Industrial Relations Commission of New South Wales CITATION: Stephen John Adams V Public Emplyoment Office [2006] NSWIRComm 1066 APPLICANT Public Service Association and Professional Officers' Association Amalgamated Union Of New South Wales on Behalf of Stephen John PARTIES: RESPONDENT Pubic Employment Office By its agent the Director General of Dept of Juvenile Justice FILE NUMBER(S): 1905 of 2005 CORAM: Tabbaa C CATCHWORDS: Use of Excessive Force Reportable conduct LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 19/10/05 DATE OF JUDGMENT: 04/18/2006 APPLICANT: Public Service Association and Professional Officers'Association Amalgamated Union Of New South Wales (on behalf Mr.Stephen John Adams) Solicitors: Andrew Wilson LEGAL REPRESENTATIVES: Respondent: Department of Public Employment office by its agent the Director -General of the Department Of Juvenile Justice Solicitors: Paul Houston DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: TABBAA, C. 18 April, 2006 Matter No IRC 1905 of 2005 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Stephen John Adams) and Public Employment Office by its Agent the Director General of the Department of Juvenile Justice Application by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of its member Stephen John Adams re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1066 1 The Public Service Association and Professional Officers' Association Amalgamated Union of the New South Wales (PSA) filed an application on 14 April, 2005 pursuant to the provisions of Section 84 of the Industrial Relations Act 1996 seeking relief for the alleged unfair dismissal of casual Youth Officer (YO) Stephen John Adams, a member of that Association, by the Public Employment Office by its agent the Director-General of the Department of Juvenile Justice (the DJJ). 2 The matter was listed for conciliation and directions hearing on 26 May, 2005. However, that hearing was stood over to a date to be fixed upon advice being received that attempts were being made to organise a meeting between the Director-General, the Assistant Director-General and the PSA in relation to the said dismissal. 3 The Commission was advised, at a further conference and directions hearing held on 04 August, 2005, that the claim remained unresolved. 4 A filing Schedule was issued in relation to a threshold matter raised on behalf of the Respondent. It was contended that the Commission had no jurisdiction to deal with the Applicant's claim as he had been engaged as a casual employee. The threshold matter was set down for hearing on 17 August, 2005. However, that date was vacated and the filing schedule was revised on 23 August, 2005 following advice that the DJJ no longer wished to pursue that jurisdictional issue. 5 The matter was set down for hearing of the merits argument in Wagga Wagga on 18 and 19 October, 2005. Mr. A. Wilson, entered an appearance on behalf of the PSA and called evidence from: Mr. Stephen John Adams Applicant Mr. Ross Eggleton Acting Unit Manager – JJC Mr. Graham John Saddler Youth Worker – JCC 6 Ms T. Anderson, of Counsel, entered an appearance on behalf of Respondent and called evidence from: Ms Frances Jomantas Psychologist, JCC Ms Ruth Maria Miegel Senior Youth Officer, JCC 7 In addition, an affidavit was tendered from Mr. Paul Houston, Manager, Employment Relations and Professional Conduct Unit, Department of Juvenile Justice. The affidavit contained the investigation report with respect to the allegations made against the Applicant (including the transcript of the taped interviews with the persons concerned), a copy of the JCC's procedures with respect to the use of force and its Code of Conduct. BACKGROUND 8 On 15 September, 2003, YO Adams commenced employment with the DJJ at the Riverina Juvenile Justice Centre, a minimum security detention centre for young offenders. 9 On 23 May, 2004, he was rostered to work in the Murray Unit on the afternoon shift commencing at 2.45pm and finishing at 11.00pm. The Murray Unit houses the older detainees within the Centre. 10 The Detainees were in the recreation area of that Unit when, at approximately 8.20 or 8.25 pm, a detainee, who shall henceforth be referred to as JB, approached YO Adams and requested that he be taken to his cabin. It was not disputed that JB's behaviour that evening was unsettled and that he had agitated a number of fellow detainees. As he escorted JB to his cabin, the Applicant maintained that he attempted to counsel him about the effect his behaviour was having on the other detainees. Once outside the door to his cabin, the Applicant informed JB that, as it was very close to his scheduled bedtime (8.30 pm), and also because of his conduct earlier that evening, he would not be allowed back out of his cabin again that evening. 11 At that point, JB changed his mind about going into his cabin and attempted to return to the recreation room. YO Adams alleged that he restrained JB in a departmental hold, asked YO Saddler (who was coming up the hallway) to open the door to that detainee's cabin, and placed JB inside it. The Applicant's stated motive for restraining JB from racing back into the recreation area was to ensure the health and safety of that detainee who, he believed, was at risk of being assaulted by the other detainees as a result of his earlier behaviour. 12 A number of staff members were in the vicinity at the time. YO Paul Strutt was in the corridor securing another detainee in his cabin, approximately 10 metres away. YO Ruth Miegel, was in the process of conducting a property check in a cabin alongside that of JB. The door to that cabin had been left wide open. 13 Ms Jomantas, the Unit Co-Ordinator on that shift and a qualified Psychologist, contended that she was on her way back from the Laundry to the Murray Unit at approximately 8.20 pm when she heard a scuffle and yelling just inside the back door of the Unit. The grate on the back door had been left open. She was sure that it was JB yelling as his voice was very identifiable. 14 Ms Jomantas entered the Unit through the main entrance to the recreation area. She noted that several detainees in that area had been left unsupervised. She observed three Youth Officers walking back along the hallway towards the recreation area. 15 Upon being advised by YO Saddler that JB had been forcibly put into his room, she proceeded to JB's cabin to talk to him. JB made a serious allegation to her about the Applicant's treatment of him. For that reason, she asked JB to complete a Complaint Registration Form and requested the three Youth Officers to submit incident reports. JB told her that he wanted YO Adams charged and would be seeking monetary compensation. 16 Ms Jomantas recalled advising YO Saddler that JB had lodged a complaint against YO Adams and wished to have him charged. 