TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s29 application for hearing of an industrial dispute

United Voice, Tasmanian Branch 
(T14114 of 2013)

and

The Minister administering the State Service Act 2000/Department of Justice

PRESIDENT T J ABEY
	HOBART, 31 January 2014	

Industrial dispute – termination of employment – code of conduct investigation – strip search -  director’s standing orders – valid reason found – termination unfair and disproportionate to offence - demotion as a sanction – 
re-employment – continuity of employment - order issued

DECISION

(1)	On 11 November 2013 United Voice, Tasmanian Branch, (UV) applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984 (the Act) for a hearing before a Commissioner in respect of an industrial dispute with the Minister administering the State Service Act 2000 (MASSA) (Department of Justice) (DOJ) arising out of the alleged unfair termination of employment of Mr Russell Armstrong.

(2)	In this matter, Correctional Supervisor (CS) Russell Armstrong asserts that the termination of his employment by letter dated 1 November 2013 from the Head of Agency Mr Simon Overland (the Secretary) was not for a valid reason and was unfair. He seeks reinstatement without loss of salary or leave accrual.

(3)	The termination arose from an incident involving the strip search of a female detainee by Mr Armstrong on 23 May 2013. A Code of Conduct (ED5) investigation followed which subsequently resulted in a finding by the Secretary that the State Service Code of Conduct had been breached in a number of respects. The Secretary concluded:

“In all the circumstances I believe that in order to maintain public confidence in the Tasmanian Prison Service; the morale of your fellow Correctional Officers and the safety, security and good order of the prison system the only appropriate sanction in this case is dismissal.”

Code of Conduct Investigation

(4)	On 17 June 2013 the Secretary appointed Mr John Withers (the Investigator) to conduct the ED5 investigation. Mr Withers interviewed a number of witnesses and completed his report on 6 August 2013.

(5)	Mr Armstrong was given the opportunity to respond to the report, which he did.

(6)	The Secretary released his determination on 1 November 2013. The Secretary found that Mr Armstrong had breached the following sections of the Code of Conduct as specified in the State Service Act 2000:

“9. The State Service Code of Conduct
…
(2) An employee must act with care and diligence in the course of State Service employment.
(3) An employee, when acting in the course of State Service employment, must treat everyone with respect and without harassment, victimisation or discrimination. 
(4) An employee, when acting in the course of State Service employment, must comply with all applicable Australian law.
…
(14) An employee must at all times behave in a way that does not adversely affect the integrity and good reputation of the State Service.”

Incident of 23 May 2013

(7)	Hobart Reception Centre (HRP) is adjacent to the central Police Station and the Hobart Magistrates Court. The primary purpose of the facility is to hold inmates and detainees on remand prior to a court appearance or release back to the police.

(8)	On 23 May 2013 a total of eight staff were on duty during the day shift. Relevantly, Level 1, where the incident occurred, was staffed by CS Armstrong and Correctional Officer (CO) Allen. No female staff were rostered.

(9)	At approx. 12.30 pm a detainee, Ms C, was brought into HRP from the Police Station. She was escorted by Sergeant Grincais and Constable Aboud. Ms C was formally handed over to HRP staff and the necessary paperwork completed.

(10)	Following the handover Ms C was taken to cell 109 for a strip search, a mandatory process for all detainees received into HRP. 

(11)	The Investigator’s report stated:

“Correctional Supervisor Armstrong said he did not have any females available and asked me [Aboud] if there were any female police officers. Constable Aboud said there were none at the moment “as she is on the road”. He then said to me (Armstrong) “I guess I will have to do it then”. At which time I replied are you allowed to do that (the strip search) and “he replied to me that is why I have three pips on my shoulder”.”

(12)	Both CS Armstrong and Constable Aboud separately asked Ms C whether, in the circumstances, she consented to the search being conducted by CS Armstrong. The evidence is that she agreed.

(13)	CS Armstrong accompanied Ms C into the cell. Constable Aboud remained outside. CO Allen completed some paperwork and returned to the cell approximately one minute after the search commenced and stood outside with Constable Aboud. Neither was in a position to sight either Ms C or CS Armstrong. 

(14)	Constable Aboud said in his interview:

“Constable Aboud stated the [sic] he did ask Correctional Officer Allen if it was OK and if someone else should be in there with him (Armstrong). Allen said it was OK as there was a camera in there.”

(15)	CS Armstrong conducted the search using the approved ‘half half’ technique (top half then bottom half).

