Industrial Relations Commission New South Wales Medium Neutral Citation: Bindley v Secretary, Industrial Relations for Corrective Services NSW [2017] NSWIRComm 1026 Hearing dates: 19, 20 April 2017 Date of orders: 21 April 2017 Decision date: 21 April 2017 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Public sector disciplinary appeal dismissed Catchwords: PUBLIC SECTOR DISCIPLINARY APPEAL - hearing de novo – Commission not to confine itself to misconduct alleged – appeal does not turn on whether misconduct as alleged occurred - respondent to appeal not confined to matters on which disciplinary action taken - no requirement on the Commission to make a finding that misconduct occurred – these propositions doubted but followed as binding PUBLIC SECTOR DISCIPLINARY APPEAL – jurisdiction protective of public service and public PUBLIC SECTOR DISCIPLINARY APPEAL - Commission to determine whether the decision imposed was correct or preferable decision in the circumstances PRECEDENT – decision of Industrial Court binding on Commission – to be followed even if doubted OBLIGATIONS OF EMPLOYEES WITHIN UNIFORMED SERVICES – employees within hierarchical rank structure obliged to obey orders – orders to be obeyed even if employee has different view of appropriate practice SUSPENSION OF EMPLOYEES – employees suspended may suffer losses other than pecuniary losses Legislation Cited: Industrial Relations Act 1996 ss.100C(2), 100(C(3) Evidence Act 1995 s.140 Cases Cited: Calman v Commissioner for Police (1999) 167 ALR 91 Secretary, Department of Justice v Schoeman (2014) NSWIR 40 Category: Principal judgment Parties: Mr Matthew Bindley (appellant) Secretary for Industrial Relations for Corrective Services NSW (respondent) Representation: Counsel: R Reitano (appellant) S B Benson (respondent ) Solicitors: W G McNally Jones Staff (appellant) Crown Solicitor (respondent) File Number(s): 2016/00350801 Judgment 1. I give this decision as an ex tempore decision because, in my view, I am obliged to furnish the parties with a decision so soon as reasonably practicable consistent with giving fair consideration to the evidence and to the arguments. 2. Throughout the proceedings I have paid close attention to both the evidence and the arguments and I have formed a view. Having formed a view and having formed the reasons for that view, I regard it as a proper approach to convey my decision to the parties now rather than to retire and issue a written decision in the fullness of time. The fact that I do not refer exhaustively to the submissions which were helpfully advanced by both counsel does not mean that I have not had regard to them; I have. The fact that I do not refer to every stick of the evidence does not mean that I have not considered and weighed it, and I give my decision mindful, I believe, of the relevant case law surrounding the exercise of the Commission's jurisdiction as of this kind even if do not set out the relevant statutory provisions exhaustively in their terms. 3. This is an appeal under Part 7 of the Industrial Relations Act 1996 ('the Act') brought by Mr Matthew Bindley against the disciplinary decision of the respondent to reduce him in rank and consequentially transfer him to another work area. Such a decision is an appealable decision within the meaning of s. 97(1)(b) of the Act. The appeal was brought within the statutory time limit. 4. Mr Bindley was subjected to the disciplinary sanction of reduction in rank specifically from the rank of Senior Correction Officer to First Class Correction Officer year 2. That is, one step in rank, although the difference between being a senior and being a correctional officer is in terms of responsibility and duty is a large one. That sanction was imposed for reason of six matters which were set out in a letter from the acting Commissioner, Mr Grant, to Mr Bindley on 16 August 2016. Those matters relate to a series of related incidents which occurred on the morning of 15 August 2015. One of the six matters was abandoned by the respondent in the course of these appeal proceedings. Applicable law 1. I turn first to the law within which this matter falls to be determined. A hearing of this kind is a hearing de novo, as s 100C(2) of the Act provides. I note also s. 100C(3) which addresses questions going to procedural fairness. The jurisdiction that the Commission exercises in a matter of this kind is one which is protective of the Public Service, of public servants and, I divine, of the public. It is important to understand that this appeal does not proceed on the basis of determining whether or not the allegations put to Mr Bindley in the correspondence to him - as, with some variations, they were ultimately held to be made out - can be sustained in their terms. That is not the approach which, on the jurisprudence of the Commission as it binds me has been established, is to be adopted. 