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 Decision 1In these matters the applicants seek relief from threat of unfair dismissal pursuant to Part 6 of the Industrial Relations Act 1996 ("the Act"). Each applicant seeks an order pursuant to s 89(7) of the Act. 2The matters were heard concurrently as they arose from the same set of facts and circumstances which occurred at Grafton Correctional Facility ("the Facility") on 10 June 2010. 3At approximately 2.20 am on 10 June 2010 Mr Ian Klum, an inmate, called for assistance ("the knock up call"). The applicants, Officers Richard Woelfl, Matthew Barnett and David Pearcey ("the Officers") responded, removing Mr Klum from the cell he occupied (cell 219) with another prisoner, Mr Johnson, to an adjacent cell (cell 225). Mr Klum was allowed to crawl across the floor to cell 225 where he was left for eight minutes. 4Approval was sought and obtained for the on-call nurse to attend the Facility. Mr Klum was then transferred to an observation cell. 5The on-call nurse arrived at 3.17am and took control of Mr Klum's medical attention. At 5.30 am the nurse arranged for Mr Klum to be transferred by ambulance to Grafton Hospital, which is across the road from the Facility. Ambulance officers attended and Mr Klum was transported to the hospital, where he was subject to further assessment and surgical procedures to reduce a subdural haematoma. 6Mr Klum did not recover from this process. He was transferred to a Brisbane hospital where he died four days later. 7The Officers were suspended from duty in June 2010 and the matter subject to two internal investigations leading to charges of gross misconduct against them and a decision by the Department of Attorney General and Justice - Corrective Services ("the Department") to first suspend them on pay and ultimately to terminate their employment. 8The specific charges made against each Officer and the process of investigation and decision making are set out in the evidence of Mr Gerry Schipp, then the Department's Deputy Commissioner Corporate Services (exhibit 28). 9By correspondence dated 30 August 2010 (exhibit 29) Mr Schipp advised each of the Officers that he was considering converting their suspension on pay to suspension without pay. 10This was opposed by the Officers and confirmed by Mr Schipp on 5 October 2010 on the basis that the decision would be reviewed in 30 days and that each of the Officers were afforded permission to engage in secondary employment. 11The issue of suspension without pay was subject to dispute proceedings before his Honour Justice Marks (Matter No IRC 1489 of 2011) which concluded that suspension with pay should continue. 12These matters were subject to proceedings before his Honour Boland J, President in which the Department was restrained from terminating the employment of the Officers pending a substantive hearing of the matters [2012] NSWIRComm 33. 13The matters were subject to Hearing over a number of days, which included the presentation of Closed Circuit Television (CCTV) recordings of events and substantial documentary and oral evidence prior to final submissions. 14A Statement of Agreed Facts (Exhibit 1 in these proceedings) states as follows: 1. Nurse White was aware that Inmate Klum complained of a. having a headache b. "spinning out" c. vertigo. 2. Each of the applicants had no disciplinary matters prior to 10 June 2012. 3. Officer Woelfl a. Telephoned the NUM at approximately 2:35 am on 10 June 2012 to obtain authority to call in the on-call nurse b. Telephoned Nurse Merye White at approximately 2:37 am to attend at Grafton Gaol 4. Nurse White attended Grafton Gaol at approximately 3:17am on 10 June 2012. 5. Nurse White was responsible for all medical decisions concerning Inmate KIum from 3:17am on 10 June 2012. 6. CSOs are not permitted to give medication to Inmates. 7. Until approximately January 2009 a nurse was stationed on duty at Grafton Gaol 24 hours per day. 15Mr Murphy of Counsel, appearing for the Department, submitted that the fact of Mr Klum's death should not be lost or overlooked in the consideration of this matter. It is not. The circumstances of Mr Klum are tragic, as considered below. 16These proceedings concern the conduct and actions of the Officers over a brief period of time commencing at 2.20am on 10 June 2010 when they responded to the call from Mr Klum, to when Mr Klum was placed in the observation area and a nurse was called to attend to his medical needs. 17The primary allegations put are that in this period of time the Officers displayed a disregard for Mr Klum by allowing him to crawl across the common area from cell 219 to cell 225 and did not discharge their duty by failing to fully investigate the circumstances, in particular they did not look inside cell 219 where Mr Klum was accommodated with Mr Johnson, to ascertain whether there was any indication of what had occurred. 18It is put that had the Officers looked inside cell 219 they would have seen a large amount of blood on the sheets of Mr Klum's bunk and on the floor adjacent, and his broken spectacles. 19It is put that had they looked and been able to inform the Nurse of the amount of blood loss by Mr Klum, the actions (of the Officers and the nurse) and outcomes may have been different. This proposition is not supported by the medical evidence discussed below. 20Once in the observation area Mr Klum was coherent, seen to walk unaided and participated in verbal exchange with officers taking reports, the nurse and ambulance staff. 21This is supported by the evidence of Mr Phillip Ball (Exhibit 10), a Correctional Officer employed at Grafton Correctional Centre, who deposed that he was regularly rostered to work in the monitor room and that it is common practice to review CCTV footage of incidents. 22Mr Ball deposed that on 11 June 2010 he reviewed the CCTV footage of the observation cell from 3.15 am on 10 June 2010 and observed Mr Klum initially slumped on the bed, then laying down, then walking to the back of the cell four or five times and going to the toilet once. 23Mr Ball deposed that Mr Klum was familiar to him as he regularly took him for routine medication. 24The evidence is: * Mr Klum participated in preparation of an incident report confirming that he required a police investigation into the events, but specifically made no complaint about any of the correctional officers (Report of Investigator Bagley, exhibit 28 annex 21 p499); * The nurse examined Mr Klum at 3.24 am and noted (exhibit 28 annex 22 to attach 45 at p2235): ....a laceration to his right eyebrow and was bradycardic. Mr Klum was orientated to time, person and place. At 04:25 swelling was visible to the bridge of his nose. The nurse contacted the ANHM and On-Call Medical Officer for further advice. At 05:06hrs the nurse conducted an electrocardiogram (ECG) that showed significant changes including complete bundle branch block, right sided QRS axis deviation, left posterior fiscular block and ischemic ST - T changes to the inferior leads. Mr Klum was transferred via ambulance to Grafton Base Hospital at 05:40hrs. 25There are further allegations put in respect to communications to senior staff, completion of necessary records in the required time frame and other procedural matters. 26I have completely reviewed all of the evidence in respect to these issues and find that there was adequate compliance with Departmental reporting requirements, any deficiencies are minor and understandable in the circumstances and do not amount to misconduct warranting sanction. 27The charges in respect to reporting are substantially based on the view that the event was reported as a minor event when it should have been given significant event status. 28Ms Lowson, appearing on behalf of the Officers, submitted that they were subject to procedural unfairness amounting to harsh and unreasonable treatment from the interview process and the investigations: The interviews: * In the first interviews held on 10 June 2010 the Officers were recalled after working the night shift and were not informed that they were under investigation themselves. The evidence of the Officers is that they only realised part way through the interview when the interviewers "turned hostile" that they were under adverse scrutiny. There is a fundamental unfairness in this conduct by the Department which will be given appropriate weight. The investigations: * The first investigation was not completed until 21 July 2011. This prompted a second investigation which was not completed until 28 February 2012 giving rise to further allegations of misconduct. 29In some circumstances Ms Lowson's submissions that the delay visited unfairness on the Officers may have substance, however, it is not unusual that an investigation uncovers matters that require further consideration. It is the nature of an investigation to discover the unknown or prove the known. 30The delay is unfortunate but does not in this case give rise to procedural unfairness. 31Ms Lowson argued that the allegations of misconduct are flawed as the decision maker Mr Schipp, who framed the allegations and determined the sanction of dismissal, did not accept or agree with the findings of the investigator. 32I accept Mr Murphy's submission that the findings of the investigation and the conclusions of the decision maker are not material to the matter now before the Commission. 33As put by Mr Murphy, the Commission has the benefit of all the evidence before it and must come to its own determination on the facts. 34The issues reduce to three specific considerations to inform an assessment of whether the Officers' conduct amounted to serious and wilful misconduct so as to warrant termination of employment; or whether such termination would be harsh, unreasonable and unjust. Those considerations are: (1)Was it reasonable to allow Mr Klum to crawl across the floor from Cell 219 to Cell 225 or was it inappropriate disregard for his physical wellbeing and dignity? (2)Was there sufficient grounds to warrant a search of Cell 219 and the establishment of a crime scene, or did the Officers fail to do their duty? (3)Did the officers display an inappropriately aggressive and demeaning attitude toward Mr Klum when moving him from Cell 225 to the observation area or were their actions reasonable in the circumstances? The Events of 10 June 2010 35It is necessary to examine closely the events of 10 June 2010 at Grafton Correctional Centre. The only direct participants apart from Mr Klum were Mr Johnson, the other occupant of cell 219, and Officers Woelfl, Barnett, Pearcey and Gilbert. 36At 2.20 am Mr Klum made a verbal request for assistance. Officers Woelfl, Barnett and Pearcey attended. 