(16)	At the end of the search CS Armstrong asked Ms C to squat. Asked by the investigator to explain this, Mr Armstrong said: 

“CS Armstrong advised that he was in ‘operational mode’.  That is that [sic] how he conducts searches based on his experience with male detainees.  He explained that for male detainees the process is that all the clothing is removed.  However for females it was ‘half half’ [top half then bottom half] and he was conscious not to embarrass her.  The request for her to squat was based on his previous experience working with males and that when he asked her to adopt that position he quickly realised that it was a mistake and promptly handed her knickers and left the cell.”

(17)	CS Armstrong returned to the cell two minutes later and found Ms C still in the squat position. The Investigator’s summary of interview with CS Armstrong relevantly states:
13.	
e. 
ix. When he went back to cell to find out what was going on, he found that she was in a semi squatting position and told her she could stand up.  He then asked her if there was a problem and she said “that you did not tell me to get back up”. He stated he told her “[Ms C ] please stand back up. You do not need to be like that”.
x. He was not sure if he spoke to her through the flap or opened the door.  He then offered some coffee and lunch.

14.	I then asked him to confirm why he left her in a squat position.  He said that he did not mean to do so as he handed her knickers back to her and wanted to leave the cell.  So he was surprised to find her in that position when he returned to the cell. All the male prisoner/detainee’s always get dressed and just lay down on the mattress or just walk around the cell when you shut the door.” 

(18)	Immediately following the search CO Allen requested that CS Armstrong include some additional comments on the ‘Admission to Watch House Facility’ form to the effect that Ms C had consented to the search. His record of interview states:

“ “I actually told Russell to write on the form as soon as he come(sic) back from doing the strip search to put something down that she consented to the search because I wasn’t sure what the go was with or overly happy with it so I made him write on the form.” ”

(19)	CO Allen said he did not raise his concerns with anyone else in the Tasmanian Prison Service (TPS).

(20)	The following notation was added to the abovementioned form by CS Armstrong:

“No females available for strip search. Male C/S completed strip search which female consented with in camera cell 109. Male police Officer outside cell door.”

(21)	At approx. 1 pm Custodial Manager (CM) Chaplin walked past the control room. The Investigator’s report contains the following:

20.	… and as he walked past the Control Room, CO Dale Ellis called out to him “You need to see this”. CM Chaplin then entered the Control Room and was shown the CCTV coverage of the strip search. He stated that he only watched half and then he told CO Ellis “not to show any one that tape and get a copy of it”.
21.	CM Chaplin then went down to Level 1 to speak to CS Armstrong about the strip search. He asked CS Armstrong why he strip searched a female? He stated that CS Armstrong said to him “there was no female available and I thought I could”.
22.	CM Chaplin then informed CS Armstrong that the incident would be reported to Mr Partridge (Asst Director TPS). CM Chaplin instructed CS Armstrong to complete an incident report.”
Evidence

(22)	Sworn evidence was taken from Mr Russell Clifford Armstrong.

(23)	A witness statement from CM Gregory Royal Chaplin, was tendered and accepted without the need for cross-examination.

(24)	The report of the Investigator, John Withers, dated 6 August 2013, was tendered with supporting documentation. This included records of interview with CS Armstrong, CO Allen, CO Bell, CM Chaplin and Constable Aboud.

The Regulatory Framework

(25)	The following statutory and regulatory instruments are relevant to this matter:
Corrections Act 1997

Section 4 reads:
“4. Guiding principles
The powers conferred by this Act are to be exercised with proper regard to the following principles:
(a) the community is entitled to an appropriate level of protection from illegal behaviour by people subject to this Act;
(b) people who are subject to this Act retain their normal rights and responsibilities as citizens, except as these are limited in accordance with law;
(c) services and procedures should be fair, equitable and have due regard to personal dignity and individuality, as far as is consistent with the need for appropriate levels of security and control;
(d) individuals are capable of change;
(e) people subject to this Act continue to be members of the community and should be assisted to become socially responsible. Whilst their liberty is restricted to various degrees, demonstrated social responsibility should lead to less intrusive control and intervention.”

Section 6(3) Powers and duties of Director reads:

“6. Powers and duties of Director
(3) The Director may make standing orders for the management and security of prisons and for the welfare, protection and discipline of prisoners and detainees.”

Section 22 Search, relevantly reads:

“22. Search
(1) The Director may, for the security or good order of the prison or the prisoners or detainees, at any time order a correctional officer to –
…
(b) search and examine a prisoner or detainee, a visitor to the prison, a correctional officer or any person appointed or employed for the purposes of this Act or any other person in the prison; or
…
(4) A search or examination of a female visitor under this section is to be made by a female officer and in the presence of females only.”

Interim Director’s Standing Order (SO) 1.11 Searching Prisoners/Detainees relevantly reads:

“5. General Provisions

5.1 Searches are conducted for the safety and protection of every person within the prison facility and to ensure the secure containment of prisoners/detainees is maintained.  Searches are not conducted to agitate, punish or cause indignity to prisoners/detainees.

