Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2020] FWC 1863 of Deputy President Kovacic at Canberra on 9 April 2020 in matter number U2019/2509.

[1] Mr Adam Heading has lodged an appeal, for which permission to appeal is required, against a decision of Deputy President Kovacic issued on 9 April 2020[1] in which Mr Heading's application for an unfair dismissal remedy against his former employer, ACT Government Justice and Community Safety, was dismissed. In the decision, the Deputy President found, relevantly, that there was a valid reason for Mr Heading's dismissal and that his dismissal was not unfair. Mr Heading contends in his appeal that the Deputy President erred in finding that there was a valid reason for the dismissal.

[2] The factual background to the matter is as follows. Mr Heading was employed by the respondent from July 2007 until his dismissal in February 2019 as a Correctional Officer Class 1 (CO1) at the Alexander Maconochie Centre (AMC), a correctional facility in the Australian Capital Territory. On 18 June 2018, Mr Heading was involved in an incident at the AMC in which he used force on a detainee (Detainee B) who was refusing to comply with a direction to return to his cell. The incident occurred in the Management Unit of the AMC. Detainees who have demonstrated particularly violent or aggressive behaviour are placed in the Management Unit, and in the relevant section of the unit detainees are not allowed to mix with other detainees and are allowed only one hour per day of exercise alone outside of their cell. Correctional officers in the Management Unit are not armed or equipped with any restraint devices.

[3] The incident was captured on CCTV (without audio) from three different angles. The incident occurred when Detainee B was released from his cell for his daily hour of exercise. It is not in dispute that Detainee B had been involved in an ongoing argument involving mutual abuse and threats with another detainee (Detainee D) who was locked in his cell. Mr Heading, together with another correctional officer (Mr T), were on duty at the time and located in the control room. After Detainee B refused to comply with instructions to move away from Detainee D's cell and return to his own cell, Mr Heading and Mr T left the control room to deal with the situation. Mr Heading took the lead, and the CCTV footage shows that he positioned himself between Detainee B and Detainee D's cell door and then moved forwards, causing Detainee B to walk backwards. After a few seconds, Detainee B stopped, and Mr Heading stood facing him in close proximity. After a pause, Mr Heading grabbed Detainee B in a bear hug and threw him sideways onto the floor, with Mr Heading ending up on top of Detainee B. Mr T called for backup, and further correctional officers arrived at the scene and defused the situation.

[4] On 20 June 2018, Mr Heading was suspended with pay, and the following day Mr Jon Peach, the Executive Director of ACT Corrective Services, informed him that an investigation would be conducted into an allegation that he had used excessive force against Detainee B. The investigation resulted in an Investigation Report which was provided to Mr Peach in early November 2018 which found that the allegation was sustained. On 3 December 2018, Mr Peach sent correspondence to Mr Heading containing findings of misconduct against him and informing him that Mr Peach's preliminary view was that Mr Heading's employment should be terminated. The key finding against Mr Heading was that he had used unreasonable force on Detainee B and had thereby misconducted himself and contravened the Corrections Management Act 2007 (ACT) (CM Act). After receiving and considering Mr Heading's response, Mr Peach determined to proceed with the termination of Mr Heading's employment, and his dismissal took effect on 18 February 2019.

[5] Section 138 of the CM Act sets out when the use of force against a detainee is authorised, and s 139 sets out how force is to be applied, as follows:

(1) A corrections officer may use force that is necessary and reasonable for this Act, including for any of the following:

(a) to compel compliance with a direction given in relation to a detainee by the director-general;

(b) to act under section 126 (Searches - use of force);

(c) to prevent or stop the commission of an offence or disciplinary breach;

(e) to prevent unlawful damage, destruction or interference with property;

(g) to prevent a detainee from inflicting self-harm;

(2) However, a corrections officer may use force only if the officer believes, on reasonable grounds, that the purpose for which force may be used cannot be achieved in another way.

(1) A corrections officer may use force under this part only if the officer -

(a) gives a clear warning of the intended use of force; and

(b) allows enough time for the warning to be observed; and

(c) uses no more force than is necessary and reasonable in the circumstances; and

(d) uses force, as far as practicable, in a way that reduces the

(2) However, the corrections officer need not comply with subsection (1) (a) or (b) if, in urgent circumstances, the officer believes, on reasonable grounds, that doing so would create a risk of injury to the officer, the detainee or anyone else.

the detainee is assaulting someone or engaging in self-harm.