2. The Commission is not bound to carry out its review in an appeal of this sort only in relation to the specific allegations of misconduct upon which the punishment was based. Indeed it must not confine itself to those matters. Surprising though it may seem at first blush, the Act does not contemplate a public sector disciplinary appeal against a decision imposed because of what was held to be misconduct being dealt with by a determination of whether or not the employee had engaged in misconduct. And the Commission is not entitled to disregard matters relevant to the exercise of its discretion to determine such an appeal, whether or not they are embraced in the allegations of misconduct or at all. In fact there is no requirement on the Commission to make a finding that the appellant had engaged or had not engaged in the misconduct as charged at all before exercising this protective function which is given to it under Part 7 of the Act. 3. From all of those propositions I draw on the decision of the Commission in Court Session in Secretary, Department of Justice v Schoeman (2014) NSWIR 40. I frankly doubt, with respect, the correctness of some of those propositions as they are stated when they are considered in the context of the Act as a whole. Indeed, I have the view that if they are actually followed in their terms, they render the appeal process under the Act unfair and ultimately unworkable. However, that is the law I am bound to follow at this time at least. 4. I now turn to the matter itself. I was invited, very correctly, by counsel for the appellant to consider this matter in its context and I turn to that context first. Context in which conduct occurred 1. Corrective Service officers work within a strict rank structure. They work in surroundings which are very different to those in the environments in which almost all other public sector employees work and which are entirely different to those that apply on the public street. They work in circumstances which can be, and sometimes are as a matter of fact, very dangerous. Decisions have to be made including decisions about physically controlling inmates who may be violent, about defending inmates from attacks by other inmates, defending colleagues and indeed themselves against such attacks. Situations within the Corrective Service environment, it must not be forgotten, are unpredictable and can be unpredictably violent and unsafe. It is necessary that proper regard to safety precautions be taken in that environment; not most of the time but all of the time. 2. It is also absolutely necessary, in those circumstances to which I have just adverted, that orders that are given in the line chain of command are obeyed. It is not open to officers in the chain of command to refuse to carry out a lawful order. The statement of duty says so. It is not open to an officer in the chain of command to refuse to carry out a lawful order even if, for example, that officer believes that the officer senior to him, giving that order, is acting contrary to policy or contrary to the way the recipient of the order believes the best manner of doing the work may be. There is an obligation to obey the order. 3. Mr Bindley is a very senior, very experienced Corrective Service officer. That includes, on his own very detailed account in his evidence, involvement in situations of physical danger and the threat of physical danger to him and to colleagues. It is part of his post duties and his duty statement that he obey lawful instructions. I proceed on the basis that Mr Bindley knows and accepts the rank structure within which he works and knows and accepts his responsibility to obey lawful orders. 4. Over and above the context to which I have just adverted, this particular case has to be understood in the context that the particular inmates, the management of whom gave rise to the central events which ultimately led to this matter coming before this Commission, were specifically inmates classified as A2. That is to say they were men who had been assessed as having the capacity and propensity to carry out acts of violence of some sort or another, including acts of violence to Corrective Service officers. At all times, in addressing what has happened in this matter, that must not be lost sight of and I do not lose sight of it. I have only been inside gaols as a visitor but I sufficiently understand that that is the context of this matter. Facts 1. I now turn to the facts of this matter. Mr Bindley arrives at work at Ebenezer Wing of the John Moroney Correctional Centre after three working days of absence. He is the senior correctional officer in charge of the shift for that day in E unit. He finds there are eight or nine segregated prisoners in the unit when there were two when he was last on duty, more than three working days before. Prisoners are segregated for a number of reasons, but one principal reason is that they are assessed as being violent. I accept that Mr Bindley did not know on what basis the eight or nine - nothing turns on the number - segregated prisoners were determined to be prisoners who ought be segregated. He simply did not know that. 2. In that context, he seeks further resources from the manager of security, Mr Taylor. The answer he gets when he makes that request on the telephone is that the segregation unit is to be locked down. Now locked down is a term of art in the prison system. It means, certainly as it applies to John Moroney Correctional Centre, that inmates remain in their cells, they are not let out for exercise, they are fed and medicated and they can be transferred. So the manager of security, Mr Taylor, ordered a lock down of the segregation unit in E wing. That was a result that Mr Bindley sought and welcomed. 