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 DECISION OF THE COMMISSION 1Mr Richard Woelfl, a Senior Correctional Officer at Grafton Correctional Centre, was threatened with dismissal after disciplinary charges were laid against him and two other correctional officers, Mr Matthew Barnett and Mr David Pearcey. The charges related to alleged misconduct by the officers in: allowing an inmate, Ian Robert Klum, who suffered injury in his cell, to crawl unaided to an adjacent cell; failing to promptly obtain medical assistance for the inmate; failing to inspect the cell where the injury occurred and in which a large amount of blood was present; and failing to establish a crime scene in the cell where the inmate was originally found. Mr Klum died from his injuries. 2The Public Service Association and Professional Officers' Association Amalgamated Union of NSW ("PSA") brought proceedings in the Industrial Relations Commission to challenge the threatened dismissal of the officers: Pearcey and Others and Department of Attorney General and Justice - Corrective Services [2012] NSWIRComm 132 ("Woelfl (No 1)"). Those proceedings found that Mr Woelfl's misconduct was not serious and wilful and did not warrant termination. It was held the appropriate penalty for Mr Woelfl was a demotion. The employer successfully appealed this decision to the Full Bench of the Industrial Relations Commission: Department of Attorney General and Justice - Corrective Services and Richard Woelfl and others [2013] NSWIRComm 73 ("Woelfl (No 2)"). The first instance orders relating to Mr Woelfl were set aside. 3The PSA, on behalf of Mr Woelfl, sought judicial review of the Full Bench decision. In Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 ("Woelfl (No 3)") the Court of Appeal held that the Full Bench 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. The Court of Appeal found that the absence of any reference to that essential function by the Full Bench indicated that it was probably not undertaken. The Court of Appeal remitted the appeal and cross-appeal to the Full Bench of the Commission to be determined according to law. 4In 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 ("Woelfl (No 4") the Full Bench was required to determine the scope of the remitter ordered by the Court of Appeal in Woelfl (No 3). In doing so, the Full Bench made the following orders: (1)The remitter ordered by the Court of Appeal in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 will involve a reconsideration of all of the issues raised in the appeal and cross-appeal, subject to whether the PSA is to be permitted to rely on grounds 1 and 2 of the cross-appeal. (2)The parties will file sufficient copies of all of the material that was before the original Full Bench at least three days prior to the hearing of the remitter. (3)In the event the PSA wishes to seek leave to have the Full Bench receive further evidence pursuant to s 191(2) of the Industrial Relations Act 1996, the PSA shall file a motion to that effect with supporting affidavit. If such an application is made it will be determined by the Full Bench at the hearing of the remitter. (4)Liberty to apply. 5To be clear then, in accordance with Woelfl (No 4), insofar as they relate to Mr Woelfl, we have approached the appeal by the Secretary of the Treasury (Department of Justice - Corrective Services NSW) ("the Department") against the decision of Harrison DP in Woelfl (No 1) (Matter No IRC 1226 of 2012) and the cross-appeal by the PSA (Matter No IRC 1244 of 2012) by considering all of the issues afresh. There, are, however, two qualifications: first, it was agreed that in Woelfl (No 1) Harrison DP erred in imposing a condition on Mr Woelfl's return to employment, that condition being a demotion to a lower grade. That is undoubtedly correct. As it was held in Woelfl (No 3) at [79]: [T]he Deputy President did not have the power to impose conditions upon the orders made by him under s 89(7) and that the jurisdiction exercised by the Commission was 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. 6Secondly, there was no issue that Harrison DP erred in applying the test of "serious and wilful misconduct": see Woelfl (No 2) at [82]-[84]. The evidence 7There was a large amount of evidence before Harrison DP. The evidence included the following: (1)Statements of Mr Woelfl, Mr Barnett and Mr Pearcey. (2)Statements of other correctional officers. (3)Statement of Gerry Schipp, Deputy Commissioner, Corporate Services for Corrective Services New South Wales (4)Photographs, including photographs of Mr Klum's clothing. (5)CCTV footage of Messrs Woelfl, Barnett and Pearcey showing their contact with, and handling of, Mr Klum on the night of 10 June 2010 following Mr Klum's call for assistance from his cell. (6)Interview transcripts, including the interviews by investigators of Messrs Woelfl, Barnett and Pearcey. (7)Investigation Reports into the allegations of misconduct against Messrs Woelfl, Barnett and Pearcey. (8)Allegations of misconduct against Messrs Woelfl, Barnett and Pearcey. (9)Submissions by Messrs Woelfl, Barnett and Pearcey in response to the allegations made against them. (10)Various correspondence including extensive correspondence from the PSA's solicitors to Corrective Services NSW during the course of the investigation and the letters suspending the three officers. (11)Extracts from Corrective Services NSW Operations and Procedures Manual. 8The material before the Full Bench in 10 lever arch volumes included the evidence before Harrison DP at first instance, the transcript of proceedings before his Honour and the decisions in Woelfl (No 1) - (No 4). Additionally, counsel for the PSA was granted leave to rely on further evidence, that being a statement by Mr Woelfl regarding the impact on him of his continued suspension from the workplace and the threat of dismissal and a colour photograph of Mr Klum leaving cell 225 with two correctional officers. 9The following narrative constitutes our view of evidence relevant to the determination of the appeal and cross-appeal. Mr Woelfl 10Mr Woelfl graduated from the Correctional Services Academy in 1986. He was awarded the Exemplary Conduct Medal for bravery on 11 January 1990 after being stabbed seven times by an inmate. Mr Woelfl was subject to other incidents of violence. He received a broken nose and black eye in an incident at Grafton Correctional Centre, he was on duty when riots occurred at Long Bay Gaol in 1986 and Parklea Gaol in 1988 and was required to extract an inmate from a cell in 2007 when one of two occupants lit a fire. 11Mr Woelfl requested and was transferred to Grafton Correctional Centre in 1990 where he has worked from that time with the exception of the period from 1995 to 2002 when he was in the Transport and Court Escort Security Unit in Grafton. Since 2006, Mr Woelfl has been regularly rostered as the night shift senior officer, which is the most senior officer until a command officer commences work in the morning. He has acted as Assistant Superintendent and Senior Assistant Superintendent on numerous occasions. 12Mr Woelfl gave evidence of the physical, emotional and financial effects upon him and his family as a consequence of his suspension and threat of dismissal. It may be accepted that the effect on Mr Woelfl's physical and emotional state has been significant. He continues to take prescribed medication for stress and depression. Mr Woelfl's family has also suffered as a consequence of the stress Mr Woelfl feels he is under. In so far as the financial effects are concerned, Mr Woelfl has been suspended on pay since June 2010. There has, however, been a drop in income because, for instance, he has not had the opportunity to work overtime. Mr Woelfl has not worked since June 2010. 13The service record and good character of Mr Woelfl was supported by the evidence of Mr Michael Carter, an Ambulance Station Officer and Intensive Care Paramedic, and Mr Pavlovic, a correctional officer of 28 years' service, who retired as General Manager Mid North Coast Correctional Centre. This evidence was not subject to challenge. Messrs Barnett and Pearcey 14In his first instance decision, Harrison DP ordered the respondent not to terminate the employment of Mr Barnett. Further, that Mr Barnett was to be returned to employment as a Corrective Services Officer at Grafton Correctional Centre subject to a caution in respect to conduct. A similar order was made in respect of Mr Pearcey, except there was no mention of a caution being required. 15In relation to Mr Barnett, Walton J found in Woelfl (No 2) as follows: [72] Ms Lowson submitted that, if, as Harrison DP found, none of the allegations against Officer Barnett were made out then, even in the event that his Honour applied the wrong test, there would be no basis for a finding of "fundamental error". I consider Ms Lowson's submission to be correct, in that respect, if it is understood as being a contention that the decision below could be confirmed, notwithstanding error of the kind described, if there was no basis for interfering with the finding that Officer Barnett had not engaged in misconduct. [73] Given that the Full Bench concluded there was no proper basis to interfere with the finding at first instance in that respect, the procedure identified at the outset of this decision was adopted, namely, that Ms Lowson was not called upon in relation to the Department's appeal concerning Officer Barnett. As it was open, in my view, for Harrison DP to find that the charges of misconduct were not made out with respect to Officer Barnett, that Departmental appeal may be dismissed, notwithstanding his error as to the applicable test or standard. 16His Honour's decision regarding Mr Barnett was reflected in the orders of the majority. No further issue has been taken in relation to Mr Barnett. In respect of Mr Pearcey, the Department was granted leave to discontinue the appeal. 17No further consideration is required to be given to the appeal and cross-appeal in relation to Mr Barnett or Mr Pearcey. Mr Klum 18Harrison DP accurately described matters relating to Mr Klum at [184]-[190] in Woelfl (No 1): [184] Mr Klum had a series of traffic and other offences dating from May 1976 (exhibit 28 vol 3 p 2171) when he was first recorded as being convicted at Parramatta Petty Sessions for supply and use of LSD and use of Indian Hemp and sentenced to nine months periodic detention. Mr Klum's criminal history includes appearances in Brisbane District Court Southport, Coffs Harbour Petty Sessions, Coffs Harbour Local Court, Coffs Harbour District Court, Bellingen Local Court and Tamworth Local Court. [185] The majority of Mr Klum's offences relate to driving whilst disqualified. There are some convictions for falsifying a licence and one of causing grievous bodily harm. [186] Mr Klum's behaviour and the cause thereof is discussed in a report by Dr Igor Petroff (exhibit 28 vol 3 pp 2166-2170), a Consultant Psychiatrist who examined Mr Klum on 10 March 2010 at the request of Mr Klum's legal representative, Mr Todd Ritchie of Coffs Harbour. [187] Dr Petroff reported that Mr Klum lived on a 10 acre property in Woolgoolga with his mother, who was in her eighties, and a farm labourer who also acted as a minder and driver for Mr Klum. [188] Dr Petroff noted that Mr Klum had spent some time in gaol for driving offences and whilst in gaol was extremely anxious and hid inside his cell. Dr Petroff reported that Mr Klum told him that whilst he was in gaol he was bashed on several occasions and was kicked in the head. He did not know why he was bashed but thought it might be because he would "get in the road of others" and did not respond appropriately to them, and in the end he was too terrified to leave his cell. [189] In recording Mr Klum's history Dr Petroff noted that Mr Klum gave him the impression that he became overwhelmed with stress and panic and felt he had to drive somewhere. [190] Dr Petroff's report includes the opinion: I have absolutely no doubt that Mr Ian Klum has suffered a stroke or series of strokes as a result of blood clots arising from his cardiomyopathy (fat flabby heart that throws off blood clots). I am absolutely certain that it is his organic brain damage that caused his multiple offences. 19Additionally, it is to be noted that Ms Rowena Mustard, Security Manager at Grafton, contacted Mr Phillip Snoyman, Senior Specialist Psychologist, on 7 May 2010 expressing concerns about Mr Klum's placement at the Grafton Correctional Centre. Reports accompanying Mr Klum indicated he had an acquired Brain Injury and other medical related issues. On 10 May 2010, Mr Snoyman was contacted by Barbara Perry, Registered Nurse, and Dr Patrick O'Brien, Psychiatrist. They requested Mr Klum be placed in an Additional Support Unit ("ASU"). They were very concerned about his depression and that he had a stroke or series of strokes in 2008, mobility issues and possible cognitive impairment. 20ASUs accommodate offenders who, because of their disability, require placement outside the mainstream correctional centre environment for assessment, general management or to participate in a specific program to address offending behaviour. 