Barber v Commonwealth - [2011] FWA 4092

[2011] FWA 4092

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment

Matthew Barber
v
Commonwealth of Australia as represented by the Department of Parliamentary Services
(U2009/1607)

COMMISSIONER THATCHER

SYDNEY, 6 JULY 2011

Termination of employment - arbitration - criminal proceedings - legal error in administrative decision making - Wednesbury unreasonableness

[1] Mr Matthew Colin Barber, formerly Parliamentary Security Service Officer, Parliamentary Security Service (PSS), Department of Parliamentary Services (DPS), Parliament House, Canberra, has elected to proceed to arbitration to determine whether the termination of his employment was harsh, unjust or unreasonable.

[2] Mr Barber’s employment of approximately 5 years was terminated on 16 January 2009 pursuant to s.29 of the Parliamentary Service Act 1999 (C’th) (the PS Act) on the grounds that he had breached the Parliamentary Service Code of Conduct (the Code), established under s.13 of the PS Act.

[3] The breaches related to 5 incidents on 1 August 2008 involving physical and verbal altercations at Parliament House with other employees of DPS. The 5 incidents are listed as subparagraphs A to E of paragraph 8 in the Record of Code of Conduct investigation referred to in paragraph 8 below. (For the sake of brevity, I will refer to the alleged incidents as Incident A, Incident B, etc.)

[4] The termination followed an external Code of Conduct investigation (CCI) by Mr Stone of the Centre for Public Management Pty Ltd and the acceptance by the Secretary of DPS of the findings of the investigation in Mr Stone’s Report dated 23 December 2008.

[5] Section 15 (Breaches of the Code of Conduct) of the PS Act relevantly provides:

“(1) A Secretary may impose the following sanctions on a Parliamentary Service employee in the relevant Department who is found (under procedures established under subsection (3)) to have breached the Code of Conduct:

(a) termination of employment;

(b) reduction in classification;

(d) reduction in salary;

(e) deductions from salary, by way of fine;

(f) a reprimand.

(2) The determinations may prescribe limitations on the power of a Secretary to impose sanctions under subsection (1).

(3) A Secretary must establish procedures for determining whether a Parliamentary Service employee in the relevant Department has breached the Code of Conduct. The procedures:

(a) must comply with basic procedural requirements set out in Commissioner’s Directions; and

(b) must have due regard to procedural fairness; and

(4) The Commissioner must issue directions in writing for the purposes of subsection (3). ...”

[6] Thus a determination that a Parliamentary Service employee has breached the Code is a decision that may be made by any person properly authorised by the Secretary (s.15(3)), whereas a decision to impose a sanction for breach of the Code may only be made by a Secretary or a person delegated by the Secretary (s.15(1)). Powers of delegation are provided in s.70 of the PS Act.

[7] The practical effect in this case, was that Mr Stone, as an outsider, could be authorised to determine the breaches, but could not be delegated to impose a sanction and only made a recommendation on the sanction.

[8] The Record of Code of Conduct investigation¹ which documented the reason for Mr Barber’s termination of employment included the following:

“6. Mr Stone has determined that Mr Barber had breached the following provisions of the Code:

13(2) A Parliamentary Service employee must act with care and diligence in the course of Parliamentary Service employment.

13(3) A Parliamentary Service employee, when acting in the course of Parliamentary Service employment, must treat everyone with respect and courtesy, and without harassment.

13(11) A Parliamentary Service employee must at all times behave in a way that upholds the Parliamentary Service values and the integrity and good reputation of the Parliamentary Service.

7. The numbers relate to the Parliamentary Service Code of Conduct as set out in the Parliamentary Service Act 1999 (PS Act)

8. Mr Stone has determined that Mr Barber breached the Code for the following reasons:

A. Mr Barber’s conduct in the main front marshalling area gave rise to breaches of sections 13(2), (3) and (11) of the PS Act. This conduct involved Mr Barber: behaving in an aggressive manner towards Mr Williams in the presence of other Departmental employees and a member of the public; disrupting the security operations of the Department in the main front marshalling area; pushing Mr Williams backwards into an X-ray machine screen and column and using inappropriate and offensive language towards Mr Williams.

B. Mr Barber’s conduct in Mr Graeme Petteit’s office gave rise to a breach of section 13(3) of the PS Act. This conduct involved Mr Barber being loud, aggressive and abusive and using inappropriate and offensive language towards other Departmental employees.

C. Mr Barber’s conduct in the Security Administration/Management Area gave rise to a breach of section 13(3) of the PS Act. This conduct involved Mr Barber’s pushing, punching and kicking Mr Williams.

D. Mr Barber’s conduct at the ‘Internet Cafe’ gave rise to a breach of section 13(3) of the PS Act. This conduct involved Mr Barber: using inappropriate, offensive and racially derogatory language of a sexual nature towards Mr Phillips; and using inappropriate and offensive language towards Mr Colbert and Mr Wade.

E. Mr Barber’s conduct in the corridor outside the Employees’ Meal Room gave rise to a breach of section 13(3) of the PS Act. This conduct involved Mr Barber using inappropriate and offensive language towards Mr Silvano.

9. I have considered the evidence contained within the Report and agree with the above finding by Mr Stone.

...

13. I have decided to impose the sanction of termination of Mr Barber’s employment.

14. I have decided to impose this sanction for the following reasons:

a. Mr Barber’s conduct had a serious impact on the staff of the Department;

b. Mr Barber’s conduct seriously disrupted security services at Parliament House;

c. Mr Barber’s conduct is incompatible with the duties and responsibilities of his position as a Parliamentary Security Service officer;

d. Mr Barber’s conduct in pushing, punching and kicking another employee (on two separate occasions) raises serious concerns about the safety of Departmental employees at the workplace should Mr Barber return to the workplace; and

e. Taken as a whole, Mr Barber’s conduct has done serious damage to the employment relationship.”²

[9] Subsequent to the termination of his employment, Mr Barber was found guilty and convicted of two counts of common assault (of Mr Williams in respect of 2 of the incidents) and sentenced to be of good behaviour for 18 months. In accordance with ss.91-92 of the Evidence Act 1995 (C’th), whilst these convictions form part of the evidence that is relevant to these unfair dismissal proceedings, they do not necessarily prove the existence of all of the facts that were relevant in those criminal proceedings. That is, the convictions do not address facts such as the severity of the assaults or the circumstances leading up to the assaults. Nor do the provisions prevent contrary evidence being adduced about the facts sought to be proven by the convictions.³

[10] The respondent in these proceedings is the Commonwealth of Australia as represented by the Department of Parliamentary Services. In the interests of brevity I will refer to the respondent (Mr Barber’s employer) and the Department as DPS.

[11] In the course of preparing for the arbitration proceedings, Mr Barber made application to the Australian Industrial Relations Commission (the Commission) for various orders for the production of a significant number of documents from DPS and third parties and for the summons of witnesses. That application was the subject of my decision dated 16 November 2009.⁴ Mr Barber was provided with copies of all documents produced by DPS and Mr Stone, save for those that were the subject of legal privilege. In respect of one document (a petition),⁵ I ordered that the identity of the signatories be withheld.

SUBMISSIONS

[12] The bases of Mr Barber’s unfair dismissal application might be summarised broadly as:

(a) There was no valid reason for his termination because he had been provoked and his actions were to defend either himself or his information flyers and to free himself from what he perceived to be false imprisonment. His language had not been out of the ordinary for the workplace.

(b) The respondent either acted in error or unreasonably in suspending him from duty, establishing the Stone CCI and in proceeding with the CCI without waiting for the outcome of the criminal proceedings and a complaint Mr Barber had made to the Workplace Ombudsman.

(c) The CCI processes were affected by multiple errors of sufficient magnitude to vitiate the findings and the termination. Many decisions were affected by Wednesbury unreasonableness. Mr Barber was denied procedural fairness. The outcomes of the CCI had been predetermined.

(d) Through its various actions over an extended period of time leading up to the incidents on 1 August 2008, DPS had systematically harassed and victimised him because of his union and employee elected representative activities and his further industrial activism after ceasing those union and representative roles. This affected Mr Barber’s state of mind during the incidents, as at the time he genuinely believed that what he did was justified and appropriate. DPS bears a material responsibility for this situation and the subsequent incidents coming to pass.

(e) Similarly DPS’ failures to provide him with the protection to which he was lawfully entitled contributed to an environment where employees could provoke him in the belief they would suffer no consequences. DPS bears a material responsibility for this situation and the subsequent incidents coming to pass.

(f) The sanction imposed was disproportionate to the legitimate interests of his employer. Mr Barber’s industrial advocacy roles provided a motive for the harsh sanction of termination. His dismissal involved disparity of treatment with other employees, including those involved in the incidents whose conduct was not investigated.

[13] I have not attempted to summarise the grounds of Mr Barber’s disagreement with the Secretary’s reasons in paragraph 14 of the Record of Code of Conduct investigation because these proceedings are not an ‘appeal’ from the reasons given in support of the dismissal. These proceedings focus on whether the actual termination was harsh, unjust or unreasonable.

[14] DPS opposition to the application can be summarised as:

(a) It did not rely on any other reason for the termination of Mr Barber’s employment apart from his misconduct of 1 August 2008. Accordingly, Fair Work Australia (FWA) is not required to make findings on issues that do not relate to such conduct or the subsequent investigation thereof. DPS’ silence on extraneous issues should not be taken as acceptance of Mr Barber’s assertions.

(b) Neither Mr Barber nor his flyers were under sufficient threat to justify Mr Barber’s actions.

(c) Although other employees may have contributed to 2 of the incidents, Mr Barber’s responses were grossly disproportionate to the levels of provocation.

(d) Although the Stone CCI was exemplary, there was no obligation on DPS to conduct a ‘perfect’ investigation.

(e) FWA is not to determine whether the CCI complied with the requirements that apply for administrative decisions under principles of administrative law. The issue is whether Mr Barber was given a ‘fair go all round’ during the investigation.

(f) Investigations into breaches of the Code and the criminal law in relation to the same matters can proceed concurrently.

(g) The findings of the CCI and the sanction had not been predetermined.

(h) The sanction was appropriate. The conduct of the other employees involved entirely different levels of seriousness.

[15] Each of the parties referred me to various case law in support of their respective submissions. I have taken those cases into consideration to the extent I consider them relevant.

[16] These arbitration proceedings were longer than most unfair dismissal proceedings and involved sittings on 15 days over a period of approximately 7 months. The final submissions of Mr Barber (who was self-represented) totalled over 750 paragraphs; many with multiple subparagraphs. Excluding the case law provided by the parties, I finished up with over 30 lever arch folders of material to consider. I am confident that my delay in issuing this decision has not affected my capacity to properly and fairly determine the matter. My recollection of observations and my impressions of witnesses relevant to credibility issues⁶ have been assisted by the contemporaneous notes I made during the proceedings. CCTV footage was of assistance in relation to Incident A.