17 On submitting all of the relevant paperwork to management, Ms Jomantas drew attention to the inconsistency between YO Saddler's written report and what he had allegedly verbally reported to her about the incident. 18 Ms Jomantas confirmed that she had not, at any time, authorised the use of force nor was she aware of any circumstances that would require YO Adams to use force against JB. 19 The matter was reported to the Police the following day. Following an investigation into the complaint, the police decided not to press charges against YO Adams. 20 On 08 July, 2004, the Director-General appointed Ms Katherine Van Gurp, Investigation Officer, Employment Relations & Professional Conduct Unit, Department of Juvenile Justice, to conduct an investigation into the incident on 23 May, 2004. The terms of reference included relevantly: (1) To investigate the allegation that Youth Officer Adams used excessive force on detainee JB during an incident in the Murray Unit at Riverina Juvenile Justice Centre on 23 May, 2004. Specifically it was alleged that Youth Officer Adams grabbed the detainee around his head putting pressure on his jaw area;... (2) To examine the circumstances surrounding that incident and the detainee being placed in his cabin. 21 Briefly, the report found the allegation in relation to the Applicant was proven. It followed, therefore, that if the Director-General was to determine that such conclusion was supported by the evidence, then the Department would be required to report YO Adams to the Commission for Children and Young People (CCYP) pursuant to Section 39 of the Commission for Children and Young People Act 1998. 22 The Department forwarded to YO Adams, on 08 December, 2004 and again on 18 February, 2005, Notices to Show Cause. No response was received by 29 March, 2005 causing the Director-General to write to the Applicant advising the following - firstly, that his services were being dispensed with pursuant to Section 39 of the Public Sector Employment and Management Act 2002; secondly, that a notification had been forward to the Commission for Children and Young People as it had been decided that the matter was reportable as a Category One matter for the purposes of the Children and Young People Act 1998; and finally, as part of the finalisation process, a copy of the investigation file had been forwarded to the Ombudsman pursuant to the provisions of the Ombudsman Act 1974. 23 The Applicant sought re-instatement to his former position without loss of pay and with continuity of service. 24 In addition to the dispute as to the dismissal of the Applicant, the issues in dispute between the parties were: the appropriateness of the use of force under the circumstances; contrary accounts of the actual restraint used upon the detainee, and the location of various staff members at the time of that particular incident. THE EVIDENCE Site Inspection 25 A site inspection was conducted prior to the commencement of the arbitration proceedings. The single cabins which housed the detainees were located on both sides of a long and narrow corridor to the left of the recreation room in the Murray Unit. At the far end of that corridor was a solid wooden back door with a grate in the middle. Except for periods of cold weather, the grate was left open to allow fresh air in. On the evening in question, the grate had been left open. The cabin accommodating JB was Room 21, the last cabin to the right of that back door. The Incident on 23 May, 2004 The Evidence of YO Adams 26 The Unit Co-Ordinator, Ms Frances Jomantas, stated, during her taped interview for the internal investigation, that it was her normal practice to buy a departing detainee a can of Coke on his last evening at the Centre. There was a detainee leaving the Centre on 24 May, 2004 and so, at approximately 8.15 pm on 23 May, 2004, she left the Murray Unit, walked over to the compound where the laundry was located, unlocked the gate, walked over to the laundry and bought a coke from the vending machine located therein, and retraced her movements back to the Unit. 27 During the inspection, Ms Jomantas recreated her movements on that evening and estimated that she would have been away for about 5 minutes. It was apparent that she normally takes large strides and has a brisk walk. 28 She said that she was approximately 8-10 metres away from the back door of the Unit when she heard movement and the sound of a scuffle. She heard someone yell out as if in pain. She recognised JB's voice which she described as "distinctive". 29 She continued walking towards the front entrance of the Unit and entered through the recreation room. She observed that all the male detainees who were in the room when she left a few minutes earlier, with the exception of JB, were sitting around very quietly but there were no members of staff around. The detainees should not have been left unsupervised. One after the other, the officers wandered in from the hallway. 30 She stated that she could hear JB still swearing and carrying on. She went into the secured office area, poured out the Coke into a plastic cup, left the can in the office, and returned to the recreation room to give the drink to the departing detainee. 31 In the interim, YO Saddler returned to the recreation room and sat down. Ms Jomantas said that she went over to him and sought an explanation from him about the noise she had heard and what was happening with JB. 32 Ms Jomantas recalled that YO Saddler explained to her that JB had refused to go to bed and that YO Adams had grabbed him around the head and placed him in his cabin. She stated that alarm bells started ringing in her head because bed-time was 8.30pm for all the detainees yet all of them, barring JB, were still in the recreation room. 33 She confirmed that it was the customary practice within her team that if a detainee kept asking to be let in and out of his cabin, and it was close to his bedtime, say around 8.25 pm, then that detainee would not be allowed back out. The only occasion when a detainee would be locked up in his cabin at 8.10 pm would be as punishment for a minor misdemeanour. 34 Ms Jomantas decided to go and talk to JB. She stated that JB told her that his head had been squashed between both the Applicant's arms causing injury to his jaw and chipping his tooth. JB showed her his face. 35 She stated that, at that point, she had unlocked his door, stood in the doorway and observed his face. The left side of JB's face was "very, very, red" but neither swollen, nor grazed nor scratched. He insisted that she look at his tooth but she could not see anything from where she was standing. 36 She explained that when JB was agitated, he tended to repeat himself over and over again and became difficult to comprehend. She said that she had advised him to take a few deep breaths while she fetched a Complaint Form for him to complete. 