Judgment

This is an unfair dismissal application made by William James Sandilands under s 84(1) of the Industrial Relations Act 1996 (NSW) (“the Act”) following the termination of his employment with Legal Aid NSW (“Legal Aid”) on 11 December 2017.

The facts

The applicant relies on a statement he has signed dated 19 March 2018. That statement includes 7 annexures. The applicant also tendered into evidence three references, or testimonials, attesting to his good character. Legal Aid read an affidavit by Daryn Nickols, the Manager, Workplace Standards for Legal Aid. Exhibit 1 to that affidavit comprised two lever arch folders containing 771 pages of documents within 39 separate tabs. Despite the volume of documentary evidence tendered, the facts of this matter are not greatly in dispute. To the extent that they are agreed, or not contested, they may be summarised as follows:

The applicant is 63 years of age. The applicant commenced working with Legal Aid as a solicitor in 1986. At all times during his employment he worked in Legal Aid’s Criminal Law Division. In 1992 he was promoted to the position of Solicitor Advocate. In approximately 2000 he was again promoted to the position of Senior Solicitor Advocate. In February 2017 the role of Senior Solicitor Advocate was removed, and the applicant was redeployed to the role of Solicitor Advocate. The role of Solicitor Advocate was a senior position within Legal Aid’s organisation. The role description for the position of Solicitor Advocate:

included a key accountability of mentoring staff within the Criminal Law Division; described the applicant’s key relationships as including those with clients, prosecuting authorities, the courts and the judiciary; and provided that the applicant was expected, amongst other things, to model the highest standards of ethical behaviour and reinforce them in others, promote a culture of integrity and professionalism, set an example for others to follow, monitor ethical practices, standards and systems and reinforce their use, and present with credibility.

The applicant was a “Public Service employee” for the purposes of the Government Sector Employment Act 2013 (NSW) (“the GSE Act”). The applicant had a good employment record. There is no suggestion that there were ever any issues with the applicant’s performance or conduct at work. Indeed, in January 2003 he was awarded the Public Service Medal for outstanding public service. On 13 June 2016 the applicant was involved in a domestic violence incident with his now-estranged wife in their home. This incident was witnessed in part by their daughter. As a result of this incident, the applicant was arrested and charged with assault occasioning actual bodily harm (DV) (“Charge”) pursuant to s 59(1) of the Crimes Act 1900 (NSW) (“Crimes Act”). On 16 June 2016 the applicant informed Legal Aid of the Charge. On 27 June 2016 the applicant disclosed the Charge to the Law Society of New South Wales. From 28 June 2016 Legal Aid suspended the applicant from duty on full pay. The applicant pleaded not guilty to the Charge. On 24 January 2017 the applicant was convicted of the Charge in the Penrith Local Court. He was placed on a 12 month good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court also made an Apprehended Domestic Violence Order for a period of 12 months. The applicant immediately appealed the conviction, sentence and Apprehended Domestic Violence Order. On 25 January 2017 the applicant informed Legal Aid of his conviction by the Penrith Local Court. From 9 February 2017 Legal Aid suspended the applicant from duty without pay. On 28 September 2017 Judge Buscombe of the District Court of New South Wales handed down judgment on the applicant’s appeal (“the District Court Decision”). His Honour found that the applicant had hit his wife on at least one occasion to the face and eye area and placed his hands around her throat, and “in effect choke[d] her”, causing injury to her. His Honour upheld the finding of guilt against the applicant, but issued a bond pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), with no conviction being recorded. The court imposed an Apprehended Domestic Violence Order of 4 months. On 13 October 2017 Brendan Thomas, the Chief Executive Officer of Legal Aid, sent a letter to the applicant. In the letter Mr Thomas informed the applicant that he had come to the view that the applicant had engaged in misconduct and that Mr Thomas was considering taking disciplinary action against the applicant in accordance with the GSE Act. Mr Thomas invited the applicant to provide a written submission in response within 14 days. Mr Thomas also stated that he had determined to back pay the applicant's salary from the commencement of the period of suspension without pay, pending the applicant's reply. The applicant responded to Mr Thomas by way of a letter dated 25 October 2017. The applicant noted that Mr Thomas had not considered the full judgment of the District Court, which was not available at that time, and suggested that the judgment contained relevant mitigating information. By letter dated 2 November 2017 Mr Thomas confirmed to the applicant that he would defer a final decision until he had regard to the full judgment of his Honour, Judge Buscombe. Mr Thomas informed the applicant that he would remain suspended from employment pending the final decision, but that the applicant would continue to be paid for the immediate period. By letter dated 1 December 2017 Mr Thomas advised the applicant that, in accordance with section 69(4) of the GSE Act, he had decided to terminate the applicant’s employment, after giving him an opportunity to resign. At the hearing Legal Aid placed particular emphasis on that letter, so it is worthwhile quoting from it at some length. It contained the following passages:

I acknowledge that His Honour Judge Buscombe described this matter as ‘a man of exemplary good character, in a situation of great stress and strain responding to some physical provocation has lost control of himself relatively momentarily’. I have also considered your contribution to Legal Aid NSW and your many years of service (I have already made a concession to your otherwise good record of employment by back-paying the salary that was withheld from you since February 2017). I have also considered potential alternatives to the proposed termination of your employment.

You will appreciate that I need to balance your interests against those of Legal Aid NSW, the public’s expectations regarding the standards of conduct of public sector employees and the need to uphold the reputation and standing of Legal Aid NSW within the community and with our stakeholders.

You would know that Legal Aid NSW has an important role in addressing domestic and family violence. You would be aware that we have a dedicated Domestic Violence Unit that leads the provision of services to assist members of the community who are or have experienced domestic violence. You may also be aware that Legal Aid NSW administers the Women's Domestic Violence Court Advocacy Program, including NSW government funding for 28 Women's Domestic Violence Court Advocacy Services across the state. The demand for these services continues to grow.

Legal Aid NSW has a Domestic and Family Violence Strategy (2016-2018), the objectives of which include: prioritising victims of domestic violence in the delivery of our services, prevention and reduction of domestic violence and increasing awareness of our domestic violence services. In 2017 we also rolled out mandatory domestic and family violence training to all frontline staff.

I am obliged to consider your conduct in the broader context of our work addressing domestic violence, our commitment to this work and the need to maintain and protect the credibility and reputation of Legal Aid NSW in the delivery of these services.

By virtue of our unique role I am obliged to take a strong stance when it comes to acts of violence against women.

I have determined, with regard to the particular nature of the misconduct, and the competing interests I am obliged to consider, that I cannot countenance your continued employment with Legal Aid NSW and have decided to implement the following action in accordance with section 69(4) of the GSE Act:

 terminate the employment of the employee (after giving the employee an opportunity to resign).

In an email sent on 8 December 2017 the applicant informed Legal Aid that he would not be resigning. By letter dated 11 December 2017 Mr Thomas confirmed to the applicant the termination of his employment, with immediate effect. By letter dated 20 February 2018 the Law Society of New South Wales informed the applicant that at a meeting of the Society’s Disclosure Committee on 15 February 2018 it was resolved that he was a fit and proper person to hold a practising certificate.

I will briefly summarise the evidence adduced by the parties. In his statement the applicant outlines his employment history as a solicitor, in particular with Legal Aid. He describes the circumstances and process that culminated in his dismissal. He expresses his desire to remain working as a solicitor, especially with Legal Aid. He expresses sincere regret for his actions on the night of 13 June 2016 and the impact that they had and are having on his estranged wife and daughter, and the applicant’s relationship with them. He expresses shame for what he did. He asserts that he will not re-offend in the future. He states that he has endeavoured to obtain some casual legal work but this has proved difficult with these proceedings pending. The references, or testimonials, relied on by the applicant were provided by three members of the legal profession who had come to know the applicant through his work for Legal Aid. Legal Aid relied solely on Mr Nickols’ affidavit. In summary, that affidavit traverses 4 areas:

the regulatory framework underpinning the applicant’s employment with Legal Aid, and the terms and conditions of that employment; the disciplinary process culminating in the termination of the applicant’s employment; Legal Aid’s commitment to addressing domestic and family violence; and the “whole of NSW Government” commitment to addressing domestic and family violence.

