Marroun v State Transit Authority

[2016] NSWSC 1830

Supreme Court

New South Wales

Medium Neutral Citation:	Marroun v State Transit Authority [2016] NSWSC 1830
Hearing dates:	20 July 2016 (Supplementary written submissions received from the respondent 2 and 16 August and from the appellant 12 August 2016)
Date of orders:	15 December 2016
Decision date:	15 December 2016
Before:	Walton J
Decision:	The Court orders: 1) The appeal is dismissed; 2) The appellant shall pay the respondent’s costs of and incidental to the proceedings, as agreed or assessed; 3) Leave is reserved to either party to apply for a different or special order for costs, notwithstanding the terms of Order 2 above. Such an application must be made on or before 27 January 2017 and accompanied by submissions in support of the application. The application and submission in support shall be no longer than 10 pages and be accompanied, over and above the 10 pages, by any document, not otherwise in evidence, upon which the party relies. Any party affected by any such application shall have 14 days from the filing and service of such application (and accompanying submission in support) in which to respond by a submission of not more than 10 pages which, again, over and above 10 pages, may attach any further documents not otherwise in evidence upon which it relies.
Catchwords:	APPEAL - public sector disciplinary appeal under Pt 7 of Ch 2 of the Industrial Relations Act 1996 in this appeal – statutory scheme for disciplinary appeals – presentation of cases in disciplinary appeal – legal burden – evidentiary burden– principles for appeal under s 197B – requirements for notice of appeal – need to state with precision the decisions on questions of law under challenge – limited recourse to factual background – limited appeal – whether grounds of appeal conform with statutory scope for appeal – opportunity to amend not taken – enlargement of grounds in written submissions on argument – validity of delegation – s 163(3) of the Act – civil proceedings – proof of negative – presumption of regularity – Transport Administration Act 1988 – Transport Service – protective jurisdiction – procedural fairness – no evidence ground – insufficient evidence ground – application of Briginshaw rule – exercise of discretion below – neither grounds of appeal nor extended contentions in relation to those grounds made out – judgment reserved in matter before proclamation date for commencement Industrial Relations Amendment (Industrial Court) Act 2016 – proceedings continued in the Supreme Court of NSW for determination by the Industrial Relations Amendment (Industrial Court) Act 2016 – judgment delivered in Supreme Court – appeal dismissed – leave re costs
Legislation Cited:	Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Impounding Act 1993 (NSW) Industrial Relations Act 1996 (NSW) Industrial Relations Amendment (Industrial Court) Act 2016 (NSW) Transport Administration Act 1988 (NSW) Transport Administration (Staff) Regulation 2012 (NSW) Uniform Civil Procedure Rules 2005
Cases Cited:	Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Leave Payments Corporation (1985) 1 NSWLR 561 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; [2012] HCA 3 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314 Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 Douglas v NSW Land and Housing Corporation & Anor [2008] NSWCA 315 Elleray v Rail Corporation of New South Wales (2014) 86 NSWLR 326; [2014] NSWIRComm 45 Gilmore v Allied Express Transport Pty Ltd [2006] NSWIRComm 16 Grygiel v Baine [2005] NSWCA 218 Gurnett v Macquarie Stevedoring Co Pty Ltd (No. 2) (1956) 95 CLR 106 Haritos v Federal Commissioner of Taxation (2105) 233 FCR 315; [2015] FCAFC 92 House v R (1936) 55 CLR 499; [1936] HCA 40 Hunter Quarries Pty Ltd v Morrison (No 4) [2016] NSWIC 4 Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) CLR 390; [2010] HCA 32 Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 Marroun v State Transit Authority [2016] NSWIRComm 1003 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66 Qantas Airways Limited v Gama (2008) 167 FCR 537; [2008] FCAFC 69 R v JS (2007) 230 FLR 276; [2007] NSWCCA 272 Rail Corporation of New South Wales v Brown(2012) 219 IR 37; [2012] NSWIRComm 14 Secretary, Department of Justice v Schoeman (2014) 86 NSWLR 749; [2014] NSWIRComm 40 Scicluna v New South Wales Land and Housing Corporation (2008) 72 NSWLR 674; [2008] NSWCA 277 Suvaal v Cessnock City Council (2003) 200 ALR 1; [2003] HCA 41 Tanwar Enterprises Pty Ltd v Inspector Raymond Welsh (No 3) (2015) 90 NSWLR 199; [2015] NSWIC 8
Category:	Principal judgment
Parties:	Jamal Marroun (Appellant) State Transit Authority (Respondent)
Representation:	Counsel: E W Young (Appellant) K Edwards (Respondent)   Solicitors: Lazarus Legal Group (Appellant) State Transit Authority (Respondent)
File Number(s):	2016/00059249
Decision under appeal	Court or tribunal: Industrial Relations Commission of NSW Jurisdiction: Industrial Relations Commission of NSW Citation: [2016] NSWIRComm 1003 Date of Decision: 4 February 2016 Before: Newall C File Number(s): 2015/00374137

Judgment

1. Mr Jamal Marroun (‘the appellant’) had been employed by State Transit Authority (or its predecessors) (‘the respondent’) for 38 years at the time of his dismissal in May 2015. He was employed as a Duty Officer, Clerk Class 5/6.

2. It was alleged (in the “Form E1” issued by the respondent (‘the E1’)) that the appellant was guilty of misconduct in that:

On Saturday 11 April 2015 you breached Section 3 of the State Transit Code of Conduct and the State Transit bus operations lost property procedure 49.07 when you removed lost property from the revenue room at Kingsgrove bus depot.

3. The allegation was supported by three particulars.

4. The allegation was found proven and the appellant was dismissed from his employment. He appealed pursuant to Pt 7 of Ch 2 of the Industrial Relations Act 1996 (NSW) (‘the Act’). His appeal was heard by Commissioner Newall, a Commissioner of the Industrial Relations Commission of NSW, who, for reasons I will shortly summarise, dismissed the appeal on 4 February 2016: Marroun v State Transit Authority [2016] NSWIRComm 1003 (‘the impugned decision’).

5. An appeal from that decision was brought by the appellant against the impugned decision pursuant to s 197B of the Act. The section provides:

197B   Appeals on questions of law in relation to public sector promotional and disciplinary matters

(1) A party to proceedings under Part 7 of Chapter 2 may, subject to this Part, appeal to the Commission in Court Session against any decision of the Commission in the proceedings on a question of law.

(2)  On an appeal under this section, the Commission in Court Session may:

(a)  remit the matter to the Commission for determination in accordance with the decision of the Commission in Court Session, or

(b)  make such other order in relation to the appeal as seems fit.

(Emphasis added in italics)

6. It is apparent from the emphasised words that the appeal is limited. The degree of that limitation has been recently the subject of consideration in two judgments of the Industrial Court of NSW, namely, Secretary, Department of Justice v Schoeman (2014) 86 NSWLR 749; [2014] NSWIRComm 40 (‘Schoeman’) and Elleray v Rail Corporation of New South Wales (2014) 86 NSWLR 326; [2014] NSWIRComm 45 (‘Elleray’) (and the authorities cited therein). The appellant, who was represented by Mr E W Young of counsel, accepted, and indeed expressly declined to challenge, the correctness of those authorities. I shall return to them in due course.

The Course of the Appeal

7. The impugned decision was dated 4 February 2016. An application for leave to appeal and appeal under s 197B of the Act (’the notice of appeal’) was filed in the Industrial Court of NSW on 24 February 2016 and became matter number 2016/00059249. That matter was heard upon the basis of a record of the proceedings before Newall C (in the Appeal Books) and the provision of written and supplementary written submissions and oral submissions (given on 20 July 2016). Judgment was reserved. Collectively the application in, hearing by and reserved judgment of the Industrial Court shall be referred to and treated in this judgment as the ‘appeal proceedings’. (Ultimately, I note it was accepted by the parties that leave to appeal was not required. However, had leave been required I would have granted it for the reasons which appear below and, in particular, to further discuss or emphasise the limits of appeals brought under Pt 7 of Ch 2 of the Act: see Schoeman at [131] – [135].)

8. Those observations will require development in order to grapple with some legislative changes affecting the appeal proceedings and to foreshadow some issues arising on the appeal proper.

9. The grounds set out in the notice of appeal were expressed as follows:

1. The Commissioner erred in finding that the appellant was dismissed by a person holding the delegation to dismiss him.

2. The Commissioner erred in his application of principles relevant to a protective jurisdiction.

3. The Commissioner erred in exercising his discretion to not re-instate the appellant despite the express findings (at [65]) that “No reasonable person could have found that the allegation that was actually put against Mr Marroun and the facts the STA actually found proven warranted termination” and “that termination was warranted on the facts that the STA actually found proven defies any reasonable analysis”.

4. The Commissioner erred in finding that the appellant was guilty of dishonesty in his version of events about occurrences which after the subject of the allegation and employer's investigation, despite no allegation of such dishonesty ever being made against Mr Marroun.

5. The Commissioner erred in failing to afford natural justice or procedural fairness to the appellant by making findings about an issue (i.e. whether or not the appellant was honest after the alleged misconduct, which was found not to have occurred) that was not the subject of challenge or argument in the case

6. The Commissioner erred in finding that the appellant (at [76]) “provided to the STA a partially fabricated account of what occurred' of its enquiries.

7. The Commissioner err in finding that (at [76]) “[i]t can properly be inferred that Mr Marroun knew that his wife also gave a partially fabricated account of what occurred to the STA”.

8. The Commissioner erred in finding that (at [78]) “[t]he elements of the account that were fabricated are all patently designed to avoid it emerging that Mr Marroun knew very well, before he received the call from the STA advising him that he had taken the wrong items, that his wife was dealing with the lost property items he had brought home as if they were hers to deal with as she wished, and that he condoned her doing so”.

9. The Commissioner erred in finding that Mr and Mrs Marroun were untruthful witnesses when that was never alleged or argued.

10. The Commissioner erred in finding that Mr Marroun took the relevant items home specifically for the purpose of Mrs Marroun's dealing with the items for her own purposes when that was never alleged or argued.

11. The Commissioner erred in making the findings referred to in paragraphs F6-10 in the absence of a consideration of the principles in Briginshaw v Briginshaw and how it affected the assessment of such evidence as it stood and whether or not the various inference he made to found his conclusions could properly be made, and/or making such findings at all having regard to the principles in Briginshaw v Briginshaw.

12. The Commissioner erred by misapplying Gilmore v Allied Express Transport Pty Ltd [2006] NSWIRComm 16

13. The Commissioner erred in finding that even if he were wrong in his conclusions about Mr Marroun having a lack of candour there could still be no restoration of the employment contract because of 2 facebook posts.

14. The Commissioner erred in failing to give sufficient weight to the appellants practically unblemished 38+ years of service, unlikelihood of the situation ever occurring again, and personal implications consequent to his dismissal.

