Industrial Relations Secretary v Fraser

consideration

1. It is with this background, and in these circumstances, that the Full Bench shall now determine whether or not the dismissal of the respondent was harsh, unreasonable or unjust.

Relevant principles

1. In Fraser (No 1) at [210], the Full Bench alluded to the judgment in Vouden v Commissioner of Police NSW Police Force [2014] NSWIRComm 25 at [480] and [610].
2. The appellant encouraged adoption of that judgment noting that the relevant principles stated therein represented an adoption of the principles governing the adjudication of applications relying upon the tripartite factors under s 84 of the Act (namely, whether the dismissal was harsh, unreasonable or unjust), set out in Lawrance v Commissioner of Police [2010] NSWIRComm 149; (2010) 199 IR 139 at [19] to [26] ('Lawrance (No 1)'). The appellant also contended that, in reaching a final decision, the Full Bench was required to consider separately the possibility that the dismissal might be 'harsh' although not unreasonable or unjust: Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465. The appellant did not demur from these principles but also referred to the Full Bench judgment in Department of Health v Perihan Kaplan [2010] NSWIRComm 65 at [27] to [29]. That judgment was referred to in the aforementioned statement of principles in Vouden.
3. We adopt the statement of principles in Vouden and Kaplan and, for convenience, shall set out the relevant passages of those judgments in order to reiterate some basic principles in this respect.
4. In Kaplan, the Full Bench stated (at [27] to [29]): 27 The difficulty with this approach, as opposed to one which would have the nature of an employee's misconduct weighed against mitigating factors to determine, inter alia, whether a dismissal was harsh, is that it stands in the face of the statutory scheme which requires the Commission to consider whether the dismissal was harsh, unreasonable or unjust. There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 at [99] ('Loty'), that the exercise of the Commission's powers in relation to unfair dismissals (now found in Part 6 of Ch 2 of the Act) requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" (Loty at 99). In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". To similar effect, a Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [71] ('Little') stated: The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate "justification" in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act. 28 This conclusion must also follow from the very meaning of the concept of "harshness" within s 84(1). The words "harsh, unreasonable or unjust" in s 84(1) are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at [467] ("Byrne"), per McHugh and Gummow JJ, (applying Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at [28]). The appellant's acceptance that the expression 'harsh' would bear the meaning "disproportionate to the gravity of the misconduct" (see Byrne at [465]), necessarily brings with it the conclusion that a breach of an employment contract or even a repudiation of it will not be determinative of a finding under s 84(1) of the Act as to whether the dismissal was harsh. So, too, does an acceptance (see Byrne at 465) that the personal circumstances of a dismissed employee may be also brought into account. 29 We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows: In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence.
5. The judgment in Vouden distilled the relevant principles as to the tripartite factors in the context of proceedings under s 181D of the Police Act 1990. However, the principles stated in [480] of that judgment are directly applicable to proceedings under s 84 of the Act. We extract those principles below as follows: Even though Lawrance (No1) concerned an application for review grounded solely on the basis that the removal was harsh, that decision nonetheless stated the relevant principles governing the adjudication of applications in the present matter (relying on tripartite factors). The relevant paragraphs from the decision are set out below: 19 The task of the Commission in undertaking a review under s 181E (1) is now well established as being constituted by the Commission making "a fresh and independent review decision itself, based on the material before the Commissioner as well as any new evidence admitted": Hosemans v Commissioner of Police (No 2) (2005) 138 IR 159 at [134] ('Hosemans No 2'). As earlier noted, Div 1C of Pt 9 requires the Commission, in the review, to consider whether the removal of the applicant police officer is "harsh, unreasonable or unjust". As noted in Collins at [61], the removal of a police officer may be either harsh, unreasonable or unjust "or a combination of all three". 20 In this case, the confinement of the grounds for review by the applicant require only a determination as to whether the removal was harsh; a process that involves mixed issues of fact and law: Burge v NSW BHP Steel Pty Limited (2001) 105 IR 325 at [4]; Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Limited (2003) 128 IR 37 at [82]; Dobbie at [18] and [40], Johnston at [25] and Evans at [1]. 21 Distinguishing between what may be harsh, unreasonable or unjust may be sometimes elusive or involve a degree of circularity, but it is necessary for the Commission to state explicitly the basis upon which it makes a determination in a review undertaken under s 181E (1): Collins at [61] and see Outboard World Pty Ltd (t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183. Thus, the Commission must state explicitly which, if any, of the grounds pursued by the applicant under s 181E(1) are found to be made out. (In this case there is a single ground.) 