Prison assault: 'gross and wilful misconduct'

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Prison assault: 'gross and wilful misconduct'

Two prison officers who denied knowledge of an assault against an inmate and provided ‘materially inaccurate’ reports of the incident were not unfairly dismissed, a tribunal has ruled.

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Two correctional officers who denied knowledge of an assault against an inmate and provided ‘materially inaccurate’ reports of the incident were not unfairly dismissed.

The Fair Work Commission found they had engaged in ‘gross and wilful misconduct’.

Background


Jason Reihana and Blake Reilly were employed by GEO Group Australia Pty Ltd (GEO) as correctional officers (COs)and were working at Parklea Correctional Centre (Parklea jail) at the time of the incident.

On Boxing Day 2013, inmate S found a water bottle while performing his cleaning duties and decided to take it back to his cell. Unbeknownst to him, the water bottle belonged to CO Waterfall. After discovering the inmate had taken his bottle, CO Waterfall ordered the inmate to follow him to ‘the chute’ which was an area that was not well covered by the CCTV system.

Not long after, CO Reihana entered the chute while CO Reilly was standing at a yard gate about 10m away from the entrance.

After the inmate apologised for taking the water bottle, CO Waterfall punched him in the face before throwing a series of blows which eventually sent the inmate to the ground. The punches fractured the inmate's jaw and wisdom tooth.

After the inmate recovered and began to stand, CCTV camera footage showed that CO Reilly entered the chute before the inmate and the COs left it not long after.

The inmate was transferred to Blacktown Hospital the following day for treatment before being taken to Westmead Hospital for surgery for his broken jaw and the extraction of his wisdom tooth. Inmate S told medical staff that he had been assaulted by a CO in the presence of other COs.

Investigation


An investigation commenced into the alleged assault and on 30 December 2013 the COs were identified for having some involvement in, or knowledge of, the incident.

They provided written reports detailing their recollection of the events. These were inconsistent with the CCTV footage that had been obtained and the COs were suspended with pay pending the outcome of the investigation.

Mr Reilly, in a report he filed on 30 December, said the inmate had entered the chute in order to collect laundry trolleys and that he himself entered the chute later to check the trolleys had been collected. But the CCTV footage fails to show any such laundry trolleys. He asserted in the report that he had no knowledge of the incident despite entering the chute only a matter of seconds after the last punch was delivered.

Mr Reihana in his filed report made no mention of any physical assault despite the fact he was within the chute for the entirety of the incident. He submitted that an argument had come about between CO Waterfall and the inmate regarding the absence of a nurse at the medical clinic.

In the criminal proceedings, he confirmed that ‘he was just a few feet away’ from CO Waterfall and the inmate but that he didn’t see the ‘few movements’ that were shown on the CCTV footage. The movements refer to the punches and blows made by CO Waterfall.

GEO conducted an investigation and interviewed CO Reilly on 6 February 2014. CO Reihana was not available and so was never interviewed. The final report was filed to the general manager on 20 February 2014. He decided to terminate the men's employment and this was followed by a letter the next day outlining the reasons for dismissal.

The letter outlined that the COs had been involved in serious misconduct when they failed to report the incident and then presented a materially inaccurate written submission.

The COs maintained their position regarding the incident but also claimed there were procedural defects in the investigation which made their dismissal unfair. This included the fact that CO Reihana was never interviewed and was not given an opportunity to respond.

Judgment


The Fair Work Commission turned to whether the dismissal was unfair having regard to whether it was ‘harsh, unjust or unreasonable’ under s387 of the Fair Work Act 2009 (Cth).

Having considered Mr Reihana’s report and the evidence, the Fair Work Commission found that he must have seen and heard the assault as he witnessed it from close proximity.

Similarly, Commissioner Cambridge did not accept Mr Reilly's evidence that he had no knowledge of, or an insufficient level of knowledge of, any incident so as to prompt any reporting.

 The reports were found to be ‘deliberately and materially misleading’ and this level of dishonesty was a valid reason for dismissal.

The commission agreed with the applicants' claim that there were unfair defects in the dismissal process. It was held that the applicants ‘were not provided with a fair and just process’ that enabled them to respond to the findings in the investigation report and the reasons relied on for their dismissal.

However, the commission held that although GEO’s dismissal was a ‘seriously flawed process’ which failed to provide the applicants with the opportunity to be heard, it did not outweigh the seriousness of the misconduct of the applicants.

The men's application for unfair dismissal was dismissed on the grounds they had engaged in gross and wilful misconduct. This constituted a valid reason for dismissal.

Jason Reihana and Blake Reilly v The GEO Group Australia Pty Ltd (U2014/5037 and U2014/5711)
 
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