37There is a voice recording of the knock up call and of the Officers removal of Mr Klum from cell 219 to cell 225 and to the observation area together with two separate CCTV recordings of the events. The Knock Up Call 38Voice 1 on the recording of the knock up call (track 1) is the corrections officer receiving the call; Voice 2 is Mr Klum; Voice 3 is Mr Johnson (exhibit 28, vol 1, tab 21 p536): KNOCK UP CALL Track 1 Transcript of Conversation Voice 1 What's up Voice 2 Uhh I'm so sick Voice 1 What's the matter with ya Sigh Voice 3 I dunno chief - he's all fucked up Voice 1 Mate what's wrong with him? What's his name? Voice 2/3 Klum Klum Voice 1 Clark is it? Voice 2/3 Klum Voice 1 Clark Voice 2/3 Klum Voice 1 Well what's the matter with him Voice 2 I'm bleeding Voice 1 Bleeding where? Voice 2 From my, From my, From my mouth an my nose Voice 1 I'll let the boss know 39Track 2 is the recording of Officers Woelfl, Barnett, Pearcey and Gilbert return to cell 225 to collect Mr Klum. Voice 1 is the corrections officer acknowledging the call, Voice 2 is Officer Woelfl, voice 4 is Mr Barnett: Track 2 Transcript of Conversation - - Indiscernible conversation Voice 1 Yeh what's the matter Voice 4 You didn't have that on you when we fucken brought you over here - - Indiscernible conversation Voice 4 Get up now Voice 2 No Voice 4 Now, get up Voice 2 I'm spinning out Voice 4 Get up Voice 4 Get up now, come on Voice 2 Sorry I can't, I'm spinning out - - Indiscernible conversation Voice 4 Stand up Voice 2 I can't get up Voice 4 Stand up Voice 2 I'm spinning out Voice 4 Stand up, now walk - - - - Voice 1 Was that yous at 225 (indiscernible)? Voice 5 Hey? Voice 1 Is that yous? Voice 4 What? Voice 1 Someone knocked up on that cell, was that yous was it? Voice 4 No it wasn't Voice 1 Righto Voice 4 It was probably him No further recording 40The "boss" was Officer Woelfl who directed Officers Barnett and Pearcey to attend with him. The Closed Circuit Television Recording 41The CCTV recording provides two angles of view. These were reviewed by the Investigations Branch of the Department. The detailed observations of Analyst L Howell (exhibit 28 vol 5 pp 3454 to 3455) are set out below. It is appropriate to note that the CCTV vision is not a continuous image but a series of separate images three seconds apart in which some minor movement is lost: DISC TWO Time Observations 2:25:18 Lights go on in Wing 2:25:43 3 X Officers come into view of camera and walk towards Cell 219 2:25:59 1 x Officer opens outer cell door / 1 x Officer stands at inner cell grill / 2 x Officers remain at outer cell door 2:27:19 1 x Officer walks away out of view of camera 2:27:41 1 x Officer returns to cell 2:28:12 1 x Officer opens inner grill door 2:28:23 Inmate appears at cell door, crawling position on ground 2:28:28 Inmate appears to collapse to ground as he crawls from cell, 1 x Officer bends down towards inmate and appears to reach out to inmate then stands again 2:28:32 1 x Officer closes inner grill door, Inmate is lying on side, in front of outer cell door, holding his hand to his head 2:28:39 Officer reaches out with his leg touching inmate's leg and appears to slide inmate moving inmate away from cell door, Inmate is still holding hand to his head area. 2 x Officers are looking down at inmate 2:28:41 1 x Officer again using his leg appears to slide inmate by the legs, moving the inmate further away from cell door, Officer then begins to close cell door. Inmate still lying on his side, appears to look up at Officers 2:28:43 Cell door is closed, Inmate starts to rise up to seated position holding his hand to his head area 2:28:49 2 x Officers walk away out of camera view 2:28:54-57 Officer at cell door raises an arm and looks down at Inmate; Officer appears to point in the direction other Officers had gone from camera view. Inmate appears to look up towards the direction where Officer was pointing 2:28:59 - Inmate gets into a crawling position and begins to move towards where Officer has pointed. The Officer also moves towards this direction walking alongside the Inmate. 2:29:07 Officer then walks ahead of inmate whilst the inmate stops and appears to attempt to stand by lifting his leg and placing his foot on the ground. The inmate attempts this twice, then continues to crawl towards the direction of the Officer 2:29:22 Officer and inmate go out of camera view 2:29:35 1 x Officer comes back into camera view standing still and looking towards the direction the Officers and inmate went out of camera view 2:30:09 3 x Officers come back into camera view and walk out of camera view 2:36:50 3 x Officers come back into camera view and walk out of camera view 2:37:55 - A number of Officers walk into camera view with inmate. Officers holding inmate by either arm. Inmate walking out of camera view with Officers 2:38:01 2:29:20 - A number of Officers walk back into camera view and then out of camera view 2:41:08 2:43:16 Lights go out in Wing No further movement in wing recorded by this camera DISC THREE Time Observations 2:25:16 Lights go on in Wing 2:25:44 3 x Officers walk into camera view towards direction of Cell 219 2:25:54 3 x Officers walk out of camera view 2:27:19 - 1 x Officer walks towards Cell 225, opens cell and walks into cell 2:27:24 2:27:39 1 x Officer walks out of Cell 225 placing blue bags on floor outside of cell door 2:27:43 1 x Officer walks out of camera view in direction of Cell 219 2:27:54 2 x Officers come into camera view walking towards cell 225 and stand either side of cell door - 1 x Officer reaches up towards cell card holder situated on wall outside cell 225 2:29:02 - Inmate appears in camera view crawling on floor in direction of cell 225 - 1 x Officer is walking beside inmate, Officer then walks ahead of inmate towards other officers standing outside of cell 225 2:29:06 2:29:09 Inmate stops and attempts to stand, lifting leg but then continues to crawl towards Officers and cell 225 2:29:13 1 x Officer picks up one blue bag and throws it into cell 225 2:29:23 Inmate reaches cell 225 doorway and continues to crawl into cell out of camera view 2:29:32 1 x Officer stands in cell doorframe looking into cell - w x Officers standing outside cell move towards cell door looking into cell 2:29:37 1 x Officer closes inner cell grill door 2:29:59 Officer closes outer cell door whilst one Officer walks away from cell out of camera view 2:30:11 2 x Officers walk away from cell out of camera view 2:36:49 1 x Officer walks into camera view past cell 225 stops and turns back towards cell 225 2:37:10 1 x Officer opens outer door of cell 225 then opens inner grill door of cell 2:37:25 2 x Officers walk into camera view toward cell 225 2:37:30 1 x Officer picks up blue bag on floor outside of cell 225 2:37:45 1 x Officer walks into cell out of camera view - 1 x Officer walks into camera view towards cell 225 (total of 4 Officers) 2:37:53 1 x Officer walks out of cell 225 with inmate walking by his side - Officer is holding inmate by arm - 1 x Officer takes inmate's other arm and he is guided walking away from cell 2:37:58 2 x Officers walk with inmate out of camera view - 1 x Officer starts to close outer cell door but stops and leaves it open 2:37:03 1 x Officer walks away from cell 225 out of camera view with blue bag - 1 x Officer walks into cell 2:38:20 1 x Officer comes out of cell 225 and closes outer cell door 2:38:32 1 x Officers walks away from cell 225 out of camera view 2:39:20 2 x Officers come into camera view walking towards cell 225 and stand outside cell door. Officers appear to be conversing - 1 x Officer is observed pointing in direction of cell 219 2:39:29 1 x Officer opens outer cell door of cell 225 - 1 x Officer walks into camera view towards cell 225 (total of 3 Officers) 2:39:38 1 x Officer opens inner grill door of cell 225 2:39:44 3 x Officers enter cell 225 2:39:52 1 x Officer remains just inside cell door area - appears to bend forward 2:39:55 1 x Officer fully enters cell 225 ( All 3 Officers out of camera view) 2:40:00 - 2:40:06 Cell inner grill door swings into an almost closed position then opens again 2:40:24 1 x Officer appears at cell door and is facing in towards cell, looking downwards 2:40:29 1 x Officer steps out of cell 225 standing and looking in towards open cell door, then steps towards cell door 2:40:32 1 x Officer steps into cell 225 out of camera view 2:40:51 1 x Officer appears standing just inside cell door 2:41:02 3 x Officers exit cell 225 2:41:04 1 x Officer walks away from cell 225 - 1 x Officer stands outside cell door - 1 x Officer stands at cell door, reaching with one arm in towards cell 2:41:07 1 x Officer walks out of camera view 2:41:09 1 x Officer closes outer cell door - 1 x Officer stands outside cell 2:41:23 2 x Officers walk away from cell 225 and out of camera view 2:42:53 Lights go out in Wing No further movement in wing recorded by this camera [Emphasis added] The Evidence of Mr Schipp 42Mr Gerry Schipp was employed by the Department from January 1998 to June 2012, firstly as Executive Director Finance and Asset Management, then from January 2006 as Deputy Commissioner Corporate Services. 43Mr Schipp's evidence is by Statement (exhibit 28) consisting of 51 numbered paragraphs and 44 attachments in six volumes, comprising 4,434 pages in total. Included in Mr Schipp's evidence is the CCTV recording of the relevant events of 10 June 2010. 44In his capacity as Deputy Commissioner Corporate Services Mr Schipp signed instruments of investigation in June 2010 and was ultimately the final decision maker. 45Mr Schipp's evidence is that on representation by solicitors acting on behalf of the Officers he agreed to suspend the investigation pending the completion of enquiries by NSW Police. 46In December 2010 Mr Schipp wrote to the Officers advising them that the NSW Police had determined not to criminally charge any of them and therefore the disciplinary investigation into allegations of misconduct would proceed. 47Mr Schipp deposed that on 18 May 2011 the Officers were offered the opportunity to view the CCTV footage and listen to the audio record of the events of 10 June 2010 which they declined. 48Mr Schipp received the reports of Shane Bagley, Senior Investigator dated 23 June 2011 for his consideration. 49Mr Schipp's evidence is (exhibit 28 para 28): 28. Having reviewed all of the material presented to me I was in a position to make a determination regarding the allegations and charges made. However I remained concerned that the investigation did not completely deal with the issue of why, as first responding officers, the three officers did not thoroughly investigate what had occurred in the cell to cause Mr Klum to call for assistance. The photographic evidence from the cell the next morning indicated to me that had the officers entered the cell or taken steps to establish the seriousness of the incident (for example by turning on the interior cell light) then a reasonable person may have concluded that Mr Klum may be more seriously injured and acted with greater care and urgency. 50On 21 July 2011 Mr Schipp signed further instruments of investigation initiating further enquiries pursuant to item 9A-11.12 of the Procedural Guidelines. On the same date Mr Schipp wrote to Officer Woelfl providing him with the first investigation report with all attachments and informing him that he had come to the conclusion that Officer Woelfl may have engaged in misconduct and that the severest penalty being considered was dismissal. Officer Woelfl was invited to make further submissions in writing and/or meet with Mr Schipp. 51The correspondence to Officer Woelfl (exhibit 28 attach. 24, 25) particularises the charges against him in the following terms: 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. ·!n 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, · !n 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. A full copy of the Investigation Report including all its annexures is attached to this letter. Please note that this report is not to be shown or disseminated to anyone other than your lawyers or union for the purposes of obtaining advice about this matter. 52Officer Woelfl remained suspended. 