M v The Company - [2010] FWA 8062

[2010] FWA 8062

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

M
v
The Company
(U2009/14514)

COMMISSIONER ROBERTS

SYDNEY, 10 NOVEMBER 2010

Application for unfair dismissal remedy.

[1] This decision concerns an application by Mr M (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief for alleged unfair dismissal by the Company. The application was the subject of unsuccessful conciliation on 18 January 2010 and a mention and programming hearing was conducted on 24 February 2010. An arbitration was originally scheduled to commence on 13 April 2010, but then delayed to allow the hearing of a threshold issue raised by the Applicant concerning the admissibility of DVD recording evidence to be brought by the Company. A hearing was conducted on 13 April 2010 to deal with the evidence issue only. Subsequently, I ruled that the disputed evidence was admissible.

[2] The application then came before me for arbitration on 9, 10 and 11 August and 3 September. The Applicant was represented by Mr J Davis of the Liquor, Hospitality and Miscellaneous Union (LHMU) and the Company was represented by Mr S Meehan of Counsel, instructed by Mr R Casimir.

[3] The following witnesses gave sworn evidence for the Applicant:

Mr M, the Applicant.

Mr OW, a Correctional Manager (C.M.) (appearing under summons)

Mr TD, a Correctional Supervisor (C.S.).

Mr DF, a Correctional Officer (C.O.).

Mr TH, a C.O..

Mr RM, a C.O.. (appearing under summons)

[4] The following witnesses gave sworn evidence for the Respondent:

Mr CC, Offender Services Manager.

Mr RJL, General Manager Operations.

Mr JB, Human Resources Manager.

Background

[5] Mr M was employed by the Company as a C.O. at a Regional Correctional Facility (the Facility) from February 1994 until his employment was terminated on 19 October 2009. The reason given for termination was that Mr M had allegedly breached company policies and protocols as a First Responding Officer (F.R.O.) in incidents on 1 and 16 July 2009. Mr M was initially suspended on pay whilst an internal investigation was conducted. That investigation brought down its Report on 22 September 2009 and the Applicant was dismissed on 19 October. Mr M appealed the termination decision through the Company’s internal appeal process. The internal appeal was dismissed on the ground that Mr M’s treatment of an inmate on 16 July 2009 amounted to gross misconduct. Mr M then filed the current application with Fair Work Australia on 9 December 2009. He denies allegations of wrongdoing. The DVD evidence ruled admissible by me formed a major part of the Company’s decision to terminate Mr M’s employment.

Legislative Framework

[6] Section 385 of the Act provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

Evidence

Mr M

[7] Mr M gave sworn evidence and submitted two witness statements 1. The first witness statement relevantly said:

“Other than my initial training, [the Company] provided me minimal training in the duties of First Responding Officer, Use of Force and Centre Emergency Response Teams [CERT]. I had a one hour training course in use of force in January 2006 but no training in the duties of First Responding Officer;

On 1 July I was involved in a use of force on Inmate D. I rely on the officer report I filed in relation to this incident on that day;

I had known the inmate for several years and had read his case notes which described incidents of self harm;

Prior to entering his cell he had been engaged in acts of self harm (aggressively hitting the walls with his hands and forearms). We attempted to enter the Pod area but he held the door knob, making it difficult to open the door. We called a [CERT] alert, seeking assistance;

As a result of his actions, we directed him to return to his cell, which he did, slamming the door. C.O. [RL] and myself followed and looked into his cell;

With C.O. [RL], I entered Inmate D’s cell because I had a genuine concern for his safety after we witnessed him making gestures with a disposable razor and drawing his finger across his throat. I was aware he has a history of self harm and my concern was to prevent this;

I knew the CERT was not far away but I was concerned that not entering the cell would be a breach of my duty of care to the inmate, given what I had seen and my knowledge of him. I made a judgment that protecting the inmate from self harm over-rode my duty as a first responding officer to wait for the arrival of CERT. In the circumstances I believe I made the right decision to the enter the cell;

We subsequently strip searched the inmate and were required to use force on him after he threatened C.O. [RL];

On the 16 July 2009, I was involved in an incident as a CERT member. I rely on the officer report I filed in relation to this incident on that day;

We were called to help escort Inmate C to segregation who had been charged with abusing and spitting at Correctional Supervisor [NB];

During the escort to segregation, the C.S. [NB] repeatedly humiliated and provoked the inmate by telling him to ‘shut up’ etc. On the way to segregation area I was standing immediately behind the inmate as we walked. He turned sharply towards C.S. [NB] in an aggressive way;

I made a judgment that he presented an immediate threat to her and I moved to pull him down and was assisted by other officers;

In my experience situations involving a use of force often require a speedy decision to be taken and this was one of those situations;

After I took the inmate to the ground and was assisted by other officers, I secured his head. He lifted his head a number of times, despite my holding it. I have used force before on inmates in the past and always restrained the inmate’s head where possible. This is due to the fact that the inmate may spit or bite as a way of resisting. I have had an inmate bite his lip and spit blood at me, for example. With the risk of AIDS and other diseases, restraining an inmate’s head is essential, wherever possible;

In the circumstances I believe I made the right decision to protect C.S. [NB] by pulling down Inmate C;

At no time did the Supervisor/CERT Leader [NB] direct me to cease what I was doing. Later that day she thanked me for my quick response and said she had never been so scared in all her life;

I have no negative reports or warnings for my conduct on my file at [the Company].”

[8] The second witness statement was filed in reply to that of Mr JB. The second statement relevantly said:

“... he lists all disciplinary matters concerning me from April 1994. This includes two requests by me in March 2003 for the removal of all negative reports and in May 2003 for the removal of the letter of investigation;

Following my request ..., I received an email from Ms [DD] confirming that all negative reports were to be removed from my file. I saw Ms [HR], Human Resources Manager on 5 May 2003. She showed me my personnel file which contained no negative reports. She confirmed these had been removed.

When the investigation into the use of force on Inmate D commenced in 2009, I again asked to see my personnel file. It contained no negative reports.”

[9] In his supporting oral evidence, Mr M elaborated on the matters contained in his witness statement. DVD evidence of the incidents on 1 July and 16 July 2009 was played. The video evidence of the 1 July incident is of limited utility as it deals with events after the arrival of the CERT.

[10] The DVD evidence of the 16 July incident concerns the event which culminated in Mr M taking Inmate C to the ground and then restraining him, with the assistance of others. Mr M provided commentary on the DVD evidence in response to questions from Mr Davis. He was asked: “In your opinion, what caused the incident on 16 July?” and answered: “The continual use of abuse, threats, intimidation, humiliation by correctional supervisor and team leader Ms [NB] towards the inmate.” 2 Mr M said that, as far as he knew, Inmate C had made no subsequent accusations of ill treatment.3

[11] Mr M went on to say that he subsequently approached C.M. OW “and I said, ‘Mate, I am very, very concerned about the use of force on inmate C. It was totally unwarranted. It wasn't necessary until the inmate was riled up.’ His response was, ‘I don't give a fuck.’ I then said, ‘Mr [OW], the use of force wouldn't have been necessary and would not have occurred except that she kept humiliating, abusing and belittling the inmate.’ Something like that were the words I used and he said, ‘He's a cunt and I'm glad youse used force on him.’ And that was my attempt to go and see my area manager correctional manager for some form of assistance, because I was concerned about the use of force on an inmate. And I then left his office.” 4

[12] In cross-examination, Mr M:

Agreed that he told the Company that the reason for his entering Inmate D’s cell was his fear that Inmate D would harm himself. 5

Was asked: “What you were observing, ... through the window in the cell door was limited to him holding up a razor and the gesture with his fingers?” and answered: “Yes. Also him throwing all his - a heap of gear around the cell.” 6

Said: “Then he stared at the wall with the razor against his throat.” 7

Said that the inmate was no longer holding the razor when he entered the cell. 8

Agreed that he did not look for the razor. 9

Agreed that there could have been a risk to himself and C.O. RL when they entered the cell. 10

Agreed that the primary health and safety obligation was to himself. 11

Was asked: “If the potential was there upon entering inmate D's cell to put yourself in harm's way and seriously so - if someone was holding a razor - the protocol would be, and is, you wait. You don't go in. That's so, isn't it?” and answered: “Yes, but I made a conscious decision for the inmate's safety to enter the cell.” 12

Said that C.S. NB had set out to humiliate and belittle Inmate C on 16 July 2009 by her manner of speaking and the tone she used with him.” 13

Agreed that Inmate C was still holding a plastic garbage bag when he was brought to the ground. 14

Agreed that it is “a fundamental proposition that use of force on inmates has to be justifiable.” 15

Agreed that force is always the last resort. 16

Agreed that he contended “that the use of force was necessary to avoid an imminent physical threat to [C.S. NB].” 17

Agreed that verbal abuse in itself would not justify the use of force. 18

Agreed that in his interview with Mr RJL after the incident, he said that Inmate C had dropped the bag he was carrying and had turned towards C.S. NB with both fists raised. 19

Agreed that he had always maintained that Inmate C turned in an aggressive manner towards C.S. NB. 20

Said that the recording does not show clearly what Inmate C was doing with his hands. 21

Denied that he moved forward towards Inmate C to bring him to the ground from behind. 22

Agreed that in his incident report, he did not say that Inmate C had raised his fists in an aggressive manner. 23 He went on to say: “I just never thought of it at the time. It was just a quick report to get to the shift manager so he can get it through to the duty officer regarding the use of force.”24

Said that he held Inmate C’s head down for the inmate’s protection and that of prison staff, including himself. 25

Was asked why he did not call for other C.O.s to assist him and replied: “I don’t think there was time. He was definitely in my opinion going for her.” 26

Agreed that he had some disciplinary findings against him during his employment in relation to compliance with practices and procedures. 27

[13] Mr M was then questioned in relation to a workers compensation claim and his efforts to find work since the termination of his employment. The compensation claim arose from an injury incurred in bringing down Inmate C.

[14] In re-examination, Mr M said that he had been commended in the past for putting himself at risk: “Every day on an hourly basis your life is in danger and it's sort of an occupational hazard that everybody accepts to work in the gaol.” 28

Mr OW

[15] Mr OW gave sworn evidence, he is a C.M. at the Facility. It was Mr OW’s evidence that around five weeks elapsed before he decided to investigate the incidents of 1 and 16 July 2009. 29 He went on to agree that company policy requires that such a decision be made within 72 hours.30

[16] He went on to say: “In this case with the two uses of force we're talking about, I was never instructed to conduct a follow-up after then - or review them. It wasn't until the four or five weeks after they occurred that it was an instruction from the ombudsman or general managers to look into the uses of force within the last six weeks. The general manager at that time contacted me and instructed me to review and follow up the uses of force in my area for the last six weeks.” 31

[17] Mr OW went on to say that all use of force needed to be investigated under company policy. 32

[18] Mr OW was not cross-examined.

Mr TD

[19] Mr TD gave sworn evidence and submitted a witness statement. 33 Mr TD is a C.O. at the Facility and has worked there since March 1996.

[20] It was Mr TD’s statement that:

He has been a CERT Leader for about ten years and is a trainer and assessor at Certificate 4 Level.

He has never had a negative report during his time as a CERT Leader.

He has read the report in relation to the 16 July 2009 incident and has examined the DVD evidence.

