Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2)

[2018] NSWCA 124

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124

Hearing dates:

28 February 2018

Date of orders:

08 June 2018

Decision date:

08 June 2018

Before:

McColl JA at [1];
Macfarlan JA at [189];
Emmett AJA at [190]

Decision:

(1)   Grant leave to appeal;
(2)   Direct that the notice of appeal filed on 20 December 2017 be treated as validly filed on that date;
(3)   Allow the appeal;
(4)   Set aside the judgment and orders (2) to (5) of the Court below made on 30 November 2017;
(5)   In lieu thereof, dismiss the amended summons with costs;
(6)   Respondent to pay the appellant’s costs of the proceedings in this Court.

Catchwords:

ADMINISTRATIVE LAW – judicial review – jurisdictional error – unfair dismissal claim – review of orders of Industrial Relations Commission – order reinstating correctional officer to employment in correctional centres – whether Commissioner failed to take mandatory relevant considerations into account – whether primary judge erred in finding Commissioner’s decision vitiated by jurisdictional error

 

ADMINISTRATIVE LAW – judicial review – jurisdictional error – unfair dismissal claim – Commissioner’s reasons – role of court on judicial review – whether Commissioner’s reasons demonstrated mandatory relevant considerations taken into account
ADMINISTRATIVE LAW – judicial review – jurisdictional error – unfair dismissal claim – whether employer’s mandatory relevant considerations case advanced before Industrial Relations Commissioner

  ADMINISTRATIVE LAW – judicial review – jurisdictional error – unfair dismissal claim – where Full Bench refused employer’s application for leave to appeal – where primary judge’s finding affected by jurisdictional error – whether necessary to identify jurisdictional error in Full Bench decision before setting aside Commissioner’s reasons

Legislation Cited:

Crimes (Sentencing Procedure Act) 1999 (NSW)
Crimes (Administration of Sentences) Regulation 2014 (NSW)
Government Sector Employment Act 2013 (NSW)
Industrial Relations Act 1996 (NSW)
Industrial Relations Amendment (Industrial Court) Act 2016 (NSW)
Interpretation Act 1987 (NSW)
Judicial Officers Act 1986 (NSW)
Supreme Court Act 1970 (NSW)

Cases Cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Azriel v NSW Land & Housing Corp [2006] NSWCA 372
Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24
Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47
Cochran v Sutton [2014] NSWCA 185
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Commissioner of Police v Eaton (2013) 252 CLR 1; [2013] HCA 2
Commissioner of Taxation v Pham (2013) 134 ALD 534; [2013] FCA 579
Commonwealth v Bank of NSW (1949) 79 CLR 497; [1950] AC 235
Corrective Services NSW v Danwer [2013] NSWIRComm 61
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Department of Health v Kaplan [2010] NSWIRComm 65
Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416
Foster v Minister for Customs and Justice (2000) 200 CLR 442; [2000] HCA 38
Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007
Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1
Ku-ring-gai Council v Garry West as delegate of the Acting Director-General, Office of Local Government (2017) 95 NSWLR 1; [2017] NSWCA 54
Little v Commissioner of Police (No 2) (2002) 112 IR 212
Liverpool City Council v Moorebank Recyclers Pty Ltd [2018] NSWCA 7
Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505; [2004] FCAFC 256
Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112; (2014) 242 IR 318
R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177; [1965] HCA 27
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; [1953] HCA 22
Rajah Tasadduq Rasul Khan v Manik Chand (1902) LR 30 Ind App 35
Re Minister for Immigration and First Respondent Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165
Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7
Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48
Santos Ltd v Saunders (1988) 49 SASR 556
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363
Singapore Airlines Cargo Pte Ltd v Principle International Pty Ltd [2017] NSWCA 216; (2017) 323 FLR 447
Smith v Minister for Immigration & Ethnic Affairs & Commonwealth (1984) 53 ALR 551
Soulemezis v Dudley Holdings (1987) 10 NSWLR 247
Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620
Swift v SAS Trustee Corporation [2010] NSWCA 182
The Queen v Marks; ex parte Australian Building Construction Employees Builders’ Labourers’ Federation (1981) 147 CLR 471; [1981] HCA 33
Toms v Harbour City Ferries Pty Ltd (2015) 229 FCR 537; [2015] FCAFC 35
Wattie v Industrial Relations Secretary [2018] NSWCA 5
Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (CSNSW) [2016] NSWIRComm 1036
Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598

Texts Cited:

Corrective Services NSW Guide to Conduct and Ethics
Corrective Services NSW Guide to Conduct and Ethics, 2010 Edition
Corrective Services NSW Operations Procedures Manual, Using Force on Inmates Policy
Crown Employees (Correctional Officers, Department of Attorney General and Justice – Corrective Services) Award 2012
Crown Employees (Correctional Officers, Department of Attorney General and Justice – Corrective Services) Award 2012
Government Sector Employment (General) Rules 2014 (NSW)

Category:

Principal judgment

Parties:

Jason Wattie (Appellant)
Industrial Relations Secretary on behalf of the Department of Justice (Respondent)

Representation:

Counsel:
A Moses SC and M Gibian (Appellant)
P Menzies QC and A Douglas-Baker (Respondent)

  Solicitors:
McNally Jones Staff Lawyers (Appellant)
Crown Solicitor’s Office (Respondent)

File Number(s):

2017/384914

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2017] NSWSC 1662

Date of Decision:

30 November 2017

Before:

Adamson J

File Number(s):

2017/148155

HEADNOTE

[This headnote is not to be read as part of the Judgment]

The appellant, Jason Wattie, a Senior Correctional Officer with Corrective Services NSW (CSNSW), was dismissed from his employment on 13 May 2016 as a result of assaults he committed against three prison inmates. Prior to his dismissal Mr Wattie had pleaded guilty to two charges of common assault (s 61, Crimes Act 1990 (NSW)) and one charge of assault occasioning bodily harm (s 59, Crimes Act) in relation to the three incidents. Ultimately no convictions were recorded in respect of any of the charges, but Mr Wattie was required to enter good behaviour bonds.

Mr Wattie brought proceedings in the Industrial Relations Commission on 3 June 2016 against his nominal employer, the Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (Secretary), seeking an order pursuant to s 84 of the Industrial Relations Act 1996 (NSW) (IR Act) reinstating him to his employment on the basis that his dismissal, although neither unreasonable or unjust, was harsh. He was successful in that application before Commissioner Murphy, who ordered that he be reinstated to the position he held with CSNSW immediately before his dismissal. Given that his dismissal was based on what the Commissioner described as “inexcusable misconduct”, he declined to order that Mr Wattie receive any back pay for the period from the time of his dismissal until the date the reinstatement order took effect.

Section 88 of the IR Act provided that in considering an unfair dismissal claim, the Commission may take into account a number of specified matters and “such other matters as the Commission considers relevant”.

The Secretary was unsuccessful on 28 February 2017 in proceedings taken before the Full Bench of the IRC seeking leave to appeal against the reinstatement order.

By summons seeking judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW), the Secretary challenged the Commissioner’s decision to reinstate Mr Wattie’s employment and, too, the Full Bench’s decision refusing to grant leave to appeal.

The primary judge held that the Commissioner’s decision was vitiated by jurisdictional error in that he had failed to take into account mandatory relevant considerations (described by her Honour as “the regulatory context”) and “reached a conclusion which was erroneous because it lacked an essential integer: an assessment of the seriousness of [Mr Wattie’s] misconduct which required consideration of the regulatory context.” The mandatory relevant considerations were identified as cl 131 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (CASR) and section 13.7 of the CSNSW Operations Procedure Manual (OPM), dealing with Using Force on Inmates. Her Honour also held that the Commissioner’s jurisdictional error made out jurisdictional error in the Full Bench’s refusal to grant leave to appeal.

Mr Wattie sought leave to appeal, and to appeal from that decision.

The principal issues on appeal were whether the primary judge erred in:

(i) holding that cl 131 of CASR and section 13.7 of the OPM constituted mandatory relevant considerations;

(ii)   finding that the Commissioner failed to consider that regulatory context having regard to the conduct of the Secretary’s case before the Commissioner;

(iii)   setting aside the decision of the Full Bench of the Commission without separately finding jurisdictional error in its determination of the leave application.

Held, per curium, granting leave to appeal and allowing the appeal with costs:

As to issue (i), per McColl JA and Emmett AJA (Macfarlan JA agreeing)

(1) Where a statute confers an unconfined discretion on a decision-maker, the question whether the decision-maker is required to take specific considerations into account is determined by implication from the subject matter, scope and purpose of the Act: [134] – [135], [223].

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied.

(2) The primary judge did not err in holding that cl 131 of the CASR and section 13.7 of the OPM were mandatory relevant considerations: [146] – [148], [226].

As to issue (ii), per McColl JA and Emmett AJA (Macfarlan JA agreeing)

(1) Administrative decisions should not be studied “too finely or precisely with an eye keenly attuned to the perception of error”; it has to be apparent that there has been “an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration”; it is also not necessary that a decision-maker mention every fact or argument relied on by a losing party or expose every step in the chain of reasoning that leads to the conclusion: [153] – [154]; [227].

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6; Soulemezis v Dudley Holdings (1987) 10 NSWLR 247 Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 applied.

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30; Ku-ring-gai Council v Garry West as delegate of the Acting Director-General, Office of Local Government (2017) 95 NSWLR 1; [2017] NSWCA 54 referred to.

(2) It was apparent from the Commissioner’s reasons read fairly and as a whole that he had considered the significance of cl 131 of the CASR and the Using Force against Inmates policy: [160] – [167], [228] – [230].

Per Emmett AJA (Macfarlan JA agreeing)

(3) In circumstances where the relevant material that is said to constitute “the regulatory context” was, at best, mentioned in passing before the Commissioner, it cannot be said that he fell into jurisdictional error by failure to refer in terms expressly to that context: [231].

As to issue (iii), per McColl JA (Macfarlan JA agreeing)

(1) Once the primary judge found the Commissioner’s reasons were affected by jurisdictional error, it had to be quashed pursuant to the Court’s power pursuant to s 69 of the Supreme Court Act to grant relief in the nature of certiorari quashing that decision. Once the Commissioner’s decision was void ab initio, the Full Bench decision had to suffer the same fate: [185].

Kirk v Industrial Relations Court of NSW (2010) 239 CLR 531; [2010] HCA 1 applied.

