Industrial Relations Commission New South Wales Medium Neutral Citation: Redmond v Director General, NSW Department of Health, on behalf of the Ambulance Service of New South Wales [2012] NSWIRComm 147 Hearing dates: 17/07/2012 Decision date: 14 December 2012 Before: Walton J Vice-President; Backman J; Bishop C Decision: (1) Leave to appeal is granted; (2) The appeal is allowed; (3) The order made on 13 October 2010 is quashed; (4) The matter is referred to a Member of the Commission (allocated by the President) to be determined in accordance with this decision. Catchwords: APPLICATION FOR LEAVE TO APPEAL AND APPEAL - ambulance officer dismissed from employment for misconduct - allegation of misconduct concerned administration of fentanyl intravenously without authorisation - appellant applied to Commission for relief against unfair dismissal under Pt 6 of Ch 2 of the Industrial Relations Act 1996 (the Act) - application dismissed - whether adequate reasons provided by Commissioner - content of reasons considered - whether Commissioner was obliged to provide reasons - whether wrong approach to issue of whether misconduct occurred - consideration of scope and effect of a remitter under s 192(1) of the Act - orders Legislation Cited: Ambulance Services Regulation 2005 Evidence Act 1995 Government and Related Employees Appeal Tribunal Act 1980 Industrial Relations Act 1996 Public Sector Act 1979 Workplace Relations Act 1996 (Cth) Cases Cited: Ambulance Service of NSW v Buchtmann [2007] NSWIRComm 18 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 CGEA Transport Limited T/as Southtrans v Transport Workers' Union of Australia [2001] NSWIRComm 287; (2001) 110 IR 211 Commissioner of Police v Evans [2006] NSWIRComm 170 Director of Public Employment, by his agent the Director-General of the Department of Juvenile Justice v Public Service Association (on behalf of Brown) (2008) 184 IR 134 Edwards v Giudice (1999) 169 ALR 89 Lee v Energy Australia (No 4) [2011] NSWIRComm 120 Lord v Flight Centre (No 2) [2006] NSWIRComm 282 Mifsud v Campbell (1991) 21 NSWLR 725 Monier PGH (Holdings) Limited v Horsey and Another (1998) 86 IR 63 Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 16 FCR Public Employment, Office Department of Attorney General and Justice (Corrective Services NSW) v Silling [2012] NSWIRComm 118 Public Services Board (NSW) v Osmond (1986) 159 CLR 656 Soliman v University of Technology Sydney [2012] FCAFC 146 Soliman v University of Technology, Sydney [2010] FWA 8639 Soliman v University of Technology, Sydney [2011] FWAFB 1427 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Spillard v Patrick Stevedores Holdings Pty Ltd (2010) 193 IR 184 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 Webb v Goulburn Masonic Village [2004] NSWIRComm 258; (2004) 136 IR 309 Category: Principal judgment Parties: Peter Redmond (Appellant) Director General, NSW Department of Health, on behalf of the Ambulance Service of New South Wales (Respondent) Representation: B D Dooley SC with T R Edwards of counsel (Appellant) S J E Prince of counsel (Respondent) Harris Wheeler Lawyers (Appellant) Lander & Rogers Lawyers (Respondent) File Number(s): IRC 1688 of 2011 Decision under appeal Citation: Peter Redmond and Director General, NSW Department of Health, on behalf of the Ambulance Service of NSW [2011] NSWIRComm 1051 Date of Decision: 2011-10-13 00:00:00 Before: Tabbaa C File Number(s): IRC 428 of 2010 DECISION 1On 14 May 2010, Peter Redmond ("the appellant") was dismissed from his employment as an ambulance officer by the Ambulance Service of New South Wales ("the respondent"). The appellant sought reinstatement to his former position under the provisions of Pt 6 of Ch 2 of the Industrial Relations Act 1996 ("the Act"). 2The application was heard by Commissioner Tabbaa who dismissed the application. Mr Redmond has appealed against the decision on a number of grounds, although, during oral hearing it became apparent that the focus of the appeal was upon the adequacy of reasons provided by the Commissioner for the finding that the respondent had satisfied its onus of proving that the appellant had "seriously misconducted" himself. Background 3The allegations of misconduct arose in relation to an incident that occurred on 8 November 2009. At that time, the appellant was classified as a P1 level paramedic. He attended premises at Baulkham Hills in order to treat a patient, Mr B, for lower back pain. He was accompanied by a driver, Amanda Horgan, who was also a P1 level paramedic. According to the appellant, Mr B exhibited symptoms consistent with severe lower back pain. He first administered methoxyflurane via an inhaler. However, judging Mr B's pain to be still quite severe he offered him a choice of two narcotics, morphine or fentanyl. According to the appellant, Mr B said that morphine made him sick and he opted for fentanyl. The appellant said he administered the fentanyl intranasally using a mucosal atomising device ("MAD"). Ms Horgan left the room in order to retrieve an ambulance stretcher whilst the appellant was carrying out this procedure. When she returned the appellant was in the process of cannulating Mr B's right hand. He then flushed the cannula with a saline solution. The appellant, in his affidavit, explained his reason for cannulating Mr B. He described cannulation as a routine operation employed as a safeguard in order to facilitate an immediate response to a patient who may have a severe allergic reaction to the drug being administered. He said that part of his procedure when cannulating was to flush the cannula with the saline solution to clear it of any blood, so that any risk of blood clotting and causing an embolus is averted. 4The appellant said that after a few minutes Mr B's pain was relieved and he was able, with assistance, to walk to the stretcher. Shortly after, Ms Horgan, with the appellant as the passenger, conveyed Mr B by ambulance to Norwest Private Hospital. 5The appellant also filled in a Patient Health Care Record ("PHCR") upon arrival at the hospital. The PHCR, numbered J930203, was included in the appeal books. It is somewhat difficult to read, although some details are reasonably clear. It contains a description of Mr B's symptoms and the treatment administered to him. According to the PHCR, at 11.28am, Mr B received 3ml of methoxyflurane via an inhaler, followed at 11.35am by 180 mcgs fentanyl administered intranasally. The signatures of both the appellant and Ms Horgan appear on the document. 6Ms Horgan, some time in the period 8 to 11 November 2009 said she made a notebook entry detailing her recollection of what she said had occurred at Mr B's premises on 8 November. She said she drew up 0.4ml of fentanyl (120 mcgs) (in a syringe). The appellant inserted a cannula. She said she "put the atomiser on" (presumably meaning she attached it to the syringe) at which point the appellant removed it, saying, "I'll show you a little trick". According to her, he then proceeded to dilute the fentanyl and "gave an unknown amount IV" (intravenously) to Mr B. He then administered "another unknown amount IN" (intranasally), saying to Ms Horgan "I'll explain later". In her file notes she also recorded a later conversation she said she had with the appellant. The portion of the file note reads as follows: When we were sitting in the car afterwards redo tried to explain how the dose works saying "he had measured out the doses before to know what he was giving, he also said that the way we give it is crap. It's surposed (sic) to be given IV, he stated that he had spoken to a doctor about it who he claims also thinks we should give it IV. He also stated "I trust you not to say anything" and "you just have to be careful who you do it infront (sic) of". He also stated that by giving it IN as well if the Pt was ever asked they would say yes I had it IN. I then said "thats just to cover your arse" he said "well yeah". 7It should be explained at this point that the preparation of fentanyl (which is a synthetic, short-acting opioid analgesic) used by ambulance officers is intended for intranasal use only. According to Graham John McCarthy, Executive Director, Chemical Governance, employed by the respondent, the strength and composition of fentanyl for intranasal use is different from its intravenous preparation. Intravenous fentanyl is not approved by the Medical Advisor of Ambulance and there are no intravenous preparations available within Ambulance. The concentration of fentanyl for intranasal use is substantially stronger (six times stronger) than the concentration of fentanyl for intravenous use. In an affidavit prepared for the proceedings before Commissioner Tabbaa, Mr McCarthy referred to the risks associated with the intravenous administration of fentanyl, principally designed for intranasal use, as follows: The alleged action of intravenous administration of a preparation specifically designed for intranasal use, marked not for injection and which has a concentration six times higher than the intravenous preparation, presents a significant risk to the patient's safety. Patient safety is compromised by: (a) the administration of a fluid not designed in its sterility for intravenous use; (b) administration of a concentrated opioid analgesic not designed for intravenous use; (c) administration of a fluid with a composition different to Fentanyl that is designed for intravenous use; and (d) the administration of an unknown quantity of highly concentrated opioid analgesic intravenously. 8On 11 November 2009, Ms Horgan approached a senior officer, Officer Maguire, stating "Reddos given IV Fentanyl". She said she was crying and quite upset. Officer Maguire contacted Officer Stuart Gourlay by telephone and handed the telephone to Ms Horgan. Officer Gourlay recorded what Ms Horgan said to him in a file note as follows: Amanda Horgan stated that on Saturday the 8th of November she was working with A/O Peter Redmond. They were attending a case of a male lying on the floor with back pain at XXXXXXXX at Baulkham Hills. A/O Redmond was treating. Amanda stated she assisted treating with Peter by drawing up 0.4mls of Fentanyl in a syringe, attached the MAD and handed it to Peter for administration. Amanda stated that Peter said "I'll show you a little trick". He cannulated the patient, took some saline and diluted the initial dose of Fentanyl handed to him by Amanda to an unknown amount. He then administered the diluted Fentanyl intravenously. Amanda then witnessed him drawing up a second dose of Fentanyl, did not check the amount with Amanda, and administered it via intranasal route. Amanda states that he then stated "I'll explain it in the car". In the car Peter stated to Amanda "that he had done a lot of reading about it and that we should be giving it intravenously". "You just need to follow it up with an intranasal does so if later questioned the patient will state that a drug was given up the nose". Amanda stated that he said he could only do this in front of people who wouldn't tell. His PHCR did not reflect the drug dose or route given. Also according to Amanda, a variation to Clinical Practise was not filled in. Amanda stated she did not do "straight talk" as she was initially intimidated by his comments and treatment. 