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

1. [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. [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. [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]

4. [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]

5. [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. [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]

7. [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]

8. [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]

9. [9]

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

10. [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

1. [11]

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

2. [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).

3. [13]

   Section 88 of the IR Act provides:

4. [14]

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

5. [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]

6. [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”.

7. [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.

8. [18]

   The Secretary first referred to s 69 of the Government Sector Employment Act 2013 (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).

9. [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.

10. [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:

11. [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:

12. [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.”

13. [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”.

14. [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]

15. [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.

16. [26]

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

17. [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]

18. [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]

19. [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

1. [30]

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

2. [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

1. [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.

2. [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.

3. [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.

4. [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]

5. [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]

6. [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]

7. [38]

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

8. [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:

9. [40]

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

10. [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]

11. [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.

12. [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.

13. [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]

14. [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]

15. [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.

16. [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.

17. [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]

18. [49]

    The Commissioner recorded Dr Chan’s opinions as follows:

19. [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]

20. [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]

21. [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]

22. [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:

23. [54]

    The Commissioner returned to each incident and assessed its character.

24. [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]

25. [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]

26. [57]

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

27. [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]

28. [59]

    Nevertheless, the Commissioner concluded:

29. [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:

30. [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]

31. [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]

32. [63]

    Nevertheless, the Commissioner said:

33. [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]

34. [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]

35. [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.

36. [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.

37. [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]

38. [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]

39. [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]

40. [71]

    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.

41. [72]

    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.

42. [73]

    The Full Bench concluded in this respect:

43. [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]

44. [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]

45. [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]

Primary judgment

1. [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]

2. [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:

3. [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.

4. [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.

5. [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]

6. [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]

7. [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]

8. [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.

9. [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.

10. [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]

11. [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]

12. [88]

    The primary judge then said:

13. [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]

14. [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]

15. [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]

16. [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:

17. [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]

18. [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]

19. [95]

    Adopting that approach, the primary judge held:

20. [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]

Grounds of appeal

1. [97]

   Mr Wattie relies on the following grounds of appeal:

   1. (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. (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. (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. (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

1. [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.

2. [99]

   Mr Wattie contended that s 88 manifests a legislative intention to the specialist industrial tribunal concerned to hear and determine unfair dismissal claims to assess considerations relevant to such cases.

3. [100]

   Mr Wattie next submitted that the “condition of the valid exercise of the Commissioner’s powers” the primary judge identified was of uncertain content and the extent of the postulated limitation on the Commission’s jurisdiction unclear.

4. [101]

   Mr Wattie contended that the consequence of the primary judge’s approach was that the validity of a decision of the Commission in every unfair dismissal case would be uncertain. He argued that such an outcome was inconsistent with a statutory scheme which was intended to confer a jurisdiction on a specialist industrial tribunal to resolve dismissal claims in a manner which was informal, efficient and fair to all parties.

5. [102]

   Finally, Mr Wattie complained that the Secretary had adopted what he described as a “shifting sands” approach before the primary judge, and in this Court, in advancing the case of errors on the Commissioner’s part not relied upon in the leave application to the Full Bench. This contention related, in particular, to the Secretary’s reliance on cl 131 of the CASR.

6. [103]

   Alternatively, Mr Wattie submitted that there was no foundation for the primary judge’s inference that the Commissioner failed to take into account the “regulatory context” of his employment. He contended that, to the extent the Secretary relied upon that statutory context before the Commissioner, that was only by way of background and to support a submission that Mr Wattie’s misconduct was inconsistent with the role and duties of a correctional officer. Mr Wattie contended that that matter was not in issue before the Commissioner and was taken into account by him at paragraphs [47], [57], [78], [92] and [101] of his reasons.

7. [104]

   Mr Wattie also argued it was not necessary for the Commissioner to expose every step of his reasoning. Rather, the question was whether his reasons supported the inference that he overlooked a mandatory consideration entirely. He submitted that the primary judge failed to adhere to the approach that the reasons of an administrative decision-maker are not to be subjected to minute analysis and criticism. He argued that on a fair reading of the Commissioner’s reasons, it was apparent he considered the context of Mr Wattie's employment, the reasons given by Assistant Commissioner Wilson for the dismissal and the nature of the responsibilities of correctional officers. He contended that the mere fact that reference to the “regulatory context” was set out in quotations in the Commissioner’s reasons did not demonstrate a failure to consider such matters.

8. [105]

   While Mr Wattie accepted that before the Commissioner the Secretary tendered a bundle of documents containing some statutory, regulatory or policy provisions, he submitted that most of those documents were neither referred to, nor relied upon, by Assistant Commissioner Wilson in deciding to dismiss Mr Wattie. Nor were they expressly referred to in any submission made to the Commissioner.

