[2011] FWA 4092

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FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment

Matthew Barber
v
Commonwealth of Australia as represented by the Department of Parliamentary Services
(U2009/1607)

COMMISSIONER THATCHER

SYDNEY, 6 JULY 2011

Termination of employment - arbitration - criminal proceedings - legal error in administrative decision making - Wednesbury unreasonableness

[1] Mr Matthew Colin Barber, formerly Parliamentary Security Service Officer, Parliamentary Security Service (PSS), Department of Parliamentary Services (DPS), Parliament House, Canberra, has elected to proceed to arbitration to determine whether the termination of his employment was harsh, unjust or unreasonable.

[2] Mr Barber’s employment of approximately 5 years was terminated on 16 January 2009 pursuant to s.29 of the Parliamentary Service Act 1999 (C’th) (the PS Act) on the grounds that he had breached the Parliamentary Service Code of Conduct (the Code), established under s.13 of the PS Act.

[3] The breaches related to 5 incidents on 1 August 2008 involving physical and verbal altercations at Parliament House with other employees of DPS. The 5 incidents are listed as subparagraphs A to E of paragraph 8 in the Record of Code of Conduct investigation referred to in paragraph 8 below. (For the sake of brevity, I will refer to the alleged incidents as Incident A, Incident B, etc.)

[4] The termination followed an external Code of Conduct investigation (CCI) by Mr Stone of the Centre for Public Management Pty Ltd and the acceptance by the Secretary of DPS of the findings of the investigation in Mr Stone’s Report dated 23 December 2008.

[5] Section 15 (Breaches of the Code of Conduct) of the PS Act relevantly provides:

[6] Thus a determination that a Parliamentary Service employee has breached the Code is a decision that may be made by any person properly authorised by the Secretary (s.15(3)), whereas a decision to impose a sanction for breach of the Code may only be made by a Secretary or a person delegated by the Secretary (s.15(1)). Powers of delegation are provided in s.70 of the PS Act.

[7] The practical effect in this case, was that Mr Stone, as an outsider, could be authorised to determine the breaches, but could not be delegated to impose a sanction and only made a recommendation on the sanction.

[8] The Record of Code of Conduct investigation1 which documented the reason for Mr Barber’s termination of employment included the following:

[9] Subsequent to the termination of his employment, Mr Barber was found guilty and convicted of two counts of common assault (of Mr Williams in respect of 2 of the incidents) and sentenced to be of good behaviour for 18 months. In accordance with ss.91-92 of the Evidence Act 1995 (C’th), whilst these convictions form part of the evidence that is relevant to these unfair dismissal proceedings, they do not necessarily prove the existence of all of the facts that were relevant in those criminal proceedings. That is, the convictions do not address facts such as the severity of the assaults or the circumstances leading up to the assaults. Nor do the provisions prevent contrary evidence being adduced about the facts sought to be proven by the convictions.3

[10] The respondent in these proceedings is the Commonwealth of Australia as represented by the Department of Parliamentary Services. In the interests of brevity I will refer to the respondent (Mr Barber’s employer) and the Department as DPS.

[11] In the course of preparing for the arbitration proceedings, Mr Barber made application to the Australian Industrial Relations Commission (the Commission) for various orders for the production of a significant number of documents from DPS and third parties and for the summons of witnesses. That application was the subject of my decision dated 16 November 2009.4 Mr Barber was provided with copies of all documents produced by DPS and Mr Stone, save for those that were the subject of legal privilege. In respect of one document (a petition),5 I ordered that the identity of the signatories be withheld.

SUBMISSIONS

[12] The bases of Mr Barber’s unfair dismissal application might be summarised broadly as:

[13] I have not attempted to summarise the grounds of Mr Barber’s disagreement with the Secretary’s reasons in paragraph 14 of the Record of Code of Conduct investigation because these proceedings are not an ‘appeal’ from the reasons given in support of the dismissal. These proceedings focus on whether the actual termination was harsh, unjust or unreasonable.

[14] DPS opposition to the application can be summarised as:

[15] Each of the parties referred me to various case law in support of their respective submissions. I have taken those cases into consideration to the extent I consider them relevant.

[16] These arbitration proceedings were longer than most unfair dismissal proceedings and involved sittings on 15 days over a period of approximately 7 months. The final submissions of Mr Barber (who was self-represented) totalled over 750 paragraphs; many with multiple subparagraphs. Excluding the case law provided by the parties, I finished up with over 30 lever arch folders of material to consider. I am confident that my delay in issuing this decision has not affected my capacity to properly and fairly determine the matter. My recollection of observations and my impressions of witnesses relevant to credibility issues6 have been assisted by the contemporaneous notes I made during the proceedings. CCTV footage was of assistance in relation to Incident A.

[17] This decision refers to a number of persons and, for ease of reference, I will list them in alphabetical order:

BACKGROUND

[18] In support of his application, Mr Barber refers to a history of events going back to late 2006. As these form part of a purported factual matrix7 that he submits is relevant to whether the termination of his employment was harsh, unjust or unreasonable, it is appropriate to refer to this background.

[19] Mr Barber commenced employment on 19 January 2004. For the duration of his employment he was a full-time PSS officer on Parliamentary Service level 1/2. He acted as PSS supervisor level 3 for periods between October 2004 and May 2007.

[20] Mr Barber assumed the following industrial representative roles during his employment:

[21] As an industrial representative Mr Barber participated in the following industrial negotiations:

[22] In addition to the Stone CCI, Mr Barber was the subject of two CCIs into actions taken by him primarily towards other employees in relation to industrial relations matters, namely the Arthur CCI and the Kamira CCI.

[23] The Arthur CCI resulted from an allegation that Mr Barber engaged in misconduct in making comments about Mr Lewis. The external investigation commenced in March 2007 and on 6 November 2007 Mr Arthur completed his report, finding that Mr Barber’s conduct on two occasions was in breach of the Code. On 6 December 2007 the then Secretary of DPS prepared a Record of Code of Conduct investigation and imposed a fine of $200 in relation to conduct on 2 November 2006 and a reprimand in relation to conduct on 12 January 2007.

[24] At the time of his termination Mr Barber had a request for a review under s.338 of the PS Act (s.33 review) of the findings of the Arthur CCI before the Parliamentary Service Merit Protection Commissioner.9 His termination caused the Commissioner to discontinue the review.10

[25] Shortly after the Arthur CCI was established, on 10 December 2007 Mr Barber sought a s.33 review of the performance management scheme (PMS) ratings given to him for several key performance indicators for the mid-year assessment for 2007/08. The independent review was undertaken by Mr Stoll. Mr Barber’s assertions included:

[26] The Stoll Report14 made 16 findings and 17 recommendations in relation to the DPS PMS, including 4 recommendations in relation to the assessment of Mr Barber. By the time Mr Barber responded to the recommendations on 25 June 2008,15 he was no longer either a union delegate or staff representative. The Executive Summary included:

[27] The Kamira CCI followed allegations that during January and February 2008 Mr Barber made intimidating and harassing comments to fellow employees, both verbally and in emails, in relation to the on-going UCA negotiations. Complaints were lodged by Messrs Williams, Wade, Colbert and Phillips. Also it was alleged that on 28 February 2008 Mr Barber issued a press release (Shame Mates Shame! - which included reference to the excessive working hours of some PSS staff) and gave a media interview to WIN News. His actions were in contravention of a PSS Daily Brief and despatches to all DPS personnel in 2005.

[28] Controversy surrounded Mr Barber ceasing to be an employee representative on the PSS WCC on 28 February 2008 because:

[29] Ms Griffith’s tabling of the petition, the reference in the draft minutes to Mr Barber and what he saw as the decision of management to dissolve the PSS WCC, became the subject of action by Mr Barber to lodge a request for a s.33 review dated 25 March 2008 and a complaint dated 28 April 2008 (refer to subparagraphs 34(a) and (e) below).

[30] Subsequently, notwithstanding his no longer having a formal industrial representative role, Mr Barber maintained an interest in industrial matters involving the PSS and undertook some form of advocacy role.

[31] However, before going to those matters, I will refer to an incident on 9 May 2007 that was raised by Mr Barber. The incident occurred after he had not attended for work on 8 and 9 May 2007. When Mr Barber could not be contacted, DPS arranged for officers from the AFP to attend his home. The police entered his home through an unlocked back door and established that he was present but unwell. Ms Griffith and Mr Petteit were in attendance but did not enter. DPS says it had a genuine concern for his welfare and had sought police assistance because, contrary to his practice he had not notified DPS he would not be working on those days and had not answered phone calls, responded to voicemail messages or answered the door. According to Mr Barber, Ms Griffith and Mr Petteit used ‘the AFP to break into my home despite not contacting next of kin or close friends to ascertain my whereabouts or condition and despite my phoning in sick only two days previously’ and that DPS acted ‘on spurious grounds in order to intimidate me.’23

[32] Returning to events after 28 February 2008, on 17 March 2008 Mr Barber wrote an 11 page letter to at least one Senator and one Member regarding the following concerns:

[33] The ballot count to elect 4 PSS WCC representatives was held on 11 April 2008. Messrs Colbert, Wade, Williams and another were elected.

[34] During March and April 2008 Mr Barber lodged with the Parliamentary Service Commissioner, who is not an employee of DPS and whose statutory functions are to give advice and provide reports to the Presiding Officers (i.e. the Speaker of the House of Representatives and the President of the Senate) pursuant to s.40 of the PS Act, the following formal complaints or requests for s.33 reviews:

[35] On 20 May 2008 Mr Barber wrote to Mr Thompson because the Parliamentary Service Merit Protection Commissioner had advised him that either the matters were not reviewable under the PS Act and Parliamentary Service Determination 2003/2 or should be lodged with the Secretary of DPS in the first instance.32 In one of the responses, the Commissioner advised Mr Barber:

[36] In addition to asking the Secretary to action those matters, Mr Barber submitted a formal complaint regarding the conduct of the PSS WCC election ballot count on 11 April 2008 during which Mr Colbert (as the AFPA representative) had witnessed the procedure even though he was a candidate.34

[37] Mr Thompson’s reply dated 16 June 2008 to Mr Barber both acknowledged his letter of 20 May 2008 and referred to his failure to participate in the Kamira CCI by having declined to meet with Ms Kamira or put forward a response to the allegations. The letter includes:

[38] On 17 July 2008 DPS released the final report for the Continuous Improvement Review (CIR) - Security,36 (the Security CIR report) which invited observations or suggestions from relevant staff. Mr Barber formed the view that the recommendations therein indicated that DPS intended to cut the number of PSS officers and their training.

[39] During the course of negotiations for the DPS UCA, in 2008 after Mr Barber was no longer a member of the WCC:

[40] The flyer did not disclose that Mr Barber was its author. As well as referring to the lost or diminished conditions (including changes to rosters, essential qualification and training targets for the night shift premium and the loss in value of certain allowances) the ‘anonymous’ flyer41 included the following adverse comments in relation to certain WCC representatives:

[41] The external CCI which was undertaken by Ms Kamira found that seven allegations were substantiated. The report dated 8 December 2008 included:

[42] The reason why the Kamira recommendations dated 8 December 2008 were not acted on prior to the Department’s consideration of the report of the Stone CCI dated 23 December 2008 was not explained. For someone in the position of Director, HR Services and who had been the project officer for the Kamira CCI and who must have given the Kamira CCI report to the Secretary,43 Ms Greening’s evidence that she had no knowledge of the reason, she had no conversation with the Secretary about the report and she had no knowledge if other executives had spoken to the Secretary about it,44 is disappointing. I make the general observation that Ms Greening’s evidence is not particularly helpful to these proceedings as her evidence is that she had little involvement in the decision to terminate Mr Barber’s employment or the decision-making process. Those involved seemed to be Mr Thompson, Mr Kenny and Mr Boyer, none of whom gave evidence.

[43] It seems that prior to the termination of his employment, Mr Barber was not made aware of the contents of the Kamira CCI report, including its recommendations. Ms Greening’s evidence is that she did not know why he had not been given a copy.45 On 5 February 2009 DPS advised Mr Barber that: ‘Given the receipt and acceptance of the Stone report, and the subsequent action regarding your employment, DPS now considers the Kamira investigation closed.’46 Even though she wrote the letter, under cross-examination Ms Greening could shed no light on the reason for this decision, stating that the matter had been discussed by Mr Boyer with the Secretary after she had gone on leave on 23 December 2008.47

[44] There is no evidence that any action was taken in respect of the 7 issues listed in Mr Barber’s letter dated 20 May 2008 (refer to paragraphs 34-36 above) up until the termination of his employment on 16 January 2009.48 There is no evidence that the Secretary had determined, under the provisions of the relevant Determination, that any were not reviewable matters. Ms Greening was cross-examined extensively on the reason for this inaction over such a lengthy period.49 However I was left little the wiser as according to Ms Greening:

EVIDENCE

[45] During the proceedings evidence was given by the following 19 persons:

[46] I have noted that certain witnesses in these proceedings had made complaints against Mr Barber which lead to the Kamira CCI (Messrs Petteit, Phillips, Wade and Williams) or were witnesses in respect of the Arthur CCI.63 Further, I have noted that in his letter to the Secretary dated 20 May 2008 Mr Barber had complained about certain witnesses (Messrs Petteit, Phillips, Wade and Williams).

[47] I have carefully reviewed all of the evidence and taken whatever evidence is relevant to s.652(3) and s.635 (refer to paragraphs 88 and 89 below) of the Workplace Relations Act 1996 (the Act) into consideration in arriving at my decision, giving such weight as is appropriate.64

[48] There is a common thread running through the evidence of everyone who observed Mr Barber during the approximately half hour when all of the 5 incidents occurred. He was described as: very verbal, emotional, red faced, confrontational, in an upset, agitated state, loud, aggressive, abusive, like a storm entering, animated, verbal, just yelling and waving and screaming, becoming more and more angry, enraged, snapped, violently pushing - amongst other similar descriptions. This appears to be at odds with Mr Barber’s purported detailed recall of the actions of himself and others during the incidents, down to the minutia, without areas of doubt or inconsistency. One example is his evidence about the precise time he put his water bottle down during Incident A.65 In my experience of considering the evidence of witnesses involved in physical confrontations or other highly emotional events, such a recall is far from the norm and, in the absence of contemporaneous notes, it is highly unlikely that Mr Barber would be able to recall accurately such detail, given he was displaying those emotions.

[49] Ms Greening’s notes of the meeting with Mr Barber shortly after the incidents records that Mr Barber stated that (in respect of Incident A) ‘RW had reached across him & ripped out of MB’s hands’. 66 Whilst Mr Barber cross-examined Ms Greening on this notation67 he did not dispute the accuracy of her contemporaneous note. Mr Barber’s evidence in these proceedings did not contain the assertion that Mr Williams ripped the flyers from his possession and the notation was not supported by the CCTV footage.

[50] It is highly probable that in giving his honest account of what he believes occurred on the day, Mr Barber has, possibly unconsciously, reconstructed the events in order to justify his actions. For this reason, I prefer the evidence of what occurred by witnesses who displayed less emotion on the day and who gave more probable evidence.

INCIDENTS ON 1 AUGUST

[51] I will discuss each of the incidents in the course of making my findings on whether there was a valid reason for the termination that related to Mr Barber’s conduct in the incidents.

[52] In respect of Incident A, in addition to the evidence of the witnesses (Ms Martin and Messrs Barber, Cochran, Cook, Webster and Williams) I have the benefit of clear CCTV footage68 of what occurred, from two different angles. Despite Mr Barber’s submissions,69 there is insufficient evidence to draw an inference that the footage is not reliable.70 Indeed the footage of each angle appears continuous. Whilst there were some differences between the CCTV footage and the evidence of witnesses, that is not inconsistent with my experience of witnesses giving inaccurate evidence thinking it to be true. In these proceedings, where there is an inconsistency between the evidence of a witness and clear CCTV footage, I have preferred the evidence in the CCTV footage.

[53] Following his involvement in two of the incidents, at 2.30 pm Mr Williams presented at the Nurses Centre. The incident report that was completed by Ms Irvine includes the following:

FOLLOWING THE INCIDENTS

[54] After the last of the incidents (Incident E), Mr Barber was requested to wait in Mr Wallace’s office. Whilst he was waiting, at a meeting between Mr Thompson, Mr Crane, Mr Kenny, and Ms Greening, Mr Thompson requested Mr Crane to advise Mr Barber that he was to be suspended. According to Ms Greening the decision was because there had been physical altercations in the main front marshalling area and outside Mr Petteit’s office.

