T12761
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Alan Burton and The Minister administering the State Service Act 2000
Industrial dispute - mode, terms and conditions of employment - demotion - State Service Act - amendment to application - recommendations issued REASONS FOR DECISION [1] On 21 August 2006, Alan Burton, (the applicant), applied, pursuant to s29(1A) 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/Tasmanian Prison Service/Department of Justice (the respondent) arising out of a dispute in relation to termination of employment and the entitlement to long service leave. The application was subsequently amended, by agreement, to delete the reference to long service leave. The application has also been amended, on application from the applicant, to be a dispute brought under s29(1) of the Act, the reasons for granting the application to amend are given below. [2] A hearing commenced in Hobart on Thursday 24 August 2006. There was an unsuccessful attempt to settle the dispute through the conciliation process. The hearing continued on 18, 19, 20, 27 and 28 September 2006, with an inspection on 18 September. Written submissions were received on 5 and 6 October 2006. [3] At the hearing Mr M Johnson and Ms K Jackson of the Community and Public Sector Union (State Public Services Federation Tasmania) Inc. appeared for the applicant and Mr P Baker, with Mr B Smith and Mr G Barber, represented the Minister. Mr P Turner was granted leave to appear on behalf of the respondent on 27 September 2006. BACKGROUND [4] This dispute concerns sanctions imposed on Mr Alan Burton arising as a result of events on 21 February 2006 at the Risdon Prison Hospital. [5] Mr Burton has 25 years of experience within the Tasmanian Prison Service. As at 21 February 2006 he held the position of Correctional Manager Grade 1 at the Risdon Prison Hospital. On 13 February 2006 he was appointed to the position of Correctional Manager Operations at the new prison, to take effect once the facility was operational. [6] Following the incident on 21 February it appears that a complaint was made by one of the people involved. This led to an investigation that ultimately resulted in Mr Burton being demoted to the rank of Correctional Officer Grade 4. There are three levels of correctional officers in the Correctional Officers' Agreement 2005 - in ascending order they are: Correctional Officers, Correctional Supervisors and Correctional Managers. The level to which he has been demoted is the level at which a correctional officer would expect to be after three years on the job post-probation. [7] The events of 21 February concerned an inmate, to be known as "inmate E", who is serving a long sentence for murder. He has a history of escape attempts, hostage taking and violence toward other prisoners and custodial staff. Since May 2005 he has been housed as a special needs prisoner at the prison hospital. His behaviour is challenging and there is a continuing risk that he might harm himself or others. [8] In September of 2005 a document was prepared setting out a structured program of activities for inmate E, one of the aims of which is to reduce the risks he presents to himself and others. This has been referred to as his "case management plan". It is one of the first such management plans at Risdon Prison. It sets out goals and a program of educational and physical activities, counselling support and the involvement of Danny Jex as custodial staff case manager. Accompanying it is a list of agreed cell contents, signed by inmate E, Kate Fennell, State Manager, Correctional Health Services and Gregory Partridge, Assistant Director of Prisons. Part of the management plan involves a "contract" with inmate E, the terms of which include an undertaking by him that he will abide by all rules relevant to other prisoners. [9] Under the service agreement that underpins the relationship between Department of Justice and Department of Health personnel at the prison, Department of Health personnel are required to comply with all lawful directions given by correctional staff in relation to security. [10] On 21 February this year inmate E was being returned to the prison hospital after a period in Division 8, a punishment division where he had been temporarily incarcerated as the result of behaviour directed at Mr Burton. It is a requirement, arising from a coronial inquiry into deaths in custody, that inmates within the hospital remove their shoelaces but inmate E refused to follow orders to relinquish his. [11] Mr Burton informed his superior officer, Mr Charlie Micallef, the manager of the prison, of the situation. Mr Micallef deployed two members of the security unit, a response group, to the hospital. The security officers sought and were granted permission to take gas and batons with them. [12] Inmate E, along with other prisoners and staff, was in the exercise yard attached to the hospital. Mr Burton gave orders to subordinate officers that all prisoners be returned to their cells and that staff evacuate the exercise yard, consistent, he claims, with an accepted procedure known by the acronym ICE, which stands for isolate, contain and evacuate. A number of staff, both custodial and health, left the yard, but two health department personnel remained, as did inmate E. They were clinical nurse Fiona Montgomery (his primary nurse) and Ms Fennell, both of whom had worked with inmate E and had developed a good rapport with him. They had gone to the prison hospital specifically because he was returning there that day. They had keys to the gate to the exercise yard and personal duress alarms. It is the applicant's contention that the two nursing staff chose to remain in the yard with inmate E. [13] When the response group arrived Mr Burton handed control over to them. The situation was resolved peacefully with inmate E eventually giving up his shoelaces and returning to his cell. As is usual practice following such an incident, he was "locked down" in his cell pending an investigation into the events. Reports were compiled and he was cited for a number of breaches of the Corrections Act Schedule 1. [14] After the incident there was a "debriefing" of the correctional officers involved, including Mr Burton and Mr Micallef. The emphasis at that meeting was the custodial officers' concerns about inmate E. They viewed him as a safety hazard and concerns had previously been raised about him being housed at the hospital. Following the debrief, Mr Burton issued a memo setting out what was to happen during inmate E's lockdown period. Mr Burton claims that the memo was prepared as a result of instructions given to him by Mr Micallef. [15] Shortly after the events of 21 February 2006 Ms Fennell discussed Mr Burton's actions with Mr Graeme Barber, Director of Prisons. Mr Barber and Mr Partridge initiated an internal investigation, which was conducted by Mr Peter Rollinson, General Manager of the Risdon Prison Complex and completed by 2 March 2006. [16] Aspects of the day's events that were investigated included: the fact of inmate E being placed in a cell that was not his usual cell; the locking of the exercise yard gate when the two health staff were still in there; the issuing of the memo as to the treatment of inmate E; the fact that he was locked down for two days; the condition of the cell; and the cell contents (which were less than those allowed in his case management plan). Mr Burton appears to have been held responsible for most, if not all, of these occurrences. [17] The Secretary of the Department examined the report and advised Mr Burton that he may have breached the State Service Code of Conduct and there would be an investigation. Mr Burton was suspended from duty on 6 March 2006. [18] Mr Burton sought a review of the suspension by the State Service Commissioner, Commissioner Robert Watling, pursuant to s50 of the State Service Act 2000. Following a conference the notice of suspension was revoked on 31 March 2004. Mr Burton was then re-assigned to alternative administrative duties at the Tasmanian Registry of Births, Deaths and Marriages, as from 3 April 2006, with his salary maintained at his previous level. [19] The Secretary engaged an external consultant, Mr Keith Scott of CaseAction, to investigate the incident. Mr Burton was advised that information from CaseAction's report would be taken into account when the Secretary made his determination as to whether there had been a breach of the Code of Conduct. Mr Burton was provided with a copy of the report dated 26 April 2006 and invited to respond, which he did, in writing on 18 May 2006. [20] The Secretary then determined that Mr Burton had breached the following State Service Codes of Conduct and on 2 June 2006 imposed the sanctions that are the subject of this dispute.
[21] The State Service Commissioner reviewed that decision. There was a hearing on 7 August 2006 and his decision was published on 11 August 2006. Commissioner Watling said at paragraph 10 of that decision that when reviewing the matter he took into consideration the investigation and report by CaseAction, the records of interview attached to that report, and Mr Burton's response to it. Commissioner Watling upheld the determinations in relation to breaches of ss9(2), 9(6) and 9(13) and dismissed 9(4). He found that it was "reasonably open" to the Head of Agency to reach the conclusions he had and that: "I would have to conclude it would not be appropriate to interfere with the sanction imposed by the Head of Agency". The applicant contends that the review conducted by the State Service Commissioner dealt only with the process and did not go to the merits of the case. [22] In essence, the remaining charges against Mr Burton were that he caused the gate to the exercise yard to be locked, thus placing Ms Montgomery and Ms Fennell in danger, and that he disregarded the plan approved by Mr Partridge for the management of inmate E. It is as a result of these that the sanctions were imposed. [23] On 16 August 2006 the Secretary wrote to Mr Burton advising him that his classification level would be reduced to Correctional Officer Grade 4 effective from Monday 21 August 2006 on a base salary of $45,231 per annum and that he would be required to undergo counselling. His previous salary as Correctional Manager Grade 1 had been $64,915, a reduction in salary of $19,684 per annum. The applicant has computed that the sanction will amount to $843,642 over his projected working life. The demotion also has the effect of removing all supervisory responsibility from Mr Burton. [24] The applicant contends that he had the discretionary power and the authority to order the locking of the gate. He did so exercising his experience, judgement, and the principles of ICE. He also contends that his treatment of inmate E was based upon reasonable and equal treatment, standing orders and the instructions of his superior, Mr Micallef. [25] Mr Burton has challenged the demotion, claiming that the sanction is harsh and unjust. He is seeking reinstatement to the position of Correctional Manager Level 1. JURISDICTIONAL ISSUES [26] On the first day of proceedings Mr Baker foreshadowed that the respondent would be raising some preliminary matters; namely that they would be arguing that the application was lodged out of time and that a demotion was not a dismissal. Mr Baker told the Commission that Mr Paul Turner from the Office of the Director of Public Prosecutions would be presenting the threshold arguments. Because Mr Turner was unavailable to present those arguments at the time scheduled the parties agreed that he would make submissions after the evidence was presented. [27] In the event, Mr Turner's submissions were not confined to the issues that had been foreshadowed. He presented arguments about the form of the application that would, in my view, have been fairer to the applicant had they been put at the beginning of the proceedings. [28] The application was made under s29(1A) of the Act, which relevantly reads:
[29] Mr Burton completed an application form provided by the Commission. It is not a prescribed form, and is intended to assist applicants in framing their applications. Mr Turner for the Respondent [30] Mr Turner submitted that Mr Burton is not a former employee therefore there is no proper application before the Commission and it should be dismissed. He contended that the Commission is restricted to the application before it, and the application can only be considered in relation to s29(1A) which is an application for a hearing by a former employee. Mr Turner said that the Commission cannot depart from the application that has been made without there having been anything sought by any other party. [31] In Mr Turner's submission, the respondent had conducted their case exclusively on the basis of what had been presented in the application and the Commission was unable to embark on an excursion of its own. As authority, he cited the case of State of Tasmania v Beadle [2001] TASSC 122 (Beadle), which was a reference before the Workers Rehabilitation and Compensation Tribunal. On appeal to the Full Court, the Chief Justice said that a party is entitled to know the case against it when it comes to the Tribunal; it is not up to the Tribunal to embark upon a wide-ranging inquiry for the purpose of determining what the dispute was, and resolving it. The applicant was confined to the terms of the application. It should be the same in this case. [32] The question of jurisdiction was considered in passing by Abey C in the case of Billett v The Minister Administering the State Service Act, T1265 of 2006 (Billet) where the Deputy Principal of a state school was demoted to a lower teaching classification level. Abey C said at paragraph 114:
[33] In this case, Mr Turner submitted, the cases referred to in Billet are irrelevant because, as a member of the state service, Mr Burton is subject to the State Service Act. Section 9 sets out the State Service Code of Conduct. Mr Burton was found to have breached that code. The Minister, or through delegation, other officers, may impose sanctions where there have been breaches of the code. Section 10 - Breaches of Code of Conduct provides:
[34] The State Service Commissioner has no power to review a termination of employment. Mr Burton presented his case to the State Service Commissioner, received an unfavourable determination, and has now dressed up the circumstances so as to portray them in the Commission as a termination of employment. [35] The terms of the State Service Act apply to the employment of permanent state service employees, regardless of the terms of any contract of employment. Authority for that is a decision of the High Court in Director General of Education and Ors v Suttling (1987) 162 CLR 427 (Suttling). [36] Brennan J said:
[37] The State Service Act permits the Secretary to do as he has done, ie to make a finding of a breach of the code of conduct and to impose a sanction. A reclassification is permitted under the State Service Act. That has been reviewed by the State Service Commissioner and dismissed. That should be the end of the matter. [38] If there has been no termination of employment under the State Service Act then Mr Burton is not a former employee and there is no termination under s29(1A) of the Act. Mr Turner submitted that the application is incompetent and should be dismissed. Mr Johnston for the applicant [39] Mr Johnston submitted that the fact of the State Service Act making up part of the suite of employment arrangements for Mr Burton does not mean that the sanctions imposed are not subject to a review on merit. The review by the State Service Commissioner was purely based on the report by CaseAction, which provided an incomplete version of events. The merits of the case have not been tested. The test applied by the State Service Commissioner is different to the Industrial Commission's tests, as can be seen from the Billet case. The State Service Commissioner went to process matters and determined that the actions of the Secretary were reasonably open to him, but he did not examine fairness and equity. As a result of that decision, the Secretary effectively ended Mr Burton's employment as a correctional manager and re-employed him as a base grade custodial officer. The demotion took place on 21 of August 2006 and the re-engagement took place on the same date. Until then Mr Burton had continued to be paid as a correctional manager. Once the demotion took effect that brought the matter within the Commission's jurisdiction. Whether application can be amended [40] As a result of Mr Turner's submissions I invited the parties to consider whether Mr Burton should apply to amend his application to bring it under section 29(1) of the Act, which is a provision enabling current employees to bring a dispute before the Commission. [41] I observed that the parties had left me in absolutely no doubt that the dispute was about the demotion of Mr Burton and all of the evidence had been in relation to the events of 21 February 2006 and what ensued thereafter. Mr Baker said on the first day of hearing:
