UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2021 WAIRC 00583

DELIVERED : FRIDAY, 19 NOVEMBEr 2021

FILE NO. : U 4 OF 2021

Applicant

AND

The Minister for Corrective Services

Respondent

CatchWords : Unfair dismissal – Conflict of interest disclosure – Dishonesty -Honest and genuine belief, based on reasonable grounds, that misconduct occurred – Counselling would not be an appropriate outcome – Dismissal was not disproportionate

Legislation : Industrial Relations Act 1979 (WA): s 29(1)(b)(i)

Public Sector Management Act 1994 (WA): s 78(2)(b)(iv)

Prisons Act 1981 (WA): s 99

Result : Application dismissed

Representation:

Applicant : Mr C Fordham (of counsel)

Respondent : Mr S Pack (of counsel)

Cases referred to in reasons:

Bi-Lo Pty Ltd v Hooper, Hooper v Bi-Lo Pty Ltd (1992) 53 IR 224

Hawthorn v Minister for Corrective Services [2019] WAIRC 00302

Miles & others t/a Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385

Minister for Health v Denise Drake-Brockman [2012] WAIRC 00150

Parnell v The Roman Catholic Archbishop of Perth [2021] WAIRC 00103

Sangwin v Imogen Pty Ltd [1996] IRCA 100

Reasons for Decision

1         Mr Ryan was a prison officer employed by the Minister for Corrective Services (Minister). Mr Ryan worked for the Department of Justice (Department) for over ten years until December last year when he was summarily dismissed for misconduct related to his disclosure of the details of his relationship with a prisoner (who I will call ‘S’ in this decision).

2         Mr Ryan says that he is not guilty of the conduct alleged in any of the allegations and the reasons for his dismissal are not reasonable because the investigation into the allegations was flawed.

3         The Minister says that the investigation was fair. Prison officers are in a position of trust and it is essential the Department be able to rely on their integrity and honesty. The Minister says that if the Commission upholds his findings of misconduct, then the necessary findings of dishonesty are such that dismissal cannot be disproportionate or unfair.

What must I decide?

4         I must decide whether the legal right of the Minister to dismiss Mr Ryan has been exercised so harshly or oppressively as to amount to an abuse of that right: Miles & others t/a Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385, 386.

Evidence

5         The parties filed a statement of agreed facts and a bundle of agreed documents.

6         S was imprisoned at Casuarina Prison in January 2020. Mr Ryan was on annual leave at that time. On 14 February 2020, Mr Ryan returned from annual leave and on 20 February 2020, he submitted a conflict of interest form to declare an association or relationship with S (2020 COI). In the 2020 COI, Mr Ryan mentioned having previously declared an association or relationship with S. Mr Ryan later said he made this declaration in 2016 (2016 COI).

7         The Minister suspended Mr Ryan with pay in April 2020 and a month later Mr Ryan was presented with the first of three letters of allegation. Following an investigation into the allegations, the Minister dismissed Mr Ryan.

8         The parties relied on the bundle of agreed documents at the hearing and called three witnesses.

Summary of what was before the investigators

9         The bundle of agreed documents that the parties filed was made up of the investigation report and 34 documents that were before the investigators. These documents included interview transcripts of five interviews conducted by the investigators, the three letters of allegation, a letter setting out the preliminary investigation findings and proposed action, a letter of dismissal and Mr Ryan’s responses to each of these.

10      The parties agreed that these were materials that the Minister relied on in coming to his decision.

Witnesses at the hearing

11      Mr Ryan gave evidence and did not call any other witnesses.

12      The prisoner, S, and Mr Booth gave evidence for the Minister. S was summoned.

13      Mr Booth has been the Assistant Superintendent Security and the Security Manager at Casuarina Prison for the past nine years. He presented as a credible witness.

Consideration of S as a witness

14      S presented as a credible witness. Although summoned to give evidence, S was cooperative and generally earnest when giving evidence.

15      S was not a party to the proceedings. I accept the Minister’s submission that unlike Mr Ryan, S did not have access to the pleadings or documents in this matter. S did not have an opportunity to see any of the outlines of evidence, not even his own. He gave evidence about events that took place years ago, to the best of his recollection.

16      Overall S took care with language when giving evidence, for example he would say if he was only ‘pretty sure’ about a matter. S would say if he did not remember something, including where doing so did not suit the Minister’s case. S made concessions when they were due.

17      S was a forthcoming witness. He answered all questions put to him, including when his evidence was against his own interests or dealt with matters that were potentially damaging or embarrassing to him. S’ explanation for why he was more cooperative giving evidence at the hearing than when he had been speaking to investigators was plausible and it rang true.

18      Mr Ryan did not put to S in cross-examination that S was torn between loyalties or pressured by other prisoners to come up with stories about Mr Ryan. S’ evidence that he did not want to be moved from Casuarina Prison in 2020 because he was scared of ‘the boys after [him]’ does not lead me to conclude that S would lie under oath in September 2021, particularly given S’ evidence that he was now settled at a different prison and no longer had such concerns. S presented as a person who was taking responsibility for his actions and who was relatively sympathetic toward Mr Ryan, for example in relation to Mr Ryan having lost his job. S did not present as a person with a grudge against Mr Ryan.

19      S’ evidence was not disturbed in any critical or material way in cross-examination. Overall, S struck me as an honest, reliable witness and I accept his evidence.

Consideration of Mr Ryan as a witness

20      Mr Ryan was an unimpressive witness.

21      Frequently Mr Ryan was evasive or unforthcoming. Often Mr Ryan would not directly answer questions that were put to him when the evidence was about matters materially in dispute. Before answering, Mr Ryan appeared to consider how his responses would fit into his case, for example when answering whether he had met S in 2013. At times Mr Ryan contradicted himself.

22      Frequently Mr Ryan did not make concessions that obviously needed to be made. For example, Mr Ryan insisted that an ‘event’, such as whether a person had been to his house or not, was not relevant to the nature of a relationship, even though Mr Ryan agreed that he had included on another conflict of interest form whether another prisoner had been to his house because it was important information that the decision maker needed in order to decide whether or not there was a conflict of interest. Similarly, even though Mr Ryan conceded that whether a prisoner had been to his home or knew anything personal about him was an important consideration and something that the decision maker would need to consider, and Mr Ryan said in examination-in-chief that S knew ‘plenty’ about him, Mr Ryan still had no explanation for why he considered that he did not need to disclose that S had been to his home and knew plenty of personal things about him.

23      Mr Ryan would not concede that his reference to Shalom House and Peter Lyndon‑James in his email dated 18 February 2020 to Mr Booth would have the effect of downplaying his connection with S and may lead the reader to infer that Mr Ryan’s association with S was as it may be with any number of the prisoners who attended Mr Ryan’s very large church. Plainly that was a concession that should have been made.

24      Some of Mr Ryan’s evidence was simply implausible. For example, Mr Ryan gave evidence that in 2015 he interacted with S ‘a few times’, being three or four. He described them going to bingo and the movies together. Mr Ryan described this as ‘very minimal’. Mr Ryan said that in 2017 S came to his church a few times, visited his home twice and the two played ‘bingo and stuff’ on ‘a few extra instances’. Further, Mr Ryan agreed he and S had spent five days travelling to Queensland for a holiday together. Mr Ryan would not concede that his relationship with S was closer in 2017 than it had been in 2015. On Mr Ryan’s evidence alone, clearly the nature of his relationship/association with S in 2017 was closer (and considerably more than ‘very minimal’).

25      Mr Ryan eventually agreed in cross-examination that he knew that Mr Booth only had Mr Ryan’s 2020 COI and email dated 18 February 2020, (and neither of those documents said that S had visited Mr Ryan’s home or that they had gone on a holiday together), but Mr Ryan would not concede that that meant when making a decision about whether there was a conflict of interest, Mr Booth was left with a mistaken, inaccurate or false impression about the extent of Mr Ryan’s relationship with S. Three times Mr Ryan refused to make the concession that obviously needed to be made.

26      In an email response dated 17 February 2020 Mr Ryan wrote that he had put in the 2016 COI ‘six weeks after [S] got out’, which was ‘12-18 months ago’ (meaning August 2018 – February 2019), which is a long time after the time Mr Ryan said in evidence that he submitted the form. Mr Ryan’s email is a short document. In it Mr Ryan refers to having put in the 2016 COI ‘six weeks after [S] got out’ of prison. Mr Ryan gave evidence that he thought he had ‘muddled [himself] up there’ and he ‘was maybe referring to the fact that when [S] came back to Casuarina, um, I - there was like, ah, perhaps in the six - six weeks, two months after he got back but that's not - that says after he got out.’ In cross-examination Mr Ryan agreed that it was not a simple typo and that ‘because the last four words says, "after he got out", so I obviously know straight away that I've – that's not correct, because I put it in when he was in.’ In cross-examination Mr Ryan agreed such a mistake would have been obvious and that he had several opportunities to correct such a mistake. I find Mr Ryan’s explanation about this matter to be implausible and uncompelling. Having referenced ‘6 weeks after S got out of prison’ and ‘12-18 months ago’ it is implausible that Mr Ryan intended to say that he had submitted the 2016 COI in 2016. It is also inconsistent with Mr Ryan’s approach to correct and clarify other less significant matters when they were put to him, for example after he read the investigation report and in his responses to the allegations.

27      Mr Booth told Mr Ryan that he did not have a record of the 2016 COI and asked Mr Ryan to resubmit it. In cross-examination Mr Ryan denied that ‘resubmit’ meant he would need to put it in again, when plainly the ordinary meaning of resubmit means exactly that.

28      In relation to two conflict of interest (COI) forms from 2019, Mr Ryan agreed that whether two other prisoners had visited his home or knew his address was important and could affect Mr Ryan’s ability to do his job, but Mr Ryan would not concede the same was true for S.

