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: