| [2018] FWC 994 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Jason Reihana and Blake Reilly
v
The GEO Group Australia Pty Ltd
(U2014/5037 and U2014/5711)
COMMISSIONER CAMBRIDGE |
SYDNEY, 16 FEBRUARY 2018 |
Termination of employment - gross misconduct - incident of assault by prison officer involving grievous bodily harm to inmate - failure to initially report incident and dishonesty in subsequently providing materially inaccurate reports of incident - denials as to knowledge of assault incident - denials of knowledge of incident rejected - valid reason for dismissals - procedural deficiencies and any inconsistent treatment surpassed by severity of misconduct - applications dismissed.
[1] This Decision involves two related applications for unfair dismissal remedy made pursuant to s. 394 of the Fair Work Act 2009 (the Act). The applications were respectively made by Jason Alan Reihana and Blake Connor Reilly (collectively, the applicants). The respondent employer is The GEO Group Australia Pty Ltd (the employer or GEO).
[2] These matters have an extensive and difficult history. There were originally four related applications filed in February and March 2014. On 6 February 2015, the Commission issued Orders which stayed proceedings in these matters pending the final determination of related criminal proceedings taken against the applicant in the related matter, U2014/5495 (Mr Simon Glen Waterfall).
[3] The related criminal proceedings were finalised last year, and resulted in Mr Waterfall being convicted under s. 35 of the Crimes Act 1900 (NSW), of, on 26 December 2013, causing grievous bodily harm to an inmate (inmate S) at the Parklea Correctional Centre (the assault incident or the Boxing Day assault incident). Mr Waterfall was sentenced to 5 years and 9 months imprisonment.
[4] Mr Waterfall failed to comply with certain Directions made by the Commission, and he otherwise failed to pursue his application for unfair dismissal remedy with sufficient diligence. Consequently, the application in matter U2014/5495 was dismissed.
[5] On 30 August 2017, the Commission issued a Decision, [2017] FWC 4303, which granted GEO permission to be represented by lawyers or paid agents.
[6] The applicant in matter U2014/5490, Mr Chintankumar Patel, filed a Notice of Discontinuance on 9 October 2017.
[7] The remaining two applications have proceeded to a Hearing which was conducted over 4 days; 30, 31 October, 1 and 27 November 2017. At the Hearing, each of the applicants represented themselves, and each provided evidence as the only witness called in respect of each application for unfair dismissal remedy. GEO was represented by Mr K Brotherson, barrister, who called two witnesses who provided evidence in opposition to the applications.
[8] The applicants had worked for GEO for, in the case of Mr Reihana, about 4 years and 4 months, and in the case of Mr Reilly, about 2 years and 7 months. The applicants were employed as Correctional Officers (COs). The applicants worked at the Parklea Correctional Centre (Parklea jail or the jail).
[9] On 26 December 2013, Boxing Day, inmate S was performing some cleaning duties when he found a plastic water bottle that had been left near an office building within the jail. Inmate S did not know who the owner of the water bottle was, and he decided to take the water bottle and he put it in his cell. The water bottle was the property of CO Waterfall who discovered that inmate S had taken it.
[10] Shortly after 2:30 pm, CO Waterfall summoned inmate S to attend an area of the jail which was not well covered by the jail’s CCTV security system. For obvious security reasons this particular location will not be more precisely described other than it shall be referred to as “the chute”. Inmate S went into the chute followed by CO Waterfall. Then within a matter of only a few seconds, CO Reihana and then subsequently CO Patel, who at the time was an acting Correctional Supervisor, also went into the chute.
[11] CO Waterfall advised inmate S that he was the owner of the water bottle which inmate S had taken earlier in the day. Inmate S apologised for taking CO Waterfall’s water bottle, and he indicated that he would immediately retrieve the water bottle and return it to CO Waterfall. CO Waterfall was apparently not satisfied with the apology provided by inmate S, and he then proceeded to punch inmate S in the face. CO Waterfall delivered several blows to the face of inmate S which caused inmate S to fall to the ground. Subsequently, it was discovered that these blows fractured the jaw and a wisdom tooth of inmate S.
[12] Very quickly after inmate S had fallen to the ground he recovered himself to a standing position and it was around this point in time that CO Reilly also entered the chute. CO Reilly had been standing at a yard gate that was approximately 10 metres away from the entrance to the chute. Within a matter of a further few seconds after the entry into the chute of CO Reilly, inmate S left the chute followed by CO Waterfall, and then the other three COs also filed out of the chute.
[13] Inmate S returned the plastic water bottle to CO Waterfall. At about 3:17 pm inmate S attended the jail’s medical clinic. Inmate S initially told the staff at the jail’s medical clinic that he had accidentally walked into a wall and hurt his jaw. Inmate S was provided with an ice pack as treatment for the injury to his jaw and he signed an inmate injury record form which had been completed by CO Reubens.
