Kemp v Industrial Relations Secretary in respect of the Department of Communities and Justice; McCaig v Industrial Relations Secretary in respect of the Department of Communities and Justice

Industrial Relations Commission (NSW)|2022-11-01

DECISION

Owen Kemp and Jake McCaig (together, "the Appellants") were employed as Correctional Officers with Corrective Services NSW ("CSNSW"). On 6 May 2022 they each pleaded guilty in the Local Court to a charge of common assault. In consequence, CSNSW terminated the employment of each of the Appellants. They have each appealed the decision to terminate their employment, pursuant to Ch 2 Pt 7 of the Industrial Relations Act 1996 ("IR Act").

Determinations

I have determined to dismiss Mr Kemp's appeal.
I have determined to uphold Mr McCaig's appeal. While he will be restored to his employment, I will make no order for back pay. In addition, Mr McCaig is to receive a reprimand and be fined $1000.
My reasons follow.

Mr McCaig

Mr McCaig commenced employment with CSNSW on 4 December 2017. At the time his employment was terminated, he was employed as a FCCO at the Shortland CC. He followed his parents into the career, with his father having been an Assistant Superintendent and his mother still being employed as a Senior Correctional Officer at the Shortland CC.
Until the events resulting in his dismissal, Mr McCaig had no adverse disciplinary history. There is evidence of him having received an "informal warning" in December 2020 for "using inappropriate language" and "being unprofessional" in responding to a group email thread, but I place little weight on that evidence.
Mr McCaig is 24 years of age. He has four dependent children aged approximately between 1 and 5. He resides, and has always resided, in the Cessnock area.

Terms of employment

The Appellants were employed in the Public Service under the Government Sector Employment Act 2013 ("GSE Act"). Section 7 of the GSE Act sets out the "core values for the government sector". These include to "act professionally", to "take responsibility for situations", to "build relationships based on mutual respect" and to "uphold the law".
The Role Description for a Correctional Officer describes the "key accountabilities" of the role as including to "treat other staff with respect and act in accordance with DCJ values to build a harmonious workplace". A "focus capability" of the role is to "Act with Integrity", requiring a Correctional Officer to "be ethical and professional, and uphold and promote public sector values".
The Appellants were required to conduct themselves in accordance with the Department of Communities and Justice Code of Ethical Conduct ("Code of Conduct"). That document relevantly provides: 4 Policy statement The prime responsibility of any individual engaged by the department is to place the public interest above their own personal interests and, at all times, to demonstrate the core values of the public sector and the department: … Trust … • Build relationships based on mutual respect. • Uphold the law… … Respect • Treat colleagues, clients & their families and members of the public with respect and dignity, fairness and consistency. … 6 Principles of professional behaviour … Employees are required to: … • be aware that conduct which may have the potential to damage the reputation of the department could lead to further action, even if the conduct may have been in a private capacity … 8.10 Conduct while off duty All employees must, even when off duty, act in accordance with the law and this code. Employees must ensure that they do not bring discredit to themselves as private citizens or to the department, and that they model exemplary behaviour and act as a positive influence in the community. Employees should be aware that unlawful or unprofessional conduct, even in a private capacity, may damage, or have potential to damage, the reputation of the department and impact their ability to perform their role, therefore, may constitute misconduct and attract action by the department in accordance with section 69(4) of the Government Sector Employment Act 2013. Section 69(1) of the Government Sector Employment Act 2013 provides that action can be taken for misconduct which occurs when an employee is off duty or before his or her employment."

The events culminating in the termination of employment

At approximately 12.30am on 16 February 2021 the Appellants attended the home of Carl Budda-Deen, another FCCO employed at Shortland CC. Between 12.30am and approximately 1.00am there were separate physical altercations between each of the Appellants and Mr Budda-Deen. For ease of reference, and consistent with the parties' written submissions, I will refer to the events of 16 February 2021 as "the Incident".
There is significant controversy as to the events comprising the Incident, and the nature of the physical altercations which took place. I attempt to resolve that controversy at [35]-[70] below.
The Incident came to the attention of Hamish Shearer, the Custodial Director Northern Region of CSNSW, on 16 February 2021. He endorsed a decision to place the Appellants on special leave with pay, effective from 17 February 2021, while the matter was investigated. Being on special leave meant that the Appellants were entitled to receive base pay only, and not the allowances and overtime that they might otherwise have been entitled to receive had they been rostered for duty.
On or about 1 June 2021 each of the Appellants was charged with four offences arising out of the Incident. One of these was a charge of common assault in contravention of s 61 of the Crimes Act 1900.
Mr Shearer became aware of the charges on approximately 11 June 2021. On 22 June 2021 he wrote to each of the Appellants informing them that he had decided to suspend them from duty, with pay, effective immediately in accordance with s 70 of the GSE Act. The Appellants continued to be entitled to receive base pay only.
CSNSW suspended any investigation into the Incident pending the outcome of the criminal proceedings.
On 28 April 2022 the criminal proceedings came before Magistrate Stone of the Local Court. As a result of negotiations between the Appellants' legal representatives and the prosecution, the Appellants each agreed to plead guilty to one charge of common assault. The other charges against each of them were withdrawn.
On 6 May 2022 Magistrate Stone found each of the Appellants guilty of common assault in contravention of s 61 of the Crimes Act. Without proceeding to conviction, his Honour sentenced them each to a Conditional Release Order for a period of 24 months to commence on 6 May 2022.
The transcript of the proceedings on 6 May 2022 records his Honour making the following observations: [1] "Common assault carries, as a maximum penalty, two years imprisonment under s 61 of the Crimes Act. By reference to that, one can the gauge that, in the scheme of the criminal law, the offence of common assault is at the lower end of any form of criminal misbehaviour. Common assault involves there being a recognition that there are no injuries or, if there was an injury, quite minor. … It is submitted that there was in this matter no premeditation for the act of committing an assault. I do not have any evidence to suggest that. They attended at night, they attended together. An inference could be drawn or a suggestion made, but there is in fact no evidence of premeditation and I accept that submission. I accept the submission made that they went there for the purpose of the discussion which ultimately turned ugly, for want of a better word, once they were in the home and there was a scuffle involving Mr Kemp and then outside the home another act between Mr McCaig and the victim. Again, it is appropriate to indicate that I cannot make any finding that there was premeditation involved in that outside episode either. I would place the objective seriousness of both matters, not that there was [sic] any significant submissions made about this, but very much at the lower end of objective seriousness. I accept the submission made that, for Mr Kemp, this was an aberration, as it is, I believe, for Mr McCaig. They are both highly regarded. … … So here, again, there are some similar factors. Each of these people would be regarded as having a very low risk of reoffending. Each of these people are not in the need for any special deterrence. I read from the material and from their plea, firstly, an indication of remorse and equally an insight into the fact that what they did was wrong."
The plea of guilty on 28 April 2022 and the sentencing hearing on 6 May 2022 attracted some media attention. Online articles were published by the Newcastle Herald and ABC News on 28 April 2022 and 6 May 2022 respectively.
On 16 May 2022 Mr Shearer wrote to each of the Appellants, in relevantly identical terms. In his letters, Mr Shearer informed each of the Appellants that: 1. he was aware of the outcome of the criminal proceedings; 2. as a consequence, he had made a finding of misconduct against them pursuant to r 40(1)(a) of the Government Sector Employment (General) Rules 2014 ("GSE Rules"); 3. he was considering imposing misconduct action on them pursuant to s 69(4) of the GSE Act, and that the action he proposed to take was termination of employment (without an opportunity to resign); 4. before making a final decision he would consider the objectives of the GSE Act and the GSE Rules, any submissions that the employee wished to make and a "Court Outcome extract obtained from JusticeLink indicating your plea of guilty and sentence imposed"; 5. they were being given "a reasonable opportunity to make a submission in relation to the finding of misconduct and the proposed action", which could be provided in writing and/or orally in a meeting with Mr Shearer; and 6. they were now suspended without pay.
On 25 May 2022 each of the Appellants provided a written submission in response to Mr Shearer's letters. These submissions were forwarded to Mr Shearer on behalf of each of the Appellants by their union, the Public Service Association of NSW ("PSA"). The Appellants also requested an opportunity to meet with Mr Shearer to make oral submissions. Mr Shearer conducted separate interviews with the Appellants on 26 May 2022 via videoconference. An official of the PSA participated in each of these interviews as a representative of the Appellants.
On 9 June 2022 Mr Shearer wrote to each of the Appellants. He informed them that he had made a final decision to terminate their employment, and that the termination of their employment was "effective immediately".

