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. The Issues 16There are three issues that arise for consideration by the Commission: (A) Was the use of force necessary or reasonable? (B) Did the Applicant fail to follow the Use of Force Policy with respect to the use of a hand held video camera to record the incident on 8 January 2013? and (C) Was the Use of Force Incident Report completed accurately? CCTV Footage 17The CCTV footage depicts inmate D being escorted through the hallway to the sally port area with the Applicant walking beside him and to his left. D's wrists were handcuffed and both his arms were stretched out in front of him. The Applicant's right arm was stretched out to his side and beneath the arms of the inmate. He had a hold of the inmate. They were walking side by side but in some of the still shots the inmate was slightly behind him. Officer Critcher was walking immediately behind them. Officer Critcher was taller than both the Applicant and the inmate. The other two officers were Central Court staff - Nicole Masters (casual Correctional Officer) and Gurinder Arora . They went through a metal gate - the first doorway to the sally port area. The parties were agreed that the length of the sally port from the entry door to the exit door approximated 3 metres. The escort vehicle was parked sideways in the vehicle bay with its grille door actually facing both those doors and inmates in the escort vehicle could see through the grille door into the sally port when that exit door was open. When they were about a metre from the exit security door, the Applicant moved forward and closed the security exit door which had the effect of blocking the view of the inmates already in the escort vehicle and prevented any further movement towards the escort vehicle. 18The incident, involving use of force, occurred in the sally port area. The Applicant then bent the inmate down towards the floor by pushing down on the inmate's head with his hand. He raised his knee towards the abdomen of the inmate. Shortly after, the Applicant raised his right clenched fist and struck the inmate in the forehead causing a laceration and bleeding to the left side of the inmate's forehead. The inmate was never taken to the ground. 19He was returned to the cell area for treatment. Officer Masters cleaned up the blood from the cut. The inmate had a seizure. Was the use of force necessary and reasonable? 20It was alleged that the Applicant, on 8 January 2013, at the Central Court Cells, used unreasonable 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. His actions were contended to be in breach of the CSNSW Use of Force Policy and Procedures, Sections 13.7, 13.7.3 and Clause 121 1 - 3 of the Crimes (Administration of Sentences) Regulation 2008. 21The Applicant completed an Incident/Witness Report on 8 January 2013 in which he reported that: ...I had cause to handcuffed inmate [D] ... and escorted him to my truck. Upon entering the airlock opposite the truck, the inmate spat on the back of my head. He then spat again but missed. I took him to ground to prevent him from doing it again. As I did so he attempt to spit again so I struck him with a closed right hand which connected with the inmates left eye. Upon realising that he was bleeding, I took him back to the cell area and sat him down... 22The Applicant stated that he took inmate D to the ground by placing a hand on his head and pushing him down. 23The Applicant had the opportunity to view the CCTV footage prior to participating in the interview on 24 May 2013 by the Investigations branch. He acknowledged during that interview that he had not taken the inmate to the ground. 24Following a viewing of the CCTV footage, the Applicant provided Mr Mark Farrell with a facsimile dated 29 May 2013 restating what he had already stated in his previous report but providing additional information/ clarification:: ...It has become apparent to me that after seeing the video some events, which were obvious to me, were not as clear on the video. As stated in my report the offender spat at me twice, the first struck me on the back of the head the next luckily missed me. I can see from the video that this happened just out of video view and is not obvious when viewing the footage. The other point that is obvious is that I closed the door before turning to restrain the offender. The reason behind this was in fact that the other offenders in the vehicle saw the spitting incident and became agitated. They began to shout words to the effect off "That dog spat on the chief, put the dog in here and we will sort him chief". I wanted to contain and isolate the situation taking the other offenders out of the situation by closing the door. Thus removing distraction and blocking them from being involved, ... The first allegation alleges that I used unreasonable and unnecessary force to restrain the offender and control the situation. I would state that the offender assaulted me first by spitting on me once and missed me with the second one. When I turned to restrain the offender he was about to spit at me again which is why I put his head down. He did continue to struggle and I used the force I believed was reasonable to control the situation. Once the offender became compliant no further force was used. I agree that I did strike the offender, however, it was not my intent to strike the offender in the head and the strike was only used to control the situation. As stated once controlled no further force was used. In relation to taking the offender to the ground this is not correct, the offender was bent over to stop him spitting at me again but he was not taken to the ground, which is evident from the video. 