**********

Judgment

1. McCOLL JA: Jason Wattie is a former Senior Correctional Officer with Corrective Services NSW (CSNSW) and, as such, is also a public sector employee. On 13 May 2016 he was dismissed from his employment as a result of three assaults he committed against three prison inmates on 13 September 2014, 19 December 2014 and 29 December 2014 respectively. Prior to his dismissal Mr Wattie had pleaded guilty to two charges of common assault (s 61, Crimes Act 1990 (NSW)) and one charge of assault occasioning bodily harm (s 59, Crimes Act) in relation to the three incidents. Ultimately no convictions were recorded on any of the three charges, but Mr Wattie was required to enter good behaviour bonds under s 10(1)(b) (common assault charges) and s 9 (assault occasioning bodily harm charge) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

2. Mr Wattie brought proceedings in the Industrial Relations Commission (IRC) on 3 June 2016 against the respondent, his nominal employer, the Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (Secretary), seeking an order pursuant to s 84 of the Industrial Relations Act 1996 (NSW) (IR Act) reinstating him to his employment (reinstatement order) on the basis that his dismissal, although neither unreasonable or unjust, was harsh. He was successful in that application. Commissioner Murphy ordered that he be reinstated to the position as Senior Correctional Officer he held with CSNSW immediately before his dismissal, but, given that his dismissal was based on inexcusable misconduct, declined to order that he receive any back pay for the period from the time of his dismissal until the date the reinstatement order took effect.1

3. The Secretary was unsuccessful on 28 February 2017 in proceedings taken before the Full Bench of the IRC to seek leave to appeal against the reinstatement order. [1]

   1. Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (CSNSW) [2016] NSWIRComm 1036 (Commissioner’s decision).

4. By summons seeking judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW), the Secretary sought to challenge the Commissioner’s decision to reinstate Mr Wattie’s employment and, too, the Full Bench’s decision refusing to grant leave to appeal. By reason of s 179 of the IR Act, the Supreme Court’s jurisdiction to grant such relief was limited to cases where jurisdictional error in the IRC was demonstrated. [2]

   2. Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 (Full Bench decision).

5. On and from 8 December 2016, by reasons of amendments to s 48 of the Supreme Court Act 1970 (NSW) effected by Sch 2.34[2] to the Industrial Relations Amendment (Industrial Court) Act 2016 (NSW), which deleted s 48(1)(a)(ii) of the Supreme Court Act, the IRC ceased being a “specified tribunal” in relation to proceedings which were assigned to the Court of Appeal. Accordingly, the judicial review summons was assigned to the Common Law Division.

6. On 30 November 2017, Adamson J held that the Commissioner’s decision was vitiated by jurisdictional error in that he had ignored mandatory relevant material (described by her Honour as “the regulatory context”) and “reached a conclusion which was erroneous because it lacked an essential integer: an assessment of the seriousness of [Mr Wattie’s] misconduct which required consideration of the regulatory context.”[3] Her Honour also held that the Commissioner’s error made out jurisdictional error in the Full Bench’s refusal to grant Mr Wattie leave to appeal. [4]

   3. Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 at [55] (Kirk).

   4. Industrial Relations Secretary v Wattie [2017] NSWSC 1662; (2017) 271 IR 458 at [69].

7. Accordingly, her Honour set aside the decisions of both the Commissioner and the Full Bench and remitted Mr Wattie’s unfair dismissal application to the IRC to be determined according to law. [5]

   5. Ibid at [70].

8. By summons filed on 20 December 2017, and subsequently amended, Mr Wattie sought leave to appeal, and to appeal from the primary judge’s decision. By notice of motion filed the same day, he sought a stay of the decision and orders made by her Honour until the determination of his appeal or further order of the Court. That stay was granted. [6]

   6. Ibid at [73].

9. The respondent, the Secretary, did not oppose a grant of leave to appeal.

10. For the reasons that follow, I am of the view that the primary judge erred in a manner occasioning injustice to Mr Wattie. [7] I would grant leave to appeal and allow the appeal.

Legislative framework

7. Wattie v Industrial Relations Secretary [2018] NSWCA 5.

Industrial Relations Act

11. Part 6 of Ch 2 of the IR Act deals with unfair dismissals.

12. Pursuant to s 84 if an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under IR Act, Pt 6. The Commission must endeavour, by all means it considers proper and necessary, to settle the applicant’s claim by conciliation: s 86. If conciliation is unsuccessful, the Commission is to determine the claim by making an order under s 89, dismissing the application or making any other order it is authorised to make under the IR Act: s 87(1).

13. Section 88 of the IR Act provides:

88 Matters to be considered in determining a claim

In determining the applicant’s claim, the Commission may, if appropriate, take into account:

(a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and

(b) if any such reason was given—its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and

(c) whether a warning of unsatisfactory performance was given before the dismissal, and

(d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and

(e) whether or not the applicant requested reinstatement or re-employment with the employer, and

(f) such other matters as the Commission considers relevant. [Emphasis added.]

14. Section 89 (Orders for reinstatement, re-employment, remuneration, compensation) relevantly provides:

(1) Reinstatement

The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed.

…

(3) Remuneration

If the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order.

15. Chapter 4 of the IR Act deals with the Commission. Although the Secretary did not rely upon it, I note that s 146(2) requires the Commission to take into account the public interest in the exercise of its functions and, for that purpose, to have regard to the objects of the IR Act. Those objects include providing “a framework for the conduct of industrial relations that is fair and just” and for “the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality.”[8]

    8. Singapore Airlines Cargo Pte Ltd v Principle International Pty Ltd [2017] NSWCA 216; (2017) 323 FLR 447 at [5] per Beazley P (Payne JA agreeing).

16. Part 5 of Ch 4 deals with the “Procedure and powers of [the] Commission”. Pursuant to s 162(2)(a), which appears in that Part, the Commission is to “act as quickly as is practicable.” In Cochran v Sutton the Court of Appeal held that the Commission “it is not aptly described as a court and is not limited to traditional judicial functions.”[9] For example, pursuant to s 163(1)(a) and (c), the Commission is “not bound to act in a formal manner”, and “is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”.

    9. IR Act, s 3(a) and (g).

The “regulatory context”

17. The primary judge set out what her Honour described in the “regulatory context” part of her reasons as “Provisions and policies referable to correctional officers.”[10] As ultimately relied upon in this Court, the Secretary submitted that that part of the “regulatory context” the Commissioner failed to take into account was comprised of legislation, regulations and policy material as in force at the time of Mr Wattie’s dismissal. As will be seen, the Secretary relied upon matters the primary judge did not include in her Honour’s catalogue of the “regulatory context”. In addition, her Honour did not ultimately conclude all the provisions and policies to which she referred to as “regulatory context” were mandatory relevant considerations.

    10. [2014] NSWCA 185 at [8] per Basten JA (Bathurst CJ and Ward JA agreeing).

18. The Secretary first referred to s 69 of the Government Sector Employment Act2013 (NSW) (GSEA) which dealt with misconduct in the public service and by other prescribed government sector employees. That included, uncontroversially, correctional officers such as Mr Wattie. Relevantly, at the time Mr Wattie was convicted, and throughout the disciplinary process, “serious offence mean[t] an offence punishable by imprisonment for 12 months or more”: s 69(1). Each of the charges laid against Mr Wattie were so punishable. Pursuant to s 69(3), “government sector employment rules” (which the Public Service Commissioner could make pursuant to s 12) could deal with the conviction of employees of government sector agencies for a serious offence. If, in accordance with those rules, any such employee was found to have been convicted of a serious offence, the head of the agency was empowered, relevantly, to “terminate the employment of the employee (after giving the employee an opportunity to resign)”: s 69(4).

19. The Secretary relied upon rr 38 and 40 of the Government Sector Employment (General) Rules 2014 (NSW), presumably as complementary to s 69 of the GSEA, which dealt respectively with the “Initial stage for dealing with allegations of misconduct” and “Findings by agency head”. [11] The primary judge did not refer to either rule.

    11.    Primary judgment at [43] – [50].

20. Secondly, the Secretary relied upon cl 131 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (CASR) which at the time of Mr Wattie’s misconduct provided:

131 Use of force in dealing with inmates

(1) In dealing with an inmate, a correctional officer may use no more force than is reasonably necessary in the circumstances, and the infliction of injury on the inmate is to be avoided if at all possible.

(2) The nature and extent of the force that may be used in relation to an inmate are to be dictated by circumstances, but must not exceed the force that is necessary for control and protection, having due regard to the personal safety of correctional officers and others.

(3) If an inmate is satisfactorily restrained, the only force that may be used against the inmate is the force that is necessary to maintain that restraint.

(4) Subject to subclauses (1)–(3), a correctional officer may have recourse to force for the following purposes:

(a) to search, if necessary, an inmate or to seize a dangerous or harmful article,

(b) to prevent the escape of an inmate,

(c) to prevent an unlawful attempt to enter a correctional centre by force or to free an inmate,

(d) to defend himself or herself if attacked or threatened with attack, but only if the officer cannot otherwise protect himself or herself from harm,

(e) to protect other persons (including correctional officers, departmental officers, inmates and members of the public) from attack or harm, but only if there are no other immediate or apparent means available for their protection,

(f) to avoid an imminent attack on the correctional officer or some other person, but only if there is a reasonable apprehension of an imminent attack,

(g) to prevent an inmate from injuring himself or herself,

(h) to ensure compliance with a proper order, or maintenance of discipline, but only if an inmate is failing to co-operate with a lawful correctional centre requirement in a way that cannot otherwise be adequately controlled,

(i) to move inmates who decline or refuse to move from one location to another in accordance with a lawful order,

(j) to achieve the control of inmates acting defiantly,

(k) to avoid imminent violent or destructive behaviour by inmates,

(l) to restrain violence directed towards the correctional officer or other persons by an uncontrollable or disturbed inmate,

(m) to prevent or quell a riot or other disturbance,

(n) to deal with any other situation that has a degree of seriousness comparable to that of the situations referred to in paragraphs (a)–(m).

(5) Subclause (4) does not limit the operation of any law with respect to the force that may be used to effect an arrest.

21. Thirdly, the Secretary relied upon the Operations Procedures Manual for CSNSW (OPM), Section 13.7, “Using Force on Inmates”, paragraph 13.7.2 of which referred expressly to cl 131 of the CASR, and relevantly provided as follows:

13.7.2 POLICY

Clause 131 of the Crimes (Administration of Sentences) Regulation 2014 sets out the situations when you can use force. You must use alternative methods to resolve problematic behaviour whenever possible. A peaceful, injury-free solution is the first objective.

…

When it is used, the force you apply must be reasonable and appropriate to the circumstances. Once an inmate has been satisfactorily restrained, you must not apply additional force. If it’s no longer necessary to restrain the inmate, you must stop applying force and you must remove restraints.

Every time you use force, you must justify its use, as well as the type of force you applied and the duration you applied it …

The application of force must be video recorded. If the use of force is not video recorded, your report must explain why. Your explanation is unacceptable if it merely states that time did not allow a camera to be brought to the scene. Your explanation must detail the circumstances that precluded a camera being brought to the scene.

…

No matter how much or little force you used, you must report it in writing to the General Manager (GM). In addition, you must complete and submit an Incident/Witness Report Coversheet (see OPM 13 Annexures — Use of Force Tool Kit) … You must not show or discuss your report or your evidence with anyone else. The content of incident reports is governed by OPM 13.1 Serious Incident Reporting.

