Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees and Australasian Correctional Management [2002] QIRC 120 (2002) 170 QGIG 451

16 August, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 451 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees and Australasian Correctional Management (No. B300 of 2002) COMMISSIONER FISHER 5 August 2002 Application for Reinstatement – Death in Custody – Inmate allegations – Investigation – Applicant to be transferred – Verbal abuse of inmates by applicant – Incident in Airlock – CERT called – Applicant suspended on full pay – Breach of Code of Conduct – Disciplinary hearing – Applicant dismissed – Gross Misconduct – 4 weeks in lieu – Decision appealed – Dismissal upheld – Procedural Fairness found – Alleged inmate conspiracy – Previous warning – Dismissal warranted – s. 77 Industrial Relations Act 1999 – Applicant found to have provoked a serious and potentially dangerous incident – Applicant found to have breached Code of Conduct – Application refused. DECISION On 3 January 2002 an inmate of the Arthur Gorrie Correctional Centre died while in custody. This inmate was resident, until his death, in the unit where Corrective Services Officer Mervyn Ngatai worked. Deaths in custody are the subject of a police investigation as well as an internal prison investigation. On 8 January 2002, when the police were present at Arthur Gorrie investigating the inmate’s death, three other inmates housed in Mr Ngatai’s unit made allegations to the police that Mr Ngatai had made insensitive and demeaning comments to the inmate shortly before his death. The police reported the allegations to the Correctional Manager, Intelligence, Larry McGregor, who relayed the information to Acting Operations Manager, Steve Murray. Together, Mr McGregor and Mr Murray interviewed the three inmates who made the allegations to the police. Mr Ngatai was present in the unit when the interviews occurred. As a result of the allegations made by the inmates Mr Murray discussed with Mr McGregor a change of units for Mr Ngatai until the allegations were dealt with. Mr Murray met with Mr Ngatai at about 2 p.m. on the afternoon of 3 January 2002. He advised Mr Ngatai that allegations had been made against him. Sufficient detail of the allegations was given by Mr Murray for Mr Ngatai to identify the inmates making the allegations without the names of the inmates being revealed. Mr Murray informed Mr Ngatai of the decision to move him to another unit for the start of his shift on 9 January 2002 pending the outcome of the investigation into the allegations. After meeting with Mr Murray, Mr Ngatai did not immediately return to his unit. On his way out of the staff dining room where the meeting had been held, Mr Ngatai encountered Reginald Whitmore, another correctional officer who had been Mr Ngatai’s partner in certain units and his supervisor for a period of time. On 8 January 2002 Mr Whitmore was acting as Correctional Manager. Mr Ngatai told Mr Whitmore of the complaints inmates had made. Mr Whitmore was unaware that complaints had been formally made and assumed it was an off hand remark made to another officer. He suggested to Mr Ngatai that he talk to the inmates in his unit and see whether they had any “whinges”. Mr Whitmore and Mr Ngatai agreed in evidence that it was their practice to discuss any complaints an inmate had about an officer with that inmate before the formal process commenced. Mr Ngatai said that Mr Whitmore gave him a piece of paper to record the whinges of inmates. Mr Whitmore cannot recall doing so. After speaking with Mr Whitmore Mr Ngatai did not return immediately to his unit but went to complete the balance of lock down training in which he had been participating. Mr Ngatai returned to his unit at about 2.30 p.m. In an interview on 10 January 2002 Mr Ngatai said that he had returned “fuming” as he was angry about the complaints made by the inmates. Mr Ngatai told another Corrective Services Officer, Peter Hughey, and a Counsellor, Sally Anne Upton, who were both present in the officer’s station at the unit, that he was angry about the complaints. When Mr Ngatai saw one of the inmates who made the complaint walk past the officers’ station, colloquially known as the fish bowl, Mr Ngatai called him by the derogatory term of “dog”. According to Mr Hughey and Ms Upton, Mr Ngatai then escalated his verbal abuse. He went out on the floor where all the inmates were and continued to rant. The language used by Mr Ngatai was foul and offensive. Not surprisingly one of the inmates took offence at Mr Ngatai’s vile abuse and took his shirt off and offered to sort the matter out in the yard. In reply, Mr Ngatai called the three inmates who had made the allegations into the airlock to have the matter sorted out there. While in the airlock, Miss Upton said the abusive language from Mr Ngatai continued. She said Mr Ngatai was standing in