37 On her way back to JB with the form, she heard the staff call the 8.30pm beds. 38 Ms Jomantas stated that after JB completed the Complaint Form, he announced to her that he wanted the Applicant charged. She had explained to him that such a decision rested with the Duty Manager. 39 Ms Jomantas telephoned Craig Gator, the Duty Manager, about the incident. As instructed by Mr. Gator, she asked all the staff on duty to complete a Centre Incident Report which she collected before the end of the shift, with the exception of that from YO Strutt who had gone off duty at 8.30 pm. 40 Ms Jomantas gave evidence that when she mentioned to YO Saddler that JB wanted the Applicant charged, he had proceeded down the corridor towards the cabins. 41 Shortly thereafter, JB had become agitated once again. He began kicking the walls and everything else in sight. He alleged to her that YO Saddler had said to him words to the effect that, "I don't know what you're going on about, nothing happened. What are you going to charge him"? JB stood on his desk and kicked out stating that he wanted to get at YO Adams and hurt him. JB would not calm down even when she advised him that Mr. Gator was going to speak to him about the incident the following morning. 42 Ms Jomantas stated that, at that stage, she became scared. JB was a fairly new detainee and he was wearing steel-capped boots. He was determined to break the windows. She rang another Unit Co-Ordinator, George Calder, who assisted her in escorting JB to the secure room where he was put in segregation. The Evidence of YO Adams 43 YO Adams gave a very brief summary of the incident in his Centre Incident Report dated 23 May, 2004. He stated that JB had been disrupting the other detainees in the recreation room just before he asked to be taken to his cabin at about 8.27 pm. As he escorted JB along the corridor, he advised JB that, as it was close to bedtime, he could stay in his room. He contended that JB had agreed but when they reached his cabin, JB refused to go in and wanted to play around. YO Adams then placed both his arms around JB's arms from behind and when YO Saddler opened the door to cabin 21, he placed JB inside the cabin. 44 In the Interview on 19 August, 2004, YO Adams had elaborated on the contents of the Incident Report: # JB's conduct had been disruptive earlier that evening; # YO Saddler had warned him, on a couple of occasions, that if he did not settle down he would be sent to bed early; # JB had continued annoying another detainee, HG, who became angry with him; # At about 8.20 pm or 8.25 pm, JB had requested that YO Adams put him in his cabin; # As they walked down the hallway, he told JB that because it was nearly bedtime, because of his earlier behaviour which had angered other detainees, and for his own safety and the safety of others, he would not be allowed out again that evening; # JB had not shown any annoyance. He had merely " mucked around and shaped up and bounced around " and announced that he no longer wanted to go in his cabin. 45 Regarding the use of force, YO Adams had stated at the Interview that, at that point, JB bounced off the back of the back door and came straight at him. They were nearly at the door to cabin 21. YO Adams, still believing that JB was mucking around, grabbed him from behind as if to say "Come here, you". YO Adams asked YO Saddler, who by that time had followed them up the corridor, to unlock JB's door, and he placed JB within that cabin: It was a…it wasn't even use of force. There was no, no force required. He wasn't struggling or anything, like he wasn't going off or anything like that. He wasn't angry with that situation, of being placed in there. When we placed him in the room, and... locked the door. He didn't start kicking, or banging, or yelling, or anything, and we progressed. I thought he was right with it, and we progressed back up to the rec. room. 46 Later in that interview, he had repeated: …. it wasn't even a use of force. Like it didn't require any real use of force, I just – he sort of bounced around, and sort of half shaped up, but I know that he wasn't – he – he never meant it. Like it wasn't as if he was all cranky, " You put me in me room ". It was as if sort of he was mucking around with me. 47 Further along during that interview, the Applicant stated that JB was "yelling and carrying on" but was not abusive. 48 In the statement sworn by YO Adams on 07 September, 2005, he described the incident as follows: At approximately 8.20pm, Detainee JB approached me and asked to be taken to his room. I took Detainee JB down the hallway from the recreation area to his room. Once detainee JB was outside his room I told JB about the effect of his behaviour using words to the effect, " Your behaviour was unacceptable. You've been given warnings. You may as well stay in your room for your own safety". After I made these comments he started bouncing around, yelling and refusing to go into his room. He shouted words to [the] effect of " I don't want to go into my room now ". Detainee JB then pushed off the back wall and attempted to get past me. As he attempted to get past me I restrained him using the techniques I was taught in training. The restraint involved me grabbing Detainee JB from behind with my arms around his arms and shoulders. Detainee JB attempted to struggle out from the hold. He was yelling and kicked at the walls. As I held Detainee JB Youth Officer Graham Saddler came up the hallway. I asked him to open the door… At this stage Detainee JB stopped struggling. Youth Officer Saddler opened the door and I placed Detainee JB in his room. Detainee JB did not offer any further resistance. Youth Officer Saddler and myself returned to the rec. area… 49 During the hearing, YO Adams agreed that, compared to himself, JB was not very big in stature and that probably meant that his arms had gone around JB's shoulders and chest area. He denied that he had JB in a headlock. He contended that YO Saddler had witnessed the restraint. 50 He confirmed his statement that he and JB were only mucking around. He agreed that he had not felt personally threatened nor had he considered it to be a threatening situation. However, he pointed out that it could have developed into one had JB been allowed to go back into the recreation room. YO Adams pointed out that the first occasion he came across JB after that incident was in the kitchen area. JB had approached him and apologised indicating that he was now aware that the Applicant was mucking around with him. 51 During cross-examination, YO Adams insisted that the denials he made during the Interview had been a reference to the degree of force he had used. He was adamant that it was minimal. He also insisted that JB had accepted his fate and was neither kicking nor banging nor yelling when he and YO Saddler left him in his cabin, "he was not agitated at all". 