“In my experience in incidents of uses of force, officers are best to both threaten and use overwhelming force, rather than match the force of an inmate against a roughly similar level of force. Using overwhelming force minimises the risk of injury to officers and makes it less likely the inmate will resist. This in turn, means everyone is safer;”

“In my opinion, Officer [M] was justified in initiating the use of force and used appropriate force for the situation on 16 July. On the video, Team Leader [NB] can be clearly heard telling the inmate to stop talking or force will be used. This authorizes the use of force by CERT members from this point onwards, without further reference to the Team Leader.”

[21] In his supporting oral evidence, Mr TD said that he has been a C.S. for about ten years 34 and has been a CERT Leader in about 300 incidents during that time. Prior to his team leader role he attended around 80 to 100 CERT calls as a C.O..35

[22] During his oral evidence, DVD evidence was played of another incident. In that incident, Mr TD was punched when Inmate W suddenly “pivoted on his right foot and hit me in the mouth with his left fist.” 36 He then said, in relation to the use of overwhelming force, “what I mean by overwhelming force is enough force to totally overpower the target, whether it's the number of officers or the way you apply the force. You want the use of force to be over as quick as possible, have him subdued. You don't want to be exchanging blows or exchanging struggles because that's how people get over-excited. Inmates get over-excited, they start to bite, they get injured, you get injured. Once an inmate has been - overwhelming force - there might be an officer on each hand and two officers behind him - we usually find people don't struggle, especially if they know they're not going to get hurt. So if I can control the situation, if I - then that force is to be used - I will go in with overwhelming force. I will not give him a single chance at thinking that if he fights he's going to get any sort of result. From my experience, that's the best way to be, because most people - as long as they're logical and not on drugs which sometimes happened - realise that they're only going to put themselves at risk without any prospect of getting anything positive out of a struggle. Also, by using overwhelming force - usually you find that there are other inmates watching - it's a lesson to them, ‘Don't struggle. You won't be hurt. It will be over as quick as possible.’ If you go in and struggle it can put some of these people in the mind that it's worth having a fight with you. That's if you can plan it.”37

[23] In relation to the 16 July incident, Mr TD was asked: “What implication is there when an inmate doesn't comply with a direction such as to stop talking?” and replied: “Right. The implication is when you give an inmate a direction you expect him to comply as long as the direction is fair, legal and doable. Telling an inmate to stop talking, as in this case, can be done because he might be trying to wind up the officers, wind you up or wind up other inmates to get involved and you really, when you're trying to control a situation, you're trying to control all the elements that might cause more violence or more disruption in the area you are. In relation to Ms [NB] when I hear her on the tape she says, a number of times - well, I don't remember the exact words - but basically, ‘Shut up. Shut up. Don't talk to me. Don't say that,’ and then she says, I think from memory at one point, ‘I'm giving you a direction to stop talking. If you don't stop talking, force will be used.’ I think she repeated that twice. I'm not sure. At that point, the way it's phrased and the way I would phrase it when I'm about to have an enough of an inmate who is not compliant, he's told the officers, ‘If you continue this action again - don't wait for me to tell you - subdue him, take him down and restrain him’, because you don't want to be giving too much of a warning to an inmate that you think might become violent. That you might, for instance, get once, twice told to stop it and then he knows on the third time something is going to happen. He might jump in before you do. It's a good way to subdue a target because you use force - coordinated force - before he's ready to receive it or react to it.” 38

[24] In cross-examination, Mr TD:

Said he was not present during the 16 July incident. 39

Said his evidence concerning the 16 July incident was based on the DVD recording. 40

Agreed that the relevant enterprise agreement provides that employees must “take all appropriate steps to ensure their own health and safety and to ensure that no action or inaction by them compromises the health and safety of other persons...” 41

Said that Mr M told him a number of times that he acted against Inmate C on 16 July 2009 because he feared an imminent attack on C.S. NB. 42

Said that the words used by C.S. NB authorised the use of force. 43

Said that he agreed that the use of force was a last resort. 44

Said that: “If you want to debate whether the team leader should have given that instruction, that's another factor, but she did give that instruction, and the officer acted on that instruction. Now, whether you're asking whether she should have done it or he should have done it, it's another debate, but she did say those words, she did give the instruction, and the officer acted on that instruction.” 45

Said that he agreed that minimum force should always be used. 46

[25] In re-examination, Mr TD said that he had been involved in the use of force where an inmate had failed to comply with a direction. 47 In answer to a question from me, Mr TD said that C.S. NB was in charge and that Mr M was answerable to her orders.48

[26] Mr TD was further asked by me: “When Ms [NB] uttered the words ‘force will be used’ do you interpret that as an authorisation or a direction?” and replied: “In the context of what we're talking about I'd take that as an authorisation.” 49 I further asked him: “So what would be required - if that's an authorisation would Officer [M] then need a further direction to apply force?” and he said: “Well, no. She's authorised and then specified a direct action that he shouldn't do which in this case was speaking or abusing her. Then continuing with that action he's been told not to do becomes the trigger for the use of force.”50 I then asked: “Without further direction?” and he replied: “Yes.”51

Mr DF

[27] Mr DF gave sworn evidence and submitted a witness statement 52. Mr DF is a C.O. at the Facility and has worked there since October 2007.

[28] It was Mr DF’s statement that:

He knew Inmate C reasonably well: “He had an explosive attitude and could be aggressive if things weren’t going his way.”

Inmate C was being moved to the Intake/Segregation Area and became involved in a verbal altercation with C.S. [NB].

“Officer [NB] and the inmate continued to verbally fight. She said something like ‘shut the fuck up’. Inmate C turned at this stage then Officer [M] grabbed him and lowered him to the ground with the assistance of Officer [H].”

“I regard the use of force exercised by Officer [M] to be fair and justified. It was not excessive.”

“I have restrained other inmates in a very similar way and seen other officers do the same when it is necessary.”

[29] In his supporting oral evidence, Mr DF said regarding the movement of Inmate C to segregation: “In the morning he was told that he was going to be relocated and to pack his bags and he was happy and in good character with that because he wanted to be removed from where he was housed to segregation. At that point he was happy to be moved.” 53

[30] Inmate C’s demeanour changed in the presence of C.S. NB. 54 He later saw Inmate C “pivot 180 degrees towards Ms [B] and myself and the rest of the CERT team.”. The inmate was then taken to the ground by Mr M. 55

[31] Mr DF was asked: “Can I ask you is it common to restrain an inmate's head in the use of force when you do a take-down, as you describe it?” and answered: “Yes. I've seen it quite often, because they can bite and harm officers and what have you and that's just to keep him restrained until handcuffs are on, sort of thing.” 56

[32] In cross-examination, Mr DF said that the movement made by Inmate C “looked like he was aggressive in the way he pivoted quickly ...” 57

[33] The DVD recording of the 16 July incident was played during cross-examination. Mr DF agreed that he had not included in his report on the 16 July incident that Inmate C had pivoted 180 degrees. 58 Mr DF repeated his evidence that he viewed the use of force by Mr M as fair and justified.59

[34] Mr DF agreed that Inmate C had been holding two garbage bags in his hands when he pivoted. 60 He was asked: “Didn't Officer [M] make the decision to act on his own?” and answered: “That's correct, and a good decision.”61 He denied that there was any other option in dealing with Inmate C other than to take him to the ground and handcuff him.62 Mr DF went on to say: “At the end of the event no one was hurt and it could quite possibly have been the other way around; himself or an officer.”63

Mr TH

[35] Mr TH gave sworn evidence and submitted a witness statement 64. Mr TH is a C.O. at the Facility and has worked there since July 1994.

[36] It was Mr TH’s statement that:

He knew Inmate C well and was aware that the inmate was on some form of medication and became agitated if he did not receive it.

“I have observed the inmate have aggressive arguments with staff and assaulting other inmates.”

“On the 16 July 2009 the inmate was in segregation (locked in his cell). This was because he had spat at Officer [NB] earlier. The decision was made to move him to the Intake/Segregation Area.”

“[DF] and me went to the inmate and told him he was being moved to the Segregation Area. He told us he was happy to go and said ‘Get me out of here, chief. Get me away from her’. He was referring to Officer [NB] who he had a bad history with. There was constant tension between the two of them. Unit B3 Officers constantly had to stand between him and Officer [NB] to prevent an altercation.”

“He was happy to walk to Segregation and was co-operative. Inmates knew he was going to be released soon and was going to Segregation so they were saying goodbye. Officer [NB] told him ‘to keep fucking moving’. I have observed she almost always swore at the inmate.”

“He kept moving until she called him a ‘smart arse’ and a ‘dickhead’. There was no trigger for this. He told her to shut up. She grabbed him and told him to stop and said ‘You are a fucking smart arse’. I positioned myself between her and him and told the inmate to keep walking. He complied. We moved a bit further when she called him further names and he called her a ‘moll’. She then responded by calling a CERT Code Blue - (Officer needs assistance). I directed him to face the wall and he complied.”

“The CERT Team arrived and Officer [W] (Camera Operator) asked him how he was. He said he was fine and smiled at him.”

“She directed the inmate to be taken to Segregation. The CERT then took over. Officer [M] then asked the inmate to start walking. He was co-operative until Officer [NB] told him to ‘shut the fuck up’. He turned towards her in an aggressive way.”

“I saw Officer [M] take hold of the inmate from behind in a bear hug. The inmate was extremely agitated and was struggling. He then pulled him to the ground. It is standard procedure to take inmates to the ground in order to restrain them. Inmate C is a large and powerful man. I believe there was no alternative but to pull him down. Once on the ground, he began hitting his head on the ground until Officer [M] restrained him further by placing his hand on the back of his head and holding it still. At this time I took hold of his right arm and Officer [M] took hold of his left. Despite Officer [M] holding his head, the inmate managed to lift it from the ground several times.”

“Once he was subdued and stopped struggling we raised him to his feet and he was escorted to Segregation.”

“At no time did Officer [NB] direct any officers to cease the restraint.”

“I regard the use of force exercised by Officer [M] to be appropriate in the circumstances and not excessive. It was necessary to restrain the inmate by pulling him to the ground and it was necessary to restrain his head to prevent injury to himself and others (bearing in mind he had spat at officers).”

“I have restrained other inmates in a very similar way and seen other officers do the same many times when it is necessary.”

[37] In his supporting oral evidence, Mr TH said that he used to speak to Inmate C on a daily basis. 65 He went on to say that the use of force was justified on 16 July 2009 as Inmate C “was very agitated. I believe it could have escalated from there with someone being hurt if he wasn’t restrained.”66 He went on to say: “You don't know if the inmate is actually going to throw a punch or not and if you feel that he will you restrain the inmate.”67

[38] In cross-examination, Mr TH:

Agreed that his report on the 16 July incident was identical to that of C.O. DF. 68 He went on to say that the reports are written in a standard format.69

Maintained that he prepared his report independently. 70
Maintained that Inmate C pivoted 180 degrees towards C.S. NB. 71

Agreed that his affidavit and report do not mention the 180 degree pivot. 72

Said that C.O. DF applied handcuffs to Inmate C. 73

[39] During re-examination, I asked Mr TH if Mr M had done anything to provoke Inmate C and he replied that Mr M had not. 74 I then asked him: “Are you aware of any bad blood, to put it bluntly, between Officer [M] and prisoner C?” and he replied: “No.”75

Mr RM

[40] Mr RM gave sworn evidence, he is the C.M. Intelligence at the Facility. It was his evidence that: “My job is to collect, collate and disseminate information in relation to any criminal activities, et cetera, liaise with external agencies such as the police, Corrective Services.” 76

[41] He went on to say that it was his job to collect evidence such as CCTV footage and archive it in relation to incidents where force is used at the Facility. 77 Mr RM was questioned at length in relation to the collection and storage of what can generally be termed ‘video evidence’ concerning various incidents at the Facility.

