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. LEGISLATION CITED: Industrial Relations Act 1996 Ombudsman Act 1974 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Bankstown City Council v Paris (1999) 93 IR 209 Bigg v New South Wales Police Service (1998) 80 IR 434 Blyth Chemicals Limited v Bushnall (1933) 49 CLR 66 Briginshaw v Briginshaw (1938) 60 CLR 336 Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 Byrne & Anor v Australian Airlines (1995) 61 IR 32 Ferns v Department of Corrective Services [2005] NSWIRComm 9 Four Sons Pty Limited v Sakchai Limsiripothong (2000) 98 IR 1 Humphries v Cootamundra Ex-Services and Citizens Memorial Club (2003) 128 IR 37 Franklins Ltd v Webb (1997) 72 IR 257 CASES CITED: Gooley v Westpac Banking Corporation (1995) 59 IR 262 Hill and Department of Juvenile Justice [2000] NSWIRComm 128 Najdov and Macedonian Australian Welfare Association of Sydney Inc [2004] NSWIRComm 101 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Outboard World v Muir (1993) 51 IR 167 Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers' Union (NSW) v Gartrell White (No3) (1990) 35 IR 70 Perfection Dairies Pty Ltd v Finn (2006) 151 IR 197 Perks and Petroski v New South Wales Department of Juvenile Justice [2005] NSWIRComm 458 Price v Box Valley Pty Ltd (1999) 90 IR 480 Shop, Distributive and Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 The King v The War Pensions Entitlement Appeal Tribunal and Another (1933) 50 CLR 228 Wang and Others v Crestell Industries Pty Ltd (1997) 73 IR 454 HEARING DATES: 4/07/2006; 5/07/2006; 6/07/2006; 7/07/2006; 10/07/2006; 3/08/2006; 4/08/2006; 8/08/2006; 21/08/2006 DATE OF JUDGMENT: 11/20/2006 APPLICANT Mr Booth (Agent) Employment Advocacy Solutions LEGAL REPRESENTATIVES: RESPONDENT Ms T Anderson of Counsel SOLICITOR Mr P Houston Public Employment Office JUDGMENT: - 76 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS, DP 20 November 2006 Matter IRC05/2833 Nicole Kathleen Young and New South Wales Department of Juvenile Justice Application by Nicole Kathleen Young re unfair dismissal pursuant to s84 of the Industrial Relations Act 1996 Matter IRC05/2834 Justin Mathew Tom and New South Wales Department of Juvenile Justice Application by Justin Mathew Tom re unfair dismissal pursuant to s84 of the Industrial Relations Act 1996 Matter IRC05/4102 Marie Kuban and New South Wales Department of Juvenile Justice Application by Marie Kuban re unfair dismissal pursuant to s84 of the Industrial Relations Act 1996 Matter IRC05/4103 Nathan Hoevers and New South Wales Department of Juvenile Justice Application by Nathan Hoevers re unfair dismissal pursuant to s84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 337 1 Four employees of the New South Wales Department of Juvenile Justice ('the respondent') - Youth Officer Nicole Young, Youth Officer Justin Tom, Unit Coordinator Marie Kuban and Youth Officer Nathan Hoevers ('the applicants') - were dismissed from their employment in May and November 2005 on the grounds of serious misconduct. 2 The allegations against the four applicants arose from an incident in the Garvey Unit of the Cobham Juvenile Justice Centre ('the Centre') on the evening of 28 March 2005. (I shall hereinafter refer to this date being 28 March or the 28 March incident.) The essential issue in vigorous contest between the parties was what actually happened on the night in question. I shall come back to this issue in greater detail shortly. 3 Applications for relief of unfair dismissal, pursuant to Pt 6 Ch 2 of the Industrial Relations Act 1996 ('the Act') were filed by all four applicants; Ms Young and Mr Tom's applications were filed by their Union, the Public Service and Professional Officers' Association Amalgamated Union of New South Wales ('the Union') on 1 June 2005 - although the Union later filed a notice of ceasing to act; Ms Kuban and Mr Hoevers (who were permanent public servants) in respect to threatened dismissal applications were filed on 9 August 2005. All four applicants were later represented by Mr M Booth (Agent). Ms T Anderson of Counsel represented the respondent. 4 Conciliation proceedings involving the four applicants were listed before the Commission on 23 June 2005, although Ms Kuban and Mr Hoevers were not dismissed until 11 November 2005 and by that time had not filed threatened unfair dismissal claims. Conciliation proved unsuccessful and, at the request of the parties, the matters were listed for an inspection of the Centre on 16 August 2005 with the hearing to commence on 26 September 2005. 5 In setting the matter for hearing, I made the following suppression orders by consent: (1) The detainees referred to in the proceedings shall be by way of their initials. (2) That any document that includes the name of the detainee that is tendered in evidence should be on a confidential basis; and (3) The Commission makes an order prohibiting the name, address, picture or any other material that identifies or may lead to the identification of any detainee, or the doing of any other things that identifies or may lead to the identification of any detainee. 6 As will be evident, the inspection and substantive hearing of the matters were not listed until the first and second week of July 2006. It is necessary to explain the reasons for this regrettable, but necessary delay. 7 Ms Kuban and Mr Hoevers were not dismissed until 11 November 2005. Their dismissals followed a Departmental investigation by Mr Bob Pell into the incident on 28 March. Mr Pell had also investigated and made recommendations concerning Ms Young and Mr Toms' dismissals in May 2005. 8 At the earlier conciliation proceedings the parties agreed that all four applications should be dealt with together as it would be inappropriate and impractical to hear and determine all four matters when the dismissed employees were alleged to be involved in the same incident. Unnecessary costs and duplication were relevant considerations. The Commission agreed to this course and formally joined the four matters for hearing and determination. 9 Consequently, the Commission's directions and hearing dates were amended and rescheduled on 16 February 2006 for hearing in July 2006. 10 All of the applicants seek orders from the Commission seeking reinstatement to their former positions at the Centre, with no loss of continuity and the payment of lost remuneration, pursuant to the provisions of s 89 of the Act. The Allegations 11 While the allegations against all four applicants all stem from the same incident on 28 March, the allegations against each of them relate to their different alleged roles in the incident. 12 Ms Young was alleged to have engaged in misconduct: 1. That on 28 March 2005 at Cobham JJC you engaged in misconduct when you had knowledge of an inappropriate room search and failed to report same, namely the dirtying of the room of detainees 'GB' and 'JH', by Unit Coordinator Marie Kuban and Youth Officers Nathan Hoevers and Justin Tom. 2. That on 28 March 2005 at Cobham JJC you engaged in misconduct when you incited an assault on detainees 'GB' and 'JH' by allowing detainee 'JD' to enter their room and assault them. 13 Mr Tom was alleged to have engaged in misconduct: 1. That on 28 March 2005 at Cobham JJC you engaged in misconduct when you conducted an inappropriate room search, namely the room occupied by detainees 'JH' and 'GB'. 2. That on 28 March 2005 at Cobham JJC you engaged in misconduct when you incited an assault on detainees 'GB' and 'JH' by allowing detainee 'JD' to enter their room and assault them. 14 Mr Hoevers was alleged to have engaged in misconduct: 1. That on 28 March 2005 at Cobham JJC you engaged in misconduct when you conducted an inappropriate room search, namely the room occupied by detainees 'JH' and 'GB'. 2. That on 28 March 2005 at Cobham JJC you engaged in misconduct when you incited an assault on detainees 'GB' and 'JH' by allowing detainee 'JD' to enter their room and assault them. 3. That on 28 March 2005 at Cobham JJC you engaged in misconduct, namely assaulting detainee 'GB' with a broom. (Another allegation that Mr Hoevers had also assaulted 'JH' with a broom was subsequently found by the Investigator not to be proven). 15 Ms Kuban was alleged to have engaged in misconduct: 1. On 28 March 2005 at Cobham Juvenile Justice Centre you conducted an inappropriate room search, namely dirtying the room of detainees 'GB' and 'JH'. 2. On 28 March 2005 at Cobham Juvenile Justice Centre you incited an assault on detainees 'GB' and 'JH' by allowing detainee 'JD' to enter the detainee's room and assault them. 3. You supplied detainees at Cobham Juvenile Justice Centre with contraband, namely tobacco, clothes and chocolate. (Allegation 3 was subsequently found by the Investigator not to be proven). 16 The incident and the respondent's investigation and subsequent actions were reported to the Police, the Commission for Children and Young People and the New South Wales Ombudsman. On 16 June 2005 the Police recommended that no criminal action be taken in respect to the incident, primarily because the two victims of the alleged assault, 'GB' and 'JH' were not prepared to lodge a complaint. On 8 December 2005, the New South Wales Ombudsman's Office reported that it was satisfied with the respondent's handling of the matter and that no further action was required by the respondent to meet the requirements of the Ombudsman Act 1974. THE EVIDENCE 17 During the course of the evidence, Mr Booth tendered and referred to the following documents: § Department of Juvenile Justice Managing Difficult Behaviour Policy § Operational Procedures Manual for Juvenile Justice Centre - Section 7: Incidents § Cobham's Bed Plans from 31 January 2005 - 28 March 2005 § Personnel Handbook 2005 - Chapter 9: Management of Conduct and Performance § Complaints Policy The Pell Investigation 18 Mr Bob Pell, a former police officer of 26 years standing, was engaged by the respondent to conduct an independent investigation into the incident and make findings on what had occurred and recommendations arising from his findings. Mr Pell interviewed the following persons: § Youth Officer Fiona HANRAHAN § Case Officer Vickie-Maree POLLOCK § Juvenile Justice Officer Sharon SUNNER § Youth Officer (Transport) Gary TINDALE § Youth Officer (Transport) Michelle KENT § Juvenile Detainee 'RK' § Juvenile Detainee 'GB' § Juvenile Detainee 'JH' § Detainee 'JD' § Unit Coordinator Marie KUBAN § Youth Officer Nathan HOEVERS (interviewed twice) § Youth Officer Justin TOM (interviewed twice) § Youth Officer Nicole YOUNG 19 The interviews were tape recorded and transcribed and in the case of the Union members were attended by an official from the Public Service Association. 20 At this juncture, it is important to note that Mr Pell did not view the Garvey Unit, but had relied on a hand drawn sketch of the layout which incorrectly showed Room 8 and Room 11 almost opposite each other. 21 All of the applicants attached the transcript of their interviews with Mr Pell to their affidavits. They each deposed that the answers they gave to Mr Pell were true and honestly given. 22 Throughout the evidence, the Commission was referred to various sections of Mr Pell's investigation and reports. It is necessary to refer to Mr Pell's reports in some detail. On page 1-3 Mr Pell provided the following summary of his report: Background 1. On Monday, 28 March, 2005, Juvenile Detainees GB and JH were detained at Garvey Unit, Cobham Juvenile Justice Centre and were expected to be released either 'on bail' or to 'a refuge' after their respective Court appearances on 29 March, 2005. These juveniles were not co-offenders and they were placed together in Cabin 11 on 28 March, 2005. GB is a slightly built youth, he is 16 years of age. JH is also of slight build, he is 14 years of age. 2. Unit Coordinator Marie Kuban, Youth Officers Nathan Hoevers, Justin Tom and Nicole Young were performing duty at Garvey Unit, Cobham Juvenile Justice Centre from 2pm to 10pm on 28 March, 2005. All detainees in Garvey Unit were 'locked down' at 8.30pm that evening. 3. About 8.35pm on 28 March, 2005, a routine cabin search was conducted by Unit Coordinator Marie Kuban assisted by Youth Officers Tom and Hoevers. A policy exists at Garvey Unit where random cabin searches are conducted each night. The decision to search cabin 11 was a joint decision made by staff and Ms. Kuban. An appropriate entry was made in the Search Register on 28 March, 2005, Entry 307362. (ATTACHMENT 4) 4. At the completion of her shift on 28 March, 2005, Unit Coordinator Kuban signed off the 'Unit Coordinator's Log' as "Unit settled, Nil to report". (ATTACHMENT 5) 5. At the completion of his shift, Youth Officer Nathan Hoevers completed the 'Garvey Unit Log Book' with an entry "8.30 – locked down. Room Searches 11A 11B, Nil found, Good Shift" (ATTACHMENT 6). 6. On the morning of 29 March, 2005, Juvenile Detainee JH was escorted from Cobham Juvenile Justice Centre to Bidura Court. That afternoon, when waiting to appear before the Magistrate he entered into conversation with two Transport Officers, Youth Officers Gary Tindale and Michelle Kent. 7. During his conversation with the Transport Officers JH complained that after 'lock down' on 28 March, 2005 youth officers under the supervision of Unit Coordinator Marie Kuban conducted a search of his room. They left this room in complete disarray with clothes scattered on the floor, toothpaste and shampoo squirted onto the floor. JH and GB complained to staff after the room search and they were told to clean up the mess. 8. The juvenile, JH stated that he and GB became agitated, then made a further mess of their room by throwing wet toilet paper against the cabin door. 9. Staff then returned to the cabin, directed them to clean it up and when the boys refused, Unit Coordinator Kuban released a 19 year old detainee, JD and escorted him to JH and GB's cabin. 10. Staff allegedly complained to JD of the mess caused by JH and GB. Then in the presence of Unit Coordinator Kuban, Youth Officers Tom and Hoevers, 'JD' punched GB and JH in the face. JD was then returned to his own cabin and secured. 11. Detainee JH continued by deposing to the Transport Officers that the youth officers then commenced to clean up their cabin and in this process, Youth Officer Hoevers deliberately struck GB with the straw broom. 12. Transport Officers Kent and Tindale reported this complaint to their supervisor on 29 March, 2005 and they subsequently recorded this information in a report (ATTACHMENT 12). 13. Also on 29 March, 2005, Juvenile Detainee GB was being escorted at Cobham Juvenile Justice Centre by Youth Officer Fiona Hanrahan. Ms. Hanrahan questioned him regarding an injury to his eye. GB informed Ms. Hanrahan that he was assaulted by detainee JD the previous night and he related a similar version of events as depicted by JH to the transport officers. 14. Versions of events depicted by JH and GB were related at separate times and at separate venues. At the time GB related his version of events to Ms. Hanrahan, (ATTACHMENT 8) JH was being escorted to Bidura Court. 15. Juvenile Detainee GB was later escorted to Liverpool by his Case Officer, Vicki Pollock, her transcript forms (ATTACHMENT 15). She also questioned him regarding the bruising to his face. He related the same version of events and Ms. Pollock reported this as a complaint to Ms. Sharon Sunner, the Juvenile Justice Counsellor at Liverpool. Ms. Sunner also questioned GB regarding his allegations, her transcript forms (ATTACHMENT 16) and she reported the matter to her superior. 16. Juvenile Detainee RK was overheard talking to other detainees in Garvey Unit on 13 April, 2005 that he witnessed detainee JD being released from his cabin by Unit Coordinator Marie Kuban. He saw JD enter the cabin with JH and GB while being observed by Youth Officers Tom and Hoevers. He also stated that Youth Officer Nicole Young was inside the cabin at the time and she complained that JD was in the same cabin as the two younger boys. 17. RK continued that Youth Officer Young was directed away from the cabin by Kuban and she walked away. RK's transcript of interview forms (ATTACHMENT 19) 18. No records relating to any untoward events regarding Juvenile Detainees JH and GB were recorded by staff on the evening of 28 March, 2005. 19 Mr. Rob Ferguson, Centre Manager, Cobham Juvenile Justice Centre became aware of the separate allegations made by these juveniles. He commenced the 'reporting' process and as a result, Unit Coordinator Marie Kuban and Officers Tom, Young and Hoevers were suspended from duty. 20. On receipt of these allegations of assault, the Centre Manager, Rob Ferguson notified police (ATTACHMENT 10). However, as both juvenile detainees had been released from custody a formal complaint by either victim was not forthcoming to commence any police or criminal investigation. 21. On reporting their versions of events to staff, both GB and JH expressed their fear of reprisals if it was known they complained of staff actions. GB also expressed fears for his safety if the Detainee JD found he had instigated a complaint. GB was interviewed by the Centre Psychologist (ATTACHMENT 11) 22. When interviewed by me at Keelong Juvenile Justice Centre, Ms. Vicki Pearse, Assistant Manager and Mr. Glenn Sullivan, Centre Manager witnessed GB's reluctance to give evidence in relation to these complaints. In conversation with all officers who had dealings with GB and JH during this investigation, I found they all accepted the version of events outlined by these boys and believed GB and JH expressed genuine fears for their safety. 23. Juvenile Detainees GB and JH were released on bail with conditions endorsed by separate Magistrates. Since this investigation commenced, GB and JH have been returned to custody. However, owing to the sensitivity of this matter, Mr. Ferguson, Centre Manager, had both boys detained in other centres. 24. Detainee JD was transferred from Cobham to Baxter Juvenile Justice Centre at the instigation of Mr. Ferguson. 25. The four officers performing duty on afternoon shift at Garvey Unit on 28 March, 2005 have been advised in writing that an independent investigator would be appointed to inquire into this matter. 23 At page 9 - 14 Mr Pell made the following comment and recommendations: Comment 58. Juvenile Detainee GB and JH were discharged from Cobham Juvenile Justice Centre on 29 March, 2005. GB was conveyed to a refuge at Liverpool that morning and prior to leaving Cobham he advised Youth Officer Fiona Hanrahan how he came to receive his black eye. He later discussed these issues with his Case Officer, Vicki Pollock and Juvenile Justice Officer Sharon Sunner. 59. On each occasion GB discussed his injury and the series of events which he alleged occurred on the evening of 28 March, 2005, he stipulated that he did not wish to make this a formal complaint as he was frightened for his well being. GB was aware that he would be re-entering the system through Cobham Juvenile Justice Centre at another time and he was frightened of any repercussions. 60. At interview with GB I arrived at the conclusion he was frightened of repercussions arising from this complaint. He was extremely reluctant to be interviewed. 61. Unbeknown to Detainee GB, Detainee JH mentioned all aspects of this incident in conversation to two Transport Officers, Michelle Kent and Gary Tindale, whilst in custody at Bidura Children's Court on 29 March, 2005. 