[55] After that meeting Mr Crane, Ms Greening and Mr Petteit viewed the CCTV footage.72 Subsequently, the three met with Mr Barber to inform him that he was suspended pending an investigation and of Mr Boyd’s direction that he leave the Parliamentary precinct immediately.73 The meeting was not to ask Mr Barber if he wanted to put anything to the Secretary before the decision was made to suspend him.74 Mr Barber was escorted from the premises by an acting PSS supervisor and an AFP uniform protection inspector. Mr Williams met with Mr Thompson who did not want to discuss the incidents but wanted to know how he was. 75

[56] The Secretary’s letter of suspension dated 1 August 2008 to Mr Barber76 stated:

[57] Although not directly relevant to these proceedings I might record that at some time Mr Williams, in a private capacity, telephoned the AFP. When the AFP officers, in their capacity as ACT Policing, arrived at Parliament House, Mr Williams had a meeting with them before taking them to a meeting with Messrs Boyd and Petteit and himself. 77 On Sunday 3 August 2008 Mr Williams made a formal statement to the police, becoming the complainant in the criminal proceedings. The charges laid were prosecuted by the ACT Office of Public Prosecutions. Although not a complainant, DPS cooperated with the Police investigation by enabling investigating AFP officers to enter the precincts, and providing the AFP with DPS incident reports and a copy of the CCTV footage. DPS provided the AFP with Mr Barber’s contact details in accordance with the Information Privacy Principles.78 DPS says it provided this assistance ‘as a responsible citizen’.79

[58] On 8 August 2008, DPS advised Mr Lamond of the Centre for Public Management Pty Ltd (CPM) that it had accepted CPM’s offer to undertake a CCI in respect of an allegation that Mr Barber assaulted Mr Williams on 1 August 2008.80 The letter of engagement stated that the specified personnel who must undertake the work were Mr Lamond and Mr Stone. Annexure 1 of the contract for services included:

[59] Also on 8 August 2008, DPS advised Mr Barber of the investigation into that allegation,81 that the Secretary had nominated Mr Stone to undertake the investigation and that Mr Stone was to be provided with copies of the following documents:

[60] On 18 August 2008, Mr Crane and Ms Greening briefed Messrs Lamond and Stone on the background of the CCI and DPS procedures. Thereafter Mr Crane had no further involvement in the CCI. Ms Greening, as the DPS project officer, 84 had ‘very, very little to do with Mr Lamond’85 and maintained regular contact with Mr Stone on process issues and regularly updated Mr Thompson.

[61] On 18 August 2008 Mr Barber wrote to the Secretary, DPS in respect of a number of matters, including his formal objection to the allegation of assault, and stated that:

[62] The Secretary’s response dated 3 September 2008 included:

[63] In a letter to Mr Barber dated 21 August 2008, DPS clarified that his suspension from the workplace also related to the parliamentary precincts. Further, the department wished to bring to Mr Barber’s attention that the direction not to attend the work premises (including the precincts of Parliament House) was a lawful and reasonable direction.88 In a further letter to Mr Barber dated 23 February 2009, DPS stated:

[64] On 22 August 2008 Mr Stone invited Mr Barber to meet with him to discuss the manner in which Mr Stone proposed to progress the investigation.90

[65] Mr Barber met with Mr Stone on 4 September 2008. During the meeting Mr Stone read from a document that outlined the process that the CCI would follow and explained that it was only the Secretary who could suspend or terminate the CCI.91 Mr Barber gave Mr Stone his letter of that date which outlined matters that needed addressing in order ‘to ensure the integrity of any investigation that may ensure’, including his assertion that Mr Stone was not a competent or appropriate person to determine if he had assaulted Mr Williams.92 Mr Stone forwarded Mr Barber’s letter to Ms Greening. Mr Stone made notes of the meeting which he did not provide to Mr Barber.

[66] On 23 September 2008 Mr Barber lodged a complaint with the Workplace Authority about the conduct of DPS, AFPA and the PSS employee representatives during the PSS UCA negotiations and the approval process.93

[67] On 13 October 2008 Mr Stone wrote to Mr Barber. His letter included the following:

[68] Mr Barber’s response dated 14 October 2008 sought all relevant evidence, including the CCTV footage. Also he sought an extension of the period for his response to 13 January 2009 for the following reasons:

[69] Mr Stone’s response dated 5 November 2008 included:

[70] Mr Barber’s reply dated 7 November 2008, objected to not being provided with a copy of the CCTV footage (he asserted that the decision was ultra vires and denied him natural justice) and to Mr Stone’s removal of information which Mr Stone considered not to be relevant or insignificant. Further, Mr Barber stated:

[71] Mr Stone’s response dated 13 November 2008 provided Mr Barber and his legal representatives with an opportunity to view the CCTV footage other than in the presence of Mr Stone, clarified the limited information that Mr Stone had considered not to be relevant or significant in the material previously provided and stated:

[72] Mr Barber’s response dated 18 November 2008 addressed why he did not believe that justification existed to continue the CCI whilst the criminal matter was proceeding. His correspondence included:

[73] Also in his letter dated 18 November 2008, Mr Barber advised Mr Stone that he was to obtain a copy of the CCTV footage in the criminal proceedings. He sought that, given an anticipated timetable of the criminal proceedings, ‘the period provided for me to respond be provisionally extended to 30 June 2009, or until such time as the court has disposed of the matter.’100

[74] On 25 November 2008 Mr Barber lodged a complaint with the Workplace Ombudsman in respect of alleged breaches of freedom of association provisions.

[75] On 26 November 2008 Mr Barber’s legal representative wrote to Mr Stone seeking that Mr Barber’s response to the CCI await the outcome of the criminal proceedings on the basis that:

[76] In his response dated 3 December 2008 Mr Stone stated:

[77] As well as the above correspondence between Mr Barber and DPS and Mr Barber and Mr Stone, on 22 August 2008 Mr Barber wrote letters headed ‘Suppression of free speech and industrial democracy in Parliament House’ to the Presiding Officers, Senators and Members103 in which he referred to the events of 1 August 2008 and a range of issues regarding negotiations for the DPS UCA. On 12 September 2008 the Secretary wrote to the Presiding Officers advising each of the Stone CCI and that the Department of Education, Employment and Workplace Relations had advised DPS that the draft UCA was consistent with the government’s bargaining framework and recommending they ignore the correspondence.104

[78] On 1 September 2008 Mr Barber wrote letters to the Presiding Officers headed ‘Clarification re barring from the Parliamentary precincts’.105 On 15 December 2008 Mr Barber wrote further letters to the Presiding Officers headed ‘Most Urgent and Confidential - Request to direct DPS to stay Code of Conduct investigation in line with PS Act and procedural fairness’.106 Similar letters dated 15 December 2008 were sent to all Members and Senators.107

[79] Neither DPS nor Mr Stone deferred the Stone CCI until the completion of the criminal proceedings. The Record of Code of Conduct investigation which documented the reason for Mr Barber’s termination of employment included the following:

[80] In a letter to Mr Barber dated 10 December 2008 Mr Stone provided Mr Barber with his determinations regarding the allegations. He attached a draft of his report which contained the details of his findings (that Mr Barber had breached the Code) and the sanction he proposed to recommend to the Secretary of DPS (the sanction of termination). Mr Barber was invited to comment, by 19 December 2009, on the findings and the recommended sanction before the report was finalised and submitted.108

[81] In his response dated 18 December 2008,109 Mr Barber advised Mr Stone that he intended to wait for the criminal process and an investigation by the Workplace Ombudsman to be concluded before providing a response. He submitted that action by DPS to proceed could lead to a serious miscarriage of justice. He also expressed the view that the nature of the draft report indicated that Mr Stone ‘will not consider any points raised in any response (by Mr Barber) to the degree that they can influence you to change your findings and recommended sanction.’ He continued:

[82] On 22 December 2008 Ms Greening met with Mr Stone who took her through the report without discussing the substance of how he arrived at the findings and recommended sanction. 111 According to Ms Greening she had not received any indication regarding what his findings and recommendations were likely to be112 although she had regular contact with Mr Stone during the CCI - ‘Generally telephone calls where he’d be telling me where he was up to with respect to the process.’113

[83] The next day Mr Stone signed the CCI report to Mr Thompson, which was received on 24 December 2008. On 23 December 2008 (the day she finished to go on leave) Ms Greening arranged with DPS’ legal representative for Mr Thompson to phone him on 7 January 2009 because the Secretary was seeking reassurance that he could continue the CCI process while the criminal matter was still on foot. 114

[84] In a letter dated 14 January 2009,115 Mr Kenny (as Acting Secretary) informed Mr Barber that his employment would be terminated with effect from the close of business on 16 January 2009. It attached the Secretary’s Record of Code of Conduct investigation and the Stone CCI final report. These were hand delivered by courier to Mr Barber on the morning of 16 January 2009.

[85] In relation to Mr Barber’s submission dated 18 December 2008 that action by DPS to proceed before the Workplace Ombudsman undertook an investigation could lead to a serious miscarriage of justice, the Record of Code of Conduct investigation included the following:

RELEVANT LEGISLATION

[86] Subsection 643(1) of the Act relevantly includes:

[87] In Byrne v Australian Airlines Limited the High Court explained these grounds as follows:

[88] FWA is required to have regard to a number of matters specified in s.652(3) of the Act. That subsection provides:

[89] It is also relevant to consider s.635(2) of the Act which provides that the procedures and remedies concerning the conciliation and arbitration of claims, as well as the manner of deciding on and working out remedies:

[90] It is now well established that each of the paragraphs in s.652(3) must be considered in determining an application in so far as it has application or is relevant to the circumstances of the case and that a valid reason for the termination is only one of the specified matters.

[91] In King v Freshmore (Vic) Pty Ltd 118 the Commission indicated its task was not to review the employer’s decision as to what conduct occurred but to determine itself, on the evidence, whether the conduct occurred. The Full Bench stated:

[92] Although King v Freshmore (Vic) Pty Ltd was in relation to s.170CG of the Industrial Relations Act 1998 the principle continued under the different unfair dismissal structure in the Act - see the decision of the Full Bench in Xiu Zhen Huang v Rheem Australia Pty Ltd.119

[93] An allegation of misconduct involving what might be regarded an assault by an employee is a serious matter that attracts the operation of the principle in Briginshaw v Briginshaw.120 The standard of proof remains the balance of probabilities but ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’121 and such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’122 or ‘by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.’123

[94] In Re: R Budd124 a Full Bench, in considering an unfair dismissal application indicated that the Briginshaw principle applies to the finding of fact and not to the discretion as to whether a dismissal is harsh, unjust or unreasonable. The Full Bench stated:

JURISDICTIONAL ERROR, INVALIDITY AND BREACHES OF LAW

[95] Before proceeding to have regard to the matters specified in s.652(3) it is appropriate that I consider FWA’s role in arbitrating unfair dismissal applications in relation to Mr Barber’s submissions that:

[96] Instances of jurisdictional error that Mr Barber submits vitiated his termination are:

[97] It needs to be borne in mind that ‘Wednesbury unreasonableness’ is not a common law principle that applies across all areas of law, similar to procedural fairness. Rather it is a ground for judicial review of an administrative decision. Therefore I will interpret Mr Barber’s submissions that certain decisions were ‘Wednesbury unreasonable’ to mean that, if the decisions were the subject of an application for a judicial review, the application would succeed on the ground of Wednesbury unreasonableness.

[98] Mr Barber’s submissions go to the legality of his termination, rather than whether the decision to terminate his employment was harsh, unjust or unreasonable, which is more about the merits of the dismissal. That is, they relate to errors of law, rather than to errors of fact. (Whilst Wednesbury unreasonableness requires a consideration of the merit of a decision, its effect is to have the decision quashed or set aside. I will discuss this ground further when giving consideration to paragraph 652(3)(c).)

[99] Of course it is not a function of FWA (whose powers and functions are limited by statute) to review the legality of an administrative decision. That is a function of a judicial review which is primarily concerned with the manner in which decisions are made, not their substance or effect. In respect of the Secretary’s decisions, a judicial review could be initiated under:

[100] Mr Barber explains what he is seeking as follows:

[101] It appears from the above that Mr Barber is seeking FWA, in effect, to stand in the shoes of a court that is considering a judicial review of the Secretary’s decisions to proceed with the CCI and to terminate his employment and arrive at conclusions that there are errors of law which constitute jurisdictional error that invalidate the decisions. In so doing, I should rely on my findings of invalidity to determine his termination harsh, unjust or unreasonable.

[102] In effect, Mr Barber is seeking that FWA undertake part of a de facto judicial review, i.e., to assess the validity of the Secretary’s decision to terminate his employment by reviewing whether:

[103] I say a ‘part’ judicial review, because Mr Barber is not seeking an opinion of the remedy that the court would determine, which could involve setting aside all or part of the decision or referring the matter back to the decision maker. (In a judicial review a court must always maintain its distinction from a merit review and cannot exercise any discretion of the decision maker.)

[104] Errors of law include matters such as whether:

[105] The term ‘jurisdictional error’ takes its content from the particular terms of the conferral of authority on the decision maker in question. 128 It is not clear why Mr Barber seeks to assert that all of the purported errors of law are jurisdictional errors. Perhaps this is because a finding of jurisdictional error can invalidate the relevant decision, i.e., the decision concerned lacks legal foundation and is properly regarded in law as no decision at all. However even if an error of law has been committed a distinction may be made between jurisdictional errors and non-jurisdictional errors, which is notoriously difficult.129 It may be that his ‘reason’ is that the ADJR Act does not require that distinction, which is not the case with certain Constitutionally-protected judicial reviews.130

[106] Where the error of law involves the infringement of legislative requirements, a degree of complexity is involved in determining the issue of invalidity. In Project Blue Sky Inc v Australian Broadcasting Authority131 the High Court indicated that the correct test for determining the issue of validity where some statutory provision has been infringed is to ask whether it was a purpose of the legislation that an act done in breach of that provision should be invalid. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute.’132

[107] Consideration of whether a jurisdictional error in decision making means the decision is invalid raises a further complexity as consideration of whether administrative decisions are invalid involves a difficult legal issue. There are two conflicting views of invalidity and in Minister for Immigration and Cultural Affairs v Bhardwaj,133 (Bhardwaj) Kirby J noted that the debate about invalidity of administrative decisions ‘presents one of the most vexing puzzles of public law. Principle seems to pull one way. Practicalities seem to pull in the opposite direction.’134

[108] A publication by the Australian Government Solicitor summarises the two conflicting views on invalidity as follows:

[109] In Bhardwaj, the findings of the majority of the High Court (Kirby J dissenting) went in favour of the absolute invalidity approach. Gaudron and Gummow JJ stated:

[110] A partial de facto judicial review is far different to FWA’s role in considering whether a dismissal for misconduct is harsh, unjust or unreasonable, which involves:

[111] I am not prepared to do as Mr Barber seeks. I will refrain from forming an opinion whether errors in the Stone CCI or decisions by the Secretary involve jurisdictional error or Wednesbury unreasonableness and have invalidated his termination. My reasons include the following:

[112] In addition to referring to the purported jurisdictional errors, Mr Barber relies on instances where either DPS had not followed procedures ‘to the letter’139 or he was denied procedural fairness.

[113] It is appropriate in unfair dismissal proceedings to consider whether there has been compliance with the relevant law. Generally, this involves whether the applicant was terminated for reasons that included an unlawful reason and whether the termination was in accordance with provisions of the relevant industrial instrument. In this instance, consideration also needs to be given to whether the termination was in accordance with the requirements of the law relating to Mr Barber’s employment under the PS Act and associated instruments.

[114] Whilst alleged breaches of the law might be determined in other jurisdictions for other purposes, this does not preclude FWA from forming an opinion on the question of non-compliance for the purpose of determining the justness or otherwise of the dismissal. In considering instances of non-compliance, it is the practice of FWA to ‘form an opinion’ on matters that can only be judicially determined as a stepping-stone towards the arbitration.140

[115] As stated by the Full Court of the Federal Court in its consideration of unfair dismissal proceedings in Miller v University of New South Wales:

[116] Similarly, in considering unfair dismissal applications FWA will form opinions on whether the disciplinary process that resulted in the dismissal denied the employee procedural fairness (or breached the rules of natural justice).

[117] Thus, opinions on non-compliance with prescribed requirements and procedural fairness are questions of law (even though they obviously depend on factual findings) - not whether actions are reasonable notwithstanding shortcomings.

