Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury - [2014] NSWCA 112 - NSWCA 2014 case summary — Zoe

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Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury

[2014] NSWCA 112

Court of Appeal (NSW)|2014-02-12|Before: Basten JA, Ward JA, Bergin CJ

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Court

Court of Appeal (NSW)

Decision date

2014-02-12

Before

Basten JA, Ward JA, Bergin CJ

Source

Original judgment source is linked above.

Judgment (19 paragraphs)

[1]

HCA 40; 55 CLR 499 The King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board) [2011] 3 SCR 708 Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; 59 CLR 369 Pearcey and Department of Attorney General and Justice - Corrective Services [2012] NSWIRComm 132 Pettitt v Dunkley [1971] 1 NSWLR 376 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Public Service Board of New South Wales v Osmond [1986] HCA 7; 159 CLR 656 R v Civil Service Appeal Board; Ex parte Cunningham [1991] 4 All ER 310 R v Secretary of State for the Home Department; Ex parte Doody [1994] 1 AC 531 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; 216 CLR 212 Repatriation Commission v O'Brien [1985] HCA 10; 155 CLR 422 Sherlock v Lloyd [2010] VSCA 122; 27 VR 434 Siffert v The Prisoners Review Board [2011] WASCA 148 Soliman v University of Technology, Sydney [2012] FCAFC 146; 207 FCR 277 TD Preece & Co Pty Ltd v Industrial Court of New South Wales [2008] NSWCA 285; 177 IR 172 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 303 ALR 64 Texts Cited: Aronson and Groves, Judicial Review of Administrative Action (5th ed, 2013) at [8.430]-[8.460] Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (First Applicant)

[2]

[5]

HEADNOTE [This headnote is not to be read as part of the judgment] Mr Richard Woelfl, a correctional officer at Grafton Correctional Centre, was threatened with dismissal after disciplinary charges were laid against him and two other officers. The charges related to misconduct by the officers in allowing a prisoner apparently bashed by his cell-mate to crawl to an adjacent cell; failing to promptly obtain medical assistance for the prisoner; and failing to investigate and establish a crime scene in the cell where the prisoner was originally found. The prisoner eventually died from his injuries. The Union brought proceedings in the Industrial Relations Commission to challenge the threatened dismissal of the officers. Those proceedings found that dismissal would be harsh, unreasonable or unjust and the appropriate penalty for Mr Woelfl was a demotion. The employer successfully appealed this decision to the Full Bench of the Industrial Relations Commission. The Union, on behalf of Mr Woelfl, sought judicial review of the Full Bench decision. Section 179(1) of Industrial Relations Act 1996 (NSW) protects the decisions of the Industrial Relations Commission (which includes the Full Bench) from review unless it can be established that there was jurisdictional error. The issues for determination on review were: (i) whether the Full Bench committed jurisdictional error in exercising its appellate jurisdiction without the existence of error by the trial judge; (ii) whether the Full Bench committed jurisdictional error in failing to provide adequate reasons; (iii) whether the reasons were so inadequate they disclosed jurisdictional error in how the Full Bench redetermined the matter. The Court held, allowing the review (per Basten JA, Ward JA and Bergin CJ in Eq agreeing): In relation to (i)

The appellate jurisdiction of the Full Bench does not depend upon this Court's views as to the existence of error. To treat the objective existence of a relevant error as a precondition to the exercise of the Full Bench's powers would be inconsistent with s 179(1), that a decision of the Commission (however constituted) is final: [30]-[33] Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; 59 CLR 369 applied.
So long as the Full Bench addressed itself to the right question, did not misunderstand the nature of the opinion it was required to form, or reach a conclusion which was manifestly unreasonable or otherwise beyond the limits of power, this Court cannot intervene: [35] The King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 referred to. In relation to (ii)
A challenge to the adequacy of reasons presupposes a legal obligation to provide reasons of a particular quality. The Industrial Relations Act contains no express duty for the Full Bench to provide reasons. The nature of the jurisdiction conferred on the Full Bench nevertheless implies the existence of an obligation to give reasons for its decisions in unfair dismissal cases: [44]-[45] Public Service Board of New South Wales v Osmond [1986] HCA 7; 159 CLR 656; Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 applied. R v Civil Service Appeal Board; Ex parte Cunningham [1991] 4 All ER 310; R v Secretary of State for the Home Department; Ex parte Doody [1994] 1 AC 531; Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817; Sherlock v Lloyd [2010] VSCA 122; 27 VR 434; Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board) [2011] 3 SCR 708 referred to.
The Full Bench did not commit jurisdictional error in failing to provide adequate reasons. While there is an implied duty for the Full Bench to provide reasons, the silence of the statute does not support invalidity as to the consequence of a failure to provide reasons. The contrary implication is to be preferred: [57] Pettitt v Dunkley [1971] 1 NSWLR 376; Public Service Board of New South Wales v Osmond [1986] HCA 7; 159 CLR 656; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 303 ALR 64 applied. Repatriation Commission v O'Brien [1985] HCA 10; 155 CLR 422; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; 216 CLR 212; Seiffert v The Prisoners Review Board [2011] WASCA 148; Soliman v University of Technology, Sydney [2012] FCAFC 146; 207 FCR 277 considered. In relation to (iii)
The Full Bench failed to identify the element of misconduct it regarded as "serious", assess its seriousness and weigh that against the consequences for the applicant of proposed dismissal. The absence of any reference to that essential function by the Full Bench indicates that it was probably not undertaken: [59]-[60], [71]. Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353; Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997; Repatriation Commission v O'Brien [1985] HCA 10; 155 CLR 422; Public Service Board of New South Wales v Osmond [1986] HCA 7; 159 CLR 656 applied.