(Emphasis added in italics)

10. The questions raised by the appeal were said to be each of the grounds simply expressed as a question.

11. The appeal proceedings were first listed for directions on 7 March 2016. Having regard to the limitation expressed in s 197B of the Act, the words emphasised in the grounds of appeal referred to above were raised with counsel for the appellant the adequacy of the notice of appeal. The respondent joined in that expression of concern. Counsel indicated the issue would be reconsidered. The matter, for that reason amongst others, was stood over for further directions on 4 April 2016. On that occasion, no application having been made to amend the notice of appeal in the interim, a question was again raised as to whether the notice of appeal was directed to the requirements of s 197B. The appellant’s response was that the matter had been considered and the notice of appeal in its original form was pressed. In those circumstances, the matter was listed for hearing and the usual directions made in accordance with Practice Note No 1.

12. Pursuant to those directions the parties filed outlines of submissions. The respondent, by then represented by Ms K Edwards of counsel, referred in its outline to s 197B and the limits on the appeal and to the authorities, in particular Rail Corporation of New South Wales v Brown (2012) 219 IR 37; [2012] NSWIRComm 14, emphasising the obligation on the appellant “to identify with some precision the decision of the Tribunal on a matter of law in order to invoke the jurisdiction of the Court”. No outline in reply, as permitted by the directions, was filed by appellant.

13. At the commencement of the hearing of the appeal proceedings before myself, then sitting as the Industrial Court of NSW, reference was made to the written outlines filed and my previously articulated concerns about the adequacy of the notice of appeal. The following appears in the record of proceedings:

These proceedings are not an appeal in the nature of an appeal de novo or an appeal by way of re‑hearing simpliciter but rather an appeal within the strict restraints of the provision which had been discussed over some length in many, many authorities, both in relation to this provision and like provisions such as s 54 of the GREAT Act. And all of those decisions, or a great number of them, have fixed upon this question. And emphasise the need to state what the decision on a question of law below is. That is the subject of what is sought to be reviewed. In other words, it is not simply an admonition to fix upon the requirements of the section but to do so with precision.

I think Miss Edwards in her submission points to the decision in Brown which says this. But there are many others I have extracted a summary of the authorities in my decision in Schoeman but suffice to say it is now well laid ground. I say all that by way of introduction to say that it is not at all clear to me from your written submission what are the decisions on questions of law that are sought to be reviewed by the challenge which is sought here. And I should emphasise that the answer to that question is not to say as the authorities make clear well there is an error of law. Or an error of discretion. Or something of that kind. It simply won't do.

So that is the essential problem and it extends to things which may even be described as superficially attracting errors of law. Questions such as issues of procedural fairness. Or the delegation issue which is ground 1.

So, I thought in fairness to you really I should raise that with you.

(Emphasis added in italics)

14. A discussion then followed with counsel about the way in which the appellant would satisfy the requirements of the Act. Mr Young considered that could best be done by dealing with each of the grounds in support of the notice of appeal. As the submissions were developed it became clear, at least as to grounds 4 to 10 and, in substance, ground 1, that the appellant’s challenge had a common basis. The following exchange took place between the Court and counsel for the appellant:

HIS HONOUR: What is the question of law there?

YOUNG: Whether he could as a matter of law make such a finding.

HIS HONOUR: Is it because you say there is no evidence that would enable him to reach such a conclusion?

YOUNG: Yes, either no evidence or no sufficient probative material which is in the case.

HIS HONOUR: Is that how you advance ‑ is that how we are to understand order 10 of the grounds, is it the legal premise upon which it is based?

YOUNG: Yes. And as your Honour indicated, that there was a key procedural fairness question as well because these findings, the first we heard of them as being an issue is when we read the decision so as a matter of procedural fairness there is no opportunity for my client to deal with such an allegation or adduce evidence to have an opportunity to have the Commission find differently to what was ultimately found.

HIS HONOUR: So it is not a challenge to the findings of fact per se, that is, a challenge to the conclusions of fact reached, but a challenge on the basis that the two things ‑ one that there was no evidence to sustain the findings. And secondly that the findings were made without procedural fairness or contrary to the requirements of procedural fairness.

YOUNG: Yes.

HIS HONOUR: And that encapsulates what I should understand to be grounds 4, 6, 7, 8, 9 and 10 for the purposes of 197B.

YOUNG: Yes, thank you, your Honour. Your Honour's indicated no evidence, I think I've indicated it's either no evidence or no probative material on which to found it, but it's perhaps‑‑

HIS HONOUR: Mr Young, I'm trying to assist you so I can write a decision.

YOUNG: I understand.

HIS HONOUR: One grapples with these issues in terms of the section.

YOUNG: Yes.

HIS HONOUR: You want to reframe the question that I've raised.

YOUNG: What your Honour's put is correct.

HIS HONOUR: Yes.

YOUNG: With the additional aspects of it being that even if there was some material, that is some evidence which he went on to make inferences about, that there was no probative material on which he could do so.

HIS HONOUR: It was not sufficiently probative, is that how you put it?

YOUNG: Yes.

(Emphasis added in italics)

15. At the conclusion of the oral hearing, pursuant to leave granted, the parties provided supplementary written submissions as to the impact, if any, of the decision of the High Court in Kostas v HIA Insurance Services Pty Ltdt/as Home Owners Warranty (2010) 241 CLR 390; [2010] HCA 32 (‘Kostas’) and the judgment in Schoeman and authorities on which that judgment was based. Those submissions were received from the appellant on 12 August and the respondent on 2 and 16 August 2016 and, as previously mentioned, judgment in the appeal proceeding was thereupon reserved by the Industrial Court.

16. Between judgment being reserved in this matter and 16 December 2016, the date appointed for the delivery of this judgment, the Industrial Relations Amendment (Industrial Court) Act 2016 (NSW) (‘the Amendment Act’) was passed.

17. The Amendment Act introduced into the Act new provisions: Ch 6A, entitled “Industrial Proceedings before Supreme Court”, and Pt 18 of Sch 4, entitled “Provisions relating to Industrial Relations Amendment (Industrial Court) Act 2016”. Those provisions operated on and from 8 December 2016, being the day appointed by proclamation for their commencement (see cl 2(1) of the Amendment Act).

15. By cl 61(1) of Pt 18, the Industrial Court of NSW (the court in which the appeal proceedings were heard) was abolished on the “abolition day”. The “abolition day” is defined in cl 60 as meaning the day on which Pt 3 of Ch 4 of the Act was repealed by the Amendment Act, that also being 8 December 2016. A person holding office as a judicial member (see as defined in cl 60 of Pt 18 and s 149 of the Act, now repealed) immediately before that date ceased to hold that office and was appointed as a Judge of the Supreme Court of NSW on the abolition day (cl 62(1) of Pt 18). I, being such a judicial member immediately before the abolition day (and, incidentally, the judicial member hearing the appeal proceedings) was appointed, by commission (see cll 62(5) and (6)), and, by virtue of cl 62(1), a Judge of the Supreme Court of NSW on 8 December 2016.

16. Ch 6A of the Act conferred jurisdiction on the Supreme Court of NSW over proceedings under s 197B of the Act (see s 355B(d)).

17. The appeal proceedings were continued in this Court pursuant to Pt 18 of Sch 4 of the Act for the reasons given below.

18. That consequence was achieved by the provisions of cl 66(2), when read in the light of the definitions of “part heard proceedings” and “pending proceedings” in cll 65(1) and (2). It is convenient to set out those provisions commencing with cl 65(1):

65 Interpretation

(1) In this Division:

part heard proceedings means pending proceedings where the court in which the proceedings were commenced had begun to hear (but had not determined) the proceedings before the abolition day.

pending proceedings are proceedings (including appeals) that:

(a) were commenced before the abolition day, and

(b) have not been finally determined before that day by the court in which the proceedings were commenced.

Note. See subclause (2) as to the meaning of finally determined proceedings

…

(2) For the purposes of this Division, proceedings are not finally determined if:

(a) any period for bringing an appeal as of right in respect of the proceedings has not expired (ignoring any period that may be available by way of extension of time to appeal), or

(b) any appeal in respect of the proceedings is pending (whether or not it is an appeal brought as of right).

…

66 Pending proceedings before Industrial Court

...

(2) In relation to part heard proceedings in the Industrial Court, the judicial member (or person acting as a judicial member) constituting the Industrial Court for those proceedings:

(a) is to continue, on and from the abolition day, to hear the matter, and to determine the matter, sitting as the Supreme Court, and

(b) may have regard to any record of proceedings before the Industrial Court, including a record of any evidence taken in the proceedings before the Industrial Court.

22. There can be little doubt the appeal proceedings constituted “proceedings in the Industrial Court” for the purposes of cl 66(2) as the appeal proceedings, as earlier defined, incorporated both the cause of action as well as the steps in the action: see Hunter Quarries Pty Ltd v Morrison (No 4) [2016] NSWIC 4 at [69]-[73]. Those proceedings are “pending proceedings”, as that expression is defined in cl 65(1), because the proceedings commenced before the abolition day and, in consequence of the hearing having concluded without determination by judgment with reasons and orders (judgment being reserved: see r 36.3 of the Uniform Civil Procedure Rules 2005), they were not “finally determined” in the Court in which the proceedings were commenced, namely, the Industrial Court. That conclusion is supported by the ordinary meaning of the word “determined”, being to decide, but is a fortiori having regard to the provisions of cl 65(2) of Pt 18 which extended the meaning of the expression “finally determined” beyond first instance judgments to include appeals from decisions as of right (the word “finally” in the expression would seem to bring into consideration interlocutory judgments which are not presently relevant).

23. Having regard to the definition of the expression “part heard proceedings” in cl 65(1), the appeal proceedings are “part heard” for the purposes of cl 66(2) of Div 4 of Pt 18 for essentially the same reasons. The hearing of this matter commenced. The appeal proceedings were not “determined” as no judgment was delivered or entered before the abolition day.

24. It follows that the appeal proceedings were “part heard proceedings” for the purposes of cl 66(2). The sub-clause thereafter provides that a judicial member constituting the Industrial Court for the hearing of those proceedings “is to continue” from 8 December to hear and determine the matter sitting as the Supreme Court. The reference to a hearing, in the present context, is otiose as the matter is reserved but the expression “to determine the matter” in cl 66(2)(a) involves, as discussed above, the delivery or entering of a judgment in the part heard proceedings as continued in this Court by cl 66(2) (by the former judicial member of the Industrial Court, after appointment to the Supreme Court, sitting in the Supreme Court to deliver judgment).

25. In conformity with Pt 18 of Sch 4 of the Act, then, it falls to this Court to determine the appeal brought by the appellant under s 197B of the Act against the impugned decision. This judgment and the orders therein constitute that determination.

26. To the extent it is necessary to so find, I have, pursuant to cl 66(2)(b), had regard to the record of proceedings before the Industrial Court (which incorporates, in the Appeal Books, the records before the Commission below) in reaching this judgment.

27. Having regard to the way in which the appellant framed his appeal, it will be necessary to descend to the detail of the evidence and submissions before the Commissioner below, notwithstanding the legislative limitation on the appeal. I emphasise that references to the evidence are not to evaluate the evidence, as such, but rather to examine more closely the factual premises upon which the appellant constructed his contentions under s 197B. In that context I would observe that an appellate court needs to guard against being seduced to convert a limited appeal jurisdiction into an unlimited jurisdiction effectively rehearing the evidence and deciding for itself what the outcome should be.

The Proceedings Below

28. Following a failed conciliation, Commissioner Tabbaa made directions to prepare the matter for hearing. The parties were required to file outlines of submissions and statements of evidence upon which they intended to rely.

29. The order of presentation of cases is dealt with in s 100G of the Act. It provides:

100G Presentation of cases

(1)  A public sector employer must present the employer’s case to the appellant at least 7 days before the hearing of a disciplinary appeal.

(2)  At the hearing of an appeal under this Part, the public sector employer’s case is to be presented first.

(3)  Nothing in subsection (2) removes from an appellant or any other person the onus of proving any ground on which the appellant relies.

30. Sub-section 3 makes clear that, although there is a change to the order of presentation of cases when compared, for example, to unfair dismissal proceedings, the legal burden of making out a ground remains with the party contending for that ground, even though the evidentiary burden, in that respect, may shift during the course of the proceedings.

31. Consistent with the terms of the legislation, the respondent’s outline was required to be filed first.

32. In its outline filed on 7 September 2015, relevantly to this appeal, the respondent contended, in summary:

1. “[T]hat the explanation the Appellant provided is inconsistent with other evidence, including that of his wife and lacks credibility. These inconsistencies were highlighted in Mr Welzel’s investigation report (PW1) and in Ms Melissa Eames’s statement”;

2. “[T]he reviewing officer who imposed the punishment of dismissal had delegated authority to impose such punishment”;

3. The mitigating circumstances advanced on behalf of the appellant “are dubious”;

4. During the disciplinary process the appellant:

1. Did not demonstrate any contrition;

2. Sought to attribute blame on others;

3. Took little or no responsibility for his actions;

4. Denied knowledge of the “Lost Property Procedure 49.07” (‘Lost Property Procedure’) despite receiving a copy only four weeks before the breach; and

5. Sought to blame the system.

33. In his outline filed 29 September 2015, the appellant contended there were four evidentiary issues. They were that, in summary:

1. The onus was upon the respondent to prove serious misconduct;

2. The onus was on the balance of probabilities and must satisfy the Briginshawv Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (‘Briginshaw’) standard;

3. The respondent’s case rose no higher than showing the appellant made a simple mistake; and

4. The conclusion (in (3) above) was compelled by the objective facts.

34. Importantly, the outline did not raise any issue as to who made the decision to dismiss or whether that person held the delegation so to decide.

35. In its outline in reply the respondent contended that, in summary:

1. It was inappropriate to characterise the allegation it had made other than as set out in the E1;

2. There was an issue as to whether there was a “direction” from Era Alimonti, one of the “Lost Property Officers” at the depot, to the appellant;

3. The assertion of an “honest mistake” made by the appellant must be rejected;

4. Even if it be accepted that the removal of the items from the revenue room to his car was an honest mistake, “[w]hat followed was a series of dubious explanations and can not be accepted as a ‘simple mistake’”;

5. The appellant’s evidence relating to matters under review had been inconsistent and particular reference was made to:

1. The appellant’s claim in response to the E1 and to Melissa Eames, Senior Staff Supervisor at Leichhardt depot, that he had never seen the Lost Property Procedure), or been trained in it;

2. The sending of an email to the appellant attaching a copy of the Lost Property Procedure just four weeks prior to the incident;

3. The appellant’s statement filed in the proceedings suggesting he was fully conversant with the Lost Property Procedure;

4. The appellant’s categorical denial to Paul Welzel, Revenue Protection Manager in the respondent’s “Revenue Protection Unit”, until being shown the CCTV footage, of having looked, checked or searched through the items in the blue bins; and

5. The appellant’s denial of seeing the tags on the items when he admitted to conducting a “brief check” and seeing the chocolates amongst the items.

6. Reinstatement or reemployment was not practicable due to the loss of trust and confidence particularly because of inappropriate Facebook posts made by the appellant post-employment.

36. Ms A Phan, a Senior Workplace Relations Consultant in the employ of State Transit Authority, who appeared for the respondent below, said in her opening submissions:

Now, the facts of the case are largely not in dispute. It’s more the inferences from those facts that are the main issues of contention in this case, Commissioner.

Now, there was an investigation into the events of Saturday, 11 April. It was found that the allegation against Mr Marroun was substantiated. The reviewing officer considered the seriousness of the allegations and also

Mr Marroun’s conduct during the investigations, including a number of inconsistent statements that he made and ultimately the reviewing officer made the determination that Mr Marroun be dismissed from the position of duty officer.

(Emphasis added in italics)

37. The respondent filed and relied upon statements of four witnesses: Karolina Corsham, Lorna Hutchings, Paul Welzel and Melissa Eames. The latter two witnesses had each made statements filed in reply in addition to their primary statements. Each of those witnesses was required for cross-examination. The respondent drew attention to its reliance on two statements attached to Mr Welzel’s investigation report by persons not available at the time of hearing. That evidence was admitted, subject to considerations of weight.

38. Evidence was led as to the procedure and practice in relation to the receipt and disposal of lost property. Ms Corsham was, at the time of giving her evidence, the Administration Officer at Kingsgrove depot. Her evidence may be summarised, relevantly, as follows:

1. She had a range of responsibilities in her role as depot Administration Officer which included being, along with the Administration Officer (Revenue) (Ms Alimonti), one of the ‘Lost Property Officers’ at the depot;

2. Ms Corsham and Ms Alimonti had primary responsibility for the handling of lost property between the hours of 8am and 4pm Monday to Friday;

3. Within those hours the two officers would record the details of lost property items (such as information as to where and when the property was found and any identifying features such as names or contact details) in the ‘lost property register’ based on the ‘lost property slip’ which was intended to be completed by the employee finding or handing in the item;

4. A tag would then be prepared noting the item number in the lost property register, and the tag and the lost property slip would be attached to the item;

5. The tagged items were then placed in blue plastic bins which contained items found during the week and which were often stored in a small room next to the safe within the ‘revenue room’;

6. Outside the hours of 8am and 4pm Monday to Friday, Duty Officers assisted with the receipt, registering, tagging and storing of lost property items in the revenue room;

7. Each week, usually on a Friday, Ms Corsham would go through the blue bins and clear items for sale by auction (high value items), donation to charity (low value items) or simple disposal (e.g. perishable items);

8. If the items were to be donated to charity she would remove the tags and lost property slips and any items of personal identification, such as student cards, would be removed and shredded. The items were then placed in garbage bags and placed in, or next to (if the item was bulky), the clear plastic bin by the revenue room door;

9. On Friday 10 April 2015, Ms Corsham went to the revenue room and removed the blue plastic bins from the small room to the desk within the revenue room with the intention of sorting the items to be disposed of. However, she was distracted by other duties and decided to return to the task on the following Monday morning. (Ms Corsham acknowledged that strict compliance with the written procedure required high value items such as mobile phones and wallets to be placed in a safe and that she had not done so on that occasion. She was not disciplined for her failure.);

10. On the following Monday, when Ms Corsham went to the revenue room to complete the task, she discovered the blue plastic bins empty;

11. She initiated inquiries to discover what had transpired which led to the appellant’s acknowledgement that he had removed the items.

39. Ms Hutchings, like the appellant, was a Duty Officer at Kingsgrove depot. She gave evidence of her involvement in relation to lost property which may be summarised, relevantly, as follows:

1. It was part of her role as a Duty Officer to assist in the disposal of lost property by taking items assessed as of low value to charity bins;

2. She regularly worked the morning shift on a Saturday;

3. The practice at the depot was for Ms Corsham or Ms Alimonti to tag items of lost property with information as to where and when the property was found and any identifying features such as names or contact details;

4. If the items were not claimed within the prescribed time Ms Corsham or Ms Alimonti would clear them for disposal;

5. If the items were of low value the responsible officers would clear the items by removing the tags, placing them in plastic bags and placing those bags in a clear plastic bin in the locked revenue room;

6. The revenue room, which was under CCTV surveillance, was locked and accessible only by authorised officers with appropriately coded swipe cards;

7. When preparing to leave for home, Ms Hutchings would go to the revenue room at the depot where she would check the items left for disposal to ensure they were no longer tagged;

8. She would also sometimes look at items through “idle curiosity” and had from time to time asked senior managers for permission to keep items such as books for the depot library rather than take them to the charity bin;

9. It was not open to her to otherwise take items cleared for disposal for her own use;

10. The choice of which charity bin to use was a matter for her;

11. She regularly placed the items in her own car to take them to the charity bin on her way home;

12. On the day in question she, for the first time, saw blue plastic bins on the table in the revenue room as well as the clear plastic bin on the floor;

13. She inspected the items in the blue bins, found them tagged and, concluding they were not cleared for disposal, left them there;

14. She also inspected the contents of the clear plastic bin, found no tags and removed the items to the charity bin.

40. Ms Alimonti was one of the persons referred to above who was not called to give evidence. A statement she had made in the course of the respondent’s investigation was part of the report attached to the statement of Mr Welzel. Included in that statement was confirmation that Ms Alimonti spoke to the appellant on Friday 10 April 2015. The terms of the conversation recorded in that statement differed, to a degree, from the version advanced by the appellant but it was common ground that Ms Alimonti at least mentioned to him there were items in the revenue room ready to be taken to charity. I note that the respondent sought to rely on Ms Alimonti’s version of the conversation and the Commissioner, rightly, observed that the weight he could give to evidence from a witness not called may not be as much as that led from witnesses called and cross-examined.

41. An investigation was conducted by Mr Welzel at the request of a Mr Reardon, General Manager, Fleet Operations and Infrastructure. Mr Welzel was based at Leichhardt and had no line reporting relationship with the officers at Kingsgrove. Having undertaken a preliminary investigation he determined there were grounds for a formal disciplinary investigation. Mr Welzel issued to the appellant a “Form E1 that set out the allegation against him” (as set out above at [2]) and particulars of that allegation. The E1 also sought a written explanation from the appellant.

42. In his written response the appellant summarised his position as simply seeking to help by complying with an instruction given to him by management and doing what was common practice, done by him and other Duty Officers, for the previous four years. The appellant’s response may be summarised, relevantly, as follows;

1. On 10 April 2015, Ms Alimonti asked the appellant to dispose of items in the revenue room;

2. He replied that he was too busy that day but would do it the following day;

3. Ms Alimonti accepted his response;

4. The following day the appellant went to the revenue room and saw two containers on the desk which he assumed contained the items for disposal;

5. There were no other items visible;

6. He “did not look, check or search through any of the lost property as [he] was not interested at all in any kind of these items”;

7. As the charity bins at Kingsgrove station had been permanently removed he could not ask other staff to dump the items in those bins as he had often done in the past;

8. As he was aware of certain charity bins located near his home he decided to drop the items there on his way home;

9. He had directed others to drop items at the bins in Kingsgrove and personally taken items there himself in the past;

10. He was aware of other Duty Officers, including Ms Hutchings, doing likewise;

11. Everyone at Kingsgrove depot was aware of this method of disposal;

1. The task was “especially done on the weekend”;

2. The procedure had been used since he transferred to Kingsgrove depot four years earlier;

3. The depot Manager was aware he dealt with lost property and “was alright with it”;

4. He was upset and disappointed at receiving “an E1” for something he was instructed to do by Ms Alimonti;

5. Specific to the particulars of the allegation -

1. He regarded himself as acting in a professional manner by complying with an instruction he received from Ms Alimonti;

2. He was authorised to remove lost property by the instruction he received;

17. To the best of his knowledge he had never seen the Lost Property Procedure and never received specific training in it.