9. [106]

   In particular, Mr Wattie submitted that before the Commissioner:

10. [107]

    Mr Wattie submitted that in circumstances in which the provisions said to constitute the “regulatory context” were either not mentioned by the Secretary or referred to at best in passing, the Commissioner could not be said to have fallen into jurisdictional error by not expressly referring to each provision. Accordingly, Mr Wattie submitted that, given the way the case was run by the Secretary, there was no error (jurisdictional or otherwise) in the Commissioner’s decision.

11. [108]

    Mr Wattie submitted that the primary judge erred in engaging in a form of impermissible merits review, forming the view that the Commissioner should have attached greater weight to the seriousness of Mr Wattie’s conduct. Mr Wattie argued that the assessment of the seriousness of his conduct was a matter for the Commissioner and no jurisdictional error was established unless, in determining the application, the Commissioner neglected entirely to refer to a mandatory statutory consideration.

12. [109]

    Accordingly, Mr Wattie submitted that, even if the Commissioner was under a mandatory statutory obligation to consider the “regulatory context” of his employment, he did so adequately having regard to the manner in which the case was presented by the Secretary.

13. [110]

    Mr Wattie submitted that the primary judge erred in setting aside the decision of the Commissioner and of the Full Bench of the Commission without separately finding jurisdictional error in the approach of the Full Bench. He contended that the IR Act provides in ss 187 and 188 for an internal appeal mechanism with respect to the Commissioner’s decisions. He argued that in setting aside the Full Bench decision the primary judge circumvented the statutory appeal provisions and the limits which have been placed upon them.

14. [111]

    Mr Wattie submitted that the occasion to examine whether the Commissioner’s decision was affected by jurisdictional error did not arise unless or until it was found that the Full Bench’s refusal to grant leave to appeal was itself affected by jurisdictional error.

Respondent’s submissions

1. [112]

   The Secretary repeated the submissions made to the Commissioner, that the decision to dismiss Mr Wattie ought to be affirmed having regard to the seven matters advanced in the Commission to which the primary judge referred, [81] in addition to three additional grounds. These ten grounds (“relevant considerations”) were:

2. [113]

   The Secretary contended that:

3. [114]

   Having regard to these matters, the Secretary submitted that the primary judge’s finding that the statutory requirements the Secretary sought to rely upon on in the judicial review application had been sufficiently raised before the Commissioner and the Full Bench was open to her Honour. [82]

4. [115]

   The Secretary submitted that for the reasons identified by the primary judge (at [56], [59]) – namely, that correctional officers are centrally engaged in the obligations of the State to safeguard all persons who are in custody – the statutory context of Mr Wattie’s employment was critical to an assessment of whether his dismissal was harsh.

5. [116]

   The Secretary argued that in considering whether Mr Wattie’s dismissal was harsh, the Commissioner was required to determine whether it was disproportionate to the gravity of his misconduct. Determination of that issue could only be undertaken by reference to the statutory context of his employment. The Secretary submitted that the Commissioner failed to consider the significance of Mr Wattie’s conduct and its significance to CSNSW.

6. [117]

   The Secretary submits that the contention that mandatory considerations may arise in the context of particular statutory employment is not inconsistent with the proposition that under s 88(f) of the IR Act the Commission may consider “such other matters as [it] considers relevant.”

7. [118]

   This was because the mandatory consideration of matters said to arise from the statutory context concerning Mr Wattie’s employment in the public service was consistent with the power to take into account the nature and duties of Mr Wattie immediately before dismissal and the likely nature of those duties if Mr Wattie was to be re-employed (IR Act, s 88(d)), and the nature of any reason given for the dismissal and whether it had a basis in fact (IR Act, s 88(b)).

8. [119]

   The Secretary submitted that having regard to the material before the primary judge, including the written and oral submissions of the Secretary before the Commissioner and the Full Bench, it was open to her Honour to find that the regulatory context had been sufficiently raised by the Secretary but was not considered by the Commissioner in deciding whether the dismissal was, while neither unjust nor unreasonable, harsh.

9. [120]

   The Secretary contended that to the extent that a fair reading of his reasons revealed, the Commissioner addressed the regulatory context as follows:

10. [121]

    The Secretary submitted that the primary judge correctly applied the test as being that the Commissioner’s reasons should have demonstrated that he had considered the substance of the regulatory context, a matter which had to be demonstrated in his reasons. [83]

11. [122]

    The Secretary argued that, at best, the Commissioner referred only in very general terms in paragraphs [78] and [92] of his reasons to relevant considerations (a) and (b) in determining that Mr Wattie’s dismissal was neither unreasonable nor unjust. The Secretary also complained that the Commissioner made only scant or incomplete reference to relevant considerations (a) and (i) in dealing with the “harsh” issue, and, too, made only scant reference (at [101]) to the policies concerning the standards of conduct expected in Mr Wattie’s workplace.

