DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Luke Maxitanis
v
Department of Justice and Community Safety
(U2019/7624)

Application for an unfair dismissal remedy.

[1] Mr Maxitanis (the Applicant) was employed by the Department of Justice and Community Safety (the Respondent) in the role of Prison Officer between 29 July 2014 and 26 June 2019.

[2] The Applicant’s employment was governed from 10 June 2014 to 17 May 2016 by the Victorian Public Service Workplace Determination 2012 (the Determination), and from 18 May 2016 to 26 June 2019 by the Victorian Public Service Agreement 2016 (the Enterprise Agreement). 1 His duties included, amongst other things, transporting prisoners and responding to emergencies and incidents.2

[3] The Applicant’s employment with the Respondent was terminated on the basis that it had substantiated allegations made against the Applicant, involving failure to comply with the Respondent’s policies and the Applicant’s conduct in dealing with a prisoner (referred to hereafter as “Prisoner X”), who had allegedly refused to obey a lawful directive.

[4] At the commencement of the hearing, with the consent of the parties, I issued an order de-identifying the name of Prisoner X. Following the hearing, the Respondent sought to press an earlier application for broader confidentiality orders, to be issued by consent. The Applicant confirmed that it neither consented nor opposed the making of the order. 3 Following the receipt of written submissions from the Respondent, I determined to issue the orders.4 They operate so as to de-identify both personnel and procedures adopted by the Respondent that it submits require confidentiality.

[5] The allegations were set out by the Respondent in correspondence to the Applicant dated 25 June 2019 (the Termination Letter), parts of which are reproduced as follows:

“On or around 26 April 2018 at the Metropolitan Remand Centre (MRC) you used force against a prisoner in circumstances where the use of force was not reasonable and/or where the situation could have been resolved without reasonable force and/or where the force used was not the minimum necessary to achieve control and/or you engaged in conduct that could adversely affect your standing as a public official or which may bring the department or the public sector into disrepute and/or you failed to act consistently with relevant legislation and government policy and/or you failed to comply with legislation relevant to the performance of you duties (being the Corrections Act) and/or failed to act in a manner that is consistent with the Charter of Human Rights and Responsibilities (Charter).

Particulars

On or around 26 April 2018 at the MRC, whilst walking through the Dayroom of Chillwell Unit, B Side, you were engaged in a discussion with [Prisoner X]. At one point, [Prisoner X] stopped walking, turned around to face you, and began to advance towards you. In response, you took a few steps back, and then reached towards [Prisoner X] and took hold of the back of his head with both hands. You then swiftly brought [Prisoner X] to the ground. Your use of force against [Prisoner X] on this occasion was unreasonable and/or unnecessary.

…

your employment is terminated with immediate effect from 26/6/2109. You will be provided with all of your statutory and other entitlements owing on termination of your employment, including payment in lieu of notice.”

[6] Counsel for the Respondent confirmed at hearing that the valid reason for termination was the substantiated allegation as to the incident of 26 April 2018, as particularised in the letter of termination above. 5

[7] On 11 July 2019, the Applicant made an application for relief from unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[8] The matter did not resolve at conciliation and proceeded to arbitration before me on 9, 10, 29 and 30 October 2019 and 15 November 2019. Both parties were granted permission to be represented by lawyers. A further mention was conducted by phone on 13 December 2019.

Initial matters to be considered

[9] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the Applicant’s application.

[10] There is no dispute between the parties and I am satisfied on the evidence that:

(a) the Applicant’s application was made within the period required in s.394(2) of the Act;

(b) the Applicant was a person protected from unfair dismissal;

(c) the Respondent was not a “small business employer” as defined in s.23 of the Act, meaning that the Small Business Fair Dismissal Code does not apply; and

(d) the Applicant’s dismissal was not a case of genuine redundancy.

[11] Consequently, I am satisfied that the Fair Work Commission (the Commission) has jurisdiction to determine the merits of the application.

Evidence

[12] The Applicant relied upon witness statements from the Applicant and Mr Frederick Wallace, Prison Officer.

[13] The Respondent relied on witness statements from the following of its employees:

(a) Mr Ivan Calder, Assistant Commissioner – Custodial Services at Corrections Victoria;

(b) Mr Ewan Giles – Assistant Director – Employee Investigations;

(c) Ms Kelly Bodsworth – Workforce Development Officer;

(d) Mr Malcolm Ridsdale – Supervisor for Training;

(e) Mr John Nesci – Senior Operations Manager; and

(f) Mr Phillip Scavo – Consultant (Accredited Training) in the Learning and Development team.

[14] Mr Moses Ibrahim – Senior Prison Officer, was also ordered to and did attend the Commission to give evidence following the filing of a form F51 by the Applicant’s representatives.

[15] Each of the witnesses was subject to cross examination.

Was the dismissal harsh, unjust and/or unreasonable?

[16] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether the Applicant’s dismissal was harsh, unjust and/or unreasonable. I will address each of these statutory considerations in turn below.

Valid reason (s.387(a))

Legal Principles

[17] The employer must have a valid reason for the dismissal of the employee although it need not be the reason given to the employee at the time of the dismissal. 6 The reason for the dismissal should be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”7

[18] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 8 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).9

[19] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred. 10 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.11

[20] The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post as follows: 12

“[35]... as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a “valid reason” should not impose a severe barrier to the right of an employer to dismiss an employee.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”

Reason relied upon by the Respondent – the allegation

[21] It is alleged by the Respondent that, on 26 April 2018:

(a) Prisoner X and the Applicant were engaged in a discussion whilst walking through the Dayroom of Chillwell Unit, B side;

(b) at one point, Prisoner X stopped walking, turned around to face the Applicant and began advancing towards the Applicant;

(c) the Applicant took a few steps back and then reached towards Prisoner X and took hold of the back of his head with both hands;

(d) the Applicant then swiftly bought Prisoner X to the ground;

(e) the Applicant’s use of force against Prisoner X was unreasonable and/or unnecessary. 13

[22] The Applicant agreed with each of the alleged matters above other than the final matter, that being whether the force used was unreasonable/unnecessary. 14 The Applicant also objected to the characterisation of the facts in (a) above, as follows:

“We have nothing of the flavour of a prisoner behaving aggressively; a prisoner disobeying instructions given by prison officers; you have nothing of the flavour of the general chaos that we see here; and the prisoner heading aggressively towards my client.” 15

Submissions of the parties

[23] The Respondent’s Termination Letter and written outline of submissions refer to a number of policy and legal obligations alleged to have been breached by the Applicant. I do not consider it necessary to reproduce the policies in full, however I have taken them into account. They are listed below.