3. I turn to Mr Bindley's interview with Mr Corcoran, an interview conducted at his request, very properly, after the investigation had been carried out. So that it is clear to what I am referring, it appears on p 77 of folder 1, at p 66 of the interview as a whole. In that interview Mr Bindley is talking to Mr Corcoran about the fact that - and we will come to these details in a moment more fully - it was sought of him that segregated inmates within the locked down part of his wing be transferred during the time of the lock down. What Mr Bindley says in his own words about that matter is this: "I was denied the opportunity to have what Mr Taylor determined to be a lock down. That is pivotal, that is very pivotal. My award conditions were breached by Mr Taylor under the Safe Staffing Rules Award, that is in black and white under the Industrial Relations, they made that in their statements." 1. I was invited by counsel for the appellant to speculate, as regards Mr Bindley's conduct during the course of that morning, "What's in it for Mr Bindley to behave in the way that it's alleged that he did?" and there, it seems to me in what he said to Mr Corcoran about his motivations, "I was denied the opportunity to have what Mr Taylor determined to be a lock down, that is pivotal", seems to be the answer to that speculation. This case of course does not turn upon questions of motivation but I was invited to consider the matter and I did. 2. It is clear that Mr Bindley wished to make a point about manning levels and about safety. That concern was recognised by Mr Taylor in giving him, to use Mr Bindley's words, a lock down. Mr Bindley demonstrably did not want then to be deprived of that lock down by having moved, contrary to what he perceived as the appropriate rules that surrounded that lock down, certain inmates. 3. Now Mr Bindley was absolutely and entirely entitled, as the senior correctional officer in charge of that shift, to be concerned about safety. He was entirely entitled to make representations about that matter to his superiors. Indeed, it was his job to do so. That does not, of course, extend to him standing up officers who are entitled, within the rank structure, to give him directions and require to see them obeyed. Of course Mr Bindley says he did not do that and that is a question to be determined in this matter. Indeed it is a central question to be determined in this matter. I now turn to that question. 4. I now go to the circumstances where Mr Bindley was visited in his work station by officers who were senior to him who say, on their evidence, they gave him certain instructions and directions and say that he refused those. That alleged refusal became a core part of the allegations brought against Mr Bindley and the core reason for the punishment imposed upon him, which is challenged here in this appeal. 5. I accept that there were three visits to Mr Bindley at his workstation, relevantly. There was one by Mr Gurney alone, there was a second by Mr Gurney and Ms Corby and there was a third again involving Mr Gurney and Ms Corby. In my view the critical visit is the first visit in which Corby and Gurney come to the workstation together. There are five witnesses to that interaction. I have listened very carefully to the evidence of Mr Bryce and Mr Miller who were two of those five witnesses. I do not doubt they are doing their honest best to give honest evidence about what they saw and heard and anything I say about the evidence is not meant to suggest that I doubt or call into question their desire to fulfil their oaths or affirmations and give evidence honestly to the Commission. 6. About Mr Miller and Mr Bryce, much was said in submissions and I make this observation. It is easy when a matter comes to trial and in the hands of experienced counsel, and the real issues are refined and made clear, then to say "Such and such has now emerged as a critical issue and it wasn't properly dealt with by the investigator". Investigators are meant to act quickly and practically. I will have something to say about quickly later on, but it was not wrong for the investigator to take statements from Mr Bryce and Mr Miller rather than interviewing them on record. It was not wrong. It was, in my view, sufficiently clear during the investigation that what was said to and said by Mr Bindley in that critical conversation, that second conversation involving him, Corby and Gurney, was important. Mr Miller and Mr Bryce do give an account of the conversation, certainly as to its manner and tone, and they also each say, and this is a critical matter, that there was no refusal by Mr Bindley of any direction. With the benefit of hindsight, it would have been better to go back to Mr Bryce and Mr Miller and say "Well over and above the statement you have given, can you give us more detail about that conversation, its precise words?" It may have borne no fruit, it may, one does not know. But it would have meant that each witness to what now appears to be the critical conversation – and I accept that may not have been perfectly clear at the time the matter was being investigated, but it now appears as a critical conversation – had an ability to give the most complete account possible. 