These proceedings

Each of the Appellants commenced proceedings pursuant to s 98 of the IR Act on 29 June 2022, challenging the decisions to terminate their employment. On 10 August 2022 I directed, by consent, that the two matters proceed and be heard together, with evidence in one taken to be evidence in the other.

Applicable law and principles

In Eastwood v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Corrective Services NSW) [2021] NSWIRComm 1014 I made the following observations regarding the Commission's jurisdiction under Ch 2 Pt 7 of the IR Act: "21. These proceedings are brought under Ch 2 Pt 7 of the IR Act. By s 100C(2) of the IR Act, the Commission may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. 22. In Marroun v State Transit Authority [2017] NSWCA 273 the Court of Appeal examined the Commission's jurisdiction under Ch 2 Pt 7. From that decision it is possible to derive the following principles: (1) An appeal under Ch 2 Pt 7 is a fresh hearing of the allegation of misconduct (or an administrative hearing de novo). (In Marroun it was common ground that the proceeding before the Commission was a fresh hearing: at [29]. The Court stated that a conclusion that an appeal under Ch 2 Pt 7 is a fresh hearing was supported by the decision of the High Court in Calman v Commissioner of Police (1999) 73 ALJR 1609; [1999] HCA 60: at [30]; see also [32] and [34].) (2) An appeal by way of fresh hearing means that the appellate body 'stands in the shoes of' the original decision-maker. Where there is a specific charge or complaint before the employer, which has resulted in particular disciplinary action, it will be necessary for the Commission to consider that charge or complaint and, if it be upheld, determine what disciplinary action should be imposed: at [35]. In other words, the Commission is to engage in a two-step process: first, to determine whether the employee has engaged in the misconduct alleged; and second, if the employee has engaged in that misconduct, to determine what disciplinary action is to be taken: at [45]-[47] and [62]. (3) If the allegations of misconduct on which the original decision-maker relied are not proven to the satisfaction of the Commission, the Commission is obliged to allow the appeal: at [62]. (4) Generally, it is assumed that the appellate body has the same powers as the original decision-maker, no more and no fewer: at [35]. The appeal is 'a fresh exercise of administrative power'; it is not the exercise of a different power for the first time: at [48], relying on Calman. (5) Post-decision events or conduct may be relevant to the consideration of penalty, but not to the consideration of the essential precondition to the imposition of a penalty, namely whether the disciplinary charge has been proven: at [56], citing Maritime Services Board v Murray (1993) 52 IR 455. (6) If the Commission allows the appeal, it may consider post-decision events or conduct in determining whether some lesser form of disciplinary action was appropriate: at [62] and [63].
The Appellants' employment was terminated under s 69 of the GSE Act, which relevantly provides as follows: 69 Misconduct - Public Service and other prescribed government sector employees (1) In this section - … misconduct extends to the following - … (d) a conviction or finding of guilt for a serious offence. The subject matter of any misconduct by an employee may relate to an incident or conduct that happened while the employee was not on duty or before his or her employment. serious offence means an offence punishable by imprisonment for life or for 12 months or more (including an offence committed outside New South Wales that would be an offence so punishable if committed in New South Wales). … (4) If, in accordance with those rules, there is a finding of misconduct by an employee of a government sector agency, the person who exercises employer functions in relation to the employee may take any of the following actions - (a) terminate the employment of the employee (without giving the employee an opportunity to resign), (b) terminate the employment of the employee (after giving the employee an opportunity to resign), (c) impose a fine on the employee (which may be deducted from the remuneration payable to the employee), (d) reduce the remuneration payable to the employee, (e) reduce the classification or grade of the employee, (f) assign the employee to a different role, (g) caution or reprimand the employee.
The Appellants admitted that they had engaged in misconduct within the meaning of s 69(1). It was common ground that an offence under s 61 of the Crimes Act was a "serious offence" as defined. A finding of guilt in respect of such an offence was by definition "misconduct".
It follows that there is no need to consider the first of the two steps identified in Marroun v State Transit Authority [2017] NSWCA 273 ("Marroun"). The question for determination is what disciplinary action is to be taken in consequence of the Appellants' misconduct.

The nature of the misconduct

The Industrial Relations Secretary ("Secretary") sought to rely on what he submitted was the objective seriousness of the assaults. He further contended that in each instance it was Mr Kemp and Mr McCaig who initiated physical violence and, moreover, that they had done so without provocation.
The Appellants disputed the contention that they had engaged in acts of unprovoked physical aggression. They urged the Commission to closely examine the circumstances of the Incident and the context in which the assaults occurred. As stated by Mr A Howell of Counsel, who appeared for the Appellants: [2] "One has to understand the plea in the context before you can properly exercise the second step [in Marroun]."
I turn then to examine the events surrounding and comprising the Incident.

