Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (obo Saraceno) v Commissioner of Police

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046; 69 AILR ¶102-860 Fire Brigade Employees' Union of New South Wales v Commissioner of Fire and Rescue New South Wales (PAD Program) [2021] NSWIRComm 1041 Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance [2017] NSWIRComm 1036 Jaggi v Health Secretary in respect of the Western Sydney Local Health District [2022] NSWIRComm 1032 J-Corp P/L v Australian Builders Labourers Federated Union of Workers Western Australian Branch [1992] FCA 793; 38 FCR 452 Jones v Dunkel [1959] HCA 9; 101 CLR 298 Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064 Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064 Leahey v CSG Business Solutions (Aus) Pty Ltd [2017] FCA 1098 Paula Lee and Ausgrid (No 6) [2013] NSWIRComm 62; 237 IR 63 Police Association of New South Wales (obo Tomlinson) v Commissioner of Police [2023] NSWIRComm 1053 Police Association of New South Wales v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1095 Public Service Association of New South Wales v Teterycz [1998] NSWIRComm 415 Qantas Airways Ltd v Transport Workers' Union of Australia [2022] FCAFC 71; 292 FCR 34 Robertson v Singtel Optus Pty Ltd [2023] FCA 1392 Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431; 320 IR 198 Secretary of the Ministry of Health v New South Wales Nurses and Midwives' Association [2022] NSWSC 1178; 320 IR 249 Transport Workers' Union of Australia v Qantas Airways Limited [2021] FCA 873; 308 IR 244 Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 Unions NSW v Carter Holt Harvey Wood Products Australian Pty Ltd (2006) 149 IR 361; [2006] NSWIRComm 2 Williams v Australian Telecommunications Commission (1988) 52 SASR 215 Wong v National Australia Bank Limited [2022] FCAFC 155; 318 IR 148 Texts Cited: P Young and H Selby, Rose's Pleadings Without Tears in Australia, (3rd ed, 1997, The Federation Press) S Dunstone, A Practical Guide to Drafting Pleadings (2nd ed, 1996, LBC Information Services) Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Notifier/Applicant) Commissioner of Police (Respondent) Representation: Counsel: P Lowson with I Chatterjee (Notifier/Applicant) M Watts with E Baxter (Respondent) Solicitors: Kingston Reid (Respondent) Other: A McRoberts (Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales) File Number(s): 2023/159375 2023/159381 Publication restriction: Nil

DECISION DECISION Introduction Statutory Framework The PSA's Case and the Relief Sought The Dispute Proceeding The Victimisation Proceeding The Issues for Determination The Evidence The Facts Background Referral by SMU to PSC First Allegation Letter Second Allegation Letter Substantial and operative cause of Chief Inspector Newton taking detrimental action Chief Inspector Newton's evidence as to his review and assessment of the emails The Involvement of Superintendent McDonald Other asserted reasons Chief Inspector Newton's Evidence should not be accepted Referral to Superintendent Driver Substantial and operative cause of Superintendent Driver taking detrimental action Resolution of the Issues for Determination Dispute Proceeding Does the Commission have the power to grant the relief sought? Are the factual bases upon which it is contended relief is warranted, established? Does the dispute have a collective element and if not, should the Commission decline to grant relief for this reason? Should the Commission decline to grant relief because the PSA failed to follow the grievance and dispute settling procedures set out in Clause 9 of the Award? Victimisation Proceeding: Conclusion and Orders

Introduction

1. Before the Commission are two proceedings, both commenced by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA), seeking redress in respect of what it regards as improper conduct by the Respondent, the Commissioner of Police, in relation to one its members, Mr Tony Saraceno. According to the PSA the Respondent has victimised Mr Saraceno, contrary to ss 210(1)(a) and 210(1)(g) of the Industrial Relations Act 1996 (NSW) (IR Act), because he is a member or an official of an industrial organisation of employees, namely the PSA, and is participating, or was proposing to participate, in proceedings relating to an industrial matter. The Respondent on the other hand, asserts that Mr Saraceno has engaged in misconduct, through the disclosure of confidential information without authority and contrary to reg 76 of the Police Regulation 2015 (NSW) and according, she proposes to dismiss him if he does not otherwise tender his resignation.
2. The 'proceedings relating to an industrial matter' referred to in the preceding paragraph are proceedings which were commenced in this Commission by the PSA on 21 July 2022 for a new award setting terms and conditions of employment for New South Wales Police Force 'special constables' (Award Proceeding).1 The proposed new award is to replace the Crown Employees (NSW Police Force Special Constables) (Security) Award 2018 (Security Award).
3. Special constables are not 'police officers' within the meaning of the Police Act 1990 (NSW) but rather, are 'non-executive administrative employees' whose role it is to maintain the safety and security of key New South Wales Police Force buildings and other important Government buildings such as Parliament House. Special constables are nevertheless members of the New South Wales Police Force (NSWPF): Police Act 1990 (NSW), ss 5, 81G.
4. The Award Proceeding, which is currently before the Full Bench, includes claims for an increase in salaries paid to special constables, with the PSA asserting, inter alia, that the work performed by special constables is undervalued.
5. Tony Saraceno is a special constable. While initially not admitted, the Respondent ultimately conceded that Mr Saraceno was and is a member and delegate of the PSA; and it was intended that he would be a witness in the Award Proceeding. [1]

Statutory Framework

1. To aid comprehension of the two Proceedings and the discussion that follows, it is convenient to set out the relevant statutory provisions and to provide a brief commentary in respect of some of the relevant principles applicable to the interpretation and application of those provisions, as gleaned from the authorities.
2. In respect of the Dispute Proceedings the following provisions are relevant: Part 1 Conciliation and arbitration of industrial disputes 130 Notification of industrial dispute to Commission (1) Any of the following may notify the Commission of an industrial dispute for the purpose of resolving the dispute - (a) an industrial organisation of employees or employers, (b) an employer who is or is likely to be affected by the dispute, (c) a person who is or is likely to be the subject of a secondary boycott in connection with the dispute, (d) a State peak council. (2) The Commission may act on its own initiative to resolve an industrial dispute. 131 Mandatory dispute resolution procedures to be followed first The Commission may refuse to deal with an industrial dispute until it is satisfied that any relevant dispute resolution procedures in an industrial instrument have been followed as far as is reasonably practicable in the circumstances. Note - Sections 14 and 39 require the inclusion of dispute resolution procedures in awards and enterprise agreements. … 136 Arbitration of dispute (1) The Commission may, in arbitration proceedings, do any one or more of the following - (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). (2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute. Note - Examples of other kinds of orders the Commission may make are orders for secret ballots (section 172), a demarcation order under Part 6 of Chapter 5 and stand-down orders (section 126). Part 2 Dispute orders 137 Kinds of dispute orders (1) The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings - (a) The Commission may order a person to cease or refrain from taking industrial action. (b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute. (c) The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so. (d) The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute. (2) If employees are taking industrial action in connection with the industrial dispute, the Commission may order the employees to cease taking that industrial action before it makes any other kind of dispute order against the employer. (3) A dispute order may not provide for the payment of compensation, lost remuneration or any other amount. Note - See also claim for remedy under Part 6 of Chapter 2 (Unfair dismissals). 138 Making of dispute orders (1) A dispute order may be made only against - (a) a party or likely party to the industrial dispute, or (b) a member, officer or employee of an industrial organisation that is such a party or likely party, or (c) a person engaged, or likely to be engaged, in a secondary boycott in connection with the industrial dispute. (2) A dispute order - (a) must clearly identify the persons against whom the order is made and who are bound by the order, and (b) must state a time within which the order is to be complied with or state a period during which it remains in force, and (c) may be varied or revoked by the Commission at any time. (3) If an employee is reinstated or re-employed under this Part, the Commission may order that the period of employment of the employee with the employer is taken not to have been broken by the dismissal.

