WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2017 WAIRC 00794

DELIVERED : friday, 8 September 2017

FILE NO. : U 41 OF 2017

Applicant

AND

The Minister for Corrective Services

Respondent

CatchWords : Industrial law (WA) - Alleged harsh, oppressive and unfair dismissal - Applicant summarily dismissed for misconduct - Respondent accepts onus to prove allegation - Respondent unable to prove allegation on balance of probabilities - Application upheld - Compensation and reinstatement ordered

Legislation : Prisons Act 1981

Result : Application upheld; compensation and reinstatment ordered

Representation:

Counsel:

Applicant : Ms R Cosentino

Respondent : Mr J Carroll

Solicitors:

Applicant : Slater & Gordon

Respondent : State Solicitor’s Office

Cases cited:

Garbett v Midland Brick Co Pty Ltd (2003) 83 WAIG 893

Minister for Health v Drake-Brockman (2012) 92 WAIG 203

Newcrest Australia Ltd v The Australian Workers’ Union, Western Australian Branch (1988) 68 WAIG 677

RT v The School [2015] FWC 2927

The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WASCA 86

Reasons for Decision

1         The applicant was dismissed after the respondent found proven against him an allegation that during the escort of a prisoner, Trent Hayes, he had forced Mr Hayes’ head into a wall.

2         The respondent at hearing accepted the applicant’s contention that he had summarily dismissed the applicant and that he had the onus to prove the allegation before me.

3         The respondent has fallen well short of proving the allegation on the balance of probabilities.

4         The applicant denied the allegation and his denials were not in any way, either directly or by collateral attacks on credit, undermined in these proceedings.

5         Footage of the incident became an exhibit in these proceedings and shows, to my eye, that the applicant was, along with the prisoner, wheeled around as they passed through the doorway of unit one, C Wing day room by the other officer involved in the escort. The footage shows that the applicant got dragged along by the momentum created by that other officer and stumbled toward the wall with which Mr Hayes came into contact.

6         I accept that the applicant, as he says, thought the party would be going to the right when they passed through the doorway and was caught unawares by the other officer swinging the party to the left.

7         The applicant’s expert witness, Dr Andrew Short, was able to give evidence on the biomechanical factors at play in what is shown by the footage.

8         Dr Short explained, and I accept, that the other officer involved in the escort had two feet planted on the ground at the doorway and thus had established greater friction than Mr Hayes and the applicant at the crucial time.

9         Dr Short explained that with that greater friction the other officer was able to act as a pivot around which Mr Hayes and the applicant moved. As that officer moved to the left, as he clearly did when the footage is viewed, he was able to wheel Mr Hayes and the applicant around to the left.

10      The applicant, being unprepared for movement to the left, got dragged around and had no control over what happened in the next couple of seconds, including Mr Hayes’ contact with the wall.

11      The evidence of Mr Hayes was the only evidence put up by the respondent in support of his case. I can understand Mr Hayes thinking he had been forced into the wall but his position, being bent over facing the ground, was not a good one to assess who was doing what. A viewing of the footage, informed by the expert evidence, is a more reliable guide.

12      The contact of Mr Hayes’ head with the wall was, in my view, accidental. It certainly did not result from the applicant’s actions.

13      There was a second allegation found proven against the applicant.

14      However, the respondent accepted that the finding in relation to that other allegation was not, and could not, in itself be relied upon to dismiss the applicant from his employment.

15      Having found that the misconduct the respondent relied upon to dismiss the applicant from his employment has not been proven to me on the balance of probabilities I turn to the matter of remedy.

16      The respondent did not contend that reinstatement was impracticable and I will order the respondent to reinstate the applicant to the applicant’s former position on conditions at least as favourable as the conditions on which he was employed immediately before dismissal.

17      I will also make an order that the applicant’s employment is to be treated by the respondent as unbroken.

18      Further, I will make an order the respondent pay to the applicant the remuneration lost by the applicant because of his dismissal.

19      The applicant informs me that his gross wages were $82,000 per annum and no issue was taken with this by the respondent.

20      Since termination the applicant has received payments from employment and Newstart benefits totalling $24,875.05.

21      I would ask the parties to agree upon the final figure payable for remuneration lost assuming that the order will be made on 15 September 2017. 

22      There was a great deal of evidence led and argument put in relation to the misconduct found on the second allegation.

23      I note that Exhibit 10 proposed that the penalty on that misconduct would be dismissal and I cannot find in Exhibit 12 any indication that some different penalty was actually imposed for the misconduct.

24      I have noted that at the hearing the respondent accepted, appropriately, that that misconduct could not, in itself, sustain a decision to dismiss the applicant from his employment.