The events of 16 February 2021

From approximately 7.30pm on 15 February 2021, the Appellants were at the home of Dayle Mickle, another Correctional Officer employed at the Shortland CC. They were drinking alcohol, although Mr Kemp stated that he had only had about four drinks over the course of the night. At some stage, Mr McCaig told Mr Kemp that Mr Budda-Deen had been overheard describing Mr Kemp's brother as a "sex offender and paedophile". Despite the lateness of the hour, Mr Kemp resolved to attend Mr Budda-Deen's house immediately with the aim of having a conversation with him. Mr McCaig and Mr Mickle accompanied him.
The three individuals arrived at Mr Budda-Deen's house at approximately 12.30am on 16 February 2021. There is significant controversy as to what then occurred.
The facts presented to the Local Court and on which the Appellants entered their respective pleas of guilty were in each case the subject of negotiation, amendment and agreement between their legal representatives and the prosecution. The amended Police Facts Sheet for Mr Kemp ("Kemp Police Facts") includes the following: [3] "About 12:30am on Monday the 16th of February 2021, the accused KEMP and co-accused KEMP and MCCAIG have attended…the home address of the victim and WINKLER, at the time FEROS was also staying at the location. The accused [redacted] and MCCAIG have attended the location with the intention to speak with the victim about calling the accused's brother a 'sex pest' and paedophile. The accused has knocked on the front door of the house, the victim has opened the front door and saw The accused and both MCCAIG and [redacted] standing at the door. The accused said 'Get inside I need to talk to you.' In response the victim said, 'No you can tell me what this is about.' The accused has placed his hand on the victims chest whilst having a hold of his shirt and walked him backwards into the house. [Redacted] and MCCAIG followed behind the victim and the accused into the lounge room of the house. The victim told the accused 'get your hands off me' the accused did not listen and pushed the victim onto the lounge. At the time witness FEROS sat up on the lounge and observed [redacted] MCCAIG appear from around the corner and stood in the vicinity of the kitchen. The accused asked the victim 'did you call my brother a sex pest?' The victim responded, 'no I don't even know your brother, get the fuck out of my house.' WINKLER woke up and entered the lounge room and saw the accused standing over the victim at the lounge WINKLER said, 'You've just come to our house, at all hours of the night and woken us up. You need to leave.' In response, the co-accused KEMP said, 'you can fuck up and get out of the room.' WINKLER said, she saw MCCAIG clench his fists the victim described MCCAIG as 'pumping himself up'. [Sentence redacted] The accused has then grabbed a hold of victim's arms and held them behind his back, stopping him from moving towards MCCAIG. KEMP has swung the victim in the opposite direction. FEROS asked [redacted] and MCCAIG to leave and get out. [Redacted] MCCAIG and FEROS left the room and went out the front of the property to MCCAIG's car, which was parked in the complex driveway. FEROS told [redacted] MCCAIG to stay outside to which both agreed to do. FEROS returned to the lounge room where he observed the accused to still have a hold of the victims arms behind his back. At this stage the victim began to get agitated, the accused told him to calm down and then released his restraint. The victim and the accused continued to have a brief conversation in the living room and asked the victim 'are we all good then?' the victim responded, 'yes we're all good now go.' The accused went to the outside patio with WINKLER and FEROS and proceeded to have a cigarette. The accused said to FEROS, 'I didn't come over here to throw fists I just wanted to find out what was going on. The accused continued to have a conversation with FEROS and WINKLER for 5 to 10 minutes. FEROS thought they were affected by alcohol. During this time the victim had walked to the front of his property where [redacted] MCCAIG were waiting in MCCAIG car. The victim said, 'Don't you dare fucking dare come staunch me in my house again you're not welcome here.' MCCAIG said, 'As far as I am concerned this is council property and I ain't going anywhere.' The victim said, 'Just go you've come into my place uninvited get the fuck off my property, go!' MCCAIG said, 'what have you got a problem with me or something?' At this point MCCAIG swung over the top of MICKLE with his right hand, making contact with the victims neck. The victim then shoved MCCAIG away from him with MCCAIG grabbing a hold of his shirt at the same time. MICKLE has wrapped the victim up in a bear hug getting in between the victim and MCCAIG and said, 'I'm so sorry, I'm so sorry.' WINKLE and FEROS came outside to the driveway both the victim and MCCAIG had their shirts off at the time. MICKLE was standing in between the victim and MCCAIG and said to FEROS, 'I'm so sorry mate, I don't know what's going on, I don't know where I am.' FEROS said, 'You're at Carl's house. Getin your car and fuck off.' FEROS then stood in between the victim and MCCAIG which made them walk in different directions. MCCAIG said to FEROS that he took his shirt off and put it in the car. The victim said 'Get off my fucking property.' The accused said to FEROS, 'I sorted it all out with Carl, we're all good we are going to go.'' The accused, MCCAIG and MICKLE got into the vehicle and left the location. The victim, FEROS and WINKLER went back inside the property waiting about an hour before calling police. At no point did the victim give consent for the accused or MCCAIG to assault him. Police had contacted the accused and given him the opportunity to be interviewed in relation to the allegation. The accused declined being interviewed as a result of his solicitors advise. Police expressed understanding however, explained that out of fairness for the investigation police will put the allegation to him. On the 17th of May [sic] 2021, police attended the home address of the accused and put the allegation to him. In response the accused provided police with his version of events. The entirety of the conversation was recorded via police Body-Worn Video. The accused states that he asked MICKLE and MCCAIG to go with him to the victim's address due to having knowledge of a previous incident involving the victim and correctional officer. When the accused knocked on the door the victim asked, 'who is it?' in response the accused said 'it's Kempy'. The victim then opened the door. The accused said 'mate we need to have a chat' The victim said words to the effect of 'it's a bit late' The accused said, 'yeah but I really want to get this out of the way.' The victim said, 'Yeah ok, i'll talk to you here.' The accused said, 'no no I don't want the neighbours to hear, can we go inside' The victim said, 'yep' The victim has then walked into the home away from the door with the accused walking behind him and MICKLE and MCCAIG walking behind him. The accused asked the victim to take a seat on the lounge, which was where FEROS was laying. The accused asked the victim what had been going on. Which the victim them stood up in front of the lounge agitated and said, 'Why would I say that about you Kempy, why would I say that about your family, I'm your fucking mate I don't even know your family.' The accused has then asked if he and the victim could talk about it further. The victim said, 'yeah but l want those two other cunts to fuck off' MICKLE and MCCAIG then left the house. WINKLER and FEROS left the house and sat out the back pergola area watching both the accused and victim the whole time. The victim told the accused he did not call his brother a sex pest. The accused took his word for it and shook his hand saying 'Righto mate, i'll leave it there, we good?' The victim said, 'yeah we good, but I want to talk to that MCCAIG cunt' The victim then ran out the front door. The accused joined FEROS and WINKLER in the backyard and had a cigarette. The accused apologised for coming to the house so late. ln response WINKLER said, 'I understand where you're coming from i'm just glad it didn't get physical, you shook his hand that's it'. FEROS said, 'listen mate, shit go coming around this hour but if it was my family i'd do the same. The accused heard yelling coming from out the front, when he saw MCCAIG, MICKLE and the victim near MCCAIG car. The victim and MCCAIG both with their shirts off and MICKLE in between attempting to split them up with the victim attempting to advance on MCCAIG. The accused approached the victim and said, 'listen mate, we're not here to do this' and placed his left hand on his lower stomach and walked with the victim back to the house. The accused said, 'We weren't here to do this I wanted to talk to you, I told you he was a kid and you rushed out there anyway. The victim said, 'Nah, he knows what it's fucking about' The accused said, 'Well I don't know what it's about' The victim said, 'nah fuck off out of my house now, get off my property.' The accused, MICKLE and MCCAIG left the property. The accused has no recollection of any physical altercation occurring in the lounge room. He acknowledges he cannot account for what happened on the other side of the fence with the victim and the accused." (Reproduced verbatim)
For clarification, the references in these facts to "Feros" are to Tony Feros, another Correctional Officer employed at the Shortland CC. The references to "Winkler" are to Mr Budda-Deen's partner.
In these proceedings, the Kemp Police Facts were identified as containing two sections. The first is the description of events up to and concluding with the sentence "At no point did the victim give consent for the accused or MCCAIG to assault him". Counsel for the Appellants in the Local Court proceedings suggested (without demur from the prosecution) that this version was "an amalgamation of the statements of Mr [Feros] and Mr Budda-Deen". The second section, after the reference to the police attending Mr Kemp's home, is drawn from a statement provided by Mr Kemp to the police on 17 March 2021 (incorrectly referred to in the Kemp Police Facts as 17 May 2021).
The amended Police Facts Sheet for Mr McCaig ("McCaig Police Facts") is similarly in two sections. The description of the events in the first part of the document is relevantly the same as that in the Kemp Police Facts. The second section is drawn from a statement provided by Mr McCaig to the police on 28 March 2021. That second section of the McCaig Police Facts includes the following: [4] "The accused states before attending the victims house he was aware of the victim calling KEMPS brother a sex offender. KEMP expressed that he wanted to go there and just ask him about it. The accused states that KEMP knocked on the door twice and said, 'it's KEMPY' the victim has then opened the door. KEMP has asked the victim if he could have a chat, all of them walked in and the victim sat on the lounge whilst the accused leant on a wall and played with the victims dog. The victim has then said words to the effect of 'i'll talk to you and not them' In response the accused asked, 'do you want us to leave?' The victim said, 'yes' The accused and MICKLE left the house with FEROS following them out. … The accused sat in his car which was parked in the complex shared driveway and had a phone call with an ex partner. 'what's your problem cunt' The next thing he knew he was being dragged out of the car landing on MICKLE who was stood in front of him. The victim had his left arm on the accused right shoulder neck area. MICKLE turned to the victim and said 'we're not here to fight' the victim took a few steps back and ripped his shirt off and 'shaped up' to the accused. In response to this the accused took his shirt off and put it in the car. WINKLER approached the accused and victim and asked him, 'what happened to your shirt?' The victim said, 'you can ask Jake'. KEMP walked from the house to the victim and accused and placed his hand on the victim's lower torso and walked with him back to the house. … The accused has no recollection of an assault taking place inside the house between KEMP and the victim. The accused goes on to say 'As far as i'm aware the only person who laid hands on Carl Budda-Deen sort of in an aggressive manner would've been me, after he ripped me from the car.' The accused's states that no one was going to the victims location to fight him, one of his mates had gone through the court process with him they did not intend to end up in the same situation." (Reproduced verbatim)
I digress to observe that during the course of the proceedings the Kemp Police Facts and the McCaig Police Facts were often conflated, and referred to by various names including the "police facts", the "amended police facts", the "agreed facts" and the "agreed statement of facts". For convenience, and where it is not necessary to distinguish between the two documents, I will refer to the Kemp Police Facts and the McCaig Police Facts together as the "Agreed Facts".
Each of the Kemp Police Facts and the McCaig Police Facts create challenges as they purport to represent as "facts" competing versions of the events of the Incident - those of Mr Kemp and Mr McCaig respectively, and that of (presumably) Mr Feros and Mr Budda-Deen. It is not necessary to wholly reconcile the differences, even if that were possible on the evidence before me. However, in order to address the cases advanced by the Appellants and the Secretary it is necessary to form some conclusions as to the conduct in which each of the Appellants engaged during the Incident.
Before doing so there are several observations to make.
First, Mr M Seck of Counsel, who appeared for the Secretary, sought to divide the Agreed Facts into "objective" and "subjective" parts, the latter being the description of the Incident provided by each of the Appellants. The implication was that the Appellants' version was to be regarded as less reliable or probative than that of (presumably) Mr Feros and Mr Budda-Deen.
Mr Howell challenged this characterisation. He contended that the Agreed Facts were presented to Magistrate Stone as precisely that. His Honour was not required to reconcile the differences, but only to make findings on those facts to the extent necessary to make out the essential elements of the offence of common assault and in determining the sentence to impose. There is consequently no basis, in Mr Howell's submission, to afford the versions provided by the Appellants less weight.
I accept Mr Howell's submissions. The transcript of proceedings before Magistrate Stone on 6 May 2022 demonstrates that not only did his Honour refrain from making findings beyond those necessary to dispose of the matters before him, he was expressly dissuaded by the prosecution and the Appellants' barrister from making such findings.
Second, there is a degree of inconsistency between the Appellants' evidence in these proceedings and the Agreed Facts as represented to Magistrate Stone by the Appellants' counsel. This is particularly the case with Mr Kemp. During oral submissions, Mr Seck drew my attention to a number of authorities which supported the propositions that a person ought not readily be permitted to withdraw a guilty plea, and that tribunals such as the Commission ought not seek to go behind the facts on which a plea of guilty has been entered.
As it transpired, it is not necessary to traverse these issues. Mr Howell in his closing oral submissions emphasised that the Appellants were not seeking to resile from their guilty pleas in the Local Court or to traverse the facts on which those pleas were entered. He submitted that the Appellants were not "inviting the Commission to accept a factual premise which is inconsistent with the material facts presented on plea". [5] To the extent that the Appellants' written submissions were premised on an alternative understanding of the facts, they were not pressed.
Further in this regard, though, Mr Howell contended that the Appellants were only bound to the extent that Magistrate Stone made particular factual findings. In his submission, nothing could or should preclude the Commission from accepting the evidence of the Appellants given under oath in these proceedings, to the extent that it did not traverse the material facts presented on plea. It is relevant in this context that the Secretary did not invite the Commission to draw adverse inferences regarding the credit of either of the Appellants.
Third, the Secretary did not call either Mr Budda-Deen or Mr Feros to give evidence, each of whom presumably would have been able to give first-hand evidence of the Incident. The evidence disclosed that Mr Budda-Deen remains employed at the Shortland CC. There was nothing to suggest that the same was no longer true of Mr Feros. I am mindful that the Appellants did not submit that adverse inferences ought to be drawn as a result of either witness not having been called. The fact remains, however, that apart from the Agreed Facts, a police facts sheet in respect of Mr McCaig (which was amended to create the McCaig Police Facts) and the transcript of proceedings in the Local Court on 6 May 2022, the only evidence available to me regarding the Incident is that of the Appellants.

