Industrial Relations Commission New South Wales Medium Neutral Citation: Donald Harry Bethel and Director General, Department of Premier and Cabinet, Department of Attorney General and Justice (Corrective Services NSW) [2013] NSWIRComm 1006 Hearing dates: 23 August 201224 August 2012 Decision date: 12 April 2013 Before: Tabbaa C AM Decision: Claim Dismissed Catchwords: Unfair Dismissal application; Alleged head-butt of inmate; Charge of Common Assault; Guilty finding in Local Court; s 10 (1)(b) bond imposed for 12 months; Appeal to District Court; Guilty finding maintained but dismissed the charge pursuant to 10 (1)(a); Dismissal for serious misconduct; Applicant maintained denial of wrongdoing; No remorse or acknowledgement of gravity of actions; Respondent discharged onus of proof. Legislation Cited: Industrial Relations Act 1996 Crown Employees (Public Service Conditions of Employment) Award 2009; Public Sector Employment and Management Act 2002; Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999 Cases Cited: Flanagan v Commissioner of Police [2010] NSWIRComm 7; 192 IR 88 Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333 Martin Evans v NSW Police [2005] NSWIRComm 404 Stuart Boyd Formston v New South Wales Police [2006] NSWIRComm 88 Category: Principal judgment Parties: Applicant: PSA Respondent: Director General, Department of Premier and Cabinet, Department of Attorney General and Justice (Corrective Services NSW) Representation: Mr A Hatcher SC (for the Applicant) Mr J Murphy (for the Respondent) Mr M Jaloussis, Solicitor, W G McNally Jones Staff Ms C Thomas, (Legal Officer, Professional Standards Branch, Department of Attorney General and Justice (Corrective Services Branch)) File Number(s): IRC 570 of 2012 DECISION 1Mr Donald Harry Bethel (the Applicant) commenced employment with Corrective Services NSW, Director General, Department of Premier and Cabinet, Department of Attorney General and Justice (CSNSW) in September 1990 pursuant to the provisions of the Crown Employees (Public Service Conditions of Employment) Award 2009. At the time of his dismissal on 3 May 2012 the Applicant was employed as a Senior Correctional Officer at Penrith Court Cells. BACKGROUND 2On 4 December 2010, reports were forwarded to CSNSW Professional Standards Committee regarding a "use of force" incident involving the Applicant. The incident was recorded on CCTV footage and on a hand held camera and showed the Applicant seemingly "head-butting" an inmate who was seated. Subsequently the footage was forwarded to NSW Police who determined to charge the Applicant with common assault pursuant to the Crimes Act 1900. 3On 21 January 2011, the Applicant was suspended from duties with pay in accordance with Section 49 (1)(b) of the Public Sector Employment and Management Act 2002 (the "Public Sector Act"). 4On 3 August 2011, the criminal charge was heard at Downing Centre Local Court. The Applicant pleaded not guilty to the charge denying that he had not head-butted the inmate. The Magistrate found proven against Mr Bethel a charge of common assault contrary to section 61 of the Crimes Act 1900. His Honour, Magistrate Grogin, noted that the Applicant showed no remorse for his actions. Nevertheless, his honour did not proceed to conviction and conditionally discharged the Applicant pursuant to section 10 (1)(b) of the Crimes (Sentencing Procedure) Act 1999 upon the Applicant entering into a bond to be of good behaviour for a period of 12 months. 5On 4 August 2011, the Deputy Commissioner, Ian McLean, formally advised the Applicant that disciplinary action was being considered in relation to the conviction for common assault in accordance with section 48 of the Public Sector Act. and also advised him that the severest penalty under that provision was dismissal. The correspondence also advised of a number of other matters that would be taken into consideration when determining penalty. 6The Applicant sought an extension of time on providing submissions to the decision maker on the issue of disciplinary action pending the outcome of an appeal against the conviction imposed by the Magistrate. 7The appeal against the conviction was dismissed on 3 February 2012. However His Honour, Judge Knox SC, set aside the orders made by the Magistrate and dismissed the charge pursuant to section 10 (1)(a) of the Crimes (Sentencing Procedure) Act. 8The Deputy Commissioner wrote to the Applicant on 23 February 2012 providing him with an opportunity to make submissions in relation to the disciplinary action being considered. 9The Applicant ultimately provided written submissions to the Deputy Commissioner. In addition to those written submissions made on 12 March 2012, the Applicant made oral submissions to the Deputy Commissioner on 4 April 2012 during which he asserted his innocence of the charge. He also pointed to two instances where correctional officers had been convicted of criminal offences but were not dismissed - one involved a guilty plea by the correctional officer of an assault against an inmate and the other involved a guilty plea for shoplifting. In the latter instance, the Officer was successful in obtaining a promotion despite the fact that she did not disclose the conviction until it was obvious that it would be discovered during a COPS check regarding a promotion for which she had applied. 10The Applicant was notified, by letter from the Deputy Commissioner dated 3 May 2012, that he was to be dismissed from the Public Service on the basis that the charges proven against him came under the definition of "serious offences" as defined under Section 48 of the Act. 11The Applicant filed an application pursuant to section 84 of the Industrial Relations Act 1996 (the Act) alleging unfair dismissal. Conciliation proceedings before Ritchie C were unsuccessful on 12 and 19 June 2012. LEGISLATIVE FRAMEWORK 12The Public Sector Employment and Management Act 2002 relevantly provides: 41 Objects of Part The objects of this Part are as follows: (a) to maintain appropriate standards of conduct and work-related performance in the Public Service, (b) to protect and enhance the integrity and reputation of the Public Service, (b) to ensure that the public interest is protected. 48. Disciplinary action may be taken if officer is convicted of serious offence (1988 Act, s 76) (1) If an officer is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more, or is convicted elsewhere than in New South Wales of an offence that, if it were committed in New South Wales, would be an offence so punishable, the appropriate Department Head may: [emphasis added] (a) decide to take disciplinary action with respect to the officer; or (b) decide to take remedial action with respect to the officer. (2) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking. (3) A reference in subsection (1) to the conviction of an officer for an offence punishable by imprisonment for 12 months or more includes a reference to the officer having been found guilty by a court of such an offence but where no conviction is recorded. 49. Suspension of officers from duty pending decision in relation to misconduct or criminal charge (1) If: (a) an allegation that an officer has engaged in misconduct is being dealt with as a disciplinary matter in accordance with the procedural guidelines, or (b) an officer is charged with having committed an offence referred to in section 48, the appropriate Department Head may suspend the officer from duty until the allegation of misconduct or the criminal charge (or any action that the Department Head is considering taking under section 48) has been dealt with.... THE EVIDENCE Driving whilst Disqualified 13Mr Bethel acknowledged that he had been found guilty in 2004 of person never held licence, drive vehicle on road and driving whilst under the influence mid-range PCA. 14On 5 December 1995, the Governor, George K Clarke, assigned Mr Bethel to the Parramatta Transport Unit as an Escort Officer. His duties entailed escorting inmates around the State to various courts and, on occasions, required him to drive a Departmental vehicle. 15The Respondent did not become aware of the Applicant's convictions for driving under the influence (mid range PCA) and driving without a valid licence until it was advised by the Police on 4 August 2011 (seven years and 4 months after the convictions). 16Detective Snr Const Moore noted that the Applicant was unlicensed for a period of 11 years and could very well have been driving Correctional vehicles during that time. 17During cross-examination, Mr Bethel stated that the Respondent would have conducted a licence check when he was transferred to Transport. He pointed out that his wife, an SAS in the Department of Corrective Services advised him that she had consulted the legislation and found no requirement for him to inform his employer of the situation. Nevertheless, he contended that he had advised Mr Bennett, a staff officer, who had visited him in hospital. The Assault Incident The Applicant's Evidence 18Mr Donald Harry Bethel provided a statement in the proceedings in which he advised that he was appointed as a Correctional Officer (CO) in 1990, was promoted to First Class Correctional Officer after three years and finally promoted to Senior Correctional Officer (SCO) in about 2003 - a rank which he held until his dismissal on 3 May 2012. 