[14] On the following day, 27 December 2013, inmate S was transferred from the Parklea jail to Blacktown Hospital for treatment to his injured jaw. Subsequently, inmate S was transferred to the Westmead Hospital where he underwent surgery that involved a plate being inserted into his broken jaw and the extraction of his fractured wisdom tooth.
[15] On 27 December, inmate S told both medical staff and other COs who had escorted him to the Blacktown Hospital, that his jaw injury had not been caused by accidentally walking into a wall but as a result of being assaulted by a CO in the company of other COs. Investigation into the alleged assault of inmate S commenced immediately, and, inter alia, the matter was brought to the attention of the General Manager of the jail, Mr Ma’a. Relevantly, COs Waterfall, Reihana, Patel and Reilly were identified as having some potential involvement in or knowledge of the assault incident, and these four COs were instructed to provide reports about what, at this stage, appeared to be an apparent assault upon inmate S at some time in the early afternoon of Boxing Day.
[16] By way of an apparent and unfortunate coincidence, on the following day, 28 December 2013, CO Reilly was engaged to perform an overtime shift which involved him working as an escort supervising the custody of inmate S at the Westmead Hospital. Inmate S alleged that on 28 December at times when CO Reilly was alone with inmate S, CO Reilly made threats intended to persuade inmate S to maintain that the injury to his jaw had been caused by an accident and not by any assault from a CO.
[17] On 30 December 2013, each of the four COs who had been identified as having some potential involvement in or knowledge of the assault incident provided separate written reports as to their respective recollections of events during the early afternoon of Boxing Day. Mr Ma’a, the General Manager of the jail, considered the written reports provided by COs Waterfall, Reihana, Patel and Reilly, and he assessed those reports against CCTV footage which had been examined as part of the initial stages of investigation. Mr Ma’a determined that the reports that had been provided by the four COs were inconsistent with events identified in the CCTV footage, and broadly lacked credibility. Consequently, all four of the identified COs, Waterfall, Reihana, Patel and Reilly, were suspended from duty with pay pending the outcome of a formal investigation into the assault incident.
[18] During the period of paid suspension all four identified COs (Waterfall, Reihana, Patel and Reilly) were charged by police with offences arising from the assault incident. In due course, the police withdrew charges against all but former CO Waterfall.
[19] GEO conducted an investigation into the assault incident and, relevantly, as part of this investigation a recorded interview was held with CO Reilly on 6 February 2014. Although the employer attempted to arrange an interview with CO Reihana, no such meeting occurred.
[20] On 20 February 2014, the employer’s internal investigation report was provided to Mr Ma’a. Mr Ma’a considered the investigation report, its findings, recommendations, and the employment history of each of the four COs, and he decided to terminate the employment of all four individuals. By way of letters dated 21 February 2014, each of the four COs (Waterfall, Reihana, Patel and Reilly), was advised of their termination of employment.
[21] Relevantly, the letters of dismissal that were provided to each of the applicants advised of their summary dismissal which specifically arose from the assault incident. In particular, the serious misconduct upon which the employer acted to summarily dismiss the applicants was stated to have relevantly involved the individual being “approximate to and had knowledge of inmate Z [S] sustaining … personal injuries” and “this was a reportable incident that you failed to report during your shift on 26 December 2013, or thereafter…” and “after being directed to provide a report, your report was materially inaccurate in that the inmate sustaining personal injuries was not recorded in your report.”
[22] As previously mentioned, all four of the identified COs (Waterfall, Reihana, Patel and Reilly) challenged their respective dismissals from employment and each made unfair dismissal applications. All of those applications were stayed pending the outcome of the related criminal proceedings and the applicants have maintained their respective claims for unfair dismissal remedy.
[23] Although each of the applicants’ particular circumstances has certain distinguishing features, there is some broad consistency in terms of the fundamental basis upon which each claims to have been unfairly dismissed. Importantly, both of the applicants have maintained the position that they conveyed in their respective written reports of 30 December 2013. Crucially, each of the applicants has asserted that they did not witness and did not have knowledge of the assault incident.
[24] The applicants also asserted that they were not provided with a just or fair procedure as they were not given any opportunity to respond to particularised allegations, and, in the case of Mr Reihana, not even interviewed regarding the assault incident. In addition, both of the applicants have raised complaint that their dismissals involved manifestly inconsistent treatment when compared with; (a) the outcome that the employer adopted in respect to another purportedly similar assault incident that occurred in March 2013, and (b) the failure to include CO Reubens as part of the investigation and disciplinary process conducted into the Boxing Day assault incident.
[25] The documentary material that each of the applicants filed included a mixture of factual assertions and submissions made in support of their respective claims for unfair dismissal. Both of the applicants also made verbal submissions during the Hearing which have been taken to have supplemented the submission components of the filed documentary material.
[26] Mr Reihana submitted that he still felt as though he had been unfairly dismissed from his employment with GEO. Mr Reihana maintained his strong denial of having any involvement in the allegations that GEO had made against him. Mr Reihana said that his evidence had not changed since the beginning of the investigation into the assault incident.
[27] The submissions made by Mr Reihana also mentioned his ongoing complaint about the process that GEO had used and which he described as a flawed investigation that never provided him with a fair voice as he had never been interviewed during the process. In this regard, Mr Reihana mentioned that once he had been charged by the New South Wales police he had strict bail conditions which prohibited him from attending an interview as had been arranged by those investigating the matter on behalf of GEO. Mr Reihana said that he had never refused to participate in an interview and that he only acted on legal advice from his solicitor and barrister.
[28] Mr Reihana further submitted that he felt as though GEO had already decided that he was guilty of gross misconduct without properly investigating the assault incident. In addition, Mr Reihana submitted that GEO did not follow a fair procedure because it failed to interview CO Reubens who was the first CO that dealt with inmate S when he first attended the medical clinic. Consequently, according to the submissions made by Mr Reihana, GEO failed to conduct a fair and proper investigation and it never gave him the opportunity to properly defend his position.
[29] Further, Mr Reihana made submissions which referred to the inconsistency in the outcome that was provided in circumstances of the assault of an inmate that occurred in March 2013 when compared with the summary dismissal that he had suffered. Mr Reihana said that in respect to this earlier incident a number of staff had kept their positions despite irrefutable evidence of gross misconduct. Consequently, according to the submissions made by Mr Reihana, at most, he should have been counselled and given a final warning.
[30] Mr Reihana also submitted that he had an employment record that was without blemish, and he regularly acted in senior positions. Mr Reihana said that he was not seeking monetary compensation as an outcome for his unfair dismissal but rather he wanted to be reinstated and continue his career path as a correctional officer.
[31] Mr Reilly also made submissions which have been treated as supplementing the submission components of the filed documentary material. Mr Reilly commenced his submissions by stating that his level of knowledge of the assault of inmate S could not be determined one way or another. Further, Mr Reilly said that whilst even if it was determined that he must have had some knowledge of the assault as he arrived at the chute, it could not be determined exactly what or how much he would have known.
[32] Mr Reilly also submitted that he felt that he didn’t need to report in accordance with the reporting requirements. However, if his judgement in this regard was wrong then he submitted that he had made a minor decision which was a single error of judgement which should not have resulted in such a harsh punishment as summary dismissal.
[33] It was also submitted by Mr Reilly that the communications that occurred between the four identified COs in the period immediately following Boxing Day on 2013, was “entirely reasonable” conduct or in the alternative, it was not serious misconduct. Mr Reilly submitted that if there was any such misconduct the sanction of summary dismissal was clearly disproportionate to the gravity of that misconduct.
[34] In further submissions, Mr Reilly raised complaint about what he said was an absence of procedural fairness. Mr Reilly said that between the time that he was suspended and when he was dismissed he attended only one single investigation interview. Further, Mr Reilly stressed that particular allegations of misconduct were never put to him, and GEO failed to follow its own disciplinary procedures and guidelines.
[35] Mr Reilly submitted that his dismissal was quintessentially harsh, unjust and unreasonable. Mr Reilly also made submissions which referred to inconsistent treatment in comparison with the earlier, March 2013, assault incident, and the absence of any disciplinary action being taken against CO Reubens.
[36] It was further submitted by Mr Reilly that his dismissal was also excessively harsh because of its consequences on his personal and financial circumstances. Mr Reilly said that he had great difficulty in being able to obtain alternative, meaningful employment, and he had to reluctantly move to regional New South Wales in order to provide for financial stability for his family. Mr Reilly said that the social and emotional impact of being five hours away from his parents had made things especially difficult.
[37] Finally, in his closing submissions Mr Reilly said that if the Commission found that he had committed some misconduct it was a single mistake, and it should not, in consideration of all of the circumstances, have resulted in a finding of serious misconduct leading to the harsh termination of his employment. Mr Reilly said that he pressed for compensation for wages up to the maximum amount as remedy for his unfair dismissal.
[38] The employer was represented by Mr Brotherson, who submitted that the dismissals of the applicants were not unfair. Mr Brotherson made submissions which referred to documentary material that had been filed on behalf of GEO.
