Industrial Relations Commission New South Wales Medium Neutral Citation: Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (CSNSW) [2016] NSWIRComm 1036 Hearing dates: 29, 30 August 2016 Date of orders: 11 October 2016 Decision date: 11 October 2016 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The application by Jason Wattie for reinstatement is granted Catchwords: UNFAIR DISMISSAL – Senior Correctional Officer – twenty two years service – decorated career – applicant experienced mental health issues – three assaults on inmates – two charges of common assault – one charge of assault occasioning actual bodily harm – applicant suffering from Post-Traumatic Stress Disorder (PSTD) Alcohol Use Disorder Major Depressive Disorder – assaults would likely be contributed by depressive symptoms and poor impulsive control – dismissal not unreasonable nor unjust – consideration of seriousness of misconduct against mitigating factors – dismissal harsh – reinstatement ordered – no order for back pay Legislation Cited: Crimes Act 1900 Mental Health (Forensic Provisions) Act 1990 Crimes (Sentencing Procedure) Act 1999 Government Sector Employment Act 2013 Cases Cited: Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Corrective Services NSW v Danwer [2013] NSWIRComm 61 Category: Principal judgment Parties: Jason Wattie (Applicant) Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (CSNSW) (Respondent) Representation: Counsel: Mr M Gibian (Applicant) Ms R Graycar (Respondent) Solicitors: W G McNally Jones Staff (Applicant) Mr J Baker (Respondent) File Number(s): 2016/171007 DECISION 1. The matter before the Commission is an application for relief in relation to unfair dismissal by Jason Wattie, former Senior Correctional Officer with Corrective Services NSW ('CSNSW'). The termination of Mr Wattie's employment took effect from 13 May 2016. 2. Mr Wattie joined CSNSW on 11 April 1994 at 21 years of age. Mr Wattie has, during his career with CSNSW, worked in a variety of metropolitan and regional locations performing a range of custodial and non-custodial roles, including a 12 month posting with Corrective Services Solomon Islands, working at the Rove Central Prison, Honiara, as Advisor to the Superintendent of Support Services. Mr Wattie attained the rank of Correctional Officer First Class in or about 1997, and was promoted to Senior Correctional Officer in or about 2001. 3. Mr Wattie has had a distinguished career as a Correctional Officer. The commendations and awards received by him are set out below: 1997 Commendation from Assistant Superintendent Ron Gerion for work performance at the John Morony Correctional Centre ('JMCC'). 1999 Certificate of Achievement in recognition of his active commitment, innovation and competence as a member of the JMCC Occupational Health & Safety Committee, in developing and maintaining a better and safer correctional centre environment. 2000 Commendation from Senior Assistant Commissioner Ron Woodham for displaying vigilance, dedication and initiative in alerting law enforcement authorities to the activities of an inmate who was utilising the inmate phone system to connect to a phone exchange with a business in Sydney. 2002 Commendation from F T Peterson, Governor, JMCC, for displaying commitment and dedication to duty as a member of the centre's Fire Team in responding to a bush fire that threatened the centre. 2007 DCS Team of the Year Award for his work in charge of a multi-disciplinary team within Custodial Workforce Planning to ensure that Wellington Correctional Centre was fully staffed by a short deadline to enable the centre to be fully operational from day one. 1. In April 2009 Mr Wattie received the National Medal for Service and the CSNSW Medal. 2. In November 2009 Mr Wattie was working with the State Emergency Unit. He was the officer in charge of the response to a disturbance at the Long Bay Hospital which was reported in the media as being "the worst riot in 25 years". Mr Wattie liaised with Centre Management and other units to formulate a three day staggered return to normal routine. The operation was successful. 3. In April 2014 Mr Wattie received the CSNSW Long Service Medal. 4. Prior to the incidents which led to his dismissal, Mr Wattie had never been the subject of any disciplinary investigation or action by CSNSW. Background to the dismissal 1. During his career Mr Wattie has experienced a number of mental health issues. A report prepared on 18 May 2015 by Dr Bruce Westmore, Forensic Psychiatrist, contained the following history: Of his mental health history, he first saw a psychiatrist in 2003, following workplace harassment and bullying. He received WorkCover support following those workplace difficulties. He saw the psychiatrist for 18 months and he was treated with medication on that occasion. He also received support from EAP. He next saw a mental health professional on 22 April 2013 and that was on a General Practitioner's Mental Health Care Plan Referral. He saw the psychologist on 3 occasions, but he did not feel he related to that particular counsellor. He said, at that time he was depressed and his general practitioner had prescribed Cymbalta. He took the antidepressant for 3 or 4 months. 1. On 12 June 2012 Mr Wattie's mother passed away in her home. Mr Wattie nursed his mother during her final days and administered the last injection of prescribed morphine to her. According to Mr Wattie, this action and subsequent feelings of guilt was something that he never discussed with anyone or dealt with until he started seeing Mark Boyce, Clinical Psychologist, on 6 August 2014. He claimed that, in the meantime, it slowly "ate away" at him. 2. According to Mr Wattie, at the time of his mother's death, he put on a strong persona. He organised the funeral, finalised his mother's affairs and organised his stepfather's affairs, as he was now on his own. When he felt he could cope with the loss of his mother, he returned to work. He did not take time out to grieve or to deal with his mother's final moments. Mr Wattie stated that his mother's death affected him more than he realised and, over time, his moods were down and he began to feel depressed. 3. As noted in Dr Westmore's report, Mr Wattie sought assistance from his GP, Dr Davis, who prescribed anti-depressants. Mr Wattie discontinued taking this medication due to its side effects. Dr Davis changed the medication but Mr Wattie was still experiencing side effects and stopped taking it. 4. Dr Davis referred Mr Wattie to a psychologist and, on 22 April 2013, he commenced consultations with Sue Benney, Psychologist. Mr Wattie saw Ms Benney on about three occasions but ceased consulting her as he felt that he was not getting any benefit from their time together. 5. Mr Wattie gave evidence to the effect that he had personal problems, in addition to problems at work, that contributed to or aggravated his depression. 6. In his evidence Mr Wattie stated that, on 5 June 2013, he was working in the Penrith Court cells when he was required to escort a male inmate to court with another officer. As he was walking from the cells to the courtroom, the inmate struck the other officer in the mouth with his right elbow. The inmate then assaulted Mr Wattie, punching him a number of times to the head and upper body. Mr Wattie completed his shift and attended his doctor the next day for treatment. He sustained a black eye from this assault. 