[42] Mr RM was not cross-examined.

Mr CC

[43] Mr CC gave sworn evidence and submitted a witness statement. 78 He is the Offender Services Manager at the Facility and has worked there since February 1993.

[44] It was Mr CC’s statement that:

“For the majority of my career with [the Company], however, I have been employed in Operational roles and in the provision of Emergency Response training to Operations staff.”

“I have been a Field Training Officer for the past 10 years, have instructed on all Pre-Service Courses since 1999, instructed on the Corrective Services NSW primary training course, and continue to instruct existing staff in relation to their duties, particularly in relation to Emergency Response.”

“Correctional Officers are taught that use of force is a measure of last resort, only to be applied after all other reasonable options have been exhausted.”

“One of the fundamental safety principles which is taught to Officers is DOFRO, an acronym for Duties Of First Responding Officer ...”

“The application of DOFRO would mean that a First Responding Officer should not enter a volatile or dangerous situation without a proper assessment of the risk, both to themselves and others. An officer who races into a situation contrary to DOFRO would be risking their own safety and the safety of others.”

[45] In cross-examination, Mr CC:

Was asked: “How does this concept [the use of force as a last resort] work in reality when officers are faced with a sudden sign of aggression?” and replied: “In regard to a sudden event, it's known as a spontaneous event, the use of force - again, if the staff believe that there is imminent danger of attack or assault or injury upon another person and by not using force that could be detrimental to that particular person, then they can use force. If the situation is not spontaneous, if the situation allows for an assessment to be made, then there are things called control options to be considered. These control options are various measures, resources and alternatives available to staff prior to using force. But they must exhaust all other options and alternatives prior to using that force, if time permits.” 79

Said that it was his opinion that the behaviour of going into the pod and Inmate D’s cell was ‘risky behaviour’. 80

Was asked: “Assuming that an inmate is within their cell and an officer is on the outside of the cell and the inmate is at risk of self-harm, what do you say in relation to the duty of care to the inmate in the cell?” and replied: “Okay. What I say is, it all depends on the circumstances. If I was aware that the inmate had shown a recent history of abuse, of violence, or directed violence towards the staff, if the inmate had a propensity for violence, or there was some other risk factor involved, then the duty of care is waived because safety of the staff comes first.” 81

Was asked by me: “If an inmate has a history of either self-harm or attempted self-harm and was seen by an officer to be holding something in this hand which could inflict such self-harm upon him, would the officer be justified in entering the cell without following the full procedures?” and replied: “On just those facts alone then, yes. In regards to ‘use of force’ under 121 (see paragraph 60 below), they can use force to prevent self-harm. If they believe that that offender was going to self-harm, then they are more than entitled to enter the cell to prevent that self-harm. But if there are other circumstances involved, then that then starts muddying the waters and that then comes into the assessment of determination.” 82

Said that in a situation such as that which confronted Mr M on 1 July 2009: “... to do nothing is not wrong; to do something in this particular case was risky.” 83

Said: “We don't teach people to be heroes. We don't teach people to engage in risky behaviour.” 84

[46] Mr CC was shown a number of DVDs concerning various incidents at the Facility and asked to comment on specific aspects. I have paid regard to that further evidence.

[47] Mr CC agreed that razors issued to inmates have been used at times as weapons. 85

[48] The DVD of the 16 July incident was played during cross-examination. Mr CC:

Said in relation to C.S. NB: “There appears to be inappropriate remarks been made to the offender.” 86

Said that “Continual verbiage of, ‘Shut up; shut up’ is not necessarily an appropriate thing to do. 87

Said that “The preferred alternative is to let the inmate wobble on, as long as the inmate was compliant and following directions. Commonly they will always cry out and carry on. By saying, ‘Shut up, shut up, shut up,’ you also invoke a certain amount of escalation in the incident. You invoke a response from the offender which can contribute to the escalations I was talking about.” 88

Was asked: “So if the offender or prisoner or inmate is compliant in terms of moving forward in the direction he's required to go, or whatever. There's no need, is there, or is there any need for any officer to reply with further comments?” and replied: “If the offender is still aggressive, any communication with the offender should be on a level that actually calms the offender as opposed to adding to it. So any - if Ms [NB] wanted to talk to the offender, then appropriate verbiage would have been along the lines of trying to make the offender calm and compliant as opposed to riling him up.” 89

Agreed that C.S. NB’s comments would not have calmed Inmate C. 90

Agreed that: “...it was a relevant consideration as to whether force was justified and been used as to the state of mind of the officer at the time.” 91

Was asked: “And this is what I'm putting to you: that where an officer believes sincerely that there is an imminent threat, that is a relevant consideration as to whether force is justified in the circumstances?” and replied: “Yes.” 92

[49] Attached to Mr CC’s witness statement were a number of attachments concerning Mr M’s training record and I have paid regard to that material.

Mr RJL

[50] Mr RJL gave sworn evidence and submitted a witness statement. 93 Mr RJL is General Manager Operations for the Company. Prior to taking up that role he was Investigations Manager, which position he held from 2001 to May 2010. It was Mr RJL’s statement that:

In mid August 2009 he was instructed to undertake investigations at the Facility in relation to the incidents on 1 July and 16 July 2009.

Those investigations resulted in two separate reports (attachments RL 1 and RL 2 respectively of the witness statement).

He considered that Mr M should face disciplinary charges in relation to both incidents.

[51] Also attached to Mr RJL’s witness statement were a transcript of interviews with Mr M concerning the two incidents, a transcript of an interview with C.S. NB and a transcript of the disciplinary hearing of Mr M concerning alleged breaches of the Company’s code of conduct in relation to both incidents. I will turn to that material later.

[52] In cross-examination, Mr RJL:

Agreed that his report on the 16 July incident found C.S. NB’s conduct to have been unprofessional. 94

Agreed that he was critical of Mr M for restraining Inmate C’s head when he was on the ground. 95 He went on to say: “My issues with it were that whilst force was clearly seen to be used, the explanation that was given for the use of that force was not consistent.”96

Said: “I make the judgment after looking at the video and after reading the reports on the matter, but more importantly I make the judgment after interviewing Mr [M] as to what his reason for using the force was.” 97

Was shown, and commented on, DVD evidence concerning incidents involving other inmates.

Was shown, and commented on, DVD evidence relating to the 16 July incident.
Accepted that C.S. NB had said that she felt threatened and scared. 98

Said: “I've got the video and I've got the account of the officer that used the force and they're the critical things in this; you know where an officer uses force it's down to him to explain why and how. My problem with this incident is that the explanation given did not fit with the video...” 99

Said that he was not aware of whether any disciplinary action was taken against C.S. NB. 100

Said that the application of force to a person’s head is dangerous. 101

Mr JB

[53] Mr JB gave sworn evidence and submitted a witness statement. 102 Mr JB is the Human Resources Manager at the Facility and has held that position since February 2007.

[54] It was Mr JB’s statement that:

He has examined employment files relating to the Applicant “for the purpose of establishing the disciplinary history of the Applicant”.

The material examined was Mr M’s personnel file together with “a file containing information in relation to an investigation into allegations that the Applicant and another Officer failed to carry out their duties whilst manning the perimeter vehicle on 7th Feb 2002; and a file containing information in relation to an investigation into allegations that the Applicant, whilst carrying out duties on the Front Gate post on the morning of 22 May 2001, compromised the security of the Centre by having both pedestrian gates open simultaneously.”

[55] Mr JB’s further evidence concerned the workers compensation claim lodged by Mr M and subsequent payments made to him.

[56] Mr JB was not cross-examined.

Mr C

[57] Mr Davis also submitted a witness statement 103 from Mr C, a C.M. at the Facility.

[58] It was Mr C’s statement, relevantly, that:

“I have had many dealings with Inmate D. I have found him to be aggressive, mentally unstable and abusive to staff. I have also seen him engage in self harm such as banging his head on a wall and cell door.”

[59] Mr C was not required for cross-examination.

Documentary Evidence

Crimes (Administration of Sentences) Regulation 2008 (NSW)

[60] Clause 121 (Use of force in dealing with inmates) of the Regulation relevantly provides:

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

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

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

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

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

...

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

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

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

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

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

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

(j) to achieve the control of inmates acting in a defiant manner,

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

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

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

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

NSW Department of Corrective Services Custodial Policy and Procedures

[61] Mr Davis tendered a copy of Part D (‘Serious Incident Response’) of the above policy and procedures. 104 The document is entitled “Using Force on Inmates”.

[62] The document states that “force must not be used if there are alternatives to its use”. It goes on to say: “Correctional officers must only use the minimum amount of force necessary in any situation. That force must be reasonable and appropriate in the circumstances.”

[63] The policy goes on to offer a useful summary:

“1. Force is a tactic of last resort; it must not be used if there are alternatives to its use;

2. The force applied must be reasonable, appropriate, and the minimum necessary in the circumstances; and

3. It must stop when it is no longer required to control the inmate(s) or the circumstances.”

[64] The policy also states that: “... the timing of the use of force should minimise the opportunity for inmates to arm themselves or fortify their position.”

Officer Reports on 1 July Incident

[65] On 1 July 2009 reports were submitted on the incident with Inmate D by Mr M, C.O. RL, C.O. SP, C.O. MS, Team Leader RW and C.M. TH. 105 The reports filed by persons other than Mr M and Mr RL are not directly relevant to my consideration as they deal with events after Mr M and Mr RL had entered Inmate D’s cell.

[66] In his report, Mr M says that he called a CERT 1 Code Blue due to the behaviour of Inmate D. “Fearing that he may do self harm I immediately entered the cell with [C.O. RL] to do a full strip search on [Inmate D] while we were waiting for the CERT Team to arrive.” In his report, C.O. RL says: “Inmate [D] then entered his cell and slammed the door shut and started to act in a manner that attracted our attention and we feared he would self-harm due to his mental state and condition he was displaying. Mr [M] entered the cell to speak to the inmate and to conduct a strip search on inmate [D]. I stood nearer the door during this conversation and then inmate [D] threw his clothes at me ...”

[67] Although C.M. TH’s report concerns events after the arrival of CERT, it is relevant to note that the report says: “... then without warning [Inmate D] lunged forward hitting his forehead against the southern cell wall, this appeared to stun the inmate, as he staggered back from the wall I could see a small trickle of blood coming from his forehead.”

[68] There is no reference in any of the reports to a razor.

[69] Further documents dated 1 July 2009 titled: “Notification of Desire for Police not to Conduct an Investigation” and “Inmate Injury Questionaire” both note that Inmate D refused to cooperate or answer any questions.