Mr Kemp's conduct

In his evidence in these proceedings, Mr Kemp maintained that the conduct amounting to his assault on Mr Budda-Deen was in placing his hand on Mr Budda-Deen's lower stomach after the altercation with Mr McCaig, and walking him back to the house. He steadfastly maintained that no assault had occurred inside the house.
It is clear from the transcript of proceedings before Magistrate Stone on 6 May 2022 that Mr Kemp's counsel accepted that Mr Kemp had assaulted Mr Budda-Deen inside the house. During those proceedings, the only facts to which counsel referred related to Mr Kemp grabbing Mr Budda-Deen's arms, holding them behind his back, stopping him from moving towards Mr McCaig, swinging Mr Budda-Deen in the opposite direction and holding him for some time before releasing him from restraint.
As already observed, Mr Howell submitted that the Commission was not asked to make any findings inconsistent with those presented to the Local Court and about which findings were made. He contended that Mr Kemp's evidence was based on his recollection of the Incident, but having seen the Local Court transcript of 6 May 2022 for the first time in these proceedings, Mr Kemp accepted that he was bound by his plea. He does not seek to controvert the facts on which that plea was entered. It is significant, however, that Mr Kemp did not accept those facts as accurate, which is a matter to which I will return.
The Agreed Facts describe Mr Kemp placing his hand on Mr Budda-Deen's chest, grabbing hold of his shirt and walking him "backwards into the house", before pushing him onto a lounge. In the Local Court proceedings on 6 May 2022 the prosecutor expressly dissuaded the Magistrate from making a finding that Mr Kemp forced his way into the house as it "would breach the rule in De Simone". His Honour consequently made no finding in this regard.
The Secretary, correctly with respect, conceded that he could not rely on that part of the Agreed Facts that referred to Mr Kemp pushing Mr Budda-Deen into the house. He contended, however, that the act of pushing Mr Budda-Deen onto the lounge "forms part of the Agreed Facts". [6]
There was no reference during the Local Court proceedings on 6 May 2022 to Mr Kemp having pushed Mr Budda-Deen onto the lounge. As I read the Agreed Facts, that alleged conduct forms part of a sequence of events that might have suggested forcible entry, and ought properly to be regarded as forming that part of the Agreed Facts, to use the words of Mr Seck, "expressly disavowed by the prosecution based on the [De Simone] grounds". [7] I have consequently had no regard to that aspect of the Agreed Facts.
Mr Seck described Mr Kemp's assault on Mr Budda-Deen in these terms: "[In] what appears to be without provocation, Mr Kemp grabs Mr Budda-Deen's arms and holds them behind his back, in his own house". [8] While the Agreed Facts might permit this description, it does not reflect the evidence adduced by the Secretary.
The documents contained in the Secretary's evidence included a Court Attendance Notice that had been issued to Mr McCaig in approximately June 2021 and a Facts Sheet that appears to have accompanied it ("Original Facts Sheet"). The McCaig Police Facts appear to have been created as a result of handwritten additions or redactions to the Original Facts Sheet. In so far as those amendments are concerned, there is no relevant material difference between the McCaig Police Facts and the Kemp Police Facts.
The contents of the Original Facts Sheet, prior to redaction, add further context to Mr Kemp's conduct. In particular, they contain the following (with the italicised words being those redacted in the McCaig Police Facts): "WINKLER said, she saw MCCAIG clench his fists the victim described MCCAIG as 'pumping himself up'. Out of fear for WINKLER the victim attempted to jump over the lounge as he thought the accused [McCaig] was going to hit WINKLER. The accused has then grabbed a hold of victim's arms and held them behind his back, stopping him from moving towards MCCAIG. KEMP has swung the victim in the opposite direction." (Italics added, otherwise reproduced verbatim)
Rather than Mr Kemp having assaulted Mr Budda-Deen without provocation, the assault appears to have occurred in the context of him seeking to prevent violence against Mr McCaig. Indeed, even without the italicised sentence in the above extract, the reference to Mr Kemp "stopping [Mr Budda-Deen] from moving towards MCCAIG" is consistent with Mr Kemp intervening to prevent an altercation. (Other evidence before me lends credence to Mr Kemp having concerns as to whether Mr Budda-Deen would act aggressively towards Mr McCaig, a matter to which I will return in considering Mr McCaig's conduct.) Mr Howell submitted: [9] "It is not [Mr Kemp] being aggressive towards Mr Budda-Deen, it's him reacting to Mr Budda-Deen heading towards Mr McCaig. It's a restraint, not some form of violent event, for want of a better way to describe it, but nonetheless, meeting the test of common assault, and the plea of [guilt] properly entered."
These matters have a bearing on considering the objective seriousness of Mr Kemp's misconduct, that is not to be discerned solely from the finding of guilt of common assault.
That said, Mr Kemp's restraint of Mr Budda-Deen was apparently of some duration. On the Agreed Facts, the restraint continued while Mr Feros asked Mr McCaig and Mr Mickle to leave the house; accompanied them to Mr McCaig's car in the driveway; and returned to the loungeroom. After Mr Feros had returned, and only when Mr Budda-Deen began to get agitated, and after telling Mr Budda-Deed to calm down, did Mr Kemp "release his restraint". The evidence does not explain why such an apparently extended restraint was necessary, given that the immediate threat to Mr McCaig appears to have passed.