12. [123]

    The Secretary submitted that, aside from the generalised observation that assaults “cannot be condoned”, the Commissioner’s reasons did not disclose that he had considered the substance of some of the relevant considerations or the statutory context of Mr Wattie’s employment and the standards of conduct expected in his workplace. The Secretary contended that the absence of reference to eight of the ten relevant considerations suggested none were taken into consideration in assessing the gravity of Mr Wattie’s misconduct. [84]

13. [124]

    The Secretary noted that the primary judge found that the Commissioner was required, when assessing the seriousness of Mr Wattie’s misconduct, to consider the express prohibitions on the use of force against inmates (cl 131 of the CASR) and the mandatory obligation to report the use of such force, however minor (section 13.7 of the OPM). In addition, her Honour found that the Commissioner’s reference to assaults on inmates being a matter which “cannot be condoned” and to “relevant CSNSW policies” was insufficient consideration of the substance of the regulatory context, for the reasons articulated by her Honour. [85] The Secretary submitted that these findings were open to her Honour and did not constitute an impermissible approach to the review of the reasons of the Commissioner.

14. [125]

    The Secretary notes that in refusing leave to appeal, the Full Bench did not accept, as Adamson J did, that the Commissioner’s decision was affected by jurisdictional error. The Secretary submits that as the intermediate appellate court the Full Bench erroneously failed to identify error, declined to grant leave and thereby left standing the Commissioner’s decision although affected by jurisdictional error. In those circumstances, the correct analysis, the Secretary submitted, is that the decision of the Commissioner “infected” the decision of the Full Bench.

Consideration

1. [126]

   Before turning to the grounds of appeal, it is appropriate to make some observations about the approach to be taken by a court exercising the judicial review jurisdiction pursuant to s 69 of the Supreme Court Act.

2. [127]

   The “merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.” [86] Thus, the court’s supervisory role should not become a review of the merits of an exercise of discretionary power. [87] As is frequently emphasised, a court “should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.” [88]

3. [128]

   Accordingly, there are practical restraints on judicial review. [89] Judicial review is not a basis for undertaking a complete re-evaluation of the findings of fact or a reconsideration of the merits of the case. [90] It is concerned with whether the decision-maker’s decision was one which that person was authorised to make, rather than “an appellate procedure enabling either a general review of the … decision … or a substitution of the … decision which the … court thinks should have been made.” [91] Thus, “‘mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions’ is not a sufficient reason for overturning a judicial decision upon a review.” [92]

4. [129]

   Rather, in order to demonstrate jurisdictional error, it is necessary to demonstrate error on the decision-maker’s part. Such error may be identified, for example, in a failure properly to construe the statute investing, in this case, the Commissioner with jurisdiction, such as to lead the Commissioner to misunderstand the nature of the jurisdiction he was exercising. It may also be identified if, in giving a decision in exercise of his jurisdiction or authority, the Commissioner applied “a wrong and inadmissible test”, misconceived his duty, failed to apply himself to the question the law prescribed, or misunderstood the nature of the opinion he had to form. Upon identification of such error, a decision will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised. [93]

5. [130]

   In considering the reasons of the Commissioner, it should be borne in mind that, like industrial proceedings in the federal sphere, the scheme of this State’s industrial relations legislation, in particular the privative clause in s 179 of the IR Act, demonstrates a legislative intention:

6. [131]

   As French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said in Kirk, s 179 of the IR Act is “important in considering whether the decisions of particular inferior courts or tribunals are intended to be final” and “bear[s] directly upon the second of the premises that underpin the decision in Craig (that finality of decision is a virtue)”. [95]

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

1. [132]

   Failure to take into account relevant considerations constitutes jurisdictional error in the nature of “constructive failure to exercise jurisdiction”. [96] Such a decision is beyond power. [97] Grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts. [98]

2. [133]

   The essential principles for identifying the factors a decision-maker is required to take into consideration, and related principles concerning determining whether that has been done and the consequences of failing to do so, are uncontroversial.

3. [134]

   First, such factors are determined by the construction of the statute conferring the decision-making power. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors the decision-maker is bound to consider are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. [99]

4. [135]

   This is the case even where a statute confers a discretion which is in terms unconfined. [100] The reason an apparently unconfined statutory discretion is susceptible to judicial review is that “[t]he legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably”. [101] A decision which lacks an evident and intelligible justification, may be found to be unreasonable, [102] and susceptible to judicial review as demonstrating error in the exercise of the discretionary power.