5.2 Searches must be conducted with consideration for prisoners’/detainees’ dignity, self-respect and privacy, without compromising the effectiveness of the search.

5.3 Correctional Officers may search prisoners/detainees in circumstances pre-determined by, or at the direction of, the Correctional Manager of the prison.

…

5.10 At least two Correctional Officers must be present during strip searches, and where possible, both officers should be the same sex as the prisoner/detainee. If this is not possible, the officer who is of the same sex as the prisoner/detainee will conduct the search. The second officer must be in line of sight of the first officer, but not directly view the prisoner/detainee.

5.11 Correctional Officers may visually inspect a prisoner’s/detainee’s mouth and ear cavities when conducting a search, but are not permitted to search any other body cavities. 

…

6. Minimum Standards

6.1 All Correctional Officers conducting searches must have successfully completed the relevant training through the Staff Development and Training Unit.

6.2 All searches must comply with the relevant legislation, Director’s Standing Orders and Standard Operating Procedures.

6.3 Prisoners/detainees must be strip searched upon their initial reception to a prison.

…”

Evidence Relevant to the Issues

(26)	Mr Armstrong has been a Correctional Officer for fourteen years. Of that time he has acted as a Correctional Supervisor for approximately two years and was appointed as a permanent Supervisor in December 2012. His uncontested evidence is that he has not been counselled or warned in relation to any event in the entire fourteen years.

(27)	In relation to his commencement at HRP Mr Armstrong said:

“Now when you commenced as a Correctional Supervisor at the Hobart Reception Prison due you undergo any induction process?.......There was a handover sort of, when I went over there, briefly and it was just outlined on the paperwork that I had to fill in.  But there was no induction.  It was a very haphazard handover.

Was there explanation of the various procedures or policies that applied at the Hobart Reception Prison?........There was none.”

(28)	Since joining HRC, Mr Armstrong said that he had participated in 4-6 strip searches of females. On each occasion he had assisted a female officer, who had undertaken the actual search. In his previous role at Risdon Prison Complex (RPC) he had not participated in any strip searches of females as RPC only had male inmates.

(29)	In relation to his conversation with Constable Aboud, Mr Armstrong said:

“Right.  Now you say that in your evidence that you asked Constable, Senior Constable Aboud about the availability of a female police officer?.........Yes.

And you say that he made some enquiries but came back to you and told you that one wasn’t available………He said there was none, no female police officers next door.

Yes, and did he indicate where, if there were any police officers, female police officers out on patrol?........Not that I can remember now.”

(30)	And earlier:

“I wasn’t aware of the protocol of ringing up Mary Hutchinson Women’s Prison at the time, and if that – and it would have been probably about an hour before even probably a female police officer or female prison officer can come over, probably at least.”

(31)	In relation to the incident on 23 May, Mr Armstrong said:

“At the time I was faced with a dilemma when she was placed in our care where yes, I could not seek a female from next door, I thought it was my responsibility to maintain the security of the prison, the interior of the prison.  There’s been occasions where we strip-search males and females going through the Reception Prison where we’ve found drugs on inmates, phones on inmates, syringes on inmates.  Females are known to just slip their bra and tuck the pills down inside their bra, they’re known to put their bra in their necks.  On one occasion we had a female in there who had a bit of glass in a pocket.  She cut her hand, put blood all over the walls, door, floor, everywhere where in the end they had to go in there and hold her down and completely take her in naked and give her a doona until you know they got that bit of glass out so she couldn’t self-harm herself.  If I would have put this female in a cell, you know, if something happened, I would have been probably blamed for something, you know, that she brought something or she had something on her to do that.  I just had this dilemma to put her in there or follow the security of the interior of the prison for not only the prison staff and of course her, self-harm herself, to make sure she was right, and I thought I’d done the right thing by doing that.  I thought I had to do that as my, as a supervisor.  As I said I’d never worked with females before.  I was, I took her down into her cell.  It was a camera cell, so I wanted to make sure everything was all above board and I couldn’t have been accused of anything.  I wasn’t aware that I couldn’t do, you know, strip-search of females.  It doesn’t, it isn’t really stated in the DSH what happens when a female does come into custody and you’ve got no female staff or police officer there.  I thought I’d done the wrong(sic) thing, but after the, after the fact where Mr Chaplin talked to me in his office and said ‘you can’t do that’, that’s only the first time I knew that you can’t strip-search females.  That’s the first time, in fourteen years I’ve never heard in the induction, in the handover, any time that you can’t, prison officers, male, cannot strip-search females.”

