Extract from Queensland Government Industrial Gazette s2

[Extract from Queensland Government Industrial Gazette, dated 9 March, 2007, Vol. 184, No. 10, pages 115-141]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1999 - s. 74 - application for reinstatement

Damien Cassidy AND Department of Corrective Services (TD/2006/387)

COMMISSIONER THOMPSON 27 February 2007

Application for reinstatement - Witness evidence - Termination harsh, unjust and unreasonable - Reinstatement ordered - Application for costs - Application for costs refused.

DECISION

Background

An application was filed, under the Industrial Relations Act 1999 (the Act), by Mr Damien Cassidy (applicant) with the Industrial Registrar on 21 June 2006 seeking reinstatement as a Corrective Services Officer (CSO).

It was pleaded that the Department of Corrective Services (respondent) (Corrective Services) had terminated the applicant's employment on 9 June 2006 in a manner that was described as harsh, unjust and unreasonable.

The matter was heard in Townsville on 22, 23 and 24 January 2007, with submissions delivered in Brisbane on 12 February 2007.

Following the completion of evidence on 24 January 2007, the Commission, along with the parties, conducted an inspection of the female secure section of the Townsville Correctional Centre (TCC).

The purpose of the inspection was to allow the Commission and the respective Advocates to familiarise themselves with, amongst other things, the layout of the prison, in particular, the cell from which the prisoner was removed and the detention units (DU).

Applicant

Evidence in support of the application was given by Mr Daniel Cashman, Mr Stephen Ash, and the applicant.

Cassidy

The applicant commenced employment as a CSO on 18 October 1998 at the Rockhampton Correctional Centre and later (in January 2001) applied for, and was granted, a transfer to the TCC.

In the course of his employment, he attended regulatory training, from time to time, as required by the employer.

His evidence went to an incident that occurred on 14 November 2004 whilst he was rostered on duty at the Harold Greg Units at the TCC.

In the afternoon of that day, a code yellow (officer requiring assistance) was received from the female secure section of the TCC to which the applicant, in the company of Cashman and Ash, responded by running some 150 metres.

On their arrival at the main gate of the section they were initially unable to gain entry, but after having made radio contact with another officer, gained entry.

The three officers went to "B" Wing where the applicant, in evidence, stated that Ms Alieda Mast (a Supervisor in the female section) advised that she had secured a prisoner in the DU and that "she wanted us" to go to "A" Wing and bring a prisoner by the name of Johnson back to the DU.

In the company of a number of others, including CSO's Waugh, Cameron and Blackburn, they proceeded to the relevant cell where he advised the prisoner (Johnson) that she was to be escorted to the DU and for her to move to the back of the cell, turn around, and kneel down.

According to the witness, the prisoner stated "I don't have to go to the fucking DU as I have done nothing wrong". 2

The cell door was opened by CSO Waugh at which time the applicant and CSO's Cameron and Ash moved into the cell with the intention of removing the prisoner.

The prisoner continued to indicate that she was not going "to any fucking DU" and, at the same time raised her right hand in which there appeared to be a blue plastic cup.

It was the evidence of the applicant that the prisoner advanced towards him with the cup raised "as if to strike him".

He responded by stepping forward, taking hold of the prisoner's left arm and applying the Departmental approved restraint which had the effect of forcing the prisoner to the floor.

With the assistance of CSO Cameron, handcuffs were placed on the prisoner and she was then escorted to the DU.

Upon the removal of the handcuffs, the applicant returned to normal duties.

Following the incident, an investigation was undertaken by the Corrective Service Investigation Unit (CSIU), with the applicant being charged with Assault Occasioning Bodily Harm to the prisoner.

The applicant was, shortly thereafter, removed from duties at the TCC and shifted to Community Corrections.

The matter of the charge was subject to consideration, to the extent that when the applicant appeared before the Magistrates Court, the charge had been downgraded to that of Common Assault, which is of a lesser nature than the original charge.

On 21 January 2006, the applicant was found guilty of the charge, fined $1,000 and had no conviction recorded against him.

The decision of the Magistrate went on appeal, and subsequently overturned and returned back to the Magistrates Court for re-hearing.

Note: The decision to overturn the Magistrate's finding was released shortly after the applicant's employment had been terminated on 9 June 2006.

The matter is due to be re-heard in March 2007.

In further testimony, the applicant informed the Commission that a code yellow, in terms of urgency, was significant and reasons why such a code might be activated would include an officer being assaulted or requiring urgent assistance.

The prisoner involved in the incident was not previously known to the applicant.

The procedure utilised in transferring the prisoner to the DU was in line with Departmental policy for prisoners involved in altercations.

The prisoner, involved in the situation in question, had been non-compliant, with the applicant holding concerns in respect of possibly being assaulted with the cup.

The "take down" utilised a procedure for which he had been trained and was approved by the Department.

As the prisoner was being escorted to the DU, she struggled and continued to use abusive language.

The first knowledge that the applicant had of concerns in respect of his actions on 14 November 2004 was when he was interviewed by Detective Sergeant Ricketts of the CSIU on or around 21 January 2005.

In terms of his redeployment to Community Corrections, the applicant's evidence went to the duties he performed and difficulties encountered in having his remuneration levels reduced.

The applicant had, for a period of time, been suspended without pay, which was addressed through an appeal to the Public Sector Equity Tribunal where it was found that the Corrective Service's process at the time was flawed.

After the decision in January 2006 by the Magistrates Court, the applicant applied to WorkCover and had the claim accepted. He received statutory benefits emanating from the claim and, at the time of hearing, was receiving a reduced statutory benefit.

A number of matters were raised during a lengthy cross-examination of the applicant, including: 3

Incident report (page 35, line 34 of transcript):

"Matley: And in terms of an incident report form that Supervisor Mast would have required from the staff present on that day, that incident report form would have only been about the initial prisoner on prisoner altercation. Is that not correct?

Cassidy: No, it would have been about the whole thing.

Matley: So, your evidence is that your incident report contains specific detailed information about your use of force?

Cassidy: That's correct, it did.

Matley: Okay. And is it further your evidence that you gave that report to Supervisor Mast?

Cassidy: That's correct, yes.

Matley: And I think you mentioned that it should be on record?

Cassidy: That's correct, yes.".

Sequence of events leading to and the removal of prisoner Johnson from her cell.

Control and restraint methods.

Reasonable use of force (page 48, line 7 of transcript):

"Matley: Yes. The question that I have pertains to section 112 subsection (2), the officer - and it's under the title 'Authority to Use Reasonable Force.' 'The officer may use the force only if the officer reasonably' - '(a) reasonably believes the act or omission permitting the use of force cannot be stopped in any other way; and (b) gives a clear warning of the intention to use force if the act or omission does not stop; and (c) gives sufficient time for the warning to be observed; and (d) attempts to use the force in a way that is unlikely to cause death or grievous bodily harm.' It's correct to say, Mr Cassidy, that you never gave a clear warning that you were going to use force on the prisoner?

Cassidy: That's correct, I didn't have to I reasonably believed that I was going to be assaulted.

Matley: Mmm-hmm. And that's under section 112 subsection (3), 'However, the officer need not comply with subsection (2)(b) or (c) if it would create a risk of injury to (a) the officer using the force; or (b) someone other than the person who is committing the act or omission.'?

Matley: Is it your testimony that you believe, and I think that you used the words 'in your mind', that the presence of the cup was sufficient for you to jump straight down to 112 subsection (3)?

Cassidy: And the step forward.

Matley: Sorry, what was that?

Cassidy: And the step forward.

Matley: And her step forward?

Cassidy: That's correct, yes.".

Use of force requirements (page 49, line 4 of transcript):

"Matley: In the using of that force isn't the parity/disparity requirements - doesn't that force you to step back and say, 'Well, how' - 'what's the size of this person and am I going to, in taking what I think is reasonable actions, injure this person.'?

