Industrial Relations Secretary v Wattie

Solicitors: Crown Solicitor's Office (Plaintiff) McNally Jones Staff Lawyers (Defendant) File Number(s): 2017/148155

Introduction

1. On 13 May 2016 the employment of Jason Wattie (the defendant) was terminated for misconduct pursuant to s 69 of the Government Sector Employment Act 2013 (NSW) (the GSE Act). There is no challenge to the validity of the termination. The defendant commenced unfair dismissal proceedings pursuant to s 84 of the Industrial Relations Act 1996 (NSW) (the IR Act) in the Industrial Relations Commission of New South Wales (IRC). On 11 October 2016 Commissioner Murphy (the Commissioner) determined that the termination was harsh, though neither unjust nor unreasonable, and ordered that the defendant be reinstated without back pay: Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (CSNSW) [2016] NSWIRComm 1036.
2. The defendant's nominal employer, the Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (the plaintiff), sought leave from the Full Bench of the IRC to appeal against the reinstatement order. The Full Bench refused leave on 28 February 2017.
3. By summons filed on 17 May 2017 the plaintiff claims relief in respect of the Commissioner's decision to reinstate the defendant's employment; and the Full Bench's decision to refuse leave to appeal. An extension of time is required to challenge the Commissioner's decision. For reasons given below I am persuaded that it is appropriate to extend time.
4. By reason of s 179(1) of the IR Act, this Court's jurisdiction under s 69 of the Supreme Court Act 1970 (NSW) is limited to cases where jurisdictional error in a decision of the IRC has been established: Kirk v Industrial Relations Court of NSW (2010) 239 CLR 531; [2010] HCA 1 at [55] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
5. The sole ground on which jurisdictional error is alleged is that the Commissioner was obliged, and failed, to take into account the statutory framework and instruments germane to the defendant's employment in his determination that the defendant's dismissal was, though neither unreasonable nor unjust, harsh.
6. Because of the limited nature of this Court's jurisdiction, the facts relevant to the determination of this issue can be summarised briefly.

The plaintiff's employment and termination

1. The defendant had been employed within Corrective Services NSW (CSNSW) as a correctional officer since 1994. He had not been the subject of disciplinary investigation or action prior to the matters resulting in his dismissal. He was dismissed as a result of three assaults he committed against three inmates on 13 September 2014, 19 December 2014 and 29 December 2014.
2. On 7 August 2015 the defendant pleaded guilty to two counts of common assault and one count of assault occasioning actual bodily harm arising from the three incidents referred to above. The Local Court did not record a conviction on the common assault charges, but required the defendant to enter into good behaviour bonds for 12 months pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (s 10 bonds). In respect of the assault occasioning actual bodily harm, the defendant was convicted and required to enter into a good behaviour bond for 12 months pursuant to s 9 of the Crimes (Sentencing Procedure) Act. The defendant appealed to the District Court against the sentence imposed for the assault occasioning actual bodily harm. Garling ADCJ quashed the conviction for that offence and found the offence proven without proceeding to a conviction. He imposed a s 10 bond to be of good behaviour.
3. After the criminal proceedings were finalised, the plaintiff began disciplinary action against the defendant, who was invited to respond to the allegations of misconduct based on the three assaults. The allegations were contained in a letter to the defendant dated 11 September 2015, the following part of which was ultimately reproduced in the Commissioner's reasons at [47] (see below): "The first set of allegations of misconduct is that on 13 September 2014 at the Amber Laurel Correctional Centre, NSW, you: • Struck [an inmate] in the head/upper body multiple times without reasonable cause; • Used force against [the inmate] that was unnecessary, unreasonable and not required to manage any risk presented by [the inmate], contrary to the Using Force on Inmates policy of CSNSW Custodial Policy and Procedures; and • Failed to accurately report your use of force in writing, such that your report was false or misleading in a material particular, contrary to the requirements of the Using Force on Inmates policy of CSNSW Custodial Policy and Procedures, cl. 251(2) of the Crimes (Administration of Sentences) Regulation 2014 and the CSNSW Guide to Conduct and Ethics 2010. The second set of allegations of misconduct is that on 19 December 2014 at the Amber Laurel Correctional Centre, NSW, you: • Struck [an inmate] to the side of the head without reasonable cause; • Used force against [the inmate] that was unnecessary, unreasonable and not required to manage any risk presented by [the inmate], contrary to the Using Force on Inmates policy of CSNSW Custodial Policy and Procedures; and • Failed to report your use of force in writing, contrary to the requirements of the Using Force on Inmates policy of CSNSW Custodial Policy and Procedures. The third set of allegations of misconduct is that on 29 December 2014 at the Amber Laurel Correctional Centre, you: • Struck [an inmate] in the head/upper body multiple times without reasonable cause; • Used force against [the inmate] that was unnecessary, unreasonable and not required to manage any risk presented by [the inmate], contrary to the Using Force on Inmates policy of CSNSW Custodial Policy and Procedures; and [Not pressed]." [Emphasis added in bold to indicate the regulatory (and policy) context relied upon by the plaintiff.]
4. At the conclusion of the disciplinary processes (which included oral and written representations from the defendant), the defendant was informed by letter to his solicitors dated 5 May 2016 that, on the basis of the following misconduct, his employment would be terminated if he did not tender his resignation within 7 days: "- On 13 September 2014 he struck an inmate (Inmate H) to the head/upper body without reasonable cause, and used force against him that was not warranted. He also failed to accurately report his use of force against the inmate, such that his report was false or misleading in a material particular; - On 19 December 2014 he struck an inmate (Inmate B) to the side of the head without reasonable cause, using force against him that was not warranted and did not report his use of force against the inmate; and - On 29 December 2014 he struck an inmate (Inmate C) multiple times to the head/upper body without reasonable cause and using force against him that was not warranted."
5. Assistant Commissioner Wilson (who made the decision to dismiss the defendant) gave the following reasons for his decision (which the IRC reproduced in [57] of its reasons (see below)): "- The misconduct was very serious and involved more than one instance of an inmate being subject to undue use of force; - SCO [Senior Correctional Officer] Wattie acknowledged that his conduct was wring [scil., wrong] however, I am not satisfied he appreciated the gravity of his misconduct; - These matters have brought discredit upon SCO Wattie and had the effect of undermining the integrity and reputation of the government sector; - Subjecting an inmate to undue force is incompatible with the duties and responsibilities of a Correctional Officer, being - - A betrayal by SCO Wattie of his employer's trust and confidence; and - Was intolerable conduct in the correctional environment, where he was required to exemplify good conduct; - I cannot be satisfied that there will not be a similar occurrence of misconduct involving SCO Wattie, particularly when he could not even recall one of the instances when he used force, without reasonable cause, against an inmate [Inmate B on 19 December 2014]; and - It would undermine public confidence in the government sector for a person who has acted so contrary to their responsibilities as a Correctional Officer, to remain employed as a Correctional Officer or in the NSW Public Service generally."
6. The defendant did not tender his resignation, as a consequence of which he was informed by letter dated 13 May 2016 that his employment was terminated.