5. [136]

   Secondly, not every consideration a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. [103] A factor might be so insignificant that the failure to take it into account could not have materially affected the decision. [104] The court should determine whether, having “regard to the full statutory context and to the object that the legislation seeks to achieve … the legislature intended that the presence or absence of the factual condition should invalidate an attempted exercise of power”. [105]

6. [137]

   Thirdly, it is not the function of the court to substitute its own decision for that of the decision-maker by exercising a discretion which the legislature has vested in that person. Rather, its role is to set limits on the exercise of the discretion, such that a decision made within those boundaries cannot be impugned. Accordingly, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. [106]

7. [138]

   Fourthly, the fact that failure to take a relevant consideration into account in the exercise of a power is a ground of judicial review, does not, however, mean “that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account.” [107] “The fact that [a party] chooses to refer to particular matters does not convert them into relevant considerations in the administrative law sense from which other consequences might flow. That is determined by reference to the statute.” [108]

8. [139]

   That does not mean parties may not point to matters they contend were required to be taken into consideration. Nevertheless, even taking such submissions into account, where relevant considerations are not specified, “it is largely for the decision-maker … to determine which matters the decision-maker regards as relevant and the comparative importance to be accorded to such matters.” [109]

9. [140]

   Fifthly, the level of particularity with which a matter is identified for the purpose of applying the principles as to mandatory relevant considerations may be significant. For a complaint about such matters to succeed, “there must be found in the legislation an implied obligation on the [decision-maker] to examine and investigate the contention at the level of particularity involved in the [complainant’s] submission.” [110]

10. [141]

    Despite the heading to s 88 of the IR Act (Matters to be considered in determining a claim), it was common ground between the parties, that s 88 conferred an unfettered discretion on the Commissioner in considering Mr Wattie’s unfair dismissal claim. That was the view the primary judge effectively took. [111] In my view, it was correct. It is apparent from the text of s 88 that the word “may” in the chapeau to s 88 is used to indicate that the matters enumerated may be taken into account by the decision-maker at that person’s discretion. [112] This is reinforced by the words “if appropriate”, emphasising that the decision-maker is not obliged to take all, or indeed any, of the s 88 matters into account in exercising the unfair dismissal jurisdiction. Although the heading to s 88, while not taken to be part of the IR Act, could be used in the interpretation of s 88, [113] in my view that should not be done having regard to desirability of persons being able to rely on the ordinary meaning conveyed by the text. [114]

11. [142]

    The breadth of the discretion reposed in the Commission as to which factors are relevant to the question whether a dismissal was harsh, unreasonable or unjust is also emphasised by s 88(f), enabling the Commission to take into account “such other matters as the Commission considers relevant.” As Heydon J said in Commissioner of Police (NSW) v Eaton, liberty not to take account of a relevant matter “gives the Commission fluidity” and a “very free flowing” role. [115] There is no reason to read down the breadth of that expression. [116]

12. [143]

    Nevertheless, where there is a provision such as IR Act s 88(f), enabling the Commission to take into account “such other matters as the Commission considers relevant”, applying the ejusdem generis principle requires in my view, that the “other matters” must “encompass only matters of the same kind as those which precede” it. [117]

13. [144]

    Mr Wattie complained in his written submissions, however, that the content of the concept of the “regulatory context” as a mandatory relevant consideration as identified by the primary judge was not self-evident from the primary judgment, but accepted in the course of argument that that expression encapsulated the matters her Honour set out under that heading in her reasons. [118]

14. [145]

    In determining whether it can be discerned from the subject-matter, scope and purpose of the IR Act, that the Commissioner was obliged to take any particular matters into consideration, it is necessary to bear in mind that the IR Act is a general statute, intended to “provide a framework for the conduct of industrial relations that is fair and just”, [119] and is not framed with any particular industry in mind. [120]

15. [146]

    Nevertheless, in my view, it can be implied from the fact that s 88 is concerned with whether an employee’s dismissal was harsh, unreasonable or unjust, that the Commission was required to have regard to the regulatory context, as the primary judge described it, of Mr Wattie’s employment.

16. [147]

    In exercising the Commission’s s 84 jurisdiction in relation to whether a dismissal is harsh, unreasonable or unjust, as the primary judge recognised, the Commission must consider matters such as those identified in Byrne. [121] These could include whether “one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

17. [148]

    Thus, the Commissioner could not determine the s 84 issue without considering the employment proscriptions placed on Mr Wattie acting in the manner impugned in each incident of misconduct, the gravity of the misconduct involved in each incident, as well as weighing those matters against the mitigating circumstances upon which Mr Wattie relied. Those matters in this case, to the extent the Secretary continues to rely upon them, in my view, were cl 131 of the CASR and the Using Force on Inmates policy.