(a) the MRC Local Operating Procedure 1.13;

(b) the Deputy Commissioner’s Instructions 1.13;

(c) the Code of conduct for Victorian public sector employees 2015, in particular:

i. Public Trust 3.9;

ii. Being responsible for decision and actions 5.2;

iii. Compliance and legislation 5.6;

iv. Implementing human rights 8.3;

(d) the Misconduct and related policy; 16

(e) section 23(2) Corrections Act 1986 (Vic) (the Corrections Act); 17 and

(f) section 38 (1) and s.22 (1) Charter of Human Rights and Responsibilities Act 2016 (Vic) (the Human Rights Act). 18

[24] The Respondent submits that the Applicant’s conduct on 26 April 2018 constitutes a valid reason for termination because his conduct was in breach of the Respondent’s “central use-of-force philosophy” (the Use of Force Philosophy), 19 which implements and is given force by the obligations under the Corrections Act and the Human Rights Act.²⁰ Counsel for the Respondent confirmed that, while the Respondent in its own dismissal procedure had made findings as against each of the policy provisions reproduced above, the Commission is only required to find a valid reason for dismissal; and that if I am satisfied that the Applicant has breached the “central use-of-force philosophy” in such a manner so as to found a valid reason, it is not strictly necessary for me to make findings in relation to the other policy obligations.²¹ Counsel submitted that any breaches of these other policy obligations would essentially be as a consequence of the breach of the Use of Force Philosophy.²²

[25] As to the range of techniques prescribed by the Respondent’s polices, Counsel for the Respondent submitted that: “The policy does not proscribe that Corrections officers must use 35 techniques and only 35 techniques. We don’t say that. Nor do we allege that in the misconduct process…in order to ascertain what was reasonable and necessary, the Commission ought to have regard to the availability of those techniques, his knowledge of those techniques, his training on those techniques, and he could have used those techniques…” 23

[26] The Respondent submits on this basis that the question before me is whether the Applicant’s use of force was reasonable and necessary, 24 and that the answer to the question should be “no”. The Respondent submitted that in reaching this conclusion, I should consider that the Applicant’s conduct placed the prisoner, other prison officers and himself at risk,25 and that the Applicant had various alternative force and non-force techniques available to him, and there was no reasonable and necessary basis for the Applicant to depart from the Respondent’s procedures.26

[27] The Applicant submits that he “acted in accordance with his understanding of the proper techniques to contain a situation where a prisoner was acting aggressively towards him”. 27 The Applicant submits that therefore his actions do not constitute misconduct and that there is no valid reason for dismissal.28 At hearing, Counsel for the Applicant submitted that the Applicant’s conduct observed in the footage must be taken in the context of the following matters:

(a) the prison and the Chillwell Unit house violent and dangerous prisoners; 29

(b) the Applicant had a prisoner who was agitated, heading aggressively towards him; 30

(c) Prisoner X had been lawfully directed to return to a cell but had disregarded the direction; 31

(d) the Applicant took backward steps but the prisoner kept advancing and it required a split-second decision to be taken by the Applicant; 32

(e) the Applicant acted in accordance with his understanding of the proper techniques; 33

(f) the technique used by the Applicant was not prohibited; 34

(g) the force used was minimal and as a last resort; 35

(h) the Applicant’s action was an intuitive response to prevent the situation getting out of hand; 36

(i) the Applicant did not have time to “map out the proper response on a whiteboard” 37;

(j) if the Applicant had hit, struck, kicked the prisoner, there would have been a real risk of injury and potentially of matters escalating into a full-on brawl; 38 and

(k) overall, the Applicant “acted with reasonable force in the circumstances in a manner that’s mandated by the Corrections Act”. 39

[28] The Applicant submits that the “nature” of the termination is disproportionate “such that it “goes to the validity of the reason”. 40 That said, the Applicant concedes that the consideration of “other matters” under s.387(h) is where “the analysis [in relation to proportionality] falls”. I agree with the approach and have considered the “disproportionality” submission in my consideration at paragraphs [81] to [85] below where I deal with s. 387 (h).

[29] The Applicant confirmed that the Applicant was required to adhere to the policies referred to at [23] above. 41

[30] The parties have filed a table as to agreed and disputed facts which I have taken into account in my considerations.

[31] It is agreed that:

(a) the 26 April 2018 incident (the Incident) occurred in the Chilwell Unit, a unit for prisoners that have intellectual disabilities and cognitive impairments; 42

(b) Prisoner X did not follow Prison Officer Wallace’s direction, the Applicant then directed him to return to his cell. The prisoner disobeyed that direction; 43

(c) the Applicant followed Prisoner X. Prisoner X turned around and went towards the Applicant. The Applicant then applied force; 44

(d) the Respondent’s procedure required the Applicant to use reasonable force, only where necessary, and only in accordance with law. The use of force employed was to be such that the prisoner was not subject to unnecessary risk; 45

(e) a prison officer “may, where necessary, use reasonable force to compel a prisoner to obey an order”; 46 and

(f) the Applicant felt he excelled at his training and regards the application of procedure in his employment as being of absolute importance. 47

[32] I have set out below the evidence which the parties do not seriously challenge:

(a) the Applicant knew Prisoner X sufficiently well enough to know that he had a history of being volatile and aggressive; 48

(b) the Applicant admitted that Prisoner X presented as an overweight, middle agreed man with psychiatric issues; 49

(c) there was a verbal altercation between the Applicant and Prisoner X; 50

(d) the Respondent had in place a procedural regime for the use of force; 51

(e) the Applicant had been trained in tactical operations on induction and taught to use a variety of techniques, including non-contact force options, negotiation, communication and disengagement. 52

(f) the Applicant is expected to use these techniques if and when force is used in the prison; 53

(g) the Applicant received refresher training in 2016, 2017 and 2018; 54

(h) the Respondent’s benchmark for training its officers is that 65% of the prison cohort is to be trained annually; 55 and

(i) the Applicant received a work commendation for attending a prison riot. 56

CCTV Footage

[33] Counsel for the Applicant says that “the footage takes a fair bit of the guess work out of what actually happened because we can see for ourselves”. 57 Two different angles of the 26 April 2018 incident were admitted into evidence; the first, what could be considered the “main” angle, with a clear view of the incident from only a few metres distance, and the second, an angle from some distance and with an obscured view of the incident. The Applicant also tendered an excerpt of the “main” footage, slowed down and focussing on what the Applicant says are the key seconds of the incident. I have had regard to all of the footage in evidence in the matter.

[34] On the final day of hearing the Applicant tendered a chronology containing a description of the events conveyed in the CCTV footage of the incident, reproduced below:

[35] Counsel for the Respondent confirmed that the only disputed part of the chronology above is that at 3:14:30pm where it says “with the prisoner’s left arm moving upwards”, because that characterisation of the Applicant’s movement is “liable to mislead”. 58 The Respondent also submitted that the chronology is deficient in that it does not refer to “other prisoners being present”.59

My findings regarding the allegation

[36] I have had regard to all of the evidence, including the CCTV footage. For the purpose of my findings, I agree with the chronology provided by the Applicant at paragraph [34] above.

[37] The parties do not dispute that “Department procedure required the Applicant to use reasonable force, only where necessary, and only in accordance with law”. 60 The parties do not dispute that the Applicant was trained in various other techniques, not involving force, and that generally he is expected to use these techniques when faced with prisoner confrontations.61 The Respondent submitted that “This list of tactical options are the only responses legitimately available as “approved techniques” by Corrections Victoria. Anything outside this list is not approved and would not be endorsed”,62 however, at hearing Counsel for the Respondent, conceded that other techniques are not specifically prohibited so long as those other techniques are reasonable in the circumstances.63 I accept Counsel’s concession.

[38] The footage shows the Applicant and Prisoner X engaging in a heated discussion. As the audio is unavailable it is impossible to know what was said, nor is it possible to infer the force of the communication.

[39] From the footage, it appears to me that Prisoner X is walking with a slightly unsteady gait. The pace at which the prisoner approached the Applicant was not swift, and the movement of the prisoner’s arms appears to be only in the normal action of walking. In my view, there was ample room and time for the Applicant to move further away or take a course of action other than the one that he took. I do not accept that he was acting in self-defence and the material before me does not support a conclusion that he feared for his safety and the safety of his colleagues. 64 The footage shows that Ms Gellaty was some distance away from Prisoner X and the Applicant, such that a conclusion of an imminent threat to her safety cannot be supported.65 It follows that I also do not accept the Applicant’s proposition that had he adopted another technique his colleagues would have been placed at risk. The footage in my view supports the conclusion that the takedown of Prisoner X by the Applicant was swift and unnecessarily forceful. I do not accept that the Applicant’s response to Prisoner X’s failure to follow a lawful instruction was reasonable and necessary.66

[40] On the balance of probabilities, I am satisfied that the Applicant used unreasonable and unnecessary force in responding to the incident of 26 April 2018.

[41] On the basis of the above, it follows that the allegation is made out and the Applicant breached the Respondent’s policies in relation to the use of force.

Findings with respect to valid reason

[42] As stated above at [41], I am satisfied that the Applicant’s conduct, is in breach of the Respondent’s policies. I have formed the view that, to the extent that this conduct was an unauthorized deviation from the Use of Force Philosophy and related policies, the allegation has been made out by the Respondent. I accept the Respondent’s submission that the Applicant’s conduct seriously and negatively undermines the Respondent in its obligation to maintain public trust and confidence and disagree with the Applicant’s submission that the Respondent’s relying on this obligation is “flimsy”. 67

[43] I have taken into account the Applicant’s submission that that there is an unfortunate reality that employment as a prison officer means constant exposure to the risk of physical violence in enforcing custodial orders against prisoners. I have also accepted the Applicant’s evidence that the Chillwell unit was not his usual work location and that he had no specific knowledge of Prisoner X’s particular vulnerabilities. I have also taken into account the matters referred to at paragraphs [31] to [32] including the fact that that Prisoner X had not followed a lawful direction to return to his cell. 68 However, on balance, my observations of the footage are that even in this context the Applicant reacted prematurely and unnecessarily forcefully.

[44] Accordingly, I am satisfied that the breach of policy in relation to the allegation is sufficiently serious to conclude that there is a valid reason for termination of employment.

Notification of the reason for dismissal and given an opportunity to respond (s.387(b)&(c))

[45] It is necessary to consider and take into account whether the Applicant was notified of any valid reason(s) for his dismissal and whether he was given an opportunity to respond to any reason(s) related to his capacity or conduct.

[46] In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, a Full Bench of the Australian Industrial Relations Commission, dealing with a similar provision of the Workplace Relations Act 1996 (Cth), stated the following at [130]:

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[47] The opportunity to respond does not require any formality and this criterion is to be applied in a common sense way to ensure the employee is treated fairly. 69

[48] The Respondent submits that the Applicant was notified of “the allegation (together with particulars) in writing and offered an opportunity to respond”. 70

[49] I have found the unreasonable and unnecessary force used by the Applicant in responding to the incident of 26 April 2018 amounted to a valid reason for termination.