Mr McCaig's conduct

In considering Mr McCaig's assault of Mr Budda-Deen, it is significant that Magistrate Stone made no specific findings as to what had occurred. At the hearing in the Local Court on 6 May 2022, his Honour described the events as "another act between Mr McCaig and the victim", following submissions from Mr McCaig's counsel that referred to "some altercation" between the two men.
What is clear from the Agreed Facts is that immediately prior to that altercation Mr McCaig was outside the house, sitting in his car. Mr Budda-Deen approached him and a physical altercation ensued, which occurred after Mr McCaig had left his car.
There are three things to say about the circumstances in which Mr Budda-Deen approached Mr McCaig. First, as already observed, the Agreed Facts suggest that it was Mr Budda-Deen who first displayed aggression towards Mr McCaig, by attempting to lunge at him (and requiring restraint by Mr Kemp).
Second, the Kemp Police Facts record Mr Kemp's recollection that after he had finished speaking with him, Mr Budda-Deen said, "I want to talk to that MCCAIG cunt". In the statement provided by Mr Kemp to the police on 17 March 2022 he stated that he had said to Mr Budda-Deen, "ok mate but don't go hitting him his just a kid" [sic]. [10]
Third, Mr Budda-Deen approached Mr McCaig in an apparently belligerent, confrontational manner. In his statement to the police on 28 March 2021, Mr McCaig described Mr Budda-Deen as saying, "what the fuck is your problem?". The Agreed Facts described him saying, "what's your problem cunt?".
These matters are important when considering a matter which, while superficially of little consequence, has particular significance in the context of the Incident: how Mr McCaig came to leave his car. The only explanation that is available on the evidence is that offered by Mr McCaig in the McCaig Police Facts, that is, he was "dragged out of the car" by Mr Budda-Deen. Leaving aside that there was no evidentiary challenge to this version of events, it is also not inherently implausible given the matters referred to at [65]-[67] above.
The McCaig Police Facts record Mr McCaig's recollection that when he was pulled from his car he "landed on" Mr Mickle. In the statement he provided to the police on 28 March 2022, Mr McCaig stated that as he was being dragged from his car, "I then placed my right hand on to [Mr Budda-Deen's] left shoulder". [11] It was submitted by Mr Howell that this was consistent with the Agreed Facts, which referred to Mr McCaig swinging over the top of Mr Mickle with his right hand, making contact with Mr Budda-Deen's neck. As Mr Howell submitted: [12] "And then there is the act that constitutes the assault. In the police facts it says, 'At this point the accused swung over the top.' It's not described as a punch, it's not described as a strike. He swung over the top. And my client has never denied that he reached over Mr Mickle to grab a hold of Mr Budda-Deen."
On the evidence there is no basis to find that Mr McCaig's assault of Mr Budda-Deen occurred other in the circumstances he described.