The Law

Harsh, unreasonable or unjust

This matter is brought under s 84 of the Act, which relevantly provides as follows:

84 Application for remedy by dismissed employee

(1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part.

Section 88 of the Act provides:

88 Matters to be considered in determining a claim

In determining the applicant’s claim, the Commission may, if appropriate, take into account:

(a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and

(b) if any such reason was given—its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and

(c) whether a warning of unsatisfactory performance was given before the dismissal, and

(d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and

(e) whether or not the applicant requested reinstatement or re-employment with the employer, and

(f) such other matters as the Commission considers relevant.

To be entitled to any remedy under the Act the on is on the applicant to prove that his dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273. It is now well accepted that each of the words “harsh, unreasonable or unjust” requires discrete consideration. As stated by the Full Bench of the Commission in Corrective Services NSW v Danwer [2013] NSWIRComm 61:

[21] … It has been said those words constitute a "tautological trinity" (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a "tautological trinity". As it was stated in Byrne:

It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

See also NUW (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388; (2005) 146 IR 441 at [64] and Department of Health v Perihan Kaplan [2010] NSWIRComm 65 at [25]-[32].

In Outboard World Pty Limited (t/a Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167 at 183, the Full Bench made the following observations:

In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made.

The regulatory context

Legal Aid submits that it is “important to start with a consideration of the regulatory context, as such context must be considered in the determination of an unfair dismissal claim”. This submission is supported by reference to Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124. In that case, McColl JA stated:

[146] Nevertheless, in my view, it can be implied from the fact that s 88 is concerned with whether an employee’s dismissal was harsh, unreasonable or unjust, that the Commission was required to have regard to the regulatory context, as the primary judge described it, of Mr Wattie’s employment.

The “regulatory context” was described by Legal Aid as comprising the GSE Act and the Legal Aid NSW Code of Conduct (“Code of Conduct”). I agree that in the present case the “regulatory context” as described by Legal Aid is a relevant consideration within the meaning of s 88(f) of the Act. Section 7 of the GSE Act is in these terms:

7 Government sector core values

The core values for the government sector and the principles that guide their implementation are as follows:

Integrity

(a) Consider people equally without prejudice or favour.

(b) Act professionally with honesty, consistency and impartiality.

(c) Take responsibility for situations, showing leadership and courage.

(d) Place the public interest over personal interest.

Trust

(a) Appreciate difference and welcome learning from others.

(b) Build relationships based on mutual respect.

(c) Uphold the law, institutions of government and democratic principles.

(d) Communicate intentions clearly and invite teamwork and collaboration.

(e) Provide apolitical and non-partisan advice.

Service

(a) Provide services fairly with a focus on customer needs.

(b) Be flexible, innovative and reliable in service delivery.

(c) Engage with the not-for-profit and business sectors to develop and implement service solutions.

(d) Focus on quality while maximising service delivery.

Accountability

(a) Recruit and promote employees on merit.

(b) Take responsibility for decisions and actions.

(c) Provide transparency to enable public scrutiny.

(d) Observe standards for safety.

(e) Be fiscally responsible and focus on efficient, effective and prudent use of resources.

Section 69 of the GSE Act relevantly provides as follows:

69 Misconduct - Public Service and other prescribed government sector employees

(1) In this section:

…

misconduct extends to the following:

…

(d) a conviction or finding of guilt for a serious offence.

The subject matter of any misconduct by an employee may relate to an incident or conduct that happened while the employee was not on duty or before his or her employment.

serious offence means an offence punishable by imprisonment for life or for 12 months or more (including an offence committed outside New South Wales that would be an offence so punishable if committed in New South Wales).