62. At interview with JH when he was in transit from Bidura Children's Court to Reiby Detention Centre I came to the same conclusion that he was frightened of any repercussions which may arise from any complaint about the actions of the four youth officers and the older detainee JD. At interview he specifically questioned whether any of his deposition would be supplied to staff or JD as he was concerned for himself and members of his family. 63. The allegations made by GB and JH were unsolicited and I accept they were made separately without the knowledge of each detainee. There is no inference that these juveniles conspired to falsify a version of events to create this complaint. I believe that JH is too naive and young to attempt that type of conspiracy and GB was obviously very scared of repercussions arising from his complaint. 64. Detainee RK gave an independent account of this incident some 2½ weeks after the event. I believe he adequately corroborated the evidence of GB and JH which ensures his credibility. 65. I accept the evidence of the Juvenile Detainees GB, JH and RK and reject the version of events as outlined by Unit Coordinator Marie Kuban, Youth Officers Nathan Hoevers, Justin Tom and Nicole Young and the Detainee JD. 66. I reject the comments entered into the Unit Coordinator's Log and the Garvey Unit Log that their shift between 2pm and 10pm on 28 March, 2005 was 'without incident'. (ATTACHMENTS 5 & 6) 67. I found no evidence to support the assumption that youth officers in Garvey Unit were supplying detainees with contraband. 68. I found no evidence to support the allegation that Youth Officer Nathan Hoevers assaulted juvenile detainee JH by hitting him with a broom on 28 March, 2005. Finding - Allegation 1 - Room Search 69. a) My investigation found Unit Coordinator Marie Kuban engaged in misconduct on 28 March, 2005 at Cobham Juvenile Justice Centre when she conducted / supervised an inappropriate room search. b) My investigation found that Youth Officer Nathan Hoevers engaged in misconduct on 28 March, 2005 at Cobham Juvenile Justice Centre when he conducted an inappropriate room search. c) My investigation found that Youth Officer Justin Tom engaged in misconduct on 28 March, 2005 at Cobham Juvenile Justice Centre when he conducted an inappropriate room search. d) My investigation found that Youth Officer Nicole Young engaged in misconduct on 28 March, 2005 at Cobham Juvenile Justice Centre when she had knowledge of an inappropriate room search. Finding – Allegation 2 – Assault by JD 70. a) My investigation found Unit Coordinator Marie Kuban engaged in misconduct on 28 March, 2005 at Cobham Juvenile Justice Centre when she incited an assault on detainees GB and JH by allowing detainee JD to enter their room and assault them. b) My investigation found Youth Officer Nathan Hoevers engaged in misconduct on 28 March, 2005 at Cobham Juvenile Justice Centre when he incited an assault on detainees GB and JH by allowing detainee JD to enter their room and assault them. c) My investigation found Youth Officer Justin Tom engaged in misconduct on 28 March, 2005 at Cobham Juvenile Justice Centre when he incited an assault on detainees GB and JH by allowing detainee JD to enter their room and assault them. d) My investigation found Youth Officer Nicole Young engaged in misconduct on 28 March, 2005 at Cobham Juvenile Justice Centre when she incited an assault on detainees GB and JH by allowing detainee JD to enter their room and assault them. Finding – Allegation 3 – Supply of Contraband 71. My investigation found no evidence Unit Coordinator Marie Kuban or Youth Officer Nathan Hoevers supplied contraband to any detainees. Finding – Allegation 4 – Assault with Broom 72. a) My investigation found Youth Officer Nathan Hoevers engaged in misconduct on 28 March, 2005 when he assaulted Juvenile Detainee GB with a broom. b) My investigation found no evidence Youth Officer Nathan Hoevers engaged in misconduct on 28 March, 2005 when he assaulted Juvenile Detainee JH with a broom. Recommendation – Allegation 1 73. I recommend disciplinary action be taken against Unit Coordinator Marie Kuban, Youth Officers Nathan Hoevers and Justin Tom for conducting an inappropriate room search, namely dirtying the room of Detainees GB and JH on 28 March, 2005. 74. I recommend disciplinary action be taken against Youth Officer Nicole Young as she had knowledge of an inappropriate room search, namely the dirtying of the room of Detainees GB and JH, by Youth Officers Nathan Hoevers and Justin Tom on 28 March, 2005. Recommendation – Allegation 2 75. I recommend disciplinary action be taken against Unit Coordinator Marie Kuban, Youth Officers Nathan Hoevers and Justin Tom for inciting an assault on Juvenile Detainees GB and JH by allowing the Detainee JD to enter their room and assault them. 76. I recommend disciplinary action be taken against Youth Officer Nicole Young for failing to prevent an assault on Juvenile Detainees GB and JH when the Detainee JD was allowed to enter their room and assault them. Recommendation – Allegation 3 77. As there is no evidence to support this allegation, I recommend no action be taken against Unit Coordinator Marie Kuban and Youth Officer Nathan Hoevers for supplying contraband to detainees at Cobham Juvenile Justice Centre. Recommendation – Allegation 4 78. I recommend disciplinary action be taken against Youth Officer Nathan Hoevers for assaulting Juvenile Detainee GB with a broom on 28 March, 2005. Matters Arising from Investigation 79. I believe there is sufficient evidence, on the balance of probabilities, to indicate that the four officers mentioned in this complaint condoned the actions of each other. These actions are of gross misconduct and constitute serious criminal offences. However, as the detainee GB has indicated his reluctance to give evidence to support his initial complaints, I believe the evidence of the detainees JH and RK would not support a criminal prosecution. 80. At interview, Youth Officer Nicole Young (ATTACHMENT 28) deposed she was not present at any time an incident of wrongdoing occurred. She stated she was inside her office and had no knowledge of any procedures occurring with the detainees JH and GB. 81. Although there is no proof, on hearing the similar wording of evidence at formal interview, I believe the four officers mentioned in these allegations have rehearsed and conspired to fabricate their versions of events to depict their actions on the night of 28 March, 2005 were within Departmental Guidelines and that they acted properly at all times. 82. I believe the situation in Garvey Unit, Cobham Juvenile Justice Centre to be fraught with opportunities of extortion and bullying by adult detainees. 83. During my investigation of these complaints, it was alleged the adult detainee JD had attempted to extort and bully the juvenile detainee JH in order to obtain benefits from JH. He had threatened JH in order to obtain JH's shoes so JD could exchange those for favours from other detainees. 84. JD openly admitted to me at interview that he often had cigarettes and gave these to other younger detainees, he did not expand whether he obtained favours for these cigarettes and this was not pursued at this interview. On transfer to Baxter Juvenile Justice Centre JD was searched and found to have a cigarette lighter hidden on his person. 85. It was obvious that JD, and YA, both 19 year old adults were a lot taller and of heavier build than GB, JH and RK, 14 and 16 year old juveniles of very small stature and height. 86. All persons are detained in the same unit, all detainees have committed serious criminal offences and it is likely that they will continue with their criminal behaviour inside the detention centre. 87. I recommend a review of the situation to prevent extortion and bullying behaviour by the more mature adult detainees and to segregate the adult detainees from the juveniles. Reportable Conduct 88. a) I believe the actions of Unit Coordinator Marie Kuban, in inciting or allowing detainee JD to assault the detainee GB, on 28 March, 2005 falls within the category of 'Reportable Conduct' within the 'Working with Children Check Guidelines'. b) I believe the actions of Unit Coordinator Marie Kuban, in inciting or allowing detainee JD to assault the detainee JH, on 28 March, 2005 falls within the category of 'Reportable Conduct' within the 'Working with Children Check Guidelines' 89. a) I believe the actions of Youth Officer Nathan Hoevers, in allowing detainee JD to assault the detainee GB, on 28 March, 2005 falls within the category of 'Reportable Conduct' within the 'Working with Children Check Guidelines'. b) I believe the actions of Youth Officer Nathan Hoevers, in allowing detainee JD to assault the detainee JH, on 28 March, 2005 falls within the category of 'Reportable Conduct' within the 'Working with Children Check Guidelines' 90. a) I believe the actions of Youth Officer Justin Tom, in allowing detainee JD to assault the detainee GB, on 28 March, 2005 falls within the category of 'Reportable Conduct' within the 'Working with Children Check Guidelines'. b) I believe the actions of Youth Officer Justin Tom, in allowing detainee JD to assault the detainee JH, on 28 March, 2005 falls within the category of 'Reportable Conduct' within the 'Working with Children Check Guidelines' 91. a) I believe the actions of Youth Officer Nicole Young, in allowing detainee JD to assault the detainee GB, on 28 March, 2005 falls within the category of 'Reportable Conduct' within the 'Working with Children Check Guidelines'. b) I believe the actions of Youth Officer Nicole Young, in allowing detainee JD to assault the detainee JH, on 28 March, 2005 falls within the category of 'Reportable Conduct' within the 'Working with Children Check Guidelines' 92. a) I believe the actions of Youth Officer Nathan Hoevers, in assaulting the juvenile detainee GB with a broom on 28 March, 2005, falls within the category of 'Reportable Conduct' within the 'Working with Children Check Guidelines'. 93. I believe there is insufficient proof to pursue 'Criminal' charges of assault. However, I believe the actions of JH and Youth Officer Nathan Hoevers would fall within the guidelines of 'Physical Assault' using Common Law principles. 94. The assault or force was actual, JD deliberately punched GB and JH causing injury and Youth Officer Nathan Hoevers deliberately struck GB with a broom. The juveniles were injured, frightened and physically distressed after this incident. 95. This force obviously gave the detainees GB and JH the impression force was being used upon him. 96. The force used by Detainee JD was a hostile act perpetrated by Unit Coordinator Marie Kuban, with the knowledge of Youth Officers Nathan Hoevers, Justin Tom and Nicole Young. 97. Similarly, the force used by Youth Officer Nathan Hoevers by striking detainee GB with the broom was a hostile act. 98. I recommend these matters be reported to the Commission for Children and Young People. A list of the attachments to Mr Pell's report is annexed to this decision as Annexure A. 24 It is helpful from the outset of the discussion of the evidence to replicate a diagram of the relevant section of the Garvey Unit and to briefly outline where the involved detainees were during the evening of the incident. 25 The detainees who were allegedly assaulted, 'GB' and 'JH', were in Room 11. Detainee 'RK' who said he saw and heard what occurred was locked in Room 8. The detainee 'JD', who was 19 years old, and was alleged to have assaulted 'GB' and 'JH' was said to have been in Room 6 with another detainee 'YA'. Each door to the rooms has a perspex window about 150mm x 350mm at around adult eye level. 'GB' had been at the Centre for around two months and 'JH' a little less. Applicants' Version of Events of the Night of 28 March 2005 26 In his interview with Mr Pell, Mr Mathew Tom said that shortly after lockdown around 8.30pm he, Ms Kuban and Mr Hoevers conducted a standard random room search of Room 11 where 'GB' and 'JH' were. Mr Tom said that 'GB' was a difficult detainee. He was a troubled young man who needed appropriate role-modelling. He had a total disregard for authority and would ignore staff instructions. His behaviour would sometimes require force to be used. He was notorious for having contraband, such as cigarettes and lighters. The room search involved checking the beds, linen, clothes and toiletries. Ms Kuban stood at the door while he and Mr Hoevers conducted the search. 27 Mr Tom said the boys were upset with the room search and claimed that he and Mr Hoevers had "trashed" their room. About half an hour later, Mr Tom said that he heard a noise coming from Room 11 and he went to investigate. He noticed the door window was covered in wet, soggy toilet paper and he couldn't see into the room. He went back to the office and returned to the room with Ms Kuban and Mr Hoevers. When the room was opened they observed that the room had been totally trashed - toothpaste was everywhere, soggy toilet paper was in the sink and on the walls and floor, and deodorant bottles had been smashed. 28 Ms Kuban had then asked Mr Tom and Mr Hoevers to get cleaning equipment - brooms, paper towels, bins and spray. The boys were instructed to clean up the mess. However, they replied "Go and get fucked" and said that as the officers had trashed their room, they should be the ones to clean it up. They had also blamed each other for the mess. As the boys refused to clean up the mess and it was close to the end of shift, Mr Hoevers and Mr Tom started cleaning up. Mr Tom said that 'GB' started laughing and said "look at these bitches cleaning up our room". 29 Mr Tom agreed that he did not write up anything to do with the incident and thought Mr Hoevers had, or would do so. He believed the boys had trashed their room because they would be leaving the next day after court. In these circumstances, there would be no point writing up the incident. 30 Mr Tom gave evidence that 'GB' had continuously threatened Mr Hoevers - almost everyday. This included threats to have someone "get him" on the outside. Mr Tom's approach was to try to work with the boys, rather than write them up all the time, as this only tended to make them more resentful. 31 Mr Tom told Mr Pell that he had not seen 'GB' being hit with a broom and said it was nonsense to allege that 'JD' had been let out of his room and put into Room 11 to assault 'GB' and 'JH'. Mr Tom had not noticed any bruising on 'GB' that night. 32 Mr Tom and his Union official, Mr Latu Sailosi had no complaints with the interview with Mr Pell and had agreed to keep it confidential. 33 In a second interview with Mr Pell, Mr Tom repeated his earlier answers and added that it was nonsense to suggest that Ms Kuban had let 'JD' out of his room, that he and Mr Hoevers were in Room 11 and watched him assault 'GB' and 'JH'. Mr Tom could not recall seeing Ms Young in the room. He had believed she was in the office. Mr Tom again denied seeing Mr Hoevers or Ms Kuban hitting the boys with a broom and had never done so himself. He said that all the boys had been locked down that night, including 'JD' and 'YA'. Mr Tom said Ms Kuban had never used the expression "look at these chats" (dirty person) or that after 'GB' and 'JH' had been hit, she had said "they deserve it". 34 In a reply affidavit, Mr Tom attached a room plan of the Garvey Unit and said that it would have been impossible for someone in locked Room 8 to look into Room 11, particularly as the door of Room 11 was ajar and it was night time. He also doubted that anyone in Room 8 could see someone traversing the corridor from Room 6 to 11. 35 Mr Tom described the difference in lighting between the inspection by the Commission during the day and the night of 28 March. He said it was extremely dark at night as the hall lights are turned off after lockdown. However, some boys have lights on in their rooms by request. He added that it would have been "fairly noisy" at night with the television on in the lounge room and televisions and radios on in the boys' rooms. In cross examination Mr Tom agreed that with the television on and the office light on that there was a degree of illumination in the hall. However, he maintained it was still "pitch black", but sufficiently light to see a figure. 36 In cross examination, Mr Tom gave further details of his version of events on the night of 28 March. Mr Tom said that when he first saw the wet toilet paper on the window, he could see the light inside was on, but could not see in. He agreed that when the door was opened it was "pretty bright" directly outside the room. Mr Tom explained that he was shocked to see the trashed room when he returned with the others, and Ms Kuban had opened the door. This type of incident had not happened to him on the Unit before. He had smiled to himself and shook his head in disbelief that someone would trash their own room. 37 Mr Tom claimed that Ms Kuban had said "what have you done?". She then asked him and Mr Hoevers to get the cleaning equipment from the walk-in cupboard. This had taken about a minute or two, as it wasn't far away. He also went to get one or two bins (probably one) and gloves from the office. He had not heard anything when gathering these items. He had put the gloves on, as he had expected that he would be doing the cleaning up. He didn't take gloves back for the boys. Mr Tom could not recall if Ms Young had also retrieved cleaning equipment. Ms Kuban had then said to the boys in a "fairly calm" way "you have made the mess, clean it up". Both had replied "you made the mess (meaning the officers) you fuckin clean it". 38 Mr Tom agreed that disobeying Ms Kuban was serious. He also agreed that it was very important to maintain discipline at the Centre. However, he regarded the room trashing as "pretty harmless" considering what else he had seen at the Centre. 39 Mr Tom said that as it was getting late they had decided to get the cleaning over and done with as the boys had refused to do so. They commenced to do it and put the rubbish in the bins at the door. After cleaning the room, Mr Tom and Mr Hoevers took some clothing outside to the laundry and other clothing was put back on the shelves. The linen was left on the beds which were not made up. 40 Mr Tom said that his only reaction was to shake his head when the boys said "look at these bitches cleaning up our room". This was a "run of the mill" type of comment which you couldn't react to on every occasion or you wouldn't survive at the Centre. Mr Tom agreed that if this behaviour had occurred on any other day action would have been taken. However, the officers knew the boys were getting out the next day to go to rehab, so a write up for a minor misbehaviour was pointless. Indeed, he was happy to see them go. When pressed, Mr Tom accepted that he could not be one hundred per cent sure the boys were going the next day or that they would not return. 41 Mr Tom was shown an entry in the logbook for the following morning which read "Morning staff, please make sure residents in room 11A/11B clean their room as they both think their (sic) getting out and are going to leave the room a mess". Mr Tom believed that Mr Hoevers had written the note. 42 Mr Tom was questioned about 'JH's' interview with Mr Pell. He said that it was completely false that he and Mr Hoevers had trashed their room or that 'JD' had run over and punched them both in the arms. He stressed that all the boys had been locked down. He rejected 'JH's' claims that Ms Kuban was not there during the room search and that she had laughed when she saw the mess. He denied that Ms Kuban had said "I'll get someone to make you clean it up". When asked about Ms Young's involvement, Mr Tom said he couldn't recall Ms Young being there during the clean up. He denied that Ms Young had said that "this is wrong" or that she had tried to stop the assault. 