Employee's Termination Upheld Due to Serious Misconduct

The Industrial Relations Commission upheld the termination of an employee's employment due to serious misconduct involving assault on a detainee in custody. The Commission found the employee's actions to be grossly inappropriate and disproportionate, despite provocation and personal circumstances.

OUTCOME: Dismissed

Industrial Relations Commission New South Wales Medium Neutral Citation: [NAME_1] v Industrial Relations Secretary, on behalf of [NAME_2] Department of Communities and Justice ([COMPANY_3]) [2020] [NAME_4] 1038 Hearing dates: 18 and 19 December 2019 Date of orders: 21 May 2020 Decision date: 21 May 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner [NAME_5] Decision: Appeal dismissed Catchwords: PUBLIC SECTOR DISCIPLINARY APPEAL – assault on detainee – serious misconduct – officer dismissed -disciplinary sanction warranted Legislation Cited: Government Sector Employment Act 2013 (NSW) Industrial Relations Act 1996 (NSW) Cases Cited: Maritime Services Board v Murray (1993) 52 IR 455 [NAME_6] v State Transit Authority (2017) 96 NSWLR 295 Rail Corporation of New South Wales v Elleray [2013] [NAME_4] 86 Secretary, Department of Justice v [NAME_7] (2014) 86 NSWLR 749 Category: Principal judgment Parties: [NAME_1] ([NAME_2] Appellant)

Industrial Relations Secretary, on behalf of [NAME_2] Department of Communities and Justice ([COMPANY_3])([NAME_2] Respondent) Representation: Counsel:

[redacted]

Solicitors:

[redacted]

[NAME_11] of [NAME_2] Association of New South Wales (for [NAME_2] Appellant)

[NAME_12] of [COMPANY_3] (for [NAME_2] Respondent) File Number(s): 2019/242628 Publication restriction: Nil

Judgment 1. [NAME_1] ([NAME_2] Appellant) was 53 years old and was working as a Senior Correctional Officer (SCO) in [NAME_2] Security Emergency Response Team at [NAME_2] Centre (MRRC) employed with [COMPANY_3] ([NAME_14]) when his employment was terminated on 12 August 2019. [NAME_2] Appellant's employment was terminated as a result of an assault upon a detainee in custody on 22 October 2017, which resulted in a criminal conviction.

2. Pursuant to section 50 of [NAME_2] Government Sector Employment Act 2013 (NSW) [NAME_2] ([NAME_2] Respondent) is taken to be [NAME_2] employer of [NAME_2] Appellant in these proceedings. 3. [NAME_2] Appellant has appealed [NAME_2] decision to terminate his employment pursuant to section 98 of [NAME_2] Act 1996 (NSW) ([NAME_2] Act).

4. I have decided for [NAME_2] reasons that follow that [NAME_2] Appellant's appeal from [NAME_2] decision to terminate his employment should be dismissed.

Background 1. [NAME_2] Appellant commenced his employment with [NAME_2] Respondent in 1993 working for NSW Juvenile Justice where he attained [NAME_2] position of Senior Youth Worker.

2. In 1995, [NAME_2] Appellant commenced employment with [NAME_14] as a Correctional Officer, initially posted to [NAME_2] [COMPANY_15] before being transferred in 1999 to [NAME_2] where he worked until his employment was terminated by [NAME_2] Respondent. 3. [NAME_2] assault involved [NAME_2] Appellant pushing [NAME_2] detainee against a wall twice and then proceeding to strike him 11 times in [NAME_2] head and upper torso. [NAME_2] details of [NAME_2] assault upon [NAME_2] detainee on 22 October 2017 are considered in further detail below. 4. [NAME_2] assault on 22 October 2017, [NAME_2] Appellant reported [NAME_2] incident to [NAME_2] Manager of Security, Senior Assistant Superintendent (SAS) [NAME_16], disclosing that he "lost [his] crap". [NAME_2] Appellant lodged a complaint with [NAME_2] about being spat at by [NAME_2] detainee, providing a notebook statement [NAME_2] day after [NAME_2] incident in which he makes no mention of his striking [NAME_2] detainee in response. 5. [NAME_2] detainee was attended to by a nurse from Justice Health after [NAME_2] assault. [NAME_2] documentation suggests that [NAME_2] detainee may have sustained a graze on his forehead and some blood from his nostril, but there was a query whether these were old injuries. Nursing staff specifically noted that [NAME_2] detainee was "too aggressive" for his consent to be obtained to [NAME_2] release of information. 6. [NAME_2] detainee was interviewed by other correctional officers, but his responses were largely confined to protesting his incarceration, although he did disclose, "I was struck in [NAME_2] head and face several times" but refused to sign [NAME_2] completed questionnaire. [NAME_18] observed in an email four days after [NAME_2] incident that he [NAME_2] detainee had, "visible minor injuries to [NAME_2] lips Upper and central/left and some minor bruising shadow to right check. He appears healthy and agile and is eating and fluid intake is normal according to staff who also stated he has been aggressive at times towards staff." 7. [NAME_2] detainee was placed in a safe cell from 22 October 2017 to 3 November 2017 under [NAME_2] care of Mental Health before being moved to [NAME_2] area Mental Health Screening Unit. He was released on 7 November 2017 as a Mental Health Forensic Patient to a [COMPANY_19]. 8. [NAME_2] Appellant was charged by NSW Police with common assault of [NAME_2] detainee and of making a false statement. On 18 July 2018 [NAME_2] Appellant pleaded guilty to [NAME_2] common assault charge in [NAME_2] of NSW. [NAME_2] false report charge was dropped.

9. On 22 October 2018, Magistrate Wynhausen conducted a disputed facts hearing in [NAME_2] of NSW. On 3 December 2018 Magistrate Wynhausen convicted [NAME_2] Appellant and sentenced him to a Community Correction Order (CCO) for a period of 12 months, to perform 150 hours of Community Service Work and to continue to participate in and complete "Defuse Program". On appeal, Acting District Court Judge Delaney dismissed [NAME_2] appeal, quashed [NAME_2] conviction and [NAME_2] and gave [NAME_2] Appellant a Conditional Release Order for two years, expiring on 19 February 2021.

