Perez v Northern Territory Department of Correctional Services

[2015] FCCA 1384

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEREZ v NORTHERN TERRITORY DEPARTMENT OF CORRECTIONAL SERVICES [2015] FCCA 1384

Catchwords:
INDUSTRIAL LAW – Employment –allegation of bullying and harassment – injurious conduct – adverse action – adverse action in context of performance review – workplace right in respect of CCTV footage of workplace – onus arising under section 361 of the Fair Work Act – reason for standing down and termination – no adverse action found – application dismissed.

Legislation:

Fair Work Act 2009, ss.340(1), 341; 342; 351; 360; 361; 546;

Evidence Act (1995) (Cth), s.140

Public Sector Employment and Management Act (NT), s.24

Fox v Percy (2003) 214CLR 118
Briginshaw v Briginshaw (1938) 60CLR 336
Patrick Stevedors Operations No.2 Pty Ltd v Maritime Union of Australia & Ors (1998) 195 CLR 1
Board of Bendigo Regional Institute of Technology and Further Education v Barkley (2012) 248 CLR 500
Shortv Ambulance Australia [2015] FCAFC 55

Applicant: LUIS EDGAR PEREZ

Respondent: NORTHERN TERRITORY DEPARTMENT OF CORRECTIONAL SERVICES

File Number: DNG 6 of 2014

Judgment of: Judge Brown

Hearing dates: 5, 6 and 7 May 2015

Date of Last Submission: 7 May 2015

Delivered at: Adelaide

Delivered on: 29 May 2015

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: Not applicable

Counsel for the Respondent: Mr Currie

Solicitors for the Respondent: Solicitor for the Northern Territory

ORDERS

1. The application filed 13 March 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ALICE SPRINGS

DNG 6 of 2014

LUIS EDGAR PEREZ

Applicant

And

NORTHERN TERRITORY DEPARTMENT OF CORRECTIONAL SERVICES

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant in these proceedings is Luis Edgar Perez.  The respondent is the Northern Territory Department of Corrections (“the Department”) and apparently various of its employees, whom Mr Perez has subsequently named in amended applications, which have not been formally served on the designated persons concerned.

2. In general terms, Mr Perez claims that the Department has illegally contravened his workplace rights, whilst he was employed as a prison officer in training.  As such, he contends that the Department should be required to pay him a significant amount of compensation and both the Department itself and various nominated officers be ordered to pay penalties of between $10,200.00 and $30,600.00 and apologise to him for their conduct.

Background

1. In December of 2012, the Commissioner for Public Employment for the Northern Territory offered Mr Perez a position as a prison officer in training.  The position was expressed as being temporary and to run between 11 February 2013 and 10 February 2014. 

2. Mr Perez accepted the offer, which required him to present for training at the Alice Springs Correctional Centre (“the ASCC”) on 11 February 2013.  His starting salary was $44,311.00 per annum. 

3. On 30 January 2014, Bill Yan, the general manager of the ASCC wrote to Mr Perez to inform him that he (Mr Perez) had not been recommended for a permanent position, as a prison officer, and accordingly, that his contract would not be extended.  Mr Perez was further advised that his employment at the ASCC would cease on 10 February 2014. 

4. The first portion of the employment of a prison officer in training consists of eight weeks of training, in a classroom setting, away from any specific correctional facility.  Thereafter, the trainee officer is assigned a mentor to shadow within the actual prison environment, in order to obtain direct on-the-job training about practices, procedures and protocols, within the relevant correctional facility.  Mr Perez joined the formal roster, at the ASCC, on 27 April 2013. 

5. In mid-June of 2013, Mr Perez claims that he was harassed and victimised by other staff members at the ASCC about a number of matters, but particularly in respect of an incident which occurred at the maximum security section (G Block) on 12 June 2013 before the midday muster of prisoners. 

6. It was alleged by prison staff that Mr Perez entered the courtyard of G Block alone in breach of security protocols, which had the potential to place both him and other prison officers at risk.  Mr Perez has consistently denied this assertion and has claimed that he was unfairly harassed about it, and later victimised, particularly when he raised issues about prison security and management with senior officers at the ASCC.

7. Mr Michael Adeyemo was the senior officer on duty at G Block on 12 June.  He has testified that a prisoner engaged in threatening behaviour in the courtyard.  This behaviour included the damage of a garbage bin and the throwing of rubbish around the courtyard. 

8. Mr Adeyemo was concerned that Mr Perez had unlocked a metal security grill door and had then entered the courtyard, without carrying out a proper assessment of the security implications of the incident within.

9. In this context, later on 12 June, Mr Adeyemo sent Mr Perez an email in the following terms:

   “Can you please provide me with a minute as to why you entered into the Golf Block – reception unit courtyard by yourself without assessing the risks and after a rubbish bin was observed smashed up in the middle of the courtyard by prisoner … ”

10. On 12 June, Mr Perez responded to this request in a thirteen paragraph email.  He acknowledged that he did not see the damaged rubbish bin.  Thereafter, at some length, he refuted any suggestion that he had acted inappropriately when he entered the courtyard.  Mr Adeyemo has maintained his position that the incident was inappropriately handled by Mr Perez and represented a potentially dangerous situation.

11. Mr Adeyemo formed the opinion that Mr Perez’s answering email was not in the appropriate form.  He directed Mr Perez to provide a more concise explanation.  As a consequence, Mr Perez provided another response which read as follows:

    “I entered courtyard of Reception Block of G Block with Mr Fullerton and four other prison officers.  Without claim to any prior security expertise and experience, my assessment of the situation did not ring any alarms.

    It is apparent that I need further training in security assessment and some literature/handouts to raise my awareness and situational assessment skills.”

12. In these circumstances, it is Mr Adeyemo’s evidence that he felt under an obligation to counsel Mr Perez about what he assessed to have been a lapse of security at G Block by him, which potentially had placed Mr Perez at risk as well as other officers who had followed him into the courtyard. 

13. Mr Adeyemo has further testified that he spoke to Mr Perez about the need for him to improve his vigilance in the prison setting.  However, Mr Adeyemo has given evidence that he did not propose to take any further formal action in respect of the incident, which he considered to be closed.

14. As part of their training, trainee prison officers are required to undergo a performance appraisal by a more senior officer.  Mr Perez requested that Mr Adeyemo be his appraiser.  The appraisal took place on 27 June 2013. 

15. In the appraisal, Mr Adeyemo adverted to what he characterised as a “need for Officer Perez to improve in the requirement to follow appropriate procedures in the conduct of his duties in the workplace without jeopardizing the safety of staff, prisoners and the public.”

16. In this context, Mr Adeyemo identified a need for Mr Perez to improve his vigilance skills.  He also identified what he perceived to be a level of hesitancy in Mr Perez asking advice from more senior officers to him.  Mr Adeyemo also raised criticism of how Mr Perez had previously recorded muster counts and how he wrote formal minutes.

17. On 28 June, Mr Perez wrote a lengthy email to Mr Adeyemo, which was copied to Frank Tunney, who is a chief prison officer and the superintendent in charge of training at the ASCC.  He was responsible for the oversight of Mr Perez’s prison officer training.  The email began with the following statement:

    “Words seem to have some interesting features.  Once spoken, they seem to become as feathers in the wind.  They become difficult and almost impossible to recall.  Therefore I have elected to write to you my personal take on some of the items in my assessment.”

18. Thereafter, Mr Perez embarked upon a defence of his action in respect of the perceived criticism made of him by Mr Adeyemo, regarding his number recording, following a specific muster.  Mr Perez asserted that the same errors, levelled against him, had probably been committed by more senior officers in the past and in any event, the omissions were moot and academic.  He said of his work performance, on the day in question, that it must have been one hell of a job, given what he perceived to have been the interference of other officers in his record keeping obligations.

19. In addition, in his email, Mr Perez returned to the events, which had occurred at G Block on 12 June and again refuted any criticism of his actions on the day in question.  He denied that there had been a rubbish bin, damaged or otherwise, when he entered the courtyard and asserted that another officer, Mr Fullerton had been right behind him and other officers had been not far behind.  He concluded these comments with the following statement:

    “I believe that an appeal to the saved video footage of the incident is in order.”

20. Activities at the ASCC, including the G Block courtyard and its security entrance are monitored by close circuit video cameras.  Footage captured by the cameras is stored for a period of nine weeks before the video tape is re-used and what is recorded thereon is covered by new recordings.  The officer in charge of video surveillance at the ASCC, is John Brown, the Senior Correctional Officer in the Intelligence Unit at the Correctional Centre. 

21. Mr Tunney has deposed that he found Mr Perez email to be an unusual response to a performance appraisal taking place at an early stage of a trainee prison officer’s training, particularly given that no disciplinary action was being considered in respect of the 12 June incident, which from Mr Adeyemo’s perspective, was concluded.

22. In addition, Mr Tunney was aware that other officers had raised performance issues in respect of Mr Perez in the past.  These included problems with handcuffing prisoners (raised by Senior Prison Officer Phillip Dean) and issues related to prisoner counting (raised by Prison Officers Dustin Salmon and Robert Pearson).  In these circumstances, Mr Tunney decided to convene a meeting, with Mr Perez, to discuss these various issues.

23. The meeting took place on 1 July 2013.  Besides Mr Tunney and Mr Perez, Nichole Bell also attended as did Bridget Davey.  Ms Bell is the Deputy Superintendent of Operations at the ASCC.  Ms Davey is a prison officer and a union delegate for United Voice, the relevant industrial organisation for the ASCC.  Ms Davey is also a member of the Northern Territory Prison Officers’ Association.  She attended the meeting at the request of Ms Bell.  Senior Prison Officer Steinborner also attended the meeting as a note taker. 

24. From Mr Tunney’s perspective, the focus of the meeting was on his perception that Mr Perez did not take readily to criticism and was not amenable to the directions of senior prison officers.  In Mr Tunney’s opinion, these deficits, perceived on his part in respect of Mr Perez, were serious given the overall chain of command in a prison context.

25. It is Mr Tunney’s evidence that there were further concerns raised with him about Mr Perez’s work performance on 3 July, when it was asserted by Prison Officers Tishler and Hession that Mr Perez had not been properly equipped with a radio and keys on one occasion. 

26. In these circumstances, Mr Tunney, after consultation with Ms Bell, elected to have a further work performance meeting with Mr Perez, which was scheduled for 11 July.  He arranged for a person from Human Resources to attend as a support person for Mr Perez.

27. The meeting did not take place.  On 10 July 2013, Mr Perez provided a medical certificate, which indicated that he was unwell.  Later it transpired that he was placed on sick leave, as a result of depression and anxiety, said to have been sustained by him, whilst at work at the ASCC. 

28. Mr Perez returned to work pursuant to a return to work plan, prepared for him on 11 November 2013 but was unable to return to the main prison facility, due to apparent anxiety.  It had been hoped that Mr Perez might be able to gradually enter the main prison, particularly to deliver mail.

