Public Employment Office Department of Attorney General and Justice (Corrective Services NSW) v Silling

Industrial Relations Commission (NSW)|2012-10-31|Before: Haylen J, Backman J

HAYLEN J 1I agree with the order proposed by Backman J. In the first instance proceedings, the Commissioner considered all of the arguments propounded on behalf of the appellant. In substance, the Commissioner decided that the termination of Mr Silling was harsh, unjust and unreasonable. That finding was made in the context of Mr Silling having a long and unblemished record as a Correctional Officer and where there was no acceptable evidence that the performance of his duties would be compromised by his recent out-of-hours criminal history. Indeed, Mr Silling was supported by references given by numerous Correctional Officers, including supervisors. Importantly, since the last incident Mr Silling had been diagnosed as suffering from depression and anxiety and was being treated with medication. His wife gave evidence that medication and counselling was having a positive effect on her husband and that he had accepted responsibility for his actions and now had a better understanding of the causes of his anger. The assaults on his wife (twice) and his daughter were rightly condemned by the Commissioner. The Commissioner, nevertheless, as she was obliged to do, dealt with that conduct in the exercise of the very wide discretion conferred by s 84 of the Industrial Relations Act . 2The termination of Mr Silling's employment appears to have been ill-considered and somewhat of an over-reaction. The view seems to have been taken that Mr Silling had, in effect, three criminal convictions, when two of the matters were in fact dealt with by way of a bond without proceeding to conviction. The appellant was unable to convincingly establish why the same out-of-hours conduct dealt with so leniently by the Local Court would warrant the harshest industrial penalty, namely, the loss of employment. The disproportionate nature of this penalty was palpable. 3The findings of the Commissioner that the termination was harsh, unjust and unreasonable and the Commissioner's decision to re-instate were reasonably open to her. Having regard to the substance of the Commissioner's decision, no error has been demonstrated that warrants the granting of leave to appeal.

BACKMAN J 4On 17 June 2011, Michael Silling was dismissed from his employment as a senior correctional officer by Corrective Services, New South Wales (CSNSW). Mr Silling sought reinstatement to his former position under the provisions of Pt 6 of Ch 2 of the Industrial Relations Act 1996 (the Act). 5The application was heard by Commissioner Bishop. Following a hearing, the Commissioner reinstated Mr Silling: Silling v Corrective Services NSW [2011] NSWIRComm 1056. CSNSW subsequently applied for leave to appeal and appeal the decision and orders under s 187 of the Act.

Background 6At the time of his dismissal, Mr Silling had been employed by CSNSW for 15 years. On 17 June 1998, he was charged under s 61 of the Crimes Act 1900 with common assault following a domestic dispute with his wife. Mr Silling pleaded guilty to the offence and on 8 July 1998 the offence was found proven and he was released upon entering into a recognisance under s 556A of the Crimes Act subject to conditions one of which was to attend for counselling as directed or agreed. 7On 2 November 1998, Mr Silling's employer issued a letter of warning which referred to the circumstances of the offence and brought to his attention the following matters: The use of violence against a woman is abhorrent and can never be justified. It is quite clear to me, after reading the Police Facts Sheet and the Sentencing Magistrate's comments, that you conducted yourself in an appalling manner for which you should be ashamed. I expect all officers, whether on duty or not, to act lawfully at all time. Section 3 of the Code of Conduct and Ethics reminds staff that behaviour off duty will be of concern to the Department if it is unlawful or if it brings, or has the potential to bring, the Department into disrepute. It also states "Any private activity which may adversely affect your job performance will be regarded as a work-related issue. Such activity could include alcohol abuse, drug use or violent behaviour". You should consider yourself very lucky that you have been given the opportunity to address your problems and to change your behaviour. I expect you to comply with all directions issued by your probation officer. I have decided to issue you this warning in the expectation that you have learned from this incident and will not re-offend. Be warned, should it come to my attention in the future that you have behaved in a similar manner, I may not be so lenient. A copy of this letter will be placed on your personal file. 8On 17 October 2002, Mr Silling used force on an inmate. He reported the incident to the Deputy Governor and the following day the matter was referred to the Professional Conduct Management Committee. The Committee considered the matter and came to the view that the use of force was justified. The incident had involved Mr Silling's failure to obtain a video camera which was contrary to a requirement to video incidents involving high-risk inmates. The Committee recommended that no further action be taken. 9On 8 October 2008, Mr Silling assaulted his daughter during an argument, who, at the time, was 24 years of age. He was again charged under s 61 of the Crimes Act. He pleaded guilty to the offence at Goulburn Local Court, the offence was found proven, and he was placed on a recognisance under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (CSPA) to be of good behaviour for 12 months. No further conditions were imposed. In the proceedings, the learned magistrate took into account that immediately following the incident Mr Silling had reported the matter to the police and admitted his involvement. 10According to CSNSW, this second incident did not result in any internal disciplinary action being taken against Mr Silling, "due to an administrative oversight". 11On 26 January 2011, Mr Silling again assaulted his wife during an argument. On that occasion, according to the police facts, Mr Silling attended the police station at the request of police. He took part in a record of interview and made full admissions. He was again charged with common assault and on 23 February 2011, following a plea of guilty, he was convicted and placed on a recognisance under s 9 of the CSPA to be of good behaviour for nine months subject to a number of conditions which included undergoing anger management counselling and continuing to take prescribed medicine. The latter condition was based on information before the Local Court that Mr Silling had been diagnosed with a mild form of depression and anxiety following the offence and was taking medication for depression and anxiety. 12Following the conviction for the third offence, CSNSW wrote to Mr Silling on 9 March 2011 notifying him that it was considering taking disciplinary action against him in accordance with s 48 of the Public Sector Employment and Management Act 2002 (PSEM Act). The letter also advised Mr Silling that he had 14 days from receipt of the letter to make submissions and provide any additional information before a final decision was made. He was also advised that before any final decision, CSNSW would consider the following matters:

the conviction
the objectives of Part 2.7 of the Public Sector Employment and Management Act 2002 as stated in section 41 (copy attached)
the following court matters: (i) On 8 July 1998 you received a bond for 18 months by way of a recognisance pursuant to Section 556A of the Crimes Act 1900 and supervision under the NSW Probation Service for Common Assault (DV). (ii) On 22 October 2008 you received a Section 10 Bond for Common Assault (DV).
the following employment matters: (i) On 23 October 2002 you were counselled in relation to the non use of the video during a use of force on inmate Colin Davies at Goulburn HRMU.
any submissions that you wish to provide to me. 13Mr Silling was also invited to take part in an interview with Deputy Commissioner Ian McLean, the author of the letter. 14On 7 April 2011, Mr Silling responded to the letter of 9 March 2011 setting out his submission and requesting that he remain in the employment of CSNSW. His response also attached a number of testimonials from his supervisors and a medical certificate certifying that he was suffering from anxiety and depression. 15On 12 April 2011, Mr Silling took part in an interview conducted by Deputy Commissioner McLean. 16The letter of dismissal, which was dated 10 June 2011 and signed by Deputy Commissioner McLean, is extracted in full below: I refer to my letter dated 9 March 2011 to you where I advised you that I had been informed that you had been convicted and found guilty of an offence that is punishable by imprisonment for 12 months or more, namely common assault and that disciplinary action was being considered against you. I have considered the court penalties imposed against you and the submissions that you provided to me on 12 April 2011 as well as the following matters: Criminal matters (1) On 8 July 1998 you received a bond for 18 months by way of a recognisance pursuant to Section 556A of the Crimes Act 1900 and supervision under the NSW Probation Service for Common Assault (DV). (2) On 22 October 2008 you received a Section 10 Bond for Common Assault (DV). Employment matters (1) On 23 October 2002 you were counselled in relation to the non use of the video during a use of force on inmate Colin Davies at Goulburn HRMU. Taking into consideration all of the above matters, I have now decided that you are dismissed from the Public Service.

Decision at first instance 17In the Decision, Commissioner Bishop set out the evidence and the submissions of the parties in detail. The facts, she noted, were largely unchallenged except for one issue which concerned whether Mr Silling, on his own initiative, had reported the assaults to the police or whether he had attended the police station only after it became apparent that his wife had contacted the police and his daughter had made it clear she intended to contact the police. On that issue, Commissioner Bishop found (at [130]): I accept that Mr Silling took immediate and prompt action to report the incidents himself, cooperated in police interviews, made admissions and subsequently pleaded guilty to the very serious offences he had committed. Offences committed against his wife and daughter (in the latter case with his infant granddaughter witnessing the assault). He also promptly reported each incident to his Managers at Goulburn Correctional Complex and provided detail about his court appearances and resulting convictions. and, again, at [176] (second dot point): In relation to each incident of domestic violence he self-reported to the Police in a timely fashion and co-operated fully in the consequences that then flowed including pleading guilty to the charges laid. 18The Commissioner also remarked that Mr Silling's conduct in relation to the three assaults was, "reprehensible and abhorrent". She returned to this matter a number of times during the Decision, referring to Mr Silling's conduct as "reprehensible" and to the offences as "serious matters ... rightfully regarded with abhorrence and opprobrium by the community generally". At the same time she noted that the issue for determination was whether, "in all the relevant circumstances it was harsh and/or unjust and/or reasonable for CSNSW to dismiss Mr Silling from his employment as a consequence of those offences ..." (at [131]). 19Commissioner Bishop took into account the uncontested evidence of Mr Silling's wife and the evidence of Mr Silling, including his demeanour, and concluded that Mr Silling was genuinely remorseful for his actions. She also accepted that Mr Silling had sought appropriate counselling and medical treatment which was having a positive effect. She acknowledged the ongoing improvement in relationships with his wife and daughter which she said was indicative of his acceptance of his behaviour and its consequences, as well as his need for treatment and counselling. 20The learned Commissioner also referred to Mr Silling's unblemished 15 year employment record and referred in this context to a number of testimonials from his senior supervisors who commended, and offered support for, his work as an employee of CSNSW. 21With regard to an issue whether Mr Silling had been counselled in relation to the workplace incident on 17 October 2002, Commissioner Bishop found that this had not occurred. She pointed to the letter of 23 October 2002 which advised that the Committee had agreed the use of force was justified and recommended that no further action was required. The letter made no reference to counselling. Accordingly, she concluded that the Deputy Commissioner's reliance on that incident as an "employment matter" in considering whether to impose disciplinary action, was incorrect. 22The Commissioner set out the relevant statutory scheme under ss 41 and 48 of the PSEM Act which the CSNSW was required to follow when considering disciplinary action based on an officer's conviction for a "serious offence" (relevantly, one punishable by imprisonment for 12 months or more). On this issue, she accepted the respondent's submissions (the applicant below) that no evidence had been led to link, or relate, the concepts contained in those sections to the particular circumstances. 23Section 41 of the PSEM Act sets out the objects of Pt 2.7 of that Act. The objects deal with the management of conduct and performance of officers in the Public Service. Section 48 falls within Pt 2.7. Section 41 provides: The objects of this Part are as follows: (a) to maintain appropriate standards of conduct and work-related performance in the Public Service, (b) to protect and enhance the integrity and reputation of the Public Service, (c) to ensure that the public interest is protected. 24Section 48 provides: (1) If an officer is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more, or is convicted elsewhere than in New South Wales of an offence that, if it were committed in New South Wales, would be an offence so punishable, the appropriate Department Head may: (a) decide to take disciplinary action with respect to the officer, or (b) decide to take remedial action with respect to the officer. (2) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking. (3) A reference in subsection (1) to the conviction of an officer for an offence punishable by imprisonment for 12 months or more includes a reference to the officer having been found guilty by a court of such an offence but where no conviction is recorded. 25Disciplinary action is defined in s 42(1) of the PSEM Act. It includes a range of disciplinary measures from dismissal to issuing a caution or reprimand. 26Commissioner Bishop addressed the objects in s 41, noting that there was no evidence as to how Mr Silling's work-related performance was, or had been, affected by the convictions, and noting further that there was no evidence that the convictions have affected, or will affect, the integrity or reputation of the Public Service, specifically, CSNSW, or that the public interest had been adversely affected. Instead, she found that mere assertions and assumptions had been made by CSNSW to the effect that the convictions relating to assaults in a domestic violence context were relevant because Mr Silling's duties involved enforcing the law against persons with criminal convictions. In this context, Commissioner Bishop referred to the two earlier offences in relation to which no action had been taken by CSNSW, apart from the letter of warning issued after the first offence in 2008. She also took into account that between 2008 and 2011, there had been no concerns expressed by Mr Silling's supervisors about his work. Rather, those supervisors had written in support of his continued employment. Also taken into account by Commissioner Bishop was the absence of any reference to Mr Silling having been suspended from duty, or directed to go on leave, following the notification of the third offence for which he was convicted in 2011. 27Commissioner Bishop then directed her attention to the letter of termination of 10 June 2011. She found that the letter failed to advance any reasons for his termination. She also adverted to the "great reliance" placed by the CSNSW on Mr Silling's admissions and his apology for, "tarnishing the reputation and integrity ... and for harming the good standing of all corrective services officers", commenting that there was no evidence of any endorsement of that opinion (by his employer). Mr Silling's apology had been proffered during his interview with Deputy Commissioner McLean, which the Commissioner observed took place at the request of Mr Silling, and, she said, was very much a "mea culpa" exercise during which he expressed remorse for his actions, accepted responsibility, explained the relevant circumstances and revealed that he was seeking remedial help and assistance. 28Commissioner Bishop also accepted the respondent's submissions that Mr Silling's dismissal had visited significant hardship and financial detriment upon him. She noted that he had lost a secure job and a career to which he was dedicated, valued and enjoyed. She found that Mr Silling had been forced to accept casual labouring work involving travelling of some distance, and that he had taken appropriate action to mitigate his loss. 29The Commissioner also considered some authorities provided by the respondent which dealt with the principles on the necessity of establishing a link between off-duty conduct and employment. Notwithstanding the submission of CSNSW to the contrary, she accepted those principles as being "very relevant" to her consideration. She referred in particular to Ross V-P's exposition of the principles in Rose v Telstra Corporation Limited - 1444/98 N Print Q9292 [1998] AIRC 1592 (4 December 1998) which she extracted from Anthony Farquharson v Qantas Airways Limited [2006] AIRC (Print PR 971685, 10 August 2006). In Rose v Telstra, Ross V-P formulated a summary of principles that may be applied when considering whether conduct "out of hours" may justify a dismissal from employment. Ross V-P said: It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited:

