APPEAL AGAINST THE DECISION OF THE EMPLOYER TAKEN ON 7 FEBRUARY 2023

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00773

DELIVERED :  FRIDAY, 16 AUGUST 2024

FILE NO. : PSAB 18 OF 2023

Appellant

AND

Director General, Department of Justice

Respondent

CatchWords : Appeal of decision to terminate probationary employment and application to appeal out of time – whether employee has an arguable case to warrant an extension of time – principles of probationary employment – whether employer’s concerns were genuinely held and whether their right to terminate the probationary employment was not misused or abused – whether employee was adequately informed they were not meeting the required standards and whether they received support and training to enable them to perform satisfactorily

Legislation : Industrial Relations Act 1979 (WA) ss 80C(1), 80I(1)(d)

   Industrial Relations Commission Regulations 2005 (WA) reg 107(2)

  Public Sector Management Act 1994 (WA) s 64(1)(a)

Result : Application for an extension of time to appeal dismissed. Appeal dismissed.                             

Representation:

Appellant : Mr M Lawn (on his own behalf)

Respondent : Ms I Inkster (of counsel)

Cases referred to in reasons:

Crabtree v Director General, Department of Education [2021] WAIRC 00538

Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728

Nicholas v Department of Education and Training [2008] WAIRC 01645

Reasons for Decision

Background

1         The appellant (Mr Lawn) was appointed as a Level 2 Community Work Officer on 22 August 2022, pursuant to a Letter of Offer dated 2 August 2022 (Contract).

2         The Contract specifies the following:

(a)  Mr Lawn’s appointment is made under s 64(1)(a) of the Public Sector Management Act 1994 (WA) (PSM Act);

(b)  Mr Lawn’s conditions of employment are governed by the Public Sector CSA Agreement 2021 (Agreement) and the Public Sector Award 1992 (Award);

(c) Mr Lawn’s appointment is subject to a six month probationary period in accordance with cl 8(1) of the Award;

(d) Either party may terminate the Contract during the probationary period by giving one week’s notice, or by the employer paying in lieu of notice.

3         On 7 February 2023, the respondent annulled Mr Lawn’s appointment during the probationary period, providing one week’s pay in lieu of notice.

4         Mr Lawn contests the dismissal on the grounds of substantive and procedural fairness.

The Board’s jurisdiction

5         Mr Lawn is a ‘public service officer’ pursuant to s 64(1)(a) of the PSM Act and therefore a ‘government officer’ pursuant to s 80C(1) of the Industrial Relations Act 1979 (WA) (IR Act). There is no dispute that by s 80I(1)(d) of the IR Act, the Public Service Appeal Board (Board) has jurisdiction to hear the appeal of Mr Lawn’s dismissal.

6         Pursuant to regulation 107(2) of the Industrial Relations Commission Regulations 2005 (WA), Mr Lawn’s appeal was required to be filed by 28 February 2023. The appeal was filed on 28 June 2023. Consequently, the Board directed that Mr Lawn’s out of time application be heard concurrently with his appeal.

The application to appeal out of time

7         In Nicholas v Department of Education and Training [2008] WAIRC 01645, the Public Service Appeal Board identified the following four key considerations relevant to its determination of an application to extend the time in which to appeal:

(a) the length of the delay;

(b) the reason for the delay;

(c) whether the appellant has an arguable case; and

(d) any prejudice to the respondent if the application were granted.

8         Mr Lawn’s appeal was filed four months late. Mr Lawn attributes the delay to researching his options for challenging the dismissal, believing he had 21 days to file an application, and submitting an application to the wrong jurisdiction on the 20th day. Mr Lawn says that he submitted two applications, both in the wrong jurisdiction, before eventually filing the appeal.

9         The respondent’s records indicate that Mr Lawn filed a Form 5 – Referral of a matter under the Public Sector Management Act 1994 under s 79 of the PSM Act (Form 5) on 5 April 2023, which is approximately one month after the deadline to appeal the dismissal decision.

10      The respondent contends that, despite Mr Lawn’s claim of an earlier application, the Board cannot be satisfied that Mr Lawn filed any application prior to filing the Form 5, as no documents have been produced to corroborate his oral testimony.

11      The respondent submits that granting an extension of time is a discretionary decision, with Mr Lawn having the onus to establish that the discretion should be exercised in his favour. The respondent does not claim any prejudice if the application were to be granted. However, the respondent submits that the discretion to grant an extension of time should only be exercised if strict compliance with the time requirements would result in an injustice and, in this case, no injustice would be caused. This is because, given the general principles of law governing probationary employment, Mr Lawn does not have an arguable case.

12      Following the hearing, the Board reviewed the Commission’s records for applications submitted by Mr Lawn. This review indicated that:

(a) On 7 March 2023, Mr Lawn submitted a Form 2 – Unfair Dismissal Application (Form 2).

(b) On 8 March 2023, the Commission’s Registry notified Mr Lawn that the Commission can only deal with Form 2s from certain private sector employees, and that claims by government employees are dealt with using alternate applications. The Registry provided Mr Lawn with links to the ‘Claims by government officers’ and ‘Lodge a New Form’ pages of the Commission’s website. The Registry sent follow up emails to Mr Lawn regarding the Commission’s jurisdiction on 16, 20 and 27 March 2023. On 28 March 2023, Mr Lawn responded to the Registry’s emails to advise that he no longer wished to proceed with the Form 2.

(c) On 14 March 2023, Mr Lawn submitted a Form 5 to the Commission’s Registry. Mr Lawn subsequently requested the lodgement of the Form 5 be suspended so that he could make amendments to it. On 31 March 2023, Mr Lawn re-submitted the Form 5. Due to deficiencies relating to the proposed attachments to the Form 5, it was not accepted for filing until Mr Lawn responded to the Registry’s email and telephone calls requesting him to address the deficiencies. On 5 April 2023 at 3:43pm, Mr Lawn telephoned the Registry to address the deficiencies, and the Form 5 was accepted for filing as at that time.

(d) On 18 April 2023, the respondent filed a Response to the Form 5, objecting to the Commission’s jurisdiction and stating that as Mr Lawn was a government officer, his only right of appeal against his dismissal is to the Public Service Appeal Board.

(e) On 20 June 2023, Mr Lawn notified the Commission that he sought to withdraw the Form 5 and proceed with filing an appeal to the Public Service Appeal Board.

(f) On 28 June 2023, Mr Lawn filed the appeal.

13      In light of the matters at [12], Chambers wrote to the respondent to enquire whether they seek leave to amend their submissions regarding Mr Lawn’s application to appeal out of time. The respondent did not seek leave to amend their submissions, acknowledged that Mr Lawn’s first application, the Form 2, was filed within the 28‑day period that applies to a Form 2, and maintained their submissions regarding both the overarching delay until the filing of the appeal and the merits of the appeal.

14      The Board accepts the respondent’s submissions regarding the overarching delay. The Board’s review of the Commission’s records indicates that despite being notified of the jurisdictional issues with both the Form 2 and Form 5, Mr Lawn did not file the appeal until 28 June 2023. Mr Lawn’s delay in remedying the jurisdictional issue first raised with him on 8 March 2023 has not been adequately explained.

15      The Board also accepts the respondent’s submissions regarding the merits of the appeal for the reasons that follow.

Legal principles and issues for determination

16      The appeal involves the review of the dismissal de novo. Accordingly, any procedural fairness issues are able to be cured in the disposition of the appeal by the Board: Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728. Further, the Board is to consider the appeal based on the evidence before it and is not constrained to determining whether the respondent made the right decision on the evidence available at the time of the dismissal.

17      The implications of probationary employment are settled, as stated in Crabtree v Director General, Department of Education [2021] WAIRC 00538 (Crabtree) [30] as follows:

In industrial law, the implications of probationary employment are clear. They were explained by the Full Bench of the Western Australian Industrial Relations Commission in East Kimberley Aboriginal Medical Service v The Australian Nursing Federation, Industrial Union of Workers Perth [2000] WAIRC 00067; (2000) 80 WAIG 3155. At [49], the Full Bench said:

 … the following principles apply—

(a) The employer, throughout the period of probation, retains the right to see whether he/she wants the employee or not in his/her employment.

(b) (i) The employer is entitled to consider the employee as if the employee was still at first interview with the following modifications in this case.

(ii) There was an identifiable contract of employment for a period, indeed, a fixed term, including a period of probation of three months. This advances the matter beyond a notional first interview situation.

(c) Probation is an extension of the selection process, a period of learning and a time for attention, assessment and adjustment to standards of performance and conduct. (Inherent in that is that it is a time for teaching, training and counselling.)

(d)  (i) However, a probationary employee knows that he/she is on trial and that he/she must establish his/her suitability for the post. The employer, on his side, must give the employee a proper opportunity to prove him/herself, but he/she reserves the right to determine the employment with appropriate notice provided he has reason for so doing (see Sommerville v Brinzz Pty Ltd Clerk Vehicle Repair Industry [1994] SAIRComm 8 (31 January 1994), citing Re J M Hamblin v London Borough of Ealing (1975) IRLR 354 and see Hutchinson v Cable Sands (WA) Pty Ltd (FB)(op cit)).

(ii) Further, an employee on probation can expect to be counselled and informed that she/he is not meeting the required standards of performance, to be given reasonable training in this respect, and to be warned of the possible consequences of a failure to improve. Provided this is done, an employee who is on probation would have little cause to complain if a decision was taken during the course of or at the end of a probationary period to terminate the employment (see Sommerville v Brinzz Clerk Vehicle Repair Industry (op cit), citing Hull v F F Seeley Nominees Pty Ltd (1988) 55 SAIR 550 at 562).

(e) (i) Consonant with those principles, a probationary employee is able to seek reinstatement, but an employer is entitled to terminate a probationary employee more easily, e.g length of service is not a factor generally, because probationary employment is for a finite period and, in that period, assessment, training and acquisition of skills and demonstration of ability can occur. In addition, any genuine question of compatibility between employer, employee and other employees can be assessed. (This is not a comprehensive inventory of such matters.)

(ii) However, probation is not a licence for harsh, oppressive, capricious, arbitrary or unfair treatment of a probationer (see Hutchinson v Cable Sands (WA) Pty Ltd (FB)(op cit) and the cases cited therein).

18      In determining the appeal, the Board may legitimately have regard to, and place weight upon, the respondent’s subjective view of Mr Lawn’s suitability for ongoing employment: Crabtree [32]. The decision to terminate Mr Lawn’s probationary employment would be consistent with the purpose and principles of probationary employment where: Crabtree [33]:

(a) The concerns raised against Mr Lawn were genuinely held;

(b) The respondent’s right to terminate Mr Lawn’s employment during the probationary period was not misused or abused;

(c) Mr Lawn was adequately informed he was not meeting the required standards, including the consequences of a failure to improve; and

(d) Mr Lawn received adequate support and training to enable him to perform satisfactorily.