The Dispute Proceeding

1. Before the matter came on for hearing the PSA informally amended the relief it sought in the Dispute Proceeding. It advised the Respondent of the amended proposed relief by letter dated 26 May 2023, and the Commission in opening oral submissions. [9] Importantly, any claim in the Dispute Proceeding for a stay or a dismissal of the 'disciplinary proceeding' against Mr Saraceno was abandoned. The revised relief sought by the PSA in the Dispute Proceeding is: 1. a recommendation that: 1. the Respondent cease accessing emails from PSA delegates to PSA solicitors and administrative support staff where those emails are marked "Sensitive-Legal" or are otherwise subject to legal professional privilege; and 2. the parties consult to devise a document that covers procedures for PSA delegates using NSW Police Force email to communicate with the PSA regarding legal proceedings and workplace disputes, and 1. a determination, pursuant to s 175 of the IR Act, that reg 76 of the Police Regulation 2015 does not apply to PSA delegates who are exercising their rights as delegates to use NSW Police Force email to communicate with the PSA and/or its solicitors regarding union matters or legal proceedings.
2. The basis upon which the PSA contended the Commission should grant the relief sought was set out in the Notice of an Industrial Dispute (Notice) as follows: "1. This dispute relates to matters set out in an application under section 210 of the Industrial Relations Act 1996 (NSW) (IR Act). A copy of this application is attached hereto and marked A1 and involves the Notifier's member and long-term delegate Mr Tony Saraceno. The matters set out in the annexure A1 are relied upon in this dispute. In addition, we rely on the following matters. 2. The Respondent has accessed emails sent by Mr Saraceno to the Notifier's legal team that are the subject of legal professional privilege by the Notifier. 3. The Respondent has accessed these communications in circumstances where the Respondent is defending an arbitrated award proceeding (213646 of 2022 - Crown Employees (NSW Police Force Special Constables) (Security) Award 2022). 4. The Respondent has refused to give the Notifier an undertaking to cease accessing legally privileged communication and documents as set out in the section 201 application at A1. 5. In addition, the victimisation of Mr Saraceno has interfered with the Notifier's ability to: a. Finalise the evidence in reply from Mr Saraceno who is currently facing threat of dismissal; and b. Obtain evidence from other members have (sic) formed the view that their employment might be threatened and /or adversely impacted if they participate in the proceedings as a consequence of the matters set out therein."

The Victimisation Proceeding

1. As I will shortly explain in more detail, when the PSA commenced the Victimisation Proceeding it claimed that by alleging that Mr Saraceno had engaged in misconduct; by directing him to work at the Armory; by finding he had engaged in misconduct and by threating to terminate his employment, the Respondent had victimised Mr Saraceno contrary to s 210(1)(a) and s 210(1)(g) of the IR Act.
2. However, an issue arose in closing submissions in the Victimisation Proceeding, as to the scope of the PSA's case. As the Respondent submitted [10] , and I accept, the Application for Relief from Victimisation filed on 18 May 2023 (Application) did not adequately particularise the acts said to constitute victimisation. A schedule attached to the Application which was said to provide the particulars of victimisation was constructed more as submission than a pleading.
3. The Respondent submitted that due to the 'reverse onus' provided for in s 210(2) of the IR Act and in reliance on Kinninmont, the PSA should not be permitted to depart from the allegations of victimisation set out in the original Application.
4. There were five paragraphs in the schedule attached to the Application filed in the Victimisation Proceeding which can sensibly be regarded as articulating the acts said to constitute victimisation, despite this not being expressly stated, namely: "8. By letters dates 23 February 2023 and 10 March 2023 the Respondent made allegations of misconduct against Mr Saraceno which directly related to: a. the provision of documents alleged to be confidential to the Applicant's lawyers for the purposes of preparing evidence and summonsing documents in the Award Proceedings; and b. the provision of information and documents to the Applicant in Mr Saraceno's role as a union delegate. 9.The Respondent directed Mr Saraceno to cease working in his substantive role at the Sydney Police Centre and directed him to work at the Armory. It is well-known within the New South Wales Police Force that special constables (and police officers) are re-deployed to the Armory when they are the subject of disciplinary allegations. … 13. By letter dated 15 May 2023 but sent via email to Mr Saraceno on 18 May 2023 the Respondent made findings of misconduct against Mr Saraceno and proposing the action of termination - after giving him an opportunity to resign. Mr Saraceno was invited to show cause within 14 days why he should not be terminated. … .. 14. Mr Saraceno's conduct does not constitute misconduct. His conduct has been consistent with his role: a. as a union delegate; and/or b. as an instructor and witness in the Award Proceedings. 15. The Respondent has accessed communications and documents between Mr Saraceno and the Applicant's lawyers which were sent in confidential circumstances for the purposes of legal proceedings and are subject to legal professional privilege."

The Issues for Determination

1. As recorded above, certain matters are not in dispute. In particular: 1. in the Dispute Proceeding the Respondent accepts that: 1. the dispute pertains to an "industrial matter", particularly where s 6(2)(j) of the IR Act expressly provides that surveillance of employees in the workplace is an example of an industrial matter; [15] and 2. Ms Alison McRobert is a solicitor employed by the PSA. [16] 1. In the Victimisation Proceeding the Respondent accepts that: 1. Mr Saraceno was and is a member and delegate of an industrial organisation of employees, namely the PSA and, at the time of the relevant action, he proposed to participate in proceedings relating to an industrial matter, namely the Award proceeding; [17] 2. being investigated for alleged misconduct and being threatened with termination of employment as a result of having been found to have engaged in misconduct, amount to a 'detriment', within the meaning of s 210(2) of the IR Act; [18] and 3. Mr Saraceno was investigated for misconduct and was and is being threatened with termination of employment as a result of findings that he had engaged in misconduct. [19]
2. In light of the above; the preceding discussion as to the statutory framework; the PSA's case and the relief sought; and the parties' submissions, the issues for determination may be summarised as follows: 1. In the Dispute Proceeding: 1. Does the Commission have the power to grant the relief sought? 2. Are the factual bases upon which it is contended relief is warranted, established? In particular, is it the case: 1. that the Respondent is accessing emails from PSA delegates to PSA solicitors and administrative support staff where those emails are marked "Sensitive - Legal" or are otherwise subject to legal professional privilege (Notice at [3] and first proposed Recommendation); 2. if so, has this interfered with the PSA's ability to obtain evidence in reply from Mr Saraceno in relation to the Award Proceeding and from other members of the PSA who have 'formed the view that their employment might be threatened and/or adversely impacted' if they participate in the Award Proceeding (Notice at [5]); 1. Does the dispute have a collective element and if not, should the Commission decline to grant relief for this reason? 2. Should the Commission decline to grant relief because the PSA failed to follow the grievance and dispute settling procedures set out in Clause 9 of the Award? 3. Assuming no other impediment, should the Commission grant the relief sought? 1. In the Victimisation Proceeding: 1. Has the Respondent rebutted the presumption that Mr Saraceno was investigated by the PSC after 27 October 2022; alleged to have engaged in misconduct; found to have engaged in misconduct; and threatened with termination, because he was a member and delegate of the PSA and/or he proposed to participate in the Award Proceeding? 2. If not, should the relief sought be granted?