29      Mr Ryan’s insistence that the COI form is ‘not for listing events’ and that what matters is ‘where did the [social friendship] start from’ was not credible, nor was his evidence (set out at [112]) about whether sexual activity is relevant to the nature of a relationship, in the context of this matter.

30      For these reasons, I have serious concerns about Mr Ryan’s truthfulness and reliability. To the extent of a conflict on material facts, I prefer the evidence of S and Mr Booth to that of Mr Ryan.

Legal principles

Mr Ryan’s submissions

31      The parties agree that the Commission should apply Bi-Lo Pty Ltd v Hooper, Hooper v Bi-Lo Pty Ltd (1992) 53 IR 224 (Bi-Lo) because of the nature of the allegations in this case.

32      Mr Ryan says that Bi-Lo emphasises the need for procedural fairness and sufficient enquiry. The Minister was required to independently and thoroughly investigate the circumstances and give Mr Ryan an opportunity to address ‘all the details of each of the claims in full.’ The way that the allegations were put meant that the Minister did not give Mr Ryan procedural fairness. Though the investigation was lengthy, the extent of the inquiry was not sufficient to reasonably support the view that Mr Ryan was guilty of the conduct alleged. Specifically:

1. there was not ‘sufficient effort directed to identify the circumstances and the details regarding the highly contentious claim by S that he had engaged in sexual activities with Mr Ryan on two prior occasions’;

2. the investigation did not ‘discern the involvement of another prisoner… in the conception of the initial complaint’ about S;

3. the investigation did not fully explore other reasons that may explain why the Minister did not have a record of Mr Ryan’s 2016 COI; and

4. the Minister’s assumption that Mr Ryan and S had previously discussed S’ incarceration at Hakea Prison in 2013 was not put to Mr Ryan or S.

33      Mr Ryan says that the Minister accepted suspicions about him at face value and relied on flawed reasoning to fill gaps in evidence.

34      Mr Ryan argues that the question in this matter is whether Mr Ryan intended to deceive or mislead. Without intent, he says dismissal is not an appropriate penalty.

The Minister’s submissions

35      Mr Ryan’s application is made under s 78(2)(b)(iv) of the Public Sector Management Act 1994 (WA) (PSM Act) and s 29(1)(b)(i) of the Industrial Relations Act 1979 (WA) (IR Act). The Minister says that although the weight of authority now suggests that, in at least some cases referred to the Commission under s 78(2) of the PSM Act, the Commission may hear the matter afresh and decide for itself whether the relevant misconduct took place, in this case neither party sought to have the Commission hear the matter afresh. Instead the parties have asked the Commission to consider the Minister’s decision on the record of the disciplinary proceedings, supplemented by some evidence (mainly the oral evidence of Mr Ryan and S).

36      If the Commission is satisfied to the required standard that the misconduct occurred, the only question then is whether that misconduct justified dismissal. However, the parties agree that the nature of the misconduct in this case attracts the Bi-Lo test. This means it is not necessary for the employer to establish that the employee was guilty of the misconduct alleged. The employer is entitled to act even if it is not able to prove that the employee was actually guilty of the conduct: Parnell v the Roman Catholic Archbishop of Perth [2021] WAIRC 00102 [114]-[118] (Scott CC and Walkington C), [292] (Emmanuel C) (Parnell).

37      The Minister argues that where Bi-Lo applies it is not necessary for the employer to prove that the misconduct actually occurred, but it is plainly sufficient if the employer can do so. Bi-Lo involves balancing the interests of the employer, the employee and the wider public interest: Minister for Health v Denise Drake-Brockman [2012] WAIRC 00150 (Drake-Brockman) at [60]. Where the allegation is of a certain serious type, the employer can act even if not able to prove to the required standard that the employee was actually guilty, because it is fair and reasonable in those circumstances: Drake-Brockman at [56]-[59]. The employer must show that following a proper inquiry there were reasonable grounds for holding a genuine belief that the misconduct had occurred. Here, the question of whether the employer’s belief was based on genuine grounds is considered on the totality of what was before the investigators and what is before the Commission: Parnell [117] and Drake-Brockman at [69].

38      Accordingly, the Minister submits that it will be sufficient in respect of each allegation of misconduct if the Commission is satisfied that either:

1. the misconduct occurred; or

2. the employer held an honest and genuine belief, based on reasonable grounds, that the misconduct occurred.

Consideration

39      It is common ground that the nature of the misconduct alleged in this case means that Bi-Lo applies.

40      I must decide whether Mr Ryan’s dismissal was harsh, oppressive or unfair in the circumstances. That involves considering whether the Minister, after as proper and as thorough an inquiry as was necessary in the circumstances, had an honest and genuine belief, based on reasonable grounds, that the misconduct alleged occurred (Parnell at [117] per Scott CC and Walkington C, and [292] per Emmanuel C).

41      It is not necessary for the Minister to prove the alleged misconduct occurred, but given the serious nature of the allegations, if the Commission is satisfied that the alleged misconduct occurred then Mr Ryan’s application must be dismissed. The requisite standard of proof is on the balance of probabilities.

Investigation process

First letter of allegation

42      On 21 May 2020, Mr Jim August (Director of the Professional Standards Division) wrote to Mr Ryan outlining three suspected breaches of discipline and informing Mr Ryan that he would be suspended from duty, initially on full pay (First Letter).

43      In summary, the three allegations were that:

1. Mr Ryan committed an act of misconduct by giving his personal phone number to S in late 2016. (Allegation 1)

2. On 20 February 2020, Mr Ryan committed an act of misconduct because he did not declare the true nature of a past personal relationship and association he had with a prisoner (S) (Allegation 2). In particular, he did not declare that:

i) in 2018 when S was not incarcerated, he engaged in sexual activities with S on two occasions;

ii) in November 2018 he went on an interstate holiday with S; and

iii) S has attended his home address.

3. On 20 February 2020, Mr Ryan committed an act of misconduct because he falsely declared the nature of his relationship with a prisoner (S). (Allegation 3)

44      The letter explained that Mr Jeff Fussell would investigate the allegations. It explained the possible outcomes that would flow depending on whether a breach of discipline was found. Mr August explained that he was providing Mr Ryan an opportunity to provide a written submission within 10 days. The letter referred Mr Ryan to the Public Sector Commission’s website which had information about disciplinary procedures. It also offered Mr Ryan the opportunity to make an in-person submission to the investigators if he preferred.

Written response to the First Letter

45      Mr Ryan provided an undated written response to the First Letter. Mr Ryan said  ‘holistically, there are particulars of these allegations that are true, however, the conclusions that have been made are unfair and inaccurate’. He agreed that he travelled with S to Queensland and that S had been to his home address.

Invitation to attend an interview

46      On 12 June 2020, Mr Fussell emailed Mr Ryan and invited him to attend an interview in relation to the investigation. Mr Ryan declined the invitation by email the same day, providing a further response to the allegations.

47      On 20 June 2020, Mr Ryan wrote to Mr Fussell by email and provided a further written response to the First Letter.

Second letter of allegation

48      On 7 September 2020, Mr August wrote to Mr Ryan and outlined a further three suspected breaches of discipline (Second Letter).

49      Briefly, the further three allegations were that:

4. On 29 January 2016, Mr Ryan committed an act of misconduct by failing to submit a conflict of interest form disclosing the past personal relationship and association he had with a prisoner (S). (Allegation 4)

5. On 29 May 2020, Mr Ryan committed an act of misconduct by providing false, dishonest and/or misleading information in his responses to the letter of allegation dated 21 May 2020. (Allegation 5)

6. On 12 June 2020 Mr Ryan committed an act of misconduct by providing false, dishonest and/or misleading information in his responses to a disciplinary investigation. (Allegation 6)

50      The Second Letter attached 21 pages of documents to ‘assist [Mr Ryan] in providing a response to the further allegations.’ It explained the possible outcomes that would flow depending on whether a breach of discipline was found. Mr August explained that he was providing Mr Ryan an opportunity to provide a written or in-person submission within 14 days.

Response to the Second Letter

51      Mr Ryan provided a written response to the Second Letter on 22 September 2020. He denied all the allegations.

Third letter of allegation

52      On 13 October 2020, Mr Trevor Wynn (Acting Director of the Professional Standards Division) wrote to Mr Ryan and outlined a further two suspected breaches of discipline (Third Letter). These were:

7. On 1 April 2019 Mr Ryan committed an act of misconduct by failing to seek approval to work as a teacher with the Department of Education. (Allegation 7)

8. On 1 April 2019 Mr Ryan committed an act of misconduct by engaging in secondary employment without his manager’s approval. (Allegation 8)

53      The Third Letter explained the possible outcomes that would flow depending on whether a breach of discipline was found. Mr Wynn explained that he was providing Mr Ryan an opportunity to provide a written or in-person submission within 14 days.

Response to the Third Letter

54      Mr Ryan provided a written response to the Third Letter on 27 October 2020. He denied all the allegations.

Investigation report

55      Mr Fussell prepared a report about his investigation, which was approved by Mr August (Investigation Report).

56      The Investigation Report notes that the investigation included:

(a) Review and examination of the 2020 COI form.

(b) Review and examination of TOMS reports.

(c) Interview of prisoner S.

(d) Interview of civilian Trent Franklyn-Smith.

(e) Interview of Principal Officer Graham Carlson.

(f) Interview of Senior Officer Andrew Robertson.

(g) Interview of Security Manager Paul Booth.

(h) Review of Mr Ryan’s response to the allegation letters.

(i) Review of email communication received from Mr Ryan.

(j) Considering and assessing the behaviour of Mr Ryan against the Department’s Code of Conduct, conflict of interest policy and the Public Sector Code of Ethics.

57      Mr Fussell appears to have omitted from this list interviews that the investigators conducted with Ms Narelle Buchanan, who dealt with conflict of interest forms submitted by prison officers from 2010 to 2019, and Mr Jayson Chave (a Senior Officer at Casuarina Prison). The Investigation Report includes a summary of both interviews in subsequent pages.