The evidence

19      On 23 October 2023, the parties filed a Statement of Agreed Facts, stating:

The parties agree as follows:

1. [Mr Lawn] was appointed on 22 August 2022 under s 64(1)(a) of the [PSM Act] as a level 2 Community Work Officer (CWO) pursuant to [the Contract]: Agreed Document 1.

2. [Mr Lawn’s] employment was governed by the [Agreement] and the [Award].

3.  [Mr Lawn] was required to:

(a) perform all duties to the best of his ability at all times;

(b) use his best endeavours to promote and protect the interests of the employer (i.e. the Respondent);

(c) conduct himself in accordance with the Department of Justice’s Code of Conduct and the Public Sector Code of Ethics, as amended from time to time.

(d) follow all reasonable and lawful directions given to him by the employer, including complying with the policies and procedures as amended from time to time.

4. Pursuant to cl 8(1) of the [Award], and cl 5 of [the] Contract, [Mr Lawn’s] permanent appointment was subject to a six month probation period. [Mr Lawn’s] probation period was due to expire on 22 February 2023.

5. On 12 September 2022 [Mr Lawn] commenced at the South Hedland Office of the Pilbara Youth Justice Services (PYJS).

6. On 14 September 2022 [Mr Lawn] met with Ione Griffiths (Manager) and Emma Anderson (Team Leader) to discuss the parameters of his role and the possibility of [Mr Lawn] working a second job as a residential care worker for the Department of Communities. [Mr Lawn] was advised to submit a conflict of interest form if he did wish to pursue secondary employment.

7. On 20 September 2022 [Mr Lawn] attended induction with Acting Senior Community Work Officer Shannon Moxham.

8. On the morning of 21 September 2022 [Mr Lawn] was absent from the South Hedland Office.

9. On 28 November 2022, [Mr Lawn] asked to speak with Child Protection and Support Officer (CPFSO) [Lucy] McKnight alone. [Mr Lawn] and Ms McKnight had a conversation in a small room together.

10. On 6 December 2022, [Mr Lawn] called Ms Griffiths and spoke to her for approximately 45 minutes about his interactions with other staff members.

11. On 7 December 2022, Ms Griffiths met with [Mr Lawn] to discuss the complaints made about him.

12. In the early morning of 12 December 2022, [Mr Lawn] attended the Office. Ms Griffiths asked [Mr Lawn] to head home. During a later phone call between Ms Griffiths and [Mr Lawn], he was advised not to return to work until further notice.

13. On 20 January 2023, an officer of the Respondent wrote to [Mr Lawn] detailing concerns the Respondent had regarding [Mr Lawn’s] suitability: Agreed Document 2.

14. On 30 January 2023, [Mr Lawn] provided a written response to the Respondent’s suitability concerns: Agreed Document 3.

15. On 9 February 2023, [Mr Lawn] received correspondence from the Respondent which confirmed that his appointment was being annulled immediately: Agreed Document 4.

20      On 23 October 2023, Mr Lawn filed outlines of evidence for his wife, Jacqueline Lawn, and for Laurie Fletcher. The respondent did not seek to cross-examine Mrs Lawn or Ms Fletcher as the respondent did not consider their evidence to be pertinent to the appeal. The respondent was content for their outlines of evidence being tendered without the need for them to attend the hearing.

21      The outline of evidence for Mrs Lawn refers to her and Mr Lawn attending the gathering of Department of Communities and Department of Justice personnel at Stacey Peterson’s birthday event on Saturday 26 November 2022 and how Ms Peterson welcomed them, and to the content of their conversation with Emma Anderson and Lucy McKnight at that event.

22      The outline of evidence for Ms Fletcher refers to a telephone call she received from Mr Lawn on 21 September 2022. Ms Fletcher recalls that, during this telephone call, Mr Lawn spoke of a conversation he had with Emma Anderson and Shannon Moxham where it was stated that Mr Lawn had chosen the wrong career. The outline of evidence refers to Mr Lawn stating to Ms Fletcher that he did not appreciate the comment and would address it with his manager, Ms Griffiths.

23      The Board agrees with the respondent’s submissions that the evidence of Mrs Lawn and Ms Fletcher are not pertinent to the Board’s disposition of the appeal, for the following reasons:

(a) The evidence of Mrs Lawn may corroborate Mr Lawn’s evidence regarding his exchanges with Ms Peterson, Ms Anderson and Ms McKnight at Ms Peterson’s birthday event as outlined in Agreed Document 3. However, there is no dispute regarding these exchanges. This is because the appeal concerns Mr Lawn’s workplace conduct and does not concern these out-of-work exchanges, such that no corroborating evidence of these out-of-work exchanges is required. Furthermore, if Mr Lawn seeks to place reliance on these out-of-work exchanges in addressing his workplace conduct, he can do so directly in this appeal.

(b) The evidence of Ms Fletcher may corroborate Mr Lawn’s evidence regarding the ‘occasion that I mentioned to Ione that I wanted to resign was due to the fact that my team leader said publicly in an audience during a discussion with other people that “I may have chosen the wrong career” which I personally disagree with’ as outlined in Agreed Document 3. However, there is no dispute regarding Mr Lawn’s belief that this statement was made, or that he raised it with Ms Griffiths (Agreed Document 3 states it was raised on 22 September 2022), such that no corroborating evidence of either Mr Lawn’s belief or of the discussion with Ms Griffiths is required. Furthermore, if Mr Lawn seeks to place reliance on the discussion on 22 September 2022 in addressing his workplace conduct, he can do so directly in this appeal.

24      On 7 November 2023, Mr Lawn filed an outline of the evidence he would give at the hearing. Attached to the outline were letters of support from:

(a) Faraday Boydell, formerly the manager of Spinifex Hill Studio in South Hedland;

(b) Father Gasper Mushi; and

(c) Timothy Turner, Deputy Mayor of the Town of Port Hedland.

25      Mr Lawn also attached to his outline an email from Donna Jasper to Peter Fleming (Senior Investigator), dated 1 February 2023, stating:

Good Morning Peter

I feel that it is important to make comment on the email trail pertaining to ‘I believe that Ms Jasper was not intimidated by him but his behaviour but he may have acted inappropriately asking her if she had a problem with him.’

As I am the only person besides Mr Lawn that was part of the conversation and therefore I am the only one who can comment on the appropriateness of his actions.

I appreciated that Mr Lawn brought the matter up with me and that he and I were able to resolve it by having an open and honest conversation. I thanked him for speaking to me because I can be abrupt at times. Too often in workplace environments we are quick to make judgements and assumptions of others and their manner. When this is then discussed with other people in the office it can lead to a negative culture which can be detrimental to the work environment and especially to the worker involved.

I hope that you consider my interaction with Mr Lawn was VERY positive and not negative in any way as part of your investigation. If I was to give a statement it would be in favour of Mr Lawn and his actions. We should be able to work in a place where we feel emotionally safe and comfortable to express our feelings and discomfort without being humiliated.

I have felt some pressure to make a statement regarding this matter and it has not sat comfortably with me.

Thank you for [your] time to consider my position on this matter further.

Warmest regards

Donna Jasper

26      On 21 November 2023, the respondent filed a bundle of documents, comprising of the following documents:

27      Agreed Document 2 is the respondent’s letter to Mr Lawn, dated 20 January 2023, in which the respondent raises 10 grounds for concern about Mr Lawn’s suitability to continue in employment, relating to an alleged pattern of inappropriate behaviour that, if substantiated, breaches the Department’s Code of Conduct in relation to personal behaviour.

28      Agreed Document 3 is Mr Lawn’s written response, dated 30 January 2023, to the 10 grounds for concern.

Ground for concern 1

29      Ground 1 states:

On 20 September 2022, within a month of starting your employment, during a meeting to discuss your recent employee induction with a Senior Youth Justice Officer (SYJO), you became physically and verbally agitated, stating that you had received conflicting information about the role, commenting that you were not being trusted by management and saying you were unhappy that you were not permitted to go fishing with young persons (clients) or pick them up from their homes. You were dismissive of the information provided to you and aggressive in your demeanour towards the SYJO.

30      In Agreed Document 3, Mr Lawn responds to Ground 1 by stating the following:

From the very beginning - On the actual interview panel that was conducted with myself and two people from DOJ and one person from Dept of Communities, I was informed by the Team Leader whom works directly with the regional manager in the same office and at the time was responsible for both regions Karratha and South Hedland, along with the Community Work officer where it was stated ‘usually there is not enough work hours during the day and afterwards just take them fishing’

It was also stated to myself from the regional manager that it would be necessary for myself to collect the young people from their residential houses which was understood to be due to their lack of transport and other motivational issues.

Information given to myself at the Karratha branch from the team leader who interviewed myself who was at the time responsible for both districts and the regional manager who is in charge of the Pilbara District.

I only had knowledge of information passed onto myself to elaborate with.

The Team Leader had stated that she is not aware of this information as she was not on the panel and was not around at the time it was stated to myself and would be using her own protocol.

I can clarify again the information I elaborated on was that of what I was told before [I] started and also at the time I started.

31      At the hearing, Mr Lawn addressed Ground 1 as follows (ts 11–17):

(a) The SYJO is Shannon Moxham. He agreed there was a discussion with Mr Moxham on 20 September 2022 about whether or not he could take young people fishing and pick them up from their homes.

(b) He denied he was unhappy that what he was told during the interview (that he is allowed to go fishing) was not passed on to Mr Moxham and stated that he was confused and baffled that the information was not passed on to Mr Moxham.

(c) He provided another example of the Regional Manager, Ms Griffiths, having approved the finance for and approval of all of his work clothing, and Mr Moxham saying that he could not wear shorts, as information not being passed on to Mr Moxham, which left him feeling ‘at a loss’.

(d) He denied he was aggressive in his demeanour or upset during the discussion and stated that he and Mr Moxham were both repetitive in talking about the information.

(e) He denied he was physically and verbally agitated during the discussion and stated that he may have been tired, the discussion may have been long‑winded, but there was no agitation. He stated that he and Mr Moxham were ‘discussing things [and] throwing things back and forwards between us’.

(f) He stated that his emotions at the time were that of disbelief that Mr Moxham was uninformed of the information that was conveyed to him (that he was allowed to take clients fishing) during his induction in the Karratha office. He felt helpless. He felt underutilised. He also believed his Supervisor, Emma Anderson, was not utilising the fishing program and did not think highly of going near the water because of her own beliefs about safety.

