Fiona Hall and Department of Justice, Victoria
[1994] IRCA 160
•13 December 1994
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 889 of 1994
B E T W E E N :
FIONA HALL
Applicant
AND
DEPARTMENT OF JUSTICE, VICTORIA
(CORRECTIONAL SERVICES DIVISION)
Respondent
Before: Judicial Registrar Chancellor
Place: Melbourne
Date: 13 December 1994
REASONS FOR JUDGMENT (EX TEMPORE)
This is an application by Fiona Hall pursuant to section 170EA of the Industrial Relations Act in respect to the termination of her employment by the Department of Justice.
The applicant is aged 26 years and commenced employment with the Office of Corrections in 1989. She underwent the standard 12-week training course at Watsonia and then commenced at the Fairlea Women's Prison. In December 1991 she transferred to Pentridge Prison where she spent most of her time in B and B transit divisions and for approximately 3 months was an acting senior prison officer in S unit.
In early 1994 she was approached by Governor Nash to join the Endeavour Special Unit. She had obviously performed well in her work and the governor felt she had the ability to become a good senior officer. Initially this unit was staffed by senior prison officers but apparently under the unit management guidelines which were being introduced throughout the prison system it was felt that lower ranking officers could cope with the duties and develop scope and experience.
The ESU houses prisoners with special needs, generally because they needed protection because of the nature of their crimes and/or with particular physical problems. For example, when Ms Hall commenced in the unit it contained child molesters, a revenge rapist, a deaf and dumb prisoner convicted of incest, and an epileptic. Unit management meant the prison officers were involved in day-to-day security and control of prisoners together with welfare type involvement. Ms Hall did not receive any particular or additional training prior to moving into the ESU. She showed particular initiative in undertaking a sign language course in her own time so that she could assist the deaf and dumb prisoner.
Most unfortunately she developed a relationship with one of the prisoners for whom she was responsible in the ESU, one Jason Fitzgerald. In her signed statement, a letter to the Department, and at a subsequent Inquiry she made the following admissions:
After about three weeks in the ESU she had feelings that she knew she should not have for Jason;
at a later stage he stepped forward and kissed her; she recalled saying:
“I am going to regret this for the rest of my life.”
it became a semi-regular occurrence for them to kiss and cuddle;
Jason began writing Ms Hall love letters and poems and eventually wrote about 30 in all;
Ms Hall did not know what to do with the letters and could not throw them out in the rubbish in the prison because she was sure someone would find them; she began trafficking the letters out of the prison through the main security gate where she was rarely checked;
she was scared that Jason would tell someone and tried to keep him happy by taking his letters and taking them out until she could transfer out;
Ms Hall wrote two letters to Jason at home and trafficked them into the prison to give them to Jason; she wrote a poem to him in the ESU;
she remembered giving Jason her home phone number and although she could not remember giving him her home address she must have;
she found herself in a situation that she did not know how to get out of;
she knew she was doing something wrong in taking the letters out but she got stuck into doing it again and again; it was something that she had been told not to do.
It was also clear that during her training and on-going work that she was warned in general terms of the dangers of becoming too close to prisoners and that prison officers were not to let it happen.
Based on those admissions and the evidence called before me I am satisfied that a fairly significant emotional relationship had developed between Ms Hall and Jason Fitzgerald. Fortunately, there was no evidence to suggest that apart from the trafficking of personal letters an actual breach of security occurred, but obviously the potential for such a breach was ever present and became greater the longer the relationship continued.
Immediately upon the prison governor advising Ms Hall that he had become aware of the extent of her relationship, she offered to come into the prison where she made full admissions, expressed relief that the matter was over, and expressed immediate remorse for her actions.
The Department then followed the procedure set out in the Public Sector Management Act and Regulations of advising the applicant of charges in writing and giving written notice of Inquiry. The charges can be paraphrased as follows:
Ms Hall associated with a prisoner other than in the course of her normal duties and without written authority;
she took or sent or attempted to take or send letters into or out of the prison without being authorised to do so.