7. However, having said that, that does not affect, in my view, the matters of fact about which I am obliged to form a view here. That is because I have before me the evidence - the tested evidence in each case of Mr Bindley, Ms Corby and Mr Gurney. I also have the CCTV footage which is of limited help without sound but is of some assistance in divining what happened, how long it took and the positions of certain people in the room in which the footage discloses. 8. I listened very carefully to the evidence of all the witnesses in this matter and I have weighed it and, having done so, I am bound to say that I accept Ms Corby's version of that central conversation. I regard Ms Corby as a witness of truth. I prefer her account of the conversation to anybody else's and to state it clearly, to Mr Bindley's, for these reasons. 9. Firstly, her account is based on relatively contemporaneous material. I accept her account of the conversations as she recorded them in her report of 30 September 2015. In that regard I note that Mr Bindley, no doubt accidentally, conflated two conversations into one in giving his evidence about the conversations. I prefer Ms Corby's account on that first basis, that it is based on contemporaneous material. Secondly, there was an internal sense and coherence in the account that she gave which fitted in with what I saw in the footage and fitted in sensibly with the subsequent events. It fitted in with the length of the time the conversation took, which is known from the CCTV, and it fitted in with the way in which she then went about conducting herself and what occurred after that time. Thirdly, her account was largely confirmed by Mr Gurney. Fourthly, I accepted from Ms Corby's manner of giving evidence that she was both doing her best to tell the truth and recall matters accurately and that she had a reasonable recall of those matters. She answered questions that were put to her by counsel directly and openly and without, as it appeared to me, any attempt to colour her answers to suit anybody's case. 10. I am bound to observe that, in my observation, Mr Bindley's evidence was given in a matter which was at some times argumentative, at times involved him questioning the cross-examiner and at times gave the clear impression that he thought it appropriate to argue his case from the witness box. That does not mean that I do not accept Mr Bindley's evidence at all or anything of that sort. It does not mean that I formed any adverse view about his credit per se but it does mean that, where Mr Bindley's evidence conflicted with Ms Corby's, I preferred Ms Corby's evidence. 11. I am conscious of the danger of forming views about witness evidence from perceptions of demeanour. My perception of the respective witnesses' demeanour and their manner of giving evidence is only a part of the reasons for the view to which I have come, about who gives the preferable evidence, but my observation of their overall demeanour in giving evidence is a part of the reason for the view that I have formed. 12. What that means, in practical terms, is this. I accept that Mr Bindley was directed by Ms Corby, who was an officer having the authority to so direct, to prepare certain segregated inmates for transfer and that he verbally refused to do that, to her face, and that that exchange happened more than once in that conversation. That is, Mr Bindley was told by Ms Corby that he was to get the inmates ready for transfer, which involved only him telling them they were being transferred and then giving them a plastic bag to pack their cell items and prepare the paperwork, and he told her he would not do that. Mr Bindley's own account is that, in stating that he did not refuse to do anything but he required the senior officers to tell him, before anything would happen, how the transfer was to be effected and then, later, that he required to see certain paperwork, particularly the segregation discharge orders or revocation orders. 13. The fact remains that even on Mr Bindley's account alone, he did not indicate, in the course of a seven minute plus conversation in which he was asked to do certain things, that he would do what he was asked to do, that is, prepare the inmates for transfer. It is abundantly clear, from his own evidence, that he did not agree to do this and indeed, as I say, I accept the evidence that he expressly refused to do that. 14. Now it is clear that Mr Bindley based that refusal on an asserted belief that it was the executive officers' responsibility, not his nor his staff, to do all things necessary to have prisoners transferred. He points in that regard to a "local policy" which is nowhere to be found, although I note that Messrs Miller and Bryce also suggest that there was such a policy. However, I cannot accept that where there is no evidence whatsoever, whether it is a policy document or the minutes of a meeting between management and a POVB or in a letter or an email or anywhere else at all, let alone within the knowledge of the management of security and executive officers, of such a policy, that in fact that policy did exist in agreed or established form. It may well have been something members of the POVB thought should exist or wished to cause to exist, but that is not a policy. 