43 Mr Tom claimed that he had not seen Mr Hoevers remove pens from the room during the search. He said that pens were not contraband and there was no need to write them up if they were found. He agreed, however, that a pen could be used as a weapon. 44 Mr Tom said it was completely false that Mr Hoevers had hit 'GB' with a broom and a chair after 'GB' threw toilet paper at him. Mr Tom believed that the reason why the boys had trashed their room was because they were upset by the room search and were getting out the next day. Mr Tom said that had the boys not been getting out the next day, he would have written them up. When pressed, Mr Tom agreed that the boys' behaviour that night should have been written up. They had told the night officer, Mr Tevita to keep an eye on them, although by that time the boys had settled down. Mr Tom agreed that the boys could have been separated, but they had not seen the need to do so. 45 Mr Tom agreed that 'GB' had been written up earlier for behaviour which was far less serious than what occurred that night. 'GB' had once had a verbal altercation with another inmate. He had threatened Ms Kuban and Mr Hoevers "all the time". He gave an example of when he required assistance to remove 'GB' to his room. Although he was 16, Mr Tom agreed 'GB' was small for his age. Notwithstanding this, Mr Tom believed that he was on good terms with 'GB'. 46 Mr Tom said that while threats against staff were serious, he did not write up every occasion a threat was made. He agreed that looking back, he should have recorded the threats. However, he added that it would have been a "very long list". When shown the Unit Log Book, Mr Tom agreed 'GB' had been written up on many occasions for matters far less significant than threatening staff. He accepted that there was no record of 'GB' making threats to staff in the Log Book. 47 Mr Tom was asked about what 'RK' said he saw and heard on the night. 'RK' was not in the room directly across from the incident and could not have seen what he alleged, such as sheets, clothes and toiletries being thrown on the floor. 'RK' could not possibly have seen Mr Hoevers in the shower area or him (Mr Tom) searching the bedding. However 'RK' was correct when he said that he and Mr Hoevers were in the room and Ms Kuban was standing outside. It was also possible for 'RK' to see the officers wearing gloves. Mr Tom rejected 'RK's' statement that Ms Young had said "that's wrong" or that Ms Kuban had said "look at these chats" or that Ms Young had said "stop it get out of the room" and Ms Kuban replied "no leave it, they deserve it". 48 Mr Tom was questioned on extracts from the Minor Misbehaviour Books from 31 January 2005 - 4 April 2005 which disclose various misbehaviours (about 11) by 'GB' for which he was punished by confinements or cautions. One incident involved a threat to another youth officer, and another, recorded by Ms Young, concerned a threat to Mr Tom by 'GB'. Mr Tom agreed that there was no record of 'GB' using the words bitch or bitches. 49 Mr Tom denied discussing his evidence with the other applicants. However, they had all agreed the allegations were nonsense. 50 In re-examination, Mr Tom confirmed that misbehaviours were written up in the Minor Misbehaviour Book at the discretion of the officers. He said that the incident on 28 March was not a serious incident which required writing up. He believed that confinement of detainees doesn't always work. He observed that of the many write-ups for 'GB', only two or three occurred on his shift, as his preference was to work with the boys in order to change behaviour. 51 Mr Tom said he believed 'GB' and 'RK' were friends and had grown up at Doonside. He added that words such as "gronks" and "chats" were words used by the boys, not the staff. As to threats made by 'GB', Mr Tom said he did not take them seriously. He had heard 'GB' frequently threatening Mr Hoevers, such as he would get his brother on the outside to "get him" or he would make him lose his job. 'GB' was often abusive to other staff. 52 Mr Tom said he had derived great satisfaction from the job of working with the boys to hopefully change their behaviour. Mr Tom said that the boys are aware that they can make a complaint at any time and can make a freecall to the Ombudsman's Office. 53 Character references in support of Mr Tom were provided by three persons who have known him and his family for many years. Mr Tom said he is currently employed as an apprentice fire sprinkler fitter. He had previously been employed by the respondent since November 2003. 54 Mr Nathan Hoevers commenced employment at the Centre as a Youth Officer in January 2001. He was a senior Youth Officer and had occasionally acted up as a Unit Coordinator. He described himself as extremely committed to working with young people in custody. He took pride in his work and promoted physical programs for the detainees. He said he had never before been subject to any disciplinary issue and had never abused, assaulted or incited an assault of a young person in his care. Mr Hoevers provided three character references in support. 55 Mr Hoevers was interviewed by Mr Pell on two occasions - 12 April 2005 and 26 April 2005. He said the answers he gave to Mr Pell were true and honest. He was accompanied on both occasions by his Union Official, Mr Latu Sailosi. 56 Mr Hoevers' version of events on the night of 28 March was, for the most part consistent with Mr Tom's version of events. 57 Mr Hoevers role in the room search was to examine the clothes area and toilet area. Mr Tom was assisting and Ms Kuban stood at the door. The two detainees were watching close by the door. Ms Young was in the office. Mr Hoevers said he returned the clothing to the shelves and the bed linen to the end of the bed. He claimed the boys were "a bit argumentative". He denied squeezing toothpaste and pouring shampoo onto the floor. 58 Mr Hoevers said he had returned with Mr Tom, Ms Young and Ms Kuban after Mr Tom had heard a noise in Room 11. He said that he and Mr Tom cleaned the room after the boys refused to. He confirmed the boys said "look at these bitches cleaning up". Mr Hoevers told Mr Pell he did not hit either boy with a broom. 59 Mr Hoevers agreed that nothing was written up about the incident as he knew the boys were leaving the next day. He had written in the log that night "AM staff could you please make sure that room 11 is cleaned as residents are going to court." He had also written in the Unit Log Book "Room Search 11A and 11B - nil found, good shift". 60 Mr Hoevers told Mr Pell that he did not let 'JD' into Room 11 to assault 'GB' and 'JH'. He said the allegations were completely false and unjustified. Mr Hoevers said he did not see any injury to 'GB' on the night. He explained that 'GB' and 'JH' were younger boys and more immature. Staff tended to look after them. He denied that there was any "stand over" of the younger boys by the older ones. Mr Hoevers said he had gotten on pretty well with 'JD' but he denied that he and two other Lebanese boys had received special privileges. Mr Hoevers was asked about the term "discharge bashing". He said it was his understanding that detainees would sometimes hit, or wrestle with a detainee who was leaving the Centre. 61 After the boys had left the next day, Mr Hoevers said Ms Young had told him that 'GB' had been to the clinic as there was a mark on his eye. He had told the nurse that he and 'JH' had been mucking around in their room the night before. 62 In his second interview, Mr Hoevers was asked specifically if he had assaulted 'GB' and 'JH' with a broom when he was cleaning up their room. He denied doing so and said the allegations were ridiculous. He added that Ms Young was not present for the majority of the time of the clean up as she was sent back to the office by Ms Kuban. He later said that Ms Young had been in the vicinity of the room at the beginning of the clean up, and was then directed back to the office by Ms Kuban because she wasn't needed. He denied that Ms Young was present and had said "get 'JD' out of that room". Mr Hoevers reiterated his earlier statement of what was involved in the clean up of the room. He also explained that 'GB' had been in another room that day and had transferred to Room 11 after 'JH' had a disagreement with the other detainee in the room. 63 In a second affidavit, Mr Hoevers criticised the hand drawn sketch of the Garvey Unit as inaccurate. He said it would be impossible for someone to look into Room 11 from Room 8. He further deposed that towards the end of shift on 28 March, Ms Kuban had directed him to note in the Unit Log Book the room trashing so as to warn the next shift. His entry recorded as follows: "Morning staff please make sure residents in Room 11A/11B clean their room as they both think their (sic) getting out and are going to leave the room a mess". He said he also had a short conversation with the night shift officer, Albert Tevita. It was noted that the 20 minute check later that night indicated that the boys in Room 11 were settled throughout the night. 64 In further evidence in chief, Mr Hoevers confirmed that he had had problems with 'GB'. 'GB' had threatened and abused him and called him names on a daily basis. However, he didn't write him up, as punishing 'GB' didn't seem to work. The team tried other ways, such as talking to him. He said Ms Kuban had also spoken to 'GB' and him about the issues between them. 65 Mr Hoevers believed that the room trashing wasn't as serious as other incidents he had been involved in, such as attempted suicides and actual assaults by detainees on officers. 66 In cross examination, Mr Hoevers was asked about the entry in the Minor Misbehaviour Book of 20 February 2005 in which 'GB' had refused to get out of a wash trolley. When Mr Hoevers went to remove him, they both fell to the ground. He had then escorted him to his room. 'GB' was abusive throughout this incident. Mr Hoevers agreed that 'GB' was a small boy for his age and he could handle him without difficulty. 67 Mr Hoevers was asked about his understanding of the term "incident". He agreed he did not document the room trashing that night in the Unit Log Book. He said that whether an incident is written up, is a matter for the team. Mr Hoevers was shown extracts from the Minor Misbehaviour Book and agreed it dealt with a range of behaviours. He said it was a matter of discretion as to whether misbehaviours were written up. Officers relied upon experience, common sense and sound judgment. 68 Mr Hoevers agreed that the boys would talk and stories would quickly go round the Centre. He accepted that if the boys had trashed their room, and the officers had been forced to clean it up, while being sworn at, this might have an impact on the other detainees in respect to maintaining authority. However, Mr Hoevers denied that this was why he had allowed 'JD' to assault the boys as a lesson to them and other detainees. 69 Mr Hoevers said that although the room search had been random, Room 11 had been chosen as the boys were expected to leave the next day. However, Mr Hoevers agreed he couldn't be 100 per cent sure they wouldn't return. He also couldn't recall if another room search had been conducted in similar circumstances. Mr Hoevers deposed that all of the detainees had been locked down at 8:30pm. He accepted that occasionally detainees were allowed out till 9:30pm; although not on that occasion. 70 Mr Hoevers corroborated much of what Mr Tom had described during the clean up of Room 11. He confirmed the boys had refused to clean the room, claiming the officers had made the mess. Mr Hoevers was asked how this was consistent with the boys then accusing each other of making the mess. Mr Hoevers insisted they had done so. Mr Hoevers was also asked about the position of the garbage bins during the clean up. 71 Mr Hoevers maintained that during the clean up the boys had called them "bitches" and a lot of other names. However, he didn't consider it was worthy of writing up. He denied that this was a gross error of judgement, despite the many examples of confinement 'GB' had been put in during this time. 72 Mr Hoevers acknowledged that he did not record the almost daily threats of violence 'GB' had made against him. However, he did not accept that this was a gross error of judgment. However, he conceded that he should have recorded it somewhere, perhaps in his personal diary. He said he didn't record the threats because he honestly believed 'GB' was incapable of carrying them out. He added that he didn't believe it was necessary to alert other staff, as the threats were directed at him personally. He denied that this demonstrated unsound judgement. With the benefit of hindsight, he conceded that he should have noted the threats made against him. 73 Mr Hoevers was questioned about the Minor Misbehaviour Book entries for 'GB'. These disclosed that 'GB' was often written up and punished, and for far less serious matters than was attributed to him on 28 March. Mr Hoevers did not necessarily agree that if a detainee was allowed to get away with misconduct it would act as an incentive for others to do likewise. 74 Mr Hoevers was asked about how he could write "good shift" on the night of 28 March, in the context of the boys disobeying instructions, telling lies about who trashed the room, using abusive language, damaging property and being harassing and provocative. "Good Shift" was a common way to note the end of the shift. He insisted that no action was taken because they knew the boys were leaving the next day. No action was, or could have been taken, including separating the boys, as no other rooms were empty. Mr Hoevers conceded that what had happened that night was "out of the ordinary" and he now accepted that something should have been recorded in the Unit Log Book. 75 As to his note alerting the morning shift, Mr Hoevers did not agree it was misleading because he did not record that the room had already been trashed. He agreed he could have elaborated more about what had happened that night. However, he was not attempting to be deceitful, nor was he seeking to hide what had actually happened. 76 Mr Hoevers was asked why he had written "nil found" after the room search, and his subsequent evidence that pens had been removed from the room. He said "nil found" meant no contraband had been found, and pens weren't contraband. Pens were allowed, but not overnight and that this was why he had removed them. He denied this later evidence was an attempt to undermine 'GB's' statement that he tried to use a pen in self-defence against 'JD's' assault. Mr Hoevers conceded that a pen could be used as a weapon. He had not recorded them in the Search Register even though they were not allowed overnight. Mr Hoevers said that there was no register of the number of pens at the Centre or how, and when they were provided. 77 Mr Hoevers was taken to 'RK's' interview with Mr Pell. He rejected 'RK's' claims of seeing everything being chucked on the floor and the officers swearing at 'GB' and 'JH'. Mr Hoevers was asked how it was that 'RK' had gotten certain things correct, which he could not see from Room 11. Mr Hoevers believed someone must have told him. He denied the staff were throwing toilet paper or saying "look at you you chats, you's belong under a house". He denied Ms Young was there and had said "that's wrong". However, he agreed that he had gone into the shower area and Mr Tom was in the bed area. 78 Mr Hoevers was shown 'JH's' statement to Mr Pell. Mr Hoevers repeated that he had not thrown paper or cards around the room or trash the room. He denied 'JD' had run over and punched 'JH' in the arm, because it didn't happen. 'JH' claimed 'JD' had not been locked down and was allowed out till 9:30pm. However, Mr Hoevers' recollection was that all the detainees had been locked down. Mr Hoevers rejected claims that Ms Kuban had told the boys to clean up the mess or said "I'll get someone to make you clean it up". He denied Ms Kuban had let 'JD' in the room and told him to hit the boys and after doing so 'JD' had said "if they give you any more hassles just call me". He denied claims that 'JH' picked up a pen in self-defence or that he (Mr Hoevers) hit 'GB' with a broom and a chair. Mr Hoevers emphatically denied allowing 'GB' and 'JH' to be assaulted and trashing their room. He had not been telling lies to the Court. 79 In re-examination, Mr Hoevers emphasised that he didn't believe confining a detainee was necessarily the best means of changing the boy's behaviour. His approach had been to try and help manage their behaviour and work with them. He noted that out of 24 entries in the Minor Misbehaviour Book from 16 December 2004 - 5 January 2005, only 6 came from his shift and from 6 January 2005 - 30 January 2005, five out of 24. This demonstrated that his shift had not adopted such a rigorous writing up of incidents. The policy was a guideline only, and subject to the officers' discretion. He said it was desirable to build a rapport with the boys and talk to them to find out why they were misbehaving. Even so, Ms Kuban had tried to mediate between himself and 'GB'. 80 Mr Hoevers deposed that he had not noticed any black eye on 'GB' on the night and no record was made by the morning shift of such an injury. He agreed there is a procedure for noting and recording any injury to a detainee. 81 Mr Hoevers said that if 'JD' and 'YA' had been allowed out till 9:30pm, this would have been noted in the Unit Log Book. In further cross-examination, it was revealed there was no entry of late lock downs between 15 February and 17 April 2005, although the practice may have been discontinued at some earlier time. 82 Ms Marie Kuban had been employed at Cobham for eight years; the last two and a half as Unit Coordinator. Ms Kuban gave her version of the events of 28 March to Mr Pell as follows: 83 Ms Kuban said she was in attendance at the room search by Mr Tom and Mr Hoevers. She described it as a thorough search, because 'GB' had been known for acquiring contraband. The beds and clothing were checked. She said the boys didn't like the search because their beds would need to be re-made. Ms Kuban denied that shampoo and toothpaste was spilt out on the toilet seat and floor. After locking the door, Ms Kuban said she went back to the office to do the paperwork. While there Mr Tom returned and said that there was stuff everywhere in the room. When she went back down with Mr Tom, Mr Hoevers and Ms Young, they found the room had been trashed - there was wet toilet paper everywhere and toothpaste on the floor. She had told the boys to clean it up, but they refused. She had then instructed Mr Tom and Mr Hoevers to get cleaning equipment. Ms Kuban said she told Ms Young to go back to the office to finish up the paperwork. Ms Kuban said that while the officers were cleaning the room, the boys were laughing and making smart comments like, "look at these bitches". 