Deb v City of Burnside

Supreme Court of South Australia
(Civil)
DEB v CITY OF BURNSIDE
[2023] SASC 14
Judgment of the Honourable Chief Justice Kourakis
EMPLOYMENT LAW - TERMINATION AND BREACH OF CONTRACT
EMPLOYMENT LAW - TERMINATION AND BREACH OF CONTRACT - GROUNDS
LOCAL GOVERNMENT - REGULATION AND ADMINISTRATION - STAFF, OFFICERS AND SERVANTS - DISMISSAL
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH
This is an action for damages for breach of contract.
The applicant was employed as the chief executive officer of the respondent, the City of Burnside. In July 2015 the applicant entered into an employment agreement with the respondent for a term of five years. The employment agreement provided that the applicant’s employment could be terminated summarily for cause on one or more of the grounds set out in clause 16.1 of the employment agreement.
In June 2019 the respondent summarily terminated the applicant’s employment. The applicant claims damages for breach of contract calculated by reference to the balance of the term of his employment agreement as well as damages for the loss of chance that the applicant’s contract would have been renewed.
The respondent relies on five grounds to justify the applicant’s summary dismissal, namely, the applicant’s:
1.failure to counsel against emails exchanged between senior executives of the respondent and councillors which were critical of other councillors;
2.failure to disclose his role in the email exchanges when taking disciplinary action against two of the executive officers who sent the emails;
3.disparaging comments about several councillors who had just taken office at a meeting of the respondent’s executive leadership team;
4.allusion to an imagined intimate personal interaction between the mayor and her husband in a conversation with other senior staff of the respondent; and
5.storing of personal intimate photographs of himself and his romantic partner in the respondent’s Drop Box account.

Held (dismissing the claim):
1.The applicant’s failure to counsel against the distribution of the emails, his subsequent failure to disclose his role in the email exchanges whilst conducting the disciplinary proceedings, and the disparaging commentary of councillors at the executive meeting were in themselves fundamentally inconsistent with the trust and confidence which were a necessary element of the relationship between the respondent and the applicant as its chief executive. That conduct warranted the applicant’s summary dismissal.
2.The respondent’s conclusion that the applicant could no longer be relied on to consistently and properly discharge his duties as its chief executive was warranted and his dismissal justified.

Local Government Act 1999 (SA) SS 96, 97, 99, 101, 103, 120, referred to.
Adami v Maison De Luxe Ltd (1924) 35 CLR 143; Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66; Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221; Rankin v Marine Power International Pty Ltd (2001) 107 IR 117, discussed.

DEB v CITY OF BURNSIDE
[2023] SASC 14
Civil

KOURAKIS CJ: This is an action for damages for the wrongful summary dismissal of the applicant, Mr Deb, from his position as the Chief Executive of the respondent, the City of Burnside (Burnside).
The grounds on which Burnside relies to justify Mr Deb’s summary dismissal are:
1.Mr Deb’s encouragement of, or failure to counsel against, emails exchanged between senior executives of Burnside, and some councillors, which were critical of other Burnside councillors for failing to protect staff from the bullying behaviour of a former councillor, Mr Bagster;
2.Mr Deb’s failure to disclose his role in the email exchanges to the then Mayor, Ms Monceaux, when taking disciplinary action against two of the executive officers who sent the emails;
3.Mr Deb’s disparaging comments about several councillors who had just taken office at a meeting of Burnside’s executive leadership team on 28 November 2018 (the executive meeting);
4.Mr Deb’s allusion to an imagined intimate personal interaction between Mayor Monceaux and her husband in a casual conversation with two other senior Burnside staff;
5.Mr Deb’s storing of personal intimate photographs of himself and his romantic partner in Burnside’s Drop Box account.
I find that Mr Deb did engage in the conduct alleged in each of those grounds.
I also find that the failure of Mr Deb to counsel against the distribution of the emails, his subsequent failure to disclose his role in the exchanges whilst conducting the disciplinary proceedings, and the disparaging commentary of councillors at the executive meeting were, in themselves, fundamentally inconsistent with the trust and confidence which were a necessary element of the relationship between Burnside and Mr Deb as its Chief Executive. That conduct warranted his summary dismissal. Mr Deb’s conduct in those respects manifested, either a profound ignorance of, or a flagrant disregard for, the essential elements of his relationship with Burnside as its Chief Executive. In either case, Burnside’s conclusion that Mr Deb could no longer be relied on to consistently and properly discharge his important duties as its Chief Executive was warranted and his dismissal justified.
The conduct the subject of the other grounds of complaint reinforces my conclusion. Ground 4 shows an underlying disrespect for the Mayor whom Mr Deb was duty-bound to faithfully serve. Ground 5 manifests an attitude that Mr Deb was not bound by the workplace behavioural standards expected of other employees, when in fact it was his duty to model those standards.
In all the circumstances, there was no realistic prospect that Mr Deb would maintain the high standards properly expected of a Chief Executive of an organ of local government if he remained in his position.
I therefore dismiss the action.
The employment relationship
The office of Chief Executive of a council is a statutory one constituted by s 96 of the Local Government Act 1999 (SA) (the Local Government Act). Section 99 of the Local Government Act provides:
99—Role of chief executive officer
(1)The functions of the chief executive officer include—
(a)to ensure that the policies and lawful decisions of the council are implemented in a timely and efficient manner;
(b)to undertake responsibility for the day-to-day operations and affairs of the council;
(c)to provide advice and reports to the council on the exercise and performance of its powers and functions under this or any other Act;
(d)to co-ordinate proposals for consideration by the council for developing objectives, policies and programs for the area;
(e)to provide information to the council to assist the council to assess performance against its strategic management plans;
(f)to ensure that timely and accurate information about council policies and programs is regularly provided to the council's community, and to ensure that appropriate and prompt responses are given to specific requests for information made to the council;
(g)to ensure that the assets and resources of the council are properly managed and maintained;
(h)to ensure that records required under this or another Act are properly kept and maintained;
(i)to give effect to the principles of human resource management prescribed by this Act and to apply proper management practices;
(j)to exercise, perform or discharge other powers, functions or duties conferred on the chief executive officer by or under this or other Acts, and to perform other functions lawfully directed by the council.
(2)The chief executive officer must consult with the council (to a reasonable degree) when determining, or changing to a significant degree—
(a)the organisational structure for the staff of the council; or
(b)the processes, terms or conditions that are to apply to the appointment of senior executive officers; or
(c)the appraisal scheme that is to apply to senior executive officers.
As can be seen, the Chief Executive bears ultimate responsibility for the public facing business of the council (s 99(1)(b)), and performs the essential executive function of implementing the deliberative legislative and policy directives of council in a timely and efficient manner (s 99(1)(a)). The council relies on the Chief Executive to give sound advice (ss 99(1)(c) and (e)) and to manage council staff, (ss 99(1)(i) and s 99(2)).
The statutory responsibility for the management of Burnside staff was imposed on Mr Deb by s 103 of the Local Government Act:
103—Appointment etc by chief executive officer
(1)     The chief executive officer is responsible for appointing, managing, suspending and dismissing the other employees of the council (on behalf of the council).
(2)     The chief executive officer must ensure that an appointment under subsection (1) is consistent with strategic policies and budgets approved by the council.
(3)     The chief executive officer must, in acting under subsection (1), comply with any relevant Act, award or industrial agreement.
(4)     Suspension of an employee by the chief executive officer does not affect a right to remuneration in respect of the period of suspension.
Mr Deb was employed by Burnside as its Chief Executive by written agreement dated 30 June 2015 (the employment agreement). The description of the Chief Executive’s position in the first schedule to the employment agreement is consistent with those statutory responsibilities and includes as its ‘Key Position Objectives’ the following:
·The Chief Executive is the principal advisor to the Council; and
·The Chief Executive delivers effective management of the organisation for the efficient execution of its day-to-day operations.
It was a term of the agreement that a key responsibility of the Chief Executive is to lead the organisation in a way which is constructive, collaborative, and builds trust.
In her evidence one of Burnside’s councillors, Ms Lemon, explained the importance of frank, honest and respectful dealings between Burnside and its Chief Executive in this way:
Q.Tell me this, ideally what does a good relationship between the executive and the council look like in how they interact over things. I don’t know much even about what sort of interaction councillors do have with executives; how often it is, the parameters around the things they can discuss. So just tell me a bit about what you think is important to have on the side of both councillors and executives to have a good working relationship.
A.I think the first thing is mutual regard, then availability, honesty.
Q.Availability on both sides.
A.Yes. And honesty, so there’s trust that’s built from that. The capacity to actually be frank with one another, so I disagreed with what you did and these are the reasons why, and can we fix this in some way. And that’s a two-way street too. We are all human beings and we all have failings and it would be pointless to have an executive that couldn’t point out my failings, or where I’ve been wrong, or why I’m doing the wrong thing, or looking at it the wrong way. So that to me is the ideal relationship.
I have regard to Councillor Lemon’s testimony about the nature of the relationship as evidence of the institutional context in which the employment agreement operated. In the course of her evidence, Ms Lemon also gave her opinions on how seriously Mr Deb’s conduct in respect of the emails should be treated. However, whether or not Mr Deb’s conduct warranted summary dismissal is a question of mixed fact and law to be determined by me in my role as the tribunal of fact and law. I do not place any weight on Ms Lemon’s subjective opinions on how Mr Deb’s conduct should be viewed.
Mr Deb’s duties and responsibilities were set out in clause 7 of the employment agreement and included obligations to:
·comply with the Code of Conduct for Council Employees (clause 7.1.1);
·observe and comply with obligations under the Local Government Act 1999 (SA) (clause 7.1.2);
·observe and comply with all lawful directions and instructions of the Council (clause 7.1.3);
·be just and faithful to the Employer and promptly give to the Employer full information and truthful explanations of all matters relating to his Duties and responsibilities under the Agreement (clause 7.1.5);
·at in the best interest of the Employer at all times (clause 7.1.6);
·personally observe the requirements of the Employer’s policies and procedures enforced from time to time (clause 7.1.11); and
·carry out and perform the Duties lawfully, with proper decorum and to the best of his ability and judgment (clause 7.1.12).
I draw attention, in particular, to clause 7.1.5, which imposes a duty of fidelity, and to make full and truthful disclosures.
The term of Mr Deb’s employment was five years and therefore would, in the ordinary course, have expired on 30 June 2020. His total remuneration package was $241,543.14. It was subject to an annual performance review.
Clause 9 required Mr Deb to disclose to the Council any interest (direct or indirect) which may give rise to a conflict with the performance of his duties and responsibilities.
Clause 14 provided for annual performance reviews:
14. Performance Review
14.1The parties agree that the CEO will undergo an annual performance review each year of this Agreement, which will be conducted in accordance with the CEO Committee Terms of Reference.
14.2The CEO must participate in any performance review required by the Employer.
14.3A written report, the Committee Report to Council, shall be compiled with respect to the performance review and a copy provided to the CEO. The Report shall set out in detail any particular aspects of the CEO’s performance that require improvement, together with reasonable time frames within which the Council expects those areas of performance to be improved to a specified standard.
14.4The Employer must provide whatever counselling, advice and assistance are reasonably necessary to enable the CEO to improve his performance during that period.
14.5At the conclusion of the time frames referred to in Clause 14.3 and after taking into account the written report referred to in that Clause (and such other matters as the Employer considers relevant), the CEO will either:
14.5.1be informed that performance has improved to the satisfaction of the Employer and that no further action will be taken; or
14.5.2be provided with further written notice, providing final warning that unless the CEO’s performance improves in the same stipulated areas, once again within a time frame, the Employer will terminate this Agreement pursuant to Clause 16.3.1.
14.6.The CEO’s Performance Development Plan must be reviewed and, if necessary, amended by agreement within two months after each performance review.