29. As a consequence of not being able or willing to enter the main prison facility, Mr Perez was unable to fulfil the formal requirements necessary to confer on him a Certificate III in Correctional Practice.  Thus he could not proceed from being a prisoner officer in training to being a prison officer, as a Certificate III is a mandatory qualification for conferral of the latter position.

30. After his return to work, Mr Perez worked in an area of the ASCC known as The Cottages, which is outside the main prison area and is low security.  On 13 December 2013, further controversy arose concerning an alleged direction given to Mr Perez to prepare prisoner bed packs, which he construed as an attempt to humiliate him personally.

31. Mr Perez complained about the matter to Superintendent Rosier.  He said of the officer who had apparently given the direction:

    “…this action of hers may easily be construed for something worse than constructive dismissal and or injury to my employment by management…the onus of proving that her action was not on management’s instructions will be removed from ASCC.”

32. Mr Yan did not believe there was anything untoward in the direction concerned.  In addition he has refuted any suggestion that the incident constituted any concerted action on his part to humiliate Mr Perez.  It is his evidence that he found the management of Mr Perez, at the ASCC, to be a difficult issue for him and other senior staff, particularly because he (Mr Perez) directed with whom he was or was not prepared to work and resolutely refused to enter the main prison, which was contrary to the advice of his own rehabilitation consultant.

33. On 23 December 2013, Mr Yan conferred with Melinda Bongiorno, who is the Manager of Workplace Injury Solutions, which is an organisation directed to providing assistance to employers, within the public sector, in dealing with workers’ compensation issues. 

34. Ms Bongiorno had been overseeing Mr Perez’s return to work, with the assistance of a rehabilitation consultant and a psychologist.  One area of investigation for Ms Bongiorno concerned whether Mr Perez could be desensitised to such a degree to be able to return to work in the main prison. 

35. However, after assessing the case and discussing it with Mr Yan, Ms Bongiorno was concerned that there remained a significant risk of Mr Perez sustaining further harm, if he continued in the workplace.  On this basis, Mr Yan determined to stand down Mr Perez, on full pay, effective from 23 December 2013.  Mr Perez claims this decision was unjustified and prejudicial to him.

36. On 24 July 2013, Mr Perez lodged a formal complaint that he had been harassed by a number of officers at the ASCC including Nichole Bell; Dustin Salmon; Frank Tunney; and Michael Adeyemo.  On 2 August 2013, Mr Perez sent an email to David Ferguson, Manager of Professional Standards, at the Department of Correctional Services, alleging corruption and unethical conduct at the ASCC.

37. The complaint was forwarded to Ms Sue Martin, who is the human resources consultant at the ASCC.  Mr Perez complained that Mr Adeyemo had confronted him about his entry into the G Block courtyard.  He also complained of being verbally admonished by Mr Adeyemo and subsequently by Ms Bell and Mr Tunney at the meeting of 1 July.

38. From Mr Perez’s perspective, the central issues in the case was whether he entered the courtyard alone and whether there was a smashed rubbish bin there.  At this stage, he complained of feeling anxious about the matter and suffering a loss of appetite and irregular sleeping patterns.  He demanded that this issue be investigated and resolved.  In this context,  his complaint included the following passage:

    “I would like this matter investigated by an independent body at the earliest opportunity.  I would like a viewing of the of entire 12 June 2013 day shift CCTV footages of both the Grill Area and the Courtyard Area of the Reception Unit in G Block from 0800hr to 1224hr to determine if I did enter the courtyard alone and if there was a smashed rubbish bin in the middle of the courtyard upon my entry.

    If the CCTV footage provides that I went into the Courtyard Area in the company of fellow officers and that there was no smashed rubbish bin in the middle of the courtyard (Attachment No.2), the imputation that I placed myself at risk and so many others in potential danger is baseless.  If thus, I wish this behaviour of repeated accusations to cease immediately and deleted from my personal records.”[1]

    [1]  See affidavit of Luis Edgar Perez filed 23 March 2015 – Annexure 13 at page 84

39. Deputy Superintendent Grant Ballantine apparently was the officer at the ASCC who received the complaint, although it was subsequently referred to the Professional Standards Unit in Darwin for investigation.  Mr Perez accuses Mr Ballantine of administrative inaction in respect of his request to view the entire day’s CCTV footage of what occurred on 12 June 2013.

40. The basis of this complaint being that if those in authority, in conjunction with Mr Perez, had viewed the footage at an early stage, Mr Perez’s conduct on 12 June would have been vindicated.  Underpinning this assertion is the assumption, on Mr Perez’s part, that the footage would show other officers entering the courtyard, as Mr Perez subsequently did, in the period prior to 11:45am.

41. Thus Mr Perez contends the footage would show that he has been unfairly scapegoated for entering the courtyard in the same manner as other officers, more senior to him.  The destruction of CCTV footage of what occurred prior to 11:45am appears to be the basis of Mr Perez’s claim that he has been the subject of some form of conspiracy at the ASCC.  Essentially Mr Perez claims that he was set up by other officers to enter the courtyard in the manner in which he did in order to discredit him.  This seems to be the basis of his claim of entrapment.

42. On 2 July, Mr Yan met with Paul Drake, who is the Alice Springs representative for the Northern Territory Prison Officers’ Association.  Mr Drake discussed with Mr Yan concerns raised by Mr Perez about his treatment in the workplace.  Mr Ballantine, also attended the meeting, at which Mr Drake was advised that Mr Perez continued to be subject to an on-going performance appraisal.

43. It was Mr Drake who assisted Mr Perez with putting in his formal complaint of harassment.  Mr Drake also apparently provided some informal advice to Mr Perez, in which he indicated his view that the job of a prison officer was not for everyone.  In this context, Mr Drake wrote as follows:

    “Luis, I can advise that I have spoken with Management regarding your situation, I can say the NTPOA has agreements with NTDCS to assist staff when they require help to complete Certificate III, all components of Certificate III, this has been a process developed over many years, and many many courses.  Sometimes this job has proven too much for many staff, what with all the paperwork, dealing with prisoners and then study, it is certainly not for everyone.  We always insist that every member be given every opportunity to achieve the best results, assistance may vary from extended periods of time under the shadow of an experienced Officer, additional rostering in positions that require more intense training and understanding by new staff, i.e. Block Officers.  We also support new staff to be returned to Training to gain further training in any areas that may be identified as requiring further training by experienced Officers.  Please understand that this is a Prison, and we aim to get staff to a high level, because if we fail to do this, it can cause a link in the chain to not function correctly, and if experienced staff do not stand up and say that they believe new Officers require more training, then they are letting our team down, every new Officer will become an experienced Officer and the only way you gain experience is through trial and error and learning as we go.  Good luck and I hope you get it sorted and get back on the floor soon, remember the first year is always going to be hard, because you have to learn everything in such a short period of time, but we are here for you, we have all done the first year and I personally hated it, frustration at not knowing, and not getting it right, but hey, that is how we get experience.”[2]

    [2]  See affidavit of William Carl Yan filed 8 April 2015 at page 22

1. Mr Perez’s complaint was investigated by Kyra Andrews, who holds the position of audit and investigations officer with the Northern Territory Department of Correctional Services.  The Professional Standards Unit is intended to be both independent of and at arm’s length to the senior management of the Department.

2. As part of her investigation, on 19 August 2013, Ms Andrews arranged for Mr Brown to send her the CCTV footage of what had happened at G Block between 11:45am and 12:05pm on 12 June 2013.  From what he knew of Mr Perez’s complaint, Mr Brown judged this to be the relevant portion of the CCTV footage.  All other video coverage of the day in question has now been lost. 

3. Ms Andrews interviewed Mr Perez on 12 September 2013.  She also viewed the video footage sent to her by Mr Brown and examined documents relating to Mr Perez’s performance appraisal.  She also interviewed Mr Salmon; Mr Adeyemo; Ms Davey; Ms Bell; and Mr Tunney.  She had access to documents prepared by each of them.

4. Ms Andrews considered that the CCTV footage indicated that Mr Perez unlocked the security gate to G Block contrary to another officer’s direction.  Ms Andrews considered that this action had put both Mr Perez himself and other officers in potential danger.  She considered that what happened afterwards indicated an inability, on Mr Perez’s part to take constructive feedback and to accept responsibility for his actions. 

5. Ms Andrews also accepted evidence provided to her that there had already been several instances, reported to management, about Mr Perez’s poor work performance and inability to follow procedures or listen to instructions from more senior officers. 

6. In these circumstances, Ms Andrews did not consider there was any credible evidence to indicate that Mr Perez had been subject to harassment at the ASCC.  She also recommended that consideration be given to terminating Mr Perez’s employment, when his contract expired on 10 February 2014.

7. Ken Middlebrook is the Commissioner of Corrections.  On 15 October 2013, he released Ms Andrews report to Mr Perez and sought his comments in respect of it.  Mr Middlebrook asserted as follows:

   “Your complaint of alleged harassment by senior officers at the Alice Springs Correctional Centre has been investigated by the professional standards unit.  I have read the investigation report and am satisfied that the actions taken by staff at ASCC were nothing more than a performance management to assist you during your time as a prison officer in training.

   …

   I take this opportunity to encourage you to return to work at the Alice Springs Correctional Centre and complete your training.  I also remind you that as a POIT you are obliged to follow the directions from senior officers at all times and learn from their experience.”

8. Accordingly, in a formal sense, Mr Middlebrook took no action against Mr Perez.  To the contrary Mr Middlebrook encouraged him to return to work at the ASCC, whilst reminding him of his obligation to follow directions from more senior officers.

9. Mr Perez has consistently asserted that imputations have been placed on his personnel record at the Department of Corrections, which have damaged his reputation and caused him prejudice. 

10. I have not been provided with this record and do not know what it contains.  However, in a formal sense, it is clear to me that no disciplinary proceedings were commenced against Mr Perez and he was not sanctioned by the Department in any way.

11. Mr Perez submitted a workers compensation claim to the ASCC on 5 August 2013 claiming to have suffered a psychiatric injury whilst at work.  Liability was denied and proceedings were commenced, by Mr Perez, in the Northern Territory Work Health Court. 

12. As part of this process, Mr Perez sought access to the video footage of what had occurred at G Block on 12 June 2013.  It was at this stage that he discovered that only a portion of the surveillance material remained extant. 

13. It was and is Mr Perez’s positon that the viewing of the footage from 08.00 to 12.25 hours would provide vindication of his impugned behaviour on the date in question.  Mr Perez claims that the disruption of this footage has been highly prejudicial to him.  He asserts that it is probable that this footage would show other prison officers entering the courtyard, in the same manner as him, in respect of which he has been apparently criticised but they not.

14. He asserts that, if decision makers, relevant to his harassment claim had seen this footage, he would not have been subject to adverse actions by the Northern Territory Department of Corrections, particularly the failure to renew his contract of employment. What are those adverse actions is at the nub of this matter.

15. Mr Perez also believes that he has been subject to a concerted plan, by a number of officers at the ASCC, to discredit his conduct during the time he was a prison officer in training at the Alice Springs Correctional Centre. 