52 Later on during cross-examination, YO Adams admitted that when he grabbed JB from behind, he had kicked out for a couple of seconds and then stopped. 53 YO Adams clarified his earlier statement stating that YO Saddler was not with him at the time but had followed them down the corridor later. Yet Saddler's interview with Ms Gurp suggested otherwise. 54 The Applicant pointed out that he had remained in the unit until the end of his shift at 11 pm that evening and had not heard JB carrying on in the manner described by YO Saddler. 55 He denied the assertion that he had told untruths in order to escape the consequences of using force in a situation that did not require it. 56 He admitted that he had not heard what JB was saying to the other detainees that evening that would cause HG to become hostile towards him. However, he was aware that JB could be very annoying and one could not ignore the threatening behaviour of HG whom he described as "a very big koori kid, he's 18, 6'2" , he'd be 100 kilos….." with an imposing frame and "with a very violent record of assaults". He had witnessed HG staring aggressively at JB. 57 He agreed with the evidence of Ms Miegel that it was preferable to place the detainees in their cabins prior to the set bedtime than to write them up for a minor misbehaviour or confine them. 58 During re-examination, the Applicant stated that the Centre Incident Report he had completed with regard to the incident had been as detailed as he could have done in the circumstances having regard to the scant theoretical training and practical experience he had received in its completion over the period of his employment. 59 From his experience with working with a great deal of adolescent males, and as a former country footballer, the mark Ms Jomantas stated was on one side of JB's face was not consistent with the marks to be found on someone who had been placed in a headlock. One could expect to see marks on both sides of the face. 60 YO Adams pointed out that when JB came in to the Centre, he was still on remand and was subject to a lengthy control order. It had taken him a long time to settle in and to accept basic instructions. He had been trying too hard to become one of the boys, talking himself up, annoying other detainees, lying and so on, "He was always in someone's face". He recalled an occasion when JB nearly tripped over another Youth Officer who had been sitting with his feet out. When that Youth Officer lifted up his feet to avoid JB tripping over him, JB started screaming and yelling that he had been kicked. YO Adams had observed JB act up on every shift he had been on - all of his reactions were out of proportion with the actual situation. 61 In conclusion, the Applicant stated that the inherent risk to both he and JB as a result of their physical contact was, in his view, less damaging than the alternative of allowing JB to return to the recreation room and risk getting punched by HG. The Evidence of YO Strutt 62 The evidence of YO Strutt has been of no assistance in the determination of the issues in dispute. 63 In his version of the incident given in the Centre Incident Report on 25 May, 2004, he stated that at the time the Applicant and YO Saddler were putting JB into cabin 21, he was opening the door to Cabin 23 for HG. 64 In the record of Interview conducted on 19 August, 2005, YO Strutt stated that he was aware that JB was speaking loudly, as he was wont to do, and that YO Adams and YO Saddler were talking to him. He stated, however, that he had not paid any attention to what was being said. 65 Although the doors were approximately 10 metres apart, and the entire incident had occurred in the corridor, he had neither witnessed the alleged incident nor recalled any scuffles. Evidence of YO Saddler 66 The version of the incident given by YO Saddler in the Centre Incident Report on 23 May, 2004 was also very brief. It confirmed that JB's behaviour earlier that evening had been disruptive. JB decided he wanted to go to his cabin and later changed his mind. YO Saddler had opened the door to cabin 21 and "he [JB] was escorted to his room by SYW Steve Adams who placed both arms around his arms and put him in his room. Minimum force was used in this incident". 67 In the record of the Interview held on 27 August, 2004, YO Saddler's account of the incident was markedly different to the versions provided by YO Adams. 68 YO Saddler confirmed that JB had been loud and boisterous earlier that evening. He contended that when JB asked to go to his cabin at about 8.25 pm or 8.27 pm, both he and the Applicant had taken him down the corridor. YO Saddler had opened the door to cabin 21 when JB changed his mind. YO Adams, who had been silent through out that time, pointed out that it was almost 8.30 pm anyway and that JB had to go into his room. JB refused and "was escorted into his room by Senior Youth Worker Steven Adams with minimal force. He placed both arms around James's waist, or around his arms area, and placed him into his room. The door was then locked…". 69 Later during the interview, YO Saddler agreed that the Applicant had pinned JB's arm down as if in a bear hug when JB tried to push past him to go back to the recreation area. 70 He could not recall discussing the incident with Ms Jomantas later that evening. In his opinion, the force used by the Applicant would not have been capable of causing any injury. 71 Later during that interview, his memory was jogged and he could recall that JB was screaming, was very agitated and loud. He was complaining that the Applicant had grabbed him by the throat and nearly choked him. JB stated that he wanted the Applicant charged. 72 YO Saddler admitted that had he been in the place of the Applicant, he may have gone about things a bit differently. However, he had not interfered but allowed the Applicant to go about his job: Maybe I wouldn't have grabbed hold of JB, I – maybe I would've just talked to him and told him to go into his room, but…there was no vigour in his placement of JB in his room…I think maybe just talking to the boy, things could've been – might not have progressed as far as they did. 73 YO Saddler confirmed, in the statement sworn on 16 September, 2005, that he had cautioned JB earlier that evening to behave himself as he had been acting in a loud and boisterous manner. His account of the events of that evening was similar to the account he had given at the interview. He added that the restraint applied by the Applicant "was completely appropriate for a Youth Officer. He was just doing his job…." 