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[2007] AIRC 128
General information, not legal advice.
Australian Industrial Relations Commission
2007-02-21
Original judgment source is linked above.
s.643 application for relief in respect of termination of employment
[1] This decision arises from an application made pursuant to s.643 of the Workplace Relations Act 1996 ('the WR Act') by Mr Justyn Smith ('the applicant') in respect of the termination of his employment with GEO Group Australia Pty Ltd ('the respondent').
[2] The applicant's s.643 application was lodged on 4 July 2006. The matter was the subject of an unsuccessful conciliation on 14 September 2006, and a certificate was issued on 27 September 2006 pursuant to s.650 of the Act.
[3] By way of a Notice of Election filed in the Commission on 29 September 2006, the applicant elected to proceed to arbitration for determination of whether the termination of his employment was unlawful or, alternatively, harsh, unjust or unreasonable.
[4] Directions were issued by the Commission on 17 October 2006, and the matter was set down for hearing on 22 and 23 November 2006. At the hearing of the matter the applicant represented himself and Ms Noeline Rudland, of Counsel, represented the respondent with leave.
[5] The Applicant was employed at the Junee Correctional Centre ('the Centre') as a Facility Services Manager. His duties were to manage food services, the kitchen, Industries (where items were made for several businesses) and to manage the maintenance section. In this role he had daily contact with about 150 inmates who were employed in different programs and received payment for their work. On any given day he would speak to up to about 50 inmates on work related issues including occupational health and safety (OHS), pay reviews, training and working conditions.
[6] He commenced work at the Centre on 20 March 2006. He began induction training with the training officer Mr John Da Roit at around 9.30am that day. At that time he received the respondent's training manual titled 'Security Awareness Induction Workbook.' Mr Da Roit and the applicant read some of the Workbook, and the applicant was told he would be asked some questions and instructed to mark with a highlighter certain sections of the Workbook. According to the applicant Mr Da Roit also asked him to read certain sections of the Workbook and then asked him some questions about the first section, which related only to the company. Mr Da Roit then asked the applicant to watch a video and left the room for about 30 minutes, having given no further instructions.
[7] The applicant estimated that the video was about 20 years old and based on a US correctional centre. He was uncertain about the relevance of the video in relation to his position, and questioned Mr Da Roit on his return. According to the applicant Mr Da Roit shrugged and said "Oh well, it's all that we have on video." [1] At that time, the applicant thought the video was not relevant to him as a non-custodial officer.
[8] According to the applicant's statement the induction continued with a tour of the facility until 11.30am. After lunch, the applicant returned to the training room to watch a second video on the manipulation of custodial officers by inmates. He was then asked a number of minor questions about manipulation. The rest of the induction day was spent touring the remainder of the facility. Mr Da Roit asked him to complete reading the Workbook at work, but the applicant found he had no time to do so due to other priorities, including preparing for the arrival of a new staff member in two weeks time.
[9] It was the applicant's evidence that the Workbook stated that as a new employee he was to receive 40 hours training and induction and was to complete these hours by spending time in different areas with other staff managers, and that this did not happen. It was his belief that the induction training was not maintained because setting up a new maintenance program became a priority for the Centre. The applicant stated that he was instructed by Mr Mathew Karpanen, the Accounts Manager for the respondent, to get the program working as a matter of priority. Further, the applicant claimed that he had spoken to Ms Angelique Deep, Human Resources Manager, about the 40 hours' training, and she had told him not to worry about the training and to get the new program organised. He also thought that he had spoken to Mr Derek Bullock, General Manager of the respondent, about the training and that "he didn't seem worried about the training aspect" [2], and had said just to get the new system up and running. It was his evidence that he was at no time directed to the Code of Conduct section of the Workbook as a section of high importance.
[10] The applicant also gave evidence concerning the incident that occurred during his employment which led to the termination. He stated that during his employment he had become aware of a number of matters which he considered similar to the incident which had resulted in his termination.
[11] He stated that Ms Sally Freer, who joined the respondent's staff as the applicant's assistant approximately two weeks after he started work at the Centre, had been asked by two inmates to give them ice-creams from the freezer in the applicant's office. Ms Freer had complied, and when the applicant asked her why she did this she had replied that "they had really annoyed her to do so." [3]
[12] The applicant also claimed that while he was employed at the Centre, Mr Paul Hocroft, who performs maintenance inspections for the Department of Corrections, visited and brought cakes to share with the maintenance staff, including inmates. In addition, during May an inmate who was due to be released had approached the applicant and told him that he had no clothes to wear after release. The applicant spoke to the chaplain who said he could organise clothing through a second hand clothing store and, to the applicant's knowledge, this was done.
[13] It was the applicant's evidence that on Friday afternoon of 9 June 2006, before the applicant was to proceed on leave for a holiday to the US, an inmate 'Inmate M' who worked for the applicant in the maintenance section asked if the applicant could buy him an Orange County Harley Davidson T-shirt from the US. The applicant claimed that he had said to him, "Don't be silly" [4] and walked away. While in the US, however, the applicant reconsidered Inmate M's request as the inmate was being released two days after the applicant's return. He then called his office at the Centre and left a message on his answering machine asking Ms Freer to get Inmate M's shirt size, saying that he would call back for the information. Two days later the applicant spoke to Ms Freer, who gave him the size and then said "Justin, this is not a good idea, I don't think you should do this."[5] According to the applicant's evidence he replied "You're right, don't worry about it."[6] The applicant then told his wife that he was not going to buy the shirt.
[14] It was the applicant's evidence that he had not thought that buying a t-shirt was gross misconduct given that other staff had bought and given items to inmates, nothing had been said to them, and they were not dismissed for gross misconduct. He also claimed that while he initially considered buying the shirt, he had intended to seek approval from the General Manager to put it in the inmate's luggage for him to have after he had left the Centre, two days after the applicant's return to work. He did not, however, buy the shirt.
[15] So far as the circumstances surrounding the actual termination of his employment were concerned, the applicant stated that he had arrived back at work from leave on 28 June 2006, and began work at 7.15 am that day. He was then called to a meeting with the General Manager of the Centre. At that meeting were Mr Derek Bullock, the General Manager, and Dom Karauria, the Senior Correctional Manager. The applicant was asked about the purchase of the t-shirt and stated that he didn't buy it. He was then handed a letter stating that he was being instantly dismissed on the grounds of gross misconduct. He had tried to plead his case to the managers but was unable to convince them he had done nothing wrong and that there was no gross misconduct because he did not actually buy the t-shirt. He was informed that he had had the intent to do so, that that was sufficient, and that he had put the security of the Centre and its staff under threat. He was then walked out of the Centre.