53In separate correspondence of 21 July 2011 Mr Schipp wrote to Officer Woelfl care of his solicitor in the following terms: The details of the alleged misconduct relate to an incident on or about 10 June 2090 when you responded to a knock up call to attend the cell of inmate KLUM (MIN: 132350) in that. · You failed to turn the light on to inspect the cell when you arrived. · You failed to inspect the cell at any time during the incident or thereafter. · Despite finding inmate Klum sitting slouched on the floor with blood on his face, you made no proper inspection of his injuries or the cell to assist in your determination of what had occurred. · By failing to properly respond to the knock-up call you have breached your duty of care to inmate KLUM. I have decided to deal with this allegation as a disciplinary matter under section 46(1)(a) of the Public Sector Employment and Management Act 2002 ("the Act'). ... ... If, after I have received and considered the Investigation Report, I form the opinion that you have engaged in misconduct, I may decide to take disciplinary action against you. Below is a list of the possible disciplinary actions under section 42(1) of the Act. Caution Reprimand Fine Reduction in salary Demotion to a lower graded position To be allowed to resign Direction to resign Dismissal (or in the case of an officer on probation - Annulment) 54Officer Woelfl was informed of s 41 of the Public Sector Employment And Management Act 2002 which says: 41 Objects of Part The objects of this Part are as follows: (a) to maintain appropriate standards of conduct and work-related performance in the Public Service, (b) to protect and enhance the integrity and reputation of the Public Service, . (c) to ensure that the public interest is protected. 55Mr Schipp also wrote to Officer Barnett on 21 July 2011 in somewhat similar terms, advising him that he was considering demotion. Officer Barnett was directed to return to his duties at Grafton on 25 July 2011. The correspondence (exhibit 28 attach. 28) advised: I have considered the Investigation Report and I have formed the opinion that you may have engaged in misconduct as follows: 1. That you were grossly negligent in the performance of your duties relating to this incident in that: · You did not assist inmate Klum from cell 219 to 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. 56Also on 21 July 2011 Officer Barnett was advised in correspondence to his solicitors (exhibit 28 attach. 29): The details of the alleged misconduct relate to an incident on or about 10 June 2010 when you responded to a knack up call to attend the cell of inmate KLUM (MIN: 132350) in that: · You failed to tum 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. 57Also on 21 July 2011 Mr Schipp wrote to Officer Pearcey in somewhat similar terms advising him of the conclusions reached and that he was considering demotion. Officer Pearcey was directed to return to duty on 25 July 2011 (exhibit 28 attach. 26). 58This correspondence specifies the allegations against Mr Pearcey as: I have considered the Investigation Report and I have formed the opinion that you may have engaged in misconduct as follows: 1. That you were grossly negligent in the performance of your duties relating to this incident in that: · You did not assist inmate Klum from cell 219 to 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. 59In separate correspondence of the same date, 21 July 2011, Mr Schipp advised Officer Pearcey that he had initiated a further enquiry into additional allegations which were particularised as: The details of the alleged misconduct relate to an incident on or about 10 June 2010 when you responded to a knock up call to attend the cell of inmate KLUM (MIN: 132350) in that: · You failed to turn the light on to inspect the cell when you arrived. You failed to inspect the cell at any time during the incident or thereafter. · Despite finding inmate Klum sitting slouched on the floor with blood on his face, you made no proper inspection of his injuries or the cell to assist in your determination of what had occurred. · By failing to properly respond to the knock-up call you have breached your duty of care to inmate KLUM. 60The additional allegations were subject to dispute proceedings before his Honour Justice Marks in Matter No IRC 1489 of 2011 in which the Officers sought the additional allegations in the correspondence of 21 July 2011 be withdrawn. His Honour refused the application and required these allegations to be dealt with (exhibit 28 attach. 31 TR 18/10/11 P53). 61Mr Schipp wrote to each of the Officers on 28 February 2012 advising them that after consideration of all material before him he had decided that they had engaged in misconduct and, of the eight possible disciplinary actions available, he was considering dismissal. 62The Officers sought further time to reply and notice of any intention to dismiss. Ultimately extensions were granted to 17 April 2012, on which date the final submissions were received from each of the Officers and the applications in these proceedings filed. 63By letter dated 17 May 2012 Officer Woelfl was advised that Mr Schipp had determined that he be dismissed and Officers Barnett and Pearcey were directed to resign. 64The essence of Mr Schipp's decision is put in the following terms (exhibit 28 para 42): 42. Having considered the information provided to me and taking into account the initial investigation and subsequent information regarding the officer's first response to Inmate Klum's alert I concluded that the officers failed in their duty of care as correctional officers and demonstrated such a lack of care that they could no longer discharge their responsibilities as prison officers. 65In the course of cross examination Mr Schipp acknowledged that he was the final decision maker for the Department, and conceded that he did not have experience as a corrections officer. 66Mr Schipp expressed familiarity with the procedural guidelines in relation to disciplinary action. 67Mr Schipp was questioned closely on the basis of the decisions made, the material relied upon, and his application of the procedural guidelines. 68Mr Schipp acknowledged the support and involvement of the Professional Standards Branch, however, he remained the decision maker. 69In response to Ms Lowson Mr Schipp confirmed he did not accept that safety considerations prevented inspection of cell 219, putting (TR 15/8/12 p221): Q. In terms of the first thing that you indicated that the officers in their records of interview and in their submissions pointed to amongst other things to safety issues in entering a cell with an inmate in the cell. Did you accept that that was an appropriate safety protocol for them to follow? A. As I understood it and particularly when there were three officers responding and experienced officers at that, that going into a cell with that level of staffing was quite acceptable. Q. What's the basis of the understanding? A. The basis of the understanding? Q. Yes. A. I had been in cells myself where officers sought to have inmates stand aside in order to enter the cell. If there was a concern about the officers going into a cell and potentially being attacked by the inmate, then there would have been, my assumption could have been an attempt to turn the light on or to illuminate the cell to make some investigations. My concern was around the fact that they're from the evidence provided, from the statements given, from the video evidence that there was no attempt by the officers to establish what was going on or what had gone on in the cell. 70Mr Schipp conceded that his experience had not been on a night watch, however, would not accept that a conversation with Mr Johnson was adequate enquiry to understand what may have occurred and the reason for Mr Klum's condition. 71Mr Schipp conceded that as at June 2010 there were no specific procedures concerning crime scene management in the Department's Operations and Procedures Manual. 72By reference to a collection of reports of incidents (exhibit 25) involving assaults or injuries provided by the Department in response to a subpoena, Ms Lowson sought to establish that the Operations and Procedures Manual is not strictly applied in that not all assaults are reported to Police and a crime scene is not established in every case. 73Mr Schipp accepted this evidence, however, maintained that the reporting and operational failure gain their essence from insufficient investigation of the cause of the knock up call. 74Mr Schipp did not accept that the observation by the Officers that there were no circumstances evident to warrant a further investigation of cell 219 was the appropriate consideration; deposing that the fact that there was a knock up call established the need to investigate the events behind the call, which they failed to do. 75In cross examination (TR 15/8/12 p 253) Mr Schipp accepted that the first investigation found some of the specific allegations not proven and the allegation in the third dot point of Item 1 (that he did not designate an officer to secure the crime scene) against Officer Woelfl was not considered, which he was content to abandon; however, he did not agree with some of the findings of the investigator. Mr Schipp put (TR 16/8/12 pp257, 258): ... ... I can recall not being satisfied with the findings of the investigator as to those charges being unsubstantiated. The rationale that was given by the investigator in finding the unsubstantiation was that the directions had been given by the senior officer and it was not sufficient for the junior officers to go against those directions. In looking back at the record of interview of the discussion around what actual directions were given there was quite a lot of discussion around whether they were directions or instructions and I took the view that the officers had a personal responsibility in terms of the duty of care of the inmates and the humane treatment of those inmates to at least challenge what was reported as a direction by the senior officer not to assist the inmate or indeed not to call medical attention. 76Mr Schipp accepted that Officer Barnett offered assistance to Mr Klum and accepted that on face value this had been rejected, but he maintained the view that Officer Barnett should have done more. The Evidence of Officer Woelfl 77Officer Woelfl's evidence is contained in his statement (Exhibit 6) and testimony in examination and cross examination (TR 11/7/12 pp 37-106; TR 12/7/12 pp 185-187). 78Officer Woelfl commenced employment with the Department in April 1986. He was awarded the Exemplary Conduct Medal for bravery on 11 January 1990 after being stabbed seven times by an inmate. This occurred at Parklea Gaol when an inmate presented himself at the medical centre seeking an unscheduled appointment with the doctor. On being advised by Officer Woelfl that he was not on the list for medical attention the inmate stabbed Officer Woelfl with a sharpened bread and butter knife. Officer Woelfl deposed that during the attack other inmates gathered, shouting "kill the screw dog". 79Officer Woelfl's evidence is that he was subject to other incidents of violence. 80He received a broken nose and black eye when an inmate at Grafton Gaol reacted in a violent manner when informed by Officer Woelfl that he could no longer be a supervisor as he had been caught stealing items from the kitchen. 81Officer Woelfl was on duty when riots occurred at Long Bay Gaol in 1986 and Parklea Gaol in 1988 and was required to extract an inmate from a cell in 2007 when one of two occupants lit a fire. 82Officer Woelfl deposed that he was aware of the risks of entering a cell, recounting an event in 2005 when a senior officer entered a cell on day shift to converse with an inmate and was attacked, as were the officers who came to his aid. 83Officer Woelfl requested and was transferred to Grafton Gaol in 1990 where he has worked from that time with the exception of the period from 1995 to 2002 when he was in the Transport and Court Escort Security Unit in Grafton. 84Officer Woelfl graduated from the Correctional Services Academy in 1986 and completed recall training in 1987. His evidence is that he has been offered limited formal training since that time, limited to normal weapons training and some first aid and relevant on the job training, but only two days training in Classification Case Management in 2008 and one hour in the Incident Reporting Management (IRM) System in 2009. 