Cassidy: That's correct, yes. 4

Matley: And did you do that on this day? 5

Cassidy: Yes.

Matley: So, I think that your earlier testimony was that you had no opportunity to sort of see that there was a cup here or wherever it was until it was up here - -?

Cassidy: That's correct.".

Prisoner "not known" to the applicant (page 49, line 34 of transcript):

"Commissioner: But see, in terms of prisoner Johnson, she wasn't known to you, was she?

Cassidy: That's correct.

Commissioner: So, in terms of ability et cetera, that - that wouldn't have been a consideration for you, or would it?

Cassidy: It was a consideration. I didn't know who she was from a bar of soap.

Commissioner: Okay. So, what would you do on that basis? How would you assess - -?

Cassidy: Basically make a threat assessment and that's higher than it would be if you knew the person.".

Previous incident regarding threats of having boiling water thrown at the applicant (page 54, line 44 of transcript):

"Matley: In any of those other two incidents that I've just referred to was a prisoner in a situation where they were filling receptacles with perhaps boiling water and trying to throw it at you?

Matley: Can you tell the Commission a bit about this incident?

Cassidy: The prisoner was - filled a number of receptacles with boiling water from the Zippy boiler machine in the common room.

Matley: And which date was this incident?

Cassidy: That's the one in June [2004].".

Cashman

Mr Cashman has been a CSO at the TCC for approximately three years, having previously been employed in the Victorian prison system for a period of nine years, or thereabouts.

He gave evidence of the events of 14 November 2004 consistent with that given by the applicant.

In terms of his observation of the behaviour of prisoner Johnson, the witness, at paragraph 11 of his affidavit, stated:

"Johnson then became quite vocal and abusive saying words to the effect, I'm not going to the DU. She started swinging her arms around including the hand with the cup. When I say she was swinging them around, I mean that she was quite agitated at the time and vocal about being moved to the DU and she was expressing her disapproval by moving both arms around as she spoke.".

The applicant ordered the prisoner to kneel to the ground, a direction that was not complied with by the prisoner.

Asked by the Commission how he would have dealt with the situation had he been in Mr Cassidy's position, the witness, at page 72, line 41 of transcript, stated "I would have dealt with that situation exactly the same, with the other officer there to back me up.".

The witness, in cross-examination, described the removal of the prisoner as ". . .it was right. It was by the book. It was 100 per cent right" (page 79, line 36 of transcript).

The witness recalled being told by Detective Sergeant Ricketts to "appear" at the Magistrates Court when the charge against the applicant was being heard, but was not required to give evidence. 6

A CSO with seven and a-half years service at the TCC, Mr Ash gave evidence of his response to a code yellow on 14 November 2004.

He attended the incident in the company of CSO's Cassidy and Cashman and his recall of events on that day reflected that of both previous witnesses.

In his recall of CSO Cassidy entering prisoner Johnson's cell at paragraph 7 of his affidavit he stated:

"Before the cell door was open CSO Cassidy said something to the prisoner who I could not see at this stage. I can't recall exactly what he said but it was similar to, 'Move to the back of the cell.' The prisoner replied, 'What for?' CSO Cassidy said, 'We're moving you down to the DU.' She yelled, 'I'm not going to the fuckin' DU.' ".

In his evidence-in-chief, the witness described the take down of the prisoner in the following terms (page 91, line 30 of transcript):

"The prisoner was ground stabilised. She was used - was - when she went to strike, Officer Cameron grabbed her hand and - and restrained her from - from swinging and Damien [Cassidy] grabbed the other arm and they both placed her on the ground and restrained her with her - her arms behind her back so she couldn't do anymore damage and she was handcuffed on the ground.

. . . She was very verbal, very abusive. She was yelling incoherently at times. I remember - was still trying to explain to her on what we were going to do so she would not struggle and wouldn't hurt herself, but she struggled the whole way to the DU.".

In the course of cross-examination, the witness was taken to the incident involving the prisoner swinging a cup (page 97, line 22 of transcript):

"Matley: Would you say that the prisoner was swinging the cup?

Ash: She raised it as though she was going to strike, not just swinging it around. She actually raised it above - at shoulder height to - -

Matley: Yes?

Ash: - - as though she was going to swing it and strike.

Matley: Is it possible that being forced back into the cell she put it up in a defence mechanism?

Ash: No, not - not the way that she raised it, no. It was not as a defensive, it was more like she would - had it cocked ready to strike.

Commissioner: Did you know at the time it was a cup or you - -?

Ash: No, I didn't, sir.".

Respondent

Evidence was given on behalf of the respondent by Ms Laureena Waugh, Ms Alieda Mast, Mr Kevin Rooney and Mr Neil Whittaker.

The witness, a CSO at the TCC for the past seven years, was rostered for duty on 14 November 2004 at the Women's Correctional Centre.

The affidavit provided in the proceeding had attached, and relied upon, a Statement of Witness given to Detective Sergeant Ricketts on 20 January 2005.

At the time of the incident before the Commission, the witness had been in the employ of the respondent for almost five years.

On 14 November 2004, she was rostered as Unit Officer under the supervision of Supervisor Mast. 7

At around 2.30 p.m. on that afternoon, she was present when a prisoner complained to Mast that a number of female prisoners were yelling out to male inmates (within other divisions) and exposing themselves.

Shortly thereafter, she heard yelling and, by utilising the monitoring camera, witnessed the prisoner who had complained become involved in a physical altercation.

Punches were exchanged between the two female prisoners, in addition to hair pulling. Prisoner Johnson was punched in the facial area.

Along with a number of CSO's, she participated in actions that pulled apart the two combatants.

The aggressor in the altercation, prisoner Ahlers, had to be physically restrained and was escorted "straight to the detention unit".

The witness noticed that prisoner Johnson was calm and compliant as she was led (un-handcuffed) to "A" Wing by a sole CSO.

Once prisoner Ahlers had been secured in the DU, instructions were given by Supervisor Mast to place prisoner Johnson in the DU.

As she approached prisoner Johnson's cell, she observed CSO's Cassidy and Cameron standing outside the cell.

Prisoner Johnson was standing about one metre from the door (facing the door) and was identified to CSO Cassidy, as there were two prisoners in the cell at that time.

CSO Waugh unlocked the cell door and prisoner Johnson stepped toward her. When told she was going to the DU the prisoner, in a "raised voice", wanted to know why, as she claimed not to have done anything.

Before the witness could reply, CSO Cassidy stepped across in front of her and grabbed the prisoner with both hands, saying at the same time "because you are fuckin' ordered to".

The prisoner went very quickly to the floor, face down, where CSO Cassidy's knee was placed on her back while he went through the process of handcuffing her.

Whilst this was going on, the prisoner was shouting out "Get off me you fuckin' cunt, leave me alone".

According to the witness, the prisoner on the way to the DU "resisted a bit" but on the urging of the witness, calmed down.

At paragraph 32 of the statement, the witness made the following comment in respect of the incident:

"When I opened JOHNSON'S cell door to take her to the DU, she was not behaving in an aggressive or threatening manner in any way. She did not make any gesture to any person which could be taken as an attempt to assault anyone or resist. Although JOHNSON said, 'Why, what for. I haven't done anything', she was not aggressive. Furthermore I did not get a chance to respond to her as CSO CASSIDY stepped across in front of me and placed her on the floor.".

The witness had known and dealt with prisoner Johnson for some years and was of a view it was not in her character to become aggressive, physically violent or resist or assault officers.

The final paragraph of the statement went to her opinion that there was no justification for the actions of CSO Cassidy on this occasion.

Questions put to the witness in cross-examination covered a range of issues including:

Character and behaviour of prisoner Johnson (page 110, line 13, and further at line 36, of transcript):

"Timo: And - and it goes on to say, 'And it's not in her character to become aggressive' et cetera but - so for five years you've known her?

Waugh: Mmm-hmm.