Evidence and submissions

[NAME_2] Respondent's evidence and submissions 1. [NAME_2] Respondent relied upon [NAME_2] written material prepared for [NAME_2] of [NAME_2] matter ([NAME_2] Respondent's Conciliation Bundle): Exhibit R1. [NAME_2] Respondent's Conciliation Bundle consists of written submissions with respect to [NAME_2] matter (p 2-5) and 19 annexures including;

1. CCTV footage of assault on [NAME_2] detainee – 22 October 2017.

2. Misconduct report by [NAME_1] – 22 October 2017.

3. Justice Health's Medical records regarding [NAME_2] detainee's injuries – 22 October 2017.

4. NSW police notebook statement by [NAME_1] – 23 October 2017.

5. Correspondence relating to [NAME_2] suspension of [NAME_1] with pay from 1 December 2017 to 16 February 2018. 6. [NAME_14] report – 22 May 2018.

7. Documents relating to [NAME_2] of NSW hearing of [NAME_2] common assault charge against [NAME_2] Appellant, including court transcript from 3 December 2018.

8. Documents relating to [NAME_2] appeal against [NAME_2] Appellant's sentence in [NAME_2] of NSW, including judgement outcome and transcript dated 20 February 2018.

9. Letter to [NAME_2] Appellant re finding of misconduct – 28 May 2019.

10. Transcript of disciplinary interview – 4 July 2019.

11. Letter to [NAME_2] Appellant providing him with an opportunity to resign dated 31 July 2019.

12. Letter to [NAME_2] Appellant terminating his employment dated 12 August 2019.

13. Documents relating to prior misconduct finding relating to [NAME_2] Appellant regarding incidents in October 2012 and January 2017.

1. In addition, [NAME_2] Respondent relied upon [NAME_2] following witnesses evidence:

1. Affidavit of [NAME_13] dated 1 October 2019 (First [NAME_13]): Exhibit R2. [NAME_13] is a Legal Officer in [NAME_2] branch of [NAME_14]. In [NAME_2] First [NAME_13], [NAME_13] gives evidence that he had been unable to contact [NAME_2] detainee who was assaulted on 22 October 2017 and annexes a copy of [NAME_2] Appellant's security license.

2. Police Statement of First Class Correctional Officer ([NAME_21]) [NAME_22] dated 11 April 2018 ([NAME_22]): Exhibit R3. [NAME_22] transported [NAME_2] detainee from Surry Hills to [NAME_2] where [NAME_2] assault occurred. He gives evidence that force was required to get [NAME_2] detainee on to [NAME_2] transport and that [NAME_2] detainee did not respond to being asked his name by [NAME_2] Appellant and he heard [NAME_2] detainee verbally abuse [NAME_2] Appellant and [NAME_23] as he was being escorted into [NAME_2] cell.

3. Police Statement of Assistant Superintendent (AS) [NAME_24] dated 31 January 2018 ([NAME_24]): Exhibit R4. [NAME_24] gives evidence in [NAME_2] [NAME_24] that he saw [NAME_2] Appellant hitting [NAME_2] detainee in [NAME_2] face, though he does not remember if it was with an open hand or not or if it was "once or twice". He also gives evidence that he removed [NAME_2] Appellant from [NAME_2] yard with [NAME_23] and that [NAME_2] detainee was "just yelling and swearing" at [NAME_2] Appellant;

4. Police Statement of [NAME_23] dated 6 April 2018 ([NAME_23]): Exhibit R5. [NAME_23] was working with [NAME_2] Appellant and witnessed [NAME_2] assault on 22 October 2020. His evidence is considered in greater detail below;

5. Police Statement of Casual Correctional Officer (CCO) [NAME_25] dated 6 April 2018 ([NAME_25]): Exhibit R6. [NAME_25] was involved in [NAME_2] transport of [NAME_2] detainee from Surry Hills to [NAME_2] on [NAME_2] day of [NAME_2] incident. He gives evidence that force was required to place [NAME_2] detainee into [NAME_2] transport; at [NAME_2], he heard [NAME_2] Appellant ask [NAME_2] detainee why he had spat on his face and he heard [NAME_2] detainee being verbally abusive towards [NAME_2] Appellant. He says that at one point he saw [NAME_2] detainee thrown from side to side and [NAME_2] Appellant's arms swinging from side to side but he could not see exactly what was going on due [NAME_2] Appellant being in his line of view;

6. Police Statement of [NAME_28] dated 30 September 2019 ([NAME_27] police statement): Exhibit R7. [NAME_27] is a Senior Investigator with [NAME_2] [COMPANY_3] at [NAME_2] Complex. He gives evidence of [NAME_2] detainee's unwillingness to provide a statement in [NAME_2] investigation and that [NAME_2] reason [NAME_2] charge of providing a false statement was dropped against [NAME_2] Appellant was because it was decided that it did not contribute to [NAME_2] criminality of [NAME_2] more serious offence of assault;

7. Statement of [NAME_16] dated 4 October 2019 ([NAME_16]): Exhibit R8. [NAME_18] held [NAME_2] position of Manager of Security on [NAME_2] day of [NAME_2] assault. He annexes to [NAME_2] [NAME_16]: 1. an Incident Reporting Module completed at [NAME_2] time of [NAME_2] incident; 2. an injury questionnaire following an interview with [NAME_2] detainee; 3. an email from [NAME_18] to A/Governor Woods regarding [NAME_2] accident; and 4. a Use of force Review Report dated 26 October 2017 regarding [NAME_2] incident.