21Consideration was given to placing Mr Klum in an ASU. However, on 19 May 2010 Berindah Aicken, ASU Senior Specialist Psychologist, indicated that having been assessed by a psychologist: Mr Klum does not have an intellectual disability and he does not function in the borderline range. For this reason, Mr Klum does not meet the criteria for placement in an additional support unit. 22Mr Klum was not placed in an ASU, but rather within the Grafton Correctional Centre. Events of 10 June 2010 23At about 2.20 am on 10 June 2010 at the Grafton Correctional Centre a cell-call, otherwise known as a "knock-up" call, was received in the Monitor Room from cell 219. The call was made by Mr Klum who said he was bleeding from the mouth and nose and that he was "so sick". Mr Barnett was advised of the call and he and Messrs Woelfl and Pearcey proceeded to cell 219. 24The CCTV footage shows that when the three officers arrived at the door to cell 219 Mr Pearcey opened the outer cell door. Mr Barnett walked across to cell 225, opened it and walked back to cell 219. After a short period Mr Woelfl opened the inner cell door to cell 219, but no officer entered the cell. Nor did it appear that any officer turned the light on in the cell, although Mr Woelfl stated "the light from the outside common area is very bright and shines into the cell, this allowed me to see into the cell and observe." In relation to the lighting, Mr Pearcey described it as "... a sort of partial light in the cell by the bunk light and the rest [was] pretty dark except from the outside like when you're looking into the cell." 25In relation to not entering the cell, Mr Woelfl stated: As a general precaution, to avoid placing themselves or other officers in danger, an officer would only enter a cell whilst an inmate is present if it is absolutely necessary to do so. An example of when an officer may decide it is necessary to enter an occupied cell is to undertake a cell extraction if an inmate refuses to leave the cell. Any cell extraction must be video recorded. Other circumstances include if a critical incident has occurred, or an inmate is physically unable to leave the cell, for example if they are unconscious, or dead, or a fire had occurred in the cell. ... 26The scene in the cell when the three officers arrived was that Mr Klum was sitting, slouched, on the floor of the cell apparently dressed with his shoes on. Mr Johnson, the other cell occupant, was lying on his bed. Mr Klum had "blood smeared around his nose and mouth". Mr Woelfl said Mr Klum had a small amount of dried blood around his nose, but otherwise showed no sign of injury; that he "had minor abrasions to his nose and mouth". He also said there were a couple of blood drops on the grill door. There was a suggestion of an altercation between Mr Klum and Mr Johnson because Mr Klum was snoring, but Mr Johnson denied he assaulted Mr Klum. Mr Woelfl formed the view that what had occurred was "a minor push and shove type incident between two inmates." Mr Pearcey thought a fist might have been used. 27We do note this evidence, and it is contained in an Investigation Report by Simon Berry, Principal Investigator, to the Board of Management, Management of Deaths in Custody Committee dated 25 August 2010. The evidence relates to what Mr Johnson was recorded to have said in an electronically recorded interview with Detective Scott on 10 June 2010: 82. Inmate JOHNSON recounted that when the CSNSW Officers attended the cell area he stated, "I just mentioned to the officer briefly that I didn't do anything, and I think he's a head case... there's all blood over here,... and it is believed the Officer replied "tomorrow we'll sort it all out in the morning... get him in another cell..." 83. It was reported that Inmate KLUM reported that he had Hepatitis C and Inmate JOHNSON became concerned that he was left in the cell with blood on the floor, which may be contaminated with Hepatitis C. 28Mr Barnett stated that when he attended cell 219 Mr Klum did not have any obvious injuries, he had a small amount of smeared blood around his nose and mouth and on the top of his index finger as if he had wiped his nose. Mr Barnett said it did not appear to him to be any reason why Mr Klum was not capable of walking. 29Mr Pearcey stated that when he attended cell 219 there was nothing to suggest that the call by Mr Klum was a serious incident. He observed a little bit of blood under Mr Klum's nose and that Mr Klum was dressed in the prison tracksuit with his shoes and socks on. 30Mr Klum was instructed by Mr Woelfl to get up from the floor and come to the cell door. Mr Klum was moaning and saying he could not do this. According to Mr Pearcey, Mr Klum "did eventually crawl to the cell door." At that point Mr Klum complained of a headache. The CCTV footage shows Mr Klum exiting the cell while crawling and then laying down on the ground in front of Messrs Barnett and Pearcey. Mr Klum was holding his hand to his head. Mr Barnett appeared to reach down to touch Mr Klum's arm with his hand, but withdrew and stepped back. It was Mr Barnett's evidence that he bent down to offer Mr Klum assistance, but that Mr Klum shrugged off the assistance, which Mr Barnett took as an indication that he did not want to be assisted. 31Mr Woelfl appeared then to secure the inner cell door and in doing so moved Mr Klum's legs clear of the doorway using his own leg. He then secured the outer cell door. Mr Klum started to rise up to a seated position holding his hand to his head area. Messrs Pearcey and Barnett walked across to cell 225. Mr Woelfl stood next to a sitting Mr Klum and directed him to cell 225. Mr Klum then proceeded to crawl on his hands and knees to cell 225 clutching a jumper in one hand. Mr Klum also appeared to have attempted to stand up, but seemed unable to do so and continued to crawl unassisted. Mr Woelfl walked past Mr Klum and stopped short of cell 225. Mr Woelfl, together with Mr Pearcey and Mr Barnett, waited until Mr Klum crawled past him and into cell 225. Mr Woelfl secured the cell doors and all three officers left the area. 32Mr Woelfl had instructed the other two officers not to pick Mr Klum up off the floor because he suspected Mr Klum was "bunging something on", that Mr Klum was "playing a game", and was capable of walking unaided. 33In Woelfl (No 1) Harrison DP opined at [191]: [191] Dr Petroff's report was not available to any of the participants on 10 June 2010, however, I consider it is relevant to a consideration of whether Mr Klum was or was not open to assistance from the Officers when crawling from cell 219 to cell 225; or whether, had the Officers insisted upon assisting him, the situation could have been worse. 34It does not seem to us there was anything in the report of Dr Petroff that could have led his Honour to speculate that if the officers had assisted Mr Klum "the situation could have been worse." 35Mr Woelfl said in his evidence before Harrison DP that he did not "immediately assume that an inmate is bunging it on or faking an injury." However: [I]n my 26 years of working as a correctional officer I have experience (sic) many occasions where inmates have feigned or "bunged on" injuries for various reasons, such as wanting to go to the hospital or wanting to be moved or simply to leave their cell. 36There was also some suggestion that if an inmate was feigning injury correctional officers needed to be aware that there could be a risk to their health and safety and, therefore, the inmate had to be watched carefully. It is to be noted from the CCTV footage that whilst Mr Klum crawled across the floor from cell 219 to cell 225, for a period of about five seconds none of the officers were observing Mr Klum. Messrs Barnett and Pearcey had their backs to Mr Klum and Mr Woelfl walked past Mr Klum without keeping his eyes on him. 37Harrison DP's examination of the CCTV footage led his Honour to a similar conclusion at [205]: [205] On close observation of the CCTV footage it is apparent that at times none of the Officers were watching Mr Klum. Having regard to their testimony that they thought he might be not genuine in presenting his physical incapacity and was "bunging it on", and the evidence that close regard should be had to inmates to avoid a surprise attack, their failure to observe Mr Klum is concerning. 38Mr Pearcey said that after Mr Klum was secured in cell 225 Mr Woelfl instructed him to "get on the computer in Detox and bring up the assault package and print this off." Mr Pearcey further stated, "Mr Woelfl was going to make a phone call to the Justice Health OIC (Officer In Charge) to ask if he could call in the Grafton on-call nurse. This was taken care of and the duty nurse was called." 39Mr Woelfl stated that he said to the after-hours Nurse Manager in Sydney when making the call: I've just had an assault up here and I want to get this guy checked for a head trauma because he was a bit sluggish on his feet... 40Mr Woelfl then called the on-call nurse in Grafton and stated: I need you to come in, I believe this guy he's complaining of a headache ... so I need you to come in and check him out... 41Whilst Mr Woelfl stated he considered the injuries to Mr Klum to be minor, it is evident that he considered they were serious enough to call in the nurse to examine Mr Klum at about 2.35am. That call was made to the Nurse Unit Manager within 3 to 4 minutes of securing Mr Klum in cell 225. It is also evident that regardless of whether he considered there had been "a minor push and shove type incident between two inmates" Mr Woelfl believed that Mr Klum had been assaulted. During his interview with the investigators on 11 June 2010 Mr Woelfl stated that he initially thought that Mr Klum either hit his face against the wall "or someone's punched him..." When one considers that assessment by Mr Woelfl together with his request of Mr Pearcey to complete an assault package and his advice to the Nursing Unit Manager that "I've just had an assault up here..." it is undoubtedly the case that, virtually from the outset, Mr Woelfl considered an assault had occurred. 42At approximately 2.37am Messrs Woelfl, Barnett, Pearcey and Ms Gilbert, another correctional officer, attended cell 225 for the purpose of transferring Mr Klum to a safe cell in anticipation of him being examined by the on-call nurse. Mr Woelfl noticed from outside the cell Mr Klum was bleeding from the forehead. He said to Mr Klum, "You didn't have that on you when we fucken (sic) brought you over here, get up now." Mr Klum responded, "Sorry, I can't, I'm spinning out." 43Mr Barnett entered the cell and assisted Mr Klum out by holding his right arm. Mr Woelfl took hold of Mr Klum's left arm and both officers assisted Mr Klum down a set of stairs to the safe cell in the Detoxification Unit. Mr Woelfl said it was necessary to take hold of Mr Klum's arms because he refused to walk. However, it appears from the CCTV footage that Mr Klum made some effort to walk, assisted by Mr Woelfl and Mr Barnett. It is not apparent from the CCTV footage that Mr Klum offered any resistance to Mr Barnett or Mr Woelfl. Mr Pearcey said in cross-examination that as Mr Klum was assisted down the stairwell to the observation cell he was "like a rag doll, sort of floppy." Mr Klum was in cell 225 for approximately eight minutes. 44Mr Woelfl said that following Mr Klum's removal to observation he, along with Mr Barnett and Ms Gilbert, went back to cell 225 to investigate and found three drops of blood on the floor next to the bed, and finger smudges of blood underneath the bed railing. In the meantime, Mr Pearcey was monitoring Mr Klum in the observation cell via the CCTV cameras. 45Mr Woelfl said he did not believe, until he was informed of Mr Klum's condition at about 1.30 pm on 10 June 2010, that cell 219 should have been treated as a crime scene as all of the indications suggested only a minor incident took place in cell 219, as distinct from cell 225. The decision to check cell 225 was based on what Mr Woelfl observed as the additional injury to Mr Klum in that cell and the blood observed on his jumper when removed. Mr Woelfl considered the prospect of self-harm by Mr Klum in cell 225 more serious than the events in cell 219, which he had concluded had resulted from just a minor push. This was based on his observations and a conversation with Mr Klum's inmate, Mr Johnson at 5:30am on 10 June 2010. 46From the time Mr Klum was moved to the observation or safe cell until the on-call nurse's arrival, Mr Pearcey said that he observed Mr Klum and read his medical alerts on the "OIMS computer system". Based on the alerts, which indicated a history of strokes and taking the medication 'warfarin', Mr Pearcey thought that the nurse was likely to send Mr Klum to Grafton Hospital after observation. In light of that information and in anticipation, Mr Pearcey filled out a movement order pursuant to s 24 of the Crimes (Administration of Sentences) Act 1999, which was to be sent to the Hospital at the time Mr Klum was to be transferred. Mr Pearcey did not advise Mr Woelfl of Mr Klum's medical history because the nurse had been called and Mr Pearcey considered the nurse would read the history and determine what to do. 47Mr Pearcey also completed an 'Inmate Injury Questionnaire'. Whilst doing so Mr Klum complained to him of injuries or a headache. Mr Pearcey said: ...he was calling out I've got a headache, I've got a headache... and groaning, and I said, from the detox desk to cell 1... Look, just hang on mate, the nurse is on her way, you'll be seen... so he seemed to take that on board all right. 