The Full Bench has unanimously dismissed an appeal against the decision of the Commission on the basis that no appealable error had been made out to quash the decision at first instance in finding that the respondent, a prison officer, was unfairly dismissed.

Background

In 2018, the employment of a Senior Prison Offer (Officer) was terminated by the Director General of the Department of Justice following allegations of excessive and unreasonable use of force.  

At first instance

There were two incidents in which the Officer used Oleo-resin Capsicum spray (OC spray), and each incident related to a different prisoner.

The Commission found, in relation to the first incident where the Officer sprayed the prisoner twice, that the first of the two sprays did not constitute excessive force. However, the Commission found that the second spray of OC spray was not justified.  

The Commission found that in relation to the second incident, the deployment of OC spray was justified and did not constitute unreasonable force.

Senior Commissioner Kenner considered the two incidents jointly and examined evidence relating to practice in prisons, policies and training materials regarding the use of force, and the Officer’s unblemished record of service. He determined that reliance on one incident alone, in relation to the second deployment of OC spray during the first incident, could not warrant the dismissal of the Officer.

Kenner SC ordered that the Officer be reinstated in his position without loss.

The decision at first instance can be read here.

Appeal to Full Bench

Ground 1

The Minister for Corrective Services appealed against the decision. The Minister argued that Kenner SC erred in the way he applied the test for determining whether the Officer’s use of force fell outside the provisions of s 14(1)(d) of the Prisons Act.

Chief Commissioner Scott (with whom Commissioner Walkington agreed) determined, on application of legal principle, that the law recognises that the decision-maker at first instance, in a discretionary decision, is entitled to make a conclusion which falls within the general ambit available to him. It may be that there is more than one acceptable outcome as to whether the use of force was reasonable. In this case, it depended on all the circumstances including the Officer’s perceptions at the time. Scott CC found that the Full Bench, in considering the appeal, is required to allow the range of possible outcomes in the decision of the Commission at first instance as to the reasonableness of the use of force.

Scott CC found that Kenner SC was entitled to conclude that the use of force was reasonable. Scott CC found that Kenner SC had taken account of and assessed the particular use of force by reference to the statutory criteria, the benefit of hindsight, the prisoners’ conduct, the Officer’s state of mind and the issue of proportionality.

However, Commissioner Matthews dissented and found that the conduct of the Officer in the first incident, where he sprayed the prisoner twice, was not reasonable.  

Ground 2

The Minister did not pursue Ground 2 as it said that the issues were dealt with in other grounds.

Ground 3

The appellant also asserted that Kenner SC erred in fact by finding that the Director General placed the Officer in a position of higher authority and trust after the incidents and that this was incongruous with the Director General’s view that there had been such a breakdown in the relationship to affect the practicability of reinstatement.

Scott CC found that Kenner SC erred in forming the view that the employer took some particular action to place the Officer in a higher position. Scott CC found that the Officer’s placement in the higher level role was by operation of law, that is, it is prescribed in the applicable industrial agreement, by virtue of there being no officer more senior on the roster and present at the time.

However, Scott CC found that while this ground of appeal was upheld, it was supplementary or even incidental to the issue of trust and confidence and did not affect the outcome.

Ground 4

The appellant argued in ground 4 that Kenner SC erred in fact and law in exercising discretion without proper regard to the rationale for the dismissal.

The appellant contended that the Officer was not dismissed as a penalty for established breaches of discipline, but because the appellant had lost trust and confidence in the Officer which arose from the breaches of discipline.

However, Scott CC found that this contention was inconsistent with the way the allegations and the ultimate decision were communicated by the Director General. Rather, the allegations particularised in the correspondence to the Officer were in relation to his conduct or actions, and not due to a lack of trust and confidence.

Ground 4 was dismissed.

Application to add new ground of appeal

The appellant had sought leave to add a new ground of appeal.

Scott CC noted that the new ground of appeal raised a different and additional question to those which were raised in the other grounds of appeal. Scott CC noted that unfair dismissal claims are normally heard in one sitting, and as a matter of policy, it is not desirable that the staged approach be the norm.

Scott CC determined, as the Minister had purported to argue the case in full at first instance, that leave to appeal would not be granted.

The appeal was dismissed.

The decision can be read here.