74 He recalled during examination-in-chief that JB had been loud and boisterous on the evening of 23 May, 2004. He denied making the statements that were attributed to him in the statements of Ms Jomantas and YO Miegel. He stated categorically that "at no stage did I see Youth Worker Steve Adams grab JB around the head…." He, JB and the Applicant had walked down along the corridor together. JB had struggled and resisted from the time YO Adams grabbed him until he was placed in his room. He had continued to yell and be loud for about 5 minutes after he was locked in his room. 75 During cross-examination, YO Saddler provided personal information as to why his memory was more reliable during the hearing than it was twelve months previously. Evidence of YO Miegel 76 YO Ruth Miegel's account of the incident was very similar to that given by YO Strutt. 77 In her Centre Incident Report dated 23 May, 2004, she stated that she was in Cabin 22 conducting a property check. Despite the door to that cabin having been left wide open, all she was aware of was that a Youth Officer had walked past talking with a detainee. 78 However, during her Interview on 19 August, 2004, YO Miegel made a number of admissions. 79 She recalled that she had seen JB walk past the door ahead of YO Adams with YO Saddler trailing them. 80 She admitted that she knew something was happening but, as she was otherwise engaged, she did not believe her assistance was required and basically ignored it. 81 She admitted that she heard JB scream but had not given it a second thought. She had heard a thud in the hallway and assumed that he had bumped into something. She was aware that he had a low tolerance to pain and it was his nature to scream very loudly whenever he was physically hurt, not matter how slightly. 82 She confirmed that, on the day following the incident, she had inquired of YO Saddler as to what had happened. She recalled that he said to her words to the effect that YO Adams had JB in a headlock and used far too much force and held him too tightly. 83 She had seen JB the following day but had not observed any injuries. She had overheard him telling another Youth Officer that YO Adams had been a bit hard/rough with him. 84 In her opinion, it was better to threaten to lock up a detainee early than to write him up. In other words, it was preferable to negotiate with the detainee rather than work against him. 85 YO Miegel also confirmed that staff were conscious of the need to monitor JB's behaviour which would often antagonise the other detainees in the unit and put at risk his own safety. Evidence of YO Ladbury 86 In both the Centre Incident Report dated 24 May and in the record of Interview dated 19 August, 2004, YO Tina Ladbury stated that she had a conversation with JB on 24 May, 2004 during which he mentioned to her that YO Adams had been a bit rough with him and queried her as to how he could go about making a claim for monetary compensation as he expected to receive a good pay-out from it. He had not complained to her about any injuries and she had not observed any injuries on him. Evidence of JB 87 JB had participated in the Interviews conducted on 19 August, 2004 but was not called to give evidence in these proceedings. 88 In the transcription of the taped record of Interview, JB provided the following version of the incident that occurred with YO Adams: Well, I was just mucking around - staff was mucking around with a couple of detainees and I decided I might go to my room and come back out .... and make a cup of coffee. Well, then I - then he started mucking around me, like, pushing - pushing me around and I was pushing him around and ... he sort of put me in a headlock and just chipped the back of me tooth....But .. I don't really want to make a complaint now as.. everything's fine... he told me he was mucking around and ... I didn't know he was mucking around, but ... we're getting on all right together now.. 89 JB went on to demonstrate at that interview the headlock YO Adams had him in adding: Not sort of hard...just enough [force] to break me top tooth - put a filling in that big tooth there...She [the nurse] said it was all fine.... 90 JB stated that at the time he made the complaint, he had wanted YO Adams charged but denied that he had ever said anything about claiming compensation. 91 JB denied that anyone had approached him after the incident and tried to tell him that nothing had happened or that anyone had approached him to discuss the incident. SUBMISSIONS Submission on behalf of the Applicant 92 It was pointed out, on behalf of the Applicant, that the established bases for applying the principle of the balance of probabilities within the New South Wales system was set out by His Honour, Walton VP, in Starr v Commissioner of Police [2001] NSWIRComm 226. 93 YO Adams had observed detainee HG making threatening gestures at JB. HG was undisputedly a "stand over merchant" from whom other detainees required protection. 94 JB had been typically annoying and frustrating on the evening in question and when he asked to go to his cabin, the applicant walked him down and took the opportunity to advise him of the effect his misbehaviour was having on the other detainees and to inform him that he would not be allowed back out of his cabin that evening. 95 They were at the door of JB's cabin when he became non-compliant and pushed off the back door of the unit to obtain enough momentum to push past to the right of the Applicant in an effort to return to the recreation room. 96 YO Adams restrained JB by using what he termed a "departmental hold" on him placing his arms around JB's mid-section. The sudden arrest of JB's dash caused them both to twist to the left where, more that likely, owing to the narrowness of the corridor, there would have been contact made by JB with the wall of the corridor. 97 The Applicant gave evidence that he had received "fairly limited" training on restricting detainees - one day out of a total of four days' of training which had been dedicated to behavioural issues. There has not been on-going training in that regard since his induction. 98 Nevertheless, he attempted to restrain JB in such a manner that no harm would befall him and only for as long as was necessary to secure him safely in his cabin. 99 The Applicant's evidence was that JB's struggles ceased when he was placed in his room. YO Adams returned to the recreation area and had no further contact with JB for the remainder of that shift. 100 It was pointed out that, to the extent that YO Saddler could recall the events of that evening, his evidence supported that of the Applicant. 101 It was pointed out that Ms Jomantas gave evidence that she heard, what she believed to be, air being expelled from someone and movement in the corridor. She had gone on to narrate what her movements were thereafter. That narration clearly confirmed that there was nothing in her behaviour that would suggest that a serious incident was occurring. Mr. Wilson questioned the appropriateness of Ms Jomantas' absence from the unit and the reason thereof. He invited the Commission to consider what contribution her absence may have had to the occurrence of the incident. 