[16] It was the applicant's evidence that he had written a letter to the Centre apologising for his actions, even though he believed his actions were not gross misconduct, because he desperately wanted his job back. He had enjoyed his job immensely.
[17] The applicant claimed that t-shirts did not come under the list of contraband items in the respondent's training manual, and neither did cakes nor ice creams. However, cakes and ice creams were given to inmates without any consideration of whether that constituted an act of gross misconduct.
[18] On 12 July 2006, he received a letter from the respondent stating that he was to be given an internal hearing at the Centre on 14 July 2006. The applicant had only one day to prepare for the hearing. Mr John Myers, General Manager, Fulham Correctional Centre, conducted the hearing over approximately 45 minutes. Also present were Ms Deep and Mr Karpanen. During the hearing the applicant was asked a number of questions in relation to the incident and then relayed his version of events. On 24 July 2006, the applicant received a letter dated 19 July 2006 stating that his dismissal had been upheld. [7]
[19] The applicant claimed to have suffered from depression for a couple of weeks following the termination. After about two weeks he began to apply for other employment in the Cootamundra and Riverina areas but did not receive one job offer. It was his belief that he was rejected because he had declared that he was dismissed from the Centre for gross misconduct. The applicant had since relocated to Canberra to find work and had been forced to pay rent there, as well as the mortgage on his family home in Cootamundra. He travelled to Canberra each Monday morning and returned home each Friday afternoon.
[20] It was the applicant's evidence that the dismissal had caused undue stress to him, emotionally and financially. He stated that he was a person of high integrity and morals and a fair worker and manager, as shown by his employment record. He claimed that he would never compromise his colleagues, the workplace or himself.
[21] The applicant commenced new employment on 14 August 2006. He sought compensation in respect of the wages and superannuation lost since his employment on 27 June 2006 as well as "anything else the Commission deems fit, for compensation for mine and my family's dislocation." [8]
[22] The applicant tendered a number of documents [9] in support off his application:
[23] Under cross-examination the applicant agreed that the video shown to him had touched on a number of issues relating to management or the behaviours required of a correctional officer, including being aware of the location of keys, the need to be mindful that prisoners are always watching you as an officer, and being thorough in maintaining security. He confirmed that he had a key to the gate on the walkway into Industries, his office and into the building where work was undertaken by inmates. He conceded that the information on the video regarding keys was relevant to him as a non-custodial officer. The applicant also acknowledged that he had watched another (Australian) video on the topic of manipulation by inmates and that that video discussed how easy it was to be manipulated by inmates. He stated, however, that he did not see the relevance of the examples given. It was his evidence that he couldn't remember exactly what was in the video, and did not remember an example given by the respondent's representative in which a chaplain had brought Chinese food for a Chinese inmate working in the kitchen.
[24] The applicant agreed that the issue of manipulation by inmates was relevant to his work at the Centre, but denied that there was a focus on not being manipulated to provide a benefit to an individual inmate. He claimed that during his employment at the Centre he was too busy to be manipulated and that he was aware of what prisoners were doing and how safely they were working. He claimed never to have felt threatened or manipulated by any prisoner and that he had never been 'stood over.' The applicant said that he understood 'manipulation' as being stood over by an inmate or someone threatening your family unless you give them something or agree not to give them something.
[25] When questioned further, the applicant agreed that he had been given information about different ways that inmates can manipulate, [10] and that he had undertaken a small multiple-choice questionnaire on the issue of manipulation and other security awareness issues on his first day. He claimed to have filled out and signed the answer sheet[11] with help from Mr Da Roit because he hadn't understood some of the questions. He conceded, however, that he had read the Workbook information and had discussed it with Mr Da Roit. He agreed that he had answered "false" to one item which stated "You can bring any item into the correctional centre without authorisation/approval?"[12] He stated that he could not remember whether he needed help with that answer. He also stated that he had thought about what the words 'any item' meant when answering the question, and that he had not brought anything into the Centre. He conceded that the Work Book at page 89 stated that nothing must be taken in or out of the Centre without authorisation.
[26] The applicant also conceded that in the first two to three weeks he was at the Centre he had met with the Operations Manager and Deputy Operations Manager. He claimed that there had only been a general conversation about the Centre, to get an overview of what they actually did in the Centre, and that they had asked about the applicant's background. He agreed, however, that they touched on security issues as part of that general discussion. He also conceded that the Operations and Deputy Operations Manager had expressed very firm ideas to him about the need to maintain security within a correctional facility. He also agreed that, as part of the senior management and executive group, it was important to show leadership and to lead by example.
[27] The applicant claimed to have had concerns at that time about the limited nature of his induction training, and stated that he had spoken to Ms Freer about it. He had not had the opportunity to undertake any extra training set up at the Centre due to his workload, but had been looking forward to doing more training when he returned from leave.
[28] The applicant agreed that, as Facility Services Manager, he was responsible for overseeing the inmates who worked in Industries and that the ice-creams in his freezer were left over from a barbeque he had conducted, for both inmates he had been overseeing and correctional staff, and that the ice-creams were distributed amongst all the participants at the event. He also conceded that he did not see Ms Freer provide the leftover ice-creams to inmates, but was told that it happened by two inmates, and this was later confirmed by Ms Freer. He denied that he had a 'personal' or 'social' relationship with Ms Freer, but agreed that she was a friend of his wife. He also did not believe she had a reason to 'set him up' in the workplace.
[29] The applicant conceded that Mr Hocroft had been visiting the Centre for a number of years doing maintenance inspections, had regularly brought in cakes to share for morning tea with the maintenance workers and, further, that Mr Hocroft did not isolate a particular inmate to provide the cakes to, or provide anything special for any individual inmate.
[30] When questioned about asking the chaplain to organise clothes for an inmate the applicant said that it was 'the done thing' and he believed it was part of the chaplain's job. He also added that he did not purchase the t-shirt for the inmate, but if he had, he was going to put it in his luggage when he left the Centre as the chaplain had done in the past, not before.
[31] In response to a series of questions from the respondent's representative the applicant:
[32] The applicant also claimed that he had considered buying the t-shirt because the inmate was a good maintenance worker who did weekend call outs and saved the company money. He did it out of the kindness of his heart and did not realise it was such a bad thing to do, as the t-shirt was not going to be brought into the Centre and he was going to go through the General Manager to do so. He had reconsidered the purchase while on holidays because he saw the t-shirts everywhere.
