RV and New South Wales Department of Commerce [2009] NSWIRComm 21 (4 March 2009)

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
RV and New South Wales Department of Commerce [2009] NSWIRComm 21

FILE NUMBER(S):
IRC 1324

HEARING DATE(S):
7 October 2008; 3 November 2008

DATE OF JUDGMENT:
4 March 2009

PARTIES:
APPLICANT
RV

RESPONDENT
New South Wales Department of Commerce

CORAM:
Sams DP

CATCHWORDS: Termination of employment - unfair dismissal - carpenter involved in school maintenance - issues of literacy - long period of service - allegations of misconduct - convictions for serious offences - failure to report convictions for serious offences - allegations of inappropriate behaviour towards female staff - Public Sector Regulations and Code of Conduct - orders suppressing name of applicant - Administrative Decisions Tribunal decision and orders - past criminal history not reported - child protection declaration - employment screening checks- restrictions on applicant working in schools - interim orders operated for two years - final orders - involvement of employer in ADT proceedings - employer's knowledge of convictions - allegations not put to employee until interview - disciplinary investigation - independent investigator appointed - findings of investigator - applicant given opportunity to respond to allegations - meeting with Director General - allegations considered in globo - whether applicant denied procedural fairness - reinstatement sought - practicality of reinstatement given ADT's orders.

Held; applicant unaware of requirements of Regulations and Code of Conduct - non disclosure understandable - applicant did not deliberately seek to withhold information - genuine belief that disclosure did not apply to convictions - allegations not proven - convictions and sentences not at high end of seriousness - convictions did not compromise or effect the reputation and standing of the Department - applicant's complete rehabilitation - conduct did not affect work performance - conduct did not strike at heart of employment relationship - respondent's claims of no knowledge of convictions unbelievable - inappropriate behaviour towards teachers - genuine contrition and immediate apology offered - findings of investigator did not justify dismissal - misconduct treated remedially - past conduct not properly considered - allegations either separately or globally did not constitute misconduct warranting dismissal - unreasonable that applicant not told of specifics of allegations until interview - otherwise fair process - full opportunity to respond to allegations - mitigating factors - finding that dismissal was harsh and unreasonable - relief to be ordered - real issues of impracticality of reinstatement - orders for relief deferred - parties directed to confer - further evidence and submissions if failure to agree to appropriate relief - matter adjourned for final disposition.

LEGAL REPRESENTATIVES
APPLICANT
Mr C McGee of Counsel
Solicitor: Mr C Milne
Craig Milne & Company Solicitors
RESPONDENT
Ms E Brus of Counsel
Solicitor: Ms H Cameron
New South Wales Department of Commerce

CASES CITED:
Alexander v Commissioner of Police [2009] NSWIRComm 3
Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385
Blyth Chemicals Limited v Bushnell [1933] HCA 8; (1933) 49 CLR 66
Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288
Busways v Johnson (1994) 55 IR 255
Byrne & Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410
Concut Pty Ltd v Worrell (2000) 103 IR 160
Day v Lumley Life Limited (1999) 90 IR 70
Humphries v Cootamundra Ex-Services and Citizens' Memorial Club Ltd [2003] NSWIRComm 211; (2003) 128 IR 37
Little v Commissioner of Police (No. 2) (2002) 112 IR 212
National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441
New South Wales Nurses' Association (on behalf of Colin Prior) v South Eastern Sydney and Illawarra Area Health Service (2007) 164 IR 225
Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Elvin Brian Brown) and Department of Juvenile Justice [2008] NSWIRComm 154
Wells v Commissioner of Police (2000) 100 IR 106

LEGISLATION CITED:
Commission for Children and Young People Act 1998
Industrial Relations Act 1996
Public Sector Employment and Management (General) Regulation 1996
Public Sector Employment and Management Act 2002

TEXTS CITED:

JUDGMENT:

Matter No IRC 1324 of 2008

RV and New South Wales Department of Commerce

Application by RV re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 A critically relevant and unusual element of this case concerns the applicant's earlier proceedings in the Administrative Decisions Tribunal (ADT) under the Commission for Children and Young People Act 1998 ('the child protection legislation') and interim and final orders made by that Tribunal in 2005 and 2007 respectively. As is the practice in that Tribunal, (and also in similar proceedings in the Industrial Relations Commission of New South Wales - and for obvious reasons), the applicant in the ADT proceedings was given a pseudonym, 'RV'. During these proceedings, the Commission raised with the parties whether any reference to the applicant's name, either in the transcript or in any tendered document, might be in breach of the suppression orders of the ADT or, at the very least, be in conflict with such orders. For abundant caution, I invited the parties' Counsel to prepare draft consent orders under s 164A of the Industrial Relations Act 1996 ('the Act'). Accordingly, I made the following consent orders:

The Industrial Relations Commission of New South Wales in Matter Number IRC 1324 of 2008 hereby orders that:

As a result, the applicant in these proceedings will be identified generally, and in all documents referred to in this decision, as 'RV' or the applicant. A teacher named in the evidence will also be given a pseudonym.

2 The applicant was employed for almost 23 years by the New South Wales Department of Commerce ('the respondent') (or its predecessor Departments), primarily as a carpenter engaged in school maintenance. The applicant was suspended from duty, with pay, effective from 21 May 2008, pending an investigation of the following three allegations of misconduct:

· Convictions for offences punishable by imprisonment of 12 months or more, including a conviction for the offence of larceny in 1997 and a conviction for assault of a police officer in 2004;

· Allegations of inappropriate behaviour at the Long Neck Lagoon Education Centre on 11 March 2008.

3 On 10 July 2008, the applicant was advised by the Director General of the respondent, Mr John Lee, that he had formed the opinion that the applicant had engaged in the misconduct as alleged. The applicant was invited to submit a written submission to the Director General before he considered what penalty should be imposed. He was also offered a meeting with the Director General, in the company of his Union representative or support person. That meeting was held on 23 July 2008, and the applicant's wife attended with him. No formal record was taken of the meeting and it is unclear as to how long it lasted. The Director General reaffirmed his decision that the misconduct had occurred and that the applicant's employment should be terminated. By letter dated 28 July 2008, the applicant was directed to resign from his position by 8 August 2008, or his employment would be terminated. Despite engaging legal representation and his solicitors seeking a deferment of the dismissal decision, the applicant's employment was terminated on 8 August 2008.

4 It is relevant to note that the applicant was not an officer in the New South Wales Public Service, but was engaged as a Ministerial employee. Nevertheless, the respondent claimed it applied the procedural fairness requirements in Pt 2.7 Ch 2 of the Public Sector Employment and Management Act 2002. It is readily apparent that in terminating the applicant's employment, the respondent relied upon s 41 and s 48 of that Act and cl 100A of the Public Sector Employment and Management (General) Regulation 1996 ('the Regulation'). The relevant provisions of the Act are expressed as follows:

5 The respondent also relied on the provisions of the 1995 and 2005 Departmental Codes of Conduct and Ethics. At page 8 of the 1995 Code is the following reference:

The 2005 Code did not specifically replicate the above provision, but rather refers more generally to the standards expected of Departmental employees:

§ We accept responsibility and are accountable for our own actions in accordance with delegated functions, accountabilities and the requirements of this Code.

§ We actively promote confidence in the integrity of public sector administration, especially the Department and always act in the public interest.

§ We seek at all times to achieve excellence in personal and operational performance.

§ We work to protect the reputation of the public sector and do not engage in any activities that would bring the public sector into disrepute.

§ We achieve the highest standards of ethics by treating the Government, our stakeholders, clients, suppliers and each other fairly and professionally.

§ We report suspected instances of corrupt conduct and other forms of inappropriate conduct.

§ We comply with any lawful and reasonable direction by an appropriately authorised officer.

Employment History

6 The applicant is 56 years of age - married with four children. He left school at age 14 after experiencing significant learning difficulties. He has a limited ability to read and write and largely relies on his wife to read or fill out documents for him.

7 The applicant said he recalled completing an employment declaration form when he commenced employment with the respondent in 1985, but said he could not recall being required to complete any form which required disclosure of his criminal history.

8 From 1985 to 2007, the applicant's duties involved carpentry maintenance and repair work on New South Wales Government properties, working as part of a team. In 1987, he was transferred to the Department's Crows Nest office which was responsible for school maintenance in the Ryde, Hornsby and Northern Beaches area. In 1990, he continued this work in the Parramatta, Blacktown and Windsor areas.

9 There is no dispute that the applicant did not disclose two convictions for offences committed in 1997 and 2004. However, the applicant maintained that he could not recall ever being given a copy of the Regulation or any memorandum, or letter explaining its effect.

