Henri Eparaima v Industrial Relations Secretary, on behalf of the Department of Communities and Justice

Industrial Relations Commission (NSW)|2019-12-19|Before: Health J

Judgment

Mr Henri Eparaima (the Appellant) was 53 years old and was working as a Senior Correctional Officer (SCO) in the Security Emergency Response Team at the Metropolitan Reception and Remand Centre (MRRC) employed with Correctional Services New South Wales (CSNSW) when his employment was terminated on 12 August 2019. The Appellant's employment was terminated as a result of an assault upon a detainee in custody on 22 October 2017, which resulted in a criminal conviction.
Pursuant to section 50 of the Government Sector Employment Act 2013 (NSW) the Industrial Relations Secretary (the Respondent) is taken to be the employer of the Appellant in these proceedings.
The Appellant has appealed the decision to terminate his employment pursuant to section 98 of the Industrial Relations Act 1996 (NSW) (the Act).
I have decided for the reasons that follow that the Appellant's appeal from the decision to terminate his employment should be dismissed.

Background

The Appellant commenced his employment with the Respondent in 1993 working for NSW Juvenile Justice where he attained the position of Senior Youth Worker.
In 1995, the Appellant commenced employment with CSNSW as a Correctional Officer, initially posted to the Long Bay Correctional Centre before being transferred in 1999 to the MRRC where he worked until his employment was terminated by the Respondent.

