Industrial Relations Commission New South Wales

• Medium Neutral Citation: Silling v Corrective Services NSW [2011] NSWIRComm 1056
• Hearing dates: 10 October 2011
• Decision date: 16 December 2011
• Before: Bishop C

Decision

Applicant reinstated as from date of dismissal with continuity of service.

• Catchwords: UNFAIR DISMISSAL: Senior Correctional Officer - unblemished 15 year employment history - three criminal convictions for domestic violence over 13 year period - Bonds imposed - letters of support from superior officers - incidents self reported to police and managers - written warning after first incident - counselling and medical assistance now acknowledged as necessary and being undertaken - dismissed per s.48 of PSEM Act following third offence - reinstatement sought. HELD - unblemished work history significant - no evidence unable to carry out duties - no evidence advanced to support reasons for dismissal - no evidence as to impracticability of reinstatement - decision to dismiss harsh in particular circumstances of case -reinstatement not impracticable - reinstatement ordered.
• Legislation Cited: Crimes Act 1900; Industrial Relations Act 1996; Public Sector Employment and Management Act 2002
• Cases Cited: Anthony Farquharson v Qantas Airways, U2005/1006, 10 August 2006; Bankstown City Council v Paris (1999) 93 IR 209; Byrne & Frew v Australian Airlines (1995) 61 IR 32; Cavanagh v NSW Police [2003] NSWIRComm 474; Department of Health v Perihan Kaplan [2010] NSWIRComm 65; Director of Public Employment by his Agent The Director-General of The Department of Juvenile Justice v Public Service Association and Professional Officers' Association Amalgamated Union of NSW (On Behalf of Elvin Brown) [2008] NSWIRComm 221; Jones v. Dunkel (1959) 101 CLR 298; Martin Evans v NSW Police [2005] NSWIRComm 404; McManus v Scott-Charlton (1996) 70 FCR 16; National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441; New South Wales Attorney-Generals Department v Miller [2007] NSWIRComm 33; Outboard World v Muir (1993) 51 IR 167; Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186.; Rose v Telstra Corporation AIRC, 4 December 1998 [Print Q9292]; Samms v Contact Point International [2001] NSWIRComm 18; Webb v Goulburn Masonic Village (2004) 136 IR 309
• Category: Principal judgment
• Parties: Michael Silling (Applicant); Corrective Services NSW (Respondent)
• Representation: Mr M Jaloussis (Applicant); W G Jones McNally Staff Lawyers
• File Number(s): IRC 1199 of 2011

DECISION

1 This is an application by Michael Silling against Corrective Services NSW (CSNSW) for a remedy pursuant to S.84 of the Industrial Relations Act , 1996. Mr Silling was dismissed from his position of Senior Correctional Officer at the Goulburn Correctional Centre by CSNSW on the 17 June 2011. He sought reinstatement to his former position.

2 The matter was listed for conciliation and directions before me on the 22 July 2011 at which time conciliation took place. The parties were directed to confer with a report set down for the 16 August 2011. As the parties advised that no settlement could be reached, directions as to the filing and exchange of witness statements were issued in accordance with Practice Direction 17 and the matter set down for hearing on the 10 and 11 October 2011.

3 At the hearing Mr Hatcher , of Counsel, with Mr Jaloussis , Solicitor, appeared on behalf of Mr Silling. Witness statements were filed on behalf of the following:

Michael Silling.......applicant (Exhibit 1)

Marie Silling..........wife of the applicant (Exhibit 5).

4 Mrs Silling was not required for cross examination.

5 Mr Prince, of Counsel, appeared on behalf of CSNSW with Mr Cosgrove a Solicitor with CSNSW. A witness statement was filed on behalf of Mr Cosgrove (Exhibit 6), who also gave oral evidence.

Background and Chronology

6 Mr Silling is aged 49 and has been married to Mrs Silling for some 27 years (with their relationship having commenced some 6 years earlier). They have 2 adult children.

7 Mr Silling commenced employment as a Correctional Officer with the Department of Corrective Services (as it then was) in June 1996 and was promoted to the position of Senior Correctional Officer in mid 2001. Mr Silling worked at the Goulburn Correctional Centre during the entire period of his service with CSNSW.

8 Mrs Silling also commenced employment as a Correctional Officer with the Department in January 1997 and was promoted to the rank of Senior Correctional Officer in 2001. She also worked at the Goulburn Correctional Centre. Mrs Silling has now taken voluntary redundancy from CNSW with a cessation of employment date of the 18 October 2011.

9 On 8 July 1998, Mr Silling was convicted in Goulburn Local Court for Common Assault (Domestic Violence) against Mrs Silling and received a Section 556A Recognizance Order for 18 months with the supervision of the NSW Probation and Parole Service (Exhibit 6-A, B & C).

10 On 2 November 1998, Mr Silling was issued with a Letter of Warning from the then Senior Assistant Commissioner, Mr Ron Woodham, in relation to the court conviction (Exhibit 6-D).

11 23 October 2002, a letter was issued by the Professional Conduct Management Committee (PCMC) concerning the briefing of staff following an incident reported by Mr Silling involving the use of force on an inmate in which he failed to make use of a video camera (Exhibit 6-E). CSNSW maintained that this letter represented ''counselling" of Mr Silling.

12 On the 22 October 2008, Mr Silling was convicted in Goulburn Local Court for Common Assault (Domestic Violence) against his daughter and received a Section 10 Good behaviour Bond for 12 months (Exhibit 6 - F & G). Mr Silling provided to the Local Court letters of support from Senior Assistant Superintendent Peter Tansey, Acting Deputy Enid Durling, Correctional Officer Gavin Denney, Assistant Superintendent Karl Coleman, Assistant Superintendent Jan Rudd and Correctional Officer Alan Dempsey (Exhibit 1-O to T).

13 Deputy Commissioner Ian McLean advised Mr Silling by letter of 20 November 2008, that disciplinary action was being considered against him and he was invited to make a submission before any final decision was made (Exhibit 1-V). The matter did not proceed to any internal disciplinary action against Mr Silling by CSNSW due to an "administrative oversight".

14 On 23 February 2011, Mr Silling was convicted in Goulburn Local Court for Common Assault (Domestic Violence) against his wife and received a Section 9 Good Behaviour Bond for 9 months with the supervision of the NSW Probation and Parole Service (Exhibit 6-H, I & J). Mr Silling provided to the Local Court letters of support from Assistant Superintendent Karl Coleman, Assistant Superintendent John McInnes and Senior Assistant Superintendent Wayne Belgrove (Exhibit 1-L1 to L3).

15 The s.9 Bond imposed by the Local Court on Mr Silling was due to expire on the 23 November 2011.

16 By correspondence of 9 March 2011, Deputy Commissioner McLean advised Mr Silling that disciplinary action was being considered in relation to the three court convictions and an "internal disciplinary matter" (the 23 October 2003 PCMC letter) in accordance with s.48 of the Public Sector Employment and Management Act 2002. He advised the range of disciplinary actions possible and invited Mr Silling to make a submission within 14 days and provide any additional material considered relevant before a decision was made. Mr Silling was also given the opportunity of having an interview with the Deputy Commissioner (Exhibit 6-K).

17 On 7 April 2011, Mr Silling provided written submissions in response to Deputy Commissioner McLean's letter (Exhibit 6-L).

18 On 12 April 2011, Mr Silling also made oral representations to Deputy Commissioner McLean in response to the 9 March letter. A transcript of the interview was made and provided to Mr Silling (Exhibit 6-M).

19 By correspondence of 10 June 2011, Deputy Commissioner McLean notified Mr Silling that in consideration of the penalty for the court convictions and the "internal disciplinary matter" he was to be dismissed from the Public Service (Exhibit 6-N).

20 As well as Mr Silling's letter of response, Deputy Commissioner McLean also had available to him, and took into consideration, the following documentation (Exhibit 6-O):

Professional Standards Branch Employee Profile Form - Michael Silling;

NSW JusticeLink Court Extracts for each of the three convictions;

NSW Police Facts Sheets for each of the three charges.

The Evidence

21 Mr Silling deposed that during his almost fifteen years service with CSNSW he had been faced with many situations where inmates had either tried to either provoke him or had assaulted him in the course of carrying out his duties. Despite those incidents he had never been provoked to react and he had never been charged with excessive use of force when restraining an inmate.

22 He also deposed that as Mrs Silling was also employed as a Correctional Officer at Goulburn, this brought about some stress into their marriage because of matters that happened at work to each of them.

23 With the exception of the incident referred to by CSNSW (the 2002 matter), at no time during his employment had he ever been counselled, warned, reprimanded or fined.

24 He acknowledged in cross examination that after the first conviction for assault (the 1998 incident) he received a warning letter from Mr Woodham but re-affirmed that he had never been counselled or warned etc., in relation to any issue to do with the carrying out of his employment duties.

25 When challenged about having written in his s.84 Application that he had not been warned etc., even though he had in fact received the warning letter from Mr Woodham about the 1998 assault conviction, he acknowledged that the Code of Conduct and Ethics stated:

"Any private activity which may adversely affect your job performance will be regarded as a work related issue and such activity could include alcohol abuse, drug use, or violent behaviour."

26 He went on to accept that in 1998 the nature of his offence was "violent behaviour". However when he completed his s.84 application indicating that he had never been warned, counselled etc., he was thinking that it meant related to the matters/things that happened at work, not any matters that related to these three instances where he had been to court. But now he did see that it was a letter of warning and he understood that. That was not because he felt his criminal offences at home were irrelevant to his employment .