close proximity to one of the inmates and was concerned that the verbal altercation would escalate into physical violence. Meanwhile a number of inmates had gathered around the fishbowl and door to the unit and were shouting for the incident to end. Some were banging on the glass and door. Mr Hughey was concerned for the safety of Mr Ngatai and Miss Upton and was also concerned that a riot might ensue. He called for back up. When the back up did not arrive within a short time, a critical emergency response team (CERT) was called. When officers arrived in response to the CERT call, the incident was quickly defused. The incident took only a few minutes in total and did not result in any physical violence. The next day Mr Ngatai was suspended from duty with pay pending an investigation into the incident. Richard Laws, Manager, Investigations, conducted the investigation. Mr Laws interviewed Mr Ngatai, Mr Hughey, Miss Upton, two of the inmates involved as well as Mr Murray and Mr McGregor. As a result of his investigation Mr Laws recommended that Mr Ngatai appear before a disciplinary hearing in relation to an alleged breach of the Code of Conduct, that is, “that staff be courteous and fair in their dealings with all prisoners, inmates, detainees, colleagues and members of the public, irrespective of race, religion, gender, disability, sexual orientation or any other factors.”. A disciplinary hearing was conducted by Kevin White, General Manager of the Arthur Gorrie Correctional Centre on 1 February 2002. Mr Ngatai was able to have a support person present at the hearing as an observer. He was given access to all relevant material and had the opportunity to comment on the reports. Mr Ngatai was also able to call witnesses and to supply any written material prior to the hearing. After considering all that had been put before him Mr White decided to dismiss Mr Ngatai from the employment of Australasian Correctional Management Pty Ltd (ACM), the operator of the Arthur Gorrie Correctional Centre. -- 1 of 5 -- 452 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 16 August, 2002 Mr Ngatai was dismissed for gross misconduct for breaching the Code of Conduct in the following ways: “ • Unprofessional conduct in that you made a threat consistent with intent to be partial in the exercise of your official functions in direct response to a complaint made against you by prisoners. • Malicious harassment of prisoners in that you repeatedly shouted at the inmates calling them ‘fucking dogs’. • Any other act which by its nature and impact severely limits the employee’s ability to perform the essential elements of the job. It is fundamental that persons are permitted to complain and that they do not suffer and are not seen to suffer any vilification for doing so. • Any action which may bring the activities of ACM into disrepute.”. Despite the dismissal being for reasons of gross misconduct, Mr Ngatai was paid four weeks’ pay in lieu of notice. The letter of dismissal also advised Mr Ngatai that he had the right to appeal the decision to dismiss him to the Managing Director of ACM within ten days of receiving the letter. Mr Ngatai elected to appeal the decision. A panel of three senior managers from ACM, independent of the case, was constituted to hear the appeal. The panel examined all of the material, conducted some further interviews in the presence of Mr Ngatai and his support person and allowed Mr Ngatai the opportunity to present his case. The decision unanimously upheld the decision made by Mr White. The Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (ALHMWU), which represented Mr Ngatai in the proceedings before the Commission, did not take any issue with the procedural aspects of the dismissal. Bearing this in mind and on the basis of the information provided to me about the investigation and the two hearings, I am satisfied that Mr Ngatai was afforded procedural fairness. The Union argued that the dismissal was harsh, unjust and unreasonable and in support of that argument raised the following matters: • Mr Ngatai was suffering from stress related to the death in custody at the time of the incident on 8 January 2002. The stress contributed to Mr Ngatai’s actions that day. • Management of the Arthur Gorrie Correctional Centre contributed to Mr Ngatai’s actions on 8 January 2002 by returning Mr Ngatai to the unit for the balance of his shift and not moving the inmates who made the allegations. Secondly, Mr Whitmore’s advice to talk to the inmates about their whinges also contributed to the incident. • There was evidence that inmates were intending to conspire against Mr Ngatai as they were upset about the death in custody and blamed Mr Ngatai for that. • Mr Ngatai was a long serving officer with a good record. He ought not to be dismissed, essentially for swearing, when there were no previous warnings. The incident did not lead to violence. Mr Ngatai had not received adequate training in the management of his anger nor in effective communication techniques with inmates. • The punishment was too severe given the nature of the incident and the penalty was inconsistent with penalties imposed for graver incidents. The respondent denied each of these contentions. In determining whether the decision to dismiss Mr Ngatai was harsh, unjust or unreasonable I intend to address each of the matters raised by the Union as well as other relevant considerations. 