[50] The Applicant does not contest that he was notified of the reason for dismissal and given an opportunity to respond to the allegation. 71

[51] On the basis of the material before me, I find that the Applicant was given notification of the reason for his dismissal and provided with an opportunity to respond. This weighs in favour of a finding that the dismissal was not harsh, unjust and/or unreasonable.

Any unreasonable refusal to allow the Applicant to have a support person present (s.387(d))

[52] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”50

[53] The Applicant concedes that he was offered the opportunity to have a support person. 72

[54] This finding weighs in favour of a finding that the dismissal was not harsh, unjust and/or unreasonable.

Warnings about unsatisfactory performance (s.387(e))

[55] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance, before the dismissal.

[56] In this case, the reasons for dismissal related to the Applicant’s conduct, rather than his performance, so this consideration is not relevant.

Impact of size of the Respondent on procedures followed in effecting the dismissal and absence of dedicated human resource management specialists or expertise (s.387(f)&(g))

[57] The Applicant initially submitted that size and expansive resourcing of the Respondent means that it cannot be excused for its decision to terminate the Applicant without a valid reason and without observing procedural fairness. 73 However, the Applicant has since agreed with Respondent that this factor is not at issue.74

[58] I do not consider there to be any factors which might have impacted on the ability of the Respondent to follow a fair process in effecting the Applicant’s dismissal. This is a neutral factor in this case.

Other relevant matters (s.387(h))

[59] Section 387(h) provides the Commission with broad scope to consider any other matters it considers relevant. It is well established that a dismissal may be “harsh, unjust or unreasonable”, notwithstanding the finding that there is a valid reason for the dismissal. 75 The gravity of an employee’s conduct and the proportionality of dismissal to that conduct are important matters to be taken into account. The Commission should consider all the circumstances, and weigh the gravity of the misconduct and other circumstances telling against a dismissal being unfair with any mitigating circumstances and other relevant matters that might support the Applicant’s claim that the dismissal was harsh, unjust or unreasonable.76

[60] The Applicant submitted that even were I to find a valid reason, I should still find the termination harsh, unjust or unreasonable because termination was disproportionate; 77 and the termination was “procedurally unfair” due to the 14-month length of the process and an alleged “mischaracterisation of earlier alleged incidents” involving the Applicant.78 Further, the Applicant submits that I should have regard to the alleged difficulty that the Applicant will face in finding alternative employment in the field.79

Proportionality

[61] The Applicant submits that termination was disproportionate in circumstances where:

(a) the Applicant’s training was “defective”, and “potentially, out of date”, with his most recent training before the incident of April 2018 being fourteen months ago, a period that is inconsistent with the Respondent’s policies; 80

(b) the issue “could have been remedied by further training”; 81

(c) his employment performance history is “exemplary”; 82

(d) The Applicant had “never been subject to any disciplinary procedures”; 83 and

(e) the Applicant “should have progressed through the usual sequence of warnings before termination … whatever is said against [the Applicant] didn’t justify bringing his employment to an end”; 84

[62] The Respondent submits that:

(a) the breach of procedure by the Applicant was “far from trivial” and must be viewed in light of his “unique responsibilities for the care and custody of some of society’s most vulnerable members”; 85

(b) the Applicant’s conduct was a “radical departure from accepted technique and placed the prisoner [in] unnecessary and serious risk of injury”; 86

(c) the Respondent’s policy for training its officers is for 65% of the officer cohort to be trained annually; 87

(d) “Alternative forms of disciplinary action are always open to an employer” but that the test “remains whether the decision to dismiss (rather than chose a different disciplinary outcome) was sound, defensible or well founded”; 88

(e) the Applicant had been repeatedly and recently been counselled in relation to his obligations regarding the use of force; 89

(f) termination was not disproportionate given the Applicant’s performance history; 90 and

(g) the Respondent pointed to and adduced evidence relating to incidents of June 2017 and 3 March 2018. 91

[63] The Respondent confirmed that it only relies upon the Applicant’s performance history to:

(a) refute the Applicant’s claim that his performance history is excellent; and

(b) establish that the Applicant had been previously counselled about the Respondent’s use of force policy, and that it does not rely on the incidents beyond that limited scope. 92

Performance History

9 November 2015 – allegation re assault on another officer

[64] It is not in contest that the Applicant was involved in an incident involving a fellow officer on 9 November 2015. It is also not in contest that a written record of the incident was issued to the Applicant on 24 November 2015. Relevantly, the correspondence signed by Ms Melissa Westin states:

“ I am writing to you in relation to an incident in the Deakin Unit on 9 November 2015, where you have admitted to me that you physically assaulted one of your colleagues by pushing him on the chest, causing him to stumble backwards.

Whilst I accept your comments that you were frustrated with the criticism you had received from your colleagues about your conduct in an earlier incident, I remind you of your responsibility under clause 6.1 of the Code of Conduct for Victorian Public Sector Employees (No 1) 2007 (Code) to provide fair and objective treatment …

I confirm that this letter does not constitute formal disciplinary action against you as I have decided to address this matter informally with you by way of reminding you of your obligations in writing. If, however, I receive any further reports that you have engaged in conduct that is contrary to the standards set out in the Code, the reported conduct referred to in this letter, and any further alleged conduct, may result in a formal misconduct investigation in accordance with the Department’s Misconduct Policy.” 93 (emphasis added)

[65] There is limited material before me in relation to this incident, which I note occurred almost 4 years prior to the date of termination. Further, given the limited nature of the Respondent’s reliance on the Applicant’s performance history, and my findings at [42], [43] and [44] above, I have given little weight to this incident in my overall consideration.

