Raeburne v Department of Justice and Attorney General [2011] NSWIRComm 48 | Case summary

Industrial Relations Commission (NSW)|2011-03-22|Before: Boland P, Walton VP, Harrison DP, Grayson DP

stice and Attorney General (Respondent) Representation: R Reitano of counsel (Appellant) E S Brus of counsel (Respondent) Fitzpatrick Solicitors Pty Ltd (Appellant) Crown Solicitor (Respondent) File Number(s): IRC 1175 of 2010 Decision under appeal Jurisdiction: 9105 Citation: [2010] NSWIRComm 130 Date of Decision: 2010-10-05 00:00:00 Before: Grayson DP File Number(s): IRC 1247 of 2009

DECISION 1Ainsley Raeburne has sought leave to appeal and, if leave is granted, to appeal from a decision of Grayson DP in Raeburne v Attorney General's Department [2010] NSWIRComm 130. In that decision his Honour dismissed an application by Mr Raeburne under s 84 of the Industrial Relations Act 1996 ("the Act") seeking relief for unfair dismissal from his employment with the Department of Justice and Attorney General ("the Department"). 2Mr Raeburne commenced his public sector career in 1981. Since then and until 11 August 2009 when he was dismissed, Mr Raeburne had been continuously employed, working in a number of different departments. His most recent period of employment began in February 1998 when he commenced working as a Clerk Grade 1-2 with the Department, attached to the Victims Compensation Tribunal. 3The clerical support structure for processing claims in the Victims Services Unit was organised into five teams. In about 2005, Mr Raeburne was appointed as Acting Supervisor for Team A. In August 2005, Ms Caroline van Waeyenberghe, a member of Team A, lodged a complaint against the appellant. Ms Waeyenberghe had complained that the appellant had spoken to her in an abrupt and condescending manner and that his conduct towards her was in the nature of intimidation and bullying. Victims Services conducted an internal investigation of the complaint and attempted to settle the matter informally. What followed is summarised in a letter to the appellant from the Director General of the Department, Mr Laurie Glanfield (there does not appear to be any dispute about the sequence referred to in the extract from the letter below): On 17 October 2005 Mr John Le Breton, Director Victims Services, notified the Director, Corporate Human Resources of the results of the investigation namely: (a) Mr Raeburne's behaviour was inappropriate; (b) Mr Raeburne should undertake relevant training to improve his communication and conflict resolution skills; and (c) Mr Raeburne is to meet with his manager regularly for feedback. Further in the memo, Mr Le Breton noted a previous complaint regarding Mr Raeburne's communication style made in May 2004. On 20 December 2005 I determined it appropriate that Mr Raeburne be subject to remedial action in the form of a performance improvement plan and listed six training courses as a guide for completion. On 18 April 2006 I wrote to Mr Raeburne acknowledging his refusal to undertake the remedial action as advised previously. I further instructed Mr Raeburne to comply with my initial request and to provide a written confirmation of his intention to comply within 14 days. At the time I advised Mr Raeburne that failure to do so would result in disciplinary action being taken. On 24 October 2006 I concluded Mr Raeburne had engaged in misconduct in that he wilfully disregarded previous directions to undertake remedial action. I informed Mr Raeburne I was considering dismissal as a disciplinary action. Mr Raeburne subsequently commenced unfair dismissal proceedings in the IRC. On 15 December 2006, following Mr Raeburne's application for unfair dismissal in the IRC, I wrote to Mr Raeburne regarding the outcome of the conciliation before Deputy President Grayson on 21 November and 5 December 2006. At this time I noted Mr Raeburne's willingness to undertake five courses nominated by Victims Services and to attend meetings with his supervisor in respect of those courses. At this time I reserved the right to revisit the disciplinary matter should Mr Raeburne fail to comply. 4In the decision appealed against, Grayson DP referred to the foregoing episode in the following terms [5] ...The first such application (IRC 2006/3467) was filed in November 2006 in circumstances where the applicant was resisting the respondent's direction that he submit to a Performance Development Plan. The plan was proposed by the respondent after a complaint against the applicant by a fellow employee (Caroline Van Waeyenberghe). The complainant alleged that she had been spoken to by the applicant in an abrupt and condescending way and that his conduct towards her was in the nature of intimidation and bullying. The applicant disputed the allegations and took issue both with the manner in which the respondent investigated the complaint and also with the conclusion it reached that remedial action be taken against him in relation to the conduct complained of. The complaint, I note, was made in August 2005 and the respondent's decision to take remedial action was communicated to the applicant in December 2005. [6] In June 2006, in the light of the applicant's continuing refusal to undertake the remedial action proposed by the respondent, the respondent commenced disciplinary action against him. The commencement of disciplinary action led to the applicant bringing the proceedings in IRC 2006/3467 which ultimately settled at conciliation before me upon the basis that the applicant consented to undertake, by way of remedial action, certain training courses in conflict resolution, workplace discrimination and harassment and so on. At no time in the course of those proceedings was there actual or threatened dismissal evident. 5In March 2008, the appellant came under the supervision of Ms Mary Phillips (the appellant had been removed from his position as Acting Supervisor of Team A). The team was supposed to consist of three people, however, for most of the period between March and May 2008, the team operated with only Ms Phillips and Mr Raeburne, causing a greater workload for these two team members. 