Industrial Relations Commission New South Wales Medium Neutral Citation: Collins v Industrial Relations Secretary on behalf of the Department of Justice (Corrective Services NSW) [2017] NSWIRComm 1051 Date of orders: 07 August 2017 Decision date: 07 August 2017 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The applicant is reinstated. No order is made for back pay. Catchwords: UNFAIR DISMISSAL – Correctional Officer – 22 year unblemished career – OIC on hospital escort duty – inmate released from handcuffs and ankle cuffs to take shower – inmate escaped through bathroom window – Critical Incident Review – five allegations of misconduct by applicant – breaches of procedures – false or misleading statement – allegations not all proven – errors of judgement – proven allegations not of sufficient seriousness to warrant dismissal – dismissal harsh unreasonable and unjust – reinstatement not impracticable – reinstatement ordered – no order for back pay Legislation Cited: Crimes (Administration of Sentences) Regulation 2014 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 Pastrycooks, Biscuit Makers & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Franklins Ltd v Webb (1997) 72 IR 257 Perfection Dairies Pty Ltd v Finn (2006) 151 IR 197 Category: Principal judgment Parties: Norman Collins (Applicant) Industrial Relations Secretary on behalf of the Department of Justice (Corrective Services NSW) (Respondent) Representation: Counsel: Mr R Reitano (Applicant) Ms R Graycar (Respondent) Solicitors: Mr M Jaloussis, McNally Jones Staff Lawyers (Applicant) Ms E Keech, Corrective Services NSW (Respondent) File Number(s): 2017/67605 DECISION 1. The applicant, Norman Collins, was, prior to his dismissal, employed as a First Class Correctional Officer at the South Coast Correctional Centre ("SCCC") at Nowra. On 7 October 2016, Ian Farquhar, Director of Custodial Corrections – South Region, Corrective Services NSW ("CSNSW"), wrote to the applicant in relation to allegations that he may have engaged in misconduct. 2. The misconduct allegations arose out of an incident that occurred on 22 August 2016. On that day, the applicant was in the designated Officer in Charge ("OIC") of the 'A' Watch (day shift) at the Shoalhaven District Memorial Hospital. The applicant and two other Correctional Officers, Greg Whalley and Aaron McCormack, were on escort duty guarding an inmate, Harold Brown, who had been transferred from the SCCC to the hospital early that morning for medical treatment after he had claimed to have swallowed razor blades in his cell. 3. The inmate's classification was E1 Maximum Security (Escapee) which meant that he was a high risk of attempting to abscond. He had escaped from custody on a number of previous occasions. 4. Whilst under guard in his hospital room, the inmate was handcuffed to the bed and was wearing ankle cuffs. There were a number of occasions during the 'A' Watch when the handcuffs were removed from the inmate to facilitate his use of the toilet in the en suite facility attached to the hospital room, but on each such occasion the ankle cuffs remained in place and the inmate remained in view of the escorting officers through the open door to the en suite facility. 5. Late on the 'A' Watch, the inmate asked if he could have a shower. At this time the inmate was not handcuffed because he had just been to the toilet and the handcuffs had been removed to facilitate this. The applicant agreed to allow the inmate to have a shower and advised Mr Whalley to remove the ankle cuffs from the inmate. While the inmate was unrestrained in the en suite facility, at around 2.00pm the 'A' watch was relieved by the 'C' Watch (afternoon shift) comprising First Class Correctional Officers John Donnelly, OIC, and Edward Banton as well as Casual Correctional Officer Bradley Abbott. A short time later the inmate escaped by smashing and then climbing out of the window in the en suite facility and absconding. 6. Following this incident, a Critical Incident Review was conducted by Senior Investigation Officer Peter Wallace who produced his report on 1 September 2016. Following consideration of this report by the Professional Standards Committee of CSNSW, Mr Farquhar wrote to the applicant on 7 October 2016 setting out four allegations of misconduct. These were: 1. you failed to keep proper records in the Hospital Escort Daily Log Sheets in contravention of provisions in the Operations Procedures Manual (OPM), Section 6, Escorts 6.4.3.6 and the South Coast Correctional Centre (SCCC) Standard Operating Procedures (SOP) 078 Section 24 Medical Escorts Procedures 5.33; 2. you permitted the handcuffs and ankle cuffs to be removed from inmate Harold BROWN (MIN 311355) to allow him to take a shower in contravention of: i. OPM Section 6 Escorts 6.4.3.1(a) ii. OPM Annexure 6.8 Protocol for Guarding Inmate Patients iii. SCCC SOP 078 Section 24 Medical Escorts Procedures 5.26 iv. SCCC Section 24 General Instructions v. Section 24 Order Number SCCC/Hosp/098/16. 3. during the A watch inmate Harold BROWN (MIN 311355) was not kept under surveillance at all times in contravention of: i. OPM Section 6 Escorts 6.4.2.3 ii. SCCC SOP 078 Section 24 Medical Escorts Procedures 5.24 iii. SCCC Section 24 General Instructions iv. Section 24 Order Number SCCC/Hosp/098/16 4. A proper briefing was not conduct on the shift changeover between yourself, as Officer in Charge (OIC) of the A watch and First Class Correctional Officer John Donnelly, the presumed OIC of the C watch. 1. By letter dated 17 October 2016, the applicant provided the Professional Standards Branch of CSNSW with a written response to the four allegations of misconduct. 2. By letter dated 22 November 2016, Mr Farquhar advised the applicant that he had formed the view that, on 22 August 2016, the applicant had engaged in misconduct with respect to each of the four allegations. The applicant was advised that Mr Farquhar was considering imposing disciplinary action. The most severe penalty that was being considered was termination of employment (with an opportunity to resign). 3. Further, Mr Farquhar determined, based on the applicant's written response to the four misconduct allegations, to advise him of a further allegations of misconduct being that, in his response, the applicant provided false and misleading statements in contravention of clause 251 of the Crimes (Administration of Sentences) Regulation 2014. This regulation provides that a Correctional Officer must not make any statement that the officer knows, or ought reasonably know, is false or misleading in a material particular. The alleged false and misleading statements made by the applicant were that the bathroom door in the hospital room was open and that the applicant kept the inmate in sight at all times. Mr Farquhar stated that the available evidence suggested that the bathroom door was closed and, therefore, the applicant was unable to keep the inmate in sight at all times. 4. On 4 December 2016, the applicant provided a written response in relation to the issue of penalty as well as a response to the further allegation that he had provided false and misleading information, which he refuted claiming that the bathroom door was open and inmate was in sight at all times. 5. By letter dated 15 February 2017, Mr Farquhar advised the applicant that he had finalised his consideration of the matter and had determined that, in all circumstances, it was appropriate that the outcome be termination of the applicant's employment (with an opportunity to resign). 6. On the 3 March 2017, the applicant filed in the Industrial Registry an application for relief in relation to the threat to dismiss him. The applicant did not tender his resignation. As a consequence, by letter dated 10 March 2017, Mr Farquhar advised the applicant that his employment with CSNSW was terminated. 7. The application filed on 3 March 2017, has been treated as an application for relief in relation to the dismissal of the applicant which occurred on 10 March 2017. Background 1. The applicant is 54 years old. He joined CSNSW on 4 July 1994. After attending the Corrective Services Academy he was appointed as an Overseer at the Berrima Correctional Centre. 2. The only "blemish" on an otherwise unblemished record of service occurred early in the applicant's career when he was working at Berrima and was charged with engaging in misconduct over his purchase of some items of used electrical machinery which were to be disposed of by CSNSW. The applicant was fined $500 and transferred from Berrima to the Goulburn Correctional Centre. The applicant successfully appealed to the Government and Related Employees Appeals Tribunal which set aside the $500 fine but lacked jurisdiction to set aside the transfer. He was eventually transferred back to the Berrima Correctional Centre. 3. Apart from that one matter, the applicant has not, during his career with CSNSW, had any other adverse findings made against him. He has never been placed on a Performance Management Plan. 4. While he was at Berrima, the applicant became a First Class Correctional Officer in about 1998/1999. 5. When Berrima Correctional Centre closed in 2011, the applicant transferred to the SCCC. 6. The applicant's dedication to his role as a Correctional Officer has been recognised on a number of occasions, some of which are referred to below: 1. In February 1997, the applicant received a letter of congratulations from the then Assistant Commissioner Operations, Ron Woodham, for the dedication and professional delivery of services from himself and all Staff Family Day committee members. 2. In May 2002, the applicant was awarded a Regional Commander's Commendation for undertaking his duties as an Overseer at Berrima with "professionalism and dedication". 3. In September 2004, the applicant received a letter from the Commander of Women's Facilities and Services commending him for his dedication in raising money on "Bluey Day", a worthwhile community cause. 4. On 27 May 2016, Roy McNair, the Acting General Manager of the SCCC wrote to the applicant extending his gratitude and appreciation for the applicant's assistance and prompt actions regarding a foiled attempted escape from the SCCC. The letter stated, in part: Your quick actions and professionalism was paramount in ensuring the safety of staff and other inmates, as well as the ongoing safety and security of the Correctional Centre at all times during the incident and I commend your actions in this matter. 1. During his career, the applicant had never had an inmate escape under his supervision. 