43. After considering the appellant’s response, Mr Welzel decided it was appropriate to conduct an interview with him to clarify certain matters. In the course of that interview the appellant did the following:

1. Described the practice of receiving, tagging and registering lost property at Kingsgrove depot;

2. Accurately described the purpose of the tags;

3. Denied any knowledge of removal of tags indicating that that was the Revenue Officer’s responsibility;

4. Said that he was not thinking about tags when he removed the items;

5. Indicated that he had never considered whether he would remove items from the revenue room if they were still tagged;

6. Reiterated his reasons as to why he removed the items from the revenue room;

7. Reiterated on several occasions that he did not “look, check or search through any” of the lost property;

8. Described removing the bins one at a time and dumping the contents in his car where they remained until he finished his shift;

9. Indicated that he forgot about the items of lost property in his boot until he was having dinner and mentioned them to his wife;

10. Stated that she offered to take the items the following day to the charity bins;

11. Said he thought no more about the items until receiving a call from the depot on Monday morning immediately after which he and his wife sought to recover the items;

12. Indicated he did not remove any tags;

13. Said he saw one mobile phone on the floor in his lounge room;

14. Stated that when he was carrying the second bin to his car he noticed a box of chocolates;

15. Said that after being shown some still photographs from the CCTV footage he:

1. Identified the clear bin near the door as the bin which usually contained the items to be taken to charity;

2. Indicated he had taken items from that bin in the past;

3. Indicated that it was the first place he looked for the items to be disposed of when entering the revenue room but that bin was empty;

4. Said the desk on which the blue bins were placed was usually the place where items to be collected by their owners were placed; and

5. Agreed he was looking in the bins but could not say why;

16. Agreed that the video from the CCTV showed him looking through the blue bins containing the lost property;

17. Explained that, when previously asked, he had no recollection of looking through the bins but his recollection had been refreshed;

18. Explained that he was looking through the bins to do a “routine check” and that:

1. He did not look for tags, only perishable items and items such as umbrellas which might be used in the office; and

2. Equally, he was not looking for wallets or mobile phones only items such as umbrellas or sunglasses.

44. Mr Welzel also interviewed Mrs Marroun who had volunteered for the same. Although there were some disparities, her account generally accorded with that of her husband’s. Mrs Marroun explained she removed the items from her husband’s car boot while he was sleeping on the Sunday morning and that she also removed the tags. She placed the items in plastic bags. In doing so, Mrs Marroun noticed the chocolates and mobile phones and thought they should not go to the charity bins. Out of curiosity she placed the “newer” mobile phone on the charger, but intended to ask her husband if the phones should be recycled. After the appellant left for work she took the plastic bags containing the items to local charity bins.

45. Mr Welzel found that the appellant:

1. Had removed lost property items from the revenue room at Kingsgrove depot;

2. Did not have authority to remove the items;

3. Failed to check that they were items set aside for disposal; and

4. Did not return some of the items when requested to do so.

46. Mr Welzel was cross-examined as to whether he gave consideration to a number of factors in coming to his conclusions. More relevantly to this appeal, in cross-examination he was asked to confirm that, in his report, he did not find that the appellant was dishonest in his dealings with the lost property. Counsel for the appellant sought to stress this proposition in his cross-examination. However, in the course of that cross-examination, in particular as to one aspect of the interview with the appellant, Mr Welzel gave the following evidence:

Q. And then you go on to say, “This was clearly contrary to what I viewed on my initial check of the depot CCTV”?

A. Correct.

Q. Now, did that lead you to doubt the veracity of what Mr Marroun had said?

A. No, that’s why I asked him several times when I was doing the record of interview and then showed the photos to him, to ensure that he understood my question.

Q. So, did that, did Mr Marroun saying that he did not look, check or search through any of the lost property--

A. Yes.

Q. --lead you to doubt the veracity of what he said?

A. It indicated to me that he either didn’t understand the question or yes, he wasn’t being truthful because I viewed the CCTV, it showed me one thing and then I asked him a number of times if he’d looked at it and he kept saying, “No” and that’s why I then sat down, asked him again, showed him the photos and the footage, to ensure that he understood quite clearly what I was talking about.

Q. Well, when he was asked whether he looked at it--

A. Yes.

Q. --as opposed to looked, checked or searched through--

A. Yes.

Q. --he openly admitted it, didn’t he?

A. After he saw the photos and that then he admitted it, yes.

Q. That’s right?

A. Yes but not before.

(Emphasis added in italics)

47. Ms Eames, who was employed as Senior Staff Supervisor at Leichhardt depot, gave evidence that she was the reviewing officer tasked with considering Mr Welzel’s investigation report. Amongst other things, Ms Eames noted that the appellant denied having seen the Lost Property Procedure but considered that as a Duty Manager he knew or ought to have known those procedures. Further, she noted an email was sent by Anthony Robb to all staff in March 2015 reminding them of the Lost Property Procedure, asking that all staff “re-familiarise” themselves with that policy and attaching a copy of the same.

48. Ms Eames satisfied herself that the investigation had been procedurally fair and also considered the findings contained in the report to be appropriate. On 12 May 2015, Ms Eames met with the appellant and his union representative to advise the outcome of the investigation. Ms Eames made a file note of the meeting in which she recorded that she advised the appellant that the breach had been found proven, that it amounted, in her view, to serious misconduct, and that dismissal may be an appropriate punishment. The appellant was asked if he wished to present anything to be considered in relation to punishment. His union representative advanced several factors in mitigation which were also set out in the file note.

49. Ms Eames also gave evidence that she had delegated authority to implement punishments under the Transport Administration (Staff) Regulation 2012 (NSW). In her subsequent report she recorded her conclusion that the appropriate punishment was dismissal. A “Notice of Punishment” was subsequently issued under the hand of the Kingsgrove depot Manager, Mr Robb. The form described Mr Robb as the “Delegated officer responsible for the disciplinary decision”. In cross-examination, Ms Eames was unable to recall, and ultimately doubted, whether she drafted the notice of punishment. Mr Robb was not called.

50. Ms Eames also gave evidence in relation to matters advanced by the appellant in mitigation. Her evidence in that respect may be summarised as follows:

1. The appellant’s claims as to loss of superannuation benefits appeared to be overstated as he was eligible to take or defer his benefits from age 58 (which he had reached);

2. The appellant’s claim as to loss of gold pass travel benefits should be understood in the context that he was offered the opportunity to resign which would have allowed retention of those benefits; and

3. The appellant’s claim to be supporting nine family members was different from that which was advanced on his behalf in the meeting she held with him prior to determining dismissal in which it was said he sent money to his sister-in-law who had a child and his mother was ill.

51. Evidence from Ms Eames indicated she had conducted a search of the appellant’s Facebook account and noted comments naming a Mr Reading and Mr Welzel and being highly critical of the respondent, stating that: “[the respondent is] bastart and they really criminal with stars”. The posts also contained a representation as to a comment attributed to the “reviewing manager” to the effect that she did not think dismissal was appropriate and she would recommend a “little penalty”. Ms Eames denied making any such representation. While it was not suggested in cross-examination that she was incorrect about that, it was suggested to her, and she emphatically denied, that she said words to the effect: “I think I’ve got a good option for you. I’ll try but I have to talk to someone more senior”.

52. The Lost Property Procedure was included in the evidence. It was a document of 10 pages which was said to detail: “[T]asks involved in the recording, handling and disposal of property that is left on a bus, ferry or State Transit location by an unknown person.”

53. Section 2.3 of the Lost Property Procedure was titled “Handing in Lost Property”. In summary it provided:

1. An employee who found lost property was to hand it to the Lost Property Officer as soon as practicable;

2. The employee was to complete a lost property slip (which must specify prescribed information) and provide that to the Lost Property Officer;

3. The Lost Property Officer was to ensure that all lost property was received, inspected and stored in a secure area adequately covered by CCTV (section 2.5 made specific provision for placing valuable items in a safe).

54. Section 2.4 was headed “Registers”. The first paragraph specified: “The authorised Lost Property Officer must tag each item in number sequence and enter the details into the Found Register” (emphasis in original).

55. Section 2.13 was headed “Unclaimed Lost Property Items for Release”. It made provision for disposal at the conclusion of the minimum holding period imposed by the Impounding Act 1993 (NSW). It provided the guidelines in relation to auctioning high value items, donating low value items and discarding items of no monetary value and which were not acceptable to charity organisations. It also made provision for the protection of personal information by “wiping” information on high value IT items such as laptops and smartphones before sending them to auction, and the destruction of low value IT items such as USB sticks. The section made no mention of removal of “tags”, however, provides as follows:

“The Depot Manager should determine the appropriate method of disposal with regard to the estimated cost of disposal against the expected proceeds. Items of value such as jewellery, briefcases, and cameras should be listed for auction”

56. The appellant’s evidence in chief was contained in a written statement which he confirmed to be true when he entered the witness box. The statement largely reiterated what he had said in his response to the E1 and in his interview with Mr Welzel. Notably, however, the appellant went further in his statement in that he said that he had satisfied himself, by his brief check of the contents of the blue bins, that the items therein were intended for disposal. He had based that conclusion on his knowledge of the Lost Property Procedure. He knew that food (which would have included the box of chocolates) was to be disposed of on the day it was handed in and items such as wallets, containing identification and credit cards, and mobile phones were to be secured in a safe.

57. The appellant was cross-examined about the inconsistency between his statements to Mr Welzel and Ms Eames about, respectively, his never having seen or being trained in the Lost Property Procedure compared with his supposed reliance on his knowledge of it on the day of the incident to establish, in his mind, that the items must be set aside for disposal. Some extracts of the cross-examination on that topic are as follows:

Q. So would it be fair to say that you are fairly familiar with the lost property procedure?

A. Yes, I’m not denying it, I’m familiar to what people tell me, yeah.

Q. Thank you?

A. I’m not familiar, I didn’t say I’m not familiar.

…

Q. But from your statement here you said that when did the check, you found a chocolate and you knew that these must be due for disposal because the lost property procedure says so, so my question is at that point in time you know of the lost property procedure, so you’re familiar with now, you just don’t give it to me--

A. I know what I suppose to do from lost property procedure, I know what I supposed to do--

Q. Thank you?

A. --take them away.

…

Q. Now yesterday Ms Eames(?) in her statement gave evidence in relation to an email by Anthony Robb?

A. That’s right.

Q. Do you need to see that again?

A. No I have previously saw it.

Q. Okay, do you recall seeing this email?

A. Yeah.

Q. You do, okay. Approximately when?

A. When I come back from holiday, I had a few days off, when I come back, saw my emails, the one from Robb and I think says familiarise yourself with--

Q. Correct, you remember--

A. Exactly, I said I--

Q. Okay, so the email is dated 12 March 2015?

A. Yeah I just, few days after I come back from holiday, yeah.

Q. So you would have opened it around that time, soon after you received the email?

A. No I didn’t open it because I know about it, I’m familiar with it. That’s what - familiarise yourself, I know, I know, I know what to do because they told me what to do when you receive--

Q. So you opened the email but you didn’t read the proper procedure again?

A. No, no, no, no, no I didn’t open the icon, the lost property but I didn’t open it.

Q. Right. But Mr Marroun, the email states, “All can you please read, familiarise yourself with the Lost Property Procedure, I require full compliance?