25      Strictly speaking it is not necessary for me to deal with the second matter as any finding on it could not impact on my ultimate order that the respondent reinstate the applicant to his former position.

26      However, given the evidence led and arguments made I will give my views.

27      Section 14(1)(d) Prisons Act 1981 provides that prison officers may use such force as they believe on reasonable grounds to be necessary to ensure a lawful order given to a prisoner are complied with.

28      Here Mr Hayes had been ordered to move from unit one C Wing day room to another place within the prison. Instead of complying he sat still in a chair and began mouthing off at the prison officers present.

29      An officer brought Mr Hayes to the ground and three officers, including the applicant, handcuffed him while he was lying face down.

30      I accept that Mr Hayes continued to abuse the officers and was probably also making wild, and largely unachievable, threats at this time as well as struggling against the attempts to handcuff him.

31      When it came time to use force to ensure that Mr Hayes complied with the order to go elsewhere within the prison the applicant decided to use the underhook and pike method, shown in pictorial form at page 46 of Exhibit 3.

32      This method involved more force that the “standard” escort method shown at page 45 of Exhibit 3, according to the unchallenged evidence of Bruce Mark Kentish, Acting Senior Team Leader, Training Services at the respondent’s training academy, Graham Robert Carlson, a Principal Prison Officer (ts 74), Christopher David Rule, Senior Prison Officer (ts 115) and the applicant himself (ts 50).

33      For a more forceful method to be preferred to a less forceful one there must be reasonable grounds for a belief that it is necessary to ensure the lawful order is complied with.

34      No reasonable grounds were put forward by the applicant. The applicant says that while on the ground Mr Hayes was making threats, generally mouthing off, and physically resisting the force being applied to him and for these reasons he thought it was reasonable to go straight to the underhook and pike method without attempting the less forceful option of the standard escort method.

35      I appreciate fully that I am addressing reasonableness in the comfort of my chambers and that the applicant was assessing it in a volatile situation in a volatile working environment.

36      Nonetheless, it is plain from all of the evidence that the respondent takes the proper application of force as a very serious matter, as it should given the powers his officers enjoy, and spends a great deal of time in training and in production of manuals which are intended to assist officers in assessing what force to use.

37      It is also clear from the evidence that officers themselves, no doubt as a result of the emphasis their employer puts upon it, have, or should have, at the forefront of their minds in situations such as this what force should be used.

38      By mentioning these factors I do not mean to suggest that split second decisions do not need to be made or that getting it entirely right is not a very difficult thing to do in volatile situations, but rather to emphasise that it cannot be said when I come to objectively assess the actions of the applicant that I am dealing with a person who would have little idea how to handle such a situation but rather with someone who is expected to behave reasonably in volatile situations in a volatile working environment and operates in a culture where this is emphasised.

39      I consider that there was no good reason to not first attempt the standard escort method. Mr Hayes may have been threatening harm and abusing the prison officers while on the ground but he was handcuffed and had a limited ability to carry out his threats, even if they were taken seriously.

40      None of those threats involved spitting, biting or headbutting.

41      Mr Hayes was not a “notorious” prisoner known for assaulting prison officers (ts 110).

42      My viewing of the footage indicates that, whatever he may have been saying and doing while on the ground, when Mr Hayes was raised to his feet he was a defeated man. He was not spitting or attempting to spit or bite or headbutt anyone. His non-compliance had been, at this point, overcome by bringing him to the ground and handcuffing him.

43      A standard escort would have involved two trained and hefty prison officers marching Mr Hayes, a slight man by comparison, to the intended destination each holding one of his arms.

44      I consider it would have been reasonable to attempt compliance by means of the standard escort method and to escalate the force used to an underhook and pike if something happened.

45      The applicant seems to have been unduly influenced by past experiences with other prisoners. (for instance ts 17)

46      I do not consider it reasonable to have gone straight from subduing and handcuffing Mr Hayes on the floor into an underhook and pike method of escort.

47      If the standard escort method had been used, the accident I have found occurred may have been avoided, not that that speculation is material to any of my conclusions.

48      The applicant used slightly more force than he, reasonably, ought to have done.

49      I did not raise with the parties whether, if the applicant was returned to his employment, the respondent would get a second bite at the cherry on that misconduct given that it did not, for understandable reasons given its findings on the first allegation, appear to have given discrete consideration to the appropriate penalty if the second matter stood alone. I expressly do not deal with whether the respondent is now estopped from imposing a different penalty on the applicant for the act of misconduct that, in my view, did occur.

50      For what it is worth it seems to me that the misconduct that occurred, the application of a bit more force than was warranted, was minor only in all of the circumstances and that it could be adequately addressed by improvement action.