Industrial Relations Commission of New South Wales CITATION: PSA and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Lloyd Kerr) and Director of PE by her Agent the Director-General of the Department of Juvenile Justice [2009] NSWIRComm 1034 APPLICANT Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales PARTIES: (on behalf of Lloyd Kerr) RESPONDENT Director of Public Employment by her Agent the Director-General of the Department of Juvenile Justice FILE NUMBER(S): 1232 of 2008 CORAM: Stanton C CATCHWORDS: Application for relief from unfair dismissal - alleged assault - investigation procedures - onus of proof - misconduct occurred as alleged - Category One Notification to Commission for Children and Young People - Statutory Scheme considered - examination of CCTV footage - compliance with applicable laws, regulations and departmental policies - was misconduct found - was disciplinary action taken by the Director General harsh, unjust or unreasonable HELD: Finding of misconduct - disciplinary action taken by Director General was not harsh, unjust or unreasonable - application dismissed Children (Detention Centres) Act 1987 Children (Detention Centres) Regulation 2005 Children and Young Persons (Care and Protection) Act 1998 LEGISLATION CITED: Commission for Children and Young People Act 1998 Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Ombudsman Act 1974 Public Sector Employment and Management Act 2002 AWU (NSW) (on behalf of Stojanovski) v Bluescope Steel (AIS) Pty Ltd (2004) 137 IR 211 Bankstown City Council v Paris (1999) 100 IR 363 Briginshaw v Briginshaw (1938) 60 CLR 336 Burge v BHP Steel Pty Limited (2001) 105 IR 325 Byrne v Australian Airlines (1994) 47 FCR 300 Byrne v Australian Airlines Limited (1995) 185 CLR 410 Corbeski v Bluescope Steel (AIS) Pty Limited [2006] NSWIRComm 1170 Director of Public Employment v Public Service and Professional Officers' Association Amalgamated Union of NSW (on behalf of Brown) [2008] NSWIRComm 221 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 Franklins Ltd v Webb (1996) 72 IR 257 Lawrence v Catholic Education Office, Sydney [2002] NSWIRComm 115 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR CASES CITED: New South Wales Fire Brigade Employees' Union (on behalf of Natoli) v New South Wales Fire Brigades [2005] NSWIRComm 440 New South Wales Nurses' Association (on behalf of Colin Prior) v South Eastern Sydney & Illawarra Area Health Service [2007] NSWIRComm 164 NSW Public Service Professional Officers' Association v Forestry Commission (1990) 39 IR 46 North v Television Corporation Limited (1976) 11 ALR 599 Outboard World Pty Ltd (t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 165 Pacific Power v Crump (1993) 48 IR 296 Pastrycooks Employees, Biscuit Makers & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) 1990 35 IR 70 Public Service and Professional Officers' Association v Forestry Commission (1990) 39 IR 46 Sexton v Public Employment Office by its Agent the Director General of the Department of Juvenile Justice [2005] NSWIRComm 1172 Valance v The Queen (1961) 108 CLR 56 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Wells v Commissioner of Police (2000) 100 IR 106 WorkCover Authority of New South Wales v Industrial Galvanisers Corporation (2002) 119 IR 306 HEARING DATES: 16/2/09, 17/2/09, 3/4/09 DATE OF JUDGMENT: 13 July 2009 APPLICANT Mr M Gibian of counsel LEGAL REPRESENTATIVES: RESPONDENT Mr J Murphy of counsel DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : STANTON C Monday, 13 July 2009 Matter No. IRC 1232 of 2008 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Lloyd Kerr) and Director of Public Employment by her 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 Lloyd Kerr, re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION 1 The applicant in this matter, Mr Lloyd Kerr, was dismissed from his position of youth officer engaged at the Frank Baxter Juvenile Justice Centre ('the Baxter Centre') by the Department of Juvenile Justice ('the Department') on 9 July 2008. 2 The Department supervises and cares for young offenders in the community and in detention centres. A youth officer is responsible for providing casework services and supervision to young people in a custodial setting. 3 Juvenile Justice Centres must operate in accordance with the legal requirements imposed by the Children (Detention Centres) Act 1987. 4 The provisions of the Public Sector Employment and Management Act 2002 govern the applicant's employment. 5 The applicant's dismissal followed an investigation into an allegation that he may have engaged in misconduct within the meaning of s43 of the Act. Shortly stated, the following misconduct was alleged to have occurred: On or about 6 February 2008 you assaulted detainee WW at Frank Baxter Juvenile Justice Centre. 6 The applicant was suspended from duty with pay effective on and from 7 February 2008. 7 This application was lodged on 30 July 2008 and was listed for conciliation and directions on 19 August. However, that date was vacated to 28 August 2008 at the request of the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ('the Association'). The Association sought to have the penalty imposed on the applicant overturned on the grounds that dismissal was harsh, unjust and unreasonable. 8 An Order regarding the use of detainee details in the course of these proceedings was also made on 28 August 2008. Detainees are identified by reference to pseudonym. The transcript was marked confidential. In view of the entrenched position of the parties, directions for arbitration were subsequently issued. 9 The matter was set down for programming on 3 November 2008 where it was agreed by Counsel that the matter should be set down for hearing on 16, 17 and 18 February 2009. For reasons related to security and the availability of the applicant, the matter was adjourned after the completion of evidence on 17 February to 3 April 2009 at Toronto Court House. 10 The primary remedy sought by the applicant was reinstatement to his former position of youth officer at the Baxter Centre and, in the event that application was unsuccessful, monetary compensation. 11 Two closed circuit television ('CCTV') cameras recorded the alleged assault and that footage, together with specific time dated print images formed part of the Department's evidence in these proceedings. Statutory scheme and background to dismissal 12 Section 43 of the Act defines misconduct in the following terms: (1) For the purposes of this Part, misconduct includes, but is not limited to, any of the following: (a) a contravention of any provision of this Act or the regulations, (b) performance of duties in such a manner as to justify the taking of disciplinary action, (c) taking any detrimental action (within the meaning of the Protected Disclosures Act 1994 ) against a person that is substantially in reprisal for the person making a protected disclosure within the meaning of that Act, (d) taking any action against another officer that is substantially in reprisal for an internal disclosure made by that officer. 13 Pursuant to s46 of the Act, the Director General is obliged to deal with allegations of misconduct made against the applicant in accordance with the statutory scheme. Section 46(1) requires the Director General to: a) decide to deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, or (b) decide that it is appropriate to take remedial action with respect to the officer. 14 In correspondence dated 12 February 2008, the then Director General advised the applicant of her decision to deal with the allegation as a disciplinary matter in accordance with s 46(1)(a) of the Act. She also advised the alleged conduct potentially fell within the definition of reportable conduct for the purposes of the Children and Young Persons (Care and Protection) Act 1998. The Director General appointed an independent investigator, Ms Wendy Klaassen, to conduct an investigation into the allegation and report her findings. Ms Klaassen subsequently interviewed the applicant on 27 February 2008. 15 Following the completion of the investigation by Ms Klaassen, the then Acting Director General wrote to the applicant on 1 May 2008 to advise he had formed the view that he had engaged in the misconduct as alleged: On or about 6 February 2008 you assaulted detainee WW at Frank Baxter Juvenile Justice Centre. 16 The Acting Director General provided the applicant with a copy of the investigation report and informed him that he was considering imposing disciplinary action as provided under s 42(1) of the Act: (1) In this Part: disciplinary action, in relation to an officer, means any one or more of the following: (a) dismissal from the Public Service, (b) directing the officer to resign, or to be allowed to resign, from the Public Service within a specified time, (c) if the officer is on probation - annulment of the officer's appointment, (d) except in the case of a senior executive officer - reduction of the officer's salary or demotion to a lower position in the Public Service, (e) the imposition of a fine, (f) a caution or reprimand. 17 The Acting Director General afforded the applicant an opportunity (a "show cause" meeting) to discuss the matter further with an Investigations Officer from the Professional Conduct Unit, the Unit Co-ordinator from the Baxter Centre and himself on 19 May 2008. A transcript of that meeting was attached to the applicant's first statement. Shortly thereafter, the applicant wrote to the Acting Director General and reinforced the defence he had put on 19 May. In relation to the specific incident involving WW, he stated his actions "were irresponsible and stupid". He was also concerned that WW was an influential detainee who had influenced the accounts of the incident given to Ms Klaassen by other detainees during their respective interviews with her. 18 The decision to terminate the applicant and report his conduct as a Category One offence in accordance with s 39 of the Commission for Children and Young Peoples Act 1998 was set out in correspondence from the then Acting Director General dated 9 July 2008. Reportable conduct for the purposes of the Act is defined in s 33, Definitions: 33 Definitions (1) In this Part: … "reportable conduct" means: (a) … (b) any assault, ill-treatment or neglect of a child, or (c) any behaviour that causes psychological harm to a child, whether or not, in any case, with the consent of the child. The Applicant's Evidence 19 In his first statement filed on 17 September 2008, the applicant deposed he had worked for the Department for some 14 years. In his written evidence, the applicant set out certain personal details including the fact that on 5 February 2008, his daughter was involved in a car accident which had created tension between his former wife and himself. However, these issues were not pressed in evidence. 20 The applicant deposed that on 6 February 2008 he was rostered to work from 6.00am to 2.00pm as an escort for the Bouddhi Unit, one of eight Units at the Baxter Centre. The Bouddhi Unit is one of two units designated as induction units for new detainees and those who exhibit troublesome or problematic behaviour. He said an escort was responsible for supervising detainees who were required to be moved within the Centre. At other times, youth officers provide additional supervision within the Centre. 21 The applicant deposed that at approximately 1.00pm he was supervising detainees in the TV room of the Bouddhi Unit when detainee WW approached him. An incident occurred between the applicant and WW. The applicant summarised the nature of the incident as follows: On the day in question, I came out into the TV room after lunch. As I entered the room, WW approached me. As a (sic) sat down, WW was obstructing my view of the other detainees who I was watching. WW was joking around shadow sparring in front of me. All I wanted to do was maintain supervision in the area. I asked WW to move away several times to give me some personal space so I could see the other detainees. On one occasion when he was close to me I said words to the effect of: " WW can you move away ". I also said words to the effect of: " Give me some personal space ". Later I raised my leg to try and establish an area of space between me and him, with an aim to obtaining greater vision of the other detainees. At no time did my leg make contact with WW. I certainly did not intend to make any contact with WW, let alone hurt him. WW then started acting out as if I had made contact in the region of his groin. He didn't stipulate where. In my view he did not appear to be in pain but was acting out because of fear of losing face with the other detainees. 22 Following the incident and prior to the end of his shift, the applicant deposed another youth officer informed him that WW had been removed from the area immediately following the incident because "he had come at me with a broom". He also deposed he visited Mr Paul Hockley, the Unit Manager at the completion of his shift to establish what had happened to WW. The applicant deposed a conversation with Mr Hockley took place with words to the following effect: Hockley: What happened? Applicant: I was just sitting in the TV room. WW was in my face and I threw up my leg to get some personal space. Hockley: WW says that you got him in the nuts. Did you? Applicant: No. If WW wants an apology for putting him on show, that is what I am willing to do. Hockley: No. You can't talk to him. Applicant: Do you want me to make a report? Hockley: No, just go home. 23 The applicant deposed that at no time did he assault detainee WW on 6 February 2008 "as alleged or at all". He also denied saying words to the effect "Do you want your balls where your mouth is?" to WW immediately prior to the alleged incident. 24 At or about 7.00pm on 6 February 2008, the applicant stated Mr Corey Corgan, second in charge of the Baxter Centre, phoned to inform him that he was suspended immediately and was required to attend the Centre the following day to prepare a report. 25 On 7 February 2008, the applicant filed the following Internal Communication Report: While supervising the Bouddhi Unit in the TV Lounge Room after lunch, detainee WW approached me whilst I was sitting down. Detainee WW and myself exchanged in normal friendly conversation. Detainee WW then began to act out and obstruct the view of several other detainees who I was watching. At this point in time I asked detainee WW to move away. Detainee WW continued to place himself in front of me acting out in front of his peers. I again asked detainee WW to move in which he thought I was joking. I then explained to detainee WW that he was getting into my personal space. At this point I flung my right leg out as if to say go away also stating this point. This action was only to establish an area of space between us. I believe at this time no contact was made with detainee WW. Detainee WW stated that I had made contact to his groin area. Detainee WW then acted out as if this had happened hunching over then sitting down on the carpeted area to my rights. At no time to this point did I believe that the stated event had happened. I then offered my hand to detainee WW to help him out. Still not knowing if he were serious or not. Detainee WW then stood up continuing to act out by punching the staff office window. Detainee WW then left the TV lounge area as viewed by staff not knowing what had happened only that detainee WW appeared upset. Unbeknown to me at this stage he was spoken to by other staff in which detainee WW explained his side to the incident. Also unbeknown to me detainee WW was removed from the unit due to detainee WW becoming quite upset. During the whole incident I remained seated only leaving the area to continue my duties as an escort. At no time if contact was made was there any intent nor malice to hurt detainee WW. Even extending an apology to detainee WW if the incident happened as detainee WW stated. Prior to the incident happening I have done 4 morning shifts in the Bouddhi Unit. Three as escort and one as a youth officer. At no time during these shifts did I have any issues with the Bouddhi Unit, running of the program nor the detainees including detainee WW who I felt I had a fairly good rapport with. Noticeably I found detainee WW to be a very touchy person, especially with staff. At times doing this report I am very sorry and remorseful. For my actions due to the incident being totally accidental during my period at JJ, I have never had to deal with something like this that has made me feel so uneasy inside. A copy of this Report was annexed to the applicant's first statement. 26 With reference to the "show cause" interview conducted on 19 May before the Acting Director General, an Investigations Officer from the Public Conduct Unit and the Unit Co-ordinator from the Baxter Centre, the applicant stated he had reflected on the transcript of the interview and in reference to that transcript, he stated the following: When I was referring to being reckless I was reflecting the comments of Wendy Klaassen in her report. It was probably silly to throw out my leg in the manner that I did, but I did not intend to make any contact with WW and do not believe I made any contact. There was no malice involved and I did not intend to harm WW in any way. 27 The applicant deposed that following his termination he was ineligible for employment involving children because of a Category One notification made pursuant to the Commission for Children and Young People Act. He was also ineligible for Centrelink payments as his long service leave was paid out upon termination. 28 The applicant contended the allegations made against him were completely out of character and, in that regard, a number of character references were annexed to his statement. He also deposed he had never been disciplined for excessive use of force or for reasons related to his conduct. 29 In a second statement filed on 8 January 2009, the applicant set out a reply to the affidavit of Mr Steven Wilson, Baxter Centre Manager, filed on 11 December 2009. With reference to Mr Wilson's statement that he told his youth officers not to engage in any "horseplay" with detainees, the applicant denied Mr Wilson had personally informed him not to engage in such practices and, in his experience, "horseplay" occurred on a daily basis. 30 With reference to Mr Wilson's statement concerning the CCTV footage of the TV room taken at 12.55.03pm where he contends the applicant pushed WW before he sat down, the applicant stated immediately prior to that image he was grabbed by WW and he had moved his hands upwards and away from WW to release that grip. He further stated that as he sat down he did not push WW. With reference to Mr Wilson's statement that if the applicant felt WW was behaving inappropriately, he should have verbally warned the detainee to step away from him or moved away from the detainee himself, or call another youth officer for assistance, the applicant confirmed he did speak to WW in the terms set out in the Internal Communication Report filed on 7 February 2008. 31 The applicant referred to Mr Wilson's statement that images taken after 12.55.06pm showed the applicant is sitting down, WW is standing and he and the applicant appear to be speaking. Mr Wilson had stated that in any genuine situation of conflict with a detainee, a youth officer should not be sitting down as they placed themselves at greater risk by being less able to deal with an assault. In that regard, the applicant contended he had not been told or trained about that greater risk. He further contended that at the time he did not consider he was in a genuine situation of conflict. Rather, it was a situation of the detainee being in his personal space. 32 With reference to Mr Wilson's statement that an image taken at 12.55.15pm showed the applicant kicking detainee WW in the groin area, the applicant again denied that he kicked WW and in that regard relied upon his first statement. In relation to Mr Wilson's statement that an image taken at 12.55.29pm showed WW rolling around on the floor and appearing to be in pain from the kick, the applicant also relied upon the defence set out in his first statement. Similarly, he relied upon the material set out in his first statement to defend the contention and opinion of Mr Wilson that in both pushing WW and kicking him in the groin, the applicant had used unlawful force on the detainee and had also breached the Department's Code of Conduct, particularly the expectations of staff set out under the headings "Professionalism", "Responsibility" and "Inappropriate Behaviours". 33 In relation to Mr Wilson's stated opinion that the applicant's actions in both pushing WW and kicking him in the groin amounted to physical assault and a breach of the Department's Client Protection Policy, the applicant again denied that he had kicked WW and reiterated his earlier evidence that he was grabbed by the detainee as he entered the TV room and he moved his hands upwards away from WW to release that grip. 34 With reference to Mr Wilson's statement and annexure "I", the Department's "Reactive Intervention - Use of Force" Procedure Policy annotated "Draft Without Prejudice November 2007/Pilot", the applicant stated he had not seen that Policy prior to examining Mr Wilson's affidavit filed on 11 December 2008. 