A. No didn’t say I require for compliance, may I have a look, sorry, I didn’t know it was for compliance. Can you please familiarise yourself with Lost Property Procedure. Yeah I read the top, I know about it and go next one. I didn’t really read all of it.

Q. So even though the depot manager instructed you to re-read the procedure and that he requires full compliance, you didn’t open the attachment and read it?

A. Look we have a thousand emails, if it’s not instruction you must, if something in the urgency he come and tell us, he train us, he educate us like Katherine Giblin(?) when she first come in. That thing you get every day is routine, it’s not like urgent.

…

58. The questions from Ms Phan, and at times the Commissioner, as to the inconsistency between the appellant’s statements occupy several pages of transcript. The appellant displayed a lack of familiarity with his statement as filed in the proceedings. He acknowledged that his “solicitor” was involved in the drafting of his statement. The fact remained he had affirmed it as true and correct at the beginning of his evidence. What emerged was evidence which the Commissioner was obliged to weigh in assessing both the appellant’s state of knowledge as at April 2015 and his credibility. In doing so the Commissioner was confronted by competing versions of his evidence as to the same subjects.

59. The cross-examination was also directed to:

1. The accuracy of the appellant’s claims as to the financial impact of losing his employment;

2. The propriety of taking the lost property home;

3. The propriety of allowing the property to leave his care and control;

4. The propriety of leaving the task to his wife without any information or instruction;

5. The propriety of failing to check that the property had been appropriately dealt with;

6. The propriety of allowing personal information to be revealed by leaving tagged items at the charity bins;

7. The possibility of checking that these items were the ones to which Ms Alimonti referred given the unusual circumstances applying;

8. His knowledge of the respondent’s code of conduct, to which the following extract from his cross-examination applies;

Q. As a supervisory employee, Mr Marroun, you would know about the code of conduct?

A. Of course.

Q. Right.

A. Yeah, what’s the code of conduct.

Q. So you would know that under section 3 of the code of conduct--

A. Yep.

Q. --I haven’t got a copy unfortunately, so I can read it out--

A. So how are we supposed to know that.

Q. One of the responsibilities that it lists is that staff understand the duties, responsibilities and accountabilities of your role and perform these safely, honestly, courteously and fairly--

A. And you explain to me what is it. Come on, I’m ready. My responsibilities often in these procedure, it’s fair to say, it’s my responsibility as a duty officer, and the parcel is right in front of me and in the best of State Transit, that’s exactly what I was doing in my office, exactly what I was doing in my office. And you can ask everybody in State Transit what I do with my job, and they all tell you who I am.

60. Parenthetically I observe this last answer is particularly revealing in light of the appellant’s submission concerning the Commissioner’s assessment of him as a witness. Mr Young criticised the absence of examples in the Commissioner’s decision and invited a review of the transcript which, he submitted, “demonstrated someone who is doing his best to give evidence without being argumentative, dismissive of questions, or repeatedly volunteer[ing] self-serving evidence”.

61. In re-examination, the appellant said he presumed Ms Alimonti had already done the right thing and cleared the items for disposal and that when he saw the bins all the items in them had no value. The suggested inference being that he had no need to check. It did not explain why he nevertheless made a “routine check” as he said he did.

62. Mrs Marroun also gave evidence. It largely corroborated that of her husband. However, there was one point of significant difference in that the appellant said the items in his boot were all loose whereas Mrs Marroun said, when she opened the boot to remove them, that about half were in plastic or canvas bags with the remainder having spilled out and being loose in the boot. This disparity was not explained.

63. At the conclusion of the evidence Ms Phan made her closing submission. She indicated that the respondent relied on the written submissions filed prior to the hearing but wished to add some points in light of the hearing over the prior day and a half. The second point she dealt with was expressed as follows:

Point 2 was in regards to the E1 not alleging that Mr Marroun had been dishonest. The E1 did specify s 3 of the code of conduct, which can be found in PW3. That relates to an employee performing their duties honestly. It’s true the State Transit did not specifically charge Mr Marroun for making false and misleading statement during the investigation process. It was somewhat redundant given the fact that the STA considered the actions on 11 April to be serious enough to warrant dismissal. Both Mr Welzel and Ms Eames did consider the inconsistencies in Mr Marroun’s explanation in deciding whether his explanation of the events on 11 April could be accepted but ultimately they did not accept his explanation. State Transit contends that both Mr Welzel and Ms Eames did examine all available evidence and the inferences and conclusions drawn by them were reasonable in the circumstances.

(Emphasis added in italics)

64. Next, Ms Phan dealt with the proposition that the appellant had made a “simple mistake”. The first point she made about that was that there was not one but a series of mistakes – she identified six. Then she added:

In addition to these mistakes, accepting the explanation provided by Mr Marroun would require the commission to overlook a series of inconsistencies or illogic in Mr Marroun’s evidence. (1) Mr Marroun claimed that he didn’t look, search or check the items. These were his words in the one response. Again he stated that to Mr Welzel at the interview. Mr Welzel asked him not just once but at least five times and he continued to deny looking through the items. He only admitted to it after being shown the CCTV.

(2) He claimed that he never saw the lost property procedure, despite being

e-mailed a copy of it and asked for full compliance by the depot manager only four weeks before. His evidence to the commission suggests that he was familiar with the procedure but that wasn't what he stated in his E1 response that was received by State Transit.

(3) Mr Marroun claimed that he never saw the tags or the lost property slips at any point on the Saturday, despite seeing the chocolate. He was seen to have gone through the box or boxes but he didn’t see the tags. They're not small, Commissioner. They're a reasonable size. That’s the lost property slip and that’s the tag.

(4) He claimed in his E1 response that the charity bins near Kingsgrove station were removed, but Ms Hutchings clearly gave evidence that there are at least four bins within 1 to 2 kilometres of the depot.

Inconsistency number 5, Mr Marroun claimed that his colleague Metin Sahin 5 told him about the removal of the bins on Shaw Street in January 2015, yet

Mr Sahin confirmed

…

PHAN: Now, Mr Sahin confirmed to Mr Welzel, and this can be seen in the attachment to Mr Welzel’s additional statement filed on 16 October, Mr Sahin confirmed to Mr Welzel that he did not have any conversation with Mr Marroun about the removal of the bins. Mr Sahin further stated to Mr Welzel that he didn’t have any knowledge of whether those bins were still there or not. That conversation with Mr Welzel was in October 2015, some ten months after he allegedly told Mr Marroun about the removal of the bin.

COMMISSIONER: Ms Phan, you will accept, I imagine, that when I’m faced with two different accounts of a conversation, one is given by a witness who comes here and gives evidence before the commission and another one who doesn’t, that it gives rise to an approach to the evidence that suggests that I must give more weight to the evidence of the witness who has come forward and exposed to cross-examination about it as opposed to the witness who hasn’t. There’s no contest about that approach to the evidence, is there?

PHAN: Yes, Commissioner, I do understand that there was an issue with

Mr Sahin’s availability. The hearing was listed before we knew that we might need Mr Sahin because that was only - the information about the Shaw Street bins was only filed in evidence by Mr Marroun. So as a result we simply couldn’t--

COMMISSIONER: You tell me that. There’s no evidence of that. Very well.

PHAN: I understand. Thank you, Commissioner. And inconsistency number 6 was that Mr Marroun claimed that he didn’t know the significance of the lost property slips or the tags, despite being an employee of thirty-eight years in State Transit, being in a supervisory role for some fourteen years. He admitted to being aware that the slips mention STA and contain employees’ names but he didn’t know of the significance of these tags and slips. Contrast to this is Mrs Marroun, a non STA employee, upon seeing the tags and the slips for the first time, she took the initiative and effort to remove the tags because she didn’t think that they should go to a charity bin.

Inconsistency number 7, the bags, as we heard by Mrs Marroun, were ripped when Mr and Mrs Marroun found them at Aldi. Mr Marroun said he didn’t replace the bag. Mrs Marroun also said she didn’t replace the bag. Yet when the bags were received by State Transit, as you can see from KC7, there is a photo of how the bags were returned. The bags were intact.

And the last one, (8) evidence was that there was no discussions between the Marrouns on Sunday about where the items had gone. Yet Mr Marroun stated in para 15 of his statement that he mentioned to Ms Hutchings when she phoned him that the items were at Aldi. There was no point on the Sunday that Mr Marroun knew about, yet on Monday he claimed that he told Ms Hutchings the items were at Aldi.

State Transit contends that Mr Marroun and Mrs Marroun’s evidence lacks credibility and logic.

(Emphasis added in italics)

65. Ms Phan then directed her submissions to the evidence before the Commission as follows:

In addition to those inconsistencies about the incident of 11 April,

Mr Marroun also, State Transit contends, he hasn’t been complete or truthful in the presentation of his evidence at the commission regarding the mitigating circumstances. In fact, State Transit contends that he misled the commission in his written statement about the mortgage on his home. Mr Marroun also claimed to be struggling financially without his job with State Transit. Yet his financial information reveals a different story. The $425,000 mortgage on his home turned out to be a mortgage on three investment properties worth approximately $1.2 million.

He claimed that he depends on STA salary as a main source of income to pay for his mortgage and necessity. Yet he also has rental income and savings that he didn’t disclose to the commission initially. It only came out in cross-examination.

He claimed that he could not afford medical treatment subsequent to his exit from STA. Yet there's evidence of a substantial exit payment from State Transit. There’s also superannuation payment and savings. So between his exit from State Transit in May 2015 and November 2015 Mr Marroun was able to put $270,000 into his mortgage.

Mr Marroun has certainly looked after his family well. They are in a financial position that many Australians would envy. They own their own home. They have two taxi plates. They have three investment properties and Mr Marroun also has access to a very generous superannuation scheme. So we contend that it is a long stretch to state that he is struggling without his job with State Transit.

State Transit contends that there is a pattern of conduct or behaviour by

Mr Marroun where he provides incomplete, inaccurate or misleading statements, both during the investigation process and during the presentation of his evidence. The response to the form E1 that was attached to Mr Marroun’s submissions, or statement, I should say, was different to the response he provided to State Transit. The key difference between the two versions was the paragraph where he denied having seen the lost property procedure, which was one of the contentions in this case, one of the points of inconsistency that was brought out in cross-examination.