48Mr Pearcey also stated in his evidence before Harrison DP that he observed Mr Klum "walking in the observation cell." 49In answering the questions on the Inmate Injury Questionnaire, which was obviously completed before 5.30 am when Mr Klum was transported to Hospital, Mr Klum indicated on the Questionnaire that he had been assaulted by another inmate and that he wanted police and the Department to take action. Mr Pearcey gave the Questionnaire to Mr Woelfl and Mr Woelfl said he "breezed through it" and "quickly looked through the answers", but he was satisfied the Questionnaire was completed correctly. In "breezing through" the Questionnaire Mr Woelfl understood Mr Klum wanted the police involved. 50Nurse White attended Grafton Correctional Centre at approximately 3:17am on 10 June 2010. Nurse White was responsible for all medical decisions concerning Mr Klum from her time of arrival. The Nurse examined Mr Klum and completed an Incident/Assault Report in which she described Mr Klum's injuries as "Small laceration R eyebrow" and the degree of severity as "minor". 51Mr Woelfl stated in his first record of interview that Nurse White had undertaken multiple observations of Mr Klum in the time between arrival (3:17am) and 5:30am, and indicated that on each occasion (every half hour) that "he (Mr Klum) was carrying on the whole time and then asking to go to the hospital", and was not cooperative with the nurse. 52Mr Pearcey stated in his Incident Report that Nurse White had examined Mr Klum and Mr Klum was: [P]laced back in cell 1 on the nurse's instruction it was thought that it could be a possible broken nose, but if so he could not be x-rayed at GBH until the unit opened in the morning. It was decided to review KLUM in 30 minutes. KLUM was again assisted from cell 1 to the treatment room to be seen by the Nurse. This time he was given an ECG as well as all his vital signs again monitored ie Pulse/Blood pressure. I believe Nurse White was in consultation with an on call doctor throughout all of these events. It was decided by medical that KLUM be transported to Grafton Hospital and the Ambulance was called. Klum left the centre at 0540 by ambulance escorted by officers Barnett and Gilbert. 53It appeared that Mr Klum was to be transferred to hospital at 8:30am initially, but arrangements were made for a 5:30am departure from the Correctional Centre because of possible blood clotting issues identified by the doctor whom Nurse White had consulted. Mr Woelfl asserted that at this time he was of the belief that what occurred with Mr Klum was not a major incident, notwithstanding Mr Klum's transfer to hospital, and that the injuries were consistent with there having been a 'minor incident'. 54Mr Woelfl asserted at all times that he believed the initial altercation between Mr Klum and Mr Johnson in cell 219 was a 'minor incident'. Mr Woelfl stated in his initial interview that he was not aware of Mr Klum's prior blood clotting problems at the time of the incident, and was only informed of this by Nurse White at the time Mr Klum was transferred to Grafton Hospital. Nurse White also informed Mr Woelfl of the possibility of a broken nose based on her observations of Mr Klum. 55At approximately 6:00am on 10 June 2010, Mr Woelfl called the Manager of Security, Ms Mustard, to inform her of the incident. 56At or around 6:10am, Mr Klum's condition deteriorated at the Hospital. 57At approximately 6.00 - 6:30am Mr Woelfl informed Mr Robert Vial, Assistant Superintendent at the Centre, of the incident and at around that time he completed a 'lock up' of Mr Johnson and secured cell 225. After 6.30am, Mr Vial commenced his shift and all further decisions were made by him, as the most senior officer. 58At 7.00am, Mr Woelfl briefed Mr Miles, Senior Assistant Superintendent, and at 7.50am, Ms Mustard, was briefed. 59At about 10.30 am Mr Johnson was moved out of cell 219 and it was secured as a crime scene. At some time in the morning of 10 June 2010 Senior Assistant Superintendent Miles inspected cell 219 and discovered significant bloodstains on Mr Klum's bed, bed sheets, and on the wall and floor of the cell. Photographs of the blood were in evidence. 60Mr Klum underwent a CT scan at the Hospital at 7:30am. He underwent emergency surgical procedures to reduce a subdural haematoma, and was subsequently transferred to Princess Alexandria Hospital in Brisbane where he died four days later. Following the incident 61The investigation that followed was described by Walton J in Woelfl (No 2) at [15]-[20]: [15] Following the incident, on 11 June 2010, investigators attended the Facility and interviewed Officers Woelfl and Pearcey in relation to the incident. [16] Officer Woelfl (by letter dated 11 June 2010) and Officers Barnett and Pearcey (by separate letters dated 21 June 2010) were subsequently informed by Mr Gerard ('Gerry') Schipp, the Deputy Commissioner of Corporate Services at the Department, that allegations of misconduct had been made against them in relation to the 10 June incident, and that he had determined to treat the allegations as disciplinary matters under s 46(1)(a) of the Public Sector Employment and Management Act 2002 ('PSEM Act'). The investigations were to be undertaken by Mr David Byrne (General Manager, Investigations Branch), or one of his nominated staff. The respective letters also advised that, once the respective investigations were complete, disciplinary action may be considered against each the officers (which disciplinary action could include, amongst other things, dismissal). [17] By separate letters of the same dates, the officers were also informed by Mr Schipp that they had each been suspended (with pay) "from duty effective immediately until the allegation of misconduct has been dealt with" in accordance with s 49(1)(a) of the PSEM Act. Those decisions to suspend were each to be reviewed in 30 days. [18] The disciplinary investigation against each of the officers was suspended for the period between 24 August and 23 December 2010 pending the completion of the investigation of the incident by NSW Police. The disciplinary investigation was subsequently recommenced following the receipt of advice by Mr Schipp that NSW Police did not intend to lay criminal charges against any of the officers. [19] It may also be noted at this juncture that, in separate letters dated 30 August 2010, Mr Schipp advised each officer that he was considering converting their suspension on pay to suspension without pay. That action was opposed by the officers, but was confirmed by Mr Schipp on 5 October 2010 on the basis that his decision would be reviewed in 30 days. The issue of suspension without pay was subsequently subject to dispute proceedings in the Commission before Marks J (Matter No IRC 1489 of 2011) on 18 October 2010, following which the Department accepted his Honour's recommendation and reversed the decision to suspend the officers without pay. [20] Ultimately, two internal investigations were conducted in respect of each of the officers, which investigations led to findings of misconduct against each of the officers. The allegations 62The initial allegations of misconduct against Mr Woelfl about which he was asked to respond were made by letter dated 28 June 2010 signed by Mr Simon Berry (Principal Investigator, Investigations Branch). The allegations were in the following terms: That you failed to comply with section 13 (Serious Incidents) of the Operations and Procedures Manual and Part D Serious Incident Response Policy In that you did not take reasonable steps to preserve the crime scene in response to a serious incident In that you did not inform the on call Manager of Security or General Manager of the Incident In that you did not designate an officer to secure the crime scene until the arrival of police In that you did not appoint a designated officer to maintain a register of personnel entering and exiting the crime scene In that you did not ensure that inmate JOHNSON was placed in a separate cell In that you did not arranged [sic] for observations of Inmate JOHNSON to occur as to ensure that he did not interfere with the crime scene either by washing or removing evidence from his body, clothes or cell In that you did not arrange for and or provide all written reports within a reasonable time to the General Manager from all staff involved in this incident. That you failed to comply with section 7.3.2.3 "Medical Care of Inmates" of the Operations and Procedures Manual In that you did not seek medical attention immediately for Inmate KLUM upon observing that he could not walk unaided That you breached clause 253 of the Crimes (Administration of Sentences Regulation) 2008 In that you did not report that inmate JOHNSON was suspected of committing an offence against inmate Klum to the General Manager immediately In that you did not confine inmate JOHNSON in an appropriate place of confinement pending instructions on how the inmate should be dealt with in response to a serious incident occurring On or about 11 June 2010, when interviewed in relation to this incident you provided false and misleading information in breach of clause 260 of the Crimes (Administration of Sentences Regulation) 2008 That you were grossly negligent in the performance of your duties relating to this incident in that You did not assist Inmate KLUM from cell 219 to 225 being aware that he could not assist himself You did not remove Inmate JOHNSON from cell 219 to ensure the crime scene integrity was preserved You left Inmate KLUM for approximately 8 minutes in cell 225 unattended when it was clear he required medical attention 63Mr Woelfl was interviewed on 13 July 2010 in relation to the specific allegations contained in the 28 June letter. Following the recommencement of the disciplinary investigations after the completion of the investigation by NSW Police (the Police declined to take any action against the three officers), Mr Berry wrote to Mr Woelfl, in a letter dated 24 January 2011, reiterating the allegations of misconduct against him. Those allegations appeared in the same form as the allegations contained in the letter of 28 June 2010 (set out above), save for the addition of 5 further particulars in relation to the allegation as to the provision of false and misleading information. Those additional particulars were as follows: 4. On or about 11 June 2010, when interviewed in relation to this Incident you provided false and misleading information in breach of clause 260 of the Crime (Administration of Sentences Regulation) 2008 in that you stated, "I can't recall whether we picked him up or not to move him but everywhere we had to pick him up and move him...I put him in the cell." When questioned at 221 it was asked "Ok....can you tell me how the inmate got to 225?" And you stated at answer 222 "I can't recall, I think he started crawling and got about half way and I think Mr Barnett and Mr Pearcey picked him up under the arms..." When it is clear on CCTV that Inmate KLUM crawled to cell 225 and he was not moved, assisted aided or otherwise helped by yourself or any other officer. You stated that whilst at cell 225, inmate KLUM "...wouldn't walk" In your answer 361 and in answer 362 stated, "Yeah, he said, he wouldn't walk, directed him to get up and walk, and he said No..." Yet contained within the audio of the "Knock-up" from cell 225, you were heard to direct inmate KLUM up off the floor and he responded a number of times "I am spinning out" but never said the word "No" 64Mr Woelfl participated in a further interview on 10 February 2011 and provided a written submission in response to the allegations against him. 65There were further allegations made against Mr Woelfl (as well as the other two officers). Each of the officers were informed by Mr Schipp, by separate letters dated 21 July 2011, that he had received a further allegation that the officers had engaged in misconduct, which would also be dealt with as a disciplinary matter and subject to a further investigation. The further allegation was in the following terms: The details of the alleged misconduct relate to an incident on or about 10 June 2010 when you responded to a knock up call to attend the cell of inmate KLUM (MIN: 132350) in that: You failed to turn the light on to inspect the cell when you arrived. You failed to inspect the cell at any time during the incident or thereafter. Despite finding inmate Klum sitting slouched on the floor with blood on his face, you made no proper inspection of his injuries or the cell to assist in your determination of what had occurred. By failing to properly respond to the knock-up call you have breached your duty of care to inmate KLUM. Findings against Mr Woelfl 66Mr Schipp wrote to Mr Woelfl on 28 February 2012 to inform him of his findings as to misconduct and that the most severe penalty he was considering was dismissal. 