[6]

Judgment 1BASTEN JA: In the early hours of 10 June 2010 (shortly before 2.20am) an inmate at Grafton Correctional Centre called for assistance. He was later diagnosed with an acute subdural haematoma, which led to his death. The other prisoner in the cell was not charged with any offence. When officers attended to the call, the injured prisoner, Ian Klum, was removed to an adjacent cell. He crawled from one cell to the other. Had the officers inspected the cell from which he was taken, they would have found a considerable amount of blood on Mr Klum's sheets and his broken glasses on the floor. They did not inspect the cell. Mr Klum appears to have passed out and fallen, causing a further injury, whilst unobserved in the second cell. An ambulance was not called until some three hours after the injuries were suffered. Mr Klum died four days later. 2Mr Klum had been received at Grafton prison some three months before his death. There were records of attendances by nurses on 28 occasions in the three months. The Department had available to it a psychiatric report diagnosing prior organic brain damage. He had been living on a rural property with his mother and a farm labourer who acted as a "minder and driver". The psychiatrist noted that Mr Klum "had spent some time in gaol for driving offences and whilst in gaol was extremely anxious and hid inside his cell." Mr Klum had told his psychiatrist that "whilst he was in gaol he was bashed on several occasions and was kicked in the head. He did not know why he was bashed but thought it might be because he would 'get in the road of others' and did not respond appropriately to them, and in the end he was too terrified to leave his cell." 3Why a man with a diagnosed intellectual disability was held in Grafton prison was not clear (although it may have been the closest facility to his home), but, whilst in hospital, he was reclassified by the Department at the lowest security level. 4A departmental officer conducted an inquiry into the circumstances of Mr Klum's death. As a result of the investigation, disciplinary proceedings were instituted against the three officers who responded to the call for assistance. They were threatened with dismissal, in response to which proceedings were commenced by their union in the Industrial Relations Commission on the basis that such a step would be "harsh, unreasonable or unjust" within s 84(1) of the Industrial Relations Act 1996 (NSW); injunctive relief was sought under s 89(7). 5The application on behalf of the three prison officers was determined by the single member of the Commission, Deputy President Harrison, on 28 November 2012: Pearcey and Others and Department of Attorney General and Justice - Corrective Services [2012] NSWIRComm 132. The single member directed that the Department not terminate the employment of any of the three officers, but in relation to the senior officer on duty at Grafton prison on the night in question, Mr Richard Woelfl, directed that lesser disciplinary action be taken, namely demotion. The employer sought leave to appeal to a Full Bench of the Commission; Mr Woelfl cross-appealed on the basis that the single member had no power to order demotion. The Full Bench granted leave and set aside the decision below: Department of Attorney General and Justice - Corrective Services and Richard Woelfl [2013] NSWIRComm 73. The union and Mr Woelfl ("the applicants") brought proceedings for judicial review in this Court, seeking to set aside the decision of the Full Bench, pursuant to s 69 of the Supreme Court Act 1970 (NSW). (Where it is necessary to refer to Mr Woelfl specifically, he will be named.) 6Before the single member, the employer tendered a statement by the initial decision-maker, Mr Gerry Schipp, which apparently included six volumes of attachments comprising 4,434 pages. By this stage, matters had become far removed from the tragic circumstances of Mr Klum's death. The proceedings in this Court are the third level of judicial review. The only person so far found to be responsible in any way is Mr Woelfl. Unfortunately in terms of finality, for the reasons explained below, the decision of the Full Bench with respect to Mr Woelfl cannot stand. 7Although in the proceedings below the Department was named as the employer, there is no such legal entity. In the course of the hearing in this Court it was agreed that the nominal employer was the Secretary of the Treasury. The proceedings were amended to make that officer the first respondent. (It is convenient to refer to the Secretary as "the employer" or "the respondent".) 8The applicants asserted error at two stages in the judgment of the Full Bench. First, they submitted, it was necessary for the Full Bench to identify a relevant error on the part of the single member before it could intervene. Secondly, if error were established, the Full Bench could either set aside the decision of the single member and remit the matter for further consideration by a Commissioner, or it could determine the matter itself: it took the latter course. The applicants submitted that the Full Bench had erred at both stages. 9In the event that error was upheld at the first stage, and there was no basis for intervention, the applicants sought reinstatement of the decision of the single member, subject to one removal of the reference to demotion. In the event that the Full Bench was entitled to intervene and determine the matter itself, but had erred in doing so, the appropriate relief would be remittal to the Full Bench. 10For the reasons set out below, the application should succeed on the second basis. Before reaching the substance of the grounds upon which relief is sought, it is necessary to identify the basis of this Court's jurisdiction.