[17] This decision refers to a number of persons and, for ease of reference, I will list them in alphabetical order:

• Arthur, Ian, Investigator, Performance and Governance Pty Ltd
• Barber, Matthew Colin, the applicant
• Boyd, Ian, Assistant Director, Security Planning and Administration, DPS
• Boyer, Brian, Assistant Director, Workplace Relations (Acting Director HR Services, DPS when Ms Greening was on leave)
• Cochran, Steve, PSS 1/2 (Security Officer), DPS
• Colbert, Martin, PSS 1/2 (Security Officer), DPS
• Cook, Brent, PSS 1/2 (Security Officer), DPS
• Crane, Terry, Assistant Secretary, Strategy and Business Services who, at the time of the incidents, was Ms Greening’s immediate supervisor
• Gardiner, Ann, formerly PSS supervisor (retired September 2009)
• Graham, Bronwyn, Director Security Planning and Administration, DPS
• Greening, Karen, Director, HR Services, DPS
• Griffith, Karen, Assistant Secretary, Building Services Branch, DPS, whose responsibilities included managing the PSS (no longer works for DPS)
• Irvine, Susan, Manager, Nurses Centre, DPS
• Kamira, Jo, Investigator, Principal of Kamira Stacey Consulting Pty Ltd
• Kenny, David, Deputy Secretary, DPS
• Kyle, James Stuart, PSS (Security Officer), DPS
• Lamond, Jeff, Chief Investigator of Centre for Public Management Pty Ltd
• Lewis, David, Senior Supervisor, PSS, DPS
• Martin, Joanne, PSS 1/2 (Security Officer), DPS
• Mayne, Peter, formerly Supervisor, PSS, DPS (retired)
• McAppion, Philip, (Security Officer) DPS
• McDowall, Robert, formerly Training Officer, PSS, DPS (retired September 2009)
• Petteit, Graham, Director, Security Operations, DPS (who reported to Ms Griffith)
• Phillips, Eustace (Buff), PSS 1/2 (Security Officer), DPS
• Silvano, Tony, PSS 1/2 (Security Officer), DPS
• Stoll, W (Bill) J, Yarrimbah Consulting
• Stone, Mike, Investigator employed by Centre for Public Management Pty Ltd
• Thompson, Alan, Secretary, DPS
• Wade, Robert, Senior Supervisor, PSS, DPS
• Wallace, Michael, Acting Manager Security Operations, PSS, DPS
• Webster, William, PSS 1/2 (Security Officer), DPS
• Williams, Anthony Rhys, PSS 1/2 (Security Officer), DPS

BACKGROUND

[18] In support of his application, Mr Barber refers to a history of events going back to late 2006. As these form part of a purported factual matrix⁷ that he submits is relevant to whether the termination of his employment was harsh, unjust or unreasonable, it is appropriate to refer to this background.

[19] Mr Barber commenced employment on 19 January 2004. For the duration of his employment he was a full-time PSS officer on Parliamentary Service level 1/2. He acted as PSS supervisor level 3 for periods between October 2004 and May 2007.

[20] Mr Barber assumed the following industrial representative roles during his employment:

(a) Union delegate for the Australian Federal Police Association (AFPA) from May 2005 to February 2008.

(b) Employee representative on the PSS Workplace Consultative Committee (WCC) from April 2006 to February 2008. The WCC was a sub-committee of the DPS consultative forum established under the Department of Parliamentary Services (Parliamentary Security Service) Certified Agreement 2006-2008 (2006 Agreement).

[21] As an industrial representative Mr Barber participated in the following industrial negotiations:

(a) From September 2005 to April 2006 as a union delegate and employee representative negotiating what was to become the 2006 Agreement.

(b) From October 2007 to February 2008 as a union delegate negotiating what was to become the Department of Parliamentary Services Union Collective Agreement 2008-2011 (DPS UCA).

[22] In addition to the Stone CCI, Mr Barber was the subject of two CCIs into actions taken by him primarily towards other employees in relation to industrial relations matters, namely the Arthur CCI and the Kamira CCI.

[23] The Arthur CCI resulted from an allegation that Mr Barber engaged in misconduct in making comments about Mr Lewis. The external investigation commenced in March 2007 and on 6 November 2007 Mr Arthur completed his report, finding that Mr Barber’s conduct on two occasions was in breach of the Code. On 6 December 2007 the then Secretary of DPS prepared a Record of Code of Conduct investigation and imposed a fine of $200 in relation to conduct on 2 November 2006 and a reprimand in relation to conduct on 12 January 2007.

[24] At the time of his termination Mr Barber had a request for a review under s.33⁸ of the PS Act (s.33 review) of the findings of the Arthur CCI before the Parliamentary Service Merit Protection Commissioner.⁹ His termination caused the Commissioner to discontinue the review.¹⁰

[25] Shortly after the Arthur CCI was established, on 10 December 2007 Mr Barber sought a s.33 review of the performance management scheme (PMS) ratings given to him for several key performance indicators for the mid-year assessment for 2007/08. The independent review was undertaken by Mr Stoll. Mr Barber’s assertions included:

• ‘... given the known animosity of certain supervisors towards me because of my industrial roles I am in little doubt that these ratings have been given in response to my industrial roles and are not based on my work performance as a PSS officer.’¹¹

• ‘How I go about my business as an industrial representative is not something that the PMS covers.’¹²

• ‘... it is my prerogative as an industrial representative to set my own goals in relation to that work either of my own accord, or in conjunction with my constituents, fellow representatives or AFPA head office, regardless of the goals set by my supervisors or DPS for my duties as a PSS officer.’¹³

[26] The Stoll Report¹⁴ made 16 findings and 17 recommendations in relation to the DPS PMS, including 4 recommendations in relation to the assessment of Mr Barber. By the time Mr Barber responded to the recommendations on 25 June 2008,¹⁵ he was no longer either a union delegate or staff representative. The Executive Summary included:

“The Review has also found that the actions of Mr Barber in withdrawing from a feedback session negated the intent of a supervisor to provide further information and better particulars of the reasons for decisions by DPS supervisors as to the ratings awarded to Mr Barber. There is also an opportunity to now provide a copy of a document prepared by the supervisor that has the potential to assist Mr Barber’s understanding of the reasons why performance assessment decisions were taken. The Review has found that the decisions taken by supervisors were within the range of decisions open to them. It is recommended that Mr Barber be afforded the opportunity to place on file a document of his choosing to serve as a permanent record of his concerns regarding his 2006-2007 performance agreement. If Mr Barber so chooses, his document should be placed as a permanent cover to his 2006-2007 performance appraisal documentation.

The Review established that there was considerable common ground between Mr Barber and relevant supervisors regarding the sequence of events and background to the Review. There are also differences of opinion as to how certain events should be interpreted and a degree of suspicion held by Mr Barber as to the motivation of supervisors charged with administering his performance agreement, as set out in the documents generated by Mr Barber and in his interview with the Review. The Review findings are intended to bring added transparency to the process and balance to a number of matters of concern. The Review recommendations are offered for consideration by DPS as initiatives that would enhance the process and procedures in areas the Review considers could be improved to benefit the Department and PSS staff.”

[27] The Kamira CCI followed allegations that during January and February 2008 Mr Barber made intimidating and harassing comments to fellow employees, both verbally and in emails, in relation to the on-going UCA negotiations. Complaints were lodged by Messrs Williams, Wade, Colbert and Phillips. Also it was alleged that on 28 February 2008 Mr Barber issued a press release (Shame Mates Shame! - which included reference to the excessive working hours of some PSS staff) and gave a media interview to WIN News. His actions were in contravention of a PSS Daily Brief and despatches to all DPS personnel in 2005.

[28] Controversy surrounded Mr Barber ceasing to be an employee representative on the PSS WCC on 28 February 2008 because:

(a) The committee was dissolved as a consequence of a staff petition and an election was held for all WCC positions.

(b) There was no objection to that course of action by a meeting of the WCC (which was attended by Mr Barber) on 28 February 2008, following advice at the meeting from Ms Griffith (who was not the chair) that she had received a petition signed by 87 PSS employees.¹⁶

(c) Before being amended, the draft minutes of the WCC meeting on 28 February 2008 had stated that the petition by the 87 PSS members had expressed no confidence in Mr Barber to represent them.¹⁷ The amendment occurred following complaints by certain persons, including Mr Kyle, who had signed the petition that nowhere in the petition was it mentioned that it was a no confidence motion in Mr Barber. The petition had stated that:

“We the undersigned request the Assistant Secretary, Building Services Branch to dissolve all positions on the Workplace Consultative Committee and hold new elections by ballot within two months of this date.”¹⁸

(d) Unknown to members of the WCC, attached to the petition provided to Ms Griffith was a hand written statement by one of the signatories (who collected signatures) that:

“Several staff have expressed a reservation to signing the petition for fear of repercussions should M Barber become aware they had signed.”¹⁹

(e) Unknown to members of the WCC, Mr Wade had emailed Ms Griffith with advice that: “Some female staff members have refused to sign in fear of retribution from M. Barber.”²⁰

(f) On 29 February 2008 Ms Griffith emailed two employees who had complained about the wording of the minutes advising each that the words of no confidence were hers.²¹ In one email she continued:

“ ... as these words seemed to summarise the broader situation. When the petition was presented to me I was informed that in being asked to sign the petition, staff were told that it was aimed at removing Mr Barber from the WCC because of his recent actions. In addition, I have received a number of other complaints both verbally and in writing expressing concern about Mr Barber’s reluctance to represent the majority of PSS views recently.”²²

[29] Ms Griffith’s tabling of the petition, the reference in the draft minutes to Mr Barber and what he saw as the decision of management to dissolve the PSS WCC, became the subject of action by Mr Barber to lodge a request for a s.33 review dated 25 March 2008 and a complaint dated 28 April 2008 (refer to subparagraphs 34(a) and (e) below).

[30] Subsequently, notwithstanding his no longer having a formal industrial representative role, Mr Barber maintained an interest in industrial matters involving the PSS and undertook some form of advocacy role.

[31] However, before going to those matters, I will refer to an incident on 9 May 2007 that was raised by Mr Barber. The incident occurred after he had not attended for work on 8 and 9 May 2007. When Mr Barber could not be contacted, DPS arranged for officers from the AFP to attend his home. The police entered his home through an unlocked back door and established that he was present but unwell. Ms Griffith and Mr Petteit were in attendance but did not enter. DPS says it had a genuine concern for his welfare and had sought police assistance because, contrary to his practice he had not notified DPS he would not be working on those days and had not answered phone calls, responded to voicemail messages or answered the door. According to Mr Barber, Ms Griffith and Mr Petteit used ‘the AFP to break into my home despite not contacting next of kin or close friends to ascertain my whereabouts or condition and despite my phoning in sick only two days previously’ and that DPS acted ‘on spurious grounds in order to intimidate me.’²³

[32] Returning to events after 28 February 2008, on 17 March 2008 Mr Barber wrote an 11 page letter to at least one Senator and one Member regarding the following concerns:

“• Insufficient rest period between periods of duty;

• No reasonable working hours provisions in our industrial instrument;

• Health and Safety Representatives (HSR’s) that are more concerned about their income than the health and safety of employees;

• DPS using a private consulting firm selected on the basis of personal connections rather than merit for security advice with the aim to justify the current security policies and procedures and thereby discredit serious OHS concerns that I have raised with regards these policies procedures;

• A management culture in DPS which deliberately tries to exclude the participation of trade unions and their delegates in matters that concern their members;

• The use of the Code and performance management scheme to target trade union delegates;

• DPS management disregarding the certified agreement and DPS policies when dissolving a workplace consultative committee in order to remove a particular staff representative;

• DPS fraudulently using a petition with a misleading motion in order to obtain as many signatories as possible in order to justify its use as the reason to dissolve a workplace consultative committee;

• A culture of nepotism in DPS whereby the merit selection process is manipulated to place the people they want into positions as well as creating positions for select people; and

• DPS management trying to force out those employees whom they do not want in the workplace by harassing them through the use of the Code, performance management scheme and by changing the requirements of their positions.”²⁴

[33] The ballot count to elect 4 PSS WCC representatives was held on 11 April 2008. Messrs Colbert, Wade, Williams and another were elected.

