Vindicated by ICAC, but sacked SES whistleblower still without job - Public Service Association

Vindicated by ICAC, but sacked SES whistleblower still without job

SMH – Aug 30, 2014

The corruption watchdog found she was improperly sacked from the State Emergency Service as a “reprisal” for exposing potential misconduct in the ranks.
But Tara McCarthy is still waiting to be reinstated in the “job of her dreams” – and the government says it is powerless to do so.

Ms McCarthy, the first female deputy commissioner of the SES in its 60-year history, was vindicated in May when the Independent Commission Against Corruption found her boss Murray Kear had acted corruptly by sacking her a year ago for making allegations against his “mate” Steve Pearce.

“I can’t believe that they can’t just reappoint her, given that the ICAC found the original sacking was a corrupt sacking,” Public Service Association general secretary Anne Gardiner said.

Emergency Services Minister Stuart Ayres says he is unable to give Ms McCarthy her job back because it is a matter for the head of the Justice Department, Andrew Cappie-Wood, and Public Service Commissioner Graeme Head.

Ms McCarthy said she had been negotiating with the men “for three months and it feels as if I am on a merry-go-round, going nowhere … with no decisions made and no offer of reinstatement”. Ms McCarthy, a former paramedic and a mother of two teenage boys, said her “unlawful and corrupt sacking was devastating enough, but now the failure of the government to provide me with the protections they promise to whistleblowers is soul-destroying”.

“All I ask is to be reinstated to the job I loved, a job I should rightfully have,” she said.

Ms McCarthy said she would also consider a permanent position of equivalent rank and responsibility. But the only offer on the table has been for a temporary and more junior role at another organisation.

In a letter to Mr Head on July 15, Mr Cappie-Wood said it was his “firm view” that Ms McCarthy’s “wellbeing and safety” would be at risk if she returned to the SES.

But he said in a statement that he and Mr Head remained in “active discussions” with Ms McCarthy about her future.

A spokeswoman for the Public Service Commission said that existing whistleblower laws – introduced 20 years ago – did not have a mechanism for reinstating senior executives “where removal has occurred contrary to the legislation”.

“Hence there is no legal capacity to reinstate Ms McCarthy in the role she held in the NSW State Emergency Service or an equivalent role,” the spokeswoman said.

The commissioner was finalising advice for the government’s consideration “on mechanisms that would enable reinstatement”, including where a person was sacked as a reprisal for whistleblowing.

Ms Gardiner believes “a good option” would be for the minister to intervene and exercise his power to appoint Ms McCarthy as commissioner or acting commissioner of the SES.

Mr Kear resigned as commissioner earlier this year after the ICAC findings. Mr Pearce remains on leave with full pay.

Greens MP David Shoebridge said unless Ms McCarthy was reinstated “after being entirely vindicated by an ICAC hearing … it shows the state’s whistleblower protection laws are worthless”.

“There needs to be a change in focus in the state’s laws that makes reinstatement the primary remedy for any whistleblower whose claims are validated in either ICAC or civil proceedings,” Mr Shoebridge said.

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