This is an appeal under Part 7 of the Industrial Relations Act 1996 ('the Act') brought by Mr Florencio Santos against the disciplinary decision of the respondent to reduce him in rank. Such a decision is an appealable decision within the meaning of s. 97(1)(b) of the Act. The appeal was brought within the statutory time limit.
Mr Santos, who works at Long Bay Prison Hospital No. 1, was subjected to the disciplinary sanction of reduction in rank from the rank of Senior Correctional Officer to First Class Correction Officer Year 2. That is one step in rank, although the difference between being a senior and being a correctional officer is in terms of responsibility and duty is a large one. That sanction was imposed for reason of two matters, the essential facts of which are not seriously in dispute.
[2]
Applicable law
I turn first to the law within which this matter falls to be determined. A hearing of this kind is a hearing de novo, as s 100C(2) of the Act provides. The jurisdiction the Commission exercises in a matter of this kind is one which is protective of the Public Service, of public servants and of the public: Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523.
The Commission is not limited in an appeal of this sort only to the specific allegations of misconduct upon which the punishment was based, but is to have regard to all the surrounding circumstances. So much is uncontroversial. I have earlier, in Bindley v Secretary, Industrial Relations for Corrective Services NSW [2017] NSWIRComm 1026, expressed doubts about the correctness of the further propositions advanced in the decision of the Commission in Court Session in Secretary, Department of Justice v Schoeman (2014) 86 NSWLR 749, while noting that they are binding on me. This appeal does not require those further propositions to be traversed.
Certain provisions of the Crimes (Administration of Sentences) Regulation 2014 are also relevant to this appeal.
That Regulation gives, at regulation 100, the governor of a correctional centre the power to direct that a visit to an inmate by a member of the public is to be a 'non-contact' visit, based on criteria set out in the regulation.
Importantly, regulation 242 provides as follows:
242 Compliance with Commissioner's instructions and governor's directions
(1) The governor of a correctional centre may give directions (not inconsistent with the Commissioner's instructions) with respect to the administration of the Act in relation to the centre, and must ensure that a record is kept of each direction.
(2) A correctional officer or departmental officer must comply with the Commissioner's instructions.
(3) While employed within a correctional centre, a correctional officer must obey all lawful directions given by the governor of the centre, whether given under this clause or otherwise.
(4) While on the premises of a correctional centre, a departmental officer must obey all lawful directions given by the governor of the centre, whether given under this clause or otherwise.
(5) For the purposes of taking any action under section 68 or 69 of the Government Sector Employment Act 2013, a correctional officer or departmental officer is to be presumed to be aware of the officer's obligations under the Act and this Regulation.
Regulation 251 provides:
251 Honesty
(1) A correctional officer, departmental officer, medical officer or nursing officer must at all times be honest and truthful.
(2) A correctional officer, departmental officer, medical officer or nursing officer:
(a) must not make any statement that the officer knows, or ought reasonably to know, is false or misleading in a material particular, and
(b) must not destroy or mutilate, or alter or erase any entry in, an official document.
Regulation 253 relevantly provides:
253 Reporting of misconduct by correctional officers
(1) If:
(a) an allegation is made to a correctional officer that another correctional officer has, while carrying out his or her duties as a correctional officer, engaged in conduct that, in the opinion of the officer to whom the allegation is made, constitutes a criminal offence or other misconduct, or
(b) a correctional officer sincerely believes that another correctional officer has engaged in conduct of that kind,
the correctional officer must report the conduct, or alleged conduct, to a correctional officer who is more senior in rank than the officer making the report.
Observance of these regulations by a correctional officer is of paramount importance. As the Commission observed in Bindley,
It is also absolutely necessary… that orders that are given in the line chain of command are obeyed. It is not open to officers in the chain of command to refuse to carry out a lawful order. The statement of duty says so. It is not open to an officer in the chain of command to refuse to carry out a lawful order even if, for example, that officer believes that the officer senior to him, giving that order, is acting contrary to policy or contrary to the way the recipient of the order believes the best manner of doing the work may be. There is an obligation to obey the order.
[3]
Facts
There were two sets of allegations of misconduct put to Mr Santos. Both were ultimately found proven against him. Those findings were correctly made.
The first set of allegations went to Mr Santos, in his capacity as a Senior Correctional Officer, twice, on consecutive days, failing to report an officer whom he saw deliberately sleeping or attempting to sleep on duty. Mr Santos was bound to report that matter, not least pursuant to regulation 253. He did not do so. He was not the only officer who saw the conduct; another more senior officer also witnessed it, but under the regulation Mr Santos had a personal obligation arising out of his position as a correctional officer to report the conduct. His failure to report it is properly characterised as misconduct.
The second set of allegations went to this: the governor had made directions, pursuant to his powers under regulation 100 of the Crimes (Administration of Sentences) Regulation 2014 and under s.53(1)(b) of the Crimes (Administration of Sentences) Act 1999, that particular inmates were to have non-contact visits. Mr Santos was supervising inmate visits on 25 April 2016. On that date - because, he says, he suspected an inmate was to be given contraband by a visitor - he permitted, contrary to the governor's direction, that inmate and his visitor to hug. In the course of doing that he permitted another inmate and his visitor also to hug. There was in fact an attempt to pass contraband to the first inmate; Mr Santos detected it, and it was prevented.
