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

Background

1. The appellant commenced employment as a casual Correctional Officer ("CO") in or around May 2020 working in the Medical Escort Unit ("MEU").
2. Prior to this, on 25 March 2020, the appellant had completed a training course at the Brush Farm Corrective Services Academy. As a result of this training, the appellant was aware he was to place any work issued firearm into the designated gun safe when entering a correctional centre.
3. On 17 November 2021, the appellant along with a CO Parker were required to transport a female inmate from the EPCC, which is a minimum security facility, to a nearby medical centre. The appellant was the designated CO to carry the respondent issued firearm.
4. The appellant had not been to EPCC prior to 17 November 2021, nor was there any evidence that he had been provided with any briefing as to the layout of the EPCC.
5. The appellant and CO Parker entered the EPCC by turning off Old Bathurst Road onto another road which was not gated and contained speed signs. They parked their vehicle and then entered into a building through glass doors into what the appellant assumed to be the reception area in Area A. At this point in time the appellant was wearing a firearm. They were met by another CO who was sitting behind a glass counter and informed them where to collect the inmate from.
6. The appellant and CO Parker returned to the vehicle, drove up the road and were met by Senior Correctional Officer ("SCO") Hickinbotham who informed them where to park the vehicle.
7. The appellant and CO Parker then followed SCO Hickinbotham into the First Area building to collect the inmate. The appellant at that point was still wearing the work issued firearm.
8. Once the inmate was collected, all three CO's and the inmate left the First Area and then crossed the road and entered through a gate into the Second Area.
9. The appellant was still wearing the work issued firearm and at some point in time, SCO Hickinbotham noticed that the appellant was wearing a firearm and said words to the effect of "you shouldn't have that here", referring to the work issued firearm.
10. Once the necessary actions with respect to the release of the inmate had been completed, all three CO's left the Second Area and whilst doing so, the appellant enquired of SCO Hickinbotham as to where the gun safe was located and she directed the appellant's attention to the Gun Safe Location by pointing towards it. The appellant, CO Parker and the inmate got into the vehicle and then left the EPCC.
11. On 16 December 2021, the appellant submitted an Incident/witness report in relation to the carrying of the work firearm into the EPCC on 17 November 2021 after being requested to do so.
12. On 7 April 2022, the respondent sent correspondence to the appellant advising him that he had 7 days to lodge a submission as to why he should not be terminated.
13. The appellant in an email sent dated 14 April 2022, provided a written response to the 7 April 2022 show cause letter. In the email the applicant requested an opportunity to provide further oral submissions
14. In correspondence dated 20 April 2022, the appellant was informed that there was a typographic error in relation to that part of Custodial Operations Policy & Procedure (the "Procedure") relied on and the respondent in this correspondence requested the appellant to provide further details in relation to his response of 14 April 2022
15. On 17 May 2022, the appellant attended an interview with the respondent and on 22 June 2022 the respondent issued the Notice.
16. The appellant resigned from his position as a casual Correctional officer.