32      Under cross-examination, Mr Lawn (ts 46–47):

(a) Accepted that he signed the Statement of Agreed Facts stating that he commenced at the South Hedland Office on 12 September 2022 and attended an induction with Mr Moxham on 20 September 2022. However, he denied that he saw Mr Moxham eight days after commencing at the South Hedland Office. Mr Lawn says he ‘did not see Shannon for quite some substantial time after I started’, ‘it took quite some time for Shannon to arrive’, ‘at first, I went with three months, because I was there almost five months. And I spent a considerable time in the office without being to enact my role. And … that’s a very good guide. I can’t give you that date, … when Shannon came along, but … I spent a considerable time without being inducted’.

(b) Agreed that he had a discussion with Mr Moxham after the induction (about being able to go fishing with young people or being able to pick them up from their homes) and that Ms Anderson was involved in that discussion.

(c) Agreed that he felt that he had received conflicting information about his role.

(d) Denied that the Hedland team, including Ms Anderson, were wrong about the parameters of his role. He said that they had not been informed about the parameters of his role.

(e) Agreed that he tried to explain to the Hedland team his understanding about his role and how that differed to their understanding of his role. He said that he had explained, on two prior occasions, that he could go fishing and could pick up young people from their homes. He agreed he tried to explain that to Ms Anderson and Mr Moxham. He denied he tried to explain it to them repeatedly but agreed that it was a long-winded conversation.

Ground for concern 2

33      Ground 2 states:

On 28 November 2022, you approached a Child Protection Family Services Officer (CPFSO), who was not an employee of the Department. You asked to speak with her alone, which she did. You said words to the effect, ‘Do you have a problem with me? You always look at me funny and pull faces’. Your behaviour was intimidating and caused the CPFSO to become distressed and concerned for her safety.

34      In Agreed Document 3, Mr Lawn responds to Ground 2 by providing the background of his invitation to Stacey Peterson’s birthday event and of the half‑hour conversation that he and his wife had at the event (held at a pub on Saturday 26 November 2022) with Emma Anderson and Lucy McKnight, and stating the following: (original emphasis)

In the afternoon I was walking through the office, and Lucy had just walked in with another staff member (Ciara) it was late in the afternoon at 1500 hours Lucy noticed me and appeared to falter, Lucy said good morning oh good afternoon I hope you have a good rest of the day.

After speaking to her the previous night, I felt that I could communicate to Lucy about this awkwardness I appeared to notice.

I asked Lucy if I could speak with her. Lucy gave me Her consent by saying yes.

I apologised to Lucy for the small Proximity of the room I began and started with we can just say morning if she wishes and have a professional level relationship or greet with good morning an how are you which can incite a more authentic relationship but I wasn’t going to sit in the middle as I knew I did not want to be false and or pretend and I stated her body language appears awkward. Referring to when she said good morning good afternoon as Lucy appeared [off] balance and faltering.

Lucy responded by saying Oh sorry I didn’t know and walked out

The conversation was over

I did not know or realise and was not informed till much later that Lucy had gone back to her desk and cried. It was at the meeting on point 8 Dec 7th that I was informed of Lucy’s feelings. After walking off during the discussion, Lucy did not indicate anything else, If this was evident at the time I would certainly make it clear that I wished the latter idea of an authentic relationship be known. As Lucy always made an effort to say hello and good morning to Nathan who sat across from me as well as communicate frequently with my Team Leader who also sat across from myself and discuss her personal life regarding relationships. …

The next morning 29th Stacey walked through the rear office door and said Morning. I knew it was Stacey from the sound of her voice but did not know whom she was greeting so I said morning back.

Stacy spoke quick and in a low tone and all I heard was ‘body language’ which I noticed to myself this is something I had mentioned to Lucy the day before.

35      At the hearing, Mr Lawn addressed Ground 2 as follows (ts 17–21):

(a) Because he and Ms McKnight had conversed over the weekend, he thought they ‘had a good stance in able to have a … fruitful conversation’, however, when their paths crossed on the Monday, she ‘barely spoke to me at all’. He thought that when Ms McKnight said, ‘Good morning’ when their paths crossed at 3pm and then corrected herself to say ‘Good afternoon’ that she ‘seemed taken back’ when she saw him. He was concerned with ‘the way she faltered’ and with ‘the expression on her face’. Ms McKnight was walking along with another person, engrossed, and his presence was noted ‘like, maybe as an obstacle’, and ‘her head sort of [moved] sharply’. He felt ‘she could be a little more relaxed with herself’ if she sees him. Hence, he asked to speak with her to ‘to see if things could get simpler’.

 (b) He asked Ms McKnight if they could speak, to which she consented. They walked over to a conference room, which felt ‘quite cramped’. It was a small room, with no chairs leaving them both standing, so he apologised to Ms McKnight for the proximity. If there was a bigger room, and they could sit down and be across a table ‘that might’ve been a better scenario. But it just felt a little bit awkward’.

(c) He asked Ms McKnight if they ‘might have a more authentic and genuine relationship’, but if she chose not to then ‘the everyday “Good morning” would suffice’, because:

I didn’t want to have that small talk. I didn’t want to have it in – in between. It was just a professional ‘Good morning. How are you going?’ Or if – if you wanted, ah, ‘Hi, how are you? How was your weekend?’ But I didn’t want to sort of pretend in the middle, because, ah – yeah. Ah, and Ms McKnight, ah, stated she didn’t think she was, ah, um, not acknowledging me or avoiding me, ah, and said ‘Sorry’ and walked out the room.

(d) He was surprised to hear subsequently that Ms McKnight was upset by their conversation because she appeared to him to be non-emotional during the conversation, and had ‘shut the conversation down pretty much straight away, saying, “Oh, I’m sorry, I – I didn’t know it looked like that”, and walked out’.

(e) He acknowledged that while he did not know at the time that Ms McKnight had returned to her desk and cried, he was subsequently made aware of this, but he did not address the genuineness of Ms McKnight’s reaction in Agreed Document 3. This is because he ‘had some kind of doubt in my mind as well of the – the genuineness of it’. His doubt arises from Ms McKnight being close with his Supervisor, who had said to him that he may have chosen the wrong career. He subsequently raised this comment during a videoconference with the Regional Manager whilst his Supervisor was sitting next to him. He had ‘basically blindsided’ his Supervisor, and during the videoconference she denied having made this comment to the Regional Manager. He believes that from that day on, his standing ‘was not very good with my Supervisor’ and ‘it is a well‑known fact that Ms McKnight and my Supervisor, Emma are closely associated and do … things out of hours … as well as during hours’. It was his Supervisor who had asked if Ms McKnight had wanted to make a statement about his conversation with her, and while Ms McKnight initially did not want to, she ended up doing so.

36      Under cross-examination, Mr Lawn (ts 48):

(a) Agreed he asked to speak with Ms McKnight privately, but denied this was because he had a problem with the way that Ms McKnight had interacted with him. He asked to speak to Ms McKnight because he felt they ‘could achieve a … more … beneficial relationship. I didn’t have a problem. I just wanted things to be … in a better way’. By ‘better way’, he means an improvement in ‘the way we greet each other’. He denied the ‘situation’ between him and Ms McKnight could be ‘improved or fixed’ and said the ‘topic or a situation’ between him and Ms McKnight could be improved.

(b) Accepted that Ms McKnight’s demeanour towards him changed after their conversation.

Ground for concern 3

37      Ground 3 states:

On 29 November 2022, you approached a second CPFSO who was not an employee of the Department. You questioned support and strategies for engaging with a mutual client. As you spoke with the CPFSO you invaded her personal space and spoke to her in a manner that caused her to feel intimidated.

38      In Agreed Document 3, Mr Lawn responds to Ground 3 by stating the following:

On the day I was scheduled to work with client Roadie, Stacy engaged my self and called out to me and asked me to let her know how roadie went on community work, as I work from the next lot of partitions over. I called out and asked ‘do you work with him?’ Stacy replied I’m his case manager

So not to keep calling out aloud, I approached Stacy in front of other numerous people who were working relatively close in their own partitions, while Stacy was standing at her station, and talked about Roadie i also enquired about his talents and his motivations thinking I may be able to build on them through programs that are actioned within his community work which is my role. Part of the outcome in my role as CWO is to develop or practice skills within young people which is a relatively person centred practice. …

39      At the hearing, Mr Lawn addressed Ground 3 as follows (ts 22–26):

(a) He had mentioned Roadie’s name, and Ms Peterson said that she was his case manager. So, he walked over to Ms Peterson’s cubicle, which she shared with another person, to learn more about Roadie, to help align what Roadie enjoyed or was good at with Roadie’s community work.

(b) He was baffled by Ground 3 because he did not speak with Ms Peterson in a bad tone or manner and he did not invade her personal space. He simply walked over to Ms Peterson and had a conversation with her. He sincerely doubts that he invaded Ms Peterson’s personal space and spoke to her in a manner that caused her to feel intimidated. All he did was ask about Roadie. He does not know what he could have said in a conversation about Roadie to make Ms Peterson feel intimidated.

(c) He has doubts about the genuineness of Ground 3 because Ms Peterson did not make a formal complaint about him. He also thinks that Ms Peterson’s allegations are not genuine and have arisen because she was upset by hearing that he had allegedly mistreated Ms McKnight.

(d) Because of his warm interactions with Ms Peterson at the pub at her birthday event, he felt he was in a good place with Ms Peterson when he greeted her ‘Hello … Stacey’ the morning after his conversation with Ms McKnight (Ground 2). But all he heard was ‘body language’. The only person that he said ‘body language’ to was Ms McKnight. Ms McKnight and Ms Peterson are of similar age, have similar likes, and go out and meet up with each other. He thinks that Ms McKnight spoke about their conversation either directly with Ms Peterson or with someone else who relayed the conversation to Ms Peterson.

40      Under cross-examination, Mr Lawn (ts 48):

(a) Agreed that Ms Peterson had approached him quite familiarly out‑of-work hours.

(b) Said, in response to a question about Ms Peterson’s approach to him in the workplace being different, that Ms Peterson did not physically approach him in the workplace rather he went over to her.

(c) Denied that he had a discussion with Ms Peterson about her demeanour.

Ground for concern 4

41      Ground 4 states:

In November 2022, you approached a third CPFSO who is not an employee of the Department. You asked her if she had a problem with you. The CPFSO was concerned that there was an emerging pattern of your behaviour towards female Child Protection Family Services staff. Your behaviour was inappropriate.

42      In Agreed Document 3, Mr Lawn responds to Ground 4 by stating the following:

The situation in question happened sometime before the 29th of November. The person was generally friendly up until a certain point of time. We coincidentally went to the staff room at a similar time in the morning at start and at morning tea.

The persons gestures appeared curt and accompanied noises of sighs, engagement was very minimal than previous history. the scenario appeared to repeat in different circumstances.

When the person went to the fridge to get milk where I also was standing mixing my coffee the person glanced sideways at myself and sighed.

