Marroun v State Transit Authority

Delegated power to dismiss

1. I note here that It was suggested by counsel for the appellant in closing submissions that absent express evidence of Mr Robb possessing the delegation to effect a dismissal, I could not be satisfied that he in fact held the delegation, and I ought on that basis alone find the dismissal invalid and uphold the appeal.
2. True it is that if a punishment were not lawfully imposed, that is, without jurisdiction, an appeal against the punishment might well succeed on that ground alone. And it is also true that there was no express evidence brought in the proceedings of Mr Robb holding the delegation.
3. But two things of significance operate against the appellant's submission.
4. First, although the appellant had the benefit of representation by his union and then by solicitors, no question about Mr Robb's power to dismiss or notice that it was in contest had ever been raised in the extensive representations made on the appellant's behalf before the instant proceedings commenced, including earlier proceedings before this Commission. Allied to that, if there were any doubt about the existence of that delegation, it was open to the appellant, with the powers of documentary coercion at his disposal once these proceedings were on foot, to pursue that matter before hearing.
5. Second, if such a proposition is seriously to be advanced in proceedings, it is to be advanced at the outset of the proceedings, not after two days of hearing, involving the public and private purse, about facts that would very likely have been rendered irrelevant if the dismissal were itself an invalid act. Section 56 of the Civil Procedure Act 2005 makes that sufficiently clear.
6. And allied to that, had the submission been made at the outset of the proceedings in the Commission - that is, in mid-2015 - or even on the first day of hearing, it could have been addressed by the respondent. To raise it as an apparent afterthought in final submissions is simply not open.
7. The person who effected Mr Marroun's dismissal advanced, by creating a written instrument dismissing Mr Marroun, the prima facie proposition that he had the delegation to dismiss. That proposition was never contested. I proceed on the basis that the dismissal was validly effected by a person holding the delegation to dismiss, there not being a breath of evidence to contradict or even call into question that prima facie position.
8. I turn to address the substance of the appeal.

The Commission's powers in relation to a disciplinary appeal

1. Before turning to the facts of the matter I address in short compass the Commission's powers in relation to an appeal of this kind. Those powers lie in ss.100C and 100D of the Act.
2. I do not set the statutory provisions out here, but it is clear that an appeal before the Commission is an appeal de novo. That is, the Commission is to hear and determine the matter afresh on the materials before it, not simply review the decision of the initial decisionmaker: Act, s.100C; Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91; Schoeman v Secretary, Department of Justice [2014] NSWIRComm 1028 at [36].
3. The Commission is not constrained merely to accept or reject the initial decision. The Commission may impose no punishment, or another punishment altogether, including a harsher penalty than that which the initial decisionmaker imposed.
4. It is also important to understand that the proceedings on appeal are by no means confined to a consideration of whether or not the misconduct alleged actually occurred. The proceedings are far wider in scope than that.
