The Applicant's Evidence
18Mr Donald Harry Bethel provided a statement in the proceedings in which he advised that he was appointed as a Correctional Officer (CO) in 1990, was promoted to First Class Correctional Officer after three years and finally promoted to Senior Correctional Officer (SCO) in about 2003 - a rank which he held until his dismissal on 3 May 2012.
19In reporting on his expertise and experiences, the Applicant provided details of the various Centres at which he had worked and his achievements at each of those Centres and the letters of commendation that he had received.
20Mr Bethel also reported that he had been the PSA delegate from about 1991 until 2009 during which he had been involved in a number of conflicts with senior management in the conduct of his union duties. He stated, nevertheless, that he had acted professionally at all times and no complaints, to his knowledge, had been lodged as a result of his conduct as a delegate.
21Mr Bethel said that, at approximately 10.50 am on 4 December 2010, while he was working in the cells at Penrith Court, he saw CO Jensen approach Assistant Superintendent (AS) Morgan and inform her that the inmate in cell 5 had taken his t-shirt off and was threatening to hang himself with it. Mr Bethel said AS Morgan instructed him and Officers English and Bennett to attend the cell location immediately. He said that he was aware that the said inmate had earlier that day used the "knock-up" button on two occasions to complain that he wanted his medication as he was on a methadone program. The inmate had been advised that, once the court sittings were finished, he would be escorted to the clinic where a nurse, employed by Justice Health, would dispense his medication.
22Mr Bethel said he attended the holding cells with AS Morgan. They remained outside the cell. At that stage, the area was being video recorded by the CCTV cameras which did not record audio. He said he gave clear instructions to the inmate, BS, of what he was required to do. Nevertheless, BS argued with AS Morgan, shouting, screaming obscenities and abusing her asking for his methadone and medication. Mr Bethel said he gave BS a direct order to remove himself to the back of the cell, kneel down and face the wall, place his hands on top of his head and cross his legs over. BS refused to comply with the order and made a statement that the first officer to enter his cell would get a smack "in the fucking mouth". For some unexplained reason that part of the incident had not been recorded with the hand held camera.
23As it became obvious that use of force may be necessary, one of the Officers was despatched, in accordance with standard procedure, to obtain a video camera to record the incident. Mr Bethel, as a result of the threat of assault made by BS, asked AS Morgan to arrange for someone to obtain a set of restraints (handcuffs) so that BS may be restrained if he attempted to carry out his threat and to guard against BS throwing punches. At that point in time the cell door was still closed and the inmate was alone in the cell.
24Mr Bethel said that once the restraints were on hand, he obtained permission from AS Morgan to enter the cell but before doing so, he told BS to "move to the back of the cell". BS refused to do so. Mr Bethel said he informed BS that if he refused to comply and move to the back of the cell voluntarily, then the Officer would use his shield to move him. At that point, the video camera was turned on by the Officer operating it. BS complied by moving to the back of the cell but refused to comply with the instruction to kneel down. BS has had reconstruction surgery on his left knee so any pressure on his knees hurts him. Mr Bethel said that once he had possession of the restraints, he obtained permission from AS Morgan to enter the cell. Several Officers, including Mr Bethel, then entered the cell. SCO Harper entered the cell carrying a Perspex shield to be used, if necessary, to push the inmate back into the wall of the cell. The other Officers began to remove all the contents of the cell in case the inmate used any of them to harm himself. Mr Bethel said he got behind BS and instructed him to kneel down. Once again he refused to comply. He recalled the following exchange with the inmate:
Bethel: You'll kneel to the ground or I'll use force.
BS: I can't. I have something wrong with my knee.
Bethel: No problems. Bend your knees forward, place your hands up, high up on the cell wall.
BS: There's no need to handcuff me.
25Mr Bethel explained that the purpose of the handcuffs was twofold - firstly, they were to restrict BS in his movements in order to prevent self-harm and, secondly, they were to prevent injury to himself as BS had threatened to punch an officer in the mouth if they entered his cell.
