that the applicant had told Mr Gray about the Morphine Register at Wollongong as "just nonsense". 134 Ms Anderson went through an exacting process to describe and distinguish the various copies of Morphine Register extract, to show the Commission that based upon the applicant's evidence, and related back to Mr Morgan's evidence of what he received from the applicant, the original shown to Mr Rochford (or a colour copy thereof) was the document marked "A3" found at pages 12 to 14 of her report Exhibit 21. 135 Apart from the outline already provided, the background to the respondent's pursuit of the applicant's credibility over the issue of the Morphine Register, included that a summons for production resulted in the applicant providing copies of the pages allegedly sent to him by persons unknown, covering the dates related to Charges 1 to 4. Exhibit 17 was the basis for the attachment to his witness statement, Exhibit 5, Annexure 3. 136 Ms Anderson first pointed to a difference in the documents attached to Mr McQueeney's statement between pages 6,7 and 8 of the Novotny report or Exhibit 17 and pages 9,10 and 11 in that the latter had the additional numbers commencing 3, 1/3 on the top right hand corner, which were the numbers that Mr Morgan, who represented the applicant at the time, wrote on the bottom for the purpose of identifying them when he attended to Mr McQueeney's statement. 137 She next turned to Exhibit 18 which were similar documents, but which had no facsimile transmission mark which indicated that they were the documents produced to the Commission on the 25th January, 2007 and had come into Mr Morgan's possession by post from the applicant. Ms Anderson summed the situation up so far; that Exhibits 17 and 18 are the same document, except for the fact that Exhibit 18 was sent to Mr Morgan by mail, rather than facsimile. There were actually three documents which are the same for all relevant purposes, one being Exhibit 18 mailed to Mr Morgan, all the pages of which are black and white. All the pages in Exhibit 17 are black and white and in the third document, that is, Attachment 3 to Exhibit 5, all the pages are black and white. Exhibit 18 has the marking on the top left hand corner "Attention Bob Morgan, 1/3, B Morgan 2/3, B Morgan 3/3. 138 Ms Anderson submitted that Exhibit 17 (and attachment 3 to Ex. 5) which also had the markings Attention Bob Morgan 1/3, 2/3 and 3/3 at the top of the pages was on the balance of probabilities the document transmitted by Fax from the applicant from the Robinson Internet Café to Mr Morgan. 139 That is what Mr Morgan had been given by the applicant prior to the hearing on the morning of the 19th February, 2007. 140 Ms Anderson then took the Commission to Mr Morgan's statement which is marked Exhibit 49 and paragraph 13 therein, where Mr Morgan said, "Officer McQueeney attended the union office at about 8.30am on 19th February and had with him a bag which contained a large number of documents. He said to me in words to the effect, "I've been going through all my stuff and I've found colour copies of the Morphine Register that I showed Rochford at the meeting with David. I seem to have lost a page somewhere though, and one page is in black and white not colour"" 141 At paragraph 15 of his statement, Mr Morgan recalled that he took colour photocopies of those pages on the union's colour photocopier and provided one set of the photocopies to Mr McQueeney to ensure that he retained a copy. Mr Morgan accepts that it is possible that he returned the copy that Mr McQueeney had given him, which he refers to as the original, and that Mr Morgan retained the copies. What he believed to be originals, he produced in response to the summons mentioned earlier and produced at the commencement of the hearing. 142 Ms Anderson pointed to the evidence of Mr Morgan who stressed that he did not take particular notice of whether or not he aligned the originals perfectly when photocopying them. 143 Crucial to Ms Anderson's argument that the register was copied more than once, was the expert reports by Ms Novotny, mentioned earlier (Ex. 21 and 42). The respondent's contention arising from those reports by Ms Novotny was that a comparison of all three sets of documents showed that, having regard for Mr Morgan's evidence, it can be inferred that he would have noticed if the documents he was photocopying were anything other than an A4 size. From that basis the differences in the margins identified by Ms Novotny, could only be explained if the different sets of copies had been taken from the Morphine Register itself or from an A3 size copy of the Morphine Register. 144 Those differences highlighted by Ms Novotny included the fact that the page numbers of the Morphine Register and the other written material that are included in A1 (pages 6, 7 and 8) and A2 (pages 9, 10 and 11) are not on A3 (the original) (pages 12, 13 and 14). 145 She submitted that it is not possible to produce a copy, whether you scan it, or whether you photocopy it, of material that is not there to be copied in the first place. You cannot produce a copy of non-existent material. So accepting that Mr McQueeney says that A3 is a colour copy (or the original) of what he showed to Mr Rochford, it should have been the source document for A1 and A2, because he claims he did not have the register. 146 Ms Novotny's report and supplement report provided further insight into distinguishing the various Morphine Register extracts, comparing features not summarised here, because of the detail involved, but which the Commission has been convinced have provided logical explanations of markings not readily apparent and supporting her conclusions. 147 Put more specifically, Ms Anderson posed the proposition as to why the applicant was able to have page 189 on pages 6 and 9, but that it did not appear on page 12, which was supposed to be the original shown to Mr Rochford and similarly how could the page number 191 be on pages 8 and 11 of Exhibit 21 (the Novotny report) when it does not appear on page 14 (the original). She described that phenomena as a miracle. 148 She pointed out that the applicant finally indicated that the content of the copies is the same. That is the case, whether or not the document that he produced in the Commission was the same as what he showed to Mr Rochford, and agreed that the content of the document would be the same as the content of the document that he received in the envelope. The applicant confirmed that the document that he had in the witness stand was identical to the one received in the envelope by him. 149 Ms Anderson submitted that the one thing that arises is that the document marked A3 in Ms Novotny's report is what the applicant said he got in the envelope, or one identical to it, and if that did not have the Morphine Registered numbers on it, then how could they appear on Exhibit 17, Exhibit 18 and Attachment 3 to his statement. Such a situation is impossible. The one certain thing is that the only way that Mr McQueeney could have produced the copies which are Exhibits 17, 18 and Attachment 3 to his statement, is from either a further copy using the Morphine Register itself, or from an A3 size copy of paper of the Morphine Register. Ms Anderson pointed to the question posed to the applicant that it was impossible for the copy attached to his statement to have been produced from the copy which he testified and was produced by Mr Morgan as the one shown to Mr Rochford. 150 In respect to an additional curious matter to do with the Morphine Register, Ms Anderson also spent some time dealing with the fact that the applicant had refused to permit Mr Rochford, the Chief Executive Officer, to take a copy of the coloured copies of the extract of the Morphine Register. 151 She maintained, assisted by quoting the relevant transcript, that there was no valid reason for the applicant's failure to allow Mr Rochford to take photocopies at the time. In response to the final reason offered by the applicant that it was on the advice of his union representative at the time that he would not allow the documents to be photocopied, Ms Anderson described Mr Morgan's evidence on that point as "all over the place" in attempting to explain that lack of co-operation. Ms Anderson highlighted the fact that his refusal to co-operate by allowing photocopies to be taken should be looked at in the context that this document was what he maintained would prove his innocence, yet he refused Mr Rochford the opportunity for a copy. 152 She also pointed out that when the documents were summonsed, the applicant initially claimed that he did not have them, and when taken to that issue in cross-examination, he claimed that he would not know which were the originals of the copies that he had shown Mr Rochford, and gave the response "most certainly not. Because they are all identical". Charge No. 6 - Working for periods in excess of the approval to engage in secondary employment 153 Ms Anderson responded to the submissions of Ms Hancock on this charge that the respondent would have to concede that the allegation, if stood alone and limited to the period of 20th November to 3rd December, 2004, and working something in the order of half a dozen shifts too many in that two weeks, would probably not satisfy the Commission, as being conduct of such a nature as to repudiate the contract of employment. She insisted however, that it was getting close to being misconduct because a lot of extra shifts had to be undertaken within a period of something like fourteen days.

Charge No. 7 - Failure to report larceny offence under Section 117 of the Crimes Act 1900 159 Ms Hancock relied upon the evidence of the applicant that he had sent Superintendent Hennessy an e-mail advising that he had been charged and later provided a hard copy of the same document (Ex. 5 Tab 2). He was entitled to assume that she had received the e-mail because he had not received a "non delivery" or a "bounce back" notification to say that the e-mail had not been received by the e-mail recipient. She also relied upon the evidence of Patrick Brady (as Manager Technical Services) who said that "bounceback" or "ndr" (non delivery received) was not always guaranteed if wrongly addressed. 160 It was fair enough for Mr McQueeney to assume that the e-mail had reached Superintendent Hennessy. 161 Ms Hancock summarised Superintendent Hennessy's evidence as being that she did not receive the e-mail but could not give a definite answer that it had not been sent. Superintendent Hennessy was advised of Mr McQueeney's charge by a third party. There was no evidence that Mr McQueeney did not send his e-mail and the only evidence is that Superintendent Hennessy did not receive the e-mail. Ms Hancock thought there had been a denial of natural justice when Superintendent Hennessy reported him to the PSCU without asking Mr McQueeney about the matter. 162 In respect of Mr Cyril Brown's report of the incident, it said that the shoplifting charge did not affect his ability as an ambulance officer (Ex. 2 Tab Q) and neither was Mr McQueeney on duty when the offence occurred. Included in Mr Brown's report was the transcript of court sentencing which shows the item stolen was a box of Medi-slim weight loss tablets and that the Magistrate took into account the impact of a criminal record on Mr McQueeney's ability to participate in the nursing profession. 163 Mr McQueeney did not make reference to his employment at the Ambulance Service at the hearing, but mentioned the nursing profession. 164 So far as the requirement to immediately report the charge to the service, it is not known when the charge was laid, but Mr McQueeney sent an e-mail on the 5th May, 2004 and he appeared in court on the 7th June, 2004. 165 The onus is on the respondent to make out its case in respect of the alleged failure to report this charge, which it has failed to do said Ms Hancock.