22 The High Court of Australia discussed the distinction between the concepts of harsh, unreasonable or unjust in Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465 where McHugh and Gummow JJ stated (in the context of an award provision): ... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 23 The fundamental exposition of principle as to what may constitute 'harshness' in the removal of a police officer for the purposes of s 181E (1) is found in the decision of Watson J (made in the context of an unfair dismissal claim) in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233. In Little No 2 (at [70]) the Full Bench stated, in this respect, as follows: In order to illuminate this conclusion, it is unnecessary to go any further than to recall the classic exposition of principles applicable to unfair dismissal matters given by Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233, which principle, whilst stated in relation to proceedings under the Industrial Arbitration Act 1940, is equally applicable to proceedings under the Industrial Relations Act. His Honour there stated: In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. (See also Department of Health v Kaplan [2010] NSWIRComm 65 at [29] ('Kaplan').) 24 The concepts of the 'severity' of the dismissal and 'too harsh a consequence' in Metropolitan Meat Industry Board naturally bring with them the notion that the assessment of harshness involves, in part, an evaluation of the gravity of any misconduct giving rise to the removal: Collins at [37] and Brennan at [70]. Thus, the question of proportionality arises (see Byrne at 465 and 467, Evans at [7] and Kaplan at [28]). Further, in the case of an application based on harshness, the Commission must take into account whether there were any mitigating circumstances (see Little No 2 at [70] and [71]). 25. Before turning to mitigating circumstances, it is appropriate to reflect upon an observation made by Schmidt J, in the minority, in Evans (at [84]). Her Honour accepted, as being open to the trial judge in an application pressed upon the ground of harshness, various considerations, including the nature and degree of the conduct engaged in by the police officer and other mitigating circumstances such as his remorse, good character, steps taken to deal with his drinking problem and other personal and financial circumstances. These, her Honour found, were relevant, even when the officer had engaged in serious misconduct. In this respect, Schmidt J accepted the trial judge's reliance upon Metropolitan Meat Industry Board. However, her Honour observed that what might be found as an unfair dismissal under Pt 6 of Ch 2 of the IR Act on the grounds of harshness might not be necessarily so concluded in proceedings under Div 1C of Pt 9 of the Police Act because what was not required to be considered in Metropolitan Meat Industry Board was how the conclusions (relevant to the principles in Metropolitan Meat Industry Board) were to be balanced with the public interest in "the maintenance of the integrity of the Police Service". That observation may be accepted and is broadly consistent with the approach of the Full Bench in Brennan at [70] and [71]. However, there is an observation and a qualification which should be made. First, by way of observation, I apprehend her Honour accepted, and I agree, whilst s 181F(3) is applicable (as earlier noted) to the assessment of harshness, that approach does not alter the factors applicable to the assessment of harshness, per se, namely, those stated in Metropolitan Meat Industry Board. Nor do those public interest considerations relieve the Commission of the need to fully assess the ground of harshness, when it is raised, in accordance with the factors stated in Metropolitan Meat Industry Board. Secondly, by way of qualification (as noted by the majority in Evans), the considerations arising under s 181F (3) do not dominate or necessarily determine a review when the issue of harshness is raised, but are to be weighed in the balance in accordance with the aforementioned principles (see also the approach adopted by the Full Bench in Johnston at [35] and [36]).
6. In Fraser (No 1) at [210], reference was also made to Vouden at [610]. That paragraph in Vouden does mix particular considerations arising under the Police Act with those presently under consideration but also incorporates general statements of principle relevant to proceedings under s 84. As to the question of harshness, it will be convenient to extract that paragraph and some earlier paragraphs which contextualise the observations in [610]. We therefore take in extracts from Vouden at [606] to [610] as follows: [606] It is against this background and the findings earlier made in this decision as to the seriousness of the applicant's misconduct that an overall assessment as to 'harshness' must be undertaken by the Commission. [607] As earlier mentioned, that consideration requires an evaluation as to whether the removal of the applicant was harsh because of his personal and economic circumstances or because it was disproportionate to the gravity of the misconduct (in itself or when examined in the light of the personal and economic circumstances of the applicant). [608] I have earlier discussed the applicant's personal and economic circumstances and the consequences of his removal. He joined the Police Force as a late career change. … [609] The applicant's past good service record and references attesting to his personal character, work ethic and performance, as earlier found, are also factors which contribute (in favour of the applicant) to an assessment of whether his removal was harsh. [610] Those conclusions do not necessarily result, however, in a finding that the removal was harsh. They must be balanced or weighed against earlier findings as to the seriousness of the applicant's conduct and public interest considerations arising under s 181F(3)(b).

Was the dismissal of the respondent unreasonable or unjust?

1. With those considerations in mind, we propose to now commence with a discussion as to whether the dismissal was unreasonable or unjust.
2. The appellant addressed these questions in the following manner in its written submissions: 9. … the primary ground relied upon by the respondent below, that the dismissal was unjust because the employee was not guilty of the misconduct alleged, cannot be sustained; nor can the contention that the dismissal was unreasonable, because it was decided upon inferences which could not reasonably have been drawn on the material before the employer, be sustained. 10. The Full Bench ought, accordingly, expressly find: (i) The dismissal was not "unjust" because the employee (Mr Fraser) was guilty of the two central allegations of misconduct alleged against him; (ii) The dismissal was not "unreasonable" because it was not decided upon inferences which could not reasonably have been drawn from the material before the employer.
3. The respondent did not gainsay these submissions but made the following contention constituting, in essence, a case that the dismissal of the respondent was harsh. We extract, in that respect, the following parts of the respondent's written submissions: 18. Although the two allegations involving Ms. Slacke have been upheld by the Full Bench, the Respondent maintains that he did not behave in the manner alleged. Therefore, his lack of contrition or remorse should not be a factor against the Commission exercising its discretion under Section 89 of the Industrial Relations Act ("the Act"). 19. Although the Respondent maintains that he did not engage in the alleged misconduct that has been found against him, he accepts that the findings against him do constitute misconduct. 20. The termination of the Respondent on the basis of the two findings against him was not only harsh but also catastrophic for him. The Respondent lost a secure job in the Public Service. That in itself, it is submitted, even apart from considerations of age, should be viewed in a different category to that of the loss of a position in the private sector. … 25. The Commission has a discretion under Section 89 of the Act. It is not submitted that the Respondent should escape any penalty in relation to the adverse findings made against him by the Full Bench, even though the financial loss he has incurred to date is substantial. Section 89(2) of the Act gives the Commission the discretion to "penalise" the Applicant, but to also allow him to continue in his employment in circumstances where reinstatement is not practicable. 26. Having regard to the findings against him, the Respondent accepts that it is not practicable for him to be reinstated to the position of a First Class Correctional Officer, Year 2. However, it is open to the Commission to order the Respondent's re-employment by the Appellant as a Correctional Officer at a grade below that of a First Class Correctional Officer, Year 2, with or without any compensation for pay lost since his dismissal. 27. For the reasons set out in paragraph 21 above, it is also submitted that if the Full Bench is inclined to order the re-employment of the Respondent that it be with continuity of service. 28. It is also open to the Commission to make any order for re-employment conditional upon a Final Warning being issued to the Respondent and that he be required to attend appropriate courses or counselling in order to improve his interaction with female correctional officers and inmates.
4. It is sufficient, at this juncture, to conclude that we accept the submissions of the appellant set out in [23] above with respect to the question as to whether the dismissal of the respondent was unreasonable or unjust. We find that the dismissal of the respondent was not unreasonable or unjust.

Was the dismissal of the respondent harsh?

1. We shall then turn to the question of harshness. Before expressing our conclusions in that respect we shall briefly summarise the submissions of the parties commencing with the appellant.

Submissions of the appellant

1. The appellant made submissions which may be summarised as follows: 1. The assessment of harshness involves a balancing or weighing exercise whereby an evaluation is required to be made, on the one hand, of the gravity of any misconduct giving rise to the dismissal against, on the other hand, any mitigating circumstances; 2. The respondent was guilty of misconduct which constituted sexual harassment by a correctional officer of an inmate; 3. That misconduct was predatory in nature with Mr Fraser abusing the position of power conferred upon him, as a senior correctional officer, over a vulnerable female inmate who was in his care and control; 4. The misconduct, so described, represented a complete repudiation by the respondent of his responsibilities as a correctional officer; 5. Insight into the gravity of the misconduct can also be obtained having regard to the impact on the victim, Ms Slacke. Her evidence was that, as a result of the conduct of the respondent in the handcuffing incident, she felt "helpless and shameful because he is an officer and in charge" and, in relation to the transport incident, that it made her feel "disgusted as if how dare you take advantage of me" and left her feeling "offended and dumbfounded"; and 6. There were aggravating factors, namely, the seniority of the respondent as a correctional officer, prior remedial action taken with respect to him via a performance management plan and his unenviable employment record. To these factors may be added the respondent's demonstrated denial of the allegations of misconduct, his total lack of remorse or contrition and the absence of any apology to the victim.
2. The appellant also referred to a number of relevant mitigating factors. (It should be noted that the appellant's submissions, in this respect, were made prior to the admission of some fresh evidence through the respondent's submission and hence need to be understood in that light. We will attend to the appellant's submissions in reply momentarily.)
3. Those factors and the appellant's observations with respect to them are as follows: 1. The age and financial position of the respondent. If it were accepted that the respondent's age would result in difficulty in him finding alternative employment (which would provide him the same level of remuneration), Mr Fraser would have no one else to blame but himself for being placed in such a predicament; 2. The previous length of service and character evidence. Whilst this would constitute a mitigating factor if Mr Fraser was able to establish a good service record, the findings of the Commission weigh heavily against him. It was accepted that his service record was lengthy but characterised by numerous disciplinary issues and interpersonal conflicts with professional colleagues. The appellant pointed to two incidents in the respondent's career where, it was contended, he acted commendably. However, it was submitted, the respondent transferred from John Moroney Correctional Centre to Port Macquarie Escort Unit in 2006. There is no evidence of any significant commendable work achievements subsequent to that transfer. The adverse findings by the Full Bench as to Mr Fraser's credit are also appropriate to be taken into account in this respect as are his lack of remorse and contrition; 3. The likelihood of reoffending. The failure of the respondent to admit any wrongdoing or express remorse or contrition does not provide a foundation for any finding that, should the respondent be returned to employment, there would be little likelihood of reoffending. The history of employment of the respondent weighs heavily against him in this regard; 4. The failure of the respondent to accept responsibility and to show any remorse is an aggravating rather than mitigating factor; 5. The stigma which may attach to the circumstances surrounding the dismissal from the appellant. There is no evidence of any such stigma and no weight should be attached to it; and 6. Consequences of dismissal. The omission by the respondent to call evidence with respect to his personal and financial circumstances lay at the centre of the contest over fresh evidence. It resulted in a number of observations made by the appellant at paragraph 9 of its submissions in reply. (Given the approach we have taken to this issue, we shall return to the appellant's submissions in this respect after considering the respondent's submissions.)
4. The culmination of those submissions was that the balancing of the gravity of the respondent's misconduct with mitigating factors should result in the conclusion that, on balance, the dismissal was not harsh. The Commission should also have regard to the protective nature of the disciplinary regime under Pt 2.7 (entitled "Management of Conduct and Performance") of the Public Sector Employment and Management Act 2002 (which was in force when the decision was made to dismiss the respondent) in that respect.
5. The Full Bench ought find, it was submitted, that the dismissal of the respondent was not harsh, unreasonable or unjust. This was not a case for a possible remedy under s 89 of the Act (again, we will return to that submission after consideration of the respondent's submissions).

