Costello v State of Queensland (Department of National Parks, Recreation, Sport and Racing)

[2014] QIRC 64

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Costello v State of Queensland (Department of
National Parks, Recreation, Sport and Racing)
[2014] QIRC 064
PARTIES:	Costello, Michael James
(Applicant)
v
State of Queensland (Department of National Parks, Recreation, Sport and Racing)
(Respondent)
CASE NO:	TD/2013/7
PROCEEDING:	Application for Reinstatement
DELIVERED ON:	7 April 2014
HEARING DATES:	27, 28 and 29 May 2013
29 May 2013 (oral submissions and Respondent's written submissions filed) 30 May 2013 (Applicant's written submissions filed)
MEMBER:	Industrial Commissioner Knight
ORDERS :	1. The application is refused.
CATCHWORDS:	INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - UNFAIR DISMISSAL - HARSH, UNJUST OR UNREASONABLE - Where allegations made against the Applicant in relation to failure to disclose Criminal Charges and Convictions - Where Applicant worked for the Public Service in law enforcement role - Where the nature of the criminal charges and subsequent convictions arose following acts of violence outside of work - Where issues of violence and racial tension were matters of ongoing concern in the environment where the Applicant discharged his duties - Where allegations of non-disclosure were substantiated - Where aspects of the disciplinary procedure were combined - Where the decision-maker also considered the criminal charges with respect to penalty - Where the Applicant applied for reinstatement - Matters referred to in s 77 of the Industrial Relations Act 1999 considered.
CASES:	Industrial Relations Act 1999, s 74, s 73(1)(a), Public Service Act 2008, s 181(2)(b)(i) and (ii) Commonwealth Bank of Australia v Barker [2013] FCAFC Blyth Chemicals Ltd v Bushnell [1933] HCA 8; [1933] 49 CLR 66
APPEARANCES:	Mr R. Reed, Counsel instructed by Just Us Lawyers for the Applicant. Mr J. Murdoch, Senior Counsel instructed by Minter Ellison for the Respondent.
Decision

Introduction

[1]     Mr Michael Costello (Mr Costello/the Applicant), an acting Head Ranger on North Stradbroke Island (the island) was terminated by the Department of National Parks, Recreation, Sport and Racing (the Department) on 14 January 2013, after he failed to adequately disclose criminal convictions recorded against him, following an altercation which occurred on the island during New Year's Eve celebrations in 2012 when he head-butted one man and punched another.

[2]    In a criminal trial, which subsequently took place on 19 September 2012, Mr Costello, who had been employed by the Department for just under three years, was found guilty of assaults occasioning bodily harm and also, common assault. Mr Costello received suspended sentences in respect of both charges, (five months and two months respectively) and had convictions recorded for both offences.

[3]    The Department contends Mr Costello was terminated because despite fully understanding his obligations to disclose the criminal convictions to his employer, he deliberately failed to do so, which it viewed as a serious breach of his obligations as a public sector employee.

[4]     The gravity of Mr Costello's conduct was allegedly made worse when considered against a backdrop where instances of ongoing violence on the island were a major area of sensitivity for both Queensland Parks and Wildlife Service (QPWS) and island community elders in the months leading up to his conviction and in an environment where Mr Costello himself held a law enforcement role as a Ranger.

[5]     Mr Costello's representatives argue that whilst he may not have fully complied with his obligations to provide details of the actual custodial sentences imposed as a result of the criminal court proceedings held on 19 September 2012, he did in fact provide a State Penalties Enforcement Registry (SPER) debt statement in response to a request for further information from Mr Rob Allen on 22 October 2012 which included details of the offences and monetary penalties.

[6]     In this regard, Mr Costello's representatives submit his termination was substantively unfair in that the Department not only erred with respect to one of its findings (Allegation 1) against the Applicant in relation to his alleged failure to disclose, which it nonetheless took into consideration in its final decision to terminate his employment.

[7]     Mr Costello also contends the disciplinary process undertaken by the Department with respect to the allegations around his failure to disclose was fundamentally flawed in that the Department failed to comply with its own disciplinary procedure by missing a crucial step in the guidelines, thereby denying him a fair opportunity to present his case and infecting the process with ostensible bias.