6The appellant was absent on sick leave for approximately eight days at the end of April/early May 2008 and during his absence he was not replaced. When he returned to work on 5 May he noticed "a large volume of backlog work waiting for me in my in-tray." He said in his evidence: "This work should have been done by Ms Phillips and other support staff." The appellant approached Ms Phillips and said to her that they needed to deal with the backlog within the Team. Ms Phillips agreed the backlog "should be cleared first". 7On 6 May 2008, the appellant sent Ms Phillips an email copied to the Compensation Manager, Ms Sue Hogan. The email referred to the backlog and the agreement to clear it. The email relevantly stated: ... You have agreed that the backlog should be cleared first which I am currently doing without any assistance. The agreement includes you action all incoming corro from Mon 5 May until the backlog is cleared. I have therefore returned to you two court documents dated 5 May and three older requests from solicitors dated 18 April and 2 May which you have failed to respond. I note complex corro and diary entries by you are always left with a question mark for me to decipher. Your reluctance to action complex corro, case manage files, listings, assessors adjournments and in particular police and court proceedings has been noted. Accordingly you are requested not to delegate and dump work in my tray whenever my back is turned. As a supervisor you are to communicate directly with me prior to the allocation of any work. Team A has a reputation for quality in work produced largely due to my efforts. ... 8On 7 May 2008, Ms Phillips responded. Grayson DP described the response in terms we do not disagree with: [20] On 7 May 2008, Ms Phillips sent the applicant what could only be described as a conciliatory message seeking to clarify the issues he raised and seeking expressly "to foster a better working relationship" with him. She sought to explain what had been done in his absence, to explain how she did her best to allocate to him work of the type that he personally preferred and she complimented him on his efficiency in carrying out that work. [21] She also extended to the applicant an offer of support and a request (my words) that he be more co-operative in the acceptance of work allocated to him. In making that request of the applicant, Ms Phillips referred to his practice of rejecting certain types of tasks such as expenses and general correspondence and she invited him to indicate whether he wished, with appropriate training, to carry out those types of tasks. [22] Finally, she asked that he raise with her in the course of normal everyday conversation (rather than by terse email I infer) any further concerns he may have. 9What happened next is accurately described by the Deputy President at [23]-[29] of the decision under appeal: [23] Rather than adopting the course proposed by Ms Phillips, the applicant informed Ms Hogan (Ms Phillips' superior) that he would not be meeting with Ms Phillips and that he would be providing a written response to her 7 May 2008 email in due course. This he did in the form of a 7-page memo to Ms Hogan (plus attachments) in which he complained that Ms Phillips was an incompetent supervisor who delegated all her work to him which caused him to be overworked. He claimed this was in breach of the respondent's workplace bullying policy. He further referred to and attached an email he had sent to Ms Hogan's predecessor on 12 February 2004 in which he levelled similar accusations against Ms Phillips indicating in none too subtle terms that she did not meet his expectations of her and that he would not tolerate the situation any further. [24] He further informed Ms Hogan presumably with the intention of bolstering his own position relative to that of Ms Phillips: In relation to the Diary Mary has no concept of what the Diary represents. and later Case managing files requires a high level of analytical and conceptual skills together with experience and a working knowledge of the departments policies and procedures. Employees like me who possess these skills are an asset in the team. [25] His memo to Ms Hogan of 12 May 2008 ended with an ultimatum that Ms Phillips: "...is to demonstrate and undertake the responsibilities of a senior clerk in compensation. Hopefully in time there is improvement. However if the situation arises again I will not hesitate referring this matter to the Industrial Relations Commission. This is in accordance with the Workplace Grievances Act (3.9). Accordingly there will be no meetings in relation to this matter." [26] Upon receipt of the applicant's memo of 12 May 2008 Ms Hogan, as Manager of the Victims Services Unit sought to meet him and discuss the situation. She proposed a time and a venue for the meeting. She received the following response: I refer to your proposed meeting for Tuesday 27 May at 2.30pm. I affirm my position in this matter as per my document dated 12 May 2008. Please refer. Accordingly there will be no meetings in relation to this matter. Any communications in this matter are to be communicated to me by email or letter. [27] Ms Hogan then advised the applicant that she would proceed to investigate his concerns about Ms Phillips without further input from him and that if he wished to reconsider his position in that regard and to meet with her, he should so inform her by 4 June 2008. The applicant did not respond and on 5 June 2008, he filed his second unfair dismissal application (IRC 2008/854) which came on for conciliation before Sams DP on 25 June 2008. At conciliation it was agreed that the investigation into the applicant's concerns about Ms Phillips should be completed and that the unfair dismissal application should await the outcome of such investigation. [28] Ms Hogan then completed her investigation into the concerns raised by the applicant and on 26 August 2008, submitted her findings, in the form of a report to Mr Baldi, Assistant Director Employee Relations. In essence, Ms Hogan found the applicant's complaints about Ms Phillips by and large (and save perhaps for her practice of putting 'post-it' notes on files) lacked substance and that he had over-reached himself by purporting to impose obligations upon Ms Phillips (see above) to "demonstrate and undertake" certain