Tucker v Transport Secretary

Materials relied upon

1. On 16 April 2024, the applicant filed the AS, and witness statements of the applicant (applicant first statement) and Darren Watson (Watson statement).
2. On 14 May 2024, the respondent filed his outline of submissions (RS) and a statement of Mark Hutchings and its annexures (Hutchings statement).
3. On 21 June 2024, the applicant filed a further witness statement of his own (applicant statement in reply) and statements of John Staines (Staines statement) and Anita Schulze (Schulze statement). No submissions in reply were filed by the applicant.
4. The applicant, Mr Watson, Mr Staines, Ms Schulze, and Mr Hutchings were cross-examined.
5. On 28 June 2024, the parties jointly filed a Statement of Issues and Agreed and Disputed Facts (Agreed and Disputed Facts) which was an exhibit in the proceedings.
6. The parties agreed that the four issues to be determined by the Commission are: "1. Whether the Applicant engaged in misconduct as alleged by the Respondent. 2. Whether the Applicant's dismissal was harsh, unreasonable or unjust in all the circumstances. 3. If the Commission finds that the dismissal was harsh, unreasonable or unjust in all of the circumstances, whether the primary remedy of reinstatement is appropriate. 4. If the Commission finds that the dismissal was harsh, unreasonable or unjust in all of the circumstances, what amount of compensation should be ordered."
7. The parties say that there are two factual matters in dispute: "The Applicant disputes that his conduct in contacting Mr Smith in the period 18 September 2022 to 18 October 2022 amounted to a breach of the Code of Conduct or the Conflicts of Interest Policy. The Applicant disputes that he engaged in misconduct."

Case theory raised at commencement of the arbitration

1. At commencement of the arbitration, I dealt with the parties' objections to evidence. In response to questions about the relevance of the material in the applicant's statements about the circumstances of the deaths of Mr Wayne Smith and Noah Smith, the applicant's representative made the following submission: "BOND: … it appears to us what happened was a complaint was made by Mr Smith back in November 2022 I believe, apparently to the Ombudsman. It sits there for three months. Three months later it goes to ICAC and then three months later goes back to the Department. Shortly after it goes to the Department, Mr Smith kills himself and his son and the Department saw all sorts of, well, it was getting a lot of press in the Yamba area. He was well known, Mr Smith was, in that area. His son was well known and if you look at the actual complaint that was made by Mr Smith, he makes it sound like Mr Tucker destroyed his mental health, that he was causing him anxiety and stress and he's not sleeping, he's not able to attend work, and makes it sound like the actions of Mr Tucker destroyed his mental health and we say what the Department did was, once they became aware of those allegations, they panicked and said if the press gets a hold of this complaint, we could be blamed because this complaint's been sitting out there for six months. Nothing has happened and now we have a murder suicide and so it is the position of the applicant that the reason that the respondent took this action against him was tied directly to discovering the complaint shortly after the murder suicide by Mr Smith and his son."
2. This was not a matter set out in the Agreed and Disputed Facts and the respondent's counsel made the following submissions in reply to the applicant's contention: "GALL: The submissions put by Mr Bond just a moment ago, that's the first time that's been raised as an issue. It's not raised in the written submissions at all in terms of that being a concern or that being, there being some sort of question of unfairness or harshness in the manner in which Mr Tucker was terminated with some link to that. That's the first time that that's been raised, and in my submission, that's without any proper foundation. It's quite a serious allegation to be put and if it was to be made, it really should have been put earlier. It was not raised at all by Mr Tucker in any of the contemporaneous documents when he was given an opportunity to respond to the various allegations and so forth. It's just being raised really for the first time now. … There is no suggestion at all in the material by the Department that Mr Tucker was to blame for anything that Mr Smith may or may not have done, or that that was a matter that was taken into account whatsoever with respect to the decision to terminate. So, it's just not relevant at all to the issues before you as to whether, one, there was a valid reason for a dismissal; we say there was, and two, the various other factors that the Commission is to have regard to. It just does not arise on any of those elements." (Tcpt p 4 at 10 - 36)
3. In response to a question from me about the procedural fairness implications if I were to consider this submission from the applicant, the respondent's counsel said: "GALL: Yes, well I would say that this is the first time it's been contended that there may be a reason that the dismissal was harsh, unjust or unreasonable for that reason, because it wasn't raised either in the written submissions or in the witness statements of Mr Tucker, or as I was saying, in the statement of agreed issues and disputed facts, or otherwise in correspondence. This is really the first time it's been put that way." (Tcpt p 5 at 23-28)
4. The applicant's representative submitted: "BOND: Senior Commissioner, I don't know if it was brought up as directly as I did this morning, but the respondent's own materials put that - acknowledge the relevance of the murder suicide. They're the ones that brought it up. Mr Hutchins, in his witness statement, he attaches a case summary as the first exhibit to his witness statement and he creates - he attaches a link to a news story about the murder suicide and then that case summary goes on to say, another person who's departmental employee, that she learned about the murder suicide and that's what triggered her to look into what sort of a complaint had been made against Mr Tucker. So they're the ones who brought it into relevance. … BOND: I guess it would be my position that if it's put into evidence, I'm able to make any arguments related to the evidence that's in the record and it's the respondent who put that evidence into the record. I should be able to, in submissions, say what you should take from that evidence. SENIOR COMMISSIONER: Mr Hutchins' statement was filed on 15 May. Th[Agreed and Disputed Facts] was filed on 28 June. So you had six weeks to consider the evidence of the respondent before agreeing this document. Is that correct? BOND: Yes, I don't have the dates in front of me, but I accept that if that's what you say the case is." (Tcpt p 5 at 41 - p 6 at 24)
5. The respondent's representative went on to say: "GALL: … the case summary is put in as material that was before the decision maker. It's not put in - it certainly doesn't, other than by way of passing reference, it doesn't go into details about it in the same way that the other evidence does, and it doesn't draw any link to - what Mr Bond said, I can't see that in the case summary and he hasn't pointed to where that is. So I would say that that submission doesn't have a proper basis for it. The case summary only mentions it in passing. There is no relevant link to the decision for dismissal." (Tcpt p 6 at 28-35)
6. The applicant's representative pressed the "case theory" or "theory of the case" as to why the respondent investigated the matters alleged against the applicant stating: "BOND: Well, I think the mental health issues are relevant because, as I said before, our theory of the case is that the complaint made by Mr Smith contained all sorts of allegations that Luke Tucker was the person who caused him all these mental health problems. I think it's relevant to the fact that he had these pre-existing mental health problems, the Department knew about that, they knew that some of the allegations that were contained in the complaint of Mr Smith were bordering on the bizarre, yet took those allegations and put them to Luke Tucker and ended up terminating his career as a result of it. I think Mr Smith's mental health issues are completely relevant to this proceeding, because our theory of the case is that he's blaming Luke Tucker for his mental health issues; he clearly had pre-existing mental health issues, the Department knew he had pre-existing mental health issues, yet pressed ahead with the investigation of Luke Tucker while not acknowledging those. SENIOR COMMISSIONER: If that was clearly at the centre of the theory of your case, then why would it not have been something contained in the statement of issues and agreed facts?" (Tcpt p 8 at 38 - p 9 at 7)
7. The "theory of the case" referred to by Mr Bond in oral submissions was not raised in the Application, the AS or the Agreed and Disputed Facts.
8. The parties were required to file the Agreed and Disputed Facts prior to the hearing. The applicant's approach of raising a "theory of the case" for the first time at the opening of the arbitration, if accepted, may result in procedural unfairness to the respondent and render the effect of the Agreed and Disputed Facts nugatory. Nevertheless, the Commission is a tribunal, not a court of strict pleadings, and the Evidence Act 1995 does not apply to proceedings before the Commission. The Commission is to act according to equity, good conscience, and the substantial merits of the case: s 163 of the Act.
9. In Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (obo Saraceno) v Commissioner of Police [2024] NSWIRComm 1001 ("Saraceno") (upheld on appeal: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Commissioner of Police, New South Wales Police Force [2024] NSWIRComm 1062), Commissioner McDonald said at [81]: "… As the Honourable Chief Justice King in Williams v Australian Telecommunications Commission (1988) 52 SASR 215 at 216: "The fundamental purpose of pleadings is to provide a structure or framework for the litigation designed to promote a just outcome." While s 163 of the IR Act provides that the Commission is not bound to act in a formal manner and obliges the Commission to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms, as Chief Commissioner Constant explained in Kinninmont, this does not absolve a litigant from being required to enunciate its case in a consistent and clear manner and the respondent cannot be required to respond to a case not raised before it is required to put on its evidence in response."
10. In an unfair dismissal matter such as this, there is no "reverse onus" as there was in Saraceno. The onus is on the applicant to prove that his dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273.
11. However, as the Dismissal was justified on the basis of allegations of misconduct, it is for the respondent to establish that the alleged misconduct in fact occurred: Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 464; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 at 83-84; Starr v Commissioner of Police [2001] NSWIRComm 226 at [153]. It is therefore for the respondent to establish first, on the balance of probabilities having regard to the seriousness of the allegations, the matters alleged against the applicant that it found substantiated: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, at 2.
12. If the respondent cannot make out his onus to establish the misconduct, then will not be a proper reason for the Dismissal and the applicant will be successful in establishing unfairness. In that circumstance, it will not be necessary to consider the applicant's submissions about the respondent's motivations and the delay in investigating the applicant's conduct nor any procedural fairness issues arising as a consequence of the late raising of this case theory by the applicant.
13. Regardless of the onus, a respondent employer is entitled to know the case against it to which it must respond, prior to all evidence being filed. Consistent with my obligation to act according to equity and good conscience, I admitted the material touching on the deaths of the Smiths which is the applicant's response to details relevant to the Allegations and which is evidence that is within the applicant's direct knowledge. I will deal with any procedural unfairness to the respondent arising from the applicant's late assertion of his case theory referred to at [20] after determining whether the Allegations are established to the relevant standard on the balance of probabilities.