25In the statement he provided in the proceedings, the Applicant stated the following: (i)that the inmate was not known to him prior to the transfer on 8 January 2013; (ii)it was not conveyed to him, prior to the incident on 8 January 2013, that the inmate had, earlier in the day, being moved into a cell of his own because he had made a threat to CCO Masters that he would assault any officer who came into his cell because he wanted his Methadone and that he had actually thrown a glass of water at her; (iii)he had moved eight inmates into the prison van without any incident; (iv)Inmate D was the last to be moved. He had not resisted being handcuffed and transferred from the cell to the prison van. However, as they entered the sally port, the inmate spat at him making contact with him in full view of the other prisoners in the van. They had become unruly and were yelling out for the inmate to be placed in the van with them causing him to shut the door to contain the situation; (v)he turned his attention to restraining inmate D. As he was doing so, the inmate was clearing his throat as if to spit again and so he decided to put him to the ground to prevent any potential attack on them; (vi)while he was attempting to put him down, and while his head was bent down, the inmate was still making noises with his throat and so he decided to hit him in the abdomen to wind him and thereby stop him from spitting at him or anyone else. Instead his fist connected with his head causing a cut just above the left eye; (vii)he explained that his reaction to the spitting was spontaneous and that his motive in punching the inmate was not to punish him for spitting at him but to stop him from spitting at him again; (viii)he was not aware of the proper reporting procedures as this was the first report of this type that he had submitted. He reported the incident to the Sergeant in the reception area at the Surry Hills Police Station about an hour or two afterwards. He was not entirely sure whether he had taken the inmate to the ground and therefore erred on the side of caution and therefore stated in his report that he had. In his view, he had made a full admission of what he had done not having viewed the CCTV footage by that time. (It is noted that the Investigator made inquiries at Surry Hills Police and there was no record of that report on the police computer system.); (ix)he had regretted his action as soon as it occurred; (x)he was going through a stressful period at the time because of his wife's open heart surgery. The incident with the inmate added to that stress as he was aware of many incidents during which correctional officers were spat on by inmates who were carriers of contagious diseases and who used their spittle as a weapon against correctional officers; (xi)he lodged a workers' compensation claim which was accepted. The insurer paid for the medical tests he undertook to screen for HIV and Hepatitis A, B and C. He had to wait six months to receive the all clear in that respect and that had added to his anxiety. 26In proceedings before the Commission, the Applicant stated that he had decided to hit the inmate in the abdomen to wind him and stop him from spitting. He struck him with a closed right hand which connected instead with the inmate's head just above the left eye. 27He explained, during cross-examination, that the inmates in the bus were screaming out through the grille door that inmate D spat on an officer. He had been trained to contain and isolate situations and that was what he was trying to do. He had no excuse for his actions except to say that it was a spontaneous reaction on his part. He denied that he kneed the inmate. He explained that because his left hip was broken, he experiences "a foot drop on his left ankle", that is, since 1997, his right knee rises every time he turns quickly. 28Also during cross-examination, the Applicant conceded that the CCTV footage did not show the inmate spitting on him. He assumed that it was because of the break between the two cameras - the one that videoed them as they were in the corridor and the other in the sally port area. The Applicant estimated the distance when they were out of sight of both cameras was about 1 metre: ... The two cameras have a break in between them. ...As they're coming down there, there's the footage. It breaks, then we need to take two steps into the sally port and then the overhead camera kicks in there... ... January, very, very hot, humid sticky day. The back of my neck was very, very wet. I thought to myself - the spit happened but I thought to myself, did he spit on me because I didn't react straightaway, did he spit on me and I thought and then just as there a second spit came down here and then the inmates were going "He spat on the Chief". It's happened as we've gone through the sally port door.... 29Ms Nicole Masters, a casual Correctional Officer, provided an Incident/Witness report in which she described what she witnessed as follows: .... [Inmate D] was being escorted to the waiting escort truck by First Class Correctional Officer Byrne who had a hold of the offenders hand cuffs. Officer Byrne, officer Critcher and offender [D] entered the corridor to the sally port. At this stage I noticed officer Byrne move offender [D] towards the floor. Officer Byrne then escorted offender [D] back into the cells area to the bench seat. It was at this stage that I noticed offender [D] had a laceration above his left eye.... 30In his Incident/Witness Report, First Class Correctional Officer Gurinder Singh Arora reported that: I was following 1st Class Correctional Officers Critcher and Byrne as they escorted offender .... [D] to the waiting escort truck. As we entered the sally port corridor I heard officer Bryne say "You spat on me". I then witnessed officer Byrne place offender [D] on the ground. Offender [D] was then removed from the sally port corridor and placed on a bench seat in the cells area. I noticed that offender [D] had a cut above his left eye which was bleeding. 