1. Statement of then [NAME_29] dated 9 October 2019 ([NAME_29]): Exhibit R9. [NAME_29] was [NAME_2] at [NAME_2] at [NAME_2] time of [NAME_2] incident. He gives evidence of his interactions with [NAME_2] detainee including attempting to have an incident questionnaire completed by him after [NAME_2] incident and annexes documentation to [NAME_2] [NAME_29] relating to [NAME_2] incident; and 2. Affidavit of [NAME_13] dated 7 November 2019 ([NAME_2] Second [NAME_13]): Exhibit R10. In [NAME_2] Second [NAME_13], [NAME_13] gives evidence with respect to [NAME_2] way in which [NAME_2] Department of Justice manages misconduct allegations and annexes a number of documents, including some information relating to [NAME_2] 2012 incident involving [NAME_2] Appellant. 1. [NAME_30], [NAME_23] and [NAME_18] were cross examined by [NAME_2] Appellant during [NAME_2] hearing of [NAME_2] matter. [NAME_2] Respondent relied upon [NAME_2] case summary filed on 16 October 2019 and submissions filed with [NAME_2] Commission on 7 November 2019 ([NAME_2] Respondent's written submissions) and delivered oral submission at [NAME_2] hearing. [NAME_2] Respondent's case is neatly summarised in [NAME_2] Respondent's written submissions at paragraph [32]-[35]: [32] [NAME_2] respondent contends that [NAME_2] appellant's plea has occasioned a finding of guilt in respect of a serious offence, constituting misconduct for [NAME_2] purposes of s 69 of [NAME_2] Act. [33] [NAME_2] respondent contends that [NAME_2] issue to be determined by [NAME_2] Commission is whether, pursuant to s 100C of [NAME_2] IR Act, it should confirm [NAME_2] order for dismissal or termination or substitute another order. [34] [NAME_2] respondent contends that [NAME_2] order for termination is appropriate in [NAME_2] present case for [NAME_2] following reasons: a. [NAME_2] appellant has received a reprimand for a prior incident involving [NAME_2] use of force in response to an inmate spitting at a time which post-dates his son's diagnosis and [NAME_2] appellant's emerging concern about such behaviour; b. [NAME_2] appellant has therefore had occasion to consider his peculiar circumstances in context of [NAME_2] risk of spitting and how he might avoid such a circumstance or how he might respond to such a circumstance, should it arise again; c. [NAME_2] appellant's response to spitting in 2017 is an escalation in response when compared with his response to spitting in 2012, and is not [NAME_2] type of response to be expected from an experienced [NAME_21] who has been working at [NAME_2] for nearly two decades, dealing with difficult inmates; d. both instances of [NAME_2] appellant's use of force in [NAME_2] context of spitting were immediately preceded by [NAME_2] appellant's being seen on CCTV to handle roughly [NAME_2] inmate concerned in circumstances where such rough-handling appeared neither appropriate nor necessary in [NAME_2] circumstances, de-escalation with difficult or distressed inmates being no doubt [NAME_2] preferable course to be taken by professional, experienced officers, however difficult that might be; e. [NAME_2] appellant has undertaken some courses which might assist him to respond more constructively to an incident of spitting or other aggression, but does not identify what he might have done differently in respect of either of [NAME_2] two spitting incidents, either to avoid (if possible) their occurring or to de-escalate [NAME_2] situation without [NAME_2] use of spontaneous or reactionary force; and f. it is material to consideration of [NAME_2] appropriate misconduct outcome what steps [NAME_2] appellant has taken to reflect on his conduct and to identify what techniques he might use in future to avoid reacting spontaneously ("losing it" or lashing out in rage and fear) to an incident of a kind [NAME_2] appellant is particularly sensitive to given his personal circumstances. [35] [NAME_2] appellant is a commended officer with long experience. He is also an officer with particular personal circumstances which make him vulnerable to responding disproportionately to a spitting or similar incident. It is incumbent upon [NAME_2] appellant to demonstrate to [NAME_2] Commission that he will not again react in such a manner to such an incident, in circumstances where he has twice reacted with force.

[NAME_2] Appellant's evidence and submissions 1. [NAME_2] Appellant relied upon following witness evidence:

1. Statement of [NAME_1] dated 30 October 2019 ([NAME_1]): Exhibit A1. [NAME_2] evidence given by [NAME_2] Appellant in [NAME_2] [NAME_1] and during [NAME_2] hearing of [NAME_2] matter is considered in greater detail below;

2. Statement of [NAME_31], Industrial Officer for [NAME_2] [COMPANY_32] dated 30 October 2019 ([NAME_11]): Exhibit A2. [NAME_2] [NAME_11] attaches a letter outlining misconduct and [NAME_2] disciplinary outcome relating to another correctional officer engaged by [NAME_2] Respondent, along with an extract from [NAME_2] and Procedures titled "13.7 Use of force" (Use of force policy); and 3. NSW Police Force document relating to [NAME_2] detainee: Exhibit A3. 1. [NAME_2] Appellant relied upon written submissions filed on 31 October 2019 ([NAME_2] Appellant's written submissions) and delivered oral submissions before [NAME_2] Commission.

2. In submitting that [NAME_2] appeal should be allowed and [NAME_2] Appellant reinstated with back pay, [NAME_2] Appellant urged that [NAME_2] following matters should be taken into account at [43] of [NAME_2] Appellant's written submissions: 1. [NAME_2] Appellant has consistently admitted his wrongdoing and has not attempted to diminish [NAME_2] seriousness of his conduct; 2. [NAME_2] Appellant's disciplinary record is not of any substance and he had not been disciplined previously for using excessive force on an inmate; 3. [NAME_2] Appellant had been a good and highly respected Correctional Officer and there was no suggestion that he had not performed his duties in a satisfactory manner. In fact, [NAME_2] Appellant had received a commendation for his performance and a written compliment in relation to how he had dealt with a violent inmate; 4. [NAME_2] Appellant's actions were motivated by his belief that [his son's] compromised immune system left him vulnerable to any infections and/or viruses [[NAME_2] detainee] may have infected him with; 5. [NAME_2] Appellant has taken positive steps to address his conduct by attending counselling and completing an anger management course; 6. [NAME_2] Appellant is 54 years of age and has no other training or qualifications to fall back onto. He is [NAME_2] sole income earner for his family and has substantial financial commitments;

7. It is likely that [NAME_2] Appellant's security licence will be cancelled for 5 years, which will have [NAME_2] effect of preventing him from obtaining any work that requires [NAME_2] holding of such a licence. This will limit [NAME_2] employment opportunities available to him; 8. [NAME_2] Appellant's actions were serious, having regards to all [NAME_2] circumstances, there were alternative penalty options available to [NAME_2] Respondent other than dismissal; 9. [NAME_2] Respondent gave little or no consideration to [NAME_2] Appellant's concerns for his son's health and wellbeing, which provoked him to act in [NAME_2] manner he did; 10. [NAME_2] actions of [NAME_2] Appellant on [NAME_2] day in question were an aberration and unlikely to be repeated; 11. [NAME_2] Respondent's decision to dismiss [NAME_2] Appellant was flawed because it – 1. Did not give any consideration to [NAME_2] findings of [NAME_2] that [[NAME_2] detainee] had spat in [NAME_2] Appellant's eye and that this had provoked [NAME_2] Appellant to hit him;

2. Considered that [NAME_2] statement [NAME_2] Appellant had given to [NAME_2] that [[NAME_2] detainee] had assaulted him (by spitting in his eye) was false and constituted dishonesty on his part and an extreme waste of Police resources, in circumstances where [NAME_2] had already made a finding that [[NAME_2] detainee] had spat in [NAME_2] Appellant's eye; 3. [NAME_2] findings of [NAME_2] that [NAME_2] detainee had spat in [NAME_2] Appellant's eye, which constituted [NAME_2] assault upon [NAME_2] Appellant that he had complained about to [NAME_2];

4. Considered that [NAME_2] Appellant had continued to minimise [NAME_2] seriousness of his actions, and by doing so, had provided a disingenuous account in response; 5. [NAME_2] Appellant was also well-regarded by his superiors and colleagues. Footnotes omitted. 1. [NAME_2] Appellant sough [NAME_2] following from [NAME_2] Commission: 1. allow his appeal under section 100C(2) of [NAME_2] Act; 2. set aside [NAME_2] disciplinary action imposed upon him by [NAME_14]; 3. order that any period of employment of [NAME_2] Appellant with [NAME_14] is not to have been broken by [NAME_2] decision of [NAME_14] to dismiss him; and 4. order [NAME_14] to pay [NAME_2] Appellant [NAME_2] remuneration he would have received but for [NAME_2] decision of [NAME_14] to dismiss him, less any amounts earned by [NAME_2] Appellant in [NAME_2] meantime in other employment.