I asked the person have I done anything to upset you. The person said oh no why would you say that, I explained you seem very short with me nowadays. The person said that yes she was not feeling right due to [personal circumstances]. So I’ve had a very rough time but it has nothing to do with you though I am glad that you are able to approach me and ask me. This same scenario was handed over to me in my meeting from Ione. Ione stating that Emma had advised her of this. I asked Ione did Emma bother to include that The person in question stated that she was glad that I could communicate this with her. Ione shook her head and said no. …

43      At the hearing, Mr Lawn addressed Ground 4 as follows (ts 26):

(a) He was in the staff room and noticed that Donna Jasper appeared ‘a little bit closed off. Her demeanour was a little bit different towards her normal, happy, jovial talking self’, so he asked Ms Jasper if he had done something to upset her. She went on to share information about herself and was happy that they had a productive conversation.

(b) He knows Ms Jasper was happy about their conversation because of Ms Jasper’s letter (at [25] above) in which she stated words to the effect that she was glad the conversation occurred and that people should be free to have conversations and show their emotions in a workplace.

Ground for concern 5

44      Ground 5 states:

On 6 December 2022, You were informed by a SYJO that you were not permitted to invite a particular young person (client) to a barbeque program. You argued and spoke aggressively with her, despite her being the client’s designated case manager. You circumvented the SYJO when you approached the Child Protection Family Services (CPFS) Team Leader, who is not an employee of the Department, and sought permission for you to bring the client to the barbeque. Your aggressive demeanor towards the SYJO was inappropriate, disrespectful and, by approaching the CPFS Team Leader you undermined her authority.

45      In Agreed Document 3, Mr Lawn responds to Ground 5 by providing the background to the event (16 Days in WA without violence against women), citing emails about the event and emails regarding the client (Leo), Leo’s health and its impact on Leo’s attendance at the event, and stating the following:

I believe my conversation was inquisitive when speaking to Brooke.

I recall asking Brooke to request Leo to attend. Where Brooke replied why don’t you try asking him?

And without much pause I replied why don’t you request him to attend through community work that way it will remove any personal decisions on his behalf as it will not be a request from me but rather a directive through attendance from yourself within community work. Brooke replied but I know you don’t like me asking him.

As I also recall that this is the ‘current procedure’ for the YJ officer to request, as I have encountered this situation before and technically if clients refuse or do not attend then they cannot have paperwork reflect there decision to not attend.

At this point in the conversation, Brooke appeared to have taken my comment to heart and then mentioned in front of two YJ officers Leo had just seen a doctor from hospital about his burns and scarring And that she is concerned. (acquired as an infant.)

I believed this to be a second instance or visit to the Dr, that I was not made aware of, as the original and only instance Leo had been in hospital in regards to the situation was on Nov 8th. As stated in the next email below. pertaining to Leo being in hospital.

From there I was cautious as i had heard new information though Brooke then mentioned the last time which was November 8 and is know nearly 1 month later and the medical certificate was for three days. Mentioning this information was confusing and I now sought clarification from my manager as the information was clearly inaccurate and I was questioning my occupational health and safety concerns to work with him as he had signed a contract stating he has no medical condition at all what so ever.

When I was comfortable that Leo had not attended another appointment I stated he’ll be ok and showed Brooke a scar on my leg to show I had an awareness and empathy on Leo’s condition and occupational health and safety.

Brooke did not expand on the situation and remained staunch in her views. No other conversation was drawn out, Brooke appeared ‘closed down’ while two YJ officers/ staff looked on and I did not expand further on the conversation.

46      At the hearing, Mr Lawn addressed Ground 5 as follows (ts 26–32):

(a)               The SYJO is Brooke Sutherland and the CPFS Team Leader is Henry Taualai.

(b) He denied he argued with and spoke aggressively with Ms Sutherland. Rather, he asked if Leo could attend the BBQ. When Ms Sutherland said that Leo could not attend for health reasons, he stated that ‘I needed to learn further also, because I have a duty of care’. He stated that at the end of the conversation, he accepted that Leo could not attend the BBQ.

(c) He believes Ground 5 ‘to be totally incorrect and untrue’. He agrees that following his discussion with Ms Sutherland that he had a conversation with Mr Taualai, but denies he asked Mr Taualai for permission for Leo to attend the BBQ event. He stated that this is because he is aware that he cannot seek permission from another employee, from another department, for one of his clients to attend a BBQ.

(d) He stated that his conversation with Mr Taualai related to Mr Taualai attending the BBQ as a mentor to ‘assist and watch over some of the young people while they were alternating their events. So for instance, if there was ballon blowing’. He ‘may have said, “Oh, it’s a pity Leo … can’t go” or … something like that’ to Mr Taualai, but he was not asking Mr Taualai for permission for Leo to attend. He was not speaking to Mr Taualai about Leo attending the BBQ, ‘[b]ut if Leo and the others are to attend, could Henry please help me out and do some mentoring’. This is because he queries whether ‘is it defined at that stage that Leo was definitely not going at all whatsoever?’

(e) He stated that Ground 5 and the other grounds are either made up or exaggerated. He provided the example of Ms Sutherland stating that he pulled up his trouser leg ‘quite aggressively’ (Document 14 of the respondent’s bundle). He agreed he pulled up his trouser leg, ‘[h]owever people determined what style, that’s up to them’.

47      Under cross-examination, Mr Lawn (ts 48–50):

(a) Denied that he disagreed with Ms Sutherland about whether Leo should be able to attend the BBQ, or about whether Leo should be directed to attend. He said that he ‘asked why. It’s … not for me to agree or disagree. I asked and learn information to ... redirect my questions to learn … further’.

(b) Denied that when Ms Sutherland said that Leo was not to attend, that he asked again. He said, ‘I wouldn’t ask again.’ ‘I might’ve asked … “What’s the situation behind it?” “Why do you think he’s not fit?” “Is he fit?” … It’s only information I can make my conversation with’.

(c) Said, in response to a question regarding whether he persisted with the issue of whether Leo could attend the BBQ, ‘It’s the information I learnt. … and I may have conversed, … if it was the rationale about a medical certificate, then the medical certificate made me curious as to has he got a different and another medical certificate that I’m unaware of’.

(d) Denied the discussion with Ms Sutherland was tense and said, ‘it may have been … constructive and, … putting information … forward’. Mr Lawn agreed that the next day he said he was dishevelled by the discussion. He said, ‘this news of a new medical certificate … brought up suddenly had blindsided me while I was in front of … other people. And I had no recourse. And I did not know there was a current medical certificate in place’.

(e) Said, in response to a question about why he was dishevelled about the discussion when whether Leo attended the BBQ or not ‘would not affect my work position or my personal self’, ‘I was very curious. Well, I was blindsided through this new information. ... it was used as … a reason. And ... it ended the discussion, basically’.

(f) Accepted that Ms Sutherland is Leo’s case manager.

Ground for concern 6

48      Ground 6 states:

On 6 December 2022, you spoke to a SYJO who was sitting at her desk and said words to the effect, ‘Actually I’m a little disheveled about yesterday’, and ‘I’m going to put it in an email otherwise I’m going to get heightened…’ The SYJO offered to assist you and you walked around her desk to stand over her. You said words to the effect, ‘Yes I will but you’ll get it in an email so I don’t become heightened…’ whilst breathing heavily and staring intently at her. The SYJO felt intimidated and uncomfortable in your presence.

49      In Agreed Document 3, Mr Lawn responds to Ground 6 by stating the following:

The next morning I arrived at work and greeted Brooke good morning and Brooke returned the greeting and asked myself how I was feeling. And did offer any assistance.

My reply was I’m a little dishevelled from yesterday, And I’m going to put it in an email as I don’t want to get heightened. Brooke wanted more elaboration and I knew that running the story over between us both would not lead to a beneficial outcome as I had not felt good about how the conversation went silent at the end yesterday. So without having to speak louder as we had a partition between us I did walk round and explain that I wish to put it in an email so that it is transparent and we can all voice our opinions.

I believe that I answered honestly and respectfully and initiated a fair transparent and open process and communicated this well and [feel] that the conversation needed to be explored at a higher level. Without compromising anyone’s feelings.

By explaining how I felt and communicating my views and intentions I believe I displayed selfregulation and made my intentions clear. I was open in my actions and did not wish to ‘just spring the email and information onto Brooke’ or blindside her. But communicate my intentions in a professional manner to take the matter higher. It is possible Brooke felt threatened and defensive of my intent and used these counter measures to safeguard herself.

I did have eye contact with Brooke, I am concencious [sic] of body language and I am unaware that I stared intently. I may have been waiting for a response? And when no answer is received in the right amount of time I would likely break that eye contact.

Also I was uncertain about the community work contract filled out by Leo and Brooke and where it may lead myself in regard to occupational health and safety and my duty of care.

I feel that by Brooke mentioning Leo had just visited the Dr’s seemed like it was new information and did not disclose the information to necessary parties, making it a big and non-negotiable surprise. I felt blindsided by information that is actually a month old, though it was made to sound current. A Drs certificate for 3 days a month ago which has expired.

Mentioning it at the time in front of the YJ officers who are not familiar with the situation, may cause them to think it is current which is misleading.

Is Leo’s contract inaccurate? and what does it mean for me when I am working with him?

I had followed up with a phone call to Ione that day in point 7

50      At the hearing, Mr Lawn addressed Ground 6 as follows (ts 32–34):

(a) He agreed he said to Ms Sutherland that he felt dishevelled by the conversation they had the previous day and that he would put it in an email otherwise he would be heightened. This is because he was wary ‘about the information handed over and explained to me’ and whether there was another doctor’s certificate that he did not know about, and he felt that if he went over the subject that he would feel upset.

(b) He agreed that Ms Sutherland offered to assist him and that he walked around to Ms Sutherland’s desk. He denied he stood over her. He stated that he stood next to her. He agreed that she was sitting and he was standing.

(c) He disagreed that he was breathing heavily and staring intently at Ms Sutherland. He stated that that description of his body language is ‘not true and exaggerated’.

(d) He stated that he was maintaining eye contact with Ms Sutherland whilst he waited for her response, ‘that was all’, after that ‘I wouldn’t have just sat there’ and kept eye contact.

(e) He stated that he did not intentionally make Ms Sutherland feel intimidated. He went over to her desk so as to not talk over the partition. There ‘was no emotion behind it’, ‘I have a right to explain … my views. And I explained that I was going to make it transparent. I didn’t want to be … bickering between two people. I was displaying my intentions of communication so that it wouldn’t blindside her, and the subject is transparent’.

(f) He stated that he was just communicating. He ‘was trying to be … as pleasant and communicative as possible … using my best body language possible’.

