Industrial Relations Commission New South Wales Medium Neutral Citation: 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 Hearing dates: 20 April 2012 Decision date: 24 April 2012 Jurisdiction: Industrial Relations Commission Before: Boland J, President Decision: (1) In matter No IRC 504 of 2012 the employer shall not dismiss David Pearcey pending the hearing and determination of the proceedings. (2) In matter No IRC 505 of 2012 the employer shall not dismiss Matthew Barnett pending the hearing and determination of the proceedings. (3) In matter No IRC 506 of 2012 the employer shall not dismiss Richard Woelfl pending the hearing and determination of the proceedings. (4) The files in the foregoing matters are allocated to Kavanagh J for hearing and determination with a request that her Honour deal with the matters expeditiously. (5) Liberty to apply on reasonable notice. Catchwords: UNFAIR DISMISSAL - Interlocutory applications in relation to threatened dismissal of three correctional officers - Officers charged with and found guilty of misconduct in relation to the death of an inmate at Grafton Correctional Centre in 2010 - Applications that the employment of the three officers not be terminated pending the hearing and determination of threatened dismissal claims - Principles to be applied in making orders under s 89(7) of the Industrial Relations Act 1996 - Orders made that the employer not dismiss the officers pending the hearing and determination of the proceedings - Matters allocated to member of Commission with request that the matters be dealt with expeditiously. Legislation Cited: Industrial Relations Act 1996 Public Sector Employment and Management Act 2002 Cases Cited: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 ASMOF o/b Elizabeth Benson and Western Sydney Area Health Service [2003] NSWIRComm 337 Australian Salaried Medical Officers' Federation (New South Wales) on behalf of Professor Bruce Hall and South Western Sydney Area Health Service [2003] NSWIRComm 8 Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Dhayanithi Sivathondan) and South Western Sydney Area Health Service [2002] NSWIRComm 98 ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 229 Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 Hill v Director-General of the Department of Education and Training (1998) 85 IR 201 Western Sydney Area Health Service v Australia Salaried Medical Officers' Federation (NSW) [2004] NSWIRComm 246; (2004) 138 IR 203 Category: Interlocutory applications Parties: Public Service Association and Professional Officers Association Amalgamated Union of New South Wales on behalf of David Pearcey, Matthew Barnett and Richard Woelfl (Applicant) Department of Attorney General and Justice - Corrective Services NSW (Respondent) Representation: Ms P Lowson of counsel (Applicant) Mr J Murphy of counsel (Respondent) W G McNally Jones Staff, solicitors (Applicant) Corrective Services NSW (Respondent) File Number(s): IRC 504 of 2012 IRC 505 of 2012 IRC 506 of 2012 INTERLOCUTORY DECISION 1Mr David Pearcey, Mr Matthew Barnett and Mr Richard Woelfl are employed as correctional officers with Corrective Services NSW, which is part of the Department of Attorney General and Justice. On behalf of each of the officers, the Public Service Association and Professional Officers Association Amalgamated Union of New South Wales ("PSA" or "the applicant") has filed in the Industrial Relations Commission an application for relief in relation to threatened unfair dismissal by the officers' employer. The applications each seek an interlocutory order that: [T]he Respondent shall not dismiss the applicant pending the hearing and determination of the proceedings. This decision concerns the applicant's interlocutory applications. 2According to the reasons for each of the applications, on 10 June 2010 an incident occurred at Grafton Correctional Centre involving two inmates, Mr Johnson and Mr Klum. The three correctional officers were called to attend the incident. They removed Mr Klum from the cell and placed him in a different cell. The officers then made arrangements for the on-call nurse to attend at the gaol. 3Mr Klum was subsequently transferred to an observation cell. After conferring by telephone with a doctor the officers arranged for Mr Klum to be taken by ambulance to hospital. Mr Klum's condition deteriorated, apparently due to bleeding to the brain and he died four days later in hospital. 4The three officers were suspended from duty in June 2010 and were subject to a disciplinary process. By letter dated 21 July 2011 each officer was advised: (i) that the allegations against them had been found proven; and (ii) of the maximum penalty being considered. 5According to an affidavit of urgency by the applicant's solicitor filed in support of the applications: For Mr Woelfl the maximum penalty being considered was dismissal. For Mr Barnett and Mr Pearcey the maximum penalty being considered was demotion. Arrangements were made prior to 21 July 2011 for Mr Pearcey and Mr Barnett to return to the workplace, and each officer believed that they would resume their careers at that time. However, in the same 21 July letter the officers were each advised of a "new" allegation. As a consequence each of Mr Barnett and Mr Pearcey proceeded on stress-related sick leave, which was subsequently changed to being returned to suspension. Mr Woelfl remained on suspension throughout. The officers have disputed that the "new" allegation was properly brought against the officers, as the allegation relies on facts known to the respondent since 10 June 2010. In or about September 2011 the respondent advised Mr Pearcey and Mr Barnett that their application for voluntary redundancy has been accepted. Within a matter of days, the respondent purported to withdraw the redundancy. In October 2011 an Inquest into the death of Mr Klum commenced in Grafton. As a consequence of the Inquest CCTV footage of the officers and Mr Klum was released to the media, and was shown on a 730 report on ABC television. The report contained factual errors - for example, that no medical care was sought for inmate Klum, when in fact Mr Woelfl had called for a nurse within a matter of minutes of separating the inmates - which, together with the footage, were severely and wrongly damaging to our clients' reputation. Original findings of misconduct against Pearcey and Barnett 6The original findings of misconduct against Mr Pearcey and Mr Barnett were advised to the two officers in a letter dated 21 July 2011, namely: 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 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. 