The Evidence

1. Before setting out my findings in respect of the facts giving rise to the Proceedings, I will explain the nature of the evidence adduced in the Proceedings.
2. The PSA did not call any witnesses, including the person at the heart of the dispute, Mr Saraceno, although he attended each day of the hearing. Instead, it relied on documents, in particular but not limited to, copies of the emails and attachments that Mr Saraceno had sent to various persons at the PSA, and oral testimony obtained in cross examination of the Respondent's witnesses.
3. The Respondent called two witnesses: Chief Inspector Newton and Superintendent Driver. Chief Inspector Newton is the Manager, Administrative Officer Conduct Unit, PSC. At the time of preparing his affidavit on 7 June 2023 [20] , Chief Inspector Newton had been in that role for three years. The role of the Manager, Administrative Officer Conduct Unit includes overseeing any investigation process undertaken, including the process set out under r 44 of the GSE (NSWPF) Rules.
4. Chief Inspector Newton reports to Superintendent Driver, who, since 6 December 2021 (except for a period of approximately four months when he was Acting Assistant Commissioner of the PSC) has performed the role of Commander of Misconduct & Management Support with the PSC. In his position Superintendent Driver is responsible for managing the complaints and misconduct process that is followed in respect of members of the NSWPF. It is not in dispute that he holds the delegated authority of the Respondent under s 69(4) of the GSE Act and r 46(4) of the (GSE (NSWPF) Rules, to take disciplinary action, including termination of employment, against administrative employees who have engaged in misconduct.
5. The Respondent also tendered certain documents as annexures to Superintendent Driver's affidavit dated 7 June 2023 [21] and separately, a copy of the PSA's 'Delegate's Handbook'.
6. Notably, the Respondent did not call Superintendent McDonald or Sergeant Alisa Flint, who assisted in the disciplinary investigation, to give evidence. The PSA submitted that, consistent with the principle in Jones v Dunkel [1959] HCA 9; 101 CLR 298, the Commission should infer that any evidence given by Superintendent McDonald would not have assisted the Respondent in discharging her onus. However, as Beech-Jones JA (as his Honour then was) explained in Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 (Brereton and Mitchelmore JJA agreeing) at [47] - [48]: 47. A Jones v Dunkel inference has relatively weak evidentiary value. It does not enable the trier of fact to infer that the absent evidence would have been positively adverse to the party (Hellicar at [168] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ and at [232] per Heydon J), and it does not enable a court to discount or diminish the value of the evidence that a party adduced (Hellicar at [164] to [170] and [233]). 48. In any event, the mode of reasoning suggested by Jones v Dunkel is directed to fact finding. There is no obligation on a jury or a judge to draw any such inference (Manly Council v Byrne and Anor [2004] NSWCA 123 at [52]). It follows that a failure to draw such an inference is not erroneous in law and does not raise any question or point of law. [22]

Background

1. The Application for Relief from Victimisation stated, at paragraph [2], that Mr Saraceno is a member and union delegate of the PSA, that he has been employed by the Respondent as a special constable since 2009 and that at the time of the filing of the Application, was employed as a Field Supervisor.
2. Initially the Respondent did not admit that Mr Saraceno was a member and delegate of the PSA, but she ultimately and properly did so in closing oral submissions, after I drew counsel for the Respondent's attention to paragraphs 3.2(e) and (g) of the Model Litigant Policy for Civil Litigation. No evidence was led by the PSA as to how long or in what capacity Mr Saraceno had been employed by the Respondent, however Chief Inspector Newton confirmed in evidence that Mr Saraceno was a special constable within the SMU.
3. As I have already recorded, the PSA commenced the Award Proceeding on 21 July 2022. [23] On 14 October 2022 the PSA issued a Summons to Produce to the Respondent. [24] Paragraph 15 of the Schedule to the Summons sought production of: "A copy of any document recording a request for the re-alignment of the Security Management Unit from Communications and Security Command to Counter Terrorism and Special Tactics made in 2022 including any document with the document/file number D/2022/794046."
4. The Respondent tendered in evidence the first two pages of the document bearing the file number D/2022/794046 (Realignment Document) and an email chain between Ms McRobert and Mr Saraceno which referred to the document. [25] The PSA also tendered the email chain in evidence. [26] The email chain commenced with an email from Ms McRobert dated 13 October 2022 to Mr Saraceno, copied to Sandra Lockey of the PSA, with the subject line: "2022/00213646 - Crown Employees (NSW Police Force Special Constables) (Security) Award [SEC=UNOFFICAL]". It read as: "Hi Tony In our interview you referred to a Realignment document that mentioned the number of special constable positions (168) and how may vacancies (27) you referred to the realignment document is this the Communications and Security Management Unit Functional Review as this was from September 2018 - or is there a more updated realignment document? If so please sent it through, we are filing a summons for documents from NSW Police and will send you a copy once filed. Thanks Kind regards, Alison McRobert" (Errors in original)

Referral by SMU to PSC

1. On 27 October 2022 Chief Inspector Newton received certain information from Superintendent Paul McDonald, the Commander of the SMU, regarding Mr Saraceno. As I have already observed, the referral of the matter from the SMU to the PSC for a disciplinary investigation was referred to by the parties' representatives from time to time as a 'complaint'. Chief Inspector Newton referred to the 'complaint' as a 'referral'. In any event, to the extent the complaint or referral was contained in a document, that document was not tendered in evidence by either party and as already recorded, Superintendent McDonald was not called.
2. The following is Chief Inspector Newton's summary of a "chronology of concerns in relation to the release of confidential police information" which Superintendent McDonald had apparently set out in the referral. In circumstances where Superintendent McDonald was not called as a witness, the PSA objected to the following hearsay evidence being admitted as proof of the facts or opinions asserted. After hearing argument, I determined to admit the evidence, but to limit the use to be made of the evidence as evidence only of information given to Chief Inspector Newton and not as evidence of the truth of any fact asserted. [29] "(a) on 18 October 2023 (sic), the SMU became aware of a summons to produce served on the Commissioner, NSW Police Force, to produce documents in relation to proceedings in the NSW Industrial Relations Commission brought by the Public Service Association (PSA), with the summons provided to the SMU with a view to them producing relevant documents. (b) Within the schedule section of the summons, numerous documents and information regarding the operation of the SMU were requested to be produced. One of the requested documents stood out to the SMU as peculiar due to the fact that the words contained within that specific request were verbatim to the words used in part of a report that had been authored by Communications & Security Command (CSC) on 12 August 2022, in relation to the realignment of the SMU from the CSC to the Counter Terrorism & Special Tactics Command (CTST). This particular report had been marked as 'Sensitive' and was, at that time, a report still being progressed through the chain of Command to the Commissioner of Police's Executive Team for approval (Report). The request also made mention of the Report's RMS number (D/2022/794046). The RMS system is the NSW Police Force's internal document management system, that allocates a unique number to every document, which is used for tracking purposes. This document number is attached to the top of page 1 of that Report. (c) Superintendent McDonald informed PSC he had possession of a printed copy of this Report. This copy was kept in the SMU Commander's office. While Superintendent McDonald's office was usually locked, it was unlocked in the approximately two weeks commencing from 12 September 2022, as the SMU Command Office was relocating within the building. (d) I understand from the report that SMU suspected, from the above, that a copy of the Report had somehow come into the possession of the PSA and enquiries were undertaken by SMU management to identify how this may have occurred. (e) A request was made of PSC by Superintendent McDonald to conduct an email audit of any SMU staff member, with search parameters designed to identify whether any person may have sent the Report by email to another party, whether internally or externally. PSC conducted this audit. The result of the audit revealed an email exchange dated 14 October 2022 between Mr Saraceno and a person who appears to be employed by the PSA, Ms Alison McRobert. (f) In view of this information, and as a risk mitigation strategy, SMU requested PSC conduct an audit of any additional emails that Mr Saraceno may have sent from his work email address to the PSA. This audit (which I understand was conducted by PSC, Strategic Coordination Unit) revealed dozens of emails between Mr Saraceno, PSA employees and other SMU PSA delegates, dating back to 2012. It was concluded that the majority of the emails were of no concern. However, there were others which PSC determined were necessary to be investigated, including emails marked as "Sensitive" that had been forwarded by Mr Saraceno to the PSA."