…

In summary, State Transit contends that there was a valid reason to dismiss Mr Marroun and that his dismissal was not harsh, unjust or unreasonable on the materials available for the commission. State Transit contends that the issue relating to his conduct during the investigation process and post his dismissal from State Transit has damaged the relationship of trust and confidence, given Mr Marroun’s supervisory position, and therefore reinstatement or reemployment is not appropriate in the circumstances.

(Emphasis added in italics)

66. It is perhaps appropriate to remember, at this juncture, that, although the language used in this submission, like that of the Commissioner’s decision, reflected that commonly used in unfair dismissal proceedings, these proceedings were of a different nature. They were an appeal to be determined in accordance with the relevant legislative provisions which were in different terms to s 84 of the Act. Section 100C(2) confers upon the Commission a very wide power which, if exercised in favour of allowing an appeal, may include orders of the kind described in s 100D(1). No issue was raised on the appeal to suggest the impugned decision miscarried on that basis but the distinct nature of such appeals should not be forgotten (see the discussion of this topic in Schoeman at [161]-[164]).

67. Ms Phan also made submissions about the same factors, as well as post-dismissal employment and an overseas holiday, being relevant to any exercise of discretion to award compensation.

68. Mr Young then made submissions on behalf of the appellant. He did so by providing written submissions and supplementing them with oral submissions.

69. Ms Phan made oral submissions in reply for the respondent.

The Commissioner’s Decision and elements of the statutory scheme

70. After recounting the procedural history of the respondent’s investigation of the matter, the Commissioner turned to an argument raised by the appellant for the first time in final submissions, namely, that, absent express evidence demonstrating the decision maker held the appropriate delegated authority to dismiss, the appeal must succeed. That argument now underpins ground 1 in the notice of appeal.

71. Commissioner Newall dealt with the contention in two ways. The first related to the procedural fairness of raising, after the evidence had closed, a contention that there was an issue as to the fact of delegation. The Commissioner concluded that was a course not open to the appellant. (I note that no direct challenge to this approach by the Commissioner was set out in the notice of appeal. At best, ground 1 carries an inference that the Commissioner was obliged to determine the evidentiary issue.)

72. The second way the Commissioner dealt with this contention was by reference to the evidence. He noted the evidence included a document signed by Mr Robb purporting to suggest he held delegated authority. No evidence was led to contradict that proposition. His conclusion as to the absence of contradictory evidence was not challenged on appeal.

73. Next, the Commissioner dealt with the Commission’s powers in relation to a disciplinary appeal. I will digress to examine some more of the statutory scheme in this context. As I have noted, the appeal was brought pursuant to Pt 7 of Ch 2 of the Act. The appeal itself is authorised by s 98 which relevantly provides as follows:

98   Right of appeal

(1)  Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer.

(2)  Such an appeal may be made on the ground that the decision appealed against was made substantially in reprisal for a public interest disclosure within the meaning of the Public Interest Disclosures Act 1994.

(3)  …

(Emphasis added)

74. An “appealable decision” is defined by the intersection of ss 91 and 97 to include a decision to dismiss an employee. The Commission’s powers in the disposition of such an appeal are specified in ss 100C and 100D. They provide as follows:

100C   Decisions with respect to appeals

(1)  (Repealed)

(2)  The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit.

(3)  Without limiting the generality of subsection (2), if in relation to a disciplinary appeal it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Commission:

(a)  is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits, or

(b)  may quash the decision and remit the matter back to the employer with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the employer.

(4) The decision of the Commission in respect of an appeal is, except as provided by section 197B, final and is to be given effect to by the employer against whose decision the appeal was brought.

100D   Orders by Commission with respect to payment of salary and continuity of employment

(1)  Without limiting section 100C, if the Commission decides to allow a disciplinary appeal, the Commission may:

(a)  if the employee has paid a fine imposed by the employer or his or her pay has been forfeited—order the employer to repay the amount of any such fine or forfeited pay, and

(b)  order the employer to pay the employee an amount stated in the order that does not exceed the remuneration the employee would, but for the decision of the employer, have received from the employer, and

(c)  order that any period of employment of the employee with the employer is taken not to have been broken by the decision of the employer.

(2)  Any such order by the Commission must be given effect to by the employer.

(3)  Nothing in subsection (1) enables the Commission to make an order for compensation in the case where a person is not reinstated or does not continue in employment.

75. Returning to the decision below, the Commissioner then referred to these provisions although he did not consider it necessary to set them out in his decision. He also referred to authorities, including Schoeman, which considered the scope of the jurisdiction. The Commissioner concluded that the appeal:

1. Was an appeal de novo;

2. Was not simply a review of the decision of the initial decision maker;

3. Did not constrain the Commission merely to accept or reject the decision under challenge;

4. Was not confined to a consideration of whether the alleged misconduct occurred but extended to all matters related to a review of the decision to dismiss;

5. Involved the exercise of a discretion by the Commissioner having regard to all material relevant to that discretion including supervening facts; and

6. Was protective rather than punitive in nature.

76. With the possible exception of the last point, which was the subject of ground 2 of the appeal, no challenge was made to those conclusions of the Commissioner.

77. The Commissioner summarised the evidence as to the facts. He concluded that the appellant’s actions in removing the lost property items from the revenue room did not amount to a breach by him of the Lost Property Procedure. The Commissioner found (at [55] and [58]):

55 … He removed what he thought were items that were to be disposed of according to the established local procedure. He took the wrong items; the overall result was that the procedure was breached.

…

58 So far as Mr Marroun’s conduct is assessed against STA procedures he was, it might be said, careless in not checking the materials more thoroughly, or asking someone if they really were the materials he had been asked to dispose of. …

78. The Commissioner found (at [59] – [62] and [65]) the appellant’s behaviour may have warranted disciplinary action but the punishment meted out was disproportionate to the offence, particularly so when the evidence showed no other officer was disciplined.

79. The Commissioner was also critical of the reviewing officer for failing to consider whether the conduct as found amounted to misconduct as alleged. He observed at [66]:

Although Miss Eames in her written report to the delegate recommended dismissal as a punishment, she nowhere in that report assessed whether what Mr Marroun had done could be characterised as misconduct. …

80. The Commissioner’s conclusion is correct at least in relation to that part of the report which was in evidence. It appears only the last page was attached to Ms Eames’ statement. Although in paragraph 7.4 of her report she noted “the seriousness of the matter”, that part of her report did not expressly find “misconduct”. I have earlier noted that also attached to Ms Eames’ statement were her notes of the meeting with the appellant to discuss the outcome of the investigation in which she recorded her conclusion that the breach amounted to “serious misconduct”.

81. Nevertheless, there is no doubt the Commissioner concluded that the respondent’s decision-making process was flawed.

82. It is important to note that it was in the context of these observations and findings that the Commissioner observed, at [67]:

The STA’s conduct in this matter invites the conclusion that the officers tasked with making a decision on Mr Marroun’s employment believed that Mr Marroun had in reality taken the property deliberately for his own purposes in the knowledge that it was not property to be disposed of, but that the STA lacked the courage of its convictions to put that as an allegation to Mr Marroun.

83. In my view, that was merely an observation by the Commissioner musing or speculating as to why the respondent’s view as to appropriate punishment differed so markedly from his own assessment.

84. The Commissioner then turned to other considerations relevant to the exercise of his powers and discretion. There was no suggestion that he was wrong so to do. Rather the challenge was to the findings he made in the course of that assessment. He considered two matters of fundamental importance:

1. The appellant’s conduct in dealing with his employer about the matters raised with him; and

2. His post-employment conduct.

Conduct in dealing with his employer

85. As to this matter, the Commissioner:

1. Observed, at [75], that the appellant had “an absolute obligation to be candid” and noted the obligation of candour had implications for the future employment relationship as well as past conduct;

2. Found, at [76], that the appellant was not candid;

3. Found, at [77] - [78], that some parts of his account were fabricated to prevent a finding, both by his employer and by the Commission, that he (at [78]):

[k]new very well, before he received the call from the STA advising him that he had taken the wrong items, that his wife was dealing with the lost property items he had brought home as if they were hers to deal with as she wished, and that he condoned her doing so.

4. Concluded, at [82], the evidence given to the Commission and the account given to the respondent by the appellant were not credible;

5. Observed, at [83], that the statements of evidence given by the appellant and Mrs Marroun were:

[I]n good part not statements of evidence but rather a series of arguments and factual propositions patently designed to head off the single inescapable inference about the conduct [earlier referred to].

6. Considered, at [84], the appellant’s evidentiary statement unreliable (in doing so referring to the inconsistency as to the appellant’s knowledge of the Lost Property Procedure);

7. Found, at [89], that the appellant in his oral evidence was a far from impressive witness in that:

[T]he was argumentative, dismissive of questions, and repeatedly volunteered self-serving evidence which was not responsive to questions, but which in good part was argument advanced to demonstrate that he could not have known what the items were and that he had no knowledge of the detail of what his wife did with them until the call from the STA.

8. Observed, at [92], that:

I am of course wary of forming views about the credit of witnesses from demeanour alone, being mindful of what was said by Kirby P in Chambers v Jobling (1986) 7 NSWLR 1 at 9. However, the impression, in the cases of both Mr and Mrs Marroun, that they were fabricating parts of their evidence was overwhelming. My observation of their demeanour and manner of giving evidence is an essential part of the finding that their evidence is not to be accepted.

9. Observed, at [93], that some parts of the evidence of the appellant and Mrs Marroun were inherently improbable including that:

1. The appellant had no knowledge as to whether the items were still in his boot when he left for work the next day;

2. Nothing was said between himself and his wife on that topic;

3. Mrs Marroun removed and kept the property tags in a separate bag “because she didn’t know what they were”;

4. Her search through the bags of property was solely motivated by a concern that other perishable items may be there;

1. A premise upon which the submission is based is that the Commissioner was obliged to determine whether Mr Robb had the necessary delegated authority, even if that issue had not been raised by the appellant. However, the premise is misconceived for the following reasons:

1. The proposition is inconsistent with the requirements of s 100G(3) of the Act.

2. Whilst sub-s (3) is, no doubt, intended to deal with the reordering of proceedings to provide that the public sector employer will present its case first in order (in contradistinction to unfair dismissal proceedings), it plainly provides that the appellant (or any other person) has the onus of proving any ground upon which the appellant relies. The provision casts a legal burden upon the appellant. That much is demonstrated by the use of the words “the onus of proving” and its connection to the words “any ground on which the appellant relies” in the sub-section. There is a further indicator that the sub-section conveys an intention of constancy such that the burden does not shift. This is achieved, in part, by the words “[n]othing in subsection (2) removes” appearing in the sub-section.

3. I note that those conclusions adopt, as part of the reasoning process, the distinction between a legal burden and evidentiary burden as discussed by the Full Bench of the Industrial Relations Commission in Tredinnick v Commissioner of Police [2016] NSWIRComm 14 at [34]–[38] and [67].