18. [149]

    It might be accepted, as the primary judge said, that cl 131 reflects a concern to limit the State’s exposure to tortious claims consequent upon unreasonable use of force by correctional officers on inmates. [122] However, to the extent it may be inferred from her Honour’s statement that “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”, that the Commissioner failed to have regard to such matters, I cannot, with respect, agree. Such an issue may arise as part of the issue whether a dismissal was either unjust or unreasonable. In this case, it was addressed by the Commissioner’s acceptance of Dr Chan’s evidence that Mr Wattie “would not pose any significant risk in reoffending” and, too, of the “reliable medical evidence that Mr Wattie’s conduct was caused by or contributed to by mental illness that he was suffering at the time of the incidents which led to his dismissal.” [123]

19. [150]

    Bearing in mind that the considerations that are, or are not, relevant to the decision-maker’s task are to be identified primarily, perhaps even entirely, by reference to the statute governing the decision-making task, rather than the particular facts of the case, [124] the more pejorative, or rhetorical, matters to which Assistant Commissioner Wilson referred in the disciplinary correspondence such as the effect of Mr Wattie’s conduct upon the integrity and reputation of, and public confidence in, the government sector cannot, in my view, be inferred from the subject matter, scope and purpose of the IR Act to be mandatory relevant considerations. The IR Act is not concerned with the reputation of the government. Its focus is on a “fair and just” system of industrial relations. At all times, the s 84 question the Commissioner was empowered to determine focussed upon the nature and gravity of Mr Wattie’s conduct and the mitigating circumstances identified in determining in a balancing exercise whether his dismissal was harsh, unreasonable or unjust.

Ground 2: whether the Commissioner failed to consider the statutory context

1. [151]

   “Relevant considerations” and “taking into account” are dual concepts. [125] The former concept, as used in Peko-Wallsend and like authorities, refers to a matter the decision-maker is bound to take into account whether by reason of the express terms of the power-conferring statute or by implication from its subject matter, scope and purpose. [126] The latter concept “covers a spectrum of conduct” considered in order to determine what the decision-maker has taken into consideration. [127]

2. [152]

   While, as Basten JA explained in Lo v CCSR, [128] “[i]f a decision-maker who gives reasons for a decision makes no reference to a particular matter, it may be inferred that he or she disregarded it, either deliberately or through inadvertence”, such an inference should not too readily be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. [129] Indeed, it has been said that “[i]t is a mistake to conclude simply from the fact that a Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped [the Tribunal’s] attention.” [130] The Tribunal is not expected to set out every consideration which passes through the decision-maker’s mind, although some, and usually the most significant, will be expressly dealt with. [131]

3. [153]

   In considering whether the Commissioner took the relevant regulatory context into account, it is necessary to proceed, from the premise that “[t]o expose all findings of fact, or the generality of them, to judicial review would expose the steps in administrative decision-making to comprehensive review by the courts and thus bring about a radical change in the relationship between the executive and judicial branches of government”. [132] Thus, administrative decisions should not be “construed minutely and finely with an eye keenly attuned to the perception of error.” [133]

4. [154]

   On the other hand, the requirement of consideration is not satisfied by formalistic reference. [134] Taking relevant matters into consideration calls for more than simply adverting to them. 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”. [135] In determining whether that standard has been achieved, it is necessary both to read the challenged reasons by having regard to the way the case was argued and the context of the reasons read “fairly and as a whole”. [136]

5. [155]

   In considering whether Commissioner Murphy fell into error in determining that Mr Wattie’s dismissal was harsh, it is relevant to consider what that decision involved and the context in which the Commissioner came to determine it. I have described the decisional context when dealing with the first ground of appeal. It suffices to emphasise that the Commissioner was acting as an administrative, not a judicial, decision-maker and was required to act as quickly as is practicable, [137] and was not bound to act in a formal manner. The Commissioner was to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. [138]

6. [156]

   I have already referred to the tripartite test posed by s 84 of the IR Act as to whether an employee’s dismissal was “harsh, unreasonable or unjust” as explained in Byrne. [139] In addition to the matters there identified, in considering the possibility that dismissal might be “harsh”, (although not unjust or unreasonable), it is necessary not only to identify any misconduct on the employee’s part said to have justified the termination, but also to “weigh in the balance any ‘mitigating circumstances’ … including length of prior employment, the employment record and favourable character considerations”. [140] It is in this respect that the primary judge held that the Commissioner’s reasons had been found wanting and as having suffered from the same deficiency identified in PSA. [141]

7. [157]

   I disagree, with respect, with her Honour’s conclusion. In PSA, [142] Basten JA identified the Full Bench’s error as failing to weigh any mitigating circumstances in the balance against the employee’s serious misconduct, including the length of prior employment, the employment record and favourable character considerations and the fact that, in all the circumstances, “termination of employment ‘may be … disproportionate to the gravity of the misconduct in respect of which the employer acted.’” His Honour concluded that absence in the Full Bench decisions of any reference to the essential exercise of identifying the element of misconduct and assessing its seriousness and weighing it against the consequence of proposed dismissal indicated that exercise was probably not undertaken. [143]

8. [158]

   It is clear the Commissioner was alive to what he had to consider when determining whether Mr Wattie’s termination was harsh. As I have explained, the Commissioner set out verbatim the critical parts of Assistant Commissioner Wilson’s disciplinary letters to Mr Wattie. He analysed each incident of misconduct, including its gravity, and, notwithstanding that he reached different factual conclusions in some respects to those Assistant Commissioner Wilson had reached, he recognised that in each case Mr Wattie’s guilty plea had acknowledged his commission of a criminal offence. [144] Moreover, he referred to Kaplan, [145] where the principles I have outlined concerning the issue of harshness were effectively summarised by the Full Bench of the Commission.