5. The jurisprudence of the Commission in this respect has been authoritatively stated by the Industrial Court of NSW in Secretary, Department of Justice v Schoeman [2014] NSWIRComm 40; 86 NSWLR 749.
6. At [184] (3) and (4), the Court held: Sections 97(1)(f) and 98(1) provide, inter alia, for an appeal from a "dismissal" of an employee and thereby evince an intention that an appeal will lie from that determination. The Commission has a wide mandate to consider matters relevant to a review of the decision to dismiss and not confined merely to a consideration as to whether the opinion formed by the Director-General as to misconduct was correct or preferable on the material before the Commissioner: see Murray at 462 and particularly 464, distinguishing Strange-Muir v Corrective Services Commissioner of NSW (1986) 5 NSWLR 234 and Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 24 ALR 577 at 419 and 589. (4)So described the legislative scheme confers a broad discretion in the Commission under Pt 7 of the IR Act to determine an appeal having regard to any matters relevantly bearing upon the exercise of that discretion which are consistent with the objects of the Act. The confinement of the appeal to the review of an intermediate step taken in the disciplinary processes such as the opinion formed by the Director-General pursuant to s 46(2) of the PSEMA or whether an employee may have engaged in misconduct having regard to the validity of the powers to direct attendance upon a medical assessment are inconsistent with the broad remit of the Commission to hear appeals from the dismissal of an employee And at [184] (6) There is no requirement for the Commission to reach a conclusion as to the misconduct (as charged) in a disciplinary appeal as a prerequisite to the exercise of its powers under s 100C (and the exercise of its discretion). The appeal as to the decision to dismiss, which is the ultimate disciplinary sanction, must extend to all matters related to a review of that determination… (emphasis added) And further, at 184(7): Further, I am unable to discern a legislative intention to confine an appeal to, as the Commissioner found, a review only in the specific allegations of misconduct upon which punishment was based, and by implication only materials which formed the basis for that decision. Based upon the foregoing analysis of the statutory scheme in Pt 7 of the IR Act, the Commission is not entitled to disregard matters relevant to the exercise of its discretion to determine an appeal in relation to 'a dismissal' under s 100C, which include relevant evidence as to supervening facts: see Murray at 464. In this case, the December and January letters were relevant because of the protective nature of the jurisdiction and were particularly relevant to the matters referred to in s 41(a) and (b) and because they were relevant to the making of a determination under s 100C(2). …. Other matters relevant to the protective jurisdiction (and the objects of Pt 2.7 of the PSEMA) include the ongoing role and function of the respondent in the public sector…(emphasis added)
7. It is also clear from the Court's decision that the jurisdiction being exercised is protective of the public service and the public, and is not merely a punitive jurisdiction, and I expressly follow that approach.
8. While it may be thought that there remains an unresolved tension between the decision in Director General, Department of Ageing, Disability and Homecare v Lambert [2009] NSWCA 102, on which the Court's decision in Secretary, Department of Justice v Schoeman drew, and the decision of the Supreme Court in Duhbihur v Transport Appeal Board [2005] NSWSC 811; 149 IR 276, that is not my concern here; the decision of the Court in Schoeman is clear and binding on me and I propose to follow it.

