127 Mr Gibian spoke to and addressed his outline of submissions in support of the applicant's case tendered during the course of these proceedings. At the outset, he contended the applicant's dismissal was harsh, unreasonable or unjust and sought orders he be reinstated to his former position as a youth officer together with orders for remuneration lost and the maintenance of the continuity of his employment. He submitted the applicant had been continuously employed by the Department since June 1994.
128 Mr Gibian recalled the applicant was dismissed as a result of a single allegation arising from an incident that took place on 6 February 2008. Specifically, the allegation was that:
On or about 6 February 2008 you assaulted detainee WW at Frank Baxter Juvenile Justice Centre.
129 Mr Gibian recounted particulars raised in the allegation:
It has been alleged that at approximately 1pm on 6 February 2008, while you were supervising a group of detainees in the TV area of the Bouddhi Unit at the Frank Baxter Juvenile Justice Centre, you assaulted detainee WW by kicking him with your right leg in the groin area whilst you were in a seated position. WW has alleged that you used an amount of force that was equivalent to kicking a soccer ball and that your foot connected with his testicles.
It has also been alleged that prior to kicking him, you said to WW words to the effect of, "Do you want your balls where your mouth is?"
130 Mr Gibian submitted the applicant was informed by phone on the night of 6 February 2008 that he was immediately suspended from work and was also required to make a report in relation to the incident. He was formally notified an allegation of misconduct had been made against him in correspondence from the Director General dated 12 February 2008. The Director General also advised the applicant that the Department had decided to deal with the allegation as a disciplinary matter and, accordingly, he was suspended from duty pending an investigation. The Director General subsequently appointed Ms Klaassen to undertake an investigation of the allegation made against the applicant. The applicant was subsequently interviewed by Ms Klaassen on 27 February 2008 and an investigation report dated 13 March 2008 was later forwarded to the Department.
131 Mr Gibian noted Ms Klaassen had interviewed a number of persons during the course of her investigation. Mr Gibian drew the Commission's attention to correspondence from then Acting Director General, Mr Muir, dated 1 May 2008, advising the applicant he had formed the opinion he had engaged in misconduct and was considering a range of disciplinary actions including dismissal. Mr Muir subsequently met with the applicant at his request on 19 May and following that meeting, the applicant made further written submissions concerning his conduct.
132 In correspondence dated 9 July 2008, Mr Muir advised the applicant that he had determined to impose disciplinary action in the form of dismissal effective from that date. Mr Muir also informed the applicant the alleged conduct came within the definition of reportable conduct for the purposes of the Commission for Children and Young People Act and accordingly, his name would be registered with the Commission for Children and Young People as a Category One notification.
133 Mr Gibian referred the Commission to the statutory scheme provided by the Public Sector Employment and Management Act which requires the Director General to deal with allegations of misconduct as defined under s 43 of the Act as either a disciplinary matter or a matter that requires remedial action. If the Director General decides to deal with an allegation as a disciplinary matter he or she is able, pursuant to s 46(2) of the Act, to take disciplinary action where he or she "is of the opinion that the officer is engaged in misconduct". He subsequently referred to the range of disciplinary action provided under s 42(1) of the Act which, shortly stated, may range from dismissal through to the imposition of a fine, caution or reprimand.
134 In regard to the statutory scheme, Mr Gibian submitted that in considering this application, the Commission is required to find whether the misconduct in fact occurred as alleged and, if it did occur, whether the disciplinary action of dismissal was harsh, unreasonable or unjust in all the circumstances, including the availability of other disciplinary measures available: see Director of Public Employment v Public Service and Professional Officers' Association Amalgamated Union of NSW (on behalf of Brown) [2008] NSWIRComm 221 at [22].
135 Mr Gibian also submitted the Commission was required to determine whether the allegations had been made out on the evidence: see NSW Public Service Professional Officers' Association v Forestry Commission (1990) 39 IR 46 AT 51-52 per Cahill J, Vice President.
136 Mr Gibian contended the dismissal of an employee for misconduct may be harsh, unreasonable or unjust on the grounds that it was unfair, because the Commission was not satisfied that the allegations relied upon in fact occurred or in the alternative, because dismissal was too harsh a punishment. In that regard, he referred to the High Court decision in Byrne & Anor v Australian Airlines Ltd (1995) 185 CLR 410 where McHugh and Gummow JJ stated at 465:
The one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.
137 He further contended a similar approach was adopted by the Commission in Outboard World Pty Ltd (t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 165 at 183. A dismissal may also be unreasonable but not harsh, or harsh but not unjust or the dismissal may be harsh, unjust and unreasonable: Bankstown City Council v Paris (1999) 100 IR 363 at 371.