Legislation and principles 1. [NAME_2] Commission's powers in a disciplinary appeal of this kind are contained in Ch 2 Pt 7 of [NAME_2] Act, which relevantly provides as follows: 98 Right of appeal (1) Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to [NAME_2] Commission against an appealable decision of his or her employer. … 100C Decisions with respect to appeals … (2) [NAME_2] Commission, in relation to a disciplinary appeal, may decide to allow or disallow [NAME_2] appeal or make such other decision with respect to [NAME_2] appeal as it thinks fit. (3) Without limiting [NAME_2] generality of subsection (2), if in relation to a disciplinary appeal it appears to [NAME_2] Commission that [NAME_2] employer failed to comply with [NAME_2] rules of procedural fairness in making [NAME_2] decision appealed against, [NAME_2] Commission: (a) is not required to allow [NAME_2] appeal solely on that basis and may proceed to decide [NAME_2] appeal on its merits, or (b) may quash [NAME_2] decision and remit [NAME_2] matter back to [NAME_2] employer with such directions (if any) as to which stage of [NAME_2] disciplinary process in relation to [NAME_2] matter may be recommenced by [NAME_2] employer. (4) [NAME_2] decision of [NAME_2] Commission in respect of an appeal is, except as provided by section 197B, final and is to be given effect to by [NAME_2] employer against whose decision [NAME_2] appeal was brought. 100D Orders by Commission with respect to payment of salary and continuity of employment (1) Without limiting section 100C, if [NAME_2] Commission decides to allow a disciplinary appeal, [NAME_2] Commission may: (a) if [NAME_2] employee has paid a fine imposed by [NAME_2] employer or his or her pay has been forfeited—order [NAME_2] employer to repay [NAME_2] amount of any such fine or forfeited pay, and (b) order [NAME_2] employer to pay [NAME_2] employee an amount stated in [NAME_2] order that does not exceed [NAME_2] remuneration [NAME_2] employee would, but for [NAME_2] decision of [NAME_2] employer, have received from [NAME_2] employer, and (c) order that any period of employment of [NAME_2] employee with [NAME_2] employer is taken not to have been broken by [NAME_2] decision of [NAME_2] employer. (2) Any such order by [NAME_2] Commission must be given effect to by [NAME_2] employer. (3) Nothing in subsection (1) enables [NAME_2] Commission to make an order for compensation in [NAME_2] case where a person is not reinstated or does not continue in employment.

1. In public sector disciplinary matters, [NAME_2] Commission is required to conduct a fresh hearing of [NAME_2] evidence to determine [NAME_2] facts based on [NAME_2] evidence. That is to say, I am not to simply conduct a review of [NAME_2] Respondent's decision. Rather, as set out in [NAME_2] decision of [NAME_6] v State Transit Authority (2017) 96 NSWLR 295 at [35]: In colloquial terms, an appeal by way of fresh hearing means that [NAME_2] appellant body "stands in [NAME_2] shoes" of [NAME_2] original decision-maker. Where there is, as here, a specific charge or complaint before [NAME_2] employer, which has resulted in particular disciplinary action, it will be necessary for [NAME_2] Commission to consider that charge or complaint and, if it be upheld, determine what disciplinary action should be imposed. Generally, it is assumed that [NAME_2] appellant body has [NAME_2] same powers as [NAME_2] original decision-maker, no more want and no fewer. One basis for [NAME_2] inference is a use of [NAME_2] term "appeal" to describe what is in substance a fresh hearing. 1. [NAME_2] Commission's task in these proceedings, is to first determine whether [NAME_2] relevant misconduct occurred. [NAME_2] second step is to determine whether, in [NAME_2] Commission's view, [NAME_2] punishment is appropriate: see Rail Corporation of New South Wales v Elleray [2013] [NAME_4] 86 at [54].

2. I further note that [NAME_6] confirmed [NAME_2] proposition that post-decision events or conduct may be relevant to [NAME_2] consideration of penalty, but not to [NAME_2] consideration of [NAME_2] essential precondition to [NAME_2] imposition of a penalty, namely whether [NAME_2] disciplinary charge has been proven.

Accordingly, if [NAME_2] Commission allows [NAME_2] appeal [NAME_2] Commission may consider post–decision events or conduct in determining whether some other form of disciplinary action is appropriate: see Maritime Services Board v Murray (1993) 52 IR 455.

3. I note that in exercising its jurisdiction in public sector disciplinary decisions, [NAME_2] Commission is exercising a protective function: see [NAME_6] at [21] and Secretary, Department of Justice v [NAME_7] (2014) 86 NSWLR 749; [2014] [NAME_4] 40 at [173].

Consideration 1. [NAME_2] Appellant admits that he assaulted [NAME_2] detainee on 22 October 2017. In determining whether [NAME_2] termination of [NAME_2] Appellant's employment was an appropriate outcome, relevant matters include [NAME_2] nature and seriousness of [NAME_2] assault, [NAME_2] Appellant's explanation for [NAME_2] assault and how he was provoked, [NAME_2] Appellant's remorse and likelihood he will engage in misconduct in [NAME_2] future, [NAME_2] Appellant's employment history and [NAME_2] impact of [NAME_2] termination of employment on [NAME_2] Appellant. I have considered these matters below, along with [NAME_2] Appellant's argument that he was not treated equally when compared to another employee found to have engaged in an assault of a detainee.

[NAME_2] nature and seriousness of [NAME_2] incident 1. [NAME_2] evidence is consistent and uncontested that [NAME_2] detainee was being uncooperative prior to [NAME_2] assault. He was transported from Surry Hills Police Centre to [NAME_2] where [NAME_2] Appellant was working in intake. [NAME_22] and [NAME_25] accompanied [NAME_2] detainee from Surry Hills to [NAME_2] and gave evidence that force was required to get him on to [NAME_2] transport and he was unhappy about being in custody.