(g) He accepted that when he is communicating with people outside the Department of Justice that he is in effect representing the Department, and there is a responsibility to represent the Department in a reasonable and appropriate manner.

Ground for concern 7

51      Ground 7 states:

On 6 December 2022, you telephoned the Manager Pilbara Youth Justice Services and held a 45-minute conversation, during which you said that you were upset about not being permitted to rewire a trailer and accused a staff member of blind-siding you deliberately in front of other people. You became angry and repeatedly referenced that there was a conspiracy by staff who were using you to ‘cut their teeth on’ and ‘get their claws into’. Your conduct made your manager feel uncomfortable.

52      In Agreed Document 3, Mr Lawn responds to Ground 7 by citing the email chain regarding the trailer rewiring and stating the following: (original emphasis)

held a 45-minute conversation – included a debriefing of segment 6 where I explained the situation with Leo to Ione. Nothing became of the situation and no correct procedure or matter was resolved. The term blindsiding was referenced in this conversation and not the trailer. I was referring to the news of Leo, ‘apparently’ seeing a Dr a second time. Which the case was not, it was only the one time a month ago where the Dr’s certificate expired after three days and I was very confused why it was brought up again a month later and referred to. And when hearing the news, felt like I had missed something, and had not been disclosed with any new information. Hence the term blindsiding.

I do not use the word conspiracy at all. As it can be easily taken out of context and used against you for a number of reasons.

I used the words ‘cutting her teeth’ and ‘sharpening her pencil’ as Brooke was delegated to acting team leader and Ione referred to her experience as practice development, and I replied yes cutting her teeth on me. Which in turn meant practicing.

…

When I arrived at the office that day bat 1230pm

I also sent Ione a straight forward email with a link and guide to the department policy and procedure for the consumer division and also sent a copy of the applicable qualifications and licences.

The need for the trailer to be sorted is a high priority

Would cost the department hundreds of dollars and the delay would be in the weeks till it was able to be seen diagnosed and then repaired.

The work delay within community work program would minimise the program extensively and knew that the issue can be sorted by myself within one working day.

I had also scheduled this work program with an 18 year old person whom had the interest and aptitude in mechanics. Basic testing and wiring would be beneficial and was trying to find his interests and strengths within this community work.

The weather was extremely hot and knew this would be a good short term project for early on in the morning and also benefit the department by repairing or diagnosing the wiring issue. I would be breaching occupational health and safety If I knowingly drove around the streets and can be liable if I have an accident.

53      At the hearing, Mr Lawn addressed Ground 7 as follows (ts 34–36):

(a) He denied saying that he was upset he could not rewire the trailer, as it is a ‘non‑emotional factor’. Rather, he had said it was unfair he could not rewire the trailer.

(b) He agreed that he said a staff member had blind-sided him, and that that had occurred in front of other people.

(c) He denied he used the word ‘conspiracy’. He denied he said that staff were using him to ‘get their claws into’ but agreed he said that staff were using him to ‘cut their teeth on’.

(d) At first, he agreed that he was angry during this phone conversation. He then resiled from being angry and said, ‘it’s only natural to be able to talk and vent your feeling in conversation and talk with someone’.

(e) He stated that he honestly does not know how Ms Griffiths felt. She did not tell him that she felt uncomfortable, and she did not appear or sound that way. He stated that he does not ‘believe I made my manager feel uncomfortable by talking with her’. He had no indication from her that she felt uncomfortable.

54      Under cross-examination, Mr Lawn (ts 50):

(a) Agreed he had a lengthy phone call with Ms Griffiths to discuss his interactions with his fellow staff members. He agreed he needed to vent his feelings, about ‘what was going on at work … and the way that people … carry out … or utilise instructions and directions’. ‘An example might be bringing new information to light without … informing me … because I directly work with … Leo. And I have a duty of care. And I am responsible. And if I am unknown to his … new conditions, then I can be liable for … certain things … involved with my community work’.

(b) Stated that by his reference to Ms Sutherland ‘cutting her teeth’ that he was referring to Ms Sutherland not having a lot of experience in the role.

(c) Agreed that he questioned Ms Sutherland’s competency.

(d) Agreed that he felt like swearing during the conversation but denied that it was during the conversation about Ms Sutherland, or that it was in part directed at Ms Sutherland. He said, ‘it was not totally directed at [Ms Sutherland]’ and ‘I believe it would be more so on … my mindset on the … whole impact of how I was feeling’.

Ground for concern 8

55      Ground 8 states:

On 7 December 2022, you had a meeting with your manager, to address concerns about your communication style with staff. During the conversation you repeatedly referred to female CPFSO’s as ‘Fuckedy Fucks’. Your body language was aggressive towards your manager and you were wide-eyed and intense in your conversation. At times you were angry, unable to speak and stared at the ceiling. Your behaviour was intimidating and made your manager feel very concerned for her personal safety.

56      In Agreed Document 3, Mr Lawn responds to Ground 8 by providing the background to Ms Griffiths’ request for a meeting and her opening comments at the meeting, and stating the following:

During explanation of point 1, I had described how the person was swearing consistently in conversation on the night that the person was talking with us and I mentioned to Ione that I refer to people who swear a lot in their conversation as ‘fucken fuckens’ it is more so a term of endearment and muse. Along with Ione’s approval of swearing the day before I was lax and thought it humanly relatable and at times due to my clouded and mixed feelings, I could not think of the persons name and the swearing is what I recalled mainly when recalling the person.

Hence the reason so when the person was being related to I asked oh do you mean ‘fucken fucken’

After hearing point 2,3,4 explained to me, my feelings and emotions where setting in me and where moving and changing. I felt hugely betrayed, un friended, isolated, and felt the need to withdraw. I felt I kept my self‑regulation to a minimum. I believe it may be human or have regular human reaction classed as ‘normal’ to show some type of emotion when confronted with these types of allegations. Hence maybe wide eyes, non‑eye contact by staring at the ceiling. I believe my speech would have also became slower as I felt I had to try harder to think about the questions and recollect on the situations to give a reply as well as deal with the feelings from the allegations.

At no time did I act out, say anything threatening.

I noticed my body language and pointed it out myself to Ione that my hands move sometimes when I talk in a gestural way, Ione replied that its ok a lot of people also do this.

I did say to Ione ‘you have been so good you have always heard me out’ Ione replied ‘oh Mark I’m just doing my job’

I stated to Ione that they have made their recipe, mixed the ingredient’s and put it in the oven.

Maybe it’s better I just go, Ione did suggest at sometime through the meeting after this comment that the process would be to clear my name within this investigation. This is prominent in my mind and knew it is the right and correct path to follow, as I feel that the facts have been twisted. Though at the time the situation just felt hopeless.

After the meeting had finished my feelings were that of to take an easy path and just leave, on my way out just before I left I handed in my credit card which I am solely responsible for and did not want any hiccups with and I left my ID badge. I did so to see if I would get a reaction, I left them close by to Iones personal handbag which was sitting on the desk.

57      At the hearing, Mr Lawn addressed Ground 8 as follows (ts 36–38):

(a) He agreed that he met with Ms Griffiths on 7 December 2022, and that the meeting was to discuss his communication with Ms McKnight.

(b) He disagreed he repeatedly referred to female CPFSO’s as ‘fuckedy fucks’. During his conversation with Ms McKnight at the pub event for Ms Peterson’s birthday, Ms McKnight had ‘swore profoundly all the time’. At the meeting, after hearing from Ms Griffiths about the allegations, he felt ‘aghast, drained, tired’, and he could not recall Ms McKnight’s name. As he had permission from Ms Griffiths from the call from the previous day to swear, and he could not recall Ms McKnight’s name he said, ‘Oh, do you mean fucken fucken’. He denied he called Ms McKnight ‘fucken fucken’ and stated that he used this term to recall the person that Ms Griffiths was referring to.

(c) He denied his body language was aggressive, but agreed he could have been wide-eyed because he was drained, and his speech may have slowed.

(d) He remembered looking up at the ceiling. He was in disbelief with what Ms Griffiths was saying.

(e) He denied his behaviour was intimidating and made Ms Griffiths feel concerned for her personal safety. He stated that if Ms Griffiths had genuinely felt unsafe, she would have removed herself from the situation.

58      Under cross-examination, Mr Lawn (ts 50–51):

(a) Agreed that he had a meeting with Ms Griffiths in person and that she told him she had several complaints about him that she needed to investigate.

(b) Agreed that during this conversation he raised issues about his interactions with Ms Jasper, Ms Peterson and Ms McKnight.

(c) Agreed that he said that Ms Jasper, Ms Peterson and Ms McKnight, ‘had made their recipe, mixed the ingredients and put it in the oven’.

(d) Said, in response to a question about whether he was suggesting they were corroborating to come up against him, ‘it felt like that at the time. Some kind of collusion’.

(e) Said, in response to a question about whether ‘some kind of collusion’ was a reference to the number of complaints made against him, ‘a collusion would equate to that. But … it was a reference to how it was … brought up from two, three months ago, which wasn’t brought up, up until now. If … I believe it was relevant … it wasn’t relevant at the time it was … that it was made’.

(f) Accepted that his discussion with Ms McKnight occurred on 28 November 2022 and his discussion with Ms Griffiths occurred on 7 December 2022, approximately eight days apart, and not months apart, but says ‘that was a formal complaint. And it was being addressed. And it was Ione’s job. So that was not months apart. That was addressed at the time’.

Ground for concern 9

59      Ground 9 states:

On 7 December 2022, at the conclusion of a meeting with your manager, you were expressly instructed by her to go home and not to return to work until further notice. You collected your personal belongings and left your Department issued lanyard, identification, credit card and paperwork on the manager’s desk. You had on multiple occasions advised her that you intended to resign. Your manager attempted to contact you the following day as arranged; however, you did not answer or call her back.

Five days later, you accessed the office against the instruction issued to you by your manager, by using your Department issued swipe card that you did not surrender with other Department property. This caused security concerns with the onsite staff as it was not known that you had withheld the swipe card. You were instructed by your manager to leave the office until further notice.

60      In Agreed Document 3, Mr Lawn responds to Ground 9 by providing background of his movements after arriving home on Wednesday 7 December 2022, citing the email trail indicating that he responded to Ms Griffiths’ missed call (of Thursday 8 December 2022) on Friday 9 December 2022 at 4:24pm, outlining that he expressed to Ms Griffiths an intention to resign (on 22 September 2022 when he raised with Ms Griffiths ‘that Emma had said in public’ ‘I may have chosen the wrong career’), and stating the following:

I expressly recall Ione advising me to take the next couple of days off, dating that Wednesday 7th and Thursday 8th though in my head on Thursday morning when speaking to the person who dropped my lunchbox off I knew I need the Friday 9th off also and to recoup on Saturday 10th and Sunday 11th which is my birthday.