(32)	Questioned as to why he did not place Ms C under observation whilst awaiting the arrival of a female officer, Mr Armstrong said:

”---you were, you could have as you indicate you could have placed the woman in an Observation cell and maintained a constant surveillance of the cell until such time as the, as another female, either police officer or Correctional officer, arrived at the prison, the Remand Centre I beg your pardon………Yeah, not quite correct.  You can put them in an Obs. cell and yes, you can sit down and watch her, but down in Level 1 you don’t, you can’t just sit there and watch a screen.  At the time there was only two of us there because the other person went on a meal break.  We have the Courts still running so you’re up and down taking inmates out to the Courts or detainees out to the Courts.  You’ve still got at that time of day especially you’ve got the kitchen coming in with all their food, so you’ve got to go out there and count the food, so, because you’ve got to actually count it and sign it these days.  One person can’t just continually just sit there and watch her because you’re doing a lot of other things.”

(33)	Questioned on his knowledge of the strip search protocol, Mr Armstrong’s evidence was:

“I agree with you a limited number, but I just find it difficult to accept that you were unaware of the protocol surrounding the searching of female detainees………I was aware that if you had a female there you couldn’t even search ‘em, but I found I was put in a spot where I could not get any female staff, and then what to do with that person while we were waiting for someone or if we had to wait for someone.  Now my main job I always believe is the safety and security of the prison, and that’s where my intention has always been to maintain that safety and security of the prison.  Now I was put on the spot.  I thought I’d done the wrong, the right thing.  Now I found out later I’d done the wrong thing, right?  But I was not aware of it.”

(34)	CM Chaplin was interviewed by the Investigator. CM Chaplin said that searching was a significant task in HRP. In the 12 months to the end of June 2013 there had been 1946 strip searches of which 267 were female. The record of interview relevantly states:

13.	CM Chaplin stated if there is no female correctional staff member on duty that the Duty Police Sergeant next door would be contacted. If the police do not have anyone available the female detainee would be sat down and would be observed.  They would wait for a female to be available. However if there were particular concerns, such as drugs or weapons, Mary Hutchinson Women’s Prison (at Risdon) would be contacted and a female corrections officer would be sent over.

14.	I asked if the requirement to request female support was routine? CM Chaplin stated it would happen quite regularly as there were only 3 female staff on the roster at HRP. He emphasised that unless a female correctional or police officer was available then “they would just not strip search”.

…

16.	I asked CM Chaplin if he was ever aware of males or females strip searching those of the opposite sex? He said “never”. Though he explained that sometimes males were required to restrain an aggressive or non-compliant female inmate. However the actual search was still conducted by a female staff member.“

(35)	A witness statement for CM Chaplin dated 20/12//2013 was tendered. Much of this statement goes to the issue of the need for a second officer to participate in a strip search. Whether or not Constable Aboud and/or CO Allen ‘participated’ in the search is a moot point. However as Mr Baker advised that this question was not relied upon to justify the termination, it is unnecessary to take the matter further. Relevant extracts from CM Chaplin’s statement include the following:

1.	Directors Standing Orders (DSOs) and Standard Operating Procedures SOPs) regulate the operations of all prisons operated by the Tasmania Prison Service. All DSOs and SOPs must be followed.
2.	DSOs and SOPs cannot cover everything and it is expected and required that correctional employees will use their discretion and judgment in response to a situation that is not directly or fully covered by a DSO or SOP.
3.	When ambiguity arises DSO’s and SOP’s often provide some guidance however employees can also discuss any uncertainty with their supervisor and colleagues as well as drawing on past practices and their common sense and judgment. Correctional staff receive extensive training and should be equipped to deal with the various situations they encounter when undertaking their duties.
4.	The DSOs for HRP are easy to follow – in particular there is no ambiguity about the requirements when searching a female detainee.

…
8.	Strip searching procedures are common knowledge amongst HRP staff.  The procedure for strip searching a female detainee is for the search to be conducted by a female officer in room with any windows covered. The second officer is to position him or herself so that they can see the first officer but not the detainee.
9.	It is important that a male is never in the same room as a female detainee is [sic] strip searched. This protects the fundamental rights and dignity of the detainee as provided for in the Corrections Act 1997.

