Secretary of the Treasury (Department of Justice - Corrective Services NSW) v Public Service Association and Professional Officers' Association Amalgamated Union of NSW on behalf of Richard Woelfl (No 5) [2014] NSWIRComm 51

Industrial Relations Commission New South Wales Medium Neutral Citation: Secretary of the Treasury (Department of Justice - Corrective Services NSW) v Public Service Association and Professional Officers' Association Amalgamated Union of NSW on behalf of Richard Woelfl (No 5) [2014] NSWIRComm 51 Hearing dates: 16 and 17 September 2014 Decision date: 28 November 2014 Before: Boland AJ, Tabbaa C, Newall C Decision: The Full Bench makes the following orders: In relation to the appeal in Matter No IRC 1226 of 2012: (1) Leave to appeal is granted (2) The appeal is upheld. (3) The decision and orders of Harrison DP are quashed. In relation to the appeal in Matter No IRC 1244 of 2012: (1) Leave to appeal is granted. (2) The appeal is dismissed. Catchwords: THREAT OF DISMISSAL - Threat by respondent to dismiss officer for misconduct relating to treatment of inmate who later died - Decision and order at first instance that respondent not proceed with threat to dismiss officer - Order that officer be demoted - APPEAL - Application for leave to appeal and appeal from decision at first instance by respondent employer - Cross appeal by Public Service Association (PSA) on behalf of officer - Appeal upheld - Orders at first instance set aside - Cross appeal -dismissed - JUDICIAL REVIEW - PSA sought judicial review of Full Bench decision and orders - Court of Appeal found Full Bench erred in that it failed to identify the element of misconduct it regarded as "serious", assess its seriousness and weigh that against the consequences for the applicant of the proposed dismissal - Court of Appeal remitted the appeal and cross-appeal to the Full Bench of the Commission to be determined according to law - REMITTER - Consideration of nature of misconduct - Misconduct found to be serious - Whether dismissal would be harsh unreasonable or unjust - Consideration of the effect of dismissal on officer - Consideration of Commission's powers under ss 89(7) and 89(8) of Industrial Relations Act 1996 - Power "limited to the making of an order restraining any dismissal and the making of ancillary orders necessary or incidental to the proper and efficient performance of the orders" - Held that dismissal would not be harsh, unreasonable or unjust Legislation Cited: Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 Crimes (Administration of Sentences Regulation) 2008 Industrial Relations Act 1996 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 Department of Attorney General and Justice - Corrective Services and Richard Woelfl and others [2013] NSWIRComm 73 Pearcey and Others and Department of Attorney General and Justice - Corrective Services [2012] NSWIRComm 132 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 Public Service Association and Professional Officers Association Amalgamated Union of New South Wales on behalf of Pearcey, Barnett and Woelfl v Department of Attorney General and Justice - Corrective Services NSW [2012] NSWIRComm 33 Secretary of the Treasury (Department of Justice - Corrective Services NSW) v Public Service Association and Professional Officers' Association Amalgamated Union of NSW on behalf of Richard Woelfl [2014] NSWIRComm 47 Texts Cited: Correctives Services NSW Operations and Procedures Manual Oxford English Dictionary, Online, Oxford University Press, 2014 Category: Principal judgment Parties: Department of Justice - Corrective Services (Appellant in Matter No IRC 1226 of 2012; Respondent in Matter No IRC 1244 of 2012) Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Respondent in Matter No IRC 1226 of 2012; Appellant in Matter No 1244 of 2012) Representation: J Murphy of counsel (Appellant in Matter No IRC 1226 of 2012; Respondent in Matter No IRC 1244 of 2012) P Lowson of counsel (Respondent in Matter No IRC 1226 of 2012; Appellant in Matter No 1244 of 2012) Crown Solicitor's Office (Appellant in Matter No IRC 1226 of 2012; Respondent in Matter No IRC 1244 of 2012) W G McNally Jones Staff Solicitors (Respondent in Matter No IRC 1226 of 2012; Appellant in Matter No 1244 of 2012) File Number(s): IRC 1226 and 1244 of 2012 Decision under appeal Citation: [2012] NSWIRComm 132 Date of Decision: 2012-11-28 00:00:00 Before: Harrison DP File Number(s): IRC 506 of 2012