[42] I referred the parties to a decision of the Full Bench of the Commission in T9620 of 2001 Ken Farrell and The Crown in Right of State of Tasmania Department of Premier and Cabinet Office of the Premier and the decision of the Supreme Court, R v Tasmanian Industrial Commission Farrell, Kenneth James; ex parte [2002] (Farrell) in which Crawford J upheld the Full Bench decision. [43] In the circumstances of that case the applicant was given the opportunity to amend his application. Whilst Mr Farrell refused, preferring to rely on the general provisions in the Act requiring the Commission to act according to equity, good conscience and the merits of the case without regard to technicalities or legal forms, the issue of amending the application was considered by the Full Bench of the Commission and by Crawford J. [44] I reserved my decision on the question of whether the application should be amended, and gave Mr Baker seven days in which to present written submissions on that point, in particular, to address any disadvantage to the respondent in respect of evidence already before the Commission. I allowed a further seven days for the applicant to respond. Mr Baker's written submissions for the respondent [45] Mr Baker submitted that it would be unfair to the respondent to permit any amendment to the application. The case had been prepared to meet a claim of unfair termination only. Beadle is authority for the proposition that a respondent to a proceeding is entitled to know at the outset what case it is obliged to meet. At no time was it suggested that there would be any case put other than one relating to termination of employment. [46] Mr Baker contended that the dispute could not be dealt with as an "industrial matter" because it was intrinsically related to the appointment of Mr Burton as Correctional Manager, Operations [to which he was appointed on 13 February 2006]. He said that appointments or promotions, other than in respect of the qualifications required for advancement are excluded from the Act and are not industrial matters. Appointment does not mean the simple act of engagement; authority for that being the Full Court of the Supreme Court of Tasmania decision in Jan Saarinen v University of Tasmania (1997) (Saarinen). All aspects of the dispute in the present proceedings relate to Mr Burton's appointment as Correctional Manager and/or to his appointment to the position that he presently holds. Even if the application by Mr Burton is allowed to be characterised as one falling under s29(1) of the Act, the Commission has no jurisdiction and must dismiss the application. Mr Johnston for the Applicant [47] Mr Johnston said that nothing in the respondent's submission went to the question of the evidence already given and any disadvantage to the respondent. Very little of the submission goes to the question of the application to amend. [48] The reference to Beadle is misleading. In that case, as observed by Underwood J, an entirely new and different claim would have come into existence had an amendment been granted. This is not the case in the matter at hand. [49] The respondent has not shown that they would have presented anything any differently had the application been made under s29(1) instead of s29(1A). Underwood J said in Beadle that had the application to amend been granted the employer would have been prejudiced by being denied statutory provisions. That is not the case here. [50] The contention that this matter is related to the appointment of Mr Burton to the position of Correctional Manager Operations is ridiculous. There is no connection between the events of 21 February and the gazetting of Mr Burton as Correctional Manager Operations. This case has never at any time been concerned with the appointment of Mr Burton to the position of Correctional Manager Operations. [51] The case of Saarinen is irrelevant. That case dealt with the failure to reappoint an employee after a series of rolling contracts. Application to amend granted [52] Mr Turner argued that s29(1A) allows a former employee to apply to the Commission for a hearing in respect of an industrial dispute arising out of the termination of the employment of the former employee and that as Mr Burton is not a former employee there is no proper application before the Commission. [53] Section 29(1) allows for a current employee to bring a dispute in respect of an industrial matter. [54] Section 3 - Interpretation - defines "industrial dispute" as inter alia:
[55] Put simply, s29(1) allows current employees to bring a dispute about an industrial matter before the Commission, including a dispute relating to termination of employment, and s29(1A) allows former employees to do so (but with limitations). It is a fact that Mr Burton is a current employee of the state service. [56] In my view, it is unreasonable for the respondent to argue that the applicant is a current employee and at the same time claim unfairness if the claim were brought under the provision that allows a current employee to do so. It is clear that the respondent has prepared its case on the basis that the applicant is a current employee, as that is what they have argued. In the circumstances of this case, I can detect no prejudice to the respondent if the application to amend were to be granted. [57] Even if the dispute is not about a termination of employment, it is still a dispute about a matter "pertaining to the relations of employers and employees". If the demotion in Mr Burton's case does not constitute a termination of employment it is nevertheless a dispute relating to "the mode, terms and conditions of employment". Section 29(1), unlike s29(1A), does not limit the scope of the application beyond requiring that the dispute be a dispute about an industrial matter. The Commission has jurisdiction to hear Mr Burton's application if brought under s29(1) of the Act without any necessity to first determine that there has been a termination of employment. [58] If the dispute is about a termination of employment, then it is still able to be dealt with under a s29(1) application because the act allows a current employee to bring an application in relation to termination of employment. An industrial matter includes a dispute relating to "the termination of an employee or former employee." [59] The Commission is not confined to the specific claim made. Section 20(3) provides:
[60] Crawford J, in Farrell's case said that s20(3) might have assisted Mr Farrell had there been jurisdiction to hear his case, but there was not. His Honour said at paragraph 28:
[61] Mr Turner argued that s20(3) did not allow me to depart from the application which was made. He cited Beadle as authority for that proposition. Beadle was a case before the Workers Rehabilitation and Compensation Tribunal and I note that there is no similar provision to s20(3) in the Workers Compensation and Rehabilitation Act. This case can be distinguished from Beadle, in which compensation was sought for a medical condition that was not the condition for which the claim was originally made and that, had the application to amend been granted, "an entirely new claim would come into existence." In this case it has been clear from the beginning of the proceedings what the dispute was about; it is and always has been about the demotion of Mr Burton, whether characterised as a dismissal or not. It has been clear from the outset that the remedy Mr Burton seeks is reinstatement to his former position as Correctional Manager Grade 1. [62] Mr Turner said that the respondent had conducted its case exclusively on the basis of what was presented in the application that was made. The case to that point had been confined to the presentation of evidence and that would have been the same regardless of whether the application was made under s29(1) or s29(1A). The evidence about the events is the evidence about the events. The jurisdictional argument was not raised until after the evidence was given. I invited the respondent to demonstrate where the evidence would have differed had the application been made under s29(1) rather than s29(1A). Despite being given seven days to respond, the respondent made no submissions on this point. [63] Amending the application does not change the subject of the dispute, the evidence, or the remedy sought. Mr Burton is a current employee and there is jurisdiction to hear and determine his case under s29(1) of the Act. I have decided that the application should be amended in the manner sought by the applicant, that is, that the dispute is a dispute brought under s29(1) of the Act. Other jurisdictional issues raised Appointments and promotions [64] In s3 of the Act - Interpretation - the definition of "industrial matter" excludes a number of matters, including at (i):
[65] Mr Baker submitted that the circumstances claimed by the applicant to have been a termination of employment (however characterised) are intrinsically related to the appointment of Mr Burton as Correctional Manager Operations in the new prison complex, a position yet to be taken up. I reject this. The dispute is without doubt about Mr Burton's demotion from his previous position as Correctional Manager Grade 1 to Correctional Officer Grade 4 and nothing to do with his having just been appointed to a new role in the new prison facility. [66] Mr Baker also seems to be arguing that the dispute is about Mr Burton's appointment to the position he presently holds, that is, the position he was demoted to - Correctional Officer Grade 4, citing as authority the Supreme Court of Tasmania in Saarinen in which, he said, the Full Court found that appointment does not mean the simple act of engagement. [67] In Saarinen, Cox J, in a dissenting judgment as to whether or not the failure of the University of Tasmania to reappoint Ms Saarinen to a position constituted an "industrial matter" under the Act as it was then, examined the question of the Commission's jurisdiction in relation to appointments and promotions. He said:
[68] Conversely, demotion must connote a step or steps backwards within an already established and subsisting employment relationship. The definition in the Act is confined to appointments and promotions. In my view, if the definition was intended to exclude demotions from being industrial disputes then it was open to the Parliament to say so. It did not do so. [69] Wright J, in Saarinen, quotes from the Hansard record in the House of Assembly on 10 April 1984, when the Minister said in relation to whether appointments and promotions should be included or excluded from the Act:
[70] The State Service Act public sector review provisions in relation to appointments and promotions makes it clear that an appeal can only be brought by a person who has been an applicant for that appointment or that promotion. In my opinion, Parliament intended the promotions and appointments exclusion to prevent applications being made to the Industrial Commission by employees, whether private or public sector, who are aggrieved at not being appointed or promoted to a position they have applied for. [71] I find that the demotion of an employee is not excluded from the jurisdiction of the Commission. The State Service Act [72] The Commission has jurisdiction to hear and determine industrial disputes pertaining to the relations of employers and employees. Because the State Service Act allows for sanctions to be imposed that does not mean that the sanctions cannot give rise to an industrial dispute, to be determined on its merits. [73] In the case of Suttling cited by Mr Turner, Brennan J said that it is not open for a state servant to contract out of the statutes. That is certainly the case. There is no suggestion that the terms of the State Service Act do not apply to Mr Burton. A state service employee may elect to have their matter heard by either the State Service Commissioner or the Industrial Commission, or both (excepting in the case of unfair dismissal which must be heard by the Industrial Commission). I note that Mr Baker said:
[74] and that:
[75] Mr Baker argued that this matter has already been heard and previously determined by the State Service Commissioner in accordance with the provisions of the State Service Act and that these proceedings are a "de facto" appeal of that decision. He submitted that the application should be dismissed under s21(c)(ii) of the Act which provides: "that further proceedings are not necessary or desirable in the public interest." [76] Mr Baker said that the State Service Commissioner reviewed the procedures of the investigation undertaken in relation to the determination of whether or not Mr Burton had breached the Code of Conduct in the State Service Act and also considered whether the sanction imposed was commensurate with the breach of the code. He found that the sanctions were "reasonably open" to the Head of Agency and that it "would not be appropriate to interfere with the sanction imposed by the Head of Agency." [77] It is not the role of this Commission to review a decision of the State Service Commissioner. It is the role of the Industrial Commission to settle an industrial dispute according to equity, good conscience and the merits of the case. I agree with Mr Johnston's submission that the proceedings before the Commission are not simply a rerun of the case before the State Service Commissioner. [78] The applicant has the right to bring a dispute about an industrial matter before this Commission and to be heard. Mr Burton was not demoted until after the hearing by the State Service Commissioner. The demotion of Mr Burton from Correctional Manager Grade 1 to Correctional Officer Grade 4 took effect on 21 August 2006. The application to the Industrial Commission was made on that same date. The fact of the review by the State Service Commissioner does not outweigh the applicant's right to have his dispute heard by the Tasmanian Industrial Commission. I reject the application to dismiss under s21(c)(ii) of the Act. [79] Whether the demotion from Correctional Manager Grade 1 to Correctional Officer Grade 4 is so severe that it so significantly alters the contract of employment that it becomes a termination of employment is a question that was briefly addressed by the parties in submissions. In the event, the amendment to the application so that it was brought under s29(1) makes this question irrelevant. The demotion is an industrial matter pertaining to relations between employers and employees related to the mode, terms and conditions of employment and it is not necessary to characterise it as anything more than that. I note that the very large reduction in remuneration and status is such that it is a significant alteration to the terms of employment. THE EVIDENCE Witnesses for the applicant were:
Witnesses for the respondent were: Mr Graeme Leslie Barber, Director of Prisons [80] The following is a summary of relevant parts of the witness evidence. For the Applicant Alan Burton [81] Mr Burton's evidence was that on 21 February 2006 at about 1.15 inmate E was returned to the prison hospital from Division 8. He first found out inmate E was returning there at about 12 noon that day. He issued no instructions to any staff to place him in any particular cell and he was not at the hospital when he was received into it. [82] At about 1.45 pm, Custodial Officer Smith told him that inmate E had refused to remove his shoelaces, which is a standard requirement. CO Smith reported that he was verbally abusive and was in the exercise yard with the rest of the inmates. Mr Burton testified that he then telephoned Mr Micallef and informed him of the situation telling him that he intended to go and ask inmate E to comply with the instruction to remove the shoelaces. He went to the exercise yard and spoke to CO Armour who told him that inmate E had been demanding and abusive regarding his property and cell allocation. Inmate E was in the yard and talking to Fiona Montgomery and Kate Fennell. Mr Burton asked him twice for the shoelaces and on the third occasion issued an order. Inmate E said: "No, you can get fucked". Whilst inmate E appeared calm he was verbally abusive and non-compliant. He told inmate E that he was the same as other prisoners and the same rules applied to him as to everyone else; he did not swear at him that he was aware of. [83] Non-compliance with the instruction was a breach of Schedule I of the Corrections Act. Mr Burton said that he then instructed COs Smith and Armour to lock down all prisoners, adhering to the ICE principle as required by the Incident Management Framework. He went back to his office to brief Mr Micallef and to request additional staff, leaving COs Smith and Armour to secure the prisoners. [84] Mr Burton said that when he returned to the area he was advised that Ms Montgomery and Ms Fennell were still there despite the instruction to leave. He asked and was informed that Ms Montgomery had her personal alarm and keys with her. He said:
[85] In cross-examination, he said that Ms Fennell and Ms Montgomery chose to remain in the yard with inmate E.
