Industrial Relations Commission of New South Wales CITATION: Sexton v Public Employment Office by its Agent the Director General of the Department of Juvenile Justice [2005] NSWIRComm 1172 APPLICANT John James Sexton PARTIES: RESPONDENT Public Employment Office by its Agent the Director General of the Department of Juvenile Justice FILE NUMBER(S): 1587 of 2005 CORAM: Tabbaa C LEGISLATION CITED: Industrial Relations Act 1996 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No.3) [1990] 35 IR 70 at 74, 83-84 Bringinshaw v Bringinshaw [1938] 60 CLR 336 at 361 Wang v Crestell Industries Pty. Ltd. [1997] 73 IR 454 at 463 Department of Corrective Services and the Public Service Association Amalgamated Union of NSW concerning a threatened dismissal [1998] NSW IR Comm 542 (2 Oct, 1998) CASES CITED: Woods v Hunter Area Health Service [1999] NSW IR Comm 102 (19 March, 1999) per Harrison DP HREA on behalf of Robert John Drinan v Hunter Area Health Service [2002] NSW IR Comm 270 NSW Nurses Association on behalf of Gary Jeffrey v Department of Community Services (Unreported, IRC NSW, McLeay, C, 553 of 2000, 14 July, 2000) Luke v Handicapped Children's Centre (Unreported, IRC NSW Connor, CC, 2586 of 1993, 16 March, 1994) Samad v Public Service Board Appeal No. 1395 of 1982, 05/11/1982 HEARING DATES: 10/20/2005; 10/21/2005 DATE OF JUDGMENT: 10/21/2005 APPLICANT Mr D Chin of Counsel with Ms. A. McRobert, Solicitor Jones & Staff & Co LEGAL REPRESENTATIVES: RESPONDENT Ms T Anderson of Counsel with Mr P Houston, Manager Employment Relations & Professional Conduct Unit Department of Juvenile Justice DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: TABBAA C 28 October 2005 Matter No IRC 1587 of 2005 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of John James Sexton) and the Public Employment Office by its Agent the Director General of the Department of Juvenile Justice Application by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of its member John James Sexton re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 REASONS FOR DECISION [2005] NSWIRComm 1172 1 At the conclusion of the arbitration proceedings on 21 October, 2005 in the above matter, I issued the following decision: 1. Having considered all of the evidence tendered before the Commission, the authorities that had been cited, the evidence on oath of Mr. Sexton and having viewed the CCTV footage, I have come to the conclusion that an urgent determination is required because of the circumstances in which the Applicant is currently placed. I have therefore decided to issue an ex tempore decision today. Reasons for the decision will be available early next week. 2. In determining whether summary dismissal of Mr. Sexton was justified, I took into consideration the nature and degree of the conduct in question. 3. Guideline 1 of the Department's procedures permits the use of force as the last resort in managing a dangerous or threatening situation. I accept the submission, made on behalf of the Applicant, that cognizant of the fact that the clients at those centres may be a mix of very difficult, sometimes erratic, sometimes suicidal or violent young people, the legislation has recognised that, on occasion, it is inevitable that Youth Officers will have to engage in the use of force and therefore provided guidelines as to when the use of force would be tolerated. One of such instances relates to self-defence - the ground upon which Mr. Sexton is relying. 4. However, I accept the submission on behalf of the Respondent that it is not acceptable for it to be left to each individual Juvenile Justice Youth Officer to determine the appropriate time subjectively. They have to apply that provision in the knowledge that it may be subject to an objective assessment if the proper procedures have not been followed. 5. Mr. Sexton provided a very impressive detailed account of welfare work he had undertaken with Christian organisations since the tender age of 14. In addition, his career path reflected a similar interest in youth and community work. He had a Diploma in Youth and Community Work and Certificate 3 in Juvenile Justice. His statement in these proceedings revealed that he continued to receive approaches to involve himself in welfare and youth-related social activities. It was not in issue that he has had, albeit for this incident, an exemplary record with the Department. 6. Mr. Sexton had adopted the habit of reading up on the detainees to acquaint himself with any information he may deem necessary in order to interact with and manage them. I do not criticise that practice and, in fact, commend it as a method by which the Youth Officers may not only perform their duties better, but also ensure their own safety. 