[118] In respect of whether a process is procedurally fair, the following comments of Lord Diplock in Bushell v Environment Secretary, 142 are apposite:

[119] Having formed those opinions it is the role of FWA to take them into account in considering the fairness of the dismissal. However opinions that there has been non-compliance with prescribed requirements or procedural fairness does not necessarily mean that the termination was harsh, unjust or unreasonable. In arbitrating on whether the dismissal was unfair the provisions of the Act must be the considerations:

[120] Thus there is no ‘automatic’ consequence of a finding of failures to comply with prescribed requirements or procedural fairness such that FWA must determine that the dismissal was harsh, unjust or unreasonable, as Mr Barber submits should apply where the non-compliance with a prescribed requirement warrants a finding of invalidity or a breach of procedural fairness is ‘significant’. 146

[121] In unfair dismissal proceedings, instances of failures to comply with prescribed requirements or procedural fairness in the disciplinary process may be sufficiently relevant for them to be taken into account for the purposes of paragraphs 652(3)(b),(c) and (d), although an instance may extend beyond those paragraphs and also be a relevant factor under paragraph 652(3)(g).

[122] Further, it is unlikely that FWA would find under paragraph 652(3)(a) that a valid reason for a dismissal includes a reason that is unlawful. Also, whether the reason for a dismissal was for an unlawful reason or a dismissal was otherwise not allowed by law are matters that may be relevant under paragraph 652(3)(g).147

[123] In these proceedings, in giving weight to instances of failures to comply with prescribed requirements or procedural fairness which are sufficiently relevant, I will take into consideration that DPS is a statutory authority of some consequence and size which should adopt high standards in the termination process.

S.652(3)(a) - WAS THERE A VALID REASON FOR THE TERMINATION?

[124] There is a general acceptance that the often quoted words of Northrop J in Selvachandran v Peteron Plastics Pty Ltd equally apply to paragraph 652(3)(a):

[125] Mr Barber submits that DPS did not have a valid reason for terminating his employment for the following reasons:

[126] I will separately consider each of Incidents A to E.

[127] However, before doing so I will consider whether the evidence supports Mr Barber’s submission that DPS’s workplace has an entrenched culture of swearing and that swearing is prevalent.149

[128] The evidence on which I rely is as follows:

[129] On the evidence I find that swearing was a commonly accepted occurrence by certain employees during the course of conversations in the workplace. A greater tolerance of swearing was given to swearing between male officers and in the meals area. Swearing in the presence of members of the public was not tolerated. Incidents involving an employee abusing another employee with the use of extreme swear words was neither common nor sanctioned. I will consider the use of swearing in Incidents A to E in this context.

[130] In relation to Incidents A and C the considerations associated with physical confrontations in the workplace are well summarised by the Full Bench in Tenix Defence Systems Pty Ltd v Fearnley.165 These include the consideration of the nature of the ‘assault’, the degree of provocation and whether there is an element of self defence, the employer’s need to establish and maintain discipline and the circumstances of the employee concerned. Issues associated with the safety and welfare of employees must form part of the consideration. Another consideration is whether the environment within which an incident took place was such as to aggravate the seriousness of the conduct.

Incident A

[131] By way of background, from Sunday 27 July 2008 onwards, 166 Mr Barber had been distributing the flyers to places where the department normally disseminated work material. On the morning of Friday 1 August 2008 Mr Barber continued to distribute the information flyers to manned security points, including the main front security screening area, without incident. Mr Williams (who considered the information to be rubbish and stated ‘it refers to me on the bottom of it and the author didn’t have the guts to put their name on it’167) had destroyed some, including those in the main front marshalling area. Sometime that morning Mr Williams had raised his concerns about the flyers with Mr Petteit and asked him to do something. Mr Petteit said he would handle it. Also, Mr Williams spoke to Mr Wallace (at the main front) who advised that he would seek clarification of whether the positioning of the flyers was permitted. Mr Wallace, in turn, spoke to Mr Petteit. Mr Petteit made arrangements for Mr Barber to meet with Mr Wallace in Mr Wallace’s office at 2.30 pm. Around 1.30 pm Mr Barber was advised to attend the meeting, but not the reason for it.168 Around 2.10 pm the first of the 5 incidents occurred.

[132] The incident involved an altercation between Mr Barber and Mr Williams in the main front marshalling area. Mr Williams, Ms Martin and Messrs Cochran, Cook, and Webster were stationed in the area when Mr Barber entered with copies of his flyer. During part of the incident a member of the public passed through the area in sight and earshot of the altercation. The incident occurred as a consequence of Mr Barber placing copies of his flyer on the Perspex cover over the conveyor belt that carried material after it had gone through the security screening. The copies he had placed on the cover earlier on the day were no longer there.

[133] From an examination of the CCTV footage, my findings in respect of the incident can be made in two parts, namely:

[134] In relation to how the incident was initiated, Mr Cook’s evidence is that the first words were from Mr Barber who said ‘that he was putting the leaflets there for us to read as the others had been taken.’ 169 That generally accorded with Mr Williams evidence that when Mr Barber entered the room he said words to the effect: ‘I think you people need more of these.’170

[135] Ms Martin’s evidence is that as Mr Barber laid down the flyers he said to Mr Williams words to the effect: ‘You’re the reason I’m not allowed to distribute these.’ Further, she heard Mr Williams insinuate that the material belonged in the bin.171 This response accorded with Mr Cook’s evidence that: ‘Rhys replied with the comment he knew where they would go.’172 Mr Webster’s evidence is that Mr Williams words: ‘They will go with the rest of them’ had followed Mr Barber saying to Mr Williams: ‘These are to stay here I hope you understand that?’173

[136] I adopt Ms Martin’s evidence that after Mr Williams referred to the material belonging in the bin:

[137] I agree with the majority of the submissions of DPS that, from the evidence, Mr Barber directed inappropriate and offensive language at Mr Williams throughout the incident. I adopt:

[138] Mr Barber submits that his language was not out of the ordinary for the workplace. No witness gave evidence that the words used by Mr Barber, and the manner in which he used them in this incident were regarded as being acceptable in the workplace.

[139] Considering that the wording of the flyer could reasonably be expected to be found offensive to him,187 it was provocative action on the part of Mr Barber to choose:

[140] I adopt the evidence of Ms Martin, who was best placed to observe the physical contact, who described such contact as follows:

[141] From the CCTV footage and the other evidence I find that in relation to the physical altercation:

[142] As the physical contact occurred before the intervention of Ms Martin, Mr Barber’s violent push cannot somehow be excused by his ‘acting to protect Ms Martin from what he perceived to be harassment from Mr Williams.’ (Ms Martin’s evidence is that she did not feel intimidated during the incident.192)

[143] Whilst Mr Barber may consider that he was acting to defend the information flyers, any such intention does not justify his violent and abusive conduct.

[144] Although Mr Williams contributed to the incident, Mr Barber’s conduct was grossly disproportionate to Mr Williams actions. I do not accept that Mr Williams willingly provoked Mr Barber to the degree that he elicited the response. Mr Williams gave no indication that he might make physical contact with Mr Barber.

[145] The seriousness of Mr Barber’s conduct is aggravated by the environment within which the incident took place, namely the main front security screening area, which is accessed by the public.

Incident B

[146] The second incident occurred when, immediately following Incident A, Mr Barber went directly to Mr Petteit’s office. Mr Barber entered Mr Petteit’s office and, whilst remaining standing, in an upset and agitated state yelled at a seated Mr Petteit. Mr Barber’s initial outburst was about the department’s loss of information he had provided which was preventing his security clearance proceeding, before he launched into a verbal attack about management.193 Whilst this was occurring Mr Williams arrived at the office and stood at the only doorway194 (behind Mr Barber) and listened for a while before interrupting.

[147] Mr Petteit presented as someone who is thorough and professional. His evidence is credible. I adopt the following evidence of Mr Petteit that:

[148] Mr Williams presented as a thoughtful witness who answered questions honestly and to the best of his recollection. Whilst there were details he could not recall because of the effluxion of time, his recollection of the details/minutia appeared to indicate some degree of shock. He gave measured answers. I accept Mr Williams’ evidence that Mr Barber was ‘animated, verbal, just yelling and waving and screaming’.201

[149] Mr Barber concedes that the events in Mr Petteit’s office prior to the arrival of Mr Williams are uncontested.202 I do not accept Mr Barber’s submission that his behaviour was not of itself unreasonable, given the previous incident and the history of his security clearance application pack. 203 Further, I do not accept Mr Barber’s general submission that his language was not out of the ordinary for the workplace. Clearly Mr Petteit was of the opinion that the words used by Mr Barber, and the manner in which he used them, to someone who occupied his position was regarded as unacceptable in the workplace.

Incident C

[150] This incident commenced when Mr Barber became aware of Mr Williams presence in the doorway after Mr Williams interrupted the ‘meeting’ by suggesting to Mr Petteit that he may want to look at the CCTV footage of an incident that had happened at the main front. Mr Barber pushed Mr Williams backwards out of the way into the corridor. The nature of the push and what then occurred are in dispute.

[151] According to Mr Barber:

[152] According to Mr Petteit’s evidence:

(b) Mr Barber pushed Mr Williams backwards using 2 open palms against Mr Williams’ chest. In one motion Mr Barber walked out of the office pushing Mr Williams. ‘It was a push that continued.’ Mr Williams slowly retreated backwards in a manner trying to defend himself.208

(d) Whilst Mr Williams had his hands raised up in front of him in protective mode Mr Barber punched Mr Williams with a clenched fist.211

(e) He saw the punch connect with Mr Williams’ shoulder, very close to Mr Williams’ chin.212

(f) He was certain that, with the punch, Mr Barber’s whole fist was clenched and not just the fingers. 213

(g) He saw Mr Barber kick Mr Williams in a roundhouse manner, with the kick landing above Mr Williams’ left knee.214

[153] Mr Williams’ evidence is that:

[154] Mr McDowall’s evidence was not impressive. At times he presented as somewhat hostile and ‘smart’. I was left wondering how Mr McDowall was able to give some of his evidence about Mr Barber’s actions when Mr Williams’ back was towards him as Mr McDowall came a considerable distance down the corridor. Mr McDowall gave evidence that having heard raised voices which elevated to yelling point, he came out of his office, entering the corridor at about 30 feet from Mr Barber and Mr Williams who were in the corridor. He had just commenced to approach them (and had gone not more than 2 feet223) as Mr Barber struck Mr Williams. As he was approaching them Mr Petteit came out of his office. Mr McDowall’s evidence is that:

[155] After considering all of the evidence I find that:

[156] Mr Barber submits that, given the earlier incident, Mr Williams’ action of remaining in close proximity to him was deliberately provocative. I accept that it was imprudent for Mr Williams to choose to interrupt Mr Barber’s meeting with Mr Petteit. However it could not reasonably be said that by the interruption and his standing in the doorway Mr Williams provoked the physical response from Mr Barber.

[157] Objectively speaking, there was no reason for Mr Barber to think he had been ‘falsely imprisoned’ or that Mr Williams had the capability of imprisoning him, either in Mr Petteit’s office or in the corridor (even if the end of the corridor that went around the corner behind him was a dead end236). In making that finding, I decline to form any opinion in relation to the tort of false imprisonment, which is not a necessary step for these proceedings. Mr Barber should have given Mr Williams an adequate chance to stand aside, especially given the presence of Mr Petteit. Clearly Mr Barber did not take the time to satisfactorily assess any perceived threat.

[158] Even if subjectively Mr Barber felt ‘imprisoned’, there was no reason for him to ‘free myself’ 237 in that manner. I totally reject Mr Barber’s submission that, in the circumstances, the push and a defensive palm strike and a defensive leg strike, when executed with due care and diligence, were all appropriate, even if they were in accordance with the force continuum and Tactical Options Protocol.238 In the circumstances, the use of physical force on a fellow colleague was totally inappropriate and unnecessary. It was not proportionate to the situation. I do not accept that Mr Barber had cause to act in self-defence.

[159] The point is not whether the only way Mr Williams could have been struck by Mr Barber’s blows was to allow himself to become too close to Mr Barber. It is that Mr Barber was wrong to have delivered the blows.

[160] I do not accept Mr Barber’s attempt to justify his misconduct to FWA by suggesting that DPS breached a mutual duty of trust and confidence by failing to stop his false imprisonment and by failing to ensure he was able to safely leave Mr Petteit’s office.

[161] In arriving at my findings I have taken into account the following factors raised by Mr Barber:

[162] Within a space of 30 seconds,239 Mr Boyd, who reported to Mr Petteit (and who did not give evidence), came down the corridor from the same direction as Mr McDowall. After the incident, Mr Williams was asked to go to Mr Boyd’s office nearby and Mr Barber was asked to go downstairs and wait for his 2.30 pm meeting in Mr Wallace’s office. There was no suggestion that Mr Barber did not respond well to Mr Petteit’s direction after he intervened.240 Mr Petteit agreed that, in hindsight, Mr Barber should have been escorted.241

Incident D

[163] This incident occurred around 2.20 pm in the internet cafe area when Mr Phillips and Mr Silvano were sitting at computers and Mr Colbert was nearby talking to another employee. Others were in the area, including female staff members. Initially Mr Barber directed his language to Mr Colbert and then directed his language to Mr Phillips. Mr Lewis came down the corridor and intervened. Mr Wade then arrived and was involved. Mr Barber then sat at a computer and had a ‘conversation’ with Mr Phillips until Mr Barber left the area.

[164] Mr Phillips’ evidence is that Mr Barber ‘without provocation ... launched into a tirade against myself and Martin Colbert, and also Bob Wade about our handling of the Certified Agreement and how we, in his opinion, had been a party in reducing the conditions of service of PSS members during the current certified agreement negotiations.’ He stated that Mr Barber ‘used extremely aggressive language in addressing me in front of a number of PSS members including female staff members’,242 although he could not recall exactly the language as he had tuned-out and was ignoring what Mr Barber was saying.243 Mr Barber’s conduct was out of the ordinary even for that part of the workplace.244 Mr Phillips agreed that Mr Barber’s comments about Mr Phillips quitting his country of birth followed his comment to Mr Barber that he was ‘a quitter’ (having been an Acting PSS Supervisor, worked in the PSOR, been on the Security Continuous Improvement Review group and been a union delegate and PSS WCC employee representative). That exchange had occurred during their private conversation after Mr Barber had been told to quieten down.245 Mr Phillips was not an impressive witness. He failed to understand the full significance of answering evidence under oath and I gained the impression that he tailored his evidence for the proceedings.

[165] Mr Wade’s evidence is that Mr Barber was talking with a ‘raised and aggressive voice’ and said to him ‘there’s (sic) another one of the fucken cunts who sold us out’ - which accorded with Mr Barber’s evidence that he said: ‘And here’s another one who fucking sold us out in a cunt of an act!’246 He expressed the opinion that from the hatred he could see in Mr Barber’s eyes he was highly emotional and very upset to the point that he could inflict physical harm if Mr Wade remained in the area.247

[166] Mr Silvano, who was an observer and did not participate in the incident, gave evidence that Mr Barber stood over the top of Mr Phillips while he was sitting down, and yelled abuse at him, pointing at him with his finger.248 Mr Barber was abusive right from the moment he walked into that area and Mr Phillips was doing his best to stay calm and just have a calm discussion with Mr Barber.249 He stated that Mr Barber ‘called Buff a lying cunt and said to Buff that he also sold out his country of origin Zimbabwe and claimed that Buff fucked blacks up the arse.’250 Mr Barber called Mr Colbert ‘a fat lying cunt’.251 Mr Silvano presented as a credible witness who was open and honest and presented forthright answers.

[167] In Mr McDowall’s opinion, if Mr Barber had used the words in Mr Silvano’s evidence, on the basis that swearing can be on a scale of 1 to 10 and that the sanction could involve counselling, he would rate the language used as ‘probably up there with departmental charges against the code of conduct.’252

[168] Mr Lewis’ evidence is that after hearing loud voices, he walked down the corridor and saw Mr Barber standing about half a metre directly behind a seated Mr Phillips ‘shouting in an aggressive loud voice and using filthy language directed at’ Mr Phillips.253 He recalled Mr Barber telling Mr Phillips he had sold out his country and referred to him as a ‘fucking cunt’. Mr Barber made racially derogatory remarks of a sexual nature. Although he could not recall the exact words used254 ‘there was certainly a reference to black people and the country’255 and Mr Barber used words very similar to ‘fat lying cunt’.256 Mr Lewis described this language as ‘extreme’ and beyond the culture of swearing that he perceived existed in some of the private areas of the PSS because it was abusive swearing that was directed at someone.257 Mr Lewis presented as an honest and reliable witness who gave solid evidence.

[169] There was no evidence that Mr Colbert, who was not called to give evidence, had complained about the language directed at him.

[170] Mr Barber concedes that he swore at Messrs Colbert, Phillips and Mr Wade, using words that included ‘fuck’, ‘fucked’, ‘fucking’ and ‘cunt’.258 According to him, he had told Mr Phillips that ‘... he did not fight for his own country, Zimbabwe, which was now “fucked” and said that he was part of the regime that “fucked” the blacks ...’259 Mr Barber submits that it was not unsurprising that he said something to Mr Wade ‘in the state I was in’. 260

[171] In the absence of evidence from Mr Phillips of any actual words used by Mr Barber, there is sufficient evidence for me to find that at the internet cafe, in a loud and aggressive manner Mr Barber used inappropriate and offensive language in the presence of several staff members of PSS.

