Following an investigation into a November 2015 incident, the Officer was terminated by letter on 8 June 2016. It was alleged ‘excessive force’ was used by ‘deploying Oleoresin Capsicum Spray’ (OC spray) during an incident in the ‘early hours’ of 7 November 2015.

The Officer was ‘called to attend a disturbance at the upper concourse’ of a Perth train station around 1am. When he arrived at the scene with his partner, there were two abusive and apparently intoxicated youths. It was unclear at the time that one of the offenders was 12 years old as he appeared to be 15 or 16. When instructed the youth to leave the concourse area they allegedly became ‘abusive’ and ‘made a number of threats of physical violence’. The Officer alleged one of the youths made repeated threats to spit at him, and the officer was concerned of infection from a communicable disease. Whilst the youth was not on the property of the train station, it was demonstrated by CCTV footage that the OC spray was only deployed when the youth appeared to try and spit at the Officer. Multiple warnings were given prior to the OC spray being used, and it was accepted that aftercare was offered to the youth, albeit it was declined and the youth continued to be abusive towards both Officers.

The General Manager conducted an investigation that included speaking with the other Transit Officer present and reviewing CCTV footage. When terminating the Officer, the General Manager felt they had breached ‘various parts’ of the Transit Officer Operations Manual and that he ‘seemed to have difficulties with compliance with procedures’. The options of demotion or transfer were considered but it was felt these options were inappropriate and the Officer’s employment was terminated. It was the view of the Commission that with the ‘benefit of hindsight’ the Officer could have ‘taken an alternative course by creating more distance’ between himself and the youth. This does not ‘detract from the fact that finding himself in the position he did’ the Officer ‘acted with reasonable cause’.

The Commission was satisfied the Officer used the OC spray in self-defence and ceased to use it after its first application. It was ‘commensurate with responding’ to the threat they genuinely believed they were being exposed to, and it was only used once a warning was issued. When reviewing the Manual all Transit Officers are bound by, it was found the Officer did not contravene the sections alleged by the General Manager. When asked about the incident during the investigation, it was alleged the Officer admitted to engaging in breaches of discipline. This conversation related to whether the Officer considered his use of force to be reasonable and ‘within policy and guidelines’, he claimed it did, but that he was ‘obviously wrong’ because of the investigation. Paired with their ‘benefit of hindsight’ into how they could have handled the situation, this was presented as an admission of using excessive force, however the Commission was not convinced of this.

When considering these factors and the situation in full, the Commission found the dismissal of the Officer was not a ‘proportionate and appropriate penalty’ for his conduct. As such an order was issued for the Officer to be reinstated and demoted two levels, with payment for remuneration lost and continuity of service.

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The full case can be found PDF here