The proceedings in the IRC

1. The proceedings in the IRC took place on 29 and 30 August 2016. As there is an issue about whether the plaintiff sufficiently raised the matter which he now contends to be a mandatory relevant consideration it is necessary to examine what was put by the plaintiff to the Commissioner. Ms Graycar, who appeared for the plaintiff in the IRC, relied on oral and written submissions. In the written submissions made on behalf of the plaintiff, it was submitted: "However, notwithstanding those matters [subjective matters concerning the defendant], the Respondent submits that the decision to terminate the Applicant's employment (after he rejected an opportunity to resign) ought to be affirmed for reasons elaborated upon below. In summary, those reasons, upon which the decision maker relied (see Annexure 25, page 2), include the following: 15.1. the seriousness of the misconduct, and the fact that it involved more than one instance of misconduct; 15.2. the incompatibility of the misconduct with the duties and responsibilities of the Applicant as a correctional officer; 15.3. the Applicant's betrayal of his employer's trust; 15.4. the fact that the conduct has brought discredit on the Applicant and undermined the integrity and reputation of the government sector; 15.5. the fact that the misconduct was intolerable conduct in the correctional environment; 15.6. the concern that that the employer could not be satisfied that there would not be a recurrence of similar conduct in the future, particularly as the Applicant could not recall one of the instances of serious misconduct; and 15.7. the fact that it would undermine public confidence for a person who had acted so contrary to their responsibilities as a correctional officer to remain employed either as a correctional officer or in the NSW Public Service generally."
2. In oral submissions, Ms Graycar said: "So, you'll see that that refers to the seriousness of the misconduct, and a critical factor here, and this will emerge from my review of some different cases from the one that my friend referred to, is the fact that it involved more than one instance of misconduct, the incompatibility of the misconduct with the duties and responsibilities of the applicant as a correctional officer, the applicant's betrayal of his employer's trust, and conduct that has brought discredit on the applicant and undermined the integrity and reputation of the government sector, and that it's intolerable conduct in a correctional environment, and concern that the employer could not be satisfied there wouldn't be a recurrence, particularly as the applicant's evidence is he can't recall one of the instances, and finally the Commissioner stated that it would undermine public confidence for a person who had acted so contrary to their responsibilities as a correctional officer to remain employed, either as a correctional officer or in public employment generally."
3. Ms Graycar referred to the governing legislative scheme and confirmed that the defendant was dismissed for misconduct, as opposed to having been convicted of a criminal offence, since the legislation at that time required a conviction. She referred to a subsequent amendment (which came into force on 1 July 2016, which was after the relevant time) which provided for a finding of guilt (rather than a conviction) as being a basis for dismissal. She also referred to the "broader principles" referred to in ss 6 and 7 of the GSE Act and the relevant provisions of the Crimes (Sentencing Procedure) Act, ss 9 and 10. When referring to salient authorities, Ms Graycar said: "And they [the Full Bench of the IRC] also referred to the code of conduct that applies to corrections, and of course applies to Mr Wattie, by which he was required to demonstrate exemplary conduct irrespective of whether on or off duty."
4. Ms Graycar submitted: "Now the respondent submits it would undermine public confidence for a person who had acted so contrary to their responsibilities as a correctional officer to remain employed either as a correctional officer or in the public service generally."