…
12.	I would expect a Correctional Supervisor or any correctional officer, when faced with the need to conduct a search of a female detainee, to await the arrival of a female correctional officer or a female police officer.
13.	In the event that Mr Armstrong was unsure as to how to deal with the situation then he should have contacted me as his Supervisor to confirm the appropriate course of action. He is an experienced Officer and if he could not have reached me at that time he could have raised his query with other senior officers.
14.	The situation faced by Mr Armstrong arises infrequently but in every instance that I am aware of correctional employees have waited for the arrival of a female officer before conducting a search.”
(36)	CO Allen was interviewed by the Investigator. CO Allen said he was now aware of the DSO 1.11 but had not been so prior to the Code of Conduct investigation. The record of interview states:

22.	I asked him then about the circumstances if it was a male detainee and a male and female staff member was present. He explained the male would do the strip search while the female keeps the male officer in sight. I then asked what would be the process if it was a female detainee. He then explained that it would be the other way around basically with the female conducting the search.
23.	I then asked him to explain if it was not part of this training where would did [sic] you pick up that understanding that he should not personally conduct a search of [Ms C]. He stated that it was “common sense”. I then asked CO Allen how long he had been at HRP. He stated he had been at HRP for three years.  I then asked him to estimate how many strip searches would be conducted on Level 1 of the HRP during a normal shift period. CO Allen estimated that it would be 10 to 20 strip searches per shift of which 1 to 2 would be female. He then confirmed that he [sic] taken part in a number of strip searches of females but in all cases they had been undertaken by a female (correctional officer or police officer) with him in support and outside of the cell. CO Allen confirmed he would not do a strip search of a female as it was common sense not to do so.
24.	I asked him what would be the protocol if a female had to be searched and there was no female correctional officer or police officer available. He said that the detainee would be placed in a cell under observation until a female staff member could be located.”
(37)	CO Allen said whilst he had concerns about the 23 May incident, he did not raise it with anyone in TPS.

(38)	An email exchange between the Investigator and Mr Partridge, Assistant Director of Prisons, reads: 

“Greg, 

Can you confirm in response to my questions that the following are correct:

1.	CS Armstrong mentioned that it common [sic] for female staff to search as when he “had worked in RPC in visits and that it was common for females to conduct searches of males”. Is that correct? Answer. Yes, but there is always at least one staff member present who conducts the actual search and that member must be the same gender as the inmate – for example at RPC if there is only a male and female staff members present, the male conducts the actual search and the female searches the clothing outside of the cell or room. It is common practice to redeploy another member of the same gender from another area, in order for the search to be conducted by a correctional officer of the same gender as the inmate.

2.	What is the process in visits? Do male or female correctional staff ever pat down or search those of the opposite gender? Answer. Yes, either gender of staff member may conduct a pat down search.

John

John Withers”

“John 

Good to go!

G”

The Privacy Cell

(39)	One of the three specific allegations against Mr Armstrong reads as follows:

“That the strip search was conducted in a cell which was unsuitable for the purpose given that the room used for the search was under video surveillance rather than a ‘privacy’ cell.”

(40)	During the initial investigation and subsequent hearing the following picture emerges.

(41)	The Investigators report reads:

46.	On Level 1, Cell 107 was supposedly designated as a privacy cell.  This cell like all the other cells is equipped with a single CCTV camera; however viewing of any imagery was supposedly protected by a password system which was controlled by the Correctional Manager. So although it was setup to record any activity in the cell, the actual vision could not be accessed from the Control Room or Officers’ Station without approval of the Correctional Manager. Cell 107 was the only cell set up for this purpose.
47.	It became clear during a site visit during the investigation that the camera in Cell 107 could be viewed without the use of any password system. This included both the Officers’ Station on Level 1 and the Control Room. Notwithstanding this, the viewing of CCTV footage from Cell 107 is controlled to a higher degree than other cameras. On Level 1 and in the Control Room the monitors are set up to show the cells and general areas. However to look at Cell 107 an officer must deliberately switch to that particular camera.
48.	CM Chaplin advised he setup the privacy cell up when he was in HRP some five years before and was unaware when and how it was changed. The investigation also confirmed that there is no written guidance on the use of the ‘Privacy Cell’.
49.	It was clear for the interviews with CS Armstrong that the cell chosen on that day was based on providing privacy for [Ms C] away from other male inmates or detainees. Therefore there is no evidence to support allegation that CS Armstrong or CO Allen failed in any responsibilities to [Ms C] by using Cell 109, instead of Cell 107.”
(42)	From the evidence it is clear that the absence of a privacy cell was common knowledge amongst the staff. CO Allen confirmed his knowledge of this in interview. CS Armstrong said that this had been the case at least since January 2013 when he commenced at HRP. Mr Armstrong said: 

“It was a camera cell, so I wanted to sure everything was above board and I couldn’t have been accused of anything.”

(43)	It is also clear from the evidence that cell 109 (and presumably all other camera cells) could be viewed in the control room without the knowledge of the person being searched and irrespective of the gender of the officer conducting the search. CO Ellis viewed and recorded the strip search of Ms C. It is unknown whether any other staff in the control room viewed the search.

