(c) Order (3) in paragraph [265] of Pearcy v Department of Attorney General and Justice - Corrective Services

DECISION of THE VICE-PRESIDENT 1In Matter Nos IRC 1226, 1227 and 1228 of 2012, the Department of Attorney General and Justice - Corrective Services ('the Department') applies for leave to appeal and appeal against the decision of Harrison DP in Pearcey and Others and Department of Attorney General and Justice - Corrective Services [2012] NSWIRComm 132 ('Pearcey v Correctional Services') restraining the Department from terminating the employment of Mr Richard Woelfl ("Officer Woelfl"), Mr David Pearcey ('Officer Pearcey') and Mr Matthew Barnett ('Officer Barnett') (these officers shall be referred to collectively, where appropriate, as 'the officers') and to return each of the men to employment as Corrective Services Officers with the Department at Grafton Correctional Facility ('the Facility'). Those matters were heard concurrently with Matter Numbers IRC 1243 and 1244 of 2012 in which the Public Service Association Amalgamated Union of New South Wales ('the PSA'), on behalf of two of its members, Officers Barnett and Woelfl, applied for leave to appeal and appeal against the decision of Harrison DP in Pearcey v Correctional Services making the orders to 'return to work', subject to Officer Barnett being cautioned in respect of his conduct and Officer Woelfl being demoted to a lower grade due to misconduct ('the cross-appeals'). 2At the hearing of the matter on 28 March 2013, the Full Bench determined not to call on Ms P F Lowson of counsel, who appeared for the PSA, with respect to Matter Nos IRC 1227, 1228, 1243 and 1244 of 2012. In the result, counsel was required to address the Full Bench only in relation to Matter No IRC 1226 of 2012 (being the Department's appeal in relation to Officer Woelfl). That course was taken given the view of the Full Bench that, in respect of the Department's appeals in IRC 1227 and 1228 of 2012, leave to appeal should be granted and, for reasons which shall be discussed below, the appeals should be dismissed (although, as noted below, the Department's appeal in IRC 1227 of 2012 ultimately took a different course). In respect of the cross-appeals of the PSA, it was common ground between the parties that those appeals should be upheld, given that the conditions imposed by Harrison DP were beyond power. 3After the Full Bench reserved the matters for decision on 28 March 2013, a Notice of Discontinuance was filed by the Department, on 5 April 2013, in relation to its appeal against Harrison DP's decision and orders regarding Officer Pearcey in Matter No IRC 1227 of 2012 (the cross-appeals brought by the PSA did not concern Officer Pearcey). I would grant leave to discontinue Matter No IRC 1227 of 2012. In the result, it shall not form part of my deliberations in this decision, although Mr Pearcey's circumstances will form part of the background to my considerations.

Factual Background 4The following represents a summary of the factual matters which were uncontested between the parties. (The factual matters which were contested shall be identified below in the summary of submissions and addressed in the consideration of these appeals.) 5These matters arose from an incident which occurred at the Facility on 10 June 2010 leading to the death of an inmate at the Facility, Mr Ian Robert Klum. 6The incident occurred during the 'B Watch', a night shift which ran between midnight and 8 am. On any B Watch shift, there were, at the date of the incident, eight staff rostered on at the Facility. On the night of the incident, the eight staff included Officer Pearcey, who was stationed in the detox unit in the Facility's clinic, Officer Barnett, who was working as a 'rover' stationed in the main section of the Facility, and Officer Woelfl. 7Officer Woelfl had commenced employment with the Department in 1986 and, between then and 2010, had worked at various correctional facilities around New South Wales. As at 10 June 2010, he was employed as a Senior Correctional Officer at the Facility. On the night of the incident, Officer Woelfl was undertaking the role of 'Night Senior'. The Night Senior was in charge of the Facility during a night shift in place of the General Manager. The main responsibility of that officer was to supervise the other officers on duty on the night shift and to maintain the good order and operations of the Facility. The Night Senior was the most senior correctional officer in charge of the Facility until a Commissioned Officer commenced working in the morning on the day shift between 6 am and 8 am. 8At approximately 2.20 am on 10 June 2010, Mr Klum called for assistance (this call was referred to in proceedings as the 'knock up call'). Officers Woelfl, Barnett and Pearcey responded to the knock up call and attended the cell where Mr Klum was located (cell 219). Upon attending the cell, Officer Woelfl was informed by Mr Shane Johnson, the inmate sharing a cell with Mr Klum, that there had been an altercation between the two men. Mr Klum was observed by Officer Woelfl to have a small amount of dried blood under his nose and complained at that time of a headache. 9It was determined by Officer Woelfl that Mr Klum and Mr Johnson would be separated by way of Mr Klum moving from cell 219 to cell 225. Mr Klum crawled from his cell to cell 225. 10After Mr Klum had been secured in cell 225, Officer Woelfl determined that the inmate should be medically assessed and proceeded to telephone the Nurse Unit Manager in Sydney, Mr Michael Nolan. That call occurred at approximately 2.35 am on 10 June 2010. Having been informed by Mr Nolan that an on-call nurse could be summonsed, Officer Woelfl called in the on-call nurse, Ms Merye White. That call occurred at 2.37 am. It was necessary to call in an on-call nurse because, from January 2009, no nurse was rostered on a night shift at the Facility (prior to that time, a nurse was stationed on duty at the Facility 24 hours a day). 11After having called in Nurse White, Officer Woelfl, together with Officers Barnett and Pearcy and another officer rostered as a 'rover' on the B Watch, Ms Louise Gilbert, attended cell 225. By this time, approximately eight minutes had passed since the knock up call had been made by Mr Klum. 12Upon the officers attending the cell, Mr Klum reported that he was "spinning out" and could not stand up. It was reported by Officer Woelfl that, at that time, he noticed Mr Klum had a fresh cut above his eyebrow which had not been present when he was earlier attended to in cell 219. Officers Woelfl and Barnett then escorted Mr Klum down several flights of stairs to an observation cell in the Facility's clinic to await the arrival of Nurse White. Whilst in the observation cell, Mr Klum was monitored by Officer Pearcey. 13Nurse White attended the Facility at approximately 3.17 am (approximately 40 minutes after the time of the knock up call). She observed Mr Klum to have a small laceration above his right eyebrow and, later, a swollen nose. Nurse White was responsible for all medical decisions concerning Mr Klum from the time of her arrival onwards. 14At approximately 5.30 am, Nurse White arranged for Mr Klum to be transferred by ambulance to Grafton Base Hospital. There his condition deteriorated. He underwent emergency surgical procedures to reduce a subdural haematoma, and was subsequently transferred to Princess Alexandria Hospital in Brisbane where he ultimately died four days later. 15Following the incident, on 11 June 2010, investigators attended the Facility and interviewed Officers Woelfl and Pearcey in relation to the incident. 16Officer Woelfl (by letter dated 11 June 2010) and Officers Barnett and Pearcey (by separate letters dated 21 June 2010) were subsequently informed by Mr Gerard ('Gerry') Schipp, the Deputy Commissioner of Corporate Services at the Department, that allegations of misconduct had been made against them in relation to the 10 June incident, and that he had determined to treat the allegations as disciplinary matters under s 46(1)(a) of the Public Sector Employment and Management Act 2002 ('PSEM Act'). The investigations were to be undertaken by Mr David Byrne (General Manager, Investigations Branch), or one of his nominated staff. The respective letters also advised that, once the respective investigations were complete, disciplinary action may be considered against each the officers (which disciplinary action could include, amongst other things, dismissal). 17By separate letters of the same dates, the officers were also informed by Mr Schipp that they had each been suspended (with pay) "from duty effective immediately until the allegation of misconduct has been dealt with" in accordance with s 49(1)(a) of the PSEM Act. Those decisions to suspend were each to be reviewed in 30 days. 18The disciplinary investigation against each of the officers was suspended for the period between 24 August and 23 December 2010 pending the completion of the investigation of the incident by NSW Police. The disciplinary investigation was subsequently recommenced following the receipt of advice by Mr Schipp that NSW Police did not intend to lay criminal charges against any of the officers. 19It may also be noted at this juncture that, in separate letters dated 30 August 2010, Mr Schipp advised each officer that he was considering converting their suspension on pay to suspension without pay. That action was opposed by the officers, but was confirmed by Mr Schipp on 5 October 2010 on the basis that his decision would be reviewed in 30 days. The issue of suspension without pay was subsequently subject to dispute proceedings in the Commission before Marks J (Matter No IRC 1489 of 2011) on 18 October 2010, following which the Department accepted his Honour's recommendation and reversed the decision to suspend the officers without pay. 20Ultimately, two internal investigations were conducted in respect of each of the officers, which investigations led to findings of misconduct against each of the officers.

Officer Woelfl 21By letter dated 28 June 2010 signed by Mr Simon Berry (Principal Investigator, Investigations Branch), Officer Woelfl was advised of the allegations of misconduct against him to which he was asked to respond. Those allegations were in the following terms: That you failed to comply with section 13 (Serious Incidents) of the Operations and Procedures Manual and Part D Serious Incident Response Policy In that you did not take reasonable steps to preserve the crime scene in response to a serious incident In that you did not inform the on call Manager of Security or General Manager of the Incident In that you did not designate an officer to secure the crime scene until the arrival of police In that you did not appoint a designated officer to maintain a register of personnel entering and exiting the crime scene In that you did not ensure that inmate JOHNSON was placed in a separate cell In that you did not arranged [sic] for observations of Inmate JOHNSON to occur as to ensure that he did not interfere with the crime scene either by washing or removing evidence from his body, clothes or cell In that you did not arrange for and or provide all written reports within a reasonable time to the General Manager from all staff involved in this incident. That you failed to comply with section 7.3.2.3 "Medical Care of Inmates" of the Operations and Procedures Manual In that you did not seek medical attention immediately for Inmate KLUM upon observing that he could not walk unaided That you breached clause 253 of the Crimes (Administration of Sentences Regulation) 2008 In that you did not report that inmate JOHNSON was suspected of committing an offence against inmate Klum to the General Manager immediately In that you did not confine inmate JOHNSON in an appropriate place of confinement pending instructions on how the inmate should be dealt with in response to a serious incident occurring On or about 11 June 2010, when interviewed in relation to this incident you provided false and misleading information in breach of clause 260 of the Crimes (Administration of Sentences Regulation) 2008 That you were grossly negligent in the performance of your duties relating to this incident in that You did not assist Inmate KLUM from cell 219 to 225 being aware that he could not assist himself You did not remove Inmate JOHNSON from cell 219 to ensure the crime scene integrity was preserved You left Inmate KLUM for approximately 8 minutes in cell 225 unattended when it was clear he required medical attention 22Officer Woelfl was interviewed on 13 July 2010 in relation to the specific allegations contained in the 28 June letter. 23Following the recommencement of the disciplinary investigations after the completion of the investigation by NSW Police, Mr Berry wrote to Officer Woelfl, in a letter dated 24 January 2011, re-iterating the allegations of misconduct against him. Those allegations appeared in the same form as the allegations contained in the letter of 28 June 2010 (set out above), save for the addition of five further particulars in relation to the allegation as to the provision of false and misleading information. Those additional particulars were as follows: 4. On or about 11 June 2010, when interviewed in relation to this Incident you provided false and misleading information in breach of clause 260 of the Crime (Administration of Sentences Regulation) 2008 in that you stated, "I can't recall whether we picked him up or not to move him but everywhere we had to pick him up and move him...I put him in the cell." When questioned at 221 it was asked "Ok....can you tell me how the inmate got to 225?" And you stated at answer 222 "I can't recall, I think he started crawling and got about half way and I think Mr Barnett and Mr Pearcy picked him up under the arms..." When it is clear on CCTV that Inmate KLUM crawled to cell 225 and he was not moved, assisted aided or otherwise helped by yourself or any other officer. You stated that whilst at cell 225, inmate KLUM "...wouldn't walk" In your answer 361 and in answer 362 stated, "Yeah, he said, he wouldn't walk, directed him to get up and walk, and he said No..." Yet contained within the audio of the "Knock-up" from cell 225, you were heard to direct inmate KLUM up off the floor and he responded a number of times "I am spinning out" but never said the word "No" 24Officer Woelfl participated in a further interview on 10 February 2011 and provided a written submission in response to the allegations against him.

