DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr John Nemcic
v
Australian Electoral Commission T/A AEC
(U2018/74)

Application for an unfair dismissal remedy – Commonwealth public servant – alleged interference in electoral count – standard of proof – serious misconduct – valid reason for dismissal – procedural fairness – material failures in disciplinary process - factors in mitigation - dismissal not harsh, unjust or unreasonable – application dismissed

[1] Mr John Nemcic (the Applicant) has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by the Australian Electoral Commission (AEC or ‘the employer’). He claims to have been unfairly dismissed on 13 December 2017. At the date of dismissal he was employed as the Manager of the AEC’s Industrial and Commercial Election (ICE) Unit in South Australia.

[2] Mr Nemcic claims that his dismissal was harsh, unjust or unreasonable. He seeks reinstatement to his former position and ancillary orders for foregone wages and lost benefits.

[3] The AEC oppose the application. It says that on 13 December 2017 it terminated Mr Nemcic’s employment under section 15(1)(a) of the Public Service Act 1999 and that the termination took effect from the close of business the following day. It contends that its dismissal was not harsh, unjust or unreasonable, and that no issue of remedy arises.

[4] On 5 February 2018 conciliation of the application was conducted by a Commission-appointed conciliator. It did not settle. It was referred to me for hearing and determination.

[5] Pre-hearing interlocutory proceedings arose on the application, largely over contested issues concerning the production of documents by the employer and whether a witness to be called by the AEC (Mr Holcombe) should be permitted to give evidence by video link.

[6] I issued general directions in the matter on 20 February 2018 and 27 March 2018. By decision and order of 16 March 2018 1 and further decision and order of 1 May 20182, I ordered that the employer produce unredacted versions of certain reports to the Commission and to the applicant. By further decision of 7 May 20183 I granted leave for Mr Holcombe to give evidence by video link, and made further directions concerning production of documents. By decision of 30 April 20184 I granted permission under section 596 of the FW Act (which had not been opposed) for both Mr Nemcic and the AEC to be legally represented in the matter.

[7] I conducted hearings on 8, 9, 10 and 11 May 2018 and on 18, 19, 26 June and 4 July 2018.

[8] In advance of the hearing, and consistent with my directions and orders, I received witness statements, documents (including those produced in consequence of my orders), outlines of opening and closing submissions and authorities from both Mr Nemcic and the employer.

The Evidence

[9] The evidence before me is voluminous.

[10] Mr Nemcic filed three witness statements which appended a substantial number of documents. 5 Mr Nemcic gave oral evidence in support of his application.

[11] The AEC filed five witness statements and each witness gave oral evidence:

• Jude Feige, Team Leader AEC Industrial and Commercial Election Unit (South Australia) 6;

• Jennifer Southall, AEC Divisional Returning Officer 7;

• Jonathan Nicholl, AEC Assistant Commissioner (Corporate Services Branch) 8;

• Tim Courtney, AEC First Assistant Commissioner (Capability Division) 9; and

• Lex Holcombe, Partner HWL Ebsworth Lawyers 10.

[12] I also received sworn declarations from AEC officers (Ms Garrett and Mr Davis) concerning the existence of documents which had been subject to my order to produce. 11

[13] The AEC also tendered substantial documentary material including (but not limited to) two investigative reports conducted by HWL Ebsworth. The first such report I refer to as the Will Report 12 (it being a preliminary investigation report by Mr Michael Will of HWL Ebsworth Lawyers) and the second I refer to as the Holcombe Report13 (it being an investigation report by Mr Lex Holcombe of the same firm).

[14] Also of significance in the AEC materials are two decisions the employer made as part of its disciplinary process: the first being a ‘Decision in relation to an alleged breach of the APS Code of Conduct’ by Mr Jonathan Nicholl 14 (the Breach Decision) and the second being a ‘Decision of sanction for breach of the APS Code of Conduct’ by Mr Tim Courtney15 (the Sanction Decision).

[15] No agreed statement of facts was submitted in advance of the hearing.

[16] Substantial disputes of fact arose on the evidence, and they are material to the determination of this matter. Issues of credit are relevant. In this matter the demeanour of witnesses, the tone and manner of giving evidence, the consistency (or otherwise) between oral evidence and documentary evidence or witness statements, the existence (or otherwise) of corroborating documentary or audio evidence, and the inherent plausibility of versions are all relevant to my findings of fact.

[17] Some of the witness evidence strayed from factual matters into hearsay, opinion, assumption and commentary. I place reduced levels of weight on such evidence except where corroborated by direct evidence, is uncontested or inherently believable. I am not bound by the rules of evidence but consider them to be a good and useful general guide. I adopt the approach of a full bench of this Commission which has said:

“The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s. 577(a) of the Act. Although it is not bound by the rules of evidence and procedure, the Commission tends to follow the rules of evidence as a general guide to good procedure. However, that which is ultimately required is judicial fairness, and that which is fair in a given situation depends on the circumstances.” 16

[18] Mr Nemcic’s written witness statements were extensive. He gave his evidence conscientiously and in a clear and confident manner. He appeared well-prepared, comfortable with the surrounds of a court room and was considered in his answers. He professed clear recall. On the critical issue of what he did with the tally sheets and summary tally sheets on 31 March 2017, his denial of misconduct was direct but, when pressed, his evidence was not given as confidently and manifest some inconsistencies and generalities.

[19] Ms Feige gave her evidence nervously. She was extensively questioned on her actions and motivations, and appeared intimidated by cross examination. Her recall remained generally consistent throughout her cross examination, but not exclusively so. She was reluctant to concede ground and exhibited a heightened degree of defensiveness when her recall or motives were called into question. She remained reasonably firm on key facts. I do not consider her to have been an unreliable witness despite her evidence containing some uncertainties and inconsistencies.

[20] Ms Southall was a poor witness. Her demeanour ranged from hesitancy to confusion and this manifest in inconsistencies in evidence and recall, particularly under lengthy cross examination. She appeared uncomfortable in the surrounds of a court room and the witness box. She admitted poor memory on some issues 17 and was plainly wrong on others.18 Whilst these factors lead me to treat her evidence with a heightened degree of caution, they do not lead me to conclude that her version of events, and particularly the events of 30 and 31 March 2017, was unreliable as a whole. Simply because a witness does not present well, does not mean that their evidence about critical events is not implausible. I do not consider that Ms Southall was trying to mislead the Commission. Ms Southall’s presentation and inconsistencies in recall lead me to treat her evidence with a higher degree of scrutiny than I might otherwise (for example, by considering whether it is corroborated by other oral or documentary evidence, or inherently plausible) but not reject it outright.

[21] Mr Holcombe presented his evidence professionally and conscientiously. He was cross examined at length on his conduct of the disciplinary investigation and his findings and conclusions. He gave evidence in a considered manner, though some answers were lengthy and defensive when questioned about connections between his report (the Holcombe Report) and the (earlier) Will Report. On factual matters, I consider Mr Holcombe a witness of truth. His evidence of fact (as distinct from his conclusions or assumptions) can be generally relied upon.

[22] Mr Nicholl was an impressive witness whose evidence I consider reliable. He gave evidence with clarity and confidence. His recall was generally specific, and by and large was prepared to concede appropriate ground in cross examination where contrary propositions or facts were put to him. He held ground where he was confident of the facts or his primary evidence.

[23] Mr Courtney was also a reliable witness, though cautious in his answers. His recall of some events was less instinctive and less confidently expressed than Mr Nicholl.

[24] This is not a matter where, in all instances, I prefer the Applicant’s evidence over others, or the evidence of others over the Applicant. The very different nature of the witnesses before me, and the breadth of evidence as a whole make a broad-brush approach of that kind inappropriate.

[25] Ultimately, where I need to decide key factual matters, I do so based on the aforementioned considerations according to the relevant subject matter and the evidence and material before me. This is the approach I particularly take when making findings concerning the markings and alterations made to tally sheets and summary tally sheets on 31 March 2017, and disputed evidence relating thereto.

The Facts

Employment History

[26] Mr Nemcic had a lengthy career over 35 years in the South Australian public sector (25 years) and Australian public sector (10 years), until his dismissal. He is now 55 years of age.

[27] He obtained degrees in management and business in 1990 and 1996. With the support of the AEC (including fee reimbursement) in October 2017 (two months prior to dismissal) he commenced part-time studies for a Masters of Business Administration. Mr Nemcic is not legally qualified though has worked in and around institutions associated with the administration of justice.

[28] In the South Australian public sector, Mr Nemcic rose to positions which included Chief Clerk of the Supreme Court of South Australia, Secretary of the Legal Practitioners Disciplinary Tribunal, Registrar of the Coroner’s Court, administrative Coroner and Deputy Registrar of the District Court.

[29] His ten years of service between February 2007 and December 2017 was entirely with the AEC in South Australia. Between 2007 and 2010 he worked in the AEC’s general electoral division. In 2010 he moved to the AEC’s newly formed Industrial and Commercial Elections Unit (the SA ICE Unit). Except for the 2010 federal election (and other short periods) he worked continuously in the SA ICE Unit between 2010 and 2017.

[30] Whilst working at the AEC, he was returning officer for multiple federal electorates (Boothby, Sturt, Wakefield and Barker).

[31] He had a heart attack in August 2016 requiring a six week recuperation.

[32] Upon returning, in October 2016 he was appointed manager of the SA ICE Unit.; a position he continued to hold until dismissal. He was an APS6 employee on a salary of $89,950 plus 15.4% superannuation and other benefits.

[33] He was dismissed for conduct in breach of the APS Code of Conduct on 13 December 2017.

[34] Outside work, he is an accredited umpire with the South Australian Cricket Association (Level 2).

[35] He is also a Justice of the Peace, an official Police Volunteer and a co-ordinator for Neighbourhood Watch.

AEC Operations

[36] The AEC is an independent statutory body established under the Commonwealth Electoral Act 1918. Its primary purpose is to conduct national elections for membership of the parliament of the Commonwealth of Australia. It also performs “such other functions as are conferred on it by or under any law of the Commonwealth”. 19 It is a listed entity under the Public Governance, Performance and Accountability Act 2013.20

[37] The AEC is a “Commonwealth authority” as defined in section 12 of the FW Act. As such, it is a “national system employer” under the FW Act and thereby subject to the provisions of that Act including its unfair dismissal provisions. 21

[38] The FW Act and the Fair Work (Registered Organisations) Act 2009 (the FW RO Act) require the AEC to conduct industrial elections. These include elections for protected action ballots 22 and for the appointment of officers of registered organisations23. To undertake these tasks, the AEC has administratively established an Industrial and Commercial Elections Unit, including the SA ICE Unit.

[39] At the relevant times (30 and 31 March 2017, and at the date of dismissal 13 December 2017) the SA ICE Unit comprised four persons: Mr Nemcic as Manager and three employees Ms Feige, Ms Southall and Mr Langtry, all of whom administratively reported to Mr Nemcic. Until February 2017 there was a separate position of SA ICE Co-ordinator but when the incumbent left, Mr Nemcic assumed those duties.

[40] Elections for offices of industrial associations conducted by the AEC ICE Unit require the appointment of returning officers, as prescribed by the rules of those organisations. In the SA ICE Unit, returning officers could be, and were drawn from the four persons working in the Unit. For a particular election, the practice was that a returning officer would be appointed by an AEC Operations Manager (a more senior officer than Mr Nemcic) usually after consultation with Mr Nemcic (and the ICE Co-ordinator when there was one).

[41] Where an officer of the AEC is appointed as a returning officer for a particular election, they assume the lawful rights and responsibilities of a returning officer under the terms of their appointment. Whilst they continue to administratively report to their manager and others in the AEC hierarchy, and must comply with AEC policies including those concerning the work of a returning officer, they exercise the independent authority of a returning officer. That authority cannot be circumvented or subject to unlawful direction. A returning officer has the power and obligation to declare the results of an election. I return to these issues later in this decision.

[42] Persons employed by the AEC are employees of the Australian Public Service (APS) under the Public Service Act 1999. Compliance with the APS Values, APS Employment Principles and the APS Code of Conduct are obligations of an APS employee, including AEC officers. They are also obligations of an APS employer.

[43] The APS has established procedures to investigate and sanction alleged breaches of employment obligations by Commonwealth public servants. These are contained in an Australian Public Service Commission document ‘Handling Misconduct: A Human Resource Manager’s Guide’ (the APS Misconduct Guide). 24

[44] The AEC has also produced two additional documents of its own: ‘AEC Procedures for Determining Breaches of the APS Code of Conduct and Sanctions’ (‘the AEC Breach Procedures’) 25 and the ‘AEC Guide: Inquiring into and determining an alleged breach of the Code of Conduct’ (‘the AEC Breach Guide’).26

[45] The evidence of Mr Nicholl and Mr Courtney was that each considered the AEC bound to comply with the AEC Breach Procedures. However, they both took the view at the relevant times, and in their evidence, that the AEC Breach Guide and the APS Misconduct Guide were guides only and, whilst relevant, did not impose mandatory obligations.

The Police Federation of Australia (South Australian Branch) Industrial Election

[46] The Police Federation of Australia (South Australian Branch) (PFA SA) is a State branch of an employee association registered under the FW RO Act.

[47] The FW RO Act and the rules of the PFA SA require offices to be elected from time to time. Those elections are required to be conducted by the AEC.

[48] In March 2017 a contested election for offices of the PFA SA was conducted by the AEC in accordance with the FW RO Act and the rules of the organisation. Sixteen eligible candidates nominated for eight positions on the PFA SA committee. Nominations closed on 27 February 2017.

[49] The election was conducted by the AEC’s SA ICE Unit. In December 2016 an AEC operations manager appointed Ms Jennifer Southall as Returning Officer for the PFA SA election after consulting Mr Nemcic and the (then) ICE Co-ordinator. Ms Southall was inexperienced. She had only worked at the AEC (in the SA ICE Unit) for six months (since May 2016). In that time she had worked on three or four industrial ballots and one commercial election but not one of these was a contested election. She had not previously been a returning officer. This was known by Mr Nemcic. 27

[50] As her manager, Mr Nemcic spoke to Ms Southall upon her appointment as a returning officer for the PFA SA election and provided general information, advice and guidance on the work she was required to undertake. 28 He recommended she familiarise herself with the rules of the PFA SA. He made himself available to provide guidance and assistance to Ms Southall during the conduct of the election (December 2016 until March 2017). From time to time Ms Southall sought and received advice, information and guidance from Mr Nemcic.29

[51] Once nominations closed for the PFA SA ballot it became apparent that a contested election was required. Ms Southall reported this fact to Mr Nemcic. Mr Nemcic provided further guidance on preparing for and conducting a contested industrial election. From time to time during March 2017 they had further discussions about the ballot, usually at the instigation of Ms Southall. 30

[52] One such discussion concerned the preparation and printing of ballot papers. Ms Southall initially told Mr Nemcic that the number of persons to be balloted was 476. In fact, the number was 4,764. When Ms Southall realised her error, she advised Mr Nemcic who assisted her to secure internal approval for external printing of ballot papers given the quantum required. 31

[53] The ballot closed on 29 March 2017. Mr Nemcic and Ms Southall had a further discussion shortly before the close of the ballot about the logistics of counting the ballot papers. Mr Nemcic advised Ms Southall, based on his experience, that she could expect about 1,000 ballots to be cast and require counting, and that this volume would require AEC staff from outside the SA ICE Unit to be seconded to assist the process. He suggested three names (Eames, Dewett and Stephens). He advised that her role should be to supervise the count but not be an actual counter of ballots. 32

[54] Ms Southall secured approval for the assistance of the three staff from outside the ICE Unit. However, she decided to also be a ballot paper counter in addition to overseeing the count.

The Count and First Declaration 30 March 2017

[55] The count commenced on the morning of Thursday 30 March 2017 in the ICE Scrutiny Room.

[56] Ms Southall had requested and been allocated the three extra employees to assist the count. She tasked the remaining two employees in the SA ICE Unit (Feige and Langtry) as counters. Considering that she needed three counting teams of equal numbers, she made herself a counter. She grouped the counting teams as follows:

• Southall / Dewett

• Langtry / Eames

• Feige / Stephens

[57] Each counting team sat at a separate table in the counting room. There were 1,018 ballot envelopes. All were opened, ballot papers were removed and after informal votes were put aside 999 formal ballot papers required counting. The formal ballots were sorted into bundles of 25 (39 groups plus one group of 24 ballots). Southall and Dewett counted 14 bundles. Langtry / Eames and Feige / Stephens each counted 13 bundles.

[58] Each group was provided with a Group Tally Sheet. The counting method required yes ballots for each candidate to be counted and the total yes votes for each candidate to then be handwritten by a group member on the Group Tally Sheet.

[59] Mr Nemcic was not a counter of these ballot papers, on that day or at all. He arrived at work around lunchtime on 30 March 2017 and noticed Ms Southall in the ICE Scrutiny Room with what looked like a count underway but incomplete. It was apparent the other counting employees were at lunch 33. Ms Southall told him that a problem had arisen; at least one of the groups was using a different counting and recording method to the others. He expressed frustration and believed that could have been avoided if Ms Southall had taken his earlier advice to simply oversee the count. He told her that the problem could be rectified during the afternoon count by bringing the out of line group into consistency with the others.

[60] Mr Nemcic exited the room as counting staff returned from lunch, and retreated to his work station in the general office area.

[61] Counting continued after lunch, as the Langtry / Eames group had not finished their counting. Once all groups had counted their ballots and recorded totals on their Group Tally Sheet, Ms Southall approached a whiteboard on which she had written the names of each candidate. A member of each group called out the total yes votes recorded by that group for each candidate. Ms Southall wrote the spoken numbers alongside each candidate’s name. Based on the numbers written on the whiteboard, Ms Feige and Mr Eames then added candidate totals, advised Ms Southall and Ms Southall wrote and underlined those totals on the whiteboard alongside each name.

[62] Mr Eames took a photograph of the whiteboard, which he emailed to Ms Southall. 34 Ms Southall considered the count completed. She packed up the ballot papers, stored them and returned to her desk.