the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
the conduct damages the employer's interests; or
the conduct is incompatible with the employee's duty as an employee. In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee. 30In referring to those principles, Commissioner Bishop accepted that CSNSW had a "legitimate concern" (a reference to Farquharson at [22]) that Mr Silling's conduct constituted a "valid reason" for his termination. However, she again pointed to the absence of evidence of what was the concern, and whether it did, or was likely to, damage CSNSW's interests, or what was the connection between Mr Silling's conduct and his employment. The Commissioner continued on this topic (at [155] to [158]): [155] I accept the submissions of Mr Hatcher that there needs to be such a connection, based on the cases he has cited. CSNSW has not established, on the evidence, that there was a relevant connection between Mr Silling's off-duty conduct and his employment. I do not consider that the mere operation of the provisions of ss 41 and 48 of the PSEM Act mean that such a connection does not have to be to be established by a public sector employer in considering whether or not to dismiss an employee as a consequence of off-duty conduct which concerns a criminal conviction. I consider that each case would have to be determined on its relative merits and all the relevant circumstances applicable. [156] In relation to Mr Silling, I am just not prepared to make findings based on assertions or assumptions of an abstract principle in the absence of actual evidence. [157] It has not been suggested that Mr Silling's three criminal convictions constituted or indicated a "rejection or repudiation of the contract of employment contract by the employee". That it was confirmed by Mr Silling's written submissions (his 9 April letter), and subsequent oral submissions (12 April interview) as made to Deputy Commissioner McLean, as well as his written and oral evidence to this Commission. [158] I do not consider that by his three acts of domestic violence, reprehensible as they might be, he had any intention to, nor did he, repudiate or reject his contract of employment with CSNSW. 31The Commissioner then turned to a consideration of the relevant case law on the meaning of the expression "harsh, unreasonable or unjust" (as used in s 84(1) of the Act) and the principles to be applied when considering whether a dismissal was "harsh, unreasonable or unjust". 32After considering the authorities, Commissioner Bishop rejected the submissions advanced on behalf of CSNSW that there was a fundamental incompatibility with Mr Silling's conduct and his role as a law enforcement officer, and, that the incompatibility was so obvious as to be beyond question or necessity of testing. 33The Commissioner accepted the unchallenged evidence of Mr Silling's wife which she found, "very relevant and compelling". She noted that Mrs Silling had also been employed at Goulburn Correctional Complex as a senior correctional officer for 14 years and had had the opportunity to observe and experience the work stressors under which she and her husband operated and which on her evidence, and that of Mr Silling, had contributed to the problem which had arisen in their personal lives. The Commissioner found relevant Mrs Silling's evidence that Mr Silling's counselling has had a dramatic and profound effect which had improved his relationship with his daughter. Commissioner Bishop remarked that she found it difficult to understand why CSNSW did not interview or speak to Mrs Silling who was in fact present outside the room when Mr Silling had his meeting with Deputy Commissioner McLean on 12 April 2011. 34Commissioner Bishop concluded, after consideration of the evidence and submissions, that Mr Silling's dismissal was, "harsh and it was unjust and it was unreasonable". She then set out a brief summary of the reasons for her conclusion (at [174]-[175]): [174] In summary, that conclusion has been arrived at on the basis that dismissal was too harsh a penalty for the out-of hours conduct, there has not been the necessary connection established between such conduct and mr Silling's emplyment (sic), there has been no evidence put forward as to the reasons why dismissal was considered necessary and no evidence that the conduct in question has already, or will, adversely affect the integrity and reputation of both the Public Service and CSNSW nor why it is in the public interest to dismiss a man with a 15 year unblemished record at a senior level in CSNSW. [175] There are also procedural unfairness issues raised by the total absence of any reason being provided by CSNSW in the 10 June 2011 letter of dismissal (other than the mere fact of the 3 convictions and "employment matters") as to why it considered that it was necessary to dismiss him from his position after 15 years unblemished and exemplary service. Nor was any acknowledgement given to Mr Silling as to whether or not the written and oral submissions he had made had in fact even been considered by Deputy Commissioner McLean before the decision to dismiss was made. 35The Commissioner then proceeded to set out in point form every factor she had taken into account for her conclusion that the dismissal was, "harsh and unjust and unreasonable", stating that each factor was, "applicable to each of those three terms". The factors are set out in [176] of the Decision, and are extracted in full below: [176] In reaching the conclusion that the dismissal of Mr Silling was harsh and unjust and unreasonable, I have also taken the following matters into account (which are applicable to each of those three terms): Mr Silling has a 15 year totally unblemished work history with CSNSW and during that time had received commendations and undertaken additional training at his own initiative to enhance his skills but which was also of benefit to CSNSW. In relation to each incident of domestic violence he self-reported to the Police in a timely fashion and co-operated fully in the consequences that then flowed including pleading guilty to the charges laid. In relation to each incident of domestic violence he self-reported immediately to his managers at the Goulburn Correctional Complex. The convictions he received were all at the lower end of the scale available to the Local Court. He co-operated fully and appropriately with the terms of the Bonds imposed by the Courts and the Probation and Parole requirements (as evidenced by the notes attached to the affidavit of Mr Cosgrove). He received a warning after the first assault conviction in 1998 but there is no evidence that the fact of this conviction subsequently adversely affected his work performance or reflected on the integrity or reputation of either the Public Service or CSNSW in any way. Whilst he was issued with a 'show cause' letter following the 2008 assault conviction, for some unknown "administrative oversight" (never fully explained) no disciplinary action of any kind was taken. There is no evidence that the fact of this second conviction subsequently adversely affected his work performance or reflected on the integrity or reputation of either the Public Service or CSNSW in any way. There has been no evidence advanced as to the reasons why it was considered necessary for CSNSW to dismiss Mr Silling. There has been no evidence advanced as to the reasons why it was considered by CSNSW that dismissal was the appropriate penalty to be imposed given the range of alternative penalties available under the PSEM Act. There has been no evidence advanced as to why the fact of his three criminal convictions means that Mr Silling would be unable to continue to carry out his duties as a Senior Correctional Officer in the same exemplary way that he had done for the previous 15 years. There has been no evidence advanced as to any adverse affect Mr Silling's reinstatement would have in relation to his work colleagues, superiors or the inmates at the Goulburn Correctional Complex. There has been no evidence from those with whom he worked or by whom he was supervised by that there was any impracticability in reinstating Mr Silling. There was no evidence that the remedial actions Mr Silling has taken and continues to take to address his issues and make positive change for the future has been acknowledged or taken into account in any way by the decision maker. Mr Silling has been dismissed from a secure Public Service position and from what was his long term career. Mr Silling is genuinely remorseful for his actions and has taken remedial action which is on-going to address his issues and make positive change for the future. Mrs Silling has taken redundancy from her position as a Senior Correctional Officer at the Goulburn Correctional Complex and therefore will no longer experience the work stresses she maintained had contributed to the first two incidents. Mr Silling lives in a regional area and has been unable to obtain comparable alternative employment other than casual labouring. Mr Silling's chances of securing comparable alternative employment within the region are remote. Mr Silling's dismissal has resulted in some considerable financial losses in comparison to his former entitlements and will continue to do so given his difficulty in finding comparable employment. 36Finally, Commissioner Bishop dealt with the issue of reinstatement. She referred to the difficulty of assessing the public interest in the context of assessing the appropriate remedy when no evidence had been forthcoming as to why reinstatement was impracticable. She also noted the absence of evidence concerning issues of trust and confidence or concerns as to Mr Silling's ability to continue to perform his duties. The latter observation was derived from evidence led by CSNSW in the proceedings below. The evidence was contained in an affidavit of Steven Cosgrove, a solicitor employed by CSNSW. Mr Cosgrove deposed that CSNSW, "does not have trust and confidence in the Applicant given his history of criminal offences and fundamental incompatibility of that history with his roll as a law enforcement officer and that reinstatement would not be practicable in the circumstances". Commissioner Bishop found that it would not be impracticable to reinstate Mr Silling and ordered accordingly.