Officer Reports on 16 July Incident

[70] On 16 July 2009 reports were submitted on the incident with Inmate C by Mr M, C.O. TH, C.O. DF, C.O. KM and C.S. NB. Mr M’s report states: “Inmate [C] stopped walking and as he was yelling out further abuse towards [C.S. NB] and began to turn around I took hold of his left should and with the assistance of [C.O. DF and C.O. TH] inmate [C] was lowered to the ground and placed in hand cuffs.” Mr M’s report also says: “Inmate [C] was given a direction by [C.S. NB] that he was going to be escorted to Intake by the CERT Team members and that if he failed to comply with directions then force would be used on him.”

[71] C.O. TH’s report says: “Inmate [C] again become verbally aggressive and abusive towards [C.S. NB]. The Team started walking inmate [C] out of the unit when [Mr M] took hold of inmate [C], restrained him and lowered him to the ground. I aided [Mr M] by taking hold of inmate [C]’s right arm and positioning it behind his back so [C.O. DF] could place the handcuffs onto the inmate.”

[72] C.O. DF’s report is in very similar terms to that of C.O. TH.

[73] C.O. KM’s report says that Inmate [C] failed to comply with a direction from C.S. NB “... and became verbally abusive and aggressive. CERT members [Mr M], [C.O. TH], [C.S. NB] and myself used minimal force to restrain Inmate [C] and [C.O. DF] handcuffed Inmate [C] before escorting inmate [C] to intake to be assessed by medical.”

[74] C.S. NB’s report says: “Inmate [C] proceeded to walk out of the front gate entry and commenced becoming verbally aggressive and abusive towards myself ... Inmate [C] began to turn around towards myself and continued to verbally abuse me and turn towards me, [Mr M] used minimal force to lower inmate [C] to the ground. [C.O. DH], [C.O. KM] and myself assisted in restraining inmate [C] with minimal force whilst [C.O. DF] applied the handcuffs.”

[75] Further reports were submitted on or about 1 September 2009 by C.O. JW, C.O. KM and C.O. TH. Those additional reports were apparently submitted at the request of Mr RJL. Mr M did not submit a further report, apparently content to rely on his report of 16 July 2009.

[76] C.O. JW’s report says: “As per my best recollection [C.S. NB] then gave inmate [C] a final direction to ‘shut up’ at this stage we had just exited the unit B3 gate and [C.S. NB] and inmate [C] were still arguing in an aggressive manner at this time [Mr M] appeared to grab inmate [C] with both arms just below the shoulder and bring him down to the ground...”

[77] The further report by C.O. KM says: “... [C.S. NB] directed inmate [C] to shut up inmate [C] failed to comply with the direction and became verbally abusive and aggressive yet again. CERT member [Mr M] was walking behind inmate [C] at this time when inmate [C] turned to the left stating the words ‘fuck you’, [Mr M] grabbed [Inmate C] on that left side by his arm and continued to place inmate to the ground, [C.O. TH], [C.S. NB] and myself used minimal force to restrain Inmate [C] and [C.O. DF] handcuffed Inmate [C] before escorting inmate [C] to intake to be assessed by medical.”

[78] C.O. TH’s further report says: “[C.S. NB] then became involved in a verbal argument with the inmate directing him to shut up. Inmate [C] then stopped and turned, as if to face [C.S. NB] and became aggressive. At this time [Mr M] appeared to bear hug the inmate and lower him to the ground. I did not see the full action due to the camera operator being in front of me, I then pushed past the camera operator to secure inmate [C]’s right arm. It appeared [Mr M] held the inmate’s head to stop him from hitting it on the ground as he did after he was secured on the ground. [C.O. DF] then hand cuffed inmate [C] and took the inmate’s left arm and I took his right arm and we walked the inmate to the segregation area.”

[79] C.S. NB does not appear to have submitted a further report.

Incident Assault Reports

[80] An Incident Assault Report dated 1 July 2009 relating to Inmate D describes the “degree/severity of injuries” as “moderate”. The injuries are specified in that report as “right eye small cut”, “graze to hand”, “head butted wall in segro-wound approx 10 cent size”. Also supplied to me is a document titled: “Report to Police of Alleged Incident/Assault” relating to Inmate D which is signed by C.S. WD. That report states:

“BRIEF SUMMARY OF OCCURENCE: At 10:16 hours this morning Inmate D became non-compliant and aggressive with staff. As a result minimal force was used to make the inmate comply.”

[81] The report goes on to note that Inmate D did not require any police action and states that the incident is being dealt with internally by the Facility. Further documents titled: “Notification of Desire for Police not to Conduct an Investigation” and “Inmate Injury Questionaire” both note that Inmate D refused to cooperate or answer any questions.

[82] However, Mr RJL’s investigation report (see below) states that: “The prisoner was interviewed and made a verbal complaint that the use of force had been unwarranted and excessive and that as a result he had sustained a fractured wrist.” The alleged use of excessive force in restraining Inmate D was the genesis of the investigation process commenced by Mr RJL.

[83] An Incident Assault Report dated 16 July 2009 relating to Inmate C describes the “degree/severity of injuries” as “minor”. The injuries are specified in that report as “red mark to right forehead” and “minor graze to right knee”. Also supplied to me is a document titled: “Report to Police of Alleged Incident/Assault” relating to Inmate C which is signed by C.S. GH. That report states:

“BRIEF SUMMARY OF OCCURENCE: Inmate was being moved to the segregation area when he become abusive to the unit Supervisor. He was told by staff to refrain from abusing the Supervisor.

He continued walking and continued abusing the Supervisor. The inmate was about to leave the unit keyhole when he attempted to turn back towards the Supervisor. Staff who were escorting the inmate restrained the inmate from approaching the Supervisor and the inmate was lowered to the ground by the escorting officers. Handcuffs were applied and the inmate was escorted to the segregation area. Once in the dry cell the inmate continued to abuse staff. He was directed to refrain from abusing staff and settled down so the handcuffs could be removed. The handcuffs were removed without further incident. Inmate was assessed by medical staff and refused to answer any questions from medical staff.”

[84] The report goes on to note that Inmate C did not require any police action and states that the incident is not being dealt with internally by the Facility.

[85] Further documents titled: “Notification of Desire for Police not to Conduct an Investigation” and “Inmate Injury Questionaire” both note that Inmate C refused to cooperate or answer any questions.

[86] However, Mr RJL’s investigation report (see below) states that: “The prisoner made verbal complaints immediately following the incident that the use of force had been unwarranted.”

The investigation process

[87] On 18 August 2009 Mr M was formally advised by the Company’s General Manager that an investigation was to be conducted into the incident with Inmate D. That notification was followed by an interview the next day between Mr M and Mr RJL. On 25 August 2009, Mr M was advised of his suspension from employment on full pay while an internal investigation was conducted. The letter to Mr M says:

“The purpose of that investigation is to find out what occurred and determine whether there has been any contravention of Operating Procedure or breach of the Code of Conduct. It is thought appropriate that you be suspended on full pay pending completion of the investigation and consideration of any findings and recommendation of the investigation report.”

[88] The suspension from employment was initially for a period of 14 days but subsequent correspondence extended that period and Mr M remained suspended on full pay until his employment was terminated.

The disciplinary interview of 19 August 2009

[89] The transcript of the interview 106 concerns the Inmate D incident. During the interview, Mr M said: “He eventually went to his cell which was D13 and as he entered the cell he slammed his door shut and it slammed that bad I thought it was going to actually fall off the hinges. Myself and officer [RL] were outside the door. The inmate began making visual threats towards us again. He began throwing a heap of gear around in his cell and he picked up a razor and more or less insinuated he was going to do self harm. Officer [RL] and myself both made the decision to enter the cell in fear that the inmate may cause self harm to himself.”

[90] The following exchange later occurred between Mr M and Mr RJL concerning Inmate D:

“M: He just sort of raced over to his cell, very quickly ... walked very quickly and then he just grabbed the door knob on the inside and just reefed it shut and she banged.

RJL: Okay. Thereafter that you’ve made the decision to enter the cell.

M: Yes after seeing the inmate throwing all the stuff around in the back area of his cell, prancing in his cell and then he picked up a razor and held it up to us.

RJL: Okay. And in relation to what you’ve been taught as far as responding, were your actions in entering the cell consistent with that in your view?

M: Oh most definitely. I honestly feel that we’ve stopped an inmate from causing self harm to himself.

RJL: The question I have to ask you is if you thought the prisoner represented a threat to you and you’d called for an emergency response and the prisoner had gone into his cell, then the threat to you and officer [RL] was no longer present?

M: That’s correct. Yeah there was no threat to me or Mr [RL].

RJL: Because he was behind the cell door?

M: Yep the threat ... the only threat was the inmate causing self harm to himself.”

[91] The exchange between Mr M and Mr RJL later continued:

“RJL: Tell me exactly what the prisoner was doing in the cell that made you think he was going to self harm.

M: He was throwing all the gear around his cell. He made threats like this, rubbing his ... with finger around his throat. And then he picked up a razor blade and held it up to us. I naturally thought well he can either slit his throat or slit his wrists.”

[92] Mr RJL later asked Mr M:

“RJL: If you entered the cell because you thought the prisoner was going to self harm with the razor, when did you take the razor off him?

M: I’m not sure. He must have thrown it with all his gear. I honestly couldn’t tell you. He must have thrown it with all his gear.

RJL: When you were doing a strip search?

M: Yes.

RJL: So the prisoner had the razor in his hand and you entered the cell because you thought he was going to self harm with the razor, and you’re telling me you walked past him.

M: Yeah mate. I went immediately past him. Well straight past him.

RJL: While he’s got the razor in his hand?

M: Yeah. To my knowledge he had still the razor in his hand, yeah.

RJL: You didn’t want to immediately take if off him if he was ... if you thought he was going to self harm with it?

M: Mate I never had ... I never thought of it then. I just got in there and wanted to get everything off him and check him out to made sure he couldn’t do any self harm because he’s already done a heap to himself.

RJL: I’m sorry mate. Are you telling me now you didn’t even think about the razor but before you said that was your reason for entering the cell because you thought he was going to self harm?

M: Mate he must have thrown it when we walked in. I don’t know. I couldn’t even tell you if he had it still in his hand. He could have thrown it with all the other gear he was throwing and everything else. I honestly can’t tell you.

RJL: It wasn’t the focus of your action.

M: No.”

[93] On 1 September 2009, Mr M was advised that the 16 July 2009 incident with Inmate C was also to be the subject of a formal investigation. The first step in that investigation was an interview with Mr RJL on 2 September 2009.

The disciplinary interview of 2 September 2009

[94] The transcript of the interview 107 concerns the Inmate C incident. During the interview, Mr M said:

“Inmate [C] was given a direction by correctional supervisor [NB] that he was going to escorted to intake by the CERT team members and that if he failed to comply with directions then force would be used on him. Inmate [C] commenced to call correctional supervisor [NB] a fucking mole and a fucking slut and as he started to walk towards the front green gates with his bags began to yell to [C.S. NB] you are a fucking mole and a fucking slut and I will make sure that I get you on the outside you fucking mole. Inmate [C] stopped walking and as he was yelling out further abuse towards correctional supervisor [NB] and began to turn around I took hold of his left shoulder and with the assistance of correctional officer [DF] and [TH] inmate [C] was lowered to the ground and placed in handcuffs.”