On Monday morning I felt ready and collected with good self-regulation to return to work. Hence the email I sent on arrival Good Morning Ione, I have arrived at work, please advise how you wish me to proceed. I wish to clear my name within the formal proceedings for the matter you have raised. Then if possible I wish to follow up with yourself what was discussed in relation to the cwo position, please.

….

That same day, December 12th at 1403 I initiated a phone call to Ione who at the time asked to defer the call siting that she is currently busy and will call back at the earliest convenience. Ione called back at 1421 and part of the conversation Ione stated and said ‘I thought you were not returning due to the manner and way that you left your identification. I did not respond to that.

Ione also stated to not return back to work till further notice. I acknowledged this.

…

During the meeting on December 7th at no time was I asked to surrender any effects and that the meeting surmised mainly of listening to what happened and what I had to say, and a basic outline of the professional standards board process. However, I voluntarily surrendered my id and credit card without any prompts and without anyone seeing me. I did so to see if I would get a reaction as my manager stated before it would be best and be good to clear my name. As I believe this to be a misjudgement of what I had intended to be of a good and happy outcome of communication.

If I was made aware of the requirements, I would have handed them in personally and I believe that someone or the person asking would have waited and collected them personally from myself so to account for the belongings. I would not go against instructions especially to illegally enter a workplace / building as that stated on December 12th.

61      At the hearing, Mr Lawn addressed Ground 9 as follows (ts 38–41):

(a) He agreed that Ms Griffiths asked him to take the next couple of days off but denied that she had said ‘to not return’. Despite having a strong emotional reaction to what he was hearing at the meeting on Wednesday, he denied it was possible that he misunderstood the direction given to him not to return to the office until further notice. He stated that he is very ‘versed in recalling what is stated’, he does follow instructions, and he does not ‘do things so that I can get [reprimanded]’.

(b) He left his lanyard, ID, credit card and paperwork because he wanted to see if Ms Griffiths ‘wanted to follow up with me leaving or was content with me going’. He wanted to see if Ms Griffiths followed him up by asking, ‘Why did you leave your things here?’ ‘Are you going? Are you going to go?’

(c) He said he did not leave his access card because he ‘intended to come back’.

62      Under cross-examination, Mr Lawn (ts 51):

(a) Agreed that immediately following his meeting with Ms Griffiths, he left his belongings (lanyard, work credit card) to see if Ms Griffiths would react to him doing so. He said, ‘[b]ecause I was not directed to leave them. And I was not asked for them. So I … mentioned I was going to leave’.

(b) Agreed that he wanted to give the impression that he was not returning. He said, ‘[b]ecause Ione did not want me to leave’.

Ground for concern 10

63      Ground 10 states:

On 14 December 2022, you were served with a formal letter from the Director of Professional Standards instructing you not to return to work until otherwise directed. After being served the letter, you became angry and hostile and stepped towards your manager invading her personal space. She was forced to step backwards and attempted to walk away when you stepped in front of her and blocked her path causing her to have to step around you. Your behaviour was intimidating, threatening and made your manager feel very concerned for her personal safety.

64      In Agreed Document 3, Mr Lawn responds to Ground 10 by stating the following: (original emphasis)

…

On the 15 December 2022 at 1332 hours, I saw Ione and Nathan walk out the office building to the immediate car park for that site. I noticed them and called Ione, before the phone could be answered Ione noticed where I stood. I cancelled the call and waited for them to arrive. Ione announced that Nathan was there as a witness as there was a letter to be served and it need to be witnessed. Ione handed the letter to myself.

As I had matters to ask In confidentiality, I asked to move further away from Nathans hearing range. Some details were discussed, and the conversation slowly led back up towards Nathan as we dwindled while talking about the pending investigation.

Next I recall stating to Ione in front of Nathan while I was processing all the possible scenarios of situations as I was led to believe it hinged on point 2, 3, 4. One situation I explained and felt that can be inflamed or exaggerated was I don’t know how it will work out if Lucy keeps avoiding myself and is afraid of me, if I was afraid of someone, I would not return at all as I would be concerned for my safety and I would take the matter to a higher level if I was forced to work with someone that comprised my safety. Ione replied that would not be up to Lucy and that would be a matter for her manager and myself to work through.

I also stated out loud in front of Nathan to Ione, I’m the least expensive part of the team you can operate without me, I’m the most dispensable part of the chess set, like a pawn. Ione replied don’t say that. I stated I’m just moving through all the different scenarios in my mind and playing it out.

The conversation rounded up with Ione mentioning that if I felt down and needed to talk, I can call and use the EAP and Ione deflected the conversation over to Nathan where Nathan spoke up and said yeh they are really good I’ve used them myself. I said thankyou to Ione and then said thankyou to Nathan for everything you’ve done. Nathan stated I haven’t done anything in a slightly higher voice. I replied oh for saying to use the EAP (pointing out that he is concencious [sic]) the conversation then steered to all of us giving Christmas wishes to each other and then parting my separate way.

65      At the hearing, Mr Lawn addressed Ground 10 as follows (ts 41–43):

(a) He thought the whole ‘communication was pleasant. Everything seemed pleasant about it. ...towards the end … we said, “Merry Christmas”.’ ‘What happened was a very pleasant and nice transaction and communication.’

(b) He stated that he was ‘more deflated’ and that he ‘was the opposite of intimidating because … my whole life had just been upturned and I felt small’.

(c) He stated that he ‘felt betrayed’. ‘I was betrayed by what was written and how it was written. I don’t know what Mr Fleming or why Mr Fleming portrayed that’. He stated that he does not have a relationship with Mr Fleming ‘for him to betray me’, rather, he feels betrayed by the Department.

Mr Lawn’s contentions

66      Mr Lawn accepts that ‘there is a probationary period with many and probably all positions’ and that ‘a probationary period is for six months to see if people are suited to work with each other, to see if they are suited to the job and how well they perform’, but believes that if it was not for his conversation with Ms McKnight (Ground 2) that he would not have received a probationary review (ts 10).

67      Mr Lawn stated that his conversation with Ms Jasper was before his conversation with Ms McKnight, and he had intended to replicate the conversation with Ms McKnight. He stated that he is ‘sincerely sorry that [Ms McKnight] walked away feeling the way … she has. And it was intended to strengthen the relationship in [all] goodwill’. In relation to Ms Peterson, Mr Lawn stated that he had no direction he was in her personal space, ‘nor any direction into how she may have felt intimidated’, as he believed he spoke with Ms Peterson about Leo, who they both worked with, ‘in a pleasant way’, and that he ‘was carrying out my daily duties at work … by approaching … another public officer’ (ts 52).

68      Mr Lawn filed a written outline of submissions, in which he states:

[Agreed Document 2] requiring my response was written in a very defamatory approach and I feel untrue events of allegations were written and stated to which I responded to accordingly and not taken into consideration. The alleged untrue events where then forwarded to the acting Director and Director General [and] taken-on merit. Though the people in question regarding the allegations had all left the Department of Justice shortly after the allegations were put forward as well as the main person making an accusation has left the Pilbara district.

69      At the hearing, Mr Lawn provided the example of the investigator documenting Ground 2 as alleging that he said to Ms McKnight that ‘You always look at me funny and pull faces’, when this allegation is not contained in Ms McKnight’s complaint (ts 54).

70      Mr Lawn submits that only Ms McKnight made a formal complaint. Mr Lawn notes that the investigator asked Mr Taualai and Ms Peterson to lodge a formal complaint, but they did not. Mr Lawn suggests that if their concerns were serious, that should have occurred (ts 55).

71      Mr Lawn submits that his dismissal comes down to two people: Ms McKnight who made a formal complaint, and the investigator, who Mr Lawn says documented the allegations against him in a defamatory manner. Mr Lawn urges the Board to review all the information to determine whether the allegations are substantiated (ts 55).

72      Mr Lawn submits that the respondent’s delay in addressing the concerns about his behaviour raises doubts that the situations ‘occurred and [are] largely true’ (ts 55).

73      Mr Lawn submits that he collected letters of support (at [24] above) which was not ‘looked at from my peers and taken into account’ (ts 55).

74      The Board notes that while the letters of support at [24(a)–(b)] above are undated, the letter at [24(c)] is dated 16 October 2023, which suggests the letters were obtained by Mr Lawn in support of the appeal, rather than letters provided in response to Agreed Document 2 that were not considered by the decision-maker prior to the dismissal decision. The Board also notes that Agreed Document 3 makes no reference to these letters.

75      Mr Lawn submits that he has worked in the field for 10 years and has worked in the Department of Justice in other roles. He submits that he has never ‘had this kind of reverberation come against me in my career [of] having difficulty with people. I have taken it upon myself to do internal and external courses and curriculum in educating myself to be amongst people. And for this to happen remotely, in a remote place, is … very odd’ (ts 55).

76      Mr Lawn submits that the lesson he has learnt from the experience is to not put himself into a position where it can be used against him. He says that from this experience, he has ‘been educated to have all my following conversations in front of people’ and to look at the way he approaches people ‘and identify how people may not get triggered, what may be any underlying background that they have that might upset them that I’m not aware of [and] to be more informed and ask for advice before I approach situations’ (ts 57).

77      Mr Lawn submits that nothing formal was brought to his attention during the probationary period. He says that he was acting through good intentions and was unable to be aware of other people’s opinions of what was happening. He says that he would have followed directions and been more alert to his behaviour and their boundaries. He says he could make sure there was a good distance if he approached anyone (ts 67).

78      Mr Lawn accepts the Code of Conduct applied to his employment, agrees he was aware of it at all times whilst employed, and agrees he must abide by it (ts 68).

79      Mr Lawn says he has a lot of experience working with young people, and it is necessary for him to learn and ask questions about how things and procedures can be carried out. He has a duty of care to the clients and needs information to learn about each client so that he can work and feel safe when he works with a client. By this, the Board understands Mr Lawn to be saying that he asks questions to gain information and did not do so with an intention to undermine his colleagues.

The respondent’s contentions

80      The respondent relies on Crabtree and submits that when considering an appeal from a decision to terminate probationary employment, the Board is not deciding whether there was underperformance or misconduct that justified termination. Rather, the Board is deciding whether the employer’s right to terminate employment during the probationary period was misused or abused. The respondent submits that the right to terminate Mr Lawn’s probationary employment was neither misused nor abused.

81      The respondent submits that the evidence before the Board establishes that the respondent had concerns about Mr Lawn’s conduct, those concerns were reasonably held, and the respondent appropriately exercised the right to terminate Mr Lawn’s probationary employment.

82      The respondent submits that while there are 10 grounds in Agreed Document 2, they all relate to the requirement for Mr Lawn to comply with the Department’s Code of Conduct, requiring him to show respect, follow instructions, work in cooperation with supervisors, managers and work colleagues, and to maintain a professional approach to all.

