Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Gerald Byrne) and Corrective Services NSW [2014] NSWIRComm 1029

Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Gerald Byrne) and Corrective Services NSW [2014] NSWIRComm 1029 Hearing dates: 3 April 2014 Decision date: 05 December 2014 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM Decision: Claim dismissed Catchwords: Unfair Dismissal - Alleged assault by inmate on Correctional Officer by spitting on him - Inmate hepatitis C positive - Use of Force to stop further assault - Applicant punched inmate causing laceration above his eye - No hand held video camera used to record the incident - Inmate suffered seizure - Incident Report allegedly false and misleading - All allegations sustained by the evidence - Dismissal was not harsh, unjust or unreasonable -Claim dismissed. Legislation Cited: Industrial Relations Act 1996 Crimes (Administration of Sentences) Regulation 2008 Cases Cited: Lyle Young v Commissioner of Corrective Services (Appeal No 140 of 2004); Byrne v Australian Airlines Limited [1995] HCA 24; 185 CLR 410 Texts Cited: Corrective Services NSW Use of Force Policy and Procedures Category: Principal judgment Parties: Mr G Byrne (Appellant) Mr S Cosgrove - Solicitor, Professional Standards Branch (Respondent) Representation: Mr R Reitano (for the Applicant) File Number(s): IRC 990 of 2013

