Industrial Relations Commission of New South Wales CITATION: Director of PE His Agent The Director-General of The Department Of Juvenile Justice and PSA and Professional Officers' Association Amalgamated Union of NSW (On Behalf of Elvin Brian Brown) [2008] NSWIRComm 221 DIRECTOR OF PUBLIC EMPLOYMENT BY HIS AGENT THE DIRECTOR-GENERAL OF THE DEPARTMENT OF JUVENILE JUSTICE Appellant PARTIES: PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES (ON BEHALF OF ELVIN BRIAN BROWN) Respondent FILE NUMBER(S): IRC 1748 and 1904 of 2008 CORAM: Schmidt J; Grayson DP; Bishop C CATCHWORDS: Appeal - application for leave to appeal, appeal and cross appeal - youth officer summarily dismissed at Juvenile Justice Centre - investigation procedures - summary dismissal and statutory scheme considered - question as to whether misconduct occurred - was dismissal warranted in the circumstances - was the decision to dismiss harsh, unreasonable or unjust - whether reinstatement was impracticable - whether re-employment should be ordered - leave to appeal is granted in both appeal and cross appeal - appeal upheld - orders set aside - cross appeal dismissed Children (Detention Centres) Act 1987 Children (Detention Centres) Regulation 2005 LEGISLATION CITED: Commission for Children and Young People Act 1998 Industrial Relations Act 1996 Public Sector Employment and Management Act 2002 Briginshaw v Briginshaw (1938) 60 CLR 336 Byrne v Australian Airlines Limited (1995) 185 CLR 410 Director-General of Education v Suttling (1987) 162 CLR 427 Entertainment Distributors Company Pty Limited and Anor v Burnard and Ors (1993) 49 IR 446 In Re Dispute - Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371 CASES CITED: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 New South Wales Nurses' Association (on behalf of Colin Prior) v South Eastern Sydney & Illawarra Area Health Service (2007) 164 IR 225 New South Wales Department of Education and Training v New South Wales Teachers Federation (on behalf of Mossfield) (2006) 155 IR 257 North v Television Corporation Ltd (1976) 11 ALR 599 Pastrycooks, Biscuit Makers & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Elvin Brian Brown) and Department of Juvenile Justice [2008] NSWIRComm 154 Webb v Goulburn Masonic Village (2004) 136 IR 309 HEARING DATES: 13 November 2008, 14 November 2008 DATE OF JUDGMENT: 27 November 2008 APPELLANT IN IRC 1748 OF 2008/RESPONDENT IN IRC 1904 OF 2008: Ms T Anderson of counsel with Mr A Martin of counsel LEGAL REPRESENTATIVES: RESPONDENT IN IRC 1748 OF 2008/APPELLANT IN IRC 1904 OF 2008: Mr R Reitano of counsel JUDGMENT: - 41 - INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: SCHMIDT J GRAYSON DP BISHOP C 27 November 2008 Matter No IRC 1748 of 2008 DIRECTOR OF PUBLIC EMPLOYMENT BY HER AGENT THE DIRECTOR-GENERAL OF THE DEPARTMENT OF JUVENILE JUSTICE AND PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES (ON BEHALF OF ELVIN BRIAN BROWN) Application by Director of Public Employment by her agent the Director-General of The Department of Juvenile Justice for leave to appeal and appeal against a decision of Deputy President Sams on 27.8.2008 in matter no. IRC 2182 of 2007 Matter No IRC 1904 of 2008 PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES (ON BEHALF OF ELVIN BROWN) 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 Elvin Brown to extend time to appeal and leave to appeal and appeal against a decision of Deputy President Sams given on 27.8.2008 in matter no. IRC 2182 of 2007 JUDGMENT [2008] NSWIRComm 221 1 This is an application for leave to appeal, appeal and cross appeal from a decision given by Deputy President Sams on 27 August 2008, ordering the re-employment of Mr Elvin Brian Brown as a Youth Officer at the Reiby Juvenile Justice Centre ('Reiby'), with certain conditions attached. The conditions were a 6 month probationary period; retraining in the Department's Use of Force Guidelines and Mr Brown's personnel file recording a final warning. (See Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Elvin Brian Brown) and Department of Juvenile Justice [2008] NSWIRComm 154.) 2 Mr Brown had been summarily dismissed by the Department, after an investigation into two separate incidents in 2007 involving young detainees at the Centre. Both incidents occurred while Mr Brown was seconded to the position of Aboriginal Unit Co-ordinator, for a trial period. Mr Brown's substantive position was that of Youth Officer. The Department's investigations into the two incidents were not attacked on procedural grounds. Apart from one finding in relation to one of the incidents, Sams DP did not come to any different factual conclusions to those reached by the two investigators. His Honour concluded that the misconduct upon which the Director General had acted to dismiss Mr Brown, had been established in both instances. 3 Having considered a range of factors which his Honour took the view had to be weighed in the balance, his Honour concluded that if he had been the decision maker, the Director General of the Department, he doubted that he would have arrived at a different conclusion to that reached. His Honour, nevertheless, also concluded the misconduct would not have warranted summary dismissal and that while the decision to dismiss was not unreasonable or unjust, it was harsh in the particular circumstances, having 'severe and deleterious consequences for his personal and economic circumstances' (at [119]). 4 His Honour concluded that Mr Brown deserved a second, albeit final chance and while the decision was 'lineball' (at [121]) and reinstatement was impracticable, he should be re-employed as a youth officer at the Reiby Centre, under 'a period of strict supervision'. 5 The Department's appeal challenged his Honour's decision, having regard to the findings that the assault of children detained in custody had occurred, arguing that the public interest required that such children be protected from assault or other ill-treatment by staff employed in the Department's detention centres. The provisions and policies underlying various legislation were relied, upon, including the Children (Detention Centres) Act 1987; the Children (Detention Centres) Regulation 2005, it being argued that these were matters which Sams DP had failed to take into account. Various alleged errors of law were raised by this appeal, including the conclusion that the common law as to summary dismissal had any relevance, given the statutory scheme under which Mr Brown had been employed. Other complaints were advanced as to his Honour's failure to give reasons for his decision and to hear the parties in respect of the orders made. 6 The Union's appeal challenged the conclusion that misconduct had occurred and raised questions going to the test to be applied in determining whether excessive force had been used by an employee and the test to be applied in determining whether reinstatement was practicable. Other complaints were advanced as to his Honour's failure to give reasons and to hear the parties in respect of the orders made. Consideration Leave to appeal 7 In this case there can be no question that leave to appeal should be granted to both parties. Firstly, it was common ground that his Honour fell into error, having regard to the statutory scheme under which Mr Brown was employed. Both parties also complained that his Honour had failed to give either party an opportunity to be heard in respect of the question of whether reinstatement was practicable; whether re-employment should be ordered and if so, whether any conditions should be imposed. The parties also complained as to his Honour's failure to give reasons for the conclusions which he reached as to these matters. 8 For reasons which we will explain below, we are satisfied that there was a proper foundation for the parties' views as to these matters. They undoubtedly provide an appropriate and sufficient basis for leave to appeal to be granted. This was a case akin to that considered in New South Wales Department of Education and Training v New South Wales Teachers Federation (on behalf of Mossfield) (2006) 155 IR 257, albeit that the two appeals raised both the question of whether misconduct had, in fact, occurred and if it had, whether it was of a kind as to warrant dismissal. In Mossfield it was observed as to leave: 15 However, this case is analogous to Humphries v Cootamundra Ex-Services and Citizens Memorial Club (2003) 128 IR 37 in which the Full Bench held at [77]: 77 Secondly, the central issue, which we have been asked to consider, is whether the findings of fact in relation to serious misconduct were wrong. If, as in this matter, there is a substantial basis upon which to conclude that such a contention may be made out, there emerges significant basis for the grant of leave in order to ensure the proper administration of justice. As was said by a Full Bench of this Commission in Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at 326: The extent to which, if at all, those errors be ultimately established is not a matter to be finally determined on the question of leave but only on a full hearing of the appeal. In themselves we are satisfied they raise serious issues to be tested, are reasonably arguable and are of a nature proper to attract leave to appeal. The