The decision of the IRC

1. On 11 October 2016 the Commissioner, after having given reasons for his decision, made the following orders: "(1) Jason Wattie is to be reinstated to the position of Senior Correctional Officer which he held with Corrective Services NSW immediately before his dismissal on 13 May 2016 on the same terms and conditions as applied to his position at that time. (2) Order (1) is to take effect on and from Tuesday 18 October 2016. (3) No order is made for payment to Mr Wattie for the period between the time of his dismissal and 18 October 2016, which period is not to count as service for any purpose. (4) Despite order (3) Mr Wattie's service is to be taken as having not been broken by virtue of his dismissal and the period between then and his reinstatement pursuant to orders (1) and (2)."
2. Under the heading "Disciplinary proceedings", the Commissioner included, at [47] of his reasons, the extract from the letter dated 11 September 2015 set out above. At [57] of the reasons, the Commissioner extracted the reasons given for the decision to terminate the defendant's employment which are set out above (from the letter of 5 May 2016).
3. The Commissioner said, at [78]: "On their face, the actions of Mr Wattie in each of the three incidents relied upon constitute misconduct so as to render his dismissal neither unreasonable nor unjust. Assaults on inmates in correctional centres by correctional officers cannot be condoned nor tolerated, even in cases where there is significant provocation."
4. The Commissioner also made the following findings: 1. The first and second incidents were not, taken in isolation, sufficient to justify the dismissal, but the third incident, when considered together with the misconduct involved in the other incidents, was such as to render the dismissal of the defendant neither unjust nor unreasonable (at [83], [88] and [92]). 2. There were significant mitigating facts which were required to be weighed against the seriousness of the misconduct, including the defendant's 22 years of unblemished and decorated service, the negative impact of dismissal on the defendant, the significant level of provocation involved in two of the incidents, the defendant's acceptance of responsibility, his mental state prior to and at the time of the three incidents, the medical evidence as to the likely link between his depressive symptoms and the assaults, his genuine contrition and determination to improve his mental health and the positive prognosis in the medical evidence that the defendant would not pose any significant risk of reoffending (at [94]). 3. Weighing all the mitigating factors against the seriousness of the misconduct, the defendant's dismissal was, in all the circumstances, harsh (at [97]). 4. The expert medical evidence supported a finding that the defendant would not pose any significant risk of reoffending and that reinstatement was not impracticable (at [99]-[100]).
5. The Commissioner said at [101]: "However, given that the dismissal of Mr Wattie was based on misconduct committed by him which, despite his mental condition at the time, cannot be excused, I decline to order that Mr Wattie be paid any back pay for the period from the time of his dismissal until the date of effect of the order for reinstatement. These proceedings should serve as a very clear warning to Mr Wattie that any future use of force by him, which is outside the relevant CSNSW policies, will almost certainly result in his dismissal. If this were to occur, it is difficult to imagine any circumstances which would warrant the intervention of the Commission a second time." [Emphasis added.]

The application for leave to appeal to the Full Bench

1. The plaintiff sought to appeal to the Full Bench of the IRC pursuant to s 187 of the IR Act. Appeals to the Full Bench require the grant of leave: s 188 of the IR Act. The nature of the appeal was specified in s 191 of the IR Act, which provided: "191 Nature of appeal (1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against. (2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against. (3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received."
2. By application for leave to appeal filed in the IRC on 28 October 2016 the plaintiff identified the questions raised by the appeal as including the following: "Whether, in finding that the dismissal of Mr Wattie was harsh, and in ordering Mr Wattie's reinstatement, the Commission erred by failing to have regard to relevant considerations, including failing to have regard to the statutory context (see the Government Sector Employment Act (GSE Act) that governed Mr Wattie's employment."
3. The plaintiff identified reasons why leave should be granted, which included the following: "1. This case concerns public employment governed by a statutory scheme (the GSE Act and GSE Regulation) and involves conduct in a correctional institution where inmates are in a vulnerable position and where the NSW Government employer owes them a duty of care not to expose them to harm, such as the risk of assault; 2. There is a body of analogous case law, involving applications by correctional officers who had committed assaults against inmates which was not applied by the Commission, and with which the Commission's decision is inconsistent. Addressing this inconsistency at an appellate level is in the public interest. 3. The reasons of the primary decision maker, whose decision was the subject of Mr Wattie's unfair dismissal proceedings, raised a number of public interest factors that were not afforded sufficient weight (but ought to have been) by the Commission in determining whether Mr Wattie's dismissal was harsh, and whether his reinstatement would not be impracticable. These factors included: (a) the incompatibility of the (admitted and proven) misconduct with the duties and responsibilities of Mr Wattie as a correctional officer; (b) Mr Wattie's betrayal of his employer's trust; (c) the fact that Mr Wattie's conduct undermined the integrity and reputation of the government sector; (d) the fact that Mr Wattie's misconduct was intolerable conduct in the correctional environment; and (e) the fact that it would undermine public confidence for a person who had acted so contrary to their responsibilities as a Correctional Officer to remain employed in as a correctional officer or in the NSW Public Service generally."
4. The plaintiff included in the proposed grounds of appeal (if leave were granted): "1. The Commission erred in that, despite finding that the assaults committed by Mr Wattie constituted misconduct (at [78], [83], [88], [92]) and that "[a]ssaults on inmates in correctional centres by correctional officers cannot be condoned or tolerated, even in cases where there is significant provocation" (at [78]), the Commission found that the dismissal of Mr Wattie was harsh (at [97]). 2. The Commission erred in finding that the reinstatement of Mr Wattie would not be impracticable (at [98] - [100]), [103(1)])."
5. In written submissions provided to the Full Bench, the plaintiff submitted that the Commissioner had "failed in his reasons to indicate that he had given any consideration to such matters as the following". The matters referred to included: Part 2 of the GSE Act; cl 24 of the Crown Employees (Correctional Officers, Department of Attorney General and Justice - Corrective Services) Award 2012, which deals with professional conduct (the award); the requirements of the CSNSW Operations Procedures Manual, including Section 13.7, "Using Force on Inmates Policy"; the express obligation on correctional officers to report in writing the use of force on inmates "no matter how minor"; and cl 131 of the Crimes (Administration of Sentences) Regulation 2014, which prohibits the use of force that is more than is reasonably necessary.
6. The plaintiff relied in written submissions to the Full Bench on what was said in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112; (2014) 242 IR 318 (the PSA Case) at [59] (Basten JA, Ward JA and Bergin CJ in Eq agreeing) to support the submission that the Commissioner ought be taken to have failed to address the regulatory context because it was not apparent from his reasons that he had done so: "As further stated by Brennan J in O'Brien at 446, echoing the reasoning of Dixon J in Avon Downs Pty Ltd v FCT [1949] HCA 26 ; 78 CLR 353 at 360: If a failure to give adequate reasons for making an administrative decision warrants an inference that the tribunal has failed in some respect to exercise its powers according to law (as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts), the court may act upon the inference and set the decision aside. In such a case, the exercise of the statutory power to make a decision is held invalid not because of a failure to state the reasons for making the decision, but because of a failure to make the decision according to law …."
7. In the hearing before the Full Bench of the Commission, Mr Benson, who appeared for the plaintiff, emphasised that the Commissioner could not perform the task he was required to perform without assessing the seriousness of the defendant's misconduct in the regulatory context.
8. For the reasons given above, I am satisfied that the plaintiff sufficiently raised before the Commissioner and the Full Bench the matters presently relied upon.
9. It was not disputed that it would have been within the power of the Full Bench of the IRC to grant leave to the plaintiff to appeal against the Commissioner's decision.