1. Stress Mr Ngatai argued that he was suffering stress as a result of the death in custody of an inmate from his unit. The death in custody is being separately investigated and it is not my role to deal with that matter here. After a death in custody occurs, officers are debriefed and are offered counselling. Mr Ngatai participated in the debrief but did not avail himself of the counselling until after the incident on 8 January 2002. Evidence from the counsellor was not provided. Mr Ngatai consulted his medical practitioner on 10 January 2002, two days after the incident and the day after his suspension. Tendered to the Commission was a letter to the Union advocate from the medical practitioner summarising Mr Ngatai’s consultations from January 2002. The respondent did not object to the letter being tendered and did not require the author to attend for cross-examination. The summary of the consultation on 10 January 2002 shows that Mr Ngatai was upset by the death in custody and had been sleeping poorly since that time. However, a number of other stressors were identified. These included work and family issues. Mr Ngatai was referred to and subsequently consulted a psychologist. The letter from the medical practitioner is the only “evidence” of Mr Ngatai’s stress arising from the death in custody. As mentioned, the doctor was not subjected to cross-examination nor was evidence called from the counsellor or psychologist. At best, the “evidence” shows that Mr Ngatai was upset about the death in custody. There is insufficient material before me to be reasonably satisfied that Mr Ngatai was suffering from stress as a result of the death in custody and consequently was so impaired as to trigger his behaviour on 8 January 2002. It is also important to note that medical evidence of stress was not put before the disciplinary hearing held before Mr White. 2. Contributions by Management Two events are said by the Union to have contributed to Mr Ngatai’s outburst on 8 January 2002. These are: (i) the decision to return Mr Ngatai to his unit after being informed of the allegations against him, and; (ii) Mr Whitmore’s advice to talk to inmates. Mr Murray’s evidence was that Mr Ngatai took the news of his relocation to another unit with good grace. Mr Ngatai rejected Mr Murray’s evidence claiming that he had said “that’s crap” when told of the move. In addition he gave evidence of his discontent with the proposition that officers should be moved pending investigations into matters concerning them rather than inmates being moved. It is more likely in my view that Mr Ngatai said “that’s crap” when told of the allegations made against him. In his evidence Mr Ngatai denied making the comments at the time the inmates alleged. I am satisfied that Mr Ngatai did not express any concern to Mr Murray about being returned to his unit -- 2 of 5 -- 16 August, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 453 after being informed of the allegations. I am satisfied that Mr Ngatai expressed displeasure about the allegations having been made and the nature of them. I am further satisfied that during the remainder of the lock down training Mr Ngatai stewed on the fact that inmates had made allegations against him, in his eyes, unfairly, and hence that is the reason he was fuming when he eventually returned to his unit. Miss Upton and Mr Hughey confirmed Mr Ngatai was angry that complaints had been made about him. Further, had Mr Ngatai objected to the move, then given his reasonable working relationship with Mr Murray, I consider Mr Ngatai would have told him of this. It was also Mr Murray’s evidence, which I accept, that in the event Mr Ngatai objected to the move occurring on 9 January 2002, he would not have allowed Mr Ngatai to return to his usual unit for the completion of his shift. It was Mr Ngatai’s view that he should have been moved immediately to another unit or, better still, that the inmates making the complaints should be removed from the unit. This would allow the officer to continue to work as usual while ensuring the officer against whom the complaint was made does not treat the inmate(s) concerned unfairly. Evidence was heard from both witnesses called by the applicant and witnesses called by the respondent about the usual practice when a complaint is made by an inmate about an officer. On the evidence before me it seems that the usual practice in such circumstances