7. That practice, however, led Mr. Sexton to, in my opinion, genuinely believe that he had to act in self-defence to resist what he considered to be an imminent and reasonably apprehended physical threat posed by KK. I agree with the submission on behalf of the Respondent, however, that had he moved to diffuse the situation at the time the first threat was made, KK may not have become emboldened by what he perceived to be inaction and probably, in his interpretation, a sign of weakness. I accept Mr. Sexton's evidence, however, that his inaction had been a result of his compassion for KK. He believed KK was playing up because it was Christmas Day and he had been one of the few who had not received any visitors. 8. I agree that this is a very hard case. It is my view that Mr. Sexton needed to be disciplined but not to the extent that he has. Summary dismissal was harsh and unreasonable in the circumstances. In addition, I am firmly of the view that the notification to the Commission of Children and Young People ought not to have been a notification under category 1 classification. 9. I therefore make the following directions in order to redress the situation: ORDER 1. The Public Employment Office (by its agent the Director-General of the Department of Juvenile Justice) shall re-instate Mr. John James Sexton to the position of casual Youth Worker at the Riverina Juvenile Justice Centre effective 08 March, 2005; 2. Mr. John James Sexton shall tender his resignation effective from midnight on 08 March, 2005; 3. Mr. Sexton shall not be entitled to any further remuneration or statutory entitlements from the Respondent; and 4. The Respondent is directed to notify the Commission of Children and Young People that notification had been made under the wrong classification and that the appropriate classification is category 2 and not category 1. 10. I order accordingly. 2 What follows is the background to that decision. Background 3 The Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales filed an application on 29 March, 2005, for relief relating to the alleged unfair dismissal of John James Sexton, a member of that Association, by the Public Employment Office (by its Agent the Director-General of the Department of Juvenile Justice). 4 Mr. Sexton, 42 years of age, tendered a statement in the proceedings in which he detailed a very impressive account of welfare work he had undertaken with Christian organisations since the tender age of 14. 5 His career path reflected a similar interest in youth and community work. He obtained, amongst other qualifications, a Diploma in Youth and Community Work in 1985 and Certificate 3 in Juvenile Justice in 2004. 6 On 21 September, 2003, Mr. Sexton commenced employment with the Respondent as a casual Youth Worker at Cobham Juvenile Justice Centre. By the time he left Cobham in November 2004, he had acted up as a Case Worker for about 6-8 weeks. 7 In or about April 2004, he was converted to a s. 27 temporary employee pursuant to the Public Sector Employment Management Act 2002 on a rolling 3-month contract. 8 During the first week of November 2004, he accepted casual employment at the Riverina Juvenile Justice Centre (RJJC) in order to accept a volunteer position managing and restoring the River Crest Youth Camp site at Tumut with his wife. 9 The Applicant stated that the differences in the management styles at Cobham and at the RJJC were distinctive and left him feeling vulnerable at the latter. Those differences related particularly to staff ratio per detainee and discipline of detainees. Cobham had adopted a stricter regime with detainees and usually had one Youth Officer (YO) per four detainees while RJJC had double the number of detainees supervised by one Youth Officer. Mr. Sexton also gave me an example of the radio communication used at both Centres and stated that the Cobham hands free, private system of communication was still to be introduced to the RJJC when he was dismissed. Training 10 The Applicant stated that he had undergone a 6-week training period when he commenced employment with the Respondent. In October 2003, he had attended a 2-day training course on the use of force. The first day had involved practical training in the proper use of force techniques and the second day was spent learning the theory of use of force and the appropriate time to utilise force. 11 The Applicant further stated that he had experienced difficulty in reconciling the techniques suggested by the Respondent with the actual situations that arose, normally very quickly and without warning, when drug usage was involved. 12 He advised that he had occasion to use force in the past and he had done so successfully and completed the necessary paperwork. The Alleged Assault 13 Mr. Sexton was usually rostered on in the Lachlan Unit of the Centre. On 24 and 25 December, 2004 he was rostered on the day shift in the Murray Unit. Detainee KK had been transferred from the Lachlan Unit to the Murray Unit because he did not get on with a couple of other detainees. Mr. Sexton had adopted the practice of familiarising himself with the background to each new detainee he was going to work with prior to commencement of his shift. He recalled that he had read KK's file on 24 December, 2004 and ascertained that he had "a very explosive temper", was quite regularly reprimanded by staff for abusing and assaulting other detainees and assaulted staff members. 