…

(3) The government sector employment rules may deal with the following:

(a) misconduct by employees of government sector agencies,

(b) the procedural requirements for dealing with allegations of misconduct by employees of government sector agencies (consistently with procedural fairness).

(4) If, in accordance with those rules, there is a finding of misconduct by an employee of a government sector agency, the person who exercises employer functions in relation to the employee may take any of the following actions:

(a) terminate the employment of the employee (without giving the employee an opportunity to resign),

(b) terminate the employment of the employee (after giving the employee an opportunity to resign),

(c) impose a fine on the employee (which may be deducted from the remuneration payable to the employee),

(d) reduce the remuneration payable to the employee,

(e) reduce the classification or grade of the employee,

(f) assign the employee to a different role,

(g) caution or reprimand the employee.

It is common ground between the parties that the “core values” in s 7 of the GSE Act are reflected in the Code of Conduct.

Submissions

The applicant

It was not in dispute that the finding of guilt against the applicant for a breach of s 59(1) of the Crimes Act was by definition a “serious offence” amounting to “misconduct” for the purposes of s 69(1) of the GSE Act. Mr Wright, who appeared for the applicant, conceded that the applicant was not alleging that his dismissal was unjust. Mr Wright stated:

“We accept, as I said before, that the termination meets the requirements of the GSE Act. There was serious misconduct, serious offence I think it was which constitutes misconduct and, for any misconduct under the GSE Act, termination is an allowable remedy. So, just accept that.”

(Tcpt p 63 lines 7-10)

Later Mr Wright stated:

“I’ll be making a submission that in this case the termination is not unjust, the determination is not unjust, but it is unreasonable and it is harsh. So I would be asking you to apply each of the trilogy separately and there’s no doubt that it’s not unjust in the terms of the reasoning in the cases cited by my opponent, in that there’s no doubt that the misconduct for which the person was terminated occurred. And all the legislative requirements are there, so in our submission it’s not an unjust termination and our submission is that it’s unreasonable in that the reasoning that led to the decision to terminate, as opposed to doing anything else, is flawed by this agency’s own view of itself as being totally dedicated to preventing domestic violence, whereas it is actually partially dedicated to preventing domestic violence.”

(Tcpt p 69 lines 6-17)

Mr Wright’s submissions on the unreasonableness of the dismissal may be summarised as follows:

Legal Aid had placed too much reliance on the existence of its domestic violence programs and had failed to view those programs in the context of its entire operations. In particular, it had failed to give proper weight to the fact that the applicant had little to do with Legal Aid’s domestic violence programs. This submission relied principally on the contention that the applicant’s duties in the Criminal Law Division had no, or no sufficient, connection with the domestic violence programs run by Legal Aid. It followed that on this basis there was an insufficient nexus between the applicant’s employment with Legal Aid and the District Court Decision. Legal Aid had overstated the risk of harm to its reputation if the applicant were not dismissed.

On the question of harshness Mr Wright’s submissions were confined to the proposition that there were alternatives to dismissal available to Legal Aid under the GSE Act, and one of those might have been more appropriate in the applicant’s circumstances. Mr Wright further submitted that weight should be given to:

the circumstances identified in the District Court Decision as mitigating the applicant’s conduct at the time of the incident; and the fact that the Law Society of New South Wales had declared the applicant to be a fit and proper person to hold a practising certificate.

Legal Aid

Legal Aid’s submissions may be summarised as follows:

The applicant’s conduct was misconduct within the meaning of s 69(1) of the GSE Act. As a consequence, Legal Aid was entitled to terminate the employment under s 69(4) of the GSE Act. The applicant was found guilty of disturbing conduct involving physical violence to his wife, in the presence of his daughter. The gravity of the conduct is something that the Commission needs to consider in weighing up the evidence. The applicant denies the conduct of which he has been found guilty. He is not a person who took responsibility for his actions. It is necessary for the Commission to consider the regulatory framework. The applicant’s conduct was inconsistent with the core values in s 7 of the GSE Act. It amounted to misconduct for the purposes of s 69(1) of the GSE Act. It was also inconsistent with the Code of Conduct. It is of no consequence that the applicant’s conduct occurred out of hours. The language of s 69(1) of the GSE Act anticipates that misconduct may relate to conduct occurring outside work hours and so a connection to the employment need not be made out. To the extent such a connection is necessary it is made out because of the extensive involvement of Legal Aid does in seeking to address domestic and family violence and the applicant’s senior role with Legal Aid. If one balances the mitigating factors in favour of the applicant against the nature and gravity of the applicant’s behaviour, the dismissal cannot be seen as harsh.