[86] Mr Burton was asked:
[87] He was asked what he said to Mr Smith:
[88] Mr Burton said that he stayed in the area adjacent to the yard (the day room) where he could see and hear the people in the yard. There was physical and remote surveillance at all times and it would only have taken him seconds to get into the exercise yard. He instructed the two officers to monitor the CCTV in the control room. [89] In his opinion, the situation would have escalated had he sent officers in to forcibly remove Ms Montgomery and Ms Fennell. Mr Burton said that he took a number of factors into account when he made the decision, including the mood of the prison hospital, the rest of the inmates concerned, the staff concerned and the inmate in question. There was a peaceful resolution and he believed that was a direct result of the strategy he deployed on the day. [90] Officers Granquist and Houstein of the security unit arrived approximately ten minutes after the gate was locked; Mr Burton handed control over to them and they went to the yard. A few minutes later inmate E gave his shoelaces to Mr Houstein, the gate was opened and he was secured in his cell. [91] A debriefing was conducted and in attendance were COs Micallef, Goodwin, Voss, Yapp, Smith, Armour and Ransley plus Mr Burton. Concerns about inmate E's constant non-compliance, threatening and abusive behaviour and his being permanently housed at the hospital were raised. There was some talk of industrial action and Mr Yapp attended the meeting in the capacity of union delegate.
[92] Mr Burton's evidence was that Mr Micallef issued instructions regarding inmate E which were intended to be short term and in the context of an investigation the next morning. These were:
[93] Mr Burton said that the standard operating procedure following such an incident is that the prisoners are locked down and then released after a cooling off period. A report form is submitted and if the prisoner is found guilty of offences then they are punished. Someone is nominated to be the investigating officer. [94] Mr Burton's evidence was that all staff reports were completed by 9am the next morning but the investigation that was to have been carried out by Mr Micallef did not eventuate. He made several phone calls to Mr Micallef the next day to ascertain the status of the investigation.
[95] There was a meeting the next day between Mr Micallef, Ms Fennell and Mr Burton in her office. Mr Micallef told Ms Fennell that Mr Burton did not make the decision to lock down inmate E. Ms Fennell raised no concerns with him as to his behaviour the previous day. She had never raised concerns about his treatment of inmate E with him directly. [96] Mr Burton testified that he was aware of the content of the management plan for inmate E, but that he did not know the detail. He was out of the state when the plan was prepared. He had had brief discussions with Senior Custodial Officer Jex regarding the management of inmate E. He said that he had been left out of the loop in relation to the management of inmate E. [97] Mr P Rollinson conducted an internal investigation into the incident of 21 February at the request of Mr Partridge and he interviewed Mr Burton who heard nothing more until Mr Micallef gave him a Notice of Suspension and a Notice of Investigation on 16 March 2006. Mr Eggleston [98] Nurse Eggleston's evidence was that on 21 February he was in the yard conducting a head count. He noticed Ms Fennell standing close to inmate E and talking to him. [99] He saw Mr Burton and two other officers approach inmate E. Mr Eggleston was within ten feet of them and could hear them clearly. Mr Burton asked him to remove his shoelaces and hand them over. The inmate was being verbally aggressive and the officers withdrew. Mr Eggleston said that they were trained to back off when an inmate was being aggressive and that is exactly what Mr Burton did. [100] Mr Eggleston said that inmate E's exact words to Mr Burton were:
[101] He described Mr Burton's manner in issuing the order as:
[102] Mr Eggleston remained in the yard with ten to fifteen other inmates and nursing staff. A short time later Officer Smith and others came into the yard and began returning prisoners to their cells. Mr Eggleston was about seven meters from the gate and he heard the order to vacate the yard.
[103] Mr Eggleston left the yard to escort two prisoners to their cells, and then returned to the yard. It was then empty except for inmate E, Ms Montgomery and Ms Fennell, who were standing close to inmate E and talking quietly to him. The door to the yard was locked. [104] Mr Eggleston returned to the nursing station and stayed there, locked in, as is common practice, until the situation was resolved. [105] He said that at some later stage, after inmate E was returned to his cell, Ms Montgomery and Ms Fennell came into the nursing station.
[106] His evidence was that he had known Mr Burton since 1983 and knew him to be a very fair, honest and compassionate officer who did not tolerate nonsense from others and who was objective and followed the rules. Peter Houstein [107] Officer Houstein told the Commission that Mr Micallef called him to attend an incident at the prison hospital on the afternoon of 21 February. He said that he asked if he could take chemical agents to the scene because the inmate in question had been involved in two other situations previously and it was best to be prepared. One of those incidents had involved inmate E taking another prisoner hostage and threatening to cut his throat. [108] Mr Houstein was asked how long it took from being notified to arriving at the incident, he replied: "Probably five to seven, eight minutes."16 [109] When he arrived Mr Burton was just outside the television room. Mr Houstein's evidence was that he approached the door with Mr Granquist and asked, he thinks, Mr Armour, to open the door. Inmate E looked calm and relaxed.
[110] Mr Houstein had worked with Mr Burton in the Tactical Response Group and had found his decision-making and incident resolution to be very sound. Craig Granquist [111] Officer Granquist's evidence was that he attended the incident of 21 February with Mr Houstein. It took them five to six minutes to arrive at the hospital. Mr Burton was by the door to the television room. He briefed them on the situation and relinquished control to Mr Houstein. They requested that the two nurses leave.
[112] Mr Granquist said that he had worked with Mr Burton on the Tactical Response Group and said that he had always seen him to be very professional in an emergency situation. John Voss [113] Officer Voss was senior officer on duty at the prison hospital on 21 February. After the incident Mr Micallef attended a debrief and told all staff that inmate E was to remain in lockdown until the disciplinary process had been dealt with.
[114] Mr Voss said that in his opinion Mr Burton had an excellent management style and was the best manager he had worked for. He was very cool, very calm, very direct and very fair. Ian Smith [115] Officer Smith testified that on 21 February inmate E was brought back to the prison hospital during the lunchtime lockdown period and was put in the East 7 cell, which he was not happy about.
[116] Mr Smith informed Mr Burton of what had happened. He then went with Mr Burton to the exercise yard to where inmate E was with Ms Fennell. Mr Burton asked him for the laces and inmate E said, "You can get fucked and I am not doing it." Mr Burton told him to remove them or there would be trouble. He still refused and Mr Burton instructed Mr Smith and Mr Armour to lock down the hospital. The other prisoners went back to their cells; inmate E remained in the yard. His instruction to the prisoners was:
[117] Inmate E was closer to the gate than the majority of inmates. He could not have been oblivious to the instruction. Inmate E chose to ignore it, he said. Three people chose to stay; inmate E, Ms Fennell and Ms Montgomery.
[118] Mr Smith said that security would have arrived in the next five minutes.
[119] Mr Smith testified that he attended the debrief meeting afterwards.
[120] Mr Smith's evidence was that Mr Micallef said inmate E was to be locked in his cell until such time as the matter was dealt with. He was to remain locked down until the disciplinary procedure was over.
[121] Mr Smith said that it was usual procedure for an inmate to remain locked down until the officers received instructions from their manager. Adam Ransley [122] Officer Ransley's evidence was that he had accompanied Mr Burton to the end of the hospital where the incident of 21 February was taking place. He saw inmate E in the yard with the two health staff.
[123] He said he as only about two metres from Mr Smith when the instruction was given to the nursing staff to leave the yard. Mr Smith was at the door to the yard and Mr Ransley was standing near the door from the TV room that faces the round house.
[124] Mr Ransley's recollection of the debrief was that Mr Micallef said that once the inmate was back in his cell he was not to come out of his cell for anything including exercise or phone calls until Mr Micallef returned the following morning to investigate the officers' reports. Mr Micallef said that he personally would do the investigation. [125] Mr Ransley said that he was a fan of Mr Burton, whose management style was always to the point and very professional and that he works well with everyone and was respected. Steven Yapp [126] Officer Yapp said that he was a Custodial Supervisor and that he was asked to attend the prison hospital on 21 February in his capacity as union delegate. He was told by Mr Burton and a number of prison officers that there were concerns that their safety would be at risk if inmate E remained in the prison hospital. This was relayed to Mr Micallef who stated that inmate E would remain locked down in his cell until the outcome of the disciplinary process. Mr Yapp said that he told Mr Micallef it would be clearer if a memorandum were circulated to staff at the prison hospital and Mr Micallef agreed. As far as Mr Yapp was aware, Mr Micallef directed Mr Burton to produce the memorandum. [127] Mr Yapp said that a lock down pending investigation means that the inmate remains locked down, gets checked regularly, gets his food, but under no circumstances, unless the specialist team were to come and assess it, was he to be removed from the cell. Vicki Plummer [128] Nurse Plummer testified that she is the psychiatric liaison nurse and her role is to attend to inmates with mental issues. She has worked at the prison for five years and in her current role for two years. She was at work on 21 February 2006 and at about 2pm she went to the custodial office where she was told by Mr Burton that there was no prisoner movement because of an incident involving inmate E. [129] The two security officers arrived while she was in Mr Burton's office. She observed the exercise yard on the camera in the custodial office and she saw Ms Fennell, Ms Montgomery and inmate E. All three were smoking and Ms Fennell was using a mobile phone.