Incident E

[172] Shortly after at around 2.30 pm, on the way to his nearby meeting with Mr Wallace, Mr Barber passed Mr Silvano (who had previously witnessed Mr Barber’s conduct at the internet cafe) who was moving a large fridge out of the tearoom immediately opposite Mr Wallace’s office. As they passed in the corridor Mr Barber said something to Mr Silvano. The two men stood only a metre or so apart exchanging words in raised voices. Mr Barber was standing just inside Mr Wallace’s office when Mr Wallace closed the door to prevent any further conversation. After the door was closed, the two continued to yell at each other using foul language for approximately another 30 seconds or so through the closed door, notwithstanding Mr Barber was in a room with Mr Wallace.261

[173] A number of witnesses who heard or observed the exchange gave evidence regarding Mr Barber’s conduct during this incident.

[174] Mr Silvano gave evidence that Mr Barber initially said something to him and, when he asked Mr Barber ‘what did you say to me’, Mr Barber said ‘I hope the fucking fridge falls on top of you.’262 The ‘conversation’ turned to a previous CCI involving Mr Lewis in which Mr Barber claimed Mr Silvano sold him out and towards the end Mr Silvano called Mr Barber a ‘gutless cowardly bastard’.263 Mr Silvano conceded that he had ‘let loose with abusive language towards Matt’. When asked by Mr Barber whether the language Mr Silvano had used was as bad as the language Mr Barber had used towards him, Mr Silvano did not deny the proposition and stated: ‘I would say you were the aggressor. I was minding my own business. I didn’t interfere with what went on in that cafe. You were the aggressor, and I got sick and tired of you bullying people, bullying me, and I stood up for myself and I gave it back how you gave it to me.’264

[175] Mr Mayne (now retired) gave honest and truthful evidence and a credible account of what occurred. He stated that the words that Mr Barber initially said to Mr Silvano were: ‘I hope it falls on you Silvano.’265 The comment was loud enough for everyone in the vicinity to hear266 and was made with some venom.267 During the ‘verbal battle ... with tempers increasing rapidly,’268 they were ‘face to face across the fridge’.269 ‘Matthew was trying to get to Tony and A/MSO Wallace was trying to restrain him.’270 He would not agree that Mr Silvano was under no threat or danger from Mr Barber271and believed that only the refrigerator between the two men stopped a physical encounter.272 He did not remember the exact words but ‘there was a lot of very foul language, which included ‘f’ and ‘c’ words, between the two men and it was increasing in tempo.’273 He described Mr Silvano’s response as ‘very quick and harsh’274 and as ‘retaliatory action’.275 He would not accept that Mr Silvano’s reaction was out of all proportion to what Mr Barber did as he believed most people would react to being spoken to the way Mr Barber had spoken to Mr Silvano.276 Although there is a culture of swearing in the workplace among certain PSS officers, the language used during the incident:

[176] Mr Wallace gave evidence that it was another officer who had initially said words to the effect of ‘careful it doesn’t fall on you’ followed by Mr Barber saying words to the effect: ‘It’s alright so long as it ... falls on Silvano.’278 His evidence is that Mr Silvano had ‘asked Officer Barber what he had said and called him a gutless ... and to say whatever he had said to his face.’279 During a heated exchange of profanities Mr Barber and Mr Silvano ‘swore at each other using four-letter words’.280 Although Mr Wallace described the incident as ‘not acceptable within the workplace,281 he was aware that the language used by Mr Barber in the incident was used by some PSS officers when they are in the PSS north basement area (although others may tell them to curb their language) and staff would be under the impression that they could use that language in his presence in the meal room.282

[177] Mr Lewis gave evidence that Mr Barber directed a verbal attack on Mr Silvano saying words to the effect that he hoped the refrigerator would fall on him and that, following this, an exchange of words took place between the two and both Mr Silvano and Mr Barber were swearing and shouting obscenities at each other.283

[178] Mr Barber conceded that he repeatedly swore at Mr Silvano, including telling him to ‘fuck off’ and ‘fuck off cunt’.284 Mr Barber admits he was already aggrieved after the earlier events, particularly with Mr Williams and ‘this affected my judgement in the matter with Mr Silvano.’ 285

[179] Although Mr Silvano contributed to the incident, ‘two wrongs don’t make a right’. I do not accept that Mr Silvano provoked Mr Barber to the degree that it could be said he elicited Mr Barber’s conduct.

[180] Whilst Mr Barber was intent on provoking Mr Silvano and the exchange that followed involved the use of inappropriate and offensive language which is not regarded as acceptable in the workplace, Mr Barber and Mr Silvano could have been under the impression they could use the language in Mr Wallace’s presence.

Incidents A to E

[181] The issue is not whether the reason of the employer for the termination of an employee is valid. Rather the issue is whether there was a valid reason for the termination.286 I am to consider whether there was a valid reason for the purposes of paragraph 652(3)(a) and in that respect I am not restricted to reviewing Mr Stone’s findings or the Secretary’s reasons for his decision to terminate Mr Barber’s employment as contained in the Record of Code of Conduct investigation.

[182] Based on my findings, I consider that the conduct of Mr Barber on 1 August 2008 to which I have referred does constitute a valid reason for the termination of his employment.

[183] Whilst the language used by Mr Barber during Incident D and to a greater extent Incident E, may have been insufficient, of itself, to be a valid reason for the termination of his employment (in the absence of a prior warning), the fact that the language was used in such an abusive and offensive manner and that it formed part of the chain of aggressive behaviour that Mr Barber maintained over the period of time in various settings and locations does lead me to find that his conduct in those incidents forms part of the valid reason for the termination of his employment.

[184] The valid reason relates to Mr Barber’s personal conduct in the workplace and not that he was seeking to agitate for improved working conditions. 287 His advocacy activities in the workplace did not excuse him from the requirement to observe appropriate provisions of the Code and the normal civilities that are expected across the community. Whilst the following extract from a decision of the NSW Industrial Commission in Re Dispute at Broken Hill Pty Co Ltd Steel Works Newcastle (No 2)288 refers to a union delegate (and at the time Mr Barber had no representative role) it is none the less apposite:

[185] Having found that the conduct engaged in by Mr Barber constitutes a valid reason for the termination of his employment for the purposes of paragraph 652(3)(a), there is no need to specify the standards of conduct that are particularised in the Parliamentary Service Code of Conduct.289 It is sufficient to note that his conduct breached the Code and that a breach of the Code is a lawful ground for imposing the sanction of termination of employment.

[186] Mr Barber’s submission that at the time he genuinely believed that what he did was justified and appropriate is a factor I will consider under paragraph 652(3)(g).

S.652(3)(b) – WHETHER THE EMPLOYEE WAS NOTIFIED OF THAT REASON?

[187] The reference in paragraph 652(3)(b) to ‘that reason’ is a reference to the valid reason for the employee’s termination.290 The reason must be given prior to the decision to terminate.291

[188] Mr Barber does not contest that DPS notified him of that reason.

S.652(3)(c): WHETHER THE EMPLOYEE WAS GIVEN AN OPPORTUNITY TO RESPOND TO ANY REASON RELATED TO THE CAPACITY OR CONDUCT OF THE EMPLOYEE

[189] Paragraph 652(3)(c) provides that FWA must have regard to whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee. The opportunity to respond refers to an opportunity that is provided before a decision is taken to terminate the employee’s employment.292 The ‘any reason’ refers to the valid reason for the employee’s termination.293

[190] In cases where an employee’s conduct is involved, this opportunity serves two purposes. Firstly, it gives the employee the opportunity to demonstrate that the allegations have no foundation. Secondly, it gives the employee the opportunity to persuade the employer that, while the allegations are of substance, there are factors that should persuade the employer not to terminate the employment. Those factors may be extenuating personal circumstances or they may involve undertakings about future conduct.294 The following comments of Moore J (when considering s.170DC of the Industrial Relations Act 1998) are relevant to the second purpose:

[191] After a preliminary investigation, on 13 October 2008 Mr Stone advised Mr Barber of suspected breaches of the Code which related to the five separate incidents on 1 August 2008. Mr Barber was given opportunity to provide an oral and/or written statement in relation to the incidents and suspected breaches.

[192] This provided Mr Barber with the opportunity to respond to the alleged conduct and the possible breaches of the Code in relation to conduct that is within the valid reason I have found.

[193] On 10 December 2008 Mr Stone provided Mr Barber with his findings and his draft report which included the sanction he proposed to recommend.

[194] This provided Mr Barber with the opportunity to comment on the recommended sanction before it was submitted to the Secretary.

[195] Mr Barber submissions that he was not given reasonable opportunity to respond appear to be that:

Failure to defer proceedings

Criminal proceedings - Lawfulness of proceeding

[196] Mr Barber submits that the failure by DPS and Mr Stone to defer the investigation until the completion of the criminal proceedings undermined his ‘right to silence’. He was entitled to protection from the prejudice involved and relied on his construction of the purported Commissioner’s Directions and certain case law to support that view.

[197] In respect of possible breaches of prescribed requirements, s.15(3) of the PS Act provides that a Secretary must establish procedures for determining whether a Parliamentary Service employee has breached the Code. The procedures must:

[198] Parliamentary Service Commissioner’s Direction 2000/1 (Basic requirements for procedures for determining breaches of the Code of Conduct)296 states that before any determination is made in relation to a suspected breach of the Code, the employee must be given reasonable opportunity to make a statement in relation to the suspected breach. The Direction makes no mention of concurrent criminal proceedings.

[199] There was agreement between the parties that the procedures established under s.15(3) are contained in HR paper No 6. There is no explicit provision in HR paper No 6 that required Mr Stone or the Secretary to defer the CCI until the finalisation of the related criminal proceedings.

[200] Paragraph 26 of HR paper No 6 states that the paper should be read in conjunction with the Parliamentary Service Values and Code of Conduct and the Guidelines. The Guidelines make it clear that they are not a formal procedure. After referring to formal procedures that have been issued for managing breaches of the Code, the Guidelines state that they are for the information and guidance of all Parliamentary Service employees.297 Under the heading ‘Considerations in deciding cases’ the Guidelines include:

[201] There is no provision in the PS Act, any Parliamentary Service Commissioner’s Direction, any Parliamentary Service Determination or any formal procedural requirement that obliged the Secretary to defer the CCI or his decision to terminate Mr Barber’s employment until the finalisation of the criminal proceedings, even though there was a ‘substantial correlation between (certain) facts being taken into account in the CCI and the criminal process.’ 298

[202] In respect of the common law, Mr Barber cites Sullivan v Secretary, Department of Defence 299 as ‘the way in which the respondent should have managed the applicant’s matter.’300 However that case does not support any ‘right to silence’. It was a decision on whether costs should be awarded after an exchange of undertakings by the parties.

[203] Mr Barber relies heavily on Reid v Howard, 301 that contains a strong statement of the right to silence and the privilege against self-incrimination, which extend not only to the risk of incrimination by direct evidence, but also by indirect or ‘derivative’ evidence (evidence obtained by using the disclosed material as a basis of investigation). However the decision did not address the means of dealing with any purported conflict between actual or pending criminal proceedings and either civil proceedings or an administrative process. It was a case where a chartered accountant, having admitted to police that he had used client’s money for his own purposes was, in respect of civil proceedings initiated by his clients, resisting the making of interlocutory orders for the disclosure of his assets by claiming privilege against self-incrimination. The High Court decided against orders for the disclosure on the basis that the material could be made directly available to the prosecution authorities. The case is distinguishable from the current proceedings because it dealt with the compulsory process of discovery in the course of civil proceedings. The High Court did not decide whether the civil proceedings should be stayed or postponed.

[204] In Reid v Howard Deane CJ endorsed points made by the High Court in Sorby v The Commonwealth. 302 However that case centred on the extent that provisions of the Royal Commission legislation abrogated the common law rule of privilege against self-incrimination, in circumstances where a witness can be compelled to answer questions. One point was that undertakings that the information that is obtained will not be used in criminal proceedings do not provide adequate protection because they do not cover the indirect use of the information, i.e., it may lead to the discovery of real evidence of an incriminating character.303 A similar point was that under the common law the privilege protects a witness from incriminating himself directly or indirectly.304 In the current proceedings there is no suggestion that legislation abrogates the common law rule of privilege against self incrimination. Mr Barber was not being compelled to disclose anything to the CCI. In Sorby v The Commonwealth the High Court did not decide whether the Royal Commission should be stayed or postponed.

[205] In civil proceedings a person has no ‘right to silence’. Whether civil proceedings are adjourned pending the finalisation of criminal proceedings involves the exercise of a discretion. The principles set out in McMahon v Gould305 have often been applied in various jurisdictions when applications are made for such adjournments. Indeed there have been several decisions of the Commission where it refused to adjourn unfair dismissal applications pending the finalisation of criminal proceedings.306

[206] In Goreng Goreng v Jennaway307 (Goreng), Flick J considered the operation of the concept of a ‘right to silence’ upon an administrative decision-making process in relation to an officer of the Australian Public Service. His Honour stated:

[207] In the current proceedings, there is no equivalent regulation to the one that applied in Goreng.

[208] Mr Barber’s submits that it is contrary to the principles of procedural fairness to have made him engage in the CCI where any answers or response he may have given to the investigation may have been used in the criminal proceedings (where he had a right to silence). Paragraph 15(3)(a) of the PS Act provides that the Secretary’s procedures must have due regard to procedural fairness.

[209] In respect of a similar submission in Goreng (although there was no equivalent of paragraph 15(3)(a)), Flick J stated:

[210] Mr Barber is wrong to refer to the CCI and the criminal proceedings as ‘cognate proceedings’. 308 To my mind the proceedings were too dissimilar to be encompassed by the expression.

[211] There was no lawful requirement for Mr Barber’s opportunity to respond to the CCI to be deferred pending the finalisation of the criminal proceedings. The Secretary exercised a discretion. It was not unlawful for him to exercise a discretion.

Criminal proceedings - Reasonableness of proceeding

[212] I have already alluded to Wednesbury unreasonableness being a ground of judicial review. I have indicated that I do not propose to examine, as would a judicial review, the legality of the administrative decision to terminate Mr Barber’s employment. However, in the event that I was required to undertake such an examination in respect of the ground of Wednesbury unreasonableness, for the sake of completeness, I will proceed to consider whether the decision not to defer the CCI investigation until after the criminal proceedings and the Workplace Ombudsman’s investigation were completed was unreasonable to the relevant degree.

[213] Associated Provincial Picture Houses Ltd v Wednesbury Corporation309 (Wednesbury) was a case involving a decision to deny access to a movie theatre to youngsters on a Sunday, presumably to preserve their moral health. In refusing to interfere with the decision, Lord Greene MR noted that there was considerable overlap between many of the grounds of review that fell within the rubric of ‘unreasonableness’. In the course of his decision, his Lordship said:

[214] The third limb in the test became known as Wednesbury unreasonableness. It is important to emphasise Lord Greene’s words ‘something so absurd that no sensible person could ever dream that it lay within the power of the authority.’ He added further:

[215] In a subsequent House of Lords decision, in Council of Civil Service Unions v Minister for the Civil Service, 312 Lord Diplock described Wednesbury unreasonableness as irrationality (as distinct from illegality, procedural impropriety and proportionality). His Lordship stated:

[216] Perhaps not unsurprisingly, there are few reported cases of a decision being declared invalid on the basis of Wednesbury unreasonableness. 313

[217] In Griffiths v Rose,314 Perram J pondered whether the termination of employment of an officer of a Commonwealth department under s.15(1) of the Public Service Act 1999 (by a Mr Pettifer) for a breach of the Australian Public Service Code of Conduct solely on the basis of his viewing of lawful pornography out of hours in his own home and using his own internet connection would have transgressed the Wednesbury unreasonableness standard. His Honour stated:

[218] Mr Barber acknowledges that if the CCI had been deferred until the finalisation of the criminal proceedings (which, according to Mr Barber, was not dealt with to finality until 2 June 2009), hypothetically he may have been dismissed in ‘late 2009’. 315

[219] None of the reasons advanced by Mr Barber satisfy me that the decision of Mr Stone to proceed with the CCI and to finalise his recommendation and the Secretary’s decision to terminate Mr Barber’s employment without waiting for the outcomes of the criminal proceedings and an investigation by the Workplace Ombudsman transcended the Wednesbury unreasonableness threshold. The decisions made were not the result of irrational or illogical reasoning and were not outrageously unreasonable. In forming this opinion it is not necessary for me to decide whether I endorse how the Secretary exercised his discretion.

