Shonit Kumar Danwer v Corrective Services NSW

The matters in contest 33Mr Ryan, solicitor for the applicant, very properly did not attempt to go behind the facts found by the Local and District Courts and the fact of the conviction. 34Nor was any challenge made to the procedural fairness afforded to Mr Danwer in the steps taken in the termination of employment. 35The applicant's case focussed on the proposition advanced by Mr Grant that Mr Danwer's conduct, particularly his lack of insight into his own offending conduct exemplified by his repeated denials of guilt and of the conduct itself, was incompatible with his duty as an employee largely because of his responsibilities, as a Correctional Officer, to work with offenders to assist them to develop insights into their own offending behaviour, this being the factor to which Mr Grant said he gave 'a lot of weight' in deciding that Mr Danwer should be dismissed. 36In turn that attack was mounted essentially on the proposition that it was the Metropolitan Remand Centre at which Mr Danwer was employed, and that there was no requirement for Correctional Officers to be involved in 'case management' of remand prisoners, as opposed to sentenced prisoners. The applicant's argument was that, that being so, it followed that the consideration that had on Mr Grant's own account been given 'a lot of weight' , that is, Mr Danwer's claimed repeated denials of his conduct and his guilt, did not in fact go to 'a core part of his duties' as Mr Grant had determined that it did. Inferentially, the decision to terminate was on that basis wrong. 37A secondary line of the applicant's argument, but one which was nevertheless pressed with vigour, was that there were jobs in the Remand Centre in which a Correctional Officer did not have to have any conversations with, or make reports on, prisoners, so that once again the matter which had been given 'a lot of weight' by Mr Grant was not in fact a proper consideration in the weighing of the decision whether or not to terminate, and inferentially again, so far as that matter was given a lot of weight the decision to terminate was wrong. 38I understood that this line of argument also went to the availability of reinstatement as a remedy. 39In this context it was put by the applicant that there were jobs on some shifts that did not involve interactions with prisoners of the sort Mr Grant was referring to. 40In cross-examination Mr Grant readily conceded that it was not appropriate for Correctional Officers to discuss with remand prisoners, as opposed to sentenced prisoners, their guilt or innocence or the nature of their offending conduct. He maintained however that a Correctional Officer might even so be involved in 'case management' of a remand prisoner by for example making notes n the record which would go to determining, for instance, the prisoner's classification. 41Mr Grant further gave evidence that the Remand Centre contained, despite its name, a mix of prisoners, both remandees and sentenced prisoners. Having refreshed his memory from another source he gave evidence that the proportion of remand to sentenced prisoners was 75% to 25%. He also said that remand prisoners were spread across essentially all correctional institutions in NSW. 42He gave further evidence that, in particular as a result of recent recommendations from the Independent Committee Against Corruption, Correctional Officers were rotated on shifts so as not to stay in one position or location too long. 43Mr Grant maintained, in the face of vigorous cross-examination, including it being put flatly to him that this statement was untrue, that a Correctional Officer at the Remand Centre would necessarily be involved in his regular duties in the sort of interactions with prisoners that he had determined Mr Danwer to be unsuitable to carry out. 44Although this was the general thrust of the questioning, it was not squarely put to Mr Grant in terms that there were Correctional Officer positions with Corrective Services NSW, either at the Remand Centre or elsewhere, that could be occupied without the officer having at any time to undertake the interactions referred to by Mr Grant. 45The applicant also submitted that the language of s.48 of the PSEM Act is permissive, not mandatory; the delegate 'may', not 'must', impose a disciplinary sanction. Again, there was no contest from the respondent that the imposition of a disciplinary sanction under the PSMA is discretionary, and I accept that this is the case.. 46The respondent's case was essentially predicated on Mr Grant's evidence. Mr Grant went to some pains to emphasise that the role of a Correctional Officer has changed very substantially in the last fifteen years. He gave evidence that a Correctional Officer is no longer merely a 'turnkey' but has an active and positive role in the correctional system as a motivational model for offenders, a model of 'prosocial' behaviour and as a source of guidance and assistance to offenders in understanding their own conduct and accepting responsibility for it. He gave this evidence initially at paragraph 25 of his statement and elaborated on it, to the same end, in his oral evidence. 47It was in this context, Mr Grant said, that he inquired into and formed a view about Mr Danwer's conduct. 48The respondent's case, so far as it went beyond Mr Grant's evidence as the decisionmaker, involved eliciting from Mr Danwer in cross-examination that he yet still believed he was not guilty of the conduct and the offence for which he was convicted. Mr Danwer also readily agreed that he had been afforded procedural fairness by the respondent. It was not in any event part of the applicant's case that he had not. 49As a secondary matter, the respondent sought to minimise the effect of the character references advanced to both the respondent and the Commission by Mr Danwer. The decision of the Full Bench of this Commission in Toshack v Commissioner of Police [2009] NSWIRComm 31 gives guidance as to the weight to be attached to character references and the purpose for which they may be given evidentiary weight. I return to this matter below. 50Credit was not, apart from one question put to Mr Grant suggesting that his evidence on a particular point was untrue, an issue in these proceedings. For completeness, however, I formed the view that both witnesses, Mr Danwer and Mr Grant, gave truthful evidence. Mr Danwer gave his evidence, some of which must necessarily have been uncomfortable to give, with a candid demeanour and it was consistent with what he had put on paper earlier. Mr Grant's evidence was consistent throughout and vigorous cross-examination did not elicit any inconsistency.