27 Mr Silling deposed that over the years he had experienced a number of domestic issues, which he believed had been aggravated by the stress and strain of duties as a Correctional Officer and his failure to either seek, or to be provided by CSNSW, with any medical or psychological assistance. He indicated that he didn't realise until recently that he needed some professional help.

28 Mr Silling also stated that he had always accepted the responsibility that went with being a Correctional Officer, had an excellent record as a Correctional Officer, believed that he was held in high esteem by his supervisors at the Goulburn Correctional Centre, and in particular, the General Manager and Manager of Security.

29 Mr Silling deposed that throughout his career as a Correctional Officer he had worked at the Goulburn Correctional Centre and had always tried to perform his duties to the highest possible standard. He had also undertaken a range of courses, which he believed would make him a better Correctional Officer, and for which he had received appropriate Certificates (as detailed in Exhibit 1).

30 Mr Silling also attached to his statement letters of commendation he had received in relation to specific incidents that had occurred during the course of his employment.

31 Mr Silling deposed that in relation to the 1998 incident where he assaulted his wife, he realised that he had done the wrong thing so he immediately presented himself to the Goulburn Police Station and voluntarily participated in an electronically recorded Record of Interview during which he made full admissions in relation to the assault. He was disappointed with his behaviour and apologised to his wife for his conduct towards her.

32 He further deposed that when this matter went to Court he was represented by a solicitor, pleaded "guilty" to the offence of common assault and did not contest the Statement of Facts presented to the Court even though he did not necessarily agree with the accuracy of all those facts. He complied with the provisions of the Bond that was imposed.

33 Mr Silling acknowledged that after the 1998 incident he received a letter of warning from CSNSW.

34 In relation to the incident in 2008 involving his daughter, Mr Silling deposed that immediately after this incident he again went to the Goulburn Police Station and reported that he had assaulted his daughter. He maintained that although his daughter did not wish for him to be charged, the Police took matters into their own hands and he was charged with common assault. He was extremely remorseful for his actions and apologised to his daughter, but said that there were issues in his domestic life which had led him to behave in what was a "totally unacceptable manner".

35 In Mr Silling's statement he indicated that he did not totally agree with the Facts as presented by the Police to the Court in relation to this assault. In cross examination Mr Silling acknowledged that at the time he did not dispute those Facts, and then indicated some clarification about the nature of the damage to the wall that occurred. He maintained that in doing so he did not seek to downplay the seriousness of the incident.

36 He also indicated that when he went to Court in 2008 he was able to rely on references provided to him by other Correctional Officers and by some of the Senior Officers at Goulburn Correctional Centre (as attached to his witness statement).

37 Mr Silling acknowledged that after the 2008 incident and his Court appearance, he received a letter from Deputy Commissioner McLean on 20h November 2008 advising that he was considering imposing disciplinary action and inviting him to make a submission in response. Mr Silling duly made submissions but never received a reply and no penalty was imposed upon him, nor was he warned that any further conduct of this nature would jeopardise his employment and could lead to his dismissal.

38 Mr Silling deposed that in relation to the assault on his wife in January 2011 he voluntarily attended Goulburn Police Station, made full admissions and co-operated fully with the Police investigation. The next morning he reported the matter to his General Manager.

39 He deposed that it was this last incident that made him realise that he needed to seek some help in relation to his anger management and so he sought counselling from Jan Sherring at Southern Regional Services Pty. Ltd. He also sought assistance from his local doctor, Dr Kyaw, and was prescribed anti-depressants. He was still currently attending counselling with Jan Sherring one day per week, still taking the anti-depressant medication and said that his wife had noticed a positive change in his demeanour and a substantial improvement in his personality.

40 Mr Silling maintained in cross examination that it was not until the third assault involving his wife that he realised he needed professional help. He had previously hoped it was "an aberration" and that it would never happen again but when he snapped and it happened, he realised that he could not just trust to luck or hope it never happened again, and that he needed help. He went and got professional help to change his behaviour so that it never happened again.

41 Mr Silling believed that neither the General Manager, nor the Manager of Security at Goulburn Correctional Centre, were contacted prior to the decision being made to terminate his employment. This was despite the fact that he had indicated in his 7 April submission to Deputy Commissioner McLean that they had both expressed their willingness to speak favourably on his behalf in relation to his work performance.

42 Further, although he had indicated in that submission that his wife was the best person to be consulted in relation to the changes that had occurred in his personality and behaviour since commencing counselling, she was also not contacted by any officer of CSNSW to discuss how he had improved prior to the decision being made to dismiss him.

43 Mr Silling deposed that although the Local Court, on each of the three occasions he had appeared before it, had deemed him as a person suitable to receive the benefit of its leniency, as reflected in the light penalties that were imposed, CSNSW had imposed the most severe and ultimate penalty of dismissal, to punish him for something that was not related either to his work or his ability to carry out his duties as a Correctional Officer. Mr Silling believed that this penalty far outweighed the severity of his conduct.

44 Mr Silling deposed that he deeply regretted, and had been humiliated by, all the incidents that had brought him to the attention of the Local Court, which he believed could have been prevented if he had sought medical assistance earlier. He had now taken positive steps to address his offending behaviour and felt better for having done so.

45 Mr Silling also stated in oral evidence that after each of the three assault matters he reported to the General Manager, in person, the next day, that he had been charged and had to attend court and after going to court on each occasion he submitted a report to say he had been to court and the outcome.

46 Mr Silling maintained in cross examination that the reason he went to the Police Station on each occasion was because he thought it was the right thing to do and he accepted responsibility for his actions and not because he thought he could "work something out with the police" (in the incident involving his daughter) or because his wife/daughter indicated an intention to call/contact the police.

47 Mr Silling deposed that he did not recall the incident referred to in the letter of termination (the non-use of video during use of force on an inmate in 2003) and had no recollection of having received any counselling about the incident.

48 Mr Silling acknowledged that he was a law enforcement officer and referred to his submission to Deputy Commissioner Mclean where he said "I also acknowledge that given that I hold a position of a law enforcement officer my behaviour was unacceptable". He went on to say that he was ashamed that he was a prison officer and had been to court on three occasions.

49 Mr Silling concluded by stating that he had enjoyed his role as a Correctional Officer and had attempted to make a contribution in a positive manner in all his dealings with the inmates. It was for this reason that he had completed as many courses as possible. He did not hold any other qualifications and believed he would find it difficult at the age of 49 years to obtain employment with a similar remuneration.

50 Mr Silling gave evidence that on his termination he immediately registered with Mission Australia as a job seeker, had made about 20 applications for jobs, but the only job he had heard back from, and that he was currently undertaking, was as a casual labourer working in Canberra, digging holes, barrowing heavy loads and whatever needed doing on a construction site. He had been doing that for about 5 weeks. He had also undertaken and obtained the relevant OH&S white card, undertaken traffic controlling training as well as obtaining a HR truck licence.

51 Mrs Silling deposed that during the time she had worked at the Goulburn Correctional Centre she had carried out duties working in reception as Property Manager, as assistant to the Manager of Security, mail processing, in the Segregation Unit, Protection Wings, Remand Wing, Minimum Security, Intelligence Officer, Case Manager and Night Senior in charge of the entire complex in the absence of the Manager of Security. She had also worked at Berrima Correctional Facility which houses both minimum and medium security female offenders.

52 She deposed that during her marriage, and whilst Mr Silling was a Correctional Officer, she became aware of various incidents in which he was involved during the course of his employment. She gave specific examples of an incident where he had been threatened by a inmate with a razor blade melted into a knife and attacked, as well as incidents of being threatened and assaulted by individual inmates.

53 She deposed that during a routine move of inmates instigated by management an inmate punched her husband in the mouth. Her husband took the inmate to the ground and secured him in a cell. The video of this assault on her husband was now used as a training video by CSNSW. At no time after this incident was her husband offered any counselling, nor did he have his injury attended to by management as it occurred late in the afternoon and prior to the staff Christmas party.

54 Mrs Silling deposed that she believed that the two incidents involving herself and her husband which resulted in him being charged with common assault were the end result of work stresses to which either she or her husband had been subjected.

55 Mrs Silling also deposed as to other external issues/personal situations which impacted on them both in 1998 causing anxiety and stress. She also deposed as to background circumstances she considered of relevance in relation to the assaults in 2008 and 2011.

56 Mrs Silling also deposed that during his probation period following the Court attendance in February 2011 her husband had been working on a domestic violence course. She said that the effect of these treatments upon her husband had been "dramatic" and that he appeared to have almost no mood swings, was much more willing to listen and was considerably more thoughtful. She went on to say that her husband had expressed his contrition to her and their daughter on a number of occasions in relation to the incidents that led him to appearing before the Local Court. His relationship with their daughter had improved considerably and this had had been assisted by the counselling he had been attending and the medication he was taking.

57 Mrs Silling deposed that prior to her husband being dismissed by CSNSW she was not contacted by anyone from CSNSW regarding the positive changes or improvements in her husband's demeanour since he commenced his counselling and medication.

58 Mr Cosgrove's evidence generally dealt with the facts and relevant documentation concerning Mr Silling's three assault convictions and is set out in the Background and Chronology above.

59 Mr Cosgrove deposed that CSNSW did not have trust and confidence in Mr Silling "given his history of criminal offences and fundamental incompatibility of that history with his role as a law enforcement officer."

60 He further deposed that reinstatement would not be practicable in the circumstances.

61 Mr Cosgrove acknowledged in cross examination that the letter of 23 October 2002 from the Professional Conduct Management Committee did not contain the words "counselling" or "counselling session" and that to the extent that he had described Mr Silling as having been "counselled", the only thing he based that upon was that letter.