[39] The submissions made by Mr Brotherson acknowledged that the employer was required to discharge an evidentiary onus on the balance of probabilities in respect to the serious misconduct for which the applicants were dismissed. Mr Brotherson referred to the letters of dismissal which had been issued to the applicants and which he said described the serious misconduct that GEO relied upon.
[40] Mr Brotherson noted that in the letters of dismissal, GEO had recognised that an incident occurred on 26 December 2013 which involved sustained personal injuries to inmate S. Further, GEO had established that the applicants, inter alia, were in the proximity of the assault incident and that they must have witnessed and/or had knowledge of the assault incident but failed to report the assault incident, and then subsequently, when requested to provide some report, they made reports that were materially inaccurate.
[41] Mr Brotherson made detailed submissions which analysed the evidence of the investigation report into the assault incident. Mr Brotherson submitted that the applicants either saw or heard the assault, or they were immediately afterwards aware of it, and they did nothing about it. Mr Brotherson said that these actions represented a fundamental failure for the applicants to act in accordance with the requirement of their positions as correctional officers.
[42] It was further submitted by Mr Brotherson that the underlying validity of the dismissals of the applicants became simplified following the conviction of Mr Waterfall in the District Court. Mr Brotherson made detailed submissions which referred to the extensive CCTV footage which had been provided during the Hearing and which, when carefully considered, could not support the proposition advanced by the applicants that they saw nothing, they heard nothing, they weren’t aware of anything, and they had no obligation to report anything.
[43] Mr Brotherson submitted that it was “impossible to believe” the positions that had been maintained by the applicants which asserted that they had not witnessed the assault on inmate S nor had any knowledge of it. Mr Brotherson made submissions which were highly critical of the submissions made by Mr Reilly whereby he asserted that if he did know something about the assault there was no way that any determination could be made as to his level of knowledge. Mr Brotherson described this proposition as an extraordinary submission, which was further criticised because Mr Reilly had suggested that any failure to report whatever it was he did or did not know should be treated as nothing more than an error of judgement.
[44] It was further submitted by Mr Brotherson that the direct evidence from the CCTV was strong enough to prove, to the requisite standard, that the two applicants either saw, heard or were otherwise aware of the assault on 26 December 2013. Further, Mr Brotherson submitted that the applicants were obliged to report that incident and they did not. Further, when they were required to produce reports those reports were materially inadequate, and deliberately failed to convey a truthful account of what they must have had knowledge of.
[45] Mr Brotherson also submitted that there was valid reason for the dismissals of the applicants in satisfaction of the provisions of section 387 (a) of the Act. Mr Brotherson said that the valid reason for the dismissals of the applicants was established to the requisite standard upon which to validate serious misconduct that warranted summary dismissal. Mr Brotherson stressed that the applicants had maintained a dishonest denial of any knowledge of the assault incident for over four years. Consequently, according to the submissions made by Mr Brotherson, the applicants were disentitled to any form of finding of unfairness relating to their dismissals.
[46] Further submissions were made by Mr Brotherson in respect to any alleged procedural deficiencies in the investigation and disciplinary process that had been adopted by GEO. Mr Brotherson said that the complaints that the applicants raised were nit-picking at best, and did not provide for any significant absence of proper process that should in any way, overcome the serious misconduct and ongoing dishonesty of the applicants.
[47] Mr Brotherson also made submissions which rejected any alleged inconsistency in treatment for the applicants. Mr Brotherson stressed that the earlier March 2013 assault incident involved a number of important distinctions. Further, Mr Brotherson said that there was evidence as to why CO Reubens was not included in the investigation process and in any event he subsequently resigned from his employment.
[48] In summary, Mr Brotherson submitted that GEO had discharged its onus and established the serious misconduct of the applicants to the requisite standard of proof. Mr Brotherson submitted that the applicants had been involved in gross misconduct that provided valid reason for their summary dismissals. Further, Mr Brotherson submitted that the applicants had maintained the dishonest position that they had created on 30 December 2013 when they made their materially inaccurate written reports regarding the assault incident. Mr Brotherson submitted that the applications for unfair dismissal remedy should be dismissed.
[49] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:
“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[50] In this case, there was no dispute that the matters were confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissals of the applicants were harsh, unjust or unreasonable.
[51] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:
“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
387 (a) - Valid reason for the dismissal related to capacity or conduct
[52] The determination of these matters in respect to valid reason for dismissal can be approached by examination of the written reports that each of the applicants provided on 30 December 2013, and comparing those reports with the subsequent evidence that has emerged regarding the Boxing Day assault incident. In this way, an analysis has been conducted for each of the applicants so as to ascertain whether the serious misconduct for which each was summarily dismissed could be properly verified.
