Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Elvin Brian Brown) and Department of Juvenile Justice [2008] NSWIRComm 154

Industrial Relations Commission of New South Wales

CITATION: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Elvin Brian Brown) and Department of Juvenile Justice [2008] NSWIRComm 154

APPLICANT Public Service Association and Professional Officers' Association of New South Wales (on behalf of Elvin Brian Brown) PARTIES: RESPONDENT Department of Juvenile Justice

FILE NUMBER(S): IRC 2182 of 2007

CORAM: Sams DP

Termination of employment - summary dismissal - juvenile justice officer - unfair dismissal - whether dismissal 'harsh, unreasonable or unjust' - allegations of assault of two detainees - allegations of excessive force and unauthorised restraints - applicant claimed appropriate responses and self-defence - independent investigations - CCTV footage relied on - interviews with detainees and various witnesses - investigators find allegations sustained - finding of misconduct - opportunity to defend allegations - misconduct proven - reporting to Commission for Children and Young People and Ombudsman - no issues of procedural unfairness. CATCHWORDS: Held; onus of proof on employer - findings based on balance of probabilities - allegations found to be proven - Commission generally accepts findings of investigators - dismissal not 'unjust' or 'unreasonable' - conduct not wilful - balancing of relevant considerations - dismissal found to be 'harsh' - relief ordered - reinstatement impractical - re-employment to Youth Officer on strict conditions - probation and retraining - final warning - no orders for lost remuneration.