Submissions of the respondent

1. The submissions of the respondent were relatively brief and, given the evidentiary issues to which we have previously alluded, we shall set them out in full (absent those components earlier set out in this decision). Those submissions are as follows: 1. The Applicant was born on 6 July, 1958 and is currently aged 56 years. 2. Since 4 March, 1987 the Applicant has worked as a Correctional Officer. He became a First Class Correctional Officer in March, 1990 and at the time of his dismissal his seniority was that of a First Class Correctional Officer, Year 2. 3. Between 26 September, 2013, being the date of dismissal and 18 June, 2014 when the Appellant commenced paying the Respondent his base salary, the Respondent has lost approximately $72,000.00 in salary together with about $6,500.00 in superannuation contributions. 4. At the time of his dismissal, the Respondent was employed in the Port Macquarie Court cells as a member of the Court Escort Security Unit ("CESU"). He had worked at this court since 2006. 5. The Respondent has no other skills or qualifications. He has worked as a Correctional Officer for most of his adult life. He loved the work he performed in that role. 6. The Appellant never raised any issue in relation to the Respondent's work performance and his competence to carry out his required duties. 7. The Respondent lives in Port Macquarie, which is a region where there is very little employment, let alone employment for someone with his age and lack of qualifications and skills. Furthermore, publicity in the print media about his dismissal and the decision in this Appeal will make it even that much harder for him to obtain employment. 8. The penalty of dismissal for a man of the Respondent's age is of a much harsher consequence than would otherwise be the case with a younger employee. There will be real difficulties for him in securing alternate employment in the current economic climate. 9. The Commission would be aware, through the numerous section 84 applications that have come before it over the years, of the very real difficulty that older, mature workers experience in obtaining alternative employment when they are dismissed. 10. The Respondent's wife works on a part time basis only. Although the Respondent has no mortgage, he is currently providing financial assistance to his son, who is a university student at Newcastle University. 11. During his career as a Correctional Officer, the Respondent has displayed his commitment to his role and has shown his concern for others. In about 1994, whilst at Parklea Correctional Centre, he and 2 other officers received a Commissioner's Commendation for dragging three inmates and a correctional officer, who were unconscious at the time, out of a burning building. They all survived, although the officer was badly burnt. 12. In 1996, whilst at John Moroney Correctional Centre, the Respondent revived a 6 week old infant of an inmate, who had stopped breathing during a visit, by performing CPR for 17 minutes until the ambulance arrived. 13. In 2000, again whilst he was at the John Moroney Correctional Centre, the Respondent assisted a nurse, Jan Haggart, to revive an inmate who had overdosed on heroin in his cell, by performing CPR until medical assistance arrived. The Respondent and the nurse received a local commendation at the weekly staff meeting from the Governor of the correctional centre. 14. It is fair to say that for the most part of his 26½ years' service as a Correctional Officer, the Respondent had performed his duties without any issues concerning his conduct or work performance. In fact, the majority of the allegations against him have arisen since he arrived at the Port Macquarie Court cells as a member of the CESU. 15. Although a number of matters/allegations against the Respondent were referred to in the hearing before Deputy President Harrison, there has never been any substantiated allegations that involved the inappropriate touching of any female correctional officer or inmate. The "Hey Lesbians" incident involved the use of inappropriate language to a group of male and female correctional officers. He has been disciplined in relation to this incident. The "Parole Board" matter arose in June, 2005 and did not involve either inappropriate language or inappropriate touching. That warning, given as it was almost fourteen years ago should not be considered as extant. 