[53] Firstly, in the case of Mr Reihana, he provided the following written report dated 30 December 2013 which has been redacted to omit security sensitive particulars:
“During the hours of 1400 and 1500 hours I ceased duty in Area [] Industries and proceeded up to Area [] control to help assist staff. During this time I was in the [] control area with C/S Patel when I heard what appeared to be arguing along with other inmates yelling from the [] yard. That’s when I noticed C/O Waterfall coming out of the [] chute with an inmate sweeper. As they got closer towards the clinic C/S Patel asked me to go outside and see what was happening. As I walked outside C/O Waterfall was explaining that there was no nurse there although the inmate continued to argue. I then continued to speak to C/O Waterfall about something unrelated as Waterfall walked back to the [] chute with the inmate.” 1
[54] The report provided by CO Reihana places him in the chute at the time that he says there was an argument between CO Waterfall and inmate S, allegedly about the absence of a nurse at the medical clinic. The report provided by CO Reihana does not include any mention of any physical assault despite CO Reihana being present in the chute at the same time as CO Waterfall and inmate S.
[55] The chute area is a reasonably confined space, and during the District Court proceedings for the criminal charge taken against Mr Waterfall, Mr Reihana was questioned about the prospect that he may not have noticed any assault if an assault had occurred whilst he was in the chute with CO Waterfall and inmate S. Mr Reihana provided the following evidence to the District Court:
“Q. Do you need to be reminded of that or are you fairly confident of where you were?
A. I remember.
Q. Just play on. You see that movement there at 2.35.25? Take it back please. You see that sudden sharp movement from the figure on the right?
A. (No verbal reply)
Q. Please say if you don't?
A. I'm not sure.
Q. Play it back, thank you, take it back to 2.35.15. So in the next ten seconds, I'd like you to concentrate very hard, thank you sir. Stop there please. What you saw there is a sharp movement from the figure on the right and then you saw the light - the full light suddenly appear on the left, didn't you?
A. I saw some movement, yes.
Q. I just described it in detail, you disagree with the detail I just described?
A. There was quite a few movements.
Q. What were those movements?
A. People moving around, it looked like.
Q. You were there sir, weren't you?
A. Yes, I was off to the right.
Q. What did you see?
A. Not that. I didn't see those movements.
Q. You didn't see Mr [] drop to the ground?
A. No.
Q. You didn't hear a punch?
A. No.
Q. You didn't hear or see anything happen between them physically?
A. No.
Q. You were just a few feet away from that, weren't you?
A. That's correct.
Q. You're telling lies, aren't you?
A. No sir.
Q. You just can’t bring yourself to say the truth about what Mr Waterfall did, can you?
A. No sir, that’s not right.” 2 [Emphasis added]
[56] In this part of his District Court testimony Mr Reihana confirmed that he was “just a few feet away” from CO Waterfall and inmate S, and that the CCTV footage showed “quite a few movements.” However, according to Mr Reihana he “didn’t see those movements.” The movements that Mr Reihana said that he didn’t see have subsequently been confirmed to have involved CO Waterfall punching inmate S several times with such force as to break the jaw and wisdom tooth of inmate S, and causing him to fall to the ground. The proposition that CO Reihana could have not noticed this assault was further tested in the District Court proceedings and Mr Reihana provided the following further testimony:
“Q. A moment ago you gave evidence that an assault didn't happen, have you forgotten that answer?
A. No.
Q. Why did you say that?
A. Say what sir?
Q. An assault didn't happen?
A. Isn't that what you asked?
Q. Is it possible Mr [] was assaulted and you just didn't see or hear it?
A. No, I think I would have heard it or saw it.
Q. You think you would have heard it?
A. That's correct.
Q. You know that it's alleged that one of the punches was flush on the jaw, causing the jaw to break in two don't you?
A. Yes.
Q. And so having given the opinion a moment ago that you think you would have heard it, it'd be a loud sound wouldn't it?
A. Yes.
Q. But you didn't hear it?
A. No sir.” 3 [Emphasis added]
[57] Having regard for all of the evidence provided to the Commission, including the repeated detailed examination of the CCTV footage of the assault incident, and having the benefit of a close observation of all of the witnesses, upon careful, balanced consideration, there is compelling basis to agree wholeheartedly with that part of the testimony provided by Mr Reihana, whereby he agreed that it would not have been possible for him to have not heard or seen the assault by CO Waterfall upon inmate S. Consequently, Mr Reihana must have seen and heard the Boxing Day assault as he witnessed the event from close proximity.
[58] The report that CO Reihana provided on 30 December 2013 was deliberately and materially misleading. Further, the report was false in that it omitted any mention of the assault that he had witnessed on Boxing Day. Further, Mr Reihana has maintained the falsehood that he first constructed in his report of 30 December 2013. It follows that this level of dishonesty has provided valid reason for the summary dismissal of Mr Reihana.