responsibilities and to improve. Ms Hogan also concluded that the applicant was less than co-operative in the process laid down by departmental policy for resolving workplace grievances. [29] Notably after statistical analysis of the workload and processing for Team A Ms Hogan found contrary to the applicant's criticism of her, that Ms Phillips carried more than her fair share of the workload. Again contrary to the applicant's criticism of her, Ms Hogan found Ms Phillips was a highly skilled staff member with a well developed awareness of the function of the unit's diary in case management and as the applicant's supervisor, with authority to delegate tasks (or in other words allocate work) to him. 10In her affidavit evidence, Ms Phillips described what she considered to be a difficult relationship between herself and the appellant. She cited his unwillingness to communicate in a reasonable manner, his uncooperative attitude, his rudeness and his confronting behaviour. She said she felt humiliated and harassed by his loud and "authoritative" tone of voice, his lack of respect and his aggressiveness. Ms Phillips deposed that the ongoing difficulties she was experiencing with the appellant were a major factor in her seeking and obtaining a secondment out of the Unit in late 2008. 11Ms Phillips' evidence regarding Mr Raeburne's unwillingness to communicate in a reasonable manner was at times equivocal. In cross-examination, the following exchange occurred: Q: When you asked him questions he answered them, correct? A: Yes. Q: When you asked him questions and he answered them, he was communicating with you, wasn't he? A: In a way, yes. 12Mr Raeburne denied he was difficult to supervise and that any difficulty in communications was the fault of Ms Phillips "because she had a radio playing at loud volume and further she seldom talked to me." Mr Raeburne also denied certain incidents complained of by Ms Phillips occurred. One such incident was that the appellant threw down a bundle of papers on Ms Phillips' desk and said to her "there are four correspondences to action and four correspondences for filing you do it" in a loud and authoritative voice and this left Ms Phillips feeling humiliated and harassed in front of other staff. Although Ms Phillips made a contemporaneous file note, she did not mention Mr Raeburne's action in throwing the bundle on her desk nor the tone in which he addressed her. Nevertheless, Ms Phillips maintained under cross-examination that the incident occurred as she had described it. Other incidents cited by Ms Phillips involving Mr Raeburne's allegedly poor attitude and conduct were also not recorded in contemporaneous file notes. 13The application by the appellant in Matter IRC 2008/854 was made because of some alleged threat of dismissal made by Ms Phillips on 7 May 2008. No threat is apparent on the evidence and it would seem the application under s 84 of the Act was baseless. In any event, the proceedings were listed before Sams DP for conciliation on 25 June 2008. It was agreed by the parties that a review would be undertaken of concerns raised by Mr Raeburne in his application and a report provided to Mr Raeburne. As the earlier extract from his Honour's decision shows, the report was prepared by Ms Hogan and provided on 26 August 2008. The parties reported back to Sams DP on 28 August 2008 where it appears his Honour encouraged further discussion amongst the parties. A further report back was scheduled for 22 October 2008. 14On 15 September 2008 Mr Raeburne commenced a secondment to the Office of Fair Trading. Given that development, Mr Baldi sought to have the matter before Sams DP relisted in an attempt to finalise the proceedings. The matter was relisted for 22 September and on that occasion Sams DP stated: I intend to formally discontinue the proceedings and complete the matter. I make orders accordingly so that concludes the matter. 15His Honour's decision to "formally discontinue the proceedings" was not on any application by the appellant. The appellant was not present at the hearing on 22 September 2008 and only his solicitor appeared. The appellant's instruction to his solicitor was that the matter should "remain in the list regardless of my employment status". Nevertheless, his Honour considered there was an "overwhelming basis upon which this matter should be discontinued." The appellant's solicitor appeared to accept that was the appropriate course. 16When Mr Raeburne was subsequently advised by his solicitor the matter had been discontinued, he said he disagreed with that course and asked his solicitor what he should do regarding Ms Hogan's report of 26 August 2008. The appellant said his solicitor's advice was words to the effect, "prepare your response". 17It may be noted that the appellant's 12 months' secondment was cut short and he returned to the Victims Services Unit on 30 October 2008. He said he felt concerned that the matters raised in Ms Hogan's report had not been resolved or dealt with. He said he considered it appropriate to "prepare a comprehensive response to Ms Hogan's Report." 18Mr Raeburne then prepared a "memorandum setting out my concerns regarding Ms Phillips and I attached it to documents in support of my contention that Ms Phillips was not properly competent for her role ..." On 27 November 2008 Mr Raeburne lodged the memorandum with the Industrial Registry. In doing so, Mr Raeburne stated: My intention in lodging the document was that it would be a record for future purposes should I need to seek to reactivate the 2008 proceedings. Although I was aware the 2008 proceedings were recorded as having been discontinued I had not consented to any discontinuance and I was of the view that the proceedings could be reactivated should I wish to do that. 19Initially, the Registrar refused to accept the memorandum and attachments indicating to the appellant that the matter had been concluded. However, the appellant made a second attempt to file the documents and in doing so asked that the documents not be referred to the Registrar. The documents found their way into the file, but we note there was no endorsement of the documents with a date stamp as was required by r 7(2) of the Industrial Relations Commission Rules 1996, which was the relevant rule at the time. 20In an apparent attempt to demonstrate the alleged incompetence of Ms Phillips, the attachment to Mr Raeburne's memorandum contained data downloads, correspondence and other material that identified personal information of Victims Services' clients, including names and addresses. 