[2016] FWC 6904

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr S.
v
Respondent
(U2016/5686)

COMMISSIONER HUNT

BRISBANE, 19 OCTOBER 2016

Application for relief from unfair dismissal.

[1] Mr S has applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by the Respondent.

[2] Mr S commenced his employment with the Respondent in February 2015 performing the functions and duties of a Corrective Service Officer on a permanent, full-time basis. The Respondent is contracted to the Queensland Department of Corrective Services and provides Corrective Service Officers (CSO’s) who perform work inside a correctional centre.

[3] Mr S’s employment was terminated on 7 March 2016 for gross misconduct.

Reasons for dismissal

[4] On 8 February 2016, Mr S was at work where he had a conversation with a prisoner, Prisoner Y. Prisoner Y requested of Mr S access to a cell other than his own to obtain a Scrabble board. After refusing the request, and the conversation becoming somewhat heated, and after an alleged threat against Mr S by Prisoner Y, Mr S directed Prisoner Y into an airlock.

[5] The Respondent determined that the way Mr S physically restrained Prisoner Y, resulting in a 1.5cm laceration to the forehead of Prisoner Y and wrist pain, and in doing so Mr S used unreasonable and unjustified force on Prisoner Y, constituted a serious breach of the Respondent’s Code of Conduct and Ethical Behaviour policy. Furthermore, Mr S had failed to include in a written report of the incident that Prisoner Y had suffered an open wound to his face. The Respondent determined that Mr S, by reason of the omission, knowingly made a false official record.

Hearing

[6] The application was allocated to me for hearing. There were no jurisdictional objections raised by the Respondent.

[7] The matter was heard on 11 and 12 July 2016 in Brisbane. A confidentiality order was issued on 11 July 2016 [PR582649].

[8] Mr S was represented by Mr Dermot Peverill of United Voice. The following witnesses gave evidence and were cross-examined:

Mr S;

Mr Simon Ong, Industrial Officer of United Voice; and

Ms Kylie Muscat, Organiser of United Voice.

[9] The Respondent was represented by Stephen Mackie of Counsel. Leave was granted for Mr Mackie to appear pursuant to s.596 of the Act. The following witnesses gave evidence and were cross-examined:

Prisoner Y;

Mr DS, CSO;

Mr RS, CSO;

Mr AB, former prisoner;

Mr RL, Investigator; and

Mr TI, General Manager.

Corrective Services Legislation

[10] The Corrective Services Act 2006 (Qld) (CS Act) governs how prisons are regulated in Queensland. Section 275 of the CS Act provides that the Chief Executive of Queensland Corrective Services may appoint an appropriately qualified person as a CSO.

[11] Mr S was appointed by the Chief Executive as a CSO. CSO’s have rights, responsibilities and obligations under the CS Act.

[12] The CS Act prescribes when a CSO may use reasonable force on a prisoner. Section 143 of the CS Act is as follows:

‘143 Authority to use reasonable force

143 Authority to use reasonable force

(1) A corrective services officer may use force, other than lethal force, that is reasonably necessary to—

(a) compel compliance with an order given or applying to a prisoner; or

* Example—
* A corrective services officer may use force that is reasonably necessary to compel a prisoner to submit to a search ordered by the chief executive under section 36 that applies to the prisoner.

(b) restrain a prisoner who is attempting or preparing to commit an offence against an Act or a breach of discipline; or

(d) compel any person who has been lawfully ordered to leave a corrective services facility, and who refuses to do so, to leave the facility; or

(e) restrain a prisoner who is—
(i) attempting or preparing to harm himself or herself; or
(ii) harming himself or herself.

(2) The corrective services officer may use the force only if the officer—

(a) reasonably believes the act or omission permitting the use of force can not be stopped in another way; and

(b) gives a clear warning of the intention to use force if the act or omission does not stop; and

(d) attempts to use the force in a way that is unlikely to cause death or grievous bodily harm.

(3) However, the corrective services officer need not comply with subsection (2)(b) or (c) if doing so would create a risk of injury to—

(a) the officer; or

(b) someone other than the person who is committing the act or omission; or

(4) The use of force may involve the use of only the following—

(a) a gas gun;

(b) a chemical agent;

(d) a restraining device;

(e) a corrective services dog under the control of a corrective services officer.’

Respondent policies and procedures

[13] The offer of employment made to Mr S on 13 March 2015 stated that his continuing employment will be conditional upon compliance with the Respondent’s code of conduct for employees. The Respondent’s Code of conduct and Ethical Behaviour Policy (Code of Conduct) defines gross misconduct to include:

‘Assault, fighting and offering or threatening physical violence (which does not include circumstances of a lawful and reasonable application of force or threat of force by a staff member in the proper performance of their duties.’

[14] The Respondent has in place a Custodial Centre Practice Directive (the Directive). The Directive includes instruction to Corrective Services Officers on de-escalation of situations involving prisoners. The Directive explains six elements of de-escalating situations. They are described as follows:

(a) Communicating respect;

(b) Cooperating;

(d) Reframing;

(e) Asserting; and

(f) Disengaging.

[15] Additionally, the Respondent has in force a Control and Restraint Manual. The Manual provides guidance to CSO’s on the use of force. It is recommended that CSO’s maintain a reactionary gap of around 2 metres from potential assailants. CSO’s should also defend by avoidance, subdue using reasonable force, control the prisoner physically and/or psychologically, and verbalise to try and retain the prisoner in the cooperative category.

[16] The Manual directs CSO’s to attempt to calm angry [prisoners], by trying to pacify them in a calm, even voice. CSO’s are encouraged not to lose patience, and guided to remain calm.

[17] At the commencement of Mr S’s employment, Mr S was assessed as competent in Control and Restraint Theory. Mr S correctly identified that verbalisation is an important part of subject control, and the optimal distance to stand from a potentially hostile prisoner is 2 metres.

Evidence of Mr S

[18] Mr S holds a number of qualifications including a Certificate I and III in Security, together with Diplomas in Security & Risk Management, Occupational Health & Safety, and Business.

[19] On 8 February 2016, Mr S commenced work at 6.30am and was approached by Prisoner Y at 9.47am. Mr S had just completed cell access, allowing prisoners to obtain items from their cell.

[20] Prisoner Y appeared to be agitated and was sweating excessively. The following conversation occurred:

‘Prisoner Y: Chief, can I – can I get access to Cell 2. I need to get the Scrabble board out.

Mr S: No I’ve already been down that end twice already. We called cell access, you missed it. So you’re just going to have to wait until the next cell access.

Prisoner Y: That’s fucked, you know. I never ask you for things. I just wanted you know fucking access, and you won’t give me any fucking access.

Mr S: You just have to wait until next access.’ 1

[21] Mr S noticed that other prisoners had ceased their activities and conversations and began to pay attention to the discussion. Mr S directed Prisoner Y into the airlock because of the attention of the other prisoners. Once in the airlock, Prisoner Y said to Mr S, “Fuck this, this is fucked.”

[22] Mr S has described Prisoner Y as yelling and extremely loud when this was said. Other prisoners began to call out abuse to Mr S, calling to him, “You dog, you are a maggot.” Some were yelling, “Go on” to incite Prisoner Y’s non-compliance.

[23] Inside the airlock, Mr S said to Prisoner Y, “Calm down, what’s the problem? You need to watch the way you speak to officers and start showing more respect.”

[24] Prisoner Y replied, “Fuck you, I have been here longer than you have.” Prisoner Y and Mr S were facing each other within the airlock. They were approximately one arm’s length away from each other.

[25] Mr S tapped on the window to the Officer’s Station. Another CSO, Mr DS released Mr S and Prisoner Y from the airlock so they could return to the unit.

[26] When Prisoner Y re-entered the cell block, he said, “Fuck you cunt, you better watch your back.” In response, Mr S activated a Code Yellow (non-compliant prisoner) on his hand-held radio. Other prisoners were still yelling and screaming, “Go on”.

[27] Mr S directed Prisoner Y back into the airlock by saying, “Get into the airlock”. Upon entering the airlock, Mr S said to Prisoner Y, “Head on the window, hands on your head, spread your legs back.” Mr S was following standard operating procedures requiring a prisoner to be directed to place their head on the wall.

[28] Prisoner Y said, “Fuck this, this is fucked.”

[29] Mr DS left the Officer’s Station and entered the airlock to hand to Mr S a set of handcuffs. In leaving the Officer’s Station to provide the handcuffs to Mr S, Mr DS was breaching a procedure. It is Mr S’s evidence that Mr DS is obliged to remain in the Officer’s Station.

[30] Mr S turned around to face Mr DS to obtain the handcuffs. Once the doors to the airlock were closed, it is not possible to hear anything within the airlock clearly if you are outside of the airlock.

[31] The standard operating procedures required the handcuffs to be applied, and for that reason, Mr S said to Prisoner Y that he was applying the restraints, and said, “Lower your right hand behind your back then lower your left hand behind your back until both hands are secured.”

[32] While trying to apply the handcuffs, Prisoner Y said to Mr S, “This is a fucking joke. I have been here for fucking ages.”

[33] While Mr S was waiting for responding officers to the Code Yellow, Prisoner Y became agitated and came off the wall. He faced Mr S and said, “Fuck you cunt, I will fucking smash you.”

[34] Mr S applied reasonable force by placing his left hand on Prisoner Y’s right shoulder, and right hand on Prisoner Y’s left shoulder as he was facing Mr S, and Mr S turned him anticlockwise to face back on the wall.

[35] Prisoner Y did not comply with Mr S’s request to face the wall and resisted Mr S. He continued to turn around to face Mr S. Mr S did not notice any cut to Prisoner Y’s face.

[36] After the area was secured, another CSO, Mr RD arrived, and together they walked Prisoner Y to the medical centre. Mr S walked behind Prisoner Y and he did not notice any cut to Prisoner Y’s forehead.

[37] Mr S returned to the unit at approximately 10.30am and commenced preparing an officer’s report of the incident. He was interrupted at this stage by a manager who wanted to interview him briefly about the incident.

[38] When Mr S first commenced employment with the Respondent, he made detailed written reports, when required. He was later informed that his reports were too detailed and he should adopt a more brief approach to reports.