7. Mr Wattie stated further that, also on 5 June 2013, about half an hour after the assault on him and while he was completing his duties, a female inmate assaulted him on at least four occasions and attempted to spit in his face on at least two occasions. He saw his doctor the next day for this assault as well. The female inmate was charged with assault and sentenced to a fixed term of an additional six months on 11 June 2014. 8. Mr Wattie claimed that a number of other health matters had been affecting him, in addition to his personal issues and the assaults at work, and that these problems also aggravated his depression. He had suffered ongoing problems with his right shoulder which had been diagnosed as bursitis in 2010, causing pain in his shoulder and arm and sometimes numbness in his hand. He had a cortisone injection and MRI scans which showed that he had bulging discs and an impinged nerve in his neck which was causing the numbness and pain in his right shoulder, arm and hand. 9. Mr Wattie also stated that there had been two issues with correctional officers at work which had affected his moods. 10. The first issue involved a First Class Correctional Officer who had refused to follow Mr Wattie's instructions on one occasion and had been abusive and condescending towards him and insubordinate in front of other correctional officers. On 24 September 2013 Mr Wattie lodged a complaint about this officer's conduct towards him with the Acting General Manager of the Amber Laurel Correctional Centre. Mr Wattie claims that no action was taken in relation to this complaint, leaving him feeling abandoned and unsupported by management. 11. On 6 August 2014 Mr Wattie consulted Mark Boyce, Psychologist. At the time he was feeling depressed and irritable. In a report dated 18 September 2014, Mr Boyce stated that Mr Wattie had been undertaking treatment to address Social Phobia and Major Depressive Disorder. His pre-treatment DASS-42 scores as at 7 August 2014 were recorded as: Depression – 32 (extremely severe) Anxiety – 14 (moderate) Stress – 19 (severe) 1. Mr Wattie consulted Mr Boyce on six occasions. He was placed on different anti-depressant medication. He felt that he had made some progress on the issues he could control. 2. Mr Wattie gave evidence that, on 25 August 2014, a second issue arose at work. This issue was with another First Class Correctional Officer. This officer had confronted Mr Wattie and questioned a decision he had made, which was to comply with the General Manager's direction regarding pick up locations. On 28 August 2014 the officer concerned distributed an email, utilising the CSNSW email system, to the 30 staff with whom Mr Wattie worked, attacking his management skills and him as a person. 3. Mr Wattie made a verbal internal disclosure with an Assistant Superintendent over this issue. Despite following this matter up in December 2014, Mr Wattie did not receive a response and is unaware of any action taken by CSNSW in relation to this internal disclosure. 4. Mr Wattie continued with treatment with Mr Boyce and by 18 September 2014 his DASS-42 scores for depression, anxiety and stress were recorded as being within the normal range. Incidents which led to dismissal First incident 1. On 13 September 2014 Mr Wattie was working as Acting Assistant Superintendent at the Amber Laurel Correctional Centre. This correctional centre has its own particular challenges for correctional officers. Prisoners are received from police. They may have only been recently taken into custody and may be affected by drugs. They are often abusive and aggressive to correctional officers. They are required to be strip searched to ensure that they are not carrying concealed weapons or other contraband. 2. On this day Mr Wattie was receiving a prisoner from police. The Prisoner/Intoxicated Persons Transfer Card, which had been completed by police, contained the following notations: Has level of resistance: ARMED WITH EDGED WEAPON; RESISTED CONTROL, WRESTLE; Has level of resistance: UNARMED; RESISTED CONTROL, WRESTLE; WILL THREATEN TO KILL POLOICE WILL SPIT AT POLICE 1. Mr Wattie had not seen this document prior to the reception of the inmate. When Mr Wattie advised the inmate that he was about to be strip searched, he resisted saying that he had already been searched by the police. What followed was captured on CCTV footage and is described below: The inmate is seen entering the reception room holding his shoes in his right hand. Mr Wattie follows him into the room. The inmate is verbalising and gesticulating with his hands. Mr Wattie directs the inmate to an area of the room where there is a bench seat visible in the top left side of the screen. The inmate continues to verbalise and gesticulate at Mr Wattie. The inmate then removes his zip front jacket. Mr Wattie takes the jacket from the inmate's right hand. The inmate begins to unbutton his shirt while turning to his left away from Mr Wattie. Mr Wattie moves toward the inmate. At this point the whole of the inmate's upper body is obscured from the camera by Mr Wattie's body with his back to the camera. Mr Wattie appears to be attempting to push the inmate down onto the bench seat. There is then seen from behind a short sharp movement of Mr Wattie's right arm. It is not possible to see if Mr Wattie's right hand was opened or clenched during this movement or if any contact was made with the inmate. Mr Wattie backs away from the inmate who rises to his feet and continues to undress while verbalising and gesticulating at Mr Wattie. 1. Following this incident the inmate was examined by Registered Nurse, Biraj Basnet, whose report contained the following: On examination, patient was alert and oriented to time, place and person. During interaction, patient was very agitated, aggressive and had impulsive behaviour towards nursing staff. He was very demanding, screaming and rude. On examination, nil injuries, redness or marks sustained to any parts of body. 1. In a report on this incident dated 13 September 2014 Mr Wattie stated that the inmate was swearing and being abusive and non-compliant. At the point where the inmate turned away from Mr Wattie, he was told to face Mr Wattie and take his shirt off. Mr Wattie stated that he then saw the inmate's right arm move quickly towards Mr Wattie's upper body. This movement cannot be seen on the CCTV footage because the inmate's upper body is completely obscured by Mr Wattie's body. Mr Wattie stated that he moved forward grabbing the inmate's right upper arm with his left hand and the inmate's left shoulder with his right hand and pushed the inmate in a downward direction onto the seat behind him. According to Mr Wattie, he then heard the inmate make the sound of drawing up phlegm and believed the inmate was going to spit on him. Mr Wattie stated that his right hand let go of the inmate's left shoulder and he quickly moved his right hand to cover the inmate's mouth and directed his head away from facing Mr Wattie. This action cannot be seen on the CCTV footage due to it being obscured by Mr Wattie's body. After this, the inmate stood up and continued to undress and to remonstrate with Mr Wattie. 