2. In relation to the other five officers who were on escort duty on the 'A' and 'C' Watches on the day in question, they were dealt with as follows: CO Gregory Whalley – key holder (A watch): Fine of $800 and a reprimand. CO Aaron McCormack – armed officer (A watch): Fine of $250 and a reprimand. Note: He appealed and an agreement was reached at conciliation, however, a condition was that the outcome would be kept confidential. FCCO John Donnelly – OIC (C watch): Reduction in classification to CO Y2 for 12 months. FCCO Edward Banton – key holder (C watch): Reduction in classification to CO Y2 for 9 months. CCO Bradley Abbott – armed officer (C watch): Fine of $500 and a reprimand. Relevant procedures, protocols and instructions 1. Below are set out the relevant terms of the procedures, protocols and instructions which were identified by Mr Farquhar in his letter to the applicant of 7 October 2016 as being relevant to the four allegations of misconduct against the applicant. It emerged during the proceedings before the Commission, through the evidence of Mr Farquhar, that SCCC SOP 078 had, as at 22 August 2016, been superseded by SCCC Local Operating Procedure No. 2.055 (SCCC LOP 2.055) which, in any event, was in identical terms so far as the operative parts were concerned, as the preceding SCCC SOP 078. Further, the relevant provisions of SCCC SOP 078 and SCCC LOP 2.055 were in identical terms as the corresponding provisions of OPM Section 6 Escorts. OPM Section 6 Escorts 6.4.2.2. Use of Toilets by Inmate Patients, was not referred to in the letter of 7 October 2016 to the applicant from Mr Farquhar but was raised in these proceedings as having relevance to the issues requiring determination. (i) Corrective Services NSW Operations Procedures Manual (OPM) 6.4 MEDICAL ESCORTS …………………. 6.4.2.2. Use of Toilets by Inmate Patients 1. If an inmate patient has to use the toilet, the area must be thoroughly searched prior to use. Vigilance should be exercised regarding external windows as they not only provide a means of escape, but also represent a hazard to suicidal inmates. 2. Provided the escorting officers have satisfied themselves that the continued charge and supervision of the inmate patient and the security of the hospital will not be jeopardised, the inmate patient should be allowed to use the toilet in private. 3. However, the facility door must not be locked, even if the officer using his/her person as a physical barrier only can prevent this. 4. Should doubt exist as to the security of the area, one officer should remain in the facility with sight of some part of the inmate patient's body (e.g., foot or arm). 5. During an armed escort and when there is need for one officer to supervise the inmate patient in the toilet, the armed officer must remain outside the toilet. 6. Where facilities exist, inmates may be handcuffed to the railings in disabled toilets so they may be afforded maximum privacy. The railing should first be inspected to ensure its sturdiness and other security measures described above must be maintained. 6.4.3. Security and General Conduct on Medical Escorts .............................. 6. At the time of shift changeover, all relevant information should be relayed to officers commencing the new shift. ……………………. 6.4.3.1. Use of restraints for intimate patients 1. Male inmates a) Handcuffs and ankle cuffs are to be used on all B, E2, E1, A, AA and (Extreme High Security) EHS inmates physically capable of an escape on medical/hospital escort. One form of restraint should remain in place at all times. Should medical treatment require both forms of restraint to be removed (e.g. MIR Scans, surgery etc) the OIC of the escort must ensure adequate security measures are in place prior to the removal of the restraints. If such measures cannot be taken, the OIC escort must contact the General Manager or Manager Security for instructions. .............................. 6.4.3.6. Hospital Escort Daily Log Sheet Officers undertaking hospital escort duties are to complete and maintain a Hospital Escort Daily Log Sheet for the duration of their escort duties. If these officers are relieved during the shift, or at the end of the shift, the incoming officers are to complete a new Hospital Escort Daily Log Sheet to acknowledge receipt of firearms, ammunition and equipment. Details of unusual occurrences, visits to the inmate patient and telephone calls are to be recorded in the log. At the conclusion of the escort, the daily log sheets are to be returned to the correctional centre and handed to the Manager of Security or most senior custodial officer in charge, who will ensure that the daily log is placed on the inmate's case management file. (ii) OPM Annexure 6.8 PROTOCOL FOR GUARDING INMATE PATIENTS All health professionals, inmate patients under escort and escorting officers are reminded of the following protocol when correctional officers are on escort duty at any clinical or hospital. ………………… 2.0 Use of Handcuffs 2.1 All A, B and E classification male inmates must be handcuffed unless the governor or deputy governor directs that an inmate should not be handcuffed. …………………. 4.0 Inmate Patient Security …………………. 4.4 Inmate patients are to be allowed use of the toilets in privacy, providing the escorting officers are satisfied that the continued charge and supervision of the inmate patient will not be jeopardised. (iii) South Coast Correctional Centre Local Operating Procedure SCCC LOP 2.055 Section 24 Medical Escort Procedures …………………. 5.24 Use of Toilets by Inmate Patients This section of the LOP is in relevantly identical terms as OPM 6.4.2.2. – see (i) above. …………………. 5.26 Use of restraints for inmate patients 5.26.1 Male inmates This section of the LOP is in relevantly identical terms as OPM 6.4.3.1(a) – see (i) above. ………………….. 5.33 Daily Log Sheet This section of the LOP is in relevantly identical terms as OPM 6.4.3.6. – see (i) above. (iv) SCCC Section 24 General Instructions ……………………… • Toilets will be thoroughly searched prior to entry by the offender and will pay close attention to the toilets that have false ceilings. Officers will remain in sight of some part of the inmate. Restraints will not be removed. All toilets on site possess a lock/unlocking mechanism from the outside. Officers are to inspect the locking mechanism for functionality prior to using the room. (v) Section 24 Order Number SCCC/Hosp/098/16 …………………. Additional conditions attached to Section 24(1) Order No: Inmate must be hand and ankle cuffed Inmate must be treated as high risk at all times Inmate must remain in company of Custodial Officer at all times One officer must be armed Special conditions attached to Section 24(1) Order Ref: ESCORT ASSESSMENT The Critical Incident Review Report 1. The report prepared by Mr Wallace and finalised on 1 September 2016 contained the following: 22. Late on the 'A' Watch Inmate Brown asked if he could take a shower. "Then Inmate Brown asked if he could have a shower so I went into the bathroom area to look around again. I notice that the ceiling was of solid material not like the room which had panels. The walls were solid materials and the window was one small fixed window. I was happy for the inmate a shower in this area. I then informed C/O Whalley to remove the ankle cuffs so inmate Brown could shower." At this time Inmate Brown was not handcuffed because he had just been to the toilet and the handcuffs had been removed to facilitate this. 23. There are a number of exchanges and interactions between Inmate Brown and Officers Collins and Whalley while Inmate Brown is in the en suite facility of Room 11 to have a shower. All officers on the 'A' Watch escort maintain that the door to the en suite facility remained ajar at all times while Inmate Brown was inside. 24. While Inmate Brown is unrestrained in the en suite facility of Room 11 the changeover between the 'A' Watch and the 'C' Watch takes place. 25. The 'C' Watch escort was: 1/C CO John Donnelly – the presumptive OIC of the escort; 1/C CO Edward Banton – nominated restraints key holder; and CCO Bradley Abbott – nominated weapon holder. 26. All officers commencing on the 'C' Watch escort maintain that the door to the en suite facility in Room 11 was closed when they arrived and they could not see Inmate Brown. 27. The briefing provided to the incoming 'C' Watch escort consisted of advice that the Inmate's name was Brown, that he was in the shower, and words to the effect that he had been good. Handcuffs and ankle cuffs were sighted on the hospital bed, keys for same were handed over. A weapon handover was conducted. The Section 24 Order was checked by Officer Banton for currency only. 28. Shortly after the shift change had been completed Inmate Brown opened the door to the en suite facility of Room 11 and spoke to the officers on the 'C' Watch escort, indicating that he would only be a couple of more minutes in the shower. Inmate Brown then closed the door to the en suite facility. Compliance with Policy & Procedure in the Management of Inmate Brown prior to his escape 29. Several issues were disclosed by a review of incident reports, CSNSW documents of record and interviews with personnel engaged on the escort of Inmate Brown. a. No Hospital Escort Daily Log Sheets were completed for the 'B' Watch commencing on 21 August 2016; or the 'A' Watch commenting on 22 August 2016 in contravention of the provisions of: i. the OPM Section 6 Escorts 6.4.3.6.; and ii. SCCC SOP 078 Section 24 Medical Escort Procedures 5.33. b. Hospital Escort Daily Log Sheets for the 'C' Watch (obtained by the A/MOS when collecting the Medical Escorts Procedures Folder for the Escort of Inmate Brown post the escape) were incomplete and compiled post the escape, in contravention of the provisions of: i. the OPM Section 6 Escorts 6.4.3.6.; and ii. SCCC SOP 078 Section 24 Medical Escort Procedures 5.33. c. The handcuffs and ankle cuffs were removed from Inmate Brown by Officers escorting Inmate Brown on the 'A' Watch to facilitate his taking a shower in contravention of i. OPM Section 6 Escorts 6.4.3.1.(a); ii. OPM Annexure 6.8 Protocol for guarding Inmate Patients; iii. SCCC SOP 078 Section 24 Medical Escort Procedures 5.26.; iv. SCCC S24 General Instructions; and v. Section 24 Order Number SCCC/Hosp/098/16. d. Inmate Brown was not kept under surveillance at all times by escorting officers on the 'A' Watch at SDMH on 22 August 2016 while taking a shower in contravention of: i. OPM Section 6 Escorts 6.4.2.3; ii. SCCC SOP 078 Section 24 Medical Escort Procedures 5.24. iii. SCCC S24 General Instructions iv. Section 24 Order Number SCCC/Hosp/098/16. e. No relieving officer was designated as the OIC of the 'C' Watch escort. The role was accepted by 1/C CO Donnelly by virtue of his seniority i.e., years of service. f. No proper briefing was conducted on the shift changeover between Officer Collins, the OIC of the 'A' Watch, and Officer Donnelly, presumptive OIC of the 'C' Watch on 22 August 2016; and Inmate Brown was not cited by anyone on the incoming 'C' Watch during the changeover, in contravention of: i. SCCC SOP 078 Section 24 Medical Escort Procedures 5.25. g. The handcuffs and ankle cuffs were not applied to Inmate Brown at the commencement of the 'C' Watch by Officers escorting Inmate Brown on the 'C' Watch in contravention of: i. OPM Section 6 Escorts 6.4.3.1.(a); ii. OPM Annexure 6.8 Protocol for guarding Inmate Patients; iii. SCCC SOP 078 Section 24 Medical Escort Procedures 5.26.; iv. SCCC S24 General Instructions; and v. Section 24 Order Number SCCC/Hosp/098/16. h. Inmate Brown was not sighted at the shift changeover and/or under surveillance at all times thereafter by escorting officers on the 'C' Watch at SDMH on 22 August 2016 in contravention of: i. OPM Section 6 Escorts 6.4.2.3; ii. SCCC SOP 078 Section 24 Medical Escort Procedures 5.24. iii. SCCC S24 General Instructions iv. Section 24 Order Number SCCC/Hosp/098/16. …………………………… FINDINGS 46. CSNSW policies and procedures relating to medical escorts are clear and ambiguous. The need for strict compliance with same needs to be emphasised. 