Timo: And - and you're able - you're able to give evidence to say, 'That it's not in her character to become aggressive, physically violent or resist or assault officers'?

Waugh: Mmm-hmm. 8

Timo: So you're able to give that evidence - -?

Waugh: Yep. . .

Timo: Had you ever witnessed her involved in any physical altercations?

Waugh: Yes.

Timo: On what - on how many occasions can you recall?

Waugh: Probably two others.

Timo: In addition to the one on the 14th?

Waugh: No, before. Like through the five years that I've known her.

Timo: So she's been involved in two or three altercations?

Waugh: Yeah. Yeah, about two.

Timo: Two; with other prisoners?

Waugh: Yes.

Timo: And were they physical confrontations?

Waugh: Yes.".

Demeanour of prisoner Johnson prior to opening cell door (page 126, line 24 of transcript):

"Timo: Isn't it true too that prisoner Johnson was in an extreme stage of agitation when you were telling her, 'Come on, Donna [Johnson], we're going to the detention unit.' She was extremely agitated?

Waugh: Upset maybe, yes.".

Knowledge of prisoners history (page 132, line 16 of transcript):

"Timo: But in this particular case none of the officers who were standing at the door were aware of the background or the history of this prisoner other than yourself perhaps?

Waugh: Myself and Russell.

Timo: Yes. So is it not a reasonable conclusion for a officer who doesn't know the prisoner behind the door to exercise, right, there's a prisoner there, I will take no chances? Wouldn't that be a reasonable assumption?

Waugh: Yeah.

Timo: Yes. Because the prisoner could be a very violent offender; you have no idea. You were the only person there who - who had dealt with Prisoner Johnson before?

Waugh: Yeah.

Timo: And you did not have an opportunity to - to talk to the other officers about your relationship with that prisoner, it all happened so quickly?

Waugh: Yes.".

On the treatment of the prisoner (page 132, line 48 of transcript):

"Timo: Did you see them manhandle the prisoner or treat the prisoner roughly or any other - any other way that you thought was unprofessional?

Waugh: No. 9

Timo: Did you follow the prisoner and the two officers down to the detention unit?

Waugh: Yes.

Timo: And in your - you mention here in your statement that she resisted a bit?

Waugh: She resisted outside of B wing.".

Witness' surprise at incident being investigated (page 134, line 7 of transcript):

"Timo: Did you raise with anybody at the time when you returned to work concerns you had about the way in which the prisoner, Johnson, was dealt with?

Waugh: No.

Timo: Is there a reason you didn't do that or - -?

Waugh: I didn't think anything was come of it, so, yeah.

Timo: So didn't - when you say - -?

Waugh: The first I heard of it was when the police contacted me.

Timo: So it was a surprise when the police contacted you?

Waugh: Yes.

Timo: Was there a reason why you were surprised in that - and I don't want to put words into your mouth, but I'm just asking you indicated you were surprised, why were you surprised?

Waugh: Because I wasn't aware that there was a complaint laid towards Damien or anything like that.

Timo: And there was nothing about the incident that might have led you not to - to be surprised?

Waugh: No.".

Ms Mast, a CSO of some sixteen years standing, has held the position of supervisor since the year 2000.

Evidence provided by the witness was along the same lines as that given by the previous witness in that she relied upon a statement of witness given to Detective Sergeant Ricketts on 16 January 2005.

In the first instance her evidence went to the altercation between prisoners Johnson and Ahlers and the removal of Ahlers to the DU.

She issued instructions for prisoner Johnson to be removed from her cell and placed in the DU.

The witness was not present when prisoner Johnson's cell was opened and when she arrived the prisoner was on the floor of the cell, face down and handcuffed.

She could not understand the situation she found as prisoner Johnson was calm and had gone peacefully to her cell after the altercation with the other prisoner.

The witness accompanied the CSO's escorting the prisoner to the DU and gave evidence of the prisoner swearing and being abusive throughout that process.

It was her considered opinion that the actions of placing prisoner Johnson on the floor and cuffing her were excessive. 10

Matters covered in cross-examination included:

Removal of prisoner Johnson (page 167, line 46 of transcript):

"Timo: Okay. Was there anything about the removal of the prisoner from the cell that you felt involved rough handling of the prisoner, hitting of the prisoner, striking the prisoner in any way?

Mast: There was no striking. No, I don't even think that actually lifting her up to come out was rough. I was - I guess I - I was surprised that she was cuffed, because she's not - we - we know her. Like she is another person that is usually in and out - out of gaol, and we were confident enough that we knew her well enough that she would comply, and she would not be aggressive.".

Uncooperative prisoner (page 179, line 18 of transcript):

"Timo: Yes. Yes. Is it also true to say that in circumstances where you have a prisoner who was yelling and swearing and - and saying words to the effect, I don't want to move and so on, that it's reasonable for the officers concerned to make a judgment that that may be an uncooperative prisoner?

Mast: Yes, they would be uncooperative because they are resisting and they don't want to move and they're verbally abusive.

Timo: Yes. So in that sense that then moves us into that little grey area where it's either a voluntary prison removal or a prison extraction, isn't that the case? We're sort of now jumping a little bit to the side of a prison extraction because the prisoner is uncooperative, has been yelling and swearing; would you agree with that?

Mast: Well we would do - I think we would try and manage or talk the prisoner down first before we - depending on the situation, before we would go for the use of cuffs or use of force.

Timo: Yes. But if officers had no prior knowledge of the behaviour and level of aggression of this prisoner, they may not stop and make those sort of decisions that you would because you knew the prisoner well over many, many years. That's a fair comment, isn't it?

Mast: Yes.".

Placing of prisoner Johnson in the DU (page 182, line 10 of transcript):

"Timo: You were satisfied that the officers behaved professionally when - when the prisoner was put into the detention cell? You were quite satisfied with that?

Mast: Yes.

Timo: It was all done according to the way people should be trained to do this?

Mast: Yes. We moved her in, we put her down, they removed the cuffs and we - I spoke to her and then we moved out and locked the door.".

Re-examination of the witness went to the role of officers attending a code yellow and the issue of cell extraction (page 185, line 37 of transcript):

"Matley: As the supervisor of your section, what's your understanding of the role of the officers that come in on the call of a code yellow?

Mast: They're there to - I - respond to any assistant - respond to any incidents and to assist the unit officer or whatever area that the code is being called from to I guess - how can I say it? They come in to assist us if we need assistance to control a situation.

Matley: And on the day in question did you order a cell extraction?

Mast: No.".

Rooney

Mr Rooney, the Director - Human Resource Services Branch within Corrective Services, has held that position since 31 January 2005. 11

He identified the principal responsibility of the role as leading the human resource function, ensuring that policies, procedures and services contribute to the Corrective Service's business objective.

The affidavit of evidence tendered on behalf of the witness contained 39 paragraphs and 28 attachments.

The evidence in the affidavit was set out under a number of various headings.

Preliminary Matters

His initial involvement with the applicant was to inform him by correspondence of his relocation to the Townsville Community Corrections Office from 31 January 2005.

Shortly thereafter on 4 February 2005 he revoked the previous decision and allowed the applicant to return to the TCC.

On 25 February 2005, the witness became aware that the Deputy Director - General Correctional Operations notified the applicant of a renewed decision to relocate the applicant to Townsville Community Corrections Office effective from 2 March 2005.

The applicant and the respondent were in dispute over the payment of the aggregated shift allowance which formed some 28.5% of his salary.

On a recommendation from Deputy President Swan (of the Queensland Industrial Relations Commission), the allowance was reinstated on 17 March 2005 with a payment of back pay.

Show Cause Process

The witness initiated a show cause process in February 2006. The process is used by the respondent to put allegations to employees which allow for explanations and arguments to be advanced as to why they should not be disciplined.

The process relates specifically to the provision of substantive and procedural fairness.

Internal Investigation

The witness had an awareness of the CSIU investigation of the applicant following a complaint by a prisoner alleging an assault on 14 November 2004.

