Nicole Kathleen Young and others v Department of Juvenile Justice [2006] NSWIRComm 337

Industrial Relations Commission of New South Wales

CITATION: Nicole Kathleen Young and others v Department of Juvenile Justice [2006] NSWIRComm 337

APPLICANTS Nicole Kathleen Young Justin Matthew Tom PARTIES: Marie Kuban Nathan Hoevers

RESPONDENT Department of Juvenile Justice

FILE NUMBER(S): 2833; 2834; 4102; 4103 of 2005

CORAM: Sams DP

Termination of employment - unfair dismissals - allegations of serious misconduct - four juvenile justice officers - allegations that officers incited assault of two detainees by another - allegations of inappropriate room search - allegations of actual assault - failure to report serious incident - failure to report minor misbehaviour - failure to report threats of violence and abusive comments towards staff - independent investigation - review of investigator's findings - findings of serious misconduct - reportable conduct to Commission for Children and Young People, NSW Ombudsman and Police - no police action taken - Ombudsman satisfied with respondent's investigation and actions - Commission's inspection of Centre - orders suppressing identities of detainees - conflicting evidence - inconsistencies with evidence - difficulty in reconciling evidence - matters not known to investigator - evidence of detainees unreliable - detainees uncooperative in witness box - directions to answer questions - refusal to give evidence - eye injury to detainee - expert evidence as to nature of eye injury. CATCHWORDS: Held; significant evidence unknown to investigator revealed during proceedings - no doubt of eye injury to detainee - failure to interview nurse - expert evidence inconclusive - unable to determine whether eye injury as a result of a second blow and if so, by whom - applicants' failure to record incident and behaviour of detainees acknowledged - discretion to record incidents - threats of violence should have been recorded - implausability of alleged assault - balance of probabilities favours applicants' version of events - character references - onus on respondent to prove allegations not satisfied - dismissals held to be harsh, unreasonable and unjust - primacy of reinstatement - unblemished records of employees - failure to report and record incidents not sufficient to warrant dismissal let alone preclude reinstatement - evidence of respondent as to ability to work with applicants - mere inconvenience not sufficient - orders for reinstatement without loss of continuity - 60% of lost earnings ordered.