Hepburn v Department of Justice
[1997] IRCA 33
•20 February 1997
DECISION NO:33/97
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - MISCONDUCT - whether prison officer’s association with offender and breach of prohibition contained in Corrections Regulations 1988 was conduct justifying termination - whether prison officer knew or ought to have known of prohibition - PROCEDURAL FAIRNESS - whether employee given opportunity to respond to allegations contained in witness statements tendered in evidence and relied on by disciplinary inquiry in deciding to terminate prison officer
Workplace Relations Act 1996 ss 170DC, 170DE(1)
Corrections Act 1986 (Vic)
Corrections Regulations 1988, reg 6D(m)
Public Sector Management Regulations 1993, regs 34.1(c), 38.1
Selvachandran v Peteron Plastics Pty Ltd (1995-96) 62 IR 371
Nettlefold v Kym Smoker Pty Ltd (unreported, IRCA, Lee J, 4 October 1996)
Thomas v Lynch (unreported, IRCA, Wilcox CJ, 20 December 1996)
Wadey v YWCA Canberra (unreported, IRCA, Moore J, 12 November 1996)
VALERIE HEPBURN - v - DEPARTMENT OF JUSTICE
No. VI 2077 of 1996
Before: Judicial Registrar Millane
Place: Melbourne
Date: 20 February 1997
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2077 of 1996
B E T W E E N :
VALERIE HEPBURN
Applicant
A N D
DEPARTMENT OF JUSTICE
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 20 February 1997
THE COURT ORDERS THAT:
The applicant’s application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2077 of 1996
B E T W E E N :
VALERIE HEPBURN
Applicant
A N D
DEPARTMENT OF JUSTICE
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 20 February 1997
REASONS FOR JUDGMENT
Between 1988 and 31 May 1996 the applicant was employed as a prison officer by the respondent. Her position as at 31 May 1996 was that of senior prison medical support officer at the Pentridge Prison clinic. On 25 March 1996 the applicant was charged by the respondent, it being alleged that she had committed an act of misconduct and thereby committed a breach of discipline under regulation 34.1(c) of the Public Sector Management Regulations 1993. Regulation 34.1(c) provides as follows:
“34.1 A staff member who -
(a)...
(b)...
(c)commits any act of misconduct;
(d)...
commits a breach of discipline and is liable to disciplinary action in accordance with the provisions of this Part.”
On 31 May 1996 a disciplinary inquiry conducted by the respondent determined, following a hearing at which the applicant was legally represented, that the applicant had breached regulation 6D(m) of the Corrections Regulations 1988 which regulation provides as follows:
“6D. Without limiting regulations 6B and 6C an officer working in a prison or with prisoners must not -
...
(m) associate or correspond with a prisoner or offender except in the course of his or her duties or with the written authority of the Director-General.”
Relevantly the Corrections Act 1986 (Vic) provides definitions of the following words and phrases:
“”correctional order” means any of the following:
(a) A community-based order;
(b) A parole order;
(c) As intensive correction order;
“offender” means a person of whatever age who is the subject of a correctional order.
“prisoner” means a person who by virtue of section 4 is deemed to be in the custody of the Director-General.”
Regulation 38.1 of the Public Service Management Regulations 1993 provides for the imposition of one or more of a range of penalties once the civil standard of proof is met on the charge made. Regulation 38.1 provides:
“38.1 If, following an inquiry under this Part, the person conducting the inquiry is satisfied on the balance of probabilities that the staff member has committed a breach of discipline, that person may make one or more of the following determinations -
(a) issue a reprimand;
(b) impose a fine not exceeding 40 penalty units;
(c) transfer the staff member to another position in the Department or, a position in another Department with the approval of the Department Head of that other Department, at the same or a similar level of salary;
(d) reduce the staff member in position and salary;
(e) reduce the staff member in salary;
(f) dismiss the staff member.”
The decision of the disciplinary inquiry was that the applicant be dismissed as from 31 May 1996. The reasons for that decision are contained both in the transcript of the hearing (Exhibit R4) and the reasons subsequently published and accompanied by a letter dated 3 June 1996 to the applicant (Exhibit R5). Those reasons are set out in the following paragraphs:
“At no time during this Inquiry has it been disputed that Mr. Darren Jamieson has been residing at Ms. Hepburn’s home. Whilst Mr. Jamieson has made a written statement that he was living in a de facto relationship with Ms. Hepburn this has been disputed by Ms. Hepburn.
Mr Jamieson is a parolee who is currently attending the Box Hill Community Corrections Centre. By allowing Mr. Jamieson to reside at her home Ms. Hepburn has clearly formed an association with an offender.
Regulation 6D(m) of the Corrections Regulations 1988 forbids staff employed by the Correctional Services Division from associating with offenders without the written approval of the Director.
At no time did Ms. Hepburn have such written approval from the Director. Accordingly Ms. Hepburn has breached regulation 6D(m) and thereby breached regulation 34.1(c) of the Public Sector Management Regulations 1993.
In considering this matter the tribunal formed the opinion that this type of breach of the regulations was an act of significant misconduct. This type of breach of the regulations has a significant impact on the security, good order and management of prisons and offenders and significantly undermines the integrity of the prison service. There is a documented history of this type of association severely and adversely affecting the duty of care which the prison service owes to offenders. It is also undermines (sic) the trust and confidence Corrections staff must have in each other if they are to perform there (sic) duties in a safe and appropriate manner.
The tribunal does not accept that an officer employed in a prison environment for 8 years is unaware that it is fundamentally wrong to form an association of this type with an offender.
After considering the range of penalties available in relation to a breach of discipline this tribunal has determined that in this instance the only appropriate penalty is to dismiss Ms. Hepburn from her employment as a Senior Medical Support Officer. This penalty is to take effect from the close of business on 31 May 1996.”
It is alleged by the applicant that the termination of her employment on 31 May 1996 contravened the Workplace Relations Act 1996 (the Act). She particularly relies on breaches of section 170DE(1) claiming that there was no valid reason connected with her conduct and section 170DC alleging generally that there was a want of procedural fairness and natural justice in the termination process. Given the allegations made the respondent carries the initial burden of proving on the balance of probabilities the existence at termination of a valid reason connected with the applicant’s conduct. If that burden is discharged the burden then shifts to the applicant to prove a contravention of section 170DC of the Act which contains the following provisions:
“170DC An employer must not terminate an employee’s employment for reasons related to the employee’s conduct or performance unless:
(a)the employee has been given the opportunity to defend himself or herself against the allegations made; or
(b)The employer could not reasonably be expected to give the employee the opportunity.”
THE WITNESSES:
The applicant gave evidence on her own behalf.
The respondent called the following witnesses:
James William Vincent (Vincent), the assistant manager of the prison investigation and inspection unit, responsible for conducting investigations into alleged offences within the prison;
Peter Leonard Charles Brown (Brown), the manager of the prison investigation unit, responsible for investigations in relation to prisoners and staff in Victoria;
Janelle Maree Morgan (Morgan), the manager of strategic development and review in CORE, delegated to chair the disciplinary inquiry which heard the charge against the applicant; and
John Brian Griffen (Griffen), the chief executive officer of CORE the public correctional agency responsible for the public sector managed prisons, housing approximately 2300 inmates, and for community corrections which supervises offences in the community. In addition to these responsibilities, Griffen is also responsible for the Victorian Prison Industries Commission.
BACKGROUND
The applicant is now fifty two years of age. She spent three months in the respondent’s staff training college from 1 March 1988 before she commenced employment as a prison officer. By June 1989 she was promoted to the position of a senior prison medical support officer. No issue was raised by the respondent concerning the applicant’s work performance. Indeed, the service history relied on by the disciplinary inquiry indicates that in August 1994 the applicant received a commendation from the Officer-in-Charge of the Metropolitan Reception Prison in relation to the performance of her duties.
There was, however, evidence given by the applicant alleging difficulties between her and prison officials, particularly during 1991 and 1992. If there were matters concerning the applicant’s relationship with the prison management hierarchy and relevant to any of the facts in issue, then those matters were not properly put to the respondent’s witnesses. What was common ground was that the applicant was “a stickler for the regulations” and as far as the respondent’s witnesses were concerned, there was no cause for concern about her conduct until the issue of her association with an offender came to the prison investigation unit’s attention in late 1995.
After the applicant’s promotion she had the responsibility for the day to day running of the prison medical clinic. Although she sought to contradict earlier evidence she gave on this matter, I am satisfied that she also had the responsibility for training and looking after prison medical support officers who came within her jurisdiction. In other words, I accept that she held a senior and responsible position as a prison officer and had gained considerable experience in and knowledge of the workings of the prison system over some eight years of employment.
On 18 September 1994, Darren Jamieson, who was then a prisoner serving a sentence for manslaughter, was released on parole. It was again common ground that from the date of the release until at least the date of termination, Jamieson continued to be a parolee, released pursuant to a parole order. There was no evidence before the Court to indicate when any parole or custodial orders vis-a-vis Jamieson’s sentence cease. However, it is apparent that at all relevant times Jamieson was either a “prisoner” or an “offender” in accordance with the meaning ascribed to those words by the Corrections Act 1986. I include a reference to him as a prisoner because it seems from some of the evidence given at the hearing, putting to one side some of the statements tendered in evidence before the disciplinary inquiry, the truth of which the respondent did not seek to prove at the hearing before me, that arguably there was some association and correspondence with Jamieson before he actually left the prison as a parolee. Shortly before release Jamieson attended the medical clinic for treatment. The applicant conceded that on that occasion she gave him her telephone number and told him he could give her “a ring”. In her statement dated 16 January 1996 and forwarded to the respondent by her solicitors (Exhibit R2), she further claims that she told Jamieson that she “... knew his mother and that she had asked me to help him if I could. I advised him that if he needed any help after his release he should contact me”.
Following Jamieson’s release and during a time when he was classified as an offender, the applicant struck up an association with him. Precisely when their relationship developed into a de facto relationship is unclear. The lack of clarity on this matter exists because of what I perceived to be the applicant’s lack of candour when describing her relationship with Jamieson. In her statement dated 16 January 1996 she says (Exhibit R2):
“I am a Prison Officer currently under suspension for an alleged breach of discipline. I have been advised by my solicitor that he has been verbally advised that the alleged breach of discipline is relating to my association with a person known as Darran Jamieson.
I had met Darran Jamieson’s mother, Glenda Lindner approximately 10 years ago. We have kept in regular contact with each other over the years.
In approximately November 1993 Glenda telephoned me and advised me that her son Darran was in Pentridge.
I had no contact with Darran until approximately mid 1994 when I treated him for a cut finger. At that stage I did not make any mention on (sic) knowing his mother.
Shortly prior to him being released from prison Darran attended the clinic for some medical treatment. At that stage I told him I that (sic) knew his mother and that she had asked me to help him if I could. I advised him that if he needed any help after his release that he could contact me.
Following Darran’s release he resided in East Bentleigh and approximately a week after his release he telephoned me and told me that he was unhappy with his accommodation and was worried about being put in position (sic) where he would be breaching his parole.
I saw Darran on a number of occasions after his release on parole. I understand that he was travelling to and from the country and was very unsettled. In approximately February 1995 Darran advised me that he did not feel that he could reside at East Bentleigh any longer and he it (sic) was agreed that he could move in to a unit which I rented with my daughter. The unit has two bedrooms and a sofa bed in the lounge room. Darran slept on the sofa bed. He did not stay every night, but three or four nights per week. This went on until approximately late July or early August.
He then moved in full time and my daughter moved out in September.”
At the disciplinary inquiry she did not mention the nature of her relationship with Jamieson even though the statement the inquiry had before it from Jamieson clearly contradicted her own statement about the commencement of their relationship and what that relationship was. In her evidence-in-chief she told the Court that she did not develop a de facto relationship or “partnership” until about May of 1995. During cross-examination she told the Court she commenced a partnership with Jamieson “... in about probably somewhere between May and early July 1995”. The applicant then appeared to suggest that the full time relationship commenced in late July or early August and when challenged on this said “... so I am out a month, I apologise”. Notwithstanding these matters, it was accepted by the applicant that some days or approximately one week after Jamieson’s release, depending on whether one relies on the oral evidence or her written statement, he rang her and she commenced seeing him. By at least February 1995, on her evidence, Jamieson slept at her unit in Eltham from time to time and eventually moved in; at some stage thereafter commencing a de facto relationship with the applicant. At the date of hearing that relationship was a continuing one. When the police raided the applicant’s premises on 9 December 1995, having obtained a search warrant (Exhibit A1) to search the premises for certain drugs “... and things pertaining to the use of same”, they were later joined by senior prison officers who then confirmed that Jamieson was living with the applicant.
It was apparent to me from very early on in the hearing that the statement made by the applicant on 16 January 1996 combined with the evidence she gave at the disciplinary inquiry, provided a basis for saying that the elements of the charge that she had associated with an offender without the written authority of the Director-General, were not contested. After hearing all the evidence, and particularly the applicant’s oral evidence, it was also evident that there was a case for saying that the applicant had an unauthorised association and correspondence with a prisoner at least in the period shortly prior to Jamieson’s release in a way that did not relate to her duties as a senior medical prison support officer.
On the uncontested evidence, the only appropriate finding open to the Court is that the respondent discharged the onus it carried of establishing on the balance of probabilities that there was a breach of discipline and that came about because of the applicant’s association with an offender in the period alleged. In making its decision the respondent did not rely on a possible association and correspondence with a prisoner despite the admitted facts I have already alluded to above. Instead it confined itself to the allegation of an association with an offender. There was some suggestion by the applicant in her submissions to the Court that the interchange of the word “offender” with the word “prisoner” from time to time by the delegates who were appointed to hear and determine the inquiry, suggested an error in their reasoning process. I am satisfied that in context the use of the word “prisoner” was a mere slip and the decision to terminate was confined to the finding that she associated with an offender.
The finding that in fact there was a breach of discipline and evidence of misconduct upon which the respondent could make a decision to terminate, does not of itself lead to the conclusion that there was at termination a valid reason connected with the applicant’s conduct. In this Court there is authority for saying that the meaning of the phrase “valid reason” encompasses something wider than objective truth. Justice Northrop’s interpretation of that phrase in his decision in Selvachandran v Peteron Plastics Pty Ltd (1995-96) 62 IR 371 is considered to be the leading authority on this point. He sets out his understanding of that phrase in the following words:
“Section 170DE(1) refers to "a valid reason, or valid reasons", but the Act does not give a meaning to those phrases or the adjective "valid". A reference to dictionaries shows that the word "valid" has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: "2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value." In the Macquarie Dictionary the relevant meaning is "sound, just, or well founded; a valid reason."