is to return the officer to his or her unit for the balance of the shift and then move the officer to another unit at the commencement of their next shift pending the outcome of the investigation. This is done in order to not reward the complaining inmate with an immediate victory over an officer’s removal. There are exceptions to this policy, including where an officer expresses concern about a return to the unit or where the allegations are considered to be so serious that a return, even for the balance of the shift, would not be in the best interests of all concerned. In this case Mr Ngatai did not express any concern to Mr Murray at their meeting about returning to his unit for a short time and then moving to another unit for the start of his next shift. Neither did Mr Ngatai return to express his anger to Mr Murray after he had stewed on the complaints. Had that occurred it is unlikely Mr Murray would have sent Mr Ngatai back to his unit. This was also not a case where the allegations were considered to be in the category where it would be unsound to return Mr Ngatai to his unit. The second contributing factor on that part of management was said to be Mr Whitmore’s advice to Mr Ngatai to discuss the complaint with inmates. It was Mr Whitmore’s evidence, which I accept, that he was unaware that official complaints had been made about Mr Ngatai and he was offering advice as to how to deal with informal complaints. Such advice was consistent with the practice usually engaged in by Mr Ngatai and himself. The other aspect to the Union’s contention was that Mr Whitmore had given Mr Ngatai a piece of paper on which to record inmate complaints. I think this was unlikely as the meeting between Mr Whitmore and Mr Ngatai was a chance encounter and it was not usual practice for Corrective Services Officers to be given cell record sheets and asked to record inmate complaints. In the circumstances I am not satisfied that Mr Whitmore can be held accountable for either Mr Ngatai’s conduct or the incident. 3. Conspiracy Tammy Jacobsen, a Registered Nurse employed full-time at the Arthur Gorrie Correctional Centre, gave evidence that, after the death in custody but before the incident of 8 January 2002, one inmate told her that he blamed Mr Ngatai for the death of the inmate in custody. She said the inmate told her that inmates planned to provoke Mr Ngatai so that he would react in a manner that would cause him to be dismissed or at least removed from the unit. Ms Jacobsen also gave evidence this inmate said that inmates would cause CERTs to be called all the time and that Mr Ngatai would be blamed for this and inmates would refuse to follow Mr Ngatai’s directions. Ms Jacobsen gave evidence that two other inmates also told her of plans to “go after” Mr Ngatai. Ms Jacobsen said that she told Jenny Matulaitis, Acting Correctional Manager, that threats had been made against Mr Ngatai. She was not asked in cross- examination whether she had provided any detail of the threats to Ms Matulaitis. According to Ms Jacobsen, Ms Matulaitis said that Mr Ngatai would be removed from his unit while the situation settled down and that other actions to manage the situation might also be put in train. Because Mr Ngatai reacted in the manner described earlier to the complaints lodged by inmates, the Union contended that Ms Jacobsen’s information was correct and that inmates had conspired against Mr Ngatai in order to have him removed from the unit. At first blush the Union’s argument has its attractions. Mr Ngatai behaved in a manner on 8 January 2002 that ultimately caused his dismissal. However, it was not the case, as Ms Jacobsen reported, that Mr Ngatai reacted because inmates were “in Mr Ngatai’s face all day every day”. As Mr Bryce said in his closing submissions, “the inmates would have to be greater strategists than Rommel” to believe that their complaint to the police would result in a violently abusive outburst by Mr Ngatai. They would have to believe that the police would report it to senior management who would relay the information to Mr Ngatai. The inmates would have to also believe, for their plan to succeed, that Mr Ngatai would become so angry that he would be provoked into an abusive response. Such a scenario is not impossible but is unlikely given that all links in the chain reaction would need to occur for their strategy to succeed. Ms Matulaitis was not called by the respondent to give evidence in response to Ms Jacobsen’s statement. I do not consider that this is a case where the rule in Jones v Dunkel (1959) 101 CLR 298 should apply and an adverse inference drawn. Mr Murray’s evidence was that had Ms Matulaitis received such information it would have been reported. To his knowledge it was not. Moreover, it was not recorded in the statement of the Intelligence Officer, Mr McGregor. While Mr McGregor provided a statement to the Commission he was not required for cross-examination. It could be reasonably thought that such information, if received, would have been appropriately handled. For these reasons I am not prepared to accept that the inmates conspired to provoke a reaction from Mr Ngatai in order to have him removed from the unit or dismissed from his employment. 