31In his Incident/Witness Report, 1st Class Correctional Officer Kevin Critcher reported that: I was walking behind First Class Officer Gerald Byrne, who was escorting the inmate ... [D] from the cell to the truck. When entering the airlock at Central Cells, I heard Officer Byrne say "You spat on me, Cunt!" Officer Byrne then spun him round and took him to the ground. Officer Byrne then said "Don't you spit on me again." Officer Byrne then punched the inmate. The inmate was then stood up and moved out of the airlock as there was a gash above his left eye and was bleeding.... 32The Applicant said he closed the sally port exit door because the inmate spat on him although that cannot be gleaned from the CCTV footage. 33None of the three witnesses were called to give evidence in the proceedings. According to their statements, none had witnessed the inmate spit, or attempt to spit, at the Applicant despite their close proximity to both of them. 34Mr Mark Wilson, Assistant Commissioner Security Intelligence, gave evidence in the proceedings. Since he commenced with Corrective Services in 1983, he has acted in various roles including General Manager of Goulburn Correctional Centre, has spent a considerable proportion of his time in the security and emergency response area. He has spent a considerable period of time in the training division and is considered an expert on use of force training, has assisted in the Ombudsman's investigation into use of force in Corrective Services and the tabling of a report relating to the culture in that establishment around the use of force. 35He did not resile from the fact that spitting by inmates on correctional officers posed an unacceptable risk of serious circumstances. Nevertheless, he was not satisfied that the behaviour of the inmate was consistent with the version of events given by the Applicant. He did not accept the Applicant's word that the inmate spat on him: ..... I found it to be inconsistent with what I saw on the video, the inmate was not behaving in that way, he was completely compliant, he was not agitated, he was not being non-compliant, he was walking towards the vehicle bay, cuffed and held by the officers. I didn't see him do anything.... I was satisfied that what I was looking at captured all the events which were the subject of the investigation finding that the force was excessive. 36Mr Wilson suggested that the Applicant made up the story about being spat on as a cover up for punching the inmate pointing out that they had stopped in the hallway for no apparent reason and then the Applicant had "intentionally" closed the door prior to his knee coming up towards the inmate before attempting to pull him down to the ground and applying punches. He pointed out that taking an inmate to the ground was at the extreme end of use of force and used for the protection of the correctional officer. A verbal threat or spitting would not result in such a response. The more appropriate response, consistent with policy and procedures and the legislation, given that the inmate was already handcuffed, would be to turn the inmate's face and mouth away from the direction of the officers. 37Mr Cosgrove pointed out that the CCTV footage demonstrated that there was no reaction at all to indicate that the Applicant had been assaulted by being spat on and, in fact, the Applicant commenced to use force without even confirming whether or not he had been actually spat at. I accept that submission. 38Officer Critcher was immediately behind both of them and is taller than both of them. There is no possible way he could have missed seeing an assault on the Applicant by the inmate given the head movement required by the inmate in order to strike the Applicant's head with his spit. 39The Applicant walked ahead of the inmate to shut the exit door despite his evidence that he heard inmate D preparing to spit once again at him. If his evidence is accepted, it means that he left himself completely exposed to being assaulted again. 40I cannot fathom how the inmates in the escort vehicle, at least four metres away (3 metres of sally port and one metre in the corridor), could have observed the assault on the Applicant if Officer Critcher did not see it. 41I do not accept that the inmate spat at the Applicant. The use of force, therefore, was unnecessary. Nevertheless, even if the Applicant was given the benefit of the doubt that it occurred given that two witnesses said they heard the Applicant accuse the inmate of spitting at him, was the level of force used by the Applicant reasonable? 42Section 13.7.1 of the OPM, Alternatives to the Use of Force, provides: When emerging problematic behaviour is identified early enough and managed according to CSNSW's case-management policy, the need to use force may be reduced. Force is always the option of last resort. In developing situations, the following strategies may also avoid the need to use force: presence of and frequent patrols by correctional officers; persuasion and negotiation with inmates; and the presence of, and instructions by more senior officers. Force must not be used if there are alternatives to its use. [emphasis added] 43The legislation states that the amount of force used should be limited to that required to control the situation. 