58      The agreed bundle of documents contains interview transcripts of five interviews with four witnesses: S, Mr Franklyn-Smith, Mr Carlson and Ms Buchanan, which took place between April – August 2020. S was interviewed twice. Transcripts of the interviews with Mr Booth, Mr Robertson and Mr Chave were not before the Commission.

59      The Investigation Report summarises each interview conducted in the course of the investigation, Mr Ryan’s responses to each allegation letter, and the emails Mr Ryan sent to the Professional Standards Division and the investigator, Mr Fussell.

Letter setting out preliminary findings and proposed action

60      On 16 November 2020 Dr Adam Tomison, Director General of the Department of Justice, wrote to Mr Ryan and explained his preliminary findings and proposed action. He included a copy of the Investigation Report for Mr Ryan.

61      In summary, Allegation 1, Allegation 7 and Allegation 8 were not substantiated and no further action was taken in relation to these allegations. Allegation 2, Allegation 3, Allegation 4, Allegation 5 and Allegation 6 were substantiated. Dr Tomison explained that his preliminary view was that Mr Ryan should be dismissed from his employment. He said:

An integral part of your position and duties as a prison officer and as a public servant is to act honestly and with integrity. I hold the view that you have been frugal with the truth. Your response[s] have clearly been designed to assist you and whilst at best misleading, I hold the view that they are false and/or dishonest and that you have lied in your responses [through] the omission of the truth.

62      Dr Tomison invited Mr Ryan to provide written submissions about the proposed action and the Investigation Report within 14 days, suggesting that Mr Ryan include an explanation of his conduct and the reasons why the proposed action should not be taken against him. Dr Tomison said that ‘any submission [Mr Ryan makes] will be considered’ before a final decision is made.

Response to the letter setting out preliminary findings and proposed action

63      On 2 December 2020, Mr Ryan wrote to Dr Tomison by email and provided his response.

Letter of dismissal

64      On 21 December 2020, Dr Tomison wrote to Mr Ryan and confirmed that Mr Ryan was dismissed ‘with immediate effect’, saying:

I have genuinely considered your submission dated 2 December 2020, however:

- nothing in your submission disturbs my preliminary view that you have committed a breach of discipline in relation to allegation 2, 3, 4, 5 and 6; and

- I maintain the view, taking into account your personal factors, that dismissal of your employment is the most appropriate action in this case.

…

Further, each breach of discipline is sufficient for me to take the disciplinary action of dismissal. In other words, each allegation alone is sufficient, in itself, to cause me to dismiss you. I have given no weight to the comment in the investigation report that you have come to the attention of Professional Standards Division on 17 occasions as this is not relevant to the current allegations.

Did the employer conduct an inquiry that was as proper and thorough as necessary?

Mr Ryan’s submissions about the investigation process

65      Mr Ryan argues that the allegations put to him were inadequate or not clearly articulated. Specifically:

1. Allegations 2 and 3 were ambiguous because the type and significance of relationship asserted to have existed between Mr Ryan and S was not made clear to Mr Ryan. Further, it was not made clear to Mr Ryan that the Minister would deem Mr Ryan to have committed serious misconduct ‘merely by admitting to certain facts which were not considered to be contentious.’

2. The assertion implied at 4(h) of Allegation 4 about the reliability of the Minister’s work practices for the registration of declared conflict forms denied Mr Ryan a fair opportunity to respond.

3. Mr Ryan was at a forensic disadvantage in relation to Allegation 5 because he was not given any details of the claim by S that the two engaged in sexual activity prior to about November 2018. In particular, Mr Ryan says he was disadvantaged because he was not told the date the sexual activity was said to have taken place.

4. Mr Ryan was not given an opportunity to address the Minister’s assumption that Mr Ryan would have had prior discussions at some stage with S about S’ incarceration at Hakea Prison in 2013.

66      Mr Ryan’s representative said that ‘in many respects, S was  credible’, although not in relation to not remembering the date that he says he had sex with Mr Ryan. Mr Ryan’s representative said that S was ‘probably being honest’ about not remembering going to Riverview Church with Mr Ryan and that that was a trivial matter. Mr Ryan’s representative submitted that both Mr Ryan and S had been ‘equally unbelievable’. He rightly conceded that it is not accurate to describe Mr Ryan’s relationship with S as being one through church.

The Minister’s submissions about the investigation process

67      The Minister says it is clear from Mr Ryan’s responses to the allegations that he understood what was alleged against him and he engaged meaningfully with the allegations. In relation to Mr Ryan’s submission that the inquiry was insufficient, the Minister says he has complied with the obligation ‘to act fairly and reasonably in the circumstances and gather relevant information that is critical to the issue [of] whether the alleged conduct occurred.’: Drake-Brockman at [109].

Consideration

68      In my view, the Minister acted fairly and reasonably in the circumstances. He conducted a fair, proper and thorough investigation, gathering relevant information that was critical to the issue of whether the alleged conduct occurred.

69      Mr Ryan was given clear, particularised allegations. Contrary to Mr Ryan’s submission, Allegation 2 and Allegation 3 were not ambiguous. It is apparent from Mr Ryan’s responses to the allegations, email correspondence about them and evidence at the hearing that he understood the allegations. That Mr Ryan considered ‘certain facts’ were not contentious is irrelevant.

70      Mr Ryan engaged with the allegations. In each instance Mr Ryan had a reasonable opportunity to be heard. Though he declined to attend an interview, Mr Ryan provided written responses and follow up emails. He had the opportunity to bring forward witnesses. Relevant witnesses were interviewed. Ultimately, Mr Ryan’s witness corroborated aspects of S’ interview.

71      Mr Ryan was able to address the Minister’s assumption that Mr Ryan would have had prior discussions at some stage with S about S’ incarceration at Hakea Prison in 2013. Indeed Mr Ryan addressed that issue in his letter dated 2 December 2020. 

72      Mr Ryan was not ‘at a forensic disadvantage in relation to allegation 5 because he was not given any details of the claim by S that the two engaged in sexual activity’. Mr Ryan understood that sexual activity was alleged and he denied it ever occurred. There were no other witnesses to the alleged events. Being told a date would not have made a difference. There was no forensic disadvantage to Mr Ryan.

73      I am not persuaded by Mr Ryan’s submission that in February 2020 S was motivated to lie about having sex with Mr Ryan so that S could stay at Casuarina Prison. Telling investigators that he had had sex with Mr Ryan was unlikely to mean that S would stay at Casuarina Prison. Further, S gave sworn evidence at the hearing that he had had sex with Mr Ryan.

74      There was no suggestion that another prisoner did anything other than bring Mr Ryan’s relationship with S (much of which was not denied) to Security’s attention.

75      The Investigation Report recorded an accurate summary of the transcripts of the interviews and Mr Ryan’s responses to the allegations. The evidence was appropriately analysed. The content and tone of the Investigation Report shows a fair and balanced approach was taken. The Minister quite reasonably found that Allegations 1, 7 and 8 were unsubstantiated.

76      I reject Mr Ryan’s unsupported submission that the Minister formed an early opinion that Mr Ryan was dishonest and that evidence that supported that view was readily accepted while contrary evidence was ignored or not followed up. I find that the disciplinary process was procedurally fair.

77      In all the circumstances of this matter, I find that the Minister’s inquiry was as proper and thorough as necessary.

Findings from the Investigation Report

78      As I have set out at [75], Allegations 1, 7 and 8 were not substantiated. Allegations 2, 3, 4, 5 and 6 were substantiated.

Allegation 2 and Allegation 3 (about the 2020 COI)

79      Allegation 2 is:

2. On 20 February 2020, at Casuarina Prison, you committed a breach of discipline contrary to section 80(c) of the Public Sector Management Act 1994, in that you committed an act of misconduct by submitting a “Declaration of Conflict of Interest” (PSD0002 Form A), in which you did not declare the true nature of a past personal relationship and association you have had with a prisoner.

Particulars:

(a) You are a prison officer employed by the Department of Justice.

(b) [S], who is currently an incarcerated prisoner at Casuarina Prison, is known to you through your work as a prison officer and outside of work in your private and personal life.

(c) You failed to fully detail your personal relationship and association with [S] when you completed a “Declaration of Conflict of Interest” (PSD0002 Form A), concerning [S] dated 20 February 2020, in that you failed to disclose that;

(i) in 2018, when [S] was not incarcerated, you engaged in sexual activities with [S] on two occasions;

(ii) that in November 2018, you accompanied [S], on an interstate holiday; and

(iii) that [S] has attended your home address;

(d) You breached the Department of Justice Code of Conduct, in particular the standards relating to conflict of interest (clause 3.7) which states we will identify, declare and manage conflicts of interest whether or not those conflicts of interest are actual, perceived or potential in accordance with the Department’s and Government policies.

80      Allegation 3 is:

3. On 20 February 2020, at Casuarina Prison, you committed a breach of discipline contrary to section 80(c) of the Public Sector Management Act 1994, in that you committed an act of misconduct by submitting a “Declaration of Conflict of Interest” (PSD0002 Form A), in which you falsely declared the nature of your relationship with a prisoner.

Particulars:

(a) You are a prison officer employed by the Department of Justice.

(b) [S], who is currently an incarcerated prisoner at Casuarina Prison, is known to you through your work as a prison officer and outside of work in your private and personal life.

(c) You provided a false “Declaration of Conflict of Interest” (PSD0002 Form A), concerning [S] dated 20 February 2020, when you falsely declared that the nature of your relationship with [S] was through his attendance at a church you attend, namely the Riverview Church, when in fact the true nature of your relationship with [S] is that identified at particulars 2(c)(i), (ii) and (iii) above.

(d) You breached the Department of Justice Code of Conduct, in particular the standards relating to personal behaviours (clause 3.1) namely we will act honestly and with integrity in the performance of our duties, in our personal conduct and how we treat others and this includes [sic].