47. The roles and responsibilities of escorting officers, especially the OIC, need to be confirmed and clarified. 48. This assignment of roles, especially the OIC role needs to be confirmed and clarified on deployment and/or when officers are being called in on overtime. 49. The priorities and protocols to be observed in the event of an escape need to be clarified. 50. The roles and responsibilities of the escorting officers in the event of an escape also need to be confirmed and clarified. 51. The priorities and protocols to be observed in the event of an escape need to be facilitated with equipment, and up to date information, to expedite notification to relevant parties, especially the police. 52. The SDMH Security Review needs to be updated particularly with respect to the vulnerabilities presented by: the various types of accommodation with window access to the outside; and the locking devices on en suite facilities permitting them to be locked from the inside. 53. GM.SCCC Mr Reid has already taken initiatives to address some of the issues identified as a result of the escape of Inmate Brown. RECOMMENDATIONS 54. This report be forwarded for the information of the Assistant Commissioner Custodial Corrections. The case for the applicant 1. In his letter of 17 October 2016 to the Professional Standards Branch, the applicant responded to the four allegations of misconduct. In relation to allegation 1, the applicant claimed as follows: I have been involved in countless escorts at other Gaols as well as South Coast Correctional Centre over the last 22 years this has always been common practise to not keep Running Sheets or have Correct Running Sheets being provided. 1. In response to allegation 2, the applicant stated: My reason for removing the restraints was for my Duty of Care towards the inmate as if this inmate had slipped and fallen in the shower area I was unsure where I stood legally for this inmate to take legal action against myself and or the Department. Before the inmate's cuffs were removed I had checked the bathroom area and deemed it of solid materials including Walls, Ceiling and the Window was of a non-openable fixed glass window. Whilst this inmate was in the shower on the A Watch the door was open and we had sight of this inmate at all times. 1. in response to allegation 3, the applicant stated: During the A Watch on the day concerned the inmate was kept under constant surveillance at all times. This includes the Emergency Room on arrival as well as the X-ray Room where we had Two (2) Officers inside and an Armed Officer outside the door at all times. The inmate was then escorted to the Ward with Two (2) officers on either side of the inmate and the Armed Officer was following behind. When the inmate was placed in a ward room there was Three (3) Officers placed in different locations around the room. When the inmate concerned used the Bathroom the door was left open and we had the inmate in our sight at all times as well as making the inmate talk to us. 1. In response to allegation 4, the applicant stated: When Officer John Donnelly arrived for the C Watch Duty a Hand Over was conducted with myself and Officer Donnelly. Officer John Donnelly was satisfied with this Hand over. After this was conducted I ceased my A Watch Duties and the inmate concerned was still in the Bathroom area with the door ajar. 1. In his letter to Mr Farquhar of 4 December 2016 on the issue of penalty, the applicant conceded that, on 22 August 2016 he made a number of "monumental errors in judgement" and had been "complacent" in his actions. He stated: I accept that I failed to keep proper records in the Hospital Escort Daily Log Sheets. In my defence though, I genuinely was not aware of the requirement to keep a log and I have never in all my years of employment been asked to produce one from a hospital escort. One thing that has become abundantly clear is that I should spend more time reviewing the Operations Procedures Manual to keep abreast of policy and any changes to policy than I have previously. I truly hope that this is an opportunity afforded to me. I fully accept that I authorised the removal of both types of restraint from the inmate but only after having inspected the room which I determined to be solid with the exception of a small fixed window. I genuinely didn't consider escape from the bathroom a possibility. In making this decision I have inadvertently impacted the careers and livelihood of my colleagues. For this I am extremely sorry. It was a serious error in judgement. I felt at the time that I was making a responsible and considered decision. My thoughts at the time were more related to the health and wellbeing of inmate Brown. In hindsight security must always be paramount. In relation to the charge of "provide false and misleading information" relative to the door. I maintain the door remained ajar so that I could keep sight of the inmate at all times. I stand by this statement. I am aware that the door was secured by an item of the inmates clothing at some stage, I can only guess that this occurred during the period of time it took to conduct a hand over or shortly thereafter. I recall shortly before changeover watching the inmate through the open door. I reject that I have at any time deliberately provided false or misleading information; I have at all times given an honest account of my actions and observations on that day. 1. A witness statement which was prepared by the applicant and tendered into evidence in the proceedings contained the following: 20. During the course of the day, whenever Brown wanted to use the bathroom, I would remove the handcuffs, but would leave the ankle restraints in place. While Brown was in the bathroom using the toilet, the door was left open and he was kept under observation at all times… 21. When we moved Brown to his room in the hospital, I carried out an inspection of the bathroom to check for any escape points. I observed that there appeared to be a solid ceiling, as distinct from a ceiling with panels as in the room itself, and a fixed window that did not open. This window was approximately 1800 millimetres off the ground. I considered it to be low risk, as the window appeared to have safety glass and in my opinion was too small for inmate the size of Brown to fit through. Also, it was always my intention to keep Brown under observation whenever he used the bathroom. 22. At some point in the afternoon, Brown asked me if he could have a shower. I agree to his request, however, I told him that he was to be kept under observation at all times. This meant that the door into the bathroom would be open and he would be able to be observed either by me or one of my other officers. 23. Brown did not raise any objection to the door of the bathroom being left open while he was having his shower or using the toilet. I directed Whalley to remove the leg restraints from Brown, as I was concerned that he may slip whilst showering and hurt himself, leaving me personally liable for any claim for damages. I could not afford to face such a liability. 24. As my intention was to have Brown under observation the whole time, I did not consider this direction to constitute a security risk, even though I admit it was contrary to operating procedures. 25. Brown went into the shower and commenced showering and during the course of the shower he came to the door on a couple of occasions to request soap, toothpaste and a toothbrush. On another occasion, he came to the door when he was having problems adjusting the tap so that the water was not too hot. 26. While Brown was having his shower, McCormack was seated at a chair adjacent to the door leading into the bathroom and I went to the bathroom whenever he had any requests. The door into the bathroom was open. I was confident that we had Brown under sufficient observation to deter him from trying to escape. 27. The "C" Watch officers arrived at about 1.40 p.m. to commence their shift at 2.00 p.m. I conducted a hand-over. McCormack, who was carrying the weapon, handover it to Casual Correctional Officer Abbott. Whalley left the room once the "C" Watch officers had arrived. McCormack and I were the last to leave. Brown was in the shower and the door was still open at the time that we finished our shift and left the room. 28. When the hand-over occurred with the officers from the "C" Watch, I provided the designated Officer-in-Charge, First Class Correctional Officer Donnelly (Donnelly), with a briefing on Brown. I informed him that Brown was in the shower unrestrained, that he was in hospital because he had swallowed razor blades and that he had behaved himself whilst we were on roster… 29. I provided Donnelly with all the relevant information I believed he needed to know about Brown, particularly, that he was in the shower and not restrained. I told him the door was open. I showed Donnelly the cuffs that were on the bed and gave him the keys. Donnelly was happy with everything so McCormack and I left. 1. In an incident report prepared by the applicant on 24 August 2016, he stated that when the inmate entered the bathroom the door was left slightly opened so that the officers could see him showering. 2. On the same day, 24 August 2016, the applicant was interviewed by Mr Wallace as part of the Critical Incident Review. A transcript extract of that interview was annexed to Mr Wallace's report which was provided to Mr Farquhar and which became the basis of the misconduct charges which were laid against the applicant. In that transcript extract, the applicant is recorded as saying that the bathroom door was "left slightly ajar… and he was kept in view". Later in the interview, when the applicant was being questioned about the period after the 'C' Watch officers had arrived, the following exchange is recorded as having occurred: Q And at this stage the door to the shower is still ajar A I can't answer that. 1. However, the sound recording of the interview between Mr Wallace and the applicant was transcribed by Toni Taylor, a qualified provider of transcription services, as were the interview recordings between Mr Wallace and the other five officers who were involved in the incident. According to the transcript which was annexed to Ms Taylor's witness statement, this exchange between Mr Wallace and the applicant was in the following terms: Q OK. And, and, and at this stage the door to the shower is still ajar A That's something I can't be 100 percent. 1. No explanation was provided for the discrepancies between the two transcripts of the interview between Mr Wallace and the applicant. 