26Mr Bethel described the difficulty he experienced in applying the handcuffs to BS's wrists. He said BS ignored his instructions to stop moving, to "stop resisting". BS moved his hands sliding them down the wall of the cell until, eventually, he was virtually attempting to apply the handcuffs while BS was on the floor because he had lowered himself that far. BS kept pulling his hands away because he did not want to be handcuffed.
27Mr Bethel stated that, once he applied the handcuffs, he told BS to stand up but BS said he could not stand up and did not want to stand up. BS kept repeating that he wanted his medication and his methadone. Mr Bethel said that once he had BS in a prone position, he told him that he wanted him to go and sit over on the bench. As he refused to comply, he basically pulled BS to his feet and again instructed him to go and sit on the bench. For reasons unknown to Mr Bethel, BS moved forward causing the Applicant to take control of the restraints, turn BS around and push him back towards the bench. The idea was to have him positioned at the furthest point away from the door so the Officers could exit the cell.
28Once BS was seated on the bench, the Applicant commenced to have a conversation with him during which BS made several requests, including that he wanted the handcuffs removed because they were too tight around his wrists. The Applicant contended that BS moved the handcuffs up the wrists so that they were tight. Mr Bethel said he bent forward to have a look at the back of the cuffs to confirm that there was a gap between the wrists and the handcuffs in an effort to ensure that they were not too tight. He had advised BS at the time to "Stop carrying on like an idiot. If you calm down, the handcuffs will be removed". He said that, as he bent forward, BS made a movement causing the Applicant to pull his head back.
29Mr Bethel admitted that he did get close to BS when he bent forward to examine the handcuffs but contended that there was no contact all with BS at that time or, indeed, at any other time. He contended that no part of his body came into account with any part of BS' head nor did he head-butt him at any time.
30Mr Bethel stated that he exited the cell as soon as BS settled down. He contended that, at all times, he was aware of the presence of the CCTV camera being operative and the fact that a video camera was being operated by one of the officers to record everything.
31In accordance with the usual practice, AS Morgan asked him to check on BS after about 10 minutes to determine whether he had settled down enough to allow for the removal of his handcuffs. Mr Bethel said BS was sitting on the bench when he approached the cell. He opened the cell door, entered and removed the handcuffs. He said that, also in accordance with normal practice where force has been used, he instructed CO Jensen, the clinic officer on that shift, and a male officer to take BS up to the clinic for assessment by the Justice Health nurse. The Applicant said that BS had apologised to him for his behaviour.
32Mr Bethel annexed to his statement a copy of Incident Report he had prepared on the day. It indicated that there was no injury caused to BS. It stated, in relation to the question "Most serious incident that preceded the use of force?" the Applicant had entered the words "self harm". There was no mention of a threat to assault Officers. His responses were echoed in the report submitted by AS Morgan which was also annexed to his statement.
33Mr Bethel pointed out that he had not been advised by Justice Health that BS had complained to their nurse that he had been assaulted by Bethel during the incident.
34AS Paul Juhaz viewed the video recording of the incident and concluded that, in his opinion, the Applicant had head-butted BS and reported the matter to the Police who charged him with common assault on 21 January 2011.
35The Presiding Magistrate at the Downing Centre Local Court, on 3 August 2011, found the charge of common assault proven and placed the Applicant on a 12 month good behaviour bond pursuant to section 10 (1)(b) of the Crimes (Sentencing Procedure) Act 1999.
36Judge Knox SC dismissed the Applicant's conviction on appeal to the District Court on 3 February 2012. However, his Honour set aside the sentence and, instead, dismissed the proceedings pursuant to section 10 (1)(a) of the Crimes Act - in other words, no conviction was entered against the Applicant.
37The Applicant was suspended from duty as from 21 January 2011 and did not return to work prior to his dismissal on 3 May 2012. During that period he had received his base pay which he said he supplemented by drawing on his accrued annual leave and long service leave which he was allowed to do following a dispute notification lodged by his union with the Commission.
38The Applicant maintained from the outset that he did not assault BS as alleged or at all despite the findings of the Local and District Courts.