The awareness went to the preparation of a Brief of Evidence compiled by Detective Sergeant Ricketts and the applicant's appearance before the Townsville Magistrates Court.

Magistrate's Decision

The Director, Ethical Standards Branch, forwarded correspondence to the witness on 8 February 2006 ("KGR 11") in which he advised of the outcome of the applicant's appearance before the Magistrates Court.

The full content of that correspondence was as follows:

"1. I refer to the above-listed matter, with particular reference to the recently concluded trial in the Townsville Magistrates Court, where CSO Cassidy was found guilty of assaulting prisoner Donna Johnson.

2. The ESB is in receipt of and has reviewed the Magistrate's decision in this matter, and I attach a copy for your information.

3. Briefly, the Magistrate found CSO Cassidy to be an 'unimpressive witness', whose evidence was dogmatic and given in 'very forceful tones', and noted that CSO Cassidy's own witnesses could not corroborate his story. The Magistrate found that CSO Cassidy assaulted the prisoner, and failed to comply with the provisions of s. 112(2) of the Corrective Services Act 2000 (the authorised use of force).

4. Of particular note, the Magistrates observation that CSO Cassidy's conduct deserved 'almost a prison sentence in my view'.

5. CSO Cassidy was convicted of the offence, however the Magistrate ordered that no conviction be recorded, and fined CSO Cassidy the sum of $1000. 12

6. Under the circumstances, the ESB recommends that consideration now be given to commencing show cause action against CSO Cassidy, on the basis that his assault on the prisoner constitutes a breach of s. 87(1) of the Public Service Act 1996, in that it is disgraceful or improper conduct in an official capacity.

7. Also attached for your consideration, are copies of two CSIU investigation reports, relating to assault complaints made against CSO Cassidy by prisoner James Billy. Whilst there was insufficient evidence to prove the assault allegations, in both cases, the investigating CSIU officer has found that CSO Cassidy committed breaches of discipline. Given that at the time these reports were received CSO Cassidy had been charged with the assault on prisoner Johnson, the ESB elected not to progress them, pending the outcomes of CSO Cassidy's court hearing.

8. Given the outcomes of the court case against CSO Cassidy, you may now wish to consider the findings of the two CSIU reports in the context of any proposed show cause action.".

The Show Cause Letter

On 14 February 2006 the witness wrote to the applicant informing him of the information from the Ethical Standards Branch. Specifically he wrote:

". . .to be convicted of assault within the performance of your duties is an extremely serious issue and had obvious and serious ramifications on the employment relationship between yourself and the Department. After considering the decision of the Magistrate it appears that you may be liable to disciplinary action.".

In further correspondence generated by the witness on 10 April 2006, it was stated:

"Whilst it is relevant for me to take into account the findings of the Magistrates Court on 23 January 2006, it is for me to determine whether, based on the material available to me and on the balance of probabilities (rather than the criminal standard of proof of beyond reasonable doubt), you have engaged in the conduct alleged, that is disgraceful or improper conduct in an official capacity.".

Having considered the Court Brief ("KGR 9") and Investigation Report ("KGR 10"), the witness was satisfied on the balance of probabilities that:

the applicant's actions were not justified and they were excessive regarding control and restraint and the use of force;

the applicant "took over" from CSO Waugh; and

there was no apprehension of assault or threat to do so on the part of the prisoner either by words or body language.

The witness was satisfied that the applicant's training was sufficient for him to have handled the situation differently.

In particular reference to the control and restraint assessment where it related to parity/disparity formed part of the considerations.

Procedural Fairness

The evidence before the Commission was that the respondent had handled the issues raised in a manner which preserved procedural fairness for the applicant.

The applicant's representatives exchanged considerable correspondence with the respondent between 14 February 2006 and 24 April 2006 relating to the show cause matter.

At paragraph 35 of the witness's affidavit of evidence, the witness provided detail of an extension of time given to the applicant and clarification of the allegations:

"In my correspondence I provided the applicant with further clarification of the allegations against him, including the provision of additional information, and despite my view that there had already been sufficient time to respond I allowed the applicant a further fourteen (14) days to respond to the allegations. The allegations were clarified as follows:

'Misconduct, is as you identified in your response, relevantly defined in section 87 as "disgraceful or improper conduct in an official capacity". You are being subject to disciplinary action in relation to the conduct which you engaged in on 14 November 2004 towards a female prisoner of the Townsville Correctional Centre (namely Prisoner Donna Eileen Johnson) whilst performing duties as a Custodial Correctional Officer'.". 13

At the conclusion of the show cause process the witness presented the information to senior management including Mr Whittaker.

Cross-examination of the witness by Dr Timo went to numerous issues, including:

Witness' knowledge and understanding of Human Resource and Industrial Relations practices

Investigation processes available to Corrective Services.

Role of Ethical Standards Branch (page 198, line 28 of transcript):

"Timo: In cases of matters that go before the Ethical Standards Branch, you say they relate to official misconduct. Do they deal with any other type of activity?

Rooney: They may investigate issues in relation to the Code of Conduct under the - and the Code of Conduct is drafted in response to the agency's responsibilities under the Public Service Ethics Act.".

Role of CSIU (page 198, line 36 of transcript):

"Timo: Because you mentioned before that there is also the QSI Unit, Queensland Correctional Services Investigation Unit. That unit is staffed by serving officers of the Queensland Police Service?

Rooney: Correct.

Timo: Yes, and - and they make - they - let me rephrase that - they conduct investigations of a criminal nature?

Rooney: That's correct.

Timo: Yes, and then they take that to the next step - a briefing, the - the authorities within the Queensland Police Service to take matters in this case whether it's before the Magistrates or - or elsewhere - -?

Rooney: Yes.".

Material considered in the termination of the applicant (page 207, line 33 of transcript):

"Timo: So is it not fair then to say that when it comes to making a decision to terminate or discipline an employee, to some extent you're held hostage to the investigation, procedural correctness and so on, that some other branch has investigated and you are dependent to some extent then on what they've done?

Rooney: If that is the information that is presented to me, yes, I have to look at that information and determine whether it's appropriate to proceed, yes.

Timo: That's exactly what happened in the case of Mr Cassidy though, isn't it, in a sense. You eventually received the information that had come from the inspection unit?

Rooney: Yes.

Timo: You had no involvement in the way the inspection unit went about conducting its business?

Rooney: No, I didn't.".

Influence of Magistrate's finding on applicant's termination (page 210, line 1 of transcript):

"Commissioner: What influence did the fact that initially there'd been a finding of guilty by the Magistrate, even though no conviction was recorded, what impact did that have on your acceptance of the - the police investigation?

Rooney: Um, it was a confirming influence, but it was not the only influence.

Commissioner: Well, what was the other - what was - if that wasn't the only one, was it a major influence in - in the decision?

Rooney: It was - yeah, it was a principal influence, yes. 14

Commissioner: And what was the other influence?

Rooney: The Court briefings around the - the statements by witnesses.

Commissioner: Yes, but that was all part of what the Magistrate considered?

Rooney: I suppose, Commissioner, I was working from an onus of proof around balance of probabilities rather than beyond reasonable doubt.

Commissioner: I know there's different - there's different levels of proof and it's a - a balance of probabilities is - is distinctly different from beyond reasonable doubt?

Rooney: Mmm.

Commissioner: I accept that. But that's what you - you've then really just relied on the information as the Magistrate saw it but applied a different level of proof to it?

Rooney: I would principally, yes. Yes.

Commissioner: But simply on the papers before you?

Rooney: Yes.".

Training implications following incidents involving officers and prisoners.

Allegations (from prisoners) against officers.

Workplace health and safety implications arising from the incident involving the applicant.

Rehabilitation program (page 261, line 26 of transcript):

"Timo: In fact from - from what I've heard they're - you're a best practice model of public sector?

Rooney: Um, in terms of measured results we have had a greater success than others, yes.".