[39] The Officer’s Report completed by Mr S on 8 February 2016 is as follows:

‘At approximately 0947 hours, I had just completed Cell Access when prisoner [name] approached me and asked if I could get the scrabble game board out of cell 2. I informed Mr [name] that “I have just completed Cell Access and have already been down in the vicinity of cell 2 twice, so no”.

Mr [name] instantaneously became irate and extremely abusive towards me because I had said no.

I then directed Mr [name] into the unit airlock where I informed him that his behaviour would not be tolerated and reaffirmed the unit rules and his code of conduct towards officers.

As Mr [name] made his way back into the unit, he again became verbally abusive and threatening towards myself, I then activated a Code Yellow – non-compliant prisoner and directed Mr [name] into the unit airlock.

Once inside the airlock Mr [name] was then directed to turn around and face the window as I was about to apply mechanical restraints to which he did not comply, reasonable and necessary force was used to control and restrain Mr [name] until the mechanical restraints were applied and responding officers arrived.

Mr [name] was then escorted to the Medical Centre where he was assessed and remained.

I returned to my normal duties, nothing further to report.’

[40] Mr S was interviewed by Mr RL, Investigator on 12 February 2016. The interview was electronically recorded. Mr S was asked why he pushed Prisoner Y if the prisoner was compliant. Mr S considers that he felt pressured during the interview, with the conclusion that excessive force was a fact, not an inquiry.

[41] On 1 March 2016, Mr S was informed in writing of his requirement to attend a disciplinary panel hearing on 3 March 2016, which he attended with a support person.

[42] On 7 March 2016, Mr S was informed by telephone that his employment was terminated. This was also confirmed in writing.

[43] Since the dismissal, Mr S has attempted to obtain work in the security industry. Mr S did commence casual work in security on 17 May 2016, earning approximately $400 per week less than during his employment with the Respondent.

[44] Mr S seeks reinstatement to his former position.

Evidence of Mr S during the hearing

[45] Mr S had not been shown the CCTV footage of the incident prior to the dismissal. The first occasion he viewed the footage was during the hearing.

[46] Mr S’s evidence is that after watching the footage, he can see that when he was trying to apply the handcuffs, Prisoner Y was struggling. Ms S considers that Prisoner Y was trying to turn around from his position facing the window in order to talk to Mr DS. After repeatedly directing Prisoner Y to face the wall, and him refusing, Mr S used reasonable force to turn him back around to face the window. 2

[47] Prisoner Y commenced turning around from approximately 9:47:29. 3 Mr S agrees that assistance was shortly given by other CSO’s, but at the time during the incident, it seemed like a long time.4

[48] A female CSO walked through the airlock and questioned Mr S as to whether he was OK; he answered that he was. In evidence in-chief, Mr S stated that Prisoner Y was physically compliant at this time, but verbally abusing Mr S at the same time.

[49] In cross-examination, Mr S agreed that CSO’s are trained to de-escalate a situation, and Mr S stated that he was attempting de-escalation. The Respondent took Mr S to the transcript of the interview between Mr S and Mr RL, where Mr S said to Mr RL, “I was shouting too” 5 and “So you know, we were both shouting.” 6 Mr S stated that he was trying to de-escalate the situation, but his voice was raised.

[50] The Respondent asked Mr S how is it that sound could not travel from the airlock to outside, yet Mr S reportedly heard prisoners outside of the airlock yelling things such as ‘dog, maggot and go on’ on the first occasion while they were in the airlock together. Mr S stated that a number of prisoners had been up against the airlock yelling these things. Mr S said this was frightening. 7

[51] Very shortly after the first occasion that both men were in the airlock, Mr S released Prisoner Y back into the unit. The Respondent asked Mr S if this would strike him as perhaps dangerous, to which he disagreed, stating that he had assessed the situation. 8 Mr S agreed that he hadn’t written this into his report on the same day of the incident, nor in the interview with Mr RL.

[52] It is Mr S’s evidence that while Prisoner Y had faced the window when he was directed to, and been handcuffed, it was his failure to remain facing the window that resulted in Mr S forcibly having to return him around to face the window. Mr S stated that when Prisoner Y commenced to ‘come off the wall’, Mr S was giving him verbal direction to remain with his head on the wall.

[53] Mr S was asked if he disagreed with the evidence of Mr DS that he heard a thud when Prisoner Y’s head hit the wall. Mr S disagreed with the evidence of Mr DS. 9

[54] Another CSO, Mr RD’s evidence is that when he entered the airlock, he noticed that Prisoner Y was bleeding from the head and was calm, but that Mr S was very angry. Mr S disagreed with this statement.

[55] Mr S agreed that Mr RD was trying to initiate a conversation with Prisoner Y when he first entered the airlock. He disagreed with the evidence that he pushed Prisoner Y’s head into the wall so as to prevent Mr RD from speaking with Prisoner Y. 10

[56] It was put to Mr S that he had pushed Prisoner Y through doors on the way to the medical clinic. He disagreed with the evidence of Mr RD.

[57] Mr S denied that when in the medical clinic, he was directed by another CSO, Mr MV to leave because the situation was under control within the medical clinic. 11

[58] The following evidence was given with regard to whether Mr S noticed the cut to Prisoner Y’s forehead at the medical clinic:

‘Mr Mackie: You disagree. Now your evidence is that you didn’t actually see the injury to [Prisoner Y] at all. Is that right?

Mr S: Yes.

Mr Mackie: That’s why you didn’t report it?

Mr S: That’s correct, yes.’ 12

[59] Mr S was asked during the hearing to review the transcript of the interview with Mr RL. Mr S agreed that he answered that he noticed while at the medical clinic that Prisoner Y was bleeding. 13

[60] The following questions were put and answered in cross-examination:

‘Mr Mackie: If you turn to page 23, we won't - there's no need to read it out again but you can see down the bottom of page 23, continuing over to page 24, you refer to the scratch again. The scratch on his face. So you refer to it twice in this interview?

Mr S: Yes.

Mr Mackie: Is it still your evidence that you didn't see the injury at the time?

Mr S: Well, during the - look, during the interview I was under pressure.

Mr Mackie: So you said you saw things you hadn't seen?

Mr S: Well, I didn't have a clear recollection of the incident, no.

Mr Mackie: So you thought you saw something you didn't see?

Mr S: Because like I said - like because I wasn't provided with reports or anything during the interview. 14

Mr Mackie: But you're standing by your version of events today which is that when you filled out your report, you didn't know there was an injury. Is that right?

Mr S: Yes, yes.

Mr Mackie: Could [Mr S] be shown TI2, which is the interview - his disciplinary hearing. Could you turn to page 12 please? You'll see that you've got a chunk of text there about two thirds of the way through which begins, "Yes, because I didn't actually". You state - why don't you read for us actually from "Yes, because I didn't actually", just read that out loud?

Mr S: “Yes, because I didn't actually" -

Mr Mackie: Keep going

Mr S: “I wasn't actually aware that he had a cut on his head because you know after I turned him around he remained facing the wall. So I was standing behind him, just waiting for the response team to arrive. When they arrived the team leader told me to take him away, take him to medical and I escorted him from behind, like you know the escort hold. I didn't realise that until I got to medical and then we took the cuffs off and then I saw it.’ 15

[61] Mr S denied that following the incident, he returned to the interview room and spoke with Mr AB (who was a prisoner at the time) and said to him, “You have seen nothing, hey, you have seen nothing.” 16

[62] In re-examination, Mr S stated that he considered that Prisoner Y was not his ‘usual self’ on the day of the incident. Mr S’s evidence is that there may have been illegal drug activity within the unit on the day of the incident, and he had raised this possibility with Mr RL during his interview. 17 Mr S stated in re-examination that Prisoner Y “seemed like he was very – like he was high on something”.

[63] Mr Peverill asked Mr S in re-examination when he first became aware that Prisoner Y had sustained an injury to his forehead. Mr S answered:

‘I wasn't aware of it in the airlock. Even during the escort I wasn't aware of it because I always remain behind the prisoner. When we got to medical I remained behind him because he was sitting in a chair and then - yes, that was pretty much - I didn't really - wasn't really aware - wasn't really that aware of it.’ 18

Evidence of Ms Muscat

[64] Ms Muscat is an Organiser at United Voice. Prior to commencing as an Organiser, Ms Muscat was a CSO at the same correctional centre the subject of this application. Ms Muscat did not work with Mr S.

[65] It is Ms Muscat’s opinion, based on her knowledge of the CS Act, where reasonable direction is given to a prisoner and that direction is not observed by the prisoner, then that is considered ‘non-compliance’ by the prisoner. The CSO is then authorised by the CS Act to use reasonable and necessary force to ensure compliance with the direction. The use of force and the amount of force used always depends on the circumstances.

[66] There may be up to 50 prisoners present in the unit, patrolled by a single CSO on the unit floor. In circumstances where a prisoner is using threatening language and/or exhibiting physical resistance to complying with a direction, the use of reasonable force to ensure compliance is justified.

[67] In evidence during the hearing, Ms Muscat stated:

‘If you’ve gone from bringing that prisoner into the airlock, you start to give them an instruction to calm down or whatever the situation may be, if they turn on you then you give them an instruction to get on the wall. If they refuse that instruction you can give that instruction again. If they continue to refuse, if you feel you are at risk then you call that code, you continue to give that instruction. If the prisoner comes towards you then you can use whatever reasonable force you deem necessary at that point in time to keep yourself safe.’ 19

[68] In cross-examination, Ms Muscat agreed that CSO’s are taught to de-escalate situations. 20

Evidence of Mr Ong

[69] Mr Ong is an Industrial Officer at United Voice. Mr Ong’s evidence was largely to his views of the CCTV footage of some part of the incident.