9It appears that a short time later, on 12 November 2009, Ms Horgan completed an Incident Information Management System ("IIMS") on the computer with the assistance of Officer Maguire. Beside the sub-heading "Incident Description", Ms Horgan gave the following account: Pt had 10 out of 10 back pain officer Redmond commenced analgesia with methoxyflurane. According to the phcr there was minimal affect with the methoxyflurane and officer Redmond requested fentanyl to be drawn up. I drew up 0.4mls (120 mcgs) and attached the atomiser and handed the complete unit to officer Redmond. Officer Redmond then removed the atomiser and drew up 0.9% nacl in the same syringe that had the fentanyl in it. Officer Redmond then administered a portion of this solution IV. the remainder of the syringe was then given IN. 10It may be observed at this point that a comparison between Ms Horgan's account of the incident in the IIMS and Officer Gourlay's record of Ms Horgan's account to him over the telephone reveals that the accounts are inconsistent in at least one significant respect. In Officer Gourlay's file note Ms Horgan is recorded as stating that the appellant administered one dose of diluted fentanyl intravenously and thereafter drew up a second dose of fentanyl which he administered intranasally. In contrast, the IIMS refers to one dose of fentanyl (120 mcgs) diluted with sodium chloride and administered intravenously with "the remainder of the syringe" administered intranasally. In her statement prepared for the proceedings before Commissioner Tabbaa, Ms Horgan provided an explanation for the inconsistent accounts. In relation to the contents of Officer Gourlay's file note she said: I deny having said that there was a second amount of Fentanyl drawn into the syringe ... as it was the single 0.4ml dose of Fentanyl which was diluted and administered both intravenously and then intranasally. There was only a total of 0.4mls/120 mcg in the syringe used for treatment of the patient that I saw given, however it was written up on the casesheet that the patient received 180 mcgs. 11On 27 November 2009, the Chief Executive of the respondent, Greg Rochford, wrote to the appellant advising him that he had received "an allegation" of misconduct which he had decided would be dealt with as a disciplinary matter under clause 18(1)(a) of the Ambulance Services Regulation 2005. The appellant was also advised that an investigator, Fiona Leitch, had been appointed to investigate the allegation and prepare a report. While this process was being undertaken, the appellant was advised that he would be removed from on-road duty and placed on alternative duties with base pay. The letter set out six allegations of misconduct, all of which concerned the alleged intravenous administration of an unknown dose of fentanyl to Mr B by the appellant on 8 November. These allegations were: 1. On 8 November 2009 at Baulkham Hills you diluted an unknown dose of Fentanyl with a saline solution; 2. On 8 November 2009 at Baulkham Hills you administered a diluted dose of Fentanyl to a patient, Mr Michael Barrow; 3. On 8 November 2009 at Baulkham Hills you administered this diluted dose of Fentanyl intravenously to Mr Barrow; 4. On 8 November 2009 you contravened the Pharmacology Protocol 225 for each of the above allegations; 5. On 8 November 2009 you incorrectly completed the Patient Health Care Record J930203 stating that 180 ug of Fentanyl had been administered to Mr Barrow when you would not have know (sic) the dosage that was delivered; 6. On 8 November 2009 you sought to deceive by stating on the Patient Health Care Record J930203 the Fentanyl was represented as being administered via the Route "I/N", meaning use of the intranasal kit. 12Ms Horgan was interviewed by Ms Leitch on 9 December 2009. Ms Horgan said that she drew up 0.4 mcgs of fentanyl and attached the atomiser. While she was drawing up the fentanyl she said the appellant inserted a cannula into Mr B's right hand. The appellant then asked her for a flush and he drew up an amount of flush into the syringe. She was asked by Ms Leitch: "Did you then see the syringe of Fentanyl"; to which she replied: "Again, no I didn't". She said the appellant then administered the fentanyl intravenously, re-attached the atomiser and administered an unknown amount of fentanyl to Mr B intranasally. She said she did not witness any further fentanyl drawn up for Mr B. After Mr B had been taken to hospital, and while the appellant was completing "his paperwork", Ms Horgan recounted the following discussion she said she had with the appellant: ... he told me that - started to tell me about the Fentanyl and tried to explain the doses that he'd drawn up. I just said, "Look, I don't understand what you're trying to tell me, you know, I don't know what you're talking about", and he said that how he thinks it should be given, it works more effectively, he discussed it with a doctor from somewhere I can't remember the doctor's name and that the way he gives it he's sure it should be given IV and that you just need to be careful who you do it in front of and he said - and then you have to give some up the nose, so that if patient's asked whether they have intranasal Fentanyl they say yes and I said I have to swear - "that's just to cover your arse". 13The patient, Mr B was interviewed shortly after on 15 December 2009. Mr B recalled being given medication in a green tube (the methoxyflurane). He was then asked the following questions to which he gave the following responses: Q. Fair enough. Do you recall what action occurred next? A. I remember them checking my legs to make sure they were - that I had feeling in my legs. I'm not sure if they found any problems or if they mentioned it, I don't remember. The next thing that I do remember was putting some sort of medication in my nose and asking me to shoot it up my nose apparently to make it work. Q. At any stage were you given a needle of any description or a cannula anywhere? A. They put a cannula in the back of my hand which is the part I wasn't sure of if they put the cannula in or gave me the nasal medication first but my wife told me that that was the nasal medication that was my first. Q. Let me just go back to that, you've been given the whistle that you inhaled from? A. Yes. Q. And then a device was placed in your nose? A. I'm not sure whether it was a device, they put some sort of chemical, some sort of medication in my nostril. 14Mr B was also asked if he recalled anything being injected "into that cannulation site, into the device in the back of your hand". He replied, as follows: "Yes and I also asked him, I think, at some time what it was, they said it was a flush". 15Mr B was again asked about the sequence of events: "So you're not sure in what order those three occurred?" Mr B replied, as follows: A. I definitely know the whistle was first. I wasn't sure whether the nasal or medication or the cannula was done next but my wife tells me that the nasal medication was next and then (indistinct). 16Mr B also said that his level of pain "improved during the process", and that by the time he got into the ambulance he was experiencing "very little pain". 17Mrs B was not interviewed until 20 April 2010. She said she could not remember "specifics". She recalled "the whistle" (the methoxyflurane). She also recalled a cannula being inserted into Mr B's arm, not his hand and "something" being administered to Mr B intranasally, although she could not recall the precise sequence of events. She could not recall any other treatment given to Mr B at that time. She said that after she returned home she found "the syringe" which she said was empty, and she threw it away. The following exchange also took place during the interview: Q: Okay. And then the male officer has asked the female, after he's put the cannula in, asked the female for something. A: Something. Yeah. Q: And she's handed him. A: The something. Q: The something, yes, okay. Um did you see I know this is difficult if you are in and out of the room, anything happen to that syringe before it was inserted into the cannula or if there was anymore, you know, adjustments happening? A: No I don't think, no I can't remember if anything happening to it. 18The appellant was interviewed on 18 December 2009, during which each of the six allegations, set out in Mr Rochford's letter of 27 November, were put to him. The appellant explained that he could not recall a number of precise details concerning his treatment of Mr B on 8 November. He did say that he administered the dose of fentanyl intranasally. He denied, after being asked several times, administering a dose of fentanyl intravenously. He said he possibly cannulated Mr B during the process, explaining that this would be his normal procedure, which would involve flushing the cannula with a saline solution. He said he used one syringe to administer the dose intranasally and a second, separate syringe to flush the cannula. He also denied the conversations attributed to him by Ms Horgan. He said his normal procedure when administering fentanyl intranasally was to commence with a dosage of 180 mcgs (consistent with the amount nominated in the PHCR). He also said he was very particular about filling in the PHCR, although he conceded he had omitted to record on the document the fact that Mr B had been cannulated. 19On 22 February 2010, Mr Rochford again wrote to the appellant informing him that the investigation into the allegations of misconduct had been completed. The appellant was informed that Mr Rochford had formed the opinion that the allegation (comprising the six instances of misconduct) had been made out. He was told that Mr Rochford was considering imposing the most severe penalty, namely, his dismissal from employment. The appellant was given 14 days to respond and was also offered an opportunity to take part in an interview with Mr Rochford. 