Mr Rod Sean Jellyman v Serco Group Pty Limited (Serco)
[2021] FWC 2098
•15 APRIL 2021
| [2021] FWC 2098 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Rod Sean Jellyman
v
Serco Group Pty Limited (Serco)
(U2019/10349)
DEPUTY PRESIDENT LAKE | BRISBANE, 15 APRIL 2021 |
Application for an unfair dismissal remedy – application dismissed.
INTRODUCTION
[1] Mr Rod S Jellyman (Mr Jellyman or the Applicant) has applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). In short, Mr Jellyman alleges that his dismissal from his employment with Serco Group Pty Limited (Serco or the Respondent) is unfair.
[2] Throughout proceedings, Mr Jellyman has been represented by his father, Mr Rodney H Jellyman (the Applicant’s representative). The Applicant’s representative is a lawyer admitted to practice in Queensland, although is not being paid for his representation of Mr Jellyman.
[3] Initially, Serco was represented by Mr Brendan Smith, Assistant Director People and Capability, Southern Queensland Correctional Centre (SQCC). After an unsuccessful conciliation and referral for arbitration, Mr Paul Brown, Partner of Baker & McKenzie, filed the appropriate notices and commenced his representation of Serco.
[4] Both parties required permission to be represented by a lawyer. 1 The fact that both parties sought permission to be represented is not sufficient to grant permission. I granted both parties permission to be represented because I was satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. The case being run by the Applicant involved consideration of the interaction between various pieces of legislation, Serco’s policies and the Applicant’s contract of employment. The Respondent’s reply to those propositions required a determination as to their relevance to the jurisdiction granted to the Commission in these matters. These issues gave rise to complexity. I was of the view that the assistance of lawyers would enable the matters to be dealt with more efficiently.
[5] The matter was heard over two days on 29 and 30 September 2020. Following receipt of transcript, written closing submissions were provided by both parties.
BACKGROUND
[6] Without making any findings of fact, and without intending to be a complete chronology or background, it is helpful to summarise the basic documentary evidence concerning the dismissal.
[7] By way of letter dated 1 June 2018, Serco suspended Mr Jellyman from his employment. That letter has the subject line of “Suspension from Employment” and states:
“We have received information which alleges that you used excessive force during an incident with a prisoner. I hereby formally suspend you from employment with immediate effect, pending the outcome of a formal investigation.”
[8] The letter is under the hand of Mr Mark Walters, Director, SQCC. The letter goes on to give some information concerning the investigation, confidentiality and other administrative matters.
[9] By letter dated 17 July 2019, and following the investigation into the alleged incident, Mr Jellyman was directed to attend a show cause meeting. That letter is lengthy, but the pertinent parts can be extracted as:
“I write to inform you that I have been delegated to manage the actions following the investigation into your conduct on 16 March 2018. I require that you attend a show cause hearing with myself and Assistant Director People and Capability, Brendan Smith at 1000hrs on Thursday 25 July 2019 in the conference room in the Demountable.
This meeting follows on from the investigation undertaken by Mr Nick Rowe. You were interviewed a part of this investigation on 26 July 2018. The findings of the investigation are:
• The evidence supports the allegation that Mr JELLYMAN used excessive force by pushing Prisoner White’s face into the door of the Detention Union;
• The evidence supports the allegation that Mr JELLYMAN used excessive force by pushing Prisoner White’s head to the floor and holding him down;
• The evidence supports the allegation that Mr JELLYMAN used excessive force by pushing Prisoner White’s head against a steel fence;
• Due to the comments to Correctional Supervisor Hulete at the conclusion of the incident, when Mr Jellyman told CS Hulett that he was going to report the incident as he (Mr Jellyman) had ‘lost it’ in the cell. This would clearly indicate that he (Mr JELLYMAN) was aware he had used excessive force.
Serious Misconduct
The findings are of a very serious nature and amount to serious misconduct. I am satisfied that you have breached Serco Codes of Conduct and policies…
[a number of extracts are included from the Serco Code of Conduct and SQCC Code of Conduct]
Decision by Serco
I am satisfied that your actions constitute serious misconduct. I now require that you show cause as to why your employment should not be terminated for serious misconduct. Serco will consider your responses at this interview, as well as any new relevant documentation, so as to make a fully informed decision. You will have the opportunity to request we take into account any factors raised by you in mitigation of a penalty Serco may take against you.
After listening to your responses, Serco will reach a decision as to what action to take.”
[10] Mr Jellyman provided a “Response and Submissions” document in respect of the show cause meeting. I will deal with this document more fully below. For now, it is sufficient to record that by letter dated 26 August 2019, Serco determined to dismiss Mr Jellyman. That letter states:
“Further to our meeting on 30 July 2019 concerning your conduct, I can provide the following summary
Allegation
That you used excessive force by pushing [Prisoner W] into the door of the Detention Unit
Finding
I reject your response to the allegations. You have stated that [Prisoner W] was being disruptive. The CCTV footage reveals [Prisoner W] as being compliant whilst being handcuffed and led to the Detention Unit by custodial staff. [Prisoner W] becomes disruptive and non-compliant after you state to him, words to the effect of “I’ll send you to Maryborough with the other sex offenders.”
You have stated “On arrival at the DU RJ re-engaged with [Prisoner W] pushing him against the door to gain compliance with the reprimand using reasonable force as provided for under Section 143 of the Act as the staff present did not seem to be able to control [Prisoner W].” This statement is not supported by the CCTV footage which reveals that [Prisoner W] was compliant and had placed his head against the door prior to you pushing his head into the door. Additionally the CCTV footage reveals that the staff present had the prisoner under control.
I am not satisfied that you were required to have any intervention in the incident with [Prisoner W] as there were 4 Custodial Officers, 1 Custodial Supervisor and 1 Dog Squad Officer and GP Dog present and they had the prisoner restrained and under control for the duration.
On that basis I am satisfied that your actions breach Serco’s Code of Conduct, namely: [section relating to bullying, harassment and violence is extracted].
I am also satisfied that your actions breach the SQCC Code of Conduct, namely: [sections relating to respect for others and teamwork are extracted].
Allegation
That you used excessive force by pushing [Prisoner’s] head to the floor and holding him down.
Finding
I reject your response to the allegations. You have stated “While [Prisoner W] was against the wall he became agitated and banged his head against the wall. RJ grabbed hold of [Prisoner W] and told him to stop banging his head and pushed [Prisoner W] down to the floor of the unit spine and held him flat on the floor to stop him banging his head and self-harming.” The CCTV footage does not support your assertions and at no stage does [Prisoner W] bang his head on the wall or the floor. The CCTV footage does not support any reason for you to push [Prisoner W’s] head to the floor.