Evidence before the investigators

81      The 2020 COI form is an agreed document. On it Mr Ryan wrote ‘Prisoner [S] has been to my church between prison sentences’ and ‘ex and now again current prisoner [S] attended my church. Things became quite heated though when he began to take drugs.’

82      S was interviewed twice. During his first interview, S said he first met Mr Ryan about eight years earlier when S was imprisoned at Hakea Prison. After he was released, he saw Mr Ryan at a pub. Mr Ryan gave S his phone number but S did not contact him. Their next contact was when S was imprisoned at Casuarina Prison in 2016. In 2017, after S was released from Casuarina Prison, S and Mr Ryan talked via Messenger on Facebook. S stayed overnight at Mr Ryan’s house and the two went on a week long holiday together. Mr Ryan paid for everything. S said that he and Mr Ryan engaged in sexual activities on two occasions. Mr Ryan paid S $50 for oral sex.

83      S said he did not meet Mr Ryan at church and the two did not go to the same church.

84      During his second interview, S said he met Mr Ryan in 2013 at Hakea Prison and he ‘really first met him’ at a bar. S said multiple times that he did not go to Riverview Church with Mr Ryan. S said that Mr Ryan had wanted to go to church with S but S did not want to go with him.

85      S said that after he was released from Casuarina Prison in 2017, he and Mr Ryan would play bingo and poker together. Mr Ryan would always drive him.

86      Mr Franklyn-Smith was Mr Ryan’s witness. He told investigators that he had met S through his brother in around 2006 or 2007 when they had attended youth group. Mr Franklyn-Smith said that S and Mr Ryan were friends from the time they had seen each other at the pub in 2015, saying it was ‘friendship from that point onwards.’

87      Mr Franklyn-Smith said that S and Mr Ryan might have met up a few times after that to play bingo. He described Mr Ryan driving S to play poker every three months or so in 2017. Mr Franklyn-Smith said that S and Mr Ryan went to the Gold Coast together for a week in 2018.

88      Mr Ryan said ‘I am innocent of all allegations raised against me’ but he agreed that he travelled to Queensland with S and that S had been to his home address. He said: ‘The only major particular that I object to is the presence of a sexual relationship.’ Mr Ryan said that leaving aside the allegation of sexual activity, ‘it appears that the only issue is perhaps that my level of detail in the COI could have been more detailed in your view’ and ‘I have denied the sexual part of the allegations, however, it was inappropriate to ask these questions as two incidents would not constitute the “nature of the relationship”’. Further, Mr Ryan said: ‘Comments about two sexual incidents are inappropriate, discriminatory and homophobic in nature. Although denied, a sexual incident with someone would not necessarily change the nature of a relationship.’

89      Mr Ryan said: ‘S is lying about having sex with me. I completely deny this allegation. Also, [S] has most certainly attended Riverview Church’.

90      Mr Ryan said ‘I declared what was accurate, I initially asked to be moved, but an investigation was done instead and I reported everything over and above what was necessary and handed in the form.’ Further, Mr Ryan said:

When [S] was released, he attended Riverview Church and we reengaged in a social friendship. This association was born out of his attendance at Church so the declaration I made was correct. I did not feel it my duty to expand on this for two reasons 1.) I had already submitted a COI that stated there was a social friendship (even though Dept now claiming they do not have it) 2). If the form was not clear, my actions certainly were when I asked to be moved… All claims about Church are about how that re engagement began.

Evidence given at the hearing

91      It is not in dispute that although part (c)(ii) of Allegation 2 refers to Mr Ryan and S having gone on an interstate holiday in 2018, the holiday actually took place in 2017.

Mr Ryan’s evidence

92      Mr Ryan gave evidence he met S in 2015 at a pub. He gave S his number and they caught up a few times in 2015. They played bingo, went to pubs to play poker and perhaps went to movies as well. 

93      Mr Ryan said that a short time after he was transferred to work at Casuarina Prison in January 2016 he saw S there. Mr Ryan raised the matter with Mr Carlson who told him to put in a COI. Mr Ryan’s evidence is that he handed the 2016 COI that day to Ms Buchanan. On the 2016 COI he wrote ‘just that we were social friends and that I met [S] at the Carlisle Hotel… the association was that we were friends.’

94      Mr Ryan said that in 2017 when S was out of prison S messaged Mr Ryan on Facebook. S came to Mr Ryan’s church ‘a few times.’

95      Mr Ryan gave evidence:

When was the next time then that you heard from [S] after he left Casuarina Prison?‑‑‑So he contacted me in 2017.  I'm not sure of the exact time but it would have been around, you know, not long after he got released because I sort of remember the conversation, so it was obviously after he got released.  He messaged me on Messenger on Facebook but he had done that previously because of the Carlisle Hotel and he - he already had my contact details.  Um, "I'm out, I never want to go back to prison again.  I'm doing really well.  I want to develop a good relationship with God.  Um, all that sort of stuff that was really bad that I went to prison.  I want to get my life in order.  Everything's going - been going great since I got out.  I'm talking to my mum".  General.

You said that he wanted to develop a good relationship with God.  Did that influence what happened next?  What happened next after that?‑‑‑Yeah.  So he obviously -I knew that he went to church at the prison and that he had a history and I'm happy to concede either way but either I invited him to my church, which was Riverview, or he asked if he could come.  I'm - I - I don't recall which way it went but I'm happy to say that, you know, if that - that I invited him.  Ah, it's a large church with, you know, a few thousand people that go each week at - at that time especially.  Um, so it's one of those Hillsong type churches, jumping up and down and sort of stuff.  And so he - he came a few times.

96      In cross-examination Mr Ryan said that he regularly saw S outside of church in 2017, they played bingo and poker together and also went to the movies. Mr Ryan would drive S around. S visited Mr Ryan’s home at least a few times. Mr Ryan organised and paid for most of a five day holiday he and S took together on the Gold Coast where they shared a standard room with one bed. Mr Ryan said:

It was, ah - it actually, you know, even after thinking about all of what's gone on now, um, it was a really great trip.  Um, I guess [S], ah, maybe enjoyed it even more than me.  He - apparently he'd never been on plane, he'd never been to theme parks.  We actually did a helicopter ride, which was, ah, you know - it was actually a really, really, really good time.  There was no arguments, it was - cos as you can see there was only five days there and if you sort of disclude the travelling days it was actually theme park, theme park, theme park, theme park plane ride home.  So it was a - it was just a - a whirlwind time of fun for a few days and then coming back, it was great.

97      According to Mr Ryan, he and S had a falling out a few months after their holiday because S was on drugs and asking Mr Ryan for money. Mr Ryan will not associate with anyone taking drugs because his sister died of a drug overdose.

98      Mr Ryan’s evidence is that his next interaction with S was when he saw S’ name on the unit sheet at Casuarina Prison in February 2020. Mr Ryan immediately rang Principal Officer Carlson and said ‘I need to be moved, I need out because… last time we saw each other it wasn’t overly pleasant.’ Mr Carlson told Mr Ryan he would get back to him about the matter. While Mr Ryan was waiting to hear back from Mr Carlson, a Senior Officer told Mr Ryan to speak to S. That Senior Officer and Mr Ryan brought S to the Senior Officer’s office for a discussion that they called ‘a mediation’. S said that he did not want to leave Casuarina Prison because he had a good job there. Mr Ryan says that he told S that he could not have S telling prisoners about him because S ‘knows some of [his] social background and our social background.’ S promised that he would never say anything.

99      After that ‘mediation’, Mr Ryan explained to Mr Carlson that he thought everything was okay that he ‘really [did not] care either way.’ Mr Carlson told Mr Ryan to ‘let obviously Security know, do another conflict of interest form.’

100   Mr Ryan gave evidence about his 2020 COI and said his reference to ‘[S] may talk about me to other prisoners and staff negatively’ was because ‘S has plenty of information about me, not necessarily negative, but he’s, you know, he – you know, we’d been on a holiday, you know, all that sort of stuff’.

101   Mr Ryan’s evidence is that he was confused about what Allegation 2 was accusing him of:

They’re saying the nature of your relationship is an interstate holiday and your nature of your relationship is that he attended your home address, which is they’re not natures of relationship. I – I don’t know what- what they’re trying to say when – when they’re saying that, that the true nature is – is these things when they’re not natures, they’re - they’re events.

102   Mr Ryan denies that he has ever engaged in sexual activities with S and says ‘sexual activity which may – may or may not define a nature of a relationship but it’s not a – that in itself is not – is not a nature of a relationship.’

103   Mr Ryan agreed in cross-examination that:

a. It is important that prison management know if a prison officer and a prisoner have an association or a relationship. One reason for this is that such an association or relationship could make it difficult for a prison officer to do the job.

b. If a prisoner knows things about a prison officer and talks to other prisoners about it, that could affect a prison officer’s ability to do the job.

c. Embarrassing secrets could open the door to blackmail or similar.

d. It is important that prison management and the Department can trust a prison officer to do the job properly.

e. A person deciding how to manage conflicts of interest needs enough information to make a proper decision and an accurate picture of the conflict to decide how to manage it.

104   Mr Ryan’s evidence is that a person looking at the 2016 COI and 2020 COI would have all the information needed to make an informed decision about how to manage the conflict he raised about S.

105   Mr Ryan agreed that he knew Mr Booth did not have the 2016 COI, saying ‘that’s why I’ve given him extra information about the form that was missing’ but denied that Mr Booth would make a decision based on the 2020 COI and his email.

106   In cross-examination Mr Ryan agreed that he and S ‘hung out very minimally in 2015’ but Mr Ryan would not accept that his relationship with S was closer in 2017 than it had been in 2015. Mr Ryan said that they were friends and the nature of the relationship did not change.