2. Two other correctional officers were in the vicinity of the reception room when this incident occurred and both made incident reports on that day. Both officers confirmed that the inmate was being non-compliant, abusive and aggressive towards Mr Wattie. Both officers stated that they heard the inmate make a sound as if he was drawing spit into his mouth before they saw Mr Wattie's right hand move off the inmate's shoulder and in the direction of his mouth. 3. On 22 September 2014 Brian Cullen, then Manager of Security, Court Escort Security Unit ('CESU'), submitted a report to the Professional Standards Committee ('PSC') about this incident. In that report Mr Cullen indicated that there had been excessive force and noted that the report made by Mr Wattie was not consistent with the actions observed on the CCTV footage. It was also noted that Mr Wattie had previously been referred to the PSC for use of force matters. 4. In a memo dated 1 October 2014 from Matthew Horan, A/Superintendent, CSNSW Investigations Branch, to Antonia Barila, A/Coordinator – Professional Standards Committee, Governance & Continuous Improvement, Mr Horan, after reviewing the CCTV footage of the incident, stated as follows: A review of this use of force has identified a number of issues: • There is no evidence available to indicate that [the inmate] moved his right arm quickly up towards Officer Wattie's upper body. • There is evidence available to indicate that Officer Wattie moved towards [the inmate], physically forcing him onto a seat in the corner of cell. • There is evidence available to indicate that Officer Wattie struck [the inmate] to the head/upper body. • There is evidence available to indicate that Officer Wattie failed to accurately report the use of force upon [the inmate]. 1. Mr Wattie stated in evidence that, to add to all his other problems, in October 2014 he split up with his girlfriend of four years. This break up took an emotional toll on him. 2. On 13 October 2014 Mr Wattie consulted a sleep specialist, Dr Shu Chan, in relation to problems he had been experiencing with sleeping throughout 2014. He was diagnosed with partial mild sleep apnoea and shift work insomnia. 3. According to Mr Wattie, on 4 November 2014 he was at a hotel in Penrith for Melbourne Cup Day. A scuffle broke out. Mr Wattie and a friend intervened to break up a three-on-one attack. Mr Wattie was 'king hit' on his blind side and received a number of punches to the head and body. As a consequence, Mr Wattie experienced headaches which lasted for two weeks. He started drinking a lot of alcohol after this incident to block it out of his mind. 4. By letter dated 15 December 2014 from Mark Wilson, Assistant Commissioner, Security and Intelligence, Mr Wattie was advised that an investigation was to take place into an allegation of misconduct, the detail of which was that on 13 September 2014 at the Amber Laurel Correctional Centre Mr Wattie: • Struck [the inmate] in the head/upper body without reasonable cause as depicted by the CCTV footage; • Used force that was unreasonable and unnecessary without any provocation or resistance from [the inmate] as indicated in the CCTV footage; • Failed to accurately report the use of force in providing a report that was inconsistent with the CCTV footage of the incident. 1. The investigation into this allegation of misconduct did not proceed at this time as events were overtaken by the second and third incidents which gave rise to two further sets of allegations of misconduct, and by proceedings in the Penrith Local Court and in the District Court. Second Incident 1. On 19 December 2014 Mr Wattie was escorting an inmate in the Amber Laurel Correctional Centre to the centre's exit gate. CCTV footage of the incident shows Mr Wattie walking several paces behind the inmate. The inmate stops at the gate. As Mr Wattie catches up to the inmate he strikes the inmate to the left side of the head with his right hand. Mr Wattie then opens the gate, the inmate proceeds out and Mr Wattie shuts the gate after him. 2. On 6 January 2015 this incident was brought to the attention of Angela West, Assistant Commissioner, Security and Intelligence, by Ron Gerion, A/General Manager, CESU, with a recommendation to forward all current held reports and video footage to Michael Hovey, General Manager, Investigations Branch, for further review and action. Third incident 1. On 5 January 2015 Kevin Martin, Manager of Security, CESU, referred to the PSC a further incident that took place on 29 December 2014. The allegation was that, while Mr Wattie was strip searching an inmate, the inmate threw his t-shirt in the direction of Mr Wattie's head. Mr Wattie then proceeded to strike the inmate at least six times. 2. CCTV footage of the incident shows an inmate in the reception room with his back to the bench seat facing Mr Wattie. The inmate removes his long sleeve hooded top and hands it to Mr Wattie. The inmate then removes his t-shirt and the singlet he was wearing in the one motion and, using both hands, tosses them upwards into Mr Wattie's face. Mr Wattie brushes the clothing aside with his left hand, advances on the inmate and strikes the inmate six times with his right hand. After the assault, which lasts approximately seven seconds, the inmate is seen sitting on the bench seat holding his head in his hands. There was evidence that the punches to the inmate's face caused red marks, bruising and a clicking jaw bone. 3. On 7 January 2015 Mr Wattie was suspended with pay in accordance with section 70 of the Government Sector Employment Act 2013 pending investigation of the third incident. Mr Wattie was invited to show cause as to why the salary payable to him should not be withheld during the period of suspension. Criminal proceedings 1. On 13 January 2015 Mr Wattie was arrested and charged by NSW Police with: * Common assault (section 61 Crimes Act 1900) on an inmate on 13 September 2014; * Common assault (section 61 Crimes Act 1900) on an inmate on 19 December 2014; and * Assault occasioning actual bodily harm (section 59 Crimes Act 1900) on an inmate on 29 December 2014. 1. On 10 June 2015 Mr Wattie appeared at Penrith Local Court and entered pleas of not guilty to each of the three criminal charges and the matters were adjourned pending consideration of an application under section 32 of the Mental Health (Forensic Provisions) Act 1990. 