2. Upon arrival at [NAME_2], [NAME_2] detainee refused to answer questions asked by [NAME_2] Appellant to establish his identity and he and [NAME_23] had to physically remove him from [NAME_2] transport. [NAME_2] Appellant gave evidence that [NAME_2] detainee was "refusing to go anywhere" and "was being non-compliant". 3. [NAME_23] states at [5]-[6] of [NAME_2] [NAME_23]: "[5] [NAME_2] inmate was sitting down in [NAME_2] truck and was refusing to move. [NAME_1] and I lifted [NAME_2] inmate by [NAME_2] arms off [NAME_2] truck and he began to walk with us escorted into holding yard 1. [NAME_2] inmate sat down on [NAME_2] bench on [NAME_2] left-hand side of [NAME_2] holding yard. [NAME_1] leant in toward [NAME_2] inmate to take his handcuffs off. I recall [NAME_2] inmate had his hands up in front of him to facilitate [NAME_2] removal of [NAME_2] hand cuffs. As this happened [NAME_2] inmate spat at [NAME_1] striking him on [NAME_2] left-hand side of [NAME_2] face. I was stunned by what happened. [6] It appeared that [NAME_1] was stunned also and taken aback a bit by it and reacted by slapping [NAME_2] inmate to [NAME_2] face. These slaps were open handed strikes with [NAME_2] right hand about 5 to 6 times. [NAME_1] took a step back at this point. [NAME_2] inmate has continued to verbally abuse [NAME_1]. It is at this point [NAME_1] has reacted again and hit [NAME_2] inmate with an open hand about 5 to 6 times I can't be certain on [NAME_2] amount of strikes." 1. [NAME_2] Appellant gave [NAME_2] following evidence with respect to [NAME_2] assault at [59]-[62] of [NAME_2] [NAME_1]: "[59] As we moved [[NAME_2] detainee] towards [NAME_2] holding cell, he was continually mouthing off and not wanting to co-operate. I said to him: "Come on mate, you've got to sit down." However, [[NAME_2] detainee] again refused to move, so I pushed him towards [NAME_2] bench in [NAME_2] holding cell. [60] I didn't realise how light [[NAME_2] detainee] was when I pushed him, but as he was not complying, I had to push him, and he came into contact with [NAME_2] wall behind [NAME_2] bench and came back towards me. I then pushed him down onto [NAME_2] bench. Once [[NAME_2] detainee] was seated, I approached him and said: "Mate, I need to take your cuffs off you." He had his arms down low, so I lifted them up in order to access [NAME_2] handcuffs with [NAME_2] key. As I leaned over, [[NAME_2] detainee] spat at me and his spittle hit me in [NAME_2] left eye. [61] I could not believe what [[NAME_2] detainee] had done to me, as I had tried to be nice to him. I recall stepping back from him and saying words to [NAME_2] effect: "Why did you fucking spit at me for? I didn't do anything to you." It was then that I just lost it and slapped [[NAME_2] detainee] on [NAME_2] face with my open hand. After this initial slap, [[NAME_2] detainee] said: "I will spit at you again." [62] I have very little recollection of what occurred after that, but I accept that I then slapped [[NAME_2] detainee] several times with my open hands because he was threatening to spit again. I believe that my instinctive reaction was to stop him from spitting at me again or anyone else." 1. [NAME_2] footage of [NAME_2] assault on 22 October 2017 shows [NAME_2] Appellant bringing [NAME_2] detainee into [NAME_2] cell. [NAME_2] Appellant then pushes [NAME_2] detainee into [NAME_2] wall twice before striking his face and upper torso 11 times with both arms. [NAME_2] pushes to [NAME_2] wall, [NAME_2] Appellant administers [NAME_2] first nine strikes, before a short pause, then continuing [NAME_2] assault with two further strikes.

2. As a consequence of [NAME_2] angle of [NAME_2] camera recording [NAME_2] footage, it is inconclusive as to whether [NAME_2] detainee spat at [NAME_2] Appellant and whether [NAME_2] strikes were with an open or closed fist. 3. [NAME_2] account of [NAME_33] and is inconsistent with [NAME_2] footage and [NAME_2] Appellant's evidence. When taken into [NAME_2] cell, [NAME_2] detainee does not sit down but is pushed against [NAME_2] wall by [NAME_2] Appellant, [NAME_2] strikes to [NAME_2] detainee then commence almost immediately after this and there simply isn't time for [NAME_2] events described by [NAME_23] to play out as he explained.

4. However, I accept [NAME_2] account of [NAME_23] and [NAME_2] Appellant that [NAME_2] detainee was being defiant and [NAME_2] Appellant was spat on at some point by [NAME_2] detainee prior to [NAME_2] assault and this provoked [NAME_2] Appellant. [NAME_2] fact that [NAME_2] Appellant is spat on is supported by [NAME_2] evidence of [NAME_2] [NAME_25] who stated that he heard [NAME_2] Appellant asking [NAME_2] detainee, "[NAME_2] fuck did you spit on my face?" proximate to [NAME_2] assault: [NAME_25] at [8]. I note also [NAME_2] absence of evidence from [NAME_2] detainee on this point. [NAME_2] evidence also supports [NAME_2] conclusion that [NAME_2] strikes were with an open hand, rather than closed fist. 5. [NAME_2] offence was an act of violence against a person who was being defiant and difficult, but whom was still in a vulnerable situation, handcuffed and unable to fend off [NAME_2] Appellant. There was a considerable size difference between [NAME_2] Appellant and detainee. [NAME_2] estimated [NAME_2] detainee as 155 cm in height and 60 kg in weight, while [NAME_18] appears to have estimated his weigh as ">50 kg": [NAME_16], attachment C. By way of contrast, [NAME_2] Appellant estimated his own weight to be between 100 to 104 kg: Tcpt 18 December 2019 p 58 ln 34-35. [NAME_2] assault occurred in [NAME_2] company of another correctional officer, [NAME_23]. 6. [NAME_2] detainee was described by then [NAME_29] as, "extremely mentally unwell and volatile". After being detained in a safe cell from 22 October 2017 to 3 November 2017 under [NAME_2] care of Mental Health, he was released on 7 November 2017 as a Mental Health Forensic Patient to a [COMPANY_19]: [NAME_29] at [9].

7. By [NAME_2] nature of his role, [NAME_2] Appellant was in a position of trust and authority in relation to [NAME_2] detainee. [NAME_2] Respondent had a duty of care towards [NAME_2] detainee, delegated to [NAME_2] Appellant which he breached.