67The final findings as to misconduct were contained in Mr Schipp's letter of 28 February as follows: I refer to my letter to you dated 21 July 2011 in which I advised you that I have formed the opinion that you had engaged in misconduct as follows: 1. That you failed to comply with section 13 (Serious Incidents) of the Operations and Procedures Manual and Part D Serious Incident Response Policy. In that you did not take reasonable steps to preserve the crime scene in response to a serious incident. In that you did not inform the on call Manager of Security or General Manager of the incident. In that you did not designate an officer to secure the crime scene until the arrival of the police. In that you did not ensure that Inmate Johnson was placed in a separate cell. In that you did not arrange for observations of Inmate Johnson to occur as to ensure that he did not interfere with the crime scene, either by washing or removing evidence from his body, clothes or cell. In that you did not arrange for and or provide all written reports within a reasonable time. [sic] to the General Manager, from all staff involved in this incident. 2. That you breached clause 253 of the Crimes (Administration of Sentences Regulation) 2008. In that you did not report that Inmate Johnson was suspected of committing an offence against Inmate Klum. (sic) to the General Manager immediately. In that you did not confine Inmate Johnson in an appropriate place of confinement pending instructions on how the inmate should be dealt with in response to a serious incident occurring. 3. That you were grossly negligent in the performance of your duties relating to this incident in that: You did not assist Inmate Klum from cell 219 to 225 being aware that he could not assist himself. You did not remove Inmate Johnson from cell 219 to ensure the crime scene integrity was preserved. You left Inmate Klum for approximately 8 minutes in cell 225 unattended when it was clear he required medical attention. I have considered the Investigation Report (regarding the further enquiries) and I have formed the opinion that you can (sic) engaged in misconduct as follows: About 2.20am, 10 June 2010, when responding to a cell-call (knock up) from Inmate Ian KLUM (MIN 371957) at cell 219, 5 Wing, Grafton Correction Centre, you breached your duty of care to Inmate KLUM by failing to properly respond to the incident in that: a. you did not turn on the cell light to inspect the cell upon arrival; b. you did not inspect the cell at any time during the incident or thereafter; c. you did not properly inspect inmate KLUM's injuries or the cell to assist in determining what had occurred despite finding inmate KLUM sitting slouched on the floor with blood on his face. 68Mr Woelfl sought further time to reply. An extension was granted to 17 April 2012, on which date the final submissions were received from Mr Woelfl. 69On 17 May 2012, Mr Schipp wrote to Mr Woelfl advising him that he had considered the officer's submissions in response to the findings made in the letter of 28 February and had decided to take disciplinary action against him in the form of dismissing him from the public service. 70However, as Walton J observed at [46] of Woelfl (No 2) any dismissal was forestalled: It may be noted that the decision with respect to Officer Woelfl could not take effect at that time given interlocutory orders which had been made by Boland J on 24 April 2012 in 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 in relation to the applications for relief from threat of unfair dismissal brought pursuant to s 89(7) of the Industrial Relations Act 1996 ('the IR Act') which had been filed by the PSA on behalf of the officers on 17 April 2012 (Matter Nos IRC 504, 505 and 506 of 2012). The orders made by Boland J were to the effect that the Department was restrained from dismissing the officers pending the hearing and determination of the proceedings. First instance decision 71Harrison DP summarised his findings regarding Mr Woelfl at [229]-[246] of Woelfl (No 1): [229] In July 2011 Mr Schipp advised Officer Woelfl that he was considering dismissal in respect to failure to establish a crime scene and other matters set out above (para 49) and additional charges relating to failure to inspect cell 219. [230] The most serious charge laid against Officer Woelfl is that he was grossly negligent in the performance of his duties in not assisting Mr Klum from cell 219 to cell 225 and leaving him there for eight minutes when it was clear that he required medical attention. [231] I find these allegations not substantiated on the evidence. [232] Mr Klum was offered assistance, which he refused. It became obvious to the Officers present that Mr Klum did not want to be touched. This attitude is consistent with the fear and anxiety Mr Klum told Dr Petroff that he experienced in gaol. [233] It is entirely probable that, had the Officers pressed assistance upon Mr Klum against his will, he may have resisted, making matters worse. [234] The charge of misconduct in leaving Mr Klum in cell 225 for eight minutes is not sustained on the evidence. [235] Officer Woelfl acted immediately to obtain medical assistance for Mr Klum. The fact that he had to telephone for approval and then wait for the nurse to arrive is a matter of Departmental procedure, not the construction [sic] of Officer Woelfl. [236] Having regard to the uncontested fact that correctional officers are not permitted to render medical assistance, Officer Woelfl had no option but to call for assistance. [237] The evidence is that calling directly for an ambulance is a rare and unusual event and that the standard operating procedure is to call the nurse. [238] On close examination of the CCTV images of Mr Klum moving from cell 219 to cell 225 it is clear that he was not injured in this process. [239] It is appropriate to make the distinction that Mr Klum was not made to crawl, he was allowed to crawl, and that this was limited to the movement from cell 219 to cell 225. [240] It was entirely reasonable for Mr Klum to be given a brief time in cell 225 to compose himself prior to the next part of the move to the observation cell, which included navigating a stairwell, for which Mr Klum was afforded assistance which by then he was prepared to accept. [241] Officer Woelfl was faced with a difficult set of circumstances and made judgements as he was required to do, which are supportable. [242] The remainder of the charges against Officer Woelfl address the failure to investigate cell 219, establish a crime scene, and reporting of the incident. [243] I accept the evidence of Mr Schipp that all of these matters have their foundation in the failure to make a proper observation of cell 219. [244] As the Senior Officer in charge, Officer Woelfl was responsible for these errors of judgement, none of which I note go to the care and wellbeing of Mr Klum. [245] Failure to investigate, establish a crime scene and report, amounts to misconduct which warrants sanction. This misconduct is not, in my assessment, serious and wilful misconduct warranting termination of employment. [246] The Department has a range of sanctions open to it and of those I determine, having regard to all of the circumstances, including the exemplary service record of Officer Woelfl, that demotion to a lower grade is the appropriate penalty. Appeal by Department 72The Department sought leave to appeal and, if leave were granted, to appeal from the decision of Harrison DP in respect of the three officers. The Department relied upon nine common grounds (numbered (a) to (j)) as follows: (a) The learned Deputy President, in applying the test of "serious and wilful misconduct so as to warrant termination of employment" applied the wrong test to the facts before him in exercising the Commission's powers under section 89 of the Act. (b) In applying the wrong test, the learned Deputy President erred in not finding that all three respondents had committed misconduct such as to render their threatened dismissals neither harsh, unreasonable nor unjust. (c) The learned Deputy President had an obligation to raise with the parties the possibility that he might purport to exercise disciplinary powers against two of the respondents for the misconduct which he found had been committed by them. (d) The failure of the learned Deputy President to raise with the parties the possibility that he might purport to exercise disciplinary powers against two of the respondents constituted a denial of procedural fairness to the appellant. (e) The learned Deputy President erred in purporting to exercise disciplinary powers pursuant to section 89 of the Act in circumstances where such powers reside in the Department Head pursuant to Part 2.7 of the Public Sector Employment and Management Act 2002 and the exercise of such powers by the Department Head is not reviewable by the Commission. (f) The learned Deputy President erred in failing to make a finding, in the case of Officer Woelfl, that reinstatement was impracticable before purporting to make an order that he be returned to employment in a different position from that which he held at the time of his threatened dismissal. (g) The learned Deputy President erred in failing to specify the position into which Officer Woelfl was to be returned. (h) The learned Deputy President erred in failing to consider whether such a position (or any position) was available and suitable. (i) The learned Deputy President erred in ordering the demotion of Officer Woelfl and the cautioning of Officer Barnett as a form of disciplinary action in proceedings brought pursuant to section 89 of the Act, which provision is not concerned with demotion or promotion or punishment (Commissioner of Police v Lawrance [2011] NSWIRComm 109 at [173]). (j) Such other grounds and reasons as the Commission may allow. Cross-appeal by PSA 73In the PSA's application for leave to appeal and appeal in the Woelfl matter the appeal was stated as an appeal against the following: 1. The findings that Officer Woelfl a. Failed to investigate cell 219; b. Failed to establish a crime scene; c. Failed to report the incident. ([242]-[244]). 2. The finding that the failures identified above amounted to misconduct (at [245]). 3. The finding by Harrison DP that he could exercise the powers of the Department and impose a penalty by demoting Officer Woelfl to a lower grade (at [246]). 4. The order that Officer Woelfl be returned to employment as a Corrective Services Officer subject to demotion to a lower grade (at [265(3)]). 74The PSA relied upon four grounds in support of the Woelfl appeal as follows: His Honour Harrison DP erred: 1. In finding that the factual circumstances involving Officer Woelfl and cell 219 involved acts of misconduct. 2. In finding that the misconduct, as found, warranted the imposition of any penalty, including the penalty of demotion. 3. In finding that he had jurisdiction to exercise powers available to the Department, and in purporting to exercise those powers to demote Officer Woelfl "to a lower grade". 4. In not putting Officer Woelfl on notice that he was considering imposing a penalty of demotion, and not receiving submissions on Officer Woelfl's behalf in that regard. Consideration 75On the question of leave to appeal, there was no issue that leave should be granted. We note the test in s 188(2) of the Industrial Relations Act 1996 (IR Act) for granting leave and we are satisfied the test has been met in these appeals. Moreover, the appeals have been remitted to the Full Bench of the Commission by the Court of Appeal to be determined according to law. 76On the question of standard of proof, Harrison DP stated that the standard of proof was the balance of probabilities according to the standard set in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Woelfl (No 1) at [203]). There appeared to be no issue about the application of that standard. In Briginshaw Dixon J described the standard thus at 362: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. 77Dixon J also stated at 361: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. 78Similarly, Rich J in Briginshaw at 350 stated: In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion. Section 89(7) 79Section 89(7) of the IR Act is to be found in Pt 6 of Ch 2, dealing with unfair dismissal. The subsection provides: (7) Threat of dismissal In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat. 80A dismissal includes the threat of dismissal: s 83(5). Both parties contended that the test to be applied in any consideration under s 89(7) was whether the threat of dismissal was "harsh, unreasonable or unjust", which is the test to be applied in relation to an actual dismissal: s 84. 81The PSA submitted that s 89(7) provides final and permanent injunctive relief in the nature of a negative restraint that is anticipatory in nature. In other words, a form of quia timet injunction. 82In Woelfl (No 3) it is evident that Basten JA, who delivered the main judgment, was of the view that the tripartite test of "harsh, unreasonable or unjust" was applicable in any consideration of an order under s 89(7), although the issue was not the subject of argument. 83In the absence of any disagreement about the test to be applied and being unable to derive any assistance from a contrary view we are left with little choice but to proceed on the basis that in considering whether to make an order under s 89(7) the tripartite test applies. However, we must ask ourselves not whether the threat of dismissal is "harsh, unreasonable or unjust", but rather if the threat were to be implemented would the resulting dismissal be "harsh, unreasonable or unjust'. Appeal by Department 84Dealing firstly with the Department's appeal, most of the grounds focused on the now accepted errors of Harrison DP in applying the wrong test of serious and wilful misconduct and in wrongly applying s 89(7) of the IR Act. However, it was asserted in the Department's appeal grounds that his Honour "erred in not finding that all three respondents had committed misconduct such as to render their threatened dismissals neither harsh, unreasonable nor unjust (sic)." 