Background to the Allegations, the Dismissal and the Application

1. At the time the applicant first statement was filed, the applicant was 53 years old.
2. The applicant was employed by the Crown, as represented by the respondent and his predecessors, as a Boating Safety Officer, between 8 January 2001 and 24 January 2024, a period of over 23 years. From November 2011 until the Dismissal, the applicant was employed as a Boating Safety Officer at Yamba.
3. As a Boating Safety Officer, the applicant's responsibilities included patrolling waterways, providing advice, managing navigation and other maritime activities, and ensuring compliance with legislative requirements. It is common ground that at least some assistance is provided by Transport for NSW to the NSW Water Police when the NSW Water Police investigates serious offences.
4. The applicant asserts that he "had an unblemished work history over the course of 24 years": applicant first statement at par 18 and applicant statement in reply at pars 36 and 37.
5. The respondent asserts that the applicant had some prior disciplinary history. Mr Hutchings deposed that the applicant was informally counselled: on 1 February 2022 for not wearing a life jacket while on a vessel; and on 15 September 2022 for sending an offensive text message to a Training Facilitator, for which the applicant apologised: par 49 of the Hutchings Statement. The respondent asserts also that the applicant underwent a Disciplinary Investigation in August 2013 relating to six issues, for which he received a Final Warning, although this was withdrawn from his file in 2014: MH1 to the Hutchings Statement at p 3.
6. During the course of his professional activities, the applicant had interacted regularly with Wayne Smith, a Ports Officer at the Port of Yamba. The applicant's son, Kobe, also went to school with Noah Smith, Mr Wayne Smith's son.
7. On 23 February 2022, the applicant sent Mr Wayne Smith a text in relation to Noah Smith's alleged bullying of Kobe. The text message read as follows: "Wayne, I am concerned that your son Noah, has and continues to bully my son Kobe within the school environment. It is alleged that Noah, bases his bullying behaviours, upon my position within Maritime. Noah alleging unreasonable boating & compliance activities. I do not apologise for my compliance responsibilities in this regard. In addition, I am advised by my son and school representatives that the bullying is also alleged to be based upon operational & potentially sensitive information, perhaps privy or otherwise known to only you. This allegation may present as a breach of personal privacy and of sensitive corporate information. I am hoping that the bullying desists, and the matter does not need to be further examined by Government. Regards Luke."
8. On 26 September 2022, a boating accident occurred on the Sandon River. The seriousness of the accident caused the Coffs Harbour Water Police to commence an investigation.
9. On 28 September 2022 the applicant provided to NSW Water Police Sergeant James Etches penalty notice data in relation to the persons on board the two watercraft involved in the accident: attachment MH11 to the Hutchings Statement.
10. One of the persons injured in the boating accident was Noah Smith, who was a passenger on one of the vessels. When the applicant provided a summary of records in relation to those involved in the boating accident, he referred to Noah Smith as a "POI" (Person of Interest) and advised Sergeant Etches that there were no records held by "Maritime" in relation to him: attachment MH11 to the Hutchings Statement.
11. The respondent asserts that throughout the day on 28 September 2022, the applicant repeatedly attempted to contact Mr Wayne Smith in relation to Noah Smith's boating records: 1. At 8:42 am, the applicant texted: ""Hi Wayne, Luke from Maritime, give me a call please …"; 2. At 2:39 pm, the applicant attempted to call Mr Wayne Smith. When Mr Wayne Smith told the applicant that he was at the hospital and could not speak to the applicant, the applicant texted: "Hope Noah is okay. Police have asked me to do Maritime background checks. I can't find a record for Noah. Guess that's a good thing, but I thought he would have a licence"; and 3. At 6:15 pm, the applicant texted: "Wayne, I'm sorry Noah is involved. I need to provide the info requested. Does Noah hold a Boating Licence or have previous offences or some record with Maritime?"
12. At 2:02 pm on 29 September 2022, the applicant left a voice message for Mr Wayne Smith: "Hi Wayne, Luke, just following up on seeing how Noah is and I still need some information about his licence if he has one, or other record with Maritime. I can't seem to find anything which, like I said, I guess is good, but it surprises me we don't have anything. I'm thinking there is a data error name spelling or date of birth, something like that. Give me a call back thank you".
13. On 14 October 2022, the applicant approached Mr Wayne Smith at the Pine Wood Corner Coffee Shop in Yamba Street, Yamba. The applicant attempted to speak to Mr Wayne Smith in relation to Noah Smith's records. The Workplace Investigation Case Summary relied on Mr Wayne Smith's account which is Annexure MH4 to the Hutchings Statement, to provide that the following exchange occurred (page 4-5): "(18) Mr Smith said to Mr Tucker, "Stop right there Luke. This isn't appropriate and it has got nothing to do with you, back off. It's got nothing to do with Noah. Police are running the investigation and Noah has given a statement." (19) Mr Tucker said to Mr Smith, "Yes it does. It's like when an owner of a vessel that is involved in an incident, I can investigate the owner of that vessel." (20) Mr Smith replied, "Noah never had a boat down there. He never had a registered boat there. I never had a boat there either, so it's not appropriate - not on." (21) As Mr Smith stood up and commenced to walk away, Mr Tucker shouted to him, "Yes it does.""
14. The applicant largely admitted the conduct referred to in [38]-[40]: Tcpt p 16.
15. During the investigation by the respondent, Bret Ryan, the applicant's manager gave a statement (see Annexure MH7 to the Hutchings Statement). Mr Ryan did not give evidence in the proceedings before me, and the applicant objected to the admission of MH7 and other annexures to the Hutchings Statement on the basis that it was hearsay. These objections were dealt with at the outset of the hearing and much of this material, including Annexure MH7, was accepted on the basis that the Commission would place the appropriate weight on the material.
16. In his statement to the investigator, Mr Ryan said that on 15 October 2022 he contacted the Water Police and spoke with Sgt James Etches, who was one of the NSW Police Officers involved in the investigation of the incident involving Noah Smith. Mr Ryan said that Sgt Etches informed Mr Ryan that NSW Police had not asked the applicant to make any inquiries on behalf of the Police. According to Mr Ryan, Sgt Etches asked that the applicant not be involved in the investigation and if Mr Ryan could be the point of contact for the Police. Mr Ryan said that Sgt Etches said that the Police did not want anything to do with the applicant.
17. Mr Ryan went on to say in his statement to the investigator, that on or about 15 October 2022, the applicant spoke with Mr Ryan. During this conversation, according to Mr Ryan, the applicant discussed his efforts to obtain information about Noah Smith. Mr Ryan asserted that the applicant told Mr Ryan words to the effect of, "I know Noah was driving and the Police aren't investigating". In response, Mr Ryan told the applicant that "we don't do parallel investigations. They [the Police] are the lead agency."
18. In the applicant statement in reply the applicant denied saying: ""I know Noah was driving and the Police aren't investigating": par 9. However, on 12 December 2023, the applicant provided an undated written response to the "Show Cause Letter" from the respondent dated 22 November 2023 (see MH 23 to the Hutchings Statement). In the applicant's response, he asserted that the response by the parties involved in the boating accident could be described as a "cover up" (see LT 3 to the applicant first statement and MH 24 to the Hutchings statement).
19. At 1:01 pm on 18 October 2022, the applicant sent a text message to Mr Wayne Smith which reads as follows: "Wayne, I draw your attention to Powers conferred to me under section 117 of the Marine Safety Act 1998. You have refused to cooperate, although I made four separate requests for information from you in relation to a boating incident. I draw you[r] attention [to] Section 125 of the same Act providing Penalty for refusing to cooperate and caution you accordingly. I will discuss the matter with you in the coming days. Regards, Luke."
20. The applicant admits that he sent the email referred to in [46], referring to his powers as "an authorised officer" and says he was assisting the investigation: Tcpt pp 17-20 but denies that the content was intended to be threatening: Tcpt p 79.
21. At 5:20 pm on 18 October 2022, Mr Wayne Smith sent the following text message to the applicant: "Luke, Thank you for your concern. Under no circumstances are you to approach or speak to my son in relation to this matter. Under no circumstances are you to attend at my home address. Under no circumstances are you to approach me and speak to me in relation to this incident. This matter has been investigated by the Police and finalised. Any further correspondence is to be directed to them. Please do NOT Text me again in relation to this matter. Wayne."
22. At 6:36 pm on 18 October 2022, Mr Ryan emailed staff, including the applicant, instructing them that the Police were handling the matter and "all follow up enquiries with masters and victims is to cease from this point forward".
23. The applicant submitted that despite Mr Ryan sending the email referred to in [49], that even with the knowledge of Mr Wayne Smith's complaint, Mr Ryan did not caution the applicant at this time that he may be conflicted in conducting a background check on Noah Smith and that this should be construed as Mr Ryan not considering the matter to be serious: "BOND: No. Mr Ryan recognised that it wasn't a situation of serious misconduct. There's evidence in the record that he had cautioned Luke previously about a potential inappropriate text message that he had sent to some trainer Luke took care of. He says, well, you know, I recognise that. I'm sorry. I went direct to the trainer, I apologised, and Mr Ryan even commended him for being able to recognise when he needs to correct his conduct. The only thing that you could construe as being threatening in any way, is the text message that referenced the Marine Safety Act, s 117 or 125. But I don't think you can construe that as particularly threatening, and I don't think Wayne Smith took it as threatening, because all he did in response is say, "Thank you for your concern. You're not to contact me. You're not to contact my son. The police have dealt with this." And that was the end of it."
24. On 10 November 2022, Mr Wayne Smith made a complaint to the NSW Ombudsman that he had been harassed and intimidated by the applicant. The NSW Ombudsman assessed the complaint as a Public Interest Disclosure and referred the matter to the NSW Independent Commission Against Corruption (ICAC) on 16 February 2023.
25. On 23 May 2023, ICAC referred the matter to the respondent pursuant to s 53 of the Independent Commission Against Corruption Act 1988.
26. Wayne and Noah Smith died on 1 June 2023.