[33] Under cross -examination the applicant agreed that he had spoken to Ms Freer the day after leaving the first phone message, and that he had asked if she had obtained the information on Inmate M's shirt size during that conversation. Further, he agreed that Ms Freer had told him that what he was doing wasn't right and that she didn't want any part of it. He claimed to have replied to her that she was right, and "not to worry about it" [13], but had then asked her for the size. Ms Freer had told him the size and that she wanted nothing more to do with the issue and, according to the applicant, he then said that he "wasn't going to do it."[14]
[34] So far as the internal review was concerned, the applicant conceded that he had thought about what he would say in any internal hearing for about two weeks but had not known that there would be a hearing until 12 July 2006. He agreed that he was notified that he could have witnesses at the hearing and had indicated he wanted Ms Freer and Mr Darren Lindsay, who were available. The applicant stated that it was his decision not to call them to give evidence at the hearing, explaining that he did not want to put them under any pressure should he be reinstated.
[35] The applicant agreed that he had not told Mr Myers or Mr Bullock that he always planned on seeking the General Manager's approval before putting the t-shirt with the inmate's clothing. The first time that he had indicated that this had been his intention was in his submission for the arbitration. He claimed that seeking approval was 'the done thing,' that he knew he had to, and that he had followed that procedure previously when bringing in his medications. He had failed to mention his intention as it "was a given" at the Centre. [15] He said, however, that he thought 'nothing in, nothing out' referred to contraband items, not t-shirts, clothing, hats etc, but then conceded that it meant anything at all that was unauthorised.
[36] The applicant stated that he had asked Ms Freer to participate in the process of purchasing a t-shirt for an inmate and agreed that she was his subordinate. He did not think it was "a bad thing to do." [16] He also did not think he had done anything wrong as he did not actually buy the t-shirt for the inmate. He denied that he had asked Ms Freer to photocopy a TV program for an inmate, and denied that she was reluctant to do so. Mr Karauria had told him on his return from leave that three other staff members had heard the voice message he had left for Ms Freer asking her to get the inmate's shirt size. The applicant also denied that what occurred between himself and Inmate M was the inmate 'manipulating' him.
[37] Mr Mathew Eric Karpanen, Senior Finance and Administration Manager, Junee Correctional Centre was the only witness called by the applicant. Mr Karpanen stated that he had commenced work at the Centre on 19 December 2005. On his first day, he had had induction training with Mr Da Roit, then a number of meetings over the next two weeks with various other senior managers and Mr Derek Bullock, the General Manager. These meetings were of about half an hour in duration, and held so that he understood the roles of the other senior managers in the Centre.
[38] It was Mr Karpanen's evidence that his training was sufficient for his role in the Centre, and that it was his first role in a correctional centre. A number of people (including the applicant) had been required to put information into the computer for the new assets maintenance program. He agreed that getting the program up and running was one of the applicant's duties and that he had told the applicant that, in terms of his daily tasks, it was one of his priorities.
[39] A statement [17] filed in support of the respondent by Ms Angelique Deep, Human Resources Manager, Junee Correctional Centre confirmed that the applicant commenced work at the Centre on 20 March 2006. According to Ms Deep, the applicant was given a position description and selection criteria setting out his duties and responsibilities, and a copy of the Employee Handbook which included the respondent's Code of Conduct.
[40] Ms Deep further stated that on 21 June 2006, she became aware of an allegation that Mr Smith was purchasing a jersey for an inmate while on leave in the US. She was told by Ms Freer that Ms Freer had received telephone calls from the applicant, and had had conversations with another inmate. The following day in a meeting with Mr Bullock and Mr Karauria, Mr Bullock gave instructions to Mr Karauria to make some enquiries and report the outcome to him as soon as possible.
[41] On Wednesday, 28 June 2006, Ms Deep was advised by Mr Bullock that the applicant's employment had been terminated. She then made appropriate inquiries as to the applicant's outstanding accrued entitlements for the purpose of ensuring that he received the appropriate termination payment. Ms Deep also attended an appeal hearing conducted by Mr Myers on Friday, 14 July 2006.
[42] Attached to Ms Deep's Statement was a copy of the applicant's letter of appointment which stated that the appointment was subject to a three month probationary period and that his contract commenced on 20 March 2006. It also noted that the employer had the right to terminate the applicant's employment without notice in the event of serious or wilful misconduct, or a serious breach of the employer's policies or procedures. Also attached to the statement was a Position Description and Selection Criteria which obliged the applicant to "(b)uild and maintain effective staff relationships and ensure that the GEO Human Resource and Industrial Relations policies and procedures are adhered to." [18]
[43] A further attachment to Ms Deep's statement was the GEO Group Australia Pty Ltd Code of Conduct (issued 31 July 2006), which included the following provisions:
"2.2 All Employees have a responsibility to abide by the Company's Code of Conduct, and thereby all Corporate Policies and Procedures contained within this Manual…
…4.1.3 Staff will exercise particular care to ensure that their dealings with all prisoners/inmates, their friends and relatives, and any dealings with former prisoners/inmates, their friends and relatives are not open to abuse, misrepresentation or exploitation on either side…
Staff should be aware that the following violations of prescribed standards of behaviour may result in immediate dismissal:
4.3.16 Unprofessional conduct eg trafficking in money, prohibited drugs or alcohol or assault.
4.3.17 Inappropriate relationships with prisoners/inmates.
4.3.20 Serious breach of safety regulations which would endanger life or property, such as smoking in a non-smoking area." [19]
[44] In her oral evidence Ms Deep did not remember any conversation with the applicant in relation to the adequacy of his induction training.
[45] Under cross-examination Ms Deep confirmed that the applicant received induction training on his first day, plus a further program of training as part of his induction.
[46] Mr Derek Bullock, General Manager, Junee Correctional Centre, gave evidence by statement [20] and orally. It was his evidence that the applicant's probation period was due to conclude on 20 June 2006, while the applicant was on leave.
[47] According to Mr Bullock, on Tuesday, 27 June 2006, he was informed by Mr Karauria that three maintenance officers, Mr Splitt, Mr Lindsay and Mr McAuliffe had heard the telephone message left by the applicant. On receiving this information, Mr Bullock determined that the applicant's conduct was a breach of company policy, the Code of Conduct and constituted gross misconduct. This was regardless of whether the applicant had purchased the t-shirt, as he had indicated to the inmate that he would, at least, consider doing so. He had also compromised his subordinate, Ms Freer, by putting her in a position of participating in the breach.