The decision of the Full Bench of the IRC

1. On 28 February 2017 the Full Bench of the IRC refused leave to the plaintiff to appeal against the Commissioner's decision: Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007. In its reasons the Full Bench said, of present relevance: "[19] 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. [20] 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."

Whether the decision of the Full Bench must be set aside before the Commissioner's decision can be impugned

1. The first question is whether, in order for this Court to have jurisdiction to grant relief, the plaintiff must establish jurisdictional error in the Full Bench's decision to refuse leave or whether it is sufficient for the plaintiff to establish that the Commissioner made a jurisdictional error in making his decision.
2. The starting point is that, where a party seeks to challenge a decision, it must challenge the operative decision. Thus, if a party has appealed against a decision, generally, the party will not be permitted to seek relief in the nature of prerogative relief against the original decision, since it is the decision on appeal that is operative: The Queen v Marks; ex parte Australian Building Construction Employees Builders' Labourers' Federation (1981) 147 CLR 471 at 476; [1981] HCA 33. In Kirk v Industrial Relations Court of NSW, the High Court quashed the decision of the Industrial Court and the decision of the Full Bench dismissing the appeal from the Industrial Court. I do not discern any inconsistency between the matters raised by the plaintiff in the Full Bench and the matters raised in this Court; see the consideration of relevant authorities in Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 at [82]-[120] (Sackville AJA, Leeming JA and Adamson J agreeing). One of the bases for the application for leave was that the Commissioner had committed jurisdictional error.
3. The present case is to be distinguished from the PSA Case in which the Full Bench identified error in the Commissioner's decision but itself committed jurisdictional error by failing to undertake the "essential task" of identifying the element of misconduct, assess its seriousness and weigh that against the consequences of the proposed dismissal: [71] (Basten JA). The Court in that case held at [72]: "In these circumstances, the applicants have made good their challenge to the decision of the Full Bench which, accordingly, must be set aside. Because that step is not taken on the basis that the Full Bench erred in intervening, but on the basis that it erred in its redetermination of the matter, the matter should be remitted to the Commission for reconsideration according to law."
4. The present case is also, in my view, to be distinguished from Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 (CEPU v Abigroup). In that case, unlike in the present, the Full Bench of the Fair Work Commission had granted leave to appeal but dismissed the appeal. The Full Federal Court, by majority (Katzmann and Rangiah JJ) said at [176] that it would refuse relief against the decision at first instance unless it concluded that the decision of the Full Bench of the Fair Work Commission involved jurisdictional error since "it would be futile to grant relief in respect of a decision at first instance when the appellate decision stands and is conclusive and operative". As their Honours were satisfied that the Full Bench of the Fair Work Commission had committed jurisdictional error, the decision of the Full Bench was set aside, as were aspects of the first instance decision.
5. In Coal & Allied v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 (a decision on which the defendant also relied), it was not argued that the decision at first instance (by Boulton J) was void for jurisdictional error. Accordingly, the question whether the Full Federal Court was correct to set aside the decision of the Full Bench of the Commission depended on the establishment of jurisdictional error at the level of the Full Bench of the commission. As the finding of error by the Full Bench was within its jurisdiction, the decision of the Full Bench could not be set aside and the appeal against the decision of the Full Federal Court was allowed.
6. The effect of The Queen v Marks and CEPU v Abigroup was considered, again in the federal context, in Daffallah v Fair Work Commission (2014) 225 FCR 559; [2014] FCA 328. Mortimer J said at [56]: "In my opinion, as a matter of discretion and applying the approach set out in Abigroup [2013] FCAFC 148 and R v Marks 147 CLR 471, orders made in exercise of the court's jurisdiction under s 39B of the Judiciary Act (or ss 562 and 563 of the FW Act read with s 545) should not issue against a first-instance decision of the Commission, where leave to appeal had been sought and refused after full argument, and the refusal of leave is not affected by jurisdictional error, unless there are compelling reasons to permit an applicant in effect to circumvent the statutory appeal provisions and the limits Parliament has imposed by them. There are no such compelling reasons in the present case. Accordingly, there is no occasion to consider separately whether the Commissioner's decision is affected by jurisdictional error."
7. Having regard to the nature of the error alleged in the present case, I am satisfied that, if the plaintiff establishes jurisdictional error in the Commissioner's decision, he will also have made out jurisdictional error in the Full Bench's refusal of leave. In other words, I consider that the Full Bench would have had no jurisdiction to refuse leave to appeal if jurisdictional error in the Commissioner's decision of the nature alleged was established in the present case. If jurisdictional error is established, both decisions must be set aside and the matter remitted to a single IRC Commissioner to be determined according to law.