Issues for Determination

[8]     The issues for determination in this case are as follows:

1. Was Mr Costello's dismissal unfair? And
2. If his dismissal was unfair, what is the appropriate remedy?

[9] By virtue of s 73(1)(a) of the Industrial Relations Act 1999 (the Act), a dismissal is unfair if it is harsh, unjust or unreasonable. In this matter, in deciding whether a dismissal was harsh, unjust or unreasonable, the Commission has given consideration to a number of issues including:

(a) whether or not Mr Costello complied with his responsibilities under the Department's Criminal Charges and Conviction Declarations Procedure in that it is alleged he failed to adequately respond to a request from the Department to disclose details arising out of the hearing including convictions and penalties imposed;

(b) whether or not Mr Costello was provided with an opportunity to respond to allegations about his failure to comply with his disclosure responsibilities under the Criminal Charges and Conviction Declarations Procedure;

(c) whether or not there were any procedural errors in the application of the departmental disciplinary process which may have led to Mr Costello being denied a fair opportunity to present his case;

(d) whether or not the departmental decision maker in relation to Mr Costello's termination brought an impartial mind to the resolution of the allegations against the Applicant; and

(e) whether it was reasonable for the Department to form a view that the termination of Mr Costello's employment was a proportionate and reasonable penalty in the circumstances.

[10]  Whist I have not referred to all of the evidence provided during the proceedings I have, nonetheless, considered all of the material before me in arriving at my decision.

Relevant Issues Related to North Stradbroke Island

[11]  In 2011, the Federal Court made a determination of Native Title for the Quandamooka People on North Stradbroke Island. As part of this determination, the Queensland State Government and Quandamooka Yoolooburabee Aboriginal Corporation (QYAC) entered into a joint Indigenous Management Agreement (JIMA).

[12]  As part of these arrangements, Queensland Parks and Wildlife Service (QWPS) committed to employing a number of Quandamooka People in the position of "Ranger - Indigenous" on North Stradbroke Island.

[13]  Mr Costello commenced employment as a full time Ranger - Indigenous, in April 2010. At the time of his dismissal, Mr Costello had been appointed to the position of Acting Head Ranger on the island. Mr Costello's duties included:

	lead and manage a team of Rangers and other Regional staff;
	establish and maintain effective relationships with stakeholders including neighbouring landholders, other government departments and local Indigenous communities; and
	perform law enforcement and compliance activities.

[14]  Regrettably, violence and racial tension on the island was a common problem in the months preceding Mr Costello's dismissal. Dr Glaister, the Director-General of the Department of National Parks, Recreation, Sports and Racing highlighted various challenges which had arisen from a behavioural and conduct point of view within both the ranger service and the local community.

[15]  Dr Valerie Coombs, a member of the Quandamooka People of North Stradbroke Island and a full-time member of the Native Title Tribunal in Brisbane attributed the resignation of at least one Aboriginal employee of the Department to the increased racial tension between the QPWS and the Quandamooka community.

[16]  Dr Coombs also confirmed Mr Costello had directly raised issues with her with respect to the poor behaviour of some of the rangers, along with their use of bad language and threatening actions. Under cross-examination, Mr Costello agreed there were serious problems with respect to physical and domestic violence on the island.

[17]  Other examples provided by representatives of the QPWS such as Mr Rob Allen, Dr Glaister and Mr Clive Cook included complaints from QPWS staff in relation to being threatened whilst working on North Stradbroke Island, a robbery at the local post office where the post mistress was attacked and the post office was burnt down, allegations in relation to a QPWS ranger attacking a desk with a machete and various complaints or concerns raised from members of the local North Stradbroke Island community as well as a senior police officer in relation to the behaviour of QPWS employees and/or members of the local community.

[18]  Dr Glaister submitted he had previously spent some time discussing his concerns about the inappropriate conduct and behaviour of local rangers with one of the local elders of the Quandamooka community, stressing the importance of taking a strict approach to the enforcement of behaviour standards within the QPWS workforce.

[19]  Mr Rob Allen, the QPWS Area Manager of Moreton Bay also highlighted the high degree of tension within the community and serious concerns for the safety of QPWS staff on the island, highlighting the firm approach taken by the Department in relation to compliance with behavioural standards.