First Allegation Letter

1. On 23 February 2023 Chief Inspector Newton sent a letter to Mr Saraceno (23 February Letter) in the following terms (with email addresses redacted): "Notification of Misconduct Matter Details of allegation, Action that may be taken and Opportunity to make a statement Dear Mr Saraceno, The Administrative Officer Conduct Unit is managing an administrative employee misconduct matter as an allegation has been made that you have engaged in misconduct. It has been decided to proceed with this misconduct matter, reference AOM2022-0138 and you are now advised of the details of the allegations as follows: Allegation 1 It is alleged that you have, without authority, entered the SMU Commander's office and accessed a report - D/2022/794046 - and seemingly read the report and photographed the first two pages of that report. Allegation details: In September 2022 you, without permission, entered the unoccupied SMU Commander's Office. At that time a sensitive report (D/2022/794046 - relating to the re-alignment of the SMU to the CT&ST Command) was on the commander's desk and you accessed the report, taking a full photograph of page 1 and a partial photograph of page 2 of that report. There was no operational need for you to enter the commander's officer, nor was there any need for you to access or photograph the report on the commander's desk. At 8.22am on 14 October 2022, you sent two photographs of report D/2022/794046 from your private email account; XXXXX@gmail.com to your police email address; XXXXX@police.nsw.gov.au. At 8.30am on 14 October 2022, you, from your work email disseminated the document to a third party with the below commentary: "I simply came across a document left on our Commanders old office and took photo's as per the attached. This document was only recently sent up the chain of Command ( 2022 ?) and you will also see the trim number for this document D120221794046, in the event you need to ask NSW police for a copy" At 8.35am, you received a response asking if you had a full copy of the document to which you replied, at 8.53am; "Sorry, I don't have the full document and should have photographed the lot when I had the chance·". The uninvited and unauthorised access to the commander's office is unprofessional and is a breach of the NSW Police Force Code of Conduct and Ethics - points 1,2,3,5 6,7,8 and 9 and a breach of the NSW Police Force Statement of Values, points a, b, g and h. Allegation 2 It is alleged that you have without authority, disclosed confidential NSW Police Force information. Allegation details: An audit of your work email address from August 2017 to October 2022 has identified twenty-six (26) occasions in which you have disseminated confidential NSW Police Force information without prior authorisation, in the form of internal email communications from members of the Senior Management Team along with thirty-eight (38) individual NSWPF documents. The confidential NSW Police Force information disclosed without authority is outlined in Annexure A of the notification of allegation details to the employee. The repeated disclosure of NSWPF information between 2017 to 2022 was unauthorised and contrary to confidentiality requirements set out in cl.76 Police Regulations 2015. You are invited to make a statement in response to the allegations. You do not have to make a statement, but if you do your statement is to be provided within 14 days of your receipt of this correspondence. Your statement can be emailed to #XXX or external email to . Your statement, if made, will be considered in the determination of this matter. You will be advised of the decision to either proceed or not proceed with this misconduct matter. If a finding of misconduct by you is made the following action may be taken: • terminate your employment (without giving you an opportunity to resign) • terminate your employment (after giving you the opportunity to resign) per s.69(4)(a) - (b) of the Government Sector Employment Act 2013. You are required to maintain the integrity of this misconduct matter and you are prohibited from discussing this matter with any person you know or believe may be a witness or otherwise involved. You are, however, permitted to discuss this matter, on a confidential basis, with a suitable support person, health care practitioner, legal practitioner, or union representative. You may arrange a suitable time with your commander to view copies of all emails referred to in Annexure A of the notification of allegation details to the employee. Material provided to you during this misconduct matter is strictly confidential and not to be disseminated, except for the purpose of obtaining legal advice. Should you wish to discuss the procedural aspect of this matter or seek additional information please contact Sgt Flint (02) 9355 8457. Welfare and other support will be provided by your command I also take this opportunity to remind you the Employee Assistance Program is available to you to assist if required. Sincerely SJ Newton Manager, AOCU Delegate 23 February 2023"

Second Allegation Letter

1. On 10 March 2023 Chief Inspector Newton sent a letter to Mr Saraceno, care of his solicitors, Haywards Solicitors, (10 March Letter) which read as follows (with email addresses redacted): "Notification of further allegation details and extension of time to make a statement Dear Mr Saraceno, I refer to my 23 February 2023 correspondence where you were advised of an administrative officer misconduct matter alleging misconduct by you. Accompanying that letter was a schedule of emails subject of the allegation indicating there were 26 emails with 38 attachments considered confidential police information. Included at line 22 of my document is an email sent by you on 12 September 2022 at 22:08 hours which includes six attachments. It is noted that one of those attachments, an affidavit by you for IRC proceedings, is not confidential police information, it is referenced for context only given it forms part of your email. Therefore, the allegation detail is amended to reflect that there were 37 attachments considered confidential police information. An additional audit of your NSW Police Force email account has been conducted and further instances of misconduct - release confidential police information by you - have been identified. Those additional instances are now included in the allegation of misconduct. Further allegation details: An audit of your work email address from November 2022 to February 2023 has identified 10 occasions in which you have disseminated confidential NSW Police Force information without prior authorisation, in the form of internal email communications from members of the Senior Management Team along with 22 individual NSWPF documents. The confidential NSW Police Force information disclosed without authority, referenced above, is outlined in Annexure A of this notification. Included at lines 1 and 2 of Annexure A respectively are, an email sent by you on 21 November 2022 at 00:34 hours which includes six attachments and an email sent by you on 22 November 2022 at 3:45:02 hours which includes two attachments. It is noted that one of those attachments in each of the emails, is an affidavit by you for IRC proceedings, is not confidential information, it is reference for context only given it forms part of your email. The disclosure of NSWPF information between November 2022 and February 2023 was unauthorised and contrary to confidentiality requirements set out in cl. 76 Police Regulations 2015. You are invited to make a statement in response to the allegations. You do not have to make a statement, but if you do your statement is to be provided within 14 days of your receipt of this correspondence. Your statement can be emailed to #XXX or external email to . Your statement, if made, will be considered in the determination of this matter. You will be advised of the decision to either proceed or not proceed with this misconduct matter. Taking into account these new details and your request, made by Haywards Solicitors, for an extension to the due date for your response the due date for any statement in response you wish to make is amended to 31 March 2023. I re-iterate that if a finding of misconduct by you is made the following action may be taken: • terminate your employment (without giving you an opportunity to resign) • terminate your employment (after giving you the opportunity to resign) per s.69(4)(a) - (b) of the Government Sector Employment Act 2013. You are required to maintain the integrity of this misconduct matter and you are prohibited from discussing this matter with any person you know or believe may be a witness or otherwise involved. You are, however, permitted to discuss this matter, on a confidential basis, with a suitable support person, health care practitioner, legal practitioner, or union representative. Should you wish to discuss the procedural aspect of this matter or seek additional information please contact Sgt Flint (02) 9355 8457. Welfare and other support will be provided by your command I also take this opportunity to remind you the Employee Assistance Program is available to you to assist if required. Sincerely SJ Newton Manager, AOCU Delegate 10 March 2023"