The Allegations

1. On 10 July 2023, Mr Hutchings, on delegation from the respondent, notified the applicant at a meeting at Tweed Heads that the respondent was investigating the applicant's conduct and suspended the applicant with pay. During this period, a number of further issues arose (see [58] below).
2. By letter dated 23 August 2023, Ken Audley, on behalf of the respondent informed the applicant of the allegations against him (Allegations) (see Annexure MH23 to the Hutchings statement at pp 176 - 181): "1. Between 26 September 2022 and 18 October 2022, you inappropriately exercised your official functions as a Boating Safety Officer whilst improperly engaging in enquiries which concerned Mr Wayne Smith and the young person Noah Smith. 2. That, between 26 September 2022 and 18 October 2022, you engaged in enquiries which concerned Mr Wayne Smith and the young person Noah Smith, without declaring and/or appropriately managing a conflict of interest you had in dealing with them."
3. On 28 September 2023, the applicant provided a written response to the Allegations: Annexure LT3 to the Tucker Statement, which set out, relevantly, that: 1. it had taken 10 months and 17 months, respectively, for Allegations 1 and 2 to lead to the suspension of the applicant and the opening of an investigation. It had also taken another 10 weeks for the Allegations to be provided to the applicant; 2. as concerns Allegation 1, the applicant disputed many of the facts upon which the Allegation relied; and 3. as concerns Allegation 2, the applicant conceded that he did message Mr Wayne Smith about the bullying as provided at [34]. However, the applicant contended that the bullying stopped immediately, and he considered the matter closed, meaning no conflict of interest arose after the boating accident.
4. On 19 October 2023, the applicant was interviewed via video link by Peter Gallagher of Pinnacle Integrity in relation to the Allegations.

The Additional Concerns

1. In addition to the Allegations, the Workplace Conduct and Investigations Unit (WCIU) raised several additional concerns with the Professional Standards and Conduct Unit (PSCU) (Additional Concerns), namely: "Disrespectful Conduct d. 8 July 2023 - When Mr Tucker was contacted by Nicole Watts, Director Maritime North and advised that he was required to attend a meeting at Tweed heads at 11am the next Wednesday, 10 July 2023, Mr Tucker initially told Nicole Watts that "he was too busy to attend" and that she would need to speak to Sonia McKay, his manager to organise a more suitable time. Mr Tucker never confirmed his attendance and on the Wednesday morning, had to be contacted by his team leader to ascertain his current location and confirm his attendance. When Mr Tucker did arrive at Tweed Heads, he was 15 minutes late and offered no explanation or apologies for his lateness. e. 10 July 2023 - During the meeting in which Mr Tucker was advised that he was being suspended from duty, Mr Tucker did not comply with the request to return any TfNSW [Transport for New South Wales] equipment. A significant amount of time was then spent explaining and attempting to convince Mr Tucker that he needed to comply with the request. Mr Tucker also refused to provide personal contact details, was argumentative and disrespectful in his tone. Additionally, at the end of the meeting, Mr Tucker was asked to wait outside so that someone could drive him home. He asked for vehicle keys to get personal items from the work vehicle, however, then proceeded to take the vehicle home against direction and without approval. f. 1 October 2023 - During the process of organising Mr Tucker to have access to his TfNSW laptop so he could prepare for his interview, he demanded access for his TfNSW vehicle so that he could attend Tweed Heads, was obstructionist in his availability and, and used a disrespectful, dismissive and threatening tone with WCIU. Confidentiality breaches g. The external investigator advised that on 25 October 2023, after Mr Ryan and Mr Tucker had been interviewed, Mr Tucker had sent two text messages to witness Bret Ryan: i. "Would you please order me 3 x 87R Cargo Shorts, so I can return to work. My 92's are falling off me...must be stress!" ii. "BTW, what they said you said: I don't believe. No reason for you to lie, right?" The external investigator believes that the text messages are meant to intimidate a witness. Firstly, a reference to Mr Tucker returning to work and secondly, a reference to the investigation and questioning Mr Ryan's version and integrity. In this matter, Mr Ryan is also considered a PID, aggravating the seriousness of this breach. h. Mr Ryan also advised that Mr Tucker was contacting other Maritime staff in relation to the investigation: i. Mr Ryan advised that on 12 October 2023, Ms Kate Dallimore a TfNSW employee who works in the same office as Mr Tucker in Yamba, reported her interaction with Luke. ii. Kate indicated it was a chance meeting in the street and a random and unsolicited response to anything she'd had asked him, Luke volunteered information that he had been suspended and was under investigation for doing nothing wrong. iii. Kate was unwilling or unable to further elaborated on the precise time or date this interaction took place, likely for having similar concerns to Mr Hamilton."

Outcome of the investigation

1. On 3 November 2023, the respondent informed the applicant that the investigation had been completed.
2. On 22 November 2023, the respondent informed the applicant of the findings of the investigation in the Show Cause Letter. The Show Cause Letter informed the applicant that: 1. Allegation 1 was substantiated. 2. Allegation 2 was substantiated. The letter provided that: "The subject of this email [sic: text message of 23 February 2022 to Mr Wayne Smith] constitutes an actual, potential or perceived conflict of interest between yourself, Mr Wayne Smith, and the young person Noah Smith in relation to your official duties. You failed to declare and/or appropriately manage this conflict of interest when you engaged in these enquires between 26 September 2022 and 18 October 2022 concerning a boating incident on the Sandon River in which the young person Noah Smith was injured." 1. The Allegations disclosed breaches of the Code of Conduct and Transport Conflicts of Interest Policy - Personal Interests, Secondary Employment, Gifts and Benefits (Conflicts of Interest Policy). 2. The respondent referred to the Additional Concerns noting that "TfNSW takes these matters very seriously" and invited the applicant to respond to them in a response to the Show Cause Letter. 3. The investigation and findings had led Executive Director Mark Hutchings to form a preliminary view that dismissal was an appropriate penalty. The applicant was invited to show cause as to why this dismissal should not proceed.
3. On 12 December 2023, the applicant responded in writing to the proposed disciplinary action and the Show Cause Letter. The applicant contended that the Show Cause Letter failed to adequately explain how the Allegations had been substantiated. The applicant responded to the Allegations by arguing that: 1. As regards Allegation 1, his persistence stemmed from Mr Wayne Smith's refusal to comply with his request for data. Additionally, he had become aware of information suggesting a "coverup" had occurred regarding the boating accident. 2. As regards Allegation 2, he did not consider that there was a conflict of interest because he had not borne any ill-will towards Mr Wayne Smith over the bullying incident and considered the matter resolved shortly after his email of 23 February 2022. He conceded that he could have "recused" himself from the enquiries, however, to avoid the appearance of a conflict of interest. 3. As regards the Additional Concerns, the applicant informed the respondent that: "In relation to your "additional concerns", I'm not able to comment without being provided with more specific information about alleged breaches of confidentiality obligations. All I can say at this point is that I don't believe I have interacted with anyone who wasn't already fully aware that I had been suspended and was subject to an investigation."
4. On 18 January 2023, the respondent notified the applicant by letter of the Dismissal. The respondent informed the applicant that: "I accept the findings of the disciplinary investigation as set out in the show cause letter and have relied on the substantiated allegations. In making this decision, I have carefully considered your written correspondence of 12 December 2023 and your responses given during the investigation process. I do not consider that the issues you raised outweigh the seriousness of your conduct or alter the appropriateness of the proposed disciplinary outcome. […] I consider your conduct to be in breach of the Transport Code of Conduct in that you have failed to comply with the following requirements: Section 3 - Staff responsibilities Section 5 - Ethical Decision Making Section 6 - Conflicts of Interest Section 12 - Bullying, harassment, discrimination and inappropriate workplace conduct Section 13 - Child protection in the workplace In addition, I consider you have breached the following policies/procedures: Transport Conflicts of Interest Policy - Personal Interests, Secondary Employment, Gifts and Benefits"