Note: Staff are not to review any video footage of the incident prior to submitting an incident or witness report (see OPM 13.9 Recording and Managing Video Evidence).

22. The bolded passages in the Policy were those upon which the Secretary relied in the further amended summons before the primary judge. In addition, the Secretary relied upon a summary in the Policy Overview section that “Force must only be used on inmates when all other options have been exhausted, or those options are no longer appropriate.”

23. Fourthly, the Secretary relied upon cl 24 of the Crown Employees (Correctional Officers, Department of Attorney General and Justice – Corrective Services) Award 2012 (Award) which governed Mr Wattie’s employment. It required officers to “perform their duties diligently, impartially and conscientiously to the best of their ability by complying with the CSNSW Code of Conduct in the performance of their duties” and to “be professional in their conduct with the public, other staff and inmates”.

24. Fifthly, the Secretary relied upon the Statement of Purpose and Values of Corrective Services New South Wales found in the Guide to Conduct of Ethics 2010 Edition (Guide), which was the CSNSW Code of Conduct referred to in the Award. [12] The primary judge referred to this Statement, identifying that part of it which was germane, as being the references to the “values” of “[s]afety, welfare and positive development of offenders”, and “[s]ecure and humane management of offenders”. Her Honour also referred to cl 2.8 of the Code of Conduct, “Professional Conduct Towards Offenders”, which said “[t]he treatment of offenders should encourage their self-respect and a sense of personal responsibility.” [13]

    12. Before the Commissioner, r 40 was described as setting out the process that was followed to give effect to s 69 of the GSEA.

    13.    Before the primary judge, the parties accepted that this was the relevant Code of Conduct referred to in the Award.

25. In this Court, the Secretary also sought to rely on references in the Guide to the obligations of “professionalism” and having “[r]egard for community expectations and public interest”. In addition, the Secretary relied upon that part of the Guide dealing with “Ethical Principles in Practice” and the expectation that employees act “conscientiously and with integrity”. Insofar as Mr Wattie was a manager, the Secretary relied upon the statement, again in the Guide, that “Managers should model the standard of professional and ethical conduct for their employees to adopt”, the dot-point summary that specified that managers should, “[m]odel desired values and behaviours,” and an extensive portion of the Guide dealing with Performance of Official duties.

26. The Secretary also sought to rely upon the following part of the Guide:

“1.3   STATEMENT OF ETHICAL AND PROFESSIONAL PRINCIPLES

The following is a set of principles by which CSNSW operates:

*   Place public interest and integrity above private interest;

*   Respect and protect the dignity and human rights of all persons;

*   Perform official duties in a professional and responsible manner;

…

*   Implement the policies and decisions of the Government.”

27. The Secretary abandoned reliance upon cl 251 of the CASR in this Court, which the primary judge had held was part of the “regulatory context”. [14]

    14. Primary judgment at [50].

28. Ultimately, it should be noted, the primary judge decided that the Commissioner “was obliged, when assessing the seriousness of [Mr Wattie’s] misconduct, at least to address the express prohibitions on the use of force against inmates (except in specified circumstances which are not said to be relevant here) and the mandatory obligations to report such use of force, however minor … [as] expressed, not only in cl 131 of the [CASR], but also in the Using Force on Inmates policy.”[15]

    15. Ibid at [48].

29. In my view, the Secretary cannot rely in this Court upon matters which were neither propounded before the primary judge, nor found by her Honour to be part of the “regulatory context” and which the Secretary did not suggest by way of notice of contention would also have supported her Honour’s decision.

Factual background

30. The factual background uncontroversially appears in the primary judge’s reasons as follows:

“7   The defendant had been employed within Corrective Services NSW (CSNSW) as a correctional officer since 1994. He had not been the subject of disciplinary investigation or action prior to the matters resulting in his dismissal. He was dismissed as a result of three assaults he committed against three inmates on 13 September 2014, 19 December 2014 and 29 December 2014.

8 On 7 August 2015 the defendant pleaded guilty to two counts of common assault and one count of assault occasioning actual bodily harm arising from the three incidents referred to above. The Local Court did not record a conviction on the common assault charges, but required the defendant to enter into good behaviour bonds for 12 months pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (s 10 bonds). In respect of the assault occasioning actual bodily harm, the defendant was convicted and required to enter into a good behaviour bond for 12 months pursuant to s 9 of the Crimes (Sentencing Procedure) Act. The defendant appealed to the District Court against the sentence imposed for the assault occasioning actual bodily harm. Garling ADCJ quashed the conviction for that offence and found the offence proven without proceeding to a conviction. He imposed a s 10 bond to be of good behaviour.

9   After the criminal proceedings were finalised, the plaintiff began disciplinary action against the defendant, who was invited to respond to the allegations of misconduct based on the three assaults. The allegations were contained in a letter to the defendant dated 11 September 2015, the following part of which was ultimately reproduced in the Commissioner’s reasons at [47] (see below):

‘The first set of allegations of misconduct is that on 13 September 2014 at the Amber Laurel Correctional Centre, NSW, you:

• Struck [an inmate] in the head/upper body multiple times without reasonable cause;

• Used force against [the inmate] that was unnecessary, unreasonable and not required to manage any risk presented by [the inmate], contrary to the Using Force on Inmates policy of CSNSW Custodial Policy and Procedures; and

• Failed to accurately report your use of force in writing, such that your report was false or misleading in a material particular, contrary to the requirements of the Using Force on Inmates policy of CSNSW Custodial Policy and Procedures, cl. 251(2) of the Crimes(Administration of Sentences)Regulation 2014 and the CSNSW Guide to Conduct and Ethics 2010.

The second set of allegations of misconduct is that on 19 December 2014 at the Amber Laurel Correctional Centre, NSW, you:

• Struck [an inmate] to the side of the head without reasonable cause;

• Used force against [the inmate] that was unnecessary, unreasonable and not required to manage any risk presented by [the inmate], contrary to the Using Force on Inmates policy of CSNSW Custodial Policy and Procedures; and

• Failed to report your use of force in writing, contrary to the requirements of the Using Force on Inmates policy of CSNSW Custodial Policy and Procedures.

The third set of allegations of misconduct is that on 29 December 2014 at the Amber Laurel Correctional Centre, you:

• Struck [an inmate] in the head/upper body multiple times without reasonable cause;

• Used force against [the inmate] that was unnecessary, unreasonable and not required to manage any risk presented by [the inmate], contrary to the Using Force on Inmates policy of CSNSW Custodial Policy and Procedures; and

[Not pressed].’

[Emphasis added in bold to indicate the regulatory (and policy) context relied upon by the plaintiff.]

10   At the conclusion of the disciplinary processes (which included oral and written representations from the defendant), the defendant was informed by letter to his solicitors dated 5 May 2016 that, on the basis of the following misconduct, his employment would be terminated if he did not tender his resignation within 7 days:

‘- On 13 September 2014 he struck an inmate (Inmate H) to the head/upper body without reasonable cause, and used force against him that was not warranted. He also failed to accurately report his use of force against the inmate, such that his report was false or misleading in a material particular;

- On 19 December 2014 he struck an inmate (Inmate B) to the side of the head without reasonable cause, using force against him that was not warranted and did not report his use of force against the inmate; and

- On 29 December 2014 he struck an inmate (Inmate C) multiple times to the head/upper body without reasonable cause and using force against him that was not warranted.’

11   Assistant Commissioner Wilson (who made the decision to dismiss the defendant) gave the following reasons for his decision (which the IRC reproduced in [57] of its reasons (see below)):

‘- The misconduct was very serious and involved more than one instance of an inmate being subject to undue use of force;

- SCO [Senior Correctional Officer] Wattie acknowledged that his conduct was wring [scil., wrong] however, I am not satisfied he appreciated the gravity of his misconduct;

- These matters have brought discredit upon SCO Wattie and had the effect of undermining the integrity and reputation of the government sector;

- Subjecting an inmate to undue force is incompatible with the duties and responsibilities of a Correctional Officer, being –

- A betrayal by SCO Wattie of his employer's trust and confidence; and

- Was intolerable conduct in the correctional environment, where he was required to exemplify good conduct;

- I cannot be satisfied that there will not be a similar occurrence of misconduct involving SCO Wattie, particularly when he could not even recall one of the instances when he used force, without reasonable cause, against an inmate [Inmate B on 19 December 2014]; and

- It would undermine public confidence in the government sector for a person who has acted so contrary to their responsibilities as a Correctional Officer, to remain employed as a Correctional Officer or in the NSW Public Service generally.’

12   The defendant did not tender his resignation, as a consequence of which he was informed by letter dated 13 May 2016 that his employment was terminated.” [Emphasis and parentheses in original.]

31. In his letter of 5 May 2016 advising Mr Wattie that he had determined that Mr Wattie had engaged in the misconduct identified in that letter, Assistant Commissioner Wilson identified the conduct in the 13 September 2014 incident as having been “contrary to the requirements of the Using Force on Inmates policy of CSNSW Custodial Policy and Procedures, (Using Force on Inmates Policy), cl 251(2) of the Crimes (Administration of Sentences) Regulation 2014 and the CSNSW Guide to Conduct and Ethics 2010.” In relation to the 19 December 2014 incident, Assistant Commissioner Wilson again described each element of Mr Wattie’s misconduct in using force as being contrary to the Using Force on Inmates policy. He also referred to that policy in referring to the 29 December 2014 incident. Finally, relevantly, Assistant Commissioner Wilson said he had made “a final decision with respect to misconduct action pursuant to s 69(4) of the Government Sector Employment Act 2013”, that decision being “[t]ermination of employment (with opportunity to resign).” The letter required Mr Wattie to resign, failing which his employment would be terminated. [16]

Industrial Relations Commission proceedings

16. Ibid at [62].

Commissioner’s decision

32. The unfair dismissal claim was heard by Commissioner Murphy. Members of the IRC (Commissioners) are appointed by the Governor. Save as to the requirement that the Chief Commissioner fall into one of the categories in s 148(2) of the IR Act, there are no eligibility criteria to be appointed a Commissioner. [17] Commissioner Murphy is not, and was not at the time of hearing Mr Wattie’s case, the Chief Commissioner.

    17. See Commissioner’s reasons at [57].

33. Mr Wattie admitted that he was guilty of the misconduct which formed the basis of his dismissal and that, accordingly, his dismissal was neither unreasonable nor unjust. The only issue was whether his dismissal was harsh.

34. Before the Commissioner, the Secretary relied upon statutory material described in oral and written submissions before the Commissioner as “the governing legislative scheme”, “background” or material “relevant” to the dismissal. Of the matters referred to by the primary judge as the “regulatory context”, the Secretary referred only in submissions to s 69 of the GSEA, something referred to as the “code of conduct” (presumably the CSNSW Code of Conduct referred to in the Award) and the OPM (which it will be recalled, was cross-referenced to cl 131 of CASR). It was not put to the Commissioner that it was mandatory that he have regard to that material in determining the issue of the harshness of the dismissal.