7The above findings were made notwithstanding that the Investigation Report, presumably upon which the findings were based, did not find "gross negligence", but rather that the two officers "did not provide a satisfactory standard of care". In the letter of 21 July 2011 the officers were advised that the penalty being considered was demotion. New allegations against Pearcey and Barnett 8The "new" allegations against Mr Pearcey and Mr Barnett, which were set out in another letter also dated 21 July 2011, were that they breached their duty of care to Inmate Klum by failing to properly respond to the incident 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. Original findings of misconduct against Woelfl 9Mr Woelfl was the senior officer on the night shift on 10 June 2010. The original findings of misconduct against Mr Woelfl, and set out in a letter of 21 July 2011, were: 1. 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 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, to the General Manager, from all staff involved in this 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. 10The letter of 21 July 2011 advised Mr Woelfl that the penalty being considered was dismissal. New allegations against Woelfl 11The "new allegations" against Mr Woelfl, set out in a separate letter also dated 21 July 2011, were the same as those levelled against Messrs Pearcey and Barnett, namely, that he breached his duty of care to Inmate Klum by failing to properly respond to the incident 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. 12On 28 February 2012, each officer was advised in writing that the "new" allegations referred to in the letter of 21 July 2011 had been found proven, and that the maximum penalty being considered for each officer was dismissal. The officers were given until 17 April 2012 to make any submissions in relation to the employer's findings and the disciplinary action proposed. 13The applicant's solicitor had sought an undertaking from the respondent employer that it would provide seven days' notice of any decision to dismiss. However, no such undertaking was forthcoming. 14The applications were listed for directions on 18 April 2012. At that time the employer indicated that no steps would be taken to dismiss the three officers for at least one week. However, the employer declined to give any undertaking that it would provide seven days' notice of any decision to dismiss. Applicant's evidence 15On 20 April, the applicant's solicitor, Ms Alison McRobert, filed a further affidavit. In the affidavit Ms McRobert deposed that an Inquest into the death of Mr Klum had commenced and was continuing in June 2012. The affidavit also referred to media coverage of the Inquest and the fact that the Coroner, over objection from the three officers, had released CCTV footage of the incident to the press. 16The affidavit made reference to a report on 19 October 2011 on the ABC current affairs program, The 7.30 Report, and attached the transcript of the report, which included excerpts from the CCTV footage. Ms McRobert deposed that the report contained a number of inaccuracies including that Mr Klum had been left for three hours without medical care. Ms McRobert stated that Mr Woelfl telephoned for an on-call nurse to attend "within a few minutes" of attending at the knock-up call at Mr Klum's cell and the nurse arrived at the prison within approximately 45 minutes of the incident and took over the care of Mr Klum. 17Ms McRobert further stated that she had "googled" the names "Richard Woelfl Grafton", "Matthew Barnett Grafton" and "David Pearcey Grafton" and attached to the affidavit a copy of comments extracted from the website "YouTube" regarding the item on the 7.30 Report. Some of the commentary on "YouTube" attacked the officers using abusive and inflammatory language, for example: Fucking pigs! Go die u Stuck up DOGS That is f****g disgusting, what the f***??!! You can't even call that a dog act, that would be too kind! That makes me sick knowing this sort of thing happens all the time, in most prisons if not all. Of course the public never get to see or hear about officers being criminals, or is it cruelty to human beings?? Sympathy for the Klum family, take it all the way and sue their arses off, should still be a (sic) eye for a (sic) eye, see how they like it! fuking (sic) garbage how they can treat another human like this hope these bastards get what they deserve scumbags you screws are what (sic) you think you can treat human beings like garbage fuk (sic) you dogs hope you get your just deserves (sic) the pigs you are. 18Other commentary on the website was more temperate and some of the posts defended the officers. 19Ms McRobert provided details, based on instructions, of the personal and family circumstances, including financial circumstances, of each of the officers and contended there were severe consequences for them if their employment was terminated. Ms McRobert noted the officers' instructions regarding the difficulty of obtaining employment in the Grafton area. Ms McRobert also referred in the affidavit to alleged abuse that had been directed against the officers as they went about their daily lives. 20In respect of Mr Woelfl: (a) he is the main breadwinner in his family and supports one daughter; (b) he is 48 years of age; (c) he has been employed by the respondent for 26 years and received an exemplary conduct medal for bravery in 1990 after being stabbed seven times and protected the lives of medical staff. He has not been the subject of any previous disciplinary process; (d) if his employment were terminated he would have to sell his home and move away from Grafton to find employment; and (e) he has been diagnosed with a medical condition. 