I am satisfied that this is an unnecessary use of force and that your actions breach Serco’s Code of Conduct, namely: [section relating to bullying, harassment and violence is extracted].
I am also satisfied that your actions breach the SQCC Code of Conduct, namely: [sections relating to respect for others and teamwork are extracted].
Allegation
That you used excessive force by pushing [Prisoner W’s] head against a steel fence
Finding
I reject your response to the allegations. During your interview with Nick Rowe on 26 July 2018 you were shown the CCTV footage of [Prisoner W] in the exercise yard in the Detention Unit. Nick asked you if the prisoner was compliant. You responded that you think he was but he was muttering to himself. You further stated that you recalled using force against the prisoner and that you weren’t going to lie, you lost it with the prisoner.
In your written response you have stated “RJ then gave several lawful directions from the doorway of the yard and when the prisoner failed to comply RJ re-entered the yard and gave [Prisoner W] several lawful directions again to comply, which he failed to do so.” The CCTV footage does not support your assertions and [Prisoner W] was in the process of complying with your instruction to “get on the wall” when you forced his head against the steel fence causing an injury to the prisoner.
I am not satisfied that you were required to have any intervention in the incident with [Prisoner] in the Detention Unit as there were 4 Custodial Officers present and you pushed past 2 of them to use force against [Prisoner W].
I am satisfied that this is an unnecessary use of force and that your actions breach Serco’s Code of Conduct, namely: [section relating to bullying, harassment and violence is extracted].
I am also satisfied that your actions breach the SQCC Code of Conduct, namely: [sections relating to respect for others and teamwork are extracted].
Allegation
That you failed to provide detail of the force used on [Prisoner W].
Finding
On the balance of evidence provided I am reasonably satisfied that you failed to provide detail on the extent of the force used on [Prisoner W]. Whilst you did report the incident to Deputy Director Nick Rowe I am not satisfied that you provided him with sufficient detail of your involvement.
On that basis, I am satisfied that your actions breach Serco’s Code of Conduct, namely: [section relating to bullying, harassment and violence is extracted].
I am also satisfied that your actions breach the SQCC Code of Conduct, namely: [sections relating to respect for others and teamwork are extracted].
Serco considers your behaviours to be serious misconduct. Your behaviours have shown a complete disrespect for another human being, are completely inexcusable and a breach of your professional responsibilities as outlined in your Contract of Employment, the Code of Conduct and your training.
I have therefore determined that your employment is terminated immediately and you are summarily dismissed.”
Initial matters to be considered
[11] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the Application. There is no dispute between the parties and I am satisfied on the evidence that:
a) the Application was made within the period required in s 394(2) of the Act;
b) the Applicant is a person protected from unfair dismissal;
c) the Small Business Fair Dismissal Code is not applicable; and
d) the dismissal was not a case of genuine redundancy.
Procedural history
[12] This matter has had an extended procedural history for reasons which will become apparent.
[13] As I have already indicated, the application was filed on 13 September 2019. The application and accompanying documents were served upon Serco, by the Commission, on 18 September 2019. Serco filed its response, and served it upon the Applicant, on 20 September 2019.
[14] An unsuccessful conciliation conference occurred on 17 October 2019. The following day, the Commission listed the matter for hearing. The hearing was to occur on 16, 17 and 18 December 2019. Directions were issued to the parties for the purposes of preparing for this hearing.
[15] In conformance with those directions, the Applicant filed an outline of submissions and witness statement on 11 November 2019. On 29 November 2019, the Respondent filed an outline of submissions, notice of representative commencing to act, submissions concerning permission to be legally represented and statements of 4 witnesses. A further witness statement was filed on 2 December 2019.
[16] On 9 December 2019, Serco applied to the Commission for an order that Mr Jellyman produce certain documents to the Commission. That order was issued on 9 December 2019 and required Mr Jellyman to produce to the Commission:
“1. A copy of any document that evidences any attempt by the Applicant to obtain employment in the period 26 August 2019 to 9 December 2019.
2. A copy of any document received by the Applicant in response to any attempt by the Applicant to obtain alternative employment in the period 26 August 2019 to 9 December 2019.
3. A copy of any document, including bank record and/or payment receipt, with respect to any income including wages or salary and/or financial benefits of any description received by the Applicant in the period 26 August 2019 to 9 December 2019.
4. A copy of any document evidencing any contract of employment and/or offer of employment for the provision of the services of the Applicant of any description in the period 26 August 2019 to 9 December 2019.
5. A copy of any medical report, medical opinion, medical assessment or certificate that supports the Applicant’s allegation that he continues to be treated for PTSD as referred to at paragraph 84 of the Applicant’s statement dated 8 November 2019.”
[17] A mention of the matter occurred before me on 13 December 2019. On the application of the Applicant, the hearings for 16, 17 and 18 December 2019 were vacated because of Mr Jellyman’s health. The matter was set down for hearing to occur on 23 January 2020.
[18] On 16 January 2020, the Applicant again applied for the hearing to be adjourned on the basis of his ill health. In support of that application, the Applicant’s representative provided the Commission with an email that had been sent to him by Mr Jellyman. The email from Mr Jellyman to his representative is dated 14 January 2020 and stated:
“Hi Dad, here is a copy of my sick certificate from my GP. I have had to get an increase in my medication, as such I have been given a few weeks off from attending any hearings to see how the I go with the medication change. I will be reviewed again after 31 January. Rod”
[19] Attached to that email is a document headed “MEDICAL CERTIFICATE” issued by a Dr Lekatsas at Curtis Medical. Curtis Medical appears to be a general practice. The medical certificate is dated 14 January 2020 and states:
“This is to certify that Rod Jellyman was seen at this practice on Tuesday, 14 January 2020.
In my opinion he has a medical condition and will be unfit to attend any court appearances or hearings from Tuesday, 14 January 2020 to Friday, 31 January 2020 inclusive.”
[20] Also sent to the Commission, was an email from the Manager, Right to Information and Privacy, of Queensland Corrections. That email, dated 14 January 2020, was originally sent to Mr Jellyman, requesting further time for the Department to comply with a freedom of information request that Mr Jellyman appears to have made to the Department. As with his medical certificate, Mr Jellyman sent that correspondence to his representative and stated:
“Hi Dad,
QCS has not got the right to information yet and they are after another extension (as per the email below). this will slow down our processes again. Are we happy for this? or do we need to complain and ask why this is taking so long?
Rod”
[21] On 19 February 2020, the Applicant’s representative made an application for an order that Serco produce to the Commission:
“Reporting to Queensland Correction Services (“QCS”):
Copies of contract obligations to report incidents to QCS as contained in the Serco Contract with QSC, KPIs and the Queensland Corrective Services Incident Reporting Directive applicable at the date of the incident giving rise to the dismissal.