[130] Ms Plummer said that following the incident Ms Fennell was walking down the corridor laughing. She said Ms Fennell:
[131] Ms Plummer said that her opinion of Mr Burton was that he was one of the most professional officers they had; he was caring and "very by the book", treating all inmates equally, fairly and politely. She said that "by the book" related to the standing orders that everyone had to abide by. Nicole Beaumont [132] Ms Beaumont, business support officer, testified that she was at work on 21 February 2006. On that afternoon she heard Ms Fennell, who was in the corridor, say: "Alan is going down I'll make sure of that, my friend Peter Holt will fix Alan". She said that she asked Vicki Plummer "did I hear right" and Ms Plummer said "yes". [133] Later, when she was making coffee, Ms Fennell came in and told her that Alan had locked her and Fiona in with an inmate and that Alan was "going down" for what he did and that she was going to see her friend Peter Hoult on Monday. [134] She said that following that they went outside for a cigarette and that Ms Fennell went over the story again and repeated that "Alan was going to go down for that if he thinks he's going to get away with it." Genevieve Ferrar [135] Nurse Ferrar testified that she was a clinical nurse at Risdon Prison employed in the primary health area, with six years experience as a registered nurse. [136] Her opinion of Mr Burton was that he was an excellent manager. She said that he was a very good communicator, very particular, very thorough, very supportive of the nursing staff and very approachable. John Cassidy [137] Nurse Cassidy's evidence was that he was a registered nurse at the prison hospital. On a number of occasions he had witnessed Ms Fennell visit inmate E after lockdown and had heard her discussing with him aspects of the investigation into Mr Burton's case. He said that he had witnessed Ms Fennell expressing pleasure that Mr Burton would be punished as the result of her actions; saying words to the effect that "No, the bastard won't get out of it this time" and "things are going well for us". [138] He testified that his job required him to give out medications late in the day after lockdown and to visit inmates for various other reasons and that on a large number of occasions he observed Ms Fennell visiting inmate E and talking to him through to food hatch to his cell for 15 minutes to half an hour. This was a regular occurrence during the period of time that Mr Burton's case was being heard. [139] Mr Cassidy said he was concerned that this behaviour was unprofessional and it demonstrated inappropriate involvement and also displayed personal animosity toward Mr Burton, which may have impeded a fair investigation. [140] He said that he had found Mr Burton to be professional, flexible and at all times humane and fair in his dealings with inmates and staff. Mr Burton was the best security manager there, open to discussion, and with zero tolerance to violence and standover behaviour, making it safe place for inmates. Mr Cassidy said that he held Mr Burton in high esteem. Glenn Jackson [141] Officer Jackson said that he was recalled from off duty to work for three shifts as a senior custodial officer in the prison hospital during March and May of 2006. He had worked in excess of five years in the prison hospital and he was surprised at changes made, in particular freedoms given to inmate E, including him being allowed in the roundhouse, which is a work area of custodial staff. On one occasion he asked inmate E to leave the office because prisoners were not allowed there and inmate E responded by saying: "I got rid of Burton and I could get rid of you too." He felt that the changes were jeopardising the safety of staff. He has seen what inmate E is capable of doing, including assaulting staff, making nooses and covering his cell with urine and faeces. [142] Mr Jackson testified that he had known Mr Burton for fifteen years and said that he had always been supportive and an excellent leader. For the Respondent Mr Charlie Micallef [143] Mr Micallef has been Manager of the Risdon Prison since 13 February 2006. At the time of the incident in question he had been employed as prison manager for one week. [144] Mr Micallef said that he has formed the impression that Mr Burton is inflexible in his management style and is a strong adherent to disciplinary processes. He said that Mr Burton ensures that the discipline of the inmates is of paramount importance. [145] On the day of 21 February shortly after inmate E refused to surrender his shoelaces Mr Burton contacted him and advised that he was anticipating trouble. Mr Micallef contacted the Security Unit for staff to assist in case they were required. Mr Burton rang again and told him that inmate E had become abusive toward staff, that he was isolating him, and he requested assistance. Mr Micallef did not raise any objections and he told Mr Burton that the security unit had already been informed and would be attending. [146] Between five and fifteen minutes later he received a telephone call from Ms Fennell who told him that inmate E was upset because he had been placed in a dirty cell and that she was in the exercise yard with him and a nurse. She told him that inmate E was agitated but not threatening and that all three were locked in the yard. He did not think that she asked for assistance in exiting the yard nor did he recall instructing her that she should leave the yard. [147] The incident terminated when the security unit staff arrived. Mr Micallef had no further contact with any of the staff until after the incident had concluded. [148] Mr Micallef said that Mr Burton briefed him afterwards and Mr Micallef then debriefed other custodial staff involved and reassured them that the incident would be investigated. That meeting was informal, providing staff with the opportunity to vent. [149] Mr Micallef said that he instructed Mr Burton to lock down the inmate as per normal procedures following such an incident. Those procedures involve immediately removing the inmate from the general population according to Director's Standing Order 1.12. The Corrections Act stipulates that all inmates have the right to one hour's exercise every day during which time they can shower, walk, exercise, etc. However the operating instructions in respect of people who display violent behaviours toward staff require that to happen only when there are enough staff to take them out and exercise them. [150] Mr Micallef said that he did not recall instructing Mr Burton to issue a memorandum concerning the locking down of inmate E:
[151] In Mr Micallef's view, Mr Burton failed to adequately manage the situation: he failed to provide a safe environment for the two staff members; he should not have got directly involved in the attempt to remove the shoelaces; he failed to provide leadership qualities; and he failed to recognise the need for inter-department harmony. Ms Fiona Montgomery [152] Nurse Montgomery testified that she is a qualified psychiatric nurse and has been a clinical nurse at the Risdon Prison Hospital since March 2005. [153] Her evidence was that inmate E was difficult to manage within the prison environment and had a propensity for violent outbursts. He was one of the first patients for whom there was a case management plan. She and other nursing staff had developed a rapport with inmate E and were successfully undertaking work with him on impulse control and anger management. [154] On 21 February Kate Fennell was made aware that inmate E was to be returned to the prison hospital from Division 8. They both went to the hospital, where she was told that he wanted to speak to her. She went to exercise yard to find him and Ms Fennell followed shortly after. He told her that the cell he had been placed in was filthy and had a ripped mattress. He was unhappy about this and had asked to be moved to his previous cell and could not understand why this had not happened. She did not know who had placed him in that cell or who had ordered that he be placed there, but she assumed it would have been the unit manager [Mr Burton]. [155] She did not observe any other nursing staff in the yard at the time. She saw Mr Burton enter the yard. She said that he was red-faced and there was a heated exchange between inmate E and Mr Burton during which there was some swearing although she could not be specific about who said what. Mr Burton appeared angry and inmate E's agitation was escalating. Shortly after, a custodial officer: "...requested that all the inmates in the yard return to their cells, to which they complied bar Inmate E."31 The officer did not give that instruction to inmate E, who remained where he was and no instructions were given to herself or to Ms Fennell.
[156] Ms Montgomery said that she and Ms Fennell tried to calm inmate E. She had her back turned to the gate and when she heard it lock it came as a complete surprise. She was not able to see what was behind the door because there was a perspex cover and because of the light. Inmate E became very distressed and said that he was concerned that he would be accused of taking Ms Fennell and Ms Montgomery hostage.
[157] Ms Montgomery's evidence was that Ms Fennell had a mobile phone and rang Mr Micallef. She estimated it was between 20 and 30 minutes before there was any communication and the whole time locked in the yard was 30 to 40 minutes. [158] After approximately 40 minutes Senior Custodial Officer Peter Houstein came into the yard and asked them to leave. Ms Fennell was still on the phone to Mr Micallef. They complied with the request. Ms Montgomery said she did not hesitate at all and that Ms Fennell was still on the phone. [159] Ms Montgomery said that Ms Fennell asked inmate E for his shoelaces and he handed them to Acting Unit Manager Security, Craig Granquist, who told them that inmate E was to be handcuffed, searched and returned to his cell. [160] After the incident she and Ms Fennell walked up the corridor to the administration area. She had no recollection of being confronted by any other nursing staff. Later, they spoke to inmate E. She observed that there was no bedding in his cell, although she understood that he was given some during the evening, but less than that provided for in the Standing Orders. The next morning she was told by another nurse that he had not been given towels or toilet paper and had used his t-shirt as toilet paper. [161] She said that inmate E remained locked down the next day and was given no opportunity to shower or use the telephone and was not given pen, or paper, or provided with exercise. She believed it to have been the unit manager [Mr Burton] who gave the order for him to be locked down. [162] Ms Montgomery said that she believed inmate E was treated unfairly. When asked who she blamed for that unfair treatment she said:
[163] Her evidence was that she did not know that it was Mr Micallef who ordered the lock down of inmate E. She said that the unfairness was not related to the lock down which is due process; it was returning the prisoner to a filthy cell; the lack of bedding; the absence of a shower; the restrictions on cell contents and the fact that he was locked down for two days. She believed that the management plan [the memorandum] was developed by Mr Burton, although she had not seen any signatures. Ms Kate Fennell [164] As at 21 February 2006 and for about three years before that date Ms Fennell was the State Manager of Correctional Health Services. She has been a registered nurse for 25 years, working in a variety of settings. [165] She testified that in May 2005 inmate E had taken some inmates hostage and was placed in isolation. His behaviour was worsening and it was decided that a collaborative approach, incorporating a structured program of rehabilitative activities might assist in changing his negative behaviour. He was transferred to the prison hospital in May 2005. The structured program was drafted on 9 September 2005. It involved Acting Unit Manager Senior Custodial Office (SCO), Danny Jex, who was acting in that position while Mr Burton was overseas, herself, Greg Partridge, and Senior Psychologist Kay Cuellar. Mr Partridge endorsed the program. [166] Inmate E [as part of that program] was released from his cell more often, and Ms Fennell felt there was always resistance from custodial officers and some nursing staff because he was deemed a dangerous inmate. He had never threatened her or Ms Montgomery and she had developed a certain level of rapport with him. [167] Ms Fennell described her working relationship with Mr Burton before he went overseas as being very positive. There were a lot of changes made whilst he was away. Shortly after he returned he asked how long inmate E was to be at the hospital and she advised him that he was now housed at the hospital, that there was a management plan in place, and that once he was settled he should come to chat with her and she would work through the plan with him. She said that Mr Burton had never taken up the opportunity. [168] The management plan included a set of rules agreed between inmate E, herself and Mr Partridge, which, she agreed, included Rule No 1, which was that he would abide by all the rules that applied to other prisoners. There was also an agreed list of cell contents. She agreed that if inmate E were to contravene rules then one of the sanctions that could be applied was the removal of some of the extra items from the list of cell contents. [169] Included with Ms Fennell's written statement was a copy of an email she had sent to Mr K Bain and Mr G Partridge on 4 January 2006, which said inter alia:
[170] Ms Fennell said that on 21 February 2006, the day of inmate E's return to the prison, she emailed Mr Partridge because she had heard that Mr Burton was refusing to have inmate E back in the hospital and was going to try to have him removed to Division 7.
