Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Gerald Byrne) and Corrective Services NSW [2014] NSWIRComm 1029

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Gerald Byrne) and Corrective Services NSW [2014] NSWIRComm 1029

The Commission found that inmate D did not spit on the Applicant, that the inmate was handcuffed and compliant, and that the Applicant's use of force, including punching the inmate and causing a laceration, was unnecessary and unreasonable. It also found that the Applicant failed to follow the Use of Force Policy by not ensuring use of a hand held video camera and failed to comply with reporting requirements by omitting important details and making inaccurate statements. In light of the sustained allegations, the seriousness of the misconduct, the public interest and standards required of Corrective Services officers, dismissal was not harsh, unjust or unreasonable.

Jurisdiction
Australia
Judgment Date
05 December 2014
Procedural Posture
Unfair Dismissal / Principal Judgment After Hearing Before the Industrial Relations Commission of New South Wales
Outcome
Claim dismissed
Legal Topics
['unfair Dismissal' 'correctional Officer Misconduct' 'use of Force Against Inmate' 'failure to Video Record Use of Force' 'accuracy of Incident Report' 'harsh, Unjust or Unreasonable Dismissal']
['industrial Relations' 'employment Law' 'public Sector Disciplinary Law'] ['unfair Dismissal' 'correctional Officer Misconduct' 'use of Force Against Inmate' 'failure to Video Record Use of Force' 'accuracy of Incident Report' 'harsh, Unjust or Unreasonable Dismissal']

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Procedural Posture

Unfair Dismissal / Principal Judgment After Hearing Before the Industrial Relations Commission of New South Wales

Legal Issues

  1. 1 ['Was the use of force necessary or reasonable?' 'Did the Applicant fail to follow the Use of Force Policy with respect to the use of a hand held video camera to record the incident on 8 January 2013?' 'Was the Use of Force Incident Report completed accurately?']

Ratio Decidendi

The Commission found that inmate D did not spit on the Applicant, that the inmate was handcuffed and compliant, and that the Applicant's use of force, including punching the inmate and causing a laceration, was unnecessary and unreasonable. It also found that the Applicant failed to follow the Use of Force Policy by not ensuring use of a hand held video camera and failed to comply with reporting requirements by omitting important details and making inaccurate statements. In light of the sustained allegations, the seriousness of the misconduct, the public interest and standards required of Corrective Services officers, dismissal was not harsh, unjust or unreasonable.

Court Disposition

Claim dismissed

Orders

  • ['Matter IRC 990 of 2013 is hereby concluded by dismissal of the application.']