Reinstatement/re-employment (page 262, line 15 of transcript):

"Timo: Yes. But - but based on your experience and knowledge of the service, you don't see any issues?

Rooney: Well, it's hard for me to say in terms of I'm not privy to the intimate detail around the - but if you're talking in terms - as general employment relationship excluding injury, I would have some doubt as to whether there could be a reasonable employment relationship again.

Timo: And why do you say that?

Rooney: Well, with department causes to go down this pathway and ultimately decide to dismiss, then normally that is a - a pretty final course of action.

Timo: Isn't it true though if the Commission found otherwise and that the department had not acted correctly - as set out in the Industrial Relations Act, that - isn't it true there's no reason why you couldn't re-employ the employee or ex-employee?

Rooney: We - as a policy and as a practice we respect the recommendations of Commission.

Commissioner: Yes, there wouldn't be a recommendation of the Commission. If the Commission was to find in favour of the applicant and order reinstatement, then it would be an order?

Rooney: Yes. I can - -

Commissioner: And - and what - Dr Timo's asking you, is there any reason why such an order couldn't be complied with?

Rooney: I suppose in - I think it would be hard for me to make that personal - response to that.". 15

Whittaker

The final witness for the respondent, Mr Whittaker, the Deputy Director General of Strategic and Corporate Services, was the person who effected the dismissal of the applicant.

The decision to discipline the applicant came about after the witness had given "careful consideration" to the results of the show cause process initiated by Mr Rooney.

In correspondence to the applicant (forwarded on 12 May 2006), he was advised that having the allegations proven that had been made against him, the applicant had a period of seven days to make any written submissions he wanted, taken into account prior to the imposition of a disciplinary penalty.

The applicant's representatives replied in terms that, as the legal process had not run its course, it would be premature to take "disciplinary proceedings at this juncture".

The response from the witness was set out in paragraph 14 of his affidavit:

"I responded: 'it is important for you to be aware that in the event you have been charged with an offence the Department is not required to await the outcome of any criminal trial prior to proceeding with disciplinary action against you. . . It is for me to determine, based on the information currently before me, whether I find the disciplinary actions against you to be proven. I am not required to await the outcome of any criminal appeal you may have commenced before continuing with the disciplinary process against you, nor do I consider it necessary to do so'.".

Whilst numerous other matters were raised by the applicant's representative in a bid to halt the process, the witness did not find the arguments persuasive to the extent that the process should not continue.

Further in the witness's correspondence of 12 May 2006, the considerations relevant to the decision to terminate were identified as follows:

"(a) The seriousness of the allegations against you;

(b) Your overall work record, including previous disciplinary actions;

(c) Any explanation given by you;

(d) Any extenuating circumstances which may have a bearing on the incident or assessment;

(e) The degree of risk to the health and safety of staff and offenders;

(f) The impact of the misconduct on your ability to perform the duties of the position;

(g) The impact of the misconduct on public confidence in Department of Corrective Services.".

The applicant's representative raised the issue of the respondent not providing any warnings prior to the dismissal.

That issue was addressed at paragraph 32 of the witness' affidavit:

"Whilst the applicant may not have received prior warnings I believe my conclusion with respect to this issue is supported by the fact that the applicant was afforded an opportunity to respond to the detailed allegations concerning his conduct and performance.".

Paragraphs 45 and 46 of the witness' affidavit summarised the decision to terminate the applicant's employment:

"In summary I had concluded that the applicant's conduct was in direct contrast with the very role he was employed to perform. In consideration of the Public Service Act 1996 I was further satisfied that the applicant was guilty of 'misconduct' as defined. The actions of the applicant on 14 November 2004 did warrant dismissal.

My decision to dismiss the applicant was arrived at subsequent to a lengthy process whereby the applicant was afforded numerous opportunities to explain his actions from the date in question.".

Cross-examination touched on a range of matters including:

Working arrangements of the CSIU and the Ethical Standards Branch.

Investigation process for alleged assaults involving CSO's. 16

Role as decision maker in the termination of the applicant (page 282, line 1 of transcript):

"Timo: Now, as the decision-maker, do you - or do you instruct any of your officers to - to conduct investigations and provide you with recommendations before you go about issuing a final determination, in this case a termination of an employee's service?

Whittaker: In - in coming to a conclusion I usually sit down with the relevant officers, and they're usually the officers in our Industrial Relations section of Human Resources, and go through the evidence with them piece by piece before I make a decision in relation to the course of action to follow. I then issue instructions to the relevant officers in the Industrial Relations section who draft the decision which I then edit and then finally sign.".

Material relied upon to effect the applicant's termination (page 284, line 20 of transcript):

"Timo: Mr Whittaker, when you say that you had the police brief of evidence, is it your evidence that you went through that carefully?

Whittaker: I read it at the time, yes.

Timo: Did you go through each witness statement?

Whittaker: I read the - I read the material, I haven't got it with me, that was provided in the show - show cause documentation.

Timo: Yes. But is it your evidence that you took time to go through each - -?

Whittaker: Yes.

Timo: - - of the statements by the witnesses?

Whittaker: Mmm.

Timo: Yes. Is it also your - your evidence that you carefully weighed those up in your mind?

Whittaker: In my mind, yes.

Timo: How did you then deal with the contradictions in the evidence in the police brief?

Whittaker: I - I looked at the contradictions. My belief was the contradictions didn't - didn't change the facts of the case where an offender had been injured, allegedly by the applicant here, and that there was concern by a number of witnesses that indicated that the - the use of force was inappropriate at the time.

Timo: See, Mr Whittaker, you mentioned that a - a prisoner had been injured. The evidence we had yesterday by a witness who gave evidence by way of statement to the - to the police, was that the injuries were sustained in the altercation with another prisoner?

Whittaker: Yes, that's correct.

Timo: That's right. So on that point alone, your analysis is fatally flawed?

Whittaker: I don't believe so. I think there was evidence the other way, as well.

Timo: Well, where was that evidence?

Whittaker: In the brief of evidence.

Timo: Okay. The evidence yesterday by one of your senior officers was that the injuries sustained were sustained in the altercation [between Johnson and Ahlers]. Isn't it the position then that the reason why these anomalies creep in is your department did not conduct a separate investigation to ascertain to its own satisfaction the events that led up to the incident?

Whittaker: I believe on the balance of probabilities, which is the standard of proof necessary in this case, that the allegations were proved.". 17

Code Yellow (page 294, line 13 of transcript):

"Timo: Do you know what happens when a code yellow's - -?

Whittaker: People come in assistance, yes.

Timo: Yes. Fairly quickly - -?

Whittaker: Yes.

Timo: - - is your understanding and - -?

Whittaker: That's my understanding, yes.

Timo: And a code yellow generally is when there's an officer requiring assistance for any number of reasons?

Whittaker: Yeah, exactly, yes.

Timo: And where people might, for example, make an assessment in - in different circumstances, code yellow, would you - would you believe this is correct or not correct, would require prisoners - prison officers to act possibly more quickly than they normally would?

Whittaker: My - my expectation is a code yellow is that prisoner officers turn up pretty quickly and render the assistance and the support that's necessary to resolve the issue in front of them.

Timo: So that the code yellow can - can be turned off or withdrawn or whatever - -?

Whittaker: Yes.".

Submissions

The parties provided to the Commission (in agreed timeframes) written submissions in respect of the substantive matter.

Additional written submissions were put before the Commission relating to an application by the applicant for costs resulting from a "strike out" hearing conducted by the Commission on 19 January 2007.

The parties supplemented the written submissions by providing oral submissions in Brisbane on 12 February 2007.

Applicant

The written submissions of the applicant encompassed 41 pages in all.

A chronology of key events were identified from 14 November 2004 and up to and including 20 June 2006, the date upon which District Court Judge Wall QC set aside the Magistrates decision and ordered a retrial.