Facts

1. The relevant facts may shortly be summarised as follows.
2. Mr Marroun worked as a Duty Officer. In that role he was required from time to time to be in the Revenue Room, a locked, secure room, at the respondent's Kingsgrove depot.
3. On 10 April 2015 Mr Marroun was requested by a colleague, a Miss Alimonti, to dispose of certain lost property that was, she said, in the Revenue Room. This request was not made in the Revenue Room itself and the lost property to be disposed of was not visible to Mr Marroun when the request was made. Nor was the lost property and its location in the room identified with any precision or detail.
4. The disposal of the lost property was to be effected by putting the items in a charity bin. This was a regular procedure adopted by the respondent in relation to unclaimed lost property of a low value, that is, according to the respondent's written procedures, property worth less than $100.
5. Mr Marroun had some familiarity with the disposal of lost property, and had done it before, most recently on his evidence some three months before, but was not on a day to day basis responsible for this work. Mr Marroun, along with other relevant STA officers, had been directed in writing by the Depot Manager to familiarise himself with the STA's written procedures 12 March 2015, about four weeks before this incident.
6. Mr Marroun did not dispose of the property on the day he was asked to do it; he advised Miss Alimonti that he was busy that day but would do as she requested the next day. The next day, 11 April 2015, Mr Marroun took two plastic bins full of property items that were standing on a desk in the Revenue Room and placed the items in his car. There was no other lost property in the Revenue Room at the time that he did this.
7. At all times the Revenue Room was filmed by a CCTV camera and Mr Marroun knew this.
8. Each piece of property in the two bins Mr Marroun removed had tags and slips on it identifying where it was found. It may be that some items also had names of persons to whom the property, from a general examination, appeared to belong.
9. The CCTV footage admitted into evidence shows that an hour before he disposed of the two bins full of property, Mr Marroun passed through the Revenue Room on his way to, it appears, the toilet, and glanced through the items of property. It was put in submissions that he glanced 'at' the items, but that is not correct; he delved into one of the bins and turned over and picked up several items, including a squarish black item which may or may not have been an iPhone or a wallet. This delving took him about twenty seconds and was certainly enough for him to gain a general impression of the items.
10. About an hour later, the CCTV footage discloses, not having entered the Revenue Room or looked at the bins again in the meantime, Mr Marroun entered the room and forthwith, without further examination, carried the two bins one by one to his car. He said all the items were loose in the bins and that he tipped the contents of the bins into his car boot loose. He was anxious to say in his oral evidence - assisted with a physical demonstration - that he did not and could not have seen any of the items as they went into his car boot because he held the bins at or above his eye level. Mr Marroun putting the items into his car is not shown on the CCTV footage. What the CCTV does show is that each bin was quite heavy, and that Mr Marroun carried each out to his car at a level below waist height.
11. Mr Marroun's evidence was that when, at the end of his shift, he went home, he had forgotten about the items to be disposed of and simply left them in the boot of his car.
12. His evidence was that only later that night did he remember the items; he mentioned their presence in the boot of his car to his wife, who undertook to him that she would deal with the items the next morning. His evidence was that he did not describe or identify any of the items to his wife in any way at all.
13. As the evidence of Mr and Mrs Marroun then unfolded, the next morning Mrs Marroun took the items from the boot of Mr Marroun's car while he was asleep. While Mr Marroun gave evidence that the items were all loose in the boot, Mrs Marroun - the next person to see the items - said that the majority were in fact inside plastic bags. She took the items from the boot, she said, and put them in other plastic bags she had carried out to the car with her. She put the bags she had filled with items in the yard of their house, but not in her car.
14. After Mr Marroun had gone to work at about 12:30 pm, she returned to the items and transferred them from where they were, already inside bags, into her car. At that point she noticed certain things among the items, including some chocolates. She says that she then went through the bags more carefully 'so as to dispose of perishables since they weren't to be disposed of at the bins'. The chocolates were small individually wrapped 'Freddo Frog' chocolates of the kind sold in workplaces to raise money for charity, and were in a cardboard container of the style commonly used for that purpose.
15. While doing this, she said, Mrs Marroun found two mobile phones amongst the items, including an iPhone.