(44)	CM Chaplin told the Investigator that the privacy cell was set up when he moved to HRP some five years ago. He confirmed that it was no longer operative and suggested this must have happened when he was working out of HRP during an unspecified period. He agreed that “there were no specific protocols for monitoring, say from the Control Room, when a female is being strip searched.”

(45)	CM Chaplin advised that action was being taken to get the system changed so that a security password is required. It is unclear whether this has subsequently occurred. During the hearing Mr Baker was asked whether the Minister had a view on this issue. His response was:

“MR BAKER:  In relation to the process, procedures etcetera I’m advised that Cell 107 was in fact designated as the privacy cell and that had a camera which had a device on it which could only be accessed via the security code.  So it could not be observed by all, if you want all and sundry.  Now I understand that that in fact that camera, the camera in that 107 was not operative at the time.  Therefore, it befell Mr Armstrong or whoever it might have been, either on that day or the previous day or any other day, that they would need to use a cell which was appropriate in the circumstances.  So on this occasion Mr Armstrong chose Cell 109.  Now as I understand it as it’s been put to me there is no prohibition, no prohibition on the use of the camera in those circumstances.  However, that is not a, that is not from the Minister’s point of view, an acceptable position.  Now I understand there may, may or may not have been some remedial work undertaken in relation to fixing the privacy in relation to the camera, the operation of the camera, but I can’t comment with any certainty that in fact has occurred because I don’t know, and my colleagues obviously don’t know either.  However, in our view that does not negate the seriousness of what we believe to be the circumstances that occurred at the time.”

Submissions

Mr Tullgren, for the applicant

(46)	The primary duty of correctional officers is the maintenance of security and good order within the prison. This duty is laid down in s22 of the Corrections Act 1997.

(47)	Standing Order 1.11 is silent on the circumstances confronting Mr Armstrong. That is, upon proper inquiry, it was apparent that a female officer would not be available for an indefinite period. It was not a practical option to place the detainee under observation until a female officer was available. Accordingly Mr Armstrong exercised his supervisory discretion to undertake the search himself consistent with his primary responsibility to maintain security and good order. To not have searched the detainee would have been a breach of the relevant Standing Orders, and would have created a risk to the security of HRP, correctional staff, detainees and inmates. It would have also exposed Mr Armstrong to disciplinary action. Mr Armstrong made a judgment that the risk posed by not searching was too great. In the absence of a clear prescription as to what he should have done, that judgment was reasonably open.

(48)	It is the responsibility of the Department of Justice to give precise directions to correctional officers as to how they were to manage their primary duty in light of the absence of female officers. This it failed to do. 

(49)	The absence of directions created a ‘no win’ situation for Mr Armstrong. He was damned if he did perform his primary duty and damned if he did not by not searching the detainee. In the circumstances a reasonable person in the position of Mr Armstrong would have taken the same action to avoid risk.

(50)	Witnesses relied upon by the respondent referred to subjective beliefs as to what should have occurred. This is quite different to evidence of a breach of the standing order. No witness provided evidence of what should have happened 

(51)	The sanction of dismissal was harsh unjust and unreasonable. Even if there were grounds for disciplinary action the severity of action taken was too severe because of mitigating circumstances and past good conduct.

Mr Baker, for the respondent

(52)	Strip searching is an important function of all correctional staff at HRP. Correctional Officers exercise a significant level of power and control over inmates and detainees, and for that reason there is an explicit DSO setting out procedures for the conduct of such searches.

(53)	It is clear from the wording of DSO 1.11 that a balance between the safety, security and good order of the prison and the dignity, self-respect and privacy of the prisoner/detainee when conducting a strip search is to be sought in all situations.

(54)	There is no ambiguity in the wording of DSO clause 5.10. However a DSO cannot cover every possible circumstance and in such situations, it is incumbent on the officer to draw on training, experience and indeed, common sense. 

(55)	Mr Armstrong had several options that were available to him that would have balanced the detainee’s privacy and self-respect without compromising safety and security. They include:

•	Placing the detainee under observation until a female officer was available
•	Requesting a female Correctional Officer attend from the Mary Hutchinson Women’s Prison.
•	Requesting the female police officer ‘on the road’ be called back to conduct the search.
(56)	There were several warning signs which should have alerted Mr Armstrong that strip searching a female detainee was not a reasonable action to take. Further, it is reasonable to expect that an experienced Correctional Officer would have an understanding of the core requirements for conducting a strip search.

(57)	The applicant was afforded procedural fairness and natural justice.

(58)	The decision to terminate was valid and made on the basis on the basis of significant lapses in discretion and judgment, the lack of understanding of the magnitude of the error and that no insight or remorse was offered by the applicant.