Close scrutiny was paid to the witness evidence of Cassidy, Cashman, Waugh, Mast, Rooney and Whittaker.

The evidence of Mr Cassidy was, according to the submission, placed in context in terms of the incident and the subsequent events.

It was submitted that the applicant's version of events was plausible and reasonable given the circumstances.

Witness Mr Cashman, an experienced Prison Officer, having worked in a number of facilities including "H" Block at Pentridge Prison in Victoria, gave evidence that the prisoner Johnson was vocal, swinging her hand and in an agitated state at the time of her removal to the DU.

Her aggressive manner had made him feel threatened.

The technique utilised by the CSO's in subduing the prisoner was correct in the circumstances.

Further evidence of Mr Cashman went to events after the incident and, in part, was covered at paragraph 21 of the submission:

"His further oral testimony is that he completed an incident report on the same day. He goes on to allege that no one discussed the incident with him and it was he who approached the CSI Unit regarding providing a statement regarding 18

the incident. His further oral testimony is that he was only interviewed by the CSI Unit (Sergeant Ricketts) in May 2005 nearly 7 months later. His evidence is that he was required to attend the Magistrates hearing, but he was not called to give evidence.".

On the evidence from CSO Waugh, the submission suggested that it should be treated with caution in that she had "a vested interest" to place a slant on the events in order to cover up her own failure to follow procedure and her lack of planning.

The point was made that CSO's did not initiate the complaint against the applicant, nor was there a debrief following the incident.

Supervisor Mast, in evidence, confirmed that no debriefing had occurred following the incident.

The majority of her evidence went to the events leading up to the incident.

The evidence before the proceedings from Mr Rooney was questioned in terms of credibility where it related to the involvement of Mr Peter Bottomley, Director of the Ethical Standards Branch, who had provided advice ("KGR 11") relating to the Magistrates decision which, according to the submission, was "plainly wrong or a misreading" of the decision.

In the matter of Craig Banditt v Department of Correctivel Services (No. B157 of 2005), the Commission's attention was drawn to a comment made by the Commissioner in respect of Mr Bottomley, which included the following:

"Accordingly, Mr Bottomley only had a one sided account of the case against Mr Banditt and an incomplete and flawed case in that.".

The submission, in finalising comment on witness evidence, was critical of that given by Mr Whittaker in respect of process and his considerations of material relied upon by him to effect the dismissal.

Other matters covered in the submission included:

Correctional Services Officers (CSO) Training;

Police Brief of Evidence;

Impact and relevance of District Court Appeal;

Application of Relevant Statutes and Case Law - mistake of fact as a defence; assaults unlawful; self defence against unprovoked assault;

Public Service Act 1996 (Queensland);

Industrial Relations Act 1999 (Queensland); and

a number of authorities were identified as relevant for the Commission's considerations.

On the evidence before the proceedings, the only possible conclusion that could, in the circumstances, be reached, would be for the Commission to find that the dismissal was harsh, unjust and unreasonable.

Reinstatement of the applicant to his previous position without loss of remuneration was sought with re-employment or compensation as a fall back position.

In seeking costs for the strike out application (No. B/2007/4), the applicant (in the substantive matter) relied upon the Report on Decision dated 19 January 2007.

The submission dealt with the power of the Commission to award costs as contained in s. 335 of the Act.

The events leading up to and including the hearing of the application were canvassed in the body of the submission. 19

It was submitted that reliance upon a letter from QSuper did not assist with the application as the applicant's psychiatric injury had been known for some time through the history of the WorkCover claim.

The respondent (in the substantive matter) had not sought clarification of the applicant's condition prior to filing the application.

Had such clarification been sought, it would have been clearly seen that the strike out application could not have succeeded.

The application was, in effect, an attempt to "medically retire" the applicant without going through the due process.

The Commission had found that extraordinary circumstances did not exist nor was the public interest aspect enlivened.

Costs were sought in line with rule of the Uniform Civil Procedure Rules 1999 on the Magistrates Court scale on a standard basis.

Respondent

The submission, filed on behalf of the respondent, was some 55 pages in length, including attachments relating to the Order from the District Court of Queensland (on the appeal from the Magistrates Court) and a number of authorities relied upon in the submission.

The introduction in the submission went to challenge the application that the dismissal of the applicant was harsh, unjust and unreasonable, and claimed that evidence and information before the proceedings demonstrated such an argument.

The applicant had been afforded numerous opportunities to respond to the allegations concerning his conduct prior to the dismissal.

The legislation required to be considered by the Commission in this matter was identified as:

Industrial Relations Act 1999 (Queensland) - ss. 73 and 77

Public Service Act 1996 (Queensland) - ss. 87, 88, 90, 91 and 92; and

Corrective Services Act 2000 (Queensland) - s.112(1), (2), (3) and (4).

Witness evidence was addressed in the submission between pages 9 and 26.

The evidence of Messer's Cassidy and Cashman was challenged on a number of issues, including:

Applicant acted on impulse and did not take the time to adequately assess the situation.

No warnings were given regarding the use of force.

The "cup" was not a threat to the applicant.

Claims about threatening material in the cup were fabricated after the fact in an attempt to convince the Commission of a perceived threat that did not exist.

Reference to "extraction" procedures was a thinly veiled attempt to justify the applicant's actions.

It was logical for Corrective Services to base their decision to institute a show cause process on the outcomes of the Magistrate's hearing of the criminal matter. That is the applicant was guilty of assaulting a prisoner.

It was logical for the Commission to fine the process of dismissal fair and reasonable.

The Commission could conclude the applicant provided no mitigation to deviate from the dismissal.

Authorities relied upon

Jack Ridgewell v State of Queensland (Acting Through the Department of Corrective Services) QIRComm 53 (26 April 2006); 182 QGIG 41;

Craig Anthony Banditt v Department of Corrective Services [2005] QIR 47 (26 August 2005); 180 QGIG 97; 20

Craig Banditt v Department of Corrective Services [2005] QIRComm 78 (2 June 2005); 179 QGIG 202;

Robert Walker v Gold Coast District Health Service [2001] QIRComm 177 (15 October 2001); 168 QGIG 186;

Robert Graham v Brisbane City Council [2001] QIRComm 173 (10 October 2001); 168 QGIG 170;

Jocelyn Margaret Howell v John Bennell's Discount Fuel [2001] QIRComm 64 (3 May 2001); 167 QGIG 53;

Brady Andrew Pein v Queensland Corrections [1999] QIRComm 10 (15 January 1999); 160 QGIG 64.

Other matters covered in the submission included:

no invalid reason for dismissal;

notification of reason for dismissal;

reasons for dismissal;

defining misconduct;

onus of proof and misconduct;

reasonable belief of guilt is sufficient;

investigation procedures sound;

period between incident and dismissal not fatal;

Magistrate's Court hearing;

employee had been warned regarding misconduct;

employee was provided an opportunity to respond to allegations - show cause process; termination notification.

Conclusion

On the basis of the evidence before the Commission, the application should be rejected.

Remedies

The submission addressed the issue of remedy should the Commission find in favour of the applicant.

The relationship between the parties was said "to have irrevocably broken down and is now beyond repair".

The applicant had not actually worked for the respondent for over 12 months having for that time been in receipt of WorkCover payments.

The applicant remained unfit for work at the time of the hearing.

The admission by the applicant of an inability to work precludes the awarding of reinstatement.

On the option of re-employment, such an alternative would, in short, require the creation of a position.

In terms of compensation, the applicant, by being in receipt of WorkCover payments, would have "suffered no monetary loss" as a result of his dismissal.

Finally, on the matter of monetary loss, at paragraph 137 of the written submission, it was stated:

"Applying a 'but for' test it is entirely conceivable that the applicant would not be in employment today if the dismissal had not taken place and more importantly it is arguable that the applicant has not suffered any detriment through loss of earnings attributable to the dismissal since he was deemed to be incapacitated prior to the date of the dismissal.".