Substantial and operative cause of Chief Inspector Newton taking detrimental action

1. Before setting out what was sent to Superintendent Driver and what happened thereafter, I will set out my findings in relation to what activated Chief Inspector Newton to initiate a disciplinary investigation following the receipt of the referral or complaint from the SMU/Superintendent McDonald; to continue the disciplinary investigation and to make allegations of misconduct against Mr Saraceno (this being the alleged victimisation which is attributable to Chief Inspector Newton).
2. The final six paragraphs of Chief Inspector Newton's affidavit were headed "Reasons for investigation", were not objected to and read as follows: 20. Any communications between Mr Saraceno and the PSA that were identified as part of the audit, but did not involve, or appear to involve, the unauthorised disclosure of any information belonging to the NSW Police Force, were not included in the allegations against Mr Saraceno. 21. The only focus of PSC investigation were emails sent by Mr Saraceno to any third party which contained information belonging to the NSW Police Force, and which Mr Saraceno had no apparent authority to release to a third party. 22. The reasons why PSC initiated a misconduct matter against Mr Saraceno, including auditing his emails, and the reasons why I issued him with allegation letters, was because of the suspicion formed by SMU originally, and later by me, that he had engaged in misconduct in disclosing information of the NSW Police Force to the PSA without authority. 23. To the extent it is alleged that I initiated a misconduct matter against Mr Saraceno or issued the allegation letters to him because he was a union delegate or a participant in industrial proceedings, I deny this. I took those steps because, as set out above, I am responsible for managing matters involving misconduct by administrative employees, and there were concerns, based on evidence PSC obtained, that Mr Saraceno had engaged in misconduct. There was no other reason for me to progress the matter against Mr Saraceno. 24. As referred to above, this material is sensitive and confidential, and was only shown to Mr Saraceno and his legal representative at the Sydney Police Centre, without copies being provided, such is the confidential nature of the investigation and the documents involved. 25. Beyond auditing all NSWPF emails to establish whether the Report had been emailed externally, and if so, by who, PSC have conducted no further audits of any NSW Police Force email accounts, other than in relation to Mr Saraceno, in relation to this matter. To the extent the Dispute filed by the PSA seems to suggest that the NSWPF are specifically auditing emails of other Special Constables or PSA delegates, that is not correct. No such auditing is occurring. PSC only conducts email audits where relevant to allegations of misconduct. As set out above, Mr Saraceno came to be audited due to suspicions he had engaged in misconduct.

Chief Inspector Newton's evidence as to his review and assessment of the emails

1. Chief Inspector Newton gave the following evidence in chief: 8. When PSC commenced its assessment of the complaint, we began by looking at the emails that had already been identified as part of the email audits, as set out above. 9. Following the completion of the review of those emails, I formed the view that there were 26 instances where Mr Saraceno sent an email, with some attachments, externally to the NSWPF, where the disclosure of that information belonging to the NSWPF occurred without apparent authority.
2. The PSA cross examined Chief Inspector Newton in relation to this evidence and as noted at [158] above, ultimately submitted that I would not accept his explanation as to the reason for the investigation and allegations, because: 1. he was unable to explain in a number of instances why a particular email or attachment to an email was confidential or otherwise in breach of reg 76 of the Police Regulation; 2. he had not read every attachment; and 3. some of the emails and attachments were not confidential and/or did not breach reg 76.
3. It is the case that Chief Inspector Newton made some concessions in cross examination which raise some questions regarding whether Mr Saraceno in fact engaged in misconduct in respect of each document referred to the Annexures to the Allegations Letters. On the other hand, he also gave evidence which bolstered his evidence that the reason he initiated a misconduct matter and made allegations against Mr Saraceno was solely because he considered that Mr Saraceno had provided sensitive and confidential information to the PSA without authority. In particular, Chief Inspector Newton gave the following evidence in cross examination: 1. he personally reviewed the emails and the attachments to them, that had been obtained through each of the email audits and personally determined whether they constituted misconduct [51] ; 2. he had not read the draft statement of Mr Saraceno that had been listed as an attachment to email number 22 in Annexure A to the 23 February Letter [52] ; 3. it is possible that he did not actually read other attachments before he included them in the 23 February Letter [53] ; 4. there were documents listed as attachments in the schedule to the 23 February Letter which he had "not read in their entirety" [54] ; 5. the inclusion of a news article published on 7 August 2019 in the 'Western Weekender' [55] as a confidential attachment to email number 21 in Annexure A to the 23 February Letter was "an error … it shouldn't have been included as a confidential police [document]" [56] , but it was included "for completeness as an attachment as one of the four attachments to the email" [57] , as where more than one attachment appeared on an email they were included in the descriptor whether or not they were actually part of the misconduct allegation [58] and despite stating in the 23 February Letter that there were 38 individual NSWPF documents (revised to 37 in the 10 March Letter) that were disseminated without prior authorisation; 6. he or Sergeant Flint prepared Annexure A to the 23 February Letter, he could not be sure who [59] ; 7. Godfrey Reports - a term used by the NSWPF to describe a document providing information or making a recommendation to, or seeking the approval of, a senior officer [60] - are in all cases confidential and protected from disclosure by reg 76 of the Police Regulation [61] irrespective of the actual content of the document [62] and despite Godfrey Reports having different levels of sensitivity [63] , as they concern the "business of the New South Wales Police Force" [64] ; 8. the attachments to email number 11 in Annexure A to the 23 February Letter [65] comprised two Godfrey Reports concerning the insignia used to represent the ranks of Special Constables, one of which had been authored by Mr Saraceno [66] ; and 9. one of the attachments to email number 1 in Annexure A to the 10 March Letter [67] was a report which was possibly prepared by Mr Saraceno regarding a review of x-ray training, [68] but even if that were so, Chief Inspector Newton did not accept that it was "available" to Mr Saraceno "to provide to the union evidence of the work he'd performed in respect of the x-ray screening machine" [69] because "it's a NSW Police Document by virtue of our crest on the front of it" [70] , although he was unaware whether the document had in fact been communicated to anyone within NSWPF [71] .