44The use of force is a fundamental component of the primary training of correctional officers. The Applicant has not received training on use of force since 1996. However, he undertook a baton recertification course on 26 December 2013 (having undertaken the original course on 27 December 2011). The evidence indicates that during the training on the use of batons, use of force basic principles were refreshed with emphasis placed on the twin requirements of "necessity" (requirement of the legislation) and "reasonableness" (tactical options available) as justification for the use of force. Also as part of that training, the Applicant was educated on "Escalation of Trauma" during which it was pointed out that striking (albeit with a baton) anywhere on the head may result in an injury which tends to be permanent rather than temporary and may include unconsciousness, serious bodily injury, shock or death. Mr Wilson acknowledged that the Applicant last had training on use of force in 1996 and acknowledged that he should have been afforded more recent training. Although the format of the Use of Force policy may have changed over the years, the principles have never changed as they are enshrined in legislation. 45The Applicant gave evidence that he took action when the inmate went to spit a second time and, as he bent him to the ground, was making noises as if he was going to spit. The Applicant also gave evidence that he intended to hit the inmate in the abdomen to wind him. If that was the case, then if the inmate was indeed in a state of readiness to spit at the Applicant, the punch to the abdomen surely would have caused him to spit out what was gathered in his mouth right into the face of the Applicant who was bent over him. 46The Applicant stated that his actions had been spontaneous. I do not accept that given that he took the time to take the tactical step of stepping ahead (and still to the side) of the inmate in order to close the door and block the view of the inmates in the vehicle bay before turning to face and deal with the inmate. There was absolutely no non-compliance by the inmate during that time. If the inmate was indeed about to spit again, the Applicant placed himself directly in a position to be so assaulted. 47The Reception Screening Tool completed on the Inmate on 7 January 2013 indicated that he suffered from chronic hepatitis C. He was also methadone dependent and had a history of withdrawal seizures, his last seizure being on 6 January 2013. 48The laceration above the inmate's eye caused bleeding which put the health and safety of the Applicant and the other Officers at risk. I acknowledge that the inmate had a history of withdrawal seizures. It does not excuse the fact that he suffered a seizure and required hospital treatment after this incident. 49There was no medical evidence before the Commission in relation to the Applicant's broken hip causing his knee to rise. That did not occur at any other time during the CCTV footage. 50To his credit, during cross-examination, the Applicant conceded that, in hindsight, he could have utilised other means to stop the inmate from further spitting at him: Cosgrove: ... hitting an inmate in the abdomen, is that your understanding of an approved method of control? Byrne: As we speak, no. At that time I made a wrong decision. I've admitted I made a mistake. I made a wrong decision. There is at least one other option I could have used and being totally honest with you, ma'am, what I should have done was get the officers with me to all basically contain him. As it was and the way I am I tried to control the situation myself. I know I made the mistake and I've admitted to that on numerous occasions. 51Mr Wilson gave evidence that he was satisfied that the CCTV footage he viewed had captured all he events which were the subject of the investigation finding that the use of force was excessive: What I was considering was what was in the video and it showed, for a considerable period of time, where they were walking down the corridor, they were holding the inmate, the inmate was cuffed, the inmate was compliant and there was nothing happening. They were walking down the corridor and all of a sudden they stopped, they closed the door for an unknown reason and that's when the use of force started. I could not see any circumstances to warrant the force at that point in time. Mr Wilson deemed the Applicant's acknowledgement of the fact that he made a mistake as an attempt to minimise the serious implications of his behaviour. 52The use of force used by the Applicant, in my view, was not commensurate with the alleged offence of the inmate. The inmate was handcuffed, he was compliant and was walking towards the vehicle bay with the Officers. I find that the degree of force applied by the Applicant was unreasonable in the circumstances. Did the Appellant fail to follow the Use of Force Policy with respect to the use of a hand held video camera to record the incident on 8 January 2013? 53It was alleged that the Applicant, on 8 January 2013, at the Central Court Cells, failed to ensure that a video camera was on hand to record the use of force incident upon inmate D which was in breach of the CSNSW Use of Force Policy, Section 13.7.5. 