Officers Pearcey and Barnett 25Officer Pearcey was first informed of the specific allegations of misconduct against him in a letter by Mr Berry dated 24 January 2011. Officer Barnett received a letter to the same effect on 25 January 2011. 26The allegations in relation to the conduct of Officer Pearcey were in the following terms: 1. That you failed to comply with section 13 (Serious Incidents) of the Operations and Procedures Manual In that you did not take reasonable steps to preserve the crime scene in response to a serious incident 2. That you failed to comply with section 7.3.2.3 (Medical Care of Inmates) of the Operations and Procedures Manual. In that you did not seek medical attention immediately for inmate KLUM upon discovering that he could not walk unaided 3. That you breached clause 253 of the Crimes (Administration of Sentences Regulation) 2008, In that you did not report that Inmate JOHNSON was suspected of committing an offence against Inmate KLUM to the General Manager immediately. In that you did not confine Inmate JOHNSON in an appropriate place of confinement pending instructions on how the inmate should be dealt with in response to a serious incident occurring. 4. That you were grossly negligent in the performance of your duties relating to this incident in that, You did not assist Inmate KLUM from cell 219 to 225 being aware that he could not assist himself. You did not remove Inmate JOHNSON from cell 219 to ensure the crime scene Integrity was preserved. You left Inmate KLUM for approximately 8 minutes in cell 225 unattended when it was clear he required medical attention. 5. On or about 10 June 2010, you submitted an Officer Report form that contained false and misleading information In breach of clause 260 of the Crimes (Administration of Sentences Regulation) 2008; in that you stated; "...he was assisted over to the other side of 5 wing and placed in a vacant cell..." when it is clear on CCTV that Inmate KLUM crawled to cell 225 and he was not moved, assisted aided or otherwise helped by yourself or other officers 6. On or about 11 June 2010, when interviewed you provided false and misleading information to Investigators relating to his incident; in that you responded to question 141, "...Can you tell me is it correct to say that inmate Klum was moved from cell 219 and put into cell 225?' and you stated, "He was put in a call across the way..." And further to Question 144 "...he was moved from cell 219 to another cell?" And you stated "Yeah, assisted out of it" Question 154 "how did inmate Klum get from one cell to the other?" You stated "He was held up by Mr Woelfl and Mr Barnett by his, you know, by his arms" And you further stated at Answer 158 "He, he was assisted over because he, you, said, oh, you know, oh, like a rag doll sort of floppy" Question 160 "I just wanted to clarify, now you say that inmate Klum was assisted over, talking from cell 19 (sic 219) to cell 225 And you stated "Yeah, it was on, that'd be on the, the CCT yes, yeah" And further you stated "he was encouraged to come by Mr Woelfl and Mr Barnett to come to the door and when he reach that then he was assisted" Further it was asked at Q167 "Ok, and I, I just want to be very specific about this David, he was inside the cell and he was assisted from inside cell 219 to the door or to the other cell..." And you stated, "he was assisted..." And at answer 170 "I am certain cause it's, like, you know, I, I, I saw him helped across and that will be verified by CCT". When it is clear on CCTV that Inmate KLUM crawled to cell 225 and he was not moved, assisted aided or otherwise helped by yourself or any other officer. 27The allegations numbered one to four in relation to the conduct of Officer Barnett were identical to those numbered one to four in relation to Officer Pearcey (set out above). The allegation numbered five in relation to Officer Barnett was in the following terms: 5. On or about 10 June 2010 you submitted an Officer Report form that contained false and misleading information in breach of clause 260 of the Crimes (Administration of Sentences Regulation) 2008, in that you stated the following: "We moved inmate KLUM to cell 225" when it is clear on CCTV that Inmate KLUM crawled to cell 225 and he was not moved, assisted or aided or otherwise helped by yourself or any other officer. 28Officers Pearcey and Barnett participated in separate interviews on 10 February 2010 and each provided written submissions on that date in relation to the allegations against them.

Further Allegations 29After having been informed by Mr Schipp of the findings of misconduct against them in relation to the investigations into the original set of allegations, each of the officers were informed by Mr Schipp, by separate letters dated 21 July 2011, that he had received a further allegation that the officers had engaged in misconduct, which allegation would also be dealt with as a disciplinary matter and subject to a further investigation. Officers Pearcey and Barnett were again suspended pending the outcome of the further investigation (Officer Woelfl remained suspended from the original investigation). 30The further allegation was the same in respect of each of the officers. That allegation was in the following terms: The details of the alleged misconduct relate to an incident on or about 10 June 2010 when you responded to a knock up call to attend the cell of inmate KLUM (MIN: 132350) in that: You failed to turn the light on to inspect the cell when you arrived. You failed to inspect the cell at any time during the incident or thereafter. Despite finding inmate Klum sitting slouched on the floor with blood on his face, you made no proper inspection of his injuries or the cell to assist in your determination of what had occurred. By failing to properly respond to the knock-up call you have breached your duty of care to inmate KLUM.

Re Officer Woelfl 31Following the disciplinary investigation into the original set of allegations against Officer Woelfl, an Investigation Report, dated 23 June 2011, was completed by Mr Shane Bagley (Senior Investigator, Investigations Branch). 32In that report, Mr Bagley found original allegations three, four and five against Officer Woelfl to be wholly substantiated. With respect to allegation one, Mr Bagley found that allegation to be substantiated with the exception of the third particular (regarding a failure to secure the crime scene). The second allegation, regarding a failure to seek medical attention, was found to be unsubstantiated. Mr Bagley recommended that the decision maker consider his findings and that no further action be taken in respect of allegation two. 33Following the disciplinary investigation into the further allegation against Officer Woelfl, another Investigation Report, dated 12 January 2012, was completed by Mr Byrne. In that report, Mr Byrne found the further allegation to be substantiated.

Re Officer Barnett 34Following the disciplinary investigation into the original set of allegations against Officer Barnett, an Investigation Report, dated 23 June 2011, was also completed by Mr Bagley. 35In that report, Mr Bagley found original allegations one, two, three and five to be unsubstantiated. In relation to the fourth allegation, Mr Bagley found the allegation to be substantiated insofar as the officer did not assist Mr Klum but not in the sense of him being "grossly negligent in the performance of his duties", and recommended that no further action be taken in relation to the crime scene integrity and medical attention issues contained therein. 36Following the further disciplinary investigation into the additional allegation against Officer Barnett, another Investigation Report, dated 12 January 2012, was completed by Mr Byrne. In respect of Officer Barnett, Mr Byrne found the further allegation to be substantiated.

Re Officer Pearcey 37Following the disciplinary investigation into the original allegations against Officer Pearcey, an Investigation Report, dated 23 June 2011, was completed by Mr Bagley. 38In that report, Mr Bagley found original allegations one, two and three against Officer Pearcey to be unsubstantiated. In respect of the fourth allegation, Mr Bagley found, as he did in regard to Officer Barnett, that the allegation was substantiated only in respect of the fact that the officer did not assist Mr Klum. Allegation five was found to be substantiated. Allegation six was found to be substantiated in relation to questions 154, 158, 166, 167 and 170, but not in relation to questions 141 and 144. 39Following the disciplinary investigation into the further allegation against Officer Pearcey, a further Investigation Report, dated 12 January 2012, was completed by Mr Byrne. In respect of Officer Pearcey, Mr Byrne found the further allegation to be substantiated.

Final decisions of Mr Schipp as to Misconduct and Disciplinary Action

Re Officer Woelfl 40In response to the Investigation Report dated 23 June 2011, Mr Schipp wrote to Officer Woelfl on 21 July 2011 advising him that he had formed the opinion that the officer had engaged in misconduct on the basis of allegations one (with the exception of particular four), two, three and five. (It may be noted that Mr Schipp's finding with respect to allegation two - dealing with a failure to seek medical attention - was at odds with the finding of the investigator, Mr Bagely, who recommended in his report that no further action be taken in respect of that allegation.) No reference was made to allegation four, that is, the allegation dealing with the provision of false and misleading information. The letter informed that the most severe penalty Mr Schipp was considering against Officer Woelfl was dismissal. 41Following the Investigation Report dated 12 January 2012, Mr Schipp wrote to Officer Woelfl on 28 February 2012 to inform him of his findings as to misconduct and that, again, the most severe penalty he was considering was dismissal. 42The final findings as to misconduct were contained in Mr Schipp's letter of 28 February as follows: I refer to my letter to you dated 21 July 2011 in which I advised you that I have formed the opinion that you had engaged in misconduct as follows: 1. That you failed to comply with section 12 (Serious Incidents) of the Operations and Procedures Manual and Part D Serious Incident Response Policy. In that you did not take reasonable steps to preserve the crime scene in response to a serious incident. In that you did not inform the on call Manager of Security or General Manager of the incident. In that you did not designate an officer to secure the crime scene until the arrival of the police. In that you did not ensure that Inmate Johnson was placed in a separate cell. In that you did not arrange for observations of Inmate Johnson to occur as to ensure that he did not interfere with the crime scene, either by washing or removing evidence from his body, clothes or cell. In that you did not arrange for and or provide all written reports within a reasonable time. [sic] to the General Manager, from all staff involved in this incident. 2. That you breached clause 253 of the Crimes (Administration of Sentences Regulation) 2008. In that you did not report that Inmate Johnson was suspected of committing an offence against Inmate Klum. [sic] to the General Manager immediately. In that you did not confine Inmate Johnson in an appropriate place of confinement pending instructions on how the inmate should be dealt with in response to a serious incident occurring. 3. That you were grossly negligent in the performance of your duties relating to this incident in that. You did not assist Inmate Klum from cell 219 to 225 being aware that he could not assist himself. You did not remove Inmate Johnson from cell 219 to ensure the crime scene integrity was preserved. You left Inmate Klum for approximately 8 minutes in cell 225 unattended when it was clear he required medical attention. ... I have considered the Investigation Report (regarding the further enquiries) and I have formed the opinion that you can engaged in misconduct as follows: About 2.20am, 10 June 2010, when responding to a cell-call (knock up) from Inmate Ian KLUM (MIN 371957) at cell 219, 5 Wing, Grafton Correction Centre, you breached your duty of care to Inmate KLUM by failing to properly respond to the incident in that: a. you did not turn on the cell light to inspect the cell upon arrival; b. you did not inspect the cell at any time during the incident or thereafter; c. you did not properly inspect inmate KLUM's injuries or the cell to assist in determining what had occurred despite finding inmate KLUM sitting slouched on the floor with blood on his face. 43In other words, Mr Schipp found that Officer Woelfl had engaged in misconduct on the basis of original allegations one (with the exception of the fourth particular regarding the failure to designate an officer to man a register of personnel entering and exiting the crime scene) three and five and the further allegation. 44Mr Schipp's findings in relation to allegations three and five were therefore consistent with the findings of Mr Bagley in this respect that those allegations were substantiated. Mr Schipp's finding as to original allegation one was inconsistent with the finding of Mr Bagley insofar as Mr Bagley found allegation one to be substantiated but for the third (rather than the fourth, as found by Mr Schipp) particular. The letter by Mr Schipp omitted any reference to original allegation four (regarding the provision of false and misleading information), notwithstanding Mr Bagley's finding that it had been substantiated. There was also no reference by Mr Schipp to original allegation two (however this was consistent with the finding by Mr Bagley that it was unsubstantiated). Finally, in respect of the further allegation, the finding of Mr Schipp was consistent with that made by Mr Byrne in his report. 45On 17 May 2012, Mr Schipp wrote to Officer Woelfl advising him that he had considered the officer's submissions in response to the findings made in the letter of 28 February and had decided to take disciplinary action against him in the form of dismissing him from the public service. 46It may be noted that the decision with respect to Officer Woelfl could not take effect at that time given interlocutory orders which had been made by Boland J on 24 April 2012 in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales on behalf of Pearcey, Barnett and Woelfl v Department of Attorney General and Justice - Corrective Services NSW [2012] NSWIRComm 33 in relation to the applications for relief from threat of unfair dismissal brought pursuant to s 89(7) of the Industrial Relations Act 1996 ('the IR Act') which had been filed by the PSA on behalf of the officers on 17 April 2012 (Matter Nos IRC 504, 505 and 506 of 2012). The orders made by Boland J were to the effect that the Department was restrained from dismissing the officers pending the hearing and determination of the proceedings.