[95] Mr M said that he thought the remarks directed by C.S. NB to Inmate C were “uncalled for”. He was then asked by Mr RJL: “in what respect?” and replied: “like he was prepared to walk and he was continually sort of abuse.” Mr M was later asked: “So tell me exactly what happened that led your use of force upon him?” Mr M replied: “We well escorting the inmate out. He walked through the green gates and there was a bit of abuse going both ways and then he turned with his sort of hands raised a bit in an aggressive manner towards Miss [NB] and that’s when I sort of took him in a headlock and with the assistance of the other officers lowered him to the ground.”

[96] Mr M went on the say: “And then I held him there. He whacked his head once I think so I put me hand on his head and that was it.” He was then asked: “He whacked his head?” and replied: “Yeah. On the concrete and I just held him there until ... I just held him there to stop him doing any further self harm to himself and [C.O. TH] I think came to me assistance and then he was handcuffed by [C.O. DF].”

[97] Mr M later said: “My main reason for using force was the inmate had turned in an aggressive manner with both hands raised and he was sort of stepping towards Miss [NB]. So I got in between them and sort of grabbed him in a headlock from behind with me left arm and with the assistance of the other officers he was lowered to the ground.”

[98] In the interview, Mr M was questioned extensively about the actions of Inmate C and was shown the DVD recording of the incident. Emphasis was put by Mr RJL on whether the inmate raised his fists and the location of the two garbage bags containing the inmate’s belongings. Mr M asserted on more than one occasion during the interview that he believed his use of force was reasonable in the circumstances.

Disciplinary interview with C.S. NB of 3 September 2009

[99] The transcript of the interview 108 concerns the Inmate C incident. The interview was also conducted by Mr RJL.

[100] C.S. NB told Mr RJL: “Inmate [C] proceeded to walk out of the front gate entry and commenced becoming verbally aggressive and abusive towards myself and stated you fucking mole, you’re a fucking slut, and I’ll make sure I get you on the outside you fucking mole, which he had already previously on the 12th of July made threats to those words. Inmate [C] began to turn around towards myself. But he did turn around but he went, so it wasn’t full turn around. So what I mean by turning around he went to go round and at that point he began to verbally abuse me again and correctional officer [M] wasn’t given a direction by me to use force as such but I assume that he just made that decision on the spur of the moment given the fact that the inmate had used threats towards myself and threatened my safety. So that’s all I can say on that part.”

[101] C.S. NB was then asked: “Were the inmate’s threats threats of using force or doing something to you then and there or were they future threats when he got out?” and she replied: “No. I understood that those threats were now and also when he actually gets released from jail.”

[102] C.S. NB later said: “His threats towards me and the way I understand it and the way I took it on the day is that he was aggressive with me which actually scared me. And I did fear for my safety because of the threats that he made once he was going to leave the prison. And because they were ongoing threats.”

[103] C.S. NB was then asked by a Union Representative present at the interview: “What was his body language like towards you when he was moved?”. She replied: “He was scary. He had the eyes. It did scare me. I don’t often fear for an inmate but that inmate really did make me unease from the moment that, basically throughout my time being in B3 he was pretty much ... He’s very intimidating towards other inmates and staff but he did scare me and not many people scare me but he actually did scare me.”

[104] C.S. NB said that she did not direct Mr M to take physical action against Inmate C. She said: “But I only can remember what I recall on the day which is that the inmate went to turn, did a slight turn towards me, and that’s when use of force was used.” She further said: “He turned his head ... Yeah he went to turn but didn’t actually have a full turn so whether that was an indication that he was going to become violent towards me I’m not sure because the opportunity didn’t ...yeah.”

[105] C.S. NB said that: “Officer [M] was between us at lot which I felt obviously to protect myself.”

Report by Mr RJL on the 1 July 2009 Incident

[106] Mr RJL prepared a lengthy report into this incident. 109 That report made a number of findings against several officers, including Mr M. In specific relation to Mr M, Mr RJL found:

“3.19 The investigation finds sufficient evidence for the decision maker to consider whether the conduct of CO [M] as FRO and his subsequent explanation of the same amounts to contravention of the following provisions of the Code of Conduct:

4.1.6 Staff will not do anything which may affect or cast doubt about their ability to perform their official duties.

4.1.7 Staff are to be honest and above reproach in every manner and to conduct themselves with propriety whilst carrying out their duties.

4.2.6 A staff member will not be careless or negligent in the performance of their duties.”

[107] In reaching the above conclusion, Mr RJL’s report relevantly says:

“3.9 In the circumstances of this incident, the investigation finds that staff identified that an emergency response was required and initiated the same. The inmate then contained and isolated himself as instructed. Both officers were aware of the potential risk of other prisoners becoming involved and the lock down of remaining cells had not been undertaken. There was opportunity to safely observe the prisoner and contain the incident pending the imminent arrival of CERT. There was opportunity to communicate or seek guidance before acting contrary to a fundamental safe work practice.

3.10 In Officer reports complied immediately after the incident both CO [RL] and CO [M] reported that the justification for entering the prisoner’s cell was the inmate’s demeanour and behaviour which they assessed as representing a risk of self harm.

3.11 At interview further information about the inmate’s demeanour was given, in particular citing a motion he made with his finger across his throat (which on this occasion was interpreted not as a threat to staff but as a threat to self harm); and furthermore that the risk was deemed imminent because the inmate was allegedly observed holding a disposable razor.

3.12 Even if the perceived risk had been realised and the prisoner had harmed himself with the razor, these circumstances could have been assessed at that point against the anticipated arrival of CERT and a safe and effective response. There was further opportunity to communicate in this regard.

3.13 Despite asserting that, the perception that the prisoner was about to imminently self harm with the razor was the overriding reason for opening the cell door and entering, there was not an immediate attempt by the officer to restrain the prisoner on entering and remove it from his possession; indeed Officers [M] and [RL] both describe Officer [M] moving past the prisoner to the rear of the cell seemingly with no regard for the risk that would have been posed by the prisoner’s alleged possession of the article.

3.14 The investigation finds that the actions of Mr [M] on entering the cell are inconsistent with fear for the inmate’s safety on the basis of possession of the razor being the genuine reason for the officers entering the cell.

3.15 The investigation finds that the actions of CO [RL] and [M] were contrary to accepted safe work practice and fundamental responsibilities of First Responding Officers. The decision maker may rely on his own industry experience in determining this.

3.16 The lack of creditability in the explanation provided for entering the inmate’s cell is further compounded by both officers maintaining at interview that their actions were justified in the circumstances; and that the perceived ‘potential’ for the inmate to do self harm was a consideration that overrode a fundamental safe work practice.

3.17 The investigation finds that if the stated belief of CO [M] and [RL] is honestly held and they are unable to understand the concept of FRO duties, then in this event, there is doubt about their ability to conduct their duties without representing an ongoing risk to their own safety and the safety of other responding staff.”

[108] The report makes similar findings against C.O. RL.

[109] The report also states:

“3.27 No written statement has been sought from [D]. It is unlikely that a statement from the inmate would assist the decision maker in this matter. The inmate has no credit as a witness and it would be unsound to make any finding against a correctional officer based on any uncorroborated statement he might make.”

Report by Mr RJL on the 16 July 2009 Incident

[110] Mr RJL prepared a lengthy report into this incident. 110 That report made findings against both Mr M and C.S. NB. In specific relation to Mr M, Mr RJL found:

“3.23 The investigation finds that the use of force on Inmate [C] by CO [M] in taking the inmate to ground was unwarranted.

3.24 The investigation finds sufficient evidence for a decision maker in disciplinary proceedings to consider whether the actions of CO [M] on 16 July in using force on Inmate [C] and in providing subsequent accounts of the same, amounts to contravention of the following provisions of the Code of Conduct:

4.1.1 All staff will exhibit to the best of their ability, a professional approach towards their supervisors, peers and subordinates in the treatment of prisoners/inmates and the maintenance of the daily routines of the Centre. Staff will carry out their duties and functions within the guidelines and policies of the company.

4.1.2 Staff will be courteous, reasonable and fair in their dealings with all prisoners/inmates, colleagues and members of the public, irrespective of race, religion, gender disability, sexual orientation or any other factor.

4.1.5 Staff are not to bring discredit to the Company in respect of their conduct on and off duty.

4.1.6 Staff will not do anything which may affect or cast doubt about their ability to perform their official duties.

4.1.7 Staff are to be honest and above reproach in every manner and to conduct themselves with propriety whilst carrying out their duties.

4.3.7 Malicious harassment of ..., prisoners/inmates ...

4.3.20 .... bullying of ..., inmates.

4.3.23 Any action which may bring the activities of [the Company] into dispute.

3.26 The investigation finds sufficient evidence for a decision maker in disciplinary proceedings to determine whether the force applied to the back of Inmate [C]’s head whilst he was on the ground was inappropriate and amounts to contravention of the following provisions of the Code of Conduct:

4.1.5 Staff are not to bring discredit to the Company in respect of their conduct on and off duty.

4.1.6 Staff will not do anything which may affect or cast doubt about their ability to perform their official duties.

4.1.7 Staff are to be honest and above reproach in every manner and to conduct themselves with propriety whilst carrying out their duties.

4.3.7 Malicious harassment of ..., prisoners/inmates ...

4.3.20 .... bullying of ..., inmates.

4.3.23 Any action which may bring the activities of [the Company] into dispute.”

[111] In reaching the above conclusion, Mr RJL’s report relevantly says:

“3.15 The account given by CO [M] in his Officer Report of 16 July 2009 that he stopped walking and 'began to turn around' does not provide justification for the use of force. The accounts given by witnesses in Officer Reports compiled on 16 July 2009 similarly provide no basis for the justification of force used by CO [M].

3.16 In a further Officer Report submitted on 1 September 2009, CO [TH] expands on his Officer Report of 1 July 2009 by stating that at the relevant moment, [Inmate C], ‘stopped and turned as if to face CS [NB] and became aggressive.’ At interview Mr [M] expanded on his account of the inmate's actions which prompted his use of force. He alleged the inmate stopped, turned around, raised both hands in an aggressive manner and stepped towards the Supervisor. There is no evidence on the video recording of the inmate acting in this manner.

3.17 It must be acknowledged however that there are several 'frames' in the video footage where any action by the inmate would have been obscured by CO [M]. A frame by frame analysis of the relevant part of the incident has been prepared on CD. Video evidence does show clearly that, at the time force was used on the inmate, he was facing away from Mr [M] and the CS. Furthermore the video shows that the inmate was still holding at least one of the bags he had been carrying.

3.18 Mr [M]'s more detailed description of the alleged actions of [Inmate C] in justification of his use of force, is therefore inconsistent with the video evidence. The investigation does not accept there was sufficient timeframe (where [Inmate C]'s actions were not visible by camera) for him to have acted as alleged. Furthermore even if the inmate had been able to so act, the critical issue is that at the time Mr [M] used force the inmate was facing away from the CS and was still holding or had picked up a bag. The investigation does not accept that the prisoner represented an immediate threat to the safety of the CS or any other person at that time.

3.19 The investigation notes the description given by CO [M] at the conclusion of his audio recorded interview of the manner in which he forced [Inmate C] to the ground, ‘... put my hand around his neck and took him from behind sort of.’The officer's admission that he ‘took the prisoner from behind’ is not consistent with the prisoner having stopped, turned around, raised his hands and stepped towards the CS.