35 The applicant's second statement also contained a copy of a reference signed by Ms Ros O'Meley, Unit Manager, Frank Baxter Juvenile Justice Centre dated 23 October 2008. 36 In terms of mitigation, the applicant outlined the nature of work undertaken since his dismissal and stated he had earned approximately $5,997.00. 37 When questioned by Mr Gibian as to why he wished to return to his position, the applicant said that he had worked for 14 years without incident and had been trusted to undertake additional tasks because of his experience. He had also planned to retire in the position. Working with young people was very challenging, demanding and sometimes very emotional. He said there were aspects of the job that had helped him to understand detainee situations. He was able to assist those who were illiterate to write a letter to their parents or read to them letters from a girlfriend or parent. He said the work provided job satisfaction and he enjoyed helping detainees, despite the often volatile environment. 38 In cross examination, the applicant agreed with Mr Murphy that he had served 14 years as a youth officer and it was entirely unacceptable for a youth officer to assault a detainee. He was also aware of the situations where physical force was permissible. Mr Murphy referred the applicant to the Department's Client Protection Policy which was annexed to the affidavit of Mr Wilson filed on 11 December 2008, specifically the indicators of assault as set out below: 7. Indicators of physical assault Physical assault under common law principles, must include all three of the following elements: · it is an act committed on or towards a child, and · it involves either the application of force to a child or an act that causes a child to think that immediate force will be used on them, and · it is either hostile or reckless (a reckless act is one where a person would reasonably foresee the consequence of or likelihood of inflicting injury or fear, and ignores the risk). The applicant accepted that committing such an act on a detainee as described under the Indicators would be entirely unacceptable. 39 Mr Murphy referred the applicant to Mr Wilson's affidavit where he set out cl 50, Use of Force, of the Children Detention Centres Regulation 2005, which relevantly provides that a juvenile justice officer must not use force against any person in a detention centre except for certain specified purposes. He agreed that he was familiar with the Regulation as it was referred to within the Department's Use of Force form. He also agreed that force could not be used outside of these defined purposes. In relation to the first specified purpose, to "prevent a detainee from injuring himself or herself", the applicant agreed that the incident with WW involved no likelihood of the detainee injuring himself. 40 In relation to the second specified purpose, "to protect the officer or other persons from attack or harm", the applicant said he had felt threatened on the basis that WW "was in my personal space throwing punches, whether they be air punches or not, they were directed at me". The applicant agreed that during his interviews with Ms Klaassen and Mr Muir he had said that WW was "invading his personal space". When pressed whether he had felt physically threatened by WW's actions, he stated that although he had not previously said he felt physically threatened, he did "to the point where I asked him to move away..." 41 The applicant agreed that all other purposes specified under the provision where force could be used were not relevant to his particular circumstances. 42 The applicant agreed the handwritten report made at 7.00pm on 6 February 2008 and attached to his first statement did not state that he had felt threatened at any stage prior to the incident. In that regard, he emphasised that he had asked WW: ... to move away several times. I again asked him to move away, he thought I was joking. I explained that he was getting into my personal space and he failed to respond. At that point I flung my leg out ... as to say, go away. 43 When asked why he did not put his hands up and make a gesture to back off or move away, the applicant said detainees had a lot of trouble understanding clear and concise instructions, "so I'm assuming that's why I acted in that manner". 44 With reference to his record of interview with Ms Klaassen attached to his first statement, the applicant conceded WW may have been joking or "mucking around". He also agreed his statement to Ms Klaassen that "I asked WW several times to move away" was consistent with his earlier evidence given today. The applicant said that in stating during his interview with Ms Klaassen: ... because he was quite close to me and as I said, I was trying to watch the remaining area in the TV room, plus keep an eye on G across the room who was directly opposite me, he was obstructing my view he had not stated that he felt threatened by WW. In response to Mr Murphy , he replied "that was a personal feeling" and in hindsight, it was a relevant matter for him to tell Ms Klaassen. 45 Further, in relation to his statement to Ms Klaassen that "WW thought I was joking because he was joking with me", the applicant confirmed he did not state that he had felt threatened. Rather, he told Ms Klaassen that he wanted WW to move away because he was obstructing his view of the TV room. He said he had asked WW to give him back some personal space and move away several times. 46 In relation to the incident, the applicant could not clearly recall whether he said to Ms Klaassen, "I just threw my leg out" or "I just raised my leg". 47 Mr Murphy subsequently referred the applicant to his interview with Mr Muir which was attached to his first statement and he agreed he had stated "yes, I did throw my leg out and in understanding what I've done in the time that I've been off, yes, it was irrational and reckless". He subsequently agreed that he had said to Mr Muir that he "threw his leg out" and that in his interview with Ms Klaassen he had said, "(I) just raised my leg". He agreed there was a difference between "raising" and "throwing" your leg out and claimed that after viewing the CCTV footage, he had raised his leg. He further agreed that his leg was raised very quickly. However, he disagreed with the proposition that "depending on the speed of the action, raising one's leg quickly becomes a kick". The applicant was resolute that he did not make contact with WW's groin area and strongly maintained that he made no contact with any area of WW's body. In that regard, the following exchange between Mr Murphy and the applicant occurred: Q. Well, I'll give you that opportunity. If you go to page 4, this is a response that begins at the bottom of page 3. You start off that response by saying, "So I guess I'm trying to raise reasonable doubt". Then over the page 4, in the first complete paragraph you say, "So I suppose in defence of my actions of lashing out with my foot". Now, I want to suggest to you that lashing out with your foot is quite a different proposition than raising your leg. Would you accept that? A. Yes. Q. And I want to suggest to you that the term "lashing out" carries with it the connotation that you were lashing out with that intention to make contact. Do you accept that you used the term "lashing out" in that context? A. Not in that context, no. I accept your definition of it. Q. But you didn't mean it that way? A. I use a lot of words to describe what I did. Q. Now, when you came to prepare your statement for this proceeding, and that is at the beginning of your statement, go back to page 1, at paragraph 20 - do you see paragraph 20? A. Yes. Q. The first time you had an opportunity to put down on paper what you did, you used the term, "flung my leg out". But when you prepared this statement, you've used the term "later I raised my leg to try and establish an area of space"? A. That is correct. Q. See, I want to suggest to you that by using language like that, you're really trying to minimise the seriousness of what occurred. Do you understand what I'm putting to you? A. You're suggesting I'm trying to minimise it? Q. Yes. By using language such as "I raised my leg", you're trying to downplay the seriousness of what you did? A. There's been a lot of time passed since different types of interviews. I'd suggest I've used a lot of words to describe what I have been alleged to do. Q. And it's varied from "flung" to "lashed" to "raised"? A. Yes, they're described. Q. Now, you also know that part of the allegation or one of the particulars of the allegation that was raised against you was to the effect that you said before you did the action with your leg or your foot, you said to WW words to the effect, "Do you want your balls through your mouth". You know that was part of the allegation? A. That was alleged, yes. Q. And that was put to you by Ms Klaassen that WW had made that claim? A. He alleged that, yes. Q. And you know from reading the evidence that's been provided in these proceedings that other detainees who were present at the time say that they also heard you say words to that effect? A. That was transcripted (sic), yes. Q. Now, you'd accept that if in fact you said words like that to WW before you did what you did with your foot or your leg, then it wasn't an accidental act. Would you accept that as a matter of logic? A. It (sic) that was the case you're putting across, yes. Q. Because in that scenario, the person committing the act has foreshadowed what he or she is about to do. In other words, kick him in the testicles? A. If that's what you're suggesting, yes. 48 At this stage of the applicant's cross examination the CCTV footage was played. Whilst viewing the footage, Mr Murphy identified the position of WW on the screen and suggested to the applicant that WW appeared to "buckle over in pain". The applicant agreed with Mr Murphy and the CCTV footage was subsequently viewed frame by frame. The applicant denied Mr Murphy's account that the footage suggested that he did intentionally kick WW in the testicles. 49 Mr Murphy referred the applicant to his statement contained in the transcript of his interview with Mr Muir where he described his actions as "lashing out with my foot". In that regard the applicant said he had "used several words to describe the incident". He again denied that he made contact with WW's testicles and said Ms Klaassen had found that allegation inconclusive. He continued to deny that he had said the words "Do you want your balls through your mouth" to WW and stated that there was no audio on the CCTV footage and that "detainees are all over the place with that description of wording". He contended "WW also had the opportunity to collaborate a story after sharing a room with one of the witnesses". 50 In re-examination, Mr Gibian asked the applicant about his state of mind at the time the interview with Mr Muir took place and he responded by stating: I was very upset, very upset to the point I felt the opportunity being given to me to go to Mr Muir was an opportunity to explain to him circumstances prevailing leading up to it, around it and during it. I thought it was a chance that I had of redeeming myself basically. Evidence for the Respondent Detainee 'AB' 51 AB was a detainee at the Baxter Centre on 6 February 2008. On 3 March 2008 Ms Klaassen interviewed him and transcript of that interview was set out in an affidavit filed by Ms Nicole Christoph, an Employee Relations Officer with the Department, on 9 October 2008. 52 When shown the CCTV footage by Mr Murphy, AB was able to identify his position in the room at the time of the incident. In cross examination AB expressed some difficulty in remembering details concerning the interview with Ms Klaassen. Mr Gibian subsequently referred AB to his copy of the interview and proceeded to cross examine him on its content. 53 At the outset, AB stated that he did not want to be interviewed by Ms Klaassen. He later stated that he did not mind doing the interview but he did not wish to come to Court as he had been required to do today. He further explained Ms Klaassen had informed him of the purpose of the interview. He understood that it was important to tell the truth in that interview. Mr Gibian proceeded to question AB concerning his statement that he had just walked into the lounge room when the incident occurred. However, after viewing the CCTV footage he agreed that he did not appear. Accordingly, he agreed that part of his interview was not truthful. However, AB did confirm that the first thing he noticed in relation to the incident was WW on the ground holding his groin area. He then saw WW grab a broom or something like a broom and he was restrained by two other persons and taken away. 54 In relation to the specific incident, AB confirmed he did not see the applicant kick WW nor did he see him jump off the chair or move his leg in any way. These admissions were contrary to statements made in his interview with Ms Klaassen. AB confirmed that while he did not see the incident he did see WW kneeling on the ground crying. 55 In response to a question from Mr Gibian, AB stated that he had heard the applicant had jumped off the chair and kicked WW from other detainees. However he could not remember who may actually have told him this. 56 In re-examination AB said he did not know why he told Ms Klaassen that he had witnessed the incident and had seen the applicant kick WW. Steven William Wilson 57 In a statement filed on 11 December 2008, Mr Wilson deposed he was the Manager of the Baxter Centre and had been employed by the Department since 1984 in a range of capacities, including youth officer and Acting Regional Director. As Manager, he was responsible for the good order, safety and security of the Baxter Centre. 58 Mr Wilson deposed the Centre houses approximately 120 detainees living in eight residential units and employing some 200 staff. He further deposed that he had a working knowledge and understanding of the various legislative obligations and Departmental policies, practices and procedures applicable to the management of detainees. In that regard, he said he was familiar with the policies controlling the use of force and within the Centre he authorised the planned use of force. 59 Mr Wilson stated he had viewed the images taken on the Centre's CCTV concerning the incident and a CD containing two sets of images related to the incident were annexed to his affidavit. Specifically, one set of images showed events between 12.55.00pm and 12.57.30pm and the other between 12.53.48pm and 13.03.46pm on 6 February 2008. With reference to that footage, Mr Wilson stated he recognised Mr Kerr, another youth officer, Mr Greg Fry and a number of detainees. Mr Wilson further deposed that he had viewed images showing Mr Kerr entering into view in the TV room and standing where he appeared to be engaging in what he would term "horseplay" with the detainee WW. 60 Mr Wilson stated that he had told his youth officers not to engage in any horseplay with detainees because it could quickly lead to the escalation of conflict and result in injury. He said the images showed the applicant pushing WW before he sat down. In his opinion, the applicant should not have pushed detainee WW as that was an application of force that was not warranted in the circumstances. Based on his experience of working with the Department, Mr Wilson observed there was no danger or threat that warranted the applicant pushing the detainee. He said that if the applicant felt that WW was behaving improperly, he should have verbally warned him to step away from him or moved away from the detainee himself. Further, if the applicant genuinely felt threatened it would have been more appropriate to call another youth officer for assistance. He also stated that none of the CCTV images recorded "show anything that permitted (the applicant) to push the detainee". 61 Mr Wilson deposed that the applicant's conduct in pushing WW was incorrect in respect of the prevailing circumstances. In his opinion, the applicant's actions were an unlawful use of force in breach of the Department's policies, procedures and cl 50 of the Children (Detention Centres) Regulation 2005. It may have also led to the detainee retaliating with force. 62 Mr Wilson referred to an image taken at 12.55.06 where WW engaged in horseplay with the applicant by throwing a punch or "shadow boxing". With respect to WW's conduct, Mr Wilson stated the punch did not connect with the applicant nor was it thrown at him. 63 Mr Wilson observed the CCTV images showed a period where the applicant is sitting down, WW is standing and both appear to be speaking to each other. In that regard, he observed that in any genuine situation of conflict with a detainee, a youth officer should not be sitting down as they are placing themselves at greater risk by being less able to deal with an assault. Referring to a print of an image taken at 12.55.15pm, Mr Wilson contended subsequent images showed the applicant kicking WW in the groin area. Mr Wilson further observed that in his opinion there was no reason at all for the applicant to kick WW and that action was an unlawful use of force in breach of the Department's policies, procedures and cl 50 of the Regulation. 64 Mr Wilson stated that WW subsequently appeared to be in pain from the applicant's kick. In that regard, he referred to a print of an image taken at 12.55.29pm showing WW rolling around on the floor. He said youth officers were responsible for the welfare of detainees within the Centre and at the time WW was rolling around on the floor the applicant was required to check and confirm whether he required any medical or other assistance. He said that the images set out on the CCTV footage showed that the applicant did not seek to ascertain whether WW required medical or other assistance. 65 Mr Wilson deposed he was aware from the CCTV footage and subsequent reports concerning the use of force by the applicant, that WW had left the TV room area to procure a broom from the dining room which could have been used as a weapon. He was aware from those reports that WW had attempted to return to the TV room and fortunately he was refused entry by staff and the broom was taken from him. However, in his opinion, WW's actions in obtaining the broom and attempting to return to the TV room demonstrated the potential for violence that can arise as a result of an inappropriate use of force by a youth officer. 66 Mr Wilson deposed that the Department's Code of Conduct ('the Code') was applicable to all employees and as a matter of procedure, all new employees were provided with a copy and required to sign a form acknowledging its receipt. The Code was also available through the Department's intranet. Shortly stated, the Code set standards of conduct that all staff are expected to be aware of and adhere to. He subsequently referred to the Professionalism, Responsibility and Inappropriate behaviours sections of the Policy as follows: "Professionalism, You are expected to treat all people in a respectful and caring manner that acknowledges their human rights, cultural background, gender and state of personal development" (Page 8 under the heading 'Values'). "Responsibility, You should ensure that your decisions and actions are reasonable, fair and appropriate to the circumstances and based on consideration of all the relevant facts available" (Page 8 under the heading 'Values'). "Inappropriate behaviours, employees are prohibited from engaging in behaviour that results in physical or emotional abuse of clients or their families" (Page 13 under heading 'Relationships with Clients and Former Clients'). 67 In Mr Wilson's opinion, the actions of the applicant pushing WW and kicking him in the groin could be regarded as unlawful force and in breach of the Professionalism, Responsibility and Inappropriate behaviours sections of the Code. 68 Mr Wilson referred to the Department's Client Protection Policy and stated that as a matter of course all new employees were provided with a copy and required to sign a form acknowledging its receipt. The Policy was also available on the Department's intranet. He contended the applicant had breached the Policy concerning the safety, welfare and well being of a child or young person and those sections of the Policy dealing with physical assault on the grounds that the applicant had committed an act on or towards a child. That act involved either the application of force to a child or caused a child to think that immediate force would be used on them. He described the act as either hostile or reckless, because a person could reasonably foresee the consequences or the likelihood of inflicting injury or fear. Mr Wilson contended that in the applicant's case he ignored that risk. With respect to the Client Protection Policy, Mr Wilson stated that in his opinion, the actions of the applicant in both pushing WW and kicking him in the groin amounted to physical assault and accordingly he had breached the Policy and had displayed little regard for WW's welfare or well being. 