21In respect of Mr Barnett: (a) he is the main breadwinner in his family and supports four children, two of school age; (b) he is 46 years old; (c) he has worked for the respondent since January 1995 and has an unblemished disciplinary record. He received a "Commissioner's Commendation" in 1996 for "Exceptional Conduct and Dedication to Duty"; (d) if he were dismissed he would have to sell his house and move to a city to seek employment and his wife would have to close her business; (e) he has been abused in public and called a "dog"; (f) he has been diagnosed with a medical condition; and (g) he has given military service. 22In respect of Mr Pearcey: (a) he is the only breadwinner for himself and his wife; (b) he has recently been diagnosed with a serious medical condition; (c) he is 65 years of age but prior to his suspension had no plans to retire; (d) both Mr Pearcey and his wife have received hate mail since the Inquest which has included words such as "Die you bastard" and "Hope you rot in hell"; (e) given his age and adverse publicity there is no chance of Mr Pearcey gaining other employment; (f) he has a 14 year unblemished record of employment with the respondent; (g) he has a Letter of Commendation in respect of his intervention in a person's suicide attempt in 2001 and a personal letter from the prison's governor regarding his effort in trying to save the life of another person in 2002; (h) he had 30 years of military service, including war service; and (i) he has been a Justice of the Peace for 11 years, a Freemason, and an active RSL-Sub branch member. 23A bundle of documents was tendered in respect of each of the officers. In respect of Mr Woelfl the bundle consisted of the following material: (a) letter dated 28 June 2010 to Mr Woelfl from Simon Berry, Principal Investigator, advising Mr Woelfl of the allegations against him and in respect of which Mr Woelf was asked to reply; (b) letter to Mr Woelfl dated 21 July 2011 from Mr Gerry Schipp, Deputy Commissioner advising Mr Woelfl that the Deputy Commissioner had formed the opinion that Mr Woelfl had engaged in the "original allegations" listed in [9] of this judgment above and indicating the "severest penalty I could impose is : Dismissal". Submissions were sought from Mr Woelfl regarding the allegations; (c) a further letter to Mr Woelfl from Mr Schipp also dated 21 July 2011 setting out the "new allegations" listed in [11] of this judgment above and indicating these were to be investigated with an opportunity to be given to Mr Woelfl to respond; (d) a letter to Mr Woelfl dated 19 October 2011 from Shane Bagley, Senior Investigator, setting out the "new allegations" and inviting Mr Woelfl to an interview on 26 October 2011; (e) a letter to Mr Woelfl dated 28 February 2012 from Mr Schipp indicating that he had formed the opinion Mr Woelfl had engaged in misconduct in the form of both the "original" and the "new" allegations and the severest penalty he could impose was dismissal. Attached to the letter was the Investigation Report. Mr Schipp invited a written response from Mr Woelfl regarding the findings of misconduct or an oral submission in addition to or instead of the written submission; (f) an 11-page letter from Mr Woelfl's solicitors dated 17 April 2012 which set out Mr Woelfl's submissions regarding Mr Schipp's findings of misconduct. Attached to the letter were written submissions that had been provided to the respondent during the course of the investigations into the original and new allegations against Mr Woelfl. The letter and its attachments raised serious issues of fact. The letter also attacked the Investigator's Report as lacking in transparency in the reasoning and analysis. In that respect it was stated the Report: a. It fails to give any weight to, and therefore to balance, the evidence as to the facts and circumstances as they presented to Officer Woelfl at the relevant time; b. It fails to give any or any sufficient weight to Mr Klum's condition, as assessed by the nurse, for a number of hours after Mr Klum passed from our client's care into the care of the Justice Health Nurse; c. It is tainted by being prepared through the prism of hindsight - that is, the fact of Mr Klum's death distorts the assessment of Mr Woelfl's actions in a way that is manifestly unfair to our client. 24The bundles of documents in respect of Mr Pearcey and Mr Barnett were similar in nature to those described above in respect of Mr Woelfl, but which of course contained material and submissions relating to the specific allegations and findings made against them. Both officers addressed the allegations against them in written submissions to the respondent and denied the misconduct alleged against them. Attempted conciliation 25The interlocutory applications were listed for hearing on 20 April. Prior to commencing the hearing the Commission explored with counsel for the parties the prospect of resolving the matters by conciliation. It became evident that no such prospect existed. 7.30 Report 26At the request of the respondent, the Commission viewed the item on the 7.30 Report dealing with the incident at Grafton on 10 June 2010. As noted earlier, the Report included excerpts from the CCTV footage in relation to which a reporter offered his comments. Ms Lowson, counsel for the applicant, submitted that the report into the incident was inaccurate in a number of respects, namely: (a) there was an assertion that when the prison officers arrived at cell 219 there was a heavily bleeding inmate. Mr Klum had a small amount of blood under his nose or around his nose and that is all. The three officers are consistent on this and there is no evidence to the contrary; (b) the report described the cell as becoming a crime scene. Even two years later no charges have yet been laid against the other prisoner and there have been no findings of fact about what actually occurred in the cell; (c) there was a suggestion in the report that the officers did not enter the cell and ascertain what happened. That is correct. However, Mr Woelfl had stated that it would be only in the most serious circumstances that the cell would be entered on the night watch; (d) Mr Woelfl did ask what happened, but Mr Klum provided no information about what had occurred. Mr Johnson, the other inmate, said that Mr Klum had approach him and that he had pushed Mr Klum away, and that was the extent of the information of what was provided to the prison officers in terms of the altercation that had occurred; (e) the reference in the report to Mr Klum being fatally injured was very much after the