Pearcey and Others and Department of Attorney General and Justice - Corrective Services [2012] NSWIRComm 132

Industrial Relations Commission New South Wales Medium Neutral Citation: Pearcey and Others and Department of Attorney General and Justice - Corrective Services [2012] NSWIRComm 132 Hearing dates: 10,11, 12 July; 15, 16 August; 6 September 2012 Decision date: 28 November 2012 Before: Harrison DP Decision: (1) In Matter No IRC12/504 The Department of Attorney General and Justice - Corrective Services shall not terminate the employment of Officer David Pearcey arising from the events subject to these proceedings. Officer Pearcey is to be returned to employment as a Corrective Services Officer with the Department of Attorney General and Justice - Corrective Services at Grafton Correctional Facility. (2) In Matter No IRC12/505 The Department of Attorney General and Justice - Corrective Services shall not terminate the employment of Officer Matthew Barnett arising from the events subject to these proceedings. Officer Barnett is to be returned to employment as a Corrective Services Officer with the Department of Attorney General and Justice - Corrective Services at Grafton Correctional Facility subject to a caution in respect to conduct. (3) In Matter No IRC 12/506 The Department of Attorney General and Justice - Corrective Services shall not terminate the employment of Officer Richard Woelfl arising from the events subject to these proceedings. Mr Woelfl is to be returned to employment as a Corrective Services Officer with the Department of Attorney General and Justice - Corrective Services at Grafton Correctional Facility subject to demotion to a lower grade. Catchwords: Applications re unfair dismissal pursuant to s83(5)(a) threatened unfair dismissal - matters heard concurrently. Dismissal due to misconduct in relation to the treatment of an inmate at Grafton Correctional Facility in June 2010. Inmate Ian Klum died in hospital after transfer from the facility by ambulance. Interlocutory proceedings resulting in Decision 24 April 2012 restoring employment pending determination. Held - Officers offered assistance to inmate which was declined - reasonable to allow inmate preference than force unwanted assistance - attitude and demeanour severe, warranting caution - no allegation that actions of Officers contributed to injury or death. Failure to investigate events error of judgement - Senior Officer Woelfl to be demoted to a lower rank. Mitigating circumstances - Distinguished service over long period for all three applicants. Termination of employment would be harsh, unreasonable and unjust - other sanctions available. Legislation Cited: Industrial Relations Act 1996 Public Sector Employment and Management Act 2002 The Evidence Act 1995 No 25 Crimes (Administration of Sentences) Regulation 2008 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Category: Principal judgment Parties: David Pearcey, Matthew Barnett, Richard Woelfl (Applicants) Department of Attorney General and Justice - Corrective Services (Respondent) Representation: Ms P Lowson of Counsel for Applicant Mr J Murphy of Counsel for Respondent McNally Jones (Applicant) File Number(s): IRC 504 of 2012 IRC 505 of 2012 IRC 506 of 2012