In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must "be applied in a practical, commonsense way to ensure that" the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.”
In his recent decision in Nettlefold v Kym Smoker Pty Ltd (unreported, IRCA, Lee J, 4 October 1996), Justice Lee expressed the following view on the meaning of the phrase “valid reason”:
“Neither counsel made any submissions on the question whether the phrase "valid reason" used in sub-s170DE(1) of the Act imposed a requirement that in all the circumstances a termination of employment at the initiative of an employer not be unjust or unfair. The terms of the Act suggest that such a construction is arguable. Section 170CA of the Act states that the object of Div 3 of Pt VIA is to give further effect to the Termination of Employment Convention ("the Convention") the text of which is set out in Schedule 10 of the Act. Art 8 of the Convention requires a contracting party to the Convention to ensure that a worker who has been dismissed is entitled to challenge that dismissal in an appropriate tribunal if the worker considers that his or her "employment has been unjustifiably terminated" and pursuant to Art 9 of the Convention that tribunal is to be empowered "to examine the reasons given for the termination and the other circumstances relating to the case and to render a decision on whether the termination was justified".”
The observations of Justice Lee have since been the subject of consideration by the Chief Justice of this Court in his decision in Thomas v Lynch (unreported, IRCA, Wilcox CJ, 20 December 1996) where he makes the following comment:
“As I understand Lee J’s view, it is that the validity of the employer’s reason cannot be divorced from its effect on the employee. It is not enough that there is a reason for the termination that is defensible from the employer’s point of view. The reason must be one that makes the termination “justified”, after taking into account the effect of the termination on the employee.”
As can be seen from the abovementioned authorities it is incumbent on the respondent to show that the termination was justified by reference to the reason or reasons relied on. This does not mean that this Court should seek to impose its own view as to whether on the facts before it the Court would have terminated the employee. As Justice Moore noted in his decision in Wadey v YWCA Canberra (unreported, IRCA, Moore J, 12 November 1996):
“... It is not for this Court to approach the matter as if it is to make a decision whether termination should occur or not. A range of rational and reasonable views may exist as to whether particular conduct warrants termination. If the view adopted by, or on behalf of, the employer is rational and reasonable then, in my opinion, the employer has established a valid reason for the purposes of s 170DE(1).”
In this case I must decide whether on the evidence the respondent was entitled to view her conduct as seriously as it did.
The applicant raised a number of circumstances she claimed challenged the fairness of the decision to terminate. Her principle challenge was that until her home was raided and she had discussed this matter with Brown, she had no knowledge of the requirements of regulation 6D(m) insofar as it prohibited association or correspondence with an offender. Further, she claimed that the promulgation of this regulation from 1 October 1991 had not been brought to her attention by the respondent.
In her evidence generally the applicant appeared to concede that she knew and understood that there was a prohibition against associating with prisoners. Nevertheless she denied any knowledge of any amendment to the Corrections Regulations from 1 October 1991 which amendment extended the prohibition to offenders, much less any general understanding gained through her long service as a prison officer that this conduct was prohibited. She also denied being aware of any requirement to keep abreast of any changes to the rules relating to the conduct of prison officers. The argument advanced by the applicant raises the question of whether, in all the circumstances, the applicant knew or should have known of the existence of the prohibition as well as the requirement that she seek written authorisation from the Director-General to associate or correspond with Jamieson. This is because her knowledge and any responsibility she carried to acquaint herself with the changes to the regulations from time to time, are relevant to the question of whether the termination was justified.
The respondent’s witnesses gave evidence which, broadly speaking, pointed to prison security and management issues they said the amended regulation sought to address. I accept as reasonable and logical the assertion made by these witnesses concerning both the management and the security of the prison if prison officers engage in unauthorised associations with prisoners or offenders.
In an attempt to convince the Court that the respondent had acted either inconsistently or, as the applicant’s solicitor put it, did not apply “parity of sentencing” in dealing with the applicant’s case, the applicant gave evidence of and her solicitor cross-examined the respondent’s witnesses about a number of cases where prison officers allegedly associated with prisoners or offenders. The evidence did not establish any inconsistency in the application of the disciplinary policy because each case must be decided on its merits. What it did do was confirm the need for treating any breach of the prohibition as a serious one. This is because numerous instances were cited by the applicant of individual prison officers associating with prisoners or offenders. Given the potential compromise to its management and security systems posed by these associations, it is reasonable to assume that the respondent viewed the breach of the standards of conduct for prison officers as a serious one.
In handing down their reasons for their decision the delegates who conducted the disciplinary inquiry made the following observation:
“The tribunal does not accept that an officer employed in a prison environment for 8 years is unaware that it is fundamentally wrong to form an association of this type with an offender.”