9. [159]

   Having done so, the Commissioner weighed in the balance the matters of mitigation upon which Mr Wattie relied. [146] In this context, he referred to, and distinguished Corrective Services NSW v Danwer, [147] a case on which the Secretary had relied, but one in which there was no “reliable medical evidence that the respondent’s conduct had been caused or contributed to by mental or physical illness that may have been a factor to be taken into account in mitigation.” [148] As the Full Bench said on the leave application, the Commissioner’s reasons demonstrated that he had carried out “the exercise that orthodox industrial jurisprudence requires of a decisionmaker” dealing with a s 84 application. He weighed the seriousness of the misconduct he had already identified and evaluated it against the mitigating factors. [149]

10. [160]

    The Commissioner framed his consideration of the question concerning whether Mr Wattie’s dismissal was harsh, unreasonable or unjust in recognition of the proposition that “[a]ssaults on inmates in correctional centres by correctional officers cannot be condoned nor tolerated, even in cases where there is significant provocation.” [150]

11. [161]

    As the Secretary conceded in oral submissions, that passage of the Commissioner’s reasons encapsulated the prohibition contained in cl 131 of the CASR, upon the absence of reference to which the primary judge placed great emphasis. As will be recalled, the Using Force against Inmates policy complemented cl 131, in the sense, as I read it, that it sought to explain cl 131’s practical operation. However, the Secretary contended that while the Commissioner had recognised the existence of the statutory scheme, he had not given it proper or sufficient consideration. In particular, the Secretary argued that the Commissioner had not analysed the significance of cl 131 in the context before him.

12. [162]

    In my view, the Secretary’s submission should be rejected. It is plain that the Commissioner considered cl 131 of the CASR, albeit that he did not refer to it in terms. The essence of cl 131 was to prescribe as an overriding principle that a correctional officer may use no more force than was reasonably necessary in the circumstances, and that the infliction of injury on the inmate was to be avoided if at all possible.

13. [163]

    As such, cl 131 did not require, nor lend itself to, any fine analysis. It was sufficiently encapsulated, in my view, in the Commissioner’s recognition, prior to balancing the incidents of misconduct against the mitigation circumstances, that assaults on inmates in correctional centres were intolerable. In addition, as part of the balancing exercise, the Commissioner noted in respect of each incident whether or not the inmate had been injured, another matter referred to in cl 131. In respect of the only (that is, the third) incident in which injuries had occurred, the Commissioner noted that they were “of a relatively minor nature”.

14. [164]

    Insofar as the Secretary’s submission concerning that the Commissioner’s consideration of the statutory scheme might be seen as a complaint that he had failed to give that scheme proper, genuine and realistic consideration, it would do well to recall, that resort to such propositions is “apt to encourage a slide into impermissible merit review. [151]

15. [165]

    It was not, with respect to the primary judge, necessary that the Commissioner recite cl 131 of the CASR or the Using Force against Inmates policy verbatim. It was sufficient that it was apparent from his reasons that he had considered their significance to the issue of unfair dismissal. In addition to the Commissioner’s reference to the relevant substance of cl 131 and the Using Force against Inmates policy in paragraph [78], his reference in paragraph [101] to the fact that “any future use of force by [Mr Wattie], which is outside the relevant CSNSW policies will almost certainly result in his dismissal”, sufficiently demonstrated, in my view, his advertence to the regulatory context.

16. [166]

    Accordingly, in my view, when the Commissioner’s reasons are read fairly and as whole, it is apparent that he did, as explained in PSA, consider the issues by reference to the proscription on using force against inmates as set out in cl 131 and the Using Force on Inmates policy, having regard to the gravity of each incident of misconduct in which Mr Wattie had engaged. Having considered those issues the Commissioner balanced them against the mitigating circumstances upon which Mr Wattie relied.

17. [167]

    It is apparent from the Commissioner’s reasons that he understood the significance of the proscription about the use of force in correctional institutions and the implications of such conduct on the part of correctional officers for their dismissal and that he evaluated that issue in a manner which indicated he took those matters into consideration in determining Mr Wattie’s application.

18. [168]

    In my view, with respect, the primary judge erred in concluding that the Commissioner failed to address the regulatory context because he did not expressly consider:

19. [169]

    An implication that the unfettered discretion s 88 reposed in the Commissioner obliged him to consider matters expressed at such a high level of generality would detract from him considering the particular circumstances of each case.

20. [170]

    The primary judge erred, in my view, with respect, in studying the Commissioner’s reasons “zealously in the pursuit of error”, rather than in the manner review of such decisions should be undertaken. [153]

21. [171]

    In my view, when the Commissioner’s reasons are read fairly and as a whole, it is apparent that he understood the issues, the regulatory context and the significance of the decision to be made about them, and undertook a process of evaluation, sufficient to warrant the description of the regulatory context being taken into consideration. The primary judge erred, with respect, in finding otherwise.

22. [172]

    Insofar as the Secretary complains in this Court that the Commissioner failed to have regard to the “relevant considerations”, it might be observed that to the extent these did not find reflection in the “regulatory context” (which I have held the Commissioner did sufficiently consider), they were complaints about the weight the Commissioner placed upon matters. These were matters for him.

23. [173]

    As Emmett AJA said in Liverpool City Council v Moorebank Recyclers Pty Ltd, “[i]t is insufficient to point to an error asserted to have occurred in the weighing of relevant matters. If matters to which regard is had do not fall within the category of those prohibited by relevant statutory provisions, they will be characterised as either mandatory or permissive considerations and a complaint as to the weight accorded to them will not constitute an error of law.” [154]

24. [174]

    Finally, in this context I note that, as I have said, in my view, it is not open to the Secretary to rely in this court on aspects of the regulatory context not found by the primary judge to be mandatory relevant considerations absent a notice of contention. I would add, however, that in my view the further matters to which the Secretary sought to refer did not take the critical issue, being the proscription on the use of force on inmates, further. Constant repetition at varying degrees of particularity, refinement or focus did not add to the basic principle concerning the use of force by correctional officers which it is clear the Commissioner considered as part of his determination.

Ground 3: conduct of the Secretary’s case before the Commission

1. [175]

   Having regard to the conclusions I have reached in respect of the first two grounds of appeal, the third ground is somewhat academic. Further, as Emmett AJA observed in the course of the hearing, if the matters the Secretary relies upon were mandatory relevant considerations, the Commissioner was required to have regard to them whether or not the Secretary asked him to do so.

2. [176]

   However, the fact that matters were not relied upon before the Commissioner may have been grounds for the primary judge exercising the discretion to grant relief by way of judicial review adversely to the Secretary. [155]

3. [177]

   Mr Wattie’s complaint before the primary judge was that the Secretary’s case concerning mandatory relevant considerations as relied upon in the judicial review summons was not advanced before the Commission. The primary judge did not expressly deal with that contention. Rather, her Honour held that the Secretary “sufficiently raised” before the Commissioner the matters raised before her, in substance by including copies of cl 131 of the CASR and the Using Force against Inmates policy in a bundle of materials handed to the Commissioner. [156]

4. [178]

   I disagree with respect with the primary judge’s decision on this point. The Secretary’s case about mandatory relevant considerations was not put to the Commissioner. As I have said, before the Commissioner, the Secretary referred expressly in oral submissions to s 69 of the GSEA and r 40 as part of the “governing legislative scheme”. Otherwise there was no reference in the Secretary’s oral submissions to any express statutory provision, regulation or policy. Other statutory materials were referred to in written submissions as “relevant statutory provisions”, without more. It was not submitted that it was mandatory that the Commissioner consider any of this material in determining the case.

5. [179]

   Although, as I have held, the Commissioner sufficiently referred to the gist of the matters I, and the primary judge, have found to be mandatory relevant considerations, had the Secretary’s case in this respect been expressly advanced before him, no doubt he would have been more concerned to spell out his conclusions.

6. [180]

   Bearing in mind that the Commissioner’s decision was the operative one (rather than that of the Full Bench refusing leave to appeal), in my view, the primary judge should have declined to permit the Secretary to advance the mandatory relevant considerations case which was the only matter relied upon in the judicial review summons. [157]

Ground 4: Full Bench decision

1. [181]

   The fourth ground of appeal challenged the primary judge’s conclusion that if the Commissioner fell into jurisdictional error, it was open to her Honour to find the Full Bench’s decision refusing leave to appeal was similarly affected, without considering whether the Full Bench itself fell into like error. Although I am of the view that the Commissioner’s decision should not have been set aside, I should explain briefly why, had I been differently disposed, I would have agreed with the primary judge’s conclusion that once her Honour found the Commissioner’s reasons were affected by jurisdictional error, it was unnecessary to find like error in the Full Bench’s decision refusing leave to appeal.