DECISION

Overview 1Mr Gerald Byrne (the Applicant) was employed by the Secretary of the Treasury on behalf of Department of Attorney General and Justice (Corrective Services NSW) (CSNSW) as a full-time 1st Class Correctional Officer from 29 April 1996 until his dismissal on 13 November 2013 pursuant to the terms and conditions of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009. 2At the time of his dismissal, the Applicant was 63 years of age and working at the Court Escort Security Unit at Silverwater. He intended to retire at age 65. 3On 8 January 2013 the Applicant was assigned the duty of driving the escort vehicle around the city doing pickups. He was accompanied by 1st Class Correctional Officer Kevin Critcher. They attended Central Court Cells for the purpose of transporting offenders to the Surry Hills Police station cell complex. Having attended to administrative requirements, the Applicant and Kevin Critcher proceeded to escort offenders one at a time from the cells to the Sally-Port area where the escort vehicle was located. They moved eight inmates into the escort vehicle without incident. At approximately 4.40 pm, they went to move the last inmate, D. They were accompanied by two Central Court Cells staff whilst moving that inmate. Whilst moving D through the airlock leading to the vehicle dock an incident occurred which was recorded on CCTV footage. 4General Manager, Craig Osland, reviewed the CCTV footage and the reports provided by the Applicant and the witnesses. Mr Osland, on 11 January 2013, recommended that the matter be referred for formal investigation having made a number of findings: The actions taken by the inmate and the Applicant were inconsistent with the submitted reports; Control measures implemented by the Applicant appeared excessive and inappropriate in the circumstances; A review of the CCTV footage indicated that there were a number of alternative options available to secure the inmate without necessity for the use of force; The CCTV footage indicated that the inmate was not taken to ground and indicated that there may have been additional force used other than that identified in the written reports; and The Reports and Witness Statements failed to inform that during the process of receiving medical attention from staff, the inmate experienced a fit of some description. 5The Professional Standards Committee (the PSC) reviewed the CCTV footage and noted the Applicant "knee inmate [D] in the stomach and strike him in the face area with a closed fist". D sustained a laceration above his left eye. Following medical treatment to the laceration, D suffered a seizure and required hospital treatment. 6On 19 April 2013, Assistant Commissioner, Security and Intelligence, Mark Wilson, approved instruments of investigation and the following issues, including a copy of the CCTV footage, were referred to the Corrective Services Investigation Unit (the CSIU) for formal investigation, as per the recommendation of the PSC: (1)The Applicant used unnecessary and excessive force by forcing inmate D to the ground whilst escorting him from his cell to the vehicle. These actions are in breach of Corrective Services NSW policy and procedure; (2)During this use of force incident, he struck inmate D by punching him in the face. As a result inmate D experienced injuries which required hospital treatment; (3)The Applicant intended and planned to cause injury to inmate D during the use of force incident in that instead of leaving the door to the vehicle bay open to allow the inmate to be led to the vehicle, it was purposefully closed in an attempt to obscure his actions; (4)The Applicant failed to comply with CSNSW policy and procedure in that he did not ensure that a video record of the use of force incident was taken despite the fact that the incident was not spontaneous in that four correctional officers, two gloved, attended the cell in order to facilitate the movement of the inmate; and (5)The Applicant failed to comply with CSNSW policy and procedure in that his report of the incident was not accurate. 7On 31 May 2013, the CSIU investigation report found the following allegations sustained: (a)That, on 8 January 2013, the Applicant breached sections 13.7 and 13.7.3 of the Respondent's Use of Force Policy and Procedures and ss 1-3 of Clause 121 of the Crimes (Administration of Sentences) Regulation 2008 when, at the Central Court Cells, he used unreasonable and inappropriate force upon inmate D by bringing him to the ground and then punching him in the face resulting in an injury that caused hospital treatment to the said inmate. (b)That he breached section 13.7.5 of the Respondent's Use of Force Policy by failing to ensure that a video camera was on hand in use to record the Use of Force incident upon inmate D. 8The Report found the following allegations not sustained: (c)That he contravened Sections 1 and 2(a) of Clause 260 of the Crimes (Administration of Sentences) Regulation 2008 by submitting a report in relation to the incident which was false and misleading; and (d)That he breached the Respondent's Policy and Procedures by failing to ensure that an Inmate Assault/Injury Questionnaire form was completed with Inmate D. 9At the time of the investigation, D was not a person in Corrective Services custody. Despite a number of attempts to interview and obtain a statement of complaint from D, he was unwilling to speak to investigators. In the absence of a signed statement and unwillingness to give evidence in court, it was decided that there was insufficient evidence to substantiate launching a criminal prosecution against the Applicant for assault. 10On 31 July 2013, the Appellant was provided with a copy of the Investigation Report and invited, by Assistant Commissioner Mark Wilson, to make submissions in respect to the findings. The Applicant was advised that Mr Wilson had formed the opinion that he had engaged in misconduct in relation to the use of unreasonable and inappropriate force, failure to record the incident using a video camera and the details recorded in the Officer's Report Form were false and misleading. 11On 16 September 2013, during the course of oral representations to Assistant Commissioner Wilson, the Applicant made full admissions to striking inmate D stating words to the effect "As I said I didn't mean to strike him in the head, it was just a reaction. I realise it was wrong but at the time these things happen unfortunately. I have no excuse for it, it was just, a spontaneous action". The Applicant contended that the inmate spat at him and the spittle hit him on the back of his head. 12Assistant Commissioner Wilson notified the Applicant on 13 November 2013 that dismissal from the Public Service was warranted in the circumstances, effective immediately, having considered all of the evidence and the representations made by the Applicant. 13It was denied that the Applicant kneed the inmate. It was conceded that the Applicant punched the inmate causing him to suffer a cut above his eye. The PSA contended, however, that the use of force was reasonable in the circumstances, was in accordance with Departmental Policy, and was undertaken with his safety and the safety of his fellow officers uppermost in the Applicant's mind. 14The PSA contended that there are alternative remedies to dismissal in incidents such as this as is evidenced by treatment of other Officers involved in similar incidents. It was contended that the disparate treatment of employees in circumstances of misconduct equality constitutes harshness, unjustness or unreasonableness. 15The Respondent asserted that the dismissal was neither harsh, unreasonable nor unjust. Rather, it was appropriate having regard to: * The serious nature of the misconduct; * The compelling evidence against the Appellant; * The protection of the public interest and integrity of the CSNSW and the Public Service as a whole; and * A previous written warning issued to the Applicant regarding a use of force incident.