Submissions on behalf of the Applicant

62 Mr Hatcher submitted that the facts of the matter were largely not in dispute. Beyond a minor issue about whether he was counselled about something, it was clear that Mr Silling had an excellent and unblemished employment record.

63 It was submitted that in relation to the three offences committed by him in 1998, 2008 and 2011 the Commission could rely upon Exhibit 2 which was the facts of each matter as they went before the Criminal Courts and in respect of which Mr Silling was sentenced.

64 Mr Hatcher submitted that clearly they were serious matters and it was not sought to downplay any of that, but two observations needed to be made.

65 Firstly, insofar as they were criminal matters, it was the function and duty of the Criminal Courts to punish Mr Silling for those matters as it saw appropriate in accordance with the law and the sentencing principles applying to criminal offences, and that had happened. To the extent that Mr Silling had engaged in conduct of that nature he had answered for it before the Courts and received sentences which the Courts thought appropriate for the offences committed. It was not the job of CSNSW to punish him a second time for those offences. That task had already been carried out by the Criminal Courts.

66 Secondly, whilst it was not sought to downplay the seriousness of the matters referred to in Exhibit 2, at the same time there were certain objective facts which needed to be borne in mind concerning those matters as follows:

1. In respect of the first two matters the Courts saw fit not to record a conviction, that was an objective fact arising from what the Courts decided, that it was at the lower end of criminality. Clearly Mr Silling could not have hoped for that outcome on the third occasion and did not have that outcome. A conviction was recorded on the third occasion but the sentence imposed upon him was a nine month good behaviour bond expiring on the 23 November 2011.

2. The nature of the charges presented against Mr Silling on each occasion arose under the relevant provisions of ss.59 and 61. However on each occasion Mr Silling was charged under s.61 of the Crimes Act - an 'assault not occasioning actual bodily harm'. In cross-examination the issue was raised as to whether it was Mrs Silling or Mr Silling's daughter that was injured. Whilst there might be a debate about what constitutes that, for the purpose of the Police themselves bringing charges, they elected to charge Mr Silling under s.61, that is, 'assault not occasioning actual bodily harm'. That could be compared to s.59 which refers to 'assault occasioning actual bodily harm." Without seeking to downplay what occurred that meant that it was treated as 'not occasioning actual bodily harm' for the purpose of sentencing.

67 Mr Hatcher submitted that the critical question for consideration by the Commission was what connection was there between Mr Silling's off-duty conduct and his employment, such as to justify his dismissal in terms of what was just and reasonable. It was incumbent upon CSNSW to demonstrate, not in some abstract sense, but in a real and practical sense, that there was some connection between the off-duty criminal conduct and employment such as to render Mr Silling's dismissal just and reasonable.

68 Mr Hatcher referred the Commission in some relevant detail and in summary, to the following decisions concerning the relationship between off-duty conduct and employment; McManus v Scott-Charlton (1996) 70 FCR 16 at p16; and in particular the principles arising from Rose v Telstra Corporation (1998) AIRC, 4 December 1998 [Print Q9292] as applied in Anthony Farquharson v Qantas Airways , U2005/1006, 10 August 2006, and New South Wales Attorney-Generals Department v Miller [2007] NSWIRComm 33.

69 Mr Hatcher also referred the Commission to Martin Evans v NSW Police [2005] NSWIRComm 404 but in doing so emphasised that Police cases were in a 'special category' because Police Officers unlike virtually any other branch of employment had obligations to enforce the law that operated at all times even when they were not on shift, so whether within their own street or their own house, they had obligations as Police Officers to enforce the law. The stretch of their employment went well beyond the workplace and operated perpetually. They also had a constant interaction with the criminal courts which raised special consideration. Further there was also a special statutory regime which had some specific criteria which making Police Officers a separate class.

70 Mr Hatcher submitted that it was not particularly useful to engage in some fact by fact comparison of police cases, particularly given the statutory regime, but submitted that what it did demonstrate was that even in the police context the fact that the applicant, Mr Evans, had been convicted of a serious assault did not by itself, without more, preclude him from obtaining a reinstatement outcome.

71 It was submitted that even if the submission made in respect of the connection between employment and the private conduct was rejected, as an alternative proposition, in all the circumstances, dismissal of Mr Silling would be harsh.

72 Mr Hatcher returned to the primary submission made on behalf of Mr Silling and the propositions laid down in Rose, that being did Mr Silling's conduct cause serious damage to the employment relationship, did it damage the employer's interest, and was it incompatible with the employee's duty as an employee?

73 Mr Hatcher submitted that one of the problems in this case was that CSNSW had adduced no evidence to support those questions being answered in a way that would justify the dismissal. In particular, there was no evidence of the actual reasons why Mr Silling's conduct rendered his continuing employment untenable, or indeed what was even perceived to be the connection between that conduct and his employment. The decision maker was Deputy Commissioner McLean, he continues to be employed by CSNSW but was not called to explain his reasons for deciding to dismiss Mr Silling or to otherwise justify those reasons, and in those circumstances an appropriate inference should be drawn about that.

74 However even beyond that, the documents themselves did not disclose anything of substance beyond the mere fact of Mr Silling's criminal record, but not what it was about those offences which were perceived to interact in a detrimental way with Mr Silling's employment.

75 The Commission was then taken to the relevant documentation as attached to Mr Cosgrove's statement (Exhibit 6 - and as referred to in the Background and Chronology above).

76 In relation to Deputy Commissioner McLean's 'show cause' letter there was reference to the most recent 2011 conviction etc. and the disciplinary actions that could be taken but no explanation as to what it was about the conviction which raised an issue in Mr McLean's mind about Mr Silling's continuing employment. This was a procedural fairness issue, as well as an issue of substance. Mr Silling was never actually told, even in the most general terms, what Mr McLean was concerned about and what it was that put in jeopardy Mr Silling's employment to enable him to answer Mr McLean precisely.

77 Mr Hatcher submitted that it was known by CSNSW that Mr Silling was convicted of this offence but what was completely absent from the 'show cause' letter was any explanation of the connection, even as perceived by Mr McLean, between the offence and the employment. Mr McLean annexed to the letter s.41 of the Public Sector Employment and Management Act , referring to the objects of the part, and which were clearly objects that Mr McLean was obliged to pursue in this matter. But again what was entirely missing was any explanation from Mr McLean as to how those objects were compromised by Mr Silling's conduct. There was no explanation of how his off-duty conduct contravened any identified standard of conduct.

78 Mr Hatcher submitted that CNSW had made references to integrity, and reputation of the Public Service, in abstract, and Mr Silling in cross examination identified that he had made concessions in that regard in his interview with Mr McLean. However, while it was easy to put that in the abstract, what was the substance of the matter in terms of the reputation of the Public Service or of CSNSW. Mr Hatcher queried how it could be said, in any real sense as distinct from the abstract, that the reputation of the Public Service or CSNSW was affected without knowing the basic facts as to who actually knew about these conditions in the first place. Did prisoners know about it? How many officers in CSNSW knew about it? Did the local public know about it? Did anybody else that CSNSW dealt with know about it? It could be assumed that Mr Silling, the counsellors and Probation and Parole had some knowledge about it, but there was no identification of those issues in such a way as to form any conclusion that in any substantial way the reputation of the Public Service or CSNSW had been affected in such a way as to require Mr Silling to be dismissed.

79 Mr Hatcher noted that in the evidence case all these issues applied to an even greater extent but were not found to be sufficient to justify his dismissal.

80 Mr Hatcher submitted that in relation to public interest the same issue applied. It was one thing to say that in the abstract, but there was still a need to identify the concrete ways in which the public interest was actually affected.

81 It was submitted that when the dismissal letter was considered, again what was entirely missing were any reasons beyond the bare fact of the convictions, but not why those convictions and the early matters necessitated his dismissal. It was not possible to have any understanding of what it was that so concerned Mr McLean as to cause him to conclude that he had no alternative but to terminate Mr Silling's employment. The letter simply referred to the fact of the criminal convictions and the penalties, the counselling that never happened, and then there was the decision to dismiss. There was no indication as to what Mr McLean saw was the connection between the convictions or the criminal matters and the employment. There was no knowing whether it was reputation, or whether he thought that some employment standard had been breached, or whether it was some other public interest consideration, or whether it was something else altogether. There were no reasons in the dismissal letter. Mr McLean did not give evidence and under those circumstances it could not be said, having regard to the tests applicable in these sort of cases, that the employer had made out the necessary connection between the off-duty conduct and the employment.

82 The Commission was invited to draw an adverse inference on the fact that Mr McLean had not been called to give evidence about his reasons for the dismissal, the inference being of course that his evidence would not have assisted.

83 It was submitted that the only thing available was Mr Cosgrove's affidavit evidence where he said, (on instructions, it was not his own evidence): "The Respondent does not have trust and confidence in the Applicant given his history of criminal offences and fundamental incompatibility of that history with his role as a law enforcement officer.". That was simply an assertion and begged the question why not? What was it about the offences which affected trust and confidence? What was the fundamental incompatibility of that history with his role as a law enforcement officer?

84 It was submitted that the phrase, "law enforcement officer", was used in the cross examination and it may be accepted that, unlike a Police Officer, a Corrective Services Officer while working on shift in a Corrective Services institution did have obligations to enforce the law in certain respects. However that obligation did not extend beyond the workplace. There was no evidence to the contrary of that, unlike the situation with a Police Officer. Again, what was absent was any explanation, or demonstration, of the incompatibility between the criminal history and Mr Silling's employment.