Internal Reporting Policy for Incidents:
Copy of such Serco’s policy.
Serco Policy for Dealing with Excessive Force:
A copy of the Policy for “Dealing with Excessive Force” and the “Learning and Disciplinary Programs” (‘the programs’) as referred to in evidence given by Mr Anthony Voss (“Voss”) at the Crime and Corruption Commission of Queensland – Task Force Flaxton Hearing on 21 May 2018 (“Flaxton Hearing”)
Copies of correspondence and notes made by any member of Serco or their advisors in applying the policy and the programs to the Applicants situation and the decision to dismiss.
Walters and Decision maker’s – compliance with policy:
All documents generated and considered in making the decision to terminate the Applicant’s employment including any legal advice received by Serco either internally or externally.
1.1.5 Delegation of Reasonable Force:
A copy of the “Instrument of Limitation of Corrective Services Officers’ Powers” as issued by the Commissioner of Corrective Services (“Commissioner”) from time to time under the Corrective Services Act (Qld) (“Act”) in respect of ‘Authority to use Reasonable force’.
Advice received from any source as to why the Applicant’s actions were not covered by the delegation and the provisions of the Act.
Any declaration made by the Commissioner to the effect the Serco Code of Conduct took precedent over declarations made under the Act.
Notifications to Violence Reduction Coordinator “VRC”:
A copy of the VRC’s review of the use of force incident.
Recording of the incident leading to the Applicants Dismissal on IOMS, with the Ethical Standards Unit, CSIU and CMU:
Copies of the records including the dates.
QCS “Use of force” strategy and “Excessive Force Policy”:
Copies of documents setting out the strategy and policy as provided to Serco during its period of management of SQCC.”
[22] That order was issued and documents were produced by Serco. A dispute arose between the parties as to the disclosure of certain documents to the Applicant on the basis of relevance. The documents not in dispute were produced to the Applicant. A conference was convened to determine the production dispute relating to the remainder of the documents. That conference occurred on 15 April 2020 in the absence of the Applicant but with his representative in attendance.
[23] A further directions conference was convened on 2 July 2020, at the request of the Respondent’s representative. Following this, further directions were issued and the matter was set down for hearing.
[24] There were further disputes between the parties concerning the production of documents, opposition to the production of documents, the playing of CCTV footage in hearing, opposition to the playing of CCTV footage in the hearing and the calling or otherwise of witnesses that the Applicant, or his representative, considered that Serco ought to have called. I note that despite initial objections to the playing of the CCTV footage, the CCTV footage was viewed in the hearing with the consent of all parties.
[25] The hearing did proceed on 29 and 30 September, with appropriate accommodations to account for COVID-19. Directions were set for the filing and exchange of written submissions after the production of transcript.
Applicant’s submissions and evidence
Amended outline of submissions
[26] In its amended outline of submissions, the Applicant sets out the following ten submissions:
• Mr Jellyman, as Accommodation Manager, was authorised by law to use reasonable force (submission 1); 2
• There was no valid reason for dismissal as the Applicant complied with the Corrective Services Act 2006 (Qld) and to the extent that Serco’s policies were inconsistent with the Act they are unenforceable (submissions 2, 3 and 4);
• Mr Jellyman has previously conducted himself in a similar manner in similar circumstances and had never been warned that such behaviour could lead to dismissal (submission 5);
• Mr Jellyman continued to discharge his normal duties, including contact with prisoners, until his suspension (submission 6);
• Mr Jellyman was denied procedural fairness by being made to participate in an interview while on sick leave, suffering from PTSD, under the influence of a prescribed drug and without the benefit of being provided all CCTV and audio etc (submission 7)
• Under the heading of “opportunity to respond to any reason related to the capacity or conduct of the person”, Mr Jellyman submits that he was not provided with a copy of the various investigation reports or statements of witnesses (submission 8);
• An objective and arms-length investigation was not conducted (submission 9); and
• The decision-maker did not keep an open mind throughout the decision-making process (submission 10);
[27] At hearing, the Applicant’s representative stated the submission more succinctly as:
“Our argument is not about that forced was being used. We are arguing about the legality and the powers that he is given to use the force.”
[28] Until shortly before hearing, Mr Jellyman has sought that he be reinstated to his position. The claim for reinstatement was abandoned prior to hearing with the amended claim to:
“…suitable compensation…along with notification to Queensland Correction [that] the termination was NOT lawful.” 3
Statement of Rod Sean Jellyman
[29] Mr Jellyman lives with his partner and daughter. He jointly owns his residence with his partner and has a “substantial” mortgage, for which he has had to seek special consideration from his bank. At the time of his statement in these proceedings he had not been able to secure employment in a “permanent position”.
[30] Mr Jellyman has worked in corrections since 1998 and has held various positions since then. At the time of his dismissal, Mr Jellyman was the Head of Secure Accommodation.
[31] The incident giving rise to Mr Jellyman’s dismissal occurred on 16 March 2018. At this time Mr Jellyman had a broken left hand. His hand was in a plaster cast. Mr Jellyman complains that even though Serco were aware of this, they still required Mr Jellyman to have contact with prisoners.
[32] As Mr Jellyman was on his way to the morning supervisor’s meeting, a “Code Yellow” was called, meaning that a prisoner was out of bounds and acting suspiciously. Mr Jellyman states that his experience is that when a prisoner is out of bounds, they are either engaging in, or about to engage in, illegal activities. Mr Jellyman states that he was aware that the prisoner in question was Prisoner W. Mr Jellyman suspected Prisoner W of supplying drugs to other prisoners.
[33] Several correctional officers and supervisors attended the Code Yellow. By the time Mr Jellyman attended, Prisoner W had been detained by staff. Prisoner W was being disruptive. Mr Jellyman says that the behaviour “causes riots and other disruptive conduct by prisoners who can hear what is occurring.”
[34] An instruction was given to remove Prisoner W to the Detention Unit. Prisoner W became abusive and threatening to Mr Jellyman. Mr Jellyman says that he “reprimanded” Prisoner W for his behaviour “bearing in mind Section 20 of the Corrective Services Act 2006 (Qld)” which provides for the circumstances in which an officer may give a direction to prisoners
[35] Prisoner W continued to be abusive and threatening to Mr Jellyman. Mr Jellyman “attempted to disengage” and de-escalate the situation, but Prisoner W’s conduct continued. As Prisoner W was escorted the 20 or 30 meters to the Detention Unit, he continued to “disobey the reprimand and to be threatening and abusive to [Mr Jellyman]”.