The abovementioned comment suggests that the respondent was of the view that even if the applicant was not directly informed about the amendments to the regulation since 1 October 1991, her long experience in the prison environment should have led to an understanding that an association of the kind she had with an offender was “wrong”. In context I understand the use of the word “wrong” to mean “inappropriate” conduct on the part of a prison officer. As I have already noted the applicant did agree that she was aware at all relevant times of the prohibition against associating with prisoners. She also appeared to understand that when Jamieson left the prison on parole, he was still part of the prison system inasmuch as he remained under the supervision and control of the prison until his release was unconditional. These matters, as well as her knowledge of some of the more notorious cases; such as that involving Heather Parker, where the associations led to serious breaches in prison security indicate, at best, a remarkable lack of judgment in not recognising the conflict between the association she appears to have initiated and pursued and her duties as a prison officer while working in the unique environment and culture a prison workplace provides.
It is necessary to address a further allegation made by the applicant prior to her termination and repeated during the hearing. She alleges some form of victimisation by her employer. This allegation appears to have its origins in the circumstances giving rise to the raid on her premises. Both the suggestion that there may have been illegal drugs at her premises and the suggestion that she may have used her position at the clinic to take drugs into or out of the prison, are very serious allegations. The raid did not lead to the applicant being charged with any offences relating to these matters and the commission of any criminal offence was not canvassed in either the proceeding before the Court or the disciplinary inquiry.
It was the applicant’s view that the raid, the matters referred to in the warrant and the references to drug related activities were evidence of victimisation of the applicant by the respondent, indicating an attempt to get rid of her. Because of these allegations she sought access to the prison intelligence files which access the respondent opposed, claiming that they contained information identifying informers associated with the investigation of alleged criminal activities and, further, arguing that the files were not relevant to the matters in dispute.
The principle issue before the Court was whether the reason relied on by the disciplinary inquiry to terminate the applicant’s employment was a valid reason. The respondent did not seek to contest the length of time the intelligence unit may have known of the applicant’s association with the offender before briefing Griffen. In my view the intelligence files were not relevant to determining any material issue in dispute. The facts admitted by the applicant, in any event, establish that there was an association prohibited by the regulations. Even if the warrant and the raid by the police on her premises searching for illicit drugs was initiated by a person or persons bearing some ill will towards her, be they unidentified informers or fellow employees, the existence of the association with Jamieson was never denied and the motives and bona fides of the two delegates conducting the disciplinary inquiry and making the decision to terminate were not questioned.
THE EVIDENCE
In order to determine the issues between the parties it is necessary for me to make some observations about the credibility of the witnesses and the plausibility of the evidence given at hearing.
My observation of the respondent’s witnesses was that they were straight forward and candid when giving their evidence. There was nothing in the demeanour of these witnesses or the manner in which they responded to questions to cause me any concern about their evidence. They were tested at some length by the applicant’s solicitor, Mr Woodhams, about the existence of files and intelligence information which would have indicated to the prison investigations unit some weeks or months before the raid on the applicant’s home, that the applicant was associating with an offender. On the evidence given I am satisfied that the intelligence services associated with the prison may have had knowledge of the association weeks or months prior to informing the prison investigation unit of their knowledge and any action being taken against the applicant.
Part of the applicant’s case, which I accept as correct, is that the knowledge held by the respondent’s intelligence services is imputed to the department ultimately responsible for investigating her actions. She claims that it was unfair and unreasonable for the respondent to have waited so long without acting to warn or counsel her about her conduct. Any delay, she argued, was relevant to the penalty imposed because the respondent had procrastinated before acting to end the alleged misconduct.
In his evidence-in-chief Griffen told the Court that he received a briefing from the intelligence unit on 24 October 1995 informing him that there was an allegation that the applicant was “residing with a prisoner”. He was also informed that the police had an interest in this matter because they believed there “... may be criminal activities or allegations of criminal activities involved and that I was asked not to do anything that would jeopardise that inquiry”. He did wait until the end of November when he says he formed the view that “I couldn’t afford from a security point of view, to allow the matter to continue ...”. Ordinarily the failure of an employer to act to terminate within a reasonable period after the employer becomes aware of any misconduct might be seen as a basis for saying that the employer waived any right it had to terminate by reason of the misconduct alleged. In the present case it was said that there was an investigation relating to drugs and that investigation included the applicant who held a senior position in the prison clinic, and Jamieson who was living in a de facto relationship with the applicant. Each case has to be considered by reference to its particular facts. In my view the explanation provided for the delay is, on the facts of this case, a reasonable one, particularly where there is no evidence of any prejudice suffered by the applicant by reason of any protracted investigations.
As I have already noted, the applicant was not charged with any drug related offences and those allegations are not relevant considerations in determining whether the termination was justified.
I had some difficulty with the applicant’s evidence. Even if I make allowance for her confrontational style as a witness, I was troubled by her responses on a number of matters. On occasion she appeared evasive and her answers to questions lacked consistency and plausibility. I was also troubled by the way in which her case was argued before the Court. The disciplinary inquiry heard oral evidence from both Vincent and the applicant. The only other evidence before the delegates was that contained in various signed statements. Significantly, one was from Jamieson and was obtained from him by Vincent. Two other statements were also obtained by Vincent from Jamieson’s mother and step-father in Mount Gambia. Another written statement was that made by the applicant and forwarded by her solicitors to the respondent in January 1996.