The Involvement of Superintendent McDonald

1. As I have already explained, if Superintendent McDonald had a material effect on the decision to take detrimental action against Mr Saraceno in the form listed in paragraph [91], Superintendent McDonald's motivations for taking the actions which then had the said material effect need to be examined to determine whether his motivations were free of the alleged prohibited reasons. For reasons which I will now explain however, Superintendent McDonald did not have a material effect on either the actions of Chief Inspector Newton or Superintendent Driver.
2. It is the case that Superintendent McDonald was the person who instigated the investigation into Mr Saraceno, in the sense that he alerted the PSC to the possibility that Mr Saraceno may have engaged in misconduct. As explained in paragraphs [114] and [116], the matter was referred to the PSC and Chief Inspector Newton after Superintendent McDonald had first arranged for PSC to conduct two email audits - the first to uncover who had sent the Realignment Document to the PSA, and the second, after Mr Saraceno was identified as the sender, specifically of Mr Saraceno's emails. While no document containing Superintendent McDonald's 'complaint' was tendered in evidence, I infer that it contained a list of allegedly offending emails similar to that which comprised Annexure A to the 23 February Letter.
3. If Chief Inspector Newton had simply taken the list of emails and attachments prepared by Superintendent McDonald and accepted at face value that they evidenced misconduct on the part of Mr Saraceno I would have no hesitation in finding that Superintendent McDonald had had a material effect on Chief Inspector Newton's decision to commence a disciplinary investigation and to advise Mr Saraceno of the allegations of misconduct and that, in those circumstances, the Respondent could not discharge its onus without calling Superintendent McDonald to positively establish that he was not motivated by the prohibited purposes alleged by the PSA. The Full Court in Wong expressed a similar view at [81], although in that case the person who contributed to the decision (and who had, in fact, given evidence), Mr Arnott, had had a material effect on the ultimate decision to take adverse action. Not only had Mr Arnott been the instigator of the process which led to Ms Wong's removal from her position and had provided a large part of the information which the decision maker adopted without verifying its accuracy, but he had also personally authored the reasons for the removal decision and had accompanied the decision maker in seeking advice and expressed his opinion that Ms Wong's employment was "untenable": Wong at [79].

Other asserted reasons Chief Inspector Newton's Evidence should not be accepted

1. The PSA made a myriad of further submissions as to why the evidence of Chief Inspector Newton should not be accepted or, otherwise did not discharge the Respondent's onus with respect to the detrimental actions he took. I address below two of those submissions. To the extent I have not addressed any other submission made, it suffices to say that none of those submissions persuaded me to alter my view as to the reasons why Chief Inspector Newton took the actions he did.
2. First, as I understand it, the PSA contended that Chief Inspector Newton wrongly made allegations of misconduct against Mr Saraceno in circumstances where he was aware that all of the correspondence related to Mr Saraceno "discharging the official business associated with his official position as a union delegate [in relation to which] he had [implied] authority to do so." [74]
3. The problem with this submission is that merely establishing that Chief Inspector Newton was wrong to make allegations of misconduct against Mr Saraceno (because he had implied authority, if that were the fact) does not, of itself, undermine the belief Chief Inspector Newton had. To succeed in this submission the PSA would need to establish not only that Mr Saraceno in fact had implied authority to convey the information he did to the PSA by reason of his position as a delegate, but that Chief Inspector Newton knew that he had such an implied authority, but proceeded to accuse Mr Saraceno of misconduct, nonetheless. Chief Inspector Newton rejected any suggestion that Mr Saraceno had any kind of authority by reason of his position, to send NSWPF documents to the PSA. The following exchange with counsel for the PSA illustrates his position: Q. And to the extent that Mr Saraceno, as at 21 November 2022, is communicating with the union about his involvement in the award proceedings, do you accept that it was available to him to provide to the union evidence of the work that he'd performed in respect of the x-ray screening machine, if that's what this document is? A. No, I don't. Q. And is that because - why is that? A. This is a document intended for internal use. Q. Yes? A. And on that basis it ought not be disseminated externally. [75]
4. In the premises it is unnecessary for me to determine whether as a matter of fact and law, Mr Saraceno had implied authority to provide to the PSA the information and material he did, as even if I were to determine that he did, that fact, in circumstances where it was not established that Chief Inspector Newton (or Superintendent Driver) knew that Mr Saraceno had authority, express or implied, would have no bearing whatsoever on the actual reasons why Chief Inspector Newton (and later Superintendent Driver), took the action he did.

Referral to Superintendent Driver

1. On 11 May 2023 the PSA wrote to Chief Inspector Newton complaining that NSWPF had accessed legally privileged communications; alleging that NSWPF had engaged in victimisation and that other members were concerned about reprisals should they provide evidence in the Award Proceeding; and that in commencing disciplinary process whilst the Award Proceeding is ongoing and by moving Mr Saraceno to the Armory, NSWPF had hindered his ability to instruct and provide evidence in the Proceedings, including but not limited to delaying the preparation of reply evidence; and seeking an undertaking from NSWPF not to take further steps in relation to the disciplinary proceeding. This letter was admitted into evidence only for its non-hearsay purpose. [79] On 12 May 2023 Acting Inspector Rebecca Jackson responded to the PSA's letter, denying any victimisation and confirming that "the misconduct process will continue to run its ordinary course in accordance with the Government Sector Employment (NSW Police Force) Rules 2017."
2. As I have already recorded, sometime between 10 and 15 May 2023 the matter was referred to Superintendent Driver. There is no evidence as to who made the decision to refer the matter to Superintendent Driver, however, as I will explain, in circumstances where I am satisfied that Superintendent Driver conducted his own independent assessment and review of the emails Mr Saraceno forwarded to the PSA, I do not consider it relevant who referred the matter to Superintendent Driver.
3. In his affidavit sworn on 7 June 2023 Superintendent Driver stated he was provided with and took into consideration: 1. a copy of the 23 February Letter and the 10 March Letter and the annexures to those letters (Allegations Letters); 2. Haywards Solicitor's letter of 8 May 2023 (which he referred to as 'Mr Saraceno's response'); and 3. copies of the documents referred to in the annexures to the Letters (i.e the emails and attachments).
4. In cross examination Superintendent Driver explained that he also would have been given and likely would have read, a briefing note or a 'Godfrey Report' with the above documents. [80] However, counsel for the PSA did not explore at all with Superintendent Driver the extent to which he relied or adopted the information contained in the Godfrey Report and, save for in three respects which I discuss at [203], [204] and [209] - [210] below, there is otherwise no evidence that he adopted what was said in the Godfrey Report when he determined that Mr Saraceno had engaged in misconduct and should be terminated.