The Respondent's evidence and submissions

The Respondent relied upon the written material prepared for the Conciliation Conference of the matter (the Respondent's Conciliation Bundle): Exhibit R1. The Respondent's Conciliation Bundle consists of written submissions with respect to the matter (p 2-5) and 19 annexures including; 1. CCTV footage of assault on the detainee - 22 October 2017. 2. Misconduct report by Mr Eparaima - 22 October 2017. 3. Justice Health's Medical records regarding the detainee's injuries - 22 October 2017. 4. NSW police notebook statement by SCO Eparaima - 23 October 2017. 5. Correspondence relating to the suspension of SCO Eparaima with pay from 1 December 2017 to 16 February 2018. 6. CSNSW Investigation report - 22 May 2018. 7. Documents relating to the Local Court of NSW hearing of the common assault charge against the Appellant, including court transcript from 3 December 2018. 8. Documents relating to the District Court appeal against the Appellant's sentence in the Local Court of NSW, including judgement outcome and transcript dated 20 February 2018. 9. Letter to the Appellant re finding of misconduct - 28 May 2019. 10. Transcript of disciplinary interview - 4 July 2019. 11. Letter to the Appellant providing him with an opportunity to resign dated 31 July 2019. 12. Letter to the Appellant terminating his employment dated 12 August 2019. 13. Documents relating to prior misconduct finding relating to the Appellant regarding incidents in October 2012 and January 2017.
In addition, the Respondent relied upon the following witnesses evidence: 1. Affidavit of Mr David Aitken dated 1 October 2019 (First Aitken Affidavit): Exhibit R2. Mr Aitken is a Legal Officer in the Professional Standards branch of CSNSW. In the First Aitken Affidavit, Mr Aitken gives evidence that he had been unable to contact the detainee who was assaulted on 22 October 2017 and annexes a copy of the Appellant's security license. 2. Police Statement of First Class Correctional Officer (FCCO) Desbi Takis dated 11 April 2018 (Takis Statement): Exhibit R3. FCCO Takis transported the detainee from Surry Hills to the MRRC where the assault occurred. He gives evidence that force was required to get the detainee on to the transport and that the detainee did not respond to being asked his name by the Appellant and he heard the detainee verbally abuse the Appellant and FCCO Valliant as he was being escorted into the cell. 3. Police Statement of Assistant Superintendent (AS) Danny Chandramun dated 31 January 2018 (Chandramun Statement): Exhibit R4. AS Chandramun gives evidence in the Chandramun Statement that he saw the Appellant hitting the detainee in the face, though he does not remember if it was with an open hand or not or if it was "once or twice". He also gives evidence that he removed the Appellant from the yard with FCCO Valliant and that the detainee was "just yelling and swearing" at the Appellant; 4. Police Statement of FCCO Ross Valliant dated 6 April 2018 (Valliant Statement): Exhibit R5. FCCO Valliant was working with the Appellant and witnessed the assault on 22 October 2020. His evidence is considered in greater detail below; 5. Police Statement of Casual Correctional Officer (CCO) Hardeep Tamber dated 6 April 2018 (Tamber Statement): Exhibit R6. CCO Tamber was involved in the transport of the detainee from Surry Hills to the MRRC on the day of the incident. He gives evidence that force was required to place the detainee into the transport; at the MRRC, he heard the Appellant ask the detainee why he had spat on his face and he heard the detainee being verbally abusive towards the Appellant. He says that at one point he saw the detainee thrown from side to side and the Appellant's arms swinging from side to side but he could not see exactly what was going on due the Appellant being in his line of view; 6. Police Statement of Detective Sergeant Joshua Palmer dated 30 September 2019 (Palmer police statement): Exhibit R7. DS Palmer is a Senior Investigator with the Corrective Services Investigation Unit at the Long Bay Correctional Complex. He gives evidence of the detainee's unwillingness to provide a statement in the investigation and that the reason the charge of providing a false statement was dropped against the Appellant was because it was decided that it did not contribute to the criminality of the more serious offence of assault; 7. Statement of SAS James Warwick dated 4 October 2019 (Warwick Statement): Exhibit R8. SAS Warwick held the position of Manager of Security on the day of the assault. He annexes to the Warwick Statement: 1. an Incident Reporting Module completed at the time of the incident; 2. an injury questionnaire following an interview with the detainee; 3. an email from SAS Warwick to A/Governor Woods regarding the accident; and 4. a Use of force Review Report dated 26 October 2017 regarding the incident. 1. Statement of then SAS Pushpa Dogra dated 9 October 2019 (Dogra Statement): Exhibit R9. SAS Dogra was the SAS at the MRRC at the time of the incident. He gives evidence of his interactions with the detainee including attempting to have an incident questionnaire completed by him after the incident and annexes documentation to the Dogra Statement relating to the incident; and 2. Affidavit of Mr David Aitken dated 7 November 2019 (the Second Aitken Affidavit): Exhibit R10. In the Second Aitken Affidavit, Mr Aitken gives evidence with respect to the way in which the Department of Justice manages misconduct allegations and annexes a number of documents, including some information relating to the October 2012 incident involving the Appellant.
Mr Aitkin, FCCO Valliant and SAS Warwick were cross examined by the Appellant during the hearing of the matter. The Respondent relied upon the case summary filed on 16 October 2019 and submissions filed with the Commission on 7 November 2019 (the Respondent's written submissions) and delivered oral submission at the hearing. The Respondent's case is neatly summarised in the Respondent's written submissions at paragraph [32]-[35]: [32] The respondent contends that the appellant's plea has occasioned a finding of guilt in respect of a serious offence, constituting misconduct for the purposes of s 69 of the GSE Act. [33] The respondent contends that the issue to be determined by the Commission is whether, pursuant to s 100C of the IR Act, it should confirm the order for dismissal or termination or substitute another order. [34] The respondent contends that the order for termination is appropriate in the present case for the following reasons: a. the appellant has received a reprimand for a prior incident involving the use of force in response to an inmate spitting at a time which post-dates his son's diagnosis and the appellant's emerging concern about such behaviour; b. the appellant has therefore had occasion to consider his peculiar circumstances in context of the risk of spitting and how he might avoid such a circumstance or how he might respond to such a circumstance, should it arise again; c. the appellant's response to spitting in 2017 is an escalation in response when compared with his response to spitting in 2012, and is not the type of response to be expected from an experienced FCCO who has been working at the MRRC for nearly two decades, dealing with difficult inmates; d. both instances of the appellant's use of force in the context of spitting were immediately preceded by the appellant's being seen on CCTV to handle roughly the inmate concerned in circumstances where such rough-handling appeared neither appropriate nor necessary in the circumstances, de-escalation with difficult or distressed inmates being no doubt the preferable course to be taken by professional, experienced officers, however difficult that might be; e. the appellant has undertaken some courses which might assist him to respond more constructively to an incident of spitting or other aggression, but does not identify what he might have done differently in respect of either of the two spitting incidents, either to avoid (if possible) their occurring or to de-escalate the situation without the use of spontaneous or reactionary force; and f. it is material to consideration of the appropriate misconduct outcome what steps the appellant has taken to reflect on his conduct and to identify what techniques he might use in future to avoid reacting spontaneously ("losing it" or lashing out in rage and fear) to an incident of a kind the appellant is particularly sensitive to given his personal circumstances. [35] Plainly the appellant is a commended officer with long experience. He is also an officer with particular personal circumstances which make him vulnerable to responding disproportionately to a spitting or similar incident. It is incumbent upon the appellant to demonstrate to the Commission that he will not again react in such a manner to such an incident, in circumstances where he has twice reacted with force.

The Appellant's evidence and submissions

The Appellant relied upon following witness evidence: 1. Statement of Mr Henri Eparaima dated 30 October 2019 (Eparaima Statement): Exhibit A1. The evidence given by the Appellant in the Eparaima Statement and during the hearing of the matter is considered in greater detail below; 2. Statement of Mr David Bartle, Industrial Officer for the Public Service Association of New South Wales dated 30 October 2019 (Bartle Statement): Exhibit A2. The Bartle Statement attaches a letter outlining misconduct and the disciplinary outcome relating to another correctional officer engaged by the Respondent, along with an extract from the Custodial Operations Policy and Procedures titled "13.7 Use of force" (Use of force policy); and 3. NSW Police Force document relating to the detainee: Exhibit A3.
The Appellant relied upon written submissions filed on 31 October 2019 (the Appellant's written submissions) and delivered oral submissions before the Commission.
In submitting that the appeal should be allowed and the Appellant reinstated with back pay, the Appellant urged that the following matters should be taken into account at [43] of the Appellant's written submissions: 1. The Appellant has consistently admitted his wrongdoing and has not attempted to diminish the seriousness of his conduct; 2. The Appellant's disciplinary record is not of any substance and he had not been disciplined previously for using excessive force on an inmate; 3. The Appellant had been a good and highly respected Correctional Officer and there was no suggestion that he had not performed his duties in a satisfactory manner. In fact, the Appellant had received a commendation for his performance and a written compliment in relation to how he had dealt with a violent inmate; 4. The Appellant's actions were motivated by his belief that [his son's] compromised immune system left him vulnerable to any infections and/or viruses [the detainee] may have infected him with; 5. The Appellant has taken positive steps to address his conduct by attending counselling and completing an anger management course; 6. The Appellant is 54 years of age and has no other training or qualifications to fall back onto. He is the sole income earner for his family and has substantial financial commitments; 7. It is likely that the Appellant's security licence will be cancelled for 5 years, which will have the effect of preventing him from obtaining any work that requires the holding of such a licence. This will limit the employment opportunities available to him; 8. Although the Appellant's actions were serious, having regards to all the circumstances, there were alternative penalty options available to the Respondent other than dismissal; 9. The Respondent gave little or no consideration to the Appellant's concerns for his son's health and wellbeing, which provoked him to act in the manner he did; 10. The actions of the Appellant on the day in question were an aberration and unlikely to be repeated; 11. The Respondent's decision to dismiss the Appellant was flawed because it - 1. Did not give any consideration to the findings of the Magistrate that [the detainee] had spat in the Appellant's eye and that this had provoked the Appellant to hit him; 2. Considered that the statement the Appellant had given to the Police that [the detainee] had assaulted him (by spitting in his eye) was false and constituted dishonesty on his part and an extreme waste of Police resources, in circumstances where the Magistrate had already made a finding that [the detainee] had spat in the Appellant's eye; 3. Ignored the findings of the Magistrate that The detainee had spat in the Appellant's eye, which constituted the assault upon the Appellant that he had complained about to the Police; 4. Considered that the Appellant had continued to minimise the seriousness of his actions, and by doing so, had provided a disingenuous account in response; 5. The Appellant was also well-regarded by his superiors and colleagues. Footnotes omitted.
The Appellant sough the following from the Commission: 1. allow his appeal under section 100C(2) of the Industrial Relations Act; 2. set aside the disciplinary action imposed upon him by CSNSW; 3. order that any period of employment of the Appellant with CSNSW is not to have been broken by the decision of CSNSW to dismiss him; and 4. order CSNSW to pay the Appellant the remuneration he would have received but for the decision of CSNSW to dismiss him, less any amounts earned by the Appellant in the meantime in other employment.