[36] In his sworn statement, Mr Jellyman recounted the events as follows:
“On arrival at the DU I re engaged with [Prisoner W] pushing him against the door to gain compliance with the reprimand using reasonable force as provided for under Section 143 of the Act as the staff present did not seem to be able to control [Prisoner W].
A Copy of Section 143 of the Act is attached to this statement as EXHIBIT H.
[Prisoner W] was escorted to cell 3 in the DU and on arrival placed on the wall so the door could be opened and the yard could be searched to ensure there were no weapons or contraband present, as another prisoner was in the cell.
While [Prisoner W] was against the wall he became agitated and banged his head against the wall.
I grabbed hold of [Prisoner W] and told him to stop banging his head and pushed [Prisoner W] down to the floor of the unit spine and held him flat on the floor to stop him banging his head and self-harming.
I believed the use of this reasonable force on [Prisoner W] was justified under Section 243 of the Act in particular subsection (3).
I helped staff present to stand [Prisoner W] up and put him in the cell.
I again disengaged from the situation.
I stood by and watched the Staff attempting to do a removal of clothing search, [Prisoner W] was being non-compliant and continuing to direct his abuse and threats at me which could be heard by all staff and prisoners in the DU.
I stayed back from the cell to try and de-escalate the situation, this was not successful with [Prisoner W] continuing to be abusive and failing to comply.
I then gave several lawful directions from the doorway of the yard and when the prisoner failed to comply I re-entered the yard and gave [Prisoner W] several more lawful directions to comply, he failed to do so.
Reasonable force was then used by me on [Prisoner W], consisting of [Prisoner W] being turned around and pushed against the steel fence to gain compliance, [Prisoner W] continued to resist and reasonable force was used to hold [Prisoner W] against the fence.
Once control was established involving other staff present I removed myself from the yard.
I noted [Prisoner W] had at some stage sustained a cut to his forehead, staff were instructed to call for medical assistance for [Prisoner W].
It would appear C S Hulett may have reported the incident, I have never seen any such report or any statement made by C S Hulett.
A supervisor present was instructed to raise an incident report.
I conducted a staff debriefing.
On the day I reported the incident to MR ROWE who I understand subsequently viewed on CCTV footage at intel.
After Mr ROWE had reviewed the footage at intel I spoke to him again about the incident. He did not indicate that I faced the possibility of being dismissed, reprimanded, removed from the work environment or being placed on a management plan.”
[37] Mr Jellyman states that he made a file note about the incident, which was appended to his statement.
[38] Mr Jellyman continued to work as normal until 1 June 2018, when he was called to a meeting at which he was instructed that he was immediately suspended from duties. Prior to attending this meeting, Mr Jellyman spoke to Mr Rowe. Mr Jellyman reminded Mr Rowe that he, Mr Jellyman, had reported the incident to him on the day and:
“…that he had reviewed the CCTV footage and he had advised me he was not worried about the incident.”
[39] Mr Jellyman was interviewed by Mr Rowe. The interview was also attended by Mr Smith, who took notes. Prior to the meeting, Mr Jellyman was not warned that he may face disciplinary action because of the incident. He was advised “it doesn’t look good”. Mr Jellyman states that he was distressed and affected by the medication he was under. Mr Rowe was not given a copy of the interview, statements of other witnesses to the incident, the CCTV footage or the audio that accompanied it. Mr Jellyman accepts that he “insisted” that the interview occur without a support person but now considers that decision to be a mistake. Mr Jellyman says he made this mistake under the influence of medication and because of his mistaken belief that his job was not at issue.
[40] On 5 August 2018, Mr Jellyman and Mr Rowe had an exchange of SMS:
“MR JELLYMAN: Hi Nick, how’s everything going?
MR ROWE: Hi buddy, alls good. At the moment I haven’t sent your stuff off as I’ve been discussing things with Tony Voss. I told him about the interview and how honest you were. Brendan has also been talking to HR so hopefully they will see common sense moving forward.
MR JELLYMAN: Hi Nick, what do you think will happen? What does Mr Voss think?
MR ROWE: I’m not sure, but I’ve got them thinking about keeping you in Serco. The longer it takes to get back to CCC, the more chance you have!!!
MR JELLYMAN: Wow, ok that would be great. Let’s hope it gets dragged out.
MR ROWE: Let’s hope so buddy.”
[41] As well as being considered by Serco, Mr Jellyman understands that the incident was also referred to the Queensland Corrections Ethical Standards Unit, the Corrective Services Investigation Unit and the Crime and Corruption Commissioner (the CCC). Mr Jellyman states he has not been contacted by these bodies or been charged with a breach of any law. Mr Jellyman requested copies of the correspondence between Serco and these bodies, but that request was denied by Serco.
[42] A show cause meeting occurred on 30 July 2019. The meeting was brief. Mr Jellyman gave a written response and submissions, “addressed” by his representative (his father). Ms Denise Alexander started to finalise the meeting and advise Mr Jellyman of her determination when Mr Jellyman’s representative suggested that given the nature of the allegations it would be appropriate to obtain legal advice. Ms Alexander continued but, after Mr Smith “whispered in her ear”, Ms Alexander advised that legal advice could be obtained and ended the hearing.
[43] Mr Jellyman’s submissions at the show cause meeting at lengthy, at 18 pages, and were substantially similar to those advanced before me.
[44] Both at the meeting and in the hearing, Mr Jellyman’s submissions commenced by addressing his health. At the hearing, he gave evidence about his health. I will address the submissions and evidence together below.
[45] At the show cause meeting, Mr Jellyman’s representative requested that Serco provide copies of reports and other correspondence with the Department and CCC. As I have indicated above that request was denied.
[46] Mr Jellyman considers that the decision to dismiss him from his employment was pre-determined. Mr Jellyman says that prior to his dismissal, managers were advised that there was an excess of two managers in the centre. In an internal phone listing dated 7 February 2017, Mr Jellyman is shown as holding the position of Head of Secure Accommodation. In an internal phone listing dated 23 July 2019, there is no such position listed and Mr Jellyman is not shown as a member of staff. Mr Jellyman submits that this demonstrates that Serco had already determined to dismiss him from his employment.
[47] Mr Jellyman was notified of his dismissal on 26 August 2019.
[48] At the hearing, Mr Jellyman gave evidence about his health. On 6 June 2018, Mr Jellyman was diagnosed as suffering from Post-Traumatic Stress Disorder (PTSD). This diagnosis was made by Dr Glenys Campbell, a Registered Clinical Psychologist. In what Mr Jellyman describes as a report, and on 24 July 2018, Dr Campbell states:
“Dear Sir/Madam
Mr Rod Jellyman was referred for therapy by his GP on 6 June 2018. He presented with severe anxiety. Mr Jellyman reported that he was under investigation for an incident which involved assaulting a prisoner at the Correctional Centre. Mr Jellyman reported that he deeply regretted this incident and that he was upset with himself for his reaction.
Clinical interviews with Mr Jellyman have revealed that he is suffering from [PTSD]. Mr Jellyman was unaware that he was suffering from this condition as he has always been committed to his work and has reported that his workload had exponentially increased because he was required to “pick up” extra tasks due to staff shortages. He reported that he took much pride in his work and the Company that had employed him.
Mr Jellyman reported that he was involved in a serious incident where a prisoner cut his throat (2017) and he was also seriously assaulted in 1998. He reported that he has recurrent nightmares about this incident, and that he can smell and taste the blood. He reported being severely hyper-vigilant and on guard within work and non-work environments. He reported that he has witnessed many other life threatening situations at work and that a number of his work colleagues have died as a result of varying causes. He is also experiencing a protracted grief reaction.
Noteworthy- Mr Jellyman’s career has spanned 20 years. During this time his work record has been impeccable.
In my opinion Mr Jellyman’s reaction to the incident in which he assaulted a prisoner is likely to have been drive by his PTSD symptomology. Please see over for explanation of PTSD and brain responses.”
[49] The Applicant has not included in the annexures to his witness statement the explanatory document referred to by Dr Campbell. Dr Campbell’s report was provided to Serco on 26 July 2018. Mr Jellyman has been placed on medication.
[50] On 11 July 2018, Mr Jellyman supplied Mr Brendan Smith, Serco Assistant Director of Human Resources, and Mr Rowe, with a medical certificate that advised that Mr Jellyman was unfit to attend work from 3 July 2018 to 3 August 2018. On 20 July 2018, Mr Smith replied to this email, but the Applicant complains that he failed to acknowledge the medical certificate.
[51] Mr Jellyman states that he was interviewed by Mr Rowe and Mr Smith on 26 July 2018. He says that he was showing “signs of distress as part of the PTSD”. Mr Jellyman does not say what signs of distress he was showing or the basis on which he asserts that it was part of the PTSD. Mr Jellyman states that Mr Rowe “appeared to acknowledge” the effects of his PTSD in the following text messages:
“MR ROWE: Hi buddy, well done the other day. It was so hard for you and you did great. As I said, my bit is done now so just text or call if you want a chat.
MR JELLYMAN: Hi Nick, thanks mate. It’s a hard road atm. And I’m really embarrassed about what happened. Thank you for talking to me after the interview it really meant a lot. Rod
MR ROWE: No worries mate. I felt bad for you knowing how much you are beating yourself up.”
[52] Mr Jellyman has attempted to give evidence of what he has called the “medical evidence”. That medical evidence, in Mr Jellyman’s view, suggests that the PTSD developed over time and possibly from as far back as March 1998. I understand that Mr Jellyman makes this statement on the basis of Dr Campbell’s letter.
[53] In 1998, Mr Jellyman was hospitalised for a number of days as a result of a violent assault by a number of prisoners at the Woodford Correctional Centre, which left the sight in one of Mr Jellyman’s eyes at risk.
[54] Following this event Mr Jellyman states:
“On my return to duties at Woodford Correctional Centre I was advised by Managers and Supervisors that in future I was to rely on the provisions of the Act in respect of the use of force on prisoners to protect other officers and myself.
I was advised in brief terms that force could be justified if I did not kill or break bones of a prisoner in circumstances where prisoners failed to follow commands and to cease self-harming.
I was also reminded on numerous occasions that the security of the prison was paramount and all prisoners must be treated forcefully to ensure that security.”
[55] The Applicant accepts that approximately four weeks after his dismissal, he commenced casual employment at a hotel. In the period of late September 2019 to early December 2019, Mr Jellyman earned $10,650.01 from this employment 4 and in the 2019/2020 financial year, earned $30,9485. This total payment included his wages pre-COVID and those accrued after the initial COVID shutdown at the hotel. There may have been additional amounts earnt following this.6
Cross examination of the Applicant
[56] Mr Jellyman also performed several shifts at another hotel prior to the effects of the COVID pandemic being felt. Mr Jellyman received approximately $498 from these engagements. 7
[57] Mr Jellyman received government payments between April to June 2020, 8 totalling approximately $6000.
[58] In July 2020, Mr Jellyman commenced casual employment as a truck driver. This employment commenced on 7 July 2020 and was continuing at the time of hearing. Some documents, although not complete documents, have been produced by Mr Jellyman in relation to earnings from this employment. In the period 7 July to the second week of September 2020 it appears that Mr Jellyman earnt approximately $20,000 from this employment. 9
[59] Mr Jellyman accepts that his position as Head of Operations was a managerial position, 10 that required leadership11 and responsibility.12 That responsibility arose because Mr Jellyman had prisoners in his care13 but also extended to responsibility for his colleagues14.
[60] In relation to his offer of employment, Mr Jellyman accepted:
• He read the whole document when he accepted employment; 15
• He had read clause 19 relating to Serco company policies and the requirement to be familiar with those policies; 16 and
• That the contract dealt with termination without notice including in respect of conduct causing an imminent or serious risk to health and safety or reputation etc. 17
[61] Mr Jellyman was taken to the report of Dr Campbell and the paragraph in which Dr Campbell states her opinion that Mr Jellyman’s reaction to the incident in “which he assaulted a prisoner”. Mr Jellyman does not directly accept that characterisation, but I infer that Mr Jellyman accepted that Dr Campbell could only have gotten information concerning the assault from Mr Jellyman himself. 18 Mr Jellyman conditioned that acceptance on the basis that he “believed that at the time”.
[62] Mr Jellyman was also taken to the material concerning his initial interview with Mr Rowe. Mr Jellyman accepted that Mr Rowe did confirm with him that he was okay to continue with the interview. 19 Mr Jellyman accepted that if it is recorded in the notes then it “must have been what [he] said in the meeting”20. After giving this answer, Mr Jellyman then responded that he could not remember the meeting,21 and that he could not remember all or most of the meeting22. Mr Jellyman does not recall says that he “lost it” with the prisoner.23
[63] The Applicant explained the vagueness in his responses in cross-examination:
“Sorry, what I'm trying to explain to you, and I don't think you understand is, I was on some very heavy medication, sir, so I'm not trying to be a cheeky bugger or (indistinct) anything, I'll answer your question and I'm not going to lie to you. But if I can't recall something I honestly can't recall it. I've lost two years of my life over this and I'm trying to remember things. I nearly lost my relationship, mate, over this, okay? So if I don't recall something I'm not pulling your leg, I'm not trying to pull a swifty, I just won't remember. It's heavy medication which has been changed regularly because it wasn't helping me. So when I say they avoided to take note of the doctor's certificate, which was provided prior to the meeting.” 24
[64] While Mr Jellyman denies or does not recall making a statement to the Prisoner concerning paedophiles, 25 Mr Jellyman does accept that making such a statement could cause a prisoner great alarm.26 Mr Jellyman later accepted:
“Sir, you - I've asked you this question now three or four times and you seem to be moving around a little bit, but on all of the other occasions you - you - - -?---I know I did say I was sending him out, so if you say I said I'd send him to Maryborough, then, yes, I was sending him to Maryborough.