allegations 9 In considering the matters raised on appeal, it is necessary to have regard to the allegations made against Mr Brown, of which he was advised by correspondence from the Director General. The allegations were: RD Incident On or about 14 April 2007 you assaulted detainee RD at Reiby Juvenile Justice Centre. On or about 14 April 2007 you used excessive force, inappropriate and unauthorised methods of restraint, takedown and movement on detainee RD in breach of the department's Use of Force & Instruments of Restraint Procedures, training and clause 50 of the Children (Detention Centres) Regulation 2005. NB Incident On or about 2 June 2007 you assaulted detainee NB at Reiby Juvenile Justice Centre. On or about 2 June 2007 you used excessive force on detainee NB at Reiby Juvenile Justice Centre in contravention of clause 50 of the Children (Detention Centres) Regulation 2005. On or about 2 June 2007 you used inappropriate and unauthorised methods of restraint, takedown and movement on detainee NB in breach of the department's Use of Force and Instruments of Restraint Procedures and training. On or about 2 June 2007 you failed to follow the proper procedures for dealing with misbehaviour and managing difficult behaviour contained within the Children (Detention Centres) Act 1987 and the Children (Detention Centres) Regulation 2005, the relevant departmental policies and procedures, and training when dealing with detainee NB at Reiby Juvenile Justice Centre. On or about 2 June 2007 you caused the breakdown of good order in Reiby Juvenile Justice Centre in breach of section 49 Order Generally of the Children (Detention Centres) Regulation 2005. On or about 2 June 2007 when dealing with detainee NB, you failed to work safely to protect the health and safety of yourself, colleagues, clients and visitors by not following all departmental Occupational Health and Safety procedures and guidelines designed to help maintain a safe place of work. The investigation procedures 10 This was a case where there was no complaint about the fairness of the procedures which led to the dismissal. The allegations were investigated independently by two separate investigators. The decision to dismiss was made by the Director General, after Mr Brown had been interviewed in the course of each investigation; had been provided with a copy of the investigators' reports and had an opportunity to respond to them, which he availed himself of. Once the Director General came to the view that the misconduct had been proven, Mr Brown was also given an opportunity to respond to the Director General on the question of appropriate penalty and finally, the Director General herself met with Mr Brown, who was given a further opportunity to explain himself. 11 The Director General then came to the view that Mr Brown's conduct warranted his dismissal, of which Mr Brown was advised in writing in November 2007. The misconduct proven also gave rise to an obligation upon the Department to make a notification in relation to Mr Brown, under the Commission for Children and Young People Act 1998. Summary dismissal and the statutory scheme 12 Deputy President Sams considered the Director General's decision to dismiss, in the context of an employer's right at common law to summarily dismiss an employee for serious and wilful misconduct. In so approaching the issues before him, we are satisfied that his Honour fell into error. 13 The termination of Mr Brown's employment was governed by the provisions of the Public Sector Employment and Management Act 2002. Section 46 of that Act obliged the Director General to deal with the allegations of misconduct made against Mr Brown in accordance with the statutory scheme. Misconduct is defined in s 43 as: (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. 14 In accordance with s 46(1) the Director General had 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. 15 Having decided to deal with the allegations as a disciplinary matter, in accordance with the applicable procedural guidelines, the Director General appointed two independent investigators, who each conducted an investigation and later reported what they had found. 16 Having received the investigators' reports and Mr Brown's responses to them, in accordance with s 46(2), the Director General, if 'of the opinion that the officer has engaged in any misconduct', was entitled to 'decide to take disciplinary action with respect to the officer.' What disciplinary action could be taken was also prescribed, the term being defined in s 42 as: 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 In his decision, his Honour observed that the statutory scheme did not encompass the concept of summary dismissal. In this observation his Honour was undoubtedly correct. The statute concerns itself with positions in the public service. Part 2.3 of Chapter 2, The Public Service of the Public Sector Employment and Management Act deals with how officers may be appointed to such positions and how such positions might be vacated. Section 26(1)(c) provides that a position may become vacant if an officer: (b) is removed from the position, or retires or is retired from the position, under this or any other Act, or 18 The complaint advanced for the Department on appeal was that despite observing that the concept of summary dismissal was not one encompassed in the statutory scheme, his Honour, nevertheless, concluded that in employment under the Public Sector Employment and Management Act: ... for an employee to be summarily dismissed for misconduct, (as is the case here), there must be demonstrated conduct of such a serious or wilful nature as to strike at the very heart of the ongoing relationship between the employer and the employee. It has often been described as conduct amounting to a repudiation or renunciation by the employee of his/her employment contract.' (at [113]). 19 For its part, the respondent agreed with the appellant's submission that in coming to that conclusion, his Honour fell into error. We are satisfied that the parties are correct, as to the proper construction of this legislation. It does not incorporate the common law concepts of summary dismissal, as opposed to dismissal upon the giving of notice. 20 While public servants such as Mr Brown may undoubtedly also be employees at common law, their contracts of employment must be contracts made in accordance with the applicable statutory scheme. As Brennan J observed in Director-General of Education v Suttling (1987) 162 CLR 427, at 437: Members of the Service are appointed pursuant to the Act and their rights must be ascertained by reference to its provisions. The relationship between a civil servant of the Crown and the Crown has often been described as contractual, though the civil servant has been appointed pursuant to statute: see, eg, Gould v Stuart [1896] AC 575, at p 577; Carey v The Commonwealth [(1921) 30 CLR 132, at p 137; Lucy v The Commonwealth (1923) 33 CLR 229, at pp 238, 249, 253. However, the contractual nature of the relationship has not been universally accepted: see, eg, Monckton v The Commonwealth (1920) 27 CLR 149, at pp 155, 156; Lucy v The Commonwealth (1923) 33 CLR, at p 244; Geddes v Magrath; Morgan v Geddes (1933) 50 CLR 520, at pp 533- 534; The Commonwealth v Welsh (1947) 74 CLR 245, at pp 262, 274; and cf Ryder v Foley (1906) 4 CLR 422, at 440. And sometimes an espousal of one view rather than the other has been avoided: see, eg, Reilly v The King [1934] AC 176, at p 180; Kodeeswaran v Attorney-General (Ceylon) [1970] AC 1111, at p 1118. If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions. 21 So far as dismissal is concerned, it is the provisions of the Public Sector Employment and Management Act which the Director General was obliged to observe. That Act is concerned with 'misconduct' as defined and 'disciplinary action' as also defined, which may be taken, if misconduct is established. It is left to the Department Head in question to determine what disciplinary action is appropriate in the circumstances of a particular case. One action which may be taken is to dismiss. That is what occurred in this case. 22 Given the provisions of s 83, there is no question that the fairness of such a decision may be challenged, in accordance with the provisions of the Industrial Relations Act 1996 ('the Act'). What may then arise for consideration is both whether misconduct in fact occurred and if it did, whether the disciplinary action taken, dismissal, was 'harsh, unreasonable or unjust' in all of the circumstances. Such a consideration may also involve considering whether other disciplinary action available to be taken by the Department Head, ought to have been taken in the circumstances. 23 It follows that in approaching the issues raised by Mr Brown's application on the basis of whether the misconduct established on the evidence would have warranted Mr Brown's summary dismissal at common law, his Honour fell into error. That is a concept with which the Public Sector Employment and Management Act does not concern itself. 24 It ought not to be overlooked that the reason why the distinction between summary dismissal and dismissal on notice is ordinarily an important one at common law, is twofold. Firstly, if conduct warranting summary dismissal has occurred, an employer need not give any notice of termination of employment to the employee. The employment may lawfully be brought to an end, forthwith. Secondly, if the dismissal is challenged, an evidentiary onus always falls on an employer to establish that the circumstances in which the particular dismissal occurred were such as to give rise to the right to summarily dismiss without notice. (See Pastrycooks, Biscuit Makers & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 84.) 25 In this case, the Department also accepted that it had an evidentiary onus to establish that the misconduct which the Director General had found proven, had in fact occurred, so that the right to take disciplinary action arose under the statute. For a public servant that is potentially a considerable advantage. If the employer cannot meet that evidentiary onus, no matter how trivial or serious the misconduct in question, certain inevitable consequences follow, including that the statutory foundation for imposing any disciplinary action, will not exist. That is not the position of those employed under common law contracts. At common law, both employers and employees each have the right to terminate a contract upon the giving of the necessary notice, even absent any reason such as misconduct. 26 As the parties accepted, in this case, the end result of his Honour's views as to the role of the common law as to summary dismissal was that in terms of evidentiary onus, his Honour's approach had no practical consequence. The appellant always accepted that it had an evidentiary onus to establish the misconduct relied upon. The appellant also argued, however, that the emphasis which his Honour placed on concepts underpinning summary dismissal, such as conduct amounting to a repudiation of the contract, led his Honour into error. We will return to deal with this aspect of the appeal below. 27 For its part, the respondent's case was that his Honour fell into error in concluding that the misconduct had occurred at all. We turn then to consider that question. Did the misconduct occur? 28 After reviewing the evidence given by Mr Brown and other witnesses, the documentary material and having watched CCTV footage of the two incidents in evidence 'on a number of occasions' and having referred to the standard of proof falling on the appellant, Sams DP concluded that 'I accept that the respondent has discharged the onus it bears in proving the applicant's misconduct in respect to both incidents. (at [112]). 29 Not only was the conclusion that the misconduct had occurred challenged on the evidence by the respondent, it was submitted for Mr Brown that Sams DP had erred in the approach he had adopted, to determining whether the misconduct had occurred. It was submitted, for example, that: Sams DP totally failed to give any weight to Mr Brown's adherence to the legislative procedure of warning a person of consequences if they do not obey a direction. In reality the matters set out in [108] of the Decision involved the information of a nice hypothetical analyses with the benefit of hindsight by someone who was not and who had not worked as juvenile justice officer, but do little to properly deal with the case advanced by Mr Brown in respect of considerations relevant to whether or not he used 'excessive force'. and The finding that Mr Brown 'charged' NB when he stood up is with respect to Sams DP something that is simply not shown on the CCTV footage, It is with respect an overstatement and exaggeration of the evidence (see Ex C) Again AB [109] - [110] contains an interesting theoretical exercise in how authority should be maintained in a detention centre which had little or no regard to the evidence or circumstances that confronted Mr Brown on the day in question it is completely not to the point that Sams DP would have dealt with the matter in some other and different manner. It is a distraction of simply no probative value. 30 The conclusions reached by his Honour, to which these submissions were directed were: 104 In this case, it could not be said that the respondent acted hastily or capriciously in respect to the investigation of both incidents. In my view, the inquiries conducted by Mr Madden and Mrs Alder were thorough, exhaustive and unbiased, and as properly conceded by Mr Reitano , were not able to be attacked on procedural unfairness grounds. Both investigators made findings on the correct test - the balance of probabilities - and both inquiries had regard to interviews by various witnesses to the incidents, including the applicant and both detainees; albeit obviously not on oath. 105 After viewing the CCTV footage on a number of occasions and having regard to the totality of the evidence given in these proceedings and, save for one finding involving the RD incident, I am unable to come to a contrary conclusion to either Mr Madden or Mrs Adler. The exception is that I cannot conclude, as Mr Madden did, that the applicant choked RD. I accept Red's evidence that he had not been choked and Mr Valenzuela and Mr Cheney's evidence that they could have been mistaken as to where the applicant's arm was. In addition, the CCTV footage is inconclusive on this point. Mr Madden clearly accepted NB's claim of being choked and found accordingly. Nevertheless, I do not consider my findings to the contrary to be fatal to Mr Madden's overall conclusions. Bearing that in mind, I would now make the following specific findings in respect to the two incidents. RD Incident - 14 April 2007 · RD had abused staff, including the applicant, after he was refused permission to make a phone call; · the applicant warned RD that if he continued his behaviour he would be confined to his room; · RD continued his aggressive behaviour and when the applicant directed him to his room, RD pushed the applicant; · the applicant responded by pushing RD towards the Unit door; · in the Unit, RD continued his aggressive behaviour and he threw a plastic chair across the dining room; · the applicant took hold of RD in a 'bear hug' like stance, chest to chest, and proceeded to march him backwards to the wrong end of the Unit; · when RD protested his room was in the other direction, both RD and the applicant continued pushing each other and exchanged words; · the applicant did not ask Officer Cheney for assistance or call for assistance by the duress alarm; · as the exchange continued, the applicant spun RD around, held him from behind by putting his left arm over Red's left shoulder, most probably with his arm around his upper chest near his throat; · RD threw at least two punches at the applicant's head; · in the scuffle, RD fell to the ground and the applicant held him on the ground; · two other officers arrived to assist in moving RD to his room; and · the incident lasted 1 min 10 sec, from the time the applicant entered the courtyard until RD was placed in his room. 106 The Commission has no doubt that the applicant acted aggressively for the majority of the duration of this incident and that he used excessive force to restrain the detainee. Further, the applicant did not seek assistance from another officer present or seek assistance from other officers, by resorting to his duress alarm. The applicant's actions were in breach of the Department's guidelines and policies of which an employee of this man's experience and seniority would have been aware. I do not accept (if it be a defence) that the applicant did not receive regular refresher training. The issues here are fundamental to the duties of juvenile justice officers. 107 While I readily acknowledge and agree with Mr Head's evidence that the Department's guidelines are designed to assist officers and are not mandatory, it does not necessarily follow that the applicant's conduct was a reasonable response, in the circumstances that he perceived them at the time. In my opinion, from any objective viewing of the CCTV footage, it could not be considered that the applicant's conduct was a reasonable response in the circumstances. 108 As to the other claims of self-defence, I have difficulty with accepting this proposition given the following: a) the relative disparate size of the two persons involved; b) the degree of aggression displayed by the applicant over the time of the incident; c) the various holds the applicant had on the detainee; and d) the proximity of another officer (Mr Cheney) and others in the vicinity of the incident. NB Incident - 2 June 2007 · NB approached the scullery bench during breakfast where the applicant was working; · a verbal exchange took place in which NB called the applicant a "fat cunt" or a "fat fuck"; · the applicant insisted NB repeat what he said, which he did; · the applicant warned NB that he would be going to 'Main'; · NB walked back to his seat and sat down and Youth Officer Camellia Jackson went over to him, placed her hand on his shoulder in an attempt to calm him down; · within a few seconds the applicant approached, and words were exchanged; · the applicant insisted NB go to 'Main' and warned him force would be used if he did not; · as NB stood up, the applicant rushed him, grabbed him and either pushed him or his weight propelled him towards the window. I cannot be certain if NB 'shapes up' to the applicant as this section of the CCTV footage is far too short and inconclusive. The reactions of the applicant and NB are almost instantaneous; · another Youth Officer, Tika Makisi, assisted the applicant to restrain NB. There was a scuffle and the applicant appeared to lose his balance and fell to the ground under the window; · another Youth Officer joined in an attempt to calm NB down; · NB was eventually restrained and removed; and · the incident lasted 1 min 40 sec, from when NB approached the scullery until he was escorted to 'Main'. 109 The Commission is satisfied that the applicant used excessive force on NB when he charged him after NB stood up. It is clear Youth Officer Jackson was attempting to calm him down, immediately beforehand. I am further convinced that the applicant's handling of NB's abusive language was inappropriate, in that he encouraged him to repeat the words used when he knew precisely what had been said and the abuse could have been ignored and written up later. 110 The applicant should have sought assistance if he believed it was necessary to send NB to 'Main', but rather took matters into his own hands. The applicant's actions were not in accordance with the Department's policies and procedures in that he used excessive force unnecessarily. 111 I do not accept that the applicant could have perceived that NB was intending to hit him when he stood up from the table. Even if this had been so, there was enough room for evasive action, particularly as it was likely to involve Ms Jackson, who was very close by. Moreover, I accept NB's evidence that if he had refused to go to 'Main' he would have remained seated. 112 It follows from these findings, that I accept that the respondent has discharged the onus it bears in proving the applicant's misconduct in respect to both incidents. 31 It was also argued that his Honour had erred in concluding that Mr Brown had acted aggressively, because, of necessity, any use of force involved aggression. We do not accept that submission as a matter of logic. Furthermore, it is a submission directly at odds with the Departmental policies in evidence, as well as the statutory scheme, which all seek to ensure that juvenile justice officers do not act aggressively towards detainees, but remain in control, even when the use of force becomes necessary. 32 Having considered the evidence, including the CCTV footage of the two incidents, we are unable to accept the submissions advanced for Mr Brown, or to come to the view that the conclusions which his Honour reached were not open on the evidence. 33 His Honour's view was that the allegations that Mr Brown had assaulted the two detainees and had used excessive force to restrain them in the circumstances had been made out, but for one matter. While not dealing at length with the statutory framework by which Mr Brown was authorised to use force when dealing with detainees, his Honour was clearly conscious of it, having referred to it elsewhere in his decision and having annexed certain of the relevant provisions, as well as extracts from the applicable policies, to his decision. 34 The Reiby Juvenile Justice Detention Centre where Mr Brown was employed, operated under the provisions of the Children (Detention Centres) Act 1987. The objects of that Act provide that: 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. 35 Employees such as Mr Brown are undoubtedly called upon to perform socially important work, requiring them to supervise and control young offenders incarcerated for very serious crimes. The challenges imposed by such work ought not to be underestimated. Undoubtedly, on occasions they require that force will be used, if order is to be maintained in a detention centre and the safety of detainees and staff is to be ensured. The legislative scheme recognises this, but it also recognises that detainees are children and that the punishment they are to receive is the detention orders imposed upon them by the courts, not the treatment which may be meted out to them by Departmental employees such as Mr Brown, during their detention. Undoubtedly, achieving these various statutory aims will on occasions require difficult decisions on the part of Departmental employees and a need for them to balance objectives, which might on occasions appear to be in conflict, given the situations which such officers are required to deal with. 36 That was certainly the thrust of the case advanced for Mr Brown. It was argued that he had been confronted with two difficult situations, where, in accordance with the applicable Regulation, he had been entitled to use force. He had acted appropriately in both cases; there had been no assault on either occasion; nor had there been any misconduct. Mr Brown had not breached any applicable Regulation, or Departmental policy in the circumstances he had to deal with. 37 It was Regulation 50 of the Children (Detention Centres) Regulation 2005, which governed Mr Brown's use of force on both occasions. The regulation provides: 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. 38 In the circumstances of Mr Brown's employment, he was obliged by the Department's Code of Conduct, to be aware of and abide by the applicable legislative provisions, as well as the Departmental policies as to how detainees were to be treated and how the use of force was to be approached. On their face these polices are drafted with the legislative framework clearly in mind. 39 Mr Brown's work was with detainees aged between 13 and 16 years, well known for their aggression, incarcerated at Reiby because they had committed offences of the most serious kind. The effect of Regulation 50(2) was that Mr Brown was entitled to use force in order to move the two detainees, if they refused to move from one location to another, in accordance with his order, if he first gave a warning to the detainee of the consequences of a failure to comply with his order. There was no issue in one case that Mr Brown had given such a warning and in the other, that even if the warning had not strictly been given, that the detainee was entirely aware of the consequences of his refusal. 40 What was at issue was whether, in terms of Regulation 50(3), the force which Mr Brown had used was 'reasonably necessary in the circumstances.' It was not only Deputy President Sams who came to the view that the way in which Mr Brown had conducted himself on both occasions, meant that it had to be concluded that the force which he had used was not reasonably necessary in the circumstances. That was also the view of the two investigators and the Director General. We do not accept the submission that Sams DP was not, in truth, in a position to come to any conclusions about that matter. Had that really been the case, it is difficult to se how any orders in favour of Mr Brown could have been made in proceedings such as this. 41 In the case of RD, the investigator, Mr Madden, was instructed to provide an opinion on the relevant facts, as to whether, on the balance of probabilities, the alleged misconduct had occurred and whether the conduct should be dealt with as a disciplinary matter. Mr Madden concluded that an assault had occurred; that while there were reasonable grounds for directing RD to his cabin, excessive force was used; that Mr Brown did not choose to adopt a strategy which would have de-escalated the situation, nor did he seek assistance from other officers, as he could have done; instead he grabbed the detainee with non-approved techniques, with the result that the restraint was inappropriate. Disciplinary proceedings were recommended. 42 In coming to these conclusions, the investigator had regard to the legislative scheme. That includes the requirements of Regulation 49, which provides that: 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. 43 In the case of NB, the investigator Ms Alder was given similar instructions to Mr Madden. She concluded that an assault had occurred in relation to NB; that Mr Brown had used excessive force by pushing NB; holding him in a headlock and pushing him into a window while holding his head and that the methods of restraint, takedown and movement used, were in breach of the Use of Force and Instruments of Restraint Procedures; that Mr Brown had failed to apply the policies applicable to minor misbehaviours; that he caused a breakdown of good order in the Centre, contrary to the Regulations, which put the safety of himself colleagues and clients at risk of injury. Ms Alder also commented on the steps available to Mr Brown which would have avoided the use of force at all, in the circumstances. 