[48] It was also Mr Bullock's evidence that the Summary Offences Act 1988 (NSW) makes it an offence for an employee in a correctional facility in NSW to bring, or attempt to bring anything into the facility without lawful authority. He stated that all employees are told this, orally and in writing at their induction into the Centre, as part of a document titled 'Contraband and Trafficking.' It states at page 40 "Nothing in and Nothing Out of the Correctional Centre! It must be Authorised." [21] Mr Bullock noted that Mr Paul Hocroft has brought cakes to the Centre to share with inmates and employees and had had the authority to do so.
[49] Mr Bullock claimed that, as an employer, the respondent had obligations under OHS legislation to maintain a safe working environment, and that any threat to security may be a breach of that law. He also claimed that discipline within a correctional facility is vital to maintaining the security of inmates and staff. It was his evidence that he had decided that, unless there were extenuating circumstances, he would not offer the applicant ongoing employment. The applicant provided no information indicating that any such circumstances existed. He then gave the applicant a letter advising of the decision to discontinue his employment. It was Mr Bullock's view that the applicant's conduct was so serious it was grounds for summary dismissal.
[50] On about 28 June 2006, Mr Bullock received an email from the applicant addressed to himself and to the Managing Director, Mr Bezuidenhout, seeking to appeal the decision not to offer him continuing employment. On 30 June 2006, he received a further email requesting a meeting, and another on 4 July 2006 seeking an appeal of the decision. It was Mr Bezuidenhout's decision that the applicant would be given a review of the decision, to be conducted by Mr John Myers, General Manager of Fulham Correctional Centre. On 12 July 2006, Mr Smith was sent a letter (by facsimile) notifying him of the hearing and indicating that it would be a disciplinary hearing. It was, however, properly characterised as an appeal as his employment had already been terminated. On 14 July 2006, Mr Myers conducted the appeal hearing. On 19 July 2006, Mr Myers sent the applicant a letter advising of the outcome and also advised Mr Bullock and Mr Bezuidenhout of the result.
[51] Under cross-examination Mr Bullock agreed that the applicant had a good work ethic and carried out what was required of him at the Centre. When determining that the applicant had breached company policy and the Code of Conduct Mr Bullock was sure that the applicant had spoken to the inmate and said that he would buy the t-shirt for him.
[52] Ms Sally Anne Freer, Administrative Services Officer, also filed a statement of evidence [22] in support of the respondent. She stated that in her position she provided administrative support to the applicant, who was her line manager.
[53] It was Ms Freer's evidence that at approximately 2.30pm on Tuesday, 20 June 2006, she was on the telephone when another call came through, which went through to the message bank. She checked the message and found it was from the applicant, who had said words to the effect of "Hi Sally, what's happening? I just want to find out what sort of jersey …[Inmate M] wants. Will call you later." [23] She thought the applicant was referring to 'Inmate M', an inmate, who was at that time employed in the maintenance area.
[54] At about 3.30pm on 20 June 2006, the maintenance team (Mr Lindsay, Mr McAuliffe and Mr Splitt) were in the office with Ms Freer discussing safety and security issues. The telephone rang and Ms Freer let it go through to the answering machine. She heard the applicant's voice say words to the effect of "Hi Sal, wanting to find out about the top for... [Inmate M] I'll call you again." [24] Ms Freer stated that she was upset and talked to the members of the maintenance team. She asked them to delete it as her name was on the message and she wanted no part of it. Mr Splitt said words to the effect of "Doesn't he realise that this is wrong and that is instant dismissal? What an idiot."[25]
[55] On Wednesday, 21 June 2006, at around 8.30am Ms Freer was in the workshop with Mr Lindsay, Mr McAuliffe, Mr Splitt and two inmates, 'Inmate O' and 'Inmate R'. Inmate O said something about Inmate M and words to the effect of "…[Immate M] is a whinger and he is trying to get you to get in contact with Justyn over some bloody jersey he wants." [26] She was concerned about this statement because it appeared that inmates other than Inmate M were also aware of what was going on and believed that she was involved. She claimed to have felt compromised. At approximately 9am that day Inmate M approached her and handed her a post-it note with the following words written on it 'Orange County jersey XL' and said words to the effect of "when you are next speaking to Justyn, can you please give him these details."[27] She was concerned as she felt compromised, given that she knew what the applicant was doing was wrong, and that the inmate believed she was a participant in the process.
[56] At approximately 9.30am the applicant called again and Ms Freer answered the telephone. During that conversation he said words to the effect of "how did you go getting the information on the top for… [Inmate M]?" She replied "Justyn are you aware of what you are doing, this isn't right and I don't want any part of this. Yes… [Inmate M] gave me the information and I am staying out of this. I want nothing to do with it, this isn't right." The applicant replied "so what sort of top does he want?" She replied "I am now destroying this and want nothing more to do with this." The applicant then said "I'll see how I go." [28]
[57] Prior to going home that afternoon Ms Freer spoke to Ms Deep, the Human Resources Manager, regarding the matter. The next day Ms Deep called her into a meeting with herself and Mr Karauria. Mr Bullock, the General Manager, later joined the meeting. During that meeting Ms Freer made 'full disclosure' of what had occurred over the previous two days.
[58] On Wednesday, 28 June 2006, Ms Deep informed Ms Freer that the applicant had been dismissed. Later that morning, Ms Freer checked her emails and found two from the applicant.
[59] Ms Freer denied the applicant's claim that she had given inmates additional ice-creams. She denied ever having given inmates ice-cream. She stated that she was asked by an inmate to photocopy a TV program and had refused to do so. The inmate had told her that the applicant had done it for him before, and she confirmed that his had happened with the applicant, who told her that it was fine to do so. She had agreed to photocopy the program on that occasion, but stated that she would not do so in the future.