[220] In considering whether for the purposes of paragraph 652(3)(c) the decision to proceed with the Stone CCI and not to defer the investigation until after the criminal proceedings were finalised Mr Barber had reasonable opportunity to respond to the allegations, I will be guided by the McMahon v Gould principles (to which I have previously referred), considering the line of authorities which have adopted (in whole or part) the factors therein. Those principles summarise the factors which a court may take into account in the exercise of its discretion to stay civil proceedings, namely:

[221] In considering the McMahon v Gould principles I have noted the obiter of Gyles J in Baker v Commissioner of the Australian Federal Police 316 (referred to in Goreng) which was an application for a judicial review of a decision of the AFP to invite employees to respond to allegations that each may have committed serious misconduct amounting to disciplinary offences for which their employment might be terminated. The employees were to respond by 22 August 2000. The criminal charges (to which each had pleaded not guilty) were to be heard on 30 October 2000. In the course of finding that the use of the statutory provisions that enabled the termination of employment for serious misconduct over-rode the employees rights against self-incrimination had not been made out, his Honour stated:

[222] Further, in considering the McMahon v Gould principles I have considered various cases involving applications for the stay of civil proceedings during the pendency of criminal proceedings, including Commonwealth Bank of Australia v Christian Orlando May 317 and Elliott v Australian Prudential Regulation Authority.318 I have not given significant weight to Oakley v Department of Employment and Workplace Relations319 in which the Full Bench, in the course of finding that the termination of employment was harsh, unjust or unreasonable, expressed the view that in delaying the APS Code of Conduct investigation until after the allegation had been investigated by the DEWR Fraud Investigation Team and the DPP had agreed there was very little risk of prejudicing the outcome of the criminal prosecution, DEWR had acted appropriately and reasonably. Further I have not given significant weight to Cassaniti v Tax Agent’s Board of New South Wales,320 taking into account that it did not address the McMahon v Gould line of authorities, was considered in the context of whether the Board’s investigation could be in contempt of the Local Court and assessed whether there would be a real risk of interference with the administration of justice in the light of the extensive secrecy provisions in the relevant statute.

[223] Generally speaking, the case law supports the view that whether a party to civil litigation, who is facing criminal proceedings in relation to the same subject matter, should be granted a stay or an adjournment depends upon the necessity to ensure that the ordinary procedures of the court do not cause injustice to a party to that litigation. The court must balance the prejudice claimed by the defendant to be created by the continuation of the litigation against the interference which would be caused to the plaintiff’s right to have his claim heard without delay in the ordinary course of the court’s business.

[224] Three matters of prejudice tend to be the focus of proceedings, namely the premature disclosure of the defendant’s case in the criminal prosecution; the possibility of interference with the defendant’s witnesses prior to the trial of that prosecution; and the effect of publicity given to the civil litigation upon jurors in the criminal trial. A general proposition that a miscarriage of justice would arise from ‘the requirement that a defendant defend civil proceedings until he knows the full case against him in the criminal proceedings and has had opportunity to consider his position’ has been held to be not of sufficient substance. 321

[225] Paragraph 652(3)(c) requires consideration of the circumstances up to the time of Mr Barber’s termination. During that period Mr Barber’s correspondence contained the following, which fell short of an explicit request that the CCI be deferred until the finalisation of the criminal proceedings.

[226] It was not until 15 December 2008 when Mr Barber wrote to the Presiding Officers that Mr Barber explicitly referred to his request that DPS stay the CCI until the criminal process had been completed (refer to paragraph 78 above). In such correspondence Mr Barber asserted a denial of procedural fairness.

[227] I make the points that:

[228] In respect of my consideration of paragraph 652(3)(c), Mr Barber’s submissions and evidence failed to address why there was a real and not merely notional danger of prejudice or injustice in the criminal process.322 The only matter of substance to which Mr Barber alluded was his apprehension that witnesses could have changed their evidence in the later criminal proceedings if they had known his defence in the disciplinary proceedings. Given the nature of the allegations, such an apprehension seems unjustified, given that by 13 October 2008, when he was given the opportunity to respond to the alleged breaches of the Code, the witnesses that were to be common to both proceedings had already given the following:

[229] In my opinion Mr Barber has not shown a sufficient case in these proceedings to warrant my finding that a deferral of the Stone CCI or the decision to terminate his employment until the completion of the criminal proceedings was justified or the decisions to proceed were unreasonable.

[230] In respect of the Workplace Ombudsman’s investigation, Mr Barber’s complaint was lodged on 25 November 2008, at the ‘eleventh hour’. From the evidence323 the allegations relate primarily to matters that were the subject of the Kamira CCI. I can find nothing that refers to the allegations that were the subject of the Stone CCI or would affect the opportunity to which paragraph 652(3)(c) refers.

Conclusion

[231] Mr Barber’s submissions fall considerably short of convincing me that the decisions to proceed with the CCI and with the termination of his employment prior to the finalisation of the criminal proceedings and his complaint to the Workplace Ombudsman are factors that negate or go against my finding that the criteria in paragraph 652(3)(c) (i.e., that Mr Barber was given an opportunity to respond to the valid reason) was fulfilled.

Failure to provide material

[232] Mr Barber submits that he was denied procedural fairness in the CCI as:

[233] It appears that Mr Barber considers that he should have had ‘an equal opportunity to prepare my case against those allegations as what Mr Stone had in conducting his investigation.’ 324 There is no authority that supports a general rule that in disciplinary investigations procedural fairness requires the employee under investigation to be given access to all of the material available to the investigator. Rather, what material procedural fairness requires be made available depends upon the circumstances of the particular case, including what information is appropriate to enable the employee to have adequate opportunity to respond to the allegations.

[234] Mr Barber submits that Comcare v Eames, 325 is authority for procedural fairness requiring DPS to provide him with all material that was available to Mr Stone.326 It is no such authority. The case involves an appeal from an Administrative Appeals Tribunal decision in respect of a workers’ compensation claim. It is authority for the position that in many cases it is enough to give the burden of the allegations without the supporting evidence. But in disciplinary cases it is often the nuances of surrounding circumstances that can affect the outcome. The decision in that case was heavily influenced by the fact that the investigator had promised the employee under investigation certain material and there were no special circumstances that warranted an alternative view.

Access to CCTV footage

[235] There was much evidence about who had the authority to enable Mr Barber to have access to the CCTV footage of Incident A - whether it was the Presiding Officers or DPS. It is not necessary for me to determine the matter.

[236] The nub of Mr Barber’s submission is that he was treated unfairly by not being given a copy of the CCTV footage. The restriction relating to his access to viewing the footage was unfair, given that Mr Stone and the AFP each had been given a copy of the footage for the purposes of their respective investigations.

[237] It was appropriate for Mr Barber to provide a statement to Mr Stone in respect of Incident A before Mr Barber had studied the CCTV footage. This would have ensured that his recollections and the opinions he formed were based on the incident and not on the CCTV footage and that the footage did not influence his version of the probability of a fact.

[238] From 5 November 2008 Mr Barber had the opportunity to sight the CCTV footage. He had until 19 November 2008 to provide his response to the suspected breaches.327 There was still ample time to respond to the allegations.

[239] On 18 November 2008 Mr Barber advised Mr Stone that he was to obtain a copy of the CCTV footage in the criminal proceedings. Mr Barber did not explain why, having done so, he did not sight the footage until 5 March 2009 if, in fact, that was the case. 328

[240] Mr Barber had opportunity to give his account of events without the CCTV footage. After Mr Barber had the opportunity to sight the CCTV footage, he refused to submit to an interview with Mr Stone. Thus, at the end of the day, the failure to provide Mr Barber access to the CCTV footage earlier was of no practical effect in the investigation as Mr Barber had no intention of providing Mr Stone with a statement prior to the finalisation of the criminal proceedings.

[241] The delay in providing Mr Barber with a copy of the CCTV footage did not result in Mr Barber being denied procedural fairness such that paragraph 652(3)(c) is not satisfied.

Absence of record of the meeting with Mr Barber

[242] Mr Stone’s report states that in his consideration of an appropriate sanction to recommend, he took into account ‘Mr Barber’s lack of recognition that his actions and language directed at his colleagues were in any way appropriate; and, the lack of remorse shown by Mr Barber in all of my contact with him over the matter.’

[243] This wording was contained in Mr Stone’s draft report dated 13 December 2008 on which Mr Barber had the opportunity to respond. He had the opportunity to contradict anything in the draft recommendation. Mr Barber did respond and gave reasons why he disagreed with Mr Stone’s statement. In doing so he also stated: ‘it is not the intention of this correspondence to cover matters raised in your draft report.’329

[244] Mr Barber disagrees with the basis of Mr Stone’s formation of that opinion, and Mr Barber may well be correct, as I am troubled that Mr Stone had formed this opinion without interviewing Mr Barber on the substance of the allegations and had not included that opinion in his record of their meeting on 4 September 2008 on process issues. However that is not the point, which is that Mr Barber was given adequate opportunity to contradict the statement.

Failure to digitally record interviews

[245] This ground is a consequence of Mr Stone’s decision not to digitally record his interviews of all of the witnesses. Following each discussion Mr Stone documented a summary of the matters he would take into account in arriving at his findings and had the individual sign the summary as a correct account.

[246] On 5 November 2008, Mr Stone provided Mr Barber with a copy of all of the written summaries.

[247] This is not a case of Mr Stone deciding to withhold certain information. Mr Stone could not have provided Mr Barber with a digital record of his interviews with all of the witnesses because no such record was made, save for one witness (Mr Williams).

[248] All of this was of no practical effect in the investigation as Mr Barber had no intention of providing Mr Stone with a statement prior to the finalisation of the criminal proceedings.

[249] The circumstances did not result in Mr Barber being denied procedural fairness such as to prevent paragraph 652(3)(c) from being satisfied.

Predetermination of Outcomes

[250] In part, Mr Barber’s assertion that outcomes had been predetermined was based on his view that he had been singled out for attention in prior actions and that the incidents on 1 August 2008 were convenient for DPS to use to terminate his employment.330

Predetermination of CCI findings

[251] Mr Barber holds the view that the Secretary had predetermined his guilt because he was not interviewed about the incidents prior to being suspended. He states:

[252] On the evidence, for reasons that include the following, I cannot find that DPS predetermined the findings of the Stone CCI:

Predetermination of sanction

[253] On the evidence, after having regard to the following considerations, I cannot find that DPS predetermined the sanction of termination:

[254] Having said that, I am perturbed that on 25 November 2008, just over a fortnight before Mr Stone provided Mr Barber with his draft report which contained his recommended sanction and well before the final report was presented to the Secretary, Ms Greening discussed with Mr Stone the time frames associated with Mr Barber making an application to the Commission. 339 The discussion was inappropriate (considering Mr Stone’s role) and suggestive of Ms Greening anticipating a likely decision to terminate Mr Barber’s employment.

Mr Barber’s response would have no influence

[255] The assertion that, in effect, nothing that would have been contained in Mr Barber’s response to the draft CCI report would have influenced Mr Stone to alter his findings or recommendation involves a hypothetical issue.

[256] In relation to Mr Stone’s findings, Mr Barber appears to misunderstand the purpose of the contents of Mr Stone’s draft report, thinking that it provided him with further opportunity to provide evidence that would persuade Mr Stone to change his findings. That was not the case. Mr Barber had opportunity from 13 October 2008 to 19 November 2008 to influence Mr Stone’s findings in respect of the suspected breaches of the Code. That was when he had opportunity to persuade Mr Stone that the allegations were without substance.

[257] Although Mr Stone’s letter of 10 December 2008 could perhaps have been clearer, one of the purposes of providing Mr Barber with the draft report was to invite Mr Barber to make comment of the findings - not to reopen the ‘inquisitorial’ phase of the investigation. The other purpose was to invite him to influence the recommended sanction. It was Mr Barber’s opportunity to persuade Mr Stone that there were sound reasons why Mr Stone should alter his draft recommendation that Mr Barber’s employment be terminated.

[258] Mr Barber did not clarify why he submits that the draft report demonstrated that Mr Stone had no intention of considering any response from him. From Mr Barber’s letter to Mr Stone dated 18 December 2008 it seems that a contributing factor was the abovementioned misunderstanding. Perhaps another factor was that, whilst Mr Barber’s response included why Mr Stone should not have concluded that in all of his contact with Mr Barber he had shown a lack of remorse, Mr Stone did not amended his view in the final report.

[259] I am not satisfied that the structure of Part 4 (Proposed Sanctions), which was less than two pages in length, in the draft report would, on an objective analysis, indicate to Mr Barber that Mr Stone was not open to consideration of a response in which Mr Barber presented reasons why Mr Stone should alter his draft recommendation that Mr Barber’s employment be terminated.

Conclusion

[260] For the purposes of paragraph 652(3)(c) Mr Barber had the opportunity to respond to the allegations (that fall within the valid reason) before Mr Stone determined the breaches of the Code.

[261] Whilst Mr Stone provided Mr Barber with the opportunity to comment of the sanction that he proposed to recommend to the Secretary, Mr Stone did not have authority to impose the appropriate sanction. It was only the Secretary (or his delegate) who had that statutory authority. Mr Barber was not given opportunity by the Secretary to persuade him that, given the breaches of the Code that had been determined, there were factors against terminating his employment, such as extenuating personal circumstances or undertakings about future conduct.

S.652(3)(d): IF THE TERMINATION RELATED TO UNSATISFACTORY PERFORMANCE BY THE EMPLOYEE—WHETHER THE EMPLOYEE HAD BEEN WARNED ABOUT THAT UNSATISFACTORY PERFORMANCE BEFORE THE TERMINATION

[262] Mr Barber’s work and work ethic and capacity were not questioned. The dismissal related only to the conduct that constituted breaches of the Code. This consideration is not relevant to these proceedings.340

S.652(3)(e): THE DEGREE TO WHICH THE SIZE OF THE EMPLOYER’S UNDERTAKING, ESTABLISHMENT OR SERVICE WOULD BE LIKELY TO IMPACT ON THE PROCEDURES FOLLOWED IN EFFECTING THE TERMINATION

[263] DPS did not suggest that it could rely upon its size as a justification for any defects in the procedures followed in effecting the termination of Mr Barber’s employment.

S.652(3)(f): THE DEGREE TO WHICH THE ABSENCE OF DEDICATED HUMAN RESOURCE MANAGEMENT SPECIALISTS OR EXPERTISE IN THE UNDERTAKING, ESTABLISHMENT OR SERVICE WOULD BE LIKELY TO IMPACT ON THE PROCEDURES FOLLOWED IN EFFECTING THE TERMINATION

[264] DPS did not seek to rely upon the absence of dedicated human resource management personnel as a justification for any defects in the procedures followed in effecting the termination of Mr Barber’s employment.

S.652(3)(g): ANY OTHER MATTERS THAT FWA CONSIDERS RELEVANT

[265] I am required to have regard to any other matters I consider relevant.

[266] Mr Barber has been convicted on two counts of common assault for his misconduct.

[267] Any harsh effect on the individual employee is a relevant consideration.341 Mr Barber is a single man in his early forties and has been engaged in the security industry for most of the past 15 years. He has yet to obtain employment and has undertaken very limited self-employment. There is no evidence that Mr Barber has any disability.

[268] Whilst Mr Barber’s prospects of obtaining employment in the security industry are not good, his convictions are a significant reason for his predicament. Another is his inability to drive.

[269] Mr Barber did not occupy a supervisory position.342

[270] The position of PSS officer at our national parliament requires occupants to have a demonstrated ability to manage stressful situations appropriately. The work could include responding to potential security incidents with an appropriate use of force. Mr Barber’s conduct occurred notwithstanding the training he received from DPS in relation to managing visitors to the precincts.

[271] Mr Barber concedes that there was no evidence that prior to these proceedings he had expressed contrition or remorse for his actions.343

[272] Mr Barber states that he accepts that the Magistrates Court found he had assaulted Mr Williams on 2 occasions during the course of the relevant incidents. Mr Barber admits that, with the benefit of hindsight, his ‘actions in response to the provocation were stupid, ungainly, unsavoury and embarrassing’ and, further, that he ‘should have taken a different course of action to the one I did.’344

[273] Mr Barber fails to accept responsibility for provoking any of the 5 incidents. Further, he submits that: ‘... I used reasonable force. I used no more force than what I needed to use in those individual instances ...’ 345

[274] In considering whether the sanction imposed on Mr Barber has resulted in differential treatment between employees, I have been guided by the following case law, which although applicable to earlier legislation is nonetheless relevant:

[275] The circumstances of Messrs Williams and Silvano were not the focus of these proceedings and, although Mr Barber asserts that ‘no action at all’ 349 was taken in respect of their involvement in the incidents, the evidence did not make it clear what disciplinary action (if any) was taken against either.350 Clearly any contribution they made to the incidents could not be regarded as comparable to the degree of Mr Barber’s overall misconduct. I have noted Mr Petteit’s general preference for not initiating disciplinary action by means of a CCI and Mr Barber’s assertion that since July 2006 no other employee of PSS has been dismissed for misconduct. I am not satisfied that DPS has imposed a lesser sanction than dismissal on other employees who have been involved in incidents of similar gravity.

