Tohi v Department of Communities and Justice [2026] NSWIRComm 1028

1. Further to the agreed facts listed above, the following facts are relevant to the Commissions consideration.
2. Shortly after commencement of employment, the applicant undertook an induction training course in Sydney which took 5 or 6 weeks.
3. The applicant worked in the Newcastle Hub which is one of six hubs in the Hunter North Region of the respondent's operations. The Newcastle Hub has responsibilities for twelve courts (plus NCAT), including courts at Toronto, Belmont, Raymond Terrace, Maitland, Cessnock, Singleton, Muswellbrook and Broadmeadow.
4. The applicant would rotate around locations within the Newcastle Hub each month, working on average one week at the Newcastle courthouse and then other court houses within the Hub, usually working two to three weeks per month at the Toronto courthouse.
5. Whilst working at Toronto and other court houses apart from Newcastle, there would usually be only two Sherriff Officers rostered to work on any one day.

1. The misconduct for which the applicant was dismissed from his employment was a result of following seven sustained findings:

"1. It is alleged that between 13th January 2025 and 7th February 2025, as timestamped on CCTV surveillance as per the attached schedule, at Toronto Court, you acted unprofessionally and neglected your duties on approximately 50 occasions when you did not undertake any security or screening checks of people entering the building. You allowed those people to enter the Court without you having completed the necessary checks.

By your alleged actions and inactions, you may have breached the DCJ Code of Ethical Conduct section 6: Principles of professional behaviour.

2. It is alleged that between 13th January 2025 and 7th February 2025 as timestamped on CCTV surveillance in the attached schedule, at Toronto Court, you acted unprofessionally and neglected your duties on approximately 35 occasions when you did not undertake a wand search and security checks on people who set off the Walk-Through Metal Detector. You allowed those people to enter the Court without you having completed the necessary checks.

By your alleged actions and inactions, you may have breached the DCJ Code of Ethical Conduct section 6: Principles of professional behaviour.

3. It is alleged that between 13th January 2025 and 7th February 2025 timestamped on CCTV surveillance in the attached schedule, at Toronto Court, you acted unprofessionally and neglected your duties at the scanning/screening area, on approximately 39 occasions, by using your mobile phone.

By your alleged actions and inactions, you may have breached the DCJ Code of Ethical Conduct section 6: Principles of professional behaviour.

4. It is alleged that on 3rd February 2025 timestamped on CCTV surveillance in the attached schedule, at Toronto Court, you acted unprofessionally and neglected your duties when you closed the security checking point at 2.47pm while the Court remained operating until 3.40pm.

By your alleged actions and inactions, you may have breached the DCJ Code of Ethical Conduct section 6: Principles of professional behaviour.

5. It is alleged that on 7th February 2025 timestamped on CCTV surveillance in the attached schedule, at Toronto Court, you acted unprofessionally and neglected your duties when you closed the security checking point at 2.23pm while the Court remained operating until 3.50pm.

By your alleged actions and inactions, you may have breached the DCJ Code of Ethical Conduct section 6: Principles of professional behaviour.

6. It is alleged that between 20th December 2024 and 7th February 2025, timestamped on CCTV surveillance in the attached schedule, at Toronto court, you acted unprofessionally and dishonestly when you left your duties at the Court, and you recorded an inaccurate finish time on your flex sheets and gained approx. 5 hours and 17 minutes of flex time.

By your alleged actions and inactions, you may have breached the DCJ Code of Ethical Conduct section 6: Principles of professional behaviour.

7. It is alleged that by your actions and inactions as detailed in the allegations above you put at risk yourself, stakeholders, members of the public, judiciary, and your colleagues.

By your alleged actions and inactions, you may have breached the DCJ Code of Ethical Conduct section 6: Principles of professional behaviour.

By your alleged actions and inactions as detailed in the allegations above, you may have also breached Section 7 of the Government Sector Employment Act 2013 (GSE Act) in that you failed to uphold the Government Sector Core Values and Principles of Integrity and accountability as prescribed by the GSE Act."

