On 25 April 2022 the appellant was involved in a workplace incident, following which he was subjected to disciplinary action by the respondent in the form of a demotion in rank from Principal Correctional Officer ("PCO") to Senior Correctional Officer on and from 14 February 2023 (the "Demotion").
The appellant on 23 February 2023 filed a Notice of Appeal - Public Sector Discipline on (the "Appeal") pursuant to s 100A of the Industrial Relations Act 1996 (NSW) (the "IR Act").
[2]
APPROACH
The correct approach in the determination of appeals made under Part 7 of the IR Act was set out by the Court of Appeal in Marroun v State Transit Authority [2017] NSWCA 273 set out, which is:
1. It is an appeal by way of fresh hearing, in that the Commission stands in the shoes of the original decision-maker;
2. the Commission is required to consider whether the written allegation of misconduct is made out and constitutes misconduct for the purposes of ss 69(1) of the Government Sector Employment Act 2013 ((NSW) (the "GSE Act"),
3. if the Commission does not find that the alleged misconduct is made out, then the appeal is allowed; and
4. if misconduct is made out, the Commission is required to determine whether the disciplinary action is appropriate or should it be some lesser form of disciplinary action.
In this matter, the appellant submits that the Commission is required to consider all of the words in the allegation and if they are not all made out, then the allegation as a whole fails.
Unsurprisingly, the respondent opposed that submission and submitted that the Commission could find that some but not all particulars of an allegation are not made out and then determine what level of disciplinary action is appropriate.
Both parties referred to the following observation of the Court of Appeal in Marroun at paragraph [62]:
To state the matter affirmatively, the Commissioner was required to determine whether the allegation made in writing, in accordance with cl 30 of the Regulation, had been proven to his satisfaction. If it had not, he was obliged to allow the appeal. If he considered that any of the particulars were established, he would have had to address whether some lesser form of disciplinary action was appropriate. Neither of those tasks was undertaken.
The above passage quite clearly envisages a circumstance where a member of the Commission undertaking the exercise of determining the written allegation may find that part of it is made out and then is required to determine whether there is any disciplinary action is appropriate. Thus the appellant's submission on this issue fails.
In relation to misconduct for the purpose of s 69 of the Government Sector Employment Act 2013 (NSW) (the "GSE" Act"), this can include a contravention of the policy, code of conduct or legislative instrument might constitute misconduct. However, whether it does constitute misconduct will depend on the level of seriousness of the breach. See cases such as Eastwood v Industrial Relations Secretary on behalf of Department of Communities and Justice [2021] NSWIRComm 1014, Allison v Commissioner of Police [2018] NSWIRComm 1005 and Lusty v Industrial Relations Secretary on behalf of Department of Communities and Justice [2023] NSWIRComm 1016.
Also, misconduct does not extend to mere mistakes, errors in judgment or in the exercise of discretion. See McDiarmid v Commissioner of Police [2012] NSWIRCom 100 (McDiarmid") in which he adopts the decision of Kirby J in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200-201 and Lusty v Industrial Relations Secretary on behalf of Department of Communities and Justice [2023] NSWIRComm 1016.
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THE ALLEGED MISCONDUCT
The disciplinary action, being the Demotion was in relation to misconduct of the appellant, that the respondent determined arose from the events of 25 April 2022.
Now before I turn to each of the allegations, it is important to note that the appellant accepts that his actions, on 25 April 2022, in certain respects, constitutes misconduct for the purpose of the GSE Act. So much can be inferred from the appellant's submissions in that he seeks an alternative disciplinary action of:
1. Reversal of the Demotion and provision of a final warning; or
2. The Demotion being limited to six months.
What is not clear is what misconduct is admitted by the appellant.
I now turn to each of the allegations.
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Allegation 1
The first allegation is:
Principal Correctional Officer Brett Olliffe of John Morony Correctional Centre. used offensive and insulting language, whilst on duty, towards Senior Correctional Officer Jeffrey Player on 25 April 2022, by using words to the effect of:
1. "You are a gutless fucking coward."
2. "You can fucking write me up."
The appellant, at different points, in submissions and in his response to the respondent in the investigation and in his evidence-in-chief, admits using offensive, and on other occasions insulting language with respect to allegation one.
The appellant admits saying fuck but denies using the words attributed to him in the allegations.
He admits using the word, "fuck", but denies using it in the form set out in the allegation.
As to the first, I am not satisfied this was said. The only record of this from the four other officers who were present at the time the incident occurred was in a written document attributed to a Mr Kearney, who has not been made available for cross-examination. I do not give that written document any weight at all.
I am further comforted by this in not accepting that finding, as it is inconsistent with other evidence of words of a similar nature being used. That word being, "gutless", which was evidence that fell from a Mr English. Not only did he not identify that the word, "fucking", was used, he also stated that the word, "gutless", being said at a different stage to that given in the document attributed to Mr Kearney.
As to the second word, I am satisfied that the appellant did say, "Fuckin' write me up". I firstly note the direct evidence of Mr Player on this point and I also note that the appellant cannot recall exactly what he said. But he did admit to using the words, "fuck", in those circumstances. I accept the evidence of Mr Player.