[60] Under cross examination Ms Freer agreed that she had worked in a correctional facility for a period of 18 months to two years prior to her current position, and that she knew what "the wrong thing to do" was. [29]
[61] Mr Darren Lindsay, Electrical Technician at Junee Correctional Centre, filed a statement [30] to the effect that at the time he commenced work with the respondent, the applicant was the Facilities Manager and his line manager. He claimed that at some time on Tuesday, 20 June 2006, Ms Freer told him she had received a telephone call from the applicant in which he had asked her to find out the shirt or jumper size for an inmate, Inmate M. Ms Freer did not know what to do about the request, and knew it was wrong and against company policy. Later that afternoon he was in a meeting in Mr Smith's Office with Mr Splitt, Mr McAuliffe and Ms Freer. During the meeting the telephone rang in the office and the answering machine recorded a message. He recognised the voice of the applicant, who said, in part, "I still want… [Inmate M's] shirt size. Can you call me back?" Mr Splitt then said "doesn't [sic] you realise that this is wrong and instant dismissal, what an idiot." Ms Freer was upset and said words to the effect of "I don't want any part of this, my name has been used and I want it erased."[31]
[62] Mr Lindsay was surprised that the applicant had left the message as his experience of Inmate M was that he was "a smooth talker who is quite manipulative." [32]
[63] Mr Peter David Splitt, Carpenter, Junee Correctional Centre, stated that around 20 June 2006, he had attended a meeting in the applicant's office with Mr Lindsay, Mr Wayne McAuliffe and Ms Freer. During that meeting the telephone rang and went through to message bank. He recognised the applicant's voice leaving a message to this effect: "It's just Justyn here Sal, it's hot over here but we're having a great time. Can you check with… [Inmate M] for the size of his t-shirt?" [33] Ms Freer said words to the effect of "he's left my name and I don't want any part of it. I want the message erased." Mr Splitt then said "doesn't he realise that is wrong and instant dismissal. What an idiot."[34]
[64] It had been Mr Splitt's experience that it was common knowledge with staff at the Centre that employees of the Centre could not bring any item into the facility for an inmate without prior approval from either the Centre General Manager or the Managing Director.
[65] Under cross examination Mr Splitt stated that he had received part of his induction training when the respondent took over Siemens, and then had to go back and re-sit the rest of it a week or so afterwards. He agreed that he had not wanted to do the induction training because he had worked there for so long.
[66] Mr Wayne McAuliffe, Plumber, Junee Correctional Centre, also attended the meeting in the applicant's office on 20 June. He heard the message left by the applicant on the answering machine, to the effect of "Sal, I need to find out what size… [Inmate M] is." [35] Either Mr Splitt or Mr Lindsay then said words to the effect "doesn't he realise that it is wrong and instant dismissal, what an idiot."[36]
[67] Mr Dominic Karauria has been the Operations Manager, Junee Correctional Centre since 9 January 2006. It was his evidence that he conducted the Security Awareness Training for the applicant, from management's perspective, over a one hour period. This involved advising the applicant with respect to generic security issues and his role and responsibilities in assisting with the maintenance of security at the Centre and the safety of himself and other staff. Mr Karauria claimed that, in the course of this training, he made it clear to the applicant that anything brought into the Centre for himself, co-workers or inmates had to have the approval of the General Manager or Operations Manager, or it would be contraband.
[68] On Friday, 24 March 2006, Mr Karauria had a separate induction session with the applicant from 10.00am -12.00pm in the company of Mr Peter McDermott. This was an overview of the Operations Department. He specifically recalled talking about the need to maintain professional relationships, which included a general discussion about manipulative inmates. He advised the applicant that if there were any concerns with the inmates he needed to advise him as soon as possible to seek clarification.
[69] On Thursday, 22 June 2006, Ms Deep approached Mr Karauria to advise that Ms Freer had a security issue to bring to his attention. He met with Ms Freer and Ms Deep to discuss the issue. Ms Deep outlined the information she obtained from Ms Freer, including:
[70] Mr Bullock joined the conversation part way through the meeting and at the conclusion instructed Mr Karauria to arrange for an investigation to be done.
[71] Mr Karauria had separate discussions with each of the three maintenance officers, who confirmed Ms Freer's information.
[72] On 28 June 2006, the applicant returned to work and was told to attend a meeting in Mr Bullock's office to address a serious matter. At that meeting Mr Karauria told the applicant that he had been informed that the applicant intended to purchase a jumper in the US for inmate M. The applicant told him that Inmate M had asked for the t-shirt, and that he had told him "not to be stupid, that he wasn't going to purchase anything for him", [37] and then that he was going to buy the t-shirt, but on reflection decided not to do it. The applicant also said that he had then called Ms Freer back and told her not to worry about getting the information from Inmate M.
[73] In that meeting Mr Bullock told the applicant that his employment would not be continued, and handed the applicant a letter advising of the decision. As Mr Karauria walked the applicant to the gate after the meeting, the applicant asked if he had a right of appeal. Mr Karauria had responded that the applicant needed to think carefully about his actions, and that if he wanted to take it further he should make a submission in writing to the General Manager.
[74] It was Mr Karauria's evidence that the applicant's conduct constituted a serious breach of security given that it indicated to inmates that a staff member could be compromised by an inmate through manipulation. The applicant had also exacerbated the situation by compromising his subordinate, Ms Freer, by asking her to participate in the conduct. The actions were also an OHS risk, endangering the safety and well being of Ms Freer and the professional integrity of all staff at the Centre. It also undermined his trust in the applicant to the extent that he would find it very difficult to have that trust restored.
[75] Mr Karauria subsequently received a call from the applicant asking if there was anything he could do to get his job back as he felt he had not been treated fairly, and if he could write to the General Manager or Managing Director. Mr Karauria told the applicant anyone could do so. Formal interviews were then conducted, and statements taken from the three maintenance staff by the Intelligence Manager, Mr Russell McAuliffe.
[76] Under cross-examination Mr Karauria agreed that he had met with the applicant for only one hour rather than two on Friday, 24 March as part of the applicant's induction. As the applicant was in a senior management position it was determined that his induction training with respect to security awareness and inmate manipulation required more inter-departmental training by senior managers, in addition to the training provided by Mr Da Roit. Mr Karauria stated that custodial staff undertook correctional officer training for eight weeks, and that non-custodial staff go through the security awareness training for a day and then follow up with refresher training, depending on the position held. He thought the training provided to non-custodial staff was reasonable, depending on the position held and the fact that there are people to provide advice and on-going training on the job as a further resource.
[77] Mr Karuaria agreed that the applicant's work standards in the position were very good, and stated that the applicant had contributed in the best possible way he could to the job he held. He conceded that he had praised the applicant in management meetings in front of other staff.