18 – 21 September 2016 – allegation re failure to report for duty

[66] It is not in contest that the Applicant did not report for duty from 18 September to 21 September 2016, resulting in a letter to the Applicant, from the deputy director Lenard Norman dated 24 October 2016, 94 reminding the Applicant of his obligations to comply with the code of conduct:

“It has been reported to me that you failed to report for duty from Sunday 18 to Wednesday 21 September 2016 (inclusive).

I understand that you requested an extension of your annual leave for the above mentioned dates via email to the Metropolitan Remand Centre (MRC) Staff Office on Tuesday 13 September 2015. The request was made in order to extend your holiday overseas, to which you were advised via return email on the same day that the request was not approved due to operational requirements.

In a subsequent email to Ms Susan Agius, Operations Manager at the MRC at 17:55 on Friday 16 September 2016, you provided the following information regarding your non attendance at the workplace on 18 September 2016:

“Hello Maam I’ll be returning Monday with sick Cert, I’m on RDO’s from Thursday to Monday (Tuesday 2^nd Watch)”

I am further advised that you have since returned to work, however have not produced a medical certificate to account for your absences for your rostered shifts between 18 and 21 September 2018 (inclusive).

You requested additional annual leave with minimal notice, while overseas. This request was not approved based on operational requirements. You have then failed to advise the location of your non-attendance at the workplace on 18 September 2017 and 19 September 2016 within a reasonable period of time nor have you produced the appropriate evidentiary requirements for your access to personal/carer’s leave.

….

I can confirm that this letter does not constitute formal disciplinary action against you as I have decided to address this matter with you by way of reminding you of your obligations in writing.”

[67] At the hearing, the Applicant gave the following evidence in chief, when asked by his Counsel whether he recalled the incident: 95

“Do you recall that incident?  -I do recall that incident. What occurred there was I missed a connecting flight from JFK, in New York City, to Los Angeles, LAX, which was supposed to connect me to my flight back home to Australia, via Brisbane then on to Melbourne. That was simply all that occurred, I missed a connecting flight and as a result cost myself over $1000 in new accommodation for the evening and - well, I can’t recall how long I was stuck over there for, but yes.

Did you have any discussions, upon your return, about that issue?  -I tried to communicate that, but my explanation wasn’t accepted at the time. Again I received correspondence in relation to that and, again, it wasn’t referred to as disciplinary action of any nature at the time.”

[68] The Applicant gave the following evidence during cross-examination:

“Now, the next incident you gave evidence about for the first time is the subject of the next exhibit, ELG12, can you turn to that?  -Yes, I can.

You’ve just given evidence to the Commission that you missed a fight from JFK airport. Now, can you turn to paragraph 4, in italics, that document says that you sent a text message saying:

Hello Ma’am, I’ll be returning Monday with a sick certificate. I’m on RDOs from Thursday to Monday.

It goes on and it says:

I am further advised that you have since returned to work. You’ve not produced a medical certificate to account for your absences.

You omitted to tell the Commission about that just then, didn’t you?  -Pardon.

You didn’t tell the Commission about that just then, did you?  -I hadn’t read over this letter for quite some time and I don’t have a copy of it.

And nowhere here is it mentioned that you missed a connecting flight, correct?  -No, that must have been omitted from the record of conversation.

You accept, don’t you, that this is a written form of counselling?  -No, I view it more as a record of conversation.”

[69] Although an attempt was made to impugn the Applicant’s evidence broadly, the Respondent did not press the issue beyond general assertion. Whilst the Applicant’s evidence in relation to this issue was inconsistent, I am not prepared to make a dishonesty finding on the basis of the material before me.

[70] Further, given the limited nature of the Respondent’s reliance on the Applicant’s performance history, and my findings at [42], [43] and [44] above, I have given little weight to this incident in my overall consideration.

20 May 2017 incident – allegation re assault by a fellow officer

[71] An incident of the above date, in which the Applicant alleged he was assaulted by a fellow prison officer, was relied upon by the Respondent. 96 There is insufficient material before me to make any findings in relation to this incident and as such I have given it little weight.

June 2017 incident - allegation re assault of a prisoner

[72] It is alleged by the Respondent that the Applicant was involved in an “assault” of a prisoner on or about June 2017. 97 In support of the allegation, the Respondent relies on email correspondence from Mr David de Vries to Mr Paul Barrow at the time of the incident dated 18 June 2017, and a file note prepared by Mr Wise, Deputy Commissioner, Operations, dated 7 January 2019,98 some 18 months after the incident. The 18 June 2017 email provides as follows:

“ Details of an alleged assault by a Prison Officer on a Prisoner.

Alleged Victim (Prisoner):

[identifying information redacted]

Injuries: Nil visible however claims to suffer pain in the backs of his legs as well as a headache

Was asked if he wanted to make a police statement and declined (informed him that VicPol may still wish to speak with him anyway)

Alleged Assailant (Prison Officer)

Luke MAXITANIS

DOB 04/02/1991

Injuries. States nil physical injuries

Location Bellbridge Holding Cell

Time 0942 hours

Footage viewed and retained. Photos of holding cell and prisoner retained.

Chris Egan 29904 notified”

[73] The Applicant denies the allegation and states that he used “minimal force” in dealing with the prisoner who “refused to comply with numerous directions from me and other staff…” 99

[74] The 7 January 2019 file note refers to a meeting between Mr Wise, the Applicant and a representative of the Community and Public Sector Union (CPSU) on or about 28 July 2018. It is reproduced below: 100

“Prison Officer Luke Maxitanis, Metropolitan Remand Centre

On a date which I now believe to be 28 July 2017, I met with the above-named Prison Officer in my office at 121 Exhibiti on Street, Melbourne. Ms Robyn Edwards, Industrial Officer, Community and Public Sector Union, was also present; she turned up uninvited and I permitted her to stay.

PO Maxitanis had been involved in at least one, maybe two incidents in which there were concerns that he had used force unnecessarily on a prisoner, but there were insufficient grounds to institute disciplinary proceedings on the basis of what was able to be proven. The concerns were, in part, that Mr Maxitanis was reportedly unrepentant and unable to see anything wrong with his approach to prisoners; that he seemed to believe that the Corrections Act unreservedly gave him the power to issue directions and to use force to carry those directions out.