85 Mr Hatcher submitted that it was not suggested anywhere in the evidence that the fact that Ms Silling, who was regrettably the victim on two occasions, was also a Correctional Officer was any basis to draw a connection between the convictions and the employment and there would be no such connection relying on McManus.

86 Mr Hatcher submitted that what was known about Mr Silling's employment was that he had an unblemished employment record over 15 years and that his colleagues, knowing about his private conduct that had brought him to the attention of the criminal justice system, had attested to the quality of his work, as evident from the documents attached to Mr Cosgrove's affidavit.

87 Mr Hatcher then traversed in some detail the various character references provided by Mr Silling's work colleagues in relation to the 2008 and 2011 Court appearances highlighting relevant passages going to Mr Silling's character and work history and the fact that he had never displayed such conduct at work.

88 Mr H atcher again refuted the suggestion that Mr Silling been counselled in 2002. It was clear from Annexure E to Mr Cosgrove's affidavit that there was no direction for him to be counselled. There was a use of force which was held to be justified and in the letter it could be seen that Mr Silling himself approached the Deputy Governor and said that in hindsight he should have obtained the video camera. He self-reported on what he thought he should have done and there was no counselling, all there was, was a reminder briefing to all staff in HRMU to use the video with no further action taken.

89 Mr Hatcher submitted that it was fair to say that Mr Silling had an unblemished and excellent employment record. Although the Commission was required to make an assessment as to what Mr Silling's future employment conduct might be, the best test of that was what had occurred in the past and what was not found in his employment record was any echo of the type of behaviour which had brought him to the attention of the Police and the courts in his private life on three occasions.

90 Mr Hatcher submitted that for those reasons, and particularly in the absence of any credible evidence being adduced by CSNSW, there was no demonstrated actual, or realistically potential, connection between the off-duty conduct and Mr Silling's employment.

91 It was also submitted that additionally the dismissal was harsh on the following basis:

1. Mr Silling's length and quality of service;

2. The lack of demonstrated relationship between the domestic violence matters and his work;

3. Without downgrading them the offences (as already referred to) should be placed in a proper context;

4. Mr Silling's evident remorse, recognition of his wrongdoing at all times, his cooperation with authorities, his full admissions and his pleas of guilty.

5. Mr Silling had taken steps to deal with whatever personal problems or personal issues caused him to engage in the activity that he did.

6. The consequences of dismissal for Mr Silling.

92 Mr Hatcher submitted that there was some attempt in cross-examination to challenge some of those matters. For example, there was a suggestion that Mr Silling voluntarily told the Police about what had happened because somehow he didn't quite beat the phone call from his wife to the Police. The Commission would reject that type of submission. Mr Silling could have done a number of things which criminal offenders often do in those situations. He could have not said anything to Police, not undergone an interview, or gone straight to a lawyer, etc.

93 It was submitted that what was clear that he did do, at the earliest possible stage, on each occasion, was to go to the Police once he had calmed down from whatever had caused him to engage in that conduct and with expressions of remorse gave a full account of his conduct on each occasion and expressed his sense of responsibility. Additionally, in the sense well known in the criminal courts, he had cooperated with authorities at all relevant times, made full admissions and had not sought in any way to impede any investigation. On each occasion he had pleaded guilty at the first opportunity and always expressed responsibility for his actions. His work colleagues contemporaneously noted what he had been saying in the workplace, that is, the same expressions of remorse, the taking of responsibility and the determination to ensure that it did not happen again.

94 Mr Hatcher submitted that the remedial steps Mr Silling had taken, as he emphasised and explained in evidence, was done not to excuse anything he did, but to make clear that he recognised the problem was himself, and not with a problem with anyone but himself. There were two matters upon which he had placed great significance. First - the counselling, and his evidence was that probably for the first time recognised for himself that he had a problem and that this was not some aberrant behaviour which may never happen again. Second - he had taken anti-depressant medication which has had a significant impact on his behaviour.

95 It was submitted in respect of the second matter that significantly there was the evidence of his wife, Marie Silling, who was not required for cross-examination and accordingly, her written evidence could be accepted. She gave context to some of the offences, and while it was acknowledged that Mrs Silling was not in any sense an expert who was able to give any expert diagnosis about Mr Silling's psychology, but as his wife and partner married to him for 27 years, together for 33 years, her evidence would be accepted by the Commission in the ordinary way as coming from somebody who could give a great deal of insight into Mr Silling's behaviour.

96 Mr Hatcher submitted that critically, the Commission could take comfort in what Mrs Silling, the victim of the most recent assault, had said in her witness statement, that having regard to the counselling, the medical treatment and the other matters she identified -... "The effect upon Michael has been dramatic and his mood swings have almost gone, much more willing to listen and considerably more thoughtful." She also said that his relationship with their daughter had improved considerably and had been assisted by the counselling and medication. Again this was not challenged. Thus, Mrs Silling had sufficient confidence in him as a victim of assault on two occasions to make those statements and on her unique perspective the Commission was entitled to place a great deal of reliance on her judgment of the matter.

97 In relation to the consequences of dismissal on Mr Silling there was uncontested evidence. They lived in a regional area and the Commission could take judicial notice of the problems of obtaining alternative employment in a regional area. It was suspected that CSNSW was one of the major, if not the major, employers in the area. Further, Mr Silling had described the difficulties he had in obtaining alternative employment and the best he has obtained was some casual labouring work. In terms of the pay slips it was clear that if he was not reinstated he would continue to suffer a considerable loss of income as a result of the dismissal which would have consequences not only upon him, but also upon his family in terms of their household income.

98 Mr Hatcher submitted that the remedy sought by Mr Silling was reinstatement. Again, apart from the assertion contained in Mr Cosgrove's affidavit, which was simply a statement on instructions that reinstatement would not be practical, there was no actual evidence to give any substance to that proposition. A mere assertion would not be sufficient to preclude reinstatement if the Commission was otherwise satisfied that the dismissal was harsh, unjust or unreasonable. Back pay was also sought, calculated by reference to the income he had earned. It was accepted that this was a case where the Commission may consider whether an order for back pay would be paid.

Submissions on behalf of the Respondent

99 Mr Prince generally agreed that that the facts were relatively uncontroversial.

100 In reply to Mr Hatcher's submission as to the absence of a connection with the employment Mr Prince submitted that at the heart of this matter was the fact that Mr Silling had been found guilty three times for serious offences against women. The fact that not all of them were convictions recorded did not matter for the purposes of s.48 of the PSEM Act. What CSNSW was concerned about was the public interest and the probity and appropriateness of having a person employed by the Crown, and in particular employed in the criminal justice system, having committed criminal offences whilst an employee.

101 Mr Prince submitted that the cases referred to by Mr Hatcher almost all occurred in a private situation, not a government situation. There were some public servants involved, but none of them were law enforcement officers. The Police cases were a separate issue altogether, and none of them involved three instances of admitted criminal conduct.

102 It was submitted that even assuming that some connection needed to be drawn, the submissions made on behalf of Mr Silling were not consistent with the evidence in the sense that Mr Silling knew that what he did brought the service into disrepute. He knew and admitted this in his interview with Deputy Commissioner McLean - that given he holds a position as a law enforcement officer his behaviour was unacceptable, that he tarnished the reputation and integrity of CSNSW and the good standing of all Corrective Services officers.

103 Mr Prince submitted that the test was not which members of the public were offended and who knew. The test was whether this conduct was incompatible with his position as a law enforcement officer. The fact that it happened in the home one would have thought was no longer in these days something which took it out of the public domain. These incidents were the subject of criminal charges which were dealt with by open criminal courts in the area in which he lived. The idea that because CSNSW had not adduced evidence from any members of the public etc., about how outraged they were that this has happened, had no impact or bearing on the point that his conduct was fundamentally inconsistent with his duty as a law enforcement officer.

104 It was further submitted that the Commission was entitled to express that view based on the admitted criminal conduct, Mr Silling's duties and his understanding of those duties. This matter was not an appeal from the decision of the Deputy Commissioner. It was a question of whether or not in all of the circumstances the dismissal was harsh, unjust or unreasonable and all of the circumstances meant all of the criminality that was engaged in by Mr Silling.

105 Mr Prince took the Commission to Mr Silling's first letter of warning in 1998 from Senior Assistant Commissioner Woodham (as he then was) and submitted that Mr Silling agreed in cross-examination that he had understood what had been put to him in that letter. It was stating the obvious, as the Senior Assistant Commissioner had said, that the use of violence against a woman was abhorrent and could never be justified.

106 Further it was known by Mr Silling as early as 1998 that it was expected that all officers, whether on duty or not, would act lawfully all the time and that s.3 of the Code of Conduct and Ethics reminded staff that their behaviour off-duty would be a concern to the Department if it was unlawful or had the potential to bring the Department into disrepute. Mr Silling knew that in 1998, and knew it in 2011 when he attended to the interview with Deputy Commissioner McLean.

107 Mr Prince submitted that there was no statement in the transcript of the interview, which was accepted by Mr Silling as being accurate, about not being on fair notice about what the real issues in the case were, or that the real concerns of the Deputy Commissioner had not been outlined to him in a reasoned and comprehensive way. He knew what he had done wrong. He knew that it was fundamentally inconsistent with his role as a law enforcement officer, and he was right about that.

