McFadyen v Industrial Relations Secretary in respect of the Department of Climate Change, Energy, the Environment and Water

Industrial Relations Commission (NSW)|2024-03-12

DECISION

James McFadyen was employed with the Lord Howe Island Board ("Board"). His duties included conducting inspections of the airport on Lord Howe Island. On the weekend of 5 and 6 November 2022, Mr McFadyen failed to carry out the inspections he had been rostered to perform. He subsequently created records which created the impression that the inspections had in fact been conducted. His employment was terminated following a finding that his conduct amounted to misconduct.
Mr McFadyen challenged his dismissal, filing an application pursuant to s 84 of the Industrial Relations Act 1996 ("IR Act"). He seeks an order reinstating him to his employment.

Determination

I have determined to dismiss the application. My reasons follow.

Events leading to dismissal

On 4 November 2022, Mr McFadyen had been requested by Lord Howe Island Police to assist in the recovery of a deceased male's body from the summit of Mt Gower. It resulted in him working a long day, which he stated left him exhausted.
On the weekend of 5 and 6 November 2022, Mr McFadyen was rostered to conduct the ASIs for the Lord Howe Island airport. He did not, however, do so. This was discovered on 7 November 2022 by Mr Wise, when he accessed the Logbook to record the ASI he had conducted that day and observed that there were no entries for the preceding weekend.
There was controversy as to what followed, which is explored below. For the purposes of providing background, it is enough to note that on 7 November 2022: 1. Mr Wise approached Mr McFadyen, and they had a conversation about the fact that the ASIs had not been conducted and the lack of Logbook entries for 5 and 6 November 2022. 2. Pages of the Logbook were left blank for each of 5 and 6 November 2022. 3. Mr Wise completed the Logbook entry for 7 November 2022. 4. Mr McFadyen completed entries in the Logbook for 5 and 6 November 2022. 5. Mr Wise reported the matter to Ms Christensen, who assisted him to prepare an incident report ("Incident Report"). The document described the incident in the following terms: "I (Barry Wise) presented to work at 6:30 am Monday 07 November to undertake an aerodrome inspection, for which I am is responsible Mon - Thursday weekly. I noticed that the record book for aerodrome inspections was not complete for Saturday and Sunday. After the inspection was completed and I returned to the office, I checked the roster to see which ARO had been rostered on, and identified that Jim McFadyen had been rostered on. Barrie asked Jim if he had the information from the weekend to enter into the formal record, as sometimes ARO's take the info in a notebook and transfer it later. Jim replied that 'Fitz was on' (referring to Ian Fitzgerald, one of the other ARO's) I replied that no, that he Jim was on rostered on. I advised I would leave the pages blank as I was aware that the report must be completed daily as per CASA regulations. Jim asked for two pages in the book to be left blank so that he could complete them. I noticed later that he had put information in as if he had inspected the airstrip. I also observed the plane was listed as being present…on Saturday morning that I was aware had departed the island on Friday 11:30am." (Reproduced verbatim) 1. The Incident Report was signed by Mr Wise on 7 November 2022 and bears a time of 9.00am.
Also on 7 November 2022, Ms Christensen attempted to contact the Civil Aviation Safety Authority ("CASA") to report the fact that the ASIs had not been carried out. After playing "phone tag" with a person at CASA, she sent an email to him on 9 November 2022 with the subject "LHIB - self reporting non-compliance". The email stated that ASIs had not been undertaken on 5 and 6 November 2022 and that "the ARO rostered on for the weekend…entered data into the record book as if he had done the inspection."
On 9 November 2022, Mr McFadyen was called to attend a meeting with Debbie Johnsen, then on secondment to the Board in the position of Senior Manager, Business and Corporate Services, and Ian Faulks, the Principal Industrial Relations Advisor of the Department. During the meeting, Mr McFadyen was handed a letter dated 8 November 2022 signed by Naomi Stephens, Acting Deputy Secretary of the National Parks and Wildlife Service, which forms part of the Department. The letter stated, in part: "I have received a copy of an Incident Report dated 7 November 2022, in which it is alleged that on Saturday, 5 November 2022 and Sunday, 6 November 2022 you failed to carry out your role as Aerodrome Reporting Officer when rostered to perform aerodrome serviceability inspections on Lord Howe Island. I am further advised that when this was made known to you on Monday, 7 November 2022, you asked that two pages of the logbook be left blank so that you could retrospectively record the inspections in the logbook. The appropriate action in accordance with the Department's workplace issues process is that an assessment be undertaken to identify the facts of the matter and determine an approved course of action in relation to the allegations made in the Incident Report. … Having taken into consideration all of the information available to me, due to the serious nature of the allegations I have taken the decision to suspend you from duty, with remuneration, in accordance with Section 70(2)(a) of the Government Sector Employment Act 2013. …"