2. In relation to the first incident, the NSW Police Fact Sheet tendered to the court contained the following: The victim has removed his jacket and handed it to the accused. The victim has then commenced to remove his shirt. Whilst the victim was removing his shirt the accused has walked towards him, taken hold of him and held him against the wall. At this point the alleged offence is concealed from the CCTV camera by the body of the accused. The victim states that the accused has choked him with his hand, causing the victim to make choking and gagging sounds, then punched him once in the left temple with his right hand. The accused has completed a 'use of force' report in which he states the victim raised his right arm in a threatening manner towards the accused which caused him to take hold of the victim. The accused further states the victim made a noise that sounded like the victim was drawing up phlegm. Fearing he was going to be spat on the accused states he pushed the victim's head in a direction away from the accused's face. The conduct of the accused and the victim is captured on CCTV. The claim of self defence is disputed by the prosecution on the basis that the response of the accused to the conduct he perceived the victim to be engaging in, is excessive and beyond what is reasonably necessary to control the situation and to defend himself. 1. Mr Wattie was again before the court on 7 August 2015. On that occasion the section 32 application was refused. Mr Wattie then entered pleas of guilty to each of the three charges. In respect of the two charges of common assault, the offences were proved but no convictions recorded and Mr Wattie was ordered to enter bonds to be of good behaviour for 12 months under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. In relation to the assault occasioning actual bodily harm matter, a conviction was recorded and Mr Wattie was ordered to enter into a bond under section 9 of the Crimes (Sentencing Procedure) Act. Mr Wattie lodged an appeal to the District Court against this sentence. 2. The appeal came before Garling ADCJ on 28 August 2015. His Honour upheld the appeal, quashed the conviction, ordered that the charge be dismissed and substituted a section 10(1)(b) bond for the section 9 bond, leading to the result that no conviction was recorded on any of the three charges. In upholding Mr Wattie's appeal his Honour referred to what was seen on the CCTV footage and then made the following remarks: The appellant is a man of excellent character. I have read references including him being praised for assisting in his work to such an extent that the Senior Assistant Commissioner has written to him complimenting him. He has also received another commendation. He has been a prison officer for many years. I also have a reference from the President of the Penrith Rugby Club speaking highly of him. The appellant is in a difficult job, dealing with people who, from my knowledge of what goes on, show little or no respect to prison officers. They tend to act from time to time in a very provocative manner. The appellant obviously has handled that for many years but this time he was under some stress, I have a report from Dr Bruce Westmore, Psychiatrist, including that the appellant had a past history of depression. He had other stressors in his work and he was suffering from a major depressive disorder prior to and leading up to the matter now before the Court. Taking all those matters into account and the other reports I have read which include one relating to features of post-traumatic stress disorder, I have concluded that whilst the offence was proven that this is a classic case where it should be dealt with pursuant to s 10 with a bond. It falls directly into the criteria set out as to how courts should deal with s 10 of the Sentencing Act. Disciplinary proceedings 1. Following the finalisation of the court proceedings, Assistant Commissioner Wilson wrote to Mr Wattie on 11 September 2015 setting out the following allegations of misconduct for his response: The first set of allegations of misconduct is that on 13 September 2014 at the Amber Laurel Correctional Centre, NSW, you: • Struck [an inmate] in the head/upper body multiple times without reasonable cause; • Used force against [the inmate] that was unnecessary, unreasonable and not required to manage any risk presented by [the inmate], contrary to the Using Force on Inmates policy of CSNSW Custodial Policy and Procedures; and • Failed to accurately report your use of force in writing, such that your report was false or misleading in a material particular, contrary to the requirements of the Using Force on Inmates policy of CSNSW Custodial Policy and Procedures, cl.251(2) of the Crimes (Administration of Sentences) Regulation 2014 and the CSNSW Guide to Conduct and Ethics 2010. The second set of allegations of misconduct is that on 19 December 2014 at the Amber Laurel Correctional Centre, NSW, you: • Struck [an inmate] to the side of the head without reasonable cause; • Used force against [the inmate] that was unnecessary, unreasonable and not required to manage any risk presented by [the inmate], contrary to the Using Force on Inmates policy of CSNSW Custodial Policy and Procedures; and • Failed to report your use of force in writing, contrary to the requirements of the Using Force on Inmates policy of CSNSW Custodial Policy and Procedures. The third set of allegations of misconduct is that on 29 December 2014 at the Amber Laurel Correctional Centre, you: • Struck [an inmate] in the head/upper body multiple times without reasonable cause; • Used force against [the inmate] that was unnecessary, unreasonable and not required to manage any risk presented by [the inmate], contrary to the Using Force on Inmates policy of CSNSW Custodial Policy and Procedures; and • Failed to accurately report your use of force in writing, such that your report was false or misleading in a material particular, contrary to the requirements of the Using Force on Inmates policy of CSNSW Custodial Policy and Procedures, cl.251(2) of the Crimes (Administration of Sentences) Regulation 2014 and the CSNSW Guide to Conduct and Ethics 2010. 1. On 2 October 2015 Mr Wattie provided Mr Wilson with a comprehensive response to the misconduct allegations. At the outset of his response, Mr Wattie raised the issue of his medical and psychological health leading up to the particular incidents of alleged misconduct. Mr Wattie then dealt with each set of allegations in turn. 2. In relation to the first set of allegations, Mr Wattie denied that he struck the inmate in the head/upper body multiple times without reasonable cause. He claimed that he honestly believed that the inmate was going to assault him and that he pushed him back in an attempt to prevent any assault. It was then that he heard the inmate drawing up phlegm and may have struck him with an open hand in the left temple during the struggle to move his mouth from pointing in Mr Wattie's direction. Mr Wattie accepted that this may have been an overreaction by him. He also denied that he failed to accurately report his use of force or that his report was false and misleading in a material particular. 3. In relation to the second set of allegations, Mr Wattie claimed that he had no recall of that incident until he was shown the CCTV footage by his solicitor. He admitted that the CCTV footage shows him striking the inmate to the side of the head and that he had no cause to do so. He admitted that the force he used against the inmate was unnecessary, unreasonable and not required to manage any risk presented by the inmate. He also admitted that he failed to report this use of force in writing but claimed to have had no recollection of this incident. 