Consideration

The applicant conceded that the finding of guilt in the District Court Decision constituted misconduct for the purposes of the GSE Act and that the dismissal was not unjust. Based on the law and evidence I consider that these concessions were properly made. It follows that I need only determine whether the applicant’s dismissal was unreasonable or harsh or both. Before turning to that consideration, I observe that while the applicant submitted that there was an insufficient nexus between his position and the misconduct, this was not put on the basis of the misconduct having occurred outside of work hours. The applicant’s concessions that the applicant’s conduct constituted misconduct for the purposes of the GSE Act and that the dismissal was not unjust clearly suggest that this was not in dispute. However, while the issue was not directly raised by the applicant, I have taken into account the facts that the misconduct occurred out-of-hours and in the applicant’s then residence. I do not consider that these facts provide, or would have provided, any basis for the applicant to challenge the dismissal. The definition of “misconduct” in s 69(1) of the GSE Act expressly allows for it to include an incident or conduct that occurred while the employee was not on duty. Having regard to Hansen v Secretary of the Department of Transport – as head of the Transport Service and exercising the employer function of staff of Roads and Maritime Services [2016] NSWIRComm 1011, to which counsel for the respondent referred me, I find that there was no reason why the respondent was not entitled to rely on the applicant’s out-of-hours conduct for the purposes of the GSE Act.

Was the termination unreasonable?

The criminal conduct engaged in by the applicant was serious, both objectively and within the meaning of the GSE Act. It amounted to misconduct pursuant to s 69(1) of the GSE Act. The finding of misconduct exposed the applicant to disciplinary action under s 69(4) of the GSE Act, including termination of employment. Legal Aid contends that the applicant’s conduct was also in breach of his obligation under s 7 of the GSE Act to “uphold the law”, which was not disputed by the applicant. For the reasons set out below at [55] it could also be said that the applicant failed to “take responsibility for situations, showing leadership and courage”. As the core values in s 7 of the GSE Act are contained in the Code of Conduct, the applicant’s misconduct would also amount to a breach of the Code of Conduct. However, the applicant claimed not to have seen the Code of Conduct prior to the commencement of the disciplinary proceedings against him. In the absence of evidence to the contrary, I do not place particular weight on any breach of the Code of Conduct. The applicant’s submissions were to the effect that Legal Aid had placed undue reliance on its status as an advocate in promoting awareness and prevention of domestic violence, given that the applicant was not directly involved in Legal Aid’s domestic and family violence programs. The applicant gave evidence that the vast majority of his work for Legal Aid involved drug-related crime, including armed robbery, in the District Court. Evidence of Legal Aid’s investment and involvement in programs or initiatives to address domestic and family violence are contained in Tabs Q to AA in Exhibit 1 to Mr Nickols’ affidavit. The applicant did not challenge Mr Nickols’ evidence in this regard or adduce evidence in reply. In cross-examination the applicant acknowledged that he was aware, at least in part, of the work done by Legal Aid in the area of domestic and family violence. He had attended compulsory training in supporting clients who have experienced domestic violence, organised by Legal Aid. The applicant held a senior position with Legal Aid. His role required him to mentor staff within the Criminal Law Division. During the applicant’s cross-examination there was the following exchange:

Q. And so do you accept that Legal Aid regards itself and is in fact regarded by others as an advocate in promoting awareness and prevention of domestic violence?

A. Yes.

Q. And as an employee and indeed as a senior one, as you have rightly conceded, you had a role to play in the general work of Legal Aid, that is, in promoting awareness and prevention of domestic violence?