85The misconduct the Deputy President was required to consider was that alleged against Mr Woelfl in Mr Schipp's letter of 28 February 2012. 86The Deputy President dealt firstly with Mr Schipp's finding that Mr Woelfl was grossly negligent in the performance of his duties. That finding was in the following terms: 3. That you were grossly negligent in the performance of your duties relating to this incident in that: You did not assist Inmate Klum from cell 219 to 225 being aware that he could not assist himself. You did not remove Inmate Johnson from cell 219 to ensure the crime scene integrity was preserved. You left Inmate Klum for approximately 8 minutes in cell 225 unattended when it was clear he required medical attention. Failure to assist Mr Klum from cell 219 to cell 225 87In relation to the allegation that Mr Woelfl was grossly negligent because he did not assist Mr Klum from cell 219 to 225 being aware that he could not assist himself, Harrison DP found the allegation was not substantiated. In this respect, his Honour found: [232] Mr Klum was offered assistance, which he refused. It became obvious to the Officers present that Mr Klum did not want to be touched. This attitude is consistent with the fear and anxiety Mr Klum told Dr Petroff that he experienced in gaol. [233] It is entirely probable that, had the Officers pressed assistance upon Mr Klum against his will, he may have resisted, making matters worse. ... [238] On close examination of the CCTV images of Mr Klum moving from cell 219 to cell 225 it is clear that he was not injured in this process. [239] It is appropriate to make the distinction that Mr Klum was not made to crawl, he was allowed to crawl, and that this was limited to the movement from cell 219 to cell 225. 88The charge was not simply that Mr Woelfl was grossly negligent because he did not assist Mr Klum from cell 219 to 225, which appears to be what the Deputy President considered, but rather that Mr Woelfl did not assist, being cognisant or conscious of the fact that Mr Klum could not assist himself. Accordingly, we consider Harrison DP misdirected himself. 89The question, therefore, is whether, in not assisting Mr Klum from cell 219 to cell 225 (a fact clearly made out on the evidence), Mr Woelfl was aware - or was conscious or cognisant - that Mr Klum could not assist himself. It is important to observe the charge was not framed as "...being aware, or should have been aware..." A strong case might be made out that Mr Woelfl should have been aware that Mr Klum could not assist himself, but the evidence falls well short of proving Mr Woelfl was aware Mr Klum could not assist himself. 90In identifying precisely the allegation, we are not engaging in pedantry. The allegations against Mr Woelfl are serious; they require close examination. If they are proven Mr Woelfl may be dismissed from his employment of 28 years. 91It was Mr Woelfl's evidence that he believed Mr Klum was feigning injury and that he was able to walk from cell 219 to cell 225 unaided. He told Mr Barnett not to pick Mr Klum up off the floor because he suspected Mr Klum was "bunging something on"; that Mr Klum was "playing a game". 92Our view is that Mr Woelfl considered there had been an assault and as a consequence Mr Klum had suffered injury, albeit only minor injury. However, it has not been established that Mr Woelfl believed Mr Klum's injuries were such that Mr Klum was rendered incapable of assisting himself in getting to cell 225. 93In our opinion, the Department has failed to prove misconduct on Mr Woelfl's part arising from the allegation of a failure to assist Mr Klum from cell 219 to cell 225. Mr Klum left unattended 94The next allegation is that Mr Woelfl left Mr Klum for approximately eight minutes in cell 225 unattended when it was clear he required medical attention. Harrison DP found in respect of this allegation that: [234] The charge of misconduct in leaving Mr Klum in cell 225 for eight minutes is not sustained on the evidence. [235] Officer Woelfl acted immediately to obtain medical assistance for Mr Klum. The fact that he had to telephone for approval and then wait for the nurse to arrive is a matter of Departmental procedure, not the construction of Officer Woelfl. [236] Having regard to the uncontested fact that correctional officers are not permitted to render medical assistance, Officer Woelfl had no option but to call for assistance. [237] The evidence is that calling directly for an ambulance is a rare and unusual event and that the standard operating procedure is to call the nurse. ... [240] It was entirely reasonable for Mr Klum to be given a brief time in cell 225 to compose himself prior to the next part of the move to the observation cell, which included navigating a stairwell, for which Mr Klum was afforded assistance which by then he was prepared to accept. [241] Officer Woelfl was faced with a difficult set of circumstances and made judgements as he was required to do, which are supportable. 95There is no doubt on the evidence that Mr Klum was left in cell 225 for approximately eight minutes during which time Mr Woelfl made telephone calls to arrange the attendance of a nurse at the Correctional Centre. The core of the allegation, however, and which was said to give rise to gross negligence on Mr Woelfl's part, was that Mr Klum was left unattended in cell 225 "when it was clear he required medical attention." The Department submitted that what Mr Woelfl should have done was to have called an ambulance immediately. 96In alleging it was "clear" Mr Klum required medical attention, it is not apparent whether the allegation is in objective or subjective terms. In other words, whether it was clear to Mr Woelfl, or objectively clear that medical attention was required. It seems to us, however, that the allegation was that it was clear to Mr Woelfl. 97Mr Woelfl did, in fact, arrange for medical attention, but the allegation was also that Mr Klum should not have been left unattended for eight minutes and an ambulance should have been called immediately. 98The evidence was that it was not clear to Mr Woelfl, or the other two officers present, that Mr Klum needed immediate medical attention that required an ambulance to be called. It should have been clear to the officers that immediate medical attention was required, but that was not the allegation. Putting to one side for the moment whether Mr Woelfl should have inspected cell 219 and if he had he would have discovered a large amount of blood, the injuries to Mr Klum and the amount of blood on his person did not indicate to Mr Woelfl a serious injury warranting an ambulance being called immediately. Accordingly, it could not be said it was clear to Mr Woelfl that immediate medical attention was required. 99Harrison DP found that the allegation that Mr Woelfl was grossly negligent because he left Mr Klum for approximately eight minutes in cell 225 unattended when it was clear he required medical attention, was not sustained. His Honour was correct in that finding, but not for the reasons his Honour gave. If it was evident that Mr Klum had been seriously injured an obligation fell on Mr Woelfl to call an ambulance immediately and not leave Mr Klum unattended. 100In our opinion, the Department has failed to prove misconduct on Mr Woelfl's part arising from the allegation that Mr Klum was left unattended for eight minutes. Failure to preserve crime scene 101The next allegation was that Mr Woelfl was grossly negligent in that he did not remove Mr Johnson from cell 219 to ensure the crime scene integrity was preserved. A similar allegation was made against Mr Woelfl in the context of a failure to comply with s 13 (Serious Incidents) of the Operations and Procedures Manual ("the Manual") and Part D Serious Incident Response Policy ("the Response Policy"). In relation to that failure it was alleged: * In that you did not take reasonable steps to preserve the crime scene in response to a serious incident. * In that you did not inform the on call Manager of Security or General Manager of the incident. * In that you did not designate an officer to secure the crime scene until the arrival of the police. * In that you did not ensure that Inmate Johnson was placed in a separate cell. * In that you did not arrange for observations of Inmate Johnson to occur as to ensure that he did not interfere with the crime scene, either by washing or removing evidence from his body, clothes or cell. * In that you did not arrange for and or provide all written reports within a reasonable time. [sic] to the General Manager, from all staff involved in this incident. 102The evidence was that Mr Woelfl did nothing to preserve the scene in cell 219: he did not remove Mr Johnson from cell 219 and place him in a separate cell, he did not designate an officer to secure the scene in cell 219 until the arrival of the police, and he did not arrange for observations of Mr Johnson to occur as to ensure that he did not interfere with the scene, either by washing or removing evidence from his body, clothes or cell. 103The relevant findings of Harrison DP regarding the crime scene are at [243]-[245] of Woelfl (No 1): [243] I accept the evidence of Mr Schipp that all of these matters have their foundation in the failure to make a proper observation of cell 219. [244] As the Senior Officer in charge, Officer Woelfl was responsible for these errors of judgement, none of which I note go to the care and wellbeing of Mr Klum. [245] Failure to investigate, establish a crime scene and report, amounts to misconduct which warrants sanction. This misconduct is not, in my assessment, serious and wilful misconduct warranting termination of employment. 104Dealing firstly with the allegations regarding the failure to preserve a crime scene thereby constituting non-compliance with s 13 (Serious Incidents) of the Operations and Procedures Manual and Part D of the Serious Incident Response Policy. Section 13.4 of the Manual is entitled "Assaults, Sexual Assaults and Fights". An "assault" is defined as follows: An assault occurs when one person applies force of any kind (either directly or indirectly) to another person without his/her consent which will cause injury or personal discomfort to that person. 105Section 13.4.2.7 of the Manual provides that the senior custodial officer in charge: Shall ensure that, where possible, the crime scene is secured and any items of evidence are preserved until the police or Corrective Services NSW officers have completed their examination and collected any evidence which may be used in a court of law. 106It is a fact that Mr Woelfl did not secure cell 219 as a crime scene or preserve any items of evidence. He transferred Mr Klum out of cell 219 into cell 225 and left the other inmate, Mr Johnson, in cell 219. Indeed, no officer entered cell 219 until late morning on 10 June 2010. 107Although "crime scene" is not defined in those parts of the Manual that were in evidence, it is reasonably apparent that the site of an assault may be regarded as a crime scene. An assault may constitute a crime: see, for example, ss 59 and 61 of the Crimes Act 1900. 108Mr Woelfl did not regard cell 219 as a crime scene because he considered what had occurred was a minor altercation that did not result in other than minor injuries to Mr Klum. However, it should have been apparent to Mr Woelfl, a man of considerable experience, that what had occurred was an assault as defined in the Manual. We have no doubt that Mr Woelfl formed the view that what had occurred was an assault. He said so to the Nursing Unit Manager when he was attempting to arrange the on-call nurse. He asked Mr Pearcey to download the assault package. He knew from Mr Johnson that there had been "a minor push and shove type incident between two inmates." He said Mr Klum had a small amount of dried blood around his nose and that he "had minor abrasions to his nose and mouth". Mr Klum was complaining of a headache, was holding his head and according to Mr Woelfl was unsteady on his feet. 109We note at some point during the early hours of the morning of 10 June 2010, whilst Mr Klum was under observation by the nurse, the nurse advised Mr Woelfl that Mr Klum may have suffered a broken nose. Still no action was taken by Mr Woelfl to secure cell 219, despite Mr Woelfl believing an assault had occurred. Moreover, the Inmate Injury Questionnaire, which Mr Woelfl said he "breezed through", indicated Mr Klum claimed he was assaulted and wanted the police to take action. Mr Woelfl saw that Mr Klum wanted police involvement. He could not have failed to see that Mr Klum claimed he was assaulted. Nonetheless, Mr Woelfl took no steps to secure cell 219 as a crime scene. 