[70] At 9:46:56 of the footage, Prisoner Y can be seen facing Mr S within the airlock. Following this, Mr S is handed the handcuffs. It is Mr Ong’s account having reviewed the footage very carefully that after being handed the handcuffs, there is a short struggle between Prisoner Y and Mr S of between 2-4 seconds. It is Mr Ong’s impression that this occurred between 9:47:28 and 9:47:32 on the footage, and Prisoner Y’s face may be seen at 9:47:30. 21

[71] Mr Ong’s account of the footage is that it is slightly grainy, but there does not appear to be blood pouring from Prisoner Y’s forehead. 22

Evidence of Prisoner Y

[72] Prisoner Y was, at the time of the incident on 8 February 2016, a 47 year old prisoner. His evidence is that for the past 29 years he has been in and out of gaol, and imprisoned for approximately 19 years in total across the 29 years. He had never hit a CSO.

[73] Within hours of the incident on 8 February 2016, Prisoner Y completed a post-Assault/Sexual Assault Incident questionnaire. The handwritten statement made by Prisoner Y is as follows:

‘Sore left hand and forehead cut
Sore left hand and cut on forehead
Handcuffs too tight, and office slammed my head into wall of airlock
Officer caused injury by slamming my head against the wall
I asked the officer to unlock my cell and he just went off’

[74] On 16 February 2016, Prisoner Y was interviewed by Mr RL. The interview was electronically recorded and a transcript admitted into evidence.

[75] Prisoner Y answered that he didn’t know Mr S very well. He thought that he had only been in the unit in which he was placed for around one week. 23 He did, however, consider that he had a decent understanding with Mr S as they would tend to speak to each other each day. I understand this conversation is on a transactional basis, but not on an overly friendly basis.

[76] It is Prisoner Y’s evidence that he asked Mr S for access to another inmate’s cell to obtain a Scrabble board. The request was made politely. The following conversation occurred:

‘Mr S: Listen. Fuck off. I’m not opening the cell; I’ve just been down there. You think I’m your fucking bitch or something?

Prisoner Y: Look, no need to talk to me like that. I’m only asking a simple question mate, you don’t have to talk to me like that.

Mr S: Listen you maggot, fuck off or you can get into the air lock and we’ll sort it out in there.

Prisoner Y: What are you talking about mate? What’s all this? You’re just turning on me mate. I’m only asking you can you get the Scrabble board out of the cell. That’s all I’m asking.’

[77] Prisoner Y could not understand why Mr S was acting this way, and considered that perhaps he had a problem with somebody else and was taking his frustration out on him.

[78] Mr S said to Prisoner Y, “Right, get in the airlock you fucking maggot.” Once in the airlock, Prisoner Y said to Mr S:

‘Come on [name], is there any need for this? I’m going next door today. What am I doing in the air lock? What are we doing? I’m not a little child, [name]. There’s no pep talk here. I’m nearly 50 years old. Don’t worry about the Scrabble board, we’ll leave it at that.’

[79] By ‘going next door’, Prisoner Y had been informed around 10 minutes earlier by Mr DS that he was to be interviewed to move to another unit; a more favourable unit in the type of work that could be performed by inmates.

[80] Following this exchange, Mr S said to Prisoner Y, “You can go now.”

[81] Mr S tapped on the Officer’s Station window to Mr DS so that Mr DS would open the air lock. As Prisoner Y was leaving the airlock, Mr S said to him, “You fucking maggot.” Prisoner Y responded, “What the fuck are you on about, man?”

[82] Mr S said to Prisoner Y, “Right get back in the fucking air lock.” Prisoner Y did not immediately follow Mr S into the air lock. He went to a table a short distance away where he had earlier made a coffee. He had a sip of his coffee in order to calm down as he was concerned with Mr S’s reactions. He was concerned that Mr S was going to do something to him. Mr S was standing at the entrance to the air lock and gave Prisoner Y the signal to return.

[83] Prisoner Y put his coffee down and walked into the air lock. The door was then locked. The conversation occurred as follows:

‘Mr S: Listen here you fucking piece of shit, don’t you ever fucking talk to me like that again in front of the other fucking prisoners. You’re a fucking piece of shit, do you hear me? And if you fucking ask me for anything again today I’ll fucking lock you up in the [indecipherable] you piece of shit, right?

Prisoner Y: Don’t talk to me like that [name]. Look fucking – mate, I don’t know what the fuck’s your problem, but you’re attacking......

Mr S: Right get up against the wall you fucking piece of shit.’

[84] A Code Yellow was called at this time.

[85] Mr S spun Prisoner Y around to push him up against the window between the air lock and the interview room. Prisoner Y’s account of the action of forcing him against the window is as follows: 24

‘I was spun around and, and he smashed my head up against the window – well he had hold of the back of my head and he was trying to – I could tell by the force that he had on the back of my head hat he was trying – going to put my head practically through that – that’s what he wanted to do, was smash my head into that window. So I was pulling back on his force – of the force in his hand, trying to force me into the window. It was like a tug of war trying to stop my head getting smashed into the window.

[My head] went bang. It hit fairly hard and I said, “[name] are you right mate? You’re going to split my head open, easy mate, fair dinkum”. He said, “You maggot” and then he did it again. And the second time did my split my head.’

[86] There was blood on the window. The dialogue continued:

‘Prisoner Y: There you go; you’ve split my head. You’ve achieved what you wanted to do, are you happy now? There you go, tough man, are you happy now?

Mr S: Shut your mouth maggot. I’ve called a code get your hands behind your back.’

[87] Mr S was holding both of Prisoner Y’s hands behind his back with one hand, and he used his other hand to get to the cuffs. Prisoner Y did not struggle. The dialogue continued:

‘Mr S: I’m cuffing you, put your hands behind your back.

Prisoner Y: They’re behind my back, [name]. You know they’re behind my back. What are you on about mate?’

[88] Prisoner Y considered it an odd situation. He wondered if Mr S was doing some exercise on him. He considered it a ‘crazy’ situation. The cuffs were tightly put on his wrists.

[89] Mr RD then arrived. Prisoner Y was still up against the window, but his head was not flush up against it. Prisoner Y recalls Mr RD saying to Mr S, “[name], [name], it’s OK mate, it’s OK. Let’s open the door.” Mr RD then said he would take Prisoner Y to medical.

[90] On the way to the medical room with Mr S and Mr X, Prisoner Y said, “[name], you’ve split my head open. You’re going to have to take me to medical, my head is split and I’m going to have to get something done about it.”

[91] As the party arrived closer to medical, Mr S was trying to force Prisoner Y’s hands higher where it was becoming uncomfortable. The conversation continued:

‘Prisoner Y: Righto [name], you’ve got me cuffed, you’ve got my hands up. You’re trying to break my arms, is that what you’re trying to do now?

‘Mr S: Shut your mouth. Just shut your mouth you maggot.’

[92] Having entered the medical room, Mr S guided Prisoner Y to the wall where there was perspex, and directed him to put his head up against it while the door was opened. The conversation continued:

‘Mr RD: Yeah OK, easy [Mr S], easy.

Prisoner Y: Oh mate, you’re doing it again. You’ve already split my head open once, you’re going again are you? OK fine. You’re, you know, whatever. Tough guy.’

[93] Prisoner Y’s head remained up against the window. Nurses within the medical unit requested Mr S remove his cuffs. This was requested two or three times. Mr S sat Prisoner Y on a chair and did not remove the cuffs. The conversation continued:

‘Prisoner Y: Can you take the cuffs off [name]?

Mr S: Shut your mouth.

Prisoner Y: Can you take the cuffs off?

Mr S: Shut your mouth.

Nurse: Can you take the cuffs off him, we need to have a look at him.’

[94] Prisoner Y’s account is that Mr S was behind him while Prisoner Y was seated in the chair. Mr S held in a wrist lock that he didn’t think that anybody else in the room could see due to Prisoner Y being seated.

[95] After the cuffs were removed nurses inspected his wrists. Another CSO in the medical unit, Mr MV said to Mr S, “Righto, [name], we’ve got it from here mate. You can go back to the unit now. We’ve got it.”

[96] At the medical room, Prisoner Y’s account is that Mr RD said to him words to the effect, “I tried getting him [Mr S] away from you but he would not leave you. He didn’t want to – he was, he was staying with you that was all there was to it.”

[97] Prisoner Y’s account to Mr RL is that he was not resisting Mr S, and he did everything he was asked to do by him.

[98] It was put to Prisoner Y by Mr RL in the investigation meeting that he may have cut his own forehead with his long ‘pinky’ nail on his left hand. Prisoner Y responded, “No, that’s crazy. Why would I cut my own head with my own nail? Yeah. I’m not...a psychopath.”

[99] After being seen by the nurses, Prisoner Y was then directed to wait in the waiting room. A CSO informed him that he would not be returning to the A1 unit.

[100] Prisoner Y was breached over the incident and moved to Unit B2. A supervisor said to Prisoner Y that he should not have been breached until an investigation was complete. A breach hearing was conducted prior to an investigation being completed however no action was taken against Prisoner Y with respect to the incident.

[101] Prisoner Y was not allowed to move into the desired A2 unit. Prisoner Y learned that the police had reviewed the incident but would not be taking the inquiry any further; that is, Mr S would not be charged with assault.

[102] At the commencement of giving evidence-in-chief during the hearing, Prisoner Y said he wished to make it clear that his evidence is that he was first handcuffed by Mr S, and after that time the injury occurred. Prisoner Y’s written statement was amended so that it read: 25

‘[Mr S] directed me into the airlock. [Mr S] called for a code for non-compliant prisoners, then held my arms back and handcuffed me from behind, so that my hands were behind my back. [Mr S] pushed the back of my head so that my forehead struck a window. I complained to [Mr S] at that time about my injury to my forehead.’

[103] In cross-examination, Prisoner Y was asked if he was directed by Mr S to turn around, put his hands behind his back and he was going to be handcuffed. He answered that he was told to turn around and put his hands behind his back, but not that he was going to be handcuffed. However, he said that he knew that he was going to be handcuffed because that is the normal procedure.

[104] Prisoner Y was asked if he had ever been directed into the airlock by a CSO for a containment reason. He answered that he had not. 26

Evidence of CSO DS

[105] Mr DS is a CSO with nine years’ service.

[106] On 8 February 2016, Mr DS was in the Officer’s Station. The interview room has one door which leads into the airlock.