[171] On 21 February Ms Fennell went to the exercise yard and spoke to inmate E who was agitated. He told her that he felt he was being provoked and had been placed in a dirty cell. He was beginning to calm down when Mr Burton came into the exercise yard to within about a metre of them and said: "Give me those fucking shoelaces". When cross-examined Ms Fennell said that she was quite certain that those were the words she had heard. She said Inmate E had not sworn, he had just said "no" in quite a rough way. He continued to refuse and Mr Burton repeated the comment and said: "You are no different from anyone else". He asked Mr Burton whether he was threatening him and Mr Burton turned and left the yard. She said that Mr Burton made a formal request for the laces along the lines of "I am formally requesting". [172] She said that Ms Montgomery joined them then. Inmate E was extremely agitated and she and Ms Montgomery were trying to calm him down when Custodial Officer Smith came into the yard and instructed the prisoners present to leave. She said that it wasn't clear whether inmate E was included so she told him to stay where he was and await further instructions. She and Nurse Montgomery stood in front of him and continued to talk to him and then she heard a clang as the door to yard closed. She could see the shadow of an officer but the lighting did not allow her to see who it was. [173] Ms Fennell said that she was given no instructions to leave the yard:
[174] Ms Fennell's evidence was that inmate E became very agitated and said that he felt he might be accused of taking them hostage. He was also afraid that the tactical response group might use gas. She attempted to telephone Mr Micallef; his telephone kept ringing out and she was unable to reach him for about 20 minutes. She estimated that by that time she was able to reach Mr Micallef they had been locked in the yard with inmate E for approximately 40 minutes. [175] She told Mr Micallef that they felt safe. When asked to reconcile why she told Mr Micallef that she felt safe yet in her oral evidence she had said she was concerned about her safety, Ms Fennell said:
[176] She said that while she was on the phone Officer Granquist arrived and asked them to leave the yard. Mr Micallef asked her if she could get the shoelaces from inmate E and asked him to give them to Officer Granquist, which he did. He was then handcuffed and removed from the yard, offering no resistance. [177] Ms Fennell identified a copy of her mobile telephone account from 6 February to 22 February 2006. The record shows the time of her telephone call to Mr Micallef as being at 2.49 pm and lasting for six minutes.39 [178] Ms Fennell said that after debriefing with Ms Montgomery and reporting to her agency she went to see inmate E. She does not remember having any further conversations with any custodial staff in the hospital that afternoon. She did not recollect speaking to Vicki Plummer or having a conversation with anybody in the corridor. [179] On the day after the incident Ms Fennell advised her supervisor of what had occurred. That afternoon she telephoned Mr Barber's office and made an appointment to see him the next morning. Mr Gregory Partridge [180] Mr Partridge has worked within the Australian prison system since 1987 and as Assistant Director of the Tasmanian Prison Service since October 2004. [181] Mr Micallef informed him of the incident of 21 February and told him that there was an incident involving two staff members secured in an exercise yard. He instructed Mr Micallef to get the staff members out of the yard. Apart from a briefing later that was the extent of Mr Partridge's involvement in the matter. [182] There are Director's Standing Orders (DSOs) that deal with such incidents. The relevant DSOs dictate that the ICE principle is used. Mr Partridge's understanding of ICE is that the area is isolated, the incident is contained as much as possible and all personnel not involved are evacuated. That should have included the removal of the two nurses from the yard. Mr Partridge considered Mr Burton's decision to lock the yard with them still in it to be the wrong decision and that it placed them in a dangerous situation. The decision lacked due care and diligence. [183] He said that Inmate E is a high-profile special-needs inmate with a Behavioural Management Contract dictating his behaviour. Mr Partridge said that such a plan is an individual management plan that a prisoner signs up to; they agree to do certain things in return for that the prison service agrees to do certain things. Under the management plan inmate E had agreed to be treated the same as other prisoners and to abide by the same rules. Although Mr Burton was not at the prison at the time the program was initially developed he was aware of the plan and had received a copy of it. He had personally emailed him notification of the fact that a behavioural management plan was in effect. [184] Attached to Mr Partridge's statement were copies of a series of emails, including the following dated 16 September 2005 from Mr Partridge to K Cuellar and K Fennell and copied to Alan Burton, Danny Jex and others. There was no attachment to the email.
[185] Also included with his statement was a copy of an email he sent to Mr Burton:
[186] It was Mr Partridge's view that the fact of inmate E's case management plan should have been taken into account when he was returned to the prison hospital after being in Division 8. Inmate E had asked to be placed in his own cell upon return to the prison hospital and that request was denied. Inmate E is bordering on obsessive in relation to cleanliness and he was returned to what Mr Partridge was told was a filthy cell.
[187] Mr Partridge said that he was also concerned because he understood that inmate E's personal belongings were not returned to him immediately when he was taken back to the prison hospital, which should have happened. [188] Mr Partridge said that his understanding was that after inmate E was returned to his cell [following the incident] Mr Burton issued a memorandum which instigated a strict regime regarding inmate E's cell and which did not allow for an hour's daily exercise. The regime was inflammatory and it should have been obvious that it would provoke a negative reaction from inmate E. He said that he was not aware of anyone else having instructed Mr Burton to issue that memorandum. [189] Mr Partridge said that Mr Burton had raised concerns about inmate E's placement with him; he did not want the prisoner to return to the prison hospital and believed that he should be accommodated elsewhere within the complex. [190] In a general discussion following Mr Burton's return from an overseas posting he had told Mr Partridge that in his view custodial management was black and white with no shades of grey. In Mr Partridge's view, that was an inflexible approach. [191] On 1 November 2005 Ms Fennell sent Mr Partridge a memorandum in which she expressed concerns relating to Mr Burton's approach and what she saw as its impact on the implementation of contemporary management practices.
[192] Mr Partridge agreed that he was on the selection panel that appointed Mr Burton as Operations Manager in the new prison complex, which was after the conversation about shades of grey. There were a number of provisos around his appointment that included further training and exposure to contemporary correctional practices, which were areas he needed improvement in and exposure to. His view of corrections was now outdated. No training had yet been scheduled for Mr Burton. Mr Graeme Barber [193] Mr Barber said that he has been with the Tasmanian Prison Service for six years. He is the Director of Prisons. He gave some history regarding his knowledge of Mr Burton. [194] Mr Barber's evidence was that prior to joining the Tasmanian Prison Service he had been a police officer and had intensive training in the ICE principle. He described the ICE principle as a standard national training format related to serious incident management, requiring that the incident be contained and that non-relevant people should be evacuated. He did not see the need for the isolation of inmate E with the two health personnel. The decision was disturbing given inmate E's long history of violence. He thought Mr Burton's decision was very poor and a dangerous operational decision which could have resulted in serious injury. [195] His view was that Mr Burton was not a person who would accept change and who wanted to operate under old regimes. He agreed that it would seem to be a disjuncture that he had provided Mr Burton with a reference and had pursued him for the role of operations manager in the new prison facility. [196] Mr Barber said that Mr Burton's judgment of how to handle the incident was probably clouded by the fact that he did not want inmate E in the prison hospital and he had made that quite clear both prior to and after the event. [197] Mr Barber said that if the two health staff had refused to leave then they should have been forcibly removed, if necessary.
[198] Mr Barber's evidence was that he considered Mr Burton's actions to have been a gross error, and that were it not for the good rapport that existed between inmate E and the two women then the matter could have resulted in serious injury. Documentary Evidence CaseAction Report [199] Tendered as evidence, was a report from CaseAction titled "First Report - State Service Act - Commissioner's Direction No. 5 Investigation". This report was commissioned by the Secretary, Department of Justice, as part of the investigation into alleged breaches by Mr Burton of the State Service Code of Conduct. Internal Memorandum [200] This is the memorandum prepared by Mr Burton following the debrief on the afternoon of 21 February 2005. It is directed to all staff and reads:
Director's Standing Order No. 2.3 - Prisoner/Detainee Management, issued 15 July 2002. The Standing Order requires all Prison Service staff to operate according to principles that encourage rehabilitation and personal development of prisoners. It also requires prisoners' needs to be recognised and liaison with management regarding prisoner behaviours. It provides for the development of case management plans. It requires the establishment of daily routines, access to recreational activities and cell contents. There are provisos, however, relating to prisoners' behaviour and security rating. Sanctions can include the removal of privileges. Gavin Armour's Statements [201] Mr Armour did not give evidence before the Commission. His Prison Service Report dated 22 February 2006 reads:
[202] His unsworn record of interview with Mr Scott of CaseAction includes the following: "...
SUBMISSIONS Mr Johnson for the applicant [203] Mr Johnston submitted that there are similarities with Billet's case, one of which was the finding by Commissioner Abey at paragraph 116 that:
[204] In that case Mr Billett was authorised to act as he did within relevant guidelines, as was Mr Burton, who undertook what he did as authorised by his statement of duties, the Director's Standing Orders, the standard operating procedures and the corrections regulations. [205] In Mr Johnston's submission, there were many similarities in the actual circumstances - in Mr Billett's case he was dealing with a difficult, unpredictable student and Mr Burton was dealing with an inmate with similar propensities. Both situations involved the separation and segregation of the person they were dealing with. At paragraph 126 Commissioner Abey said:
[206] That is the key, Mr Johnston said. The fact that Mr Barber and Mr Partridge may have done differently should not have contributed to a finding against Mr Burton and the sanctions that were applied to him. Commissioner Abey points out that behaviour management is anything but an exact science. At paragraph 128 he said:
[207] As in Mr Billet's case, the guidelines do not mandate the precise actions that should have been taken at the time. The discretion was vested in Mr Burton, as manager. There are many variables at play during such incidents. [208] The structured program of activities for inmate E (his case management plan) included the rules and cell contents. Rule No. 1 was that inmate E would abide by the same rules and be subject to the same sanctions as all other prisoners. Mr Barber's view was that it was Mr Burton who caused the incident, which is unjust, it was inmate E who caused it by offending against seven prison offences in the Corrections Act. [209] Mr Johnston submitted that the Secretary had based his decision to demote Mr Burton purely on the CaseAction report provided by Mr Scott which was one-sided and incomplete. There are significant differences between that report and what the evidence before the Commission has revealed. The Secretary did not consider relevant matters because the investigator did not provide them to him. Evidence in these proceedings has shown that Mr Scott did not ask some relevant questions. He neglected to question people who were present and had information that was germane, for example, Custodial Officers Smith, Ransley and Voss. He interviewed people who were not present, for example Mr Partridge. He interviewed Mr Jex, who was not there that day or in the weeks that followed. He relied on unsigned and unsworn statements. Relevant material was omitted and irrelevant material was included. Mr Johnston contended that the language used by Mr Scott was loaded, particularly in the use of adjectives in his findings. This may have misled the Secretary. [210] The Secretary determined that Mr Burton had breached s9.2 of the State Service Act - that there was a lack of care and diligence in ordering the locking and securing of the yard gate The grounds on which that determination was based contain significant omissions based on what has been revealed during the five days of hearing in this Commission. The Secretary had relied upon the evidence presented to him, for example, that inmate E was agitated and unsettled, whereas there was evidence before the Commission was that he was calm. It was said that at no time did Mr Burton instruct any custodial officer to remove Ms Fennell and Ms Montgomery but that is not true. The evidence was that Mr Burton ordered his subordinate officers to ask them to leave the yard. [211] The Secretary determined that Mr Burton did not follow the reasonable direction from Mr Partridge in relation to the implementation of an approved management plan for inmate E, but there was no evidence as to how he did not comply with that direction, if indeed a structured activities program can be seen as an order. Mr Burton did not issue the order that inmate E be locked down, the evidence shows that it was Mr Micallef who did so. Mr Burton wrote a memorandum in response to the order from his superior officer. Inmate E remained locked down pending an investigation in which Mr Burton had no part. The sanctions that were applied to inmate E were Mr Micallef's responsibility; he ordered inmate E locked down and he failed to complete the investigation in a timely manner. Inmate E remained locked down for two days, despite Mr Burton's attempts to call Mr Micallef to find out what was happening with the investigation. This was no fault of Mr Burton's. [212] It was determined that Mr Burton had created an unsafe work environment thus breaching the state service principle 7(1)(i) which requires that the state service provide a safe workplace. Mr Johnson said that was, in effect, the same offence as not acting with care and diligence and thus creating an unsafe work environment and that Mr Burton had been sanctioned twice for one offence. The fact is that no evidence was presented that Mr Burton did create an unsafe workplace. There