Leave to appeal 37A decision whether a dismissal was harsh, unreasonable or unjust involves mixed issues of fact and law, rather than the exercise of discretion: Evans v NSW Police [2005] NSWIRComm 404 per Walton J, Acting President, at [1] with whom Staff J agreed. Save for one matter (which I will address below), the appellant in this case did not dispute the findings of fact at first instance. It has been said many times that leave to appeal will not be granted lightly: see, for example, Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381-382; King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52] and WorkCover Authority of New South Wales v Blacktown City Council (2003) 128 IR 361 at [82]-[89]. Having considered all the material, I am of the view that the appellant has failed to establish any error to warrant appellate intervention. For reasons which follow, I would refuse leave to appeal.

Appeal grounds 38On appeal, the appellant relied essentially on three grounds of appeal which may be broadly characterised in the following way: (1) misapplication of the law and principles on the connection between out-of-hours conduct and employment; (2) erroneous aggregation or conflation of tripartite test of "harsh, unreasonable or unjust"; (3) error in consideration of whether the dismissal was harsh.

Connection between out-of-hours conduct and employment 39The appellant's primary contention in relation to the first ground of appeal was that the principles relevant to establishing a nexus between employment and out-of-hours conduct were wrongly applied by Commissioner Bishop. It was contended that primacy should have been given to the statutory scheme under the PSEM Act, which provides the necessary connection between out-of-hours conduct (the convictions) and the employment. According to the appellant, ss 41 and 48 are decisive in answering the question of whether there exists the necessary connection, and Commissioner Bishop failed to have appropriate regard to those provisions in determining the issue. Instead, she wrongly reformulated the test set out in Rose v Telstra and Farquharson by focussing on whether Mr Silling's three convictions constituted, or involved, a rejection or repudiation of his contract of employment (see [157] and [158] of the Decision). 40According to the respondent, the appellant's contention that Commissioner Bishop wrongly reformulated the test is misplaced having regard to the gravamen of the test as contained in the relevant passage from Rose v Telstra which sets out the summary of the relevant principles. 41The relevant passage from Rose v Telstra has been extracted earlier in this decision. What I draw from that passage is that Ross V-P limited the circumstances in which employment may be validly terminated by reason of out-of-hours conduct to three categories of conduct. This was followed by a statement, directed generally to those three categories, ("In essence, the conduct complained of must be of such gravity or importance as to indicate a rejection or a repudiation of the employment contract by the employer"). In my view, the Commissioner did not reformulate the test. Rather, her adoption of the general statement from Rose v Telstra was indicative of her conclusion that the necessary connection was not established (because she did not consider on the evidence before her that Mr Silling's conduct was of sufficient seriousness, or gravity, to fall within the limited circumstances identified by Ross V-P). 42I also reject the contention that ss 41 and 48 of the PSEM Act provide the necessary connection between the out-of-hours conduct and employment. Section 48 provides for the taking of disciplinary or remedial action in relation to an employee who has been "convicted" of a serious offence. It does not require a dismissal, but allows for a range of disciplinary or remedial action. As the respondent contended, s 48 implicitly recognises that there will be some offences in which there is no connection, or only a slight connection with employment. Such instances may warrant no action being taken or only minimal action. Section 41 does no more than set out the objects which are applicable to the decision-maker's consideration of s 48. The primary decision-maker, here Deputy Commissioner McLean, was required to observe the provisions of ss 41 and 48 in determining what appropriate action to take. Commissioner Bishop's consideration required a different focus, namely, whether Mr Silling's dismissal, effected under s 48, was harsh, unreasonable or unjust. 43The appellant also relied upon a number of decisions dealing with the dismissal of police officers, in support of the contention that the question of a connection between a conviction and employment provided by ss 41 and 48 of the PSEM Act is consistent with considerations of public policy and standards of conduct expected of persons in public sector employment, such as police officers. 44I would agree that there are circumstances in which the out-of-hours conduct of public officers may warrant, or justify, the officer's dismissal. However, reliance on cases dealing with the dismissal of police officers based on out-of-hours conduct does not necessarily assist the appellant. As the respondent pointed out, special considerations apply to police officers who are required at all times to enforce the law, and, in any event, there are a number of authorities in which the dismissal of a police officer for committing an offence, has been held to be harsh, unjust or unreasonable: see, for example, Commissioner of Police v Dobbie (2006) 157 IR 44; Evans; Flanagan v Commissioner of Police (2010) 192 IR 88. What these cases demonstrate, in conformity with the conventional approach, is that each application must be decided by reference to the particular facts and circumstances presented on the application. 