19In reporting on his expertise and experiences, the Applicant provided details of the various Centres at which he had worked and his achievements at each of those Centres and the letters of commendation that he had received. 20Mr Bethel also reported that he had been the PSA delegate from about 1991 until 2009 during which he had been involved in a number of conflicts with senior management in the conduct of his union duties. He stated, nevertheless, that he had acted professionally at all times and no complaints, to his knowledge, had been lodged as a result of his conduct as a delegate. 21Mr Bethel said that, at approximately 10.50 am on 4 December 2010, while he was working in the cells at Penrith Court, he saw CO Jensen approach Assistant Superintendent (AS) Morgan and inform her that the inmate in cell 5 had taken his t-shirt off and was threatening to hang himself with it. Mr Bethel said AS Morgan instructed him and Officers English and Bennett to attend the cell location immediately. He said that he was aware that the said inmate had earlier that day used the "knock-up" button on two occasions to complain that he wanted his medication as he was on a methadone program. The inmate had been advised that, once the court sittings were finished, he would be escorted to the clinic where a nurse, employed by Justice Health, would dispense his medication. 22Mr Bethel said he attended the holding cells with AS Morgan. They remained outside the cell. At that stage, the area was being video recorded by the CCTV cameras which did not record audio. He said he gave clear instructions to the inmate, BS, of what he was required to do. Nevertheless, BS argued with AS Morgan, shouting, screaming obscenities and abusing her asking for his methadone and medication. Mr Bethel said he gave BS a direct order to remove himself to the back of the cell, kneel down and face the wall, place his hands on top of his head and cross his legs over. BS refused to comply with the order and made a statement that the first officer to enter his cell would get a smack "in the fucking mouth". For some unexplained reason that part of the incident had not been recorded with the hand held camera. 23As it became obvious that use of force may be necessary, one of the Officers was despatched, in accordance with standard procedure, to obtain a video camera to record the incident. Mr Bethel, as a result of the threat of assault made by BS, asked AS Morgan to arrange for someone to obtain a set of restraints (handcuffs) so that BS may be restrained if he attempted to carry out his threat and to guard against BS throwing punches. At that point in time the cell door was still closed and the inmate was alone in the cell. 24Mr Bethel said that once the restraints were on hand, he obtained permission from AS Morgan to enter the cell but before doing so, he told BS to "move to the back of the cell". BS refused to do so. Mr Bethel said he informed BS that if he refused to comply and move to the back of the cell voluntarily, then the Officer would use his shield to move him. At that point, the video camera was turned on by the Officer operating it. BS complied by moving to the back of the cell but refused to comply with the instruction to kneel down. BS has had reconstruction surgery on his left knee so any pressure on his knees hurts him. Mr Bethel said that once he had possession of the restraints, he obtained permission from AS Morgan to enter the cell. Several Officers, including Mr Bethel, then entered the cell. SCO Harper entered the cell carrying a Perspex shield to be used, if necessary, to push the inmate back into the wall of the cell. The other Officers began to remove all the contents of the cell in case the inmate used any of them to harm himself. Mr Bethel said he got behind BS and instructed him to kneel down. Once again he refused to comply. He recalled the following exchange with the inmate: Bethel: You'll kneel to the ground or I'll use force. BS: I can't. I have something wrong with my knee. Bethel: No problems. Bend your knees forward, place your hands up, high up on the cell wall. BS: There's no need to handcuff me. 25Mr Bethel explained that the purpose of the handcuffs was twofold - firstly, they were to restrict BS in his movements in order to prevent self-harm and, secondly, they were to prevent injury to himself as BS had threatened to punch an officer in the mouth if they entered his cell. 26Mr Bethel described the difficulty he experienced in applying the handcuffs to BS's wrists. He said BS ignored his instructions to stop moving, to "stop resisting". BS moved his hands sliding them down the wall of the cell until, eventually, he was virtually attempting to apply the handcuffs while BS was on the floor because he had lowered himself that far. BS kept pulling his hands away because he did not want to be handcuffed. 27Mr Bethel stated that, once he applied the handcuffs, he told BS to stand up but BS said he could not stand up and did not want to stand up. BS kept repeating that he wanted his medication and his methadone. Mr Bethel said that once he had BS in a prone position, he told him that he wanted him to go and sit over on the bench. As he refused to comply, he basically pulled BS to his feet and again instructed him to go and sit on the bench. For reasons unknown to Mr Bethel, BS moved forward causing the Applicant to take control of the restraints, turn BS around and push him back towards the bench. The idea was to have him positioned at the furthest point away from the door so the Officers could exit the cell. 28Once BS was seated on the bench, the Applicant commenced to have a conversation with him during which BS made several requests, including that he wanted the handcuffs removed because they were too tight around his wrists. The Applicant contended that BS moved the handcuffs up the wrists so that they were tight. Mr Bethel said he bent forward to have a look at the back of the cuffs to confirm that there was a gap between the wrists and the handcuffs in an effort to ensure that they were not too tight. He had advised BS at the time to "Stop carrying on like an idiot. If you calm down, the handcuffs will be removed". He said that, as he bent forward, BS made a movement causing the Applicant to pull his head back. 29Mr Bethel admitted that he did get close to BS when he bent forward to examine the handcuffs but contended that there was no contact all with BS at that time or, indeed, at any other time. He contended that no part of his body came into account with any part of BS' head nor did he head-butt him at any time. 30Mr Bethel stated that he exited the cell as soon as BS settled down. He contended that, at all times, he was aware of the presence of the CCTV camera being operative and the fact that a video camera was being operated by one of the officers to record everything. 31In accordance with the usual practice, AS Morgan asked him to check on BS after about 10 minutes to determine whether he had settled down enough to allow for the removal of his handcuffs. Mr Bethel said BS was sitting on the bench when he approached the cell. He opened the cell door, entered and removed the handcuffs. He said that, also in accordance with normal practice where force has been used, he instructed CO Jensen, the clinic officer on that shift, and a male officer to take BS up to the clinic for assessment by the Justice Health nurse. The Applicant said that BS had apologised to him for his behaviour. 32Mr Bethel annexed to his statement a copy of Incident Report he had prepared on the day. It indicated that there was no injury caused to BS. It stated, in relation to the question "Most serious incident that preceded the use of force?" the Applicant had entered the words "self harm". There was no mention of a threat to assault Officers. His responses were echoed in the report submitted by AS Morgan which was also annexed to his statement. 33Mr Bethel pointed out that he had not been advised by Justice Health that BS had complained to their nurse that he had been assaulted by Bethel during the incident. 34AS Paul Juhaz viewed the video recording of the incident and concluded that, in his opinion, the Applicant had head-butted BS and reported the matter to the Police who charged him with common assault on 21 January 2011. 35The Presiding Magistrate at the Downing Centre Local Court, on 3 August 2011, found the charge of common assault proven and placed the Applicant on a 12 month good behaviour bond pursuant to section 10 (1)(b) of the Crimes (Sentencing Procedure) Act 1999. 