[63] Mr Nemcic left work for the day about 3.30pm. He says that during the afternoon he told Ms Southall that it would be best not to declare the results that day even though the PFA SA were pressing for an outcome. He told her that he wanted to check the declaration before it was issued. 35 Ms Southall’s evidence is that there was no such conversation.36 Although little turns on this disputed fact, on this issue I prefer Mr Nemcic’s evidence. It was a more reliable recall.

[64] On returning to her desk, Ms Southall noticed missed calls from the PFA SA that afternoon, seeking ballot results. She decided to declare the results that day. She used an AEC computer system (Event Manager) to prepare the declaration. She produced the declaration by imputing data from the whiteboard totals. Once complete, she asked Mr Langtry to cast his eye over the declaration, which he did (as Mr Nemcic had left for the day). She then signed a declaration dated 30 March 2017 as the returning officer and sent it by email to the Secretary of the PFA SA, Mr Scheffler. She then went home.

[65] Unknown to Ms Southall, data in the declaration was incorrect. There had been two errors in the whiteboard data. The Langtry / Eames team had forgotten to call out votes for 5 of their 13 bundles of ballots; and the vote for candidate Hern had been recorded on the whiteboard as 88 when it should have been 83.

The Events of 31 March 2017 and the Second Declaration

[66] Upon arriving at work on Friday 31 March 2017, Ms Southall was informed by Mr Scheffler of the PFA SA that the count did not balance. 37 He (correctly) told her that the total of the yes votes of candidates needed to reconcile with the total number of formal votes counted (999 formal ballots multiplied by 8 candidates equalling 7,992 votes). Yet Ms Southall’s declaration fell short of that number.

[67] Ms Southall, alarmed and upset 38, informed Mr Nemcic as soon as he arrived for work (about 930am) and sought guidance. He advised her to recheck her paperwork using the tally sheets. He explained that a declaration needed to reconcile with total formal votes cast. He did not suggest a recount of ballot papers, considering that unnecessary at that point.39 For convenience, I describe this as Nemcic / Southall Discussion 1.

[68] Ms Southall located Ms Feige and the two went into the ICE Unit Scrutiny Room to check the paperwork. Mr Nemcic relocated himself from the general office area to a private meeting room (with door closed) to catch up on outstanding work.

[69] Ms Southall prepared a summary tally sheet (the ‘Southall Summary Tally Sheet’) from the whiteboard photograph and then directly from the group tally sheets. 40 She and Ms Feige checked and rechecked the data on the Southall Summary Tally Sheet at least three occasions41 over at least an hour42 but the candidate totals still did not reconcile with total formal votes cast.

[70] About 1030am, in the general office area, a second discussion occurred between Mr Nemcic and Ms Southall (Nemcic / Southall Discussion 2).The content is not in material dispute. 43 Ms Southall told Mr Nemcic that she and Ms Feige had (without accessing the ballot papers) checked and rechecked the group tally sheets and the Southall Summary Tally Sheet against the declaration but the count still did not reconcile. She said that they had discovered that the Langtry / Eames team had not included all their bundles, and these additional votes had now been added to the totals. She said that an error on recording the number of votes for candidate Hern had also been found. She said that she and Ms Feige had altered the Southall Summary Tally Sheet with the corrected data but that even with those corrections the total number of votes for candidates remained nine short of the required reconciliation figure of 7,992.

[71] At that point, Mr Nemcic agreed to become actively involved. He told Ms Southall that he would be prepared to look over the paperwork. Ms Southall agreed. Ms Southall handed Mr Nemcic the Group Tally Sheets, the Southall Summary Tally Sheet and the AEC file. He was not given access to the ballot papers. She did not give Mr Nemcic (nor inform him) about the whiteboard photograph, as she had that morning found it contained an error for candidate Hern which she had corrected on the Southall Summary Tally Sheet.

[72] Mr Nemcic took possession of the tally sheets and file, and walked into the small meeting room alone and closed the door. Both Ms Southall and Ms Feige saw Mr Nemcic do so.

[73] Later that morning Mr Nemcic reappeared and spoke to Ms Southall in the general office area (Nemcic / Southall Discussion 3). There is varying evidence over the length of time Mr Nemcic was alone in the small meeting room with the tally sheets. He says it was about half an hour, as he continued to do other work. Ms Feige says it was five or ten minutes. 44 Ms Southall’s evidence was that it “was not a very long time”45 but could have possibly been half an hour.46 It is more likely than not that Mr Nemcic, having recognised the seriousness of the issue and observing that Ms Southall was upset, attended to the matter with some urgency without putting it aside for other work. Given my subsequent findings about the conduct of Mr Nemcic, I find that it was at least ten minutes but not more than thirty. In any event, my findings do not turn on whether it was five, ten or thirty minutes.

[74] The Nemcic / Southall Discussion 3 commenced with Mr Nemcic having exited the small meeting room and approaching Ms Southall in the general office area whilst holding the tally sheets and AEC file. The discussion was not witnessed by Ms Feige (who had gone to the bathroom). The essence of the conversation is not in dispute. It started with Mr Nemcic saying “I found the problem and it’s fixed”. 47 He told Ms Southall that there had been an error in the transposition of a figure onto the Southall Summary Tally Sheet. He spoke in general terms only.48 Ms Southall noted that a figure at the base of the second column on the Southall Summary Tally Sheet had been increased by nine votes, thus making the count reconcile. She also noticed that Mr Nemcic had produced a completely new summary tally sheet entirely in his handwriting (I refer to this as ‘the Nemcic Summary Tally Sheet’). He told Ms Southall that she can issue a second declaration of results based on the count that now reconciled, and provided some “initial assistance”49 in doing so.

[75] Ms Southall did not ask Mr Nemcic which figure had not been transposed correctly. Her evidence was that she “trusted his experience when he told me that the count was balanced”. 50 This is consistent with Mr Nemcic’s evidence that he “without further explanation proceeded to tell her what she needed to do”51.

[76] Ms Southall then prepared and issued a second declaration of results for the PFA SA election, dated 31 March 2017. 52 Unlike the first declaration, the body of the declaration included a figure for “Total votes”. That figure was 7,992. The second declaration was sent to the PFA SA.

[77] The results of the second declaration did not alter the eight candidates who were elected against the other eight candidates who received lesser total votes. The same candidates were elected on both declarations albeit in different order.

[78] After issuing the second declaration Ms Southall shredded her hard copy of the whiteboard photo. Her evidence is that she did so “as the information was incorrect”. 53

The Allegation by Ms Feige

[79] Ms Feige returned from the bathroom shortly after the Nemcic / Southall Discussion 3. Ms Southall was holding the Southall Summary Tally Sheet. I accept Ms Feige’s evidence about this conversation. 54 It went as follows:

Ms Southall: John’s been here and fixed it. It’s now right

Ms Feige: What did we miss? What was our error?

Ms Southall does not reply

Ms Feige: Did John fudge those figures?

Ms Southall does not reply audibly but nods

Ms Feige: Did John really fudge those figures?

Ms Southall does not reply

Ms Feige looks at the Southall Summary Tally Sheet and observes some handwritten changes in dark blue pen.

[80] Either at that time or shortly thereafter a further discussion occurs between Ms Southall and Ms Feige:

Ms Feige: you have to tell Rebeccah MacDonagh (an AEC SA Operations Manager) what we believe John has done

Ms Southall: I can’t

[81] Some two weeks later, in advance of a meeting Ms Feige believed was to occur between AEC management and the PFA SA, Ms Feige again told Ms Southall that Ms MacDonagh should be informed of what she (Ms Feige) believed had occurred. Ms Southall did not do so, telling Ms Feige words to the effect “I could not say anything to management unless I knew for sure that Mr Nemcic had fudged the figures” 55. At around this time Ms Feige also spoke to Ms McDonough and in general terms advised of her concerns.56

[82] In mid-May 2017 Ms Feige, continuing to harbour unease and having heard the matter had been escalated to the AEC’s national office, decided to tell the senior AEC SA Director of Operations (Mr Hawes) of her concerns with Mr Nemcic’s behaviour during the PFA SA election. Mr Hawes asked Ms Feige to put her concerns in writing. She agreed to do so. She sent him a one page note 57 dated 23 May 2017.

[83] Ms Feige’s file note to Mr Hawes claimed that Ms Southall had confirmed to her that Mr Nemcic had “fudged” the figures.

The PFA SA Complaint

[84] On 3 April 2017 the PFA SA President (Mr Carroll) wrote to the AEC drawing attention to discrepancies between the first and second declarations, observing that “the results provided by the returning officer provides me with no confidence in the legitimacy of the result”, and seeking an urgent meeting. 58

[85] The correspondence was referred to Mr Nemcic. On 5 April 2017 Mr Nemcic asked Ms Southall to prepare a chronology of the conduct of the PFA SA election for the AEC file. She did so in a document titled ‘Scrutiny Report and Timetable’. 59

[86] Over the following two weeks Mr Nemcic had a number of telephone discussions with the PFA SA Secretary and President. The PFA SA sought a recount of ballots in the presence of a PFA SA scrutineer. Mr Nemcic advised senior officers of the AEC (in SA and the national office) that a recount could only occur at the request of a candidate, not the Secretary or President of the PFA SA.

[87] A formal reply to the PFA SA’s letter of 3 April 2017 was sent under the hand of the AEC South Australian State Manager dated 11 April 2017 60. That reply offered an apology, advised that 692 votes had not been taken into account in the first declaration due to “an administrative oversight by a member of staff who failed to account for one tally sheet of votes”, that the second declaration “can be relied on” and that the AEC SA would be willing to provide the PFA SA “a briefing”. For reasons outlined later in this decision, this document was selective and misleading.

[88] On 12 April 2017 the PFA SA again spoke to Mr Nemcic, indicating that the PFA had sought a recount not just a briefing. Mr Nemcic referred the PFA SA to the letter of 11 April, in which the State Manager of the AEC had offered a briefing not a recount.

[89] The PFA SA subsequently took up the offer of a briefing with the South Australian management of the AEC. That briefing was attended by Mr Nemcic and other SA managers, and in all probability Ms Southall. 61 The briefing resulted in the PFA SA taking no further action after receiving AEC reassurances along the lines set out in the letter of 11 April.

[90] During this period, Mr Nemcic made two formal notes 62 for the AEC file; one dated 4 April 2017 and one dated 12 April 2017. For reasons outlined later in this decision, the ‘Background Information’ in both of these file notes was selective and misleading.

The Will Report

[91] After receiving a copy of Ms Feige’s written note to Mr Hawes dated 23 May 2017, the State Manager of the AEC referred the issue to the AEC’s national office. It went to Mr Nicholl, the AEC’s Assistant Commissioner Corporate Services Branch.

[92] On 29 May 2017 the AEC’s Director of Employee Relations and Services (Ms Fuller) advised Mr Nicholl that an investigation would commence under the AEC Breach Procedures into possible breaches of the AEC Code of Conduct by both Mr Nemcic and Ms Southall.

[93] Those procedures provide a two-stage process for investigation; a preliminary investigation and, if warranted following the preliminary investigation, a full investigation.

[94] On 26 May 2017 the AEC appointed Mr Michael Will, a partner at national law firm HWL Ebsworth, to conduct the preliminary investigation.

[95] Mr Will interviewed Mr Hawes, Ms Southall, Ms Feige and Mr Nemcic. He re-interviewed Ms Southall and Ms Feige after interviewing Mr Nemcic. Mr Will perused AEC documents, including the tally sheets and summary tally sheets used and created on 30 and 31 May.

[96] Mr Will produced a report dated 3 July 2017 (the Will Report).

[97] Mr Will concluded “on balance I consider that there is sufficient evidence for both Mr Nemcic and Ms Southall to be subject to a code of conduct investigation in relation to the “fudging” issue raised by Ms Feige as their behaviour on and after 31 March 2017 may potentially be a breach of s13(1), (2), (4) or (11) (the APS Code of Conduct) of the Public Service Act 1999.” 63 He recommended that course.

The Holcombe Report

[98] On 19 July 2017 the AEC’s Acting Director People Services Branch (Ms Garrett) advised Mr Nicholl of Mr Will’s report and recommendation. She sought approval for the appointment of a breach and a sanction delegate under the AEC Breach Procedures, and for the appointment of an external investigator. 64

[99] On 20 July 2017 Mr Nicholl made recommendations to and sought the approval of the Acting Electoral Commissioner Mr Pope to the following: the appointment of Mr Nicholl as the breach delegate and the appointment of the AEC First Assistant Commissioner Capability Mr Courtney as the sanction delegate.

[100] On 21 July 2017 Mr Pope made these appointments.

[101] In August 2017 Ms Garrett advised Mr Nicholl that Mr Lex Holcombe a partner at national law firm HWL Ebsworth would conduct the investigation. Mr Holcombe had not previously done work for the AEC. Mr Holcombe was notified by Ms Garrett of his appointment on 22 August 2017, and provided background information including the Will Report. 65

[102] In September 2017 Mr Holcombe attended the South Australian office of the AEC and interviewed the following persons: Ms Southall and Mr Nemcic (6 September) and Ms Feige, Mr Eames and Ms Dewett (14 September).

[103] Mr Holcombe provided his report to the AEC on 30 October 2017. The Holcombe Report made findings and recommendations concerning both Mr Nemcic and Ms Southall.

[104] With respect to Mr Nemcic, he found that Mr Nemcic “fudged” the figures for the PFA SA election. He found “that the allegation against Mr Nemcic has been made out and he did what was alleged.” 66 He concluded that Mr Nemcic had breached the APS Code of Conduct. He made non-binding recommendations. He recommended a sanction “at the higher end of the scale” being reduction in classification, re-assignment of duties or reduction in salary. He also stated that “termination of Mr Nemcic’s APS employment under paragraph 15(1)(a) of the Public Service Act is also an option.”67

[105] With respect to Ms Southall, he found that she did not act dishonestly or deliberately collude with Mr Nemcic but that she “should have spoken to the Operations Manager even if she was unsure of the circumstances” and that she did “prevaricate in her response to the allegation of fudging by Mr Nemcic.” 68 He concluded that Ms Southall had breached the APS Code of Conduct. He recommended a sanction “at the lower end of the scale” in the form of a reprimand.69

[106] The Holcombe Report was provided to Mr Nicholl as the breach delegate.

[107] Neither the Will Report nor the Holcombe Report was provided to Mr Nemcic prior to his dismissal.

The Breach Decision

[108] Mr Nicholl considered Mr Holcombe’s report. Having reviewed the evidentiary material referred to by Mr Holcombe and the findings of his report, he adopted those findings and concluded that Mr Nemcic had committed breaches as alleged.

[109] On 14 November 2017 Mr Nicholl wrote to Mr Nemcic advising the outcome of the investigation. He advised that he had found his conduct in breach of the APS Code of Conduct. He formally determined that the allegations were substantiated and that the behaviours are “in breach of sections 13(1), 13(2) and 13(11) of the Public Service Act 1999”. 70

[110] Mr Nicholl, having made his determination, referred the matter to the sanction delegate Mr Courtney.

The Dismissal (Sanction) Decision

[111] On 15 November 2017 Mr Courtney was formally requested to exercise his role as sanction delegate and provided background information including Mr Nicholl’s determination and the Holcombe Report. 71

[112] Mr Courtney formed the view that termination of employment was the appropriate sanction.

[113] On 4 December 2017 Mr Courtney wrote to Mr Nemcic 72 advising that he (Mr Courtney) considered Mr Nemcic’s actions “sufficiently serious to impose a sanction” and that he was “considering imposing the sanction of termination of employment”. He requested Mr Nemcic provide a submission on sanction within seven days including any supporting information.

[114] On 4 December 2017 Mr Nemcic was placed on leave with pay while Mr Courtney considered the matter.

[115] On 11 December 2017 Mr Courtney received a written response from Mr Nemcic. 73 Mr Nemcic denied any conduct in breach of the APS Code of Conduct. He put forward multiple issues in mitigation.

[116] On 11 December 2017 Mr Nemcic made an application to the Merit Protection Commissioner (the MPC) for a review of Mr Nicholl’s decision as breach decision-maker. 74

[117] The MPC is is a statutory office-holder who conducts independent reviews of employment actions and merit-based decisions by agencies of the Australian Public Service.

[118] On 12 December 2017 Mr Courtney advised Ms Garrett that he had decided termination of Mr Nemcic’s employment was the appropriate sanction, and requested a draft letter be prepared for his signature.

[119] On 13 December 2017 at 10.59am (AEDT) the Office of the MPC wrote to Mr Nemcic acknowledging receipt of his application and advising that it has “provided a copy of your application to the Australian Electoral Commission and requested that they provide this office with the relevant documentation in relation to the decision in question.” 75 It attached a letter of that date from the Office of the MPC to the AEC.

[120] On 13 December 2017 at 12.50pm (AEDT) Mr Courtney sent Mr Nemcic a letter advising that his employment had been terminated effective from the close of business 14 December 2017.

[121] Mr Courtney’s letter of termination included the following: 76

“Any employee whose APS employment has been terminated for misconduct cannot apply for review of that decision under s33 of the Public Service Act 1999, but may have access to the remedies under the Fair Work Act 2009 by making an application to the Fair Work Commission.”

[122] Mr Nemcic was advised by the MPC on 22 December 2017 that his application was no longer reviewable by the MPC given the termination of his employment. 77

[123] Mr Nemcic commenced proceedings in the Commission on 3 January 2018.

Impact of Dismissal

[124] Other than a brief period of casual work with the Electoral Commission of South Australia during the 2018 State election, and some cricket umpiring (which is seasonal in nature), Mr Nemcic has not secured permanent work since his dismissal. He says that the impact of the dismissal has been profound and devastating career-wise, financially and personally.

[125] Being a person who values his integrity and rose to positions associated with the administration of justice he finds the impact of a code of conduct breach relating to the conduct of an election to be an affront to his reputation and personally distressing and embarrassing.

[126] He foresees no real opportunity to resume a career in either the Australian or State public sectors given that a breach of this kind is on his record.

[127] He also believes that a new career in the private sector is unlikely given the combination of his age (55 years), the perception he believes is held about career public servants and his lack of work experience in the private sector.

[128] He says he has no capital to invest in self-employment. In short, he considers himself unemployable.