69 Mr Wilson referred to the Regulation and stated that cl 50 clearly identified the circumstances where an officer may use force and, in his opinion the applicant's use of force on detainee WW was neither justified nor appropriate in all the circumstances. In his view, the use of force on a detainee should only be undertaken when absolutely necessary and all other options had been exhausted. He contended that he instructs youth officers at the Baxter Centre of their requirement to warn a detainee a number of times before using force for refusing to follow a direction. 70 Mr Wilson referred to the Department's Reactive Intervention - Use of Force Procedure and stated this Procedure clearly identified all the factors that need to be considered prior to an officer using force. It also required an assessment of the detainee's behaviour that may warrant the use of force. In his opinion the applicant breached the Use of Force Procedure by kicking WW. 71 Mr Wilson further deposed that both the Department and its employees hold important obligations under the Occupational Health and Safety Act 2000. Referring specifically to s 20 of the Act, Mr Wilson stated an employee must take reasonable care for the health and safety of persons within the workplace and must, while at work, co-operate with the employer to enable compliance with the Act and the regulations in the interests of the employer or any other person. In his opinion, the applicant's actions in pushing and kicking WW created a serious risk for the safety of the detainee, other detainees, youth officers and himself. Additionally, the applicant's actions had the potential to cause WW to retaliate and in his opinion, such retaliation would have constituted a serious risk to those persons present at the time. He further stated that in his experience, detainees were more likely to become involved where they perceived the use of force was unjustified. In that regard, he said other detainees were present when the applicant pushed and kicked WW. Accordingly, there was a risk they may have also used force against youth officers present at the time. 72 In conclusion, Mr Wilson stated that in pushing and kicking WW, the applicant's actions had the potential to escalate the situation into a large conflict involving other youth officers and detainees. 73 In cross examination Mr Wilson confirmed that where an allegation of misconduct is made, he was required to make a recommendation that the matter should either simply lie or a disciplinary investigation should be initiated. He explained that in deciding what recommendation to make to the Director General, he would assess the information available concerning the incident, which would generally consist of staff reports, statements made by detainees, staff members and, in some cases, CCTV footage. Mr Wilson stated that in normal circumstances he was not directly involved in arranging for detainees and staff members to provide statements concerning an alleged incident. That role was completed by the relevant officer in charge who would later provide those materials to him. He said the officer in charge could, from time to time, be the Duty Manager, the Assistant Manager or the Unit Manager. 74 Mr Wilson further confirmed that following his assessment of all the available material concerning an alleged incident, he would provide that material to the Director General. In the event of a disciplinary matter, the Professional Conduct Unit within the Department would decide whether or not further action was required. Mr Wilson also inferred the Professional Conduct Unit may take into consideration the recommendation he had made to the Director General. Where the Professional Conduct Unit decided to pursue the allegation as a disciplinary matter, his involvement in proceedings would cease immediately. 75 Mr Wilson subsequently stated that where an incident involved a detainee, a pro forma procedure was applied to capture information concerning the incident, staff reports and any other incident reports. He confirmed that in the case of the applicant, he would have recommended that the allegation of misconduct should be dealt with as a disciplinary matter in accordance with the provisions of the Public Sector Employment and Management Act. He was unable to recall the date when the relevant recommendation was made. 76 Prior to making the recommendation to the Director General, Mr Wilson stated that he had examined the CCTV footage and considered the reports of Mr Hockley, Mr Fry and Mr Minney. However, he could not recall whether he had received any reports from detainees and later, confirmed he made no attempt to obtain reports from detainees who may have witnessed the alleged incident. In relation to the investigation report undertaken by Ms Klaassen, Mr Wilson stated that he had not received a copy of that document. 77 Mr Wilson stated that he had reviewed the relevant CCTV footage in or around December 2008 for the purposes of preparing his affidavit filed in these proceedings. He also confirmed that in preparing his affidavit he did not review any other reports that had previously been available to him. In relation to the various opinions expressed in his affidavit, Mr Wilson confirmed those opinions were based solely upon his examination of the CCTV footage. He had also examined that footage from one angle only. With reference to the observations made in his affidavit concerning his opinion that the applicant appeared to engage in horseplay with WW immediately prior to the incident, he acknowledged that on occasions a youth officer may willingly participate in such activity and on other occasions, depending on the circumstances, there was nothing a youth officer could do to immediately prevent a detainee from approaching, touching or pushing him if that's what the detainee was determined to do. 78 Mr Wilson confirmed that where a detainee approached a youth officer in such a manner and touched them or encroached on their personal space, the youth officer should have warned him to move away. Should the detainee ignore such a direction, the youth officer should seek assistance by radio or speak to another staff member to provide additional assistance. Where a detainee persisted in being in the face of the youth officer or touching and pushing, then the youth officer should radio for assistance immediately. Mr Wilson confirmed that where a detainee disregarded a direction, the relevant youth officer may seek assistance by radio, speak to another staff member or initiate a duress alarm. In his view, an experienced youth officer would know whether a detainee's gesture was one which may lead to a more serious situation. Mr Wilson stated that in the event a detainee touched the arm or chest of a youth officer, the youth officer would be able to remove the arm within reason and in such circumstances, that action was an acceptable use of force for the purposes of the Regulation. 79 In response to a series of questions concerning the CCTV footage, Mr Wilson confirmed there was no soundtrack and he did not know whether the applicant had warned WW to step away from him. Moreover, in relation to the specific allegations that led to the applicant's dismissal, Mr Wilson confirmed there was no allegation made against the applicant concerning "any push" and further he confirmed the action of the applicant as observed from the footage was an appropriate action moving the hand of WW away from his body. In that regard, he agreed that he had changed his evidence with particular reference to paragraph 16 of his affidavit where he stated "pushing detainee WW was incorrect action for Mr Kerr to take in the circumstances". Similarly, he no longer held the opinion the applicant's conduct amounted to an unlawful use of force in breach of the Department's Policies and Procedures with respect to cl 50 of the Children (Detention Centres) Regulation. 80 Mr Wilson confirmed that from the CCTV footage, it appeared to him that the applicant, in kicking WW in the groin area, appeared to make contact. He drew that conclusion in response to the leg movement of the applicant and the subsequent physical reaction of WW. Mr Wilson also confirmed WW appeared to be in pain from the kick. He was unable to state whether he thought WW was feigning that injury or whether it was a genuine response. 81 In relation to his evidence that youth officers were responsible for the welfare of detainees within the Centre, Mr Wilson was unable to confirm in the absence of a soundtrack on the footage whether or not the applicant had in fact offered any assistance to WW or had enquired about his well being. In that regard he made the following statement "well, I couldn't see him making any gestures, I couldn't see that he'd asked, from watching the CCTV footage, I didn't see him speak or I didn't see him make any gestures towards the detainee". 82 Mr Wilson also contended that in his view it would have been common practice for the applicant to have risen from his seat to provide assistance in some way to WW. In relation to his evidence concerning the Code of Conduct and specifically that the applicant's "push" was in breach of that Code, Mr Wilson withdrew his opinion that the alleged push was in breach of the Code of Conduct. In that regard he confirmed that when he received a copy of the Director General's letter to the applicant dated 12 February 2008, there was no allegation the applicant's conduct was in breach of the Code of Conduct. He also confirmed he did not raise with the Professional Standards Unit of the Department the fact that, at the time, he believed the applicant had breached both the Code of Conduct and the Client Protection Policy. Defending that position, Mr Wilson said at the time he was only required to provide information to the Professional Standards Unit that "we had at hand while they conducted the investigation" and it was not until he examined the CCTV footage further that his attention was drawn to a breach of the Code and Policy by the applicant. He further agreed the disciplinary allegations made against the applicant and the recommendation he made to the Director General did not contain any reference to an alleged breach of cl 50 of the Regulation. 83 Mr Gibian drew Mr Wilson's attention to the fact the Department's Reactive Intervention Use of Force Procedure Policy contained a header which read "Draft, Without Prejudice, November 2007". In response, Mr Wilson confirmed it was a draft document and whilst he was unaware of the precise date of implementation, the Baxter Centre was operating on the basis that the Procedure was in force at the time of the incident. He also confirmed the disciplinary allegation made against the applicant did not set out a reference to any breach of that procedure. 84 In relation to his opinion the applicant had breached the Occupational Health and Safety Act Mr Wilson confirmed he had not made a report to WorkCover concerning the incident. He confirmed that his obligations under the Act were to firstly report the matter through the OH&S Committee and then to the Department. 85 In re-examination Mr Murphy referred Mr Wilson to his cross examination where he was asked a number of questions concerning the allegation that the applicant "pushed WW". At the request of Mr Murphy, Mr Wilson viewed the CCTV footage once more and the following exchange took place: Q. Now, I want you to have a look at the video and tell the Commission at what point you say he moved his hand away from his body, if in fact you do say that, and at what point he pushed him and whether or not they were one and he same actions? (CCTV footage played) A. It was the push. Q. And was there a separate action on your viewing of that of him moving his hand away from his body? A. Can you run through that again for me, please? Q. Can we just rewind that and play that again. So on your viewing of it, there was not a separate incident of him moving his hand away? A. I think initially he moved the boy's hand when he was coming around the side and there was the push. 86 In relation to the proposition that the applicant did not offer assistance to WW after the incident, Mr Wilson said he had based his view on what he saw on the CCTV footage and, in particular, when viewing the footage on his laptop where there was "somewhat more clarity". He did not observe any facial expressions or the applicant's eyes looking towards WW after he had kicked him. He was unaware whether in the applicant's defence anything had been put during the course of investigation to support the proposition that the applicant had in fact offered assistance to WW. 87 Mr Wilson confirmed he did not play any role in drafting the allegation that led to the applicant's dismissal. Mr Murphy stated Mr Wilson's reference to the Code of Conduct in his affidavit was made following an analysis of the CCTV footage. Mr Wilson also confirmed the Department had asked him to prepare his affidavit and the instructions put to him were that he was to observe the footage and "give particular interest to Department Policies and Procedures in preparation of that document". In conclusion, he stated that both the Client Protection Policy and the Code of Conduct were considered to be part of the instructions given to him by the Department. Paul Chris Hockley 88 The evidence of Mr Hockley comprised an Internal Communications Report dated 11 February 2008 and the transcript of interview by Ms Wendy Klaassen on 18 February 2008 as set out in the affidavit filed by Miss Christoff on 9 October 2008. 89 In cross examination, Mr Hockley stated he had been employed by the Department for some 21 years at the Baxter Detention Centre. He had been a Unit Manager for approximately 10 years and the Manager of the Bouddhi Unit for approximately 18 months. 90 Mr Hockley confirmed he had known the applicant since he commenced with the Department in 1994 at Mount Penang and regularly supervised him. He was unaware of any previous incidents similar to that currently alleged. He agreed that if the allegation was substantiated then, from his experience, the applicant's actions were entirely out of character. In his view the applicant was a dedicated, experienced and valued member of his staff who enjoyed a good rapport with detainees. Mr Hockley also stated he was confident that if the applicant was to return to the workplace he would not repeat the alleged contact. 91 Mr Hockley explained that he worked in the back office, whereas youth officers generally worked from the front office. He stated he was unaware the incident had occurred until he heard a bang on the perspex window. He said that detainees bang on the perspex window regularly if they are not happy or cranky or they believe no-one will see them. Mr Hockley stated that shortly after WW had banged on the perspex window, he and Mr Minney had to use force to restrain WW who at the time was holding a broom. Mr Hockley further explained that WW had tried to grab a broom off another detainee and had said he was going to assault someone. Mr Hockley could not remember whether or not WW actually got hold of the broom as things were moving fairly quickly. He said all he knew at the time was there appeared to be an attempted assault on a staff member. Mr Hockley did not prepare a report in relation to WW's behaviour nor did he request Mr Minney to do so. Mr Hockley said he had escorted WW to the confinement area where WW informed him that the applicant had kicked him in the testicles. 92 In regard to this incident Mr Hockley was instructed to complete a report to the Professional Conduct Unit and this report took the form of the Internal Communications Report dated 11 February 2008. He admitted the report should have been made on the day of the incident but was not due to the range of activities occurring at the time. Mr Hockley stated the incident occurred at 1.00pm and he was subsequently required to move WW to the confinement area, report the incident to his manager and examine the CCTV footage following the allegation made in respect of the applicant's conduct. He said the applicant finished work at 2.00pm and it was not possible to discuss the matter with him due to time constraints. 93 Mr Hockley confirmed that following the incident he was not involved in questioning WW or other detainees. However he did look at the CCTV footage with his Assistant Manager, Mr Greg Corbin. 94 In relation to a subsequent meeting with the applicant, Mr Hockley confirmed the applicant had said words to the effect: I was just sitting in the TV room, WW was in my face and I threw up my leg to get some personal space. He also confirmed that he had told the applicant WW alleged " you got him in the nuts ". Mr Hockley denied the applicant had said to him he did not kick WW as alleged and " if WW wants an apology for putting on a show, that is what I'm willing to do ." Rather, Mr Hockley said the applicant asked him to talk to WW and he replied he was unable to do so. When further pressed, Mr Hockley stated he could not recall the applicant asking him whether he wanted him to make a report but he may well have. He denied telling the applicant to " just go home" . In relation to whether or not contact was made with WW, Mr Hockley said the applicant had stated to him " the camera doesn't lie and I'll have to wear the consequences ". At no stage did the applicant tell him, or admit, that he had kicked WW in the testicles. Mr Hockley confirmed the applicant had said words to the effect that " the CCTV won't lie". 95 Mr Hockley described WW as a "high maintenance" detainee who was regularly engaged in what he described as verbal, non-compliant activity. He observed that WW was capable of inciting other detainees to be disobedient and was, on occasions, subversive. He later explained that most detainees in the Bouddhi Unit had similar behavioural problems to WW. 96 In re-examination Mr Hockley confirmed that he had discussed the incident with the applicant prior to him knocking off at the end of his shift on 6 February 2008. Mr Murphy directed Mr Hockley to the Internal Communication Report made on 11 February 2008 and specifically to the following statement: I later spoke to staff member Kerr, who stated that his foot had made contact with detainee WW's upper thigh and that the CCTV would not lie. 97 In response, Mr Hockley confirmed that he wrote what the applicant would have said to him at the time. He also confirmed he had recalled the applicant's statement during the course of his interview with Ms Klaassen on 18 February 2008. Gregory Fry 98 The evidence of Mr Fry comprised a transcript of interview by Ms Klaassen on 27 February 2008, set out in the affidavit filed by Ms Christoph on 9 October 2008. In response to Mr Murphy, Mr Fry stated his answers to the questions raised by Ms Klaassen during her interview were true and correct. Mr Fry further stated his position with the Department was that of permanent casual youth officer. 99 In cross examination, Mr Fry stated that he had been employed by the Department since 2007 at the Baxter Detention Centre and had worked in the Bouddhi Unit only in recent days. In response to further questioning from Mr Gibian, Mr Fry stated he had worked in the Bouddhi Unit on a "filling in" basis on a number of occasions and he confirmed he worked in that Unit on 6 February 2008 when the alleged incident occurred. Mr Fry further confirmed that as a result of that incident, a disciplinary allegation was made against him, alleging he had failed to intervene when the incident occurred and had also failed to make a report concerning the matter. In that regard, Mr Fry said the matter was dealt with by counselling. 100 At that point in proceedings, Mr Murphy referred Mr Fry to an Internal Communication Report filed by him on 7 February 2008 which dealt with the alleged incident between the applicant and WW. Mr Fry subsequently read the contents of the Report and confirmed the Report was both true and correct. 101 In response to questioning from Mr Gibian, Mr Fry agreed with the observation that detainees located in the Bouddhi Unit were more hyperactive and physical. In that regard, Mr Fry stated the Bouddhi Unit detainees expressed "immature actions" and appeared "to be coming off street drugs" and seeking to "basically put a level of authority in their Unit within the boys, like, 'I'm king, you do what I say' sort of thing, that sort of immaturity". Further, in response to a question concerning whether detainees were more likely to be physical with staff, Mr Fry stated he had only worked there twice on two 8-hour shifts, including the day of the alleged incident. 