138 Mr Gibian submitted that in this matter, the Department had sought to justify the dismissal on the basis of a specific allegation of misconduct. The onus therefore also fell on the employer to establish that the alleged misconduct in fact occurred and warranted dismissal. In that regard, he referred to the oft quoted decision of Hungerford J in Pastrycooks Employees, Biscuit Makers & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 83-84 where his Honour observed:
It is undoubted, in my view, and as Mr Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union: see Re Barrett and Women's Hospital, Crown Street (1947) AR (NSW) 565; Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) (1949) AR (NSW) 868; Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 at 279 and Homebush Abattoir (1966) AR (NSW) at 386. However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson (1957) AR (NSW) 547 at 552, 553; North v Television Corporation Ltd (1976) 11 ALR 599 at 602; Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35.
139 Mr Gibian stated the onus of proof fell on the employer and the standard of proof, being the civil standard, must be such as to enable a positive finding that the misconduct occurred: Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 463-464:
The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M & M (1988) 63 AJLR 108 and by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. See also Shop, Distributive & Allied Employees Association NSW Branch v Jewel Food Stores (1987) 22 IR 1 and Coles Myer Ltd v Shop, Distributive & Allied Employees Association (NSW) (1989) 27 IR 299.
140 Mr Gibian submitted that in pressing misconduct, the Department was required to make out its case in a convincing way. He contended that where an employer who operates within the statutory scheme, such as the Public Service Employment Management Act, is unable to prove to the requisite standard that the misconduct relied upon occurred, the statutory foundation for imposing the disciplinary action does not exist: see Director of Public Employment v Public Service and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Brown).
141 With reference to the alleged misconduct, Mr Gibian contended the investigator, Ms Klaassen, had concluded the applicant kicked detainee WW and that contact was made in the testicles. However, in arriving at that conclusion, he said Ms Klaassen accepted that the applicant had repeatedly and convincingly stated his actions were unintentional, he had not engaged in a hostile act and he did not intend his foot to connect with detainee WW. In that regard, and in the absence of anything further from Mr Muir, Mr Gibian contended the Commission could only assume the applicant was dismissed for unintentionally making contact with detainee WW.
142 Mr Gibian also contended there was no basis whatsoever to support the proposition or conclusion the applicant intentionally kicked WW or intended to cause any harm or injury to him. He referred to the evidence of the applicant and WW immediately prior to the incident, particularly concerning the applicant's desire for personal space. Referring to the CCTV footage, Mr Gibian said the applicant remained seated on a low chair and when he lifted his leg, he did not reach or move toward detainee WW in any way. He further contended that had the applicant sought to intentionally kick WW and cause him harm, he would not have remained seated but presumably he would have stood up and sought to ensure he made good contact with him. He further contended the applicant was well aware that the room was covered by CCTV cameras and in his view, an intention to deliberately kick and hurt a detainee, as alleged by the Department, would constitute an act of supreme stupidity.
143 In terms of the applicant's conduct, Mr Gibian stated the Commission could not assume that a youth officer with 14 years' service would act in such a manner. Simply put, he contended the evidence did not support the finding made by the Department that contact was made by the applicant or that WW was hurt in any way. In support of that contention, Mr Gibian stated the following:
· In evidence before the Commission and in his interview with Ms Klaassen, the applicant has consistently stated he "flung his leg out to create space" and believed he made no contact with WW.
· The CCTV footage is inconclusive as to whether any contact was made with WW. He contended a close viewing of the CCTV footage demonstrated that it was possible to see the whole of the applicant's shoe at all times. Accordingly, if the applicant's white shoe was viewable at all times, it was impossible that contact was made with WW above the bottom of his long and baggy shorts.
· The two youth officers who observed the incident did not see any contact made between the applicant and WW. In that regard, Mr Fry's evidence was, at most, the applicant may have made contact with the lower part of WW's shorts and with respect to Mr Minney, who entered the room immediately prior to the incident occurring, he did not see any contact made or believe any contact had been made.
· The detainee LI who had the most direct view of the incident had described the incident as "a little kick in the side of the leg" and "it wasn't near WW's vital areas or anything". In relation to the evidence of other detainees, Mr Gibian stated their evidence could not be accepted as reliable on the grounds that none had a direct view of the incident.