84 Ms Kuban denied that 'JD' had been let out of his room in order to assault 'GB' and 'JH'. She told Mr Pell that she saw no injury on 'GB' that night. She further denied seeing anyone being hit with a broom during the cleanup. Ms Kuban responded to the boys' allegations by saying that 'GB' had a grudge against Mr Hoevers and had made previous threats against him. She believed that as both boys were in the same room, they had plenty of time to make up the story that night and they knew they were getting out the next day. 85 Ms Kuban told Mr Pell that she agreed the trashing of the room should have been written up. However, it had not been done because they had thought it wasn't worth it as the boys were getting out the next day. Nevertheless, Mr Hoevers had noted it the next day in the Log Book. 86 Ms Kuban rejected the allegation that she, or any of her staff, had supplied cigarettes, clothes or food to any of the detainees. 87 In her reply affidavit, Ms Kuban deposed that on 28 March 'RK' had originally been sharing a room with 'JH'. Earlier in the day 'RK' had buzzed the office and complained that 'JH' was "stressing him". He had said "we've punched on, get me out of here". When she investigated Ms Kuban said she had seen no evidence of a fight. However, moves were common to avoid incidents and as 'RK' was a haemophiliac, 'JH' was put in Room 11 with 'GB', and 'RK' was left alone in Room 8. She also said that the rooms were not opposite and the occupant of Room 8 could not possibly see into Room 11. 88 In cross examination, Ms Kuban denied she had "made up" her evidence of the movement of 'JH' to Room 11 on 28 March. She said that despite the reference to "a punch on" and knowing 'RK' was a haemophiliac, she had not recorded this incident anywhere. As she had observed no injuries, she merely moved the boys around. However, the move was recorded by admissions. (This was confirmed by the bed plans for the day.) Asked why she had moved 'JH' into 'GB's' room, she said they were friends, checks had been made, and 'GB' had been asked if he didn't mind sharing. Ms Kuban denied that the move was a means of explaining the injury to 'GB' which Nurse Palmai had observed. Ms Kuban conceded that she had not mentioned this matter to Mr Pell and that she only did so in her reply affidavit, after having seen all the attachments to Mr Pell's report. 89 Ms Anderson put to Ms Kuban that if she hadn't "made this up", she was guilty of a gross error of judgement in not reporting an assault of a detainee by another. She hadn't believed there had been an assault, as there was no evidence of a punch up. Ms Kuban conceded that she knew 'RK' was a haemophiliac, yet she had not had him checked out by the nursing staff. She agreed she could have had no idea if he was injured under his clothes. However, Ms Kuban believed she had fulfilled her duty of care to 'RK' by moving 'JH' out of the room. 90 Ms Kuban denied that anything was thrown out of Room 11 during the clean up, except for rubbish being pushed out the door. Ms Kuban deposed that a little before end of shift at 10:00pm, she had told Mr Hoevers to make sure the next shift was aware of the mess up in Room 11 and to have a word to Mr Tevita in particular. 91 In further oral evidence, Ms Kuban explained why she had signed off the Unit Co-ordinator's Book on 28 March with the words "good shift". She said that this was standard sign off unless there had been a serious or major incident during the shift. A serious or major incident might be a riot or a serious injury to a detainee. If it is the later, a pictorial form is required to be filled out which shows where an injury to a detainee is observed. 92 Ms Kuban gave evidence of what she did about the conflict between 'GB' and Mr Hoevers. She said she had spoken to both of them in an attempt to resolve the issues. However, it appeared to be purely a personality clash between them. 93 In cross-examination, Ms Kuban said that there had been a points system at the Centre to allow detainees to stay up till 9:30pm. However, this system, which has now been abolished, did not require such occurances to be recorded in the log books. 94 Ms Kuban rejected the claims that Ms Young had tried to stop the assault of 'GB' and 'JH', or that the boys had been given a lesson for refusing to clean up their room and that it had all gone "horribly wrong". She said that no assault had occurred. Ms Kuban explained that she had not told Mr Pell that the boys had accused the staff of trashing their room because she could not remember everything. Ms Kuban said she had been aware of the practice of "discharge bashing", but had never witnessed it. She stated that even if boys were sparring with each other, it must be stopped as it might lead to something more serious. 95 Ms Kuban conceded that she and the staff had made a mistake in not writing up the trashing of the room that night. However, she explained that it wasn't a serious issue, the matter had been verbally communicated to the next shift and no punishment could have been imposed, as the boys were leaving the next day. As to threats made against Mr Hoevers, she said that while everyone was different, she would have written up threats of violence involving someone outside the Centre. When pressed, Ms Kuban agreed that on each occasion a threat is made to staff, a note should be made. However, as threats are made all the time, staff simply ignore a lot of what the boys say. She said that one has to understand the environment in which they work. 96 In responding to Mr Dowse's evidence, Ms Kuban claimed to have spoken to him, on at least three occasions, about 'GB's' behaviour and the threats made by him towards Mr Hoevers. She believed she may have even sent an email to Mr Dowse to that effect. However, she couldn't recall exactly as it was so long ago. (Mr Dowse denied being told of any threats.) Ms Kuban emphasised that not all threats could be regarded as serious. However, she found it difficult to explain in what circumstances a threat was not serious. 97 Ultimately, Ms Kuban did not argue with Mr Dowse or Ms Marchant's observations that threatening conduct needs to be recorded as a minor misbehaviour, irrespective of whether the detainee was to be discharged. However, she disagreed with Mr Dowse and Ms Marchant that she was not a fit person to be employed at a juvenile justice centre. She denied she had a responsibility to record such behaviour in either the Unit Co-ordinator's Book, the Minor Misbehaviours Book or Central Unit Log Book. In re-examination, Ms Kuban emphasised that write ups of minor misbehaviours were always at the discretion of the officer concerned. Indeed, she said she had witnessed Mr Dowse being abused by a detainee and he had done nothing about it. She had also recalled him being called a "gronk". Ms Kuban said that her team particularly used writing up as a last resort, as some kids don't care if they are locked up. Her team had spent a lot of time talking to the kids, including 'GB', although it wasn't always a great success. 98 Two references were tendered in support of Ms Kuban. It was her further evidence that she had never been the subject of any disciplinary or performance issue in eight years of employment with the respondent. 99 Ms Nicole Young had been employed as a Youth Case Worker since September 2004 and was both 'JH' and 'GB's' caseworker. She deposed that she had interacted well with the detainees and had worked well with her colleagues. She had never been subject to any previous disciplinary or performance issue and had never abused, assaulted or incited an assault on any detainee. 100 Ms Young described to Mr Pell the events of 28 March. She said that all the boys had been locked down at 8:30pm and she had remained at her desk while the room search had taken place. Around 9:30pm, when Mr Tom reported a mess in Room 11 she went down to the room with Ms Kuban, Mr Tom and Mr Hoevers. The room was in a mess and Ms Kuban had told the boys to clean it up. They had refused. Ms Kuban instructed the staff to get cleaning equipment and when she returned Ms Kuban told her to go and finish what she had been doing in the office. Ms Young said she could not see or hear anything from the office. Ms Young told Mr Pell she had known nothing of an assault by 'JD' on 'GB' and 'JH' or about their reports of the matter the next day when being transported separately to Bidura and Liverpool. 101 Ms Young agreed 'GB' was a disruptive boy and had frequently been written up in the Minor Misbehaviour Book, mainly for contraband and ignoring staff directions. 102 Ms Young said that there had been a points system at the Centre in which late lock-downs were available for detainees. A note would be made in the detainee's record. However, on 28 March she hadn't seen anyone walking around the Unit, as all the boys had been locked down and no one was out of their room. In cross-examination, Ms Young again denied any of the boys were outside their rooms after 8:30pm. She emphasised that she had not heard or seen anything during the room search. Ms Young told Mr Pell that she had no knowledge of Mr Hoevers hitting 'GB' with a broom. She was aware that they had a personality problem and 'GB' often threatened Mr Hoevers that his brother would "get him" on the outside. 103 Ms Young said the next morning she had noticed a little mark under 'GB's' right eye, but didn't query it. She said that when she was taking 'GB' to admissions the next day, (29 March) between 1:00pm and 2:00pm, they had stopped by the nurse's room. She had heard 'GB' tell the nurse he was sparring in his room with 'JH' and that he was fine. She said that when she was escorting 'GB' that day he hadn't appeared angry, had made no complaints and hadn't said a word. 104 In cross examination, Ms Young further detailed the mark under 'GB's' right eye which she noticed on 29 March. She would not have described it as "extensive bruising". Ms Young rejected the assertion that the reason why she had not asked 'GB' about the injury was because she knew how he had sustained it. ('JD's' assault.) 105 Ms Young couldn't believe the allegations made against her. She said she would never allow anything like what was alleged to have happened occur. Seven character references were tendered in support of Ms Young. 106 In further evidence, Ms Young described the role of a caseworker. She agreed she had tended to write up 'GB' more than Mr Tom, Mr Hoevers and Ms Kuban. However, she agreed that staff could not write up the boys for every single incident. 107 In oral evidence, Ms Young said she had heard 'GB' threatening Mr Hoevers only once (although she had told Mr Pell it was "often"). She would have recorded such a threat as a serious matter. However, she conceded she had worked differently to the other members of the team and said it was an option to ignore such threats. Ms Young denied she had told lies to Mr Pell to protect the other employees and denied she had discussed with them what they would tell him. 108 Ms Young was closely questioned on what happened when she saw the mess in the room. She couldn't recall any conversation about who had made the mess. She had returned to the office and had not seen or heard anything. 109 Ms Young agreed that the boys could not keep abusing staff or doing whatever they wanted to. She agreed she had not recorded 'GB' being abusive to Mr Hoevers or that they had a personality clash. She agreed that abuse and threats to staff, the trashing of rooms, and failure to comply with instructions were matters which should all be written up. She also agreed that if the boys had said "look at these bitches cleaning our room" that it could become a laughing matter the next day amongst the boys and could have undermined the staff and Centre discipline. Had she heard the staff being called "bitches" or being told to "get fucked" she would have been shocked, but it wouldn't have been the first time. 110 Ms Young said that when Mr Tevita arrived for the night shift he was told the boys had messed up their room, and they (the staff) had cleaned it up. She wasn't aware if he had been told about foul language being used by the boys. Ms Young agreed that she had not gone down to check on the boys after the incident, nor had she asked 'GB' the next day, as his caseworker, why he had trashed his room. She rejected the claim that she hadn't asked him because she knew the staff had trashed the room. She denied not caring about the boys and denied she had not asked about what happened because she knew exactly what had happened. She further denied the suggestion that the boys were to be taught a lesson. 111 In re-examination, Ms Young described the duties of the team. Ms Kuban decided who would do what, Mr Hoevers and Mr Tom spent the most time on the floor and she spent most of her time in the office. She said she had liked how Ms Kuban had gotten on well with the boys and with the team. She described herself as a quiet person who had less experience than the others. She had found Mr Hoevers to be easy going and nothing fazed him. She respected him. He had gotten on well with the boys and name calling by the boys didn't affect him. She also described how foul language was commonly used by the boys and not always written up. She hadn't directly observed Mr Hoevers being sworn at by the boys. When Ms Young was asked if she had a conversation with 'RK' on the evening of 28 March, she denied having had any such conversation. Respondent's Evidence Evidence of 'JH' and 'GB' 112 At the time of the hearing, both boys, 'JH' and 'GB', were in the custody of the Department and were brought to give evidence in the proceedings. 113 'JH' had been in and out of detention for offences such as robberies and break and enters. At first when 'JH' was interviewed on 12 April 2005, he told Mr Pell that the officers had trashed his room and 'JD' came over and punched him and 'GB'. Ms Kuban had been laughing and Mr Tom and Mr Hoevers had been there all the time. He also claimed that 'GB' was hit with a broom and a chair. 'JH' told Mr Pell he was hit three times and knocked to the floor. After the third time, he had picked up a pen to stab 'JD' and was knocked over again. 114 When questioned by Ms Anderson, 'JH' could not remember anything unusual about a room search in 2005. However, he identified Mr Pell in the courtroom and said that the answers he had given to Mr Pell during his interview were true. He then said that during a room search one of the workers let another boy in the room and he had bashed 'GB' and teased him. He couldn't recall who let the boy in, or which workers were involved. He later claimed he was hit "a few times" that night. He couldn't remember if he had sworn at staff or thrown anything around the room. 115 In cross-examination, 'JH' claimed that he couldn't really remember anything about the events that night. He said that on other occasions he had stirred up the boys to "just fight" and had recently stirred them up to trash their rooms. 116 'GB' was interviewed by Mr Pell on 11 April 2005. Initially he had told Mr Pell that he didn't want to say anything at all. However, he later told him that he had told Ms Hanrahan on 29 March that: · he had a black eye; · their room had been trashed by the workers; · a worker hit him with a straw broom; · he had been hit by a worker previously with a fist. He then told Mr Pell that he didn't want to say anything further and didn't want any of the information he had provided to be used against any worker or detainee. 117 In oral evidence, 'GB' agreed that he had a criminal record, mostly for break and enters and stealing cars. He agreed that he had shared a cabin with 'JH' one night in 2005 and that he had been interviewed by Mr Pell. When asked if he had told Ms Hanrahan the truth about a black eye, he replied that he had no comment. He said he didn't know why he had been brought to court as he had nothing to say and wouldn't say anything. 118 Ms Anderson requested the Commission to direct 'GB' to answer the questions. When the Commission did so, 'GB' refused. He was then stood down from the witness box. Thereupon, Ms Anderson stated that the statement of 'GB' to Mr Pell would not be relied upon by the respondent in the proceedings. Injury to 'GB's' Right Eye 119 As the case developed, it became apparent, that the evidence relied upon by the respondent for its conclusion that 'GB' had been assaulted at the instigation of the applicants, was the injury to his right eye observed the next day by Nurse Marlene Palmai. Nurse Palmai was not interviewed by Mr Pell. However, Mr Pell relied on an email to Mr Ian Robinson, Assistant Manager of the Centre, of her observations of 'GB' which stated as follows: 'GB' was seen in the clinic on Tuesday 29/3/05, by myself regarding his right eye. Extensive bruising around the entire right eye socket was noted, however there was no boney displacement. On questioning, 'GB' said he was not worried about the injury, it was nothing. He also said it was caused by sparring with his mate last night. When asked who his mate was, he responded with "JH". 120 Originally, Nurse Palmai was not called to give evidence in the proceedings. However, when she did, she disclosed a crucial and surprising incident unknown to Mr Pell and the respondent until that time. I shall come to this matter shortly. 121 In her oral evidence Nurse Palmai described the extensive bruising she observed on 'GB' on 29 March. She said it was dark blue in colour, lighter blue underneath the eye - the bruising covered the eyelid and underneath the eye. When asked about the circumstances as to how she had come to see 'GB' she deposed as follows: Q. Do you remember the circumstances in which you saw GP? A. Yes. I was actually contacted by Ian Robinson on that particular morning and asked: Could I see the young person regarding any injuries that he may have sustained? I had already noticed this young boy. I did know this boy quite well. In passing the day before I had noticed and did speak to Ian briefly that the day before I noticed a blue mark around the corner of his eye. I asked the boy: What happened to your eye? He said: It is nothing. I did not question it. Lots of boys have lots of injuries, things that we don't see. I did say I would see the boy that morning. HIS HONOUR: Q. When you say the day before? A. It was the day before that day, Easter Monday. ANDERSON: That is 28 March. Q. So what time on the Easter Monday did you see him? A. I couldn't 100 per cent say the time, but it probably would have been before lunchtime. HIS HONOUR: Q. Are you saying you saw a mark on his eye on the 28th? A. Yes, I am. ANDERSON: Q. Before lunchtime? A. Yes, that's correct. Q. And you did not put that in your report to Mr Robinson? A. No, I didn't because the response that he said, that it happened last night. When I asked him how it happened, he said it was nothing. He said he was sparring with his mate. When he said sparring, I said: It's a bit more than sparring if you have a black eye. Who is your mate? And he said the young boy JH. When I looked they had been sharing a room together. Q. How did you ascertain that? A. I had the sheet in front of me and I could see who was in the room with him. Q. On the Monday before lunchtime, what did you observe about the mark around the eye? A. Not a great deal. The boy was sitting. As I walked past he had a cap on. Sitting on the bed with a few boys on and he was at the very end. I just sort of noticed the corner of his eye. So I didn't see his eyelid. I saw a blue mark on the corner of his eyelid. That made me ask: What happened to your eye? As he looked at me, I said: What happened to your eye? As he walked past. When I saw him the next morning I didn't want to say I had been asked by somebody in Juvenile Justice to see him. I just wanted to check him from the day before. That is when I questioned him what happened. Q. The day before you observed a mark to the side of the eye? A. Yes. Q. And at that time you took no action? A. No, I didn't, no. I mean the boy didn't make a big deal about it. I wasn't going to make a big deal and get him out. He was involved in an activity. We don't see every single boy that has an injury in Juvenile Justice because they get injuries from all sort of things. There is a policy that we are supposed to see all boys involved in an altercation but that doesn't always happen. 