1. The applicant in addition to his own statement in chief and in reply, relied upon statements from the following persons:

(1) Craig Hendrickse, former Officer-in-Charge, Newcastle Court.

(2) Bayden Jeanes, previous Officer in Charge, Newcastle Court.

(3) Jessie Boyd, House Manager at the applicant's secondary employment.

(4) Brooke Little, CEO of the applicant's secondary employer.

1. Each of the applicant's witnesses attested to their perception of the applicant as having a strong work ethic and generally being of good character and that having read the allegations were of the view that these were inconsistent with his character.
2. The applicant readily admitted the conduct in relation to allegations 1 and 2. He acknowledged that there had been instances where he permitted court staff, police, and lawyers to pass through without undergoing full security procedures, including screening, x-raying and wanding. Regarding other apparent failures to perform a secondary screening, the applicant stated that they if they occurred, they were unintentional and accepts full accountability.
3. In explaining his conduct in relation to allegations 1 and 2, the applicant claimed that his actions were "based on a long-standing, informal understanding regarding operational discretion". Although he admitted in cross-examination that his actions did not comply with formal policy, he had not properly understood, nor had he read the latest policies in relation to the screening of persons entering the Courts.
4. As to allegation 3, the applicant initially stated that while some of the calls were work related the level of mobile phone usage was inappropriate. In cross-examination after he was shown footage of his use of his mobile phone whilst he was positioned at the screening point, he conceded that he was not looking at work messages, rather he was looking at personal messages or scrolling.
5. In response to allegations 4 and 5, the applicant accepted responsibility and acknowledged that the checkpoint should have remained open until the end of the court session. In explaining his behaviour in relation to allegation 4, he stated in his letter of reply:

"At the time, based on my operational experience and judgment, I believed all key stakeholders had arrived and the risk level was minimal. These decisions were made based on my extensive experience in operational risk assessment and with consideration of the specific needs and flow of the court on that day."

1. He went on to say that he accepted that his behaviour did not align with accepted procedure and maintained this position in cross-examination.
2. In response to allegation 6, the applicant acknowledged this allegation with the "utmost seriousness". The applicant claimed that any errors, if any, were "unintentional and not made with dishonest intent". The applicant explained that flex time was not always entered immediately and on one occasion two weeks after the day in question.
3. He also alleged that the flex system involved a bit of "give and take" and in that context he did not claim an earlier start time of 8:15am on those occasions he commenced on duty before 8:30am.
4. In those circumstances a degree of give and take is appropriate, as reflected in Mr Tohi not claiming an earlier start time of 8:15am, notwithstanding that he commenced on duty before 8:30am on a number of occasions
5. The applicant stated that on occasions, he had been unable to take his mandatory 30-minute lunch break. As a result of the computer program, he was unable to record his hours with no lunch break and therefore added 30 minutes at the end of the day to his day.
6. The applicant gave evidence that he had been advised by Officer in Charge ("OIC") Craig Hendrickse and OIC Danny De La Pez to do this.
7. The applicant also offered to cooperate fully and, if necessary, rectify any overreported time.
8. In response to allegation 7, the applicant expressed "deep regret" if any of his actions, or inactions, created risk to court staff, the judiciary, or members of the public.
9. The respondent in support of its case relied on evidence from the following persons:

(1) Daniel De La Paz, Officer in Charge:

(2) Andrew Buteaux, Region Commander; and

(3) Tracey Hall, Sheriff.