[59] Secondly, in the case of Mr Reilly, he provided the following written report dated 30 December 2013, which has been redacted to omit security sensitive particulars:
“On the 26th of December 2013 whilst I was performing my duties as a correctional Officer in Area [] between the hours of 1400 and 1500.
I was working as Area [] Rover and as it was a public holiday I was the only Area [] Rover so CS Patel was assisting me with my duties. From what I can recall during this time the Area [] laundry trolleys were required to be picked up from [] Gate. I asked some of the Inmates at [] yard gate to call out for a sweeper, at this time CO Waterfall came out of [] gate along with inmate sweeper S[]. I was still waiting at the [] yard gate for a period of time that I can't recall. I then locked the [] yard gate and walked towards [] control to see if the laundry trolleys still needed to be collected or if S[] had collected them both. At this time Inmate S[] was walking back towards []. I then pulled out two [] sweepers to go and collect the trolleys. Inmate S[] returned later to collect the [] Laundry. The next time I can recall seeing inmate S[] was when he was issuing meals along with other [] sweepers at lock in.
On Friday the 27th of December after returning home from my duties I received a call from Parklea requesting for me to do an Overtime shift the next morning at Westmead hospital, to which I agreed. Upon arrival I saw that the escort was for Inmate S[] which went without any incident, if I was made aware of any allegations I wouldn't have accepted the Overtime shift.
I submit this report for your information.” 4
[60] The report that was provided by CO Reilly on 30 December 2013, makes repeated mention about the collection of laundry trolleys as being the underlying reason for inmate S to be going to and from the chute. Indeed, the reason that CO Reilly provides for why he locked the yard gate and walked towards the chute involved him wanting “…to see if the laundry trolleys still needed to be collected…”.
[61] Unfortunately for Mr Reilly, the CCTV footage does not include any sign of laundry trolleys at any stage. Further, if the reason for CO Reilly going to the chute was connected with the collection of laundry trolleys then logically he would have asked inmate S about the laundry trolley collection. However, when questioned during cross-examination on this point Mr Reilly provided the following evidence:
“Did you stop and ask him, “Why didn’t you get the trolleys”? --- No.
Why not? --- It’s - I don’t know. Don’t recall why.
This is just a concoction, isn’t it Mr Reilly. It doesn’t make any sense. You’re saying your concern is laundry trolleys, and the person you think is going to get them hasn’t got them, and you just let him go by. Is that what you’re saying? --- Yes. 5
[62] The issue of the laundry trolley collection was also included in the written report provided by CO Waterfall on 30 December 2013. However, the falsity of the introduction of laundry trolley collection as representing the reason for inmate S being summoned to the chute was further exposed when CO Waterfall reported that inmate S “… then collected the laundry and went back into the wing.” 6 It was clear from the CCTV footage that when inmate S left the chute he was not holding anything (other than perhaps his sore jaw), and he certainly does not have a laundry trolley.
[63] There is also a further important inaccuracy in the report provided by CO Reilly on 30 December 2013. The report states that at the time that CO Reilly was walking towards the chute inmate S was “walking back towards” the location from where he had come. The report clearly endeavours to place CO Reilly away from the chute at the time that inmate S and the other COs were in the chute. Of course it would assist Mr Reilly greatly if it could be established that he was not in the chute at the same time as inmate S. However, despite this portrayal created by the contents of the report of 30 December 2013, during cross-examination Mr Reilly conceded that at one point he was in the chute with three other correctional officers and inmate S. 7
[64] Unlike CO Reihana, CO Reilly was not in close proximity of the assault when it actually occurred. However, CO Reilly arrived at the chute only a matter of a few seconds after the last punch had been delivered. Further, the evidence has established that there was a period of about at least 10 seconds when the four COs (Waterfall, Reihana, Patel and Reilly) and inmate S were all in the chute together.
[65] Mr Reilly said that he did not witness the assault incident and that he had no knowledge of it. It is certainly conceivable that CO Reilly may not have actually witnessed the punches as they were delivered by CO Waterfall. However, CO Reilly asserts to have had no knowledge of the assault, despite arriving on the scene only a matter of seconds after the final blow had ceased, and that there was no discussion between himself and the other COs about what had just occurred. On this particular point, Mr Reilly provided the following evidence during cross-examination:
“So we have this period, and we will see you come out in about 10 seconds. Do you recall in the District Court, the Crown prosecutor used the term “the lost 10 seconds”? Did you hear use that term? --- I don’t recall.