3.21 The investigation accepts that inmate [C] was abusive towards the CS and that this verbal abuse by [Inmate C] was contrary to a direction given to him to remain silent. Whilst there are circumstances when an inmate's abuse or continued refusal to remain silent may directly threaten the safety of an individual or the security and good order of the facility and may therefore justify a use of force (such as inciting other prisoners) the conduct of [Inmate C] on this occasion did not represent such a threat.

3.22 There are proper means available to custodial staff to sanction a prisoner for using abusive language. Force may not be used as a sanction or punitive measure.”

[112] The report also makes findings against C.S. NB:

“The investigation finds sufficient evidence for a decision maker in disciplinary proceedings to determine whether CS [NB] conduct, in supervising the escort of the segregated prisoner amounts to contravention of the following provision of the Code of Conduct:

4.2.6 A staff member will not be careless or negligent in the performance of their duties.”

[113] In reaching the above conclusion, Mr RJL’s report relevantly says:

“3.1 Although a number of staff indicate that, in their opinion, the manner in which CS [NB] spoke to inmate [C] prior to the initiation of a CERT response was inappropriate and/or represented abuse of the prisoner, their evidence (perhaps due to the time that has since lapsed) of what was actually said lacked sufficient specificity on which to base any finding.

3.2 [Inmate C] was the subject of a S10 Segregation Order, segregating him from others for the good order and discipline of the centre. Specifically he was deemed to represent a risk to staff having earlier intimidated CS [NB] with veiled threats.

3.3 The investigation finds that in these circumstances the involvement of CS [NB] in the escort was unnecessary and inappropriate.

3.4 Notwithstanding 3.3 above, as Unit B3 CS and CERT Leader, Ms [NB] was in charge of the escort and failed in her duty to ensure that the inmate remained segregated. Other inmates had not been locked away and in contravention of the Order, [Inmate C] had contact with other prisoners in the unit.

3.12 The investigation is critical of the ongoing involvement of the CERT Leader Ms [NB] in the escort at this time. There was scope to be more professional and distance herself from the inmate. The communication from the Supervisor was inflammatory and had little prospect of de-escalating the situation.”

[114] Mr RJL’s reports were endorsed by the General Manager on 22 September 2009.

[115] On 24 September 2009, Mr M was advised that he was required to attend a disciplinary hearing on 1 October 2009. That hearing was to consider both the Inmate D and Inmate C incidents. The disciplinary hearing arose out of the reports by Mr RJL (see paragraphs 106-113 supra).

[116] On 16 October 2009, the General Manager wrote to Mr M regarding the outcome of the disciplinary hearing. That letter relevantly says:

“Consideration of Mr [M]’s Involvement in the [D] Matter

Actions Taken on Entering the Inmate’s Cell: You explained your actions in entering Inmate [D]’s cell prior to the CERT attendance, in that you advised that (although the CERT had been called) Inmate [D] was seen to have a razor in his hand and was gesticulating in an act of cutting his throat. You felt that the inmate was going to harm himself, so a decision was made to enter the cell to ‘prevent the inmate from self harming’.

I questioned you at length about why you entered the cell and, in particular, regarding the whereabouts of the razor. You were not able to tell me where the razor was, saying you did not think to look for or ask for the razor. When asked where the razor was, you responded that you thought Inmate [D] has just thrown the razor somewhere in the cell.

I find this explanation by you lacks credibility and is inconsistent with your account of the actions taken by you on entering the cell. However the motivation for entering the cell is not clear. I note, however, that the Investigator found no evidence to establish that the inmate was assaulted in the cell.

While I do not have sufficient facts to determine what was the basis upon which you entered the Inmate’s cell, I consider that in any event you breached a fundamental protocol in your duty as one of the First Responding Officer’s (FRO’s). You entered the cell contrary to fundamental correctional safe work practice.

...

Consideration of Mr [M]’s Involvement in the [C] Matter

Your Use of Force upon Inmate [C]: I have reviewed the Investigation Report, video footage, your submissions and your responses to questions during the Hearing.

I find that your answers lack credibility and relevantly are not supported by video footage.

In particular your stated motivation for applying a Use of Force (UOF) against Inmate [C] is not supported by the video footage. At the time of the UOF you stated that you acted in anticipation of an assault by the Inmate upon [C.S. NB]. However at the time of your UOF upon the Inmate (as recorded in the video footage) the Inmate had his back to the staff (including you) and was holding a bag of his possessions.

Video footage clearly refutes your assertion that the Inmate was going to harm [C.S. NB]. At the very time when force was used, you were standing/walking directly between the front of [C.S. NB] and the Inmate and you could block any attempt by the Inmate to approach [C.S. NB].

On this basis I consider that your UOF upon the Inmate (noting he had his back to you and was not presenting an immediate physical threat to any person) was not warranted.

I then asked you about the manner in which you continued the UOF upon the Inmate, in restraining him on the ground.

In particular, I asked you why you used your hand to push down on the Inmate’s head, forcing his head into the concrete? You replied that you did this so that the Inmate could not self-harm by banging his head on ground.

I asked you did you believe the Inmate was going to self-harm? You responded that you did not know.

I find that your actions were consistent with an unwarranted UOF upon the Inmate and thereafter the UOF included inappropriate and excessive restraint techniques rather than an effort to prevent self harm.

I find the reasons provided by you for your actions are not credible.

In view of your long experience, I am satisfied that you were aware of the inappropriateness of your actions, which I consider to be contrary to the Company’s Code of Conduct.

Decision

Based on the consideration of the material recorded in the Investigation Report and the material submitted to me during the Hearing, I find that:

1. Your conduct in entering Inmate [D]’s cell was contrary to fundamental protocols and procedures regarding the actions of an FRO and your responses as to the reasons for your actions were lacking in credibility. In this regard I find that you have breached the following provisions of the Code of Conduct:

4.1.6 Staff will not do anything which may affect or cast doubt about their ability to perform their official duties.

4.1.7 Staff are to be honest and above reproach in every manner and to conduct themselves with propriety whilst carrying out their duties.

4.2.6 A staff member will not be careless or negligent in the performance of their duties

2. Your actions on 16 July in using force on Inmate [C] were contrary to procedures and your reasons for your actions were lacking in credibility. In this regard I find that you have breach the following provisions of the Code of Conduct:

4.1.5 Staff are not to bring discredit to the Company in respect of their conduct on and off duty.

4.1.6 Staff will not do anything which may affect or cast doubt about their ability to perform their official duties.

4.1.7 Staff are to be honest and above reproach in every manner and to conduct themselves with propriety whilst carrying out their duties.

4.3.7 Malicious harassment of ..., prisoners/inmates ...

4.3.20 .... bullying of ..., inmates.

4.3.23 Any action which may bring the activities of [the Company] into dispute.

In this regard, I find that the UOF upon the Inmate was not warranted, the manner of the initial UOF to the Inmate (with his back to you) was inappropriate and the continued UOF applied to the back of Inmate [C]’s head whilst he was on the ground was excessive, unwarranted and amounts to contravention of those provisions of the Code of Conduct set out earlier.

Having regard to your actions, I consider your actions are so serious as to warrant your termination of employment.

I find that there are insufficient mitigating factors to justify a decision other than termination of employment. I consider your responses in relation to your actions were evasive and your responses were contradicted by the videotape. I do not have confidence in you to perform your duties with safety and in compliance with procedures. You are a very experienced officer and therefore I have no doubt that you were aware of the nature of your actions.

I have taken your long experience with the Company into account and in view of this service my decision is that you be terminated on notice (rather than summary termination).

You have the right of appeal against this decision to the Managing Director. Such appeal must be in writing and must be lodged within 10 days of receiving this notice.”

[117] On 19 October 2009, the General Manager wrote to Mr M terminating his employment. He was paid five weeks pay in lieu of notice. The employment of C.O. RL was apparently also terminated at the same time.

[118] On 20 October 2009 Mr M lodged an appeal against the General Manager’s decision. The appeal document is a lengthy one and I have paid due regard to its contents.

[119] On 1 December 2009 the Executive General Manager Risk and Compliance of the Company wrote to Mr M. That letter said:

“After reviewing the matter, I regret to inform you that the decision to terminate your employment should stand.

I set out my reasons below.

1. Notwithstanding the explanations you have subsequently put forward as reasons for entering the cell, you did breach the Company’s Code of Conduct in doing so contrary to fundamental protocols and procedures, applying to the actions of a First Responding Officer;

2. The use of force exerted upon the inmate on 16 July 2009 was pre-emptive, punitive, unwarranted, inappropriate and excessive.

The decision maker following the disciplinary hearing held on 1 October 2009 stated that your period of service was taken into account in his decision to terminate your employment with notice rather than summarily terminate your employment.

Mindful of your actions towards the inmate who was in the custody of the Correctional Centre and to whom a duty of care was owed, I concur with the decision to terminate your employment with notice.”

Written Submissions

[120] Both parties filed written outlines of submissions. 111

[121] The outline filed on behalf of the Applicant says:

“The Applicant accepts the investigation and appeal process presented the potential to reverse the termination of employment decision, and therefore accepts the reasons stated ... as the reasons for the termination of his employment;

The Applicant submits he did not receive a ‘fair go all round’ and was not dismissed for a valid reason and therefore challenges the reasoning ...

The Applicant was not dismissed for a ‘sound, defensible and well-founded’ reason. The Respondent chose to investigate the use of force incidents on 1 and 16 July 2009, out of some 50 uses of force on inmates at [the Facility] that year. The Applicant featured in both uses of force chosen to be investigated. The inference which may be drawn from this is that the Respondent targeted the applicant. They did not randomly select the incidents of use of force to investigate. This was capricious and prejudiced, and led to the termination of employment of the applicant.

In both incidents, the Applicant had good reasons for using force which comply with the Regulation.

On 1 July the Applicant had good reason to abandon the duties of a First Responding Officer, which usually dictate the officer wait for the CERT to arrive. He believed Inmate D was in danger of self harm and time was of the essence. He made a judgment that entering cell was a more appropriate action than waiting.

... the Applicant is entitled to be believed when he says he entered the cell to protect the inmate. His reasons for entering the cell are dismissed by the Respondent as not credible because he did not ascertain where the razor was when he entered the cell ... The Applicant is entitled to call into question the credibility of the Respondent’s case against him because it equally didn’t look for the razor. No inspection of the cell was undertaken after the inmate was removed.

On 16 July the Applicant was part of the CERT which was escorting Inmate C to segregation. Inmate C and Team Leader [NB] were involved in an aggressive verbal exchange. The inmate was instructed to be quiet or force would be used. He did not stay quiet and force was therefore authorised by the Team Leader. The Inmate was nearest to the Applicant when he turned in an aggressive manner towards the Team Leader. The Applicant was entitled to believe her safety was at risk and respond with the use of force. The Applicant was required to make a split second judgment about the situation. The Respondent was able to ponder the rights and wrongs, theorise about the incident and conclude the decision was the wrong one. This approach treated the officer’s situation i.e. escorting a violent criminal, in a capricious and presumptuous way.