A. Yes.

(Tcpt p 11 lines 9-17)

Legal Aid relied on its letter to the applicant of 1 December 2017, reproduced in part at [4(21)] above, as setting out the basis for the termination of the applicant’s employment and the reasoning behind that decision. That letter made reference, amongst other things, to the need to uphold Legal Aid’s reputation and standing within the community and with its stakeholders. During Mr Wright’s cross-examination of Mr Nickols there occurred the following exchange:

Q. Right, so how is it relevant in deciding whether it was reasonable for your CEO to terminate my member that, and then your proposition was that it’s a problem for someone who defends perpetrators of domestic violence if they are actually guilty of domestic violence. How does that apply to someone who never defends people who are accused of domestic violence?

A. Yeah. I think it’s a matter of reputation. Mr Sandilands’ conduct brought Legal Aid into disrepute. This matter is a matter of public record, it was heard in the Penrith Local Court. Police, police prosecutors, court staff were aware of this matter. We have a local office in the Penrith jurisdiction, many of these people would have been aware of the nature of the offence and the fact that Mr Sandilands worked for Legal Aid. So there is that alone that you would retain an employee who has brought the organisation into disrepute for those reputational issues. That is where I think it is relevant.

(Tcpt p 58 lines 21-33)

Later in Mr Nickols’ cross-examination there was the following further exchange:

Q. Can you point to any - sorry, let’s return to your previous answer, where you stated, if I recall correctly, that the fact of continuing to have a person who had engaged in domestic violence would cause reputational damage to Legal Aid. Can you demonstrate any way that the reputational damage to Legal Aid would be more than the reputational damage to any other employer for having an employee who had been found to have committed domestic violence?

A. I can’t really speak about other employers. But Legal Aid banks its credibility with its stakeholders in relation to all of its Legal Aid work, it needs to be held in high regard and respected by not just only clients but a lot of community organisation groups that are run by volunteers. And many of those staff in those organisations tend to be - well, not “tend to be”, may well be victims themselves of domestic violence. The organisation’s credibility on all of these domestic violence initiatives depend on it having reputation and image that enhances its standing with those stakeholders. So, the standards to which its employees are held, all of its employees, is a relevant consideration.

(Tcpt p 60 lines 7-21)

Later again during Mr Nickols’ cross-examination, there was the following further exchange:

Q. Thank you. And you did state earlier that you thought it was a relevant consideration that nearly 80 per cent of your employees are female?

A. Yes.

Q. You’re not suggesting for a moment that my member will be committing violence on them, I hope?

A. Definitely not.

Q. So, why is that relevant?

A. As I said earlier, this matter is a matter of public record. We have an office in the Penrith locality, this matter was heard at the Penrith Local Court. Mr Sandilands, obviously, was absent from the workplace for a period of time and these things have a way of getting out and getting around. Staff are absolutely aware of this matter and certainly were at the time. His return would not go unnoticed and there’s a certain argument to be made there as to what does that say about the standards and decision making of the agency head when an employee can be found guilty of engaging in a serious act of violence, despite those fundamental conditions of employment which I cited earlier, that apply under the code of conduct. If they’re not to have the standing impact which I believe they’re intended, they’re essentially a dead letter and it sends the wrong message to the staff who will certainly be aware of Mr Sandilands’ departure and potential return.

Q. Have you asked the staff what they think about Mr Sandilands being terminated?

A. No, it wouldn’t be appropriate.

Q. Right, so you don’t really know what they think?

A. No.

Q. You’re merely speculating that they might think badly of the organisation?

A. Yes.

Q. So that’s not worth much, is it?

A. That’s your opinion.

(Tcpt p 61 line 43 – p 62 line 27)