[34] During March and April 2008 Mr Barber lodged with the Parliamentary Service Commissioner, who is not an employee of DPS and whose statutory functions are to give advice and provide reports to the Presiding Officers (i.e. the Speaker of the House of Representatives and the President of the Senate) pursuant to s.40 of the PS Act, the following formal complaints or requests for s.33 reviews:

(a) A request dated 25 March 2008 for a s.33 review of the decision of DPS to dissolve the PSS WCC on 28 February 2008 and call elections. Mr Barber asserted that the decision was taken specifically to remove him from his position as a staff representative and was a malicious attempt to injure his reputation and silence his role as an industrial advocate in the workplace. The outcomes sought included a reversal of the decision and for appropriate disciplinary action to be taken against the responsible officers.²⁵

(b) A formal complaint dated 4 April 2008 that Messrs Phillips, Colbert, Wade and Williams had deliberately made false and misleading statements about him in the course of their roles in the negotiations for the DPS UCA. Mr Barber sought that the Commissioner conduct an investigation into whether a breach of the PS Act had occurred and, if so, for appropriate sanctions to be applied.²⁶

(c) A formal complaint dated 7 April 2008 against Mr Colbert regarding an email he sent on 21 January 2008 to the other PSS staff elected representatives on a subcommittee on which union representatives (including Mr Barber) were also members. He stated that the last sentence suggested to the other staff representatives that they should take the steps Mr Colbert suggested on the quiet so that Mr Barber would not have more to ‘bleat about’. Mr Barber considered the statement to be harassing, disrespectful and discourteous and designed to injure his reputation. Mr Barber sought that the Commissioner conduct an investigation into whether a breach of the PS Act had occurred and, if so, for appropriate sanctions to be applied.²⁷

(d) A request dated 18 April 2008 for a s.33 review in relation to bias in the Kamira CCI.²⁸ Mr Barber sought that the Commissioner take over the management of the investigation, review the appointment of the consultant and review the allegations and evidence to ensure there was a prima facie case to support any allegations.²⁹

(e) A formal complaint dated 28 April 2008 against 8 identified PSS staff (and others who might be identified in the course of the investigation sought from the Commissioner) regarding ‘the fraudulent petition that they caused, or were party to causing, or used for the purpose of defaming me and removing me from the DPS PSS WCC (sic) in the days leading up to, including for several days after, 28 February 2008.’ Mr Barber sought that the Commissioner conduct an investigation into whether a breach of the PS Act had occurred and, if so, for appropriate sanctions to be applied.³⁰

(f) A formal complaint dated 28 April 2008 against Mr Petteit in relation to his approach to Mr Barber on 28 February 2008 after Mr Barber had issued the ‘Shame Mates Shame!’ media release. Mr Barber considered Mr Petteit’s actions to be discourteous, disrespectful and harassing and had the effect of denying him natural justice. Mr Barber sought that the Commissioner conduct an investigation into whether a breach of the PS Act had occurred and, if so, for appropriate sanctions to be applied.³¹

[35] On 20 May 2008 Mr Barber wrote to Mr Thompson because the Parliamentary Service Merit Protection Commissioner had advised him that either the matters were not reviewable under the PS Act and Parliamentary Service Determination 2003/2 or should be lodged with the Secretary of DPS in the first instance.³² In one of the responses, the Commissioner advised Mr Barber:

“It is important to note that if a Secretary receives an application for primary review they must review it unless they determine, under the provisions of the Determination, that it is not a reviewable matter.”33

[36] In addition to asking the Secretary to action those matters, Mr Barber submitted a formal complaint regarding the conduct of the PSS WCC election ballot count on 11 April 2008 during which Mr Colbert (as the AFPA representative) had witnessed the procedure even though he was a candidate.³⁴

[37] Mr Thompson’s reply dated 16 June 2008 to Mr Barber both acknowledged his letter of 20 May 2008 and referred to his failure to participate in the Kamira CCI by having declined to meet with Ms Kamira or put forward a response to the allegations. The letter includes:

“6. In order for the current investigation to be completed as soon as possible and to ensure that natural justice is provided to all parties involved, I ask that you fully co-operate with Ms Kamira in the conduct of her investigation. As Secretary to the department, I have a responsibility to ensure that DPS is a safe and harassment-free workplace. I note that the current investigation includes complaints from other DPS employees about your behaviour. The investigation of these and your complaints is being delayed by your failure to participate in the investigation. This situation is unfair to all parties involved in this process.”35

[38] On 17 July 2008 DPS released the final report for the Continuous Improvement Review (CIR) - Security,³⁶ (the Security CIR report) which invited observations or suggestions from relevant staff. Mr Barber formed the view that the recommendations therein indicated that DPS intended to cut the number of PSS officers and their training.

[39] During the course of negotiations for the DPS UCA, in 2008 after Mr Barber was no longer a member of the WCC:

(a) On several occasions, some or all of the 4 PSS employee representatives on the Union Collective Agreement Negotiating Group (UCANG), namely, Messrs Williams, Phillips, Wade and Colbert sent correspondence to all PSS officers. Mr Barber was of the view that the correspondence³⁷ stated or alluded that the PSS element had not lost any conditions.

(b) Following a stand-off in the UCANG (which included a dispute resolution conference in the Commission), things came to a head when on 22 July 2008 DPS sent a minute to its employees outlining a summary of changes that had been agreed to by the Single Bargaining Unit (SBU) and arrangements which it wished to introduced but on which no agreement had been reached with the SBU. The minute stated that Version 9 of the DPS UCA³⁸ which incorporated those agreed changes and aspects was to be published on the DPS portal. The minute sought advice on whether employees wished the department to take the necessary steps to proceed to a formal vote as quickly as possible.³⁹

(c) Mr Barber formed the view that the DPS proposed Agreement showed that the PSS element had lost certain conditions and had other conditions diminished. The proposal would make the cutting of the number of PSS officers and their training easier to do.

(d) Mr Barber, who was a member of the Community and Public Sector Union (CPSU) but was not acting in any formal representational capacity, produced an information flyer headed ‘Your Loss of Conditions in Draft 9A of Your UCA’⁴⁰ which outlined the conditions which he believed had been lost and diminished in the DPS version.

[40] The flyer did not disclose that Mr Barber was its author. As well as referring to the lost or diminished conditions (including changes to rosters, essential qualification and training targets for the night shift premium and the loss in value of certain allowances) the ‘anonymous’ flyer⁴¹ included the following adverse comments in relation to certain WCC representatives:

“WHY trust your WCC reps when three (3) of them ‘negotiated’ this loss. Why have they given themselves all the power over your rosters and left you with NO VOTE ON ANY CHANGES TO YOUR ROSTERS when DPS is conducting a roster review to cut positions. Look at the Security CIR report, recommendations 52 and 57!!! Why aren’t your reps protecting jobs? ...

ASK THESE QUESTIONS: Why didn’t Phillips, Colbert, Wade and Williams tell you they were going to give away these conditions? Why didn’t they tell you when they did? Why are they still telling you that you have not lost anything when you have? What other deals have they done with DPS that they haven’t told you?”

[41] The external CCI which was undertaken by Ms Kamira found that seven allegations were substantiated. The report dated 8 December 2008 included:

“11 Concluding comments.

11.1 Mr Barber has caused a great deal of distress and upheaval within the DPS. His lack of willingness to compromise or negotiate in a cordial, constructive manner has been extremely disruptive to the consultative processes and to the outcomes he was expected to achieve. He has also brought the DPS into public scrutiny and disrepute.

11.2 The distress Mr Barber inflicted on his colleagues within the workplace was severe, but none more so than the threats to Mr Colbert’s personal safety and the seriousness of his claim that Mr Williams and Ms Griffith were in a sexual relationship. That he claimed this in two forums was clearly designed to diminish the reputations of Ms Griffith and Mr Williams and therefore promote his own agenda, i.e. the ‘Building Our Futures’ document.

11.3 It is also important to stress that Mr Barber claimed he was acting in his capacity as an AFPA Delegate. The AFPA has a charter of rules of which Mr Barber’s behaviour was in contravention (Sections 65 and 67). It is unlikely the AFPA would endorse threats of assault, maltreatment and defamatory comments by one of its Delegates against members and non-members.

12 Recommendations

12.1 Mr Barber has displayed inappropriate behaviour to Ms Griffith, Mr Williams, Mr Colbert, Mr Phillips and Mr Wade. He has also offended a number of his colleagues with his actions and by going to the media regarding his perceived overtime issues, brought the DPS into disrepute.

12.2 It is unclear whether after these incidences Mr Barber would ever be able to regain the confidence and trust of his colleagues and supervisors.

12.3 Therefore, given that Mr Barber’s conduct is demonstrably in contravention of the Parliamentary Values, it is our opinion that it would be open to the DPS to consider terminating Mr Barber’s employment.”⁴²

[42] The reason why the Kamira recommendations dated 8 December 2008 were not acted on prior to the Department’s consideration of the report of the Stone CCI dated 23 December 2008 was not explained. For someone in the position of Director, HR Services and who had been the project officer for the Kamira CCI and who must have given the Kamira CCI report to the Secretary,⁴³ Ms Greening’s evidence that she had no knowledge of the reason, she had no conversation with the Secretary about the report and she had no knowledge if other executives had spoken to the Secretary about it,⁴⁴ is disappointing. I make the general observation that Ms Greening’s evidence is not particularly helpful to these proceedings as her evidence is that she had little involvement in the decision to terminate Mr Barber’s employment or the decision-making process. Those involved seemed to be Mr Thompson, Mr Kenny and Mr Boyer, none of whom gave evidence.

[43] It seems that prior to the termination of his employment, Mr Barber was not made aware of the contents of the Kamira CCI report, including its recommendations. Ms Greening’s evidence is that she did not know why he had not been given a copy.⁴⁵ On 5 February 2009 DPS advised Mr Barber that: ‘Given the receipt and acceptance of the Stone report, and the subsequent action regarding your employment, DPS now considers the Kamira investigation closed.’⁴⁶ Even though she wrote the letter, under cross-examination Ms Greening could shed no light on the reason for this decision, stating that the matter had been discussed by Mr Boyer with the Secretary after she had gone on leave on 23 December 2008.⁴⁷

[44] There is no evidence that any action was taken in respect of the 7 issues listed in Mr Barber’s letter dated 20 May 2008 (refer to paragraphs 34-36 above) up until the termination of his employment on 16 January 2009.⁴⁸ There is no evidence that the Secretary had determined, under the provisions of the relevant Determination, that any were not reviewable matters. Ms Greening was cross-examined extensively on the reason for this inaction over such a lengthy period.⁴⁹ However I was left little the wiser as according to Ms Greening:

• Mr Barber was making complaints about persons who had made complaints about him which were the subject of the Kamira CCI ‘so it was becoming very confusing.’⁵⁰

• DPS was keen to see one investigation finish (the Kamira CCI) and look at the outcome of that investigation in the context of any further action.⁵¹

• She was giving priority to getting the Kamira CCI completed.⁵²

• It was a decision of Mr Thompson which had been discussed at a meeting on 27 August 2008 which Mr Barber had attended with him, Ms Kamira, Mr Kenny and Ms Greening⁵³ as a way forward to getting the Kamira CCI completed.⁵⁴

• Her file notes of the meeting on 27 August 2008⁵⁵ did not record any agreement about the investigation of Mr Barber’s complaints until after the completion of the Kamira CCI.⁵⁶

• Those notes recorded that Ms Kamira had suggested that another investigator deal with Mr Barber’s complaints.⁵⁷ However Ms Greening’s recollection was that this was to be after the Kamira CCI was completed.⁵⁸

• Mr Thompson’s main aim was to get Mr Barber to continue to work with Ms Kamira to get that investigation completed.⁵⁹

• The Kamira CCI was dealing with complaints that preceded Mr Barber’s complaints.⁶⁰

• Mr Thompson was keen on getting one investigation completed before he started another one.⁶¹

• She had done as Mr Thompson requested of her.⁶²

EVIDENCE

[45] During the proceedings evidence was given by the following 19 persons:

Witnesses for Mr Barber

• Barber, Matthew Colin
• Gardiner, Ann
• Kyle, James Stuart
• McAppion, Philip (not cross-examined)

Witnesses for DPS

• Cochran, Steve
• Cook, Brent
• Greening, Karen
• Irvine, Susan Lewis
• Martin, Joanne
• Mayne, Peter
• McDowall, Robert
• Petteit, Graham
• Phillips, Eustace
• Silvano, Tony
• Stone, Mike
• Wade, Robert
• Wallace, Michael
• Webster, William
• Williams, Anthony Rhys

[46] I have noted that certain witnesses in these proceedings had made complaints against Mr Barber which lead to the Kamira CCI (Messrs Petteit, Phillips, Wade and Williams) or were witnesses in respect of the Arthur CCI.⁶³ Further, I have noted that in his letter to the Secretary dated 20 May 2008 Mr Barber had complained about certain witnesses (Messrs Petteit, Phillips, Wade and Williams).