35. In his reasons, the Commissioner set out Mr Wattie’s history of employment with CSNSW, which commenced in April 1994, when he was 21. He recorded his career as a Correctional Officer which included the receipt of many commendations and awards, including the National Medal for Service, the CSNSW medal and the CSNSW Long Service Medal. He also recorded that, prior to the incident which led to his dismissal, Mr Wattie had never been the subject of any disciplinary investigation or action by CSNSW. [18]

    18. IR Act, s 148. Notwithstanding this, members of the IRC are judicial officers for the purposes of all but Pt 7A of the Judicial Officers Act 1986 (NSW).

36. Next, by way of background to the dismissal, the Commissioner recounted a number of mental health issues from which Mr Wattie said he had suffered for a period commencing in 2003, issues which were affected by the circumstances of his mother’s death and incidents of assaults by inmates in the course of his employment. Those were said to have been issues exacerbated by dealings with other fellow officers and other health matters. [19] The Commissioner found Mr Wattie to be “an honest and credible witness.” [20]

    19.    Commissioner’s reasons at [2] – [7].

    20.    Ibid at [8] – [23].

37. The Commissioner then detailed the three incidents which led to Mr Wattie’s dismissal, the third of which culminated in him being suspended with pay in accordance with s 70 of the GSEA pending its investigation. [21]

    21. Ibid at [64].

38. Next, the Commissioner detailed the criminal proceedings pursued by NSW Police against Mr Wattie in respect of each incident. [22]

    22. Ibid at [24] – [41].

39. In relation to the assault occasioning actual bodily harm matter, ultimately, on appeal to the District Court, Garling ADCJ ordered that the charge be dismissed, but that Mr Wattie enter a s 10(1)(b) bond. In so doing, his Honour said:

“The appellant is a man of excellent character. I have read references including him being praised for assisting in his work to such an extent that the Senior Assistant Commissioner has written to him complimenting him. He has also received another commendation. He has been a prison officer for many years.

I also have a reference from the President of the Penrith Rugby Club speaking highly of him. The appellant is in a difficult job, dealing with people who, from my knowledge of what goes on, show little or no respect to prison officers. They tend to act from time to time in a very provocative manner. The appellant obviously has handled that for many years but this time he was under some stress, I have a report from Dr Bruce Westmore, Psychiatrist, including that the appellant had a past history of depression. He had other stressors in his work and he was suffering from a major depressive disorder prior to and leading up to the matter now before the Court.

Taking all those matters into account and the other reports I have read which include one relating to features of post-traumatic stress disorder, I have concluded that whilst the offence was proven that this is a classic case where it should be dealt with pursuant to s 10 with a bond. It falls directly into the criteria set out as to how courts should deal with s 10 of the Sentencing Act.”[23]

23. Ibid at [42] – [46].

40. The upshot was that no conviction was recorded on any of the three charges.

41. The disciplinary proceedings were commenced following the finalisation of the criminal proceedings. [24] The Commissioner set out in full the first letter in that process written by Assistant Commissioner Wilson to Mr Wattie on 11 September 2015 in terms reproduced by the primary judge. [25]

    24. Ibid at [46].

    25. Ibid at [47] – [58].

42. Each of Assistant Commissioner Wilson’s letters to Mr Wattie of 22 March 2016 and 5 May 2016, both of which were tendered before the Commissioner, repeated the description of Mr Wattie’s misconduct from the 11 September 2015 letter, then identified the next step in the disciplinary process.

43. The 22 March 2016 letter advised Mr Wattie that Assistant Commissioner Wilson had determined in accordance with r 40(1)(a) of the GSEA that Mr Wattie had engaged in misconduct in respect of the three incidents and invited him to make submissions as to what disciplinary action Assistant Commissioner Wilson should impose. One of the possible penalties identified in the letter was termination of employment.

44. The Commissioner analysed Assistant Commissioner Wilson’s rejection of Mr Wattie’s explanation in relation to the first incident. The effect of that analysis as I understand it is that he rejected Assistant Commissioner Wilson’s conclusion that one of the matters Mr Wattie had propounded by way of explanation for his assault (in effect that he was provoked) was not made good having regard to CCTV footage and the police facts sheet tendered during the court proceedings. [26]

    26.    Primary judgment at [9], see [30] above.

45. In the 5 May 2016 letter, Assistant Commissioner Wilson advised of his decision to terminate Mr Wattie’s employment (subject to him resigning instead) and set out his reasons for that decision. The Commissioner set out those reasons verbatim. [27]

    27.    Commissioner’s reasons at [54]; see also at [79] – [81].

46. Mr Wattie’s unfair dismissal case before the Commission was that, while he took full responsibility for each of the incidents which led to his dismissal, he contended they were out of character and had occurred as a result of his mental state at the time. He identified the treatment he had sought and received in relation to that mental state and submitted that, as a result, there was no possibility such conduct would occur again.

47. In this respect, the Commissioner detailed what he described as “a significant amount of medical evidence” presented by Mr Wattie in support of his unfair dismissal application. [28] He accepted that evidence as demonstrating that Mr Wattie was experiencing serious mental health problems during the period leading up to, and including, the three incidents which led to his dismissal.

    28. Ibid at [57].

48. In particular, Mr Wattie’s submission that the three incidents were caused by his mental state at the time was supported by evidence from Dr Charles Chan, a consultant psychiatrist, who the Commissioner described as having “extensive experience working in correctional centres”. [29]

    29. Ibid at [65] – [68].

49. The Commissioner recorded Dr Chan’s opinions as follows:

“70. Dr Chan’s report contained the following extract:

‘I assess Mr Wattie’s prognosis as positive. Prior to the charges in 2014 there had been no prior disciplinary charges, or features suggestive of an anti-social personality disorder. Based on the longitudinal history, the assaults would likely be contributed by his depressive symptoms and poor impulsive control at the time. He had been motivated to receive medical treatment and compliant to his medications.

Mr Wattie has achieved full remission from his Major Depressive Episode, and I assess he is fit to return to work as a correctional officer and would not pose any significant risk in reoffending.’”

50. Dr Chan was cross-examined, but “did not resile from his evidence that, in the case of Mr Wattie, the assaults committed by him in September and December 2014 would likely be contributed [to] by his depressive symptoms and poor impulse control at the time.”[30]

    30. Ibid at [69].

51. The Secretary’s case before the Commission was that the three assaults constituted serious misconduct justifying dismissal. The Secretary submitted that Assistant Commissioner Wilson had taken into consideration all the material Mr Wattie had provided, including that going to his personal circumstances, the psychological and medical reports and Mr Wattie’s lengthy employment and service to CSNSW in making the dismissal decision. The Commissioner noted in this respect, however, that Assistant Commissioner Wilson had not had the benefit of Dr Chan’s evidence. [31]

    31. Ibid at [72].

52. The Secretary also submitted that the medical evidence before the Commission did not establish that the assaults Mr Wattie committed were the consequence of him suffering from depression and, too, that there was no contemporaneous independent evidence indicating Mr Wattie was suffering from any disorder in 2014, or at any time prior to January 2015. Alternatively, the Secretary submitted that if the Commission was to accept that Mr Wattie’s depression was a causal factor that led to the acts of violence, then in the light of the high risk of recurrence of depression, the risk of such conduct recurring was too significant to consider permitting him to resume employment as a correctional officer. [32]

    32. Ibid at [74].

53. The Commissioner held that, on their face, Mr Wattie’s actions in each of the three incidents relied upon constituted misconduct so as to render his dismissal neither unreasonable nor unjust. He observed:

“Assaults on inmates in correctional centres by correctional officers cannot be condoned nor tolerated, even in cases where there is significant provocation.”[33]

33. Ibid at [76] – [77].

54. The Commissioner returned to each incident and assessed its character.

55. As to the first incident, the Commissioner considered his earlier conclusion that Assistant Commissioner Wilson had been in error insofar as Mr Wattie contended he had been provoked. [34] He noted that, notwithstanding this, Mr Wattie accepted that he had overreacted at the time as demonstrated by his guilty plea to the charge of common assault. The Commissioner rejected, however, Assistant Commissioner Wilson’s conclusion that Mr Wattie had failed to report accurately his use of force on this occasion. In his view, this was “based on a misinterpretation of the police facts sheet tendered in the Local Court proceedings.”[35] The Commissioner concluded that while Mr Wattie’s actions in the first incident constituted misconduct, “given the surrounding circumstances, the seriousness of the misconduct in this incident, taken in isolation, is not, in my opinion, sufficient to justify [his] dismissal …”. [36]

    34. Ibid at [78].

    35. See above at [44].

    36.    Commissioner’s reasons at [79] – [82].

56. The Commissioner described the second incident as “somewhat baffling”, observing that while Mr Wattie was “seen to strike the inmate to the head [he] did not recall the incident or what led up to it.”[37] He noted that Dr Chan had “agreed that alcohol abuse could explain the loss of memory of particular incidents that have occurred sometime previously.”[38] The Commissioner also noted that the assault “does not appear to have been particularly forceful and there is no evidence that there was any injury suffered by the inmate.” Nevertheless, again, Mr Wattie had pleaded guilty to the charge of common assault arising from the incident. Once again, taken in isolation, the Commissioner concluded that the seriousness of the misconduct involved in the second incident was not such as to justify Mr Wattie’s dismissal. [39]

    37. Ibid at [83].

    38. Ibid at [84].

    39. Ibid at [85].

57. In relation to the first two incidents, the Commissioner concluded:

“89. The fact that no conviction was recorded in the local court [sic] in relation to either the first or second charges of common assault suggests that both matters were seen as falling at the lower end of the scale of seriousness.”

58. The Commissioner accepted that the third incident was the most serious matter. However, he also accepted that there had been significant provocation on the part of the inmate in relation to that incident. He observed that while it was clear Mr Wattie’s actions during the third incident constituted misconduct, Garling ADCJ’s remarks on appeal tended to put its seriousness into perspective. [40]

    40. Ibid at [84] – [88].

59. Nevertheless, the Commissioner concluded:

“92. The misconduct involved in this incident, when considered together with the misconduct involved in the previous two incidents, is such as to render the dismissal of Mr Wattie neither unjust nor unreasonable. The question remains, however, as to whether or not, in all the circumstances of this case, the dismissal was nevertheless harsh.”

60. The Commissioner then turned to consider the issue of the harshness of Mr Wattie’s dismissal. He referred to the Full Bench decision in Department of Health v Kaplan [41] for guidance. [42] Relevantly, that decision quoted Little v Commissioner of Police (No 2) [43] as demonstrating that:

“The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate ‘justification’ in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission.”

41. At [91]; see above at [39].

42. [2010] NSWIRComm 65 at [26] – [29] (Kaplan).