107   Mr Ryan denied that his email to Mr Booth implied that his argument with S happened at church. Mr Ryan did not agree that Mr Booth would be left with the impression that the extent of his relationship with S was that they had met through church and ‘that was it’. Mr Ryan repeatedly insisted that Mr Booth could have asked Mr Ryan questions about the 2016 COI that Mr Booth said could not be found, notwithstanding that Mr Booth had told him to resubmit the form.

108   In cross-examination Mr Ryan said that by putting in the 2020 COI, he ‘resubmitted’ the form. Mr Ryan denied that his writing ‘previously lodged’ on the 2020 COI meant that the conflict raised in the 2020 COI had been previously lodged.

109   Mr Ryan denied that he gave information to Mr Booth that meant that Mr Booth was not making a decision based on an accurate picture of the relationship between Mr Ryan and S.

110   Mr Ryan agreed that in COIs that related to several other prisoners he had declared whether they knew his address or had visited his house. He agreed that he had included those details because they were relevant and important. Despite knowing that, he did not include them in the 2020 COI about S. Mr Ryan said ‘Because – because they were provided in a – a different form but yes.’ Mr Ryan did not say in which form those details were provided.

111   Mr Ryan said that his statement in his email to Mr Booth that: ‘If you look at when [S] got out from his last stint – (maybe 12-18 months ago) I submitted it about 6 weeks after he got out’, was a mistake. It should have been 2016 when S was at Casuarina Prison. Mr Ryan agreed that looking at that email, he knows straight away that it is not right because he put the 2016 COI in when S was in prison, although Mr Ryan responded to this part of the particulars without saying it was not right.

112   Mr Ryan was cross-examined about his response to the sexual aspect of the allegations:

Mr Ryan, your response to, I guess, the sexual aspects of the allegations ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ is to say that it's inappropriate for the Department to even ask those sort of questions, is that right?‑‑‑Ah, to a degree.

What do you mean by, "To a degree"?‑‑‑Well, it depends on – well, what I said – what I have said is, the – the sexual content – and the sexual contact between people is not necessarily the – the nature of – of the relationship.  So if somebody puts down that this person is my wife, they don't then write, "And we have sex three times a week", or, "We have sex six times a month", the actual act of the sex, the vagina, the anus, the penis is actually not the issue of the conflict of interest.  The actual – the actual issue is the relationship that they have.  So some people are friends, and some people have sex as friends, some people don't.  Some people are married for 20 years and don't have any sex, some people are disabled and don't have sex.  So I've indicated that the actual, you know, penetration or the – the actual sexual act is not – not the business of the Department.  Um, the only way that possibly would be – would be correct is if the only connection between the two people is sexual.  So they met on Tinder, sex, met, sex – and then, that was it.  I mean, that – possibly, you would have to indicate it was a sexual thing, but you don't need to indicate, ah, sexual connotation.  The form is not a Mills and Boons book.

I'm not suggesting it is, Mr Ryan, but you would agree that you need to give enough details to let Security work out how close the relationship is?‑‑‑Your – your question was – was – was about the sex, and no, I don't think, ah, speaking about penises and vaginas in a – in a conflict of interest form is necessary or appropriate, because the question is about the – the nature of the relationship.  And nature – if someone says, "What's your nature of a relationship to someone?"  You don't say, "Sex", it's mother, father, friend – you know.  And then, whatever – you know, other information, but the sex is not something that I would – I would know that officers actually write on their forms.  So the expectation for me to write it on the form I don't think was – was appropriate.

You would agree that – to go back to my earlier question, you would agree that you need to give enough information so that Security can work out how close the relationship is?‑‑‑Yes.

And you would agree that sometimes, sex can be relevant to that?‑‑‑Ah, as I said, in (indistinct 2.16.52) case, if the relationship was based on sex and only sex, then, that is the nature of the relationship, it is a sexual – it's not a de facto, it's not a – not a – not a friendly – it's actually that we literally just meet for sex – then, that would be a thing.  But no, otherwise, aside from that one example, then, no, sex wouldn't be relevant.

So in this case, where you haven't declared that aspect of your relationship with [S] – and that's on either the 2020 form or the 2016 form, where you say you just said, "We're social friends", you say that even if the sex was true, you've done nothing wrong and you didn't need to include it, is that right?‑‑‑I wouldn't include sexual contact on the form unless it was the basis of the relationship in answering the question, which is, "What is the nature of the relationship?"

All right.  So you say, even if that was true, even if those sexual activities did happen, you didn't need to include them or mention them or say anything more on the form than what you did, is that right?‑‑‑I – I would not write on the form ‑ ‑ ‑

EMMANUEL C:   No, you need to answer the ‑ ‑ ‑ ?‑‑‑Oh, sorry.

‑ ‑ ‑ exact question that's being put to you.  So this is what I meant about cross-examination ‑ ‑ ‑?‑‑‑Sure.

It's ‑ ‑ ‑?‑‑‑Sorry.

‑ ‑ ‑ closed, you say, "Yes", or, "No", and Mr Fordham can get you to elaborate if he wants ‑ ‑ ‑?‑‑‑Okay.

‑ ‑ ‑ to?‑‑‑Sorry.

Do you want to say that again, Mr Pack?‑‑‑Sorry.

PACK, MR:   So just to be clear, you've heard what [S] has to say ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ you say that, even if that was true, even if there was that sexual aspect to your relationship, you didn't need to include it on the 2020 form, and you didn't need to include it on this 2016 form?‑‑‑Correct.

All right.  And so you say, even if that's true, you've done nothing wrong?‑‑‑That's correct, yes.

Right.  And so you would say that if you were in this position again, where there was someone else who you had a similar kind of relationship with and it includes the sexual aspect as well, you would, again, not declare that?‑‑‑If I was friends with someone and been on holidays with them, gone to the movies, done all that sort of stuff, and there was one sexual act between – between me and the person, no, I wouldn't put that on the form, no.

113   Mr Ryan agreed that he did not record the fact of S coming to his home and going on holiday with him on the 2016 COI. Further, he agreed that he met S in Perth in 2015 in the period when Mr Ryan had told his employer in one of his emails responding to the first set of allegations that he was not in Perth.

114   Mr Ryan denied that the way he phrased his email downplays the chance that Mr Ryan could have had anything to do with S before 2016.

S’ evidence

115   S’ evidence is that he first met Mr Ryan when he was in Hakea Prison in 2013. He then next saw Mr Ryan in 2015 when they met at a pub. S said: ‘Oh hey, I remember you from Hakea’ and they spent some time talking together that night. Mr Ryan said he could help S out. He showed S his bank account and said something to the effect of ‘I work very hard for this, you know. You could have this too if you work very hard.’ Mr Ryan gave S his phone number on a piece of paper but S lost it.

116   S gave evidence that he had no further contact with Mr Ryan until 2016 when he was in Mr Ryan’s unit at Casuarina Prison.

117   When S was released from prison in March 2017 he contacted Mr Ryan on Facebook. They spoke about hanging out, maybe going to the movies. Mr Ryan asked him if he wanted to go to his church or hang out and come to his house.

118   S and Mr Ryan then spent time together, going to poker, bingo and the cinema. S did not have a car and was not working. Mr Ryan would pick S up. S never paid for anything. In November 2017 they went to the Gold Coast together.

119   Somewhat reluctantly, S gave evidence that he engaged in sexual activities with Mr Ryan on two occasions. He said he would have asked for money at the time because he did not have any and he needed it to pay for weed. He was a ‘bad drug addict at this point’. S described he and Mr Ryan first engaging in sexual activities in September or October 2017, a bit before their trip to the Gold Coast in November. There were two occasions. Both took place on Mr Ryan’s bed in his home. Mr Ryan paid S $50 the first time and after the second time Mr Ryan paid for the trip to the Gold Coast. They went to Movie World, Wet‘n’Wild, Sea World and played poker. Their relationship ended after the holiday. S thought it was because: ‘Maybe he’d had his time with me and he’d had enough of me. Because no sexual act happened on the travel, the trip.’

120   S’ evidence is that Mr Ryan ‘never asked [him] to pay for the flight or the hotel or anything.’

121   S said that he had been to Riverview Church but not with Mr Ryan. He never saw Mr Ryan at church. When Mr Ryan spoke with him in 2020 in Casuarina Prison, Mr Ryan asked S if he told anyone where Mr Ryan lived or about his personal life. S told him that he had not. But S had actually told other prisoners and prison officers that he had gone to the Gold Coast with Mr Ryan and that they had had sex.

122   S gave evidence that he was reluctant to speak to investigators. He was depressed at the time and was angry that he was being investigated. He was ashamed about the sexual interactions with Mr Ryan. Since then, S has turned his life around. He is married with a son, clean and going to Narcotics Anonymous. S spoke passionately about being a new person with a good future ahead of him.

123   The first thing S said in cross-examination was:

Um, I never wanted Mr Ryan to get fired, you know.  I feel bad he got fired, you know.  I'm not here to try and, you know, plead his case or whatever, you know.  I'm not - I don't want to do - make him look worse than he is, right, cos that's just - that's me, cos that’s his livelihood, you know.  That's his - that's a career, yeah.

124   S agreed that Mr Ryan spent a lot of money on him. S denied that he had changed his story about how he had had sex with Mr Ryan. While S could not remember the exact date he had had sex with Mr Ryan, he insisted that Mr Ryan paid him $50 the first time and then after the second time Mr Ryan paid for the holiday to the Gold Coast.

125   In cross-examination S said that Mr Ryan got a LOP (loss of privileges) dropped for S but agreed that in the interview with investigators S had said that Mr Ryan did not do anything for him.

Mr Booth’s evidence

126   Mr Booth gave evidence that he manages conflicts of interest at Casuarina Prison. He reviews conflict of interest forms and makes risk assessments based on the information provided.

127   Mr Booth said that it is very important that prison officers declare any conflict of interest they may have with a prisoner because of the potential for grooming or being pressured to bring contraband into the prison. There are different strategies that may be used to manage a conflict of interest. To do so effectively involves knowing the type of association or relationship, as well as its length and seriousness.