4. In this matter, the ground upon which the appellant relied is that the decision to dismiss was invalid because of an absence of delegation. Section 100G(3) casts a burden of proof upon the appellant to establish that ground in a way that is incompatible with the notion of the Commissioner having an independent obligation to make such an inquiry. The ground must both be advanced by the appellant and established by evidence brought by the appellant (although the evidentiary burden as to the ground may shift as discussed below);

5. Whilst s 163(1) provides that the Commission is not bound to act in a formal manner (sub-s (1)(a)), has a broad discretion to inform itself on any subject matter (sub-s (1)(b)) and is to adjudicate without technicality or legal forms (sub-s (1)(c)), that broad procedural licence is constrained by the requirement that the Commission inform itself in any way that it considers to be “just” (sub-s (1)(b)) and is to act on the substantial merits of the case (s 163(1)). The Commission is also required to act with equity and good conscience (sub-s (1)(c)). The combination of those constraints on the capacity of the Commission to adopt flexible and informal procedures results in the Commission being constrained from making assessments of the kind contended for by the appellant unless first advising the parties that the Commission would do so. It is not explained why the Commission would take that course in circumstances where the issue is raised for the first time at the closing stages of the hearing and where, in that context, the Commission expressly declined to permit a late application by the appellant to raise the delegation issue;

6. In any event, the Commissioner is obliged to determine the issues raised by the parties not conduct a general administrative inquiry. Putting aside for one moment the provisions of s 100G(3) of the Act, in civil litigation, it is the parties that identify the issues and the tribunal which determines them. Trial by ambush has long been abandoned in civil litigation. A party is not free to rest mute about the existence of an issue and wait for the ‘gotcha moment’. The appellant had every opportunity to raise the issue before the hearing commenced and did not. Nor did he raise the issue during the taking of evidence. The issue involved questions of fact. The respondent was entitled to proceed on the basis that no issue existed as to appropriate delegation, and therefore it was not required to adduce evidence bearing upon the validity of the dismissal vis-à-vis the existence of a valid delegation of an authority to dismiss;

7. Thus, in civil proceedings the legal burden falls upon the party asserting the proposition, even if that proposition is a negative (see the discussion in (e) and (f) below and note this proposition applies with equal force with respect to the burden imposed by s 100G(3)). The appellant needed to assert the proposition that the decision maker was Mr Robb and he was not appropriately delegated. If the appellant put those assertions in issue he would then need to lead some evidence in support which would then shift the evidentiary onus to the respondent. In this case, he did neither. The only evidence in the case on these issues came from the respondent and it permitted a conclusion that, as discussed below, the decision to dismiss was validly made;

8. In Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Leave Payments Corporation (1985) 1 NSWLR 561 the plaintiffs sought declarations that their employees were not covered by the scheme administered by the defendant. The key issue was whether certain work was of a class usually performed by a carpenter. The plaintiffs asserted it was not. The defendants contended the contrary. Hunt J said at 564:

… What the plaintiffs have to prove in the present proceedings is really in the nature of a negative proposition: that the class of work which includes the installation of prefabricated shower screens is not usually performed by a carpenter. The onus in these proceedings lies on the plaintiffs to prove the negative. The burden of proof required to satisfy such an onus is not usually difficult to discharge, particularly where (as in the present case) the other party has the greater means to produce evidence which contradicts the negative proposition for which the onus-carrying party contends. …

9. His Honour contrasted the civil proceedings with criminal proceedings essentially involving the same issue: He said at 565- 566:

… Were these proceedings a prosecution by the defendant of the plaintiffs for failing to lodge returns (as were the proceedings which led to the decision of Cross J in Builders Licensing Board v Pride Constructions Pty Ltd) the onus would be on the corporation to establish that the class of work which includes the installation of shower screens was usually performed by a carpenter. … I do not, however, intend to suggest that only comparatively slight evidence is required for the plaintiffs to discharge their onus in this case as in the case where the facts are peculiarly within the knowledge of the defendant: cf Parker v Paton (1941) 41 SR (NSW) 237 at 243; 58 WN 189 at 192; Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371. That is the so-called “scintilla” doctrine. Obviously, it does not apply to the position here. What I do intend to suggest is that the plaintiffs' burden of proof of the negative proposition for which they contend is not as difficult in this case as it might otherwise have been because of the defendant's greater means to produce evidence which contradicts that proposition. That is a pale reflection of the “scintilla” doctrine. It is but an application of the more general maxim, not restricted to cases where the facts are peculiarly within the knowledge of one party, that all evidence is to be weighed according to the proof which it was in the power of one side to produce, and in the power of the other to have contradicted: Blatch v Archer (1774) 1 Cowp 63 at 65, 66; 98 ER 969 at 970; Stephen's Digest of the Law of Evidence, 12th ed, article 104; Stoney v Eastbourne Rural District Council [1927] 1 Ch 367 at 405; Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163 at 178; Ex parte Ferguson; Re Alexander (1944) 45 SR (NSW) 64 at 70; 62 WN 15; Hampton Court Ltd v Crooks (at 371-372); R v Guiren (1962) 79 WN (NSW) 811 at 813.

2. Strictly speaking, Commissioner Newall did not make a finding that Mr Robb had delegated authority. His observations at [13] of the impugned decision are obiter because, by the proceeding paragraphs [7] - [12], he excluded the point from the proceedings. In paragraph [13] he said that the person who affected the appellant’s dismissal by creating a written instrument to that effect “prima facie” had the delegation to dismiss. That was not a finding that Mr Robb had the delegation but that that was prima facie the case having regard to the instrument of dismissal. As the Commissioner put it, the proposition was never contested;

3. The contention advanced by the appellant that there was no evidence to support a finding that Mr Robb held the necessary delegated authority to dismiss him suffers from two limitations discussed at (4) to (10) below;

4. The Notice of Punishment contained a representation that Mr Robb was the “delegate officer responsible for the decision”. The appellant did not prove (or seek to prove) that he did exercise such authority. There was countervailing evidence from Ms Eames that she was the decision maker and held the relevant delegation. The Commissioner may have weighed, if he was required to rule on the question, what appeared on the face of the instrument with the evidence of Ms Eames. He may then have reconciled those matters on the basis that there was a difference between making a decision and conveying notice of that decision. At the end of the day, and in circumstances where he had excluded the point, it was sufficient for him to conclude, as he did, that prima facie Mr Robb held the delegation to dismiss. In the absence of the appellant discharging his obligation under s 100G(3) to demonstrate the delegation and the exercise of it was not properly executed by Mr Robb (if a ground regarding the validity of the delegation was raised), the Commissioner was entitled to come to that view. This is not a case where there was no evidence of the existence of a delegation to Mr Robb;

5. In any event, and putting aside the operation of s 100G(3), the absence of an instrument of delegation to Mr Robb does not necessarily deprive the Commissioner of a proper foundation for his finding that Mr Robb prima facie held the requisite delegation. The rules of evidence did not apply in the proceedings. Newall C raised with the parties a question as to the operation of the presumption of regularity (as did I on the appeal). The presumption of regularity (or the maxim “omnia praesumuntur rite esse acta”) was applicable in this case (in fact, this may be what the Commission intended by the expression prima facie). Where a public official or authority purports to exercise a power or do an act in the course of his or its duties, “a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled: Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164. The maxim may be applied in a statutory context and will extend to acts done by a public official – that is, that official has been validity appointed.

6. Transport for NSW (‘TfNSW’) is a New South Wales Government agency constituted as a corporation under the Transport Administration Act 1988 (NSW) (‘TA Act’) (see s 3C). Section 3E of that Act specifies the functions of TfNSW and s 3G provides that TfNSW may, for the purpose of exercising those functions, give directions to, inter alia, the respondent.

7. Section 3C(3) provides that the affairs of TfNSW are to be managed and controlled by the Transport Secretary. Section 3I of the TA Act provides that TfNSW may delegate to an authorised person any functions other than the power of delegation. That delegate may sub-delegate. It is implicit in this provision that the Transport Secretary may delegate.

8. The Transport Service is established under Pt 7A of the TA Act. Transport services are defined in s 3 of the TA Act as including, inter alia, railway services. By s 68C(1) of the TA Act, the Government of NSW may employ persons in the Transport Service to enable the respondent to exercise its functions. Section 68C(2) provides that the Transport Secretary exercises, on behalf of the Government of NSW, the employer functions of the Government in relation to staff employed by the Transport Service. The Transport Secretary may also fix salaries and conditions of employment. Section 68HA(6) provides that the Transport Secretary may delegate any of the Transport Secretary’s functions under Pt 7A of the TA Act to “a person employed in the Transport Service or to a person employed in the Department of Transport”.

9. Clause 30(3)(a) of the Transport Administration (Staff) Regulation 2012 (NSW) (‘TA Regulation’) provides that the Transport Secretary may determine any disciplinary proceedings that have been instituted against a member of the Transport Service by taking disciplinary action with respect to the member.

10. It follows from the aforementioned provisions of the TA Act and cl 30 of the TA Regulation that the Transport Secretary may delegate his disciplinary powers to a person employed by the respondent, as a member of the Transport Service (that is, as an employee of the Transport Service). It is against that power that the presumption of regularity operates such that acts performed by a person who acts in the discharge of the functions provided under the TA Act and the TA Regulation are presumed to be discharged by a person validly appointed to that office who has all conditions necessary to exercise the power, in this case, the power to dismiss.

11. Even if the Commissioner was wrong in his (prima facie) observation that Mr Robb was the decision maker under delegation that is not the end of the matter. That is because, in the alternative, there was evidence of delegation. There was evidence that Ms Eames held the relevant delegation to dismiss, or indeed that she was responsible for the decision to dismiss, in the sense she at least recommended dismissal. There was, therefore, evidence to support a finding of a valid dismissal by the respondent, even if the written instrument signed by Mr Robb was ineffective or invalid (although Ms Eames’ evidence did not establish the instrument exercised by Mr Robb was invalid). If there was a mistaken reliance on a particular source of power or authority to dismiss by Mr Robb, that does not invalidate the dismissal if there was proper authority in another source, namely, Ms Eames.

12. In Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; [2012] HCA 3 at [34] the Court stated:

… A mistake by an administrative decision-maker as to the source of his or her power to make a decision does not necessarily invalidate the decision if it is able to be supported by another source of power. Whether it can be supported by the other source of power will depend upon whether that power is subject to requirements which the decision-maker has failed to meet because of his or her belief as to the source of the power or for some other reason. As Heydon J said in Eastman v DPP (ACT):

If the maker of an administrative decision purports to act under one head of power which does not exist, but there is another head of power available and all conditions antecedent to its valid exercise have been satisfied, the decision is valid despite purported reliance on the unavailable head of power

(Footnotes omitted)

13. Further, there was no suggestion that there was, by Ms Eames, any failure to fulfil “an antecedent obligation”. On her evidence, she made (and believed she made) a decision she was authorised to make and notice of that decision was delivered by Mr Robb. To the extent the representation contained in the Notice of Punishment was contradictory, it would at most raise a factual matter to be weighed by the Commission; one affected by the operation of s 100G.