[107] The airlock is a room of approximately 2m x 3m. It is used to control access to the unit. It has four doors:

One to the outside of the unit leading to the walkway;

One which leads to the floor of Unit A1;

One door which leads to the interview room; and

One door which leads to a short corridor that leads to the Officer’s Station.

[108] Only one of the four doors can be opened at any time.

[109] While in the Officer’s Station, Mr DS heard and saw Mr S talking to Prisoner Y. They were both talking very loudly, although he could not understand what was being said.

[110] Mr DS saw Mr S call Prisoner Y into the airlock. Mr DS opened the door to the airlock remotely from the Officer’s Station. The door to the airlock opened and Mr S pulled it open.

[111] Prisoner Y entered the airlock as directed. Mr S pulled the door shut which makes it automatically lock. The two then argued loudly. Mr DS put himself in a position where he could see through into the airlock as he was concerned about the two arguing and he wanted to see if assistance was required.

[112] Mr DS was standing in the hallway and could hear that Prisoner Y wanted Mr S to grant him cell access, which was refused. Prisoner Y was standing back from Mr S and raising his voice, but he was not threatening in any way. Mr S was becoming angry and tense. Mr DS cannot recall the exact words that Prisoner Y used, but did not consider him to be threatening or abusive.

[113] Mr S told Prisoner Y to leave, and Mr DS opened the unit door of the airlock.

[114] Prisoner Y returned to the floor of Unit A1. Mr S then said to Prisoner Y, “What was that?”, and called Prisoner Y back into the airlock.

[115] Mr DS observed that Prisoner Y returned to the airlock as directed. Prisoner Y looked a bit angry, and he stood back from Mr S, but was not threatening or abusive. Mr S was getting angry and tense. Mr S directed Prisoner Y to face the wall and he called a Code Yellow.

[116] Prisoner Y complied with Mr S’s instruction to turn around and face the wall. After Prisoner Y had turned around, Mr S then pushed Prisoner Y’s face into the window by pushing Prisoner Y’s head, using his right arm to push the back of Prisoner Y’s head. Mr DS heard Prisoner Y’s forehead hit the surface of the window. There was some force in that action from Mr S.

[117] Mr S grabbed an arm of Prisoner Y. Mr DS opened the Officer’s Station door and gave handcuffs to Mr S. This is part of the response when a Code Yellow is called.

[118] Mr DS left the airlock, shut the door and pressed buttons to allow other CSO’s into the airlock.

[119] Prisoner Y was compliant with Mr S’s instructions and there was no basis to use force against Prisoner Y. He did not physically resist Mr S.

[120] Mr DS did not notice blood on the window.

[121] Mr DS did not hear any other prisoners during the incident ‘yelling and screaming’ as stated by Mr S. It is Mr DS’s evidence that if that had occurred, he would have heard voices of those prisoners.

[122] Mr DS disagrees with the evidence of Mr S with respect to Prisoner Y having come off the wall in the airlock and facing Mr S. It is Mr DS’s evidence that Prisoner Y remained facing the wall, where his head was pushed by Mr S into the wall.

[123] On the same day, Mr DS completed an Officer Report Form. Mr DS did not report any injury to Prisoner Y in the report.

[124] Mr DS was interviewed by Mr RL on 17 February 2016. At the point where Mr S directed Prisoner Y to turn around and face the wall, Mr DS reported that there had only been loud voices, but Prisoner Y had not appeared to have been threatening.

[125] After a Code Yellow was called, Mr S pushed Prisoner Y’s head into the window. Mr DS heard Prisoner’s Y head contact the window. Mr DS handed to Mr S the handcuffs and quickly shut the door to return to the Officer’s Station. Mr DS wanted Mr S to have the handcuffs and not him, as he needed to be in the Officer’s Station.

[126] Mr DS did not see Mr S handcuff Prisoner Y as he was busy opening doors to allow other CSO’s access. He did not observe any injury to Prisoner Y’s forehead, nor did he see blood. He was accessing a book and started to write the incident up.

[127] Mr DS considered that there could have been other ways to deal with the incident. Mr DS stated that he would have attempted to calm Prisoner Y down and have a discussion with him later.

[128] In cross-examination, Mr DS agreed that his Officer’s Report of the incident failed to report any alleged excessive force used by Mr S.

[129] Mr DS agreed that his evidence demonstrated that Prisoner Y was arguing with Mr S about cell access while in the airlock. Mr DS could not hear precisely what was said between the two. His evidence is that both Prisoner Y and Mr S were angry. 27

[130] I asked a number of questions of Mr DS. I questioned him as to why he had not put in his report anything with respect to Prisoner Y’s head coming into contact with the wall? Mr DS answered:

‘I didn't actually see his head hit the wall. All I heard - all I saw was [Mr S] put his hand on his head. As I walked away, I heard a thud. I don't know whether Mr S pushed his head on the wall or whether he head butt the wall.’ 28

[131] I asked why his written evidence was that he had seen Prisoner Y’s head hit the surface of the window? Mr DS said that his best recollection was that he saw Mr S with his hand on Prisoner Y. In re-examination, Mr DS stated that it was Mr S’s hand on Prisoner Y’s head. 29 As Mr DS walked away to let other officers in, he heard a thud.30

Evidence of CSO RD

[132] Mr RD is a CSO with 20 years’ service at the correctional centre the subject of this application. Mr RD has known Prisoner Y for the full period of 20 years of employment as it is uncontested that Prisoner Y has been in and out of the correctional centre for this period of time.

[133] Mr RD has never seen Prisoner Y in an aggressive state.

[134] On 8 February 2016, Mr RD responded to a Code Yellow being called, and arrived at the airlock in Unit A1. Mr RD entered the airlock where he saw Prisoner Y being mechanically controlled by Mr S. Mr S was using his left arm to hold onto Prisoner Y’s shoulder, and his right hand was holding Prisoner Y in a wrist lock.

[135] Prisoner Y was facing the wall and the handcuffs had been applied so that Prisoner Y had his hands cuffed behind his back.

[136] Prisoner Y was facing the interview room, and when he turned around, Mr RD observed blood coming from his forehead. Mr RD saw a small patch of blood on the window of the interview room.

[137] Mr RD observed that Prisoner Y was calm. Mr S appeared to be angry, both in presentation and speech. Mr RD did not consider that Prisoner Y was resisting Mr S.

[138] Mr RD asked Prisoner Y, “What’s going on?” When Prisoner Y turned his head to answer Mr RD, Mr S pushed Prisoner Y up against the wall, stopping the conversation. In answering a question of the Commission, Mr RD agreed that the force used by Mr S on this occasion was reasonable. 31

[139] Mr S announced that they were going to go to the medical unit. Mr RD was concerned with the situation and announced that he would be coming along too. Mr RD had wanted to inform Mr S that he alone would take Prisoner Y to the medical unit, but Mr S already commenced moving the prisoner along and they were, by this stage, out of the airlock.

[140] On the way to the medical unit, Prisoner Y said to Mr MD, “I didn’t want any of this.” Mr RD responded, “Listen mate, I – I don’t know what happened, I don’t know how it happened. I’ve got nothing to say, I can’t say anything.”

[141] During the medical examination, Mr RD observed Prisoner Y’s left wrist was red and he had a small split on his forehead.

[142] While in the medical clinic, Mr RD had a conversation with another CSO, Mr MV and requested that he remove Mr S from the area as Mr S appeared aggressive and angry. Mr RD observed Mr S push Prisoner Y roughly through the doors on the way to the medical clinic.

[143] Mr RD’s Officer’s Report is scant. It records the following:

‘At approximately 0956 hours I attended unit A1 because an alert code yellow was called upon the centre radio system. I arrived in the A1 unit airlock, CSO [Mr S] had [Prisoner Y] secured. I then assisted CSO [Mr S] to escort [Prisoner Y] to medical for assessment.’

[144] In cross-examination, Mr RD stated that he would never allow a prisoner access to another prisoner’s cell because of allegations of theft. 32

[145] I questioned Mr RD as to why he hadn’t included Mr S guiding Prisoner Y’s head to the wall in his report, including noticing blood and Mr S’s rough treatment of Prisoner Y through to the medical clinic. He answered that he had been at the medical clinic for a long time, and when he returned he had a lot of duties to report. He forgot to include it in his report and was pushed for time.

[146] I inquired if he had been subject to disciplinary proceedings for not completing his report of the incident correctly. Mr RD said no, but he may well be as a result of the evidence given by him.

Evidence of Mr AB

[147] Mr AB was, at the time of the incident on 8 February 2016, a prisoner held on remand at the correctional facility. Mr AB had been charged with a number of serious criminal offences, including fraud and dishonesty. 33

[148] At the time of the hearing, Mr AB had recently been released from gaol, free of all charges. He attended the hearing without the requirement of an order of the Commission.

[149] Mr RL interviewed Mr AB on 17 February 2016 in relation to the incident. During the morning of 8 February 2016, Mr AB was in the interview room next to the airlock. Mr AB heard the following conversation:

‘Prisoner Y: [to Mr S] Do you mind getting a Scrabble board out?

Mr S: I’ve already fucking been down there.’

[150] The following conversation was inaudible, and Mr S then directed Prisoner Y to the airlock. The following conversation then took place:

‘Mr S: You’re being smart, you’re being smart.

Prisoner Y: I’m being polite to you, I’m always polite and courteous to you, maybe that’s what I want, to get a little bit back.

Mr S: No, you’re being a smart young cunt, you’re being a smart young cunt.

Prisoner Y: No, whatever [and walked out of the airlock].

Mr S: [name], you’re a piece of shit.

Prisoner Y: What’s all this about?’

[151] A Code Yellow was called. Mr S told Prisoner Y to put his head against the wall. Mr AB was sitting in front of a computer in the interview room. He looked up and saw Prisoner Y with his head against the wall.

[152] Mr S said something to Prisoner Y, but Mr AB could not hear this. Prisoner Y had his arms by his side, perhaps behind his back, and turned around to face Mr S and said something Mr AB could not hear.

[153] Mr S said to Prisoner Y, “You’re being a fucking smart boy, turn around, turn around.” Mr S then smashed Prisoner Y’s head into the glass.