21On 10 December 2008 Ms Helen Kidston, Director, Victim Services, wrote to Mr Baldi, Assistant Director Employee Relations, expressing concern that a potentially serious breach of confidentiality had occurred and referring the matter to Mr Baldi for his consideration as to whether Mr Raeburne's action in filing the material in the Industrial Registry would constitute grounds for a disciplinary investigation. 22Mr Baldi recommended to the Director General of the Department that a disciplinary investigation occur into allegations of misconduct by Mr Raeburne and that Ms Wendy Klaassen of GVK Consulting be appointed to carry out the investigation. 23On 18 February 2009 the Director General initiated the investigation and appointed Ms Klaassen to conduct a "disciplinary investigation" into the following matters: (a) Investigate the circumstances surrounding the provision of a memorandum to the Registrar, Industrial Relations Commission, dated 27 November 2008 containing personal, private and/or confidential client information relating to victims of crime; (b) As a result of these actions, determine whether Mr Raeburne has breached the Department's Code of Conduct and Ethics, relevant policies and legislation, including the Charter of Victims Rights and sections 17 and 18 of the Privacy and Personal Information Protection Act 1998 relating to the limits on use and disclosure of personal information. (c) Determine whether Mr Raeburne has continued to engage in inappropriate conduct and behaviour for which he has been previously disciplined, including: i. unwillingness to cooperate in discussions and meetings regarding conduct and performance issues; ii. disrespect to supervisors; iii. inappropriate communication style; iv. refusal to obey instructions; and, v. failure to act ethically, professionally and with propriety in his dealings with others. 24In a letter dated 18 February 2009, the appellant was advised of the investigation, the allegations against him and the various actions that could be taken against him if it were determined that he had engaged in misconduct. As a consequence of this notification it appears the appellant notified the Industrial Relations Commission of a further threatened dismissal under s 84 of the Act (IRC 2009/243). The notification was listed for conciliation in mid-March 2009, at which time it was stood over pending the outcome of the disciplinary investigation with the respondent undertaking that it would better particularise the allegations to be investigated. This was done in a letter to the appellant's solicitor dated 24 March 2009. The appellant accepted in cross-examination that the letter of 24 March 2009 set out "specifically" the allegations against him. Nevertheless, the appellant sought further particulars and Ms Klaassen provided these in a letter dated 4 May 2009. 25The appellant exercised his right and declined to be interviewed during the course of the investigation and he further declined the opportunity to meet with the Director General at the completion of the investigation. However, through his solicitor, the appellant did provide a written response on 22 May 2009 to the allegations against him. 26The disciplinary investigation was conducted in accordance with the guidelines for dealing with misconduct as a disciplinary matter as set out in Ch 9 of the NSW Government Personnel Handbook. On 9 June 2009 Ms Klaassen provided her report to the Department. The report concluded that Mr Raeburne had engaged in misconduct and recommended disciplinary action should proceed. The appellant was provided with the opportunity to respond to the findings but he declined. 27In relation to whether Mr Raeburne had continued to engage in inappropriate conduct and behaviour for which he had previously been disciplined (the previous incident being that which occurred in 2005) Ms Klaassen found that since May 2008 Mr Raeburne had continued to display a pattern of behaviour which included:

First instance decision 36Relevantly, the Deputy President made the following findings: (a) whilst Ms Hogan was in the process of investigating the matter during June to August 2008, the appellant's antagonistic and unco-operative conduct towards Ms Phillips continued ([30]); (b) that Ms Phillips' dealings with the appellant constituted a threat to his employment was at the time and remains fanciful ([32]); (c) his Honour did not accept the criticism levelled at the respondent for taking no action at the time (against the appellant) in respect of the additional matters set out in Ms Phillips' affidavit given firstly, the appellant's "no meetings" edict and hence the difficulty in getting him to engage in the process of grievance resolution and secondly, given that the matter de-escalated upon his secondment to the Consumer Trader and Tenancy Tribunal on 15 September 2008. That secondment which was to be for a twelve-month period, ended unexpectedly and the applicant returned to the Victims Services Unit a month or so afterwards and as earlier noted, it was about this time that Ms Phillips departed the unit ([34]); (d) the appellant decided he would continue his attack on Ms Phillips by preparing and seeking to file in IRC 2008/854 a response to Ms Hogan's review findings which he had received in late August 2008. In that response was the private and confidential material relating to victims of crime which the applicant initially sought to file on 27 November 2008 and upon its return to him by the Registrar, again sought to and this time did file on 9 December 2008 ([35]); (e) the appellant's action demonstrates a single-minded and unprincipled willingness on the appellant's part in pursuit of his own ends, to breach the confidentiality with which he was entrusted and it cannot be said without more that his conduct was in some way excusable by reason of the Industrial Relations Commission