Published 18 October 2017
In a recent case, Collins v Industrial Relations Secretary on behalf of the Department of Justice (Corrective Services NSW)  NSWIRComm 1051, the Industrial Relations Commission of New South Wales ordered the reinstatement of an employee despite his misconduct.
Mr Collins was employed as a First Class Correctional Officer at the South Coast Correctional Centre. He commenced employment with Corrective Services New South Wales (CSNSW) in 1994 and, prior to the events resulting in his dismissal, had only one “blemish” on his record of service early in his career. Since his commencement, Mr Collins was recognised on numerous occasions for his dedication to the role.
On 22 August 2016, the applicant was the Officer in Charge of an inmate transferred to the hospital for allegedly swallowing razor blades. The inmate was classified as high-risk due to past attempted escapes. Consequently, he was required to wear hand and ankle cuffs and was handcuffed to the bed in the hospital room.
The inmate required the use of the toilet and his handcuffs were removed to allow him to do this. He subsequently asked if he could use the shower. Mr Collins entered the bathroom and surveyed the security, ultimately determining there was no risk of him escaping despite a window present. Mr Collins claimed he believed it was sealed shut and too small for the inmate to climb out of.
Mr Collins directed the inmate’s ankle cuffs be removed to allow him to shower. Mr Collins and the two other guards on watch maintained the door remained open at all times during their watch when the inmate was in the shower.
During the inmate’s shower, Mr Collins and the two other guards were relieved. The relieving team maintained the door to the bathroom was closed when they arrived.
Mr Collins briefed the relieving team and mentioned the inmate’s name, that he was in the shower, his hand and ankle cuffs were on the bed, and he had been good.
During the relieving team’s watch, the inmate escaped by breaking the window in the bathroom and climbing out.
CSNSW claimed Mr Collins was in breach of procedures, protocols and instructions, specifically in that he: 1) failed to complete the log sheet; 2) removed the restraints of the inmate; 3) failed to keep the inmate under surveillance at all times; and 4) did not properly brief on the shift changeover.
Mr Collins argued it was common practice not to complete log sheets, nor had he ever produced an official log sheet before, although he had completed some on his own paper in the past. He conceded that removing the restraints was a “monumental error” on his part, however there was nothing in the handbook about protocol for inmates showering in the hospital. He denied the assertion that he failed to keep the inmate under surveillance.
Failing to complete log sheets was deemed by the Commission to be a minor error and it was held that “to rely on an officer ‘to complete a log sheet on his own on a piece of paper’ and then discipline that officer for failing to do so, is inherently unfair”. It was also mentioned that Mr Collins did not breach any policy by removing the inmate’s ankle restraints as there was no strict policy for the procedure to follow when an inmate wanted to shower.
The Commission held that whilst Mr Collins had been negligent, the allegations of serious misconduct were not made out, and it was harsh to dismiss Mr Collins when he had 22 years of an “unblemished” career. Further, it was unreasonable to dismiss him when the other employees were “treated far more favourably in terms of the punishment imposed”.
Mr Collin’s employment was ordered to be reinstated as the Commission rejected the CSNSW’s contention that they had lost faith and confidence in his ability to follow procedure.
However, the Commission refused to make an order for back pay, stating, “the negligence and complacency of the applicant do amount to misconduct such as to disentitle him to the benefit of any order for back pay”.
Key issues for employers
Employers should be aware that misconduct does not automatically entitle them to dismiss an employee. Misconduct must be of a sufficient seriousness to warrant summary dismissal. Such a dismissal may also be deemed harsh if other employees involved in the misconduct receive a lesser punishment.
Furthermore, employers cannot justify dismissal on the basis of a breach of policy, when previously that policy has not been enforced. Clear policies that outline expected procedures should be implemented and it is essential that any documents that must be completed by employees are provided.