108 Mr Prince submitted that it was not to the point to say that the Deputy Commissioner must come to the Commission and say that having committed three criminal offences was incompatible with one's duties as a law enforcement officer. When the 'show cause' letter was sent to Mr Silling putting him on notice, he was provided with a copy of s.41 of the PSEM Act which states that the objects of that part of that Act are to protect and enhance the integrity and reputation of the Public Service and to ensure that the public interest is protected. That finds expression in s.48 of the PSEM Act which provides that disciplinary action may be taken if an officer is convicted of a serious offence. In that regard Mr Silling was not just convicted of one serious offence, he fell within that section (and in particular subsection 3), on three separate occasions during the course of his employment.

109 Mr Prince submitted that the legislature set out the standards expected of public servants and those standards applied a fortiori when a person was charged with a duty by criminal legislation to uphold the law.

110 Mr Prince went on to indicate that it had been said many times during the evidence, "I don't want to downgrade what happened", however it was then constantly being said, notwithstanding that domestic violence was viewed in the community in a most serious of ways (and rightly so), that there were a whole range of factors that either explained or put in context, or somehow should be taken into account, but not to downplay the seriousness of the offence.

111 Mr Prince submitted that the seriousness of the offences could not be downplayed as demonstrated by what Mr Silling's counsel said in the 2011 hearing before the Local Court (at p 80 of Mr Cosgrove's affidavit) as to his awareness of the consequences of facing a third conviction and having to deal with that himself.

112 It was further submitted that this was not a question of punishing Mr Silling.

This was a question of the proper natural consequences that flowed from his criminality and his criminal conduct on three separate occasions. Nobody asked Mr Silling to engage in that criminal conduct. If it had unfortunate consequences for him, well so be it, but he knew as early as 1998 that this behaviour was not acceptable to the Department of Corrective Services, particularly in light of his position in the community as a law enforcement officer. CSNSW did not see any indication in the evidence of any attempt by Mr Silling, at that time or since, to draw the distinction now sought to be drawn on his behalf between what happened in private and what happened at work and the need for such a connection to exist.

113 Mr Prince submitted that there was no letter from Mr Silling or anyone else to the Department of Corrective Services back in 1998 saying that he did not accept that this was a proper, lawful and reasonable direction to him because it was related to his private conduct. There was no skerrick of instance of him saying so even in the interview with Deputy Commissioner McLean. He rightly accepted that his conduct was connected with his employment because it was inappropriate, unacceptable in his position as a law enforcement officer and it tarnished the reputation and integrity of the service and the standing of officers.

114 Mr Prince submitted that this argument as advanced on Mr Silling' behalf just did not stack up with the evidence and the argument itself still seemed to not really come to grips with the seriousness and the inappropriateness of the conduct in which Mr Silling engaged. That was a matter of great concern to CSNSW and it should be a matter of great concern to the Commission. These attempts to split or to bifurcate what happened at home and what happened at work for the purposes of exculpating Mr Silling from the consequences of his actions, qua work, really did not give one faith in the level of contrition that he was expressing or had expressed in relation to the offences that had occurred.

115 In response to the cases cited by Mr Hatcher , Mr Prince pointed out that in Farquharson v Qantas there was no criminal offence, no s.48 and the person was not a law enforcement officer. Similarly in Rose v Telstra Corporation this did not occur in a law enforcement context, there was no s.48 and there was no conviction or proven criminal conduct. In Attorney General v Miller there was no criminal conviction and s.48 was not relevant. It was agreed, in relation to Evans v Police , that that case said it was not automatic that the commission of a criminal offence would automatically lead to termination from NSW Police. No one was suggesting that the commission of an offence automatically leads to the requirement that Mr Silling be dismissed from the Public Service.

116 In this matter Mr Silling had committed three criminal offences and it must be asked how many more criminal offences did he need to commit before the consequences would be born by him in terms of the incompatibility with his employment as a law enforcement officer.

117 Mr Prince also pointed out that in Evans , what his Honour the President found was that the conduct of Mr Evans in participating in the assault of Mr Gleeson (a pub brawl) was 'an aberration'. There was no suggestion that this was Mr Evan's third offence, that he had previously engaged in similar offences or that he had received the sort of warning that Mr Silling had received in 1998 from Mr Woodham. That warning had made it absolutely plain - he was lucky to have been able to address his behaviours and change his behaviour and be given that chance, it was being done on the basis that he would not re-offend.

118 Mr Prince submitted that on the factual circumstances Evans could be distinguished from Mr Silling's case and could not be used as authority to suggest that in this case the outcome ought to be that Mr Silling should be re-instated to a role as a law enforcement officer. Similarly Cavanagh's case, which involved domestic violence, could also be distinguished in that the reinstatement occurred only in circumstances where the applicant would not resume active service due to his medical condition (severe depression), the result being reinstatement (without compensation) on terms that had the effect of ensuring he did not return to the Police Service.

119 Mr Prince submitted that in comparison to Cavanagh what was being sought in this case was that this man who had attacked women on three separate occasions in a criminal way be sent back to work as a prison officer. Mr Prince went on to query what type of message that would send to the community and how was that in the public interest. Mr Silling was in that workplace charged with enforcing the law. This was not an abstract concept, but a concept which all of those involved in the process of administering and upholding the laws of this State, including Mr Silling, were well acquainted.

120 Mr Prince rejected both the criticism of Mr Cosgrove's evidence and of the Deputy Commissioner for not giving evidence, submitting that it was incorrect to say that an adverse inference could be drawn against his not giving evidence to the Commission. This was made plain in Jones v Dunkel . The only inference that might be drawn was that his evidence would not assist the case and would not take the case any further.

121 Mr Prince submitted that it was important to recall that in the 1998 incident there was also a 12 month AVO issued in respect of the complainant. The idea that everything had moved on and all was well and happy by the time the matter came to the Court on 23 February 2011 could be rejected simply by reference to the fact that an AVO was sought, and made, preventing further instances of violence. Mr Silling had been down this path before of telling people that everything was better, the situation at home had been resolved, the stresses have been released and it was not going to happen again. He had said it in the 1999 Probation and Parole notes to which he was taken in cross examination.

122 Mr Prince submitted that in relation to Mr Silling this was not a situation of 'an aberration', but three instances of serious violent offences occurring in respect of women in the home, one of whom was his own daughter and in front of his own granddaughter, and that was somehow supposed to be compatible with the idea of him enforcing and upholding the law and holding other people to their obligations under the law in his role as a Corrective Services Officer. That was simply not a proposition that would, on an objective view, be accepted as maintaining public confidence in the integrity of the Service. While Mr Silling said his concern was about his family, not about the Service, the employer was entitled be concerned to protect the interests of the Service and that is what it had done and this dismissal was in the public interest.

123 Mr Prince submitted that in terms of the reinstatement being sought the arguments were the same. It would be completely inappropriate to reinstate a man who had engaged in three acts of criminal conduct to a role in upholding the law.

Submissions in reply on behalf of the Applicant

124 In reply Mr Hatcher drew the Commission's attention to the decision of the Magistrate in sentencing Mr Silling in relation to the 2011 incident and how the Magistrate, in dealing with the matter criminally, assessed what had occurred and matters such as the reference to the wake up call, the medication, the anger management etc., all leading up to the outcome which pertained and which supported the conclusions that had been submitted on Mr Silling's behalf in this matter.

125 Mr Hatcher submitted that the Commission was entitled to draw an adverse inference from Deputy Commissioner McLean's failure to give evidence because, in the absence of any proper reasons in any of the documents, he was the only one who could have actually told the Commission what the actual reasons were for the dismissal. That was in a context where in any unfair dismissal case the critical issue was to assess the dismissal against the reasons given for the dismissal to see what they could justify. The Commission had been put in a difficult position of not knowing precisely what it was about these offences which caused Deputy Commissioner McLean concern and it became difficult to assess what he had in his mind as against what actually happened.

126 Mr Hatcher acknowledged that s.48 of the PSEM Act empowered dismissal in certain circumstances, but submitted that was nothing to do with whether, in any given circumstances, a dismissal was harsh, unjust or unreasonable.

127 Mr Hatcher concluded by again emphasising that in this matter there was no evidence as to what it was about Mr Silling's convictions that made his employment untenable from a practical point of view, other than broad abstract propositions about public interest, integrity and reputation. However when it came to actually saying what it was that would prevent this man doing the job that he had done so well for 15 years there was nothing. In the absence of that the Commission was entitled to conclude that there was not a proper connection between this conduct and his employment and even if there was some sort of connection it was not of a sufficient nature such as to justify his dismissal.

Consideration

128 I have very carefully considered the evidence and submissions of the parties, together with the authorities upon which they relied.

129 There is no dispute as to the factual circumstances that ultimately resulted in the dismissal of Mr Silling. The only issue that CSNSW cavils with is whether Mr Silling would have gone straight to the Goulburn Police Station and reported the assaults on his own initiation had there not been either an immediate phone call by his wife to the Police (the 1998 incident) or the threat by his daughter to call the Police (the 2008) incident. That was strenuously refuted by Mr Silling.

130 I accept that Mr Silling took immediate and prompt action to report the incidents himself, cooperated in police interviews, made admissions and subsequently pleaded guilty to the very serious offences he had committed. Offences committed against his wife and daughter (in the latter case with his infant granddaughter witnessing the assault). He also promptly reported each incident to his Managers at Goulburn Correctional Complex and provided detail about his court appearances and resulting convictions.

131 On any view his conduct was reprehensible and abhorrent. However the issue for determination here is whether, in all of the relevant circumstances, it was harsh and/or unjust and/or unreasonable for CSNSW to dismiss Mr Silling from his employment as a consequence of those offences and the resulting criminal convictions and penalties imposed, and sufficiently so as to warrant the intervention of the Commission.