[47] I have carefully reviewed all of the evidence and taken whatever evidence is relevant to s.652(3) and s.635 (refer to paragraphs 88 and 89 below) of the Workplace Relations Act 1996 (the Act) into consideration in arriving at my decision, giving such weight as is appropriate.⁶⁴

[48] There is a common thread running through the evidence of everyone who observed Mr Barber during the approximately half hour when all of the 5 incidents occurred. He was described as: very verbal, emotional, red faced, confrontational, in an upset, agitated state, loud, aggressive, abusive, like a storm entering, animated, verbal, just yelling and waving and screaming, becoming more and more angry, enraged, snapped, violently pushing - amongst other similar descriptions. This appears to be at odds with Mr Barber’s purported detailed recall of the actions of himself and others during the incidents, down to the minutia, without areas of doubt or inconsistency. One example is his evidence about the precise time he put his water bottle down during Incident A.⁶⁵ In my experience of considering the evidence of witnesses involved in physical confrontations or other highly emotional events, such a recall is far from the norm and, in the absence of contemporaneous notes, it is highly unlikely that Mr Barber would be able to recall accurately such detail, given he was displaying those emotions.

[49] Ms Greening’s notes of the meeting with Mr Barber shortly after the incidents records that Mr Barber stated that (in respect of Incident A) ‘RW had reached across him & ripped out of MB’s hands’. 66 Whilst Mr Barber cross-examined Ms Greening on this notation67 he did not dispute the accuracy of her contemporaneous note. Mr Barber’s evidence in these proceedings did not contain the assertion that Mr Williams ripped the flyers from his possession and the notation was not supported by the CCTV footage.

[50] It is highly probable that in giving his honest account of what he believes occurred on the day, Mr Barber has, possibly unconsciously, reconstructed the events in order to justify his actions. For this reason, I prefer the evidence of what occurred by witnesses who displayed less emotion on the day and who gave more probable evidence.

INCIDENTS ON 1 AUGUST

[51] I will discuss each of the incidents in the course of making my findings on whether there was a valid reason for the termination that related to Mr Barber’s conduct in the incidents.

[52] In respect of Incident A, in addition to the evidence of the witnesses (Ms Martin and Messrs Barber, Cochran, Cook, Webster and Williams) I have the benefit of clear CCTV footage⁶⁸ of what occurred, from two different angles. Despite Mr Barber’s submissions,⁶⁹ there is insufficient evidence to draw an inference that the footage is not reliable.⁷⁰ Indeed the footage of each angle appears continuous. Whilst there were some differences between the CCTV footage and the evidence of witnesses, that is not inconsistent with my experience of witnesses giving inaccurate evidence thinking it to be true. In these proceedings, where there is an inconsistency between the evidence of a witness and clear CCTV footage, I have preferred the evidence in the CCTV footage.

[53] Following his involvement in two of the incidents, at 2.30 pm Mr Williams presented at the Nurses Centre. The incident report that was completed by Ms Irvine includes the following:

“On examination client looks dishevelled and upset but remains calm in demeanour. There are three areas of obvious injury;

1. Left cheek - reddened and swollen over left cheekbone;

2. Left side of mouth - bruised and swollen with small split on outer lip. Inner left lip also bruised and swollen with obvious abrasive area; and

3. Left lower leg - multiple reddened superficial abrasive areas over mid left shin.

...

Ice pack applied to left side of face.”⁷¹

FOLLOWING THE INCIDENTS

[54] After the last of the incidents (Incident E), Mr Barber was requested to wait in Mr Wallace’s office. Whilst he was waiting, at a meeting between Mr Thompson, Mr Crane, Mr Kenny, and Ms Greening, Mr Thompson requested Mr Crane to advise Mr Barber that he was to be suspended. According to Ms Greening the decision was because there had been physical altercations in the main front marshalling area and outside Mr Petteit’s office.

[55] After that meeting Mr Crane, Ms Greening and Mr Petteit viewed the CCTV footage.⁷² Subsequently, the three met with Mr Barber to inform him that he was suspended pending an investigation and of Mr Boyd’s direction that he leave the Parliamentary precinct immediately.⁷³ The meeting was not to ask Mr Barber if he wanted to put anything to the Secretary before the decision was made to suspend him.⁷⁴ Mr Barber was escorted from the premises by an acting PSS supervisor and an AFP uniform protection inspector. Mr Williams met with Mr Thompson who did not want to discuss the incidents but wanted to know how he was. 75

[56] The Secretary’s letter of suspension dated 1 August 2008 to Mr Barber⁷⁶ stated:

“1. I have been advised that today you have allegedly physically assaulted an employee of the Department within the Parliamentary precincts;

2. On the basis of the information available to me, I believe you may have breached the Code of Conduct.

3 After considering all of the circumstances, including the public interest, the Department’s interest and the potential impact on you, I have decided to suspend you with pay under section 28 of the Parliamentary Service Act 1999 (Cth) and clause 5.1 of the Parliamentary Service Determination 2003/2.

4. I understand that Mr Terry Crane, Assistant Secretary, Strategy and Business Services, has raised this matter with you today. In view of all of the circumstances and, in particular, the serious nature of your alleged conduct, I am satisfied that it is appropriate that I exercise the power to suspend you with pay without first giving you the opportunity to be heard by me in respect of that decision.

5. The suspension will be with full pay including penalties for shifts already rostered. I have also revoked your pass privileges until further notice.

6. I will review my decision to suspend you at reasonable intervals and I will end the suspension if I no longer believe on reasonable grounds that your suspension is in the public interest or the Department’s interest.

7. I intend to initiate an investigation into this matter to determine if there has been a breach of the Code of Conduct. I will write separately to you about the conduct of that investigation.”

[57] Although not directly relevant to these proceedings I might record that at some time Mr Williams, in a private capacity, telephoned the AFP. When the AFP officers, in their capacity as ACT Policing, arrived at Parliament House, Mr Williams had a meeting with them before taking them to a meeting with Messrs Boyd and Petteit and himself. 77 On Sunday 3 August 2008 Mr Williams made a formal statement to the police, becoming the complainant in the criminal proceedings. The charges laid were prosecuted by the ACT Office of Public Prosecutions. Although not a complainant, DPS cooperated with the Police investigation by enabling investigating AFP officers to enter the precincts, and providing the AFP with DPS incident reports and a copy of the CCTV footage. DPS provided the AFP with Mr Barber’s contact details in accordance with the Information Privacy Principles.⁷⁸ DPS says it provided this assistance ‘as a responsible citizen’.79

[58] On 8 August 2008, DPS advised Mr Lamond of the Centre for Public Management Pty Ltd (CPM) that it had accepted CPM’s offer to undertake a CCI in respect of an allegation that Mr Barber assaulted Mr Williams on 1 August 2008.⁸⁰ The letter of engagement stated that the specified personnel who must undertake the work were Mr Lamond and Mr Stone. Annexure 1 of the contract for services included:

“5. Due to the sensitive nature of the potential breach, it is understood that Mr Mike Stone, CPM Reviews, will be responsible for conducting the investigation, but that his work will be overseen by Mr Jeff Lamond of CPM Reviews from a quality control perspective.”

[59] Also on 8 August 2008, DPS advised Mr Barber of the investigation into that allegation,⁸¹ that the Secretary had nominated Mr Stone to undertake the investigation and that Mr Stone was to be provided with copies of the following documents:

(a) DPS Personnel/HR paper No. 6 - Procedures for Determining Breaches of the Code of Conduct;⁸² (HR Paper No 6)

(b) the Australian Parliamentary Service Guidelines for Managing Breaches of the Parliamentary Service Code of Conduct (March 2006); 83 (the Guidelines)

(d) Parliamentary Service Determination 2003/2.

[60] On 18 August 2008, Mr Crane and Ms Greening briefed Messrs Lamond and Stone on the background of the CCI and DPS procedures. Thereafter Mr Crane had no further involvement in the CCI. Ms Greening, as the DPS project officer, 84 had ‘very, very little to do with Mr Lamond’85 and maintained regular contact with Mr Stone on process issues and regularly updated Mr Thompson.

[61] On 18 August 2008 Mr Barber wrote to the Secretary, DPS in respect of a number of matters, including his formal objection to the allegation of assault, and stated that:

“9. I also note that this allegation bears no correlation to the Parliamentary Service Values or Code of Conduct and as such does not allow me to prepare a defence given that you have not made me aware of the allegation/s that I have to answer.” 86

[62] The Secretary’s response dated 3 September 2008 included:

“Objection to allegation

Mr Stone is conducting an investigation into whether your alleged conduct constitutes a breach of the Code of Conduct. As part of the investigation, Mr Stone will inform you of the specific breach(es) of the Code of Conduct (if any) arising from your conduct and provide you with an opportunity to respond to those alleged breaches.”⁸⁷

[63] In a letter to Mr Barber dated 21 August 2008, DPS clarified that his suspension from the workplace also related to the parliamentary precincts. Further, the department wished to bring to Mr Barber’s attention that the direction not to attend the work premises (including the precincts of Parliament House) was a lawful and reasonable direction.⁸⁸ In a further letter to Mr Barber dated 23 February 2009, DPS stated:

“You also raised the issue of your being barred from the parliamentary precincts. This was a decision by the Secretary, who directed you to not attend the workplace - either internal or external to the building - during the period while you were suspended from duties. This direction was made pursuant to the Secretary’s powers under section 21 of the Parliamentary Service Act 1999 (C’th).”89

[64] On 22 August 2008 Mr Stone invited Mr Barber to meet with him to discuss the manner in which Mr Stone proposed to progress the investigation.⁹⁰

[65] Mr Barber met with Mr Stone on 4 September 2008. During the meeting Mr Stone read from a document that outlined the process that the CCI would follow and explained that it was only the Secretary who could suspend or terminate the CCI.⁹¹ Mr Barber gave Mr Stone his letter of that date which outlined matters that needed addressing in order ‘to ensure the integrity of any investigation that may ensure’, including his assertion that Mr Stone was not a competent or appropriate person to determine if he had assaulted Mr Williams.⁹² Mr Stone forwarded Mr Barber’s letter to Ms Greening. Mr Stone made notes of the meeting which he did not provide to Mr Barber.

[66] On 23 September 2008 Mr Barber lodged a complaint with the Workplace Authority about the conduct of DPS, AFPA and the PSS employee representatives during the PSS UCA negotiations and the approval process.⁹³

[67] On 13 October 2008 Mr Stone wrote to Mr Barber. His letter included the following:

“On 8 August 2008 the Secretary of the Department of Parliamentary Services informed you that I had been nominated to conduct an investigation into a possible breach of the Parliamentary Service Code of Conduct (the Code) by you on 1 August 2008.

The investigation is being conducted in accordance with the Parliamentary Services Act 1999; Parliamentary Service Determination 2003/2; and the Department of Parliamentary Services Personnel/HR paper No. 6 - Procedures for Determining Breaches of the Code of Conduct (the Procedures).

On 5 September I advised you that once I had an opportunity to review statements, interview the other parties and witnesses and consider other relevant material, I would provide you with any initial suggestion that there may have been a breach/es of the Code. I also advised you that you would be informed of the element(s) of the Code that may have been breached and details of the possible breach/es.

Having finalised this stage of the investigation I suspect that you may have breached the Code of Conduct. The suspected breaches occurring during five separate incidents on 1 August 2008:

1. In the main front marshalling area (a public area) - An incident involving you and Mr Rhys Williams.

2. In Mr Graeme Petteit’s office - following the first incident.

3. In the Security Administration/management Area - An incident involving you and Mr Rhys Williams - following the second incident.

4. At the ‘Internet Cafe’ - An incident involving you, Mr E (Buff) Phillips, Mr Martin Colbert and Mr Bob Wade - following the third incident.