16. In effect, he asserts that he has been the victim of a conspiracy, particularly when he has attempted to alert senior staff about irregularities, which have occurred at the prison.  In these circumstances, he is dubious in respect of how it is now claimed that the relevant CCTV footage has been destroyed. 

17. I have no jurisdiction to adjudicate any claim for workers’ compensation brought by Mr Perez against the Department of Correctional Services.  That is a matter arising under Northern Territory legislation. 

18. I have however been informed that Mr Perez’s application, in this regard, has been stayed by the Northern Territory Work Health Court because Mr Perez has declined to attend for a psychiatric examination.  As previously indicated, the basis of his claim is that he suffered a psychiatric injury, whilst at work at the ASCC, which is denied by the relevant insurer.

19. The current application falls to be determined according to the provisions primarily contained in Chapter 3 of the Fair Work Act (2009) (Cth) (hereinafter referred to as the Fair Work Act).  This is the part of the Act which deals with the general protection of employees in the workforce. Mr Currie, counsel for the Department concedes that the Department is amenable to action under the Act.

20. In particular, Division 3 of the Chapter provides protection for workplace rights.  Mr Perez claims he has been subject to adverse action by the Department and its officers in contravention of a number of his workplace rights. 

21. If it is established that there has been a contravention of such a workplace right, the court is authorised to levy a penalty against the person who has committed such contravention.  In addition, the court is authorised to award compensation to the person who has suffered loss as a consequence of any such contravention.  Mr Perez seeks both such sanctions, against the Department and its individual officers.

22. The Department denies that it has illegally contravened any of Mr Perez’s workplace rights.  As such it opposes the making of any compensation order in Mr Perez’s favour or that either itself or any of its agents should be the subject of pecuniary penalties.  This proceeding is directed to resolving this controversy.

The application

1. Mr Perez has represented himself throughout these proceedings and prepared his own documents.  These documents are lengthy and annex numerous documents.  It has not been easy for me to distil what is his precise cause of action, other than he has an inchoate sense of grievance at how he perceives he has been treated by the Northern Territory Department of Correctional Services. 

2. Mr Perez commenced the proceedings on 13 March 2014.  He named the Northern Territory Department of Correctional Services as the sole respondent.  At this stage, he sought “compensation for loss of wages in the loss of wages in the sum of $541,749.78.” 

3. On 15 April 2014, Mr Perez filed a further application, which in addition to the Department of Corrections named Mr Yan; Ms Bell; Mr Tunney, Mr Salmon; Mr Brown; and Mr Ballantine; as additional respondents, although each of them is employed by the Department concerned.

4. The solicitors for the respondent have not objected to the addition of these further individuals, none of whom has sought separate representation.  In this application, Mr Perez seeks the following:

   i)Payment of compensation in the sum of $659,877.00;

   ii)A pecuniary penalty in the sum of $479,400 to be imposed on the Northern Territory Government;

   iii)Pecuniary penalties for each individually named respondent in the sum of $71,400.00;

   iv)Letters of apology from each respondent.

5. More recently again, on 10 June 2014, in a document entitled consolidated claim, Mr Perez has purported to add Mr Adeyemo as a seventh respondent.  In this application, he seeks the following:

   i)Compensation for lost future income, including superannuation and annual leave, in the total sum of $659,546.00 plus interest;

   ii)Imposition of a total pecuniary penalty, pursuant to section 546 of the Fair Work Act in a total of $459,000.00.  This includes penalties to be levied against each individually named correctional services employee and the Department itself;

   iii)Damages for “hurt and suffering” in an amount of $30,000.00;

   iv)Letters of apology from Mr Middlebrook; Mr Yan; Ms Bell; Mr Tunney; Mr Ballantine; and Mr Adeyemo.

6. In summary, Mr Perez claims that the various respondents named by him took adverse action against him, in contravention of section 340(1) of the Fair Work Act through the following actions: 

   a)By not allowing him to view the CCTV tape footage of the 12^th June 2013, when he purportedly requested to do so, in his email of 28 June 2013 to Mr Adeyemo, which was copied to Mr Tunney;

   b)By Mr Ballantine ignoring his request to view the same CCTV tape footage in his letter of complaint made on 24 July 2013;

   c)By purportedly allowing the destruction of the CCTV footage of 12 June 2013, which is said to be in contravention of a Commissioner’s directive dated 6 August 2003, which relates to the storage and disposal of video recordings used for monitoring purposes;

   d)The compilation of a prejudicial workplace performance appraisal by Mr Adeyemo on 27 June 2013;

   e)The convening of a formal performance management meeting by Mr Tunney and Ms Bell on 1 July 2013, which caused the applicant to suffer mental injury;

   f)The recommendation of Ms Andrews, made on 15 October 2013 that his contract of employment not be renewed after 10 February 2014;

   g)The suspension of Mr Perez, on full pay, by Mr Yan, on 24 December 2013;

   h)The administrative disregard or inaction accorded to Mr Perez’s complaints, made to his supervisors and managers, regarding the sabotage of Mr Perez’s work, as the security/reception officer at G Block on 12 June 2013;

   i)The subjection of Mr Perez to victimisation for filing a harassment complaint by the following actions:

   ·The fabrication of evidence against him by Mr Fullerton; Mr Adeyemo; and Mr Tunney;

   ·Subjecting him to repeated administrative and disciplinary actions based on fabricated evidence;

   ·Subverting his medical and mental progress, during his rehabilitation program, by making it impossible for Mr Perez to satisfactorily complete his twelve month contract of employment.

   ·Deliberately and wilfully destroying 97% of the CCTV footage to hide proof of the fabricated entrapment of Mr Perez on 12 June 2013.

7. The Northern Territory Department of Correctional Services initially responded to the application on 10 April 2014 and subsequently added further grounds of objection on 24 June 2014, after Mr Perez had purportedly added the additional individually named prison officers alleged to have taken adverse action against Mr Perez. 

8. In general terms, it is the Department’s position that, on 12 June 2013, Mr Perez entered G Block, when it was unsafe for him to do so.  Thereafter, it was both the right and the responsibility of Correctional Services staff members to raise the issue with Mr Perez and provide feedback in respect of it to him, particularly because Mr Perez was a prison officer in training at the time.

9. The Department further contends that Mr Adeyemo was both entitled and had a responsibility to conduct the performance appraisal, which he did, at Mr Perez’s request, and indicate areas of Mr Perez’s performance, which he (Mr Adeyemo) believed required improvement on Mr Perez’s part. 

10. This performance appraisal was conducted in good faith on Mr Adeyemo’s part and was factually based. Significantly it did not result in any adverse action being taken against Mr Perez within the meaning of section 342 of the Fair Work Act.

11. Thereafter, the Department contends that the content of Mr Perez’s email to Mr Adeyemo, which was copied to Mr Tunney, was demonstrative of a failure, on Mr Perez’s part, to accept constructive criticism of his performance.  Accordingly, it was warranted that Mr Tunney and Ms Bell convene the meeting of 1 July 2013, at which Mr Perez’s work performance was discussed. 

12. It is the position of the Department that this meeting was both justified and conducted in good faith.  The relevant officers, Mr Tunney and Ms Davey deny that Mr Perez was subject to any harassment and, in any event, no formal disciplinary action was taken against him.

13. In all these circumstances, the Department denies that it has either contravened any workplace right pertaining to Mr Perez or taken any adverse action against him, within the meaning of section 342 of the Fair Work Act.

14. In particular, the Department asserts that there is no workplace right arising in respect of the provision of reasonable guidance and feedback to an employee, which entitles that employee to challenge such guidance and feedback.

15. This is particularly so when the employee concerned is a prison officer in training working in the potentially hazardous area of the maximum security section of a correctional facility.  It is asserted that such employees are subject to the discipline and direction of correctional officers senior to them. 

16. The Department acknowledges that, for security purposes, activities in G Block were subject to video surveillance.  However, it denies that Mr Perez had any workplace right pertaining to his alleged entitlement to view such footage. 

17. As a consequence, the Department denies that it was under any obligation to preserve the entire video footage for 12 June 2013 or that it acted in a wilful or corrupt manner, when the video footage in question was lost.

18. The Department denies that it has subjected Mr Perez to any form of victimisation.  It contends that his complaint of harassment was properly investigated by Ms Andrews, during which process Mr Perez was given an adequate opportunity to present his various complaints, which were found to be lacking in credit. 

19. Mr Perez’s right to complain about his alleged harassment at the ASCC arose under the provisions of the Public Sector Employment and Management Act (NT), which entitles a public sector employee to request a review of behaviour in respect of which he or she feels aggrieved.  Mr Currie contends that the Department applied the appropriate mechanisms to Mr Perez’s various grievances.

20. In these circumstances, the Department contends that it is not open to Mr Perez to challenge the conclusions reached by Ms Andrews, which cannot be characterised as being unreasonable or capricious in any way.  In any event, these proceedings are not in the nature of an administrative review of Ms Andrew’s decision making process. 

21. Mr Currie argues that what Mr Perez really seeks from these proceedings and from his harassment complaint made to Ms Andrews is some form of vindication that he was not in error in entering G Block, as he did, on 12 June 2013 and has been falsely castigated for it.

22. Mr Currie contends that it is not necessarily the function of this court to ascertain the rights and wrongs of the incident.  Rather it is the responsibility of the court to examine whether the incident and what happened afterwards contravened any workplace right pertaining to Mr Perez, not to provide personal vindication to Mr Perez.  In any event, it remained open to the Department to provide what it considered to be reasonable feedback and constructive criticism about the matter.

23. However, the real substance of the Department’s position is that no adverse action was taken in respect of Ms Andrew’s recommendation, which was forwarded to Mr Middleton, who did nothing formally about it, other than to urge Mr Perez to return to work and remind him of the need to follow directions provided to him by more senior correctional officers.

24. Mr Perez was on sick leave between mid-July and mid-November of 2013.  It is the tenor of Mr Perez’s evidence that he considers that he sustained some form of injury as a consequence of the actions of the Department.  The Department denies this to be the case, but in any event asserts that the appropriate forum to adjudicate this issue is the Work Health Court of the Northern Territory.

25. On Mr Perez’s return to the ASCC, he was subject to a return to work plan.  This included a process of desensitisation, to which Mr Perez was not compliant.  Other performance issues arose in respect of his return to work and advice was received that Mr Perez may be at risk of sustaining further injury in the workplace.

26. In these circumstance, the Department contends Mr Yan appropriately elected to stand down Mr Perez, on full pay, on 24 December 2013 and that this action cannot be considered to constitute an adverse action within the meaning envisaged by section 342 of the Fair Work Act.

27. Finally, the Department contends that it was entitled to elect not to extend Mr Perez’s contract of employment, when it expired on 10 February 2014.  The contract in question was characterised as being temporary and ongoing employment was expressly subject to the satisfactory completion of the preceding twelve month contract.

28. In this case, the Department submits that it is patent that Mr Perez had not successfully completed his twelve months of prisoner officer training.  He had not completed the Certificate III in Correctional Practice and was either not capable of or unwilling to enter the main prison facility.  In these circumstances, it is contended that Mr Yan’s actions were authorised.