171 She reminded the Commission that the applicant at first maintained that he had actually sent the e-mail to Ms Hennessy, and it was only during proceedings (after reading the affidavit of Mr Brady alluded to earlier) that he acknowledged that he had not put the correct address on the e-mail and therefore, it would not have been received by Superintendent Hennessy. 172 In answer to Ms Hancock's submission on one subsidiary aspect, Ms Anderson pointed out that, although no conviction was recorded by Magistrate O'Connor, he did not accept that the offence was "not a premeditated and contrived offence". 173 She disagreed with Mr Brown's report when he found that, although Mr McQueeney failed to report the fact of the charge, the applicant's crime was not "such an extent to render him unfit to provide ambulance services to the public". 174 Mr Brown had failed to give sufficient weight to the fact that the object of disciplinary proceedings is to protect the public and to maintain proper standards of conduct of members of the Ambulance Service and to protect the reputation of the Ambulance Service. In that regard she relied upon legal precedent in the case of "Commissioner of Police vs Donlan and Hanson (NSW C of A No. CA40587 of 1994 and No. CA40588 of 1994, August 1995 unreported; and also upon the decision in Hardcastle vs Commissioner of Police (1984) 53 ALR 593 @ 597. 175 She pointed to the fact that during the interview with Mr Gray on the 1st February in his capacity of Acting CEO, Mr McQueeney had first attempted to mislead the Service into thinking that he had properly sent the e-mail to Superintendent Hennessy and the supposed concession he now makes about the wrong address, is just one more lie in his attempt to avoid the consequences of his misconduct. 176 Mr Gray failed to obtain a copy of the alleged e-mail during a conference with the applicant on the 1st February, 2006 and it fell to Ms Ashelford also present, to seek a copy from Mr Morgan of the union, and it is from this point onwards that the applicant has told one lie after another, according to Ms Anderson. 177 Firstly, he supposedly sent Ms Ashelford a copy of a document (Page 6/6 of Tab 2 Ex. 5) on the 16th February, 2006 (obscured by stain over the bulk of the text). 178 Secondly, during his interview with Mr Rochford, CEO, on 31st August, 2006 he provided the CEO with the document which was marked "B2" in appendix "A" of Mr Westward Hill's expert report (Ex. 13) (which only contained the headnote with the address details etc. and not the body of the message). 179 According to Ms Anderson, the likelihood that the applicant had presented a forgery became apparent when he finally provided a copy of the "B2" e-mail to Mr Rochford (which had the wrong date of 6th May, 2004 instead of 5th May). 180 The applicant quickly realised he had made a mistake at that stage said Ms Anderson, when taking the Commission to the various parts of the transcript of the interview with Mr Rochford on 31st August, 2006 to demonstrate what she regarded as the somewhat desperate attempts by Mr McQueeney in short order to retrieve the "B2" e-mail. 181 She took the Commission firstly to Ex. 2 Tab X of Mr Sivarajah's affidavit (page 13 of the transcript of that interview). Mr McQueeney made his first attempt at retrieving the document with the words "I'll have it back then" and then at page 16 of the same transcript, Ms Anderson pointed out the second attempt by the applicant to rescue the document with the words, at line 35 "I'll take that back". At page 17 of the recorded interview at line 30, the applicant made a further attempt with the words "if I can just grab that back for a minute". There were other areas of the transcript of that interview referred to by Ms Anderson in her final submissions which also pointed to the applicant's discomfort of having to leave the "A" Exhibit 13 document in Mr Rochford's possession. 182 Ms Anderson believed that that record of the applicant's behaviour at the interview on 31st August, 2006, strengthened the respondent's case that the applicant had realised during the conversation with Mr Rochford that the document he had finally given over was imperfect, in that it had mistakenly been dated the 6th May, 2004, instead of 5th May, as originally contended (see "B2" of Mr Westward Hill's report mentioned earlier - Exhibit 13). 183 The circumstances where Mr McQueeney's wife had written to the Minister for Health, dated March, 2007, (Ex. 20), complaining about the cost of these proceedings to the State, was another circumstance then expanded upon by Ms Anderson, which allows the Commission to more readily accept the evidence that indicates that "B2" is a concoction. 184 She began that point with the premise that the failure of the applicant to produce the computer is a Jones vs. Dunkel point (1959) 101 CLR 298. 185 The applicant's evidence with respect to making his wife's computer available has been a complete charade said Ms Anderson who referred the Commission to a comparison of the evidence given by the applicant on that issue. The transcript of 14th March, was where the matter of his wife's writing to the Health Minister was compared to his evidence the next day at page 46 of transcript of the 15th March, when he gave the excuse of his wife's lack of co-operation as the reason for not producing the promised computer. On the second day, Ms Anderson put the proposition to him that it was difficult to believe that the same wife who wrote the lengthy e-mail in support of her husband to the Minister during these proceedings on 28th February, 2007, about the cost and length of these proceedings, had hung up on him, as he claimed in transcript of 15th March, without allowing him to ask for the computer. 186 Ms Anderson then moved on to the major claim against the applicant which she believed was established by the evidence of the expert witness, Mr Westward-Hill and further contended that the demonstration by the union's rival expert witness Mr Daniel also makes it clear that "B2" of Tab A, Ex. 13 is a concoction. 187 It was necessary for Ms Anderson to deal with the submissions of Ms Hancock, which claimed that Mr Daniel's report and evidence was to be preferred over that of Mr Westward-Hill. Ms Anderson contended that it was abundantly clear that, in so far as the forensic examination of documents is concerned, Mr Daniels qualifications are less than those of Mr Westward-Hill. Indeed, Mr Daniel indicated that, without first conducting some testing, he was unable to comment on the proposition that in order to print out the e-mail, the applicant had maintained that it was necessary for him to send it to another hotmail account. In any event, Mr Daniel's evidence also points to "B2" being a concoction and on transcript acknowledged that "B2" is a screen capture and the person who printed it off actually (and deliberately) chose not to print off the whole of the e-mail. 188 On the other hand, Mr Westward-Hill was able to give evidence that it was not necessary for the applicant to forward the e-mail, allegedly sent to him by his wife on the 25th January, 2006 (Part of B1) in appendix "A" to Ex. 13), to another hotmail account in order for him to print it off without the "shortcuts" (as per the applicant's contention). 189 Ms Anderson also pointed out that, notwithstanding Mr Daniel's comment under the heading "Conclusion" (of page 7 as a report Ex. 51), "an examination of the sending and receiving computer would be required to provide a more detailed assessment of the differences and to identify the specific causes", no offer was made by the applicant to provide the "sending computer" to Mr Daniel.

190 Referring to an important aspect of the expert report of Mr Westward-Hill, Ms Anderson emphasised his evidence that human manipulation was involved in the preparation of "B2" (Ex: 15) and claimed this was borne out by the transcript of the 1st June, 2007. That transcript at page 46 involved an attempt by Ms Anderson to have Mr Daniel explain why "B2" seems to have excluded some seven lines of the complete e-mail "B1" supposedly sent by Leanne McQueeney on the 25th January, 2006 and finally shows Mr Daniel making a clear concession to a crucial question. Q: " it's been deleted and that could only be done by human manipulation" , A: "Yes ". 191 Ms Anderson referred the Commission to the relevant transcript on both the 1st June, during the evidence given by Mr Daniel, and the evidence of Mr Westward-Hill on the 8th June at page 4 in attempting to understand the level of probability of an e-mail sent on a particular day, somehow changing its date by precisely one day at the receiving end. 192 In that instance, a flaw in the hotmail system revealed in the evidence was identified and dealt with by Ms Anderson, showing that at the receiving computer, an e-mail incorrectly shows the time that it was sent from the sending computer as the time of receipt at the receiving computer. However, notwithstanding that flaw referred to there, when the e-mail is forwarded from the receiving computer it then shows the correct time at which the e-mail was sent from the original computer. This was confirmed by the evidence of Mr Westward-Hill at page 4 of the transcript of the 8th June. 193 It was also significant according to Ms Anderson's submissions that there was no time zone configuration in the world which was exactly twenty-four hours apart; all of which provides cogent evidence that the applicant's claim that he sent the e-mail to Superintendent Hennessy is false and that he has concocted false documents to support that claim. Neither could it be explained by the regional location and settings of the sending computer.