10 In 1997, the applicant had pleaded guilty and was convicted of the offence of larceny. He was fined $250. The offence involved the theft of eight pieces of timber from a building site near his house. He said he had been drunk at the time. He understood it was a serious error of judgement on his part. In 2004, the applicant was charged with assaulting a police officer in the execution of duties. The applicant claimed the offence arose when eight police officers arrived at his home, without notice, in the early hours of the morning. He said his family were forced into one room while the house was searched. He said he had been very upset, embarrassed and humiliated. The assault occurred when an officer barged in on him while he was using the toilet. He acknowledged his reaction was inappropriate. He had pleaded guilty and was fined $300.

11 On 16 May 2005, the applicant attended a meeting at which his supervisor advised that because of new child protection laws, all employees were required to fill in forms giving consent for an employment criminal screening check and a prohibited employment declaration. The applicant deposed that he had read the form to the best of his ability, but had not been given any instructions on how to fill out the form. He believed that he was only required to make a declaration if he had spent 12 months in gaol for offences involving children. At the time, he didn't understand either of his convictions in 1997 and 2004 applied to these circumstances. Similarly, he didn't believe his conviction in 1976 for the rape of an adult woman and subsequent gaoling for six years, needed to be declared. In August 2005, a Department Manager informed the applicant that his criminal history check had resulted in him not being allowed to continue working on school sites. He said the Manager, Mr Mick Gray, advised him to seek an exemption order from the ADT. The applicant believed that the Department would have been aware of his 1997 and 2004 convictions when the employment screening check was undertaken.

12 The applicant applied for an ADT exemption order in late August 2005 and attended an ADT hearing on 12 September 2005. A person, who he understood to be Mr Gray, was on a speaker phone during the hearing and he recalled that the Tribunal member explained the terms of an interim order he was proposing and how it would operate. The interim order was made and expressed in the following terms:

13 The applicant thereupon returned to work and for three months his work involved sandstone cutting at the Department's Sandy Point and Alexandria sites. He was then directed to perform yard duties at the Doonside office. The applicant said he went back to the ADT during this period and Mr Gray was again on speaker phone discussing the terms of the interim order with the Tribunal member. The applicant was told he could return to work as a school carpenter, with Mr Brian Mory as his supervisor. He said that this was arranged with the Department's approval. Mr Mory would pick him up in the morning and they would both drive to the site scheduled for work. Mr Mory would supervise the work and it was their practice to work together, or in close proximity to each other. The applicant believed that they had worked efficiently and effectively and that he had complied with the interim order of the ADT, such as to undertake work in the company of another adult employee.

14 The primary hearing of the ADT application took place in May and June 2007, and a decision of Britton DP was handed down on 19 December 2007. The ADT's final orders were as follows:

a. That he not apply for, undertake or remain in 'child-related employment' as defined by section 33(1) of the Commission for Children and Young People Act 1998, other than that which he currently undertakes in the course of his employment with the NSW Department of Commerce;

b. That in the course of the employment referred to in paragraph (a) above he work at all times in the company of another adult;

15 The applicant said that he was not at the ADT when the decision was handed down and his solicitor faxed him the decision in late December 2007. The applicant had two weeks leave around this time. He assumed the ADT would provide the orders to the respondent and when he returned to work in January 2008, he gave a copy of the orders to his immediate supervisor, Mr Mory. After reading the orders, Mr Mory had said words to the effect of 'okay, well nothing really needs to change'. The applicant said that he continued to perform work according to the ADT's final orders.

16 In his reply affidavit, the applicant said that the final order of the ADT had only required him to provide a copy of the orders (not the reasons) to his immediate supervisor (Mr Mory), which he had done. The applicant had understood that it was the responsibility of the Registrar of the ADT to provide the orders to the Department. However, he was unaware if that had ever happened.

17 In cross-examination, the applicant said that he first read the employment declaration form during a meeting in 2005 with a number of other carpenters. He had not asked anyone at the meeting what the form meant, nor had anyone read it to him. He said that he understood that a criminal record check would be made, but he didn't believe it would show up his earlier convictions. The applicant did not advise his Manager of his past record because he didn't think that he had to. When he had read the reference about being in gaol for 12 months or more, and as he had only been fined for the convictions in 1997 and 2004, he didn't believe it was necessary to disclose these convictions.

18 The applicant said that soon after this meeting, Mr Gray had phoned him to say something had come up (during the screening check) and he should go on recreational leave until it had been sorted out. He claimed that it was Mr Gray who had suggested he go to the ADT. Shortly after returning from leave, the applicant told Mr Gray he had commenced proceedings in the ADT to have himself exempted from the prohibited persons list.

19 The applicant referred to the ADT proceedings leading to the interim order and said that Mr Gray had been contacted by the Tribunal and that he understood a female barrister was there representing the Department. He was sure that she had said that she was from the Department and she had something to do with the case.

20 In compliance with the ADT's interim order, the applicant said that he worked together with Mr Mory at all times, including travelling to and from sites. When Mr Mory was sick, he would take either recreation leave or sick leave at the same time. Rostered days off and annual leave were also taken at the same time. The applicant said that this occurred on all occasions. He said that a team leader never left the site during a job, and that he had never been left alone when either he, or Mr Mory, went to pick up equipment from the truck. The applicant understood that the same arrangements applied in other carpentry teams. In cross-examination, the applicant was asked if he had ever lost his licence? He said that he remembered he may have had a restricted work licence at some point.

21 The applicant made the following comments during his evidence:

22 The applicant said that he didn't want anyone to know about his past, particularly as the rape conviction had been 30 years ago. He emphasised again that he did not believe that the 1997 and 2004 convictions had to be reported, because the declaration form had mentioned 12 months gaol. He denied that he deliberately withheld the information because his job was at risk. The applicant deposed that he had never been given the Department's Code of Conduct, had never seen it and no one had ever discussed it with him.

23 The applicant said that in the disciplinary meeting with Mr Lee on 23 July 2008, Mr Lee didn't appear to be interested in the reasons for his convictions. The applicant accepted that, notwithstanding that he was drunk at the time, this did not explain away the theft in 1997. He realised he was wrong and had owned up to it. In 2004, the police had provoked him and he pleaded guilty because he couldn't afford legal representation and he expected a fine (which he received). Nevertheless, he accepted that it was a serious offence.

24 The applicant acknowledged that, in working for the Department, he was required to conduct himself properly, honestly and truthfully, at all times. He accepted he had not conducted himself properly during the incidents in 1997 and 2004.

The Long Neck Lagoon Education Centre ('Long Neck Lagoon') Incident

25 Between 2005 and May 2008, the applicant worked in approximately 150 primary and high schools in the Blacktown, Windsor and Parramatta areas. On 11 March 2008, the applicant and Mr Mory attended the Long Neck Lagoon Education Centre to perform routine inspections and maintenance of the doors and windows at the Centre. The applicant was alleged to have acted inappropriately towards female staff members at the Centre; in particular, that he:

· ran his eyes up and down a female staff member when asked 'what are you here to check out';

26 As to the first allegation, the applicant said that, at the time, he could not recall the incident involving the female staff member, and if he had spoken to her, he had not meant to be offensive or intimidating or to cause her embarrassment.

27 In respect to the second allegation, the applicant said that when he and Mr Mory had completed their work, they entered a demountable office and while Mr Mory was completing the paperwork, the applicant had sat at a desk waiting for him. On the desk was a small walkie talkie. He picked it up and said something like 'come in smokey bear' or 'yogie bear'. He hadn't realised it was turned on. The applicant claimed that he said he was just 'mucking around'. He had also looked at a book about parrots which was on the desk and had engaged in general conversation with a staff member about releasing a tortoise into the lagoon, which the staff member had said was polluted. The applicant said he was sorry for any offence he may have caused by his actions.

28 In cross-examination, the applicant recalled that in a meeting with Mr Gray on 19 March 2008, he had been told that a complaint had been made against him. Mr Gray had told him to remain in the office while the complaint was sorted out. He couldn't recall if Mr Gray had mentioned the orders of the ADT during the meeting. The applicant agreed he was agitated and upset during the meeting, because he was not told what the complaint was about. He denied that he intended to go to the site and sort it out. Rather, he said that if he had offended anyone, in any way, he was intending to apologise. An investigation was conducted and the applicant said that he had fully cooperated with the investigator, Mr David Madden, who had conducted an interview with him on 3 April 2008. The applicant agreed that he was given every opportunity to explain to Mr Madden what had happened. He was also aware that Mr Mory had been interviewed. The applicant believed that it was all a misunderstanding and his words had been taken out of context. The applicant said that despite the ADT orders, he had wanted to go out to the site and see what the problem was 'face to face'. He said that if the staff had said they didn't want to talk to him, he would not have gone.