[154] Mr AB heard Prisoner Y’s head hit the wall, and Mr AB then quickly looked down because Mr S was looking into the interview room. He heard Prisoner Y’s head hit the glass a couple of times. He described them as solid hits.

[155] Mr S put handcuffs on Prisoner Y, and Prisoner Y was not resisting.

[156] Later, Mr S came into the interview room and said to Mr AB, “You’ve seen nothing hey, you seen nothing.” Mr AB replied, “Yeah I seen nothing boss, I seen nothing.” Mr AB felt intimidated by Mr S.

[157] Mr AB was asked by another CSO shortly after incident if he had seen anything and if force had been used. Mr AB answered no because he was intimidated by what Mr S said to him.

[158] In cross-examination, Mr AB was asked what the protocol is when a prisoner is directed by a CSO to face the wall. He stated that you don’t turn around off the wall unless you’re asked or if you’ve been spoken to. 34

Evidence of Mr RL

[159] Mr RL has been employed by the Respondent for five years in the Respondent’s Office of Professional Integrity. Mr RL’s duties involve conducting internal investigations of possible serious breaches of procedure at facilities operated by the Respondent and providing reports to senior management.

[160] On 9 February 2016, Mr RL was appointed to investigate and report upon the incident involving Mr S and Prisoner Y on 8 February 2016. Mr RL was tasked to report on:

The full circumstances of any force used on Prisoner Y;

Whether the incident was reported by those involved/and or witnesses to it as required by the relevant procedure;

Whether any force used was necessary, reasonable and/or justified in accordance with the provisions of the relevant legislation, policies and procedures have been complied with;

Whether there has been a breach(s), by any employee, of the Company Code of Conduct and Ethical Behaviour; and

Whether in the circumstances, any disciplinary or other administrative action is warranted.

[161] In the course of the investigation, Mr RL took the following into consideration in preparing his written report:

Post-incident report of Prisoner Y;

CCTV footage;

Mr S CSO report dated 8 February 2016;

Transcript of interview with Mr S;

Mr DS CSO report dated 8 February 2016;

Transcript of interview with Mr DS;

Mr D CSO report dated 8 February 2016;

Transcript of interview with Mr D;

Clinical notes of Prisoner Y’s attendance at the medical clinic;

A visit to and examination of the scene of the incident;

Relevant Respondent policies and procedures; and

Relevant extracts of the Corrective Services Act 2006 (Qld) and the Criminal Code Act 1899 (Qld).

[162] The medical evidence of the incident records that Prisoner Y’s head wound was cleaned, and Betadine and a dressing applied. It was not necessary to apply glue or stitches to the wound.

[163] In consideration of the evidence given by Prisoner Y to Mr RL’s investigation, the report notes that Prisoner Y was, at the time of the interview, a remand prisoner charged with armed robbery and break and enter offences.

[164] Mr AB, a former remand prisoner at the time the incident occurred on 8 February 2016, had been charged with serious criminal offences including fraud, assault police, stealing, resist arrest and dangerous driving.

[165] On 24 February 2016, Mr RL completed his investigation and submitted his recommendations for endorsement. Mr RL made the following findings:

● This internal investigation is satisfied, on the available evidence and on the balance of probabilities, that as a consequence of force being used on his person by [Mr S], ….on 8 February 2016, Prisoner Y sustained a wound on his forehead which bled.
● This internal investigation finds that on 8 February 2016, in Unit A1 …. [Mr S] intentionally applied force to Prisoner Y that was not, having due regard to all of the prevailing circumstances, warranted, reasonable or necessary.
● This internal investigation finds that on 8 February 2016, in Unit a1 ….., whilst using physical force [Mr S] did not intentionally inflict the wound on Prisoner Y’s face; however, he acted recklessly as to the potential consequences of his actions.
● This internal investigation finds that on 8 February 2016, …..when [Mr S] stated in his Officers’ Report, “I was about to apply mechanical restraints to which he did not comply, reasonable and necessary force was used to control and restrain [Prisoner Y]” this statement was false as Prisoner Y was compliant with the application of mechanical restraints.
● This internal investigation finds that on 8 February 2016, ….[Mr S] intentionally failed to record in his Officers’ Report that during the use of force incident Prisoner Y sustained an open wound to his face.

[166] The investigation reported completed by Mr RL was accepted by the Respondent’s Managing Director on 25 February 2016.

[167] In cross-examination, Mr RL was taken to the investigation report at paragraph 10.19, where he had made the following finding:

‘What occurred next is [Mr S] appears to push [Prisoner Y] forcibly twice towards the glass window, separating the airlock from the interview room. The recording is not sufficient, on its own, to determine with any precision whether [Prisoner Y’s] face collided with the window.’

[168] Mr RL agreed that he had not reviewed the footage since making the report, but withdrew that particular finding with respect to Mr S having pushed Prisoner Y twice into the window. 35 He conceded that finding was made in error.

Evidence of Mr TI

[169] Mr TI is employed by the Respondent as the General Manager of the correctional facility the subject of this application. Mr TI has 28 years’ experience within the corrections industry.

[170] Mr TI was informed that Mr RL had recommended that Mr S be subject to a disciplinary hearing to answer allegations that he committed an unauthorised use of force upon Prisoner Y, contrary to the Respondent’s Code of Conduct and Ethical Behaviour, and failed to accurately report such incident.

[171] Mr TI authorised a letter of notice of disciplinary hearing to be sent to Mr S. This letter was sent on 1 March 2016.

[172] On 3 March 2016, Mr TI conducted a disciplinary hearing with Mr S, recorded with the consent of Mr S. Mr S attended the hearing with a support person. Based on the answers provided by Mr S in the hearing, Mr TI did not accept that Mr S had acted appropriately or complied with the Respondent’s Code of Conduct and Ethical Behaviour. Mr TI formed the view that Mr S was not honest or believable in many of his responses, and his explanation for why he directed Prisoner Y back into the airlock for a second time ‘defied logic, common sense and correctional practice.’

[173] Mr TI questioned Mr S in relation to the alleged threat Prisoner Y had made to Mr S, resulting in Mr S calling Prisoner Y back into the airlock. Mr S answered to the effect that there had been reports of drug activity, the unit was in a mess, and he didn’t wish to take any chances with a prisoner angry at him. Mr S considered that his life was in imminent danger

[174] As soon as Mr S raised with Mr TI that he considered a threat had been made against him, and his life was then in imminent danger, the questioning from Mr TI focussed on the action taken by Mr S in directing Prisoner Y back into the airlock one-on-one. Mr TI repeatedly questioned Mr S as to what procedure would call for a CSO to be in an airlock one-on-one with a prisoner who had made a threat?

[175] The transcript records Mr S describe Prisoner Y’s physical demeanour:

‘He wasn’t physically aggressive towards me, no not physically. Until the point when I spoke to him, when I had, when we were in the airlock alone and that’s when I asked him to turn around and he wouldn’t turn around so I pushed him around.’

[176] The conversation continued:

‘Mr TI: So how did the prisoner get an injury, and don’t tell me he cut it with his fingernail.

Mr S: Yeah, no I honestly did, I honestly pushed him around, and I don’t know how, he maybe turned around quick and hit his head on the window but, there was, there was no intent to do that to him.’

[177] With respect to the issue of not reporting the cut to Prisoner Y’s forehead, Mr S said during the disciplinary hearing with Mr TI:

‘Yeah, because I didn’t actually, I wasn’t actually aware that he had a cut on his head, because you know after I turned him round, he remained facing that way, and so I was standing behind him, just waiting for the response team to arrive, and when they arrived, the Team Leader told me to take him away, take him to Medical, and I escorted him from behind, like you know the escort hold, I didn’t realise that until I got to Medical, and then we took the cuffs off, and then I saw it, and then I was sent back to the Unit. It was quick glimpse and I will be honest it must have slipped my mind when I got back to the Unit otherwise I would have put it in my report. And when I got back to the Unit, as soon as I, I turned up to the Unit Mr [name] turned up, so we was doing questioning while I was trying to do my reports and it would have been an honest mistake that I left it out of my report….But yes, I do admit I forgot to put it in my report.’

[178] In a letter dated 7 March 2016, Mr TI summarily dismissed Mr S. The reasons for the dismissal were Mr S committed an unauthorised use of force upon Prisoner Y, had failed to properly report the use of force, and created a false official record. In addition, the Officer’s Report failed to report that Prisoner Y had sustained an injury to his face.

[179] The termination letter further cited six breaches of the Respondent’s Code of Conduct and Ethical Behaviour and further potential breaches of the same Code.

[180] With respect to the remedy sought by Mr S in relation to the application that being reinstatement to his position as a CSO, Mr TI does not have the necessary trust and confidence in Mr S to carry out the duties required of a CSO.

[181] It is Mr TI’s evidence that even if Prisoner Y had been verbally abusive, this does not justify a use of force. Handcuffs were used, and upon Mr S turning Prisoner Y around to face the window, there was no basis for further use of force. Mr S did not issue a warning to the prisoner regarding his intention to use force and providing the prisoner with an opportunity to comply.

[182] Mr S’s use of force cannot be reconciled with his own training records which refer to a number of options to de-escalate an interaction with a prisoner including disengagement where a prisoner is being abusive.

[183] In cross-examination, Mr TI was asked if he agreed if calm is contrary to shouting? He agreed that a person could not be calm and shouting at the same time. 36 It was later put to him if a person could be ‘mouthy’ and calm at the same time, to which Mr TI agreed.37 .

[184] Mr TI was asked if he agreed that prisoners don’t always tell the truth, to which he agreed. 38 It is his evidence that he took into consideration the evidence of the CSO’s, noting that the prisoners’ evidence collaborated the evidence of the two CSO’s.