No, sir, I'm not saying, "Send him to Maryborough", I'm saying something much more significant. "I'll send you to Maryborough with the other sex offenders"?---Yes.
You said that, didn't you, sir?---The sex offenders, I don't know if I said, "With the other sex offenders", but I probably said, "With the sex offenders", I'm not too sure. There are sex offenders there, it doesn't mean that the prisoner is a sex offender, just the whole sex offenders. 27
[65] Mr Jellyman accepted that using a phrase to this effect was “possibly” the exact reverse of de-escalating the situation. 28
[66] The confrontation involving the Prisoner was an aggressive discussion and Mr Jellyman was using a “very raised” voice. 29 Mr Jellyman accepts that he used force on the Prisoner.30 The following exchange occurred during cross-examination:
“Sir, you know, don't you, that in circumstances where the prisoner had his back to you, you lunged forward, without warning, you grabbed him by the back of the neck and you forced his head into a metal grate, metal mesh, whatever you want to call it. That's what happened, sir, wasn't it?---I remember pushing him up against (indistinct) head on the wall, that's correct.
When you laid hands on him, sir, your hands came in contact - - -?---(Indistinct) is that - the footage also shows that I had a broken hand at that time, so I only had one hand. Obviously that shows that too, doesn't it? Just asking.
Sir, the Deputy President might have to give you a warning to please answer my questions. Your advocate can answer questions in re-examination, ask questions in re-examination?---(Indistinct reply)
I want you to attend to my question because if we can avoid having to show the footage it might shorten today's proceedings?---Okay.
When I look at the video footage, sir, one thing is very clear to me that at the point of time that you lunge forward the applicant has his back - sorry, I retract that. The prisoner has his back to you, that's correct, isn't it?---I believe so. He was probably ordered to get on the wall and put his head on the wall, hands, I'm assuming.
You're going to have to answer my question. At the point of time that you lunge forward this prisoner is standing with his back to you, yes or not, sir?---Yes, he was.
When you lunged forward and made contact with the back of his neck and you forced his head into the grate or the grill, that was, indeed an assault, wasn't it, sir?---It's authorised and justified. He was given a verbal direction he failed to follow. I'm allowed to use force which is reasonable, which I used. And part of the process, when prisoners are told to get on the wall it means put your hands on the wall and put your head on the wall so they don't move. It makes it safe for them and for other people. That's a common practice.
Sir, I have to put it to you that this was an absolute nonsense, that this was just an assault of a prisoner. I have to put that to you?---No, I don't agree.” 31
[67] Mr Jellyman accepted that he used force, 32 but maintained that he was “controlling the situation”.33 Mr Jellyman did not accept that his conduct was an act of physical violence,34 physical abuse,35 or threatening behaviour.36 The following exchange occurred after these denials:
“Sir, I find this astounding, so I have to put it to you, you seriously tell this Commission that lunging at a prisoner, with his hands on his head from behind, making contact with the back of his neck, and I use the word "ramming" with all of the force that the word conveys, ramming his head into a metal grate was not physical violence? You want to say that, do you?---I've secured his head on the wall, he didn't follow a lawful direction.
And the lawful direction, sir, was to?---Get on the wall.
Sir, he's standing in front of the wall with his face, and I'll stand corrected on it, centimetres away from the metal grate, with his hands on his head, with his legs spread, surrounded by three detention service officers and you want to tell this Commission he was not being compliant?---Yes.” 37
[68] In relation to warning the Prisoner prior to the use of force, the following exchange occurred:
“Mr Jellyman, when you lunged at the prisoner who had his back turned to him you gave him no warning of the fact that you were about to use force. You lunged at him and the first he knew about you making contact with the back of his neck was when your hand struck him on the back of the neck and shoved his head into the metal grate. There was no warning, was there, sir?---It was an active code. I don't have to give a warning in an active code.
Are you saying, sir, that in circumstances where a prisoner is standing with his back to you, with his hands on his head, with three security guards around, or three detention service officers around him, that you are entitled to use force without explaining to him, beforehand, that you intend to use force?---It was told to get on the wall and put his hands on his head, from what I recall. Getting on the wall and putting your hands on your head means hands on your head, head on a wall. That's (indistinct) standing like that. So if he not going to comply with that, then I'm allowed to use force to compel him to follow that.” 38
[69] In relation to his report of the incident, the following exchange occurred:
“And do I assume, sir, that this would have been prepared fairly close to the event?---Around – sometime after the event.
Some time after the event, sir, could be two years. Do you have a particular recollection when you would have prepared this report?---It's dated 16 March, so I'm assuming it was around 16 March.
And that would be the day of the incident, wouldn't it, sir?---Yes, probably the afternoon, I'm assuming.
All right. So do I assume, sir, that if this is the document that marks your account of the events of 16 March, that a document prepared by you on 16 March – the same day – is possibly a more accurate – the most accurate account that you could have given of it?---At that time.
I am reading:
The prisoner then began to argue with staff. On several occasions, the prisoner was ordered to get on the exercise yard wall (place his hands on his head and lean with his forehead on the wall, and spread his legs wider than shoulder width).
Now, you agree with me, sir, that at the relevant time, the prisoner indeed had his hands on his head?---Yes.
He was facing the wall?---Yes.
He was indeed very close to the wall?---He was not on the wall.
He was very close to the wall, with his face?---He was not on the wall, as per my report.
He had his legs spread?---But not wider than (indistinct) apart, I don't believe.
All right. Look at the next words, sir:
Eventually, the prisoner complied
?---So he must have got on the wall, then come off again.
That's your evidence now, is it?---Well, that's what it says, I'm assuming.
We'll read on:
However, as the prisoner was in the process of doing this, he stopped and failed to follow the lawful direction –
and just pausing there, sir. You say he has complied, and then, in the next sentence, you say:
However, as the prisoner was in the process of doing this, he stopped –
what did he stop doing, sir?---He didn't put his head on the wall.
But the sentence above, you said he had complied; he had put his head on the wall?---Well, he obviously moved his head off the wall.
All right. And you go on to say:
And failed to follow the lawful direction. As such, force was used, and the prisoner was placed on the wall.