Applicant's further evidence

29 The applicant said that he declined to put in written submissions in response to Mr Lee's letter of 10 July 2008, because of his limited ability to read and write. When he had spoken to Ms Hume, General Manager - People Performance and Development, she assured him he could put his side of the story directly to the Director General.

30 The applicant agreed that he had been the subject of verbal complaints in February 1996 and April 1997, which had been investigated and resolved. He also received a letter of warning in 1998 and another letter of warning in July 2007 over a safety issue.

31 The applicant was asked about an incident at Matthew Pearce Public School in May 1997, following which he had received a letter from Mr Gray advising him that while a particular child had been out of line during the incident, he should not engage in any discussions with students and report any problems with students to the school authorities. The applicant said that he did not consider this to be a warning letter.

32 Despite his Counsel's objection, the applicant was asked about new allegations against him in a letter from the respondent dated 2 October 2008. (The objection was overruled and the letter was marked as an 'MFI'.) The applicant said that he had not seen the letter and no one had spoken to him about it. When shown the letter, the applicant now understood that it was being alleged that he, and Mr Mory, had claimed to be at work on a number of occasions, when they had not. The applicant agreed that if this allegation was true, it would be dishonest.

33 In his reply statement, the applicant said that prior to his termination of employment, he was earning $913.25 gross per week. He had unsuccessfully applied for numerous positions and was concerned that at 56 years old and having worked for the same employer for 23 years, he would be limited in finding other alternative work. In addition, the applicant has an 18% permanent impairment of his back, making it difficult for him to undertake heavy lifting or bending. He claimed that his injury did not affect his capacity to work in a team as a carpenter. The applicant very much wanted to be reinstated in terms of supporting his family. Work was an important source of pride and satisfaction to him, he said.

Respondent's Evidence

34 Mr Michael Gray is the Business Resource Manager in the Heritage and Building Services Division of the New South Wales Department of Commerce. He is responsible for Human Resources in the Division. The Group has 185 staff - 125 wages staff, including 22 apprentices. The Building Group has 35 wages staff, involved in work under an asset maintenance agreement with the Department of Education and Training. The agreement expires in June 2009, but has a 12 month option. This work involves maintenance at 350 schools. The Group is not funded by Treasury and competes for work with the private sector. Mr Gray's affidavit traced the history of the applicant's employment (which was not disputed).

35 Mr Gray said that in 2005, when the applicant was required to complete the various documents associated with the child employment declaration, he had not disclosed any details of his past criminal convictions, nor had the Department's Working with Children Screening Check disclose any details of his convictions. Mr Gray maintained that the applicant had failed to inform the respondent of his convictions in 1997 and 2004, as required by the Department's Code of Conduct. The Code was in effect at the relevant time.

36 In referring to the interim decision of the ADT on 12 September 2005, Mr Gray deposed that the Department of Commerce was not a party to the ADT proceedings, nor had he been contacted as a witness in the matter. Mr Gray said that when he received the ADT's interim order, he had advised that the Division could not comply with the order.

37 Mr Gray deposed that, shortly after the issuance of the interim order, he had been contacted by a Judicial member of the ADT, who had questioned him about the application of the order. Mr Gray had asked what would satisfy the restriction of 'working substantially in partnership'. Mr Gray said that the Judicial member hadn't offered a time period, but had said that it was the applicant's responsibility to comply with the interim order.

38 In his reply affidavit, the applicant said that he believed the discussion between Mr Gray and the Judicial member of the ADT was that the order would be complied with as long as he continued with the arrangement (with Mr Mory) that had existed before the order was made. He had, in fact, returned to his previous duties.

39 Mr Gray deposed that when he had received the Long Neck Lagoon complaint of 11 March 2008, he had contacted the ADT to see if a final order had been made. On 18 March 2008, he was sent the ADT's decision of 19 December 2007. He claimed he had not seen the order before. In it was disclosed to him, for the first time, the list of the applicant's prior criminal convictions. These were:

Year of Conviction	Offence
1970	Assault
1970	Theft (4 counts)
1972	Stealing
1973	Unseemly words; assault police; not cross lines with safety
1974	Possess Indian hemp
1975	Neg driving; receiving; assault made; GIC
1976	Rape
1978	Assault female
1984	Assume designation police officer; possess Indian hemp
1984	Mid range PCA
1984	Serious alarm and affront; resist arrest (2 counts)
1997	Larceny
2004	Assault police officer in execution of duties

40 As the ADT had ordered that the applicant work, at all times, in the company of another adult, Mr Gray arranged a meeting on 19 March 2008, between himself, the applicant, Mr Mory, Mr Scott Wall, Package Manager and Mr Steve Honeywell, General Manager. Mr Gray advised the applicant, that in view of the ADT decision, he was confined to work in the Division's Doonside site, until further notice. Mr Gray also raised the issue of the complaints from the Long Neck Lagoon Education Centre and told the applicant an independent investigator was to be engaged to investigate the complaints.

41 In his reply statement, the applicant said that in the meeting with Mr Gray on 19 March 2008, he had asked about the complaints from Long Neck Lagoon and was not told the nature of them. He was upset about Mr Gray's refusal to give him the specifics of the allegations. The applicant denied threatening to go out to the Long Neck Lagoon site and sort out the issues with staff. He had said to Mr Gray:

Mr Gray had told him not to go to the site and he had not done so. The applicant said that he had not been informed of the allegations until his interview with Mr Madden.

42 Mr Gray said that he had instructed Mr David Madden of DBM Independent Consultants, to undertake an investigation of the complaints from Long Neck Lagoon. Mr Madden interviewed the applicant, Mr Mory and the female complainants and reported on 18 April 2008, as follows:

§ RV at the Long Neck Lagoon Environment (sic) Centre on 11 March 2008 behaved inappropriately in the presence of female Department of Education and Training staff members and in so doing was in breach of the Code of Conduct.

§ That Brian Mory did not exercise his supervisory responsibility in ensuring that RV behaved professionally at all times.

§ That Brian Mory did falsely complete the site log by recording arrival and departure times which he knew to be false.

43 Mr Gray said that the applicant had been the subject of a number of complaints from other schools. He had been issued with warning letters on 9 May 1997, 3 July 1998, 25 August 1998 and 20 August 2004.

Compliance with the ADT's Orders

44 Mr Gray gave evidence that it would not be possible for the respondent to comply with the orders of the ADT. He said that the Team Leader may be required to leave the school site to collect paperwork or purchase materials. The Team Leader may be in other areas of the school or be absent from the company of the applicant for a variety of reasons. Mr Gray said that it was not possible to guarantee work for the applicant as a carpenter at other sites, other than schools, as there were no available positions. Further, Mr Gray believed it would impose a cost burden on the respondent and reduce its capacity to compete with the private sector. It would also impose an undue burden of supervision on the applicant's Team Leader.

45 The applicant strongly disputed that it would be impractical for him to be reinstated because of the ADT's order. He had worked in schools for approximately 12 months, after the interim order, and there had been no change to his work arrangements, or level of supervision, after the final orders. He believed that they were essentially the same as the first orders. He had continued to work under the direct supervision of Mr Mory, primarily as a two person team.

46 The applicant noted that he had worked the same way before the interim order, and during and after the final order. This involved travelling to sites with the Team Leader and working with the Team Leader on all of the jobs, including going to the office to complete paperwork. The applicant denied that it was very rare for a team leader to leave a site during a job. Purchasing material and completing paperwork was done before, and after attending the site. Generally, materials would be purchased once a month and the applicant would go with Mr Mory to the supplier.

47 The applicant said that from his knowledge all of the carpentry gangs worked in groups of two or three. This was to ensure that no allegations of improper conduct would occur and to ensure compliance with occupational health and safety obligations. The applicant believed that there was other carpentry work in the Department, as well as the stone yard where he had worked in late 2005. The applicant did not believe there would be any additional cost burden on the respondent, or undue burden on the supervisor.

48 In further cross-examination on the practicality of reinstatement, the applicant said that he wasn't aware that the carpentry contract for the Department of Disability and Home Care homes was to end at the end of that month (October 2008). He conceded that he didn't know if there was much carpentry work in the stone yard. He further conceded that his back injury limited the type of work he could do, including possibly some heavier carpentry work.

49 In oral evidence, Mr Gray deposed that the Division sometimes performs work for the Department of Disability and Home Care, but it does not have any long term relationship with that Department.