197 In respect of Item 1, the Committee of Enquiry Reports; Ms Hancock suggested that there was no way of knowing what Committee of Enquiry Reports were taken into consideration, or the way in which they were considered, and as Mr Rochford was not called to give evidence, there is no way of knowing how this item was considered and its contribution to the summary dismissal of Mr McQueeney. 198 In respect of Item 2, the Provisions of Clause 14 of the Ambulance Service Regulations of 2005; there was likewise no way of knowing what part of the Regulation was taken into consideration and again, since Mr Rochford, the author of the letter was not called, there is no way of knowing how this item was considered or to the extent it contributed to his summary dismissal. 199 In respect of Item 3, Previous Conduct, in particular the reprimand under the Ambulance Service Regulation of 2000 in relation to the police investigation of a motor vehicle accident, Ms Hancock spent some considerable time in her written and oral submissions in this regard. She began by reminding the Commission that within Ex. 5 Tab 10, Mr Cyril Brown was asked to conduct a report in respect of the police incident. His report relied upon the evidence presented in the fact-finding report conducted by Superintendent G Willis and Mr McQueeney's reply letter dated the 12th May, 2003. Mr Brown found four charges to be made out, namely the charges with respect to Constable Delaney and Constable Roberts. In respect to Constable Delaney it was alleged that Mr McQueeney said that he was an "Inspector" with the Ambulance Service and he did not think he should be subjected to police harassment. In respect of Constable Roberts, Mr McQueeney is alleged to have threatened her to have Police Officer Dedden, whom Mr McQueeney knew in a professional capacity through his employment with the Ambulance Service, to "fix her". 200 Ms Hancock relied on the applicant's own evidence under cross-examination that he did not threaten Ms Roberts by telling her that he would get a more senior officer to "fix her" and he also denied calling her "girlie" (transcript 15th March, 2007 page 68). 201 She also pointed to his evidence in re-examination that the reprimand for the two charges involving Police Officers Delaney and Roberts should never have been issued to him and Ms Hancock pointed out that Mr Delaney's own statement did not actually say that he claimed to be an Inspector with the Ambulance Service. In that area, Mr McQueeney pointed out that Mr Delaney's statement merely says that Mr McQueeney claimed that he was "an Inspector". He also claimed that, if he had threatened Officer Roberts, she would have reported it to Inspector Robinson that same evening. 202 Ms Hancock went through the primary pieces of evidence given by Constable Roberts, such as that she had indicated that the applicant was not unco-operative the whole of the time. He did tell her that he was a Duty Officer and she testified that her intention of reporting the matter was because of what she regarded as the totally unprofessional behaviour of someone she understood to be a senior Ambulance Officer. 203 Ms Hancock indicated that as a Probationary Constable, Ms Roberts was at the very bottom of the heap (so to speak) and therefore anything might intimidate her when it comes to someone threatening to report her to the Police Integrity Commission or the Ombudsman. 204 Ms Hancock also dealt with the evidence of Constable Leighton-Daley, who gave evidence on the 15th March. Ms Hancock summarised his evidence on the basis that he had probably spoken on the 26th September to the applicant on his mobile phone and made further attempts to call Mr McQueeney on the 21st October, 2004, but was unsure as to whether he left a message and he could not be certain that he left telephone messages with Mr McQueeney on the 23rd and 29th October, 2004. His evidence also included that he was advised by Mr McQueeney that he was an "On Call Duty Officer" and that he got the impression from Mr McQueeney that he was on call, and he may be required around the clock and would have been unable to make an appointment at a certain time to attend the Police Station. 205 Ms Hancock referred to the evidence that showed that other police officers were also involved in an attempt to contact Mr McQueeney over the alleged car accident and most of them called him more than once and those details are contained in Exhibit 4 Tabs 4-11. 206 Reference was also made by Ms Hancock to the evidence of Constable Roberts that she had approached Chief Inspector Ken McDonald about her concerns in her dealings with Mr McQueeney (Ex. 4 Tab 3), and he had already spoken to Chief Inspector Mick Robinson, and then contacted Superintendent Hennessy expressing concerns about what he had been told about Mr McQueeney's behaviour. 207 Ms Hancock referred to the fact that Chief Inspector Robinson had described the incident between Mr McQueeney and Constable Roberts as being merely "a communication problem" (Ex. 4 Tab 8). 208 Ms Hancock also relied upon the fact that Superintendent Hennessy had given evidence that she had conducted performance reviews with Mr McQueeney as a result of the disciplinary action over his conduct with the police over the motor accident incident and found him to be intellectually talented, with the capacity to succeed and recognised in the second review that he was participating in the appraisals in an open manner. Superintendent Hennessy also acknowledged that Mr McQueeney had asked for his National Medal which was awarded by the Federal government, but this was withheld, presumably at the instigation of the employer. 209 Exhibit 2, Tab L, was a record of an interview by the investigator, Mr Kurnik, with Sandra Bell, the mother of one of Mr McQueeney's children and an Ambulance Officer. Her interview was in relation to what she had overheard of Mr McQueeney's conversation with a female constable on the 31st October and with another officer, Chief Inspector Robinson, also earlier referred to. She said in that interview that Mr McQueeney's demeanour with respect to the female Constable was nothing out of the ordinary and likewise his conversation with Chief Inspector Robinson. 210 Ms Hancock believed that in view of the fact that the Memorandum of Understanding liaison meeting held as a result of the complaint had actually involved Mr McQueeney, who was asked by Superintendent Hennessy to attend in the company of the police, the matter could not have been too serious. 211 In her submissions Ms Hancock alluded to the fact that the circumstances giving rise to the vehicle accident were not the subject to the fact finding investigation. She contended that Mr Brad Kurnik's finding that Sandra Bell's evidence was unreliable, as she was privy to Mr McQueeney's interview, or that she had been coaxed to giving evidence, was never put to Ms Bell, so that she might have been denied procedural fairness, and she denied having seen a copy of Mr McQueeney's interview as to the issue, again which was not challenged with her. As to why she took so long to attend the interview, this was explained on the basis that her father was sick in Queensland.

225 The outstanding feature of this case has been the extent to which the applicant's case has relied upon the shift of onus at so many stages, including the disciplinary investigation process, and eventually to justify not bringing certain evidence in his own support at the hearing, which could have clarified several major issues. These areas really required a more active response by Mr McQueeney and testimony finally from hospital staff to back-up his claims of such staff stepping in with the so-called informal arrangements. On another issue, his case could have been clarified by the production of the computer from which he claimed the e-mail had been sent to Superintendent Hennessy (the Hennessy e-mail). 226 The Commission has been uncomfortable with this stance taken here by the applicant, especially where he claimed at the hearing to be able to bring evidence from hospital staff to refute the alleged absences from the Ambulance Station, but chose not to co-operate at the stage of the Clark enquiry, claiming memory loss. 227 Whilst what is often loosely referred to as the Briginshaw standard of proof, dealt with in some detail by both Counsel, it has been an important ingredient in ensuring that justice prevails to ensure misconduct cases receive adequate scrutiny, and it should not be seen as being so elastic as to effectively make it impossible to accept commonsense deductions and strong inferences falling from the evidence, consistent with the civil standard of proof. The concept of reasonable satisfaction seems open to interpretation, but the Commission has been careful in this case to have regard to whether something is very much more likely to have happened, along with the related tests, inter alia, of reasonable satisfaction or of something being glaringly improbable. These must, of course, be anchored back to the civil standard of proof of the balance of probabilities. 228 More specifically to the circumstances of this case, the applicant was on notice for a long time through the investigation into his absences that he needed to nominate staff who allegedly stood in for him under the so-called informal arrangement over what was a relatively short period of his secondary employment at Shellharbour Hospital. It was unbelievable that he failed to remember some few months later to Mr Clark or alternatively, if that was true, that he was not able to make appropriate enquiries soon afterwards to at least tell Mr Gray, the Acting CEO on 1st February, 2006, which was a crucial interview, with the opportunity to properly answer allegations. He had an obligation to co-operate to the best of his ability which might have ended the investigation if he had nothing to hide, and he fell far short of this. 229 The applicant, in respect to Charges 1 to 4, in choosing not to name or to call evidence from nursing staff, seems to have effectively chose from the beginning to rely upon the shift of onus. This position was even less sustainable when, as indicated earlier, he gave evidence in cross-examination of expecting to have such witnesses called on his behalf. 230 When he did actually nominate such a person (Ms Yule) in respect to Charge No. 1, it backfired on him for the reasons convincingly set out in Ms Anderson's final submissions. He also flagged the likelihood of Ms Gow from the Ambulance Service being called to vouch for his presence on 13th November, whilst in cross-examination with the response to Ms Anderson's query as to whether he intended to call her, "I hope so". 231 In respect of Charge No. 7, the applicant did not produce the computer, from which he claimed the "Hennessy e-mail" dated 5th May, 2004, had originated, which could have proven one way or the other. Neither did his expert computer witness, Mr Daniels, gain access, and as a result, produced a report without it, and the expert witnesses had to be called (including Mr Westward-Hill for the respondent) to address the subject of the authenticity of the headnote version of the e-mail with the wrong date of 6th May, 2004, in a torturous and less certain way. Here again, the applicant effectively relied upon the evidentiary burden residing with the respondent, when the Commission has found separately that the applicant could have produced the computer to settle the question and his failure to do so ended up as a major flaw in his credibility. 232 Understandably, that broad evidentiary stance adopted by the applicant required Ms Anderson to spend a considerable amount of time exploring the issue of the applicant's credibility, especially in connection with the two additional reasons raised in correspondence of May, 2007 outlined earlier, i.e. to do with the alleged concoction of the Hennessy e-mail and possession of the Morphine Register. 233 Ms Hancock's reliance upon the failure of the respondent to interview some eighteen ambulance officers who were apparently on duty in respect of Charges 1 - 4 was not as straightforward as she maintained and was something to be considered in the wider context and circumstances of the case, as dealt with below. 234 There were a whole host of issues successfully identified by Ms Anderson as instances where the applicant had deliberately set out to confuse the respondent throughout the investigation, and even during these proceedings as part of, what Ms Anderson described variously as his modus operandi, or a tendency to use attack as the best form of defence; or setting out to confuse or muddy the waters. Sometimes these were about quite trivial issues, but dealt with convincingly by Ms Anderson throughout her comprehensive submissions. It is appropriate for the Commission then to make determinations in respect of issues raised by Ms Anderson as to the applicant's credibility as holding the key to determination of many issues in this case, where the Commission was asked by Ms Hancock to rely upon his direct evidence, where it was in conflict with other evidence. In respect to Charges 1 - 4: 235 Dealing with a major plank in Ms Hancock's approach in this area, the Commission has found that the failure of Mr Clark to interview any of the so-called eighteen officers to verify Mr McQueeney's presence on the four occasions specified in Charges 1 to 4, was not fatal to the respondent's case. 236 To start with, the applicant could have called those witnesses himself, either during the formal inquiry by Mr Clark or in these proceedings. Realistically though, an employer is in an extremely difficult and even impossible position in taking a direct approach, which would rely upon the word of fellow employees. Either they might quickly club together and close ranks against what they would regard as an intrusion by management (particularly if others are likely to have indulged in similar absences) or alternatively, the risks for any employee giving evidence against another could be profound, if he/she is seen to have "ratted" upon a colleague. In some cases, such a process might serve only to either divide the workforce and/or to isolate and expose the source or sources, which may have given rise to the inquiry in the first place. An employee under investigation by comparison should be able to safely rely upon the honesty of co-workers or if necessary, to summons such evidence to minimise any chance of retaliation by an employer. 237 The applicant was emphatic to Mr Gray on 1st February, 2006, and in these proceedings, on the failure of Mr Clark to take note of his signing on and off times in the Morphine Register. Yet that was shown to be misleading or at least, a "red herring", in the sense of proving nothing of the value contended by Mr McQueeney, for the reasons enunciated by Ms Anderson, that the evidence from the document itself and oral evidence from the likes of Mr Hanna. showed the entries to be mere automatic notations of official roster times and nothing more. This is not to delve at this stage into the more serious mischief involved if the respondent's claims as to the deceitful conduct with the applicant having taken prior possession of the Morphine Register are found proven. 238 On balance, it was an obvious course of action for the applicant to bring whatever nursing staff who allegedly stepped in or worked back for him, as he claimed in evidence to be able to bring. This is particularly so when he passed up the previous opportunity to provide names to Mr Clark, a few months after the event, of those supposedly standing in for him, or, it is worth repeating, to follow up with appropriate enquiries if he genuinely could not remember who stood in for him, which could at worst have been dealt with at the next stage of the inquiry, before the Acting CEO on 1st February, 2006. He was not, after all, working there for very long and the inquiry should have been relatively easy. 239 In the absence of that direct evidence before it, the Commission has had to rely upon the findings as to the reliability of Mr McQueeney's word overall, to be satisfied, or not, as to his direct evidence emphasised by Ms Hancock of coming to informal arrangements to allow for late arrivals or early finishes at the hospital. He was not assisted in that contention by his level of credit, as revealed further into this decision. 240 The evidence from hospital staff brought by the respondent, namely Ms Martin, Ms Bannister and Ms Smythe and the Clark interview with Mr Stanojevic left the Commission with a different emphasis than that interpreted by Ms Hancock. The trend of their evidence was that he would have been there as per the rosters, and that the informal arrangements were unlikely in respect to casuals such as Mr McQueeney and where the hospital relies upon timesheets to pay casuals. Minimum staffing levels, especially at the changeover of shifts, made it unlikely he would not have been there as rostered. The Commission has otherwise not been able to accept the evidence as to such informal arrangements as supporting anything beyond the remote possibility of Mr McQueeney, as a casual, being covered by such arrangements, but which were more common among permanent staff and then by arrangement with the nurse in charge. In the absence of evidence from any staff directly involved, it was too remote a possibility to support his claim, as he told Mr Clark, "I was covered down there" meaning someone substituted for him. The evidence brought by the respondent in this area suggested that it was more likely he would have been discovered and taken off the casual list.

250 Ms Hancock's reliance upon the Morphine Register as a true reflection of the applicant's presence at the handover times, was shown to be unreliable in view of the evidence from Officers, and also from the extract of the Morphine Register itself, which showed that the employees invariably simply signed at the official start or finish time and not at the true time when the Morphine Register is signed. Indeed, the fact that the signing time was automatically stated as shift start/finish times probably meant that the applicant might have been able to sign off for instance at 7.30am from Eloura West Wing at the hospital and to be able to record a 7 o'clock morphine check at the Ambulance Station at 7 o'clock in respect to Charge No. 4, almost with impunity. There were indications canvassed later in this decision that the applicant was aware of the limitations of the Morphine Register to prove anything like what he insisted to Mr Gray, and which was inappropriately repeated in his affidavit filed in these proceedings (Exhibit 5). Charge No. 5 re: 3rd December, 2004 251 Given that there was a concession made by the applicant that he had actually left at 6.35am that morning, the Commission was then required to deal with the submissions of Ms Hancock based on that scenario. This included that because of the shift swap with Officer Plumb, he was effectively officially rostered off at 6.30am, and that because of the lack of clear official policy, it was okay for the applicant to leave in circumstances where he knew that the Ambulance Station would not be covered until 7am and when he was also aware that from 7 am Officer Hanna could not be available. Her reasoning is ill-founded. 252 The Commission has not accepted that Mr McQueeney could validly regard himself as being rostered off at 6.30am. The informal arrangement that he had come to with Officer Plumb and also where his signature had been forged, meant that the shift swap for that half hour was unauthorised. Given that he knew that he had not signed the form, it was not right for him to regard himself as officially rostered off at 6.30am, to be able to proceed to his secondary employment. 253 The evidence of Mr Hanna and Mr Randle and Superintendent Hennessy that the applicant should have remained on duty has to be accepted by the Commission, along with the evidence of Superintendent Hennessy that it was inappropriate and irresponsible for him to have left the Ambulance Station and other evidence that his supervisory position was one that "needed to be filled". There was no need for an official written policy as suggested by Ms Hancock. 254 In the process, the Commission has had regard to the suggestion from the applicant's representative that there could be similar situations involving emergency call-outs where the Ambulance Station was left unattended. That analogy is not valid, when Commission has accepted the distinction made by Ms Anderson, that in those cases, the communications equipment in ambulances would provide some useful substitution, although that situation is not entirely satisfactory. The fact that the applicant occupied a supervisory position is also relevant and was responsible for the distribution of keys to the vehicles. 255 The complaint by Ms Hancock of unequal treatment of Officer Plumb, who apparently was not disciplined for being late, is not comparable, or well grounded. Firstly, he was only ten (10) minutes late by his evidence and his actions were likely to be careless at worst, as opposed to the deliberate act of leaving by Mr McQueeney, especially without knowledge of how long the post would remain empty, with Mr Hanna also absent from 7a.m. 256 The Commission has found that the respondent was entitled to include this Charge No. 5 in its findings as grounds for dismissal.

Charge No. 7: Failure to report criminal charge 260 The consideration of this matter necessarily involved, in the final analysis, an examination of the rival expert evidence of Mr Daniel and Mr Westward-Hill. This was primarily to decide whether the document "B2" of Exhibit 13, finally produced to Mr Rochford at the 31st August, 2006 interview, was the product of human intervention and not a genuine head note/address version of what the applicant claimed to be a copy of the e-mail allegedly sent to Superintendent Hennessy on the 5th May, 2004, ostensibly advising her of the fact that he had been charged with a shoplifting offence. 261 Of lesser significance, but still going to the applicant's credit was that the applicant claimed throughout the investigation and in his interview with Mr Rochford on the 31st August that he had sent the e-mail, and only changed his testimony when it became apparent through the affidavit of Mr Patrick Brady (Exhibit 24) that Superintendent Hennessy could not have received the e-mail because the applicant had incorrectly addressed it. Ms Anderson's contention that this was a change of convenience, was quite possible given the other antics of the applicant over this issue, revealed later in this decision. 262 That said, one would be entitled to expect that he would have taken the opportunity to check the "sent" record on the relevant computer when he was first accused, which would have shown him (if it did exist) that it did not arrive with Superintendent Hennessy. If it was his wife's computer as he later claimed, he lived with her for a significant relevant period/s after all and could have checked it. The fact that other evidence convinced the Commission that he was likely to have been able to produce the computer and avoided the impression of attempting to mislead on the point, is a more profound issue dealt with hereunder. 263 It was all the more surprising that he did not notice that the e-mail failed to surface, when Mr McQueeney had asked Superintendent Hennessy in the supposed e-mail to let him know if there was anything else he needed to do (other than to inform her of that he had been charged) and he did not check his "inbox" e-mails to see if there had been a reply, and in the process, checked the "send" e-mails. This is all the more curious, given that he had allegedly included a paragraph at the end of the supposed e-mail "dobbing in" another officer for apparent paedophile charges, yet didn't seem to follow through, except to later erroneously accuse Superintendent Hennessy of protecting a paedophile during his investigation interview, although later withdrawing such a serious and harmful claim. 264 Accordingly, even given the benefit of the doubt in this area, i.e. that the applicant did not deliberately incorrectly address the e-mail, other major issues still remain over the applicant's statements and behaviour in respect of the e-mail claimed to be sent to Superintendent Hennessy. 265 As it turned out, the most important issue related to the alleged further misconduct in respect of the e-mail brought out in these proceedings by the Crown Solicitor's letter to Mr Lipman of the Health Services Union on the 7th May, 2007, which became Exhibit 37. As outlined at the beginning of this decision, there were two additional areas of misconduct claimed by the respondent as justifying dismissal and related to his alleged possession of the Morphine Register and the e-mail to Superintendent Hennessy set out at the start of this decision. The second, pertaining to the issue of the e-mail, is repeated for convenience as follows: " Subsequent to Mr McQueeney's dismissal, it has become clear that, in or about the period between 31st January, 2006 and 5th September, 2006, Mr McQueeney engaged in misconduct justifying his dismissal in that he falsely claimed that he had, on the 5th May, 2004, attempted to send an e-mail to Superintendent Louise Hennessy at the e-mail address "LHennessy@asnsw.health.gov.au" to advise her, inter alia, that he had been charged with the offence of shoplifting, in circumstances where he knew he had not attempted to send any such e-mail." 266 There was another less serious issue as to the applicant's credibility in this area, in the fact that he deliberately attempted to persuade Mr Rochford that he had already provided a copy of the e-mail to Mr Gray on the 1st February, 2006. It was clear from the evidence that he should have remembered that he had merely shown Mr Gray, the Acting CEO and Ms Ashelford of the Professional Standards Conduct Unit a copy of what he claimed to be the e-mail sent to Superintendent Hennessy, when he had to be persuaded by Mr Morgan, his union representative (and only after the short adjournment with Mr Morgan), to allow the alleged e-mail to be at least viewed. Exhibit 1A shows him later complaining to Mr Morgan that they did not then take a copy, which itself was disingenuous at the time. 267 Immediately following that conference, that copy shown to Mr Gray had "Betadine" spilt over it according to Mr McQueeney, obscuring most of the body of the e-mail. The Commission has not been required to consider the sheer co-incidence of the "Betadine" spillage, which added to the confusion dealing with the matter. 268 Related to that was a matter going to credit, where he continually said to Mr Rochford at the 31st August conference, that it was the first time that he was hearing that the Ambulance Service had not received a legible copy of the e-mail. It occurs to the Commission that he could not have believed this, given the memorable correspondence between himself and Ms Ashelford and Mr Morgan, from the union, (Exhibits 1A & 1B) showing that the service was struggling to obtain a copy without the "Betadine" stain. This tack suggested that the applicant was attempting to confuse the CEO of the Ambulance Service at a time when some frankness was called for at the show cause interview of 31st August, 2007. 269 This charade in the interview with Mr Rochford (Ex. 2 Tab "U") was particularly apparent when he said to Mr Rochford: "I was only asked, I was only told that was the bit apparently that had come out, that you actually had the body, it was the top corner or something like that. So look, if you're asking me to provide you with a copy of that, I can. I have never been asked to, the Ambulance Service has never indicated to me that they didn't receive the copy."