[129] Dismissal has also had the effect that his part-time studies for a Masters of Business Administration have not been continued, as he no longer receives fee subsidy from his employer. He was unable to claim reimbursement of $3,350 tuition fees for study undertaken.

[130] He has superannuation but cannot access those funds until age 58. He had intended working until age 65. If he accesses his superannuation at age 58 he will compromise his retirement funds much earlier than intended.

[131] On termination, he was paid accrued long service leave and accrued annual leave. He is not eligible for Newstart Allowance due to his spouse’s income. 78

Consideration

[132] No jurisdictional issues arise in determining the application. Mr Nemcic was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. He served the statutorily required minimum employment period (section 382(2)(a)) and his annual rate of earnings did not exceed the high income threshold (section 382(2)(b)(iii)). His employer was a “national system employer” within the meaning of section 14 of the FW Act in that the AEC was a “Commonwealth authority” as defined in section 12. He was dismissed on 13 December 2017. The dismissal was not a case of genuine redundancy.

[133] The issues for determination are simply put: was Mr Nemcic’s dismissal “harsh, unjust or unreasonable” having regard to the considerations in section 387 of the FW Act and, if so, is it appropriate to order a remedy by way of reinstatement or compensation?

[134] Section 387 of the FW Act provides as follows:

“•  Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[135] I am under a duty to consider each of the criteria in section 387 of the FW Act, 79 and now do so.

[136] In so doing, I take into account all of the evidence and submissions before me. Given the breadth of issues raised, in this decision I specifically deal with evidence that is most material to arriving at a decision in this matter. Some evidence is not referenced, not because I have not considered it, but because I do not need to make specific reference to it. Similarly, I have dealt with each primary submission but not every angle of each submission, not because they have not been considered but because doing so would add excessive length to these reasons.

Valid Reason (section 387(a))

[137] An employer must have a valid reason for the dismissal of an employee. It is the Commission’s task to determine if a valid reason exists. The reason(s) should be “sound, defensible and well founded” 80 and should not be “capricious, fanciful, spiteful or prejudiced.”81

[138] In a conduct-based dismissal, except where the Small Business Fair Dismissal Code applies (not in this matter), the test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. The Commission must itself make findings as to whether the conduct occurred based on the evidence before it. 82

[139] Where an employee is dismissed for misconduct, an evidentiary onus rests on an employer to establish that, on the balance of probabilities, the misconduct occurred. 83

[140] It is also well settled that where, as in this case, an employer dismisses summarily for serious misconduct, the standard of proof requires “a proper level of satisfaction” 84 that the conduct did in fact occur having regard to the seriousness of the allegations. This is commonly referred to as the Briginshaw standard85. This requires more than mere satisfaction that it is more likely than not that conduct occurred. Rather it requires a proper degree of satisfaction that the conduct did in fact occur. Having regard to the nature of the allegations against Mr Nemcic and the seriousness of potential findings I am satisfied that the Briginshaw standard is the approach to be applied in this matter.

[141] In applying that approach I recognise that the standard of proof remains a civil standard. The allegations are allegations of improper interference with an electoral count contrary to duties under a contract of employment. Serious though they are, they are not criminal charges. I adopt the approach set out in the joint judgment of Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others: 86

“2. The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...”.

There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading.” [footnotes omitted]

[142] When considering applications alleging unfair dismissal, this approach has been adopted by the Federal Court of Australia 87 and by full benches of this Commission.88

[143] In this matter the employer made a decision following a formal process of investigation. For different reasons, counsel for both parties placed considerable emphasis on the investigation, its process and its findings. Factual matters before the investigator(s) and decision-maker(s), to the extent they are before me (and they were brought into evidence) are relevant and form part of the evidentiary matrix on which I determine this matter. However, that an investigator has made findings based on the same or similar body of evidence is not relevant to the factual findings I make about conduct. That an investigation occurred and the nature of findings made by an investigator may explain an employer’s decision and may be relevant to other considerations in section 3987(b) to (h) (such as, procedural fairness), but they are not relevant to the findings I make as to whether a valid reason for dismissal existed within the meaning of section 387(a). The findings of fact I make are based on the evidence before me, and the standard of proof required of me.

[144] At this juncture, I explain my use of terminology with respect to three matters.

[145] Firstly, the word “fudged”. This word is used extensively in the evidence and submissions before me. It is the word used by the AEC to frame the central allegation against Mr Nemcic. In the materials before me it is not used as a word of art. It is used to mean the alteration or recording of a count of votes in an election for no proper purpose or reason. In this decision I use the word in that sense.

[146] Secondly, a distinction exists between a “ballot paper” and a “tally sheet” (whether a tally sheet of a group of counting staff or a summary tally sheet of all those groups). A ballot paper is completed by an elector. A tally sheet is completed by an officer or officers of the AEC as part of the process of conducting a count of ballot papers and in advance of a result being declared. Where I use those words, I do so deliberately.

[147] Thirdly, my use of the word “overwrite. The evidence before me reveals that certain numerals on tally sheets have been “overwritten”. In this decision I use the word “overwritten” (or the noun “overwrite”) in the sense that a pre-existing numeral recorded by hand was written on top by hand. Where I use the word “overwrite” or “overwritten” I draw no distinction whether the overwrite repeated the pre-existing numeral(s) or whether the overwrite altered the pre-existing numeral(s). However, where I wish to make this distinction I refer to a “pure overwrite” to describe a handwritten overwrite which did no more than simply repeat the same pre-existing numeral; and I refer to an “altering overwrite” to describe a handwritten overwrite which altered the pre-existing numeral or numerals beneath it.

The ‘Fudging’ of the Jenny and Les Tally Sheet

[148] The primary factual issue requiring determination in this matter is whether Mr Nemcic improperly altered (“fudged”) and recorded tally sheet figures for the PFA SA election so as to make votes allocated to candidates reconcile with total formal votes cast.

[149] This is the central misconduct allegation relied upon by the employer.

[150] I refer to “tally sheet figures” deliberately and in the plural. There are three tally sheets the employer claims to have been improperly altered or recorded. The second and third tally sheet alterations and recordings are said to be consequential on the first.

[151] Firstly, the Group Tally Sheet prepared by the counting group of Ms Southall and Ms Dewett on 30 March 2017. I refer to this as the ‘Jenny and Les Tally Sheet.’ The employer claims that Mr Nemcic improperly altered the count for candidate Tappin on this tally sheet.

[152] Secondly, the ‘Southall Summary Tally Sheet’ prepared by Ms Southall in the presence of Ms Feige on the morning of 31 March 2017. The employer claims that Mr Nemcic improperly altered and recorded the totals on this tally sheet consequential on the alteration he made to the votes for candidate Tappin on the Jenny and Les Tally Sheet.

[153] Thirdly, the ‘Nemcic Summary Tally Sheet’ that was prepared by Mr Nemcic on 31 March 2017. The employer claims that Mr Nemcic improperly recorded totals on this tally sheet consequential on the alteration he made to the votes for candidate Tappin on the Jenny and Les Tally Sheet and the Southall Summary Tally Sheet.

[154] The factual issue to be determined is what alterations or markings, if any, did Mr Nemcic make to each of the Jenny and Les Tally Sheet, the Southall Summary Tally Sheet and the Nemcic Summary Tally Sheet.

[155] The question which then arises is whether those alterations or markings made by Mr Nemcic, if any, were improperly made.

[156] The case against Mr Nemcic, that he improperly altered (“fudged”) the Jenny and Les Tally Sheet count for candidate Tappin is based on circumstantial evidence. It is alleged that he did so whilst alone in the small meeting room on the morning of 31 March 2017. There is no direct evidence of Mr Nemcic having done so. Although the room has a glass front, no-one else entered the room or was in the room at the time. No-one witnessed Mr Nemcic doing so, if he did so.

[157] Given my findings (below) concerning persons who had access to the Jenny and Les Tally Sheet that morning, I conclude that the only persons with practical opportunity to alter the count of votes cast for candidate Tappin on the Jenny and Les Tally Sheet were Mr Nemcic and Ms Southall. I find that Ms Feige was not alone in possession of that tally sheet that morning. When she had access to it, she was in the presence of Ms Southall, jointly undertaking the re-checking. I find that she was not in collusion with Ms Southall. I have found that she was alarmed at what she believed had occurred (the fudging) when it came to her attention. I have found that she wanted Ms Southall to report the fudging, then stewed on the matter for a number of weeks and then reported her concerns to Mr Hawes. These are not the actions of a person who fudged the count. Ms Feige did not do so.

[158] Mr Nemcic denies on oath that he did so. Ms Southall also denies, on oath, that she did so. I consider neither denial weightier than the other. I determine this issue not on the basis of denials but on the basis of my findings of fact and the conclusions drawn from those facts.

[159] The Commission has in evidence the originals of each of these three tally sheets: the Jenny and Les Tally Sheet, the Southall Summary Tally Sheet and the Nemcic Summary Tally Sheet. 89

[160] It is not denied by Mr Nemcic that all of the handwriting on the Nemcic Summary Tally Sheet is his. Nor is it denied that there is handwriting of no other person on that summary tally sheet. Nor is it denied that the handwriting on the Nemcic Summary Tally Sheet is in dark blue pen. Nor is it denied that he completed this summary tally sheet whilst alone in the work room on 31 March 2017.

[161] I find that all of the content of the Nemcic Summary Tally Sheet was written by Mr Nemcic in his hand by dark blue pen whilst alone in the work room on 31 March 2017.

[162] With respect to the Southall Summary Tally Sheet, there are four colours of pen markings: black pen, aqua pen, purple pen and dark blue pen. Mr Nemcic does not deny that each of the dark blue pen markings are his markings. Nor is it denied that he made each of these markings whilst alone in the work room on 31 March 2017. Ms Feige’s evidence, which I accept, was that the black pen and aqua pen markings were Ms Southall’s and that the purple pen markings were hers. 90

[163] There is some confusion in Ms Southall’s evidence as to the colour of pen she used on 31 March 2017. In her witness statement she says that she and Ms Feige had used “aqua and purple pens” not a dark blue pen. 91 Although initially in cross examination she said she used a blue pen, she subsequently described that pen colour as “bright blue”, “light blue” and as “aqua”.92 I am satisfied that the references in her evidence to using a “blue”, “bright blue” and “light blue” pen are in fact one and the same references to the aqua pen she used on that day. I accept her evidence that when she handed the Southall Summary Tally Sheet to Mr Nemcic on 31 March 2017 “there was no dark blue pen on any of that documentation”.93

[164] There is no confusion in Ms Southall’s evidence as to the colour pen she used on 30 March when the Jenny and Les Tally Sheet was prepared. She used black pen on that day. 94 Ms Southall was consistent in her evidence that she did not use dark blue pen on either 30 or 31 March.95

[165] This issue is material, and I make a finding on it.

[166] I find that Ms Southall did not use dark blue pen on 31 March 2017. I do so for two reasons. The first and primary reason is that I accept Ms Feige’s evidence that she was with Ms Southall that morning jointly checking the tally sheets and did not see her use a dark blue pen or mark any sheets with a dark blue pen (nor did she use a dark blue pen herself). I also accept Ms Southall’s evidence, that it was an aqua pen that she used in addition to a black pen. 96 Secondly, given that Mr Nemcic’s evidence was that he used a dark blue pen that morning, I find that all the blue pen markings on the Southall Summary Tally Sheet are Mr Nemcic’s. This was what Mr Nemcic informed the investigator, and is consistent with his evidence to the Commission.97

[167] Accordingly, I find that each of the dark blue pen markings on the Southall Summary Tally Sheet were written by Mr Nemcic in his hand whilst alone in the work room on 31 March 2017.

[168] With respect to the Jenny and Les Tally Sheet, there are four colours of pen markings: black pen, three visible aqua markings (one beneath the number 7 in the Manning box, one above the number 158 in the Walkley box and one above the number 7 in the Strange box) and multiple dark blue pen markings (including in the Tappin box).

[169] My findings concerning who marked the Jenny and Les Tally Sheet are set out below.

[170] Mr Nemcic’s case is not a denial that he made dark blue pen markings on the Southall Summary Tally Sheet and the Nemcic Summary Tally Sheet. His case is that he made those markings on those two summary sheets (including the markings related to candidate Tappin) because they were taken from the count numbers that already existed and which he observed on each of the Group Tally Sheets provided to him by Ms Southall, including the Jenny and Les Tally Sheet. In other words, Mr Nemcic says that the author or authors of the Southall Summary Tally Sheet had not accurately recorded (that is, transposed) data that from the Jenny and Les Tally Sheet for candidate Tappin to the Southall Summary Tally Sheet. He says that he altered the count number for candidate Tappin on the Southall Summary Tally Sheet to read “230” (from 221) because he had identified by observation that the figure of “230” for candidate Tappin was already on the Jenny and Les Tally Sheet at the time he was given that sheet by Ms Southall.

[171] It is for this reason that Mr Nemcic says that he told Ms Southall “I found the problem and it’s fixed” when he returned the tally sheets to her that morning. According to his evidence, by that he meant that he had located a failure by Ms Southall to correctly transpose the number 230 for candidate Tappin from the Jenny and Les Tally Sheet to the Southall Summary Tally Sheet. Given that, he says, the figure for candidate Tappin on the Southall Summary Tally Sheet was 221 when he received it, Ms Southall’s arithmetical calculations of the total formal votes allocated to candidates was nine short of the total formal candidate votes. Hence, he says he reconciled the vote by correcting a transposition error and then by consequential arithmetic the count reconciled. Thus, he denies improperly altering any figure.

[172] I find on the evidence, and this is not in dispute, that from the time Mr Nemcic took possession of the tally sheets from Ms Southall at about 1030am on 31 March 2017 until the time he returned those tally sheets to Ms Southall approximately 30 minutes later, that no person other than Mr Nemcic had access to them or was in possession of them. During this period they were solely in the control of Mr Nemcic and located in the small meeting room where he was situated. No other person entered that room during that period. I also find, and this is not in dispute, that at the time Mr Nemcic physically returned the tally sheets to Ms Southall that a figure of 230 for candidate Tappin was written (by overwrite) on the Jenny and Les Tally Sheet.

[173] It follows from this finding that if the Jenny and Les Tally Sheet did not record the number “230” for candidate Tappin at the time Ms Southall handed that (and other) tally sheets to Mr Nemcic that morning, then the alteration of the figure to 230 was made by Mr Nemcic and if done for no proper reason, the allegation of “fudging” is sustained.

[174] It equally follows that if the number “230” for candidate Tappin was already written (by overwrite or otherwise) on the Jenny and Les Tally Sheet at the time Ms Southall gave that (and other) tally sheets to Mr Nemcic that morning, then the alteration of that figure to 230 on the Jenny and Les Tally Sheet was not made by Mr Nemcic, and the allegation against Mr Nemcic of “fudging” cannot be sustained.

[175] Was the figure on the Jenny and Les Tally Sheet recording yes votes for candidate Tappin written as 221 (as the employer says) or was it written as 230 (as Mr Nemcic says) at the time Ms Southall gave that (and other) tally sheets to Mr Nemcic on the morning of 31 March 2017?

[176] I find that at the commencement of the day of 31 March 2017, the figure recording yes votes for candidate Tappin on the Jenny and Les Tally Sheet was 221. This was the figure recorded the previous day on the whiteboard for candidate Tappin from the Jenny and Les group. The whiteboard photograph is proof of that. Can the whiteboard data be relied upon to safely draw a conclusion that this was the figure on the Jenny and Les Tally Sheet the following morning? On the balance of probabilities, I consider it can to a high level of satisfaction. I take into account that the whiteboard data for candidate Hern from one counting group was incorrect (due to human error either incorrectly calling out the figure or Ms Southall misrecording the called out figure on the whiteboard) and that this was why Ms Southall did not give the whiteboard photograph to Mr Nemcic that morning. 98 However, it is much more likely than not that the figure of 221 on the whiteboard for candidate Tappin was correctly called out and recorded from the Jenny and Les Tally Sheet than being incorrect. The whiteboard records 48 group figures (3 groups across 16 candidates equalling 48 group figures). Only one of these 48 group figures (Hern in respect of the Jenny and Les counting group) was wrongly called out or recorded. Even taking into account that the Hern error came from the Jenny and Les group, at least 14 of the 16 whiteboard figures from that group were, without any shadow of doubt, correct. This makes it extremely unlikely that the figure of 221 on the whiteboard for candidate Tappin from the Jenny and Les group was incorrect.

[177] Ms Feige’s evidence is that the figure of 230 only appeared against candidate Tappin on the Jenny and Les Tally Sheet when Mr Nemcic returned the Jenny and Les Tally Sheet. Until then, she said the figure was 221. 99 Whilst this was her evidence I am not satisfied that either she or Ms Southall had a direct and independently formed recollection about the figure of 221 being alongside candidate Tappin’s name that morning when they were rechecking the tally sheets. Ms Southall’s evidence was that she had no independent recollection.100 At that point (the time of rechecking) they had no particular reason to focus on candidate Tappin’s total any more than the totals for other candidates. It is not likely they had independent recall of the figure. It is likely that their evidence in this respect is a deduction based on the overwrite they observed later that day (after the tally sheets were returned to Ms Southall) and when they saw them when interviewed by Mr Will and Mr Holcombe.101 Ms Feige’s deduction is also based on her evidence, which I accept, that she saw Ms Southall write all of the numbers onto the Southall Summary Tally Sheet102 and Ms Feige’s further evidence, which I also accept, that “there was no blue and no alteration to this sheet when we were using it”.103

[178] This notwithstanding, I have formed a clear view with certainty, based on the evidence before me, that Mr Nemcic did in fact alter the Jenny and Les Tally Sheet figure of yes votes for candidate Tappin from 221 to 230 whilst alone in the small meeting room between approximately 10.30am and 11.00am on 31 March 2017.

[179] My reasons are as follows:

[180] Firstly, a perusal of Exhibit R1 (the original tally sheets) shows that the figure 230 for candidate Tappin on the Jenny and Les Tally Sheet is an overwrite. More particularly, the 3 and the 0 overwrite numerals beneath them. The overwrite of the 3 and the 0 is in dark blue pen. The 2 is not overwritten and is in black pen. Mr Nemcic agreed he used dark blue pen when writing on the tally sheets that morning. As evident from the following exchanges, he agreed that he did so on the Jenny and Les Tally Sheet:

“MS STEWART: Can we just have a look at Ms Southall’s individual tally sheet now? So that was the first sheet in that bundle.