102 Mr Fry confirmed he had seen the CCTV footage during the course of his interview with Ms Klaassen and also on a prior occasion with Mr Hockley. He was unable to state the purpose of viewing the footage with Mr Hockley or the date he first viewed it. However, he was able to confirm that he had viewed the footage prior to his interview with Ms Klaassen. Mr Fry identified where he was seated in the TV room. While sitting in that position he could not recall the applicant returning from the lunch room nor could he recall WW approaching the applicant as he walked into the TV room. However, he did recall the applicant sitting down opposite him. He acknowledged his Internal Communication Report partly stated "I saw Y/O Kerr's foot coming down from between detainee WW's legs". He confirmed he did not seek to intervene despite undergoing training related to the Department's Client Protection Policy in or about November 2007 when he joined the Department. In that regard, he said he was aware that he was required to intervene on duty of care grounds. However, he agreed with Mr Gibian that he did not intervene because he did not think anything untoward had occurred. In relation to WW's reaction immediately following the incident, Mr Fry contended it was his view that WW seemed to be more embarrassed at the time concerning the incident and he did not appear to be hurt. 103 In response to further questioning, Mr Fry stated that WW appeared to be pretending and putting on a show to embarrass the applicant. He further contended that at the time, other boys in the TV room began to laugh at WW because of the incident and, in his opinion, WW proceeded to engage in bad language and subsequently returned with a broom as a sign of his authority. There was no re-examination. George Minney 104 The evidence of Mr Minney comprised an Internal Communications Report dated 7 February 2008 and a transcript of interview by Ms Klaassen on 27 February 2008, as set out in the affidavit filed by Ms Christoph on 9 October 2008. In cross examination, Mr Minney confirmed he had worked at the Baxter Detention Centre since November 2006 as a youth officer. He further confirmed that at the time of the alleged incident he had been working in the Bouddhi Unit for about five months. Mr Minney described WW as "a bit of a class clown" and said that at times he was a "handful" to supervise. Mr Minney further stated that on occasions WW would "muck around" and gave an example where WW had accused him of slamming his fingers in the door when he had not. In his experience, WW would muck around or feign injury once per week. Mr Minney confirmed that arising out of the incident between the applicant and WW, he was subject to disciplinary allegations on the grounds that he had failed to intervene and make the necessary report concerning what had occurred. Mr Minney stated those disciplinary allegations were subsequently dismissed by the Department and no finding was made against him. 105 Mr Gibian drew Mr Minney's attention to the CCTV footage related to the incident between the applicant and WW. With reference to that footage, Mr Minney stated he had been supervising detainees cleaning up the kitchen area and was prompted to walk from the kitchen lunch area into the TV room as a result of an elevated noise level. Mr Minney identified himself on the screen and estimated that at or about the time of the alleged incident he was standing three or four metres from the applicant. He could not recall whether there was anything obstructing his view between where he stood and where the applicant was sitting at the time. He said the primary purpose of entering the TV room was supervisory and when he scanned the TV room for that purpose, he saw WW in front of the applicant and saw him buckle over. However, he did not see any contact between the applicant and WW that may have given rise to WW's position at the time. 106 Mr Minney confirmed he was aware of his requirement and obligation to intervene in the event he thought WW was suffering distress as a result of the applicant's action. It was Mr Minney's evidence that he did not think WW had been assaulted by the applicant. Rather, he thought WW was simply "playing around". With reference to his interview with Ms Klaassen, Mr Minney recalled his comment that WW did not appear to be in any pain and despite WW's yelling and associated actions, that view remained. Further, he could not recall WW uttering words to the effect that the applicant had kicked him in the groin area. There was no re-examination. 'WW' 107 The evidence of WW comprised a handwritten statement signed at 1.00pm on 6 February 2008, a Complaint Registration Form setting out details of the complaint made against the applicant, also dated 6 February 2008 and the transcript of an interview by Ms Klaassen conducted on 18 February 2008 as set out in the affidavit filed by Ms Christoph on 9 October 2008. WW subsequently confirmed the Complaint Registration Form had been completed by an employee of the Centre. 108 In cross examination, WW confirmed he was a detainee in the Centre following his criminal behaviour and had more recently been detained at the Cobham Centre for breach of parole. He was currently on parole. 109 With reference to his description concerning the incident, WW stated he expected the outcome of his complaint was that the applicant would be spoken to by the Unit Manager. He also stated he did not want the applicant's conduct to be inflicted on other detainees. In response to questions from Mr Gibian, WW stated that whilst he recalled the applicant walking into the TV room immediately prior to the incident and that he had approached him, he could not recall whether he had touched the applicant on the shoulder or arm. Further, he could not recall proceeding to "punch the applicant". However, he did recall when he approached the applicant he was "just having like a joke, just a little laugh, you know". 110 WW subsequently identified himself on the CCTV footage vision and acknowledged when the applicant walked into the TV room he approached him and touched him on the arm. He also agreed he pretended to box or shadow box with the applicant. However, he denied he was trying to annoy the applicant or was seeking to create some kind of confrontation with him. He also denied he was trying to put on a "show" to demonstrate he was a tough guy. He agreed the applicant was annoyed by his actions and had told him to move away and create some personal space. WW stated he moved away when asked, but in further cross-examination said he was standing about an arm's length away from him. 111 Mr Gibian referred WW to his interview with Ms Klaassen where he denied the applicant had asked him to move away before he had kicked him. He could not explain why he had told Ms Klaassen something different to what his evidence was in these proceedings. He agreed that when the applicant had asked him to move away he did not do so. Moreover, at that point in time, he did not fear the applicant nor did he try to protect himself in any way. He did not think the applicant was going to kick him and when the applicant raised his leg he stated this action had shocked him. Mr Gibian referred WW to his interview with Ms Klaassen where he stated: I was standing in front of him for just a bit and after that he just reached and turned around and kicked me. 112 When further questioned about the evidence set out in his interview with Ms Klaassen, WW confirmed that when the applicant sat down on the chair, he had remained seated. He said his reference to the applicant turning around was "that's just like, saying another way for, like, sort of like reacting". He also confirmed the applicant did not try and get closer to him in any way. He agreed that when the applicant had raised his leg he moved away from him and simultaneously, a number of the detainees in the room laughed at him. He said that response had both made him angry and damaged his pride. Subsequently the following exchange took place: Q. The fact that they laughed? A. Yes. Q. Made you look like a bit of an idiot? A. Yes. Q. And it was then that you walked over to the corner underneath the TV and it was only when you walked over to the corner that you started holding your groin area? A. Yes. Q. You didn't immediately start holding your groin area? A. No. Q. And is it the case that when you were over underneath the TV, you decided you were going to pretend like he'd made contact with you? A. No, I wasn't going to pretend because it was like, you know, the truth, it actually did happen. Q. Can I suggest to you that he didn't make contact with you? A. Pardon? Q. He didn't make contact with you with his foot? A. No, he did. Q. And if he did make contact, it wasn't with your balls? A. It was, he hit me in the groin. Q. Is it the case that you thought that when you were sitting under the TV, that a way to get back to Mr Kerr for showing you up was to pretend that he kicked you? A. No, I wasn't pretending. Q. And when you were underneath the TV, I think you sat down? A. Yes. Q. No one took much notice of you, did they? A. No. WW also confirmed no detainees or staff had offered him any help. He could not recall the applicant offering him any assistance. 113 Mr Gibian referred WW to the transcript of his interview with Ms Klaassen where he was reported as saying: ... yes, he goes, he goes, 'do you want a hand then' like he put out his hand and goes 'do you want a hand', and I said no, I started swearing and telling him to fuck off, you know. Having refreshed his memory with respect to his interview with Ms Klaassen, WW recalled the fact that the applicant had offered him a hand and was the only person to offer him any assistance. He rejected the proposition that the CCTV footage showed him walking out of the TV room without any difficulty. 114 With respect to the incident he said he was surprised by what occurred. WW stated that following the incident he was not angry with other detainees because it was his problem. He explained that when he walked out of the TV room towards the kitchen, he was "trying to hold it in". He explained he was winded. With reference to Mr Gibian's observation that he was able to walk upright and did not bend over at all when exiting, WW stated he was "holding the pain in" which was why he had clenched his fists and hit the perspex window. 115 With reference to his written complaint dated 6 February 2008, WW stated when the applicant said to him "do you want your balls where your mouth is", he thought the applicant was having a joke with him. WW denied the suggestion he had invented those words attributed to the applicant in his statement. WW stated that following the incident he was placed in confinement as a result of grabbing the broom and potentially threatening the applicant. Whilst in confinement he was interviewed by police and subsequently completed the relevant complaint registration form. 116 With reference to his interview with Ms Klaassen, where he described the applicant's kick to be "like kicking a ball, a soccer ball or something". WW explained he meant the kick was "like a little lob, like a little chip, but the way it was, it was real quick". He agreed that when the applicant raised his leg, he had remained seated at the time and did not get off the chair. WW stated he was trying to convey to Ms Klaassen how hard he thought the kick was and denied he was trying to exaggerate. WW also agreed with Mr Gibian that when he had described the applicant's kick he was referring to someone standing up and kicking. 117 WW stated he was in confinement for about an hour or so and when he returned to the Unit, he had settled down and talked to JH about what had transpired. He did not believe he spoke to AB or CJ about the incident. He subsequently agreed he had told JH that the applicant had said the words "do you want your balls where your mouth is". He was also unaware the incident was the subject of broad controversy within the Unit that afternoon. WW stated he was given an option as to whether he wished to be interviewed by Ms Klaassen and at the time he was unaware that other detainees were also being interviewed. In that regard, he stated he had not spoken to other detainees about the interview. Further he had not spoken to anybody concerning the fact that he had been interviewed by Ms Klaassen. 118 In re-examination WW was unable to identify two detainees pictured in the CCTV footage. 'JH' 119 At the outset JH identified his location in the CCTV footage and stated the following with respect to what he saw and heard in relation to the incident involving the applicant: He said that he'll put WW's balls where his mouth is and then he kicked him. And then WW got segregation and then he come back later and he was still hurt. Just that. 120 Mr Murphy subsequently referred JH to a file note dated 11 March 2008 which JH agreed was a record in dot form of the conversation he had with Ms Klaassen concerning the incident. The file note was set out on page 234 of the affidavit filed by Ms Christoph on 9 October 2008. Having read the file note, JH stated the document was an accurate record of his conversation with Ms Klaassen and what he had told Ms Klaassen in the course of that conversation was both true and correct. 121 In cross examination, JH could not recall the date of the conversation with Ms Klaassen nor could he recall her name. It was JH's recollection that the purpose of his conversation with Ms Klaassen was to discuss a matter involving a worker who had kicked WW. During his detention at the Centre, JH became a friend of WW. He also shared a room with him. He was also friendly with AB and CJ. In response to questioning from Mr Gibian, JH said a fight or altercation was generally the subject of discussion between detainees. However, following the incident and when WW was sent to confinement as punishment for his behaviour, JH recalled that it was probable that he had discussed the matter with other detainees but he could not remember who he had discussed the issue with. JH could not recall or remember anything that WW may have said to the applicant immediately prior to the incident. Nor could he remember whether or not WW was shadow boxing with the applicant. Moreover, it was his evidence that there was nothing particular occurring at the time to attract his attention to the interaction between WW and the applicant. 122 He agreed it was not unusual for WW to pester youth officers but denied WW would undertake such activity regularly. He agreed the first thing he noticed that was out of the ordinary was when the applicant lifted his leg. He also agreed he did not react in any way and remained seated. He recalled a conversation was taking place between WW and the applicant at the time but he could not recall what WW may have said. However, he did recall the applicant saying to WW at least once that he should move away. He agreed that when the applicant raised his leg it was a quick movement and at the time he was looking at both WW and the applicant. He stated WW was wearing baggy shorts and although it was his belief that contact was made, he was not certain, although he contended that contact was made around the area of WW's groin. However, he also agreed that contact could have been made with WW's leg. Following the incident, he agreed with Mr Gibian that he did not get up and could not recall whether he had reacted in any special way. The following exchange took place between JH and Mr Gibian: Q. Did you go and see whether Mr Ward was all right? A. I can't remember. I think I just sat down, because I was still sitting down when he jumped up and he was angry. Q. Okay. So you didn't get up at any time until Mr Ward was taken off out of the unit? A. Yes. 123 It was JH's evidence that despite the fact that immediately following the incident he did not seek to establish whether WW was alright, he nevertheless looked like he was hurt. JH agreed with Mr Gibian that WW may have been in confinement for up to seven hours. He said when WW came back to his room following confinement "he came back and he was walking funny and that". He agreed that when WW came back to his room they both discussed what had happened. He denied WW had told him the applicant had said the words "do you want your balls where your mouth is?" to him. He said he had heard Mr Kerr utter those words "when we were there". He said he did not know whether WW had also told him the gist of that conversation. He was emphatic that he heard the applicant state those words to WW. There was no re-examination. 'LI' 124 In response to a question from Mr Murphy, LI stated he was a witness to the incident that occurred between the applicant and detainee WW. Further, he recalled what he saw and heard and related the incident at follows: I think we were in the unit watching TV and that and I seen WW, like, I think if I can remember, I seen him go up to Lloyd and pretend to punch him in the stomach and that and Lloyd just turned around and said, "If you want your balls to be where your mouth is, keep going", or something. And then - I'm having trouble remembering because it was a while ago. Then something happened and Lloyd just gave him a short kick, like, in the thigh, like, just above the shin sort of thing. ... Or something happened and then Lloyd give him - just kicked him in between the shins or something, like, just above the shin and that. It never got him in the groin area or nothing, it was just a soft kick and little Wayne Ward fell to the ground like a drama queen and started like pretending that he - he made out to everyone, all the boys and the workers that he just got kicked in the balls, and I could see quite clear that he didn't, or I'm pretty sure he didn't anyway. Yes, he just sort of went on like a drama queen. 125 LI described the applicant as a fair person who in his view would not deliberately go out of his way to hurt a detainee. Mr Murphy also referred LI to the record of interview conducted by Ms Klaassen on 18 February 2008 and attached to the affidavit filed by Ms Christoph on 9 October 2008. He affirmed that the record of interview was a truthful account of what he saw relating to the incident. LI stated that whilst he was short sighted he did not have any difficulty watching events that were perhaps two or three metres away. 126 In response to questions from Mr Gibian, LI stated he became a friend of WW but he was not his "best mate". He later stated WW was inclined to carry on at times in order to gain the attention of other detainees. He also stated he was aware WW was taken to confinement following the incident. However the incident was not something that was discussed by detainees in the Unit and in his view "everyone just forgot about it". He could not remember talking to anyone else about the incident and could not remember detainee JH. Further, he did not recall actually seeing WW pretending to punch or shadow box the applicant and agreed it may well have been something he had been told by another person. In that regard he could not recall or remember who may have told him. Notwithstanding that evidence, LI was adamant he heard the applicant say to WW "do you want your balls where your mouth is?". Moreover, he also agreed that at or about the point of the applicant sitting down in the TV room "there was nothing out of the ordinary that seemed to be going on". The following exchange took place: Q. Did anything draw your attention to WW and Mr Kerr? A. Yes, what Mr Kerr said. Q. Can you just play it on. Now, when Mr Kerr raises his leg, you're standing directly in front of Mr W? A. Yes. Q. And you could see Mr W very clearly? A. Yes. SUBMISSIONS For the applicant 127 Mr Gibian spoke to and addressed his outline of submissions in support of the applicant's case tendered during the course of these proceedings. At the outset, he contended the applicant's dismissal was harsh, unreasonable or unjust and sought orders he be reinstated to his former position as a youth officer together with orders for remuneration lost and the maintenance of the continuity of his employment. He submitted the applicant had been continuously employed by the Department since June 1994. 128 Mr Gibian recalled the applicant was dismissed as a result of a single allegation arising from an incident that took place on 6 February 2008. Specifically, the allegation was that: On or about 6 February 2008 you assaulted detainee WW at Frank Baxter Juvenile Justice Centre. 129 Mr Gibian recounted particulars raised in the allegation: It has been alleged that at approximately 1pm on 6 February 2008, while you were supervising a group of detainees in the TV area of the Bouddhi Unit at the Frank Baxter Juvenile Justice Centre, you assaulted detainee WW by kicking him with your right leg in the groin area whilst you were in a seated position. WW has alleged that you used an amount of force that was equivalent to kicking a soccer ball and that your foot connected with his testicles. It has also been alleged that prior to kicking him, you said to WW words to the effect of, "Do you want your balls where your mouth is?" 130 Mr Gibian submitted the applicant was informed by phone on the night of 6 February 2008 that he was immediately suspended from work and was also required to make a report in relation to the incident. He was formally notified an allegation of misconduct had been made against him in correspondence from the Director General dated 12 February 2008. The Director General also advised the applicant that the Department had decided to deal with the allegation as a disciplinary matter and, accordingly, he was suspended from duty pending an investigation. The Director General subsequently appointed Ms Klaassen to undertake an investigation of the allegation made against the applicant. The applicant was subsequently interviewed by Ms Klaassen on 27 February 2008 and an investigation report dated 13 March 2008 was later forwarded to the Department. 