Clause 16.1 of the employment agreement provided that it may be terminated without notice and without the payment of compensation in lieu of notice in the event that Mr Deb:
·committed any serious or persistent breach of any of the terms of the Agreement (clause 16.1.1);
·engaged in serious and wilful misconduct (clause 16.1.1.2);
·was guilty of serious neglect of duty in the discharge of the Duties (clause 16.1.1.3);
·knowingly acts in breach of the Employer’s Policies enforced from time to time (clause 16.1.1.4);
·made improper use of his Employer’s property (clause 16.1.1.5);
·failed to display and exercise the CEO’s duty of fidelity or good faith towards the Employer which the Employer might reasonably expect of the CEO (clause 16.1.1.6); or
·was convicted of any criminal offence which prescribes a term of imprisonment (clause 16.1.1.7).
Again, I observe that a failure to display fidelity or good faith warrants summary dismissal pursuant to clause 16.1.1.6, and that clause 16.1.1.3 includes serious neglect of duty amongst the grounds justifying summary dismissal.
Clause 16.2 provided for termination due to illness or incapacity. Clause 16.3 provided that Burnside may terminate the employment agreement by two months’ notice if Mr Deb failed to reasonably meet expected performance standards determined through the performance review process, and without any cause by the giving of nine months’ notice.
A Code of Conduct for Council Employees (the Code of Conduct) was gazetted on 20 February 2014 pursuant to s 110(1) of the Local Government Act. The Code of Conduct probably ceased to have legal effect after the Local Government (General) (Employee Code of Conduct) Variation Regulations 2018 (SA) came into effect on 2 April 2018 but a code of conduct in substantially the same terms was thereafter adopted by Burnside.
Clause 2 of the Code of Conduct required Council employees to:
·act with reasonable care and diligence in the performance of official duties (clause 2.2);
·discharge duties in a professional manner (clause 2.3); and
·act in a reasonable, just, respectful and non-discriminatory way when dealing with all people (clause 2.5).
·In respect of relationships with Council, employees are required to:
·not make any public criticism of a personal nature of fellow Council employees or Council members (clause 2.16);
·take reasonable care that their acts or admissions do not adversely affect the health and safety of other persons (clause 2.17); and
·direct any allegations of breaches of the Code of Conduct for Council Members to the Chief Executive or nominated delegate (clause 2.18).
I draw attention to the obligations to act professionally and respectfully (clauses 2.3 and 2.5) and not to make personal criticisms of councillors (clause 2.16). The role of the Chief Executive to receive complaints against councillors from other Council employees (clause 2.18) reflects the special responsibility of the Chief Executive to appropriately manage conflict between employees and Council members.
Clause 7 of Burnside’s Performance Management and Misconduct Protocol (the protocol) sets out a hierarchy of disciplinary action which may be taken in respect of under‑performance or behavioural misconduct:
7.2The protocol sets out the following steps:
7.2.1Preliminary discussion meeting (verbal caution);
7.2.2First written warning;
7.2.3Final written warning;
7.2.4Final review (up to including Termination of Employment).
7.3 These are normal steps which will afford the employee a maximum opportunity to come to terms with the requirements. However, there may be instances where the issue is so serious that it requires immediate correction.
7.3.1First and Final Warning - In such a case it may be necessary to proceed immediately to the final warning stage. Following an investigation of an alleged incident, breach of standard, Council policy or protocol, the Manager/Team Leader, in conjunction with a representative from People Culture, will determine the appropriate level of warning to be issued to the employee.
7.3.2Summary Dismissal – If the problem is such that it may involve serious and wilful misconduct or other behaviour or performance so destructive of the employment relationship that, following investigation, it may result in a summary dismissal without other warnings being issued.

It is of some importance that the proviso in clause 7.3.2 recognises that not only serious and wilful misconduct, but also other behaviour or performance destructive of the employment relationship, may result in summary dismissal without giving any earlier warning.
Clause 8 of the protocol deals with preliminary discussions, meetings and verbal cautions. It provides that, generally, counselling and coaching will be provided before disciplinary warnings are given. The aim of preliminary discussions, which are arranged by a Manager or Team Leader, is to address the problem in a relaxed environment and to establish a plan of action to deal with the issue.
Clause 9 of the protocol provides that first written warnings are not to be considered without first involving Burnside’s human resources section, known as ‘People and Culture’. The outcomes may include taking no action, a verbal caution, a written warning, an improvement plan, or training or retraining.
Clause 9.8.4 provides that a first warning may also operate as a final warning:
First and Final Warning may be issued as outlined in 7.3.1 if the issue is so serious it requires immediate correction. As part of the performance management process, in addition to a letter outlining the details of the First and Final Warning, an IP or training retraining may be included as part of the outcomes which would be reviewed within an agreed timeframe.
The Ombudsman investigation
The conflict between Mr Bagster and Burnside’s staff was sourced in Mr Bagster’s political isolation on Council such that he could not garner support on Council for his projects. As a result, he attempted to conscript certain of Burnside’s staff to promote his projects. When one of Burnside’s employees, Ms Miller-Frost, was tasked to report on one such project she recommended against it and tensions increased. Mr Bagster made a complaint against Ms Miller‑Frost, who was exonerated by the ensuing investigation.
The tension arising out of that episode spilt over into the relationship between Mr Deb and Mr Bagster. The Council intervened after an email exchange between Mr Deb and Mr Bagster. Mr Bagster sent an email to Mr Deb in November 2016 which read ‘please tell me when I start to have fun and I will up my meds’. Mr Deb responded with the following:
… stop bullying and harassing me publicly. You are a very rude man who thinks that you can say anything and get away with it. Are you on your meds now. If not, you should be. By the way you made that little gem known to many.
After an investigation Mr Deb was required to give Mr Bagster a written apology. Even though Mr Deb and Mr Bagster were counselled by the Council to cease direct communications, Mr Bagster continued to openly criticise Mr Deb. Mr Deb, some councillors and senior Burnside staff, were driven to seek intervention orders against Mr Bagster.
In 2018, the souring relations between the senior staff of Burnside and Mr Bagster broke out into open hostility. In his evidence Mr Deb described Mr Bagster’s behaviour in this way:
A.He was openly critical of me in the way that I managed the organisation at an administrative level. So he would send emails, text messages, publicly say to them, to the mayor and other elected members, that he didn’t think that I was capable of doing the job and that type of thing.
Mr Deb took time off work to cope with the stress he suffered. Mr Cant’s observations of Mr Deb at the time left him concerned for Mr Deb’s welfare. Mr Cant made similar observations about the effect of Mr Bagster’s behaviour on his colleague Mr Cooper. In his evidence, Mr Spearman described Mr Bagster’s conduct as relentless bullying. The senior executives strongly supported each other in the face of Mr Bagster’s intemperate criticisms.
Ms Lemon also observed the adverse effects of Mr Bagster’s bullying on Mr Deb. Ms Lemon, who was at the time, and remains, a councillor, gave evidence of the steps she and the former Mayor took out of concern for Mr Deb’s wellbeing:
A.We met after hours and I suggested that he might take some leave, I suggested that - and council was clear that we were very supportive of him - that he might take some leave to get some distance between what was happening at council and refresh himself in some way. I suggested that he might take some counselling. We suggested many - well, I suggested many things and I know the former mayor suggested many things, to make sure that his mental wellbeing stayed whole through that process.
In cross-examination, Ms Lemon described the effect of Mr Bagster’s bullying and harassment on Burnside’s staff as follows:
Q.And in particular, damaging to Paul Deb.
A.As much as anyone else.
Q.And perhaps also Mr Cooper in a significant way, and others as well.
A.Including elected members.
Q.Yes, and I think yourself and the mayor had some discussions with Paul to try and ensure his mental health was being looked after.
A.I had discussions with him. The mayor told me had. I was not present for his discussions.
Q.But also the council itself took a number of measures to try and protect the health and wellbeing of the staff in respect of Councillor Bagster’s conduct.
A.Yes.
Q.In respect of those measures, a number of them were not supported by, really, a bloc of voters, then-Councillor Monceaux, Councillor Ford, Lord, and Bills.
A.Yes.
Mr Cant’s evidence too was that Mr Deb and Mr Cooper bore the brunt of Mr Bagster’s attacks:
Q.And during the time leading up to July 2018, in particular, yourself, and Mr Deb and Mr Cooper had been subject to a relentless attack by Councillor Bagster.
A.That was the findings of the Ombudsman and that’s how I felt.
Q.That’s how you experienced it.
A.Yes.
Q.And from your observations that’s how Mr Cooper and Mr Deb experienced it.
A.From my observations, yes.
Q.And that behaviour wasn’t confined to the three of you but you probably bore the brunt of Councillor Bagster’s behaviour.
A.Probably Mr Cooper and Mr Deb more than I did, but I was certainly part of it and the executive team absolutely bore the brunt of it.
…
Q.If anything, the leadership team had become close[r] during that time than it had been because of the adversity.
A.I think because of.
Q.Nevertheless, it took its toll on you.
A.Yes.
Q.It appeared, from your observation, to take its toll on Mr Cooper.
A.Absolutely.
Q.And it took its toll on Mr Deb.
A.Absolutely.
On 25 October 2017, the Independent Commissioner Against Corruption referred certain complaints made against Councillor Bagster, to the Ombudsman for investigation. The referred matters included whether Mr Bagster had committed misconduct in public office by bullying or harassing other Council members or members of the Council’s staff between 1 March 2017 and 25 October 2017. In his report, published on 13 September 2018, the Ombudsman found that Mr Bagster had bullied and harassed the then Mayor, Mr Parkin, Councillors Davis and Osterstock, the Chief Executive Mr Deb, and Burnside’s executive officers Mr Cooper and Mr Cant contrary to s 63(2) of the Local Government Act. Other adverse findings were also made but need not be detailed for present purposes.
The Ombudsman found that whilst Mr Bagster remained in his role as a councillor, he posed a risk to the safety and welfare of other councillors and Burnside’s senior staff. The Ombudsman found that Councillor Bagster’s position as an elected member of Council was no longer tenable. The Ombudsman’s opinion was that Mr Bagster’s conduct warranted the laying of a complaint in the District Court under Chapter 13, Part 1 of the Local Government Act seeking orders for his suspension or disqualification.
The Ombudsman recommended that the Council publicly reprimand Mr Bagster for each breach of the Code of Conduct found by him. The Ombudsman also recommended that Burnside allow Mr Bagster a period of seven days in which to resign, failing which Burnside should lodge a complaint against him in the District Court. The Ombudsman noted, however, that the position was complicated by the imminent Council elections. As it transpired, Mr Bagster heeded the Ombudsman’s advice and resigned on 17 September 2018 by sending an email to the Minister for Local Government. He did not recontest the election. The Ombudsman’s report was made public on 5 October 2018.
The emails claiming vindication
At 9.15 am on Saturday, 6 October 2018, Mr Cooper sent an email (Mr Cooper’s Saturday email) to senior members of Burnside’s executive team and to some of its councillors, saying:
In light of the publication of the Ombudsman’s Report yesterday, I believe that some of the City of Burnside elected members should hang their heads in shame at the way they consistently voted, despite the weight of the evidence that they were privy to a significant period of time …
In response, the then Mayor, Mr Parkin, responded to Mr Cooper and to all of the recipients of Mr Cooper’s Saturday email, writing:
I was intending to propose that the councillors who aided and abetted LB in his tirades against the administration should be named and asked to apologise.
Bills Monceaux Lord Ford.
In his evidence, Mr Deb accepted that Mr Cooper’s email was not appropriate. However, at no time during that day did he counsel Mr Cooper against repeating his strong criticism, ‘hang their heads in shame’, of some councillors.
On Sunday 7 October 2018 at 5.09 pm, Mr Spearman sent an email to Mr Cooper and Mr Deb to which was attached a draft letter. The email said:
I am tempted to send something like this to Leadership Team tomorrow morning.
It probably reads a little emotive so I’m going to sleep on it and revise it tomorrow before sending.
Let me know if there is anything I should add/revise or omit.