In response to that notification Ms Hall wrote to the Department to inform it that she intended pleading guilty to both of the charges. The Inquiry was conducted by Mr Paul Delphine, the assistant general manager, operations, of the Department of Justice, and in view of the guilty pleas proceeded as a hearing as to the appropriate penalty. Following the hearing the penalty imposed with respect to each of the charges was dismissal from employment and Ms Hall was so advised at the Inquiry and this was confirmed by the Department in writing.
It seems clear that the procedures outlined in the Public Sector Act and Regulations were all complied with. Ms Hall's employment was terminated as of 14 June 1994.
The Department argued that Ms Hall's behaviour constituted a valid reason for termination in that she had:
Breached her duty of care toward the prisoner;
breached the trust placed in her both in entering into a relationship with a prisoner and trafficking letters in and out of prison;
breached the security of the prison by trafficking letters in and out of the prison and putting both herself and other officers and prisoners at risk because of her close relationship and therefore compromised the operational requirements of the prison;
breached the regulations controlling the behaviour and discipline of prison officers.
The applicant accepted only that the trafficking of letters constituted a valid reason for termination but in my opinion all of the above matters represented a valid reason in terms of both conduct and the operational requirements of the prison as they were all serious matters.
The applicant relied on section 170DE(2) alleging that the termination was harsh, unjust or unreasonable. Essentially the applicant has submitted that although the Inquiry was conducted in accordance with the Act and regulations the Department failed to fully investigate the matter, failed to give the applicant an adequate opportunity to be heard, took into account irrelevant matters in reaching its decision, and failed to take into account many relevant matters thereby denying the applicant a fair and just hearing.
I note that in Bostik (Australia) Pty Limited v Gorgevski (No. 1) (1992) 36 FCR at 20, at page 35 Gray J said:
“An employer genuinely investigating an allegation of misconduct or neglect of duty or some other act or omission which might provide a ground for dismissal is required to carry out a proper investigation and not merely to go through the motions. The employer is required to ascertain whether there are any mitigating factors either associated with the alleged ground for dismissal or arising from the employee's past record and future prospects.”
In my opinion the Department has failed to adequately investigate this matter, in particular in relation to the question of mitigation. It appears that the only statements taken were from Ms Hall and the prisoner, Jason Fitzgerald. This merely established that the acts and matters complained of actually occurred. Given the fact that this case involves a young and relatively inexperienced female officer placed in a special unit with prisoners having special needs, and given that only senior prison officers were previously placed in the particular unit, it is my opinion that a full investigation into the applicant's training for the particular task and her supervision in that task should have been undertaken.
Further, the evidence indicates that perhaps as early as late January and certainly by early March senior officers were aware of a potential problem. Further investigation ought to have been taken into the nature and extent of any counselling and/or warnings given to the applicant and into what assistance, if any, was available to her when her problem was coming to the notice of other officers and prisoners and, indeed, to the applicant herself.
The evidence given by the applicant suggested deficiencies in training, supervision, counselling and the availability of assistance. Evidence given on behalf of the respondent suggested that general unit management training and supervision was sufficient. Evidence from Senior Officer Barnes and Governor Small suggested that counselling had occurred, although in my view this was so vague and non-specific that it may have been of little use.
It is true that at least two welfare agencies existed, one within and one outside the prison, and that the governors felt that they had an open door policy. However it seems that in relation to a problem of this type, which occurred recently in Victoria and apparently occurs within prisons throughout the world, that very specific guidelines need to be in place.
In any case a full and proper investigation would have dealt with these issues. In my view the investigation should also have taken account of the applicant's past work record and achievements and her future potential.
In relation to the Inquiry itself the applicant alleged that she was not made fully and clearly aware as to her right, if any, to legal representation, and alleged that she was not adequately able to present her case.
In the telephone call of 5 May 1994 Ms Hall was advised that she was likely to be charged and that she was to be placed on the main gate pending investigation. At some stage she asked one of the governors, probably Governor Millson, if she should get a solicitor. His reply was that the Department will not have one. The letter advising her of the notice of Inquiry outlined section 37(6) and 37(6A) of the Public Sector Act in relation to her entitlement to representation.