[185] Mr TI was asked if Mr DS has recently been the subject of disciplinary proceedings. Mr TI agreed that he had been, but could not immediately recall the incident. When Mr Peverill reminded him that Mr DS had recently been disciplined for being overly helpful or assisting prisoners, Mr TI agreed. This had occurred in the last six weeks or so, and the sanction to Mr DS was that he was moved off prisoner contract area to the ‘front run’. 39

[186] In re-examination, Mr TI explained that Mr DS had been in discussions with a prisoner and had offered to fix the prisoner’s glasses. He was disciplined for this interaction, but not in relation to his honesty. 40

[187] I questioned Mr TI with respect to Mr L’s report suggesting that Mr S pushed Prisoner Y on two occasions in the airlock. Mr TI stated that after meeting with Mr S during the disciplinary hearing, he went and viewed the footage. It is Mr TI’s contention that Mr S did push Prisoner Y, but the footage is not clear. Mr TI considered the footage a factor in his consideration to terminate Mr S’s employment, but not a determining factor. 41

[188] It is Mr TI’s evidence that once Prisoner Y was facing the wall, and upon being handcuffed, there was a high demonstration of compliance. The force used by Mr S was therefore unjustified. 42

Summary of Applicant’s Submissions

Submissions on valid reason - s.387(a)

[189] The Applicant submits pursuant to section 387(a), there was no valid reason for the dismissal that related directly to the Applicant’s conduct. At no time did the Applicant wilfully or purposely use excessive force or purposefully push Prisoner Y into the wall.

[190] The Applicant submitted the following:

There needs to be clear and cogent evidence to satisfy the Commission that the conduct of Mr S constitutes serious misconduct. The evidence would need to support that Mr has in fact engaged in the excessive force which has been alleged. On the material before the Commission, it is not open to make such a finding, and the alleged misconduct has not been established as in fact.

For the reasons offered by the Respondent to be valid, it must be ‘sound, defensible or well founded. 43 The reasoning of the Respondent fails to meet the elements of a valid reason.

The reasons offered by the Respondent for termination is not defensible or justifiable on an objective analysis of the relevant facts. 44

The Applicant considers the absence of a valid reason renders the termination unfair. It is not enough for an employer to say that they acted in the belief that the termination was for a valid reason. 45

The purported reasons for termination asserted by the Respondent are prejudiced and are not supported by any credible evidence of wrongdoing, misconduct, under performance or otherwise.

There is no evidence of wilful or deliberate misconduct that is inconsistent with the continuation of the employment contract.

When assessing the reasons for dismissal, the Fair Work Commission does not ‘stand in the shoes’ of the employer but will need to be satisfied that the termination of the employee was for a valid reason. 46 In the circumstances it cannot be said that this incident is a “valid reason” for the dismissal due to the wholly disproportionate nature of the decision to dismiss on the basis of the events that allegedly transpired.

Mr S spent many minutes with Prisoner Y in the airlock attempting to de-escalate the situation. Where he couldn’t de-escalate it, he called a Code Yellow.

With respect to the failure of Mr S to report the injury to Prisoner Y, so too did Mr DS and Mr RD. If Mr S was terminated for failing to report, it’s open to the Respondent to similarly terminate Mr DS and Mr RD for failure to report. 47

In submissions it is not pressed that Prisoner Y may have been under the influence of drugs, despite Mr S’s evidence that it is possible Prisoner Y could have been under the influence of drugs.

Mr S had not been subject to any earlier disciplinary action, nor was Mr S charged with a criminal offence in relation to the incident, despite it being investigated.

[191] In closing submissions, it was submitted for Mr S that the Commission ought to be inclined to accept that, on the balance of probabilities, the evaluation of any competing propositions regarding the alleged actions of Mr S might ultimately be so finely balanced that the Commission was unable to possibly determine what happened. In such circumstances it's submitted that the onus on the Respondent had not been discharged to the relevant standard of proof and therefore the alleged misconduct of Mr S has not been established as fact. 48

[192] With respect to the matter of de-escalation, it was submitted that Mr S demonstrated attempts at de-escalation by removing Prisoner Y to the airlock. It was submitted that the Commission should reject any premise that Mr S had failed to meet obligations under the policies and procedures of the Respondent, particularly in respect of de-escalation. 49

Submissions on notification of the valid reason - s.387(b)

[193] Pursuant to section 387(b), it is submitted that the Respondent had not notified Mr S of a valid reason to terminate the employment of Mr S before the termination occurred. Notification of ‘the reason’ relates to the ‘valid reason’ for dismissal. 50 Notification of the valid reason to dismiss must be given to the employee before the decision to terminate is made, in explicit terms and in plain and clear terms.51

Submissions on opportunity to respond to any relation related to their conduct - s.387(c)

[194] No submissions were made on this criterion.

Submissions on unreasonable refusal by the employer to allow a support person - s.387(d)

[195] No submissions were made on this criterion.

Submissions on warnings regarding unsatisfactory performance - s.387(e)

[196] Pursuant to the above criteria, it is submitted that Mr S was not provided with any genuine “warning” of any alleged unsatisfactory conduct or performance. Further, it is submitted:

The Respondent has failed to identify any alleged unsatisfactory conduct or performance and make clear that Mr S’s employment is at risk unless conduct or performance improves. 52

The Respondent has failed to identify any alleged unsatisfactory conduct or performance of Mr S’s capacity to do the job prior to terminating Mr S’s employment.

Submissions on the impact of the size of the Respondent on procedures followed - s.387(f) and any absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[197] Pursuant to section 387(f) and 387 (g) of the Act, the Applicant submits given the size of the Respondent employer’s enterprise and human resources, the Respondent has engaged in conduct which was “improper, belligerent and bullying”. 53 The Fair Work Commission has commented that “common sense courtesies of conduct ought to exist in any workplace, whatever the size”.54 The procedure followed by the Respondent in effecting the Applicant’s dismissal was void of the common sense courtesies that ought to exist any workplace and this will be taken into consideration by the Fair Work Commission in determining that the dismissal was harsh, unjust or unfair.

Submissions on other relevant matters - s.387(h)

[198] Pursuant to section 387(h), the Applicant submitted that the Commission may consider other relevant matter, such as:

The financial and economic impact upon Mr S insofar as the he has lost his sole source of income and will find it difficult to find suitable alternative employment;

The Respondent’s failure, refusal or neglect to properly particularise, investigate and communicate any allegations made against Mr S that resulted in the decision to dismiss him;

The availability of alternative disciplinary actions that did not involve dismissal of Mr S;

Whilst the Applicant asserts there was no valid reason for the dismissal, in the event that the Commission finds that there was a valid reason for this dismissal, it will likely be found that the procedure used by the Respondent in effecting the dismissal rendered the dismissal unjust; 55

In the event that the Commission finds that there was a valid reason for the dismissal, the decision would likely be viewed as harsh, because summary dismissal was a disproportionate response; 56

The termination is unjust on the basis that the Respondent had pre-determined outcomes, which could not be displaced by Mr S; and

In the absence of any other reason offered by the Respondent, dismissal is a disproportionate response to the gravity of Mr S’s alleged misconduct.

Summary of Respondent’s submissions

Submissions on valid reason - s.387(a)

[199] The incident occurred because Mr S acted completely contrary to the concept of ‘de-escalation’ by yelling and abusing a prisoner.

[200] Mr S’s assault on Prisoner Y was not authorised by s.143 of the CS Act because Prisoner Y was not told to leave his head on the wall, so taking his head off the wall was not ‘non-compliance’ within the meaning of s.143.

[201] Even if Prisoner Y was told to leave his head on the wall, violence was not the only reasonable way to ensure compliance. Mr S could have simply asked Prisoner Y to return to the wall before resorting to force.

[202] No warning was given to Prisoner Y before Mr S used force against him, as required by s.143.

[203] Considering that Prisoner Y had given no indication that he was likely to turn to violence, Mr S cannot claim that simply repeating the instruction or giving a warning would create a risk of injury within the meaning of s.143(3) of the CS Act, particularly if Prisoner Y was wearing handcuffs at the time.

[204] The continuing theme throughout the Respondent’s procedures is that wherever possible, the use of force should be the last resort.

[205] Mr S’s actions were inherently inconsistent with his duties as a CSO. Prisoners have a special vulnerability to their prison guards. There is almost no other relationship where two people can have an argument and then one can order the other to walk into a private area, allow themselves to be handcuffed, and then be pushed from behind into a wall.

[206] There is almost no other relationship where the word of the victim will be automatically be given less weight by virtue of the relationship itself because the victim is a criminal or a person charged with crimes. The obligations upon Mr S were higher, not lower than those of the average employee.

[207] Prisoner Y did not fail to follow any directions. He entered the airlock, exited the airlock, re-entered the airlock, and faced the wall and put his head on the wall and his hands behind his back so that they could be handcuffed.

[208] The force involved must have been significant for Prisoner Y’s head to audibly strike the wall and his forehead to split open.

[209] Mr S knowingly made a false declaration in an official record by not reporting the injury to Prisoner Y.

Submissions on notification of the valid reason - s.387(b)

[210] Mr S was notified of the potential reason for dismissal by letter on 1 March 2016 and during his disciplinary hearing on 3 March 2016.

Submissions on whether Mr S was given an opportunity to respond to any relation related to their conduct - s.387(c)

[211] Mr S was given two opportunities to respond to the allegations against him – first in the interview on 17 February 2016, and again at a disciplinary hearing on 3 March 2016.

Submissions on unreasonable refusal by the employer to allow a support person - s.387(d)

[212] The Respondent did not refuse Mr S the opportunity to have a support person at both the interview and the disciplinary hearing.

Submissions on warnings regarding unsatisfactory performance - s.387(e)

[213] The dismissal was due to misconduct, and this criterion is not relevant.

[214] The Respondent accepts that it is a large employer with access to human resources staff, and this criterion is not relevant.

Submissions on other relevant matters - s.387(h)

[215] The Respondent submitted that the Commission should take into account the special vulnerability that prisoners have towards CSO’s. If the relationship between a prisoner and CSO did not exist, Mr S would not have been able to freely assault Prisoner Y without fear of restraint or reprisal.

[216] The power that Mr S held under the CS Act meets with a corresponding responsibility. Any abuse of that responsibility is particularly serious, particularly where the result is a criminal offence.

Harsh, unjust or unreasonable

[217] I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

‘387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.’

[218] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

‘.... 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.’

[219] I am under a duty to consider each of these criteria in reaching my conclusion. 57

[220] I will now consider each of the criteria at s.387 of the Act separately.