Procedural fairness issues

The Appellants contended that they were denied procedural fairness in the process that culminated in the termination of their employment. There was some debate during the hearing as to the extent to which the Commission was required to consider these contentions. The Secretary's position was that procedural fairness issues were of little consequence in the context of a de novo hearing. The Appellants contended that a denial of procedural fairness may warrant or support a decision to uphold an appeal. They conceded, however, that any procedural defects in the process culminating in the dismissals would become secondary if the Commission was otherwise persuaded that the appeals ought to be allowed on the merits.
Section 100C(3)(a) of the IR Act provides that even if it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Commission is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits. Nothing in this provision suggests that questions of procedural fairness are irrelevant, even if the Commission decides to uphold the appeal on its merits, and in fairness I did not understand the Secretary to be making that contention. I am mindful, however, of the following submissions made by Mr Howell: [13] "When a substantive point of procedure is raised, in my respectful submission it's entirely appropriate for the Commission to hear and determine it. If you think it's a proposition which is made good, you ought uphold the appeal at least in part on that basis because people take guidance from what this Commission says."
It was abundantly clear that Mr Shearer made his decision to dismiss each of the Appellants almost exclusively on the ground that they had each been found guilty of common assault. He did not know of the circumstances in which the assaults occurred, nor did he make any enquiries in that regard. He deposed under cross-examination that he had not seen the Agreed Facts until after he had made the decision to terminate the Appellants' employment and may not have been aware that there were different versions of the Incident until about the time that he had been served with the Appellants' evidence in these proceedings.
Mr Shearer accepted under cross-examination that a "common assault" can range from a "fairly minor event" to a "more significant event". [14] It is perhaps surprising, in those circumstances, that he made no enquiries to ascertain at which end of the spectrum the Appellants' assaults fell.
Mr Shearer had, however, been made aware of at least one of the media reports referred to above, which appears to have coloured his impression as to the seriousness of the Appellants' conduct. For example, in his interview with Mr Kemp on 26 May 2022, Mr Shearer made the observation that "it was a serious offence, it was a serious crime". [15] Similarly, in his interview with Mr McCaig on the same day, Mr Shearer described the "nature" of the offence as being one in which Mr McCaig "entered the house of a fellow colleague and assaulted him in company". [16] These descriptions are not borne out by the Agreed Facts or by the transcript of the Local Court proceedings on 6 May 2022. They are, however, consistent with the media reports.
It is apparent that Mr Shearer was acting under a misapprehension as to what had occurred during the Incident and the nature of the misconduct in which each of Mr McCaig and Mr Kemp had engaged.
This gives rise to the Appellants' contention that Mr Shearer failed to comply with the GSE Rules. Rule 38(3)(a) provides that if the employer decides to proceed to deal with an allegation of misconduct against an employee, the employee is to be advised of the details of the allegation of misconduct. In the present case, the Secretary contended that this requirement had been met with each of the Appellants having been told that the allegation was the finding of guilt in the Local Court. He argued that the Appellants had several opportunities to put forward any exculpatory information that they wished Mr Shearer to take into account, including providing their own version of events. To the extent that Mr Shearer misdescribed the offences during his interviews with Mr Kemp and Mr McCaig, they or their union representative could have corrected him, but they did not.
In circumstances where Mr Shearer had decided to proceed only on the basis of the findings of guilt, I do not consider that there can be said to have been a breach of the letter of the GSE Rules. However, Mr Shearer had formed an impression as to what had occurred during the Incident, which ultimately informed his decision as to the disciplinary action to take. As Mr Shearer was not aware of the facts of the Incident until after he had dismissed the Appellants, it can be assumed that he proceeded to make his decisions based on his understanding that the Incident amounted to a "serious crime" involving "assault in company". This was a materially flawed basis on which to proceed. Had he put his understanding of the Incident to the Appellants - other than in largely throwaway lines in his interviews with each of them - it is likely that they would have attempted to correct his misconceptions, or at the least put him on notice that additional enquiries may need to be made.
Further, during the course of the Local Court proceedings Magistrate Miller had recused himself on 25 November 2021 on the basis that in other proceedings he had "heard and made adverse findings against Mr Budda-Deen". [17] Under cross-examination, Mr Shearer accepted that he would give consideration to and look more carefully at a disciplinary matter in which a witness has previously been found to lack credit. Arguably, the failure to investigate the Incident deprived the Appellants of the ability to bring this matter to Mr Shearer's attention.
Finally, having become aware that each of the Appellants had been found guilty of common assault, and being content to proceed solely on that basis, Mr Shearer had largely made up his mind that the Appellants' employment was to be terminated. During cross-examination, Mr Shearer had the following exchange with Mr Howell: [18] "Q. Have you got that? At paragraph 17 you say: 'I didn't make factual findings regarding what conduct occurred between the appellants and Mr Budda-Deen where there were disputes in the version of events.' You didn't make findings about that because you didn't know there were disputes at that stage. That's right, isn't it? A. I didn't believe they were relevant after their plea of guilty. I accepted the plea of guilty and the offence rather than I guess a factual review of the different statements. Q. There are two things there, Mr Shearer. Can I just break them down[?] Firstly, you say you didn't resolve them because you didn't think that the factual differences were relevant. From what you've already told us you could not have known that there were factual differences in the facts sheet at that stage because you hadn't seen them at that stage. Do you accept that? A. Yes. Q. The second thing was then as I understand your evidence it wouldn't have mattered because all you needed to know was what you did know at the time, namely, that they had entered a plea of guilty to a charge of common assault. That's right, isn't it? A. Yes. Q. Because in your mind once that plea of guilty was entered the die was cast, wasn't it? A. Yes, it was. Q. It wouldn't have mattered what they said to you, you were going to remove them from the public service. That's right, isn't it? A. Based on the outcomes, yes. Can I just qualify that[?] In these matters there's always an opportunity for a response and I don't make a determination until such time as I've had that opportunity to review but the serious nature of the offence and acceptance of guilt for the common assault and a CRO of two years would have been in my mind a strong driver of the termination, yes. Q. I'm sorry, Mr Shearer, those are two different things. I've put to you the die was cast. You accepted that. I put to you that it wouldn't have mattered what they then said. You accepted that. That's right, isn't it? It wouldn't have mattered what they said. In your mind once a Corrective Services officer has entered a plea of guilty to a charge of common assault they have no place in the Corrective Services in your mind. That's right, isn't it? A. The second point, I hadn't made my determination at that point but it was a strong case for termination based on the court outcomes."
Mr Seck conceded that the process undertaken by Mr Shearer was "not ideal", but stated there had been no relevant denial of procedural fairness to either of the Appellants. Based on the matters that I have outlined above, I do not accept that submission. To summarise, the Appellants were not given a proper opportunity to understand and respond to the matters informing Mr Shearer's decisions, and in particular his comprehension as to the nature of the Incident and the objective seriousness of each of the Appellants' conduct. This appears to have been the result of Mr Shearer's view that the findings of guilt against each of the Appellants of themselves warranted the termination of their employment. On the evidence, there is no basis on which to conclude that anything they said would have changed Mr Shearer's mind.
Despite these matters, I have determined not to allow either appeal on the basis of a lack of procedural fairness. This is due to the findings I have made in respect of each of Mr Kemp and Mr McCaig on the merits.

The Appellant's case in outline

The Appellants submitted that the disciplinary system for public servants is protective, not punitive, citing Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [81]. Mr Howell contended that the question that the Commission must answer is "what is the appropriate, reasonable, proportionate…action to take in order to ensure the public interest in the proper performance of the public service is protected?" [19]
In their written submissions, the Appellants contended: "3. The Appellants each say, when the misconduct is properly considered, termination was a grossly disproportionate response to the misconduct. There were, and in the hands of the Commission are, far less harsh disciplinary sanctions that would more than adequately protect the public interest in maintaining appropriate standards of behaviour in the public service. 4. The Commission should allow the appeal and impose a lesser disciplinary sanction than termination of employment." (Footnote omitted)
Mr Howell submitted: [20] "A finding of assault, a finding of guilt of a common assault is a significant matter. It warrants attention, it warrants consideration and it warrants disciplinary action. But whether or not it justifies removal depends upon an assessment of the overall objective seriousness of the offence and the context in which it occurred." And further: [21] "The question you're asking when it comes to what alternate disciplinary action should be taken is what do I need to do to make sure that both the individual and the public service more generally understand that this is wrong, understand that this is inappropriate, understand that one needs to conduct themselves in a more professional and appropriate way, otherwise comply with the code of conduct? Finding that this is misconduct does that. Taking into account the fact that these proceeding[s], the criminal and then disciplinary process have themselves had a corrective effect, which is the evidence of each of these two gentlemen, these two gentlemen are otherwise apologetic, remorseful, contrite and, as they say, have learnt their lesson. … It would be open to the Commission to say, 'I find misconduct. Having heard the evidence, having heard these two gentlemen give their account, taking into account the fact that they entered a plea in the Local Court,' which itself is an acknowledgement of wrongdoing and expression of contrition, 'and having read their submission to Director Shearer and what they otherwise say in their interview, that the process itself has been enough of an individual sanction to properly bring home to them the inappropriateness of their conduct,' which both of them admit, 'and act as a corrective force.' That would be enough. If you don't accept that submission, then you have other disciplinary options available to you…"

The Secretary's case in outline

The Secretary contended that both appeals should be dismissed. In his written summary of case the Secretary submitted: "24. The Respondent submits that termination of the employment (without an opportunity to resign) of the Appellants pursuant to section 69(4)(a) of the GSE Act was the correct and preferable action for the Respondent to take in the circumstances and was in the public interest. The imposition of lesser disciplinary action would not be proportionate action given the gravity of the Misconduct. 25. Relevantly, the Misconduct and the disciplinary action taken must be assessed in the context of: (a) the regulatory framework governing the Appellants' employment with CSNSW as public sector employees; (b) the public confidence required in CSNSW for the good order and running of correctional establishments; and (c) the Appellants' role of a FCCO having a responsibility to guard and rehabilitate inmates who have committed and been incarcerated for serious offences, including violent offences, and lead by example in the behaviour they model. 26. The Respondent submits the Misconduct demonstrates a serious failure by the Appellants to act in accordance with the core values in section 7 of the GSE Act and Code of Conduct and caused a serious risk to the reputation of the CSNSW and its employees. The Respondent submits it could not, nor can the Commission, be confident that the Appellants would abide by the law; discharge their obligations as a member of the public service; exercise sound judgment in decision-making; model exemplary behaviour; and/or act as a positive example in the community following the Misconduct. 27. …The Respondent submits that the nature of the conduct occurring outside the workplace does not mitigate the seriousness of the Misconduct, rather it is an aggravating factor because it was conduct while off duty that involved the Appellants attending the home of a colleague in the early hours of the morning, without invitation, and then proceeding to assault him."
In oral submissions, Mr Seck contended: [22] "Can I end it in this way, Commissioner, that there's obviously a need to focus on the objective features of what has occurred here, having regard to the nature of the role and duties of Mr McCaig and Mr Kemp, and we would say that when one is dealing with Correctional officers working in Correctional New South Wales, there is a higher standard that must be applied and, as you've said in Sparkes and as you've said in other cases and other cases have said in the Commission, when we're dealing with Correctional officers, the expectation is that Correctional officers understand that their off-duty behaviour is going to be subject to the same level of scrutiny as other employees. We're not talking about there any random member of the public. We're talking about a fellow colleague who continues to work with Correctional Services New South Wales and one would assume, though there's no evidence of this, that he will continue to be employed with Correctional Services New South Wales. The fact that the effect of upholding any appeal may result in the practical reinstatement of both Mr McCaig and Mr Kemp is a relevant consideration you can take into account in assessing the appropriate penalty. That is, both of them will go back to Shortland Correctional complex. … A consideration in determining whether or not it's in the public interest to allow the appeal is not only protecting the integrity of the organisation and how it's going to impact on the organisation but how it will impact upon others in the workplace, including Mr Budda-Deen. If Mr Budda-Deen is working back there and Mr McCaig is working back there and Mr Kemp is working back there, I think one can reasonably infer that's going to create a very difficult workplace…"