Rules which limit the extent to which access to material filed in connection with proceedings before the Commission may be granted ([36]); (f) his Honour did not accept the gloss put on the appellant's conduct in seeking to understate the seriousness of disclosing the confidential information to persons other than those with a right to know it and it is no answer to the allegation of misconduct that the respondent raised no objection to material of the same nature having been lodged by the appellant with his application for relief in those proceedings. His actions in disseminating that sensitive information without the consent or knowledge of the individuals concerned are to be viewed most seriously ([37]); (g) to the extent that assertions of procedural unfairness are made on the appellant's behalf, it can be accepted that the respondent could have managed its processes of enquiry in a more prompt and timely way and as much was conceded by Mr Baldi as a matter of general principle but I am not persuaded that the outcome of Ms Hogan's review was in some way tainted by her earlier criticisms of the appellant. Similarly, I am not persuaded that the Klaassen investigation or the respondent's disciplinary procedures generally were other than fair in all the circumstances ([38]). 37It is apparent that the principal basis upon which the Deputy President dismissed the appellant's application for relief was his conduct in disclosing clients' confidential information.

Appeal grounds 38There were six grounds of appeal. The main grounds may be summarised as follows: (1)his Honour erred in failing to apply the correct test in determining the application, namely, whether or not the dismissal was harsh, unjust or unreasonable; (2)his Honour erred in finding that there was a dissemination and/or disclosure of confidential information by the appellant such as warranted termination of employment; (3)his Honour erred in failing to find the dismissal was harsh, unjust or unreasonable for reasons that included that the misconduct was not serious and wilful.

Case for the appellant 39The main elements of the appellant's submissions may be summarised as follows: (1) his Honour's decision does not demonstrate any consideration of the statutory criteria for unfairness being whether Mr Raeburne's termination was 'harsh, unjust or unreasonable': see Mohammed Shakiq v Boral Australia Gypsum Limited [2003] NSWIRComm 182 and the reference therein to Outboard World Pty Ltd t/as Budget Waste Control Sydney v Muir (1993) 51 IR 167; (2) the following matters do not appear to have been considered: (a) Mr Raeburne's length of service. (b) Whether the conduct was deserving of removal. (c) The financial impact upon Mr Raeburne arising from the dismissal. (d) The appellant's commendable work history; (3) it was not open to Grayson DP to omit consideration of the appellant's case: see for example Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2; (2010) 192 IR 363 at [18]; (4) even if misconduct is made out there is still a duty upon the Commission to consider whether the punishment meted out, dismissal, is appropriate in all the circumstances: see Metropolitan Meat Industry Board v Australasian Meat Industry Employees Union (NSW Branch) [1973] AR (NSW) 231 at 233; (5) had his Honour properly considered Mr Raeburne's length of service and his previous good work history when addressing the statutory test of harsh, unjust or unreasonable then a different outcome would have followed. The termination was clearly harsh given the alleged misconduct weighed against the long service history of the appellant as well as the diligent and dutiful manner in which he approached his work; (6) the decision of his Honour on the issue of the confidential information overextends from the manner in which the issue was particularised against Mr Raeburne when he was removed from the Public Service; (7) his Honour erred in finding that Mr Raeburne had disseminated confidential information. Grayson DP failed to have proper regard to whom the information was being provided (the Industrial Registrar), the context in which the material was being provided (in proceedings which were confidential given that they were still in conciliation and not arbitration) and the reaction of the Department upon being informed that the material had been forwarded to the Commission; (8) it was alleged that Mr Raeburne had made his supervisor feel 'unsupported and humiliated'. Under cross-examination it emerged that Ms Phillips, the supervisor in question had come to feel this way due to a lack of direction from management along with there being 'no communication from Mr Raeburne'; (9) whilst the reasons for Mr Raeburne's termination seek to paint a picture of an employee who refused to be an active member of a two person team nothing could be further from the truth. Mr Raeburne did communicate when required to but otherwise he kept to himself and simply did his work; (10) it was not contested that the allegations relating to Ms Phillips were not to be investigated or acted upon once Mr Raeburne was seconded to the Consumer Trader and Tenancy Tribunal in September 2008. The failure of the Department to act upon the allegations of misconduct whilst ever the appellant was in a different department clearly shows that the alleged misconduct was both innocuous and was also only to be pursued at the discretion of the appellant's supervisors. Had the misconduct been serious in its nature then the only course open to the Department would have been to pursue Mr Raeburne via the disciplinary procedures available no matter what section of the Department Mr Raeburne was working in. The fact that this did not occur and that so long as Mr Raeburne was out of sight the allegations would be out of mind shows the trivial nature of what was being dealt with; (11) allegations relating to May 2008 were left undisturbed until March 2009 at which time the Department saw fit to re-institute the complaints which had been made by Ms Phillips. These were the same matters which Mr Baldi had said were not going to be investigated as the Department had elected not to pursue them as part of the 'out of sight, out of mind' strategy which was being adopted.