20The appellant responded to Mr Rochford's letter through legal representatives. It was as a result of that reply that the respondent undertook the interview with Mrs B on 20 April 2010. On 14 May 2010, Mr Rochford again wrote to the appellant informing him of his decision to terminate his employment, effective from the date of service of the letter. The appellant was advised that he would receive two weeks' wages in lieu of notice. Proceedings below 21During the proceedings before Commissioner Tabbaa, the respondent tendered the interviews of Mr and Mrs B and Officer Gourlay's file note. While not entirely clear, it appears that the tender was for a limited purpose, identified by counsel for the respondent, namely, the necessity of placing before the Commission all of the materials upon which Mr Rochford had relied, and to which he had had regard, in order to explain "his evidence and his reasons for making the decision". The appellant objected to the tender of a number of documents annexed to Mr Rochford's affidavit, and all of the documents exhibited to the affidavit, which included the interviews of Mr and Mrs B and Officer Gourlay's file note. The basis for the objection was that the witnesses, notwithstanding written requests made by the appellant's legal representatives, were not being made available for cross-examination in order that their evidence may be tested. Counsel for the respondent confirmed the intention not to make the witnesses available for cross-examination. Several reasons were advanced. One was expressed in the following way: You have heard direct evidence from the two main protagonists, the two people who really saw what happened and ultimately this case is going to come down to whose version you think is more dependable and credible. It's not a case where there's an absence of evidence, there are just two conflicting versions and one of them is right and one of them is wrong, and I'll make my submissions as to why Officer Horgan (sic) should be preferred. But that does not mean that the investigation report can be put completely out of mind. In terms of the right to cross-examine any of these people once their interview statements go in, there's no such right. 22A further reason given appeared to rely on Practice Note 17 for the proposition that the directions contained within the Practice Note required evidence to be in the form of signed statements. Counsel for the respondent also referred to s 60 of the Evidence Act 1995 for the proposition that once the evidence is in (a reference to the tender of Mr Rochford's material) it is in for all purposes, although the Court may limit the use of the evidence and ascribe to it appropriate weight. It was contended by counsel for the respondent that it was open to the appellant to call Mr and Mrs B and Officer Gourlay as witnesses if the view was taken that their evidence would support the appellant's case. 23It was noted by the Commissioner during the course of the discussion that no request had been made prior to hearing by the appellant's legal representative for Officer Gourlay to attend for cross-examination. The Commissioner also reminded the appellant that only the first page of the IIMS, which had been completed by Ms Horgan on 13 November was tendered into evidence through Ms Horgan. The remaining two pages of the IIMS were not admitted. One of those pages reproduced Officer Gourlay's file note. With regard to the file note itself, however, this formed part of the documentation exhibited to Mr Rochford's affidavit in relation to which the respondent pressed the tender. Ultimately, Commissioner Tabbaa allowed the tender of the exhibits, including the interviews of Mr and Mrs B and Officer Gourlay's file note. In doing so, the Commissioner said the following: Commissioner: The rest of it, where she's referred to the file note and considered the file note and responds to the file note of Mr Gourlay of 13 November 2009, now, that has been allowed in. That's already in. Now, you're asking me to allow the file note itself. That's one of the objections. That's the problem that I've got. The other problem that I've got is I've got to decide whether the CEO made a decision that was harsh, unreasonable or unjust in the circumstances, so I've got to consider what was before him at the time the decision was made and at the time the decision was made, he had a report from someone he had delegated the authority to conduct an investigation to and report back to him. So whether the report was flawed or not, that's the report he had before him and that's what I have to consider, the totality of that report. Is there any reason why you did not issue summonses for those people to attend? ... Commissioner: I have noted the submissions made by both parties in relation to this matter. It is unfortunate that this argument has occurred at the end of the witnesses, as opposed to from the beginning when both parties could have adjusted the way they presented their cases. Nevertheless, we are faced with this argument now. As I have indicated, I have to decide whether the decision of the respondent was harsh, unjust or unreasonable. On that basis, I need to know all the information that was before the CEO at the time that the decision was made to dismiss and therefore I need the total investigation report before me. In relation to some other matters, one of them is - and we're dealing with them globally, rather than individual documents, that's another difficulty - but for instance, Mr Gourlay was not asked to be present to be cross-examined. There is a reference about a note dated 13 November which has been allowed to be referred to in Ms Horgan's statement and that has gone in and she has already been a witness and cross-examined and re-examined and her evidence is concluded. I need to have that type of evidence before me when I'm reading her affidavit. I can't see how I can separate the issues, but I agree with Mr Prince that it comes down to two conflicting versions and I've had those two people before me. Everything else apart from that is of assistance, maybe in defining what fentanyl is, what morphine is, when they are used, et cetera, cetera. But apart from that, it comes down to the two main version of what happened. So I am going to allow those exhibits and attachments. Commissioner Tabbaa's decision 24After setting out some preliminary matters in the decision, Commissioner Tabbaa descended into considerable detail in setting out the evidence and the parties' submissions. Her findings may be found under the heading "Consideration". The findings in relation to the impugned conduct are contained in several paragraphs. These are set out in full below: I have taken into account the arguments put on behalf of the parties, the affidavit evidence of the witnesses, the examination of the witnesses and the submissions in the proceedings all of which are relevantly outlined in detail above. Officer Horgan partnered the Applicant for the first time on 8 November 2009. There was no evidence before the Commission of any motive for lying about an incident such as is described in these proceedings. Her version of events was noted over the period 9-12 November in a personal notebook. There was no specialist evidence to the effect that the notes she had made were concocted for the proceedings or otherwise. Officer Horgan had completed an IMMS report on the Respondent's computer system on 12 November 2009. That report was consistent with her version of the event which was relayed to senior officers on 13 November 2009. It is noted that the record made by Officer Gourlay was not tendered by Officer Horgan and was therefore not in evidence. As was correctly pointed out by the Respondent the Applicant did not take the opportunity to call Officer Gourlay to give evidence in circumstances where, if successfully contested, that evidence would have impugned the evidence of a major eye witness to the allegations against the Applicant. Apart from witnessing the alleged intravenous application of Fentanyl "with her own eyes", Officer Horgan also went on to relay the conversations she had with the Applicant over the treatment of Mr B. Officer Horgan gave evidence that: 185.1 She had put an atomiser on after she drew the Fentanyl; 185.2 The Applicant had, in taking off the atomiser, said to her: "I'll show you a little trick"; 185.3 He had diluted the Fentanyl and given Mr B an "unknown amount" intravenously; 185.4 He had given Mr B an unknown amount intranasally and said to her, "I'll explain later"; 185.5 Later, while they were sitting in the ambulance, she said he had explained to her what he had done. Her notes stated: "he had measured out the doses before to know what he was giving, he also said that the way we give it is crap. It's supposed to be given IV, he stated that he had spoken to a doctor about it who he claims also thinks we should give it IV. He also stated "I trust you not to say anything" and "you just have to be careful who you do it in front of". He also stated that by giving it IN as well if the Patient was ever asked they would say yes I had it IN." 185.6 Officer Horgan said that she had said to him "that's just to cover your arse" and he had responded, "well yeah". Even if one were to believe that Officer Horgan may have been mistaken as to what she saw, it cannot be argued, in the absence of motive, that she was mistaken about that conversation that took place with the Applicant while they were in the ambulance after dropping off Mr B at the Hospital. The Emergency Record Sheet noted that Mr B had received intranasal Fentalyn (sic) a cannula was in situ when Mr B was admitted The Patient Record did not indicate that Mr B was sensitive to Morphine although the evidence indicated that the Applicant had recorded such information on other patient's records. All of the evidence, described above, supports Officer Horgan's version that Fentanyl was administered intravenously by the Applicant. ... I accept that the Respondent has satisfied the onus of proving that the Applicant had seriously misconducted himself in the treatment of Patient B. ... The evidence against the Applicant was overwhelming. His evidence was evasive, ever-changing and adapted to the evidence that was put before him. Those actions belied any indication that the Applicant was either willing to, or was capable of reform. I accept the Respondent's submissions that it would be contrary to public policy to re-instate the Applicant as an Ambulance Officer. Leave to appeal 25We propose to grant leave to appeal from Commissioner Tabbaa's decision. We have concluded that the Commissioner failed to provide adequate reasons for her ultimate decision to dismiss the application at first instance or her penultimate decision that the appellant had engaged in misconduct of the kind alleged by the respondent by failing to adequately disclose the steps involved in reasoning which led to those conclusion.. When combined with our further conclusion that the Commission had not, in substance, addressed a key question for adjudication in the proceedings (by addressing a wrong question), then leave should be granted in the interests of the proper administration of justice. We shall provide our reasons for those conclusions in our following discussion of the merits of appeal. The appeal Inadequacy of reasons 26The first observation we make about the passages extracted above from the impugned decision is that they make no reference to the appellant's evidence. There is only a global reference in the first paragraph acknowledging that the Commissioner had taken into account the respective submissions of the parties, the affidavit evidence, the oral evidence of witnesses and an overall assessment of the appellant's evidence in the final paragraph extracted. Secondly, there is no reference in the findings (and conclusions reached) to the evidence of Mr and Mrs B contained in their records of interview which were exhibited to Mr Rochford's affidavit. Thirdly, the Commissioner made a wrong finding of fact in relation to Officer Gourlay's file note. It was tendered into evidence as an exhibit to Mr Rochford's affidavit. Submissions were advanced by the appellant as to each of those considerations as factors warranting the acceptance of the appellant's account of the treatment of Mr B and the granting of the appellant's application at first instance. For example, the evidence of both Mr and Mrs B and the contents of Officer Gourlay's file note were the subject of written submissions by the appellant in the proceedings below, particularly as to the confirmation of the appellant's account of the treatment of Mr B. 27Further, apart from a reference to other patients' records completed by the appellant in which a sensitivity to morphine was indicated and references to aspects of Ms Horgan's evidence, there are no reasons given which might have revealed the bases for the Commissioner's conclusions to the effect that the evidence supported Ms Horgan's version that fentanyl was administered intravenously by the appellant and that the respondent had satisfied the onus of proving that the appellant "had seriously misconducted himself in the treatment of Patient B". The Commissioner described the applicant's evidence as "evasive, ever-changing and adapted to the evidence that was put before him" without offering an explanation as to that conclusion, without referring to any aspect of his evidence which might have provided a foundation for the conclusion or referring to any competing evidence (which was available in the proceedings). 28Given the brevity of the findings and the lack of reasons for making the findings, it is not possible for the appellant, or for the Court, to either understand or determine the process undertaken by the Commissioner which led to her findings, or why her findings were made as to either her preference for Ms Horgan's account or her acceptance that the appellant had engaged in the impugned conduct. 29We shall elaborate upon these matters as part of the discussion of the cases of the parties below. 30In support of the ground of appeal concerning the inadequacy of reasons, the appellant relied on the decision of the Court of Appeal in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. The decision of the Court of Appeal, we note, arose in the context of a failure by the trial judge to take into account, when assessing the credibility of the appellant (the plaintiff below), the evidence of other witnesses which was not challenged and which corroborated the appellant's account before the trial judge. 31The respondent contended that the appellant's reliance on Beale was misplaced. According to the respondent, the current case, unlike Beale, did not involve the Commissioner rejecting the appellant's evidence and credibility in the face of corroboration at critical points by three other witnesses. Instead, the current case involved making an assessment of two different witnesses, and the Commissioner accepted one account and rejected the other. Moreover, it was contended she gave reasons for her preference for the evidence of Ms Horgan. The respondent also relied on another distinguishing feature of the decision in Beale, which was the trial judge's failure to make any reference to the corroborative evidence as part of the inadequacy of reasons complaint. Here, it was contended, no such point arises. 32It was also contended by the respondent that the obligation to give reasons arises by the judicial status of the Court. In contrast, the Commission is not a Court. Support for the contention was said to be found in Beale in the decision of Meagher JA at 441.6. We will return to separately consider that particular issue. 33In that part of the decision, Meagher JA made the following observations with regard to the requirement to provide reasons for decision: It is well-settled that a judge or magistrate at first instance in particular cases has an obligation to provide reasons for the judgment given: Pettitt v Dunkley [1971] 1 NSWLR 376. That obligation arises as a matter of judicial duty: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 2 NSWLR 378 at 386; but only as a normal, not universal incident of the judicial process: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. It does not arise from legislation as it does in the field of administrative law: see, eg, Administrative Decisions (Judicial Review ) Act 1977 (Cth), s 13; Administrative Appeals Tribunal Act (Cth) 1975, see 28, 37 and 43. In the administrative field there is, at common law, no obligation on primary decision-makers to provide reasons for a decision: Public Service Board of New South Wales v Osmond. 34Those observations were immediately followed, however, by remarks made by his Honour as follows: With regards statutory administrative tribunals, it is, in Australia, undecided whether there is a general rule of law imposing a duty to provide reasons: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 16 FCR 465 at 479. 35Meagher JA went on to consider the purpose for providing reasons for decision. A primary reason identified by his Honour was the fact that a party seeking an appeal may generally only appeal where the trial judge has made an error of law: at 441. (We note, in the present context, that a decision as to whether a dismissal was harsh, unreasonable or unjust involves mixed errors of fact and law (as opposed to the exercise of a discretion): Commissioner of Police v Evans [2006] NSWIRComm 170 per Walton J, Acting President, at [1] with whom Staff J agreed.) That issue was considered by McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281, where his Honour said: In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turned simply on the plaintiff's credibility. But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough. 36In this case, other matters were relied upon by the appellant in addition to his credibility and the credibility of Ms Horgan in relation to the contested issue as to whether the misconduct had, in fact, occurred. One such matter was the evidence of Mr and Mrs B. The content of Officer Gourlay's file note was another matter. As we have noted, both matters were addressed by the appellant in written submissions and were before the Commissioner for her consideration having been tendered as exhibits to Mr Rochford's affidavit. 37Returning to the decision in Beale, other purposes for providing reasons were identified by Meagher JA. These were, in summary: a) a failure to provide sufficient reasons can lead to a real sense of grievance that a party does not know or understand why the decision was made. b) the requirement to provide reasons can operate prophylactically on the judicial mind, guarding against the birth of an unconsidered or impulsive decision. It enhances judicial accountability. c) the provision of reasons exposes the trial judge to review and criticism and it facilitates and encourages consistency in decisions. d) the provision of reasons saves time for appeal courts, both in reducing the number of appeals and in reducing the time taken in considering appeals. 38We pause to acknowledge that the requirement to provide reasons does not, in turn, make it necessary to refer to all of the evidence led in the proceedings and to indicate which of it is accepted or rejected (Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728, cited with approval by Meagher JA in Beale at 442). 39 Meagher JA, while recognising that the content of the obligation to provide reasons is not the same for every judicial decision, identified three fundamental elements of a statement of reasons (at 443). These were: (a)relevant evidence should be referred to, although there is no need to refer to the relevant evidence in detail. However, where certain evidence is important or critical to the proper determination of the matter and is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to; (b)a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. Where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he came to accept the one over the other. This does not require explicit findings to be made on each disputed piece of evidence; (c)a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons, or the process of reasoning, should be understandable and, preferably, logical. 40These requirements provide a guide to the examination of whether adequate reasons were provided in the decision below, although they may be approached less rigorously than a judicial decision. What must be ultimately determined for the purposes of resolving this issue in the appeal is whether the impugned decision adequately discloses the steps involved in the reasoning which led to the result or conclusion reached by the Commissioner (vis á vis the assessment of the veracity of both the appellant and Ms Horgan's evidence and the determination to accept the conclusion of the respondent that the appellant had misconducted himself). 41With regard to the first element, the evidence of Mr and Mrs B was clearly relevant evidence lending some support to the appellant's version of events. According to Ms Horgan's version of events, the appellant administered fentanyl intravenously and subsequently administered the drug intranasally. According to Mr B, the administration of fentanyl intranasally occurred after the methoxyflurane was administered. Mr B's evidence suggests a different sequence of events from Ms Horgan's account. Importantly, Mr B makes no mention of fentanyl being administered intravenously. Mrs B, who was interviewed at a later time and whose recollection of events was not clear, did recall "the whistle" (the administration of methoxyflurane) and the administration of "something" intranasally. Like Mr B, she also made no mention of fentanyl being administered intravenously via the cannula, although, according to her, she was not present throughout the whole of the process. Of greater significance was the appellants' version of events. Commissioner Tabbaa, apart from setting out the respective party's submissions on these issues, made little or no reference at all to that evidence and made no attempt to analyse it with a view to resolving the two competing versions. 