[276] I have considered Mr Barber’s extensive submissions on other matters. To the extent I consider them a relevant matter, I have taken them into consideration, giving such weighting as I consider appropriate. In so doing, I have taken into account DPS’ failure to call as witnesses persons who were directly involved in the decision to terminate Mr Barber’s employment, namely Messrs Thompson, Kenny and Boyer. Some of Mr Barber’s assertions required the drawing of an inference in an evidentiary sense.351 I make comment on several of the issues, but refrain from making findings on peripheral issues.

[277] Whilst Mr Barber considers that in his investigation Mr Stone failed to ask certain relevant questions or ignored evidence that was favourable to him,352 the fact that the investigation was undertaken without Mr Barber’s contribution would have limited the issues that Mr Barber may have liked considered. There was no necessity to digitally record all interviews with witnesses. The CCI was not about why Mr Williams had destroyed Mr Barber’s flyers, which were not the property of DPS.353 In the absence of inconsistent evidence from persons who had given statements, there was no reason for Mr Stone to interview all of the estimated 10 persons who were present at the internet cafe. 354 Mr Barber had been invited by Mr Stone to identify individuals who he would like Mr Stone to interview. Mr Barber was accorded adequate procedural fairness in the investigation. Whilst Mr Stone did not include all of the points in Mr Barber’s letter dated 18 December 2008 in his final report, Mr Barber’s letter had stated ‘it is not the intention of this correspondence to cover matters raised in your draft report.’ (The final report that was tended in these proceedings,355 included Mr Barber’s correspondence as an attachment to the draft report - which seems impossible). A comparison of the report and the evidence in these proceedings does not support any bias on the part of Mr Stone. In any event if there were shortcoming in Mr Stone’s investigation and report, the question of whether or not his findings were justified becomes somewhat academic as in these proceedings Mr Barber has had opportunity to put a case in answer to the allegations against him.

[278] As to the reasonableness of the Secretary’s decision, it was based upon the findings of the independent CCI that Mr Barber had breached the Code in several respects. The reasons for the breaches were serious. The decision was not made in haste. The Record of Code of Conduct investigation indicates that the Secretary gave earnest consideration to the decision to terminate Mr Barber’s services. The Record shows that the Secretary was aware of Mr Barber’s concerns about procedural fairness, including his requested deferral of the CCI until the criminal proceedings and an investigation of his complaint to the Workplace Ombudsman had been completed. The Secretary was aware from Mr Stone’s report that Mr Barber had chosen not to participate in the CCI process until those proceedings and an anticipated investigation were finalised. The Record shows that the Secretary did not take account of Mr Stone’s view that Mr Barber had not shown contrition and that in arriving at his decision the Secretary considered the significant consequences of the decision on Mr Barber. It is unlikely that the Secretary failed to take account of Mr Barber’s work history.

[279] The Secretary’s decision to terminate Mr Barber’s employment was, in the circumstances, a reasonable and reasoned decision. It could not be said that a reasonable person would not have made the same decision based on the same information. It follows from what I have said that the decision to terminate Mr Barber’s employment was not, as Mr Barber submits, made capriciously.

[280] Whilst Mr Barber may feel as though the real reason for his termination was his industrial activism, the valid reason I have found for his termination is for his serious misconduct. There is nothing in the evidence that would enable the inference to be drawn that DPS dismissed him for reasons that included his being a member of the CPSU who was campaigning for better working conditions. The reasons for his termination did not include his distribution of the flyers or for making the assertions therein. Mr Barber must face the fact that the termination of his employment was because of his aggressive and abusive conduct that was not justified and was unacceptable.

[281] Whilst Mr Barber questioned whether DPS met various requirements in its establishment of the Stone CCI, such as whether the Secretary issued a written delegation to Mr Crane to appoint CPM pursuant to s.15(3) of the PS Act, whether the letter of appointment to CPM was sufficient for the purpose of the Secretary providing Mr Stone with the necessary authority and whether there were deficiencies in the short-form contract that had been prepared by DPS’ procurement team, as indicated earlier, it is not my role to review whether an administrative decision involved an error of law. Having reviewed Mr Barber’s submissions, I am not satisfied that these are sufficiently relevant for the purposes of paragraph 652(3)(g) and for providing DPS and Mr Barber a ‘fair go all round’.

DPS failure to comply with lawful procedures

[282] Throughout the extent of these proceedings Mr Barber developed and presented his case on the understanding that the Directions referred to in paragraph 15(3)(a) of the PS Act are the Guidelines. This was relevant to much of his submissions in respect of jurisdictional errors and failures to follow procedures prescribed by the enabling statute for investigating suspected breaches of the Code.

[283] I can understand why because of the following factors Mr Barber was under the impression that the Guidelines were the Directions:

[284] It was not until DPS was delivering its oral submissions on the 15th and final day of hearings that FWA and Mr Barber were to learn of the existence of Parliamentary Service Commissioner’s Direction 2000/1. 360

[285] Mr Barber declined my invitation for time to respond to Parliamentary Service Commissioner’s Direction 2000/1. In his oral submissions in reply Mr Barber referred to how he had proceeded with his application without knowledge of the existence of Parliamentary Service Commissioner’s Direction 2000/1. He had presented his case on his understanding that the Guidelines were the Commissioner’s Direction. His submissions had been presented on that basis and he had approached the evidence on that basis. He stated:

[286] Mr Barber suggested that the DPS conduct warranted an estoppel in pais. 362 Although it was not made clear, I understood Mr Barber’s submission to mean that in order to avoid the detriment suffered by his reliance upon the Guidelines as the relevant Commissioner’s Directions, I should proceed on the basis of relying on a purported representation by DPS that the Guidelines are the relevant Commissioner’s Directions. In an alternative submission I should take into account as a relevant consideration that Ms Greening and Mr Stone had proceeded with the CCI on the basis that the Guidelines were the relevant Commissioner’s Directions.

[287] I have some sympathy for Mr Barber, given that he is an unrepresented party. The tactic of not alerting him earlier achieved the effect of catching him off-guard after the evidence had been concluded and written submissions finalised.

[288] I have proceeded on the basis that Parliamentary Service Commissioner’s Direction 2000/1 is the Directions referred to in s.15(3) of the PS Act. I can find no evidence that DPS made the representation to Mr Barber that the Guidelines were the relevant Commissioner’s Directions, although it did nothing to correct his obvious misunderstanding.

[289] However, before moving off the subject I want to record my utter displeasure that FWA was not alerted to the existence of Parliamentary Service Commissioner’s Direction 2000/1 much earlier in the proceedings. Considering the extent to which the application turned on purported non-compliance with the prescribed requirements, it is the type of information that I expect a respondent who is legally represented to bring to the FWA member’s attention in its opening. In this case, the failure to do so has not assisted the efficient conduct of proceedings. Whilst applications can be defended fully and firmly, the tactic adopted is not the way that FWA proceedings should be conducted, particularly against an unrepresented party. I am bewildered at DPS’ approach - particularly given the Commonwealth’s obligation to act as a model litigant and the nature of that obligation as contained in the Legal Services Direction 2005 made pursuant to the Judiciary Act 1903 (C’th).

[290] Mr Barber’s submissions go to both instances of failures to comply with prescribed requirements and procedural fairness. I have already referred to the approach I am adopting.363

Failure to specify alleged breaches of the Code earlier

[291] Mr Barber submits that the Secretary erred because, whilst the letter that suspended him from duty and advised him of the CCI contained the allegation that he assaulted an employee, it did not refer to any element of the Code that the Secretary considered that Mr Barber may have breached. This absence demonstrates that the Secretary failed to attain the required state of mind (which was more than a casual belief and required him to give careful thought that took account of the facts) that there was a suspected breach of the Code. He relies on HR Paper No. 6 which applies ‘where a breach of the Code of Conduct has been alleged, or is suspected, and the Secretary considers that the allegation or suspicion should be investigated’ and the Guidelines.

[292] Mr Barber is in error by seeking to adopt a formal approach to the wording of HR paper No 6 and the Guidelines. His approach is in contrast to Parliamentary Service Commissioner’s Direction 2000/1 which states:

[293] Also, Mr Barber seeks to place too much reliance on a non-prescriptive provision in HR paper No 6 364 and the Guidelines. The absence of a specified suspected breach of the Code in that initial correspondence was not in breach of a provision of the PS Act or the basic procedural requirements set out in Public Service Commissioner’s Direction 2000/1. It cannot reasonably be suggested that if the allegation was proved it was not highly probable that a suspected breach of the Code had occurred.

Mr Stone’s advice of allegations

[294] In a related ground, Mr Barber submits that it was not adequate for Mr Barber to be informed of the suspected breaches of the Code by Mr Stone.

[295] I can find nothing in the PS Act, Public Service Commissioner’s Direction 2000/1 or HR paper No 6 or other provision made under the authority of the Commonwealth Parliament that regulates who can make an allegation which becomes the subject of a CCI and who the Secretary can authorise to inform the employee of the allegation(s) under investigation. 365

[296] Whilst Parliamentary Service Commissioner’s Direction 2000/1 provides that before any determination is made in relation to a suspected breach of the Code the employee must be informed of the details of the suspected breach, this provision was satisfied by Mr Stone’s letter to Mr Barber dated 13 October 2008.

Failure to provide Mr Stone with evidence favourable to Mr Barber

[297] Mr Barber submits that Mr Williams premeditated his provocation of Mr Barber and had disregarded a direction from Mr Wallace by removing the flyers. DPS deliberately withheld this information from Mr Stone.

[298] The submission that Mr Williams had disregarded a direction from Mr Wallace, relies on the evidence of Mr McAppion who had heard Mr Williams complain about the lack of a signature on the flyer and subsequently heard unidentified staff speaking about Mr Williams having gone to management to complain about the flyers. Mr McAppion stated that from his post at the end of the x-ray belt he saw Mr Wallace call Mr Williams from his post to the entrance doors of the main front and say words to the effect: ‘Keep your cool .... Be smart ... Don’t be a dickhead ... Cool it ... Don’t make this worse.’366 Mr Wallace did not recall saying those words.367 Mr Williams recalled having a conversation with Mr Wallace but could not remember the content. 368 Mr Stone interviewed Messrs Wallace and Williams but not Mr McAppion.

[299] Mr Barber submits that DPS’ failure to obtain CCTV footage from earlier on the day of the incidents, which showed that he had previously put information flyers in the same place as he did in Incident A, denied him evidence that was favourable to him. 369

Apprehension of bias

[300] Mr Barber’s submission is not about Mr Stone. Rather it is about Mr Lamond.

[301] The evidence did not support Mr Barber’s assertion that Mr Lamond had a conflict of interest in the CCI, or there was a reasonable apprehension of bias in relation to Mr Lamond’s involvement.370 It is not open to FWA to accept factual matters asserted from the bar table as evidence when the other party objects on the basis that the propositions are without foundation.371 I accept Mr Stone’s evidence that whilst Mr Lamond was his manager, he did not discuss the details of the actual investigation with Mr Lamond (although it is possible he may have had a discussion about departmental procedures) and that Mr Lamond had no influence on Mr Stone’s findings and reasons for his recommendation.372

Involvement of Messrs Kenny and Petteit

[302] Mr Kenny attended the meeting that occurred shortly after the incidents when the Secretary requested Mr Crane to inform Mr Barber he was to be suspended. There was no evidence that Mr Kenny was involved in the Stone CCI. Mr Kenny was involved in the decision to terminate Mr Barber’s employment,373 subsequent to the finalisation of the Stone CCI report and signed the letter of termination dated 14 January 2009.

[303] Mr Petteit attended the meeting when Mr Barber was informed that he was to be suspended pending an investigation. Given that Mr Petteit would give evidence against Mr Barber, this gave Mr Barber the impression that he would not receive a fair hearing. As the meeting was not to ask Mr Baber if he wanted to put anything to the Secretary about what had occurred, this indiscretion did not deny Mr Barber procedural fairness.

DPS contribution to Mr Barber’s state of mind

[304] Mr Barber submits that DPS directly and significantly contributed to the causation of the incidents by:

and that these repeated instances materially contributed to the working environment in which Mr Barber had to work and materially influenced his state of mind during the incidents.

[305] Mr Barber submits that the working environment coloured his thinking. Given his state of mind, he genuinely believed at the time of the incidents that what he did was justified and appropriate. He had no confidence that if he made a complaint against others it would have been followed through.

[306] In explaining his working environment Mr Barber makes a number of contentions, including that DPS has:

[307] Mr Barber submits that DPS had motive to injure him in his employment because:

[308] Mr Barber submits that at all times his actions as a union delegate, employee representative and union member campaigning for improved working conditions were reasonable.

[309] During the course of the lengthy hearing in which Mr Barber was self-represented, I gained insight as to why Mr Barber formed the subjective view that because of his industrial advocacy roles he had been singled out. My view is that it was not the fact that he advocated for working conditions, his hard bargaining, or even his passion for the causes he believes in that were the cause of the attention he has attracted.375 It has been his personal conduct in the way he went about what he describes as ‘a robust manner using all options open to him.’ It has been his failure to treat people with adequate respect and courtesy that has been his undoing. This has alienated him from colleagues who otherwise saw him as an effective PSS officer and acting supervisor.376 In attempting to justify his actions as ‘giving as good as he got’, he fails to recognise that in a representative role, leadership includes actually gaining others respect and setting an example for others to follow. Another contributing factor may have been that Mr Barber ventured beyond the role of union delegate into the role of union organiser, which is more detached from the workplace.

[310] It is regrettable that when the Parliamentary Service Merit Protection Commissioner returned Mr Barber’s complaints and Mr Barber forwarded these to the Secretary on 20 May 2008, no action was taken during June and July 2008 to investigate these, notwithstanding that the Kamira CCI had been established to investigate not dissimilar complaints about Mr Barber. This apparent double standard no doubt added to Mr Barber’s sense of frustration and fuelled his perception that others could harass him without fear of disciplinary action.

.

[311] I will take into consideration as a factor relevant to paragraph 652(3)(g) that Mr Barber believed at the time of the incidents that what he did was justified. However I do not accept that DPS contributed to Mr Barber’s misconduct. Mr Barber must accept responsibility for his actions in the 5 incidents.

DPS failure to protect Mr Barber from provocation

[312] In a ground somewhat related to Mr Barber’s submission that DPS contributed to his state of mind, he submits that the DPS environment ‘encouraged Mr Williams and Mr Silvano to provoke me to the degree they did so, in the belief that they would not suffer any consequences.’ 377

[313] Mr Barber refers to the Secretary’s failure to take action on his letter dated 20 May 2008, ‘which made complaints against the employees who were harassing and victimising me, including Messrs Williams, Phillips, Wade and Petteit’. 378

[314] I have already described the apparent delay in actioning Mr Barber’s correspondence as unreasonable and regrettable. My concern is compounded by the delay extending over 7 months until Mr Barber’s employment was terminated. However at the time of the incidents the delay was not of that length. Any delay falls short of being relevant for the purposes of paragraph 652(3)(g) as I have found that in respect of the respective incidents in which Messrs Williams and Silvano were involved, their contributions did not justify the extent of Mr Barber’s misconduct.

CONCLUSION ON HARSH, UNJUST OR UNREASONABLE AND A FAIR GO ALL ROUND

[315] Having regard to each of the matters in paragraphs 652(3)(a) to (g) insofar as they have application or are relevant to the circumstances of this case I am not satisfied that the termination of Mr Barber’s employment was harsh, unjust or unreasonable.

[316] There was a valid reason for the dismissal relating to his serious misconduct. The sanction of termination was based on breaches of the Code determined by an independent investigation in relation to conduct for which he was adequately notified. Notwithstanding the criminal proceedings he had fair opportunity to respond to the allegations. On the information that has been put to me in these proceedings, I am not satisfied that other relevant matters, when taken in total, are sufficient to outweigh those considerations and render a finding that Mr Barber’s dismissal was harsh, unjust or unreasonable.

[317] Despite the procedural difficulty identified in relation to paragraph 652(3)(c), I am of the view that the deficiency is not of sufficient significance to upset the conclusion that the termination of Mr Barber’s employment was not harsh, unjust or unreasonable.

[318] In arriving at my decision I have been conscious of the objects of Division 4 (Termination of Employment) of Part 12 of the Act, including ensuring that both Mr Barber and DPS are accorded a ‘fair go all round’.