[7]

Jurisdiction of Supreme Court 11There can be no appeal from the judgment and orders of the Full Bench of the Commission. Indeed, there is a privative provision which states that a decision of the Commission (however constituted) is final and "may not be appealed against, reviewed, quashed or called into question by any court or tribunal": Industrial Relations Act, s 179(1). That provision extends to proceedings "for any relief or remedy, whether by order in the nature prohibition, certiorari or mandamus, by injunction or declaration or otherwise": s 179(5). There was a limited exception in relation to decisions of the Industrial Court on an issue of jurisdiction: s 179(4). (The Industrial Relations Act, including s 179, was extensively amended by the Industrial Relations Amendment (Industrial Court) Act 2013 (NSW) ("the 2013 Amendment Act"), which commenced on 20 December 2013, but the statutory provisions applying in this case were not affected by those amendments.) 12The exception in s 179(4) did not apply to this case, because it only applied to the "Commission in Court session". The Full Bench was constituted by three judicial members; nevertheless, that did not mean that the Commission was sitting as "the Commission in Court Session": s 151(2). The Act prescribes certain functions of the Commission which "are to be exercised only by the Commission in Court Session": s 153(1). When exercising those functions the Commission is operating in Court Session, but when not exercising those functions (absent some other statutory provision) the Commission is not exercising its functions in Court Session. 13The present proceedings were brought under Ch 2, Pt 6, of the Industrial Relations Act, headed "Unfair Dismissals". That jurisdiction is not identified in s 153, or elsewhere, as a function to be exercised by the Commission in Court Session. Although appeals are available to the Full Bench (with leave pursuant to s 188(1)) in relation to a decision on an unfair dismissal claim, the Full Bench only sat as the Commission in Court Session where the appeal was from a member of the Commission exercising the functions of the Commission in Court Session: see s 153(1)(i), repealed by the 2013 Amendment Act. It follows that the Full Bench was not sitting as the Commission in Court Session and, accordingly, judicial review was not permitted pursuant to s 179(4). 14That is not to say that this Court does not have jurisdiction in the present matter: rather, to the extent that s 179 purported to exclude the jurisdiction of this Court to review decisions of the Commission for jurisdictional error it was invalid for constitutional reasons: Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531. Section 179 was valid and effective, however, to preclude review on any ground other than "jurisdictional error": Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 303 ALR 64 at [26] (French CJ, Crennan, Bell, Gageler, Keane JJ). The applicants accepted that, to succeed, they needed to establish jurisdictional error. In one respect, the existence of such error was common ground: the single member had made an order with two limbs, the first requiring the employer not to terminate Mr Woelfl's employment, the second requiring that he be returned to employment "subject to demotion to a lower grade". It was agreed that the single member could not make the second part of the order and the Full Bench would have set aside that part of the order on the cross-appeal, if it had not upheld the employer's appeal. (If the applicants succeeded in this Court in challenging the decision of the Full Bench to set aside the decision of the single member, it would have been necessary to consider whether part only of the order made by the single member could stand, with the invalid part removed: that challenge does not succeed.)

[8]

Findings of fact 15The incident giving rise to the present application took place more than 3.5 years ago. It is not necessary to pursue the reasons for the lapse in time in reaching this stage, which is clearly undesirable, except to note that Mr Woelfl has been suspended on his ordinary salary during that period. 16On 10 June 2010 Mr Woelfl was a Senior Correctional Officer employed in the Department of Corrective Services at Grafton Correctional Centre. He was the senior officer on duty on the night of 9-10 June 2010. 17At approximately 2.20am, Mr Klum called for assistance. Mr Woelfl and two other officers responded to the call and found Mr Klum in some distress and suffering visible injuries to his face. He was removed from the cell 219 which he occupied with another prisoner. He was unable to walk and crawled across the floor to an adjacent cell, 225, where he was left for some eight minutes. The officers took no steps to inspect cell 219 nor even turned the light on. Had they done so they would have observed a large amount of blood on the sheets on Mr Klum's bunk and on the adjacent floor and his broken spectacles on the floor. 18There was no medical officer or nurse on duty at Grafton prison at night. Steps taken to obtain medical assistance resulted in a nurse attending, but not until 3.17am, almost an hour after Mr Klum's call for assistance. Some two hours later, at 5.30am, the nurse arranged a transfer by ambulance to Grafton Base Hospital. Mr Klum was diagnosed with a subdural haematoma and surgery was undertaken to reduce the pressure. Mr Klum was later transferred to a hospital in Brisbane where he died four days later. 19The single member dismissed as unsubstantiated the most serious charge against Mr Woelfl, namely that he was "grossly negligent ... 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": at [230]-[231]. He thought it "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": at [239]. The single member held that 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": at [240]. 20The single member continued: "[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 [the investigator] 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." 21In order to understand the finding of "failure to investigate, establish a crime scene and report", noted by the single member at [245], it is necessary to refer to the following passage earlier in his reasons: "[216] It is not possible to accept that the Officers, having observed Mr Klum with dried blood on his mouth and nose, attempting to get to his feet and failing, did not see any reason to further investigate what may have happened in cell 219. [217] This was a serious error of judgement by the Officer in charge and in my assessment is conduct inconsistent with the responsibility of a correctional officer; however, it does not constitute serious and wilful misconduct warranting termination of employment. [218] I find that Officer Woelfl should have looked further into the circumstances of Mr Klum's condition. It is not satisfactory for him to dismiss the allegation that they should have searched cell 219 and established a crime scene on the basis of a small amount of blood on Mr Klum and the version of events given by Mr Johnson. [219] The notion that there was minimal attention to Mr Klum because the Officers did not believe he was genuine in the extent of his malaise, and yet they were prepared to believe the information conveyed by Mr Johnson that nothing much happened is a disturbing inconsistency. Why believe Mr Johnson and not Mr Klum, particularly when it was Mr Klum who was injured? [220] The presence of any amount of blood warrants a closer examination than looking in through the door, particularly when Mr Klum was observed coming from the back of the cell. [221] I cannot accept the defence that it may have been dangerous to enter cell 219 with Mr Johnson in it. There were three officers, an investigation could and should have been undertaken either when Mr Klum was in Cell 225 or later when Mr Klum was in the observation cell by removing Mr Johnson to another cell. ... [224] Exhibit 12 is a series of 84 photographs taken by Police Officers investigating the incident. Photograph 8 (the first in exhibit 12) confirms the drops of blood at the cell door and the fact that no other blood is visible from that view. [225] Exhibit 11 is 3 photographs of Mr Klum's clothing (photos 75, 76 and 79 of 84), all show blood stains to the tracksuit pants and shirt worn by Mr Klum at the time. [226] Proper observance of Mr Klum would have revealed the amount of blood on his person and provided a basis for further investigation."