44 By her letter to Mr Brown of 14 August, the Director General advised Mr Brown that she had come to the conclusion that: The investigation into the allegations that you may have engaged in misconduct has now been completed. I have considered the investigation Report and I have formed the opinion that you have engaged in misconduct as follows: On or about 2 June 2007 you assaulted detainee NB at Reiby Juvenile Justice Centre. On or about 2 June 2007 you used excessive force on detainee NB at Reiby Juvenile Justice Centre in contravention of clause 50 of the Children (Detention Centres) Regulation 2005. On or about 2 June 2007 you used inappropriate and unauthorised methods of restraint, takedown and movement on detainee NB in breach of the department's Use of Force and Instruments of Restraint Procedures and training. On or about 2 June 2007 you failed to follow the proper procedures for dealing with misbehaviour and managing difficult behaviour contained within the Children (Detention Centres) Act 1987 and the Children (Detention Centres) Regulation 2005, the relevant departmental policies and procedures, and training when dealing with detainee NB at Reiby Juvenile Justice Centre. On or about 2 June 2007 you caused the breakdown of good order in Reiby Juvenile Justice Centre in breach of section 49 Order Generally of the Children (Detention Centres) Regulation 2005. On or about 2 June 2007 when dealing with detainee NB, you failed to work safely to protect the health and safety of yourself, colleagues, clients and visitors by not following all departmental Occupational Health and Safety procedures and guidelines designed to help maintain a safe place of work. I am now considering imposing disciplinary action. As previously advised on 13 June 2007 there are 8 possible disciplinary actions ranging from a caution or reprimand to dismissal. In relation to this matter the severest penalty that I would conceivably impose is: Dismissal . A full copy of the Investigation Report including attachments is provided to you with this letter. You have 14 days from the receipt of this letter to make a submission and to provide any additional information which you consider should be taken into account in relation to the disciplinary action being considered before I make a final decision. Your submission may address such matters including my opinion that you have engaged in misconduct, the Investigation Report, or any extenuating and mitigating circumstances. Before making a final decision on the appropriate action, I will consider the following: 1. The Investigation Report. 2. The objectives of Part 2.7 of the Act as stated in section 41 (copy attached). 3. Your previous employment matters (such as past remedial actions, warnings or discipline matters or alternately previous satisfactory work history) conduct and services reports and personnel file. 4. Your submission if made. You also have an opportunity to have an interview with me, Jennifer Mason, Director General, accompanied by a union or other representative (not a legal practitioner) before a final decision is made. Your representative may speak on your behalf at the interview but may not attempt to cross-examine me. Should you wish to have an interview the request should be made within 5 days of receipt of this letter. Please contact ... who will make arrangements for this interview. Because the alleged facts potentially come within the definition of reportable conduct for purposes of the Commission for Children and Young People Act 1998, your submission (if made) and your interview with me (if you wish to have one) will form the basis upon which I shall make my decision whether or not I should report this matter to the Commission for Children and Young People (CCYP) as a completed relevant employment proceeding. You should not discuss this matter with any person other than your legal representative or a union official representing your interests in this matter. Confidential information obtained during the investigation should not be discussed except for the purpose of the investigation or any action arising from the investigation, or for the purpose of obtaining advice from your legal representative or union official. This is to protect the integrity of the process and your privacy rights, and the privacy rights of other persons who may become involved in this matter. 45 Similar advice was given in relation to the RD allegations. Undoubtedly, at the hearing his Honour had access to information which was not available to the two investigators and to the Director General when she made her decisions, particularly the evidence given by witnesses in cross examination. On appeal, it was emphasised for the respondent that if there had been an assault, on either occasion it had been of the most trivial kind; that the two detainees, on their own evidence, held no ill will towards Mr Brown as the result of his conduct; that other juvenile justice officers had agreed, at various points, that what Mr Brown had done was within the range of responses reasonable in the circumstances and that his Honour had utterly failed to take note of the force of Regulation 50, in circumstances where it contemplated that force could be used as a first resort, not just as a last resort, if a detainee refused an officers' direction to move. Mr Brown had given such a direction in each case; it had been refused and he had thereupon been entirely justified in using force, which was not excessive in the circumstances. That was clear on both the CCTV footage and followed from the evidence that neither detainee had been injured. 46 While the arguments were put as cogently as possible, given the circumstances, we must conclude they were not sufficient to demonstrate the type of error necessary to establish, if an appeal bench is to interfere with a first instance decision. The allegations put to Mr Brown, especially those concerned with NB, were not only concerned with use of excessive force. They raised the whole of the circumstances in question. Certainly, what had to be established at the hearing below was that the Director General had been wrong in concluding that excessive force had been used in the circumstances. It was, however, the conclusion that Mr Brown had engaged in misconduct which had to be shown as having had no foundation. 47 Whether misconduct had occurred, especially in relation to the use of force, required a consideration of all of the circumstances, which included Mr Brown's contribution to the escalation of the two incidents. Mr Brown explained his own behaviour during the two incidents. It was also described in various ways by witnesses. His Honour's conclusion was that Mr Brown was unnecessarily aggressive, resulting in the detainees' misbehaviour escalating. That view was plainly open on the evidence. It was an approach inconsistent with Regulation 49 and the applicable Departmental policies, which emphasise that officers are to remain calm, in order both to model appropriate behaviour to detainees and to assist in calming detainees who misbehave, rather than heightening, or inciting, further or more extreme misconduct. That, Mr Brown failed to do. 48 Mr Brown was undoubtedly abused by both detainees and was obliged to respond, in order to deal with that behaviour. We are satisfied that the evidence, including Mr Brown's own explanation of his reactions, particularly that given in cross examination, confirmed that he responded to the two detainees' abuse in a considerably aggressive way, with the result, on both occasions, that the detainee was assaulted and the situation escalated to the point where the use of force became necessary. It was then that the provisions of Regulation 50, came into play. Before that point, Mr Brown was obliged to conduct himself in accordance with Regulation 49 and the policies which emphasised what approach was to be taken, in order to attempt to defuse such a situation, before giving an instruction to a detainee to move locations and to use force, if the instruction was repeatedly refused. Even when acting in accordance with Regulation 50, only force reasonable in the circumstances was permitted to be used. 49 Given Mr Brown's aggressive response to the detainee behaviour he had to deal with on both occasions from the outset, that he then fell into the error of using force excessive in the circumstances with which he had to deal, when the use of force became necessary, also cannot be doubted, despite the various evidence relied upon so forcefully in Mr Reitano's submissions. 50 The incident involving RH was certainly the less serious of the two incidents, given that it involved only one detainee, alone in the unit. The circumstances involving NB, it seems to us, were simply unarguable. In both cases there was a serious failure of judgment on Mr Brown's part, which resulted in him assaulting both detainees. The evidence does not permit us to accept the submission that neither detainee was injured. We accept that these assaults were not at the serious end of the scale, by any means and that the injuries sustained by the detainees were relatively minor. That, no doubt, explains the police decision not to lay charges. The question of what was appropriate to be done in the employment context was a different matter, one for the Director General to determine under this statutory scheme. In making that decision, the Director General could plainly not overlook the outcome of Mr Brown's approach, which unnecessarily escalated both incidents and resulted in Mr Brown's own injury and that of another officer in the second incident. 51 There can be no doubt on the evidence that the misconduct alleged occurred, as his Honour found. It was proven to the requisite standard, even on the evidence given by Mr Brown himself in cross examination, in relation to having pushed RD, for example and having used unauthorised techniques of restraint. The evidence of other witnesses, as well as what can be seen in the CCTV footage, puts the conclusions reached beyond argument. We are satisfied that no error in his Honour's conclusions was shown in this respect. Indeed, to the contrary, we take the view that his Honour endeavoured to put Mr Brown's behaviour into the best available light. Was dismissal warranted in the circumstances? 