43. Commissioner’s reasons at [93].

61. The Commissioner concluded that there were a number of significant mitigating factors which had to be weighed in the balance against the seriousness of Mr Wattie’s misconduct. [44] He accepted as reliable the medical evidence that the mental illness Mr Wattie was suffering from caused, or contributed, to the dismissal incidents. Accordingly, he found that “[w]eighing all these mitigating factors against the seriousness of the misconduct, I am of the opinion that the dismissal of Mr Wattie was, in all the circumstances, harsh.”[45]

    44. (2002) 112 IR 212 at [71].

    45. Commissioner’s reasons at [94].

62. In considering whether Mr Wattie was entitled to the remedy of reinstatement, the Commissioner accepted the expert evidence that Mr Wattie’s prognosis was extremely good, and that he was fit to return to work as a correctional officer and would not pose any significant risk of reoffending. [46] On this basis the Commissioner concluded that reinstatement was not impracticable. [47]

    46. Ibid at [93] – [97].

    47. Ibid at [99].

63. Nevertheless, the Commissioner said:

“101. However, given that the dismissal of Mr Wattie was based on misconduct committed by him which, despite his mental condition at the time, cannot be excused, I decline to order that Mr Wattie be paid any back pay for the period from the time of his dismissal until the date of effect of the order for reinstatement. These proceedings should serve as a very clear warning to Mr Wattie that any future use of force by him, which is outside the relevant CSNSW policies, will almost certainly result in his dismissal. If this were to occur, it is difficult to imagine any circumstances which would warrant the intervention of the Commission a second time.”

64. Accordingly, the Commissioner ordered that Mr Wattie be reinstated to the position as Senior Correctional Officer he held with CSNSW immediately before his dismissal on the same terms and conditions as applied to his position at that time, and that his service be taken as not having been broken by virtue of his dismissal and the period between his dismissal and his reinstatement. [48]

    48. Ibid at [98] – [100]; see also s 89(5) IR Act.

65. The Secretary does not challenge the reinstatement order, if the Commissioner’s reasons were otherwise correct. Nor did the Secretary challenge before the primary judge (or in this Court), to the extent such a challenge is permissible within the context of a jurisdiction confined to jurisdictional error, any of the responses in which the Commissioner disagreed with Assistant Commissioner Wilson’s assessment of any of the incidents. [49]

    49. Ibid at [103].

Full Bench proceedings

66. The Secretary sought leave to appeal, and to appeal, from the Commissioner’s decision to a Full Bench of the Commission pursuant to ss 187(1) and 188 of the IR Act. Such an appeal may be made only with the leave of the Full Bench, which is to be granted if, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, leave should be granted: s 188(1) and (2). The Full Bench refused to grant leave to appeal. Aspects of the application and the Full Bench’s reasons require repetition.

67. Among the matters identified as a question raised by the proposed appeal in the amended application for leave to appeal and appeal was whether, in finding that the dismissal of Mr Wattie was harsh, and in ordering his reinstatement, the Commission erred by failing to have regard to relevant considerations, including the statutory and policy context that governed Mr Wattie’s employment and the submissions of the Secretary before the Commissioner relating to the seriousness of the misconduct on which the decision to dismiss was based. The summons referred parenthetically to the GSEA as the “statutory and policy context”. This was also raised in the Secretary’s written submissions. [50] As will be apparent, this is not how the Secretary’s case had been put before the Commissioner.

    50. See [129] below.

68. Before the Full Bench, the Secretary submitted that leave to appeal should be granted because the proposed appeal raised important questions of principle concerning the interaction of the Use of Force on Inmates policy and the unfair dismissal provisions of the Act and also because the Commissioner had failed to apply “orthodox industrial jurisprudence” when determining the nature of Mr Wattie’s misconduct and, as a consequence, had “misdirected himself on the test to apply in determining whether the dismissal was harsh.” [51]

    51.    See primary judgment at [26] – [28].

69. The Full Bench first held that the proposed appeal did not raise any overarching question of principle concerning the interaction between the relevant policy and the IR Act and that each application brought pursuant to s 84 of the IR Act was “to be treated on its own merits.” The Full Bench added that a “decision about whether an individual dismissal could be regarded as harsh, unreasonable or unjust will depend on the facts of that case including, necessarily, consideration of any policy that the employee was bound to follow and, equally necessarily, any mitigating circumstances.” [52]

    52.    Full Bench decision at [15] – [17], per Tabbaa C AM, Acting Chief Commissioner; Stanton C and Newall C.

70. Secondly, the Full Bench rejected the Secretary’s submission that the Commissioner failed to address the policies of Corrective Services in assessing Mr Wattie’s misconduct. In the Full Bench’s view, it was apparent from the Commissioner’s reasons, he having made an express finding of misconduct, and heard all the evidence and submissions, that he had done so. [53]

    53. Ibid at [18].

66. Thirdly, the Full Bench rejected the Secretary’s submission that the Commissioner failed to apply “orthodox industrial jurisprudence”, in that he conflated his analysis of the charges of misconduct. [54] In its view, that submission misconceived the Commissioner’s obligations in that respect. [55] Rather than being obliged, as the Secretary submitted, to analyse each charge of misconduct as drawn up, or even the findings in relation to them as they were relied upon to effect the dismissal, the Full Bench observed that the Commissioner was not undertaking an exercise in administrative review. What he was “required to do was analyse each of the incidents of misconduct upon which the decision to dismiss was based, and form a view about [their] severity.” That enquiry was directly relevant to the analysis the Commissioner was obliged to carry out under the tripartite test as to whether the dismissal was harsh.

    54. Ibid at [19] – [20], referring to the Commissioner’s reasons at [78] and [101].

    55. Ibid at [16].

67. The Full Bench was satisfied that the Commissioner carried out the task of analysing the incidents of misconduct as required including, in doing so, having regard to the Secretary’s policies. He was also mindful of the terms of the allegations the Secretary put to Mr Wattie having set them out at paragraph [47] of his decision. [56] The Full Bench was satisfied the Commissioner had undertaken this analysis.

    56. Ibid at [22].

68. The Full Bench concluded in this respect:

“[27]   On the basis of that analysis, it was in our view clearly open to the Commissioner to come to the view, in the face of the mitigating circumstances, that dismissal in this particular case for the particular misconduct was harsh. There was before the Commissioner substantial evidence that permitted him to come to that view. That evidence included the respondent’s employment history and also included medical evidence from Dr Westmore, Dr Chandrasekara and Dr Chan, in particular, Dr Chan’s evidence as to the likely link between the respondent’s depressive symptoms and poor impulsive control and the assaults. That latter evidence, relied on by the Commissioner below, was evidence of a kind which, as the Full Bench held in Corrective Services NSW v Danwer [2013] NSWIRComm 61, it is proper to weigh in considering the tripartite test.”

74. The Full Bench held that the Commissioner did not misdirect himself in determining whether the dismissal was “harsh”, observing that he had appropriately “referred to and applied the precepts set out in the decision of the Full Bench in [Kaplan] and the long-standing and often-cited authorities to which that case refers.”[57]

    57. Ibid at [22] – [26].

75. In the Full Bench’s view, to say the Commissioner gave insufficient weight to the public interest factors relied upon by the Secretary was to say no more than that the Secretary disagreed with the weight afforded to those matters. [58]

    58. Ibid at [28].

76. The Full Bench concluded that appellate intervention was not warranted primarily because no error had been disclosed in the Commissioner’s decision, there were no matters of principle at large in the appeal that would justify an appeal being heard aside from such error and, accordingly, there was no proper basis on which, in the public interest, leave should be granted, nor was there any other basis warranting the grant of leave. [59]

    59. Ibid at [29].

Primary judgment

77. The sole ground on which jurisdictional error was alleged by the Secretary before the primary judge was that the Commissioner was obliged, but failed, to take into account the statutory framework and instruments germane to Mr Wattie’s employment in his determination that Mr Wattie’s dismissal was, though neither unreasonable nor unjust, harsh. [60]

    60. Ibid at [33] – [34].

78. Before the primary judge, the Secretary complained that the Commissioner, and, accordingly the Full Bench of the IRC, erred in failing to take into consideration what was described in the further amended judicial review summons (judicial review summons) as “the statutory scheme” pursuant to which Mr Wattie was employed. That scheme was identified, in short, as being:

1. sections 6(a), 7 and 69 of the GSEA; [61]

2. clause 131 (Use of force in dealing with inmates) of the CASR;

3. section 13.7 of the Using Force on Inmates policy in the OPM;

4. clause 24 of the Award; [62] and

5. the Guide.

   61. Primary judgment at [5].

   62.    The Secretary abandoned reliance on these provisions in this Court.

79. There was an issue both before the primary judge, and in this Court, as to whether the Secretary’s case concerning mandatory relevant considerations comprised in the “statutory scheme” had been advanced before the Commission and on the leave application to the Full Bench.

80. It was uncontroversial that before the Commissioner, the Secretary had tendered all the documents said to constitute the “statutory scheme”. However, Mr Wattie contended that most of the provisions or policies were not referred to or relied upon by the Secretary in deciding to terminate his employment, nor referred to in submissions before the Commissioner.

81. The primary judge concluded that the Secretary “sufficiently raised” before the Commissioner and the Full Bench the matters raised before her. [63] Insofar as the conduct of the case before the Commissioner was concerned, this was because the importance of cl 131 of the CASR and the Using Force on Inmates policy ought to have been apparent to the Commissioner, and cl 131 “was included in the tender of a slim bundle of regulatory material”, the Using Force on Inmates policy was “separately tendered and was specifically referred to in the correspondence” between the Secretary and Mr Wattie, which was extracted in the Commissioner’s reasons at [47]. [64]

    63.    The Secretary abandoned reliance on the Award before the primary judge, but sought to rely upon it in this Court.

    64.    Primary judgment at [29], [33] and [58].

82. The primary judge held that if the Secretary established jurisdictional error in the Commissioner’s decision that would also establish jurisdictional error in the Full Bench’s refusal of leave, as the Full Bench would have had no jurisdiction to refuse leave to appeal if the Commissioner’s decision was affected by jurisdictional error. [65]

    65. Ibid at [58].

83. The primary judge next held that any mandatory relevant consideration must arise by necessary implication, having regard to the regulatory and policy context, given that the Secretary did not submit that there was any express requirement that the Commissioner consider the relevant statutory context (including applicable legislation, subordinate legislation and policy documents) before deciding whether Mr Wattie’s dismissal was harsh, unjust or unreasonable. [66]

    66. Ibid at [34] – [38].

84. The primary judge first set out the details of the documents the Secretary described as the “statutory scheme” in the judicial review summons. [67] In addition, her Honour referred to cl 251 of the CASR. Although not referred to in the judicial review summons, cl 251 was referred to in Assistant Commissioner Wilson’s correspondence with Mr Wattie.