It’s an interesting term where, for 10 seconds, all five of you were in there no one seems to know what was being said or done other than Mr S[inmate S] himself. You have gone in there, there’s three other correctional officers and an inmate. Your evidence, as I follow you so far this afternoon, is you don’t say anything to anybody? --- I’m not too sure, I don’t recall that.
Your evidence is nobody said anything to you? --- Not that I recall.” 8
[66] After careful consideration, I am unable to accept the evidence as advanced by Mr Reilly, that he had no knowledge of the assault incident, or perhaps an insufficient level of knowledge upon which to prompt any reporting. Following the conviction of Mr Waterfall there was no way of avoiding the factual confirmation of the assault that CO Waterfall perpetrated upon inmate S. I simply cannot believe that within a matter of seconds after an event such as an assault of such severity as to fracture the jaw and wisdom tooth of the victim, that there was no discussion between the four COs who were then together in the confined area of the chute.
[67] The report that CO Reilly provided on 30 December 2013 was deliberately and materially misleading. Further, the report was false in that it omitted any mention of the assault that he had knowledge of. Further, Mr Reilly has maintained the falsehood that he first constructed in his report of 30 December 2013. It follows that this level of dishonesty has provided valid reason for the summary dismissal of Mr Reilly.
[68] Unfortunately, I am unable to make positive findings in respect of the credit that could be attached to the evidence that was provided by either of the applicants. The applicants have essentially lived a lie since Boxing Day of 2013. Following his conviction, Mr Waterfall took a small but incomplete step towards reconciling his conscience when he admitted that he had slapped inmate S. The applicants may, hopefully, at some stage, similarly commence a process of purging their dishonesty.
[69] Consequently, in summary, there was valid reason for the summary dismissals of the applicants. The findings of gross and wilful misconduct made by GEO against the applicants have been verified.
[70] GEO provided written notification of the reason for the applicants’ dismissals. Regrettably however, the notifications of the dismissals of the applicants were not provided as part of a sound disciplinary process which provided clear particularisation of the reason for dismissal at some point prior to finalisation of the decision to dismiss.
[71] GEO attempted to engage both of the applicants in interviews as part of its investigation process. Unfortunately, only Mr Reilly participated in one such interview. Importantly, neither of the applicants was given any opportunity to respond to the findings that were made by the investigation report, and the reasons which GEO relied upon as basis for the dismissals.
[72] Consequently, the applicants were not provided with a fair and just process that would enable them to make out any response or offer explanation regarding what should have been particularised reasons upon which GEO was contemplating dismissal. Although the nature of the applicants misconduct appeared to be something that could not have been altered or mitigated, the applicants were nevertheless entitled to be given an opportunity to be heard.
[73] The adoption of a proper process could have significantly altered the circumstances. For example, it is conceivable that one or more of the identified COs could have responded to a show cause process by providing admissions which may have altered the course of events in a manner which may have assisted any criminal prosecution. Although it is nothing more than speculation, the potential for such an outcome never emerged because of the seriously flawed and hastily implemented dismissals of all four of the identified COs.
[74] The flawed process by which GEO hastily moved to implement the dismissals of the applicants meant that there were no discussions relating to dismissal. Consequently, the absence of such discussions could be properly construed to represent an unreasonable refusal to allow the applicants to have a support person present. The absence of any forum for the attendance of a support person is tantamount to refusing to allow a support person to attend to assist in any discussions relating to dismissal.
[75] This factor is not relevant to the circumstances in this instance.
[76] The size of the employer’s operation would not have been likely to have a significant impact on procedures surrounding the dismissal of the applicant.
[77] This factor is not relevant to the circumstances in this instance.
[78] The applicants advanced an argument that their dismissals involved inconsistent treatment. There were two aspects of the alleged inconsistent treatment, one involved a comparison with another assault incident that occurred in March 2013, and the other aspect related to there being no investigation or disciplinary processes implemented against CO Reubens.
[79] There were a number of important differences in the circumstances of the March 2013 incident when compared to the Boxing Day assault of inmate S. The circumstances of the actual assault in March initially involved justifiable use of force on the particular inmate, after which the unacceptable assault occurred. The degree of premeditation, the severity of the assault, and the absence of any provocation or reason were some but not all aspects of the assault incident involving inmate S which clearly distinguish it from the March 2013 assault incident.
[80] Further, the various COs who failed to report the March 2013 assault incident were provided with final written warnings, and the assailant was dismissed. Following this incident GEO implemented a number of measures which arose from its concern about the discovery of a “culture of silence” involving intimidation, perceived or real, against any CO who might report an incident that would be likely to have disciplinary ramifications for another CO. Consequently, the disciplinary measures implemented against the various COs who failed to report the March 2013 incident, was considered by GEO in the context of the discovery of the “culture of silence”. This important contextual consideration did not apply to the circumstances of the Boxing Day assault incident.