271 The fact that the applicant had changed his story from the fact that the original e-mail was on his personal computer was a problem for his credibility. In his affidavit, paragraph 11, he said "and my personal computer, which had the original e-mail had been in storage and not accessible to retrieve the original e-mail", was later changed in these proceedings to claiming that the problem of retrieval of the original e-mail was that it was on his wife's personal computer (which appears to be a reversion to what he claimed at interview). It is hard to gloss over such a contradiction as a mere inaccuracy or slip of the tongue on such an important point. 272 This change of heart appears to have become entrenched in response to a summons (Exhibit 44) issued by the respondent. All of this area gave every indication that the applicant was putting his employer "through the hoops", so to speak, as an excuse for not making his personal computer available, particularly for use by the experts (particularly for Mr Daniel to prepare his report) to ascertain, once and for all whether or not the original e-mail had been sent, or attempted to be sent to Superintendent Hennessy. It also inspired an understandable lack of confidence about there ever being an e-mail to retrieve. 273 Another issue in respect of the applicant's credibility in his handling of the e-mail issue was made apparent from the transcript of the 22nd February, 2007, page 2, where Ms Anderson in cross-examination took the applicant to the document marked "B2" of Exhibit 13, which was attached to the forensic report prepared by Mr Westward-Hill. This document was merely an extract and was referred to earlier as the "head note" or address part of the e-mail produced during the interview with Mr Rochford on the 31st August, 2006, and, in the Commission's view, surprisingly by any standard, did not contain the body of the e-mail. "B1" of Exhibit 13 was the full copy of the supposed e-mail sent to Mr Morgan by the applicant on the 22nd January, 2007. 274 In the transcript of proceedings on the 22nd February, 2007, the head note version of the e-mail "B2" was shown to the applicant with the question from Ms Anderson: "Q. It's merely the address part, and you remember giving this document to Mr Rochford? A. Most certainly not. Q. You don't remember giving it to Mr Rochford? A. Not a document identical to that, no, I don't recall that." 275 The applicant continued to deny that Exhibit 13 "B2" extract was the document he gave to Mr Rochford on 31st August, 2006, with the answer, "as I said, I don't believe it is". 276 Eventually the applicant had conceded that "B2" was the document he handed to Mr Rochford, which meant, as Ms Anderson observed, that Mr Rochford did not have to be called as a witness. However, the importance of that exchange to the Commission was that the applicant prevaricated on a basic issue, when the likelihood of him not remembering the document was remote, especially given the brevity of detail and uniqueness of the document. Moreover, it was very likely that (from other evidence below) his motive in doing so, was, as suggested by Ms Anderson, that he wished to disown the document "B2" of Ex. 13, because he was aware that he had made a mistake in the detail of the document, which showed it was very likely contrived.

279 It is appropriate to deal further here with a point raised above, indicating a less than straight forward approach by Mr McQueeney, in that it is inconceivable that in the situation where he had the opportunity to convince Mr Rochford of his trustworthiness on this issue, he chose to provide only what can be described as a tantalising extract of the e-mail after such an extended time (and especially when Mr Gray and Ms Ashelford had such difficulty even sighting the full text of the document at the 1st February, 2006 interview). Mr Lipman at the 31st August, 2006 conference attempted to justify the shortened version on the basis that it showed the address and who it was addressed to. Without reflecting on Mr Lipman's motives, clearly the applicant, as the intelligent person observed through proceedings, had decided for unconvincing reasons not to provide the full document, despite the querulous reaction of Mr Rochford, and despite knowing that he had not provided a proper copy to Mr Gray when he was acting CEO on the 1st February, 2006 at the earlier interview and feigning that he had not previously heard that the employer still did not have a legible copy. Indeed, the transcript of the Gray interview on the 1st February, 2006 shows (as earlier mentioned) that Mr Morgan had exhorted the applicant to provide a copy to Mr Gray and after a short adjournment, it was quite clear that Mr Gray (and Ms Ashelford), whilst then being allowed to sight the document, was not actually given a copy and was not able, to Ms Anderson's regret, to take a copy at the time. 280 The later efforts of Ms Ashelford (from the Professional Standards Division), who was also present at that 1st February, 2006 interview, to procure a copy, were met with a less than co-operative reaction from the applicant who, as already mentioned, was shown on the transcript as being reluctant to even show the document to Mr Gray and Ms Ashelford, and only did so at the urging of his union representative. Yet, as also worth repeating, he complained to Mr Morgan in an exchange of e-mails as to why they had not taken a copy at the time. This (when he knew he had resisted giving them a copy), was in itself, another, albeit, minor sign of the applicant's less than honest dealings and blocking efforts by making things as difficult as possible for the enquiry into his conduct, which should have been made much simpler if he had nothing to hide. These are matters directly relevant to whether the employer's later decision to dismiss was unfair. The employer was entitled to assess his reliability of his word overall, just as the Commission has been required to undertake that task.