[319] The application is dismissed.

COMMISSIONER

Appearances:

M. Barber on his own behalf.

R.Clynes for the respondent.

Hearing details:

2010.

Sydney.

February 15, 16, 17, 18, 23 and 24.

March 30,

April 19, 20, 21 and 22.

May 10.

August 18.

September 14 and 15.

1 Exhibit K10, Attachment E.

2 I have capitalised the subparagraph numbering in paragraph 8.

3 The effect of s.92(2) is to impose an evidentiary onus on anyone who disputes the correctness of a conviction to produce evidence that it is incorrect, but s.92 (2) does not alter the legal onus of proof of the facts underlying the conviction. As stated by the Australian Law Reform Commission in its Interim Report on Evidence (ALRC No 26, 1985), the provision ‘makes no attempt to specify the weight to be accorded to the conviction, nor does it set up a presumption that the conviction is assumed to be correct, such as to place a legal onus of disproof on the person convicted. ... A conviction has substantial evidentiary weight itself in any event and needs no presumption that it was justified. It is enough that the convicted person will have an evidentiary onus in the civil proceedings, if he disputes the facts sought to be proven by the conviction’ (at paras 777-778).

4 [2009] AIRC 926.

5 Refer to paragraph 28 below.

6 Martine Magers v Commonwealth of Australia (Department of Health and Ageing), [2010] FWAFB 4385, per Watson VP, Hamberger SDP, Connor C, at paras 20-21.

7 In Qantas Airways Ltd v Bruce Cornwall [1998] FCA 865 (24 July 1998) the Full Court of the Federal Court, in examining an appeal from an unfair dismissal considered it necessary to examine the relevant factual matrix surrounding the employee’s conduct relied on, to decide whether the termination was supported by the words in the statute.

8 Section 33 provides that a Parliamentary Service employee is entitled to review, in accordance with the determinations, of any Parliamentary Service action that relates to his or her Parliamentary Service employment.

9 Exhibit B26, pages 1055-1118.

10 Exhibit B26, pages 1122 & 1125-1126.

11 Exhibit B29, page 1496.

12 Exhibit B29, page 1498.

13 Exhibit B29, page 1499.

14 Exhibit B78.

15 Exhibit B29, pages 1509-1539.

16 Exhibit K7.

17 Exhibit B3.

18 MFI1.

19 Whilst Mr Barber had access to a redacted version of the petition, for reasons that included the privacy of the individuals, I ordered that he not have access to the unredacted form.’ (Transcript of proceedings on 16 February 2010, PN756)

20 Exhibit B76.

21 Exhibit B4 & Exhibit B31, page 1812.

22 Exhibit B31, page 1812.

23 Exhibit B31, page 1782.

24 Exhibit B42.

25 Exhibit B31, pages 1813-1818.

26 Exhibit B31, pages 1788-1799.

27 Exhibit B31, pages 1837-1845.

28 Exhibit B31, pages 1780-1787.

29 Exhibit B44, page 2696.

30 Exhibit B31, pages 1800-1812.

31 Exhibit B31, pages 1819-1836.

32 Exhibit B44 & Exhibit B31, pages 1780-1787.

33 Exhibit B44, page 2695.

34 Exhibit B31, pages 1842-1845.

35 Exhibit B30, page 1705.

36 Exhibit B10.

37 Exhibit B8.

38 Exhibit B9.

39 Exhibit B7.

40 Exhibit B11.

41 Under cross-examination Mr Barber stated that it had not occurred to him that he should sign the flyer, considering the way he was distributing it. (Transcript of proceedings on 24 February 2010, PN3689)

42 Exhibit B82, pages 44-45.

43 Transcript of proceedings on 19 April 2010, PN5817-PN5819.

44 Transcript of proceedings on 19 April 2010, PN5816, PN5818-5822 & PN5887.

45 Transcript of proceedings on 19 April 2010, PN5896.

46 Annexure T, page 646.

47 Transcript of proceedings on 19 April 2010, PN5877 & PN5882.

48 Whilst it was possible that Mr Kenny may have done something, there was no evidence to support that being the case. (Transcript of proceedings on 30 March 2010, PN5660; transcript of proceedings on 19 April 2010, PN5745 & PN7567-PN7568; transcript of proceedings on 20 April 2010, PN8903 & PN9152; transcript of proceedings on 21 April 2010, PN9513; and transcript of proceedings on 10 May 2010, PN12068)

49 Transcript of proceedings on 30 March 2010, PN5607-PN5674 and transcript of proceedings on 19 April 2010, PN5714-PN5800.

50 Transcript of proceedings on 30 March 2010, PN5639.

51 Transcript of proceedings on 30 March 2010, PN5640 & PN5655.

52 Transcript of proceedings on 30 March 2010, PN5642.

53 Exhibit K42.

54 Transcript of proceedings on 30 March 2010, PN5643.

55 Exhibit B105.

56 Transcript of proceedings on 19 April 2010, PN5724.

57 Transcript of proceedings on 19 April 2010, PN5725-PN5726.

58 Transcript of proceedings on 19 April 2010, PN5737.

59 Transcript of proceedings on 30 March 2010, PN5657 & PN5669.

60 Transcript of proceedings on 30 March 2010, PN5659.

61 Transcript of proceedings on 30 March 2010, PN5661 & PN5668.

62 Transcript of proceedings on 30 March 2010, PN5672.

63 Mr Lewis & Ms Gardiner. Mr Arthur considered Mr Wade’s observations to be unlikely to provide ‘evidence of substance to the specific allegation’ and did not interview him. (Arthur CCI report dated 6 November 2007, p 14 - DPS Folder - Volume 3)

64 The weight to be given to factors will generally be at the decision-maker’s discretion - Mallet v Mallet [1984] 156 CLR 605, 607, per Gibbs CJ at para 2.

65 Exhibit B6, para 380.

 66   Exhibit B63.

 67   Transcript of proceedings on 24 February 2010, PN4441, PN4442 & PN4463-PN4464.

68 Exhibit K9.

69 Written submissions dated 24 May 2010, paras 542- 544; transcript of proceedings on 14 September 2010, PN6687-PN6691; transcript of proceedings on 15 September 2010, PN9199.

70 Mr Barber’s submission that FWA should not accept the CCTV footage as credible evidence included a submission that a number of employees in the Parliamentary Service Operations Room (the patrol room), including Mr Colbert, had motive to injure him. The existence of motive may affect an assessment of the probability of something having happened but, in this case, an assertion of motive (even if it be plausible) is not sufficient to support a finding that the CCTV footage had been altered or otherwise tampered with. His other submissions for not accepting the CCTV footage were less than persuasive. I accept that there was no evidence of how Exhibit K9 was obtained or safeguarded. Mr Barber’s counsel did not object to the integrity of the CCTV footage in the criminal proceedings and the footage was accepted in those proceedings

71 Exhibit K1.

72 Transcript of proceedings on 19 April 2010, PN6038 & PN7056.

73 Exhibit B63 are contemporaneous handwritten notes of Ms Greening of the meeting (Transcript of proceedings on 24 February 2010, PN4221) that were uncontested.

74 Transcript of proceedings on 24 February 2010, PN4127.

 75   Transcript of proceedings on 20 April 2010, PN8575.

76 Exhibit B12.

 77   Transcript of proceedings on 20 April 2010, PN8543 & PN8560.

78 Exhibit B14.

 79   Transcript of proceedings on 15 September 2010, PN7974.

80 Exhibit K10, Attachment C.

81 Exhibit K10, Attachment D.

82 Exhibit K39, Attachment A.

 83   Annexure X.

 84   Ms Greening described this role as: ‘Basically to facilitate Mr Stone's process with respect to the provision of information that he requires, details of witnesses for instance, witness statements, authorise venues and meeting times; if he needs to speak to anybody.’(Transcript of proceedings on 30 March 2010, PN4643)

 85   Transcript of proceedings on 30 March 2010, PN5124.

86 Exhibit B16, page 462B

87 Exhibit B16, page 462C.

88 Exhibit B14.

89 Exhibit B32, page 1866.

90 Exhibit B16, page 463.

91 Exhibit K39, Attachment B8.

92 Exhibit B16, pages 469-472. The issues were listed under the headings of: Your particulars; Objection to the allegation; Failure of DPS to comply with statutory requirements; Production of evidence; DPS employee relationships; and Legal proceedings reserved.

93 Exhibit B39, pages 2445-2450.

94 Exhibit B16, pages 473-474.

95 Exhibit B16, pages 533-536.

96 Exhibit B16, pages 538-539.

97 Exhibit B16, pages 540-542.

98 Exhibit B16, pages 543-544.

 99   Exhibit B16, pages 547-551.

100 Ibid.

101 Exhibit B16, page 552.

102 Exhibit B16, pages 555-556.

103 Exhibit B42, pages 2579-2584.

104 Exhibit B67.

105 Exhibit B32, page 1859.

106 Exhibit B32, pages 1860-1865.

107 Exhibit B42, pages 2605-2606.

108 Exhibit B17.

109 Exhibit B16, pages 559-562.

110 Exhibit B16, pages 559-562.

 111   Transcript of proceedings on 30 March 2010, PN5118.

112 Exhibit K10 & PN5107.

113 Transcript of proceedings on 30 March 2010, PN5125.

 114   Exhibit B111 and transcript of proceedings on 19 April 2010, PN6024.

115 Exhibit K10, Attachment F.

116 McHugh and Gummow JJ, (1995) 185 CLR 410 at 465.

117 The Note to s.635(2) states that the expression ‘fair go all round’ was used by Sheldon J in Re: Loty and Holloway v Australian Workers Union [1971] AR (NSW) 95.

118 Print S4213, 17 March 2000, per Ross VP, Williams SDP, Hingley C.

119 PR954993, 9 February 2005, per Lawler VP, Leary, DP, Deegan C, paras 17 &18.

120 (1938) 60 CLR 336.

121 Ibid, per Dixon J at p 363.

122 Ibid, per Dixon J at p 362.

123 Ibid, per Rich J at p 350.

124 [2007] AIRCFB 797, 5 October 2007, per Giudice P, Lacy SDP, Cargill C.

 125   Written submissions dated 24 May 2010, para 318. In his oral submissions Mr Barber accepted that FWA could not make a judicial act or finding. (Transcript of proceedings on 18 August 2010, PN6055)

126 Written submissions dated 24 May 2010, para 351. To the contrary, it is well established that each of the paragraphs in s.652(3) must be considered in determining an application for relief in respect of termination of employment - Re: P. Annetta, Print S6824, 7 June 2000, per Giudice P, Williams SDP, Cribb C.

127 Written submissions dated 24 May 2010, para 340.

 128   Visscher v The Honourable President Justice Giudice [2009] HCA 34 (2 September 2009) per Gummow J, para 5.

129 In summary, if the decision maker acts otherwise in accordance with his or her legal functions or powers it will be a jurisdictional error, such as where the decision maker purports to act wholly or partly outside the theoretical limits of his or her functions and powers. Less obviously, jurisdictional error will occur if the decision maker acts without some essential precondition to the exercise of the power being satisfied or misconstrues the legislative provision and thereby misconceives the nature of the function he or she is performing or the extent of the powers in the circumstance of the particular matter. However where a decision maker exercises a function or power that grants the decision maker some discretion and the decision maker makes an error in that discretionary element, this will be an error of law, but it will be classified as a non-jurisdictional error.

130 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (24 October 1995), per Brennan, Deane, Toohey, Gaudron, McHugh JJ; Jadwan Pty Ltd v Secretary, Department of Health & Aged Care [2003] FCAFC 288 (12 December 2003), per Gray, Kenny, Downes JJ, at para 68.

131 (1998) 194 CLR 355, per McHugh, Gummow, Kirby and Hayne JJ.

132 Ibid, para 93.

133 (2002) 209 CLR 597, para 51.

134 Ibid, para 101.

135 Legal Briefing Number 67, 15 August 2003, ‘Don’t Think Twice - Can Administrative Decision Makers Change Their Mind?’.

136 Crozier, in the matter of an application for Writs of Certiorari and Mandamus against the Australian Industrial Relations Commission [2001] FCA 1031 (1 August 2001), per Gray, Branson, Kenny JJ, para 15. .

137 Clause 7.44 of the Explanatory Memorandum to the Workplace Relations and Other Legislation Amendment Bill 1996 stated:

138 Refer to s.643(1) of the Act.

139 Transcript of proceedings on 15 February 2011, PN335.

140 Re Cram Ex parte Newcastle Wallsend Coal Co Pty Ltd, (1987) 163 CLR, per Mason CJ, Brennan, Deane, Dawson and Toohey JJ, at 140 & 149; Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia, (1987) 163 CLR 656, per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ, at 666; Precision Data Holdings Ltd v Wills, (1991) 173 CLR 167, per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ, at 189; Re Dingjan; Ex parte Wagner (1995) 183 CLR 323, per Gaudron J, at 360-361.

141 [2003] 127 IR 432 at 439, per Gray J.

 142   (1981) AC 75 95.

143 Op cit.

144 Crozier, in the matter of an application for Writs of Certiorari and Mandamus against the Australian Industrial Relations Commission [2001] FCA 1031 (1 August 2001), per Gray, Branson & Kenny JJ.

145 At para 15.

 146   Transcript of proceedings on 14 September 2010, PN6562 & PN7192.

147 Pamela T Wilson v Australian Taxation Office, PR910942, 9 November 2001, per McIntyre VP, Harrison SDP, Lawson C, para 53.

148 (1995) 62 IR 371, at p 373.

149 Written submissions dated 24 May 2010, para 216.

150 Transcript of proceedings on 16 February 2010, PN1119.

151 Transcript of proceedings on 16 February 2010, PN1158 & PN1166.

152 Transcript of proceedings on 16 February 2010, PN1127.

153 Transcript of proceedings on 16 February 2010, PN1161.

154 Transcript of proceedings on 10 May 2010, PN12067.

155 Transcript of proceedings on 10 May 2010, PN12077.

156 Transcript of proceedings on 19 April 2010, PN7228-PN7231.

157 Transcript of proceedings on 20 April 2010, PN8828-PN8833.

158 Transcript of proceedings on 20 April 2010, PN9056-PN9057.

159 Transcript of proceedings on 21 April 2010, PN9386-PN9387.

160 Transcript of proceedings on 21 April 2010, PN9861-PN9862 & PN9880-PN9882.

161 Transcript of proceedings on 21 April 2010, PN9886.

162 Transcript of proceedings on 21 April 2010, PN10916.

163 Transcript of proceedings on 21 April 2010, PN10969-PN10972.

164 Transcript of proceedings on 21 April 2010, PN10932-PN10941.

165 Print S6238, 22 May 2000, per Ross VP, Polites SDP and Smith C - particularly as summarised at par 25.

 166   Transcript of proceedings on 24 February 2010, PN3972.

 167   Transcript of proceedings on 20 April 2010, PN8010.

 168   Transcript of proceedings on 21 April 2010, PN9644.

 169   Exhibit K16.

170 Exhibit K16.

171 Exhibit K4.

172 Exhibit K16.

173 Exhibit K31.

174 Exhibit K4.

175 Exhibit K16; transcript of proceedings on 20 April 2010, PN7784.

176 Transcript of proceedings on 20 April 2010, PN7791.

177 Transcript of proceedings on 20 April 2010, PN7772-PN7773.

178 Exhibit K2.

179 Exhibit K31. Even if Mr Webster had viewed more than the commencement of the CCTV footage before he typed his statement, that would not influence this evidence. (Transcript of proceedings on 21 April 2010, PN10213)

180 Transcript of proceedings on 17 February, PN2248-PN2249.

181 Transcript of proceedings on 17 February, PN2213.

182 Exhibit K21, page 3.

183 Exhibit B6, para 374.

184 Transcript of proceedings on 17 February 2010, PN1975.

185 Transcript of proceedings on 17 February 2010, PN1968.

186 Transcript of proceedings on 17 February 2010, PN1983.

187 I do not accept as appropriate or relevant Mr Barber’s submission that: ‘It is unreasonable to expect the applicant to have known what was in the mind of Mr Williams or the other PSS employee representatives and therefore the exact degree of unhappiness that the information flyers may have caused any of them.’ (Paragraph 75(f) of his written submissions dated 24 May 2010.) Under cross-examination Mr Barber conceded that he knew ‘undoubtedly, to a degree’ that by having put out the terms of the flyer which named Messrs Phillips, Colbert, Wade and Williams, he would have upset those gentlemen. (Transcript of proceedings on 24 February 2010, PN3715)

 188   By accessing rosters, it is possible for an employee to inquire about which security points employees are required to be stationed (Transcript of proceedings on 21 April 2010, PN9548-PN9620), although I accept that it is left to the employees at each point to work out which positions they will man. (Transcript of proceedings on 18 August 2010, PN5439-PN5440)

 189   Transcript of proceedings on 18 August 2010, PN5385.

190 Exhibit K2.

191 Exhibit B6, para 377.

192 Transcript of proceedings on 17 February 2010, PN2046.

193 Exhibit K14.

194 Transcript of proceedings on 20 April 2010, PN8296.

195 Exhibit K13, page 1.

196 Exhibit K14, page 2.

197 Transcript of proceedings on 19 April 2010, PN6703.

198 Exhibit K14, page 2.

199 Transcript of proceedings on 19 April 2010, PN7253. Mr Petteit retired from the Navy with the rank of Chief Petty Officer.