[78] A statement made by Mr John Myers, General Manager, Fulham Correctional Centre was tendered in evidence. He was not required for cross-examination**.** Mr Myers was requested by the General Manager at Junee Correctional Centre to conduct an appeal hearing in relation to the termination of the applicant's employment. He was given a copy of the statements taken from other employees. On 14 July 2006, he attended the Centre and conducted the appeal hearing. During that hearing the applicant admitted that he had telephoned Ms Freer requesting her to provide him with the details of a t-shirt an inmate wanted him to purchase in the United States. Mr Myers reviewed the material available to him and formed the opinion that the applicant had breached the respondent's Code of Conduct by allowing an inmate to manipulate him, and that he had put his subordinate, Ms Freer, in a difficult position by involving her. Mr Myers also determined that the applicant had put himself in a position where further manipulation and unethical and possibly illegal behaviour would occur in the future. He also determined that trust within the Centre management team had broken down as a result of the applicant's actions and was unlikely to be restored. On 19 July 2006, he forwarded a letter to the applicant advising him that he had upheld the decision to terminate his employment, and the reasons for his decision.
[79] The applicant's submissions consisted largely of a reiteration of his evidence. He claimed that his induction training was inadequate and that neither Mr Da Roit, nor the Workbook, put appropriate stress on the subject of 'inmate manipulation.' He also claimed that he had been given neither the time nor the opportunity to adequately peruse the documentation provided at induction.
[80] It was the applicant's submission that his employment had been terminated for "thinking about doing something" that he "did not follow through with." [38] He also submitted that the Commission should place little weight on the evidence provided in the statements filed by the respondent as they were 'carbon copies' of each other and not written in the words of the people whose statements they were.
[81] The applicant argued that the termination of his employment for gross misconduct was harsh, unjust and unreasonable. He submitted that his actions did not fall within the examples of gross misconduct outlined in the GEO Handbook Code of Conduct, specifically paragraph 4.3.16 regarding unprofessional conduct. He put that he had not trafficked in money, drugs, or alcohol or assaulted anyone. He submitted that there was absolutely no unprofessional conduct on his part because he did not buy the t-shirt.
[82] Referring to paragraph 4.3.17 of the Code of Conduct the applicant noted that he had not established a relationship of any kind with an inmate. He submitted that he had directly rejected Inmate M's request for the t-shirt.
[83] The applicant referred to the test of whether there it a valid reason for termination of employment for gross misconduct as outlined in the decision of Commissioner Lewin in Finning v Linfox Armaguard. [39] This test involves consideration of the element of cognisance and awareness on the part of the applicant in the act of misconduct. The applicant submitted that this means a conscious decision is made to conduct oneself and then act on that decision knowing that it was the wrong thing to do. The applicant stated that he had thought about buying the t-shirt at one point, but he had not gone ahead and bought it. He stated that he had realised it was wrong when it was pointed out to him by Ms Freer. The applicant submitted that, in this light, there was no act of misconduct, and he had been terminated for only thinking about doing something.
[84] On that basis it was submitted that there was no valid reason to terminate his employment, using the definition of a valid reason in Selvachandran v Peteron Plastics [40]of a sound, defensible and a well founded reason. Further, it was stated in the matter of Habchi v City of Melbourne[41] that a reason is not valid if the conduct alleged did not occur, or even if it did, if it did not justify termination. Further, the applicant considered that his termination was harsh and disproportionate in its consequences for his personal and economic situation.
[85] It was noted by the respondent that at the time the applicant took leave from Monday, 12 June 2006, to Monday, 28 June 2006, his permanent employment had not been confirmed, as his probationary period had not concluded.
[86] The respondent submitted that the applicant's conduct compromised himself, his subordinate, his position of authority with inmates, and therefore the security of the Centre. It had seriously undermined the trust of his senior managers in him, a matter which is fundamental to the safe and secure operation of a correctional facility. It was also submitted that at no time did the applicant telephone Ms Freer and tell her not to worry about getting information from Inmate M, as he had claimed in his initial meeting with Mr Bullock to discuss the issue.
[87] The evidence before the Commission, including under cross-examination by the applicant, was that the training provided to the applicant as a person in a senior management position was distinct from that provided to custodial staff because, in part, of the responsibilities custodial staff have towards maintaining security minute by minute in a correctional facility. Mr Karauria, who has extensive corrections experience, was questioned as to the effectiveness or the suitability of the training provided and his evidence, under cross-examination, was that it was appropriate and relevant and that it consisted of more than the initial induction training. It was submitted that the training record annexed to Ms Deep's witness statement showed that on the applicant's first day the induction training lasted for five and a half hours, and that ongoing training followed.
[88] The applicant was in a senior manager's position and was responsible for doing what was required to ensure he was capable of performing his job, and his employer was entitled to expect that he would do so. As a supervisor he was required to know his own obligations and those of his subordinates. He was given the opportunity to inform himself through the Employee Handbook. He had signed a letter of appointment agreeing to abide by the policies and procedures of the employer, and was obliged to do so. Part of this obligation was to be aware of the policies and procedures and to ask for further information if that were necessary.
[89] Under cross-examination the applicant agreed about the contents of the training videos, and that the videos clearly went to issues relevant to him. The first video concerned security, keys, being aware of surroundings and inmates, and being thorough. The second focused on manipulation of workers by inmates. All of these issues were relevant to the applicant. If he did not believe they were relevant, and Mr Da Roit could not enlighten him, he had an obligation to ask more senior managers. He had failed to do so. It was the respondent's submission that the applicant knew his obligations, and was given every opportunity by the company to know them.
[90] It was submitted for the respondent that the applicant had given a number of accounts about what occurred. In an email to Ms Freer on 28 June 2006 he stated "I never once was going to buy anything for any inmate in the Centre." [42] It was submitted that this was not true because he at least thought of doing so. The applicant explained this by saying he did not want to upset Ms Freer any further, but the respondent submitted that it was instead a statement of intent. The applicant also changed his mind in his written submissions, documents and evidence about the number of phone calls he made to Ms Freer and when he made them and so on.
[91] In fact, the applicant left a message at about 2.30 on Tuesday, 20 June 2006, on the answering machine for Ms Freer asking, among other things, for her to find out what sort of jersey Inmate M wanted. Approximately one hour later there was another message heard by three maintenance workers and Ms Freer. Ms Freer was the applicant's direct subordinate and a new employee to the Centre. She gave unchallenged evidence that the following morning, Tuesday, before she received the phone call from the applicant, another inmate commented to her about the fact that Inmate M had her getting information to the applicant. Inmate M then approached Ms Freer to give her the information.