Legislation and principles

The Commission's powers in a disciplinary appeal of this kind are contained in Ch 2 Pt 7 of the Act, which relevantly provides as follows: 98 Right of appeal (1) Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer. … 100C Decisions with respect to appeals … (2) The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. (3) Without limiting the generality of subsection (2), if in relation to a disciplinary appeal it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Commission: (a) is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits, or (b) may quash the decision and remit the matter back to the employer with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the employer. (4) The decision of the Commission in respect of an appeal is, except as provided by section 197B, final and is to be given effect to by the employer against whose decision the appeal was brought. 100D Orders by Commission with respect to payment of salary and continuity of employment (1) Without limiting section 100C, if the Commission decides to allow a disciplinary appeal, the Commission may: (a) if the employee has paid a fine imposed by the employer or his or her pay has been forfeited - order the employer to repay the amount of any such fine or forfeited pay, and (b) order the employer to pay the employee an amount stated in the order that does not exceed the remuneration the employee would, but for the decision of the employer, have received from the employer, and (c) order that any period of employment of the employee with the employer is taken not to have been broken by the decision of the employer. (2) Any such order by the Commission must be given effect to by the employer. (3) Nothing in subsection (1) enables the Commission to make an order for compensation in the case where a person is not reinstated or does not continue in employment.
In public sector disciplinary matters, the Commission is required to conduct a fresh hearing of the evidence to determine the facts based on the evidence. That is to say, I am not to simply conduct a review of the Respondent's decision. Rather, as set out in the decision of Marroun v State Transit Authority (2017) 96 NSWLR 295 at [35]: In colloquial terms, an appeal by way of fresh hearing means that the appellant body "stands in the shoes" of the original decision-maker. Where there is, as here, a specific charge or complaint before the employer, which has resulted in particular disciplinary action, it will be necessary for the Commission to consider that charge or complaint and, if it be upheld, determine what disciplinary action should be imposed. Generally, it is assumed that the appellant body has the same powers as the original decision-maker, no more want and no fewer. One basis for the inference is a use of the term "appeal" to describe what is in substance a fresh hearing.
The Commission's task in these proceedings, is to first determine whether the relevant misconduct occurred. The second step is to determine whether, in the Commission's view, the punishment is appropriate: see Rail Corporation of New South Wales v Elleray [2013] NSWIRComm 86 at [54].
I further note that Marroun confirmed the proposition that post-decision events or conduct may be relevant to the consideration of penalty, but not to the consideration of the essential precondition to the imposition of a penalty, namely whether the disciplinary charge has been proven. Accordingly, if the Commission allows the appeal the Commission may consider post-decision events or conduct in determining whether some other form of disciplinary action is appropriate: see Maritime Services Board v Murray (1993) 52 IR 455.
I note that in exercising its jurisdiction in public sector disciplinary decisions, the Commission is exercising a protective function: see Marroun at [21] and Secretary, Department of Justice v Schoeman (2014) 86 NSWLR 749; [2014] NSWIRComm 40 at [173].

Consideration

The Appellant admits that he assaulted the detainee on 22 October 2017. In determining whether the termination of the Appellant's employment was an appropriate outcome, relevant matters include the nature and seriousness of the assault, the Appellant's explanation for the assault and how he was provoked, the Appellant's remorse and likelihood he will engage in misconduct in the future, the Appellant's employment history and the impact of the termination of employment on the Appellant. I have considered these matters below, along with the Appellant's argument that he was not treated equally when compared to another employee found to have engaged in an assault of a detainee.