An "initial assessment" into the events of 5, 6 and 7 November 2022 was conducted by Kathryn Mulligan, Program Manager Case Management with the Department. Mr McFadyen was interviewed by Ms Mulligan during the initial assessment. In an undated document titled "Initial Assessment form" ("Initial Assessment Report"), Ms Mulligan summarised the information provided by Mr McFadyen as follows: "Mr McFadyen attended an interview on 29 November 2022, and with Mr McFadyen's consent, the interview was audio recorded. Mr McFadyen stated that he did not complete the aerodrome serviceability inspections on 5 November 2022 and 6 November 2022, respectively. Mr McFadyen stated that he completed the Logbook as though he had conducted the inspections and did so at the recommendation of Mr Wise. According to Mr McFadyen, it was Mr Wise who said to him words to the effect, 'don't, we'll get demerit points; it's a big problem; just make it up or we'll be in huge trouble'. According to Mr McFadyen, he deferred to Mr Wise's expertise as an ARO. Mr McFadyen stated that in completing the Logbook, he did so by making educated guesses and checking notations on 4 November 2022 relating Notams and planes that he believed to be on the ground. Mr McFadyen stated that he had noticed planes grounded when he went home on Friday evening after a body recovery operation. Mr McFadyen stated that he looked up the Bureau of Meteorology to ascertain the weather conditions for 5 November 2022 and 6 November 2022, respectively and noted them in the Logbook. Mr McFadyen stated that even though he rostered for the weekend of 5-6 November 2022, it was Ian Fitzgerald who should have conducted the inspections. According to Mr McFadyen, this was because Mr Fitzgerald and Mr Wise had swapped rosters the week before which put the roster back one week. According to Mr McFadyen, this was noted on the whiteboard, which is where all changes are noted, not the roster which is pinned to the noticeboard."
In the Initial Assessment Report, Ms Mulligan concluded that there was sufficient evidence to warrant the following matters being "referred to Industrial Relations for disciplinary action and/or response": 1. that on 5 and 6 November 2022, "Mr McFadyen failed to complete his duties as the rostered ARO"; and 2. that on 7 November 2022, "Mr McFadyen made retrospective entries and falsified documentation in the Aerodrome Serviceability Logbook…for inspections he had not completed".
On or about 15 December 2022, Mr McFadyen received a letter from Ms Stephens dated the same day. The letter informed Mr McFadyen that as a result of the Initial Assessment, "sufficient evidence [had] been obtained" to suggest that he may have engaged in misconduct. The allegations of misconduct were set out as follows: "1. On 5 November 2022 and 6 November 2022, respectively, you failed to fulfil your duties as the rostered Aerodrome Reporting Officer at Lord Howe Island Airport. 2. On 7 November 2022 you made retrospective entries and falsified documentation in the LHIB Aerodrome Serviceability Logbook for inspections you had not conducted."
The letter went on to inform Mr McFadyen that Ms Stephens had determined to deal with the allegations as "matters of misconduct" under s 69 of the Government Sector Employment Act 2013 ("GSE Act"). Mr McFadyen was invited to make a written submission in response to the allegations.
Mr McFadyen's response was contained in a letter dated 12 January 2023, which was provided to the Department on 17 January 2023. Mr McFadyen denied the allegations. His response was, in broad terms, consistent with the information he had provided to Ms Mulligan. In summary: 1. in response to the first allegation ("Allegation 1"), Mr McFadyen stated that he "was not rostered on shift on 5 and 6 November 2022". He claimed that Ian Fitzgerald, a Field Officer with the Board, had been rostered on. He said that he had "confirmed" this fact on the evening of 4 November 2022, by checking a whiteboard in the office which was said to reflect current roster arrangements; and 2. in response to the second allegation ("Allegation 2"), Mr McFadyen acknowledged that he had completed the Logbook entries for 5 and 6 November 2022, but claimed that he was following advice he received from Mr Wise, who he described as "the 'expert' or the 'go to' person with the most knowledge and experience of all things related to aerodrome operations".
By letter dated 17 February 2023, Ms Stephens informed Mr McFadyen that she had formed the opinion that he had engaged in misconduct and that the "most severe action" which she was proposing to take was to terminate his employment after giving him the opportunity to resign. Ms Stephens informed Mr McFadyen that she was "affording [him] the opportunity within 14 days of the date of this letter to respond in writing or orally or partly in writing or partly orally to [her] findings and the proposed action that [she was] considering".
On 2 March 2023, Mr McFadyen sent an email to Mr Faulks attaching a "submission". On its face, the submission is a response to the Initial Assessment Report, although it appears to have been accepted by the Department as a response to Ms Stephens' letter of 17 February 2023. On the cases presented by the parties, nothing turns on this. In broad thrust, Mr McFadyen maintained the position set out in his letter of 12 January 2023. In support of his contentions in respect of Allegation 2, Mr McFadyen provided a "statement" of Utia Makiiti, the Field Supervisor, Infrastructure Engineering Services for the Board. In that document, Mr Makiiti described his recollection of the conversation he witnessed between Mr McFadyen and Mr Wise on the morning of 7 November 2022.
In his email to Mr Faulks attaching the submission, Mr McFadyen requested a face-to-face meeting with Ms Stephens.
For reasons largely related to concerns with Mr McFadyen's health, it was not until 3 August 2023 that Mr McFadyen, accompanied by a representative of his union, attended a meeting with Ms Stephens. Mr McFadyen made submissions in relation to the disciplinary action which had been outlined by Ms Stephens in her letter of 17 February 2023.
Ms Stephens subsequently determined to terminate Mr McFadyen's employment after giving him the opportunity to resign, invoking s 69(4)(b) of the GSE Act. That decision was communicated to Mr McFadyen in a letter from Ms Stephens dated 21 September 2023. The letter informed Mr McFadyen that if he had not tendered his resignation by 28 September 2023, action would be taken to terminate his employment effective from that date.
Mr McFadyen did not tender his resignation.
By letter dated 29 September 2023, Ms Stephens informed Mr McFadyen that as he had not tendered his resignation, his employment was terminated with immediate effect.

