Neville v Secretary of the Treasury on behalf of Corrective Services NSW

The applicable jurisprudence

1. It is apparent from subs.100C(2) of the Act 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: see Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91.
2. The powers exercisable by the Commission are protective, not punitive, in nature: Secretary, Department of Justice v Schoeman [2014] NSWIRComm 40 ('Schoeman No 2') at [73], citing Director General, Department of Ageing, Disability and Homecare v Lambert [2009] NSWCA 102.
3. The terms of the Public Sector Employment and Management Act 2002 ('the PSEMA') governed Mr Neville's employment at the time of the disciplinary sanction against which he appeals. The later enactment of the Government Sector Employment Act 2013 did not affect that statutory position: Schoeman No 2 at [48]. It follows that Section 41 of the PSEMA has application to the present matter.
4. The respondent submitted that the approach to the matter involved the Commission considering for itself the disciplinary sanction imposed, having regard to: 1. the maintenance of appropriate standards of conduct and work-related performance; 2. the protection and enhancement of the integrity and reputation of the Public Service; and 3. the protection of the public interest.
5. In considering this appeal, the Commission is bound to have regard to the matters set out at (i)-(iii) above, which are elements drawn expressly from s.41 of the PSEMA; not, however, as matters standing alone, but as part of the overall consideration of the decision under appeal: Schoeman No 2.

The requirement to make case notes

1. As I say above, Mr Neville readily conceded that there was a requirement on him to make case notes about each contact with an offender.
2. That requirement is set out fully and with clarity in Corrective Services' Community Corrections Policy and Procedures Manual.
3. The Manual provides, in the course of an extended discussion of case notes, that they are to be 'a concise and accurate record of an officer's involvement with an offender.' The notes are characterised as 'tools for case management'. They are expressly said to be tools for the making of breach reports, which are reports provided to courts with the responsibility of sentencing offenders.
4. The manual prescribes in terms that an officer is to record a case note after each contact with an offender or significant other. Their content should include specific changes in circumstances which may affect the case plan; examples are given including 'alcohol/substance abuse, relationships, accommodation, employment, treatment programs, and health issues'. The content of the interaction that Mr Neville had with the offender clearly, on his own evidence of those interactions, squarely required that case notes be made. The subject matters of the conversations Mr Neville had with the offender on both occasions, 3 March and 18 March, was material which may very well have been highly relevant to a breach report.
5. Further, the Manual makes it clear that officers may well be questioned in a court of law about the content of their case notes. They are to be documented in 'an accurate and professional manner'.
6. There is in sum no doubt that the recording of case notes is a significant and important obligation of Corrective Services officers who come into contact with offenders.
7. And that responsibility, which falls on all Departmental officers who may come into contact with offenders, was a heightened responsibility for Mr Neville.
8. That is clear from the obligation placed upon him in his position description as District Manager. That required Mr Neville to, amongst other things, manage a District Office in accordance with departmental policy procedures and standards, to ensure the delivery of an efficient and effective administrative and client driven service, to demonstrate the capability of 'taking ownership' of his work responsibilities, and to role model desired behaviours.
9. The first of the 'Key outcomes/accountabilities' imposed on the District Manager in the position description is to 'lead and manage a team in the delivery of operational objectives, in particular the effective management of offenders in the community and the provision of reports to sentencing and releasing authorities.'
10. Read together with the manual, it is clear that the making of case notes, as part of the maintenance of a capacity to provide sentencing and breach reports, was a fundamental obligation and one which the District Manager could not acceptably forget.

Effect of forgetting

1. I observe here that I was invited by counsel for the respondent to disbelieve Mr Neville's evidence that he simply forgot to make the case notes. That was put by saying that Mr Neville's account of simply forgetting to make the notes was 'glaringly improbable' or words to that effect.
2. To find that Mr Neville had not forgotten to make the case notes but had deliberately chosen not to make them, which finding would have the effect of a finding that he had told an untruth about that matter to both his employer and the Commission, would be a very serious finding. It would need to be made out to a 'comfortable level of satisfaction': NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123, Evidence Act 1995 s.140. It could not be made on inferences.
3. I do not make that finding. Indeed, I found Mr Neville to be a witness of truth. I accept that Mr Neville was, in circumstances where he had just returned to a demanding job from a period of serious illness, under considerable pressure, and that in those circumstances it may well have been that he forgot, on returning to the office, to record the case notes. It is apparent that Mr Neville is an officer with a higher than average work ethic and a man prepared to accept a high level of civic and community responsibility.
4. Nevertheless, the making of case notes was demonstrably a matter of fundamental importance. As I set out above, it was doubly important for Mr Neville to remember to make these case notes, as he had not only the responsibility that fell on every officer to make 'accurate and professional' case notes, but he had the responsibility of leadership, indeed to be a role model in a professional sense to others. That responsibility is what goes with the position and the salary of a District Manager Grade 9/10.
5. In those circumstances, while I accept that his failure to make the case notes was inadvertent and was a matter of forgetfulness and not otherwise, that forgetfulness cannot be regarded as a trivial matter.
6. To forget to do something which it was important to do, in the context of one's employment, and which may have serious consequences to the employer, is itself a serious matter: Baster v London County Printing Works (1899) 1 QB 901. Such forgetfulness may warrant dismissal. That was not, of course, the sanction imposed here.
7. But here, where Mr Neville had a personal and a leadership responsibility to attend to making the notes, the forgetfulness was serious. It was serious in the context that any failure to make case notes may have in turn serious consequences for Corrective Services, for any employee of Corrective Services, for the clients of Corrective Services, for the courts, and, through the sentencing process, for the public. The evidence was, unsurprisingly, that courts give real weight to the reports provided to them by Corrective Services officers in respect of offenders before the court concerned. An accurate or inaccurate case report might be the difference between a jail sentence and some other punishment.
8. In those circumstances, a failure to keep important records has a capacity to act adversely upon the reputation of the Public Service and potentially adversely to the public interest. Appropriate standards of work-related conduct are not met if these important notes are not made.
9. In these circumstances the decision to impose the specific disciplinary sanction imposed on Mr Neville was not incorrect. Accordingly, it does not warrant being overturned on appeal.
10. I have of course had regard to the impact of the decision on Mr Neville and his family, even though I do so in the context of a protective rather than a punitive jurisdiction.
11. The reduction in rank has, because he works in a regional area, a more disruptive effect on Mr Neville both now and in the future than if he worked in Sydney. There are in my view circumstances in which employees in rural and regional areas should be treated differently to those in Sydney, and in which the impact of a disciplinary sanction, whether dismissal or something else, might be weighed differently because of its heightened effect on a rural or regional employee. But in this case, while the effect on Mr Neville is significant, the disciplinary sanction imposed cannot be seen to be wrong. The Assistant Commissioner's decision ought not be overturned.

Orders

1. The Orders that the Commission makes in this matter is as follows:
2. The appeal is disallowed. 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: 17 March 2015