42According to the respondent, the Commissioner did deal with the competing arguments and made findings. In support of the contentions, the respondent sought to rely on various passages from that part of the decision which sets out the respective submissions of the parties. As we have already noted, however, apart from setting out those submissions no findings were made and no attempt was made by the Commissioner to resolve any of the issues raised in the submissions and to explain how she reached her conclusions as to the veracity of the appellant's evidence or reached a conclusion, in the light of the evidence we have described above, that the appellant had engaged in an act or acts said to constitute misconduct warranting determination. The passages in the decision relied upon by the respondent to make out the contentions reflect no more than recitation of the evidence and the respective arguments. 43The respondent asserted that the present case is distinguishable from Beale in that it involved Commissioner Tabbaa making an assessment of two different accounts of the same events given by two witnesses. We would agree that this was a critical matter before the Commissioner for her determination but we do not agree that an assessment, or any proper assessment, was made of the two different versions. Such an assessment, if it had been undertaken, would have involved a consideration of the appellant's evidence and some explanation as to why the Commissioner did not accept his version of events. Mere reliance on demeanour, without recourse to any of the underlying material facts or any resolution of the issues, is not sufficient: see, for discussion of reliance on demeanour in making credibility findings, State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 at 329-330 per Kirby J. 44It follows from the foregoing remarks that Meagher JA's fundamental elements of a statement of reasons are not addressed in the decision. No material findings of fact are set out in the decision with regard to the appellant's version of events. There is no proper basis upon which either of the parties or the Full Bench can discern how it was that Commissioner Tabbaa accepted Ms Horgan's version of events over the appellant's account. No reasons are provided as to why the Commissioner made the finding that the appellant's evidence "was evasive, ever changing and adapted to the evidence that was put before him". 45Lee v Energy Australia (No 4) [2011] NSWIRComm 120 is another authority which touches upon the issue of the content of reasons in the decision-making process. The decision was an appeal from the decision of a Commissioner on a preliminary point. There are a number of similarities between the present case and Lee (No 4). Like the present case, the Commissioner, in Lee (No 4), extensively set out the issues in the proceedings and the submissions of the parties, but made no attempt to reconcile the competing submissions of the parties and gave no reasons for the resolution of the ultimate question (here, whether the respondent had discharged its onus that the appellant had engaged in misconduct). At [137] of the decision in Lee (No 4), the Full Bench observed: The assessment of the adequacy of reasons does require an examination of the whole of the decision below, and not just the seminal areas of judgment (often appearing in the conclusion of the decision) attacked on appeal. However, in this case, despite an extensive setting out of the issues in the proceedings and the submissions of the parties by the Commissioner, there was no form of reconciliation of the competing arguments or reasons given for the resolution of the ultimate question raised for adjudication. The Commissioner's attention seems, rather, to have been focussed upon her prior error, as found in Lee (No 2). Erroneously, the Commissioner seems to have been influenced by the notion that the Full Bench decision required the admission of evidence so as to avoid the decision in Lee No 2 reaching a result by 'default'. 46The Full Bench also adverted to some important considerations which, in our view, provide support for the existence of an obligation upon a Commissioner to provide reasons when exercising the jurisdiction of the Commission to determine an application for relief against unfair dismissal. In this regard, the Full Bench said (at [130]): Even though the proceedings were fundamentally industrial in character, thus bringing with them some measure of informality (getting to the gist of the issues as described in Coal & Allied Mining Services Pty Ltd v Lawler at [25]), the proceedings were inter parte and affected significant individual rights. There was required a sufficient level of formality of process to reflect the subject matter of the proceedings. The proceedings were brought under s 210. That section concerned some fundamental protections afforded persons who seek to exercise certain rights and, hence, they are essential to the proper administration of the Act. 47By analogy, the proceedings before Commissioner Tabbaa were inter partes and affected significant individual rights. The respondent's decision to dismiss the appellant from his employment was the most severe form of penalty that could be imposed. It was based on the allegation of misconduct made against him by Ms Horgan. The appellant was entitled to know why Ms Horgan's version was preferred over his version. More was required than the setting out of adverse factual findings made against him. The appellant was entitled to know the material facts which provided the basis for the conclusion. The absence of reasons makes it impossible for the Full Bench to assess what was taken into account by the Commissioner in concluding that the misconduct had been established by the respondent to the requisite standard (which was the civil standard: beyond the balance of probabilities). The onus for establishing the misconduct was on the respondent. That onus could not be discharged satisfactorily by reference only to the evidence of Ms Horgan and the acceptance of that evidence by the Commissioner without any examination of the evidence relied upon by the appellant and without any attempt made to resolve the competing versions (and submissions made as to the same). 48Also relevant to our observations on the content of reasons is the decision of the Court of Appeal in Ainger v Coffs Harbour City Council [2005] NSWCA 424. McColl JA (with whom Mason P and Hunt AJA agreed) provided the following commentary on the adequacy of reasons (at [47] [48] and [53]): [47] Adequacy of reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 442 per Meagher JA. [48] The primary judge was not obliged to spell out every detail of his process of reasoning (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 171, 182), however he was obliged to expose his reasons for resolving a point critical to the contest between the parties: North Sydney Council v Lygon (1995) 87 LGERA 435 at 442 per Kirby ACJ; Soulemezis at 270 per Mahoney JA, at 280 per McHugh JA. This obligation lay upon him to enable the parties to identify the basis of his decision and the extent to which their arguments had been understood and accepted: Soulemezis at 279 per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 at [129] it was necessary that the primary judge " 'enter into' the issues canvassed and explain why one case was preferred over another". ... [53] Although the primary judge made passing reference to some of the evidence upon which the appellant relied, he gave no reasons for apparently according it little or no weight. Significantly, his Honour failed to address the theory of the appellant's case, turning as it did on the respondent's role in creating and failing to rectify the trip hazard she had encountered. This omission leads to the inference that he failed to examine all the material relevant to the question whether the respondent had breached its duty of care (see TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333 at [150] per Spigelman CJ) - so that there was an "error in the process of fact finding". 49Adopting the terminology employed by McColl JA at [53], Commissioner Tabbaa failed to address the appellant's case theory which was that he did not administer fentanyl intravenously to Mr B and, therefore, the respondent had failed to discharge its onus in establishing that the misconduct had occurred. 50The issue which remains for our consideration is whether the obligation or the requirement to provide reasons extends to the hearing of an application for relief against unfair dismissal in the Commission (we have commenced our discussion of this issue above). 51According to the respondent, Commissioner Tabbaa was not required to give reasons because the Commission is not a Court. In support of this contention, the respondent relied on the remarks of Meagher JA in Beale at 441.5 in the passages we have extracted earlier. The respondent also relied on the principles espoused in Public Services Board (NSW) v Osmond (1986) 159 CLR 656 as discussed by Meagher JA in Beale at 441.6. The Full Bench was not directed to any particular passage, or passages, from Osmond. 52Counsel for the respondent did not draw to the attention of the Full Bench authority of this Commission which stands squarely against the contentions advanced by the respondent in this respect. 53In Lord v Flight Centre (No 2) [2006] NSWIRComm 282, a Full Bench of the Commission, following an earlier Full Bench decision in Webb v Goulburn Masonic Village [2004] NSWIRComm 258; (2004) 136 IR 309, concluded that, in proceedings under Pt 6 of Ch 2 of the Act (such as the present), the determination of applications made under s 84 of the Act by non-judicial Members of the Commission required the provision of reasons for the decision. (It was also decided that the reasons for decision must be adequate, such that the decision will disclose the steps in reasoning which led to the determination of the proceedings.) 