The nature and seriousness of the incident

The evidence is consistent and uncontested that the detainee was being uncooperative prior to the assault. He was transported from Surry Hills Police Centre to the MRCC where the Appellant was working in intake. FCCO Takis and CCO Tamber accompanied the detainee from Surry Hills to the MRRC and gave evidence that force was required to get him on to the transport and he was unhappy about being in custody.
Upon arrival at the MRRC, the detainee refused to answer questions asked by the Appellant to establish his identity and he and FCCO Valliant had to physically remove him from the transport. The Appellant gave evidence that the detainee was "refusing to go anywhere" and "was being non-compliant".
FCCO Valliant states at [5]-[6] of the Valliant Statement: "[5] The inmate was sitting down in the truck and was refusing to move. Henri and I lifted the inmate by the arms off the truck and he began to walk with us escorted into holding yard 1. The inmate sat down on the bench on the left-hand side of the holding yard. Henri leant in toward the inmate to take his handcuffs off. I recall the inmate had his hands up in front of him to facilitate the removal of the hand cuffs. As this happened the inmate spat at Henri striking him on the left-hand side of the face. I was stunned by what happened. [6] It appeared that Henri was stunned also and taken aback a bit by it and reacted by slapping the inmate to the face. These slaps were open handed strikes with the right hand about 5 to 6 times. Henri took a step back at this point. The inmate has continued to verbally abuse Henri. It is at this point Henri has reacted again and hit the inmate with an open hand about 5 to 6 times I can't be certain on the amount of strikes."
The Appellant gave the following evidence with respect to the assault at [59]-[62] of the Eparaima Statement: "[59] As we moved [the detainee] towards the holding cell, he was continually mouthing off and not wanting to co-operate. I said to him: "Come on mate, you've got to sit down." However, [the detainee] again refused to move, so I pushed him towards the bench in the holding cell. [60] I didn't realise how light [the detainee] was when I pushed him, but as he was not complying, I had to push him, and he came into contact with the wall behind the bench and came back towards me. I then pushed him down onto the bench. Once [the detainee] was seated, I approached him and said: "Mate, I need to take your cuffs off you." He had his arms down low, so I lifted them up in order to access the handcuffs with the key. As I leaned over, [the detainee] spat at me and his spittle hit me in the left eye. [61] I could not believe what [the detainee] had done to me, as I had tried to be nice to him. I recall stepping back from him and saying words to the effect: "Why did you fucking spit at me for? I didn't do anything to you." It was then that I just lost it and slapped [the detainee] on the face with my open hand. After this initial slap, [the detainee] said: "I will spit at you again." [62] I have very little recollection of what occurred after that, but I accept that I then slapped [the detainee] several times with my open hands because he was threatening to spit again. I believe that my instinctive reaction was to stop him from spitting at me again or anyone else."
The CCTV footage of the assault on 22 October 2017 shows the Appellant bringing the detainee into the cell. The Appellant then pushes the detainee into the wall twice before striking his face and upper torso 11 times with both arms. After the pushes to the wall, the Appellant administers the first nine strikes, before a short pause, then continuing the assault with two further strikes.
As a consequence of the angle of the camera recording the CCTV footage, it is inconclusive as to whether the detainee spat at the Appellant and whether the strikes were with an open or closed fist.
The account of FCCO Valiant and is inconsistent with the CCTV footage and the Appellant's evidence. When taken into the cell, the detainee does not sit down but is pushed against the wall by the Appellant, the strikes to the detainee then commence almost immediately after this and there simply isn't time for the events described by FCCO Valliant to play out as he explained.
However, I accept the account of FCCO Valliant and the Appellant that the detainee was being defiant and the Appellant was spat on at some point by the detainee prior to the assault and this provoked the Appellant. The fact that the Appellant is spat on is supported by the evidence of the CCO Tamber who stated that he heard the Appellant asking the detainee, "Why the fuck did you spit on my face?" proximate to the assault: Tamber Statement at [8]. I note also the absence of evidence from the detainee on this point. The evidence also supports the conclusion that the strikes were with an open hand, rather than closed fist.
The offence was an act of violence against a person who was being defiant and difficult, but whom was still in a vulnerable situation, handcuffed and unable to fend off the Appellant. There was a considerable size difference between the Appellant and detainee. The Police Profile estimated the detainee as 155 cm in height and 60 kg in weight, while SAS Warwick appears to have estimated his weigh as ">50 kg": Warwick Statement, attachment C. By way of contrast, the Appellant estimated his own weight to be between 100 to 104 kg: Tcpt 18 December 2019 p 58 ln 34-35. The assault occurred in the company of another correctional officer, FCCO Valliant.
The detainee was described by then SAS Dogra as, "extremely mentally unwell and volatile". After being detained in a safe cell from 22 October 2017 to 3 November 2017 under the care of Mental Health, he was released on 7 November 2017 as a Mental Health Forensic Patient to a Mental Hospital: Dogra Statement at [9].
By the nature of his role, the Appellant was in a position of trust and authority in relation to the detainee. The Respondent had a duty of care towards the detainee, delegated to the Appellant which he breached.
While there is no evidence before the Commission that the detainee suffered substantial injury or emotional harm as a result of the assault, the assault was clearly serious in nature.

The Appellant's explanation for the assault and the provocation from the detainee