16. The chocolates, Mrs Marroun decided, should not be put in a charity bin as they would go bad, so she elected to give them to her sister-in-law. She also said that she knew that mobile phones did not go to a charity bin but to a 'separate mobile phone recycling bin that I have seen at mobile phone shops'. For that reason, she said, she extracted the phones from the items she had already put into bags and took the phones into the family home. She then 'out of curiosity' put the iPhone on a charger in the family lounge room.
17. She also decided that the lost property slips and tags on the items should be removed. She removed them, she said in her evidentiary statement, 'as I did not know what they were supposed to mean'. She tore them all off and put them in a separate plastic bag because, she said in cross-examination, 'I didn't have a shredder.'
18. She noticed a number of wallets which she said that she did not look through, but some of them, she noticed, 'looked like they contained cards'.
19. The items she did not keep or give to her sister-in-law she took in her car to some charity bins outside a supermarket immediately down the road from the Marroun house (but which bins she said were unknown to Mr Marroun) and, as the five charity bins there were full, she left the bags containing the items next to the bins.
20. At no time did she tell Mr Marroun that she had taken the items from the boot of his car; according to his evidence and hers, Mr Marroun drove the car back to work at or around 12 noon the next day without knowing or even asking whether the items were still in the car boot or not.
21. That evening, after Mr Marroun's return from work, nothing whatsoever was said between the Marrouns about the chocolates she had taken to her sister-in-law or the two mobile phones that were, on her evidence, still in the family lounge room.
22. The next morning Mr Marroun received a call from an officer of the STA to say that the items he had taken were not to be disposed of, and should be returned to the depot.
23. On being told that, Mr Marroun then brought back to the STA the bulk of the items. His evidence was that he told his wife that the items must be collected and taken back. Mrs Marroun then told him about the chocolates; the Marrouns drove to Mrs Marroun's sister-in-law's house and retrieved them; on Mrs Marroun's two accounts of this, she either told her sister-in law when she arrived about the chocolates having to be returned or she rang her before they got there and alerted her to that fact. Mrs Marroun also told Mr Marroun - again for the first time on their evidence - that two phones, including an iPhone, were in the family lounge room. They were also returned.
24. There were some items not returned to the STA; both Mr and Mrs Marroun's account was that they had been taken by persons unknown from the plastic bags left by the charity bins by Mrs Marroun. The items not returned were of negligible or no value.
25. The chocolates were returned to Mrs Marroun, she said, by her sister in law in a different bag to the container in which she had given them to her, her sister-in-law having thrown that container, a charity cardboard box, away; the chocolates came back in a canvas or cloth bag. A white envelope containing cash was in this bag that Mrs Marroun said she got back from her sister-in-law and which Mr Marroun returned to the STA.
26. How the cash in its white envelope came to be transferred from the original charity box which, Mrs Marroun said, her sister-in-law threw away into another container, a material bag, and returned to the STA without anyone noticing it was not explained. Mr and Mrs Marroun gave evidence that they both knew absolutely nothing about the money. Mrs Marroun said that the chocolates she got back from her sister-in-law appeared to be about the same in number as those she had given her, although she emphasised that she didn't open the bag itself.
27. The reason that Mr Marroun was asked to return the items he took to his car was that they were not items that were to be disposed of at that time, but items that had yet to be cleared for disposal. They had been left on the table in the Revenue Room by a Miss Corsham, whose job it was to clear the lost property items for disposal.
28. So far as the items included mobile telephones and wallets containing credit cards, as on all the evidence they did, the written policy directive by STA was very clear: those items were to be locked in a safe, not just kept in the Revenue Room, even though that room was locked. The terms of the policy at point 2.13 are absolutely unequivocal in that regard.
29. Miss Corsham was the STA officer who on her own evidence had 'the lead role in the handling of lost property' at Kingsgrove depot and occupied a position which was designated as one of the 'Lost Property officers' at the depot.
30. In evidence, Miss Corsham ultimately conceded that in failing to place the items of value in a safe but rather leaving the items on the desk in the Revenue Room, she was in breach of her obligations under the STA's written procedures.
31. Miss Corsham did not suffer any disciplinary sanction at all for having breached the STA's written policy with respect to the items, even though the items were in her charge and it was, on her evidence, part of her job to deal with the items.