Re Officers Barnett and Pearcey 47In response to the Investigation Reports dated 23 June 2011, Mr Schipp wrote separately to Officers Barnett and Pearcey on 21 July 2011 advising the officers he had formed the view they had engaged in misconduct on the basis of allegation four, namely, that the officers had been grossly negligent in the performance of their duties, in particular, by not assisting Mr Klum between cell 219 and cell 225 and by leaving Mr Klum unattended for a period of eight minutes in cell 225 when it was clear he required urgent medical attention. The letters informed that the most severe penalty Mr Schipp was considering against Officers Barnett and Pearcey was demotion. Officers Barnett and Pearcey were both directed to return to work on 25 July 2011. (It may be noted that Mr Schipp's findings, in this respect, were at odds with those of the investigator, Mr Bagley, who, in his reports in respect of both Officer Barnett and Officer Pearcey, found allegation four to be substantiated only insofar as the officers did not assist Mr Klum between cells, but not in the sense of their having been grossly negligent in the performance of their duties.) 48Following the Investigation Reports dated 12 January 2012, Mr Schipp again wrote separately to Officers Barnett and Pearcey on 28 February 2012 to inform the officers of his findings as to misconduct and that the most severe penalty he was now considering for each officer was dismissal. 49The final findings as to misconduct against Officers Barnett and Pearcey were contained in the letters of 28 February. Those findings were in the same terms for both officers, as follows: I refer to my letter to you dated 21 July 2011 in which I advised you that I have formed the opinion that you had engaged in misconduct as follows: 1. That you were grossly negligent in the performance of your duties relating to this incident in that: You did not assist Inmate Klum from cell 219 to cell 225 being aware that he could not assist himself. You left Inmate Klum for approximately 8 minutes in cell 225 unattended when it was clear he required medical attention. ... I have considered the Investigation Report (regarding the further enquiries) and I have formed the opinion that you have engaged in misconduct as follows: About 2.20am, 10 June 2010, when responding to a cell-call (knock up) from Inmate Ian KLUM (MIN 371957) at Cell 219, 5 Wing, Grafton Correctional Centre, you breached your duty of care to Inmate KLUM by failing to properly respond to the incident in that: a. you did not turn on the cell light to inspect the cell upon arrival; b. you did not inspect the cell at any time during the incident or thereafter; c. you did not properly inspect Inmate KLUM's injuries or the cell to assist in determining what had occurred despite finding Inmate KLUM sitting slouched on the floor with blood on his face. 50In other words, in relation to Officer Barnett, Mr Schipp found that the officer had engaged in misconduct on the basis of original allegation four with the exception of the second particular (regarding the failure to remove Mr Johnson from cell 219 in order to preserve the crime scene integrity). That finding was consistent with the finding made by Mr Bagley in his report with respect to allegation four save for the finding of gross negligence. Mr Schipp made no reference to original allegations one, two, three or five against Officer Barnett (however, those omissions were consistent with the findings of Mr Bagley that those allegations were unsubstantiated). In respect of the further allegation, the finding of Mr Schipp was consistent with that made by Mr Byrne in his report. 51In respect of Officer Pearcey, Mr Schipp found that the officer had engaged in misconduct on the basis of original allegation four with the exception of the second particular. That finding was also consistent with the finding made by Mr Bagley in his report with respect to allegation four. Mr Schipp made no reference to original allegations one, two or three against Officer Pearcey (consistent with the findings of Mr Bagley that those allegations were unsubstantiated). Mr Schipp, however, omitted reference to original allegations five and six against Officer Pearcey (regarding the provision of false and misleading information), notwithstanding Mr Bagley had found allegation five to be wholly substantiated and allegation six to be substantiated with the exception of certain questions. Finally, in respect of the further allegation, the finding of Mr Schipp was consistent with that made by Mr Byrne in his report. 52On 17 May 2012, Mr Schipp wrote separately to Officers Barnett and Pearcey advising them he had considered their submissions in response to the findings made in the letters of 28 February and had decided to take disciplinary action against them in the form of directing them to resign.

Proceedings Before Harrison DP 53The applications for relief from threat of unfair dismissal brought by the PSA on behalf of the officers were heard by Harrison DP over six days on 10, 11 and 12 July, 15 and 16 August and 6 September 2012, which hearing resulted in the impugned decision by Harrison DP published 28 November 2012 in which his Honour made the following orders (at [265] and [266]): 265 The Commission makes the following orders pursuant to s 89(7) of the Industrial Relations Act 1996: (1) In Matter No IRC12/504 the Department of Attorney General and Justice - Corrective Services shall not terminate the employment of Officer David Pearcey arising from the events subject to these proceedings. Officer Pearcey is to be returned to employment as a Corrective Services Officer with the Department of Attorney General and Justice - Corrective Services at Grafton Correctional Facility. (2) In Matter No IRC12/505 the Department of Attorney General and Justice - Corrective Services shall not terminate the employment of Officer Matthew Barnett arising from the events subject to these proceedings. Officer Barnett is to be returned to employment as a Corrective Services Officer with the Department of Attorney General and Justice - Corrective Services at Grafton Correctional Facility subject to a caution in respect to conduct. (3) In Matter No IRC 12/506 the Department of Attorney General and Justice - Corrective Services shall not terminate the employment of Officer Richard Woelfl arising from the events subject to these proceedings. Mr Woelfl is to be returned to employment as a Corrective Services Officer with the Department of Attorney General and Justice - Corrective Services at Grafton Correctional Facility subject to demotion to a lower grade. 266 I so order. 54The evidence before Harrison DP consisted of CCTV footage and audio of the area outside cells 219 and 225, substantial documentary evidence including statements made by each of the officers and an affidavit of Mr Schipp attaching all relevant correspondence, photographs and Investigation Reports. Oral evidence, in chief and provided under cross-examination, was taken from Officers Woelfl, Barnett and Pearcey, and Mr Schipp. 55At [34] of his decision, Harrison DP identified the key issues for consideration as follows: The issues reduce to three specific considerations to inform an assessment of whether the Officers' conduct amounted to serious and wilful misconduct so as to warrant termination of employment; or whether such termination would be harsh, unreasonable and unjust. Those considerations are: (1)Was it reasonable to allow Mr Klum to crawl across the floor from Cell 219 to Cell 225 or was it inappropriate disregard for his physical wellbeing and dignity? (2)Was there sufficient grounds to warrant a search of Cell 219 and the establishment of a crime scene, or did the Officers fail to do their duty? (3)Did the officers display an inappropriately aggressive and demeaning attitude toward Mr Klum when moving him from Cell 225 to the observation area or were their actions reasonable in the circumstances? 56In his reasoning, Harrison DP made separate findings as to each officer as follows (at [229] to [264]): SUMMARY OF FINDINGS IN MATTER IRC 506 OF 2012 - OFFICER WOELFL 229 In July 2011 Mr Schipp advised Officer Woelfl that he was considering dismissal in respect to failure to establish a crime scene and other matters set out above (para 49) and additional charges relating to failure to inspect cell 219. 230 The most serious charge laid against Officer Woelfl is that he was grossly negligent in the performance of his duties in not assisting Mr Klum from cell 219 to cell 225 and leaving him there for eight minutes when it was clear that he required medical attention. 231 I find these allegations not substantiated on the evidence. 232 Mr Klum was offered assistance, which he refused. It became obvious to the Officers present that Mr Klum did not want to be touched. This attitude is consistent with the fear and anxiety Mr Klum told Dr Petroff that he experienced in gaol. 233 It is entirely probable that, had the Officers pressed assistance upon Mr Klum against his will, he may have resisted, making matters worse. 234 The charge of misconduct in leaving Mr Klum in cell 225 for eight minutes is not sustained on the evidence. 235 Officer Woelfl acted immediately to obtain medical assistance for Mr Klum. The fact that he had to telephone for approval and then wait for the nurse to arrive is a matter of Departmental procedure, not the construction [sic] of Officer Woelfl. 236 Having regard to the uncontested fact that correctional officers are not permitted to render medical assistance, Officer Woelfl had no option but to call for assistance. 237 The evidence is that calling directly for an ambulance is a rare and unusual event and that the standard operating procedure is to call the nurse. 238 On close examination of the CCTV images of Mr Klum moving from cell 219 to cell 225 it is clear that he was not injured in this process. 239 It is appropriate to make the distinction that Mr Klum was not made to crawl, he was allowed to crawl, and that this was limited to the movement from cell 219 to cell 225. 240 It was entirely reasonable for Mr Klum to be given a brief time in cell 225 to compose himself prior to the next part of the move to the observation cell, which included navigating a stairwell, for which Mr Klum was afforded assistance which by then he was prepared to accept. 241 Officer Woelfl was faced with a difficult set of circumstances and made judgements as he was required to do, which are supportable. 242 The remainder of the charges against Officer Woelfl address the failure to investigate cell 219, establish a crime scene, and reporting of the incident. 243 I accept the evidence of Mr Schipp that all of these matters have their foundation in the failure to make a proper observation of cell 219. 244 As the Senior Officer in charge, Officer Woelfl was responsible for these errors of judgement, none of which I note go to the care and wellbeing of Mr Klum. 245 Failure to investigate, establish a crime scene and report, amounts to misconduct which warrants sanction. This misconduct is not, in my assessment, serious and wilful misconduct warranting termination of employment. 246 The Department has a range of sanctions open to it and of those I determine, having regard to all of the circumstances, including the exemplary service record of Officer Woelfl, that demotion to a lower grade is the appropriate penalty. SUMMARY OF FINDINGS IN MATTER IRC 505 OF 2012 - OFFICER BARNETT 247 The decision of Mr Schipp in July 2011 that Officer Barnett return to duty on 25 July 2011 and be subject to the disciplinary penalty of demotion for failing to assist Mr Klum from cell 219 to cell 225 and leaving him in cell 225 for eight minutes when he required medical attention, denotes that the sanction of dismissal is not applied in respect to these matters. 248 The difficulty with these charges is that Officer Barnett had no capacity to instigate an inspection of cell 219 of his own volition, nor was he directed to do so. 249 Officer Barnett was not responsible for placing Mr Klum into cell 225, or for the decision to leave him there for a short period while medical assistance was called. 250 Officer Barnett was under the direction of Officer Woelfl at all times and was required to follow instructions. 251 While not part of any of the formal charges conveyed by Mr Schipp in his decision that Officer Barnett be dismissed, there was severe criticism of the way in which Officer Barnett spoke to Mr Klum when he and other officers returned to transfer Mr Klum from cell 225 to the observation area to await arrival of the nurse. 252 I consider Officer Barnett to have been overly severe and unsympathetic in this exchange. 253 I accept the evidence of Officer Barnett that he does not change his demeanour from that of firm authority as such an attitude is necessary to maintenance of order and discipline within the correctional centre. 254 This may be so, however, I find that Officer Barnett should have assessed the situation better and that his tone and demeanour was inappropriate. 255 This is not conduct that warrants termination of employment. 256 I consider the appropriate disciplinary action available to the Department to be that of a caution. SUMMARY OF FINDINGS IN MATTER IRC 504 OF 2012 - OFFICER PEARCEY 257 Mr Schipp's decision that Officer Pearcey return to duty on 25 July 2011 and be subject to the disciplinary penalty of demotion for failing to assist Mr Klum from cell 219 to cell 225 and leaving him in cell 225 for eight minutes, denotes that the sanction of dismissal is not applied for these matters. 258 The subsequent investigation into failure to investigate the circumstances by conducting an inspection of cell 219 took the sanction to dismissal. 259 The difficulty with this view is that Officer Pearcey had no capacity to instigate an inspection of cell 219, nor was he directed to do so. 260 Officer Pearcey was not responsible for placing Mr Klum in cell 225 or for obtaining medical assistance. He was under the direction of Officer Woelfl at all times and required to follow instructions. 261 Having regard to his limited role in the events, his service record, admissions and genuine contrition, I conclude that termination of Officer Pearcey's employment would be harsh, unreasonable and unjust. 262 Officer Pearcey is to be returned to duty as a Corrective Services Officer at Grafton Correctional Facility. 263I find that Officer Pearcey is not guilty of misconduct and no sanction should apply to him. 264 Further to Officer Pearcey's credit is the care and attention he offered Mr Klum in the observation area pending the arrival of Nurse Whyte and the assistance provided to her for the benefit of Mr Klum.