General observations

While the Appellant's appeals were heard together, it does not follow that the matters arising for consideration in respect of each of them are identical. There are matters peculiar to each of Mr Kemp and Mr McCaig that require separate consideration. Before turning to those matters, I will deal with the issues that are common to each of them.
In his written submissions, and in oral submissions advanced by Mr Seck on his behalf, the Secretary raised a number of matters which were said to be "aggravating features" when considering the Appellants' misconduct. [23] These included the fact that the Appellants attended Mr Budda-Deen's house in the early hours of the morning with the intention of confronting him. Mr Seck submitted that "if one were to look at the origin of all this, if neither Mr McCaig or Mr Kemp nor Mr Mickle had come in the first place, none of this would have escalated, so that itself is an aggravating fact". [24] Mr Seck further submitted: [25] "By its very nature, that has the potential to be a combustible situation, even though they may not - and there is certainly no evidence to suggest they had the intention of escalating the confrontation into a physical altercation."
The circumstances in which the Appellants came to be at Mr Budda-Deen's house, and the time at which they attended, are in my view properly to be regarded as lending to the seriousness with which their conduct is to be viewed. I am mindful that on 6 May 2022 Magistrate Stone accepted the submission that there was "no premeditation for the act of committing an assault", a matter accepted by the Secretary, but the situation would not have "turned ugly" (to borrow again his Honour's comments) had Mr Kemp and, to a lesser extent, Mr McCaig not created the situation in the first place.
Other "aggravating features" to which Mr Seck referred were premised on the circumstances of the Incident taking place in the manner described in the first part of the Agreed Facts (which Mr Seck described as the "objective" version), without qualification for the explanations offered by the Appellants. It is not necessary to traverse that ground again. In considering the objective seriousness of the Appellants' conduct, I have done so in the context of my findings as to what transpired on 16 February 2021.
Even then, though, the Appellants' misconduct was in breach of their obligations as FCCOs. It was contrary to the behaviours required of them by the GSE Act, referred to at [11] above, their Role Description, referred to at [12] above, and the requirements of the Code of Conduct reproduced at [13] above. As Mr Seck submitted: [26] "The additional factors which one would take into account in this Commission under the public sector disciplinary appeal provisions would include not only the question of deterrence and punishment but also trying to maintain the integrity of the public service, having regard to the nature of Corrective Services and the role which is undertaken by Corrective Services officers."
I also accept the Secretary's submissions that the misconduct had the potential to bring the reputation of CSNSW into disrepute, noting that it was the subject of at least two online media reports. In his interview with Mr Shearer on 26 May 2022, Mr Kemp acknowledged that he had "brought scrutiny towards the Department both in a professional nature and the media and in the community". [27] In his interview the same day, Mr McCaig made reference to "the media release that's come about which has publicly embarrassed the Department". [28]
I attach little weight to the Secretary's submissions as to the impact of an outcome in these proceedings that would see either Mr Kemp or Mr McCaig returned to employment at the Shortland CC (see the last paragraph of the extract reproduced at [87] above). No evidence was called from Mr Budda-Deen, or indeed from anyone, as to the impact of the assaults on him (physical or psychological) or the possible consequences of the Appellants being restored to their employment. The high water mark of the Secretary's case is a quote attributed to Mr Budda-Deen in an online media article. There is no evidence that I could rely on to suggest that such factors should in any way impact on my decision as to the appropriate disciplinary outcome. There is certainly no basis on which the Commission could safely conclude that a return of either of Mr Kemp or Mr McCaig to the workplace would "create a very difficult workplace".
The highest that Mr Seck could put this aspect of the Secretary's case is that the Commission could "assume, based on common human experience, that if someone has to confront the persons who have assaulted them, there might be potential difficulties". [29] I accept that difficulties may potentially arise. However, if those difficulties are presented as being a significant hurdle to either of the Appellants being returned to their employment, more is required than asking the Commission to make assumptions based on "common human experience", even were that a concept capable of precise definition. I further observe that the assumption that the Secretary invites me to make would be premised on the version of the Incident for which he contends, which for the reasons stated above I do not accept.
I will turn now to consider the matters particular to each of Mr Kemp and Mr McCaig.

Consideration - Mr Kemp

The Secretary contended, and I accept, that the Incident would never have occurred had Mr Kemp not made the ill-informed decision, after having had several drinks, to attend Mr Budda-Deen's house in the company of Mr McCaig and Mr Mickle in the early hours of 16 February 2021 (a proposition accepted by Mr Kemp under cross-examination.) It was at Mr Kemp's suggestion that they do so. He and the others had been drinking, although under cross-examination he stated that he did not believe that it affected his decision-making skills. There is no suggestion that Mr Kemp was intending to physically assault Mr Budda-Deen, but the time and manner of his attendance created a situation of volatility which had the potential to "turn ugly". To my mind, a significant amount of the responsibility for the Incident rests on Mr Kemp's shoulders.
In his submissions to Mr Shearer 25 May 2022, referred to at [25] above, Mr Kemp stated that he was seeking professional help to address some of the underlying psychological issues that may have contributed to the Incident. He further stated: "I am not excusing my behaviour or actions; my remorse is immense and sincere. I accept full responsibility for my actions and the consequences that followed that night."
Mr Kemp made similar expressions of contrition and remorse during his interview with Mr Shearer on 26 May 2022. Mr Shearer acknowledged those expressions during the interview, in his letter to Mr Kemp of 9 June 2022 and in his evidence in these proceedings.
In his statement in these proceedings Mr Kemp deposed: "38. I accept that I should not have gone to Carl's house on 16 February 2021, however I believe my version of what actually occurred at Carl's house should be taken into account, that is, my only contact with Carl was when I shook his hand and when I place[d] my hand on his stomach. I believe that is why the Magistrate did not proceed to a conviction when I entered my guilty plea. 39. I appeal to the Commission to consider my account, my remorse and my renewed understanding of myself and impose a lesser penalty than the termination of my employment which was the most harsh that could have been given to me."
Mr Kemp deposed under cross-examination: "Yeah, okay, so, entering Carl's house. I didn't just enter Carl's house. I was invited in, so I wasn't apologising for that. I was apologising for the time that I had turned up to Carl's house, which, from the start of this whole process I've admitted was a stupid mistake and one I deeply regret. I apologise for putting Carl into that position. I apologise for Corrective Services being brought into disrepute from it. That's what I mean. I don't mean anything else. It's just poor decision‑making that's led me to that, yeah."
The weight to be attached to Mr Kemp's professed contrition and remorse is diminished by the fact, as evidenced by the extracts above, that he steadfastly maintained in these proceedings that no assault occurred inside Mr Budda-Deen's home, and that the only physical contact he made with Mr Budda-Deen was placing his hand on his torso. While Mr Kemp did not invite the Commission to make factual findings inconsistent with those of Magistrate Stone, he did not resile from his version of events but rather maintained his position repeatedly and adamantly under cross-examination. This is seen in the following exchange between Mr Kemp and Mr Seck: [30] "Q. Let me be clear on this point: you're not apologising for any assault which occurred in Mr Budda-Deen's house because you don't accept you assaulted him in Mr Budda-Deen's house? A. I don't accept that an assault took place inside Mr Budda-Deen's house. Q. So as a result, you're not apologising for that because you deny that ever occurred? A. I've always denied that occurred inside the house.
In re-examination, Mr Kemp deposed: [31] "Q. Yes. When you say you were apologising for the consequence of what's happened, did that include any assault? You were apologising for the consequences. Did the apology include an apology for the assault you admitted to? A. The one where I placed my hand around his stomach? Q. Yes, that one. A. Yeah."
There is no evidence that Mr Kemp complained about the competency of his legal representation in the Local Court, or that he sought at any time to challenge the description of events provided by his counsel to Magistrate Stone. In these proceedings Mr Kemp stated, through Mr Howell, that he was not asking for this Commission to make factual findings inconsistent with those of his Honour, but he patently did not accept them. The apologies he has offered for his conduct cannot be seen as extending much beyond him having placed his hands on Mr Budda-Deen's torso.
Consequently, I have significant reservations as to the genuineness and extent of Mr Kemp's expressions of remorse and contrition. I have assessed the weight to be attached to them accordingly.
Mr Kemp has a disciplinary history which is relevant in the context of these proceedings. On two occasions he has been found guilty of misconduct and fined for reasons including that he used more force than was reasonably necessary on an inmate. In his statement in these proceedings Mr Kemp made some effort to call those findings into question, but there is no evidence that he appealed the decisions to impose those outcomes on him at the time, whether under the IR Act or otherwise.
I am mindful that Mr Kemp suffered a financial loss from the time he was placed on special leave from 17 February 2021, and subsequently suspended.
Annexed to Mr Kemp's statement were four character references that were tendered in support of his plea in the Local Court on 6 May 2022. I was invited to consider those references in the context of the current proceedings, and I have done so.
Having regard to all of the evidence, noting in particular the discussion at [88]-[108] above and Mr Kemp's personal circumstances, I am not persuaded that Mr Kemp has put forward a sufficient basis on which a lesser disciplinary outcome should be imposed than that which resulted from Mr Shearer's decision. I find that given Mr Kemp's position, the terms governing his employment, his disciplinary history and the seriousness of his misconduct, the outcome of termination of employment, without an opportunity to resign, was appropriate.