45There was no contest that Mr Silling's conduct fell within s 48 of the PSEM Act. What Commissioner Bishop was required to do was to consider whether the disciplinary action taken in relation to the impugned conduct (that is, his dismissal), was harsh, unreasonable or unjust: Director-General of the Department of Juvenile Justice v Public Service Association (on behalf of Brown) [2008] NSWIRComm 221; 184 IR 134 at [22]. The issue as to whether there was a connection between Mr Silling's out-of-hours conduct (the convictions) and his dismissal was relevant to Commissioner Bishop's consideration as a factor she was required to take into account. The Commissioner undoubtedly took it into account, regarding it as "very relevant" to her consideration. Moreover, her approach was consistent with the approach taken by the Full Bench in NSW Attorney-General's Department v Miller [2007] NSWIRComm 33. 46Mr Miller was a public servant who was dismissed from his employment for misconduct under s 46 of the PSEM Act, a provision which, like s 48, falls within Pt 2.7. The misconduct included sexual harassment of a fellow employee while off-duty, that is, "out-of-hours" conduct. The Full Bench adopted the principles formulated in Rose v Telstra in its consideration of whether Mr Miller's dismissal was "harsh, unreasonable or unjust": at [51] [52] (see also [115] [116]). At [51], the Full Bench said: The other issue of a general nature was whether the appellant was entitled to hold Mr Miller accountable for alleged misconduct that occurred away from the workplace and outside of working hours. The appellant's approach at first instance was that it had a reasonable, legitimate expectation that staff, including Mr Miller, when interacting with other staff inside and outside the workplace, would conduct themselves in a manner that would not have consequential adverse implications for workplace relations. Reference was made to the Harassment Prevention Policy that: Harassment can occur both in and outside of the work environment. If an incident occurs outside of work it may still be considered harassment if it impacts on workplace relations. 47At [52], the Full Bench said that there was no reason to doubt the correctness of the statement extracted from the Harassment Prevention Policy at [51] but that the statement serves to be clarified by the decision of Ross V-P in Rose v Telstra. The Full Bench set out the summary of principles posited by Ross V-P which I have extracted above. These observations of the Full Bench in Miller represent a clear endorsement of the application of the principles in Rose v Telstra to unfair dismissal cases heard and determined under the Act. 48Nor do I agree that Commissioner Bishop did not have appropriate regard to ss 41 and 48 of the PSEM Act in her consideration of whether Mr Silling's dismissal was "harsh, unreasonable or unjust". She addressed the provisions, noting in relation to s 41 the absence of evidence as to how Mr Silling's work-related performance was affected by the convictions, and, the absence of evidence as to the affect, if any, of the convictions on the integrity or reputation of the Public Service, or that the public interest had been adversely affected. 49The appellant also contended that the Commissioner's conclusions with regard to the lack of evidence of any impact of the convictions on Mr Silling's work performance was a false issue because his termination was not based on any issue of capacity to perform his duties. While I agree that Mr Silling's termination was not based directly on his work performance, I do not agree that the Commissioner was not entitled to treat it as relevant to her consideration. The letter of warning of 2 November 1998, issued after the first offence, directs Mr Silling's attention to a passage in the Code of Conduct and Ethics which states, "Any private activity which may adversely affect your job performance will be regarded as a work-related issue. Such activity could include ... violent behaviour". Although Commissioner Bishop did not refer expressly to that passage, it serves to demonstrate that any reliance on a conviction as adversely impacting on work, or "job", performance (where the conviction concerns out-of-hours conduct) could not be properly described as a "false issue". 50The appellant also complained that Commissioner Bishop wrongly applied the test in Rose v Telstra because the test does not require any evidence of actual damage to the employer. Reliance for this proposition was sought to be found in Kolodjashnij v J Boag and Son Brewing Pty Ltd [2010] FWAFB 3258. However, the passages from that decision relied upon by the appellant do not establish the proposition. They are passages from the decision at first instance extracted by the Full Bench for the purpose of setting out relevant parts of that decision. In any event, a reading of Commissioner Bishop's decision on this issue demonstrates that what Commissioner Bishop in fact said (at [154] of the Decision) was that there was no evidence of any concern on the part of CSNSW that Mr Silling's conduct, "... did, or was likely to damage CSNSW's interests in any way ...". The reference to a likelihood of damage is entirely consistent with the principles formulated in Rose v Telstra. Moreover, those principles make clear that any conduct "likely to cause serious damage" to the employment relationship, must be viewed objectively, that is, the subjective views of a dismissed public officer (relevantly, here, Mr Silling's admissions and apology for tarnishing the reputation and integrity of his office), in the absence of evidence, or sufficient evidence from the employer, carry little, or no, weight.