The Applications for Leave to Appeal and Appeal 57The Department and the PSA, in their respective appeals to the Full Bench of the Commission, applied for leave to appeal and appeal against the decision of Harrison DP pursuant to s 187 of the IR Act. 58In the applications for leave to appeal and appeal in Matter Nos IRC 1226, 1227 and 1228, the appeals are stated as being against the whole of the decision and orders made by Harrison DP in Pearcey v Correctional Services. 59The Department relied, in support of those appeals, upon 9 common grounds (numbered (a) to (j)) as follows: (a) The learned Deputy President, in applying the test of "serious and wilful misconduct so as to warrant termination of employment" applied the wrong test to the facts before him in exercising the Commission's powers under section 89 of the Act. (b) In applying the wrong test, the learned Deputy President erred in not finding that all three respondents had committed misconduct such as to render their threatened dismissals neither harsh, unreasonable nor unjust. (c) The learned Deputy President had an obligation to raise with the parties the possibility that he might purport to exercise disciplinary powers against two of the respondents for the misconduct which he found had been committed by them. (d) The failure of the learned Deputy President to raise with the parties the possibility that he might purport to exercise disciplinary powers against two of the respondents constituted a denial of procedural fairness to the appellant. (e) The learned Deputy President erred in purporting to exercise disciplinary powers pursuant to section 89 of the Act in circumstances where such powers reside in the Department Head pursuant to Part 2.7 of the Public Sector Employment and Management Act 2002 and the exercise of such powers by the Department Head is not reviewable by the Commission. (f) The learned Deputy President erred in failing to make a finding, in the case of Officer Woelfl, that reinstatement was impracticable before purporting to make an order that he be returned to employment in a different position from that which he held at the time of his threatened dismissal. (g) The learned Deputy President erred in failing to specify the position into which Officer Woelfl was to be returned. (h) The learned Deputy President erred in failing to consider whether such a position (or any position) was available and suitable. (i) The learned Deputy President erred in ordering the demotion of Officer Woelfl and the cautioning of Officer Barnett as a form of disciplinary action in proceedings brought pursuant to section 89 of the Act, which provision is not concerned with demotion or promotion or punishment (Commissioner of Police v Lawrance [2011] NSWIRComm 109 at [173]). (j) Such other grounds and reasons as the Commission may allow. 60In the application for leave to appeal and appeal in Matter No IRC1243, the appeal is stated as an appeal against the following: 1. The finding by Harrison Deputy President that he could exercise the powers of the Department and impose a penalty of a caution on Officer Barnett (at [256]) a. At all; and/or b. In circumstances where Harrison Deputy President had found that Officer Barnett had been "overly severe and unsympathetic" (at [252]) but where this i. Was not one of the allegations of misconduct that had been pressed by the Department against Officer Barnett; and ii. Was not found to be misconduct by Harrison Deputy President. 2. The order that Officer Barnett be returned to employment as a Corrective Services Officer subject to a caution in respect of conduct (at [265(2)]). 61The PSA relied upon four grounds in support of that appeal as follows: His Honour Harrison DP erred: 1. In relying on findings relating to Officer Barnett's conduct when that conduct was not the subject of an allegation of misconduct by the Department employer. 2. In finding that the conduct, as found, warranted the imposition of any penalty including the penalty of a caution. 3. In finding that he had jurisdiction to exercise powers available to the Department, and in purporting to exercise those powers to caution Officer Barnett. 4. In not putting Officer Barnett on notice that he was considering imposing a penalty of a caution, and not receiving submissions on Officer Barnett's behalf in that regard. 62In the application for leave to appeal and appeal in Matter No IRC1244, the appeal is stated as an appeal against the following: 1. The findings that Officer Woelfl a. Failed to investigate cell 219; b. Failed to establish a crime scene; c. Failed to report the incident.([242]-[244]). 2. The finding that the failures identified above amounted to misconduct (at [245]). 3. The finding by Harrison DP that he could exercise the powers of the Department and impose a penalty by demoting Officer Woelfl to a lower grade (at [246]). 4. The order that Officer Woelfl be returned to employment as a Corrective Services Officer subject to demotion to a lower grade (at [265(3)]). 63The PSA relied upon four grounds in support of that appeal as follows: His Honour Harrison DP erred: 1. In finding that the factual circumstances involving Officer Woelfl and cell 219 involved acts of misconduct. 2. In finding that the misconduct, as found, warranted the imposition of any penalty, including the penalty of demotion. 3. In finding that he had jurisdiction to exercise powers available to the Department, and in purporting to exercise those powers to demote Officer Woelfl "to a lower grade". 4. In not putting Officer Woelfl on notice that he was considering imposing a penalty of demotion, and not receiving submissions on Officer Woelfl's behalf in that regard.

Submissions 64It should be noted, at the outset of this summary of submissions, that, during proceedings, the Full Bench was shown a DVD of CCTV footage which was in evidence before Harrison DP at first instance. Counsel made submissions as to various parts of that footage, in particular in relation to the issue of the assistance provided to Mr Klum in moving between cells 219 and 225. The question as to whether assistance was offered to Mr Klum was a factual matter in contention between the parties.

Submissions for the Department 65The submissions of the Department, received in writing and orally at the hearing of the matter on 15 February and 28 March 2013, were, in summary, as follows:

PSA Cross-Appeals 1)It must be accepted that his Honour misunderstood the nature of the Commission's powers in threatened dismissal proceedings by imposing conditions upon the return to work of Officers Woelfl and Barnett. His Honour had no such power. By s 89(7) of the IR Act, his Honour was restrained to determining the question of whether the termination of the officers was harsh, unjust or unreasonable having regard to their conduct (and the seriousness of any misconduct). 2)Whilst his Honour formed the view (as was, it must be accepted, open to him) that termination was not appropriate having regard to the misconduct of Officer Woelfl, it was accepted that his determination that the appropriate penalty for Officer Woelfl was demotion to a lower grade (at [246]) was a fundamental error. That order had not been sought on behalf of Officer Woelfl (and thus, could not be responded to by the Department) and his Honour did not broach with the parties that he was contemplating making such an order. That was a denial of procedural fairness sufficient to warrant appellate intervention. Furthermore, it is not apparent that his Honour made any determination as to the 'practicability' of returning Officer Woelfl to his original position; rather, it is clear his Honour was purporting to exercise his power to discipline Officer Woelfl: Commissioner of Police v Lawrence [2011] NSWIRComm 109. It was not open to his Honour to so order; in so ordering, his Honour strayed beyond the power invested in the Commission by s 89 of the IR Act; 3)For the same reason, his Honour erred in assuming that he had power under the IR Act to dispense disciplinary punishment to Officer Barnett in ordering he be cautioned; 4)The orders made by his Honour in respect of Officers Woelfl and Barnett were, therefore, made in error and warrant appellate intervention (such that, it is accepted, the cross-appeals in respect of those officers brought by the PSA should be upheld).

Leave to Appeal 5)It was not appropriate for his Honour to apply the test of 'serious and wilful misconduct' and it is a matter of public interest that the Commission apply the correct approach to the assessment of facts in unfair dismissal proceedings;