Whether the Commissioner failed to take into account a mandatory relevant consideration

1. Accordingly, the question is whether the plaintiff has established jurisdictional error in the Commissioner's decision. Before turning to the characterisation of any error as one going to jurisdiction, it is necessary to determine whether the plaintiff has established an error of law. The failure to take into account a mandatory relevant consideration is an error of law: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason J); [1986] HCA 40. There is no suggestion that there was any express statutory requirement that the Commissioner consider the relevant statutory context before deciding whether the defendant's dismissal was harsh, unjust or unreasonable. If there was any such requirement, it must arise by necessary implication having regard to the regulatory and policy context: Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 40. This requires consideration of the applicable legislation, including subordinate legislation, and policy documents.

The jurisdiction of the IRC

1. Section 84 of the IR Act relevantly provided: "84 Application for remedy by dismissed employee (1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part. . . ."
2. Section 88 of the IR Act provided: "88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant."
3. Section 89 of the IR Act provided in part: "89 Orders for reinstatement, re-employment, remuneration, compensation (1) Reinstatement The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. . . ."

Provisions and policies referable to correctional officers

1. Part 2 of the GSE Act relevantly provided: "Part 2 Ethical framework for the government sector 6 Objective of Part This Part: (a) recognises the role of the government sector in preserving the public interest, defending public value and adding professional quality and value to the commitments of the Government of the day, and (b) establishes an ethical framework for a merit-based, apolitical and professional government sector that implements the decisions of the Government of the day.
2. Section 7, in Part 2, lists certain "Government sector core values", which include: (under the heading "Integrity") "(d) Place the public interest over personal interest"; (under the heading "Trust") "(c) Uphold the law, institutions of government . . ."
3. Section 8, which is also in Part 2, provided: "8 General provisions (1) The Public Service Commissioner has the function of promoting and maintaining the government sector core values. (2) There is no hierarchy among the core values and each is of equal importance. (3) Nothing in this Part gives rise to, or can be taken into account in, any civil cause of action."
4. Section 69 of the GSE Act relevantly provided: "69 Misconduct - Public Service and other prescribed government sector employees (1) In this section: government sector agency means: (a) a Public Service agency, and (b) any other government sector agency prescribed by the regulations for the purposes of this section. misconduct extends to the following: (a) a contravention of this Act or an instrument made under this Act, . . . The subject matter of any misconduct by an employee may relate to an incident or conduct that happened while the employee was not on duty or before his or her employment. serious offence means an offence punishable by imprisonment for 12 months or more. (2) The head of a government sector agency is responsible for dealing with any misconduct by employees of the agency (or any conviction for a serious offence by any such employee) in accordance with this section. (3) The government sector employment rules may deal with the following: (a) misconduct by employees of government sector agencies or the conviction of any such employees for a serious offence, (b) the procedural requirements for dealing with allegations of misconduct by employees of government sector agencies (consistently with procedural fairness). (4) If, in accordance with those rules, there is a finding of misconduct by an employee of a government sector agency or any such employee is found to have been convicted of a serious offence, the head of the agency may take any of the following actions: (a) terminate the employment of the employee (without giving the employee an opportunity to resign), (b) terminate the employment of the employee (after giving the employee an opportunity to resign), (c) impose a fine on the employee (which may be deducted from the remuneration payable to the employee), (d) reduce the remuneration payable to the employee, (e) reduce the classification or grade of the employee, (f) assign the employee to a different role, (g) caution or reprimand the employee. (5) Proceedings and actions under this section may be taken or continued despite the employee resigning or otherwise ceasing to be an employee of the agency concerned. Any such action may be expressed to be a termination of employment even if the person has ceased to be an employee. (6) This section does not apply to any employees of a government sector agency who are excluded by the regulations."
5. Clause 131 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) relevantly provided (at the time of the assaults committed by the defendant on inmates): "131 Use of force in dealing with inmates (1) In dealing with an inmate, a correctional officer may use no more force than is reasonably necessary in the circumstances, and the infliction of injury on the inmate is to be avoided if at all possible. (2) The nature and extent of the force that may be used in relation to an inmate are to be dictated by circumstances, but must not exceed the force that is necessary for control and protection, having due regard to the personal safety of correctional officers and others. (3) If an inmate is satisfactorily restrained, the only force that may be used against the inmate is the force that is necessary to maintain that restraint. (4) Subject to subclauses (1)-(3), a correctional officer may have recourse to force for the following purposes: (a) to search, if necessary, an inmate or to seize a dangerous or harmful article, (b) to prevent the escape of an inmate, (c) to prevent an unlawful attempt to enter a correctional centre by force or to free an inmate, (d) to defend himself or herself if attacked or threatened with attack, but only if the officer cannot otherwise protect himself or herself from harm, (e) to protect other persons (including correctional officers, departmental officers, inmates and members of the public) from attack or harm, but only if there are no other immediate or apparent means available for their protection, (f) to avoid an imminent attack on the correctional officer or some other person, but only if there is a reasonable apprehension of an imminent attack, (g) to prevent an inmate from injuring himself or herself, (h) to ensure compliance with a proper order, or maintenance of discipline, but only if an inmate is failing to co-operate with a lawful correctional centre requirement in a way that cannot otherwise be adequately controlled, (i) to move inmates who decline or refuse to move from one location to another in accordance with a lawful order, (j) to achieve the control of inmates acting defiantly, (k) to avoid imminent violent or destructive behaviour by inmates, (l) to restrain violence directed towards the correctional officer or other persons by an uncontrollable or disturbed inmate, (m) to prevent or quell a riot or other disturbance, (n) to deal with any other situation that has a degree of seriousness comparable to that of the situations referred to in paragraphs (a)-(m). (5) Subclause (4) does not limit the operation of any law with respect to the force that may be used to effect an arrest."
6. Clause 251 of the Crimes (Administration of Sentences) Regulation provided: "251 Honesty (1) A correctional officer, departmental officer, medical officer or nursing officer must at all times be honest and truthful. (2) A correctional officer, departmental officer, medical officer or nursing officer: (a) must not make any statement that the officer knows, or ought reasonably to know, is false or misleading in a material particular, and (b) must not destroy or mutilate, or alter or erase any entry in, an official document."
7. The Operations Procedures Manual for CSNSW contained, in Section 13.7, procedures for "Using Force on Inmates". It referred expressly to cl 131 of the Crimes (Administration of Sentences) Regulation. It relevantly provided as follows: "13.7.2 POLICY Clause 131 of the Crimes (Administration of Sentences) Regulation 2014 sets out the situations when you can use force. You must use alternative methods to resolve problematic behaviour whenever possible. A peaceful, injury-free solution is the first objective. . . . When it is used, the force you apply must be reasonable and appropriate to the circumstances. Once an inmate has been satisfactorily restrained, you must not apply additional force. If it's no longer necessary to restrain the inmate, you must stop applying force and you must remove restraints. Every time you use force, you must justify its use, as well as the type of force you applied and the duration you applied it. . . . The application of force must be video recorded. If the use of force is not video recorded, your report must explain why. Your explanation is unacceptable if it merely states that time did not allow a camera to be brought to the scene. Your explanation must detail the circumstances that precluded a camera being brought to the scene. . . . No matter how much or little force you used, you must report it in writing to the General Manager (GM). In addition, you must complete and submit an Incident/Witness Report Coversheet (see OPM 13 Annexures - Use of Force Tool Kit) . . . You must not show or discuss your report or your evidence with anyone else. The content of incident reports is governed by OPM 13.1 Serious Incident Reporting. Note: Staff are not to review any video footage of the incident prior to submitting an incident or witness report (see OPM 13.9 Recording and Managing Video Evidence)."
8. Clause 24 of the award required officers to "perform their duties diligently, impartially and conscientiously to the best of their ability by complying with the CSNSW Code of Conduct in the performance of their duties" and to "be professional in their conduct with the public, other staff and inmates". The values expressed in the Guide to Conduct and Ethics, 2010 edition, (which was accepted to be the relevant Code of Conduct referred to in the award) included "safety, welfare and positive development of offenders" and "secure and humane management of offenders". Clause 2.8 of the Code of Conduct, entitled "Professional Conduct Towards Offenders", said: "The treatment of offenders should encourage their self-respect and a sense of personal responsibility."