50 Mr Gray referred again to the terms of the ADT's interim order and confirmed that the Department had needed to clarify the terms of the order. Mr Gray said he did speak to the Tribunal member and was told that it was the applicant's responsibility to ensure that he did not put himself in a position of risk. Mr Gray said that the terms of the interim order did allow some flexibility. As both Mr Mory and the applicant had high recreation leave balances, when Mr Mory took leave or was sick, the applicant also took leave. Mr Gray agreed that the applicant had assisted in this regard. Sometimes, when Mr Mory was sick, the applicant was moved to the office, or found alternative work. Mr Gray agreed that there are currently carpentry teams consisting of two persons, although occasionally an apprentice is rotated through the two person team.

51 Mr Gray said there was no work for a carpenter in the Department's stone masonry factory or the heritage / plumbing business. There is carpentry work in the contract support group which has three teams of carpenters of three and four per team, depending on the work. That work was to finish at the end of October 2008.

52 In cross-examination, Mr Gray was asked about the events around the time he had received the Department of Education's letter advising that the applicant was a prohibited employee. Mr Gray said he possibly had two conversations with the applicant at the time and it was agreed he would go on recreation leave until it was sorted out. Mr Gray denied that he knew of what Tribunal to go to in order to have the matter resolved.

53 Mr Gray said that when he first received the ADT's interim order (around 12 September 2005) he, the General Manager and Project Manager, all believed it could not be complied with. Mr Gray said that they had reviewed the efficiency of using two people being always together, including to pick up materials, etc. Mr Gray said that there were some instances where a person could work alone, and this was why it was necessary to seek a clarification of what was meant by 'work substantially in partnership with another employee'. Mr Gray conceded however, that that arrangement was exactly what the applicant and Mr Mory were doing at the time. The Tribunal had confirmed that that arrangement complied with the order, and had also said that it was the applicant's responsibility to ensure he was not put at risk.

54 Mr Gray agreed that the applicant had returned to his duties, working with Mr Mory, in about October/November 2005 and no further complaints had been received by him about the applicant until the Long Neck Lagoon incident. Mr Gray also confirmed that between October 2005 and March 2008, no issues had been raised with him about compliance with the ADT's order.

55 As to the Long Neck Lagoon incident, Mr Gray conceded that the complaint forwarded by the Department to him indicated that the Principal had simply requested that the contractor be made aware that his attitude / behaviour was not appreciated. Nevertheless, Mr Gray said that the complaint had three elements:

56 Mr Gray said that he spoke to the General Manager, and they had decided that as he (Mr Gray) had been involved in reviewing previous complaints against Mr Mory and the applicant, an independent investigator was warranted.

57 Mr Gray said he was prompted to call the ADT on 18 March 2008, to find out about any final decision. He had not checked first with Human Resources, the Director General or the applicant as to whether a final order had been made. Further, he did not check with the Director General to see if he had received the order as directed by the ADT. Mr Gray said he had read the decision and had not otherwise been aware of the applicant's past criminal record. Mr Gray believed the applicant had a responsibility to disclose his criminal convictions. Mr Gray said that he was surprised by the history and he agreed it could have impacted on his view of the applicant's character. However, the independent investigator had already been engaged and would not have been influenced, at all, by the ADT details becoming known.

58 As to the meeting with the applicant on 19 March 2008, Mr Gray said that he had raised the Long Neck Lagoon complaint and advised him that an investigator had been appointed. He further advised that until the Department had clarification of the ADT order, the applicant was to remain at the Doonside site. Mr Gray conceded that the applicant was not provided with details of the complaint at the time and only told it involved inappropriate behaviour. Mr Gray agreed that the applicant was frustrated and upset and had later phoned him, after the meeting, to seek further information. Mr Gray was anxious in talking him out of going to the site as he believed it would not have helped his case to do so. Mr Gray could not recall if the applicant had offered to apologise at the time.

59 Mr Gray now accepted that it was not until his interview with the investigator, that the applicant was first made aware of the details of the allegations against him i.e. three weeks after the incident. Mr Gray said that from 19 March to 18 April 2008, the applicant had continued to work at the Doonside site. Mr Gray acknowledged that the investigator had concluded that, without any knowledge of the applicant's past history, the matter could be dealt with remedially.

60 Mr Gray said he had then prepared a briefing note in which he recommended the applicant be suspended on full pay, pending a decision on the applicant's future employment. Mr Gray accepted that at this time he had formed the view that the ADT's order could not be complied with, but he had not discussed it with the applicant or Mr Mory. This was based on his view, after checking with other employees in the field, that as current work practices allow an employee to work alone in certain circumstances, the Department could not comply with the ADT's order.

61 Mr Gray agreed that he did not take into account that the applicant's criminal convictions were 11 years and four years prior, but rather, the issue was that they had not been disclosed. He conceded that he had not made any other inquiries with anyone else in the Department as to whether they had been disclosed. Mr Gray added that mere disclosure doesn't necessarily mean a person will be dismissed.

62 Mr Gray was asked about the Department's Code of Conduct. Prior to the 2005 Code, the Code of Conduct had been distributed internally by circular. Since then, there is a requirement for all staff to sign an acknowledgement that they have read and understood the Code of Conduct during a training session. It was agreed the applicant had signed for the training about the 2005 Code on 16 March 2006. Mr Gray agreed that the 1995 Code was primarily related to employment, and not necessarily to whether a conviction affected the inherent requirements of the person's job. Mr Gray agreed that the 2005 Code of Conduct does not have any express provision requiring a disclosure of convictions.

63 Mr Gray agreed that he had prepared a summary of the applicant's history, in which he had said his behaviour at work had been erratic, with repeated incidents of inappropriate behaviour, including anger management issues recorded since 1994. Mr Gray now agreed that some of these incidents were minor.

64 Mr Gray did not accept the applicant's assertion that working with Mr Mory would comply with the ADT's order. The arrangement during the interim order had been a compromise, which ultimately affected the Department's flexibility and cost of supervision. In practical terms, he said that when Mr Mory comes to the office, the applicant would have to come with him. Even moving him to another team would involve extra costs. Mr Gray said that team leaders would need to obtain stock and materials from time to time, forcing them to leave a job. Because only the Team Leader has a Department Mastercard, the applicant could not do the purchasing. Mr Gray conceded that Mr Mory had not raised any concerns about undue supervisory burdens being placed on him. Mr Gray added that if the Department of Education and Training did not renew the contract option in June 2010, it would leave a hole which other work could not fill. Mr Gray said that the current contract carpentry work will expire in late October 2008. While the Department does pick up other work, further work cannot be guaranteed.

65 In questions from the Bench, Mr Gray said that when he received the ADT's interim order in September 2005, he was curious, but he didn't ask the applicant about the details. Mr Gray said that no one had reported to him, and he made no inquiries over the two years of the interim order, as to whether the applicant himself was complying with the order.

66 Ms Penelope Jane Hume has been the Director of People, Performance and Development for the New South Wales Department of Commerce for three years. Ms Hume was the nominated contact officer in respect to RV's suspension. She had explained to him relevant information about the disciplinary process. Specifically, Ms Hume said that she had spoken to the applicant and his wife on 11 July 2008, and explained the process of meeting the Director General. She had told them he was not required to make a written statement, and it would not go against him if he didn't do so. On 23 July 2008, Ms Hume attended the meeting as an observer, with the applicant, his wife and the Director General, at which time the applicant put submissions as to his criminal convictions and the incident at Long Neck Lagoon. In oral evidence, Ms Hume said that the meeting with the applicant lasted 45 minutes to an hour (not 20 minutes). As an observer, she took no notes.

67 In cross-examination, Ms Hume said that she had been provided with the allegations of misconduct by the legal department. She was to act as the contact person only and was not involved in any decisions. Ms Hume agreed that she had signed the brief recommending suspension of the applicant, but said it was rather as a notation of her being aware of the incidents and the proposed actions. She had not formed any view about the allegations themselves. She had not known if the applicant's convictions in 1997 and 2004 were punishable by imprisonment of 12 months or more.

68 Ms Hume agreed that she had spoken to the applicant and had also spoken once to his wife. Ms Hume had told him it was not an absolute necessity to put in a written submission and by not doing so it would not be held against him. Ms Hume recalled that at the meeting, Mr Lee had mentioned that his wife would be frightened (of the applicant) and that he, the applicant, was a 'big bloke'. Ms Hume said that she had no discussion with Mr Lee after the meeting and had simply forwarded correspondence to the applicant.

69 Mr John Gregory Lee was the Director General of the Department of Commerce (he is now the Director General of the Department of Premier and Cabinet). Mr Lee had been provided details of the allegations against the applicant in May 2008 and had approved the applicant's suspension with pay until the disciplinary process had been completed.