110Mr Woelfl referred to s 13.4.2.7 of the Manual where it indicated that the crime scene was to be secured "where possible". Mr Woelfl contended he was "extremely busy that night attending to Inmate Klum, organising medical attention, directing staff and completing the necessary paperwork". Further, he contended that there were only four staff on duty in the main area and inmate movements were limited as much as possible as other inmates were asleep. This seems to suggest that Mr Woelfl may have given consideration to the need to establish a crime scene but was simply too busy. However, there is no indication in the evidence at all that Mr Woelfl gave consideration to securing cell 219. On the contrary, he did not regard it as a crime scene. 111There was a submission made to the effect that it was too difficult to remove Mr Johnson from cell 219. Reference was made to Harrison DP's finding at [221]: [221] I cannot accept the defence that it may have been dangerous to enter cell 219 with Mr Johnson in it. There were three officers, an investigation could and should have been undertaken either when Mr Klum was in Cell 225 or later when Mr Klum was in the observation cell by removing Mr Johnson to another cell. 112Counsel for Mr Woelfl submitted: Harrison DP says that there is no reason to think that Mr Johnson wouldn't have co-operated. That ignores the fact that an inmate, being asked to move from his own cell in which he is residing in the middle of the night, might lead to non co-operation, which would then lead to force and all of those things. 113The submission suggests that under no circumstances would it be appropriate to remove Mr Johnson because he might not cooperate. There was nothing in Mr Johnson's attitude or demeanour to indicate he was non-cooperative. On the contrary, he was said to have been cooperative and was expecting officers to enter cell 219. There were three officers present. It is entirely feasible that Mr Johnson could have been handcuffed, removed to another cell, his clothing removed for evidentiary purposes and photographs taken in accordance with s 13.4.2.4 of the Manual. 114The Manual requires that the procedures it lays down must be "strictly adhered to". Mr Woelfl did not comply with the Manual's requirement to secure a crime scene. 115The next consideration is whether Mr Woelfl was grossly negligent in the performance of his duties in that he did not remove Mr Johnson from cell 219 to ensure the crime scene integrity was preserved. 116The allegation is not one of Mr Woelfl being merely negligent, but rather that he was "grossly negligent". It is not entirely clear to us in what sense the phrase "grossly negligent" was used by the Department; whether it was used in a criminal law or tort law sense or according to ordinary English usage. We propose to proceed on the basis that it was used in the sense of ordinary English usage. 117"Negligent" may be defined as "failing to show reasonable care": Oxford English Dictionary, Online, Oxford University Press, 2014. Gross negligence is serious carelessness. In using the term "grossly negligent" in connection with Mr Woelfl's failure to remove Mr Johnson from cell 219 in order to preserve the crime scene, we understand the Department to be alleging Mr Woelfl not only failed to exercise reasonable care in the performance of his duties but he did not exercise any care or, alternatively, seriously disregarded his duties. 118We have found that Mr Woelfl had a duty to secure cell 219 as a crime scene. It was reasonably foreseeable that if that was not done it might seriously compromise any police investigation into whether, in fact, an assault had occurred, the nature of the assault and who may have perpetrated the assault. Moreover, it could have the effect of jeopardising any claim by Mr Klum, if he had lived, for damages for assault. 119Despite being obligated to do so, Mr Woelfl took no steps at all, at any stage, to secure cell 219. It was not as though Mr Woelfl was not aware that a crime scene needed to be established. Section 13.8 - Crime Scene Management of the Manual sets out the minimum standards for managing crime scenes associated with incidents likely to be investigated by the Department, police or other external agencies. These incidents may include assaults and fights. 120In his oral evidence in the first instance proceedings, Mr Woelfl said he secured cell 225 because he believed it was necessary to preserve a crime scene as "Mr Klum had hit his head somewhere or inflicted harm on himself." Mr Woelfl arrived at this view because of a cut on Mr Klum's forehead after he had been transferred to cell 225 and because there were "a couple of drops of blood" in cell 225. Mr Klum did not consider cell 219 was a crime scene, despite the presence of blood, because he: [B]elieved blood in 219 was from a bleeding nose which naturally happens and blood in 225 is where Mr Klum had hit his head somewhere, or inflicted harm on himself. 121That is an entirely unconvincing answer given Mr Woelfl was aware there had been an altercation between Mr Klum and Mr Johnson in the cell and believed an assault had occurred. 122We find Mr Woelfl was guilty of misconduct in failing to preserve the crime scene. Failure to report 123It was alleged against Mr Woelfl that he failed to comply with s 13 (Serious Incidents) of the Manual and Part D of the Response Policy: In that you did not inform the on call Manager of Security or General Manager of the incident. ... In that you did not arrange for and or provide all written reports within a reasonable time. [sic] to the General Manager, from all staff involved in this incident. 124In respect of reporting requirements, at [26] of Woelfl (No 1) Harrison DP stated: [26] I have completely reviewed all of the evidence in respect to these issues and find that there was adequate compliance with Departmental reporting requirements, any deficiencies are minor and understandable in the circumstances and do not amount to misconduct warranting sanction. 125However, at [245] his Honour found: [245] Failure to investigate, establish a crime scene and report, amounts to misconduct which warrants sanction. This misconduct is not, in my assessment, serious and wilful misconduct warranting termination of employment. (our emphasis) 126Mr Woelfl's defence to these allegations was that what had occurred involving Mr Klum was not a serious incident. Therefore, the provisions of the Manual and Response Policy did not apply. However, it was asserted in any event that Mr Woelfl did inform the on call Manager of Security or General Manager of the incident and did arrange for and or provide all written reports within a reasonable time to the General Manager, from all staff involved in the incident. 127The Response Policy provides that in the case of serious incidents including "serious assaults" the most senior officer on duty must telephone the general manager and the Duty Officer and inform them of the incident and this must be done as soon as possible. 128As we find under the next heading, an assault is a serious incident. However, Mr Woelfl judged the incident as not constituting a "serious assault". Whilst further inquiry by Mr Woelfl would have indicated that in all probability a serious assault had occurred, that was not done and so given the limited information relied upon by Mr Woelfl his position was that it was open to him to conclude the assault was not serious and, therefore, no obligation arose to report under the Response Policy. 129As to whether there was an obligation on Mr Woelfl under the Response Policy to telephone the general manager as soon as possible we are prepared to give Mr Woelfl the benefit of the doubt that because he considered there had not been a serious assault he was not required to contact the general manager. The doubt arises because in our opinion an assault of any kind is a serious incident, but we are prepared to accept that Mr Woelfl believed he was only required to notify under the Response Policy if there had been a serious assault. 130In any event, we note that Mr Woelfl advised senior officers of the incident immediately upon those persons attending for duty, namely, Assistant Superintendent Vial and Senior Assistant Superintendent Miles. Mr Woelfl advised Ms Mustard, Manager of Security, immediately upon the commencement of her duty at 7.30 am. 131We note that s 13.4.2.1 of the Manual requires the senior custodial officer in charge to report "the assault" or "fight" to the Duty Officer at Long Bay within two hours of the incident occurring. However, no allegation was made that Mr Woelfl had failed to comply with this provision. 132Section 13.4.1.1 of the Manual requires the "discovering officer" to report the matter to the general manager or most senior custodial officer in charge of the Correctional Centre without delay. Assuming Mr Woelfl was the discovering officer, he could hardly report the matter to himself as the senior officer in charge. 133In relation to the alleged failure to arrange for and or provide all written reports within a reasonable time, the allegation appears to lack precision and substance and we do not propose to take it any further. 134We find that the Department has not proven the allegations regarding failure to report. Breach of clause 253 of the Crimes (Administration of Sentences Regulation) 2008 135It was alleged Mr Woelfl breached cl 253 of the Crimes (Administration of Sentences Regulation) 2008 ("the Regulation"): In that you did not report that Inmate Johnson was suspected of committing an offence against Inmate Klum to the General Manager immediately. In that you did not confine Inmate Johnson in an appropriate place of confinement pending instructions on how the inmate should be dealt with in response to a serious incident occurring. 136Clause 253 provides: 253 Suspected offences by inmates (1) A correctional officer or departmental officer who suspects that an inmate has committed, or is about to commit, an offence must report that fact to the general manager immediately. (2) A correctional officer may confine any such inmate to the inmate's cell, or in some other appropriate place of confinement, pending instructions as to how the inmate should be dealt with. (3) An inmate in respect of whom one or more offences have been reported may be confined under this clause, whether for one or more periods of confinement, for no more than 48 hours in total in respect of those offences. 137In relation to the failure to confine Mr Johnson in an appropriate place, we presume Harrison DP's finding in Woelfl (No 1) at [245] (failure to establish a crime scene) is the relevant finding. 138In relation to the alleged breach of cl 253(1) of the Regulation, we note that "general manager" is defined in s 3 of the Crimes (Administration of Sentencing) Act 1999 as follows: general manager, in relation to a correctional centre, means the general manager of the correctional centre and includes any person who is for the time being in charge of the correctional centre. 139The evidence was that at the time of the incident involving Mr Klum on 10 June 2010, Mr Woelfl was in charge of the Grafton Correctional Centre and, therefore, the "general manager". In those circumstances we do not consider cl 253(1) applied to Mr Woelfl: he could not report the incident to himself. 140In relation to cl 253(2) of the Regulation, Mr Woelfl was at the same time a general manager and a correctional officer. The subclause, therefore, had application to him. The provision was expressed in permissive terms and it was a matter for Mr Woelfl to exercise his discretion as to whether it was necessary to comply with cl 253(2). 141The allegation against Mr Woelfl was that he did not confine Mr Johnson in an appropriate place of confinement etc, in response to a serious incident occurring. The serious incident being referred to in the allegation was an offence that an officer suspects was committed or was about to be committed: see cl 253(1) of the Regulation. It was submitted for Mr Woelfl that it could not have been evident that a serious incident had occurred. 142Mr Woelfl believed an assault had occurred, which must have at least raised a suspicion in his mind that Mr Johnson may have committed an offence. An assault may be a criminal offence. An assault occasioning actual bodily harm carries a penalty of imprisonment of up to five years: s 59 of the Crimes Act. Even if actual bodily harm is not occasioned, the penalty is imprisonment for up to two years: s 61 of the Crimes Act. In our opinion, an assault constitutes a serious incident. 143Given what we said earlier about the need to secure the crime scene in cell 219, the circumstances of the incident involving Mr Klum required an exercise of discretion in favour of moving Mr Johnson out of cell 219 into an appropriate place of confinement. Accordingly, we find Mr Woelfl failed to comply with cl 253(2) of the Regulation. 