Costs 21

The submission countered that of the applicant (in the substantive matter) in arguing that the strike out application was made with reasonable cause.

For s. 335(1)(a) of the Act to be enlivened, the Commission must be satisfied the application was made vexatiously or without reasonable cause.

It was submitted that Corrective Services held a genuine belief that some potential existed for them to succeed with the application.

The application was made in the interests of reducing overall costs and considered more appropriate to have been made three days before the hearing rather than on the first day of the hearing in Townsville when each party would have been ready to proceed with the witnesses in the substantive matter.

The application was made on a Thursday afternoon and heard the next day, thus minimising costs for both parties.

The Commission was encouraged to adopt the reasoning of President Hall in MIM Holdings Ltd v AMWU (2000) 164 QGIG 370 and find that Corrective Services were perfectly compatible with the holding of a belief that they were commencing proceedings which may well have succeeded.

The application for costs should be refused.

Conclusion

Unlike applications of a similar nature that come before the Commission, this particular matter had a somewhat unique history in that the allegation levelled against Mr Cassidy, that he had assaulted prisoner Johnson, which led to his subsequent dismissal for misconduct, had also been dealt with in the Magistrates Court and later the District Court of Queensland (on appeal).

On 23 January 2006, Magistrate Dwyer, sitting in Townsville, found Mr Cassidy guilty of unlawful assault and whilst a conviction was not recorded, there was a fine of $1,000.00 imposed.

The decision was set aside on appeal and is due to go to retrial in March 2007.

Shortly thereafter, the respondent commenced a show cause process on 14 February 2006 and following what must be regarded as a lengthy period of time terminated the employment on 9 June 2006.

The respondent, through evidence of both Mr Rooney and Mr Whittaker, informed the Commission that, in recommending (Mr Rooney) and deciding to dismiss Mr Cassidy (Mr Whittaker), the principle reasons relied upon were the Magistrates decision to find Mr Cassidy guilty of assault and the Police Brief of Evidence prepared for the Magistrates Court trial.

The fact that the District Court on 20 June 2006 allowed an appeal and set aside Mr Cassidy's conviction was of little consequence due to the different standards of proof required in each of the jurisdictions, according to the respondent's witnesses.

Under the Act governing the employment conditions of Mr Cassidy, the standard of proof required is that of the "balance of probabilities" that might, in lay terms, be best described as the matter in question is more likely to be true than not true.

This is the standard relied upon by the respondent to justify the dismissal of Mr Cassidy.

In the case of the Magistrate's Court, the standard is that of "beyond reasonable doubt" which, in lay terms, means there must be no reasonable doubt which might make a reasonable person hesitate in making a judgement.

This is a much stronger standard of proof than on the balance of probabilities.

The dilemma for the Commission in considering the argument advanced by the respondent is that in the Magistrates Court, a number of witnesses gave evidence that were not required to attend and give evidence before the Commission.

A reading of the Magistrate's decision (attached to the affidavit of Mr Rooney and not objected to by the applicant's advocate) identifies: Russell Spence, John Harrison, Judy McKay, Leon Cameron, Sergeant Gavin Ricketts, Andrew Bye, Laureena Waugh and Alieda Mast as persons that gave evidence before him.

Note: There may well be other witnesses that appeared and who were not named in the decision. 22

The Police Brief of Evidence (also tendered as an attachment by Mr Rooney and not objected to by the applicant's advocate) contained witness statements from: Sergeant Gavin Ricketts, Laureena Waugh, Donna Johnson, Russell Spence, Alieda Mast, Andrew Bye, Leon Cameron, John Harrison, Allen Blackburn, Daniel Cashman, Steven Ash and Colin Potter.

On the clear evidence of key respondent witnesses, the decision was made to terminate the applicant's employment based on statements of evidence, including many which were not subject to test before the Commission.

At no time in the course of proceedings were reasons given to the Commission as to why the majority of witnesses previously mentioned were not called in this matter.

The evidence, for example, of prisoner Johnson and CSO's Spence and Cameron, one must assume would have been of benefit to the Commission in its deliberations.

The Commission, having considered the aforementioned, is of a view that it would be less than safe and unwise for that matter to consider the application on evidence from outside those that have appeared in the Commission proceedings.

Witness Evidence - Relating to the Incident

The evidence of the applicant in some crucial areas was not necessarily contested during the proceedings. Such evidence included:

A code yellow requiring officers to immediately provide assistance was in place at the time of the incident on 14 November 2004.

The applicant attended in the company of the others to the officer requiring assistance.

Prisoner Johnson was agitated, abusive, and vocal prior to and after her cell door was opened, using words to the effect that she was not going "to any fucking DU".

Prisoner Johnson was not known to the applicant at the time of the incident.

The "take down" of prisoner Johnson was undertaken in line with the appropriate Departmental procedures.

Prisoner Johnson had in her hand at the time of her removal from the cell, an object which, it is safe to conclude, was a prison issue plastic cup.

The applicant appeared to be a witness of credit who took no "hits" under cross-examination that affected his credibility.

The two CSO's Cashman and Ash presented well as witnesses whose evidence was consistent with that of the applicant in respect of the incident involving prisoner Johnson.

The only witness for the respondent who was present and witnessed the incident was CSO Waugh.

From her evidence, one could glean that the actions of the applicant, at best, were premature and that she held a genuine belief that his actions were without justification.

Again, this witness presented well and, in the view of the Commission, fielded questions in cross-examination in a forthright manner.

The witness acknowledged that prisoner Johnson was not manhandled, treated roughly, or dealt with in an unprofessional way by the applicant.

Supervisor Mast was not present at the removal of prisoner Johnson from the cell, however gave evidence relating to the journey to the DU.

This witness gave the Commission no reason to doubt as to her recall of events.

Arising out of cross-examination, she accepted that, in placing the prisoner in the DU and the journey from "A" Wing to that facility, the officers had behaved professionally.

Process

On the examination of both the evidence and material before the Commission, the show cause process (itself) undertaken by the respondent appears to have been compliant with the relevant policies that governed the employment conditions of the applicant. 23

The flaw that has emerged in the respondent's defence of the application, in the overall scheme of things, was not the process, but the decision to base both the show cause and eventual termination on the Magistrate's Decision and Police Brief of Evidence without then bringing a "sizeable chunk" of that evidence directly before the Commission.

Finding

On 14 November 2004, the applicant, in the company of others, responded to a code yellow (Officer requiring assistance) initiated by an officer in the TCC.

As a result of a delay in gaining access to the facility, by the time the applicant did arrive, the principle reason for the code yellow (the altercation between two female prisoners) had effectively been dealt with by other officers.

Still, with the code yellow in place, the applicant attended "A" Wing of the facility (under direction) to assist with the removal of prisoner Johnson to the DU.

I accept, on the evidence before the proceedings that the prisoner was in an agitated state and did not willingly wish to be relocated to the DU.

From the inspection of the cell in question, on the balance of probabilities, I would be of a view that once CSO Waugh opened the door that the officers assisting (which included the applicant) would have been at the "coal face" in terms of dealing with the prisoner.

I accept that the applicant had no previous intelligence relating to the history of the prisoner and was required to make a judgement under the veil of the code yellow still being in effect.

The applicant, on the evidence, was a well trained officer who had a reasonable understanding of the requirements of s. 112 of the Correctional Services Act 2000:

"112 Authority to use reasonable force

(1) A corrective services officer may use the force, other than lethal force, that is reasonably necessary to -

(a) compel compliance with an order given or applying to a prisoner; or Example- A corrective services officer could use the force that is reasonably necessary to compel the searching of a prisoner under an order, given by a person in charge under section 26A (Strip searches generally), that applies to the prisoner.

(b) restrain a prisoner who is attempting or preparing to commit an offence against this or another Act or a breach of discipline; or

(c) restrain a prisoner who is committing an offence against this or another Act or a breach of discipline; or

(d) compel any person who has been lawfully ordered to leave a corrective services facility and who refuses to do so, to leave the facility; or

(e) restrain a prisoner who is - (i) attempting or preparing to harm himself or herself; or (ii) harming himself or herself.