70 Mr Lee said that on 10 July 2008, he had formed the opinion that the applicant had engaged in misconduct and issued him a letter providing notice of disciplinary action and inviting the applicant to make submissions and attend a meeting to put his point of view. Mr Lee said that at the meeting, he went through each of the allegations and outlined their seriousness and asked the applicant to provide an account of each matter.

71 When asked as to why he had not reported his criminal convictions, Mr Lee said that the applicant said words to the effect of (that) 'I was worried that I might lose my job if told someone about my criminal history'. Mr Lee said the applicant made the following submissions:

72 In relation to the Long Neck Lagoon incident, Mr Lee had asked the applicant if he had read the report of Mr Madden, and if there was anything he wished to challenge. The applicant had said there were parts of the report he did not like. The applicant had admitted to making comments to the female staff, but did not consider them threatening. Mr Lee deposed to the following conversations between them:

73 The applicant denied Mr Lee's versions of the conversations at the meeting. He claimed to have said:

74 The applicant denied what Mr Lee had said about the police assault. He said his wife had told Mr Lee that the police were 'heavy handed' and, in fact, apprehended, and had convicted, another person in relation to the matter. In respect to the Long Neck Lagoon incident, the applicant claimed he had told Mr Lee that he had only been making small talk with staff and had not intended to be threatening.

75 In further evidence in chief, Mr Lee said that during the meeting he had asked the applicant how he rated his performance. After the meeting, Mr Lee had asked Mr Gray how he rated the applicant's performance. Mr Lee said there was a clear disconnect between the two comments. Mr Lee said he had also reviewed the applicant's personal record.

76 Mr Lee said that at the conclusion of the meeting he had told the applicant he considered this to be a serious matter and that he would consider all of the evidence before making a decision. Mr Lee did not consider the applicant to be credible, particularly as he had not disclosed his criminal history.

77 Mr Lee said that he later formed the view that the seriousness of the allegations warranted dismissal and that he had taken all matters into account. Mr Lee did not consider, given the applicant's criminal history and past conduct, that he was a suitable employee to work with clients of the Department. Employees are expected to maintain appropriate standards of conduct and display honesty and integrity, particularly in the position held by the applicant of working in schools. Mr Lee said he wrote to the applicant on 28 July 2008, advising him to resign or he would be dismissed.

78 In cross-examination, Mr Lee said he was first provided with details of the allegations against the applicant by Ms Hume and he had a discussion with her about them. Mr Lee did not agree that it was necessarily important to include details of these discussions in his affidavit. Mr Lee explained that as Director General, he might have 10 to 15 meetings a day with documents provided and a general discussion with the relevant manager. He said that what was important was that he not be prejudiced against the applicant by what he was told. Mr Lee conceded that he did not make his own independent inquiries, as he relied on advice from Managers and the Legal Division. Mr Lee said that, at the time he issued the suspension letter to the applicant, he had been unaware whether the Regulations were in force, at the relevant time. However, he was aware of the requirements of the Code of Conduct. Mr Lee said he did not undertake any further consideration of the matter between the suspension letter of 21 May 2008, and the notice of dismissal letter of 10 July. He had relied on the advice of Ms Hume and the Madden Report.

79 Mr Lee conceded that he did not know what penalties had been imposed on the applicant in 1997 and 2004; only that there had been two convictions. Mr Lee added that it was not only the failure to disclose the convictions, but the convictions themselves which were of concern to him. Mr Lee agreed that he also relied on Mr Gray's summary of the applicant's incident history. Mr Lee believed the applicant's behaviour at Long Neck Lagoon was menacing and inappropriate. The women themselves said they had felt threatened. Mr Lee preferred CW's version of what had happened to the explanation offered by the applicant. Mr Lee said he had not dissected each piece of information and tested it against the Code of Conduct. Rather, he took a global view of the matter as to whether the applicant was in breach of the Code's objectives.

80 Mr Lee acknowledged that he had formed an opinion prior to meeting with the applicant, but he wanted to give the applicant an opportunity to respond to the allegations and raise any matters he wished to put in mitigation. Mr Lee said no record was made of what was said at the meeting because he believed the applicant was accustomed to such meetings and he simply wanted an open, honest dialogue, without the taking of copious notes. Mr Lee said he was aware that the applicant had some literacy issues and that he hadn't put in a written submission. Mr Lee said there had been very little discussion about the rape conviction; it was more about the 1997 theft conviction and 2004 assault. Mr Lee said he could not recall if the applicant had expressed concern with a matter which occurred so long ago being brought up in terms of his current employment. The applicant had said that the 2004 incident was a case of mistaken identity; yet he had pleaded guilty. Mr Lee agreed that some of the other incidents from 1994 to 2008 were minor. He had also considered the applicant's 23 years service.

81 In re-examination, Mr Lee said he had not formed a final view about the applicant's future as at May 2008, but had made his final decision about 24 hours after his meeting with him. Mr Lee said that the applicant's 23 years service and personal circumstances weighed heavily upon him, but in view of the limitations imposed by the ADT, the Department had little option. Mr Lee had even asked Mr Gray if work in other than in schools was possible, and had been told it was not.

82 Mr C McGee, of Counsel, outlined the approach the Commission is required to adopt in determining this application: Firstly, the Commission must consider whether the misconduct had a basis in fact; secondly, if so, did the conduct represent misconduct; and thirdly, was the conduct sufficiently serious, having regard to various mitigating factors, to warrant dismissal? The onus of proof rests with the employer: See New South Wales Nurses' Association v South Eastern Sydney & Illawarra Area Health Service (2007)164 IR 225.

83 Mr McGee said that the first allegation of failing to disclose two criminal convictions was said to be a failure to comply with cl 100A of the Regulation. Mr McGee submitted that as the first conviction was in 1997 and cl 100A was not inserted into the Regulations until 2002, then that allegation 'must fall away'.

84 Mr McGee acknowledged that there was a similar type of disclosure requirement in the Department's Code of Conduct in 1995, but the applicant's evidence was that he was never given the Code, never signed for it, never told about it and never trained in what was required. Mr Gray could not say if the applicant had been given a copy of the Code. The applicant could not recall if he was given the 2005 Code, but had signed for the training on 16 March 2006. The applicant had said that the first time he was required to disclose anything about prior convictions, was when he signed the child protection disclosure. Mr McGee said that there was no deliberate, or wilful attempt to withhold information. Even so, such a failure to disclose, in circumstances where the applicant believed it related to convictions for which a 12 month gaol sentence or more was served, would not amount to misconduct. The applicant had received relatively small fines for both offences and Mr McGee questioned whether any employee would know what the Regulation meant.

85 Mr McGee said the respondent also relied on the convictions themselves as amounting to misconduct: See s 48 of the Public Sector Employment and Management Act. He submitted that these convictions had nothing to do with the performance of the applicant's duties and there was nothing to suggest that he would conduct himself in a similar manner whilst at work. Mr McGee added that there was no objective evidence that the failure to report his convictions, or the convictions themselves, undermined the integrity or reputation of the Public Service or that the public interest was adversely affected. The applicant had not sought to downplay the seriousness of the convictions and he had pleaded guilty. The fines imposed reflected what the Magistrates regarded as at the lower end of seriousness.

86 As to the Long Neck Lagoon incident, Mr McGee noted that the respondent had called no evidence from the teachers who had made the allegations and in the absence of that evidence, the Commission would not be satisfied that the respondent's onus of proof had been discharged. Moreover, Mr McGee submitted that the independent investigator had not found the allegations proven to the requisite level.

87 Mr McGee said that Mr Lee's conclusion that the applicant's behaviour was 'menacing' was not supported by the independent investigator. The applicant had said he never intended to be menacing, intimidating or offensive and had been more than willing to apologise if offence had been taken.

88 Mr McGee said that when one looks at all of the allegations objectively, none of them, either individually or collectively, amounted to serious and wilful misconduct. Mr McGee noted that Mr Lee queried the applicant's work performance, yet the applicant was never told that his performance was an issue. Mr McGee submitted that even the independent investigator's findings that the incident at Long Neck Lagoon could be addressed remedially, demonstrated it was not conduct of a serious or wilful nature and did not strike at the heart of the ongoing relationship between the employer and employee: See Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Elvin Brian Brown) and Department of Juvenile Justice [2008] NSWIRComm 154.

