Officer denies intentionally kneeing restrained inmate—union fights termination, saying video doesn't show what employer claims
A correctional officer who was dismissed for allegedly kneeing a restrained inmate in the face has been reinstated to his former position after the Commission reviewed body camera footage multiple times and could not see the knee strike that formed the basis of his dismissal.
The employer relied on evidence from one investigator who claimed the footage clearly showed the officer lifting his knee into contact with the inmate, but the Commission found no visible knee strike, no injury to the inmate's face, and no complaints from the inmate about being struck.
The officer, who had never been subject to disciplinary action in over seven years of employment, was ordered reinstated with full back pay and continuity of service.
Incident involving restrained inmate and action team
The officer was employed as a first-class correctional officer at a correctional centre and had commenced employment in December 2017. He had never been subject to disciplinary action prior to the incident.
In November 2024, the officer was performing duties in the immediate action team when an incident occurred involving the officer and a number of other correctional officers.
Following the incident, the officer and other team members completed their incident reports. In early December 2024, the officer was notified of allegations of misconduct arising from the incident.
The officer was represented by his union throughout the disciplinary process. The union sought access to any video footage of the incident to assist the officer in responding to the allegations, and the employer provided the video footage in early January 2025.
Employer found inappropriate use of force
The union provided the officer's response to the allegations in early February 2025.
By mid-April 2025, the decision maker advised the officer that he had formed the view that the officer had engaged in misconduct in that he had used inappropriate force against an inmate on the relevant date, and this conduct was aggravated and disproportionate given that the inmate was restrained.
The decision maker also found the officer had failed to provide accurate information in an incident report dated the same day.
The decision maker proposed to terminate the officer's employment with an opportunity to resign. The allegation of the officer not affording the inmate proper medical care after receiving advice from health officials that he should attend the hospital for injuries sustained during a use-of-force incident was not sustained.
The union provided the officer's response to the proposed outcome in early May 2025, with the officer denying the allegation that he intentionally kneed the inmate in the face.
The decision maker considered the officer's response, and by mid-June 2025, advised that the final decision was the sanction of termination of employment with the opportunity to resign. As the officer did not resign, his employment was terminated in late June 2025.
Single investigator's interpretation of footage
The employer relied singularly upon evidence from one investigator despite the presence of four other correctional officers as well as a nurse during the incident. The investigator stated in his statement that the use of excessive force constituted a lifting of the officer's knee which made contact with the inmate's upper torso.
At no stage in his witness statement did he make reference to the officer's knee coming into contact with the inmate's face.
The Commission noted this change in the particularisation of the use of excessive force post the dismissal would provide a sound basis for a finding of a denial of procedural fairness, but stated there was no need to make such a finding for reasons that would become apparent.
The investigator was consistent in stating that the body-worn video footage captured by officers present clearly shows the officer lifting his knee into the inmate and coming into contact, firstly in his statement, with the inmate's upper torso, but in the dismissal letter, particularly with the inmate's face.
Counsel for the employer took the Commission to the video footage taken by another officer at around two minutes and 44 seconds into the footage and the officer's own body camera footage at around two minutes and 42 seconds.
Commission watches footage multiple times
The Commission took the opportunity during the adjournment to watch both sets of body camera video footage referred to by the employer on a number of occasions.
In neither video, at or around the time stated, could the Commission see the officer's knee being raised. Also, the Commission could not see the officer's knee come into contact with the inmate's face, nor the upper torso.
In addition, the footage from the officer's body camera at times showed the inmate's face following the incident and from the Commission's viewing of the footage, there was no apparent injury to the face, nor the upper torso of the inmate.
The video of both the officer and another officer's body-worn cameras also included audio. Prior to and during the incident, the inmate was very vocal, complaining about a sore shoulder and his finger.
At no stage during the incident or immediately after did the inmate complain of pain to his face, nor upper torso. Nor did he remonstrate nor complain that he had been assaulted, nor that he had been kneed in the face, nor upper torso.
The Commission stated this is what one would have expected had been the case, had the inmate been kneed to the face or upper torso.
Other reports made no mention of knee strike
Turning to the incident reports of the other officers who were present during the incident, none of these contained any reference to the officer using his knee on the inmate. The investigator gave evidence which was to the effect that he could not rely upon those statements, and he relied solely on the body camera footage.
In relation to the nurse who was present in the room during the incident, the officer pressed for the Commission to draw an adverse inference from the failure to call the nurse as a witness.
However, the Commission found the evidence did not disclose that the nurse told anyone that the officer had kneed the inmate in the face. Thus, it was not apparent that the employer should have called the nurse to give evidence, and there was no basis for the Commission to draw any adverse inference.
The Commission dealt with a submission from the employer that it should make a credit finding against the officer regarding the changing by him of one word in his witness statement.
The Commission found this was not an adequate basis to make a credit finding against the officer. The officer's evidence whilst in the witness box showed that he was prepared to concede when concessions should be made.
Did the employer fail to prove the case?
The Commission stated it was not prepared to make a credit finding against the officer, and was also not prepared to make a credit finding against the investigator. He was resolute in terms of cross-examination that what he saw in the video footage was a knee.
The Commission could not see it; it was not apparently evident, but the Commission was not prepared to make any credit finding against the investigator either.
Counsel for the employer rightly conceded that if the Commission did not find that the officer kneed the inmate in the head or upper torso then the misconduct in the first allegation was not made out.
Having regard to the video footage, the demeanour of the inmate immediately prior, during and after the incident, and the absence of any objective evidence of an injury sustained consistent with being kneed in the face or the upper torso, the Commission found the employer had not made out its onus in proving the conduct necessary to support the first ground.
Turning to the second ground regarding the incident report, the Commission noted that the investigator, whilst under cross-examination, conceded to the effect that if the finding of the Commission was that there was no use of the knee by the officer to the face or torso of the inmate, then the second ground falls away.
Policy allowed officers to reference body camera footage
The Commission turned to the policy regarding use of force reporting, which stated that officers must write reports from their own recollection of events independently from each other.
The policy stated that an officer wearing body cameras may view their own footage to assist in writing an accurate report in certain circumstances. It was not necessary for officers to detail every conversation or action that was clearly recorded. A reference to the relevant time markings would suffice.
The Commission found that under the policy, there was no need for the officer to detail every action during the incident, as body-worn video was available. This would apply even if he had kneed the inmate in the face or upper torso because it would have been captured by the body-worn video.
Having found that this did not occur, that was a moot point. The incident report, in the view of the Commission, complied with policy requirements, and as there was no use of a knee as alleged by the employer, there was no need for it to be contained within the incident report.
Given the above, the Commission was satisfied the employer had not made out its onus with respect to the second ground.
For the reasons already expressed, in particular that the employer had failed to make out the misconduct in both allegations, the Commission found the dismissal of the officer was harsh, unreasonable and unjust.
Officer's possible reinstatement
Turning to remedy, the employer submitted that the officer should not be reinstated, re-employed or receive any compensation by way of remedy. It was submitted that the officer's actions rendered reinstatement impracticable.
The Commission noted the evidence in support of this came from the investigator, and his evidence on this issue was predicated on the officer having undertaken the conduct in the first allegation.
As the Commission found that conduct did not occur, there was no basis for finding that reinstatement was impracticable.
The Commission ordered that the officer be reinstated to his former position, that the employer pay the officer any amount of loss of remuneration dating from the date of dismissal to his reinstatement, less any other income received, and an order for continuity of employment.