[92] Contrary to the applicant's submissions, Mr Bullock's evidence was that it was his belief, from the evidence with which he had been provided, that the applicant had communicated with Inmate M agreeing to buy the t-shirt. Inmate M knew from somewhere that the applicant was proposing to buy him the t-shirt because he gave the size information to Ms Freer. It was submitted for the respondent that none of the four workers who heard the message from the applicant had had that conversation with Inmate M, and they were the only people that heard the message. It is open for the inference to be drawn that there had been some arrangement entered into between the applicant and Inmate M. In any event, at least two inmates knew that there was some arrangement being entered into, or had been entered into, to purchase the t-shirt, and there were at least two inmates who knew that Ms Freer had become a participant. The applicant had therefore compromised himself and his integrity as a Centre employee, and had also compromised Ms Freer.
[93] The applicant's training clearly covered different means of manipulation by inmates. Manipulation includes more than being 'stood over', as was clear from the second video the applicant admitted to watching, in which a nurse gave an inmate two Panadeine against policy to try to help him and ended up losing their job. It was the respondent's submission that diligence is required in a prison facility as it is a special type of workplace that requires special conditions and much greater levels of propriety from employees in order to maintain security and meet public expectations.
[94] It was put for the respondent that the applicant still did not understand that he did anything wrong, and failed to see what occurred was manipulation by an inmate or that there was a problem in compromising Ms Freer as he did. The reason for the dismissal was not that the applicant had bought a t-shirt, as he had not, but that the applicant engaged in conduct that demonstrated an inappropriate relationship with an inmate. The applicant improperly gave special attention to one inmate. The applicant tried to compare his actions to Mr Hocroft bringing in cakes for inmates even though he acknowledged that Mr Hocroft had had the necessary authority. It was also noted that the applicant did not challenge Ms Freer's denial that she gave ice-creams to inmates.
[95] So far as the authorities raised by the applicant were concerned, the respondent submitted that the decision in Habchi provided no support for the applicant's situation. That decision notes that affording procedural fairness is relevant to whether a termination is harsh, unjust or unreasonable but is only one factor to be considered. The intention is that undue weight will not be given to procedural defects in a termination. The facts in the Habchi case were very different as the applicant had been employed by the respondent for 16 years. It was submitted that, in this matter, the applicant's permanent employment had not been confirmed as he was on leave at the expiration of the probationary period. His probationary period was due to conclude on 20 June 2006. The applicant returned to work on 28 June 2006. It was put that 28 June was the first opportunity the respondent had to confirm the employment, thus the probationary period had not concluded. Given those circumstances, the respondent submitted that the Commission should dismiss the application.
[96] In the alternative, it was submitted that there was a valid reason for termination. The respondent referred to the decision in Selvachandran v Peteron Plastics Pty Ltd [43] as accepted authority for the proposition that a valid reason for a termination is one that is sound, defensible and well founded, whereas a reason that is capricious, fanciful, spiteful or prejudicial could never be a valid reason. According to the respondent the evidence would lead the Commission to the finding that the respondent had a valid reason for the termination of employment because of the serious breach of discipline and the conduct of the applicant. The breach was not constituted by his bringing a t-shirt into the prison, but by his actions in entering into an arrangement with an inmate to purchase a t-shirt in the United States, and by including Ms Freer, not by her choice, in that arrangement, thus compromising her position both as an employee and as a person working in a correctional facility.
[97] It was submitted that, while there was contesting evidence between Ms Freer and the applicant with respect to the ice-creams and photocopying issues, it was not put to Ms Freer that her evidence was false on either issue. It was put that Ms Freer's evidence should be preferred as she has nothing to gain from this process or by not telling the truth. Further, it was contended that the applicant is an unreliable witness given his proclivity for denial, not remembering, and confusion. That the applicant had attempted to deflect responsibility to his co-workers suggests that he is unable or unwilling to face up to and acknowledge his own responsibilities and failure. The evidence before the Commission is that the applicant was not completely truthful in his meeting with Mr Karauria and Mr Bullock, nor his subsequent communications with Ms Freer.
[98] According to the respondent's submissions the applicant lacked insight into the seriousness of his conduct and how it breached the respondent's Code of Conduct and compromised others. The respondent, and the Commission, could have little comfort that he doesn't pose, and did not pose, a risk from a security perspective in the Centre. The applicant had attempted to minimise his actions and responsibilities by claiming that he had instructed Ms Freer not to let anyone into his office. In his letter of 28 June he stated that if the three workers had not been in his office and heard the answering machine there wouldn't be a problem. The applicant did not understand that the problem was that the applicant had made the phone call, not that others had heard it.
[99] Mr Bullock had taken the view that the applicant's probation period had not concluded, and that he was not going to confirm his permanent employment. Mr Bullock gave the applicant the opportunity to put his side of the story to him before he was given the letter of termination which had been prepared prior to the meeting. Mr Bullock's unchallenged evidence was that the applicant provided no information that would ease his mind about what had happened, and provided no information to mitigate the evidence collected to that point. In addition, the applicant was given a further appeal hearing, having been notified by letter of the specific breaches of discipline or policy. The applicant was, therefore, given a full opportunity to respond to the specific reasons for his termination, in addition to the opportunity given to him in the 28 June meeting.
[100] Finally it was submitted that there was a valid reason for terminating the applicant's employment, it was not harsh, unjust or unreasonable in all the circumstances and the Commission ought to dismiss the application. It was put that there is a vital public interest in the maintenance of high standards of propriety and security within a correctional facility. It was also submitted that the respondent has an obligation to ensure minimisation of security and propriety risks surpassing the ordinary obligations of the vast majority of employers.
[101] Section 652 of the Workplace Relations Act 1996 provides as follows:
(a)�the Commission has issued a certificate under subsection 650(2) regarding conciliation of an application relating to a termination of employment; and
(b)�the applicant has made an election under subsection 651(1), (2), (3) or (5) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable;
the Commission may so proceed to arbitrate the matter.
(2)�Neither the making of an election under subsection 651(1), (2), (3) or (5) to proceed to arbitration nor the commencement of that arbitration prevents further conciliation of the matter being attempted, or the parties from settling the matter, at any time before an order is made under section�654.
(3)�In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a)�whether there was a valid reason for the termination related to the employee's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b)�whether the employee was notified of that reason; and
(c)�whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d)�if the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination; and
(e)�the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(f)�the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(g)�any other matters that the Commission considers relevant."
Whether there was a valid reason for the termination related to the employee's capacity or conduct (including its effect on the safety and welfare of other employees)
[102] The applicant was a member of the senior management team at the Centre. On the evidence given concerning the content of the induction training with which he was provided upon employment, I am satisfied that the applicant should have known that it was improper for him to consider complying with an inmate's request for a favour of any description.
[103] The applicant's evidence was such that it is not clear that the applicant actually understood the improper nature of his actions at the time or even at the time of the hearing. If the applicant was unaware of his obligations concerning 'manipulation' by inmates I am unable to conclude that it was the fault of the training provided by the employer.
[104] The applicant also acknowledged that he had watched another (Australian) video on the topic of manipulation by inmates, and that that video discussed how easy it was to be manipulated by inmates. Although he said that the videos impacted on him "a little bit", he claimed that they 'didn't sink in' because he didn't understand how important it was, and he was just more excited about his new position. [44] It is clear that the applicant did not appreciate the importance of the security training he was given. His explanation of his understanding of what was meant by 'manipulation' was indicative of how little any of the training he received impacted on him. He did not appear to understand that manipulation could mean something other than being 'stood over' or threatened by an inmate. He denied that he had been manipulated by Inmate M.
[105] Whether or not the applicant understood what he did was wrong, it is apparent from the evidence of Mr Karauria that his conduct was a serious breach of security as it indicated to inmates that the applicant could be compromised by an inmate through manipulation. I accept Mr Karauria's evidence that the situation was exacerbated as the applicant compromised Ms Freer by having her participate in the conduct. Mr Karauria characterised the applicant's actions as an OHS risk which could have endangered the safety and well being of Ms Freer and the professional integrity of all staff at the Centre. It was clear that Mr Karauria's trust in the applicant had been undermined to an extent that would be difficult to restore.
[106] The applicant should have been aware that his conduct constituted a serious breach of the respondent's policies in relation to interaction between staff and inmates. The evidence was that the Ms Freer and witnesses Mr McAuliffe, Mr Splitt and Mr Lindsay were immediately aware of the seriousness of the applicant's actions.
Whether the employee was notified of that reason
[107] The applicant was notified of the reasons for his dismissal on the morning of his return to work. In his meeting with Mr Bullock and Mr Kauraria the applicant maintained his position that he had done nothing wrong as he did not, in fact, buy the t-shirt for the inmate. He was advised by his managers that his intent was sufficient to put the security of the Centre, and the staff, under threat. Given that the applicant appeared not to appreciate the ramifications of his conduct at the hearing of this matter, it is unlikely that any fuller explanation given on the morning of his dismissal would have increased his understanding of the reasons for the termination of his employment.
[108] The applicant was also given a letter setting out the reasons for his dismissal, but claimed that the terms of the letter of termination did not make clear the actual reasons for his dismissal. I am satisfied that the applicant was made aware of the reason for his dismissal. Unfortunately the applicant did not understand why his conduct was viewed with such seriousness by his employer, but I am unable to determine that his lack of understanding was due to any deficiency on the part of the employer.
Whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee
[109] It is apparent on the evidence that the applicant was upset by the meeting held on 28 June 2006 with Mr Bullock and Mr Karauria that brought about his dismissal. He was not in a position to give a considered response to the allegations about his conduct at that time. He was, however, given another chance to respond in relation to the reasons for his dismissal when granted an independent review of the decision. At that review, conducted by Mr Myers, he was given every opportunity to put his version of the events and any mitigating circumstances. He was also given the opportunity to call witnesses, although he did not avail himself of the opportunity. At the time the review hearing took place the applicant had had over two weeks to reflect upon the reasons for his dismissal and prepare any matters he might wish to have considered.
If the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination
[110] The applicant's employment was not terminated for any reason connected with unsatisfactory performance. The evidence was that during the period of employment he performed the tasks required of him to the satisfaction of his managers.
The degree to which the size of the employer's undertaking, establishment or service would
be likely to impact on the procedures followed in effecting the termination
[111] According to the respondent's Employee Handbook which was tendered in evidence, the respondent is "the largest provider of private correctional services in Australia." [45] There was no suggestion that the size of the undertaking was in any way likely to impact on the procedures followed in effecting the termination.
The degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination
[112] Ms Deep, a witness in these proceedings, holds the position of the Human Resource Manager for the Centre. It would appear, therefore, that this criterion is of limited, if any, relevance.
�Any other matters that the Commission considers relevant
[113] I have taken into account the applicant's relatively short employment history with the respondent. He was only one week past his three month probation period at the time of the termination. Had he not been on leave and out of the country when his conduct came to the notice of management it is likely that the termination would have occurred during the probationary period.
[114] Another matter that is relevant is the nature of the position held by the applicant. As a relatively senior manager in a prison environment his conduct could have had serious consequences. The fact that he appeared not to appreciate the reason why the employer put such an emphasis on manipulation of prison staff by inmates is of great concern. His explanation of his understanding of manipulation was also a problem as he understood it only to involve intimidation or threats. The employer made a reasonable effort to ensure the applicant understood the dangers of developing any type of relationship with the inmates. The applicant, by his own admission, could not see the relevance of the videos shown to him, was too excited about his new job to take much notice and made no effort to better inform himself.
[115] I am unable, in light of all the evidence in this matter, to conclude that the termination of the applicant's employment was harsh, unjust or unreasonable. The applicant committed a serious breach of the respondent's Code of Conduct and policies. He failed to keep a totally professional relationship with an inmate and allowed himself to be manipulated. Even though the applicant did not commit the breaches in full knowledge that his conduct constituted breaches the fact remains that he was given every opportunity to acquaint himself with the standards of conduct expected by the employer and failed to do so. In the circumstances, and given the importance of maintaining security in the prison environment, the employer had very little option but to remove an employee who had placed the security of the prison under threat. The fact that the employee failed to understand why his conduct constituted such a serious threat to the prison was an additional reason for his employment to be terminated. The applicant's naivety was dangerous in the prison environment.
[116] The termination of the applicant's employment was not harsh, unjust or unreasonable. The application is dismissed.
This means: an attempt to control or influence another person to get something wanted or needed.
The most likely targets, especially of long term manipulation, are personnel who:
Rules to help you avoid possible manipulation
Everyone is susceptible to manipulation by others.
Printed by authority of the Commonwealth Government Printer
[18] Exhibit GEO 3, Attachment AD2.
[19] Exhibit GEO 3, Attachment AD3.
[21] Exhibit GEO 4, Attachment DB1.
[38] Transcript at PN1135 and at PN1141.
Justyn Smith
GEO Group Australia Pty Ltd [2007] AIRC 128;