The events of 1 January 2012 and Departmental Disclosure Obligations

[20]  On the evening of 31 December 2011, Mr Costello attended a New Year's Eve function at a club on the island, subsequently becoming involved in an altercation with two men where he head-butted one and punched the other.

[21]  Mr Costello advised a senior work colleague, Mr Grayson (Acting Operations Manager), about the altercation in early January 2012. Mr Grayson advised Mr Costello to formally notify the QPWS if and when the police became involved.

[22]   On 3 April 2012, Mr Costello advised Mr Grayson he had been charged and was due to appear in court on 29 May 2012 where he would be entering a plea of not guilty.

[23]  Separate to these events, and in response to concerns around disclosure and notification of criminal charges and convictions by temporary rangers appointed on the island, Mr Grayson organised staff meetings at the end of March 2012 and early April 2012 advising QPWS staff on the island, including Mr Costello, of their obligations with respect to notifying the Department of any criminal charges or convictions.

[24]  A follow-up email, confirming these discussions was sent to all staff on Thursday 12 April 2012. The email included a relevant extract from the Code of Conduct for the Queensland Public Service, a link to the Criminal Charges and Convictions Declaration Procedure and an extract from the procedure which set out employees' specific responsibilities with respect to disclosure (JGR 6 of Exhibit 5).

[25]  In particular, the responsibilities included avoiding any conduct which may bring a Department of the Queensland Government into disrepute, ensuring actions did not raise doubts with respect to an employees' ability to carry out their official duties and to immediately notify a manager where an employee is convicted of an offence by a court, whether or not a conviction is recorded.

[26]   In early May 2012, Mr Moye requested hard copies of the Department's Criminal Charges and Declaration Procedure be distributed to all staff. By email on 9 May 2012 Mr Costello confirmed "...All staff now have a copy of the procedure & are aware of their obligation (sic)." (RA11 of Exhibit 6).

Criminal Proceedings and Departmental Request for Further Details

[27]  On 19 September 2012, the criminal hearing in relation to the charges against Mr Costello took place in the Cleveland Magistrates Court and he was subsequently convicted of Assaults Occasioning Bodily Harm (AOBH) and Common Assault (CA).

[28]  In respect of the AOBH charge, Mr Costello was sentenced to five months imprisonment wholly suspended for a period of 12 months and ordered to pay compensation of $800. In respect of the CA charge, the Applicant was sentenced to two months imprisonment wholly suspended for 12 months and ordered to pay compensation of $400.

[29]  Mr Rob Allen's evidence is that Mr Costello failed to provide the QPWS with the details about the hearing and/or convictions and penalties which were recorded and instead he heard about the hearing from a police contact.

[30]  Mr Costello gave evidence during the hearing the altercation that led to the convictions occurred after he took offence to a racist comment he had heard from one of the men in the toilet at the club during the course of the New Year's Eve celebrations (Exhibit 1).

[31]  In handing down his decision in the criminal proceedings that dealt with the subsequent charges, the Magistrate stated:

"…in the absence of any proposition to the contrary, the defendant had, for

whatever reason, it would appear to be based on racial grounds, attacked these two men, and it would appear after that, the reference to 'white maggots' and other words that were used, it was a totally unprovoked and vicious attack. It would appear, when one looks at and considers the story, the two men who were the victims of these assaults had little or no defence to the assaults." (page 24 of Exhibit 3).

[32]   With respect to Mr Costello's evidence, the Magistrate noted:

"The concerns that I have is that the story prepared by the defendant had rung through to me, when I listened to it, and tried to put the pieces together to be a

very carefully constructed, fabricated account…" (page 23 of Exhibit 3).

[33]  At the conclusion of the criminal proceedings the Magistrate rejected Mr Costello's suggestion he was acting in self-defence or that he had been threatened, describing outlining the attack by Mr Costello in the following way:

"Head-butting is another vicious form of attack. It would appear the facts in

this case show that there was an unprovoked attack…and he never had a

chance to defend himself." (page 27 of Exhibit 3).