The draft letter provided background to the release of the Ombudsman’s report. It referred to Mr Bagster’s conflict with Ms Miller-Frost. The letter records Mr Deb’s unsuccessful efforts to resolve the dispute, formally and informally. It also referred to the complaint made by Mr Bagster against Ms Miller-Frost. However, in Mr Spearman’s account of the investigation of the complaint, he mistakenly omitted the word ‘not’ such that it read ‘For your information the independent investigation concluded that the senior staff member failed in her duties or was guilty of any violation of her responsibilities’.
Mr Spearman’s draft letter concluded:
All of the Elected Members were witness to the correspondence and witness to all of the same correspondence of the Ombudsman and I find it reprehensible that the decisions relating to the protection of staff were not unanimous. Some even used this to their political advantage, for example, I feel I was deliberately targeted on Today Tonight for my role in providing requested information and putting in measures I deemed fair to also reduce the impact of a situation that was spiralling out of control. You will note from the broadcast that my name and photograph were smeared on that episode for ‘buying regular chocolates from ‘Bracegirdles”. If you go through the information from the FOI, my reputation was smeared for a grand total of $35.30 expenditure there … Thanks to the Ombudsman’s recommendations I hope that the legislation will be changed to more effectively deal with bullying going forward.
(Emphasis in original)
In his evidence, Mr Spearman explained that his purpose in proposing to circulate the letter was to explain to Burnside’s senior executives the extent and effects of Mr Bagster’s harassment of the staff.
At 6.51 pm Mr Cooper wisely responded to Mr Spearman’s email suggesting that he ‘sleep on it’:
Thanks mate – always good to sleep on it … and get Paul’s feedback. Only one small change for, e [sic] I think the investigation proved Louise didn’t fail etc … you have it the other way around haha!
Well done and good initiative mate.
At 8.50 pm Mr Deb provided his feedback to Mr Spearman and complimented him on the letter:
That’s fantastic Matt.
One minor change, last sentence of the third paragraph, you have said that the senior manager failed when you accidentally missed the “not”.
Mr Deb testified that what he thought was ‘fantastic’ was Mr Spearman’s collegiality and honesty. He said that he did not turn his mind at the time to whether it was appropriate for Mr Spearman to describe the lack of unanimous support for the staff as ‘reprehensible’ but accepted in his evidence that, on reflection, it was inappropriate.
I do not accept Mr Deb’s testimony that he was praising Mr Spearman’s collegiality and not the contents of his letter. Mr Deb’s view that Mr Spearman’s letter was ‘honest’ must, at least primarily, have been based on its contents. Moreover, the only, ‘minor’ matter he thought to correct was the omission of the word ‘not’. The ordinary meaning of his comment was that he otherwise agreed with what Mr Spearman had written. Again, Mr Deb failed to caution Mr Spearman against distributing the letter.
Mr Spearman sent his email to the executive team the next day.
Mr Cooper, whom Mr Deb had not counselled about his Saturday email, responded to Mayor Parkins’ email at 8:50 pm on Sunday evening (Mr Cooper Sunday email):
Thank you David and very well said!
What still appals me however are those Councillors who knew what was happening and despite the significant WHS concerns, still chose to aid and abet Bagster in his tirades against the Administration.
Council Meeting Divisions, recorded in the Public Minutes, clearly evidence the consistent support of Councillors Ford, Lord, Bills and Monceaux of Bagster, over a significant period of time. There is only one word that I can use to describe this behaviour – shameful!
(Emphasis in original)
The last word of the email ‘shameful’ echoes the phrase hoised in Mr Cooper’s Saturday email: ‘hang their heads in shame’.
Mr Cooper’s response to Mayor Parkin was received by Mr Cant, who was on holiday in Bali, at 6.19 pm local time.[1] He responded on that same night, probably about an hour later (Mr Cant’s Sunday email). Mr Cant assured Mr Cooper that he stood ‘behind every one of [his] words 100 %’. Mr Cant wrote in his email that he had become emotional when he read the report because ‘I (we) was/were finally vindicated’. He continued:
I did not realise until now, how much this whole situation has affected me personally. I
I’m glad the truth is out and I look forward to the next channel 7 ‘expose’.
[1] The time in Bali is 2 hours 30 minutes behind Adelaide time.
Mr Cant testified that he sent his email as a show of support for Mr Cooper. Ms Lemon testified that she sympathised with Mr Cooper and that, in her opinion, his email was not antithetical to the relationship of mutual respect required between the Council and its senior executives.
Ms Lemon testified that she could understand why Burnside’s senior executives had engaged in the round of emails over that weekend.
Ms Reynolds, who was at that time Burnside’s group manager of finance and governance, could not remember if a copy of Mr Cooper’s email was sent to her, but she became aware of its contents. Ms Reynolds testified that she discussed it with Mr Cooper but that she did not discuss with him the disciplinary action which Mr Deb later initiated.
On Monday, 8 October 2018 at 7.41 am, Mr Deb sent an email to Mr Cant and Mr Cooper saying:
Wow, you’ve both set the cat amongst the pigeons.
I clearly cannot say anything but thank you both for saying what I cannot.
You’ll both receive your DCM letters during the week.
It was common ground in the evidence that DCM is an acronym for ‘Don’t Come in on Monday’ and was occasionally used jokingly by Mr Deb and the executive team.
Mr Deb gave evidence that he sent that email in an attempt to acknowledge and sympathise with the frustration of Mr Cooper and Mr Cant but at the same time to indicate to them that there would be consequences. He explained that he used the acronym ‘DCM’ in order not to unduly worry them. Mr Deb testified:
A.I had a very familiar relationship with both Mr Cant and Mr Cooper, so I recognised the severity of what they had done but I thought I’d make somewhat light of it in a way that I would normally communicate with them.
…
Q.Just coming back to your email of the 8th at p 549 tab 29, you say ‘Wow, you both let the cat amongst the pigeons’, so you realise that’s an acknowledgement by you that they were saying controversial things; that’s right, isn’t it.
A.Yes, it is.
Q.Then ‘I clearly cannot say anything but thankyou both for saying what I cannot’.
A.Yes.
Q.What was it that they were saying that you could not say.
A.What I couldn’t say was the direct criticism of the four [councillors] who voted against any matter relating to former Councillor Bagster.
Q.Why not.
A.It wasn’t appropriate for me to criticise elected members but they had said it and I sympathised with their view at the time.
Q.So you understood when you wrote your email of 8 October that what they were doing was criticising elected members.
A.Yes.
Q.More than that, you understood that it would be inappropriate for you to do so.
A.Yes.
Q.Wasn’t it even more inappropriate for your subordinates to do so.
A.Equally so.
Q.But you didn’t tell them that, did you.
A.Not in so many words, no.
Q.Not at all. You read what they put out and you endorsed it. ‘Thankyou for both saying what I cannot’, that’s what happened; wasn’t it.
A.Yes.
Q.You thanked them.
A.I did.
HIS HONOUR
Q.Do you understand why Mr Swan is putting to you that you endorsed it. I think it’s this; by saying ‘Thankyou for saying something that I cannot’, some people might say that implied in that is saying to them that they can. ‘I, Paul Deb, can’t but you can and thankyou for doing so’, is that what you intended to write or did you think that someone might take it in that way.
A.No, I didn’t think that. What I was expressing to Mr Cooper and Mr Cant was simply that they had said it, I had no control over what they had said. Had they sought my advice prior to sending those emails, I would have said ‘Don’t’. So I would not have encouraged them to send an email critical of elected members to elected members. It was only as a consequence of receiving them after the event that I’ve simply said ‘You’ve said it, I agree with you but there are going to be consequences’.
Q.You said that it was not appropriate, why wasn’t it appropriate.
A.It’s not appropriate to be critical of elected members.
Q.But who says. Is that just something out of your own head or do we find that somewhere else.
A.No, that’s included in contracts of employment, it’s included in the protocol that council has about relationships between elected members and staff.
Q.So when you said that you realise that it was not appropriate, did you realise at the time that it was also prohibited or at least not consistent with the code of conduct, the employment contract and anything else.
A.Yes.
XXN
Q.Mr Spearman did ask you for your advice and you gave it, namely to go ahead; that’s right, isn’t it.
A.Yes, that is correct.
Q.That’s what you would have done if Mr Cant and Mr Cooper asked for your advice as well; isn’t it.
A.No, Mr Spearman’s email was sent to internal staff whereas Mr Cant and Mr Cooper’s email was directed to elected members, senior staff and a journalist.
Q.So it’s alright to criticise them around the ranks but don’t let them know you’ve done it, is that your position.
A.No, my position is that Mr Spearman’s email was simply – yes, he was critical of elected members but also the leadership group had been exposed to the behaviours of some of the elected members and it was simply a recognition that we all had to deal with the behaviours and we were rallying around each other. In hindsight I probably would - I would have edited the document more thoroughly.

Mr Deb’s explanation for not counselling Mr Spearman against sending his letter, even though it contravened the Code of Conduct because the leadership group were rallying behind each other, is implausible. The bullying had ended and the executives had been publicly vindicated. Supporting each other through the post-traumatic period did not require criticism of other councillors for how they had discharged their duties in respect of that issue. Nor did it excuse Burnside’s staff from their obligations under the Code of Conduct.
Mr Cant testified that he understood the term ‘DCM’ to have been used flippantly and did not expect consequences, even though he appreciated by then that his email was inappropriate. Ms Lemon saw nothing wrong with Mr Deb’s email, which she characterised as a private email between staff.
I accept that Messrs Deb, Cooper, Cant, and Spearman suffered much stress and anxiety as a result of Mr Bagster’s bullying and that they were relieved by the Ombudsman’s vindication of their positions. That they should share their relief between themselves is understandable. However, Mr Cooper and Mr Cant were also emboldened by the Ombudsman’s report to take the fight up to the councillors who had sided with Mr Bagster. Mr Deb knew by 5.09 pm on Sunday that Mr Spearman proposed to circulate a highly critical letter of councillors to his colleagues. Mr Deb’s failure to caution Mr Spearman against doing so was conscious and deliberate, albeit influenced by what he had suffered. He did not caution Mr Spearman, as Mr Cooper had, to sleep on it. His correction of a minor typographical error contrasts starkly with his failure to address the substantive issue of the appropriateness of the letter. Mr Deb’s duty was to quickly put an end to the chorus of criticism of councillors which had commenced with Mr Cooper’s Saturday email. He failed to do so. Deb’s explanation in the transcript of his evidence set out in [62] above that neither Mr Cooper nor Mr Cant sought his advice misses the point that his duty to act arose when he saw Mr Cooper’s Saturday email.
Mr Deb’s email to Mr Cooper and Mr Cant on Monday morning thanking them for saying what he could not, shows that the reason for his inaction was that he supported the publication of their criticisms of councillors. It is significant that Mr Deb did not take even a preliminary step towards counselling or sanctioning Mr Cant and Mr Cooper before receiving Councillor Monceaux’s email on Tuesday morning.
I do not accept that Mr Deb’s reference to DCM letters was intended to convey that there would be disciplinary consequences for their conduct. I find that it was a jocular use of the acronym in accordance with the workplace practice. Mr Deb’s supportive email to Mr Spearman, and his failure to caution Mr Cooper and Mr Spearman against disseminating their criticisms of some councillors, show at best, that he did not think that they had done anything wrong, or inconsistent with their employment duties. At worst, it shows that he was happy to tacitly support or accept misconduct of that kind.
On Tuesday, 9 October 2018 at 11.14 am, Councillor Monceaux sent an email to Mr Deb referring to Mr Cooper’s and Mr Cant’s Sunday emails. She complained that Mr Cooper and Mr Cant had misrepresented the decisions of the four councillors to whom Mr Cooper had referred. She complained that the opinions they expressed were ‘unwarranted, unprofessional and potentially defamatory’. The email concluded:
As CEO you are responsible for the management of the staff. The system of democratic local government has been attacked. You have had a day to act in this serious matter and have been silent. It is your responsibility to take appropriate action to the satisfaction of the four misrepresented and insulted elected members and the law.
