Shonit Kumar Danwer v Corrective Services NSW

DECISION 1This is an application pursuant to s.84 of the Industrial Relations Act 1996 ('the Act') brought by Mr Shonit Kumar Danwer. It is brought in relation to Mr Danwer's dismissal from his employment by Corrective Services NSW. The dismissal was effected on 23 November 2012. 2Mr Danwer seeks reinstatement to his former position. 3Conciliation conducted before another member of the Commission on 14 January 2013 was unsuccessful and the matter was heard on 21 May 2013.

Background 4The evidence going to Mr Danwer's employment with the respondent, of the events leading to the termination, and of the steps taken by the decisionmaker in effecting the termination, was advanced almost wholly without contest. 5The evidence of those matters is largely set out in two statements tendered in the proceedings: a statement made on 4 February 2013 by Mr Danwer, which was admitted without objection, and a statement made on 25 February 2013 by Mr Luke Grant, at that time Assistant Commissioner, Strategic Policy and Planing for the respondent and the decisionmaker on the termination of Mr Danwer's employment, also admitted without objection. 6It was common ground on the evidence that Mr Danwer was employed by Corrective Services NSW and its predecessors from 2 April 2002 to 23 November 2013. At the date of his dismissal he held the rank of Correctional Services Officer 1 and was employed at the Metropolitan Remand Centre. It was put in evidence by Mr Danwer and not contested that he had established an unblemished work record over that time and had received various commendations. 7It was also common ground that Mr Danwer was on 23 April 2012 convicted at Hornsby Local Court of an offence under s.61N(2) of the Crimes Act 1900, viz, an offence of indecency towards a person over the age of 16 years. Mr Danwer had pleaded not guilty to the offence. 8Mr Danwer was fined and placed on a bond. 9Mr Danwer appealed the conviction and the sentence to the District Court. On 20 September 2012 the District Court (Colefax J) dismissed the appeal and confirmed the conviction. The Court maintained the fine imposed but varied a part of the sentence going to a bond for jurisdictional reasons. 10In both proceedings Mr Danwer challenged the veracity of the Crown witness, a police officer. In both courts the evidence of the police officer was accepted. 11The sequence of events following Mr Danwer's conviction were also the subject of almost wholly uncontested evidence. 12Following his conviction on 23 April 2012, Mr Danwer was on 24 April 2012 suspended from duty without pay by the respondent. 13On 30 September 2012, shortly following the determination of his appeal in the District Court, Mr Danwer received a letter from the respondent dated 26 September 2012. That letter, which was signed by Mr Grant, advised Mr Danwer that the respondent was in possession of the materials from the Local Court, including transcripts (although not the transcript of the District Court proceedings nor the judgment therein) and had formed the view that s.48 of the Public Sector Employment and Management Act 2002 ('the PSEM Act') applied. Mr Grant advised Mr Danwer that he was considering imposing disciplinary action, one of the 8 possible disciplinary actions being considered being dismissal. 14The letter went on to invite Mr Danwer to make a submission and provide any additional information he wished to advance, and also advised that Mr Danwer could have an interview with Mr Grant if he wished. 15Mr Danwer responded by letter on 18 October 2012. In that letter he advanced as matters for consideration that he had no prior convictions of any kind, that he had an unblemished work record, and that he was a person of good character in the wider community, in support of which he advanced a number of character references, including from the Chief Priest of the Shree Swami Narayan Temple and the Australian Sikh Association, both of which spoke of his good character and dedication in religious matters, and from friends and fellow officers. 16Mr Danwer also referred to his family circumstances and to the fact that the likely effect of dismissal would be loss of the family home and hardship for his family. He expressed himself prepared to accept a fine or demotion. 17In the same letter he stated 'I maintain that I did not expose my penis to Constable Gosbee but I accept the decision of the Court.' 18On 19 October 2012 Mr Danwer participated in an interview with Mr Grant. Mr Danwer in his oral evidence stated that in that interview he was very nervous and stressed to be interviewed by a high-ranking officer and he believed after the interview that, because of this nervousness, he had not said all that he ought to have said in his defence. 19A transcript of the interview was in evidence. Its accuracy was not challenged. It discloses that Mr Grant expressed concern on several occasions that Mr Danwer was maintaining that he was not guilty of the offence. Mr Grant in relation to this matter used the term 'denial' which he repeated in his statement of evidence (paragraphs 19 and 20). Mr Grant also asked Mr Danwer if he had seen a psychologist or a counsellor about the matter; Mr Danwer answered that he had undertaken some sessions through the Employee Assistance Programme. 