Consideration

Valid reason - s.387(a)

[221] Helpfully, I have the benefit of CCTV footage of some parts of the incident on which to rely. Clearly there are many parts of the total incident that are not covered by the footage, or are not clear within the footage, but it is very helpful to understand firstly the locality of the incident, and some reasonably clear parts.

[222] My assessment of the footage is as follows:

9:36:18 Mr S commences cell access.

9:37:00 Prisoner Y is seen near kitchen area.

9:37:58 Prisoner Y is at a table to the left of screen

9:38:13 Prisoner Y leaves coffee on table and goes left of screen out of view

9:39:10 Mr S reaches top landing for cell access

9:39:38 Prisoner Y returns to his coffee.

9:39:53 Mr S is now back in the unit having completed cell access

9:40:33 Prisoner Y sits at the table with a coffee.

9:40:47 Prisoner Y walks over to the cells to look for Mr S. He repeats this while holding his coffee, and goes to the top landing.

9:42:10 Prisoner Y goes to left of the camera to look for Mr S.

9:43:20 Prisoner Y returns to the table, takes a further sip of the coffee.

9:43:28 Mr S enters frame from the left and directs Prisoner Y into the airlock.
9:43:51 Prisoner Y enters frame from right haver having returned from the airlock. He walks towards the table on the left.

9:43:58 Prisoner Y reaches the table and is standing.

9:44:13 Prisoner Y commences walking back towards the airlock.

9:44:18 Prisoner Y now out of frame.

9:46:40 Prisoner Y enters frame from the right from the airlock and walks towards the table. He must have been called back, as he turns around at 9:46:44 and is no longer in frame at 9:46:47.

9:46:56 A Code Yellow is called as the camera pans to the CSO who has called the Code Yellow [as per evidence of Mr S]. Prisoner Y is in the airlock, his face is visible. He is facing Mr S. There appears to be a reasonable distance between the two men.

9:47:01 Mr S turns 90 degrees to tap on the window for the handcuffs.

9:47:05 Prisoner Y’s face is visible. He begins to turn anti-clockwise to face the wall/window. Mr S has one hand in contact with Prisoner Y, with a right hand outstretched to obtain handcuffs from Mr DS.

9:47:10 Mr S now has handcuffs in his right hand. The door remains open with Mr DS nearby.

9:47:18 Prisoner visible facing the window/wall with hands behind his back. He is stationary until 9:47:28 with no visible movement. Mr DS is present at the doorway.

9:47:28 Mr S’s left shoulder comes into view. Mr S blocks any view of Prisoner Y. Mr DS is still present, but perhaps looking at the door. There is a higher alert from prisoners outside of the airlock; approximately four inching closer to the window. They don’t appear to be saying anything.

9:47:34 Mr DS leaves the airlock and the door is closed.

9:47:39 A female CSO enters the airlock. Eight prisoners observing intently, trying to look into the window.

9:48:02 The female CSO leaves the airlock. Prisoner Y is observed restrained from behind, not moving.

9:48:18 Two CSO’s enter the airlock.

9:48:30 The two CSO’s leave the airlock. Prisoner Y is observed restrained from behind, not moving.

[223] On the footage available to me, it appears that Prisoner Y first spoke with Mr S between 9:42:10 and 9:43:20. This conversation was off-camera.

[224] Having returned at 9:43:20, Mr S then comes into view and directs Prisoner Y into the airlock.

[225] Including the short amount of time it takes for Prisoner Y to walk to the airlock and return, a period of 30 seconds elapsed. This is a very short period of time. By 9:43:58, Prisoner Y was standing at the table. 15 seconds later he then moved towards the airlock for the second time.

[226] A conversation must have been held between Prisoner Y and Mr S in the airlock for approximately two minutes. Prisoner Y sought to return to the table but must have been called back as he stopped mid-stride to return to the airlock.

[227] The evidence is that the Code Yellow was called at approximately 9:46:56, following Mr S’s direction to Prisoner Y to return to the airlock for the third occasion.

[228] I do not accept the evidence of Mr S that prisoners were yelling during the airlock conversation things such as ‘go on, dog and ‘maggot’. These prisoners were directly in front of the Officer’s Station. Mr DS did not hear yelling from the prisoners. Furthermore, even at the height of activity, where Prisoner Y came into contact with the wall/window, and eight prisoners were in the near vicinity of the airlock attempting to see in, there does not appear to be any vocalisation from those prisoner.

[229] On entering the airlock on the third occasion and after the Code Yellow had been called, Prisoner Y was facing Mr S. He then turned around, it would seem at his own initiative; that is, by direction of Mr S, but not by force of Mr S. While Prisoner Y’s oral evidence is that he was not informed that he was going to be cuffed, his account when being interviewed is that Mr S did say he was going to cuff him. This is traversed at [87].

[230] I do not consider that Mr S was in any reasonable fear for his safety at this point, as he turned his body approximately 90 degrees from Prisoner Y in order to obtain the handcuffs from Mr DS. He had his left hand outstretched against a part of Prisoner Y’s body. On the footage before the Commission, Prisoner Y remained stationary for a period of 10 seconds, all the time while Mr DS was present at the doorway to the airlock.

[231] It is Mr S’s evidence at [33] that while he was waiting for responding officers to the Code Yellow, Prisoner Y became agitated and came off the wall. He faced Mr S and said, “Fuck you cunt, I will fucking smash you.”

[232] I do not accept this. On the footage before me, Prisoner Y was compliant from having been directed to turn around and put his head against the wall, including when Mr DS was present in the airlock. If Prisoner Y had said this, it would have been in the presence of Mr DS.

[233] It is only at 9:47:28 that there appears to be some sort of activity that is obscured by Mr S’s body. Clearly something unusual is happening, as at this time the prisoners outside of the airlock are alert, but they do not appear to be vocal. All this while, Mr DS is present, but it would seem, not paying too much attention. It is his evidence he was preparing for the arrival of respondent officers.

[234] Within six seconds of any unusual activity occurring which commenced at 9:47:28, Mr DS was out of the airlock, and by 9:47:39, the female CSO was in the airlock. On each occasion in the minute following that the door to the airlock was opened and Prisoner Y could be seen, he was restrained from behind and not moving. He was compliant.

[235] I do not accept the evidence of Mr S at [48] where he stated that following the response of CSO’s, Prisoner Y was physically compliant but still abusing him. Within seconds of Mr DS leaving the airlock, a female CSO entered and inquired as to whether Mr S needed assistance. If Prisoner Y had been abusive towards Mr S, it is expected the CSO would have remained to ensure Prisoner Y did not seek to overpower Mr S, despite being handcuffed. Instead, she walked through to the unit to assist with removing the prisoners from the unit. When the door was opened, it is evident that Prisoner Y is compliant.

[236] It appears that there is no footage which covers the period of time where Mr RD entered the airlock, and the following paragraph has no application to the evidence given my Mr RD.

[237] It is extremely difficult to find that any of the witnesses, that being Mr S, Mr DS, Prisoner Y and Mr AB, have given evidence that strictly supports the CCTV footage. I find that not one single witness has given an account of the events as they appear to have taken place with the benefit of review of the footage. That is, of course, entirely expected. The incident occurred over a very short period of time. Some witnesses had obstructed views, or were busy preparing for the next activity.

[238] Witnesses were interviewed by Mr RL between 12 and 17 February 2016, some up to nine days after the event. There is bound to be some loss of specificity in memory of the event.

[239] The issue to determine is, on the basis of Mr RL’s findings in his report, was it open to him to make the relevant findings, even if the Commission determines that there are some errors in witnesses’ evidence? I will address each of Mr RL’s findings, which are set out below:

1. This internal investigation is satisfied, on the available evidence and on the balance of probabilities, that as a consequence of force being used on his person by [Mr S], ….on 8 February 2016, Prisoner Y sustained a wound on his forehead which bled.’ (First Finding)

2. This internal investigation finds that on 8 February 2016, in Unit A1 …. [Mr S] intentionally applied force to Prisoner Y that was not, having due regard to all of the prevailing circumstances, warranted, reasonable or necessary. (Second Finding)

3. This internal investigation finds that on 8 February 2016, in unit A1 ….., whilst using physical force [Mr S] did not intentionally inflict the wound on Prisoner Y’s face; however, he acted recklessly as to the potential consequences of his actions. (Third Finding)

4. This internal investigation finds that on 8 February 2016, …..when [Mr S] stated in his Officers’ Report, “I was about to apply mechanical restraints to which he did not comply, reasonable and necessary force was used to control and restrain [Prisoner Y]” this statement was false as Prisoner Y was compliant with the application of mechanical restraints. (Fourth Finding)

5. This internal investigation finds that on 8 February 2016, ….[Mr S] intentionally failed to record in his Officers’ Report that during the use of force incident Prisoner Y sustained an open wound to his face. (Fifth Finding)

[240] The First Finding is not disputed.

[241] In relation to the Second Finding, I accept Mr RL’s findings. I too find that at the time Mr S used force on Prisoner Y, that being at or around 9:47:28, Prisoner Y had been compliant. He was handcuffed and facing the window/wall. Another CSO, Mr DS was present in the airlock doorway. Even if Prisoner Y had sought to turn his head to talk, it was not reasonable action to force his head into the window/wall. It would reasonably have been open for Mr S to apply some pressure on Prisoner Y’s wrists, as he was in a wrist hold at this stage. The use of force to push his head into the wall/window, enough to cause an injury was excessive.

[242] It was not lawful action required pursuant to s.143 of the CS Act. Section 143(2) of the CS Act only allows force if the CSO reasonably believes the act or omission permitting the use of force cannot be stopped in another way. I do not accept, on the balance of probabilities, (and it is not necessary to determine this to a criminal standard), that Mr S could reasonably have believed that an omission to keep Prisoner Y’s head on the wall, in the circumstances where he was cuffed from behind and Mr DS was in the near vicinity, could only have been dealt with by the use of force.

[243] I accept Mr RL’s Third Finding. I accept that Mr S did not intentionally seek to cause an injury to the face of Prisoner Y, but he did act recklessly as to the potential consequences of his actions.