Taking the evidence as a whole, I do not accept the applicant’s submission that, given that he worked only in the Criminal Law Division, there was an insufficient nexus between his employment and his misconduct. Focussing only on the work performed by the applicant in the Criminal Law Division ignores the broader organisational commitment that Legal Aid has to addressing domestic and family violence, as well as the applicant’s admitted responsibility, as a senior employee, to promote awareness and prevention of domestic violence. I am also satisfied that Legal Aid had a legitimate interest in protecting its reputation. The risks of damage to Legal Aid’s reputation were outlined in the letter from Legal Aid to the applicant dated 1 December 2017. These risks were highlighted in the evidence of Mr Nickols in cross-examination. In the context of Legal Aid’s organisation and activities, the applicant’s conduct had the potential to bring Legal Aid into disrepute given the disturbing criminal acts of which he was found guilty and the serious nature of the crime. I do not accept the applicant’s submissions that the risk of damage to Legal Aid’s reputation was overstated. In weighing all of these matters, the applicant’s dismissal was not unreasonable.

Was the dismissal harsh?

The approach to the assessment of whether or not a dismissal is harsh is set out in the following passages from the Full Bench decision in Department of Health v Perihan Kaplan [2010] NSWIRComm 65:

[26] One ground relied upon for this challenge was predicated upon a legal proposition that a dismissal which was based upon conduct by an employee, which constituted a breach of a fundamental and essential term of the contract of employment, “would necessarily not be harsh”. No authority was given in support of that proposition except for an authority which was said to demonstrate that, in the contemporary common law of employment, an implied term may be found in every employment contract that the employee owes the employer a duty not to act in a manner likely to destroy or seriously damage the relationship of trust and confidence between them: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2007) 69 NSWLR 198. The appellant's contention would appear to be that a finding of harshness under s 84(1) could not be made in circumstances where an employee had been lawfully dismissed for breach of such a term. It was also suggested that that approach was mandated because the employee's conduct in that context would be a repudiation of the contract.

[27] The difficulty with this approach, as opposed to one which would have the nature of an employee's misconduct weighed against mitigating factors to determine, inter alia, whether a dismissal was harsh, is that it stands in the face of the statutory scheme which requires the Commission to consider whether the dismissal was harsh, unreasonable or unjust. There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 at [99] ('Loty'), that the exercise of the Commission's powers in relation to unfair dismissals (now found in Part 6 of Ch 2 of the Act) requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though “it was perfectly legal” (Loty at 99). In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that “as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee”. To similar effect, a Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [71] ('Little') stated:

The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate “justification” in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act.

[28] This conclusion must also follow from the very meaning of the concept of "harshness" within s 84(1). The words "harsh, unreasonable or unjust" in s 84(1) are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at [467] ("Byrne"), per McHugh and Gummow JJ, (applying Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at [28]). The appellant's acceptance that the expression 'harsh' would bear the meaning "disproportionate to the gravity of the misconduct" (see Byrne at [465]), necessarily brings with it the conclusion that a breach of an employment contract or even a repudiation of it will not be determinative of a finding under s 84(1) of the Act as to whether the dismissal was harsh. So, too, does an acceptance (see Byrne at 465) that the personal circumstances of a dismissed employee may be also brought into account.

29 We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows:

In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence.

In Wattie McColl JA made the following observations:

[156] I have already referred to the tripartite test posed by s 84 of the IR Act as to whether an employee’s dismissal was “harsh, unreasonable or unjust” as explained in Byrne. In addition to the matters there identified, in considering the possibility that dismissal might be “harsh”, (although not unjust or unreasonable), it is necessary not only to identify any misconduct on the employee’s part said to have justified the termination, but also to “weigh in the balance any ‘mitigating circumstances’ … including length of prior employment, the employment record and favourable character considerations”. (Footnotes omitted)