Ground 2 - Protection of Public

135. Mr Young submitted that the Commissioner fell into error by characterising the jurisdiction at [102] of the impugned decision as “protective of the public service”. On the contrary, he submitted on the authority of Lambert that it is “protective of the relevant vulnerable members of the public for which the relevant public service was working”. The submission made no reference to the Commissioner’s characterisation of the jurisdiction at [21] of the impugned decision in which he said:

It is also clear from the Court’s decision that the jurisdiction being exercised is protective of the public service and the public, and is not merely a punitive jurisdiction, and I expressly follow that approach.

(Emphasis added in italics)

136. In that passage, the Commissioner indicated the approach he would follow in disposition of the appeal. In the following paragraph he referred to authorities including Lambert and Schoeman indicating he was bound by and would follow Schoeman. As I have indicated there was no challenge to the correctness of Schoeman.

137. There was no submission as to the impact of the characterisation (or mischaracterisation) on the decision of the Commissioner. It is difficult to discern what the impact might be other than reinforcing his conclusion otherwise formed. The passage referred to by Mr Young is preceded at [101] by the Commissioner’s emphatic finding that the appellant’s conduct, described in [100] of his decision, precluded restoration of the employment relationship. Thus, it was no more than a reinforcing consideration. It does not require a great deal of imagination to see the link between the need to protect the public from the risk of exposure to an organisation employing, in a position of trust, a person in whom the employer has lost trust and confidence for good reason having regard to the Facebook posts.

138. In my view, the Commissioner’s approach was as set out in [21] of the impugned decision. There is no erroneous decision on a question of law disclosed.

139. I note that, in the course of submissions about ground 13, Mr Young accepted that it was open to the Commissioner to take into account the Facebook posts as a matter relevant to the exercise of discretion. His decision to exercise his discretion in the way he did was, on that basis standing alone, enough to sustain a decision to refuse the application at first instance.

Ground 3 - Error in failing to reinstate

140. In essence, the appellant contended that, in light of the positive findings by the Commissioner, he was obliged to reinstate. The submissions really came down to an argument about the weight of the findings in favour of the appellant versus those against him. That does not raise a decision on a question of law or, for that matter, an error of law. It was suggested that there was Wednesbury unreasonableness and that was then converted to an argument based on House v R (1936) 55 CLR 499; [1936] HCA 40.

141. The reasons for the Commissioner’s exercise of discretion were clearly expressed. The ground simply invites a rehearing of that exercise of discretion. That is not available under s 197B. The ground must fail.

Grounds 4,5, 6 and 7-10 – Procedural Fairness (and the submission re ‘No Evidence’)

142. Although Mr Young originally did not include ground 5 in his grouping of these grounds it became apparent in the discussion extracted above that it fell into the group. The consistent theme of these grounds is an alleged denial of natural justice or procedural fairness. In Elleray, after considering relevant authorities, the Industrial Court concluded (at [67]):

In summary, the present appeal must be dismissed as the challenge by the appellant to an alleged denial of procedural fairness by the Board constituted by Newall C (vis á vis a contention that the Board refused to receive evidence from the appellant as to the November incident) does not constitute a decision on a question of law. The court cannot entertain the appeal pursuant to s 23A of the TAB Act as it exceeds the limitations of that statutory appeal.

(Emphasis added in italics)

143. As there was no challenge to the correctness of Elleray it follows that these grounds must fail.

143. The authority is directly relevant in the present context. In Elleray (at [2]), an appeal lay against “any decision of a Board in the proceedings on a question of law”. This was essentially the same class of appeal as the present matter (see Elleray at [46] to [51]). Further, the authorities relied upon by the Industrial Court in Elleray which formed the foundation of its conclusions as to the limitations of appeals, vis-á-vis procedural fairness grounds, were delivered in the context of predecessor provisions to s 197B

144. There is another reason for the failure of these grounds and that is that they are not made out on the material. The extracts from the respondent’s submissions above indicate that, from the outset of the proceedings, the respondent put in issue the truthfulness and credibility of the appellant’s and Mrs Marroun’s accounts. It cannot be said that the issues were never raised or that the appellant was not on notice. Indeed, Mr Young cross-examined Mr Welzel as to whether he had concerns about the “veracity” of the appellant in respect of his explanations. I have extracted parts of that cross-examination above.

145. The appellant’s submissions also suggested, in respect of grounds 6 to 8 and 10 of the appeal, that the Commissioner did not disclose why he found the appellant had partially fabricated his evidence or was untruthful in certain respects. The argument advanced is, however, simply expressed, a disagreement with the Commissioner’s findings. Mr Young submitted that the reasons advanced by the Commissioner were insufficient on their merits to justify the conclusions reached. Contradiction of the Commissioner’s findings may involve the identification of an erroneous decision on a question of fact but it does not identify an erroneous decision by the Commissioner on a question of law.

146. In so far as it is suggested that there was no evidence to support the conclusions, it is answered by the Commissioner’s analysis of the evidence, particularly that of the appellant and Mrs Marroun, and the assessment of it which he was obliged to undertake in light of the respondent’s submissions, particularly those highlighted in the extracts at [64] and [65] above. The Commissioner’s reasons for forming those adverse conclusions are set out in some detail at [84] – [89] above. In this appeal, no question as to whether the conclusions were correct arises. The question is whether there was evidence before the Commissioner which allowed him to form those conclusions. The answer is yes. The fact that most of the evidence came from the appellant and Mrs Marroun does not avert that result.

147. I also note that the finding to which ground 10 refers was not a finding the Commissioner relied upon to determine the appeal. He said so expressly at [100] of his decision. Accordingly, even if that finding did involve a decision on a question of law, the decision and the finding did not materially affect the Commissioner’s decision and would not justify an order upholding the appeal and setting it aside.

Ground 11 – Briginshaw

149. There has been debate in recent times as to whether Briginshaw has a continuing role as a ‘rule’ of evidence: See Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314 at [174] discussed in Tanwar Enterprises Pty Ltd v Inspector Raymond Welsh (No 3) (2015) 90 NSWLR 199; [2015] NSWIC 8 at [93] – [105]. In courts and tribunals in which the rules of evidence apply, s 140 of the Evidence Act 1995 (NSW) governs the standard of proof in a civil proceeding. In that sense, at least, Briginshaw continues to provide guidance as to considerations which may be relevant in determining proof on the balance of probabilities.

150. The appellant did not propound just how the absence of a specific reference by the Commissioner to Briginshaw constituted a decision on a question of law. Nor did the appellant develop a submission as to what bearing such an omission may have had on the determination of fact or facts in issue in the proceedings below.

151. I have noted above the terms of s 163 of the Act. The Commissioner was not bound by the rules of evidence in the disposition of the case before him. A failure then to apply a “rule” of evidence cannot constitute an error of law in such a case. Even in circumstances where the rules of evidence do apply, the implicit question which leads to the decision on the question of law would be: what standard of proof applies? The correct answer would be the balance of probabilities. The Commissioner expressly referred to that standard at [93] of the impugned decision. He cannot, therefore, be said to have made an erroneous decision on a question of law.

152. This is not to suggest that the Commissioner was under no obligation to have regard to the appropriate standard of persuasion in resolving, on the balance of probabilities, the individual “allegations of material fact before him”: Qantas Airways Limited v Gama (2008) 167 FCR 537; [2008] FCAFC 69 at [126] (see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66 at 449-450). However, the Commissioner’s detailed exposition of his reasoning in relation to the issues before him indicates he approached them conscious of the serious implications involved and recognised that it was necessary for there to exist an appropriate level of persuasion in reaching findings of fact in relation to matters which proved controversial in the appeal. There is no erroneous decision on a question of law disclosed.

Ground 12 - Misapplication of Gilmore

153. In the course of considering how his discretion should be exercised, the Commissioner balanced his findings as to the appellant’s conduct (not amounting to misconduct) and the fabrication of part of his evidence. In doing so he adverted to a decision of Schmidt J in Gilmore v Allied Express Transport Pty Ltd [2006] NSWIRComm 16. In that case, her Honour was exercising the then Industrial Court’s jurisdiction under s 106 of the Act in relation to an unfair contract. Schmidt J found the contract unfair but declined, in the exercise of her discretion, to make money orders in favour of the applicant because of Ms Gilmore’s admittedly untruthful evidence as to certain matters. The case is but an example of a well-established principle of balancing considerations relating to equitable relief. The passage in the Commissioner’s decision does not elevate the authority any higher than that. There is no erroneous decision on a question of law disclosed.

Grounds 13 and 14 – Failure to properly exercise discretion

154. The appellant submitted that insufficient weight was attributed to some factors and one factor was not considered at all. The submission was based on a failure of the Commissioner to expose detailed consideration of these factors in his reasons. The reasons given indicate the Commissioner took a range of factors into account. It is clear from the reasons the Commissioner regarded some factors as having a greater role to play in the exercise of his discretion and he dealt with those in greater detail. There is nothing unusual or remarkable about that approach.

155. Equally the failure to mention expressly one proposition, the unlikelihood of the situation giving rise to the dismissal ever occurring again, does not give rise to a conclusion that the Commissioner failed to take it into account. A failure to have regard to relevant considerations would constitute a decision on a question of law.

156. I observe the Commissioner made no express factual finding as to the matter, but factors relevant to such a consideration - the appellant’s lengthy service, the infrequency of his having to deal with lost property disposal and the unusual circumstances applying at the time - were all referred to by the Commissioner in the course of his reasons and were relevant to his finding on the issue of misconduct. He balanced his finding as to misconduct, implicitly including these considerations, against other matters relevant to the exercise of discretion. In my view, the Commissioner may have been more forthright in his discussion of this issue but I do not think his failure to expressly deal with the question may result in a conclusion that the consideration was ignored.

Conclusion

157. For the reasons given above, I conclude that no error has been demonstrated in any decision on a question of law by the Commissioner in the proceedings below. The appeal is dismissed.

Costs

158. The respondent sought its costs of the appeal. The appellant made no submissions as to costs. I am inclined to award costs to the respondent on the basis of its success in the appeal and the general rule that costs follow the event. I will, however, allow a period of 14 days for any party wishing to make further submissions on costs to do so. Absent any such submission, the respondent shall be entitled to its costs as agreed, or in default of agreement, as assessed and this Court will accordingly make orders.

Orders

159. The Court orders:

1. The appeal is dismissed

2. The appellant shall pay the respondent’s costs of and incidental to the proceedings, as agreed or assessed;

3. Leave is reserved to either party to apply for a different or special order for costs, notwithstanding the terms of Order 2 above. Such an application must be made on or before 27 January 2017 and accompanied by submissions in support of the application. The application and submission in support shall be no longer than 10 pages and be accompanied, over and above the 10 pages, by any document, not otherwise in evidence, on which the party relies. Any party affected by any such application shall have 14 days from the filing and service of such application (and accompanying submission in support) in which to respond by a submission of not more than 10 pages, which, again, over and above the 10 pages, may attach any further documents not otherwise in evidence upon which it relies.

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Decision last updated: 16 December 2016