128   Mr Booth’s evidence is that it is very difficult to manage a conflict of interest if a prison officer lies on a conflict of interest form.

129   Mr Booth said that there was no record of the 2016 COI having been made and he has no recollection of the 2016 COI.

130   Mr Booth gave evidence that he would have asked for further information if he had received a COI that said a prison officer had known a prisoner ‘in a social capacity as friends’.

131   Mr Booth’s evidence is that he understood from the 2020 COI and Mr Ryan’s email that S and Mr Ryan had attended the same church and had had an issue about S using drugs. Considering those two documents and what was said about the ‘mediation’ between Mr Ryan and S, Mr Booth concluded that it was not necessary for S or Mr Ryan to leave Casuarina Prison.

132   Mr Booth said that it absolutely would have affected his decision if Mr Ryan had declared a closer personal relationship with S, one that included a holiday and visits to his home. If Mr Booth had known that, it is likely that S would not have remained at Casuarina Prison. If Mr Ryan had said that he had paid S for sex, that would also have affected Mr Booth’s decision about the conflict of interest. In cross-examination Mr Booth said that a sexual relationship between a prison officer and a prisoner was very significant.

133   Mr Booth gave evidence that if Mr Ryan had declared that he had been on holiday with S and that S had gone to Mr Ryan’s house then Mr Booth would have decided it was not appropriate for S to remain at Casuarina Prison.

134   In cross-examination Mr Booth agreed that he could not be sure that he remembers every COI that is submitted and also that sometimes people ‘get it wrong’ and do not put enough information on the COI form

Consideration

135   I consider that it was open to the Minister on what was before him to find that Allegation 2 and Allegation 3 were substantiated.

136   The 2020 COI, Mr Ryan’s written responses to the allegations and his emails show that he did not disclose the true nature of his relationship with S.

137   Plainly Mr Ryan’s 2020 COI, even if read with what he says he wrote on the 2016 COI, did not disclose the true nature of his relationship with S. It is not in dispute that Mr Ryan did not disclose that he and S went on an interstate holiday together and that S had been to Mr Ryan’s home.

138   Mr Ryan did not fully detail his association with S and in doing so he misled the Department. Mr Ryan gave false information to the Department in the 2020 COI when he described the association or relationship being declared as S ‘has been to my church between prison sentences’.

139   Further, based on the evidence led by the parties at the hearing, I make the following observations about Allegation 2 and Allegation 3.

140   As set out at [30], I prefer the evidence of S to that of Mr Ryan. I accept S’ evidence that he did not attend the same church as Mr Ryan. But even if he had, on Mr Ryan’s evidence alone it is clear that the association between Mr Ryan and S went considerably further than merely attending the same church.

141   They were friends who regularly socialised. Their relationship was significant enough that Mr Ryan paid for their social activities and the significant expenses associated with their holiday to Queensland. I find that, at the very least, Mr Ryan and S had a close social relationship.

142   I do not consider that it is necessary to make a finding about whether there was any sexual activity between Mr Ryan and S. It was not put to S in cross-examination that S was lying about having sex with Mr Ryan. As set out above at [30], I accept S’ evidence. If it were necessary to make a finding about sexual activity in this case, I would find that there was sexual activity between Mr Ryan and S.

143   Nothing in Mr Ryan’s written responses to the allegations nor his evidence lead to a finding that Mr Ryan disclosed the true nature of his relationship with S.

144   Mr Ryan significantly downplayed his association with S.

145   If, as Mr Ryan argues, his 2020 COI was ‘an update’, it was a wholly inadequate update. It did not provide the new and relevant information his employer would need in order to consider how to manage Mr Ryan’s association with S.

146   Having rightly conceded in cross-examination that a decision maker considering COI forms makes a decision based on the information provided, and that whether a prisoner had been to his home or knew his address were relevant considerations for a decision maker to take into account, it is simply not believable that Mr Ryan was unaware of the need to declare that:

1. S had been to his house;

2. Mr Ryan had regularly socialised with S;

3. when socialising with S, Mr Ryan would pay for S and drive him to and from venues; and

4. Mr Ryan paid for S to go with him on a holiday to Queensland.

147   Mr Ryan’s submission that he genuinely thought the matters set out from points 1. to 4. at [146] did not characterise his association with S is simply not credible. I cannot accept it.

Allegation 4 (about the 2016 COI)

148   Allegation 4 is:

4. On or around 29 January 2016, at Casuarina Prison, you have committed [sic] a breach of discipline contrary to section 80(c) of the Public Sector Management Act 1994, in that you committed an act of misconduct by failing to submit a ‘Declaration of Conflict of Interest’ (PSD0002 Form A), disclosing the past personal relationship and association you had with a prisoner.

Particulars:

(a) You are a prison officer employed by the Department of Justice.

(b) On 29 January 2016, you commenced work in Unit 6 at Casuarina Prison.

(c) At the time, [S] was a prisoner in Unit 6 at Casuarina Prison.

(d) You had a prior association or relationship with [S] having met him in a social setting sometime before 19 August 2015 and prior to your commencement at Casuarina prison [sic] on 29 January 2016.

(e) In you written response to the allegation letter you provided on 29 May 2020, you state, ‘[S] already had my number, as I knew him before he was incarcerated.’

(f) [S] had previously been ‘incarcerated’ at Hakea Prison, Unit 8 between 10 May 2013 and 13 August 2013, where you were employed in Unit 8 as a prison officer up until 12 January 2014.

(g) On 17 February 2020, in an email to the Assistant Superintendent Security, you state you had ‘submitted it about 6 weeks after he got out’ in reference to a ‘Declaration of Conflict of Interest’ (COI) involving [S].

(h) There is no COI from you in 2016 or 2017, noted in the Registry of Declarations in circumstances where the practice was that all COIs received were registered.

(i) [S] was transferred from Casuarina Prison on 14 November 2016 and released to freedom on 1 March 2017.

(j) You breached the Department of Justice Code of Conduct, in particular the standards relating to conflict of interest (section 3.7) which states we will identify, declare and manage conflicts of interest whether or not those conflicts are actual, perceived or potential in accordance with the department and government policies.

Evidence before the investigators

149   Initially, in his email to Mr Booth dated 18 February 2020, Mr Ryan said about the 2016 COI:

If you look at when [S] got out from his last stint – (maybe 12-18 months ago) I submitted it about 6 weeks after he got out.

150   In his written response to the allegation relating to the 2016 COI, Mr Ryan said:

[S] already had my number, as I knew him from before he was incarcerated. A COI form was put in at the time, however, Security Manager Booth has stated that he cannot find it on record. This in itself is concerning. The Department holds strong value in these matters yet does not send a receipt to prison officers for a record. The email from Mr Booth acknowledging not having the form was sent in months ago, prior to any investigation, suggesting the missing form was not part of any defense [sic] for the allegations today, but a truthful exchange to the Security Manager.

151   Later, in an email to Mr Fussell dated 12 June 2020, Mr Ryan said:

2. The conflict of interest was handed in - this was a follow up COI to the previous one that was allegedly not received at Casuarina Prison. The nature of the two of us re engaging in contact was through his attendance at my Church, hence why it says that on the form. The social aspect was on the first form.

3. On 16th February, the prison was made aware of everything and that there was at least a mention of an existence of a first COI. That means that at the very least, Security were aware of the new COI and that one existed before that one and had the option at that point to check with me as to what the first one said, how I knew [S] etc. They chose not to.

152   In a further email to Mr Fussell dated 20 June 2020, Mr Ryan said: ‘An original COI was handed in 2016. This was alluded to prior to any investigation.’ He also said:

5. The second COI was an updated COI as he was now in prison - the correct box was ticked and the description was correct as the re association with him happened through Church.

6. I do not believe it is within our guidelines to keep updating the form (now we went to McDonalds, now we went to the cinema) as the COI has been made.

7. Comments about two sexual incidents are inappropriate, discriminatory and homophobic in nature. Although denied, a sexual incident with someone would not necessarily change the nature of a relationship

8. There would be nothing gained from misleading the Department on the form - I knew him and we had a falling out because he was back on drugs which I will not stand for. I declared what was accurate, I initially asked to be moved, but an investigation was done instead and I reported everything over and above what was necessary and handed in the form. I have nothing to gain not writing accurately on the form.

9. Security had the form and were told there was a missing first one and chose not to follow up and ask what was in the original COI and do their own investigation

153   In his response to the second letter of allegations, Mr Ryan said:

It seems to be that if you had the first COI on record there would be almost no issue. How many times can it be said that I put that form in. You did not receive it. I put in another one on my first day back. I should not be punished for a filing error by others.

154   Finally, in his letter to the Director General in response to the proposed action of dismissal, Mr Ryan said:

The Missing COI Form

It is alleged that the missing COI form was never handed in and I make the inference in the claims that PSD believe it was never handed in. I offer this:

1. Ms Bucchanan [sic] evidence is that mistakes can and have happened and apologises if she did receive the COI form and it went missing

2. Casuarina Management have a clear record of lying when it comes to admitting that I have handed in a document – see above regarding secondary employment and the Belfield COI form.

3. PSD do not seem to accept this as a possibility

4. There is no receipts for handing in these important documents

5. 4 secondary employment forms have gone missing in the same manner as this COI form

6. Belfield COI form is noted as being on the system but PSD cannot locate the actual form

155   Mr Carlson spoke to investigators about the conflict of interest forms. He said that when Mr Ryan returned from annual leave in February 2020 he raised with Mr Carlson a conflict of interest in relation to S that Mr Ryan said he had previously raised. Mr Carlson told him that he would ‘have to re-submit that paperwork.’ Mr Ryan said he understood and then around 10 minutes later Mr Ryan raised the issue with Mr Carlson again. Mr Carlson said that he told Mr Ryan that it was a new conflict of interest, he would have to resubmit the form. Mr Carlson told Mr Ryan to immediately speak to Security about it.

