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Recap

Full appeal decision here.

My previous report here.

The Applicant in this matter a corrections officer win a jail was dismissed for using force against a detainee who refused to cooperate. We learn from this decision that corrections officers have an extraordinary duty to restrain themselves from restraining the detainees.

The Applicant commenced employment with the Respondent in July 2007 as a Correctional Officer.

On 18 June 2018, the Applicant was involved in an incident at the workplace in which he used force on a detainee while trying to return the detainee to his cell. The incident was captured on closed-circuit television (CCTV).

The respondent company in this matter requested and was granted anonymity in this private hearing.

The Applicant was suspended with pay on 20 June 2018 and was advised the next day in writing that: The subsequent investigation report dated 31 October 2018 concluded that on the balance of probabilities that the allegation had been made out.

The appeal

The applicant had eight grounds on which the Commissioner’s decision ought to be overturned.

Of the eight grounds, the Full Bench of the Fair work Commission upheld five; stating that the Commissioner drew the wrong inferences from unchallenged or incontrovertible evidence as to the primary facts, with the proper conclusion should have been that the use of force by the applicant could not reasonably be characterised as unreasonable or unnecessary.

Re-determination of the applicant’ unfair dismissal remedy application

The FB:

“It is next necessary for us to determine whether the applicant’ dismissal was harsh, unjust or unreasonable…we find that there was no valid reason for the applicant’ dismissal related to his conduct or capacity. For the reasons we have earlier set out, we do not consider that the use of force by the applicant upon Prisoner X was unreasonable or unnecessary.

“Although the particular force manoeuvre used by the applicant may not have been the most appropriate for the situation and may not have conformed to his training, it is necessary to take into account the fact that the applicant was faced with an aggressive and psychiatrically ill person, feared he was about to be assaulted, was required to make a split-second judgment as to how to respond, and did not inflict any injury upon Prisoner X.

Taking the above matters into account, we find that the applicant’ dismissal was unjust and unreasonable because there was no valid reason for his dismissal, and harsh because of the factors we have considered in respect of s 387(h). Accordingly, we find that he was unfairly dismissed”.

Remedy

The FB decided to delay the “remedy” decision, instead allowing time for the parties to “settle” the matter by submitting their proposal(s) within 14 days.

The BIG question here is: will the applicant be reinstated?