A Corrections officer who pushed an elderly prisoner to the ground during an altercation where his testicles were grabbed was unjustifiably dismissed.
But the Employment Relations Authority (ERA) found the officer's conduct was so egregious he wasn't entitled to any damages.
Corrections officer David Walford was working at the Christchurch Men's Prison on March 29 last year when he had an altercation with a 79-year-old inmate.
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The incident happened in a special unit where inmates are held who need protection from other prisoners - for example sexual offenders or those with gang connections.
In its decision, the ERA said the prisoner was managing the prison's kit locker when another prisoner swore at him and had refused to exchange a sweatshirt for him.
Authority member Jenni-Maree Trotman found that what was more likely than not to have happened was that after talking with the prisoner in the kit locker, Walford pushed him as they were leaving.
The elderly prisoner can be seen on CCTV footage falling to the floor.
While he was on the ground, the prisoner kicked out at Walford who tried to swipe away his legs before grabbing one leg and turning the inmate 180 degrees.
Walford tried to pick up the prisoner under his armpits but dropped him from a small height back on to the concrete.
Again, the Corrections officer attempted to pick up the prisoner but he again dropped him, this time the man fell on to his right side with his right hand underneath him.
At this point, the prisoner grabbed Walford's testicles before the guard restrained the inmate and slapped him over the head twice, kicked his left shoulder and walked over him.
An internal investigation was launched which found Walford used inappropriate force.
At the point the prisoner started to lash out while on his back on the ground, the investigator said that would have been the right time to stop any contact with him.
And as the prisoner's behaviour continued, there were "several" other points where the officer could have stepped back.
When Walford responded to the findings of the investigation, he said he deeply regretted the incident and that he should have disengaged and walked away.
But he didn't want to lose his job and thought disciplinary action and further training was an appropriate punishment.
"I accept that I made the wrong decision at the time. However, I have learnt from my mistakes and will not repeat them."
On September 5, the officer was dismissed immediately with four weeks' pay in lieu of notice.
But the ERA later found this dismissal to be unfair as the process followed
by Corrections was seriously flawed because:
- • Corrections failed to give Walford all the relevant information, like the medical notes from the prisoner's injuries, so he couldn't respond to it
- • The handwritten notes from the investigator's interview with Walford were inconsistent with the typed notes given to him
- • Corrections didn't successfully investigate the allegations because the investigator didn't have the "necessary investigative skills and experience"
- • It didn't follow the process set out in its own Procedures Manual
- • Corrections did not sufficiently raise its concerns with Walford or, as
required by the Procedures Manual
However, Trotman found that while Walford was unfairly dismissed, his behaviour was egregious misconduct.
"The vulnerability of the prisoner, and the significant power imbalance, is a
factor that adds to the egregious nature of the incident.
"At the time of the incident the prisoner was 79 and had a number of significant medical concerns.
"These included dementia, a colostomy bag and other age related health concerns.
"Mr Walford's actions endangered the prisoner and could have endangered himself and other Corrections officers working in the unit at the time if the other prisoners had decided to join in."
Because Walford's conduct "was so egregious", Trotman found no remedy should be awarded even though he was unjustifiably dismissed.