5. In the corridor outside the Employees’ meal room - An incident involving you and Mr Tony Silvano - following the fourth incident.

Attachment A provides details of the suspected breaches.

In accordance with the Procedures you are entitled to make a statement. You may, at your discretion, make a statement in writing or orally or both. Should you wish to make an oral statement I can be contacted through the CPM Office by phoning (02) 6255 3988. A written statement should be forwarded to:

Centre for Public Management

PO Box 642

Jamison ACT 2614

Attention: Mike Stone (CPM Reviews)

I also invite you to identify individuals you would like me to interview and provide details of what information you believe the individuals may have that is relevant to this matter.

Under the Procedures you have 7 days (from the date you receive this letter) to provide a response to me; or such longer period as is allowed by me.

Following consideration of any statement you choose to provide, and any other relevant information, if I conclude that there has been a breach of the Code of Conduct I will provide you with written advice of the finding, and also of what sanction, if any, I propose to recommend to the Secretary and invite you to comment - (see the Procedures paragraphs 13-15 enclosed).”⁹⁴

[68] Mr Barber’s response dated 14 October 2008 sought all relevant evidence, including the CCTV footage. Also he sought an extension of the period for his response to 13 January 2009 for the following reasons:

“15. The provisional extension also takes into account the time that will be required for my solicitor to consider the evidence, once it is received, in order to advise me as well as for me to consider it and prepare a response.

16. I would further point out that you have provided me with seven (7) separate alleged breaches of the Code of Conduct from five (5) separate identifiable alleged incidents. Seven (7) days, or even several weeks, is insufficient time to respond to the matter you have alleged in these circumstances.” ⁹⁵

[69] Mr Stone’s response dated 5 November 2008 included:

“Production of Evidence

I am not in a position to release a copy of the CCTV footage to you, however, the Presiding Officers have agreed that you may view the CCTV footage of the Main Front Security area in my presence. Please contact me through the CPM office to arrange a time to view the footage at the CPM premises.

I have enclosed statements made by individuals (oral and written); summaries of discussions with employees and the nurse’s report referred to in your letter.

Information has been removed where it is:

• Not relevant and significant;

• Personal/private information that is protected under the Privacy Act 1988 and that you do not have right to have; or

• An amendment made as a result of an individual amending their statement.

...

I note that on 14 October 2008 you had received my correspondence that provided detailed information concerning the alleged incidents of 1 August 2008 and the suspected breaches, that may have occurred, of the Department of Parliamentary Services Code of Conduct. Noting that you have been in receipt of this information for 3 weeks, I believe an additional 2 weeks is a reasonable period for you to provide a response.”⁹⁶

[70] Mr Barber’s reply dated 7 November 2008, objected to not being provided with a copy of the CCTV footage (he asserted that the decision was ultra viresand denied him natural justice) and to Mr Stone’s removal of information which Mr Stone considered not to be relevant or insignificant. Further, Mr Barber stated:

“17. ... I will not be submitting to an interview or providing a written response until I have received legal advice about the advisability of doing so in these circumstances. This is a reasonable action in a matter such as this given the nature of the allegations, the issues involved, the likely consequences of an adverse finding and the possibility of prejudicing court proceedings.

18. I will contact you to arrange a mutually agreeable time and place for interview as soon as I have received that advice.”⁹⁷

[71] Mr Stone’s response dated 13 November 2008 provided Mr Barber and his legal representatives with an opportunity to view the CCTV footage other than in the presence of Mr Stone, clarified the limited information that Mr Stone had considered not to be relevant or significant in the material previously provided and stated:

“I note your advice that you will not be submitting to an interview or providing written response until you have received legal advice about the advisability of doing so. I remain of the view that the time I have allowed for you to prepare for and make a statement is reasonable given that you have had, since 14 October 2008, detailed information of the alleged incidents of 1 August 2008 and the suspected breaches.”98

[72] Mr Barber’s response dated 18 November 2008 addressed why he did not believe that justification existed to continue the CCI whilst the criminal matter was proceeding. His correspondence included:

“20. As my matter has not yet been decided by the courts, you have no basis for proceeding with those allegations which are also the subject of the current criminal proceedings until such time as the court has delivered its verdict.

21. I also submit that the legal questions arising from these allegations are sufficiently complex that the court is the most appropriate body to deal with them. Only once the court has answered these questions will it be appropriate for the misconduct process to proceed.

22. I further submit that as the other three (3) allegations all stem from or were as a consequence of the two (2) allegations now before the court that it would be proper to also stay those investigations pending the decision of the courts so that all the allegations may be investigated concurrently.

...

27. You have not provided any fact, or state of facts to justify continuing the investigation while the criminal matter is proceeding. By suspending me from the workplace, DPS has removed the need for the Code of Conduct investigation to proceed while the court deals with the criminal matter. ...

30. It would not therefore serve the interests of the Act or procedural fairness if I were placed in a situation where I was forced, expressly or implied, to respond to the Code of Conduct allegations prior to the court delivering its findings, or to decide if I should give priority to one particular matter over the other and as a consequence jeopardise my defence in the matter not given priority.

31. I can now confirm that I have received legal advice about my situation and that the advice is to not submit a response to the Code of Conduct allegations, except to inform you that at this time I intend to defend the allegations, until the criminal matter is disposed of.” 99

[73] Also in his letter dated 18 November 2008, Mr Barber advised Mr Stone that he was to obtain a copy of the CCTV footage in the criminal proceedings. He sought that, given an anticipated timetable of the criminal proceedings, ‘the period provided for me to respond be provisionally extended to 30 June 2009, or until such time as the court has disposed of the matter.’¹⁰⁰

[74] On 25 November 2008 Mr Barber lodged a complaint with the Workplace Ombudsman in respect of alleged breaches of freedom of association provisions.

[75] On 26 November 2008 Mr Barber’s legal representative wrote to Mr Stone seeking that Mr Barber’s response to the CCI await the outcome of the criminal proceedings on the basis that:

“It is contrary to the principles of procedural fairness to make my client engage in an investigation where any answers or responses he may give to the investigation may be used in the criminal proceedings. Of course, as you would be aware, my client has a right to silence in relation to the criminal proceedings.

On the other hand, if my client were to co-operate with the investigation and forgo his right to silence, then anything he says may be used against him in the criminal investigation.

As you can see my client is in somewhat of a ‘catch 22’ situation. Whilst my client would like to assist in whatever way he can with regard to the investigation, it is quite clear that it would be contrary to the principles of procedural fairness in forcing him to forgo his right to silence in relation to this matter.”¹⁰¹

[76] In his response dated 3 December 2008 Mr Stone stated:

“The Code of Conduct investigation I am conducting does not concern whether or not Mr Barber’s conduct constitutes criminal conduct. My investigation is solely focused on Mr Barber’s conduct in the workplace on 1 August 2008 and whether his conduct breached the Code of Conduct. As noted in my letter to Mr Barber dated 13 November 2008, it is not unusual for Code of Conduct investigations to be conducted in tandem with, but in isolation from, a court process.

Continuing with the investigation process is not contrary to the principles of procedural fairness. I have provided your client with an opportunity to respond to the alleged breaches of the Code of Conduct before I make a determination in relation to whether he has breached the Code of Conduct. If Mr Barber chooses not to provide a response, he is not (to) (sic) be taken to have admitted committing the alleged breach (see paragraph 12 of Personnel/HR Paper No. 6 - Procedures for determining breaches of the Code of Conduct).

I intend to continue with the Code of Conduct investigation. I will shortly make a determination in relation to whether or not a breach/es of the Code of Conduct has occurred. If I conclude that there has been a breach/es of the Code of Conduct, I will advise Mr Barber in writing of the finding, and also of what sanction, if any, I propose to recommend to the Secretary. Mr Barber will be provided with an opportunity to provide comments on my findings and recommended sanction (if any) before I finalise and submit a report to the Secretary.”¹⁰²

[77] As well as the above correspondence between Mr Barber and DPS and Mr Barber and Mr Stone, on 22 August 2008 Mr Barber wrote letters headed ‘Suppression of free speech and industrial democracy in Parliament House’ to the Presiding Officers, Senators and Members¹⁰³ in which he referred to the events of 1 August 2008 and a range of issues regarding negotiations for the DPS UCA. On 12 September 2008 the Secretary wrote to the Presiding Officers advising each of the Stone CCI and that the Department of Education, Employment and Workplace Relations had advised DPS that the draft UCA was consistent with the government’s bargaining framework and recommending they ignore the correspondence.¹⁰⁴

[78] On 1 September 2008 Mr Barber wrote letters to the Presiding Officers headed ‘Clarification re barring from the Parliamentary precincts’.¹⁰⁵ On 15 December 2008 Mr Barber wrote further letters to the Presiding Officers headed ‘Most Urgent and Confidential - Request to direct DPS to stay Code of Conduct investigation in line with PS Act and procedural fairness’.¹⁰⁶ Similar letters dated 15 December 2008 were sent to all Members and Senators.¹⁰⁷

[79] Neither DPS nor Mr Stone deferred the Stone CCI until the completion of the criminal proceedings. The Record of Code of Conduct investigation which documented the reason for Mr Barber’s termination of employment included the following:

“17. Mr Barber wrote to the Presiding Officers and others in mid-December 2008 requesting the Presiding Officers to issue a direction to me about procedural fairness. ...

18. The Department has considered Mr Barber’s request and has taken its own advice on this matter since his request and previously as the investigation by Mr Stone was being conducted.

19. The Department has obligations under the Australian Parliamentary Services Guidelines for Managing Breaches of the Parliamentary Service Code of Conduct, notably the requirement to determine, as quickly as a proper consideration of the matter allows, whether any breaches of the Code have occurred.

20. In relation to the criminal proceedings, the Department has sought advice from officers of the ACT Office of Public Prosecutions and the Australian Federal Police about any concerns that these organisations would have about the continuation and finalisation of the current Code of Conduct investigation before the conclusion of the criminal proceedings. Both organisations told the Department that they had no concerns about a timely conclusion to the Code of Conduct Investigation before the conclusion of the criminal proceedings.”

[80] In a letter to Mr Barber dated 10 December 2008 Mr Stone provided Mr Barber with his determinations regarding the allegations. He attached a draft of his report which contained the details of his findings (that Mr Barber had breached the Code) and the sanction he proposed to recommend to the Secretary of DPS (the sanction of termination). Mr Barber was invited to comment, by 19 December 2009, on the findings and the recommended sanction before the report was finalised and submitted.¹⁰⁸

[81] In his response dated 18 December 2008,¹⁰⁹ Mr Barber advised Mr Stone that he intended to wait for the criminal process and an investigation by the Workplace Ombudsman to be concluded before providing a response. He submitted that action by DPS to proceed could lead to a serious miscarriage of justice. He also expressed the view that the nature of the draft report indicated that Mr Stone ‘will not consider any points raised in any response (by Mr Barber) to the degree that they can influence you to change your findings and recommended sanction.’ He continued:

“22. Regardless of the fact that I am not responding to the allegations and evidence at this time, given the criminal process arising from the same alleged incident and my intention to exercise my right to silence until such time as the criminal process has finished, this element of your investigation demonstrates apparent bias sufficient enough to vitiate your findings.

...

24. Whilst it is not the intention of this correspondence to cover matters raised in your draft report, I believe this aspect supports my contention that I am being denied procedural fairness by you and DPS.”¹¹⁰

[82] On 22 December 2008 Ms Greening met with Mr Stone who took her through the report without discussing the substance of how he arrived at the findings and recommended sanction. 111 According to Ms Greening she had not received any indication regarding what his findings and recommendations were likely to be¹¹² although she had regular contact with Mr Stone during the CCI - ‘Generally telephone calls where he’d be telling me where he was up to with respect to the process.’¹¹³

[83] The next day Mr Stone signed the CCI report to Mr Thompson, which was received on 24 December 2008. On 23 December 2008 (the day she finished to go on leave) Ms Greening arranged with DPS’ legal representative for Mr Thompson to phone him on 7 January 2009 because the Secretary was seeking reassurance that he could continue the CCI process while the criminal matter was still on foot. 114

[84] In a letter dated 14 January 2009,¹¹⁵ Mr Kenny (as Acting Secretary) informed Mr Barber that his employment would be terminated with effect from the close of business on 16 January 2009. It attached the Secretary’s Record of Code of Conduct investigation and the Stone CCI final report. These were hand delivered by courier to Mr Barber on the morning of 16 January 2009.