The applicable law 51This is an application pursuant to s.84 of the Act. The Commission is therefore to determine whether the dismissal was harsh, unreasonable or unjust. The Commission is to deal 'expressly and specifically with the tripartite statutory test': National Union of Workers, NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388; 146 IR 441. 52The meaning of the words 'harsh, unreasonable or unjust' has been determined in a long line of cases. It is not necessary to go beyond the ordinary meaning of the words. A dismissal may be harsh, or unjust, or unreasonable, or all three: Bankstown City Council v Paris (1999) 100 IR 363; if a dismissal is found to transgress one of those heads, it is proper that a specific finding to that effect be made. 53I note that In dismissing Mr Danwer from the Public Service, Mr Grant exercised powers under the PSEM Act. The validity of the exercise of those powers was not called into question. As I note above, this matter falls wholly within the boundaries of a s.84 application.

Consideration - application of facts to law 54There is no issue in this matter as to precisely what the initial conduct was that led to Mr Danwer's dismissal. This Commission necessarily accepts the determinations of the Local and District Courts that Mr Danwer committed an act of indecency toward a person over the age of 16 within the meaning of s.61N of the Crimes Act. The decision of an Australian court is, unless set aside or quashed, necessarily to be accepted as incontrovertibly correct: Rogers v R (1994) 181 CLR 251 at 273 per Deane and Gaudron JJ. 55It is to be recalled that this was conduct which was committed off-duty. 56The applicant advanced the decision of this Commission at first instance in Silling v Corrective Services NSW [2011] NSWIRComm 1056 as an encapsulation of the law on out-of-hours conduct. No issue was taken by the respondent that the tests in the cases cited in Silling, to which I turn below, are not the proper tests when considering the relevance of 'out of hours' or off-duty conduct in the context of disciplinary sanctions in employment. 57Indeed, the applicant urged the Commission to regard Silling as a model for dealing with dismissals of Correctional Officers with criminal convictions. In my view, however, this case is fundamentally different to Silling. In that matter, for example, there was no reasoning disclosed for the imposition of the sanction; here a carefully-reasoned chain of decisionmaking, at each step of which Mr Danwer was invited to be heard and was heard, is evident. I approach this case on its own merits and do not see that Silling or any other case can be applied as a template. 58As I note above, in considering whether this dismissal was harsh, unjust or unreasonable, it is to be borne in mind that the conduct which led to Mr Danwer's conviction was off-duty. The circumstances in which out-of-hours conduct can be held to justify the termination of an employee's employment are limited: Rose v Telstra Corporation Limited Print Q9292, 4 December 1998, cited with approval in NSW Attorney-General's Department v Miller [2007] NSWIRComm 33 at [52]. Not only is the employer obliged to demonstrate that the conduct could relevantly be considered in the context of employment, but the conduct complained of must be of such gravity or importance as to indicate an objection or repudiation of the employment contract by the employee. 59:It was not submitted by the applicant that the off-duty conduct was not conduct to which the respondent was entitled to have regard in considering a disciplinary sanction. Indeed, it was effectively conceded that the respondent was entitled to examine that conduct at the very least to form a view as to whether it was conduct 'incompatible with the employee's duty as an employee'. In my view that approach was correct; Mr Danwer's conduct for which he was convicted was conduct to which the respondent was entitled to have regard, and so was the fact of his conviction. 60Having said that, the test is still whether the conduct was such as to indicate an objection or repudiation of the employment contract by the employee. True it is that s.48 of the PSEM Act provides for the taking of disciplinary or remedial action in relation to an employee who has been convicted of a serious offence. That statutory provision does not, however, affect or detract from the test that the Commission is required to apply to the dismissal, that is, whether it was harsh, unreasonable or unjust, and the jurisprudence of the Commission developed in relation to that test: Public Employment Office, Department of Attorney General and Justice v Silling [2012] NSWIRComm 118 at [42]. 