[10]

(a) identifying error in the decision of the single member 23There was no dispute in this Court that for an appeal to the Full Bench to succeed, it was necessary for it to identify a relevant error in the decision under appeal. The error in the approach of the single member, identified by Walton J, was to be found in the reasons at [245], set out at [20] above. Walton J held at [83]: "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 .... 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." 24Under the Public Sector Employment and Management Act 2002 (NSW), a Department Head may take "disciplinary action" with respect to an officer who has engaged in "any misconduct": s 46(2). The term "disciplinary action" is defined to include dismissal from the Public Service: s 42(1)(a). The term "misconduct" is also defined (in s 43), but the power to dismiss is not dependent upon the misconduct being characterised as "serious and wilful misconduct". Thus the error entitling the Full Bench to intervene, as identified by Walton J, was the imposition of a standard higher than that required by the statute (being one associated with the power of summary dismissal under the general law of employment). Describing the standard adopted by the single member as the "fulcrum" upon which his decision turned, Walton J identified the error as material (and indeed central) to the outcome. Walton J then identified the correct approach at [84]: "What 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 [sic] the false dichotomy (for the purposes of his adjudication) of 'misconduct' and 'serious and wilful misconduct'." 25The applicants challenged the reasoning of Walton J as erroneous in its identification of error on the part of the single member. It followed, the applicants submitted, that the power of the Full Bench to set aside the orders of the single member was not engaged. The exercise of the power therefore constituted jurisdictional error on the part of the Full Bench. To assess these submissions it is necessary first to identify the nature of the appeal to the Full Bench and the statutory preconditions to the exercise of its appellate function.

[11]

(b) nature of appeal to Full Bench 26The general provisions relating to appeals to a Full Bench apply whether or not the Commission is exercising a function in Court Session. The appeal to the Full Bench was brought pursuant to s 191 of the Industrial Relations Act, the terms of which read in full: 191 Nature of appeal (1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against. (2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against. (3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received. Note. The above section generally follows the decision of the Full Industrial Relations Commission in Big W Discount Stores v Donato (1995) 58 IR 239 as to the nature of an appeal. The appeals in respect of which the section applies include appeals in connection with awards, unfair dismissals, approvals of enterprise agreements, unfair contracts or contraventions of dispute orders. 27It is generally assumed that the effect of s 191(3) is to require the Full Bench to identify an error of the kind referred to in House v The King [1936] HCA 40; 55 CLR 499 at 504-505: see, eg, TD Preece & Co Pty Ltd v Industrial Court of New South Wales [2008] NSWCA 285; 177 IR 172 at [77]. At some point it may become necessary to consider why sub-s (3) is expressed to be merely for the avoidance of doubt and, if the principles applying to appeals from discretionary decisions are truly those set out in House v The King, how the Full Bench is to take into account further evidence if it were to be admitted. It may also be necessary to consider the effect of the Note, pursuant to s 35 of the Interpretation Act 1987 (NSW), and the significance of the Note's reference to a decision of the Commission under a previous, differently worded, section. None of this need be addressed in the present case: the nature of the error identified by Walton J was one which could warrant intervention in accordance with principle applying to appeals from discretionary decisions.

[12]