I insist that you take action in relation to this serious misconduct.
The investigation
On Thursday, 11 October 2018, Mr Deb wrote to Ms Perry and Ms Smith, the principal solicitors at EMA Legal (EMA), a specialist employment law firm. The letter sought to engage EMA to undertake a review and assessment of an elected member’s complaint against two general managers. Mr Deb attached the Ombudsman’s report, the emails of Mayor Parkins, Mr Cooper, and Mr Cant, and Councillor Monceaux’s complaint.
Mr Deb also attached Burnside’s Employee Conduct Protocol and informed EMA that he believed that the conduct of Mr Cooper and Mr Cant ‘is likely caught by the Employee Conduct Protocol’. Mr Deb informed EMA that he had put the complaint to Mr Cooper and Mr Cant ‘for information purposes only’.
Mr Deb’s instructions to EMA were:
I request that you, as an independent party, conduct an appropriate investigation and review and furnish me as CEO with those findings which include any recommendations and to ensure that a process is completed which demonstrates objective and responsible staff management in accordance with acceptable behavioural standards; fulfilling my obligations as the CEO.
Once engaged I will advise both Martin and Barry of this next step and that you will need to put the complaint to each of them for consideration and response.
The plain meaning of those instructions is that the findings of the review and recommendations would be considered by Mr Deb before he determined the appropriate disciplinary action in discharge of his responsibilities as the Chief Executive. The letter did not purport to be a delegation by Mr Deb of his disciplinary powers.
On 13 November 2018 Mr Krips, a senior associate with EMA, provided his report to Mr Deb. His report noted that the Employee Conduct Protocol was adopted in April 2018. Mr Krips stated that the Employee Conduct Protocol was enacted to replace the former provisions of the statutory Code of Conduct for Council Employees which ceased to operate on 2 April 2018. Mr Krips reported that he had interviewed only Mr Cooper, Mr Cant, and Councillor Monceaux. Mr Krips’ conclusion was that Mr Cooper’s Sunday email ‘reflected the very intense and overlapping emotions brought on by the conclusion of the Ombudsman’s investigation into Mr Bagster’s conduct’. His report noted that Mr Cant had experienced symptoms which were consistent with a serious deterioration in his health and wellbeing as a result of Mr Bagster’s behaviour. It referred to Mr Cant’s explanation that he hit ‘reply all’ to Mr Cooper’s email as a way of affirming his support for Mr Cooper after having witnessed the effects of Mr Bagster’s conduct on Mr Cooper. Mr Krips recorded that Mr Cant had acknowledged that he should not have expressed his views in the way in which he did.
The report concluded that Messrs Cooper and Cant had failed to discharge their duties in a professional manner in that:
·in sending the subject emails, they did not act in a reasonable, just, respectful and non-discriminatory way when dealing with all people;
·they failed to comply with all relevant council policies, codes and resolutions;
·even though the emails were not completely public facing they did amount to public criticism of a personal nature of Councillors because they were sent to a sufficiently wide group of people; and
·they failed to allow Councillor Monceaux procedural fairness.
However, Mr Krips concluded that there was no ‘misconduct’ because the sending of the emails was neither negligent nor deliberate. He concluded that the context mitigated the breaches and placed the conduct in the mid-range of seriousness, and that the conduct fell significantly short of warranting termination of employment. Mr Krips recommended that the report be shared with the parties involved, and that Mr Deb consider calling for any further information as may, in his judgment, be required before making final decisions and determining the matter.
Two important matters should be noted. First it is plain that Mr Krips did not understand Mr Deb to have delegated to him any powers to administer disciplinary sanctions. Secondly, the report makes no reference to the fact that the emails were sent to Mr Deb, nor to the ‘DCM’ email which he sent on Monday.
On 13 November 2018, Mr Cooper and Mr Cant both signed and sent a letter of apology to Councillors Bills, Ford, Lord and then Mayor-Elect Monceaux. They referred to the emails they had sent and to the investigations into their conduct. The tone of their letter was very conciliatory:
We are now on the cusp of a new era for the City of Burnside and Barry and I would like to sincerely apologise for publicly criticising you in contravention of the City of Burnside Employee Conduct Protocol.
We would also like to take this opportunity to offer our continued dedication to the City of Burnside and respectful support for the Elected Body and look forward to continuing to professionally lead the Administration to serve its Elected Members and the Community into the future.
As a gesture of goodwill, Barry and I hope that we can draw a line under this matter and move forward in the spirit of co-operation.
On the same day Mr Cooper emailed Mayor-Elect Monceaux to congratulate her on her election as Mayor.
On the morning of Wednesday, 14 November 2018 at 10.01 am and 10.07 am Mr Deb emailed Mr Cant and Mr Cooper, respectively, informing them that Mr Dabrowski would provide a copy of the EMA report which he did shortly thereafter. Mr Deb continued:
Once I have had an opportunity to review it fully, I will consider calling for any additional information as may be required before final decisions are made, determining the matter. After that, I will contact you to advise what the final decision(s) are.
It is tolerably clear from Mr Deb’s email that he proposed to make the final decision. Certainly, Mr Deb did not suggest that he had delegated, or would delegate, his disciplinary powers to anyone else. However, Mr Deb had decided to obtain further legal advice from Kelledy Jones Lawyers.
After receiving the EMA report from Mr Deb, Mr Cant responded by email accepting that it was balanced and reasonable. He acknowledged that ‘the manner in which [he] distributed the email was not appropriate’ but said that he acted on the spur of the moment. He accepted ‘full responsibility’ for his actions but maintained that his main purpose was to support Mr Cooper by sending his reply to all who had received Mr Cooper’s email. He insisted that he did not intend to ‘target’ others. He referred to the earlier letter of apology he and Mr Cooper had sent.
Mr Cooper asked for an opportunity to make further submissions.
In an email to Mr Deb on 15 November 2018, Mr Kelledy expressed the opinion that:
In my view it is disappointing that, having made the findings set out and provided commentary around disciplinary action, the Report does not make any recommendations about an appropriate level of action. In taking this approach it leaves you in an extremely difficult position.
It is difficult to understand that criticism of EMA when Mr Deb had not delegated his disciplinary powers to Mr Krips. Mr Krips’ report summarised the information he had obtained and gave advice on the relative seriousness of the conduct. Going further and recommending the disciplinary measures which should be taken may have compromised the proper exercise by Mr Deb of his powers. It is also difficult to see why leaving the disciplinary response to Mr Deb placed him ‘in an extremely difficult position’ other than because Mr Deb was conflicted by the emails he had sent and by his failure to counsel Mr Cooper and Mr Spearman and all of the recipients of their emails against making intemperate criticisms of councillors. However, it is not clear that Mr Kelledy knew anything of those matters at that time. Mr Kelledy advised Mr Deb to provide Mr Krips’ report to ‘independent Counsel for advice on appropriate remediation and disciplinary action’. That advice fell short of recommending a delegation. Mr Kelledy’s letter continued:
… In this manner, no person can consider you to have any level of bias either in favour of or contrary to the interests of the complainant or the affected senior council officers.
In respect of that statement, I do no more than note that if a fair minded observer apprehends that a decision maker might not bring an impartial mind to a matter, the decision is not immune from challenge because there happens to be independent advice from a legal practitioner, selected by the decision maker, supporting the decision which is ultimately made. Moreover, that course rendered any decision made by Mr Deb vulnerable to yet another criticism that he was influenced by an opinion, on which, Messrs Cant and Cooper did not have an opportunity to comment.
Mr Kelledy recommended that Mr Deb engage a barrister, Mr Manuel, with Kelledy Jones acting as the ‘postbox’. Mr Kelledy briefed Mr Manuel by email dated 15 November 2018. His letter attached Mr Kelledy’s advice to Mr Deb and the EMA report.
On the afternoon of 16 November 2018, Mr Deb informed Mr Cooper and Mr Cant by email that he would accept any supplementary submissions they might wish to provide by 9.00 am on Monday, 19 November 2018.
Mr Cooper emailed his submissions to Mr Deb at 6.31 am on Monday, 19 November 2018. Mr Deb forwarded them to Mr Kelledy 15 minutes later. Mr Cant provided submissions later that morning and they were sent to Mr Kelledy at 9.21 am. Mr Kelledy sent the submissions to Mr Manuel on the same day.
Mr Cooper’s response was headed ‘Re Report of Investigation – Confidential’. Under a subheading ‘Report Errors and Omissions’, Mr Cooper complained that Mr Krips’ report did not refer to Mr Deb’s ‘DCM’ email of Monday, 8 October 2018. In particular, Mr Cooper drew attention to the gratitude expressed by Mr Deb to Mr Cant and Mr Cooper ‘for saying what I cannot’. Mr Cooper submitted that email together with other documents to which he referred ‘are relevant considerations for what I wrote, albeit not necessarily the method in which it was communicated’.
On 20 November 2018 Mr Deb responded to Mr Cooper’s submissions by email. He first sympathised with Mr Cooper’s frustration at ‘the length of time’ taken in the investigation. Mr Deb then informed Mr Cooper that he had engaged a senior barrister to review the process and ‘to make appropriate recommendations’. I observe, yet again, that Mr Deb himself did not suggest in that communication that he had delegated his disciplinary powers in respect of the complaints against Mr Cant and Mr Cooper. Mr Deb informed Mr Cooper that the barrister had been provided with a copy of the report of the investigation conducted by EMA and was in the process of preparing a report. He noted that the barrister had expressed concern at the tone of Mr Cooper’s response and his reluctance to take personal responsibility for his conduct. He relayed to Mr Cooper the following questions which the barrister had posed:
1.Do you accept personal responsibility for sending the emails now disclosed?
2.Do you accept that the emails were inappropriate?
3.Why did you forward the email to other employees of the Council and not include me? Further, did you consider this to be appropriate conduct?
4.Why did you send the email to Crs Monceaux and Ford on 29 August 2017 and not include me?
5.Having regard to the fact that there was obviously a detailed investigation being undertaken, why did you not disclose the broader dissemination of the emails?
In an indication that relations between Mr Deb and Mr Cooper had become strained, Mr Deb proffered Mr Cooper the following advice:
I suggest that you take some care in your responses. It is arguable that the information known to the barrister already amounts to serious misconduct. This finding may be exacerbated by the issues that are raised above.
Mr Cooper was given until 5.00 pm on Thursday, 29 November 2018 to respond and he did so. As to the second question he accepted that the emails were inappropriate. However, Mr Cooper went on to note that when he sent his Sunday email, he was aware that Mr Deb had approved the email prepared by Mr Spearman which had expressed similar sentiments. If that is right, then he must have sent his Sunday email within a minute of seeing Mr Deb’s response to Mr Spearman. However, it is not controversial, that at the very least, when Mr Cooper sent the Sunday email he knew that Mr Deb had not counselled Mr Spearman against sending his letter and had not counselled Mr Cooper over his Saturday email. Mr Cooper mentioned again the ‘DCM’ email of Monday, 8 October 2018 in which Mr Deb had expressed his gratitude.
Plainly enough the submissions made by Mr Cooper squarely raised as an issue whether Mr Deb could fairly sit in judgment on Mr Cooper’s conduct.
Mr Deb was questioned on whether he and Mr Manuel considered the implications of the submissions on whether Mr Deb should recuse himself:
HIS HONOUR
Q.Did you have any discussions with Mr Manuel about the crux or one of the main points Mr Cooper was making which was what he called you ‘condoning’ the letter.
A.I don’t recall having a conversation with Mr Manuel regarding that.
…
Q.I will ask you more directly, did Mr Manuel ask you ‘What’s this about you condoning it’.
A.In terms of Mr Cooper’s original email?
Q.In terms of Mr Cooper’s complaint which goes back to the emails back on 7 or 8 October.
A.I don’t recall having that conversation with Mr Manuel.
Q.The other question I have is this; did you think that you were making this decision with the advice of Mr Manuel, or did you think that you delegated the decision about how to discipline Mr Cooper and Mr Manuel.
A.I was of the belief that I had delegated that decision.
I return to the implausibility of Mr Deb’s belief that he had delegated his decision below. However, whether he had or not, it is difficult to see why Mr Cooper’s submissions did not feature in Mr Manuel’s written advice or in taking instructions from Mr Deb.
Mr Manuel’s report was provided to Mr Deb by Mr Kelledy on 3 December 2018. Under a heading ‘Recommendation’ Mr Manuel expressed the view that Mr Cooper’s conduct amounted to serious misconduct but that it was not ‘serious and wilful misconduct’ because the emails were a ‘release of nervous tension’ and not malicious. As to disciplinary sanctions Mr Manuel noted that Mr Cooper had acknowledged his behaviour but that he should also make an unqualified apology. He advised that Mr Deb issue Mr Cooper with a first and final warning which would expire after 12 months.
Mr Manuel provided two draft warnings headed ‘Final Warning’ to be delivered to both Mr Cant and Mr Cooper. The draft letter to Mr Cooper was more extensive noting Mr Deb’s disappointment in the manner in which Mr Cooper had responded and referring to his ‘unnecessarily combative and aggressive’ approach. Mr Deb met with Mr Cooper on 6 December 2018 to advise him that he had determined, in accordance with the recommendation he had received from the barrister, to issue Mr Cooper with a final warning. A transcript of their discussion was attached to Mr Cooper’s grievance letter to which I refer below. Mr Cooper expressed concern that further advice was sought from another legal practitioner at all, the anonymity of that barrister, and the uncertainty as to the material which was provided to that barrister. The letter which Mr Deb sent was a slightly modified version of the letter recommended by Mr Manuel. It read:
Final Warning
I refer to the issue in respect of your communications with certain members of the Council.
Although I consider that your conduct amounted to serious misconduct, it is my view that in all of the circumstances, it would be inappropriate to terminate your employment. In reaching my conclusion as to serious misconduct, I have had particular regard to the following matters:
-you are a senior manager with extensive experience and should, therefore, have the necessary judgement and skills to deal with difficult matters;
-in addition, you were aware of the Council document, “The Protocol” and the need for compliance with the terms of this document;
-the email that you sent to elected members was inappropriate and unnecessary and caused legitimate offence to members of the Council. In this regard, I note that you have acknowledged that the email was inappropriate;
-further, the email contained personal criticisms of members of the Council that were not appropriate to be expressed in a public forum; and
-you broadly communicated the email to other senior managers and more junior members of staff.
I acknowledge that you have been placed under significant stress as a result of the internal disputes within Council and as a senior manager, you have been subjected to particular focus in this regard.
You remain a valued member of the organisation and I hope that this matter can be put behind us. It is my expectation that there will be no need for any further action in the future.
As discussed, I have determined on a course of action. In reaching my decision, I have had regard to all of the material that you have provided to me. This includes the information provided as a consequence of your specific request for an opportunity to make further submissions. I do not propose to seek or consider any further material.
My decision is as follows:
-this correspondence constitutes a final warning, which will expire after 12 months from the date of this letter; and
-I require you to provide Mayor Monceaux with a written apology in the manner discussed at our meeting on 6 December 2018.
This letter will act as the final warning.
If an apology is not provided in the manner discussed, I will revisit my decision and the matter will be reviewed having regard to your subsequent conduct.

Mr Cooper responded on 11 January 2019 disputing that his conduct was serious misconduct. Mr Cooper again referred to Mr Deb’s ‘DCM’ email and set it out in full. He asked that the warning be removed.
Mr Deb sought further advice from Mr Kelledy concerning Mr Cooper’s response. After receiving that advice, Mr Deb wrote to Mr Cooper on 29 January 2019. He acknowledged that Mr Cooper felt aggrieved. He informed Mr Cooper that he had obtained further advice and that he remained ‘comfortable with [his] position’. Nonetheless, Mr Deb’s letter was largely conciliatory expressing his high regard for Mr Cooper. Mr Deb emphasised that the warning would become ‘stale’ after 12 months. He assured Mr Cooper that it had been placed on his personal file in a confidential manner with restricted access.
Mr Cooper was not appeased. On 29 January 2019 he made a complaint against Mr Deb to Mayor Monceaux. One part of the complaint was headed ‘Criticism of Elected Members’. Under that heading Mr Cooper referred to the email he had sent which was critical of Mayor Monceaux and other councillors. He continued ‘You might not be aware that on 8 October 2018, Mr Deb sent an email to me, approving of my email and thanking me for it’. He also referred to Mr Deb’s approval of Mr Spearman’s email setting out that Mr Spearman had written:
All of the elected members were witness to the same correspondence as the Ombudsman, and I find it reprehensible that the decisions relating to the protection of staff were not unanimous. Some even used this to their political advantage.
Mr Cooper’s complaint raised a number of matters. The first was that Mr Deb’s psychological health interfered with his capacity to perform his duties. Secondly, was his unexplained absences from work, and the responsibility those absences placed on others or the responsibility which others had to assume because of his absences. Thirdly, Mr Cooper raised the inaccuracy of Mr Deb’s leave record and his failures to attend meetings with external agencies. Fourthly, Mr Cooper complained that Mr Deb often smelt of alcohol at work. Mr Cooper also raised:
·inappropriate behaviour at a social function; and
·a suggestion made by Mr Deb that he might have to ‘lose some credit card receipts’ after a report that his use of the Council credit card was inappropriate.
Mr Cooper set out as an attachment the comments which allegedly had been made by Mr Deb at the executive council meeting of 28 November 2018. That attachment included the allegations that Mr Deb had said that he could ‘wrap Councillor Julian Carbone around his little finger’ and that Councillor Henschke was a ‘dumb fuck’.
On 31 January 2019 Mr Cooper sent a formal grievance to Mr Spearman about the disciplinary proceedings conducted by Mr Deb. He complained that he had not been given procedural fairness. He recorded his concern that Mr Deb had been ‘shopping around’ for a determination that suited his needs in obtaining the further advice after receiving the EMA Legal report. He stated:
I believe Mr Deb’s actions and involvement in the circumstances leading up to and immediately following my original email communication on 8 December 2017 (the subject of the complaint) caused him to have a conflict of interest or certainly the potential for a perceived conflict of interest and he therefore should not have conducted this process. I was never given the opportunity to request an alternate investigator in accordance with section 17.1.2 of the Protocol.
(Underlining in original)
Mismanagement of Mr Deb’s conflict
It is convenient at this juncture to set out my findings on whether Mr Deb had a conflict of interest, whether he declared it, and whether he delegated his powers in respect of the disciplinary investigation of Messrs Cooper and Cant.
Section 120 of the Local Government Act enacts the following offence punishable by a fine:
120 – Conflict of interest
(1) The chief executive officer of a council who has an interest in a matter in relation to which he or she is required or authorised to act in the course of official duties—
(a)must disclose the interest to the council; and
(b)must not, unless the council otherwise determines during a council meeting that is open to the public, act in relation to the matter.
…
(3) It is a defence to a charge for an offence against subsection (1) or (2) to prove that the defendant was, at the time of the alleged offence, unaware of the interest.
Section 120(5) of the Local Government Act defines a conflict of interest for the purposes of the offence as follows:
(5)An employee has an interest in a matter if the employee, or a person with whom the employee is closely associated, would, if the employee acted in a particular manner in relation to the matter, receive or have a reasonable expectation of receiving a direct or indirect pecuniary benefit or a non‑pecuniary benefit or suffer or have a reasonable expectation of suffering a direct or indirect pecuniary detriment or a non-pecuniary detriment.
Mr Deb’s failure to counsel Mr Cooper and Mr Spearman against distributing emails critical of councillors on Saturday 6 and Sunday 7 October 2018, the compliment he gave Mr Spearman for his letter, and the gratitude he expressed to Mr Cooper and Mr Cant on Monday, 8 October 2018 were relevant and weighty considerations in the conduct of the disciplinary proceedings against Messrs Cooper and Cant. However, if Mr Deb were to inform Mayor Monceaux that he was bound to recuse himself, or if, in his reasons for imposing any sanction, he were to disclose those circumstances, he would thereby expose himself to the risk of a disciplinary investigation. It was in Mr Deb’s personal interest to avoid a disciplinary investigation of himself, or even if there were no such risk, to avoid a deterioration of his relationship with Mayor Monceaux. Mr Deb could not properly weigh those of his actions which mitigated Mr Cooper’s conduct, independently of his concern to protect his own interest. Pursuant to s 120(5) of the Local Government Act and under the general law, he was burdened by a conflict of interest.
Mr Deb’s statutory powers to delegate his functions were sourced in s 101 of the Local Government Act which relevantly provides:
101—Delegation by chief executive officer
(1) The chief executive officer may delegate (or subdelegate) a power or function vested or conferred in or on the chief executive officer under this Act.
(2)A delegation may be made—
(a)to an employee of the council, or to the employee for the time being occupying a particular office or position; or
(b)to a committee comprising employees of the council; or
(c)to an authorised person.
(3)A delegation—
(a)is subject to conditions and limitations determined by the chief executive officer; and
(b)may constitute the further delegation of a power or function delegated by the council to the chief executive officer, unless the council has directed otherwise; and
(c)is revocable at will and does not prevent the chief executive office from acting personally in a matter.
…
An authorised person is a person appointed by a council pursuant to s 260 of the Local Government Act. The powers conferred on an authorised person by s 261 of that Act suggest that the primary purpose of an appointment of an authorised person contemplated by the Local Government Act is the appointment of the person to enforce Local Government by-laws but there is no reason why the person could not be appointed to investigate a disciplinary matter and be delegated disciplinary powers.
In his role as Burnside’s Chief Executive Mr Deb gave evidence that he had never before disciplined a senior executive. He explained that he sought further advice from Mr Kelledy because the EMA advice had left him to choose between alternative disciplinary options:
A.Going back to what I said earlier, given the relationship that I had with Mr Cooper and Mr Cant and the seriousness of the complaint made by Councillor Monceaux, I needed there to be an objective investigation rather than one if it was overly skewed to significant punitive measure, Mr Cant and Mr Cooper may say ‘You are being too harsh, you are being supportive of Councillor Monceaux’s position’ and, vice versa, I suggested to Mr Cooper and Mr Cant that the lesser of the punitive measures, Councillor Monceaux may say ‘They are your friends so you have taken the easy approach’. So I wanted someone to give me some independent advice that could be more definitive rather than me having to be put in a position where I was being seen to take sides.
Mr Deb’s evidence continued:
Q.When you received that advice, did you regard that you had choices as to what sanctions to impose.
A.Ultimately, I could have made my own choices but I chose to take the recommendation of Mr Manuel.
Q.Just exploring that; first, why do you say, ultimately, you could have made your own choices? Why do you say that.
A.As the chief executive officer with responsibility for staff, no-one else could actually make a decision in terms of the investigation of those two staff members. It wasn’t within the remit of the council. So, ultimately, I was responsible for that performance management. What I sought to do was distance myself from the investigation by making it legal. So, at any point in time, I could have but I chose not to because I wanted to be completely transparent and objective.
Mr Deb’s evidence so far suggests that even though he intended to personally exercise his disciplinary powers he wanted a clear recommendation as to the appropriate sanction to shield him from criticism from Mr Cooper or Mr Cant on the one hand or Major Monceaux on the other. The following evidence confirms that understanding of his testimony:
A.At the time, my view was that my relationship with both Mr Cooper and Mr Cant was as friends, as I’ve mentioned previously, and because the complaint was raised by Councillor Monceaux, I believed that it would be best to have it investigated independently.
Q.You could, of course, have delegated the decision making to someone else, couldn’t you.
A.No, I couldn’t because -
Q.Why not.
A.Well, the person who would normally deal with these types of matters was Mr Spearman and Mr Spearman was a subordinate of Mr Cooper and I didn’t contemplate delegating it to a subordinate to undertake an investigation of their superior.