200 Transcript of proceedings on 19 April 2010, PN6700-PN6708.

201 Transcript of proceedings on 20 April 2010, PN8212.

202 Except for disagreement over when certain events happened. Mr Barber’s written submissions dated 24 May 2010, para 103.

 203   Transcript of proceedings on 18 August 2010, PN5511.

 204   Transcript of proceedings on 24 February 2010, PN3863.

 205   Transcript of proceedings on 24 February 2010, PN3865.

 206   Transcript of proceedings on 18 August 2010, PN5549.

207 Transcript of proceedings on 19 April 2010, PN6850 & PN6852.

208 Transcript of proceedings on 19 April 2010, PN6776, PN6782, PN6788 & PN6801.

209 Transcript of proceedings on 19 April 2010, PN6789 & PN6792.

210 Transcript of proceedings on 19 April 2010, PN6798.

211 Transcript of proceedings on 19 April 2010, PN6565, PN6573, PN6814-PN6820 & PN6827.

212 Transcript of proceedings on 19 April 2010, PN6828-PN6845.

 213   Transcript of proceedings on 19 April 2010, PN6818-PN6820 & PN6827.

214 Transcript of proceedings on 19 April 2010, PN6569-PN6572, PN6858-PN6862.

215 Exhibit K19, page 1; transcript of proceedings on 20 April 2010, PN8363 & PN8381.

216 Transcript of proceedings on 20 April 2010, PN8364-PN8387.

 217   Transcript of proceedings on 20 April 2010, PN7906-PN7909.

218 Exhibit K19, page 1; transcript of proceedings on 20 April 2010, PN7915, PN8373 & PN8402-PN8409.

219 Transcript of proceedings on 20 April 2010, PN7914.

220 Exhibit K19, page 1.

221 Transcript of proceedings on 20 April 2010, PN7931.

222 Transcript of proceedings on 20 April 2010, PN8434 & PN7927-PN7928.

223 Transcript of proceedings on 21 April 2010, PN10751.

224 Transcript of proceedings on 21 April 2010, PN10786.

225 Transcript of proceedings on 21 April 2010, PN10779-PN10781.

226 Transcript of proceedings on 21 April 2010, PN10760.

227 Transcript of proceedings on 21 April 2010, PN10722.

228 Transcript of proceedings on 21 April 2010, PN10743.

229 Transcript of proceedings on 21 April 2010, PN10880-PN10881.

230 Transcript of proceedings on 21 April 2010, PN10917.

231 Transcript of proceedings on 19 April 2010, PN6721.

232 Transcript of proceedings on 19 April 2010, PN6780.

233 Exhibit B6, para 409.

234 Evidence of Mr Barber at transcript of proceedings on 24 February 2010, PN3865.

 235   Transcript of proceedings on 18 August 2010, PN5551.

236 Exhibit B23. (Mr Williams disputes where Exhibit B23 depicts himself and Mr Barber to be in the corridor.)

 237   Transcript of proceedings on 18 August 2010, PN5525.

238 Exhibits B53 & B55.

239 Transcript of proceedings on 21 April 2010, PN10809.

240 Transcript of proceedings on 19 April 2010, PN6906.

241 Transcript of proceedings on 19 April 2010, PN7029.

242 Exhibit K29; transcript of proceedings on 21 April 2010, PN10000.

243 Exhibit K30; transcript of proceedings on 21 April 2010, PN10003 & PN10006.

244 Transcript of proceedings on 21 April 2010, PN10001.

245 Transcript of proceedings on 21 April 2010, PN9970-PN9976.

246 Exhibit B6, para 454.

247 Exhibit K24.

248 Transcript of proceedings on 21 April 2010, PN10369 & PN10379.

249 Transcript of proceedings on 21 April 2010, PN10341.

250 Exhibit K34, page 1.

251 Ibid.

252 Transcript of proceedings on 21 April 2010, PN10953.

253 Transcript of proceedings on l0 May 2010, PN11992; Exhibit K40.

254 Exhibit K41.

255 Transcript of proceedings on 10 May 2010, PN12073.

256 Transcript of proceedings on 10 May 2010, PN12074-PN12075.

257 Transcript of proceedings on 10 May 2010, PN12067 & PN12076-PN12077.

258 Exhibit B6, paras 440-462.

259 Exhibit B6, para 452.

 260   Transcript of proceedings on 18 August 2010, PN5612.

261 Transcript of proceedings on 20 April 2010, PN9026-PN9028.

262 Exhibit K34, page 1; transcript of proceedings on 21 April 2010, PN10392 & PN104020.

263 Transcript of proceedings on 21 April 2010, PN10458. Mr Barber contends that Mr Silvano, was going to be his witness in the Arthur CCI but withdrew for reasons that Mr Barber asserts related to Mr Silvano being placed on the supervisors higher duties list.

264 Transcript of proceedings on 21 April 2010, PN10466.

265 Transcript of proceedings on 20 April 2010, PN8978-PN8984.

266 Exhibit K22.

267 Exhibit B94.

268 Exhibit K22.

269 Transcript of proceedings on 20 April 2010, PN8988.

270 Exhibit K22.

271 Transcript of proceedings on 20 April 2010, PN8990 and Exhibit K22.

272 Exhibit K22.

273 Transcript of proceedings on 20 April 2010, PN9012 & PN9015-PN9016.

274 Exhibit B94, email dated 15 September 2008.

275 Transcript of proceedings on 20 April 2010, PN9030.

276 Transcript of proceedings on 20 April 2010, PN9036-PN9037.

277 Transcript of proceedings on 20 April 2010, PN9057.

278 Exhibit K26.

279 Ibid.

280 Transcript of proceedings on 21 April 2010, PN9877.

281 Transcript of proceedings on 21 April 2010, PN9892.

282 Transcript of proceedings on 21 April 2010, PN9882-PN9886.

283 Exhibits K40 & K41.

284 Exhibit B6, paras 475 & 478.

 285   Transcript of proceedings on 18 August 2010, PN5614.

286 Pamela T Wilson v Australian Taxation Office, op cit, para 51. In that case the Full Bench found that a valid reason existed, even though the reason relied upon by the ATO was not that reason.

 287   Transcript of proceedings on 18 August 2010, PN5423.

288 (1961) 60 AR(NSW) 48 at 66, per Richards, Beattie & Kelleher JJ.

289 A similar approach was adopted in Re: Australian Bureau of Statistics, PR963720, 10 October 2005, per Giudice P, Watson SDP, Simmons C, at para 22.

290 P Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, Print S5897, 11 May 2000, per Ross VP, Acton SDP, Cribb C, at para 64; Ben Clifton Sabeto v Waterloo Car Centre Pty Limited trading as Red Spot Rentals, PR930816, 20 May 2003, per Acton SDP, O'Callaghan SDP, Foggo C, at para 8.

291 P Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, op cit, at para 73; Ben Clifton Sabeto v Waterloo Car Centre Pty Limited trading as Red Spot Rentals, op cit, at para 8.

292 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, op cit, at para 75.

293 Tenix Defence Systems Pty Ltd v Fearnley, Print S6238, 22 May 2000, per Ross VP, Polites SDP, Smith C, at para 83.

294 Shorten and Others v Australian Meat Holdings Pty Ltd, Ross VP, (1996) 70 IR 360, 361.

295 Wadey v YMCA Canberra [1996] IRCA 568 (12 November 1996).

296 MFI4.

297 Mr Barber may have been lead to believe that they were more that guidelines when, in paragraph 19 of the Record of Code of Conduct investigation, the Secretary refers to DPS ‘obligations’ under the Guidelines.

 298   The expression used in paragraph 25 of Goreng Goreng v Jennaway (at paragraph 206 below).

 299   [2005] FCA 786 (17 June 2005), per Stone J.

 300   Written submissions dated 24 May 2010, para 440.

 301   [1995] HCA 40; (1995) CLR 1 (6 September 1995), per Deane CJ and Toohey, Gaudron, McHugh, Gummow JJ.

 302   [1983] HCA 10; (1983) 152 CLR 281 (18 March 1983).

 303   Per Gibbs CJ, at paras 10-11.

 304   Per Mason, Murphy, Wilson JJ, at para 17.

305 (1982) 7 ACLR 202, per Wootton J.

306 Sanford v Austin Clothing Company Pty Ltd trading as Gaz Man, Print S8287, 19 July 2000, per Watson SDP; Howarth v Mornington Peninsula Shire Council, Print S0138, 13 October 1999, per Whelan C; Andrew Kvackaj v Monash University, PR958598, 3 June 2005, per Ives DP; Shane Rolls v MacMahon Contractors Pty Ltd, PR968100, 27 January 2006, per Richards C.

307 [2007] FCA 2083 (12 December 2007).

 308   Such as in transcript of proceedings on 30 March 2010, PN4887, PN4991-PN4995, PN5020, PN5021 & PN5033.

309 [1948] 1 KB at 229.

310 Ibid.

311 At 230.

 312   [1984] 3 All ER 935, [1983] UKHL 6, [1984] 3 WLR 1174, [1985] ICR 14, [1985] AC 374, [1985] IRLR 28, 22 November 1984, at page 17.

 313   In Re Minister for Immigration and Multicultural Affairs [2003] HCA 30 (17 June 2003); 198 ALR 59, per Gleeson CJ, McHugh, Gummow, Kirby, Callinan JJ, the High Court indicated that it was open to the proposition that a decision can be invalid on the basis of irrational or illogical reasoning or fact finding by a decision maker, although something more serious than poor expression or reasoning would have to be demonstrated.

314 [2011] FCA 30 (31 January 2011).

 315   Transcript of proceedings on 14 September 2010, PN6894.

 316   [2000] FCA 1339, 19 September 2000, per Gyles J.

 317   [2007] NSWSC 490, 15 May 2007, per Einstein J.

 318   [2004] FCA 586, 23 April 2004, per Gray J.

 319   PR954267, 15 December 2004, per Acton SDP, Duncan SDP, Grainger C.

 320   [2009] FCA 619, per Perram J.

 321   Commonwealth Bank of Australia v Christian Orlando May, op cit, at para 20.

322 Principle (j) of the McMahon v Gould principles.

323 Exhibit B39, pages 2451-2456.

 324   Transcript of proceedings on 14 September 2010, PN6673-PN6674.

 325   [2008] FCA 422 (1 April 2008), per Madgwick, J.

 326   Mr Barber had been given copies of all of the witness statements and was clear on the allegations. However he still wanted to be provided with a copy of the CCTV footage. (Transcript of proceedings on 14 September 2010, PN6674.)

327 Two weeks from Mr Stone’s letter dated 7 November 2008.

 328   This undisputed proposition is based on hearsay evidence by Ms Greening of what Mr Barber had said at a conference in the Commission. (Transcript of proceedings on 19 April 2010, PN6439)

329 Exhibit B16, page 561, para 24.

330 Transcript of proceedings on 15 February 2010, PN339 & PN341.

 331   Transcript of proceedings on 14 September 2010, PN6563 & PN6574.

332 Exhibit B12 & Exhibit B14.

333 Written submissions dated 24 May 2010, para 586.

334 Submission of Mr Barber in transcript of proceedings on 18 August 2010, PN5627.

335 Transcript of proceedings on 24 February 2010, PN4327.

336 Transcript of proceedings on 24 February 2010, PN4241-PN4244.

337 Transcript of proceedings on 22 April 2010, PN11288-PN11290.

338 Transcript of proceedings on 22 April 2010, PN11853.

 339   Exhibit B109.

340 Re: P. Annetta, op cit, at para 16.

341 Re Bostik (Australia) Pty Ltd v Vdimitrja Gorgevski [1992] FCA 209; (1992) 36 FCR 20 (14 May 1992) ), per Heerey J, at para 37.

342 A factor held relevant in AWU-FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385 at 393, per Moore J, in the consideration of whether dismissal resulting from a physical confrontation was harsh, unjust or unreasonable.

343 Transcript of proceedings on 14 September 2010, PN6600-PN6602.

344 Written submissions dated 24 May 2010, para 53; transcript of proceedings on 18 August 2010, PN5395.

 345   Transcript of proceedings on 18 August 2010, PN5556.

346 [1997] 854 FCA (1 August 1997).

347 [1984] HCA 46; (1984) 154 CLR 606.

348 [2010] FWAFB 4082, per Acton SDP, Ives DP, Smith C.

 349   Transcript of proceedings on 18 August 2010, PN5837 & PN5839.

350 Whilst Messrs Williams and Silvano were not the subject if a CCI, Ms Greening was unaware of what action had been taken. Mr Barber did not ask Messrs Petteit, McDowall, Williams or Silvano whether any form of disciplinary action had been taken against either.

351 In considering whether an inference could be drawn, I have been guided by the summary of principles for the drawing of inferences identified by a Full Bench of the Commission in A Smith and others v Moore Paragon Australia Ltd, (PR915674, 21 March 2002, per Ross VP, Lacy SDP, Simmonds C.

352 Mr Stone had in his possession the statements that Messrs Cook and Webster made on 1 August 2008 and these went beyond the number of members of the public who witnessed Incident A.

353 Given that Mr Barber’s wording in the flyer would reasonably be expected to be offensive to Mr Williams, I would have thought the reason why he threw such unofficial material in the bin was obvious.

 354   The number referred to by Mr Barber in his submissions. (Transcript of proceedings on 18 August 2010, PN5782) Mr Barber did not seek that others be summonsed to give evidence in these proceedings.

 355   Exhibit K39, Attachment A.

 356   This was to become Exhibit B17.

 357   Para 390 of Submissions dated 24 December 2009.

 358   Transcript of proceedings on 22 April 2010, PN11197.

 359   Transcript of proceedings on 30 March 2010, PN4659-PN4665.

 360   Transcript of proceedings on 15 September 2010, PN7718.

 361   Transcript of proceedings on 15 September 2010, PN9061.

 362   A common law estoppel arising from the facts, which prevents an unjust departure from an assumption of fact which the person estopped has caused another to adopt or accept for the purposes of their legal relationships - Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641. Estoppels in pais can be subdivided into estoppels by convention and estoppels by representation.

363 Refer to paragraphs 113-123.

 364   As referred to in paragraph 291.

 365   Of course, those prescribed arrangements do not constitute a code concerning the employment of PSS officers as they do not encompass the common law. Many conditions of employment remain within the discretion of executive government - Re: Department of Defence, PR935265, 28 July 2003, per Munro J, O’Callaghan SDP, Deegan C, at paras 133-134.

366 As testified by Mr McAppion. (Exhibit B1)

367 Transcript of proceedings on 21 April 2010, PN9669.

 368   Transcript of proceedings on 20 April 2010, PN8052.

 369   Transcript of proceedings on 18 August 2010, PN5630.

370 In forming this view I found the analysis of the basis of Mr Barber’s submission (refer to paragraph 70 of Blake Dawson’s written submissions dated 15 June 2010 on behalf of DPS) instructive.

371 Transcript of proceedings on 30 March 2010, PN4730; R v Commonwealth Conciliation & Arbitration, Ex Parte Melbourne and Metropolitan Tramways Board (1965) 113 CLR 228 at 243, per Barwick CJ.

372 Transcript of proceedings on 21 April 2010, PN11087-PN11090.

373 Transcript of proceedings on 30 March 2010, PN5343 & PN5356.

 374   Mr Barber claims that DPS caused, or were party to causing, the petition or used the petition for the purpose of defaming him and removing him from the PSS WCC (refer to subparagraph 34(e) above). DPS submits that the petition was not a departmental document, being signed by Mr Barber’s fellow workers.

375 DPS conceded he had been an effective union delegate. (Transcript of proceedings on 15 February 2010, PN241)

376 For example, Mr Mayne considered Mr Barber to perform well in his role as PSS officer and when he acted as a supervisor, but not to similarly perform when that role was combined with his roles as WCC representative and AFPA delegate. (Transcript of proceedings on 20 April 2010, PN9145-PN9156)

 377   Transcript of proceedings on 18 August 2010, PN5920.

 378   Transcript of proceedings on 18 August 2010, PN5909.



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