The Industrial Relations Act

Section 84 of the IR Act allows for applications to be made to the Commission by employees who have been dismissed and who claim that their dismissal is "harsh, unreasonable or unjust". It is now well accepted that each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration and are not be regarded as a "tautological trinity": Corrective Services NSW v Danwer [2013] NSWIRComm 61 at [21].
I consider the following observations of Commissioner Newall in Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000 to be instructive: "6. The meaning of the words 'harsh, unreasonable or unjust' has been considered in a long line of cases. Glosses have been placed on the terms but in my view [it] is neither necessary nor warranted to go beyond the ordinary meaning of the words, as they are perfectly comprehensible words that sit coherently within the purpose and context of the statute as a whole: Certain Lloyd's Underwriters and Underwriters Subscribing to contract No IHOOAAQS v Cross (2012) 293 ALR 412. A dismissal may be harsh, or unreasonable, or unjust, or all three: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465."
Section 88 of the IR Act sets out matters which the Commission may, in determining a claim, take into account. It is not necessary that the provision be reproduced.
To be entitled to any remedy in these proceedings, the onus is on Mr McFadyen to prove that his dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273.
However, as Mr McFadyen's dismissal was justified on the basis of an allegation of misconduct, it is for the Industrial Relations Secretary ("Secretary") to establish that the alleged misconduct in fact occurred: Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 464; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 at 83-84; Starr v Commissioner of Police [2001] NSWIRComm 226 at [153].

Government Sector Employment Act

Section 69 of the GSE Act relevantly provides as follows: … (3) The government sector employment rules may deal with the following - (a) misconduct by employees of government sector agencies, (b) the procedural requirements for dealing with allegations of misconduct by employees of government sector agencies (consistently with procedural fairness). (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 term "misconduct" is not defined in the GSE Act. Section 69(1), which need not be reproduced, extends the concept to a number of particular circumstances, but does not define it: Denise McKay v Department of Family & Community Services [2018] NSWSC 44 at [106].
Guidance as to the meaning of "misconduct" can be taken from the following passage from the judgment of Smithers and Evatt JJ in North v Television Corporation Ltd (1976) 11 ALR 599 ("North") at 608-609: "It is of assistance to consider the expression 'misconduct' by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression 'misconduct' as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment. This situation would arise if there were conduct inconsistent with the fulfilment of the express or implied conditions of service. It is conduct of that kind which will justify dismissal at common law. And it was decided by a Full Bench of this Court in Crosland v John Fairfax and Sons Pty Ltd, supra, that the test of misconduct for the purposes of a clause identical with cl 10(e) was the same as the test of misconduct at common law. No reason has been advanced to challenge the validity of this decision. We respectfully find ourselves in agreement with it. For purposes of the application of the common law principles to the facts of this case, the remarks of the Master of the Rolls in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 at 287 and 289 , are in point. He said: - To my mind the proper conclusion to be drawn from the passages which I have cited and the cases to which we were referred is that, since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. … I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is 'wilful'; it does (in other words) connote a deliberate flouting of the essential contractual conditions."
Mr McFadyen drew my attention to the following passages from McDiarmid v Commissioner of Police [2012] NSWIRComm 100 ("McDiarmid"): "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. … 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."
Section 69 of the GSE Act allows for a range of outcomes if an employee is found to have engaged in misconduct, ranging from termination of employment to a caution or reprimand. To adopt the language in North, this context indicates that "certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination". Perhaps self-evidently, if action is taken under s 69(4)(a) or (b) of the GSE Act, the employee's misconduct must be such as to warrant termination of employment.

The regulatory context of Mr McFadyen's employment

Mr McFadyen was employed in the Public Service, within the meaning of s 20 of the GSE Act. Section 7 of that Act relevantly provides as follows: 7 Government sector core values The core values for the government sector and the principles that guide their implementation are as follows - Integrity … (b) Act professionally with honesty, consistency and impartiality. (c) Take responsibility for situations, showing leadership and courage. … Trust … (c) Uphold the law, institutions of government and democratic principles. … Accountability … (b) Take responsibility for decisions and actions. (c) Provide transparency to enable public scrutiny. (d) Observe standards for safety. …
In his employment, Mr McFadyen was required to comply with the Department's Code of Ethics and Conduct and its Records and Information Management Policy. The latter document drew attention to the requirement imposed on the Department by s 12(1) of the State Records Act 1998 "to make and keep full and accurate records of our work".
I am also mindful of Mr McFadyen's responsibilities as an ARO, including as outlined in Pt 139 of the Regulations and in the Manual. Mr McFadyen accepted that he was aware of Pt 139, albeit that it had not been raised with him since his "initial training course". As to the Manual, in his written evidence Mr McFadyen stated that he had not received a copy of it, "draft or otherwise", and until he had received the allegations he had "never seen it before". However, under cross-examination, he conceded that a draft of the Manual was available to him during his initial ARO training and that he was aware of both the existence and importance of the Manual.