I accept the Appellant was significantly provoked by the detainee and that the Appellant's personal circumstances as they related to his son's illness contributed to his response. The Appellant gave evidence with respect to his son's condition and how this contributed to his conduct: Tcpt 18 December 2019 p 78 Ln 38 to p 79 ln 41: Q. You didn't think to include anything more than that? A. No. All I was thinking about ma'am is the repercussions of what I'm going to have to go through, that's basically what was going through my mind at the time of the incident. I was thinking that I would - because I'd been spat at in the past, the six months of blood testing that I would have to undertake and which is stressful in its own right because I still wouldn't know whether I had contracted any form of communicable disease, that was one you know. The actual six months of non-intimate contact I'm going to have with my wife or lack of and that's hard but the most important thing that really you know I was thinking about is the wellbeing of my son Oliver and that was really on my mind and it's always been on my mind I think about it all the time and because in 2010 he was diagnosed with paediatric melanoma and at that very point, that very point doctors told us that he only had six months to live and there was nothing we could do about it. That was definitely one of the lowest points and times of our lives to see that your son is not going to be with you for the next - from six months on. And that was in my mind the whole time, everything else was just a blur unfortunately when - we were fortunate enough at the time like I said was the lowest part of all our lives, my wife, to come to realisation that our son would not be with us for the next - from six months on. Fortunately there was a trial drug that was introduced into the fray and we were blessed to be able to get our son on to that drug, onto that treatment and it was at least something we could do. So we did it and fortunately we were blessed that the drug you know was hard to watch the treatment because over the 12 month period that he was, Oliver was on the treatment, he was very - it was hard to see him he was sick more than anything over the whole period. It was very hard for all of us and especially for him and you know I have those memories all the time and fortunately for us God bless the treatment worked, it actually stopped the spread of the cancer. It stopped the reoccurrence of it ever coming back to this point, touch wood, and you know that's what I was thinking about. I think about constantly, all the time. Q. What-- A. And the unfortunate thing with that treatment is that Oliver's got a compromised immune system. Now we take all precautions we have since it's happened with Oliver. We deal with any health issues that he has because if we don't his condition deteriorates pretty quickly and over the last - since the diagnosis I suppose numerous times we've had to take him to Westmead Hospital straight away or else his ..(not transcribable).. just goes from zero to 40 in the space of an hour or something like that so it's a very thing - and that's one of the reasons why I reacted the way I did because I was scared because I can't afford to take any diseases or infections home because the repercussions could be you know tremendous for my son. It's one of those things and I apologise, I'm so sorry that this incident happened and I'm so regretful that you know I've put everybody through this. My wife, my friends, my family you know the department. I apologise for my actions you know it's inexcusable the way I reacted and I just I regret every bit of time that heartache I put my wife and my kids through, my friends, fellow workmates. The department you know the way I've been made - my actions have made it look horrible which they are, they were and that's inexcusable and I just regret the whole thing and I regret you know like what hurt I gave to Mr Dang. I didn't mean to - and that's the last thing I wanted to do is ever hurt somebody but unfortunately I was thinking - that's what I was thinking of and I reacted and I did, I over reacted and that's unfortunately what's got me in this situation now and I'm really sorry about the whole thing.
I also accept that the Appellant's previous experience of having been spat on in 1999 influenced his reaction: see Eparaima Statement at [44]-[48].
The Appellant gave evidence with respect to the assault that, "I believe that my instinctive reaction was to stop him from spitting at me again or anyone else", and "I just lost control when (the detainee) spat in my eye because in that instant I realised what could be the ramifications for me and possibly my son because of his precarious health."
Under cross examination, the Appellant also gave the following evidence in explanation of the assault: Tcpt 18 December 2019 at p 71 ln 37 to p 72 ln 8: Q. You've said in your statement that the reason why you administered those strikes to Mr The detainee was to stop him spitting again? A. Yes. Q. How would slapping him about the head numerous times stop him from spitting? A. My perception was just to try and give him a deterrent to stop. Q. You're a custodial officer of long experience Mr Eparaima? A. Yes. Q. You're the only custodial officer apart from Mr Bartle in this room with that length of experience correct? Can you explain to us why it is that you think or you thought at the time that slapping the inmate about the head, striking the inmate about the head 11 times would stop him from spitting? Can you explain that to us so that we understand? A. It's hard to put a perception on why that would happen but inmates over - well over the years I've dealt with inmates in an aggressive manner like that and that protocol has in nine times out of ten assisted me in dealing with the situation. Not particularly in that aggressive - that format but very similar to what I actually did is to try and create a deterrent for them to stop their behaviour. Q. You've mentioned protocol Mr Eparaima what are you referring to when you use the word protocol? A. In relation to which? Q. No this is a word you've used in evidence. You've just said you're dealing with someone who is presenting in an aggressive manner that protocol has assisted me with dealing with people who are presenting in an aggressive manner. What protocol are you referring to? What do you mean by protocol? A. Using whatever means necessary to deal with the situation. Q. So that's a personal protocol, when you say protocol that's your personal perception of what's an appropriate-- A. No the protocol-- Q. --response. A. The protocol is if you have - for example a non-compliant inmate like he was, there's protocols in relation to you're entitled to use, to deal with that situation. That's protocol. Q. But my question is more particular Mr Eparaima. I'm asking you about administering 11 strikes to the head of the inmate. How is it that that was going to prevent him in your mind from spitting again? It's a very specific question. A. To be honest with you I thought it would help because I actually was not thinking correctly and I actually my mind was just not there. I'd lost it. Q. Sitting here now you'd agree that what you did was not appropriate in the circumstances? A. Yes. Q. You're aware that you can use force as a Correctives Officer? A. Yes. Q. In certain circumstances? A. Yes. Q. That the test is it's got to be reasonable and necessary? A. Yes. Q. Do you agree with me that what you did was neither reasonable nor necessary? A. I'd agree that I lost it. Q. Mr Eparaima do you agree that your response was inappropriate? A. Yes. Q. To the inmate in slapping him, striking him? A. Yes. Q. Do you agree that more than that it was inappropriate for an officer of your seniority to strike the inmate as you did? A. I cannot - I agree with what you say. Unfortunately at that particular time I just wasn't my mind was not concentrating being inappropriate, my mind was just concentrating on what I'd just been - what I've just gone through. I'd just been spat at. Q. And that's-- A. And my mind was - I wasn't thinking clearly, I was just thinking of other things and that's all that was going through my mind. Q. Do you agree with me when I say that the use of force, the striking 11 times, was uncontrolled on your part? A. I didn't understand what I did at the time because unfortunately I wasn't with it at that time, I did momentarily had lost - like I said to Mr Warwick I lost myself. Q. To use your word momentarily are you saying you were momentarily out of control? A. Yes. Q. You'd agree with that proposition I'm putting to you? A. That position is that I lost my - lost control.
I accept the Appellant's account that the offending conduct was not planned and that he "lost it", meaning he lost control of himself in circumstances where he was significantly provoked and that provocation had a particularly adverse impact on him because of the unique medical circumstances of his son being immunocompromised.