Post-Dismissal Conduct

1. Several aspects of the applicant's conduct post-dismissal ("Post-Dismissal Conduct") were raised by the respondent.
2. The applicant returned the respondent's property in a manner the respondent characterised as disrespectful, by dumping it outside his property alongside other items for collection and sending text messages and images of the property to former colleagues on 25 January 2024. The applicant suggested that the items would have to be picked up quickly because the "pickers are pecking. Better hurry up".
3. On 23 March 2024, the applicant sent a text to Executive Director NSW Maritime, Mark Hutchings, complaining of "disgraceful" treatment because Mr Hutchings had not had the "balls" to support him against a "mentally ill man." This caused Mr Hutchings to have the police conduct a welfare check on the applicant.

Policies relied on by the respondent

1. The relevant provisions of the Code of Conduct that the respondent determined were violated by the applicant are: "3. Staff Responsibilities You are responsible for familiarising yourself with agency policies and procedures, and complying with them. You are also responsible for making enquiries if you are unsure about what actions to take. You need to be aware that the reputation of the transport agencies can be affected by your actions at work and, in certain circumstances, by your conduct outside the workplace. You must: treat our customers and colleagues fairly, consistently and with respect; behave in a lawful, professional and reasonable manner and always act in the best interest of Transport; comply with agency policies and procedures, as well as relevant legislative and industrial requirements that apply to you; understand the duties, responsibilities and accountabilities of your role, and perform these safely, honestly, courteously and fairly; make impartial decisions that demonstrate your agency's values and promotes confidence in the integrity of public administration; comply with reasonable lawful requests, directions and instructions given in the course of your duties by any person with authority to do so; maintain the integrity, confidentiality and security of corporate information; report unethical, dishonest and/or corrupt conduct; not discriminate, harass, bully or engage in inappropriate workplace conduct; not gamble, including online gambling, in the workplace and, in vehicles or vessels using official devices, during paid work time (excluding established practices such as Melbourne Cup sweeps, self-administered football tipping and lottery syndicates); and present yourself in a professional manner, including wearing the designated uniform for your agency and required safety gear appropriate to operations. Nothing in this Code of Conduct affects your rights to participate in lawful industrial activities. … 5. Ethical decision making We must ensure that our decisions: are made lawfully, ethically and impartially; promote agency values; align with overall organisational objectives; and are in the public interest. You must consider the implications of your conduct, decisions and actions for yourself, customers, colleagues and Transport. Any information or advice you give or any decisions you make must not lead to personal gain ahead of public interest. If you have delegation to make decisions on behalf of Transport, the decisions must be able to withstand external scrutiny. This includes holding and maintaining adequate records of decisions and actions, including the reasons for those decisions. 6. Conflicts of interest An actual, potential or perceived conflict of interest exists when you could be influenced by a personal interest in the course of your official duties. Conflicts of interest that affect impartial decision making may constitute corrupt conduct. A conflict or potential conflict could arise through a range of personal interests or connections including family, friends and associates, or as a result of financial, employment and/or community or political interests or activities. While these associations would not normally be required to be declared, you may be the only person aware of any actual, potential or perceived conflict and are, therefore, responsible for identifying, disclosing or managing such conflicts in a transparent manner. When considering whether or not there is a conflict, it is important to consider your role, the nature of your work and how others would view the situation. Where a conflict of interest may compromise your ability to perform your role in an impartial manner, the matter must be declared in accordance with the Transport Conflicts of Interest Policy - Personal Interests, Secondary Employment; Gifts and Benefits and agency procedures. You must also: identify methods for managing the conflicts with your manager; disclose the conflict and arrange for it to be registered on your agency's Conflicts of Interest Register; and monitor the conflict and comply with the methods implemented to manage it. Special arrangements apply to staff members who are contesting state or federal elections. In addition to the above all Senior Service staff members (including staff acting in Senior Service roles) are required to make an annual written declaration of private financial, business, personal and other interests or relationships that have the potential to influence, or could be perceived to influence, decisions made or advice given by the staff member. Specific areas of potential conflict of interest are detailed in the following sections of this Code of Conduct: gifts and benefits; and secondary employment. You must not misuse your position or business information to which you have access to secure future employment advantages within and outside your agency, or to benefit any other person or organisation, including former staff. You must be extremely careful when dealing with former staff, and make sure you do not give them favourable treatment or access to corporate information. You must report any attempt by a former staff member to influence you. Failure to disclose a conflict of interest may lead to disciplinary action and may also constitute corrupt conduct as defined in the Independent Commission Against Corruption Act 1988 (NSW). … 12. Bullying, harassment, discrimination and inappropriate workplace conduct We have zero tolerance for bullying, harassment, discrimination and inappropriate workplace conduct. You must treat all colleagues, customers and members of the public fairly, with dignity and respect. The manner in which such behaviour will be managed are set out in the Transport Prevention and Management of Bullying and Harassment Policy, Discrimination Free Workplace Policy and relevant agency procedures. 13. Child protection in the workplace We all have a responsibility to act appropriately when dealing with children. Under the Ombudsman Act 1974 (NSW), a child is defined as a person under the age of 18, and so may include a customer or colleague. Appropriate conduct includes, but is not limited to: reasonable conduct for the purpose of management of a child; and using appropriate language to attract a child's attention for safety purposes. You must report incidents or allegations of inappropriate conduct towards a child to your manager. All reports will be treated seriously and may be investigated and/or reported to the NSW Ombudsman within 30 days of the agency being notified of the allegations. Reportable conduct may include, but is not limited to: assault, ill-treatment or neglect of a child; behaviour that causes psychological harm to a child; and/or any sexual offence or sexual misconduct committed against, with or in the presence of a child (including a child pornography offence or an offence involving child abuse material)."
2. The respondent additionally considered the applicant to be in breach of the Conflicts of Interest Policy, which relevantly provides: "1. Purpose Integrity is one of our core values, and Transport is committed to providing a fair and ethical environment for the conduct of its operations. This Policy outlines the expected standards of behaviour in relation to actual, potential or perceived conflicts of interest which may arise from personal interests, secondary employment and gifts and benefits (including hospitality) to ensure, insofar as reasonably practicable, impartial and transparent decision making when interacting with customers, suppliers and stakeholders. 2. Mandatory requirements All individuals covered by this Policy must perform their duties in a fair and unbiased way, and not make decisions which may be perceived as advancing self-interest or personal gain. Conflicts of interest must be disclosed, and reasonable steps should be taken to avoid these in connection with transport duties and obligations. 2.1 Conflicts of interest A conflict of interest is a situation where an individual covered by this Policy could be influenced, or be seen to be influenced, by a personal interest in carrying out their official duties. A conflict of interest can arise from avoiding losses or gaining advantage for self or others (whether financial or otherwise) and can be actual, potential or perceived. An actual conflict of interest involves a conflict between an individual's duties and responsibilities in serving a transport agency's interest, and the individual's existing private interests. A potential conflict of interest arises where an individual has private interests that could conflict with their official duties in the future. A perceived conflict of interest exists where it appears, or where it is or could be perceived, that an individual's private interests could improperly influence the performance of their official duties, whether or not this is in fact the case. To facilitate transparent and ethical decision making, all individuals covered by this Policy must avoid any actual, perceived or potential conflicts of interest. If an actual, perceived or potential conflict arises, individuals must report the conflict of interest in writing to their manager when the conflict is identified. … 3. Accountabilities 3.1 Staff Member/Contingent Worker 3.1.1 Conflicts of Interest Avoid any situation that could compromise their ability to perform their job impartially. Treat all persons fairly and not show preference to any individual or organisation. Assess their private and personal interests and whether they conflict, or have the potential to conflict, with their official duties and responsibilities. Avoid, where possible, conflicts of interest and manage those conflicts of interest that cannot be avoided in accordance with this Policy and the agency's respective procedure/s. Disclose all conflicts of interests, including potential or perceived conflicts of interest, according to their respective agency's procedure/s. Immediately inform management of any changes which may affect an actual, potential or perceived conflict of interest."