15. What has happened here is, it is clear from the interview with Mr Corcoran that Mr Bindley participated in that I went to before in this decision, that Mr Bindley had determined that he and his staff would not assist the executive in the transfer of prisoners during lock down. It is sufficiently clear to me that he took that view because he believed that being asked to do that work was contrary to his industrial rights, to use his words. I recall and I note Mr Bindley's evidence, when it was asked how it was that he went backwards and forwards in the conversation with Corby and Gurney over some seven minutes about this, he said, and I noted this: "I wanted to give them an opportunity to come up with details of the means by which the transfer would be effected." 1. And here one sees the difficulty. It was not open to Mr Bindley to decide that he would 'give an opportunity' to senior officers to come up with something accommodating his idea of a local policy or how the matter should be conducted at all. Because that is in fact what we are dealing with here, this question of the policy, not a claim about safety; that comes later. It was not open to Mr Bindley to put officers, who had the authority to give him a lawful direction, to the business of coming up with the answers he sought about how a transfer was to effected. It is not for a senior correctional officer in those circumstances to decline to carry out an instruction; because what is clear is that he neither went and prepared the inmates for transfer at that time, nor agreed to prepare the inmates for transfer during the debate with Corby and Gurney. Of course I am aware that after Corby and Gurney left, Mr Bindley and one of his staff members did advise the inmates of the transfer and give them the necessary bags to carry their cell items. But it was not open to him to decline to carry out an instruction, so as to give these officers an opportunity to come up with something to suit his requirements. His obligation was to follow his instructions, whether he agreed with them or not. 2. That Mr Bindley may have felt that he was industrially justified in refusing, because of a policy he believed to be in place, is not an answer. He was given a lawful direction that he could safely carry out. As Mr Gurney said in his evidence "You haven't even got to open a cell door to do this" which is correct. Mr Bindley declined to do it. 3. Mr Bindley is a senior and experienced officer, as I have said. He has at times had difficulties, he gave evidence, with management. He believed, he gave evidence, that he was being put upon or targeted by management. It is clear to me that he had determined that he would hold everyone, including those above him whose judgment in some cases he demonstrably doubted, to effectively strict rule. To work to the policy that he perceived to be the one surrounding transfers during lock down. The fact that I might understand his motivation does not lead me to say that he can be excused in refusing a direction. 4. The second important factual matter that Mr Bindley's views about this whole process led him to physically obstruct officers superior to him in going about their duties. I say again, I have not forgotten that these duties involved the movement, which means the release from their cells under greater or lesser degrees of control, prisoners who were assessed as prisoners requiring maximum security. And I have not forgotten that there had been quite recently, at the time that this all occurred in August 2015, an incident involving, at that correctional centre, an attempted act of violence on a correctional services officer. I perfectly understand that those things were in Mr Bindley's mind on that day. 5. On the evidence, including the CCTV evidence, it is abundantly clear that Mr Bindley physically blocked officers going about their duty of transferring those prisoners. Indeed, he blocked officers twice. The first time, when the officers were coming out of the corridor with the inmates and the second time, which I will return to, when he blocked Mr Gurney for a period of time going back into the corridor. It is the first of those only which is referred to in the allegation put to Mr Bindley. Although on the case law it is open to the Secretary to entirely reframe his case on appeal and argue it on bases that were never contemplated when the allegation was actually made, that is not what the Secretary has done here. It does not mean I am not to have regard to matters beyond those that are argued, I do point out, but that is not the way the Secretary has gone about conducting this case. 6. Mr Bindley obviously formed the view that what Corby and Gurney were doing when they went to move the prisoners was unsafe because, he said, he was not aware that the segregation orders had been revoked. On his evidence, once the segregation orders had been revoked, then Corby and Bindley could transfer the inmates un-handcuffed and escorted by one officer, which is of course what they were doing. I will return to this question of the segregation orders and their revocation because it is important. 