When is reinstatement likely? An inmate escaped, but the correctional services officer kept his job
Assisted by Holly Pitt
Although reinstatement is supposed to be the “primary remedy” in unfair dismissal cases, it happens relatively rarely, often because the employee doesn’t really want to return to work for the employer, or because the relationship has broken down completely, so that putting employer and employee together again will be futile. But if the employee pursues reinstatement seriously, when is it likely to be ordered?
In a recent case, Collins v Industrial Relations Secretary on behalf of the Department of Justice (Corrective Services NSW) (NSWIRC,2017), a senior correctional services officer was dismissed for his involvement in the escape of an inmate.
The officer was escorting the inmate to hospital as the inmate had claimed to have swallowed razor blades. Things went awry when the inmate requested a shower in the hospital room’s en suite bathroom.
The officer allowed a fellow officer to remove the restraints of the inmate so that the inmate could shower without risk of injuring himself further but once inside the bathroom, the inmate closed and blocked the door, and escaped through a window. He was caught a week later.
Corrective Services NSW conducted an investigation and dismissed the officer because he didn’t follow surveillance procedures, authorised the removal of the restraints on the inmate and made misleading statements about the door to the bathroom remaining open during his shift.
The employee made an unfair dismissal, and claimed reinstatement. He argued that his conduct wasn’t serious enough to warrant dismissal, despite conceding some poor judgement on the day of the incident, and that dismissal was disproportionate, compared to the treatment of other officers involved.
The NSWIRC decided that the misconduct of the employee wasn’t sufficiently deliberate or significant to warrant dismissal, and gave particular weight to the employee’s 22-year service and good employment history, particularly as other officers involved received significantly more lenient sanctions.
The Commission ordered the reinstatement of the employee.
This case highlights some points employers should consider before terminating employment:
- It is essential that you consider how serious the misconduct of the employee was;
- Whether they acted reasonably in the circumstances;
- The employee’s employment history - Do they have a history of poor conduct or this is a first-time slip up, so they should be cut some slack; and,
- Will this look disproportionate to the action you’re going to take against other employees involved in the incident (for example, the officers who allowed the door to be closed).
A clean record, long service, difficulties obtaining other employment, ambiguities about fault, and inconsistencies in disciplinary consequences for others in this or other cases, may all help to convince an industrial tribunal to put the employee back in their job.
If you have any questions about employment terminations please do not hesitate to contact our Employment Law Team in Parramatta and Norwest: