John Ryan v Department of Human Services - [2013] FWC 4060

[2013] FWC 4060

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Ryan
v
Department of Human Services
(U2012/14460)

COMMISSIONER CRIBB

MELBOURNE, 9 JULY 2013

Application for unfair dismissal remedy.

[1] This decision concerns an application by Mr John Ryan (the applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). It is alleged that the termination of his employment by the Department of Human Services (the respondent) (the Department) was harsh, unjust and unreasonable. Mr Ryan is seeking a remedy in respect of his dismissal.

[2] The application was subject to conciliation but was not settled by the parties. The arbitration hearing was on 8 March 2013. Written closing submissions were filed on 28 March 2013 on behalf of the applicant. Written closing submissions on behalf of the respondent were provided on 18 April 2013. Written submissions in reply on behalf of the applicant were received on 26 April 2013.

[3] During the hearing, evidence was given by Mr Ryan. On behalf of the respondent, Mr F Biagi, Manager, Human Resources for Youth Justice Custodial Services, Mr R Long, Manager, Business Services Unit for Secure Services and Mr J Leechman, Facilities Team leader, Youth Justice Custodial Services gave evidence.

[4] Mr Ryan was represented by Ms B Meyers, of Counsel and the respondent by Ms C Symons, of Counsel.

THE EVIDENCE

A. Applicant

[1] Mr Ryan gave oral evidence and also provided a written statement. 1

[2] It was Mr Ryan’s evidence that, although his job title was Fire, Safety and Security Co-ordinator (FSS Co-ordinator), his role was more facilities management. This included co-ordinating contractors to performing repairs and other work on site, the provision of keys, etc and monitoring the fire system. 2

[3] Mr Ryan indicated that his job was at a supervisor’s level. He explained that one of his responsibilities was to train staff in the usage of swipe cards. It was stated that he was not required to train staff in occupational health and safety. Mr Ryan said that he had limited knowledge of the operation of that legislation. 3

[4] It was stated by Mr Ryan that he reported to Mr Leechman who divided his time between Parkville (2 days a week) and Malmsbury. 4

[5] With respect to contractors, Mr Ryan explained that he spoke to them on the telephone to see if they were capable of doing the work. He indicated that he logged the jobs performed by contractors and agreed that he was aware of the type of work that contractors were being engaged to perform. 5 Mr Ryan explained that there were two employees in this role - himself and Mr Duckworth6 and that they both worked the same hours. It was stated that Mr Duckworth had only been in the position about 6 - 7 months and that he (Mr Ryan) was training him. Mr Ryan indicated that Mr Duckworth was a little bit slow in learning the different computer processes.7

[6] Mr Ryan recalled that he was under stress at the time of the incident due to his work colleague interfering with his work all the time and also the training of Mr Duckworth. He stated that he had spoken to Mr Long about it and that there was a meeting with Ms Livis to try and resolve it. However, it was not resolved. 8

[7] Reference was made by Mr Ryan to specific projects which he was handed in addition to his normal workload and training Mr Duckworth. The two projects mentioned were changing all the bedroom doors over to proper jail doors and checking the CCTV’s for damage only every morning. Mr Ryan explained that he was training Mr Duckworth to do the CCTV job but that Mr Duckworth did not have access to it at the time. 9 With respect to the new jail doors, it was recalled that he had told Mr Stratford of the pressure he was under and that he did not have time to try and do everything else plus the new jail doors as well.10 In addition, the single entry point (SEP) was handed over to him without any training on where the fire systems were or where the IRIS scan was etc. He said that this involved a lot of maintenance work for something he knew nothing about. 11

[8] Mr Ryan indicated that he had spoken to Ms Livis on a number of occasions about needing support and explained that he was also trying to seek help through the EAP. 12 He said that Ms Livis had provided a good source of support in the work environment.13 Mr Ryan explained that he had refused to sign the consent form for the Department to contact his psychologist because he was dealing with non-work issues and did not want the Department to contact the psychologist at that stage. It was recalled that the psychologist had advised him that he did not recommend disclosing any information at that point. It was stated that the psychologist was in hospital and so was unavailable to give evidence.14

[9] It was explained by Mr Ryan that, after seeing the footage of incidents at the jail, he was, and still is, deeply affected by the incidents. However, as he was not on the operational side, he had not been offered a debriefing session and had been left to struggle on, relying on his wife for support. 15

[10] Mr Ryan acknowledged that relevant new legislation, policies and procedures were communicated to him by email. He stated that he was so busy with emails that he did not have a chance to read every one. 16

[11] It was Mr Ryan’s evidence that, sometime in late July 2012, he became aware of a rumour that razor wire was going to be installed around the perimeter. 17 He denied that Mr Leechman had asked him to get quotes for razor wire. He said that he had no knowledge of a discussion involving himself, Mr Duckworth and Mr Leechman during which Mr Leechman had said that he had received instructions to obtain quotes on the possible installation of razor wire at the facility. He had no awareness of contractors being asked to quote or being approached for that job. He was also unaware that Mr Duckworth had arranged for access for one of the contractors to the facility. He stated that no one had mentioned razor wire to him during this process.18 Mr Ryan recalled that he told Mr Robinson, when they were inspecting the enclosed raceway, that maybe razor wire needed to be put up in a few places.19

[12] Mr Ryan confirmed that he was charged by the police for breaching the Children, Youth and Families Act 2005 by disclosing information to do with security measures at the Parkville precinct. 20 It was stated by Mr Ryan that he now knew that, when he made the phone call, he had also breached the Department’s Code of Conduct.21 He confirmed that he had admitted making the phone call and that the information that was disclosed he had obtained at work.22 He was given a diversion notice by the Magistrate and was required to be on good behaviour and was to write a letter of gratitude to the Police Officer. Mr Ryan indicated that he had already written a letter of apology to Mr Lanyon on 18 September 2012 as part of the disciplinary process.23 It was explained that his solicitor had assisted him in the writing of the letter because he had wanted it to be sincere.24 He stated that he had received a notice of completion of the diversion programme.25

[13] Mr Ryan explained that what had happened was that he had had a meltdown due to the workload which included responsibility for looking after return to work people. He said that a number of these people had psychological issues (threatening suicide) and that he had not been trained to deal with this. It was stated that this was affecting his health and his family. 26

[14] With respect to making the call, Mr Ryan believed that it was an act of stupidity. 27 He said that he had admitted that he had telephoned 3AW to get the razor wire installed which would stop the community being at risk through escapes.28 Mr Ryan stated that it was a poor judgment error on his behalf and that he was very remorseful about what he had done.29

[15] During cross examination Mr Ryan acknowledged that the work (custodial) environment was one where security was of the utmost importance. He agreed that he had a fairly intimate knowledge about some of the incidents that had occurred and also of some of the measures taken after these events. It was stated that he had organised contractors to undertake the required work. 30

[16] In terms of the radio station 3AW, Mr Ryan indicated that he listened to it on and off and that he flicked from one station to another. He said that he liked Rees and John, the presenters who host The Rumour File, during the breakfast programme on 3AW. 31 It was agreed that The Rumour File runs for a reasonably short period of time and that members of the public are invited to call in anonymously. Members of the public ring in and provide information about something they have heard which might be of interest and which would attract the public’s attention (be slightly sensational).32 Mr Ryan thought that a prize was offered for the best callers of the day and of the week.33

[17] It was recounted by Mr Ryan that, when he rang 3AW on 1 August 2012, he spoke to someone on the switchboard and said that they were going to put razor wire up at the kiddie jail in Parkville. It was recalled that that he was about to hang up the call when he went to air. He did not know how long he was on the line before he was put through but said that he did not have any time to think about what it was he was about to do. 34 He had then told the announcers that they were going to put razor wire up down at the Youth Detention Centre.35

[18] Mr Ryan explained that he made the call because, if they were going to put razor wire up, it would be a good thing to keep the clients from escaping. 36 He said that he was pleased if they were going to go that way (put razor wire up) and that he rang to express his excitement about the Department’s journey.37 This journey was said to have commenced with the single entry point into the centre followed by the IRIS scan.38 It was stated that he thought that, by making the call, he would instigate razor wire being installed.39 This was because he felt that something needed to be done as there were serious escapes with people getting hurt or attempted escapes.40 Mr Ryan explained that, having seen the damage/pain of staff members impacted by the escapes, he did not want to see that repeated out in the public arena.41

[19] It was explained by Mr Ryan that the reason he rang 3AW was in the hope that the Department would go somewhere with it because, at his level, he could not go to a Director and make those recommendations. He recalled that he had said it to the Assistant Director Mr Robinson, on the day, but it was a throwaway comment because he did not get any response. He said that he let it be until he got on 3AW and then “...made a mess of it for myself.” 42 It was agreed that he had rung 3AW to put pressure on the Department to install razor wire.43

[20] Mr Ryan stated that he made up the bit about the razor wire being installed. This was because he had no knowledge of razor wire going up nor any proposal to do so. He believed that it was contrary to the Children, Youth and Families Act2005 to put razor wire up. 44 He said that it was all his own idea about the putting up of razor wire.45

[21] Later on in his evidence, Mr Ryan stated that the issue of installing razor wire had been discussed for a number of years, starting in 1986, but that nothing had been done. He said that he had taken it upon himself through stupidity and had rung 3AW. It was explained that he wanted the Department to hear it so that they would put razor wire up to stop the clients from escaping. 46 Mr Ryan acknowledged that, in his witness statement, he had said that he became aware of a rumour about the installation of razor wire sometime in late July 2012.47 He explained that, by “rumour”, he meant that there had been discussion over a number of years about the installation of razor wire.48 He said that he had no idea where he got the date from.49

[22] Mr Ryan, in his written response to the allegations, agreed that he had said that there was a “mooted addition of razor wire”. 50 In reconciling all of this, Mr Ryan said that it had been discussed among staff at the floor level. However, he explained that he ran with the idea of going to 3AW by himself because he thought it would be a good way to force the Department’s hand. This was because the idea had been around for a lot of years but no one had done anything about it.51 It was stated by Mr Ryan that he had hoped that this would be the outcome of the phone call.52 He said that he had thought that, if someone heard it on 3AW, they would act upon it.53

[23] It was further indicated that someone had told him something at work (a rumour) and that he had run with it to 3AW. 54 He said he was unsure as to whether it was said during the conversation with Mr Lanyon and Mr Robinson.55 In the end, Mr Ryan indicated that, in his mind, all of the different bits of his evidence married into each other.56 Finally, he said that his evidence was as per his witness statement - that he heard a rumour in late July 2012 that razor wire was going to be installed.57

[24] It was Mr Ryan’s evidence that, after he had hung up from 3AW, he thought that that was an absolutely stupid act. He recalled hoping at the time that no one from the Department had heard it. He recalled that, 3 minutes after he had made the call, he was in his office and Mr Stradford had come in and said that someone had been heard talking about razor wire on The Rumour File. 58 Mr Ryan explained that his reaction was fear because he did not know what the outcomes were going to be. He thought that he would get a first and final warning.59 He agreed that his stupidity was due to his disclosure relating to a Departmental security proposal.60

[25] With respect to the work he had obtained since his dismissal, Mr Ryan outlined what that had been. In addition, he explained the jobs he had applied for. He indicated that his applications had been unsuccessful. 61 It was stated that he had obtained some casual grounds maintenance work and that there was some discussion about a full time position.62 Mr Ryan stated that he would love to go back to his job as it was his life. He said that he had worked hard to build the job up to what it was.63

B. Respondent

(i) Mr Biagi

[26] Mr Biagi provided a witness statement 64 and also gave oral evidence. He commenced as Acting Manager, Human Resources for the Youth Justice Custodial Services on 13 August 2012. It was Mr Biagi’s evidence that he had started in the role after the disciplinary process with Mr Ryan had commenced.65

[27] It was stated that his role was as the liaison person with regard to this disciplinary process and to provide procedural human resources support. This was stated to involve supporting the relevant managers through the process and participating in the preparation of the content of letters and recommendations. 66

[28] Mr Biagi recalled that the disciplinary process regarding Mr Ryan commenced under the Victorian Public Service Agreement 2006 (2009 extended and varied) (the VPS Agreement). This was changed on 26 August 2012 to it being dealt with under the new rules (the Victorian Public Service Workplace Determination 2012) (the VPS Determination). Mr Biagi indicated that there was not a significant difference between the two disciplinary processes. It was explained that, under the new rules, there was no longer a requirement for there to be a show cause meeting. The delegate was able to make a decision on the papers. 67 He agreed that the old rules required that the employee be provided with the allegations in writing (done on 8 August 2012) and that a person would be appointed to conduct an investigation into the allegations made against the employee.68 During re-examination, Mr Biagi agreed that there was no difference between the two processes with respect to, once the employee makes the admission, the employer may proceed to the misconduct outcome stage.69

[29] Mr Biagi stated that there was no investigation and that no one was appointed to investigate. 70 This was said to be because they were waiting on a response from Mr Ryan to the written allegations.71 During re-examination, Mr Biagi indicated that, as Mr Ryan had admitted the allegations, there was no need for an investigation.72 Further, Mr Biagi agreed that, between 8 August 2012, when Mr Ryan receive the allegations in writing, and the meeting on the 31 August 2012, when he admitted the allegations, the Department did not know that Mr Ryan was going to admit to the allegations. During that period, it was recalled that the Department was waiting for a response from Mr Ryan. He agreed that the Department waits until they get a response to the allegations and then they make a decision as to whether they should commence an investigation. As far as Mr Biagi knew, this was normal practice under the old system (the VPS Agreement).73 It was said that, as Mr Ryan had made admissions during the meeting on 31 August 2012, the Department could proceed to determination without the need for an investigation.74

[30] It was explained that Mr Long and Mr Robinson met with Mr Ryan to speak about the alleged misconduct. 75 Mr Biagi confirmed that there were no admissions by Mr Ryan as at the date of the letter setting out the allegations (8 August 2012).76

[31] Mr Biagi confirmed that he had advised Mr Long to obtain information about the mitigating circumstances that Mr Ryan had put forward and to take all of that information into account. 77 With respect to the mitigating circumstances put forward by Mr Ryan, it was Mr Biagi’s recollection that he had referred to a psychologist during the meeting on 31 August 2012. He said that he was aware of theoffice stress that Mr Ryan said that he was under at the time. However, he was not aware of any other mitigating circumstances other than what was in Mr Ryan’s statutory declaration of 16 August 2012.78 Mr Biagi did recall advising Mr Long to get consent from Mr Long to talk to his psychologist.79 He stated that he had not investigated any of the mitigating circumstances that Mr Ryan had put forward during the meeting on 31 August 2012.80

[32] It was explained by Mr Biagi that he was asked for advice regarding Mr Ryan but said that he did not participate in the decision-making. He indicated that Mr Ryan’s Line Manager had asked his advice and had then made his own decision about recommending Mr Ryan's dismissal. 81 Mr Biagi indicated that he thought that Mr Ryan had forwarded a statutory declaration plus another response dated 5 October 2012 as his submissions to Mr Lanyon, the delegate. However, it was stated that he was on leave at the time they were sent to Mr Lanyon. He also indicated that he could not see on the 5 October 2012 document where it said that they went to the delegate.82

(ii) Mr Long

[33] Mr Long is the Manager, Business Services Unit for Secure Services with the Department. He provided a witness statement 83 and also gave oral evidence.

[34] It was Mr Long’s evidence that he commenced his involvement with Mr Ryan’s disciplinary matter on 14 August 2012 following a handover from Mr Barresi. 84 He explained that he had liaised with Mr Biagi about the procedures that would be in place going forward. This included familiarising himself with the VPS Agreement. He stated that he did not understand that the process in the VPS Agreement included an investigation in cases of alleged misconduct. It was recalled that he was liaising with Mr Biagi and taking advice from him on the specifics of the VPS Agreement.85 Mr Long confirmed that Mr Ryan had already been suspended with pay pending the process taking its course. He agreed that the allegations had been put to Mr Ryan in writing by way of a letter dated 8 August 2012.86

[35] With respect to the next step in the process (an investigation), Mr Long indicated that a person was not appointed to conduct an investigation. He explained that he met with Mr Ryan but did not appoint an external investigator nor have an investigation. 87 It was stated that he had discussed with Mr Biagi about what the process should be. It was recalled that they had determined that there would be a meeting with Mr Ryan, to which he could bring a support person, where he would have the opportunity to respond to the allegations.88 Mr Long had then telephoned Mr Ryan on 24 August 2012 to notify him of the meeting.89

[36] It was confirmed by Mr Long that he had not been involved in framing the allegation but held the view that the way the allegation was framed was appropriate. 90 He explained that the primary issue was what had occurred rather than where it had occurred. It was stated that he did not recall Mr Ryan denying that he was on duty when he made the call. He indicated that he did not know where Mr Ryan was when he called 3AW and did not recall asking him.91 Mr Long stated that he had received a statutory declaration from Mr Ryan at the meeting. He said that he now knew that the statutory declaration stated that Mr Ryan had made the call whilst driving to work. It was confirmed that Mr Ryan had not admitted that he had made the call from work. Mr Long agreed that it was now not being alleged that Mr Ryan made the call from work.92

[37] Mr Long agreed that, during the meeting on 31 August 2012, Mr Ryan had raised a number of matters in relation to his circumstances at the time he made the call. 93 He said that Mr Ryan had raised workload as an issue he was dealing with at the time. Mr Long indicated that he did not find this worrying.94 In addition, Mr Long confirmed that Mr Ryan had raised issues regarding the effect that the incidents had had on him. He stated that Mr Ryan had told him that they had had a profound effect on him and the nature of that effect.95 It was recalled that Mr Ryan had not seemed to be in a bad way at the meeting. Mr Long agreed that his notes of the meeting recorded that “remorse is real”.96 It was stated by Mr Long that he had not sent his notes of the meeting of 31 August 2012 to Mr Ryan. He did not recall if he had discussed his notes with Mr Robinson.97

[38] Mr Long confirmed that he had attempted to speak to the psychologist. 98 He stated that he had an understanding of Mr Ryan’s workload because Mr Ryan was a member of his team. It was said that Mr Ryan had stated that he had a significant workload. However, it was Mr Long’s evidence that there was no need to discuss the issue regarding Mr Ryan’s workload with other people.99 He stated that what Mr Ryan was saying about his workload had merit but that there were some things that Mr Ryan had said that he did not agree with. Mr Long indicated that he had not said that to Mr Ryan. He explained that this was because he did not think that it was an opportune time to tell Mr Ryan that he did not accept what Mr Ryan was putting to him about his stresses. It was confirmed by Mr Long that there never was such a time.100

[39] It was recounted by Mr Long that, after the meeting on 31 August 2012, he had typed up his notes of the meeting. However, he had not put “termination” as the proposed outcome at that stage. It was said to have been added later (on 4 October 2012). He confirmed that the document was not sent to Mr Ryan. 101 At a time close to 4 October 2012, Mr Long stated that he had come to a decision that the proposed outcome should be termination.102 Between 31 August 2012 and 4 October 2012, Mr Long recalled that he tried to contact the psychologist but that Mr Ryan did not sign the consent form.103 He had consulted with Mr Biagi regarding the process. It was agreed that he did not make enquiries about the other mitigating factors that Mr Ryan had put to him. After receiving Mr Ryan’s e-mailed response on 3 October 2012, it was explained by Mr Long that he had then made the decision regarding termination, following consultation with Mr Biagi.104

[40] Mr Long confirmed the recommendation to the delegate, Mr Lanyon. He did not think that Mr Ryan was sent a copy of it. It was stated that he had not written to Mr Ryan to indicate that the process was that both parties make written submissions to the delegate. Mr Long indicated that Mr Ryan did not e-mail the delegate but rather himself and two other people. He confirmed that Mr Ryan had e-mailed him the letter of apology but he could not recall whether it had been included in his recommendation to the delegate. 105

[41] It was Mr Long’s view that it was important to know how Mr Ryan came upon the information regarding the razor wire. He indicated that this was not raised with Mr Ryan during the meeting on 31 August 2012. 106 In his witness statement, Mr Long stated that he did not recall Mr Ryan stating (as alleged), during the meeting on 31 August 2012, that the information he had conveyed to the radio station was a rumour.107 Mr Long said that he had not looked at Mr Ryan’s personnel file and employment record.108 It was confirmed that Mr Ryan had genuinely conveyed remorse for what he had done and that he had explained how it would inform and shape the way he conducted himself going forward.109

(iii) Mr Leechman

[42] Mr Leechman is the Facilities Team Leader with the respondent. He provided a written statement 110 and gave oral evidence.

[43] It was Mr Leechman’s evidence that Mr Ryan, as part of the team, provided operational input into the design of the single entry point (SEP). 111 He explained that, in terms of additional workload, the team was available to provide input whilst balancing the operational needs of the Centre.112

[44] With respect to the CCTV work, it was explained by Mr Leechman that the team had some operational input into the design but it was not significant. As at July/August 2012, once the system had been installed and tested, it was stated that a procedure was introduced whereby Mr Ryan was to undertake a daily check of the cameras to ensure they were operating as required. He said that this would take about 15 - 20 minutes. 113

[45] Mr Leechman stated that, during June/July/August 2012, the job was very busy but that, being in facilities and maintenance, the workload fluctuated. 114 “It's the unknown.”115 It was his view that, with the normal workload, plus the extra building plus the CCTV - in the context of the day to day stuff, it was manageable.116 He confirmed that, at Parkville, there were two full-time FSS Coordinators plus himself two days a week (12 man days per week).117 It was explained that he also worked at Malmsbury where there was another FSS Co-ordinator. He explained that he dealt with FSS matters across both Parkville and Malmsbury. When in Malmsbury, Mr Leechman indicated that he would be liaising/conversing with Parkville. He stated that he would contact the Parkville Centre each morning to see what was happening. It was said that there may have been an additional one or two calls but not many as the staff in both centres were very competent.118 Mr Leechman explained that he supervised 14 - 15 employees and was responsible for a range of tasks other than supervising the FSS Co-ordinators in both centres.119 This included managing the essential services contract, approving all contracted works (as the only person with this delegation) and managing the gardeners.120 It was said that there were peaks and troughs with some exceptionally busy weeks and weeks when the workload would be a bit less.121

[46] In terms of Mr Duckworth, Mr Leechman explained that he began in April 2012 and that he was relatively new to the field. He stated that Mr Ryan’s role was to train and mentor Mr Duckworth. 122 It was Mr Leechman’s view that Mr Duckworth was quite a competent person. It was recalled that, after a month, Mr Duckworth was pretty capable of carrying out most of his functions.123

[47] With respect to whether Mr Ryan had expressed any concern about his ability to get all his work done, Mr Leechman explained that the team used to have general conversations about how busy it was. He could not recall Mr Ryan directly raising a major concern with him. 124

[48] Mr Leechman recalled that the escape in June 2012 and the later attempted escapes created additional work pressures as there was a further review of existing security arrangements. He stated that in June/July 2012, there was a pressing need to complete some of the remedial works, some of which were at the team’s initiative. 125 The arrangements regarding contractors were outlined.126

[49] It was stated by Mr Leechman that he did not know that Mr Ryan was to be stood down prior to it occurring. Mr Leechman recalled that Mr Ryan had telephoned him and told him that he was being stood down with pay. He said that he was not privy to, nor involved in, the disciplinary process. 127

[50] With respect to a meeting with Mr Ryan and Mr Duckworth regarding arranging for razor wire quotes, it was Mr Leechman’s written evidence that he had been instructed by Mr Lanyon, towards the end of July 2012 to investigate the possibility of installing razor wire. 128 He then spoke with Mr Ryan and Mr Duckworth about this. Mr Leechman confirmed that he had come into the office and explained that they had been instructed to look at the feasibility of installing razor wire.129 It was recalled that he had arranged for a contractor to attend at Parkville to provide a quote. Following this, Mr Leechman had e-mailed Mr Duckworth to advise him of the contractor’s visit so that he could make the necessary arrangements.130 It was explained that he had made arrangements with a contractor but that he did not attend at the site.131

[51] In his witness statement, Mr Leechman explained that, whilst he did not instruct Mr Ryan or Mr Duckworth that the information about the possible installation of razor wire was confidential and not to be disclosed, it was clear in his mind that it was information which should not be disclosed except on a need-to-know basis. Therefore, he disagreed that the information was in the nature of a rumour. 132

SUBMISSIONS

A. Applicant

[52] On behalf of Mr Ryan, Submissions, 133 Further Submissions134 and Further Submissions in Reply135 were provided.

[53] It was submitted that, as at 1 August 2012, there were a number of significant work factors which were causing Mr Ryan to be considerably stressed. These were said to be:

● Mr Ryan was profoundly affected by the recent/attempted escapes from the Centre. He was not offered counselling as other staff were. 136
● Mr Ryan was responsible for a number of employees who were on return to work plans, some of whom had psychological issues. 137
● The escape/attempted escapes had resulted in some security upgrade measures becoming particularly urgent which added to Mr Ryan’s workload pressures. 138
● Mr Ryan had suffered work stress over a sustained period as a result of a co-worker’s conduct. 139
● Mr Duckworth was new in the role and Mr Ryan was responsible for training him. This took time and, as Mr Duckworth was not yet up to full speed, additional responsibility fell to Mr Ryan. 140
● A number of additional programs were assigned to Mr Ryan (SEP defects, bedroom door upgrade and the CCTV) which significantly added to his workload. 141

[54] In the Further Submissions in Reply, it was argued that an assessment of the context in which Mr Ryan’s conduct occurred is entirely proper and that it should have been undertaken by the Department as part of the disciplinary process. 142 It was contended that the argument that such an assessment requires evidence from medical professional was unsupportable. Rather, Ms Myers argued that Mr Ryan’s evidence and demeanour are of considerable assistance to the Commission in forming a view about the context in which the conduct occurred.143 In addition, it was submitted that Mr Ryan’s evidence as to the effect on him of the escapes, his responsibility for return to work employees and the impact of the conduct of a co-worker were not challenged by the Department.144

[55] As well, it was said that, following Mr Ryan’s statement during the meeting on 31 August 2012 that he was under pressure at the time of making the call, the Department did not investigate the situation. 145 Finally, in terms of Mr Ryan’s workload, Ms Myers stated that the respondent was relying on Mr Leechman’s general comment that Mr Ryan’s workload at the time was manageable. It was argued that Mr Leechman was not asked about Mr Ryan’s workload during the disciplinary process and that Mr Long’s witness statement did not address that issue either.146

[56] Ms Meyer stated that Mr Ryan had never denied making the call to 3AW:

In his statutory declaration of 16 August 2012, Mr Ryan had expressed devastation and remorse at having breached the Department’s trust.

During the meeting on 31 August 2012.

In his apology letter to Mr Lanyon, Mr Ryan sincerely and unreservedly apologised for his behaviour.

During the unfair dismissal hearing. 147

[57] Further, it was contended that Mr Ryan made the call in the context of very significant stressors. Ms Myers argued that the call was a single error of judgement in a very long and exemplary career with the Department. Mr Ryan’s intention was said to not have been to compromise security at the Centre. Rather, he had hoped (misguidedly) that the call would make the installation of the razor wire more likely to happen so that no further staff nor members of the public would be at risk from further escapes. It was highlighted that Mr Ryan regretted making the call as soon as he had made it and fully accepted that what he had done was wrong. 148

[58] In assessing whether Mr Ryan’s action provides a valid reason for his dismissal, it was submitted that making the call was at the lower end of the range of conduct covered by the Children, Youth and Families Act 2005. 149 This was said to be supported by the fact that Mr Ryan was placed on a diversion plan by the Magistrate.150 Further, it was argued that the confidential information divulged was in respect of an increase in security. The fact that there was no razor wire was said to have been available to anyone who looked at the Centre’s fence.151 The Department was said to have admitted that there was no identifiable security consequence arising from Mr Ryan’s conduct.152

[59] Further, the applicant submitted that, although Mr Long gave evidence that it was important have Mr Ryan came by the information, he did not raise this with Mr Ryan during the meeting on 31 August 2012. It was argued that, because this aspect was not investigated in any way during the disciplinary process, suggested that it was not of importance to the Department or that the Department had made assumptions about that which were not communicated to Mr Ryan. 153 In addition, it was indicated that the actual consequences to the Centre of what Mr Ryan did appear to have been minimal.154

[60] It was said to have been accepted by Mr Ryan that the possibility of the installation of razor wire was something he had heard at work. 155 It was said to have been a topic that had been bandied about for some years. As well, it was something he had mentioned to Mr Lanyon and Mr Robinson in about July 2012.156 It was argued in the Further Submissions in Reply that there is no evidence that Mr Ryan knew of the audio recording or that at least three employees had identified his voice. Ms Myers stated that the contention by the Department that this reduced the applicant’s credit regarding his early and frank admission was unfair.157

[61] Ms Myers submitted that Mr Ryan was not part of a conversation with Mr Leechman regarding obtaining quotes for the razor wire. It was argued that Mr Leechman was not asked about this at the time of the disciplinary proceeding. Further, it was recalled that Mr Leechman’s evidence was that he was first asked about this in December 2012/January 2013, in the preparation of his witness statement for the hearing. 158

[62] In terms of Mr Leechman e-mailing Mr R Duckworth, it was contended that, although Mr Leechman’s evidence was that he had done this around 30 July 2012, the only e-mail produced was dated 6 August 2012. 159 Further, it was submitted that the Jones v Dunkel inference should be drawn from Mr Duckworth’s non-appearance at the hearing. This was said to be because Mr Duckworth’s evidence would not have assisted the Department’s case.160 In the Further Submissions in Reply, the applicant objected to the Department attempting to lead evidence regarding its decision not to call Mr Duckworth. It was stated that the Department had led evidence about an alleged meeting involving Mr Duckworth, Mr Ryan and Mr Leechman. This was said to be a clear case for a Jones v Dunkel inference.161

[63] Ms Myers also argued that Mr Ryan was a witness of truth but that he was confused as to some of the circumstances regarding the events of late July 2012. The Department’s case was said to not be that razor wire was going to be installed. Rather, it was that the cost of installation was being investigated. It was stated that Mr Ryan’s answers about his statement that razor wire was going to be installed should be looked at in this context. Ms Myers submitted that, on any view, Mr Ryan had no information that it was to happen. 162

[64] With respect to the various procedural aspects of this case and the remedy sought, Ms Myers addressed these in detail in the initial Submissions, 163 the Further Submissions164 and the Further Submissions in Reply.165 These submissions will be dealt with later in the decision.

B. Respondent

[65] On behalf of the Department, it was submitted by Ms Symons that Mr Ryan rang The Rumour File segment on 3AW on the morning of 1 August 2012. It was stated that he made the call on his Department supplied mobile phone either at work or on his way to work. During the call, Mr Ryan had said, in essence, that they were going to put up razor wire at the Youth Training Centre in Melbourne. It was said that the phone call to 3AW was made against the background of a series of recent incidents involving escapes or attempted escapes from the Parkville precinct. The respondent stated that, as a direct response to the security breaches, the Department arranged for the installation of razor wire to sections of the perimeter fencing. It was argued that Mr Ryan was privy to information concerning this measure as he had responsibility for dealing with contractors who were asked to quote for the job. 166

[66] After receiving credible reports about the 3AW call, the Department were said to have made enquiries and it appeared to have been Mr Ryan who had made the call. By letter on 6 August 2012, Mr Ryan was directed to stay away from work whilst the Department examined the matters of concern. 167 On 8 August 2012, Mr Ryan was advised in writing of an allegation regarding the 3AW phone call and was given an opportunity to provide a response. A meeting was held on 31 August 2012 to provide Mr Ryan with an opportunity to present his case against the allegation. Mr Ryan was said to have attended with a support person and he gave the Department a statutory declaration. It was argued that, in the statutory declaration, Mr Ryan had admitted making the call to 3AW.168