However, the position is confused by the following evidence:
HIS HONOUR
Q.Are there protocols or rules as to delegations for particular matters and who they might be delegated to, particularly in a disciplinary context.
A.I don’t recall there being specific delegations or documents relating to those types of delegations.
Q.Did you think you could only delegate it to someone who was a council employee. Did it occur to you - and I don’t know if this is right or not - that you might delegate to someone who was not a council employee.
A.That’s in fact what I did by sending it to EMA Legal and having thought about it in hindsight, there could have been a possibility of delegating it - not delegating it but requesting it be undertaken - the investigation - by another chief executive officer of another council, but that in itself is no different to asking an external legal firm.
Q.When a chief executive officer or any senior executive engages a lawyer, it’s usually to get advice, and you might be asked questions about the way in which you’ve engaged these lawyers as to whether you were getting advice or delegating it and I thought we went through this yesterday -
A.Yes.
Q.- and you accepted that it hadn’t been delegated because it was still open to you to make a decision no matter what had been recommended. Did I misunderstand your evidence yesterday.
A.No, you didn’t. Ultimately, it’s the chief executive’s - when that person is dealing with their immediate subordinates - responsibility for making the decision.
Q.We might be a bit at cross-purposes then. Let’s assume you were dealing with the disciplinary action of someone who reported to Mr Spearman. If you delegated to Mr Spearman the disciplinary role, would he then make the decision or would you regard yourself as still having the power to make a different decision to that -
A.No. Mr Spearman would have made the decision if he was dealing with one of his subordinates.
Mr Deb was then taken to the statutory power to delegate his functions to any person including a person other than a Burnside employee:
Q.I didn’t expect you might, but you know there is a provision in the Local Government Act whereby effectively anyone can be appointed by an instrument in writing by the council as an authorised person.
A.Yes.
Q.So, it didn’t have to be delegated to a subordinate of Mr Cooper. It could be delegated to an outside person. That’s right, isn’t it.
A.An authorised person, yes.
Q.Yes, an authorised person.
A.Yes.
Q.And given your difficulty in dealing with the matter yourself and your diffidence about referring it to various people, do you agree it was appropriate that in fact you delegate the matter.
A.Yes.
Q.But you didn’t do that.
A.No.
Q.I suggest to you that the particular reason you should have delegated the complaint against Mr Cooper was because you had a conflict of interest in respect of it. That’s right, isn’t it.
A.I didn’t believe that I had a conflict of interest at that point in time.
Q.You changed your mind later, did you.
A.I considered that the best way to deal with the matter, and I take on board what you said about delegation, I didn’t turn my mind to that - I thought the best way of dealing with the matter was to have an external legal provider investigate it independently, whether I had a conflict, perceived conflict or otherwise.
Q.Do you agree now, with the benefit of hindsight, that you should have delegated the complaint against Mr Cooper.
A.It also depends on the person who I would be delegating to, whether they had the capacity to undertake an investigation, but if there was an authorised officer who had the capacity of undertaking an investigation of that nature then, yes.
Q.Or an authorised person such as one of the lawyers you were referring it to and seemed to think you were delegating it to initially.
A.Yes. Yes.
HIS HONOUR
Q.Authorised officers, what are they usually appointed to do.
A.To undertake on-site inspections, particularly development and planning officers are authorised, council rangers, traffic inspectors are authorised typically.
Q.Is that what you had in mind when you said whether you could have delegated it would depend on whether there was an authorised officer who had the skills, capacity, time to do it.
A.That’s correct.
Q.Of course, it was always open to you to go to the council and ask them to appoint an authorised officer who had the capacity and skills to do it.
A.Yes, it was.
Q.The lawyers weren’t authorised officers, were they.
A.No, they weren’t.
Q.Any of the lawyer’s law firms you consulted.
A.No.
Q.Mr Manuel wasn’t.
A.No.
Q.So, if you had wanted to delegate your power to them, you would have to go to the council and ask them to make them an authorised officer.
A.That’s correct, yes.
Q.Would that have required you to tell them why you wanted to delegate it.
A.Yes, it would.
Mr Deb was then questioned on why it might have been appropriate to delegate his functions. He claimed that it had only occurred to him that his email exchange with Mr Cooper and Mr Spearman was a reason to delegate his disciplinary powers in the course of his cross-examination.
Q.There were a number of reasons you could have given to council about why you thought it was appropriate to delegate it, weren’t there.
A.Yes.
Q.One is what you’ve said about your working relationship.
A.Yes.
Q.No-one can criticise you, you would expect, for being friends with people.
A.Yes.
Q.The other was that you’d written an email in support of what had been said.
A.I didn’t turn my mind to that at that point in time as a reason for seeking someone other than me to undertake the investigation.
Q.But, in any event, given the concern that Councillor Monceaux predictably demonstrated -
A.Yes.
Q.- and your concern about the continuing smooth workings of council, you wouldn’t have expected there would have been any problem in having the council authorise somebody to be the authorised person to investigate it, would you.
A.No, but I didn’t turn my mind to that at that point in time.
Q.When did you turn your mind to that.
A.Only since you’ve raised it today.
I am satisfied that Mr Deb appreciated that if his role in the exchange of emails were to be disclosed to Mayor Monceaux he would be criticised and probably sanctioned. I am satisfied that he neither recused himself and delegated his powers nor disclosed his conflict in order to avoid those consequences. If it did not occur to him that he was in a position of conflict it can only be because he had a very poor understanding of the concept.
The Council sought advice from HWL Ebsworth on Mr Cooper’s grievance complaint. On 22 February 2019 HWL Ebsworth wrote to Mr Deb in his capacity as Chief Executive of Burnside, informing him that the Council had instructed it to obtain from him a copy of any written legal advice and a summary of any verbal legal advice in connection with the complaints made by Councillors Monceaux, Ford, Lord or Bills against Mr Cooper.
On 1 March 2019 a legal practitioner, Mr Griffin, wrote to HWL Ebsworth informing them that he acted for Burnside on instructions from Mr Deb. Mr Griffin claimed that the Council resolution was ‘ultra vires’. He contended that ‘Mr Deb should not comply with the resolution and therefore should not provide you with the requested documents and information’. He argued that Council’s elected members were not permitted to access information and documents pertaining to the complaint against Mr Cooper. It is not necessary to go through the detail of the arguments put by Mr Griffin. I simply record that his contention is plainly wrong. The conferral on the Chief Executive of a council of the responsibility for managing council staff by s 103 of the Local Government Act does not expressly or by necessary implication deny the council the right to review the way in which that responsibility is exercised. It would be a bizarre result if the democratically elected directing mind of a local government authority were not permitted to monitor how its Chief Executive managed disciplinary processes against its staff.
Section 99(1)(c) of the Local Government Act provides that it is the function of the Chief Executive to report to the council on the exercise of his or her powers and functions. The reports and advice of EMA and Mr Manuel were the property of the Council, not its Chief Executive. Section 97 of the Local Government Act empowers the Council to terminate the Chief Executive’s appointment for unsatisfactory performance. Those provisions are inconsistent with Mr Griffin’s contention. Not surprisingly, HWL Ebsworth took issue with that position and replied:
It may assist you to know that Council has been notified of a grievance against Mr Deb. The grievance is being handled pursuant to Council’s Grievance Resolution Protocol.

Ms Reynolds testified that she was embarrassed by the comments which she found to be both disrespectful and inappropriate. Neither she nor Mr Dabrowski remarked on what Mr Deb had said, but Mr Dabrowski gave her, what she described as, a ‘sheepish smile’. It was put to Ms Reynolds that Mr Deb had said no more than, ‘that’s not an image I want to see’. Ms Reynolds denied that suggestion and affirmed her account that Mr Deb had motioned this with his hands and had referred to Mayor Monceaux’s husband.
Mr Deb’s evidence was that he and Ms Reynolds were nearby to Mr Dabrowski where he was speaking on the telephone. After the call ended Mr Dabrowski related his conversation with Mayor Monceaux. Mr Deb testified that his only response was to say that it was not an image he wished to see. I note at this point that neither Ms Reynolds nor Mr Deb testified that Mr Dabrowski’s account of Mayor Monceaux’s explanation for not taking the call included any reference to drying herself.
Mr Dabrowski’s evidence was that he was near his desk between the executive offices when he saw Ms Reynolds and Mr Deb leave the executive meeting and move to the corridor. He told them that Mayor Monceaux had missed his telephone call and related his account of his conversation with Mayor Monceaux: that she had apologised and explained that she was drying herself after having showered and could not reach the phone. Mr Dabrowski then said to them ‘believe it or not, she was in the shower: that’s too much information’. According to Mr Dabrowski, Mr Deb agreed that it was too much information and said that he wondered if they would always get that much information. Mr Dabrowski’s evidence was that he or Mr Deb said ‘it is not an image that I want to see’. Mr Dabrowski denied that Mr Deb mentioned Mayor Monceaux’s husband.
In summary, on Mr Deb’s and Mr Dabrowski’s account, Mr Deb did little more than to repeat the effect of Mr Dabrowski’s comment: too much information/not an image I’d like to see. On neither of their accounts was Mayor Monceaux’s husband mentioned but Mr Dabrowski included in his account of the conversation that Mayor Monceaux had mentioned she was drying herself.
I find it improbable that Mayor Monceaux would have explained anything more to Mr Dabrowski other than that she was in the shower when she missed Mr Dabrowski’s call. It was not suggested that Mr Dabrowski and Mayor Monceaux shared a familiar or close relationship. I think it improbable that a female Mayor would give that level of detail to a male member of staff. In the absence of evidence from Mayor Monceaux, I cannot find that it was not said but that improbability does give me some reason to doubt Mr Dabrowski’s account of his conversation with Mr Deb and Ms Reynolds.
Neither Ms Reynolds nor Mr Deb testified that Mr Dabrowski made mention of the Mayor drying herself. If Mayor Monceaux had told Mr Dabrowski nothing more than that she was in the shower it is difficult to understand why Mr Deb and Mr Dabrowski thought that she had given too much information. It is not an uncommon occurrence to miss a call in those circumstances. Their accounts have the appearance of being crafted to stay as close, to and thereby explain, the substance of the conversation of which Ms Reynolds testified, without admitting that it was Mr Deb who conjured up the image of Mayor Monceaux’s husband towelling her dry. Be that as it may, again I found the testimony of Ms Reynolds credible and reliable. There is nothing about the conversation as related by Mr Deb and Mr Dabrowski which could have been misheard or misconstrued in a way which could explain Ms Reynolds’ recollection. I emphasise in this respect that Ms Reynolds’ account included seeing Mr Deb motion with his hands. I exclude deliberate fabrication by Ms Reynolds of her evidence because there is no motive for Ms Reynolds to do so. I accept the evidence of Ms Reynolds. I reject the evidence of Mr Deb and Mr Dabrowski on whether Mr Deb alluded to Mayor Monceaux being towel dried by her husband.
The Drop Box
As part of the ordinary processes following termination, the electronic files stored in Mr Deb’s Drop Box were reviewed. On that review personal photographs including intimate images of Mr Deb and his partner, who was also a Burnside employee, were found.
The images stored in Mr Deb’s Drop Box were received as Exhibit A2.
Mr Deb gave evidence that after he had established a Drop Box for his personal use, Burnside’s administrative staff suggested that he use the Council Drop Box which had the capacity to receive large Council documents. Those documents included Council agendas and the complex files sent to him in relation to meetings of the Brown Hill Keswick Creek Catchment Board which Mr Deb attended as Burnside’s Chief Executive.
Mr Deb testified that he was sent an email invitation to join the Council’s business Drop Box. In working his way through the electronic links he was offered a choice to merge his existing Drop Box with the new one. He chose to do so. It was his understanding that he could use the Council’s Drop Box for his personal items and as a post box to receive Council documents. Mr Deb created a personal documents folder in which his material was saved. He would delete the images from his phone once they were uploaded to the Drop Box. The photos were divided into subfolders.