52 Under the statutory scheme, misconduct having been established, it was for the Director General to determine what disciplinary action to take. Before making her decision, she met with Mr Brown. The transcript of the interview was in evidence. Having considered what he advanced, the decision made was that dismissal should follow. As to this decision, his Honour observed: 119 As I said earlier, I find myself generally in agreement with the conclusions and findings of the two investigators. It will be immediately apparent that the investigators were not called upon, (nor indeed would it have been appropriate) for them to determine what penalty should be applied. That decision resides exclusively with the Director General and there are a range of penalties under s 41(2) of the Public Sector Employment and Management Act available; from a caution to summary dismissal. Given that the Director General had two conclusive reports with specific adverse findings and considering her wide discretion to determine penalty, I doubt if I had put myself in the position of the decision maker, that I would have arrived at a different conclusion to her. ... 53 Given what Mr Brown said to the Director General by way of explanation of his conduct at his interview with her, his Honour's observations are unsurprising. They no doubt led to his Honour's earlier observation that Mr Brown utterly refused to accept any failure on his part and that he lacked contrition. His Honour's observations must also be understood in the context where, under s 42 of the Public Sector Employment and Management Act, the disciplinary action available to the Director General to take, apart from dismissal, was: (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. 54 Unsurprisingly, given what his Honour had said, Sams DP expressed no views as to what other disciplinary action the Director General ought to have considered, or taken in the circumstances, other than dismissal. That no doubt also reflected the parties' contest below, with the respondent arguing that there had been no assault and no misconduct and the appellant defending that attack. His Honour went on to observe at [119]: Nevertheless, it is trite to observe that the mandate under which the Director General acted is very different to that under which I must determine this matter. Plainly, there is no reference under the Public Sector Employment and Management Act to considerations of whether a particular dismissal might be said to be 'harsh, unreasonable or unjust'. That is not to say, of course, that in exercising her discretion under that Act that the Director General was not obliged to consider the broader concept of fairness, both in a substantive and procedural sense (see s 45). There is no doubt in my mind that the Director General properly and appropriately considered all the relevant factors consistent with her obligations under the Public Sector Employment and Management Act . That said, I have formed the view that the applicant's dismissal was neither unreasonable or unjust. However, after balancing the range of factors I earlier identified in paras 117 and 118, I have also come to the view, and not without serious reservations, that the applicant's dismissal was 'harsh' within the meaning of the Act, and within the commonly accepted understanding of how that term applies in an industrial context. 55 His Honour came to this view, despite having earlier held: 116 The assault of a young detainee by a juvenile justice officer, and moreover by an officer in a position of some authority, would, prima facie , be an authoritative basis for a conclusion that the employee's conduct had struck at the very heart of the employment relationship. With nothing more, it would be unlikely that there would be any grounds for this Commission to intervene in respect to the employee's consequent summary dismissal. That the applicant's conduct was serious, cannot be disputed. However, for reasons which I will shortly outline, I would determine that the applicant's conduct was not such as to permit a finding that his conduct constituted a wilful repudiation of his contract of employment, thereby justifying summary dismissal. 56 The factors then identified by his Honour as warranting the conclusion that summary dismissal was not warranted in the circumstances were: If the misconduct is proven, was the seriousness of the misconduct such as to warrant the applicant's dismissal? 117 While I have reached an answer to this question, it has been a most difficult exercise. It has involved the fine balancing of a number of countervailing factors of varying weight. On the one hand, the matters pointing in the applicant's favour, include the following: 1. His five years service with the respondent. 2. His long work experience involving children, particularly those in the Aboriginal community. 3. His otherwise unblemished employment record. 4. Severe financial and personal loss to the applicant in circumstances where he is the sole parent of four dependent children. 5. There were no charges of assault preferred against the applicant. 6. There were no deliberately incurred injuries received by the two detainees. 7. The undoubted provocation by the two detainees, including actual physical violent contact, their disdain for authority and refusal to comply with direction. 8. Certain limited admissions made by the applicant during his evidence (accepting that he "pushed" RD). 9. Evidence that the applicant reacted well with the detainees. 10. Although not witnesses to the entire incident, five of the applicant's work colleagues accepted that the applicant's conduct was within the range of expected responses. 11. My finding, contrary to that of Mr Madden, that the applicant did not choke RD. 118 Balanced against these factors, are the following: 1. The paramount importance of protecting young detainees in custody. 2. The seriousness of the applicant's conduct. 3. The adverse findings of two independent investigations which are generally supported by the Commission. 4. The consequent breaches of Departmental policies and guidelines. 5. A failure by the applicant to accept that he did anything wrong and his general lack of contrition. 6. The fact the applicant was a senior employee who must have known what was expected of him as a Unit Co-ordinator giving example to others. 7. The fact that there were two incidents relatively not far apart. It could not be said that either one was a "one off" or isolated incident. 57 In so approaching the question before him, we are satisfied that his Honour fell into error, as the appellant complained. While the considerations which his Honour sought to balance, were undoubtedly relevant to a determination of whether or not the decision to dismiss was 'harsh, unreasonable or unjust in the circumstances', as his Honour later went on to consider, they were not relevant to a determination of the seriousness of the misconduct in question. 58 Even if the concept of summary dismissal had been relevant to what his Honour had to determine, in the approach adopted his Honour did not adhere to that discussed by Cook J In Re Dispute - Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371 at 374, which has been repeatedly approved in binding Full Bench decisions. There his Honour said: ... the question of whether the conduct of an employee amounts to misconduct justifying instant dismissal would generally depend upon whether or not the act complained of can properly be regarded as deliberate or wilful or of such a nature as to strike at an essential element in the contract of service, namely, obedience to the lawful commands of the employer and the right of the employer to enforce discipline. ... 59 That depends on an examination of the misconduct in question, not upon other considerations such as an employee's history of previous employment, or the personal consequences of a dismissal. Such matters arise for consideration at another point, if the dismissal is challenged in proceedings such as this. What was said by Smithers and Evatt JJ in North v Television Corporation Ltd (1976) 11 ALR 599 at 608-9, is also of assistance in this context: 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. 60 On the evidence here, particularly the evidence of the explanations advanced by Mr Brown to the two investigators and to the Director General, as to his conduct in the two incidents, there can be no doubt that the assault and use of excessive force on each of the two occasions was serious, being both deliberate and wilful. One example of this evidence will suffice, to explain why that view may not be avoided. 61 Mr Brown told Ms Alder that in relation to the NB incident, that his view of another youth officer, who stepped in to try to calm the detainee down: CA: Did you observe that she was calming the situation down at that point? Or trying to calm him down? EB: I don't believe that. That's a load of bullshit. And she had no reason to approach detainee B because I've already instructed that he would be moved to his room. And he refused the instruction, not once, not twice, but three times. So why did she think that she had, had an option to come over there and interrupt? 