39The Applicant stated that, on 28 February 2012, he received correspondence dated 23 February 2012 from the Respondent providing him with an opportunity to make submissions on his own behalf prior to a final decision being made on the appropriate disciplinary action to be taken following the conclusion of the criminal proceedings and the appeal. He was advised that the Respondent intended to take into account, in addition to his submission, the conviction in relation to BS, the objectives of the Public Sector Employment and Management Act 2002 and the following matters:
a. a previous finding of guilt in relation to an assault upon another officer on 5 January 1993 for which he received the equivalent of a s.10 on 27 January 1993;
b. a letter of warning issued to him on 12 May 1993 from the Deputy Commissioner regarding that matter;
c. several complaints received from staff and inmates in November 1995 resulting in his removal from Parramatta Correctional Centre;
d. a letter of warning issued to him on 2 September 1999 by the Senior Assistant Commissioner Inmate and Custodial Services following regarding his inappropriate conduct over an incident during which he conducted an unauthorised search on an inmate;
e. use of force against an inmate for which he received counselling on 14 April 2003;
f. a guilty finding for driving without a licence on 2 April 2004; and
g. a guilty finding in relation to driving under the influence (mid range PCA) on 2 April 2004.
40A response was made to Deputy Commissioner Ian McLean on his behalf by his Solicitors dated 12 March 2012. That response highlighted all the applicant's achievements which had distinguished him throughout his career with the Respondent. It was pointed out that, despite the findings of the Local Court and the District Court, Mr Bethel maintained his innocence. It was pointed out that the Deputy Commissioner was not bound to accept their findings and there was no authority in support of the proposition that he was bound to accept the findings made by those courts. Clause 13 of Appendix 9-3 of the Procedural Guidelines for Managing Conduct and Performance ('the Guidelines") supports that submission. It does not prevent the decision maker from arriving at a decision that an officer is guilty of misconduct despite a "not guilty" finding by the courts. It follows, therefore, that a decision-maker is not prevented from reviewing the facts relied on by the criminal courts to find a "guilty" decision, particularly where a number of reasons exist that would warrant reviewing the facts relied upon by a court before determining, on the civil onus. whether Mr Bethel had in fact head-butted BS.
41The Applicant attended an interview with the Deputy Commissioner in or about early April 2012 at which Stewart Little from the PSA was in attendance and at which the Applicant made an oral submission as to why he should not be dismissed. Nevertheless, he was dismissed from employment by letter from the Deputy Commissioner dated on or about 3 May 2012 without reasons for such decision being provided.
42Mr Bethel denied that he had been convicted of a number of offences in the past. He acknowledged that he had been charged with assault on a fellow employee who took exception to the fact that he was dating that employee's ex-wife. Nevertheless, that charge had been dismissed without any conviction being recorded against him on 5 January 1993. He contended that he was not aware of the letter of warning allegedly issued to him on 12 May 1993 in relation to that incident until he examined his personnel file for the purposes of the present proceedings. He denied that he had been suspended while that matter was proceeding before the Local Court.
43Mr Bethel argued that the action taken by the Respondent in dismissing him from employment was inconsistent with its treatment of other correctional officers in similar circumstances. The Applicant provided the Commission with 18 examples of instances in which correctional officers had been charged with assault on either an inmate, or Police, had pleaded guilty, had not been suspended pending the hearing of their matter or had not been dismissed upon being convicted. The examples included instances where, he contended, correctional officers had engaged in misconduct but not charged by the police and had not been dismissed.
44In conclusion, Mr Bethel pointed out that he was aged 53 years and worked for the last 22 years as a Correctional Officer during which time he has been provoked and assaulted by inmates in many instances during the execution of his duties. He pointed out that he has never been charged with using excessive force in the restraint of inmates. He added that, given his age, he would find it extremely difficult to obtain alternative employment at the same remuneration level given his lack of skills or qualifications. Finally, despite the stressful conditions under which he performed his duties, the Applicant said he had enjoyed his job and always attempted to perform his duties to the best of his ability and in accordance with the Respondent's policies and procedures.
45The Applicant is seeking reinstatement of his previous position as Senior Correctional Officer.