(c) whether Full Bench erred in intervening 28The applicants sought to persuade this Court that the reasons of the single member did not demonstrate error of the kind identified by Walton J. That exercise raised a fundamental question as to whether the jurisdiction of the Full Bench depended upon the existence of error, being a statutory precondition to the exercise of its appellate power, or whether it was sufficient that the Full Bench, without misunderstanding or failing to apply correct principles, was satisfied that there was a relevant error affecting the decision under appeal. If the first alternative were the correct analysis, this Court could be invited to consider for itself whether the single member erred. If the latter alternative were correct, the role of this Court would be limited to considering error on the part of the Full Bench in forming its opinion. 29Although the Full Bench, in exercising an appellate function with respect to an unfair dismissal, did not enjoy the status of a "superior court of record" as it would if sitting in Court Session (see Industrial Relations Act, s 152(1)), it was a tribunal exercising functions closely aligned to the judicial functions exercised by a court. (Were that not so, the applicants' second argument, depending on the inadequacy of the reasons given by the Full Bench, would face serious difficulty.) Further, it seems doubtful that the statutory conditions for an appeal could vary depending on the characterisation of the Full Bench in a particular case. 30The resolution of this question turns upon a point of statutory construction, although the statute is entirely silent upon the matter. In federal jurisdiction, the answer to such a question may be affected by the different constitutional regimes applicable to federal courts on the one hand, and, on the other, tribunals and decision-makers not established under Ch III of the Constitution. In state jurisdiction, no such clear distinction is made. However, a body having the powers and functions of the Full Bench of the Industrial Relations Commission is not likely to have been intended by the legislature to have significantly less authority within its area of operation than a magistrate from whom an appeal may lie to it. 31In Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; 59 CLR 369, the High Court, in proceedings for prohibition, dismissed the proposition that justices sitting as a Court of Petty Sessions did not have the authority to determine whether an information had been laid within time. Latham CJ stated at 375-376: "The only question therefore is whether the court has jurisdiction to decide upon a question arising in relation to a statutory provision imposing a time limitation upon proceedings. If it has no jurisdiction to decide the question wrongly, then it has no jurisdiction to decide it at all - even rightly. Thus, if the court has no jurisdiction to decide upon such a question, the court could not even decide that a debt which was incurred within a week before the making of a complaint was a debt in respect of which the cause of action arose within six years from the commencement of the proceeding. Such a question would, theoretically, be involved in every claim for a civil debt. Thus, the justices would have no jurisdiction in any such case until a higher court had determined this particular question. A principle which brings about such a result almost provides its own refutation." 32In an oft-cited passage Dixon J observed at 391: "It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed." 33This reasoning applies in the present case. The identification of error is an essential part of the appellate function. To treat the existence of a relevant error as a precondition to the exercise of the powers of the Full Bench, which the Full Bench has no power to determine finally, is to invite the transfer of a major part of the Full Bench's function to this Court. The conclusion that the legislature intended such a result is not only unsupported by any part of the Industrial Relations Act, it is expressly contradicted by the statement that a decision of the Commission (however constituted) is final: s 179(1). Whilst that provision must be read down so as not to exclude review for jurisdictional error, it should not be read as creating a category of jurisdictional error where it would not otherwise arise. 34If the contrary view were accepted, it is at least arguable that the same incongruous result would apply when the Commission was sitting in Court Session, as a superior court of record. No implication to that effect could be accepted. 35It follows that, so long as the Full Bench addressed itself to the right question, did not misunderstand the nature of the opinion it was required to form, or reach a conclusion which was manifestly unreasonable or otherwise beyond the limits of power, this Court cannot intervene: cf The King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432 (Latham CJ); Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [20]-[25] (Gummow and Kiefel JJ). No error of this kind was identified. The fact that this Court was not invited to form such a view is not entirely surprising. Haylen J, who took a different view from the majority of the decision of the single member, stated at [94]: "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." 36As the tentative expression of the alternative view suggests, both views were reasonably open. It is not for this Court to determine which view it would have adopted, had it been required to do so. The matter was one for determination by the Full Bench. There is no doubt that the majority addressed the correct question: the conclusion reached in this respect did not reveal jurisdictional error.

[13]

Challenge to orders of Full Bench 37Having identified error on the part of the single member, it was necessary for the Full Bench to determine the proper outcome of the appeal. It was entitled to set aside the orders of the single member and substitute its own decision. 38At one stage, the applicants challenged the power of the Full Bench to substitute its own decision, but the relevant grounds were abandoned. That abandonment was in conformity with the reasoning of Spigelman CJ in TD Preece at [41]: "The applicant contended that the Full Bench was not entitled to substitute its own decision for that of the trial judge. The applicant's submissions do not give any weight to the word 'merely' in s 191(3). The Full Bench is entitled to 'substitute its decision' for that of a trial judge. That is what an appeal, capable of leading to a variation of the order, is for. Section 191(3) affirms a traditional form of restraint upon the exercise of an appellate function with respect to discretionary decisions. It does not prevent the Full Bench from determining the appeal on a basis different from that of the trial judge." 39The challenges mounted by the applicants wavered (at least in matters of emphasis) between the written submissions and the oral argument and in the course of the oral argument. However, the underlying premise was that the reasons were so inadequate as to fail to satisfy the basic duty to give a reasoned judgment. Reliance was placed upon two broad propositions, namely that: (1) the failure to provide adequate reasons constituted jurisdictional error in its own right, and (2) the reasons were so inadequate as to demonstrate a failure to address the relevant issues in the case. 40A challenge to the adequacy of reasons presupposes a legal obligation to provide reasons of a particular quality. Importantly in the present proceedings, to succeed on the first limb it was necessary for the applicants to establish that inadequacy of reasons constituted jurisdictional error. The second contention was more conventional, namely that the inadequacy of the reasons demonstrated that not all matters which should have been taken into account were taken into account and that the issues required to be addressed were not addressed. That could constitute a failure to exercise the statutory function of the Commission.

[14]