Remorse and likelihood of future misconduct

It is appropriate for the Commission to consider whether or not the Appellant accepts the seriousness of his behaviour and whether it is likely that he would conduct himself in the same way again in the future. In that regard I note that the Appellant has expressed remorse with respect to his conduct: see for example, [109]; [115]-[117] and [121] of Eparaima Statement. The Appellant also gave evidence of his remorse before the Commission and represented that he would not engage in the same or similar conduct in the future.
However, it should be noted that the Appellant's initial response to the incident was to pursue the detainee for his spitting, as he reported this aspect of the incident to NSW Police, without giving an account of his retaliatory conduct. Further, although the Appellant called SAS Warwick and told him that he had "lost it and given it" to the detainee, the Appellant's written report of the incident did not disclose the extent of his retaliation. The Appellant's written report of the incident to the Respondent stated that he had reacted to being spat at "without hesitation by applying an open handed palm strike to" the detainees head. The Appellant continued that his "memory beyond that point is unclear however I do recall Officer Valiant (sic) encouraging me to leave the cell which I did": Misconduct Report Exhibit R1 Attachment B. The Appellant did not explain in the Misconduct Report that he had retaliated with a number of strikes to the head and upper torso of the detainee.
The Appellant's actions in submitting these reports to NSW Police and his employer demonstrate that he was not immediately remorseful of his own actions.
The Appellant gave evidence that he had taken steps to address his anger, including attending six sessions of counselling through the EAPS Program, which were conducted on behalf of CSNSW by Life Resolutions at Liverpool. Further, the Appellant undertook an anger management course with Catholic Care, attending six Defuse (men managing emotions) sessions. He deposes that he would not react in the same manner if a similar incident occurred in the future.
The termination of employment has had a significant impact upon the Appellant and I find that if he was reinstated, he would try not to do anything to find himself in a similar situation. It is difficult to predict if another incident might occur if he was reinstated, however on balance, I think there is at least a chance he would conduct himself in a similar way given his explanation of having "lost it" on 22 October 2017.

The Appellant's employment history

The Appellant has given long service to the Respondent and I accept his evidence that he "loved (his) role as a Senior Correctional Officer and believed that over the years of (his) lengthy service with CSNSW (he) had contributed to the efficient running of the LBCC and MRRC." The Appellant received a number of personal commendations for his work with the Respondent and is well respected by his colleagues: see for example, Eparaima Statement at [24] and pp 106 - 113; References from Mr Arthur Chamberlain, SAS, Mr Sam Mariner, SAS and Mr Mark Hutchinson SCO: Eparaima Statement at pp 130-133.
The Appellant has also invested considerably in his professional development completing a number of courses offered by the Respondent: see Eparaima Statement at [125] and pp 113 - 128. He gave evidence that he limited the days that he took off on sick leave and received formal recognition for good attendance, albeit in 2002 and 2004.
The Appellant was received a reprimand in respect of an incident involving force being used upon a detainee in October 2012. In respect of this incident, the Appellant was found to have grabbed the detainee around the neck four times. The investigation found that the Appellant failed to consider, in the circumstances, any alternative to the Use of Force he adopted. The Appellant claimed that this action was in response to the detainee threatening to spit on him. This incident is of little relevance to the matter at hand, noting that it occurred some 5 years prior to the assault that led to the Appellant's termination of employment. It is also worth noting that the Appellant was not found to have used excessive force during this incident.
The Appellant was also subject to another disciplinary matter in respect of an incident in January 2017 when he allowed a detainee to use the toilet in private in contravention of the Respondent's operational requirements. This incident resulted in a fine of $800 and a reprimand.
Overall, given the length of the Appellant's service, I have concluded that he was a highly valued employee with a not unscathed but pretty good employment record.

Impact of the decision to terminate the Appellant's employment

The Appellant is married with three children, one of which is dependent upon him. He is the sole bread winner from his family, with all three adult children living at home.
The Appellant gave evidence in relating to the financial impact the suspension and termination of his employment has had and will continue to have upon him.
At the time of the hearing, the Appellant had substantial financial obligations, including three loans with a mortgage balance of $1,331,000 requiring loan repayments of $5,680 per month. However, while there was evidence before the Commission that the Appellant owned his family home and a rental property in Miranda, there was insufficient evidence before the Commission to enable an assessment of the Appellant's net financial worth, for example the equity he has in the assets associated with the mortgages. He gave evidence that he pays for one adult son's university tuition fees and books and monthly physiotherapy appointments.
When suspended, the Appellant was paid his base pay of $2,429.88 per fortnight, which was significantly less than what he was earning prior to his suspension as he regularly worked shifts that attracted overtime. This was demonstrated by the a fortnightly payslip for the pay period ending 10 December 2017 where he earned $5,284.58 gross and his PAYG Summary for the year ending 30 June 2017 which showing that his gross income was $92,794 for that financial year, while his base annual salary was $76,901: see Eparaima Statement at pp 101-102. The Appellant gave evidence that since his suspension and termination, he had lost $9,719.52 in income. No doubt those losses were ongoing.
At the time of the hearing, the Appellant had secondary employment as a Part-Time Evening Duty Manager earning about $1,100 per fortnight net. He was also receiving rent from a property located in Miranda.
The suspension of the Appellant's employment and ultimate termination has had a considerable financial impact upon him. The loss of his employment will place much pressure upon the Appellant and his family into the future.
The Appellant does not have a trade or other higher qualifications and it was agreed between the parties at the hearing that his Security Licence would be revoked as a result of the assault for a significant period of time.

Unequal Treatment

Before the Commission was a letter dated 15 July 2019 to another officer of the Respondent who was issued with a warning and required to undertake remedial action after he was found to have used excessive force on a detainee and given a false or misleading statement about the incident: Annexure A of Bartle Statement. The Appellant argued that the treatment of the Appellant was disproportionate when compared to the outcome relating to this officer, where the matter was not referred to the Correctional Services Unit for investigation and did not result in consideration for criminal conviction. The Commission is unable to conclude from this letter that the Appellant was treated unfairly when compared with this officer in the absence of evidence of all of the circumstances of the incident and related investigation, including the employment history of the relevant employee. In any event, the Commission is required to consider the Appeal based on the facts and circumstances of the matter before it.

Conclusion with respect to termination of employment

The action taken by the Appellant when he assaulted the detainee on 22 October 2017 constituted a gross breach of the duty of care owed to a prisoner detained by the State of New South Wales. The detainee was effectively defenceless, handcuffed and significantly smaller than the Appellant. Whilst the detainee was defiant and assaulted the Appellant by spitting on him, the Appellant's retaliatory conduct was dangerous, disproportionate and unnecessary. The conduct of the Appellant was not condoned by any protocol or policy of the Respondent.
While the provocation by the detainee and the unique family circumstances of the Appellant are relevant, they do not justify his actions. The Appellant was an experienced and senior employee in a position of leadership to more junior staff and his conduct fell well short of expected standards. The abuse of a detainee, who of necessity is in position of vulnerability by a Corrective Services Officer, to the extent and degree in this matter, constitutes an especially serious form of misconduct.
The Commission is exercising a protective function in determining this appeal. This necessarily requires consideration of the interests of the Appellant, but also the object of the disciplinary outcome as the protection of the public, the maintenance of correct standards of conduct on the part of employees of CSNSW and the protection of the reputation of CSNSW.
The decision to uphold the termination of employment of the Appellant will have a significant personal impact upon him. However, these factors do not outweigh the gravity of his actions.
I have arrived at this decision, having carefully considered the way in which the Appellant was provoked by the detainee, his personal circumstances, including the illness suffered by his son and his experience of having been spat on in 1999, his lengthy service, the positive accolades from his peers and superiors, his stated remorse and the remedial steps he has taken.
I have also considered the Appellant's suggestion of amending the disciplinary outcome to demotion with a warning. This would not be an appropriate response to the violence inflicted by the Appellant upon the detainee. The only disciplinary action that is appropriate and proportionate to the Appellant's misconduct in this matter is the termination of his employment.
For these reasons, I have decided the appeal must be dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 May 2020

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