A prison officer who was fired after being caught with a cell phone at Westgate has won a case for unfair dismissal.The authorities must now reconsider the case of Darren Pitcher, after a judge ruled it may not have been considered “fully and fairly”.Mr Pitcher, 43, served as a prison officer for five years with a clean record before being caught with the cell phone in February 2009 and fired. He was the first officer to be dismissed for breaching Commissioner of Prisons [COP] Edward Lamb’s policy prohibiting possession of unauthorised cell phones within the prison.The policy aimed to address what Puisne Judge Ian Kawaley described as the “well-recognised and serious problem of such items being illicitly supplied to prison inmates”. However, Mr Pitcher argued through his lawyer, Lauren Sadler-Best, that the penalty of dismissal was “harsh and disproportionate”.He was caught when two other officers searched the Westgate canteen office on February 18 2009. The court heard Mr Pitcher was seated at his desk while two inmates were in the room. When informed he was to be searched, Mr Pitcher stated “you don’t have to search me, what you want is right here,” before reaching into his trouser pocket and producing the BlackBerry phone plus a prison envelope containing $1,500.A prison report on the incident does “not expressly assert that the investigating officers suspected or believed that the cell phone was intended for supply to prisoners,” according to the judge. According to Mr Pitcher, he satisfied the Commissioner that the envelope contained his own cash, withdrawn from his bank account for use on vacation the following day.Mr Pitcher was charged on March 3 2009 with “simple possession” of the phone, without the intent to supply it. He pleaded guilty saying: “This was an honest mistake due to problems arising at home when I arrived for duty at Westgate. I give my sincere apology for my oversight.”He was fired, but the Prison Officers’ Association [POA] appealed the decision to the Public Service Commission [PSC] in September 2009. The POA told the PSC there were at least two previous incidents where officers were found with cell phones in areas where inmates were allowed, but those officers were not fired.Lt Col Lamb told the PSC the circumstances of the Pitcher case were more serious than previous cases. The PSC eventually turned down Mr Pitcher’s appeal “based on the fact that he had a cellular telephone in a very sensitive area of the prison where inmates are allowed”.Lt Col Lamb told Mr Pitcher’s Supreme Court hearing that the predominate reason for firing him was the cumulative effect of another breach of the cell phone policy and the perceived need for a deterrent penalty.“Lives are put in danger when a cell phone is present in a prison setting, especially in the presence of inmates, as was the case with Mr Pitcher,” he said.However, Mr Pitcher told Supreme Court: “I know of several previous incidents where officers had been found with cellular phones on the compound and have received penalties either of a fine or a period of probation or both.”Making his ruling last Friday, Mr Justice Kawaley said there was no evidence to show the PSC considered the “crucial factual issue” of whether similar cases resulted in lesser penalties.The judge said he could not tell why Mr Pitcher was dismissed instead of being fined, put on probation or demoted, as the PSC failed to give sufficient reasons for its decision. He was unable to conclude that the appeal to the PSC was “fairly and fully heard”.The judge also noted there was no clear evidence that Mr Pitcher “was proved or even suspected of a deliberate breach of security”. He sent the matter of his punishment back to the disciplinary authorities for reconsideration, and awarded Mr Pitcher the costs of the case.The judge stressed that “nothing in this decision should be construed as undermining in any way the operational judgment of the Commissioner of Prisons that the risk of cell phones being smuggled in to inmates requires severe deterrent penalties”. He explained the reason for his ruling in this particular case was the disciplinary processes were “found wanting”.Craig Clarke, chairman of the Prison Officers’ Association, welcomed the ruling.“We felt his dismissal was unfair. Other people who had done similar things were not dismissed. It’s all about consistency,” said Mr Clarke.“They are going to have to give him a lesser award [punishment]. We are pleased and happy. Hopefully he can come back and be a prison officer.”Lt Col Lamb declined an invitation to comment. Mr Pitcher said he would phone back to discuss the matter, but did not do so by press time.