(a) duty to give reasons 41It has long been established that a duty to give proper reasons is a legal incident of the judicial process: Public Service Board of New South Wales v Osmond [1986] HCA 7; 159 CLR 656 at 666-667 (Gibbs CJ); Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [20]-[22] (Handley JA). Nevertheless, there is no general law principle that "a body exercising discretionary administrative powers must give reasons to enable persons affected by the exercise of the power to bring proceedings for judicial review": Osmond at 667. 42The Industrial Relations Commission exercises a variety of functions under the Industrial Relations Act and other legislation. When acting as the Commission in Court Session it is exercising judicial functions: Industrial Relations Act, Pt 3. There is no express statutory obligation imposed on the Commission in Court Session to give reasons, but the obligation would flow as a matter of implication from general law principles. Indeed, the obligation may be embedded in the statement that "formal procedures of a superior court of record apply": s 163(2). Otherwise the Commission exercises a range of functions in relation to setting remuneration and conditions of employment, resolving industrial disputes, including making declarations with respect to unfair contracts and granting relief from dismissals which are found to be harsh, unreasonable or unjust. The Commission may determine its own procedure, is not bound to act in a formal manner and "is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms": see generally ss 162 and 163(1). 43While it may be assumed that the Commission is required to comply with the principles of procedural fairness, it is clear from the reasoning in Osmond (Deane J contra) that procedural fairness does not entail an obligation to give reasons. A different view has been adopted in the UK - see R v Civil Service Appeal Board; Ex parte Cunningham [1991] 4 All ER 310 (Lord Donaldson); R v Secretary of State for the Home Department; Ex parte Doody [1994] 1 AC 531 - and in Canada - see Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817; Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board) [2011] 3 SCR 708 - and see generally Aronson and Groves, Judicial Review of Administrative Action (5th ed, 2013) at [8.430]-[8.460]. Those authorities have not been followed in this country. If an entitlement to reasons were an element of procedural fairness, any breach would presumably constitute jurisdictional error. 44The fact that that course has not been followed in Australia does not preclude an obligation to give reasons in the present case. In Vegan, this Court held that an Appeal Panel established to determine medical disputes under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) is obliged to give reasons for its decision. The first reason given for that conclusion was that "the assessment of permanent impairment undertaken by the Appeal Panel involves the application of a statutory test, by which legal rights as between an employee and an employer are determined. Accordingly it is an exercise in the nature of a judicial function, whatever the precise name or status of the Appeal Panel itself": at [109]. Secondly, the legislation imposed on the medical specialist, from whom an appeal could be taken to the Appeal Panel, an obligation to give reasons. Thirdly, the Act allowed for further assessments to be ordered by a court or the Commission, powers which would be hampered if no reasons were available for the certificate given by the Appeal Panel: at [116]. The fact that no appeal was available from the decisions of the Appeal Panel itself did not preclude the existence of an obligation to give reasons. (Vegan was distinguished in considering an analogous statutory scheme in Victoria: Sherlock v Lloyd [2010] VSCA 122; 27 VR 434.) 45Similar reasoning should be accepted in the present case. First, the nature of the jurisdiction, which involves consideration of whether the dismissal of a person from employment is harsh, unreasonable or unjust, although applying a broad evaluative standard, bears a close relationship to many kinds of civil disputes determined by traditional courts. Secondly, the statutory obligation on appeal to "follow the principles applying to appeals from discretionary decisions" invokes general law principles applicable in courts. Thirdly, as the decision of the Commission at first instance, being subject to an appeal, would carry an obligation to give reasons, it is unlikely that the appellate body would have a lesser obligation. These factors suffice to infer that Parliament intended that the Full Bench, even when not sitting in Court Session, is obliged to give reasons for its decisions in unfair dismissal cases.

[16]