54Section 13.7.5 of the Operations Procedure Manual (OPM), Video Recording the Use of Force, states: When the use of force is expected or planned or when there is a high potential for conflict, a video camera must be brought to the scene. An example is an inmate who is refusing to comply with a lawful instruction and there is no immediate risk to security, personnel, or other inmates. In that and similar situations, force must not be applied until a video camera is on the scene and recording the actions and conversations of all those involved. This is a requirement even if the area is subject to CCTV surveillance and recording. If a video camera is not used, the most senior officer present at the incident must provide an explanation in their report. An explanation is unacceptable if it merely states that time did not allow a camera to be brought to the scene. The explanation must detail the circumstances which existed that precluded a camera being brought to the scene in sufficient time. 55The Applicant submitted that, if he had been advised, prior to the transfer,, of the inmate's earlier threat or his conduct earlier that day, he would have asked for one of the other officers to film the transfer on a video camera; 56There was no evidence before the Commission that the Applicant was aware of the inmate's alleged conduct earlier that day. Therefore, all things being equal, the use of force was not expected by the Applicant nor was there any reason to anticipate a potentially risky situation. However, he did not think to question if there were any potential risks given that two court staff, gloved to handle inmates, accompanied them during that transfer: .... It was the end of the day by - once we've got [D] on the truck the cells would have been empty so they're all having little chit chats along the way and I've had that before where officers have walked up behind us, not even taking any notice of us, just chatting away. It's Friday, where are you going tonight and ... I didn't see them walking behind me ... I knew there'd be one officer behind me. I didn't look around to see if there were two or three or 10.... If I thought there was a problem at all I would have asked the OIC to accompany us... I would not have had a female officer there. I would have asked for two male officers with a handheld camera...Nobody told us there was a problem.... it was ... a very easygoing escort, up until those last few moments. He did not find out that there were issues between inmate D and Officer Masters until he spoke to some of the staff after the incident. 57I do not accept that submission. The court officers had accompanied the Applicant and Officer Critcher from the time they collected inmate D from the court cells. I do not accept that he had not seen those two Officers walking behind them. 58Officer Critcher recalled hearing the inmate clear his throat when he first walked from the cell. Officer Masters who, co-incidentally, was allegedly threatened/assaulted by inmate D earlier that day, reported that she heard nothing and saw nothing that would justify the actions taken on that day by the Applicant. 59If the inmate spat at the Applicant and was getting ready to repeat the action, the logical step would have been to turn his face and mouth away from the Officers. That would provide an opportunity for someone to fetch a video camera in anticipation of further attempts of assault by that inmate. 60Nevertheless, having found that the inmate did not spit on the Applicant and, given that he took the time to close the door, and the physical position the Applicant had placed himself in prior to using force on the inmate, I believe that there was sufficient time to take precautions against being spat at whilst a video camera was being fetched to record the inmate's interaction with the Officers thereafter. 61I find that the allegation that the Applicant failed to follow the Use of Force Policy with respect to the use of a hand held video camera to record the incident on 8 January 2013 sustained. Was the Use of Force Incident Report completed correctly and accurately? 62It was alleged that the Applicant, on 8 January 2013, at the Central Court Cells, completed an Officer Report Form in relation to the incident of use of force upon inmate D, the details of which have been found to be false and misleading in a material particular in contravention of subsections (1) and (2a) of Clause 260 of the Crimes (Administration of Sentences) Regulation 2008. 63In his report to the Investigator, the Appellant argued that the Use of Force Incident Report was completed correctly and accurately in that he had neatly described the situational event, the action taken and the outcome. 64The Applicant gave evidence that at the Academy they are taught to write short and concise words so as not to bore readers. 65Section 13.7.8 of the OPM, Reporting the Use of Force, provides: If you use force on an inmate you must write an independent Incident Report (Annexure 13 (a)) within 2 hours, or as soon as the circumstances allow. In all cases, you must submit your report before you cease duty. A written report is mandatory irrespective of the type or amount of force that was used. Your report must explain why the force was necessary, and any instructions you or someone else gave to the inmate(s) along with their response. The report must also describe in detail the type of force that was actually applied; it is unacceptable to describe the force used as "the minimum necessary". [emphasis added] 66The Applicant, in his report: * omitted to state that he was trying the strike the inmate in the abdomen and instead connected with his head; * Said that he took the inmate to the ground when he did not. * Made no mention of the fact that the other inmates had witnessed the alleged assault and had become agitated; * Stated that the spitting occurred when they entered the airlock. After viewing the CCTV footage, he claimed it happened in the corridor before entering the air lock 67I do not accept that, with all of his years of experience, the Applicant would sacrifice the inclusion of such important and relevant facts from his report for the sake of brevity. 