As to this matter, the fact that Mr Santos detected contraband and prevented its entry into the prison, although an appropriate result in itself, did not justify him in actively permitting disobedience of a governor's directive. Pursuant to regulation 242, a correctional officer must obey all lawful direction given by the governor of the centre. As Mr Fesel for the respondent correctly argued, it is not open to correctional officers to refuse to carry out a lawful direction or order given in the chain of command. It is vital for the good running of correctional centres that lawful directions are adhered to by correctional officers at all times.
I add that had Mr Santos not permitted physical contact as he did, it seems probable the contraband would not have entered the gaol anyway. The essential point however is that it is not open to correctional officers to act contrary to the governor's instructions, even if they think that they know better than the governor. Mr Santos' decision to permit contact in order to catch the passing of contraband, while it can be understood, was an error of judgment and it was misconduct on his part not to enforce the governor's direction.
It is also a relevant matter of fact that Mr Santos has been a correctional officer within NSW Corrective Services for 26 years and had, prior to the disciplinary sanction here appealed, held the rank of Senior Correctional Officer for 15 years. He has no previous disciplinary action on his record.
[4]
Consideration
It is apparent from the words of subs 100C(2) of the Act that an appeal before the Commission is an appeal de novo. That is to say, the Commission is to hear and determine the matter afresh on the materials before it, not simply review the decision of the initial decision-maker: Calman v Commissioner for Police (1999) 167 ALR 91.
The Commission may, in relation to a disciplinary appeal, allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. The Commission is therefore not constrained merely to accept or reject the initial decision, but can impose any decision it thinks fit. While the Act does not so provide in terms, the authorities lead me to conclude that the Commission's task is to determine whether the decision which was imposed is the correct or preferable decision in the circumstances.
There is no doubt that the two matters said to constitute misconduct on Mr Santos' part were misconduct. Disciplinary action was correctly imposed.
I observe, however, that a part of the reason that the sanction was imposed was that the decisionmaker formed the view that Mr Santos had been less than candid in his explanations of his conduct. Specifically, it was said that he had been less than honest because he had not, in his initial answers to the allegations, offered explanations in exculpation which he later advanced when represented by his association, the PSA. Mr Fesel correctly submitted that the issue of Mr Santos' honesty with his employer was a matter which must form part of the Commission's consideration.
However, while it is correct to say that that matter must be considered, I do not share the view that Mr Santos was less than honest. Even leaving aside his obligations under regulation 253, had I thought Mr Santos to have dealt with his employer less than honestly, that would in my view have acted to exclude him from any discretionary relief the Commission might otherwise consider: Marroun v State Transit Authority [2016] NSWIRComm 1003; Gilmore v Allied Express Transport Pty Ltd [2006] NSWIRComm 16. However, on my view of the evidence, Mr Santos in the first instance gave a short answer to the allegations, and then with the assistance of his association give further exculpatory reasons not incompatible with the short answers initially given.
I should also say that I formed the view that, observing Mr Santos giving his evidence before the Commission, and weighing the probable likelihood of that evidence, I came to the view that Mr Santos was a witness of truth. I am of course wary of forming views about the credit of witnesses from demeanour alone, being mindful of what was said by Kirby P in Chambers v Jobling (1986) 7 NSWLR 1 at 9, but my view of Mr Santos as a truthful witness is at least in part based on his demeanour in giving evidence.
[5]
Determination
Considering the matter de novo, as I am bound to do, I am firmly of the view that a disciplinary sanction was appropriate in Mr Santos' case. My obligation is to determine what is the correct and preferable sanction in the circumstances. As I say, I am not carrying out a review of the original decision, but coming to a fresh view.
In forming that view I take into account that there were two incidents of proven misconduct. In each case there is some explanation, but ultimately misconduct is misconduct, and misconduct attracts disciplinary sanctions.
I also take into account Mr Santos' very long period of service, including fifteen years as a Senior Correctional Officer, and the fact that he has no prior disciplinary record. I observe that after the incidents in question he carried out the duties of a Senior Correctional Officer without complaint for some further nine months before demotion. I further take into account the evidence of his work colleagues, particularly the evidence of his supervisor, Mr Tannous, about Mr Santos' qualities as a Senior Correctional Officer, though I ultimately have disregarded paragraphs 9 and 10 of Mr Tannous' statement.
Weighing those matters against the misconduct which undoubtedly occurred, I have formed the view that the correct and preferable decision is that Mr Santos be demoted from the rank of Senior Correctional Officer to the rank of First Class Correctional Officer Year 2 for a period of 2 years from the date of his demotion, following which period he is to be restored to the rank of Senior Correctional Officer at the incremental level he previously held. In that period he may well be asked to undergo appropriate training or refresher courses; that is a matter for Corrective Services.
The Orders that I make are therefore as follows:
1. The disciplinary appeal is upheld.
2. The decision to demote Mr Santos from the rank of Senior Correctional Officer to First Class Correctional Officer Year 2 is set aside.
3. The disciplinary penalty to be imposed on Mr Santos is that he is to be demoted from the rank of Senior Correctional Officer to the rank of First Class Correction Officer Year 2 for a period of 2 years from the date of his demotion, following which period he is to be restored to the rank of Senior Correctional Officer.
[6]
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Decision last updated: 11 August 2017
Parties
Applicant/Plaintiff:
Santos
Respondent/Defendant:
Secretary, Industrial Relations for Corrective Services NSW