Hepburn, Valerie v Department of Justice Office of Corrections

[1998] FCA 315

VALERIE HEPBURN v. DEPARTMENT OF JUSTICE - OFFICE OF CORRECTIONS
No. VI 2077 of 1996
FED No. 315/98
Number of pages - 16
Employment Law

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

SPENDER J

Employment Law - unfair dismissal - whether termination of applicant's employment contravened s 170DE(1) Industrial Relations Act 1988. Where applicant employed as prison officer and dismissed for "associating" with prisoner on parole. Whether decision to dismiss applicant reasonable.

Industrial Relations Act 1988 s 170DE(1)

Corrections Regulations 1988 (Vic) reg 6D

Public Sector Management Regulations 1993 reg 34.1(c)

Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 cited

Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370 cited

Kerr v Jaroma Pty Ltd (1996) 70 IR 469 cited

Wadey v YWCA Canberra, (Moore J, 12 November 1996, unreported) applied

MELBOURNE, 20-21 October 1997 (hearing), 2 April 1998 (decision)

#DATE 2:4:1998, BRISBANE

Counsel for the Applicant:	Mr P G Priest
Solicitor for the Applicant:	Woodhams O'Keefe
Counsel for the Respondent:	Mr F Parry
Solicitor for the Respondent:	Peter Puttman

THE COURT ORDERS THAT:

1. It is declared that the termination of the employment of the applicant by the respondent contravened s 170DE(1) of the Industrial Relations Act 1988.

2. The respondent reinstate the applicant by:

(i) reappointing the applicant to the position in which she was employed immediately before the termination; or

(ii) appointing the applicant to another position on terms and conditions no less favourable than those on which she was employed immediately before the termination.

3. The period between the date of termination and day of her reinstatement be treated as continuous employment of the applicant by the respondent for all purposes.

4. The respondent to pay to the applicant the lost remuneration resulting from the termination of her employment between 31 May 1996 and the date of this decision within fourteen days of the date of these orders.

5. Liberty to apply.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

SPENDER J

This is a review pursuant to s 377 of the Workplace Relations Act1996 (Cth) of a decision by a Judicial Registrar dismissing an application by Ms Valerie Hepburn seeking reinstatement subsequent to her dismissal as a prison officer employed by Correctional Services in the Department of Justice ('the Department').

Ms Hepburn was a prison officer employed by the respondent at Pentridge Prison from 1 March 1988. She attained the position of senior medical support officer in June 1989. Ms Hepburn was dismissed on 31 May 1996 after a disciplinary inquiry into a charge of misconduct that had been laid against her on the basis that she had "associated" with a person on parole.

Regulation 6D of the Corrections Regulations 1988 (Vic) provided:

"6D Conduct of officers working in a prison or with prisoners. 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."

Regulation 34.1 of the Public Sector Management Regulations 1993 provides:

"34(1) A staff member who... ... (c) commits any act of misconduct;... ... commits a breach of discipline and is liable to disciplinary action in accordance with the provisions of this Part."

The Corrections Act 1986 (Vic) s 3 provides as follows:

" 'correctional order' means any of the following:

(a) A community-based order;

(b) A parole order;

(c) An 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 s 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."

On 31 May 1996, a Miss Janelle Morgan and a Mr D Roach, as delegates of the Secretary to the Department, conducted a disciplinary inquiry into a breach of discipline which had been set out in a letter by the Director of Correctional Services ('the Director') to Ms Hepburn of 25 March 1996. That letter charged Ms Hepburn with a breach of discipline pursuant to reg. 34.1(c) of the Public Sector Management Regulations 1993. The charge related to the allegation that she had formed an association with an "offender" without the written approval of the Director.

At the conclusion of the hearing, in respect of which it is necessary to set out some further material later, Ms Morgan indicated that the penalty to be imposed was dismissal, effective immediately.

On 13 June 1996 the applicant made an application under s 170EA(1) of the then Industrial Relations Act1988 (Cth) ('the IR Act') for reinstatement and compensation.

On 20 February 1997 the court, constituted by a Judicial Registrar, dismissed that application.

This application is by way of re-hearing. It proceeded by way of oral evidence.

The central issue in the present proceeding is whether there was a "valid reason" or "valid reasons" pursuant to s 170DE(1) for the applicant's termination of employment.

Ms Hepburn asserts that there is not a valid reason connected with her conduct for the termination of her employment on 31 May 1996 and further, that s 170DC of the Act was contravened by her employer, in that there was a want of procedural fairness and natural justice in the termination process.

Section 170DC of the IR Act provided:

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.

Section 170DE(1) of the IR Act provided:

"(1) An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service."

Section 170EDA(1) provided:

"If an application lodged under section 170EA alleges that a termination of employment of an employee contravened subsection 170DE(1) then, in any consent arbitration arising from the application or in any proceedings arising on the referral of the application to the Court: (a) the termination is taken to have contravened subsection 170DE(1) unless the employer proves that, apart from subsection 170DE(2), there was a valid reason, or valid reasons, of a kind referred to in subsection 170DE(1); and (b) if the employer so proves, the termination is nevertheless taken to have contravened subsection 170DE(1) if the applicant proves that, because of subsection 170DE(2), the reason or reasons proved by the employer were not valid."

It is helpful to refer immediately to the well known passage in the judgment of Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373 where his Honour discussed the meaning of "valid reason" in s 170DE:

"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 Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370, Lee J also referred to s 170DE and said at 371:

"Subsequent to the hearing of this matter the High Court determined in Victoria v Commonwealth (1996) 70 ALJR 680; 66 IR 392 that s 170DE(2) is invalid. This application must be determined according to the law so declared. Counsel for the parties were invited to lodge further submissions and did so. Neither counsel made any submissions on the question whether the phrase "valid reason" used in s 170DE(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 Sch 10 of the Act. Article 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"."

His Honour then referred to the passage of Northrop J from Selvachandran v Peteron Plastics Pty Ltd (supra) and then later observed at 372:

"By giving effect to the Convention the Act seeks to establish a balance between the right of an employer to duly manage an enterprise in which labour is employed and the right of an employee, and of the community, not to have the asset represented by the capacity of employees who provide such labour, whether skilled or unskilled, depreciated by incompetent or capricious management of labour by an employer."

In Kerr v Jaroma Pty Ltd (1996) 70 IR 469 at 475, Marshall J said:

"It is noteworthy that Northrop J referred to the adjective "defensible" in considering what is a valid reason. I make this observation because the International Labour Office (ILO) entitled its 1995 General Survey on Convention 158 and Recommendation 166 (reproduced as Sch 11 of the Act) as "Protection against Unjustified Dismissal" (emphasis supplied). See also the ILO's 1981 report from its 67th Conference Session entitled "Termination of Employment at the Initiative of the Employer", where reference is made to the requirement to "justify" a termination. At 14 of the 1981 report it is said that: "The requirement of justification for dismissal is here understood to consist of a requirement that an employer must have a valid reason in order to be entitled to dismiss a worker; or, in other terms, a right of the worker not to be dismissed without justification." (Emphasis supplied).

Kerr was also a case subsequent to the decision of the High Court in Victoria v Commonwealth (supra).

At 476 Marshall J continued:

"...a reason which is based on the operational requirements of an undertaking does not thereby become "valid" because of it being so characterised from the subjective view of the employer. The question remains as to whether the employer has satisfied its onus of proof in showing that a reason it alleges to be based on its operational requirements, in fact, was justified or objectively defensible in the circumstances. The Court will in each case determine, in the particular circumstances prevailing, whether any termination alleged to have been taken due to operational requirements was nonetheless effected for a valid reason, ie, one which is defensible or justifiable on an objective analysis of the relevant facts."

See also the judgments of Madgwick J in Cosco Holdings Pty Ltd v Thu Thi Van Do (Madgwick J, 30 June 1997, unreported) and in Gerard Westen v Union des Assurances de Paris (Madgwick J, 17 December 1996, unreported).

In Wadey v YWCA Canberra, (Moore J, 12 November 1996, unreported), the employment of Wadey, it was accepted, had been terminated after an incident in which she, a child care worker at a child care centre, had placed tape over the mouth of a child under her supervision at a time when the child was misbehaving. Moore J noted at 12:

"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 putting it this way I am not attempting to depart from the views expressed by Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373 which have been referred to, with approval, on a number of occasions since. [The director of the child centre] was entitled to view [the applicant's] conduct with the gravity she did. Her decision to terminate was for a valid reason."

The observations of Moore J are particularly relevant to this case. It is not for the Court to decide whether termination should occur or not. If the view adopted by the members of the Disciplinary Tribunal was rational and reasonable, the employer has established a valid reason for the purposes of s 170DE(1). If in fact the members of the Disciplinary Tribunal decided reasonably that the breach of discipline by Ms Hepburn required her dismissal, the decision to terminate was for a valid reason.

The facts of the present case are not seriously in dispute: it is the evaluation of those facts and whether, consistent with the authorities to which I have referred, the respondent has demonstrated that there was a valid reason for Ms Hepburn's dismissal which is critical in this matter. The facts are as follows.

The applicant was employed as a prison officer by the respondent from 1 March 1988 to 31 May 1996. She is now in her early fifties. From 1 March 1988 she spent three months in the respondent staff training college before she commenced employment as a prison officer. By June 1989 she was promoted to the position of senior prison medical support officer and in August 1994 she received a commendation from the Officer-in-Charge of the Metropolitan Reception Prison in relation to the performance of her duties. As Senior Prison Medical Support Officer in D Clinic at Pentridge Prison, she had responsibility for training and supervising prison medical support officers within her jurisdiction. On the evidence before me, the applicant had a consistent and stable work history with the Department.

On 18 September 1994, Darran Jamieson, a prisoner serving a sentence of eight years for manslaughter, was released on parole. That parole period was for two years to 17 September 1996. He was, from the time of his release until the date of termination of Ms Hepburn's employment, a parolee released pursuant to a parole order, and was therefore an "offender" for the purposes of s 3 of the Corrections Act. Prior to his release, Jamieson attended the medical clinic for treatment by Ms Hepburn. On that occasion she gave him her telephone number, and in a statement dated 16 January 1996 forwarded to the respondent by her solicitors, she says that she told Jamieson that she:

"knew his mother and 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."

In her evidence, on various occasions she says that Jamieson phoned her "about a week" or "a couple of days" after his release on parole. The evidence before the court suggests that by at least February 1995 Mr Jamieson resided at her flat at Eltham from time to time, and eventually moved in, and at some stage thereafter commenced a de facto relationship with her. That relationship was and is a continuing one and was current as at 31 May 1996.

On 9 December 1995 there was a police drug raid at Ms Hepburn's residence. A search warrant had been obtained to search the premises for specified illicit drugs. Nothing of that kind was found in the raid although a number of charges relating to prescription drugs was laid some time later in May 1996 against Ms Hepburn, and those charges are contested by her and are presently unresolved. It was the circumstances of the raid by police officers that confirmed that Mr Jamieson was living with Ms Hepburn.

The statement provided by Ms Hepburn dated 16 January 1996 was in the following terms:

"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 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 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 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 it 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. The first I knew that it is a breach of discipline to associate with a person on parole was when I was informed of that fact by Governor Brown on the 9th December when he came to my house in the company of other officers. Further, I deny that I have been involved in any way with the possession, use or sale of illicit drugs. The Search Warrant which was served on me enabled the police to search for Methylamphetamine, Diacetylmorphine, Cannabis and things pertaining to the use of the same. I have never used, sold or possessed any of these drugs. From the nature of the Search Warrant it is apparent that someone is attempting to destroy my career and as a result of the harassment and embarrassment my doctor, Dr Rick Hooper of Main Road, North Eltham has put me on Work Care. Further due to the circumstances of my victimisation and obviously unwarranted allegations I feel that it would be better if I was transferred to another Government Department to work in such areas as the Ambulance Service, Fire Department, Coroners or Department of Agriculture."

By letter dated 12 December 1995, she was directed by the Director of Correctional Services, Mr John van Groningen to take her accrued leave until the investigation into alleged breaches of discipline had been completed. On 8 February 1996, she was suspended from duty with pay, until a decision not to proceed with the disciplinary matters was taken.

Following a hearing at which Ms Hepburn was legally represented, the applicant was charged by the Department with an act of misconduct constituting a breach of discipline under the Public Sector Management Regulations on 25 March 1996. A disciplinary inquiry determined that the applicant had breached the relevant regulation and that the appropriate penalty was dismissal effective immediately from 31 May 1996.

The act of misconduct with which the applicant was charged concerned her "association" with a parolee who was, at the time, attending the Vox Hill Community Corrections Centre. It will be recalled that reg 6D(m) of the Corrections Regulations 1988 forbids staff employed by Correctional Services Division from associating with offenders without the written approval of the Director. As Ms Hepburn's statement of 16 January 1996 makes plain, it was never in dispute that she had "associated" with an "offender" without the written authority of the Director-General. The elements of the charge were accordingly made out. However, a breach of discipline on which the respondent could make a decision to terminate does not necessarily lead to the conclusion that there was a "valid reason" connected with the applicant's conduct for the termination of her employment.

It is necessary to deal at some length with aspects of the Disciplinary Tribunal hearing on 31 May 1996.

In its reasons, the tribunal members said:

"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 (sic) also undermines 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."

I have had regard to the whole of the evidence, and have sadly come to the conclusion that the decision to dismiss Ms Hepburn was not based on a genuine consideration of the circumstances of her case and of a penalty appropriate to those circumstances. The decision to terminate her employment was made in order to avoid the embarrassment in this case which the Department of Justice had experienced in the Heather Parker case. The word "sadly" earlier in this paragraph is intended to reflect my view that the unfair way Ms Hepburn was treated was motivated by a deep desire on behalf of the Tribunal members that the department not be the subject of criticism, to the extent that a rational and objective consideration of Ms Hepburn's breach of discipline, and whether it justified dismissal, was never given.

The evidence before me establishes serious deficiencies in the decision-making process. The nature of the relationship in question, the absence of actual harm to discipline or prison security, the low level of any potential for harm in the circumstances of the case, the good work record and personal qualities of the applicant, the nature and extent of the consequences to her of dismissal, the desirability of parity or equality of treatment with other disciplinary breaches in the prison system, were each given no or scant genuine consideration.

As to the nature of the relationship, it was accepted by Ms Morgan in evidence before me, that the association with which the case was concerned was that of a non-sexual kind, consisting of Ms Hepburn permitting Mr Jamieson to live in her flat. Ms Morgan said that the decision to dismiss was not on the basis that there was a sexual relationship between Ms Hepburn and Mr Jamieson. "I wasn't sure at the time whether it was a sexual relationship or not, and in my mind it didn't matter." This attitude by Ms Morgan really illustrates her formulistic approach to her task, in that it was cut and dried that any association required dismissal. The nature of this association must be contrasted with that of Heather Parker, who, on the material before me, had a sexual relationship with a notorious criminal, Peter Gibb, inside the prison, smuggled explosives into the prison, and participated in the detonation of those explosives so as to enable the prisoner and one other, Archie Buckley, to escape. During the escape, a prison officer was shot. The evidence is unclear as to what happened to Ms Parker as a consequence of her conduct.

In this case, it was accepted by Mr Vincent, who describes his position at the relevant time as Governor in Investigations and Inspection Unit, Corrections, Department of Justice, that there was no suggestion that Ms Hepburn "ferried" anything from Mr Jamieson to prisoners within the gaol. He further accepted that there was no direct breach of prison security as a result of Ms Hepburn's association with Mr Jamieson.

While I accept that any association by a prison officer with a person on parole may have some potential for blackmail of the prison officer, and thus pose some potential threat to prison security, that possibility is, in the circumstances of this case, quite remote, and any threat which could underpin any blackmail would be different in kind to other circumstances.

It cannot be doubted that Ms Hepburn had a good work record as a prison officer. This aspect of the matter, in my view, was treated with derision by Ms Morgan. In her evidence, Ms Morgan, when it was put to her that Ms Hepburn had a good employment history, said:

"On the surface, yes, it is."

She was then asked:

"What does that mean, by the way?"

to which she replied:

"Well, I can only go on what was told to me at the time and I'm saying that on the surface we only get a brief summary."

This grudging attitude not only demonstrated a lack of consideration of relevant factors fairly and objectively, but also a continuing desire to justify the decision to terminate Ms Hepburn's employment, to be effective immediately.