102 It was further pointed out that the evidence of YO Miegel was similar in nature to that of Ms Jomantas and therefore was of limited assistance to the Commission. She had not witnessed the incident but had heard what sounded like a scream or screech from JB. It had not caused her any alarm nor did she have any concern that a serious incident was occurring as it was characteristic behaviour from JB. 103 However, both Ms Jomantas and YO Miegel gave evidence that YO Saddler told them after the incident that YO Adams had used excessive force and had restrained JB using a headlock. YO Saddler vehemently denied that. 104 It was submitted that very little weight can attach to that part of the evidence of Ms Jomantas and YO Miegel because several possible factual conclusions are available to be drawn from that evidence: # Either it is possible that YO Saddler did indeed see YO Adams use excessive force; or # It is possible also that YO Saddler is correct when he continues to maintain that he did not use those words; or # It is possible that YO Saddler told them what was being alleged by JB. The evidence indicated that YO Saddler had gone back to the detainee's room and heard him make such allegations. It was possible that the witnesses may have misunderstood YO Saddler when narrating to them what JB was alleging. 105 It was contended that the evidence of Ms Jomantas and YO Miegel may be described as "hearsay", "second-hand accounts" and "indirect evidence" and therefore ought to be afforded a weighting less than the contradicting and direct evidence of YO Saddler and YO Adams. 106 It was pointed out that the only evidence of an injury to the detainee was the observation by Ms Jomantas that there was a red mark on his left cheek. Both Adams and Saddler, experienced Youth Officers, gave evidence that a headlock would leave red markings on the head and face of a victim. The red mark on one cheek and absence of any red mark along the jaw line and the back of the head was consistent with the theory that JB bumped into the wall as he and YO Adams spun around. 107 The evidence of Ms Jomantas, in relation to her physical inspection of JB's tooth, does not support the contentions of the detainee that his tooth had been chipped as a result of the alleged headlock. Rather, her evidence supported the contention of the Applicant as to the minimal use of force applied. 108 It was submitted that the first hand, direct evidence given by the Applicant to the Commission was entirely consistent with the statement he gave to Ms Van Gurp in that he intended to emphasise that minimal force was used in restraining JB. Therefore, the allegation that the Applicant was unwilling to complete a Use of Force form was a peripheral issue for the Commission to consider as it was of limited assistance in determining what occurred between YO Adams and JB. 109 What was of primary concern, it was submitted, was the appropriate time for the use of force. That issue, it was contended, was not clear cut. It was pointed out that it had been acknowledged by all the witnesses in the proceedings that use of force was a last resort and it must be minimal force. 110 Mr. Eggleton gave evidence on the Department's use of force policy. He pointed out that if use of force is planned, then approval had to be obtained from the Unit Manager. However, unauthorised use of force is acceptable where it is used in emergency situations such as to prevent an escape or riot or to protect a detainee or staff member from harm. 111 The two senior staff members who gave evidence in the proceedings had both agreed that it depended on the individual circumstances and therefore a discretion was given to staff in such circumstances. Mr. Eggleton further gave evidence that, on occasion, a YO needs to make ".... an immediate decision, ..... a decision in a fraction of a second...". 112 It was not disputed that: * there is potential for abuse amongst the detainees; * an example of a legitimate use of force is force that is used to prevent an assault on a detainee by other detainees; * early bed times are used as a means of addressing minor behavioural issues in substitute for segregation/confinement; * there was a threat to JB from HG; or * HG stood over and bullied JB; and * supervisory staff had to take appropriate measures to protect JB from such behaviour. 113 It was also not disputed that JB's behaviour was erratic, inconsistent and irrational. 114 It was argued that JB had been antagonising other detainees on that evening. He had given a clear indication that he intended to "act up" and it was imperative that he be separated from the other detainees, particularly HG. It was submitted that YO Adams would have been negligent if JB had been allowed to return to the recreation room, put himself in a very dangerous situation and been injured. In such circumstances, JB may have been able to pursue a compensation claim. 115 Supervisors of YO Adams, who gave evidence in the proceedings, lauded his ability to work with young people, particularly those with behavioural problems, and his ability to diffuse situations without resort to force. The clear message gleaned from the evidence of Messrs. Eggleton and Whelan was that the Applicant is the type of person who has the best interests of young people at heart; will apply every means available to him to resolve issues without the use of force; and will only apply force when it is absolutely necessary. 116 It was concluded that the incident attributed to YO Adams was completely out of character. 117 The Commission was invited to draw a comparison between the characters of YO Adams and that of detainee JB. It was submitted that such comparison would indicate that they stood poles apart. The criminal record of JB confirmed that he was an acknowledged liar to authorities and the evidence of Ms Ladbury also confirmed that his complaint had been motivated by an expectation that he could claim monetary compensation. It was suggested that the ability to make such a claim was a clear motivation to lie. 118 The Commission was also asked to note the contents of the numerous incident reports which provided a clear indication of JB's history of misbehaviour within the Centre. 119 It was further pointed out that a study of the Centre's Incident Reports and Use of Force Reports would establish that it was a common theme that only basic information is recorded on them. Therefore, it would be erroneous to conclude that YO Adams has been untruthful merely because his reports lacked sufficient detail. 120 It was concluded that the Applicant ought to be reinstated to his former position and monetary compensation awarded for the difference between what he would have earned had his employment not been terminated and his earnings during the intervening period between his dismissal and reinstatement. Submission on behalf of the Respondent 121 It was submitted on behalf of the Respondent, that JB's record of interview was indicative of a young person who bore no malice against the Applicant and had the hallmarks of someone who was vulnerable. 