132 Having had the opportunity of considering the uncontested evidence of Mrs Silling, hearing the evidence of Mr Silling, and having the opportunity of considering his demeanour throughout the proceedings, I accept that Mr Silling is genuinely remorseful for his actions; now realises that it is he that has a problem (where he did not appreciate that before), and has sought appropriate counselling and medical treatment - counselling and treatment which is clearly having a positive effect and impact. The ongoing improvement in his relationships with his wife and daughter clearly indicates that, as does his acknowledgement and acceptance of his behaviour and its consequences, as well as his need for treatment and counselling.

133 Mr Silling had an absolutely unblemished 15 year record as a Senior Correctional Officer at the Goulburn Correctional Complex, clearly one of the most challenging locations in the State. His employment record is exemplary. He has also undertaken, at his own initiation, a range of additional training to enhance and broaden his skills. Skills that are not readily transferable. He has letters of commendation to support his work. Further, a number of his senior supervisory officers were prepared to write letters in his support for use in both the 2008 and 2011 Local Court convictions. Those letters clearly indicate the regard in which he is held, both as a person and as an entirely satisfactory employee. There was not one skerrick of evidence advanced to suggest otherwise, despite CSNSW seeking to almost vilify Mr Silling on the basis of the offences he had committed.

134 I do not accept that the there has been any previous "counselling" in relation to Mr Silling's work performance. As Mr Hatcher rightly points out the letter issued in 2002 makes no mention of that whatsoever , merely that Mr Silling had approached Deputy Governor West after the incident and indicated that, in hindsight, he ought to have obtained the video camera. Again an example of self-reporting by Mr Silling. There is reference to all staff being briefed, action taken at the local level with no further action required, and all documents and files to be marked accordingly. The only specific comment about Mr Silling's actions were to say that the PCMC "agreed" the use of force was necessary. I fail to see how Deputy Commissioner McLean could have remotely relied on either this incident or the letter issued, as he clearly did, as being "employment matters" and of relevance to his decision to dismiss Mr Silling. Such reliance was incorrect and was, in itself, harsh, unjust and unreasonable, on any consideration.

135 The Commission has been referred to relevant sections of the Public Sector Employment and Management Act 2002 as follows:

41 Objects of Part

The objects of this Part are as follows:

(a) to maintain appropriate standards of conduct and work-related performance in the Public Service,

(b) to protect and enhance the integrity and reputation of the Public Service,

(c) to ensure that the public interest is protected.

48 Disciplinary action may be taken if officer is convicted of serious offence

(1) If an officer is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more, or is convicted elsewhere than in New South Wales of an offence that, if it were committed in New South Wales, would be an offence so punishable, the appropriate Department Head may :

(a) decide to take disciplinary action with respect to the officer, or

(b) decide to take remedial action with respect to the officer.

(2) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking.

(3) A reference in subsection (1) to the conviction of an officer for an offence punishable by imprisonment for 12 months or more includes a reference to the officer having been found guilty by a court of such an offence but where no conviction is recorded. (Emphasis added).

136 However as Mr Hatcher rightly points out all that has been put before the Commission to support the reliance placed on those sections of the PSEM Act are abstract concepts, which being in the abstract, just like many other worthy moral principles, could only be supported, but as to how those concepts actually and practically (and relevantly) relate to Mr Silling's particular circumstances is completely unknown because there is a complete lack of evidence to assist the Commission in that regard.

137 There is just no evidence whatsoever as to how Mr Silling's "work related performance" either has been, or could be affected, by the criminal convictions he has received and how that part of s.41(a) is therefore relevant.

138 There is no evidence before the Commission that the criminal convictions of Mr Silling have, or will, adversely affect either the integrity or reputation of either the Public Service or CSNSW, merely assertions made on behalf of CSNSW and a somewhat simplistic assumption that because the convictions are of a criminal nature relating to assault in a domestic violence context that must of necessity be adversely relevant because Mr Silling is charged with enforcing the law against those who have also been charged, found guilty and sentenced for criminal convictions. However there is no evidence whatsoever that this has compromised or affected his work performance in any way in the past, nor that the integrity, reputation etc., of CSNSW has been adversely affected arising from the earlier 2 convictions, nor indeed that the public interest had been adversely affected in some, or indeed, in any way.

139 True it is that following the 2008 assault conviction Mr Silling was sent a 'show cause' letter by Deputy Commissioner McLean to which he duly responded in writing. However Mr Silling heard nothing further due to an unknown "administrative oversight" (no further explanation was forthcoming in evidence) and was, in such circumstances, not unentitled to consider that there was no on-going or potential issue with his employment.

140 The submissions made on behalf of CSNSW that Mr Silling's continued employment is fundamentally incompatible with his role and duties as a 'law enforcement officer' begs the question of why that was not the case between 1998 (the first assault and conviction) and 2008, and also between 2008 (the second assault and conviction) and 2011. The only qualitative difference appears to be in the penalties imposed: 1998 - a Section 556A Recognizance Order for 18 months; 2008 - a Section 10 Good Behaviour Bond for 12 months, and lastly in 2011 a Section 9 Good behaviour Bond for 9 months. Each conviction involved supervision by the NSW Probation and Parole Service, supervision that was being complied with fully and being carried out while he was a 'law enforcement officer' at Goulburn Correctional Facility and in the full knowledge of his managers/supervisors and apparently without any demur or issues arising. Certainly nothing has been put forward to suggest that either his managers/supervisors or those co-workers/senior officers who came forward in both 2008 and 2011 prepared to put in writing their support and endorsement of Mr Silling had any articulated qualms about Mr Silling continuing to work as a 'law enforcement officer' with them.

141 Nor does it appear that between 1998, and through 2008, and up to the beginning of 2011, there was any discernable or identifiable impact or affect on the integrity and reputation of either the Public Service generally or CSNSW in particular. Certainly nothing concrete has been brought to this Commission to suggest in any way that that was a consequence or result of Mr Silling's first 2 convictions.

142 There has been absolutely no evidence whatsoever from those in direct contact with, or having supervisory authority over, Mr Silling at the Goulburn Correctional Complex as to whether these criminal convictions, did in the past, do in the present, or will in the future, raise concerns/affect his position/work performance or that of other employees or inmates or have any other adverse implications.

143 I also note that there is no reference to whether or not Mr Silling was suspended from his duties (either with or without pay) or directed to go on leave following the notification of his third conviction . However in his s.84 application in answer to question 16 as to Last day worked (if different from answer to question 15) it in note "NOT APPLICABLE" . On that basis I consider that, in the absence of any information to the contrary, that he continued to work at the Goulburn Correctional Complex fulling his normal duties without evidence of that raising any concern or issue up until the day he was dismissed by the letter of 10 June 2011. I also note that apparently his last day of work (as notified in the s.84 application) was the 17 June, some 7 days later.

144 The only justification advanced by CSNSW for Mr Silling's termination, as referred to in the letter of 10 June 2011 from Deputy Commissioner McLean, is apparently the mere fact that he had received the three criminal convictions and the "employment matter" of the counselling in 2002.

145 There were also no reasons advanced in that letter as to why that required that he actually be terminated. Mr Cosgrove's evidence simply asserts that CSNSW " ... does not have trust and confidence in the Applicant given his history of criminal offences and fundamental incompatibility of that history with his role as a law enforcement officer". Mr Cosgrove then goes on to state "..that reinstatement would not be practicable in the circumstances".

146 Again, there has been absolutely no evidence, merely assertions, before this Commission as to why reinstatement would be impracticable and just what constitutes "the circumstances" (other than the mere fact of the 3 convictions). Nor is there any evidence as to the impracticability of reinstatement from those who would be directly supervising Mr Silling or working with him. I would have thought such evidence, in the context of the nature of the workplace, not to mention the nature of the position to which Mr Silling seeks reinstatement, would be particularly relevant.

147 Great reliance has been placed in submissions on behalf of CSNSW that Mr Silling himself admitted to Deputy Commissioner McLean in the interview of 12 April 2011 in apologising for "tarnishing the reputation and integrity of Corrective Services New South Wales and for harming the good standing of all Corrective Services Officers". That was Mr Silling's opinion. Nowhere is there any evidence that CSNSW agrees with or endorses that opinion or that that is actually what has happened, apart from the assertions made in submissions.

148 It must also be noted that this interview took place at the request of Mr Silling, taking up the invitation made by the Deputy Commissioner in the 'show cause ' letter of 9 March 2011. Mr Silling did all of the talking. It was very much a 'mea culpa' exercise where essentially Mr Silling was putting verbal submissions in which he expressed remorse and contrition for what had happened; accepted responsibility for his actions; explained relevant contextual circumstances; the remedial help and assistance he now realised he needed and was actively seeking, as well as his commitment to change for the better. He sought strenuously to continue in his employment. He provided the letters of support upon which he had relied in the 2011 court case (which were taken for subsequent return) as well as providing the information that both his Manager and the Security Manager "had expressed willingness to speak on my behalf favourably". There is no evidence that either of the two managers were indeed spoken to in that regard. Very, very little in fact was said by the Deputy Commissioner who merely listened to the submissions of Mr Silling.

149 However, nothing Mr Silling said at that interview , or wrote in seply to the 'show cause' letter seems to have had any impact on the decision maker, Deputy Commissioner McLean, and was not acknowledged in any way as having even been taken into consideration by Deputy Commissioner McLean in the subsequent letter of dismissal of 10 June 2011.