A further aspect of this matter which reinforces that view, concerns the question of the commendation given to Ms Hepburn from the Metropolitan Reception Prison. In a letter dated 15 August 1994, the Co-Manager of the H M Metropolitan Reception Prison, Mr Rod Wise, sent a letter of commendation to Ms Hepburn. The evidence on this aspect of the matter was as follows:

"In August 1994 Ms Hepburn received a commendation from the officer in charge of the Metropolitan Reception Prison in relation to undertaking her duties?---That's right, that's what it says, that's right. Yes. What is a - it is probably obvious, but what is a commendation and when are they handed out in the prison service?---Well, presumably it's a recognition --- His Honour: Sorry, do you know?---Not specifically, no. Mr Priest: All right. Well, how long did you say you have been with the - involved in the prisons?---Prisons specifically since 1989, the Office of Corrections in 1987. You are sitting as a Board of Inquiry?---That's right. You did not know what a commendation was?---I have what I believe is a general understanding of what a commendation is. I don't have specific knowledge about how it's actually derived and where it draws its powers from. Did you not think the fact that she had been commended may have been important to her suitability to remain a prison officer?---It may have done, yes."

Ms Morgan said she did not take any notice of the consequences to Ms Hepburn of dismissal. her evidence included the following:

"Did you not even turn your mind to the question of what would happen to her entitlements if you dismissed her?---No. ... So you did not turn your mind at all to whether or not, for example, it affected her superannuation entitlements?---No, not specifically, no. Or unspecifically?---No. You did not care?---No, it's not that I didn't care. You just did not think it was something you should take into account?---No."

In this case, the ultimate penalty of dismissal was imposed without any submissions by the Department as to the appropriateness of that penalty. There was no suggestion by the Disciplinary Tribunal that it was contemplating dismissal at the time that it retired to consider the penalty that it should impose. It was submitted on behalf of Ms Hepburn that the way the Tribunal conducted itself involved a denial of natural justice.

After the Tribunal announced that it found the charge proven, Ms Morgan said to Mr Milsom, who appeared for the Department:

"Before the Tribunal adjourns to consider penalty, are there any submissions you'd like to make with regard to penalty, Mr Milsom?"

Mr Milsom then made the following submissions:

"Yes, ma'am, the DG's rules really is a prison officer's Bible. It's up to all officers to familiarise themselves with the contents. The offence of ignorance, I believe, is, should not come into play here. It's quite easy for someone when they're caught out breaching any regulations to claim ignorance. I don't believe that washes at all, ma'am. It's a serious offence associating with offenders. It can, or could have led to anything. That's all I've got to say, ma'am."

It can be seen that of the six categories of options available, dismissal was the appropriate penalty.

A solicitor, Mr Woodhams, who appeared for Ms Hepburn at the Disciplinary Tribunal was asked:

"Mr Woodhams, is there anything you would like to put forward in mitigation, anything?"

Mr Woodhams pointed to the fact that the Department had been aware of the association between Ms Hepburn and Mr Jamieson from November 1994, that Ms Hepburn had said in her sworn evidence that she had never been aware of the regulation which forbad associations with persons on parole as opposed to prisoners, and he referred to her untainted record during her lengthy service. The Tribunal members did not at any time before the pronouncement of the decision, indicate that dismissal was being considered as a possibility.

In my opinion, I do not think that there was an obligation on the Tribunal to make explicit reference to the possibility of dismissal as a penalty that would have been considered. No doubt the pronouncement of dismissal as the determination of the Tribunal came as a great shock and surprise to Mr Woodhams and to Ms Hepburn, particularly in the light of the submissions in fact made in respect of penalty by Mr Milsom, but I do not think that the failure expressly to raise dismissal, which was one of the six categories of determinations within the power of the Tribunal to make under reg 38(1) demonstrates a want of procedural fairness.

However, the penalty was objectively unreasonable, a result brought about by the cumulative effect of the deficiencies earlier set out.

Ms Morgan had regard only to the Heather Parker case as being of relevance to Ms Hepburn's. She was asked:

"Did you take into account in reaching your decision any history of other similar cases?---There was one case that was in the mind of the Tribunal when we made our decision in the context of the prison environment. Yes. Which case was that?---That was the Heather Parker case."