4. In relation to the third set of allegations, Mr Wattie claimed that, when the inmate threw his clothing in Mr Wattie's face, he panicked as he thought he was under imminent attack. He admitted, having viewed the CCTV footage, that he overreacted to having his vision momentarily obstructed and agreed that he had acted inappropriately and unreasonably in all the circumstances. Mr Wattie did not accept that he failed to accurately report his use of force or that his report was false and misleading in a material particular. 5. Mr Wattie apologised for his behaviour and expressed regret for what he had done. He stated that he would like to be able to continue in his career. 6. By letter dated 22 March 2016 to the solicitors acting on behalf of Mr Wattie, Mr Wilson advised that he had determined that each particular of each set of allegations of misconduct had been sustained, apart from the failure to accurately report his use of force in relation to the third set of allegations. 7. In relation to the first set of allegations, Mr Wilson, in particular, stated that he did not agree with Mr Wattie's contention that, prior to pushing the inmate in a downward direction, the inmate's right arm moved quickly up towards Mr Wattie's upper body. He stated that this was not shown on the CCTV footage and it is not consistent with the police facts sheet tendered during the court proceedings. These observations are inaccurate. Firstly, from the point where the inmate begins to unbutton his shirt, his upper body, including his right arm, is obscured by Mr Wattie's body. It is not possible to determine from the CCTV footage that the inmate did not raise his right arm as stated by Mr Wattie. Secondly, there is nothing in the police facts sheet which is inconsistent with Mr Wattie's claim about the movement of the inmate's right arm. The relevant part of the police facts sheet states: The claim of self defence is disputed by the prosecution on the basis that the response of the accused to the conduct he perceived the victim to be engaging in, is excessive and beyond what is reasonably necessary to control the situation and to defend himself. 1. Mr Wilson indicated that the severest penalty he was considering imposing was termination of employment after Mr Wattie has been given the opportunity to resign. 2. Mr Wattie had a face to face interview with Mr Wilson on 27 April 2016 during which he presented a detailed written submission dealing with each set of allegations and with the issue of penalty. 3. By letter dated 5 May 2016 Mr Wilson advised the solicitors acting for Mr Wattie of his decision that Mr Wattie's employment be terminated with the opportunity to resign. Mr Wilson stated that he had imposed this action against Mr Wattie for the following reasons: • The misconduct was very serious and involved more than one instance of an inmate being subject to undue use of force; • SCO Wattie acknowledged that his conduct was wring, however, I am not satisfied he appreciated the gravity of his misconduct; • These matters have brought discredit upon SCO Wattie and had the effect of undermining the integrity and reputation of the government sector; • Subjecting an inmate to undue force is incompatible with the duties and responsibilities of a Correctional Officer, being – • A betrayal by SCO Wattie of his employer's trust and confidence; and • Was intolerable conduct in the correctional environment, where he was required to exemplify good conduct; • I cannot be satisfied that there will not be a similar occurrence of misconduct involving SCO Wattie, particularly when he could not even recall one of the instances when he used force, without reasonable cause, against an inmate [Inmate B……. on 19 December 2014]; and • It would undermine public confidence in the government sector for a person who has acted so contrary to their responsibilities as a Correctional Officer, to remain employed as a Correctional Officer or in the NSW Public Service generally. Nowhere in this correspondence is any reference to Mr Wattie's lengthy past service or to the medical evidence and other mitigating factors put forward by him during the disciplinary process. 1. Mr Wattie was given seven days to tender his resignation. When he failed to resign, his employment was terminated with effect from 13 May 2016. It is against this decision that Mr Wattie brings this application for relief in relation to unfair dismissal. Case for the applicant 1. Mr Wattie stated in evidence that he took full responsibility for each of the three incidents which led to his dismissal. He accepted that his actions were inexcusable but were contrary to his usual behaviour with difficult or non-compliant inmates. He had experienced similar problem inmates in the past but had never reacted the way he did during the three incidents in question. 2. It was Mr Wattie's belief that his out-of-character behaviour occurred as a result of the mental state he was experiencing at the time. He has received appropriate treatment and is confident that there is no possibility that such conduct could possibly occur again in the future. 3. He realised before the three incidents occurred that he needed to seek help which he did. He continued to receive psychiatric treatment after he was suspended by CSNSW. In October 2015 Mr Wattie completed an 18 week anxiety/depression skills program at the St John of God Health Care Counselling and Therapy Centre. He stated that this program assisted him to deal with issues affecting his life and allowed him to implement safeguards so that he did not to return the mental state in which he had found himself in 2014. 4. Under cross-examination Mr Wattie was adamant that he had not previously been subject to any disciplinary investigation or action over incidents involving use of force, but he stated that he had been referred for training in use of force reporting. 5. Mr Wattie was questioned at some length in relation to the incident on 5 June 2013 where he claimed that he had been assaulted by a female inmate. It was put to Mr Wattie that he had been the subject of a disciplinary investigation in relation to this incident. He denied this saying that it was a preliminary investigation. Counsel for Mr Wattie objected to this line of cross-examination on the ground that this was not an incident which was relied upon to support the dismissal. Counsel for CSNSW pressed the line of questioning on the basis that it went to Mr Wattie's credit. I permitted her to continue. Ultimately counsel for CSNSW tendered a memorandum relating to this incident dated 10 February 2014 from Melissa Estevez, A/Professional Standards Committee Coordinator to Glen Scholes, Director, Security and Intelligence. This memorandum confirmed Mr Wattie's evidence that there had been a preliminary investigation into the incident, rather than a disciplinary investigation. The memorandum contained the following extract: Amongst other things the investigation found: • no substantial evidence to support the allegation that Officer Jason Wattie kicked [the female inmate] in the back of the feet and heels; and • Officer Wattie should have provided a more accurate description of the force used to restrain [the female inmate]. 