Just pausing there, sir. You were asked to give an accurate account of what occurred on the day?---Yes.
You would agree with me, sir, that using the words 'such, force was used, and the prisoner was placed on the wall' is manifestly inadequate in describing what had gone on that day?---I disagree.
You don't think, sir, it was relevant to make reference to the fact that you – and again – and I say it deliberately – that you grabbed him by – you lunged at him, and you grabbed him by the back of the neck, and you forced his head into the steel mesh, steel grate, whatever you want to call it?---No, I placed his head on the wall.
You serious tell this Commission that you placed his head on the wall?---Yes.
That's your evidence?---Yes.
Sir, that is – I retract that. I'll be having something to say about that in the submissions. You know that to be incorrect. You, with force, rammed his head into the wall from behind. That's what you did, sir?---That is incorrect, and that's your assumption.” 39
[70] And further:
“I asked the question?---So, the moment he stopped complying, I'm allowed to use force to get him to comply with the order. He stopped complying with the order, so therefore, I used force to put him in the position he was supposed to be in.
I have to put this to you, sir: are you saying that a person who was in a position of compliance, who only moved his head centimetres back from the wall, is now in a state of non-compliance, that allows you, without any warning at all, to lunge forward and grab him by the back of the neck, and thrust his head into the steel grate? Is that what you tell the Commission?---What I'm telling you is that if he moved back, he could have spat on someone, so I placed his head on the wall, to stop him from assaulting anyone.
Sir, how does a person who has his hands on his head, with his back to you, facing the wall, with three guards surrounding him, manage to spit on you?---I've seen it done many times. That's why we get them to place their hands on their head, their heads on the wall, and their legs spread. That's why we get them to do that, so that no one gets hurt, no one gets spat at. Have you ever been spat on? I have. It's the worst thing ever, sir.
There's nothing in any of your evidence about your fear of being spat on by the applicant, is there, sir? Not a single reference to it?---I never said there was.
You've just made that up, haven't you?---No. I haven't made anything up. I never said that Mr Watt was going to spit on me. I said that there was potential that it could happen, because it's happened before, in previous instances, with other prisoners.” 40
[71] Despite having told his doctor to the contrary, Mr Jellyman does not regret his actions or making the statements to the Prisoner. 41 Mr Jellyman thinks that his behaviour on the day of the incident was “fine”42 and demonstrated effective communication skills.43
[72] Mr Jellyman maintains that the Prisoner was threatening to him on the day of the incident. 44
[73] In re-examination, Mr Jellyman stated that he did not hearing himself use the word “paedophile” in the bodycam footage. 45
Respondent’s submissions and evidence
Outline of Submissions
[74] Serco maintains that Mr Jellyman’s application should be dismissed. In the event that the Commission considers that the dismissal was unfair, Serco submits that reinstatement is not appropriate and any award of compensation should be significantly discounted to take account of Mr Jellyman’s misconduct.
[75] Serco submits that the reasons for termination of employment included:
“Breach of Serco’s Code of Conduct with respect to bullying, harassment and violence.
Breach of SQCC Code of Conduct with respect to ‘respect of others’.
Use of excessive force against a prisoner.”
[76] The dismissal, when viewed from Serco’s perspective, was “sound, defensible or well founded”. The Applicant’s behaviour was a breach of Serco policies, had the potential to impact the safety and welfare of the prison and other employees, and justified summary dismissal.
[77] Serco submits that the correct approach to be used in determining whether it is satisfied that there was a valid reason to dismiss involves a determination as to whether the misconduct in fact occurred (it is not necessary to establish ‘serious misconduct’) and is assessed from the perspective of the employer, does not consider the broader context (although context may be relevant in mitigation).
[78] In respect of Mr Jellyman’s specific submissions, Serco submits that the Criminal Code 1899 (Qld) and the Corrective Services Act 2006 (Qld) are of no assistance to the Commission. A ‘valid reason’ is to be determined with reference to the perspective of the employer. The Commission does not need to be satisfied that the Applicant’s actions amounted to a breach of other laws to be a valid reason to dismiss.
Statement of Nicholas Rowe
[79] At the time of making his statement in these proceedings, Mr Rowe is the Prison Director of the SQCC. At the time of the incident involving Mr Jellyman, Mr Rowe was the Deputy Director. Mr Rowe has worked in public and private correctional industries in Australia, New Zealand and the United Kingdom for over 28 years. Mr Rowe commenced employment with Serco in September 2014 and has held various positions in that time.
[80] Mr Rowe gave his evidence concerning 16 March 2018 as follows:
“At approximately 9.10 am on 16 March 2018, just before a management meeting, the Applicant approached me in my office. He said he wanted to discuss something. A discussion then commenced in my office between myself and the Applicant. Upon engaging me in the discussion, it became apparent to me that the Applicant must have been one of the persons who was present at the time of the earlier incident. I recall the Applicant saying to me words to the effect:
“Nick, I lost it with a prisoner.”
I replied:
“Are you all right?”
He said:
“Yeah, I’ll be fine.”
In the conversation, the Applicant did not explain to me what he had done or how he had “lost it”. The conversation went for no more than 60 seconds.
We both them left my office to go to the management meeting that was to start at 9.15 am.
I was not advised at that time that a prisoner has been injured. I was aware that Officer Reports were in the process of being prepared and that the prisoner had been secured in the detention unit. The SQCC has an extensive network of CCTV cameras and I was aware that the incident has been caught on both the fixed CCTV camera and the body cameras of the individuals. I was advised that enquiries were being made and that the CCTV footage was being collected of the incidents.”
[81] Serco notified Queensland Corrective Services of the incident and, in approximately June 2018, Mr Rowe was directed by Mr Walters to conduct an investigation and prepare a report for the ethical standards unit. It also seems that Serco were directed to investigate the incident by the Crime and Corruption Commission (the CCC). The CCC “nominated” four allegations for investigation as follows:
“1. Mr Jellyman – used excessive force by pushing [the Prisoner’s] face into a steel gate;
2. Mr Jellyman – used excessive force pushing [the Prisoner’s] head to the floor and holding him down;
3. Mr Jellyman – used excessive force by pushing [the Prisoner’s] head against a steel fence. It is alleged [the Prisoner] sustained a cut on his face as a result.
4. Mr Jellyman – failed to provide detail on the force used on [the Prisoner].”
[82] Mr Rowe agrees that he spoke to Mr Jellyman before Mr Jellyman entered the meeting at which he was stood down. Mr Rowe recalls that he agreed with Mr Jellyman that he had notified him of the incident on the day but denies that he said to Mr Jellyman that “he was not worried about the incident”.
