This is an application for leave to appeal and, if leave is granted, an appeal against a decision of Murphy C in Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice [2016] NSWIRComm 1036 ('the impugned decision'). That was a decision in the context of an application brought by the respondent pursuant to s.84 of the Industrial Relations Act 1996 (NSW) ('the Act').
The decision was handed down on 11 October 2016. The appeal proceedings were filed within the time prescribed by s 189 of the Act. A stay of the decision was granted, on terms formulated by consent, by the then-President on 9 November 2016.
On 20 February 2017, the appellant was granted leave to file an amended application for leave to appeal and appeal.
[2]
The decision at first instance
The respondent was employed as a Corrections Officer. He was dismissed from his employment, after 22 years' service, following a finding that he had committed misconduct in relation on three separate occasions involving physical interaction with inmates of a correctional centre.
The proceedings which led to the impugned decision required the Commissioner to form a view, on the evidence, whether the respondent had committed the misconduct alleged, and then to apply the tripartite test prescribed by the Act of assessing whether the dismissal was harsh or unreasonable or unjust: Act, s.84; Bankstown City Council v Paris (1999) 100 IR 363.
The behaviour characterised as misconduct was essentially admitted and was the subject of little factual controversy. The Commissioner found that misconduct had occurred. He was then, as we say, required to apply the tripartite test prescribed by s.84 of the Act.
In that context the Commissioner heard evidence about the respondent's service record, which was long and exemplary, and evidence about mental health problems which had affected the respondent and which may have had a bearing on his conduct. That evidence was tested in cross-examination.
Having found that misconduct had occurred, the Commissioner's approach to the task of addressing the tripartite test bears setting out. Firstly, he carried out an analysis of each individual incident of misconduct on which the dismissal was based. Having referred, by reference to Full Bench authority, to the meanings of 'harsh', 'unreasonable', and 'unjust', he went on:
94. In the present case there are a number of significant mitigating factors which, in my opinion, must be weighed in the balance against the seriousness of Mr Wattie's misconduct. They are:
1. Mr Wattie's 22 years of unblemished, indeed decorated, service.
2. The extremely negative impact the dismissal has had on Mr Wattie personally, given the difficulty he has had in finding alternative employment.
3. The significant level of provocation involved in two of the three incidents and, to some extent at least, an element of self-defence.
4. The acceptance by Mr Wattie of responsibility for his overreactions during the three incidents as evidenced by his pleas of guilty to the three assault charges.
5. The confluence of personal and work related issues which negatively impacted upon Mr Wattie's mental state prior to and at the time of the three incidents.
6. The medical evidence from Dr Westmore, Dr Chandrasekara and Dr Chan, in particular, Dr Chan's evidence as to the likely link between Mr Wattie's depressive symptoms and poor impulsive control and the assaults.
7. Mr Wattie's genuine contrition and his determination to improve his mental health as demonstrated by his completion of the 18 week anxiety/depression skills program.
8. The positive prognosis for Mr Wattie as evidenced by Dr Chan's assessment that he would not pose any significant risk in reoffending.
95. In relation to the issue of medical evidence being considered as a mitigating circumstance I note the following passage from the decision of the Full Bench in Corrective Services NSW v Danwer ([2013] NSWIRComm 61 (16 July 2013) per Boland J, President, Staff J, Backman J):
[57] We have considered whether there are any mitigating factors in relation to the respondent's conduct. The evidence about that is not very clear. On the one hand, there was the evidence of Dr Tony Robinson who had a doctorate in clinical psychology and practised as a clinical psychologist. Dr Robinson stated:
There is no evidence that Mr Danwer is suffering a psychosexual disorder (ie exhibitionism). It is my thought that if he was acting in an unusual way, it may be explained more by his hyperthyroidism condition that was undiagnosed at the time.
[58] On the other hand, Dr Robinson said in a later report that Mr Danwer 'has a good understanding of how exhibitionism can affect ...its victims." Further, the respondent had undergone a series of sessions of "focussed psychosexual treatment".
[59] If there had been reliable medical evidence that the respondent's conduct had been caused or contributed to by mental or physical illness that may have been a factor to be taken into account in mitigation: see Wells and Commissioner of Police [2000] NSWIRComm 157; (2000) 100 IR 106; Bradley Smith v Commissioner of Police (No. 4) [2010] NSWIRComm 14; Fire Brigade Employees' Union of New South Wales (on behalf of Brendan O'Donnell) and Fire & Rescue NSW [2013] NSWIRComm 57. However, there was no medical evidence (a clinical psychologist is not a medical doctor nor a psychiatrist) and even if Dr Robinson's evidence could have been regarded as such, it was inconclusive for the purpose of any consideration about mitigation.
[60] We do note the magistrate who convicted Mr Danwer of the offence expressed the opinion at the time that the respondent was not likely to re-offend. However, that opinion was not based on medical evidence. Nor was the observation by Colefax DCJ that the respondent's conduct was aberrational.
96. By contrast to that matter, in the present case there is reliable medical evidence that Mr Wattie's conduct was caused by or contributed to by mental illness that he was suffering at the time of the incidents which led to his dismissal.
97. Weighing all of these mitigating factors against the seriousness of the misconduct, I am of the opinion that the dismissal of Mr Wattie was, in all the circumstances, harsh.
The Commissioner then went on to reinstate the respondent in his employment, but without making any order for payment for the period between dismissal and reinstatement.
[3]
Principles on leave to appeal
It is important to bear in mind that under the Act an appeal does not lie as of right against a first-instance decision of the Commission. Leave has to be sought and granted before any appeal is heard. Accordingly, we turn first to the question of leave to appeal.
The principles in relation to the grant of leave to appeal a decision of the Commission were canvassed, sufficiently recently, in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16, in which the Full Bench observed at [10] and [11]:
[10] It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2)[2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal.
[11] The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263:
[5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) [1999] NSWIRComm 576; (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407 at [52] - [55] and Knowles at 381 - 382) and, subject to the requirements of s 188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price [2000] NSWIRComm 117; (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5].
(See also the recent decision in Raveena Singh Rai v State Transit Authority of New South Wales [2015] NSWIRComm 27 which referred to the decision in New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Liverpool City Council [2014] NSWIRComm 17).
Further, we reiterate the observations of the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 392, referring to the then-recently enacted provisions of the Act: "The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State."
We note that the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 also held, immediately before the statement set out above, that an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. We endorse and apply that approach.
Lastly, we add, as the Full Bench said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error. This is by no means a new element of the Commission's jurisprudence; it has long been held that an appellate body in an appeal of this nature will only substitute its own judgment where the first-instance decisionmaker has fallen into error of law, or made a finding of relevant determinative fact that is demonstrably wrong: Drake Personnel Ltd v Workcover Authority of NSW (1999) 90 IR 432 at 440. There will rarely be utility in granting leave to appeal where that degree of error cannot at least arguably be agitated on appeal.
Drake is also authority for the proposition, which we endorse, that it is wrong on appeal to adopt a narrow approach, combing through the words of the first instance decision seeking error, or to transform error in form to one of substance (at 458). That will have a bearing on consideration of a grant of leave to appeal.
[4]
Consideration of grant of leave
The appellant, in its written Outline of Submissions and in oral submissions today, sought that leave to appeal be granted essentially on three bases. The first was that the appeal raises important questions of principle concerning the interaction of the applicable Departmental policy concerning the use of force on inmates and the unfair dismissal provisions of the Act.
The second was that the Commissioner failed to apply "orthodox industrial jurisprudence" when determining the nature of the misconduct engaged in by the respondent. This ground was developed by a submission that the Commissioner had conflated his analysis of the charges of misconduct, and accordingly failed properly to identify what constituted the misconduct that led to the dismissal.
Thirdly, following on from the second proposition, it was said that the Commissioner misdirected himself on the test to apply in determining whether the dismissal was 'harsh'.
As to the first identified ground, we do not see that the appeal raises any overarching question of principle concerning the interaction of the relevant policy and the Act. Each application brought pursuant to s.84 of the Act is to be treated on its own merits. A decision about whether an individual dismissal could be regarded as harsh, unreasonable or unjust will depend on the facts of that case including, necessarily, consideration of any policy that the employee was bound to follow and, equally necessarily, any mitigating circumstances.
It was said by the appellant that the Commissioner failed to address the appellant's policies in assessing the misconduct. We do not agree. First, the Commissioner made an express finding of misconduct, having heard all the evidence and submissions. It is clear from the words of the decision at paragraph 78, and even more starkly clear at paragraph 101, that in doing so he expressly and specifically had regard to the respondent's policies.
Indeed, it is apparent from the decision at paragraph 101 that the Commissioner not only determined that the misconduct weighed in the exercise of his discretion, in that he ordered no back pay despite ordering reinstatement, but expressed a clear message to the applicant below that any future breach of the appellant's policies would 'almost certainly result in his dismissal'. It cannot be said that the Commissioner had no or insufficient regard to the appellant's policies as they bore on the matter in question.
As to the proposition that the Commissioner failed to apply orthodox industrial jurisprudence in that he conflated the charges of misconduct, we do not agree.
That submission misconceives, with respect, the Commissioner's obligations pursuant to orthodox jurisprudence in appeals of this kind. The Commissioner was not obliged to undertake an analysis of each of the charges of misconduct as they were drawn up, or even the findings in relation to the misconduct as they were relied upon to effect the dismissal. Charges of misconduct can be, and very often are, repetitious, overlapping and vague, and the Commissioner was not undertaking an exercise in administrative review. What the Commissioner was rather required to do was analyse each of the incidents of misconduct upon which the decision to dismiss was based, and form a view about the severity of the misconduct in each of those incidents. As we say above, we are satisfied that he did so having regard to the appellant's policies.
That was an inquiry directly relevant to the analysis the Commissioner was obliged to carry out, under the tripartite test, of whether the dismissal was harsh. The Commissioner was clearly mindful of the terms of the allegations put to the respondent by the appellant and set them out at paragraph 47 of the impugned decision.
There were three separate incidents of misconduct on which the appellant relied to dismiss the respondent. The Commissioner identified and described them in detail in paragraphs 24-41 of the impugned decision. Of course, to identify and describe an incident of misconduct on the context of the analysis of a s.84 application is not itself sufficient. The Commissioner then went on, at paragraphs 79-92, to analyse each of the three incidents discretely, and to form and express a specific view about the level of misconduct involved in each of the three discrete incidents. We observe that, in our view, on the evidence before him, the Commissioner was entitled to arrive at the findings to which he came.
Having referred to relevant authority, the Commissioner went on to set out at paragraph 94 a range of specifically-identified mitigating factors.
The Commissioner proceeded to carry out precisely the exercise that orthodox industrial jurisprudence requires of a decisionmaker in an application of this nature pursuant to s.84 of the Act. He weighed the seriousness of the misconduct he had already identified and evaluated it against the mitigating factors.
On the basis of that analysis, it was in our view clearly open to the Commissioner to come to the view, in the face of the mitigating circumstances, that dismissal in this particular case for the particular misconduct was harsh. There was before the Commissioner substantial evidence that permitted him to come to that view. That evidence included the respondent's employment history and also included medical evidence from Dr Westmore, Dr Chandrasekara and Dr Chan, in particular, Dr Chan's evidence as to the likely link between the respondent's depressive symptoms and poor impulsive control and the assaults. That latter evidence, relied on by the Commissioner below, was evidence of a kind which, as the Full Bench held in Corrective Services NSW v Danwer [2013] NSWIRComm 61, it is proper to weigh in considering the tripartite test.
So far as leave to appeal is sought on the basis that the Commissioner misdirected himself on the test to apply in determining whether the dismissal was 'harsh', we do not see that he did so misdirect himself. The Commissioner referred to and applied the precepts set out in the decision of the Full Bench in Department of Health v Perihan Kaplan [2010] NSWIRComm 65 and the long-standing and often-cited authorities to which that case refers. It was appropriate that he did so.
To say, as the appellant does in seeking leave to appeal, that the Commissioner gave no, or insufficient, weight to a number of public interest factors relied upon by the appellant to dismiss is to say no more than that the appellant disagrees with the weight afforded to those matters by the Commissioner. The Commissioner was clearly mindful of the terms of the allegations put to the respondent by the appellant and set them out at paragraph 47 of the impugned decision. As we point out above, drawing on Antonakopoulos, even were we also to have a different view of the weight properly to be afforded to those factors, that would not be a ground for a grant of leave if the decision to which the Commissioner came was reasonably open to him, which we consider it was.
In sum, it is apparent that in making the findings he did, the Commissioner applied the tests established by the Act and precedent decisions binding on him.
In submissions in the interlocutory proceedings at which the appellant sought leave to amend, it was expressly stated that the appellant did not challenge the Commissioner's exercise of discretion in providing the remedy of reinstatement. For avoidance of any doubt, we repeat the dictum in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services which we set out above, that in the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion available to him. Here, no failure properly to exercise that discretion, given the findings that the Commissioner made, can be shown.
Lastly, the amended application introduced a ground that the Commissioner had not provided reasons for his decision. This ground was not developed in oral or written submissions as a basis for leave to appeal. In our view it is not sustainable and provides no basis for consideration of a grant of leave.
[5]
Conclusion on leave
We have concluded that no appellate intervention is warranted as, primarily, no error has been disclosed in the decision at first instance on the bases argued by the appellant in its amended application. There are no matters of principle at large in the appeal that would justify an appeal being heard aside from such error. That being so, there is no proper basis on which, in the public interest, leave should be granted, nor is there any other basis warranting the grant of leave. We are, therefore, not disposed to grant leave to appeal.
[6]
Disposition of the appeal
The Orders we make are as follows:
Leave to appeal is refused.
The stay granted by the Commission on 9 November 2016 is dissolved.
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Decision last updated: 28 February 2017