The applicant's submissions

1. The applicant argued "[b]y way of analogy to s 387 of the Fair Work Act 2009 (Cth)" there was no valid reason for the Dismissal and thus the Dismissal is unfair: ROS at par 18. The submissions can be summarised as: 1. There was no valid reason for the Dismissal deriving from the applicant's conduct. In relation to the Allegations, the applicant submitted that there was no conflict of interest. The applicant characterised the searches undertaken as a "background check" and an "administrative task", rather than an investigation that may give rise to a conflict of interest. In the applicant statement in reply, the applicant states (at [6]) that: "I never sought to "investigate" Noah or even speak to him. I merely sought information from Mr Smith as to whether his son had any history of boating safety infractions." The repeated attempts by the applicant to contact the respondent should be understood as an attempt to ensure the information provided to the Water Police was accurate despite Mr Wayne Smith's refusal to provide that information; 1. There was a failure of process leading to the Dismissal. This contention rests upon several grounds: 1. the applicant was not notified of the reason for his termination because, although he was told he breached the Code of Conduct and Conflicts of Interest Policy, he was not told how his dealings with Mr Wayne Smith and Noah Smith breached those instruments; 2. because he was not provided with adequate reasons for his termination, the applicant was not given the opportunity to respond to those reasons; 3. because the respondent did not hold a meeting with the applicant and his union in relation to the Allegations in the Show Cause Letter, he was unable to have a person support him through the Show Cause Process. Further, nobody from the respondent spoke directly to the applicant about the Allegations; 4. the applicant was not warned about unsatisfactory performance before the Dismissal because Bret Ryan did not warn him that he may be conflicted in his dealings with Mr Wayne Smith and Noah Smith. This was despite the applicant informing his manager at the time that he had sent the text message to Mr Wayne Smith about Noah Smith bullying his son; and 5. the size and resources of the respondent, with a dedicated human resource staff, should have been sufficient to enable the respondent to ensure procedural fairness was maintained; and 1. Even if there was a valid reason for the Dismissal, the Dismissal was harsh because the penalty was disproportionate to the misconduct alleged, because of the applicant's age, length of service, work history, lack of disciplinary history and limited prospects for re-employment.
2. In respect of the Additional Concerns, the applicant denies all allegations under the heading "Disrespectful Conduct": applicant statement in reply pars 13-16. The applicant further denies that any messages sent to Mr Ryan were intended to intimidate a witness and he contended that discussing the matter with Mr Ryan was not a confidentiality breach because Mr Ryan was his direct supervisor. The applicant also outright denies "the details of the interaction and conversation" attributed to Kate Dallimore. Together, these denials constitute a complete denial of the Additional Concerns.
3. In respect of the Post-Dismissal Conduct, the applicant submitted that the Dismissal caused him to become reliant on alcohol. The applicant also submitted that his long-term partner of five years left him after the termination, impacting his emotional state. As he stated in the applicant's statement in reply: "31. Unfortunately, alcohol also made me belligerent. I am embarrassed about the post-hearing messages that I fully acknowledge were inappropriate and unprofessional. I do not remember sending any of those messages. Had I not been despondent and blind drunk, I never would have treated departmental managers disrespectfully. 32. While I cannot unsend the messages that I sent post-termination, I can say with certainty that the person that sent those messages is not the same person who admirably and respectfully represented the NSW Public Service for over three decades. That person is also not the person who I am today."
4. In support of reinstatement, the applicant apologises for his conduct and submits that he has found casual work as a truck driver, which has improved his mental health. He also says that he has stopped binge drinking and "sending inappropriate text messages to people".

The respondent's submissions

1. With respect to the validity of the reason for the unfair dismissal, the respondent's submissions dealt with the Allegations separately.

Allegation 1

1. The respondent submitted that the following four instances of inappropriate conduct occurred: 1. carrying out a parallel investigation to that of the Water Police which gives rise to the potential for interference with the Police investigation; 2. repeatedly communicating with Mr Wayne Smith over the period of a month; 3. during the interactions in [73(2)], publicly confronting Mr Smith on 14 October 2022 and referring to his legislative powers on 18 October 2022 to exert pressure on him; and, 4. breaching the Code of Conduct in the below respects: 1. per s 3 - Not behaving in a professional and reasonable manner; 2. per s 3 - Not performing his duties honestly, courteously and fairly; 3. per s 12 - Not treating a member of the public with dignity and respect; 4. per s 13 - Not acting appropriately with respect to a person under the age of 18; and, 5. per ss 5 and 6 - Not acting ethically and impartially and not declaring a conflict of interest.

Allegation 2

1. The respondent contended that an actual or perceived conflict of interest arose in the applicant's investigation of Mr Wayne Smith in circumstances where the applicant had corresponded by text with Mr Smith on 23 February 2022.
2. The respondent pointed to the applicant's alleged failure to identify that the information he provided to Water Police at first instance was incomplete or incorrect, choosing instead to seek new information with respect to Noah Smith. The respondent submitted in the RS: "26. There is a clear inference that the ongoing enquiries by the Applicant were motivated, or could be perceived as being so motivated, by his prior dealings with Mr Smith in relation to the bullying by Noah of his son in relation to his role as a Boating Safety Officer."
3. The respondent pointed to the applicant's failure to cease involvement in the matter and his failure to point out the perceived or actual conflict to the Water Police as evidence that he did not adequately manage the conflict.
4. As to the failings of process alleged by the applicant, the respondent made the following submissions: 1. the respondent did not concede that it was necessary for him to identify how the conduct constituted a breach of policy but submitted that he did so anyway. The respondent's submission rests upon the applicant being provided with the relevant sections of the Code of Conduct and the Conflict of Interest Policy that the respondent considered were breached, and the applicant not providing any indication that he did not understand the breaches and misconduct alleged; 2. the respondent submitted that the applicant was given the opportunity, in the Show Cause Letter of 22 November 2023, to respond to the Allegations, and further that he did so in his response of 12 December 2023; 3. the respondent argued that there is no requirement that employers meet directly with employees who are being investigated by a third party, and pointed to the presence of two support people at his interview of 18 October 2023 to contend that he was adequately supported; and 4. the respondent submits that no warning was necessary as the applicant was terminated for misconduct reasons and not for performance reasons.
5. The respondent contended that, appropriate procedure was followed, and the dismissal was not harsh, unreasonable or unjust.
6. As to the remedy question, the respondent's submissions are that reinstatement is an inappropriate remedy should unfair dismissal be found to have occurred. The respondent relied on Dumas v Industrial Relations Secretary (on behalf of Department of Communities and Justice) [2019] NSWIRComm 1071 at [36]-[40] as authority that trust and confidence is an important factor in considering whether the employer-employee relationship can be re-established. In his view: "46. The Respondent has lost trust and confidence in the Applicant's ability to faithfully and diligently carry out his role - in particular, given the conduct engaged in by the Applicant, the Respondent has no confidence that he will conduct himself appropriately in his dealings with senior members of TfNSW, including by respecting their authority, in his dealings with other agencies or in his dealings with members of the public."
7. In addition, the respondent points to the nature of the applicant's role as one requiring the exercise of independent judgment without direct supervision as a factor in the need for substantial trust.
8. The respondent enumerated the matters undermining trust and confidence as the substantiated Allegations and Additional Concerns, as well as the Post-Dismissal Conduct.
9. Finally, the respondent has filled the role and submitted there are no appropriate roles available into which the applicant may be reinstated.

Unfair dismissal claims under the Industrial Relations Act 1996

1. Section 84 of the Act allows for applications to be made to the Commission by employees who have been dismissed and who claim that their dismissal is "harsh, unreasonable or unjust". To be entitled to any remedy under the Act, as referred to above at [24], the onus is on the applicant to prove that his dismissal was harsh, unreasonable or unjust. However, the respondent must establish that the misconduct it relied on, in fact, occurred.
2. Each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration. As stated by the Full Bench in Corrective Services NSW v Danwer [2013] NSWIRComm 61: "21. …It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: "It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted." "
3. The following observation of Commissioner Newall in Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000 is also informative: "6. The meaning of the words 'harsh, unreasonable or unjust' has been considered in a long line of cases. Glosses have been placed on the terms but in my view [it] is neither necessary nor warranted to go beyond the ordinary meaning of the words, as they are perfectly comprehensible words that sit coherently within the purpose and context of the statute as a whole: Certain Lloyd's Underwriters and Underwriters Subscribing to contract No IHOOAAQS v Cross (2012) 293 ALR 412. A dismissal may be harsh, or unreasonable, or unjust, or all three: Byrne v Australian the Airlines Ltd (1995) 185 CLR 410 at 465."
4. The applicant's submissions identified why he says the Dismissal is harsh but do not differentiate between why he says the Dismissal was unjust or unreasonable. The applicant says the Dismissal is unfair because there was no valid reason, there were substantial alleged failures to provide procedural fairness and because the respondent only commenced the investigation after the deaths of the Smiths.
5. Section 88 of the Act sets out matters to which the Commission may have regard in determining an application under s 84: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account - (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant.