131 Mr Gibian noted Ms Klaassen had interviewed a number of persons during the course of her investigation. Mr Gibian drew the Commission's attention to correspondence from then Acting Director General, Mr Muir, dated 1 May 2008, advising the applicant he had formed the opinion he had engaged in misconduct and was considering a range of disciplinary actions including dismissal. Mr Muir subsequently met with the applicant at his request on 19 May and following that meeting, the applicant made further written submissions concerning his conduct. 132 In correspondence dated 9 July 2008, Mr Muir advised the applicant that he had determined to impose disciplinary action in the form of dismissal effective from that date. Mr Muir also informed the applicant the alleged conduct came within the definition of reportable conduct for the purposes of the Commission for Children and Young People Act and accordingly, his name would be registered with the Commission for Children and Young People as a Category One notification. 133 Mr Gibian referred the Commission to the statutory scheme provided by the Public Sector Employment and Management Act which requires the Director General to deal with allegations of misconduct as defined under s 43 of the Act as either a disciplinary matter or a matter that requires remedial action. If the Director General decides to deal with an allegation as a disciplinary matter he or she is able, pursuant to s 46(2) of the Act, to take disciplinary action where he or she "is of the opinion that the officer is engaged in misconduct". He subsequently referred to the range of disciplinary action provided under s 42(1) of the Act which, shortly stated, may range from dismissal through to the imposition of a fine, caution or reprimand. 134 In regard to the statutory scheme, Mr Gibian submitted that in considering this application, the Commission is required to find whether the misconduct in fact occurred as alleged and, if it did occur, whether the disciplinary action of dismissal was harsh, unreasonable or unjust in all the circumstances, including the availability of other disciplinary measures available: see Director of Public Employment v Public Service and Professional Officers' Association Amalgamated Union of NSW (on behalf of Brown) [2008] NSWIRComm 221 at [22]. 135 Mr Gibian also submitted the Commission was required to determine whether the allegations had been made out on the evidence: see NSW Public Service Professional Officers' Association v Forestry Commission (1990) 39 IR 46 AT 51-52 per Cahill J, Vice President. 136 Mr Gibian contended the dismissal of an employee for misconduct may be harsh, unreasonable or unjust on the grounds that it was unfair, because the Commission was not satisfied that the allegations relied upon in fact occurred or in the alternative, because dismissal was too harsh a punishment. In that regard, he referred to the High Court decision in Byrne & Anor v Australian Airlines Ltd (1995) 185 CLR 410 where McHugh and Gummow JJ stated at 465: 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. 137 He further contended a similar approach was adopted by the Commission in Outboard World Pty Ltd (t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 165 at 183. A dismissal may also be unreasonable but not harsh, or harsh but not unjust or the dismissal may be harsh, unjust and unreasonable: Bankstown City Council v Paris (1999) 100 IR 363 at 371. 138 Mr Gibian submitted that in this matter, the Department had sought to justify the dismissal on the basis of a specific allegation of misconduct. The onus therefore also fell on the employer to establish that the alleged misconduct in fact occurred and warranted dismissal. In that regard, he referred to the oft quoted decision of Hungerford J in Pastrycooks Employees, Biscuit Makers & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 83-84 where his Honour observed: 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 Abattoir (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 JC 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. 139 Mr Gibian stated the onus of proof fell on the employer and the standard of proof, being the civil standard, must be such as to enable a positive finding that the misconduct occurred: Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 463-464: The onus of proof in such a case is 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 & M (1988) 63 AJLR 108 and by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. See also Shop, Distributive & 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. 140 Mr Gibian submitted that in pressing misconduct, the Department was required to make out its case in a convincing way. He contended that where an employer who operates within the statutory scheme, such as the Public Service Employment Management Act, is unable to prove to the requisite standard that the misconduct relied upon occurred, the statutory foundation for imposing the disciplinary action does not exist: see Director of Public Employment v Public Service and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Brown). 141 With reference to the alleged misconduct, Mr Gibian contended the investigator, Ms Klaassen, had concluded the applicant kicked detainee WW and that contact was made in the testicles. However, in arriving at that conclusion, he said Ms Klaassen accepted that the applicant had repeatedly and convincingly stated his actions were unintentional, he had not engaged in a hostile act and he did not intend his foot to connect with detainee WW. In that regard, and in the absence of anything further from Mr Muir, Mr Gibian contended the Commission could only assume the applicant was dismissed for unintentionally making contact with detainee WW. 142 Mr Gibian also contended there was no basis whatsoever to support the proposition or conclusion the applicant intentionally kicked WW or intended to cause any harm or injury to him. He referred to the evidence of the applicant and WW immediately prior to the incident, particularly concerning the applicant's desire for personal space. Referring to the CCTV footage, Mr Gibian said the applicant remained seated on a low chair and when he lifted his leg, he did not reach or move toward detainee WW in any way. He further contended that had the applicant sought to intentionally kick WW and cause him harm, he would not have remained seated but presumably he would have stood up and sought to ensure he made good contact with him. He further contended the applicant was well aware that the room was covered by CCTV cameras and in his view, an intention to deliberately kick and hurt a detainee, as alleged by the Department, would constitute an act of supreme stupidity. 143 In terms of the applicant's conduct, Mr Gibian stated the Commission could not assume that a youth officer with 14 years' service would act in such a manner. Simply put, he contended the evidence did not support the finding made by the Department that contact was made by the applicant or that WW was hurt in any way. In support of that contention, Mr Gibian stated the following: · In evidence before the Commission and in his interview with Ms Klaassen, the applicant has consistently stated he "flung his leg out to create space" and believed he made no contact with WW. · The CCTV footage is inconclusive as to whether any contact was made with WW. He contended a close viewing of the CCTV footage demonstrated that it was possible to see the whole of the applicant's shoe at all times. Accordingly, if the applicant's white shoe was viewable at all times, it was impossible that contact was made with WW above the bottom of his long and baggy shorts. · The two youth officers who observed the incident did not see any contact made between the applicant and WW. In that regard, Mr Fry's evidence was, at most, the applicant may have made contact with the lower part of WW's shorts and with respect to Mr Minney, who entered the room immediately prior to the incident occurring, he did not see any contact made or believe any contact had been made. · The detainee LI who had the most direct view of the incident had described the incident as "a little kick in the side of the leg" and "it wasn't near WW's vital areas or anything". In relation to the evidence of other detainees, Mr Gibian stated their evidence could not be accepted as reliable on the grounds that none had a direct view of the incident. · The assertion by WW that the applicant kicked him with the force equivalent of kicking a soccer ball was both fanciful and symptomatic of his exaggeration of the entire incident. Given where the applicant was seated, it was unlikely the applicant could have reached WW's genitals from that position, let alone apply any substantial force. He also contended WW's exaggeration of the incident was consistent with the opinion held of him by Mr Minney who stated in his evidence that WW likes to "muck around" and had a tendency to play jokes on staff including pretending to be hurt by them. Detainee LI had described WW as an "attention seeker" and "drama queen". Moreover Mr Hockley, the Unit Manager of the Bouddhi Unit gave consistent evidence in relation to WW. He regarded WW as "high maintenance" and "a fair bit of trouble" capable of "inciting other detainees to be disobedient", and being "subversive". 144 Mr Gibian also submitted the reaction of everyone in the TV room was not consistent with the applicant having kicked WW as alleged. In that regard, no one reacted in any way and the evidence of Mr Fry and Mr Minney was that WW did not look as if he had been hurt at all or was in pain. He contended WW was pretending to be affected by the incident and was "putting on a show". Detainee LI had also suggested WW was "just putting it on and trying to get attention". 145 Mr Gibian contended the evidence of both JH and AB was unreliable on a number of grounds, including the fact they were not interviewed until 12 days after the alleged incident. In his view, it was inevitable the matter would have been discussed at length between the detainees and on that basis, their accounts of the incident were contaminated. In that regard, he submitted that in cross examination, AB admitted he had not observed the incident at all. He contended AB, who had previously described the applicant jumping off the chair and "standing up off the chair when he kicked him", had given Ms Klaassen a "fanciful and utterly exaggerated account that is inconsistent with the CCTV footage and the account of any other person. In cross examination, AB said he gave Ms Klaassen a false account because "I heard it from a like, people, like, people in my unit that he kicked him in the nuts". AB could not recall from whom he had heard this story but had said "everybody in the unit was talking about it, heaps of people were talking about it". 146 With reference to WW's allegation that prior to raising his leg, the applicant had said to him words to the effect of "do you want your balls where your mouth is?", Mr Gibian submitted the applicant denied that statement. He submitted the recollection of WW was not credible and accordingly, should not be accepted by the Commission. He contended WW's evidence that the applicant's actions came as a complete surprise and nothing had occurred immediately prior to the incident to make him think he may be kicked, was utterly inconsistent with the suggestion that the applicant had made the threat as alleged. 147 In relation to the incident, Mr Gibian stated it was clear the applicant had raised his leg whilst WW was standing in front of him without any intention to connect with him or cause harm or injury to him. It was his submission that the evidence in this matter supported a finding that the applicant either made no contact with WW or, in the alternative, made some minimal contact with his leg inadvertently and without knowing that he had done so. 148 Mr Gibian submitted the allegation of misconduct was grounded in the findings of Ms Klaassen that an assault had occurred. In that regard, he contended an assault involved an act by which a person intentionally or recklessly applied unlawful force to another person. A person must have actually averted to the risk and chosen to ignore it: Valance v The Queen (1961) 108 CLR 56. In this matter, there was no evidence to suggest that the applicant averted to the risk of making contact with WW and chose to ignore it. Moreover, the Department had not demonstrated the applicant intentionally or recklessly made contact with WW. He conceded that an assault may occur, in a technical sense, as a result of a very slight contact with another person. Against that backdrop, he further submitted if the extent of any assault was limited to a slight or inadvertent contact with WW then the finding made by the Department that misconduct based on an assault by kick cannot be sustained. 149 Mr Gibian submitted that in the event the Commission formed the view the misconduct, as alleged, occurred, then it must consider whether the sanction of dismissal was warranted in all the circumstances. Further, in the case of a dismissal pursuant to the Public Sector Employment and Management Act, the Commission is required to consider whether other disciplinary measures available could have been applied: Director of Public Employment v Public Service and Professional Officers' Association Amalgamated Union of NSW (on behalf of Brown). Mr Gibian also referred to the principles to be considered when assessing whether misconduct was sufficient to warrant summary dismissal identified by Connor C in Corbeski v Bluescope Steel (AIS) Pty Limited [2006] NSWIRComm 1170 at [41]. 150 With reference to the incident, Mr Gibian stated the applicant had accepted from the outset that he was not entirely without fault. He referred to the applicant's interview with Ms Klaassen where he accepted that he may have been reckless in raising his leg. However, in his statement filed in these proceedings the applicant had accepted that it was "probably a silly thing to throw out my leg in the manner I did". Notwithstanding that statement, he said the applicant had consistently said he did not intend to make any contact with WW and there was no malice involved. Further, both Ms Klaassen and the Department had accepted that consistent with the applicant's evidence, he did not intend to make contact with WW or cause injury. 151 Mr Gibian submitted the most that could be said in relation to the conduct relied upon by the Department to dismiss the applicant was that he lifted his leg in response to the annoying and harassing conduct of WW and unintentionally made contact with him. In the circumstances of this case, the applicant's conduct did not warrant dismissal when viewed against the following factors: · the applicant's 14 years of unblemished service with the Department; · the applicant's act in raising his leg was at most a momentary reaction and it could not be said to have involved any element of premeditation; · the act of the applicant raising his leg was prompted by the annoying and harassing conduct on the part of WW and his repeated refusal to comply with directions to move away and give the applicant space; · on any version of events, no lasting injury was incurred by WW as a result of the incident; · arising out of the incident no criminal investigation was pursued nor were any charges laid against the applicant; · the incident was entirely out of character of the applicant who was otherwise regarded as an experienced and reliable employee of the Department. 152 Mr Gibian submitted the Commission was obliged to determine whether the termination of the applicant's employment was harsh in regard to the applicant's personal economic situation, as well as whether dismissal was a disproportionate penalty in regard to the misconduct alleged: Byrne & Anor v Australian Airlines Ltd (1995) 61 IR 32 at 72, Pacific Power v Crump (1993) 48 IR 296, Wells v Commissioner of Police (2000) 100 IR 106 at 118 and AWU (NSW) (on behalf of Stojanovski) v Bluescope Steel (AIS) Pty Ltd (2004) 137 IR 211 at [30]. 153 Mr Gibian also submitted that summary dismissal on the grounds of misconduct can have serious and sometimes long term implications for the employee: New South Wales Fire Brigade Employees' Union (on behalf of Natoli) v New South Wales Fire Brigades [2005] NSWIRComm 440 at [222] and Franklins Ltd v Webb (1996) 72 IR 257 at 261: 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. 154 Mr Gibian submitted the applicant's dismissal was harsh, that he had worked for more than 14 years with the Department and had intended to continue working within Juvenile Justice until his retirement. Further, given the applicant's age, residential location and having regard to the current economic circumstances, the applicant was likely to find it very difficult to find employment, particularly employment with comparable remuneration and security to his former position. The applicant had also suffered significantly from symptoms of anxiety and depression as a result of the disciplinary investigation conducted by the Department and his dismissal. He and his family had suffered financially and the Category One notification to the Commission for Children and Young People had narrowed his future employment options. 155 Simply put, it was Mr Gibian's submission that dismissal was a harsh penalty, having regard to the personal circumstances of the applicant, the history of his employment and the availability of alternative penalties under the Public Sector Employment and Management Act. Mr Gibian sought an order that the applicant be reinstated to his former position as youth officer. In support of that position, he stated there was no suggestion in this matter that reinstatement was impracticable. In that regard, he referred to the evidence of Mr Hockley, the Unit Manager of the Bouddhi Unit, who had worked with the applicant for over ten years and in cross examination had described the allegation that caused the applicant's dismissal as being "entirely out of character". Mr Hockley also expressed confidence that if the applicant was reinstated, he would not be subject to an allegation of the type that led to his dismissal "for another ten thousand years". It was also Mr Hockley's evidence that the applicant was a good worker. 156 The applicant also provided a number of character references from former and current colleagues. Mr Gibian stated the applicant also sought a direction or recommendation from the Commission that the Department withdraw its notification to the Commission for Children and Young People. In that regard, he referred to the guidelines published by the New South Wales Ombudsman and the Commissioner for Children and Young People and contended those guidelines made it clear that the use of physical force, where that force is trivial or negligible, is not reportable conduct. 157 In the alternative, should the Commission be satisfied the alleged assault did not occur or that any use of physical force was trivial or negligible, the basis of the Department's notification disappears. In those circumstances, the Commission should recommend or direct that the notification be changed from a Category One to a Category Two notification. See Sexton v Public Employment Office by its Agent the Director General of the Department of Juvenile Justice [2005] NSWIRComm 1172. For the Respondent 158 Mr Murphy commenced his submissions by acknowledging the importance of the statutory scheme set out under the Public Sector Employment and Management Act to deal with allegations of misconduct. However, it was also his submission that the Commission should acknowledge the wider statutory scheme in which the Department operates as the provider of care to detainees. He referred to the Client Protection Policy annexed to Ms Christoph's affidavit where under the heading, Principles for Child Protection Intervention, the Policy states " The safety, welfare and wellbeing of the child or young person are paramount". Mr Murphy stated the Client Protection Policy was based on best practice principles. He subsequently referred to cl 4, Client Protection Principles, which impose obligations on employees working in Juvenile Justice Centres. He said the Client Protection Principles refer to the objects of the Children (Detention Centres) Act, especially subsection 4(2)(a), which states, "the welfare and interests of persons on remand or subject to control shall be given paramount consideration". Further, the Principles state there is an obligation on each employee "to maintain the physical, psychological and emotional wellbeing of detainees". 159 Mr Murphy stated the principles relevant to the work of all employees of the Department were set out in s 4.2 of the Children (Detention Centres) Act as follows: (a) The Department aims to provide an environment that protects the safety, welfare and well-being of clients. Its services and facilities aim to foster the health, developmental needs, spirituality, self-respect and dignity of its clients, (b) Employees must provide clients with such protection as is reasonable in the circumstances and necessary for the safety, welfare and wellbeing. ... (f) If a client becomes subjected to abuse or neglect, or is at risk of harm, employees are to respond with such measures as are reasonable in the circumstances and necessary to re-establish or promote the safety, welfare and wellbeing of the client. (g) Employees have statutory and other responsibilities to report their concerns if the safety, welfare or wellbeing of clients has been compromised. 