[6] Mr Heading contended before the Deputy President that there was no valid reason for his dismissal because he acted in self-defence in response to a threat of imminent harm from Detainee B and accordingly that his use of force was authorised, and that he applied force in accordance with the respondent's protocols on the use of force. He also contended that his dismissal was harsh because it was disproportionate as a penalty to any misconduct he may have committed, and other disciplinary measures would have been appropriate.

[7] The decision sets out the factual background and the cases respectively advanced by the parties. The Deputy President noted that one of the fundamental propositions advanced by Mr Heading in his case was that he had not committed serious misconduct because he acted in self defence.[2] The Deputy President recorded in the decision that Mr Heading gave evidence that, among other things, "he feared for his safety when the detainee threatened to 'smash his f....g head in', adding that he formed the view that he needed to get closer to the detainee to minimise the risk of a 'one punch' injury", that "he knew the detainee was about to throw a punch because of the tone of his voice and eyes, adding that he had seen it a thousand times before", and "his last direction to the detainee was to return to his cell or force would be used".[3] The Deputy President also recorded that Mr T gave evidence that while being escorted back to his cell, "the detainee stopped [and] threatened to 'smash' the Applicant and then made numerous other threats" and "at that stage there was an imminent threat" and "at the time he was convinced he saw the detainee's left hand move".[4]

[8] The Deputy President then dealt with the matters required to be considered under s 387. In dealing with whether there was a valid reason for the dismissal under s 387(a), the Deputy President first noted that it was not disputed that the relevant conduct occurred, with the question being whether this constituted a valid reason in light of Mr Heading's case that he acted in self-defence or, alternatively, that the use of force was appropriate in the circumstances. The Deputy President then addressed this question by reference to the CCTV footage of the incident. The Deputy President described in detail and chronologically what he observed in each of the three pieces of CCTV footage. In relation to the first and longest piece of CCTV footage, the Deputy President described what was shown as to the critical part of the incident as follows:

"• 27 sec: the detainee makes initial backward movement and continues to move backward across the room, with the Applicant walking forward virtually toe-to-toe with the detainee;

• 36 sec: the detainee stops, the Applicant is about 12-18 inches away from the detainee and is pointing with his left arm to the detainee's cell, the detainee's right hand comes forward slightly (appears just in front of his right leg as he is standing still);

• 37 sec: the Applicant is virtually face-to-face with his left arm still pointing to the detainee's cell and his right arm on his belt/hip, the detainee is standing still;

• 39 sec: the Applicant drops his arms and moves closer to the detainee before grabbing him in a 'bear hug' and taking the detainee to the floor, just prior to grabbing the detainee the Applicant appears to tilt his head slightly to his right and almost shrug his shoulders with the palms of both hands facing up (as one might do when they say 'Ok if that's the way it is')..."

[9] The second piece of footage did not show the critical part of the incident. In relation to the third piece of footage, the Deputy President relevantly found:

"• 29 sec: the detainee stops and comes to a standstill;

• 30 sec: the detainee's right arm comes forward by about 30 degrees, his hand appears to be open (i.e. not clenched);

• 32 sec: the detainee is standing still and is taken down by the Applicant using the 'bear hug' technique..."

[10] The Deputy President then made the following findings:

"[41] I am unable to discern from the first and third pieces of CCTV footage the detainee saying anything to the Applicant prior to being taken down by him, nor am I able to discern anything which would suggest that the detainee was preparing to strike the Applicant. Based on my viewing the CCTV footage, the footage does not support a finding that the Applicant resorted to use of force in self-defence. If anything, the footage suggests that the Applicant's use of force was unprovoked. In this regard I note the Applicant's oral evidence that there was no evidence on the CCTV footage of movement by the detainee before he took him down and Mr T's oral evidence that the CCTV footage did not indicate the detainee saying anything when he stopped. While it is clear from the CCTV footage that the detainee did not willingly return to his cell, there is nothing in any of the CCTV footage which supports the Applicant's contention that his use of force was appropriate in the circumstances, particularly as the detainee was standing still with his arms at his side in the seconds before he was taken down by the Applicant. It is also clear from the CCTV footage that the detainee said something to the Applicant after he was taken down, both prior to and after he was handcuffed. It is possible that the threats which the Applicant and Mr T contended were made by the detainee were made after he had been taken down. However, in the absence of any audio it is impossible to confirm whether this was the case or whether the detainee threatened the Applicant before he was taken down."