29. The Department seeks the dismissal of Mr Perez’s application and opposes the making of any penalty or compensation orders in his favour.

The evidence

1. In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observations of the demeanour of each of the witnesses concerned.[3] I have tried to reach my conclusions as to credibility and reliability, on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[4]

   [3]  See Evidence Act (1995) (Cth) at section 140

   [4]  See Fox v Percy (2003) 214CLR 118 at 129 [31] per Gleeson CJ, Gummow & Kirby JJ

2. In addition, I bear in mind section 140(2) of the Evidence Act, which indicates that in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.

3. These criteria reflect the well-known comments of Dixon J, in the case of Briginshaw v Briginshaw[5] as follows:

   “The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal.  In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

   [5]  Briginshaw v Briginshaw (1938) 60CLR 336 at 362

4. In this case, Mr Perez makes allegations of corruption, or at the very least, serious impropriety against several senior prison officers.  Such allegations should not be made lightly or in the absence of corroborative evidence. 

1. Mr Perez alleges that relevant evidence, which he asserts supports his case, has been knowingly destroyed, to cause him prejudice.  However, he has not himself seen this evidence.  The court must approach such allegations with caution.  Allegations of conspiracy cannot be established by innuendo or through inexact parallels to other situations. 

2. Mr Perez is a very proud person.  It is his evidence that he regarded it as a great honour, not only for himself but for the wider Pilipino Community in Alice Springs, that he was accepted into what he described as the prestigious position of prison officer in training.  Undoubtedly, Mr Perez accepted his job, with the Department, with great enthusiasm and a desire to acquit himself well in his employment.  He wanted to prove himself to be an exemplary prison officer. 

3. It is also my finding that Mr Perez has a somewhat difficult and, at times, querulous personality.  As such, he is not naturally inclined to accept criticism easily or to let it wash over him, particularly if he regards it as being unfairly based.  As such, he has a tendency to want to argue the toss in a persistent and pedantic manner. 

4. In addition, he does not easily let things go.  Rather, he has a marked propensity to bear a grudge, out of proper proportion, to any grievance of which he perceives he has been the subject.  In these circumstances, he has a tendency to ruminate on how he perceives he has been mistreated.  In this regard, in my assessment, he is likely to lack objectivity.

5. Mr Perez also has a heightened sense of self-regard and, from time to time, an over-weaning self-confidence in his abilities.  This is most evident in his description of how he believes he discharged his first day’s duties at G Block and his resentment at the criticisms made of him by Mr Salmon in respect of it.

6. It is my finding that Mr Perez has become fixated on what he believes is a great injustice wrought upon him on 12 June 2013.  As such, I do not believe that he is now capable of applying any objectivity to the events of 12 June and what happened after it.  Certainly, he has no capacity to see events from any perspective other than his own. 

7. As such, his judgment about how he has been treated, by various officers, particularly Mr Adeyemo, Mr Tunney and Ms Bell is entirely clouded.  As such, he is not likely to be a reliable witness.  I treat his evidence with some caution. 

8. In these circumstances, the respondent’s witnesses are likely to be far more reliable and to have a more dispassionate account of what occurred in various dealings between the Department and Mr Perez. 

9. Regrettably, it seems to me, that Mr Perez has a propensity to see conspiracies, where none exist.  In these circumstances, Mr Perez has attempted to extrapolate media reports of alleged irregularities, within the Department, as evidence to support his contention that institutional corruption exists at the ASCC.  This is not admissible evidence before me and establishes no such thing. 

10. In any event, regardless of my findings of Mr Perez’s credit, vis-à-vis other correctional services staff, the fact remains that there are significant numbers of documents, which have been contemporaneously generated, as Mr Perez’s various complaints have unfolded. 

11. In my view, a dispassionate analysis of the logic of these various documents is more supportive of the Department’s position than that of Mr Perez, who seemed to me to be incapable of making appropriate concessions, in the light of those documents.

12. As previously indicated, the nub of Mr Perez’s case is that he has in some way suffered a detriment, to his employment, as a consequence of the actions of various departmental staff [see Fair Work Act at section 342(1)].

13. I have not seen Mr Perez’s employment record with the Department.  Accordingly, I am unable to conclude that any detrimental notations have been made upon it.  However, it is clear to me that no formal disciplinary action was taken against him in respect of what happened on 12 June 2013. 

14. In addition, Mr Perez has provided no evidence to support his contention that he was the subject of rumour or innuendo, within the ASCC, as a consequence of what allegedly occurred.  It also seems to be the case that Mr Perez suffered no diminution, in either his salary or rank within the Department.  He was unable to attain his formal prison officer qualification because he was unable to enter the main prison facility and complete the required training. 

15. Mr Perez was the only witness called by the applicant himself.  The respondent relied on affidavits from Mr Yan; Ms Andrews; Mr Tunney; Ms Davey; Mr Fullerton; Mr Adeyemo; and Mr Brown. 

16. Of these witnesses, all but Mr Brown was cross-examined by Mr Perez.  On 6 May 2015, Mr Currie advised me that Mr Brown was unwell, due to a back injury.  A medical certificate was provided in support of this contention.[6]  Mr Perez indicated that he wished to cross-examine Mr Brown and sought a deferral of the case to accommodate it. 

    [6]  See exhibit C

17. Given Mr Brown’s unavailability; the explanation given in respect of it; and the nature of the evidence provided by him; I did not think it appropriate to grant Mr Perez’s application to adjourn the proceedings to a later date to accommodate his wish to cross-examine Mr Brown. 

18. Mr Tunney has been a correctional officer, at the ASCC, for eighteen years.  Since 2010, he has been in charge of training prison officers at Alice Springs.  My impression of him was that he is a highly experienced prison officer, who gave his evidence in a calm and measured way. 

19. In general terms, I accept Mr Tunney’s evidence, which is largely axiomatic, that prisons are potentially dangerous places because of the dispositions of the persons likely to be incarcerated there from time to time.  As such, prison officers must be continually vigilant and must adhere to directions given to them. 

20. As a consequence of this, the prison service is hierarchical in nature and quasi-militaristic.  The various officers wear uniforms, which carry designations of rank.  Necessarily, given that he had only been in the actual prison for around two months, at relevant times, Mr Perez was at the bottom of the hierarchy.

21. Mr Tunney’s evidence is that experience as a corrections officer is incrementally gained from experience derived in the actual prison setting.  Junior officers are expected to learn from senior officers and to accept directions readily and without significant demur. 

22. Such directions are intended to develop a cohesive body of officers, who trust one another’s judgment, so that they can react quickly and proportionately to any dangerous situations which occur in the prison.  As such, junior officers are subject to the disciplinary direction of more senior officers and should not question directions given to them, without proper foundation, as this may undermine such cohesion.

    a)The CCTV footage

23. At the request of both Mr Perez and Mr Currie, counsel for the Department, I have viewed the CCTV footage of what occurred in the area of G Block between 11:40.20 and 12.10.23 on 12 June 2013.  I viewed the footage in open court and Mr Perez was able to comment upon it and answer questions put to him by Mr Currie.  Salient portions of the tape were viewed on several occasions. 

24. The footage is taken from four cameras, two of which relate to the courtyard itself; one of which relates to the secure area behind the security gate; and one to the prison dining hall.  The quality of the footage is not high, as the cameras concerned are placed above the human actors in the various locations in question.  Light is particularly poor in respect of the security area. 

25. The CCTV does not record any sound.  As such, it is impossible to discern whether conversation took place between Mr Perez and others and certainly not the contents of any such conversations.  In my view, the footage, of itself, does not disclose definitively what actually occurred on the date in question.  Rather, it requires human interpretation. 

26. I was unable to discern any damaged garbage bin in the courtyard.  Corrections officers gathered in the secure area at around 11:45am.  The footage does not support Mr Perez’s contention that he was waiting 15 to 20 minutes at the security gate.  Under cross-examination he conceded that this was an estimate, which was obviously wrong.

27. Mr Perez appears to be the fifth officer to arrive.  When he does, he goes straight to the gate and appears to apply a key to what he accepted was the lock on the door.  Whether he actually unlocked the gate in question is unclear to me.  If he did, given what occurred next, this would have been an obvious breach of security.

28. The next thing, which occurs, is that Mr Perez moves away to another officer.  This seems to be his then mentoring officer, Mr Shaw.  Four other officers are in a loose line, some distance away and appear to be looking towards the courtyard through security screens. 

29. Mr Perez then returns to the gate.  He is walking briskly.  He then enters the courtyard by pushing the grill door open, at which stage a prisoner comes past him and then four other officers follow in what seems to be close proximity, in the sense that they do not have any great distance to walk from where they were standing in the secure area into the courtyard.  The officers concerned do not appear to walk at any great speed, but remain, as a group, in the centre of the camera’s view, in the courtyard. 

30. Mr Perez proceeds briskly away from the group, moving into the side of the courtyard, which is abutted by cells.  He appeared to me to be somewhat physically isolated from the other officers concerned. 

    b)     Mr Fullerton’s evidence

31. Mr Fullerton has been a corrections officer, at the ASCC, for approximately eight years.  He was present, at G Block, on 12 June 2013.  He has a different view of the incident to Mr Perez.  For the reasons which follow, I believe his account of what occurred on the day in question is likely to be more reliable than that of Mr Perez.  I reject any suggestion that Mr Fullerton has manufactured his evidence to discredit Mr Perez.

32. G Block is a maximum security area, which houses approximately fifty prisoners.  Prisoners are counted each day at 8:00am; 12:00pm; 3:30pm; with a final count at approximately 6:30pm.  For obvious reasons, the count has to be done with some rigour and the prisoners are mustered to enable them to be accurately counted. 

33. On the day in question, Mr Perez had been assigned to be the reception officer.  This meant, as I understand it, that he was to be effectively in charge of the counting process.  This was a novel experience for Mr Perez and it seems likely that he approached the task somewhat pre-occupied by it. 

34. In his evidence, he indicated that he was anxious for the muster to be completed in ample time for the prisoners to have their lunch, which usually took place at midday.  This is likely to explain what I viewed as a sense of expedition in his entry into the courtyard and his movement around it. 

35. It is Mr Fullerton’s evidence, which I accept, that when he arrived at the secure reception area, he noticed a smashed rubbish bin, with rubbish strewn from it, across the courtyard.  Mr Tunney’s evidence, again which I accept, is that such an incident should cause a prison officer’s antennae to vibrate, as it is likely to be indicative of some event or disturbance, pertaining to a prisoner or prisoners, having occurred within the prison area. 

36. It is Mr Fullerton’s evidence that he said to Mr Perez words to the effect of “what’s going on here, what’s happening here?” to which Mr Perez did not respond.  Mr Fullerton shared Mr Tunney’s opinion that the damaged bin should have caused a prison officer to go on alert, as it was likely to be indicative of some sort of contretemps having occurred within the maximum security section of the prison, which is its most dangerous part.

37. Mr Fullerton’s evidence appears to me to be inherently logical.  He was concerned and raised his concerns verbally.  It is also not surprising to me that Mr Perez did not hear what Mr Fullerton had said given his desire to get on with the midday muster as soon as possible.  I found Mr Fullerton to be credible in his account.