20Mr Danwer for his part stated that the District Court's withdrawal of the bond indicated that he was unlikely to offend again, emphasised that the testimonials he had from work colleagues supported his view that he could return to work without difficulty and placed significant emphasis on his family situation, his mortgage and the expenses associated with preparing his son to attend university. 21On 23 October 2012 Mr Danwer provided a report from Dr Tony Robinson, a clinical psychologist. The report indicated that Mr Danwer had undergone ten sessions of focussed psychosexual treatment . Dr Robinson stated that in his view Mr Danwer now understood that his actions were offensive and that he understood how conduct of this sort could impact on its victims. 22Together with that report Mr Danwer provided character references from about 30 work colleagues, each of whom stated that he or she was aware of the offence but regarded Mr Danwer as being a decent person of good moral character. One of the signatories, at least, held the rank of Assistant Superintendent. 23Following the interview and receipt of Dr Robinson's report and the testimonials, Mr Grant again wrote to Mr Danwer, the letter being dated 6 November 2012. He offered Mr Danwer the opportunity to provide a further written submission to assist him in 'clarifying your position in terms of what you have done or propose to do in addressing your offending behaviour'. In particular, Mr Danwer was invited to address whether he saw any risks his behaviour might pose in terms of future relapses. 24On 21 November 2012 Mr Danwer wrote again to Mr Grant. He emphasised that the Local Court magistrate had held 'I find after this matter that he was probably unlikely to reoffend' and further, 'this is an aberration and I do not think any supervision in these circumstances is needed.' 25Mr Danwer said that he did not foresee any further risk in his behaviour - the question posed to him by Mr Grant in his letter of 6 November - and that he was willing to undergo more counselling sessions or any other treatment. He again stated that he would accept a fine or demotion.. 26Mr Danwer attached to that letter two reports from Dr Robinson to the referring general practitioner, Mr Danwer's family doctor, the first made after 6 sessions of treatment and the second made after 10 sessions. 27In the first report Dr Robinson expressed the following view: ''There is no evidence that Mr Danwer is suffering a psychosexual disorder (ie exhibitionism). It is my thought that if he was acting in an unusual way, it may be explained more by his hyperthyroidism condition that was undiagnosed at the time'. Dr Robinson also indicated that Mr Danwer 'maintains his innocence' in respect of the conviction. 28In the second report Dr Robinson says in terms of Mr Danwer 'he has always denied his convicted offence' although he goes on to say, as he later repeated in his letter to Mr Grant, that Mr Danwer 'has a good understanding of how exhibitionism can affect ...its victims." 29Dr Robinson was not required for any cross-examination. 30In his covering letter to Mr Grant, Mr Danwer began by stating ' I believe that I did not expose my penis to Constable Gosbee but I accept the decision of the court' and continued "I have adjusted myself in the public place without ever realising that it could be offensive to others' , and further 'Now I understand that my behaviour is not acceptable. I am very remorseful about it and now I am extremely careful of my conduct.' 31Mr Grant said (Statement, paragraph 24) that having given careful consideration to all the material provided, he decided that Mr Danwer should be dismissed from the Public Service. In the list of materials to which Mr Grant said he had regard, he referred to Dr Robinson's letter of 23 October 2012 but not to the two reports attached to Mr Danwer's letter of 21 November, although he referred to that letter. Although he was not challenged on his statement that he gave 'all the material' careful consideration, the Commission was left without knowing with certainty if that included Dr Robinson's two reports to Mr Danwer's treating family doctor. 32Mr Grant went on to say (Statement, paragraph 25) as follows: 'In reaching my decision I placed a lot of weight on the fact that the Applicant, in his employment as a Correctional Officer, would routinely be required to undertake case management duties. An important component of this is working individually with offenders to assist them to develop insights into their offending behaviour and to take personal responsibility for their circumstances. The Applicant's lack of insight into his own offending behaviour and his persistent attempts to minimise the serious implications of his behaviour make him unsuitable for executing a core part of his duties. In the contemporary correctional environment, where reducing re-offending is a key government target, a Correctional Officer is more than a turnkey and is expected at the minimum to model prosocial behaviour and motivate offenders to change. The Applicant's conduct, particularly his failure to take full responsibility for his behaviour, is incompatible with his duty as an employee'.