14 Mr. Sexton stated that, in his experience, detainees were more prone to stress and anxiety around the Christmas period as a result of loneliness and/or depression caused by the fact that they have not received family visitors or gifts. He recalled that KK had not had any visitors at Christmas 2004. 15 The Unit was manned by a Unit Co-Ordinator and three Youth Officers on 25 December, 2004. The Co-Ordinator was not in the unit for most of the shift and the 3rd Youth Officer had taken three or four detainees to the Gym. That left the Applicant supervising five detainees. 16 YO McGavin left the recreation area and went into the Unit Co-Ordinator's office. He therefore did not have a view of where the incident occurred. 17 Mr. Sexton described the events that ensued as follows: At 12 pm he was sitting on the table in front of the Co-Ordinator's office in the recreation area. KK was in the kitchen area picking on some of the younger detainees which prompted the Applicant to warn him to cease that behaviour or risk being written up (for subsequent punishment) and spending the afternoon in the holding room. KK turned his attention towards Mr. Sexton and allegedly said in a manner that the Applicant found threatening, aggressive and loud, words to the effect, "Don't bring your Cobham shit down here. I'll kill all you c….ts " 18 The CCTV footage confirmed that KK moved from the kitchen area and came up behind Mr. Sexton who was sitting on a desk with his back to the wall outside the Co-Ordinator's office. Mr. Sexton had not heard him owing to the noisy conditions in the recreation room (Play station and TV were both on). 19 The CCTV footage confirmed that he had a rolled up piece of paper in his hand through which he had allegedly whispered in Mr. Sexton's ear words to the effect, "I am going to get you, c….t". 20 KK had walked away diagonally behind Mr. Sexton, to the entrance area, and allegedly said in a very loud and aggressive tone, "I am going to kill you, you c…t". 21 The distance between them was about three metres. KK started walking back towards him allegedly repeating the threat, "I am going to kill you, you Cobham c…t". Fearing for his physical wellbeing, Mr. Sexton got off the table and held up his arms in front of him towards KK. His hands were open and his fingers were pointing up to keep space between KK and himself, as per the Department's procedure. Concerned that KK intended to physically attack him, Mr. Sexton allegedly stated, "Back off or I'll write you up" and moved towards KK as KK continued to move towards him ignoring the warning to back off. Instinctively he had reached for the microphone on his radio then realised he was not at Cobham and had no microphone or earpiece. He resumed his departmental stance and ultimately contact was made between the two as both had continued their advance. 22 The CCTV footage was deficient to the extent that there was no sound recording. Certainly the scene described above was not discernable from the footage. Mr. Sexton explained that it had all happened "in a split second", "it was over in less than 2 seconds" and he was not sure who had walked into the other. 23 Mr. Sexton stated that it had not been his intention to deliberately push KK away. He merely intended to hold his ground. He described what ensued as " a minor collision". KK had merely stumbled. Neither had been injured. 24 KK ceased advancing towards him. Assured that there was sufficient space between them, Mr. Sexton had dropped his arms to his side and allegedly said, "Keep going and I'll write you up". 25 YO McGavin came out of the Co-Ordinator's office and escorted KK into the kitchen area. Mr. Sexton, feeling anxious and stressed, went into the Co-Ordinator's office where he stayed for about 10 minutes. He completed a computer generated incident report. He noted that the Minor Misbehaviour Book, Use of Force Book and Incident Report Book were not in the office. 26 He admitted that, in hindsight, it would have been more prudent for him to have completed a "use of force" report but at the time he had thought it unnecessary as the physical contact had been fleeting and very minimal. In addition, the minimal contact had been the last thing on his mind as he had been pre-occupied with the verbal threats he had received. 27 Mr Sexton resumed his normal supervisory duties and everything went smoothly during lunch. He had offered to take detainees to the pool and KK and another detainee went with him. They were joined by several other detainees and a female staff member from the Lachlan Unit. The detainees seemed to get on for about 20 minutes before his charges began to demonstrate aggressive behaviour towards one of the detainees from Lachlan Unit. 28 Mr. Sexton warned that he would take both back to the Unit if they did not cease such behaviour. He then radioed the Unit Co-Ordinator to go to the pool area. She indicated that she would be there in a few minutes. 