MR NEMCIC: Mmm

MS STEWART: We can see from glancing at it that there are also various figures in darker blue ink. You accept that that dark blue ink on all of these respective figures is yours?

MR NEMCIC: That was my pen – yes that was me.” 104

“DEPUTY PRESIDENT: You’re saying Mr Nemcic that the figure had been changed when you received this document, and you overwrote that change?

MR NEMCIC: There were – looking at the tally sheets as a whole, you can see my writing in over half a dozen little spots.

DEPUTY PRESIDENT: Yes?

MR NEMCIC: The purpose of that was –

DEPUTY PRESIDENT: The blueish pen on –

MR NEMCIC: That’s right. I had a blue pen.

DEPUTY PRESIDENT: The blue pen, whereas the underlying figures seem to be written in black pen?

MR NEMCIC: I think so.” 105

“DEPUTY PRESIDENT: Is that your blue pen?

MR NEMCIC: That’s my writing, yes. The 2 is quite clear obviously; then the other numbers are changed.” 106

[181] I have found that neither Ms Southall nor Ms Feige used dark blue pen that morning. I have particularly accepted Ms Feige’s evidence in that respect. 107 Given that the fudging was made in dark blue pen, and given that Mr Nemcic used dark blue pen that morning and given that Ms Southall did not, this makes it highly probable that the fudging was made by Mr Nemcic (for the reasons that follow, I do not find that the “fudged” numerals for candidate Tappin was a double overwrite, as Mr Nemcic suggested). I am supported in this conclusion by the fact that the overwrite admitted by Mr Nemcic to the Tappin box on the Southall Summary Tally Sheet was also made in dark blue pen. It is implausible that each of the blue pen markings are his (including the one for candidate Tappin on the Southall Summary Tally Sheet) but not the one for candidate Tappin on the Jenny and Les Tally Sheet.

[182] Secondly, the figure recorded on the whiteboard the day prior for candidate Tappin from the Jenny and Les counting group was 221. On the morning of 31 March, Ms Southall and Ms Feige cross-checked the numbers recorded on the Southall Summary Tally Sheet against the numbers in the group tally sheets including the Jenny and Les Tally Sheet on at least three occasions. They also cross-referenced the whiteboard data (evidenced by the fact Ms Southall discovered the whiteboard error concerning candidate Hern). 108 It is highly unlikely that two officers each checking data on three occasions would have failed to have seen an error in transposition of the votes for candidate Tappin. Ms Southall and Ms Feige were actively looking for mistakes such as transposition errors. They were actively checking the paperwork, as Mr Nemcic had suggested they do. Their intention was to find where and how the first declaration had failed to reconcile. This makes it extremely unlikely that they would have failed to identify and correct a transposition error.

[183] Thirdly, Mr Nemcic had opportunity to do so. He had the time and privacy to examine and alter the count data when he took the tally sheets alone into the small meeting room and worked on them, including by making overwrites.

[184] Fourthly, Mr Nemcic had reason (motive) to fudge the count that morning. He was not seeking any personal gain, and none arose. However, it was in his professional interest to resolve the matter quickly without further losing the confidence of the PFA SA as a client of the AEC. He was Manager of the SA ICE Unit. He was annoyed that Ms Southall has failed to conduct the election as he had suggested. He was embarrassed and concerned that her failures and a potentially erroneous first declaration could reflect adversely on him. He wanted to resolve the concerns of the PFA SA, settle this client down and not have controversy over the first declaration further drawn out. In his evidence he said:

“It was really embarrassing. I felt gutted by it all. I’m the office manager, I’m in charge…” 109

DEPUTY PRESIDENT: Did you have a concern that the release of an incorrect declaration of results by the Commission the night before could reflect on you as the manager?

MR NEMCIC: Definitely. I took responsibility for that as part of my team. It’s a member of my team that produced that result...” 110

[185] Fifthly, Mr Nemcic prepared an entirely new summary sheet (the Nemcic Summary Tally Sheet). It was not necessary for Mr Nemcic to do so. If the error was simply one of transposition, he simply could have corrected the figure on the Southall Summary Tally Sheet, not prepare a new tally sheet. His explanation for doing so was “to clarify the messiness” 111 for the returning officer’s ease of reference. This is not a convincing explanation. Even with his markings and overwrites, the Southall Summary Tally Sheet was not illegible. Any figure that was unclear to the returning officer could have been raised by her with him. Creating a separate sheet was not inappropriate but it was unnecessary. Doing so was consistent with deflecting the returning officer’s attention away from the Jenny and Les Tally Sheet where the count had been improperly altered and onto a new summary tally sheet from which a second declaration that reconciled could be readily prepared.

[186] Sixthly, Mr Nemcic altered the figure for candidate Tappin from 221 to 230 on the Southall Summary Tally Sheet. This is not denied. He says doing so was consequential on the transposition error he says he found. If there was a transposition error, Mr Nemcic did not need to alter any figure on the Southall Summary Tally Sheet. He could have simply taken the sheets back to Ms Southall and pointed out to her the transposition error and asked her to correct the Southall Summary Tally Sheet. 112 He did not need to mark any tally sheets. He simply needed to check them to determine if there was error. If he was simply undertaking a “proof-reading exercise” as he claimed113 then he need not have marked any of the sheets. I do not accept his evidence that he only regarded his task as proof-reading. This was unconvincing evidence downplaying his dealing with the tally sheets. On 31 March 2017 he did not just proof-read. His own evidence is that he analysed the sheets, marked the sheets in many places and then compiled an entirely new sheet.

[187] Seventhly, when Mr Nemcic returned to Ms Southall, he did not specifically explain how he made the count reconcile. He spoke in general terms only; that the problem had been “fixed” due to a transposition error. He did not explain that the error concerned candidate Tappin and that he had altered the figure for candidate Tappin on the Southall Summary Tally Sheet from 221 to 230 (which on any version of the evidence he had done so). 114 It is unlikely that an experienced manager who has found a transposition error by an inexperienced officer would fail to point out the specifics of that error. It is consistent with having improperly altered the count that his communication was in general terms only and that the source of the nine votes he had ‘found’ was not specifically drawn to the attention of the less experienced returning officer.

[188] Based on the above combination of facts I make my finding.

[189] There is one further conclusion that supports this finding but which involves the Commission drawing an inference from facts. The inference is that the “fudging” involved a level of sophistication in four respects that made it more likely than not to have been undertaken by an experienced officer rather than an inexperienced one.

[190] It is a reasonable inference and I draw it. However, I do not consider it necessary to do so to make my primary finding. The evidence to support my primary finding is established without drawing such an inference. However the inference is consistent with it, and made for the following reasons:

[191] Firstly, not only was the 230 in the Tappin box on the Jenny and Les Tally Sheet an overwrite but the box as returned by Mr Nemcic read 230/119. The 119 figure is also an overwrite (of three numerals 1, 1 and 9). The number above the dividing line purported to represent yes votes for candidate Tappin. The number below represented the difference between the recorded yes vote number (230) and the total number of formal ballot papers counted by the Jenny and Les group (which was 349). Hence, if the yes figure was altered to 230 (as it was by someone) then it would be necessary for that person to know that they also needed to alter the figure below the diagonal line by a corresponding number. Given that Ms Southall was inexperienced, and given that she did not even know until that morning (when told by Mr Nemcic) how to make a count reconcile between votes cast and the number of formal ballots counted, it is unlikely that she could have exercised such a level of judgment, especially given the anxiety she was displaying. 115

[192] Secondly, the fudging was directed at an alteration of the count for candidate Tappin and as such did not alter the outcome of candidates elected by the electors. Given that a first declaration of eight successful candidates had already been made, and given that the PFA SA Secretary had already raised concerns over the first declaration, it was in the interests of whoever fudged the count to do so with as little practical consequence to the already declared results so as to not further alarm the PFA SA. A reconciliation of numbers without a change to elected candidates was likely to be easier to explain to an inquisitive and concerned client. Candidate Tappin was elected on the first declaration. He remained elected on the second declaration. Both Mr Nemcic (as Manager of the ICE SA Unit) and Ms Southall (as the returning officer of the PFA SA election) had an interest in resolving the matter without losing the confidence of the client. It is more likely than not that an experienced officer of the ICE Unit would have had the know-how to fudge data without altering candidate outcomes than an inexperienced officer. Mr Nemcic was an experienced officer. Ms Southall was inexperienced. This was her first contested election as a returning officer. Mr Nemcic’s evidence was that, alone in the work-room, he did add up the order of candidates. 116 The right hand columns of the Southall Summary Tally Sheet and the Nemcic Summary Tally Sheet are evidence of that.

[193] Thirdly, whoever did the fudging on the Jenny and Les Tally Sheet needed to know, in order to cover their tracks, that they had to consistently carry that fudging over onto the Southall Summary Tally Sheet in four areas: the figure for candidate Tappin (in the box), the total formal votes of 2803 for the Jenny and Les counting group (bottom of column 2), the total formal votes for candidate Tappin (second to right hand column 626 box) and the total formal votes for the count of 7992 (bottom of the second to right hand column). It is likely that this level of consequential care would have been undertaken without error by an experienced officer, than an inexperienced one. Mr Nemcic’s evidence was that each of these markings was made by him. 117

[194] Fourthly, the fudging involved attempts to deflect attention from the wrongdoing. Mr Nemcic unnecessarily overwrote in dark blue pen many identical numerals on both the Jenny and Les Tally Sheet and the Southall Summary Tally Sheet. Mr Nemcic’s explanation was that he was making unclear figures legible or neater. This is only a plausible explanation if the figures were illegible or insufficiently legible when he received the tally sheets. I do not consider that the case. Ms Southall and Ms Feige had checked the same figures three times earlier that morning. If they were illegible to Mr Nemcic, they would have been illegible to Ms Southall and Ms Feige – which they were not. In making the pure overwrites Mr Nemcic gave the appearance of multiple random instances of dark blue pen being on the tally sheets. This had the effect of deflecting attention away from the fact that dark blue pen had improperly altered the numbers in the Tappin box.

[195] I do not make my findings based on an examination of handwriting. Whilst the dark blue handwriting in the Tappin box on the Jenny and Les Tally Sheet may be the same as the handwriting Mr Nemcic accepts he used to make the altered overwrite in the Tappin box on the Southall Summary Tally Sheet, the Commission did not receive evidence from a handwriting expert. What is open to the Commission to find, however is that a close but simple examination of the overwriting in the Tappin box on the Jenny and Les Tally Sheet reveals that it is an overwrite in a different colour pen (dark blue over black). What I accept from the evidence is that where Ms Southall corrected or overwrote on the Jenny and Les Tally Sheet, she did so in black pen, not dark blue pen (see the Buckingham box and the Heffernan box).

[196] I have considered the possibility that Ms Southall secretly altered the Tappin count without Ms Feige seeing her do so prior to giving the Jenny and Les Tally Sheet to Mr Nemcic, or did so in collusion with Ms Feige. Both propositions are far-fetched. Ms Feige’s evidence which I accept is that there was no collusion. Her conduct in subsequently reporting her unease about the “fudging” to Ms Southall and later to Ms MacDonagh and Mr Hawes 118 is not consistent with her being party to collusion. Nor is there any real likelihood that Ms Southall did so secretly. Whilst I do not discount the possibility that for a short period before giving it to Mr Nemcic she may have had possession of the Jenny and Les Tally Sheet without Ms Feige being present (there is no direct evidence of that), she was actively working with Ms Feige that morning on checking the paperwork. Nor is her conduct after the checking process consistent with a person who had already fudged the count. She gave the tally sheets to her manager Mr Nemcic after telling him the count was still nine votes short of reconciling. It is unlikely that a returning officer who had improperly altered a count and who had the authority to issue a second declaration would have voluntarily exposed her paperwork revealing evidence of improper conduct to her more experienced manager.

[197] In making my finding I reject Mr Nemcic’s explanation. Mr Nemcic’s explanation is that when he was handed the Jenny and Les Tally Sheet by Ms Southall it already had a number 230 as the yes vote in the candidate Tappin box. Moreover, his evidence is that the number 230 as it appeared was already an overwrite. In other words, he says someone had already written 230 over 221.

[198] His evidence went further. He similarly says that that he overwrote the figure 119 beneath the diagonal in the Tappin box, not just the figure 230 above the diagonal and that this too was a double overwrite.

[199] His version is implausible.

[200] To accept that version is to conclude that all of the dark blue pen markings on the tally sheets were made by Mr Nemcic except one, and that one just happened to be the improper alteration. It is much more plausible that all of the dark blue pen markings on the tally sheets were made by the same person, not all bar one.

[201] Further, if the number 221 had already been overwritten as 230 and Mr Nemcic could read it as 230 then the obvious question is why would an experienced officer bother to make a double overwrite over an already overwritten figure that he could already read?

[202] Mr Nemcic says he was simply wanting to clarify legibility, to neaten it up. In his evidence Mr Nemcic said:

“I’ve just gone over the top in blue pen so that it’s nice and legible for me.” 119

“I’ve overwritten them so that they’re nice and clear.” 120

“I was just going through and making sure anything that was indistinct was made legible…” 121

“I just rewrote it so it was a lot neater.” 122

[203] In answer to questions Mr Nemcic said: 123

“DEPUTY PRESIDENT: Is your evidence Mr Nemcic that the 230/119 against Mr Tappin, those figures had already been overwritten by the time your received this document?

MR NEMCIC: Yes. You can see there’s something under it originally. Someone has written it down, obviously made a mistake, overwritten it. I’ve come along and clarified it. I’m the last person to look at it, so I’ve – on the top, blue pen.

DEPUTY PRESIDENT: When you say you clarified it, you’ve overwritten the overwritten?

MR NEMCIC: Yes, well that’s what has happened I think.” [my emphasis]

[204] In answer to further questions on the topic Mr Nemcic said: 124

“DEPUTY PRESIDENT: Why did you feel the need to superimpose the letters 3 and 0?

MR NEMCIC: Just to clarify them. That’s what I did with everything on that tally sheet.

DEPUTY PRESIDENT: Why did you clarify them?

MR NEMCIC: So that -

DEPUTY PRESIDENT: What do you mean by that?

MR NEMCIC: Well to make sure that everything that I was transposing was legible to me, so I didn’t make any mistakes.

DEPUTY PRESIDENT: You’ve said the figure that was there when you received it was 2-3-0?

MR NEMCIC: Yes

DEPUTY PRESIDENT: You’ve superimposed the letter 3 and a letter 0 on top of the existing letter 3 and existing letter 0?

MR NEMCIC: Yes

DEPUTY PRESIDENT: You say that because you’re wanting to make it clear that it’s a 3 and a 0?

MR NEMCIC: Exactly

DEPUTY PRESIDENT: Even though originally it was a 3 and a 0?

MR NEMCIC: Well obviously it wasn’t a very clear one but it was there.

DEPUTY PRESIDENT: Well obviously or wasn’t it?

MR NEMCIC: Well to me I wouldn’t have changed it if I didn’t think I was – it needed to have that over it.

DEPUTY PRESIDENT: Because that’s the approach you’ve taken to other figures that haven’t been clear, you superimposed the same figure?

MR NEMCIC: That’s right. I didn’t want to have a mistake on there from an illegible figure.

DEPUTY PRESIDENT: So was it illegible that it was a 2-3-0?

MR NEMCIC: I didn’t want to take that chance so there’s no – there’s no harm in clarifying a figure that’s already there.” [my emphasis]

[205] In neither of these passages is the evidence convincing. It is not evidence that I accept.

[206] Related evidence given by Mr Nemcic about the diagonal line between the two numbers 230 and 119 in the Tappin box was also not convincingly given. Initially Mr Nemcic denied that he superimposed the diagonal mark. 125 When it was pointed out to him that the diagonal mark was made in blue pen he said that he “might have” made it126, then moments later agreed that it was made by his hand if it was in blue pen127. In the space of a couple of minutes his evidence went from a denial, to a maybe, to a conditional yes.

[207] For Mr Nemcic’s explanation to be believed it also has to be accepted that the number 119 beneath the diagonal was also a double overwrite and that the first overwrite of that number (made by someone else) was not just an overwrite but also an illegible overwrite.

[208] To accept this is to stretch credulity. While I accept his evidence that from time to time officers of the AEC had overwritten numbers on tally sheets for legibility, other corrections on the Jenny and Les Tally Sheet (the Buckingham box and the Heffernan box) had been made in black pen and crossed out by way of correction, not left as overwrites.

[209] Moreover, that both of the overwritten numbers (230 and 119) were illegible is to also stretch credulity.

[210] What also stretches credulity is that Mr Nemcic, having overwritten a legible overwrite so as to not “take a chance” that it may be illegible, then decided to compile an entirely new summary tally sheet in his hand “to clarify the messiness”. 128 It is not consistent with having made overwrites for the purpose of clarifying legibility to then regard the product of that clarification as so messy that it warranted a new summary sheet.

[211] Nor is it plausible that Mr Nemcic would overwrite for clarity purposes two numbers that he could already read.

Taking Tally Sheets into a Private Office

[212] Mr Nemcic took the tally sheets into a private meeting room, sat alone with them and wrote on them. Both Mr Nicholl and Mr Courtney considered this improper conduct and a breach of duty in its own right. The AEC refer to the AEC’s ballot paper principles. 129

[213] In response, Mr Nemcic says that he had already situated himself in the small meeting room to work off-line that day before any discussion that morning with Ms Southall. He also says that tally sheets are not ballot papers, and that the AEC ballot paper principles do not apply to tally sheets.

[214] Factually, Mr Nemcic is correct. However, Mr Nemcic, as an experienced officer of the AEC, had an obligation to conduct himself whilst in possession of tally sheets in a manner that respected the integrity of the counting process and gave no rise to grounds for any person to suspect that the integrity of an election had been compromised.

[215] Whilst tally sheets are not ballot papers, they are an integral component of a count. In this type of count, a declaration is not made simply on the basis of examining ballot papers. Findings from ballot papers are recorded by counting staff onto tally sheets and it is from those tally sheets that declarations are made by returning officers (there is also scope for a computer generated EasyCount process; I do not need to deal with that for current purposes).

[216] The issue is not whether Mr Nemcic breached AEC ballot paper principles on the morning of 31 March, but whether he breached his employment obligations. Those obligations included a duty to act in a manner that protected and maintained the integrity of the AEC in its conduct of elections. I am satisfied that by taking tally sheets into a room alone for checking he breached that duty. Doing so did not provide the necessary checks and balances consistent with maintaining the integrity of a count including transparency associated with scrutinising and checking tally sheets. It was a lapse of judgment, particularly in circumstances where a potentially inaccurate declaration had been made the day prior, where he had concerns that the returning officer had not taken his counsel in the days prior, where he was overseeing the management of a ballot by a less experienced returning officer and where that morning he had been told that the client was questioning the first declaration and its reconciliation. In these circumstances, it was an error for Mr Nemcic to take the tally sheets into a closed and private space away from the scrutiny of others.

[217] Doing so was an error of judgment capable of forming an element of a valid reason to dismiss.

Not Recommending a Recount

[218] It was suggested by the AEC that Mr Nemcic failed in his duty because he did not require a recount of ballot papers, either by hand or by the EasyCount system.

[219] Mr Nemcic says that under electoral laws only a returning officer can make a decision to hold a recount. As he was not the returning officer, he says it cannot be said that he failed in his duty to not require a recount.

[220] With one qualification (below), I do not agree. There is no doubt that Mr Nemcic did not have lawful power to direct Ms Southall to conduct a recount. However, as her manager, he had the authority and duty to oversee her conduct of the ballot, to provide guidance and to make recommendations if needed. On his own evidence, he gave her guidance (guidance that she failed to follow); for example, by recommending that she not be a counter but simply oversee the counting staff; and that the counting and recording system used by the three counting groups be consistent. There was no impediment to Mr Nemcic recommending to the returning officer that a recount of ballot papers occur. His evidence was that he could not order one but “can certainly arrange one”. 130

[221] In the event that an examination of tally sheets showed no obvious error, and the count still did not reconcile, this was the appropriate course. Mr Nemcic chose not to recommend that course. Instead, he altered a tally sheet and by apportioning nine votes to a candidate without knowing whether that candidate had in fact received those nine votes.

[222] The qualification to this conclusion is that if, contrary to my finding, Mr Nemcic had simply discovered a transposition error then he was entitled to conclude that the count reconciled, and would then not have had a duty to recommend a recount. That, however, is not my finding.

Truthfulness to the Investigator and Employer

[223] The AEC say that Mr Nemcic also failed in his duty because he was not truthful to Mr Will, to Mr Holcombe or to the decision-makers in the AEC about his conduct on the morning of 31 March 2017.

[224] This submission stands or falls on the finding of fact I have made about the fudging of the Jenny and Les Tally Sheet.

[225] If Mr Nemcic was correct in his denial, then he was truthful to the investigators and to his employer. However, that is not my finding.

[226] An employee’s duty of honesty and fidelity to their employer includes a duty to be truthful to investigators about their workplace conduct and events in the workplace. This is especially so in the case of an officer in an electoral unit of a statutory authority entrusted by the parliament of Australia to conduct elections.

[227] Given the findings of fact I have made, Mr Nemcic elected to deny to the investigators and to the employer that he had made an improper alteration to the Jenny and Les Tally Sheet. When making those denials he was not acting under any disability or memory loss. He could have told the truth, but compounded his misconduct by choosing not to. An employee in a position of trust has a duty to tell the truth about relevant workplace conduct even if that conduct involves wrongdoing or errors of judgment on their part, however uncomfortable. By not doing so, he breached his duty and put the employer to cost and expense of conducting an investigation. He also allowed suspicion to be cast on other employees who (I have found) did not alter the figures.

[228] I have found that Mr Nemcic also tried to cover up the fudging. He did this at the time, and in the days that followed.

[229] At the time he did so by unnecessarily making pure overwrites on the tally sheets.

[230] In the days and weeks that followed Mr Nemcic tried to steer the PFA SA away from its suggestion that a recount take place. He allowed the PFA SA to be given the impression (via the AEC State Manager’s letter of 11 April 2017) that the first declaration failed to reconcile as the result of not counting “one tally sheet of votes”. His file note of 4 April 2017 did not record as relevant “background information” that the count had not reconciled even after “one batch of results” had been included. 131 His file note of 12 April 2017 repeated this impression (“once this was made known to the returning officer, they then proceeded to re-issue the declaration of results, with all counts included.”132)

[231] This was selective and misleading. Mr Nemcic knew that the result did not reconcile even after that missed sheet of votes had been included. Mr Nemcic, as Manager of the SA ICE Unit, had an obligation to ensure that his employer and the client he was dealing with was not so misled. Yet his file notes put that misleading impression on the record. His evidence that “this is what I came up with at short notice” is unconvincing. 133 As an experienced officer in a managerial role he had a duty to not mislead in his record on the AEC file. His evidence as to why he did not tell this to the PFA SA when he met them is also unconvincing.134 To say that he “probably overlooked it”135 belies the fact that he had time to prepare for that meeting, knew the concerns of the client and understood that the episode could reflect on him as Manager of the SA ICE Unit.136 I conclude that Mr Nemcic did not overlook it; he chose to omit it from the official record and from the client because to reveal it would have raised questions about the other votes that were added (Hern by Ms Southall’s error and Tappin by Mr Nemcic’s fudging) that made the second declaration reconcile, and how those extra votes came to be included.

[232] Although I am not directly dealing with matters concerning Ms Southall’s failures of duty, I note that Ms Southall’s chronology prepared on 5 April 2017 was similarly selective and misleading. It simply referred to the missing count sheet and “transcription errors”. 137 Candidate Hern’s count was a transcription error. The fudging of candidate Tappin’s count was not.

Conclusion on Valid Reason

[233] As noted, a reason for dismissal is a valid reason if it is “sound, defensible and well-founded”. 138 A dismissal for serious misconduct requires the employer to adduce evidence before the Commission to the requisite standard of proof (the Briginshaw standard) that the misconduct occurred. It is well-established that a dismissal for serious misconduct will be sound, defensible and well-founded if the employee’s conduct creates a conflict between his interests and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between the employer and employee.139

[234] Further, decisions of the Commission have made it clear that where an employer has clear policies about behaviour in the workplace, such as how employees must treat clients and each other, an employee’s conduct or actions in breach of policy will be a valid reason for termination.¹⁴⁰

[235] I have found that Mr Nemcic altered the count for candidate Tappin on the Jenny and Les Tally Sheet.

[236] For this to be a valid reason for dismissal it needs to have been an alteration for which there was no proper basis having regard to AEC procedures for the conduct of elections and his employment obligations as an officer of the AEC.

[237] I have concluded that the alteration was for the reason of making the vote reconcile and enabling the returning officer issue a second declaration that reconciled. I find that Mr Nemcic had the expectation that Ms Southall would issue a second declaration based on the tally sheets as he returned them to her. As also noted, it is a reasonable conclusion to draw from Mr Nemcic’s evidence and actions at the time (including that he was annoyed that Ms Southall has failed to conduct the election as he had suggested and in subsequent dealings with the PFA SA) that he was embarrassed and wanting to resolve the concerns of the PFA SA, settle this client down and not have controversy over the first declaration further drawn out. He thought he would fix the problem and had fixed the problem.

[238] None of these reasons were proper reasons. Indeed, each was improper. Fundamental to the conduct of elections by the AEC and to the declaration of results by the AEC is the integrity of its processes leading to those declarations. Those processes include each stage of its conduct of elections, not just the counting of ballot papers. It includes the recording of outcomes of the count on tally sheets and the subsequent issuing of declarations based on those tally sheet summaries. No tally sheet apportioning yes votes to a candidate should record votes other than yes votes drawn from a ballot validly cast by an elector. This is a central tenant of electoral integrity. Unless each step in the AEC processes has integrity, the declared results of elections cannot be relied upon by its clients, the general public or the institutions of the State which entrust the conduct of elections to the AEC.

[239] There is no basis whatsoever for an officer of the AEC to add or detract from the count of votes for a candidate on a tally sheet except where that addition or detraction is a consequence of a properly recorded and supervised count or recount of ballot papers.

[240] It was not improper for Mr Nemcic to examine the tally sheets given to him by Ms Southall to see if his experienced eye could identify the reason why the vote still did not reconcile. However, there was no proper basis to mark candidate Tappin as having received 230 yes votes and 119 no votes from the Jenny and Les bundles of ballot papers. He did not know if this was so, yet he recorded it so. This was the representation Mr Nemcic made to the returning officer when he returned the tally sheets to her that morning, and he had no reasonable basis for doing so. It was not premeditated conduct but it was deliberately made in the moment.

[241] This conduct was improper interference with the count of votes in an industrial election by an officer of the AEC. It was serious misconduct and, as such, a valid reason for dismissal.

[242] That it was made by an officer of the AEC who knew his obligations 141, was experienced and who was Manager of the AEC’s ICE Unit in South Australia makes the breach more serious. That it was made in the expectation that the returning officer would issue a second declaration based on the returned (and improperly altered) tally sheets further compounds the seriousness of the infraction.

[243] As a submission in the alternative, Mr Nemcic submits that termination was disproportionate to the misconduct and therefore not a valid reason. I disagree. The seriousness of the breach in the context of the role and functions of the AEC and his employment responsibilities make dismissal for this reason alone (the fudging) proportionate and valid.

[244] Given this conclusion, I do not need to determine whether the other failures by Mr Nemcic which I have found (taking the tally sheets alone into a private office, not recommending a recount of votes and not being truthful to the investigator or his employer) were valid reasons for dismissal individually or in combination. However, I proceed to do so, given the evidence and submissions made on these issues.

[245] I have found that taking tally sheets associated with a yet to be concluded election process into a room alone for checking breached his duty and was a lapse of judgment. Had all Mr Nemcic done was check the data and identify a transposition error and report that error to the returning officer, I would be satisfied that taking the tally sheets alone into a room was conduct warranting sanction, but sanction short of dismissal. However, that was not what Mr Nemcic did.

[246] Similarly, had Mr Nemcic simply found a transposition error and drawn that to the returning officer’s attention, there would have been no need to recommend a recount. A failure to do so would not have been a breach of duty and not a valid reason for dismissal. However, having found that there was no transposition error between the Jenny and Les Tally Sheet for candidate Tappin and the Southall Summary Tally Sheet for candidate Tappin, I conclude that it was a failure of duty to not recommend a recount. A count that fails to reconcile between total votes for candidates and total votes counted can only be resolved by a recount of ballot papers. That is what Mr Nemcic had a duty to recommend. It may have drawn the process out and deepened the concerns of the client, but that was the required course of action. In not recommending that to Ms Southall, Mr Nemcic breached his duty, especially given that Ms Southall was inexperienced in the conduct of contested elections and, as her manager, Mr Nemcic knew that. If the breach was simply a failure to recommend a recount (but not more) it would have been conduct that warranted sanction at the higher end of the scale but sanction short of dismissal.

[247] I also consider that allowing selective and misleading information about the count to have been communicated to the PFA SA and recorded in his AEC file notes to have been a breach of duty warranting sanction.

[248] Given the conclusions I have reached about Mr Nemcic’s obligations to be truthful to investigators and to his employer, I consider that the failure to have been truthful was a serious breach which, in and of itself, was a valid reason for dismissal. In reality however, this conclusion is a consequence of my primary finding (of the fudging) and would not arise if Mr Nemcic had simply found and corrected a transposition error.

Notification of the reason for dismissal (section 387(b))

[249] I have found that Mr Nemcic was notified that the breach decision-maker (Mr Nicholl) had found that he had breached the APS Code of Conduct and that the sanction decision-maker (Mr Courtney) subsequently informed Mr Nemcic that he had imposed a sanction of termination in consequence of the breach finding and after reviewing Mr Nemcic’s submissions in mitigation. Mr Courtney’s letter of 13 December 2017 142 provided his reasons for decision.

Opportunity to respond (section 387(c))

[250] The evidence before me is that Mr Nemcic was interviewed by Mr Will on 19 June 2017 as part of the preliminary investigation. Mr Will made a summary record of that interview, provided that summary in draft form to Mr Nemcic and Mr Nemcic signed the draft as true and accurate on 26 June 2017. 143

[251] The further evidence before me is that on 30 August 2017 Mr Nemcic was informed by the breach decision-maker (Mr Nicholl) that he would have an opportunity to make an oral or written submission on the allegation of a Code of Conduct breach. He was also given an opportunity to notify Mr Nicholl within five working days of any health reason or other circumstance which would prevent him from participating in the investigation. He sent no response.

[252] The further evidence before me is that Mr Nemcic was interviewed by Mr Holcombe on 6 September 2017 as part of the Code of Conduct investigation. Mr Holcombe made a summary record of that interview, provided that summary in draft form to Mr Nemcic and Mr Nemcic signed the draft as true and accurate on 5 October 2017. 144

[253] The further evidence before me is that on 4 December 2017 Mr Nemcic was informed by the sanction decision-maker (Mr Courtney) that he had an opportunity to respond on the proposed sanction (which was described in that letter as conduct warranting “a more serious sanction”) before a final decision was made. Mr Nemcic replied on 11 December 2017 with a lengthy and considered response.

[254] Having regard to these findings, I conclude that Mr Nemcic was provided an opportunity to respond to the allegations and the potential sanctions prior to the decision to terminate his employment.

[255] However, Mr Nemcic submits that there was one stage of the process where he was denied the opportunity to respond – between the time Mr Nicholl received the Holcombe report and the time he decided to issue a determination of breach.

[256] Factually this is so. Mr Nicholl received the Holcombe report on 30 October 2017. He issued a determination of breach on 14 November 2017. At no stage in that period, or at all, did he personally speak to Mr Nemcic to seek his version of events (nor for that matter did Mr Courtney). At no stage in that period did Mr Nicholl inform Mr Nemcic that he had received Mr Holcombe’s report and was considering making a determination and invite his further representations.

[257] Was this a denial of an opportunity to respond?

[258] In the abstract it was. The breach decision-maker never gave Mr Nemcic an opportunity put a response to the breach decision-maker (my emphasis). The opportunity Mr Nicholl gave to Mr Nemcic was to put a response to the investigator which the breach decision-maker had (indirectly) commissioned (through his Branch).

[259] Mr Nemcic submits that this was an error of law and of fairness by the AEC. He says that section 43 of the Public Service Act 1999 requires an employee to be informed that a determination is being considered. 145 In making this submission Mr Nemcic relied on the Federal Court of Australia decision in Lohse v Arthur and Ors (No 3) (Lohse’s Case).146 That case is support for a proposition that under administrative law principles applying to a particular government department at the time, the Court considered it necessary for an employee to be given an opportunity to make an oral submission to a breach decision-maker.

[260] Although Lohse’s Case is relevant, each case turns on its own facts. I do not need to determine whether the omission by Mr Nicholl was a breach of administrative or other law though I note that the Public Service Act 1999 requires an employee to be given a reasonable opportunity “to make a statement in relation to the suspected breach” in advance of a determination, but does not specifically state that it must be provided by the breach decision-maker, or only be provided once an internal or external investigation report is received. As I have noted, Mr Nicholl’s letter of 30 August 2017 informed Mr Nemcic that he (Mr Nemcic) would have an opportunity to make an oral or written submission “before any finding is made”.

[261] The Commission’s role is to consider whether the employer’s conduct was a denial of an opportunity to respond and if so, a denial of procedural fairness. I am satisfied that there was a denial of an opportunity to respond to the breach decision-maker once the breach decision-maker received the Holcombe Report, and that this was a material failure on the part of the AEC. I do not however consider that failure to be so serious as to have tainted the decision-making process as a whole because Mr Nemcic was given an opportunity to respond to the investigator (and did so). Mr Nicholl had before him Mr Holcombe’s report, and that report included Mr Holcombe’s summary of what Mr Nemcic had said and put to him (a summary that Mr Nemcic had certified as accurate). In that sense Mr Nicholl did have before him Mr Nemcic's version of events, and received that version in advance of making his determination.

[262] In this context, although I do not consider this failure of process to be at the serious end of the scale, it was nonetheless material. After all, the AEC was Mr Nemcic’s employer, not Mr Holcombe. Mr Nicholl had an obligation to himself consider the merit or otherwise of the findings and recommendations of Mr Holcombe (and I am satisfied that he did so). Given that, it was unfair for the AEC to assume that Mr Nemcic would have nothing more or new to say to his employer compared to what he had said to Mr Holcombe. Whether he would have said anything new is not to the point. He was not given that opportunity. It was a material failure of an opportunity to respond at one stage of the process, albeit not a failure that lends itself to a conclusion that overall he was denied an opportunity to respond or overall denied procedural fairness.

[263] As part of his broader submissions concerning procedural fairness, Mr Nemcic also made a submission that the opportunities he had to respond were superficial, incomplete and that his responses were not properly considered. I consider these issues below.

[264] Mr Nemcic submitted that he was denied procedural fairness for a number of other reasons. The main submissions made on this point are now considered.

Procedural Fairness: Mr Holcombe was not properly commissioned to investigate

[265] Mr Nemcic submits that Mr Holcombe was not properly authorised to conduct the investigation under the AEC Breach Procedures. He submits that Mr Holcombe was appointed by an officer of the AEC Ms Fuller, not the breach decision-maker (Mr Nicholl), as required by principle 2.2 of the AEC Breach Procedures. 147

[266] Mr Nemcic relies on the fact that the contract for services between the Commonwealth and HWL Ebsworth was signed by Ms Fuller of the AEC, and that Mr Nicholl’s evidence was that he “was not involved in this process.” 148

[267] I do not consider the appointment of Mr Holcombe by the AEC to have been irregular or unfair to Mr Nemcic.