160 Mr Murphy further submitted that cl 5.2 of the Client Protection Principles imposes a common law and statutory duty of care toward clients of the Department on employees in the following terms: (a) The general nature of the work of many employees, as well as specific legislative provisions, requires that some responsibilities that would normally rest with a parent, guardian or caregiver fall to employees. Where it is reasonably within their power, employees must look after the safety, welfare and well-being of clients. (b) Failure of an employee to discharge his or her duty of care or otherwise act within the law leaves the employee individually or the Department (or both) open to criminal or civil action. 161 Mr Murphy subsequently referred to the indicators of physical assault set out under cl 7 of the Client Protection Principles as follows: 7.1 Physical assault refers to the assault and/or non-accidental injury and/or harm to a child by a parent, caregiver or another person responsible for the child or young person. Physical assault is a hostile act towards a child. The assault occurs regardless of the adult's intention to harm and regardless of the child or young person's consent. Assault can include pushing, shoving, throwing objects, hitting or threatening behaviour (either verbal or actions) that causes the child to fear that an assault is likely to occur. 7.2 Physical assault under common law principles, must include all three of the following elements: · It is an act committed on or towards a child, and · it involves either the application of force to a child or an act that causes a child to think that immediate force will be used on them, and · it is either hostile or reckless (a reckless act is one where a person would reasonably foresee the consequences of or likelihood of inflicting injury or fear and ignores the risk). 7.3 Actual physical harm does not have to occur in order for an assault to have occurred, ie the child does not need to be hurt or injured. Even if the employee did not intend to make contact with the child, it may still constitute an assault if the circumstances indicate the act may have been reckless (ie being a reasonably foreseeable consequence of their action). Physical contact which is an inevitable or accepted part of everyday life does not amount to an assault. 162 Mr Murphy also subsequently referred to the indicators of neglect set out under cl 8 of the Client Protection Policy as follows: 8.1 Neglect occurs when a child is harmed by the failure of a person whose job includes care, responsibilities towards a child, to provide basic physical and emotional necessities of life, including failure of such a person to provide or arrange for the provision of adequate and proper food, nursing, clothing, medical attention or lodging for a child in that person's care. 8.2 Neglect can be an ongoing situation of repeated failure by a caregiver to meet a child's physical or psychological needs thereby causing harm to the child, or placing them at risk. It can also occur as a single significant incident where a caregiver fails to fulfil a duty or obligation resulting in actual or potential harm to a child. For example, an allegation that an employee left a young child unattended in a car for an extended period on a hot day would constitute an allegation of neglect that is notifiable to the Ombudsman, as the potential for the child to suffer from heatstroke is a reasonably foreseeable consequence of the employee's conduct. Evidence of actual harm or injury to the child in these circumstances is not a prerequisite for making a sustained finding in relation to the allegation. ... 8.5 Neglect checklist: When deciding whether or not an employee's alleged conduct is notifiable to the Ombudsman as an allegation of neglect consider: · were the child's basic physical or emotional needs not met by the employee? or · did the employee fail to fulfil a duty or obligation arising through statute, common law or policy? or · did the alleged omission cause or have the potential to cause harm to the child. 8.6 In the context of the department's services generally, neglect may occur if an employee fails to appropriately supervise a client, or fails to provide or arrange for medical treatment or educational programs. 163 Mr Murphy referred the Commission to the objects of the Children (Detention Centres) Act 1987: 4 Objects of Act (1) The objects of this Act are to ensure that: (a) persons on remand or subject to control take their places in the community as soon as possible as persons who will observe the law, (2) In the administration of this Act: (a) the welfare and interests of persons on remand or subject to control shall be given paramount consideration. He further submitted the Objects of the Act make it very clear that the welfare and interests of persons on remand are very important. Mr Murphy also referred to Cl.49 under the Children (Detention Centres) Regulation 2005 which states: 49 Order generally ... (3) A juvenile justice officer is not to engage in behaviour toward a detainee: (a) that is intimidating, humiliating, demeaning, threatening or oppressive, of (b) that otherwise constitutes an abuse of the officer's authority. 164 Mr Murphy submitted that the statutory and policy constraints set out within both the Children (Detention Centres) Act and the Children (Detention Centres) Regulation distinguish this case from other cases involving dismissal for assault, such a Burge v BHP Steel Pty Limited (2001) 105 IR 325. Mr Murphy submitted the Commission should give appropriate weight to the statutory policy constraints where both the Department and the applicant owed special statutory and other duties of care. 165 Mr Murphy submitted the applicant was dismissed as a result of a finding by the Director General that he had committed misconduct, a finding that was also drawn by Ms Klaassen, an independent investigator. He submitted that whilst the Commission was not bound by the findings of the investigator, it must give those findings appropriate weight and consider all the evidence including the CCTV footage that was played a number of times during these proceedings. 166 Mr Murphy submitted Ms Klaassen expressed a view the CCTV footage was inconclusive as to whether contact was made by the applicant. However, notwithstanding that element of doubt, Ms Klaassen made the finding he did make contact based upon all of the evidence that was before her at the time. Mr Murphy urged the Commission to closely examine the CCTV footage and make its own finding whether contact actually occurred. He submitted the CCTV footage showed the applicant's foot "flash up" and the immediate reaction of WW to that foot action. He further stated it was entirely open and appropriate for the Commission to make a finding based on the CCTV footage alone, that the applicant's foot made contact with WW. If the Commission found contact had been made, then obviously the applicant had assaulted WW. However even if contact was not made out, consistent with the Client Protection Policy, the Commission should find that an assault had occurred. 167 Mr Murphy submitted the applicant had a strong motive for maintaining his position that he did not make contact with WW. However, it was WW's evidence that forceful contact was made and his version of events was supported by other direct witnesses. The applicant's argument that no other youth officers in attendance saw the entire incident "doesn't mean that it didn't (occur)". Simply stated, it was Mr Murphy's submission that the overwhelming evidence supported a finding that contact between the applicant's foot and WW's testicles did in fact occur. 168 Mr Murphy acknowledged Mr Gibian had sought to discredit those who had witnessed the incident, subsequently interviewed by Ms Klaassen and brought forward to give evidence in these proceedings. Mr Murphy referred to the applicant's initial statement prepared on 7 February 2008 where he talked about WW "getting into his personal space", and subsequently stated "at this point I flung my right leg out" and later said "at this time no contact was made with detainee WW". With reference to those statements of the applicant, Mr Murphy submitted that the notion of flinging his leg out was entirely consistent with what was shown on the CCTV footage. Mr Murphy also recalled the applicant had stated on 7 February 2008 "again, at no time contact was made was there any intent or malice". However, when Ms Klaassen interviewed the applicant on 27 February 2008, his story changed from his initial way of describing what had occurred. During that interview, the applicant stated he had asked WW several times to move away so that he could regain some of his personal space. 169 Mr Murphy referred to the statement of interview where the applicant was initially recorded as saying, "I just threw me leg out to try and establish an area of space". Later, he corrected the word "threw" and replaced it with the word "raised". He further submitted the term "I raised me leg" is a complete misdescription of what the applicant did according to the CCTV footage. Mr Murphy submitted that the applicant did not fling his leg out nor did he raise it. Rather he kicked out. Mr Murphy also referred to the record of interview between the applicant and the Director General conducted on 19 May 2008, where he stated in reference to the CCTV footage, "yes, I did throw my leg out". He later described his actions as "irrational and reckless". During his interview with Mr Muir, the applicant maintained his view that he had made no contact with WW. 170 Mr Murphy referred to the applicant's answer to question 18 posed by Mr Muir where he stated: Like I said I'm not here to defend my actions, I know and I understand that they were reckless and inconsiderate and at the time totally irresponsible but like I said, I'm not here to defend that. I'm defending the allegations made against me from WW. ... I suppose in defence of my actions of lashing out with my foot, like I said obviously you've seen the CCTV, as I walk into the area WW was all over me basically, you know wanting to shake my hand, pat me on the back. Mr Murphy also drew the Commission's attention to the applicant's final comments in relation to question 18 where he conceded his actions " were reckless and undue and that's not my nature ". 171 Mr Murphy contended the evidence of detainee witnesses was that the applicant had made contact with WW's groin area. He urged the Commission to accept that none had attended these proceedings willingly, as they were all required to be summonsed to appear. No witness had any particular axe to grind with the applicant and indeed, LI made it very clear he had a favourable view of him. His evidence was that he saw contact in the leg area above WW's shin. If that was so, the applicant's actions constituted an assault. However, if the Commission is not prepared to form that view, it is certainly open to agree with the findings of Ms Klaassen that even if there was not an intention to harm or make contact, the contact did in fact occur and that conduct constituted an assault. 172 Mr Murphy urged the Commission to make its own assessment as to the credit of the detainee witnesses in these proceedings. He submitted that the evidence of both WW, JH and LI was that immediately prior to the kick, the applicant said words to the effect "do you want your balls in your mouth" or "do you want your balls through your mouth". Despite the applicant's denial, Mr Murphy submitted those statements were: Evidence of intent to do what we saw him do on the footage and it disposes of the contention that what happened was some lashing out or flinging out or raising to in some way establish some personal space. That proposition in itself has certain difficulties about it when you see what happened. 173 Mr Murphy further contended that if the Commission was to accept the applicant had made statements to the effect as outlined in the evidence, his defence "is completely destroyed, in my submission." He further contended the applicant had conceded as much. 174 With reference to the applicant's contentions concerning witness collaboration, Mr Murphy said it was never squarely put to JH that the statements alleged to have been said by the applicant had been put to him by others. Those statements were clear in the mind of WW, who was the victim, and if the Commission was in doubt, it should carefully consider the evidence of LI who was favourable to the applicant, to the extent that although he did not give evidence corroborating the kick he certainly gave evidence that he heard Mr Kerr state words to the effect "do you want your balls in your mouth". In his view there was no reason for LI to confirm the applicant had stated those words, unless he in fact did. 175 Mr Murphy reminded the Commission LI thought WW had some reason to make things up, "carry on" and to be a drama queen as a result of the incident, irrespective of whether or not he was kicked. Accordingly, the evidence was that immediately before kicking WW, the applicant had said to him the words as alleged. He submitted that if that evidence is accepted, it is evidence of an intent to lash, fling or raise his leg to gain some personal space. 176 Mr Murphy also submitted the applicant's statement in cross examination that he had felt threatened by WW's actions was a recent "invention" and was not made out in the interviews conducted by Ms Klaasson and Mr Muir. In Mr Murphy's view, the evidence given on 16 February 2009 that he had felt threatened was an attempt by the applicant to justify what had occurred. Moreover, in the event the applicant had felt threatened by WW's actions, he was obliged to follow the Department's Authority to Use Force Policy which in part, prohibits the striking of a detainee by an officer when using force. However, Mr Murphy contended this was not the case and the CCTV footage showed that while WW may have been annoying the applicant and doing "a bit of shadow boxing", there was no evidence that WW was threatening him. 177 According to Mr Murphy, the applicant told WW to move away and when he did not, he said, "do you want your balls through your mouth" and subsequently proceeded to kick him. If that was the case, the Commission should find that the dismissal of the applicant was warranted and was the only decision the Director General could make. 178 Mr Murphy submitted the applicant's 14 years of experience "operates against him" because with that length of experience, he should know his conduct on 6 February 2008 was entirely unacceptable and in the light of that knowledge, he had sought "to diminish or downplay the seriousness of what he actually did". 179 Further, Mr Murphy contended the applicant could not deny that he kicked WW because the CCTV footage showed otherwise. While it was open to the applicant to argue no contact was made, the evidence that he did was overwhelming, particularly in view of what WW and others had said the applicant stated shortly before the incident. 180 Mr Murphy submitted the evidence was that contact had been made. However, in the event there was some doubt about whether contact was made, the conduct of the applicant was a sufficiently reckless act to constitute an assault. 181 In conclusion, the Commission should closely consider the evidence of JH and LI concerning the applicant's statement to WW immediately before the incident and the CCTV footage to find that the applicant did in fact assault WW on 6 February 2008 and dismissal was the only outcome available to the Director General. Reply for the applicant 182 Mr Gibian submitted the Commission must be satisfied the conduct relied upon by the Director General in fact occurred. He contended that in the absence of direct evidence, the documentation before the Commission revealed the Director General's conclusion the alleged conduct occurred was based on the findings of the investigator - an unintentional contact with WW in the groin area. Moreover, the Department's case that in the event no contact was made, the applicant's conduct nevertheless constituted an assault by way of an apprehended fear by WW was inconsistent with WW's evidence that he was not concerned with the applicant's conduct immediately prior to the incident. 183 Mr Gibian also submitted the only witness to support the allegation that contact was made was JH. AB's evidence was entirely unbelievable and incapable of acceptance by the Commission. He further contended that given the delay between the incident occurring and the commencement of the investigation, there was a strong probability the matter had been discussed between detainees and, accordingly, the Commission should adopt a cautious approach to considering their evidence. 184 Mr Gibian contended the applicant's use of words such as flung, raised and lashed, in connection with the movement of his leg, were not readily or significantly different in meaning. He submitted both the investigator Ms Klaassen and the Director General had accepted the applicant did not mean to make any contact with WW nor did he believe that he had done so. In conclusion it was Mr Gibian's submission that the question as to whether the dismissal was warranted must be considered in that context. 185 Mr Murphy submitted the applicant's action in kicking WW was entirely consistent with his statement "Do you want your balls through your mouth" which at the time WW "took it as a joke". Accordingly, WW was not forewarned about the kick because he believed the applicant was joking at the time. Consideration Background 186 This matter is brought under Pt 6 Ch 2 of the Industrial Relations Act. The Commission is required to determine whether the allegation has been made out on the evidence. If so, it is required to determine whether the disciplinary action taken by the Director General was harsh, unjust or unreasonable having regard to the statutory scheme provided by the Public Sector Employment and Management Act. 187 The applicant sought reinstatement or, in the alternative, the maximum compensation available under the Industrial Relations Act. Certain recommendations were also sought regarding the Department's Category One notification made in accordance with the Commission for Children and Young People Act. 188 The incident was subject to independent investigation by Ms Klaassen of GVK Consulting. Her detailed report and findings, together with staff and detainee records of interview were contained in the evidence of Ms Nicole Christoph, the Department's Employment Relations Officer. Ms Christoph, Ms Klaassen and the Director General were required to give evidence. 189 The Director General is obliged to deal with allegations in accordance with the statutory scheme. Section 46(1) of the Public Sector Employment and Management Act requires the Director General to decide to deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, or alternatively, take remedial action. The then Director General decided to pursue the allegation as a disciplinary matter and appointed an independent investigator to investigate the incident. Her report and findings were given to the Director General and subsequently the applicant. 190 For present purposes, s43 of the Public Sector Employment and Management Act defines misconduct to include a contravention of any provision of the Act or regulations or the performance of duties in such a manner as to justify the taking of disciplinary action against an officer. In the event the Director General is satisfied that misconduct has been established to the requisite standard, he has absolute discretion to decide the appropriate form of disciplinary action to be taken in the circumstances. 191 Disciplinary action is defined under s42 and contains a hierarchy of measures ranging from a caution or reprimand through to dismissal from the Public Service. In this case, the Director General considered dismissal was the appropriate action to take in the circumstances that existed at the time the decision was made. 192 The task for the Commission is to consider whether the alleged misconduct did in fact occur and, if so, whether the disciplinary action taken by the Director General to dismiss the applicant was in all the circumstances of the case, harsh, unjust or unreasonable. That examination may also include consideration as to whether alternative disciplinary action was available within the hierarchy of measures provided under the statute. Standard of proof 193 The relevant standard of proof where an allegation of misconduct has been raised is the "Briginshaw" standard, that is, on the balance of probabilities: Briginshaw v Briginshaw (1938) 60 CLR 336. Where an assault is alleged, the Commission is required to be reasonably satisfied on the balance of probabilities that the conduct occurred. The decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR at 449-450 per Mason CJ, Brennan, Deane and Gaudron JJ provides a clear statement on the Briginshaw principle: 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. 