38. The gist of Mr Perez’s position is that he conducted a security assessment and deemed it safe to enter the courtyard.  This may be so, but Mr Fullerton disagrees with the thoroughness of Mr Perez’s security surveillance and asserts that it must have been flawed, either if he did not see the rubbish bin or elected to enter the courtyard anyway.  Again, this line of reasoning appears to me to be inherently logical. 

39. It is Mr Fullerton’s evidence that he would not have entered the courtyard without having made more observations from the secure area.  However, because Mr Perez entered the courtyard, he and his fellow officers felt compelled to follow Mr Perez in, to aid him if necessary, if some form of security breach was in train.  Mr Fullerton refutes any suggestion that he entered the courtyard with nonchalance.

40. It is Mr Perez’s position that there was nothing untoward in him entering the courtyard, which is established by the fact that the other officers concerned followed him into the courtyard without any great alacrity.  True it is that there was no great break between Mr Perez’s entry and that of the other officers.  However, as indicated earlier, in my view, what is shown on the video footage needs to be interpreted by those who were actually there. 

41. On balance, Mr Fullerton’s account seems to me to be the more reliable one.  I accept his evidence that Mr Perez’s entry, into the courtyard, was imprudent in the circumstances, which prevailed.  Certainly, I do not think that it was inappropriate for other officers to have queried Mr Perez about it, particularly given his junior status at the time.

42. It is Mr Fullerton’s evidence that he did not feel safe, whilst working with Mr Perez at G Block on 12 June 2013.  It is Mr Fullerton’s view that Mr Perez showed a lack of care for both his own safety, and the safety of other correctional services officers, because he was lax in maintaining security.

43. It is Mr Perez’s evidence that he believes Mr Fullerton and other officers engineered the situation in order to discredit him and interfere with his employment prospects at the ASCC.  Apart from his assertion of this contention, in my view, there is not a scintilla of evidence to support it. 

44. It seems farfetched, in the extreme, that Mr Fullerton or any other officer would be motivated to behave in such a way against a junior officer, who had only recently joined the Department.  In my view, the allegations made by Mr Perez are more indicative of his unusual personality and perhaps unsuitability to be a prison officer, which requires the maintenance of a significant level of esprit de corps with other officers, than of the existence of some conspiracy against him. 

45. Mr Fullerton has provided evidence of what he asserts is another example of Mr Perez’s failure to follow proper prison procedure, which was also potentially dangerous.  This related to the issue and re-collection of disposal razors to prisoners. 

46. Because of the dangers, which razor blades may pose, in the prison environment, it is required that there be a strict count on both the issue to and collection of razor blades provided to prisoners.  Mr Fullerton has deposed that Mr Perez did not follow this procedure correctly.  Mr Perez denies this allegation.  In my assessment, Mr Fullerton has no reason to be vindictive towards Mr Perez.  I accept his evidence that Mr Perez’s management of razor blades caused him concern. 

c)     Mr Adeyemo’s evidence

1. Mr Adeyemo gave his evidence in a calm and dignified manner.  He seemed to me to be genuinely perplexed by questions put to him by Mr Perez, which suggested that he bore the applicant some animus.  Mr Adeyemo appeared to me to be a professional officer.  He has been based at the ASCC for six years. 

2. On 12 June 2013, Mr Adeyemo was the supervisor of G Block.  His duties included the supervision of subordinate staff.  This included providing feedback to them in respect of their performance in the workplace.  Prior to 12 June, Mr Adeyemo had cause to provide such feedback to Mr Perez. 

3. It is Mr Adeyemo’s evidence that, in his assessment, Mr Perez struggled, from time to time, with the duties required of him.  In this regard, Mr Adeyemo deposes as follows:

   “It seemed to me that he [Mr Perez] did not take his lead from experienced officers and did not do proper risk assessment before performing some tasks.  The applicant appeared to struggle with some basic tasks which he should have covered in his off the job training and expected to have proven competent within the period served.”

4. Mr Adeyemo further deposes that he had cause to speak to Mr Perez about walking on duty with loose boots and not conducting a door unlock with his security keys attached to his belt hook, as per procedure.  This is important as it prevents possible removal of keys by a prisoner.  It is Mr Adeyemo’s evidence, which I accept, that correctional services officers have to be particularly vigilant, in respect of security, in the maximum security area.

5. Mr Adeyemo was present in G Block around the time of the midday muster.  He came into the security area and became aware of the broken rubbish bin, which had been damaged by a prisoner.  The incident caused him concern and he elected to investigate it of his own volition.  Given that he was the superior officer on G Block, at the time, this was his prerogative.  Accordingly, it is not the case that more junior officers reported the matter to Mr Adeyemo with the intent to get Mr Perez into trouble.

6. Mr Adeyemo was informed that Mr Perez had unlocked the security barrier and had apparently not observed the damaged rubbish bin.  Other officers indicated that they had seen the bin but were not consulted by Mr Perez prior to his unlocking of the security gate.  On the basis of this information, Mr Adeyemo was satisfied that there had been a potentially dangerous breach of security.

7. As a consequence of this, he forwarded an email to Mr Perez in the following terms:

   “Can you please provide me with a minute as to why you entered into the golf block reception unit courtyard by yourself without assessing the risks and after a rubbish bin was observed smashed up in the middle of the courtyard by a prisoner …”

8. In my view, this was an appropriate email and clearly fell within the remit of Mr Adeyemo’s responsibilities.  It does not indicate that Mr Adeyemo, or others within the ASCC, were intent on embarking upon some form of “witch hunt” involving Mr Perez.

9. As required of him, Mr Perez completed an email to Mr Adeyemo at 1.57pm on 12 June 2013, shortly after the incident in question had occurred.  It is a reasonably lengthy document of some thirteen numbered paragraphs. 

10. In the email, Mr Perez indicated that he had been standing at the grill gate for about fifteen to twenty minutes waiting for his mentor officer, before entering the courtyard for muster.  In cross-examination, Mr Perez conceded that this indication of time was grossly incorrect. 

11. He explained the error by saying that he had attempted to make an estimate of the time and had been merely mistaken in his estimate.  This seems to me to be improbable and self-serving evidence.  It seems more likely Mr Perez wished to give an impression that he had had ample time to do a thorough security check, and had therefore been let down by other officers.

12. In the email, Mr Perez indicates that he did not observe anything amiss in the courtyard, or see the damaged rubbish bin.  The word “not”, in the email, is capitalised, no doubt to emphasise the vehemence of Mr Perez’s denial.  The tone of the email is one of self-justification.  It did not accord with Mr Adeyemo’s understanding of the situation and what he himself had observed in G Block on the relevant day.  He saw the damaged bin.

1. In all these circumstances, Mr Adeyemo was concerned that Mr Perez had no proper appreciation of what had occurred, particularly in respect of the potential danger arising from a lapse in security.  Therefore he (Mr Perez) needed to be reframed in respect of it.  He was also concerned at the prolixity of the email from Mr Perez.  I accept Mr Adeyemo’s evidence that, in the hierarchical structure of the prison, minutes are required to be concise.

2. Given these circumstances, in my view, Mr Adeyemo was justified in rejecting the email and requiring Mr Perez to re-submit it.  I do not regard this as an example of bullying or harassment.  I accept that the situation, which had occurred at G Block, was potentially serious and Mr Adeyemo was duty bound to look into it. 

3. In my view, Mr Adeyemo was also entitled to provide feedback to Mr Perez about the incident, particularly as Mr Perez indicated that he had not seen the damaged rubbish bin.  Mr Adeyemo, like Mr Tunney, was of the view that the failure to see the bin indicated that Mr Perez’s metaphorical prison officer’s “antennae” were not operating properly at the time. 

4. As a result of this intervention, Mr Perez produced a second memorandum, in respect of the incident at G Block, in the following terms:

   “I entered courtyard of reception block in G Block with Mr Fullerton and four other prison officers.  Without claim to any prior security expertise and experience, my assessment of the situation did not ring any alarms.

   It is apparent that I need further training in security assessment and some literature/handouts to raise my awareness and situational assessment skills.”

5. In my view, the memorandum is appropriate and anodyne.  It reflects the gravamen of Mr Adeyemo’s concerns about the incident, namely that Mr Perez’s security assessment was flawed because he did not see the damaged rubbish bin, which other officers had done.  The memorandum has not been framed, in such a way, that it requires Mr Perez to express any excess level of criticism for himself.  Rather, it acknowledges that he made a mistake or error of judgment.

6. It is the import of Mr Perez’s evidence that he was, in effect, compelled to recant something he knew to be true, like Galileo before the Inquisition, and this was, of itself, injurious to him.  In my view, Mr Adeyemo was entitled to provide the feedback to Mr Perez, which he though was appropriate and it is immaterial whether Mr Perez agreed with it or not.  Mr Perez, in my view was not being penalised because he was some kind of whistle blower, speaking truth to authority.

7. At three monthly intervals, trainee prison officers are required to undergo a performance appraisal by a more senior officer.  This entails the completion of a pro forma document of three columns.  Against a number of criteria (the first column), the appraiser is required to place comments (the second column) and then detail any necessary action to be taken by the officer being appraised (the third column). 

8. Mr Perez was not the only trainee prison officer being appraised at the time.  In these circumstances, there was some demand for appraisers and Mr Adeyemo was not his first choice to carry out his appraisal.  However, Mr Perez was ultimately satisfied to ask Mr Adeyemo to carry out his appraisal and Mr Adeyemo was content to do it. 

9. Mr Yan has deposed that early performance appraisals, for prison officers in training, are “not a big deal”.  Their purpose is to identify areas in which the trainee may need help and assist them to learn from their mistakes.  The performance appraisals come to Mr Tunney, who is the senior prison officer in charge of training.

10. There are many positive comments in Mr Perez’s performance appraisal.  For example, Mr Adeyemo indicates that Mr Perez has good interpersonal skills and completed his tasks and work requirements during each of his shifts.  However, in two specific areas, Mr Adeyemo raised some specific criticisms. 