(c) whether inadequacy of reasons constitutes jurisdictional error 48Failure to comply with a legal obligation to give reasons will constitute "error of law" (Pettitt v Dunkley [1971] 1 NSWLR 376 at 388; Osmond at 666; Wingfoot at [28]), but not all such legal errors constitute "jurisdictional error". In the context of an entirely statutory jurisdiction, it is necessary to ask whether a failure to comply with the legal obligation invalidates the decision. That is a question of statutory construction: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [41]. Three factors follow from the acceptance of that proposition. First, decisions with respect to other statutory schemes may be of limited value. Secondly, where the legal obligation arises as a matter of implication, to demand a further level of legal implication may appear artificial. Thirdly, to the extent that the Parliament has not specifically addressed the issue, it may be taken to have assumed the courts will approach the matter in accordance with principles articulated in case law. (The third factor partly qualifies the first, as a consequence of acceptance of the second.) 49Approaching the matter on that basis, two conclusions may readily be stated. First, the privative provision in s 179 is inconsistent with an implication of invalidity. Secondly, the case law is inconsistent with such an implication. 50To establish the latter point, it is sufficient to note that there has been a consistent theme in statements in the High Court, both before and after the enactment of the Industrial Relations Act in 1996, which either deny or do not accept that a failure to give reasons will invalidate a decision, where the decision-maker is not a court. Thus, in Repatriation Commission v O'Brien [1985] HCA 10; 155 CLR 422, in addressing an express obligation to give reasons imposed by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth), Brennan J stated that "a failure by a tribunal adequately to fulfil its statutory obligation to state the reasons for making an administrative decision does not, without more, invalidate the decision or warrant its being set aside by a court of competent jurisdiction": at 445-446. 51Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; 216 CLR 212 involved a failure of the Minister to give reasons pursuant to a statutory obligation, although in circumstances where the statute expressly provided that such a failure should not invalidate the decision: Migration Act 1958 (Cth), s 501G(4). The issue was whether a constitutional writ was available under s 75(v) of the Constitution for jurisdictional error. In the joint reasons of Gleeson CJ, Gummow and Heydon JJ, the first ground for rejecting relief noted that the act which was impugned was not the failure to give reasons, but the exercise of the substantive power of visa cancellation: at [45]. The statement of the relationship between the failure to give the written notice and the power of cancellation was treated as a second ground. It may be inferred that the plurality treated the failure to give reasons as a matter properly to be addressed by seeking an order in the nature of mandamus. 52The other member of the majority in Palme, McHugh J, stated at [55]: "The prosecutor contends that the Minister's failure to give reasons constitutes jurisdictional error with the result that the Minister had no jurisdiction or power to cancel the visa. Jurisdiction is the authority to decide. It is not easy to accept the notion that a decision is made without authority because subsequently the decision-maker fails to give reasons for the decision. Nevertheless, it is always possible that a statutory scheme has made the giving of reasons a condition precedent to the validity of a decision. If it has, a decision that does not give reasons will be made without authority. Whether a scheme has that effect is determined by applying the principles stated by this Court in Project Blue Sky ...." 53In Seiffert v The Prisoners Review Board [2011] WASCA 148 the Court of Appeal considered whether the Board had failed to exercise its jurisdiction in failing to give reasons for a decision to cancel a parole order. Applying the principles established in Project Blue Sky, Martin CJ (McLure P and Murphy JA agreeing) addressed the issue as one of statutory construction: at [173]. In the circumstances of the case, that required consideration of the nature of the decision, its consequences for the applicant, the functions and composition of the Board and the circumstances in which it was required to act. That approach may now be described as conventional. 54More recently, in Soliman v University of Technology, Sydney [2012] FCAFC 146; 207 FCR 277 the Full Court of the Federal Court (Marshall, North and Flick JJ) addressed the consequence of a failure to provide findings and reasons, in breach of a statutory obligation, in proceedings in the Australian Industrial Relations Commission. The jurisdiction of the Commission, analogously to the present case, concerned a complaint that disciplinary action in employment was disproportionate to the misconduct of the employee. The Full Court stated: "[50] A failure to comply with a statutory obligation to provide reasons may constitute an error of law but it does not follow that a failure to do so constitutes jurisdictional error sufficient to warrant setting a decision aside either in whole or in part .... [51] In circumstances such as the present, where there is no statutory requirement to provide either reasons or findings of fact, it would be difficult to conclude that a failure to do so constitutes jurisdictional error such as to warrant the decision of the Vice President [of Fair Work Australia] being set aside." 55Most recently, the scope of the obligation and the adequacy of particular reasons were considered by the High Court in Wingfoot. In dealing with a statutory provision requiring a medical panel to provide a written statement of reasons for its opinion (Accident Compensation Act 1985 (Vic), s 68) the Court stated: "[28] ... A Medical Panel which in fact gives reasons that are inadequate to meet the standard required of a written statement of reasons under s 68(2) of the Act fails to comply with the legal duty imposed on it by s 68(2) and thereby makes an error of law. Inadequacy of reasons will therefore inevitably be an error of law on the face of the record of the opinion of a Medical Panel, and certiorari will therefore be available to remove the legal consequences of an opinion for which non-compliant reasons have been given. [29] Whether non-compliance by the Medical Panel with its duty to give a written statement of reasons also constitutes a breach of a condition of the valid performance of the duty imposed on it by s 68(1) and (2) of the Act to form, and to give a certificate as to, its opinion on a question referred to it is not to the point. That issue would only be determinative in an application to the Supreme Court for an order in the nature of certiorari to remove the purported legal consequences of a medical opinion on the basis of jurisdictional error. In an application for an order in the nature of certiorari to remove the legal consequences or purported legal consequences of a medical opinion on the basis of error of law on the face of the record, the issue simply does not arise." 56When considering the adequacy of the reasons provided, in order to determine whether an error of law was revealed on the facts of the case, the Court noted that "[t]he starting point for considering the standard required of a written statement of reasons under s 68(2) of the Act is recognition that there is in Australia no free-standing common law duty to give reasons for making a statutory decision": at [43], referring to Osmond. 57There is nothing in this state of the authorities which might suggest that, in maintaining silence as to any obligation to give reasons and as to the consequence of a failure to provide reasons, the State legislature implicitly assumed or accepted that invalidity would follow. The contrary implication is to be preferred. 58Assuming that the reasons provided by the Full Bench for setting aside the order made by the single member were inadequate to constitute compliance with the legal obligation, such a conclusion would not avail the applicants in the present case. They can succeed only on the basis of jurisdictional error and an error of the kind assumed, under the applicable statutory scheme, would not invalidate the decision.

[17]