29 About 5 minutes later, KK and the other detainee re-commenced their aggressive behaviour. They were chasing the Lachlan detainee around the grassed area, near the pool. Mr. Sexton issued a second warning and again radioed the Unit Co-Ordinator seeking her attendance. 30 KK continued the chase, picked up a branch from a tree and stood over the Lachlan detainee in a threatening manner prompting the Applicant to issue a third warning. Despite the threat to write him up and put him in the holding cell for the afternoon, KK continued standing over the detainee motioning with the branch as if he intended to hit him. The Applicant issued a general call for help resulting in other staff attending the pool and apprehending KK who was returned to the Unit and locked up in the holding room. As he walked the other detainee back to the Unit, he noticed the Co-Ordinator walking towards the pool area, approximately 15 minutes after he had first radioed her. 31 Once back at the Murray Unit, the Applicant went into the Co-Ordinator's office. He found the relevant books and completed an incident report, minor misbehaviour report and logged the incident in the log book. 32 He stated that when he turned up for work on 26 December, 2004, he was advised by the Unit Co-Ordinator that he had been transferred to the Lachlan Unit because of the incident the previous day. He presumed that she was referring to the incident by the pool. 33 It was not until 10 January, 2005 that he received a call at home from the Acting Centre Manager who advised that the Department had decided to suspend him until appropriate investigations were completed. 34 In a letter dated 01 February, 2005, he was advised of the allegations against him – an assault on KK, without legitimate cause, and an alleged threat to bash him. He was further advised that a Consultant Investigator, Mr Bob Pell, had been appointed to prepare an Investigation Report. 35 As per the Department's procedure, the matter was reported to the Police who interviewed Mr. Sexton in mid January and determined that no further action should be taken regarding the incident. 36 Mr. Sexton was interviewed by Mr. Bob Pell on 14 February, 2005. In a letter dated 08 March, 2005 he was advised by the Director-General that the Investigator had found that: - the allegation that he had threatened KK was unproven; - sufficient evidence was found, on the balance of probabilities, to support the allegation that he had committed excess use of force when he pushed KK; and - he had breached the Department's accepted procedures by his failure to report the use of force accurately. 37 The Director-General informed the Applicant that he accepted those findings and, as a result, was dispensing with his services effective immediately. 38 The Applicant was further informed that, as the allegation of use of excessive force had been proven, and as such action fell within the definition of reportable conduct for the purposes of the Commission for Children and Young People Act 1998 (CCYP Act), the Director-General was obliged to make that notification under s.39 of the CCYP Act. The effect of that was that the Applicant's name was, within 7 days, registered with the CCYP as a Category One notification. Should Mr. Sexton seek child-related employment in the future, with the Department of Juvenile Justice or any other organisation, the nature of the above disciplinary matter will be taken into consideration during the checking process to determine his suitability for such employment. 39 Mr. Sexton provided details of the disastrous effect the outcome has had on his health, family and working life. 40 Tendered in the proceedings were statements from previous supervisors and referees providing excellent reports in relation to the work performance of the Applicant. 41 Also tendered in the proceedings were a number of entries from the Violence Risk Information screen relating to KK. They indicated a history of violence and self-harm. Submissions 42 The submissions of the parties are summarised as follows. The Applicant relied on the basic and well settled principles established in the following authorities: Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No.3) [1990] 35 IR 70 at 74, 83-84 Bringinshaw v Bringinshaw [1938] 60 CLR 336 at 361 Wang v Crestell Industries Pty. Ltd . [1997] 73 IR 454 at 463 Department of Corrective Services and the Public Service Association Amalgamated Union of NSW concerning a threatened dismissal [1998] NSWIRComm 542 (2 Oct, 1998) per Peterson J that the burden of proof lay with the Respondent to establish, to a reasonable satisfaction, based on non-inexact proof or indirect testimony, that the Applicant acted with the use of excessive force in the circumstances in relation to KK. 43 It was submitted that, in determining whether the Department of Juvenile Justice had discharged its burden in that regard, the Commission will have regard to the: - good record of the Applicant; and - circumstances immediately preceding the physical contact between the Applicant and detainee KK. 44 It was pointed out that the evidence concerning the good record of the Applicant was uncontradicted. 