· The assertion by WW that the applicant kicked him with the force equivalent of kicking a soccer ball was both fanciful and symptomatic of his exaggeration of the entire incident. Given where the applicant was seated, it was unlikely the applicant could have reached WW's genitals from that position, let alone apply any substantial force. He also contended WW's exaggeration of the incident was consistent with the opinion held of him by Mr Minney who stated in his evidence that WW likes to "muck around" and had a tendency to play jokes on staff including pretending to be hurt by them. Detainee LI had described WW as an "attention seeker" and "drama queen". Moreover Mr Hockley, the Unit Manager of the Bouddhi Unit gave consistent evidence in relation to WW. He regarded WW as "high maintenance" and "a fair bit of trouble" capable of "inciting other detainees to be disobedient", and being "subversive".
144 Mr Gibian also submitted the reaction of everyone in the TV room was not consistent with the applicant having kicked WW as alleged. In that regard, no one reacted in any way and the evidence of Mr Fry and Mr Minney was that WW did not look as if he had been hurt at all or was in pain. He contended WW was pretending to be affected by the incident and was "putting on a show". Detainee LI had also suggested WW was "just putting it on and trying to get attention".
145 Mr Gibian contended the evidence of both JH and AB was unreliable on a number of grounds, including the fact they were not interviewed until 12 days after the alleged incident. In his view, it was inevitable the matter would have been discussed at length between the detainees and on that basis, their accounts of the incident were contaminated. In that regard, he submitted that in cross examination, AB admitted he had not observed the incident at all. He contended AB, who had previously described the applicant jumping off the chair and "standing up off the chair when he kicked him", had given Ms Klaassen a "fanciful and utterly exaggerated account that is inconsistent with the CCTV footage and the account of any other person. In cross examination, AB said he gave Ms Klaassen a false account because "I heard it from a like, people, like, people in my unit that he kicked him in the nuts". AB could not recall from whom he had heard this story but had said "everybody in the unit was talking about it, heaps of people were talking about it".
146 With reference to WW's allegation that prior to raising his leg, the applicant had said to him words to the effect of "do you want your balls where your mouth is?", Mr Gibian submitted the applicant denied that statement. He submitted the recollection of WW was not credible and accordingly, should not be accepted by the Commission. He contended WW's evidence that the applicant's actions came as a complete surprise and nothing had occurred immediately prior to the incident to make him think he may be kicked, was utterly inconsistent with the suggestion that the applicant had made the threat as alleged.
147 In relation to the incident, Mr Gibian stated it was clear the applicant had raised his leg whilst WW was standing in front of him without any intention to connect with him or cause harm or injury to him. It was his submission that the evidence in this matter supported a finding that the applicant either made no contact with WW or, in the alternative, made some minimal contact with his leg inadvertently and without knowing that he had done so.
148 Mr Gibian submitted the allegation of misconduct was grounded in the findings of Ms Klaassen that an assault had occurred. In that regard, he contended an assault involved an act by which a person intentionally or recklessly applied unlawful force to another person. A person must have actually averted to the risk and chosen to ignore it: Valance v The Queen (1961) 108 CLR 56. In this matter, there was no evidence to suggest that the applicant averted to the risk of making contact with WW and chose to ignore it. Moreover, the Department had not demonstrated the applicant intentionally or recklessly made contact with WW. He conceded that an assault may occur, in a technical sense, as a result of a very slight contact with another person. Against that backdrop, he further submitted if the extent of any assault was limited to a slight or inadvertent contact with WW then the finding made by the Department that misconduct based on an assault by kick cannot be sustained.
149 Mr Gibian submitted that in the event the Commission formed the view the misconduct, as alleged, occurred, then it must consider whether the sanction of dismissal was warranted in all the circumstances. Further, in the case of a dismissal pursuant to the Public Sector Employment and Management Act, the Commission is required to consider whether other disciplinary measures available could have been applied: Director of Public Employment v Public Service and Professional Officers' Association Amalgamated Union of NSW (on behalf of Brown). Mr Gibian also referred to the principles to be considered when assessing whether misconduct was sufficient to warrant summary dismissal identified by Connor C in Corbeski v Bluescope Steel (AIS) Pty Limited [2006] NSWIRComm 1170 at [41].
150 With reference to the incident, Mr Gibian stated the applicant had accepted from the outset that he was not entirely without fault. He referred to the applicant's interview with Ms Klaassen where he accepted that he may have been reckless in raising his leg. However, in his statement filed in these proceedings the applicant had accepted that it was "probably a silly thing to throw out my leg in the manner I did". Notwithstanding that statement, he said the applicant had consistently said he did not intend to make any contact with WW and there was no malice involved. Further, both Ms Klaassen and the Department had accepted that consistent with the applicant's evidence, he did not intend to make contact with WW or cause injury.