11. Firstly, under the criterion, “response to emergencies by following appropriate procedures while ensuring staff, prisoners and the public are not put in danger”, Mr Adeyemo wrote as follows:

    “I have observed and identified needs for Officer Perez to improve in the requirement to follow appropriate procedures in the conduct of his duties in the workplace without jeopardising the safety of staff, prisoners and the public.  He is require [sic] to be supervised and directed appropriately whilst he need to personally take responsibility for being conscious of security issues surrounding various activities and roles of a Prison Officer.  I have observed Officer Perez to sometimes, in the course being in a hurry to complete assigned tasks, has overlooked a number of factors that requires consideration to safely complete the task assigned to him.  I have personally pointed this out to Officer Perez in the past.  The most recent example is the exposure of himself and other Officers to risks whilst on duty in the Maximum Security on the 12^th of June 2013.”[7]

    [7]  See affidavit of Michael Adeyemo filed 15 April 2015 at annexure MA-4

12. Secondly, under the heading “ensures all reports and journal entries are clear, concise and accurate”, Mr Adeyemo wrote as follows:

    “Officer Perez journal entries are well written but he has omitted prisoners IJIS number and failed to record muster counts in his role as Golf Block Journal Keeper (Golf-1).  He submits reports as required and within required time frame to the best of his ability.  I have identified Officer Perez training need in Minute writing and advised him accordingly.”[8]

    [8]  See affidavit of Michael Adeyemo filed 15 April 2015 at annexure MA-4

13. On 11 June 2013, Mr Perez undertook his first day of duty as G1 Duty Officer at G Block.  As such, he was in charge of the G1 Journal and tallying muster counts of prisoners.  In this context, Mr Perez compiled a lengthy email, which he sent to Mr Salmon and Mr Tunney at 11.39pm on 11 June 2013.  The email begins as follows:

    “I am of the impression that the block count is almost as, if not as, sacred as the Good Book itself. Therefore, I came today to my first ever G1 duty with the object of having the G1 Journal, the Block Documents, and the Prison Officer’s body count to ALL match before the count is called into the gatehouse.

    I write you this email to relate the incidents that could have potentially made any of the three block counts below incorrect.  I, however subscribe to your wisdom and experience, as to how you would deal with them so that any future repetition may be prevented.”[9]

    [9]  See affidavit of Frank Tunney filed 8 April 2015 at annexure FT-2

14. Thereafter, Mr Perez recounted incidents in which he asserted there had been anomalies in various muster counts, which had caused him difficulties and which were not his fault.  As previously indicated, he ended the email with the self-congratulatory statement, “G1 and myself were made for each other”.

15. On 18 June 2013, Mr Salmon had raised what he considered to be concerns in respect of how Mr Perez had kept the G1 admin journal on 11 June.  Mr Salmon indicated that the musters needed to be recorded contemporaneously and when a prisoner entered or left the block concerned, his identification number noted.  This had not been done by Mr Perez.

16. Accordingly, in my view, it cannot be said that there was no basis for the comments made by Mr Adeyemo in Mr Perez’s performance appraisal.  In respect of both this incident and the rubbish bin incident, which occurred the following day, Mr Adeyemo provided what I consider to be unexceptional but appropriate feedback to Mr Perez.

17. In respect of the security incident, Mr Adeyemo urged Mr Perez to be more vigilant in future.  In respect of the journal incident, he was urged to practice his record keeping and it was indicated that he was likely to improve, if he had more on the job training in minute writing and journal keeping.

18. It was in this context that Mr Perez came to write the email to Mr Adeyemo and Mr Tunney, which the latter described as unusual.  I agree with that assessment.  The email is a detailed rebuttal of any criticism made of Mr Perez. 

19. In the email, Mr Perez asserted that, “experienced officers mysteriously mucked up my block doc not once, but twice”.  He asserted his opinion that being the G1 officer was the “toughest job in the ASCC”.  The tenor of the email is that he had done nothing worthy of criticism but, to the contrary, had done an exemplary job, notwithstanding the laxity and interference of more senior officers. 

d)    Mr Tunney’s evidence

1. Mr Tunney is the officer in charge of prison officer training at the ASCC.  During the first weeks of Mr Perez’s training, Mr Tunney received a number of memos regarding concerns raised by other officers in respect of Mr Perez.  These seem to have been of a relatively minor nature, relating to such things as incomplete uniform and the like.  Mr Tunney was more concerned about what occurred in respect of Mr Perez’s recording of prisoner counts and prisoner movements, as raised in Mr Perez’s email to Mr Salmon.

2. He was further concerned, when he received Mr Dean’s email of 17 June 2013, which indicated that Mr Perez lacked confidence and competence in handcuffing prisons.  In his evidence, Mr Perez has acknowledged some difficulties in respect of handcuffing, but vehemently refutes any suggestion of deficiencies in his block counts and journal entries.

3. Mr Tunney was concerned about the contents of Mr Perez’s email of 28 June 2013 for the following reasons:

   ·Mr Perez’s assertion that a prisoner’s identity could be established from the medical officer’s journal and therefore it was not necessary for him (Mr Perez) to have noted the IJIS[10] number in the block journal;

   ·Mr Perez’s comment that the errors asserted against him had been committed, in the past, by more experienced officers;

   ·Experienced officers had mysteriously mucked up his block document, not once, but twice;

   ·An experienced officer of one block did not report to him prisoner movements, again not once, but twice; and

   ·Mr Perez’s view that notwithstanding these difficulties, he had done “one hell of a job”.

   [10]  This is apparently an identity number used for prisoners, each of whom has such a number, which is unique to him.

4. The tone of this email, when coupled with what he knew of the incident at G Block on 12 June 2013, caused Mr Tunney some concern.  In particular, he formed the view that Mr Perez was not willing to accept criticism of his work but rather responded to valid feedback with defensive excuses and allegations against others. 

5. In his evidence, Mr Tunney deposed as follows:

   “... I formed the view that the Applicant failed to follow the correct procedures in relation to muster and prisoner movement records; that the Applicant suggested that the records were changed by an unspecified prison officer, and the Applicant did not appear to have the ability to properly assess risk or seek direction from senior prison officers in the presence of a potential risk.”[11]

   [11]  See affidavit of Frank Tunney filed 8 April 2015 at paragraph 15

6. In my view, Mr Tunney was entirely justified in calling the meeting of 1 July.  Although Mr Perez may have a different view about the quality of his work and may feel the criticisms of him were unjustified, Mr Tunney was entitled to summons Mr Perez to a meeting.  In addition, it must be noted that this was not a disciplinary hearing per se.  Rather, its intention was to discuss performance issues with Mr Perez. 

7. On 3 July 2013, Mr Tunney received further concerns, from other officers, regarding Mr Perez’s performance at the ASCC.  These included that he had failed to follow correct procedures, when unlocking prisoners from their cells and had not attended at M Block with keys and radio. 

e)     Ms Davey’s evidence

1. Ms Davey is the Union Delegate for United Voice at the ASCC.  She is also a member of the Northern Territory Prison Officers Association.  She is currently a Senior Prison Officer.

2. On 1 July 2013, Deputy Superintendent Bell asked her to attend a meeting with herself, Mr Tunney and Mr Perez.  She did not attend the meeting at the instigation of Mr Perez, who was unaware that she would be attending.  It was Ms Davey’s understanding that she was requested to attend the meeting, by Ms Bell, to ensure that it was fairly and appropriately conducted from Mr Perez’s perspective. 

3. Another prison officer, Ms Steinborner, also attended the meeting to take notes.  I have been provided with a copy of Ms Steinborner’s notes but she did not give evidence in the proceedings.

4. It is Ms Davey’s evidence that, at the outset of the meeting, Ms Bell informed Mr Perez that the purpose of the meeting was not a disciplinary one but was to inform him of difficulties, which had been perceived by management, to have arisen in respect of Mr Perez performing some of his duties and to ascertain how those problems could be resolved. 

5. Ms Davey does not believe that Mr Perez was harassed or bullied during the meeting.  Mr Perez does not accept this evidence, it is his view that he was spoken down to by senior officers and rebuked “like a little boy”. 

6. It seems likely that the tone of the meeting was somewhat formal with Ms Bell and Mr Tunney doing much of the talking.  It is also clear from Ms Steinborner’s notes that Mr Perez was criticised for the contents of his emails to Mr Adeyemo.  As such, the meeting was not analogous to a cosy chat.  It is likely that it was somewhat stern because from Mr Tunney’s perspective Mr Perez did need to be reframed in his attitude to his training.

7. However, in my view, that does not necessarily make the meeting one characterised by the bullying or harassment of Mr Perez.  In this context, in my view, the evidence of Ms Davey is, in balance, likely to be more reliable than that of Mr Perez, whom I have found to be lacking objectivity about his circumstances within the hierarchy of the ASCC.

8. From Mr Tunney’s perspective, the main topic of the meeting was Mr Perez’s email, which Mr Tunney assessed as indicating that Mr Perez had difficulty accepting responsibilities for his actions and mistakes; was unable to take constructive criticism from general staff members during this on-the-job training; and used deflection onto other staff, when it was his work behaviour that was under discussion.

9. Following the meeting of 1 July, it was Mr Tunney’s view that it had achieved little.  Much of the focus of the meeting was in respect of the security incident, at G Block, on 12 June 2013.  From Mr Tunney’s perspective, Mr Perez did not accept that he had been remiss, in any way, in entering the courtyard.  At the end of the meeting, Ms Bell asked Mr Perez if he had any questions.  Ms Steinborner’s notes indicate that Mr Perez replied, “didn’t go into the block alone”.

10. From Mr Perez’s view point, the meeting of 1 July was a quasi-show trial, in which he was required to assert something which he did not believe was true.  From the perspective of the prison management, they wanted Mr Perez to acknowledge what they believed were a series of serious procedural mistakes made by a junior officer in training.  This difference in perspective has never been resolved.

e)     Mr Brown’s evidence

1. Mr Brown has been a correctional officer for 20 years.  He is currently employed as a Senior Correctional Officer in the Intelligence Unit at ASCC.  Part of his responsibilities is to maintain and monitor CCTV cameras within the ASCC and supply necessary video evidence for court.

2. His duty statement includes the following responsibilities:

   ·Supervise audio/video evidence that may be required for court;

   ·Maintain and monitor electronic surveillance cameras for security purposes;

   ·Provide up to date information on prisoners or prisoner activities to the security group or area managers; and

   ·Liaise with the professional standards unit regarding security matters related to ASCC.

3. I accept that Mr Brown’s primary responsibilities relate to security issues within the ASCC.  On 19 August 2013, Ms Andrews requested Mr Brown to supply her with “a copy of the CCTV footage of 12 June 2013 incident in G Block courtyard and grill area from 11am – 12?”  This email explains the provenance of the video footage tendered in the current proceedings.  Mr Brown had no direct involvement with Mr Perez about the incident and received no direct request from him in respect of viewing the CCTV footage.

4. As previously indicated, CCTV footage is maintained on the server at the ASCC for a period of approximately nine weeks before it is automatically overwritten by new material.  Mr Perez asserts that Mr Brown was obliged to retain all video footage of what occurred, on 12 June 2013, because there are now legal proceedings on foot, which concern the day in question and he (Mr Perez) wishes to see it.  In this context, Mr Perez asserts that his workplace rights have been contravened because CCTV footage prior to 11:45am has been destroyed.

5. Pursuant to a directive of the Commissioner of Corrections, issued on 6 August 2003, video recordings required for investigative or evidentiary purposes are to be retained for 12 months after finalisation of the court proceedings to which they relate.  It is Mr Perez’s contention that Mr Brown has breached this directive.

6. I do not accept that this is the case.  Firstly, Mr Brown’s obligations related primarily to security issues within the prison, which might lead to the prosecution of individuals for criminal offences.  This was not the situation so far as Mr Perez was concerned. 

7. Secondly, in any event, Mr Brown did what was asked of him by Ms Andrews.  He obtained the footage which related to the incident of 12 June 2013.  Thirdly, Mr Brown did not actively destroy the footage now said to be of such important to Mr Perez.  Rather, this material was routinely destroyed.