[67] The Department contended that, as a result of Mr Ryan’s admission, it was entitled to progress directly to the discipline outcome determination stage. It was stated that it was therefore not necessary to appoint an investigator to determine independently whether Mr Ryan had made the call to 3AW. 169 On 24 September 2012, it was recounted that the Department informed Mr Ryan that it proposed to terminate his employment and invited a response by 1 October 2012. The Department agreed to an extension of time for the response - to 3 October 2012.170 After considering Mr Ryan’s response, it was stated that Mr Long had recommended dismissal as the appropriate disciplinary outcome. On 11 October 2012, it was recounted that Mr Lanyon advised of the termination of Mr Ryan's employment. In reaching this decision, it was indicated that Mr Lanyon had taken into account the seniority and the nature of Mr Ryan’s role. He had also considered the nature and seriousness of the breach which could have caused a serious risk to the health and safety of the clients, staff and members of the public.171

[68] In making the 3AW phone call and disclosing information about a proposal by the Department to install razor wire at Parkville, it was submitted that Mr Ryan's conduct amounted to serious misconduct. Further, Mr Ryan’s conduct was in breach of the Department’s Code of Conduct and Operations Manual, as well as the Department’s Values of Professional Integrity and Respect and section 492A of the Children, Youth and Families Act 2005. The respondent contended that each of these documents prohibited the unauthorised disclosure of confidential information, albeit in subtly different ways. 172 It was stated that the Department’s policies were a reasonable reflection of, and a proportionate response to, the Department’s obligations as a provider of custodial service to young people.173

[69] It was submitted that the Commission should reject Mr Ryan’s attempt to characterise the information he disclosed as a “rumour”. The Department argued that Mr Ryan had never put forward this explanation during the disciplinary process and contented that it was information that Mr Ryan acquired as a result of his position. 174 It was stated that, even taking Mr Ryan’s explanation at its highest, it was a serious error of judgement and an act of disloyalty by a senior employee who was, or ought to have been, well aware that such information was a matter of the utmost confidentiality.175

[70] With respect to the applicant’s contention that the factual background against which his action should be viewed included significant work pressures resulting in him being considerably stressed, the Department argued that caution should be applied to this approach. The reasons for this were:

● There is no evidence of any medical professional attesting to the applicant’s state of mind when he made the phone call. 176
● During the disciplinary process, the Department attempted to make contact with the psychologist but the applicant refused to provide consent as he did not want this to happen. 177
● The applicant has not provided evidence from a psychologist or other medical professional during the hearing. Further, Mr Ryan’s demeanour during the hearing does not assist with respect to an event that occurred seven months previously. 178

[71] In addition, the Department argued that the alleged cause of any stress requires careful scrutiny. It was contended that, during the disciplinary process, Mr Ryan identified three matters as sources of stress - the SEP project, the bedroom door upgrade and the training of Mr Duckworth. The respondent held the view that it was open for the Commission to find that Mr Ryan has overstated his responsibilities for these projects and therefore the impact they had on his state of mind. 179 Mr Leechman’s evidence was highlighted with respect to the training of Mr Duckworth and the applicant’s workload.180 Further, Ms Symons referred to Mr Ryan’s evidence where he said that he had found Ms Livis to be a good source of support.181 In summary, it was argued by the Department that there was nothing exceptional about the work being performed by Mr Ryan around or at the time he made the phone call.182

[72] Whilst Mr Ryan had never denied that he made the phone call to 3AW, it was the Department’s view that it was never a realistic option for him to do otherwise. This was because Mr Ryan’s voice was readily identified by at least three employees. 183

[73] Further, the Department argued that Mr Ryan’s account of the characteristics to be attributed to the information he disclosed had changed significantly over time. This was said to be on the basis that, during cross-examination, Mr Ryan said:

● When he called the 3AW switchboard, he told them that they were going to put razor wire up at the kiddy jail in Parkville;
● He later said that he had made up the installation of razor wire because he wanted it to go ahead to stop the escapes;
● Nothing was ever said to him at work about a proposal to put up razor wire.
● The installation of razor wire was a rumour created by himself;
● He could not recall where the date in his statement (July 2012) came from in terms of when he became aware of the rumour;
● He agreed that he had heard/was told at work that there was a proposal to install razor wire;
● He could not rule out the possibility that he had heard the proposal from Mr Duckworth; 184
● Ultimately, he had agreed that the information had been obtained at work and that, in making the phone call, he had disclosed information regarding a Departmental proposal concerning a security measure. 185

[74] The Department argued that Mr Ryan may have been confused but that it was as a result of his efforts to downplay the level of his culpability in making the phone call. The result of this was said to be that Mr Ryan was unable to provide consistent evidence as to where and when he had heard the information and whether it related to something that had been spoken about generally over a number of years or whether it related to a specific measure to install or consider installing razor wire. 186 The most likely explanation was said to be that Mr Ryan heard the information towards the end of July 2012 as he was aware that the Department was seriously considering the installation of razor wire at a Parkville.187

[75] With respect to the issue of the nature of Mr Ryan’s action in making the phone call, the Department submitted that, in principle, the conduct may have been at the lower end of the range of conduct covered by section 492A of the Children, Youth and Families Act 2005. However, it was contended that it was inappropriate to view the conduct by reference to the criminal proceeding and the decision of the Magistrate to place Mr Ryan on a diversion program. The Department argued that it was uniquely placed to evaluate and assess the nature of Mr Ryan’s conduct and its seriousness, being Mr Ryan’s employer. 188

[76] The applicant’s attempt to discount/diminish these security threat presented by the release of the information, was said to not find support in the evidence. The Department considered that the disclosure by Mr Ryan could have served as an alert to clients or their families of an existing vulnerability in the security at Parkville. It was stated that the respondent was not challenged on this evidence. 189 Ms Symons argued that the risk associated with the disclosure was real and that, just because the misconduct did not give rise to actual damage, does not exonerate the person responsible. It was explained that there was a precedent for clients at Parkville attempting to escape by using an area of known vulnerability (July 2012).190

[77] The respondent also dealt extensively, in both of its submissions, with the issues of procedure and remedy. As indicated earlier, these will be considered later in the decision.

THE LEGISLATION

[78] Section 396 of the Act sets out four matters which must be decided in applications of this kind before the merits are considered. These matters are:

“(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.”

[79] The application was made 13 days after the dismissal which is within the period required in subsection 394(2) - s.396(a).

[80] With respect to the requirements of s.396(b), Mr Ryan was initially covered by the VPS Agreement which was replaced by the VPS Determination. Therefore, Mr Ryan was protected from unfair dismissal within the meaning of s.383 of the Act.

[81] Sections 396(c) and (d) have no relevance in this matter.

[82] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.”

[83] In this matter, s.385(a) has been met and s.385(c) and (d) have no relevance.

[84] Therefore, what remains to be determined is whether or not Mr Ryan’s dismissal was harsh, unjust or unreasonable (s.385(b)).

Was the dismissal harsh, unjust or unreasonable?

[85] In order to determine whether Ms Ryan’s dismissal was harsh, unjust or unreasonable, the Fair Work Commission is required to take into account the factors set out in s.387 of the Act. Those factors are as follows:

“Section 387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

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

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

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

I will deal with each of these factors in turn.

(i) s.387(a) - Was there a valid reason for Mr Ryan’s dismissal?

[86] Mr Ryan’s employment was terminated on 11 October 2012, for misconduct 191 arising out of an allegation that was put to him on 8 August 2012.192 The allegation was:

“a) On 1 August 2012, at approximately 7.13am, while on duty at the Parkville Youth Justice Precinct (PYJP) and using a departmental telephone, you disclosed to 3AWradio station show ‘the Rumour File’ confidential security information relating to the possible installation of razor wire on the fences at PYJP.” 193

[87] It was alleged by the Department that Mr Ryan had breached section 492A of the Children, Youth and Families Act 2005, the Code of Conduct for Victorian Public Sector Employees (No.1) 2007, the Department’s Values of Professional Integrity and Respect and the Youth Justice Custodial Services’ Operations Manual. 194

[88] It was common ground that, during the meeting on 31 August 2012, Mr Ryan admitted to making the phone call to 3AW as alleged and provided a statutory declaration to this effect. 195 The transcript of The Rumour File segment on 1 August 2012 showed that Mr Ryan had said “….at the….ah….Youth Training Centre. They’re gonna put up razor wire to keep the inmates in. They’ve been escaping a fair bit down here, in Melbourne.”196

[89] The applicant was clear that it was an act of stupidity to have made the call and also very poor judgement on his part. He said that he was very remorseful about what he had done. In terms of the reason why he had called 3AW, it was Mr Ryan’s evidence that it was to put pressure on the Department to install razor wire. He thought that, if someone from the Department heard it, they would act upon it. He said that, at his level, he could not go to the Director and make that recommendation. Mr Ryan recalled that he had suggested that razor wire be installed to Mr Lanyon and Mr Robinson on one occasion but that it had not been taken up. He felt that something needed to be done as there had been serious escapes/attempted escapes with people getting hurt. He explained that, having seen the damage/pain of staff members impacted by the escapes, he did not want to see this repeated out in the public arena.

[90] In addition, Mr Ryan explained that he had made the call because he was excited about the Department’s journey. The journey was said to have commenced with the SEP and he was pleased if the Department was going to put razor wire up because it would be a good thing to keep the clients from escaping.

[91] With respect to where the information came from about the installation or possible installation of razor wire, Mr Ryan gave a variety of answers. In his witness statement, he referred to becoming aware of a rumour, in late July 2012, that the facility was installing razor wire around the perimeter. 197 In his oral evidence, Mr Ryan stated that he had made up the bit about the razor wire being installed. He said that it was his own idea and that he had no knowledge of it being installed or a proposal to do so. Later on, Mr Ryan explained that the issue of installing razor wire had been discussed for a number of years - the rumour. In his written response to the allegations (the statutory declaration dated 16 August 2012198), Mr Ryan said that there was a “mooted addition of razor wire…..”199 Further on in his oral evidence, Mr Ryan said that he had heard something at work. However, he did not know where it had come from. He thought that it might have been during the conversation with Mr Lanyon and Mr Robinson. He was clear that he had not heard it from Mr Leechman and could not recall discussing it with Mr Duckworth. Mr Ryan said that, for him, all of the different strands married into each other. In the end, Mr Ryan opted for his evidence being that in his written statement - that he became aware of a rumour at work, in late July 2012, that razor wire was going to be installed around the perimeter.

[92] It was further submitted that Mr Ryan’s actions should be viewed in the context of a number of significant work factors which were causing Mr Ryan to be considerably stressed. As set out in paragraph 53 above, these work factors included Mr Ryan being profoundly affected by the escapes/attempted escapes from the Centre; his responsibility for employees on return to work plans, some of whom had psychological issues; sustained work stress due to a co-worker’s conduct; additional projects and having to train Mr Duckworth.

[93] On the other hand, it was submitted by the Department that there was a valid reason for Mr Ryan’s dismissal. The Department argued that, by telephoning 3AW and disclosing information about a proposal to install razor wire at Parkville, Mr Ryan’s actions amounted to serious misconduct. Further, it was argued that Mr Ryan’s conduct was in breach of the Children, Youth and Families Act 2005 together with the Departmental Code of Conduct, Operations Manual and the Values of Professional Integrity and Respect.

[94] It was contended by the Department that, at no stage during the disciplinary process, had Mr Ryan referred to the information he had disclosed as a rumour. It was argued that the information that Mr Ryan had disclosed to 3AW he had acquired as a result of his position with the Department. The respondent submitted that it was a serious error of judgement by Mr Ryan and also an act of disloyalty by a senior employee who was, or ought to have been, well aware that such information was of the utmost confidentiality.

[95] With respect to the work factors put forward by the applicant, the Department argued that there was no medical evidence before the Commission as to the applicant’s state of mind when he made the phone call. It was stated that, during the disciplinary process, the Department had attempted to contact the psychologist but Mr Ryan had not given consent. Mr Ryan’s evidence, where he said that he had not wanted this to happen, was referred to.

[96] In addition, it was contended that, on the basis of Mr Leechman’s evidence, Mr Ryan had overstated his work responsibilities thereby overstating the resultant alleged stressors. This was in respect of the alleged increase in Mr Ryan’s workload (the SEP project and the bedroom door upgrade) and the training of Mr Duckworth.

[97] In terms of the different explanations given by Mr Ryan as to the nature of the information disclosed to 3AW, the Department submitted that Mr Ryan’s “confusion” was due to his efforts to downplay the level of his culpability in making the phone call. This was said to have resulted in him providing inconsistent evidence as to where and when he heard the information. It was argued that the most likely explanation was that Mr Ryan heard the information towards the end of July 2012 when he became aware that the Department was seriously considering the installation of razor wire ate Parkville.

[98] Finally, it was submitted that the applicant had attempted to diminish/discount the security threat presented by his release of the information - which was not supported by the evidence. This was because the Department contended that Mr Ryan’s disclosure could have alerted clients or their families to an existing security vulnerability - which was not challenged during the hearing. It was stated that the risk was real as there was a precedent for clients at Parkville attempting to escape by using an area of known vulnerability (July 2012).

Considerations

[99] I have carefully considered all of the material before me. During the meeting on 31 August 2012, and in the form of a statutory declaration dated 16 August 2012, Mr Ryan admitted that he had rung 3AW, on 1 August 2012, and had participated in the talkback programme. The statutory declaration also indicated that he made the phone call whilst he was driving to work from a Department allocated mobile. Mr Ryan also gave oral evidence to this effect during the hearing. From the evidence before me, it appears that Mr Ryan has consistently admitted that he made the phone call to 3AW and as to what he said.

[100] It also appears certain that the information Mr Ryan disclosed on 3AW was something that he had heard at work. There was a great deal of evidence about whether the installation of razor wire was a rumour or whether he had been told about it, together with the other FSS Co-ordinator, by Mr Leechman. Mr Ryan was very clear in his evidence that he had not been told by Mr Leechman that they had been instructed to look at the feasibility of installing razor wire. Mr Leechman was equally sure that he had spoken to Mr Ryan and Mr Duckworth. It appears from the evidence that Mr Leechman emailed Mr Duckworth directly, on 6 August 2012, about the arrangements for a contractor to visit the Centre to provide a quote. In Mr Ryan’s statutory declaration, he referred to “the mooted addition of razor wire”. Taking all of this into account, it seems that Mr Ryan became aware that the Department was investigating the installation of razor wire at work. I do not accept that it was a rumour. Rather, it is more likely that Mr Duckworth or someone else mentioned it to Mr Ryan. It is not necessary to be definitive on this point as I am satisfied that Mr Ryan became aware of the information whilst he was performing his duties.

[101] The reason for ringing 3AW appears to have been an attempt by Mr Ryan to put pressure on the Department to ensure that razor wire was installed. I accept Mr Ryan’s evidence that, having seen the damage inflicted on staff members, by the escapes/attempted escapes, he did not want to see this happen to members of the public. At the time of the meeting on 31 August 2012 and also during the hearing, Mr Ryan said that he was rapt about the installation of razor wire. This was because it meant that the Department was moving forward/an improvement in response to the damage and recent escape.

[102] Therefore, I find that Mr Ryan disclosed confidential Departmental security information regarding the possible installation of razor wire at Parkville on 3AW, when he rang The Rumour File on 1 August 2012. In doing this, he breached section 492A of the Children, Youth and Families Act 2005 concerning disclosing confidential information about security arrangements at youth justice facilities, gained whilst undertaking his role as a FSS-Co-ordinator.

[103] In addition, Mr Ryan breached the Code of Conduct for Victorian Public Sector Employees (No.1) 2007 as well as the Department’s Values.

[104] Therefore, I am satisfied that there was a valid reason for Mr Ryan’s dismissal relating to misconduct as a result of phoning 3AW and divulging confidential information about security arrangements at Parkville. In reaching this conclusion, I have taken into account the nature of the information that Mr Ryan divulged, and that he obtained it whilst undertaking his role, together with the nature of his position as Fire, Safety and Security Co-ordinator and that he worked in a custodial environment.

(ii) Section 387(b) - was Mr Ryan notified of the reason?

[105] Mr Ryan was first notified that the Department had become aware of “matters of concern relating to your conduct” on 6 August 2012 by letter. 200 The letter directed Mr Ryan not to attend work and stated that the Department would be in contact once further information in relation to these matters was obtained.201

[106] On 8 August 2012, Mr Ryan received a letter setting out the nature of the allegation against him and also the breaches that his misconduct or serious misconduct had allegedly resulted in. 202

[107] Therefore, I am satisfied that Mr Ryan was notified of the reason for his dismissal.

(iii) Section 387(c) - was Mr Ryan given an opportunity to respond?

[108] It was argued on behalf of Mr Ryan that he was given an opportunity to respond to the allegation, but that he was not given any opportunity to respond to the findings or material produced by Mr Long after the meeting on 31 August 2012. This was said to be because he was not provided with any of this material. 203 This material included Mr Long’s handwritten notes of the meeting on 31 August 2012, the typed meeting notes and the material sent to the delegate.204 Therefore, it was contended that Mr Ryan was deprived of any meaningful opportunity to respond to the allegation, contrary to clause 17.8.6(b) of the VPS Agreement.205

[109] On behalf of the Department, it was stated that Mr Ryan was given a number of opportunities to respond to the allegation against him. This occurred during the meeting on 31 August 2012 and later, in response to the proposed disciplinary outcome. 206

[110] With respect to the broader issue of procedural fairness and the disciplinary process that was undertaken, the applicant submitted that the procedure was not followed and that the process that was followed was flawed. 207

[111] It was stated that Mr Ryan had been notified by Ms Barresi, on 8 August 2012, that the allegation would be managed under the VPS Agreement. 208

[112] With respect to clause 17.8 of the VPS Agreement, the applicant contended that the Department did not appoint an investigator and did not conduct an investigation. This was said to be contrary to clause 17.8.5(c) of the VPS Agreement. 209 It was stated that Mr Ryan admitted making the call but did not admit the allegation that he had made the call whilst on duty or from work premises. Further, no inquiries were said to have been made as to how Mr Ryan became aware that the installation of razor wire was being considered. If these circumstances were relevant to the Department, it was argued that inquiries should have been made.210 In addition, contrary to clause 17.8.5(d)(vi) of the VPS Agreement, it was stated that neither was there an investigation undertaken of Mr Ryan’s explanations regarding his work circumstances as at 1 August 2012.211

[113] It was further submitted that, contrary to clause 17.8.7(a) of the VPS Agreement, the discipline outcome was disproportionate to the seriousness of the matter. The applicant argued that no or no proper investigation or finding was made as to where in the range Mr Ryan’s conduct fell. There was also said to have been no or no proper consideration of the other relevant factors. These included the impact of dismissal on Mr Ryan, his previously long and exemplary service and his personal and economic situation. Further, little or no account was taken of the depth of Mr Ryan’s remorse which was a strong indicator of his future conduct. 212

[114] Also, it was contended that, contrary to clause 17.1.14 of the VPS Agreement, Mr Ryan was not told that the procedures with which he had been provided were to be varied or not followed. 213

[115] With respect to the delegate, it was argued that Mr Ryan was not told that the matter was to be sent to the delegate nor that he had the right to submit material to the delegate. Further, Mr Long was said to have not been shown Mr Ryan the submission made to the delegate. 214 It was stated that the material provided to the delegate by Mr Long did not set out Mr Ryan’s explanations, did not assess whether there were any mitigating factors, did not refer to Mr Ryan’s extreme remorse and co-operation during the disciplinary process, his personal and economic situation, his prior excellent work performance over the previous 11 years or the impact the termination would have on him. Further, it was submitted that Mr Ryan’s behaviour/conduct was not correctly characterised. This was because the Department had stated that Mr Ryan could have alerted clients or their families of a vulnerability in security. The applicant argued that the confidential information concerned the potential installation rather than the absence of razor wire.215

[116] As well, it was submitted that neither Mr Biagi nor Mr Long had looked at Mr Ryan’s personnel file and that neither of them had interviewed Mr Leechman. It was acknowledged that Mr Ryan had not provided written consent for the Department to speak to the psychologist. However, it was argued that the depth of Mr Ryan’s remorse was self evident and that Mr Ryan had described his state of mind to Mr Long during the meeting on 31 August 2012. 216

[117] For its part, the Department rejected the contention that its disciplinary process was flawed. It stated that the disciplinary procedure in the VPS Agreement and later, the VPS Determination had been observed. 217 It was argued that the procedure provided that, if the employee admits the alleged misconduct, the employer may proceed immediately to the determination of the misconduct outcome stage under either the VPS Agreement or the VPS Determination. The Department stated that, at the meeting on 31 August 2012, the applicant admitted making the phone call. Therefore, the need to appoint a person to conduct an investigation into the allegation was said to be obviated.218 It was contended that the evidence was that it was normal practice to wait for a response to the allegations before determining whether to undertake an investigation. It was the Department’s view that this was logical, particularly given that the allegation concerned a single mobile phone call.219

[118] The Department submitted that, once it was entitled to, and did, proceed to the determination of outcome stage, the need to undertake the steps set out in clause 17.8.5 of the VPS Agreement fell away. Further, it was argued that the steps in clause 17.8.6 (opportunity to respond) were to be construed in the context where there had not been an investigation. The Department indicated that Mr Ryan was given an opportunity to respond by letter dated 24 September 2012 to the proposed discipline outcome. 220 Mr Ryan had provided a response on 3 October 2012.221

[119] With respect to the delegate’s disciplinary outcome determination, it was submitted that it referred to a number of matters that had been raised for their consideration. These included the mitigating circumstances raised by Mr Ryan; that he was unaware of the breach of the Children, Youth and Families Act 2005, that he was under stress at the time, his statement of remorse and his claim that he had not had further education during his employment. 222

[120] Further, it was stated that the delegate, in making his determination, had taken account of the reasons offered by Mr Ryan for the conduct, Mr Ryan’s length of service, prior record, demonstration of remorse, the impact on Mr Ryan and his family and other available disciplinary outcomes. 223

[121] The Department indicated that it did not make any inquiries into how Mr Ryan became aware of the information. This was said to be because it was not a core ingredient of the allegation. In addition, Mr Ryan had admitted making the phone call and had not taken issue with the characterisation of the information disclosed as “confidential security information”. 224

Considerations

[122] When Mr Ryan was advised of the allegations in writing on 8 August 2012, the letter also stated that the relevant procedure was that set out in the VPS Agreement. He was advised, by a letter from Mr Biagi dated 26 August 2012, that the matter would now be managed under the VPS Determination. In determining the disciplinary outcome, the delegate, Mr Lanyon, indicated that the VPS Determination applied. Therefore, the disciplinary process regarding Mr Ryan appears to have commenced under the VPS Agreement and been concluded under the VPS Determination. The requirements of both procedures, however, appear to be very similar with respect to this matter.