The process undertaken by the Respondent

1. On inquiry before this Commission, two things are apparent.
2. First, Mr Marroun did not himself effect a breach of his obligations under the STA's lost property procedures, as alleged against him, by his action of actually removing the lost property from the revenue room of the Kingsgrove bus depot. He removed what he thought were items that were to be disposed of according to the established local procedure. He took the wrong items; the overall result was that the procedure was breached.
3. He removed the items in the following circumstances: that he was asked to remove unspecified and unidentified lost property items from the Revenue Room by a colleague; that there was only one body of lost property in the room when he went there; that the disposal of unwanted lost property was not a task that he regarded as a primary task, and was not his usual work at all, and that the material he actually took should not, if other officers, and specifically Miss Corsham, had done their job in accordance with the STA procedures, have been left there to be taken in the first place.
4. Nobody has been harmed by his conduct; no public complaints were made to the STA about any of the property; the STA's reputation was not harmed, and so far as the property had value, most of the items were returned to the STA to do with as it saw fit.
5. So far as Mr Marroun's conduct is assessed against STA procedures he was, it might be said, careless in not checking the materials more thoroughly, or asking someone if they really were the materials he had been asked to dispose of. Indeed, that accords with the finding of fact made against him.
6. For this he may have deserved some form of disciplinary sanction; something perhaps in the order of a reprimand for not taking better care to check on the property of which he disposed, but a sanction well short of dismissal.
7. For him to be dismissed for his conduct in removing the wrong items - which is all that he was accused of and all he was found to have done - was disproportionate and inappropriate.
8. It was disproportionate and inappropriate in its own right, and it was doubly so when one considers that Miss Corsham, whose responsibility the proper care of the property actually was, and who had, in direct breach of STA procedures known to her, left the property in a place where it was (as events proved) at risk of being mistaken for disposable property, was given no disciplinary sanction at all.
9. If breach of the STA's policy were an offence warranting dismissal, the failure to even reprimand (let alone dismiss) Miss Corsham for a breach of a written procedure which constituted a breach of her direct and specific obligations under the procedure, where Mr Marroun's conduct was not - was inexplicable and remained unexplained.
10. Of course, there is no hard and fast rule that renders a decision to dismiss unfair because others who may have committed similar offences are not given the same punishment: Martin Evans v NSW Police [2005] NSWIRComm 404. However, a gross incongruity between the approaches to two different employees invites a suggestion that the punishment is inappropriate.
11. Nobody applying themselves properly to the review process that Miss Eames was tasked with carrying out could have failed at least to consider whether, in assessing the appropriate sanction to be imposed on Mr Marroun, other employees, whose conduct in breach of the written procedures had patently contributed to the loss of the property with which the STA was concerned, had been subject to disciplinary sanction. That was a simple requirement of fairness. There was no such consideration.
12. But even leaving comparisons with Miss Corsham's conduct aside, the conduct the STA found Mr Marroun had actually committed did not on its own warrant dismissal. No reasonable person could have found that the allegation that was actually put against Mr Marroun and the facts the STA actually found proven warranted termination. I repeat the finding of fact that Mr Welzel actually made: that Mr Marroun 'removed lost property items from the Kingsgrove revenue room without authority. He failed to check that he had the correct items set aside for disposal and as a result, some of these items were not returned to Kingsgrove Depot.' That is specifically a finding of carelessness, not conscious bad intent. Miss Eames' finding - and recommendation to the delegate - that termination was warranted on the facts that the STA actually found proven defies any reasonable analysis.
13. Although Miss Eames in her written report to the delegate recommended dismissal as a punishment, she nowhere in that report assessed whether what Mr Marroun had done could be characterised as misconduct. Because the allegation against Mr Marroun was that he had committed misconduct, that had to be a fundamental consideration of any properly-conducted review, once the facts had been established. Had that assessment been carried out by Miss Eames, the correct position - that it was not misconduct - would immediately have been evident.
14. The STA's conduct in this matter invites the conclusion that the officers tasked with making a decision on Mr Marroun's employment believed that Mr Marroun had in reality taken the property deliberately for his own purposes in the knowledge that it was not property to be disposed of, but that the STA lacked the courage of its convictions to put that as an allegation to Mr Marroun.
15. However, these appeal proceedings do not by any means end with an analysis of the respondent's decisionmaking process. There are other matters that the Commission must address.

Considerations the Commission must undertake

1. As is quite clear on the authorities, the Commission is bound, in an appeal of this kind, to have regard to any matters relevantly bearing upon the exercise of its discretion which are consistent with the objects of the Act. The appeal is expressly not confined to the review of the allegation and the decision made by the employer.
2. This appeal is a disciplinary decision taken in the context of the employment relationship, and certain inquiries the employer was bound to undertake, and this appeal seeks re-establishment of the employer-employee relationship. The Commission must necessarily consider all matters relevant to that inquiry and the relationship itself.
3. Two fundamentally important and relevant matters are, first, Mr Marroun's own conduct in dealing, as an employee, with his employer about the matters raised with him pursuant to his obligations under his employment contract, and, second, his post-employment conduct.
4. There is a third relevant matter to these appeal proceedings, and that is Mr Marroun's conduct before the tribunal which he asks to exercise discretionary powers in his favour.