Consideration - Mr McCaig

The evidence concerning Mr McCaig leaves a number of questions unanswered. For example, why did he agree to accompany Mr Kemp to Mr Budda-Deen's home on 16 February 2021? What had transpired, whether at the time of the Incident or previously, that Mr Budda-Deen was so hostile to him, to the point where Mr Kemp saw it necessary to ask Mr Budda-Deen not to hit Mr McCaig and where, in an apparently unprovoked assault, Mr Budda-Deen dragged Mr McCaig from his car? Moreover, why in those circumstances was Mr McCaig and not Mr Budda-Deen charged with assault?
Despite not having the answers to these questions, I am constrained to determine Mr McCaig's appeal on the evidence before me. On that evidence, Mr McCaig bears some culpability for agreeing to accompany Mr Kemp to Mr Budda-Deen's home. In his statement in these proceedings, Mr McCaig accepted that he should not have done so. In my assessment, he contributed to the creation of a charged situation.
However, on the evidence, when he and Mr Mickle were asked to leave the house, they complied. Mr McCaig was sitting in his car when he was the subject of verbal and physical aggression from Mr Budda-Deen. While Mr McCaig pleaded guilty to a charge of common assault, he stated that he did so to avoid the escalating stress and legal fees associated with the Local Court proceedings.
During his interview with Mr Shearer on 26 May 2022, Mr McCaig apologised for his conduct on 16 February 201 and for its consequence, including the media attention it attracted. He expressed remorse. There is no reason to question the veracity of Mr McCaig's expressions of remorse and contrition, which seem also to have been accepted by Mr Shearer and the Secretary.
At about the time he was placed on special leave in February 2021, Mr McCaig obtained approval for and took up secondary employment. On the basis of his evidence, he would appear to have suffered no financial loss as a result of being placed on special leave or subsequently suspended (first with, and then without pay).
Annexed to Mr McCaig's statement were four character references that were tendered in support of his plea in the Local Court on 6 May 2022. I was invited to consider those references in the context of the current proceedings, and I have done so.
Having regard to the totality of the evidence, and noting in particular the discussion at [88]-[95] and [110]-[115] above, I consider that termination of employment would be a harsh outcome in the circumstances of Mr McCaig's case.
I am not persuaded to accept Mr Howell's submissions that I uphold the appeal and make no alternative order. I accept that the criminal proceedings, the disciplinary proceedings and these proceedings have had a salutary effect on Mr McCaig. I am mindful, however, that the misconduct is a finding of guilt to a charge of common assault against a fellow employee. The public interest in maintaining the integrity of the public service calls for the imposition of a disciplinary outcome.
While Mr McCaig will be restored to his employment, I will make no order for back pay (although I recognise that this may have little financial consequence for him). In addition, Mr McCaig will be reprimanded and fined $1000. In setting the level of the fine I have had regard to those levied against Mr Kemp as referred to at [6] above.

Orders

I order that the appeal in matter 2022/00189350 be dismissed.
In matter 2022/00189357 I make the following orders: 1. the appeal is allowed; 2. the decision of the Secretary to terminate Mr McCaig's employment is set aside; 3. the Secretary is to restore Mr McCaig to employment in the classification he held immediately prior to the purported termination of his employment on 9 June 2022; 4. Order (3) takes effect from 12 December 2022; 5. Mr McCaig's service is to be taken as not having been broken by virtue of his purported dismissal, but the period between 9 June 2022 and the recommencement of his employment pursuant to Order (3) will not count as service; 6. Mr McCaig is to receive a reprimand and be fined $1000, which fine is to be paid in such manner and time as agreed between the parties; and 7. liberty is granted to the parties to apply to the Commission on reasonable notice in the event that agreement cannot be reached on the manner and time in which the fine is to be paid. If such liberty is not exercised by 22 December 2022 the file will be closed. Damian Sloan Commissioner

Endnotes

The transcript of the Local Court proceedings on 6 May 2022 comprised Exhibit R4
Tcpt, 1 November 2022 at p 57(14-15)
Statement, Owen Kemp, 4 October 2022, Exhibit OK-1 at Tab 2
Statement, Jake McCaig, 4 October 2022, Exhibit JM-1 at Tab 2
ibid. at p 48(38-40)
ibid. at p 64(29)
ibid. at p 64(28)
ibid. at p 36(11-12)
ibid. at p 57(35-38)
Statement, Owen Kemp, 4 October 2022, Exhibit OK-1, Tab 1
Statement, Jake McCaig, 4 October 2022, Exhibit JM-1, Tab 1
Tcpt, 1 November 2022 at p 60(41-45)
Tcpt, 31 October 2022 at p 63(4-9)
ibid. at p 16(5)
Statement, Hamish Andrew Shearer, 31 August 2022, Exhibit HS-1 at p 97
ibid. at p 88
Exhibit A2 at p 13
Tcpt, 31 October 2022 at p 15(6-47)
Tcpt, 1 November 2022 at p 50(11-14)
ibid. at p 61(12-16)
ibid. at p 62(24)-63(2)
ibid. at pp 44(25)-45(3)
ibid. at p 34(14)
ibid. at p 38(33-35)
ibid. at p 35(7-10)
ibid. at p 69(9-14)
Statement, Hamish Shearer, 31 August 2022, Exhibit HS-1 at p 92
ibid. at p 85
Tcpt, 1 November 2022 at p 46(18-20)
Tcpt, 31 October 2022 at pp 57(50)-58(8)
ibid. at p 59(38-45) 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: 24 November 2022

At a glance

Court

Decision date

Source

Judgment (20 paragraphs)

Cases Cited (7)