Consideration of the reason for the Dismissal: the Allegations

1. In considering whether there was a valid reason for the Dismissal, I have taken into account the relevant matters set out in s 88, which the legislature has determined may be considered if appropriate.
2. The respondent's reasons for the Dismissal are set out in the letter of termination from Mark Hutchings to the applicant dated 18 January 2024 which is Annexure MH26 to the Hutchings Statement. As set out above at [62], Mr Hutchings refers to, and relies on, the substantiated Allegations as set out in the Show Cause Letter which is Annexure MH23 to the Hutchings Statement, his determination of the relevant breaches of the Code of Conduct, and the Transport Conflicts of Interest Policy, and his determination that the conduct established by the substantiated Allegations "goes to the question of whether Transport for NSW can continue to have trust in [the applicant] as an employee".
3. The substantiated Allegations are set out at [55] and, in summary, are findings that, in the relevant period, the applicant inappropriately exercised his official functions as a Boating Safety Officer whilst improperly engaging in enquiries which concerned Mr Wayne Smith and Noah Smith. Moreover, the applicant engaged in enquiries which concerned Mr Wayne Smith and the young person Noah Smith, without declaring and/or appropriately managing a conflict of interest.
4. I have considered the evidence before the Commission and determined that the reason for the Dismissal, which is based on conduct found to be established and led to the findings that the Allegations were established, has a basis in fact.

Allegation 1 - the applicant inappropriately exercised his official functions as a Boating Safety Officer whilst improperly engaging in enquiries which concerned Mr Wayne Smith and the young person Noah Smith

1. The applicant admits the conduct underpinning Allegation 1 being that he contacted Mr Smith on a number of occasions about Noah Smith and that on 18 October 2022 he sent the text to Mr Smith extracted at [46]. However, the applicant says that such conduct was not improper and was consistent with the duties of his roles as a Boating Safety Officer. The applicant says that when he sent the text referring to ss 117 and 125 of the Marine Safety Act 1998 he believed that he was "assisting the investigating" (see Tcpt p19 at 50) and he was not attempting to intimidate Mr Smith.
2. During cross-examination the following exchange took place between counsel for the respondent and the applicant: "Q. The message you sent on 18 October 2022 at paragraph 24 there,-- A. Mm-hmm. Q. --that's about three weeks after the incident occurred, correct? A. Yes. Q. By then Mr Smith still hadn't answered any of your messages? A. That's correct. Q. And it would be fair to say that you were getting frustrated by his lack of response? A. No. No, that's common practice for people to just be quiet and not give a response. Q. In the message you refer to legislative provisions? A. Yes. Q. What did you mean by caution you accordingly? A. In relation to powers that I had as an authorised officer, that I can compel him to answer questions and there is an offence provided for failing to abide by that. Q. So it was your position that you refer in that text message to sections 117 and 125 of the Marine Safety Act. A. Mm. Q. It's your position that those sections applied in the circumstances, is it? A. I'd have to refresh myself. It's been, obviously, over a year, well over a year since looking at those sections. I'd need to refresh myself to be sure that I perhaps didn't make a mistake in, let's call it, recollection of those sections when I sent that statement, sorry, not statement, when I sent that text to Mr Smith. GALL: Commissioner, if you just pardon me, I just realised I don't have a hard copy of the sections. I might just hand up my iPad once I have those sections on there. … Q. If you just read section 117 to yourself there and then if you - once you finished reading that, scroll down to section 125. A. Sorry, did you ask a question? Q. No, no. A. Right. Q. Just tell me when you're finished reading. A. Yeah, I'm familiar, yes. Q. At the time you sent that text message to Mr Smith, it was your position that those sections applied? A. Yes, that's right. Q. You'd agree with me though, that the section applies where an authorised officer is conducting an investigation? A. Yes. Q. You'll see there that it says that-- A. Yes. Q. --in the opening words, and also in circumstances where a vessel's been boarded or stopped? A. It says, "or in connection with any vessel stopped or boarded but not boarded." Q. That's what I said, boarded or stopped. A. Yes, but it doesn't mean that I stopped the vessel. Q. No, no, I wasn't suggesting that, but you weren't conducting an investigation? A. Correct. Q. You obviously didn't stop or board the vessel Noah was on? A. Mm. Q. You weren't present? A. That's correct. Q. You don't know if anyone stopped or boarded the vessel? A. Pardon? Q. You don't know if anyone stopped or boarded the vessel? A. No, that's correct. Q. So it's the case, isn't it, that those sections didn't apply to your inquiries of Mr Smith? A. I don't believe so because it's a general investigative power and it's in connection with any vessel stopped or boarded but it doesn't have to be, and it's simply, 117B, make inquiries of any person. Q. So your position is that even though you weren't conducting an investigation,-- A. I was contributing to part of an investigation, so therefore, in part, I could potentially be assisting to conduct an investigation. Q. Well, Mr Tucker, you've agreed with me that you weren't conducting an investigation. Are you now saying that's not right? A. All right. No, I'm saying I was assisting the investigating. Q. So sitting here today, your position is that it wasn't incorrect for you to refer to those sections? A. Sorry, until when? Q. Sitting here today-- A. Yes. Q. --your position is still that it wasn't incorrect for you to refer to those sections? A. Yes, there may be another section that I should have referred to, perhaps. SENIOR COMMISSIONER: Sorry, can I clarify. WITNESS: Sorry. SENIOR COMMISSIONER: You're saying that you had power under 117? WITNESS: Had power under the Marine Safety Act throughout, yes, and there may be other provisions within the Act that perhaps may have been more appropriate to refer to. At the time of sending that text, 117 was what simply came to mind because I was dealing with it day in and day out. GALL Q. You didn't just, of course, refer to that section and power under that, you also sought to draw Mr Smith's attention to the offence provision? A. Penalties for failing to comply, yes. Q. And that penalty, of course, would only apply if you were properly exercising your powers under that section, correct? A. That - that would be correct, yeah." (Tcpt p 17 at 37 - p 20 at 32)
3. The applicant submitted, as set out at [68(1)] above, that there was no valid reason for the Dismissal deriving from his conduct because the searches were undertaken as a "background check" and an "administrative task", rather than an investigation that may give rise to a conflict of interest. In the applicant statement in reply, the applicant states (at par 6) that: "I never sought to "investigate" Noah or even speak to him. I merely sought information from Mr Smith as to whether his son had any history of boating safety infractions."
4. The applicant asserted that the repeated attempts by him to contact the respondent should be understood as an attempt to ensure the information provided to the Water Police was accurate despite Mr Wayne Smith's refusal to provide that information.
5. The applicant has sought on the one hand to explain his purported use of statutory powers on the basis that he was assisting with the investigation such that the provisions of the Marine Safety Act applied, and on the other hand, that he was not investigating Noah Smith just performing and administrative task. There is a tension between these two positions which is unhelpful to the applicant's case.
6. The applicant also confirmed in cross-examination that he had a good knowledge of "marine legislation": Tcpt p11 at 42-45 and the "relevant government polices": Tcpt p 11 at 47-49.
7. The applicant was taken to Annexure MH17 to the Hutchings Statement: Tcpt p 12 at 35-40 which is the Marine Investigations Policy and the Conflicts of Interest Policy at MH20: Tcpt p 12 at 42-46, and he confirmed his understanding of these policies.
8. The Marine Investigations Policy at s 3.1 contains a table which sets out whether the Police, the Maritime Investigations Unit ("MIU"), or Senior Boating Safety Officers ("SBSOs") should undertake investigations depending on the circumstances or seriousness of the accident/incident. Under this policy, Police or MIU investigate critical incidents, MIU or SBSOs investigate Serious incidents and SBSOs investigate Moderate incidents. Boating Safety Officers may assist the SBSOs: see MH17 to the Hutchings statement.
9. It is in my view, clearly apparent from the email from Sgt Etches to the applicant sent on 27 September 2022 at 3.24 pm that the NSW Police were undertaking the investigation into the incident on the Sandon River on 26 September 2022: see MH14 to the Hutchings statement. I have concluded from the material before me, and from the applicant's evidence of his experience and expertise, that someone with the experience of the applicant would not be confused as to which entity was undertaking the investigation.
10. It is also apparent from the email sent by the applicant to Sgt Etches on 28 September 2022 at 7.33 am that the applicant was assisting the NSW Police by providing the requested information; and he was not undertaking an investigation himself. The applicant described the searches as an "administrative task" or a "background check" and stated that his attempts to contact Mr Wayne Smith were in order to ensure accuracy of the information provided. It is not apparent from that email that the applicant intended to take any further action, by way of example, he did not tell Sgt Etches he intended to follow up on the lack of records in relation to Noah Smith and he was not requested nor required to do any investigation of the accuracy of the records.
11. I agree with the respondent that the action that the applicant should have taken if he were concerned about the accuracy of the information that he was providing to the NSW Police about Noah Smith, was to inform the Police of his concern, not to continue to pursue the matter with Noah Smith's father or otherwise.
12. Mr Ryan did not give evidence in the proceedings before me and as such, his evidence can only be given significant weight if there is no denial or contradiction of his evidence to the investigator or if there is supporting or corroborating evidence. There is no direct evidence to support Mr Ryan's statement to the investigator that the applicant said that he knew Noah was driving, and this statement is denied by the applicant. However, in his response to the Show Cause Letter, the applicant refers to a "cover-up" which is consistent with the statement Mr Ryan made to the investigator. Accordingly, it is open to me to accept Mr Ryan's evidence to the investigator on this point. Further, other elements of the information Mr Ryan gave to the investigator are corroborated at least by circumstantial evidence. By way of example, Mr Ryan acted consistently with him being requested by Sgt Etches to tell the applicant to stop undertaking enquiries about Noah Smith's boating record. I have concluded that the applicant did believe there was a cover-up in relation to the accident on the Sandon River, and that the coverup involved Noah Smith. It is not necessary that I form a view as to whether the applicant believed specifically that Noah Smith was driving one of the boats.
13. What the applicant has tried to portray as tenacity and diligence, was well beyond the expectation of a Boating Safety Officer acting appropriately when providing assistance to the NSW Police.
14. I agree with the respondent's findings of four instances of inappropriate conduct summarised at [73].
15. I am satisfied on the balance of probabilities and noting the seriousness of the allegation that the applicant undertook a "parallel investigation" on a limited basis in respect of Noah Smith's maritime records motivated at least in part by what he referred to as a "cover up".
16. Given the applicant's admissions, I am satisfied to the appropriate standard that the applicant repeatedly communicated with Mr Wayne Smith over a period of a month about Noah Smith.
17. I am further satisfied to the required standard that the applicant publicly confronted Mr Wayne Smith on 14 October 2023 and sent the text message on 18 October 2023 set out at [46] referring to his legislative powers.
18. I consider that the text message sent by the applicant on 18 October 2022 containing a reference to alleged powers and penalties was a misuse of the applicant's asserted statutory power. I have decided that the applicant was carrying out a "parallel investigation". For the sake of clarity, I do not accept that he was empowered to undertake such an investigation, and I do not accept the applicant's evidence or submissions that he considered that he was undertaking an investigation in accordance with the Marine Safety Act so that he was not intentionally seeking to mislead Mr Wayne Smith.
19. I am satisfied that the applicant breached the relevant sections of the Code of Conduct set out at [73(4)]. I note that one of these breaches, that of cl 5, involves a failure to declare a conflict of interest and that is addressed further below.
20. I am satisfied that the applicant "inappropriately exercised his official functions as a Boating Safety Officer whilst improperly engaging in enquiries which concerned Mr Wayne Smith and the young person Noah Smith" and that this amounts to serious misconduct.