Given that the Department had indicated it would not have legal representation, and given section 37(6A) which says:
“Unless in the opinion of the person conducting the Inquiry special circumstances exist -”
I can see how the applicant could have formed the view that she was not entitled to legal representation unless Mr Delphine specifically gave her that option. In my opinion the Act is somewhat ambiguous. It is my view that the letter advising the employee of the charges and Inquiry should also include details of the range of determinations that can be made pursuant to section 38 and indicate that there may be an option for the person to seek legal representation.
It would seem that when she entered the hearing Ms Hall, having been placed on the main gate, told that the Department would not have representation, and not having been informed by anyone that she may be dismissed, was not as fully prepared as she might have been. For example, she put forward very limited information in relation to comparative penalties.
In my opinion, given the failure of the Department to fully investigate the matter, and given Ms Hall's lack of preparedness for the Inquiry, a number of matters that ought to have been canvassed were not fully or adequately canvassed.
Further, in his evidence Mr Delphine indicated that a notation on Ms Hall's personnel file in 1989 saying that she had been counselled as to her future behaviour stressing the importance of not becoming too familiar with prisoners, was a matter of some significance in reaching his determination.
Both at the Inquiry and in her evidence in this case Ms Hall gave an explanation of the incident. Her explanation was rejected by Mr Delphine which I feel was somewhat unfair in the absence of further investigation and clarification.
In his evidence Mr Delphine was asked:
“Where was the actual harm?”
His reply was that the prisoner had come forward complaining about the relationship and wanting it to cease and that this indicated a breach of duty of care to the prisoner. It seems to have been a matter he took into account when reaching his determination. Mr Delphine recalled that he had been given the information by Mr Chadwick, of the Department. The matter was not raised at the Inquiry and, indeed, the evidence at this hearing indicated that the prisoner had not come forward and complained.
These two matters both indicate a lack of procedural fairness in reaching his final determination.
Mr Delphine gave evidence that he made his determination based on the facts presented to him. He indicated that he considered each of the possible penalties and I accept that evidence; indeed, given his experience and expertise it is appropriate that he is delegated the power to make such determinations. However, as I have already indicated, he did not have the benefit of a full and detailed investigation and he seems to have been mistaken as to two matters of some importance. I therefore find that the determination to dismiss was harsh, unjust or unreasonable and constitutes a breach of section 170DE(2) of the Act.
The applicant after making numerous job applications obtained employment with the Salvation Army as a welfare officer in late September 1994. She was out of work for approximately 15 weeks but received commonwealth benefits during a 12-week period. She does not seek reinstatement but seeks compensation.
Although I have found that the determination was harsh, unjust or unreasonable there is certainly a significant chance that the same result would have occurred even if a full investigation into matters of mitigation had occurred; for example, the evidence of Governors Grieves and Small was that the offences were so serious that they warranted dismissal and that Ms Hall could no longer be trusted within the custodial system. Given the particular nature of the prison environment and the expertise and seniority of these witnesses significant weight has to be given to their views. The chance of dismissal, even given further information in relation to mitigation, was still substantial.
It is my view that fairly modest compensation is appropriate, taking into account matters of the applicant’s re-employment and the likely security of her employment within the Department as a result of her misconduct. I fix that compensation in the sum of $5000. Pursuant to the accrued or associated jurisdiction of the court, the respondent has sought to set off or counter-claim the sum of $1441.55 with respect to over-payment of wages and entitlements after the date of dismissal. I accept Mr Pledge's evidence in relation to this matter and find that the sum of $1441.55 was over-paid. I order that this sum be set off against the compensation ordered, the balance due to the applicant being $3558.45.
There will be an order made that the respondent pay the applicant the sum of $3558.45.
There will be stay of seven days granted.
I certify that this and the preceding eleven (11) pages are a true copy of the reasons for judgment of Judicial Registrar Chancellor as recorded in the draft transcript and revised by the Judicial Registrar.
Associate:
Dated: 13 December 1994
Solicitor for the Applicant: Mr Catalano
Messrs Masons
Solicitors for the Respondent: Ronald C Beazley
Victorian Government Solicitor
Counsel for the Respondent: Mr Turner
NOTE:Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
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