In submitting that the dismissal was harsh Mr Wright pointed to the options that were available to Mr Thomas of the respondent under s 69(4) of the Act, and posed the question “was there another remedy that they could have taken that would have been appropriate in severity to the situation [?]” (Tcpt p 72 lines 15-16). Other than drawing attention to the existence of alternatives to dismissal, Mr Wright did not articulate precisely what alternative remedy would have been more suitable. The existence of alternatives to termination of employment will not of itself render a dismissal harsh. A person empowered to take action against an employee under s 69(4) of the GSE Act will always have the options set out in that section. The matter for consideration by the Commission is whether, with the option of termination having been taken, the dismissal was harsh. In this case the gravity of the misconduct is significant. It involved violence causing injury to the applicant’s estranged wife, at least partly in the presence of their daughter. The misconduct takes on additional significance in the context of:

the nature of Legal Aid’s work and workforce, and in particular Legal Aid’s role as “an advocate in promoting awareness and prevention of domestic violence”; the applicant’s senior role with Legal Aid; the obligations imposed on the applicant by the GSE Act; and the applicant’s responsibilities and accountabilities under the role description for his position as Solicitor Advocate, referred to at [4(4)] above.

I have also taken into account the documents at Tabs BB to MM of Exhibit 1 to Mr Nickols’ affidavit. These documents were tendered by Legal Aid to evidence a “whole of NSW Government” commitment to addressing domestic and family violence. This evidence was not significantly addressed in submissions, being referred to by Legal Aid as evidencing the “broader context” in which the applicant’s misconduct should be viewed. I have considered the evidence in that light but it has not had a significant impact on my decision. No submissions were led by Mr Wright as to mitigating circumstances that would weigh in favour of a finding of harshness. However, the following can be drawn from the evidence:

The applicant had worked for Legal Aid for 31 years. The applicant had a good working record. The applicant saw himself as continuing to work for Legal Aid, that being all he really wants to do. The applicant took a demotion in lieu of redundancy in 2017 as he wished to keep working for Legal Aid. The applicant is 63 years of age. The applicant has had difficulty finding alternative work. In the District Court Decision the applicant was described as “a man of exemplary good character” who, in a situation of great stress and strain responding to some physical provocation, lost control of himself relatively momentarily. The applicant’s good character is further attested to in the references, or testimonials, tendered on his behalf. The applicant provides financial support to his estranged wife and daughter, which he has to pay out of his savings (having had no income since his dismissal). The applicant has expressed his sincere regret for his actions on 13 June 2016 and claims to be very much ashamed of what he did.

The applicant’s expressions of remorse are somewhat called into question by his persistent denial of having committed the acts of which he was found guilty in the District Court Decision. He pleaded not guilty to the Charge. When he was convicted in the Penrith Local Court he immediately appealed to the District Court, maintaining his innocence of the acts alleged against him. In cross-examination in these proceedings the applicant repeated his denial of having hit his estranged wife in the face or placing his hands around her throat and, in effect, choking her. Although later in cross-examination the applicant said that he “had to accept” the District Court Decision, this seemed far less than an acknowledgment of wrongdoing or responsibility, but rather an acceptance of the situation in which he found himself. I have considered the District Court Decision and the circumstances identified by his Honour Judge Buscombe as mitigating the applicant’s conduct at the time of the incident on 13 June 2016. In my view, this evidence does not greatly assist the applicant. Although his Honour accepted that the applicant had responded to some physical provocation, he found that response not to have been reasonable. He did not accept the applicant’s version of events, preferring the evidence of the applicant’s estranged wife and their daughter. He found the applicant guilty of the Charge. Ultimately, it was the fact of that finding of guilt that resulted in the applicant’s dismissal. In relying on mitigating factors in existence at the time of the crime the applicant somewhat misses that point. The applicant’s claim that he will not re-offend and, to some extent, the references on which he relies fall into a similar category. I have taken into consideration the evidence that the Law Society of New South Wales has declared the applicant to be a fit and proper person to hold a practising certificate. In my view, the decision of the Law Society has little bearing on the question of whether the applicant’s dismissal was harsh. In weighing all of these matters, the applicant’s dismissal was not harsh.

Conclusion

For the reasons set out above I find that the applicant has not discharged his onus to persuade the Commission that his dismissal was harsh, unreasonable or unjust.

Order

I order that the application be dismissed.

Damian Sloan

Commissioner

**********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.