During the disciplinary inquiry Mr Woodhams, who also represented the applicant on that occasion, objected to the hearsay content of the statements tendered in evidence by the respondent other than the applicant’s statement. It was argued by Mr Woodhams in Court that the decision of the disciplinary inquiry was unfair because it was based on unsubstantiated hearsay and there had been no opportunity for the applicant to cross-examine the makers of the statements in circumstances where the statements I have referred to contradicted her evidence on a number of material points. The disciplinary inquiry relied on all the written statements provided by the employer at that time as well as the oral evidence from Vincent and the applicant.
During the hearing before this Court it was made clear to Mr Woodhams that the Court’s charter is to hear and determine the case on the evidence before the Court. It is apparent that the public sector management legislation establishes principles of behaviour for the respondent as an employer and provides a pre-termination procedure which includes the opportunity to have the charge of misconduct heard by a disciplinary inquiry. Those procedures incorporate certain principles of natural justice in the termination process. For instance, regulation 37.6 of the Public Sector Management Regulations 1993 provides the following opportunities:
“37.6A staff member charged with a breach of discipline -
(a) may be assisted or represented in the inquiry by an agent including a legal practitioner; and
(b)must be afforded reasonable opportunity -
(i)to be present during the course of the inquiry; and
(ii) in the course of the inquiry to question persons making allegations against the staff member or providing information in support of the allegations; and
(iii) to bring persons or documents before the inquiry to provide information in support of the staff member; and
(iv)to make statements and representations to the inquiry.”
As can be seen from regulation 37.6(b)(ii) there is provision for an employee to question those who make allegations against her or him or who provide information in support of the allegations. I have read the transcript of the hearing conducted by the delegates and it is obvious that Mr Woodhams objected on a number of occasions to the admission of the statements in evidence because of their hearsay content, where the makers of the statements were not called and, where, because of their absence from the inquiry, he would have no opportunity to cross-examine them. Notwithstanding his submissions to this Court, it is also obvious that Mr Woodhams was offered the opportunity of an adjournment. This opportunity was offered to him after he indicated that if he had known the respondent was relying on any statements made by Jamieson, he would have interviewed Jamieson and called him as a witness himself. Mr Woodhams maintained his objection to the admission of all the statements apart from the applicant’s and reserved the right to call the witnesses and particularly Jamieson. Having reserved that right, he then proceeded with the disciplinary hearing without pursuing this matter any further.
On any question of procedural fairness I am satisfied the applicant had the opportunity at the disciplinary inquiry to contradict the contents of the statements to which she objected, particularly where the makers of those statements were people associated with her and her de facto husband. She did not avail herself of the opportunity offered. Accordingly, it was not unreasonable for the respondent to rely on those statements when it conducted the inquiry it was required to conduct and determined to dismiss her.
At the hearing before the Court the respondent did not rely on the statements originally tendered to the disciplinary inquiry, nor did it call evidence from the makers of those statements. It did, however, seek to cross-examine the applicant on some of the matters raised in Jamieson’s statement; a course it was entitled to take as part of its cross-examination.
The applicant alleges that to the extent that it relied on the statements when it decided to terminate her employment, the respondent denied her a proper opportunity to respond to the allegations made and thereby contravened section 170DC of the Act. She carries the burden of proof on this matter and provided no explanation to the Court for not calling at least Jamieson with whom she resides and who she says made the statement to Vincent under duress. This allegation was not put to Vincent either at the disciplinary inquiry or at hearing.
In order to establish the breach of discipline alleged the respondent did not need to go beyond the admitted facts. This being so, the relevance at hearing of the statements obtained by the respondent as part of its investigation of the alleged misconduct, was that the statements purported to contradict the applicant, particularly on matters to do with when and how her association with Jamieson commenced. The statements were not admitted in evidence in the proceeding before the Court; although they were included in documents that were otherwise relevant and admissible in this proceeding. However, the respondent correctly accepted that in the face of the objection from the applicant it could not rely on the hearsay content of the records it put before the Court. In assessing the applicant’s credibility I have ignored the matters alluded to in the statements just as I have ignored the applicant’s allegation about any circumstances in which those statements were allegedly obtained. Nevertheless, I cannot ignore the failure of the applicant to avail herself of the opportunity offered by the disciplinary inquiry to contradict the contents of the contested statements when it is she who carries the burden of establishing that the respondent did not give her a proper opportunity to respond to both the allegations made and the evidence called before proceeding to termination.