(59)	The employer and the Tasmanian community must be confident that Correctional Officers act with appropriate care and diligence when exercising their duties and show appropriate respect to the dignity and privacy of inmates and detainees. The applicant failed to do this. The actions of Mr Armstrong have the potential to undermine public confidence in the Tasmanian Prison Service.

(60)	In all the circumstances the sanction of dismissal was not harsh, unjust or unreasonable.

Findings and Conclusion

(61)	Both parties relied on a number of authorities going to such issues as ‘valid reason’, ‘fairness’ and statutory interpretation. These authorities are well known and in the circumstances of this case I do not consider it necessary to discuss them in depth. Suffice to say that they have been considered and I am satisfied that the reasoning and conclusions in this decision are consistent with such authorities.

(62)	I turn firstly to deal with certain issues of fact.

(63)	I accept the evidence of Mr Armstrong that he was unaware of the Mary Hutchinson Women’s Prison option. The unchallenged evidence is that this was not covered in the induction/ handover process and it was not an option exercised in any previous strip searches that Mr Armstrong had been involved in. Indeed apart from identifying this as an option, the respondent failed to provide any evidence whereby this option had been utilised in the period Mr Armstrong was at HRP. In the circumstances there appears no good reason why Mary Hutchinson would emerge as an option in Mr Armstrong’s mind any more than say, approaching Glenorchy Police Station or asking the police control room to try and find a female police officer who might be in the vicinity.

(64)	Both during the investigation and the hearing Mr Armstrong was unshaken on his contention that he was unaware of any protocol or procedure to be followed in the event that a female officer was not available within a known and reasonable timeframe. Whether this belief was misplaced is another question, but on the evidence I accept that the belief was genuinely held.

(65)	I accept the respondent’s contention that DSOs cannot cover every exigency which might arise. Indeed the Secretary acknowledges that there are circumstances in which a male officer might be involved directly in the strip search of a female (e.g. repeated self-harm attempts, violence).

(66)	I readily accept that DSOs, including DSO 1.11, require the exercise of discretion and Judgment. I am also of the view however, that when an officer does exercise such judgment, but makes a wrong call, it should not necessarily be viewed in the same light as an officer who deliberately breaches and explicit written direction.

(67)	Clause 5.10 of DSO 1.11 is not ambiguous. What is left unsaid is a direction as to what is to occur in the event that female (or male as the case may by) is not available. It is at this point that training, judgment and experience becomes relevant. Whilst the DSO could, with the benefit of hindsight have been drafted with greater precision, it would inevitably leave questions unanswered.

(68)	An analogy can be drawn with s22(4) of the Corrections Act 1997 which reads:

“A search or examination of a female visitor under this section is to be made by a female officer in the presence of females only.”

(69)	This section is clear and unambiguous. Notwithstanding it does raise a number of unanswered questions. They include:

•	Does this mean by inference that male visitors may be searched by female officers?
•	Whilst this section clearly refers to ‘visitors’ is there an extension by implication to inmates and detainees?
•	How does this section sit with the evidence of Mr Partridge who states that “either gender of staff member may conduct a pat down search”?
(70)	The point I make is that silence in a regulatory framework inevitably and unavoidably leads to more questions. This was the situation Mr Armstrong found himself in. He had no direct experience to call upon and made a judgment call.

(71)	In my view he made the wrong call. DSO 1.10 is drafted with sufficient precision, notwithstanding aspects left unsaid, for an experienced officer to conclude that a male should not conduct a strip search of a female detainee. In my view it was a serious error of judgment, albeit not made with deliberate intent to breach any regulatory requirement. 

(72)	I accept that the serious error of judgment breached the spirit and intent, if not the letter of DSO 1.11. I conclude that the findings of the Secretary, to the extent that one or more elements of the Code of Conduct were breached, was open.

(73)	I further conclude that absent any mitigating circumstances, the actions of Mr Armstrong would amount to a valid reason for termination. 

(74)	I turn now to the question of fairness.

(75)	No issue has been raised concerning procedural fairness and/or natural justice. From my own observations Mr Armstrong was afforded procedural fairness.

(76)	It must be recognized that a strip search, even in the most optimum circumstances, inevitably results in a loss of dignity. It is nonetheless a necessary procedure within the prison system.

(77)	I am satisfied on the evidence that, whilst Mr Armstrong made a wrong judgment call, he was motivated only by his belief as to the primacy of the maintenance of security within the prison. There was certainly nothing for Mr Armstrong to personally gain from his actions and I am satisfied that he did not intend any harm or adverse outcome on the prison system or the detainee.

(78)	Mr Armstrong provided an explanation as to the impracticability of maintaining Ms C under observation until a female officer arrived. On its face this explanation was plausible and not countered by the respondent.