2. [182]

   As the primary judge said, [158] where a party seeks to challenge a decision, it must challenge the operative decision. In the context of judicial proceedings, “the natural, obvious and prima-facie meaning of the word ‘decision’ is decision of the suit by the Court”. [159] In the context of judicial review of administrative decisions, and subject to the statutory context, a reviewable “decision” will “generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration.” [160]

3. [183]

   Thus, if a party has appealed against a decision, generally, the party will not be permitted to seek relief in the nature of prerogative relief against the original decision, since it is the decision on appeal that is operative. [161]

4. [184]

   As French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held in Kirk, [162] in that case, because an order in the nature of certiorari could, and should, have been directed to the Industrial Court for jurisdictional error in respect of its decisions at first instance, the orders subsequently made by the Full Bench of the Industrial Court should also be quashed. [163] This was because, as Kirby J explained in Ruddock v Taylor, [164] where a writ of certiorari issues to quash an administrative decision, it operates from the date of the decision itself with the result that the impugned decision has no legal effect and, in the eye of the law, is void ab initio.

5. [185]

   Like reasoning applied in this case. As both parties ultimately accepted, where the Full Bench only refused leave to appeal, the “operative” decision, or that which decided the suit, was that of the Commissioner. Both for that reason, and because on the primary judge’s reasoning, the Commissioner’s decision was 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.

6. [186]

   However, had the Full Bench’s decision been the operative one, it would do well to bear in mind that the Supreme Court could not intervene “so long as the Full Bench addressed itself to the right question, did not misunderstand the nature of the opinion it was required to form, or reach a conclusion which was manifestly unreasonable or otherwise beyond the limits of power”. [165]

Conclusion

1. [187]

   Accordingly, in my view the primary judge erred in concluding that the Secretary had demonstrated the Commissioner’s decision was tainted by jurisdictional error because he 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. [166]

Orders

1. [188]

   I propose the following orders:

   1. (1)

      Grant leave to appeal;

   2. (2)

      Direct that the notice of appeal filed on 20 December 2017 be treated as validly filed on that date;

   3. (3)

      Allow the appeal;

   4. (4)

      Set aside the judgment and orders (2) to (5) of the Court below made on 30 November 2017;

   5. (5)

      In lieu thereof, dismiss the amended summons with costs;

   6. (6)

      Respondent to pay the appellant’s costs of the proceedings in this Court.

2. [189]

   MACFARLAN JA: I agree with the judgments of McColl JA and Emmett AJA.

3. [190]

   EMMETT AJA: The question in this appeal is whether the respondent, the Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (the Secretary), is entitled to relief under s 69 of the Supreme Court Act 1970 (NSW) (the Supreme Court Act) in relation to a decision of the Industrial Relations Commission of New South Wales (the Commission). The decision was made by Commissioner Murphy (the Commissioner) on 11 October 2016, and on 28 February 2017 the Full Bench of the Commission refused leave to appeal from the Commissioner’s decision. The proceedings in the Commission arose out of an application by the appellant, Mr Jason Wattie, in relation to his dismissal, with effect from 13 May 2016, from his position as a Senior Correctional Officer with the Department of Corrective Services (Corrective Services NSW).

Statutory framework

1. [191]

   Following his dismissal, Mr Wattie applied for reinstatement under s 84 of the Industrial Relations Act 1996 (NSW) (the IR Act). Section 84 of the IR Act provides that 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 Part 6 of the IR Act, which deals with “Unfair Dismissals”. An application under Part 6 must be made not later than 21 days after the dismissal of the employee. Under s 86, the Commission must endeavour, by all means it considers proper and necessary, to settle the applicant’s claim by conciliation. Under s 87, when, in the opinion of the Commission, all reasonable attempts to settle the applicant’s claim by conciliation have been made but have been unsuccessful, the Commission is to determine the claim by making an order under s 89.

2. [192]

   Under s 88 of the IR Act, in determining the applicant’s claim, the Commission may, if appropriate, take into account:

   1. (1)

      whether a reason for the dismissal was given to the applicant;

   2. (2)

      whether a warning of unsatisfactory performance was given before the dismissal;

   3. (3)

      the nature of the duties of the applicant immediately before the dismissal;

   4. (4)

      whether or not the applicant requested reinstatement or re-employment with the employer; and

   5. (5)

      such other matters as the Commission considers relevant.

3. [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

1. [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.

2. [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.

3. [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

1. [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.

2. [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.

3. [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.

4. [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

1. [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.

2. [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:

3. [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]

Decision of the Primary Judge

1. [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:

2. [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.

3. [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.

4. [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.

5. [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.

6. [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.

7. [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.

8. [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.

9. [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.

10. [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

1. [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.

2. [215]

   The grounds of appeal may be restated as follows:

   1. (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. (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. (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. (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”

1. [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.

2. [217]

   Clause 131 of the Regulation relevantly provided as follows:

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:

4. [219]

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

5. [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”:

6. [221]

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

7. [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

1. [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]

2. [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.

3. [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.

4. [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.

5. [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.

6. [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.

7. [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.

8. [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.

9. [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).

10. [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

1. [233]

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