One of the significant areas of dispute between the applicant and the respondent was the extent to which she was required to maintain her knowledge of prison regulations and rules. It was said by the respondent that as part of her training, and indeed the training of all prison officers, she was required to familiarise herself with what were referred to as the Director-General’s Rules. These rules incorporate the statutory and regulatory standards set out in the legislation. With regard to the conduct of prison officers, the Director-General’s Rules also contain a section on standards of conduct for all officers. It was said that each area of the prison contains a large folder with the title Director-General’s Rules on the front cover. The folders are numbered and located in different sections of the prison. Exhibit R1 was said to be the folder taken by Vincent from the clinic the day before the Court hearing. He also allegedly photographed a folder in situ in May 1996, before the disciplinary inquiry commenced. The folders are updated from time to time and although the amendments to the regulations took effect from 1 October 1991 it is apparent that the folder was not updated until after 22 April 1992. According to the respondent’s witnesses there was also a bulletin posted on the notice board. The bulletin on 22 April 1992 (included in Exhibit R1) gives notice of the changes to the Director-General’s Rules including the change brought about by the amendment on 1 October 1991. If one were to only read the bulletin it does not appear to specifically identify the amendment regarding the conduct of officers.
The applicant was prepared to concede that she was aware of some the Director-General’s Rules. She even went so far as to say that “I know what the Director-General’s Rules set out but they are not complied with by prison officers”. She did qualify this answer by then saying that she did not know the full contents of the Director-General’s Rules. What she did know pertained to medical matters she was concerned with at the clinic. She conceded that she was aware of the rules when she started her employment and was aware that copies were located around the prison. She denied being told that it was the responsibility of staff to familiarise themselves with the rules. She was adamant in her denial of this matter; yet, when questioned on more recent events such as whether or not in 1992 a staff development course she attended dealt with professional conduct and ethics her memory failed her.
At hearing the applicant positively asserted that, contrary to the respondent’s claim, there was no copy of the Director-General’s Rules in the clinic in which she worked. She said the closest copy was in the chief’s office in D division. She had consulted that copy before on matters only relating to her clinic work. She did concede that she knew that the rules were updated from time to time.
Other than to give evidence of its general practice in the training of staff, the availability of the updated rules and the posting of bulletins on the notice board, the respondent did not lead evidence of the actual training given to this applicant to support its assertion that she knew and was responsible for familiarising herself with the changes prior to 9 December 1995. It mainly relied on the applicant’s credibility and the plausibility of her answers. It asked the Court to conclude from her responses that, first, she understood the nature and extent of the prohibition that applied to her as a prison officer; secondly, she understood that she had an obligation to keep abreast of the changes to the rules of conduct; thirdly, she had extensive experience in the prison system and actual knowledge of instances of prohibited associations which led to disciplinary charges; and, lastly, she had access to the rules of conduct had she chosen to avail herself of the opportunity to properly acquaint herself with those rules of conduct.
The transcript of the disciplinary hearing contains the following exchange between the applicant and the prosecutor, Mr Millsom:
“MR MILLSOM: In relation to your saying that the first you knew it was an offence or a breach of discipline to associate with a person on parole was the 9th of December, ‘95?
MISS HEPBURN: That’s correct.
MR MILLSOM: In your office down in Clinic would you agree ---
MISS HEPBURN: I don’t actually have an office in D Clinic. There’s a common ---
MR MILLSOM: The ..... office, the ---
MISS HEPBURN: A common room , D Clinic?
MR MILLSOM: Yes. Would you agree there’s a set of Director General’s Rules in there?
MISS HEPBURN: That I couldn’t tell you.
MR MILLSOM: You couldn’t.
MISS HEPBURN: Not off hand, no.
MR MILLSOM: Well, I can assure you there is.
MR WOODHAMS: Well, if you want to give evidence you can give evidence. You can’t make comments from the bar table.
MR MILLSOM: I refer you to page 1 of the DG’s Rules which I’ve read out twice before and it says: “It is the responsibility of all staff to familiarise themselves with the legislation relevant to their duties and the Director General’s Rules”. So I note that you say you was never instructed or never told that you weren’t to associate. The DG’s Rules puts the onus on you, would you agree, to make yourself aware of these things?
MISS HEPBURN: On all prison officers I believe it puts the onus but not all prison officers know that the DG’s Regulations or follow the DG’s Regulations as you and I both know. The Regulations are breached daily.”
The abovementioned exchange was relied on by the respondent to assert that the applicant lied during the hearing before the Court. When the applicant was cross-examined by the respondent’s counsel at hearing and it was put to her that there was a copy of the Director-General’s Rules kept in the clinic at which she worked at Pentridge, her response was a firm “no, there was not”. When she was asked whether she was sure about that, she indicated “well, I’m pretty sure of it, yes”. At that point in the evidence parts of the exchange between Mr Millsom and the applicant during the disciplinary inquiry were read back to the applicant and, in particular, the part where she says “that I couldn’t tell you” in response to Mr Millsom asking her to agree that “there’s a set of Director-General’s Rules in there”. The applicant attempted to explain the difference in her answers by suggesting that it was “just a comment that I made”. When it was put to her that the fact that she did know what was in the Director-General’s Rules was an important part of her case, she gave a number of responses ranging from “I don’t know” to “I don’t know whether its important or not important for me to deny that I have any knowledge of what’s in the Director-General’s Rules”.