fact. It is likely that he was at that time fatally injured but that was not apparent to the prison officers at the time; (f) although the CCTV footage showed Mr Klum crawling across the floor to cell 225, Mr Barnett had leaned down to offer Mr Klum assistance, but Mr Klum waved that assistance away. On that basis Mr Klum was left to crawl on the floor; (g) after Mr Klum was placed in the second cell, cell 225, Mr Woelfl proceeded to ring the nurse unit manager in Sydney to obtain authorisation for a nurse to attend the gaol. The 24 hour oncall nurse that had been assigned to the gaol had been laid off some 18 months or so prior and so there was no nurse or other medical person on site on the night shift; (h) Mr Woelfl obtained authorisation from the nurse unit manager within minutes of Mr Klum being placed in the cell and he then proceeded to call the night nurse who arrived at the prison in approximately half an hour. Mr Klum was then passed into the care of the nurse; (i) the nurse maintained a watching brief over Mr Klum for the following two hours and was aware of the fact that he had a headache and was aware of the fact that he had a head injury. The nurse made assessments of him and he was found to be at the highest level of consciousness and alertness. It was not until later when Mr Klum appeared to be deteriorating or in fact when she consulted a doctor and referred to Mr Klum's medications because he was on a blood thinning medication that the doctor directed that he should be taken to the hospital; (j) after an incident a form is filled out with a prisoner, the prisoner is asked whether they want police involvement, Mr Klum indicated that he did. When Mr Klum was in the nurse's care he was sufficiently aware and able to fill in the form and to indicate that he wanted police involvement; (k) Mr Woelfl made an appropriate report of matters at the end of his shift when he handed over to the incoming prison superintendent. Jurisdiction 27I do not understand there to have been any issue that a threat of dismissal existed in respect of the three officers. The letters of 28 February 2012 to the officers made it clear the respondent was considering dismissal having found that allegations of misconduct had been made out. 28Section 83(5)(a) of the Industrial Relations Act 1996 provides: (5) In this Part: dismissal includes: (a) the threat of dismissal, ... 29Section 89(7) of the Act provides: (7) Threat of dismissal In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat. 30There was also no issue about the Commission's jurisdiction to make orders under s 89(7) that the respondent not dismiss any or all of the three officers. In that respect, see Hill v Director-General of the Department of Education and Training (1998) 85 IR 201 at 208, cited with approval and/or applied in: Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Dhayanithi Sivathondan) and South Western Sydney Area Health Service [2002] NSWIRComm 98 at [32] - [34]; Australian Salaried Medical Officers' Federation (New South Wales) on behalf of Professor Bruce Hall and South Western Sydney Area Health Service [2003] NSWIRComm 8 at [27]; ASMOF o/b Elizabeth Benson and Western Sydney Area Health Service [2003] NSWIRComm 337 at [6]; Western Sydney Area Health Service v Australia Salaried Medical Officers' Federation (NSW) [2004] NSWIRComm 246; (2004) 138 IR 203 at [31]. See also ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 229 at [25]. 31In Wojtulewicz the Commission observed at [31] that the exercise of the power to make interlocutory orders under s 89(7) is discretionary. And further, that the Commission will not lightly interfere with an employer's contractual (or statutory) right to terminate the employment of an employee. 32In Wojtulewicz the Commission also held (at [32]-[36]) that in light of the decision in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 the correct approach to determining whether to grant or refuse an interlocutory order under s 89(7) was in accordance with Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618. 33As it was observed in Wojtulewicz at [32]-[36]: [32]... In O'Neill, Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed, said at [65] (references omitted): The relevant principles [governing interlocutory injunctions] in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued: "The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal: How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks. [33] At [19], Gleeson CJ and Crennan J stated (references omitted): The principles were discussed, for example, in Chappell v TCN Channel Nine Pty Ltd (a decision referred to by Crawford J in a passage quoted above), National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd, and Jakudo Pty Ltd v South Australian Telecasters Ltd. As Doyle CJ said in the last-mentioned case, in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be folIowed. [34] Thus what the plaintiff must show is that there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights asserted by the plaintiff and the practical consequences likely to flow from the order sought. [35] Further, given the decision in O'Neill and the endorsement of the 'two inquiry' approach in Beecham, it would seem that the issue of irreparable damage by reason of damages not being an adequate remedy, no longer stands as a separate consideration, but is one that comes under the second inquiry referred to in the judgment of Gummow and Hayne JJ, namely, "whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted" or, in other words, the balance of convenience test. [36] Gummow and Hayne JJ refer to preserving the status quo pending trial. The status quo may be the position of the parties at the time of the commencement of the proceeding. However, the defendant's allegedly wrongful conduct may have commenced by the time the proceeding is issued. In that case the plaintiff will seek to maintain the status quo pending trial in the sense that it wants the position to remain as it was before the defendant commenced to engage in the conduct complained of. That is the present case. 34Thus, the two tests to be applied are: (i) whether there is a sufficient likelihood of success by the three officers to justify in the circumstances the preservation of the status quo pending the final hearing, status quo in this case being understood to be the suspension of the three officers on pay; (ii) whether the inconvenience or injury which the three officers would be likely to suffer if their interlocutory applications were refused outweighs or is outweighed by the injury which the respondent would suffer if the applications were granted. The second test may be referred to as the balance of convenience test. Submissions of the parties 35The parties made oral and written submissions. The applicant submitted the tests in Beecham had been met and addressed the reasons why this was so. Those reasons will be referred to in the course of this judgment. 