The officer reports detail the verbal exchange and the death threats from the inmate towards the Team Leader. The reports provide evidence that the inmate turned towards the Team Leader and that the Applicant used the minimum force necessary. Despite the context, the Respondent concludes the inmate was harmless and should not have been pulled down. The use of force was pre-emptive, punitive, unwarranted, inappropriate and excessive. Such a conclusion puts a low value on the safety of officers and is prejudiced against their safety.

There is no evidence it was unwarranted or punitive, inappropriate or excessive. It may have pre-empted an assault and for that the Team Leader was thankful.

The Applicant believes FWA should take into account his long and dedicated service with the Respondent. This includes congratulations for intervening in an incident which put himself at risk, but for which he is now in part dismissed (1 July incident), his decisiveness and protection of others (relevant to both incidents). Such commendations encouraged him to believe such actions would be supported by the Respondent but in July 2009, support was capriciously absent.

The Applicant seeks reinstatement and compensation for all lost wages. He is ready, willing, and able to return to his employment at [the Facility]. He has been seeking work since the termination of his employment in an effort to mitigate his loss.”

[122] The outline filed on behalf of the Company says:

“[The Company] was satisfied, following an investigation and disciplinary hearing that:

(a) On 1 July 2009 the applicant, as first responding officer, breached correctional safe work practice in that he entered the cell of an inmate (Inmate ‘D’) prior to a CERT attendance;

(b) On 16 July 2009 the applicant used force on an inmate (Inmate ‘C’) that was not warranted, contrary to procedures, and in the circumstances contravened the company’s Code of Conduct.”

[123] The submission went on to say that there was a valid reason for the termination of Mr M’s employment, that he was notified of the reasons for his dismissal and he was given an opportunity to respond to the allegations in relation to his conduct.

[124] “The applicant seeks to rely upon his long and dedicated service with the respondent. The respondent accepts that the Tribunal may have regard to an applicant’s service, but contends that the applicant’s service record does not render the decision to dismiss the applicant an unfair dismissal.”

Oral Submissions

[125] Both parties made oral submissions which included citations from relevant case law. I have paid regard to the oral submissions and to the case law referred to therein.

Conclusions and Findings

[126] Mr M’s employment was terminated on the basis of two incidents of alleged misconduct, albeit with the payment of five weeks wages in lieu of notice. As the Applicant’s conduct is the reason given by the Company for the termination, I have to determine for myself whether the impugned conduct occurred and, if so, whether it amounted to a valid reason for termination of employment. In this regard I respectfully agree with the following observations of the Full Bench in King v Freshmore (Vic) Pty Ltd 112:

“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[127] In Container Terminals Australia Limited v Toby 113, a Full Bench of the Australian Industrial Relations Commission said: “In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable…”114

[128] Northrop J in Selvachandran v Peteron Plastics Pty Ltd 115 said:

“In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, ….”

[129] In Qantas Airways Ltd v Cornwall 116, the Full Court of the Federal Court said:

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”

[130] In Edwards v Justice Giudice 117, Moore J said:

“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.”

The 1 July 2009 Incident

[131] The focus of the investigation into the 1 July incident was initially on the issue of the possible use of excessive force on the prisoner. Mr M was exonerated on that ground and the focus on him then moved to the question of his entry into the cell.

[132] Mr M impressed me as a witness of credit and as a bluff and honest man overall. The fact that Mr M entered the cell of Inmate D on 1 July 2009 is not itself at issue. I am satisfied that he genuinely believed on 1 July 2009 that Inmate D was in grave and imminent danger of self harm. In the end, I only have his evidence, his contemporaneous Officer’s Report and that of C.O. RL together with his statements during the Company’s internal investigations of the incidents. From the totality of the material before me, I am satisfied on the balance of probabilities that Inmate D did brandish a disposable razor before Mr M entered his cell. What happened to that razor after the entry by Mr M is unclear. The fact that it is not mentioned in the contemporaneous Officer’s Report is not in my view as significant as made out by the Company. Such reports appear to be produced immediately after incidents and offer only a minimal overview of what occurred. Mr M’s subsequent sometimes contradictory statements during the investigation and disciplinary process appear to me to be largely the product of his attempts to justify his actions in the face of quite intense forensic questioning. Those contradictions are not sufficient to change my view. However, I accept that Mr M no longer worried about the razor when he observed that the prisoner no longer had it in his hand. It is reasonable in my view that Mr M concentrated on restraining the prisoner at this point. The fact that he did not conduct any subsequent search for the razor is unremarkable since he handed over the entire situation to CERT when the team arrived.

[133] Mr RJL’s investigation report states: “[Inmate D]’s inmate profile records ‘at risk of self harm’ alerts dated October 2003 and May 2009. The prisoner presents ongoing management difficulties manifesting in rapid fluctuation of mood and behaviour which health care professionals opine is often, ‘beyond the prisoner’s sense of control’.” The contemporaneous Officer Report by C.M. TH notes that Inmate D committed a series act of self harm in his presence on 1 July 2009.

[134] Mr RJL’s investigation report also states that as a result of the 1 July 2009 incident, Inmate D “was charged with the institutional misconduct offences of Obstructing a Correctional Officer and Intimidation. He was found guilty and awarded 3 days cellular confinement on each count. He was again charged with Intimidation on 11 July 2009 after allegedly making threats on the stentophone to ‘stab’ correctional staff.” I am also satisfied that Mr M’s evidence is truthful that, in addition to the razor incident, Inmate D had engaged in acts of self harm by hitting the walls of his cell with his hands and forearms prior to Mr M’s entry to the cell. Inmate D was incarcerated, in the words of Mr RJL’s report, after he was “convicted of threatening to use a weapon with intent and assault police and has previous convictions for other offences including aggravated burglary and receiving stolen goods.”

[135] What I find remarkable is that it appears to be unexceptional within the Facility for prisoners to have possession of multiple razors on occasion, which they can dismantle to gain access to the two very sharp blades contained therein to use for various purposes, some legitimate, some not. 118 Even more remarkable is the possession of such a razor and possibly multiple razors by a prisoner with a history of violence, attempts at self harm and threats of violence against Facility staff, who is on psychiatric medication.

[136] To allow such a situation to occur was what created great danger not only for the prisoner himself but for Mr M and his C.O. colleagues.

[137] It was put to me by the Company that Mr M’s primary and overriding duty of care was to himself. It was further put to me that he engaged in ‘risky behaviour’ by entering Inmate D’s cell instead of awaiting the arrival of CERT. This may be fine in theory but I can envisage little about the daily duties of a C.O. not involving risk. In the circumstances faced by Mr M, the view he formed that exigent circumstances were such that he should not await the arrival of CERT does not appear to me as unreasonable. He had the support of C.O. RL.

[138] In his evidence, Mr CC agreed in cross-examination that entry to a cell and the subsequent use of force would be justified without following normal procedures: “if an inmate has a history of either self-harm or attempted self-harm and was seen by an officer to be holding something in his hand which could inflict such self harm upon him ...”. Mr CC later said that staff were not expected to be heroes. I am satisfied that the actions of Mr M on 1 July 2009 involved a measure of risk but I can find no fault in that. One can only muse on what would have been the response of the management of the Facility if Mr M had stood by and watched Inmate D self harm while passively awaiting CERT.

[139] In reaching the conclusions contained in the preceding paragraphs, I have had regard to the NSW Department of Corrective Services Custodial Policy and Procedures and to clause 121 of the Crimes (Administration of Sentences) Regulation 2008 (NSW). Mr M’s actions appear to me to fall squarely within the provisions of the Custodial Policy quoted at paragraphs 61-64 supra. Likewise, clause 121 of the Regulation, quoted at paragraph 60 supra, at subclauses 1(g), (k) and (l) envisages and sanctions the type of action taken by Mr M.

[140] Attached to Mr M’s first witness statement 119 was a copy of a letter to him from the Acting Executive General Manager Operations at the Facility dated 4 February 2009. That letter is instructive in any consideration of the Inmate D incident. It says:

“On behalf of [the Company] I would like to commend and thank you for your efforts in relation to a serious incident that occurred at [the Facility] on Friday 23rd January 2009.

Whilst performing your duties as a Correctional Officer an inmate armed himself with a goal [sic] made weapon and attempted to gain access to other inmates in Unit B4 with the intent of seriously assaulting them. Through your selfless actions you ensured that the inmates were secured in a neutral space where the inmate could not gain access to them. Whilst you ensured the safety of the other inmates you exposed yourself to an element of risk of assault by the inmate wielding the weapon.

Your peers, Centre Management and myself recognise your selfless actions as both courageous and professional and as such you are to be congratulated for your efforts during this incident.

The recognition afforded to you is deserved and I look forward to you continuing to complete your regular duties to the standard you have already set for yourself and expected by the organisation.”

[141] All in all, I am of the view and find that there was not a valid reason for the termination of Mr M’s employment based on the Inmate D incident.

The 16 July 2009 Incident

[142] Mr RJL’s investigation report states that: “The inmate has four previous custodial episodes with convictions for assault and related offences against the person and property. The inmate was serving a six month sentence for offences of interfering with a crew member on an aircraft and intimidating a police officer and resisting arrest.”

[143] On 16 July 2009, Inmate C was being moved to segregation following an incident on 13 July 2009 when he was charged and found guilty of a breach of institutional discipline for intimidating C.S. NB. At the time of the move, Inmate C had around two weeks remaining to be served. It appears that the Inmate was happy to make the move but a verbal altercation with Ms NB led to her calling a CERT 1 - Code Blue (Officer Needs Assistance). After the arrival of CERT, the Inmate appears from the DVD evidence to have remained in good spirits and even ‘smiled for the camera’.

[144] When the transfer process was started, normal practice of isolating other inmates from the inmate to be transferred was not followed by C.S. NB. This allowed other inmates to approach Inmate C, have physical contact with him and provide an audience for Inmate C to play up to in his dealings with C.S. NB. C.S. NB then proceeded to inflame matters by engaging in verbal abuse of Inmate C on an almost continuous basis. When she believed that the inmate was not being compliant in following directions, she called a CERT alert.

[145] C.S. NB was the Team Leader at the time.

[146] During the walk to Segregation, the incident occurred which involved Mr M taking Inmate C to the ground. The Company maintains that this action was unwarranted and amounted to abuse of the inmate by Mr M and therefore formed part of a valid reason for the termination of his employment for misconduct.

[147] As noted above, Mr M impressed me as a witness of credit and I believe him when he says that he took action against Inmate C in the belief that the inmate was about to attack or likely to attack C.S. NB. However, I further believe that the incident was avoidable and occurred largely due to the behaviour and lack of professionalism of C.S. NB. It is a mystery to me as to why C.S. NB would be allocated the duty of escorting Inmate C to Segregation when the reason he was going there was because he had engaged in attempted intimidation of her and there was a history of ‘bad blood’ between the two persons.

[148] The need to restrain Inmate C can largely be laid at the door of C.S. NB. Mr M found himself in the position of cleaning up a mess created by her. C.S. NB later thanked Mr M for his intervention. 120

[149] The evidence of all the persons involved in the Inmate C incident together with the contemporaneous Officer Reports, and statements during the investigation process, are consistent in saying that Inmate C made some form of move towards C.S. NB. That move was interpreted by Mr M as being preparatory launching a physical attack on C.S. NB. A close analysis of the DVD evidence however does not support the claim that Inmate C either raised both fists towards C.S. NB or pivoted 180 degrees towards her. I therefore reject that part of the relevant evidence but that conclusion does not materially affect my overall view that Mr M was justified in taking the action that he did.