8. The forensic purpose, which Mr Perez contends relates to the footage of events earlier on the day of 12 June 2013 is that it may show other officers entering the courtyard alone.  If it does, Mr Perez asserts that this will provide some form of vindication of his behaviour.  However, the gravamen of Mr Tunney and Ms Bell’s criticism of Mr Perez is that he was not amendable to receiving feedback about his own activities but rather attempted to deflect blame onto others. 

9. In my view, Mr Perez’s fixation with the earlier portions of the CCTV footage is emblematic of this.  In addition, in my view, it must be conjecture that the footage would have indeed revealed officers entering the courtyard alone.  In any event, so far as Mr Perez was concerned, what was important was the context in which he entered the courtyard, namely, the damaged rubbish bin. 

10. In all of these circumstances, I do not consider that Mr Brown was under any obligation whatsoever to keep the footage for the whole of 12 June 2013.  In addition, there is no scintilla of evidence to suggest that Mr Brown wantonly or deliberately destroyed this evidence. 

11. In all of these circumstances, I was not prepared to adjourn the proceedings in order to allow Mr Perez to cross-examine Mr Brown on the basis of his conjectures about the contents of the tape and why he (Mr Perez) believed it was no longer available. 

e)     Ms Andrews’ evidence

1. Ms Andrews was tasked to investigate Mr Perez’s complaint that he had been harassed by Mr Ademeyo, Mr Tunney and Ms Bell.  As a consequence, she conducted a formal interview with Mr Perez on 12 September 2013.  The gravamen of Mr Perez’s complaint, is that his explanation of the circumstances which had caused him to enter G Block had neither been accepted nor had he had the opportunity to put his explanation. 

2. Rather, Mr Ademeyo had given him “a sermon” and Mr Tunney had “lectured” him.  In this context, Ms Andrews asked Mr Perez whether he had been penalised as a consequence of the incident.  To which he replied as follows:

   “Well, I don’t know what you mean penalised, but for me, being confronted four times for something I did not do is very, very disturbing.  Very, very disturbing, especially by higher ranking officers.  They did not, at any time discuss my explanation …”

1. Pursuant to section 24 of the Public Sector Employment and Management Act (NT), the Commissioner of Corrections is required to implement “an employee performance management and development procedure”.  As a consequence of this, the Commissioner of Corrections was required to ensure that the various employees at the ASCC received regular and relevant feedback on their work performance and capability through timely and fair assessments of their work.  It was as a consequence of this direction that Mr Perez was, as was every other corrections officer at the ASCC, subject to regular performance review.

2. In these circumstances, both Mr Ademeyo and Mr Tunney were authorised to conduct the performance review in respect of Mr Perez and provide feedback to him about it.  In this context, Ms Andrews considered that the remit of her investigation was to determine whether Mr Perez had been harassed during the process of his work performance being appraised.

3. In the course of her investigation, Ms Andrews interviewed Mr Salmon; Mr Ademeyo; Ms Davey; Ms Bell; and Mr Tunney.  Ms Bell, Mr Tunney and Mr Ademeyo denied harassing Mr Perez.  Mr Salmon indicated that he was not authorised to view CCTV footage from G Block but in any event, indicated that he had no need to view it because Mr Perez was not being punished in respect of anything that had occurred on 12 June. 

4. In her report, Ms Andrews said as follows:

   “All of the officers names in Mr Perez’s complaint had a responsibility to discuss their issues/concerns with Mr Perez as they were all at a higher rank.  There had already been several instances reported to management about Mr Perez’s poor work performance as he had not been following procedures or listening to instructions from Senior Officers.  Mr Perez holds a base rank of POIT and does not have the same level of experience or knowledge as the other officers whom Mr Perez has accused of harassment.”[12]

   [12]  See affidavit of Kyra Andrews filed 14 April 2015 at annexure KA-14

5. Ms Andrews was not satisfied that Mr Perez had been harassed by any of the officers concerned.  In addition, having viewed the minutes of the meeting of 1 July 2013, Ms Andrews was satisfied that the meeting had focused on performance management issues relating to Mr Perez.

6. Ms Andrews’ findings are consistent with my assessment of the evidence available to me.  I do not accept that Mr Perez was harassed by Mr Adeyemo, Mr Tunney or Ms Bell.  Rather, it is more likely that Mr Perez took umbrage that what he viewed as his justification for entering G Block was not accepted.  As previously indicated, it is my assessment that Mr Perez is not a person who readily accepts criticism. 

e)     Mr Yan’s evidence

1. Mr Yan has been the Superintendent of the ASCC since early 2013.  He is the senior officer at the prison and has responsibility for its operation and its staff of around 220.

2. A prison officer in training is offered a year’s contract with the ASCC with the expectation at the conclusion of the contract he or she will have successfully completed a Certificate III in Correctional Practices, which is a mandatory requirement for appointment as a prison officer.

3. Mr Yan has deposed that, given the risk factors and dangers inherent in a prison situation, it is imperative that prison officers be aware of their surroundings and work together as a team to minimise risk to themselves, fellow officers and prisoners.  From Mr Yan’s perspective, trust between prison officers is based on an ability to listen to and follow directions from more senior officers. 

4. Mr Yan was not directly involved with the oversight of Mr Perez during his period of training at the ASCC.  As such, he was not involved in Mr Perez’s performance appraisal.  He did however, meet with Mr Drake, the Northern Territory Prison Officer’s Association Representative, and Mr Ballantine, on 2 July 2013, to discuss issues raised with the Association by Mr Perez.  Mr Perez had contacted Mr Drake to obtain advice as to how he (Mr Perez) could make a formal complaint of workplace harassment.

5. Mr Yan has deposed that Mr Drake did not raise any further concerns with him regarding the treatment of Mr Perez.  It was in this context that Mr Drake wrote to Mr Perez advising him of the inherent challenges of being a prison officer and the importance of cohesion, between officers, in the prison service.  Some of the contents of this correspondence is to be found earlier in this judgment.

6. Mr Yan became aware that Mr Perez had gone on sick leave sometime in July of 2013.  He was advised by Ms Bongiorno, on 13 August 2013 that Mr Perez had lodged a claim for workers compensation.  Claims for compensation by Northern Territory Public Sector employees are handled by the Northern Territory Department of Corporate and Information Services.  Ms Bongiorno is employed by this Department.

7. There is no dispute between the parties that Mr Perez’s workers compensation claim was not accepted.  As a consequence, he was required to return to work under the aegis of a rehabilitation provider.  This was Balance Workforce Solutions, who prepared a return to work plan for Mr Perez. 

8. Under the plan, Mr Perez was to return, on a graduated basis, to his previous level of employment.  On this basis, it was planned that he would work every alternate day and would initially commence his duties in the management zone of the ASCC, with a shadow prison officer to assist him.  Under the plan, Mr Perez returned to work on 12 November 2013.

9. It is Mr Yan’s evidence that there were difficulties with Mr Perez’s compliance with the return to work plan from its instigation.  In particular, Mr Perez indicated that he would be unable to work with two identified prison officers, one of whom was Mr Fullerton.  Nor would he be able to work in the management area.  In lieu thereof, Mr Perez sought assignment to The Cottages – a low security area – outside of the main prison for a period of four months.

10. From Mr Yan’s perspective, there were managerial issues relating to Mr Perez’s stipulation that he be placed in The Cottages.  The main issue being that this placement would not count towards Mr Perez’s acquisition of a Certificate III qualification, as it would not provide him with the requisite amount of training in corrections, which necessarily must take place within the prison setting.  Nonetheless, Mr Yan agreed to Mr Perez’s request. 

11. On 25 November 2013, Mr Yan became aware that Mr Perez had indicated that he was incapable of entering the main prison.  A few days later, he agreed to Mr Perez staying at The Cottages.  As a consequence, Mr Perez’s return to work plan was amended.

12. Part of this plan consisted of a desensitisation strategy for Mr Perez.  The plan notes that Mr Perez’s general practitioner had recommended that he should view the CCTV footage of the incident that had occurred on 12 June, however Mr Perez had declined to do so, if it meant that he had to enter the ASCC.  Mr Yan authorised alternative arrangements to allow Mr Perez to view the video footage.

13. On 13 December 2013, Mr Perez was directed to provide nine bed packs for incoming prisoners to The Cottages.  It seems clear that Mr Perez took umbrage at this direction, as he construed it as an attempt to demean him in front of prisoners. 

14. It is Mr Yan’s evidence, which I accept, that it was implicit in the direction to Mr Perez that he could delegate this responsibility to a prisoner or prisoners and was indeed expected to do so.  In these circumstances, Mr Yan was concerned at the contents of Mr Perez’s email, which raised allegations of constructive dismissal and aggravation of his alleged workplace injury.

15. Mr Perez’s rehabilitation provider was Ms Fleur Levot.  She reported to Mr Yan her concern that the desensitisation process for Mr Perez was not being successfully implemented, as Mr Perez had not been able to enter the main prison on a routine mail run.  He had been able to touch the front door of the prison, but had been unable to get any further. 

16. Ms Levot further reported to Mr Yan that this incident had been observed by prisoners at The Cottages and, in these circumstances, she was concerned that other prisoners might view Mr Perez as being a vulnerable prison officer and this might compromise security and safety issues within the prison.  Ms Levot also reported her concerns to Mr Yan that Mr Perez was not compliant with the return to work plan.

17. Significantly, Ms Levot also advised Mr Yan that she had discussed with Mr Perez the fact that if he was not prepared to enter the main prison, he would be unable to work as a prison officer.  Thereafter, Mr Yan discussed Mr Perez’s situation with Ms Bongiorno and colleagues within the ASCC. 

18. Mr Yan formed the view that it was unlikely Mr Perez would complete the training required of him to become a prison officer.  Shortly prior to Christmas, Mr Yan received a communication from Ms Bongiorno, which indicated that she was concerned about the safety of Mr Perez at the ASCC.  In these circumstances, Mr Yan determined to stand down Mr Perez on full pay and not renew his contract.

The legislative framework and relevant principles

1. Part 3-1 of the Fair Work Act 2009 (Cth) (“the Act”) is headed General Protections. Pursuant to section 340(1) a person must not take “adverse action” against another person because that other person has a workplace right. 

2. Section 341 provides the definition of workplace right.  A person has such a right if he or she:

   “(c)is able to make a complaint or inquiry:

   (i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

   (ii)if the person is an employee—in relation to his or her employment.”

3. The expression workplace law is defined within section 12 of the Act. It includes any law of a state or territory that regulates the relationship between employers and employees, including dealings in respect of occupational health and safety matters.

4. I am satisfied that Mr Perez was entitled to make a complaint or enquiry, regarding his employment, pursuant to the provisions of the Public Sector Employment and Management Act (NT).  Accordingly, the central issue in this case is whether the Department, or of its officers, have taken adverse action against Mr Perez.