In particular, Ms Morgan said:

"We took into account the consequences on the prison service [of the Heather Parker matter]."

She admitted that Heather Parker, a prison officer, had a sexual relationship with Gibb, who was a prisoner in the gaol. [Mr Jamieson, it will be recalled was an "offender" on parole.] She was asked:

"When the sexual liaison was discovered, Heather Parker was not dismissed, was she?"

To which she answered:

"I can't say. I don't know."

And later:

"...was it not the case that Heather Parker, after her sexual liaison with Gibb was first discovered, was it not the case that she was simply transferred?---I don't know. And insofar as you took the Heather Parker case into account, did you bother to inquire as to whether or not she was transferred?---We weren't making a direct comparison. We were considering it in light of the impact it had on the prison service."

In the written determination by the Tribunal, which was signed by both Ms Morgan and Mr Roach, the statement appears:

"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."

Ms Morgan was asked concerning this passage:

"What documents and where are they?"

To which she replied:

"There are no documents that we referred to directly."

Later she was asked:

"Tell us where we would go to find this documented history, if you would be so kind."

To which she answered:

"What I think I was doing or what I knew I was doing at the time was in my mind referring still to the Heather Parker matters in terms of the impact it has on the prison service."

And later:

"When you talk about this type of association again is the only case that you had in your mind the Heather Parker case?---That's right, at the time, yes. Again, at the risk of repeating myself the Heather Parker case was the case where there was sex inside the jail and a break out involving explosives and policemen being shot?---That's right."

She was asked:

"Were you interested in what happened in other cases...?

To which she replied:

"No."

Counsel for Ms Hepburn then asked:

"So there was no thought in your mind that you should apply parity?"---Not in that direct sense, no. No. Well in an indirect sense?---No."

Mr Griffin, the Chief Executive Officer of the Public Correctional Agency within the Department of Justice said that he had no confidence in the ability of Ms Hepburn to do the job of Senior Prison Medical Support Officer, the lack of confidence arising from the fact that she associated with an offender.

Mr Griffin was questioned about what he referred to as "a number of similar cases in the past". He was asked:

"Give us some names and some for instances?---There are cases like Heather Parker. Heather Parker?---Yes."

And the questioning then continued:

"This is a similar case to Heather Parker, you think; do you?---Yes, I certainly do. Do you?---I think it had the potential to compromise the security of the prison. All right. Well, you keep repeating the potential to compromise the security of the prison. This association on the evidence that was presented to the inquiry consisted of Mr Jamieson living apparently at Ms Hepburn's premises. You are aware of that?---Yes, I am. Heather Parker had a sexual relationship with Peter Gibb inside the gaol?---Yes. Heather Parker smuggled in explosives and blew Peter Gibb and Archie Buckley out of the gaol; is that right?---That's correct. Yes, that's correct. And a policeman was shot during their escapades?---Yes, that's correct. And Heather Parker's case, you seriously suggest; do you, is on a parallel with this case?---I certainly do."

A number of instances of sexual relationships between prison officers and prisoners or offenders were put to witnesses called in these proceedings to attempt to demonstrate that the penalty imposed on Ms Hepburn was unreasonable, made without regard to the actual facts and circumstances of her case.

Many of the instances suggested were not known to the witness questioned about them. There were, however, a number of instances in which Mr Griffin acknowledged the nature of the conduct of the prison officer and the nature of the disciplinary result. One of those was the Cavicchioli case, where a prison officer at Dhurringile sent a love letter to a prisoner at Beechworth. She was charged with associating or corresponding with a prisoner and, after a disciplinary hearing, she was transferred. Mr Griffin was also aware of the case of Katrina McLeod, who was transferred to another prison after an allegation that she had had an affair with a prisoner. Mr Griffin also acknowledged the case of a Sylvia Zettleman. He was aware that she was living with a female offender in about 1994/1995; that Zettleman was dealt with by a disciplinary hearing and that she was "not sacked".