89 Mr McGee referred to Mr Gray's summary of the applicant's history and said that the summary, when compared to the correspondence it was meant to summarise, was a clear divergence of the seriousness of the conduct. In the five incidents between 1994 and 1998, all were fairly minor and from then until 2008 (apart from the 2004 occupational health and safety incident) there is no incident of any issues at work. Mr McGee put that Mr Lee had prematurely arrived at the conclusion of misconduct and had then asked the applicant to respond. This, of itself, was unfair. The decision maker had not conducted any real investigation of the facts, but had relied on a prejudicial history summary and discussions with other Managers. The consequence of dismissal for an employee of 23 years service, with the same employer, far outweighed the seriousness of the allegations. The dismissal would be found to be 'harsh'.

90 Mr McGee said that the applicant seeks reinstatement as the primary remedy: See Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288. Mr McGee submitted that the ADT orders have, and could be complied with, by the arrangements Mr Mory and the applicant had, and which had been agreed to by Mr Gray. They could work as a team and there was no real objective basis why the orders couldn't be complied with. In any event, the onus was on the applicant to do so. Mr McGee said that even in the rare event of the Team Leader not supervising the applicant, there were no real difficulties for the respondent to accommodate it, either as to cost or inconvenience. Mr McGee said that the evidence was that other alternative work is potentially available. The Department is constantly seeking to renew or obtain contracts. As to the applicant's work injury, Mr McGee said that it would not cause difficulties in circumstances where the employees work as a team.

91 Ms E Brus, of Counsel, dealt firstly with the statutory matters. She said that, notwithstanding that cl 100A was not inserted in the Regulation until 2002, the 1998 Act had a not dissimilar provision. She said it is the Regulation which requires an officer to report any conviction. It should be no surprise, or anything new that the Public Sector treats such matters with seriousness. Ms Brus said that Crown Employees are paid by taxpayers and as such they are required to conduct themselves appropriately. Ms Brus noted that a mere declaration of conviction, doesn't necessarily mean the employee will lose their job.

92 Ms Brus said that, at no time, did the applicant disclose his very extensive criminal record. She said he cannot say on the one hand he didn't know he had to, and then say he was reluctant to do so because he thought he would lose his job.

93 Ms Brus submitted that it would be open for the Commission to conclude that the applicant knew full well that he was required to disclose his convictions; if not before 2005, then most certainly when he was required to complete a child employment declaration and when he knew a criminal check would be carried out, which would disclose he had spent time in gaol. It was not until the trigger of the ADT decision and orders that the Department became aware of this history.

94 Ms Brus said it was open to conclude that this was a deliberate act in breach of the Regulation amounting to misconduct. It was an act of dishonesty by omission. This is a person who is dishonest and violent. Employees in physical isolation with one other employee were placed at a high level of trust.

95 Ms Brus said that Mr Lee had considered all these matters in globo including the most recent incident of inappropriate behaviour and concluded that the applicant did not meet the standards of trust and behaviour expected of him.

96 Ms Brus agreed that this was an unusual case; there was no single act of misconduct; the facts were generally not disputed and the applicant's behaviour was considered in globo. The result was a fundamental breakdown in the trust and confidence in the employment relationship.

97 As to procedural issues, Ms Brus noted that the Long Neck Lagoon allegation, was fully known to the applicant at his interview; there was an independent investigation; he had every opportunity to provide information and defend himself against the allegation; and had a meeting with the Director General.

98 Ms Brus said that there was nothing for Mr Lee to investigate in circumstances where the facts were accepted and an independent investigator had reported. Mr Lee had given due consideration to the applicant's long service and personal circumstances.

99 Ms Brus said that, given the ADT orders, the issue of reinstatement had been a real live issue from the outset. The earlier arrangement with Mr Mory was of short duration and there could be no guarantee that it could continue. There would be occasions in which a team leader might not be able to be always supervising the applicant and it would fall on the employer if the ADT orders were breached. Ms Brus conceded that it was a most unsatisfactory situation, but one the employer was stuck with. The evidence was that there was simply no alternative employment in the foreseeable future into which the applicant could be put. Moreover, it was unclear how the applicant's injury restrictions would impact on any alternative duties.

100 Ms Brus said that the applicant could not be considered more broadly for redeployment in the Public Sector because he was a Ministerial employee, and not a Crown employee. Ms Brus said that there was a range of 'ifs' and 'maybes' which would discourage the Commission from going down the path of reinstatement.

101 Mr McGee rejected the submission that the 2005 child protection declaration would have alerted him to disclose his conviction. The form only identified certain offences which the applicant genuinely believed did not apply to him.

102 Mr McGee submitted that the ADT order should be read practically and sensibly - working in the company of an adult does not mean what the respondent asserts. Mr McGee put that the Commission could order re-employment as a carpenter to another Department or to work he could undertake which might not involve carpentry or working in schools.

103 It might be said that this case is not actually one of serious misconduct. The final decision maker, Mr Lee, gave evidence that the applicant's history, the accumulation of various incidents of inappropriate conduct, together with the more serious breaches of the Regulation and Code of Conduct when viewed, in globo, justified his decision to dismiss the applicant. A significant part of Mr Lee's evidence indicates that seemingly before making his decision, Mr Lee actually asked Mr Gray whether the applicant could work elsewhere in the Department, presumably having regard for the ADT's order. He said:

"I phoned Mr Gray and I indicated to Mr Gray was it possible rather than doing work in those schools there could be some other work available in another part of Public Works and he advised me that would not be possible."

104 In other words, it would appear from this evidence, that Mr Lee himself was not convinced that summary dismissal was the logical outcome, but rather, that the ADT order made it inevitable. Put another way, in the form of a question, why would Mr Lee feel inclined to explore options for alternative work for the applicant, if summary dismissal was justified, simpliciter? When seen in this way, the only logical conclusion one can come to is that, absent the ADT order, the applicant's misconduct was in reality a series of incidents which, when each of them is viewed at in isolation, may not justify dismissal, but taken globally, may warrant a poor performance based dismissal.

105 Another small, yet pointed piece of Mr Lee's evidence was that he had asked both the applicant and his supervisor how they rated his performance. Leaving aside the fact that the applicant was never faced with questions as to his performance, Mr Lee's inquiry in this regard would seem to suggest that the reasons for dismissal were taken out of the realms of pure misconduct.

106 I am fortified in these observations by the conclusions and findings of the independent investigator, Mr Madden, when he said that without knowing the history of the applicant, the incident at Long Neck Lagoon could well have been handled remedially. Ms Brus, correctly, I think, acknowledged that, viewed in isolation, the Long Neck Lagoon incident would not have justified the applicant's summary dismissal (Tp 3 - 21 August 2008). I shall return to each of the allegations shortly. In any event, the case was nevertheless presented and argued as being one of summary dismissal for misconduct. That being so, the onus shifts from the applicant to the employer to prove the allegations against the applicant. Before coming to the specifics, it is as well that I outline the principles to be taken into account by the Commission in cases such as this.

107 I have just mentioned the shift in the evidentiary onus from the applicant to the employer. This principle, as Mr McGee referred to, was conveniently summarised recently in New South Wales Nurses' Association (on behalf of Colin Prior) v South Eastern Sydney and Illawarra Area Health Service, and which included reference to the employers onus of proof being on the civil standard; i.e. the balance of probabilities. The Full Bench at paras [11] to [14] said:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues ... But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. (emphasis added).

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (emphasis added).

108 There is no dispute that the applicant did not report to the Department Head his convictions for larceny in 1997 and assault in 2004, as required by cl 100A of the Regulation. However, that cannot be the end of the matter. In my view, the real issue here is whether the applicant was aware of his obligation to report his convictions and, if he did, was it deliberate and wilful failure sufficient to ground a charge of misconduct?

109 It might firstly be observed that the allegation is crafted as to be a reference to a breach of the Regulation, rather than the Department's Code of Conduct. However, the emphasis in this case was on whether the applicant had breached the Code of Conduct. To the extent that they relate to essentially the same subject matter, I shall take it, the allegation really was that the applicant had breached the Code of Conduct. I have little doubt that the applicant would not have been aware of Public Sector Regulations; let alone the specific terms of cl 100A.

110 The evidence of the applicant was that he had never seen or received the 1995 Code of Conduct, nor had been told about it, or trained as to its requirements. The evidence of the Department is that the 1995 Code was distributed by circular and employees were not required (as they now are) to acknowledge by their signature that they had read and understood its contents in a training session.