Whether conflation of tripartite test 51The appellant submitted that Commissioner Bishop erred by impermissibly aggregating, or conflating, all of the evidence to reach a finding that the dismissal was harsh and unjust and unreasonable. According to the appellant, the Commissioner's approach on the matter was contrary to the authority of National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at [65]. What Commissioner Bishop should have done, according to the appellant, was apply the orthodox approach which involves a separate analysis of each of the three limbs and the test by first ascertaining whether the dismissal was justified by reference to the connection with employment, and, secondly, considering, as a discrete matter, whether the dismissal was a harsh penalty. Further, the Commissioner's erroneous approach was said to have led to a second error which was the failure to address properly the question of harshness, namely, whether the conduct, although it could justify dismissal, was such that the dismissal was "disproportionate to the gravity of the conduct": Department of Health v Perihan Kaplan [2010] NSWIRComm 65 at [28] referring to Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465. 52In Cuno, the decision-maker at first instance dismissed the appellant's application, ultimately finding that the termination of employment by the respondent of its employee was not harsh, unreasonable or unjust. An appeal from the decision by the appellant was dismissed by the Full Bench. During the course of its reasons, the Full Bench, in concluding remarks, said (at [64] [65]): [64] Finally, we stress the importance of a Member of the Commission at first instance in s 84 proceedings dealing expressly and specifically with the tripartite statutory test. As the Full Bench observed in Outboard World Pty Ltd (t/a Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167 at 183, in order to avoid the possibility of misunderstanding or error, the tribunal should state explicitly the basis upon which it is considered that a dismissal was unfair or not unfair. That is to say, whether the dismissal was or was not harsh, unreasonable or unjust. [65] In the present case, Cambridge C found that the dismissal of the applicant was not harsh, unreasonable or unjust and we consider an examination of the Commissioner's reasons support his conclusion. It would have been preferable, however, if the Commissioner had spelt out in clear terms why, under each limb of the tripartite test, the dismissal was not an "unfair dismissal". 53Contrary to the appellant's contention, the Full Bench in Cuno did not find that the decision-maker's failure to analyse separately each limb of the tripartite test constituted an appealable error. What the Full Bench did say was that "it would have been preferable" if the decision-maker had adopted an approach consistent with a separate analysis of each limb of the test. 54Commissioner Bishop found that each limb of the tripartite test had been made out. She gave reasons for her findings at [173] to [176] of the decision. She also set out the factors she took into account as the basis for the finding (at Decision [176]), which she said separately supported each limb of the test. This is apparent from the opening words at [176] of the decision in which she says that the matters she has taken into account "are applicable to each of those three terms" (a reference to the three limbs of the test). I perceive no error in this approach. It has long been recognised that each limb of the tripartite test may involve overlapping considerations, which it clearly did on the facts presented on the application before Commissioner Bishop. See, for example, Byrne at 465 per McHugh and Gummow JJ; see also Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20 at 28 ("the words 'harsh, unreasonable or unjust' are ordinary technical words intended to apply to an infinite variety of situations where employment is terminated"). 55As to the second error sought to be identified by the appellant, I agree with the respondent's submissions that it is not correct to say that a dismissal may only be found to be harsh in circumstances, "where the dismissal was otherwise justified": see, for example, the discussion in Kaplan of the concept of "harshness" at [25]-[30]. Commissioner Bishop found that the dismissal, "was too harsh a penalty for the out-of-hours conduct" (Decision [174]). She identified a number of matters, about which there was no contest, which supported the finding. These included the factors identified at [176] of the Decision, such as the loss of Mr Silling's long-term career, his inability to find comparable, alternative employment in a regional area, and, the past and ongoing financial losses caused by his dismissal. These factors were all relevant to an assessment of whether a dismissal was "harsh". The Commissioner weighed up those factors, and other mitigating factors, against the impugned conduct. In doing so she adopted the conventional approach which did not involve error.