Allegation 1

Mr McFadyen conceded that he had engaged in the conduct alleged against him in Allegation 1. That is, that he did not conduct the ASIs on 5 and 6 November 2022. However, while he admitted that fact from the outset, he denied that he had engaged in wrongdoing as a result. His response to Allegation 1, both to the Department prior to his dismissal and, on my reading, in his written evidence in these proceedings, was to contend that he had not been rostered on as the ARO that weekend. In his oral closing submissions, though, Mr McFadyen conceded that he had in fact been so rostered.
A significant amount of evidence was led by both parties as to the way in which the weekend ARO roster is developed; the effect on the roster of "shift swaps" between AROs; and how the roster and any changes to it are communicated to the AROs, including how the roster is displayed in the workplace. Mr McFadyen contended that this evidence supported his contention that Mr Fitzgerald was or should have been rostered on as the ARO on the relevant weekend or, as his case developed, why it was reasonable for Mr McFadyen to have been mistaken in that regard.
Mr McFadyen submitted that there was no evidence to suggest that his failure to conduct the ASIs "was premeditated or that he deliberately or intentionally omitted to do them". He led uncontroverted evidence that he had never missed a shift during his employment with the Board without proper reason. Each of Ms Stephens and Ms Christensen confirmed under cross-examination that they had no reason to believe that Mr McFadyen's failure to perform the ASIs on 5 and 6 November 2022 was deliberate. Indeed, Ms Christensen stated that "[t]here must have been something going on", and alluded to Mr McFadyen having had to assist in the recovery of a corpse on 4 November 2022 as something "that may have contributed to his forgetting to…do the shift."
Mr McFadyen submitted that in all of the circumstances, Allegation 1 did not rise to the level of misconduct. It was a mistake or oversight of the kind identified in McDiarmid as falling short of misconduct.
The Secretary submitted that the failure of Mr McFadyen to conduct the ASIs was a "serious issue" which "placed members of the public at risk". He further contended that the "overall seriousness of [Mr McFadyen's] conduct" was compounded by his failure to fully disclose the events of Allegation 1, including that he had been rostered on to conduct the ASIs.
The Secretary disputed the veracity of Mr McFadyen's evidence as to him believing that Mr Fitzgerald had been rostered on that weekend. He challenged - successfully in my view - Mr McFadyen's evidence as to having "confirmed" on 4 November 2022 that Mr Fitzgerald was so rostered. The Secretary submitted that this reflected a failure by Mr McFadyen to accept responsibility for his conduct and, rather, to blame others (in this case, Mr Fitzgerald) for his own failures.

Allegation 2

Mr McFadyen admitted both the facts underpinning Allegation 2 and that they constituted misconduct. He submitted, however, that the misconduct did not justify his dismissal. He contended that there were mitigating circumstances which had a bearing on the seriousness with which the misconduct ought to be viewed.
The "mitigating circumstances" on which Mr McFadyen relied may be summarised as follows: 1. He had received and relied on advice from Mr Wise, a "subject matter expert" in aerodrome matters, to fill out the Logbook and not to report the matter to management. He realises he made a mistake in following that advice. 2. He had taken care to ensure that the entries he recorded in the Logbook were accurate and not simply fabricated. This was evidenced by him checking the Bureau of Meteorology website to confirm weather conditions over the weekend, and reviewing the Logbook for the entries for 4 and 7 November 2022, prior to completing the entries for 5 and 6 November 2022. It followed that his conduct "did not constitute falsifying entries in the Logbook".
Mr McFadyen also relied on the contention that the Logbook "was hardly ever inspected by anyone in the LHIB management or by CASA". As a result, he had no reason to create misleading entries even if that had been his intention, which he denied.
Mr McFadyen submitted that "[t]he penalty of termination, after 8 years of unblemished service, was out of proportion to [his] admitted misconduct in filling out the Logbook retrospectively". He argued that there were other, more appropriate, sanctions available to the Secretary under s 69(4) of the GSE Act.
The Secretary submitted that the objective seriousness of Allegation 2 was "self-evident", involving the falsification of a government record. He again contended that Mr McFadyen had failed to take responsibility for his actions and had sought, improperly, to pass the blame to Mr Wise. He submitted that the evidence did not support the contention that Mr McFadyen was "coerced" by Mr Wise into falsifying the Logbook.
During closing oral submissions, in response to a question from me, the Secretary submitted: "We say that allegation 2 is a standalone allegation that is sufficiently serious that amounts to misconduct. Our position is that both allegations 1 and 2 separately amount to conduct that is sufficiently serious to amount to misconduct under the GSE Act that warrants dismissal. If [the] Commissioner's not with us on allegation 1, but finds factually that it occurred to the extent that allegation 2 is interconnected to a factual establishment of allegation 1 in terms of he didn't go and do the inspection, and [the] Commissioner accepts that that occurred, but it falls below the threshold of misconduct, we would say that allegation 2 gets us there in any event because of the inherently serious nature of the independent actions that were taken under allegation 2."

Was the dismissal unjust?