Substantial and operative cause of Superintendent Driver taking detrimental action

1. Superintendent Driver gave the following evidence in chief: 31. I do not precisely recall when, I found out that Mr Saraceno was a union delegate. I read, in the Application for Relief from Victimisation, that Mr Saraceno was a union delegate. I'm not sure if that was the first time I learned of that information, or if I was told that at some earlier time. 32. I do not have a recollection about when I learned of Mr Saraceno's role as a union delegate because that information was unimportant to me. His role as a union delegate did not form any part of my decision to reach the findings I did regarding Mr Saraceno's misconduct, or to issue the Misconduct Letter. The material made available to me, as I described above, was the sole basis upon which I made the decision to make adverse misconduct findings against Mr Saraceno, and it is only those misconduct findings that have informed my proposed disciplinary action. 33. Similarly, I do not recall when, I found out that Mr Saraceno was participating in industrial proceedings. Mr Saraceno's participation in any industrial proceedings also did not form any part of my decision to reach the findings I did regarding Mr Saraceno's misconduct, or to issue the Misconduct Letter. I otherwise repeat my evidence in the preceding paragraph.
2. Superintendent Driver also gave evidence in chief as to some of the reasoning behind his conclusions that Mr Saraceno had engaged in misconduct as alleged. That reasoning supports a finding that he genuinely held the belief at the time of sending the Misconduct Letter, that Mr Saraceno had engaged in misconduct. I stress that this does not mean that I agree with Superintendent Driver's reasons or that his reasons are in fact correct, however as discussed at length, the correctness of his view is not relevant.
3. I do not propose to set out the whole of Superintendent Driver's reasoning, however some aspects of it require comment.
4. In relation to Allegation 1, Superintendent Driver stated in his affidavit: "12. … I was satisfied, based on the material that was before me, that in or about September 2022, Mr Saraceno: (a) entered, without permission, the unoccupied Security Management Unit Commander's Office; (b) found the document on the Commander's desk (identified as D/2022/79046) that was a sensitive and confidential report about the corporate structure of the NSW Police Force; (c) took two photographs of the document, being one of each of the first two pages; and (d) on 14 October 2022, disseminated the photographs to a third party. 13 … 14. I understand that there was no operational or other reason for Mr Saraceno to have access to that document, and further, that he had not been provided with a copy of the document by his Commander. There was no evidence to indicate permission to disseminate that document to third party. 15. While I do not know whether the Commander's office was locked and Mr Saraceno had to use his key to enter, that did not change my view as to whether the behaviour was misconduct or not. Even if the door was unlocked, for the reasons I set out in paragraph 11 above, the level of access to premises provided to Special Constables requires a level of trust in them that they will not take advantage of the special keys given to them that allow them to access any premises." 16. In my mind, my conclusion as to Allegation 1 was alone enough for me to make finding of misconduct and consider the disciplinary action set out in the Misconduct Letter.

Resolution of the Issues for Determination

1. Having made the above factual findings, the resolution of the Proceedings is relatively straightforward.

Does the Commission have the power to grant the relief sought?

1. The PSA seeks two recommendations and a determination. I am satisfied that the Commission has the power to make the recommendations sought, however, for the reasons discussed at [24] - [26], above the Commission does not have the power to make a determination, in the form sought, "that reg 76 of the Police Regulation 2015 does not apply to PSA delegates who are exercising their rights as delegates to use NSW Police Force email to communicate with the PSA and/or its solicitors regarding union matters or legal proceedings". It may be a determination that the Commission might make in the course of deciding whether to make the recommendations sought, if this is necessary in order to decide whether to make the recommendations, but the determination in the form it is sought is tantamount to a declaration and therefore not one that I would make. I note that the Commission might also determine whether reg 76 applies to delegates who are exercising their rights as delegates to use NSWPF email to communicate with the PSA and/or its solicitors regarding union matters or legal proceedings, when exercising its function to determine whether Mr Saraceno has been unfairly threatened with termination or has been unfairly terminated, but that is not the case which the PSA brought before me.
2. For the reasons set out below and as it was submitted by the Respondent, it is unnecessary for me to make any determination as to the application of reg 76 to union delegates, when deciding to make the two recommendations sought by the PSA.

Are the factual bases upon which it is contended relief is warranted, established?

1. The PSA seeks a recommendation that the Respondent cease accessing emails from PSA delegates to PSA solicitors and administrative support staff where those emails are marked "Sensitive-Legal" or are otherwise subject to legal professional privilege.
2. Chief Inspector Newton gave the following uncontroverted evidence in his affidavit: "Beyond auditing all NSWPF emails to establish whether the Report [Realignment Document] had been emailed externally, and if so, by who, PSC have conducted no further audits of any NSW Police Force email accounts, other than that in relation to SC Saraceno, in relation to this matter. To the extent the Dispute filed by the PSA seems to suggest that the NSWPF are specifically auditing emails of other Special Constables or PSA delegates, that is not correct. No such auditing is occurring. PSC only conducts email audits where relevant to allegations of misconduct. As set out above, SC Saraceno came to be audited due to suspicions he had engaged in misconduct." [96]
3. Superintendent Driver gave the following uncontroverted evidence in his affidavit: "Further, PSC does not monitor people's NSWPF emails without reason. There are audits conducted in respect to email and the COPS data base that all personnel are subject to. The NSWPF access emails in instances of investigating suspected misconduct, as has occurred here with SC Saraceno. I am not aware of any investigations into any other Special Constable's (sic) at present and I am not aware of any Special Constable's email being accessed outside of any standard audits, disciplinary process or misconduct." [97]
4. The above unchallenged evidence is consistent with the Email Guidelines and is sufficient for me to determine that there is no factual basis to warrant the making of the recommendation sought. Moreover, as I explained at [136] - [141] I do not consider that communications sent using the NSWPF email system can constitute privileged communications.
5. The audits of Mr Saraceno's email and the existence of the Email Guidelines, which on their terms permit the NSWPF to access employee's emails, arguably provide part of the factual foundation for the Commission to make the second recommendation sought, namely that the parties consult to devise a document that covers procedures for PSA delegates using NSWPF email to communicate with the PSA regarding legal proceedings and workplace disputes. However, there was also evidence that the PSA already has a document - in the form of the Delegates' Handbook - which recommends that delegates not use their work email if they are concerned to keep their communications confidential from their employer. As counsel for the Respondent submitted, this is "sensible counsel" [98] and the adoption of such a course entirely obviates the need for the parties to devise any other kind of procedure for PSA delegates using NSWPF email to communicate with the PSA regarding legal proceedings and workplace disputes, pursuant to a recommendation of the Commission or otherwise.

Does the dispute have a collective element and if not, should the Commission decline to grant relief for this reason?

1. As discussed at [22] and [23] a collective element is not required to make a recommendation pursuant to s 136(1)(a). However, the lack of a collective element is a factor that the Commission may take into account when determining whether to make a recommendation.
2. In the present matter the PSA led no evidence to support its assertion that the PSA had been impeded in finalising Mr Saraceno's evidence and in obtaining evidence from other members, in respect of the Award Proceeding. Nor did it lead any evidence to show that NSWPF's accessing of emails pursuant to the Email Guidelines was causing any issues beyond those now encountered specifically by Mr Saraceno. Given the lack of any established collective element, I am not persuaded that there is any need for the Commission to intervene by making any recommendations regarding NSWPF's accessing of delegates' emails.
3. Nor is there any evidence to establish that there is a broader issue regarding the provision of confidential NSWPF information to the PSA. It may be recalled that the allegations made against Mr Saraceno is that he forwarded NSWPF information "without authority". Implicitly, no issue would have arisen if he had first obtained permission to disclose the information to the PSA. There is no evidence that he attempted to do that or that there was an issue with NSWPF denying permission when asked.
4. Counsel for the PSA submitted that: "The idea that employees need to get permission from New South Wales Police before they can provide information to the union is frankly inconceivable and cuts directly across the rights that are protected by s 210." I do not accept that submission. Section 210 protects an employee's right to participate in proceedings relating to an industrial matter, however it does not in terms give an employee the right to disclose their employer's confidential information to a third party, even where this is done as part of their participation in proceedings. I see nothing 'inconceivable' about the notion that an employee needs to get their employer's permission to disclose their employer's confidential information to the union. One result of seeking such permission may be the implementation of a confidentiality regime in respect of to whom, and how, the information is to be disclosed. If the employer were to unreasonably refuse to allow the information to be conveyed to the union, an approach might be made to the Commission to help resolve the issue. In the present case however, there is no evidence that any approach was made to the Respondent for permission to disclose the information or that the NSWPF was otherwise unreasonably impeding the flow of relevant information to the union.