36Judge Knox SC dismissed the Applicant's conviction on appeal to the District Court on 3 February 2012. However, his Honour set aside the sentence and, instead, dismissed the proceedings pursuant to section 10 (1)(a) of the Crimes Act - in other words, no conviction was entered against the Applicant. 37The Applicant was suspended from duty as from 21 January 2011 and did not return to work prior to his dismissal on 3 May 2012. During that period he had received his base pay which he said he supplemented by drawing on his accrued annual leave and long service leave which he was allowed to do following a dispute notification lodged by his union with the Commission. 38The Applicant maintained from the outset that he did not assault BS as alleged or at all despite the findings of the Local and District Courts. 39The Applicant stated that, on 28 February 2012, he received correspondence dated 23 February 2012 from the Respondent providing him with an opportunity to make submissions on his own behalf prior to a final decision being made on the appropriate disciplinary action to be taken following the conclusion of the criminal proceedings and the appeal. He was advised that the Respondent intended to take into account, in addition to his submission, the conviction in relation to BS, the objectives of the Public Sector Employment and Management Act 2002 and the following matters: a. a previous finding of guilt in relation to an assault upon another officer on 5 January 1993 for which he received the equivalent of a s.10 on 27 January 1993; b. a letter of warning issued to him on 12 May 1993 from the Deputy Commissioner regarding that matter; c. several complaints received from staff and inmates in November 1995 resulting in his removal from Parramatta Correctional Centre; d. a letter of warning issued to him on 2 September 1999 by the Senior Assistant Commissioner Inmate and Custodial Services following regarding his inappropriate conduct over an incident during which he conducted an unauthorised search on an inmate; e. use of force against an inmate for which he received counselling on 14 April 2003; f. a guilty finding for driving without a licence on 2 April 2004; and g. a guilty finding in relation to driving under the influence (mid range PCA) on 2 April 2004. 40A response was made to Deputy Commissioner Ian McLean on his behalf by his Solicitors dated 12 March 2012. That response highlighted all the applicant's achievements which had distinguished him throughout his career with the Respondent. It was pointed out that, despite the findings of the Local Court and the District Court, Mr Bethel maintained his innocence. It was pointed out that the Deputy Commissioner was not bound to accept their findings and there was no authority in support of the proposition that he was bound to accept the findings made by those courts. Clause 13 of Appendix 9-3 of the Procedural Guidelines for Managing Conduct and Performance ('the Guidelines") supports that submission. It does not prevent the decision maker from arriving at a decision that an officer is guilty of misconduct despite a "not guilty" finding by the courts. It follows, therefore, that a decision-maker is not prevented from reviewing the facts relied on by the criminal courts to find a "guilty" decision, particularly where a number of reasons exist that would warrant reviewing the facts relied upon by a court before determining, on the civil onus. whether Mr Bethel had in fact head-butted BS. 41The Applicant attended an interview with the Deputy Commissioner in or about early April 2012 at which Stewart Little from the PSA was in attendance and at which the Applicant made an oral submission as to why he should not be dismissed. Nevertheless, he was dismissed from employment by letter from the Deputy Commissioner dated on or about 3 May 2012 without reasons for such decision being provided. 42Mr Bethel denied that he had been convicted of a number of offences in the past. He acknowledged that he had been charged with assault on a fellow employee who took exception to the fact that he was dating that employee's ex-wife. Nevertheless, that charge had been dismissed without any conviction being recorded against him on 5 January 1993. He contended that he was not aware of the letter of warning allegedly issued to him on 12 May 1993 in relation to that incident until he examined his personnel file for the purposes of the present proceedings. He denied that he had been suspended while that matter was proceeding before the Local Court. 43Mr Bethel argued that the action taken by the Respondent in dismissing him from employment was inconsistent with its treatment of other correctional officers in similar circumstances. The Applicant provided the Commission with 18 examples of instances in which correctional officers had been charged with assault on either an inmate, or Police, had pleaded guilty, had not been suspended pending the hearing of their matter or had not been dismissed upon being convicted. The examples included instances where, he contended, correctional officers had engaged in misconduct but not charged by the police and had not been dismissed. 44In conclusion, Mr Bethel pointed out that he was aged 53 years and worked for the last 22 years as a Correctional Officer during which time he has been provoked and assaulted by inmates in many instances during the execution of his duties. He pointed out that he has never been charged with using excessive force in the restraint of inmates. He added that, given his age, he would find it extremely difficult to obtain alternative employment at the same remuneration level given his lack of skills or qualifications. Finally, despite the stressful conditions under which he performed his duties, the Applicant said he had enjoyed his job and always attempted to perform his duties to the best of his ability and in accordance with the Respondent's policies and procedures. 45The Applicant is seeking reinstatement of his previous position as Senior Correctional Officer. The Respondent's Evidence 46Ms Cathy Thomas, a Solicitor employed by the Respondent, provided a statement in the proceedings in which she stated as follows: The Deputy Commissioner had taken on board the comments made by the presiding Magistrate in relation to the charge of assault by the Applicant on a fellow correctional officer and also his recent transfer from Goulburn to Parramatta Correctional Centre and had decided, as a consequence, to withdraw the charge of misconduct and to issue him, instead, with a letter of warning dated 12 May 1993 in which Mr Bethel was reminded that inappropriate behaviour, both on and off duty has the potential to bring disrepute upon him and also on the Department. The Regional Commander, Dave Farrell, removed Mr Bethel from Parramatta Correctional Centre while a number of complaints that had been made against him by fellow officers were being investigated. On 5 December 1995, the Governor, George K Clarke, assigned Mr Bethel to the Parramatta Transport Unit until further notice. He stipulated that Mr Bethel was not to enter the Parramatta Correctional Centre without the approval of either the Governor or his Deputy. Mr Farrell wrote to the Assistant Commissioner Operations, Mr R Woodham, on 6 December 1995, expressing grave concern for the Applicant's safety and the safety of other staff and the good order and discipline of the Centre if Mr Bethel was allowed to return to normal duties at Parramatta Correctional Centre. The Union concurred with those sentiments. Its members passed a motion on 10 January 1996 agreeing that the Applicant's access to the Centre be limited to the gate and reception room only for the purpose of transporting inmates. The motion stipulated that should a further situation arise, then the Applicant should be totally restricted from accessing the Centre until the finalisation of all the matters. One of the matters involved two counts of alleged assault by the Applicant on an inmate on 21 November 1995. He was acquitted on both charges at Blacktown Local Court on 28 May 1998. Mr Bethel was issued with a letter of warning, dated 2 September 1999, in relation to the unauthorised search of an inmate and his cell after lock-in. It was pointed out that he had breached the Standard Operating Procedures in relation to such search and doubt was expressed as to his real motives for conducting the search in view of the omissions outlined in that letter. The Professional Conduct Management Committee (PCMC), on 14 April 2003, recommended that Mr Bethel be counselled in relation to his failure to video record a use of force incident. Governor Kelly counselled the Applicant on 27 June 2003. The Respondent did not become aware of the Applicant's convictions for driving under the influence (mid range PCA) and driving without a valid licence until it was advised by the Police on 4 August 2011 (seven years and 4 months after the convictions). Deputy Governor Brian Cullen, on 7 