111 Having regard for the state of the evidence on this issue, I am comfortably satisfied that steps were not taken by the respondent to ensure the applicant was sufficiently appraised, if at all, of the requirement to declare his convictions in 1997 and 2004. By 2005, however, a redrafted Code of Conduct now required employees to sign an acknowledgement that they had attended training about the Code and had read and understood the terms and conditions of it. The evidence was that the applicant attended such a training session on 16 March 2006. There was no evidence of what was discussed at this training session. Interestingly, the 2005 Code of Conduct makes no reference to any requirement on an employee to declare any criminal convictions, but rather speaks more generally about the maintenance of appropriate standards of conduct and behaviour (see par 5). Presumably, the Code is to be read in conjunction with the more prescriptive requirements of the Regulation inserted in 2002. All of this, in my opinion, leads to some confusion. It follows that I can find no strict requirement for the applicant to have disclosed his criminal convictions by reference to the Code of Conduct. Without evidence as to the applicant being made aware of the requirements of the Regulation, I cannot conclude that he was in deliberate breach of either the Code of Conduct or the Regulations. On its face, that conclusion might be seen to be playing with semantics. One might argue that the rationale of ensuring an employee's honesty and fidelity in the employment relationship, particularly in the public sector, required the applicant to be completely open and honest with his employer. Obviously, I do not argue with such a proposition.

112 Ms Brus opined that the applicant deliberately and wilfully sought to avoid his obligation to be honest with his employer. She queried whether the real reason the applicant didn't disclose his convictions until he was caught out in 2007, was because he knew his job would be in jeopardy if he did. Well, there may be a ring of truth about this last observation, but I am not so sure that when all of the circumstances are considered, the applicant was guilty of the charge of misconduct for failing to declare his convictions.

113 It was not in dispute that the applicant is now completely rehabilitated from his earlier life of crime. I was particularly moved by his statement that I record at par 21 of this decision. His regret and remorse in the witness box in which he described his early life as being in the gutter and that he was deserving of punishment, was a palpable and poignant reminder that previously bad people can completely change for the better. He has raised four sons, has a strongly supportive wife and he is an active member of the community. I accept unreservedly that he is a completely changed man. It is little wonder that he might have been fearful of voluntarily releasing details of his unsavoury past, if he believed there was no legal reason for him to do so and where he believed his crimes did not materially affect his employment. I shall return to this latter point later. It was a reasonable conclusion for him to draw that if he was dismissed for his past, he would be punished again after all those years had passed since his most serious of offences over 30 years ago.

114 That brings me of course to the alleged compounding of his failure to disclose his convictions in 2005, at the time he was required to sign child protection declarations and an employment screening consent form acknowledging a criminal check would be made on him. Ms Brus submitted that the applicant had an opportunity - indeed an obligation - to now declare his convictions when he knew a criminal check would be undertaken. She said he failed to do so in order to deliberately take a chance on what might be discovered. I would not attach the same devious motivation of the applicant's failure to declare his convictions at this time as Ms Brus did. I say this for the following reasons:

115 Firstly, what possible gain was there for the applicant to acknowledge there would be a criminal check of his past which would reveal his various convictions. I accept that the applicant genuinely believed that his convictions were not involving children and his further belief that they would not, therefore, be a relevant factor to his continuing employment in schools.

116 Secondly, the applicant was required to disclose any criminal conviction for a serious offence or registrable offence. Serious offence under s 48 of the Public Sector Employment and Management Act and registrable offence, as described in the screening consent form, is defined as an offence which carries a possible penalty of 12 months imprisonment or more. I again accept that, even if the applicant knew that his offences were serious, he genuinely believed that this meant an offence for which he had been imprisoned for 12 months or more. As both the 1997 and 2004 convictions involved the imposition of relatively small fines, I consider the applicant's understanding of what he was required to declare was a mistaken, but perfectly understandable one. I venture to say that most people in the community would be confused by the difference between a maximum penalty for an offence and an actual penalty, and even fewer would know what the maximum penalties are for particular crimes.

117 One further point is relevant to make at this juncture. It was uncontested that the applicant has limited literacy skills and relies on his wife to read and complete documents for him. Given these limitations, it seems to me to be perfectly reasonable, that where the applicant said he neither read, nor properly understood relevant documents about the Code of Conduct, the Regulations and the child protection documents, that he must be given the benefit of the doubt.

118 For these reasons, I am unable to conclude that the respondent has discharged the onus it bears on establishing the applicant's misconduct as to the first allegation.

119 Before leaving this matter, I would with to make some pertinent observations about the respondent's claims of not being aware of the applicant's criminal convictions until the ADT's final decision when Mr Gray incidentally found out in March 2008. In my opinion, it simply beggars belief that the respondent made no inquiry, or was otherwise not made aware, that the applicant may have had a criminal conviction when he was first before the ADT in 2005. After all, this was the raison d'etre of the applicant seeking to have his prohibited status removed. Mr Gray said that he was curious, but did not make any inquiries; yet Mr Gray actually participated in the ADT proceedings and made inquiries of the Tribunal member about the restrictions in the order not once, but twice. To suggest he or somebody else in the Department didn't know or make inquiries about the basis of the ADT's interim order is, to me, unimaginable and unbelievable.

120 Moreover, the Senior Risk Assessor in the Department of Education and Training reported to the respondent on 21 July 2005, that the applicant was ineligible for child related employment. How could that assessment possibly have been made without someone in that Department being told that the applicant had a criminal record. Yet, not one of the applicant's Managers in the Department of Commerce sought, or inquired as to any details of the convictions for over two years - utterly astonishing!

121 Putting aside the obligation on the applicant to disclose his convictions, why didn't someone just ask? In addition, mere suspicion by a Senior Officer is actually envisaged by cl 100A(2) of the Regulation. In my view, having regard for what was known to have happened, someone in Management must have had 'a reason to believe that a member of staff had been charged with having committed or had been convicted of a serious offence'; yet no one informed the Departmental Head as is required by the very Regulation the applicant is accused of breaching.

122 Ms Brus strenuously asserted that the Department was unaware of the ADT's final proceedings until the decision was provided on 18 March 2008, following Mr Gray's inquiry. With respect, this was an extraordinary claim and one that cannot be sustained by the evidence. On a close examination of the decision of Britton DP, it would seem that firstly, the Department had been served with notices to produce in the matter, sometime in 2007. Britton DP said at par 39 of her decision:

Presumably someone who was, or who purported to be, RV's manager, had provided evidence and/or material from which Britton DP was able to quote 'RV has not been involved in any incident of note'.

124 Thirdly, other material had apparently been provided by RV's employer which had demonstrated that there was nothing adverse about him. Britton DP said at par 88:

125 In light of these startling references and, if Ms Brus's instructions are right, then I shudder to think what on earth was going on in the Department. Who from the respondent, was providing material to the ADT, and how was it that no one in relevant authority knew about it? How was it possible that Mr Gray knew nothing about the ADT proceedings with this amount of information recorded as being provided to the ADT by someone for, or on behalf of the Department. Either there was a complete communication breakdown in the Department of Commerce or someone has given false instructions to Ms Brus. On the state of the evidence, I cannot be certain as to what really happened.

126 Finally, before leaving the ADT's final decision, it must also be said that the applicant complied with the order in that he provided a copy of the orders to his immediate supervisor, Mr Mory. I accept his evidence in this regard. There was no requirement for him to provide the reasons for decision and he did not do so.

127 The orders also requested the Registrar of the ADT to serve the orders on the Director General of the Department of Commerce. Mr Gray said it was not until his incidental inquiry in March 2008 that he became aware of the final orders. It was said that there was no record of the receipt of any such orders from the ADT. I cannot make any observations on the reasons why the Director General did not receive the orders. It is sufficient to say that there appears to have been a breakdown in communications within the ADT or between the ADT and the Department of Commerce.

128 Ms Brus contended that the applicant's convictions in 1997 and 2004 were, of themselves, of such seriousness as to demonstrate the failure of the applicant to meet the standards of trust and behaviour expected of him. For his part, the applicant did not resile from the seriousness of the convictions against him, but did give explanations for his behaviour. As to the larceny charge, he claimed he was drunk at the time. As to the assault of a police officer, he claimed he had been provoked after being embarrassed and humiliated when a number of police entered his house in front of his family. In both cases, he accepted he had done wrong and had pleaded guilty. Mr McGee submitted that the relatively small fines imposed on the applicant reflected the Magistrates' views that both were at the lower range of seriousness. I would agree.

129 I find myself in further agreement with Mr McGee and would conclude that its a fairly long bow to draw to suggest that these convictions undermined the integrity or reputation of the Department or the Public Service, or that the public interest was compromised. In my opinion, the convictions of themselves would not attract the sort of opprobrium from the general public such as to justify the applicant's dismissal.

130 Moreover, the convictions of larceny and assault could only ever be viewed as tangentially relevant to the applicant's performance of his duties. There was no evidence that the applicant ever conducted himself dishonestly or violently at the workplace. Nor could it be said that his convictions represented a pattern of consistent behaviour both outside and at work.