85Since 2006 Officer Woelfl has been regularly rostered as the night shift senior, which is the most senior officer until a command officer commences work in the morning. He has acted as Assistant Superintendent and Senior Assistant Superintendent on numerous occasions. 86In addressing his general approach to inmates Officer Woelfl deposed (Exhibit 6, paras 17-19) : 17. Correctional officers as a general practice treat all inmates as if they have the potential for violence, and all inmates like they potentially have AIDS and hepatitis C. A lot of the time an officer may not be aware of the circumstances of a particular inmate, including their offences or propensity for violence. 18. From my personal experience I have found that it is often better not to know the offences of the inmate because it may affect how you treat the inmate, for example if their offence is particularly heinous. Also if an inmate is in gaol for a relatively minor or non-violent offence and the officer is aware of this fact they may let their guard down when dealing with the inmate and potentially put themselves and others in danger. The most paramount concerns for any officer is their safety and security, the safety and security of others and the safety and security of the gaol. As a Night Senior I take my responsibilities for the safety of the staff and inmates, and the gaol and myself very seriously. 19. As a correctional officer, in accordance with procedures, I maintain a professional distance from inmates. I have always treated all inmates humanely and equally and dealt with them on a strictly professional basis. In my experience it is important to maintain an emotional detachment from inmates whilst still dealing with them in a professional and fair manner. 87Officer Woelfl deposed that he had devoted his life to being a professional and dedicated correctional officer and followed all Departmental procedures as required. 88Officer Woelfl's evidence described an event early in his career when an inmate called for assistance claiming he was sick, then when removed from the cell he declared that he was pretending as he wanted to get out of the cell. 89Officer Woelfl put that he was sorry that Mr Klum had died and expressed sympathy for the loss suffered by Mr Klum's family. 90Officer Woelfl's evidence sets out the devastating physical, emotional and financial effects upon him and his family as a consequence of his suspension and threat of dismissal. 91The service record and good character of Officer Woelfl is supported by evidence of Mr Michael Carter, an Ambulance Station Officer and Intensive Care Paramedic (exhibit 8); and Mr Pavlovic, a correctional officer of 28 years service, recently retired as General Manager Mid North Coast Correctional Centre (exhibit 9). This evidence was not subject to challenge. The events of 10 June 2010 92Officer Woelfl's evidence is (Exhibit 6, paras 28, 33, 38, 42, 43 45, 48): Night Shift and Night Senior Work 28. As far as I am aware as of June 2010 there was no procedure or protocol specifying when an officer should or should not enter an occupied cell. As a general precaution, to avoid placing themselves or other officers in danger, an officer would only enter a cell whilst an inmate is present if it is absolutely necessary to do so. An example of when an officer may decide it is necessary to enter an occupied cell is to undertake a cell extraction if an inmate refuses to leave the cell. Any cell extraction must be video recorded. Other circumstances include if a critical incident has occurred, or an inmate is physically unable to leave the cell, for example if they are unconscious, or dead, or a fire had occurred in the cell. ... ... 33. I also conduct a perimeter check of the wall. During my shift I conduct a check of the external areas of the gaol. I then check that the main security doors into the common area in the wings are secured and do a visual check of the landings in the mains section. I usually conduct this check on two occasions once at the start of the shift. and once through my shift. The Night Senior on C Watch physically checks that every lock and bolt on the cell doors in the wings are secure. The general procedure in 2010 was that officers did not enter the wings during the B Watch unless it was to attend a knock up call because entering the wings is a potential security risk. The common area in the wings is also covered by the CCTV. I also supervise the other officers who conduct a general patrol every hour or so of "the moat" (which is the sterile zone between the perimeter wall and the wing) and check the security doors and conducts a visual check of the landings. ... ... 10 June 2010 38. On 10 June 2010 the three rover correctional officers were Matthew Barnett, Louise Gilbert, and I. Mr Pearcey was stationed in the detox area in the clinic, but was available for post duties if required. The officer stationed in the monitor room was Richard Woods. ... ... 42. When I attended cell 219 on 10 June 2010 at around 2:20am I made observations of the inside of the cell to the extent possible from outside the cell grill door. The cell grill door is to protect officers that attend the cell, and gives a full view of the inside of the cell and the inmates inside the cell, without the officer having to go into the cell. 43. The light from the outside common area is very bright and shines into the cell, this allowed me to see into the cell and observe: . (a) Inmate Johnson lying on his bunk, apparently in bed; (b) Inmate Klum towards the back of the cell where his bed was located, fully dressed and with his shoes on, and carrying a jumper. 44. To the best of my recollection I had not met Inmate Johnson before the incident. I had only very minimal previous contact with Inmate Klum prior to the incident. To the best of my recollection this was limited to a few occasions when I escorted him, with another officer, down to the clinic to receive his medication at around 7:00am and 8:00pm on a night shift. 45. I asked the inmates generally what had occurred. Inmate Johnson answered that Inmate Klum had grabbed him whilst Inmate Johnson was lying in bed and tried to choke him and that he had pushed Inmate Klum away. (Answer 38 on page 7 of my 11 June 2010 record of interview). When Inmate Klum came to the grill door I noticed he had a small amount of dried blood around his nose, but otherwise showed no sign of injury. 46. Based on the information I had I decided to move Inmate Klum from cell 219. (ii) Assessing Medical Assistance 47. Based on my observations and my assessment of the situation I formed the view that it was a minor push and shove type incident between two inmates. 48. Although Mr Klum showed no signs of obvious injury and did not contradict Inmate Johnson's version of events he did have a small amount of dried blood under his nose. He also: (a) complained of a headache at the door of cell 219; (b) walked from the back of the cell to the front of the cell and then lowered himself to the ground at the door of the cell; and (c) shrugged off Officer Barnett's assistance and crawled across the floor to cell 225. 93Officer Woelfl deposed that none of these factors separately suggested to him that Mr Klum was seriously ill, however, taken all together he formed a decision to seek a medical assessment and he immediately made arrangements for the nurse to attend. 94In cross examination Officer Woelfl could not recall whether he held Mr Klum in his vision the whole time Mr Klum crawled from cell 219 to cell 225 (TR 11/7/12 p 38). Officer Woelfl did not accept the proposition put to him by Mr Murphy that, having regard to the security or safety risks, he would have taken his eyes off Mr Klum knowing that Officers Pearcey and Barnett had their backs to him (TR 11/7/12 p 39). 95Officer Woelfl insisted that he had not acted incorrectly and that he had done nothing wrong. 96Officer Woelfl confirmed that on arrival at cell 219 he observed Mr Klum sitting on the floor alongside his bunk with one arm resting upon it. He asked Mr Klum to come to the cell door, which he initially said he could not do, then stood up and walked a distance a little less than 4.9 metres, then within 30 cm of the door Mr Klum slowly went down to the floor. 97Officer Woelfl held that he told the investigators that when he first saw Mr Klum he concluded that he was suffering some trauma to his face but was not of the view that Mr Klum had been punched in the face and he did not contemplate the possibility that Mr Klum had a broken nose until the nurse informed him that it was a possibility. Officer Woelfl held that he did not contemplate that Mr Klum was the victim of an assault until about an hour after removing Mr Klum from cell 219 when Officer Pearcey informed him that Mr Klum requested Police action in the matter (TR 11/7/12 p 48). 98In later cross examination Officer Woelfl confirmed that, when he had telephoned the Nurse Manager in Sydney whilst Mr Klum was in cell 225, he informed that there had been an assault and that he wanted: "this guy checked out for head trauma because he is a bit sluggish on his feet" (TR 11/7/12 p 50). 99Officer Woelfl put that he had not formed a conclusive view as he was assessing the information given to him by Mr Johnson; he had a view that something had happened and he needed to act on the information he had at the time. 100Officer Woelfl maintained the view that cell 225 should have been processed as a crime scene as he believed Mr Klum had self harmed whilst there. Officer Woelfl put that following Mr Klum's removal to observation he went back to cell 225 to investigate and found three drops of blood on the floor next to the bed. He did not believe, until he was informed of Mr Klum's condition at about 1.30 pm on 10 June 2011, that cell 219 should have been treated as a crime scene as all of the indications suggested only a minor incident (TR 11/7/12 p 50). 101The decision to check cell 225 further was based on what Officer Woelfl observed as an additional injury to Mr Klum in that cell and the blood observed on his jumper when removed. Officer Woelfl considered the prospect of self harm by Mr Klum in cell 225 more serious than the events in cell 219, which he had concluded was just a minor push. 102Officer Woelfl maintained that he could see clearly into cell 219 and did not need to turn on the internal lights, though accepting that it could be done. 103Officer Woelfl put that he believed that the drops of blood on the floor at the door of cell 219 came from a bleeding nose when Mr Klum made the knock up call. 104Officer Woelfl asserted that Officer Pearcey was wrong when he made the following entry in the Incident Report, which he completed on 11 July 2010 (exhibit 28 vol 3 at p1716), stating that Mr Klum was not moving: Inmate Klum was instructed to get up from the floor and come to the cell door. Inmate Klum was moaning and saying he could not do this. 105Officer Woelfl maintained that he inspected Mr Klum for injuries, checked his clothing, and did not see any bloodstains. Officer Woelfl put that it was only after Mr Klum was removed from cell 225 that he noted blood on Mr Klum's jumper. 106Officer Woelfl confirmed that he told Officer Barnett not to touch or pick up Mr Klum on the belief that he did not want assistance, deposing that he gained this belief from Mr Klum's actions. 107Officer Woelfl maintained that had he inspected cell 219 further and observed the amount of blood loss he would have taken Mr Klum directly to observation, but he would not have called an ambulance, he would have called the nurse to asses Mr Klum, as he did. 108Officer Woelfl accepted that had Mr Klum not washed and cleaned himself before presenting at the cell door, decreasing the visibility of blood, after the knock up call he would have investigated further and possibly acted differently including entering the cell. However, his assessment of Mr Klum as he presented gave no cause to consider the events as anything but minor. 