4. Service and Training The Union contended that Mr Ngatai should not be dismissed for conduct that essentially amounted to swearing at inmates. They pointed to Mr Ngatai’s seven years of service with ACM and submitted that his service was largely unblemished. In addition, the Union argued that Mr Ngatai had not received training in managing his anger and refuted the respondent’s contention that Mr Ngatai had been trained and received refresher training in communication techniques. Mr Ngatai has not worked exclusively at the Arthur Gorrie Correctional Centre but has also worked at detention centres. While stationed at the Curtin detention centre Mr Ngatai received a warning for acting in an inappropriate manner towards a member of the public who was operating a canteen. Mr Ngatai was to undertake training in interpersonal and supervision skills but according to his evidence, lack of funds precluded him from doing this. Mr White took the warning into account in deciding the disciplinary penalty to apply to Mr Ngatai. -- 3 of 5 -- 454 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 16 August, 2002 In 2001 Mr Ngatai verbally abused another officer at the Arthur Gorrie centre. It is alleged that Mr Ngatai used the same foul swear words to that officer as he used to the inmates on 8 January 2002. As the matter was resolved between Mr Ngatai and the other officer, disciplinary action did not ensue against Mr Ngatai. Mr White took into account in deciding the disciplinary penalty against Mr Ngatai the fact that the language used on 8 January 2002 was consistent with that used in the earlier incident. Mr Ngatai had denied using the words “cunt” or “cunting” on 8 January 2002 saying he did not use that language. The word “cunt” was reported to have been used by Mr Ngatai in the earlier incident. Mr Ngatai received six weeks’ induction training on commencing employment. Although he could not recall receiving training on communication techniques, I am prepared to accept that such training was provided. The Union was prepared to concede this point. The Union disagreed with Mr White’s evidence that Mr Ngatai had received refresher training on this subject. It is the case that no specific training on communication techniques was included in the units Mr Ngatai had undertaken. Mr White’s evidence seems reasonable that the topic would have been addressed in several of the units. One of the arguments of the Union was that Mr Ngatai had not been trained in managing his anger. Had such training been provided then the incident of 8 January 2002 may not have occurred. Mr Ngatai has apologised to his colleagues for his outburst. It was said that it is not common for Mr Ngatai to behave in this manner. Had Mr Ngatai abused the inmates from his location in the fishbowl, it is unlikely that any disciplinary process would have occurred. The same might be true had Mr Ngatai continued his abuse on to the floor and concluded the argument there. The gravity of the incident arose by his going on to the floor, continuing the foul abuse and then inviting the inmates into the airlock to sort the matter out. I reject Mr Ngatai’s evidence that he intended to simply continue the discussion there, away from the other inmates. Although it is true that only verbal abuse was engaged in, on the evidence of Mr Hughey and Miss Upton, the matter could have easily escalated to a much more serious situation. It is not as the Union contended that because no riot eventuated or there was no physical violence the matter should be construed as not being serious. It is also not the case that Mr Ngatai was dismissed simply for swearing at inmates. Prisons are robust places and the language used by officers and inmates alike can also be robust. I accept that the inmates in the unit concerned are difficult. They are protection prisoners, are considered to be predatory and are therefore kept in isolation from other inmates. Mr Ngatai was selected to work in the unit because it was considered he had the necessary skills and experience to deal with such inmates. His actions on 8 January 2002 were contrary to his training, were provocative, abusive, and intimidatory and placed a unit in a prison on the brink of major upset. The Commission cannot proffer an opinion about whether anger management training would have prevented Mr Ngatai from commencing or continuing his foul and abusive outburst. I do not think however that the cause of the incident can be laid at the feet of ACM for the reason that it did not provide the training. 