Case for the respondent 40The main elements of the respondent's submissions may be summarised as follows: (1) the appellant clearly disagrees with his Honour's assessment as to the seriousness of the conduct and his Honour's findings of fact about the appellant's conduct, but mere disagreement does not warrant appellate intervention: see Toshack v Commissioner of Police [2009] NSWIRComm 31; Austin v NF Importers [2005] NSWIRComm 136 (2005) 146 IR 113 at [5]; (2) his Honour did not ignore evidence from the appellant which showed that he recognised his wrong doing and was remorseful for his actions. The submissions made on behalf of the appellant about how his evidence about his conduct should be characterised or interpreted were not accepted by his Honour; (3) the appellant incorrectly asserts that the reason for the employment termination was the filing of certain documents with this Commission. The appellant then asserts, in stark contradiction to the assertion immediately prior that there were additional reasons for the termination of the employment relationship. Clearly there were a number of reasons why the respondent determined the employment relationship should end. His Honour included those reasons within the body of his judgment; (4) the respondent agrees that his Honour did not adopt the language of the statute in dismissing the appellant's application. The respondent submits however that his Honour did give the necessary consideration to these matters as required by the statute. It is clear from the judgment that his Honour was satisfied, as he was entitled to be from the evidence before him, that the appellant had engaged in misconduct and that his actions were sufficiently serious as to warrant dismissal; (5) whilst it is not conceded that his Honour did not give appropriate consideration to the issue of harshness a further examination of the matters advanced by the appellant as mitigating his conduct clearly shows that although the appellant may have been regarded as a competent and diligent worker, he had, in 2006, previously demonstrated an unwillingness to accept reasonable directions from his supervisors (including the Director General of the Department) and was on notice that this conduct may be taken into consideration in the event of any further disciplinary action; (6) at no time has the appellant expressed any comment that might be construed as either a statement of remorse or regret for his actions; (7) the assertion that a "proper consideration" of Mr Raeburne's length of service and previous good work history would have resulted in a different outcome is not supported by the evidence that was before his Honour; (8) it was asserted that his Honour should not have relied upon the evidence of Ms Phillips. The primary basis for this submission was the following passage of cross-examination: Q: When you asked him questions he answered them, correct? A: Yes. Q: When you asked him questions and he answered them, he was communicating with you, wasn't he? A: In a way, yes. The difficulty with this submission is that it was never alleged that the appellant did not communicate at all with Ms Phillips, rather the communication problem identified by the respondent related to the resolution of the matters the appellant raised in his email, i.e. his absolute refusal to meet with his supervisors, Ms Phillips and Ms Hogan, to resolve the purported problems.

Consideration 41The termination of Mr Raeburne's employment was governed by the provisions of the Public Sector Employment and Management Act 2002. Section 46 of that Act obliged the Director General to deal with the allegations of misconduct made against the appellant in accordance with the statutory scheme. Misconduct is defined in s 43 as follows: (1) For the purposes of this Part, misconduct includes, but is not limited to, any of the following: (a) a contravention of any provision of this Act or the regulations, (b) performance of duties in such a manner as to justify the taking of disciplinary action, (c) taking any detrimental action (within the meaning of the Protected Disclosures Act 1994 ) against a person that is substantially in reprisal for the person making a protected disclosure within the meaning of that Act, (d) taking any action against another officer that is substantially in reprisal for an internal disclosure made by that officer. 42In accordance with s 46(1) the Director General had to: (a) decide to deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, or (b) decide that it is appropriate to take remedial action with respect to the officer. 43Having decided to deal with the allegations as a disciplinary matter, in accordance with the applicable procedural guidelines, the Director General appointed an independent investigator, Ms Klaassen, who conducted an investigation and later reported what she had found. 44Having received the investigator's report, in accordance with s 46(2), if the Director General, is "of the opinion that the officer has engaged in any misconduct", was entitled to "decide to take disciplinary action with respect to the officer." What disciplinary action could be taken was also prescribed, the term being defined in s 42 as: disciplinary action , in relation to an officer, means any one or more of the following: (a) dismissal from the Public Service, (b) directing the officer to resign, or to be allowed to resign, from the Public Service within a specified time, (c) if the officer is on probation-annulment of the officer's appointment, (d) except in the case of a senior executive officer-reduction of the officer's salary or demotion to a lower position in the Public Service, (e) the imposition of a fine, (f) a caution or reprimand. 45The Director General found that the appellant was guilty of "serious and wilful misconduct". In the context of termination of employment, that phrase is most often associated with conduct warranting summary dismissal. That is to say, the conduct was so reprehensible as to justify instant dismissal without notice. 