Allegation 2 - engaged in enquiries which concerned Mr Wayne Smith and the young person Noah Smith, without declaring and/or appropriately managing a conflict of interest

1. The applicant admits that he sent the text message to Mr Wayne Smith on 23 February 2022 about Noah Smith allegedly bullying the applicant's son.
2. However, the applicant asserts that Allegation 2 is not made out because: 1. the matter of the alleged bullying resolved shortly after the applicant sent the text message and therefore no conflict of interest existed by September 2022; 2. he was not told how he breached the Code of Conduct; and 3. Mr Ryan did not caution him that he may be conflicted in conducting a background check on Noah Smith.
3. Employees' responsibilities in respect of conflicts of interest are set out at cl 6 of the Code of Conduct extracted above at [66] and cll 2.1 and 3.1.1 of the Conflicts of Interest Policy extracted above at [67]. The respondent determined that the applicant was in breach of his responsibilities under these documents.
4. The applicant confirmed his understanding of the Conflicts of Interest Policy during cross-examination: Tcpt p 12 at 42-43. The applicant said the following about the Code of Conduct: "A. I can only say that I was aware of the code of conduct. I would have read - read the code of conduct. A level of understanding was probably quite cursory, in relation to this particular code of conduct, as there are hundreds of codes of conduct and hundreds of policies and hundreds of documents to which we are expected to be able to be familiar with and abide by. So I will answer your question - yes, I am aware of it and understand it." (Tcpt p 12 at 24 - 30)
5. The Code of Conduct says at cl 6: "An actual, potential or perceived conflict of interest exists when you could be influenced by a personal interest in the course of your official duties. Conflicts of interest that affect impartial decision making may constitute corrupt conduct. A conflict or potential conflict could arise through a range of personal interests or connections including family, friends and associates, or as a result of financial, employment and/or community or political interests or activities. While these associations would not normally be required to be declared, you may be the only person aware of any actual, potential or perceived conflict and are, therefore, responsible for identifying, disclosing or managing such conflicts in a transparent manner. When considering whether or not there is a conflict, it is important to consider your role, the nature of your work and how others would view the situation."
6. I do not agree with the applicant that because he considered the issue between his son and Noah Smith had been resolved that there was no perceived conflict of interest.
7. The Show Cause Letter set out the content of the text message the applicant sent to Mr Wayne Smith on 23 February 2022 and the relevant sections of the Code of Conduct and Conflicts of Interest Policy.
8. The respondent's policies and procedures about conflicts of interest referenced and extracted above require a declaration by the employee to the employer where potential or perceived conflicts exist between an employee's personal or private interests and the employee's capacity to perform their role in a transparent manner so that the conflict can be managed appropriately.
9. A fair-minded reasonably informed observer, appraised with the knowledge of the email of 23 February 2022 to Mr Wayne Smith from the applicant, would in my view, perceive a potential conflict of interest between the applicant's personal interests in relation to his son and Noah Smith's relationship and his official duties in relation to an accident involving Noah Smith.
10. A Boating Safety Officer with the enforcement and investigative powers of the applicant, who has confirmed his understanding of the relevant policies dealing with conflicts of interest should have sufficient understanding of the concept of "conflict of interest" that the interactions between the applicant and Mr Wayne Smith about their sons, created, at a minimum, a perceived conflict of interest between the applicant's private interests and his "investigation" of Noah's boating history. The applicant should have been alive to the potential or perceived conflict of interest and declared the conflict in accordance with his obligations, despite the applicant's view expressed to the Commission that he had considered that the bullying had ceased after the interaction and that there was no longer an actual conflict. What the applicant subjectively believed is not determinative of a perceived conflict of interest.
11. I agree with the respondent that "there is a clear inference that the ongoing enquiries by the applicant were motivated, or could be perceived as being so motivated, by his prior dealings with Mr Smith in relation to the bullying by Noah of his son in relation to his role as a Boating Safety Officer".
12. I do not consider a caution from Mr Ryan was necessary for the applicant to identify the conflict. While it is a matter that may deserve the employer's consideration in respect of Mr Ryan, I do not consider the fact that Mr Ryan did not warn or caution the applicant at or around the time he sent the email of 18 October 2022 ameliorates the applicant's conduct in not notifying the conflict at the time of the accident.
13. I agree with the respondent that the applicant should have identified the conflict of interest and notified his employer. The applicant should have done this immediately upon being asked by the Water Police to provide information about the boating accident. Conflicts of interest, real and perceived, can only be managed if the employer and other relevant parties are made aware of the actual, potential or apparent conflicts.
14. The failure to notify the conflict was made worse by a decision by the applicant to undertake a "parallel investigation". As I have stated above, the applicant should simply have informed the Water Police of his concerns about the Maritime records being incomplete and, unless requested by the Police, ceased his involvement.
15. I do not accept that the Show Cause Letter materially failed to set out how the applicant had breached the Code of Conduct. I am satisfied that the essential bases of the Allegation of the failure to declare a conflict of interest were known to the applicant when he was required to reply to the Show Cause Letter. The applicant was given an opportunity to respond to this Allegation and was given sufficient information about the details of the alleged conduct to do so.
16. I am satisfied to the requisite standard that Allegation 2 had a basis in fact.

Was there a "valid reason" for the Dismissal?

1. The applicant's role and duties prior to the Dismissal required him to exercise significant levels of judgement. The power to issue infringement notices should be reposed only in those in whom the employer has complete trust and confidence.
2. I am satisfied that the Allegations had bases in fact, and I am satisfied that the applicant had an opportunity to make out a defence or to give an explanation for his behaviour in response to the Show Cause Letter and the Allegations. Consequently, I do not agree with applicant's submission that there was no "valid reason" for the Dismissal.