I am disappointed that no contemporaneous record can now be found of the discussion that I had with Mr Maxitanis; my normal practice would be to prepare a file note of such a discussion and retain it on file. I accept that no such record can, however, be found.

My strong recollection is that I impressed upon Mr Maxitanis that if his approach were to persist I was confident that I would, at some point, find that he was facing disciplinary proceedings for assaulting a prisoner or using excessive force. I believe I told him that the use of unnecessary force placed other staff, as well as himself, at risk - that if his actions precipitated an incident then others would feel obliged to support him and they could get hurt.

I certainly indicated that his approach would be under scrutiny - and that he had the opportunity to now change that approach rather than risk the sort of disc iplinary action in the future that could result in the termination of his services. I suggested that while my discussion with him was not a disciplinary outcome or part of a disciplinary process, he was being given the benefit of advance warning to amend the way in which he dealt with prisoners and used force. The tenor of my advice was, “Don’t say you weren’t warned.”

Mr Maxitanis indicated that he understood. Ms Edwards raised no issues, thanked me and both departed.”

[75] The interchange between counsel for the Respondent and the Applicant as to this matter follows: 101

“Yes. Can we turn to the next document, which is a file note of the meeting of Mr Wise and in that file note he recalls that he gave you counselling about excessive use of force, that’s correct, isn’t it?  -No, it wasn’t related to excessive use of force, no.

So he didn’t give you counselling about excessive use of force that time?  -No. We had a discussion about use of force in general, but he didn’t mention anything about excessive use of force, that I recall.

He told you that it was excessive, didn’t he?  -I don’t recall. Again, I was not provided - I can’t recall a meeting - full details of a meeting that took place a year and a half prior to this file note being produced.

You don’t recall things happening a year and a half ago, is that right?  -I don’t recall the full details of it, and I wasn’t provided with a record of conversation - - -

You seem fit, Mr Maxitanis, to give us lots of information about things happening all across your employment but you don’t recall this particular incident, is that your evidence?  -We had a discussion around use of force.

And he told you that you should be - that that force is excessive?  -I don’t recall. I don’t recall if he used the word “excessive” or not.

He told you to comply with the excessive use of force policy, didn’t he?  -He reminded me to always comply with all policy and procedure, yes, and then he went on to detail the commendation I received on my file.

So you agree then that he told you to comply with the use of force policy, is that your answer?  -Yes, which I have always done.

Yes, and you did nothing wrong in that incident, did you?  -No, I didn’t. I followed the Corrections Act, I followed the DCI 1.13.

That’s your position, isn’t it?  -It is.”

[76] On the material before me, I am satisfied that on this occasion the Applicant was reminded of the Respondent’s use of force policy. For the reasons at [83] below it is not necessary for me to determine whether this constitutes formal “counselling” or not.

3 March 2018 incident – allegation re use of force on prisoner

[77] It is not in dispute that the Applicant was involved in an incident on 3 March 2018, which led to a meeting with the Applicant, his support person Mr Ibrahim, Acting Operations Manager James Andrews and Acting Senior Operations Manager Susan Agius. 102 It is also not in dispute that on 13 March 2018 the Applicant was issued with a letter in relation to the incident on 3 March 2018, parts of which are reproduced below:103

“I am writing as a follow up to our discussion on Monday 5 March …

The basis for our discussion related to a use of force incident which you were involved in on Saturday 3 March 2018, upon review of the footage questions were raised in relation to the reason for execution of level of force used by you on a prisoner.

The other matter of concern was the fact that the report you submitted in relation to the use of force did not match the level of force used as per the CCTV footage.

You were provided the opportunity to view the footage, which you did.

You did explain that the intent was not to use such force and that you did not realise your own strength.

You were reminded and provided a copy of MRC Local Operating procedure 1.13 Use of force, Instruments of restraints and canine team

…

It was also explained to you that this matter is now finalised at the local level, but in the case the prisoner does make an official complaint then the matter will be referred to the appropriate authorities. It was also explained the goal of the meeting is for you to understand the requirements under the Local and Department Policies and Procedures and for you to learn from these discussions.

You stated you understood, and have taken on board all that was discussed.

Please note a copy of these discussion notes will be placed in your personnel file as a record of conversation.”

[78] CCTV footage capturing 51 seconds of visual footage of the incident and its context forms part of the evidence before me.

[79] At the hearing, the Applicant denied using excessive force, 104 notwithstanding the correspondence above recording his explanation at the time as “the intent was not to use such force and that you did not realise your own strength.”

[80] On the material before me, I am satisfied that on this occasion the Applicant was reminded of the Respondent’s use of force policy. For the reasons at [83] below it is not necessary for me to determine whether this constitutes formal “counselling” or not.

Conclusion re proportionality

[81] The Applicant conceded in evidence that the Respondent’s benchmark for training its officers is that 65% of the prison officer cohort is to be trained annually. 105 The Applicant had been given “refresher training” in 2016, 2017 and 2018.106 In this case, I do not think the evidence before me support’s the Applicant’s submissions that the Applicant’s training was defective.

[82] I do not make any findings in relation to the conduct relating to each of the matters in the Applicant’s performance history, however, on the basis of the material before me, though there is no formal written warning or disciplinary action recorded against the Applicant, I cannot be satisfied that the Applicant’s performance history is “exemplary” as described by the Applicant.

[83] The parties are in dispute as to whether the Applicant was “counselled” in relation to the incidents referred to earlier in this decision. Indeed, the Applicant went to great lengths during the course of the hearing to deny that he had ever been counselled. 107 I have carefully reviewed the correspondence from the Respondent to the Applicant as it relates to his performance history, and much of it is reproduced above. I have given little weight to the incidents of 9 November 2015, 18 – 21 September 2016 and 20 May 2017. Given my findings at [42] - [44] above as to the Applicant’s misconduct, and given the limited nature of the Respondent’s reliance on the Applicant’s performance history, I do not believe it is necessary to resolve this aspect of the dispute between the parties.