7. Mr Bindley had a view that the conduct of Corby and Gurney was unsafe. He was entitled to make any representation or complaint about what was being done in that regard, although I note that he did not in fact do that afterwards, but what he was not entitled to do in those circumstances was physically block officers going about their duty. Yes, you might physically block a man from going into a burning building he did not know was burning; there are circumstances in which physical intervention against a superior officer would be the right thing to do, but this was not one of them. It is perfectly clear that Mr Bindley actively, physically intervened to stop Corby and Gurney moving the two inmates that they were escorting. 8. And further, it is clear that he continued to do that even after he had been directed not to do that. It is clear from Ms Corby's evidence and it is also clear from Mr Bindley's own evidence, what he said in his interview with Mr Corcoran and I quote from that. Mr Bindley gave this account to Mr Corcoran of that event at the door where he stopped the inmates coming through the door and anyone who was in the court and saw the footage will remember Mr Bindley holding up both hands at the door to indicate stopping and standing at the door with his arms on the doorframe and indeed, in his own evidence, Mr Bindley replicated those movements. This is what he told Mr Corcoran: "I said "We need the paperwork" and that's when he said "I'm giving you a direct order to open the door right" and then I stood in the door and I said "Sandy we just want the paperwork" and she said to me "The revocation is on OIMS" and I just said "Okay" and Joe Zelesniak said "Matt can we get the paperwork over later" and IAT were there so there was no threat at that time to anyone's safety or security because the additional resources were all of a sudden provided that we asked for in the first place and they were moved to the reception room". For the record I note that that is at page 122 of folder 1. 1. So here we have not just Mr Bindley taking it upon himself to block the passage of these officers, but, a direct order having been given to him, Mr Bindley, in the face of that direct order, moving to stand in the doorway. It was not open to him to do that. 2. We also see this, I observe, that the absolute requirement for the paperwork that Mr Bindley had insisted on and had said was the dividing line between safety and unsafety, fell away once the additional staff appeared that Mr Bindley had sought in the first place. However, the critical point is not that. The critical point is this. That Mr Bindley, in the face of a direct order to do otherwise, obstructed a senior officer going about his lawful duty. 3. Mr Bindley gave evidence here in the Commission that he had blocked the movement of the inmates so as to "prevent an unsafe work practice continuing". As I say, I accept that as the CSO he has obligations towards himself and other employees to maintain a safe workplace. That did not extend to him imposing his judgment on a matter that had been debated at length and in which officers senior to him had determined on the course of action. 4. The second circumstance in which Mr Bindley obstructed an officer was his preventing Gurney going back into the corridor by blocking access to the SWAT unit and then by holding the door closed with his hand on the door handle. That was not emphasised in the respondent's case. I have regard to it, I am obliged to have regard to it, it is part of the evidence of Mr Bindley's conduct that may bear on my judgment on the appeal. I form the view it was not open to him to do that either. I observed that by that time he had already been told that the segregation revocation orders had been made and were on OIMS. The very concern he had raised, that he did not know if the segregation orders had been revoked or not, had been resolved. There was no justification, on his own account of matters, for him impeding Gurney going about his duty. 5. But even if one confines oneself only to the first piece of obstruction to which I have referred in detail, it is sufficiently clearly established on the evidence, certainly to the level of satisfaction required by s 140 of the Evidence Act 1995 or the level of satisfaction that can be referred to as the Briginshaw level of satisfaction concerning what are serious allegations, that Mr Bindley did refuse a direction and did physically obstruct officers going about their duty. Elements of misconduct alleged 1. As I have said, the jurisdiction which the Commission exercises in matters of this kind is protective. Protective of the public sector, protective of public sector employees and indeed of the public. It cannot be, in my view, that in a jurisdiction which is protective of the public sector and its employees, an employee in a uniform structure can decline directions and can physically obstruct officers going about their duty because that employee disagrees with the course they are taking. As a matter of law, I am not at all required to have regard to the allegations actually put to Mr Bindley and I am certainly not required to make any findings in express terms about whether those allegations are made out in their terms. 