Jurisdictional error otherwise demonstrated 59There can be no doubt that "if the decision-maker does not give any reason for his decision, the Court may be able to infer that he had no good reason": Osmond at 663-664; Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1053-1054; Palme at [39]. As further stated by Brennan J in O'Brien at 446, echoing the reasoning of Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360: "If a failure to give adequate reasons for making an administrative decision warrants an inference that the tribunal has failed in some respect to exercise its powers according to law (as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts), the court may act upon the inference and set the decision aside. In such a case, the exercise of the statutory power to make a decision is held invalid not because of a failure to state the reasons for making the decision, but because of a failure to make the decision according to law ...." 60Whether the applicants' complaints with respect to the order of the Full Bench should be accepted depends upon the inferences which may be drawn from the reasons for refusing relief under s 89(7), taken in the context of the whole of the judgment. Having determined that the single member was in error and that leave to appeal should be granted, Walton J gave his reasons for refusing relief in brief, indeed perfunctory, terms at [86]: "I 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." 61Given that Walton J had set out, only two paragraphs earlier, the relevant question, being whether, notwithstanding the misconduct found, the threatened dismissal of Mr Woelfl was harsh, unreasonable or unjust, it is difficult to infer that he did not have that test in mind in stating, succinctly, his conclusion. The assertion that he had carried out a "close examination" of the CCTV footage and the evidence in the proceedings should be accepted. Further, key aspects of the evidence had been summarised earlier in the reasons, at [4]-[20] and [29]-[33]; the allegations made with respect to Mr Woelfl had been identified and the findings made in the investigator's report considered, at [40]-[46]; the proceedings before the single member had been examined at [53]-[56], where the critical factual findings with respect of Officer Woelfl (and the other two officers) were set out. The judge had also set out the grounds of appeal and the submissions of the parties: at [57]ff. With respect to the specific allegation concerning Officer Woelfl, Walton J noted that the single member had upheld the charges concerning failure to investigate the incident and establish and report a crime scene. This background does not support any broad-based contention that the judge was not conscious of the issues raised in the proceedings. Nor can the applicants succeed by analysing how he addressed them; rather they must establish that, at the critical point, they were not addressed. 62In the first of his brief reasons, Walton J categorised the misconduct of the officer as "serious on its face": at 86. Complaint was made that this proposition failed to identify which element of the misconduct accepted by the single member was being relied on. This omission was significant, the applicants submitted, because it was necessary for it to be balanced against mitigating factors. 63The second reason involved two elements: the first was that the officer held a "senior position" in the Department. So he did, in the sense that he was the senior officer on duty at Grafton prison at the time of the events leading to Mr Klum's death. The second element was the reference to Officer Woelfl's "misjudgments" which were described as "fundamental to the discharge of his duties". An issue was raised as to the use of the term "misjudgments", on the basis that they too were not identified with precision and did not accord with a finding of "misconduct". It is true that they were not clearly identified, but read in context, namely that they were fundamental to the discharge of the officer's duties, the term should be understood as referring to the misconduct of a serious kind referred to (although not specified) in reason (1). The fact that the elements of misjudgement were not identified may demonstrate the inadequacy of the reasons: it does not necessarily demonstrate that the judge had misunderstood either the evidence, the issues or the statutory test. 64The third reason was the subject of careful scrutiny. The applicants submitted that there was no identification of the "procedure" which had not been adhered to, in circumstances where the facts revealed that departmental procedures had been adhered to, to the letter. Further, whereas the Department undoubtedly owed a duty to Mr Klum with respect to his health and safety following an apparent attack upon him, the inference that Officer Woelfl had failed in his duty to obtain timely medical assistance had been rejected by the single member. 65Finally, the applicants complained that Walton J failed to discuss the elements of the tripartite test and, in particular, failed to refer to the subjective elements which might have rendered dismissal harsh, unreasonable or unjust, such as Mr Woelfl's long service and "exemplary service record", which were relied on by the single member in determining that the appropriate penalty was demotion. 66There is some irony in the complaint that Walton J did not identify the terms of the misconduct held to be "serious on its face" and failed to address aspects of Mr Woelfl's long service and "exemplary service record", which would have been relevant to determining whether the statutory test was satisfied. The irony lies in the fact that it was a similar failure on the part of the Deputy President which led the Full Bench to intervene. However, even if that error were made good, it would be necessary to determine whether it constituted jurisdictional error. 67These challenges, cumulatively, have substance. On one view, the critical findings supporting the seriousness of Mr Woelfl's conduct were those set out at [21] above: the other adverse findings followed from them. Thus, the failure to establish a crime scene resulted directly from the failure to investigate the cell, because it was primarily such an investigation which should have led to the conclusion that a serious crime may have been committed and to the incident being reported: see single member at [242]. Indeed, such an investigation might also have supported what was described by the single member as the "most serious charge" against Officer Woelfl, namely not assisting Mr Klum from cell 219 to cell 225. The knowledge of blood loss would have suggested that Mr Klum was not feigning injury, would have warranted the conclusion that he was crawling because he was unable to walk, would have suggested the need to call an ambulance immediately and would have provided important information to be supplied to whichever medical service attended first. 68These further conclusions were not drawn and there was no challenge to the failure to draw them. Nevertheless, it is clear from this material that the misconduct comprised in the finding of failure to investigate was properly described as "serious", although precisely why called for articulation. Despite lengthy sections in the reasons setting out the history of the various charges and the findings made by the single member, at no point did Walton J set out the findings quoted at [21] above. Had that been done, and had the relevant element of the misconduct been identified, it would have been open to infer that those matters led to the conclusion that the first charge at least was "serious on its face". 69Not only was that material not referred to, but the omission was compounded by the reference in the second reason to "misjudgments" and in the third reason to a lack of "adherence to procedure". The failure to investigate, which was the subject of a "further allegation", did not in its terms allege a failure to follow procedure, but breach of duty of care to the prisoner. However, on the findings of fact, it can only have been that duty which could have resulted in "more urgent medical treatment" and been consistent with the duty owed by the Department to Mr Klum. 70Even if it might properly be inferred from the somewhat scant references in the reasons that Walton J identified the serious misconduct in the way suggested above, that was only part of the exercise required in determining the availability of relief under s 89(7). It was also necessary to weigh in the balance any "mitigating circumstances": Electricity Commission of NSW (Pacific Power) v Krump [1993] NSWIRComm 30 (Fisher P, Hungerford J and Connor CC). The length of prior employment, the employment record and favourable character considerations may all be relevant to determining whether relief should be granted. Further, in reaching a final determination, it was necessary to consider separately the possibility that dismissal might be "harsh", although not unjust or unreasonable: Byrne v Australian Airlines Ltd [1995] HCA 24; 185 CLR 410 at 465 (McHugh and Gummow JJ). Noting that in many cases the concepts will overlap, McHugh and Gummow JJ also pointed out that termination of employment "may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted." 71Despite the fact that the Full Bench intervened because it determined that the single member had not addressed the correct issue, and despite the fact that it had, in broad terms, identified the questions to be determined, there must have been a real issue as to whether, given Mr Woelfl's long and favourable record, the misconduct in the present case was sufficient to warrant termination. The absence of any reference in the reasons to the long and favourable record of service suggests that the necessary weighing exercise was not undertaken. There may have been a subconscious concern that it would be quite unsatisfactory for an apparently avoidable death in custody to have occurred and yet no one be held responsible. That is not to suggest that some such false reasoning was explicitly adopted, but only to identify a possible explanation for the apparent absence of focus on the critical questions. What is clear is the need to identify the element of misconduct and assess its seriousness and weigh that against the consequence of proposed dismissal. The absence of any reference to that essential exercise indicates that it was probably not undertaken.