[85] In relation to Mr Barber’s submission dated 18 December 2008 that action by DPS to proceed before the Workplace Ombudsman undertook an investigation could lead to a serious miscarriage of justice, the Record of Code of Conduct investigation included the following:

“21. In relation to the Workplace Ombudsman process, the Department is aware that an investigation may occur, but has been advised that the Workplace Ombudsman would be investigating any alleged breaches of the Workplace Relations Act 1996. In contrast, the DPS investigation is related to the obligations of the Department and Parliamentary Service staff under the PS Act. There is no reason for the Code of Conduct process to be deferred pending any Workplace Ombudsmen process.”

RELEVANT LEGISLATION

[86] Subsection 643(1) of the Act relevantly includes:

“(1) ... an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment:

(a) on the ground that the termination was harsh, unjust or unreasonable; …”

[87] In Byrne v Australian Airlines Limited the High Court explained these grounds as follows:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”116

[88] FWA is required to have regard to a number of matters specified in s.652(3) of the Act. That subsection provides:

“(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:

(a) whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the employee was notified of that reason; and

(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and

(d) if the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination; and

(e) the degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and

(f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and

(g) any other matters that the Commission considers relevant.”

[89] It is also relevant to consider s.635(2) of the Act which provides that the procedures and remedies concerning the conciliation and arbitration of claims, as well as the manner of deciding on and working out remedies:

“... are intended to ensure that, in the consideration of an application in respect of a termination of employment, a ‘fair go all round’ is accorded to both the employer and employee concerned.”117

[90] It is now well established that each of the paragraphs in s.652(3) must be considered in determining an application in so far as it has application or is relevant to the circumstances of the case and that a valid reason for the termination is only one of the specified matters.

[91] In King v Freshmore (Vic) Pty Ltd ¹¹⁸ the Commission indicated its task was not to review the employer’s decision as to what conduct occurred but to determine itself, on the evidence, whether the conduct occurred. The Full Bench stated:

“[23] When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[92] Although King v Freshmore (Vic) Pty Ltd was in relation to s.170CG of the Industrial Relations Act 1998 the principle continued under the different unfair dismissal structure in the Act - see the decision of the Full Bench in Xiu Zhen Huang v Rheem Australia Pty Ltd.¹¹⁹

[93] An allegation of misconduct involving what might be regarded an assault by an employee is a serious matter that attracts the operation of the principle in Briginshaw v Briginshaw.¹²⁰ The standard of proof remains the balance of probabilities but ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’¹²¹ and such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’¹²² or ‘by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.’¹²³

[94] In Re: R Budd¹²⁴ a Full Bench, in considering an unfair dismissal application indicated that the Briginshaw principle applies to the finding of fact and not to the discretion as to whether a dismissal is harsh, unjust or unreasonable. The Full Bench stated:

“[15] In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd the High Court pointed out that care needs to be taken in applying what was said in Briginshaw. Furthermore,it would be wrong, for example, to apply a standard of proof higher than the balance of probabilities. ...

[16] In relation to fact finding, the Commissioner analyzed the evidence with care. In making findings he indicated how the findings were reached, in particular why he rejected some evidence and accepted other evidence. There was no error in the fact-finding process. To the extent that this ground involves a contention that the Commissioner did not exercise the statutory discretion properly it should also be rejected. Briginshaw was a case concerned with the nature of findings about conduct. It is potentially misleading and unnecessarily complicated to attempt to apply Briginshaw to the exercise of judgement required once the findings about conduct have been made. Section 652(3) specifies the way in which the discretion is to be exercised and the matters to be taken into account. ...” (Footnotes omitted)

JURISDICTIONAL ERROR, INVALIDITY AND BREACHES OF LAW

[95] Before proceeding to have regard to the matters specified in s.652(3) it is appropriate that I consider FWA’s role in arbitrating unfair dismissal applications in relation to Mr Barber’s submissions that:

(a) the Stone CCI was affected by multiple jurisdictional errors of sufficient magnitude to vitiate the findings and therefore the termination; and

(b) a number of decisions regarding the initiation and management of the Stone CCI and the subsequent decision to terminate his employment were ‘Wednesbury unreasonable’.

[96] Instances of jurisdictional error that Mr Barber submits vitiated his termination are:

(a) The Secretary’s failure in establishing the CCI to identify the suspected breaches of the Code.

(b) The Secretary’s failure to delegate Mr Stone the authority to determine the suspected breaches of the Code he would investigate.

(c) The involvement of Mr Lamond in the investigation created a reasonable apprehension of bias in the conduct of the CCI. The apprehension was based on Mr Lamond having motive to provide DPS with a favourable CCI outcome in exchange for certain senior employees of DPS providing evidence favourable to him in unrelated court proceedings.

(d) The Secretary’s failure to notify Mr Barber of the suspected breaches of the Code and the involvement of Mr Lamond in the CCI.

(e) The failure not to defer the CCI until after the outcome of the criminal proceedings.

(f) DPS failure to provide Mr Stone with evidence favourable to Mr Barber.

(g) Mr Stone’s failure to take account of evidence favourable to Mr Barber.

(h) DPS predetermination of Mr Barber’s guilt.

[97] It needs to be borne in mind that ‘Wednesbury unreasonableness’ is not a common law principle that applies across all areas of law, similar to procedural fairness. Rather it is a ground for judicial review of an administrative decision. Therefore I will interpret Mr Barber’s submissions that certain decisions were ‘Wednesbury unreasonable’ to mean that, if the decisions were the subject of an application for a judicial review, the application would succeed on the ground of Wednesbury unreasonableness.

[98] Mr Barber’s submissions go to the legality of his termination, rather than whether the decision to terminate his employment was harsh, unjust or unreasonable, which is more about the merits of the dismissal. That is, they relate to errors of law, rather than to errors of fact. (Whilst Wednesbury unreasonableness requires a consideration of the merit of a decision, its effect is to have the decision quashed or set aside. I will discuss this ground further when giving consideration to paragraph 652(3)(c).)

⁷⁸ Exhibit B14.

79 Transcript of proceedings on 15 September 2010, PN7974.

⁸⁰ Exhibit K10, Attachment C.

⁸¹ Exhibit K10, Attachment D.

⁸² Exhibit K39, Attachment A.

83 Annexure X.

84 Ms Greening described this role as: ‘Basically to facilitate Mr Stone's process with respect to the provision of information that he requires, details of witnesses for instance, witness statements, authorise venues and meeting times; if he needs to speak to anybody.’(Transcript of proceedings on 30 March 2010, PN4643)

85 Transcript of proceedings on 30 March 2010, PN5124.

⁸⁶ Exhibit B16, page 462B

⁸⁷ Exhibit B16, page 462C.

⁸⁸ Exhibit B14.

⁸⁹ Exhibit B32, page 1866.

⁹⁰ Exhibit B16, page 463.

⁹¹ Exhibit K39, Attachment B8.

⁹² Exhibit B16, pages 469-472. The issues were listed under the headings of: Your particulars; Objection to the allegation; Failure of DPS to comply with statutory requirements; Production of evidence; DPS employee relationships; and Legal proceedings reserved.

⁹³ Exhibit B39, pages 2445-2450.

⁹⁴ Exhibit B16, pages 473-474.

⁹⁵ Exhibit B16, pages 533-536.

⁹⁶ Exhibit B16, pages 538-539.

⁹⁷ Exhibit B16, pages 540-542.

⁹⁸ Exhibit B16, pages 543-544.

99 Exhibit B16, pages 547-551.

¹⁰⁰ Ibid.

¹⁰¹ Exhibit B16, page 552.

¹⁰² Exhibit B16, pages 555-556.

¹⁰³ Exhibit B42, pages 2579-2584.

¹⁰⁴ Exhibit B67.

¹⁰⁵ Exhibit B32, page 1859.

¹⁰⁶ Exhibit B32, pages 1860-1865.

¹⁰⁷ Exhibit B42, pages 2605-2606.

¹⁰⁸ Exhibit B17.

¹⁰⁹ Exhibit B16, pages 559-562.

¹¹⁰ Exhibit B16, pages 559-562.

111 Transcript of proceedings on 30 March 2010, PN5118.

¹¹² Exhibit K10 & PN5107.

¹¹³ Transcript of proceedings on 30 March 2010, PN5125.

114 Exhibit B111 and transcript of proceedings on 19 April 2010, PN6024.

¹¹⁵ Exhibit K10, Attachment F.

¹¹⁶ McHugh and Gummow JJ, (1995) 185 CLR 410 at 465.

¹¹⁷ The Note to s.635(2) states that the expression ‘fair go all round’ was used by Sheldon J in Re:Loty and Holloway v Australian Workers Union [1971] AR (NSW) 95.

¹¹⁸ Print S4213, 17 March 2000, per Ross VP, Williams SDP, Hingley C.

¹¹⁹ PR954993, 9 February 2005, per Lawler VP, Leary, DP, Deegan C, paras 17 &18.

¹²⁰ (1938) 60 CLR 336.

¹²¹ Ibid, per Dixon J at p 363.

¹²² Ibid, per Dixon J at p 362.

¹²³ Ibid, per Rich J at p 350.

¹²⁴ [2007] AIRCFB 797, 5 October 2007, per Giudice P, Lacy SDP, Cargill C.

125 Written submissions dated 24 May 2010, para 318. In his oral submissions Mr Barber accepted that FWA could not make a judicial act or finding. (Transcript of proceedings on 18 August 2010, PN6055)

¹²⁶ Written submissions dated 24 May 2010, para 351. To the contrary, it is well established that each of the paragraphs in s.652(3) must be considered in determining an application for relief in respect of termination of employment - Re: P. Annetta, Print S6824, 7 June 2000, per Giudice P, Williams SDP, Cribb C.

¹²⁷ Written submissions dated 24 May 2010, para 340.

128 Visscher v The Honourable President Justice Giudice [2009] HCA 34 (2 September 2009) per Gummow J, para 5.

¹²⁹ In summary, if the decision maker acts otherwise in accordance with his or her legal functions or powers it will be a jurisdictional error, such as where the decision maker purports to act wholly or partly outside the theoretical limits of his or her functions and powers. Less obviously, jurisdictional error will occur if the decision maker acts without some essential precondition to the exercise of the power being satisfied or misconstrues the legislative provision and thereby misconceives the nature of the function he or she is performing or the extent of the powers in the circumstance of the particular matter. However where a decision maker exercises a function or power that grants the decision maker some discretion and the decision maker makes an error in that discretionary element, this will be an error of law, but it will be classified as a non-jurisdictional error.

¹³⁰ Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (24 October 1995), per Brennan, Deane, Toohey, Gaudron, McHugh JJ; Jadwan Pty Ltd v Secretary, Department of Health & Aged Care [2003] FCAFC 288 (12 December 2003), per Gray, Kenny, Downes JJ, at para 68.

¹³¹ (1998) 194 CLR 355, per McHugh, Gummow, Kirby and Hayne JJ.

¹³² Ibid, para 93.

¹³³ (2002) 209 CLR 597, para 51.

¹³⁴ Ibid, para 101.

¹³⁵ Legal Briefing Number 67, 15 August 2003, ‘Don’t Think Twice - Can Administrative Decision Makers Change Their Mind?’.

¹³⁶ Crozier, in the matter of an application for Writs of Certiorari and Mandamus against the Australian Industrial Relations Commission [2001] FCA 1031 (1 August 2001), per Gray, Branson, Kenny JJ, para 15. .

¹³⁷ Clause 7.44 of the Explanatory Memorandum to the Workplace Relations and Other Legislation Amendment Bill 1996 stated:

“Affording employees procedural fairness in relation to a termination will be relevant in establishing whether or not a termination is harsh, unjust or unreasonable. However, as procedural fairness is to be only one factor to be considered along with other relevant factors, the intention is that undue weight will not be given to procedural defects in a termination.”

¹³⁸ Refer to s.643(1) of the Act.

¹³⁹ Transcript of proceedings on 15 February 2011, PN335.

¹⁴⁰ Re Cram Ex parte Newcastle Wallsend Coal Co Pty Ltd, (1987) 163 CLR, per Mason CJ, Brennan, Deane, Dawson and Toohey JJ, at 140 & 149; Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia, (1987) 163 CLR 656, per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ, at 666; Precision Data Holdings Ltd v Wills, (1991) 173 CLR 167, per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ, at 189; Re Dingjan; Ex parte Wagner (1995) 183 CLR 323, per Gaudron J, at 360-361.

¹⁴¹ [2003] 127 IR 432 at 439, per Gray J.

142 (1981) AC 75 95.

¹⁴³ Op cit.

¹⁴⁴ Crozier, in the matter of an application for Writs of Certiorari and Mandamus against the Australian Industrial Relations Commission [2001] FCA 1031 (1 August 2001), per Gray, Branson & Kenny JJ.

¹⁴⁵ At para 15.

146 Transcript of proceedings on 14 September 2010, PN6562 & PN7192.

¹⁴⁷ Pamela T Wilson v Australian Taxation Office, PR910942, 9 November 2001, per McIntyre VP, Harrison SDP, Lawson C, para 53.

¹⁴⁸ (1995) 62 IR 371, at p 373.

¹⁴⁹ Written submissions dated 24 May 2010, para 216.

¹⁵⁰ Transcript of proceedings on 16 February 2010, PN1119.

¹⁵¹Transcript of proceedings on 16 February 2010, PN1158 & PN1166.

¹⁵² Transcript of proceedings on 16 February 2010, PN1127.

¹⁵³ Transcript of proceedings on 16 February 2010, PN1161.

¹⁵⁴Transcript of proceedings on 10 May 2010, PN12067.

¹⁵⁵ Transcript of proceedings on 10 May 2010, PN12077.

¹⁵⁶ Transcript of proceedings on 19 April 2010, PN7228-PN7231.

¹⁵⁷ Transcript of proceedings on 20 April 2010, PN8828-PN8833.

¹⁵⁸ Transcript of proceedings on 20 April 2010, PN9056-PN9057.

¹⁵⁹ Transcript of proceedings on 21 April 2010, PN9386-PN9387.

¹⁶⁰ Transcript of proceedings on 21 April 2010, PN9861-PN9862 & PN9880-PN9882.

¹⁶¹ Transcript of proceedings on 21 April 2010, PN9886.

¹⁶²Transcript of proceedings on 21 April 2010, PN10916.

¹⁶³ Transcript of proceedings on 21 April 2010, PN10969-PN10972.

¹⁶⁴ Transcript of proceedings on 21 April 2010, PN10932-PN10941.

¹⁶⁵ Print S6238, 22 May 2000, per Ross VP, Polites SDP and Smith C - particularly as summarised at par 25.

166 Transcript of proceedings on 24 February 2010, PN3972.

167 Transcript of proceedings on 20 April 2010, PN8010.

168 Transcript of proceedings on 21 April 2010, PN9644.

169 Exhibit K16.

¹⁷⁰ Exhibit K16.

¹⁷¹ Exhibit K4.

¹⁷² Exhibit K16.

¹⁷³ Exhibit K31.

¹⁷⁴ Exhibit K4.

¹⁷⁵ Exhibit K16; transcript of proceedings on 20 April 2010, PN7784.

¹⁷⁶ Transcript of proceedings on 20 April 2010, PN7791.

¹⁷⁷ Transcript of proceedings on 20 April 2010, PN7772-PN7773.

¹⁷⁸ Exhibit K2.

¹⁷⁹ Exhibit K31. Even if Mr Webster had viewed more than the commencement of the CCTV footage before he typed his statement, that would not influence this evidence. (Transcript of proceedings on 21 April 2010, PN10213)

¹⁸⁰ Transcript of proceedings on 17 February, PN2248-PN2249.

¹⁸¹ Transcript of proceedings on 17 February, PN2213.

¹⁸² Exhibit K21, page 3.

¹⁸³ Exhibit B6, para 374.

¹⁸⁴ Transcript of proceedings on 17 February 2010, PN1975.

¹⁸⁵ Transcript of proceedings on 17 February 2010, PN1968.

¹⁸⁶ Transcript of proceedings on 17 February 2010, PN1983.

¹⁸⁷ I do not accept as appropriate or relevant Mr Barber’s submission that: ‘It is unreasonable to expect the applicant to have known what was in the mind of Mr Williams or the other PSS employee representatives and therefore the exact degree of unhappiness that the information flyers may have caused any of them.’ (Paragraph 75(f) of his written submissions dated 24 May 2010.) Under cross-examination Mr Barber conceded that he knew ‘undoubtedly, to a degree’ that by having put out the terms of the flyer which named Messrs Phillips, Colbert, Wade and Williams, he would have upset those gentlemen. (Transcript of proceedings on 24 February 2010, PN3715)

188 By accessing rosters, it is possible for an employee to inquire about which security points employees are required to be stationed (Transcript of proceedings on 21 April 2010, PN9548-PN9620), although I accept that it is left to the employees at each point to work out which positions they will man. (Transcript of proceedings on 18 August 2010, PN5439-PN5440)

189 Transcript of proceedings on 18 August 2010, PN5385.

¹⁹⁰ Exhibit K2.

¹⁹¹ Exhibit B6, para 377.

¹⁹² Transcript of proceedings on 17 February 2010, PN2046.

¹⁹³ Exhibit K14.

¹⁹⁴ Transcript of proceedings on 20 April 2010, PN8296.

¹⁹⁵ Exhibit K13, page 1.

¹⁹⁶ Exhibit K14, page 2.

¹⁹⁷ Transcript of proceedings on 19 April 2010, PN6703.

¹⁹⁸ Exhibit K14, page 2.

¹⁹⁹ Transcript of proceedings on 19 April 2010, PN7253. Mr Petteit retired from the Navy with the rank of Chief Petty Officer.

²⁰⁰Transcript of proceedings on 19 April 2010, PN6700-PN6708.

²⁰¹ Transcript of proceedings on 20 April 2010, PN8212.

²⁰² Except for disagreement over when certain events happened. Mr Barber’s written submissions dated 24 May 2010, para 103.

203 Transcript of proceedings on 18 August 2010, PN5511.

204 Transcript of proceedings on 24 February 2010, PN3863.

205 Transcript of proceedings on 24 February 2010, PN3865.

206 Transcript of proceedings on 18 August 2010, PN5549.

²⁰⁷ Transcript of proceedings on 19 April 2010, PN6850 & PN6852.

²⁰⁸Transcript of proceedings on 19 April 2010, PN6776, PN6782, PN6788 & PN6801.

²⁰⁹Transcript of proceedings on 19 April 2010, PN6789 & PN6792.

²¹⁰Transcript of proceedings on 19 April 2010, PN6798.

²¹¹ Transcript of proceedings on 19 April 2010, PN6565, PN6573, PN6814-PN6820 & PN6827.

²¹² Transcript of proceedings on 19 April 2010, PN6828-PN6845.

213 Transcript of proceedings on 19 April 2010, PN6818-PN6820 & PN6827.

²¹⁴Transcript of proceedings on 19 April 2010, PN6569-PN6572, PN6858-PN6862.

²¹⁵ Exhibit K19, page 1; transcript of proceedings on 20 April 2010, PN8363 & PN8381.

²¹⁶ Transcript of proceedings on 20 April 2010, PN8364-PN8387.

217 Transcript of proceedings on 20 April 2010, PN7906-PN7909.

²¹⁸ Exhibit K19, page 1; transcript of proceedings on 20 April 2010, PN7915, PN8373 & PN8402-PN8409.

²¹⁹ Transcript of proceedings on 20 April 2010, PN7914.

²²⁰ Exhibit K19, page 1.

²²¹ Transcript of proceedings on 20 April 2010, PN7931.

²²² Transcript of proceedings on 20 April 2010, PN8434 & PN7927-PN7928.

²²³ Transcript of proceedings on 21 April 2010, PN10751.

²²⁴ Transcript of proceedings on 21 April 2010, PN10786.

²²⁵ Transcript of proceedings on 21 April 2010, PN10779-PN10781.

²²⁶Transcript of proceedings on 21 April 2010, PN10760.

²²⁷ Transcript of proceedings on 21 April 2010, PN10722.

²²⁸ Transcript of proceedings on 21 April 2010, PN10743.

²²⁹ Transcript of proceedings on 21 April 2010, PN10880-PN10881.

²³⁰ Transcript of proceedings on 21 April 2010, PN10917.

²³¹ Transcript of proceedings on 19 April 2010, PN6721.

²³² Transcript of proceedings on 19 April 2010, PN6780.

²³³ Exhibit B6, para 409.

²³⁴ Evidence of Mr Barber at transcript of proceedings on 24 February 2010, PN3865.

235 Transcript of proceedings on 18 August 2010, PN5551.

²³⁶ Exhibit B23. (Mr Williams disputes where Exhibit B23 depicts himself and Mr Barber to be in the corridor.)

237 Transcript of proceedings on 18 August 2010, PN5525.

²³⁸ Exhibits B53 & B55.

²³⁹ Transcript of proceedings on 21 April 2010, PN10809.

²⁴⁰ Transcript of proceedings on 19 April 2010, PN6906.

²⁴¹ Transcript of proceedings on 19 April 2010, PN7029.

²⁴² Exhibit K29; transcript of proceedings on 21 April 2010, PN10000.

²⁴³ Exhibit K30; transcript of proceedings on 21 April 2010, PN10003 & PN10006.

²⁴⁴ Transcript of proceedings on 21 April 2010, PN10001.

²⁴⁵ Transcript of proceedings on 21 April 2010, PN9970-PN9976.

²⁴⁶ Exhibit B6, para 454.

²⁴⁷ Exhibit K24.

²⁴⁸Transcript of proceedings on 21 April 2010, PN10369 & PN10379.

²⁴⁹ Transcript of proceedings on 21 April 2010, PN10341.

²⁵⁰ Exhibit K34, page 1.

²⁵¹ Ibid.

²⁵² Transcript of proceedings on 21 April 2010, PN10953.

²⁵³ Transcript of proceedings on l0 May 2010, PN11992; Exhibit K40.

²⁵⁴ Exhibit K41.

²⁵⁵ Transcript of proceedings on 10 May 2010, PN12073.

²⁵⁶ Transcript of proceedings on 10 May 2010, PN12074-PN12075.

²⁵⁷ Transcript of proceedings on 10 May 2010, PN12067 & PN12076-PN12077.

²⁵⁸ Exhibit B6, paras 440-462.

²⁵⁹ Exhibit B6, para 452.

260 Transcript of proceedings on 18 August 2010, PN5612.

²⁶¹ Transcript of proceedings on 20 April 2010, PN9026-PN9028.

²⁶² Exhibit K34, page 1; transcript of proceedings on 21 April 2010, PN10392 & PN104020.

²⁶³ Transcript of proceedings on 21 April 2010, PN10458. Mr Barber contends that Mr Silvano, was going to be his witness in the Arthur CCI but withdrew for reasons that Mr Barber asserts related to Mr Silvano being placed on the supervisors higher duties list.

²⁶⁴ Transcript of proceedings on 21 April 2010, PN10466.

²⁶⁵ Transcript of proceedings on 20 April 2010, PN8978-PN8984.

²⁶⁶ Exhibit K22.