Procedural fairness

1. The applicant asserts a number of procedural deficiencies that he says make the Dismissal unfair.
2. First, the applicant says that he was not notified of the reason for his termination because, although he was told he breached the Code of Conduct and Conflicts of Interest Policy, he was not told how his dealings with Wayne and Noah Smith breached those instruments. I have considered and rejected this above at [113] - [126].
3. Second, the applicant says he was not provided with adequate reasons for his termination, and he was not given the opportunity to respond to those reasons. As set out above, the respondent has established to my satisfaction that Allegations 1 and 2 had bases in fact. I do not accept that the applicant was not provided with adequate reasons for the Dismissal as these reasons were clearly set out in the Show Cause Letter.
4. The applicant asserts that because the respondent did not hold a meeting with him and his union in relation to the Allegations in the Show Cause Letter, he was unable to have a person support him through the show cause process which makes the Dismissal procedurally unfair. Further, nobody from the respondent spoke directly to the applicant about the Allegations.
5. I agree with the respondent that this submission is misconceived. The applicant was in receipt of the Allegations, had knowledge of the proposed penalty and was represented by his union. There is no requirement that an employer directly hold meetings with an employee in circumstances where allegations are being investigated by an external third party. The investigation of the Allegations was conducted by an independent third party - Pinnacle Integrity and the applicant was interviewed by Pinnacle Integrity on 19 October 2023.
6. The applicant was offered to bring a support person to the interview and brought two support people to it - Renee Hallowell and MUA Assistant Branch Secretary, Nathan Donato: applicant first statement at par 29.
7. Conversations about the termination of the applicant's employment occurred in writing after this date. It was open to the applicant to have a support person assist him with his responses. I agree with the respondent that there was no requirement that anyone from the employer meet with the applicant.
8. The applicant says he was not warned about unsatisfactory performance before the Dismissal. This was not a performance issue but rather a conduct issue.
9. The applicant says that the size and resources of the respondent, with a dedicated human resource staff, should have been sufficient to enable the respondent to ensure procedural fairness was maintained. This submission reflects s 387(f) of the Fair Work Act. To the extent it is relevant, I accept that the respondent cannot rely on any argument that there were not sufficient resources to provide procedural fairness to the applicant during the investigation and leading up to and at the time of the Dismissal, but given my other findings about the alleged procedural deficiencies this is irrelevant.
10. The applicant's "theory of the case", raised in oral submissions, is that the investigation was only commenced, with the consequence of the Dismissal, because of the tragic deaths of the Smiths.
11. On the basis of the time it took to investigate the applicant's conduct, and the timing of the investigation, it is possible to infer that the timing of the Smiths' deaths impacted on the decision to investigate the applicant's conduct. However, there is no direct evidence to support such an inference and it was an assertion put only at the arbitration with no notice to the respondent. A finding that the respondent, a representative of the Crown, only commenced a misconduct investigation of an officer with the statutory powers of a Boating Safety Officer to avoid criticism would be a significantly serious finding. I am not able to make such a finding based on inferences from the timing of the investigation and I do not accept that if the Smiths had not died in the manner that they did that the investigation would never have been undertaken on the basis of the evidence that has been put before the Commission.
12. In any event, as I have accepted that the conduct complained of, and investigated, has been established to my satisfaction, and I have accepted that conduct amounted to misconduct which was a valid reason for the Dismissal, then even if I were to infer from the timeline that the respondent only investigated the applicant's conduct because of the Smiths' deaths, this would not necessarily make the Dismissal unjust or unreasonable.
13. As his Honour Deputy President Sams stated in Foster and Woolworths Limited [2000] NSWIRComm 208: "… it is now well settled law that proven deficiencies in the process are not necessarily fatal to an employer's decision to summarily dismiss an employee. It is the seriousness of the allegations, if proven, which, in my view, will be decisive in establishing whether the employer's decision to dismiss the employee was reasonably open to it."
14. The parties did not take me to any authorities about delay. However, this Commission has considered delays by NSW agencies in commencing interviews with witnesses and completing investigations (see for example New South Wales Teachers Federation (on behalf of Anthony Mossfield) and NSW Department of Education and Training [2005] NSWIRComm 464 at [43]) and found that the delay in conducting formal interviews did not, on its own, make the dismissal unjust or unreasonable.
15. Although the delay in commencing the investigation was not best practice, in circumstances where there was no impact on the evidence available to the employer or the Commission about the applicant's conduct, as much of the conduct was admitted, the applicant has not established that the delay materially impacted the final outcome of the investigation or the decision to dismiss, such that it could clearly be said to have produced an unjust or otherwise unfair or questionable result.
16. I am similarly unconvinced that the delay in and of itself, and the impact on the applicant of this delay when the applicant was being paid during this period, made the decision to dismiss the applicant with notice unjust or unreasonable.

Harshness

1. The applicant says that the Dismissal is harsh due to his "23 years of impeccable service to the [Crown], and because of [his] age and unlikelihood of him gaining comparable work in the maritime industry".
2. As Commissioner McDonald set out in Dey v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Community Services) (No 2) [2023] NSWIRComm 1094: "96 Guidance as whether or not a dismissal is harsh was given by the Full Bench (Walton J, VP, Haylen J and Bishop C) in Department of Health v Perihan Kaplan [2010] NSWIRComm 65 at [29]: "We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of 'harshness' it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows: 'In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence.'" 97 The reference to Little in the above quotation is a reference to Little v Commissioner of Police (2002) 112 IR 212. 98 In Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 McColl JA made the following observations at [156]: "I have already referred to the tripartite test posed by s 84 of the IR Act as to whether an employee's dismissal was 'harsh, unreasonable or unjust' as explained in Byrne. In addition to the matters there identified, in considering the possibility that dismissal might be 'harsh', (although not unjust or unreasonable), it is necessary not only to identify any misconduct on the employee's part said to have justified the termination, but also to 'weigh in the balance any "mitigating circumstances"...including length of prior employment, the employment record and favourable character considerations'." 99 In Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 the Full Bench remarked: "Bearing in mind the foregoing discussion of principles, we will consider the severity of the penalty inflicted on the respondent for his misconduct having regard to relevant mitigating circumstances. In other words, it is necessary to consider whether the dismissal was disproportionate to the gravity of the misconduct both in itself and when examined in the light of mitigating circumstances including the personal and economic circumstances of the respondent."
3. The applicant has sought to justify his zealousness and his use of the threat of penalty on the basis of a construction of the Marine Safety Act while under cross-examination, that he was "assisting with an investigation". In considering the harshness of the Dismissal, I have taken into consideration that the nature of the applicant's role requires the exercise of independent judgement without direct supervision and that the applicant has asserted statutory powers against someone in respect of whom he should have declared a conflict of interest in a manner inconsistent with the trust required of him, and the lack of insight in respect of his conduct displayed by him in his oral evidence.
4. I have also noted that the applicant expresses remorse for the Post-Dismissal Conduct and has sought to explain his Post-Dismissal Conduct on alcohol use. I have taken into consideration the applicant's evidence about his commitment to professionalism if he were reinstated.
5. I accept that the applicant will have difficulty obtaining employment in a maritime role at a level consistent with a Boating Safety Officer, particularly in a regional area, and particularly at his age. I accept the detrimental impact on the applicant which he says resulted in the Post-Dismissal Conduct.
6. While the parties were not in agreement about the applicant's "unblemished record", I accept that 23 years of service with two informal counselling sessions and a Final Warning which was withdrawn is a good conduct record and I have not taken these informal counselling sessions or withdrawn Final Warning into consideration in determining whether the Dismissal was harsh in all of the circumstances.
7. Despite the length of good service to the Crown by the applicant, his age and prospects of similar employment and other factors referred to above, I have decided that the Dismissal was not harsh when the overall context of the misconduct, including the misuse of purported statutory powers, is considered.

Conclusion

1. After a thorough consideration of the evidence presented by the parties, I have determined the two factual matters in dispute set out at [14] as follows: 1. the applicant's conduct in contacting Mr Smith in the period 18 September 2022 to 18 October 2022 amounted to a breach of the Code of Conduct and the Conflicts of Interest Policy; and 2. the applicant engaged in misconduct.
2. I agree with the respondent that the nature of the applicant's role is one which requires the exercise of independent judgement without direct supervision and thus the respondent must hold substantial trust and confidence in the applicant.
3. Consequently, I have also determined that the answer to the first two of the issues the parties agreed were to be determined by the Commission as set out at [13] are: 1. the applicant engaged in misconduct as alleged by the respondent; and 2. the applicant's dismissal was not harsh, unreasonable or unjust in all the circumstances.
4. As I have determined that the Dismissal was not harsh, unreasonable or unjust in all of the circumstances, issues 3 and 4 as set out at [13] which are matters dealing with the appropriate remedy are not applicable.

ORDERS

1. The application in 2024/00065894 is dismissed. N J Constant Senior 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: 05 December 2024