61In my view it could not be said that Mr Danwer's conduct for which he was convicted was such as to indicate an objection or repudiation of the employment contract by the employee. Mr Danwer's conduct was reprehensible in a social and public sense. It did not however in my view demonstrate an intention to repudiate the contract of employment; nor was it of itself conduct so as to of itself terminate the contract. 62However, it is important to note that on Mr Grant's evidence, which was not put in contest on this point, and which is corroborated by the transcript of the interview with Mr Danwer and the correspondence he wrote during the process of considering disciplinary sanctions on Mr Danwer, he did not decide to impose the sanction of dismissal on Mr Danwer simply because Mr Danwer had been convicted of the criminal offence, or simply because of the conduct comprising the offence. Indeed, he stated - and was not challenged on this - that his purpose in considering disciplinary sanctions was not to punish Mr Danwer more for his offence, but to determine his fitness for continued employment. (Statement, paragraph 19) 63Mr Grant emphasised that the factor which carried 'a lot of weight' in his reasoning was that Mr Danwer did not accept his own wrongdoing, and appeared rather to be 'in denial', again to use Mr Grant's words, about his own wrongdoing. It was this that, as I understand the evidence, essentially determined the outcome; Mr Grant formed a view that Mr Danwer's unpreparedness to recognise or accept his own wrongdoing was what made him unfit for his duties, given the particular responsibilities of a Correctional Officer referred to above. 64That unpreparedness to recognise or accept his wrongdoing was conduct that Mr Danwer adopted in the course of Mr Grant's inquiry, that is, in the context of the ongoing employment relationship. It therefore went beyond the simple fact of the conviction and the conduct for which he was convicted. 65That conduct was not only, as the respondent submitted, manifested in terms in Mr Danwer's letter of 21 November to Mr Grant, in which he stated specifically "I have adjusted myself in the public place without ever realising that it could be offensive to others' , a statement at odds with the finding of two courts, but also maintained by Mr Danwer when giving oral evidence in the proceedings. 66It is apparent, given the conclusion that I have expressed above about the relevance to the employment relationship of the off-duty conduct itself, that in considering whether the dismissal of Mr Danwer was or was not harsh, unjust or unreasonable, the Commission must have regard to the essential reason for the dismissal. That was, on the respondent's case, its assessment of the effect of Mr Danwer's ongoing apparent denial of his guilt for the matter for which he was convicted upon the employment relationship, given the particular duties and responsibilities of his position. That was the matter to which Mr Grant gave 'a lot of weight' in determining to dismiss Mr Danwer. 67Having had regard to the essential reason for the dismissal I have come to the view that the dismissal was harsh. 68Given Mr Grant's evidence, it was not unreasonable that he actively consider dismissing Mr Danwer given Mr Danwer's ongoing unpreparedness to come to terms with his conduct; it was not, in the sense that this Commission has applied the term, unjust to consider dismissal, but the imposition of the ultimate sanction of dismissal was harsh. 69It was harsh because, while Mr Grant's concerns about Mr Danwer's attitude were legitimate and I accept that he sought to act solely in the proper interests of the Service, I am not satisfied that Mr Danwer's attitude to the conviction properly imposed on him for his off -duty conduct, which was the essential element of the reasoning in the decision to dismiss, was an attitude such as to warrant the view that it was incompatible with his duties as an employee, particularly as an employee of relatively junior rank, and such as to warrant the termination of employment of an employee with a nine-year unblemished employment record. 70Mr Grant was not wrong to have regard to Mr Danwer's attitude to his conduct and conviction in assessing the sanction to be imposed. I accept what Mr Grant said in evidence about the general role and responsibilities of a Correctional Officer. I accept his evidence that a Correctional Officer at the Remand Centre and in other institutions would have interactions of the kind he described with prisoners. 71Having said that, there was little evidence of Mr Danwer himself ever having had to carry out those interactions, and in the context of his obligation to be a role model Mr Danwer is of relatively junior rank. Mr Grant was not able to give any evidence about the precise duties carried out by Mr Danwer. He readily agreed in cross-examination that he was not aware of the precise operational arrangements within the Remand Centre. His concern was on the basis of the role and duties to be undertaken by all Correctional Services Officers. 