5. Section 342(1) contains a table setting out the circumstances in which a person is treated as having taken adverse action against another person.  The first item of the table provides as follows:

   “Adverse action is taken by an employer against an employee if the employer:

   (a)dismisses the employee; or

   (b)injures the employee in his or her employment; or

   (c)alters the position of the employee to the employee’s prejudice; or

   (d)discriminates between the employee and other employees of the employer.”

6. In Patrick Stevedors Operations No.2 Pty Ltd v Maritime Union of Australia & Ors[13] the High Court discussed the expression injure an employee in his or employment and concluded that the expression encompassed:

   “…a broad additional category which covers not only legal injury but any adverse affectation of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.”

   [13]    Patrick Stevedors Operations No.2 Pty Ltd v Maritime Union of Australia & Ors (1998) 195 CLR 1 at [4].

7. It is Mr Perez’s contention that the actions of the Department, through its various agents, have caused him an injury of this kind.  As such, he has been subject to illegal adverse action. 

8. Employers can take a particular action against one of its employees for a combination of reasons, some potentially illegal; some potentially not.  In this case, the Department contends it took the various actions, of which Mr Perez complains, in respect of him, for operational reasons and pursuant to its obligations, arising under the Public Sector Employment and Management Act to provide him with regular and relevant feedback on his work performance.  Mr Perez contends otherwise.

9. In these circumstances, section 360 and section 361 of the Fair Work Act are relevant.  Section 360 is headed Multiple reasons for action and reads as follows:

   “For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.”

10. Section 361 provides as follows:

    “Reason for action to be presumed unless proved otherwise

    (1)If:

    (a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

    (b)taking that action for that reason or with that intent would constitute a contravention of this Part;

    it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

    (2)Subsection (1) does not apply in relation to orders for an interim injunction.”

11. Section 361 creates a reverse onus. The onus is on the employer rather than the employee to establish why a person was adversely affected, in the workplace. If this onus is not discharged, it is to be assumed that the action in question was taken for a prohibited purpose.

12. In this case, Mr Yan, Mr Tunney and other employees of the Department deny any adverse action was taken against Mr Perez in respect of what happened, in G Block, on 12 June 2013 and afterwards.  Mr Perez contends otherwise.  If it is established that there was adverse action, which the Department denies, the onus is on the Department to establish that it had legitimate reasons for doing what it did.

13. It is clear that action adverse to Mr Perez was taken by the Department, when he was stood down in December 2013 and his employment terminated in February of 2014. In these circumstances, the onus is on the Department to establish what were the reasons for these actions and that they were not prohibited by virtue of section 341.

14. In Board of Bendigo Regional Institute of Technology and Further Education v Barkley[14] the High Court, (French CJ and Crennan J) said as follows in respect of the onus created by section 361:

    This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.

    [14]  Board of Bendigo Regional Institute of Technology and Further Education v Barkley (2012) 248 CLR 500 at [50]

15. In Shortv Ambulance Australia[15] the Full Court of the Federal Court (Dowsett, Bromberg and Murphy JJ) provided an erudite and useful summary, in respect of the application of section 361 and the authorities which relate to it, as follows:

    When an employee alleges that an employer has taken action against him or her because the employee exercised a workplace right s 361 casts the onus on the employer to “prove otherwise”.  Under s 360, while there may be multiple reasons for an employer to have taken the adverse action, the employer takes action for a prohibited reason if the reasons for the action include that reason.  The rationale for the presumption was explained by Mason J in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 617 per Mason J as being to throw on to the employer the onus of proving that which lies peculiarly within its own knowledge (cited with approval in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [50] (French CJ and Crennan J)).

    Where adverse action is taken by one person against another, the task of a court in a proceeding alleging contravention of s 340 or s 351 is to determine why the person took the adverse action and to ask whether it was for a prohibited reason or reasons which included a prohibited reason (Barclay at [5], [44] per French CJ and Crennan J).  The question is whether a prohibited reason was a “substantial and operative” reason for the respondent’s action (Barclay at [104] per Gummow and Hayne JJ, see also [59] per French CJ and Crennan J).  The relevant inquiry is therefore into the “particular reason” of the decision-maker for taking action (Barclay at [42] per French CJ and Crennan J, [102] per Gummow and Hayne JJ), which is a determination of fact to be made by the court taking account of all the facts and circumstances of the case and available inferences (Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 88 ALJR 980 at [7] per French CJ and Kiefel J, Barclay at [45] per French CJ and Crennan J, [79] per Gummow and Hayne JJ).

    To displace the presumption created by s 361 in light of the effect of s 360, the respondent must prove that its conduct was not motivated in whole or in part by the prohibited reason alleged.  A failure to displace the presumption enables the allegation by an applicant of adverse action for a prohibited reason to stand as sufficient proof of that fact: Davids Distribution Pty Ltd v National Union of Workers (1991) 91 FCR 463 at [109] per Wilcox and Cooper JJ.

    [15]  Shortv Ambulance Australia [2015] FCAFC 55 at [54] – [56]

16. Given this formulation, the matters to be resolved by the court, in this matter, are as follows:

    ·Was adverse action taken against Mr Perez, by the Department, in respect of what occurred at the ASCC following the 12 June incident in G Block;

    ·If so, what was the reason for this action and was it a prohibited reason.  The onus being on the Department.

    ·Does Mr Perez have any workplace right in respect of the video footage of what occurred in G Block on 12 June 2013;

    ·If so, has the Department taken any adverse action in respect of this right and for what reason;

    ·Given that the standing down of Mr Perez on 24 December 2013 was adverse action, within the meaning of section 342(1), what was the reason for this action and was it prohibited under section 341;

    ·Given that the termination of Mr Perez, in February of 2014, was adverse action within the meaning of section 342(1), what was the reason for this action and was it prohibited under section 341.

Was what happened after the G Block incident adverse action

1. I accept that Mr Perez was entitled to complain, as a consequence of his perception that he had been harshly dealt by Mr Adeyemo and Mr Tunney following the incident at G Block. 

2. It is Mr Perez’s view that he was unfairly singled out by the officers concerned because they erroneously believed that he had entered the courtyard, when it was unsafe for him to do so. 

3. In my assessment, the evidence does not indicate that Mr Perez was picked on, in this way.  Rather, the officers concerned had legitimate concerns about Mr Perez’s work performance on the day in question, which senior staff were entitled to raise with Mr Perez and provide feedback to him.

4. In addition, I do not consider that any adverse action was taken against Mr Perez, as a result of the incident. In my view, there is no evidence to indicate that Mr Perez’s employment with the Department was injured in the sense envisaged by section 342(1)(b) of the Fair Work Act. 

5. No decision was made, by either Mr Tunney or other officers senior to him, to alter any incident of Mr Perez’s employment with the Department.  He remained a prison officer in training.  He was not demoted or formally disciplined.  There is nothing to indicate that any black mark, either figurative or actual, was placed on Mr Perez’s employment record with the Department. 

1. In any event, I am satisfied that Mr Adeyemo, Ms Tunney and Ms Bell were entitled to give feedback and indeed criticism to Mr Perez, as to how each perceived that he (Mr Perez) was carrying out his duties as a prison officer in training. 

2. It was the provision of this legitimate feedback, which caused Mr Adeyemo to write the memo and then performance appraisal, of which Mr Perez complains and thereafter for Mr Tunney and Ms Bell to convene the meetings relating to Mr Perez work performance. I find that the actions of the officers concerned were legitimate and the Department has discharged the onus on it arising from section 361.

The CCTV footage

1. In my view, the evidence available in this case establishes that the Department created CCTV vision footage of what occurred, on a daily basis, at the ASCC, for security purposes. 

2. In these circumstances, I do not accept that Mr Perez had any entitlement, stemming from his employment with the Department, to view footage, which contained images of either him or other prison officers employed at the ASCC.  In any event, Mr Perez has been able to access the footage of the incident, as a consequence of which he asserts he was unfairly castigated. 

3. I reject the submission that either Mr Brown or other officers were legally required to retain CCTV footage of events, which occurred prior to around 11:24am on 12 June 2013.  Mr Perez seeks access to this footage because he asserts that it will establish, in effect, that other officers presumably did what he did and entered the courtyard alone, but were not criticised.  This evidence is said to support his contention that there is some form of conspiracy against him, by other officers at the ASCC. 

4. I reject this contention.  In my view, the evidence is clear that the CCTV footage, which Mr Perez now wishes to examine, was routinely and legitimately destroyed.  In my view, there is no evidence to support Mr Perez’s claim that other officers, at the ASCC, were malignly motivated against him and staged the rubbish bin incident to discredit him. 

5. For these reasons, I reject Mr Perez’s submission that he has suffered any adverse actions as a consequence of the destruction of the CCTV footage.  Mr Perez did not have a right to appeal to the “video footage”.  As such, in my view, there is no substance to his claim of administrative inaction on the part of Mr Ballantine.

6. In addition, in my view, it does not affect the legitimacy of Mr Adeyemo and Mr Tunney’s criticisms of his performance in the workplace that neither officer viewed the section of the footage, which was played in court and which was isolated for Ms Andrews’ investigation.   

7. Having viewed the footage myself and having heard the evidence of Mr Fullerton and Mr Adeyemo, I am satisfied that the Departmental officers concerned were entitled to provide the legitimate feedback, regarding Mr Perez entering the courtyard, when it was considered unsafe for him to do so. 

The standing down of Mr Perez on 24 December 2013

1. In generic terms, I accept that the standing down of Mr Perez, by Mr Yan, on 24 December 2013, was injurious to Mr Perez’s employment, notwithstanding that he continued to receive his regular remuneration.

2. However, in my assessment, the reason Mr Yan determined to stand Mr Perez down was for a legitimate reason, relating to the safe and proper operation of the ASCC, including the safety of Mr Perez himself.

3. In this regard, I accept Mr Yan’s evidence that he considered it unsafe for Mr Perez to remain working, at the ASCC, given his apparent inability to enter the main prison facility and his unusual behaviour in The Cottages. 

4. In these circumstances and given the assessment of Ms Bonjiornio, it would have been operationally unacceptable for Mr Yan to do anything other than what he did in regards to Mr Perez.  Otherwise, there was the potential for harm to come to both Mr Perez and others, both prisoners and officers, working within the ASCC. 

The termination of Mr Perez’s employment

1. Mr Perez was employed on a one year temporary contract as a prison officer in training.  He did not complete his training successfully, as he did not satisfy the necessary prerequisites to be granted a Certificate III in Correctional Practice.

2. The main reason Mr Perez was unable to obtain the prerequisite certificate was because he was either unable or unwilling to enter the main prison facility, at the ASCC, and perform the duties of a correctional services officer.  In these circumstances, Mr Yan had no alternative other than to elect not to extend Mr Perez’s contract of employment as a correctional officer. 

3. For all these reasons, I have come to the conclusion that the Department and the various respondents named by Mr Perez have not taken any adverse action against him, which is prohibited by the provisions contained within Part 3-1 of the Fair Work Act.  For that reason, it must follow that Mr Perez’s application should be dismissed.

4. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.  

I certify that the preceding two hundred and sixty-nine (269) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:                  29 May 2015