54The relevant passages from the judgment in Lord are as follows (at [13] to [14]): 13 The need for reasons to be given has often been discussed. It is a particularly important requirement, in circumstances where a case is dismissed, without the parties being heard. In Webb v Goulburn Masonic Village (2004) 136 IR 309, it was observed: 33 As to the issue regarding the failure of the Commissioner to give adequate reasons for his decision, there are numerous cases that address the requirement on judges to give adequate reasons for their decisions: Petitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271-272 per Mahoney JA and at 280-281 per McHugh JA; Yates Property Corporation Pty Ltd (in liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156 at 160 per Kirby P and at 182-183 per Handley JA; Mifsud v Campbell (1991) 21 NSWLR 725 per Samuels JA at 728. The statements regarding the requirement to give adequate reasons have been approved in a number of decisions of the Commission: Woolworths Ltd v National Union of Workers, NSW Branch (unreported, Fisher CJ, Hungerford and Peterson JJ, CT96/1060, 1065 and 1074, 12 July 1996); Lismore Challenge Ltd v Lavis (1999) 88 IR 230 at 235; WorkCover Authority of NSW (Insp. Mayo-Ramsay) v Allen Taylor & Co Ltd (1999) 92 IR 392 at 393. 34 In Drake Personnel Ltd t/a Drake Industrial v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 459, the Full Bench held: Although the failure of a judicial officer to provide adequate reasons may constitute an error of law (see Pettit v Dunkley (1971) 1 NSW LR 376 at 388), the extent of the reasons required will vary in light of the nature of the proceedings and the nature of the matter being decided (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271 -273 per Mahoney JA and at 280-281, per McHugh JA, and Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 160 per Kirby P and at 182-183 per Handley JA). It is not always necessary for a judicial officer to expose every step in his or her chain of reasoning. 35 In Lorna Britton and Riverstone Public School (unreported, Matter No IRC 5504 of 1998, IRC of NSW, Schmidt J, Sams DP and McLeay C, 6 May 1999), an appeal involving an unfair dismissal from Commissioner Buckley, the Full Bench, after referring to Woolworths Ltd v National Union of Workers, NSW Branch and Soulemezis, observed that: It also follows that where reasons which are given are brief, they nevertheless must deal with the particular issues of fact and law which call for determination in the case ... What is required is for reasons to be given in relation to the issues which require the Commission's determination in the particular case. 36 We also refer to Entertainment Distributors Company Pty Limited v Burnard (1993) 49 IR 446 at 452, an appeal from a decision of Conciliation Commissioner McMahon and Monier PGH (Holdings) Ltd v Horsey (1998) 86 IR 63 at 72-73. 37 In Edwards v Giudice (1999) 169 ALR 89 Marshall J (with whom Moore J agreed, Finkelstein J not finding it necessary to determine) made certain findings regarding the obligation on a non-judicial member of the Australian Industrial Relations Commission ("AIRC") to give adequate reasons for any decision. At [44] to [46] his Honour stated: 44 In a seriously contested case before a tribunal which is required to afford procedural fairness and act judicially, an arbitrator is obliged to disclose the steps involved in the reasoning which leads to a particular result. There does not appear to be any obligation expressed in the Act to require a member of the Commission to give adequate reasons for a decision. It does not thereby follow, however, that in some cases such as strongly contested ones where a final order of significant consequence may be made that full reasons should not be given. 45 As Deane J said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366: A duty to act judicially (or to accord procedural fairness or natural justice) extends to the actual decision-making procedure or process, that is to say, to the manner in which and the steps by which the decision is made. 46 The obligation to give adequate reasons may more readily arise when a right of appeal lies from the order which gives effect to the decision at first instance, as is the case in the instant circumstances. Indeed a statutory right of appeal was considered by the New South Wales Court of Appeal as being a relevant "special circumstance" in the context of the portion of the judgment of Gibbs CJ in Osmond cited above: see Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 per Priestley JA, with whom Powell JA agreed (at 734-5), and per Handley JA at 739. 38 In Edwards v Giudice the Full Bench of the Federal Court was concerned with decisions by a member of the AIRC pursuant to s 170 CG of the Workplace Relations Act 1996 (Cth). Whilst that provision is different from the counterpart provisions in ch 2 Pt 6 of the Industrial Relations Act 1996 (for example s 170CG(3) makes it mandatory for the AIRC to have regard to certain matters whilst s 88 of the Industrial Relations Act leaves it to the discretion of the Commission to take similar matters into account, if appropriate) we, nonetheless, consider that there is an obligation upon non-judicial members of this Commission to "disclose the steps involved in the reasoning which leads to a particular result" in those cases where there is a duty to accord procedural fairness or natural justice. Such cases include applications under s 84 of the Act. 39 The extent to which reasons are required will, of course, depend on the nature of the case and it will not always be necessary to provide "a detailed and exhaustive analysis of each and every matter raised in a proceeding" (Entertainment Distributors at 452). However, in the present case, the Commissioner did not provide an adequate analysis as to what led him to dismiss the appellant's application. Coupled with the Commissioner's reliance on material that was not in evidence, his failure to provide adequate reasons amounted to a breach of procedural fairness. 14 We endorse those observations and indicate further, that the Commissioner was here required to give reasons explaining why the proceedings were dismissed for want of prosecution, albeit in the circumstances the reasons would have been short. 55The Full Bench decisions in Lord and Webb were both cognisant of the High Court authority in Osmond. Whilst the respective Full Benches did not directly discuss the application of Osmond (in the context of proceedings under Pt 6 of Ch 2 of the Act), both decisions expressly relied upon the judgment of the majority of the Federal Court in Edwards v Giudice (1999) 169 ALR 89 in reaching their conclusions. Edwards considered the obligation for reasons, in the light of Osmond, in decisions given under Federal industrial legislation providing a right of action for (loosely speaking) unfairly dismissed employees. 56In Edwards, the Federal Court concluded that the statement of the common law as to the provision of reasons in administrative decisions in Osmond did not preclude an obligation of a non-judicial Member of the Australian Industrial Relations Commission ("AIRC") to give reasons for decision in determining, by arbitration, an application under s 170CE of the Workplace Relations Act 1996 (Cth) prosecuted upon the basis that a termination was harsh, unjust or unreasonable. We will return to the judgment in Edwards, but it is clear that the decision of the majority distinguished Osmond because of the nature of the arbitral processes before the AIRC and the statutory provisions governing the exercise of that power (including the provision of a conditional appeal from determinations made in the exercise of that power). 57In Webb, the Full Bench adapted the reasoning in Edwards to proceedings under Pt 6 of Ch 2 of the Act to reach the same conclusion. This was followed in Lord. (Whilst not presently applicable to this aspect of our reasoning, we note that we would agree with those conclusions, having regard to the provisions of the Act governing unfair dismissal proceedings, including various provisions governing the procedure to be adopted by the Commission in such matters.) 58It follows that the undeveloped reference to Osmond by the respondent offers no proper basis for us to revisit (or depart from) previous authority in this Commission at a Full Bench level that reasons are required for arbitral decisions made under Pt 6 of Ch 2 of the Act (we might add that the failure to give adequate reasoning will effectively vitiate any such decision). 59Nor, in our view, does the respondent's reliance upon the passage from the judgment of Meagher JA in Beale (at 441) warrant any departure from the authorities to which we have referred. This is for two reasons. First, it is true that Meagher JA stated, with regard to statutory administrative Tribunals, it is, in Australia, undecided whether there is a general rule of law imposing a duty to provide reasons (see [32] of this decision above). However, that aspect of his Honour's judgment cites as authority the judgment of Wilcox J in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 16 FCR at 497. 60In Our Town FM, Wilcox J discussed the difference between the approach at common law in Australia, vis á vis the judgment of the High Court in Osmond, and the United Kingdom to conclude that it is open whether the approach in the United Kingdom (requiring the provision of reasons in decisions of the statutory Tribunal) should be taken as the law with respect to an Australian Tribunal. However, his Honour qualifies his opinion by stating that this position only applies where there is no statutory command to give reasons. The judgment in Edwards and the decision of this Commission in Lord both consider a particular statutory context, being one in which reasons will be required. 61The second consideration relates to Meagher JA's further observation in relation to statutory administrative Tribunals immediately following the passage we extracted in [32] above), which was as follows (at 441): Despite the fact that the obligation on courts to provide reasons may have a different origin, the former being an incident of judicial duty and the latter being a legislative requirement, there is no reason in principle or as a matter of policy why the content of reasons for both types of decision should not be similar, if not the same: they essentially serve the same purpose. 62Bearing in mind those considerations, we do not consider it appropriate to revisit (or depart) from earlier authority of this Commission that a non-judicial Member of the Commission will be required to provide reasons when determining an application under Pt 6 of Ch 2 of the Act. Based on the application of those authorities, we reject the contention advanced by the respondent in this respect. We do propose, however, to make some further observations. 