144The failure by Mr Woelfl to move Mr Johnson out of cell 219 into an appropriate place of confinement amounted to misconduct. Breach of duty of care 145It was alleged against Mr Woelfl that he engaged in misconduct as follows: About 2.20am, 10 June 2010, when responding to a cell-call (knock up) from Inmate Ian KLUM (MIN 371957) at cell 219, 5 Wing, Grafton Correction Centre, you breached your duty of care to Inmate KLUM by failing to properly respond to the incident in that: a. you did not turn on the cell light to inspect the cell upon arrival; b. you did not inspect the cell at any time during the incident or thereafter; c. you did not properly inspect inmate KLUM's injuries or the cell to assist in determining what had occurred despite finding inmate KLUM sitting slouched on the floor with blood on his face. 146Mr Woelfl did not appear to cavil with the proposition that he owed a duty of care to Mr Klum. We propose to proceed on the basis that a duty of care was owed. 147The evidence regarding the cell light was not entirely straightforward. Mr Woelfl indicated that when he looked into cell 219 for the first time he saw that Mr Johnson had his reading light on next to his bed. He said combined with the lighting from outside the cell the light from the reading lamp allowed him to see clearly into the cell. Mr Woelfl said he could not recall whether he turned on the internal cell light on the ceiling of the cell. He agreed, however, there was nothing stopping him from turning on that light. It appears that in addition to the ceiling light there was full neon lighting available in the cell. Mr Woelfl agreed he did not turn on the full neon lighting. It was put to Mr Barnett in cross-examination that he made no attempt to turn on the light in cell 219. Mr Barnett said there was no need for him to do that. Mr Pearcey said there was a sort of partial light by the bunk and "the rest is pretty dark". The proposition was then put to Mr Pearcey that the poor lighting could have been rectified by turning on the light, and Mr Pearcey responded: Could have added a bit more light if you turned the light on. 148The evidence tends to point to the likelihood that the cell light was not turned on. However, given the Briginshaw standard applies, we are reluctant to conclude Mr Woelfl "did not turn on the cell light to inspect the cell upon arrival". We think it falls into the category of "inexact proofs" or "indefinite testimony". The critical issue, however, is not whether there was a failure to turn on the cell light, but rather whether Mr Woelfl breached his duty of care because he "did not inspect the cell at any time during the incident or thereafter". 149It is not entirely clear from Woelfl (No 1) whether Harrison DP found there was a failure to turn on the cell light. To the extent his Honour may have found it was not turned on, we consider his Honour erred. 150In any event, we are not satisfied, given the configuration of the cell and the position of the beds that simply turning on the cell light and looking in from the cell doorway would have allowed a proper inspection to occur. It would have been necessary to enter the cell. 151In our opinion, if Mr Woelfl had carried out an inspection of cell 219 for the purpose of attempting to determine what had occurred he could not have failed to notice the substantial amount of blood that was seen later in the morning of 10 June 2010 when the cell was inspected. He would also have seen Mr Klum's broken spectacles on the floor of the cell. Nonetheless, it was submitted for Mr Woelfl that a cell inspection and identification of blood in the cell would not have led to any different regime of treatment for Mr Klum and there was no evidence it would have led to a different outcome. 152We do not accept that submission. Mr Woelfl initially maintained that had he inspected cell 219 further and observed the amount of blood loss he would have taken Mr Klum directly to observation, but he would not have called an ambulance. Instead, he would have called the nurse to assess Mr Klum. Under cross-examination, however, when asked what he would have done differently if he had gone into the cell and seen the blood, Mr Woelfl stated: If it was a real major blood loss I probably would have called an ambulance. 153The presence of a large amount of blood and broken spectacles would have presented Mr Woelfl with an entirely different scenario to that of seeing minor abrasions on Mr Klum's face and a small amount of blood. Mr Woelfl knew that Mr Klum was unsteady on his feet, he had blood around his nose and mouth, he was complaining of a headache and he was "spinning out". If he had inspected cell 219 he would have found a large amount of blood in the cell including on Mr Klum's bed. It is a reasonable inference to draw that even if he did not decide on his own account to call an ambulance, after phoning the Nursing Unit Manager, as he was required to do, and advising the Manager of what he knew, the advice to Mr Woelfl would have been to seek urgent medical attention in the form of an ambulance. Whether this course of action would have saved Mr Klum's life is immaterial to the issues we are required to determine. 154Turning to the justifications for not inspecting cell 219, it was submitted for Mr Woelfl that on the basis of what he did see when he arrived at cell 219, there was no need to conduct an inspection in order to comply with any duty of care: Mr Klum's injuries were minor and there were only a few drops of blood visible and a little blood on Mr Klum's face. According to Mr Woelfl, Mr Klum walked to the cell door fully clothed ready to depart the cell. Mr Woelfl claimed he believed Mr Klum was feigning injury when he slumped to the floor and crawled to cell 225. Mr Woelfl said Mr Johnson indicated there was only a minor altercation and he only pushed Mr Klum because Mr Klum was attacking him. Mr Klum, at that stage, did not complain of an assault. 155It was submitted for Mr Woelfl that the Department did not adduce any evidence to counter the officers' evidence that a cell should not be entered except where strictly necessary, nor to counter evidence that on a night shift with reduced staff and an overriding desire not to disturb other inmates, it is reasonable to a take a generally more conservative approach to the movement of inmates and investigation of matters. 156Against the rationale or justification for not inspecting cell 219 are the following considerations: (1)Mr Woelfl was the senior correctional officer on duty on 10 June 2010. He had a duty of care towards inmates in the Correctional Centre. (2)There was a knock up call from Mr Klum in which Mr Klum said he was "so sick" and that he was bleeding from the mouth and nose. (3)When Mr Woelfl arrived at cell 219 he saw Mr Klum sitting, slouched, on the floor. (4)Mr Woelfl asked Mr Johnson, what was going on. Mr Johnson indicated there had been an altercation between he and Mr Klum. (5)Mr Woelfl instructed Mr Klum to come to the cell front door. Mr Klum said he could not. Mr Woelfl said Mr Klum slowly got to his feet and as he got to the door he sank slowly again to the ground. Mr Pearcey said Mr Klum was "sort of laying, sitting slouched on the floor moaning about my (sic) head hurts..." Mr Pearcey said Mr Klum was complaining of a headache and was holding his head. (6)Mr Klum crawled unaided across the floor from cell 219 to cell 225. He attempted to rise but was unable to do so. (7)After securing Mr Klum in cell 225 Mr Woelfl asked Mr Pearcey to download an assault package and complete the forms. He then telephoned the Nurse Unit Manager to arrange the attendance of the on-call nurse. In speaking to the Nurse Unit Manager Mr Woelfl said there had been an assault and that he wanted Mr Klum checked out for head trauma because he was sluggish on his feet. When he spoke to the on-call nurse he indicated Mr Klum was complaining of a headache. (8)When the officers arrived back at cell 225 to transfer Mr Klum to the observation cell Mr Woelfl told Mr Klum to "get up", but Mr Klum said he could not and that he was "spinning out". It is evident from the CCTV footage that officers found it necessary to assist Mr Klum to the observation cell by the officers each holding an arm. Mr Klum was not resisting. Mr Pearcey said in cross-examination that as Mr Klum was assisted down the stairwell to the observation cell he was "like a rag doll, sort of floppy." (9)It is apparent that Mr Woelfl believed there had been an assault in cell 219. Mr Klum was showing signs of being hurt beyond just a bloody nose: he could not walk to cell 225 and was complaining of a headache. That Mr Woelfl saw only a small amount of blood is not indicative of an absence of injury. Indeed, despite not seeing large amounts of blood. Mr Woelfl nevertheless, considered that Mr Klum may have suffered some trauma to the head. (10)Despite the indications that Mr Klum might have suffered injury more serious than a bleeding nose (Mr Woelfl considered it at least a possibility Mr Klum had suffered trauma to the head), no inspection was undertaken of cell 219 to determine whether further light could be thrown on what may have occurred. (11)Part of the justification for not inspecting cell 219 was that there did not appear to Mr Woelfl (or to Messrs Barnett and Pearcey) to have been a serious incident. That is somewhat inconsistent with Mr Woelfl forming the view an assault had occurred and his suspicion, at least, that Mr Klum may have suffered head trauma because he was "sluggish on his feet" and complained of a headache. (12) A good deal was sought to be made by Mr Woelfl of the fact that Nurse White, on her examination of Mr Klum, considered his injuries to be minor, thereby reinforcing the proposition that no grounds existed to establish a crime scene or inspect cell 219. That does not change the fact that Mr Woelfl considered an assault had taken place and Mr Klum may have suffered head trauma. What is more, the Nurse considered the injuries to Mr Klum to be minor because she was not aware of the blood loss evident in cell 219 because Mr Woelfl failed to inspect the cell. Having witnessed all that he had regarding Mr Klum's condition and his inability to walk, together with the fact that Mr Klum was complaining of a headache and had been the subject of assault, if Mr Woelfl had been able to get past his antipathy and predisposition for believing Mr Klum was faking, and instead had adopted a more objective mindset, it may have become apparent to him there was a need to inspect cell 219. (13)Once Mr Klum had been moved to cell 225, it was open to Mr Woelfl to inspect 219. There was no sign Mr Johnson would become uncooperative or aggressive and Mr Woelfl had Mr Pearcey, Mr Barnett and Ms Gilbert available to assist. An inspection of cell 219 would have been no more disruptive than what had already occurred in transferring Mr Klum to cell 225. (14)The stated reluctance to enter cell 219 after Mr Klum had been transferred, sits somewhat oddly with the preparedness to enter cell 225 in order to transfer Mr Klum to the observation cell. This is particularly so if it was believed or thought a possibility that Mr Klum was feigning injury and the officers were fearful of an attack. Mr Johnson presented no more a threat in cell 219 than Mr Klum did in cell 225. Mr Johnson was described as cooperative. Indeed, Mr Johnson was expecting officers would enter the cell to carry out an inspection; Mr Johnson showed no signs of aggression or resistance at any stage. (15)Mr Woelfl's apparent belief that Mr Klum may have been feigning injury seems to have been a further reason why no inspection was carried out of cell 219. Even if it were accepted that Mr Woelfl genuinely felt Mr Klum was feigning injury, it is apparent that Mr Woelfl also believed there was a possibility Mr Klum had been more seriously injured than the minor abrasions and small amount of blood indicated. That being so, Mr Woelfl was obliged to inspect cell 219 to assist in making a more informed assessment of what may have occurred and, if there were indications of a more serious injury to Mr Klum, to decide whether Mr Woelfl's duty of care required him to seek more urgent medical treatment. (16)On the question of feigning injury, the only basis for Mr Woelfl believing this might be the case was previous experience with other inmates. There was no objective basis for believing Mr Klum was feigning injury. (17)Later in the morning, Nurse White advised Mr Woelfl that Mr Klum might have a broken nose and his pulse was slow. Still, Mr Woelfl took no steps to inspect the cell. 157It was alleged that Mr Woelfl did not properly inspect Mr Klum's injuries before Mr Klum was transferred to cell 225. Mr Woelfl's evidence was that he did inspect the injuries. But we note it was done whilst Mr Klum was on his knees as he crawled to cell 225. Any inspection was entirely cursory. 158Notwithstanding Mr Klum's alleged lack of cooperation - which may well have been caused by his injuries thereby leading to disorientation or confusion or because in Mr Klum's mind it was blindingly obvious he was injured - there was no effort made by Mr Woelfl, in the process of transferring Mr Klum to cell 219, to make a reasonable attempt to explore with Mr Klum the nature of his injuries or how they came to be inflicted in order to determine whether Mr Woelfl should inspect the cell. Mr Woelfl displayed a marked degree of antipathy towards Mr Klum, manifested by his instruction to Mr Barnett to let Mr Klum crawl across the floor, when the appropriate thing to have done was to attempt to seek more information about the nature of Mr Klum's injuries. It may have been that Mr Klum would not have cooperated, but no reasonable attempt was made to ascertain the nature of Mr Klum's injuries before it became evident there would be no cooperation. We do not regard Mr Barnett's short-lived attempt to assist Mr Klum to his feet and Mr Klum's apparent shrugging off that assistance as displaying such a degree of non-cooperation that no further attempt should have been made to investigate Mr Klum's injuries. 