For the reasons which follow, I have determined that Mr McFadyen's conduct in respect of Allegation 2 amounted to misconduct warranting the termination of his employment.
In his written evidence in chief, as amended at the commencement of his oral testimony, Mr McFadyen stated: "67. On Monday 7 November 2022, I arrived at work at 7.00am. At about 8.00am, I was approached by Wise, who was also an ARO. Uthia Makliit [sic - Utia Makiiti] (Tia), the Team Field Supervisor, was seated at his desk, which was about 1.5 metres away. Wise and I had a conversation in words to the following effect. Wise said: 'I have completed the aerodrome report this morning and the runway was all clear, NOTAMS (notice to airmen) are up to date and nothing to report. However, it seems that the weekend (i.e., 5/6 November) aerodrome inspection was not carried out.' I was surprised to hear this, so I checked the whiteboard roster and saw that Ian Fitzgerald had not been rostered on for that weekend but should have been. I noticed that on the rough roster it had my name down for the weekend. However, my name had been entered many weeks previously and I was aware that Fitzgerald and Wise had swapped shifts the previous week, which would automatically move the rough roster forward one week so as to allow Fitzgerald to still perform the weekend duty and be afforded overtime. I said to Wise: 'Fitz was on. We should report this to the Manager IES, who can then seek advice from the CEO.' Wise said: 'No, you were. The roster was changed.' I said: 'Let's tell Deb (Johnsen) that it wasn't completed.' My suggestion to Wise was that we should inform our next in line manager, Johnsen. Even though she was the CFO, she was overseeing the role of Engineer, as that position was vacant at the time. This was quickly pounced upon by Wise, saying words to the following effect: 'No, don't do that because we'll get demerit points. It's a big problem. As you are the Team Leader, fill in the Logbook just to ensure that there was some record of the weekend conditions, or we'll be in huge trouble by CASA.' I said: 'Really, why don't we just go and see Deb?' Wise said: 'No, we have to put something in there. I'II leave a couple of pages. Just fill in the data in the Logbook pages.' 68. I was not aware what Wise meant by 'get demerit points'. I had never heard of demerit points in the aerodrome environment before. Wise also said words to the following effect: 'If we lose demerit points, CASA will close the airport.' 69. The possibility that CASA could close the airport because of this mix up concerned me and played on my mind. … 71. Given Wise's experience and as he was the main ARO, his advice that 'we have to put something in there,' coupled with the fact that the aircraft for the weekend had also been and gone with nothing to report and that he had just completed the Monday morning inspection with nothing to report, I didn't see what harm completing the Logbook would do, even though I thought Johnsen should have been told. … 73. None of the ARO training I had undertaken addressed the situation where the aerodrome inspection was not completed, for whatever reason. 74. As there was no reference material to go to, the only option was to seek advice and guidance from the only available SME (Subject Matter Expert) who in relation to the AROs, was Wise. 75. Wise was the 'go to' person in relation to airport matters, as 90% of his role was at the airport and he reported to the Manager of the airport. It was for this reason that I foolishly deferred to his suggestion. 76. I made a big mistake and followed Wise's suggestion, even though I had reservations about it. I accessed the Bureau of Meteorology's website to populate the weather conditions for that weekend into the Logbook and the rest of the required information was populated by referring to the inspection on the previous Friday (4/11/22) and from Wise's entry on the Monday (7/11/22). I noticed that the aerodrome inspection results for those 2 days were identical, except for the difference in weather conditions. 77. I acknowledge that my actions could have been interpreted as an attempt to mislead anyone who had subsequently inspected the Logbook into thinking that the aerodrome inspection had taken place on the weekend of 5/6 November 2022. However, that was never my intention, because I knew that the Logbook was hardly ever inspected by anyone in the LHIB management or CASA." (Reproduced verbatim)
It is relevant to observe that as at 7 November 2022, Mr Wise, a Field Officer, reported to Mr Makiiti, the Field Supervisor. Mr Makiiti in turn reported to Mr McFadyen.
At some stage following this conversation, Mr McFadyen made the following entry in his work diary for 7 November 2022: "0800 BW ASKED ABOUT WEEKEND ARO. I SAID FITZ WAS ON. HE SAID NO I WAS. THE ROSTER WAS CHANGED. I SAID I WILL SEE DEB. BW SAID, DON'T WE'LL GET DEMERIT PTS, BIG PROBLEM, JUST MAKE IT UP OR WE'LL BE IN HUGE TROUBLE. TOOK MORE EXPERIENCED ARO'S ADVICE. TIA IN ATTENDANCE IN OUR OFFICE." (Reproduced verbatim, capitals in original)
As stated above, attached to Mr McFadyen's submission to the Department of 2 March 2023 was a document signed by Mr Makiiti, recording his recollection of the conversation between Mr McFadyen and Mr Wise on 7 November 2022. That document was accepted into evidence over the Secretary's objection, subject to the weight to be attached to it. In that document, Mr Makiiti wrote, amongst other things: "Barrie Wise and James return in our main office. James said, 'ok I'll report it to the CEO'. Barrie Wise said, 'I guess so' James and Barrie Wise discuss about this matter and agreed to reporting it to the CEO. … James said, 'what should we do with the log book?' Barrie Wise said, 'I guess we can copy data's from other days'. For the Airport Inspection Log Book Document, on 07/11/2022 James and Barrie Wise also discuss and agreed to copying 04/11/2022 airport inspection dates and should fill in the plank pages." (Reproduced verbatim)
Mr Wise disputed Mr McFadyen's recollection of the conversation on 7 November 2022. He gave evidence to the following effect: 1. He is not the "go to" ARO, or a "subject matter expert". He would not tell anyone how to do their ARO duties, especially Mr McFadyen "because he was my boss". 2. It was Mr McFadyen who suggested that two pages of the Logbook be left blank so that he could fill them out later. 3. Mr Wise left two pages blank "because you have to leave those pages blank anyway as it is not proper to back fill an entry or to tamper with or change an entry". 4. He would never tell anyone to fill in the Logbook incorrectly. If an ASI was missed the Logbook would be kept blank. One would "never fill it in with false information" as it is "a legal document for CASA to look through". 5. He told Mr Makiiti, as his supervisor, and Mr Josephs, "who was acting in charge of the airport", that the ASIs had not taken place. He was advised to talk to Kate Dignam, the Airport Operations Manager, despite her then being on leave. Ms Dignam informed Mr Wise that he should raise the matter with Ms Christensen. 6. Mr Wise went to see Ms Christensen who told him to write the Incident Report.
It is not possible to reconcile the accounts of Mr McFadyen and Mr Wise as to their conversation on the morning of 7 November 2022. There are incongruities arising from the evidence. For example: 1. Although Mr Makiiti's recollection offers some support for the contention that Mr Wise suggested that Mr McFadyen create Logbook entries for 5 and 6 November 2022, it is inconsistent with Mr McFadyen's evidence that Mr Wise was adamant that the matter not be reported to management. Mr Makiiti recalled it having been agreed that the incident should be reported to Ms Christensen. 2. Further in this respect, it was uncontroverted that immediately after speaking to Mr McFadyen, Mr Wise escalated the matter to Mr Josephs, Ms Dignam and Ms Christensen. This is entirely inconsistent with him having "pounced" on Mr McFadyen's suggestion that the matter be reported to Ms Johnsen, and cautioning against informing management of the incident. 3. Under cross-examination, Mr Wise stated that he had never heard of the concept of "demerit points" (as did Ms Christensen and Ms Stephens). Mr McFadyen did not take me to anything to suggest that the term has any meaning in the present context. This makes it seem unlikely that Mr Wise would have used the words attributed to him by Mr McFadyen.
I also have some reservations as to whether the evidence demonstrates that Mr Wise is properly to be regarded as "the main ARO" and a "subject matter expert" on aerodrome matters, whose advice or guidance Mr McFadyen would feel himself bound to follow.