December 2010, referred the allegations of excessive use of force and assault upon SB to the PCMC attaching all the relevant documentation, including the incident reports. Mr Paul Juhasz, SAS Metro Courts, on 7 December 2010, recommended that the incident be referred for further examination on the basis of the issues before him - namely, Blatant excessive use of force applied by Mr Bethel; Assault by Mr Bethel on Offender BS: Failure of witness reporting in line with Policy; and Unprofessional conduct by Camera Operator Ms Jensen. Mr Brian Cullen, Deputy Governor, on 7 December 2010, referred the incident to the PCMC for formal investigation. The PCMC referred the matter to the Corrective Services Investigation Unit (CSIU) of the NSW Police for review. The Applicant was charged with assault by the NSW Police on 21 January 2011 as a result of which he was immediately suspended from duty with pay by Deputy Commissioner, Ian McLean, in accordance with section 49 (1)(b) of the PSEM Act 2002. The charge was found proven and the Applicant was sentenced to a Section 10 (1)(b) bond for a period of 12 months from 3 August 2011 resulting in the Deputy Commissioner writing to him the following day seeking, within 14 days, a submission and any additional information the Applicant wished him to consider before making a final decision in relation to which disciplinary measure to apply from a list of eight possible actions under section 42 (1) of the PSEM Act. On 15 September 2011, Detective Inspector Mick O'Keefe forwarded an investigation report by Det. Snr Const. McMaugh, dated 8 August 2011, to Commissioner Ron Woodham. The author of the Report commented: It must be noted that whilst CO BETHEL was only charged in relation to the 'head butt' component of the incident the entire interaction between himself and the inmate was excessive with CO BETHEL seemingly intent on causing pain to the inmate. It is recommended that any reader of this report review the attached footage and watch the incident in its entirety. Solicitors for the Applicant advised that submissions would not be made on behalf of the Applicant as an appeal had been lodged against the decision of the Magistrate in the District court. The appeal was listed for mention on 27 October 2011. The appeal was dismissed on 3 February 2012 and the orders were varied from a Section 10 (1)(b) to a Section 10 (1)(a). Deputy Commissioner Ian McLean wrote to the Applicant on 23 February 2012 providing him with 14 days in which to make a submission and provide additional information on matters, set out in the correspondence, which he wished to take into account in determining the appropriate disciplinary action to take. The Applicant provided written submissions via his Solicitors on 12 March 2012. In addition to that, the Applicant made oral representations to the Deputy Commissioner in a recorded interview held on 4 April 2012. A copy of the transcript was tendered in the proceedings Deputy Commissioner McLean, in a letter dated 3 May, 2012, advised the Applicant that he had considered the submissions made by and on his behalf and determined that the appropriate disciplinary action was dismissal from the Service, effective immediately. ` SUBMISSIONS 47It was pointed out by Mr Hatcher, on behalf of the Applicant, that the Applicant was a very long serving officer in Corrective Services having commenced employment in 1990 as a Correctional Officer and moved up the rank of First Class Correctional Officer in 1993 and then Senior Correctional Officer in 2003. 48It was further pointed out that the decision maker was not called by the Respondent to give evidence and therefore the Commission does not have the benefit of any explanation as to the precise reasons for the termination. The Respondent had not provided reasons, or given any explanation as to what aspects of the employment history was taken into account, the weight given to the fact that no conviction has been entered against the Applicant or explained the decision maker's thought processes that led to the dismissal in the letter of 3 May 2012. The reasons for the dismissal need to be inferred from the letters of Deputy Commissioner McLean dated 23 February 2012 and 4 August 2011. 49Mr Hatcher argued that the advice to Mr McLean was not quite correct. From the materials before the Commission, it would appear that Mr McLean had been operating under the mistaken belief that Mr Bethel had been criminally convicted. He had been advised, inaccurately, that Mr Bethel's appeal had been dismissed. The appeal had not been dismissed. The Applicant was successful in part in that, while the finding of guilt was maintained, the matter was dismissed without conviction under s 10 (1)(a) meaning that there was no conviction and no penalty - in other words, the penalty outcome was at the lowest possible range achievable in the criminal justice system. 50 Mr Hatcher stated that if the Respondent urged the Commission to place significant weight upon the fact that the criminal courts have made findings about the matter, then the Respondent has to accept all of the matters that are identified in the District Court judgment - including the issue of length of service; the consequences for his future employment and career prospects bearing in mind the age of the Applicant; non-compliance and provocation from an agitated and disturbed inmate, including threats by that inmate against Correctional Officers; heightened tension associated with abuse and obnoxious conduct by other inmates; the "unpremeditated" short, sharp and unrepeated action of the Applicant and the fact that no weapons were involved. 51Mr Hatcher further pointed out that the Respondent had not called any witness who had any direct knowledge of any matter in contest. The documents attached to Ms Thomas' statement were entered into evidence on the proviso that they were not evidence of the truth of any of those matters. In the absence of a primary record of the event description from the COPS system, then there was no evidence to support a contention that Mr Bethel was unlicensed when driving correctional vehicles. There is no evidence before the Commission to contradict the oral evidence of Mr Bethel, given in cross-examination, that he did have a licence and had been the subject of a licence check when he was transferred to the Parramatta Transport Unit. 52In relation to the head-butt, Mr Hatcher pointed out that the Respondent had not called BS or the other Officers, eyewitnesses to the event, to give evidence. The only live witness evidence in relation to the head-butt was the Applicant and the two videos of the proceedings. The Applicant has consistently denied the head-butt allegation. None of the witness statements from the Officers who attended the incident, which are attached to Ms Thomas' affidavit, make any reference to a head-butt. 53Mr Hatcher referred to the first statement obtained from BS. Both the Local Court and the District Court confirmed that the description provided by BS of the incident bore no resemblance to what was depicted on the video footages. The second statement of BS, obtained five months after the incident and three months after the first statement, recalled a head-butt upon being prompted by a leading question from Det. Snr Constable McMaugh. It was pointed out that the second statement, and the oral evidence given by BS in the Local Court, were equally problematic and lacked credibility. He was not called to give evidence and therefore the contradictions between the first and second statements could not be tested. Mr Hatcher outlined in detail the contradictions between both statements of BS - matters already identified in the District Court judgment. 54Mr Hatcher acknowledged that while, superficially, it may appear from the video footage that a head-butt occurred, the Commission cannot form a positive conclusion from the video footage alone, in the absence of actual live witness evidence, whether there had been any head contact between the Applicant and that inmate. 55It was pointed out that the Respondent bore the onus of proof with respect to serious misconduct. The Respondent had not discharged that onus owing to the lack of an evidentiary case. It was concluded that the Commission cannot independently find on the evidence before it that the head butt occurred. 56Mr Hatcher conceded that the Commission is entitled to adopt the approach, expected to be espoused by the Respondent, that full faith and credit and significant weight ought to be given to the Local Court and District Court decisions. Such a submission would have considerable substance in view of the fact that those courts had the benefit, unlike the Commission, of all the evidence from all the witnesses. It was pointed out that, even if the Commission were to adopt that approach, the outcome cannot be any worse for the Applicant bearing in mind the findings of the District Court judgment which led to the matter being dismissed without conviction and without any penalty. In particular, the Respondent was stuck with the finding by his honour that: The act constituting the assault was short, sharp and unrepeated. It does not appear to have been premeditated. No other officers took part in the assault. No weapons or devices were used. Mr Bethel was clearly trying to ensure that BS remained compliant and stable in a situation where he had been both abusive, violent and confrontational. 