46Although there was no evidence that the appellant was summarily dismissed, it would appear that it was not open to the Department to effect such a termination, in any event, under the Public Sector Employment and Management Act : see Director of Public Employment by his Agent Director-General of Dept of Juvenile Justice v Public Service Association (on behalf of Brown) [2008] NSWIRComm 221; (2008) 184 IR 134. 47Although we assume the appellant was not summarily dismissed because the statute does not provide for such dismissal, it is apparent that the Department viewed his misconduct as being of the most serious kind given that it attracted the most severe of the sanctions available under the Public Sector Employment and Management Act, namely , dismissal from the Public Service . 48Ultimately, the question to be determined on appeal is whether Grayson DP erred in finding that the dismissal of the appellant was not harsh, unjust or unreasonable. 49There is no doubt on the evidence that Mr Raeburne misconducted himself. He was clearly not justified in taking it upon himself to access Departmental files containing personal information of Victims Services' clients for the wrongful purpose of using that information to file a "defence" in the Commission to allegations made against him in the report of Ms Hogan. It was a breach of clients' confidentiality and the instruments we earlier identified. It was also unnecessary and futile for him to have done so given that there was no further disciplinary action contemplated against the appellant by the Department, where Ms Phillips had taken a transfer out of Victims Services and where he was aware that the Commission had concluded the proceedings. 50However, there are considerations that tend to mitigate the seriousness of Mr Raeburne's conduct. First, he made no attempt to keep his action in filing the confidential material secret from the Department. He provided the Department with a copy at the time it was filed. This indicated that he perceived that his actions were consistent with ongoing proceedings before the Commission. Secondly, despite the conclusion of the proceedings by Sams DP, a matter objected to by the appellant, Mr Raeburne was of the belief that the matter was open and he could, therefore, agitate the issue of his conduct towards Ms Phillips, if that became a live issue, at some later time. This view was most likely well based, as there did not appear to be a valid discontinuance of the proceedings. Thirdly, the publication of the information was not to the world at large, but rather it was an addition to a file held by the Industrial Registrar to which access by non-parties was only by leave of the Commission: see r 12 of the Industrial Relations Commission Rules 1996. Four, there was some indication of contrition by Mr Raeburne in saying he would not do it again, although our view is that his expression of remorse was only faint. 51The other aspect of Mr Raeburne's conduct, which figured prominently in the Director General's decision to terminate the appellant's employment, was his treatment of Ms Phillips. The appellant's conduct and behaviour towards Ms Phillips was inappropriate and contrary to his obligations to treat fellow employees with dignity and respect, although in light of the evidence of Ms Phillips under cross-examination, his conduct may be regarded as less serious than the findings of Ms Klaassen suggested. We also note in relation to Ms Klaassen's findings that: on 27 February 2009, the appellant failed to comply with a supervisor's direction to desist doing work he was performing and do other work instead; on the same day he took a half day's leave without notifying his supervisor; and in late February failed to obey a direction from his supervisor, Ms Petilla, to print off some reports, there was no evidence about these matters. We, therefore, have not had regard to these allegations. 52Nevertheless, the appellant's failure to sensibly and voluntarily participate in the internal processes involving meetings to resolve differences between employees was unreasonable in the circumstances, as was his filing of the application in the Industrial Relations Commission ( IRC 2008/854) alleging threatened dismissal in circumstances where it could not reasonably be thought a threat existed. The appellant's treatment of Ms Phillips and his avoidance of meetings designed to resolve issues was similar to the episode of his 2005 conduct. 53Whilst Mr Raeburne's conduct towards his supervisor is to be deplored and undoubtedly should have attracted appropriate sanction, of itself it did not warrant the label of serious and wilful misconduct justifying dismissal. Implicitly, the Department accepted this by its action in refraining from moving against Mr Raeburne following the discontinuance of the proceedings in September 2008. The trigger that eventually led to the appellant's dismissal was provided by Mr Raeburne's later action in filing the confidential material with the Industrial Registrar. Only then did the Department investigate the appellant's conduct towards Ms Phillips, such conduct constituting grounds relied upon by the Department for dismissal. 54In relation to the appellant's conduct towards Ms Phillips, Grayson DP excused the fact that the Department did not take action against him following the discontinuance in September 2008 on the basis of " the difficulty in getting him to engage in the process of grievance resolution and secondly, given that the matter de-escalated upon his secondment to the Consumer Trader and Tenancy Tribunal on 15 September 2008". 55If his conduct towards Ms Phillips was so serious as to justify dismissal the fact that it was difficult to engage the appellant in the process of grievance resolution and that he had been seconded is no basis to simply ignore the problem. It was always open to the Department to direct remedial action in the form of a performance improvement plan or counselling. Alternatively, in light of the appellant's conduct in 2005 involving Ms Waeyenberghe, it was open to the Department to investigate the matter and apply a sanction available to it under the Act, short of dismissal. 