[268] Mr Holcombe was selected by the AEC People and Services Branch. Although Mr Nicholl had no direct involvement in the selection, he had formally agreed that his Branch make that selection when he endorsed a minute of 19 July 2017. 149 He was the Acting Head of the People and Services Branch at the time. The Branch over which he had responsibility made the selection consistent with the minute he had endorsed and consistent with a subsequent minute of 20 July 2017 endorsed by the Acting Electoral Commissioner Mr Pope on 21 July.150

[269] In any event, even if it is concluded that Mr Holcombe was not technically “appointed by the breach decision maker” because Mr Nicholl authorised but did not personally select Mr Holcombe (a view I do not share), there was no unfairness to Mr Nemcic. Mr Holcombe was “an external investigator” within the meaning of principle 2.2 of the AEC Breach Procedures and the instruments authorising his appointment. He was a partner at HWL Ebsworth, practised in administrative law and, to a lesser degree, in employment law, and had drafted public sector investigative guidelines for the Public Service Commissioner. He was qualified for the role, even though he accepted in his evidence that his working knowledge of the FW Act (including its unfair dismissal provisions and the distinction between protected action ballots and industrial elections) was limited. 151

[270] A related submission by Mr Nemcic was that Mr Holcombe was not an appropriate person for appointment because the AEC Breach Procedures required the external investigator to “be, and must appear to be, independent and unbiased.” 152

[271] Mr Nemcic references the fact that both Mr Will and Mr Holcombe were partners in the same firm HWL Ebsworth. He submits that this created a conflict of interest or an apparent conflict of interest.

[272] I do not consider the fact that both Mr Holcombe and Mr Will were partners in the same law firm to be evidence of a lack of independence or evidence of bias. The fundamental independence required by the AEC Breach Procedures is an independence from the matter under investigation. Mr Will and Mr Holcombe were both so detached. Mr Holcombe had not previously done any work for the AEC. 153 Mr Holcombe’s evidence was that whilst he relied on aspects of Mr Will’s Report (a matter I consider later in this decision), he did not discuss the substance of the matter with Mr Will whilst conducting his investigation. I accept this evidence. Although his description that he “started afresh”154 is an overstatement given that he utilised and made reference to the Will Report to commence his work, he conducted his own interviews with staff and made his own findings and recommendations.

[273] I do not conclude that Mr Will or Mr Holcombe were biased or gave an appearance of bias against Mr Nemcic or were otherwise not independent investigators.

Procedural Fairness: Mr Will and Mr Holcombe relied on prejudicial material

[274] Mr Nemcic submits that Mr Will and Mr Holcombe both permitted material prejudicial to Mr Nemcic to be brought before them, and that this infected their findings and conclusions.

[275] I do not agree.

[276] The material referenced by Mr Nemcic is an email from the AEC’s Ms Garrett on 22 August 2017 providing a background brief to Mr Holcombe. That background information included Ms Feige’s written file note to Mr Hawes of 23 May 2017, and Ms Southall’s chronology of events of 5 April. Mr Nemcic says that views expressed by Ms Garrett in the background brief were prejudicial, and the presentation of this background information prepared by Ms Feige and Ms Southall (but nothing from Mr Nemcic) was prejudicial.

[277] The background information provided was relevant background material. Providing the investigator with the file note made by the person who triggered the process by putting pen to paper (Ms Feige) was unremarkable. Whilst Ms Feige’s file note did make allegations against Mr Nemcic it was a relevant point of background for the investigator to understand how and why the matter had come before him. The background material was not presented as evidence nor did it lead Mr Holcombe to make assumptions or presumptions of wrongdoing on Mr Nemcic’s part or on Ms Feige’s creditworthiness. Mr Holcombe conducted his own inquiries on those matters, gathered his own evidence through interviews with the AEC staff, and drew his own conclusions.

[278] Whilst it would have been preferable for an officer such as Ms Garrett to wait until Mr Holcombe asked for material before sending documents to him, and while it would have been preferable not to express any views about the nature of AEC Values and the APS Code of Conduct (even conditional ones) by way of background, I do not consider that the content of Ms Garrett’s communications was prejudicial.

[279] I accept Mr Holcombe’s evidence that he approached his investigation without pre-determined views, and that the material he received from Ms Garrett was not a material factor in his findings and conclusions. 155

[280] It was also said by Mr Nemcic that Mr Holcombe permitted Ms Feige and Ms Southall to make statements to him during the course of his investigation which were unfair and prejudicial to Mr Nemcic.

[281] There is no doubt that certain aspects of the statements made by both Ms Feige and Ms Southall were critical of and accusatory towards Mr Nemcic. It is unremarkable that an investigator would receive such claims and counter-claims and include such claims and counter-claims in the summary of interviews with such persons if those summaries were a true reflection of what had been told to the investigator. Mr Holcombe approached the material from and statements made to him by Ms Feige and Ms Southall in no materially different manner to the material from and statements made to him by Mr Nemcic, or other persons he interviewed. Mr Holcombe was well aware that he was investigating Code of Conduct breach allegations against both Mr Nemcic and also Ms Southall. He did not treat Ms Southall in a materially different manner than he treated Mr Nemcic or vice versa.

Procedural Fairness: Mr Holcombe relied on Mr Will’s findings

[282] Mr Nemcic submits that Mr Holcombe’s findings, conclusions and recommendations were unsafe, wrongly relied upon and denied Mr Nemcic the procedural fairness required by the AEC Breach Procedures because he relied on Mr Will’s report and findings.

[283] In support of this submission Mr Nemcic points to the fact that there are thirty paragraphs of Mr Holcombe’s report which either exactly or to a significant degree appear in the same form in Mr Will’s report. 156

[284] Factually this is so. However, for the following three reasons I do not consider it evidence of prejudgment or procedural unfairness.

[285] Firstly, there was nothing improper with Mr Holcombe having access to the contents of Mr Will’s report. After all, Mr Will conducted the preliminary investigation which had been the basis for Mr Holcombe being commissioned by the AEC to conduct the full investigation.

[286] Secondly, most (but not all) of the parts of the Will Report transposed into the Holcombe Report deal with matters of an administrative, background, scene-setting or non-controversial nature.

[287] Thirdly, I accept Mr Holcombe’s evidence that he approached his task with an open mind and formed his own view on the facts that came before him, and made his own recommendations irrespective of what Mr Will had decided about whether there was a case to be answered. 157 A reading of Mr Holcombe’s report as a whole supports his evidence in this regard.

Procedural Fairness: Mr Nemcic was not given an opportunity to explain his version of events to Mr Will or Mr Holcombe

[288] Mr Nemcic submits that whilst he was interviewed by Mr Will and then by Mr Holcombe, he was not given a proper opportunity to explain his version of events. He says that the interviews with Mr Will and Mr Holcombe were structured in a way that he was asked questions which he answered. He believes that if the interviews had been conducted as an open discussion about what happened and possible explanations for what happened, then he would have been able to more readily explain his role in the PFA SA election.

[289] I accept, as a general principle, the proposition that simply going through the motion of giving an employee an opportunity to respond without the ability for their explanation to influence the outcome carries risk that an employee has been denied a real opportunity to defend themselves. 158

[290] This is not however the conclusion I reach on a fair consideration of Mr Holcombe’s evidence and the content of his report, including the summary of his interview with Mr Nemcic.

[291] Different investigators adopt different styles. Mr Holcombe was not inexperienced in conducting workplace investigations, including in the public sector. It is not for the Commission to pass judgment on different investigative styles, or the level of formality or informality adopted. The Commission’s role is to consider whether, in an overall sense, the employer provided a fair process in conducting (or commissioning) a workplace investigation and in particular whether that process gave the relevant employee an opportunity to explain their position and have that explanation considered in a manner capable of influencing the investigators and decision-makers.

[292] The evidence before me is that after some initial pleasantries and introductory comments by the investigator, the interviews conducted by Mr Holcombe (including with Mr Nemcic) were largely along a question and answer line. This is a perfectly reasonable method of fact finding, particularly where a degree of precision is required on matters of detail (such as the issues that were before Mr Holcombe). A more informal or wide-ranging discussion about workplace events and personalities and the circumstances as a whole may be appropriate in some circumstances. However, investigating alleged interference with an election count warrants a more robust approach than round-table dialogue. The latter may have the undesirable consequence of deflecting attention from the difficult or awkward questions required to be answered.

[293] Further, there is no evidence before me that Mr Holcombe materially treated Mr Nemcic any differently in the method of interview or the conduct of investigation than other persons.

[294] I conclude that in adopting the investigative method he chose Mr Holcombe did not deny Mr Nemcic procedural fairness nor deny him an opportunity to raise issues, facts or opinions which he considered relevant.

[295] I also conclude that Mr Holcombe was interested in Mr Nemcic’s evidence and his version of events. His responses were capable of influencing the report which he produced.

Procedural Fairness: the AEC breach allegations and findings were unfairly expressed

[296] Mr Nemcic submits that the breach allegations and findings were not consistently expressed in the AEC’s correspondence to Mr Nemcic compared to the Holcombe Report’s expression of the allegations and findings. He says that this was procedurally unfair.

[297] In making this submission Mr Nemcic makes reference to:

• The letter Mr Nemcic received from Mr Nicholl of 30 August 2017 in advance of the investigation advised that he was under investigation for suspected breaches of four sections of the APS Code of Conduct being contraventions of sections 13(1), 13(2), 13(4) and 13(11) of the Public Service Act 1999;

• The conclusion of Mr Holcombe was that there was one allegation (singular) under investigation. That singular allegation referred to both “fudging” and “not performing a further count of the ballot papers”;

• Mr Nicholl’s determination as breach decision-maker (in his letter to Mr Nemcic of 14 November 2017) said “I find that allegations made against you, John Nemcic APS6 classification, are substantiated and that the behaviours are in breach of sections 13(1), 13(2) and 13(11) of the Public Service Act 1999…” (plural); and

• Mr Courtney’s letter of 4 December 2017 to Mr Nemcic referred to the “allegations” (plural) against him.

[298] I accept that Mr Holcombe’s findings referred to an allegation singular, whereas Mr Nicholl’s determination referred to allegations plural. I do not consider this to constitute procedural unfairness to Mr Nemcic. Mr Nicholl’s correspondence of 30 August 2017 put Mr Nemcic on specific notice of the nature of the suspected breaches the subject of investigation. Mr Nemcic knew what Mr Holcombe was investigating and prepared himself accordingly. The fact that Mr Nicholl and Mr Courtney referred to allegations plural in communication with Mr Nemcic after the Holcombe investigation is not material. Mr Nicholl did so in his letter of 14 November 2017 by referencing the finding of the Holcombe Report where the allegation was outlined and the finding presented to Mr Nemcic.

[299] Nor do I consider it unfair that Mr Holcombe described his allegation by reference to two particulars (the fudging and not performing a further count of ballot papers). Doing so did not mislead or misinform Mr Nemcic.

[300] Nor was it unfair that the original communication to Mr Nemcic referred to four alleged breaches of the Public Service Act 1999 whereas only three were referred to in the correspondence from Mr Nicholl and Mr Courtney. The explanation for this is plain. Mr Holcombe had before him an investigation into breach of four provisions of that Act, but only concluded that Mr Nemcic had breached three. He made no finding concerning section 13(4). There was no unfairness to Mr Nemcic in this. Mr Nicholl’s letter of 14 November 2017 informed him of the findings concerning sections 13(1), 13(2) and 13(11). Given that Mr Nicholl and Mr Courtney accepted Mr Holcombe’s findings and recommendations, it was appropriate that they communicated to Mr Nemcic in those terms.

[301] A related submission by Mr Nemcic is that he was never technically informed of “the details of the suspected breaches” prior to Mr Nicholl’s determination, as required by section 43 of the Public Service Act 1999”. 159

[302] I do not agree. Mr Nicholl’s letter of 30 August 2017 under the heading “The allegation” informed Mr Nemcic in sufficient detail of the allegation he was facing. That it was not expressed in exactly the same words as the way it was framed by Mr Holcombe in his report or by Mr Nicholl in his determination is not evidence of unfairness.

Procedural Fairness: the AEC relied on the HWL Ebsworth reports without independent consideration

[303] Mr Nemcic submits that the AEC as an employer, and its decision-makers in particular (Mr Nicholl and Mr Courtney) should have conducted their own independent consideration of the matter without slavishly adopting the findings and recommendations of Mr Holcombe.

[304] I accept the general proposition underlying this submission that an employer risks failing to provide procedural fairness to an employee if they simply terminate a contract of employment on the findings or say-so of an external investigator, without giving the matter independent thought and consideration.

[305] However, in circumstances where the employer has commissioned an arms-length investigation, and has done so under a structured process of investigation set out in established policy (the AEC Breach Procedures), and where that process has provided procedural fairness it is not unreasonable for the employer to form a view, after examining the report and findings, that the findings and recommendations should be adopted.

[306] This is what occurred in this instance. Neither Mr Nicholl nor Mr Courtney failed to consider whether they should adopt the findings and recommendations of Mr Holcombe. They read the report and considered their response, noting though that I have found Mr Nicholl’s failure to seek Mr Nemcic’s response at the time he considered the matter to have been material, but not one that rendered the process, as a whole, unfair.

[307] Further, it was submitted by Mr Nemcic that Mr Will’s report and Mr Holcombe’s report contained prejudicial findings and content against Mr Nemcic and that, by making reference to it, the AEC decision-makers allowed a “poisonous influence” 160 to infect their work.

[308] I do not agree. It is self-evident that in a matter such as this, findings adverse to an employee will be prejudicial to their interests. The fact that an employee disagrees with an investigator’s findings or considers observations on credit or conduct to be objectionable does not make the investigation or its report unfair or infect the decision-making process with unfairness. Mr Will’s report and Mr Holcombe’s report each dealt with relevant matters and made relevant findings and conclusions. The reports were not unprofessional in tone or gratuitous in content. Whether all that they found, concluded or recommended was sound is a matter that Mr Nemcic can legitimately take issue with, but not on the ground that findings adverse to him were prejudicial.

[309] A further and related submission by Mr Nemcic is that neither Mr Will, Mr Holcombe nor Mr Nicholl considered making an open or inconclusive finding to the effect that even if the count had been fudged there was insufficient evidence to conclude by whom or how-so.

[310] I do not accept this submission. Neither Mr Will nor Mr Holcombe were constrained in any way by the terms of their appointment or the AEC Breach Procedures on the type of findings they could make. I am satisfied that both exercised independent judgment and did not arbitrarily exclude alternatives to the findings they made. Whilst the evidence does not point to either expressly rejecting an open finding, Mr Holcombe considered all options. 161 The reasons each gave for making their findings clearly infer that an open finding was not consistent with the views each investigator formed.

[311] Similarly, Mr Nicholl was entitled to form his view having regard to the material before him, and in particular the Holcombe Report, and did so.

Procedural Fairness: the AEC did not give Mr Nemcic access to the HWL Ebsworth reports

[312] Mr Nemcic submits that he was denied procedural fairness because he was denied access to the HWL Ebsworth reports of Mr Will and Mr Holcombe.

[313] I consider there to be some force in this submission with respect to Mr Holcombe’s report. Whereas Mr Will’s report was a preliminary investigation, Mr Holcombe’s report constituted findings of breach, made a non-binding recommendation of sanction at the higher end of the scale, and was used by the AEC decision-makers to determine breach and a dismissal sanction.

[314] The AEC say that the AEC Breach Procedures did not require the provision of the full report of an external investigator to an employee but simply required an employee to be informed about the suspected breach and the intended sanction. 162

[315] The AEC also say that some of the information provided to investigators may have been provided in confidence and it would have compromised that confidence if the identity of those persons or their evidence or submissions were disclosed to persons the subject of investigation.

[316] There is also some force in the AEC submission.

[317] I do not need to determine whether, as a general rule, reports of external or internal investigators commissioned by the Australian Public Service into workplace conduct should be provided in full to employees under investigation in advance of decisions to find breaches or impose sanctions. Lohse’s Case provides some support for the proposition that, at least on its facts, that obligation existed on a Commonwealth government department. 163 However, different employers will approach this question in different ways, and context and circumstance may justify different approaches.

[318] The Commission’s role in this matter is to consider whether the failure to provide Mr Nemcic with the Will and Holcombe Reports in advance of the decisions to determine a breach and impose a sanction was a denial of procedural fairness.

[319] The AEC say that it was not a denial of procedural fairness because the correspondence to Mr Nemcic from Mr Nicholl of 14 November 2017 and from Mr Courtney of 4 December 2017 sufficiently informed Mr Nemcic of the findings and recommendations of Mr Holcombe.

[320] I do not agree.

[321] The information provided to Mr Nemcic in these letters was what was necessary to comply with the AEC Breach Procedures but was minimalist. It provided no basis for Mr Nemcic to understand or respond to why Mr Holcombe reached the findings and made the recommendations he did.

[322] In circumstances where an employee is alleged to have committed serious misconduct that employee is entitled to reasonable information from their employer as to why the employer has concluded or is intending to conclude that they committed serious misconduct. Mr Nemcic did not have the opportunity to ask the external investigator (Mr Holcombe) or the employer’s decision-makers that question.

[323] Mr Courtney in his evidence conceded that, in his opinion, the Will Report and the Holcombe Report should have been provided to Mr Nemcic. 164

[324] I accept that the provision of the whole of the Holcombe Report to Mr Nemcic would have caused potential breaches of confidence given the basis on which the investigators received information and conducted interviews with employees. However, I consider that there is no reason why Mr Nemcic could not have been provided with section 7 ‘Findings’ and section 8 ‘Recommendations’ insofar as those sections concerned findings and recommendations against him. In other words, I consider that it would have been procedurally fair for the AEC to provide extracts of the findings of the Holcombe Report to Mr Nemcic so as to enable him to understand why Mr Holcombe made adverse findings against him, and to discuss or contest those with his employer.

[325] That said, I do not consider this failing to have been of such a nature that it rendered the decision-making process unfair as a whole. Further, there is no evidence before me that Mr Nemcic did not ask to be provided with the Holcombe Report in whole or in part.

Procedural Fairness: the AEC did not give weight to issues submitted in mitigation

[326] Mr Nemcic says that the AEC did not give weight to the mitigation issues on sanction he submitted to Mr Courtney on 11 December 2017.

[327] Those mitigation issues (put in the alternative to his primary position that he did not fudge the tally sheets) were, in summary: 165

• I was not the responsible officer for the PFA SA ballot;

• The alleged breach was uncharacteristic;

• I had a heart attack six months prior;

• I had a reaction to prescription medication;

• The proposed sanction would have deleterious personal and family effects;

• There was no personal benefit from the breach;

• There is no breakdown of trust with and between the AEC;

• There was no opportunity to advance alternate plausible explanations;

• There is no evidence of risk to the AEC or APS reputations; and

• Any management shortcomings should be dealt with as performance, not conduct, issues.

[328] Mr Courtney’s evidence was that he read Mr Nemcic’s mitigation submission, and considered it prior to making his decision.

[329] However, Mr Courtney also gave evidence that he did not consider Mr Nemcic’s personal circumstances (such as his health) to have been relevant to mitigation. Whilst the mitigation submission’s reliance on medical factors may well have fallen well short of being a persuasive or adequate explanation for the misconduct, it was wrong for Mr Courtney to consider Mr Nemcic’s personal circumstances as irrelevant to sanction.

[330] I conclude that whilst Mr Nemcic’s mitigation submission was considered, it was afforded limited weight only given Mr Courtney’s view that the breach finding was serious and his view that protection of the AEC’s reputation was paramount. Mr Courtney’s letter of 13 December makes specific reference to a number of the issues raised in the mitigation submissions, by way of reply. It concluded: 166

“Reviewing your submission in its entirety, I find no compelling evidence or arguments that change my view on the proposed sanction…I have deliberated over all the information made available to me including your response and have carefully considered all available options to me as the Sanction Delegate.

Considering all the factors outlined above and including the potential risk of significant reputational damage to the AEC, given the high levels of scrutiny in the current environment, I have decided to impose the sanction of Termination of Employment under 15(1)(a) of the Public Service Act 1999.”

[331] Although Mr Nemcic’s submissions in mitigation were considered by the sanction delegate, for the reasons expressed, they did not alter the view of the sanction delegate that termination of employment which had been foreshadowed in his letter of 4 December 2017 was appropriate.

Procedural Fairness: the AEC took into account erroneous and irrelevant material

[332] Mr Nemcic says that the Holcombe Report contained multiple errors, including errors of fact, placed reliance on irrelevant material and failed to take account relevant material, and that this carried over into the decisions of the AEC.

[333] Mr Nemcic makes reference to the fact that Mr Holcombe received background information from Ms Garrett about protected action ballots (whereas the PFA SA election was an industrial election and not a protected action ballot). Mr Nemcic also makes reference to errors of fact in the report including (but not limited to):

• That the order of two of the elected candidates was altered by the fudging (paragraph 2.6); and

• The report inaccurately represented Mr Nemcic’s statement as to the alterations he made to the tally sheets (paragraph 6.1).

[334] I agree that these are both errors of fact in the Holcombe Report.

[335] The first error is purely technical. The order of more than two of the elected candidates was altered when one compares the first declaration to the second. 167 However, Mr Holcombe’s primary point in paragraph 2.6 of his report was that the “fudging” did not alter the election result in the sense that the same eight candidates were elected on both declarations. That is factually correct.

[336] The second error is material. Mr Nemcic did not deny to Mr Holcombe that he had altered (in dark blue pen) the number 221 for candidate Tappin in the Southall Summary Tally Sheet by changing it to 230. This is apparent from what Mr Nemcic is recorded to have said to Mr Holcombe at paragraph 29 of his record of interview. 168

[337] The error did not however extend to Mr Holcombe’s findings. Mr Holcombe correctly stated Mr Nemcic’s position in his findings (Section 7 of his report). At paragraph 7.1 he says:

“…it is clear and he does not dispute that the writing in dark blue pen on the summary tally sheet is his…” 169

[338] I am not satisfied that these or any of the factual errors in the Holcombe Report rendered unsafe the findings or conclusions made by Mr Holcombe or constituted a material misunderstanding of the position and denials put to him by Mr Nemcic.

[339] A related submission by Mr Nemcic is that Mr Holcombe operated on the erroneous assumption that Mr Nemcic had legal authority to perform a further recount of ballot papers. It is correct that an element of the allegation made against Mr Nemcic as recorded by Mr Holcombe at paragraph 2.4 of his report was that he “did not perform a further count of the ballot papers”. 170 However, Mr Holcombe does not state in his report that Mr Nemcic did in fact have that authority, nor do his findings directly refer to that matter.171 At best, by finding that “the allegation made against Mr Nemcic has been made out” Mr Holcombe may have inferred that conclusion.

[340] To the extent this is an error in the Holcombe Report, I do not consider it of such seriousness to have rendered his principal findings and recommendations unsafe to be relied upon by the employer. Those principal findings concerned the fudging issue; this much is readily apparent from paragraphs 7.1 to 7.10 of Mr Holcombe’s report.

[341] In any event, for reasons already mentioned, I have found that Mr Nemcic failed in his duty to recommend to the returning officer that a recount of votes should take place.

[342] Mr Nemcic also says that Mr Holcombe’s report was unsafe to be relied upon because he failed to take relevant matters into account, such as motive and character.

[343] Mr Holcombe gave evidence to the effect that he considered his primary responsibility to investigate what had occurred with respect to the PFA SA count, and that the reasons why persons did what they did and issues relevant to character were not relevant. 172 A fair reading of Mr Holcombe’s report and evidence as a whole supports the proposition that he did not give weight to the fact that a person may have been of prior good character in considering whether, on the balance of probabilities, that person committed certain conduct. He also did not consider motive in the sense of why conduct was done relevant to making his findings173, though he did consider factual matters such as opportunity.

[344] A fair criticism can be made of Mr Holcombe’s decision-making process to the extent that he excluded considerations of motive from his fact finding. In a matter where evidence of wrong-doing is circumstantial, motive is not irrelevant although the attribution of motive as an objective fact may not be as easily made or weighty as other considerations. Character, in the sense of a person’s propensity to do right or wrong or their track record of having been a person of good or bad character, is more remote to fact finding but relevant to sanction. Given that Mr Holcombe made non-binding recommendations on sanction, he ought not have considered character as irrelevant.

[345] I do not however consider that these considerations, in and of themselves, denied Mr Nemcic procedural fairness or made the decisions of Mr Nicholl or Mr Courtney unsound. Mr Holcombe’s findings were open to him irrespective of issues of motive or character. Both AEC officers gave their independent thought to the findings and recommendations made in his report. Mr Courtney in particular asked for submissions on mitigation and those submissions, which he considered, dealt with character.

[346] In any event, the Commission’s role is not to simply review the employer’s (or the investigator’s) findings and conclusions and determine whether they were reasonably open or reasonably made. The Commission’s role is to itself be a fact finder and consider whether a valid reason for dismissal existed on the facts before it, and whether the dismissal was harsh, unjust or unreasonable taking into account those facts and other relevant issues in section 387 of the FW Act, including procedural fairness.

[347] Mr Nemcic also claims that the AEC made an erroneous finding of fact in that Mr Courtney concluded that Mr Nemcic had breached the AEC Ballot Paper Principles.

[348] The AEC’s Ballot Paper Principles are set out in Section 3 of the AEC’S Ballot Paper Handling Policy. 174 Mr Holcombe had these before him, but did not make a specific finding that Mr Nemcic had breached this policy. Mr Nicholl’s determination of 14 November 2017 makes no specific reference to this policy. However, Mr Courtney’s letter of 4 December 2017 said:

“your actions contravene the integrity of the AEC Ballot Paper Principles which are an integral part of your employment with the AEC”. 175

[349] As noted, Mr Nemcic says that group tally sheets and summary tally sheets are not ballot papers and therefore the AEC ballot paper principles could not fairly be invoked as a basis for a decision to dismiss.

[350] I have made my own findings on this matter. I note that Mr Courtney’s letter did not claim a breach of the principles but that Mr Nemcic’s conduct breached “the integrity” of these principles. Whilst that observation was reasonably open (for reasons I set out in this decision) it also gave the impression that the ballot paper principles had been breached. Doing so without explanation was careless but did not constitute a denial of procedural fairness or render the sanction imposed unsafe.

Procedural Fairness: the AEC placed undue weight on reputational impacts

[351] Mr Nemcic says that the AEC, in deciding to terminate, placed undue weight on its own reputation at the expense of considering factors relevant to Mr Nemcic’s circumstances including those in mitigation.

[352] In making this submission Mr Nemcic relies primarily on the evidence of Mr Courtney and the AEC’s termination letter in which Mr Courtney says: 176

“Considering all the factors outlined above and including the potential risk of significant reputational damage to the AEC, given the high levels of scrutiny in the current environment, I have decided to impose sanction of termination of employment…”

[353] There is no doubt that Mr Courtney’s concern about reputational damage to the AEC was operative and material in his decision. He was entitled to consider that a material and weighty issue given the AEC’s statutory purpose and responsibilities. Improper interference with the count of an election by an officer of the AEC is, for reasons already outlined, both serious misconduct and a valid reason for dismissal.

[354] However, the issue is whether reputational considerations were elevated to a level that obscured other factors such as Mr Nemcic’s personal circumstances and mitigation submission.

[355] There is some force in Mr Nemcic’s submission. In the abstract at least, when considering whether to dismiss, a myriad of issues can be relevant. An employee’s conduct, as well as their personal circumstances, are no doubt relevant considerations. So too is an employer’s business or reputational interests. The weight to be attached to each consideration (or combination thereof) will vary according to circumstance but none are irrelevant or necessarily overridden.

[356] The evidence of Mr Courtney is that he did consider reputational issues to be an overriding factor in this instance. 177

[357] Whilst I do consider that Mr Courtney placed undue weight on reputational impacts, he did not ignore other relevant considerations. He gave consideration to the seriousness of the breaches that had been found. He only gave fleeting consideration to factors that could weigh in favour of a lesser sanction, and in this respect his analysis was unbalanced. However, it remained open to Mr Courtney to conclude, as he did, that the sanction of termination was appropriate.

[358] I also note that the AEC’s background brief to its investigator referred to “the potential damage to the reputation of the AEC should this matter become known.” 178 These proceedings and this decision is a public process, and necessarily so.

Procedural Fairness: the AEC subverted Mr Nemcic’s Merit Protection Commission review

[359] A substantive ground on which Mr Nemcic contended that he was denied procedural fairness was that the AEC, in deciding to impose a sanction of dismissal, subverted the review which Mr Nemcic had commenced before the Merit Protection Commissioner (MPC).

[360] I have found that Mr Nemcic commenced such a review on 11 December 2017, and that the decision made by Mr Courtney to dismiss on 12 December 2017 (communicated by letter 13 December 2017) had the effect, at law, of depriving the MPC of jurisdiction to further consider his application.

[361] I have also found that Mr Courtney knew that fact, and communicated that fact to Mr Nemcic.

[362] Mr Nemcic says that this action by the AEC was a breach by the AEC of APS Values requiring public sector authorities to act ethically and with integrity. He further says that because there is only one system of review available to public servants provided for in the Public Service Act 1999, then closing-off of that course, once it had been commenced, was unfair both procedurally and in substance. He says that there were reasonable prospects that the MPC would, in substance, have disturbed the determination made by Mr Nicholl. He says that procedurally it denied him the right to exercise rights he had lawfully chosen to invoke.

[363] This is a weighty issue and not one that I have considered lightly.

[364] Even though there is some attraction at first glance to Mr Nemcic’s submission, it is not one that I accept. The AEC, as a statutory authority within the Australian Public Service, does not make the rules that govern the jurisdiction and operation of the MPC and the interaction between those rules and the rights and obligations of a public sector employer to dismiss an employee for serious misconduct. Those rules are made by the parliament through the Public Service Act 1999.

[365] The parliament has decided to establish a rule which removes jurisdiction from the MPC to investigate workplace matters concerning a public servant once that person is no longer a public servant. The parliament has also given agencies of the public service and its authorities the right to terminate the employment of public servants for serious misconduct, subject to compliance with the rules governing such decisions. 179

[366] The AEC exercised a right given to it by law (that is, to dismiss for serious misconduct) a consequence of which was that proceedings before the MPC came to an end. That consequence was the product of a law made by the parliament, not a rule made by the AEC. The circumvention of the MPC’s jurisdiction was a natural and lawful consequence of the AEC’s decision, not the AEC’s decision.

[367] In these circumstances I do not consider that the decision by Mr Courtney was procedurally unfair, notwithstanding the consequence for Mr Nemcic’s MPC application or that the AEC was aware of that consequence.

[368] The proposition that a public sector employer should not proceed to exercise its lawful right to terminate for serious misconduct simply because an application has been made to the MPC is not consistent with the scheme of the Public Service Act 1999. If parliament had intended the MPC’s jurisdiction to trump the right of a public sector employer to dismiss for serious misconduct it could have specified that to be the case. It has not done so.

[369] An associated question is whether, in the circumstances of this matter, the AEC should have exercised a discretion not to proceed with imposing a sanction on Mr Nemcic because he had, two days prior, commenced an MPC review.

[370] I do not think so. By 11 December 2017 when Mr Nemcic commenced his MPC review the matter was well advanced. There had been both a preliminary investigation, and a full investigation. He had been informed on 14 November 2017 that the breach decision-maker had made a determination, of the details of that determination and that an MPC review was open to him. 180 The AEC came to the view that Mr Nemcic had committed a serious breach of duty by “fudging” a ballot count. Nearly four weeks had elapsed after that notification before he commenced MPC proceedings. He knew that the sanction decision-maker was considering termination, and had made submissions in mitigation.

[371] In these circumstances, it was not procedurally unfair for the AEC to proceed with the imposition of sanction.

[372] Whilst this did circumvent Mr Nemcic’s application to the MPC, the AEC did not conceal this consequence from him. Mr Courtney’s letter of 13 December 2017 specifically drew attention to that consequence.

[373] Further, whilst Mr Nemcic was denied the right to further prosecute his MPC application, he became entitled to issue these proceedings in the Fair Work Commission under the provisions of the FW Act. The AEC also specifically drew that fact to his attention. Albeit different jurisdictions with materially different powers and considerations, these proceedings have ventilated many of the issues which Mr Nemcic had sought to bring before the MPC.

[374] For these reasons, the AEC did not act unreasonably despite its sanction circumventing Mr Nemcic’s MPC review.

Conclusion on procedural fairness

[375] Taking all of these factors into account, I conclude that whilst there were material failures in procedure by the AEC, including in both the Holcombe Report and in Mr Nicholl’s and Mr Courtney’s consideration of the matter in advance of making determinations and decisions, those failures of procedure when considered in the context of the investigation and decision-making processes of the AEC as a whole did not individually or cumulatively deny Mr Nemcic procedural fairness.

Opportunity for support person (section 387(d))

[376] Mr Nemcic submits that he was unreasonably denied the opportunity for a support person because he was informed that if he brought along a support person to the interviews with Mr Holcombe that person could not speak or intervene on his behalf.

[377] Mr Nemcic did not bring a support person to any of the interviews conducted by Mr Will or Mr Holcombe, nor did he request permission to do so.

[378] Mr Nemcic’s submission relies on the following extract of Mr Nicholl’s letter to him of 30 August 2017: 181

“You may have another person present at the interview to act as an observer, but not to speak or intervene on your behalf. The person may be a colleague, relative, friend, union delegate, or legal counsel.”

[379] Mr Nemcic says that an observer is not a support person; therefore, section 387(d) was not complied with by the AEC.

[380] Mr Holcombe observed in his summary of interview with Mr Nemcic (which Mr Nemcic certified as accurate): 182

“I told Mr Nemcic that he could have a support person (as had been told to him before). Mr Nemcic was comfortable continuing with the interview without a support person.”

[381] Mr Will’s report similarly records this in his summary of interview with Mr Nemcic. 183

[382] As an aside, this is an example of where Mr Holcombe appears to have lifted preliminary material from Mr Will’s report into his report. Attachment 4 paragraph 4 of Mr Will’s report is found at attachment 1 paragraph 6 of Mr Holcombe’s summary of interview, resulting in Mr Holcombe quite unnecessarily twice stating that Mr Nemcic was offered a support person.

[383] The opportunity for an employee under investigation to have a support person during a disciplinary process is of significance given that it is specifically referenced in the FW Act’s statutory scheme. The FW Act does not however define what a support person is.

[384] Whilst it would be unreasonable for an employer to apply a hard and fast rule in the conduct of a disciplinary interview that a support person could not speak a word (for example, they may wish to speak to the relevant employee), it is not unreasonable for an employer to preclude, as a general rule, a support person from being that employee’s advocate. 184 Ultimately, its employment relationship is with the employee, and the employer or its investigator is entitled to seek direct responses from an employee where allegations of misconduct by that employee are under investigation.

[385] A fair reading of Mr Nicholl’s advice to Mr Nemcic was that he was conveying, albeit poorly, information that a support person would be permitted but that their role would be limited. Further, whilst the wording of Mr Nicholl’s advice to Mr Nemcic about his right to have a support person gave the impression of inflexibility, Mr Nemcic did not test the extent to which the notion of a support person only observing but not speaking would be applied in practice. He chose not to ask Mr Nicholl nor Mr Holcombe questions about that or bring a support person with him.

[386] I conclude that the AEC did not unreasonably refuse Mr Nemcic a support person.

Warnings concerning performance (section 387(e))

[387] I have made findings that this matter concerned conduct, not performance. I have also made findings that Mr Nemcic had a long career in the public sector including ten years with the APS, all in the service of the AEC.

[388] Mr Nemcic rose to the level of Manager of the ICE Unit in South Australia. He had been a returning officer in multiple federal electorates in the State.

[389] There is no evidence before me that Mr Nemcic had relevant prior counselling or warnings concerning his performance in advance of the PFA SA election. All the indications are that he had an unblemished record and was a committed Commonwealth public servant.

Size of employer’s enterprise (section 387(f)) and human resource capability (section 387(g))

[390] The AEC is a business of a substantial size across the nation (including in regions), whose workforce fluctuates according to electoral cycles. It has dedicated human resources capability through its People and Services Branch. It has well-developed induction and training programmes. It has access to the human resources, personnel and industrial advice and capabilities of the Australian Public Sector. It is an employer equipped to undertake and commission disciplinary processes and workplace investigations.