122 Nurse Palmai said that when she saw 'GB' on the morning of 28 March he was sitting in the yard with a cap on. She had observed a blue mark on the corner of the eye and had asked him what had happened. He said "nothing". She had taken no action at that time because he hadn't made a big deal of it. She said that not every boy is examined after an injury. Nurse Palmai believed that the injury she saw the next day was not the same one. The later injury showed bruising under the eye. When asked if it was another injury, she said it probably could have been. However, she said it could also have been an extension of the bruising from the day before. In further questioning, Nurse Palmai said that while she didn't see 'GB's' eyelid the day before, the injury to the eye was very noticeable. When pressed she said that the injury she saw the next day was probably the same injury, but she couldn't be sure. Associate Professor Johan Duflou 123 The respondent sought to clarify the medical evidence of Nurse Palmai by calling an expert witness, Associate Professor Johan Duflou. Associate Professor Duflou has a Master of Medicine in Forensic Pathology and is employed as a Senior Lecturer at the School of Medical Science at the University of NSW. He is also Chief Forensic Pathologist at the Department of Forensic Medicine and he has given expert evidence in a wide range of courts in New South Wales and interstate. Mr Booth objected to the calling of Professor Duflou. However, the Commission accepted that it may be assisted by the expert evidence in light of the startling and significant oral evidence of Nurse Palmai. 124 Professor Duflou was provided with the transcript of the evidence of Ms Young, Nurse Palmai, emails from Nurse Palmai and Ms Hanrahan and references to other parts of the evidence of the applicants. Professor Duflou was asked to express an opinion as to whether there was a second injury to 'GB' the time Nurse Palmai saw him on 29 March. 125 After expressing some difficulty with the description of the injury, Professor Duflou said that the most likely explanation was that there was a second blow to the face between the first and second time Nurse Palmai saw 'GB'. However, the Professor could not exclude absolutely the possibility that this was a progression of the first injury. Nevertheless, this would be quite unusual. The description of the injury on the second day was consistent with a punch to the eye. He based his conclusion on the different descriptions Nurse Palmai provided of the two occasions she saw 'GB' and the other evidence of persons who either saw nothing or a very minor injury before Nurse Palmai saw him on 29 March. Professor Duflou agreed that the first sighting by Nurse Palmai was not an examination and this was a limitation he had to work with. 126 Professor Duflou agreed that bruising can take days, sometimes weeks to disappear. Generally, however, bruising develops rapidly within an hour or two. He concluded that while there can be extension of bruising, it would be quite unlikely that a bruise which starts in a discrete area, would then progress to the whole eye a day later. Nevertheless, he accepted that bruising may continue to come out over 24 hours. In re-examination, Professor Duflou emphasised that it was very unlikely that a bruise to the side of the eye would have progressed to cause the entire injury. 127 Mr Kevin John Dowse is a Unit Manager at the Centre and has acted in the position of Assistant Manager. He has worked for the Department since 1991 and has been at Cobham since 2002. Mr Dowse provided a short affidavit in which he deposed that during a period of just over a month as Unit Manager of the Garvey Unit in February / March 2005, he had no recollection of Ms Kuban telling him that 'GB' had made threats to staff and Mr Hoevers in particular. Mr Dowse said that if such threats had been made, they should have been recorded and dealt with as a minor misbehaviour. 128 Mr Dowse further deposed that if the detainees had conducted themselves as 'GB' and 'JH' were said to have had on the night of 28 March, such conduct should have been recorded and dealt with as a minor misbehaviour. The fact that the staff had believed the detainees would be discharged or that punishment was not able to be carried out, was no reason why such conduct should not be recorded and appropriately dealt with. 129 In further evidence in chief, Mr Dowse said that while he did not keep copies of emails received, he had reviewed all his emails sent since June 2003. He could find no example of any emails from Ms Kuban or to her dealing with threats by 'GB'. Mr Dowse said he always responds to emails concerning a boy's behaviour. 130 In cross examination, Mr Dowse said that Ms Kuban was a good officer, she was good at handling the boys and her team had run smoothly. There had been some complaints concerning Ms Kuban's relationship with other staff, but these had been dealt with. Mr Dowse said he was responsible for checking the records for the Garvie Unit and he had no complaints with the way Ms Kuban had written up the Unit Co-ordinators Log or the Minor Misbehaviour Book. 131 Mr Dowse stated that any threat to a staff member should be reported and an incident report is required. He agreed, however that there were degrees of seriousness as to threats made. Mr Dowse described the write up of minor misbehaviours. This involved a lot of paperwork, negotiating the punishment with the detainee, and the Unit Co-ordinator speaking to the staff and the detainee. 132 Mr Douse agreed that misbehaviour shortly before 10:00pm could not be dealt with by confinement; obviously as the boys were already confined. However, segregation was an option to protect themselves and others while an investigation was conducted. Segregation, however, was not a form of punishment. 133 Mr Dowse was asked to identify in the respondent's policies and procedures where the conduct said to have occurred on 28 March is required to be written up. Mr Dowse agreed that the policy lists various minor misbehaviours which "can" be written up by an officer. He accepted that minor misbehaviour reports were used as a last resort and were discretionary. Mr Dowse conceded that there was a contradiction between what he had said in his affidavit and the respondent's policy. Accordingly, Mr Dowse said that he would like to review his affidavit in respect to the conduct on 28 March as being required to be recorded in the log book for the oncoming shift. Mr Dowse agreed there had been a number of incidents of which he was aware, involving abuse by detainees, and which he had not written up. However, in re-examination Mr Dowse said the examples he was taken to did not involve ongoing abuse and these should be recorded. 134 In questioning from the Bench, Mr Dowse gave this evidence: HIS HONOUR: Q . You mentioned this morning when you were asked about the work performance of Ms Kuban and the working of the team that you had no problems with the team? A. That is correct. Q. And that in particular, Ms Kuban had got on well with the boys? A. Yes. Q. I would be interested - you were the direct supervisor of the other officers, that is Hoevers, Tom and Young? A. No, Ms Kuban was the direct supervisor and I was her direct supervisor. Q. But you knew the officers? A. Yes, I oversaw the whole unit. Q. How would you describe the performance and attitude of Mr Hoevers? A. He got on all right with the young people. He actively got involved with the kids in the programme. He struggled a little with the case work side of things. I relied on Mr Hoevers when Ms Kuban was absent. He would act up as coordinator. Q. And Mr Tom? A. I had no issue with him. He was a very good worker. Q. And Ms Young? A. Very good. She was in the case work role. She was learning that. She had the potential of becoming a very good case worker. Q. If you were to assume one or all were to be reinstated, would you have any difficulties in terms of your relationship with them? A. No. 135 In re-examination, Mr Dowse outlined what should be done in circumstances of ongoing abuse by a detainee towards staff. He said there were various options available, including confinement, moving to another unit and case management involving psychologists. He emphasised that ongoing threats to staff must be recorded. He believed it would be improper for staff to ignore such threats or ongoing abuse as it would dramatically effect the maintenance of discipline at the Centre. 136 Mr Dowse believed the trashing of the room, the refusal to clean up and abuse to staff on 28 March was serious and should have been recorded by the staff. Mr Dowse was also asked about a scenario involving two boys allegedly fighting, one of whom was a haemophiliac. In this situation, Mr Dowse said that the boy should have definitely been seen by a nurse. 137 Ms Jayne Marchant is an Assistant Manager at the Centre. She has also acted as Manager. Ms Marchant was asked to comment on whether it was appropriate to impose a punishment on 'GB' and 'JH' in the circumstances of what the applicants described occurred on the night of 28 March. She deposed that it was normal practice for staff to record minor misbehaviours, regardless of the time of day, or whether the detainee/s were expected to be discharged. Recording of minor misbehaviours is not a stand-alone system and has a direct link to the objective classification system. Ms Marchant believed that if the behaviour of the boys on the night had occurred, either individually, or as part of one incident, it should have been recorded in the Minor Misbehaviour Book and noted in the Unit Log Book and Centre Log Book. 138 Ms Marchant was asked about the procedure to deal with threats to staff by detainees. She said that regardless of the assumed capability to carry out a threat, and particularly if it is ongoing, then such behaviour should be recorded as a minor misbehaviour or staff report for noting in the Unit Log Book. Ms Marchant said that repeated derogatory comments to a staff member should also be recorded. Continued behaviour of this kind would require further intervention. It is necessary for action to be taken in such circumstances and action can only be taken if staff report all instances of threats and derogatory comments. 139 In further evidence, Ms Marchant deposed that unless detainees are permitted to have pens for schoolwork, they are not permitted in their rooms. If a pen is found in a room search, it would be regarded as contraband and recorded as such. She said that if Mr Hoevers had removed pens on 28 March, then this should have been recorded. 140 Ms Marchant was asked about what Ms Young should have done when she noticed a small red mark under 'GB's' eye on 29 March. She would have expected Ms Young to enquire as to what had happened. Ms Marchant said she was disappointed that no other officer had seemingly noticed the red mark on the morning of 29 March. 141 In cross examination, Ms Marchant said that writing up a detainee is not only about punishment, but is also about having a record of the behaviour. While Ms Marchant agreed that there were gradations of threats, all threats should be recorded somewhere. However, she could not point to the respondent's relevant policy or procedure in this regard. 142 While Ms Marchant agreed writing up a minor misbehaviour was discretionary, she believed that all derogatory comments to staff should be recorded as a minor misbehaviour. She accepted some staff choose to deal with misbehaviour differently, such as by negotiation. However, whatever means is used, it still should be notated somewhere, such as under the Managing Difficult Behaviours Procedure. Nevertheless, Ms Marchant agreed 'GB' had not been referred under this procedure in the weeks prior to 28 March, despite a number of write ups for misbehaviour. 143 Ms Marchant said that she knew the four applicants quite well and that if they were to be reinstated she would have no problem personally or with their work. However, she believed it might be difficult to manage the situation professionally considering the rumours at the Centre surrounding what actually happened on 28 March. Even on their own case, the applicants conceded they had done the wrong thing in not reporting the incident or threats to staff and this, Ms Marchant said, would send a message that you could get away with it. 144 Ms Marchant commented on Ms Kuban's reason for moving 'JH' out of 'RK's' room, and said that this incident should have been recorded, particularly because 'RK' was a known haemophiliac and he should have been taken to the nurse. 145 The primary purpose of Ms Merillyn Grey's affidavit was to identify all the relevant correspondence from the respondent to the applicants and to include the reports of the investigator, Mr Pell. Ms Grey is employed in the Department's Employment Relations and Professional Conduct (Division). 146 Ms Grey's affidavit also included the transcript of interviews between the then Director General of the Department, Mr David Sherlock and Ms Kuban and Mr Hoevers on 6 June 2005 and 7 June 2005 respectively. Arising from these interviews and the written submissions from Ms Kuban and Mr Hoevers, Mr Sherlock had expressed the view that Mr Pell should review his comments and findings. Mr Pell did so and prepared a further report on 10 August 2005. In it he concluded as follows: I submit my report is a truthful summary of evidence obtained. I have not endeavoured to conceal any facts in relation to discrepancies in evidence presented by any person. I have endeavoured to outline the variance in evidence by each detainee, the manner in which this evidence was obtained and the fear of reprisals projected by each detainee. I have not indicated the criminal charges or background of each detainee as I believe these facts are not relevant to any genuine complaint made by them. it would be known that each detainee incarcerated at a Juvenile Justice Centre has committed criminal acts. In relation to my belief, based on similar phrases or expressions used by the four Youth Officers, at the time of these interviews, it appeared these officers had "rehearsed and conspired to fabricate their versions of events to depict their actions on the night of 28 March, 2005, were within Departmental Guidelines and they acted properly at all times." This statement, as contained in Point #81 of my report, specifically outlines at the start "Although there is no proof.....". This information is contained in the report as I felt it was pertinent to the investigation. It can be clearly seen that no recommendations were made in relation to any "conspiracy to fabricate evidence" or wrongdoing by any staff member for collaborating prior to interview. I reiterate, this expression was introduced into the report as was my belief that JH was naive and GB was frightened. Mr Wilson suggesting "Mr Pell has decided to dismiss consistent evidence provided by staff by saying that they must have conspired with each other" is in itself a complete misunderstanding of my report. I have attempted to produce a fair and unbiased report outlining all the facts at hand. I agree the evidence against the youth officers is inconsistent in part. However, I believe the evidence from the juvenile detainees, the method this evidence came to hand, the fear and reluctance of the detainees to give evidence, far outweighs the consistent and similar evidence of the youth officers. This is how I attempted to report those facts and I stand by my report. 147 Included in the Department's evidence were the following documents: a) Department of Juvenile Justice Code of Conduct. b) Department of Juvenile Justice procedures in respect to the use of force. c) Department of Juvenile Justice procedures with respect to the making of minor misbehaviour reports. SUBMISSIONS For the Applicants 148 Mr Booth firstly dealt with procedural unfairness issues arising from Mr Pell's investigation and referred to Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 and Bigg v New South Wales Police Service (1998) 80 IR 434. He contended that the Pell investigation exclusively relied in favour of hearsay evidence against an innocent explanation offered by the four persons directly involved in the incident. Further, the Director General of the Department did not give appropriate weight to the applicants' submissions in their defence, nor did the Director General receive a reinvestigated inquiry as he had requested. Mr Pell's investigation was greatly flawed in that he had relied on 'RK's' evidence that his room was directly opposite Room 11. 149 Mr Booth submitted that the misconduct alleged against the applicants was extremely serious and the onus on the employer to prove the misconduct was considerable. The evidence as it emerged during the case, cast serious doubt on Mr Pell's conclusions. For example, it was probable 'GB' had been injured before the incident on the night of 28 March. 150 Mr Booth strongly resisted the respondent's reliance on the failure to record the incident or the threats to Mr Hoevers as matters which were known to the respondent at the time of dismissal, but were not relied on to dismiss the applicants. These fresh charges couldn't now be brought to bolster an otherwise weak case of misconduct or oppose reinstatement. However, Mr Booth acknowledged that all of the applicants conceded, that with hindsight, they should have recorded these matters. 151 Mr Booth suggested that the most crucial evidence in this case was that of Nurse Palmai's observation of an injury to 'GB's' eye before the incident. He put that while Nurse Palmai hadn't examined 'GB' and hadn't seen the total injury on 28 March, she had compared it to what she had seen the next day. She had concluded that it could have been the same injury. Mr Booth acknowledged that no other person had seen 'GB's' injury, either on the night of 28 March or the next morning. Mr Booth said that Professor Duflou's evidence was unreliable as he had undertaken no physical examination of 'GB' and relied on vague non-medical descriptions. If Nurse Palmai's evidence is preferred, the respondent's entire case must collapse. 152 It must also be relevant, Mr Booth submitted, that the four officers had otherwise unblemished records. There had been no suggestion by the respondent that the officers were not competent, capable, and dedicated officers. Their evidence in the Commission was consistent with what they had told Mr Pell. They had undergone exhaustive cross-examination, had been accused of lying, yet they emerged undented. The most plausible explanation for what had happened was what the officers had claimed. Mr Booth asked why they would trash the room just before end of shift knowing that there was a chance they would have to clean it up? 153 Mr Booth submitted that on the other hand, there was far more reason for 'RK', 'JH' and 'GB' to concoct a story, particularly in light of their later inconsistencies and demeanour in the witness box. 