The applicant’s evidence in relation to the abovementioned matters is unsatisfactory because it is apparent from the evidence given at the disciplinary inquiry that she sought to convey the impression that she did not know whether or not there was a set of Director-General’s Rules in the clinic in which she worked. By the time this matter was heard by the Court seven months later she had a distinct recollection that there was no copy kept at the clinic. Moreover, my observation of the applicant was that she demonstrated throughout the hearing a very clear appreciation of the issues confronting her. This being so I do not accept that she was, by the time of the hearing before the Court, unaware of the significance of her evidence on this matter and, particularly, the significance of her knowledge of and access to the Director-General’s rules. It appeared to me that she sought to advance her case by providing the answer she gave at hearing, just as she sought to distance herself from the allegation of associating with an offender by providing her employer with a written statement in January 1996 which avoided any admission of a de facto relationship. The statement conveys the impression that she was assisting Jamieson who was staying and sleeping on the sofa bed in the applicant’s lounge room because of his concerns about the suitability of his original accommodation.
In her written statement the applicant refers to Jamieson moving into her unit “... full time and my daughter moved out in September”. From the oral evidence given in Court the “full time” relationship was on foot any time from May 1995 onwards. By a written noticed dated 17 July 1995 (Exhibit R7) the applicant provided the respondent with a change of address from the address she had been living at in Eltham when Jamieson commenced to stay, which was the address at which they were living when the police subsequently raided the premises on 9 December 1995.
The new address given to the respondent was a Hurstbridge address with any emergency contact directed to the applicant’s daughter at the former Eltham address.
When cross-examined about the change of address during this period, the applicant claimed that she left the Eltham address “temporarily” but actually continued to live with Jamieson at the Eltham address. She alleged that the Hurstbridge address was her son’s property and she “... spent some time there”. When pressed on this point she responded by saying that she spent a couple of weeks there.
Not surprisingly, the applicant was asked whether she had provided another change of address form to her employer when she returned to the Eltham address after a couple of weeks at Hurstbridge. She initially responded by saying “I don’t recall” and then suggested that she was unsure of whether she had given another change of address. Because, she alleged, there were a lot of documents missing from her personnel file, the applicant felt that any further notice may have gone missing. After hearing her evidence I was of the view that the applicant was not being candid with the Court. When she said she did not recall whether she had forwarded a further change of address to her employer, it is more probable than not that she knew she had not taken this step and in giving her answers was attempting to counter the clear inference that by filing the first notice of change of address she sought to mislead her employer as to her whereabouts.
FINDINGS
The inference I draw from the applicant’s lack of candour at hearing on a number of significant matters is an adverse one and this affects the weight I am able to give to her denials generally. On the evidence I am satisfied that it is more probable than not that the applicant understood that there was a prohibition against associating with offenders. I am not satisfied that the evidence permits a conclusion that the applicant had read the relevant regulation as amended. Nor am I satisfied that there was direct evidence of any training or instruction given to the applicant requiring her to keep abreast of the changes to the regulations. Whilst the introductory section of the Director-General’s Rules does require staff to familiarise themselves with the legislation relevant to their duties, that section of the Rules is dated “12-11-89” which indicates that it was filed in the exhibit document well after the applicant commenced her employment. However, I am satisfied that she knew of the existence of rules of conduct and at the relevant time she had access to these rules had she chosen to avail herself of the opportunity to acquaint herself with any changes. More importantly, I am satisfied that the applicant’s long experience as a prison officer and her detailed knowledge of past associations leading to disciplinary action against prison officers, make it more likely than not that she understood that the association was not appropriate conduct on the part of a prison officer. Her approach throughout the hearing was to deny the risk her continuing association posed in employment where a high standard of security conscious behaviour is expected and necessary for the sake of fellow prison employees, the prisoners and the public. This does not mean that Jamieson did then or now does pose any particular threat to the prison system or the community; it is the risk that such an association creates that requires acknowledgment. All these matters suggest to me that it was not unreasonable for the disciplinary inquiry to conclude that the applicant understood such an association was wrong.
My findings is that the termination was justified and the respondent has discharged the burden of proof it carried. Further, because of the matters I have already discussed above, I am not satisfied that the applicant has discharged the burden she carried of showing that she was denied the opportunity to respond as contemplated by section 170DC of the Act. Accordingly, the order I propose to make is that the applicant’s application is dismissed.
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The applicant’s application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding twenty-four (24) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated: 20 February 1997
Solicitors for the Applicant: Woodhams O’Keeffe & Co
Appearing for the Applicant: Mr G. Woodhams
Respondent represented self.
Counsel for the Respondent: Mr F. Parry
Date of hearing: 13 & 14 January 1997
Date of judgment: 20 February 1997
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