On the other hand, there were some inconsistencies in Mr Wise's evidence as to the events of that day, calling into question the reliability of his recollection. For example, he maintained that he had only one meeting with Ms Christensen on 7 November 2022, resulting in him completing the Incident Report. However, and without going into the detail, it is reasonably clear that the Incident Report must either have been created as a consequence of at least two conversations between Mr Wise and Ms Christensen, or Mr Wise was mistaken as to the time at which it was prepared.
I have determined, though, that for the purposes of considering Allegation 2, it is not necessary to resolve these issues, and in particular the conflict as to the conversation between Mr McFadyen and Mr Wise on 7 November 2022. This is because, even if Mr McFadyen's evidence is accepted at its highest, it does not significantly mitigate the seriousness of his admitted misconduct.
Despite Mr McFadyen's submissions to the contrary, the entries he created in the Logbook for 5 and 6 November 2022 were demonstrably false. It is no answer that the weather details he recorded had been obtained through the Bureau of Meteorology and that the other entries had been informed by the records of the ASIs conducted on 4 and 7 November 2022.
On their face, the entries represent that ASIs took place on each of 5 and 6 November 2022, when they were not. The entries also represent that Mr McFadyen completed the Logbook entries on the same day as the supposed inspection, including by stating that he had signed the entries on 5 and 6 November respectively. There is no controversy that the entries were made on 7 November 2022. The falseness of the Logbook entries is further evidenced by Mr McFadyen having recorded the presence of an aircraft which had departed from Lord Howe Island on 4 November 2022.
The Logbook entries also reflect matters that Mr McFadyen could not have recorded without a contemporaneous visual inspection, regardless of what might have been observed on 4 and 7 November 2022. These include him noting that there were no bird or animal hazards, and that the perimeter fence had not been breached and that all gates were found closed and locked.
The entries made by Mr McFadyen in the Logbook can only be seen as an attempt to falsely represent that the ASIs had taken place, and recorded, on 5 and 6 November 2022 respectively. Even had Mr Wise said to Mr McFadyen that he should "fill in the data in the Logbook pages", as Mr McFadyen deposed, it does not amount to a suggestion that the Logbook misrepresent that inspections had actually taken place. The words recalled by Mr Makiiti also do not rise to that level.
I am also not persuaded that, to the extent Mr Wise provided advice regarding completion of the Logbook, it serves to exonerate Mr McFadyen's conduct. It was Mr McFadyen's evidence that he had thought it best to report the matter to management, but that he followed Mr Wise's advice not to do so but to fill in the Logbook as he did. He did so despite having "reservations", with his misgivings being such that he felt it necessary to reflect the advice he had received in a diary note the same day.
Mr McFadyen was Mr Wise's "two-up" supervisor. Regardless of Mr Wise's experience in aerodrome matters, it was not open to Mr McFadyen to bury his own misgivings and rely on what Mr Wise may have said to do something which he appears to have known at the time was problematic, if not wrong. A more credible explanation is that Mr McFadyen took it upon himself to correct his oversight in not conducting the ASIs on 5 and 6 November 2022.
Mr McFadyen submitted that if his intention was to cover up for the fact that he had not done the inspections on 5 and 6 November, it would have made more sense for him to come in early on 7 November 2022 and fill in the Logbook before anyone else arrived. That submission ignores the fact that he maintained that he had not been rostered, or had not been aware that he had been rostered, to do the ASIs that weekend.
I also do not find it credible that McFadyen would have felt bound to accept the advice he had received from Mr Wise despite being troubled by it. Ms Stephens gave evidence that from her observations, Mr McFadyen was not somebody who would be "easily swayed". When taken to this evidence in cross-examination, she stated that in her view Mr McFadyen was not a person who would have been persuaded by advice to do something that he did not want to do. When asked for the basis of this opinion, she stated that it was formed from the written responses that Mr McFadyen had prepared in the course of the initial assessment, and from her observations in the meeting that she had with him on 3 August 2023.
I formed a similar impression of Mr McFadyen having observed him give evidence.
I will turn to some of the other arguments advanced by Mr McFadyen.
To my mind, the fact that the Logbook may only rarely, if ever, be inspected by Board management or CASA is of no consequence. It may suggest that there was no imperative for Mr McFadyen to fill out the Logbooks as he did. It does not change the fact that he did so. To the extent this evidence was led to diminish the objective seriousness of the misconduct, I do not accept it.
Mr McFadyen also drew my attention to a requirement in the Manual that a "senior staff member", who he would expect to be the Aerodrome Operations Manager, check and sign off Logbook entries. He observed that this did not occur. Again, I fail to see how this has any bearing on the seriousness with which his misconduct is to be viewed.
Mr McFadyen also contended that the Secretary had improperly misstated his response the Allegation 2, by suggesting that he (Mr McFadyen) had claimed to have been "coerced" by Mr Wise to complete the Logbooks in the manner he had. This seemed to be an exercise in semantics. Mr McFadyen maintained that he was doing what Mr Wise suggested he do. Moreover, when he was asked cross-examination why he had represented in the Logbook that he had signed the entries on 5 and 6 November 2022 respectively, Mr McFadyen said "that was the only option I was given".
Mr McFadyen placed significant emphasis on his long history of public service, not just with the Board but also with the NSW Police Force, and on the fact that until this incident his performance and conduct had never been brought into question. However, these considerations cut both ways. While it might be relevant in assessing the harshness of the dismissal (which is considered below), it is also a factor to take into account in considering the seriousness of his misconduct. Given his position with the Board and his prior service as a police officer, Mr McFadyen should have been aware that the creation of false records was not an acceptable response to the ASIs not having been conducted. If anything, his position, experience and background should have seen him summarily reject the advice he claims to have received from Mr Wise.
For a similar reason, it is immaterial that Mr McFadyen had received no training as to what to do in the event that an ASI is not conducted. A person in Mr McFadyen's position, and with his experience and background, should not need training to know that the creation of false records would never be an appropriate course of action.
I am not persuaded that Mr McFadyen has fully accepted responsibility for his actions. While, as he submitted, he admitted from the very outset that he completed the Logbook entries, it was (and remained) in the context of him claiming, in effect, to have been led up the garden path by Mr Wise. Further, he continued to challenge the characterisation of the Logbook entries as "false", a matter I have dealt with above. These matters do not properly reflect an acknowledgement of responsibility.
For these reasons, and having regard to North and McDiarmid, I am satisfied that in respect of Allegation 2 Mr McFadyen engaged in misconduct. It was in breach of his obligations under s 7 of the GSE Act reproduced at [41] above. It was inconsistent with his obligations under the Department's Code of Ethics and Conduct and its Records and Information Management Policy. It was, in any event and to adopt the language in North, "so seriously in breach of [his employment] that by standards of fairness and justice the employer should not be bound to continue the employment". I consider that the misconduct provided grounds for his dismissal.
Having made that determination, it is unnecessary to traverse the evidence and submissions regarding Allegation 1.
For the reasons set out above, I find that the dismissal was not unjust.