83      The respondent submits that they were concerned about Mr Lawn’s willingness to engage in intimidating and aggressive behaviour, in particular, regarding female staff, including his supervisors and female staff from the Child Protection Family Services Unit.

84      The respondent submits that by the number of events identified over the course of Mr Lawn’s probationary period, which involved a range of individuals from different departments who provided separate evidence from separate events, and the fact Mr Lawn does not dispute the basic facts of those interactions, the concerns were reasonably held by the respondent.

85      The respondent acknowledges Ms Jasper’s email (at [25] above) but says that that singular positive endorsement is outweighed by the array of other complaints about Mr Lawn’s behaviour.

86      The respondent submits that Mr Lawn was afforded procedural fairness through firstly having the opportunity to discuss his concerns about the workplace with Ms Griffiths on multiple occasions, and when he was formally notified of the concerns (Agreed Document 2), he was given an opportunity to respond in writing (Agreed Document 3) before the final decision was made (Agreed Document 4). The respondent submits that, in any event, any procedural fairness issues have been cured by the detailed opportunity Mr Lawn had to put his version of events forward to the Board on appeal.

87      The respondent relies on Crabtree that a probationary employee has little cause to complain if a decision was made to terminate the probationary employment where the employee:

(a) was counselled and informed that they were not meeting the required standard of performance;

(b) was given reasonable training in respect of the required standard; and

(c) was warned of the possible consequences of a failure to improve.

88      The respondent submits that the following documents evidence that Mr Lawn was counselled and informed that he was not meeting the required standard of performance:

(a) Ms Griffith’s summary of interview on 6 January 2023, describing a series of conversations between Mr Lawn and his supervisors (Document 11 of the respondent’s bundle); and

(b) the email exchange between Ms Sutherland and Mr Lawn explaining that it was ultimately Ms Sutherland’s decision whether or not Leo should be able to attend the BBQ. (The respondent says this email supports Mr Lawn having been counselled regarding allowing the persons with authority to make decisions and having those decisions listened to.)

89      The respondent also refers to the multiple discussions with Mr Lawn about the distinction between his role as a CWO and what the YJSOs were to do, and to ensure there was an understanding of the delineation between the two roles.

90      The respondent submits that Mr Lawn was provided with training before his commencement at the South Hedland Office and when he was in South Hedland, he received on-the-ground induction training from Mr Moxham. The respondent submits that the Code of Conduct is front-and-centre in the Contract – being identified and described to Mr Lawn that he must comply with it and shown where he may find it. The Contract also states that Mr Lawn is required to follow all reasonable and lawful directions given to him by the respondent, including policies and procedures.

91      The respondent submits that the requirement to ensure a probationary employee is aware of the consequences of their conduct needs to be taken in context of a probationary employee who has made persons feel so uncomfortable that there was a concern, from the respondent’s perspective, about the need to maintain the safety of persons in the office. The respondent submits that the warning of the possible consequences may be tempered by the need to have Mr Lawn no longer attend the workplace, as was directed on 14 December 2022 (Document 8 of the respondent’s bundle), which curtailed to a degree the opportunity for further discussion about the consequences.

92      The respondent says this is because, at that point, things had escalated to the need for a formal investigation. On 7 December 2022, Ms Griffiths attended the South Hedland Office to put the concerns held by Mr Lawn’s colleagues to him, to gain his perspective and discuss next steps (Document 11 of the respondent’s bundle). In that discussion, Mr Lawn told Ms Griffiths that he was going to leave the role. Ms Griffiths requested Mr Lawn not to make any rash decisions, to think about it, and to stay away from the workplace until they have a further discussion. Their discussion and Mr Lawn’s subsequent action of leaving his lanyard and workplace belongings created a general understanding that he would not be returning to the South Hedland Office until further action was taken. Mr Lawn’s subsequent attendance at the office on 12 December 2022, prior to office hours, and to the surprise of his colleagues and supervisors, without permission, led to the escalation of a suspension of his swipe card and the formalised direction not to attend work (Document 8 of the respondent’s bundle). The respondent submits that ‘where there would have been that opportunity for more learning, that was contracted by his attendance without authority on the Monday’ (12 December 2022) (ts 71).

93      The respondent also submits that Mr Lawn was warned of the possible consequences through the investigation (Agreed Document 2) and the opportunity provided to him to respond (Agreed Document 3), which was taken into account in the ultimate decision to terminate his probationary employment (Agreed Document 4).

94      The respondent submits that the onus is on Mr Lawn to demonstrate that the Board should adjust the dismissal. The respondent submits that Mr Lawn has not demonstrated that the respondent’s decision to terminate his probationary employment was unreasonable and unfair. Therefore, the respondent’s decision should be upheld and the appeal should be dismissed.

Consideration

95      The Board agrees with the respondent’s submission at [80] above, that in disposing of the appeal, it is not necessary to determine whether the grounds for concern are substantiated. Instead, the focus is on whether the respondent’s concerns were genuinely held and whether the respondent’s right to terminate Mr Lawn’s probationary employment was exercised without misuse or abuse.

96      Agreed Document 2 outlines 10 concerns, involving the following persons, across the following Departments, on the following dates:

97      The table at [96] highlights that the concerns relate to interactions with six individuals some of whom are Mr Lawn’s supervisors and others are his work colleagues, who work across two different Departments, across a less than three‑month period, with Ground 1 occurring within eight days of Mr Lawn commencing at the South Hedland Office on 12 September 2022.

98      The Board’s assessment of whether the respondent’s concerns in relation to each ground was genuinely held follows.

99      In relation to Ground 1, Mr Lawn agreed that he had the discussion with Mr Moxham that is the subject of Ground 1. What he disagrees with is the characterisation of his demeanour (that he was physically and verbally agitated and aggressive in his demeanour) during the discussion. He agreed that he was repetitive and that it was a long-winded conversation.

100   In relation to Ground 2, Mr Lawn agreed that he initiated the discussion with Ms McKnight that is the subject of Ground 2. He disagrees he said, ‘You always look at me funny and pull faces’. He says that the fact that Ground 2 contains those words when in Ms McKnight’s email to the investigator dated 5 January 2023 (Document 10 of the respondent’s bundle) (Document 10) Ms McKnight does not claim that Mr Lawn said those words to her, suggests that the investigator was biased.

101   The Board notes that Agreed Document 2 is dated 20 January 2023, by which time Ms McKnight had provided her written account of her interaction with Mr Lawn (Document 10) to the investigator. In Document 10, Ms McKnight says that Mr Lawn said the following words to her: ‘Do you have a problem with me’, ‘I feel like you have a problem with me, I can tell through your facial expressions and way you talk to me’.

102   The Board notes that Ground 2 is framed as Mr Lawn saying words to the effect of ‘Do you have a problem with me? You always look at me funny and pull faces’ to Ms McKnight. The Board considers it would have been preferable for Ground 2 to slavishly reflect the words used by Ms McKnight in Document 10. However, the Board does not accept this imputes any bias on the investigator.

103   While Mr Lawn accepted that Ms McKnight’s demeanour towards him changed after their conversation, he stated to the Board that he doubted the genuineness of Ground 2. By this, the Board understands that Mr Lawn doubts that his conversation with Ms McKnight caused her to ‘become distressed and concerned for her safety’ as is stated in Ground 2. Indeed, Mr Lawn stated to the Board that his doubt arises from Ms McKnight being close with his supervisor, Ms Anderson. He stated to the Board that his standing with Ms Anderson changed when he blind-sided her with his complaint to their manager, Ms Griffiths, on a video‑conference call (at [35(e)] above).

104   In relation to Ground 3, Mr Lawn stated to the Board that he sincerely doubts he invaded Ms Peterson’s personal space and spoke to her in a manner that caused her to feel intimidated. He stated that the fact that Ms Peterson did not make a formal complaint causes him to doubt the genuineness of Ground 3. Further, he stated that he believes that Ms Peterson raised Ground 3 because she was upset upon hearing that Mr Lawn had upset Ms McKnight.

105   The Board notes that Ms Peterson first raised her concern about her conversation with Mr Lawn on 29 November 2022 with his team leader, Ms Anderson on or before 3 December 2022 (Document 1 of the respondent’s bundle). In Document 1, Ms Anderson records that Ms Peterson stated that she ‘felt intimidated as Mark was in her personal space and intensive’.

106   In relation to Ground 4, the Board notes that on 2 December 2022, Ms Jasper reported to Ms Anderson that Mr Lawn had approached her in the kitchen and asked if she had an issue with him. While Ms Jasper stated to Ms Anderson that she was not intimidated and felt that it was fair for Mr Lawn to ask her that question because she was grumpy around that time, Ms Jasper wanted to inform Ms Anderson of her interaction with Mr Lawn because she ‘felt there was a pattern’.

107   The Board notes that Ms Jasper informed Ms Anderson of her concerns about Mr Lawn on 2 December 2022 and Agreed Document 2 is dated 20 January 2023 and Agreed Document 3 is dated 30 January 2023. However, Ms Jasper’s letter (at [25] above) is dated 1 February 2023. This means, at the time of Agreed Document 2, the respondent only had Ms Jasper’s report to Ms Anderson given on 2 December 2022 from which to frame Ground 4.

108   In relation to Ground 5, Mr Lawn agreed that he had the discussion with Ms Sutherland and Mr Taualai that is the subject of Ground 5. What he disagrees with is the characterisation of his demeanour (that his demeanour was aggressive and that by approaching Mr Taualai he undermined Ms Sutherland’s authority).

109   While Mr Lawn disagreed he argued with Ms Sutherland, he agreed that he persisted in his questioning of Ms Sutherland regarding Ms Sutherland’s position on Leo’s attendance at the BBQ. While Mr Lawn disagreed that he was undermining Ms Sutherland by speaking with Mr Taualai following speaking with Ms Sutherland about Leo’s attendance at the BBQ, and under cross-examination he accepted that Ms Sutherland was Leo’s case manager, he maintained before the Board that at that stage of his discussions with Ms Sutherland he was not convinced that ‘Leo was not going at all whatsoever’.

110   Under cross-examination regarding Ground 7, Mr Lawn agreed that he questioned Ms Sutherland’s competency. Further, Mr Lawn stated before the Board that he considered that Ground 5, and the other grounds, were either made up or exaggerated.

111   In relation to Ground 6, Mr Lawn agreed that he had the discussion with Ms Sutherland which was the subject of Ground 6. What he disagrees with is the characterisation of his demeanour (that he was breathing heavily and staring intently at Ms Sutherland).

112   Mr Lawn stated to the Board that he considered the description of his body language to be untrue and exaggerated. While he agreed that he maintained eye contact with Ms Sutherland, he says this was because he was waiting for a response from her.