62 An obvious reason why the second officer might have intervened, in what was plainly a potentially dangerous situation which needed to be defused, given the presence of some 14 detainees in the dining room during a meal, was what the Department's Use of Force policy recommended. This included, if the situation permitted, a staged response to a detainee refusing an order to move from one location to another, which included using force as a last resort; prolonging verbal interaction as long as possible and exhausting a variety of verbal strategies, by involving a variety of staff; giving a detainee an adequate opportunity to conform, before using force; asking another staff member to encourage a detainee to follow instructions before using force; and finally using a minimum of two staff, in order to use force. On the evidence there was no reason why the second officer who stepped in to calm NB down, ought not to have done so, in order to defuse this situation. To the contrary, Mr Brown himself ought to have asked for such assistance, in order to try to defuse this dangerously escalating situation. 63 Mr Brown's further explanation for his disagreement with the second officer's approach was that: ES: One thing is, one, I don't feel that she should have put her arms around him and try to do whatever she tried to do. Two is that I expect when I give an instruction that it be followed. And three is that when a detainee is instructed to do something and they don't comply, well necessary force is warranted to remand them and they've already been told about that. 64 Mr Brown's attitude plainly ignored what the Use of Force policy envisages. As the respondent submitted, the policy itself makes clear that force 'should always' be an option of last resort, 'with the exception of the circumstances outlined in clause 50'. That does not mean that in such circumstances, namely directing a detainee to move to another location, that force should always be a first resort, nor should it even be a final resort, if the situation sensibly does permit another approach. That is a matter for an officer to judge, given the circumstances. In these two cases there can be no doubt that Mr Brown had available options, other than using force as he did. He did not use them. Instead, he assaulted the two detainees and on any view, used more force than was reasonably necessary in the circumstances. 65 His Honour's approach to the question of misconduct, also appears to have overlooked a decision to which he had earlier made reference in his decision, namely New South Wales Nurses' Association (on behalf of Colin Prior) v South Eastern Sydney & Illawarra Area Health Service (2007) 164 IR 225,: 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]. 66 While his Honour referred to this decision and then turned to apply the standard of proof which fell upon the respondent in these proceedings as that discussed in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 - 363 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449 - 450, per Mason CJ, Brennan, Deane and Gaudron JJ, his Honour came to the view that misconduct warranting summary dismissal had not occurred, given the matters which he took into account by way of 'balance'. 67 The result was that his Honour concluded that despite the seriousness of the misconduct found, it was not such as to have warranted summary dismissal and that the dismissal was harsh, because of the personal and economic consequences which flowed for Mr Brown. For the reasons which we have explained, we are satisfied that his Honour fell into error in adopting that approach. 68 For the appellant it was also complained that in coming to his conclusions, his Honour failed to take any account of the statutory scheme under which Mr Brown was employed. His Honour certainly referred to the parties' submissions and annexed to his decision extracts from certain legislation, regulations and policies, but we accept that there was no reference made to such matters, in his Honour's reasoning. 69 We also accept that the seriousness of any particular misconduct, must be determined in the particular context of the employment in question. In this case, Mr Brown's work was required to be performed in the context of the statutory scheme to which we have already made reference. It is in that context that we have come to the conclusion that his Honour's decision that the misconduct was not such as to warrant dismissal was not open on the evidence. 70 As his Honour found in the matters which he took into account in the balance, Mr Brown was the Unit Co-coordinator on duty; a senior employee who breached Departmental policies and guidelines; then refused to accept that he had done anything wrong and generally lacked contrition for his undoubted misconduct. Mr Brown also failed to adhere to the applicable Regulations. 71 Contrary to the submissions advanced for the respondent on appeal, Mr Brown did assault the two detainees involved in the incidents in question and did use excessive force to restrain them, in breach of Regulation 50. His conduct otherwise in the two incidents fell short of what was required of him by Regulation 49. The submission that in the circumstances with which he was confronted, there was not time for him to take the steps envisaged by the Use of Force policy may also not be accepted. To the contrary, when another officer sought to do precisely that in the NB incident, Mr Brown did not think to emulate her, rather he perceived that approach to be an unnecessary interference with how he had deliberately determined to handle the situation. The restraint then used by Mr Brown can best be described as a unilateral charge, which forced the detainee into a window, engendering an extreme reaction on the detainee's part, who then was not restrained until some 7 officers became involved in what can only be described as an unnecessary and dangerous melee, in which both the detainee and at least one other officer apart from Mr Brown was injured. Again, given the presence of other officers, that Mr Brown had the means and time to adopt a different approach, consistent with the Regulations and applicable policies, was entirely apparent. 72 Sams DP did not accept Mr Brown's evidence that he charged the detainee because he believed that he was about to be attacked. This was challenged by extensive reference to the evidence. Having seen the CCTV footage, we understand why his Honour came to that conclusion. Even accepting, however, Mr Brown's evidence, we cannot accept that his reaction was warranted, given all of the evidence. It was he who approached the detainee. He could have stepped away. There were plenty of other officers who could have dealt with the situation. Again, he sought to take a detainee on alone, in an unnecessarily aggressive response, which resulted in an assault and the use of unreasonable force. 73 In the earlier RD incident, there was also another officer available to assist, but Mr Brown's evidence that he had asked for assistance was denied by that officer and not accepted by Sams DP. That officer's explanation for not stepping in was because he did not wish to be seen to be undermining Mr Brown, who seemed to have the situation under control. There can be no doubt that RD was controlled, albeit the force used to achieve that result was not reasonable in the circumstances. Mr Brown was the senior employee. The policy required that he ask for assistance, instead, as he accepted, he dealt alone with the situation, pushing the detainee and using unauthorised means of restraint. The result was that the force used in this instance was also unnecessary and in excess, on any view, of what the situation required. 74 There can be no doubt on the evidence that his Honour's conclusion that the misconduct did not warrant dismissal, was not open on the evidence. The Director General's conclusions were entirely open and properly available on what the investigations had revealed. This was undoubtedly serious misconduct warranting dismissal. Was the decision to dismiss nevertheless harsh, unreasonable or unjust? 75 Sams DP concluded that 'There can be no room to doubt that the applicant's dismissal has had severe and deleterious consequences for his personal and economic circumstances', after referring to the High Court's observations in Byrne v Australian Airlines Limited (1995) 185 CLR 410, where it was observed at 465: ... 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. 76 While the appellant complained that his Honour gave no reasons for that conclusion, it is apparent that those reasons were connected with the consequences of the notification given to the Commission for Children and Young People, as the result of the misconduct proven and the personal circumstances identified in the balancing factors which appear at [117]. At [99] Sams DP had also earlier observed: In my opinion, the seriousness of the allegations against the applicant cannot be overstated. On the other hand, nor can the implications for the applicant of his dismissal. As a result of the adverse findings by the investigators, the applicant has been reported to the Commission for Children and Young People and the Ombudsman. It must be said, that his prospects of future employment in child related employment are likely to be very limited. 