(79)	Allowing for my opening remark about the inevitability of dignity loss, I have concluded that Mr Armstrong conducted the search with as much sensitivity and discretion as was practicable in the circumstances. There was no evidence of the wrongful exercise of a power imbalance and I am quite satisfied that the search was not conducted with the intent “to agitate, punish or cause indignity to prisoners/detainees.”

(80)	The respondent has made much of Mr Armstrong’s request for Ms C to ‘squat’. This requires closer examination.

(81)	The explanation provided by Mr Armstrong is found earlier in this decision (paragraph 17).

(82)	On investigation Mr Withers found that TPS training regimes does not distinguish between males and females and that “the requirement for prisoners to squat during the strip search process is part of the training doctrine.” 

(83)	And further:

“Therefore based on the material available, CS Armstrong was following appropriate guidance when he asked [Ms C] to squat. This is regardless as to whether he remembered being trained in searching techniques or not.”

(84)	I also conclude that the fact that Ms C remained in the squat position for two minutes was no more than a misunderstanding on Ms C’s part. By handing Ms C her knickers, Mr Armstrong intended that she get dressed. As soon as he realised that this had apparently been misinterpreted, he quickly remedied the position.

(85)	Whilst I share the Secretary’s view as to the demeaning nature of the squat instruction, it must be recognised it is part of the training regime. I do not share the Secretary’s conclusions as to this aspect of the incident.

(86)	I turn now to the issue of the privacy cell. 

(87)	The Commission was not informed as to when or why the privacy cell facility was disabled. Short of sabotage (of which there is no evidence), I can only assume that it was a management decision.

(88)	The reality is, and was in the case of Ms C, that strip searches could (and perhaps still can) be readily viewed by officers in the control room without restriction or protocols applying. I find this to be a quite extraordinary circumstance and, in terms of public confidence, potentially far more serious than the actions of Mr Armstrong. At least with a strip search the detainee knows who is conducting it, but they have no knowledge of who is potentially viewing, recording and perhaps copying the procedure in the control room.

(89)	I am further surprised at the apparent lack of urgency the respondent attaches to this situation. In his interview on 10 July 2013, CM Chaplin said that action was being taken to restore the security password. In his determination dated 1 November 2013, the Secretary notes that “this is a matter I will raise with the Director of Prisons to ensure the appropriate infrastructure is in place….” This implies that it had not been remedied at that point. During the hearing the respondent was unable to advise the Commission as to whether the privacy cell had been reinstated.

(90)	The privacy cell issue does not excuse or condone the actions of Mr Armstrong. It does however very pointedly go to the environmental context in which he was working.

(91)	The uncontested evidence is that Mr Armstrong has an unblemished employment record over 14 years. I disagree with the Secretary as to the likelihood of reoffending. Given his unblemished employment record, and with the benefit of seeing and hearing the evidence of Mr Armstrong during the hearing, I conclude that the likelihood of reoffending is negligible.

(92)	Mr Armstrong is not without blame. He made a serious error of judgment which appears inconsistent with his employment record. There are however significant mitigating and environmental factors outlined above. Weighing these factors, I conclude that termination is an unfair and quite disproportionate response to the seriousness of his actions.

(93)	I propose to order re-employment from a prospective date. This does not include an order for payment of lost wages in the intervening period. This in itself amounts to a significant financial penalty.

(94)	The period between the date of termination and the date of re-employment will not break continuity of employment for leave purposes but will not count for accrual purposes. There will need to be a reconciliation of any leave accruals already paid out.

(95)	Demotion to the level of Correctional Officer was considered by the Secretary and rejected. It is arguably beyond the power of the Commission to make such an order but it is still an option open to the Secretary. I make it clear that if it was within my power, I would make an order to that effect. Should the Secretary reconsider this option, my own view is that it should not necessarily be a permanent arrangement. Consideration of whether Mr Armstrong is restored to a supervisory role at some point in the future would properly be based on performance.

(96)	It is also open for the respondent to implement whatever training/counselling mechanisms it considers appropriate.

Order

Pursuant to section 31 of the Industrial Relations Act 1984 I hereby order that:

1.	Mr Armstrong be re-employed not later than 6 February 2014.
2.	The period between date of termination and date of re-employment shall not break continuity of employment for leave purposes but will not count for accrual purposes.
(97)	Pursuant to section 21(2)(c) of the Act I refrain from further hearing and close the file.

Tim Abey
PRESIDENT

Appearances:
Mr P Tullgren for the applicant with Mr R Armstrong
Mr P Baker with Mr Nigel McCulloch for the respondent

Date and place of hearing:
2013
22 November 
2014
16 January
Hobart