109In re-examination Officer Woelfl confirmed that he observed Nurse White attend to Mr Klum and that there was no obvious injury once the blood had been cleaned away from around his mouth and nose, consistent with Officer Woelfl's assessment of the events as minor. 110At around 4.30 am, Nurse White informed Officer Woelfl that Mr Klum had a sharp indent in the bridge of his nose and that swelling was becoming evident. Officer Woelfl formed the view that this injury had occurred in cell 225. The Evidence of Officer Matthew Barnett 111Officer Barnett deposed that he was usually rostered on night shift, had worked with a number of Night Seniors including Officer Woelfl, and was familiar with routines and how the Seniors worked. 112Officer Barnett's evidence at paras 16 and 17 of his Statement (exhibit 14) is: 16. On a night shift the Night Senior is in charge of the whole gaol. A correctional officer must follow his or her directions. There are seven other correctional officers rostered on the night shift. Out of the eight officers rostered on a night shift only four are located in the main area of the gaol known as "the mains" (including the Night Senior and one officer who is designated as the detox officer and is rostered in the clinic). There is one officer on the gate, one in the monitor room, and at that time, one officer was located in the minimum security unit ("the units") and one officer was located in the women's unit. The units and the women's unit are physically separated by an electronic gate from the mains. 17. It is crucial to the effective operation of the gaol to follow the chain of command. If a correctional officer does not follow the chain of command then the whole system is compromised. The only circumstance that I can think of that I would not follow a direction from a Night Senior is if the Night Senior was physically incapable of carrying out their job. 113Officer Barnett deposed that he had never met Mr Johnson before the night of 10 June 2010 and had only minimal contact with Mr Klum having escorted him to obtain medication on a few occasions. 114Officer Barnett's evidence is that he received minimal formal training since commencing as a Correctional Officer, putting that he learned most about the job from working with other experienced officers. 115Officer Barnett has been employed as a correctional officer since January 1995, a period of 15 years prior to this event, and has an unblemished disciplinary record. 116Officer Barnett has been awarded the Commissioner's Commendation for Exceptional Conduct and Dedication to Duty; the 15 year Service Medal; and military medals pertaining to his 12 years military service prior to joining the Department. 117Character references were provided by Mr Trevor Gleeson, retired Senior Assistant Superintendent Grafton Gaol (exhibit 16); and Mr Steven Torcetti, Senior Constable Queensland Police (exhibit 17), attesting to the dedication, good character and standing of Officer Barnett. 118Officer Barnett deposed that Correctional Officers are instructed to treat all inmates as if they could be a potential danger. He put that generally Correctional Officers do not know an inmate's offences; that he had no particular need to as he treats all inmates fairly and equally, maintaining a professional distance. 119Officer Barnett put that his experience is that most inmates respond best to a professional but commanding or authoritative tone and manner. 120Officer Barnett has been assaulted many times whilst working in a correctional environment and has witnessed assaults on other officers. He provided details of an event in which an inmate sought an x-ray to allegedly injured ribs and when the handcuffs were removed the inmate produced a knife and attempted to take the nurse conducting the x-ray hostage. It was consequent upon this event that Officer Barnett received the Commissioner's Commendation for Exceptional Conduct and Dedication to Duty whilst another officer received a Bravery Medal. 121Officer Barnett deposed that following an incident in 2005 when the Deputy Governor entered a cell to converse with an inmate and was attacked, resulting in injuries to officers assisting, a local instruction was issued that officers should not enter a cell with an inmate present unless it was absolutely necessary to do so. Officer Barnett put that the only time an officer would enter a cell is if an inmate is refusing to leave the cell for a cell extraction procedure, or could not physically leave the cell. 122Officer Barnett deposed that working in the court system posed a danger to Correctional Officers, deposing that he was assaulted more often in that environment. Officer Barnett put that it is common for an inmate to "bung it on", feign, or exaggerate an injury to gain attention. 123Officer Barnett put that while working in Court cells he had seen inmates crawl rather than walk and, though not common he had experienced it several times, then get up and walk around particularly after they had been granted bail. The Events of 10 June 2010 124Officer Barnett's evidence is that in his experience the Night Senior always attends a knock up with at least two other officers. 125Officer Barnett described the movement of Mr Klum from Cell 219 to Cell 225 in the following terms (exhibit 14, paras 46, 67): 46. On 10 June 2010 when I attended cell 219 Mr Klum did not have any obvious injuries, he had a small amount of smeared blood around his nose and mouth and on the top of his index finger as if he had wiped his nose. There did not appear to me to be any reason why Mr Klum was not capable of walking. He was also fully dressed and had his shoes and socks on which was an indication to me that he wanted to be moved from the cell. Mr Klum complied with Officer Woelfl's instructions to move to cell 225. 47. After Mr Klum came out of cell 219 and was sitting on the floor I bent down to offer him assistance. Mr Klum shrugged off my assistance, which I took as an indication that he did not want to be assisted. Officer Woelfl then advised me to let him go on his own. I then removed Mr Klum's cell card from cell 219 and took it across to cell 225 to put his cell card in the slot on the wall outside the cell. I was not watching Mr Klum the whole time as he crawled from 219 to cell 225. 126Officer Barnett's evidence is that in 12 years at Grafton he had not encountered the requirement to preserve a crime scene. His understanding is that a crime scene is established only when a serious event occurs and that there was nothing on the face of events of 10 June 2010 to suggest that it was anything other than a minor incident. 127Officer Barnett accompanied Mr Klum to the hospital with Officer Gilbert. Officer Barnett deposed that on arrival Mr Klum was coherent then approximately half an hour later his condition deteriorated, he had a violent seizure, lost consciousness and started convulsing. Officer Barnett had difficulty removing the handcuffs. Officer Barnett stayed with Mr Klum through the CT Scan and afterwards in the emergency room. 128Officer Barnett found the events at the hospital traumatic and they continue to trouble him. He is undergoing medical treatment. 129Officer Barnett expressed sadness at the death of Mr Klum and towards Mr Klum's family for their loss. He also expressed anger and disappointment at the accusation that he was in some way responsible and at the lack of support by the Department. 130In cross examination Officer Barnett confirmed that he did not see any blood on the floor at the door of cell 219 as both Officer Woelfl and Officer Pearcey were standing in front of him. Officer Barnett did not hear anything that Mr Klum may have said to Messrs Woelfl or Pearcey. 131Officer Barnett observed Mr Klum when he exited cell 219, noting the dried blood around his nose and mouth, but did not consider that it warranted further investigation. 132Whilst Mr Klum was on the floor at the entry to cell 219 Officer Barnett took hold of his left arm and attempted to assist him, however, Mr Klum shrugged this off. Officer Barnett confirmed that an insistence by he or the other officers on assisting Mr Klum against his wishes could have been regarded as a use of force. 133Officer Barnett then had his back to Mr Klum, deposing that (TR 12/7/12 p 118): I wasn't aware that he crawled at the time. My first recollection was he walked over. 134Officer Barnett distinguished the lack of assistance to Mr Klum when crossing to cell 225, from the assistance given from cell 225 to the observation area, as the willingness of Mr Klum to be assisted. 135Officer Barnett confirmed that there was no apparent injury to Mr Klum when he came out of cell 219 to warrant further investigation, no blood on his clothes and no physical sign of bleeding. 136Officer Barnett deposed that when he returned to cell 225 he saw blood drop from Mr Klum's eye to the leg of his track pants. 137In cross examination Officer Barnett recalled that was looking directly at Mr Klum when he attempted to get to his feet while crawling from cell 219 to cell 225 (TR 12/7/12 p 126): Q. You observed him attempt to get to his feet and then flop back down on his hands and knees, did you? A. On one occasion, after viewing the footage I recall, yes. Q. You recall at the time you were looking right at him? A. I recall now after looking at the footage, yes. 138Officer Barnett was unable to say whether he would have acted differently by calling an ambulance immediately had he looked into cell 219 and observed the amount of blood loss. 139Officer Barnett put that such a decision was up to the Senior, Officer Woelfl, not him; and he doubted whether he would have made any suggestion to Officer Woelfl. 140In response to a question put to him by Mr Murphy, Officer Barnett put that on discovering a fresh injury on the Officers' return to cell 225, he did not become concerned that he may have previously underestimated the extent of injury sustained. 141The audio tape of Officer Barnett insisting Mr Klum stand up in cell 225 was played in the course of cross examination. Officer Barnett maintained that the manner in which he spoke to Mr Klum was appropriate, putting that his demeanour was consistent throughout his career and in the same circumstances he would address an inmate in the same manner. The Evidence of Officer David Pearcey 142Officer Pearcey usually worked night shift and was primarily rostered in the detoxification (detox) unit, as he was on the night of 10 June 2012. His evidence is that at around 2.20am that night he was in the reception area, overheard the call from Mr Klum and volunteered to assist Officers Woelfl and Barnett in responding. Officer Pearcey deposed that from the part of the knock up call he heard, it sounded as though the inmate had a bleeding nose. 143Officer Pearcey's evidence is that he has attended many knock up calls on night shift, the majority being for very minor reasons such as a complaint about a headache, a request for toilet paper, or a panic attack or hysteria (referred to as a "spin out") in which case the inmate may be brought to the detox unit to be monitored. Officer Pearcey put that it is in a minority of cases that an inmate will knock up because of a serious issue such as a need for urgent medical attention or assault. 144Officer Pearcey put that when he attended cell 219 there was nothing to suggest that the call by Mr Klum was a serious incident. He put that he observed a little bit of blood under Mr Klum's nose, that Mr Klum was dressed in the prison tracksuit with his shoes and socks on, and that Mr Johnson seemed "upbeat and helpful". 