Department of Attorney General and Justice - Corrective Services and Richard Woelfl and others [2013] NSWIRComm 73

Industrial Relations Commission New South Wales Medium Neutral Citation: Department of Attorney General and Justice - Corrective Services and Richard Woelfl and others [2013] NSWIRComm 73 Hearing dates: 15 February and 28 March 2013 Decision date: 30 August 2013 Jurisdiction: Industrial Relations Commission Before: Walton J, Vice-President at [1] Haylen J at [89] Staff J at [108] Decision: 1. In Matter No IRC 1226 of 2012: (a) Leave to appeal is granted; (b) The appeal is upheld; (c) Order (3) in paragraph [265] of Pearcy v Department of Attorney General and Justice - Corrective Services [2012] NSWIRComm 132 is set aside. 2. In Matter No IRC 1227 of 2012, leave is granted to discontinue the appeal. 3. In Matter No IRC 1228 of 2012: (a) Leave to appeal is granted; (b) The appeal is upheld only with respect to the conditions imposed by the order in Order (2) in paragraph [265] of the decision in Pearcy v Department of Attorney General and Justice - Corrective Services [2012] NSWIRComm 132, but in all other respects the appeal is dismissed; (c) Order (2) in paragraph [265] of the decision in Pearcy v Department of Attorney General and Justice - Corrective Services [2012] NSWIRComm 132 is varied by deleting the words "subject to a caution in respect to conduct". 4. In Matter No IRC 1243 of 2012: (a) Leave to appeal is granted; (b) The appeal is upheld only with respect to the conditions imposed by the order in Order (2) in paragraph [265] of the decision in Pearcy v Department of Attorney General and Justice - Corrective Services [2012] NSWIRComm 132, but in all other respects the appeal is dismissed; (c) Order (2) in paragraph [265] of the decision in Pearcy v Department of Attorney General and Justice - Corrective Services [2012] NSWIRComm 132 is varied by deleting the words "subject to a caution in respect to conduct". 5. In Matter No IRC 1244 of 2012: (a) Leave to appeal is granted; (b) The appeal is dismissed. 6. The orders made by Boland J in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales on behalf of Pearcy, Barnett and Woelfl v Department of Attorney General and Justice - Corrective Services NSW [2012] NSWIRComm 33 are dissolved. Catchwords: APPEALS - Corrective Services Officers - death of inmate - charges - disciplinary investigation - threatened dismissal - s 89(7) of Industrial Relations Act 1996 - application and scope of threatened dismissal proceedings - whether proceedings concern lawful dismissal or threat of dismissal - whether relevant to consider misconduct of officers - whether proceedings properly concern if officers engaged in serious and wilful misconduct - correct understanding below of proper test save for application of elevated standard of serious and wilful misconduct - error not affect decision re Officer Barnett as no basis for finding misconduct - Departmental appeal - leave to appeal granted - appeal dismissed save limited respect concerning conditions - different conclusion re Officer Woelfl - wrong test affected decision - no basis for exercise of discretion to nonetheless ground order under s 89(7) - leave for Departmental appeal granted - appeal upheld - orders at first instance re Officer Woelfl set aside