122 The Respondent owed a duty of care to the detainees and was required to ensure the health and safety of detainees in its custody. 123 It was submitted that the purpose of YO Saddler walking back down to JB's cabin later that evening was to make it clear to him that he did not have a witness in YO Saddler should he decide to take the matter further. 124 As to the issue of minimal training in the use of force, it was queried how much training would be required to instil in all Officers the instruction that use of force was to be a last resort. 125 It was conceded that JB was an annoying young man. Nevertheless, it was common ground between the parties that it was JB who had initiated his own removal from the recreation room. Having instigated that removal personally, why would the Applicant consider it unsafe for JB to return to that area? 126 The question needed to be asked as to why HG had not been removed from the recreation room if he was making threatening gestures at JB. 127 It was contended that the Applicant had made a serious error of judgment in that he had created a situation rather than diffused one. 128 It was pointed out that if a detainee makes a complaint that an assault has occurred, then it must be reported to the Commission for Children and Young People. In order for that not to occur, the Respondent must come to the conclusion that it is either a frivolous or vexatious complaint by that detainee and that there was no evidence to support it or that the incident did not occur. 129 Attention was drawn to the fact that the Applicant had provided conflicting evidence from the other witnesses - firstly, as to the actual incident and the reaction of JB when he was restrained by the Applicant; secondly, as to whether YO Sadder accompanied them down the corridor to JB's cabin or followed them shortly after; and thirdly, as to whether JB had been as quiet as a mouse after he had been deposited in his cabin or was yelling and carrying on as evidenced by YO Saddler and Ms Jomantas. 130 It was submitted that it was inconceivable to suggest that Ms Jomantas misunderstood YO Saddler when he verbally reported the incident to her a few minutes after it occurred and then to suggest that YO Saddler's memory at the time of the hearing was better than it was during and immediately after the incident. There was no medical evidence before the Commission to support that contention on the part of YO Saddler. 131 It was suggested that it was YO Adams who put the words into JB's mouth that what they were doing was "mucking around" in an effort to diffuse the situation. 132 It was pointed out that the Respondent was not suggesting that there was any malice on the part of the Applicant. It was merely contending that there had been an error of judgement on the part of the Applicant resulting in an inappropriate use of force. That situation had been further compounded by his attempts to cover up his errors by the telling of untruths. 133 It was concluded that it would be inappropriate to re-instate the Applicant to his former position. 134 However, if the Commission was to make a finding that there was no reportable conduct on the part of the Applicant, then the Respondent would be required to withdraw its notification to the CCYP. CONSIDERATION The Investigation Report 135 All persons to be interviewed are required to have 24 hours' notice of such interview and of the ability to have a support person in attendance during the interview. 136 It is noted that the Investigation Officer, Katherine Van Gurp, sent a bundle of letters to the Centre 10 days prior to the scheduled interview for distribution to the persons concerned. 137 In addition, Ms Van Gurp emailed both the Centre Manager, Chris Simpson, and the Assistant Manager advising them that the letters were in the post and informing them of the schedule of interviews to be held on 19 August, 2004. 138 On 18 August, 2004, Ms Van Gurp took the added precaution of contacting Mr. Simpson to confirm her attendance at the Centre the following day. According to her report, Mr. Simpson had assured her that all the letters had been distributed. 139 Upon her arrival at the Centre on 19 August, Mr. Simpson advised her that the letters had not been distributed. Therefore, none of the staff concerned had received notice of the Interview and therefore had not made arrangements for a support person to be in attendance. 140 Nevertheless, to their credit, they had all agreed to participate in the interviews and none had insisted on having a support person in attendance. Being the last person on the list to be interviewed, YO Adams had only 3 hours and 15 minutes notice of the interview. He was also on duty at the Centre during that time. I do not accept that it is to be regarded as "some notice", particularly when one considers the location of the facility. 141 The only exception to the above was YO Saddler. The situation had been rectified prior to his interview on 27 August, 2004. 142 No acceptable explanation has been provided for this careless omission, particularly when an assurance had been given to Ms Van Gurp that all letters had been distributed. It is a most unfortunate set of circumstances. 143 The gravity of the situation may cause a person in the Applicant's position to agree to participate in the Interview on such short notice for either of two reasons. Firstly, as a display of both his alleged innocence and as a demonstration of the fact that he believes that he has nothing to hide. Alternatively, he may not appreciate the gravity of the situation he is in, and the likely consequences a negative outcome from such an investigation may have on his continued employment. 144 In any event, the Applicant had been deprived of an opportunity to consult with his Union and/or legal advisers about his participation in an investigation process, the outcome of which may lead, and has ultimately led, to: # his dismissal; # a report to the Commission for Children and Young People; # a notification being forwarded to the Child Protection Team, NSW Ombudsman, pursuant to the Ombudsman Amendment (Child Protection and Community Services) Act 1998. 145 Having said that, Ms Van Gurp is to be commended for the professional manner in which those interviews were conducted. The interviews were to the point, thorough and fair in the circumstances. JB's Record of Behaviour 146 Tendered in the proceedings was a detailed document of JB's behaviour record. The record set out assault details on law enforcement officers and other detainees; incidents of fighting with other detainees within the Centre; extremely rude and abusive behaviour towards other detainees and both male and female youth officers; and many instances when he had been segregated from other detainees as a result of his misbehaviour or threat of self-harm. In fact, hardly a day went by without a record being made about his behaviour at the facility. 