68I accept that the Appellant had not complied with the Respondent's requirements in relation to reporting. CONSIDERATION 69Section 41 of the Public Sector Employment and Management Act 2002 contains the Objects of that Act which are stated to be: (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, (c)To ensure that the public interest is protected. 70The disciplinary actions available to Assistant Commissioner Wilson pursuant to section 42(1) of the Act were: Caution Reprimand Fine Reduction in salary Demotion to a lower graded position To be allowed to resign Direction to resign Dismissal (or in the case of an officer on probation - Annulment) 71Assistant Commissioner Wilson based his decision to dismiss the Applicant on four matters - the Investigation Report, the Objectives contained in section 41 of Part 2.7 of the Public Sector Employment and Management Act 2002, previous conduct matters and the oral and written submissions of the Applicant. 72The previous conduct matters were: (a)An allegation in 2007 of improper treatment towards a protected inmate resulting in her sustaining injuries requiring medical treatment from handcuffs. In addition, he had allegedly discussed the nature of the offence committed by the inmate to other inmates, placing her at considerable risk of harm. The Applicant had been referred to the Risk Assessment Committee for ongoing monitoring due to similar previous allegations; It is noted that the Applicant denied any recollection of this incident. He denied ever discussing an inmate's offence(s) with other inmates. (b)The Applicant received a letter of warning dated 12 January 2007 regarding an incident where he made a slashing movement across his neck towards the driver of another vehicle and, when the driver of that vehicle approached the Applicant, the Applicant withdrew his pistol. The Applicant recalled that it was a road rage issue. The driver of the other vehicle got down from his vehicle and approached the mobile goal. He took out his Glock pistol and put it on his knee - not on the steering wheel as alleged - and motioned a number of times for the other driver to go away which he eventually did. © The Applicant received counselling in 2005 when it was recorded via video camera that he involved himself, without authority, in an unnecessary scuffle with an inmate during which he kicked the inmate following an allegation that the inmate spat on an officer. The Use of Force matter was referred to the Professional Standards Committee. The Applicant recalled that he was called into a meeting with two Assistant Commissioners who asked him three questions including "Would you do it again?" and "Have you learnt anything from it". They spoke for another 5 minutes and that was the end of the matter. (d) In 2003, the Applicant was counselled for non-use of video during a use of force incident at Penrith Court Cells. That matter was also referred to the PSC. The Applicant recalled that he was assisting a more senior officer to move an inmate to a bigger cell because she was swearing and kicking within the cell because it was small. There was no use of force connected with the move. When he found out, the following day, that the senior officer got into trouble for not using a hand held video camera to record the move, he went to the Officer-in-Charge and volunteered that he was with the senior officer during the move and was as much to blame. He was advised that he was off the hook because she was the more senior officer. (e) In 2001, there was an allegation of assault on an inmate at Downing Centre Court Cells but there was insufficient evidence for police to move on that allegation. The Applicant advised that the incident was not proceeded with by way of disciplinary action. (f) Counselling received following a complaint from a visitor. The Applicant stated that he was not personally counselled in relation to the matter. A general letter was sent to all staff in the Gate area of the MRRC advising them on how to behave with visitors. (g) A PCA charge at Penrith Local Court in 1998. 73The Appellant argued that the last time he received training was 14 years ago when he passed through the Corrective Services Academy despite the fact that there have been several legislative changes since then, including changes to the requirements on strip searches. In addition, he argued that he has still not been made aware of what misconduct he has committed and how to avoid making the same mistake in the future. 74I do not accept the Appellant's arguments in view of the evidence before the Commission to the contrary. The Appellant agreed, during cross-examination, that he told the Interviewers during the initial interview that he had a good understanding of the policy and had been trained on where to research/reference that policy. 