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In a recent decision of the NSW Industrial Relations Commission (NSW IRC), a senior corrective services officer (the Employee) was reinstated following his dismissal for involvement in an incident which lead to the escape of a maximum security inmate (Collins v Industrial Relations Secretary on behalf of the Department of Justice (Corrective Services NSW) [2017] NSWIRComm 1051).

The Employee was part of a three person escort guarding an inmate sent to hospital who claimed to have swallowed razor blades.

A number of hours into the inmate’s hospital stay, he requested to take a shower in the hospital room’s en suite bathroom. The Employee decided to allow a fellow officer to remove the inmate’s hand and ankle restraints to allow him to shower without the risk of slipping and injuring himself. The bathroom door was left ajar so that the inmate could remain under surveillance by the officers in the hospital room.

While the inmate was showering, the hospital escort, including the Employee, was relieved by three other correctional services officers who were briefed about the inmate and the conditions of the escort by the Employee.

Shortly after the change-over, the inmate secured the bathroom door closed with an item of his clothing, smashed a small window in the bathroom and escaped. He was recaptured a week later.

Corrective Services NSW (the Employer) conducted an investigation into the incident and determined the Employee’s conduct was sufficient to warrant his dismissal.

The Employer’s reasons were that the Employee:

• Failed to follow proper procedure by failing to complete a hospital escort log sheet as required by his Employer’s policy;
• Failed to follow proper procedure for a maximum security inmate when he made the decision to remove the inmate’s restraints;
• Failed to keep the inmate under surveillance at all times – the relief officers told the investigator that the bathroom door was closed when they arrived, this was denied by the Employee and his fellow shift officers;
• Failed to properly brief the relieving officers when he did not mention that there was a sealed window in the bathroom; and
• Made false and misleading statements to his Employer when he said that the bathroom door remained open during his shift.

Following his dismissal, the Employee made an application to the NSW IRC seeking reinstatement on the basis that the dismissal was harsh, unjust and unreasonable. He argued that whilst he had made some errors in judgement on the day, his conduct was not serious enough to warrant dismissal and that a number of the allegations relied upon by his employer were unfounded. He also claimed that his treatment compared to that of the other officers involved was disproportionate.

The NSW IRC looked at the full set of circumstances including the investigation and its conclusions.

The NSW IRC found that although the Employee had committed some acts of misconduct (such as deciding to remove all the inmate’s restraints and failing to inform the relief officers about the window in the bathroom), this misconduct was not deliberate or significant enough to warrant dismissal, particularly in light of the Employee’s 22 year career as a correctional services officer. Additionally, the Employer did not have set procedures for dealing with inmate requests to take showers in hospital and so the Employee used his own judgment. Similarly, the Employer had not provided the employee with a hospital escort log sheet on the day and so it would be unfair for the employer to use the Employee’s failure to complete it as a reason for his dismissal.

As to the allegation that the Employee had failed to keep the bathroom door open and misled his Employer about it, the NSW IRC found this could not be substantiated. There were equal amounts of conflicting evidence on this issue and there was no rational reason for the Employer to conclude that the door was closed or that the Employee had lied about it.

And finally, the NSW IRC found the harshness of the dismissal was compounded by the Employee’s length of service and good employment history, particularly when the five other officers involved were not dismissed and received much more lenient sanctions.

The NSW IRC held that the dismissal was harsh, unjust and unreasonable and warranted reinstatement. However, it acknowledged that the Employee was not entirely without fault and so did not make any orders for back pay.

For employers generally, this decision contains some good lessons about the factors to consider when contemplating termination of an employee’s employment following a specific incident:

• How serious was the alleged misconduct? Did the employee act in direct defiance of a reasonable and lawful direction or was their conduct the result of misguided judgement influenced by the circumstances?

• Is it more likely than not that the misconduct actually occurred? In this case, there was an equal amount of conflicting evidence about whether the bathroom door remained open to allow surveillance of the inmate. In the circumstances, the employer had no reason to prefer one version of events to another and so the allegation could not rationally be substantiated.

• What is the employee’s employment history? Is the employee a long serving employee? What is their employment record like? Have there been any other similar or recent incidents or does the incident in question stand alone?

• Who else was involved and what have been the consequences for them? In this case, there were six correctional services officers involved in the incident and only one was dismissed. This lead the NSW IRC to a finding that the dismissal was harsh.

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