150 I accept the submissions of Mr Hatcher that the dismissal of Mr Silling has visited significant hardship and financial detriment on him. He has lost a secure job in the Public Service with all that that implies, and a career which he clearly enjoyed and valued and was dedicated to. He has been unable to find comparable work locally, or even within travelling distance, and is frankly unlikely to do so given his particular skills and the circumstances of his dismissal. He has been forced to accept casual labouring work, but even that involves travelling some distance from his home in Goulburn to Canberra.

151 He has clearly taken all appropriate actions to mitigate his loss and his situation to the best of his ability and what is practically available to him. He is to be commended for that.

152 In terms of the authorities upon which Mr Hatcher relies I do consider that they are relevant. I do not consider that the distinctions Mr Prince seeks to make in essentially submitted that such authorities have no bearing on this case or Mr Silling's circumstances are sufficiently valid or carry sufficient weight for the Commission to accept those submissions and discount those authorities as is sought on behalf of CSNSW. I consider that those cases clearly establish the guiding principles as to what is necessary to establish a link between off-duty conduct and employment and are very relevant to my consideration of that issues. I also note that the Commission was not referred to any authorities to the contrary or in support of the submissions made on behalf of CSNSW (apart from the reference to Cavanagh as cited in Evans .)

153 In Farquharson the Full Bench of the Australian Industrial Relations Commission (as it then was) considered the issue of "out of hours" conduct as extensively traversed by Ross VP in Rose, quoted at some length from that decision and then went on to say as follows:

[20] His Honour then formulated a summary of principle which has now been applied on a number of occasions:

"It is clear that in certain circumstances an employee's employment may be validly terminated because out of hours conduct. But such circumstances are limited:

the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or

the conduct damages the employer's interests; or

the conduct is incompatible with the employee's duty as an employee.

In essence the conduct complained of must be of such gravity of importance as to indicate a link to action a repudiation of the employment contract by the employee."

[21] The appellant submitted that Her Honour erred because she found a likelihood of damage rather than actual damage as required by the second bullet point of the summary. There are two answers to this submissions.

[22] First, while summaries of this sort are useful that they are no substitute for the statutory tests, namely was a "valid reason" in the sense of a reason that is "sound, defensible or well-unfounded" ( Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373). Conduct which gives rise to a material risk of damage to an employee's interests, even if there's no actual damage in the particular case, may nevertheless be conduct that attracts the legitimate concern and made us, depending on the circumstances, constitute conduct that provides a "valid reason" for termination of employment. Whether such a termination is nevertheless harsh, unjust and unreasonable, notwithstanding the persistence of such a valid reason, will remain to be determined in the circumstances . (emphasis added)

154 Whilst it could be accepted that CSNSW had a "legitimate concern" as to Mr Silling's conduct being conduct which "damages the employer's interests" and hence constituting a "valid reason" to justify dismissal, there is just no evidence about what was in fact the concern of CSNSW and whether or not it either did, or was likely to, damage CSNSW's interests in any way, or what was the connection between Mr Silling's off-duty conduct and his employment.

155 I accept the submissions of Mr Hatcher that there needs to be such a connection, based on the cases he has cited. CSNSW has not established, on the evidence, that there was a relevant connection between Mr Silling's off-duty conduct and his employment. I do not consider that the mere operation of the provisions of ss 41 and 48 of the PSEM Act mean that such a connection does not have to be to be established by a public sector employer in considering whether or not to dismiss an employee as a consequence of off-duty conduct which concerns a criminal conviction. I consider that each case would have to be determined on its relative merits and all the relevant circumstances applicable.

156 In relation to Mr Silling, I am just not prepared to make findings based on assertions or assumptions of an abstract principle in the absence of actual evidence.

157 It has not been suggested that Mr Silling's three criminal convictions constituted or indicated a "rejection or repudiation of the contract of employment contract by the employee". That it was confirmed by Mr Silling's written submissions (his 9 April letter), and subsequent oral submissions (12 April interview) as made to Deputy Commissioner McLean, as well as his written and oral evidence to this Commission.

158 I do not consider that by his three acts of domestic violence, reprehensible as they might be, he had any intention to, nor did he, repudiate or reject his contract of employment with CSNSW.

159 In considering whether Mr Silling's dismissal was harsh and/or unjust and/or unreasonable I have been mindful of the principles enunciated in the authorities set out below.

160 The expression "harsh, unjust and unreasonable", was considered in Byrne & Frew v Australian Airlines (1995) 61 IR 32 (at p.72). The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 at p.182. Essentially, those cases hold that is not necessary that a termination be found to be harsh and unjust and unreasonable. It can be one, or any, or all, of those three.

161 The meaning of those individual terms was been considered in detail in Samms v Contact Point International [2001] NSWIRComm 18 and that decision has been applied in numerous other decisions of this Commission. I also adopt those considerations.

162 Bankstown City Council v Paris (1999) 93 IR 209, is authority for the necessity of the Commission making a positive finding as to whether the termination was harsh, or unjust, or unreasonable (or any combination thereof) and the grounds upon which the Commission so finds.

163 This approach was reiterated by the Full Bench in National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at paras [64] and [65]:

64 Finally, we stress the importance of a Member of the Commission at first instance in s 84 proceedings dealing expressly and specifically with the tripartite statutory test. As the Full Bench observed in Outboard Marine Pty Ltd T/As Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183, in order to avoid the possibility of misunderstanding or error, the tribunal should state explicitly the basis upon which it is considered that a dismissal was unfair or not unfair. That is to say, whether the dismissal was or was not harsh, unreasonable or unjust.

65 In the present case, Cambridge C found that the dismissal of the applicant was not harsh, unreasonable or unjust and we consider an examination of the Commissioner's reasons support his conclusion. It would have been preferable, however, if the Commissioner had spelt out in clear terms why, under each limb of the tripartite test, the dismissal was not an "unfair dismissal".

164 In Department of Health v Perihan Kaplan [2010] NSWIRComm 65, the Full Bench considered the issue of whether a dismissal could be found to be harsh if the employer had exercised its legal right to dismiss an employee due to that employee's conduct, and in doing so observed as follows:

THE FINDING OF HARSHNESS

25 The appellant sought leave to appeal upon the basis of certain errors which were said to attend upon a finding by Ritchie C that the dismissal of the respondent was harsh. That finding was made pursuant to s 84(1) of the Act and involved mixed questions of fact and law: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at [4] ( 'Burge' ) (also applying Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 at [181 - 182] and Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at [59].

26 One ground relied upon for this challenge was predicated upon a legal proposition that a dismissal which was based upon conduct by an employee, which constituted a breach of a fundamental and essential term of the contract of employment, "would necessarily not be harsh". No authority was given in support of that proposition except for an authority which was said to demonstrate that, in the contemporary common law of employment, an implied term may be found in every employment contract that the employee owes the employer a duty not to act in a manner likely to destroy or seriously damage the relationship of trust and confidence between them: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2007) 69 NSWLR 198. The appellant's contention would appear to be that a finding of harshness under s 84(1) could not be made in circumstances where an employee had been lawfully dismissed for breach of such a term. It was also suggested that that approach was mandated because the employee's conduct in that context would be a repudiation of the contract.

27 The difficulty with this approach, as opposed to one which would have the nature of an employee's misconduct weighed against mitigating factors to determine, inter alia, whether a dismissal was harsh, is that it stands in the face of the statutory scheme which requires the Commission to consider whether the dismissal was harsh, unreasonable or unjust. There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 at [99] ( 'Loty' ), that the exercise of the Commission's powers in relation to unfair dismissals (now found in Part 6 of Ch 2 of the Act) requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" ( Loty at 99). In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". To similar effect, a Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [71] ( 'Little' ) stated:

The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate "justification" in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act.

28 This conclusion must also follow from the very meaning of the concept of "harshness" within s 84(1). The words "harsh, unreasonable or unjust" in s 84(1) are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at [467] ( 'Byrne' ), per McHugh and Gummow JJ, (applying Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at [28]). The appellant's acceptance that the expression 'harsh' would bear the meaning "disproportionate to the gravity of the misconduct" (see Byrne at [465]), necessarily brings with it the conclusion that a breach of an employment contract or even a repudiation of it will not be determinative of a finding under s 84(1) of the Act as to whether the dismissal was harsh. So, too, does an acceptance (see Byrne at 465) that the personal circumstances of a dismissed employee may be also brought into account.

29 We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows:

In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence.

30 We do not consider that the appellant established that Ritchie C departed from these principles or made a determination of "harshness", which was not properly available to him in the circumstances of this matter

165 As I have already observed in this matter, it has not been suggested in any way that Mr Silling's criminal convictions have breached "a fundamental and essential term of his contract of employment" and hence justified dismissal. All that is said is that there were criminal convictions, s.48 permitted CSNSW to impose the disciplinary penalty of dismissal from a range of available disciplinary penalties, which read together with the objects as set out in s.41, forms sufficient basis for the assertion that CSNSW "does not have trust and confidence in Mr Silling" based on his history of criminal offences etc. It is further asserted that there is a "fundamental incompatibility of that history with his role as a law enforcement officer". Mr Prince has essentially submitted that such incompatibility is so obvious as to be beyond question or necessity of testing. I cannot agree with that submission.

166 I note however that the language used in s.48 of the PSEM Act is only "may", not "must", or "shall", and that the range of disciplinary options available for consideration and imposition as defined in s.42 Definitions, range from dismissal, direction to resign (or be allowed to resign), reduction in salary, demotion to a lower graded position, down to the imposition of a fine or a caution or reprimand.

