Summary
The NSW Corrective Services dismissed a senior correctional officer in May 2021 after he had pleaded guilty to two charges of common assault against a co-worker with whom he’d had an extra-marital affair. The employer determined that the corrections officer violated the NSW Government Sector Employment Act but during the investigation of the incident/complaint, the senior corrections officer claimed that he and his co-worker had engaged in a consensual sexual relationship where they engaged in a “lot of sexual horseplay.” The senior corrections officer was dismissed.
Misconduct in personal life impacted work colleague and the work environment—it is a valid ground for termination
A senior corrections officer had been employed since 2011. He received a commendation for bravery in 2016, and he was promoted to Senior Correctional Officer in May 2017. He had been trained in the core values of the public service and he was obliged to conduct himself according to the code of ethics and conduct even whilst he was off duty if his conduct had the potential to damage the reputation of the government and when his actions constitute misconduct.
Prior history of use of excessive force
In 2018, the corrections officer was found to have used excessive force against inmates on two occasions in February 2018 and failing to report the use of force and submitting a misleading report. He was penalised with a fine.
Extra-marital affair with a co-worker
The corrections officer, who was married, engaged in an intimate personal relationship with a co-worker beginning in November 2018. The corrections officer was the co-worker’s superior officer. Their romantic affair ended 1 year after their relationship began. The co-worker filed a complaint against the corrections officer, who slapped her body, poked her stomach and pinched her, leaving red handprints all over her body. He had bitten her on the neck, as well.
Text messages documenting physical violence inflicted on co-worker
In their text messages to each other, the corrections officer said that he was only playing with the co-worker and that if she doesn’t tell him at the time, he wouldn’t know that he was already hurting her. The co-worker responded by saying that she did tell him every time that he hurt her.
On 17 September 2019, the corrections officer slapped the victim’s stomach again even when she had asked him not to hurt her numerous times. Then, the corrections officer bit her in the arm. The co-worker complained to the police.
Complaint against and arrest of the corrections officer for assault
The corrections officer was arrested and charged by the police with common assault related to domestic violence on the co-worker. Later, he was charged with stalking and intimidation of the co-worker as well. The corrections officer pleaded guilty to common assault in exchange for the withdrawal of the charges of stalking and intimidation.
Disciplinary action at work
On 6 May 2021, the prison director sent the corrections officer a letter informing him that they were proposing to take disciplinary action against him that may result in his termination. The prisons director also provided the corrections officer the opportunity to submit a written or oral response before the final decision was to be made.
Termination with opportunity to resign
The corrections officer attended an interview accompanied by a support person. Five days later, the decision to terminate his employment was confirmed but he was given the opportunity to resign before the decision became effective in 7 days. The corrections officer resigned on 28 May 2021.
Appeal of the decision to terminate his employment
The corrections officer appealed his termination for misconduct before the Industrial Relations Commission. The corrections officer maintained that he and his co-worker maintained a consensual sexual relationship that had a lot of sexual horseplay and his co-worker liked to do weird things in the bedroom, but he admitted that he had inadvertently went a bit too far when he did “tickle wrestling” with her.
Consensual sexual horseplay
He also gave evidence that the co-worker was mentally unstable as she herself texted him that she felt suicidal at times and took medication. In fact, when the police came because of the co-worker’s complaint, the corrections officer claimed that the co-worker was manipulative and compulsively lied. The corrections officer provided one email from the co-worker where she expressed how she loved him and how she was sorry that she hurt him. He claimed that his co-worker had never told him to stop the horseplay and that the co-worker was free to leave the relationship at any time, but she stayed on.
Termination too harsh and not work-related
Even if had admitted to the assault of his co-worker, the corrections officer argued that he should not have been terminated from employer because the misconduct was not committed in the course of his employment, nor did it tarnish the reputation of the public service.
His relationship with his co-worker was personal and private and any misconduct he committed within the context of the personal relationship was never work-related and the misconduct did not occur within the context of work. However, the corrections officer admitted their disagreements, brought on by jealousy, often spilled into work, but he never neglected his duties.
The corrections officer also asserted that he was never disciplined for poor performance. He had never been suspended from work at any time after he was found guilty of assault until he resigned, and had carried on active duty.
Despite having pleaded guilty to assaulting his co-worker, should he have been found guilty of a misconduct and terminated from his employment?
Turbulence in relationship impacted work of co-worker
The IRC found that the relationship was turbulent and the feelings they communicated through text messages were often conflicting and contradictory. However, the IRC repudiated the version of the corrections officer’s characterisation of the relationship.
While it may be true that the turbulence in their relationship never impacted the good performance of the corrections officer, it impacted the work of the co-worker: The corrections officer was often her direct manager. During their night shifts, the corrections officer who was the senior officer ensured she was placed very close to him.
The corrections officer always made sure that she never worked alone with another male employee and accused her of flirting with or sleeping with one of their male colleagues. The corrections officer emailed or called her during work hours and even hacked into her work computer and read her emails. He often followed her home from work or waited for her in the car park even when she had expressed that she did not want to see him.
Corrections officer failed to perform as expected of him as a public servant
The senior corrections officer had the responsibility to guard and rehabilitate inmates and he was expected to set an example for them. The corrections officer did not exhibit any credible remorse for his conduct nor did he show any genuine insight into his conduct. He had prior disciplinary history involving excessive use of force on inmates.
No argument or evidence raised by the corrections officer persuaded the IRC that his termination for misconduct was harsh, unfair or unreasonable. The corrections officer had breached the code of conduct: he failed to demonstrate integrity, accountability and respect; he failed to engage in personal and professional conduct that upheld the reputation of the public service; he failed to relate professionally to his colleagues and act with courtesy and fairness. He has brought discredit to himself and to his employer, failed to model exemplary behaviour, and act as a positive influence in his community.
His appeal from the decision of termination was dismissed.
Source:
Sparkes v Industrial Relations Secretary in respect of the Department of Communities and Justice (Corrective Services NSW) [2022] NSWIRComm 1021 (31 March 2022). http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWIRComm//2022/1021.html