Was the dismissal unreasonable?

I have outlined above the procedure adopted by the Department culminating in Mr McFadyen's dismissal. He was informed of the allegations against him and had an opportunity, which he took, to respond to them. He was then given the opportunity to respond to the sanction being considered by Ms Stephens. He did so in writing, and orally in a meeting with Ms Stephens. At that meeting, which had been deferred to accommodate concerns with Mr McFadyen's health, Mr McFadyen had the benefit of union representation.
Mr McFadyen did not advance a positive case that the Secretary had failed to comply with "the procedural requirements for dealing with allegations of misconduct by employees of government sector agencies", noting the terms of s 69(3) of the GSE Act. However, he submitted that there were deficiencies in the process leading to his dismissal.
In the first place, Mr McFadyen took issue with the fact that Ms Christensen reported the incident to CASA and commenced an investigation - the "initial assessment" - without first speaking to him. He submitted that if Ms Christensen had spoken to him after speaking to Mr Wise, he may have been able to explain what had happened and so alleviate any concerns that she may have had.
There are two observations to make. First, under cross-examination Ms Christensen gave evidence that she considered the situation "to be quite serious, and [she] felt that it was important for any interviewing to be handled, and any gathering of facts to be handled independently and by someone [trained] to do so." That explanation is credible.
Second, Ms Christensen gave evidence that she has an "open door" policy and that Mr McFadyen could have approached her in respect of the situation. Mr McFadyen sought to present this as Ms Christensen having taken the position that as he had decided not to take the matter to her, she was not going to give him the opportunity to be heard.
That submission ignores what Mr McFadyen did. His own evidence, supported by Mr Makiiti, is that his initial thought was to report the matter to Ms Johnsen. However, rather than taking responsibility and exercising leadership of the situation, as I consider his position required, he claims to have allowed himself to have been influenced by the advice he had received from Mr Wise to falsify the Logbook. The effect of Mr McFadyen's submissions is to say that Ms Christensen is at fault for not intervening in a more timely manner so as to lead him from the path to perdition. On one analysis, this may be seen as an attempt to make somebody else responsible for his misconduct.
In the second place, Mr McFadyen asserted that the investigation conducted by the Department was deficient. He relied principally on two grounds. First, that the Department had not considered his diary note of 7 November 2022 recording his conversation with Mr Wise (see [59] above). Second, the Department had failed to interview Mr Makiiti.
In relation to the diary entry, Mr McFadyen stated that after his meeting with Ms Johnsen and Mr Faulks on 9 November 2022, he had provided his diary to Ms Johnsen and requested that she take a copy of the entry for 7 November 2022. He also requested that Ms Johnsen make the diary notes available as part of the initial assessment. He claimed that this did not happen. Mr McFadyen subsequently provided a copy of the notes to Ms Mulligan.
Ms Stephens gave evidence that she considered that the diary entry had been falsified, as part of Mr McFadyen's attempts to "blame other people". She stated that she had "put a lot of weight on this factor in considering the right sanction".
It appears that Ms Stephens was influenced by the fact that the note appears at the bottom of the day's entry, rather than in chronological sequence. This does seem curious at first glance, as it looks to have been added as an afterthought. Further, the inclusion of the words "took more experienced ARO's advice" read as a self-serving attempt at exculpation. Despite these matters, the evidence does not support the conclusion that the diary entry was falsified.
Under cross-examination, Mr McFadyen stated: "So it's [that is, the diary is] a running sheet of my work through the day, so I can allocate it during ‑ so, we do timesheets every fortnight, and we use our diary to go through and allocate our eight hours for the day so it's costs to different sections. So that's why it's written like that. So they would be roughly written at the time or shortly after. … I've always done contemporaneous notes at the bottom of the page so it doesn't interfere with the chronological order of my day's work, and you can see that in other entries as well."
Consistent with this testimony, Mr McFadyen drew my attention to a number of his diary entries where he had recorded observations in a manner similar to that he adopted on 7 November 2022.
Further, Mr McFadyen was able to show the diary entry to Ms Johnsen immediately after the meeting on 9 November 2022. There is no evidence that before that meeting Mr McFadyen knew that the matter had been escalated. This gives rise to the question as to what would have motivated him to have prepared a false diary entry before that time.
The allegation that Mr McFadyen falsified the diary entry is a serious one and is not established. However, on balance I do not consider that this has a material bearing on my consideration of the fairness of the dismissal. To the extent that the diary note purports to record the advice Mr McFadyen claims to have received from Mr Wise, it does not serve to exonerate him from his misconduct for the reasons previously canvassed. Further, beyond the diary entry, there was a legitimate basis on which Ms Stephens could otherwise conclude that Mr McFadyen was seeking to lay responsibility for his misconduct on others.
I also do not consider that much flows from the failure of the Department to interview Mr Makiiti. Ms Stephens testified that she had seen the document prepared by Mr Makiiti, had made enquiries as to why there was no statement from him, and had been informed "that it was not considered that Mr Makiiti had anything additional to add to the matter". In all of the circumstances, there is no basis to conclude that that assessment was not a fair one. Mr Makiiti had already provided a document setting out the conversation he had heard between Mr McFadyen and Mr Wise. There is no reason to suggest that he had any other relevant information to impart.
For these reasons, I am not persuaded that there were deficiencies in the process resulting in Mr McFadyen's dismissal so as to render that dismissal unfair.
Having regard to these considerations, I accept the following submissions advanced by the Secretary: "55. For the reasons relied on and set out in detail by Ms Stephens, the sanction imposed on Mr McFadyen was not unreasonable. Ms Stephens' careful decision-making process was founded upon inferences which were readily available, on the balance of probabilities, on the face of the evidence before her. 56. The investigation carried out by Ms Mulligan was thorough and considered. The Initial Assessment Report sets out in detail the investigation that was completed, a summary of the evidence that was gathered, and the reasons for the conclusions reached. 57. Mr McFadyen was given every opportunity to participate in the investigation process and was represented by his union delegate. All submissions and evidence advanced by Mr McFadyen in his defences were taken into consideration before a decision as to sanction was reached. Dismissal was a reasonable and available outcome given the gravity and seriousness of Mr McFadyen's Conduct."
I find that the dismissal was not unreasonable.