8. While there is no evidence before [NAME_2] Commission that [NAME_2] detainee suffered substantial injury or emotional harm as a result of [NAME_2] assault, [NAME_2] assault was clearly serious in nature.

[NAME_2] Appellant's explanation for [NAME_2] assault and [NAME_2] provocation from [NAME_2] detainee 1. I accept [NAME_2] Appellant was significantly provoked by [NAME_2] detainee and that [NAME_2] Appellant's personal circumstances as they related to his son's illness contributed to his response. [NAME_2] Appellant gave evidence with respect to his son's condition and how this contributed to his conduct: Tcpt 18 December 2019 p 78 Ln 38 to p 79 ln 41: Q. You didn't think to include anything more than that? A. No. All I was thinking about ma'am is [NAME_2] repercussions of what I'm going to have to go through, that's basically what was going through my mind at [NAME_2] time of [NAME_2] incident. I was thinking that I would - because I'd been spat at in [NAME_2] past, [NAME_2] six months of blood testing that I would have to undertake and which is stressful in its own right because I still wouldn't know whether I had contracted any form of communicable disease, that was one you know. [NAME_2] actual six months of non-intimate contact I'm going to have with my wife or lack of and that's hard but [NAME_2] most important thing that really you know I was thinking about is [NAME_2] wellbeing of my son [NAME_34] and that was really on my mind and it's always been on my mind I think about it all [NAME_2] time and because in 2010 he was diagnosed with paediatric melanoma and at that very point, that very point doctors told us that he only had six months to live and there was nothing we could do about it. That was definitely one of [NAME_2] lowest points and times of our lives to see that your son is not going to be with you for [NAME_2] next - from six months on. And that was in my mind [NAME_2] whole time, everything else was just a blur unfortunately when - we were fortunate enough at [NAME_2] time like I said was [NAME_2] lowest part of all our lives, my wife, to come to realisation that our son would not be with us for [NAME_2] next - from six months on. Fortunately there was a trial drug that was introduced into [NAME_2] fray and we were blessed to be able to get our son on to that drug, onto that treatment and it was at least something we could do. So we did it and fortunately we were blessed that [NAME_2] drug you know was hard to watch [NAME_2] treatment because over [NAME_2] 12 month period that he was, [NAME_34] was on [NAME_2] treatment, he was very - it was hard to see him he was sick more than anything over [NAME_2] whole period. It was very hard for all of us and especially for him and you know I have those memories all [NAME_2] time and fortunately for us God bless [NAME_2] treatment worked, it actually stopped [NAME_2] spread of [NAME_2] cancer. It stopped [NAME_2] reoccurrence of it ever coming back to this point, touch wood, and you know that's what I was thinking about. I think about constantly, all [NAME_2] time. Q. What-- A. And [NAME_2] unfortunate thing with that treatment is that [NAME_34]'s got a compromised immune system. Now we take all precautions we have since it's happened with [NAME_34]. We deal with any health issues that he has because if we don't his condition deteriorates pretty quickly and over [NAME_2] last - since [NAME_2] diagnosis I suppose numerous times we've had to take him to Westmead Hospital straight away or else his ..(not transcribable).. just goes from zero to 40 in [NAME_2] space of an hour or something like that so it's a very thing - and that's one of [NAME_2] reasons why I reacted [NAME_2] way I did because I was scared because I can't afford to take any diseases or infections home because [NAME_2] repercussions could be you know tremendous for my son. It's one of those things and I apologise, I'm so sorry that this incident happened and I'm so regretful that you know I've put everybody through this. My wife, my friends, my family you know [NAME_2] department. I apologise for my actions you know it's inexcusable [NAME_2] way I reacted and I just I regret every bit of time that heartache I put my wife and my kids through, my friends, fellow workmates. [NAME_2] department you know [NAME_2] way I've been made - my actions have made it look horrible which they are, they were and that's inexcusable and I just regret [NAME_2] whole thing and I regret you know like what hurt I gave to [NAME_35]. I didn't mean to - and that's [NAME_2] last thing I wanted to do is ever hurt somebody but unfortunately I was thinking - that's what I was thinking of and I reacted and I did, I over reacted and that's unfortunately what's got me in this situation now and I'm really sorry about [NAME_2] whole thing.

1. I also accept that [NAME_2] Appellant's previous experience of having been spat on in 1999 influenced his reaction: see [NAME_1] at [44]-[48]. 2. [NAME_2] Appellant gave evidence with respect to [NAME_2] assault that, "I believe that my instinctive reaction was to stop him from spitting at me again or anyone else", and "I just lost control when ([NAME_2] detainee) spat in my eye because in that instant I realised what could be [NAME_2] ramifications for me and possibly my son because of his precarious health."