[84] For the purposes of my findings, I have given weight to the June 2017 and 3 March 2018 incidents and I am satisfied that the Applicant was aware, at least from the June 2017 incident, of his obligations in relation to the Respondent’s use of force policy, and the Respondent’s concerns regarding his use of force in both the June 2017 and 3 March 2018 incidents.

[85] On the basis of the above I am satisfied that the dismissal is not disproportionate.

Procedural issues

[86] Counsel for the Applicant contends that procedural fairness was not accorded to the Applicant, because decision-makers of the Respondent took into account his performance history without raising those matters with the Applicant prior to termination, including in the Termination Letter and investigation report. This submission was not fully developed and the Respondent did not squarely meet it. On the material before me, and given the Respondent’s confirmation of its position regarding performance history at [83] above, I am satisfied that the Applicant was afforded procedural fairness.

[87] The Applicant submitted that the delay of some 14 months between the incident and the termination of employment is “itself a source of unfairness”, 108 further, that in keeping the Applicant employed in a “crucially important service” over a 14 month period “One cannot but wonder how seriously the employer truly viewed this alleged act of misconduct in having continued employment for so long”109 and that whilst this “would be unacceptable in any employment context, [it] is significantly more serious here because [of] the Respondent’s enterprise agreement obligations” in clause 21.12(a). The relevant clauses of the Agreement are reproduced below:

“21 Management of Misconduct

21.1 The purpose of this clause is to:

…

(b) provide for the Employee alleged misconduct to be investigated and addressed expeditiously and with minimal disruption to the workplace;

…

21.12 Determination of discipline outcome

(a) The Employer will consider:

(i) the findings of the investigator; and

(ii) any recommendations as to the appropriate disciplinary outcome; and

(iii) any response of the Employee (including any admission of misconduct under clause 21.9); and

(iv) any prior disciplinary outcomes,

and then determine the discipline outcome that is to apply to the Employee. The discipline outcome must not be disproportionate to the seriousness of the matter.

…”

[88] The Applicant submitted that the “purpose” clause in 21.1 creates an “obligation” on the Respondent for expedition. The Respondent submits that it does not create an obligation and that it had complied with the relevant procedures.

[89] The Respondent further submitted that the delay does not render the dismissal unfair, particularly in light of the circumstances where:

(a) the Applicant was informed of the potential delay at the commencement of the process;

(b) the Applicant was provided with meaningful duties during the investigation (rather than requiring him to remain at home); 110

(c) The Respondent did not prejudge the outcome of the investigation by providing the Applicant with alternative duties in the control room during the investigation, a compromise that removed the Applicant from contact with prisoners;   ¹¹¹

(d) the Applicant suffered no loss of pay as a consequence; 112

(e) the Applicant contributed to the delay; 113 and

(f) the Applicant was offered EAP throughout the process and was able to avail himself of support if delay affected his wellbeing. 114

Findings on delay

[90] I have taken into account the totality of the submissions of the parties in relation to this issue and am not satisfied the lengthy delay was justified.

[91] The Respondent is a public authority investigating a prison officer facing serious allegations. The length of the delay in my view contributes to the anxiety and uncertainty caused to individuals facing allegations as to their conduct.

[92] While investigations into alleged workplace misconduct should not be rushed, I find the length of time was too long in this instance and I have taken this into account in coming to my overall conclusion at [99] and [100] below.

[93] I am satisfied that clause 21.1 of the Agreement imposes an obligation on the Respondent to investigate alleged employee misconduct expeditiously. Based on the above, I am satisfied that the Respondent failed to comply with clause 21 of the Agreement. I have taken this into account in coming to my overall conclusion as to whether the dismissal was harsh, unjust and/or unreasonable.

Applicant’s length of service and personal circumstances

[94] I have taken into account the Applicant’s length of service, which was over five years and without formal disciplinary action or written warning.

[95] I note that the Applicant is 28 years old, and the dismissal has caused him personal distress and financial loss. I have also taken into account the Applicant’s submission that “another relevant factor is the difficulty which Mr Maxitanis could expect in finding alternative employment in this field – or indeed in the wider arenas of law enforcement, emergency services or public sector employment at State or Federal levels – with this termination of employment on his employment record.” 115

Exercise of workplace rights

[96] The Applicant submits that he was a “thorn in their side” and that this frames the reason for termination. 116

[97] The Respondent contends that there is no basis for the submission and is “an abuse of process” and that the Respondent’s decision to dismiss was “not motivated by spite or prejudice”. 117

[98] On the basis of the material before me, I am unable to conclude that the “close proximity” of the termination with the exercise of a workplace right by the Applicant, renders the termination unfair.

Conclusion as to whether the dismissal was harsh, unjust and/or unreasonable

[99] Having considered each of the matters specified in s.387 of the Act, I find that the Applicant’s dismissal was not harsh, unjust and/or unreasonable. I have found a valid reason for dismissal. I have considered whether the decision to terminate the Applicant is disproportionate and in light of my findings at [81] to [85] above, I have concluded that the termination of the Applicant was not disproportionate. Whilst the Respondent’s investigation process was lengthy, and consequently in breach of the Respondent’s enterprise agreement obligations, in the circumstances of this case, in particular where the Applicant was performing “meaningful” non-prisoner contact duties for the entire period, and in light of my findings above [42], [43] and [44], this does not itself render the dismissal unfair.

[100] The gravity of the Applicant’s misconduct, as set out at paragraphs [36] to [44], outweighs the procedural unfairness associated with the delays in the investigation, as set out at paragraphs [86] - [93]. Accordingly, the unfair dismissal application is dismissed.