2. The applicant was cross-examined about this aspect of his interview with Mr Wallace. The following exchange occurred: Q. Okay. Now, you say that you're very sure that the door was ajar the whole time or open. That's what you say to the Commission, isn't it? A. I am more than sure the door was open the whole time I was there. Q. Because-- A. I wouldn't say "very sure". I'll guarantee that it was. Q. You guarantee it was? A. Whilst I was in that room, that bathroom door was open or ajar, whichever we want to call it. I called it ajar in my report. Q. Yeah, well, when you were interviewed by the officers, do you remember telling them you couldn't be a hundred per cent sure? A. I do recall that. Q. Well, which is correct? You told them you couldn't be a hundred per cent sure. You're now saying that you're absolutely sure. A. I've lived this for ten months. Okay? And a lot of it has gone back over my mind. I can guarantee that door was a hundred per cent open. Okay, I - when I was interviewed I didn't answer that to that I was a hundred per cent sure. 1. In an incident report prepared by Mr McCormack on 24 August 2016, he stated: Throughout the time BROWN was having a shower, the door was kept ajar. BROWN often came to the door to ask if he could have a tooth brush and some toothpaste stating that he needed to brush three times a day because of mouth ulcers. He also came to the door asking for help with the taps so he could get hot water. Mr Collins assisted him with the taps and continued to check on BROWN. During this time I was seated close to the door with the firearm. I was instructed by Mr Collins to keep my distance from the inmate. 1. In his interview with Mr Wallace on 24 August 2016, Mr McCormack confirmed that the door to the shower was "ajar". 2. Mr Whalley also stated in his incident report, which he prepared on 24 August 2016, that the door to the bathroom was "ajar" and he confirmed this in his interview with Mr Wallace on the same day. 3. Counsel for the applicant conceded that his client had admitted to some "breaches" of relevant procedures, especially those concerning keeping the inmate ankle and handcuffed at all times and failing to keep proper records. The applicant frankly admitted that he had made a number of "monumental errors in judgement". However, it was submitted that his other alleged conduct "simply does not have any quality of intention or recklessness. It was not wilful in any sense. The conduct did not involve egregious behaviour involving criminality or dishonesty. The conduct, in fact, had all the hallmarks of a mistake albeit a serious one with serious consequences. The conduct could not on any view be regarded as serious and wilful misconduct justifying summary termination as it relevantly lacked any wilfulness." 4. It was put on behalf of the applicant, that the punishment of dismissal was disproportionate to the conduct of the applicant, involving, as it did the, making of a mistake or a serious error of judgement. 5. It was also put that "there is no sensible basis for singling Mr Collins out for special treatment amongst the six officers involved and certainly there is no sound basis for treating him differently from Mr Donnelly who was the senior correctional officer on duty (cf. Mr Collins who was not on duty) at the time of the escape". 6. It was submitted that the report of Mr Wallace recognised that there were "omissions of Corrective Services that contributed to what happened on the day - the failure to provide an escort daily log sheet and the failure to train Mr Collins in the process of briefing and incoming shift on handover". 7. Lastly, it was submitted that there is nothing impracticable about reinstatement. The case for CSNSW 1. In his witness statement, Mr Farquhar stated as follows: 40. In making my determination of the misconduct outcome to be imposed on FCCO Collins for the findings of misconduct, I assessed all of the relevant considerations, including the gravity of the incident, the admissions made by FCCO Collins in his responses to the allegations and to the proposed penalty, the seriousness of his misconduct, his length of service as an employee of CSNSW, his level of experience in conducting escorts, any potential hardship that may accrue to him and the cost and reputational damage to CSNSW. I also considered the conduct expected of a FCCO in the performance of his or her duties, particularly in the performance of duties as the Officer in Charge of a medical escort. I was satisfied that FCCO Collins had not provided a sufficient reason as to why he should not be subject to the outcome that had been proposed. 41. I considered that FCCO Collins' actions demonstrated an unacceptable disregard for CSNSW escort procedures and the requirements of the section 24 order that applied to the escort of inmate Brown. I believed that FCCO Collins' had failed to fulfil his duty of ensuring the security of the medical escort of inmate Brown. I considered the security and safety risks created by FCCO Collins' misconduct and the costs and safety concerns which arose in connection with his misconduct, in relation to CSNSW, the NSW Police, inmate Brown and the public. 1. In response to the applicant's claim that he had not received refresher training in escort procedures, Mr Farquhar noted that the applicant is a highly experienced officer with some 20 years' experience who, by his own admission, had undertaken many hospital escorts as both the OIC and as an escorting officer. Mr Farquhar also noted that the security requirements of this particular escort were clearly detailed in the Section 24 Order, which were that "the inmate was to be restrained at all times and be kept under constant observation". I note at this point that the Section 24 Order does not stipulate that the inmate was to be "restrained at all times". The additional conditions attached to the Section 24 Order are as set out at paragraph 22(v) above. 2. Mr Farquhar's witness statement then continued as follows: 44. In relation to paragraphs 20 to 24 of the statement of Mr Collins, he claims that the removal of restraints was due to concerns that the inmate may slip leaving Mr Collins liable for any injury and that it was his intention to have inmate Brown observed. I do not accept this as reasonable in the circumstances. Inmate Brown had a history of escapes from custody clearly indicated by his classification of E1. Additionally, the usual staff numbers deployed on a hospital escort is 2, on this occasion 3 staff were deployed providing another clear indication that inmate Brown was a security risk. Mr Collins admits that his decision was in breach of the security requirement detailed in the section 24 order and should the issue of personal liability have been of such concern, Mr Collins could easily have sought advice from a senior officer prior to breaching those conditions. Furthermore, whilst it may have been his intention to have inmate Brown observed, subsequent events clearly demonstrate that he did not follow through with that intention. 45. I acknowledge that Mr Collins had an unblemished disciplinary record of employment with CSNSW until I made the findings of misconduct that are the subject of the present proceedings. 46. Having had the benefit of reading Mr Collins' statement, I would not change my decision as to the appropriate outcome for his misconduct. 47. I consider that Mr Collins was the prime mover in the escape of inmate Brown. I consider that his actions were the most important factors that assisted inmate Brown to successfully escape from custody. 48. Inmate Brown's escape resulted in an unacceptable risk to the safety of the community. His escape had the potential to cause reputational damage to CSNSW as the incident was reported widely in the media and was a significant event in the Shoalhaven area. 49. A successful escape from custody by an inmate who is classified E1 Maximum Security (Escapee) is extremely rare. The reason for that is the strict security measures that are required to be implemented for all E1 classification inmates. Maximum security inmates (including inmate Brown) usually only have an opportunity to escape during an escort conducted outside of the correctional centre, such as during a medical escort to a hospital. For that reason, correctional officers are expected to be especially vigilant when conducting medical escorts, and to ensure that they fully comply with the medical escort security procedures and the level of supervision that is required pursuant to that inmate's classification. 1. During cross-examination, Mr Farquhar was shown OPM Section 6 Escorts 6.4.2.2. Use of Toilets by Inmate Patients. The following exchange occurred: Q. You see there there's the procedure. I think you've probably read it in the other one that I just showed you? A. Mmm. Q. Use of toilets by inmates? A. Yes. Q. And that's the procedure that you say you would expect to be applied if an inmate who was under a transfer that said was to mean or was understood to mean should be handcuffed-- A. Yeah, that's correct. Q. --and ankle cuffed at all times? A. Yes. Q. That's the procedure that a correctional officer, like Mr Collins in this case, should follow? A. Correct. Q. And I don't want to put too fine a point on it, sir, but it would be absurd to say that there was no procedure that allowed people to go to the toilet with dignity when they're being transferred? A. I would agree, yeah. You must respect the dignity. Q. Yeah. A. Yeah. Q. And so this procedure tries to balance the two considerations? A. Yes. Q. And people like Collins are expected to apply this procedure? A. Correct. Q. The second matter I wanted to ask you about that relates to procedures is - I've read this and I'm sure you're aware of it. Is there anything in the procedures that tells you what to do if an inmate wants to have a shower? A. Not - I'll be honest with you, no, I can't recall the - anything specific for a shower. Q. The procedures don't deal with it? A. Not that I'm aware of. Q. Does that mean that an inmate should be prohibited from having a shower? A. No, it doesn't. Q. No. What procedures would a person, say, in Mr Collins' position apply if an inmate said, "Excuse me, sir. I'd like to have a shower," and assuming that it was bona fide, the person had been there for some time and the like? A. Well, you would assume that they'd use those type of procedures or the ones that deals with medical treatment. Q. Right, but I don't find one - I mean, I'm not being critical in this respect. I don't find one headed "use of showers by inmate patients"? A. No. Q. But you'd consider it would be reasonable in all the circumstances to use some sort of modification of what I just showed you? A. That, or - yeah, that or the medical treatment, which I think is fairly similar. 