145Officer Pearcey deposed (exhibit 18 para 41): 41 I did not understand why Mr Klum started to crawl rather than walk as there did not appear to be any reason why he could not walk. I was puzzled and unsure about the situation. Officer Barnett bent down to offer him assistance. I did not recall this until I saw the CCTV footage in the IRC. Mr Klum shrugged him off and I formed the impression that he did not want to be touched. I recall that after Mr Klum indicated he did not want to be touched Officer Woelfl said "leave him alone" or words to that effect. Mr Klum complied with Officer Woelfl's instruction and moved towards the cell. I then walked over to cell 225 to assist Officer Barnett to get the cell ready for Mr Klum. 146After Mr Klum was brought from cell 225 to the detox unit Officer Pearcey monitored him through the CCTV, observing him walking around in the observation cell. Officer Pearcey deposed that he was extremely frustrated that over two hours of CCTV footage of Mr Klum in the detox unit was taped over and lost. 147Officer Pearcey's evidence is that during the time he was observing Mr Klum and waiting for the nurse to arrive, he checked Mr Klum's medical alerts, deposing that (exhibit 18 para 46): 46. After reading the medical alerts I formed the view that because of his medical alerts, including a history of strokes and the fact he was taking warfarin that the nurse would send Mr Klum to hospital. To be prepared I filled out the section 24 Order to send Mr Klum to hospital. On the section "time to leave the complex" I originally put 3:00am. I then crossed it out as the nurse did not decide to send Mr Klum to hospital until hours later. Mr Klum eventually left for hospital at around 5:30am. I also wrote the time 8am and crossed it out, as at one stage the Nurse was going to send Mr Klum to hospital to have an x ray on his nose when the x ray department opened. 148Officer Pearcey's evidence is that the chain of command is very important in a correctional facility, putting that he would not follow a direction of a senior officer if he considered the direction to be unlawful or resulted in inhumane or ill treatment of an inmate. Officer Pearcey has never had occasion to refuse a direction. 149Officer Pearcey has never entered an occupied cell on night shift or any other time and would not do so unless it was absolutely necessary as he considers it to be an unnecessary risk. 150It is Officer Pearcey's evidence that a crime scene has only ever been established where an inmate has been found deceased in a cell. 151Mr Klum was familiar to Officer Pearcey as he attended the clinic for his medication at approximately 7.30 am each morning, and as Mr Klum was a "protection inmate" he could remain in the detox unit until officers commenced on morning shift at 8.00 am. 152Officer Pearcey's evidence describes the traumatic effect upon him of the subsequent investigation and charges by the Department and the unfair and inaccurate publicity surrounding the matter. 153Correspondence of 17 April 2012 to the Department (exhibit 18 attach. DP-4) setting out Officer Pearcey's defence in respect to the alleged failure to investigate the events in cell 219 more closely makes the following salient points (paras 18-28): 18. Similarly, it should be accepted that our client would not have accepted what Mr Johnson's told Officer Woelfl on what had occurred: a. If Mr Klum's injuries had suggested a serious assault; b. If Mr Klum himself had given a different version of events. 19. Mr Klum apparently took steps which disguised the nature of his injury by getting dressed in his clothes and either having a shower or cleaning himself up, and then not advising Officer Woelfl what had occurred when he was asked by him. 20. Further the report appears to be a very close replica of the report prepared in regards to Officer Woelfl and does not differentiate between evidence given by Mr Pearcey and Mr Woelfl and Mr Barnett. 21. As with the Investigation Report into the first allegations, this Investigation Report is prepared with the benefit of hindsight, and equally inappropriately distorted by the fact of Mr Klum's death'. The use of the words "the deceased" in the Report is evidence of this bias, and demonstrates that the Investigator has examined the circumstances, not from the real-world perspective of what occurred on 10 June, but from a perspective of seeking a scapegoat for a tragic outcome - but an outcome for which our client was not responsible. 22. At the bottom of page 4 and top of page 5 the Investigator concludes that Mr Pearcey had the opportunity "to initiate the cell light to be switched on by way of request ...or in fact by physically doing it himself". The first part of this conclusion does not form part of the allegation, which is directed only at Mr Pearcey's alleged failure to turn on the light - not his failure to ask one of the other two officers to do it. This highlights the wrong approach being taken by the Investigator, who takes no account of the reality that Mr Woelfl was the night senior in charge of the prison on the B watch, and Mr Pearcey was a junior officer. Whilst it is accepted that a junior officer might challenge or overrides a senior officer, it would only be in compelling circumstances where the senior officer's control of a situation was clearly wrong. 23. The Investigator ignores the evidence of Mr Pearcey that he could see Mr Johnson and Mr Klum in the available light when he arrived at the cell, Mr Klum only appeared to have minor injuries consistent with a minor altercation, the light in the common area was very bright and there was no need to turn on the light. 24. The Investigator has altogether failed to recognise the hierarchy of command in prison officers ranks, and in so doing has applied a different and wrong approach to the allegations than that applied to Mr Bagley, who at least understood the limited role for Mr Pearcey, and Mr Barnett having regard to their more junior status. The prison system would quickly descend into disarray if junior officer routinely challenged senior officers, or interfered in the senior officers' control of a situation. 25. The analysis that follows on page 5 of the Report is completely flawed in that it was not quite clear that Mr Klum was unable to walk unassisted. 26. The evidence, when properly balanced, neither supports a conclusion that the cell light "should" have been turned on, but more importantly does not demonstrate how turning on the cell light would have made any difference to Mr Pearcey's subsequent actions. 27. There is no relevant connection established between the turning on of the cell light, and any decision to inspect the cell. In plain language, the cell light is a red herring. If any one of the following matters had occurred, then Mr Klum may have been treated differently: a. If Mr Klum had not washed and changed before the "knock up"; b. I f Mr Klum had refused to come out of the cell, and had drawn the officers attention to the blood spattered bed linen; c. If Mr Klum had told the officers what had occurred; d. If Mr Klum had more obvious injuries. 28. There is no evidence to contradict Mr Pearcey's evidence that, on a minimally manned B watch, it is not usual procedure to enter a cell unless a critical incident had occurred that necessitated entering the cell. This protocol is in place to ensure the safety and security of officers. In that light, it would be highly unlikely that Mr Pearcey would have taken the extraordinary step or overriding the Night Senior's decision and initiate a cell inspection. 154In cross examination Officer Pearcey confirmed that he did not see any blood near the door of cell 219 and that he did not turn on any additional lights in the cell to improve his view. 155Officer Pearcey confirmed that he first saw Mr Klum sitting on the floor and recalled an instruction for Mr Klum to come to the door. Officer Pearcey did not pay particular attention to the next events as he was assisting outside his role of detox officer, however, he was aware that Mr Klum was groaning and complaining of vertigo and headache. Officer Pearcey revealed his lack of medical knowledge, conceding that he did not understand vertigo at the time, thinking it was to do with heights but later learning that it relates to dizziness. 156Officer Pearcey confirmed that Officer Barnett offered assistance to Mr Klum, who he put gave the distinct impression that he did not want to be touched. 157Officer Pearcey was adamant under close cross examination that Mr Klum shrugged off Officer Barnett's attempt to offer assistance and, following Mr Woelfl's instruction to leave Mr Klum alone, there was nothing more he could do. 158Officer Pearcey confirmed that correctional officers are not permitted to medicate inmates and accordingly could do nothing in response to the complaint of headache. 159Officer Pearcey confirmed that he remained unsure about the extent of injury to Mr Klum, putting that: "in prison life one is never certain what's going on" (TR 12/7/12 p152). 160Officer Pearcey confirmed that the only visible sign of injury appeared to be from a nosebleed which did not lead him to suspect that Mr Klum had been punched (TR 12/7/12 P 154). Later, Officer Pearcey conceded that this may have been a probability, however, uncertainty remained which was exacerbated by the fact that Mr Klum did not say he had been punched or otherwise assaulted. 161Officer Pearcey did not observe any blood on Mr Klum's clothes, other than some on his track suit top when he came out of cell 225. 162Officer Pearcey was shown the Police photographs of cell 219 and conceded that had he been aware of the situation shown in the photographs: "there might have been quite a lot more that could have gone on" (TR 12/7/12 p 160). 163Officer Pearcey considered that he did not inspect cell 219, putting that he had no cause to and was not instructed to, so he did not (TR 12/7/12 p 161). 164Officer Pearcey confirmed that after noting additional injury to Mr Klum on returning to cell 225, it did not fall to him to consider a further investigation of cell 219 as he was assisting out of his station at the detox unit and any further inspection would be done by the roving officers. 165Officer Pearcey put that he did not suggest an inspection of cell 219 as that was a consideration for Officer Woelfl, adding that suggestions are not always welcome (TR 12/7/12 p 164). 166Officer Pearcey attended Mr Klum in the observation cell between 2.40 am and 3.17 am when the nurse arrived. In this time Officer Pearcey spoke with Mr Klum for the purpose of completing the Assault Package Questionnaire (exhibit 28 attach. 10 p 1818). It was in this process that Mr Klum indicated that he was assaulted by another inmate, required Police action on the matter, and had no complaint about how he had been treated by correctional officers. 167The Report of Injury completed by Nurse White (exhibit 28 attach 11 p 1821) states: "Injuries noted small laceration R eyebrow". 168Officer Pearcey confirmed that he recorded Mr Klum's answers accurately and in the usual course of events any further action would be carried out by officers superior to him. 169Officer Pearcey commenced at the Corrective Services Academy ("the Academy") on 30 March 1998 and has been employed continuously as a Corrective Services Officer. 170Officer Pearcey has an unblemished disciplinary record prior to this incident and has never been subject to an allegation that he mistreated or failed to provide proper care to an inmate. 171In 2001 Officer Pearcey received a letter of commendation from the Regional Commander and in 2002 a letter of personal thanks from the Governor arising from application of CPR to an inmate for some 30 minutes before an ambulance crew pronounced the inmate deceased. 