Appeal 6)The essential complaint made on appeal by the Department is that his Honour applied the wrong approach to the assessment of the facts before him. As a result, his Honour misassessed the seriousness of the misconduct; 7)The gravamen of the charges against the officers concerned, first, the fact that Mr Klum was placed in cell 225 rather than being transferred immediately by ambulance to hospital together with the fact that Mr Klum was left unsupervised or unattended for a period of time whilst he was being held in cell 225 when it was clear he required medical attention (which the officers would have been aware of had cell 219 been inspected), and, secondly, the fact that Mr Klum was not assisted by the officers to move between cells 219 and 225 (being the factual matter which was contested between the parties); 8)Those matters, when taken together, were sufficient to result in a conclusion that the dismissal of Officer Woelfl and the effective dismissal of Officers Barnett and Pearcey was neither harsh, unjust nor unreasonable (although it was conceded that the level of culpability of Officer Woelfl was higher); 9)At [34] of his decision, his Honour misdirected himself by misstating the relevant test to justify termination of employment, as opposed to summary dismissal, when he identified three specific considerations to inform an assessment of whether the officers' conduct amounted to "serious and wilful misconduct so as to warrant termination of employment...". The test which should have been applied was whether the decision to effectively terminate the employment of each of the officers, based on the seriousness of the misconduct, was harsh, unjust or unreasonable. The misunderstanding of the test affected his Honour's reasoning and, ultimately, the whole of the decision, and led him to misjudge the seriousness of the conduct of the officers. It therefore constitutes appealable error. Had the correct test been applied, the conduct of the officers would have been found to be sufficient to warrant dismissal; 10)As earlier noted, certain factual considerations were contested between the parties. That included the failure of the officers to transfer Mr Klum immediately to hospital; 11)His Honour rejected, at [202] of his decision, the notion that Mr Klum may have survived the incident had he been immediately transported to hospital. That suggestion did "not rise above speculation and [was] not supported by the medical evidence". There was, however, no 'medical evidence' to that effect before his Honour, nor was the 'medical evidence' referred to set out or discussed by his Honour in the decision (on the contrary, the Discharge Summary from Grafton Base Hospital completed by Dr Ashworth supported the proposition that earlier medical intervention may have resulted in a better outcome). His Honour's references to such evidence, and apparent reliance upon it, constituted appealable error; 12)It was ultimately conceded by Officer Woelfl that, had he been aware of the extent of Mr Klum's blood loss, he would have formed the opinion that Mr Klum required urgent medical attention at the hospital (that concession was not referred to in the decision at first instance - see submissions below in relation to Officer Woelfl); 13)Further, had the officers become aware of the extent of the blood loss and the seriousness of Mr Klum's injuries, it was submitted, they would not have taken the view, as they each did, that Mr Klum was not genuinely unwell as a result of the incident which had occurred in cell 219, but, rather, that he was "bunging it on" (so much was conceded in cross-examination at first instance by Officer Pearcey - see submissions below in relation to Officer Pearcey). The CCTV footage, which shows Mr Klum unable to get to his feet, casts doubt on the evidence of each officer in this respect; 14)In that respect, whilst any suggestion Mr Klum may have survived had he been transported to hospital immediately is purely speculative, his Honour failed to properly address the fact that the failure of the officers to call an ambulance deprived Mr Klum of the (albeit perhaps slim) chance to survive; 15)The CCTV footage and audio recordings were central to the allegations of misconduct and, in particular, the seriousness of the misconduct, in particular in relation to the issue of the assistance provided to Mr Klum to move between cells 219 and 225. The following submissions were made as to that footage: 16)It was agreed between the parties that Mr Klum was not assisted by the officers in moving between cells 219 and 225, but, rather, crawled across the floor; 17)His Honour concluded that, on the balance of probabilities (at [204]), "Mr Klum was offered assistance, which he declined". However, his Honour did not identify the evidence which led him to that conclusion (that omission represents appealable error); 18)Having regard to the CCTV footage, his Honour was in error in concluding that assistance had been offered to, and was declined by, Mr Klum. That footage shows Officer Barnett bending down and, briefly, his arm reaching out. In the next frame, Mr Klum is seen flinching then sitting on the floor "like a bag of spuds", without being held. It was submitted that that evidence must not necessarily result in the conclusion that Mr Klum was offered assistance and rejected it. The evidence is just as consistent with a conclusion that Mr Klum was picked up by Officer Barnett and dropped (although, it was conceded, no such 'drop' can be seen on the CCTV footage); 19)Further, the footage indicates that Mr Klum was in no condition to either accept or decline any offer of assistance that may have been given; 20)On the basis of the evidence, it should have been 'glaringly obvious' to his Honour that the officers engaged in serious and wilful misconduct by deliberately withholding assistance to Mr Klum. The failure of the officers to, at times, observe Mr Klum (which can be seen in the CCTV footage and which was referenced by Harrison DP at [205] and [206]) further indicates that the officers had no concern for Mr Klum and "couldn't care less" about his welfare; 21)His Honour was in error in finding that, in respect of each of the officers, at [239], Mr Klum "was not made to crawl, he was allowed to crawl" and that that the decision to allow Mr Klum to proceed on his hands and knees after he refused assistance, did not amount to serious and wilful misconduct sufficient to justify termination of employment. That is because the CCTV footage does not show that assistance from the officers was forthcoming and demonstrates that Mr Klum made futile attempts to get to his feet (which attempts were also witnessed by Officer Woelfl); 22)His Honour found, at [210], that "had further assistance been forced upon [Mr Klum] at the time, further resistance by him would have made circumstances worse". No such submission was made by counsel for the PSA and the Department was denied an opportunity to put submissions on that matter (and, therefore, denied procedural fairness); 23)Further, his Honour was in error in concluding, at [207], that, in reliance on the medical report of Dr Petroff, Mr Klum had a propensity to act erratically (the report does not say this);

Submissions on Appeal re Officer Woelfl 24)His Honour omitted reference to the following parts of Officer Woelfl's 11 June 2010 statement to investigators, which evidence went to his culpability, the credibility of his subsequent statements that he believed the incident in cell 219 was minor, and only involved a push, and the issue of the failure to observe the blood in the cell and respond appropriately; 25)Officer Woelfl's statement that "Yeah, there was some trauma to that face, like some... some, either he's hit it against the, a wall, floor... someone's punched him, I'm not, you know... an expert at... any of that stuff. Yeah". His Honour also did not refer to Officer Woelfl's claim that the transcript of interview in which that quote appears is inaccurate, and what he really said was "It is not like someone has punched him"; 26)His Honour made no reference to Officer Woelfl's retraction of that statement after the audio recording of his interview was played in court which showed that the transcript had accurately recorded what he told investigators; 27)His Honour made no reference to the concession of Officer Woelfl during cross-examination at first instance that "If it was a real major blood loss I probably would have called an ambulance", which concession goes to the issue of the officers' failure to investigate what occurred in cell 219, failure to observe the significant amount of blood loss suffered by Mr Klum and failure to respond appropriately. Rather, his Honour noted 107Officer Woelfl maintained that had he inspected cell 219 further and observed the amount of blood loss he would have taken Mr Klum directly to observation, but he would not have called an ambulance, he would have called the nurse to assess Mr Klum, as he did; 28)The finding of his Honour, at [231], that the allegation of gross negligence was "not substantiated on the evidence" was inconsistent with the observations and findings of his Honour at [218] to [226], namely, that Officer Woelfl should have inspected cell 219 and established a crime scene given the presence of blood on Mr Klum and the version of events provided by Mr Johnson;

Submissions on Appeal re Officers Pearcey and Barnett 29)His Honour failed to refer to evidence going to the critical issue as to why, given Officer Pearcey thought Mr Klum's condition may have been the result of being punched with a fist, Officer Pearcey did not assist Mr Klum to move from cells 219 to 225. Namely, Officer Pearcey's statement (in his statement to investigators on 11 June 2010), that "Yeah, so I mean, you know, the guy's saying he's got a headache, he's got a, you know, a blood underneath his nose... and you know, he, it, is it, the word push was used, the thought track to myself were probably a bit more than a push, maybe it was a fist"; 30)His Honour failed to refer to the concession of Officer Pearcey in cross-examination at first instance that, had he examined cell 219 at the time, he would have been less likely to think Mr Klum was "bunging it on" and that "[t]here might have been quite a bit more than what could have gone on"; 31)His Honour's findings, at [248] to [250] re Officer Barnett and [258] to [260] re Officer Pearcey, that Officers Barnett and Pearcey had no capacity to instigate an inspection of cell 219 of their own volition was contrary to the evidence of Officers Barnett and Pearcey themselves to the effect that there was nothing to prevent them from turning on the cell light. In cross-examination at first instance, Officer Barnett stated that he did not turn the cell light on, despite being aware that Mr Klum had been bleeding, because "I had no reason to turn the cell light on". Officer Pearcey, in cross-examination, noted that "[c]ould have added a bit more light if you turned the light on"; 32)Harrison DP was in error in making no finding that Officer Barnett had engaged in any of the misconduct alleged against him given his reference (at [251]) to the "severe criticism" by the Department of the way in which Officer Barnett spoke to Mr Klum when he and the other officers arrived at cell 225 to transfer Mr Klum to the observation cell and his finding (at [252]) that Officer Barnett had been "overly severe and unsympathetic in this exchange"; and 33)It was not open, on the evidence, for his Honour to find that Officer Pearcey did not engage in misconduct, given the CCTV footage showed Officer Pearcey with his arms folded, standing impassively looking at Mr Klum for some time without acting.

Submissions for the PSA 66The submissions of the PSA, received in writing and orally were, in summary, as follows:

Leave to Appeal (1)In relation to Matter Nos IRC 1243 and 1244 of 2012, the imposition of alternative penalties upon Officers Woelfl and Barnett by Harrison DP raises important questions of law and principle in relation to the limits of the jurisdiction of the Commission in threatened dismissal cases; (2)For the same reason, leave ought to be granted to the Department in relation to grounds of appeal (c), (d), (e) and (i) to the Department's appeals in Matter Nos IRC 1226, 1227 and 1228 of 2012. However, leave ought not be granted for the balance of the Department's appeals. Appeal grounds (a) and (b) do not constitute errors of principle or law warranting intervention on appeal. Appeal grounds (f), (g) and (h) wrongly assume that s 89(2) applies to threatened dismissal applications and, in the alternative, wrongly assume that the order made by his Honour would result in Officer Woelfl being placed in a position different to that held by him (in any event, if leave is granted in relation to questions (e) and (i), that matter will be adequately addressed); (3)As his Honour correctly concluded that the Department ought to be restrained from dismissing each of the officers, the Full Bench should grant leave only to the extent necessary to correct the error of imposing disciplinary sanctions and set aside that part of the orders that purport to impose those conditions on the officers' return to work. To the extent, if any, that leave is granted to deal with the Department's other grounds of appeal, the appeal ought to be dismissed;

PSA Cross-Appeals (4)The PSA does not press paragraphs 1 and 2 of the appeal in Matter No IRC 1244 of 2012 (re Officer Woelfl); (5)The jurisdiction exercised by the Commission in an application in relation to a threatened dismissal is limited to 1) the making of an order restraining the dismissal (s 89(7)); 2) the making of any ancillary orders pursuant to s 89(8) necessary or incidental to, or for the proper and effectual performance of, the primary order (Western Sydney Area Health Service v Australian Salaried Medical Officers' Federation (NSW) [2004] NSWIRComm 246 at [43]; (2004) 138 IR 203 at (212); (6)Section 89(7) did not extend jurisdiction to the Commission to impose conditions of the sort ordered by Harrison DP (in regard to Officers Woelfl and Barnett) on orders permanently restraining dismissal (namely, the imposition of a disciplinary penalty). Furthermore, neither party were given notice his Honour was considering imposing such conditions and were, therefore, denied the opportunity to make submissions in that respect; (7)Given the Department's acceptance that the placing of conditions upon the return to work of Officers Woelfl and Barnett was outside the power of Harrison DP, the PSA's cross-appeals should be upheld;