151 Mr Gibian submitted the most that could be said in relation to the conduct relied upon by the Department to dismiss the applicant was that he lifted his leg in response to the annoying and harassing conduct of WW and unintentionally made contact with him. In the circumstances of this case, the applicant's conduct did not warrant dismissal when viewed against the following factors:
· the applicant's 14 years of unblemished service with the Department;
· the applicant's act in raising his leg was at most a momentary reaction and it could not be said to have involved any element of premeditation;
· the act of the applicant raising his leg was prompted by the annoying and harassing conduct on the part of WW and his repeated refusal to comply with directions to move away and give the applicant space;
· on any version of events, no lasting injury was incurred by WW as a result of the incident;
· arising out of the incident no criminal investigation was pursued nor were any charges laid against the applicant;
· the incident was entirely out of character of the applicant who was otherwise regarded as an experienced and reliable employee of the Department.
152 Mr Gibian submitted the Commission was obliged to determine whether the termination of the applicant's employment was harsh in regard to the applicant's personal economic situation, as well as whether dismissal was a disproportionate penalty in regard to the misconduct alleged: Byrne & Anor v Australian Airlines Ltd (1995) 61 IR 32 at 72, Pacific Power v Crump (1993) 48 IR 296, Wells v Commissioner of Police (2000) 100 IR 106 at 118 and AWU (NSW) (on behalf of Stojanovski) v Bluescope Steel (AIS) Pty Ltd (2004) 137 IR 211 at [30].
153 Mr Gibian also submitted that summary dismissal on the grounds of misconduct can have serious and sometimes long term implications for the employee: New South Wales Fire Brigade Employees' Union (on behalf of Natoli) v New South Wales Fire Brigades [2005] NSWIRComm 440 at [222] and Franklins Ltd v Webb (1996) 72 IR 257 at 261:
We consider that the significance of decisions by employers to dismiss employees in circumstances such as occurred here cannot be over-emphasised. Mr Webb is a man of advancing years with long service and an unblemished employment record. The consequences for him of the employer's decision to dismiss are considerable - not only pecuniary considerations arise but also issues such as loss of self-esteem and confidence, difficulty in obtaining future employment and loss of social standing; tremendous upset upon the individual concerned and his family, with serious consequences quite unanticipated at the time of dismissal, must also be taken into account.
154 Mr Gibian submitted the applicant's dismissal was harsh, that he had worked for more than 14 years with the Department and had intended to continue working within Juvenile Justice until his retirement. Further, given the applicant's age, residential location and having regard to the current economic circumstances, the applicant was likely to find it very difficult to find employment, particularly employment with comparable remuneration and security to his former position. The applicant had also suffered significantly from symptoms of anxiety and depression as a result of the disciplinary investigation conducted by the Department and his dismissal. He and his family had suffered financially and the Category One notification to the Commission for Children and Young People had narrowed his future employment options.
155 Simply put, it was Mr Gibian's submission that dismissal was a harsh penalty, having regard to the personal circumstances of the applicant, the history of his employment and the availability of alternative penalties under the Public Sector Employment and Management Act. Mr Gibian sought an order that the applicant be reinstated to his former position as youth officer. In support of that position, he stated there was no suggestion in this matter that reinstatement was impracticable. In that regard, he referred to the evidence of Mr Hockley, the Unit Manager of the Bouddhi Unit, who had worked with the applicant for over ten years and in cross examination had described the allegation that caused the applicant's dismissal as being "entirely out of character". Mr Hockley also expressed confidence that if the applicant was reinstated, he would not be subject to an allegation of the type that led to his dismissal "for another ten thousand years". It was also Mr Hockley's evidence that the applicant was a good worker.
156 The applicant also provided a number of character references from former and current colleagues. Mr Gibian stated the applicant also sought a direction or recommendation from the Commission that the Department withdraw its notification to the Commission for Children and Young People. In that regard, he referred to the guidelines published by the New South Wales Ombudsman and the Commissioner for Children and Young People and contended those guidelines made it clear that the use of physical force, where that force is trivial or negligible, is not reportable conduct.
157 In the alternative, should the Commission be satisfied the alleged assault did not occur or that any use of physical force was trivial or negligible, the basis of the Department's notification disappears. In those circumstances, the Commission should recommend or direct that the notification be changed from a Category One to a Category Two notification. See Sexton v Public Employment Office by its Agent the Director General of the Department of Juvenile Justice [2005] NSWIRComm 1172.
For the Respondent