[11] The Deputy President then referred to the relevant provisions of the CM Act and concluded that, since the CCTV footage did not support a finding of self-defence or that the use of force was appropriate, Mr Heading's actions in taking down the detained were not authorised by the Act. The Deputy President then said:

"[44] The Applicant also gave evidence that there was no other way he could have dealt with the situation and that he did everything to avoid use of force. Not only does the CCTV footage not support the Applicant's evidence, his evidence was also in my view comprehensively contradicted by Mr Peach's evidence. In my view Mr Peach's evidence was particularly compelling having regard to his 27 years' experience in the sector, both overseas and in Australia. Mr Peach's dispassionate observations regarding the Applicant's actions, the opportunities for the Applicant to step back to put space between himself and the detainee and the alternatives to the use of force open to the Applicant in my view reflected a rational, objective, experienced and almost clinical analysis of the incident. For these reasons, I attached greater weight to Mr Peach's evidence to that of Mr G and Mr K whose evidence by comparison I found to be somewhat shallow.

[45] When taken together, the above considerations and analysis support a finding that there was a valid reason for the Applicant's dismissal related to his conduct."

[12] In relation to s 387(b) and (c), the Deputy President found, in substance, that Mr Heading had been afforded procedural fairness and accordingly these considerations did not point to the dismissal being unfair. As to s 387(d), the Deputy President found that there was no refusal to allow a support person, and he considered that the s 387(e), (f) and (g) matters were not relevant to the matter before him. In relation to s 387(h), the Deputy President considered and rejected as not relevant propositions advanced by Mr Heading that he had received inadequate training in de-escalation and had been treated more harshly than others (about which he found that there was no probative evidence). The Deputy President rejected the submission that Mr Heading's conduct was at the lower end of the scale because his use of force was "not unprovoked" and found instead that Mr Heading's use of force was unprovoked and fell at the upper end of the scale and that dismissal was not disproportionate to his conduct. The Deputy President treated as not relevant the fact that Mr Heading had been counselled in 2012 over the use of force on a detainee.

[13] The Deputy President concluded:

"[69] In this case I have decided that for the reasons outlined above the Applicant's use of force was inappropriate, unnecessary, avoidable, unprovoked and unauthorised. As such, despite the Applicant's eleven years' experience with the Respondent, his conduct warranted dismissal. The nature of the detainee involved in the incident is not in my view a mitigating factor in this case, despite his failure to follow the Applicant's directions to return to his cell. The detainee's recalcitrance and agitation does not in my view justify the Applicant's conduct, particularly in view of the alternative actions available to the Applicant to de-escalate the situation to achieve compliance."

[70] Against that background and having considered all the criteria in s.387 of the Act, I find that the Applicant's dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed. An order to that effect will be issued in conjunction with this decision."

[14] Mr Heading's notice of appeal contained six grounds of appeal which, taking into account that he was not legally represented in the appeal proceedings, may best be summarised as follows:

(1) The law of self defence was not applied because it was not proven beyond reasonable doubt that Mr Heading did not believe at the time of the conduct that it was necessary for him to do what he did the defend himself. The Deputy President based his decision on viewing the CCTV footage and not all the evidence available including the witness statements and the investigator's reports.

(2) The Deputy President erred in finding that Mr Peach looked in part at Mr Heading's personnel file, when in fact Mr Peach advised during the hearing that he did not.

(3) The Deputy President erred in not seeking evidence as to disciplinary outcomes in similar cases and instead finding that there was a lack of evidence about this.

(4) The Deputy President erred in finding that the incident which led to the dismissal was not an unusual situation, when in fact the number of detainees who were rated as V1 Violent Offenders was a small proportion of the total, and those engaging in actual violent behaviour constituted an even smaller proportion.