16. The Complaint made by Officer Stewart on 3 May, 2010 only came to the Respondent's attention when he was given a copy of the Investigator's Report. That Complaint was uncorroborated and denied by the Respondent in cross-examination. 17. The allegation of the female inmate in January, 2010 was also uncorroborated, yet sustained against the Respondent. He has denied and continues to deny that allegation. He has also been dealt with by the Appellant in relation to that matter. … 21. The Respondent was a member of the State Authorities Superannuation Scheme ("SASS"). He had another 9 years' of service before he could retire on the maximum benefit payable under this defined benefits fund. Therefore, his earlier termination of employment will result in a further loss to him in relation to the superannuation benefit he could have expected to receive upon retirement. 22. In his letter to the respondent dated 12 December 2012, Commissioner Peter Severin set out the disciplinary options available to him, under section 42(1) of the Public Sector Employment and Management Act 2002 ("the PSEM Act"), which was applicable to the Respondent at that time, in the event he formed the opinion that the Respondent had engaged in misconduct. Those options were: (a) A caution (b) A reprimand (c) A fine (d) A reduction in salary (e) A demotion to a lower graded position (f) To be allowed to resign (g) A direction to resign (h) Dismissal 23. Commissioner Peter Severin imposed the most severe penalty and dismissed the Respondent without there being any evidence that he had taken into consideration any of the other options set out in paragraph (22) above. For an employee in the Respondent's position, taking into account all the factors we have set out in paragraphs 1 to 21 above, dismissal was, in our submission, harsh, unreasonable or unjust. 24. The term "harsh" was considered by the Full Bench of this Commission in Department of Health v. Perihan Kaplan (2010) NSWIRComm 65. It was observed at paragraphs 27-29 that: "…………..There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union (1971) AR (NSW) 95 at [99] ('Loty'), that the exercise of the Commission's powers in relation to unfair dismissals……..requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" (Loty at 99).In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". To similar effect, a Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [71] ('Little') stated: The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate "justification" in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act. 28. This conclusion must also follow from the very meaning of the concept of "harshness" within s84 (1). The words "harsh, unreasonable or unjust" in sec 84(1) are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Byrne v Australian Airlines Ltd [1995] HCA24;(1995) 185 CLR 410 at [467] ("Byrne") per McHugh and Gummow JJ, (applying Bostik (Australia) Pty Ltd. v Gorgevski (No2) (1992) 36 FCR 439 at [28]. The appellant's acceptance that the expression 'harsh' would bear the meaning "disproportionate to the gravity of the misconduct" (see Byrne at [465]), necessarily brings with it the conclusion that a breach of an employment contract or even a repudiation of it will not be determinative of a finding under s 84(1) of the Act as to whether the dismissal was harsh. So, too, does an acceptance (see Byrne at 465) that the personal circumstances of a dismissed employee may be also brought into account. 29. We would add to the discussion of the meaning of the expression 'harsh' [for the purposes of s 84 (1)], our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch, [1973]AR (NSW) 231 at [233] where his Honour stated as follows: In some cases, the issue of fairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence." … 29. If the Commission requires evidence of the matters referred to in these submissions, the Respondent seeks leave to re-open his case so as to file such evidence.