172Prior to joining the Department Officer Pearcey was in the Navy in both England and Australia for over 30 years, during which time he was awarded a number of military medals. 173Officer Pearcey deposed that the training he received at the Academy and from more experienced officers on the job was to maintain a professional detachment from inmates and to take precautions on the basis that an inmate may have AIDS or Hepatitis C and pose a potential danger. 174Officer Pearcey's evidence is that he was cautioned that he may be deceived or manipulated by inmates as this is a game that inmates often initiate. Officer Pearcey deposed that he was instructed to avoid placing himself or other officers at risk. 175Officer Pearcey has had a number of experiences which reconfirmed the wisdom of his training, including: an attack on him by inmates using plastic milk crates and chairs, spitting and throwing urine at him; an attack by a psychotic inmate when her cell door was opened to allow a telephone call; many occasions when inmates exaggerated or feigned medical symptoms such as chest pains in order to be sent to hospital. 176Officer Pearcey emphasised that he takes inmates at face value and does not assume all inmates who are complaining of illness or injury are exaggerating or "bunging it on", but is naturally cautious. 177Officer Pearcey deposed that he was regarded by Senior Assistant Superintendent Dawson as an officer who could calm inmates down and diffuse situations. 178Character references are provided by Mr Ronald Hubbard, a custodial officer since 1994 (exhibit 20); Mr Bob Noonan, Vice President Maclean RSL Sub Branch (exhibit 21); Mr John Ibbotson, a qualified metallurgist (exhibit 22); and Mr Desmond Plunkett, a Bank Manager (exhibit 23) which all attest to Officer Pearcey's good character and integrity. Correctional Officer Louise Gilbert 179Ms Louise Gilbert provided a report of her involvement in the following terms (exhibit 28 vol 3 pp2236, 2237): I was carrying out my duties as " B " Rover 2 when the following Incident occurred: At approximately 2.40 a.m. I went to 5 wing with 1/C M. Barnett and S.C.O Woelfl to escort inmate 371951 KLUM, to the clinic because the nurse was coming to see him after an alleged assault with an Inmate in another cell. Inmate KLUM was in cell 225, sitting on the floor and had blood on his head and nose, there was a few drops on the floor. Officer Woelfl and Barnett gave orders to inmate KLUM to get up and walk to the clinic but he refused, inmate KLUM was coherent and very uncooperative. Both Officers assisted inmate KLUM to his feet and escorted him to a detox cell. Officer Barnett and Woelfl and myself returned to cell 226 to see if we could find were [sic] inmate KLUM had hurt himself. Both Officer Barnett and Woelfl had said that inmate KLUM did not have those injuries when he was put in the cell. Same [sic] time later, Nurse Mary White entered the gaol. l was in and out of the clinic and on all occasions inmate KLUM continued to be very uncooperative to Officers and nurse Mary, but he was coherent. When nurse Mary had consulted with the doctor that inmate KLUM was going to the hospital, SCO Woelfl told me to go and get ready for a escort to the G.B.H. with Officer Barnett ... ... On the 10th June 2010 I escorted inmate 371957 KLUM to the Grafton Base Hospital with Officer 1/C M. Barnett. We left the gaol at about 5.30 am and entered the A& E at the hospital soon after and KLUM was taken to a bed and seen by a doctor about 15 min later. When the doctor saw inmate KLUM, He complained about having a saw [sic] head and was yelling out to get pain relief. The Doctor said you are getting it now and continued with assessment. Inmate KLUM continued to yell. The Doctor and nurses continued to monitor KLUM for sometime until they saw that he was having some kind of fit. The Doctor put him on a breathing machine and had a C.T. Scan done and they said he had a bleed on the side of his brain. The gaol was contacted and I stayed with Klum until I was relieved by SCO E. Watling . Medical Notes 180Medical notes were produced by the Department in respect to Mr Klum (exhibit 24). These commence from 23 March 2010 and may be described as comprehensive, recording from that time attendance upon Mr Klum by nurses engaged by the Department on some 28 occasions prior to 10 June 2010. 181The medical notes are a confidential exhibit which I have examined closely. 182The record of the observations made by the nurse who attended on 10 June 2010 is consistent with the evidence of the Officers that there was nothing apparent to suggest that the incident was other than minor. 183The medical notes conclude with an Expert Certificate, in accordance with s177 of the Evidence Act 1995 No 25, signed Dr John (Jack) Ashworth, a surgeon at Grafton Base Hospital, expressing the opinion that Mr Klum's injuries were consistent with an acute subdural haematoma. Mr Ian Albert Klum 184Mr Klum had a series of traffic and other offences dating from May 1976 (exhibit 28 vol 3 p 2171) when he was first recorded as being convicted at Parramatta Petty Sessions for supply and use of LSD and use of Indian Hemp and sentenced to nine months periodic detention. Mr Klum's criminal history includes appearances in Brisbane District Court Southport, Coffs Harbour Petty Sessions, Coffs Harbour Local Court, Coffs Harbour District Court, Bellingen Local Court and Tamworth Local Court. 185The majority of Mr Klum's offences relate to driving whilst disqualified. There are some convictions for falsifying a licence and one of causing grievous bodily harm. 186Mr Klum's behaviour and the cause thereof is discussed in a report by Dr Igor Petroff (exhibit 28 vol 3 pp 2166-2170), a Consultant Psychiatrist who examined Mr Klum on 10 March 2010 at the request of Mr Klum's legal representative, Mr Todd Ritchie of Coffs Harbour. 187Dr Petroff reported that Mr Klum lived on a 10 acre property in Woolgoolga with his mother, who was in her eighties, and a farm labourer who also acted as a minder and driver for Mr Klum. 188Dr Petroff 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. Dr Petroff reported that Mr Klum told him 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. 189In recording Mr Klum's history Dr Petroff noted that Mr Klum gave him the impression that he became overwhelmed with stress and panic and felt he had to drive somewhere. 190Dr Petroff's report includes the opinion: I have absolutely no doubt that Mr Ian Klum has suffered a stroke or series of strokes as a result of blood clots arising from his cardiomyopathy (fat flabby heart that throws off blood clots). I am absolutely certain that it is his organic brain damage that caused his multiple offences. 191Dr Petroff's report was not available to any of the participants on 10 June 2010, however, I consider it is relevant to a consideration of whether Mr Klum was or was not open to assistance from the Officers when crawling from cell 219 to cell 225; or whether, had the Officers insisted upon assisting him, the situation could have been worse. 192The fact that Mr Klum had organic brain damage was not known to the Officers. Documents placing Mr Klum at the lowest security level were not completed by Departmental process which is Sydney based until 10 June 2010 after Mr Klum had been taken to hospital. Submissions 193Ms Lowson's primary submission is that the Officer's actions, which were entirely consistent with their duties in responding to the call, in removing Mr Klum from cell 219, immediately calling for medical assistance and assisting the nurse and ambulance officers to care for Mr Klum were completely overlooked in the Department's consideration of disciplinary action. 194Ms Lowson submitted that Officers Barnett and Pearcey were not in charge, they did not make decisions, they followed orders and were legally obliged to do so by the process of section 251 of the Crimes (Administration of Sentences) Regulation 2008 which require that an officer must obey all of the lawful and reasonable directions given by the General Manager which, in these events was Officer Woelfl as the most senior officer on the shift and in attendance at the time. 195By being on suspension the Officers have lost earning potential of several thousand dollars per annum arising from lost opportunity to work overtime, loss of annual leave loading, opportunity to act in higher grade or pursue promotional opportunities. 196Mr Murphy submitted that termination of employment would not be harsh, unreasonable nor unjust. Mr Murphy put that the misconduct which grounds the basis of dismissal is clearly the lack of care and the lack of attention displayed by the Officers to an inmate who was clearly in distress. 197Mr Murphy further submitted that had the Officers properly inspected Mr Klum's injuries and properly inspected cell 219 to determine if there was any evidence of what had occurred, they would have found broken glasses, indicative of a punch in the face, and considerable blood loss which would have informed more immediate action to have Mr Klum taken straight to hospital rather than wait for the nurse to arrive. 198Mr Murphy put that it is clear from the manner in which Mr Klum was treated from the time he flopped out of the cell, as he crawled across the floor, tried to get to his feet and flopped back down again, that he needed and should have been given assistance. 199Mr Murphy submitted that the notion that Mr Klum was pretending, or "bunging it on" and the reluctance to enter an occupied cell, is a post event reconstruction which is untenable, demonstrably so from the point the Officers, with a fourth identified as Louise Gilbert, returned to cell 225 to collect Mr Klum. 200Mr Murphy put (TR 10/07/12 p25): 25 Mr Barnett went straight in. He didn't-seem to be overly concerned that he was going to be assaulted by this fellow who couldn't stand up. They had four officers at that point. They saw more blood there; not a lot. I think "a couple of drops" is the description. They didn't then go back to 219 thinking "Something is amiss here, this man is more seriously injured than is consistent with being pushed," which is what the other inmate had said. They didn't bother to go back and have a look. There was four of them at that point, with one inmate, Johnson, in cell 219. Consideration 201I have reviewed the evidence and examined the available CCTV footage carefully. 202There is no allegation that the actions or inaction of the Officers contributed to Mr Klum's injuries or were in any way contributory to the outcome. A suggestion that, had they investigated and been able to inform the nurse of the blood loss, Mr Klum would have been taken to hospital earlier which may have resulted in a different outcome, does not rise above speculation and is not supported by the medical evidence. 203The contested issues are to be decided on the civil test of probabilities (see Briginshaw v Briginshaw (1938) 60 CLR 336). 204In applying that test I conclude that Mr Klum was offered assistance, which he declined, appearing determined to move from cell 219 to cell 225 of his own volition. Mr Klum struggled to achieve this, making two unsuccessful attempts to stand up before continuing on his hands and knees, clutching his jumper in one hand. 205On close observation of the CCTV footage it is apparent that at times none of the Officers were watching Mr Klum. Having regard to their testimony that they thought he might be not genuine in presenting his physical incapacity and was "bunging it on", and the evidence that close regard should be had to inmates to avoid a surprise attack, their failure to observe Mr Klum is concerning. 