'JH's' claim of having been hit three times, was very much open to doubt. It was apparent that 'GB' was not a shy or scared boy, yet Mr Pell had relied on these conclusions to discount completely the first hand evidence of the four officers. 154 As to the requirement to write up minor misbehaviours, Mr Booth emphasised that this was discretionary, as had been effectively conceded by Mr Dowse. The evidence had disclosed that Ms Kuban's team hadn't written up the boys as much as others and this had demonstrated their desire to try alternative strategies, including working with the boys in order to modify bad behaviour. All four officers had given evidence about doing their best for the boys and building a rapport with them. 155 Mr Booth addressed the notation by Mr Hoevers of "good shift, nil found" in the Unit Logbook. The notations were neutral and had disclosed no intention of a cover up; it was close to the end of shift, the boys could not be confined and were leaving the next day anyway. He noted that in any event, Mr Hoevers had spoken to Mr Tevita. 156 Mr Booth strongly criticised the hearsay evidence. Such evidence, he submitted, must attract considerably less weight than direct evidence, particularly when the hearsay evidence was riddled with inconsistencies. Mr Booth highlighted a number of examples of these inconsistencies; in particular, 'RK's' evidence which had demonstrated he could not have heard or seen what he had claimed. Mr Booth dealt with the evidence of 'GB' and 'JH' and the many examples of inconsistencies in what they had told Mr Pell. 157 Mr Booth concluded that there was only one possible outcome in this case. The evidentiary onus on the respondent to prove the misconduct had plainly not been discharged, see Hill and Department of Juvenile Justice [2000] NSWIRComm 128. He added that Nurse Palmai's evidence alone, was sufficient to find in favour of the applicants. Moreover, the evidence of Mr Dowse and Ms Marchant was that there was no real obstacle to the reinstatement of the applicants. For the Respondent 158 Ms Anderson acknowledged some mistakes the respondent had made - there was a failure by Mr Pell to visit the scene of the incident and to interview Nurse Palmai. However, even having regard for these failures, the respondent's view, based on all the other evidence, had not changed. Ms Anderson did not resile from this matter being at the upper end of the Briginshaw test (see Briginshaw v Briginshaw (1938) 60 CLR 336), as it was no ordinary matter. Even accepting the applicants' evidence - that the boys had trashed their room, refused instruction, and were abusive and offensive - it was conduct which should not have been allowed to continue as it would have seriously damaged the maintenance of discipline at the Centre. 159 Ms Anderson referred to the legal principles to be applied in this case and cited Blyth Chemicals Limited v Bushnall (1933) 49 CLR 66, Ferns v Department of Corrective Services [2005] NSWIRComm 9 and Perks and Petroski v New South Wales Department of Juvenile Justice [2005] NSWIRComm 458. She submitted that it was entirely appropriate to rely on other matters when deciding this case, in addition to the specific reasons for dismissal. 160 Ms Anderson dealt with the evidence concerning 'GB's' black eye. She said Nurse Palmai's observation of 'GB's' eye before the incident was consistent with what 'GB' told her about sparring with his roommate. However, whatever she saw in the morning was exacerbated by a further injury that night. In the morning the nurse said she saw bruising on the corner of the eye, not under the eye. Professor Duflou had said it was very unlikely that the bruising had progressed all around the eye. His assessment was entirely consistent with a second injury on the night of 28 March caused by a punch inflicted by 'JD'. Ms Anderson said that what was amazing was that not one of the officers went back to check on the boys after what had happened. She believed that it was because the boys had settled down after being given a "hiding". 161 Ms Anderson submitted that in order to discount the boys' evidence, one must come to the view that they had engaged in a conspiracy to get the applicants into trouble. Notwithstanding that the respondent does not rely on 'RK's' evidence, he had told the truth about some matters and had exaggerated others. Indeed, it would seem curious that 'RK' had sat on a conspiracy for two weeks before being overheard talking about it. Further, both 'GB' and 'JH' had refused to give statements to the police and 'GB' had refused to co-operate with Mr Pell and this Commission. Ms Anderson said that if the boys really wanted to make trouble, why wouldn't they have co-operated? 'GB's' demeanour in the witness box would be obviously different to him being scared of what might happen to him in gaol after being known to be an informer. He had also told people he had trusted. Ms Hanrahan had a rapport with him and he confided in both her and Ms Ailsa Robinson, the Centre's Psychiatrist. Ms Anderson submitted that 'GB's' statement to Mr Pell had a ring of truth about it and not of a conspiracy, as he was most uncooperative. 162 Ms Anderson described the differences between 'GB' and 'JH'. 'JH' had a long and serious criminal history. He had claimed to have fought back when 'JD' had assaulted him. His motive in fighting back was self-defence. Ms Anderson accepted that there were inconsistencies in 'JH's' evidence. However, the real question of whether an assault took place was 'JH's' unshakable evidence. Moreover, his evidence had to be assessed in light of his limited education and criminal career. While he had sought to exaggerate the assault, this doesn't mean an assault didn't occur. 163 Ms Anderson said that Ms Kuban's evidence that 'RK' had complained about 'JH' was a concoction, as was her evidence that she had complained to Mr Dowse, including by email, of 'GB's' threats towards Mr Hoevers. 164 Ms Anderson described the nature of employment in a juvenile justice centre as difficult, but very important work, if criminal careers are to be interrupted at the point where changed behaviour is most likely to occur. The work requires complete and utter trust and the employer requires staff to act as role models for the detainees. She said that one of the most disturbing aspects of this case was that not one of the four staff noticed an eye injury to 'GB' on the night of 28 March. Their attitude demonstrated that they simply did not care about the boys. Ms Young had even been his caseworker and hadn't asked him about it, whereas Ms Hanrahan and Ms Pollock had. Moreover, Ms Young hadn't asked 'GB' why he had trashed his room. Either she already knew and didn't care or hadn't bothered to ask him; in either case she had demonstrated that she was not suitable for re-employment. 165 Ms Anderson said that it had been necessary for Mr Hoevers to say that he had taken pens out of the room only after he saw 'JH's' statement to Mr Pell. What really happened was demonstrated by Mr Hoevers on the night writing "nil found" on the log book. Moreover, it was Mr Tom's evidence that he had no knowledge of pens being removed from the room. 166 Ms Anderson submitted that on the other hand, the applicants' evidence was inherently improbable and untruthful. It was inconceivable that the incident hadn't been recorded or that Ms Young had seen nothing involving the clean up of the room, or that she hadn't asked 'GB' about the mess or his black eye. Ms Young had told Mr Pell of many threats made to Mr Hoevers, but could only cite one occasion in her evidence. Either this meant the other officers had fabricated the extent of the threats, or Ms Young didn't know or care what had been happening. Either way, she should not be re-employed. As for Ms Kuban, it was incredible that she hadn't taken a boy with haemophilia to a nurse after a punch up. 167 Ms Anderson referred to the Minor Misbehaviour Book write ups of 'GB' in the weeks prior to the incident. It defied comprehension that Ms Kuban and Mr Hoevers had not written up 'GB' for what it was said he had done that night. As to the threats and derogatory remarks made to Mr Hoevers, Ms Anderson said that the staff would have the Commission believe they did nothing about them. It was certainly not a sound exercise of their discretion not to act on the threats. Either they didn't care about their duty as role-models and to maintain discipline or it was complete fabrication. Either way, they are not fit for re-employment. In reply 168 Mr Booth said that it was not permissible for the respondent to seek to bolster its case by bringing matters "through the back door" when these matters had been known at the time, but had not been relied upon to dismiss the applicants. 169 Mr Booth conceded that there was a difficulty with the evidence that no one had noticed 'GB's' black eye until Nurse Palmai saw him the next day. However, this failure would include the morning shift on 29 March. Mr Booth said that Professor Duflou's evidence was unhelpful, as he was comparing "apples and oranges". 170 Mr Booth criticised the inconsistencies in the evidence of the boys as compared to the evidence of the officers. For example, 'JH' had claimed to have been hit four times, yet there was no evidence of any injury. Mr Booth stressed that while he was not suggesting there had been a carefully prepared, premeditated conspiracy by the boys, it was clear that they had put their stories together. 171 Mr Booth acknowledged that the 28 March incident should have been written up. However, that doesn't lead to a conclusion of a cover up. These were good officers, with good records and in a well run team. Their failures were minor matters. In any event, the respondent's own witnesses had accepted that not all incidents are written up; indeed Mr Dowse had admitted that he had not written up all threats. This evidence really reflected the reality of the working environment. What the officers had failed to do should not now be used against them adversely . 172 Mr Booth referred again to the hearsay evidence. He submitted that it was not enough to repeat such evidence, time and time again, but even worse repeat it and have it contradicted. Mr Booth posed a theory that what happened that night was that "the boys were having a stir; took it into their heads to stir up trouble for Mr Hoevers and it all got out of hand". CONSIDERATION 173 If ever there was a case which demonstrates the crucial, and indeed life changing role this Commission can have for individual working Australians, this case must surely be it. This observation is not mere hyperbole; for this is not the usual run of the mill unfair dismissal case arising from misconduct. The misconduct here alleged amounted to allegations of criminal conduct by four young dedicated youth workers, with otherwise unblemished records. Their careers with the respondent were ended in extraordinary circumstances. Their future employment prospects will be forever tainted if the allegations are sustained. However, let there be no mistake - if the allegations against the four applicants are sustained, the respondent had no option but to dismiss them. In these circumstances, I do not see how any mitigation or procedural fairness issues would be able to be called in aid of a finding of unfair dismissal. 174 It seems undoubted that the outcome of this case hinges on what the Commission believes occurred in Room 11 of the Garvie Unit on 28 March. These findings will necessarily arise from whose version of events the Commission is to believe - the four applicants or, on the other hand, the various hearsay accounts of what persons were told by the two detainees 'GB' and 'JH', and the other physical evidence said to have been observed of an injury to 'GB's' eye the day after the alleged incident. 175 Determining this case has been made even more difficult by the many areas of evidentiary conflict which are not easily reconciled. Ms Anderson frankly acknowledged, that she would present the respondent's case "warts and all", and indeed, the warts were many for both sides; not least being the refusal of 'GB' and 'JH' to give sworn evidence of what they claim occurred in their room on the night. In the end, Ms Anderson properly conceded that their refusal to give sworn evidence effectively meant their statements to Mr Pell were of little, or no probative value to the Commission. 176 Moreover, during the case, assisted by the inspection of the Cobham facility, startling new evidence emerged. Had this evidence been known to Mr Pell, it might well have altered, or modified his ultimate findings and conclusions. However, as Mr Pell was not called to give evidence, I cannot categorically say whether his views would have changed or in what fashion. 177 Two such matters readily spring to mind. Firstly, the statement of 'RK' that he had seen and heard the assault of 'GB' and 'JH' by 'JD' in Room 11 on the night as his room was directly across from Room 11. As the inspection revealed, the room locations were found to be fundamentally wrong and any chance 'RK' could hear, let alone see what was happening was very unlikely. Of course Mr Pell did not inspect the Garvie Unit and he accepted 'RK's' contention that his room was located opposite Room 11. In the result, Ms Anderson correctly conceded that 'RK's' statement could not be relied upon. However, it is not quite as simple as that. 'RK's' involvement cannot simply be disregarded as it must raise serious doubts as to Mr Pell's conclusions, and for my part, who is to be believed as to what happened on the night. 178 Secondly, Ms Anderson stressed that there could be no doubt that 'GB' had an injury to his right eye on 29 March (although the extent of such injury is disputed). This, it was argued, constituted uncontested evidence that could lead to only one conclusion: the injury had been sustained when 'JD' assaulted 'GB' after being encouraged to do so by one, or more of the applicants. However, the foundation for this conclusion must be in some doubt when Nurse Palmai's evidence during the proceedings is considered. Again, unknown to Mr Pell, Nurse Palmai said she had seen an injury to 'GB's' right eye well before the alleged assault. 179 In my view, serious questions must necessarily arise from both of these matters. I shall return to consider them in the context of some of the other examples of absent, conflicting or implausible evidence in this case. Before doing so, I would turn now to the relevant principles to be applied by the Commission in a case of this kind. In other decisions I have given in cases of summary dismissal, I have identified the four questions which usually arise for determination by the Commission. 180 Firstly, was the conduct alleged against the dismissed employees proven? Secondly, if the misconduct was proven, did the seriousness of the misconduct justify summary dismissal? Thirdly, did the conduct constitute a fundamental and wilful repudiation of the contract of employment by the employee/s? Fourthly, were other mitigating factors taken into account by the employer? See discussion of these questions in Perks and Petroski v New South Wales Department of Juvenile Justice at paras 106 to 108. 181 Before coming to decide whose version of events of the night of 28 March is to be accepted, it seems to me that only the first question above needs to be answered in this case. This is so, because if the applicants are to be believed, then their summary dismissals based on conduct which is not able to be proven, would invariably be held to be unfair. In the alternative, as already observed, if the respondent is able to prove the serious allegations against the applicants, it would be most unlikely that questions would arise concerning the harshness of the dismissals, procedural unfairness or mitigation. 182 As has often been said, the onus of proof in cases of summary dismissal for misconduct rests with the employer. The frequently cited authority for this proposition is that found in Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No3) (1990) 35 IR 70 at page 83: It is undoubted, in my view, and as Mr Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union: see Re Barrett and Women's Hospital, Crown Street [1947] AR (NSW) 565; Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) [1949] AR (NSW) 868; Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 at 279 and Homebush Abottoir [1966] AR (NSW) at 386. However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson [1957] AR (NSW) 547 at 552, 553; North v Television Corporation Ltd [1976] 11 ALR 599 at 602; Flynn v J C Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35. To the extent that Mr Newall submitted to the contrary, his submission cannot stand. The approach as to this shifting of the burden of proof received conceptual support in the judgment of Dixon J, as he then was, in Darling Island Stavedring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643, and in that passage from his Honour's judgment which said at 644: "Again, it is a general principle that absence of default or wrongdoing is presumed and proof is required when its absence is made a qualification of a right. It is in accordance with principle to regard fault as a particular exception defeating the right only when alleged and proved." The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; this, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it. In support of his submissions on onus, Mr Walton referred to the judgment of Dey J in Re Wentworthville Leagues Club Ltd (1976) 18 AILR 355 in which his Honour clearly held that the necessity for proving misconduct lay upon the party setting it up, namely the employer, and even though the union had the responsibility for establishing a proper case for reinstatement. I respectfully agree with his Honour's conclusion, it being entirely consistent with well established authority. As was the case in Wentworthville Leagues Club , the position here is that the company has made an allegation of misconduct in summarily dismissing Mr Parsonage which could well, if left unproven, nevertheless be a stigma on Mr Parsonage which may well have implications for his future employment prospects. If misconduct indeed not be made out, then, on the approach I take, a very serious allegation against Mr Parsonage has been found to have no substance; if that be the result, then, in my view, that finding should be clearly made and published. So too, it will represent a very compelling consideration for restoring the employment relationship otherwise unlawfully severed. 183 Further, in Wang and Others v Crestell Industries Pty Ltd (1997) 73 IR 454, the Full Bench said at para 463: The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case in on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. See also Shop, Distributive and Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 and Coles Myer Ltd v Shop, Distributive & Allied Employees Association (NSW) (1989) 27 IR 299. 184 See also other Full Bench authorities in: Franklins Ltd v Webb (1997) 72 IR 257; Price v Box Valley Pty Ltd (1999) 90 IR 480; Bigg v New South Wales Police Service (1998) 80 IR 434 and more recently in Perfection Dairies Pty Ltd v Finn (2006) 151 IR 197. 