45 So too was the evidence relating to the circumstances leading up to the alleged physical assault. KK had approached Mr. Sexton in an aggressive manner making verbal threats to his physical safety. The Applicant had acted in urgent self-defence to resist the imminent and reasonably apprehended physical threat posed by KK. 46 The CCTV footage was dismissed as being of limited value for a number of reasons. Firstly, it lacked sound and therefore the allegations made by Mr. Sexton as to threats made by KK have not been rebutted; secondly, the footage does not show the head sections of either Mr. Sexton or KK and therefore any exchange between them and cannot be confirmed or refuted; and, thirdly, it does not record the real time movement of the parties thereby giving a more sudden and dramatic appearance to the movements than would have been the case in reality. 47 Nevertheless, the footage did serve to collaborate the Applicant's evidence that KK had approached him and made a threat close to his ear using a rolled up piece of paper following which he had retreated and then returned and approached him a second time. 48 It was pointed out that even if the Commission were to determine that the Applicant used somewhat more force than was necessary in the circumstances, the matter would not end there. The Commission would be required to make a determination that such excessive use of force warranted summary dismissal. 49 It was submitted that the termination was unreasonable and unjust for the following reasons. Firstly, there was no excessive use of force; Secondly, no accommodation had been made for Mr. Sexton acting in self-defence in accordance with the Department's Guidelines. The Commissioner's attention was drawn to Reg. 50, Use of Force, of the Children (Detention Centres) Regulation 2005 which sets out a series of exceptions to the bar to the use of force against detainees in Juvenile Detention Centres. One such exception, in Reg. 50 (1)(b), is for the purpose of protecting the officer or other persons from attack or harm. 50 It was pointed out that when the Commission has regard to the Investigation Report in an analogous situation involving Youth Officer Haldane, the level of discretion that Juvenile Justice Officers must have in dealing with detainees and within the Guidelines would become obvious. Mr Haldane was found to have committed use of force but no action had been taken against him. The unequal treatment of the two officers would give rise to a justifiable sense of grievance on the part of Mr. Sexton and would highlight the unfairness in the treatment. 51 It was further submitted that the termination was harsh for the following reasons. Firstly, the evidence before the Commission that the Applicant was provoked by KK in serious circumstances had not been refuted; Secondly, the Applicant gave evidence that he had received minimal training. The training on the use of force was of two days' duration with one day only being utilised for practical training; Thirdly, the Applicant's employment record with the Department was exemplary as evidenced by the statements tendered by his previous unit co-ordinators. The contents of those statement had not been contradicted in any way; Fourthly, the Applicant's future prospects of employment have been severely restricted by the Category 1 report to the Commission of Children and Young people; and fifthly, regard should have been had to the prior record of KK. The evidence before the Commission demonstrated that KK had perpetrated serious physical violence upon other detainees, other staff and upon himself. 52 Mr Chin took the Commission through that evidence in support of the contention that it was understandable that Mr. Sexton would have reasonable apprehension in the circumstances. The Applicant had read KK's record, was aware of his violent nature and prior attempts at self-harm and had received four separate threats of violence when he re-acted to the situation. Despite that knowledge, he had acted in accordance with the Department's guidelines. He had initially prolonged the verbal interaction with KK and when that failed, had used force as a last resort. 