Whether the dismissal was harsh 56In reliance on the third ground of appeal, the appellant returned to its submissions regarding the failure of the Commissioner to deal separately with each limb of the tripartite test. I have dealt already with this particular matter and it is unnecessary to repeat my findings. The appellant further contended that the Commissioner's conclusions on harshness affected her erroneous finding of fact that Mr Silling "self-reported" each assault to the police. According to the appellant, the finding was contrary to an agreed fact in the criminal proceedings in respect of the third offence. The finding was also said to be inconsistent with Mr Silling's evidence given in relation to the second offence which occurred in 2008. 57The appellant's contention on the "self-reporting" issue was based on a paragraph in the Agreed Facts document presented before the Local Court at the time Mr Silling pleaded guilty to the third offence. The paragraph contains a statement that, "At 9.15pm, the accused attended the Goulburn Police Station at the request of the Police". Other evidence which was before Commissioner Bishop may be found in a statement made by Mr Silling where he says he, "voluntarily attended Goulburn Police Station ... made full admissions and co-operated fully with the police investigation". This evidence was unchallenged and accordingly could have formed a proper basis for the Commissioner's finding. The appellant's second contention arises from Mr Silling's cross-examination in the proceedings below where he agreed with the cross-examiner that he had decided to attend the police station only after his daughter informed him that she was going to ring the police. Again, there was other, unchallenged, evidence before Commissioner Bishop which supported her finding that Mr Silling "self-reported" to police in relation to the 2008 offence. This evidence emerges from Mr Silling's police interview conducted shortly after he attended the police station. In that interview, he agreed with questions put to him by the interviewing officer that, "... shortly after 5.00pm this afternoon you attended Goulburn Police Station of your own free accord"; and, that he informed the staff he, "... had been involved in an incident where (he) had assaulted (his) daughter". Based on this evidence, it was open to Commissioner Bishop to make the finding that Mr Silling "self-reported" the 2008 incident. 58The appellant also complained that had Commissioner Bishop addressed the correct question, namely, whether the dismissal was, "disproportionate to the gravity of the conduct", she would have dealt with the circumstances of the three assaults in precise detail, instead of making general statements about the seriousness of the conduct. I fail to see any merit in this particular complaint. First, there was no dispute about the factual underpinnings of each offence. Secondly, there can be no doubt that she took them into account in her reasons, denouncing the conduct on one occasion as "reprehensible and abhorrent". Setting out the precise details of each offence could not have affected the outcome. 59A further complaint raised by the appellant under this third ground of appeal was that the Commissioner failed to take account of the absence of evidence from the other victim of the assaults, namely, the daughter. It is unclear, however, whether the appellant is suggesting that this failure constituted an error, or more particularly, whether it was postulating a connection between the matter and Commissioner Bishop's conclusions on harshness, which was said to constitute an error. According to the respondent, no submissions on the failure of Mr Silling's daughter to give evidence were made in the proceedings below. Given this state of affairs, I find myself unable to give the matter further consideration. 60The appellant also contended that Commissioner Bishop did not take account of the domestic violence, apprehended violence orders which were issued against Mr Silling under the Crimes (Domestic and Personal Violence) Act 2007. A connection was sought to be made between acts of domestic violence and the public standing of the perpetrator. The difficulty I have with this contention is that the letter of dismissal made no reference to the orders, and, as the respondent pointed out, there was no suggestion of non-compliance with the orders, and they are now spent. Given these matters, I fail to see how the fact that apprehended violence orders were taken out against Mr Silling in connection with the conduct constituting the offences could have, or should have, affected Commissioner Bishop's ultimate findings. 61It was also contended by the appellant that Commissioner Bishop erred in placing reliance on the testimonials provided by Mr Silling's work colleagues in the Local Court proceedings. According to the appellant, none of his work colleagues gave evidence in the proceedings below, and none of the testimonials contained any comments on Mr Silling's suitability for reinstatement. The appellant also relied on the fact that, with one exception (a Mr Coleman), the referees for each of the 2008 and 2011 sentence proceedings were different and there was nothing to indicate that any of the referees (except for Mr Coleman) knew that there was more than one offence committed. In addition, the testimonials contained no indication that the referees knew of the existence of the apprehended violence orders or of the fact that one of the assaults took place in front of a child. 62In my view, there is little substance in the appellant's contentions on this issue. According to the respondent, in written submissions, the testimonials were admitted into evidence without objection on the part of the appellant, and, notwithstanding an extensive submission made on Mr Silling's behalf about the weight to be attributed to the testimonials, the appellant made no submission in response, saying nothing about the testimonials at all. 63The appellant also contended that Commissioner Bishop's decision in relation to "harshness" involved an erroneous finding that there, "were also procedural fairness issues raised by the total absence of any reasons provided by CSNSW in the 10 June 2011 letter of dismissal (other than the mere fact of the three convictions and the "employment matter)": Decision at [175]. The finding, it was said, is fundamentally at odds with the High Court in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. According to the appellant, it was held in that case that there is no such obligation to give reasons. 64The appellant did not direct the Full Bench to any particular passage in Osmond which might have provided support for the contention. I note that Osmond concerned an initial appeal by Mr Osmond to the Public Service Board against his unsuccessful application for appointment by way of promotion to a vacant position. The Board dismissed his appeal and refused a request by Mr Osmond to provide reasons for its decision. Mr Osmond applied to the Supreme Court for a declaration of right, which was dismissed. He then appealed to the Court of Appeal which held that the Board was required to give reasons and ordered it to do so. An appeal by the Board to the High Court against the Court of Appeal's order, was allowed, principally upon the basis expounded by Gibb CJ at 662 to 663 where his Honour said (formal references omitted): With the greatest respect to the learned judges in the majority in the Court of Appeal, the conclusion which they have reached is opposed to overwhelming authority. There is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests, or defeat the legitimate or reasonable expectations, of other persons. That this is so has been recognized in the House of Lords ... and the Privy Council ... in those cases, the proposition that the common law does not require reasons to be given for administrative decisions seems to have been regarded as so clear as hardly to warrant discussion. More recently, in considered judgments, the Court of Appeal in England has held that neither the common law nor the rules of natural justice require reasons to be given for decisions of that kind. ... It has similarly been held that domestic tribunals are not bound to give reasons for their decisions. 65Later in the judgment, Gibbs CJ added the following clarification when his Honour said: ... the fact that no reasons are given for a decision does not mean that it cannot be questioned; indeed, if the decision-maker does not give any reason for his decision, the court may be able to infer that he had no good reason. That, again, is quite a different question from that which now concerns us. 66The respondent contended that Commissioner Bishop's finding proceeded upon the basis that the absence of reasons meant that there was no basis to conclude that anything in the oral and written submissions of Mr Silling to the primary decision-maker (Deputy Commissioner McLean) had been taken into account, which meant in turn that there was a denial of procedural fairness. 67I note that the present appeal, in contrast to the matter before the High Court, concerns a much more serious issue than a failure to secure a promotion. The action taken by the appellant to dismiss Mr Silling was the most severe form of disciplinary action available under s 48 of the PSEM Act. It would ordinarily, if not always, be incumbent upon an employer to give reasons for dismissing an employee in order to avoid a finding that the dismissal was unfair under s 84 of the Act. Section 88 of the Act refers to the giving of reasons for the dismissal effected by the decision-maker as an appropriate matter for the Commission to take into account when determining an application for unfair dismissal under the Act. By way of illustration, ss 88(a) and (b) provide: In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and 68Finally on this issue, I agree with the respondent's submission that, in any event, Commissioner Bishop's finding (at [175]), concerning procedural fairness was peripheral to her central conclusion that there was substantive unfairness.