[34]   After not hearing from Mr Costello with respect to the details and the outcome of the 19 September 2012 hearing, Mr Rob Allen, the QPWS Regional Manager for Moreton Bay wrote to Mr Costello on 22 October 2012 setting out his obligations under the Declarations Procedure (RA4 of Exhibit 6) and requesting details of the offences, along with confirmation or otherwise of any conviction and the penalties imposed. The letter also advised Mr Costello that a "failure to comply with the direction may result in the commencement of disciplinary action".

[35]  In response, Mr Costello sent an email to Mr Allen, attaching a copy of a State Penalties Enforcement Registry (SPER) debt statement (RA5 of Exhibit 6) which set out overdue amounts owed to SPER and included a brief description of the offence to the right of each listed dollar amount.

[36]  As part of his explanation for his initial 32-day delay in notifying the Department, Mr Costello contends that between 19 September and 4 October 2012, he received three enforcement orders from SPER which contained errors as well as a letter from his solicitor in the criminal proceedings which also contained errors with respect to the penalties imposed and the plea he entered on the day of the criminal hearing. In this regard, Mr Costello submitted he was loathe to provide the Department with further details given some the errors in the documents.

[37]  QPWS subsequently obtained a Verdict and Judgment Record from Cleveland Magistrates Court in the period after the 19 September 2012 criminal hearing which confirmed:

	Mr Costello had been found guilty of assaults occasioning bodily harm and common assault;
	Mr Costello had convictions recorded for both offences;
	Mr Costello received suspended sentences in respect of both charges; and

 Mr Costello had been ordered to pay compensation in relation to the

convictions.

[38]  Mr Allen formed a view Mr Costello had failed to provide the requested details in the form required and escalated the matter to Mr Clive Cook who on reviewing relevant correspondence and information including the Department's Criminal Charges and Declarations Procedure determined Mr Costello might be liable for disciplinary action for failing to declare convictions which had been recorded against him; and for failing to provide details of the penalties imposed as a result of the criminal proceedings as requested by Mr Allen.

[39]  Mr Cook prepared a show cause letter for Mr Costello which was handed to him on 14 November 2012. The letter set out details of the allegations relating to disclosure and indicated Mr Cook did not consider the SPER debt statement provided adequate details with respect to the convictions recorded or the penalties imposed.

[40]  The letter indicated Mr Costello may not have complied with various aspects of the Public Service Act 2008 (PSA), the Code of Conduct for the Public Service and the Department's Criminal Charges and Convictions Declaration Procedure (CC5 of Exhibit 7) and also indicated Mr Cook was giving serious consideration to recommending the termination of Mr Costello's employment to the Director- General.

[41]  Mr Costello was initially provided with seven days to respond to the show cause letter but successfully sought and was granted two further extensions of time to respond to the show cause letter giving the Applicant until 7 December 2012 to provide a response.

[42]  Just Us Lawyers responded to the show cause letter on behalf of Mr Costello by the required deadline; however it was caught in the Department's web filter due to some explicit language contained in the response document.

[43]  Not realising the filter had prevented the letter from being delivered to the Department, Dr Glaister (the Director-General) proceeded to make a decision to terminate Mr Costello's employment based on the information available to him at the time. However, the decision to terminate Mr Costello's employment was subsequently rescinded by the Department once it discovered Mr Costello's response had been caught in the filter.

[44]  That aside, Dr Glaister eventually did make a decision to terminate Mr Costello's employment by letter dated 14 January 2013. Mr Costello was terminated effective immediately with payment in lieu of notice.

[45]  After reviewing the correspondence from Just Us Lawyers and other relevant material, Dr Glaister's evidence is that he concluded:

	the allegations against Mr Costello were substantiated and a disciplinary penalty was therefore warranted;
	Mr Costello's failure to advise the Department in a full and frank manner was a serious breach of his obligations under the PSA and the Code of Conduct, and also amounted to a failure to comply with a specific direction given to him by his manager; and
	due to the seriousness of the allegations and the fact that the circumstances of the conduct compromised Mr Costello's ability to carry out his role, termination of employment was considered the appropriate penalty.

Did Mr Costello comply with his responsibilities under the Department's
Criminal Charges and Conviction Declarations Procedure?