167 I also note that Deputy Commissioner McLean gave no reasons whatsoever for his decision, merely the fact of the criminal convictions and the spurious and now discredited, "employment matters".

168 Deputy Commissioner McLean also gave no reasons why, out of the range of disciplinary options available to him and as set out in the 'show cause' letter, he determined that dismissal was the appropriate penalty to be imposed on Mr Silling.

169 I accept that Mr Silling's criminal convictions concerned serious matters - domestic violence, rightly regarded with abhorrence and opprobrium by the community generally. However, as indicated above I accept that Mr Silling self-reported and co-operated fully with relevant authorities on each occasion, and is, (and has always been) genuinely remorseful, and has significantly, now accepted that he has a problem and sought appropriate help, which is having a positive and dramatic effect.

170 I also find the unchallenged evidence of Mrs Silling very relevant and compelling. It comes not just from a wife who might in other circumstances be regarded as simply loyally supporting her husband. In this case Mrs Silling herself was a Senior Correctional Officer for 14 years and also employed at the Goulburn Correctional Complex in a variety of roles for all of that period (having only recently taken voluntary redundancy). She had first hand opportunity to observe and experience the work stresses they both operated under in what must be a very challenging environment, and which, on their evidence contributed to/exacerbated issues/problems arising in their personal and home lives. She gave evidence as to those other private and personal matters that had impacted on her and her husband. The incidents involving Mrs Silling and her daughter cannot just be considered in black and white. Mr Hatcher is correct in saying that the context is also relevant. That in no way downplays, or excuses, or condones, the seriousness of the incidents. It merely recognises the reality of the each incident and is indicative of the fact that a simplistic, black and white approach to any consideration of the relevant issues before me should be avoided.

171 What is also relevant about Mrs Silling's evidence are the "profound" and "dramatic" affects the program/treatment/counselling he has followed has had on him and the assistance that has been to the improvement in his relationship with their daughter.

172 I also find it difficult to understand why CSNSW at no stage saw fit to interview or speak to Mrs Silling particularly when she was also a Senior Correctional officer at the same facility (and was actually present outside the room when he had his meeting with Deputy Commissioner McLean on the 12 April 2011.

173 Having carefully considered the evidence (including in particular the letters provided to him by work colleagues and superior officers for the 2008 and 2011 court cases) and the submissions of the parties, I have come to the inescapable conclusion that the dismissal of Mr Silling by CSNSW was harsh, and it was unjust, and it was unreasonable.

174 In summary, that conclusion has been arrived at on the basis that dismissal was too harsh a penalty for the out-of hours conduct, there has not been the necessary connection established between such conduct and mr Silling's emplyment, there has been no evidence put forward as to the reasons why dismissal was considered necessary and no evidence that the conduct in question has already, or will, adversely affect the integrity and reputation of both the Public Service and CSNSW nor why it is in the public interest to dismiss a man with a 15 year unblemished record at a senior level in CSNSW.

175 There are also procedural unfairness issues raised by the total absence of any reason being provided by CSNSW in the 10 June 2011 letter of dismissal (other than the mere fact of the 3 convictions and "employment matters") as to why it considered that it was necessary to dismiss him from his position after 15 years unblemished and exemplary service. Nor was any acknowledgement given to Mr Silling as to whether or not the written and oral submissions he had made had in fact even been considered by Deputy Commissioner McLean before the decision to dismiss was made.

176 In reaching the conclusion that the dismissal of Mr Silling was harsh and unjust and unreasonable, I have also taken the following matters into account (which are applicable to each of those three terms):

Mr Silling has a 15 year totally unblemished work history with CSNSW and during that time had received commendations and undertaken additional training at his own initiative to enhance his skills but which was also of benefit to CSNSW.

In relation to each incident of domestic violence he self-reported to the Police in a timely fashion and co-operated fully in the consequences that then flowed including pleading guilty to the charges laid.

In relation to each incident of domestic violence he self-reported immediately to his managers at the Goulburn Correctional Complex.

The convictions he received were all at the lower end of the scale available to the Local Court.

He co-operated fully and appropriately with the terms of the Bonds imposed by the Courts and the Probation and Parole requirements (as evidenced by the notes attached to the affidavit of Mr Cosgrove).

He received a warning after the first assault conviction in 1998 but there is no evidence that the fact of this conviction subsequently adversely affected his work performance or reflected on the integrity or reputation of either the Public Service or CSNSW in any way.

Whilst he was issued with a 'show cause' letter following the 2008 assault conviction, for some unknown "administrative oversight" (never fully explained) no disciplinary action of any kind was taken.

There is no evidence that the fact of this second conviction subsequently adversely affected his work performance or reflected on the integrity or reputation of either the Public Service or CSNSW in any way.

There has been no evidence advanced as to the reasons why it was considered necessary for CSNSW to dismiss Mr Silling.

There has been no evidence advanced as to the reasons why it was considered by CSNSW that dismissal was the appropriate penalty to be imposed given the range of alternative penalties available under the PSEM Act.

There has been no evidence advanced as to why the fact of his three criminal convictions means that Mr Silling would be unable to continue to carry out his duties as a Senior Correctional Officer in the same exemplary way that he had done for the previous 15 years.

There has been no evidence advanced as to any adverse affect Mr Silling's reinstatement would have in relation to his work colleagues, superiors or the inmates at the Goulburn Correctional Complex.

There has been no evidence from those with whom he worked or by whom he was supervised by that there was any impracticability in reinstating Mr Silling.

There was no evidence that the remedial actions Mr Silling has taken and continues to take to address his issues and make positive change for the future has been acknowledged or taken into account in any way by the decision maker.

Mr Silling has been dismissed from a secure Public Service position and from what was his long term career.

Mr Silling is genuinely remorseful for his actions and has taken remedial action which is on-going to address his issues and make positive change for the future.

Mrs Silling has taken redundancy from her position as a Senior Correctional Officer at the Goulburn Correctional Complex and therefore will no longer experience the work stresses she maintained had contributed to the first two incidents.

Mr Silling lives in a regional area and has been unable to obtain comparable alternative employment other than casual labouring.

Mr Silling's chances of securing comparable alternative employment within the region are remote.

Mr Silling's dismissal has resulted in some considerable financial losses in comparison to his former entitlements and will continue to do so given his difficulty in finding comparable employment.

177 Mr Silling seeks reinstatement to his position as a Senior Correctional Officer at the Goulburn Correctional Complex. Having found that his dismissal was harsh and unjust and unreasonable on the grounds set out above, and as reinstatement is the primary remedy available under the Act, I intend to reinstate Mr Silling.

178 On the issue of the practicability of restoring the employer/employee relationship, in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 the Full Court (WIlcox CJ, Marshall and North JJ) observed as follows at 217-218:

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there is the sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.

179 The Commission is required to give reasons as to the conclusion reached on the practicality of reinstatement (see Webb v Goulburn Masonic Village (2004) 136 IR 309 at [33] to [38]).

180 In Director of Public Employment by his Agent The Director-General of The Department of Juvenile Justice v Public Service Association and Professional Officers' Association Amalgamated Union of NSW (On Behalf of Elvin Brown) [2008] NSWIRComm 221 the Full Bench observed at [87]

In the context of this statutory scheme, in the exercise of its functions, including a decision to order reinstatement or re-employment, the Commission must also have regard to the public interest (See s 146(2)). That means that a consideration of the consequences of the particular conduct for the employer, as well as the employee, when ordering that an employment relationship be restored, cannot be overlooked, having in mind the particular employment in question.

181 It is difficult to have regard to the public interest in this matter as there has just been no evidence presented to the Commission, as is usually the case where reinstatement is sought, as to any consequences for the employer, other employees etc., or indeed just why reinstatement is impracticable.

182 Similarly when having regard to Perkins , again there is no actual evidence from anyone at CSNSW, particularly those at the Goulburn Correctional Comples who would be working with Mr Silling or supervising him or exercising authority over him as to any issue going to trust and confidence, or indeed any concern, as to his ability to perform his duties as a 'law enforcement officer'. There is no actual evidence from Deputy Commissioner Mclean either written or oral, mere assertions made on his behalf that there is a loss of trust or confidence such as to preclude Mr Silling's reinstatement.

183 I therefore find that it would not be impracticable to reinstate Mr Silling to his former position of Senior Correctional Officer with Corrective Services NSW, and at his former location of the Goulburn Correctional Complex.

184 There were no submissions made by either side as to the necessity, or otherwise, of imposing any penalty on Mr Silling for his conduct in accordance with the provisions of the PSEM Act. In those circumstances it would be inappropriate for the Commission to do so.

185 I therefore issue the orders as set out below.

Orders

186 The Industrial Relations Commission therefore orders that:

1. Pursuant to ss 89 (1), (3) and (4) of the Industrial Relations Act 1996, the respondent, Corrective Services NSW, shall reinstate the applicant, Michael Silling, to his former position of Senior Correctional Officer at the Goulburn Correctional Complex on terms no less favourable to those which would have applied had the applicant not been dismissed on 17 June 2011.

2. The respondent, Corrective Services NSW, shall pay to the applicant, Michael Silling, the amount he would have otherwise received had he not been dismissed, less any other earnings received during the period from dismissal to reinstatement.

3. Pursuant to s.89(4) of the Industrial Relations Act 1996, the applicant's period of service shall be treated as not to have been broken by his dismissal.

4. The reinstatement of the applicant, Michael Silling shall be effected no later than 21 days from today's date.

5. These orders take effect on and from today's date, 16 December 2011.

Elizabeth Bishop

Commissioner

Decision last updated: 19 December 2011