Was the dismissal harsh?

In Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 McColl JA observed: "156. I have already referred to the tripartite test posed by s 84 of the IR Act as to whether an employee's dismissal was 'harsh, unreasonable or unjust' as explained in Byrne. In addition to the matters there identified, in considering the possibility that dismissal might be 'harsh', (although not unjust or unreasonable), it is necessary not only to identify any misconduct on the employee's part said to have justified the termination, but also to 'weigh in the balance any "mitigating circumstances"…including length of prior employment, the employment record and favourable character considerations'." (Footnotes omitted)
In Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 ("Fraser") the Full Bench observed: "35. Bearing in mind the foregoing discussion of principles, we will consider the severity of the penalty inflicted on the respondent for his misconduct having regard to relevant mitigating circumstances. In other words, it is necessary to consider whether the dismissal was disproportionate to the gravity of the misconduct both in itself and when examined in the light of mitigating circumstances including the personal and economic circumstances of the respondent."
Mr McFadyen is 56 years of age. He is married with 3 school-aged children.
Mr McFadyen and his wife own a property on Lord Howe Island which is mortgaged. He gave evidence that he has been unable to secure new employment since his dismissal, with full-time employment on Lord Howe Island being "extremely rare". He stated that he has "little or no prospects for full time employment on the island if [he is] not reinstated" and that without full-time employment he would be forced to sell the family home and relocate to New South Wales. He stated that relocation was not his preferred option, as before they can be sold, properties on Lord Howe Island must be valued by the NSW Valuer General and offered first to residents of the Island.
Mr McFadyen described himself as a committed and active member of the Lord Howe Island community. He is a member of the local SES and of the local unit of Marine Rescue NSW, a committee member of the Lord Howe Island Fishing Club, a member of the Lord Howe Island Golf Club and he performs volunteer maintenance work at the Lord Howe Island Community Pre-School.
The factors outlined at [105]-[107] above weigh heavily in favour of Mr McFadyen. They "illicit some hesitance in finding that the dismissal…was not harsh", to adopt the language of the Full Bench in Fraser at [47].
However, the misconduct in which Mr McFadyen engaged was objectively serious. On my reading of his evidence and submissions, he has attempted to downplay the seriousness of his conduct, including by drawing attention to the unlikelihood of the Logbooks being inspected by management of the Board or by CASA. He has also failed to fully accept responsibility for his conduct, which calls into question the extent to which his expressions of regret and remorse can be taken at face value.
Mr McFadyen had, as he stated in his submissions, "30 years of unblemished service in the NSW public sector, which included 23 years as a member of the NSW Police Force". The Secretary submitted, and I accept, that Mr McFadyen has "dedicated a huge portion of his life to service and to the people of New South Wales".
However, as already stated, that is a consideration that cuts both ways. He occupied a position of some trust and responsibility. By virtue of that position, and having regard to his service as a police officer, he should and must have known that the course on which he embarked - the falsification of records - was simply the wrong thing to do.
On balance, while there are elements of harshness in the dismissal, I am not persuaded that they outweigh the objective seriousness of Mr McFadyen's misconduct. I find that the dismissal was not harsh.

Conclusion

Having determined that the dismissal was not harsh, unreasonable or unjust, the only appropriate order is that the proceedings be dismissed.

Order

The application is dismissed. Damian Sloan 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: 22 April 2024

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