[46]  Whilst conceding the Applicant did not fully comply with Allegation Two of the show cause letter which dealt with his obligations to provide details of the penalties imposed at the conclusion of the criminal proceedings, Mr Reed, Counsel for Mr Costello submitted the debt statement emailed to Mr Allen provided sufficient information to comply with s 181(2)(b)(i) and (ii) of the PSA, in that it identified the offences in respect of which monetary penalties had been imposed and clearly contained the words "convicted".

[47]  In this regard Mr Costello's representatives argue Allegation One of the Department's show cause letter has not been made out.

[48]  Conversely, Mr Murdoch, Counsel for the Department submitted Mr Costello failed in his duty to "immediately" notify of any convictions and penalties arising out of the criminal hearing on 19 September 2012. The Respondent contends the only information contained in the debt statement which was eventually provided on 22 October 2012 was a summary of the monetary compensation payable by Mr Costello as it related to each offence.

[49]  The Respondent contends that despite Mr Costello being fully aware of his obligations to notify the Department of any criminal convictions given the various staff meetings held by Mr Grayson in March and April 2012 in relation to employee disclosure responsibilities as well as the Applicant's subsequent distribution of the Department's Declarations Procedure to QPWS staff, that the debt statement provided by Mr Costello did not fully comply with Mr Allen's request in that it failed to provide any details of his convictions or the suspended sentences imposed.

[50]  In weighing up the respective positions and evidence of both parties and considering the available evidence, including Mr Costello's stated difficulties with respect to obtaining accurate documentation from his lawyer and the subsequent SPER notices, it is clear that whilst a narrow reading of Allegation One when read in conjunction with the SPER debt statement reveals references to the offences "committed" were contained in the debt statement, that the full extent of Mr Costello's convictions and suspended prison sentences were not declared in accordance with the Declarations Procedure.

[51]  As difficult as it may have been for Mr Costello to countenance the prospect of having to advise his employer about the outcome of the criminal hearing, there is no getting away from Department's Criminal Charges and Convictions Declaration Procedure which clearly sets out the Applicant's responsibilities in so far as they relate to:

	avoiding any conduct which may bring the Department of the Queensland Government into disrepute;
	notifying his Manager in writing immediately when he had been convicted of a criminal offence by a court, whether or not a conviction was recorded; and

 complying with all lawful instructions from relevant QWPS staff in

relation to managing a declaration of a criminal charges and convictions.

[52]  In this regard, I find that despite being well aware of his responsibilities under the Criminal Declarations Procedure, Mr Costello failed in his obligation to provide the Department with details in relation to his convictions and associated penalties in so far as these related to the suspended jail terms.

[53]  In failing to comply with his obligations under the Declaration Procedure, Mr Costello also breached section 1.5 of the Code of Conduct for the Public Service 2011 in that he failed to comply with policy obligations to report employee criminal charges and convictions.

[54]  The Code of Conduct also states that all public servants have a responsibility to conduct and present themselves in a professional manner, demonstrating respect for all persons, whether fellow employees, clients or members of the public. In this respect, Mr Costello failed to comply with the intent and spirit of this element of the Code.

Was Mr Costello afforded a fair opportunity to respond to allegations relating to his alleged failure to comply with the Declarations Procedure and breach of the Public Service Act 2008 and the Code of Conduct?

[55]  Mr Costello's representatives submit the show cause process was fundamentally flawed in that Mr Cook failed to comply with the Department's Investigation and Disciplinary Procedure by issuing only one show cause notice which called for submissions on a proposed penalty of termination, with guilt having already been established prior to receiving any response from the Applicant.

[56]   Instead, the Applicant has submitted the Department's procedure required the issuing of a first show cause notice dealing with liability issues. If, after having considered the available evidence and the response, the decision maker considered the allegations had been substantiated, then Mr Costello contends he should have been issued with a second show cause notice setting out the proposed penalty and providing him with an opportunity to respond.

[57]   In bypassing the liability stage and progressing immediately to the penalty aspects of the guidelines Mr Costello's representatives also argue the process was fatally infected by ostensible bias.

[58]  The Department contends that it complied with its procedure by providing Mr Costello with (a) details of the allegations against him; and (b) details of the proposed penalty to be imposed, giving the Applicant an opportunity to respond. Furthermore, the Department has submitted it granted two extensions to enable the Applicant to provide a response to the show cause letter before Dr Glaister made his final decision with respect to the allegations and proposed penalty.