53 It was submitted that in order to find that the Applicant used excessive force, the Commission must be reasonably satisfied that Mr. Sexton did not act reasonably in self-defence. In order to arrive at that finding, the Commission would have to find that Mr. Sexton was not subject to an imminent physical threat. The onus, it was submitted, was on the Respondent to reasonably satisfy the Commission in relation to that contention. It was pointed out that the Respondent had not called any evidence to positively rebut the evidence of Mr. Sexton as to the imminent physical threat posed to him by KK. It was therefore impossible for the Commission to find that the burden has been discharged by the Respondent in rebutting the proposition that Mr. Sexton was the subject of an imminent physical threat by KK. 54 The Commission was invited to draw an adverse inference, on the basis of the principles established in Jones v Dunkell ((1959) 101 CLR 298) against the Respondent for its failure to call evidence, particularly from KK, to contradict the Applicant. 55 It was not at issue that there was no injury sustained by KK. He merely stumbled. 56 It was considered that in one of the questions asked during the Investigation Interview, that Mr. Pell had conceded that some contact was proper: "Q. 232: Do you agree that for you to have held him at arms length and called Mick McGavin out of the UC's room, that would have been a better alternative than to push and continue to push KK away?" 57 The authorities from this Commission clearly establish a distinction between perpetrating some form of physical force upon others in the workplace in circumstances out of the ordinary course of duties on the one hand and in self-defence on the other. It was submitted that the situation in question, on the evidence, was very clearly one in which the latter prevailed as Mr. Sexton was acting in self-defence. 58 The legislation governing the use of force against juvenile detainees recognises that an inevitable consequence of the very difficult job of the Juvenile Justice Officers is that, on occasion, inevitably, they will have to engage in the use of force and if they do so in self-defence, their actions will be tolerated. 59 It cannot be denied, considering the nature of KK, that Mr. Sexton was in a very difficult position on the day. 60 It was concluded that the Commission can only find that Mr. Sexton had acted in self-defence on that day. 61 Mr Chin took the Commission to the relevant authorities in that regard: Woods v Hunter Area Health Service [1999] NSWIRComm 102 (19 March, 1999) per Harrison DP HREA on behalf of Robert John Drinan v Hunter Area Health Service [2002] NSWIRComm 270 NSW Nurses Association on behalf of Gary Jefferey v Department of Community Services (Unreported, IRC NSW, McLeay, C, 553 of 2000, 14 July, 2000) Luke v Handicapped Children's Centre (Unreported, IRC NSW, Connor, CC, 2586 of 1993, 16 March, 1994) 62 It was concluded that for all of the above reasons, Mr. Sexton should be reinstated with remuneration ordered that he would have received but for the dismissal. 63 In addition, a determination was being sought, pursuant to Section 175 of the Act that the actions of Mr. Sexton did not constitute reportable conduct pursuant to s. 39 and s.33 (1) of the Commission of Children and Young People Act 1998. 64 If the Commission was not minded to grant the primary remedy being sought, then the Applicant would seek a determination pursuant to s.175 of the Act that the Department of Juvenile Justice's notifications to the CCYP ought not to have been a notification of a category 1 reportable conduct and that it ought to have been, at most, a notification of a category 2 classification in accordance with the applicable Working with Children Check Guidelines. 65 Consequent to that, a direction be issued by the Commission that the Department of Juvenile Justice make a submission to the CCYP to alter the notification from Category 1 to Category 2 in accordance with the Commissioner's determination under s. 175. 66 It was submitted on behalf of the Respondent that it took objection to a comparison being made with Haldane as each case ought to stand alone and be decided on its own merits. The same argument would apply to the authorities cited on behalf of the Applicant. 67 Ms Anderson noted the requirement in the Corrective Services Case for a "positive" finding to be made that the misconduct occurred and respectfully pointed out that the word "affirmative" may have more appropriately reflected the intention espoused by the Commission in that decision. 68 It was further noted that none of the authorities relied on by the Applicant gave consideration to the Child Protection Legislation and to that extent were of very limited assistance except perhaps for the decision in Drinan which, in turn, referred to a decision by the Government and Related Employees Appeal Tribunal in Samad v Public Service Board (Appeal No. 1395 of 1982; 05/11/1982). That matter went to the Court of Appeal which upheld GREAT that a psychiatrist who kicked a patient should be dismissed. It was held by GREAT that there was no excuse in circumstances of psychiatric hospitals for a patient to be punished for behaviour that was a product of their psychiatric illness. 