Mr Spearman gave evidence that he installed the Drop Box app on the tablet provided to Mr Deb for work purposes in 2012. In September 2016, he facilitated the creation of the Burnside Council Drop Box and helped Mr Deb to join it. Neither Mr Spearman nor any other employees accessed Mr Deb’s Drop Box during his employment. It was disabled when Mr Deb’s employment was terminated.
On 24 August 2019, after the termination of his employment, Mr Deb wrote to Burnside’s solicitor, Ms Makris, informing her that he had used Council’s Drop Box account to store personal information, including photographs, music, and personal documents. He asked Ms Makris to arrange access to his account so that he could retrieve those documents.
Mr Spearman was asked to go through Mr Deb’s Drop Box to recover any intellectual property belonging to the Council. He saw the personal photographs stored on the Drop Box and was disturbed by the intimate photos of Mr Deb and his romantic partner.
Mr Deb believed that he alone had access to the Drop Box with his username and password. He did not turn his mind to the access which other Burnside employees might have. In his evidence, he agreed that, in hindsight, if he had turned his mind to it, he would have created a separate Drop Box for his personal photos.
He testified that at the time, he did not turn his mind to what might happen to those images if he were to leave his employment with Burnside:
At the time, I think I previously said that I didn’t turn my mind to those matters. At the time I agreed to accept the Council’s business dropbox account. I didn’t turn my mind, at that point in time, to the fact that I may not be in the organisation any more and how I would deal with that or how the Council would deal with that. I never contemplated that at all.
Mr Deb went on to explain that he did not foresee any necessity for any other Council employee to examine his Drop Box. He thought of it as no more than a letter box which he could access. Mr Deb believed that if he were to leave his employment, the Council need only block his access to the Drop Box because they would have had other copies of Council documents available to them. Despite Mr Deb’s experience as Burnside’s Chief Executive his view overlooks Burnside’s legitimate interest in ensuring that he did not retain or access documents which could only properly be used for Council purposes. Nor does his understanding address the logistics of how access to his personal material could be given to him without a review of the material.
Mr Deb accepted in his evidence that in acting on his request for access, it would be appropriate for Council’s IT employees to check to see what was in the Drop Box.
The dismissal
HWL Ebsworth wrote to Mr Deb on 18 March 2019. They outlined the complaints and allegations which Burnside had asked them to examine as follows:
1.   Between 21 May 2018 to 15 January 2019 you failed to attend for work at all times as required by your role.
2.   Council staff often experience significant delays waiting for responses to emails they have sent you for authorisation or comment.
3.   Between 13 April 2015 and 21 January 2019, you failed to submit leave applications on occasions when you were not undertaking work for Council.
4.   On 23 May 2018, at the Annual Business Plan and Budget Community Meeting held at Council’s Civic Centre, you were removed from the premises by Council staff because you were intoxicated.
5.   On 22 November 2018 you attended an Elected Member Workshop smelling of alcohol.
6.   On 22 January 2019 you attended an Elected Member Workshop smelling of alcohol.
7.   On 7 November 2018, during a conversation with Council’s General Manager, Corporate and Development, you said words to the effect that Council “would need to lose some credit card receipts” in relation to a current investigation being undertaken by the South Australian Ombudsman concerning Council credit card expenditure.
8.   On 7 October 2018 you were supportive of an email sent to Council’s Leadership Team by Mr Matthew Spearman which included comments that were critical of elected members. A copy of the email is attached at Annexure A.
9.   On 8 October 2018 you sent an email to Council’s General Manager, Corporate & Development and to Council’s General Manager, Urban & Community, which was critical of elected members. A copy of the email is attached at Annexure B.
10.   In or around late 2018 or early 2019 while you were conducting an investigation and disciplinary process against Council’s General Manager, Corporate & Development, you did not disclose an actual or perceived conflict of interest arising from the email shown at Annexure B.
11.   On 28 November 2018 at an Executive Team Meeting you made the following comments which were disparaging of Elected Members:
(a)that Councillor Lemon is the “worst elected member, closely followed by” Councillor Davis;
(b)that you can “wrap” Councillor Carbone “around your little finger”; and
(c)that Councillor Hensche is a “dumb fuck”.
12.   In or around late November 2018 you engaged in conduct which made the Group Manager, Finance & Governance, feel uncomfortable in the workplace and which constituted sexual harassment, when you said to her words to the effect that you “had an image of Mayor Monceaux and her husband in the shower with her husband rubbing Mayor Monceaux’s back”.
Correspondence then followed and an arrangement was made for Mr Deb to be interviewed by a solicitor at HWL Ebsworth. Mr Griffin wrote to HWL Ebsworth by email on 8 April 2019 complaining that they had written directly to Mr Deb. He complained of the allegation that he, Mr Griffin, was in a position of conflict.
On 1 April 2019 HWL Ebsworth wrote to Mr Griffin. It referred to Mr Deb’s email to HWL Ebsworth of 28 March 2019 informing them that Mr Griffin was acting for him personally. HWL Ebsworth referred to Mr Griffin’s letters in which he stated that he had acted for Burnside. They sought an explanation as to how, having acted for Burnside, Mr Griffin could act for Mr Deb.
On 5 April 2019 Mr Griffins complained about the lack of particularity in the allegations in the letter of 18 March 2019 but offered Mr Deb’s co-operation. Mr Griffin denied any conflict. He asserted that he was not on a retainer to the City of Burnside but had accepted instructions from them from time‑to‑time. He stated that the allegations against Mr Deb were not linked in any matter on which he had acted for the City of Burnside.
Mr Deb was interviewed by HWL Ebsworth on 16 April 2019.
On 5 June 2019, after considering a report from HWL Ebsworth, the Council resolved to dismiss Mr Deb. A letter of dismissal dated 6 June 2019 was sent to Mr Deb by email from Ms Lemon on the same date after her attempts to make arrangements to hand it to him personally were unsuccessful. The letter read:
We refer to the Employee Conduct Notification letter to you dated 18 March 2019 (Conduct Complaint).
As you are aware Council engaged an external law firm to undertake an investigation into those allegations numbered 8-12 of the Conduct Complaint. That portion of the investigation is complete.
A Special Meeting of Council was held on 5 June 2019 to enable Council to make a decision in relation to allegations numbered 8-12 of the Conduct Complaint and your employment. The purpose of this letter is to advise you of Council’s decision in this regard.
The allegations investigated have all been found to be substantiated. In this regard, Council has decided:
1. allegations 8, 9 and 10 are substantiated and amount to misconduct;
The proven misconduct in respect of these allegations is a breach of your obligations to Council including those under:
1.1clauses 7.1.2, 7.1.4, 7.1.6, 7.1.12.3 and l7.1.12.4 of your employment contract with Council as signed by you on 20 July 2015 (Contract);
1.2clauses 8.2, 8.3 and 8.4 of Council’s Employee Conduct Protocol dated April 2018 (Employee Conduct Protocol); and
1.3sections 97(1)(a)(iv) and 109(2) of the Local Government Act 1999 (SA) (LG Act).
2. allegations 11(a), 11(b), 11(c), and 12 are substantiated and amount to serious misconduct
The proven serious misconduct in respect of these allegations is a breach of your obligations to Council including those under:
2.1clauses 7.1.2, 7.1.4, 7.1.6 and 7.1.12 of the Contract;
2.2clauses 8.2, 8.3, 8.4 and 8.15 of the Employment Conduct Protocol; and
2.3sections 97(1)(a)(iv) and 109(2) of the LG Act.
Principles of summary dismissal
In Adami v Maison De Luxe Ltd,[3] the employer summarily dismissed the manager of its dance hall. The manager refused to work on Saturday afternoons because he worked as a bookmaker on those afternoons. The High Court held that the jury should have been directed to find for the respondent employer. Isaacs ACJ explained the nature of wilful disobedience which may warrant summary dismissal as one which is ‘a radical breach of the [employment] relation and inconsistent with is continuance’:[4]
… Here the subject matter is not “disobedience”, but ‘disobedience of a lawful order”. It is the whole compound expression that must be “wilful”, and not the one word “disobedience” adding a proviso “ if the order be lawful”. It is no doubt a correct principle that, once the relation of employer and employee is established, obedience to lawful orders is, if not expressly, then impliedly, contemplated by the contract creating the relation, and mere disobedience of such orders is a breach of the bargain. But whether disobedience in a given case is of such a character as to justify a complete dissolution of the contract by one of the parties and, as here, a forfeiture by the other of valuable accruing rights, together with some degradation – altogether a severe penalty – is, in my opinion, quite a different matter. Such a justification requires the disobedience to be as phrased
“wilful disobedience of a lawful order”. That is, it must be not merely a breach but a radical breach of the relation, and inconsistent with its continuance.

Once the element of “ wilfulness “ is introduced for the purpose of the summary rescission by one party of the whole contractual relation, with penal results on the other, then, as the “ wilfulness “ is the attitude of the employee, so far as it is conveyed by words or acts to the employer, the subject must be looked at from a new standpoint. “ Wilfully “ does not necessarily connote in that connection anything criminal or immoral, but it does connote some deliberate design or purpose to derogate from duty. …
[3] (1924) 35 CLR 143.
[4] (1924) 35 CLR 143 at 151-152.
Gavan Duffy and Starke JJ stated the principle of as follows:[5]
…Now it may well be—and the cases and the books suggest the conclusion—that where it is a condition of the contract that the servant shall obey all lawful orders of the master, then a wilful or deliberate and intentional disobedience of any of those orders is tantamount to a refusal to be bound by the terms of the contract, entitling the other party to treat it as at an end, and to dismiss the servant. But it is unnecessary to pursue this topic, and therefore most undesirable that this Court should say anything to weaken the authority of Turner v Mason, for acts of the plaintiff here did amount to a distinct refusal to be bound by the terms of his contract, and his failure to obey instructions was such as to go to the foundation and root of the whole contract between the parties.
The result is that the plaintiff was rightly dismissed in point of law, and the jury should have been so directed.
(Citations omitted)
[5] (1924) 35 CLR 143 at 155-156.
In Blyth Chemicals Limited v Bushnell,[6] the High Court held that the burden of justifying the summary dismissal of an employee lies on the employer. Blyth Chemicals operated a business which produced lead-based insecticides. It dismissed its manager on the ground that he had become the principal shareholder, and chairman of the board, of a rival company. Mr Bushnell had agreed to sign a document assuring Blyth Chemicals that his company would not enter into competition with it. After his dismissal, other instances of misconduct came to the knowledge of Blyth Chemicals.
[6] Blyth (1933) 49 CLR 66 (Blyth).
The High Court affirmed the judgment given in Bushnell’s favour. Starke and Evatt JJ accepted that, as manager, Mr Bushnell ‘might be dismissed without notice or compensation if he acted in a manner incompatible with the due and faithful performance of his duty, or inconsistent with the confidential relation between himself and the appellant’.[7] However, Starke and Evatt JJ distinguished between an employee who has acted in a manner incompatible with the performance of his or her duty and ‘a mere apprehension’ that the employee might so act:[8]
The mere apprehension that an employee will act in a manner incompatible with the due and faithful performance of his duty affords no ground for dismissing him; he must be guilty of some conduct in itself incompatible with his duty and the confidential relation between himself and his employer.
[7] (1933) 49 CLR 66 at 72-73.
[8] (1933) 49 CLR 66 at 74.
Dixon and McTiernan JJ noted that the business of the rival company was confined to the manufacture of white lead which was an ingredient in paint. Their Honours held:[9]
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. But the conduct of the employee must itself involve incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises. In the present case, many circumstances were given in evidence from which it might have been inferred that in all that he did the respondent was actuated by one design, namely, to prepare a position to which he could retreat with a considerable part of his employer’s business, if it should become necessary or desirable to vacate the managership of Jaques Proprietary Limited. If any such finding had been made, the learned Judge would clearly have been entitled, if not bound, to hold that the respondent had been guilty of misconduct. But, although there was evidence from which such an inference might have been drawn, the respondent’s conduct was capable of an innocent construction. …
(Citations omitted)
[9] (1933) 49 CLR 66 at 81-82.