1. On the question of whether or not the bathroom door was closed or ajar during the period when the 'A' Watch officers were responsible for the custody of Inmate Brown, Mr Farquhar gave the following evidence: Q. Was it you who made the decision that Mr Collins had made a false and misleading statement? A. Yes, correct. Q. Could you tell me on what basis you made that decision? A. His statement that the door was open, when there were conflicting statements to say the door was closed. Q. Right. So but when you say there were conflicting statements, let's just talk about the conflict for a moment. Do you agree with this. Mr Collins, Mr McCormack and Mr Whalley all said that the door was open? A. Yeah, that's correct. The door was also tied so they couldn't enter it. Q. Sorry, can you just deal with my question? You said "conflicting evidence"? A. Well, some said it was open, some said it wasn't open. Q. Three said it was open and three said it was wasn't open? A. That's correct. Q. How did you decide who was right? A. Well, on the basis that the door was - had clothing tied to it and they couldn't get in. Q. Yes, but you're aware, aren't you, and perhaps you've forgotten, you're aware that the evidence conducted in the investigation conducted by Mr Wallace was that while the inmate was in there and while C watch were on duty, the inmate closed the door? A. Okay, all right, well-- Q. And they all saw that? A. Mmm. Q. Do you recall that? A. Not off the top of my head but, yeah, you're probably right, looking at - yeah. Q. So now let's go back to why you believed the three people who watched the inmate lock the door and not the other people, in particular Mr Collins-- A. I'll go back to what my assumption was. It was closed. My view was it was closed. Q. What led you to form that view? A. Just on what I'd read. Q. What did you read that-- A. I read the investigation report, statements from - well, the incident reports when it was first occurred. Q. Yes? A. Yeah. Q. What was it that you read that led you to the view that the people on A watch, that is Whalley, McCormack and Collins, were not telling the truth? A. The fact that a bloke was able to get out of a window-- Q. Yes? A. --secure the door so no one could get in, made me believe that wasn't the truth. And later: Q. The people on C watch, that is - I better name them. Donnelly, Banton and Abbott were there when he pulled the door closed and said, "I won't be long," and he closed the door, and it was after that that he escaped. Correct? A. Yes. Q. Right. So what is it in that that suggests that Mr Collins was lying about whether the door was opened or closed? A. My view was that he wasn't telling the truth. That was my view. Q. I'm sorry? A. That was my view. Q. Yeah, but-- A. Of reading what was there, I didn't believe he was telling the truth. Q. Right, but why? What was it that led you to that conclusion? A. Just on the balance of what I'd read. The balance of what I'd read led me to believe he wasn't telling the truth. Q. What in particular did you read? What made you form the view that he-- A. I don't recall exactly what I read-- Q. It was irrational, wasn't it? Because the people on C watch were the people who - under whose watch the inmate escaped. Correct? A. Yeah, but where someone is to look out the door then close it, in my view it could've been closed and opened when he came out. Q. It could've been closed and opened or it could've been opened and closed? A. Yeah, either which way. Q. The question is why did you form the view that it was closed and closed? A. That was just my view. That was my opinion. Q. And there was no rational basis for that, was there? A. On the balance of what I read, well, on the balance of my views it was. 1. In relation to the allegation that the applicant had failed to keep proper records in the Hospital Escort Daily Log Sheets, Mr Farquhar gave the following evidence: Q. All right. Can I just ask you did the department provide in its little kit - I can't remember what it's called. Escort package? A. Mmm. Q. Did the department provide a form that was to be completed as the log that was conducted during hospital escorts? A. To my understanding, it was. Q. Is that referred to somewhere in your statement? A. I'm not sure. I don't recall. Q. Can I suggest to you that no such form was provided? A. That's part of the package that should've gone with him. Q. So if Mr Collins didn't get such a form or that as part of his package, is that indicative that it wasn't provided as part of the package generally? A. If it wasn't there? Q. Yeah? A. Well, to my understanding it was there. Q. Right, well, can you show me where it is? Because I can't find it? A. No, I couldn't. Q. Is it annexed to your statement? A. Sorry? Q. Is it annexed to your statement? A. To my statement? No. Q. No. It doesn't exist, does it? A. I don't know. To my understanding, it was. Q. Did the department provide a form that was to be completed as the log that was conducted during hospital escorts? A. To my understanding, it was. Q. Is that referred to somewhere in your statement? A. I'm not sure. I don't recall. Q. Can I suggest to you that no such form was provided? A. That's part of the package that should've gone with him. Q. So if Mr Collins didn't get such a form or that as part of his package, is that indicative that it wasn't provided as part of the package generally? A. If it wasn't there? Q. Yeah? A. Well, to my understanding it was there. Q. Right, well, can you show me where it is? Because I can't find it? A. No, I couldn't. Q. Is it annexed to your statement? A. Sorry? Q. Is it annexed to your statement? A. To my statement? No. Q. No. It doesn't exist, does it? A. I don't know. To my understanding, it was. 1. Further, on the issue of the appropriate procedures to be adopted in a situation where an inmate patient had made a request to have a shower, Mr Farquhar gave the following evidence: Q. Could I ask you did you consider as a result of your review of the material whether or not the relevant procedures and protocols should be changed to deal with the issue of inmates requesting to have showers whilst they're on an escort? A. No, I didn't consider that at the time, no. Q. Is that something that you think needs to be done? A. To be honest with you, yeah, I do. Q. You do? A. Yeah, after this, yeah. Q. I'm glad you're being honest with me under oath. A. Yeah. Q. That is something that you think needs to be clarified? A. Yes, I think we do need to have a look at that. Q. Do you agree in this case, putting aside - I think you told me this before we adjourned. I just want to clarify it. If we modify the toilet procedure, if I can call it that, that you're familiar with, would roughly the approach be the same as that? A. It'd be surrounding those - yeah, there doesn't need to be too much variation. Q. Yeah. A. A bit more clarity perhaps. Q. Yeah. Would the issue of ankle - people being ankle cuffed while having showers be something that would need to be considered? That is, the appropriateness or desirability of it or safety of it? A. I really don't know at this stage, no. Q. You couldn't-- A. No. Q. Okay, I understand that. Could I just focus attention directly to the circumstances here as you understand them. You're aware that Mr Collins took the decision to take the handcuffs or to remove the handcuffs and the ankle cuffs so that the inmate could have a shower. Correct? A. That was in his - one of his replies, I think, yes. Q. Yeah, yeah, he said that, yeah? A. Yeah. Q. You're aware that happened? A. Yeah. Q. And I just want you to put to one side two issues. I want you to assume that the window and the ceiling in the room were in fact secure, for the purpose of the next question I'm going to ask you. That is, I want you to assume that Mr Collins' assessment of the bathroom was correct? A. Mmm. Q. And secondly, I want you to assume that the door to the room is wide open? A. Mmm. Q. And thirdly, I want you to assume that there's an officer stationed somewhere outside the door of the bathroom? A. Yes, yeah. Q. Do you say that that would have been an appropriate way to proceed on this occasion to allow the inmate to have a shower? A. I think if there was an officer directly at the door that could hear and preferably be able to see at least part of the body. Q. Yes, well, I've left the door wide open in my-- A. Yeah, but I mean I haven't seen the bathroom in question. Q. Yeah? A. Nor were there any photographs. Q. Yeah? A. So I don't know how large the bathroom was. Q. Yeah? A. So you'd need to be able to position yourself so you could see at least part of the body, whether that be the head, the leg, whatever. Q. But had those three things happened on this occasion, you would have no cause for complaint? A. If that person could - yeah, under those conditions, yes. Q. And you wouldn't see that as any breach of any relevant procedural protocol? A. No. 1. Alexander Reid, Governor of the SCCC, was also called as a witness for CSNSW. Mr Reid gave the following evidence in his witness statement: 15. Section 6 of the Operations Procedures Manual deals with procedures relating to escorts generally. In Section 6, the purpose of the standard operating procedures indicates that escorting inmates requires strict adherence by escorting officers to procedures in order to maintain the security, discipline, welfare and safety of these inmates. 16. Section 6.4 of the Operations Procedures Manual deals specifically with the procedures to be adhered to in respect to medical escorts. 17. It is expressly stated that the primary responsibility of the escorting officers is to provide adequate security and supervision at a level appropriate to the circumstances pertaining to the inmate. Furthermore, it stipulates that escorting officers are to ensure that they are familiar with the Protocol for Guarding Inmate Patients as well as the Handcuffing of Inmate Patients sections of the manual. 18. The seriousness with which Corrective Services NSW considers this function is illustrated by the fact that in respect to the escorting of E1 security classification inmates there is to be three escorting officers at all times. Furthermore, provision is made for armed medical escorts when escorting male inmates designated as E1 classification. 19. It is also relevant that the attention of officers is specifically drawn to the enhanced risk of escaped by inmates whilst on medical escort. In section 6.4.2 of the manual, the policy alerts officers to the need to be alert and vigilant at all times during medical escorts and to be mindful that escapes have been organised with the assistance from members of the public. Furthermore, guidance is provided that supervision should be intensified during hospital active periods when, potentially, the risk of escape is greater. In this case the risk of escape was clearly greater as previous escape details were listed on the Escort Assessment form. These warnings appear to have been particularly relevant to the escape by inmate Harold Milton Brown (MIN: 311355) as his cell mate subsequently reported that inmate Brown had told him that he was going to escape because he couldn't handle it anymore… 20. The policy dealing with escorts in Section 6 of the manual also deals quite clearly with how particular situations ought to be dealt with in the course of escorting an inmate whilst in the hospital. This includes dealing with situations regarding the use of toilets by inmate patients and the use of restraints on inmate patients. 