194 The fact that the Department bears the onus of proof was not challenged. Whether the misconduct alleged in fact occurred? Investigation report 195 Ms Klaassen's report included an analysis of the evidence. I note the Commission is not bound by the determination of facts made by an investigation initiated by an employer. The question whether the disciplinary action imposed was harsh, unjust or unfair is to be determined on the basis of the circumstances in existence at the time the decision was made by the Director General to dismiss the applicant. However, I have considered her report together with the evidence led by both sides and note the following observations made in relation to the incident: He queried how WW could have reported experiencing four or five minutes of pain, as he did not believe that any physical contact occurred. In relation to WW's claim that he was kicked and that Lloyd Kerr's actions were deliberate, Lloyd Kerr repeated that his actions were accidental. He later added: I maintain I didn't, didn't make contact and I still believe he was acting out. Just the, the viewing of the, of the video, the reaction of his peers, knowing W as I did, briefly, how he acts out. ... I did throw my leg out yes, but I don't believe I made contact with him, and that's pretty much, well in a nutshell, so. ... I really can't go over everything repetitively to try and justify my side of it, you know. Like you've spoken to several other detainees. Whether they've collaborated and joined stories, I'll never know. So like I said, it's just me against the world, you know. And I've been in this situation before and I've got crucified, so. Like I said, that's, that's when my gut feeling is anyway, that's why I'm feeling uneasy with, not because of what I did, or didn't do. Yeah basically the outcome. Did a kick occur? Based on the admissions made by Lloyd Kerr, the evidence given by WW and the other detainees and an inspection of the CCTV footage, it is clear that Lloyd Kerr did raise his right foot and kick WW at a time when he (Lloyd Kerr) was seated at the end of a row of chairs near the television set in the lounge room in the Bouddhi Unit at the Frank Baxter Juvenile Justice Centre. WW was standing in the immediate proximity in front of Lloyd Kerr at the time. The kick was not directed toward any other detainee. Was contact made and if so, where did the kick connect? There was conflicting evidence in relation to this matter. Detainees WW, AD, JH and CJ maintained that Lloyd Kerr kicked WW in the testicles and that pain was inflicted upon WW. Lloyd Kerr maintains that no contact was made. Youth Officers Gregory Fry and George Minney asserted that they did not see whether or not Lloyd Kerr's foot connected with WW. Youth Officer Fry believes that if any contact was made, it was in the region of WW's mid thigh on or around his shorts. He also stated that from where he was sitting, he saw Youth Officer Kerr's leg descend from between the detainees' legs. Detainee LI asserted that the kick landed on WW's inner thigh, and that he feigned an injury. It is also noted that by his own admission, LI has poor eyesight. The reliability of his evidence in relation to what he saw it is therefore in some doubt. The CCTV evidence is inconclusive in regard to whether contact was made, and if so, what part of WW's body was contacted. Having considered all of the evidence, it is my view on balance that Lloyd Kerr did kick WW in the testicles, and that the impact of the kick was such that it immediately caused WW to bend forward and grasp his groin area before moving off to the side and becoming vocal towards Lloyd Kerr. It is my view that given WW's reputation for attention seeking and acting out behaviour, at the time of the incident both staff and detainees were of the view that his reaction was feigned and that no contact occurred. I believe that WW was genuine in his response. It is also clear from the evidence of each of the witnesses that WW was both shocked and humiliated by the actions of Lloyd Kerr. Did Officer Lloyd Kerr's actions constitute an assault? Lloyd Kerr has repeatedly and convincingly stated that his actions were unintentional and that he was merely attempting to establish personal space in the face of taunting and jockeying by WW. While I accept that Youth Officer Kerr may not have intended to harm detainee WW by his actions, in considering whether or not the admitted raising of his leg constituted an assault, I have had regard to the definition and guidelines provided by the NSW Ombudsman, namely: Physical assault refers to the assault and/or non-accidental injury and/or harm to a child by a parent, care giver or another person responsible for the child or young person. Physical assault is a hostile act towards the child. The assault occurs regardless of the adult's intention to harm and regardless of the child or young person's consent. Assault can include pushing, shoving, throwing objects, hitting, or threatening behaviour (either verbal or actions) that causes the child to fear that an assault is likely to occur. I have also had regard to the common law principles identified by the NSW Ombudsman, that assault contains the following elements: a) it is an act committed on or towards a child; and b) it involves either the application of force to a child or an act that causes a child to think that immediate forces will be used on them; and c) it is either hostile or reckless (a reckless act is one where a person would reasonably foresee the consequence of or likelihood of inflicting injury or fear, and ignores the risk). It is my view that while Lloyd Kerr may have not engaged in a hostile act toward the detainee, he showed a high degree of recklessness in kicking out or raising his leg toward WW in circumstances where WW was standing so close to him and where it was reasonably foreseeable that the kick would connect with WW and that he would be injured. The NSW Ombudsman also notes that actual physical harm does not have to occur in order for an assault to have occurred Were there any aggravating circumstances? Detainee WW has alleged that Youth Officer Lloyd Kerr stated words to the effect of " Do you want your balls where your mouth is ?" Detainees CJ, Detainee LI and former detainee JH all corroborated that words to a similar effect were uttered. The statement was denied by the Youth Officer Lloyd Kerr. No other witnesses who were interviewed reported hearing the statement, or any other conversation between Kerr and WW prior to the incident occurring. On balance, I find this aspect of the complaint is sustained. Factors in mitigation Youth Officer Lloyd Kerr has maintained that he did not intend to harm detainee WW. While I do accept that he did not intend for his foot to connect with detainee WW, nor did he intend to cause injury, I hold the view that his actions were reckless. In considering mitigation, I note Unit Manager Paul Hockley's evidence that the incident was that of character for Youth Officer Lloyd Kerr. Summary In summary, I find that Lloyd Kerr did assault detainee WW at Frank Baxter Juvenile Justice Centre on 6 February 2008 by kicking him in the groin area. Findings in relation to discipline and reporting In relation to disciplinary action, the findings are that on or about 6 February 2008, Lloyd Kerr assaulted detainee WW at Frank Baxter Juvenile Justice Centre. In relation to the requirement of reporting to the Commission for Children and Young People (CCYP), the findings are that the allegation is sustained and there is an obligation to notify the outcomes of these relevant employment proceedings to the CCYP. 196 When interviewed by Ms Klaassen, the applicant denied he had made a statement to the effect, "Do you want your balls where your mouth is?" Rather, he maintained he only told WW to get out of the way so he could regain his personal space. The applicant acknowledged WW stated he had been kicked in the testicles immediately after the incident. His response was, "Don't be silly W, get up". 197 The applicant agreed his leg lift movement was quite rapid, but denied WW appeared to be in pain or that any contact was made. When interviewed by Ms Klaassen, he accepted his conduct was reckless, but maintained he did not wish to make contact or cause WW any harm. In the event contact was made with WW, it was accidental. He further stated he had expressed sorrow and remorse in his initial report concerning the incident because "he was under suspension". 198 From the evidence, it is clear neither Mr Minney nor Mr Fry saw the applicant's leg make contact with WW. Mr Fry's evidence was that if contact was made, it was to WW's mid thigh or the lower part of his baggy shorts. Mr Minney contended WW liked to joke and muck around with staff. 199 WW's evidence was that the incident had taken him by surprise. It was a swift kick. Following the kick, he held the pain in as he walked to pick up a broom. He thought the applicant was having a joke when he made his threatening statement to him. When he returned to the Unit after a period of confinement, he admitted talking to JH about what had occurred. He could not recall talking to AB or CJ about the incident. He subsequently agreed he had told JH that the applicant had said the words "do you want your balls where your mouth is". 200 In cross examination, detainee AB's evidence was that he did not witness the kicking incident. This revelation was contrary to AB's interview with Ms Klaassen. However, he did see WW lying on the floor holding his groin area. He later saw WW grab a broom before he was restrained and removed to confinement. 201 The evidence of JH was that it was probable he had discussed the incident with other detainees but could not remember speaking to anyone in particular. Moreover, it was not unusual for WW to pester youth officers. He recalled the applicant had told WW to move away on at least one occasion. JH denied WW told him the applicant had said to him the words "do you want your balls where your mouth is". He was also unsure whether WW had told him the gist of that exchange. In any event, he was emphatic he heard the applicant make the statement to WW. 202 JH agreed that when the applicant raised his leg, it was a quick movement. At the time he was looking at both WW and the applicant. He stated WW was wearing baggy shorts and although he thought contact was made, he was not certain, although he did contend contact was made around the area of WW's groin. However, he also agreed that contact could have been made with WW's leg. 203 Detainee LI's recollection of the events surrounding the incident were limited. However, he did recall the applicant stating words to the effect, "If you want your balls to be where your mouth is". He subsequently saw a short kick to the inner thigh or shin area. There was no contact with WW's groin area. LI also considered WW feigned the injury. 204 I have examined the CCTV footage many, many times. I note Ms Klaassen's view that the CCTV footage was inconclusive. On my analysis, the CCTV footage captures the leg of the applicant rise very quickly and immediately thereafter, WW falls towards the floor holding his groin area. Force followed the threat. In that regard, the applicant's conduct is consistent with his alleged statement to WW, "do you want your balls where your mouth is". Moreover, the applicant's swift leg action, in my view, is inconsistent with the proposition that he merely "raised", "threw" or "flung" his leg to gain some personal space from WW. 205 Notwithstanding the nature of the CCTV footage, it is my finding that on the balance of probabilities, the applicant did kick WW in the upper thigh or groin area with a degree of force that caused him to bend forward and fall to the ground holding his groin. I have viewed this CCTV footage many, many times. 206 Throughout his interview with Ms Klaassen, the Director General and in evidence in these proceedings, the applicant sought to maintain his innocence. In Lawrence v Catholic Education Office, Sydney [2002] NSWIRComm 115 at 77, Schmidt J considered a similar circumstance: … Employers who have to determine whether or not misconduct has occurred, usually must do so without the assistance provided by access to evidence and cross examination about the events in question, given in a court in which the criminality of such conduct has been determined against the employee by a jury. In circumstances where allegations of misconduct arise, it is commonplace for the employee concerned to vehemently protest his or her innocence. So, too, do those charged with and even those convicted of crimes. Nevertheless, decisions must be made by employers, as to whether or not such protestations are to be accepted. The continued making of such protestations, cannot of itself lead to the conclusion that misconduct has not occurred. 207 Based on the totality of oral and written evidence led in proceedings and a detailed and careful consideration of the relevant CCTV footage, I am satisfied the alleged conduct took place and had a basis in fact. What took place was, as acknowledged by the applicant, reckless conduct. In an environment characterised by a threatening statement, the applicant's subsequent swift leg movement, it was foreseeable that some contact would be made by the applicant causing possible injury. 208 I have also taken the view the detainee witnesses summonsed to give evidence in these proceedings did so in a truthful and cooperative manner. None appeared to bear any malice against the applicant. Whether the disciplinary action taken by the Director General to dismiss the applicant was, in all the circumstances of the case, harsh, unjust or unreasonable? 209 The Commission's is requireds to determine whether the disciplinary action taken by the Director General was harsh, unjust or unreasonable. It may also consider whether an alternative disciplinary action available under the statute was, in the circumstances, more appropriate. 210 The observations of the High Court (McHugh and Gummow JJ) in Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465 are relevant to the statutory test of harsh, unjust or unreasonable: 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. Continuing at 467, their Honours further observed: In Bostik (Australia) Pty Ltd v Gorgevski [No 1] (1992) 36 FCR 20 at 28, a decision of the Full Federal Court, Sheppard and Heerey JJ said of the phrase "harsh, unjust or unreasonable" as it appeared in the Manufacturing Grocers Award 1985: "These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct". 211 Clearly, an assessment whether particular conduct is serious misconduct must take into consideration the circumstances of the employment type. Here, the statutory scheme and other specific laws and policies are directed to control the risks governing the applicant's work in protecting the safety and wellbeing of detainees under care. As the Full Bench in New South Wales Nurses' Association (on behalf of Colin Prior) v South Eastern Sydney & Illawarra Area Health Service [2007] NSWIRComm 164 observed: 11 The Court of Appeal in Samad v Public Service Board (New South Wales) (1983) 5 IR 464 at 466 said that it is a well established and well known rule of conduct that an assault by an employee of a person under institutional psychiatric care will not be tolerated and that employees who breach this requirement will not be retained in employment. We consider that approach to be correct and applicable in cases such as the present. However, it is also undoubted, and consistent with well established principle, that where an allegation of misconduct is raised as a defence or 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 the allegation shifts from, in this case, the Union to the employer: see Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70; Budlong v NCR Australia [2006] NSWIRComm 288 at [86] - [87] and [100]; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd (2003) 128 IR 37 at [86]; National Union of Workers, NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at [35]; Austin v NF Importers Pty Ltd (2005) 146 IR 113 at [16]. 12 The Full Bench was also taken to decisions of this Commission, the Government and Related Employees Appeal Tribunal ("GREAT") and its predecessor, the Crown Employees Appeal Board, that involved the striking or assault of a patient by a nurse: (see Stewart and Hunter Area Health Service (IRC 5299 of 1998, 11 November 1998, Harrison DP, unreported); HREA on behalf of Drinan v Hunter Area Health Service [2002] NSWIRComm 270; Abdus Samad v Public Service Board (GREAT Appeal No 1395 of 1982, 5 November 1982); Mason (Department of Public Health) v Public Service Board (Crown Employees Appeal Board, 182 of 1968, 14 November 1968)), which take a similar approach to the Court of Appeal in Samad. 212 In assessing whether the disciplinary action was harsh, unjust or unreasonable, the Commission must assess the applicant's conduct against his obligations under the "wider" statutory scheme comprising the Children (Detention Centres) Act 1987, the Children (Detention Centres) Regulation, the Children and Young Persons (Care and Protection) Act, the Occupational Health and Safety Act 2000 and the various departmental policies and procedures pressed in these proceedings, including the Client Protection Policy, Draft Use of Force Procedures, Behaviour Management – Managing Difficult Behaviour Policy and Code of Conduct. The investigation 213 Ms Klaassen investigated the allegation independently on behalf of the Department. In the circumstances of this case, it was submitted that there had been a full and extensive investigation into the allegation made against the applicant. Ms Klaassen conducted a full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances. There is no suggestion there was a lack of procedural fairness in either the process or the procedures applied that led the Director General to choose dismissal as the appropriate disciplinary measure. 214 Ms Klaassen conducted the investigation in accordance with the Procedural Guidelines for Dealing with Misconduct as a Disciplinary Matter under Part 2.7 of the Public Sector Employment Management Act. She set out the relevant facts as to whether, on the balance of probabilities, the applicant engaged in the alleged conduct and expressed an affirmative view that the alleged conduct should be dealt with as a disciplinary matter. 215 Following the completion of the investigation, the Director General wrote to the applicant on 1 May 2008 to advise he had formed the view that he had engaged in the misconduct as alleged: On or about 6 February 2008 you assaulted detainee WW at Frank Baxter Juvenile Justice Centre. 216 The Director General provided the applicant with a full copy of the investigation report and informed him that he was considering imposing disciplinary action within the definitions of "disciplinary action" under s 42(1) of the Public Sector Employment and Management Act. The disciplinary action available ranged from caution or reprimand to dismissal. At this time, the applicant was clearly on notice that his position with the Department was in jeopardy. 217 The applicant was also invited to make a submission and provide any additional information that should be taken into account by the Director General in relation to disciplinary action before a final decision was made. No submission appears to have been made. 218 The decision to dismiss was made after the Director General (and others) had interviewed the applicant on 19 May 2008 and afforded him an opportunity to respond to Ms Klaassen's findings. Following that meeting the applicant wrote to the Director General to offer further explanation concerning his conduct and urged him "to consider some other alternative punishment rather then dismissal". The applicant did not seek to advance anything new by way of evidence in relation to his conduct or to further demonstrate the relevant unfairness of an adverse decision. 219 There was no performance management plan submitted to urge the Director General to consider a less harsh penalty as an alternative to dismissal. Rather, the applicant sought to largely explain how influential WW was within the Bouddi Unit and how, in his opinion, those detainees interviewed by Ms Klaassen had corroborated on what to say about the incident after talking to WW. He also pressed the fact that he had never been disciplined for using excessive force and he regarded his actions on the day of the incident as "irresponsible and stupid". The applicant also repeated his personal plea for the Director General to consider the emotional and financial toll incurred as a result of the investigation. 