    67. Ibid at [39].

85. The primary judge recognised that although s 88 of the IR Act did not mandate that the Commissioner have regard to any particular consideration, such an obligation could be derived by necessary implication from the legislative context.

86. The primary judge next referred to Byrne v Australian Airlines Ltd [68] where McHugh and Gummow JJ discussed the concept of a termination of employment which was harsh, unjust or unreasonable, or a combination of the three. The passage to which her Honour referred was applied in Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Secretary of the Treasury, in which the Court of Appeal held that the Full Bench of the IRC had committed jurisdictional error by “failing to undertake the ‘essential task’ of identifying the element of misconduct, assess[ing] its seriousness and weigh[ing] that against the consequences of the proposed dismissal.”[69]

    68. Ibid at [43] – [50].

    69. (1995) 185 CLR 410 at 465; [1995] HCA 24 (Byrne).

87. In her Honour’s view, the Commissioner made an error of the same character as that made by the Full Bench in PSA. [70]

    70. [2014] NSWCA 112; (2014) 242 IR 318 (PSA) at [70] – [71] per Basten JA (Ward JA and Bergin CJ in Eq agreeing); referred to in the primary judgment at [54].

88. The primary judge then said:

“56   While there may be other occupations to which the regulatory context is largely irrelevant, the same cannot be said for the employment of correctional officers. The State is responsible for every inmate, having either, through its enforcement arm (the police force), arrested and taken an accused person into custody, or through its judicial arm, imposed a sentence, or refused bail. Correctional officers are centrally engaged in the obligations of the State to safeguard all persons who are in custody, either on remand following refusal of bail, or not having applied for bail, awaiting a criminal hearing, or who are serving a custodial sentence imposed by a court. When a correctional officer assaults a prisoner, he or she is doing so in the exercise of the actual or ostensible authority conferred by the State on correctional officers who are its agents, even where, as here, the assault falls outside the warranty of authority because it is in breach of the Using Force on Inmates policy.

57 Clause 131 of the Crimes (Administration of Sentences) Regulation is plainly intended to ensure that correctional officers do not use force against inmates except in certain defined circumstances. Section 13.7 of the CSNSW Operations Procedures Manual, Using Force on Inmates Policy, is designed to implement cl 131. As a consequence of the relationship between the State and those it detains in custody, the State owes a duty to exercise reasonable care for the safety of inmates during the period of their detention: Howard v Jarvis (1958) 98 CLR 177 at 183; [1958] HCA 19. Where a prison officer has been found guilty of assault under the general law and has thereby breached cl 24 of the award and the Code of Conduct incorporated in it, and cl 131 of the Crimes (Administration of Sentences) Regulation (and the associated policy), the State may, by exposing inmates to the defendant (by permitting him to remain employed as a correctional officer), be putting itself in breach of that duty.

58 The importance of cl 131 of the Crimes (Administration of Sentences) Regulation and the Using Force on Inmates Policy ought to have been apparent to the Commissioner. Clause 131 was included in the tender of a slim bundle of regulatory material. The Using Force on Inmates policy was separately tendered and was specifically referred to in the correspondence between the plaintiff and the defendant that was in evidence, including the letter of 11 September 2015 from the Assistant Commissioner to the defendant in which detailed allegations of misconduct were set out. This letter was extracted in the IRC Commissioner’s reasons at [47]. As referred to above, I reject the defendant’s submission that the regulatory context was not sufficiently raised by the plaintiff in the IRC.

59 Having regard to the central relevance of the regulatory context to the question whether the dismissal was harsh, it was, in my view, a condition of the valid exercise of the Commissioner’s power that he consider that context. Although that requirement was not explicitly stated in the IR Act, it was central to the Commissioner’s task of deciding whether dismissal was relevantly harsh and, if so, what remedy would be appropriate. Any purported exercise by the Commissioner of the powers under s 89 of the IR Act in which he did not have regard to the regulatory context could not, in my view, be a bona fide attempt to exercise the power. In the present case, I am persuaded that the task of assessing the seriousness of the misconduct (which formed part of the ‘essential task’ which the Commissioner was obliged to undertake in deciding whether the dismissal was unjust) required the regulatory context to be taken into account since it was only within that context that the seriousness of the defendant’s misconduct as a correctional officer could be assessed.” [Emphasis in original.]

89. Her Honour then turned to consider whether the Commissioner had taken the regulatory context into account. Her Honour recognised that the weight to be given to mandatory relevant considerations was a matter for the Commissioner, but observed that “where a decision-maker has failed to give any consideration to such a matter, the decision has not been made in accordance with law.”[71]

    71. Primary judgment at [55].

90. Before her Honour, Mr Wattie submitted the Commissioner had addressed the regulatory context by reproducing the allegations of misconduct made in the letter of 11 September 2015 (at [47] of the reasons); referring to the reasons given by Assistant Commissioner Wilson for dismissing the defendant in his letter of 5 May 2016 (at [57] of his reasons), saying, at [78] of his reasons, that “[a]ssaults on inmates in correctional centres by correctional officers cannot be condoned or tolerated, even in cases where there is significant provocation”; and by referring to the “relevant CSNSW policies” in [101] of the reasons. [72]

    72. Ibid at [60].

91. Her Honour held that, although the Commissioner was not required to address in terms each of the statutory provisions or policy material relevant to the obligations of correctional officers towards inmates, he was required to consider the substance of the statutory provisions and policy material relevant to those obligations and demonstrate by his reasons that he had done so. In the present context, when addressing the seriousness of the misconduct, that obliged the Commissioner to address the express prohibitions on the use of force against inmates and the mandatory obligations to report such use of force, however minor. [73]

    73. Ibid at [61].

92. The primary judge accepted that the Commissioner had reproduced extracts of the correspondence in which the Secretary set out the allegations against Mr Wattie (which contained references to the regulatory context and the Using Force on Inmates policy) and the Secretary’s reasons for dismissing Mr Wattie. However, in her Honour’s view:

“63 … [T]he Commissioner’s reasons do not reveal that he addressed the regulatory context. Consideration of the substance of the regulatory context required consideration of the circumstance that use of force by a correctional officer against an inmate, which amounted to criminal assault on not one but three separate occasions, was antithetical to that context and to the integrity of the criminal justice system. It constituted an abuse of the power of the State by the defendant who, as one of its correctional officers, was acting as its agent. I do not regard the Commissioner’s general observation in [78] that assaults on inmates in correctional centres by correctional officers cannot be condoned or tolerated as sufficient to indicate that he gave any consideration to the regulatory context. Indeed, one could substitute almost any job title for ‘correctional officers’ (including bouncers) and any workplace for “correctional centres” (including licensed premises) and any class of victims for “inmates” (including clients) and the sentence would remain true. The reference to the ‘relevant CSNSW policies’ in [101] was insufficient to demonstrate that they had been taken into account.” [Emphasis added.]

93. The primary judge concluded that the Commissioner’s reasons warranted an inference that he failed to take into account the regulatory context since the “scant reference to such matters [was] almost exclusively confined to quotations from the [Secretary’s] correspondence.” Her Honour repeated that she regarded the passages in his reasons (at [78] and [101]) on which Mr Wattie relied as “too general for an inference to be drawn” that he actually considered the “regulatory context”. [74]

    74. Ibid at [62].

94. The primary judge recognised that unfair dismissal cases were “the particular province of” the IRC, and that, accordingly, decisions in such cases by the Commission and the Full Bench were “not readily susceptible to narrow challenges on the grounds of ‘jurisdictional error’.” Rather, the “[t]he task [was] to examine whether the tribunal misconceived its role or otherwise failed to exercise its jurisdiction so that its decision should not be seen as a true exercise of the power committed to it at all.” [75]

    75. Ibid at [64].

95. Adopting that approach, the primary judge held:

“69   In the present case, the Commissioner ignored relevant material (the regulatory context) and reached a conclusion which was erroneous because it lacked an essential integer: an assessment of the seriousness of the misconduct which required consideration of the regulatory context. I am satisfied that this amounted to a jurisdictional error since it centrally affected the task which the Commissioner was required to undertake in determining [Mr Wattie’s] application under s 84 of the IR Act. In these circumstances the Commissioner’s decision ought not [to] be seen as a true exercise of the power to determine whether the dismissal was, relevantly, harsh, and, if so, what relief ought [to] be granted. I have arrived at my conclusion by the application of the principles to which I have referred. However, it is also significant that jurisdictional error was found by the Court of Appeal in the PSA Case, in circumstances which do not appear to me to be materially different from the present case.” [Emphasis added.]

96. Accordingly, the primary judge set aside the decisions of the Commissioner and the Full Bench and ordered Mr Wattie to pay the Secretary’s costs. Her Honour remitted Mr Wattie’s application under s 84 of the IR Act to the IRC to be determined according to law. [76]

    76. At [66] – [68]; accepting the statements to like effect in Toms v Harbour City Ferries Pty Ltd (2015) 229 FCR 537; [2015] FCAFC 35 at [42], [59] per Buchanan J (Allsop CJ and Siopis J agreeing), albeit referring to the Commonwealth Fair Work Commission, were applicable to the determination whether there had been jurisdictional error by the Commission and the Full Bench.

Grounds of appeal

97. Mr Wattie relies on the following grounds of appeal:

1. the Court at first instance erred in finding that the “regulatory context” of Mr Wattie’s employment constituted a mandatory consideration in the unfair dismissal proceedings brought under s 84 of the IR Act such that it was necessary for the valid exercise of the Commissioner’s powers that he consider that context.

2. the Court at first instance erred in finding that Commissioner Murphy failed to take into account the regulatory context of the employment of Mr Wattie’s employment and thereby fell into jurisdictional error in deciding that the dismissal of Mr Wattie was harsh.

3. the Court at first instance erred in finding that Commissioner Murphy fell into jurisdictional error by failing to take into account the regulatory context of Mr Wattie’s employment, having regard to the manner in which the case was run by the Secretary at first instance.

4. the Court at first instance erred in finding that the decision of the Full Bench to refuse leave to appeal was affected by jurisdictional error, if error was found in the decision of Commissioner Murphy, without considering whether the Full Bench itself fell into jurisdictional error in the exercise of its appellate function.

Appellant’s submissions

Ground 1: whether the “regulatory context” constituted a mandatory relevant consideration

98. Mr Wattie submitted that the primary judge’s conclusion that the Commissioner was bound to take into account particular considerations as mandatory, or as a “condition of the valid exercise of the Commissioner’s powers”, was inconsistent with the statutory scheme and was not spelt out in, nor a necessary implication from, the statutory language. While he accepted that the factors a decision-maker is bound to take into account may be affected by the subject matter, scope and purpose of the IR Act, he contended that a court will not readily imply an obligation to consider a matter in the context of an unconfined discretionary power such as s 88 of the IR Act.

1. such other matters as the Commission considers relevant.

193. Under s 89(1), the Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. Under s 89(3), if the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order.