75Regulation 121 of the Crimes (Administration of Sentences) Regulation 2008 relevantly provides: 121 Use of force in dealing with inmates (1) In dealing with an inmate, a correctional officer may use no more force than is reasonably necessary in the circumstances, and the infliction of injury on the inmate is to be avoided if at all possible. (2) The nature and extent of the force that may be used in relation to an inmate are to be dictated by circumstances, but must not exceed such force as is necessary for control and protection, having due regard to the personal safety of correctional officers and others. (3) ..... (4) Subject to subclauses (1)-(3), a correctional officer may have recourse to force for the following purposes: (a) to search, where necessary, an inmate or to seize a dangerous or harmful article, (b) .... (f) to avoid an imminent attack on the correctional officer or some other person, but only if there is a reasonable apprehension of such an attack, (g) ..... 76Therefore, the use of defensive tactics is an option available to correctional officers to use subject to that defensive tactic being: - in accordance with the Respondent's Use of Force Policy; - necessary; and - reasonable. 77The Applicant completed a baton recertification course on 27 December 2011 and was due for another recertification course on 26 December 2013. Therefore, as at the date of the incident, he was still certified in relation to baton training. 78The use of force is considered justified if it was both necessary and reasonable. It is considered necessary in circumstances where the correctional officers need to protect themselves or others or to move an inmate from one location to another. Whether the force used is considered to be reasonable is dictated by a consideration of its appropriateness in dealing with the circumstances or the inmate involved. In the present circumstances, the Applicant has not been able to convince the Commission that the use of force was necessary. He has also not been able to convince the Commission, in view of the circumstances described above, that the force used was reasonable. 79The Applicant admitted that he has been counselled on one occasion for using excessive force. 80No criminal action was taken against the Applicant by NSW Police. 81In an appeal by Lyle Young against a decision of the Commissioner of Corrective Services (Appeal No 140 of 2004), the Government and Related Employees Appeal Tribunal cited with approval the judgement of Powell JA in Commissioner of Police v Donlan and Hanson with regards to the nature of disciplinary proceedings in respect of police misconduct: While it might be possible in the case of a departmental charge involving disciplinary proceedings to characterise the power as a power to impose a penalty, or punishment, for an offence, the fact that the power is also exercisable in respect of an offence for which a court may impose, or has imposed, a penalty, or punishment, makes it clear that the true objects for the attainment of which the power was granted, and for which it is to be exercised, is, nor punishment, but the protection of the public, to maintain proper standards of conduct on the part of members of the Police Service and to protect the reputation of the Police Service (see, for example, Hardcastle v Commissioner of Police (1984) 53 ALR 593, 597 at 5-6). I concur with the view expressed by that Tribunal that analogous considerations apply to disciplinary action taken in respect of employees of Corrective Services. 82I further concur with the view expressed by that Tribunal that "the proper object of disciplinary proceedings is the protection of the public, the maintenance of correct standards of conduct on the part of employees of the Department of Corrective Services and the protection of the reputation of the Department. The abuse of an inmate, who of necessity is in position of vulnerability by a Corrective Services Officer, to the extent and degree found by the Tribunal in this case, constitutes in our view an especially serious form of misconduct". 83Mr Wilson was in the position of Acting Assistant Commissioner Custodial Corrections when he directed that the Applicant be dismissed from the public service. He did not consider remedial action to be appropriate in the circumstances. He had considered demotion and imposition of a fine as alternatives but deemed dismissal to be the appropriate disciplinary measure because it was a significant excessive use of force and having regard to the fact that he should have known better after 17 years in the job and having been involved in a previous incident. 84In Byrne v Australian Airlines Limited [1995] HCA 24; 185 CLR 410 at 465 McHugh and Gummow JJ stated; It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. I concur with Mr Wilson. The dismissal was not unjust because I find that the Applicant is guilty of the allegations of using unnecessary and unreasonable force against an inmate, of failing to video tape the record the incident and finally to report essential details of the incident. It was not unreasonable for the same reason. 85The termination was not harsh. The Applicant stated that he had not found alternative employment, his wife worked part-time and intended to retire in two years' time. No other personal or economic circumstances were advised. Weighed against the gravity of the allegations sustained against him, I do not find that the termination was harsh. 86I note the authorities relied on by the parties. I also note the precedents cited on behalf of the Applicant in relation to alleged unequal treatment of correctional officers in similar circumstances. Ultimately, each case stands or falls on its own merits. 87In view of all of the above, the Commission finds that the three allegations are sustained and declines to intervene to overturn the decision to dismiss the Applicant. 88Matter IRC 990 of 2013 is hereby concluded by dismissal of the application. 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: 05 December 2014