was a successful outcome, there was no violence, the testimony of Ms Montgomery and Ms Fennell was that they felt comfortable and that the inmate had more concerns for their wellbeing than for his own. Mr Burton weighed up the relationship and the situation and acted with due care and diligence, taking into account all the variables and acting in line with the ICE principles. [213] If Mr Burton had taken the course advocated by Mr Barber and used force to remove the two nurses, then that would have inflamed the situation. Mr Burton chose not to use force or uniformed officers, but maintained a low profile and relied upon the good relationship between the health personnel and the prisoner to resolve the situation peacefully. Mr Granquist, Mr Houstein and Mr Micallef all deployed the same strategy. Only those people looking back with 20-20 hindsight are saying it was wrong. [214] Mr Johnston said that the evidence showed that at the time of the incident Mr Micallef had no knowledge of inmate E nor was he well acquainted with the prison hospital environment. His involvement on the day was by telephone. He was then involved in the debrief. In his testimony he was unable to recall certain matters and there are gaps, however those gaps are able to be filled in by other witnesses who all say that Mr Micallef issued the instructions that resulted in Mr Burton preparing the memorandum to lock down inmate E and the conditions attached. Ms Fennell's evidence was that Mr Micallef told her the next day that it was he who ordered the lock down. [215] Mr Johnston submitted that the chronology showed that Ms Montgomery and Ms Fennell would have been locked in the yard with inmate E for about ten to fifteen minutes, not the 20, 30, or 40 minutes they estimated. [216] Ms Fennell claimed she did not hesitate to leave the yard once the security officers arrived, but the evidence of everyone else is that she said "in a minute". Ms Fennell's evidence has moved since 21 February 2006; for seven months up until the Commission hearing she made no mention of fear of inmate E but said differently under oath, despite her own evidence that inmate E had only showed care and concern for her and Ms Montgomery while they were in the yard. Mr Johnston submitted that the Commission should disregard Ms Fennell's evidence where it cannot be corroborated. [217] Mr Johnston said that all of the applicant's witnesses had testified that Mr Burton is a dedicated, professional, thoughtful officer who has the best interests of the staff and inmates under his care at all times. [218] Although Ms Fennell's evidence was that she and Mr Burton had a professional and amicable working relationship there is a perception amongst others that there is tension and strain within the structures of the prison hospital. That is especially evident in the witness evidence about the conduct of Ms Fennell toward Mr Burton. [219] Mr Johnston said that the case management approach is laudable in its attempts to rehabilitate inmate E, who will spend a lot of his life incarcerated. However, there is another dynamic in Mr Burton's role, and that is, as contained in his position description, to maintain the facility in terms of security and safety. The rules are rules and they apply to everyone. Correctional officers cannot show favour to anyone. [220] It is the applicant's view that he made a decision based on good judgement, in good conscience, and it resulted in a good outcome. For him to have been charged, investigated and sanctioned for performing his duties is unjust. [221] Mr Johnston said that reinstatement to the position of Correctional Manager of Operations at the Risdon Prison complex is the remedy sought, or alternatively, another posting as a Correctional Manager within the Tasmanian Prison Service. Mr Burton is also prepared to undergo counselling and retraining in proper conduct of emergency situations. He has 25 years of unblemished experience in the Tasmanian Prison Service and has many years of experience as a unit manager. Mr Baker for the respondent [222] Mr Baker said that he relied heavily on the decision of the State Service Commissioner in relation to the question of demotion. Commissioner Watling sustained three of the four charges against the applicant and concluded that the actions taken by the Secretary were open to him. [223] There had been an assertion that the State Service Commissioner was either not required to or did not consider the merits of the matter. Whilst he is required to look at the process and procedures there is a legislative requirement that he consider a range of matters and whilst merit is not specifically included there is scope for an applicant to argue a matter based on merit. Mr Baker readily accepted that if information became available subsequently then that is different, but it was up to the applicant to demonstrate to the State Service Commissioner any omissions at the time of the proceedings. It is not reasonable to claim that Commissioner Watling did not look at the merit and many of the issues raised in the instant proceedings were also issues considered by Commissioner Watling. [224] Mr Burton oversighted the locking of two health professionals in an enclosed yard with a known violent criminal. The nursing staff are engaged to provide for the health and wellbeing of inmates and the role of custodial staff is to provide a safe and secure environment for the nursing staff to work within. Mr Baker submitted that the custodial staff, under the direction of Correctional Manager Burton, failed in that obligation. [225] The evidence showed that Mr Burton was an experienced, skilled officer who has experience of managing critical incidents. Mr Barber supported his application for an overseas posting and was instrumental in having him submit an application for a new correctional manager position. Mr Burton applied for the position, he fulfilled the criteria and was appointed to it. Mr Partridge was on the interview panel. Mr Burton evidently had the support of his senior officers and there was no conspiracy by senior managers to put the axe into Mr Burton. [226] Mr Burton claims that the nursing staff decided to stay in the yard and that led to a peaceful resolution of the matter. It was not Mr Burton who brought about the peaceful resolution; it was the skilful negotiations of the nursing staff. No credit goes to Mr Burton, who decided to lock them in with a violent and unpredictable prisoner. It is fanciful to suggest that he made the call he did in order to assist in the resolution of the situation. [227] The respondent contended that Mr Burton had breached his responsibility to ensure the health and safety of the employees under his supervision, as required by the Workplace Health and Safety Act 1995 and by the State Service Act Code of Conduct. As a consequence he also breached the requirement to act with due care and diligence in the course of state service employment, as required by s9.2 of the State Service Act. In locking the nurses in with an impulsive and violent criminal Mr Burton created a situation that he or his officers could not control, placing their safety in jeopardy. It is apparent from his evidence that if similar circumstances were to arise he would make a similar decision. [228] Mr Baker referred to a decision of the Supreme Court of Tasmania in Franjic v Visser in which Crawford J said that Mr Franjic:
[229] In the respondent's submission, Mr Burton is an experienced correctional officer. He may not have realised the danger but he should have done. [230] Mr Micallef's evidence was that isolating the staff with the inmate away from the direct vision of staff and locking the gate slowed down the process should there need to be a rapid response. He would not have expected it from a manager of Mr Burton's standing. [231] Mr Baker asserted that it was the placing of inmate E in a particular cell that provoked and led directly to the shoelaces incident. Following the incident, inmate E was denied basic rights and Mr Burton, contrary to the management plan approved by Mr Partridge, issued a memo. That was not someone else's responsibility; it was Mr Burton's. FINDINGS [232] Mr Baker submitted that the decision of the State Service Commissioner should be given weight by this Commission. I have read that decision and note that Commissioner Watling said at paragraph 5: "It is not my intention to reiterate the entire background that gave rise to this application, as it can be found in the document titled "First Report State Service Act 2000 - Commissioner's Direction No.5 Investigation...undertaken by CaseAction." It is apparent that the State Service Commissioner relied upon that report when conducting his review. At paragraph 10 he said that he had taken into consideration the CaseAction report and the attached records of interviews, the submissions of the parties and a number of documents. No witnesses were called to give evidence and the State Service Commissioner did not have the benefit of some evidence that was before this Commission. This is a hearing de novo. It is not a review of the State Service Commissioner's decision. My decision is based on witness and documentary evidence, the authorities provided, and the arguments presented in the proceedings before me. [233] The sanctions against Mr Burton were imposed as a result of alleged breaches of the state service Code of Conduct. In essence, they concern two issues: one, the alleged breach of inmate E's case management plan; and two, the decision taken by Mr Burton to order the locking of Ms Fennell and Ms Montgomery in the exercise yard with inmate E. [234] From the evidence before me it is apparent that there was some disquiet amongst a number of prison staff, both health and custodial and including Mr Burton, in relation to what was perceived as special treatment of inmate E and a slippage of safety and security standards. This is well documented both before and after the events of 21 February 2006. These views were expressed to Mr Micallef in what has been described as a "debrief" directly after the incident in the exercise yard on that day. These concerns were exacerbated because of inmate E's history of violent and unpredictable behaviour toward custodial staff and other inmates. [235] It is also apparent that there was disquiet amongst senior health and custodial staff, notably Ms Fennell and Mr Partridge, about a perceived resistance on the part of some custodial and health staff, including Mr Burton, to the introduction of what has been characterised as "contemporary management practices" an example of which is the case management regime that had been developed for inmate E. Ms Fennell's correspondence to Mr Partridge and her evidence reveal her to have been a passionate advocate for rehabilitation of prisoners, rather than what she described as simply "warehousing" them. Her memorandum to Mr Partridge dated 1 November 2005 specifically outlines her concerns that since Mr Burton had returned from overseas there had been a reversion to the "old" way of doing things. [236] The evidence was that Mr Burton had not received, nor was he scheduled for, any training to address his perceived outdated view of corrections. Notwithstanding that it was his responsibility under the terms of his Statement of Duties to be "responsible for maintaining current knowledge of contemporary correctional practice and competence"48 it is also the responsibility of an employer to provide training to address identified deficits. It is unfair that he was not provided with relevant training in contemporary management practices yet he was held accountable for failing to apply them. [237] The evidence revealed that Mr Burton was not counselled or even informed of his perceived deficits; indeed he applied for and obtained the position of Correctional Manager Operations at the new prison facility. There were apparently some "provisos" around his appointment, but he was not aware of them. It is also unfair that he was not told of the concerns about his perceived outdated practices and attitudes and given the opportunity to address them. [238] The case management plan for inmate E was developed whilst Mr Burton was overseas and his evidence was that as at 21 February 2006 he was aware of the content but unaware of the detail of the plan. Mr Scott, in the CaseAction report, says that the plan "was emailed to all relevant staff including Burton on 16 September 2005." The evidence provided to the Commission does not support that, as the email simply advises that Mr Partridge has reviewed the proposed management plan for inmate E and there is no attachment to the email. Mr Scott's report reads as though the plan including the agreed rules and cell contents were emailed to Mr Burton on 16 September 2005, however the rules and cell contents did not form part of the plan until some time later. On 7 December 2005 the set of rules and an approved list of cell contents was signed off. There is an email from Mr Partridge to Mr Burton dated 9 December 2005 in which he advises that:
[239] Mr Partridge's evidence was that management plans had not been in existence for very long and there were only a small number of people involved in the program. There was no specific role for Mr Burton in the plan and it seems that nobody took responsibility for discussing the content with him, which is surprising given that part of the plan was that inmate E would be permanently housed at the prison hospital and Mr Burton was the manager of that facility. Mr Burton's evidence was that there had been "brief discussions" with Mr Jex (acting Unit Manager whilst Mr Burton was overseas) regarding the management of inmate E. Mr Burton said that that he had been "left out of the loop" and that appears to be the case. [240] It is clear from Ms Fennell's correspondence to Mr Partridge that she had formed the view that Mr Burton was sabotaging her efforts to implement changes in the management of inmates, particularly the management plan for inmate E. It is also clear that there had been difficulties between Mr Burton and inmate E, who had been in Division 8 as a result of threatening to assault Mr Burton. When inmate E was due to return to the hospital Ms Fennell anticipated problems and, from the evidence, determined to be at the hospital when he was received there, presumably in order to protect his interests. [241] One of the catalysts for the events of 21 February 2006 was the fact of inmate E's unhappiness with the cell he was allocated on his return to the hospital; it was not his usual cell and it was alleged to have been dirty. Although the evidence showed that there is no requirement for him to have been returned to the same cell his request to do so could have been accommodated and this has been viewed by some as a provocative act on the part of Mr Burton. It may have been a provocative action but whether it was Mr Burton's decision is not clear from the evidence. [242] Mr Scott, of CaseAction, made a finding that Mr Burton had a role in allocating the cell to inmate E. This appears to be based, at least partially, on an assumption that Mr Burton was overheard at 9.30am on that day saying that he would not have inmate E back. The CaseAction report says that Ms Fennell said: "Burton was overheard talking about [inmate E's] return at approximately 9.30am that day". Leaving aside the fact that this is hearsay, there is no evidence to support the conclusion that the conversation was overheard at 9.30am on that day, indeed, Ms Fennell does not say it was. Her statement says that Ms Hunn rang her to inform her that inmate E was returning to the hospital that day and that Ms Hunn said: " she had heard Alan Burton say...that there was no way he was having [inmate E] back in the