[81] In respect to the other aspect of alleged inconsistent treatment which involved the absence of investigation or disciplinary processes against CO Reubens, there were two reasons which justified GEO’s approach. Firstly, there was evidence that the police had requested that GEO exclude CO Reubens from the investigation into the assault on inmate S. Secondly, it was clear that CO Reubens was not present at the time of the assault on inmate S whereas the four identified COs (Waterfall, Reihana, Patel and Reilly), were either in the chute at the time of the assault or, in the case of CO Reilly, in the chute only seconds after the final blow had been delivered.
[82] Upon analysis, the alleged inconsistency in treatment of the applicants cannot be sustained. In any event, to the extent that there was any inconsistent treatment of the applicants, such inconsistency would be overshadowed by the serious nature of the misconduct upon which the summary dismissals of the applicants was established.
[83] There was a further matter that, although not clearly articulated by either of the applicants, introduced a relevant consideration that may have provided assistance for some success of the applicants’ unfair dismissal claims. Evidence was provided of the pre-employment psychological report that was conducted for CO Waterfall in April 2012. 9 This applicant profiling report strongly recommended against offering employment to CO Waterfall. The psychological report indicated that CO Waterfall represented a “high risk” and was “very unsuitable” representing the lowest 2nd percentile ranking for employment.
[84] Consequently, GEO might be properly assigned some level of culpability in respect to the Boxing Day assault incident. GEO employed CO Waterfall in circumstances where it had been provided with a report that strongly recommended against his engagement, and that in many respects predicted an event like the Boxing Day assault incident. Therefore, I believe that the rather alarming employment practices of GEO provided it with a level of culpability for the Boxing Day assault incident. However, on balance, the level of responsibility that can be attributed to GEO does not in any way excuse or ameliorate the misconduct of the applicants. It is however perhaps a matter that GEO may wish to reflect upon seriously, particularly in view of their foreshadowed applications for costs.
[85] Further, the particular personal circumstances of the applicants including the financial, emotional and related impacts of dismissal can be understandably difficult. However these personal circumstances must be assessed and balanced against the particular characteristics of the dismissals. In these matters, the particular nature of the serious misconduct which provided valid reason for summary dismissal has operated against any finding of harshness arising from the particular personal circumstances of the applicants.
[86] The applicants were summarily dismissed for gross and wilful misconduct involving the Boxing Day assault incident. Following a comprehensive investigation, GEO made an internal report which identified misconduct on the part of, inter alia, the applicants. That misconduct involved, in particular, the materially inaccurate reporting of the assault incident. GEO found the misconduct to be serious and wilful and basis for summary dismissal.
[87] Upon full Hearing of the applicants’ claims for unfair dismissal remedy, the findings of gross and wilful misconduct made by GEO have been confirmed by the Commission.
[88] Consequently, the employer dismissed the applicants for valid reason relating to the applicants’ conduct. That conduct represented gross and wilful misconduct sufficient to justify summary dismissal.
[89] Regrettably, GEO implemented the dismissals of the applicants by way of a seriously flawed process which did not provide the applicants with any opportunity to be heard so as to offer explanation, or admissions, or make out any defence against any particularised allegations. The absence of fair and just process has required careful consideration and balance against the particular nature of the serious misconduct committed by the applicants.
[90] The seriously flawed procedure adopted by GEO and other aspects of the dismissals of the applicants, including their personal circumstances have not, on balance, outweighed the particular seriousness of the misconduct of the applicants. Consequently, when all of the circumstances surrounding the dismissals of the applicants are carefully evaluated, the dismissals were not harsh, unjust or unreasonable.
[91] Therefore, the applications for unfair dismissal remedy must be dismissed, and Orders reflecting that determination will be issued accordingly.
COMMISSIONER
Appearances:
Mr J Reihana and Mr B Reilly both appeared unrepresented.
Mr K Brotherson of Counsel with Ms T Jennings appeared for the employer.
Hearing details:
2017.
Sydney:
October, 30 & 31.
November, 1 & 27.
Printed by authority of the Commonwealth Government Printer
<PR600436>
1 GEO Exhibit Document @ tab 17.
2 Transcript of District Court of New South Wales, 2014/00026543, R v Simon Glen Waterfall, @ page 661.
3 Ibid @ page 668.
4 GEO Exhibit Document @ tab 18.
5 Transcript of proceedings @ PN2206 – PN2208.
6 GEO Exhibit Document @ tab 20.
7 Transcript of proceedings @ PN2248.
8 Transcript of proceedings @ PN2463 – PN2465.
9 GEO Exhibit Document @ tab 37.