The principle identified by the High Court in Blyth is that summary dismissal is justified when an employee’s actual conduct is repugnant to the employment relationship in the sense of being incompatible with the faithful fulfilment and performance of his or her duties or destructive of the confidence demanded by his or her role. It is the latter limb which is most obviously in issue in this action.
In Rankin v Marine Power International Pty Ltd,[10] after canvassing the authorities, Gillard J identified the grounds on which summary dismissal may be justified as follows:
[10] (2001) 107 IR 117 (Rankin).
250The authorities do establish that the employee’s breach of contract of employment must be of a serious nature, involving a repudiation of the essential obligations under the contract or actual conduct which is repugnant to the relationship of employer‑employee, before an employer may terminate the contract summarily. Isolated conduct usually would not suffice. Each case must be considered in the light of its particular circumstances, but nevertheless, the seriousness of the act of termination and the effect of summary dismissal are factors which place a heavy burden on the employer to justify dismissal without notice. The circumstances do not have to be exceptional, but nevertheless, must establish that the breach was of a serious nature.
251It was also submitted, on behalf of the plaintiff, that the right to terminate for misconduct “will only arise” where the employee has conducted himself in a way to demonstrate a repudiation of the contract, by, in a sense, manifesting an intention not to perform contractual obligations in the future.
252I respectfully disagree that that is the only occasion when an employer may terminate summarily.
253The contract of employment, of course, is a contract, and the general principles concerning contracts apply. Hence, if the employee breaches an essential term of the contract and thereby repudiates the contract, then the employer, as the other party to the contract, may accept the repudiation and rescind it. But that is not the only basis upon which an employer may bring the contract to an end.
254At common law, the authorities do establish that there is an interaction between the principles of contract law justifying rescission of a contract, and the rules established by the authorities over the last 150 years in relation to the type of misconduct justifying the dismissal of an employee without notice. It cannot be denied that in some cases, the courts do speak in terms of the basic principles of contract law (see, for example, Pepper v Nebb, but in my opinion, it would be wrong to say, as was submitted on behalf of the plaintiff, that the right to terminate only exists where the conduct of the employee demonstrates repudiation of the contract, manifesting an intention not to perform the contractual obligations in the future. I do emphasise that many examples of conduct justifying termination would comfortably fit in with those principles. However, the authorities do establish that there are offences which justify dismissal but which would not, in themselves, show that the employee was intending not to perform contractual obligations in the future. There may be an example of a one‑off serious act of misconduct which would justify dismissal, even though the probabilities were high that it would not occur again. This may be especially so when the employee is asked to explain his conduct, and shows remorse and gives an undertaking that the conduct will not occur in the future.
…
263The Master of the Rolls cited with approval what was said in Halsbury’s Laws of England, (3^rd ed). The principles may be summarised as follows –
(i)    Wilful disobedience of the lawful and reasonable order of the employer justifies summary dismissal.
(ii)     Misconduct, inconsistent with the due and faithful discharge by the employee of the duties for which he was engaged, is good cause for dismissal, but there is no fixed rule of law defining the degree of misconduct which will justify dismissal.
(iii)    There is a good ground for the dismissal of an employee if he is habitually neglectful in respect of the duties for which he was engaged.
(iv)    That a single instance of insolence would hardly justify dismissal.
(v)     The question is whether the conduct complained of is such as to show that the employee has disregarded the essential conditions of the contract of service.
(vi)    As a general proposition one act of disobedience or misconduct would not generally justify dismissal, but one such act may justify dismissal, “only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason therefore, … that the disobedience must at least have the quality that it is ‘wilful’: it does (in other words) connote a deliberate flouting of the essential contractual conditions.”
(Underlining added)
In Melbourne Stadiums Ltd v Sautner,[11] a five-member Full Court of the Federal Court of Australia allowed an appeal from the finding of the trial Judge that the employee’s misconduct did not justify summary dismissal. Melbourne Stadiums managed a major sporting venue in Melbourne. The misconduct alleged against Mr Sautner was that he used tickets to the Medallion Club Area of the stadium as a form of cash to obtain goods and services for his personal benefit. The conduct said to warrant summary dismissal was:
·the misuse of his position as Director Commercial Business of MSL to suborn another employee to issue him tickets to a rugby match to be played at the stadium in breach of the requirements of the Australian Rugby Union;
·making disparaging, disrespectful and derogatory comments about his Chief Executive Officer to a friend who was also a senior employee of the main sponsor of the stadium; and
·arranging tours of a stadium in Perth, even though he had been directed by the Chief Executive Officer not to have any involvement with that stadium.
[11] (2015) 229 FCR 221.
I observe in passing that the conduct in which Mr Sautner engaged bears some similarity to some elements of Mr Deb’s conduct as the following passages show:
63The photographs taken and the way Mr Sautner used at least one of them, disclose that Mr Sautner embarked on a deliberate course of action with the sole intention of undermining the reputation of his own CEO. This undermining was not done in a merely private setting. Ms Wight, although friendly with Mr Sautner, was an employee of MSL. While Mr Thomas was a friend, Mr Sautner also knew that Mr Thomas held a senior position with a major business partner of MSL. Mr Sautner must be inferred either to have intended or to have been indifferent to the potential harm to MSL caused by his conduct both within MSL (via Ms Wight) and within Etihad Airlines (via Mr Thomas).
64On no view can the taking of unauthorised photographs of the CEO, intending to and in fact using them to disparage the CEO, be characterised as “tea room discussions” in which it may well be accepted that adverse comments and complaints about superiors, even of the most robust kind, are often made.
65For these reasons the disparagement of Mr Sergeant, which included the taking and use of the photographs, was serious misconduct justifying the summary dismissal of Mr Sautner. The primary judge was in error to conclude to the contrary.
The Court allowed the appeal and ordered that Mr Sautner’s proceedings be dismissed. Subject to one qualification the Court accepted that the Judge’s statement of the following guiding principles was correct:
12At [159] the primary judge identified the principles relevant to the determination of this question referring in particular to the following observations:
·       Summary dismissal is not justified by a mere breach of the contract of employment as what is required is a “radical breach of the relation… inconsistent with its continuance” (Adami v Maison de Luxe Ltd (1924) 35 CLR 143 at 151per Isaacs ACJ);
·       “the true principle to be deduced from all the cases is that you must ascertain whether the conduct of the party who has broken the contract is such that the other party is entitled to conclude that the party breaking the contract no longer intends to be bound by its provisions” (Adami at 155 per Gavan Duffy and Starke JJ);
·       “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... But the conduct of the employee must itself involve the incompatibility, conflict, or impediment or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to future conduct arises” (Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 81-82 per Dixon and McTiernan JJ);
·       “The authorities do establish that the employee’s breach of contract of employment must be of a serious nature, involving a repudiation of the essential obligations under the contract or actual conduct which is repugnant to the relationship of employer-employee, before an employer may terminate the contract summarily… circumstances do not have to be exceptional, but nevertheless, must establish that the breach was of a serious nature” (Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 at 142).
The qualification concerned what the Full Court observed was perhaps a significant omission in the Judge’s last dot point reference to the judgment of Gillard J in Rankin. The Full Court affirmed the observations of Gillard J, which I have underlined in the passage reproduced at [181] above, that the conduct of an employee need not amount to repudiation, in the contractual sense, to warrant summary dismissal.
The Full Court concluded:
83In these circumstances, the primary judge’s conclusion that there was no basis to conclude that was a breach of the employment contract cannot stand. Mr Sautner was bound by his contract of employment to perform his duties and obligations “in accordance with all lawful instructions given to the Employee by or on behalf of the Company from time to time” (cl 2(e)). As MSL submitted, this is also an implied term in every contract of employment (Adami at 151 per Isaacs ACJ).
…
87The problem with the reasoning in [209], which founds the conclusion in [210], is that it focuses not on what Mr Sautner actually did, nor on the effect of what he did on the employment relationship with MSL (the required focus), but on things Mr Sautner perhaps could have done better, such as clearing the tour by the Brookfield consortium with Mr Sergeant, adhering to the ARU’s ticketing policy, clarifying MSL’s ticketing policy, and not disparaging Mr Sergeant. No attention is paid by the primary judge to the destruction of the relationship of trust essential to the employment relationship which Mr Sautner’s misconduct caused. Apart from the breach of the CEO’s direction, each of the other classes of misconduct was deliberate, involved elements of dishonesty, and of its very nature struck at the heart of the trust relationship between Mr Sautner and MSL. Each of those three, individually, justified summary dismissal. Taken together, with the breach of the CEO’s direction, no other conclusion was reasonably open other than that MSL had made good its case that Mr Sautner’s conduct justified summary dismissal.
(Underlining added)
Conclusion
The management of conflicts of interest is critical if a relationship requiring high levels of trust and confidence is to be sustainable. Mr Deb’s failure to fully and promptly disclose his conflicting personal interest in the disciplinary proceedings he undertook against Messrs Cooper and Cant had the following consequences. First, he jeopardised their employment and future prospects of advancement by prosecuting those proceedings without disclosing, and transparently weighing in their favour, his own part in the email exchange. Secondly, he denied Mayor Monceaux the opportunity to object to his conduct of the proceeding if she so chose after disclosure of his involvement. Thirdly, he made a decision which was vulnerable to administrative challenge thus creating uncertainty.
I have stopped short of inferring that Mr Deb’s instructions not to disclose the disciplinary files, including in particular Mr Cooper’s submissions, manifest a consciousness of his impropriety in personally exercising his disciplinary powers. However, I have found that Mr Deb deliberately chose not to delegate his function and not to acknowledge his role in the email exchange in order protect himself from criticisms and possible sanctions. In so doing he subordinated the interests of the Council, and Messrs Cooper and Cant who were dependent on him to conduct the disciplinary proceedings fairly, to his own.
Mr Deb, as Burnside’s Chief Executive, was duty bound to encourage respectful working relationships and effective co-operation between the Council and Burnside employees, and senior executives in particular. Instead, he promoted division in his comments at the executive meeting, and about Mayor Monceaux in the shower conversation he did not engender respect for councillors. They instead were calculated to breed contempt.
For the above reasons Burnside had reasonable grounds to summarily dismiss Mr Deb. I dismiss his action.
Having dismissed Mr Deb’s claim I will only briefly set out how I would have assessed damages if I had found otherwise.
I find that Burnside would have moved to dismiss Mr Deb as soon as it would have been contractually empowered to do so because of the seriousness of the breaches. The performance review procedure is inapt for these purposes because Mr Deb’s conduct fatally compromised the trust and confidence which was a critical element of his employment relationship. It is difficult therefore to conceive of any way in which Mr Deb could have restored that trust or confidence or, demonstrated a capacity and willingness to perform his duties as he was bound to do. Nonetheless, the alternative of nine months’ notice would have left Burnside in an intolerable position. I find that the Council could properly have given Mr Deb a short time, of, say, several months to demonstrate that he could meet the high standards of conduct and understanding of his functions and responsibilities demanded by the nature of his employment but he is unlikely to have demonstrated that capacity.
I can do no more than weigh the contingencies affecting his loss of some period of notice between three and nine months. If Burnside had been required to give nine months’ notice pursuant to clause 16.3.2 it could properly have required Mr Deb to exhaust his leave. It would have done so because of the seriousness of his conduct and the harm done to the relationships with the Mayor, other councillors and some senior staff. Mr Deb’s position as Chief Executive was untenable because the necessary trust and confidence between Mr Deb, and those councillors had been undermined and the respect for Mr Deb by some of his senior executives had been seriously diminished. Weighing the contingencies I would have assessed Mr Deb’s loss at 18 weeks’ salary.

[2023] SASC 14

3 February 2022