36The respondent submitted the proceedings concerned serious allegations of misconduct against three prison officers; that the disciplinary process against the three officers was being conducted in accordance with the Procedural Guidelines for Dealing with Misconduct as a Disciplinary Matter and the Taking of Disciplinary Action pursuant to Part 2.7, Division 2 of the Public Sector Employment and Management Act 2002. This was the normal process, it was submitted, and there was no basis for the Commission to intervene at this stage by way of an interlocutory order restraining dismissal, if that were the decision that is ultimately reached in any of the three matters. 37The respondent submitted the matters before the Commission had none of the rare features warranting an injunction such as those that existed in Sivathondan, Hall, Benson or Wojtulewicz; there was nothing in this case that took it outside the ordinary class of disciplinary matters in Corrective Services or the broader public sector. Whether the PSA has made out a prima facie case Mr Pearcey and Mr Barnett 38In respect of Mr Pearcey and Mr Barnett, in the investigation into the allegation that they were grossly negligent in the performance of their duties relating to the incident on 10 June 2010, the Investigator found there was no gross negligence in the failure to assist Mr Klum, but rather that the two officers "did not provide a satisfactory standard of care". Given that the severest penalty contemplated by the respondent in respect of the gross negligence allegation was demotion, it would seem that dismissal would be too harsh a sanction to be applied to the two officers where the finding was a failure to provide a satisfactory standard of care. 39However, notwithstanding the Investigator's finding, the respondent maintained a finding of gross negligence in respect of both officers. Whilst the respondent may be entitled to make its own assessment, it is noted the respondent did not indicate the basis upon which it rejected the Investigator's findings and substituted its own findings. Moreover, the officers contend that, in any event, the Investigator's conclusions regarding the failure to assist Mr Klum were without any proper basis. It was asserted that neither Mr Pearcey nor Mr Barnett was aware Mr Klum could not walk unaided, as his injuries appeared minor. Further, Mr Pearcey and Mr Barnett maintained that Mr Klum shrugged off Mr Barnett's offer of assistance and that he did not want to be touched. It was asserted that if Mr Klum had been picked up and moved when he did not wish to be touched, it would have been categorised as a use of force. 40As to the finding that Mr Pearcey and Mr Barnett were grossly negligent in leaving Mr Klum for approximately 8 minutes unattended "when it was clear he required medical attention", it was asserted that the injuries to Mr Klum appeared minor with a small amount of blood on Mr Klum's nose and that he complained of a headache. Further, the on-call nurse initially advised that the injuries were minor. What is more, despite what appeared to be minor injuries, Mr Woelfl called for the on-call nurse to attend and did so within a matter of minutes. 41In relation to the allegations in respect of which Mr Barnett and Mr Pearcey were advised in the letter from the respondent dated 28 February 2012 that the allegations had been found proven, the material tendered challenged the Investigation Report and the subsequent findings. The findings, it will be recalled, were that the two officers breached their duty of care to Inmate Klum by failing to properly respond to the incident 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 occurred. By failing to properly respond to the knock-up call you have breached your duty of care to inmate KLUM. 42The significance of these findings appears to be that in the morning following the incident a large amount of blood was found in cell 219 and the inference seems to be that if Mr Pearcey or Mr Barnett had turned on the cell light and inspected the cell they would have been alerted to Mr Klum having received a serious injury and could then have taken appropriate action to assist Mr Klum and his care would have been enhanced. 43However, submissions made by Mr Pearcey regarding the Investigation Report included the following: (a) The Report concludes that it was a "reasonable expectation" that Mr Pearcey would have turned on the cell light in the circumstances but the Report does not analyse on what basis this conclusion was reached. However this did not take account of the following: Mr Pearcey believed that Mr Klum would not walk rather than could not walk; Mr Klum would not tell Mr Woelfl what had occurred in the cell; Mr Klum was fully dressed and had his shoes and socks on; Mr Klum's injuries appeared minor and consistent with a minor altercation. Minor altercations between inmates are a common occurrence in a correctional centre and officers are not expected to treat every area of the gaol where an altercation occurs between two inmates as a "crime scene"; Mr Pearcey was the junior officer subject to Mr Woelfl's direction and control; Mr Pearcey could see Mr Klum and Mr Johnson in the available light when he arrived at the cell. (b) As to the finding that Mr Pearcey failed to inspect the cell at any time during the incident or thereafter, his submission included the following: there was no evidence to contradict Mr Pearcey's evidence that, on a minimally manned B watch, it was not usual procedure to enter a cell unless a critical incident had occurred that necessitated doing so. Given that Mr Klum's injuries appeared minor and that Mr Pearcey believed that Mr Klum was