[123] The main issue regarding whether Mr Ryan was afforded procedural fairness concerns whether or not there should have been an investigation conducted, particularly into the mitigating factors put forward by Mr Ryan. It was the Department’s argument that, under either instrument, if the employee admits the alleged misconduct, the employer may proceed straight to the determination of the misconduct outcome stage. As Mr Ryan had admitted the allegation, there was said to be no requirement to conduct an investigation and that the Department was entitled not to undertake one. In addition, it was the Department’s evidence that it was normal practice under the VPS Agreement to wait until the employee had responded to the allegations before determining if there was a need for an investigation to be undertaken.

[124] On the other hand, it was submitted on behalf of the applicant, that Mr Ryan had only admitted making the phone call and not the whole allegation as framed. Secondly, it was argued that the Department also failed to investigate the mitigating factors provided by Mr Ryan regarding his work circumstances.

[125] With respect to the issue of Mr Ryan not being provided with any material arising from the meeting on 31 August 2012, it was Mr Long’s evidence that he had not given Mr Ryan a copy of his handwritten or typed meeting notes nor of the submission to the delegate. It was argued by the applicant that this was contrary to clause 17.8.6(b) of the VPS Agreement (clause 19.10.2 of the VPS Determination).

[126] Further, it was submitted that, in the delegate’s disciplinary outcome determination, it was stated the parties had provided their submissions in writing as to why termination is/is not the appropriate outcome. It was argued that Mr Ryan was not told that the matter was to be sent to the delegate, was not told of any right to submit material to the delegate and was not shown Mr Long’s submission to the delegate. Mr Long, in his evidence, confirmed that this was correct.

[127] In addition, on behalf of the applicant, issue was taken with the content and alleged omissions from Mr Long’s submission to the delegate. It was argued that the submission did not present the complete picture. This was because it did not include matters such as Mr Ryan’s remorse, his long and unblemished work history and the explanations he gave the Department.

[128] Having considered all of the submissions and evidence, it would appear that, notwithstanding normal practice, the disciplinary procedure in the VPS Agreement or the VPS Determination has not been appropriately followed. With respect to misconduct, there is a three step process in the VPS Agreement (clause 17.8.1) which applied to Mr Ryan as the beginning. It is:

“17.8.1 Process

Where an Employee is alleged to have engaged in misconduct, there will be, consistent with the requirements of procedural fairness:

17.8.1(a) an investigation (see clause 17.8.5);

17.8.1(b) an opportunity for the Employee to respond to the findings of the investigation and a recommendation about a proposed discipline outcome (see clause 17.8.6); and

17.8.1(c) a determination of the discipline outcome by the Employer (see clause 17.8.1(c).”

[129] Clause 17.8.5(a) of the VPS Agreement requires that the allegations be put to the employee in writing. This was done by letter dated 8 August 2012. Clause 17.8.5(c) states that the employer will appoint a person to conduct an investigation into the allegations. The investigation may include: seeking an explanation from the employee and investigating any explanation made by the employee for the purpose of verifying the explanation so far as possible (clauses 17.8.5(d)(v) and (vi)). Mr Ryan was suspended with pay on 6 August 2012, which is provided for by the VPS Agreement at clause 17.8.2(c). A meeting was held on 31 August 2012 for the purpose of hearing Mr Ryan’s response to the allegation. At that meeting he admitted making the call to 3AW.

[130] It is common ground that Mr Ryan provided a number of explanations for his conduct. These included that he was under a great deal of workload pressure at the time (SEP defects, bedroom door upgrade looming, CCTV project and training Mr Duckworth). He also advised that he had tried to get in touch with Ms Livis, Clinical Group Supervisor, and that he had spoken to a psychologist who said that he was having a breakdown and did not understand what he was doing at the time. During his evidence, Mr Ryan said that he also had responsibility for return to work employees, some of whom had psychological issues. Further, Mr Ryan explained that his work stress was being exacerbated at the time due to a work colleague interfering with his work all the time. He said that he had spoken to Mr Long about it who had arranged a meeting with Ms Livis to try and resolve it. However, he felt that it was not resolved.

[131] It was the Department’s view that with Mr Ryan having admitted the allegation, it was entitled to and did, move directly to the disciplinary outcome stage. However, having started the investigation process (by putting the allegations) to Mr Ryan. The Department was required, having sought an explanation from the employee, to also investigate any explanation provided. Clause 17.8.5(d)(v) of the VPS Agreement - seeking an explanation from the employee is joined by “and” not “or” to the next clause (clause 17.8.5(d)(vi)) of the VPS Agreement - investigating any explanation provided by the employee. As well, common sense and procedural fairness require that once explanations are provided, they need to be investigated.

[132] Of all of the explanations given by Mr Ryan, only one was investigated - the psychologist. Mr Long telephoned Mr Ryan and then sent him a letter, dated 13 September 2012, requesting a written report or statement from his treating psychologist. Mr Ryan had responded by email providing the name of the psychologist and their phone name. After consulting with Mr Biagi, Mr Long then telephoned Mr Ryan requesting him to sign a consent form for the Department to speak to the psychologist, which he then emailed to Mr Ryan. The consent form sent to Mr Ryan was not on official letterhead - which Mr Ryan raised with Mr Long. It was Mr Ryan’s evidence during the hearing, that he did not want the Department to contact the psychologist at that stage because he was also dealing with issues other than work. Mr Ryan said that the psychologist had recommended that he not disclose any information to the Department. It is unclear as to why the consent form was not on Departmental letterhead. However, Mr Ryan was clear, during the hearing, that he was not going to give the Department consent. However, the Department does not seem to have been informed of this at the time. It took the steps that it could to obtain information from Mr Ryan’s psychologist.

[133] It was Mr Long’s evidence that he did not agree with all of Mr Ryan’s explanations eg very heavy workload. However, he never informed Mr Ryan of his view. Mr Long stated that Mr Ryan was in his department and so, therefore, he did not need to investigate the workload issues raised by Mr Ryan. There is no evidence that he discussed Mr Ryan’s workload with Mr Ryan’s supervisor - Mr Leechman. Further, it does not appear that either Mr Biagi or Mr Long checked Mr Ryan’s personnel file. In not investigating Mr Ryan’s mitigating factors, the Department acted in a seriously procedurally unfair manner towards Mr Ryan.

[134] Further, not providing Mr Ryan with the handwritten and typed notes of the meeting nor Mr Long’s submission to the delegate, particularly when he had provided mitigating factors as part of his explanation (clause 17.8.5(d)(v) of the VPS Agreement), is also procedurally unfair. As he had no knowledge of the Department’s view about the mitigating circumstances, how could Mr Ryan have responded fully and how could he have a genuine opportunity to try and persuade the Department not to proceed to the foreshadowed ultimate penalty - the termination of his employment? Additionally, as Mr Ryan was unaware that Mr Long did not accept all of the mitigating factors he had proffered and also did not know they were, therefore, not set out in Mr Long’s submissions to the delegate, he was not in a position to review the recommendation by his psychologist not to disclose any information to the Department. Had Mr Long and the process followed by the Department been transparent, Mr Ryan would have been given a fairer opportunity to try and persuade the Department that the disciplinary outcome should not be the termination of his employment.

[135] In addition, it does not appear that Mr Ryan was advised, at or after the meeting on 31 August 2012, that the matter was being passed to the delegate. On 24 September 2012, Mr Ryan was told that, following consideration of the information and his admission at the meeting on 31 August 2012, it was proposed to terminate his employment. Mr Ryan was given the opportunity to provide a written response. However, there is no evidence that Mr Lanyon was provided with it. There is also no evidence before me that Mr Lanyon was provided with any material from Mr Ryan. This is despite his Determination stating that the parties had provided written submissions. It would also appear that, following the meeting on 31August 2012, the process followed by the Department was far from transparent.

[136] Further, the Department’s submission to the delegate only included one of the mitigating factors put forward by Mr Ryan - that he was under stress at the time.

[137] In addition, account does not appear to have been taken of Mr Ryan’s genuine remorse about what he had done. This was evident at the meeting on 31 August 2012 as recorded by Mr Long in his notes of the meeting.

(iv) Section 387(d) - Unreasonable refusal to allow a support person?

[138] On the evidence before me, there was no unreasonable refusal by the Department to allow Mr Ryan to have a support person present.

(v) Section 387(e) - Employee warned about the unsatisfactory performance?

[139] As Mr Ryan was dismissed due to his conduct, this section does not apply.

(vi) Section 387(f) and (g) - Impact of the size of the employer and a dedicated human resources area?

[140] On behalf of the applicant, it was submitted that, commensurate with its size, the Department had detailed disciplinary procedures - which it failed to follow. It was argued that the Department should be held to a high standard of procedural fairness as it was a government department with a dedicated human resources team and expertise. Given this, it was stated that the failure to follow its own procedures and to afford Mr Ryan procedural farness should weigh heavily in the balance against the Department. 225

[141] On the other hand, the Department submitted that the disciplinary process that was followed was conducted appropriately reflecting the size of the Department and the involvement of dedicated human resources personnel. Whilst the requirement to conduct a separate investigation was dispensed with, it was stated that it did not proceed immediately to the outcome determination stage. Rather, Mr Ryan was said to have been afforded a further opportunity to respond to the Department’s proposed disciplinary outcome. 226

(vii) Section 387(h) - Any other matters considered relevant?

