Sacked for assaulting inmates: was dismissal harsh?


Sacked for assaulting inmates: was dismissal harsh?

A prison officer who was sacked for mistreating inmates has been reinstated, after a commission took into account the man's mental health issues.


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A prison officer who was sacked for mistreating inmates has been reinstated, after a commission took into account the man's mental health issues.

Treated for depression

A young man was employed by Corrective Services NSW from April 1994. He had a long and distinguished career as a correctional officer but also had some mental health issues to deal with. He first saw a psychiatrist in 2003 after experiencing workplace harassment and bullying. 

In June 2013, the officer was assaulted by a prison inmate whom he was escorting to court. He was punched to the head and upper body. In September 2013, he also experienced an incident at work when a fellow correctional officer refused to follow his instructions and was abusive towards him. In August 2014, he consulted a psychologist and was treated for depression.

Three incidents leading to dismissal

On 13 September 2014, a prisoner was delivered who was known to resist control, spit and threaten to kill police officers. The officer went to strip-search the prisoner, who resisted. CCTV footage showed the officer appearing to push the prisoner down onto a bench, a short sharp movement of the officer’s right arm and the prisoner verbalising and gesticulating.

Reporting the incident, the officer said the prisoner had been swearing and abusive and had made the sound of drawing up phlegm as if to spit on him. He had quickly moved his hand to cover the prisoner’s mouth and turn his head to the side. Two other officers, who had been in the vicinity, confirmed that the prisoner had been abusive and aggressive. Both had heard him make a sound as if about to spit and seen the officer’s hand move in the direction of his mouth.

The incident was reported to the Professional Standards Committee as involving the use of excessive force in pushing the prisoner onto a seat and striking his head or upper body. 

The second incident occurred on 19 December 2014. CCTV footage showed the officer striking another inmate on the head. The third incident, on 29 December 2014, involved the officer striking another inmate six times during a strip search. This time, the punches left red marks and bruising on the inmate’s face.

On 7 January 2015, the officer was suspended with pay pending an investigation. On 13 January 2015, he was arrested by police and charged with common assault in respect of the incidents on 13 September and 19 December 2014, and with assault occasioning actual bodily harm in respect of the incident on 29 December 2014. 

Criminal charges

In the Local Court, the officer pleaded not guilty to the three charges. However, he later changed his pleas to guilty. The two common assault charges were proved but no conviction was recorded. He was convicted over the third charge and ordered to enter into a bond. 

The officer appealed. In the District Court of NSW, Justice Garling upheld the appeal and quashed the conviction, referring to the officer’s good work record and the difficulty of working under stress with a history of depression and post-traumatic stress disorder.

Employer’s response to the misconduct

The officer still had to answer to his employer about the allegations of misconduct. He submitted a report in October 2015, emphasising his medical and psychological health issues, and apologising for his behaviour. The employer found that most of the allegations had been sustained. He was given seven days to resign. When he did not, his employment was terminated from early May 2016.

The officer applied to the Industrial Relations Commission of NSW for relief for unfair dismissal. He submitted that his actions had been out of character because of the mental state he had been in at the time. He had received psychiatric treatment and was confident such conduct would not occur again. A report from a psychiatrist supported this statement.

Was the dismissal unjust, unreasonable or harsh?

Commissioner Murphy found that the first incident, while constituting misconduct, had not been sufficiently serious to justify dismissal. Because the second incident had resulted in no conviction being recorded, the assaults in question were seen as falling at the lower end of the scale of seriousness. The third incident was the most serious one, but there had been provocation by the inmate and the injuries the inmate sustained had been relatively minor. 

The mitigating factors included:
  • the officer’s 22 years of unblemished, and in fact decorated, service
  • the significant level of provocation by the inmates
  • the medical evidence linking his depressive symptoms with his poor impulsive control and the assaults, and
  • the positive psychiatric assessment that he did not pose any significant risk of reoffending.
Commissioner Murphy’s conclusion was that, although the dismissal had been neither unjust nor unreasonable, it had nevertheless been harsh.

The commissioner ordered the officer to be reinstated from October 2016, although no order for payment was made for the period between his dismissal and reinstatement. His service was to be taken as not having been broken because of the dismissal.

W v Industrial Relations Secretary on behalf of he Secretary of the Department of Justice (CSNSW) [2016] NSWIRComm 1036 (11 October 2016)
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