Approach

1. The Court of Appeal in Marroun v State Transit Authority [2017] NSWCA 273 set out the proper approach to the determination of appeals made under Part 7 of the IR Act, which is: 1. It is an appeal by way of fresh hearing, in that the Commission stands in the shoes of the original decision-maker; 2. the Commission is required to consider whether the written allegation of misconduct is made out and constitutes misconduct for the purposes of ss 69(1) of the Government Sector Employment Act 2013 ((NSW) (the "GSE Act"), 3. if the Commission does not find that the alleged misconduct is made out, then the appeal is allowed; and 4. if misconduct is made out, the Commission is required to determine whether the disciplinary action, in this case dismissal with the opportunity to resign, is appropriate or should it be some lesser form of disciplinary action.
2. The parties made submissions on this issue as to what is considered "misconduct" for the purposes of ss 69(1)(d) of the GSE Act, which were in all material respects the same as those put and I considered in Holland v Industrial Relations Secretary on behalf of the Department of Communities and Justice [2022] NSWIRComm 1106 ("Holland") at [9] which I will apply in these proceedings and is as follows: 9 During the course of the hearing I put, and the parties agreed, that a contravention of the policy code or conduct or legislative instrument might constitute misconduct for the purpose of s 69. However, whether it does constitute misconduct will depend on the level of seriousness of the breach. In this respect I note the reference by the parties to cases such as Eastwood v Industrial Relations Secretary on behalf of Department of Communities and Justice [2021] NSWIRComm 1014 and Allison v Commissioner of Police [2018] NSWIRComm 1005.
3. Additionally, the appellant submitted that misconduct for the purposes of ss 69(1)(d) of the GSE Act does not extend to mere mistakes, errors in judgment or in the exercise of discretion.
4. The appellant in support of the above submission, relied on the decision of Boland J of McDiarmid v Commissioner of Police [2012] NSWIRCom 100 (McDiarmid") in which he adopts the decision of Kirby J in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200-201. In this case, Boland J was considering the meaning of misconduct in the Police Act 1990 (NSW), which like the GSE Act provided a regime for the discipline of police officers dependent upon a finding of misconduct without defining 'misconduct'. At [124] and [125] Boland J finds as follows: 124 The applicant relied on the definition of misconduct provided by Kirby P in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200-201 where his Honour stated: In the 1988 supplement to the Corpus, reference is made to Beaunit Mills Inc v Board of Review, Division of Employment Security, Department of Labor and Industry 128 A 2d 20 (1956). In that case, the New Jersey Superior Court held that "misconduct" does not mean mere mistakes, errors in judgment or in the exercise of discretion or minor but casual or unintentional, carelessness or negligence. It did not mean mere inefficiency, unsatisfactory conduct, failure of performance as a result of inability or incapacity inadvertent in isolated instances or errors of judgment which were not made in bad faith or some other ingredient. Numerous other recent cases are cited to support the proposition that, in the United States, "misconduct" generally means wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts. Similar approaches to the meaning of the word "misconduct" have been taken in Australia, outside the context of professional discipline: see, eg, O'Connor v Palmer (No 1) (1959) 1 FLR 397. The primary dictionary meanings confirm that this is also the way "misconduct" is used in everyday speech. 125 Subject of course, to the statutory context in which I am required to consider the question of misconduct, I am prepared to accept Pillai v Messiter (No 2) helpfully distinguishes between what is and what is not misconduct. Misconduct does not mean, "mere mistakes, errors in judgment or in the exercise of discretion..." or "unsatisfactory conduct", but rather "wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts." I would not place too much weight on the word "obstinate", however. If the misconduct was reckless or careless indifference I think the test in Pillai v Messiter (No 2) would be met.
5. The respondent provided the following answer to a question posed as to whether it agrees or disagrees with the appellant's submission immediately above regarding mistakes etc as relevant or applicable to the definition of misconduct under the GSE Act: DOUGLAS-BAKER: In my submission, it is of assistance but it is not of comprehensive or complete assistance. It is focused upon what is not misconduct and it is focused upon matters of intention or judgment. It is not focused on what facts, matters and circumstances in an objective physical sense may constitute misconduct. It is more concerned with the intention or what was in the mind of the employee concerned. That's why I make the submission it is of limited assistance. It is limited in the sense of what it is meditating upon. It is not a comprehensive definition, nor is it put forward by Boland J in that context as being a comprehensive definition.
6. There is no material difference between the meaning of misconduct the GSE Act as it is to the Police Act, in that both Acts extend the definition of misconduct rather than providing a comprehensive definition of what it means.
7. The reasoning of Boland J in McDiarmid concerning mistakes etc is consistent with, if not part of the determination of the level of seriousness of the contravention the relevant policy code or conduct or legislative instrument.
8. Accordingly, the approach of McDiarmid is as equally applicable to the determination of misconduct under the GSE Act as it is the Police Act and I will follow it.

The Misconduct

1. The alleged misconduct which I am required to consider, is that set out in the Notice as follows: Casual Correctional Officer Laurence Lusty failed to follow correct procedure by placing his firearm in the gun safe before entering the Emu Plains Correctional Centre where inmates and children were present. In the circumstances, there appear to be grounds on which I could conclude that your conduct was contrary to section 253E(1) of the Crimes (Administration of Sentences) Act 1999 No 93; section 4 (accountability) of the Department of Communities & Justice Code of Ethical Conduct; subsection 7 Accountability (d) of the Government Sector Employment Act 2013 and rule 16.6.2.1 of the Custodial Operations Policy & Procedure.
2. The material facts are not in controversy, as at no stage did the appellant deny that he failed to place his work issued firearm in the gun safe prior to entering into the EPCC.