156   Mr Carlson later told the interviewers that Mr Ryan again questioned whether he needed to report the conflict of interest, saying that he had previously put in a conflict of interest for the prisoner and ‘circumstances haven’t changed.’ Mr Carlson said ‘Absolutely, you do. You need to leave the unit and go down to Security and do that immediately.’

157   Mr Carlson said he vaguely remembered Mr Ryan raising the first conflict of interest with him and that he told Mr Ryan to report it directly to Security.

158   Ms Buchanan was also interviewed. She was Security Administration Officer from May 2010 until May 2019. Ms Buchanan described the process used when staff submit a conflict of interest. She said that staff would fill in the forms and bring them to Security. She would then check the form and get the ‘SO’ to sign it, or if the matter was more significant, such as current relationships, she would take the form to Mr Booth to sign. After Mr Booth had signed the form, Ms Buchanan would then scan and email the form to Corruption Prevention, requesting a receipt to show that it had been read. She would then file the form in hard copy under the officer’s name and record the information in the conflict of interests register.

159   Ms Buchanan could recall only one conflict of interest that related to Mr Ryan and it was not about S.

160   Ms Buchanan told investigators that she was always very careful with conflict of interest matters ‘because that type of thing, you know, comes back to bite the officer.’  She does not remember Mr Ryan handing a form to her in 2016 as he describes. She would not leave such a form lying around, she would put it straight away on the boss’ desk for signing. Ms Buchanan said she was confident that if she was given a conflict of interest form, she would record it in her conflict of interests spreadsheet, email it to Corruption Prevention and put a hard copy in the officer’s file.

161   Ms Buchanan described being very careful and diligent with conflicts of interest. She also spoke about the importance of owning up immediately if she had made a mistake. Ms Buchanan was very clear that she simply had no memory of Mr Ryan handing her a conflict of interest form about S.

Evidence given at the hearing

162   Mr Ryan gave evidence that in 2016 he submitted the 2016 COI form that said: ‘I know [S] on a social basis on the outside.’ Mr Ryan also said the 2016 COI form said as ‘social friends’. In cross-examination Mr Ryan said that although in his email written in June 2020 he said that he submitted the form about six weeks after S got out, which was maybe 12-18 months before he wrote the email, Mr Ryan is ‘happy to – to concede that the time – [he had] written maybe 12 to 18 months but maybe it was actually two years.’

163   Mr Booth’s evidence about this matter is set out at [126] to [134].

Consideration

164   It was open to the Minister on what was before him to find that this allegation was substantiated.

165   Mr Ryan gave evidence that on seeing S in prison in 2016, Mr Ryan spoke to the Principal Officer and submitted a conflict of interest form the same day. His email said: ‘If you look at when [S] got out from his last stint – (maybe 12-18 months ago) I submitted it about 6 weeks after he got out.’

166   Mr Booth’s evidence was that there was no record of Mr Ryan submitting the 2016 COI and Mr Booth could not remember it having happened. Ms Buchanan told investigators that she could not remember Mr Ryan submitting the 2016 COI form and she was very careful with such forms.

167   I am not persuaded by Mr Ryan’s evidence about submitting a COI in 2016. I say that because of what was said by Mr Booth and Ms Buchanan and also because it is at odds with Mr Ryan’s own email. Mr Ryan could not explain why he had written that he submitted the 2016 COI about six weeks after S got out from his last stint. Mr Ryan agreed that that would have meant that (according to his reference to 12 – 18 months ago) he submitted it in around 2019. Even if Mr Ryan had meant two years earlier, it still would not have been submitted in 2016. On the evidence before me, I find Mr Ryan did not submit the 2016 COI.

168   But even if Mr Ryan did submit the COI in 2016 as he describes, I do not agree with Mr Ryan’s submission that ‘if [the Minister] had the first COI on record there would be almost no issue’. Even if Mr Ryan did submit the COI in 2016 as he describes, in my view that would not make a difference to the outcome in this matter for the reasons set out at [145]-[147].

Allegation 5 (about Mr Ryan’s responses to the allegations)

169   Allegation 5 is that:

5. On 29 May 2020, you have committed a breach of discipline contrary to section 80(c) of the Public Sector Management Act 1994, in that you committed an act of misconduct by providing false, dishonest and/or misleading information in your responses to an allegation letter dated 21 May 2020.

Particulars:

(a) You are a prison officer employed by the Department of Justice.

(b) On 29 May 2020, you provided a response to an allegation and suspension letter served on you and dated 21 May 2020.

(c) In your response you state, ‘A COI form was put in at the time’ and ‘I had already submitted a COI that stated there was a social relationship’.

(d) Staff involved with the Conflict of Interest process state that [a] COI was not submitted and you had previously been advised by the Assistant Superintendent Security on 17 February 2020 that a ‘Declaration of Conflict of Interest’ for [S] was not located and you were requested to resubmit.

(e) You have received detailed training in the module ‘Accountability and Ethical Decision Making’ which included the obligations of the Code of Conduct and the requirements to report conflict of interest issues.

(f) You have been subject to two Local Management Outcomes concerning the requirements and submission of a COI.

(g) You have subsequently completed two on-line refresher courses on 12 November 2015 and 20 July 2019.

(h) Having received training, completed two on-line refresher courses and been subject to Local Management Outcomes regarding COI, you were well aware of your obligations regarding the Department’s Conflict of Interest Procedures and Guidelines.

(i) In your response to the allegation letter and your email response to the investigator dated 20 June 2020, you confirm that you accompanied [S] on an interstate holiday in 2018 and that he had visited your home.

(j) Your COI which you state you completed in 2016, would not have included the details of the interstate holiday or home visit.

(k) Furthermore you state that you ‘did not have a sexual relationship’ with [S] but that you reengaged in a social friendship when he attended Riverview Church.

(l) When [S] was interviewed in April 2020, he stated that on two occasions, prior to the trip to Queensland, he had sex with you and that he has never met you at Riverview Church.

(m) The COI submitted in 2020 failed to declare the true nature of your past personal relationship and association with [S].

(n) Your responses regarding the submission of a ‘Declaration of Conflict of Interest’ [sic] in 2016 are false, dishonest and misleading and by providing such, you have engaged in an act of misconduct breaching the Department of Justice Code of Conduct, in particular the standards relating [to] Personal behaviour and honesty (section 3.1) which states we will act honestly and with integrity in the performance of our duties and in our personal conduct.

Evidence before the investigators and given at hearing

170   The evidence about this allegation is set out above in relation to Allegation 2 and Allegation 3.

Consideration

171   It was open to the Minister on what was before him to find that Allegation 5 was substantiated.

172   Mr Ryan misled the Department when he declared his association with S in 2020. Even if Mr Ryan did make the 2016 COI, declaring that he knew S on ‘a social basis on the outside’ or that there was a social relationship, on the evidence it is clear that his association with S was closer in 2017 than it had been at the time Mr Ryan said that he submitted the 2016 COI. When Mr Ryan put in his 2020 COI he was aware that the Department did not have a record of an earlier COI in relation to S. Mr Booth had asked Mr Ryan to resubmit the earlier COI. Mr Ryan did not resubmit the earlier COI. Mr Ryan’s 2020 COI does not declare the true nature of his association with S. Read alone or read with Mr Ryan’s email exchanges with Mr Booth, Mr Ryan’s declaration leaves the reader with the impression that his association with S is one of two people who have attended the same large church. That is entirely different to the reality, even on Mr Ryan’s version of events. Mr Ryan was dishonest.

173   Over a period of up to eight months, Mr Ryan and S regularly socialised together. Mr Ryan regularly paid for S to participate in poker and bingo and to go to the cinema. Mr Ryan paid for an interstate holiday that included visits to theme parks, a helicopter ride and meals. S’ flights alone cost more than a thousand dollars.

174   Mr Ryan spent a material amount of time with and money on S. Even if S did attend Riverview Church three times, the association was still significantly closer, and of a very different nature, than Mr Ryan said it was.

175   In his email to Mr Booth, Mr  Ryan said:

I attend a church called Riverview with over 2000 members – its [sic] like one of those big Hillsong churches. There is some affiliation with Peter Lyndon James with Shalom House as he attends there. So it is unsurprising that we get ex prisoners come in.

176   Mr Ryan conceded that S did not attend the church because of Mr Lyndon-James or have any connection with Shalom House. It is open to me to infer, and I do, that Mr Ryan included that information to give the Department the impression that S had come to attend Riverview Church for reasons unconnected to Mr Ryan. Mr Ryan was trying to convey that his association with S was remote.

177   Mr Ryan gave incomplete and inaccurate information to investigators about this allegation. That incomplete and inaccurate information inevitably gave a false and misleading impression of his relationship with S. I consider that Mr Ryan’s responses to the Department about the 2016 COI were false, dishonest and misleading.

Allegation 6 (about Mr Ryan’s conduct during the disciplinary investigation)

178   Allegation 6 is that:

6. On 12 June 2020, you have committed a breach of discipline contrary to section 80(c) of the Public Sector Management Act 1994, in that you committed an act of misconduct by providing false, dishonest and/or misleading information in your responses to a disciplinary investigation.

Particulars:

(a) You are a prison officer employed by the Department of Justice.

(b) On 12 June 2020, you were provided a letter inviting you to be interviewed following your written submission provided by you on 29 May 2020.

(c) In an email response from you to the investigator dated 12 June 2020, you state, ‘I met [S] for the first time in 2016 and was not aware that [S] was ever in prison prior ti [sic] 2016.’

(d) [S] had previously been ‘incarcerated’ at Hakea Prison, Unit 8 between 10 May 2013 and 13 August 2013, where you were employed in Unit 8 as a prison officer up until 12 January 2014.

(i) On 15 May 2013, whilst working as a prison officer at Hakea Prison, you accessed the record of [S] on the Total Offender Management Solution (TOMS) restricted access database on two occasions and viewed a total of thirteen records.

i. On the first occasion you accessed TOMS records associated with: Offender Log; Supervision Log and Remand Warrant.

ii. On the second occasion you accessed TOMS records associated with: Offender Log; Entity Alerts; Supervision Log and ARMS.

iii. Whilst in the ARMS record you recorded the entry: “On arrival he stated that while he was fine he felt vulnerable. I gave him a tour of the prison and encouraged him to speak to officers should he have any concerns.”

(ii) On 27 July 2013, you accessed the name of [S] on TOMS on one occasion and viewed TOMS records associated with: Offender Log.

(e) Your response [sic] regarding a prior relationship or association are false, dishonest and misleading and by providing such, you have engaged in an act of misconduct breaching the Department of Justice Code of Conduct, in particular standards relating Personal behaviour and honesty (section 3.1) which states we will act honestly and with integrity in the performance of our duties and in our personal conduct.

Evidence before the investigators

179   As outlined at [84] above, S told investigators that he first met Mr Ryan in 2013 when at Hakea Prison.

180   Mr Ryan’s email to investigators dated 12 June 2020 says that he first met S in 2016.

181   The TOMS records are not in dispute and they show that Mr Ryan interacted with S several times when S was in Hakea Prison in 2013.

Evidence given at the hearing

182   The effect of Mr Ryan’s evidence is that he does not remember meeting S in Hakea Prison in 2013. He recalls meeting S at a pub in 2015.

183   S gave evidence that he first met Mr Ryan when S was in Hakea Prison in around 2013. They met again at a pub in 2015. S says he said to Mr Ryan ‘Hey, I remember you from Hakea.’

Consideration

184   It is not in dispute that the records from Hakea Prison show that Mr Ryan accessed S’ records on at least 13 occasions.

185   I consider that on what was before the Minister when he made his decision, it was open to conclude that Mr Ryan and S met in 2013 and therefore Mr Ryan provided false and misleading information in his responses to the disciplinary investigation when Mr Ryan said that he met S in 2016.

186   Mr Ryan misled investigators about when he met S but I do not consider that there is enough before me to conclude that he did so deliberately. Dishonesty generally involves knowledge, belief or intent. I do not consider that it was open to conclude that Mr Ryan knew or believed that he was providing, or intended to provide, false information in his responses to the disciplinary investigation about when he met S, rather than that he simply had mistaken recollection.

187   On the evidence before the Commission I find that Mr Ryan and S met in 2013 when S was first incarcerated at Hakea Prison. I accept Mr Ryan’s evidence that he did not remember meeting S at Hakea Prison in 2013. His evidence that he remembered meeting S for the first time at the pub in 2015 was plausible, given the fleeting contact shown by TOMS database and the large number of prisoners Mr Ryan would come into contact with at Hakea Prison as a remand prison.

188   Although Allegation 6 is substantiated to the extent that Mr Ryan provided false and misleading information about when he first met S, in my view that alone would not necessarily justify dismissal.

Did the Minister hold an honest and genuine belief, based on reasonable grounds, that the misconduct alleged occurred?

Mr Ryan’s submissions

189   Mr Ryan’s submissions about this issue were very brief. He said the Minister’s investigation was ‘highly selective in the assessment of circumstantial evidence’ and ‘unreasonably reached adverse conclusions in the absence of definitive evidence that would completely remove suspicions held about [Mr Ryan].’

The Minister’s submissions

190   The Minister says complaints about the conclusions of the investigation and the weight given to various pieces of evidence can only go to whether the Minister had reasonable grounds to believe that Mr Ryan committed the misconduct as alleged. They cannot affect whether the inquiry was proper or whether Mr Ryan was denied procedural fairness.

191   The Minister denies the investigation was flawed because it ‘heavily relied upon bare assertions made by’ S. The alleged sexual activities occurred in private so the conflicting evidence is necessarily bare assertions on both sides. The Minister says S’s account of his relationship with Mr Ryan was corroborated in important respects by the Department’s records and Mr Ryan’s witness, Mr Franklyn-Smith, but Mr Ryan’s responses only raised further questions. The Minister reasonably formed the view that Mr Ryan had been ‘frugal with the truth’, and that his responses had ‘clearly been designed to assist’ him and were ‘at best misleading’. In the circumstances, the Minister was entitled to prefer S’ evidence.

192   In relation to Mr Ryan saying that the investigation was ‘highly selective in the assessment of circumstantial evidence’ and that the Minister ‘unreasonably reached adverse conclusions in the absence of definitive evidence that would completely remove suspicions held about [Mr Ryan]’, the Minister says that even if a different view of the evidence were open, that would not mean that the Minister did not have reasonable grounds for the view he reached.

193   The Minister submits that events are relevant to the question of how close a relationship is between two people. Mr Ryan’s argument that only the first event is relevant is not reasonable or rational.

Consideration

194   As set out above at [77], I find that there was a proper, thorough inquiry and reasonable grounds for holding a genuine belief that the misconduct alleged in Allegations 2, 3, 4 and 5 occurred. I consider that it was open to the Minister to find that those allegations were substantiated and that Allegation 6 was substantiated other than in relation to dishonesty.

195   In my view, on Mr Ryan’s version of events alone there is more than enough to justify his dismissal.

Penalty

Mr Ryan’s submissions

196   Mr Ryan says his dismissal was oppressive because the Minister’s decision to dismiss was based on findings that were not reasonably drawn from the evidence before him.

197   Mr Ryan seeks reinstatement and compensation.

The Minister’s submissions

198   The Minister submits that prison officers are in a position of trust and able to exercise substantial statutory powers, including the use of force against prisoners under their supervision. It is essential that the Minister is able to rely on the integrity and honesty of prison officers, and have a high level of trust and confidence in them: Hawthorn v Minister for Corrective Services [2019] WAIRC 00302 (Hawthorn) at [105].

199   Conduct involving dishonesty usually falls within the class of conduct that is destructive of mutual trust between employer and employee and inevitably leads to dismissal: Drake-Brockman [88]. If the Minister’s findings about misconduct are upheld in full, the dishonesty involved is such that dismissal would necessarily be proportionate. If only some of the Minister’s findings about misconduct are upheld, the Minister will seek to be heard about whether dismissal is disproportionate in those circumstances.

200   Mr Ryan maintains that even if the nature of his relationship with S was as alleged, including the sexual activities, he was under no obligation to declare any more detail than he did in the 2020 COI form. In those circumstances, the Minister cannot have the necessary level of trust and confidence in Mr Ryan, such that reinstatement is impracticable.

Consideration

201   I find that in the circumstances Mr Ryan’s dismissal was not harsh, oppressive or unfair.

202   Even if:

1. Mr Ryan genuinely thought the matters set out from 1. to 4. at [146] did not characterise his association with S; and

2. Mr Ryan had not intended to mislead the Department about the true nature of his association with S,

in my view that still would not make his dismissal harsh, oppressive or unfair.

203   The Prisons Act 1981 (WA) (Prisons Act) places integrity and honesty (among other attributes) at the heart of what makes a person suitable to be a prison officer: s 99 of the Prisons Act. It is essential that the Minister be able to rely on the integrity and honesty of prison officers. The Minister must be able to have a high level of trust and confidence in them: Hawthorn at [105]. Prison officers hold a position of authority. They are responsible for and have power over prisoners. Proper disclosure about matters relating to conflicts of interests is critical in order to manage vulnerability to corrupting influences.

204   As I note at [172], I consider that Mr Ryan was dishonest in relation to this matter and he deliberately downplayed the closeness of his relationship with S. But even if I am wrong about that, and Mr Ryan simply did not realise that he needed to disclose ‘events’ as he puts it, in my view Mr Ryan showed an astonishing lack of integrity, judgment and insight. At the very least, Mr Ryan’s attitude about disclosure was dismissive and cavalier. This is even more concerning given it was an agreed fact that Mr Ryan had been counselled in March 2012 and November 2018 about the importance of properly submitting COIs.

205   Mr Ryan’s conduct and approach to this matter demonstrate that he is wholly unsuitable to work as a prison officer. Mr Ryan’s actions and attitude fall well short of the high standard expected of prison officers.

206   Even taking into account Mr Ryan’s ten years of service, I cannot accept Mr Ryan’s representative’s submission that dismissal was disproportionate and counselling would be an appropriate outcome.

207   First, I consider that it was open to the Department to find that at least four of the five allegations were substantiated in full. The Department conducted a fair, thorough inquiry. It held an honest and genuine belief, based on reasonable grounds, that Mr Ryan had engaged in the alleged misconduct. Mr Ryan did not declare the true nature of his past personal relationship and association with S. The misconduct was serious. It  undermines the necessary trust and confidence the Department needs to have in its prison officers.

208   The Department had a valid reason to dismiss Mr Ryan. Dismissal was a proportionate response in the circumstances.

209   Second, Mr Ryan’s evidence was that he had done nothing wrong and that ‘If I was friends with someone and been on holidays with them, gone to the movies, done all that sort of stuff, and there was one sexual act between – between me and the person, no, I wouldn't put that on the form, no.’ I accept the Minister’s submission that that evidence undermines the trust and confidence the Minister could have in Mr Ryan.

210   Mr Ryan did not simply make a mistake that he has now learned from. Even dismissal and the process of this matter being heard and determined have not made a difference to how Mr Ryan sees things. In those circumstances I do not consider that counselling could be an appropriate outcome.

211   Mr Ryan engaged in serious misconduct that, as in Bi-Lo and Sangwin v Imogen Pty Ltd [1996] IRCA 100, related to acts of dishonesty, where damage can be done to the employer’s interest and the public interest: Drake-Brockman at [61].

212   Balancing the interests of Mr Ryan, the Minister and the wider public interest, I find that the Minister did not exercise his lawful right to dismiss in a way that way that was so harsh, oppressive or unjust as to amount to an abuse of that right.

Conclusion

213   Application U 4 of 2021 will be dismissed.