3. Under cross examination, [NAME_2] Appellant also gave [NAME_2] following evidence in explanation of [NAME_2] assault: Tcpt 18 December 2019 at p 71 ln 37 to p 72 ln 8: Q. You've said in your statement that [NAME_2] reason why you administered those strikes to Mr [NAME_2] detainee was to stop him spitting again? A. Yes. Q. How would slapping him about [NAME_2] head numerous times stop him from spitting? A. My perception was just to try and give him a deterrent to stop. Q. You're a custodial officer of long experience [NAME_1]? A. Yes. Q. You're [NAME_2] only custodial officer apart from [NAME_11] in this room with that length of experience correct? Can you explain to us why it is that you think or you thought at [NAME_2] time that slapping [NAME_2] inmate about [NAME_2] head, striking [NAME_2] inmate about [NAME_2] head 11 times would stop him from spitting? Can you explain that to us so that we understand? A. It's hard to put a perception on why that would happen but inmates over - well over [NAME_2] years I've dealt with inmates in an aggressive manner like that and that protocol has in nine times out of ten assisted me in dealing with [NAME_2] situation. Not particularly in that aggressive - that format but very similar to what I actually did is to try and create a deterrent for them to stop their behaviour. Q. You've mentioned protocol [NAME_1] what are you referring to when you use [NAME_2] word protocol? A. In relation to which? Q. No this is a word you've used in evidence. You've just said you're dealing with someone who is presenting in an aggressive manner that protocol has assisted me with dealing with people who are presenting in an aggressive manner. What protocol are you referring to? What do you mean by protocol? A. Using whatever means necessary to deal with [NAME_2] situation. Q. So that's a personal protocol, when you say protocol that's your personal perception of what's an appropriate-- A. No [NAME_2] protocol-- Q. --response. A. [NAME_2] protocol is if you have - for example a non-compliant inmate like he was, there's protocols in relation to you're entitled to use, to deal with that situation. That's protocol. Q. But my question is more particular [NAME_1]. I'm asking you about administering 11 strikes to [NAME_2] head of [NAME_2] inmate. How is it that that was going to prevent him in your mind from spitting again? It's a very specific question. A. To be honest with you I thought it would help because I actually was not thinking correctly and I actually my mind was just not there. I'd lost it. Q. Sitting here now you'd agree that what you did was not appropriate in [NAME_2] circumstances? A. Yes. Q. You're aware that you can use force as a Correctives Officer? A. Yes. Q. In certain circumstances? A. Yes. Q. That [NAME_2] test is it's got to be reasonable and necessary? A. Yes. Q. Do you agree with me that what you did was neither reasonable nor necessary? A. I'd agree that I lost it. Q. [NAME_1] do you agree that your response was inappropriate? A. Yes. Q. To [NAME_2] inmate in slapping him, striking him? A. Yes. Q. Do you agree that more than that it was inappropriate for an officer of your seniority to strike [NAME_2] inmate as you did? A. I cannot - I agree with what you say. Unfortunately at that particular time I just wasn't my mind was not concentrating being inappropriate, my mind was just concentrating on what I'd just been - what I've just gone through. I'd just been spat at. Q. And that's-- A. And my mind was - I wasn't thinking clearly, I was just thinking of other things and that's all that was going through my mind. Q. Do you agree with me when I say that [NAME_2] use of force, [NAME_2] striking 11 times, was uncontrolled on your part? A. I didn't understand what I did at [NAME_2] time because unfortunately I wasn't with it at that time, I did momentarily had lost - like I said to [NAME_36] I lost myself. Q. To use your word momentarily are you saying you were momentarily out of control? A. Yes. Q. You'd agree with that proposition I'm putting to you? A. That position is that I lost my - lost control.

1. I accept [NAME_2] Appellant's account that [NAME_2] offending conduct was not planned and that he "lost it", meaning he lost control of himself in circumstances where he was significantly provoked and that provocation had a particularly adverse impact on him because of [NAME_2] unique medical circumstances of his son being immunocompromised.

Remorse and likelihood of future misconduct 1. It is appropriate for [NAME_2] Commission to consider whether or not [NAME_2] Appellant accepts [NAME_2] seriousness of his behaviour and whether it is likely that he would conduct himself in [NAME_2] same way again in [NAME_2] future. In that regard I note that [NAME_2] Appellant has expressed remorse with respect to his conduct: see for example, [109]; [115]-[117] and [121] of [NAME_1]. [NAME_2] Appellant also gave evidence of his remorse before [NAME_2] Commission and represented that he would not engage in [NAME_2] same or similar conduct in [NAME_2] future.

2. However, it should be noted that [NAME_2] Appellant's initial response to [NAME_2] incident was to pursue [NAME_2] detainee for his spitting, as he reported this aspect of [NAME_2] incident to NSW Police, without giving an account of his retaliatory conduct. Further, although [NAME_2] Appellant called [NAME_18] and told him that he had "lost it and given it" to [NAME_2] detainee, [NAME_2] Appellant's written report of [NAME_2] incident did not disclose [NAME_2] extent of his retaliation. [NAME_2] Appellant's written report of [NAME_2] incident to [NAME_2] Respondent stated that he had reacted to being spat at "without hesitation by applying an open handed palm strike to" [NAME_2] detainees head. [NAME_2] Appellant continued that his "memory beyond that point is unclear however I do recall Officer Valiant (sic) encouraging me to leave [NAME_2] cell which I did": Misconduct Report Exhibit R1 Attachment B. [NAME_2] Appellant did not explain in [NAME_2] that he had retaliated with a number of strikes to [NAME_2] head and upper torso of [NAME_2] detainee. 3. [NAME_2] Appellant's actions in submitting these reports to NSW Police and his employer demonstrate that he was not immediately remorseful of his own actions. 4. [NAME_2] Appellant gave evidence that he had taken steps to address his anger, including attending six sessions of counselling through [NAME_2] [NAME_37], which were conducted on behalf of [NAME_14] by [NAME_38]. Further, [NAME_2] Appellant undertook an anger management course with [NAME_39], attending six Defuse (men managing emotions) sessions. He deposes that he would not react in [NAME_2] same manner if a similar incident occurred in [NAME_2] future. 5. [NAME_2] termination of employment has had a significant impact upon [NAME_2] Appellant and I find that if he was reinstated, he would try not to do anything to find himself in a similar situation. It is difficult to predict if another incident might occur if he was reinstated, however on balance, I think there is at least a chance he would conduct himself in a similar way given his explanation of having "lost it" on 22 October 2017.

[NAME_2] Appellant's employment history 1. [NAME_2] Appellant has given long service to [NAME_2] Respondent and I accept his evidence that he "loved (his) role as a Senior Correctional Officer and believed that over [NAME_2] years of (his) lengthy service with [NAME_14] (he) had contributed to [NAME_2] efficient running of [NAME_2] [NAME_15]." [NAME_2] Appellant received a number of personal commendations for his work with [NAME_2] Respondent and is well respected by his colleagues: see for example, [NAME_1] at [24] and pp 106 – 113; References from [NAME_40], SAS, [NAME_42], [NAME_44]: [NAME_1] at pp 130-133. 2. [NAME_2] Appellant has also invested considerably in his professional development completing a number of courses offered by [NAME_2] Respondent: [redacted] 3. [NAME_2] Appellant was received a reprimand in respect of an incident involving force being used upon a detainee in October 2012. In respect of this incident, [NAME_2] Appellant was found to have grabbed [NAME_2] detainee around [NAME_2] neck four times. [NAME_2] investigation found that [NAME_2] Appellant failed to consider, in [NAME_2] circumstances, any alternative to [NAME_2] of Force he adopted. [NAME_2] Appellant claimed that this action was in response to [NAME_2] detainee threatening to spit on him. This incident is of little relevance to [NAME_2] matter at hand, noting that it occurred some 5 years prior to [NAME_2] assault that led to [NAME_2] Appellant's termination of employment. It is also worth noting that [NAME_2] Appellant was not found to have used excessive force during this incident. 4. [NAME_2] Appellant was also subject to another disciplinary matter in respect of an incident in January 2017 when he allowed a detainee to use [NAME_2] toilet in private in contravention of [NAME_2] Respondent's operational requirements. This incident resulted in a fine of $800 and a reprimand.