(2) The officer may use the force only if the officer -

(a) reasonably believes the act or omission permitting the use of force can not be stopped in another way; and

(b) gives a clear warning of the intention to use force if the act or omission does not stop; and

(c) gives sufficient time for the warning to be observed; and

(d) attempts to use the force in a way that is unlikely to cause death or grievous bodily harm.

(3) However, the officer need not comply with subsection (2)(b) or (c) if it would create a risk of injury to -

(a) the officer using the force; or 24

(b) someone other than the person who is committing the act or omission; or

(c) a prisoner who is - (i) attempting or preparing to harm himself or herself; or (ii) harming himself or herself.

(4) The use of force may involve the use of -

(a) only the following weapons - (i) gas guns; (ii) chemical agents; (iii) riot control equipment; (iv) restraining devices; or

(b) a corrective services dog under the control of a corrective services dog handler.".

In particular, s. 112(3) allows for the use of discretion whereby s. 112(2)(b) or (c) would not have been complied with in the circumstances.

The Commission accepts that the prisoner had an object in her hand (the cup) and, in the absence of testimony from the prisoner, one could only make an assumption as to what her intentions may have been. That would not necessarily be wise.

CSO Cashman, in evidence, stated that he felt threatened and the applicant also had concerns.

The evidence of CSO Waugh would tend to point to an over-reaction by the applicant, yet if that was the case, one might reasonably ask "why then did she not report that position to senior management?".

The Commission finds that the applicant made use of the discretion available under s. 112(3) and, whilst to some it may be "questionable", to the applicant it was the correct decision.

Most importantly, in the consideration of the Commission was whether the force used was reasonable or otherwise.

Apart from the applicant and witnesses that appeared on his behalf, CSO Waugh, who was also present, accepted that the applicant's actions were not unprofessional. I find that the applicant used force that was reasonably necessary to compel prisoner Johnson to obey a direction to go to the DU.

There was some conjecture as to whether a direction was given to the prisoner, however there was sufficient evidence that the prisoner stated she was "not going to any fucking DU". The Commission accepts that her comments were made as a response.

The respondent, in reaching the decision to terminate the employment of the applicant, considered material that the Commission (for reasons given earlier) chose not to consider.

In considering the evidence before the proceedings, I consider that the dismissal of the applicant, in the circumstances, was harsh, unjust and unreasonable.

Remedy

The Commission, in deciding a remedy in matters where an application for reinstatement has been successful, must firstly consider whether reinstatement would be impracticable or otherwise in the circumstances.

The applicant sought reinstatement, without loss of remuneration or, as a fall back, re-employment, or failing that, compensation.

The respondent most strongly opposed the reinstatement, stating further that if re-employment was to be an option, a position would have to be created.

The respondent submitted that the applicant, due to being on WorkCover payments, had suffered no financial loss.

It was further submitted by the respondent that if the "but for" test was applied, it was entirely conceivable that the applicant would not have been in employment at the date of hearing.

The applicant, at the time of hearing, was suffering an incapacity for which a WorkCover claim had been accepted. 25

The injury subject to the claim had occurred prior to the incident of 14 November 2004 but compensation was not sought until much later in the peace.

The incapacity appears, for the moment, to be ongoing.

Having found the dismissal of the applicant to be harsh, unjust and unreasonable, it is fair to conclude that, had the employment continued uninterrupted, the position of the applicant, at the time of hearing, would have been that of an employee off work on WorkCover.

The "very good" rehabilitation program in place within Corrective Services would, at the appropriate time, been available for the applicant to access.

The applicant would not have been receiving "make up" pay for the difference between his reduced WorkCover rate and his normal rate of pay.

The Commission acknowledges that the medical incapacity of the applicant does present an unusual difficulty in that an order by the Commission to reinstate (for example within seven days) might not be able to be complied with under the mentioned timeframes.

The Commission is not of a view, after considering the evidence before the proceedings, that the relationship has broken down to the extent that a reasonable working relationship could not be restored. The applicant's work history with the respondent would fairly be regarded as reasonable.

The Commission accordingly orders that the applicant be reinstated to his former position and that, in accordance with s. 78(4)(a) of the Act, the applicant maintain continuity of service.

"(4) The commission may also -

(a) make an order it considers necessary to maintain the continuity of the employee's employment or service. . .".

The incapacity aspect should, in the circumstances, be addressed in a not dissimilar manner to that of other Corrective Services employees who have experienced a similar type of absence from work due to a WorkCover injury.

There should be no restrictions upon options to be considered by the parties.

The Commission is not of a view that any form of monetary payment should be awarded as part of this decision.

I so order.

The decision on costs relate to a one day hearing held on 19 January 2007 to consider an application by Corrective Services in Matter No. B/2007/4 where, in accordance with s. 331(b) of the Act, they sought to have the Commission dismiss or refrain from hearing the dismissal application of Damien Cassidy in Matter No. TD/2006/387.

The application was determined on submissions (only), with the Commission concluding in a decision delivered from the Bench on the same day, that the said application to strike out the application for reinstatement be refused.

For Mr Cassidy to succeed in the application for costs, the Commission must be convinced that the provisions of s. 335(1) (a) of the Act have been met:

"335 General power to award costs

(1) The court or commission may order a party to an application to pay costs, including witness expenses and other expenses, incurred by another party only if satisfied-

(a) the party made the application vexatiously or without reasonable cause. . .".

In opposing the application for costs, the Commission was taken to the MIM Holdings Ltd v AMWU matter where President Hall had stated:

"It seems to me to be more likely that s. 335(1)(a) is aimed at the case which was objectively recognisable as one which could not succeed at the time when the application was made.". 26

Further on in that decision, the President provided commentary on both "without reasonable cause" and "vexatiously":

"The conclusion that the application was not made without reasonable cause, largely determines the further question whether the application was made 'vexatiously'. The appellant relies on the decision of Commissioner Bougoure in Carter & Community Aid Abroad Trading Pty Ltd (1991) 137 QGIG 127 at 130 that a 'vexatious application' is one which initiates a proceeding in which the party bringing it is not acting bona fide, and merely wishes to annoy or embarrass his opponent, or which is not calculated to lead to any practical result. The definition may, with respect, be a little generous. In Hanrahan v Wesfarmers Dalgety Limited (1996) 68 IR 105 at 110 Wilcox CJ observed, 'The word "vexatiously" has a connotation of action taken to harass or annoy another party, an element of malice being involved.'. It is not necessary to resolve the issue.".

In the course of the hearing, both parties advanced substantial argument supportive of their individual positions.

The Commission, on the day, found favour with submissions put on behalf of Mr Cassidy but, in doing so, did not question the veracity of Corrective Services in prosecuting their case nor the material upon which they relied.

The Commission was of a view that the submissions put by Mr Adam Tayler of Shine Lawyers, on behalf of Mr Cassidy, were presented as a reasonable response to what were serious arguments advanced by Corrective Services.

One argument from Corrective Services, to which the Commission warmed, related to the financial cost that each party would incur by proceeding with the reinstatement application.

At page 6 of the Report on Decision, the Commission stated:

"The Commission certainly acknowledges that there is financial cost for all parties, including the Commission, in refusing to strike out the application, however, that in itself is not sufficient to find in favour of Corrective Service's application.".

Having considered the submissions and authorities from each of the parties, the Commission has not been able to conclude that Corrective Services made the strike out application vexatiously or without reasonable cause and, consequently, the application for costs is refused.

I so order.

J.M. THOMPSON, Commissioner. Appearances: Dr N. Timo for the applicant. Hearing Details: Mr D. Matley, of Department of Corrective Services, respondent. 2007 22, 23 and 24 January 12 February (Submissions) Released: 27 February 2007

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