[142] The applicant considered that the following matters were relevant:

● The impact on the employee which was said to be profound, leading him to have a breakdown.
● The employee’s length of service - long service with an excellent work record and work ethic. Mr Ryan had not previously been subject to any formal disciplinary action.
● The personal and economic situation of the employee. Already somewhat strained financial circumstances were said to have become extreme hardship with the loss of his employment. At the age of 57, Mr Ryan has struggled to obtain meaningful employment and his chances of obtaining equivalent full time employment are negligible.
● The outcome was disproportionate to the conduct.
● That the Department’s process was flawed and unfair. 227
● Mr Ryan made a full admission of the allegation.
● Mr Ryan has shown remorse for his action.
● Mr Ryan was under considerable stress at the time of the phone call. 228

[143] For its part, the Department submitted that there were a number of other relevant matters. These were:

● It is implausible that Mr Ryan could have performed his duties in ignorance of the obligation to maintain the confidentiality of confidential information. This was particularly so, given the extent to which each of the pertinent policy documents were promulgated. Regard was said to also be had that, in Mr Ryan’s position, he was responsible for the safety and security of the Parkville Precinct. 229
● Mr Ryan has, at no time, presented any medical evidence of an operative condition or stressors to substantiate his contention that he was operating under significant pressure at the relevant time. The Department had sought consent to speak to his psychologist but this was refused by Mr Ryan. 230
● Mr Ryan’s previous employment history of good or at least unexceptional work performance is overwhelmed by the gravity of his conduct. 231
● Mr Ryan’s longstanding employment suggests that he ought to have known better. 232
● The possible consequences of Mr Ryan’s disclosure of confidential information was significant. This was because it may have encouraged clients to try and abscond prior to the installation of the razor wire, thereby putting employees and members of the public at risk of harm. 233
● The Department acknowledges that Mr Ryan has demonstrated a degree of remorse. However, it holds the view that Mr Ryan has sought to downplay the level of his culpability by characterising the information he disclosed as a “rumour”. 234

CONCLUSION

[144] In all of the circumstances of this matter, and having taken account of each of the factors in section 387 of the Act, I determine, on balance, that Mr Ryan’s dismissal was harsh.

[145] On the one hand, there was a valid reason for Mr Ryan’s dismissal on the basis of misconduct.

[146] On the other hand, I have taken into account the clear lack of procedural fairness, set out in paragraphs 128 to 137 above. I have also taken account of Mr Ryan’s genuine remorse for his actions, his length of service and his previously unblemished work record. I accept Mr Ryan’s evidence as to his mental state at the time he made the call. Having viewed Mr Ryan in the witness box, I accept his contention that he was having a “meltdown” at the time due to a range of work pressures.

[147] Therefore, balancing all of these factors, I find that Mr Ryan’s dismissal was harsh.

[148] Accordingly, it follows that, pursuant to section 385 of the Act, Mr Ryan has been unfairly dismissed.

REMEDY

[149] Section 390 of the Act sets out when the Fair Work Commission may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:

“390 When FWA may order remedy for unfair dismissal

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) FWA may make the order only if the person has made an application under section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[150] With respect to the requirements of s.390, I am satisfied that Mr Ryan was protected from unfair dismissal at the time of his dismissal (s.390(1)(a)) and that he has been unfairly dismissed (s.390(1)(b)). Further, Mr Ryan has made an application under s.394 of the Act (s.390(2)).

[151] Section 390(3) states that the Fair Work Commission must not order the payment of compensation unless two conditions have been met. The first condition is that the Fair Work Commission is satisfied that reinstatement is inappropriate (s.390(3)(a)). The primary remedy sought on behalf of Mr Ryan was reinstatement which was said to be appropriate in this case. It was argued that the Department is a very large employer which is able to accommodate reinstatement. It was contended that the relationship of trust and confidence was not irrevocably destroyed. This was because Mr Ryan had a strong work ethic, was dedicated to his job and whose honesty was demonstrated by his contrite behaviour and ready acceptance of responsibility for his actions. Further, it was stated that Mr Ryan has no or very limited prospects of finding comparable alternative employment. For these reasons, it was argued that reinstatement is viable and appropriate. 235

[152] On the other hand, it was the Department’s contention that reinstatement was inappropriate. It was argued that Mr Ryan’s serious error of judgement in making the phone call and his continued failure to provide a cogent or consistent explanation for his actions was said to suggest that Mr Ryan has not fully accepted responsibility for, and lacks insight into, his conduct. In addition, the Department submitted that Mr Ryan’s admission was qualified in that he persisted, on and off, with characterising the confidential information as a rumour. As well, it was stated that Mr Ryan had demonstrated that his behaviour was the antithesis of the fundamentals of his job as a FSS Co-ordinator. 236 Finally, it was said that, when Mr Ryan made the phone call to 3AW, he lost the necessary trust and confidence of the Department.237

[153] With respect to the applicant’s submission that the prospect of future employment was negligible or nonexistent, the Department referred to Mr Ryan’s evidence where he said that he was not precluded from being considered for a Facilities Co-ordinator role and that he had generally been working each day since December 2012. 238

[154] I have considered carefully the submissions of the parties on this issue. Despite Mr Ryan’s clear desire to be returned to work, it is my view that reinstatement would not be appropriate in this case - in all of the circumstances. In reaching this conclusion, I have taken account of the nature of his former position with the Department and the custodial environment in which he worked. I have also taken into account Mr Ryan’s remorse for his actions. However, when balancing all of this, I have formed the view that reinstatement would not be appropriate.

Compensation

[155] Section 390(3)(b) requires that the Fair Work Commission consider it appropriate in all of the circumstances of the case to order compensation. Taking into account all of the circumstances of this matter, an order for payment of compensation is considered appropriate.

[156] The requirements regarding an order for compensation are contained in section 392 of the Act. Section 392(2) sets out the criteria for deciding the amount of compensation in all of the circumstances of the case. These criteria are:

“(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.”

[157] I will deal with each of the criteria in turn, guided by the decision of the Full Bench in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge. 239

[158] There is no sound basis on which to conclude that an order for the payment of compensation would affect the viability of the Department of Human Services. The effect of such an order on the Department’s viability does not mitigate against such an order.

[159] Mr Ryan’s length of service with the company was approximately 11 years. This is a period of service which supports such an order.

[160] In the circumstances, it was likely that Mr Ryan would have worked for the Department for at least another twelve months but for his dismissal. This supports an order for the payment of compensation.

[161] It was Mr Ryan’s evidence that he has actively sought to mitigate his loss of employment with the Department. He has been successful in obtaining casual work at a lower hourly rate. The amount earned from such alternative employment would not mitigate against such an order.

[162] With respect to contingencies, the period Mr Ryan would have worked for the Department, save for his dismissal, has not yet passed (11 October 2013). Contingencies therefore apply to the balance of this period.

[163] Mr Ryan’s misconduct contributed to the Department’s decision to dismiss him. This, therefore, goes against an order for compensation.

[164] It was submitted on behalf of the applicant that the seniority of Mr Ryan’s position and his length of service should be taken into account. Further, it was argued that these factors support a higher award of compensation. 240

[165] The Department’s view was that only a moderate or nominal award of compensation should be made. Further, it was argued that the Commission should take a short term view of Mr Ryan’s future employment prospects with the Department. 241

[166] Having considered the submissions of the parties on this aspect of the award of compensation, I am of the view that there are no other matters that are considered relevant to the circumstances of this case.

[167] The matters supporting an order for payment of compensation outweigh those going against such an order. Therefore, it is considered that an order for the payment of compensation by the Department of Human Services to Mr Ryan is appropriate in all of the circumstances of this case.

Compensation amount and instalments

[168] Determination of an amount of compensation is made having regard to the matters in section 392 of the Act and instalments having regard to s.393 of the Act.

Section 392(2):

(i) Section 392(2)(a) - viability

[169] There is no basis to conclude that an order for compensation to Mr Ryan would affect the viability of the Department of Human Resources.

(ii) Section 392(2)(b) - length of service

[170] Mr Ryan’s length of service was approximately 11 years.

(iii) - Section 392(2)(c) - remuneration that would have been received

[171] I have previously decided that, if Mr Ryan had not been dismissed, he would have continued to work for at least another 12 months. Over that 12 month period, the remuneration Mr Ryan would have received, or would have been likely to receive, is $77,593. 242 Whilst other matters, such as superannuation, form part of remuneration, they have not been included in the calculations as there does not appear to be any evidence about this matter.

(iv) - Section 392(2)(d) - mitigation efforts

[172] During the hearing Mr Ryan provided details of his efforts to mitigate his loss. On the basis of the material before me, I find that Mr Ryan has made reasonable efforts to mitigate his loss.

(v) - Section 392(2)(e) and (f) - remuneration earned and income reasonably likely to be earned

[173] These sections of the Act deal with the amount of any remuneration earned by Mr Ryan from employment in other work. This is, firstly, during the period between his dismissal and the making of an order for compensation, and, secondly, any income reasonably likely to be earned during the period between the making of an order for compensation and the actual compensation.

[174] The Commission does not appear to have any information regarding the amount of remuneration earned by Mr Ryan since his dismissal. Mr Ryan is directed to provide the Commission and the Department with the amount earned since his dismissal up to the date of this decision, together with supporting documentation. The information is to be provided by close of business on Friday 19 July 2013.

(vi) - Section 392(2)(g)- other matters

[175] As the protected period of continuous employment has not yet passed (approximately 3 months remain), I propose to make a deduction of 5% for contingencies.

[176] The impact of taxation has been considered but a gross amount will be settled on. There are no other matters that are considered relevant in determining an amount of compensation instead of reinstatement under section 392(2) of the Act.

[177] Section 392(3) of the Act provides as follows:

“(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.”

[178] As Mr Ryan was dismissed for misconduct, I am satisfied that his misconduct contributed to the Department’s decision to dismiss him. Therefore, there must be a reduction in the compensation that would otherwise have been ordered. On the basis of the nature of the misconduct, the reduction will be 25%.

[179] With respect to section 393 of the Act, there were no submissions that any amount of compensation should be subject to payment by instalments.

[180] Once the information requested from the applicant is to hand, it will then be possible to finalise determination of the amount of compensation in lieu of reinstatement. This will be completed within two weeks of receipt of the information.

COMMISSIONER

Appearances:

Ms B Meyers of Counsel for the Applicant

Ms C Symons of Counsel for the Respondent

Hearing details:

2013.

Melbourne:

March 8.

Final written submissions:

For the Applicant. 28 March 2013.

For the Respondent. 18 April 2013.

For the Applicant. 26 April 2013.