1. Under cross-examination, Mr Reid gave the following evidence: Q. Similarly, the policy, and I asked Mr Farquhar some questions about this, so I don't really want to go through it again with you, but the policy doesn't envisage the prospect that someone might want to or need to have a shower while they're in hospital, does it? A. No. Q. It doesn't specifically deal with showers? A. No. ……………………… Q. Yeah, but what I've put to you is that if the senior officer thought that the request to have a shower was appropriate and legitimate and determined to do that, that is, to allow the person to have a shower, something like the procedure that applies in respect of going to the toilet would be what he should apply. Correct? A. Possibly, yes. Q. Possibly? You're not sure? A. No. Q. It would be up to the senior officer to decide? A. And if the senior officer wasn't sure, they could make further reference and ring the manager of security. Q. Yeah, but if the senior officer, rightly or wrongly, took it upon himself and thought he was making the right decision, rather than ringing the manager of security, that would be something within the scope of his authority? A. Yes. 1. Mr Reid was questioned about the responsibility that the OIC of the 'C' Watch, Mr Donnelly, bore for the escape of Inmate Brown. He gave the following evidence. Q. So you don't know, for example, what Mr Donnelly says in respect of his state of knowledge as to whether whilst the inmate was in the bathroom he had ankle or handcuff restraints on. You just don't know about that? A. In Mr Donnelly's report to me, yes, but not to the investigation's report. Q. In his report to you did he tell you that he knew that the inmate was in the bathroom unrestrained or something like that? A. I think from memory in one of the reports, I'm not sure with Mr Donnelly's, they make mention of the handcuffs and restraints on the bed. Q. Yes, and so effectively you're aware that he was aware that the inmate was in the bathroom unrestrained? A. Yes. Q. On his watch? A. Yes. Q. And were you aware that on his watch, whether it was open or closed beforehand, don't worry about it, but on his watch the door to the bathroom was closed by the inmate. Were you aware of that? A. Through the investigation. Q. Yeah, yeah, yeah? A. Yes. Q. There's no material difference between - sorry, I withdraw that. There probably is one material difference between Mr Donnelly and Mr Collins' situation and that is that the inmate escaped on Mr Donnelly's watch but, on what you know, there's no material difference between what the two did. Correct? A. Correct. 1. Also tendered into evidence was a witness statement prepared by Mr Wallace, to which his Critical Incident Review report was exhibited. Mr Wallace was not required for cross-examination. 2. Included in the Critical Incident Review report were extracts from records of interview with the 'C' Watch officers. On the question of whether or not the door to the bathroom was open or closed, those officers responded to Mr Wallace as follows: Mr Donnelly Q. Who was in the room when you got there? A. Correctional Officer Norm Collins, Greg Whalley and Aaron McCormack. Q. Where was inmate Brown? A. He was in the shower. Q. Was the shower door shut? A. Yes it was. …………………… Q. At that particular point in time what were your thoughts in terms of his restraint and positioning? A. Well I thought being an E classification inmate he should be restrained he required to be restrained at all times, unless he's undergoing a procedure. I noticed, and… being in the shower I noticed the door was closed but it wasn't locked. …………………….. … so he opens the door, the inmate, he said, "Chief, I'll be about another minute or two minutes and I'll be finished." I said "Yeah Okay, no worries." I'm thinking I'd better get these restraints on, will I do it while he's in the shower or will I wait till he comes out, was an error in my judgement. ……………………… Q. You said the door shut when you came in? A. Yes. Q. He popped his head out a short time later? A. Yes. Q. And you were aware he was unrestrained at that time when he stuck his head out. A. Yes. Mr Banton Q. Who was to be on the C Watch escort with you? A. Officer Donnelly and also Officer Abbott turned up at the same time as I did… He came in at the same time. We arrived at the same time. Q. Where was Inmate Brown at that time? A. In the shower. Q. Was the shower room locked. A. No. It was closed. The door was closed but not locked. …………………… A. With the positioning of my chair I could not see his person at all but the door did become ajar at one stage and as per my statement, my incident report, he said something along the lines of, "I'll only be a minute Chief, I've nearly finished, I'll only be a minute Chief, or a minute or two Chief". Something along them lines. Q. Did he close the door? A. At that stage he closed the door. Mr Abbott Q. When you arrived… where was Inmate Brown? A. The bed's empty, shower's running, door's closed… Words to the effect that he's in there, he's been in there a while… ……………………. A. .… Mr Brown stuck his head out, "be a couple more minutes." Someone said "okay", possibly Mr Donnelly, "no worries", or words to that effect. The door was shut again… 1. In its written Outline of Contentions, CSNSW contended as follows: 10. The SCCC Standard Operating Procedures required escorting officers who were assigned to the duty of escorting inmates to hospital to strictly adhere to procedures in order to maintain the security, discipline, welfare and safety of the inmates. 11. The s. 24 Order for Inmate Brown, which recorded his security rating as E1 Maximum Security (Escapee) was subject of four conditions: (i) Inmate must be hand and ankle cuffed; (ii) Inmate must be treated as high risk at all times; (iii) Inmate must remain in company of Custodial Officer at all times; and (iv) One officer must be armed. 12. In the early morning of 22 August 2016 (about 5.30 am) the Applicant together with two other Correctional Officers relieved the night shift escort team (the Applicant being designated as the Officer in Charge of the day shift team). 13. Towards the end of this shift, about 1.45 pm, the Applicant authorised, contrary to standard instructions and the condition attaching to the s. 24 Order, Inmate Brown's hands to be uncuffed so he could use the toilet in the ensuite bathroom adjoining the hospital bedroom. 14. Upon finishing in the toilet, Inmate Brown (whose hands were still uncuffed) asked the Applicant if he could take a shower in the ensuite bathroom. 15. The Applicant agreed to this request and directed one of the other Correctional Officers in the escort team to remove the ankle cuffs and permitted Inmate Brown to return to the ensuite by himself free from the physical restraints which ought to have been retained at all material times. 16. An issue arises as to whether the Applicant had breached the condition that Inmate Brown be under surveillance at all times. On the balance of probabilities, the evidence will support a finding that he failed to observe this requirement. 17. When the afternoon shift of three Correctional Officers arrived to relieve the Applicant and his team, Inmate Brown was still in the ensuite without restraints in breach of the s. 24 Order. 18. The incoming Officer in Charge did not object to this as he mistakenly believed that Inmate Brown was still subject to handcuff restraints and, given that there was a handover of a firearm in place, it was felt safer for Inmate Brown to be momentarily in the other room. 19. Shortly after the Applicant's departure, Inmate Brown made good his escape by utilising clothing to tie the ensuite bathroom door closed from the inside and escaping through a fixed glass external window at ground level which he smashed. 1. In its further written Outline of Submissions, CSNSW submitted: 26. The escort assessment information… included the history of Brown's successful escapes and escape attempts… It is thus apparent that only one of the four additional conditions, specific to inmate Brown, set out on the order, was complied with, viz, that one officer must be armed. Instead, under the command of FCCO Collins: 26.1 Contrary to special condition 1, Brown's handcuffs were removed when he went to the toilet, and his ankle cuffs were subsequently also removed when he showered, with the consent of Mr Collins; 26.2 The fact that Brown was permitted to take a shower, and have all his restraints removed, is itself an indication that he was not "treated as high risk at all times"; 26.3 Even given the conflicting evidence about the state of the door (whether it was closed or if ajar, how visible was Brown through it), the Respondent submits that the Commission will be comfortably satisfied that the inmate did not "remain in the company of Custodial Officer at all times" when he first used the toilet, and secondly, when he took a shower with no restraints on him and out of (clear) sight of the custodial officer(s). 1. CSNSW submitted that the dismissal of the applicant was not harsh, unreasonable or unjust. 2. CSNSW rejected the submissions put on behalf of the applicant going to the comparability of the punishment imposed upon the other officers involved in this incident when compared to the dismissal of the applicant. Counsel for CSNSW submitted as follows: But the really critical point is that Collins gave the order to remove all the restraints. Donnelly certainly erred by allowing that situation to continue, but there's nothing to suggest that he would have made the same error, or an error of the same magnitude. It was Collins' action which precipitated the incident. Was the dismissal of the applicant harsh, unreasonable or unjust? 1. No issue of procedural fairness arises in this case. 2. I deal in order below with each of the allegations of misconduct against the applicant. In doing so, I note that CSNSW bears the onus of proving these allegations of misconduct by the applicant (Pastrycooks, Biscuit Makers & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 83; Franklins Ltd v Webb (1997) 72 IR 257 at 261 and Perfection Dairies Pty Ltd v Finn (2006) 151 IR 197 at [73]). 3. The standard of proof is the balance of probabilities as framed by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, where his Honour stated: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Allegation 1 – failure to complete the log sheet 1. With respect to allegation 1, the applicant accepted that he failed to keep proper records in the Hospital Escort Daily Log Sheet but claimed that it has not been the practice over his 22 years of experience to maintain running sheets. There is no evidence that the applicant, at the commencement of 'A' Watch on 22 August 2016 at the Shoalhaven District Memorial Hospital, was provided with a new Hospital Escort Daily Log Sheet as is contemplated by OPM Section 6, Escorts 6.4.3.6. 2. In his witness statement, the applicant stated: 33. The one thing that is not contained in the Section 24 folder is a Hospital Escort Daily Log Sheet. In fact, in the 22 years that I worked as a Correctional Officer, I had never been issued with such a sheet by CSNSW to complete. However, I have completed a log sheet of my own on a piece of paper and handed that over to the incoming shift, but this was not on any printed form. I had not been trained in how to maintain such a log sheet or what should go into it. I had never been directed or told to complete such a log sheet. 