[244] I accept the Fourth Finding of Mr RL. Having reviewed the footage and taken into consideration the statements of all witnesses, including Mr S, I determine that Mr S’s statement was false. It may have been Mr S’s perception of the events in the heat of the moment and perhaps with some loss of dignity by having a loud, verbal discussion with a prisoner, however it was ultimately false. Prisoner Y did comply with the direction to face the wall, place his head on the wall and put his hands behind his back. He was stationary for a period of 10 seconds thereafter. In the presence of another CSO, he was compliant.

[245] I accept Mr RL’s Fifth Finding. The evidence of Mr S has been incredibly inconsistent as to whether he knew that Prisoner Y had sustained an injury to his face.

[246] He did not record the injury in his report. Yet during the investigation, he stated that he first became aware of it towards the end of his time in the medical clinic. He completed his report shortly thereafter.

[247] During these proceedings, Mr S has, quite bizarrely, stated that he wasn’t aware of the injury to Prisoner Y’s face. At paragraphs [58] – [60], it is Mr S’s evidence that he acknowledged having seen blood on Prisoner Y’s face for the purposes of the investigation, and reporting that to Mr RL during the investigation, but during the hearing, it is his evidence that he did not see blood on Prisoner Y at all.

[248] If Mr S did not notice the blood on Prisoner Y’s face, he should have said so during the investigation. Instead, he stated that he had seen it towards the end of his time at the medical clinic, and had then forgotten to include it in his report a short time thereafter. There can be no criticism of the Respondent’s decision to include within its reasons for the dismissal the failure to complete the Officer’s Report correctly, stating the injury to the prisoner, if Mr S has made admissions during the investigation that he was aware of the injury.

[249] I do not accept that there was any pressure on him, as claimed, to acknowledge the injury if he did not see an injury. It was Mr S’s clear evidence during the investigation that he noticed the injury to Prisoner Y’s forehead. It is also Prisoner Y’s evidence that he stated a number of things to Mr S about his forehead having been cut.

[250] It is noted that while Mr AB was interviewed by Mr RL, Mr RL did not make a finding that Mr S later returned to the interview room and said to Mr AB, “You’ve seen nothing hey, you seen nothing.” I consider that Mr RL likely did accept the evidence of Mr AB over the evidence of Mr S, but ultimately, did not make a finding with respect to that specific issue.

[251] Similarly, the findings made by Mr RL were then relied upon by Mr TI in his inquiry. The reasons for the summary dismissal did not include any reference to alleged intimidation of Mr AB following the incident. Accordingly, it is unnecessary for me to determine whether I accept the evidence of Mr AB with respect to this alleged conversation, as it formed no part of the Respondent’s decision to dismiss Mr S. Of course, the remainder of Mr AB’s evidence in the investigation was considered and formed a part of the reason to dismiss Mr S.

[252] Having accepted Mr RL’s findings as correct, the next relevant test is to determine whether the further inquiry undertaken by the Respondent, including the further hearing with Mr S would result in a finding that the Respondent did have a valid reason for the dismissal.

[253] Having read Mr RL’s report, Mr TI directed a letter be sent to Mr S, and he was invited to attend a disciplinary hearing with a support person.

[254] The disciplinary hearing is, helpfully, transcribed. While Mr Peverill’s submission is that Mr TI did not adequately take into consideration a number of matters put before him, I am satisfied that Mr TI had regard to all of the relevant considerations necessary in order to determine the outcome of the disciplinary hearing. I do not accept that if further inquiry had been undertaken with respect to the purported drug concerns in the unit on that day, it would have altered the finding of the Respondent, nor would it have reasonably excused Mr S’s conduct.

[255] It was incumbent on Mr S to consider and appropriately apply the principles of de-escalation to defuse the situation with Prisoner Y. The obligation on Mr S is derived from the Respondent’s Directive. The Directive is supported by the Control and Restraint Manual which emphasises the need for CSO’s to apply principles of de-escalation rather than, or to avoid the need for reasonable force to be used.

[256] Mr S received training on and was found to be competent in the application of the Control and Restraint Manual.

[257] I find that Mr S, in his interactions with Prisoner Y throughout the incident, failed to consider and follow the Directive and the Control and Restraint Manual. Rather than apply the principles of de-escalation. I find on balance that Mr S became agitated with Prisoner Y throughout the incident, the result of which caused a further escalation of the situation.

[258] Mr RD’s evidence that he had never seen Prisoner Y aggressive, together with Prisoner Y’s evidence that he had never been in the airlock for a containment reason, is compelling evidence that the incident involving Prisoner Y was unusual. Only 10 minutes earlier he had been informed of news that he was being considered for a move to a more preferable unit within the correctional centre. I have given the relevant consideration to this evidence.

[259] When taking into account the fact that mechanical restraints had already been applied to Prisoner Y, and that the alleged non–compliance was short in duration, I do not find that Mr S attempted to defuse the situation verbally, prior to applying force to Prisoner Y. I find that the decision of Mr S to apply force showed complete disregard for the Respondent’s policies and procedures, including the Code of Conduct, and that his use of force was disproportionate in all of the circumstances. Consequently, I find that Mr S was not authorised to apply force to Prisoner Y and, in doing so, breached the Respondent’s Code of Conduct.

[260] Even if only the evidence of Mr DS and Mr RD was taken into consideration, the evidence before the Commission is that Mr S was angry, tense and shouting. While Mr RD has stated that the use of force on Prisoner Y was not excessive when he entered the airlock after the initial incident, he was concerned for Prisoner Y’s welfare, and sought to separate Mr S and Prisoner Y by attempting [unsuccessfully] to take Prisoner Y to the medical clinic without Mr S attending.

[261] Further, Mr RD’s evidence is that Mr S handled Prisoner Y in an aggressive manner on the walk to the medical clinic, including banging unnecessarily into at least one door. Prisoner Y complained that he had to request on a number of occasions for the handcuffs to be removed, and another CSO also sought to have Mr S leave the medical clinic because of his apparent aggression and demeanour.

[262] On the evidence before me, I am satisfied that there was a valid reason for the dismissal of Mr S. I am satisfied that his misconduct was a serious breach of the Respondent’s Code of Conduct and therefore warranted dismissal. It was not necessary for the Respondent to turn its mind to alternatives to dismissal. The act of causing injury to Prisoner Y in the manner in which it occurred constitutes serious misconduct.

Notification of the valid reason - s.387(b)

[263] Mr S was properly notified of the matters to be investigated by the Respondent. The letter of 1 March 2016 adequately set out for the benefit of Mr S the matters for investigation.

Opportunity to respond - s.387(c)

[264] I am satisfied that Mr S was offered an opportunity to respond, as evidence by the transcript of the disciplinary hearing.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[265] Mr S attended with a support person at the disciplinary hearing, and was not refused a support person.

Warnings regarding unsatisfactory performance - s.387(e)

[266] Mr S was dismissed for misconduct and accordingly this is not a relevant consideration.

Impact of the size of the Respondent on procedures followed - s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[267] The Respondent is a large organisation with dedicated human resources specialists. This is not a relevant consideration.

Other relevant matters - s.387(h)

[268] The Respondent submitted that the Commission should take into account the special vulnerability that prisoners have towards CSO’s. If the relationship between a prisoner and CSO did not exist, Mr S would not have been able to freely assault Prisoner Y without fear of restraint or reprisal.

[269] The power that Mr S held pursuant to the CS Act meets with a corresponding responsibility. Any abuse of that responsibility is particularly serious, particularly where the result is a criminal offence.

[270] I am mindful of the relationship between CSO’s and prisoners, and the obligation of CSO’s to ensure any to force used on prisoners is lawful. Having determined Mr S’s conduct in the incident was serious misconduct, it is not necessary to explore in-depth the concept of vulnerability of prisoners generally.

[271] I have also taken into consideration the relatively short period of service of Mr S that being approximately 13 months’ service.

Conclusion

[272] Having considered each of the matters specified in s.387, I am not satisfied the dismissal of Mr S was harsh, unjust or unreasonable.

[273] The dismissal of Mr S cannot fairly be characterised as a disproportionate response to his conduct.

[274] Accordingly, I find that Mr S’s dismissal was not unfair. The application is dismissed, I order accordingly.

COMMISSIONER

1 Exhibit A3 p 8.

2 PN269.

3 PN277.

4 PN282.

5 PN353.

6 PN356.

7 PN369.

8 PN373.

9 PN472.

10 PN481.

11 PN494.

12 PN495.

13 PN506.

14 PN516.

15 PN507.

16 PN526.

17 PN569.

18 PN638.

19 PN100.

20 PN92.

21 PN168.

22 PN169.

23 Annexure AY1, page 5.

24 Ibid, page 11.

25 PN1577.

26 PN1622.

27 PN1330.

28 PN1346.

29 PN1367.

30 PN1354.

31 PN1777.

32 PN1743.

33 PN1399.

34 PN1435.

35 PN739.

36 PN946.

37 PN955.

38 PN978.

39 PN1046.

40 PN1191.

41 PN1205.

42 PN1222.

43 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

44 Rode v Burwood Mitsubishi [AIRCFB, Print R0708].

45 Ibid.

46 Miller v University of New South Wales (2003) 132 FC 147, [13].

47 PN1859.

48 PN1832.

49 PN1833-PN1835.

50 Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2.

February 2000) Print S2679, [41].

51 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [70]‒[73]; Previsic v Australian.

Quarantine Inspection Services (unreported, AIRC, Holmes C, 6 October 1998) Print Q3730.

52 Fastidia Pty Ltd v Goodwin (unreported, AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000).

53 Sykes v Heatley Pty Ltd T/A Heatly Sports (unreported AIRC, Grainger,C, February 2002).

54 Ibid.

55 Byrne and Frew v Australian Airlines (1995) 131 ALR 422 at 434.

56 Homes v Coles Group Limited[2014] FWC 2013.

57 Sayer v Melsteel[2011] FWAFB 7498 at [20].

Printed by authority of the Commonwealth Government Printer

Mr S. v Respondent

[2016] FWC 6904

19 OCTOBER 2016

DECISION