²⁶⁷ Exhibit B94.

²⁶⁸ Exhibit K22.

²⁶⁹ Transcript of proceedings on 20 April 2010, PN8988.

²⁷⁰ Exhibit K22.

²⁷¹ Transcript of proceedings on 20 April 2010, PN8990 and Exhibit K22.

²⁷² Exhibit K22.

²⁷³ Transcript of proceedings on 20 April 2010, PN9012 & PN9015-PN9016.

²⁷⁴ Exhibit B94, email dated 15 September 2008.

²⁷⁵Transcript of proceedings on 20 April 2010, PN9030.

²⁷⁶ Transcript of proceedings on 20 April 2010, PN9036-PN9037.

²⁷⁷ Transcript of proceedings on 20 April 2010, PN9057.

²⁷⁸ Exhibit K26.

²⁷⁹ Ibid.

²⁸⁰ Transcript of proceedings on 21 April 2010, PN9877.

²⁸¹ Transcript of proceedings on 21 April 2010, PN9892.

²⁸² Transcript of proceedings on 21 April 2010, PN9882-PN9886.

²⁸³ Exhibits K40 & K41.

²⁸⁴ Exhibit B6, paras 475 & 478.

285 Transcript of proceedings on 18 August 2010, PN5614.

²⁸⁶ Pamela T Wilson v Australian Taxation Office, op cit, para 51. In that case the Full Bench found that a valid reason existed, even though the reason relied upon by the ATO was not that reason.

287 Transcript of proceedings on 18 August 2010, PN5423.

²⁸⁸ (1961) 60 AR(NSW) 48 at 66, per Richards, Beattie & Kelleher JJ.

²⁸⁹ A similar approach was adopted in Re: Australian Bureau of Statistics, PR963720, 10 October 2005, per Giudice P, Watson SDP, Simmons C, at para 22.

²⁹⁰ P Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, Print S5897, 11 May 2000, per Ross VP, Acton SDP, Cribb C, at para 64; Ben Clifton Sabeto v Waterloo Car Centre Pty Limited trading as Red Spot Rentals, PR930816, 20 May 2003, per Acton SDP, O'Callaghan SDP, Foggo C, at para 8.

²⁹¹ P Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, op cit, at para 73; Ben Clifton Sabeto v Waterloo Car Centre Pty Limited trading as Red Spot Rentals, op cit, at para 8.

²⁹² Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, op cit, at para 75.

²⁹³ Tenix Defence Systems Pty Ltd v Fearnley, Print S6238, 22 May 2000, per Ross VP, Polites SDP, Smith C, at para 83.

²⁹⁴ Shorten and Others v Australian Meat Holdings Pty Ltd, Ross VP, (1996) 70 IR 360, 361.

²⁹⁵ Wadey v YMCA Canberra [1996] IRCA 568 (12 November 1996).

²⁹⁶ MFI4.

²⁹⁷ Mr Barber may have been lead to believe that they were more that guidelines when, in paragraph 19 of the Record of Code of Conduct investigation, the Secretary refers to DPS ‘obligations’ under the Guidelines.

298 The expression used in paragraph 25 of Goreng Goreng v Jennaway (at paragraph 206 below).

299 [2005] FCA 786 (17 June 2005), per Stone J.

300 Written submissions dated 24 May 2010, para 440.

301 [1995] HCA 40; (1995) CLR 1 (6 September 1995), per Deane CJ and Toohey, Gaudron, McHugh, Gummow JJ.

302 [1983] HCA 10; (1983) 152 CLR 281 (18 March 1983).

303 Per Gibbs CJ, at paras 10-11.

304 Per Mason, Murphy, Wilson JJ, at para 17.

³⁰⁵ (1982) 7 ACLR 202, per Wootton J.

³⁰⁶ Sanford v Austin Clothing Company Pty Ltd trading as Gaz Man, Print S8287, 19 July 2000, per Watson SDP; Howarth v Mornington Peninsula Shire Council, Print S0138, 13 October 1999, per Whelan C; Andrew Kvackaj v Monash University, PR958598, 3 June 2005, per Ives DP; Shane Rolls v MacMahon Contractors Pty Ltd, PR968100, 27 January 2006, per Richards C.

³⁰⁷ [2007] FCA 2083 (12 December 2007).

308 Such as in transcript of proceedings on 30 March 2010, PN4887, PN4991-PN4995, PN5020, PN5021 & PN5033.

³⁰⁹ [1948] 1 KB at 229.

³¹⁰ Ibid.

³¹¹ At 230.

312 [1984] 3 All ER 935, [1983] UKHL 6, [1984] 3 WLR 1174, [1985] ICR 14, [1985] AC 374, [1985] IRLR 28, 22 November 1984, at page 17.

313 In Re Minister for Immigration and Multicultural Affairs [2003] HCA 30 (17 June 2003); 198 ALR 59, per Gleeson CJ, McHugh, Gummow, Kirby, Callinan JJ, the High Court indicated that it was open to the proposition that a decision can be invalid on the basis of irrational or illogical reasoning or fact finding by a decision maker, although something more serious than poor expression or reasoning would have to be demonstrated.

³¹⁴ [2011] FCA 30 (31 January 2011).

315 Transcript of proceedings on 14 September 2010, PN6894.

316 [2000] FCA 1339, 19 September 2000, per Gyles J.

317 [2007] NSWSC 490, 15 May 2007, per Einstein J.

318 [2004] FCA 586, 23 April 2004, per Gray J.

319 PR954267, 15 December 2004, per Acton SDP, Duncan SDP, Grainger C.

320 [2009] FCA 619, per Perram J.

321 Commonwealth Bank of Australia v Christian Orlando May, op cit, at para 20.

³²² Principle (j) of the McMahon v Gould principles.

³²³ Exhibit B39, pages 2451-2456.

324 Transcript of proceedings on 14 September 2010, PN6673-PN6674.

325 [2008] FCA 422 (1 April 2008), per Madgwick, J.

326 Mr Barber had been given copies of all of the witness statements and was clear on the allegations. However he still wanted to be provided with a copy of the CCTV footage. (Transcript of proceedings on 14 September 2010, PN6674.)

³²⁷ Two weeks from Mr Stone’s letter dated 7 November 2008.

328 This undisputed proposition is based on hearsay evidence by Ms Greening of what Mr Barber had said at a conference in the Commission. (Transcript of proceedings on 19 April 2010, PN6439)

³²⁹ Exhibit B16, page 561, para 24.

³³⁰ Transcript of proceedings on 15 February 2010, PN339 & PN341.

331 Transcript of proceedings on 14 September 2010, PN6563 & PN6574.

³³² Exhibit B12 & Exhibit B14.

³³³ Written submissions dated 24 May 2010, para 586.

³³⁴ Submission of Mr Barber in transcript of proceedings on 18 August 2010, PN5627.

³³⁵ Transcript of proceedings on 24 February 2010, PN4327.

³³⁶ Transcript of proceedings on 24 February 2010, PN4241-PN4244.

³³⁷ Transcript of proceedings on 22 April 2010, PN11288-PN11290.

³³⁸ Transcript of proceedings on 22 April 2010, PN11853.

339 Exhibit B109.

³⁴⁰ Re: P. Annetta, op cit, at para 16.

³⁴¹ Re Bostik (Australia) Pty Ltd v Vdimitrja Gorgevski [1992] FCA 209; (1992) 36 FCR 20 (14 May 1992) ), per Heerey J, at para 37.

³⁴² A factor held relevant in AWU-FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385 at 393, per Moore J, in the consideration of whether dismissal resulting from a physical confrontation was harsh, unjust or unreasonable.

³⁴³ Transcript of proceedings on 14 September 2010, PN6600-PN6602.

³⁴⁴ Written submissions dated 24 May 2010, para 53; transcript of proceedings on 18 August 2010, PN5395.

345 Transcript of proceedings on 18 August 2010, PN5556.

³⁴⁶ [1997] 854 FCA (1 August 1997).

³⁴⁷ [1984] HCA 46; (1984) 154 CLR 606.

³⁴⁸ [2010] FWAFB 4082, per Acton SDP, Ives DP, Smith C.

349 Transcript of proceedings on 18 August 2010, PN5837 & PN5839.

³⁵⁰ Whilst Messrs Williams and Silvano were not the subject if a CCI, Ms Greening was unaware of what action had been taken. Mr Barber did not ask Messrs Petteit, McDowall, Williams or Silvano whether any form of disciplinary action had been taken against either.

³⁵¹ In considering whether an inference could be drawn, I have been guided by the summary of principles for the drawing of inferences identified by a Full Bench of the Commission in A Smith and others v Moore Paragon Australia Ltd, (PR915674, 21 March 2002, per Ross VP, Lacy SDP, Simmonds C.

³⁵² Mr Stone had in his possession the statements that Messrs Cook and Webster made on 1 August 2008 and these went beyond the number of members of the public who witnessed Incident A.

³⁵³ Given that Mr Barber’s wording in the flyer would reasonably be expected to be offensive to Mr Williams, I would have thought the reason why he threw such unofficial material in the bin was obvious.

354 The number referred to by Mr Barber in his submissions. (Transcript of proceedings on 18 August 2010, PN5782) Mr Barber did not seek that others be summonsed to give evidence in these proceedings.

355 Exhibit K39, Attachment A.

356 This was to become Exhibit B17.

357 Para 390 of Submissions dated 24 December 2009.

358 Transcript of proceedings on 22 April 2010, PN11197.

359 Transcript of proceedings on 30 March 2010, PN4659-PN4665.

360 Transcript of proceedings on 15 September 2010, PN7718.

361 Transcript of proceedings on 15 September 2010, PN9061.

362 A common law estoppel arising from the facts, which prevents an unjust departure from an assumption of fact which the person estopped has caused another to adopt or accept for the purposes of their legal relationships - Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641. Estoppels in pais can be subdivided into estoppels by convention and estoppels by representation.

³⁶³ Refer to paragraphs 113-123.

364 As referred to in paragraph 291.

365 Of course, those prescribed arrangements do not constitute a code concerning the employment of PSS officers as they do not encompass the common law. Many conditions of employment remain within the discretion of executive government - Re: Department of Defence, PR935265, 28 July 2003, per Munro J, O’Callaghan SDP, Deegan C, at paras 133-134.

³⁶⁶ As testified by Mr McAppion. (Exhibit B1)

³⁶⁷ Transcript of proceedings on 21 April 2010, PN9669.

368 Transcript of proceedings on 20 April 2010, PN8052.

369 Transcript of proceedings on 18 August 2010, PN5630.

³⁷⁰ In forming this view I found the analysis of the basis of Mr Barber’s submission (refer to paragraph 70 of Blake Dawson’s written submissions dated 15 June 2010 on behalf of DPS) instructive.

³⁷¹ Transcript of proceedings on 30 March 2010, PN4730; R v Commonwealth Conciliation & Arbitration, Ex Parte Melbourne and Metropolitan Tramways Board (1965) 113 CLR 228 at 243, per Barwick CJ.

³⁷² Transcript of proceedings on 21 April 2010, PN11087-PN11090.

³⁷³Transcript of proceedings on 30 March 2010, PN5343 & PN5356.

374 Mr Barber claims that DPS caused, or were party to causing, the petition or used the petition for the purpose of defaming him and removing him from the PSS WCC (refer to subparagraph 34(e) above). DPS submits that the petition was not a departmental document, being signed by Mr Barber’s fellow workers.

³⁷⁵ DPS conceded he had been an effective union delegate. (Transcript of proceedings on 15 February 2010, PN241)

³⁷⁶ For example, Mr Mayne considered Mr Barber to perform well in his role as PSS officer and when he acted as a supervisor, but not to similarly perform when that role was combined with his roles as WCC representative and AFPA delegate. (Transcript of proceedings on 20 April 2010, PN9145-PN9156)

377 Transcript of proceedings on 18 August 2010, PN5920.

378 Transcript of proceedings on 18 August 2010, PN5909.

Printed by authority of the Commonwealth Government Printer