Impressive work history
A correctional officer began working for the state of Queensland in 2014. He was the opportunity to take on the role of Acting Correctional Supervisor for two years. He accomplished his certifications and the trainer and assessor assessments. He also served on the workplace health and safety committee and attended a leadership training session. He contributed as a representative for the Violence Prevention Committee and other officers asked him questions on policy, procedure, and management. He aspired to be appointed to the substantive position of correctional supervisor.
Observed to be dozing off for short periods whilst on duty
On 10 October 2018, the correction officer was supposed to be alert and performing constant observation of a prisoner at the Hospital Secure Unit who had been self-harming, but the correctional officer closed his eyes, dozed off or went to sleep for short periods of time, thereby creating a risk to himself, to his fellow officers, to the prisoner, and the public. In sleeping while on duty, he either committed a misconduct or performed his duties carelessly, incompetently or inefficiently.
Reports of other officers and nurses on duty
Another officer on duty testified that he was doing his rounds and saw that the correctional officer appeared to be asleep. He then confronted the correctional officer and offered him a break if he needed it but he never told the correctional officer that he had been asleep. A nurse on duty also testified and emailed a report to the supervising officer of the correctional officer that she had observed the correctional officer sleeping.
Quick response during an emergency
However, there is evidence that when the prisoner fell to the ground after moving from the bed to the toilet, the correctional officer immediately raised the alarm for medical assistance. The CCTV footage also showed that the correctional officer had taken steps to ensure that he maintained his alertness throughout his shift: he read, talked with others, drank tea, stood up and moved from time to time. He did not lie down or put himself in a position that increased his risk of falling asleep.
CCTV footage showed that the correctional officer dropped his head and nodded off to sleep but was immediately startled awake. The correctional officer did not recall having fallen asleep nor was he aware that he had nodded off to sleep. He was also not told by anyone that he had been asleep. There was evidence from his fellow officer on duty that he had to shake the correctional officer two or three times as the correctional officer was falling asleep continually. However, the testimony of the fellow officer on duty contradicted the CCTV footage.
Declared unfit for duty and suspended
He was reported to have slept also on 15 October 2018 and 28 January 2019. These allegations of sleeping while on duty disrupted the correctional officer’s career. An investigation of the Ethical Standards Group found three “unfit for duty” allegations to be substantiated and the correctional officer was placed on paid suspension more than a year after the last incident on 28 January 2019. He was then ordered to show cause why he should not be terminated.
Investigation conducted a year after the last incident
In his response to the show-cause, the correctional officer then revealed that at the time of the incidents, he had an undiagnosed and untreated medical condition (sleep apnoea) which have since been diagnosed and treated. The correctional officer had taken steps to remedy the impact of his medical condition on his ability to perform his role as correctional officer. He also explained that sleeping on the job was not intentional on his part.
Dismissed from employment
Just the same, the correctional officer was terminated in August of 2020. The correctional officer then lodged an application questioning his dismissal, alleging that his termination was harsh, unjust, and unreasonable. He prayed for reinstatement.
Scope of the Commission’s review
The Industrial Relations Commission of Queensland found that when the application is lodged based on an allegation that the dismissal was harsh, unreasonable, or unfair, the task of the Commission is to assess whether the Commission should intervene on a question that the employer should make. If the employer conducted a full and extensive investigation and the employee had been given the opportunity to respond to the allegations made against him, then the Commissioner will not interfere with the employer’s finding based on reasonable grounds that the employee committed a misconduct that warrants his dismissal.
Definition of misconduct
A misconduct is any inappropriate or improper conduct in an official capacity or in a private capacity that reflects seriously and adversely on the public service. Misconduct is characterised by a deliberate departure from accepted standards, serious negligence that shows indifference, or an abuse of the privilege and confidence enjoyed by the employee.
Range of disciplinary actions that can be taken
The disciplinary action that may be taken against a public service employee may include termination of employment, reduction or downgrade of the classification or duties, transfer or redeployment; forfeiture or deferment of a remuneration increment or increase, reduction of remuneration level, imposition of a penalty or reprimand.
Burden of proof
The correctional officer had a burden to show that his dismissal was unfair, but the employer also needs to prove that the allegations were substantiated and that the actions satisfy the definition of misconduct.
Findings of fact show officer had indeed dozed off
The Commission found that, indeed, the correctional officer was neither alert not performing constant observations the prisoner while he was on duty; he had brief periods of “microsleep” because he had undiagnosed and untreated sleep apnoea; had not intended to sleep on duty; was not even aware he had fallen asleep on duty; and did not know that he had the tendency to fall asleep.
Dozing off did not automatically mean misconduct
The Commission found that just because the correctional officer took microsleeps, it cannot be automatically inferred that he had been derelict in the performance of his duties especially since he had not done any blameworthy conduct. The health condition of the correctional officer failed to reach the desired standard but without any blameworthy conduct, his actions cannot constitute misconduct.
Officer had taken steps to remedy his condition
The sleep apnoea from which the correctional officer was suffering was only diagnosed and treated around the time of the investigation (nearly 12 months after the incident took place). He had taken steps to reduce the impact of his condition such as losing 12 kilograms of weight, using a CPAP machine while sleeping to ensure uninterrupted sleep at night, going for regular check-ups.
Deficiency in investigation and lack of procedural due process
There is evidence that the correctional officer was not informed or given the opportunity to respond to all the evidence produced against him. The investigator also accepted the evidence provided by the colleague of the correctional officer who had also been on duty with him without consulting the CCTV footage to confirm if the evidence of the colleague was consistent with the CCTV footage. The investigator also spoke to only two witnesses and not to all the possible witnesses to the alleged microsleeping incidents. Thus, the conduct of the investigation was deficient.
Open bias of official who decided on termination of the officer
The person who decided to terminate the correctional officer was openly critical of the correctional officer’s character during the trial. There was also evidence to show that the person who decide to terminate the correctional officer disregarded the recommendation of the investigating committee for each allegation to give the correctional officer only a formal written reprimand or written warning. That same decision-maker did not act upon the recommendations and decided to dismiss the correctional officer from employment. This made the dismissal unreasonable.
Dismissal was harsh
The correctional officer had been working for 6 years and he was held in high regard by the General Manager of the prison unit. In fact, after the period of suspension and during the pendency of the investigation, the General Manager reassigned the correctional officer so that he fulfilled all his duties managing prisoners and other officers. At the age of 56 and given the Covid-19 pandemic it would be highly unlikely for the correctional officer to find alternative employment. The correctional officer has already been medically cleared and declared fit for duty. These circumstances made the dismissal harsh.
The correctional officer was reinstated to his former position with continuity of employment and awarded compensation for lost income.
Weaver v State of Queensland (Queensland Corrective Services) [2021 QIRC 413 (6 December 2021)
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