57His honour had noted the environment in which Correctional Officers are required to work - in particular, the impact of the situations brought on by the inmates themselves and the demanding and draining procedures brought on by the responsibility to ensure that inmates are not unruly and are managed properly when taken into the courts. 58The Commission was taken to that part of the judgment of his honour, Justice Knox SC, wherein he considered the penalty to be imposed, if any, on the Applicant:. His Honour appeared to operate on the belief that if he did not record a conviction it might not lead to the Applicant's dismissal. Mr Hatcher pointed out that if the Respondent wished to rely on that judgment then it has to also accept the obiter observation of his honour "which is critical to the characterisation of the seriousness of what was found to have occurred". 59Mr Hatcher noted that the Crown did not wish to be heard in relation to penalty. 60The Applicant relied on observations made by a Full Bench of the Industrial Relations Commission of New South Wales in an appeal in Flanagan v Commissioner of Police 192 IR 88 involving a police officer who was convicted of two counts of common assault for an off-duty incident but the charges were ultimately dismissed pursuant to s. 10 (1)(a) of the Crimes (Sentencing Procedure) Act 1999 on appeal to the District Court. Mr Hatcher pointed out that the fact that it was an off-duty incident was of little consequence in view of the fact that police officers have responsibilities in terms of law enforcement even when they are off duty. Nevertheless, Flanagan's dismissal from employment had also involved an issue regarding unauthorised access to the COPS computer system. The Full Bench observed: .... Kavanagh J appears to have found against the appellant on two bases: that he committed two assaults thereby bringing "public disgrace upon the Police Force with two criminal acts" and engaged in a pattern of unauthorised access to the confidential COP System for his own personal reasons.... In relation to the two assaults, there is no doubt Mr Flanagan's conduct was treated in the District Court as being at the lowest end of the range of seriousness. Kavanagh J was aware of the outcome in the District Court, but her Honour did not give any explicit indication of what she regarded to be the level of culpability that the assaults manifested. Implicitly, her Honour seems to have regarded the level of culpability as high, referring to the assaults as two criminal acts that brought public disgrace on the Police Force..... We have found that Kavanagh J erred in five significant respects, namely: (i) by failing to find Mr Flanagan was provoked and, thereby, underrating the significance of that issue in relation to mitigation and whether the removal was harsh or unreasonable;... It was submitted that, applying the reasoning of the Full Bench in Flanagan to the existing circumstances, it would be necessary for the Commission to give very serious weight to the following: * the way in which the matter was treated by the criminal justice system. It was pointed out that if full faith and credit is going to be given to the District Court decision then this Commission cannot make an independent or new assessment of culpability or give it a different characterisation nor can the Respondent expect the Commission to do that in view of the fact that the matter was not tried independently by evidence in this Commission; and * the provocation by the inmate was an important ameliorating factor and its significance should not be underrated when considering mitigation, harshness or unreasonableness. 61Mr Hatcher asked the Commission to bear in the mind the following in arriving at its determination: (1)Each case needs to be determined on its own set of individual facts. Firstly, the Respondent does not have a policy that the mere commission of a criminal act is a basis for dismissal without more; secondly, the Respondent does not have a policy that even a finding of guilt with respect to assault on an inmate without more necessarily results in dismissal. The Commission ought to find the dismissal unfair in view of the penalty being at the bottom end of the range of seriousness and there was an element of provocation; (2)There are a number of factors which would lead to a finding of harshness at the very least: (a)the Applicant's record of service over 22 years, including his movement up two steps to the position of Senior Correctional Officer; and (b)the personal consequences of the loss of that 22 year career - unemployment, no prospect of a future career given he is in his early 50s and with no identifiable qualifications for available alternative work. 62Mr Hatcher indicated that the folder of material tendered in the proceedings would demonstrate to the Commission that other officers who have engaged in comparable, or worse, serious or criminal conduct, have not been dismissed and have, instead, been given relatively minor disciplinary penalties. It was pointed out that the material had not been objected to and Mr Bethel had not been cross-examined on the examples he had provided in his statement which means that the Commission is entitled to proceed on the basis of that evidence. Mr Hatcher took the Commission through each of those examples. 63The Applicant also relied on the judgment of Boland J, as he then was, in Burrows v Commissioner of Police; Giardini v Commissioner of Police [2001] NSWIRComm 333 in which the opinion was expressed to the effect that unequal treatment of officers engaged in similar misconduct can lead to a finding that a dismissal is unjust or unreasonable: 75 In my opinion, it would have been unjust for the Commissioner to remove the applicant solely on the basis of the pornographic images sent and received by the applicant. Too many other officers, including more senior officers, had been involve din the same conduct yet they were not removed from the Service. Indeed, it could be said that in respect of some of the other officers, their misconduct in sending pornographic images was even grosser than that of the applicant. It was submitted for the Commissioner that the fact that other officers may have been involved in conduct similar to that of Mr Burrows does not mean that the Commissioner should "stay his hand" and not remove the applicant. I do not agree. If the Commissioner on the one hand removes the applicant for particular misconduct and on the other hand does not remove others guilty of the same misconduct then, in my opinion, the Commissioner has acted unreasonably or unjustly. 76 In order to justify the removal of the applicant it would have to be demonstrated that the applicant's conduct was such as to exhibit a greater degree of culpability than other officers. This brings me to the question of the text memo. 64In conclusion, Mr Hatcher stated that the dismissal of Mr Bethel was not only harsh, it was also unjust and unreasonable by reason of unexplained unequal treatment and, on that basis, an order for re-instatement, an order for continuity of service and an order for back pay were being sought by the Applicant although it was acknowledged that the Commission often modifies the issue of back pay to impose a lesser penalty upon the subject employee. 65Mr Murphy, on behalf of the Respondent, argued that there was no need to call Mr McLean to give evidence in the proceedings as the Applicant was clearly aware, from the correspondence forwarded to him by Mr McLean, of the matters that were considered up to that point in time, and the matters to be considered in arriving at a final decision on appropriate action. 66Mr Murphy insisted that Mr Bethel's appeal to the District Court was dismissed because the finding of guilt was upheld. 67Mr Murphy pointed out that it was for the Commission, as currently constituted, to determine, based on the evidence before it, whether dismissal was warranted bearing in mind it has the benefit of being a direct eye witness to what has occurred as a result of viewing the videos. 