Should the Commission decline to grant relief because the PSA failed to follow the grievance and dispute settling procedures set out in Clause 9 of the Award?

1. As recorded at [18] above, pursuant to s 131 of the IR Act the Commission may refuse to deal with an industrial dispute until it is satisfied that any relevant dispute resolution procedures in an industrial instrument have been followed as far as is reasonably practicable in the circumstances. Clause 9.9 of the Award provides that a matter may be referred to the Commission if it remains unresolved after the grievance and dispute settling procedures set out in the clause have been undertaken. However, cl 9.1 of the Award makes it plain that the procedures are to be followed in relation to: "All grievances and disputes relating to the provisions of this award…". That is, if a grievance or dispute does not relate to the provisions of the Award, the procedures need not be followed before it may be referred to the Commission and s 131 will have no role to play.
2. To the extent the dispute concerned the use of NSWPF email facilities, which is covered in cl 59.1.1 of the Award, it was incumbent upon the PSA on behalf of Mr Saraceno, to first follow the dispute settling procedures before seeking relief from the Commission. However, the dispute also encompassed a concern about the right of Mr Saraceno as a delegate to provide confidential information to the PSA and I am not convinced that this part of the dispute required the PSA to follow the procedures in cl 9 of the Award before approaching the Commission for assistance.
3. However, I am not prepared to grant any relief in respect of that part of the dispute which was not governed by the dispute resolution procedures in the Award in circumstances where there is no evidence that Mr Saraceno requested permission to disclose the information referred to the Annexures to the Allegations Letter and no evidence that the NSWPF was unreasonably impeding communications between delegates and the PSA. As I have already observed, had Mr Saraceno sought permission to provide certain documents to the PSA, and permission was refused, the PSA might then have sought the intervention of the Commission. Similarly, if there was evidence that the PSA's conduct of the Award Proceedings (or other proceedings relating to an industrial matter) had been impaired by an inability of its members to properly instruct it due to reg 76 of the Police Regulation or by the failure of NSWPF to permit the provision of information to the PSA, the Commission might well intervene, but that was not the case brought by the PSA.

Victimisation Proceeding:

1. As is evident from my factual findings, the Respondent has rebutted the presumption in s 210(2) of the IR Act. Mr Saraceno's membership of, and position within, the PSA and/or his participation or intended participation in the Award proceedings played no substantial or operative part in the Respondent's delegates' decision to take detrimental action against Mr Saraceno. Accordingly, the PSA has not established that Mr Saraceno has been victimised within the meaning of s 210(1) and no relief is warranted.

Conclusion and Orders

1. I order that both Proceedings be dismissed.
2. I note that the PSA on behalf of Mr Saraceno, or Mr Saraceno in his own right, has the ability to seek relief for unfair dismissal. Subject to an extension of time being granted, a claim could be brought pursuant to s 84 of the IR Act in respect of the threat to dismiss Mr Saraceno, or as of right following his actual dismissal, on the basis that the dismissal is harsh, unreasonable or unjust. As I have been at pains to stress throughout this Decision, it may be that the Respondent is wrong about the nature of Mr Saraceno's conduct. If that is the case, that may result (depending on all the facts and circumstances) in Mr Saraceno obtaining relief for unfair dismissal. However, that is an argument for another day. Janet McDonald Commissioner

Endnotes

1. 2022/213646 - Crown Employees (NSW Police Force Special Constables) (Security) Award 2022; Ex A3 (Application for New Award).
2. Tcpt, 5 July 2023, p 37(49) - 38(26).
3. Tcpt, 5 July 2023, p 5(47).
4. Upheld on appeal.
5. Tcpt, 5 July 2023, p 5(13) - (15).
6. Applicant's Outline of Submissions, [19].
7. Special leave refused: B71/205.
8. Wong at [26].
9. Tcpt, 5 July 2023, p 11(33) - (35).
10. Tcpt, 19 June 2023, p 11(3) - (14).
11. Respondent's Outline of Submission dated 7 June 2023 at [20].
12. This evidence, as a contained in Chief Inspector Newton's affidavit, was ultimately admitted only for its non-hearsay purpose: Tcpt, 19 June 2023, p 31(6) - (9).
13. Tcpt, 5 July 2023, p 57(19) - (21), (30)- (31).
14. Tcpt, 5 July 2023, p 12(45) - (49).
15. Tcpt, 5 July 2023, p 12(50) - 13(3).
16. Respondent's Closing Submissions at [16].
17. Respondent's Closing Submissions at [29] and Tcpt, 5 July 2023, p 38(28) - (43).
18. Tcpt, 5 July 2023, pp 37(49) - 38(26).
19. ROS at [21].
20. See e.g., Respondent's Closing Submissions at [47] and [53].
21. Ex R2.
22. Ex R3.
23. The reference to Hellicar is a reference to ASIC v Hellicar (2012) 247 CLR 345; [2012] HCA 17.
24. Exhibit A3.
25. Exhibit A2, Tab 1.
26. Exhibit R3, Annexure DD-2.
27. Exhibit A5.
28. ACS [10(a)].
29. Tcpt, 5 July 2023, p 37(16)-(17).
30. Tcpt, 19 June 2023, p 31(4) - (9).
31. Tcpt, 19 June 2023, p 36(12), 39(17).
32. Tcpt, 19 June 2023, p 36(21).
33. Tcpt, 19 June 2023, p 36(17).
34. Tcpt, 19 June 2023, p 31(39)-(49).
35. ACS [42].
36. Tcpt, 5 July 2023, p 44(27)-(28).
37. Ex A9 and Ex A10.
38. Tcpt, 5 July 2023, p 63(25).
39. Tcpt, 19 June 2023, p 41(44).
40. Exhibit R3 [6].
41. ACS [16].

Amendments 14 February 2024 - Minor amendments made to paragraphs [119], [159], and [214] 22 February 2024 - Minor amendments made to the following paragraphs: [43] - insert the word 'the' before the word 'Commission' in the first sentence. [46(2)] - amend the word "specially" so that it reads "specifically". [192] - amend the word 'witness" so that it reads "witnesses". 13 June 2024 - The name of the Notifier/Applicant's representative on the cover page amended from "A McRoberts" to "A McRobert" [105] - Amended the word "Police" to "Policy" [130] - Amended the name "Robert" to "McRobert" [134] - Amended the name "Robert" to "McRobert" [149] - the words in parenthesis were moved so that they appear after the words "Annexure A" [158(2)] - the word "that" inserted after the word "satisfied" and the following word "the" was deleted [168(3)] - the word "in" appearing before the word "them" was deleted 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: 13 June 2024