[83] Mr Rowe met with Mr Jellyman on 26 July 2018. The meeting was also attended by Mr Brendan Smith, Assistant Director for People and Capability. Mr Smith took notes at the meeting; Mr Rowe did not take notes. Mr Rowe has attached Mr Smith’s notes to his statement, which Mr Rowe confirms are consistent with his recollection of the meeting.
[84] During this meeting, the CCTV footage was played in Mr Jellyman’s presence. The footage contained a series of video clips relating to the incident from different sources. The footage was played onto a projector screen and Mr Jellyman was given an opportunity to comment on the footage. Footage from one of the body cameras contained audio and the video and audio were played in Mr Jellyman’s presence. Mr Smith’s notes of that meeting are as follows:
“Nick outlined the background to the interview and the direction provided by the Crime and Corruption Commission.
Nick confirmed with Rode that he was okay to continue with the interview as he (Rod) didn’t have a support person.
Rod stated that no one was available and that he had a medical certificate from his doctor (attached). Rod stated that his doctor had diagnosed him with PTSD.
Brendan advised Rod that the interview did not have to go ahead and that it could be postponed until he was fit to participate.
Rod stated that he wanted the interview to go ahead as he wanted the matter finalised.
Rod was shown the CCTV footage of the [Prisoner] entering the Detention Unit (DU) airlock. Nick stated that it appeared that the prisoner was having a disagreement with someone and asked Rod if he knew who.
Rod stated that he couldn’t recall.
Rod was shown CCTV footage of [the Prisoner] in the DU airlock and Rod appeared to be holding the prisoner’s head against the door. Nick asked Rod what was happening in the footage.
Rod stated that he thought the prisoner was arguing with him but he can’t remember what about.
Rod was shown the CCTV footage of [the Prisoner] being restrained in the DU hallways. Nick asked Rod what had occurred.
Rod stated that he thinks that the prisoner was kneeling on the floor and started to bang his head against the door so Rod took him to the ground to prevent him from banging his head.
Rod was shown CCTV footage of the exercise yard of Cell 3. Nick asked Rod if the prisoner was being compliant.
Rod stated that he thinks he was but he (the prisoner) was muttering to himself. Rod stated that he recalled using force against the prisoner and that that he wasn’t going to lie and that he lost it with the prisoner and he couldn’t recall what the prisoner had said. Rod stated that he observed that the prisoner was bleeding and asked other staff if the prisoner was cut and then he called a Code Blue.
Rod stated that he never had any intent to harm the prisoner.
Rod stated that he placed an officer on the door of the cell to monitor the prisoner’s wellbeing as well as an officer in the DU movement control station to monitor the prisoner on CCTV.
Nick asked Rod what was going on in his life at that point in time.
Rod stated that he had broken his hand which was causing him frustration and that his mother was living in an unsafe environment in Toowoomba and he was regularly travelling to care for her. Rod stated that the increased stated, rebid process and the number of homebrews that were in the centre were all impacting on him.
Rod stated that the number of recent deaths of staff in the centre and having to support staff through it he had not taken time to care for himself. Rod stated that the attempted suicide incident with [name redacted] still played an impact on him. Rod stated that he didn’t realise how much these incidents had affected him until he started to see his doctor.
Rod stated that he has been in the service since January 1998. Rod stated that he was seriously assaulted in March 1998 to the point that he nearly lost an eye. Rod stated that he was promoted to the level of Supervisor with Queensland Corrective Services and moved to a Supervisor role with Serco and was then promoted to the role of Head of Operations.
Rod stated that he has never been investigated before.
Rod was shown the footage from the body-worn cameras.
Rod stated that he could recall the prisoner arguing about paedophiles but didn’t know what he was talking about. Rod stated that he believed that he asked Custodial Supervisor to call for a nurse as the prisoner was bleeding (Radio call is audible in the footage).
Nick read the first allegation and asked Rod if he deemed it was excessive force.
Rod stated that after viewing the footage it (the force) wasn’t needed.
Nick read the second allegation and asked Rod to comment.
Rod stated that he was adamant that he was holding the prisoner’s head down to prevent him from continuing to band his head. Rod stated that he believed that he used appropriate force in this situation.
Nick read the third allegation and asked Rod to comment.
Rod stated that he had stuffed up.
Nick read the fourth allegation and asked Rod to comment.
Rod stated that he believed that his report was accurate from his recollection of the incident at the time of writing the report.
Nick asked Rod if he could recall when he last completed his Control and Restraint training.
63 Completed 3 March 2016.
64 Completed 23 September 2016.
65 Competed 26 September 2016, 26 April 2017.
66 Both completed on 12 April 2018.
67 PN699.
68 PN700.
69 PN723.
70 PN724 to PN726.
71 PN730.
72 PN732.
73 PN735.
74 PN742.
75 PN760.
76 PN768.
77 PN786.
78 PN812 to PN815.
79 PN547 to PN552.
80 PN586.
81 PN550.
82 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.
83 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
84 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
85 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
86 Bista v Glad Group Pty Ltd [2016] FWC 3009.
87 Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744 at [15] per Acton, SDP, Sams DP and Hampton C citing MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000.
88 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
89 For example: PN158.
90 For example: PN161.
91 For example PN169 and PN170.
92 For example PN154; PN219 to PN221; PN229; PN243 to PN244; PN254; PN276.
93 For example PN226; PN233; PN305; PN343; PN378; PN417.
94 For example PN246; PN283; PN380.
95 For example PN326 to PN329.
96 See for example PN241 to PN252; PN433.
97 Corrective Services Act 2006 s.3(1).
98 Ibid.
99 Ibid s.3(3)(a).
100 Ibid s.3(2).
101 Ibid s.143(1).
102 Ibis s.143(1)(a)-(e).
103 Ibid s.143(1)(a).
104 Ibid s.143(1)(e).
105 Ibid s.143(2).
106 Ibid s.143(3).
107 See similar sentiments expressed by the Full Bench in Heading v ACT Government Justice and Community Safety [2020] FWCFB 3660at [47]
108 Criminal Code 1899 (Qld) s.269(1).
109 [2019] FWCFB 2946.
110 Application by R.A.v [2016] FWC 6904; Maxitanis v Department of Justice and Community Safety [2020] FWCFB 4529; Heading v ACT Government Justice and Community Safety [2020] FWCFB 3660.
111 [2020] FWCFB 4529 at [64].
112 Ibid at [55].
113 Ibid at [59].
114 [2016] FWC 6904 at [262].
115 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at paras 70–73, [(2000) 98 IR 137]; Previsic v Australian Quarantine Inspection Services, Print Q3730 (AIRC, Holmes C, 6 October 1998).
116 Statement of Denise Alexander at paragraph 15.
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