185 Thus, the respondent here is required to not only allege the misconduct, but prove the allegations against the four applicants. The Commission must be satisfied that this onus has been discharged on the civil standard of proof, i.e. on the balance of probabilities. See Four Sons Pty Limited v Sakchai Limsiripothong (2000) 98 IR 1 and Humphries v Cootamundra Ex-Services and Citizens Memorial Club (2003) 128 IR 37. 186 It is also a relevant consideration in this case that the onus on the employer in a matter involving what amounts to allegations of criminal conduct must be seen to be at the higher end of the evidentiary scale. Ms Anderson properly conceded as much. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, the High Court observed: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud ((1) See, e.g., Hocking v. Bell (1945) 71 CLR 430, at p 500; Rejfek v. McElroy (1965) 112 CLR 517, at pp 519-521). On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear ((2) Briginshaw v. Briginshaw (1938) 60 CLR 336, at p 362; Helton v. Allen (1940) 63 CLR 691, at p 701; Hocking v. Bell (1944) 44 SR (N.S.W.) 468, at p 477 (affirmed in Hocking v. Bell (1945) 71 CLR, at pp 464, 500); Rejfek v. McElroy (1965) 112 CLR, at p 521; Wentworth v. Rogers (No.5) (1986) 6 NSWLR 534, at p 539 or cogent ((3) Rejfek v. McElroy (1965) 112 CLR, at p 521) or strict ((4) Jonesco v. Beard (1930) AC 298, at p 300; Briginshaw v. Briginshaw (1938) 60 CLR, at p 362; Helton v. Allen (1940) 63 CLR, at p 711; Hocking v. Bell (1944) 44 SR (N.S.W.), at p 478 (affirmed in Hocking v. Bell (1945) 71 CLR, at pp 464, 500); Wentworth v. Rogers (No.5) (1986) 6 NSWLR, at p 538) proof is necessary "where so serious a matter as fraud is to be found" ((5) Rejfek v. McElroy (1965) 112 CLR, at p 521). Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct ((6) See, e.g., Motchall v. Massoud (1926) VLR 273, at p 276) and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J. commented in Briginshaw v. Briginshaw ((7) (1938) 60 CLR, at p 362; and see, also, Helton v. Allen (1940) 63 CLR, at p 711): "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...". There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading. In our view, it was so in the present case. 187 As I have already noted, the outcome of this case has enormous ramifications for the applicants, not least because that their alleged misconduct has been the subject of reporting to the Commission for Children and Young People, the Ombudsman and the Police. If the findings of the respondent are to stand, the applicants' long term employment prospects, particularly in respect to child related employment, may be severely jeopardised. This observation merely demonstrates the seriousness of the issues which this case has disclosed. I have had cause to discuss the effect of dismissal in such circumstances in Najdov and Macedonian Australian Welfare Association of Sydney Inc [2004] NSWIRComm 101 at paras [183] - [184]: 183 It is obvious that the summary dismissal of an employee for misconduct can have serious and sometimes long term implications for the employee. It is for this reason that the Full Bench in Franklins Ltd v Webb reminded employers of the need to be fully satisfied that the misconduct had been committed and that the conduct justified dismissal. The Full Bench said at p261: We consider that the significance of decisions by employers to dismiss employees in circumstances such as occurred here cannot be over-emphasised. Mr Webb is a man of advancing years with long service and an unblemished employment record. The consequences for him of the employer's decision to dismiss are considerable - not only pecuniary considerations arise but also issues such as loss of self-esteem and confidence, difficulty in obtaining future employment and loss of social standing; tremendous upset upon the individual concerned and his family, with serious consequences quite unanticipated at the time of dismissal, must also be taken into account. It is considerations such as those which seem to us to have motivated the Commission in Court Session to remind employers of the need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal. 184 In Hill v Department of Juvenile Justice [2000] NSWIRComm 128, serious allegations concerning the supply of drugs to juvenile offenders, by a person in charge of their welfare were the alleged reasons for the employee's dismissal. The allegations had no basis in fact and could not be proven. I said at paras 62-63: In Standley v Electronics Boutique Australia Pty Ltd , IRC 4516 of 1998, 18 March 1999, I considered the serious implications for an employee where allegations of misconduct are made. I said at p14: It hardly needs to be said that summary dismissal is the most serious form of sanction an employer can take against an employee. It can, not only serve as a means of punishing the employee for transgressions in the then existing employment relationship but can, and often does, jeopardise and diminish the employee's future employment prospects. A finding by this Commission that a summary dismissal was justified, is a most serious matter which may unhappily burden and grievously harm an employee for years into the future. See also my discussion of this matter in Thornton and Happy Hours Pre School Kindergarten , IRC5333 of 1999, 29 July 1999 and Taggart and Bell Sports Australia, IRC5224 of 1998, 10 September 1999. The serious unproven allegations made against the applicant have gravely impugned his reputation. Left to stand unchallenged, these allegations would seriously hamper his future employment prospects, damage his reputation and more than likely, deleteriously effect his well being and that of his family. It is the Commission's duty - indeed, its obligation - to correct the injustices the applicant has so plainly suffered. I unreservedly intend to do so. Meaning of harsh, unreasonable and unjust 188 The words 'harsh, unreasonable and unjust' each have their own discrete meaning and not all three descriptions of a dismissal are necessary for a finding of unfairness. In other words, a particular dismissal might be found to be 'harsh' but not 'unreasonable' or 'unjust'. This principle arises from the oft-quoted authority in Byrne & Anor v Australian Airlines (1995) 61 IR 32 where the expression "harsh, unreasonable or unjust" was considered in an Award clause. In their joint judgment McHugh and Gummow JJ said at p72: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 189 A subsequent Full Bench of this Commission reaffirmed the distinction between the three words, and required the Commission to make a positive and specific finding on a particular dismissal. In Bankstown City Council v Paris (1999) 93 IR 209, the Full Bench said: The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made. 190 In NUW (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388 the Full Bench said at paras [64] and [65]: 64. Finally, we stress the importance of a Member of the Commission at first instance in s 84 proceedings dealing expressly and specifically with the tripartite statutory test. As the Full Bench observed in Outboard Marine Pty Ltd T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183, in order to avoid the possibility of misunderstanding or error, the tribunal should state explicitly the basis upon which it is considered that a dismissal was unfair or not unfair. That is to say, whether the dismissal was or was not harsh, unreasonable or unjust. 65. In the present case, Cambridge C found that the dismissal of the applicant was not harsh, unreasonable or unjust and we consider an examination of the Commissioner's reasons support his conclusion. It would have been preferable, however, if the Commissioner had spelt out in clear terms why, under each limb of the tripartite test, the dismissal was not an "unfair dismissal". I would also refer to a more recent Full Bench decision in Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 . I turn now to the various aspects of the evidence which I have found most troubling. The conflicting evidence Evidence of the detainees 191 In his first report Mr Pell said "Detainee 'RK' gave an independent account of this incident some two and a half weeks after the event. I believe he adequately corroborated the evidence of 'GB' and 'JH' which ensures his credibility." In his second report Mr Pell maintained that the evidence of "'RK' supports and corroborates, in part, the evidence of 'GB' and 'JH' in particular that Ms Kuban released 'JD' who then entered Room 11". He accepted that 'RK' may not have been able to see everything occurring in Room 11. While Ms Anderson did not rely on the statement of 'RK', it is abundantly plain, and notwithstanding some reservations, that Mr Pell did. 192 In my view, 'RK's' evidence was unreliable and must be completely discounted. To the extent that it figured in Mr Pell's ultimate decision making, which I believe it did, I consider that his findings cannot be sustained. I hasten to add that I do not wish to be seen as criticising Mr Pell. His was a particularly difficult job. However, Mr Pell did not inspect the Garvie Unit, let alone at night, and establish for himself, that 'RK' could not possibly have seen, or heard all that he claimed. For example: it would have been impossible for 'RK' to see the officers throw clothes, sheets and toiletries on the floor of Room 11; see and hear 'JD' hit the two boys - he even nominated who got hit first and how many blows were made; see Ms Kuban opening the door to Room 6; see Mr Hoevers searching the shower area and Mr Tom searching the beds. However, while this last claim was in fact true, he could not have seen it and must have been told about it later by someone else. 193 'RK' also said that everyone was locked down at the time and he saw Ms Kuban let 'JD' out of his room and enter Room 11. This is inconsistent with what 'JH' said, that 'JD' and 'YA' were already out of their rooms at the time. The respondent explained this inconsistency by submitting that it didn't matter if either 'JD' was let out of his room or he was already out because he had been allowed to stay out past lock down. In my opinion, this contradiction is not just able to be passed over as of incidental consequence. It fits into a pattern of inconsistencies that must cast serious doubt as to what 'GB' and 'JH' alleged happened. 194 It is also very curious that 'JH' made no mention the next day of Mr Tom being involved in the room search or the alleged assault. He told Ms Kent and Mr Tindale that Ms Kuban, Mr Hoevers and Ms Young had let 'JD' into their room. It is also curious that he told them 'GB' had been hit, but made no mention of being hit himself, despite saying that he had been in the past. 195 In addition, Ms Sunner reported that 'GB' told her that Mr Hoevers and Ms Kuban were involved and that 'JD' was locked in the room with the boys while the officers remained outside laughing. I note that it was Mr Tom's evidence that he had gotten on well with 'GB'. Was this the reason that Mr Tom was omitted from the first versions of the incident? That is, so as not to include him in the story. 196 I note further that Ms Hanrahan reported 'GB' as telling her that only Ms Kuban and Mr Hoevers were involved and that the two workers had sat on the bed laughing while 'JD' assaulted him and 'JH'. 197 In my judgment, the inconsistencies to which I have just referred, considered in the context of all the circumstances, point to a conclusion, that rather than a conspiracy by the four officers to conceal an assault on 'GB' and 'JH' by 'JD', the three detainees had themselves concocted the assault claim in order to cause trouble for the officers, and in particular Mr Hoevers. I am drawn to this conclusion by the other following matters. 198 Firstly, it was abundantly clear from the evidence that Mr Hoevers and 'GB' did not have a good relationship. 'GB' had a series of punishments given to him in the lead up to 28 March, including an incident on 20 February 2005 involving Mr Hoevers and the washing trolley. It was said that he called Mr Hoevers a "fucking dog" and a "fucking dum cunt" and Mr Hoevers physically removed him to his room. Mr Pell concluded that both 'GB' and 'JH' had expressed fear of reprisals if it became known they had complained of the staff's conduct. 'GB' had also expressed fears for his safety if 'JD' found out he had instigated a complaint. I must say, I found the claims of being fearful for his safety to be somewhat at odds with 'GB's' record in the months before 28 March. His language and behaviour hardly sits comfortably with a boy who was frightened. He had taken on Mr Hoevers before and, if the officers are to be believed, he had regularly threatened Mr Hoevers and others. Moreover, if 'GB' or 'JH' were truly frightened of reprisals, why would they say anything at all to Ms Hanrahan, Ms Kent, Ms Sunner and Ms Robinson knowing that one, or more of them would likely feel bound to report the incident? Indeed, Ms Robinson said that 'GB' expressly authorised her to report the incident to management when she interviewed him on 8 April, 2005. 199 Secondly, 'RK' was known to be a friend and co-offender of 'GB'. The three boys were not isolated from each other. There was more than enough time for them to compare their stories. I accept that it is rather curious that 'RK' doesn't feature in the matter until two weeks later, when he is overheard by Unit Coordinator, Ms Fay Latu. That being said, the matter did come to light the very next day by the reports given by 'GB' and 'JH'. 200 Thirdly, it also appeared to be common knowledge that the boys were likely to leave the Centre the next day and it was not uncommon for a bit of skylarking, known as "discharge bashing" to occur prior to leaving the Centre. 201 Fourthly, it seems entirely plausible that the boys had told the staff to "get fucked" and had refused to clean up the mess in their room because they were annoyed with the earlier room search. 202 Fifthly, I am at a loss to understand that if the objective of having 'JD' assault 'GB' and 'JH' was to teach them a lesson for refusing to clean up their mess, as suggested by Ms Anderson, then it failed. The officers cleaned the trashed room anyway, even after the alleged assault which was said to have forced them to clean their own mess. Moreover, it seems beyond belief that the officers would trash the room just before end of shift, knowing that there was the chance they would have to clean it up. 203 Sixthly, if it was the officers intention to teach the boys a lesson and to have what happened spread around the Centre as an example, there would have been the obvious incredible risk that other staff and management would learn of it. In my view, the suggestion that the assault was to serve as an example was just such a stupid self-serving risk as to be utterly implausible. Indeed, there was an even greater risk that an assault on the boys, would leave them visibly injured. Surely, it would be likely that such injuries would be seen by others and queried, as the eye injury was? 204 Seventhly, Ms Anderson was highly critical of Mr Hoevers for failing to mention that he had found pens in Room 11, yet had not recorded anything being found. She posed the theory that Mr Hoevers' belated reference to finding pens was necessary to explain 'JH's' statement that he had picked up a pen to defend himself from 'JD's' assault. I do not understand the logic of this proposition as being of any benefit to the applicants' case. In fact, it would do the opposite. For if it was designed to explain 'JH's' statement, then it would tend to substantiate 'JH's' claims that he and 'GB' were assaulted. This would be entirely in conflict with the applicants' evidence that no assault had taken place. 205 Eighthly, it was said that during the clean up the boys had said "look at these bitches cleaning up our room". Ms Anderson sought to discredit this evidence, by demonstrating that in other incidents reported in the Minor Misbehaviours Book, 'GB' is not recorded as using this expression or the word "bitch", at any time. To me this was a very odd expression for the boys to use. However, the fact that it was so odd, rather than diminish its credibility, in fact enhances it. To my mind, it seems most unlikely that if the four officers were intent on inventing derogatory expressions used by the boys during the incident, they would not have come up with such an off beat one, but rather would have suggested language more consistent with what 'GB' was well known for. The eye injury 206 Ms Anderson submitted that irrespective of the inconsistencies in the evidence of the detainees, what could not be disputed was the evidence of an injury to 'GB's' eye observed by Nurse Palmai the next day. There was no doubt that this evidence was crucial to Mr Pell's conclusions. In his report, he relied on Nurse Palmai's email of 4 April 2005 (see para 118). 207 As has been noted, Mr Pell did not interview Nurse Palmai and obviously had not known that she had noticed a "different" injury to 'GB' around midday the day before, on 28 March. In oral evidence, she said the injury she saw the next day was probably another injury, but it could also have been an extension of the injury of the day before. Plainly, there is the troubling question as to why Mr Tom, Mr Hoevers or Ms Kuban hadn't noticed an injury to 'GB's' eye on the night of 28 March? However, it was also apparent that no one else had either - including the morning staff on 29 March. 208 There can be absolutely no doubt that 'GB' had an injury to his right eye on 29 March. The question arises of course, as to whether it was the same injury as the day before, an exacerbation of the same injury, or a new injury sustained on the night of 28 March? 209 In order to address these questions the respondent called expert evidence from Professor Duflou. His evidence went to whether an injury of the type seen by Nurse Palmai could be the same as she had seen the day before. Professor Duflou said it was more likely that there had been a second injury, but he could not absolutely exclude progression of the same injury. I consider the expert evidence to be inconclusive. Obviously Professor Duflou had not seen the actual injury. He had relied on accounts from Nurse Palmai, Ms Hanrahan and Ms Young. He accepted that when Nurse Palmai saw 'GB' the day before, it was in passing, he had a cap on and his face was obscured and it was obviously not a proper medical examination. In the result, I cannot be satisfied, with any sufficient degree of certainty, that the injury received on 28 March was not the same one observed the next day or whether it may have been exacerbated as the result of "sparring" with his roommate. I note that this was the original explanation given by 'GB' to the nurse. 210 Also relevant was the evidence given by Ms Kuban, and not disputed by the respondent, that 'JH' was moved out of a shared room with 'RK' because 'RK' had complained of having been "punched on" by 'JH' and he wanted out. Leaving aside whether Ms Kuban was negligent in not having 'RK' medically examined and not recording the incident, there was no other explanation as to why 'JH' was moved into 'GB's' room. Accordingly, I accept this evidence. Could it be the "punch on" continued between 'GB' and 'JH' resulting in an exacerbation of an injury to 'GB's' right eye? 211 Further, based on the statements of the detainees, both of them had been hit several times by 'JD'. 