Other matters (section 387(h))

Mitigation: Harsh impact on Mr Nemcic

[391] It was submitted by Mr Nemcic that his dismissal was harsh because of the impact it has had on him.

[392] I have made findings that his dismissal has had substantial adverse personal, reputational, career and financial impacts on Mr Nemcic. Some of these are outlined in both his evidence and in his submission in mitigation put to Mr Courtney. These impacts are particularly profound at his age and given his family responsibilities and standing in the community.

[393] However, in considering the significance of this factor I must weigh it alongside the self-evidently serious nature of the breaches, as well as my overall findings concerning procedural fairness.

[394] I also take into account that despite the harsh impacts on Mr Nemcic being very real, they are not unique amongst other dismissed employees of his age and work history. Such factors alone do not outweigh conduct in breach of policy or act to sufficiently transform a dismissal for a valid reason into one that can be characterised, at law, as harsh. 185

Conclusion

[395] This case concerns summary dismissal for serious misconduct.

[396] Although the evidence before me discloses a lamentable catalogue of failures 186 in the conduct of an industrial election by the AEC and some of its officers, my role is not to consider whether those failures were systemic or simply isolated to this particular industrial election. My role is to consider whether the dismissal of the AEC’s SA ICE Manager was harsh, unjust or unreasonable.

[397] The onus of proof in establishing that a dismissal was harsh, unjust or unreasonable rests on an applicant, in this case Mr Nemcic.

[398] However, in cases such as this, the employer carries a considerable evidentiary burden of proof. I have made findings of fact having regard to the evidentiary onus borne by the employer. Those findings of fact have been based on the requisite standard of proof.

[399] I have found that in the course of his employment Mr Nemcic knowingly and intentionally altered without proper reason the votes of a candidate in an industrial election. They were not premediated alterations but were deliberately made in the moment. He secured no personal benefit but it was in his professional interest to have the matter resolved.

[400] I have found that this was serious misconduct and a valid reason for summary dismissal.

[401] I have also found that Mr Nemcic was not truthful to his employer or its investigators about his conduct.

[402] I have also found related failures of duty.

[403] I have found that material deficiencies occurred in the investigative and disciplinary process which led to his dismissal.

[404] Further, I have found that the dismissal has had a harsh impact on Mr Nemcic and is a substantial set-back in his career. After a career without blemish they were uncharacteristic breaches. As said by Mr Nemcic in his evidence, “I was not at my best, obviously.” 187

[405] The ambit of the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd  188 as follows:

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

[406] In reaching my conclusion, I adopt the approach set out by a full bench of this Commission in B, C and D v Australian Postal Corporation T/A Australia Post: 189

“[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.

[59] It is in that weighing that the Commission gives effect to a ‘fair go all round’.”

[407] I have found that the failures of duty were serious by virtue of:

• the nature of the activities undertaken by the AEC including its obligations at law and as the principal Australian institution entrusted to conduct national, industrial and other elections;

• the impact on the integrity of the declared outcome of the votes cast in the relevant election;

• the AEC’s proper need to enforce and sanction breaches of policies and procedures especially where they concern the conduct of elections;

• the AEC’s legitimate concern about reputational risk and its obligation to not breach its duties to its clients, the parliament and the public;

• the AEC’s loss of trust and confidence in Mr Nemcic (especially given his unwillingness to concede specific wrongdoing); and

• that Mr Nemcic was an experienced officer in a managerial role and had been trained in the norms expected of employees, including in the conduct of elections.

[408] These factors weigh heavily in favour of not disturbing what is a valid reason for dismissal.

[409] I give full weight to the deficiencies in the investigative and disciplinary process, some of which were technical in nature but others which were material. However, I have concluded that the investigative and disciplinary process, considered as a whole, did not deny Mr Nemcic procedural fairness.

[410] I take into account and apply the recent observations by a full bench of this Commission in Federation Training v Sheehan: 190

“It is trite to observe that any issue/s of procedural unfairness may not be of such significance as to outweigh the substantive reason/s for an employee’s dismissal, particularly in cases of misconduct where the proven misconduct is of such gravity as to outweigh any other considerations in respect to ‘harshness’, such as age, length of service, employment record, contrition or personal and family circumstances.”

[411] I also give full weight to factors in mitigation including Mr Nemcic’s long and unblemished prior service and the harsh impacts on Mr Nemcic, who has been a person of standing and substance, and who had paid a significant price for the errors made. However, for reasons outlined, those harsh impacts are not unique. Moreover, in a case such as this, long service cuts both ways. Especially in light of returning to a managerial role from recent poor health, it demonstrates a commitment to the organisation and the fact that his service was unblemished is evidence that the misconduct I have found was indeed uncharacteristic. This weighs in Mr Nemcic’s favour. However, his long service together with Mr Nemcic’s managerial role and training also weigh against Mr Nemcic in that he is without excuse in bearing a responsibility to set an example of complying in all circumstances with AEC electoral procedures, including maintaining integrity in election counts.

[412] Taking all of these factors into account, Mr Nemcic’s dismissal was not harsh, unjust or unreasonable within the meaning of section 387 of the FW Act. The breaches were serious; made more serious as they were committed by an experienced officer of the AEC. They were valid reasons for summary dismissal. Mr Nemcic was not, in an overall sense, denied a fair go.

[413] Good people make mistakes, including bad ones. It does not make them bad people. In cases such as these, the Commission’s responsibility is to concern itself with the alleged conduct and the circumstances as a whole, based on evidence before it. Where an employee has committed misconduct and that misconduct is serious it provides a valid reason for summary dismissal. In this case, no other factors individually or in combination convince me that Mr Nemcic’s dismissal was harsh, unjust or unreasonable.

[414] The application is dismissed. I issue an order to that effect in conjunction with the publication of this decision.

[415] Finally, in view of the length and complexity of proceedings, which at times took on forensic proportions, I recognise the preparation, persistence and conduct of the case by counsel for both Mr Nemcic and the AEC. Both Mr Moloney and Ms Stewart assisted the Commission in testing and navigating the voluminous evidence. The grant of permission under section 596 of the FW Act for the parties to be legally represented materially aided the efficiency of what were lengthy and complex proceedings.

DEPUTY PRESIDENT

Appearances:

P. Moloney, with permission, for the Applicant

K. Stewart and D. McLachlan, with permission, for the Respondent

Hearing details:

2018.

Adelaide.

8, 9, 10, 11 May, 18, 19, 26 June and 4 July.

Printed by authority of the Commonwealth Government Printer

<PR700192>

 1   [2018] FWC 1565 and PR601213

 2   [2018] FWC 2427 and PR606712

 3   [2018] FWC 2540 and PR606862

 4   [2018] FWC 2404

 5   Statement of John Nemcic of 3 April 2018 attaching 21 documents (A1); Statement of John Nemcic of 10 April 2018 attaching 1 documents (A2); Statement of John Nemcic of 30 April 2018 attaching 5 documents (A3)

 6   Statement of Jude Feige dated 24 April 2018 attaching 5 documents (R3)

 7   Statement of Jennifer Southall dated 24 April 2018 attaching 8 documents (R7)

 8   Statement of Jonathan Nicholl dated 24 April 2018 attaching 7 documents (R8)

 9   Statement of Tim Courtney dated 24 April 2018 attaching 9 documents (R9)

 10   Statement of Lex Holcombe dated 24 April 2018 attaching 22 documents (R6)

 11   Statutory Declaration of Anne-Maree Lisa Garrett dated 4 May 2018; Statutory Declaration of Paul Bernard Davis dated 8 May 2018

 12   LH5

 13   LH22

 14   JN8

 15   TC9

 16   Pearse v Viva Energy Refining Pty Ltd [2017] FWCFB 4701 at [14]. See also section 591 of the FW Act and King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, 17 March 2000) Print S4213 at [61] - [62]; Enterprise Flexibility Agreement Test Case (Print M0464) at page 13; Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 509

 17   PN 5322; 5328

 18   PN 4869 - 4873

 19   Section 7(1)(g) Commonwealth Electoral Act 1918

 20   Ibid section 6(2A)(a)

 21   Section 380 FW Act

 22   Section 437(4) FW Act;

 23   Section 182 Fair Work (Registered Organisations) Act 2009

 24   A4

 25   A5

 26   A6

 27   PN 117 - 118

 28   A1 Statement #1 of John Nemcic paragraph 38

 29   R7 Statement of Jennifer Southall paragraph 7

 30   A1 Statement #1 of John Nemcic paragraph 48

 31   A1 Statement #1 of John Nemcic paragraphs 42 – 46 and Attachment 2

 32   A1 Statement #1 of John Nemcic paragraphs 50 – 55

 33   There is an evidentiary dispute as to whether a non counting employee Ms Hill was in the room at the time. Mr Nemcic says she was not. Ms Southall says she was, in order to preserve compliance with the AEC ballot paper handling rules prohibiting an officer being alone in a room with ballot papers. I prefer Ms Southall’s evidence on this point.

 34   JS4

 35   PN 124

 36   PN 5038 - 5039

 37   I do not consider it necessary to determine how Ms Southall came to be so informed by Ms Scheffler. There is inconsistent evidence of Ms Southall on this matter. She variously claimed it was by email but no email was produced or could be located by the employer after searches of its IT system. In oral evidence she maintained it was by email but then conceded it could have been by phone or both. This inconsistent evidence goes to the reliability of Ms Southall’s evidence, and is an example of why I treat her evidence with appropriate caution.

 38   PN 641

 39   A1 Statement #1 of John Nemcic paragraph 87

 40   PN 5089 - 5091

 41   PN 4171 - 4174

 42   PN 5300

 43   A1 Statement #1 of John Nemcic paragraph 92 – 95; R7 Statement of Jennifer Southall paragraph 46

 44   R3 Statement of Jude Feige paragraphs 32

 45   R7 Statement of Jennifer Southall paragraph 54

 46   PN 5311

 47   R7 Statement of Jennifer Southall paragraph 55; A1 Statement #1 of John Nemcic paragraph 103; PN 4699

 48   PN 5225; 5228

 49   A1 Statement #1 of John Nemcic paragraph 104

 50   R7 Statement of Jennifer Southall paragraph 55

 51   A1 Statement #1 of John Nemcic paragraph 103

 52   JS8

 53   R7 Statement of Jennifer Southall paragraph 59

 54   R3 Statement of Jude Feige paragraphs 32 – 33; PN 4503 - 4516

 55   R7 Statement of Jennifer Southall paragraph 61

 56   PN 4564 - 4578

 57   JF4

 58   LH5 (Will Report Attachment 1 Attachment 5)

 59   JS9

 60   A1 Statement #1 of John Nemcic Attachment 6

 61   A1 Statement #1 of John Nemcic paragraph 113

 62   A1 Statement #1 of John Nemcic Attachment 5 and Attachment 7

 63   LH5 paragraph 5.5

 64   JN3

 65   LH1

 66   LH22 paragraphs 7.8 and 7.11

 67   LH22 paragraphs 8.3 and 8.4

 68   LH22 paragraphs 7.26 – 7.27, paragraph 7.35

 69   LH22 paragraph 7.35

 70   JN8

 71   TC2 Minute Stacey Smith to Tim Courtney 15.11.17

 72   TC7

 73   TC8

 74   A1 Statement #1 of John Nemcic Attachment 13

 75   A1 Statement #1 of John Nemcic Attachment 15

 76   TC9 page 3

 77   A1 Statement #1 of John Nemcic Attachment 18

 78   PN 603

 79   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]

 80   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

 81   Ibid

 82   King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 [24]

 83   Edwards v Guidice (1999) 94 FCR 561 [6]-[7]

 84   Budd v Dampier Salt Ltd (2007) 166 IR 407 at [14] - [16

 85   Briginshaw v Briginshaw (1938) 60 CLR 336

 86   (1992) 110 ALR 449

 87   Edwards v Guidice (1999) 169 ALR 89 at 92 per Moore J

 88   Parker v Garry Crick’s (Nambour) Pty Ltd t/as Crick’s Volkswagen [2018] FWCFB 279 at [124] – [125]; Hill v Peabody Energy Australia PCI Pty Ltd [2017] FWCFB 4944 at [15]; Heinz Company Australia Ltd v Green [2014] FWCFB 6031 at [14] – [15]; Budd v Dampier Salt Ltd (2007) 166 IR 407 at 14 - 16

 89   R1. This exhibit also contains other original tally sheets relating to the PFA SA election.

 90   PN 1559 – 1561; 1569 – 1574; 1580 – 1583; 1589 – 1590; 3860 – 3864; 4529 - 4531

 91   R7 Statement of Jennifer Southall paragraph 57

 92   PN 4837; 5102 – 5114

 93   PN 5213

 94   PN 5182 – 5184; 5465; 5486 - 5487

 95   PN 5191

 96   PN 5197 – 5198; 5465; 5479; 5482

 97   R6 Statement of Lex Holcombe LH22 Attachment 1 paragraph 29; see also PN 181 – 183; 657

 98   PN 4706 – 4710; 4832

 99   PN 1736 – 1742; 3944 - 3959

 100   PN 5274

 101   PN 4115 – 4117; 4036 - 4039

 102   PN 4201 - 4203

 103   PN 1762

 104   PN 185 - 186

 105   PN 214 - 217

 106   PN 231

 107   PN 1533 – 1536; 1564

 108   PN 1768

 109   PN 379

 110   PN 642

 111   PN 168

 112   PN 285 - 288

 113   PN 637; PN 643

 114   PN 293 - 297

 115   PN 4804 - 4813

 116   PN 302

 117   PN 176 – 177; PN 181

 118   PN 4303

 119   PN 537

 120   PN 538

 121   PN 312

 122   PN 662

 123   PN 227 - 228

 124   PN 750 - 759

 125   PN 786

 126   PN 788

 127   PN 793

 128   PN 169

 129   TC9

 130   PN 618

 131   A1 Statement #1 of John Nemcic paragraph 110 Attachment 5 page 1

 132   A1 Statement #1 of John Nemcic paragraph 112 Attachment 7 page 1

 133   PN 328 - 351

 134   PN 382

 135   PN 382

 136   PN 642

 137   JS9 page 2

 138   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371

 139   Blyth Chemicals Ltd v Bushnell (1933) 49CLR 66 at 81 - 82

140 Ali v Toll In2 Store [2010] FWA 7426; Browne v Coles Group Supply Chain Pty Ltd [2014] FWC 3670; B, C and D v Australia Postal Corporation [2013] FWCFB 6191 at 36

 141   PN 397 – 399; R2; A11

 142   TC9

 143   LH5 Attachment 4

 144   LH22 Attachment 1

 145   Applicant’s Closing Written Submissions paragraph 199 Annexure 2 footnote 10

 146   (2009) FCA 1118

 147   Applicant’s Closing Written Submissions paragraph 190

 148   R8 Statement of Jonathan Nicholl paragraph 19

 149   JN3 page 3 recommendation 4

 150   JN5

 151   PN 1853 – 1868; 2502 - 2503

 152   A5 page 7 of 8

 153   R6 Statement of Lex Holcombe paragraph 7

 154   PN 2065 - 2066

 155   PN 2327; 2308; 2316 - 2319

 156   Applicant’s Closing Written Submissions paragraph 199 and Annexure 2

 157   PN 2382; 2639; 2903; 3176; 3742

 158   Wadey v YMCA Canberra [1996] IRCA 568

 159   Applicant’s Closing Written Submissions paragraph 199 Annexure 2 footnote 9

 160   Applicant’s Closing Written Submissions paragraph 205

 161   PN 3373 - 3375

 162   A5 section 4

 163   (2009) FCA 118 at [30]

 164   PN 7023 - 7028

 165   TC8

 166   TC9 page 3

 167   JS5 comparted to JS8

 168   LH22 Attachment 1 paragraph 29

 169   LH22 paragraph 7.1

 170   LH22 paragraph 2.4

 171   LH22 paragraph 7.11

 172   PN 2800 - 2801

 173   PN 2362 – 2365; 2802 - 2805

 174   TC6

 175   TC7 page 2

 176   TC9 page 3

 177   PN 7289 – 90; 7335 - 7338

 178   LH2

 179   Kathuria v Australian Taxation Office [2015] FWC 8553 at [122] – [123]

 180   PN 553 - 555

 181   JN6 page 2

 182   LH22 Attachment 1 paragraph 5

 183   LH5 Attachment 4 paragraph 4

 184   Victorian Association for the Teaching of English Inc v Debra de Laps [2014] FWCFB 613 at [52]

 185   For example, Dawson v Qantas Airways Limited [2017] FWCFB 1712 at [48]

 186   These failures include (1) an AEC officer with no experience in a contested ballot being appointed returning officer of a contested ballot; (2) ballot papers in an election being counted and recorded in different ways by three different counting groups; (3) a returning officer losing control of a count; (4) candidate totals being recorded by officers shouting numbers aloud across a room; (5) summary tally sheets being prepared from whiteboard data, not from ballots; (6) a returning officer being unaware that a declaration needed to reconcile between total formal votes cast and total formal candidate votes; (7) a declaration being issued by reference to whiteboard data, not a tally sheet; (8) a declaration being issued with hundreds of votes cast failing to be included; numbers on tally sheets being blotted out with liquid paper; (9) multiple coloured pens being used on tally sheets; (10) numbers on tally sheets being overwritten by hand, even where numbers were legible; (11) yes votes for a candidate being increased for no proper reason; (12) tally sheets being taken away, analysed and marked in a private room; (13) a manager failing to inform a returning officer how he made a count reconcile; (14) a returning officer issuing a second declaration without finding out how a count had been reconciled; (15) a returning officer failing to report concerns by a staff member that a count had been improperly altered; and (16) an AEC client being misled about what had occurred once they raised concerns.

 187   PN 673

 188   [1995] HCA 24; (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ

 189   [2013] FWCFB 6191

 190   [2018] FWCFB 1679 at 55; see also McGrath v Sydney Water Corporation [2013] FWC 793 at [379] per DP Sams: “In addition, it goes without saying that any issue or issues of procedural unfairness may not be of such significance as to outweigh the substantive reason/s for an employee’s dismissal, particularly in cases of misconduct where the proven misconduct is of such gravity as to outweigh any other considerations such as age, length of service, contrition and issues of procedural unfairness generally.”