The Submissions

1. The respondent submitted that by entering into the EPCC with a firearm, the appellant contravened ss 253E(1) of the Crimes (Administration of Sentences) Act 1999 (the "CAS Act"), which is in the following terms: 253E Unlawful possession of offensive weapons or instruments (1) A person must not, without reasonable excuse, have in his or her possession an offensive weapon or instrument in a place of detention. [Note: Maximum penalty - 50 penalty units or imprisonment for 2 years, or both.]
2. The respondent made the following submission as to what would constitute a reasonable excuse for the purposes of ss 253E(1) of the CAS Act, in the circumstances of this matter: So the case that's presented to you is that in circumstances where there is clearly an offence provision about taking a firearm into a correctional centre without lawful excuse and that lawful excuse would, in my submission, have to come from the guidelines and policies at lease in one scenario would have to come from the guidelines and policies of Corrective Services; because it's Corrective Services who dictate where and in what circumstances a firearm can be used, carried, and what is to be done with it in the context of employment in relation to the correctional environment. When I say correctional environment, in a case like Mr Lusty's, that includes his being issued it at his home base; it includes his being using it while he's on medical escort unit duties in transit; and it includes what's expected of him or required of him when he arrives at each of the destinations.
3. The respondent then went onto to submit that appellant's conduct contravened clause 16.6.2.1 of the respondent's Custodial Operations Policy & Procedure (the "Procedure").
4. It was further submitted that the very nature of the contravention made it serious and therefore constituted misconduct with the meaning of the ss 69(1)(d) of the GSE Act.
5. The appellant rightfully conceded that he contravened the Procedure, albeit not the clause identified by the respondent, but rather clause 16.6.1.6 which relevantly provides: Firearms, ammunition, or other security equipment must be secured in a supervised locker or safe when attending a correctional centre.
6. The appellant submitted that his conduct at the EPCC on 19 November 2021 did not constitute misconduct in that he simply made a mistake. He further submitted that his conduct, objectively viewed is not 'premeditated' nor 'intentional' nor undertaken with 'indifference' to the consequences.
7. In support of this contention the appellant points to the following matters: 1. the appellant had not been to the EPCC before, was unfamiliar with its layout, was unaware of the Gun Safe Location, which was in a different position than what he had experienced elsewhere and was a different kind of gun safe to what he had dealt with before; 2. the appellant was given no training nor any instruction or briefing specifically about the EPCC, where the gun safe was or might be found, that it might be different to other gun safes that he had come across or told that things at the EPCC were different to other correctional centres so far as the absence of any designated reception area or having to wait whilst the s 24 paperwork was prepared; 3. the appellant did not ask other officers where the gun safe was located, which in hindsight he concedes he should have, because the necessary paperwork had not been prepared and he was distracted by what was happening in that regard; 4. the appellant took steps to make sure he was not near any inmates whilst he was in possession of the firearm; 5. the appellant was not told by any of the other (and more senior) officers who were involved as to either where the gun safe was or that he should put his gun there even after SCO Hickinbotham became aware that he had not put it in the gun safe; and 6. the appellant asked once outside the perimeter fence when he was leaving where the gun safe was located, confirming that he did not realise where it was.
8. In reply, the thrust of the respondent's submission that the obligation owed by the appellant was personal and that understanding this obligation he should have enquired as to the location of the gun safe and he didn't.

Determination

1. Given the admitted contravention of the Procedure, I do not need to consider whether there has been a contravention of ss 253E(1) of the CAS Act. Therefore, I am required to determine whether the contravention constitutes misconduct.
2. The respondent's submission concerning the serious consequences for the contravention of the Procedure for the storing of weapons at correctional facilities is without doubt, sound. Thus, at first blush, any contravention would be considered serious and constitute misconduct ss 69(1)(d) of the GSE Act.
3. The applicant gave uncontested evidence that he did not know of the Gun Safe Location until he exited the Second Area. This evidence is uncontroversial and is supported by the video footage.
4. It is unsurprising that the appellant did not know the Gun Safe Location, given: 1. the failure of the respondent to provide training regarding the Gun Safe Location; 2. the failure of the respondent to provide instructions as to the layout of the EPCC prior to the appellant attending; 3. it was at odds with the appellant's experience as Other Gun Safe Locations at other correctional facilities, which was corroborated by Ms Berry; and 4. it was in an illogical location.
5. The appellant would not have seen the gun safe prior to entering into Area 1 and on his unchallenged evidence did not recognise the gun safe prior to entering into Area 2. Thus, at the point the appellant enters Area 2 he has not intentionally contravened the Procedure.
6. With the benefit of hindsight, the appellant accepts that he should have enquired of the Gun Safe Location and I accept his evidence on this particularly given the prevailing circumstances. Simply put, the appellant made a mistake and one for which the respondent had no small part to play.
7. Given the above, I find that the contravention by the appellant of the Procedure on 17 November 2021 by entering into the EMCC with a firearm was not "misconduct" for the purposes of ss 69(1)(d) of the GSE Act.
8. I therefore make the following orders: 1. The appeal is upheld. 2. The appellant be reinstated to the position he held with the respondent immediately before his resignation on 12 July 2022 with continuity of employment and back pay, less any monies earned. 3. Order 2 is to take effect 14 days from the date of this decision.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 March 2023