206The Officers were uncertain of Mr Klum's capability and should have kept him under observation. 207The medical and psychiatric history of Mr Klum as described by Dr Petroff suggests a propensity to erratic behaviour. Mr Klum refused assistance and did not make further request for help. Whilst informed minds may come to different views of what the Officers may have or should have done, allowing Mr Klum to proceed as he chose does not amount to serious or wilful misconduct. 208Mr Schipp could not suggest what they should have done, putting only that they should have done more. 209It is clear from an examination of the CCTV footage that Mr Klum suffered no injury or further distress during this time. 210The fact that Mr Klum did not stop or seek assistance supports a conclusion that, had assistance been forced upon him at the time, further resistance by him would have made circumstances worse. 211It is reasonable in my view that on Mr Klum's refusal of assistance the Officers allowed him to commence movement. Mr Klum made no complaint about the actions of the Officers. 212Mr Klum was placed in cell 225 while approval to call the nurse was sought. It is not appropriate to be critical of the Officers in this regard. The evidence is that they are not qualified or authorised to provide medical attention. The Department's decision to remove the night nurse dictated their actions. 213I note that whilst he was in cell 225 Mr Klum put on the jumper he carried from cell 219 which supports a conclusion of functional capability. 214I consider in the circumstance of Mr Klum's refusal of assistance it was quite reasonable for him to be given some little time to compose himself. 215The manner of Messrs Woelfl and Barnett when they returned for Mr Klum appears harsh and aggressive, however, when compared to the tone of voice and demeanour of the Officer in the control room, the authoritative tone adopted by Mr Barnett was consistent with the structure of discipline in a correctional facility. Whatever may be thought of that, or the need for change, it is not a matter which rests solely on these Officers in the circumstances under consideration so as to support termination of their employment. 216It 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. 217This 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. 218I 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. 219The 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? 220The 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. 221I 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. 222In the event Mr Johnson was uncooperative, and there is no evidence to suggest he was other than cooperative, he could have been moved to another cell for the purpose of discovery. In the event Mr Johnson became uncooperative and declined to leave the cell, there are clear procedures described by the Officers in their evidence. 223It is put in the defence of the Officers that they did not investigate further as the only sign of injury was some dried blood under Mr Klum's nose and a couple of drops of blood at the door of cell 219. 224Exhibit 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. 225Exhibit 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. 226Proper observance of Mr Klum would have revealed the amount of blood on his person and provided a basis for further investigation. 227Officer Pearcey is in a different category. He was called from his regular duties as detox officer to assist Officers Woelfl and Barnett. He was clearly the junior participant and obliged to follow the direction of Officer Woelfl. Officer Pearcey was at no time harsh or aggressive with Mr Klum and was in fact the Officer who attended to him in an appropriate manner and demeanour in the observation area. 228I accept that Officers Pearcey and Barnett had no capacity within the chain of command to initiate a search of cell 219 or challenge the decisions of the senior officer, Officer Woelfl. SUMMARY OF FINDINGS IN MATTER IRC 506 OF 2012 - OFFICER WOELFL 229In July 2011 Mr Schipp advised Officer Woelfl that he was considering dismissal in respect to failure to establish a crime scene and other matters set out above (para 49) and additional charges relating to failure to inspect cell 219. 230The most serious charge laid against Officer Woelfl is that he was grossly negligent in the performance of his duties in not assisting Mr Klum from cell 219 to cell 225 and leaving him there for eight minutes when it was clear that he required medical attention. 231I find these allegations not substantiated on the evidence. 232Mr Klum was offered assistance, which he refused. It became obvious to the Officers present that Mr Klum did not want to be touched. This attitude is consistent with the fear and anxiety Mr Klum told Dr Petroff that he experienced in gaol. 233It is entirely probable that, had the Officers pressed assistance upon Mr Klum against his will, he may have resisted, making matters worse. 234The charge of misconduct in leaving Mr Klum in cell 225 for eight minutes is not sustained on the evidence. 235Officer Woelfl acted immediately to obtain medical assistance for Mr Klum. The fact that he had to telephone for approval and then wait for the nurse to arrive is a matter of Departmental procedure, not the construction of Officer Woelfl. 236Having regard to the uncontested fact that correctional officers are not permitted to render medical assistance, Officer Woelfl had no option but to call for assistance. 237The evidence is that calling directly for an ambulance is a rare and unusual event and that the standard operating procedure is to call the nurse. 238On close examination of the CCTV images of Mr Klum moving from cell 219 to cell 225 it is clear that he was not injured in this process. 239It is appropriate to make the distinction that Mr Klum was not made to crawl, he was allowed to crawl, and that this was limited to the movement from cell 219 to cell 225. 240It was entirely reasonable for Mr Klum to be given a brief time in cell 225 to compose himself prior to the next part of the move to the observation cell, which included navigating a stairwell, for which Mr Klum was afforded assistance which by then he was prepared to accept. 241Officer Woelfl was faced with a difficult set of circumstances and made judgements as he was required to do, which are supportable. 242The remainder of the charges against Officer Woelfl address the failure to investigate cell 219, establish a crime scene, and reporting of the incident. 243I accept the evidence of Mr Schipp that all of these matters have their foundation in the failure to make a proper observation of cell 219. 244As 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. 245Failure 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. 246The Department has a range of sanctions open to it and of those I determine, having regard to all of the circumstances, including the exemplary service record of Officer Woelfl, that demotion to a lower grade is the appropriate penalty. SUMMARY OF FINDINGS IN MATTER IRC 505 OF 2012 - OFFICER BARNETT 247The decision of Mr Schipp in July 2011 that Officer Barnett return to duty on 25 July 2011 and be subject to the disciplinary penalty of demotion for failing to assist Mr Klum from cell 219 to cell 225 and leaving him in cell 225 for eight minutes when he required medical attention, denotes that the sanction of dismissal is not applied in respect to these matters. 248The difficulty with these charges is that Officer Barnett had no capacity to instigate an inspection of cell 219 of his own volition, nor was he directed to do so. 249Officer Barnett was not responsible for placing Mr Klum into cell 225, or for the decision to leave him there for a short period while medical assistance was called. 250Officer Barnett was under the direction of Officer Woelfl at all times and was required to follow instructions. 251While not part of any of the formal charges conveyed by Mr Schipp in his decision that Officer Barnett be dismissed, there was severe criticism of the way in which Officer Barnett spoke to Mr Klum when he and other officers returned to transfer Mr Klum from cell 225 to the observation area to await arrival of the nurse. 252I consider Officer Barnett to have been overly severe and unsympathetic in this exchange. 253I accept the evidence of Officer Barnett that he does not change his demeanour from that of firm authority as such an attitude is necessary to maintenance of order and discipline within the correctional centre. 254This may be so, however, I find that Officer Barnett should have assessed the situation better and that his tone and demeanour was inappropriate. 255This is not conduct that warrants termination of employment. 256I consider the appropriate disciplinary action available to the Department to be that of a caution. SUMMARY OF FINDINGS IN MATTER IRC 504 OF 2012 - OFFICER PEARCEY 257Mr Schipp's decision that Officer Pearcey return to duty on 25 July 2011 and be subject to the disciplinary penalty of demotion for failing to assist Mr Klum from cell 219 to cell 225 and leaving him in cell 225 for eight minutes, denotes that the sanction of dismissal is not applied for these matters. 258The subsequent investigation into failure to investigate the circumstances by conducting an inspection of cell 219 took the sanction to dismissal. 259The difficulty with this view is that Officer Pearcey had no capacity to instigate an inspection of cell 219, nor was he directed to do so. 260Officer Pearcey was not responsible for placing Mr Klum in cell 225 or for obtaining medical assistance. He was under the direction of Officer Woelfl at all times and required to follow instructions. 261Having regard to his limited role in the events, his service record, admissions and genuine contrition, I conclude that termination of Officer Pearcey's employment would be harsh, unreasonable and unjust. 262Officer Pearcey is to be returned to duty as a Corrective Services Officer at Grafton Correctional Facility. 263I find that Officer Pearcey is not guilty of misconduct and no sanction should apply to him. 264Further to Officer Pearcey's credit is the care and attention he offered Mr Klum in the observation area pending the arrival of Nurse Whyte and the assistance provided to her for the benefit of Mr Klum. ORDERS 265The Commission makes the following orders pursuant to s 89(7) of the Industrial Relations Act 1996: (1) In Matter No IRC12/504 the Department of Attorney General and Justice - Corrective Services shall not terminate the employment of Officer David Pearcey arising from the events subject to these proceedings. Officer Pearcey is to be returned to employment as a Corrective Services Officer with the Department of Attorney General and Justice - Corrective Services at Grafton Correctional Facility. (2) In Matter No IRC12/505 the Department of Attorney General and Justice - Corrective Services shall not terminate the employment of Officer Matthew Barnett arising from the events subject to these proceedings. Officer Barnett is to be returned to employment as a Corrective Services Officer with the Department of Attorney General and Justice - Corrective Services at Grafton Correctional Facility subject to a caution in respect to conduct. (3) In Matter No IRC 12/506 the Department of Attorney General and Justice - Corrective Services shall not terminate the employment of Officer Richard Woelfl arising from the events subject to these proceedings. Mr Woelfl is to be returned to employment as a Corrective Services Officer with the Department of Attorney General and Justice - Corrective Services at Grafton Correctional Facility subject to demotion to a lower grade. 266I so order. ********** 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: 28 November 2012