hospital". Ms Fennell relayed the information to Mr Partridge by email. That email was sent at 9.16 am that day and it said: "I hear that Alan Burton will refuse to have [inmate E] back in the hospital and will push to get him moved to D7." Ms Hunn was not called to give evidence nor was any statement taken from her. Mr Burton's evidence was that he did not learn of inmate E's return until about 12 noon on 21 February and that he had no role in allocating the cell. [243] Mr Smith was one of two officers on duty when inmate E was received into the hospital. His evidence in relation to the cell allocation is ambiguous. He said: "...that is where we had been told to put him or we had decided to put him after discussions with Mr Burton and Mr Voss". The Hospital Movements Diary has a record of inmate E being returned to the prison hospital at 1.20 pm. Mr Burton claims that he did not return to the prison hospital until 1.45 pm and that has not been challenged. The fact that he was not physically present does not however mean that he did not give instructions. It is unclear whether it was an instruction from Mr Burton or a decision by Mr Smith and Mr Armour that determined the cell allocation. That was not pursued in cross-examination. There is insufficient evidence to make a finding that Mr Burton was responsible for the cell allocation. [244] Another contributing factor to the day's events was inmate E's unhappiness about the fact that his possessions were not returned to him immediately upon being received back into the hospital. Again, the failure to immediately return inmate E's property has been viewed as a provocative action. Mr Smith and Mr Armour were the officers on duty. Mr Smith was not questioned about this and Mr Armour did not give evidence before the Commission. In his statement to CaseAction he said he told inmate E that he was not able to return his property until it was confirmed with a senior officer. Apart from Mr Armour's statement, which has not been tested in cross examination, there is no evidence as to the circumstances surrounding the failure to immediately return inmate E's property. I find that there is no evidence to connect Mr Burton with this. [245] This then was the situation when the prisoners were unlocked following the lunchtime lockdown. Inmate E was angry about his cell and his property and Ms Fennell was coming to see him, presumably to ensure that the case management plan was implemented. As inmate E left his cell Mr Smith asked him for his shoelaces consistent with policy. Inmate E refused to hand them over. Mr Smith sought the assistance of Mr Burton and told him that the prisoner was verbally abusive. Inmate E did not give evidence, so the only evidence as to the alleged verbal abuse is that of Mr Smith (and Mr Armour's unsworn statement to CaseAction). There is little doubt, however, that there had been friction between inmate E and Custodial Officers Smith and Armour regarding the cell and its contents. Given the history of inmate E and his relationship with custodial officers it is probable that he did abuse them. [246] Mr Burton informed Mr Micallef of the situation and requested assistance. That is the evidence of both Mr Burton and Mr Micallef, even though Mr Barber's evidence was that Mr Burton did not request assistance. Mr Burton's evidence was that he told Mr Micallef of his intention to go to the yard himself to get compliance with the shoelaces direction. Mr Micallef then notified the security unit. [247] By this time Ms Fennell was in the yard with inmate E and Ms Montgomery was in fairly close proximity when Mr Burton, accompanied by Mr Smith, entered the yard and asked inmate E twice for the shoelaces and was twice refused. On the third occasion he issued an order. The evidence of Mr Smith, Mr Burton and Mr Eggleston (a nurse on duty in the yard at the time) was that inmate E told him to "get fucked." Ms Montgomery said that she heard raised voices and swearing but could not be specific about who said what. Mr Burton's evidence was that he did not swear at the prisoner that he was aware of. Mr Eggleston said that he remembered inmate E's exact words which were "You can go and get fucked". Mr Smith's evidence is that inmate E said: "you can get fucked and I am not doing it." Mr Eggleston said that Mr Burton's order was delivered in a matter of fact and authoritative manner. Ms Fennell's evidence was that she was quite certain that Mr Burton said: "give me those fucking shoelaces" and that inmate E had not sworn, he had just said "No" in quite a rough way. The weight of evidence is against Ms Fennell. Not only is it not supported by the other witnesses but it also inherently unlikely that if, as she claims, Mr Burton had sworn at inmate E, that he would not have retaliated in like manner. All the evidence is that he was not a compliant prisoner and that he was upset about his cell. I think it possible that some of Ms Fennell's evidence was coloured by her inclination to defend inmate E. [248] Mr Burton contacted Mr Micallef again, briefed him about the situation and informed him of his intention to remove all prisoners and secure them in their cells. Whilst Mr Micallef's evidence was that Mr Burton had failed to show leadership by getting directly involved in the shoelace issue and that he did not agree with some of his actions, he did not at any stage on the day counsel Mr Burton to take a different course of action. [249] The evidence shows that Mr Burton issued an order to Mr Smith and Mr Armour to evacuate the yard and secure the prisoners in their cells. It has been estimated that there were 10 to 20 prisoners in the yard at the time. Also present were three nurses - Mr Eggleston, Ms Fennell and Ms Montgomery. [250] Mr Eggleston's evidence was that Ms Fennell and Ms Montgomery were close to the door and must have heard the instruction given by custodial officers to prisoners to return to their cells. He said it was "ludicrous" to suggest they were oblivious to the order especially with the movement of people around them. Ms Montgomery said that as Officer Smith had not maintained eye contact with them she interpreted that as the order not including them. Ms Fennell's evidence was that it wasn't clear whether inmate E was included in the instructions so she told him to stay where he was. [251] Officer Smith informed Mr Burton that Ms Fennell and Ms Montgomery were still in the yard and sought instructions. Mr Burton ascertained that they both had keys and alarms. He testified that he issued an order to Mr Smith and Mr Armour to instruct Ms Fennell and Ms Montgomery to leave the yard and there is no evidence to suggest that he did not give that order to his subordinate officers. Health personnel are required to comply with all lawful instructions given by correctional staff in relation to security. Ms Montgomery and Ms Fennell testified that they were given no such order. Mr Smith's evidence is that he did not issue the order to the two nurses. No reasons have been advanced in relation to this lapse. Mr Voss says that he heard Mr Smith issue the order. The time between the events and the hearing was seven months and people's memories are imperfect, which may account for some of the differences in evidence. I prefer Mr Smith's evidence in this respect because of his more direct involvement. I find that Mr Burton instructed Mr Smith to order Ms Fennell and Ms Montgomery to leave the yard but that no such direct instruction was issued to them. They could, of course, have left the yard when the other staff did whether they were directly ordered to or not. [252] Ms Fennell and Ms Montgomery's evidence was that it came as a complete surprise to them when the gate was locked and they did not know it had happened until after the event. Ms Montgomery said she had her back turned at the time and she could not see behind the door because of a perspex cover and the light. Ms Fennell said she heard a clang and could see the shadow of an officer but not who it was. Mr Armour's unsworn statement to CaseAction said that Ms Fennell and Ms Montgomery were well aware the gate was going to be locked, that he had to go into the yard to perform the lockout. He said he made eye contact with Ms Fennell and beckoned to her that the gate was going to be locked, which is a process that takes about fifteen seconds. He said that he was positive that she saw him but she turned her back. He said he also made eye contact with Ms Montgomery. His version of events is confirmed by Mr Smith, who said that Mr Armour looked at Ms Fennell, who turned her back and walked off. I inspected the area and observed the gate in question being locked and unlocked from both inside and out and would have to agree that Ms Fennell and Ms Montgomery, from where they were standing would have to have been aware of what was happening around them. They could have left before the gate was locked. I differ from the finding in the CaseAction report where it was said that they would not have seen the locking of the gate because of the "light situation". It is my understanding that finding was based on statements and photographs only, but even if that is not the case, the Commission has inspected the area and the process involved in locking the gate. I find that Ms Fennell and Ms Montgomery were aware that the gate was being locked and made a conscious decision to remain in the yard with inmate E. I think it likely that Ms Fennell chose to stay because she wanted to be a witness to what was about to happen to inmate E given her concerns about his treatment by custodial staff. It is evident that both thought it unfair that he had been placed in a new and allegedly dirty cell and that he had been denied his possessions. [253] Mr Burton has been charged with not exercising due care and diligence. In my opinion, there is substance to that charge. Even though he believed that the nurses had refused to leave, he should have ensured that they were given every opportunity to do so before he took the step of ordering the locking of the gate and should not have delegated that role to his subordinates. It was obviously a significant decision to lock the gate. As already mentioned, health personnel are required to follow the orders of custodial staff in such circumstances. Whether they would have complied or not is another matter. If he had given them every opportunity to comply and had issued a direct order and they still refused to leave, then at that point only should he have weighed up the question of forcible removal as opposed to locking the gate with them still there, or some other option. I note that when the security officers arrived Ms Fennell and Miss Montgomery did comply with an instruction to leave, although, in Ms Fennell's case, apparently not in any great hurry. I find that in failing to ensure that the two health staff were ordered to leave the yard Mr Burton failed to exercise due care and diligence. [254] The amount of time the nurses were locked in the yard was the subject of much evidence. Mr Micallef's evidence was that he contacted the security unit following the first telephone contact with Mr Burton, which was before the gate was locked. Mr Houstein said it took "probably five to seven, eight minutes" for them to arrive at the hospital. Mr Granquist estimated that it took them five or six minutes. Mr Smith estimated that they were locked in the yard for five minutes and Mr Burton's estimate was ten minutes. Mr Micallef's evidence was that the time from Mr Burton's second phone call [advising him he was going to secure the yard] and the phone call from Ms Fennell telling him she was locked in the yard was between five and fifteen minutes. The evidence shows that the security officers arrived at the yard during the time she was on the telephone to Mr Micallef. Ms Fennell said that they were locked in the yard for approximately 40 minutes and Ms Montgomery said it was approximately 20 or 30 minutes before the phone call to Mr Micallef and the total time locked in was 30 to 40 minutes. Even allowing for the amount of time that has elapsed since the incident the different estimations vary significantly - between five and 40 minutes. If it is accepted that they were in a dangerous situation, then the length of time they were in that situation is important. Objective evidence in the form of the Telstra telephone record shows the telephone call was made at 2.49 pm and lasted for six minutes. Some of that time was after the security officers arrived, so they did not arrive at the exercise yard any earlier than 2.49 pm. The document headed "Time Line for Video" evidence is, unfortunately, not the video evidence itself but someone's interpretation of the evidence, as the tape is no longer in existence. The tape allegedly showed the gate as having being locked at 14.29, although it could have been earlier. I therefore find that Ms Fennell and Ms Montgomery were locked in the yard for a minimum of twenty minutes, a not inconsiderable period. It is difficult to account for the discrepancy between the security officers' evidence and this finding, one possible explanation being that there was some delay before Mr Micallef contacted them. [255] The question of whether or not Ms Fennell and Ms Montgomery felt unsafe was raised. There was evidence that they had a good rapport with inmate E and there was also evidence that he had never assaulted nursing staff. Ms Plummer testified that she heard Ms Fennell saying that it was "a joke" that Mr Burton was concerned for their safety and that inmate E would never hurt her. Mr Micallef's evidence was that Ms Fennell told him that inmate E was agitated, but not threatening. Ms Montgomery's evidence was also that inmate E was becoming agitated, one reason was that he was concerned that it might be regarded as a hostage situation and she and Ms Fennell could potentially be gassed. She testified that she had a level of anxiety as time went on related to the potential for being gassed and that her fear was related to a custodial response. Ms Fennell's evidence indicates concern for inmate E's mental state rather than fear for her own safety. She told Mr Micallef that they were safe and not being threatened in any way. Her evidence was that she did not press her alarm because she did not feel directly under threat. The weight of the evidence is that the two health staff were not afraid of inmate E, but for him, and they were afraid of the possible personal consequences of a custodial response involving gas. I note that Officers Houstein and Granquist had sought and obtained permission to carry gas and batons to the area. [256] The evidence shows that once the security officers arrived the situation was resolved peacefully and quickly with the assistance of Ms Fennell, who was instrumental in getting inmate E to relinquish the shoelaces. It is not clear why she did not use that influence earlier, when Mr Burton requested them. Had she done so, and had inmate E relinquished them then, the incident would have been avoided. [257] Mr Burton told the Commission that it was his judgment that locking the gate was the best way to manage the situation; it secured inmate E; he was aware of the good relationship between the nurses and the inmate; and the area could be under surveillance at all times. He remained in the door to the day room from where he could see the yard and the situation was monitored via the camera in the control room. It would have taken only seconds for him to get into the yard if required. It was his judgment that a forcible removal of the health personnel would have escalated the situation and he was aware of inmate E's violent tendencies. He is of the opinion that it was as a result of Ms Fennell and Ms Montgomery's involvement that the incident