Mr Marroun's conduct in relation to his employer

1. The STA initiated an inquiry into what had occurred in relation to the property in the blue bins. It was quite right to do so and indeed obliged to do so; property which was not cleared for disposal pursuant to its written procedures had been disposed of.
2. That inquiry extended, very properly, to asking Mr Marroun questions about what he did in relation to the property.
3. Mr Marroun had an absolute obligation to be candid with his employer about every aspect of that inquiry. And that obligation is not significant only in assessment of past conduct, but has a bearing on the future of the employment relationship; an employee who is not candid with an employer destroys the ability of the employer to trust the employee again in the future: Telstra Corporation Limited v Streeter [2008] AIRCFB 15 at [17].
4. It is apparent that Mr Marroun was not candid. Rather, he provided to the STA a partially fabricated account of what occurred. He invited the STA to speak to his wife, Mrs Marroun, and the STA did so. It can properly be inferred that Mr Marroun knew that his wife also gave a partially fabricated account of what occurred to the STA.
5. Some parts of the account he gave were not fabricated; his account of how he came to take the property from the Revenue Room in the first place appears consistent with the facts, and very probably the account of the bulk of the items ending up in plastic bags outside charity bins, where they were subject to unknown third parties going through them, was true.
6. The elements of the account that were fabricated are all patently designed to avoid it emerging that Mr Marroun knew very well, before he received the call from the STA advising him that he had taken the wrong items, that his wife was dealing with the lost property items he had brought home as if they were hers to deal with as she wished, and that he condoned her doing so.
7. Mr Marroun determined to conceal the fact that he had that knowledge from the STA, and ultimately, when he repeated his account in evidence in the appeal proceedings, from the Commission.
8. There are a range of bases on which it is apparent that the accounts given by Mr Marroun and his witness Mrs Marroun to the Commission, in which they effectively repeated the substance of what they had told the STA, were untrue, and therefore that the accounts they gave to the STA were untrue.
9. Those bases include the nature, style and content of the witness statements which each adopted as their evidence in the Commission, and which repeated, with some elaborations, what they had told the STA. They include the manner and demeanour of Mr Marroun and his witness Mrs Marroun in giving their oral evidence before the Commission. And they include the fact that the account that Mr Marroun gave to the STA, and which he and his witness Mrs Marroun repeated with some elaboration to the Commission, was in a range of details surrounding one central element, glaringly improbable on its face.
10. I address those matters in turn, although they form strands of a single overall conclusion, that being that Mr Marroun's evidence and the account he gave to the STA are not credible.
11. Mr and Mrs Marroun's statements of evidence, which each adopted in the Commission, were in good part not statements of evidence but rather a series of arguments and factual propositions patently designed to head off the single inescapable inference about the conduct of the Marrouns to which I advert above; that is, that Mr Marroun knew very well that his wife was dealing with the lost property items as she wished and condoned, at least, that conduct. He knew it before he received the call from the STA alerting him to the fact that he had taken the wrong items. It was that knowledge that he wished to conceal from the STA and from the Commission.
12. Mr Marroun's evidentiary statement was unreliable. For example, in his evidentiary statement Mr Marroun actively advanced, in deliberate and specific terms, that he knew certain things about the STA's lost property procedure at the time of his removing the property items, and his statement then argued his possession of that knowledge as a basis upon which his appeal should succeed. Paragraph 10(b) is an example. Mr Marroun there expressly says that he knew at the time certain specific provisions of the respondent's lost property procedure, and uses that knowledge to explain his conduct and to attempt to persuade the Commission that his conduct was not culpable.
13. In saying that, Mr Marroun advanced evidence flatly contrary to other evidence he gave, that is, that he did not know the terms of the respondent's written policy.