Submissions of the appellant in reply

1. In deference to the difficulties associated with the fresh evidence sought to be led by the respondent, we set out in full paragraph 9 of the appellant's submissions in reply as to the nature of the fresh evidence adduced in the submissions of the respondent: 9. So far as the appellant can discern, the following are the additional factual matters, or fresh evidence, the respondent is now seeking to adduce, and rely upon, in support of his contention that the dismissal was harsh: (i) Paragraph 7, first sentence: The proposition that Port Macquarie is a region where there is very little employment (let alone employment for someone with the respondent's age and lack of qualifications and skills) is not currently supported by evidence. Comment: The authority for this bald proposition is unattributed. It is unclear whether the proposition is the personal opinion of the respondent based on some personal experience in endeavouring to gain employment since his dismissal or is based on some other source. It can have little probative value. (ii) Paragraph 7, second sentence: The proposition that publicity in the print media about the respondent's dismissal will make it much harder for the respondent to obtain employment in future is also not supported by any evidence to that effect. Comment: There is simply no evidence in the proceedings of any publicity in the print media about the respondent's dismissal. In the absence of copies of the "publicity in the print media" and some indication of the circulation of such printed material, it is difficult to see what probative value that contention can have without the necessary supporting foundation. (iii) Paragraph 8, second sentence: The second sentence asserting that there will be real difficulties in the respondent securing alternate employment in the current economic climate is without any supporting foundation. Comment: The evidentiary difficulty with this proposition is that it is not supported by a foundation as to any direct evidence of the respondent having endeavoured to secure alternate employment and his success or otherwise in such attempts. Furthermore, it is unclear from the contention whether it is conveying an opinion of the respondent or the opinion of some other person or body. On this basis, such evidence can have little probative value. (iv) Paragraph 9: The general proposition advanced here appears to be that the Commission should take judicial notice of the purported general proposition that older, mature workers who have been dismissed experience difficulty in obtaining alternate employment. Comment: The foundation for the submission is not established other than on the most tenuous basis. Indeed, the appellant submits there is no proper foundation for such judicial notice. In any event, the probative value of such evidence is extremely limited. (v) Paragraph 10: The factual propositions advanced in this paragraph all constitute fresh evidence. Comment: To the extent this material relates to the financial position of the respondent, it is both extremely sparse and, without more, of very limited probative value. To illustrate, the contention that the respondent's wife works "on a part time basis only" gives no indication as to the earnings of the respondent's wife or the circumstances in which the respondent and his wife share their financial commitments. The statement that the respondent has no mortgage is indicative of a person in a sound financial situation but again is not placed in the context of a comprehensive statement of the respondent's assets and liabilities. Furthermore, the contention that the respondent is currently providing financial assistance to his son, who is a university student, is again obtuse without information as to why that is the position, what is the extent of the financial assistance, and how much longer that financial assistance might be needed. (vi) Paragraph 11: The paragraph involves a description of the Parklea Correctional Centre incident in an embellished form as compared with the account received into evidence. Comment: The embellishment relates to an incident over 20 years ago and it is unexplained why the respondent did not earlier recount the incident as now presented if that was in fact what occurred. Any extra probative value from the embellishment of the previous account is limited. (vii) Paragraph 13: This paragraph seeks to introduce entirely fresh evidence relating to an alleged incident at the John Morony Correctional Centre in 2000. Comment: There is no explanation as to why evidence of this alleged incident was not presented in the respondent's evidentiary case. The evidence, if admitted, would have limited probative value. (viii) Paragraph 21: The proposition that the respondent was a member of the State Authorities Superannuation Scheme was not alluded to in evidence nor any evidence about any consequential financial loss than might arise from his withdrawal from that scheme upon dismissal. Comment: Again, this material is extremely broad and generalized in nature and does not touch upon the pension entitlements, or withdrawal benefits, flowing to the respondent given that he was over 55 years of age at the time of his dismissal. Of course, any notional loss, arising from his earlier withdrawal from the scheme than might otherwise have been the case had he continued to work for another 9 years, can be expected to be at least partially offset by entitlements to superannuation guarantee levies arising from any future employment.The appellant also made a number of submissions in relation to the respondent's contentions in respect of s 89 of the Act.
2. We note but do not record the remainder of the submissions in reply save for paragraph 23 thereof which is in the following terms: The appellant refers to paragraphs 18 and 19 of the respondent's submissions in which he continues to deny any wrongdoing notwithstanding the serious findings of misconduct by the Full Bench. On that basis, the respondent's "acceptance" that the findings against him do constitute misconduct is no more than a technical acceptance rather than a real acceptance of wrongdoing. The respondent remains in denial.