1. Mr Farquhar was cross-examined on this issue (see paragraph 48 above). He was unsure as to whether or not a Hospital Escort Daily Log Sheet was provided to officers in the escort package which contained other relevant documentation pertaining to the inmate. 2. In the witness statement of Mr Reid, he responded to the evidence of the applicant on this issue in the following terms: 39. I refer to paragraph 33 of the statement of Mr Collins which again deals with the matter of the hospital escort daily log sheets. I note Mr Collins acknowledges that he has in the past completed a log sheet of his own on a piece of paper, which would have been quite sufficient to meet the requirements of the relevant procedures, and handed that over to the incoming shift. I do not understand what training would be required to undertake such simple tasks but do note that under the local operating procedures there was a requirement to complete a new log sheet to acknowledge specifically receipt of firearms, ammunition and equipment. 1. I observe, at this point, that it is an entirely unsatisfactory state of affairs where a Correctional Officer can be disciplined for failing to complete what is clearly described in the relevant procedure as an official document, namely, the Hospital Escort Daily Log Sheet, when no such document is provided to that officer, amongst the various other documents, such as the Section 24 Order, which are provided at the commencement of the shift. To rely on an officer to "complete a log sheet of his own on a piece of paper" and then to discipline that officer for failing to do so, is inherently unfair. 2. Mr Farquhar accepted, during re-examination, that the applicant's failure to maintain the log was not amongst issues that he was considering when he determined the penalty of dismissal. 3. To the extent that allegation 1 has been made out, I find that the seriousness of the misconduct involved is minor and would certainly not, of itself, have warranted the dismissal of the applicant. Allegation 2 – removal of the restraints to allow the inmate to take a shower 1. There was some confusion in the case presented by CSNSW on whether or not it was permissible for the inmate's restraints to be removed, unless this was required for the purpose of carrying out a medical procedure. 2. The relevant notation on the Section 24 Order is "Inmate must be hand and ankle cuffed". The words "at all times" do not appear at that point in the document. However, the next notation on the Section 24 Order is "Inmate must be treated as high risk at all times". Despite this, the applicant was cross-examined as follows: Q. The directive in the section 24, hand and ankle cuffed at all time? A. In the 24 or in the procedures? Q. No, in the 24? A. In the 24. Q. Yes? A. Yes. Q. Okay, and another part of the 24 was - so it's hand and ankle cuffed, treated as high risk at all times, remain in company of a custodial officer at all times. So you considered that you could keep him remaining in the company by being observed by some but not all of the officers in the bathroom? A. Yes. Q. That's correct? Okay. COMMISSIONER: Ms Graycar, I thought you put to the witness earlier that the requirement that he must be hand and ankle cuffed was at all times. Where do I find that in the order? GRAYCAR: It doesn't say "at all times". It's obviously intended to be because it's just an additional condition and there's no indication that they can be taken off. If you look at the second item, by inference from the second and third items that are ticked it must be at all times because there's an option for ankle cuffs to be removed with permission from the general manager that isn't ticked, and there's an option for the inmate just to be handcuffed that isn't ticked. So given the combination of hand and ankle cuffed and treated as high risk at all times, you would assume that there is no option— COMMISSIONER: So you say that's inferred, do you? GRAYCAR: I think that's right. 1. OPM Section 6 Escorts 6.4.3.1(a) makes it clear that handcuffs and ankle cuffs are to be used on E1 inmates, such as Inmate Brown, and states that one form of restraint should remain in place at all times. However, the procedure contemplates the removal of both forms of restraint should that be required for medical treatment such as MRI scans, surgery and the like. In such a case, the OIC of the escort must ensure that adequate security measures are in place prior to the removal of the restraints or, if such measures cannot be taken, the OIC must contact the General Manager or Manager of Security for instructions. It is not suggested that this procedure was applicable to the situation which led to the disciplinary action taken against the applicant and which ultimately resulted in his dismissal. 2. OPM Section 6 Escorts 6.4.2.2 sets out the procedure to be followed when an inmate patient requires to use the toilet. That procedure does not, in terms, contemplate the removal of handcuffs or ankle cuffs. However, the procedure does provide that, where facilities exist, inmates may be handcuffed to the railing in disabled toilets so that they may be afforded maximum privacy. 3. Although not expressly dealt with in the procedure, it is clear that situations will arise during hospital escorts where an inmate, who is handcuffed and ankle cuffed, will need to use a toilet where no suitable railing is available and it will be necessary, at least, to remove the inmate's handcuffs so that the inmate can attend to his or her personal hygiene. The contrary submission at subparagraph 26.1 of the written Outline of Submissions of CSNSW cannot be accepted (see paragraph 56 above). That this is so should be self-evident and was effectively acknowledged by Mr Farquhar when he gave the following evidence under cross-examination: Q. Okay, well, we can argue that with the Commissioner later on, but in any event, one thing is clear, is it not, that even if it did - sorry, I withdraw that. If at the hospital an inmate was subject to a requirement— A. Mmm. Q. --whether imposed by the order or some other requirement, that they're handcuffs were not to be removed, does that mean that the inmate would be left to defecate in his pants? A. No. There are actually provisions within the procedures manual that allow-- Q. Thank you. A. --for custody - yeah. Q. That's - I'm going to come to those procedures. A. Yeah. Q. So the procedures manual would effectively govern how you would deal with an inmate when, using my example, he needs to go to the toilet? A. The procedures manual is the guidelines but the best practice I guess would be the best way of describing it, best practice. Q. Yeah. So you'd follow the procedures manual if you had to make a decision about an inmate who said, "Excuse me, sir. I want to go to the toilet"? A. You'd consider both documents. You'd consider the conditions under which the person is transferred-- Q. Yes. A. --and the OPM. 1. Mr Farquhar, during cross-examination conceded that there is nothing in the Operation Procedures Manual or the SCCC Local Operating Procedures which sets out the procedure to be followed in a situation where an inmate patient has requested to take a shower (see paragraph 46 above). However, Mr Farquhar accepted that an inmate patient should not be prohibited from having a shower and that it would be reasonable in such a situation for an officer in the applicant's position to use some sort of modification of the procedure dealing with the use of the toilet or the procedure relating to medical treatment. 2. Under cross-examination, Mr Farquhar conceded that, under certain conditions, it would have been permissible to remove the inmate patient's handcuffs to allow him to have a shower. He gave the following evidence: Q. Okay. So if he satisfied himself that the continued charge and supervision of the inmate and the security of the hospital wouldn't be jeopardised, you would take the view that he would be entitled to make the decision to allow the inmate to have a shower? A. Yes, correct, under what circumstances that shower is taken. Q. What do you mean by that? A. Well, if he makes the decision to remove-- Q. Yeah? A. --the cuffs, which clearly he did-- Q. Yes? A. --then you would expect there'd a person stationed very close by that could either observe him visually or certainly hear what's going on. Q. Okay. Well, let's just park that for a minute and say if he left the door fully open, probably intruding upon the dignity of the inmate, but let's just assume that he left the door fully opened-- A. Mmm. Q. --that would satisfy your requirement? A. As long as an officer was stationed at the door. 1. Mr Farquhar ultimately conceded that removal of the handcuffs and ankle cuffs to allow the inmate to have a shower would have been permissible as long as certain conditions were met (see paragraph 49 above). 2. I find that the applicant's decision to allow the removal of the inmate's handcuffs and ankle cuffs to allow him to have a shower did not contravene those procedures specified in allegation 2. Further, there is no procedure dealing specifically with the issue of an inmate patient having a shower but, as Mr Farquhar conceded, there is no general prohibition on inmate patients having showers. 3. In these circumstances, the applicant cannot be found to have been in breach of a non-existent procedure. However, that is not the end of the matter. The applicant's inspection of the bathroom was clearly inadequate. It should have been apparent to him that the bathroom window was a potential escape point and he should not have permitted the removal of the inmate's restraints to allow him to have a shower without ensuring that he was kept under very close and direct observation at all times. Further, the onus was on the applicant to ensure that the incoming 'C' Watch officers were fully briefed on the existence of the bathroom window and the need to keep the inmate under close and direct observation until he had finished his shower and the restraints were reapplied. 4. The applicant's failings in this regard constitute, as he has readily conceded, monumental errors of judgement on his part which had extremely serious and potentially catastrophic consequences. These errors of judgement on the part of the applicant were sufficiently serious so as to constitute misconduct by him necessitating significant disciplinary action. However, in my opinion, the applicant's misconduct was not of sufficient seriousness to warrant the ending of his 22 year career as a Correctional Officer. Allegation 3 – failure to keep the inmate under surveillance at all times 1. The evidence supporting this allegation is inconclusive. The applicant and the two other 'A' Watch officers all claimed that the bathroom door was open or ajar while Inmate Brown was having his shower and that he could be seen through this opening by at least one officer at all times during their watch (see paragraphs 29-37 above). 