[59]  Whilst I accept the steps contained in the procedure are only guidelines rather than a formal policy, a close examination of the content in the Disciplinary Procedure (Exhibit 7) in conjunction with Mr Cook's show cause letter of 14 November 2012, confirms the letter did combine both the allegations and the proposed penalty in the same show cause letter. A second show cause letter was not issued.

[60]  However, further scrutiny of the show cause letter and the manner in which it is drafted reveals that whilst the Department did deviate from the suggested approach set out in the procedures, that this was not a situation where Mr Cook missed the first step of the procedure with respect to issues of liability and moved straight to the penalty stage.

[61]  In my view, the letter, albeit in a somewhat clunky manner, combined both steps, providing Mr Costello with an opportunity to respond to both liability for discipline as well as the proposed penalty of termination in the event the allegations relating to non-disclosure and breaches of the PSA and Code of Conduct, were made out. Importantly, the letter made it clear that if any disciplinary action was taken, it would be in response to concerns arising out of Allegation One and Two and breaches of the related Code of Conduct and legislation.

[62]  This interpretation of the show cause letter and its intent is further supported by the subsequent response which was prepared by Mr Costello's lawyers on 7 December 2012.

[63]  The letter from Mr Costello's lawyers contains various submissions with respect to the allegations against the Applicant, as well as the proposed penalty of termination to the extent the author of the letter, whilst refuting any suggestion the Applicant has breached the PSA, the Code of Conduct or the Declarations Procedure, suggests that if its submissions with respect to the allegations were not accepted, then "our client's conduct at worst may merit reprimand..." (Annexure MJC8 of Exhibit 1).

[64]  The letter also makes submissions with respect to Mr Costello's capacity to continue to undertake his role as a Ranger notwithstanding the allegations and seeks to highlight the lack of connection between the Applicant's criminal convictions and his ongoing ability to effectively carry out his duties.

[65] Accordingly, in considering the evidence before the Commission as required by s 77(c), I conclude the Applicant has been given an opportunity to respond to the allegations against him and fairly state his case.

Was the penalty of termination disproportionate to the gravity of the conduct in respect of which the Department acted?

[66]  In their show cause response letter to the Department, Mr Costello's representatives refute the allegations his behaviour breached elements of the PSA, the Code of Conduct for the Queensland Public Service and the Departmental Criminal Charges and Convictions Declaration Procedure.

[67]  The responses in the letter also sought to persuade the Department there was an insufficient connection between the offences and Mr Costello's employment to make a decision that dismissal was warranted.

[68]  At the conclusion of the hearing, the Applicant further submitted the burden of evidence supported the submission Mr Costello had complied with the majority of his obligations under the PSA by supplying the debt statement in circumstances where the Department failed to comply with its own procedures in carrying out the disciplinary process.

[69]  With respect to the impact of the dismissal on Mr Costello, Mr Reid highlighted the Applicant's previous unblemished record, prior frankness with the Department about the initial altercation along with the Applicant's significant family responsibilities and the difficulties associated with securing alternative employment on the island.

[70]  Dr Glaister's evidence was that Mr Costello's submissions with respect to the connection between the circumstances of the offence and Mr Costello's employment were irrelevant to the issues of whether or not the offences of non-disclosure and breaches of the relevant code and Act were established.

[71]  However, he acknowledged the causal connection between Mr Costello's role, the offences and alleged breaches were relevant with respect to the determination of the disciplinary penalty in that if he had been persuaded that there was no impact on Mr Costello's ability to properly discharge the requirements of his role arising out of the nature of the underlying offence or his subsequent failure to comply with his reporting obligations, he may have decided on a lesser penalty.

[72]  The Respondent further submitted the following matters were ultimately relied on in reaching the decision to terminate Mr Costello:

	Mr Costello's failure to disclose details of his convictions and suspended sentences seriously jeopardized his ability to properly discharge the requirements of his role;
	Mr Costello's conduct damaged the essential element of trust between the parties;
	Mr Costello's conduct reflects poorly on the public service;

 Mr Costello's conduct has the potential to bring the Department into

disrepute;

 Mr Costello's continued employment posed a serious risk for the

Department; and

 Mr Costello's continued employment would have compromised the

integrity of the QPWS on North Stradbroke Island.