56As for the secondment, it was, as the appellant submitted, an "out of sight, out of mind approach". But if that was an appropriate response to the appellant's misconduct towards Ms Phillips following the discontinuance, one might ask why was it not an appropriate response in late 2008/early 2009 in circumstances where Ms Phillips had been seconded out of the Department. There are, no doubt, practical human resource or managerial issues at play here, but the steps taken were not appropriate if the conduct was, in truth, to be treated as misconduct, per se . 57We accept that the appellant's conduct in obtaining and filing in the Registry confidential information about the Victims Services Unit's clients constituted misconduct. As the appellant submitted, however, even if misconduct is made out there is still a duty upon the Commission to consider whether the punishment meted out, dismissal, is appropriate in all the circumstances: see Metropolitan Meat Industry Board v Australasian Meat Industry Employees Union (NSW Branch) [1973] AR (NSW) 231 at 233. 58For the reasons we earlier stated, there were matters that were required to be taken into account in mitigation. His Honour did not do so. His Honour did not undertake a proper analysis of the competing considerations we have addressed in the preceding paragraphs. If his Honour had done so it would have been evident to him that there were mitigating factors in the appellant's favour and that further analysis was required in light of the doubt that would have been created about the correctness of the decision to dismiss. 59That further analysis, which was not undertaken by his Honour, should properly have had regard to the employment relationship as a whole, including the employee's length of service, standards of prior conduct and his application to his work . It would also have taken into account the appellant's age, the stigma of having been dismissed from the Public Service for "serious and wilful misconduct" and the consequent difficulty the appellant would encounter in finding new employment. 60The appellant had been employed in the Public Service for 28 years, the greater part of his working life. Except for the incident involving Ms Waeyenberghe in 2005, the appellant had not come under adverse notice until the events of 2008. There is no evidence that he performed his work other than diligently. He is 52 years old. None of these matters were identified as factors to be taken into account in his Honour's decision. 61On a proper balancing of these factors, a conclusion should have been reached that the appellant's dismissal was harsh and unreasonable. That must result in the appeal being upheld and for this Full Bench to make a finding that the dismissal of the appellant was harsh and unreasonable. There remains, however, the question of what, if any, remedy should be granted in the circumstances of this matter.

Remedy 62Reinstatement is the primary remedy. It is only where it is impracticable to reinstate an applicant that the other remedies available under s 89 of the Act may be applied: see Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212 at [88]; Plummer v Stannard Bros Launch Service Pty Ltd [2005] NSWIRComm 301; (2005) 145 IR 111 at [115]; Riley v Workcover Authority (NSW) [2006] NSWIRComm 108; (2006) 151 IR 396 at [94]; Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 at [105]. 63In Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 it was held that the purpose of a reinstatement order is to ensure that the employee in question is placed in the status quo ante. Re-employment may be ordered if reinstatement is impracticable. If neither reinstatement nor re-employment is practicable, the Commission may order compensation: s 89(5) of the Act. 64Whilst Mr Raeburne's years of service, age and record weigh heavily in favour of reinstatement or re-employment, there are countervailing considerations against ordering either remedy. 65First, there are the privacy implications of Mr Raeburne's misconduct. As a public servant he seriously and knowingly breached client confidentiality for his own private purposes in circumstances where it was completely unjustified. He sought to avoid the Registrar's refusal to accept the confidential material by requesting Registry staff to refrain from advising the Registrar of what he was doing. Such deceitful conduct has added to our lack of confidence in reinstatement or re-employment in the Public Service being appropriate remedies. His token expression of contrition in his somewhat ambiguous statement that he would not do it again, also lessens our confidence in the appropriateness of reinstatement or re-employment. 66Secondly, Mr Raeburne's actions suggest some sort of obsession regarding Ms Phillips and the Department's treatment of him. Nothing put by him suggests that has altered. There has been no expression of regret or remorse by the appellant for his unacceptable conduct towards Ms Phillips and our concern is that there remains the possibility that the conduct may be repeated towards another supervisor if Mr Raeburne was to be returned to employment in the Public Service. 67We note that one of the options available to deal with misconduct under s 42 of the Public Sector Employment and Management Act is that an officer may be directed to resign, or to be allowed to resign, from the Public Service within a specified time. That, in our opinion, is the appropriate course that should have been taken in this case. However, we are precluded from ordering such a course: Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47. 68Ultimately, it is a matter of fine judgment whether Mr Raeburne should continue to be employed in the Public Service or not. On balance, we have decided to order compensation pursuant to s 89(5) of the Act . 69In the light of the errors we have identified at first instance and the public interest in correcting those errors, it follows that leave to appeal should be granted.

Orders 70The Full Bench makes the following orders: (1) Leave to appeal is granted. (2) The appeal is upheld. (3) The Department is to pay to the appellant an amount of compensation equal to six months' remuneration at the salary applicable to the appellant's grade immediately before the appellant was dismissed.

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: 21 April 2011

Raeburne v Department of Justice and Attorney General

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