Whether the legislative context is a mandatory relevant consideration

1. As referred to above, s 88 of the IR Act provides that certain matters "may" be taken into account by the IRC. On the face of it, none of these matters constitute mandatory relevant considerations by reason of the word "may". However, this is not the end of the inquiry since the obligation to take certain matters into account may arise by necessary implication: Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 40.
2. The relevant assessment required to be made by the IRC was whether the dismissal was "harsh, unreasonable or unjust". There is no challenge to the finding that the dismissal was neither unreasonable nor unjust. The challenge was to the determination that it was "harsh".
3. In Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465; [1995] HCA 24 McHugh and Gummow JJ (in a minority judgment) said: "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."
4. This passage was followed and applied by the Court of Appeal in the PSA Case, where Basten JA said at [70] that it was necessary to consider separately the possibility that the dismissal might be harsh although not unjust or unreasonable. In the PSA Case the Court of Appeal held that the Full Bench had committed jurisdictional error by failing to undertake the "essential task" of identifying the relevant misconduct, assessing its seriousness and weighing that against the consequences of the proposed dismissal. Basten JA explained the error (and why it was jurisdictional) in the following passages: "[70] Even if it might properly be inferred from the somewhat scant references in the reasons that Walton J identified the serious misconduct in the way suggested above, that was only part of the exercise required in determining the availability of relief under s 89(7). It was also necessary to weigh in the balance any 'mitigating circumstances': Electricity Commission of NSW (Pacific Power) v Krump [1993] NSWIRComm 30 (Fisher P, Hungerford J and Connor CC). The length of prior employment, the employment record and favourable character considerations may all be relevant to determining whether relief should be granted. Further, in reaching a final determination, it was necessary to consider separately the possibility that dismissal might be "harsh", although not unjust or unreasonable: Byrne v Australian Airlines Ltd [1995] HCA 24; 185 CLR 410 at 465 (McHugh and Gummow JJ). Noting that in many cases the concepts will overlap, McHugh and Gummow JJ also pointed out that termination of employment '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.' [71] Despite the fact that the Full Bench intervened because it determined that the single member had not addressed the correct issue, and despite the fact that it had, in broad terms, identified the questions to be determined, there must have been a real issue as to whether, given Mr Woelfl's long and favourable record, the misconduct in the present case was sufficient to warrant termination. The absence of any reference in the reasons to the long and favourable record of service suggests that the necessary weighing exercise was not undertaken. . . . What is clear is the need to identify the element of misconduct and assess its seriousness and weigh that against the consequence of proposed dismissal. The absence of any reference to that essential exercise indicates that it was probably not undertaken."
5. As can be seen from the passages set out above from the PSA Case, the Full Bench was found to have committed a jurisdictional error by failing to identify the misconduct, assess its seriousness and weigh it against the consequences of the proposed dismissal for the employee. In my view, the error made by the Commissioner in the present case was of the same character as the one found to have been made by the Full Bench of the IRC in the PSA Case.
6. While there may be other occupations to which the regulatory context is largely irrelevant, the same cannot be said for the employment of correctional officers. The State is responsible for every inmate, having either, through its enforcement arm (the police force), arrested and taken an accused person into custody, or through its judicial arm, imposed a sentence, or refused bail. Correctional officers are centrally engaged in the obligations of the State to safeguard all persons who are in custody, either on remand following refusal of bail, or not having applied for bail, awaiting a criminal hearing, or who are serving a custodial sentence imposed by a court. When a correctional officer assaults a prisoner, he or she is doing so in the exercise of the actual or ostensible authority conferred by the State on correctional officers who are its agents, even where, as here, the assault falls outside the warranty of authority because it is in breach of the Using Force on Inmates policy.
7. Clause 131 of the Crimes (Administration of Sentences) Regulation is plainly intended to ensure that correctional officers do not use force against inmates except in certain defined circumstances. Section 13.7 of the CSNSW Operations Procedures Manual, Using Force on Inmates Policy, is designed to implement cl 131. As a consequence of the relationship between the State and those it detains in custody, the State owes a duty to exercise reasonable care for the safety of inmates during the period of their detention: Howard v Jarvis (1958) 98 CLR 177 at 183; [1958] HCA 19. Where a prison officer has been found guilty of assault under the general law and has thereby breached cl 24 of the award and the Code of Conduct incorporated in it, and cl 131 of the Crimes (Administration of Sentences) Regulation (and the associated policy), the State may, by exposing inmates to the defendant (by permitting him to remain employed as a correctional officer), be putting itself in breach of that duty.