159We find that Mr Woelfl was guilty of misconduct in that: (1)he did not inspect cell 219 at any time during the incident or thereafter; (2)he did not properly inspect Mr Klum's injuries or the cell to assist in determining what had occurred despite finding Mr Klum sitting slouched on the floor with blood on his face. Nature of the misconduct 160We have found Mr Woelfl was guilty of misconduct in four respects, namely, that he: (1)did not preserve the crime scene in cell 219; (2)did not move Mr Johnson out of cell 219 into an appropriate place of confinement; (3)did not inspect cell 219 at any time during the incident or thereafter; and (4)did not properly inspect Mr Klum's injuries or cell 219 to assist in determining what had occurred despite finding Mr Klum sitting slouched on the floor with blood on his face. 161Harrison DP found that Mr Woelfl failed to investigate, establish a crime scene and report and that this amounted to misconduct that warranted sanction. The reference to a failure to investigate was a loose use of language, but we believe it includes the failure of Mr Woelfl to inspect cell 219 and Mr Klum's injuries. Having regard to the manner in which the Deputy President addressed the allegations, the finding of a failure to establish a crime scene would seem to encompass the failure to move Mr Johnson out of cell 219 into an appropriate place of confinement. 162There was no error by his Honour in making the findings in the preceding paragraph except that we do not agree with his Honour that the reporting allegations were made out and in that respect his Honour erred. His Honour also erred if the effect of his findings was that Mr Woelfl did not turn on the cell light. 163Harrison DP found that the misconduct was not "serious and wilful misconduct" warranting termination of employment. As we earlier explained, this was an error and was found to be so by the majority in Woelfl (No 2). Nevertheless, Harrison DP was correct in finding misconduct. However, what his Honour did not do, as he was required to, was "to evaluate whether, notwithstanding the misconduct found, he may, nonetheless, find that the threatened dismissal of Officer Woelfl was harsh, unreasonable or unjust": Woelfl (No 2) at [84]. In this particular case, Harrison DP was required to weigh up the gravity of the misconduct against the consequences of dismissal for Mr Woelfl. His Honour did not and could not undertake that exercise because he did not make any reasonably precise finding regarding the gravity of the misconduct. 164Mr Woelfl's failure to preserve the crime scene, and failure to move Mr Johnson out of cell 219 into an appropriate place of confinement, amounted to neglect of his duty not only towards his employer but also Mr Klum. It had the potential to seriously compromise any investigation into what occurred in cell 219 and to discover who, if anyone, may have been responsible for Mr Klum's injuries. Mr Woelfl was aware of his responsibility to preserve a crime scene in order to protect evidence. Given his belief that an assault had occurred in cell 219 and that he considered there was the possibility that Mr Klum had suffered head trauma and was unsteady on his feet, the objective circumstances required Mr Woelfl to preserve the crime scene. 165For the reasons we have stated, Mr Woelfl's failure to inspect cell 219 amounted to neglect of his duty, as did the failure to make a reasonable attempt at ascertaining the nature of Mr Klum's injuries before standing by whilst Mr Klum crawled across the floor unaided. 166We would not use the descriptor "egregious" to describe Mr Woelfl's misconduct. Mr Woelfl was not entirely uncaring towards Mr Klum. He took steps to arrange for medical aid for Mr Klum despite saying he believed the injuries were minor and that he thought Mr Klum was feigning injury. 167On the other hand, Mr Woelfl's misconduct could not be regarded as minor or inconsequential. The failure to inspect cell 219 meant that Mr Woelfl deprived himself, and consequently the Department, of the opportunity of making a more informed assessment of the nature of Mr Klum's injuries. If he had done so he would have been in a better position to decide an appropriate course of action, or at least be able to seek advice on an appropriate course of action having provided more information about Mr Klum's condition, including the fact there may have been significant blood loss. It is a safe inference to draw that in all likelihood this would have led to far greater urgency being applied to Mr Klum's treatment. 168It is not our position, however, that Mr Klum's death meant that Mr Woelfl's misconduct was serious. The misconduct was serious because Mr Woelfl failed to carry out fundamental aspects of his duty as senior correctional officer in charge in circumstances where the health and safety of an inmate was at risk and further investigation into potential criminal conduct in cell 219 may have been seriously compromised. Whether threat to dismiss harsh, unreasonable or unjust 169In Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 at 465 McHugh and Gummow JJ stated: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 170The threat to dismiss Mr Woelfl was not unjust because he is guilty of the more serious allegations of misconduct made against him. It was not unreasonable for the same reason; the misconduct was not found on the basis of inferences. Is it harsh? That question requires us to weigh up the gravity of the misconduct, which we have found to be serious, against the personal and economic circumstances of Mr Woelfl. 171There are quite strong factors operating in Mr Woelfl's favour: his long and good employment history and the fact that loss of employment will have serious personal and economic consequences. Indeed, the consequences are severe. In this regard we note what Boland J found in the injunctive proceedings seeking a stay of the dismissal threat: 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. In considering the balance of convenience his Honour stated: [68] ...In respect of Mr Woelfl he has been employed with the respondent for approximately 26 years, most of his adult working life. The prospect of him finding employment that suits his skills and experience in the local area is slim indeed.... All three have been the subject of vilification and abuse by the anonymous critics that appear to inhabit some of the social media and to some extent the officers have become pariahs, even in their hometown. The stigma attached to them in their local area would most likely act as a disincentive to hiring them, even in casual employment. Moreover, in the intervening period between dismissal and any determination regarding their unfair dismissal claims, the three officers would have to endure the shame brought upon them by the dismissal and the continued, and probably heightened, denigration and abuse. [69] The loss of income through dismissal, even for a relatively short period of three to six months, places in jeopardy their ability to meet their expenses and retain the family home. The evidence is that each of them may be forced to sell their homes, uproot their families and move to where employment was available... ... [75] In any event, this case is out of the ordinary. It involves persons in a particular line of work dominated by a single employer in the Grafton area; it involves three employees living and working in a country town where the prospects of alternative employment are quite limited, with the potential of forcing the individuals to sell their homes and displacing their families... 172Additionally, Mr Woelfl has been suspended from his employment for a long period of time with the ever-present threat of dismissal. The experience has been stressful and Mr Woelfl continues to be under medical care. It is arguable that his experiences (the stress of disciplinary issues and six proceedings before courts and tribunals) since June 2010 have been sufficient punishment and that it is unlikely Mr Woelfl would commit further misconduct. 173None of the foregoing considerations were taken into account by Harrison DP. His Honour, instead, found that Mr Woelfl's conduct amounted to misconduct that warranted sanction, but not "serious and wilful misconduct warranting termination of employment" (Woelfl (No 1) at [245]). Although not by express reference to s 89(8) of the IR Act, his Honour purported to impose on the order made under s 89(7), a term or condition that Mr Woelfl be returned to employment as a Corrective Services Officer at Grafton Correctional Centre subject to demotion to a lower grade. 174On the initial appeal, both parties submitted that the imposition of the demotion condition was beyond power. The Full Bench in Woelfl (No 2) agreed (at [79] and [87]). The Full Bench held that the Commission's jurisdiction under s 89(7) was "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" (see [79]). 175Whilst s 89(8) of the IR Act permits an order under s 89(7) to be made on such terms and conditions as the Commission determines, it only permits an order of an ancillary nature that is necessary for the proper and effectual performance of the primary order: Western Sydney Area Health Service v. Australian Salaried Medical Officers' Federation (NSW) [2004] NSWIRComm 246; (2004) 138 IR 203 at [43]. An order to the effect that the employee be demoted is not necessary for the proper and effectual performance of an order that the employer not dismiss the employee in accordance with a threat of dismissal. 176In other words, there is no "halfway house"; there is no scope under a combination of ss 89(7) and 89(8) to order demotion, for instance, or any other disciplinary action if the tribunal were of the view that it would be harsh to permit a threat to dismiss to be implemented, but that the nature of the misconduct was such that it would not be appropriate or it would be impracticable to allow the employee to continue in his or her present role. 177Unlike s 89(2) of the IR Act, the Commission is unable, under ss 89(7) and 89(8), to order re-employment in another position (e.g., a position lower in rank) if it considers that it would be "impracticable" to reinstate the applicant to his or her former position. The Commission is effectively limited to leaving the decision to the employer as to whether the threat of dismissal is carried out by declining to make an order under s 89(7), or preventing the threat from being carried out because to do so would be harsh, unreasonable or unjust. 178Thus, despite a dismissal being defined to include a threatened dismissal, the options available to the Commission to deal with a threatened dismissal are fewer than what are available to deal with an actual dismissal. 179Counsel for the PSA, in supplementary written submissions, put forward the following propositions: Accordingly if, contrary to the primary submissions made by the PSA, the Full Bench considers that Mr Woelfl has engaged in misconduct, but also considers that dismissal is a disproportionately harsh penalty so that the Department of Corrective Services is entitled to impose some lesser penalty, then the Full Bench could make an order in the following terms: 1. Pursuant to s.89(7) of the Industrial Relations Act 1996 the Department of Corrective Services is not to terminate the employment of Richard Woelfl for any reason relating to the matters referred to in the letter to Mr Woelfl from the Department dated 28 February 2012 indicating that the termination of his employment was being considered. 2. It is a condition of the restraint in Order 1 that, in relation to the finding of misconduct at paragraph [ ] above, in the event that the Department of Corrective Services decides to impose an alternative penalty from counselling up to and including demotion to Correctional Officer (First Class-Second Year), Mr Woelfl accepts the penalty so imposed. 180We seriously doubt that s 89(8) of the IR Act permits the type of order proposed by the PSA. First, the proposed order countenances disciplinary action being taken by the Department, which may or may not be taken. If it is not, the order would be pointless and of no effect. Secondly, the order directs Mr Woelfl to accept any disciplinary action imposed by the Department. The effect of such an order, if disciplinary action were taken, would be the same as if the Commission ordered disciplinary action in the first place as a condition attaching to an order under s 89(7). Such an order is beyond power. 181In any event, after a great deal of deliberation over the question of whether dismissal in this case would be harsh, the conclusion we finally reached is that in light of the seriousness of the misconduct it would not. We so find. In those circumstances, no basis exists for an order to be made under s 89(7). It is a matter now for the Department to decide whether it wishes to proceed to implement its threat. Cross-appeal 182Given our findings regarding the Department's appeal, we propose to grant leave and dismiss the PSA's cross-appeal. Orders 183The 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2014