unwilling rather than unable to walk it would have been highly unlikely that Mr Pearcey would have taken the extraordinary step of overriding the Night Senior's decision and initiating a cell inspection. (c) As to the finding that Mr Pearcey made no proper inspection of Mr Klum's injuries or the cell to assist in his determination of what occurred, Mr Pearcey's submission included the following: Mr Pearcey observed that Mr Klum had minor facial injuries and a bit of blood under his nose. He was not asked to conduct a more thorough inspection by the Night Senior, nor was there any apparent reason to whilst Mr Klum was in cell 219; there was no basis for the assertion in the Investigator's Report that Mr Klum suffered "an obvious physical injury that required immediate treatment". Indeed, there was direct evidence that contradicted this position, in that the on-call nurse did not assess that Mr Klum required immediate treatment based on the physical injuries and all other observations of him. 44The submissions by or on behalf of Mr Pearcey asserted that certain conclusions of the Investigation Report: (a) Bear little relationship to the wording of the allegation; (b) At times are incoherent and contain sweeping general statements not based on evidence; and (c) Are manifestly unfair. 45The submissions also asserted that the Investigator: (a) Alleges negligence in general; (b) Alleges a Failure to use common sense - again in general; (c) Refers to "facts and circumstances" without, in the Report, having established the facts and circumstances ... but apparently having rejected, without explanation, our client's account; (d) Alleges that our client failed to apply "principles of law" with no further explanation. 46The submissions on behalf of Mr Pearcey asserted, "It is not open to you to find to the requisite standard of proof that our client engaged in misconduct in terms of this allegation." 47It was submitted by counsel for the applicant that the disciplinary process was seriously tainted by procedural unfairness in that: a. The initial interviews with Mr Pearcey and Mr Woelfl were conducted in a way that was unfair - leading questions were asked in circumstances where both officers had just completed a stressful night shift and had voluntarily returned to work to assist in the investigation. b. Those interviews were then used against the officers in the disciplinary process. c. The attempt to suspend the officers without pay. d. The inclusion of various allegations against Mr Pearcey and Mr Barnett when it was clear that, as the more junior officers, these allegations were irrelevant to their circumstances - as was subsequently held in the investigation. e. The delay in finalising the first disciplinary process. f. The introduction of the "new" allegation when the facts had been known since 10 June 2010. g. The obvious intention in devising the "new" allegation to orchestrate a basis for dismissing Mr Pearcey and Mr Barnett, and shoring up the dismissal of Mr Woelfl. h. The failure to give notice of the "new" allegation, combined with arrangements being put in place for Mr Barnett and Mr Pearcey to return to work in circumstances where they believed that the disciplinary process was complete. 48Counsel further submitted: In relation to the allegations themselves, the applicants have made a number of submissions highlighting the errors in approach and analysis that have been made by the respondent. These include: a. Not giving any weight to the fact that Mr Woelfl made an assessment that Mr Klum was exaggerating when he crawled rather than walked to cell 225. b. Not giving any weight to the procedures that were followed on the night, including: i. Promptly arranging for the nurse to attend the prison; ii. Moving the prisoner to an observation cell; iii. Giving the prisoner the option to report the matter to police. c. Not giving any weight to the nurse's care and assessment of Mr Klum over a number of hours. d. Assessing the situation in hindsight, rather than assessing the circumstances as they presented to the prison officers at the time; in particular scrutinizing the conduct from the knowledge of Mr Klum's subsequent death with a view to finding a scapegoat. 49Mr Barnett was also subject to the control and direction of Mr Woelfl on the evening of 10 June 2010. The submissions by and on behalf of Mr Barnett are materially similar to those in respect of Mr Pearcey and it is not necessary to repeat the substance of them. 50On the evidence that is presently available to the Commission (which does not include the Investigation Report) there is a sufficient likelihood of success by Messrs Barnett and Pearcey to justify the preservation of the status quo pending the final hearing. 51The CCTV footage of the three officers handling of Mr Klum is confronting and on the face of it, and in hindsight, Mr Klum appears to have been poorly treated. But the CCTV footage may not tell anywhere near the whole story after all of the evidence is considered. 52If the assertions of Mr Pearcey and Mr Barnett are accepted as evidence of what occurred on 10 June 2010, and why they did what they did, there is the real prospect of it being held that dismissal was harsh, unjust or unconscionable and that a lesser penalty should have been the appropriate outcome, depending on the ultimate findings. Mr Woelfl 53The position of Mr Woelfl is less straightforward than that of Mr Pearcey and Mr Barnett. Mr Woelfl was the senior officer on the night in question and the original findings made against him are different to those of the other two officers. 54In relation to the original findings against Mr Woelfl, it was submitted to the respondent by or on behalf of Mr Woelfl that the Investigation Report did not support the findings to the relevant standard and was flawed for the following reasons: (a) It fails to give any weight, and therefore balance, to the evidence as to the facts and circumstances as they presented to Officer Woelfl at the relevant time; (b) It fails to give any or any sufficient weight to Mr Klum's condition, as assessed by the nurse, for a number of hours after Mr Klum passed from Mr Woelfl's care into the care of the Justice Health Nurse; (c) It is tainted by being prepared through the prism of hindsight - that is, the fact of Mr Klum's death distorts the assessment of Mr Woelfl's actions in a way that is manifestly unfair to Mr Woelfl. 