8. The importance of cl 131 of the Crimes (Administration of Sentences) Regulation and the Using Force on Inmates Policy ought to have been apparent to the Commissioner. Clause 131 was included in the tender of a slim bundle of regulatory material. The Using Force on Inmates policy was separately tendered and was specifically referred to in the correspondence between the plaintiff and the defendant that was in evidence, including the letter of 11 September 2015 from the Assistant Commissioner to the defendant in which detailed allegations of misconduct were set out. This letter was extracted in the IRC Commissioner's reasons at [47]. As referred to above, I reject the defendant's submission that the regulatory context was not sufficiently raised by the plaintiff in the IRC.
9. Having regard to the central relevance of the regulatory context to the question whether the dismissal was harsh, it was, in my view, a condition of the valid exercise of the Commissioner's power that he consider that context. Although that requirement was not explicitly stated in the IR Act, it was central to the Commissioner's task of deciding whether dismissal was relevantly harsh and, if so, what remedy would be appropriate. Any purported exercise by the Commissioner of the powers under s 89 of the IR Act in which he did not have regard to the regulatory context could not, in my view, be a bona fide attempt to exercise the power. In the present case, I am persuaded that the task of assessing the seriousness of the misconduct (which formed part of the "essential task" which the Commissioner was obliged to undertake in deciding whether the dismissal was unjust) required the regulatory context to be taken into account since it was only within that context that the seriousness of the defendant's misconduct as a correctional officer could be assessed.
10. As I am satisfied that the Commissioner was obliged to take into account the relevant regulatory context, it is necessary to consider whether he actually did. The weight to be given to mandatory relevant considerations is a matter for the decision-maker, in this case, the Commissioner: Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at [5]-[7] (Gleeson CJ). However, where a decision-maker has failed to give any consideration to such a matter, the decision has not been made in accordance with law.
11. Mr Gibian, who appeared on behalf of the defendant, submitted that, in so far as the regulatory context was raised in the IRC, it was considered by the Commissioner. He argued that the Commissioner addressed the regulatory context by: 1. reproducing the allegations of misconduct (extracted above) made in the letter of 11 September 2015 (at [47] of the reasons); 2. referring to the reasons given by Assistant Commissioner Wilson for dismissing the defendant in his letter of 5 May 2016 (at [57] of his reasons); 3. saying, at [78] of his reasons, "Assaults on inmates in correctional centres by correctional officers cannot be condoned or tolerated, even in cases where there is significant provocation"; and 4. referring to the "relevant CSNSW policies" in [101] of the reasons.
12. Although the Commissioner was not required to address in terms each of the statutory provisions or policy material relevant to the obligations of correctional officers towards inmates which are referred to above, he was required to consider the substance of these matters and demonstrate by his reasons that he had done so. In the context of the present case, he was obliged, when assessing the seriousness of the misconduct, at least to address the express prohibitions on the use of force against inmates (except in specified circumstances which are not said to be relevant here) and the mandatory obligations to report such use of force, however minor. I note that these prohibitions were expressed, not only in cl 131 of the Crimes (Administration of Sentences) Regulation but also in the Using Force on Inmates policy to which several references were made in the letter of 11 September 2015 referred to above. It is not necessary, in these circumstances, to consider whether s 8(3) of the GSE Act deprives the failure to take into account any of the "core values" of legal consequence in a case such as the present.
13. In his reasons, the Commissioner reproduced extracts from the correspondence in which the plaintiff set out the allegations made against the defendant (which contained references to the regulatory context and the Using Force on Inmates policy) and the plaintiff's reasons for dismissing the defendant. However, the Commissioner's reasons do not reveal that he addressed the regulatory context. Consideration of the substance of the regulatory context required consideration of the circumstance that use of force by a correctional officer against an inmate, which amounted to criminal assault on not one but three separate occasions, was antithetical to that context and to the integrity of the criminal justice system. It constituted an abuse of the power of the State by the defendant who, as one of its correctional officers, was acting as its agent. I do not regard the Commissioner's general observation in [78] that assaults on inmates in correctional centres by correctional officers cannot be condoned or tolerated as sufficient to indicate that he gave any consideration to the regulatory context. Indeed, one could substitute almost any job title for "correctional officers" (including bouncers) and any workplace for "correctional centres" (including licensed premises) and any class of victims for "inmates" (including clients) and the sentence would remain true. The reference to the "relevant CSNSW policies" in [101] was insufficient to demonstrate that they had been taken into account.
14. There was no complaint about the reasons of the Commissioner per se. The complaint was about the substance of the Commissioner's reasoning process in finding that the dismissal was harsh and that the defendant ought be reinstated. In my view, the Commissioner's reasons warrant an inference that he failed to take into account the regulatory context since the scant reference to such matters is almost exclusively confined to quotations from the plaintiff's correspondence. The passages in [78] and [101] are too general for an inference to be drawn that the regulatory context was actually considered by the Commissioner.