was able to be peacefully resolved. [258] Mr Burton was of the opinion that he made the right judgment, given the circumstances and that he had acted according to ICE (isolate, contain and evacuate) principles. His superior officers do not agree. Mr Micallef, Mr Barber and Mr Partridge all view Mr Burton's decision to lock the gate as a serious error of judgment that placed the safety of Ms Fennell and Ms Montgomery at risk and they view with concern the fact that Mr Burton still considers that he made the right call. Mr Barber and Mr Partridge both said that the nurses should have been forcibly removed had they not agreed to leave. It is self evident that such incidents are volatile by nature and require immediate decisions. Mr Johnston referred to the comments made by Abey C in Billet where he observed that: there will always be other options available; there will always be differing views on what should have happened; and the person with responsibility to act at the time does not have the benefit of "20-20 hindsight". [259] Throughout the hearing a number of witnesses testified that inmate E was violent and unpredictable. Mr Burton has been trained to deal with incidents where there is a potential for harm. Whilst I am not qualified to make any findings as to whether ICE was or was not properly applied, I note that the Incident Management Framework training program defines "incident" as "any event with the potential to harm persons, property, reputation or impact on the orderly operation of the facility."49 Obviously, it is the person on the spot with the responsibility to make the decisions at the time who must assess the potential hazard. Mr Burton testified that he decided to secure the door to prevent the inmate from "running amok". [260] Appropriate weight must be given to the opinions of Mr Burton's superior officers, but weight must also be given to Mr Burton's considerable experience in the management of emergency situations and the fact that he was the person on the scene. He believed that the nurses had refused to leave and he judged it better to secure them with inmate E than to attempt to forcibly remove them. The evidence was that Ms Fennell and Ms Montgomery were concentrating on trying to calm inmate E. [261] I have concluded that Mr Burton made an error of judgment. Whether Ms Fennell and Ms Montgomery were afraid of inmate E or not, all of the evidence is that he was violent and unpredictable. Neither Mr Burton nor anyone else could have predicted how he would react. He could have "run amok" in the exercise yard and a reasonable person would consider that locking two nurses in there with a dangerous inmate would create an unsafe situation. I find that Mr Burton made an error of judgment when he issued an order to lock the gate whilst the nurses were still in the yard and that he put their safety in jeopardy. I also find that there are some mitigating circumstances. Mr Burton's subordinate officers failed to follow his direction to order the nurses to leave. Ms Fennell and Ms Montgomery made a conscious decision to remain and had a positive influence on the resolution of the situation. The alternative posited during the hearing, forcible removal, might have had more serious consequences, including the use of gas. No other options were canvassed but it seems to me that the most reasonable course of action would have been for Mr Burton to try to persuade the nurses to leave and, failing that, to directly order them to do so. They are required to follow such orders. [262] Following the resolution of the incident Ms Fennell, according to the evidence of Nurse Malcolm Eggleston, Nurse Vicki Plummer, and administrative assistant Ms Nicole Beaumont, made comments to the effect that she would ensure retribution against Mr Burton. Ms Plummer heard her say that she did not want Mr Burton as manager and Ms Beaumont overheard the comment and they confirmed it with each other. Ms Fennell is also alleged to have said that she would be going to see her friend, the Secretary of the Department. Ms Fennell's evidence was that she had no recollection of those conversations. There is no obvious reason why those three employees would give evidence under oath of an event that did not happen and it would appear to be against their interests to testify. I accept that they did hear the comments. This is not, however, a finding that any undue influence was used to effect the removal of Mr Burton from his position as correctional manager. The evidence is that Ms Fennell reported the events of the day to her supervisor and to Mr Barber. [263] Nurse John Cassidy's evidence was that Ms Fennell made numerous visits to inmate E during the investigation into Mr Burton's actions and he heard her make comments such as "the bastard won't get out of it this time" and "things are going well for us." I see no reason to disbelieve Mr Cassidy and he felt that the behaviour was unprofessional, demonstrated inappropriate involvement, displayed personal animosity toward Mr Burton, and may have impeded a fair investigation. It does not fall to me to make a judgment as to whether or not that was inappropriate behaviour. No evidence was put to me to support a view that the investigation was biased or unfair although Mr Johnston claimed that it was incomplete and used "loaded" language. Nonetheless it was done at arm's length by an independent investigator, and I make no such finding. [264] Later that afternoon there was what has been described as a debriefing meeting. Mr Micallef testified that he made it "very, very clear" that inmate E would have to undergo an investigation and he believed that there would be a disciplinary investigation. A plan for the management of inmate E pending the investigation was developed, which included him being locked down in his cell. This plan was expressed in a memo over the signature of Mr Burton. Sanctions have been imposed on Mr Burton as a result of the instructions contained in the memo. It has been alleged that this breached inmate E's case management plan. [265] If inmate E were unreasonably locked down and prevented from accessing those activities then that would be a breach of the management plan. Similarly, if inmate E were unreasonably deprived of his approved cell contents then that would be a breach of the plan. The rules have been described as a "contract", whereby inmate E agreed to abide by a set of rules. Once he broke any of those rules then he breached the contract. Rule No. 1 was "[Inmate E] agrees to will [sic] abide by all the rules relevant to other prisoners". Inmate E did not abide by the rules and committed a number of offences on 21 February 2006 including failing to follow the order to give up his shoelaces, and he was, therefore, in breach of that contract and was no longer entitled to rely upon it. [266] The findings by Mr Scott of CaseAction in relation to the memorandum issued by Mr Burton on 21 February 2006 were that the restriction of cell contents and the lockdown of inmate E were as a result of the memorandum "signed off by Burton" and were in conflict with the agreement reached on 7 December 2005. I believe that there is a difference between "signed" and "signed off". I take "signed off" to mean approved or endorsed. Mr Burton signed the memorandum but he did so under the instructions of his superior officer, Mr Micallef. [267] Mr Micallef gave the instructions about the lockdown, which was to be "according to normal procedures". All of the witnesses who were present at the debriefing testified that it was Mr Micallef who gave the instructions as to what was to happen and the restrictions which were to apply. All agree that the lockdown was intended to be short-term pending an investigation by Mr Micallef. Mr Yapp, who was called to the meeting in his capacity as union delegate, testified that it was his suggestion that the instructions be in the form of a memorandum. Mr Burton's evidence was that the memorandum and its contents were issued on behalf of Mr Micallef, as directed. Mr Smith's evidence was that it was his understanding that Mr Micallef instructed Mr Burton to issue the memo. Mr Micallef's evidence was that he could not remember issuing the instruction regarding the memorandum. The meeting was mainly about the concerns of custodial staff in relation to inmate E's history and behaviour and him being housed at the prison hospital. I find that it was Mr Micallef who made the decisions in relation to the lockdown of inmate E and that the weight of the evidence is that Mr Micallef instructed Mr Burton to issue the memorandum. I note that Mr Micallef was not aware of the management plan when he gave his instructions and it may have been appropriate for Mr Burton to raise it at the debriefing. I find that it was Mr Micallef, not Mr Burton, who issued the orders contained in the memorandum. [268] For the reasons given above, I find that Mr Burton did not breach the management plan. [269] Concerns have been expressed about the treatment of inmate E during the lockdown period in relation to the length of the lockdown and the consequent lack of opportunity for showers and exercise, and the restrictions on cell contents, including the lack of towels and toilet paper and the state of the mattress in the cell. Ms Montgomery said she observed that there was no bedding in the cell. I note that the list of allowable items on the memorandum includes toilet paper and four blankets. The evidence was that Mr Micallef's instructions were that inmate E was not to be released from his cell for any reason bar an emergency, pending the investigation. Mr Burton's evidence was that the cell contents were discussed and agreed upon during the debrief. Nothing was put to Mr Burton in relation to the cell contents during cross-examination. As to the length of time that inmate E was locked down and unable to shower or exercise, Mr Burton's unchallenged evidence was that the investigation should have been conducted the next morning and that he made attempts to establish its status. He was not responsible for the length of time that inmate E was locked down and I so find. [270] The Secretary, based on the information provided to him, may have formed the view that Mr Burton's relationship with support staff was poor. Ms Fennell in her memorandum to Mr Partridge of 1 November 2005 expressed the view that health staff had issues with Mr Burton and CaseAction reports Mr Partridge as saying that Mr Burton has a poor relationship with support staff (although the documents provided to the Commission do not contain a record of CaseAction's interview with Mr Partridge). The evidence before the Commission does not lead to a conclusion that Mr Burton had a poor relationship with support staff. Nurse Eggleston described him as very fair, honest and compassionate. Nurse Plummer testified that Mr Burton was one of the most professional officers they had ever had, that he was caring, very "by the book", and treated all inmates equally, fairly and politely. Nurse Ferrar's evidence was that Mr Burton was a good communicator, very particular, very thorough, very approachable and very supportive of the nursing staff. Nurse Cassidy said that he had found Mr Burton to be professional, flexible, humane, open to discussion and the best security manager there and he held Mr Burton in the highest esteem. Social worker, Valerie Baxter provided a written testimonial in which she said that she had appreciated Mr Burton's objectivity, consistency, level-headedness, fairness, diligence and honesty. Custodial Officer Voss testified that Mr Burton was the best manager he had worked for and said that he had an excellent management style and was very cool, very calm, very direct and very fair. Mr Ransley said that he was a fan of Mr Burton and that Mr Burton's management style was "to the point" and that he worked well with everyone and was respected. The evidence before the Commission shows Mr Burton as having a good relationship with support staff, who apparently hold him in high esteem. [271] To briefly summarise my findings, I have found that:
[272] The Commission has had the benefit of five days of hearing involving sworn evidence and voluminous documentary evidence. Some of this material was not before the Secretary at the time the sanctions were imposed. The Secretary based his determination and the sanctions on the independent investigation conducted by CaseAction and applied them directly after the review by the State Service Commissioner. Whilst this hearing is not a review of the State Service Commissioner's decision, as noted earlier, that review relied upon, amongst other things, CaseAction's report. The evidence heard by this Commission provides additional information to that available to the Secretary at the time he made his determination. [273] Following the receipt of the CaseAction report the Secretary determined that Mr Burton had breached s9(2) and 9(3) of the State Service Code of Conduct in failing to act with care and diligence by ordering the locking of the gate and creating an unsafe work environment. I have made similar findings. He also determined that Mr Burton had breached 9(4) and 9(6) of the Code of Conduct by not following Director's Standing Orders relating to the management of inmate E. I have found that the evidence does not support this. [274] In view of my findings above, in particular that Mr Burton was not responsible for a number of actions that were attributed to him, I am of the view that the sanctions applied were too harsh and are, therefore, unfair. Nonetheless, the finding that Mr Burton failed to exercise due care and diligence and created an unsafe workplace is a serious finding as to performance and warrants an appropriate penalty after taking into account any mitigating factors. REMEDY [275] Section 31(1) provides:
[276] I have concluded that there is a difference between Mr Burton's view of custodial management and that of his superiors and that there has been unfairness to Mr Burton in the failure to bring this to his attention or to provide appropriate training in contemporary management practices. This failure is a mitigating factor and should be taken into account. [277] Mr Burton is a career custodial officer, with 25 years of service in the Tasmanian Prison Service. It is well established that length of service is a factor to be taken into account by the Commission. [278] The relationship between Mr Burton and other staff at the workplace is a consideration in terms of remedy. Based on the evidence, he is held in high esteem by many of his colleagues across both the health and custodial disciplines. RECOMMENDATIONS [279] The recommendations below impose a significant penalty and take account of the mitigating factors and the fact that some of the charges against Mr Burton are, on the evidence before me, unable to be sustained. [280] I recommend that Mr Burton be reclassified back to the level of Correctional Manager Grade 1 no later than 21 May 2007. That is, no later than nine months from the date the sanctions were applied on 21 August 2006. [281] I recommend that a warning be placed on Mr Burton's record, to remain there until 21 August 2008. [282] I recommend that Mr Burton be provided with appropriate training in contemporary custodial management practices and additional training in the proper management of emergency procedures before the date on which he is reclassified. [283] The file will remain open until such time as the applicant informs the Commission that the dispute is settled, if it is not, then it is open to either party to apply to have the matter brought on again for the purpose of submissions in relation to remedy and the issuing of orders.
P C Shelley Appearances: Date and place of hearing: 1 Transcript PN161 |