2. Nevertheless, as it happens, the respondent has essentially presented its case in support of the maintenance of disciplinary sanction that was imposed by reference to five of those six allegations. Because in my own view, notwithstanding what the law is, I regard that it ought be part of the process of an appeal of this kind that the allegations be examined, I now, even if I am wrong about holding that to be so, turn to the allegations that were actually put, accepting as I say that the authorities say that the determination of the appeal does not turn on whether the allegations are made out at all. 3. I refer to the actual findings in fact made by Mr Grant in his letter of 11 November 2016. There are six findings there, and I will go through them one by one because I regard that as the appropriate course of dealing with a matter of this kind, even as I say if I am wrong in taking that course. 4. The first finding that the first allegation is made out is correct. Mr Grant was correct in finding that allegation made out. 5. The second finding, noting that the finding differs from the allegation that was put, the finding itself is correctly made. 6. The third finding is not made out, it is not correctly made. It suffers from rolling too many things into one finding but what is clear, and I wish to state, is that Mr Bindley, on Ms Corby's evidence, which I accept, as well as his own, did not assert that he would not feed or provide medical treatment to inmates. The allegation rolls other things in with that allegation in a confusing way but Mr Bindley did not do what the allegation centrally puts against him. Allegation three cannot be sustained and the finding was wrongly made. 7. The fourth allegation was effectively withdrawn during the proceedings and I would not, in any event, have formed the view that it was made out on the evidence. 8. The fifth allegation, this is the telephone hanging up allegation, is made out on the facts. In my view, in the very particular circumstances of that particular interaction which involved a dealing between two men of very significant experience, of mature age, who knew each other and in circumstances where discourtesy occurred on both sides of that conversation, I would be very slow to find Mr Bindley culpable of misconduct in relation to that conversation. The respondent very correctly put that, as a general principle, it is not for a subordinate to hang up on a senior officer who is trying to resolve an important matter, which this transfer was, which touches on safety and security. As a principle that is entirely correct. This particular phone call, in the particular circumstance of that day, miscarried through fault on both sides and nothing more need be said about it than that in my view. 9. The sixth finding, which is a direct finding about the sixth allegation, is made out and is a serious matter. It was, as I say, not open to Mr Bindley to do that, to hinder or indeed obstruct, physically block an officer in carrying out his duty. 10. I accept Mr Bindley's evidence that the Commissioner had very recently at that time issued instructions requiring strict adherence to paperwork. I was not shown that instruction but I accept that it was done. That paperwork is not to be taken lightly because it determines the legal status of, here, inmates and here, maximum security inmates and it makes a difference as to how they are to be managed. I accept that but once Mr Bindley had been told by a superior officer that the relevant segregation orders had been revoked, which he was told by Ms Corby, that was the end of the matter. There was no basis for him, after that, to seek to obstruct the process further by demanding to see the papers themselves. That was never, I am satisfied, part of his remit. It was never necessary that he physically sight the revocation orders as pieces of paper, which is what he purported to seek. He was entitled to enquire as to whether they had been revoked or not. He was told that they were by an officer who had the ability to tell him that, that was Ms Corby. He had no ability to continue to insist to see the papers after that. 11. Those findings of fact, of course, do not determine necessarily the outcome of the appeal. I now turn to the question of the appeal itself. Disposition of appeal 1. It is apparent from the words of subs 100C(2) of the Act that an appeal before the Commission is an appeal de novo. That is to say, the Commission is to hear and determine the matter afresh on the materials before it, not simply review the decision of the initial decision-maker. The authority for that is Calman v Commissioner for Police (1999) 167 ALR 91. 2. The Commission may, in relation to a disciplinary appeal, allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. The Commission is therefore not constrained merely to accept or reject the initial decision, it can impose any decision it thinks fit, including a harsher penalty than that which the initial decision-maker imposed. The Act does not say so in terms but the authorities lead me to conclude that the Commission's task is to determine whether the decision which was imposed is the correct or preferable decision in the circumstances and as to that, I have to say this. I am troubled by the fact that this matter took 15 months to resolve. That cannot be good practice. It must be possible to determine matters more quickly than that. I do not accept that the intervention of the PSA to cause the decision-maker to be changed was a matter of any substance in that delay. Indeed on one view it ought not have needed to be done. It had already dragged on unconscionably even before then and continued to drag on for too long after that time. 3. That delay