77 In coming to the conclusion that the personal consequences of the dismissal were harsh, so that the dismissal itself was harsh, in the statutory sense, we are also satisfied that his Honour fell into error, which must be corrected on appeal. The question of whether serious misconduct warranting dismissal is harsh, so as to warrant relief under the Act, requires a balance, as his Honour observed, between the seriousness of the behaviour and the personal consequences for the employee. 78 While his Honour referred to the High Court's observations in Byrne, it should not be overlooked in referring to that decision that McHugh and Gummow J also went on to observe at 467: 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." The above propositions should be accepted as applicable to the present appeals. However, it should be emphasised that the present task is to construe the Award and that nothing now said necessarily determines the meaning of the phrase "harsh, unjust or unreasonable" in any other setting. 79 It is in this way that the question of whether his Honour's conclusion that the dismissal was harsh, must be considered on appeal. We are satisfied that a proper balancing of the factors identified by his Honour as being relevant to that consideration, must be weighed together with the conclusions which we have reached, namely that the seriousness of the misconduct established on the evidence did warrant dismissal under the statutory scheme which governed Mr Brown's employment. His conduct had involved him in a breach of the requirements of Regulation 50, in the way in which we have explained, matters not dealt with by his Honour. The conclusion that the dismissal was not harsh, as his Honour found, becomes irresistible. 80 His Honour's decision makes it apparent that he reached the conclusion which he came to with the greatest difficulty. We have explained the errors into which his Honour fell in the approach adopted. Had those errors been avoided, the difficulty his Honour referred to, would no doubt have fallen away. That the result of his conduct has had regrettable economic consequences for Mr Brown is undeniable, especially when consideration is given to the statutory obligation which fell on the appellant to report his conduct to the Commission for Children and Young People. Yet, that cannot outweigh the seriousness of the misconduct established on the evidence. 81 In this respect the circumstances in this case are not dissimilar to those which arose for consideration in Mossfield. There the view which had been taken at first instance was that extenuating circumstances existed, which made the degree of culpability attaching to the applicant's act of punching, which had led to his dismissal, significantly less than it might otherwise have been. This made the dismissal harsh, both in its consequences for the personal and economic situation of the applicant and in its disproportionality to the gravity of the misconduct. On appeal the Full Bench concluded at [26] that there were, in fact, no such extenuating circumstances 'sufficient to support a finding that the dismissal was harsh.' 82 Likewise in the circumstances of this case, given the seriousness of the misconduct established on the evidence, the personal and economic consequences of the dismissal cannot leave open the conclusion that this dismissal was harsh, in the statutory sense. The decision that reinstatement was impracticable and re-employment should be ordered 83 Given the conclusions which we have reached, it is strictly unnecessary to deal with this aspect of the appeals, but given his Honour's decision and the way in which the appeals were argued, we take the view that we should deal with these aspects of his Honour's decisions, albeit briefly. 84 Both parties complained at his Honour's failure to give reasons for the conclusion that reinstatement was not practicable; that was not an argument advanced by the appellant below. Having observed that 'I did give serious thought to concluding this matter without making any orders in respect to reinstatement, re-employment or compensation. That the Commission has a discretion to make no orders in a particular case, is undoubted', his Honour's only explanation was: 123 In my view, having regard to the conditions I intend to place on the applicant's re-employment, it would be impractical to order reinstatement in this case. In order to ensure the applicant undertakes a period of strict supervision, I intend to order his re-employment as a Youth Officer at Reiby Juvenile Justice Centre. In addition, the applicant is to be placed on probation for six months and is to undergo retraining on the Department's Use of Force Guidelines as soon as it can be arranged. His file is to record that he is on a last warning and any future indiscretion may result in his dismissal. In view of the aforementioned findings, I do not consider this to be an appropriate case for orders in respect to lost remuneration and such orders are refused. However, I would recommend that the respondent review restoring the applicant's continuity of service after the satisfactory completion of the six months probation period. 85 Perhaps his Honour was under a misapprehension that Mr Brown still held a Unit Co-ordinator's position. Had the parties been heard, this could have been clarified. There was, however, also no explanation given as to why it was concluded that re-employment in the position of youth officer was available and suitable in all of the circumstances. In adopting this approach his Honour plainly erred. Not only did he give neither party an opportunity to address him on these matters, he gave no reasons for the conclusions reached, as he was bound to do. (See for instance Entertainment Distributors Company Pty Limited and Anor v Burnard and Ors (1993) 49 IR 446 at 453-4 and Webb v Goulburn Masonic Village (2004) 136 IR 309 (at [33] to [38]).) 86 The difficulty with the orders made is also patently clear. While there was undeniably power to impose conditions, either in respect of an order of reinstatement or re-employment (see s 89(8)), the order of re-employment had the effect of restoring Mr Brown to the same substantive position which he held at the time of his dismissal. Thus why re-employment to such a position was ordered when reinstatement was found to be impracticable, was unclear. The trial of the Unit Co-coordinator position had by then come to an end. While ostensibly not reinstated, Mr Brown was nevertheless put back into the same substantive position, performing the same work, at the same detention centre, working with the same detainees. 87 In the context of this statutory scheme, in the exercise of its functions, including a decision to order reinstatement or re-employment, the Commission must also have regard to the public interest (See s 146(2)). That means that a consideration of the consequences of the particular conduct for the employer, as well as the employee, when ordering that an employment relationship be restored, cannot be overlooked, having in mind the particular employment in question. 88 While his Honour had the power to impose conditions on any order of reinstalment or re-employment, the parties were undoubtedly entitled to be heard, as to that question. While the appellant complained that his Honour had given no explanation of what type of supervision he had in mind, the notion that Mr Brown was to work under strict supervision upon his re-employment, did not in fact find its way into the orders actually made. They were: 1. The respondent, the Department of Juvenile Justice, shall re-employ the applicant, Mr Elvin Brian Brown, as a Youth Officer at the Reiby Juvenile Justice Centre. 2. The applicant, Mr Elvin Brian Brown, shall be re-employed within 21 days of this decision, on the following conditions: a) the applicant shall be on probation for a period of six months commencing from the date of his re-employment; b) the applicant shall undergo retraining on the Department's Use of Force Guidelines as soon as it can be arranged; and c) the applicant's personnel file shall record, that as a consequence of this decision, he is on a final warning. 89 The parties also complained that it was not apparent what 'probation' meant in the order made. Given that Mr Brown was a public servant and the provisions of the Public Sector Employment and Management Act which deal with probationary employment, that the Commission had the power to make such an order, was also in question. (See s 23 Appointments on probation.) 90 It is unnecessary to further consider this aspect of the appeals. Suffice it to observe that this was another reason why leave to appeal his Honour's decision had to be granted. Orders 91 For the reasons given, we make the following orders: 1. Leave to appeal is granted in both the appeal and cross appeal. 2. The appeal is upheld and the orders set aside. 3. The cross appeal is dismissed. ------------------------ 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.