As to other penalties that have been imposed in cases of breach of discipline, Mr Morgan said that on one occasion, in respect of three prison officers who had been found guilty by her of assaulting a prisoner, she had imposed a reprimand on one of the officers, and other penalties not involving dismissal on the others. In another case where a prison officer had forged medical certificates for the purpose of getting sick pay, Ms Morgan had imposed a penalty other than dismissal.

There is a lot of wisdom in the pithy statement that the punishment must fit the crime. The notion of equal justice, the idea that unequal treatment under the law is unfair, is a deep-seated tenet of our community. It is reflected in the criminal law, but it is by no means confined only to crime. Mason J in Lowe v The Queen (1984) 154 CLR 606 said at 610-611:

"Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community. And it is against this background that the present application for special leave to appeal - one which reveals an exceptionally glaring example of discrepancy in punishment - has to be considered."

Sheppard J in Trade Practices Commission v Axive Pty Ltd (1994) ATPR [partialdiff]41-368 said at 42,795:

"I see no reason why the principles stated by their Honours in Lowe's Case are not applicable to the circumstances of a case for the recovery of civil penalties."

It is trite that every case has to be decided on its own facts. But the evidence of these five instances, imprecise as it is to detail, lends force to the submission, which I accept, that there was such a disconformity between the actual breach of discipline of which Ms Hepburn was guilty and the penalty imposed on her as to require the conclusion that termination of her employment was not for a valid reason. Mr Parry, for the respondent, made the submission that every case of association with an offender requires dismissal. It is a submission that I simply do not accept.

In my opinion, the admitted breach of reg 6D was not, in all the circumstances of the case when looked at dispassionately and objectively, a basis which justified the dismissal of Ms Hepburn. The decision to terminate Ms Hepburn's employment was not as a result of a proper assessment of Ms Hepburn's conduct: the decision to terminate was based, not on a view that her conduct called for dismissal, but on the incorrect basis that, because the Heather Parker instance of association with a prisoner had occasioned such embarrassment to the Department, any later incident of association, no matter how removed from the features of the Heather Parker case, had to be visited with condign punishment.

The respondent has failed to prove that there was a valid reason for the termination of Ms Hepburn's employment. It was submitted on behalf of the respondent that reinstatement was impracticable.

I have earlier referred to the evidence of Mr Griffin in respect of his claim of loss of confidence and trust.

Section 170EE(1) and (2) of the Act empowers the Court to order reinstatement "if the Court considers it appropriate in all the circumstances of the case" unless "reinstatement of the employee is impracticable".

The meaning of "impracticable" and the principles applicable to matters of trust and confidence, and the proper approach to an employer's claim that reinstatement is impracticable are discussed by the Full Court in Perkins v Grace Worldwide (1997) 72 IR 186 at 189-192.

"Impracticable" does not mean "impossible", yet comprehends more than being "difficult" or "inconvenient".

Notwithstanding Mr Griffin's claim, his evidence generally and his assertion that the case of Ms Hepburn may be equated to that of Heather Parker, in particular, lead me to conclude that his lack of confidence and trust is not soundly or rationally based.

While I acknowledge the importance of confidence and trust, I therefore do not accept that the claimed loss of confidence and trust has a proper basis, and I do not believe that the admitted breach of discipline by Ms Hepburn makes reinstatement impracticable. Ms Hepburn is entitled to an order of reinstatement.

I have had regard to the contents of the last paragraph of Ms Hepburn's letter of 16 January 1996 earlier set out, and it might be possible for Ms Hepburn to consent to employment in another position in Government service, on terms and conditions no less than those that apply to the position to which she is reinstated. That is a matter for her to consider if such a position is offered to her.

I make the following orders.

1. It is declared that the termination of the employment of the applicant by the respondent contravened s 170DE(1) of the Industrial Relations Act 1988.

2. The respondent reinstate the applicant by:

(i) reappointing the applicant to the position in which she was employed immediately before the termination; or

(ii) appointing the applicant to another position on terms and conditions no less favourable than those on which she was employed immediately before the termination.

3. The period between the date of termination and day of her reinstatement be treated as continuous employment of the applicant by the respondent for all purposes.

4. The respondent to pay to the applicant the lost remuneration resulting from the termination of her employment between 31 May 1996 and the date of this decision within fourteen days of the date of these orders.

5. Liberty to apply.