(5) The Deputy President erred by giving as an example of when the use of force is justified under s 139 of the CM Act, namely that the detainee is assaulting someone or engaging in self-harm, but inconsistently with this failed to take into account that Mr Heading was moving Detainee B because he was prompting Detainee D to self harm.

(6) The evidence given by Mr Peach that the bear hug manoeuvre is not taught is misleading, in that the respondent's documentation shows that, when faced with imminent attack, a corrections officer can resort to any defence action they have familiarity with.

[15] In his written submissions, Mr Heading gave a narrative of the incident which included the following propositions:

• he was concerned about Detainee B inciting Detainee D, who has a history of suicide attempts and lighting fires in the AMC, to self-harm;

• Detainee B disregarded multiple directions to move away from Detainee D's cell, and there was a potential for a situation to develop that had implications for Detainee D's safety;

• his approach to Detainee B was initially successful in moving him backwards towards his own cell;

• approximately two metres from his cell, Detainee B suddenly stopped, and Mr Heading's momentum left him up close to Detainee B;

• Detainee B then made "a swift and significant verbal physical threat that I believed was about to occur and feared for my safety"; and

• Mr Heading took the action he did to prevent being struck and to avoid the threat from eventuating, and made the decision to take this action in an instant.

[16] Mr Heading submitted that it was in the public interest for him to be granted permission to appeal because:

• it was in the public interest to have fair hearings and processes that ensure workers are not overly penalised for undertaking tasks confronting them in the course of their duties;

• there were significant errors of fact in the decision;

• the law of self-defence had been ignored;

• the respondent had provided misleading information about the type of defensive tactics acceptable in the workplace; and

• there was a breach of the agreed disciplinary process in the enterprise agreement.

[17] As to his grounds of appeal, Mr Heading submitted that:

• The Deputy President ignored the existence of a physical threat to Mr Heading, and relied solely on the CCTV footage to find that it was not possible to say that such a threat had been made and took no account of the witness evidence about this;

• the absence of audio in the CCTV footage meant that it was unsound to rely upon it only without considering the witness evidence;

• the respondent's training documents explicitly stated that if correctional officer could take action of noticed "subtle signs of danger" or if "something feels wrong", and in taking action they could use their "experience in martial arts, boxing or defence systems" as well as the skills taught in training;

• the "bear hug" used by Mr Heading accordingly was an authorised use of force;

• the use of force was unusual, and the respondent's contention to the contrary was false;

• Mr Peach said he did not look at the whole of Mr Heading's personnel file in deciding that Mr Heading should be dismissed, which was contrary to the requirement in clause H10.3 of the ACT Corrections Enterprise Bargaining Agreement that any mitigating factors and the employee's previous employment history had to be taken into account in determining any disciplinary sanction; and

• as a result, a commendation received by Mr Heading for saving a detainee's life in 2013 was not taken into account but prior minor counselling in 2012 was.

[18] The respondent submitted that:

• it was not in the public interest to grant permission to appeal because Mr Heading had not identified any arguable error in the decision;

• there was no basis for the contention that Mr Heading did not receive a fair hearing;

• the proposition that the "law of self-defence" was ignored was not supported by the evidence, and Mr Heading could not rely on self-defence since the situation in question did not justify the use of force;

• the Deputy President did not make findings about the type of defensive tactics acceptable at the AMC, so the alleged misleading evidence was not relevant to the appeal;

• the undisputed evidence showed that the respondent took the steps required to follow the disciplinary process in the enterprise agreement;

• there was no rational connection between the fact that the Deputy President could not draw a definitive conclusion about whether Detainee B made threats before he was taken down and the proposition that the Deputy President could have relied on other evidence to establish this;

• the Deputy President undertook a detailed analysis of the CCTV footage in its entirety in conjunction with the evidence given by the witnesses during the hearing;

• even if it was accepted that Detainee B threatened Mr Heading before he was taken down, Detainee B appears on the CCTV to comply with Mr Heading's directions by going backwards to his cell, and his body language does not indicate that he was preparing to retaliate as his arms were next to his body;

• the training document relied on by Mr Heading had to be read in its entire context, the use of the "bear hug" was not approved by the respondent, and in any event Mr Heading could not establish that his actions against Detainee B were in self defence;

• the issue raised concerning the respondent's alleged false testimony that the use of force was not an unusual situation did not identify any error of fact in the decision; and

• the disciplinary procedure in the enterprise agreement required that the employment history be considered, not that the entire personnel file be perused, and Mr Peach's evidence demonstrated that he did consider the factors required by clause H10.3 of the enterprise agreement.