Conclusion re harshness

1. Bearing in mind the foregoing discussion of principles, we will consider the severity of the penalty inflicted on the respondent for his misconduct having regard to relevant mitigating circumstances. In other words, it is necessary to consider whether the dismissal was disproportionate to the gravity of the misconduct both in itself and when examined in the light of mitigating circumstances including the personal and economic circumstances of the respondent.
2. We will commence that discussion by considering the question of misconduct. We have already found that the respondent engaged in misconduct. What is relevant at this juncture is the character and severity of the misconduct.
3. That question is partially answered in Fraser (No 1), wherein the Full Bench found that the respondent had engaged in the misconduct alleged against him with respect to the handcuffing and transport allegations (save that the Full Bench found the respondent had grabbed rather than groped Ms Slacke's buttocks when she entered the transport vehicle) and that such misconduct constituted sexual harassment by a correctional officer of an inmate. That conduct was described in Fraser (No 1) as "unacceptable". It is also serious because it involved a flagrant breach of the duties and obligations falling upon the appellant as a correctional officer and, as the appellant submitted, an abuse of his position of power over a vulnerable female inmate who was in his care and control.
4. We do not consider that the evidence before us enables the finding sought by the appellant that the respondent's behaviour was predatory in nature (in view of our findings as to tendency evidence). However, we do consider that there are aggravating factors as follows: 1. The respondent was a senior correctional officer in whom his employer ought to have been able to have complete confidence that he would act appropriately and professionally in any interaction with a female inmate: Lawrance (No 1) at [296(d)]; 2. The respondent's misconduct was perpetrated by an officer, elements of whose employment history could not be described as enviable: Fraser (No 1) at [172] to [177]; and 3. The respondent made the curious submission that his denial of his misconduct resulted in his "lack of contrition or remorse" not being a factor which the Commission could take into account against him. He submitted, despite his denials in this respect, that he accepted the findings made against him did constitute misconduct. We consider that the appellant correctly submitted that these submissions should be interpreted as mere technical acceptance of findings made in proceedings and not an acceptance of any wrongdoing. Indeed, in paragraph 18 of his submissions, the respondent expressly conceded his lack of contrition. His lack of contrition and remorse is an aggravating factor. It is not and cannot be extinguished because of the respondent's denials. An act of contrition might have gone some way to removing the hurt experienced by Ms Slacke, as earlier described in the summary of the appellant's submissions, and given his employer (and the Commission in this adjudication) some greater confidence in the respondent not reoffending.
5. These findings need to be counterbalanced against mitigating factors.
6. In Fraser (No 1), we recognised that the respondent had served the appellant for over 26 years. He commenced as a correctional officer on 4 March 1987 and became a first class correctional officer in March 1990. It follows that the respondent had a very lengthy career with the appellant prior to his dismissal. This is a factor which weighs significantly in his favour.
7. The seniority he reached in the service is a mixed factor as whilst it may be demonstrative of recognition of good service at the point of the respondent's advancement, it also casts a light upon the obligations upon him as a correctional officer in the manner we have earlier discussed above.
8. We accept that the respondent did engage in commendable acts during the earlier periods of his service but we also take into account, as the appellant submitted, that the difficulties in his employment to which we have earlier referred occurred later in his service and that from that time there was no evidence of significant commendable work achievement. Further, there are elements of his work history, previously discussed in Fraser (No 1), which weigh against the respondent (see Fraser (No 1) at [172] to [186]).
9. We are prepared to accept that the consequences of dismissal for the respondent are severe. He is 56 years of age. That factor, combined with his limited specialised skills as a correctional officer, the availability of employment in the region in which he lives and adverse publicity will, we accept, impede his capacity to obtain other work and, consequently, have a significant financial impact upon him. We also acknowledge what the respondent states about his commitment to the role which he previously occupied.
10. The financial implications for the respondent will be reduced because he has no mortgage but we note also that his wife works only part time and that he is providing financial assistance to his son who is a university student at Newcastle University.
11. We also accept the respondent's submission that the date of his termination adversely affected the superannuation benefits that he may have received if he continued to retirement.
12. Overall, we accept in mitigation that the respondent has lost a position that he held dearly and that the loss will have particular, significant personal and professional implications for him including adverse financial implications which are compounded by his age. We also accept that the respondent has had long service and, at least in the earlier part of his career, as we have noted, some commendable attributes.
13. These factors, in particular his length of service, commitment to his position and age, are factors which illicit some hesitance in finding that the dismissal of the respondent was not harsh. However, when these factors are balanced against the seriousness of his misconduct (in particular the significant breach of the obligations laying at the centre of his duties as a correctional officer and his engagement in serious harassment of a female inmate) and the absence of any remorse or contrition for that conduct, we are compelled to conclude that the respondent has not established that his dismissal by the appellant was harsh.

Overall conclusion

1. We therefore find that the dismissal of the respondent was not harsh, unreasonable or unjust. We confirm the orders made in Fraser (No 1) at 212, (2) and (3) and, in consequence thereof, substitute our own decision in matter number IRC 823 of 2013 such that the application is dismissed. We make orders accordingly below.
2. As foreshadowed in [2] above we will make provision in the orders below to deal with any issue arising as to the proper title of the appellant. In the event that any submission filed indicates the need to adjust the name of the appellant, the Commission will make any necessary adjustments administratively in Chambers with a resultant variation to the published version of this decision.

orders

1. The Full Bench orders: 1. The application in matter number IRC 823 of 2013 is dismissed. 2. The parties may file any submission, in writing, as to the proper title of the appellant within seven days of the date of this decision. POSTCRIPT: After receipt of a submission in accordance with order (2) above, the Full Bench ordered that the title of the decision in Corrective Services NSW v Fraser (No 2) [2015] NSWIRComm 10 be varied to 'Industrial Relations Secretary v Fraser (No 2)' and the published decision be amended to incorporate that change of title and this postcript.

Amendments 01 April 2015 - This decision was amended on 1 April 2015 to incorporate the postcript appearing after [50]. In the result, the title of the decision was also amended from "Corrective Services NSW v Fraser (No 2)" to "Industrial Relations Secretary v Fraser (No 2)" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 April 2015