55It was further submitted that allegations 1 and 2 and the second dot point of allegation 3 were all premised on the incorrect assumption that Mr Woelfl was aware that the incident that had occurred between the inmates was serious and that it was necessary to treat cell 219 as a crime scene. Once it was accepted there were reasonable grounds for Mr Woelfl to conclude that the incident was not serious, there was no proper basis for concluding that any failures arising from that assessment amounted to misconduct, even if the assessment was incorrect. 56The submissions referred to Mr Woelfl's evidence to the Investigator regarding the incident: (a) The initial injuries to Mr Klum appeared to be minor - he had a small bit of blood under his nose consistent with a nose bleed, he had no other visible injuries, he did not have blood on his person and there was nothing to indicate to Mr Woelfl when he attended the cell that a serious incident had occurred; (b) There was nothing on Mr Klum's physical person that indicated he had been involved in a serious assault or had a serious brain injury or was bleeding on the brain. 57It was submitted to the respondent the on-call nurse confirmed the foregoing observations. Moreover, the ambulance officers who attended Mr Klum noted: (a) Mr Klum's injuries as minor; (b) He had the highest level of consciousness; and (c) He was uncooperative. 58Crucially, it was submitted to the respondent, the Investigation Report failed to deal with Mr Woelfl's evidence that: (a) He observed Mr Klum walking in cell 219; (b) He presumed that Mr Klum would not walk to cell 225, rather than forming a belief that Mr Klum could not walk to cell 225. 59Additionally, Mr Klum was observed walking by the nurse, and correctional officers observed Mr Klum walking whilst he was in the observation cell. It was submitted to the respondent that in the absence of a contrary account by Mr Klum, in the circumstances there was no evidence on which to conclude that Mr Klum could not walk when he crawled between cell 219 and cell 225. However, even if Mr Woelfl's assessment about whether Mr Klum could walk or not was incorrect, that did not amount to misconduct. 60The submissions to the respondent also referred to the steps taken by Mr Woelfl after attending cell 219: (a) He immediately separated the inmates; (b) He immediately called for medical assistance; (c) He advised the nurse unit manager that he wanted Mr Klum checked for possible head injuries and that he was complaining of a headache; (d) He attended cell 225 to interview Mr Klum as to what had occurred but at that stage he noticed what appeared to be far greater injuries to Mr Klum than when he left cell 219; (e) He provided adequate information to the nursing staff about Mr Klum's condition; (f) He arranged for Mr Klum to be escorted to the observation cells in the clinic once he knew the nurse would attend the Centre; (g) He directed Officer Pearcey to interview Mr Klum and fill out the inmate questionnaire; and (h) He completed the IRM report. 61In relation to the second set of findings referred to in Mr Schipp's letter of 28 February 2012 (the same findings as those made against Mr Pearcey and Mr Barnett), submissions similar to those made by Mr Pearcey and Mr Barnett were put to the respondent by Mr Woelfl or on his behalf. 62However, a distinction needs to be made between Messrs Barnett and Pearcey on the one hand and Mr Woelfl on the other. Mr Woelfl was the officer in charge. Nevertheless, it was maintained that the circumstances were such that nothing indicated a need by the senior officer to turn on the cell light in cell 219: Mr Woelfl believed Mr Klum was capable of walking (he had seen him walk in the cell); Mr Klum's injuries appeared minor; Mr Klum had not volunteered a version of events that suggested serious injury had been done to him; Mr Johnson's version of what occurred did not suggest a serious assault; and there was sufficient light to see Mr Klum clearly. 63It was also submitted by Mr Woelfl to the respondent that there was no evidence that had he turned on the cell light he would have seen the bloodstains. It was stated: The officer who collected the rubbish from the cell later that morning did not see the bloodstains nor did Officer Woelfl when he spoke to Mr Johnson and performed a 'lock up' after 6am. If turning on the cell night (sic) would not have alerted him to the bloodstains, then there is no reason why he would have inspected the cell against usual Correctional Centre procedure on a night shift. 64It was submitted to the respondent there was no evidence to contradict Mr Woelfl's evidence that, on a B watch, he would not order a cell inspection unless there was a critical incident. 65In relation to the finding that Mr Woelfl made no proper inspection of Mr Klum's injuries to assist in his determination of what occurred, it was submitted to the respondent that it was Mr Woelfl's evidence to the Investigator that he did conduct an inspection of the injuries at the grille door of cell 219 and observed that Mr Klum had minor abrasions. Mr Woelfl said he also checked the injuries as Mr Klum entered cell 225. Further, that Mr Woelfl directed Mr Barnett to carry out a more thorough inspection of Mr Klum's injuries in the observation cell. 66Reference was made to the Investigation Report where it was said to assert directly or indirectly that Mr Woelfl should have: (a) Halted and assisted Mr Klum whilst he was crawling on the floor between cells - notwithstanding that Mr Woelfl believed that Mr Klum did have the ability to walk; did not want to be assisted after he shrugged off Officer Barnett's offered assistance and he was complying with the direction to move; (b) Administered first aid to Mr Klum in the corridor - notwithstanding that the only visible injury at that time were minor abrasions/small quantity of dried blood around the mouth; (c) Comforted Mr Klum; (d) Monitored Mr Klum's condition: (i) On his way to cell 225; (ii) Once inside cell 225. Notwithstanding that: Mr Woelfl believed that Mr Klum did not want to be assisted and did have the ability to walk; The only visible injury at the time were minor abrasions/small quantity of dried blood around the mouth. (e) should have asked Mr Klum if he had sustained a head injury - notwithstanding that Mr Klum had elected not to tell the officers what had occurred when asked, or subsequently (in any detail) and also elected not to tell the Nurse what had occurred when she asked him in the clinic. 