5. Severity and Consistency of Punishment In his evidence Mr Ngatai acknowledged that he had acted inappropriately and that his actions were contrary to his training. He admitted to being aggressive and to using language such as “fucking dogs”. He would not accept that he placed himself or anyone else in jeopardy by his actions, that he had provoked a situation that was dangerous or that the situation could have led to physical violence. Mr Ngatai conceded that he deserved some disciplinary penalty but said that dismissal was too severe in the circumstances. Evidence was called from Terrence Hodges, the head Union delegate, about disciplinary penalties that had been imposed on other officers for seemingly lesser or equivalent incidents. The Commission does not have before it all of the relevant information about those cases on which to make a judgement on the consistency of disciplinary penalties. The most I can do is to decide whether Mr Ngatai’s dismissal in the circumstances of 8 January 2002 was harsh, unjust or unreasonable. In my view dismissal was warranted. In terms of s. 77 of the Industrial Relations Act 1999 Mr Ngatai was notified of the reason for his dismissal. The reasons related to his conduct and the operational requirements of the business. Mr Ngatai was given the opportunity to defend against the allegations before the decision to dismiss was made. Mr Ngatai was afforded procedural fairness. Despite Mr Ngatai not accepting that his actions put himself and others at risk, I am firmly of the view that he did precisely that. The evidence from Mr Hughey and Miss Upton was that they were concerned for Mr Ngatai’s safety and their own at the time. The evidence also supports a conclusion that Mr Ngatai provoked the incident, it was serious and potentially dangerous. Mr Ngatai was reeling off abuse and being intimidatory in the airlock. Inmates were banging on the door and the glass of the fishbowl. The situation was volatile but fortunately assistance arrived before it escalated into physical violence or potentially a riot. In the circumstances I am satisfied Mr Ngatai breached the code of conduct as determined by Mr White. While I consider the earlier warning and the incident of 2001 ought not to have been taken into account by Mr White in determining the outcome of the disciplinary hearing. I am satisfied that given the nature of the incident, dismissal was the appropriate penalty. Mr Ngatai’s actions can only be described as extremely serious. The Commission acknowledges that Mr Ngatai’s fellow officers support his reinstatement. From the evidence before me it seems that his colleagues may not be in possession of all the facts and circumstances surrounding this incident. Blame for the dismissal seems to be unfairly attributed to Mr Hughey who called for assistance. He stands accused of being inexperienced and calling for a CERT when none was required thus prompting the investigation that led to Mr Ngatai’s dismissal. The evidence quite plainly is that Mr Hughey did not initially call a CERT but only for backup as he was concerned that by calling a CERT, Mr Ngatai could get into trouble. Only when assistance did not arrive in a short time was a CERT called. Mr Hughey said he did not call it but it was called by movement control. Ms Wosgian who was stationed at movement control claimed Mr Hughey called it. In my view it does not matter who called the CERT. The fact was the situation was dangerous and assistance was required from other officers to defuse it. Mr Hughey may not have had much experience in a correctional centre but his significant experience in detention centres, which are often places of tension, led him to believe that the situation was dangerous and assistance was necessary. Having considered all of the evidence I believe his assessment of the situation was correct. While I can appreciate the solidarity of Mr Ngatai’s colleagues, by his own admission he acted contrary to his training. Prisons can be volatile places. Arthur Gorrie is a high security prison. It experiences a transient population. Given the seriousness of Mr Ngatai’s actions, the fact that he put himself and others at risk in what is in any event a volatile place, I think that dismissal was warranted. To contemplate overturning the respondent’s decision and reinstating Mr Ngatai, particularly after the concessions he made in his evidence, would have the effect of disregarding the safety of other officers. The Commission is not prepared to take that step when in the first instance Mr Ngatai’s own intimidatory actions provoked a serious situation. The application is dismissed. -- 4 of 5 -- 16 August, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 455 Order accordingly. G.K. FISHER, Commissioner. Appearances: Released: 5 August 2002 Mr K. Crank of the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees for the applicant. Mr R.M. Bryce (Roger Bryce & Assoc) and with him Mr J. Peter for the respondent. -- 5 of 5 --