72While I accept that Mr Danwer's attitude to his conduct and conviction was a matter that Mr Grant could relevantly take into account in his decision on sanction, I am not on balance satisfied, on the particular facts of this case, that Mr Danwer's attitude was such as to be incompatible with his duties as an employee, and for that reason I find the ultimate sanction of dismissal harsh. The dismissal therefore falls within the category of dismissals contemplated by s.84 of the Act. 73Having so found I turn to the question of remedy. 74Reinstatement is the primary remedy provided by the Act and the Commission ought not turn aside from that remedy, if a dismissal has been found to be harsh, unjust or unreasonable, unless the remedy of reinstatement in the applicant's former position is impracticable: Act, ss.89(1), 89(2); Director-General, NSW Department of Health v Industrial Relations Commission of NSW [2010] NSWCA 47. 75It follows from what I have said above about the termination that I do not accept that reinstatement in the former position is impracticable. That is essentially because no other basis has been advanced on which Mr Danwer might not carry out his duties save the attitude he holds to his conviction, and I have found that insufficient to deprive him of his employment. I propose to make an Order reinstating Mr Danwer in his employment. 76I have had regard to, but given very small weight to, the character references provided on Mr Danwer's behalf in this context. I gave them no weight at all in considering whether the dismissal was harsh, unjust or unreasonable, but in considering remedy I gave them a slight weight as showing that on the face of it there are a number of work colleagues who are not ill-disposed to Mr Danwer despite knowing about his offence, while on the other hand no evidence was advanced to demonstrate that he would not be accepted back into the workforce. That is all, however. 77I have held that the dismissal was harsh. That does not mean Mr Danwer is without fault in this matter. He has without question conducted himself in a manner that brings him discredit and inferentially the Corrective Service discredit. It was proper in my view that the Service suspend him with, and later without, pay during its investigation. I note that a challenge to the decision to suspend without pay was brought by Mr Danwer and dismissed by this Commission: Danwer v Corrective Services NSW [2012] NSWIRComm 1024. 78In the circumstances, while I will order pursuant so s.89(1) that Mr Danwer be reinstated to his former position from the commencement of the first pay period on or after date of this decision, and I will order pursuant to s.89(3) that his period of employment with the respondent be taken not to have been broken by the termination, I do not interfere with the suspension without pay imposed on Mr Danwer and I make no order concerning remuneration pursuant to s.89(3) of the Act. 79For completeness I deal with one other matter. On 4 February 2013, pursuant to an Order made by the Commission that the parties advise the Commission of any further issues in the matter, a Notice of Issue was filed by the applicant. It questioned whether the power to dismiss pursuant to s.48 of the PSEM Act had been delegated to Mr Grant by the Director-General of the respondent. At the commencement of proceedings I was informed by Mr Ryan for the applicant that the issue was no longer pressed. The question formed no part of the subsequent proceedings and I do not need to determine it. 80Lastly, I deal with the document that formed Exhibit Restricted R3. I direct that the applicant return all copies of that document, including draft copies and copies electronically held, to the respondent, or in default of so doing that the applicant provide to the respondent a certificate executed by Mr Ryan to the effect that all copies, including electronic copies, of that document in the applicant's possession, custody or control have been destroyed.

Orders 81The Commission makes the following Orders:

1. The applicant, Mr Shonit Kumar Danwer, is reinstated to his former position of Corrective Services Officer at the Metropolitan Remand Centre with effect from the commencement of the first pay period on or after today's date.
2. The applicant's period of service shall be treated as not having been broken by his dismissal. For want of any doubt, the applicant shall be treated for the purpose of calculating entitlements as having been suspended without pay, less any periods for which he utilised accrued paid leave, from 24 April 2012 until the date he resumes work.
3. No Order is made in relation to remuneration pursuant to s.89(3) of the Act.
4. These Orders take effect on and from the date of this decision. PETER NEWALL Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 May 2013