1. Mr De La Paz, started in the Newcastle Hub in 2023 and he gave evidence about the culture that he observed, which included a great deal of complacency in recording of flex time and screening, solicitors being allowed to walk through without being screening, uniformed police weren't being asked for ID or putting their bags through the x-ray, and hand scanning wasn't being conducted in line with procedure and training.
2. Mr De La Plaz stated that in order to deal with this culture he undertook an exercise of reinforcing the policies and establishing local standard operating procedures ("SOPs") and discussing requirements at staff meetings and briefings, and sending emails to make sure the Sheriff's Officers could have no misunderstanding of requirements. However, in cross-examination Mr De La Plaz agreed that he had not spoken to the applicant in regard to these issues of complacency.
3. Finally, Mr De La Plaz denied speaking to the applicant regarding the adding of 30 minutes in the flex time sheet for missed lunch breaks as alleged by the applicant.
4. Mr Bateaux, in addition to setting out the relevant policies and procedures relevant to the allegations, provided a background to the investigation that led to the dismissal of the applicant. That evidence was that on 5 March 2025 a Sheriff's Officer at Newcastle Court had let a person enter the Court house without conducting a security check, including wanding the person and this Sheriff's Officer stated that he had a discretion whether to wand someone or not. Further, Mr Bateaux expressed concern regarding apparent footage showing the Sheriff's Officer using a laptop and was distracted from undertaking his scanning duties.
5. Following the above incident, Mr Bateaux had a discussion with Ms Hall and he was instructed to put in place a review of video footage at Toronto, Broadmeadow Children's and Newcastle courts. This video footage was reviewed by an officer from outside of the Newcastle hub and the outcomes were presented to the Conduct and Professional Standards team for inclusion in its investigation process. Mr Bateaux also reviewed the footage and the allegations prior to those being sent to the applicant.
6. In cross-examination Mr Bateaux conceded that he had been informed by Mr De La Paz in February or March 2024 that there had been instances of non-compliance with scanning procedures. Also, he conceded that on occasions he had called Sheriff's Officers on their mobile phones during working hours.
7. As to Ms Hall, she provided an overview of the training provided to Sheriff's Officers, unfortunately her evidence did not set out the training undertaken by the applicant.
8. Ms Hall was the decision-maker and her evidence was that before she made her decision she spent an hour reviewing the video footage. She accepted that the applicant had no previous disciplinary record, long service history and would find it difficult to find another job, however, she stated that the breaches were "sustained", "serious", and resulted in a loss of trust, and therefore termination was the only possible outcome.

1. Allegations 1 to 5 and allegation 7 are appropriately dealt with together, as they each centre around conduct concerning the performance of security work at court, whereas allegation 6 is one that is in effect an allegation of dishonesty.
2. The applicant submitted, relying on cases such as Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 71; Franklins Limited v Webb (1997) 72 IR 257; Wang v Crestell Industries Pty Ltd and Anor (1997) 73 IR 454, that the respondent had an onus to prove the misconduct.
3. The applicant in his final written and oral submissions put that only allegations 1 to 3 had been proven by the respondent.
4. In relation to allegations 4 and 5, the applicant contended that the respondent had failed to adduce evidence to establish that the that the courts were still operating until the times nominated and thus the misconduct had not been made out on relation to these allegations.
5. The above submission of the applicant in relation to allegations 4 and 5 must be and is rejected because the applicant in his own evidence, as set out in this decision above, admitted that the conduct the subject of the allegations 4 and 5 had occurred. Furthermore, the also applicant admitted that he shouldn't have closed the security checking point at the time that he did.
6. In assessing the misconduct in allegations 1 to 5, the respondent's submission is effectively encapsulated in allegation 7, i.e. the applicant failed to follow known policies and procedures, which put at risk himself, members of the judiciary and others.
7. In a different context, but relevant to the consideration of this application, the Commission as presently constituted in Lusty v Industrial Relations Secretary, on behalf of the Department of Communities and Justice (Corrective Services NSW) [2023] NSWIRComm 1016 the Commission dealt with the meaning of "misconduct" for the purposes of s 69 of the Government Sector Employment Act 2013 (NSW) ("GSE Act"). At [31] of Lusty it was determined the Commission followed the approach of Boland J in McDiarmid v Commissioner of Police [2012] NSWIRComm 100 at [124]- [125]:

"124 The applicant relied on the definition of misconduct provided by Kirby P in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200-201 where his Honour stated:

'In the 1988 supplement to the Corpus, reference is made to Beaunit Mills Inc v Board of Review, Division of Employment Security, Department of Labor and Industry 128 A.2d 20 (1956). In that case, the New Jersey Superior Court held that "misconduct" does not mean mere mistakes, errors in judgment or in the exercise of discretion or minor but casual or unintentional, carelessness or negligence. It did not mean mere inefficiency, unsatisfactory conduct, failure of performance as a result of inability or incapacity inadvertent in isolated instances or errors of judgment which were not made in bad faith or some other ingredient. Numerous other recent cases are cited to support the proposition that, in the United States, "misconduct" generally means wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts. Similar approaches to the meaning of the word 'misconduct' have been taken in Australia, outside the context of professional discipline: see, eg, O'Connor v Palmer (No 1) (1959) 1 FLR 397.'

The primary dictionary meanings confirm that this is also the way 'misconduct' is used in everyday speech.

125 Subject of course, to the statutory context in which I am required to consider the question of misconduct, I am prepared to accept Pillai v Messiter (No 2) helpfully distinguishes between what is and what is not misconduct. Misconduct does not mean, 'mere mistakes, errors in judgment or in the exercise of discretion...' or 'unsatisfactory conduct', but rather 'wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts.' I would not place too much weight on the word 'obstinate', however. If the misconduct was reckless or careless indifference I think the test in Pillai v Messiter (No 2) would be met."

1. The evidence of the applicant was clear that he believed that he had a level of discretion in relation to the undertaking of his security work and that he was following a long-standing practice.
2. The applicant accepted that his conduct with respect to the use of his mobile phone was improper, particularly when he was shown the video footage of this conduct. It is also important to note that the video footage also captured video footage of another Sheriff's Officer who was performing the same duties as the applicant who was also using his mobile phone in an almost identical manner to the applicant. Obsession, bordering on addiction with mobile devices is apparent throughout the community, the video footage showed that the applicant and his work colleague appeared to suffer from this same affliction.
3. There was nothing in the evidence before the Commission that the conduct of the applicant in relation to allegations 1 to 5 and 7 was motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of his acts.
4. The evidence of Mr De La Paz and Buteaux was clear that they knew about the type of conduct in allegations 1 to 5 by Sheriff's Officers for over a year. It is also clear that the issuing of emails and other steps taken to address that type of conduct was ineffective given the conduct and the statement made by a Sheriff's Officer on or around 5 March 2025.
5. The conduct in allegations 1 to 5 and 7 arose from workplace custom and systemic management failures, not wilful misconduct. The appropriate course of action in relation to this conduct would have been to issue a warning to the applicant rather than terminate him from his employment.
6. Turning to allegation 6, the following table reproduced from the respondent submissions, with an amendment to a calculating error on excess time recorded for 20 December 2024 details the alleged misconduct.