14. When this inconsistency in his evidence was pointed out, Mr Marroun immediately disavowed the relevant part of the statement, saying it was not correct, and sought to blame his solicitors for advancing the evidence. What else he disavowed in his statement was not explored by the STA's advocate.
15. Mrs Marroun's statement was also not so much a statement of evidence as a series of propositions patently designed to head off the inference that her husband knew very well that she was dealing with the lost property items as she wished before he received the call from the STA alerting him to the fact that he had taken the wrong items.
16. In part that conclusion is derived from the demeanour and manner of giving evidence to the Commission adopted by Mr and Mrs Marroun.
17. Mr Marroun in his oral evidence to the Commission was a far from impressive witness. He was argumentative, dismissive of questions, and repeatedly volunteered self-serving evidence which was not responsive to questions, but which in good part was argument advanced to demonstrate that he could not have known what the items were and that he had no knowledge of the detail of what his wife did with them until the call from the STA.
18. Mrs Marroun also presented unfavourably as a witness. Her manner conveyed a distinct impression of weighing her answers in cross-examination against a matrix of what she thought would suit the appellant's case and would fit with what she had already said to the STA in its investigation. That may not be wholly evident on transcript, which does not convey pauses, facial expression and manner, but it was evident in the court.
19. It also emerged, although only after a question from the Commission, that Mrs Marroun had read Mr Marroun's witness statement before giving her evidence. I do not find her evidence implausible for that reason, but that fact means that so far as her evidence appeared tailored to suit Mr Marroun's evidence, as it did, her being aware of his statement of evidence might in part lend support to that view.
20. I am of course wary of forming views about the credit of witnesses from demeanour alone, being mindful of what was said by Kirby P in Chambers v Jobling (1986) 7 NSWLR 1 at 9. However, the impression, in the cases of both Mr and Mrs Marroun, that they were fabricating parts of their evidence was overwhelming. My observation of their demeanour and manner of giving evidence is an essential part of the finding that their evidence is not to be accepted.
21. The conclusion that Mr Marroun, and also Mrs Marroun, were not truthful witnesses is also based on the inherent improbability of the account they gave.
22. Amongst other matters, and as examples, I am not able to accept the evidence that Mr Marroun had no knowledge at all of whether the items were still in his car boot when he left for work at noon the next day, and that he made no inquiry whatsoever of his wife about that, and that she said nothing whatsoever to him about whether she had taken them from the boot of his car or not. I cannot accept that Mrs Marroun removed and kept in a separate plastic bag for discreet disposal - as she said in her evidence - the property tags 'because she didn't know what they were'. I cannot accept that she decided to go through the bags of property only because she was concerned that there might be other perishable items that ought not go in a charity bin. I cannot accept that she kept the two phones, putting the iPhone on a charger in her living room, with the intent of later taking them to a phone recycling depot; nor, far more importantly, can I accept that Mr Marroun knew nothing of her keeping the phones. I cannot accept that he knew nothing, until after the call from the STA as was his evidence, of Mrs Marroun taking the chocolates to his sister's house. I cannot accept that an envelope with cash in it came back to the STA having travelled through the hands of both Mr and Mrs Marroun and her sister-in-law, and having changed containers in the meantime, without Mr or Mrs Marroun knowing of it. On the balance of probabilities the position is that they knew of the money and thought they should return it. I cannot accept that Mr Marroun in tipping the items into his car boot did not see any of them as he volunteered in evidence; it would have been physically impossible for this to occur as he described it. As I say, these are merely some examples of implausibility.
23. All of these implausible propositions had one purpose - to suggest to the Commission that Mr Marroun knew nothing of his wife's dealings with the property for her own purposes. Mr Marroun in his oral evidence expressly stated that to be the case. I am unable to accept that it was so.