Background to the termination

194. Three incidents gave rise to the action taken by the Secretary to terminate Mr Wattie’s employment. The three incidents occurred on 13 September 2014, 19 December 2014 and 29 December 2014. Mr Wattie has had a distinguished career as a correctional officer and has received several commendations, medals and awards for his service. Prior to the incidents that led to his dismissal, Mr Wattie had never been the subject of any disciplinary investigation or action by Corrective Services NSW.

195. On 7 January 2015, Mr Wattie was suspended pending investigation of the third incident. On 13 January 2015, he was arrested and charged by Police with common assault in respect of the first two incidents and assault occasioning actual bodily harm in relation to the third incident. Mr Wattie entered pleas of guilty to each of the three charges. Ultimately, findings were made that the offences were proved but no convictions were recorded. Mr Wattie was placed on a bond.

196. On 11 September 2015, following the finalisation of those criminal proceedings, Corrective Services NSW wrote to Mr Wattie setting out the allegations of misconduct by reason of the three incidents. On 2 October 2015, Mr Wattie provided a comprehensive response to the misconduct allegations. On 22 March 2016, Corrective Services NSW wrote to Mr Wattie’s solicitors saying that a determination had been made that Mr Wattie had engaged in misconduct and that consideration was being given to disciplinary action in relation to the misconduct. On 5 May 2016, Corrective Services NSW wrote again to Mr Wattie’s solicitors saying that a decision had been made that Mr Wattie’s employment be terminated with the opportunity to resign. Mr Wattie was required to tender his resignation within seven days, or otherwise his employment would be terminated. He did not do so and his employment was terminated. Mr Wattie then commenced proceedings under s 84 of the IR Act.

The Commissioner’s determination

197. On 11 October 2016, the Commissioner published his reasons for concluding that the termination was harsh and for ordering that Mr Wattie be reinstated to the position of Senior Correctional Officer, on the same terms and conditions as applied to his position at the time of the termination. The Commissioner declined to order that Mr Wattie be paid any back pay for the period from the time of his dismissal until the date of the effective proposed order for reinstatement.

198. After recounting the background summarised above, the Commissioner observed that Mr Wattie’s actions in each of the three incidents could not be condoned or tolerated, even where there was significant provocation. In relation to the first incident, the Commissioner concluded that, whilst Mr Wattie’s actions constituted misconduct, given the surrounding circumstances, the seriousness of the misconduct in the incident was not sufficient to justify the dismissal of Mr Wattie. The Commissioner also considered that, taken in isolation, the seriousness of the misconduct involved in the second incident was not such as to justify the dismissal of Mr Wattie. However, the Commissioner concluded that the misconduct involved in the third incident, when considered together with the misconduct involved in the previous two incidents, was such as to render the dismissal of Mr Wattie neither unjust nor unreasonable. The question remained, however, as to whether or not, in all the circumstances of the case, the dismissal was nevertheless harsh.

199. After considering a number of significant mitigating factors, including reliable medical evidence that Mr Wattie’s conduct was caused or contributed to by mental illness, the Commissioner concluded that, after weighing all of the mitigating factors against the seriousness of the misconduct, the dismissal of Mr Wattie was, in all the circumstances, harsh. Nevertheless, given that the dismissal of Mr Wattie was based on misconduct that could not be excused, despite his mental condition at the time, the Commissioner declined to order that Mr Wattie be paid any back pay for the period from the time of his dismissal until the date of the effective proposed order for reinstatement.

200. The Commissioner said that the proceedings should serve as a very clear warning to Mr Wattie that any future use of force by him outside the relevant Corrective Services NSW policies would almost certainly result in his dismissal. The Commissioner observed that, if that were to occur, it was difficult to imagine any circumstances that would warrant the intervention of the Commission a second time.

The Full Bench

201. Under s 187 of the IR Act, a party to proceedings in which a decision of the Commission constituted by a single member was made may appeal to the Full Bench of the Commission. However, under s 188, an appeal to a Full Bench may be made only with the leave of the Full Bench.

202. The Secretary applied to the Full Bench for leave to appeal from the Commissioner’s determination. The questions said to be raised by the proposed appeal were:

• whether the Commissioner erred in the exercise of statutory powers in finding that the dismissal of Mr Wattie was harsh;

• whether, in finding that the dismissal of Mr Wattie was harsh, the Commission erred by failing to have regard to relevant considerations, including failing to have regard to “the statutory and policy context” that governed Mr Wattie’s employment and failing to have regard to the submissions by the Secretary relating to the seriousness of the misconduct on which the decision to dismiss was based.

It is significant that in the Secretary’s amended application for leave to appeal, no mention was made of jurisdictional error on the part of the Commissioner.

203. On 28 February 2017, for reasons published on that day, the Full Bench of the Commission refused leave to appeal. Section 179(1) of the IR Act provides that a decision of the Commission, however constituted, is final and may not be appealed against, reviewed, quashed or called into question by any Court or Tribunal. Nevertheless, a decision of the Tribunal is amenable to judicial review under s 69 of the Supreme Court Act. [167]

     167. Primary judgment at [69].

Decision of the Primary Judge

204. Mr Wattie then commenced proceedings in the Common Law Division seeking judicial review, under s 69, of the decision of the Commissioner and the decision of the Full Bench. By his further amended summons, Mr Wattie stated his grounds of review, relevantly, as follows:

• the Commissioner erred in failing to take into consideration the statutory scheme pursuant to which Mr Wattie was employed in the public service constituted by the following:

• clause 131 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (the Regulation);

• the Using Force on Inmates Policy in the Operations Procedures Manual published by Corrective Services NSW (the Policy);

• clause 24 of the Crown Employees (Correctional Officers, Department of Attorney General and Justice - Corrective Services) Award 2012 (the Award); and

• the Statement of Purpose and Values of Corrective Services NSW, found in the Guide to Conduct and Ethics published by Corrective Services NSW (the Guide); and

• by reason of the matters referred to above, the Commissioner fell into jurisdictional error.

205. On 30 November 2017, for reasons published on that day, a judge of the Common Law Division (the primary judge) made orders setting aside the decision made by the Commissioner on 11 October 2016 and the decision of the Full Bench made on 28 February 2017. The primary judge remitted Mr Wattie’s application under s 84 of the IR Act to be determined according to law.

206. In her reasons for setting aside the Commissioner’s decision and the decision of the Full Bench, the primary judge observed that the State is responsible for every inmate and that correctional officers are centrally engaged in the obligations of the State to safeguard all persons who are in custody. Her Honour observed that, when a correctional officer assaults a prisoner, that officer is doing so in the exercise of the actual or ostensible authority conferred by the State on correctional officers who are its agents.

207. Her Honour then referred to cl 131 of the Regulation. Her Honour said that that provision is plainly intended to ensure that correctional officers do not use force against inmates except in certain defined circumstances. Her Honour also referred to s 13.7 of the Policy, which her Honour said, is designed to implement cl 131 of the Regulation. Her Honour said that, as a consequence of the relationship between the State and those it detains in custody, the State owes a duty to exercise reasonable care for the safety of inmates during the period of their detention, and that when a prison officer has been found guilty of assault and has therefore breached cl 24 of the Award and the Code of Conduct incorporated into it, the Policy and cl 131 of the Regulation, the State may, by exposing inmates to Mr Wattie, and by permitting him to remain employed as a correctional officer, be putting itself in breach of that duty.

208. The primary judge rejected Mr Wattie’s submission that the “regulatory context” was not sufficiently raised by the Secretary before the Commission. Her Honour observed that, because cl 131 of the Regulation was included in a slim bundle of regulatory material provided to the Commissioner by the Secretary, its importance ought to have been apparent to the Commissioner. The Policy was separately tendered and was specifically referred to in the letter from Corrective Services NSW to Mr Wattie in which the detailed allegations of misconduct were set out.

209. The primary judge expressed the view that, having regard to the central relevance of the “regulatory context” to the question of whether the dismissal was harsh, it was a condition of the valid exercise of the Commissioner’s power that he consider that context. Her Honour said that, although that requirement was not explicitly stated in the IR Act, it was central to the Commissioner’s task of deciding, relevantly, whether the dismissal was harsh and, if so, what remedy would be appropriate.

210. Having been satisfied that the Commissioner was obliged to take into account “the relevant regulatory context”, the primary judge then considered whether the Commissioner actually did so. Her Honour observed that the weight to be given to mandatory relevant considerations is a matter for the decision-maker, but, where a decision-maker fails to give any consideration to such a matter, the decision will not be made in accordance with law.

211. The primary judge observed that, although the Commissioner was not required to address, in terms, each of the statutory provisions or policy material relevant to the obligations of correctional officers, the Commissioner was required to consider the substance of those matters and to demonstrate by his reasons that he had done so. Her Honour said that the Commissioner was obliged, when assessing the seriousness of the misconduct, to address the express prohibitions on the use of force against inmates and the mandatory obligations to report such use of force. Her Honour considered that those prohibitions were expressed, not only in cl 31 of the Regulation but also in the Policy, to which several references were made in the letter of 11 September 2015.

212. The primary judge concluded that the Commissioner’s reasons did not reveal that he addressed the “regulatory context” and that consideration of the substance of the “regulatory context” required consideration of the circumstances that use of force by a correctional officer against an inmate, which amounted to criminal assault on not one but three separate occasions, was antithetical to “that context” and to the integrity of the criminal justice system. Her Honour characterised the conduct as an abuse of the power of the State by Mr Wattie, who was acting as an agent of the State.

213. The primary judge did not regard the Commissioner's general observation that assaults on inmates in correctional centres by correctional officers could not be condoned or tolerated as sufficient to indicate that he gave any consideration to the “regulatory context”. Her Honour considered that the Commissioner’s reasons warranted the drawing of an inference that he failed to take into account the “regulatory context”, since the scant reference to such matters was almost exclusively confined to quotations from the correspondence referred to above. Her Honour considered that the comments made by the Commissioner were too general for an inference to be drawn that the “regulatory context” was actually considered by the Commissioner.

The appeal

214. By summons filed on 20 December 2017, Mr Wattie sought leave to appeal to this Court from the orders made by the primary judge. Leave is required under s 101(2)(r) of the Supreme Court Act because the proceedings before the Commission did not involve a simple money claim. A direction has been given that the appeal be heard concurrently with the application for leave if leave be granted. The Secretary originally opposed the grant of leave but that opposition was subsequently withdrawn. In the circumstances, leave to appeal should be granted.

215. The grounds of appeal may be restated as follows:

1. The primary judge erred in finding that the “regulatory context” of Mr Wattie's employment constituted a mandatory consideration in the unfair dismissal proceedings brought under s 84 of the IR Act, such that it was a condition of a valid exercise of the Commissioner's power that he consider that context.

2. The primary judge erred in finding that the Commissioner failed to take into account “the regulatory context” and thereby fell into jurisdictional error.