67Whilst I have reservations, on balance there is a sufficient likelihood of success by Mr Woelfl to justify the preservation of the status quo pending the final hearing. I find it difficult to avoid the conclusion that as the officer in charge Mr Woelfl could have treated Mr Klum and the incident in a more appropriate manner than what appears to have occurred. Whilst I recognise gaol is no kindergarten, it is still a place where humanity deserves some dignity and respect. Nevertheless, when all of the evidence is weighed, and not just through the episodic focus of CCTV footage, there is sufficient likelihood that if Mr Woelfl's evidence in the Investigation and its effect were found to be true and correct, dismissal may be considered harsh, unjust or unconscionable. Balance of convenience 68If no interlocutory order was made and the three officers were dismissed, it could be, in my estimation, three to six months before the Commission determined any unfair dismissal claim. In the meantime, the likelihood is that the three officers would not be able to earn any income in the Grafton area, employment prospects being quite limited. In respect of Mr Woelfl he has been employed with the respondent for approximately 26 years, most of his adult working life. The prospect of him finding employment that suits his skills and experience in the local area is slim indeed. Mr Pearcey's age is a distinct disadvantage in finding other employment in an area where jobs are less plentiful than in the capital cities and suburbs. All three have been the subject of vilification and abuse by the anonymous critics that appear to inhabit some of the social media and to some extent the officers have become pariahs, even in their hometown. The stigma attached to them in their local area would most likely act as a disincentive to hiring them, even in casual employment. Moreover, in the intervening period between dismissal and any determination regarding their unfair dismissal claims, the three officers would have to endure the shame brought upon them by the dismissal and the continued, and probably heightened, denigration and abuse. 69The loss of income through dismissal, even for a relatively short period of three to six months, places in jeopardy their ability to meet their expenses and retain the family home. The evidence is that each of them may be forced to sell their homes, uproot their families and move to where employment was available. Even then, the stigma that the social media has attached to them could prove a barrier to employment. These days it is a simple matter of employers searching the electronic media (as the officers' solicitor did) for information concerning individuals. The coverage given to the three officers would undoubtedly operate to their prejudice in the context of seeking new employment. 70Even if the three officers were successful, ultimately, in achieving reinstatement orders, if they were forced to sell their homes and/or relocate to find employment in the meantime, they would have suffered unnecessary substantial inconvenience and cost. 71To be weighed against this is the prejudice or "damage" to the respondent. That damage amounts to not having the matters resolved in a timely way and having to maintain the officers' pay whilst they are on suspension until the matters are heard and determined. 72It is the case that the officers have been receiving pay (albeit at a lesser rate than if they were working) since they were suspended some 22 months ago. However, that is no fault of the officers. For some yet unexplained reason, it was not until July 2011, some 13 months after the incident, that new allegations were made against the officers concerned. These new allegations were then investigated and found proven in February 2012. This delay in resolving the matters and having to pay the officers for the extended period would appear to lie at the feet of the respondent. 73That the respondent may be required to maintain the officers on suspension and pay them for a further three to six months does not appear to me to outweigh the prejudice or damage I have described as being inflicted on the officers concerned. 74The respondent submitted there was nothing in this case that takes it outside the ordinary class of disciplinary matters in Corrective Services or the broader public sector. That is not the appropriate test. Any person the subject of disciplinary proceedings involving a threat of dismissal under the Industrial Relations Act that satisfies the tests in Beecham is, in the tribunal's discretion, entitled to an order that the dismissal not proceed pending the hearing and determination of the claim. 75In any event, this case is out of the ordinary. It involves persons in a particular line of work dominated by a single employer in the Grafton area; it involves three employees living and working in a country town where the prospects of alternative employment are quite limited, with the potential of forcing the individuals to sell their homes and displacing their families; and it involves the shame and embarrassment of being publicly and widely vilified and abused in circumstances where it may be found it was not warranted, but where the stigma of such vilification and abuse may be ineradicable. Orders and directions 76The Commission makes the following orders pursuant to s 89(7) of the Industrial Relations Act 1996: (1) In matter No IRC 504 of 2012 the employer shall not dismiss David Pearcey pending the hearing and determination of the proceedings. (2) In matter No IRC 505 of 2012 the employer shall not dismiss Matthew Barnett pending the hearing and determination of the proceedings. (3) In matter No IRC 506 of 2012 the employer shall not dismiss Richard Woelfl pending the hearing and determination of the proceedings. (4) The files in the foregoing matters are allocated to Kavanagh J for hearing and determination with a request that her Honour deal with the matters expeditiously. (5) Liberty to apply on reasonable notice. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 April 2012