281 Another small curiosity was that the applicant in his banter with Mr Rochford on the 31st August at page 14 of the transcript of that meeting, suggested to Mr Rochford that the Ambulance Service had a "different piece of paper to a piece of paper you have somewhere stashed away" and further into that exchange said to Mr Rochford "if the Ambulance Service is saying they didn't receive a document in totality, tell me please and give me the opportunity to fix it". This was also disingenuous and is now seen clearly a bluff on the applicant's part towards Mr Rochford and again the Commission is forced to stress how unimpressed it is with the lack of co-operation shown at this vital "show cause" stage, when he had the opportunity to convince his employer not to dismiss him on the basis that he could be trusted to co-operate. He did not, of course, even provide the copy before his dismissal one week later, despite the above pleading for him to be allowed to do so on 31st August, 2006 and not until these proceedings. 282 It was not much further into that interview with Mr Rochford that the applicant indicated when pressed by Mr Rochford for a clear copy of the e-mail that he made the statement in answer to Mr Rochford's request for an early copy of the supposed e-mail (Rochford), "can you do it any quicker than that?" by saying (McQueeney) "I cannot. It's not held on my computer, it's held on my wife's computer". Yet, as already indicated at paragraph 11 of his affidavit Exhibit 5, he made the statement "a number of documents have been misplaced and my personal computer which has the original e-mail has been in storage and not accessible to retrieve the original e-mail" (emphasis added). As already recorded, that contradictory claim as to why he could not produce the supposed original document or even the computer itself provided one of the clearest examples of the poor credibility of the applicant. 283 Ms Anderson provided other examples of the applicant's transcripted exchange with Mr Rochford over the issue of the e-mail and suggested to the Commission that "he enjoys the game". She quoted page 17 of the transcript "if that e-mail address had been correct, so that document was given and what I'm saying in fairness it's the end of August, how come I'm now just finding out that a document that I sent in February you didn't get in totality, it's such a crucial document". Rochford, "because it was the one you gave us", McQueeney, "and I gave you the whole thing". Again this is a further example where the applicant appears to be attempting to confuse Mr Rochford when quite plainly he knew that the documents supplied in February, 2006 at the request of Ms Ashelford was the document blighted by the "Betadine" stain and largely unreadable. 284 Ms Anderson pointed out that it was a further three months between when he promised Mr Rochford on 31st August, 2006 (mentioned above) to provide a clean copy of the e-mail, to when he attached it to his affidavit and signed on the 10th December, 2006. 285 A general finding of the Commission covering this area of the evidence, persuaded by Ms Anderson's submissions, is that the applicant has most likely deliberately frustrated every attempt by the respondent to procure the computer itself, which might have clarified everything in respect to the "Hennessy e-mail". The applicant had until the start of proceedings in February this year to produce the computer and until the end of the evidence in July this year. 286 Relevant to that, was the point accentuated by Ms Anderson, that in his expert evidence Mr Daniel concluded that he was unable to make certain conclusions without access to the originating computer. This meant, as already noted, that Mr McQueeney allowed his expert witness to produce a report without access to the computer, and which he inconsistently claimed belonged to his wife, also covered earlier. 287 The applicant's arguments of not providing the computer were unconvincing, as revealed by reference to transcript. 288 The Commission relies in this regard upon the transcript of evidence where the applicant on the 14th March was taken to the significant fact that Mr McQueeney's wife had written to the Minister of Health on the 28th February, 2007, at the beginning of these proceedings (see Exhibit 20) and complained to the Minister about their length and cost, inter alia, saying that the money would be better spend on the ambulance service. The e-mail in question showed quite a defensive stance on behalf of her husband, as well as a fairly aggressive line in respect of what she regarded as the waste of taxpayers money. In that correspondence she showed a caring attitude to her husband's predicament and it seems a small step (over an extended period) for her to release her computer to clear him of the allegation. She was shown as being at the same Fitzroy Falls address of the applicant at the time. 289 In the next day's transcript of the 15th March, the applicant had claimed that when he had contacted his wife, as he had undertaken to do, to procure the personal computer or laptop for examination, she had hung up on him. The applicant gave a totally unconvincing response when Ms Anderson put to him that it was difficult to believe that the same wife who had written the vigorous e-mail to the Minister not long before was now failing to co-operate in respect of the matter. 290 In their final submissions both Ms Hancock and Ms Anderson attempted to deal concisely with the reports of Mr Daniel and Mr Westward-Hill in respect of their technical expertise. Both expert witnesses focused largely upon testifying as to whether or not the e-mail "B2" of Exhibit 13 was a genuine copy of the original e-mail, it being an entirely different style and content to the other copy supplied by the applicant with his affidavit at Annexure 6/6 and "B1" of Exhibit 13, obtained under summons. 291 Attention was on the fact (earlier highlighted) that "B2" carried a date of the 6th May, 2004, whereas the supposed original copy supplied with the applicant's affidavit had a date of the 5th May, 2004. 292 Also relevant to the Commission's consideration in the submissions of both Counsel was the argument as to which of the expert witnesses should be more persuasive, particularly as this became an issue between Counsel. 293 The Commission has been impressed with the fact that Mr Westward-Hill had a much greater experience of undertaking forensic examination of documents than Mr Daniel. Also, the Commission noted that, when under pressure, Mr Daniel reacted in a manner which was something less than what could be expected of an impartial professional witness and behaved too much in the style of an advocate in the manner of his responses, when pressed. 294 The Commission has accepted the evidence of Mr Westward-Hill that the precise twenty-four hour difference in the timing of the two e-mails could not be explained, either by daylight saving or by geographical configuration, as there is no time scale anywhere in the world which is precisely twenty-four hours behind Australia, given that the hours, minutes and seconds were the same. 295 The Commission has noted the evidence of both experts and assessed the submissions of both Counsel in this area, but has been persuaded by the evidence of Mr Westward-Hill to the extent that it conflicted with Mr Daniel.

296 The Commission has accepted conclusively the remarks in Mr Westward-Hill's report where he said at paragraph 24, "based upon and limited to visual examination of the e-mail printouts "B1" and "B2" there is evidence to suggest that one or both e-mails have undergone some form of alteration prior to being sent". Mr Westward-Hill went on to suggest quite clearly there had been manipulation of the e-mails. 297 It was further pointed out by Ms Anderson that Mr Daniel's evidence actually supported the proposition that "B2" is a concoction, having said in his report that, without first conducting some testing of the actual computer itself, he was unable to comment on certain aspects. However, he was able to say that "B2" is a screen capture and the person who printed it off chose not to print off the whole of the e-mail. The Commission has little difficulty in accepting that the person who printed it off would have been Mr McQueeney. 298 While Mr Daniel concluded that he was not able to comment without further testing of whether or not it was necessary for Mr McQueeney to have sent it to another hotmail account, Mr Westward-Hill gave evidence that it was not necessary for the applicant to have sent the e-mail allegedly sent to him by his wife to another hotmail account to enable him to print the e-mail off as he maintained. This suggested an attempt at muddying the waters, so to speak, but that aspect is not crucial to the Commission's other findings. 299 Whilst Ms Anderson's submission to the Commission that the applicant had simply sent his e-mail to his own hotmail account in an attempt to obscure the trail or create red herrings and along with sending the "Betadine" damaged copy, his attempts to get back "B2" from Mr Rochford (detailed earlier) were persuasive evidence that the applicant had manipulated the e-mail "B2", especially when he never provided the full copy as he offered to do during the final interchange with Mr Rochford on 31st August, 2006. 300 Ms Anderson validly also pointed out that Mr Daniel gave evidence that no offer was made to provide the sending computer for him to be able to conduct a proper examination of the sending computer, and given that the applicant gave evidence on the 14th March in proceedings that his wife was residing at the same address as himself, the failure to provide the computer was a significant matter in the Commission's eyes. Ms Anderson suggested that the failure to provide the sending computer to either Mr Westward-Hill or Mr Daniel, screams out as a Jones and Dunkel matter.

301 It was of some significance, as pointed out by Ms Anderson, that Mr Daniel himself, as an expert witness bought by the union in support of the applicant's character, conceded that the difference in the e-mails could only have been achieved by human manipulation. 302 The Commission has been comfortable in adopting the phrase used by Ms Anderson in this area with reference to relevant caselaw and as a long established principle in the law, that it is "glaringly improbable" that he could not have supplied his computer, which he now says is in the possession of his wife or to have made the same available to Mr Daniel for proper examination, and that his failure to present such evidence has to be taken as a Jones and Dunkel point. 303 The reliable evidence of Mr Westward-Hill also points to the fact that "B2" could have only been arrived at by human manipulation and the only person with a vested interest in doing so was Mr McQueeney himself. 304 Accordingly, the additional misconduct contained within the letter of the Crown Solicitors Office of the 7th May, 2007 as set out earlier has been found to be established, that is, that Mr McQueeney engaged in conduct justifying his dismissal in falsely claiming that he had on the 5th May, 2004, attempted to send an e-mail to Superintendent Louise Hennessy advising of the criminal charge in circumstances where he knew he had not attempted to send such an e-mail. 305 That additional misconduct is found to be far more serious in the mischief it created and as an indication of an untrustworthy employee in an area of public employment where honesty is an essential requirement. In this regard the Commission notes with approval the relevance of caselaw, namely, Donlan and Hanson Vs Commissioner of Police and Hardcastle Vs Commissioner of Police relied upon by the respondent. The Morphine Register 306 The second major area in respect of the applicant's credibility surrounded the claim by the applicant that the employer should have produced the Morphine Register, which would have proved his attendance at the Ambulance Station in connection with charges 1 -4. 307 Like the matter of the e-mail addressed to Superintendent Hennessy dealt with above, the applicant's conduct in respect of the Morphine Register was the subject of a further matter of misconduct as contained in the letter of the Crown Solicitor of the 7th May, 2007 (Exhibit 37) set out at the beginning of this decision, but repeated for convenience as follows: "Subsequent to Mr McQueeney's dismissal it has become clear that at some time during the period between February, 2006 and 28th February, 2007, Mr McQueeney engaged in conduct justifying his dismissal in that he improperly retained possession of, or control over, the Wollongong Ambulance Station Morphine Register that was in use during the period November - December, 2004." 308 This required a close examination of all aspects, beginning with the finding that the applicant was not genuine in his exhortations to the employer in respect of the Morphine Register and which exposed the applicant's credit on an issue still promoted by him into these proceedings, as set out earlier in relation to his affidavit, Exhibit 5. 309 On another finding to the detriment of the applicant's credit, Mr McQueeney erroneously told Mr Gray (Acting CEO) on the 1st February, 2006 that he had told Mr Clark at the 8th April, 2005 interview to refer to the Morphine Register, which would prove his attendance by showing the true start and finish times. Ms Anderson has satisfied the Commission by reference to relevant transcript and other records in respect of the Clark inquiry, that he made very limited reference to the Morphine Register and in an entirely different context. This claim was likely to have been intended to mislead Mr Gray. 310 His bold statement to Mr Gray on 1st February, 2006 to the effect that signatures on the Morphine Register would show the actual precise start and finish times, saying words to the effect that, "those guys are pedantic about that", was shown by the evidence not only to be wrong, but to be known to Mr McQueeney to be wrong. The evidence clearly showed there was an automatic notation of the start and finish times and not the actual times that the drug count was undertaken. Ms Hancock's criticism of the respondent over the register through the instructions she received is wide of the mark for the same reason.

311 One of the matters going to the applicant's credit in respect of his dealings with the Morphine Register was that he claimed to Mr Gray that at the time he made his application under the Freedom of Information (FOI) Legislation to obtain a copy of the register, which was around November, 2005, he had found out that the register was there at the Ambulance Station. Evidence made clear that it disappeared between 1st and 15th February, 2005, which showed he was untruthful in saying that to the Acting CEO, as it is improbable that he was misinformed to that effect. His failure on more than one occasion to name his supposed informants, weakened his standing on such claims. 312 It is also very likely that Mr McQueeney made what now appears as one of his multiple diversionary tactics when making an F.O.I. application for the Register some nine months after he could be expected to apply, and especially since it has become clear that he knew how deficient the Morphine Register was to prove anything of note, as covered earlier. 313 His goading of Mr Gray in respect of the Register was also therefore disingenuous. It is improbable that Mr Ryan, the union delegate, did not tell Mr McQueeney that he knew the Register was missing since February, the previous year. Mr Ryan being the author of a report about its whereabouts at the time and who travelled with the applicant to, and was present at, the interview with Mr Clark. 314 Accordingly, even in his affidavits signed on the 10th December, 2006 and filed at the Commission on the 23rd January, 2007, the applicant at paragraph 15 persisted with the myth that the register actually accurately portrays the actual time two officers are required to sign as the outgoing and incoming officer. In fact, the evidence, as already mentioned, showed that officers invariably signed on and off at the time at the start and end of the shift, which might be 7am or 5pm and contrary to what the applicant also told Mr Gray, does not show the various times suggested by him. It was true, as pointed out by Ms Anderson and even in conversation with Mr Gray, the applicant appeared to have a bet each way when he also mentioned in the style of a "throw away line" at the end of that part of the conversation, the true position, that people might sign at the end of shift time regardless of what time it really was - but having been previously adamant as to the former proposition. 315 At paragraph 16 of the applicant's affidavit Exhibit 5, his statement that he was able to show photocopied extracts of the Morphine Register that proved his presence and that the Service at no time challenged the authenticity and accuracy of those extracts (attachment 3 to his statement) is now seen by the Commission as another attempt to mislead. The situation has to be looked at in the context that the applicant refused to allow Mr Rochford to photocopy the extracts at a time of his show cause interview, and that his motivation in continuing with the charade about the Register at that late stage, could only have been to add fuel to the fire of confusion, which he sought to generate only a variety of fronts.

316 Worse still, specific reference to Mr McQueeney's claims show his aggressive stance in respect of the Morphine Register is reflected in paragraphs 13 - 16 of his affidavit (Exhibit 2). Therein, he claimed that he had told the Service during the course of the investigation that an inspection of the Register would demonstrate that he was present at the hand-over to incoming and outgoing Station Officers; that at all times the Service had refused or was unwilling to consult the Register despite his frequent requests, including making an application under the FOI Legislation and had refused or were unwilling to provide copies of the relevant pages to him; and that he was able on the 31st August, 2006, to show Mr Rochford, the CEO, photocopies sent to him of the relevant pages (which he attached at Annexure 3 to his affidavit Exhibit 5). All of this has now been revealed as so much humbug for the reasons set out here, and pressed in Ms Anderson's submissions. 317 The respondent, for its part, through Ms Anderson, pursued the applicant in respect of his claims about the Morphine Register and the matters revealed through that enquiry, which included an expert report from Dr. Rachel Novotny, a Handwriting and Questionable Document expert. Her two reports were at Exhibit 21 and Exhibit 42, the latter being a supplementary report. 318 There is no need for the Commission to repeat the summary of the reasonably complicated evidence as to the proof that the Morphine Register was under the applicant's control the whole time he was making false representations about it, as it was conclusively set out in Ms Anderson's submissions earlier and which the Commission has been comfortable in accepting as the true position. 319 Briefly stated, the Novotny reports, backed up by her oral evidence, were convincing evidence to the Commission of the fact that the copies of the register supplied by the applicant to the union and during proceedings, actually came about by two photocopying events of the original register, and where the applicant and his union advocate, Mr Morgan, gave clear evidence of there only being one set of originals - i.e. Annexure A3 of Ms Novotny's report. This was borne out by the fact that the Annexure A3 original pages said by the applicant in his cross-examination to be the identical to the copies shown to Mr Rochford at the interview on the 31st August.

320 Turning to a different subject; in respect to the respondent's reliance upon an earlier formal reprimand (set out in the early pages of this decision), the Commission ruled that the respondent was entitled to include that warning/ reprimand in relation to his conduct towards a police investigation, within his letter of dismissal. This resulted in the applicant contesting that matter and this required evidence to be brought from two young police officers employed at the time, and for them to be cross-examined, inter alia, upon their contemporaneous reports as to Mr McQueeney's behaviour and statements towards them. 321 The applicant's efforts to show that the Service had been in error on a variety of fronts as to the reliance on the Willis Report of the incident came to naught, and in fact, resulted in Ms Anderson being able to identify further credit issues with Mr McQueeney's testimony beyond those nominated in the report at the time. One concerned his contradictory evidence as to whether he wore an ear-ring during the period of the accident over which the police were pursuing him for a statement. It was shown that he changed his testimony from telling the investigator, Mr Willis, at the time that he did wear an earring at the time of the accident in 2004, to denying that before the Commission. 322 Ms Anderson asked the Commission to remember the context in which the applicant was shown by the original investigation (and confirmed before the Commission) to have deliberately delayed and frustrated the attempts by junior police to obtain a statement from him, as a person suspected as leaving the scene of the accident, within the six month limited prosecution period. The period expired before the statement could be maintained. 323 The problem for the applicant was that some of the matters giving rise to the reprimand could not be challenged by him, as he did not require the police personnel to be called and those former police officers that were challenged by him, under cross-examination by the union, came across as entirely reliable witnesses i.e. Ms Roberts and Mr Leighton-Daly being observed to be measured and earnest in their responses, and conceding things where appropriate. 324 The result of challenging many of the matters involved in that investigation was, inter alia, that the applicant was confirmed as having threatened Constable Roberts that he would have a friend who was a more senior police officer "fix her" and called her "girlie" in the process of offering that threat. 325 The evidence also confirmed that the applicant claimed to be an "Inspector" with the intention of being understood to mean with the Ambulance Service, and designed to intimidate and deflect inexperienced police enquirers. The distinction sought to be drawn by Ms Hancock that he did not say he was an Inspector with the Ambulance Service was, with respect, clutching at straws, when only one meaning could be intended and understood.