[73]  In finding Mr Costello failed to comply with the Convictions Declarations Procedure, the Public Service Act 2008 and the Code of Conduct and considering the nature of the Applicant's conduct in an environment where racial tension and violence had been identified by the QPWS as a significant issue and where Mr Costello held a law enforcement role, it is difficult to identify what other options were available to the Department in relation to penalty, aside from termination.

[74]  Had Mr Costello declared the details of the offences, the convictions and related penalties immediately after the criminal proceedings of 19 September 2012, I consider it may have been open to the Department to consider a transfer or some other options aside from termination when considering how to respond Mr Costello's disclosure.

[75]  The difficulty Mr Costello has however is that he further compounded the employment challenges that arose out of his criminal charges by then failing to comply with the declarations procedure in that he did not disclose any details in relation to the hearing until 22 October 2012.

[76]  In reviewing the evidence, it is open to the Commission to conclude that the only reason the debt statement was provided to Department was because Mr Allen had heard about the hearing from a third party and wrote to the Applicant requesting further details in accordance with the Declarations Procedure. Even then, the details provided by Mr Costello were inadequate.

[77]  In this regard, there was no opportunity for the Department to consider the implications of the criminal charges on their own in so far as they may have might have impeded the Applicant's leadership and compliance role without then having to also deal with problems associated with Mr Costello's non-disclosure.

[78]  A situation now arises where in failing to disclose details of convictions and despite being well aware of his obligations, the Respondent is claiming Mr Costello has seriously undermined the essential element of trust between himself and the Department. In addition, Dr Glaister's evidence was that he formed the view Mr Costello's ability to lead and manage a team of Rangers and other regional staff was compromised by the fact that he had been found guilty of a serious assault and had received a suspended jail sentence.

[79]  Whilst it is unclear on the evidence as to whether Dr Glaister had access to the Magistrate's comments in relation to the criminal proceedings at the time of making the decision to terminate Mr Costello, the evidence before the Commission is that the Magistrate concluded the attack by the Applicant appeared to be based on racial grounds and that during the course of the altercation there was a reference by the Applicant to "white maggots".

[80]  Having closely considered all the evidence and in particular, Dr Glaister's considerations when coming to a conclusion with respect to a penalty, it is the Commission's view that it was open to the Department to make a decision to terminate Mr Costello's employment.

1

[81] In Commonwealth Bank of Australia v Barker the Court referred to Blyth Chemicals

2

Ltd v Bushnell wherein Dixon and McTiernan JJ stated:

"Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer; or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal (Boston Deep Sea Fishing

and Ice Co. v. Ansell [5]; English and Australian Copper Co. v. Johnson [6];

Shepherd v Felt and Textiles of Australia Ltd [7]). But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence."

[82]  In effect, not only did the Applicant seriously damage the trust relationship between himself and the Department, but the circumstances leading to the criminal charges when considered in a context where issues of violence and racial tension on the island were an ongoing concern, understandably contributed to a situation where the Department had lost complete confidence in Mr Costello's capacity to carry out a role that included leadership, stakeholder and law enforcement responsibilities.

Employment History and Impact of Termination on Applicant

[83]  In reaching a decision as to whether the dismissal was harsh, unjust or unreasonable I have also taken into consideration the Mr Costello's work history along with further submissions in relation to the impact of the termination in so far as it related to his family responsibilities and the challenges associated with obtaining alternative employment on the island.

[84]  Having considered his conduct during the hearing and further responses under cross- examination with respect to his work history and experience, I note the Applicant is an articulate and highly qualified fellow who confirmed he was in fact living on the mainland and had secured temporary employment on the island in a slightly higher paid role approximately six weeks after being terminated.

Conclusion and Order

[85] Having carefully weighed all the evidence and considered the matters that the Commission is required to consider under s 77 of the Act, I conclude that the Applicant's dismissal was not harsh, unjust or unreasonable. The dismissal was therefore not "unfair" within the meaning of s 73.

[86] Accordingly, the application is dismissed.

1 Commonwealth Bank of Australia v Barker [2013] FCAFC

2 Blyth Chemicals Ltd v Bushnell [1933] HCA 8; [1933] 49 CLR 66