The Department's Appeals (8)The appeals brought by the Department are directed towards an error by his Honour in assessing or applying the test of serious misconduct. The Department has not demonstrated how his Honour erred in this respect; (9)The PSA conceded that Harrison DP incorrectly used the phrase "serious and wilful misconduct" on a number of occasions in the decision. However, it was submitted, that did not lead to any fundamental error in his consideration of whether or not the threatened dismissals were unfair. So much can be demonstrated as follows: At [34] of the first instance decision, his Honour noted: "The issues reduce to three specific considerations to inform an assessment of whether the Officers' conduct amounted to serious and wilful misconduct so as to warrant termination of employment...". Those three considerations dealt with moving Mr Klum between cells 219 and 225, the investigation of cell 219 and the attitude to Mr Klum when moving him from cell 225. In relation to the first consideration, his Honour found no misconduct; thus, even if the wrong test was applied, any such error would have no effect on the final decision. In relation to the second consideration, his Honour made an adverse finding against Officer Woelfl (at [245]), but noted that "[t]his misconduct is not ... serious and wilful misconduct warranting termination of employment"; it is trite that misconduct, other than serious and wilful misconduct, can justify termination of employment. If his Honour limited his examination only to serious and wilful misconduct, there may have been appealable error. However, it is apparent (from the first sentence of [245] that the "[f]ailure to investigate, establish a crime scene and report, amounts to misconduct which warrants sanction.") that his Honour properly considered the nature of the misconduct and the appropriate sanction (essentially, that the misconduct found did not warrant termination of employment); (10)This is supported by a reading of the decision in whole, from which it is apparent that Harrison DP closely and appropriately considered whether misconduct occurred, the seriousness of the misconduct and the appropriate sanction. It cannot be concluded that Harrison DP incorrectly approached the entire proceedings on the basis that the Department had to prove serious and wilful misconduct to counter the claim that the threatened dismissals were unfair; (11)Harrison DP found none of the allegations against Officers Barnett or Pearcey made out (see [248] to [249] and [259] to [260] of the decision at first instance), therefore, even if he applied the wrong test, as no misconduct was found there could be no basis for termination of employment; (12)The evidence pointed to by the Department in submissions in respect of each of the officers is simply evidence the Department thinks should have been accorded more weight by Harrison DP. The evidence pointed to has no connection to the question of whether or not Harrison DP applied the wrong test and reflects no error capable of being the subject of appeal (or the grant of leave) having regard to House v R (1936) 55 CLR 499; (13)The Department cannot establish that the failure of Harrison DP to mention specific aspect of the evidence, which was comprehensive, led to a failure in the decision-making process to justify intervention on appeal; (14)Even if any of the findings of Harrison DP were not supported by the evidence, as submitted by the Department, the Department has not established that these contributed to any error in the ultimate findings. For example, the Department's submission criticising the lack of medical evidence is incorrect, given all his Honour said in the decision was that a submission put by the Department below was not supported by medical evidence. This is not erroneous - there was no medical evidence to support the Department's submission that the outcome for Mr Klum could have been altered; (15)As identified by the Department in submissions, several factual matters were in contention between the parties; (16)Rather than demonstrate the wilful misconduct of the officers, the CCTV footage was demonstrative of the fact that the officers were faced with an unusual and confusing situation. The footage shows Mr Klum going down and lying on the floor, then crawling, then walking. That footage demonstrates that the officers were faced with a confusing situation and, in the circumstances, they did the best they could with what they could observe of Mr Klum; (17)The finding by Harrison DP (at [232] to [233]) that Mr Klum was offered, and rejected, assistance was consistent with the evidence of the CCTV footage and the officers' own evidence: His Honour reached that conclusion based on his consideration of the CCTV footage and the Department's own material, namely, a CCTV recording analysis (set out at [41] of his Honour's decision). That analysis notes that, at 2.28am: "Inmate appears to collapse to ground as he crawls from cell, 1 x Officer bends down towards inmate and appears to reach out to inmate then stands again". So much is also consistent with the evidence of the officers; (18)At paragraph 48 of Officer Woelfl's statement dated 31 May 2012, he noted that Mr Klum "... shrugged off Officer Barnett's assistance and crawled across the floor to cell 225"; (19)At paragraph 47 of Officer Barnett's statement dated 5 June 2012, he stated: "After Mr Klum came out of cell 219 and was sitting on the floor I bent down to offer him assistance. Mr Klum shrugged off my assistance, which I took as an indication that he did not want to be assisted. Officer Woelfl then advised me to let him go on his own. ..."; (20)At paragraph 41 of Officer Pearcey's statement dated 21 June 2012, he stated that "... Officer Barnett bent down to offer him assistance. I did not recall this until I saw the CCTV footage in the IRC. Mr Klum shrugged him off and I formed the impression that he did not want to be touched. I recall that after Mr Klum indicated he did not want to be touched Officer Woelfl said "leave him alone" or words that that effect ...";

Submissions on Appeal re Officer Woelfl (21)The Department's appeal grounds (f) and (g), in relation to Officer Woelfl, do not arise, given an employee making an application for relief from threatened dismissal remains employed and, therefore, cannot be reinstated or re-employed; (22)His Honour at first instance was encouraged by the appellant to deal with the charges against the officers globally. He treated the charges as such in his decision; (23)At [230] of his decision, Harrison DP identified the most serious charge against Officer Woelfl as that alleging he was grossly negligent in the performance of his duties due to the fact that he did not assist Mr Klum to move between cells 219 and 225 and because he left Mr Klum unattended for a period of eight minutes in cell 225 when he clearly needed urgent medical attention. His Honour found that allegation to be unsubstantiated on the evidence (namely, CCTV footage which showed Mr Klum had been offered, but turned down, assistance by Officer Barnett (at [232] to [233]) and that the decision to move Mr Klum to cell 225 was consistent with the fact that Mr Klum was fully dressed (as opposed to Mr Johnson) and indicated he wanted to leave the cell). (Ultimately, his Honour concluded that Officer Woelfl was responsible for errors of judgment, but that that misjudgement did not amount to misconduct warranting termination of employment.); (24)The Full Bench should proceed on the same basis, that is, without treating the charges against Officer Woelfl separately, given that the Department's appeal focussed only the finding made by Harrison DP and not the approach he took in that respect; (25)The submissions of the Department do not identify how it was not available to Harrison DP to conclude that, having found that Officer Woelfl engaged in misconduct, the misconduct did not warrant termination of employment; (26)There is no appealable error in Harrison DP omitting the specific considerations identified by the Department in submissions in relation to Officer Woelfl;

Submissions on Appeal re Officers Pearcey and Barnett (27)His Honour made no findings that Officer Barnett engaged in any of the misconduct alleged against him by the Department. Despite his finding (at [252]) that the tone of voice used by Officer Barnett towards Mr Klum, at the time when Mr Klum was being moved from cell 225 to the observation cell, was "overly severe and unsympathetic", that matter had not been part of the formal charges against him; (28)His Honour found none of the allegations against Officers Pearcey and Barnett made out. It follows that, even if he applied the wrong test, there could be no basis for termination of employment given no misconduct was found.

Consideration 67The Department correctly contended, in my view, that the test to be applied under s 89(7), in the circumstances of these proceedings, was whether the threat to terminate or, as submitted by Mr Murphy, whether the decision to effectively terminate each of the officers was harsh, unreasonable or unjust in the light of the seriousness of any misconduct engaged in by the officers. Section 89(7) provides for a remedy within the purview of Pt 6 of Ch 2 of the IR Act and requires, inter alia, for the grant of relief, a finding of the character found under s 84(1) as to an unfair dismissal. 68The adjudication of unfair dismissal matters does not require a decision as to whether the decision or threat to dismiss was lawful (or may have been lawful), per se, but whether any decision to dismiss was, in the circumstances, harsh, unreasonable or unjust (see NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 at [45]). So, too, the exercise of power under s 89(7) does not ultimately concern whether a decision to threaten dismissal was lawful, or any decision which may result in dismissal may be lawful, but whether the threatened dismissal met that triparte test. 69Nonetheless, the question as to whether the officers had engaged in misconduct, and its character and severity, were plainly relevant to the consideration as to whether the statutory criteria in s 84 were met: Casari v Sydney South West Area Health Service [2009] NSWIRComm 103 at [57]; Hargreaves at [45]; Commissioner of Police v Lawrance [2011] NSWIRComm 109 at [82] to [83] and [89] and Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at (74) and (84) and, hence, whether orders should be made under s 89(7). 70Such inquiries do not, however, require a consideration of whether the officers had engaged or may have engaged in 'serious and wilful misconduct', even if summary dismissals were under contemplation (which was not the case here): Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 at [89] to [93]. 71The criteria adopted by Harrison DP for the assessment of the application by the officers below demonstrated a correct understanding of these principles, save to the extent his Honour (at [34] of his decision) erected, as a criteria for his determination under s 89(7), the test of whether Officers Barnett and Woelfl had engaged in serious and wilful misconduct. This constituted error, and the issues raised by it constitute a proper basis for the grant of leave to appeal in Departmental appeals concerning Officers Barnett and Woelfl (Matter Nos IRC 1226 and 1228 of 2012). When considered in the circumstances of these matters, that conclusion should result in the appeal being upheld with respect to Officer Woelfl (as discussed later in this decision) but, for reasons I will now give, not the Departmental appeal concerning Officer Barnett (save as to the technical ground concerning conditions imposed in the orders made by Harrison DP concerning Officer Barnett).

Officer Barnett 72Ms Lowson submitted that, if, as Harrison DP found, none of the allegations against Officer Barnett were made out then, even in the event that his Honour applied the wrong test, there would be no basis for a finding of "fundamental error". I consider Ms Lowson's submission to be correct, in that respect, if it is understood as being a contention that the decision below could be confirmed, notwithstanding error of the kind described, if there was no basis for interfering with the finding that Officer Barnett had not engaged in misconduct. 73Given that the Full Bench concluded there was no proper basis to interfere with the finding at first instance in that respect, the procedure identified at the outset of this decision was adopted, namely, that Ms Lowson was not called upon in relation to the Department's appeal concerning Officer Barnett. As it was open, in my view, for Harrison DP to find that the charges of misconduct were not made out with respect to Officer Barnett, that Departmental appeal may be dismissed, notwithstanding his error as to the applicable test or standard. I shall state my reasons for that conclusion below but pause briefly to establish one further relevant principle. 74In cases concerning disciplinary action arising from the laying of formal charges of misconduct accompanied by an investigation and formal findings as to whether an officer has been found guilty, a primary matter for consideration will be whether the officer was guilty of the misconduct as charged: Re Public Service Association and Professional Officers' Amalgamated Union of New South Wales v Macquarie Generation [2004] NSWIRComm 11 at [74] and [75] and Director General, NSW Department of Education and Training v Sud [2010] NSWIRComm 147 at [41]. Thus, the case concerning Officer Barnett primarily concerned two discrete sets of charges set out in [49] of this decision. 75As to the first charge concerning a failure to assist Mr Klum, I accept the submissions of the PSA that officer Barnett offered assistance to Mr Klum which was rejected by him. The evidence referred to in the PSA's submissions (earlier identified in this decision) amply support that conclusion. Contrary to the Department's submissions, I do not consider the CCTV footage permits any contrary view being formed. It is irrelevant, on the charges brought, whether Mr Klum was, as the Department put it, not in a position to accept or decline any offer of assistance (and there is insufficient evidence to warrant such a conclusion being drawn). 76I also consider it was open to Harrison DP to find, on the evidence of the officers and the medical evidence in the proceedings, that it would have been unwise for Officer Barnett to press Mr Klum for assistance after his refusal. 77Even assuming some further assistance may have been offered during the short period in which Mr Klum crawled to cell 225, the conclusion I have reached above must result in a finding that Officer Barnett was not guilty of the charge that he was "grossly negligent" in the performance of his duties in charges specified in para [49] of this judgment. It might be noted, in this respect, that the Department's investigator, in the case of Officer Barnett, had declined to support the finding of gross misconduct, notwithstanding that he had found assistance had not, in fact, been offered. 78As to the balance of the charges, I consider that it was open, on the evidence, for Harrison DP to find that the responsibility for such decisions fell to and were made by Officer Woelfl. The fact that Officer Barnett may have turned on the light of cell 219 of his own volution did not mean that his failure to do so constituted misconduct in circumstances where the management of the situation was governed by Officer Woelfl and not such, in my view, as would have demanded Officer Barnett undertook his own inquiries independent of or contrary to the approach of his supervisor. Officer Barnett's compliance with such directions could not, in the circumstances, properly lead to a conclusion that his actions constituted misconduct. I do not consider the evidence was that, upon the available information as to Mr Klum's physical condition at the time of the incident, Officer Barnett displayed a deliberate disregard for his welfare. The evidence disclosed that Mr Klum presented to the cell door with a small abrasion on his right elbow. No account was, at the time, given by Mr Johnson (the other inmate in cell 219) of an altercation. I accept the submission of the PSA that, to some extent, the situation confronting Officer Barnett, on the face of it (that is, without further investigation), was unusual and confusing. 79Finally, I agree with the submissions of the parties that the Deputy President did not have the power to impose conditions upon the orders made by him under s 89(7) and that the jurisdiction exercised by the Commission was limited to the making of an order restraining any dismissal and the making of ancillary orders necessary or incidental to the proper and efficient performance of the orders. Leave to appeal should be granted in both the Departmental appeal and the cross-appeal concerning Officer Barnett (in Matter No IRC 1243 of 2012) in this respect. Both appeals should be upheld in this respect. However, for reasons appearing above, I will otherwise dismiss the Department's appeal. The cross-appeal concerning Officer Barnett will be dismissed, save as to the issue of conditions imposed in the orders made by Harrison DP. By this decision, I consider the remaining grounds to be spent or unnecessary to decide. However, for reasons I shall now provide, I do not propose to adopt that approach with respect to the cross-appeal for Officer Woelfl.

Officer Woelfl 80The charges brought against Officer Woelfl differed from those brought against Officers Barnett and Pearcey. So, too, did the issues surrounding this matter. It was upon this matter the Full Bench reserved its decision. 81From the original allegations, the Department found three sets of charges made out against officer Woelfl (see [42] above). The Department also found the further allegations were established. In substance, Harrison DP found the charges concerning the investigation and establishment of and reporting upon a crime scene were made out and constituted misconduct (the PSA challenged these findings in the cross-appeal but at the hearing of the matter discontinued those grounds). His Honour rejected the charges concerning movement between cells 219 and 225 and obtaining medical assistance. 82I do not accept the submissions of the PSA to the effect that the test of 'serious and wilful misconduct' did not govern his Honour's disposition of Officer Woelfl's application. His Honour drew a distinction between 'misconduct' and 'wilful and serious misconduct' (in [245] of his decision) and applied the latter test in adjudicating upon Officer Woelfl's application to restrain his dismissal. 83The PSA contended that, in truth, his Honour concentrated upon whether the officer had engaged in misconduct in [245] of his decision because it was this expression he employed in the first sentence of that paragraph (in which he referred to Officer Woelfl's failures). However, this submission cannot be accepted. The Deputy President expressly found that the conduct of Officer Woelfl should not warrant dismissal because, even though it was considered 'misconduct', it did not satisfy the higher test of 'serious and wilful misconduct'. The conclusion at [245] of the decision at first instance was central to Deputy President Harrison's adjudication with respect to the application made on behalf of Officer Woelfl. It was attended by appealable error in two respects. First, whilst it was relevant for his Honour to consider whether Officer Woelfl had engaged in misconduct, for the purposes of considering the application brought under s 89(7), the erection of a test, in this respect, as to whether the conduct constituted serious and wilful misconduct was erroneous (for reasons earlier discussed). Secondly, the distinction drawn by the Deputy President between 'misconduct' and 'serious and wilful misconduct' was the fulcrum upon which his Honour made orders restoring Officer Woelfl's employment to a demoted position, a decision which was beyond power. 84What the Deputy President was required to do was to evaluate whether, notwithstanding the misconduct found, he may, nonetheless, find that the threatened dismissal of Officer Woelfl was harsh, unreasonable or unjust. I do not consider the Deputy President properly made that assessment. Whilst he did identify the unproven misconduct concerning the movement of Mr Klum and his medical assessment were the more serious charges, he did not evaluate the gravity of the proven misconduct or why, given its significance, a finding activating relief under s 89(7) should be made. This is because he was misled, in the exercise of his power, between the false dichotomy (for the purposes of his adjudication) of 'misconduct' and 'serious and wilful misconduct'. 85This constitutes, in my view, a firm basis upon which leave may be granted to appeal and the appeal from the decision of Harrison DP upheld. 86I do not consider there is any proper basis to, nonetheless, reach a conclusion that orders should be made in favour of Officer Woelfl under s 89(7). After close examination of the DVD of CCTV footage and the evidence in the proceedings as to Officer Woelfl's conduct, I have come to that view for three reasons: 1)The misconduct of Officer Woelfl was serious on its face; 2)The officer held a senior position in the Department and his misjudgments were fundamental to the discharge of his duties; 3)Whilst I agree that it is mere speculation that a different course of conduct by Officer Woelfl may have improved Mr Klum's prospects for survival, it is clear that proper adherence to procedure would have been more consistent with the duty owed by the Department to Mr Klum including ensuring proper and (in this case) more urgent medical treatment. 87As to the cross-appeal concerning Officer Woelfl, whilst the grounds concerning the imposition of conditions were technically made out, given the conclusion I have reached in relation to the Department's appeal, I propose to grant leave to appeal but dismiss the appeal.

Orders 88I would make the following orders: 1.In Matter No IRC 1226 of 2012: a)Leave to appeal is granted; b)The appeal is upheld; c)Order (3) in paragraph [265] of Pearcy v Department of Attorney General and Justice - Corrective Services [2012] NSWIRComm 132 is set aside. 2.In Matter No IRC 1227 of 2012, leave is granted to discontinue the appeal. 3.In Matter No IRC 1228 of 2012: a)Leave to appeal is granted; b)The appeal is upheld only with respect to the conditions imposed by the order in Order (2) in paragraph [265] of the decision in Pearcy v Department of Attorney General and Justice - Corrective Services [2012] NSWIRComm 132, but in all other respects the appeal is dismissed; c)Order (2) in paragraph [265] of the decision in Pearcy v Department of Attorney General and Justice - Corrective Services [2012] NSWIRComm 132 is varied by deleting the words "subject to a caution in respect to conduct". 4.In Matter No IRC 1243 of 2012: a)Leave to appeal is granted; b)The appeal is upheld only with respect to the conditions imposed by the order in Order (2) in paragraph [265] of the decision in Pearcy v Department of Attorney General and Justice - Corrective Services [2012] NSWIRComm 132, but in all other respects the appeal is dismissed; c)Order (2) in paragraph [265] of the decision in Pearcy v Department of Attorney General and Justice - Corrective Services [2012] NSWIRComm 132 is varied by deleting the words "subject to a caution in respect to conduct". 5.In Matter No IRC 1244 of 2012: a)Leave to appeal is granted; b)The appeal is dismissed. 6.The orders made by Boland J in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales on behalf of Pearcy, Barnett and Woelfl v Department of Attorney General and Justice - Corrective Services NSW [2012] NSWIRComm 33 are dissolved.

DECISION OF HAYLEN J 89I have had the advantage of reading in draft form the reasons for decision prepared by the Vice President and supported by Staff J. While I support the orders proposed in relation to Officers Pearcey and Barnett, I am unable to agree with the orders proposed regarding Officer Woelfl. For reasons that are briefly developed below (having regard to the detailed background appearing in the decision of the Vice President) I would dismiss the appeal against the order returning Officer Woelfl to employment and uphold the appeal in relation to the order demoting Officer Woelfl. 90The starting point for analysing the Deputy President's decision is the appellant's submission that, at first instance, a wrong test was applied and that the Deputy President focused on whether the alleged conduct was "serious and wilful misconduct", whereas the appropriate test was whether or not the decision to terminate the Officer's employment was harsh, unreasonable or unjust. It is to be remembered that Officer Woelfl was charged with gross misconduct. The particulars of the charge are adequately set out in the decision of the Vice President. 91Butterworths Australian Legal Dictionary defines "misconduct" as: "wrongful, improper or unlawful conduct, motivated by pre-mediated or intentional purpose or by obstinate indifference to the consequences of one's acts. This conduct may involve either gross negligence or a deliberate departure from accepted standards so as to portray indifference and an abuse of privileges (Pillai v Messiter (No 2) (1989) 16 NSWLR 197). 92In Re Dispute - dismissal of union delegates at Homebush Abattoir (1966) AR 371, Cook J observed that the question of whether the conduct of an employee amounted to misconduct would generally depend upon whether the act complained of could properly be regarded as deliberate or wilful, or of such a nature as to strike at the essential elements in the contract of service. (at 374). Prior to making this statement, his Honour considered the law applicable to the question of misconduct justifying instant dismissal, observing that the word "misconduct" in awards should be taken to bear the meaning which has been ascribed to it by decisions in cases dealing with wrongful dismissal of persons employed under ordinary contracts of employment. He noted that subject had been discussed in many cases and in particular, he relied upon Laws v London Chronicle (Indictor Newspapers) Ltd (1959) 2 All E. R. 285. 93More recently, the authors of Law of Employment, 5th ed (2002), Macken, O'Grady, Sappideen, Warburton, Lawbook Co at 201 state: Misconduct is the usual (but not exclusive) ground for summary dismissal. Misconduct connotes positive and intentional wrongdoing whereas other grounds for dismissal, such as incompetence and neglect, do not involve intentional misconduct. 94The Deputy President has considerable experience in this jurisdiction. On a fair reading of his decision, it seems likely that the Deputy President was considering the seriousness of the conduct alleged as established on the evidence, in applying the requirements of s 84, namely, whether dismissal for the alleged conduct was harsh, unreasonable or unjust. This approach was unexceptional. At [34], the Deputy President suggested that there were three specific considerations in forming an assessment of whether the Officer's conduct amounted to serious and wilful misconduct "so as to warrant termination of employment or whether such termination would be harsh, unreasonable and unjust." In the context of a charge of gross misconduct, it appears that the Deputy President has, in effect, done no more than to gauge the seriousness of the conduct for the purposes of determining whether the termination was harsh, unreasonable or unjust. 95In submissions for the appellant, counsel did not clearly identify the manner in which the so-called test was impermissible: rather, it was ultimately suggested that serious and wilful misconduct was utilised as the exclusive test rather than the assessment of whether the termination was harsh, unreasonable or unjust as required by s 84. Whatever the Deputy President did, he certainly did not do what the appellant has suggested in this respect. 96During argument, the approach of Cook J in the Homebush Abattoir case was drawn to the attention of counsel for the appellant (although the transcript is a poor record of the exchange): at that point counsel stated that he wished to make it clear that their appeal did not depend on the argument of the application of the "wrong test" and that the appellant's proposition was straightforward - "Misconduct is sufficient seriousness to warrant dismissal. Whether his Honour misdirected himself is to what extent is peripheral to that decision." Again, the transcript appears to muddle the exchange but I take that to be a concession from counsel that the straightforward proposition was that misconduct had been established of sufficient seriousness as to warrant dismissal and whether or not his Honour misdirected himself as to the correct test it was, nevertheless, peripheral to the appeal: the seriousness of the misconduct, therefore, was the central issue in the appellant's case. It is significant that it was the appellant's argument that the conduct was so serious that it warranted dismissal and therefore, termination could not be set aside for being harsh, unreasonable or unjust. This approach was articulated below and framed the Deputy President's consideration of the contending arguments. 97On an overall consideration of his reasons, it can be concluded that the Deputy President did no more than look to well-established standards of misconduct to gauge its seriousness in this case in ultimately arriving at an assessment as to whether the termination was harsh, unreasonable or unjust: if so, there is, in no relevant sense, an application of an irrelevant test or consideration or the application of a wrong principle, nor is there an asking of a wrong question. The Deputy President was required to consider the seriousness of the impugned conduct and to assess whether it was deliberate (or wilful) before applying the s 84 test. 98Even assuming there was some error in the Deputy President's approach by taking into consideration whether the conduct was serious and wilful, that conclusion simply leaves the order for reinstatement open to fresh assessment on appeal. There are a number of considerations that would support a conclusion that the termination was, nevertheless, harsh or unjust. Those considerations are raised in the following paragraphs. 99Firstly, it should be stated that the whole of the response by Corrective Services to this incident has been driven by the benefit of hindsight. Undoubtedly, Corrective Services were embarrassed that an inmate who had suffered injuries subsequently died but that does not mean that any Prison Officer involved in handling that prisoner is guilty of gross misconduct. The extent of the "benefit of hindsight" approach is demonstrated by the manner in which the charges are framed concerning the failure to establish a crime scene and the crime scene procedures that follow. The failure to establish a crime scene must follow from there being available evidence to suggest that a crime has been committed. The charge had to be framed, therefore, as gross negligence in not further investigating the matter, including searching the cell, thus leading to a reasonable apprehension that an unlawful assault had occurred requiring the establishment of a crime scene. Indeed, the charge proceeds on a basis that this was a crime scene rather than proceeding from the position that there was sufficient evidence warranting the creation of a crime scene. 100Immediately, a serious question arises: what was the crime and who appears to have committed it? The next question is, what flows from the failure to establish a crime scene? Undoubtedly, one of the purposes of establishing a crime scene is to preserve the evidence - it would usually involve removing inmates from the cell. Ultimately, the real complaint of Corrective Services is not that a crime scene was not established but rather, that the cell was not inspected in light of the fact that Klum had slumped to the floor and had some blood on his face and spoke of spinning out. The allegation of a failure to establish a crime scene gives the impression of a serious omission but in this case lacks substance. 101On the evidence, it is difficult to ascertain what crime the officers should have been aware of. The other prisoner in the cell told them that Klum had started to act strangely and had attempted to choke Johnson, and he had pushed Klum away - Klum had fallen to the floor. Klum said nothing about what had happened to him at this time, making no allegation of assault by Johnson to the officers who were removing him from the cell for the purposes of medical treatment. As will be later canvassed, there was nothing about the situation then that suggested that Klum had been badly beaten in his cell by Johnson. Indeed, it does not appear to be any part of the Department's case that in fact any charges were laid against Johnson or that he was found guilty of any serious assault. The Police investigation apparently centered only upon the activities of the Prison Officers and no action was taken. 102The central question, therefore, was whether the officers and in particular, Officer Woelfl, were grossly negligent in not being alive to the possibility that a serious assault had occurred in the cell: it was submitted that the possibility of a serious assault was sufficiently obvious from signs of blood on Klum and the fact that he could not walk. The decision-maker, Mr Schipp, in his evidence asked why the officers were not more thorough in investigating what had occurred in the cell that caused Klum to seek assistance. He pointed out that photographs taken the next day showed that, had they entered the cell or taken steps to establish the seriousness of the incident, for example, by turning on the light, "Then a reasonable person may have concluded that Klum was more seriously injured and acted with greater care." Mr Schipp concluded that the officers' failure amounted to a failure of their duty of care as a Correctional Officer and had demonstrated such a lack of care that they could no longer discharge their responsibilities as Prison Officers. Mr Schipp did not have any experience as a Prisoner Officer and further conceded that there were no specific procedures concerning crime scene management. He accepted that not all assaults were reported to the Police, nor were crime scenes established in every case. 103What were the officers faced with when they went to the cell after Klum had raised the "knock-up" call? When asked about why he had made the call, Klum said that he was sick and when asked what was wrong he said he was bleeding from his mouth and nose, spinning out and could not get up. The evidence establishes the following:

• at knock-up, there was a only a small amount of blood on Klum;
• the injuries appeared to be superficial and did not suggest a serious assault;
• it appears that Klum had the presence of mind to wash himself and to put his jumper on;
• Klum did not disclose at that point that he had been the subject of an assault, nor that he had been bleeding profusely;
• Klum did not contest what was said by Johnson, nor did he ask to be kept away from Johnson;
• the nurse's observations made sometime after Klum was removed from the cell reported his injuries as a small laceration to the right eyebrow;
• it was only sometime after, whilst in observation and before the ambulance arrived, that Klum indicated that he wished the matter reported to the Police;
• in the observation area, Klum was considered to be coherent and was able to walk "unaided" and participate in conversation with officers taking reports as well as with ambulance staff;
• Klum participated in an incident report during which he required a police investigation into the events of the night, but made no specific complaint about Correctional Officers. 104In the light of these matters, the following conclusions were reached:
• the Deputy President's consideration of the medical records indicated that they recorded only a minor incident based on the observations recorded by the nurse;.
• the Deputy President formed the view that the charges in respect of reporting were substantially based on the view that the event was reported as a minor event when it should have been given significant event status;
• from the evidence, the Deputy President found that Klum had functional capacity referring to the fact that the prisoner had put on his jumper for the move to the other cell. That conclusion is also supported by the fact that he had washed himself and therefore potentially decreased the amount of blood on him that was visible, or able to be seen by the officers when they came to the cell;
• the Deputy President concluded that Woelfl was faced with a difficult set of circumstances and made judgements, as he was required to do, which were supportable. That conclusion was made specifically in relation to moving Klum to the observation cell and the assistance Klum was finally given when he was prepared to accept it when moving down the stairwell to the observation area. 105The officers gave evidence of a reluctance to enter a cell, especially at night on a knock-up call. Woelfl and the other officers had been subjected to assaults during their career and it is not unreasonable that they would be cautious, if not suspicious, of a knock-up call in the early hours of the morning. The Deputy President accepted that Klum had rejected an offer of assistance from another officer when he crawled across the floor to a nearby cell after being removed from the cell occupied by Johnson and himself. A decision was promptly made to call the nurse but there was no nurse on duty (due to a management decision) and the nurse had to be called in. Apparently, only the nurse could order an ambulance. 106There were then the personal matters to be considered concerning Officer Woelfl. They included:

DECISION OF STAFF J 108I have had the benefit of reading the decisions prepared by the Vice-President and Haylen J in respect of these matters. I agree with the decision and orders proposed by the Vice-President, but wish to add some additional observations which appear below. 109Harrison DP, at [34] as noted in the Vice-President's decision, identified three considerations which he considered informed an assessment of "whether the Officers' conduct amounted to serious and wilful misconduct so as to warrant termination of employment; or whether such termination would be harsh, unreasonable and unjust." That paragraph appears to reflect an understanding on the part of the Deputy President that he was required, or permitted, to assess the conduct of the officers against either of the stated tests. (This understanding, as far as the appropriateness of the 'serious and wilful misconduct' test is concerned, was, as has been noted in the Vice-President's decision, incorrect.) 110However, notwithstanding his Honour's reference to the correct 'harsh, unjust or unreasonable' standard at [34], it is plain, from a reading of the balance of the decision at first instance, that the test his Honour did in fact apply in his overall assessment of the conduct of the officers, and in particular Officer Woelfl, was the 'serious and wilful misconduct' test. So much flows from the fact that, apart from his reference to the 'harsh, unreasonable or unjust' test at [34], his Honour referred to that test on only one other occasion throughout his reasoning (excluding references to the test in his summary of the submissions of the parties) when he concluded, at [261], "that the termination of Officer Pearcey's employment would be harsh, unreasonable and unjust." Conversely, his Honour referred to the 'serious and wilful misconduct' test on several occasions throughout his reasoning, in particular when he concluded: that allowing Mr Klum to proceed as he chose following his refusal of assistance did "not amount to serious or wilful misconduct" on behalf of the officers (at [207]); that the failure to inspect cell 219 was a serious error of judgment by Officer Woelfl but did "not constitute serious and wilful misconduct warranting termination of employment"; and, that the failure by Officer Woelfl to investigate and establish a crime scene and to report, whilst amounting to misconduct, was not "serious and wilful misconduct warranting termination of employment." (at [245]). 111The primary ground of appeal in the Department's applications was "[w]hether the learned (sic) Deputy President, in applying the test of "serious and wilful misconduct so as to warrant termination of employment" applied the wrong test to the facts before him in exercising the Commission's power under s 89 of the Act" and "[w]hether, in applying the wrong test, the learned Deputy President erred in not finding that all three respondents had committed misconduct such as to render their threatened dismissals neither harsh, unreasonable nor unjust." 112That the issue of the application of an incorrect test was central to the Department's appeals was reflected in the written and oral submissions of Mr Murphy. The central tenet of Mr Murphy's written submissions, in respect of the Department's appeals, was as follows: 4. His Honour incorrectly applied the test of "serious and wilful misconduct" to his assessment of the culpability of the conduct of the three respondents. In so doing, his Honour entierly misjudged the seriousness of that conduct in the context where the task before his Honour was to determine whether the threatened terminations of the employment of the respondents (or any of them) were harsh, unjust or unreasonable. ... ... 9. A critical conclusion of his Honour in this opening part of the decision is found at paragraph 34. There his Honour identifies three specific considerations to inform an assessment of whether the respondents' conduct amounted to "serious and wilful misconduct so as to warrant termination of employment...". This misstatement of the relevant test to justify termination of employment, as opposed to summary dismissal, discloses a fundamental misunderstanding on the part of his Honour of the manner in which he was required to consider and assess the evidence before him. This misunderstanding constitutes appellable error which infected his Honour's reasoning and, ultimately, the whole of the decision under appeal. 113In oral submissions, Mr Murphy put the following in an exchange with the Bench: MURPHY: The essential complaint we make is that his Honour did not appropriately assess the seriousness of the misconduct. That arises in a number of ways. Firstly, he misdirected himself in that he stated the test he was applying was serious and wilful misconduct. We say that is a clear error. That lead his Honour to misjudge the seriousness of the conduct which he found to have occurred in relation to his HAYLEN J: Do you say actually found serious MURPHY: In relation to the conduct, yes. Having set the bar, the wilful, directed himself as to how he should view the misconduct. The test is, and should have been applied, was the decision to effectively terminate the employment of these three officers based on the seriousness of misconduct, was that decision harsh, unjust or unreasonable. Now his Honour diverted himself in that consideration by misjudging the seriousness of the conduct which is the starting point, look at the misconduct, assess the seriousness of it and based upon that misconduct is it unjust or unreasonable. HAYLEN J: To confine himself to the seriousness of the conduct, that would have been all right, but wilfulness was applying the wrong test. MURPHY: That it is the wrong test, erecting the bar of the level, that is too high when one is simply required to determine whether the dismissal is unreasonable. These people are not summarily dismissed. It was alleged that they were guilty of misconduct, justifying termination of their employment. 114In has been suggested that, despite the position clearly put by him in written and oral submissions, Mr Murphy, in a later exchange with Haylen J, asserted that the Department's case did not, in fact, depend on the issue of the application of an incorrect test by Harrison DP at first instance. That exchange was as follows: HAYLEN J: Concentration on this issue of test, erroneous test, serious and wilful, variously expressed throughout the decision, styles expressed I think as serious and wilful or serious and/or wilful seems to have some history to it in the exercise of the reinstatement power. There are a number of decisions that have used those terms as being appropriate to decide whether a level of misconduct justified the decision to dismiss or didn't. I think there is a particular decision going back to 1966, Cook J, when he used those words, the summary termination test, there might be misconduct or so serious or wilful as to warrant termination or was it something that falls short of that seriousness. I am not sure that we are going to be much assisted on concentrated, the erroneous test argument seems to be put. MURPHY: I want to make it clear our appeal doesn't depend upon that argument. Our proposition is straight forward. Misconduct is sufficient seriousness to warrant dismissal. Whether his Honour misdirected himself is to what extent is peripheral to that decision. 115I do not consider that the above exchange may be considered a concession either on its face (the passage is too unclear to be so) or in its context, given it is entirely inconsistent with balance of the Department's submissions and was made in a context where there was no appeal or cross-appeal in respect of Harrison DP's findings as to misconduct.

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