2. However, the 'C' Watch officers all claimed that the bathroom door was closed (see paragraph 54 above). What is not in issue is that, during the 'C' Watch and just prior to his escape, Inmate Brown spoke to Mr Donnelly through the open door of the bathroom and then closed it. 3. The applicant was cross-examined on this issue of whether or not the bathroom door was open or ajar for the period when the 'A' Watch officers were responsible for the inmate (see paragraph 34 above). I detected nothing in the demeanour of the applicant while he was giving evidence under cross-examination which caused me reject him as a credible witness. By contrast, the statements of the 'C' Watch officers on this issue remain untested. 4. CSNSW has not satisfied the onus which it bears to prove this allegation on the balance of probabilities. This does not, however, diminish the seriousness of the applicant's misconduct in relation to his errors of judgement referred to at paragraphs 78-79 above. Allegation 4 – no proper briefing on the shift changeover 1. I am satisfied that, when Mr Donnelly arrived at the hospital room, he was made aware by the applicant that Inmate Brown was in the shower unrestrained. In his interview with Mr Wallace, the following exchange occurred: Q. Where were the restraints? A. At that time when I walked in there and I didn't see any, as soon as I walked in there, as soon as I walked in there I walked over to the back wall… Norm Collins was sitting there in the chair, I put my bag down there, I turned to Norm and had a conversation with Norm. Q. What ensued? A. I said "Where's the inmate?" He said, (Collins) "In the shower." I said "Okay." I said, "How's the inmate been, everything Okay?" He said, "All Good." Q. Did you know who the inmate was at that stage? A. Yeah I think during that conversation someone said it was Brown. Q. Were you aware of his classification? A. After the initial conversation, someone in the room, one of the officers already in the room said "Yeah his names Brown he's an E Classo he's escaped from the police a few years ago." Q. At that particular point in time what were your thoughts in terms of his restraint and positioning? A. Well I thought being an E classification inmate he should be restrained he required to be restrained at all times, unless he's undergoing a procedure. I noticed, and… being in the shower I noticed the door was closed but it wasn't locked. ………………….. Q. Did you ask if that was the case, did you say is that a secure area? A. No I didn't. …………………… A. … I was there looking at the keys and then I said to Norm, I'm thinking there's one set there, there's one set there, I said to Norm "Okay so we've got ankle cuffs on the end of the bed, a set of hand cuffs over there, there's another set of hand cuffs." He said 'No there's not." At that point I thought well we'd better get these restraints on this inmate… 1. However, there is no evidence that the applicant told Mr Donnelly that the bathroom in which the inmate was having a shower had a window. Even though the applicant did not believe that the window was one through which the inmate could escape, he should have told Mr Donnelly of its existence and Mr Donnelly should have satisfied himself that the window did not present a potential escape point. 2. In the handover to Mr Donnelly, the applicant should have stressed the need to keep the inmate in sight while he was in the bathroom. The applicant's negligence in this regard compounds his negligence in respect of allegation 2, but not to the extent that would justify the termination of his employment. Allegation 5 – provision of false and misleading statements 1. This allegation was based on Mr Farquhar's belief that the applicant had falsely stated that the bathroom door was open and that the inmate was kept in sight at all times. 2. In light of my finding in relation to allegation 3, it follows that I find that this allegation has not been proven to the requisite standard. I also note Mr Farquhar's concession to the effect that the applicant's dismissal was based on the escape of the inmate and not on positive findings in relation to allegation 1 and this allegation: Q. Right, okay. Now, you were asked a lot of questions about how you formed the view— A. Mmm. Q. --that Mr Collins was guilty of - allegation 5 about false and misleading statement? A. Yeah, yeah, yeah. ………………... Q. If that allegation hadn't been added on, would your decision about-- A. It was a decision in terms of the escape or his actions which - when the escape occurred. Q. The decision about the penalty or outcome in relation to the-- A. Yes, the allegation about misleading statement or whatever, I think that was - completely a separate - it wasn't combined. The issues I was considering predominantly were the escape. Q. The 2 and 3 and 4, the restraints, the-- A. Well, the escape. Q. Right. A. Yeah. Q. The escape. And so therefore would your answer be the same about the failure to keep the log? A. Yes. Q. So your concern is the-- A. Is the escape. Ultimate findings 1. I find that the dismissal of the applicant was harsh, unreasonable and unjust. 2. Taking these concepts in reverse order, the dismissal of the applicant was unjust because the most significant allegations of misconduct by the applicant have not been proven to the requisite standard on the evidence before the Commission. 3. I find that the dismissal of the applicant was unreasonable. The applicant was singled out for the ultimate sanction of dismissal in circumstances where other officers also bore significant responsibility for the escape of Inmate Brown, but were treated far more favourably than the applicant in terms of the punishment imposed on them. 4. I also find that the dismissal of the applicant was harsh in the sense that the punishment did not fit the crime or, put another way, was "too harsh a consequence" for the applicant's misconduct, in the sense that this expression was used by Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at p.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. The dismissal of the applicant was harsh in that the proven misconduct of the applicant was not of sufficient seriousness to warrant the ultimate sanction of the termination of an unblemished 22 year career as a Correctional Officer. Is reinstatement impracticable? 1. In her final address to the Commission, counsel for CSNSW put the following submission: So there wasn't just one mistake either, there was an intentional and considered breach of procedures, not intentional in the sense of I'm going to let Brown escape but intentional in the sense of I don't really need to follow procedure. That's a conscious activity and in doing so he removed the restraints and he failed to exercise adequate judgement in his security assessment and on consideration of the whole of that conduct, Corrective Services NSW cannot be confident that in future he would exercise sound judgement and therefore his continued employment as a correctional officer, would present an unacceptable risk to Corrective Services performing its primary function which is to enhance the safety of the public. 1. At the conclusion of counsel's address, the following exchange occurred: COMMISSIONER: Very well. Just before you resume your seat, I didn't see in the outline of contentions that was filed with the evidence or in your outline of submissions that were handed to me yesterday, anything about impracticability of reinstatement. Mr Reitano says in his final paragraph, "There's nothing impractical about reinstatement". You have just, in your submission now have indicated that Corrective Services cannot be confident that he would follow procedure in the future, which if that be right, goes to the question of impracticability. GRAYCAR: That is our submission, that the level of complacency that was involved in the activity, even another illustration is the failure to remember the training, there is a lackadaisicalness about something that's far too serious and significant. COMMISSIONER: Well just focussing on your point that Corrective Services doesn't or cannot be confident that he would comply with procedures in the future, did Mr Farquhar or Mr Reid say anything about that because I don't recall in their witness statements or indeed in the evidence they gave yesterday, dealing with that issue of impracticability of reinstatement. GRAYCAR: Look, I'd have to check the statements again, I can't answer that off the cuff, I don't recall directly it being addressed but I would not want to say no until I've had a chance to read them again. 1. At the conclusion of the proceedings, both parties were given leave to file further written submissions on the issue of impracticability of reinstatement. The submissions filed on behalf of CSNSW stressed that there had been a loss of confidence in the applicant's ability to carry out the functions of a Correctional Officer in the future. However, this submission was not supported by any evidence which was placed before the Commission in the proceedings. Neither Mr Farquhar nor Mr Reid gave any evidence which touched upon this issue. I reject the submission. 2. There is no doubt that the applicant was negligent and complacent in execution of his duties on 22 August 2016. However, as is set out above, the more serious allegations of misconduct by him have not been proven to the requisite standard on the evidence before the Commission. 3. No finding of intentional breach of procedure or of dishonesty, which might be expected to destroy the trust and confidence that an employer is entitled to have in an employee, has been made against the applicant in these proceedings. 4. However, in my opinion, the negligence and complacency of the applicant do amount to misconduct such as to disentitle him to the benefit of any order for back pay. 5. I have no doubt that the applicant has learned a very important lesson as a result of what occurred on 22 August 2016 and what followed thereafter. The experience he has been through, as well as the significant financial penalty he will suffer as a result of my determination to refrain from making any order for back pay, will, in my opinion, ensure that he approaches his duties in the future with far more diligence and care and he did on that day. 6. I propose to order the reinstatement of the applicant but will defer the date of effect of that order for two weeks to allow CSNSW to make the necessary arrangements to integrate the applicant back into the workforce at the SCCC or to otherwise consider its position in relation to this decision. Orders 1. I make the following orders: 1. Norman Collins is to be reinstated to the position he held with Corrective Services NSW immediately before his dismissal on 10 March 2017 on the same terms and conditions as applied to his position at that time. 2. Order 1 is to take effect from Monday, 21 August 2017. 3. No order is made for payment to Mr Collins for the period between the time of his dismissal and 21 August 2017, which period is not to count as service for any purpose. 4. Despite order 3 Mr Collins' 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. Commissioner John Murphy ********** Amendments 11 August 2017 - On page 2 under the heading "Representation" Solicitors name has been amended from "Ms J Taverner" to Ms E Keech 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 August 2017