69 It was submitted that the same principle would apply to Jails and Detention Centres. It was not for employees to decide to punish a prisoner or a detainee over and above what the system has meted out to them, eg. confinement in a holding room or writing them up, as are provided in detention centres. 70 It was pointed out that Mr. Sexton should have nipped it in the bud as soon as he received the first threat. During cross-examination, he agreed that he should have taken some option other than continue sitting on the table. 71 It was noted that Mr. Sexton had made allowances for KK's behaviour – it was Christmas Day and he had not had any visitors. Nevertheless, the Respondent believed that a threat such as that made by KK should not have been tolerated under any circumstances. Yet he tolerated it on a second occasion and Mr. Sexton only took action when KK came back a third time. 72 It was not suggested by the Respondent that Mr. Sexton intended to inflict any harm on KK. There was an intention, however, to demonstrate to KK, by an inappropriate means (that is, by the use of physical force) just who was in control. 73 It was not in issue that Mr. Sexton pushed KK. The question, however, remained: Was that an assault? Ms. Anderson rejected any attempt to label the assault as "technical" or otherwise. 74 The Respondent did not dispute that detainees in juvenile detention centres were the most troubled, difficult young people in the system. It was accepted that no-one could get into what Mr. Sexton's mind was at the time in question. He said he had been anxious and stressed. Nevertheless, the question as to whether an action constituted self-defence should not be viewed subjectively by the person perpetrating it. The question as to whether a person could have been in such a state of fear as to occasion the use of physical force should be assessed objectively by the Commission otherwise "rafferty's rules" would apply at detention centres. 75 Viewed objectively, the Commission may find that it was an unreasonable belief by Mr. Sexton that a boy with no object in his hand other than a cone of paper could have put him in a state of fear for his safety. 76 Irrespective of the criticisms made of the CCTV footage, it was submitted that it cannot be disputed that Mr. Sexton pushed KK. 77 In relation to the alleged concession by Mr. Pell during the Investigation Interview with Mr. Sexton, Ms. Anderson submitted that any views expressed by Investigators were immaterial. He was entitled to his opinion as an individual – but that was all it was. The interview transcripts were only tendered for the sake of completeness and merely to ensure that the full picture was before the Commission. 78 In his own evidence to Mr. Pell, Mr. Sexton admitted that he had been stressed and anxious and nearly lost it resulting in his pushing KK more than was necessary. 79 The Respondent emphasised Guideline 1 of the Department's procedure with respect to the use of force: "Force must be avoided until it is the only remaining method available to manage a dangerous or threatening situation". 80 Objectively viewed, there was no dangerous or threatening situation. 81 Pursuant to the Child Protection legislation, even if an action might not be proven according to the balance of probabilities in disciplinary proceedings, so long as the employer does not come to the view that it did not happen or that it was frivolous, vexatious or misconceived, then the employer is obliged to submit a report on the incident. On viewing the CCTV footage, there was no doubt that notification of the incident had to be made to the CCYP. 82 Further "physical assault" is defined in the "Working with Children Check Guidelines" as including the following three elements: - an act committed on or towards a child; and - involves either the application of force to a child or an act that causes a child to think that immediate force will be used on them, and ; - is either hostile or reckless (a reckless act is one where the person foresees the likelihood of inflicting injury or fear and ignores the risk). 83 It was submitted that, objectively viewed, Mr. Sexton's action was both hostile and reckless although it was conceded that there was no malice involved or intended. However, it was intended, and did achieve, a measure of fear in KK, as instead of acting offensively, he had yielded and gone backwards. In the circumstances, therefore, the report to the Ombudsman and the NSW CCYP was appropriate as was the decision to terminate Mr. Sexton's employment. 84 It was noted that, like Samad, Mr. Sexton's was a hard case in view of his unblemished record. However, the legislature and the Community dictates had to be met. They fully expected the Department to implement the legislation and not to tolerate any behaviour that constituted child abuse even if it were to be an assault at the bottom end of the range. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.