Whether the error amounts to a jurisdictional error

1. A failure to take into account a mandatory relevant consideration is an error of law. If it is also a jurisdictional error, then this Court has jurisdiction to intervene. If it is an error within jurisdiction, then this Court's jurisdiction is excluded by s 179(1) of the IR Act. While the High Court in Kirk v Industrial Court has cautioned against using the statements in Craig v South Australia (1995) 184 CLR 163 at 179 as "providing a rigid taxonomy of jurisdictional error" ([73]), the oft-cited passage is useful as a list of examples of jurisdictional errors. The High Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) said in Craig v South Australia at 179: "If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
2. It was argued on behalf of the defendant that substantial restraint should be exercised by courts in finding jurisdictional error in this area. Mr Gibian referred to what Buchanan J (Allsop CJ and Siopis J agreeing) said in Toms v Harbour City Ferries Pty Ltd (2015) 229 FCR 537; [2015] FCAFC 35 (which concerned a challenge in the Federal Court to a decision of the Fair Work Commission on the grounds of jurisdictional error) at [42]: "It should be accepted that Parliament intends that examination of the merits of unfair dismissal cases should be the particular province of the FWC [Fair Work Commission], and proceed upon a practical and pragmatic foundation. That examination necessarily extends to the possibility of review of reasons and outcomes on appeal. Those are matters not readily susceptible to narrow challenges on the grounds of 'jurisdictional error'."
3. At [59], Buchanan J described the task of the court in this context: "The task on judicial review is not simply to assess whether an administrative tribunal was right or wrong in its conclusions, or whether it made errors in its analysis. The task is not to correct perceived errors made within jurisdiction. The task is to examine whether the tribunal misconceived its role or otherwise failed to exercise its jurisdiction so that its decision should not be seen as a true exercise of the power committed to it at all."
4. There are significant differences between the federal and New South Wales regimes for unfair dismissal claims. For example, s 387 of the Fair Work Act 2009 (Cth) lists the matters which the Fair Work Commission must take into account, thereby making them mandatory relevant considerations. Despite these differences, I accept that these statements from Toms v Harbour City Ferries Pty Ltd are applicable to the determination whether there has been jurisdictional error by the Commission and the Full Bench.
5. In the present case, the Commissioner ignored relevant material (the regulatory context) and reached a conclusion which was erroneous because it lacked an essential integer: an assessment of the seriousness of the misconduct which required consideration of the regulatory context. I am satisfied that this amounted to a jurisdictional error since it centrally affected the task which the Commissioner was required to undertake in determining the defendant's application under s 84 of the IR Act. In these circumstances the Commissioner's decision ought not be seen as a true exercise of the power to determine whether the dismissal was, relevantly, harsh, and, if so, what relief ought be granted. I have arrived at my conclusion by the application of the principles to which I have referred. However, it is also significant that jurisdictional error was found by the Court of Appeal in the PSA Case, in circumstances which do not appear to me to be materially different from the present case.

Conclusion

1. For the reasons given above, the plaintiff has made good the challenge to the Commissioner's decision and to the decision of the Full Bench to refuse leave to appeal. Both decisions must be set aside. Because the Commissioner's decision was vitiated by jurisdictional error, it is appropriate for the matter to be remitted to the Commission to be determined in accordance with law by a single Commissioner.

Extension of time

1. The plaintiff commenced the proceedings on 17 May 2017, which was more than three months after the decision of the Commissioner. Accordingly, the plaintiff needs an extension of time under the Uniform Civil Procedure Rules (UCPR), r 59.10. The plaintiff explained the reasons for seeking leave to appeal to the Full Bench against the Commissioner's decision rather than challenging it in this Court pursuant to s 69 of the Supreme Court Act. The consequence of this course was that the plaintiff was out of time for challenging the Commissioner's decision by the time the decision of the Full Bench was made. In my view it was reasonable for the plaintiff to seek to challenge the Commissioner's decision by applying for leave to appeal to the Full Bench since it was open to the Full Bench to correct the Commissioner's jurisdictional error. That course forestalled the argument that prerogative relief ought be refused in this Court on grounds that the plaintiff had not exhausted other avenues of relief. No prejudice has been shown. I am satisfied that it is appropriate to grant an extension of time for the filing of the summons.

Costs

1. I have not heard the parties on costs. Ordinarily costs would follow the event: UCPR, r 42.1. I will make that order, subject to the parties' right to make a different application to my Associate within seven days.

Orders

1. For the reasons set out above, I make the following orders: 1. Pursuant to Uniform Civil Procedure Rules, r 59.10, extend the time to commence the proceedings up to and including 17 May 2017. 2. Set aside the decision of the Industrial Relations Commission made by Commissioner Murphy on 11 October 2016. 3. Set aside the decision of the Full Bench of the Industrial Relations Commission made on 28 February 2017. 4. Remit the defendant's application under s 84 of the Industrial Relations Act 1996 (NSW) to the Industrial Relations Commission to be determined according to law. 5. Unless there is a written application to my Associate for a different order within seven days hereof, order the defendant to pay the plaintiff's costs of the proceedings.

Amendments 01 December 2017 - Paragraph 5: Changed "its determination" to "in his determination". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 December 2017