had an effect on Mr Bindley beyond the effect of the ultimate punishment. In that regard I accept Mr Bindley's evidence on this. He lost approximately $30,000 gross in lost shift penalties and overtime and there was a knock-on effect from that loss on his superannuation and, depending on what it has taken potentially on his long service leave and that is quite apart from the other intangible factors that go with a lengthy, lengthy suspension as this was. The loss of self-respect which comes from being deprived of your ability to do your job. The loss of the camaraderie of longstanding workmates. The loss of feeling useful in society that comes with not being able to do the job you trained to do and you expect to do. All those things are very real and I say again, this matter went on for too long and those impacts on Mr Bindley therefore went on for too long. 4. The task of resolving that however is more difficult because ultimately I am forced to the view that the conduct that was committed, that is a refusal to do something Mr Bindley was lawfully directed to do and a physical obstruction of more senior colleagues carrying out their duties without any justification for doing so, was sufficiently serious that a one-step reduction in rank and the consequential transfer is the correct and preferable decision. It is appropriate to effect a reduction in rank from senior correctional officer, which is a leadership position, in these circumstances where there was a failure of that leadership. It would not be the correct and preferable decision in a jurisdiction which is protective of the public service and public servants, including other correctional services officers and the good order and running of correctional establishments, to set that decision aside and replace it with a decision that Mr Bindley not be reduced in rank, despite the fact, as I say, that the delay has effected a further punishment on Mr Bindley. 5. Indeed, I am bound to make this observation, it is a reduction in a single step in rank only that has ultimately been effected. In my view, the conduct was serious and on one view it warranted a more serious form of disciplinary than that which was ultimately taken. I do not however propose to move to replacing the original decision with one effecting a more serious punishment, in good part because of the additional adverse effect that the delay in determining this matter has already effected on Mr Bindley. 6. Regard was had to Mr Bindley's length of service; it says in the documents, and to his record, in assessing whether the disciplinary decision was in fact the correct one. I have also had regard to that matter in making that assessment and ultimately I am directed to the view that the disciplinary decision that was taken was, on balance of all matters, the correct and preferable decision. 7. I make this final observation. Part of Mr Bindley's case was that his duties as the president of the POVB branch had led to fractured relationships with more senior officers including Mr Taylor, although perhaps oddly he also advanced, in the context of the phone call allegation, that he and Taylor had a good, open working relationship that went beyond being just work colleagues. In any event, Mr Bindley's case as it was argued here did not go so high as to assert that he was subject to this disciplinary action because he was a union official. Nevertheless I make this observation. 8. The fulfilment of the objects of the Act require, in my view, the maintenance of an effective system of workplace delegates in workplaces in this state. It happens, from time to time in my experience, that union delegates are targeted. I have had very particular regard to the evidence in this matter to see whether it might touch on that happening at all. I cannot see that this disciplinary action arose in any way as a targeting of Mr Bindley because of his union activities. I say again, that was not the case that was run but in my view it is a matter the Commission ought have regard to at large, as I am in this matter. I have had regard to it and I do not see that this action was in any way a targeting or reaction to Mr Bindley because of his union activities. 9. On the basis of all that I have said, the order that I therefore make in this matter is that the appeal brought by Mr Matthew Bindley against the disciplinary decision imposed upon him on 11 November 2016 is disallowed. 10. I will cause the transcript of my decision, as I say, to be furnished to the parties as quickly as it is made available. 11. I now add this further observation. Having delivered the above judgment ex tempore, I was asked from the bar table by solicitors for the appellant, counsel having been excused attendance, if the Commission proposed to limit the reduction in rank to a two-year period. I was told that that had been advanced by the respondent as part of earlier conciliation discussions. 12. Leaving aside whether I ought have been told that, which clearly I should not, at the point the submission was made the Commission was already functus officio. I make the point, however, that such a submission, even as one very much in the alternative, was at no time advanced during the proceedings. PETER NEWALL Commissioner ********** 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: 25 May 2017