147 Of particular note, is the fact that the incidents involved many of the other Youth Officers and included Ms Jomantas. 148 Also of particular note is an incident reported on 24 April, 2004. The reporting officer, C. Downing, recorded that: Whilst in the secure room JB punched and forced his body against the secure room door. JB stated that he wanted to sue staff and bash U/O Ritchie calling him a c....t and saying that he was going to drop him. JB said that he would injure himself and blame staff for his injuries. 149 That record provides a clear indication of the lengths to which that detainee would be prepared to go in order to harm a Youth Officer in their employment. Use of Force 150 I accept the evidence of Mr. Eggleton that there are occasions when counselling of a detainee about imminent disciplinary action is not possible because immediate action is necessary to restrain that detainee. JB kicked off the back wall and launched himself at the Applicant. I consider that such unexpected reaction by JB would fall into that category. 151 I also accept Mr. Eggleton's evidence, gleaned from his experience having been faced with such a situation on many occasions, that it would be extremely difficult to stop JB by both Officers merely blocking his access back to the recreation room with their bodies. 152 The thud heard by YO Miegel and the expulsion of air heard by Ms Jomantas fall neatly and squarely into the plausible explanation provided by Mr. Wilson on behalf of the Applicant. 153 There was no medical evidence provided regarding JB's chipped tooth nor any collaboration of his allegation that his tooth had been chipped during the incident. 154 I accept the contention that had JB been held in a headlock, he would have displayed signs of redness on more than just his left cheek. 155 In addition, it cannot be ruled out that the redness in his left cheek may have been caused by his emotional state - his anger and fury at what he would have considered to be a "con" job, using his request to go to his cabin to lock him up for the rest of the night. 156 Nor can the possibility be ruled out that the redness to the cheek may have been self-inflicted in the time lapse between when the Applicant returned to the recreation room and the time Ms Jomantas went to see JB, particularly considering his comments in the report dated 24 April, 2004. 157 If Youth Officers are to have any sort of credibility amongst the detainees and be able to maintain discipline, they have to be seen to have the support of senior management. Despite the fact that the Applicant may have exercised an error of judgment on that evening, or that there was a lack of co-ordination amongst the staff in relation to the issue, the Applicant gave JB an instruction based on his belief that JB was at risk of being set upon by HG if he continued his present behaviour. 158 The manner in which JB reacted left no room for discussion nor time for permission to be obtained to use force. The Applicant had no option but to act to restrain JB. I have no doubt that the incident occurred in the manner described by Mr. Wilson. I accept the evidence of Mr. Eggleton that there would have been no other way to stop JB in the circumstances other than to physically arrest his movement past both Officers to the recreation room. I find that the Applicant's use of force against JB was not only necessary but grossly exaggerated by JB. The Dismissal 159 Having said all that, however, it cannot be denied that the Applicant did exercise an error of judgment in the handling of the matter. 160 It was not disputed that JB was agitating other detainees, and in particular HG, during the course of the evening. It was also not disputed that JB had been warned earlier that evening by YO Saddler about his behaviour. 161 It was also contended that HG had been making threatening gestures at JB as a result of the latter's behaviour. 162 Nevertheless, no effort was made to remove either JB or HG from the equation until, at the instigation of JB, he was escorted to his cabin. Ms Jomantas could neither recall nor deny a conversation she allegedly had with the Applicant during which she was attributed with instructing that "JB be put in confinement or segregation if he put a foot out of place". The entire incident happened in the space of approximately five minutes during which she had gone out of the Unit to purchase a can of Coke. 163 Any of the Officers, including the Unit Co-Ordinator, could have taken some action to separate JB and HG. Given that it was very close to bed-time, some action could have been taken to occupy either of those detainees for a few minutes. In any event, the evidence was that as steps were being taken to lock JB up for the night in his cabin, YO Strutt was opening up the door to Cabin 23 for HG. Had there been any co-ordination between the Officers, then it would have been apparent that no preventative action would have been necessary in relation to JB. 164 The Applicant had been provided with two opportunities, on 08 December, 2004 and again on 18 February, 2005, to show cause as to why no action should be taken to comply with statutory requirements to notify of his behaviour in view of the evidence gleaned from the interviews. He chose not to respond. The Director-General had no option but to write to him on 29 March, 2005 advising of his termination and the fact that notifications would be made pursuant to the Children and Young People Act 1998 and the Ombudsman Act 1974. 165 There was a great deal of inconsistency in the different versions of the event provided by the Applicant. There was also a denial that force was used on JB. The motive for the Applicant's attempts to downplay the seriousness of the situation is obvious - his whole future as a Youth Worker was at stake. Unfortunately, however, the inconsistencies in his versions highlighted the possibility that inappropriate use of force had been applied. I accept that the Applicant would not have voluntarily completed the use of force form as a matter or course had the incident not escalated to the point where he had been directed to do so. The behaviour described above cannot be sustained. DECISION 166 The dismissal was not harsh, unjust nor unreasonable in the circumstances. 167 However, I find that there is no reportable conduct on the part of Mr. Stephen John Adams and the Respondent is required to advise both the Commission for Children and Young People and the Ombudsman of that finding. I. Tabbaa COMMISSIONER 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.