3. The primary judge erred in finding that the Commissioner fell into jurisdictional error by failing to take into account “the regulatory context” of Mr Wattie's employment having regard to the manner in which the case was run by the Secretary before the Commissioner.

4. The primary judge erred in finding that the decision of the Full Bench to refuse leave to appeal was affected by jurisdictional error if error was found in the decision of the Commissioner, without considering whether the Full Bench itself fell into jurisdictional error in the exercise of its appellate function.

Formulation of the “regulatory context”

216. The formulation of “the regulatory context” to which the primary judge held the Commissioner was bound to have regard is by no means clear. In the course of the argument, Senior Counsel for the Secretary emphasised specific provisions of the Regulation, the Policy, the Award and the Guide that were said to constitute the regulatory framework. Those provisions were particularised in the summons commencing proceedings in the Common Law Division. However, they were not the subject of any exhaustive formulation either in writing or orally before the Commissioner or the Full Bench. It is desirable, therefore to identify the relevant provisions.

217. Clause 131 of the Regulation relevantly provided as follows:

“131   Use of Force in Dealing with Inmates

(1)   In dealing with an inmate, a correctional officer may use no more force than is reasonably necessary in the circumstances, and the infliction of injury on the inmate is to be avoided if at all possible.

(2)   The nature and extent of the force that may be used in relation to an inmate are to be dictated by circumstances, but must not exceed the force that is necessary for control and protection, having due regard to the personal safety of correctional officers and others.

(3)   If an inmate is satisfactorily restrained, the only force that may be used against the inmate is the force that is necessary to maintain that restraint.”

Clause 131(4) sets out the purposes for which a correctional officer may have recourse to force, subject to cll 131(1) to 131(3).

218. The Policy is contained in the Operations Procedures Manual published by Corrective Services NSW. It appears in s 13.7 dealing with “Using Force on Inmates”. Section 13.7.2 relatively states the Policy as follows:

“Clause 131 of the [Regulation] sets out the situations when you can use force. You must use alternative methods to resolve problematic behaviour whenever possible. A peaceful, injury-free solution is the first objective.

When emerging problematic behaviour is identified early enough and managed according to Corrective Services NSW's case-management policy, the need to use force may be reduced.

In managing non-compliant behaviour by inmates, there are strategies to minimise the risk. They include:

•   persuasion and negotiation

•   presence of and frequency of patrols

•   presence of and instructions from senior officers.

When it is used, the force you apply must be reasonable and appropriate to the circumstances. Once an inmate has been satisfactorily restrained, you must not apply additional force. If it's no longer necessary to restrain the inmate, you must stop applying force and you must remove restraints.

Every time you use force, you must justify its use, as well as the type of force you applied and the duration you applied it. This includes an explanation if restraints were used.”

Clearly enough, the Policy is intended to assist Correctional Officers in the implementation of cl 131 of the Regulation.

219. Clause 24 of the Award deals with “Professional Conduct”. It relevantly provides as follows:

“(i)   Officers shall be committed to personal conduct and service delivery in accordance with the principles, mission and corporate objectives as expressed in the [Corrective Services NSW] Corporate Plan.

(ii)   Officers shall perform their duties diligently, impartially and conscientiously to the best of their ability by complying with the [Corrective Services NSW] Code of Conduct in the performance of their duties.

(iii)   All officers will be professional in their conduct with the public, other staff and inmates.

(iv)   Officers shall comply with the requirements of the [Corrective Services NSW] Dress Manual and will ensure their dress and grooming are of the highest standard.”

Clause 24 does not appear to add any content to the requirements of cl 131 and the Policy.

220. Part 1 of the Guide contains a “Statement of Purpose and Ethical Principles”. Clause 1.1 is a “Statement of Purpose and Values of Corrective Services NSW”. It lists the following under the heading “Values”:

“Justice and Equity

Regard for community expectations and public interest

Safety, welfare and positive development of offenders

Secure and humane management of offenders

…

Responsibility and Respect

Professionalism

Safety and well-being of staff

Continuous learning and professional development of staff.”

Clause 1.3 is a “Statement of Ethical and Professional Principles” and includes the following:

“The following is a set of principles by which the [Corrective Services NSW] operates:

(1)   Place public interest and integrity above private interest;

(2)   Respect and protect the dignity and human rights of all persons;

(3)   Perform official duties in a professional and responsible manner;

(4)   Follow the principles of good working relationships;

(5)   Work with economy and efficiency;

(6)   Implement the policies and decisions of the Government;

(7)   Provide a quality service.”

221. Part 2 of the Guide is “Ethical Principles in Practice”. Clauses 2.1 and 2.2 relevantly provide as follows:

“2.1   THE CORPORATE CONTRACT

[Corrective Services NSW] recognises its responsibility to all employees by providing adequate resources to enable them to operate to the best of their ability.

In return, [Corrective Services NSW] expects all employees to act conscientiously and with integrity and honesty, to provide appropriate and timely advice fearlessly and frankly and to make full disclosure of all relevant information.

2.2   ETHICAL LEADERSHIP

Ethical leadership is a quality strongly encouraged in all public servants and it is essential that managers reinforce this quality by demonstrating ethical behaviour in all aspects of their work. Managers should model the standard of professional and ethical conduct for their employees to adopt. Employees will value their managers’ leadership if they act reasonably, fairly and display a high standard of ethical leadership.

Managers should:

Communicate clearly and show respect when communicating with employees;

Ensure the work location is free from discrimination, harassment and bullying;

Model desired values and behaviours;

Develop a firm, fair and equitable management style;

…”

It is difficult to understand what bearing the aspirational statements of the Guide have on the issues before the Commissioner.

222. In addition to the aforementioned provisions, which were relied upon in the further amended summons, counsel for the Secretary submitted at the hearing of the appeal that the Commissioner should also have had regard to s 69 of the Government Sector Employment Act 2013 (NSW) (the GSEA Act). Relevantly for present purposes, s 69(3) provides that government sector employee rules may deal with misconduct by employees of government sector agencies. Section 69(4) provides, relevantly, that if in accordance with those rules there is a finding of misconduct by an employee, the person who exercises employer functions may terminate the employee’s employment with or without giving the employee the opportunity to resign.

Disposition

223. The primary judge concluded that a condition of the valid exercise of the Commission's jurisdiction was that the Commissioner must consider “the regulatory context”. To establish jurisdictional error, it must be demonstrated that the Commissioner was bound to take into account specific matters and that he failed to do so. The matters that a decision-maker is required to take into account are determined by the statute conferring the power or discretion to make the decision. [168]

     168. See Kirk v Industrial Relations Commission (2010) 239 CLR 531.

224. Under s 84 of the IR Act, the Commission is required to make a finding as to whether the dismissal of an employee was harsh, unconscionable or unjust. Such a finding requires a broad evaluation of the circumstances of each particular case. Section 88 specifies matters that the Commission “may, if appropriate, take into account”. That language is hardly the language of compulsion. There is certainly no reference to “the regulatory context”. A fortiori there is no reference to the Regulation, the Policy, the Award or the Guide. Rather, there is a reference in s 88(f) to “such other matters as the Commission considers relevant”. The only matter referred to in s 88 that has any remote connection with the circumstances of Mr Wattie’s case is that, by virtue of s 88(d), the Commission may take into account the nature of Mr Wattie’s duties immediately before the dismissal.

225. Section 88 clearly does not dictate the matters or considerations that the Commission is required to take into account. Clearly enough, the IR Act leaves it to the specialist industrial tribunal established under it to hear and determine unfair dismissal claims. Thus, the Commission is left to assess the considerations that the Commission considers to be relevant in determining a particular claim.

226. Nevertheless, in determining whether Mr Wattie’s dismissal was harsh, unreasonable or unjust under s 84, the Commissioner was required to have regard to the seriousness of the misconduct that gave rise to his dismissal. [169] It probably goes without saying that in assessing the seriousness of the misconduct, the Commissioner was required to have regard to the Regulation and the Policy, which were the matters identified by the primary judge as mandatory relevant considerations. [170] It might also be the case that the Commissioner was required to have regard to the Award, the Guide and the relevant provision of the GSEA Act. In that regard, there was no dispute that Mr Wattie had been guilty of misconduct. The only question was whether, having regard to the seriousness of the misconduct, dismissal was harsh, even though it was neither unreasonable nor unjust.

     169. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.

     170. Byrne v Australian Airlines (1995) 185 CLR 410 at 465.

227. While a decision-maker such as the Commissioner is required to state reasons for the decision being made, such a decision-maker is not required to mention every fact or argument relied on by a losing party. It is also not necessary for a decision-maker to expose every step in the chain of reasoning that leads to the conclusion. [171] The only question is whether the Commissioner entirely overlooked a mandatory consideration.

     171. Primary judgment at [57]-[59].

228. A fair reading of the reasons of the Commissioner makes clear that he considered the regulatory context of Mr Wattie’s employment as a correctional officer and the reasons given by the decision-maker for dismissing him. In particular, the Commissioner clearly had regard to the nature of the responsibilities of correctional officers.

229. I consider that, having regard to the comments and observations made by the Commissioner, the Commissioner had regard to all of the matters and considerations that were necessary to enable him to make a judgement as to whether the dismissal of Mr Wattie was harsh in the light of the seriousness of the misconduct of which he was found guilty. The Commissioner set out the allegations made against Mr Wattie. It is clear therefore that he had regard to the actual misconduct.

230. The Commissioner also set out the considerations relied upon by the original decision-maker in deciding to dismiss Mr Wattie. That included assertions that subjecting an inmate to undue force was incompatible with the duties and responsibilities of a correctional officer and had the effect of undermining the integrity and reputation of the government sector and public confidence in the government sector. The Commissioner stated that assaults on inmates in correctional centres by correctional officers could not be condoned nor tolerated, even in cases where there is significant provocation. He considered in detail the nature of Mr Wattie’s conduct in relation to each of the three incidents.

231. Further, the reasons of the Commissioner must be read in the light of the way in which the case against Mr Wattie was presented. The Secretary tendered a bundle of documents containing some of the material in question. Very little of the material was referred to in oral or written submissions. In circumstances where the relevant material that is said to constitute “the regulatory context” was, at best, mentioned in passing, it cannot be said that the Commissioner fell into jurisdictional error by failure to refer in terms expressly to the Regulation or the Policy. The same might also be said of the Commissioner’s failure to refer in terms to the Award, the Guide and the relevant provision of the GSEA Act (although the primary judge did not ultimately find that those aspects of the regulatory context were mandatory relevant considerations).

232. The only basis upon which the Commissioner’s decision was impugned was that it was infected by jurisdictional error. The Commissioner was not guilty of jurisdictional error. It is therefore unnecessary to consider the fourth ground of appeal, being the question of the refusal of leave to appeal by the Full Bench.

Conclusion

233. The appeal should be allowed. I agree with the orders proposed by McColl JA.

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Endnotes

Decision last updated: 08 June 2018