'JH' claimed he was hit four times and knocked to the ground. In addition, he claimed 'GB' was hit with a broom and a chair by Mr Hoevers. In this scenario, is it likely that the only injury sustained was a black eye to 'GB' and 'JH' had no observable injuries at all? In my view, the state of the evidence was such as to not permit a finding, based on the balance of probabilities, that 'GB' and 'JH' had been assaulted at all, on the night of 28 March, let alone that the assault had been perpetrated by 'JD' at the instigation and encouragement of the officers. Difficulties with the applicants' evidence 212 One of the difficult questions I have with the applicants' evidence is why no record of the incident on 28 March was recorded in the Minor Misbehaviour Book, the Log Book or the Unit Managers Book. Indeed, Mr Hoevers recorded "8:30 Locked down, Room searches 11A and 11B, Nil found, Good shift". Was this a cover up of what really happened on that night? The explanations offered by the officers were that the incident was not serious, the boys were leaving the next day in any event, and recording such matters was discretionary. 213 On the other hand, Ms Anderson correctly stressed the seriousness of the incident when she identified that, even on the applicants' own case, the detainees had: · trashed their room; · disobeyed instructions; · told lies in blaming the officers for the mess; · damaged property; · were abusive and provocative. 214 On any view of it, these were matters which should have been recorded. Nevertheless, I accept the evidence of the applicants that in hindsight, the incident should have been reported. Putting aside for one moment, whether this failure amounted to gross negligence, does it reveal a wider conspiracy by the applicants to cover up the assault by 'JD' on the younger detainees? Were the applicants not only guilty of criminal conduct, but had told blatant, outright lies to Mr Pell and under oath to this Commission? I consider the answer to be both questions is, no. 215 It must be accepted, I think, that the team of Ms Kuban, Mr Hoevers, Mr Tom, and to a lesser extent Ms Young, did not adopt a strict approach to the reporting of all incidents. While I accept the argument that the capacity to punish the detainees for the incident was limited and unlikely to have been productive, this did not mean the incident should have gone unreported. Similarly, I consider that the threats made against Mr Hoevers should have been recorded. 216 Nevertheless, the Commission has had the benefit of observing the four applicants give extensive and detailed evidence in the witness box, including meticulous cross-examination by Ms Anderson. All of them appeared to me to be credible witnesses who gave truthful evidence to the Commission. Notwithstanding some minor discrepancies, and taking account some exaggeration or inability to recall, (particularly by Ms Young), it seems to me that it was highly improbable that four persons could maintain the same detailed concoction of events to Mr Pell and this Commission many months after the event. My findings in this regard must also be viewed in the context of the serious shortfalls in the respondent's case. 217 Mr Booth was at pains to emphasise that the Commission was faced with the sworn firsthand testimony of the four applicants as against the hearsay and contradictory evidence advanced by the respondent. While hearsay evidence is admissible, the weight which it is given must be assessed in light of the overall facts and circumstances of the case. Of course, the Commission is not bound by the strict rules of evidence (see s 163 of the Act). However, that does not mean that the rules of evidence are to be ignored. In this respect I refer to what the High Court said in The King v The War Pensions Entitlement Appeal Tribunal and Another (1933) 50 CLR 228 at 256: Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, "bound by any rules of evidence." Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice". That being said, there has to be a sound and proper basis for rejecting sworn testimony, particularly where the evidence against it is hearsay and contradictory. In light of all the evidence, I consider that a proper basis for rejecting the applicants' sworn testimony has not been made out and that much of the respondent's relied upon evidence is problematic. 218 I find in favour of the applicants by accepting their version of events of the night of 28 March. In doing so, I have also had regard, inter alia, to the character references provided in support of the applicants. While not decisive, I consider these references tend to establish that the applicants should be believed on their oath. In Shop, Distributive and Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 at page 2 the Full Bench said: "Some argument took place about the admission of character evidence relating to previous good character. We consider that in this class of case, such evidence should be received as tending to prove that the employee should be believed on her oath and that an inference of dishonesty should less readily be inferred against her. Of course, the weight given to any such evidence may vary widely and its effect is always a matter falling within the discretion of the tribunal." Having reached a conclusion on the balance of probabilities, I have also had regard for the following matters. 219 It is incompressible to me that four young officers with settled expectations of ongoing employment, significant periods of service and without any previous performance or conduct issues would engage in conduct of encouraging and inciting the assault of two detainees by another. Why would they risk their careers knowing the likelihood of the detainees reporting the matter or that an injury to the boys would be noticed by other staff? And, if it was to teach the boys and other detainees a lesson about obeying instructions, how would such a lesson meant to be kept quiet? Moreover, how would they expect to maintain a conspiracy of silence with at least seven persons knowing exactly what happened that night? It also seems implausible to me that a scenario could be constructed whereby two officers were cleaning a trashed room while another senior officer permitted an older detainee to assault the two boys in the room. 220 I therefore conclude, on the balance of probabilities, that I have not been persuaded that the respondent has satisfied the onus it bears in proving the allegations against the applicants. To the extent they were guilty of anything, it was a failure to record the incident and the threats made by 'GB' against Mr Hoevers and other officers. With this in mind I refer to what Wilcox J said in Gooley v Westpac Banking Corporation (1995) 59 IR 262 at page 278: As I have already indicated, I do not think that Mr Gooley did demonstrate that he could not make a reliable judgment as to whether information was confidential to Westpac. On the contrary, his judgment on that matter is supported by numerous well-qualified witnesses. But, even if he had made an unsound judgment, this would not justify his dismissal on the ground of serious misconduct. It might be reasonable for an employer to give notice of dismissal to an employee who demonstrates an inability to make sound judgments about an important aspect of his or her position. No employer is required to carry indefinitely an employee who lacks capacity for the job. But it is another matter to dismiss that employee summarily for "serious misconduct". Such a dismissal is likely to be traumatic and damaging to the employee. It brands the employee as someone who has committed an act of gross disloyalty, if not dishonesty. It is not an appropriate way of disposing of an employee who has acted conscientiously and honestly, though with poor judgment . (My emphasis.) 221 I would conclude that the dismissals of the four applicants for misconduct, which has not been proven, were harsh, unreasonable and unjust. The onus on the applicants to establish the unfairness of their dismissals has plainly been made out. I find accordingly. 222 In light of these conclusions, it is not strictly necessary to make findings on the claims that the applicants were denied procedural fairness. That said, it seems to me that Mr Pell's investigation was flawed in two fundamental respects. Firstly, by his failure to view the scene which resulted in his acceptance of 'RK's' claims of what he could see and hear, and secondly, by his failure to interview Nurse Palmai which may well have disclosed the earlier injury to 'GB' which she observed the day before. In addition, I note that Mr Pell concluded that both 'GB' and 'JH' were injured in the incident (see para 56 of his findings). I do not understand the evidentiary basis upon which a finding of injury to 'JH' could have been concluded based upon the material available to Mr Pell. Relief to be ordered 223 All of the applicants seek reinstatement to their former positions (s 89(1)) and the payment of lost remuneration (s 89(3)) since their dismissals. I understand that all of the applicants have secured alternative employment since their dismissals; a factor which I have taken into account pursuant to s 89(6) of the Act. 224 There is no doubt that the primary remedy in respect to unfair dismissal is reinstatement. This principle derives from a long line of authority which was recently summed up in Budlong v NCR Australia Pty Ltd [2006] NSWIRComm 288 at paras [105] to [110]: 105. It is trite law that reinstatement is the primary remedy. It is only where it is impracticable to reinstate an applicant that the other remedies available under s 89 of the Act may be applied: see Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [88]; Riley v Workcover Authority [2006] NSWIRComm 108 at [94]. 106. In Plummer v Stannard Bros Launch Service (2005) 145 IR 111 the Full Bench stated the position as (at 115): Reinstatement is the primary remedy under s 89 of the Act: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at [34]; Little v Commissioner of Police (No.2) (2002) 112 IR 212 at [88]; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37 at [125]. Other remedies may only be ordered if reinstatement is considered to be impracticable. That requires the member of the Commission, in all cases where relief is to be ordered, to give active consideration to the practicability of reinstatement. Indeed, we consider s 89(5) requires a finding that it would be impracticable to reinstate the appellant prior to making an order for compensation and in the process of making that finding to give reasons: Entertainment Distributors Company Pty Limited and Anor v Burnard and Ors (1993) 49 IR 446 at 453. 107. The Full Bench in Little (No 2) considered the test to be applied as to the practicability of reinstatement of re-employment. At paragraph [91] the Full Bench stated: 91 It is in this light that we turn to consider the question of the practicability of reinstatement of re-employment. In this respect, we propose to apply the test in Perkins v Grace Worldwide (Aust) Pty Limited (1997) 72 IR 186 at 191-192 (which was adopted in Hollingsworth v Commissioner of Police at 341-342). 108. The focus in Perkins was on the issue of whether a loss of trust and confidence was a relevant consideration in determining whether reinstatement was impracticable and it is worth repeating what the Full Bench of the Federal Court had to say: Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Limited (Wilcox CJ, von Doussa and Marshall JJ, 13 December 1996, not yet reported). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushell (1933) 49 CLR 66 at 81-2 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based. At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act. If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee. Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable. 109. This approach was also accepted in Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282. 110. As to the approach to be taken in assessing the practicability of reinstatement, the comments of Cahill VP in NSW Public Service Professional Officers Association v Forestry Commission (NSW) [1990] 39 IR 46 at 50 are relevant: In this regard industrial tribunals should examine with some rigour, and should not too readily accept, claims made on behalf of an employer who has been found to have treated an employee unfairly in the matter of termination of employment that there would be "practical uselessness" in attempting to re-establish the previous employment relationship. My views in this regard accord with those of McClelland J in Hardie Ferodo Pty Ltd v New South Wales Nurses' Association (unreported, 28 Nov 1978), as cited with approval by Hungerford J in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 at 99. In the Hardie Ferodo case McClelland J said this: "This is, of course, a consideration to be taken into account in every reinstatement case but it must be treated with considerable caution. These cases come before the Commission by way of s 25A proceedings and the fact that such a case proceeds to arbitration after conciliation has failed provides in itself obvious evidence that the employer does not want the employee back. If that consideration had been allowed to outweigh all others the Commission would never have reinstated anybody." 225 Ms Anderson strongly argued that even on the applicants' own case, they had demonstrated they were unfit to be employed as officers of the Department of Juvenile Justice. This contention arose from the applicants' admissions of a failure to record the serious incident of 28 March and their failure to record the threats of violence and abuse by 'GB' towards Mr Hoevers. Ms Kuban was also criticised for her failure to refer 'RK' to medical attention in the light of a "punch on" with 'JH', and 'RK's' known haemophilia, and Ms Young attracted criticism for her failure to ask 'GB' about what had happened on the night. 226 It must be accepted that all of the applicants acknowledged, in hindsight, that the incident should have been recorded. I would also acknowledge that the applicants' team seems to have adopted a less rigid or stringent approach to reporting of incidents, and threats and abuse. It cannot be doubted, as Mr Dowse and Ms Marchant conceded, that not all incidents of threats or abuse against officers are recorded. In practical terms, I understand why this would be so. The policy of reporting of minor misbehaviours is discretionary because it must be administered sensibly and flexibly. Notwithstanding these observations, I accept that the applicants should have recorded the incident of 28 March. However, I do not believe that their failure in this regard and in respect to other incidents, were such as to warrant dismissal, let alone preclude reinstatement in circumstances where the applicants have been otherwise found not guilty of the serious misconduct alleged against them. It is also a relevant factor that they all had otherwise unblemished records in respect to performance and conduct. 227 Particular regard must be had for Mr Dowse's evidence that all four applicants were very good workers and the team worked well. He had no complaints with the team's writing up of the Unit Logbook, Centre Logbook or Minor Misbehaviours Book. He also had had occasion to act Mr Hoevers up as Unit Co-ordinator. Mr Dowse said he would have no difficulty with any of the applicants' reinstatement. 228 The highest the evidence got supporting the impracticality of reinstatement was Ms Marchant's testimony concerning "professional" difficulties arising from rumours about the incident at the workplace. She said that reinstatement might send the "wrong message" in that the applicants had failed to report the incident and other incidents involving 'GB'. 229 In my view, Ms Marchant's observations (noting also she had no personal difficulty with reinstatement) amount to no more than an inconvenience for the employer if reinstatement is ordered. I do not consider this an impediment to reinstatement in the particular circumstances of this case. 230 Accordingly, I intend to order that the four applicants be reinstated to their former positions, without loss of continuity. 231 In respect to the claims for lost remuneration, I consider that some recognition of the applicants' failures and admissions during the proceedings should be reflected in the Commission's determination of these matters. I propose therefore to order back payment of 60% of the amounts the applicants would have otherwise received if they had not been dismissed, less any earnings during the period from dismissal to reinstatement. ORDERS 232 Pursuant to s 89(1), (3), (4) and (6) of the Industrial Relations Act 1996, the Industrial Relations Commission orders that: 1. The respondent, the Department of Juvenile Justice shall reinstate the applicants Marie Kuban, Nathan Hoevers, Nicole Young and Justin Tom to the positions they previously held before dismissal at Cobham Juvenile Justice Centre. 2. The periods of employment of the applicants shall be taken as not to have been broken by their dismissals. 3. The respondent, the Department of Juvenile Justice shall pay to the applicants, Marie Kuban, Nathan Hoevers, Nicole Young and Justin Tom 60% of the amounts they would have otherwise received had they not been dismissed, less any other earnings of the applicants during the time from dismissal to reinstatement. 4. The above orders shall take effect within 21 days of today or such other mutually convenient time as agreed between the parties. Peter J Sams, AM Deputy President Annexure A ATTACHMENTS 1. Instrument of Appointment - Bob PELL of B & C Investigations 2. Further Instrument of Appointment - Bob PELL of B & C Investigations 3. Instrument of Engagement - Bob PELL of B & C Investigations 4. Search Register Page 307362 5. Unit Coordinator's Log - Garvey Unit dated 28 March, 2005 6. Unit Log Book - Garvey Unit dated 28 March, 2005 7. Email Message from Mariene PALMAI - Justice Health Services 8. Email Message from Fiona HANRAHAN dated 29 March, 2005 9. Report of Ian ROBINSON, Assistant Manager dated 4 April, 2005 10. Advice to Police by Kevin DOWSE dated 4 April, 2005 11. Report by Ailsa ROBINSON, Centre Psychologist dated 8 April, 2005 12. Complaint Registration by Transport Officers TINDALE & KENT 13. Email Report of Unit Coordinator Fay LATU dated 14 April, 2005 14. Transcript of Interview - Youth Officer Fiona HANRAHAN 15. Transcript of Interview - Case Officer Vickie-Maree POLLOCK 16. Transcript of Interview - Juvenile Justice Officer Sharon SUNNER 17. Transcript of Interview - Youth Officer (Transport) Gary TINDALE 18. Transcript of Interview - Youth Officer (Transport) Michelle KENT 19. Transcript of Interview - Juvenile Detainee 'RK' 20. Transcript of Interview - Juvenile Detainee 'GB' 21. Transcript of Interview - Juvenile Detainee 'JH' 22. Transcript of Interview - Detainee 'JD' 23. Transcript of Interview - Unit Coordinator Marie KUBAN 24. Transcript of Interview - Youth Officer Nathan HOEVERS 25. Transcript of Interview - (2nd) - Youth Officer Nathan HOEVERS 26. Transcript of Interview - Youth Officer Justin TOM 27. Transcript of Interview - (2nd) - Youth Officer Justin TOM 28. Transcript of Interview - Youth Officer Nicole YOUNG 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.