[101] An order dismissing the application has been issued separately.

COMMISSIONER

Mr R Millar of Counsel for the Applicant

Mr L Howard of Counsel for the Respondent

Hearing details:

9 October 2019, 10 October 2019, 29 October 2019 and 15 November 2019

Final written submissions:

Joint table of agreed and disputed facts on 21 February 2020

Printed by authority of the Commonwealth Government Printer

<PR718359>

 1   Witness statement of Luke Maxitanis dated 6 September 2019 (Maxitanis Statement) [7].

 2   Maxitanis Statement [8].

 3   Email to chambers from the Applicant dated 14 January 2020.

 4   [2020] FWC 902.

 5   Transcript PN1022-PN1064.

 6   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.

 7   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.

 8   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.

 9   Ibid.

 10   King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213, [24].

 11   Ibid.

 12   [2013] FWCFB 619.

 13   Witness statement of Ewan Lindsay Giles dated 30 September 2019 (Giles Statement), ELG-24.

 14   Transcript PN1092-PN1140.

 15   Transcript PN1129.

 16   Giles Statement ELG-24.

 17   Respondent’s Outline of Submissions (Respondent’s Submissions) dated 30 September 2019, [12(a)].

 18   Respondent’s Submissions [12(a)].

 19   Witness Statement of Ivan Ray Calder dated 30 September 2019 (Calder Statement) IRC-3, IRC-6.

20 Transcript PN1380-PN1395, PN138.

21 Transcript PN1395-PN1401.

22 Transcript PN1488.

 23   Transcript PN2351-PN2352.

 24   Transcript PN2349. See also Transcript PN1462.

 25   Respondent’s Submissions [23].

 26   Respondent’s Submissions [13]-[14].

 27   Transcript PN155.

 28   Applicant’s Outline of Argument dated 6 September 2019 (Applicant’s Argument) [15].

 29   Transcript PN678.

 30   Transcript PN155.

 31   Transcript PN161.

 32   Transcript PN161.

 33   Transcript PN155.

 34   Transcript PN166.

 35   Transcript PN336, 750.

 36   Transcript PN161.

 37   Transcript PN161.

 38   Transcript PN161.

 39   Transcript PN161-PN166 and Applicant’s Response to Directions Issued dated 22 November 2019.

 40   Transcript PN3826.

 41   Email to chambers from Applicant dated 29 November 2019.

 42   Table of Agreed and Disputed Facts provided 21 February 2020 (TOADF) Row 1

 43   TOADF Row 3

 44   TOADF Row 7.

 45   TOADF Row 10.

 46   TOADF Row 8.

 47   TOADF Row 14.

 48   TOADF Row 2.

 49   TOADF Row 2.

 50   TOADF Row 4.

 51   TOADF Row 9.

 52   Transcript PN 451 – PN468.

 53   Transcript PN469.

 54   Transcript PN539.

 55   Transcript PN536 – PN541, PN3094.

 56   Transcript PN247.

 57   Transcript PN46.

 58   Transcript PN3660; PN3691-PN3692.

 59   Transcript PN3660; PN3691-PN3692.

 60   TOADF Row 10.

 61   Transcript PN468.

 62   TOADF Row 9.

 63   Transcript PN2351-2352.

 64   See for example Transcript PN374, 721.

 65   See Transcript PN763 – PN778, PN902 – PN918.

 66   Witness Statement of Malcolm John Ridsdale dated 30 September 2019.

 67   Transcript PN2112.

 68   Transcript PN1133.

 69   RMIT v Asher (2010) 194 IR 1 at [14] – [15].

 70   TOADF Row 21

 71   TOADF Row 21.

 72   Applicant’s Argument [30].

 73   Applicant’s Argument [34]-[35].

 74   TOADF Row 25.

 75   B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 at 41.

 76   Ibid.

 77   Transcript PN169 - PN179.

 78   Transcript PN181, PN196.

 79   Applicant’s Outline of Final Submissions (Applicant’s Final Submissions) [24].

 80   Applicant’s Final Submissions [19].

 81   Transcript PN169.

 82   Applicant’s Argument [13(d)].

 83   TOADF Row 26

 84   Transcript PN172.

 85   Respondent’s Annotated Outline of Submissions dated 14 November 2019 (Respondent’s Annotated Submissions) [36] and [37].

 86   TOADF Row 26.

 87   Transcript PN536-PN540, PN3094.

 88   Respondent’s Annotated Submissions [38].

 89   Transcript PN1569.

 90   Respondent’s Annotated Submissions [40] – [42].

 91   Transcript, PN3195-PN3196; Giles Statement ELG-13.

 92   Transcript PN3186, PN3202-3210.

 93   Giles Statement ELG-11.

 94   Giles Statement ELG-12.

 95   Transcript PN242-PN243.

 96   PN3195-PN3196.

 97   Giles Statement, [24] and ELG-13.

 98   Giles Statement ELG-13.

 99   Transcript PN245.

 100   Giles Statement ELG-14.

 101   Transcript PN413-PN425

 102   Giles Statement ELG-15.

 103   Giles Statement ELG-15.

 104   Transcript PN434.

 105   Transcript PN536-PN541, PN3094.

 106   Transcript PN508-512.

 107   Transcript PN413-425.

 108   Applicant’s Final Submissions [21]; Transcript PN182, PN3912.

 109   Applicant’s Final Submissions [23].

 110   Respondent’s Annotated Submissions [46].

111 Respondent’s Annotated Submissions [51]. The Respondent went on to submit at [52] that this position was not a specialist role as any prison officer can work in this position and the Respondent deploys prison officers there when they are required to perform non-prisoner contact roles.

 112   Respondent’s Annotated Submissions [46].

 113   Respondent’s Annotated Submissions [45].

 114   Respondent’s Submissions [29].

 115   Applicant’s Final Submissions [24].

 116   Transcript PN207.

 117   Respondent’s Submissions [30]; Transcript PN1369