220 The Director General wrote to the applicant on 9 July 2008 to advise he had decided his conduct warranted dismissal. As the applicant's conduct impacted on the safety and welfare of a young person, the Department was obliged to make a Category One notification under the Commission for Children and Young People Act. 221 In deciding to terminate the applicant, the Director General contended there were reasonable grounds on the information available to him at that time that the applicant was guilty of the misconduct alleged: Byrne v Australian Airlines (1994) 47 FCR 300 at 331 per Beaumont and Heerey JJ and Keely J at 313. 222 Assault is not an absolute offence. The authorities clearly state that not every case of assault committed in the cold light of day in a workplace will render a dismissal just and reasonable. Violence in the workplace is a serious issue and must not be condoned. However, there are degrees of seriousness and culpability. Factors such as intoxication, fatigue or provocation can clearly be an explanation for abhorrent behaviour by an otherwise mature, polite and hard working person. These factors may reduce the culpability of a person to what it otherwise may have been and assist to explain their aberrant behaviour. Such factors are absent in this matter and certain personal circumstances raised in the applicant's first statement concerning his daughter's then recent car accident were not pressed in proceedings. There was no medical evidence tendered in proceedings that may explain the applicant's state of mind or whether he was suffering a condition such as heightened anxiety or abnormal stress levels immediately prior to the incident occurring. 223 The seriousness of the applicant's conduct must be viewed against his obligations under the wider statutory scheme. Juvenile Justice Centres must meet the requirements of the Children (Detention Centres) Act, which concisely establishes what Parliament intended: the welfare and interests of detainees under custodial care shall be given paramount consideration at all times. 224 Clearly, responsibility, control and management of detention centres is vested in the Director General. Section 4, Objects of Act, states in part: (1) The objects of this Act are to ensure that: (a) persons on remand or subject to control take their places in the community as soon as possible as persons who will observe the law, (b) in the administration of this Act, sufficient resources are available to enable the object referred to in paragraph (a) to be achieved, and (c) satisfactory relationships are preserved or developed between persons on remand or subject to control and their families. 225 Pursuant to s4 of the Children (Detention Centres) Act, the Director General shall ensure arrangements exist to provide detainees (and staff) with a safe and secure environment. The word "ensure" has a number of recognised meanings. Relevantly, the meaning given by the Concise Electronic Macquarie Dictionary is: to secure, make sure or certain. Each meaning is concerned with the production of a result and not with the means of doing so. Code of Conduct 226 The Code of Conduct sets out the standards of personal and professional behaviour which staff are expected to apply when undertaking their work. The Code requires staff to maintain a professional relationship with departmental clients: Employees are prohibited from engaging in behaviour that results in physical or emotional abuse of clients or their families. It is each employee's responsibility to make every effort to prevent clients being exposed to situations in which they may be exploited or neglected 227 Staff members are required to acknowledge receipt and acceptance of this Code by completing a specific acknowledgement form. Breach of the Code attracts disciplinary proceedings in accordance with the provisions of the Public Sector Employment and Management Act. Staff are expected to be aware of the various Acts, Regulations, policies, operational guidelines and procedures that govern the management of juveniles in their care. It therefore follows that staff must always act in accordance with their duty of care to clients. 228 Relevant legislation, for the purposes of the Code of Conduct, includes: Children and Young Persons (Care and Protection) Act 1998; Children (Detention Centres) Act 1987; Occupational Health and Safety Act 2000; Ombudsman Act 1974; and Public Sector Employment and Management Act 2002. Client Protection Policy 229 The purpose of a Client Protection Policy is to provide for the welfare and protection of persons under Departmental supervision. The Policy is read in conjunction with the Code of Conduct and related policies concerning ethical and professional standards: · to give guidance and direction to employees of the department on how to protect the safety, welfare and well-being of clients of the Department; and, · to meet the department's reporting obligations in relation to children and young people who are, or may be, abused, neglected or at risk of harm. 230 The Policy provides specific and mandatory principles relevant to the work of all employees in the following terms: · the department aims to provide an environment that protects the safety, welfare and well-being of clients. Its services and facilities aim to foster the health, developmental needs, spirituality, self-respect, and dignity of its clients; · employees must provide clients with such protection as is reasonable in the circumstances and necessary for the safety, welfare, and will-being; · employees have a statutory responsibility to report their concerns if the safety and welfare of clients has been compromised; and · employees have statutory and common law duties of care towards clients. The general nature of the work of many employees requires them to exercise a range of responsibilities that would normally rest with a parent or guardian. 231 The Client Protection Policy contains certain indicators of physical assault. Actual physical harm does not have to occur for an assault to be found to have occurred. Physical assault refers to assault and /or non-accidental injury. It is described as a hostile act towards a child and can include pushing, shoving, hitting or threatening behaviour, either verbal or through actions, that causes the child to fear an assault is likely to occur. The Policy further states physical assault, under common law principles, must include all three of the following elements: · it is an act committed on or towards a child; · it involves either the application of force to a child or an act that causes a child to think that immediate forces will be used on them; and · it is either hostile or reckless (a reckless act is one where a person would reasonably foresee the consequence of or likelihood of inflicting injury or fear, and ignores the risk. Duty of care 232 Detainees are minors and, as such, the duty of care owed by the Department and its staff must bear some similarity to that owed by a school to its students. The applicant owed a duty of care to detainees in his capacity as a youth officer with responsibility for detainees under his control and supervision. In that regard, the objects of the Children (Detention Centres) Act 1987 state: 4 Objects of Act (1) The objects of this Act are to ensure that: (a) persons on remand or subject to control take their places in the community as soon as possible as persons who will observe the law, (b) in the administration of this Act, sufficient resources are available to enable the object referred to in paragraph (a) to be achieved, and (c) satisfactory relationships are preserved or developed between persons on remand or subject to control and their families. (2) In the administration of this Act: (a) the welfare and interests of persons on remand or subject to control shall be given paramount consideration, and (b) it shall be recognised that the punishment for an offence imposed by a court is the only punishment for that offence. 233 Moreover, the Children (Detention Centres) Regulation 2005 prohibits intimidating or threatening behaviour towards a detainee by juvenile justice officers. Regulation 49 is quite specific: 49 Order generally (1) Officers must seek to influence detainees through example and leadership and must seek to enlist their willing co-operation. (2) At all times, the treatment of detainees must be such as to encourage their self-respect and sense of personal responsibility. (3) A juvenile justice officer is not to engage in behaviour toward a detainee: (a) that is intimidating, humiliating, demeaning, threatening or oppressive, or (b) that otherwise constitutes an abuse of the officer's authority. 234 Use of force by an officer is restricted to preventing or protecting detainees from injuring themselves, inflicting serious damage or escape. While force may be used to protect an officer or other persons from attack or harm, it remains an option of last resort. Regulation 50 relevantly states: 50 Use of force (1) A juvenile justice officer must not use force against any person in a detention centre except for the following purposes: (a) to prevent a detainee from injuring himself or herself, (b) to protect the officer or other persons from attack or harm, (c) to prevent a detainee from inflicting serious damage to property, (d) to prevent a detainee from escaping, (e) to prevent a person from entering a detention centre by force, (f) to search a detainee in circumstances in which the detainee refuses to submit to being searched, (g) to seize any dangerous or harmful article or substance that is in the possession of a detainee, (h) to prevent or quell a riot or other disturbance. (2) A juvenile justice officer may also use force in order to move a detainee who refuses to move from one location to another in accordance with an order of that officer, but only if the officer first gives a warning to the detainee of the consequences of failing to comply with the order. (3) In dealing with a detainee, a juvenile justice officer must use no more force than is reasonably necessary in the circumstances, and the infliction of injury on the detainee is to be avoided if at all possible. 235 The Children (Detention Centres) Regulation imposes a non-delegable duty of care upon the Director General and relevant detention centre staff to ensure detainees are, at all times, protected from risks of injury. The standard of that duty is high, particularly bearing in mind that ordinarily, detainees would be in the care of their parents or a guardian. 236 The Department exercises a special responsibility towards all children and young persons taken into its care and protection. It has a duty to "ensure" and "make certain" that reasonable care is taken in carrying out those custodial functions vested in the Department by Parliament. 237 The non-delegable duty of care owed to detainees requires the Department to exercise reasonable care and to ensure that reasonable skill and care is taken in supervising those detainees subject to its care. That duty fell squarely on the applicant to take reasonable care for the appropriate supervision and safety of WW at all times. OHS Considerations 238 The intent of the various laws applicable to the operation of detention centres, together with the Department's Client Protection Policy, Draft Use of Force Procedures, Behaviour Management – Managing Difficult Behaviour Policy and the Code of Conduct are directed towards their orderly operation and the health, safety and wellbeing of children, young persons in custody and staff. 239 The Occupational Health and Safety Act also imposes stringent requirements and obligations in a number of different capacities in order to secure and promote the health, safety and welfare of persons at work. The objects of the Act set out in s 3 include the following: (a) to secure and promote the health, safety and welfare of people at work, (b) to protect people at a place of work against risks to health or safety arising out of the activities of persons at work, (c) to promote a safe and healthy work environment for people at work that protects them from injury and illness and that is adapted to their physiological and psychological needs. 240 The Department has a statutory obligation to be proactive in seeking out risks to safety and taking appropriate measures to obviate those risks. That obligation is supported by the various policies and procedures in place as canvassed in these proceedings. 241 An employer must ensure the health or safety of persons is not exposed to risk while they are present at the employer's place of work. In WorkCover Authority of New South Wales v Industrial Galvanisers Corporation (2002) 119 IR 306, Boland J as he then was, stated employers were required to treat workplace safety proactively: 47 Moreover, the obligation on an employer to ensure the health and safety of persons at work is not confined to the taking of precautions only when there are warnings or signals of danger or where experience indicates that a risk to safety has arisen and requires remedy: Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209-210; Shannon v Comal co at 364. The Act also requires a pro-active approach and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace: Nelmac citing Hill J in WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. See also Narayan v Inspector Chamings (2007) 169 IR 414. 242 The various duties imposed on employers under the Occupational Health and Safety Act are set out under s 8: Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. (2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 243 Section 8 imposes an absolute liability on employers who "must ensure" the health, safety and welfare of employees and other persons at work is consistent with the Objects set out in s 3. As noted above, "ensure" means to secure, make sure or certain. Accordingly, the duty to "ensure" is more stringent than a duty to merely take reasonable care. When a duty is non-delegable, the person owing it must guarantee or make certain the duty is carried out. Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 at 449. 244 Section 20 of the Occupational Health and Safety Act sets out certain specific duties on employees whilst at work: 20 Duties of employees (1) An employee must, while at work, take reasonable care for the health and safety of people who are at the employee's place of work and who may be affected by the employee's acts or omissions at work. (2) An employee must, while at work, co-operate with his or her employer or other person so far as is necessary to enable compliance with any requirement under this Act or the regulations that is imposed in the interests of health, safety and welfare on the employer or any other person. 245 When viewed against the objects of the Occupational Health and Safety Act "to secure, make sure or certain" the health, safety and welfare of employees and other persons at work, including staff and detainees, the conduct of the applicant was unacceptable. There was a risk that the applicant's conduct could have produced an explosive situation capable of causing a serious risk of injury to other detainees and staff. Conclusion 246 Following a careful examination of all the evidence, materials, including references supporting the applicant's work ethic and character and submissions put to me in this matter, I find that the disciplinary action taken by the Director General to dismiss the applicant was, in all the circumstances of the case, not harsh, unjust or unreasonable. The decision made was one reasonably open to the Director General to make at the time following an independent investigation and a subsequent interview where the applicant was afforded an opportunity, with the support of his Union, to defend the allegation of assault. 247 In all the circumstances, the applicant's conduct was serious. In North v Television Corporation Limited (1976) 11 ALR 599, Smithers and Evatt JJ, set out some conclusions to be drawn "on the kind of conduct that would justify dismissal at common law" at 608-609: It is of assistance to consider the expression "misconduct" by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression "misconduct" as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment. 248 The disciplinary action taken against the applicant was not harsh, because it was not disproportionate to the seriousness of the misconduct when viewed against the wider legislative scheme, the various policies, procedures and code of conduct requiring his compliance and the requisite duty of care to protect young persons in the care and custody of the Department. The Director General had no alternative in the circumstances other than to dismiss the applicant, notwithstanding his length of service and apparent past conduct. Any harsh effect of the dismissal on the applicant is clearly relevant but is not conclusive: Bostik (Australia) Pty Ltd v Gorgevski [No 1] 249 Similarly, the dismissal was not unjust. In addition to falling foul of the wider legislative scheme, departmental policies and the like, the applicant's conduct was serious. It constituted an assault and fell within the meaning of "reportable conduct" defined under s33 of Commission for Children and Young People Act. 250 The applicant's dismissal was not unreasonable given that he was a youth officer with 14 years experience who failed to discharge his duties commensurate with his work experience and the laws and policies in force to protect young persons in custody. In my view, the sanction of dismissal was not disproportionate to his conduct. Alternative sanctions such as a reprimand or demotion were, for those reasons related to protection of young persons, not reasonably open to the Director General, given all the circumstances of this case. 251 The penalty of termination was not disproportionate to the applicant's conduct when the seriousness of the assault on a young person is viewed against the standards of employee behaviour and conduct set out in various laws, departmental policies and procedures established to protect both detainees and staff are considered. Departmental policies and procedures seek to ensure staff behave in a lawful manner, conduct themselves professionally, treat other staff and detainees with respect and take care of their safety and wellbeing. Given that finding, there is no requirement to further elaborate whether alternative disciplinary action was available to the Director General within the hierarchy of measures provided under the statute. 252 The applicant did not accept that his conduct was in breach of the various legislative constraints, policies and procedures in place. During the final interview with the Director General on 19 May 2008, the applicant contended that when interviewed by Ms Klaassen he thought at the time the allegation was "possibly a storm in a teacup because I believe I made no contact with him and maintained that". The applicant's range of responses during his final interview with the Director General included the following plea: Like I said, I'm not here to defend my actions. I know and I understand that they were reckless and inconsiderate and at the time totally irresponsible but like I said, I'm not here to defend that. I'm defending the allegations made against me by WW. I suppose in defence of my actions of lashing out with my foot, like I said obviously you've seen the CCTV, as I walked into the area WW was all over me basically, you know wanting to shake my hand, pat me on the back. I believe my body language as I – viewed it was I guess non responsive to that – him in – in my face even to the point where he started sparring in front of me. My recollection of the conversation Peter was look WW just back off – just leave me some space you know get – you know just trying to remove him from the area you know, from my initial face. 253 The one-off nature of this incident does not reduce its seriousness. The incident was unprovoked. A youth officer with 14 years service should be aware of all policies, laws and regulations that restrict the use of force and strategies to counter excessive horseplay or banter that, on the evidence, occurs regularly. Other than what appears to be an updated draft November 2007 Use of Force Procedure, there was no evidence the various departmental policies and procedures pressed in these proceedings to ensure the safety and wellbeing of detainees and staff were not in practical operation at the time of the incident. 254 Detention centres pose a difficult environment where the safety of detainees and staff is paramount. That difficult environment is precisely why the Department has specific written policies and systems in place directed to controlling all risks as and when they materialise. There were also other officers present that could have been called upon to assist the applicant. It is readily apparent that the applicant's conduct, even if it was accidental conduct, was obviously inconsistent with the responsibilities of anyone involved with the supervision and care of young, vulnerable persons in care. 255 The application is dismissed and this matter is now concluded. 256 With respect to the Category One notification in accordance with s 39 of the Commission for Children and Young Peoples Act, it is open to the Association to initiate appropriate discussions with the Department to ensure the objectives of the legislation have been upheld. J D Stanton 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.