68Mr Murphy objected to the attempts, on behalf of the Applicant, to invite the Commission re-try the criminal mater and come to a different conclusion than that arrived at in the criminal jurisdictions. It was pointed out that the Applicant had been ably represented by Counsel in both the Local Court and the District Court proceedings during which all the difficulties identified by Mr Hatcher were fully canvassed. Nevertheless, the Magistrate, whose task it is to determine criminality beyond reasonable doubt, having viewed the video footage, came to the conclusion that the Applicant was guilty of assault on the inmate in that he head-butted that inmate. That finding was upheld on appeal to the District Court. On both occasions, the finding was made in the face of Mr Bethel's continued denial. Mr Murphy submitted that it "would be an entirely inappropriate and improper conclusion for a member of this Commission" to go behind that finding which is the province of the criminal justice system and find that the head-butt did not occur. For that reason, it would not have been appropriate for the Respondent to call the inmate to have his evidence re-tested when a finding of guilt has been upheld on appeal. 69It was submitted that the role of this Commission is to merely determine whether or not the dismissal was justified in this matter. 70Mr Murphy argued that the Applicant cannot have it both ways. The Commission ought to reject the argument on behalf of the Applicant that, on the one hand, the courts of competent jurisdiction got it all wrong in that there was no head-butt and seek to have this Commission reach such a finding yet, on the other hand, submit that if he did, then there was provocation. 71The Commission was urged to take into account in its consideration of this matter the very significant factor that the Applicant has continued to deny the head-butt "in the face of clear, positive, beyond reasonable doubt findings" that it occurred. It was suggested that the Applicant's evidence was dishonest in the face of those clear findings. 72Mr Murphy noted that, despite his obiter remarks, his honour, Justice Knox SC expressly conceded that the fairness or otherwise of the termination was the province of this Commission and not the District Court which had before it only matters relating to the charge of assault. On that basis, it was submitted that those remarks carry very little, if any, weight. 73One of the grounds for the appeal in Flanagan was the assertion that Kavanagh J rejected the evidence of the Appellant that he had become involved in the assault because of extreme provocation by way of such threats of violence. Mr Murphy pointed out that the Applicant in these proceedings does not rely on provocation or threats of violence to justify his actions. That, and other authorities relied on by the Applicant, it was submitted, provide no assistance to the Commission in determining the fairness or otherwise of the dismissal of Mr Bethel. 74Mr Murphy pointed out that the precedents relied on by the Applicant in support of its comparability of treatment argument can be distinguished from the present circumstances and that was the reason why the Respondent allowed that evidence to be admitted without objection. He proceeded to point out how they differed. In the main, the employees had admitted/reported their actions immediately, had acknowledged the gravity of their actions and had expressed regret. In the case of BS, he was sitting down, handcuffed, entirely restrained and not behaving in any way that could be described as "escalating to the point of becoming out of control". It was contended that evidence of penalties meted out to other employees was of such little weight that it cannot assist the Commission in its deliberations. 75The Respondent relied on the judgment of his honour, the President, Boland J, in Martin Evans v NSW Police [2005] NSWIRComm 404 in which a similar contention of dissimilar treatment was relied on by the Applicant: 46. Mr Docking also relied on the contention that there was such a marked inconsistency in the treatment of the applicant compared to that of other officers who engaged in the same conduct as the applicant that his removal was manifestly unjust... 47 Mr Docking pointed to the evidence of a number of police officers that had committed assault. Some had been removed ... and others had been given a "Commissioner's Warning Notice".... 48. All that can reasonably be concluded from these examples is that not all police officers that have committed assault have been removed from the Police. That is, there has not been any hard and fast rule that if an officer commits assault he or she will automatically be removed. Rather, it would appear the relevant Police Commissioner at the time has been prepared to consider the individual circumstances of the case and to exercise his discretion not to remove an officer if satisfied there were, for want of a better term, extenuating circumstances. This is as it should be. 76A similar proposition regarding comparability of treatment was put to her honour, Staunton J, in Stuart Boyd Formston v New South Wales Police [2006] NSWIRComm 88: 100 The fifth ground relied upon and, in some respects, also encapsulated within the sixth ground relied upon, is the submission emphasised by counsel for Mr Formston that goes to what he submits was the differential treatment that is accorded to police officers who come to the Commissioner's attention in what might be considered similar fact type circumstances. That is, whilst off-duty and intoxicated, police officers become involved in assault type incidents with members of the public... 101 In interlocutory proceedings relating to this matter, there was disputation between the applicant and the respondent surrounding a Summons to Produce served on the Commissioner. That Summons sought the production of a wide variety of documentary material over a significant time period ... The forensic purpose of seeking such material, it was said, was to highlight the inconsistent and differential treatment meted out to diverse police officers ... 102 Ultimately I ruled against the majority of the Summons for Production on the grounds of both irrelevancy to the task before the Commission in undertaking the review process as well as that of oppression given the broad and wide-ranging nature of the material being sought to be produced ... 103 This similar fact type approach coupled with an outcomes analysis was pressed before me in an earlier decision concerning an assault type complaint.... 104 Having regard to the similar type submission that has now been placed before me in these proceedings, I concur with the view expressed by Boland J in Evans .. as to the conclusion to be drawn from such a comparative analysis. I also reaffirm the view expressed by me in Dangerfield that such comparative outcomes analysis are not, in the final analysis, of any assistance to the role of the Commission in undertaking the review process that it does pursuant to s 181F of the Act. It is very much a matter of considering each case in the light of its own particular facts and circumstances having regard to the decision taken by the Commissioner to remove the officer from the NSW Police. That is as it should be ... 77It is apparent from both authorities cited by the Respondent that there is no hard and fast rule, every case has to be decided on its own set of facts, and that is how it should be and that is the case at Corrective Services, Mr Murphy submitted. It was contended that the Commission would not be assisted by reliance upon outcomes in other cases where the facts are completely different. 78The Commission was urged to make a determination that the actions of the applicant with respect to BS, involving an unprovoked act of aggression on a handcuffed inmate, was an act of brutality and warranted the decision to dismiss. 79Mr Hatcher stated in response that the characterisation of the Applicant's actions was not supported by either the outcome in the criminal justice system or evidence called by the Respondent or put to Mr Bethel in cross-examination. 80Mr Hatcher argued that the Applicant was not seeking that the Commission go behind the District Court judgments. Rather, the Applicant was relying on it and seeking that the Commission accept it and, if it does so, it will also have regard to the observations made by his honour in relation to mitigating circumstances and therefore find that the dismissal was unfair. 81In relation to the failure by the Respondent to call Mr McLean to give evidence, it was pointed out that the Commission would not be in a position to know whether Mr McLean took into account, or gave weight to the issue of remorse which was a critical distinguishing factor in the Respondent's submissions, or whether Mr McLean watched the video, or accepted or rejected the Applicant's submissions. Mr Hatcher pointed out that fairness is measured against the reasons advanced for the dismissal and, in the absence of evidence from Mr McLean, the Respondent has difficulty in demonstrating that the dismissal was a fair one. 82Mr Hatcher submitted that the Respondent was not entitled to make a submission adverse to the Applicant's credit without putting it to him directly in cross-examination that he was dishonest or lying about the head-butt. 83Mr Hatcher pointed out that the parties were in serious agreement about the issue of comparability of treatment in that there is no hard or fast rule in Corrective Services that a Correctional Officer who commits an assault is to be dismissed. In relation to Mr Bethel, the Commission has not been advised why Mr McLean regarded his actions as more serious than actions of other Correctional Officers. CONSIDERATION 84I accept the submission on behalf of the Respondent that the appeal by the Applicant to the District Court was not upheld. His honour, Justice Knox SC, unequivocally stated that "I uphold the findings of the Local Court in relation to the actions of the appellant". 