113   Mr Lawn stated that he did not intentionally make Ms Sutherland feel intimidated. While the Board accepts this, for the reasons that are to follow, the Board considers the respondent’s concerns about Mr Lawn to be genuinely held.

114   In relation to Ground 7, Mr Lawn agreed that he had the discussion with Ms Griffiths that is the subject of Ground 7, subject to a clarification over the exact words used by him. At first, Mr Lawn agreed that he was angry during this phone conversation. He then resiled from this statement and said he was only venting his feelings with his manager. He stated to the Board that he doubted that Ms Griffiths felt uncomfortable during their phone call because she gave no indication to him during the call of her discomfort.

115   In relation to Ground 8, Mr Lawn agreed that he had the discussion with Ms Griffiths that is the subject of Ground 8, subject to a clarification over the exact words used by him (such as ‘fucken fucken’ as opposed to ‘fuckedy fucks’). Mr Lawn denied his body language was aggressive but agreed that he was wide-eyed and that he was staring at the ceiling. Mr Lawn disagreed that his behaviour was intimidating and made his manager feel concerned for her personal safety because, he said, if she genuinely felt that way, she would have removed herself from the situation.

116   Mr Lawn agreed under cross-examination that he said to Ms Griffiths that Ms Jasper, Ms Peterson and Ms McKnight ‘had made their recipe, mixed the ingredients and put it in the oven’, by which he meant that they were colluding in their complaints against him – the imputation being that their complaints were not genuine.

117   In relation to Ground 9, Mr Lawn agreed that he had the discussion with Ms Griffiths that is the subject of Ground 9. What he disagrees with is that Ms Griffiths instructed him to stay away from the office until further notice. He says, Ms Griffiths only directed him to stay away from the office for the next couple of days. Under cross-examination, Mr Lawn agreed that he left his lanyard, ID, credit card and paperwork because he wanted to give the impression he was not returning.

118   Given the items that Mr Lawn left behind and the impression that he wanted to give (that he was not returning), the Board does not consider Mr Lawn retaining his swipe card, which created a security issue when he used it to access the office on the following Monday, to have been adequately explained by him.

119   In relation to Ground 10, Mr Lawn denied all aspects of this ground. Mr Lawn said to the Board that he was the opposite of intimidating to Ms Griffiths. He said that by the events leading up to that day, he felt betrayed. Mr Lawn struggled with articulating who he felt betrayed by and ultimately stated that he felt betrayed by the Department.

120   In Agreed Document 4, the respondent states the following:

In my view, the information presented to me demonstrates a willingness on your part to engage in intimidating and aggressive behaviour towards female staff, including your supervisors and female staff from the Child Protection Family Services who occupy the same office.

Your response does not assuage my concerns about your conduct. The impression I am left with after reading your response is that you are focused on explaining why you believe you were ‘right’ or justified in your views about the subject matter being discussed in the conversations. This is irrelevant. The issue of concern is the manner in which you conducted yourself during these conversations. Your response did not demonstrate any significant insight into the concerns that were put to you. One comment made in your response was, ‘It is out of my control to how people wish to believe and perceive and say how they think I felt and acted.’

I have no confidence that there will be any change in your conduct and, as an employer, I will be continuing to expose other staff to behaviours that create an unsafe workplace should your employment continue.

I consider that fact that this pattern of behaviour has emerged so consistently so early in your career present a significant risk to the Department should you continue as a community work officer.

121   Having heard from Mr Lawn directly in relation to each concern, the Board considers that the respondent’s conclusions reached in [120] to be available on all of the evidence and therefore genuinely held by the respondent.

122   Mr Lawn suggests that in relation to Grounds 2–‍4, that Ms McKnight, Ms Peterson and Ms Jasper corroborated and colluded to make false allegations against him. The Board does not consider there to be any substance to this suggestion. To the contrary, the positive statement made by Ms Jasper (at [25] above) speaks against any such collusion.

123   Mr Lawn suggests that if Ms Peterson and Mr Taualai had genuine concerns about his conduct, that they would have made a formal complaint about him. The Board notes that the respondent’s bundle does not contain their formal complaints, but Ms Peterson was concerned enough about her interaction with Mr Lawn that she reported it to his team leader, Ms Anderson, on or shortly after the exchange (Document 1 of the respondent’s bundle). Further, the Board notes that the respondent’s bundle indicates that Mr Taualai’s concerns were to support his team, comprising of Ms McKnight and others, in their complaints against Mr Lawn, rather than having a complaint of his own to make against Mr Lawn.

124   Mr Lawn suggests that if Ms Griffiths and others had genuinely felt uncomfortable by his conduct, they should have either expressed that feeling to him or removed themselves from the situation. Mr Lawn suggests that the fact that this did not occur speaks against the genuineness of their feelings and of his intention to place them in that situation.

125   While the Board can accept that Mr Lawn may not have been aware that his conduct made his colleagues feel uncomfortable at the time, Mr Lawn was placed on notice, firstly by his manager on 7 December 2022, secondly by Agreed Document 2, and thirdly by having to answer to each concern in the appeal, of each ground for concern. In responding in writing to Agreed Document 2, and in addressing each ground for concern in the appeal, Mr Lawn has had ample opportunity to reflect on his behaviour and whether it could reasonably have caused each of Mr Moxham, Ms McKnight, Ms Peterson, Ms Sutherland and Ms Griffiths to have experienced the feelings detailed in each ground for concern.

126   The Board has reviewed Ms Griffiths’ record of interview with the investigator (Document 11 of the respondent’s bundle). In this record, Ms Griffiths states the following about her discussion with Mr Lawn on 7 December 2022:

She challenged him on the situation with Ms McKnight, explaining she said that she also would not have been comfortable, and she too would have been intimidated. He disagreed and said that if people felt uncomfortable, they should have raised it at the time if it was true. She told him that is not something that everyone would be able to do if they’re confronted in the moment and they wanted to get out of the situation. They wouldn’t be able to say they’re feeling uncomfortable or feeling scared. He didn’t agree with this at all.

…

That was how every conversation went with him. She could never get him to a place where he could understand his behaviours or have insight or reflect that his behaviour made people feel uncomfortable.

127   During the hearing, the Board asked Mr Lawn to comment, from his perspective, as to why there is an appeal involving 10 grounds for concern, and what his role is in any of the grounds. Mr Lawn’s answer was that ‘the concerns are not positive and they have been put forward to be addressed to learn further information of what occurred’.

128   The Board considers Mr Lawn’s approach before the Board to each ground for concern to be consistent with Ms Griffiths’ observations at [126], namely that Mr Lawn does not appear to accept that his behaviour could reasonably have caused each of Mr Moxham, Ms McKnight, Ms Peterson, Ms Sutherland and Ms Griffiths to feel uncomfortable.

129   The Board also considers Mr Lawn’s approach before the Board to be consistent with his approach in responding to the respondent, resulting in the respondent’s conclusion that ‘I have no confidence that there will be any change in your conduct and … I will be continuing to expose other staff to behaviours that create an unsafe workplace’: [120] above. As noted at [121] above, the Board considers this conclusion available on all of the evidence, and therefore, the Board considers the respondent’s dismissal of Mr Lawn for this reason was not a misuse or abuse of the right to terminate his probationary employment.

130   In accordance with [18(a)–(b)] above, and for the reasons at [96]–[129] above, the Board finds that the respondent’s concerns about Mr Lawn were genuinely held and that the respondent did not misuse or abuse the right to terminate his probationary employment.

131   In accordance with [18(c)–(d)] above, the Board finds that Mr Lawn received adequate support and training to enable him to perform satisfactorily and was adequately informed he was not meeting the required standards, including the consequences of a failure to improve, for the following reasons:

(a) Mr Lawn agrees that the Code of Conduct applied to his employment and that he was required to comply with it as a term of his employment.

(b) On 7 December 2022, Ms Griffiths met with Mr Lawn to discuss the concerns that had been raised against him.

(c) By Agreed Document 2, Mr Lawn was formally placed on notice that his probationary employment was under review and of the consequences of a failure to demonstrate suitability for ongoing employment: (emphasis added)

Clause 5 of the contract of employment you signed on 4 August 2022 states that, in accordance with subclause 8(1) of the [Award], you are subject to a probationary period of six months and if there are any concerns regarding your performance or conduct, your probation may be extended or your employment terminated by the giving of one week’s notice or payment in lieu of notice.

The question of your suitability is a matter that is determined by the Director General. To this end, to assist me in considering whether to recommend to the Director General that he consider your suitability and whether to potentially extend your probation or terminate your employment, I am providing you with an opportunity to respond to the concerns.

The concerns relate to an alleged pattern of inappropriate behaviour that, if it has occurred, breaches the Department’s Code of Conduct in relation to personal behaviour. The alleged conduct is particularly concerning because the first incidents are alleged to have occurred within a month of you starting your employment.

To afford you procedural fairness, I will set out the grounds of concern, below, and provide you with an opportunity to respond in writing to those concerns within seven days of your receipt of this letter.

(d) By Agreed Document 2, Mr Lawn was given the opportunity to demonstrate suitability for ongoing employment: (emphasis added)

Providing a response

Should you wish to provide a written response to these concerns, I will consider your response before deciding whether to progress this matter to the Director General for his consideration on whether to terminate your employment on the grounds of suitability during the probationary period of your employment or to extend your probationary period.

 (e) Mr Lawn exercised the opportunity to demonstrate suitability for ongoing employment (Agreed Document 3), which the respondent considered before exercising the right to dismiss Mr Lawn (Agreed Document 4): (emphasis added)

Ms Jones advised you that she was considering recommending to me that I consider extending your probationary period or terminate your employment due to concerns relating to a pattern of inappropriate behaviour that consistently breaches the Department’s Code of Conduct in relation to personal behaviour.

You were informed Clause 5 of the contract of employment you signed on 4 August 2022 states that, in accordance with subclause 8(1) of the [Award], you are subject to a probationary period of six months and that if there are any concerns regarding your performance or conduct, your probation may be extended or your employment terminated by the giving of one week’s notice or payment in lieu of notice.

You were provided with an opportunity to respond to the information that formed the basis of this recommendation. Based on your response of 30 January 2023, together with the raised concerns, Ms Jones has progressed the recommendation to me to consider terminating your employment.

Having considered the same material I am dismissing you from your employment whilst on probation with immediate effect.

Conclusion

132   For the preceding reasons, the Board finds that the decision to terminate Mr Lawn’s probationary employment aligns with the purpose and principles of probationary employment.

133   Consequently, the Board finds that Mr Lawn has not demonstrated an arguable case that would warrant granting an extension of time for him to appeal the dismissal.

134   Therefore, both the application for an extension of time to appeal, and the appeal, will be dismissed.