Given the approach as set out above, I find that at least one particular is made out and is sufficient to satisfy the allegations being made out, particularly when one has regards to the actions of the appellant, as a whole, as set out in the video.
[5]
Allegation 2
The second allegation is:
Principal Correctional Officer Brett Olliffe of John Morony Correctional Centre struck Senior Correctional Officer Jeffrey Player across the left side of his head, being an act of violence, whilst on duty on 25 April 2022
The appellant admits that his hand connected with Mr Player's head, but denies that he intended to do so. He does go so far as to say he did strike Mr Player, in terms of cross-examination. That he did strike Mr Player, or his hand did come into contact with Mr Player's head, as evidenced by the blood that was said to appear on Mr Player's ear, albeit a minor amount of blood and there was evidence as to blood thinners being taken by Mr Player. What role that has in terms of the amount of blood or not, one cannot be certain.
I am not satisfied that the appellant intended to strike Mr Player. There was of course, a better way to undertake what the appellant said he was trying to do, which was to knock the hat off. For example, it was put to him a number of times in cross-examination, he could have flipped the cap.
However, in the way that the appellant set about doing what he said he was doing, he was reckless as to the consequences of his actions. It was, in any view, violent action. However, given the reactions of those present, immediately following and during the course of it, including Mr Player himself, I find that it is at the lower level.
It is misconduct for the purposes of the GSE Act but it is at a lower level. Had the appellant not been in an agitated mood, however, it could be seen as skylarking, at best. However, it was, when viewed in the context of the video, a violent act.
[6]
Allegation 3
The third allegation 3 is:
Principal Correctional Officer Brett Olliffe of John Morony Correctional Centre failed to act professionally and failed to treat his colleagues with dignity and respect, when he threw a boxed radio in an aggressive manner with force towards Senior Correctional Officer Jeffrey Player, Correctional Officer James English, Correctional Officer Salesh Jay and Correctional Officer Kyle Kearney on 25 April 2022.
Now the appellant has, and rightly so, admits that he threw the radio. The video is clear, it speaks for itself. It was aggressive and had some force, particularly given the distance that the radio travelled. Albeit, it did not hit anyone and it does not appear from the video footage, that it was intended to do so.
However, it was unprofessional and I am satisfied that the allegation is made out and it constitutes misconduct.
[7]
Allegation 4
The fourth allegation is:
Principal Correctional Officer (PCO) Brett Olliffe of John Morony Correctional Centre made a false and/or misleading statement in his report dated 28 April 2022, regarding an incident involving Senior Correctional Officer (SCO) Jeffrey Player on 25 April 2022, specifically:
1. PCO Olliffe failed to mention that he used offensive and insulting language towards SCO Player and omitted that he threw a radio at SCO Player, Correctional Officer (CO) James English, CO Salesh Jay and CO Kyle Kearney from his report; and
2. PCO Olliffe stated that he tried to knock SCO Player's hat off when he knew this to be false
An explanation was given by the appellant that he gave a version on the issue he thought he was required to give.
That version was given after watching the video, where the throwing of the box with the radio was clearly evident and if one has regard to the email of Mr Lees, of 27 April 2022 and in particular I note the third paragraph, in which Mr Lees sets out the purposes of the meeting was:
I explained that the purpose of the meeting was regarding the incident which occurred on Monday 25 April. I showed you CCTV footage which indicates that you had struck SCO Player in the compound area of the centre. At this point I told you that I would need a report off you in regards what happened regarding the incident.
Given that email, I accept that the applicant was of the view that what he was required to do was give a report about the striking of Mr Player. I do not find that the appellant lied in giving his report, nor did he set out to mislead in his report of 28 April 2022.
I therefore find that allegation four is not made out.
[8]
Discipline
Turning to disciplinary action, I note the applicant's otherwise unblemished record.
I note that his performance of his role, whilst in the demoted position, acting up and to a higher level, there is no evidence of any actions which are consistent with that that took place on April 2022.
I note the personal circumstances facing the appellant at the time. That included serious health issues concerning his daughter.
I also note the applicant's contrition at all times since the incident and I also note the respondent's concerns regarding that the acts of the appellant are inconsistent with the role that he was in at the time, in particular some of the key accountabilities.
I have also considered the respondent's submissions concerning the capacity for the appellant to return to the role and be tested after acting up in the role. Though, I further note that the appellant has already done this.
The actions of the appellant were unacceptable, but I accept that it was a one-off and he has sought assistance with dealing with the issues that faced him at the time and how to control similar situations in an appropriate manner.
Taking into consideration all the foregoing factors, I find that the appeal is successful in part and the appropriate disciplinary action is:
1. Provision of a reprimand pursuant to ss 69(4)(g) of the Government Sector Employment Act 2013 (NSW); and
2. The reduction in rank from Principal Correction Officer to Senior Correctional Officer is limited to a period of six months from the date in which it occurred.
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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: 11 August 2023
Parties
Applicant/Plaintiff:
Olliffe
Respondent/Defendant:
Industrial Relations Secretary, in respect of the Department of Communities and Justice