63We make the following observations in relation to the requirement to give reasons in decisions given under Pt 6 of Ch 2 of the Act: (1)The requirement to give reasons in decisions determining unfair dismissal applications (or related proceedings concerning victimisation) has been consistently applied by Full Benches of this Commission after Webb and Lord; see, more recently, Ambulance Service of NSW v Buchtmann [2007] NSWIRComm 18 at [49] and [50] and Lee v Energy Australia (No 4) [2011] NSWIRComm 120 at [134] to [137]. (2)The judgment of the High Court in Osmond concerned an appeal to the Public Service Board of NSW from a refusal to appoint Mr Osmond by way of promotion to a vacant position as chairman of the Local Lands Boards. The Public Service Board considered that appeal under s 116 of the Public Sector Act 1979 and refused the appeal without giving reasons. The consideration by the High Court as to whether reasons were required revolved primarily around the nature of an appeal under s 116 and, in particular, the absence of any statutory provision which required the Board to give reasons for its decision or a statutory basis for appeal from such a decision. A contrast was drawn to an appeal from the Board to the Government and Related Employees Appeal Tribunal (as it then was) established under the Government and Related Employees Appeal Tribunal Act 1980. Hence, statutory provisions may alter the position at common law by obliging, in administrative decisions, the giving of reasons (661 and 664 per Gibbs CJ; 672 and 673 per Wilson J and 676 per Deane J). (3)The discussion in Osmond as to the requirement, or otherwise, to give reasons in administrative proceedings applies to both administrative and quasi-judicial decision makers: Soulemezis at 261 (per Kirby P). The judgment of the Chief Justice in Osmond should be construed, in a judicial context, as indicating the requirement to give reasons where there is a right of appeal so that the right of appeal might be properly exercised (Soulemezis at 269 per Mahoney JA). McHugh JA in Soulemezis (at 280) observed that more elaborate reasons were required where legislation gives a right of appeal against a decision than where no appeal lies. He further observed that "even in cases where a court is given a statutory power to vary existing rights and duties, it must exercise the power in accordance with principles and not arbitrarily" (at 278). We note, in that latter respect, that this quotation from his Honour's decision described the nature of the exercise of statutory power under s 84. (4)The extract from the judgment of Marshall J appearing in the Full Bench judgment in Webb at [37], as adopted in Lord at [13], was preceded by three passages of his Honour's judgment, the first two of which referred to passages from the judgment of the Chief Justice and Deane J in Osmond, and the third stating "The Commission, although an administrative Tribunal, does arbitrate on the claims of competing parties in a quasi-judicial setting. It is obliged to act judicially and afford procedural fairness to persons with business before it" (at [43]). No lesser requirements governed the proceedings before Tabbaa C: see Lee (No 4) at [160(5)] and CGEA Transport Limited T/as Southtrans v Transport Workers' Union of Australia [2001] NSWIRComm 287; (2001) 110 IR 211 at [33] to [35]. (5)Attention should also be given to the judgment of Moore J in Edwards. His Honour identified that the power exercised by the AIRC in Edwards was one conferred by s 170CG of the Workplace Relations Act 1996 (Cth). That power involved the process of hearing and determination which was quasi-judicial in character because the Commission was required to ascertain relevant facts and adjudicate upon whether the established facts resulted in a contravention of the standards, namely, that the termination would not be unjust or unreasonable. The comparisons with the requirements of s 84, in this respect, are reasonably obvious, although the statutory obligation or criteria for the intervention of the Tribunal in the case of a dismissal was expressed differently. (6)As to the requirements for reasons in this context, Moore J found in Edwards (at [10] and [11]): 10 I should mention one further matter. While the Full Bench did not say so expressly, it appears to have proceeded on the basis that Commissioner Tolley had a duty to give reasons which addressed material issues of fact and law. It was correct in taking this approach. The powers exercised by the Commission in relation to an application under s170CE in an arbitration involve the vindication of personal rights conferred by the WR Act. The proceedings result in inter partes orders: see s170CI. As is apparent from the passage quoted from Re Australian Industrial Relations Commission, (supra) the exercise of those powers gives rise to quasi-judicial proceedings with a conditional right of appeal. An appeal is by leave. Though it was decided in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 that there is no general obligation to give reasons, there are many cases where the obligation does arise: see Fleming v R (1998) 158 ALR 379 at para22 and particularly when a right of appeal exists: see T v Medical Board of South Australia (1992) 58 SASR 382, Re Saunders [1993] 2 QdR 335 and Attorney General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729. 11 A comparatively recent decision of the Court of Appeal, R v Civil Service Appeal Board, ex parte Cunningham [1991] 4 AllER 310, addressed whether the Civil Service Appeal Board of the United Kingdom was obliged to give reasons in relation to its consideration of penalty in a claim for unfair dismissal. Lord Donaldson said in at 319: "Any other conclusion would reduce the board to the status of free-wheeling palm tree". In my opinion the subject matter of the power to arbitrate under s170CG, when taken together with the conditional right of appeal conferred by s45 and the grounds of appeal in s170JF, point to the conclusion that the Commission is, when determining an application under s170CE by arbitration, obliged to give reasons for its decision which deal with the material legal and factual issues presented for determination and which deal with the matters the Commission must consider because of s170CG(3) and the relevant provisions of s170CH. The power conferred by s45(6)(b) is, in my opinion, not directed to the provision of reasons by the primary decision maker against whose decision or order an appeal is brought. That provision is intended to facilitate the hearing of an appeal where the Full Bench seeks to investigate itself issues that were not investigated or investigated fully at the original hearing. (7)Allowing for a different statutory context, we consider these reasons operate with the same force in the context of an exercise of arbitral power under Pt 6 of Ch 2 of the Act. (8)Reference should also be made to the decision of a Full Court of the Federal Court of Australia in Soliman v University of Technology, Sydney [2012] FCAFC 146 which is also applicable in the present context. Those proceedings concerned a claim by Dr Soliman that disciplinary action taken against him by the University of Technology, Sydney was in breach of an agreement. After a series of interlocutory proceedings, that matter was ultimately resolved by Vice-President Watson of Fair Work Australia in Soliman v University of Technology, Sydney [2010] FWA 8639 and, on appeal, by a Full Bench of Fair Work Australia: Soliman v University of Technology, Sydney [2011] FWAFB 1427. One question arising in those proceedings was whether the reasons provided by the Vice-President were adequate. The Full Court made the following observations regarding the requirement to give reasons (at [42] and [43]): 42 Second, in the absence of an express statutory requirement there is no general common law duty to provide findings or reasons for an administrative decision: Public Service Board (NSW) v Osmond (1986) 159 CLR 656. See: Akehurst, "Statements of Reasons for Judicial and Administrative Decisions" (1970) 33 Modern Law Review 154 43 Third, notwithstanding the absence of an express statutory requirement to provide reasons, a requirement to do so may be implied in circumstances where (for example) there is a right of appeal or a right to seek judicial review: Osmond (above) at 666-667 per Gibbs CJ. See: Campbell, "The duty to give reasons in administrative law" [1994] Public Law 184. But where the "legal rights as between an employee are determined", the decision in Osmond has been confined to "administrative decision-making and not to the exercise of judicial power": Campbelltown City Council v Vegan [2006] NSWCA 284 at [109]-[110] ; 67 NSWLR 372 at 394-395 per Basten JA. Handley JA (with whom McColl JA agreed) there expressed a broader view, namely that there was an "implied duty to give proper reasons" where "there is an appeal from an administrative decision maker to a panel or from an expert to a panel of experts": [2006] NSWCA 284 at [24] ; 67 NSWLR 372 at 377. (9)As to the relevant provisions of the Act, including the obligations to give reasons for decisions made under Pt 6 of Ch 2 of the Act, we do not repeat the earlier analysis undertaken in Webb and Lord as to the provisions of s 88 of the Act and the availability of an appeal from a decision of the Commission made under that Part of the Act. Nor do we repeat our earlier discussion as to the nature of the proceedings which were before Tabbaa C. In the broad, the matter involved inter partes proceedings requiring adjudication as to questions of fact and law or the application of facts to the law in quasi-judicial proceedings. The resolution of the proceedings involved, at least, questions involving serious personal rights of the appellant relating to his application to restore his employment and livelihood. The obligation to provide reasons for why misconduct had been established, for example, is starkly brought into focus in this appeal. Further, without reasons, or adequate reasons, this Full Bench cannot review, in any meaningful way, the decision of the Commissioner. (10)We would wish to mention, however, other provisions of the Act which may also bear upon this question without ultimately ruling on their applicability. First, s 162(2) deals with the procedures the Commission may adopt in its proceedings. Section 162(2)(h) provides that the Commission may dismiss at any stage any proceedings before it if it considers the proceedings are frivolous or vexatious. An incident of that function must be the provision of reasons as to whether the proceedings may be so characterised. Secondly, s 163(1)(c) provides that the Commission "is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms". It appears to us, by implication, the Commission, in acting in accordance with those requirements, must not act arbitrarily, and in so doing, thereby provide reasons for decision. A hallmark for the requirements of s 163(1)(c) would seem to require the Commission to give a reasoned and rational consideration to the merits of the cases provided by parties before it, demonstrated through the giving of reasons for decision. Finally, the reference to reserving a decision in s 177 would seem to bring with it the notion of a procedural step of delivering and publishing a judgment in which reasons may be provided by the Commission. That is the normal practice for decisions given under Pt 6 of Ch 2 of the Act in this jurisdiction. 