1. The upshot of this incident was that Mr Wattie was, as he stated under cross-examination, referred for training in use of force reporting procedures. To the extent that this issue was raised in the context of an attack on Mr Wattie's credit, it failed to demonstrate any lack of credit on his part. On the contrary, this matter confirmed Mr Wattie as an honest and credible witness. 2. In addition, Mr Wattie presented a significant amount of medical evidence in support of his unfair dismissal application. Given his medical history referred to at paragraph 8 and following above, it is clear that Mr Wattie was experiencing serious mental health problems during the period leading up to and including the three incidents which led to his dismissal. 3. The Clinical Psychologist, Mr Boyce, noted the improvement in Mr Wattie's DASS-42 scores between 7 August and 18 September 2014. However, Dr Ravinda Chandrasekara, Consultant Psychiatrist, who had been treating Mr Wattie from 14 January 2015, diagnosed him as suffering from: * Post-Traumatic Stress Disorder (PSTD). * Alcohol Use Disorder. * Depressive Disorder 1. According to Dr Chandrasekara's report dated 27 April 2015, features of PTSD include anger and irritability. The doctor believed that Mr Wattie had been suffering from PTSD since 2013 and that lack of sleep can compound anger. Mr Wattie had been using alcohol to self-medicate, which can also contribute to mood instability and depression. Dr Chandrasekara also expressed the opinion that Mr Wattie was extremely sensitive to violence as a result of his childhood experiences. 2. Dr Westmore, Forensic Psychiatrist, was engaged for the purpose of preparing a report in support of an application under section 32 of the Mental Health (Forensic Provisions) Act. In preparing his report dated 18 may 2015, Dr Westmore took an extensive history from Mr Wattie. The section 32 application was not granted in the local court proceedings. However, Dr Westmore's provisional diagnosis was as follows: My provisional diagnosis is that Mr Wattie has developed a Major Depressive Disorder with significant co-morbid anxiety. The differential diagnosis would include a moderate to severe Adjustment Disorder with depressed and anxious mood. I note that the treating psychiatrist has had more contact with Mr Wattie than I have and that doctor has made the diagnosis of PTSD. In view of Mr Wattie's history of exposure to repeated trauma, including events pre-dating his more recent history, I think it is probable that the diagnosis of PTSD could be sustained. Further on in his report, Dr Westmore stated: I believe that Mr Wattie was suffering from a Major Depressive Disorder prior to and leading up to the matters now before the court. He had seen his general practitioner and a psychologist and antidepressants had been commenced. If one looks at his longitudinal life history including his work history, where he said he had no previous disciplinary charges, the current alleged offences are inconsistent with his past history. The alleged offending behaviour appears to be unexpected and unpredictable. People who are depressed have reduced frustration tolerance and sometimes poor impulse control and Mr Wattie himself describes symptoms of that type…. …Mr Wattie was suffering from a mental condition at the time of the alleged offending behaviour, specifically a Major Depressive Disorder. I believe that condition played a significant and primary role in the alleged offending behaviour and he continues to suffer from a Major Depressive Disorder, which is only in partial remission. The mental condition, a Major Depressive Disorder, could be treated in a designated psychiatric facility. ………………….. I suspect Mr Wattie does have a number of very positive personality strengths and attributes and that is a good prognostic indicator. He also appears to be highly motivated to receive appropriate and ongoing medical and psychological treatment. There is some evidence that his Major Depression is responding positively to medication. I note the absence of an Antisocial Personality Disorder. I think this man's prognosis, both from a forensic and a psychiatric perspective, is extremely good. This will be particularly so if his Depressive Disorder can achieve a full remission. 1. Dr Charles Chan is a Consultant Psychiatrist with extensive experience working in correctional centres. In late 2015 Dr Chan took over Mr Wattie's care from Dr Chandrasekara. Dr Chan prepared a report dated 19 July 2016 and gave evidence in the proceedings. 2. Dr Chan's report contained the following extract: I assess Mr Wattie's prognosis as positive. Prior to the charges in 2014 there had been no prior disciplinary charges, or features suggestive of an anti-social personality disorder. Based on the longitudinal history, the assaults would likely be contributed by his depressive symptoms and poor impulsive control at the time. He had been motivated to receive medical treatment and compliant to his medications. Mr Wattie has achieved full remission from his Major Depressive Episode, and I assess he is fit to return to work as a correctional officer and would not pose any significant risk in reoffending. 1. Under cross-examination Dr Chan agreed that it was not common for people with major depression to become aggressive as a consequence of, or as a symptom of, their depression. Dr Chan also agreed that someone who has had more than one episode of major depression has a very high chance of recurrence, in the order of ten to twenty per cent, later revised to twenty to sixty per cent. However, Dr Chan then went on to elaborate on measures that are taken to prevent another depressive episode, such as psycho education and medication. Dr Chan also accepted that alcohol use or abuse might explain the loss of memory of particular incidents that have occurred sometime previously. 2. Dr Chan did not resile from his evidence that, in the case of Mr Wattie, the assaults committed by him in September and December 2014 would likely be contributed by his depressive symptoms and poor impulse control at the time. Case for the respondent 1. Counsel for CSNSW made extensive submissions in support of the decision to dismiss Mr Wattie. 2. It was put that the three assaults on inmates constituted serious misconduct justifying dismissal. It was also put that the decision maker, Mr Wilson, took into consideration all of the material provided to him on behalf of Mr Wattie, including material going to his personal circumstances, the psychological and medical reports and Mr Wattie's lengthy employment and service to CSNSW. It should be noted however, that Mr Wilson did not have the benefit of the evidence of Dr Chan which was placed before the Commission in these proceedings. 3. Reliance was placed on a number of other unfair dismissal cases involving termination of employment for assault. 4. The submission was put that medical evidence before the Commission did not establish that the assaults committed by Mr Wattie were the consequence of his suffering from depression. It was put that there was no contemporaneous independent evidence indicating that Mr Wattie was suffering from any disorder in 2014, or at any time prior to January 2015. 