Conclusions to be drawn from the evidence

1. I emphasise that I do not draw the conclusion that Mr Marroun giving untruthful evidence, so far as it contained the evidence that he knew nothing of his wife's dealing with the lost property items, necessarily means that the reverse proposition is true, and Mr Marroun for that reason alone can be taken to have known of her conduct. I do not do so, even though there is a line of authority that suggests that just such a course is available: Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [114]; Tweed Shire Council v Hancomatic Music Pty Ltd [2007] NSWCA 350; (2007) Aust Tort Reports 81-922 at [166].
2. Rather, I form the view based on an overall assessment on all of the evidence that it is inescapable that Mr Marroun was well aware before receiving the call from the STA that his wife had dealt with the property for her own purposes.
3. Equally, I am well aware that Mrs Marroun is not an employee of the respondent, and her using and dealing with the lost property items of itself alone, absent any knowledge of that on Mr Marroun's part, is not attributable to Mr Marroun. But that is not what happened here. Mr Marroun did know of and condone her conduct, and then he told untruths about that knowledge to his employer and the Commission. That behaviour is attributable to Mr Marroun.
4. Indeed, I think it more likely than not on the evidence that Mr Marroun took the property home, rather than depositing it in the charity bins that his wife said were near their home, specifically for that purpose. One can understand that Mr Marroun might well have said to himself: 'this material is going into the charity bin anyway, why ought she not have first access to it if I am going out of my way, in my own time, to deliver it to a bin?' However, he was not entitled to do that with the property.
5. However, I do not rely on that conclusion in reaching a decision on the outcome of this appeal. Even if the conclusion that Mr Marroun took the property home for the purpose of allowing his wife to go over it were wrong, the fundamental problem remains; Mr Marroun did not disclose to his employer, when the employer was making its inquiries about the incident, that his wife had gone through the items and used some of them for her own purposes with his prior knowledge. Presumably he thought it would reflect badly on him. That was a fundamental breach of his obligations under his contract of employment. It has, as I say above, a significant effect going forward. It is destructive of the necessary confidence between employer and employee.
6. It stands entirely against the Commission taking any step to restore the employer-employee relationship.
7. That is the more so given that the jurisdiction exercised by the Commission is protective of the public service.
8. There is another, and related, effect of Mr Marroun's conduct. The Commission in exercising its powers under s.100C is exercising a discretionary power, albeit a statutorily-guided discretion. Mr Marroun has come before the tribunal exercising that discretion and given a fabricated account to cause the tribunal to exercise a discretion in his favour. That is conduct which disentitles the appellant to the discretionary remedy he seeks, even if on a general view of the facts it might have been available to him: Gilmore v Allied Express Transport Pty Ltd [2006] NSWIRComm 16.
9. I do not overlook the decision of the Court in Schoeman so far as it says that the determination of whether misconduct did nor did not occur will be a significant matter in an appeal such as this. But it is apparent from that decision that that is not by any means the determinative question. I have given due weight - that is, significant weight - to the fact that while Mr Marroun did as a matter of fact what he was accused of doing, what he was accused of doing could not properly have been seen as misconduct. However, that is outweighed by his disentitling conduct toward his employer and the Commission, and his post-employment conduct, a matter to which the Court in Schoeman expressly held the Commission was able to have regard in matters of this kind, and to which I will return.
10. Mr Marroun's conduct both in relation to his lack of candour with his employer and his lack of candour with the Commission has precluded the appeal being determined in his favour. The appeal must be dismissed.

Post-employment conduct

1. Even were I wrong about that conclusion, there could be no restoration of the employment contract for another reason.
2. Mr Marroun was dismissed in May 2015. On 14 July 2015, he made two posts on Facebook which remained publicly visible from that date at least until October 2015 when they were seen by officers of the STA. In the first he referred by name, although misspelt, to Mr Michael Reardon, General Manager Fleet Operations of the Respondent, and to Mr Paul Welzel, the investigating officer. In the second post Mr Marroun, speaking of the STA, his employer, at large rather than of Messrs Reardon and Welzel, says that 'they' are 'bastart' and 'they are really criminal with stars.' These are not posts put up in the heat of distress about a dismissal and taken down again, but posts put up publicly two months after the termination and left there.
3. Of course the employment relationship is capable of sustaining some stresses and strains: Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. However, to ask an employer to place trust and confidence in a public servant who has, and not in the heat of the moment, publicly characterised that employer as 'bastard' and 'criminal with stars' is not within the maximum elasticity even of the employment contract. Again, that is the more so given that the jurisdiction here exercised is protective of the public service. Even were I wrong in all the conclusions to which I have come above, reinstatement or re-employment would not be possible.

Summary and disposal of the proceedings

1. While I have given significant weight to the fact that the conduct of Mr Marroun as it was characterised by the STA was not conduct warranting dismissal, to his length of service, and his personal and family circumstances, it is inescapable that Mr Marroun's deliberate lack of candour with his employer about a matter which he was obliged to disclose means that his appeal cannot succeed. His lack of candour with the Commission equally disentitles him to any remedy from the Commission.

Orders

1. The appeal is dismissed. PETER NEWALL Commissioner

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: 04 February 2016