85I accept the submission on behalf of the Respondent that a finding of guilt has already been made in circumstances where the test is "beyond reasonable doubt" and that finding was upheld on appeal to the District Court. It is not necessary, therefore, for this Commission to then proceed to determine whether the head-butt occurred "on the balance of probabilities". For the record, however, having viewed the video footage, I concur with the findings of the Local Court and District Court. 86Having made that finding, his honour went on to consider mitigating factors. His honour acknowledged the uncontested submissions made in the Court below, and again before him, regarding the financial effect of that decision on Mr Bethel and also on his future career. His honour decided to proceed on that basis to consider those circumstances. His honour concluded that it was appropriate to set aside the penalty imposed by the Local Court and impose a lesser penalty which would result in no conviction being entered. 87I accept that the Commission's role in these proceedings is to determine whether the penalty of dismissal imposed as a result of that guilt finding, in the circumstances, was warranted or whether it was harsh, unjust or unreasonable. 88The Commission has noted the objects of the PSEM Act which include ensuring that the public interest is maintained. 89It is noted that section 48 (1) of that Act does not mandate disciplinary action. It provides the appropriate Department Head with the option of taking either disciplinary or remedial action where an officer is convicted of an offence which is punishable by imprisonment for 12 months or more. 90The Deputy Commissioner obviously did not think remedial action was appropriate. As is required by section 48 (2) of that Act, Mr Bethel was given an opportunity to make a submission in relation to the disciplinary action that the Department Head was considering taking. On 4 August 2011, Deputy Commissioner Ian McLean wrote to the Applicant and advised him of the eight possible disciplinary options available to him pursuant to section 42(1) of that Act: Caution Reprimand Fine Reduction in Salary Demotion to lower graded position To be allowed to resign Direction to resign Dismissal The requirement for submissions was deferred until the outcome of the appeal to the District Court was known. The Deputy Commissioner wrote to the Applicant on 23 February 2012 seeking those submissions. Written submissions were made by the Applicant's solicitors on his behalf on 12 March 2012 and the Applicant had an audience with the Deputy Commissioner during which he put oral submissions on 4 April 2012. It is noted that the Applicant was not time limited in relation to those oral submissions which were taped and transcribed and provided to the Commission. The Deputy Commissioner informed the Applicant that he was dismissed on the basis that the charges proven against him came under the definition of "serious offences" as defined under Section 48 of the Act. 91The incident involving the loss of the driver's licence is unclear. The dates would indicate that Mr Bethel was unlicensed while he was with the Parramatta Transport Unit and could well have been driving Correctional vehicles during that time. However, there is no information before the Commission that would confirm that Mr Bethel did any driving while unlicensed and no evidence to indicate what action the Respondent took once it was brought to its attention, a little bit over seven years after the convictions. I am critical of the fact that Mr Bethel did not formally advise the Respondent of this very important fact and do not accept that, bearing in mind the nature of his duties, he was not required to report it. It is not clear what position Mr Bennett held as the Applicant merely described him as a "staff officer". However, that incident does not feature in my ultimate decision on the dismissal penalty. 92I have had the advantage of reading the transcript of the proceedings before the Local Court which was attached to the Applicant's statement. BS had given evidence in those proceedings during which he described what had happened. 93The statement prepared by BS for the Local Court was also attached to the Applicant's statement. BS advised that he had been diagnosed with schizophrenia, depression and another illness that affects his muscles and nerves. He suffers from fibro myalgia. BS said the Applicant was walking past with a lady. BS said words to the effect, "You'd have a crack at her, chief" meaning "she's a good looking bird". He said the Applicant and the lady continued on their way. He said the Applicant later entered the cell and head-butted him: BS had touched the middle to the top of his forehead indicating the location where the contact occurred with his head: BS: Well, it was just me and the officer, I spoke to the officer. The Officer then approached me, put his head to my head like that and then moved it back and went bang with a head butt. He said the head-butt "nearly knocked me out". He was not sure if the Applicant pushed him into the wall or if he fell into the wall from the head butt. He had a graze on his shoulder as a result and that lasted nearly six weeks. He had shown the graze to Detective Senior Constable Peter McMaugh. He had a lump on his forehead which lasted nearly two weeks. 94It was not disputed that BS suffers from a number of mental illnesses and has a documented history of self-harm attempts whilst in custody. 95Det. Snr Constable McMaugh had given evidence in the Local Court proceedings. He was the Officer attached to Corrective Services Investigations Unit who had investigated the allegation against Mr Bethel. Det. Snr Constable McMaugh had satisfied himself from the CCTV footage that a head-butt had been applied by the applicant on BS. BS had not mentioned a head-butt in the interview with McMaugh at Macquarie Fields Police Station on 12 January 2011. He confirmed that BS had consistently told him that he had real problems with his memory. Following a comment to him by Mr Jaloussis, Solicitor appearing on behalf of the Applicant in the criminal proceedings, he decided to further interview BS at his home on 5 April 2011. During the second interview he asked BS "Do you recall having pain to your head?" 96I consider that it would be unsafe to decide the matter purely on the inmate's recollection of events given the circumstances described above. 97The Incident Reports provided by the other Correctional Officers who attended to the inmate, dated 4 December 2010, stated: First Class Correctional Officer, Matthew English: .... At approximately 10.55 am on 04/12/2010 an inmate known to me as ..... (BS).... was being very abusive and aggressive and threatened to hang himself. SCO Don Bethel went to cell 5 were ... (BS) was placed and gave him a direct order to go to the back of the cell and kneel down. the inmate complied with little resistance (sic) as SCO Bethel hand cuffed the inmate while 1/C Jason Benney and I removed all items from the cell. [emphasis added] First Class Correctional Officer, Jason Benney: .... At Approximately 10.55 am on 04/12/10 an inmate known to me as .... (BS) ..... threatened to hang himself. SCO Don Bethel went to cell 5 were ... (BS) was placed and gave him a direct order to go to the back of the cell and kneel down. Once SCO Bethel had control of the inmate myself and First Class Correctional Officer Mathew English entered the cell and removed all items. All officers then exited the cell and it was secured. [emphasis added] Senior Correctional Officer Don Bethel: .... At Approximately 10.55 am an inmate now known to me as .... (BS)... made a threat to self harm ..... instructed by A./S MORGAN to attend cell and remove items, on attending the cell I gave the inmate an instruction to move to the back of the cell at first he refused saying he would smash the first officer who went in the cell upon entering the cell I gave the inmate another direct order to move to the back of the cell minimum force was used to place hand-cuffs on once this was done inmate became compliant, hand-cuffs were removed after 10 minutes inmate attended clinic nil injuries nil complaints. [emphasis added] 98It is noted that two other witnesses to the incident had failed to provide a statement as per Departmental Policy - casual Correctional Officer Ajay Taneja and SCO Harper. Nevertheless, in her statement to the Police, Ms Taneja relevantly stated: ...I remember during the morning the inmate was dealt with at court and a decision was made to place him in a cell by himself. Once he was in the cell that's when he made the threat to self harm unless he was placed with other prisoners. .... I remember the inmate said something like, "If you don't move me I'll kill myself."...After this Don turned to me and asked me to get the handcuffs. I went to the office and retrieved the cuffs. I took the cuffs down to Don who was still at the inmate's cell. Don then said to the inmate, "Move to the back of the cell, kneel down and face the wall." By this stage a number of other officers were there to assist and Anthea was operating the video camera. Initially, the inmate did not obey the instructions and Don repeated them a few times. After a period of time the inmate moved to the back of the cell and followed the instructions. I saw Don move into the cell with the hand cuffs. I saw Don attempt to hand cuff the inmate but the inmate resisted by moving his hands. I saw Don put his body weight on the inmate to stop him resisting and after a period of time was able to hand cuff him. I saw Don pick the inmate up by the hand cuffs and made him sit on the mattress. At this point in time I believe I may have moved out of the cell to deal with two female prisoners who had become disruptive. I believe Don had a conversation with the male inmate as I left the cell but I can not recall what was said. By the time I left the cell the inmates attitude had changed and he had calmed down. .... Around half an hour later I was aware the inmate had apologised to the officers for his behaviour. Don approached me and asked me to take him to the nurse. I went to the inmate and saw he was bleeding on his wrist, near the hand cuffs and on his knees.... [emphasis added] 99Mr Bethel was taken through the CCTV recording of the incident during cross-examination. The footage showed that he was attempting to place handcuffs on the inmate. He explained that it was because the inmate had refused to be compliant and had refused on two occasions to move to the back of the cell as directed. The Applicant conceded, nevertheless, that the footage showed that the inmate had complied and was at the rear of the cell before any officer entered the cell. The eye witness accounts provided by the other Correctional Officers and the video footage confirm that the inmate had complied with the direction given by the Applicant to move to the back of the cell and kneel. The CCTV footage shows a compliant inmate and it was the Applicant who moved in and grabbed his wrist in such a way as to cause the inmate to yell out and react. BS had complained of pain to the knee and, as it turned out, he has had reconstructive surgery on that knee. BS had also complained that the hand-cuffs were hurting his wrists and Ms Taneja's statement confirmed that there was bleeding on his wrist. It is interesting to note that the Applicant's statement had noted "nil injuries". I am more inclined to accept Ms Taneja's statement as she was the officer who had been assigned by the Applicant to take BS to see the nurse. 100Mr Murphy drew attention to the footage which showed Mr Bethel hold the inmate by the handcuffs. Although BS was not resisting, the Applicant lifted the cuffs and twisted them to inflict obvious pain on the inmate. Mr Hatcher objected to that issue being raised as it was not a matter that was ever raised against the Applicant with respect to the disciplinary process and the only matter dealt with in the criminal jurisdiction was the alleged head-butt. Mr Murphy disagreed on the basis that the matter had been dealt with in the Local Court and was pertinent to a determination as to whether the dismissal was harsh, unreasonable or unjust. I accept that the issue is pertinent to the current proceedings. The footage is in evidence before the Commission and the actions of the Applicant are quite evident including the obvious distress of the inmate. 101Mr Bethel agreed with Mr Murphy that while the inmate was sitting on the bench and he was bending over the top of him and talking to him, the inmate's head moved to the back and to the left but insisted that there was no contact from him. He maintained the following: ..... the inmate ... kept continuing to complain about the handcuffs were too tight. ... I went to view the handcuffs, as I went to lower my head to have a look at the gap in between the handcuffs and the inmate's wrists he went to raise, and it's obscured from the view because of the angle of the video, it just happened at the same time, I pulled my head back, I went to look down and I just pulled my head back so I couldn't be hit in the face by the handcuffs. 102On viewing the CCTV footage, it is abundantly clear that Mr Bethel's head was very close to that of the inmate as if talking into the ear of the inmate. I do not accept that Mr Bethel was examining the hand-cuffs for tightness. The inmate had his legs spread and his hand-cuffed hands were in his lap and could not be seen by the Applicant at that angle. If Mr Bethel was indeed concerned about BS raising his hand-cuffed hands and lashing out at him, he would have spoken to the inmate from a safe distance and allowed the hand-held camera to record the discussion. BS was sitting on the bed and not moving. After the head-butt the Applicant returned twice to speak to him - the first time he got into the same position as the head-butt position and the second time was from a short distance before finally existing the cell. 103The Applicant's approach towards hand-cuffing BS while compliant with directions could have been handled better. The Applicant's infliction of pain on the inmate by twisting the handcuffs was clearly evidence as was the head-butt. I accept that the Applicant cannot rely on provocation or threats of violence to justify the actions I have described above. 104It is noted that Mr Bethel received a letter of recognition dated 9 March 2006 from the Commander, Women's Facilities & Services Command, Department of Corrective Services, acknowledging his standard of professionalism and commitment which he displayed during the search operations conducted by Task Force Con-Targ and other specialised units at Silverwater Correctional Centre the previous month. 105Whilst serving in the high security section at Goulburn Correctional Centre, Mr Bethel, with the assistance of a Senior Correctional Officer, in 1991, pulled an Aboriginal inmate out of a burning cell. In 1993, whilst manning the armed post, he took action to prevent the escape of some 10-12 inmates who he caught scaling the fence. 106Whilst serving at Parramatta Correctional Centre in the period 1993-1997, the Applicant, acting on information received from an inmate, prevented an attempted escape by three inmates; he saved an inmate who had attempted to suicide using a bed sheet; and, in corroboration with other officers, introduced programs to occupy the time of the inmates thereby reducing the number of assaults in the young offenders section from 15 per week down to zero. In fact, Deputy Governor Poulton invited the Applicant to transfer with him to Parklea to introduce similar programs at that facility. 107The Applicant received in excess of 50 Letters of Recognition whilst serving at the Main Gate, MRRC and Silverwater Minimum in the period 1998-1999. He had uncovered contraband attempted to be brought into the facility by visitors on numerous occasions; he thwarted the efforts of a woman who attempted to enter the facility under the guise of the new Education Officer. She was the fiancée/partner of the man who was subsequently convicted of murdering John Newman. Finally, he had, whilst working in the Darcy Reception Wing, prevented numerous inmates from self-harming and had disarmed an inmate who was stabbing a fellow cell mate with an improvised gaol "shiv". 108The Applicant's accomplishments are commendable but hold no sway under the current circumstances. 109I have considered the issue of comparability of treatment and the cases cited can be distinguished from the present circumstances. 110The Applicant has consistently denied the obvious evidence. In the absence of any acknowledgement of the gravity of his actions, it would be very difficult to guarantee that such actions would not recur. In other words, if he cannot comprehend that his actions were wrong, then it would be unsafe for the Respondent to return him to the duties of Correctional Officer. 111In my opinion, the Respondent discharged the onus of proof with respect to serious misconduct on the part of the Applicant. 112The dismissal cannot be held to be harsh, unjust or unreasonable in the circumstances. DECISION 113Matter IRC 570 of 2012 is hereby dismissed. I Tabbaa AM COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2013