5. In the alternative, it was put that, if the Commission were to accept that Mr Wattie's depression was a causal factor that led to the acts of violence, then, in light of the high risk of recurrence of depression, the risk of such conduct recurring was too significant to consider permitting him to resume employment as a correctional officer. Was the dismissal harsh unreasonable or unjust? 1. On their face, the actions of Mr Wattie in each of the three incidents relied upon constitute misconduct so as to render his dismissal neither unreasonable nor unjust. Assaults on inmates in correctional centres by correctional officers cannot be condoned nor tolerated, even in cases where there is significant provocation. First incident 1. There is no doubt that, in relation to the incident of 13 September 2014, Mr Wattie assaulted the inmate by pushing him down onto the bench seat in the reception cell and by striking or pushing his head. However, I accept that there was significant provocation from the inmate prior to and during this incident. It is clear from the CCTV footage, and from the reports of the police and other officers, that this inmate was being particularly abusive and non-compliant at the time. 2. I accept Mr Wattie's evidence that he initially responded to the inmate raising his right arm even, though this action is not visible on the CCTV footage due to the positioning of Mr Wattie's body. I also accept that the contact made between Mr Wattie's right hand and the inmate's head was an attempt by Mr Wattie to prevent the inmate spitting at him. There is corroborative evidence that this inmate was prone to spitting and he was heard by two other correctional officers to be drawing up phlegm at the time of the assault. 3. Despite this provocation, Mr Wattie accepts that he overreacted at the time. His plea of guilty to the charge of common assault demonstrates this. However, the inmate suffered no injury as a result of this incident. 4. I do not accept that Mr Wattie failed to accurately report his use of force on this occasion. The finding to this effect by Mr Wilson seems to be based on a misinterpretation of the police facts sheet tendered in the local court proceedings. 5. Whilst Mr Wattie's actions on this occasion do constitute misconduct, given the surrounding circumstances, the seriousness of the misconduct in this incident, taken in isolation, is not, in my opinion, sufficient to justify the dismissal of Mr Wattie. Second incident 1. The incident of 19 December 2014 is somewhat baffling. Mr Wattie is seen to strike the inmate to the head but did not recall the incident or what led up to it. 2. Dr Chan, in answer to a question from me, agreed that alcohol abuse could explain the loss of memory of particular incidents that have occurred sometime previously. 3. The assault does not appear to have been particularly forceful and there is no evidence that there was any injury suffered by the inmate. Nevertheless, Mr Wattie pleaded guilty to the charge of common assault arising from this incident. 4. The finding that Mr Wattie failed to report his use of force on this occasion does not add to the seriousness of the misconduct if it is accepted, as I do, that Mr Wattie has no recollection of this incident 5. Again, taken in isolation, the seriousness of the misconduct involved in this incident is not such as to justify the dismissal of Mr Wattie. 6. The fact that no conviction was recorded in the local court in relation to either the first or second charges of common assault suggests that both matters were seen as falling at the lower end of the scale of seriousness. Third incident 1. There is no question that the incident of 29 December 2014 constitutes the most seriousness matter presently before the Commission. However, I do accept that, in relation to this incident, there was significant provocation on the part of the inmate. When the inmate's clothing was thrown in his face, Mr Wattie momentarily lost vision of the inmate and was, understandably, fearful of being assaulted by the inmate who was yet to be strip searched. 2. However, Mr Wattie again overreacted by striking the inmate six times. On this occasion the inmate did sustain some injuries, but of a relatively minor nature. Whilst it is clear that Mr Wattie's actions during this incident constitute misconduct, the remarks of Garling ADCJ in his appeal judgement tend to put the seriousness of this matter into proper perspective. 3. The misconduct involved in this incident, when considered together with the misconduct involved in the previous two incidents, is such as to render the dismissal of Mr Wattie neither unjust nor unreasonable. The question remains, however, as to whether or not, in all the circumstances of this case, the dismissal was nevertheless harsh. 4. On the issue of harshness I am guided by the following passages of the Full Bench decision (Walton VP, Haylen J and Bishop C) in Department of Health v Perihan Kaplan ([2010] NSWIRComm 65): [26] One ground relied upon for this challenge was predicated upon a legal proposition that a dismissal which was based upon conduct by an employee, which constituted a breach of a fundamental and essential term of the contract of employment, "would necessarily not be harsh". No authority was given in support of that proposition except for an authority which was said to demonstrate that, in the contemporary common law of employment, an implied term may be found in every employment contract that the employee owes the employer a duty not to act in a manner likely to destroy or seriously damage the relationship of trust and confidence between them: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2007) 69 NSWLR 198. The appellant's contention would appear to be that a finding of harshness under s 84(1) could not be made in circumstances where an employee had been lawfully dismissed for breach of such a term. It was also suggested that that approach was mandated because the employee's conduct in that context would be a repudiation of the contract. [27] The difficulty with this approach, as opposed to one which would have the nature of an employee's misconduct weighed against mitigating factors to determine, inter alia, whether a dismissal was harsh, is that it stands in the face of the statutory scheme which requires the Commission to consider whether the dismissal was harsh, unreasonable or unjust. There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 at [99] ('Loty'), that the exercise of the Commission's powers in relation to unfair dismissals (now found in Part 6 of Ch 2 of the Act) requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" (Loty at 99). In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". To similar effect, a Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [71] ('Little') stated: The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate "justification" in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act. [28] This conclusion must also follow from the very meaning of the concept of "harshness" within s 84(1). The words "harsh, unreasonable or unjust" in s 84(1) are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at [467] ("Byrne''), per McHugh and Gummow JJ, (applying Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at [28]). The appellant's acceptance that the expression 'harsh' would bear the meaning "disproportionate to the gravity of the misconduct" (see Byrne at [465]), necessarily brings with it the conclusion that a breach of an employment contract or even a repudiation of it will not be determinative of a finding under s 84(1) of the Act as to whether the dismissal was harsh. So, too, does an acceptance (see Byrne at 465) that the personal circumstances of a dismissed employee may be also brought into account. [29] We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows: In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. 