131 It should also be noted that Mr Gray conceded that the complaint he received from the Department of Education only said that the Principal wished that the contractor be made aware that his behaviour was not appreciated. If this is to be seen as an expression of the views of the teachers concerned, it must be said that they themselves had not wanted him disciplined for his behaviour, let alone dismissed.

132 Seen in isolation, I do not accept that a Department Head would consider it necessary to take any disciplinary action against the applicant as contemplated by s 48(1)(a) of the Public Sector Employment and Management Act as a result of these two convictions. I conclude that the applicant's convictions in 1997 and 2004 do not amount to misconduct such as to constitute a reasonable basis for dismissing the applicant.

133 Ms Brus properly conceded that the applicant's conduct in the Long Neck Lagoon incident would not, of itself, constitute a sound basis for his dismissal. This would seem to accord with Mr Madden's view that, without knowledge of the applicant's history, he considered the matter could be dealt with remedially.

134 Mr McGee submitted that because the respondent did not call the staff complainants from Long Neck Lagoon, then the respondent in these proceedings did not discharge the onus it bears in proving the allegations against the applicant. With respect, such a submission ignores completely what I consider to be the very rigorous and thorough investigation by Mr Madden who concluded, on the balance of probabilities, and after interviewing all persons concerned, that the applicant had 'behaved inappropriately in the presence of female staff members and in so doing was in breach of the Code of Conduct'. Importantly however, in reaching this conclusion, Mr Madden said at page 38 of his report:

135 The other related allegations being that the applicant sat in a staff member's chair and used the field radio and generally behaved in a 'smart alec' fashion, were found by Mr Madden to be behaviour which was overly familiar, he had interfered in the staff member's personal space and property and had not acted professionally. The applicant claimed he had just been 'mucking around' and had never intended to offend or threaten anyone.

136 At the meeting the applicant had with Mr Gray on 19 March 2008, the applicant was upset that he did not know the nature, or specifics of the allegations against him, particularly as he had been at the site on previous occasions. I think it was wrong that he was not made aware, at least in broad terms, of the nature of the allegations against him at this time. In my view, his upset and agitation was understandable in the circumstances, and demonstrates to me that he did not intend to threaten or offend the teachers.

137 In addition, I have had particular regard for the fact that immediately after he knew the nature of the allegations, he unreservedly apologised if he had caused any hurt or offence to the female teachers. I accept that his attempts to apologise were genuine and his contrition was well motivated and immediate. I do not draw any unfavourable inferences from his desire to go immediately out to the site and 'sort it out'. At that point, he did not know the specifics of the allegations, Management would not tell him and he felt his only avenue to sort it out was to do so personally. This was a reasonable response in the circumstances, and I do not accept he intended creating any further harm by doing so.

138 There is one particular aspect of the disciplinary procedure which I consider was entirely unreasonable and gives rise to a conclusion that the applicant's dismissal was procedurally unfair: See Humphries v Cootamundra Ex-Services and Citizens' Memorial Club Ltd [2003] NSWIRComm 211; (2003) 128 IR 37 and Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385. That was the fact, acknowledged by Mr Gray, that the applicant had not been given details of the allegations against him until he attended the interview with Mr Madden. Given that the applicant had limited literacy skills, this failure exacerbated what was a serious defect in a process of ensuring an employee is given a proper opportunity to respond to allegations about which he/she has had some reasonable notice.

139 With that said, I consider that the subsequent process involving the Director General and the applicant being able to personally defend himself against the allegations, was conducted fairly and appropriately. I do not see any particular criticism is available of Mr Lee in prematurely finding the misconduct had occurred and then asking the applicant to respond. Mr Lee was acting on the investigator's report, the applicant's history and his view of the seriousness of the allegations, which had not been factually disputed. I accept that Mr Lee was open to convincing that the applicant should not be dismissed and that he took account of all mitigating circumstances. That is not to say that I necessarily agree with his conclusion, which will, if not already, have become self evident.

140 In my opinion, a relevant factor in any dismissal of an employee for misconduct must be a finding that the employee's conduct was such as to strike at the heart of the relationship between employee and employer. Hungerford J in Day v Lumley Life Limited (1999) 90 IR 70, described this notion in the following way:

141 In Concut Pty Ltd v Worrell (2000) 103 IR 160, his Honour, McHugh J, considered more broadly the ordinary relationship of the employer and employee at common law:

142 For the reasons I have earlier outlined, I do not consider that the applicant's conduct, as to any of the allegations, was such as to strike at the heart of relationship between the employer and employee.

'Harshness' of dismissal

143 The applicant's case has focussed, in my opinion, correctly, on the harshness of the applicant's dismissal having regard to his long period of service and his personal and economic circumstances. Recently Boland J, President, referred to these considerations in Alexander v Commissioner of Police [2009] NSWIRComm 3. At par [39] his Honour said:

I fail to see why in applying this test ["was the termination ... so unfair as to warrant interference by the Commission?"] to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J., in Loty’s Case ([1971] AR 95 at p 99), the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances – even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer’s representative was faced with a situation which had developed to a stage where he had no other alternative.

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.

145 In my view, there are a number of relevant mitigating factors in this case, which compel me to a conclusion that the applicant's dismissal was too 'harsh'. These include:

· his limited literacy skills, which would make it difficult for him to find alternative employment;

· his genuine desire to continue working to support his family and to be seen as a valued member of the community;

· the fact that his dismissal might be seen by some as him being punished twice for his earlier convictions;

· his immediate attempt to apologise for his conduct at Long Neck Lagoon and his genuine sense of contrition; and

146 There was an attempt by Mr Gray to portray the applicant's history of alleged misconduct as being one of the foundations for his dismissal. That an employer may rely on an employee's past conduct when considering a decision to dismiss the employee, is a sound and practical proposition accepted by a long line of authority in this Commission: In National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441, at paras [46] and [47] the Full Bench said:

147 I have carefully reviewed the summary of the applicant's conduct issues against the actual letters sent to him at the time and would agree with Mr McGee that the summary tends to portray the applicant in a poorer light than the letters he received would suggest. For example, the letter to the applicant over the incident of 9 May 1997, at Matthew Pearce Public School, although said to be a formal warning, merely reinforced advice to him that he should distance himself from students and report any problems to the school authorities immediately. Secondly, the incident in August 2004 related to a health and safety issue, not his behaviour or conduct.

148 Moreover, from 1998 until the Long Neck Lagoon incident in March 2008, a period of almost 10 years, there are no recorded incidents of the applicant's inappropriate behaviour or misconduct at the workplace (save for the occupational health and safety issue in 2004). In my opinion, there was no evidence of a demonstrated pattern of misbehaviour or misconduct by the applicant and it was therefore, not open for the respondent to rely on the applicant's history to justify its decision to dismiss him.

149 As Ms Brus put no submissions on the more recent allegations of misconduct against the applicant (see par 32), I do not consider that there was any intention to rely on them in this case. That being so, I have not taken such matters into account, and say no more about them.

150 For the reasons I have outlined, I find that none of the three allegations against RV were of sufficient seriousness as to justify his dismissal for misconduct. I do not accept when taken globally and having regard for the applicant's history, that the allegations were of such seriousness as to strike at the heart of the employment relationship between the applicant and the Department.

151 The Commission finds that RV's dismissal was 'harsh' and 'unreasonable', both substantively and procedurally, within the meaning of Pt 6 Ch 2 of the Act.

152 The Commission is acutely conscious of the amount of evidence and detailed submissions put by the parties as to the practicality of reinstatement or re-employment. I have given earnest consideration as to what relief is appropriate in the circumstances, but feel I must exercise a degree of caution in respect to the very unique and unusual characteristics of this case. The respondent has raised real practical difficulties, as far as it sees it, in so far as the practicality of reinstatement or re-employment, given the relatively strict conditions imposed by the orders of the ADT. I do not cavil with the conviction of the respondent's position, although I must say I am not entirely convinced it is accurate.

153 That said, I consider that it would be appropriate if the collective wisdom of the parties and their representatives is put to good use in attempting to see if agreement might be reached as to what relief is appropriate to be ordered in this case. I make such directions for the parties to confer. This does not mean that I have abdicated my responsibility in this regard, just that I think that the parties themselves, given the special circumstances, are best placed to creatively consider what options might be available.

154 I shall list the matter on Friday, 20 March 2009, at 10:00am for the making of final orders and/or the making of such other directions as is necessary to bring this matter to a final conclusion. This may include directions as to any further evidence or submissions the parties may wish to put as to the relief to be ordered, in the event that agreement cannot be reached.