[150] It appears to me on the totality of the material available to me that, on the balance of probabilities, Mr M made a ‘judgment call’ which was open to him in all the circumstances. His actions do not appear to have been contrary to either Regulation 121 or the Custodial Policy.

[151] The DVD evidence does not show any verbal communication between Mr M and Inmate C during the walk to Segregation and during the taking down of Inmate C. Mr M appears to have only had minimal knowledge of Inmate C prior to the incident and I am impressed by the DVD evidence which shows that Mr M remained calm at all times. This is exemplified in his interaction with another prisoner who approached the mesh-enclosed walkway from the outside garden area while Inmate C was being restrained. Mr M spoke to the approaching prisoner in a calm and measured tone, telling him to: “Go away, [name of prisoner], go away, just go away.” After Inmate C was restrained, Mr M assisted in escorting him the rest of the way to Segregation in a calm and professional manner. There were further comments from outside the walkway from other prisoners, to which Mr M did not respond. He appears to have acted professionally in getting Inmate C to Segregation as soon as possible. Inmate C was essentially unharmed in the incident.

[152] All in all, I am of the view and find that there was not a valid reason for the termination of Mr M’s employment based on the Inmate C incident.

[153] I now turn to the question of whether the dismissal of Mr M was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering harshness etc. It provides:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.”

[154] In Byrne v Australian Airlines 121, McHugh and Gummow JJ of the High Court said:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[155] The question of valid reason is dealt with above. It is apparent from the materials and evidence that Mr M was notified of the reason for the termination of his employment. It is further clear on the materials and evidence that he was given an opportunity to respond. The size of the employer’s enterprise is a factor which is likely to have impacted on the procedure followed in effecting Mr M’s dismissal. On what is before me, I conclude that the Company is a large operation with access to advice internally on industrial relations matters. This would have impacted significantly on the procedures followed by the Company in effecting the dismissal of Mr M.

[156] I now come to the disparity in the treatment of Mr M and C.S. NB in the light of my comments and findings above.

[157] Mr RJL’s investigation report makes serious findings against C.S. NB. However, the transcript of her disciplinary hearing on 2 October 2009 122 has a totally different tone to the hearing regarding Mr M. Early in the C.S. NB hearing Mr RJL said, apparently addressing all those present: “Specifically you will note that this prisoner had attempted to intimidate and had engaged in intimidating behaviour towards the supervisor and during interview with the supervisor was granted and explained how this had affected her personally and it was a significant factor which adversely affected her behaviour on this day. That’s [unclear] which needs to be pointed out. There are a number of ... In relation to the findings about the management of the escort process can you also be aware of some changes managerially that have been made to provide some greater oversight which perhaps organisationally was lacking at the time.”

[158] The disciplinary interview was conducted in a non-adversarial manner. The tone strikes me as being more in the nature of a counselling interview.

[159] The end result of the disciplinary process for C.S. NB was a letter dated 16 October 2009 to her from the General Manager of the Facility. 123 The decision contained in that letter makes findings against C.S. NB concerning permitting Inmate C access to other prisoners during his transfer and inappropriate communication with the inmate. The letter goes on to conclude:

“Having regard to the seriousness of the matters, I have decided that disciplinary action should be taken against you.

In terms of mitigation, I am aware that you have limited experience as a supervisor. I also accept that the sense of intimidation experienced by you precipitated your actions/reactions regarding the Inmate. In addition, I note your contrition offered from the very beginning of the present process.

My decision, then, is that you receive a Written Warning. This warning will be placed on your personnel file.

I consider that you should receive refresher and/or further training. I will make separate arrangements with a member of the senior management team at the Centre in relation to your further training in this regard (which do not need to be included in this Decision).

In light of the above, you are required to ensure in the future that you consistently exercise appropriate standards of conduct in relation to all aspects of your role and that you observe all requirements of the Company’s Code of Conduct.

It should also be noted that, if you are involved in any other incident/s resulting in disciplinary action against you, your future employment will be at risk.”

[160] By contrast, the disciplinary interview of Mr M appears almost prosecutorial. The disparity in outcomes for Mr M and C.S. NB is stark. It appears to me to be perverse of the decision maker to decide that Mr M’s employment should be terminated but C.S. NB should only be issued with a warning letter. No appropriate emphasis was placed by the decision maker on the causal relationship between the behaviour of C.S. NB and the action taken by Mr M. On the evidence and materials available to me, if the investigation process had ended with the termination of Ms B’s employment over her role in the Inmate C incident, I would have found it unsurprising.

[161] Disparity in the treatment of different persons has been dealt with in several decisions of the Tribunal and its predecessor. In Sexton v Pacific National (ACT) Pty Ltd 124, Vice President Lawler said:

“It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been “harsh, unjust or unreasonable”. In National Jet Systems Pty Ltd v Mollinger 125 the Full Bench concluded that in the particular factual circumstances it was appropriate for the member of the Commission at first instance to have regard to different treatment afforded to another employee involved in the same incident.126”

[162] All in all, given my findings above, particularly that Mr M did not misconduct him during the Inmate D and Inmate C incidents and that there was no valid reason for the termination of his employment, I am satisfied that the termination of his employment was harsh and unjust and I so find. I am influenced in making that finding also by the disparity in treatment between Mr M and C.S. NB, Mr M’s long period of employment at the Facility, his age and his employment prospects. I have not been influenced by Mr M’s disciplinary record which had apparently been expunged and then re-vivified for use in these proceedings. In any event, the two matters contained in that record which are critical of Mr M bear no relation to the types of incidents considered in this decision. Likewise, I have paid no regard in my decision making to the DVD evidence other than that which relates to the Inmate D and Inmate C incidents. The other DVD evidence was not able to be placed in a proper context except to show that prisons are by their nature violent and unpredictable places for everyone involved.

[163] Section 390 of the Act provides:

“390 When FWA may order remedy for unfair dismissal

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) FWA may make the order only if the person has made an application under section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[164] In all the circumstances of this case, reinstatement is in my view both practical and desirable. Mr M seeks reinstatement and I find that reinstatement is an appropriate remedy in this case. My assessment of Mr M and his conduct is that he is quite capable of resuming his duties as a C.O. at the Facility. He has shown no rancour towards Facility Management and I believe that the employee/employer relationship can be re-established provided that there is goodwill on both sides.

[165] Section 391 of the Act provides:

“391 Remedy - reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

[166] In summary, I find that there was no valid reason for the termination of Mr M’s employment and I further find that his dismissal was harsh and unjust. I find that he should be reinstated to his former position at the Facility with full continuity of employment for all purposes including wages from the date of his termination of employment until the date of his reinstatement.

[167] An order reflecting this decision is in PR502860.

COMMISSIONER

Appearances:

J Davis of the Liquor, Hospitality and Miscellaneous Union for the Applicant.

S Meehan, of Counsel for the Company.

Hearing details:

2010.

August 9, 10, 11.

September 3.

Exhibits Davis 2 and Davis 3.

2 Transcript PN351.

3 Transcript PN359.

4 Transcript PN377.

5 Transcript PN483.

6 Transcript PN484.

7 Transcript PN485.

8 Transcript PN499.

9 Transcript PN503.

10 Transcript PN520.

11 Transcript PN521.

12 Transcript PN522.

13 Transcript PNs535-536.

14 Transcript PNs577 and 580.

15 Transcript PN629.

16 Transcript PN630.

17 Transcript PN676.

18 Transcript PN679.

19 Transcript PN702.

20 Transcript PN708.

21 Transcript PN719-720.

22 Transcript PN734.

23 Transcript PN743.

24 Transcript PN744.

25 Transcript PN757.

26 Transcript PN762.

27 Transcript PN770.

28 Transcript PN949.

29 Transcript PN990.

30 Transcript PNs993-994.

31 Transcript PN996.

32 Transcript PN1002.

33 Exhibit Davis 11.

34 Transcript PN1052.

35 Transcript PN1053.

36 Transcript PN1105.

37 Transcript PN1107.

38 Transcript PN1126.

39 Transcript PN1129.

40 Transcript PN1130.

41 Transcript PN1136.

42 Transcript PN1139.

43 Transcript PN1149 and following.

44 Transcript PN1178.

45 Transcript PN1190.

46 Transcript PN1282.

47 Transcript PNs1251 and 1255.

48 Transcript PNs1259-1261.

49 Transcript PN1262.

50 Transcript PN1263.

51 Transcript PN1264.

52 Exhibit Davis 12.

53 Transcript PN1309.

54 Transcript PN1312.

55 Transcript PN1315.

56 Transcript PN1323.

57 Transcript PN1341.

58 Transcript PNs1392 and 1393 and following.

59 Transcript PN1400.

60 Transcript PN1409.

61 Transcript PN1420.

62 Transcript PN1435.

63 Transcript PN1438.

64 Exhibit Davis 13.

65 Transcript PN1463.

66 Transcript PNs1479-1480.

67 Transcript PN1486.

68 Transcript PN1512.

69 Transcript PN1513 and following.

70 Transcript PN1519.

71 Transcript PN1532.

72 Transcript PN1535.

73 Transcript PNs1553 and 1555.

74 Transcript PN1571.

75 Transcript PN1577.

76 Transcript PN1586.

77 Transcript PN1587.

78 Exhibit Meehan 1.

79 Transcript PN1749.

80 Transcript PN1763.

81 Transcript PN1772.

82 Transcript PN1777.

83 Transcript PN1780.

84 Transcript PN1810.

85 Transcript PN2294.

86 Transcript PN2307.

87 Transcript PN2309.

88 Transcript PN2311.

89 Transcript PN2312.

90 Transcript PN2313.

91 Transcript PN2334.

92 Transcript PN2337.

93 Exhibit Meehan 4.

94 Transcript PN2433.

95 Transcript PN2447.

96 Transcript PN2448.

97 Transcript PN2449.

98 Transcript PN2528.

99 Transcript PN2530.

100 Transcript PN2585.

101 Transcript PN2589.

102 Exhibit Meehan 3.

103 Exhibit Davis 10.

104 Exhibit Davis 9.

105 Exhibit Davis 1 (Part 1).

106 Attachment RL3 to Exhibit Meehan 4.

107 Attachment RL4 to Exhibit Meehan 4.

108 Attachment RL5 to Exhibit Meehan 4.

109 Attachment RL1 to Exhibit Meehan 4.

110 Attachment RL2 to Exhibit Meehan 4.

111 Exhibits Davis 16 and Meehan 7.

112 Print S4213, 17 March 2000.

113 Print S8434, 24 July 2000.

114 Ibid at para 15.

115 (1995) 62 IR 371 at 373.

116 [1998] FCA 865.

117 [1999] FCA 1836.

118 Samples of such razors were put into evidence as Meehan 2.

119 Exhibit Davis 2.

120 Ibid.

121 (1995) 185 CLR 410.

122 Exhibit Davis 14.

123 Exhibit Meehan 5.

124 PR931440.

125 Giudice J, Polites SDP and Gregor C, 18 March 1999, Print R3130

126 ibid at [25] - [27]. See also Serco Gas Services Pty Ltd v Alkenamde, per Ross VP, Polites SDP and Hingley C, 21 June 1999, Print R6090 at [6]

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