Reinstatement 69In written submissions the appellant also contended that Commissioner Bishop erred by ordering reinstatement of the respondent. This was not a ground pleaded in the application for leave to appeal and appeal. Nor was it developed by the appellant in oral submissions. Moreover, the appellant did not apply to amend the grounds of appeal. The respondent's contention was that it was impermissible for the appellant to rely on the issue of reinstatement as a ground of appeal when it was not pleaded in the appeal notice, but that, in any event, the appellant's submissions on the issue should be rejected. 70Despite the appellant's failure to formally plead the issue of reinstatement as a ground of appeal, I propose to deal briefly with it. 71After announcing her decision to reinstate Mr Silling and after referring to a number of relevant authorities, Commissioner Bishop directed her attention to the requirement to have regard to the public interest under s 146(2) of the Act. The section was referred to in the context of a decision to order reinstatement in Director of Public Employment by his Agent The Director General of the Department of Juvenile Justice v Public Service Association and Professional Officers' Association Amalgamated Union of NSW (on behalf of Elvin Brown) [2008] NSWIRComm 221 at [87] where the Full Bench said: In the context of this statutory scheme, in the exercise of its functions, including a decision to order reinstatement or re-employment, the Commission must also have regard to the public interest (See s 146(2)). That means that a consideration of the consequences of the particular conduct for the employer, as well as the employee, when ordering that an employment relationship be restored, cannot be overlooked, having in mind the particular employment in question. 72Commissioner Bishop's approach to the requirement to have regard to the public interest in her assessment of whether to reinstate the appellant is set out at [181] and [182] of the decision where she said: [181] It is difficult to have regard to the public interest in this matter as there has just been no evidence presented to the Commission, as is usually the case where reinstatement is sought, as to any consequences for the employer, other employees etc., or indeed just why reinstatement is impracticable. [182] Similarly when having regard to Perkins, again there is no actual evidence from anyone at CSNSW, particularly those at the Goulburn Correctional Comples who would be working with Mr Silling or supervising him or exercising authority over him as to any issue going to trust and confidence, or indeed any concern, as to his ability to perform his duties as a 'law enforcement officer'. There is no actual evidence from Deputy Commissioner Mclean either written or oral, mere assertions made on his behalf that there is a loss of trust or confidence such as to preclude Mr Silling's reinstatement. 73It was the appellant's contention that in assessing the public interest (in the context of whether or not to order reinstatement) Commissioner Bishop failed to have regard to the following matters: The evidence of the nature of the offences. The nature of the respondent's role in the criminal justice system of the state. The respondent's admissions as to the effect of his conduct on the reputation of the employer. The statutory scheme in the Act as being matters that were relevant to determining the public interest in reinstatement of the respondent. The warning from the then Senior Assistant Commissioner (now Commissioner) that violence against women was abhorrent and that officers were expected to act lawfully whether on duty or not. 74All of the matters identified above involve, effectively, a repetition of matters relied upon by the appellant on the question of unfairness. As the respondent pointed out, what is left unexplained is how the matters are to be given weight once it is accepted that Mr Silling's dismissal was unfair. 75It was also the appellant's contention that there was a clear public interest in avoiding any curial approval of Mr Silling's conduct. This, it was said, is an important reason for refusing relief, even if "some harshness" is established in the dismissal. 76Contrary to the contention, I fail to discern any basis in Commissioner Bishop's decision which could indicate condonation of the impugned conduct. The Commissioner made it very clear during the course of her reasons that she viewed Mr Silling's conduct as, "both reprehensible and abhorrent".

Orders 77For the reasons given I propose the following order: (1) Leave to appeal is refused.

78I agree with the decision and proposed Order of Backman J. 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: 31 October 2012

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