1 Exhibit A

2 Transcript PN 51 - 53

3 Ibid PN 127 and 131 - 133

4 Ibid PN 140 - 145

5 Ibid PN 162 - 165

6 Ibid PN 56, 136 - 138 and 147

7 Ibid PN 56 - 61 and 461 - 465

8 Ibid PN 62

9 Ibid PN 470

10 Ibid PN 471

11 Ibid PN 63 and 466 - 469

12 Ibid PN 472 - 474

13 Ibid PN 485 - 486

14 Ibid PN 490 - 498

15 Ibid PN 69 - 74 and 278 - 282

16 Ibid PN 76.

17 Ibid PN 85

18 Ibid PN 329 - 338 and 383 - 387

19 Ibid PN 88

20 Ibid PN 406

21 Ibid PN 460

22 Ibid PN 412 - 415

23 Ibid PN 417 - 450 and Exhibit A4

24 Ibid PN 419

25 Ibid PN 89 - 97

26 Ibid PN 103 - 134

27 Ibid PN 103

28 Ibid PN 104

29 Ibid PN 104 and 451

30 Ibid PN 151 - 160

31 Ibid PN 166 - 171

32 Ibid PN 174 - 180.

33 Ibid PN 182 - 185.

34 Ibid PN 188 - 195

35 Ibid PN 216

36 Ibid PN 195 - 197

37 Ibid PN 196, 200 - 201 and 294

38 Ibid PN 295 and 304

39 Ibid PN 196 and 200 - 203

40 Ibid PN 204 and 214

41 Ibid PN 274 - 277

42 Ibid PN 220, 263, 354 - 361 and 365

43 Ibid PN 255 - 257

44 Ibid PN 205 - 207, 210 - 213 and 218

45 Ibid PN 208 - 209, 215 and 217

46 Ibid PN 248 and 250

47 Ibid PN 252 and 341 and Exhibit A1 at paragraph 3

48 Ibid PN 342 and 352

49 Ibid PN 345 - 348

50 Ibid PN 254 and 310 and Exhibit R3 at Attachment RL-3

51 Ibid PN 263, 311, 342 and 389

52 Ibid PN 269

53 Ibid PN 292 - 293

54 Ibid PN 362 - 363, 376 - 377, 380 - 382 and 388

55 Ibid PN 378 - 379

56 Ibid PN 364

57 Ibid PN 368 - 369 and Exhibit A1 at paragraph 3

58 Ibid PN 392 - 394

59 Ibid PN 395 - 397

60 Ibid PN 398 - 399

61 Ibid PN 98 - 101.

62 Ibid PN 499 - 505

63 Ibid PN 102 and 499 - 528

64 Exhibit R2

65 Ibid at paragraph 1 and Transcript PN 571 - 572

66 Ibid at paragraph 2 and ibid PN 582 - 588

67 Ibid at paragraphs 8 - 9 and ibid PN 589 - 595 and 662 - 663

68 Transcript PN 602 - 605

69 Ibid PN 670 - 674

70 Ibid PN 606 - 608 and 618

71 Ibid PN 661

72 Ibid PN 675

73 Ibid PN 679 - 689

74 Ibid PN 678

75 Ibid PN 609

76 Ibid PN 610 - 611 and 660

77 Ibid PN 619 - 620

78 Ibid PN 623 - 626

79 Ibid PN 632 - 633

80 Ibid PN 657

81 Ibid PN 635 - 638

82 Ibid PN 644 - 656

83 Exhibit R3

84 Ibid at paragraph 12 and Transcript PN 739 - 741

85 Transcript PN 744 - 756

86 Ibid PN 757 - 761

87 Ibid PN 762 - 765

88 Ibid PN 767 - 769 and Exhibit R3 at paragraph 15

89 Ibid PN 770 and ibid at paragraph 14

90 Ibid PN 771 - 773

91 Ibid PN 778 - 782

92 Ibid PN 784 - 788

93 Ibid PN 791 - 792 and Exhibit R3 at paragraphs 17 - 18

94 Ibid PN 793 - 794

95 Ibid PN 795 - 798 and Exhibit R3 at paragraph 19

96 Ibid PN 799 - 801

97 Ibid PN 802 - 804

98 Ibid PN 805 and Exhibit R3 at paragraphs 22 - 25

99 Ibid PN 807 - 808

100 Ibid PN 809 - 813

101 Ibid PN 814 - 824 and 830

102 Ibid PN 826 - 828

103 Ibid PN 829 and Exhibit R3 at paragraphs 22 - 25

104 Ibid PN 830 - 835 and Ibid at paragraphs 28 - 30 and Attachment RL-8

105 Ibid PN 844 - 854

106 Ibid PN 855 - 860

107 Exhibit R3 at paragraph 21

108 Transcript PN 861

109 Ibid PN 862 - 863

110 Exhibit R4

111 Transcript PN 903 - 905

112 Ibid PN 906

113 Ibid PN 907 - 912

114 Ibid PN 913

115 Ibid

116 Ibid

117 Ibid PN 918 and 922

118 Ibid PN 922 - 929

119 Ibid PN 930 - 931

120 Ibid

121 Ibid PN 919

122 Ibid PN 914 - 915

123 Ibid PN 921

124 Ibid PN 916

125 Ibid PN 936 - 944

126 Ibid PN 945 - 958

127 Ibid PN 959 - 965 and Exhibit R4 at paragraph 18

128 Exhibit R4 at paragraph 10

129 Ibid at paragraph 11 and Transcript PN 997

130 Ibid at paragraph 13 and ibid PN 977 - 980 and 991

131 Ibid and ibid PN 986 - 987 and 993

132 Ibid at paragraphs 14 - 16

133 Exhibit A2

134 Further Submissions of the Applicant, dated 28 March 2013

135 Further Submissions in Reply of the Applicant dated 26 April 2013

136 Further Submissions of the Applicant, dated 28 March 2013, at paragraph 4 (a)

137 Ibid at paragraph 4 (b)

138 Ibid at paragraph 4 (c)

139 Ibid at paragraph 4 (d)

140 Ibid at paragraph 4 (e)

141 Ibid at paragraph 4 (f)

142 Further Submissions in Reply of the Applicant, dated 26 April 2013, at paragraph 1

143 Ibid at paragraphs 2 - 3

144 Ibid at paragraph 6

145 Ibid at paragraph 7

146 Ibid at paragraph 8

147 Ibid at paragraph 5

148 Ibid at paragraphs 7 - 8

149 Ibid at paragraph 11 and Further submissions the applicant, dated 28 March 2013, at paragraph 10

150 Further Submissions of the Applicant, dated 28 March 2013, at paragraph 10.1

151 Ibid at paragraph 10.2

152 Further Submissions in Reply of the Applicant, dated 26 April 2013, at paragraph 12

153 Further Submissions of the Applicant, dated 28 March 2013, at paragraph 10.3

154 Ibid at paragraph 10.4

155 Ibid at paragraph 12 and Further Submissions in Reply of the Applicant, dated 26 April 2013, at paragraph 10

156 Further Submissions of the Applicant, dated 28 March 2013, at paragraph 12

157 Further Submissions in Reply of the Applicant, dated 26 April 2013, at paragraph 9

158 Further Submissions of the Applicant, dated 28 March 2013, at paragraph 13

159 Ibid

160 Ibid

161 Further Submissions in Reply of the Applicant, dated 26 April 2013, at paragraphs 14 - 15

162 Ibid at paragraph 14

163 Exhibit A2 at paragraphs 27 - 41

164 Further Submissions of the Applicant, dated 28 March 2013, at paragraphs 11 and 15 - 19

165 Further Submissions in Reply of the Applicant, dated 26 April 2013, at paragraphs 13 and 16 - 18

166 Exhibit R1 at paragraphs 13 - 16

167 Ibid at paragraphs 17 - 18

168 Ibid at paragraphs 19 - 21

169 Ibid at paragraph 22

170 Ibid at paragraph 23

171 Ibid at paragraphs 24 - 25

172 Ibid at paragraph 34

173 Ibid at paragraphs 36 and 39

174 Ibid at paragraph 37

175 Ibid at paragraph 38

176 Further Submissions of the Respondent, dated 18 April 2013, at paragraphs 2 - 3

177 Ibid at paragraph 4

178 Ibid at paragraph 5

179 Ibid at paragraphs 6 - 7

180 Ibid at paragraphs 8 - 10

181 Ibid at paragraph 11

182 Ibid at paragraphs 11 - 12

183 Ibid at paragraph 13

184 Ibid at paragraph 15

185 Ibid at paragraph 16

186 Ibid at paragraph 17

187 Ibid at paragraph 18

188 Ibid at paragraph 23

189 Ibid at paragraph 25

190 Ibid at paragraph 26

191 Exhibit R2 at Attachment FB-8

192 Ibid at Attachment FB-4

193 Ibid

194 Ibid

195 Exhibit R3 at Attachments RL-3 and RL-4

196 Ibid at Attachment RL-2

197 Exhibit A1 at paragraph 3

198 Exhibit R3 at Attachment RL-3

199 Ibid

200 Exhibit R2 at Attachment FB-3

201 Ibid

202 Ibid at Attachment FB-4

203 Further Submissions of the Applicant, dated 28 March 2013, at paragraphs 11.2.5, 11.2.6 and 15.2

204 Further Submissions in Reply of the Applicant, dated 26 April 2013, at paragraph 13.8

205 Ibid

206 Exhibit R1 at paragraph 42

207 Further Submissions of the Applicant, dated 28 March 2013, at paragraph 11.2

208 Exhibit R2 at Attachment FB-4

209 Further Submissions of the Applicant, dated 28 March 2013, at paragraph 11.2.1

210 Ibid at paragraphs 11.2.2. and 11.2.3

211 Ibid at paragraph 12.2.4

212 Ibid at paragraph 11.2.7

213 Ibid at paragraph 11.2.8

214 Ibid at paragraph 11.4

215 Ibid at paragraphs 11.5.1 - 11.5.9

216 Ibid at paragraphs 11.6 - 11.10

217 Further Submissions of the Respondent, dated 18 April 2013, at paragraph 29

218 Ibid at paragraphs 29 - 30

219 Ibid at paragraphs 31 - 32

220 Exhibit R3 at Attachment RL-7

221 Ibid at Attachment RL-8 and Further Submissions of the Respondent, dated 18 April 2013, at paragraphs 33 - 34

222 Further Submissions of the Respondent, dated 18 April 2013, at paragraph 36

223 Ibid at paragraph 37

224 Ibid at paragraph 38

225 Further Submissions of the Applicant, dated 28 March 2013, at paragraphs 15.3 - 15.4

226 Exhibit R1 at paragraphs 44 and 46

227 Further Submissions of the Applicant, dated 28 March 2013, at paragraph 15.5 and Exhibit A2 at paragraph 34(a)

228 Ibid at paragraphs 34 - 35

229 Exhibit R1 at paragraphs 48 - 49

230 Ibid at paragraph 50

231 Ibid at paragraph 51

232 Ibid at paragraph 52

233 Ibid at paragraph 54

234 Ibid at paragraph 55

235 Further Submissions of the Applicant, dated 28 March 2013, at paragraphs 16 - 17, Exhibit A2 at paragraph 38 and

Further Submissions in Reply of the Applicant, dated 26 April 2013, at paragraphs 17 - 18

236 Further Submissions of the Respondent, dated 18 April 2013, at paragraphs 41 - 42

237 Exhibit R1 at paragraph 57

238 Further Submissions of the Respondent, dated 18 April 2013, at paragraph 43

239 [2013] FWCFB 431

240 Exhibit A2 at paragraph 40(g)

241 Exhibit R1 at paragraphs 60 - 62

242 Exhibit A2 at paragraph 40(c)

Printed by authority of the Commonwealth Government Printer