1. On the three entries of approximately 30 minutes the applicant had recorded the words "nil lunch" in the flex sheets, consistent with his evidence that at Toronto he would often work through his lunch break as the Courts would sit then. He then would then take account of this time by recording a finishing time half an hour later than he finished.
2. The Respondent's evidence in relation to satellite Courts sitting through lunch breaks was mixed. Ms Hall accepted that satellite courts may sit through lunch and that operationally two officers were required to stay at the perimeter screening whereas Mr Buteaux stated that the courts in Toronto would close between one and two pm every day.
3. In relation to Mr Buteaux's evidence, even if he was correct that the Courts would close for lunch between 1 and 2pm, the CCTV observation monitoring annexed to the statement of Ms Hall records the applicant having performed work between the hours one and two pm on four of the eight days recorded, including 13 January 2025 and 15 January 2025, and 3 February 2024. Given the weight of evidence on this issue, I accept that satellite courts, including Toronto, would on occasions sit through the time allocated for the applicant's lunch break and as such the applicant would have been required to work through his lunch break.
4. As to the entry of the times on each of those three days, the applicant by making the notes that he did was not attempting to hide what he was doing on the three entries of 13 January 2025, 15 January 2025 and 3 February 2025 the applicant had not inflated his working hours to derive a personal benefit as contained in allegation 6.
5. Turning to the two other entries, both on a Friday of 20 December 2024 and 7 February 2025, the number of hours is far more than 30 minutes.
6. The evidence disclosed that the applicant worked on Fridays at his secondary employment and was rostered to start at 3:00pm, however the applicant drew the Commissions attention to his uncontested evidence that his secondary employer did not mind if he didn't get there at 3:00pm.
7. The applicant in closing oral submissions, pointed to the fact that the flex time sheets show every Friday afternoon over a period of 20 weeks, except on 2 occasions disclose that the applicant recording a finish time on Fridays of either 3 o'clock or 3:30 or 3:45. The applicant then went onto to put that this establishes a pattern of the applicant recording a finish time earlier than his standard hours of 4 o'clock.
8. The applicant also submitted that the respondent was aware of the pattern of the applicant finishing earlier on Friday as according to Mr De La Paz, because every week he conducted an audit of the flex sheets, and every 12 weeks Mr Buteaux signed off on the flex sheets.
9. Finally, the applicant in his submissions put that the schedules for the Fridays of 20 December 2024 and 7 February 2025 do not take account of the applicant not taking a lunch break and thus the amounts of excess time recorded should be reduced by 30 minutes on each day.
10. The applicant's sole explanation in relation to the Friday entries that is in evidence before the Commission is that he made an honest mistake and was not deliberately seeking to inflate his hours worked by recording the times that he did in the flex sheet.
11. It is plausible that the applicant may have made errors in recording his hours in the flex sheet from time to time, particularly in circumstances where he made the entries some time after working the shift. However, I find it implausible that the applicant would not have remembered finishing as early as he did on 20 December 2024 and 7 February 2025 when he made the entries in his time sheet for those dates.
12. There was motivation for the applicant to leave early on Fridays given his commencement of a shift later that day. In reaching this conclusion, I do not find that the applicant was working at his secondary employment during the finish time which he recorded in his flex sheet.
13. I have considered the character evidence, which is relevant in cases of integrity, when considering whether a termination is harsh, unjust which the conduct in relation to incorrect time entries is: Toschak v the Commissioner of Police [2009] NSWIRComm 31. Whilst there is no doubt that each of the witnesses are of the view that their assessment of the applicant's character is that it is inconsistent with the allegations, including allegation 6, this does not outweigh the implausibility of the applicant making a mistake in relation to the entries on 20 December 2024 and 7 February 2025.
14. I find that the applicant deliberately inflated the number of hours that he had worked on 20 December 2024 and 7 February 2025 and that this conduct constitutes misconduct for the purposes of s 69 GSE Act.
15. I note the applicant's submissions concerning his previous unblemished record and that the dismissal is disproportionate outcome in relation to any of the allegations.
16. Ultimately, knowingly claiming additional hours worked is time theft. Misconduct of this nature is so serious that despite the mitigating factors, on balance, dismissal is not harsh. Particularly, as the applicant was employed as a Sheriff's Officer, a role of great import and a representative of the Crown. Additionally, the applicant had been placed in a position of trust working in remote court locations without regular direct supervision. The applicant stealing from their employer was an abuse of this trust.
17. Given the above, I find that the dismissal of the applicant for the reason of falsely entering excess time worked on 20 December 2024 and 7 February 2025 was not unfair for the purposes of the Act and accordingly the application is dismissed and I so order.

16 April 2026 - Amend paragraph [63] pursuant to r 9.4 of the Industrial Relations Commission Rules 2022 to insert the word "not" after the word "was".