5. Overall, given [NAME_2] length of [NAME_2] Appellant's service, I have concluded that he was a highly valued employee with a not unscathed but pretty good employment record.

Impact of [NAME_2] decision to terminate [NAME_2] Appellant's employment 1. [NAME_2] Appellant is married with three children, one of which is dependent upon him. He is [NAME_2] sole bread winner from his family, with all three adult children living at home. 2. [NAME_2] Appellant gave evidence in relating to [NAME_2] financial impact [NAME_2] suspension and termination of his employment has had and will continue to have upon him.

3. At [NAME_2] time of [NAME_2] hearing, [NAME_2] Appellant had substantial financial obligations, including three loans with a mortgage balance of $1,331,000 requiring loan repayments of $5,680 per month. However, while there was evidence before [NAME_2] Commission that [NAME_2] Appellant owned his family home and a rental property in Miranda, there was insufficient evidence before [NAME_2] Commission to enable an assessment of [NAME_2] Appellant's net financial worth, for example [NAME_2] equity he has in [NAME_2] assets associated with [NAME_2] mortgages. He gave evidence that he pays for one adult son's university tuition fees and books and monthly physiotherapy appointments.

4. When suspended, [NAME_2] Appellant was paid his base pay of $2,429.88 per fortnight, which was significantly less than what he was earning prior to his suspension as he regularly worked shifts that attracted overtime. This was demonstrated by [NAME_2] a fortnightly payslip for [NAME_2] pay period ending 10 December 2017 where he earned $5,284.58 gross and his PAYG Summary for [NAME_2] year ending 30 June 2017 which showing that his gross income was $92,794 for that financial year, while his base annual salary was $76,901: see [NAME_1] at pp 101-102. [NAME_2] Appellant gave evidence that since his suspension and termination, he had lost $9,719.52 in income. No doubt those losses were ongoing.

5. At [NAME_2] time of [NAME_2] hearing, [NAME_2] Appellant had secondary employment as a Part-Time Evening Duty Manager earning about $1,100 per fortnight net. He was also receiving rent from a property located in Miranda. 6. [NAME_2] suspension of [NAME_2] Appellant's employment and ultimate termination has had a considerable financial impact upon him. [NAME_2] loss of his employment will place much pressure upon [NAME_2] Appellant and his family into [NAME_2] future. 7. [NAME_2] Appellant does not have a trade or other higher qualifications and it was agreed between [NAME_2] parties at [NAME_2] hearing that his Security Licence would be revoked as a result of [NAME_2] assault for a significant period of time.

Unequal Treatment 1. [NAME_2] Commission was a letter dated 15 July 2019 to another officer of [NAME_2] Respondent who was issued with a warning and required to undertake remedial action after he was found to have used excessive force on a detainee and given a false or misleading statement about [NAME_2] incident: Annexure A of [NAME_11]. [NAME_2] Appellant argued that [NAME_2] treatment of [NAME_2] Appellant was disproportionate when compared to [NAME_2] outcome relating to this officer, where [NAME_2] matter was not referred to [NAME_2] for investigation and did not result in consideration for criminal conviction. [NAME_2] Commission is unable to conclude from this letter that [NAME_2] Appellant was treated unfairly when compared with this officer in [NAME_2] absence of evidence of all of [NAME_2] circumstances of [NAME_2] incident and related investigation, including [NAME_2] employment history of [NAME_2] relevant employee. In any event, [NAME_2] Commission is required to consider [NAME_2] Appeal based on [NAME_2] facts and circumstances of [NAME_2] matter before it.

Conclusion with respect to termination of employment 1. [NAME_2] action taken by [NAME_2] Appellant when he assaulted [NAME_2] detainee on 22 October 2017 constituted a gross breach of [NAME_2] duty of care owed to a prisoner detained by [NAME_2] [NAME_46]. [NAME_2] detainee was effectively defenceless, handcuffed and significantly smaller than [NAME_2] Appellant. [NAME_2] detainee was defiant and assaulted [NAME_2] Appellant by spitting on him, [NAME_2] Appellant's retaliatory conduct was dangerous, disproportionate and unnecessary. [NAME_2] conduct of [NAME_2] Appellant was not condoned by any protocol or policy of [NAME_2] Respondent. 2. [NAME_2] provocation by [NAME_2] detainee and [NAME_2] unique family circumstances of [NAME_2] Appellant are relevant, they do not justify his actions. [NAME_2] Appellant was an experienced and senior employee in a position of leadership to more junior staff and his conduct fell well short of expected standards. [NAME_2] abuse of a detainee, who of necessity is in position of vulnerability by a [COMPANY_3], to [NAME_2] extent and degree in this matter, constitutes an especially serious form of misconduct. 3. [NAME_2] Commission is exercising a protective function in determining this appeal. This necessarily requires consideration of [NAME_2] interests of [NAME_2] Appellant, but also [NAME_2] object of [NAME_2] disciplinary outcome as [NAME_2] protection of [NAME_2] public, [NAME_2] maintenance of correct standards of conduct on [NAME_2] part of employees of [NAME_14] and [NAME_2] protection of [NAME_2] reputation of [NAME_14]. 4. [NAME_2] decision to uphold [NAME_2] termination of employment of [NAME_2] Appellant will have a significant personal impact upon him. However, these factors do not outweigh [NAME_2] gravity of his actions.

5. I have arrived at this decision, having carefully considered [NAME_2] way in which [NAME_2] Appellant was provoked by [NAME_2] detainee, his personal circumstances, including [NAME_2] illness suffered by his son and his experience of having been spat on in 1999, his lengthy service, [NAME_2] positive accolades from his peers and superiors, his stated remorse and [NAME_2] remedial steps he has taken.

6. I have also considered [NAME_2] Appellant's suggestion of amending [NAME_2] disciplinary outcome to demotion with a warning. This would not be an appropriate response to [NAME_2] violence inflicted by [NAME_2] Appellant upon [NAME_2] detainee. [NAME_2] only disciplinary action that is appropriate and proportionate to [NAME_2] Appellant's misconduct in this matter is [NAME_2] termination of his employment.

7.

For these reasons, I have decided [NAME_2] appeal must be dismissed.

Orders 1. I order that [NAME_2] appeal be dismissed.

[NAME_5]

COMMISSIONER

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. [NAME_2] onus remains on any person using material in [NAME_2] judgment or decision to ensure that [NAME_2] intended use of that material does not breach any such order or provision. Further enquiries may be directed to [NAME_2] of [NAME_2] or Tribunal in which it was generated. Decision last updated: 21 May 2020