He also attempted to mislead the respondent's investigator at the time when making what is now seen as the ridiculous claim that Constable Brown offered to draft a statement for him to sign, for the reasons outlined by Ms Anderson, along the lines that it would be an absurd proposition that she, who had had such difficulty dealing with him, would volunteer such an unconventional approach . 326 I have been unable to agree with Ms Hancock's submission that Police Chief Inspector Robinson's comment to the applicant that he considered that there was a communication breakdown was indicative that the police did not regard the situation as problematical for Mr McQueeney, and especially when he later attended a joint conference with senior police. Ms Anderson's reading of the situation that Superintendent Robinson had only heard the applicant's version and was likely to have merely being diplomatic at that initial stage, is the correct assessment. She had reported his threat immediately to Chief Inspector McDonald, making it all the more believable. 327 His call to Chief Inspector Robinson of the N.S.W. Police after his threat to Constable Roberts, complaining about police harassment was therefore little short of audacious and now confirmed as an attempt to divert attention away from his unco-operative behaviour and attitude to the young police woman who was pressing him for a statement. This was an occasion where Ms Anderson's oft repeated claim springs to mind that the applicant's modus operandi was summed up in the saying "when you're down - attack". 328 The Commission has had full regard to the submissions of both Counsel on this matter and, not been able to find fault with the matters put forward by Ms Anderson, has had to conclude that all told, the applicant came off second best when it came to his challenge to the reprimand, which it turns out well and truly deserved and in the process he was shown to be an even less reliable witness. Other Matters of Evidence 329 There were a host of alleged minor credibility flaws in the applicant's testimony raised throughout this case which are worthy of some determination, although there is no necessity to rely upon them to support the respondent's case beyond the point reached at this stage in the decision. They are listed for more abundant caution. 330 They include the equivocation displayed by the applicant in respect to his wife's address early in evidence, which I was asked to interpret as an attempt to obscure his capacity to procure the promised copy of the alleged e-mail to Superintendent Hennessy or even the computer which might have resolved matters either way in respect to Charge No. 7. Whilst the applicant did appear evasive and unnecessarily in denial initially, his change of heart when prompted by the Commission, raised doubts as to the reason for his initial negative reaction. 331 There was the description of himself as a "Paramedic", shown to be incorrect, which appeared to be an attempt to bolster his image, but whilst this evidence was misleading, it was relatively trivial. 332 The applicant claimed to the formal inquiry at one point on transcript that he had two witnesses to his claim of being assaulted by Officer Morrow, which he claimed led to post traumatic stress disorder, and then causing him to exceed the number of shifts allowed in his secondary employment. That last claim is likely to be a fantasy, especially that there was no medical evidence of post traumatic stress disorder suffered by him. There was also only one actual witness (not two) who claimed to have witnessed the alleged assault by Mr Morrow, but who was not called to give evidence to support his claim. His complaint against the Service that they should have investigated the incident, despite the police declining to take up the matter, raised during the inquiry, appeared to be more of a distraction from the issues being canvassed in relation to the charges being investigated. The employer at that stage was perhaps entitled to be somewhat sceptical as to the genuineness of his claims. 333 The attack upon Mr Clark's alleged inappropriate calling him by his father's name (who Mr Clark knew) has been found to be trivial in the extreme and an irresponsible distraction. Because of this, it was probably also an exaggeration for him to have claimed at the formal interview that he was forced to take medication as a result of Mr Clark supposedly blowing pipe smoke over him. Nothing was said about the matter on the tapes of the interview heard by the Commission and it is difficult to accept that someone as reactive and assertive as Mr McQueeney would have allowed that to happen. 334 His complaint at interview of the alleged bullying by Superintendent Hennessy in the end appeared to be yet another effort at shifting the focus away from the inquiry. The examples he included, related to what appeared to be very mundane matters and her evidence of the relationship with him was surprisingly generous, despite being put to her in the context of questions as to the practicality of reinstatement. Superintendent Hennessy came across in the witness stand as a person of integrity who was unlikely to abuse her authority at other's expense. The Commission was left unimpressed with that accusation to say the least, but his accusation of her protection of an alleged paedophile canvassed by Ms Anderson was much more mischievous, even though he later withdrew it. 335 Other accusations against persons who might have affected the inquiry outcome have not been able to be taken seriously in view of the number of occasions where the applicant has been found to have invented matters. One such instance was his sudden accusation on the record during the interview with Mr Willis that Mr Willis' facial expressions were intimidating him, although the Commission does not go so far as to find the more sinister motive of attempting to play games and erroneously create some non-existent intimidation on the record, as the matter was not sufficiently proven either way. 336 His initial response to the summons for a copy of the Morphine Register, that he did not have it any longer, was corrected when he eventually produced Annexure 3 to his affidavit Exhibit 5 and need not be taken as a serious matter against his credit. 337 On a separate matter raised by Ms Hancock, given the applicant's behaviour during the various interviews as part of the formal inquiry, it is unsurprising that his employer apparently did not facilitate the awarding of the National Medal, but here too there is a lack of clear inference available. 338 Apart from the specific areas of a lack of credibility successfully targeted by Ms Anderson dealt with earlier, the applicant also suffered from a general tendency to repeatedly jump in with the sweeping phases in his answers, which usually contained the word "absolutely", where in most instances, it was readily apparent that the situation was anything but absolute. His written reply to the CEO, undated, but received on 9th May, 2006, was another illustration of the applicant's general style which could be loosely described as bluffing and deliberately inaccurate and full of exaggerated phrases, such as the repeated use throughout of words to the effect "I provided verifiable evidence". 339 Those general observations of the applicant, whilst they are not hard evidence of a lack of credit, went to completing the total picture of the applicant as an unimpressive witness. 340 For the Commission to adopt the argument earnestly advanced by Ms Hancock, which sought to relegate the evidence relied upon by the respondent to the category of unreliable inference, and relying upon the shift of onus in misconduct cases, would in this instance be a triumph of form over substance. The Briginshaw standard should not be stretched to ignore the practical indications of proof on the civil standard. 341 The evidence in this case relied upon by the respondent went beyond indirect inferences, inexact proofs or indefinite testimony as cautioned against in the caselaw relied upon by Ms Hancock (See NSW Nurses Association Vs Booroongen Djugun Aboriginal Corporation). 342 In that process the Commission has been additionally persuaded by the numerous areas identified of where the applicant's poor credibility was exposed and in other instances where the applicant was shown to launch a counter complaint, which resulted in delays to the investigation which he then complained about. SUMMARY 343 Mr McQueeney's failure to co-operate with the various stages of the extended enquiry into the seven charges, inclusive of his absences from Wollongong Ambulance Station was a mark against him. The Commission has determined that the applicant either made a conscious decision, for whatever reason, not to call witnesses who he claimed he could bring and who might have successfully challenged charges 1 to 4, or because they would not have assisted him. This was shown to be an over-reliance upon the shift of onus in this case of misconduct . 344 The approach has been found to be unacceptable in the circumstances of this case. The doubts as to his claims of having people step in to cover his early departures or late arrivals at the hospital were reinforced by the flawed attempt to nominate Ms Margaret Yule as such a hospital staff member, who filled in for him in relation to Charge No. 1. That only confirmed for the Commission that he was not at work with the Ambulance Service on 13th November, 2004, for a significant minimum two and a half hour period. Together with other indications, this left the Commission unable to rely upon his word in respect of Charges 2, 3 and 4, although these were for lesser periods of absences and not as conclusive as Charge 1. Other evidence was against the likelihood of Mr McQueeney, as a casual, having alternative arrangements with other I.A.H.S. staff to leave early or arrive late as he claimed in those first four charges. 345 The applicant was also found to have deserved to have Charge No. 5 included for the reasons earlier highlighted, when he should not have absented himself, to go to his secondary employment. 346 Charge No. 6, in relation to the excess secondary employment shifts, although less serious on its own, was understandably included in view of Charges 1 to 5, and has been found to be sustained. 347 Charge No. 7, in respect to the "Hennessy e-mail" about his criminal charge, has been sustained in the Commission's view for the broad range of reasons expanded upon under the foregoing CONSIDERATION section of this decision. 348 However, the e-mail matter was the subject of expert evidence, which on its own, was sufficient proof of concoction, which could only have been by the applicant. 349 There were other indications of cover up and outright deceit in respect of the e-mail elucidated upon earlier, beginning with his antics in failing to produce a proper copy of the e-mail and with the change of story by Mr McQueeney as to why he did not have ready access to the computer to obtain a copy of the alleged e-mail. There were a series of credit issues and curious behaviour surrounding the e-mail issue, which have been canvassed earlier, sufficient to confirm that on the balance of probabilities, the applicant most likely deliberately did not advise Superintendent Hennessy of the criminal charges. Much more seriously, he followed a dishonest path of deception with investigators, including the CEO of the Ambulance Service, which was exposed for what it was and these actions became more deserving of dismissal than the original charge of failing to advise Superintendent Hennessy of the criminal charge. 350 In that connection he was found to have been the only person with an interest in creating the false e-mail, as established through other expert evidence and reliably outlined by Ms Anderson in her final submissions.

355 The Commission has also commented adversely upon the applicant's challenge to the earlier formal reprimand he received in connection with his attempts to frustrate police enquiries as to a person seen to be leaving the scene of a motor vehicle accident in Pitt Street, Sydney on 2004 and in the process, being found to have threatened a junior police officer. More importantly perhaps, his credit was again exposed on other issues in this area highlighted earlier. 356 The Commission has to observe that it is arguable that an employee of such lengthy employment may not have been dismissed for the original seven (7) charges, had he properly co-operated in the extensive formal enquiries launched into his behaviour. If he had pleaded extenuating circumstances, some of those matters may have been established and others may have perhaps been seen as surrounded by special considerations deserving of a less serious outcome for Mr McQueeney, in view of his length of service. 357 The situation that developed however, was that the applicant was shown to have gone beyond putting his employer to the absolute test on almost every front, but to no avail and to have been widely dishonest in the process. 358 The evidence satisfied the Commission beyond mere inference, that all charges were established to the Commission's satisfaction, with some obviously more serious than others. 359 In addition, the extra matters raised during proceedings as grounds for dismissal, concerning the more serious conduct of the illicit possession of the Morphine Register and the fabrication of an e-mail to Superintendent Hennessy, were also established to the Commission's reasonable satisfaction, on the balance of probabilities, as being the applicant's handiwork. 360 The Commission was left with the distinct impression that on a number of other occasions the applicant sought to make inaccurate sweeping claims often against others, who might make decisions affecting him, such as Mr Clark, and Superintendent Hennessy, and to make mountains out of molehills, so to speak, for whatever reasons, but which need not be repeated here, given most have been at least touched upon.

361 However, if I am wrong on my acceptance of the level of proof on any of the matters and including the two additional matters brought forward during proceedings, the applicant in my view should still not be deserving of the primary remedy of reinstatement despite his long period of service. 362 There is no doubt in the considered view of the Commission that the conduct of Mr McQueeney on a variety of fronts involved "incompatibility, conflict, or impediment, or was destructive of confidence", and that there was "an actual repugnance between his acts and his employment relationship" in terms of the decision relied upon by Ms Anderson in Blyth Chemical Vs Busnell, High Court, Dixon and McTeirman JJ.. 363 Even if the Commission has gone too far in accepting that the shift of onus has successfully been discharged in all the matters for which Mr McQueeney was found by his employer of misconducting himself, there remains sufficient serious flaws in the applicant's behaviour towards superior officers, which I believe are destructive of the employment contractual relationship. 364 These were shown to be profound enough to make it impracticable to reinstate or re-employ the applicant, even if the Commission should somehow have intervened. In most of these issues aired by Ms Anderson, the Commission has not been able to disagree with her to any extent. They include the instances of where the applicant's credibility was found to be unsatisfactory as identified throughout this decision, but also went to the pattern of behaviour of the applicant in responding in the manner he did to the senior officers interviewing him to the reasonable satisfaction of the Commission (Briginshaw and Briginshaw, Dixon J @ pages 361-363). 365 Without being too repetitive of ground already covered in this decision, it bears some emphasis that the applicant's failure to properly co-operate in the provision of a proper copy of the "Hennessy" e-mail and the refusal to provide a copy of the extract of the Morphine Register on their own were sufficiently serious instances of where the applicant squandered his chances of having his employer deal with at least some of the charges as deserving some penalty short of dismissal, having regard to his eighteen (18) years service. 366 The Commission sees no reason to find the applicant's dismissal as being either harsh, unjust or unreasonable in the terms of Chapter 2 Part vi of the Act. 367 The application is accordingly dismissed. J P Murphy Commissioner