1. In the present case there are a number of significant mitigating factors which, in my opinion, must be weighed in the balance against the seriousness of Mr Wattie's misconduct. They are: 1. Mr Wattie's 22 years of unblemished, indeed decorated, service. 2. The extremely negative impact the dismissal has had on Mr Wattie personally, given the difficulty he has had in finding alternative employment. 3. The significant level of provocation involved in two of the three incidents and, to some extent at least, an element of self-defence. 4. The acceptance by Mr Wattie of responsibility for his overreactions during the three incidents as evidenced by his pleas of guilty to the three assault charges. 5. The confluence of personal and work related issues which negatively impacted upon Mr Wattie's mental state prior to and at the time of the three incidents. 6. The medical evidence from Dr Westmore, Dr Chandrasekara and Dr Chan, in particular, Dr Chan's evidence as to the likely link between Mr Wattie's depressive symptoms and poor impulsive control and the assaults. 7. Mr Wattie's genuine contrition and his determination to improve his mental health as demonstrated by his completion of the 18 week anxiety/depression skills program. 8. The positive prognosis for Mr Wattie as evidenced by Dr Chan's assessment that he would not pose any significant risk in reoffending. 1. In relation to the issue of medical evidence being considered as a mitigating circumstance I note the following passage from the decision of the Full Bench in Corrective Services NSW v Danwer ([2013] NSWIRComm 61 (16 July 2013) per Boland J, President, Staff J, Backman J): [57] We have considered whether there are any mitigating factors in relation to the respondent's conduct. The evidence about that is not very clear. On the one hand, there was the evidence of Dr Tony Robinson who had a doctorate in clinical psychology and practised as a clinical psychologist. Dr Robinson stated: There is no evidence that Mr Danwer is suffering a psychosexual disorder (ie exhibitionism). It is my thought that if he was acting in an unusual way, it may be explained more by his hyperthyroidism condition that was undiagnosed at the time. [58] On the other hand, Dr Robinson said in a later report that Mr Danwer 'has a good understanding of how exhibitionism can affect ...its victims." Further, the respondent had undergone a series of sessions of "focussed psychosexual treatment". [59] If there had been reliable medical evidence that the respondent's conduct had been caused or contributed to by mental or physical illness that may have been a factor to be taken into account in mitigation: see Wells and Commissioner of Police [2000] NSWIRComm 157; (2000) 100 IR 106; Bradley Smith v Commissioner of Police (No. 4) [2010] NSWIRComm 14; Fire Brigade Employees' Union of New South Wales (on behalf of Brendan O'Donnell) and Fire & Rescue NSW [2013] NSWIRComm 57. However, there was no medical evidence (a clinical psychologist is not a medical doctor nor a psychiatrist) and even if Dr Robinson's evidence could have been regarded as such, it was inconclusive for the purpose of any consideration about mitigation. [60] We do note the magistrate who convicted Mr Danwer of the offence expressed the opinion at the time that the respondent was not likely to re-offend. However, that opinion was not based on medical evidence. Nor was the observation by Colefax DCJ that the respondent's conduct was aberrational. 1. By contrast to that matter, in the present case there is reliable medical evidence that Mr Wattie's conduct was caused by or contributed to by mental illness that he was suffering at the time of the incidents which led to his dismissal. 2. Weighing all of these mitigating factors against the seriousness of the misconduct, I am of the opinion that the dismissal of Mr Wattie was, in all the circumstances, harsh. Remedy 1. In unfair dismissal proceedings such as these, the primary remedy, consequent upon a finding that a dismissal was harsh, unreasonable or unjust, is reinstatement. It is only where the Commission considers that it would be impracticable to reinstate an applicant that the alternate available remedies are considered. 2. In this matter the only real issue going to impracticability of reinstatement is the concern on the part of CSNSW that Mr Wattie may relapse into depression and reoffend. Against this consideration is the opinion of Dr Westmore that Mr Wattie's "prognosis, both from a forensic and a psychiatric perspective, is extremely good" and Dr Chan's evidence that Mr Wattie "is fit to return to work as a correctional officer and would not pose any significant risk in reoffending". 3. I accept this expert evidence which supports a finding that reinstatement is not impracticable. 4. However, given that the dismissal of Mr Wattie was based on misconduct committed by him which, despite his mental condition at the time, cannot be excused, I decline to order that Mr Wattie be paid any back pay for the period from the time of his dismissal until the date of effect of the order for reinstatement. These proceedings should serve as a very clear warning to Mr Wattie that any future use of force by him, which is outside the relevant CSNSW policies, will almost certainly result in his dismissal. If this were to occur, it is difficult to imagine any circumstances which would warrant the intervention of the Commission a second time. 5. I propose to make the reinstatement order effective from seven days from the date of this decision to allow CSNSW time to make whatever arrangements are necessary to give effect to the order, or to otherwise consider its position in light of this decision. Orders 1. In this matter I make the following orders: 1. Jason Wattie is to be reinstated to the position of Senior Correctional Officer which he held with Corrective Services NSW immediately before his dismissal on 13 May 2016 on the same terms and conditions as applied to his position at that time. 2. Order (1) is to take effect on and from Tuesday 18 October 2016. 3. No order is made for payment to Mr Wattie for the period between the time of his dismissal and 18 October 2016, which period is not to count as service for any purpose. 4. Despite order (3) Mr Wattie's service is to be taken as having not been broken by virtue of his dismissal and the period between then and his reinstatement pursuant to orders (1) and (2). ********** 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: 11 October 2016