64Given these matters, we conclude that the Commissioner's failure to provide adequate reasons constituted an appealable error which requires correction. Wrong approach to issue whether misconduct occurred 65In her decision, Commissioner Tabbaa identified as the "key issue" for determination, whether Ms Horgan, or the appellant, was to be believed with regard to whether the appellant administered fentanyl intravenously to Mr B on 8 November. 66In oral submissions, the appellant submitted that the Commissioner, in identifying as the "key issue" for determination which witness was to be believed, posed the wrong question. We agree. The questions which arose for Commissioner Tabbaa's consideration in the proceedings were first, whether the misconduct occurred (in the context of considering the fairness of the decision) and secondly, if it did occur, whether the dismissal was harsh, unreasonable or unjust in all the circumstances, having regard to all of the relevant evidence: Director of Public Employment, by his agent the Director-General of the Department of Juvenile Justice v Public Service Association (on behalf of Brown) (2008) 184 IR 134 at [22]. 67In Spillard v Patrick Stevedores Holdings Pty Ltd (2010) 193 IR 184 at [13], a Full Bench of Fair Work Australia said: ... while it is wrong in circumstances where a choice cannot be made between two versions of events, to hazard a guess at a possibility, a finder of fact needs to have regard to all of the evidence to ascertain whether references can be drawn to lead to a conclusion of probability". 68In this matter, there was evidence available for the Commissioner's consideration in addition to the two competing versions advanced by Ms Horgan and the appellant. 69The misconduct, the subject of the allegations against the appellant, was the alleged administration of fentanyl intravenously to Mr B. An enquiry into whether this occurred necessitated a consideration of all the available and relevant evidence. Evidence falling into this category included the eye witness accounts of Mr and Mrs B which, as we have already observed, provided support for the appellant's version of events that he administered fentanyl intranasally to Mr B. Other evidence falling into this category was the contents of Officer Gourlay's file note. Those contents revealed a second version of events given by Ms Horgan which was inconsistent with the version of events appearing in the IIMS completed by Ms Horgan. Officer Gourlay's file note records Ms Horgan as stating that the appellant administered one dose of diluted fentanyl intravenously and thereafter drew up a second dose of fentanyl which he administered intranasally. This contradicted Ms Horgan's other account that only one amount, or one single dose of fentanyl, was drawn into a syringe by the appellant. Commissioner Tabbaa acknowledged the significance of this evidence in the decision where she observed that Officer Gourlay's evidence "if successfully contested ... would have impugned the evidence of a major eye witness to the allegation against the applicant". 70In the decision, Commissioner Tabbaa set out the evidence and submissions which addressed an issue between the parties concerning the different response times for the relief of pain when administering fentanyl, either intravenously or intranasally. The material was supportive of a finding that fentanyl, when administered intravenously, provided rapid relief from pain. In contrast, when it was administered intranasally, the analgesic effect was more gradual. In the proceedings below, the appellant submitted that this evidence was contra-indicative of a finding that fentanyl was administered intravenously because of the description given by Mr B in his interview which was that the effect of the drug "gradually improves through the process". This material, although set out in some detail in the decision, did not expressly form the subject of any analysis or findings by the Commissioner. 71The evidence of Mr and Mrs B and Officer Gourlay was of direct relevance to the central issue for Commissioner Tabbaa's consideration, which was whether the appellant had administered fentanyl intravenously to Mr B. The failure by the Commissioner to take into account this evidence or to in any way reconcile the competing evidence in the context of determining whether the misconduct had been established by the respondent constituted a further error which requires correction on appeal. 72Because of the conclusions we have reached, which are sufficient to dispose of the appeal, it is unnecessary for us to consider the remaining grounds of appeal upon which the appellant placed some reliance. Conclusions 73In the circumstances, we consider that leave to appeal should be granted and the appeal upheld. There remains the question, however, as to what further orders should be made for the disposition of the appeal. 74In the amended grounds of appeal, the orders sought were confined to the grant of leave, the upholding of the appeal and quashing the Commissioner's order, and "such orders as this Honourable Court deems fit". We consider the most appropriate course is to order that the matter be referred to a Member of the Commission allocated by the President as a remitter. It is clear that a significant feature of the parties' respective cases has entailed the Commissioner making credibility findings. This is best accommodated by seeing and hearing the oral evidence of witnesses, as may be required, rather than the Full Bench attempting to resolve for itself evidentiary issues based on the transcripts and documentary evidence tendered below in the proceedings. 75In deciding on this course, we are guided by the observations of the Full Bench in Lee (No 4) concerning the power to remit under s 192(1) of the Act and the consequences attendant upon the exercise of that power with regard to the approach to be taken by the Member of the Commission to whom the matter will be allocated for hearing. It is useful to extract from the Full Bench decision in Lee (No 4) those paragraphs which serve to clarify the scope and effect of a remitter, in the context of the issues which were ventilated between the parties in these proceedings. At paragraphs [125]-[129], the Full Bench said: [125] When leave to appeal is granted under s 188 of the Act, the powers of the Full Bench on appeal, are specified in s 192, as follows: 192 Powers on appeal (1) On an appeal under this Part to a Full Bench of the Commission, the Full Bench may (in accordance with this Act): (a) confirm, quash or vary the decision of the Commission concerned, or (b) direct a member of the Commission to take further action under this Act to carry its decision on the appeal into effect, or (c) refer the matter back to the member of the Commission, with such directions or recommendations as the Full Bench considers appropriate. [126] Whilst s 192(1) does not refer to a re-trial or remittal, per se , in our view, such a power must be implicit under s 192(1)(c) (and possibly s 192(1)(b)). ... [127] The order for a remittal in Lee (No 2) did not, by its terms, constitute an order for a trial or re-trial (see Murphy at [75]). So much may be garnered from the form of the order which uses the words "in accordance with this decision" which, when taken with other commonplace terminology, such as "according to law", should not be construed as constituting a legal basis for a party to the remitted proceedings being entitled to tender such admissible evidence as it considered fit. [128] It follows that a party seeking leave to call fresh evidence in the remitted proceedings must make an application to do so. The order of remitter, per se, does not bring with it a view by the appellate tribunal whether leave should or should not be granted upon the making of such an application. We consider that the application so made is an application for leave to adduce further evidence. [129] That conclusion should not be taken, however, as an acceptance of the submission advanced by Mr Trew QC that the Commissioner was required to determine whether the respondent would or would not be committed to re-open its case. As Basten JA pointed out in Walker Corporation , that approach may "distract attention from the specific circumstances of the particular case" (at [92]). We consider Mr Trew's submissions to effectively contend for the establishment of a criteria equivalent to the re-opening of a case after judgment. We consider that approach to be productive of error (see Young JA in Walker Corporation (at [118]). As Young JA pointed out in Walker Corporation , what needs to be considered is "how in the changed atmosphere it should proceed to reach a just result" and, in doing so, the Commission would exercise a broad discretion as to "how the matter is to be concluded in a fair and just way". 76In this matter we have identified evidence not taken into account by the Commissioner. This evidence will be available for consideration by the Commission Member to whom the matter will be allocated in addition to the evidence comprising the two competing versions advanced by Ms Horgan and the appellant, and any other evidence admitted by leave (including the recalling of witnesses). A further piece of evidence should be mentioned here for completeness. The PHCR which was completed sometime in the evening of 8 November was signed by Ms Horgan. We have referred earlier to the contents of that record. It confirmed the appellant's account that he administered fentanyl intranasally, and, contradicted Ms Horgan's account that 120 mcgs of fentanyl was administered. The record was not the subject of any submissions by the appellant in the proceedings below, although the fact that it was signed by Ms Horgan has obvious significance. It will also be available as a further piece of evidence for consideration when the matter is heard before another Member of the Commission. Orders 77We make the following orders: (1) Leave to appeal is granted; (2) The appeal is allowed; (3) The order made on 13 October 2010 is quashed; (4) The matter is referred to a Member of the Commission (allocated by the President) to be determined in accordance with this decision. * * * * * * 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: 14 December 2012