[19] This is an appeal to which s 400(1) of the FW Act applies. Accordingly, we are not permitted to grant permission to appeal unless we are satisfied that it is in the public interest to do so and, to the extent that the appeal is on a question of fact, it must be made on the ground that the decision involved a significant error of fact.

[20] We are persuaded that ground 1 of the appeal raises an issue of sufficient importance and substance such that the grant of permission to appeal would be in the public interest. It was a fundamental feature of Mr Heading's case before the Deputy President that the use of force against Detainee B was justified, and could not constitute a valid reason for his dismissal, because he was acting in self-defence in response to the threat of imminent harm. This alleged threat had two manifestations: first, a purported sudden movement and change in demeanour on the part of Detainee B and, second, a explicit verbal threat to the effect that he would "smash his head in". The Deputy President, by way of close analysis of the CCTV footage, was able to reject the first aspect of this contention, in that he was unable to observe any visual manifestation of a threat of harm in Detainee B's body posture and body language. Mr Heading conceded before the Deputy President this was not visible in the CCTV footage. There is no arguable case of error in this respect.

[21] However, the position is different with respect to the alleged verbal threat. There was no audio on the CCTV, and that necessarily makes it difficult to discern, at any time during the incident, whether Detainee B is speaking at all let alone what he might be saying. However there was direct witness evidence concerning what was said during the incident given by Mr Heading and Mr T and, in addition, there was before the Commission a statement made by Detainee B. The Deputy President did not make any finding about whether he accepted any of this evidence or not; he simply found that it was "impossible to confirm" whether a threat had been made before Detainee B was "taken down". It may certainly be accepted that the CCTV footage cannot confirm what was said and when it was said, but that did not absolve the Deputy President of the responsibility of making factual findings on the basis of the other evidence before him. It would be reasonably arguable, we consider, that Mr Heading might be characterised as acting in self-defence when he "took down" Detainee B if in fact the alleged threat was made immediately prior to this such as to cause Mr Heading to believe he faced imminent harm if he did not act forthwith. That the CCTV footage did not confirm Mr Heading's case of self-defence was not a sufficient basis to reject that case since, by the same token, it could not rebut it either.

[22] It is of course not the case, as suggested in appeal ground 1, that the respondent had the onus of proving beyond reasonable doubt that Mr Heading did not act in self defence. The burden of persuasion (on the balance of probabilities) in this respect lay with Mr Heading. However, because the Deputy President did not consider and make findings about all of the evidence pertaining to Mr Heading's case of self-defence, there is the possibility that the decision manifests an injustice insofar as the Deputy President's finding of a valid reason for dismissal is concerned. We consider that it is in the public interest for permission to appeal to be granted so that we may review the evidence ourselves to determine whether Mr Heading's allegation of a verbal threat of imminent harm is capable of factually being sustained.

Appeal ground 1 - review of the evidence of the alleged verbal threat

[23] We will begin by setting out the two versions of events concerning the incident given by Mr Heading. First, the record of Mr Heading's interview with the investigator, Mr Alcock, was placed into evidence. Mr Heading said that he and Mr T intervened when Detainee B spat in the hatch of cell 1 and began kicking the door, and had refused to comply with a third direction to return to his cell. Mr Heading said that he had past experience in successfully moving Detainee B away from confrontations and calming him down, and thought that he could do this again. The interview then covered the events which followed:

"MR HEADING: ...So I've come over, directed him again to move away from the cell. He's going off at [Detainee D] and he's sworn at me. That's when I've put my hand up and said, "Look, mate, come on, I'm directing you to get back to your cell."

MR HEADING: So I'm moving him across. Obviously I'm in close proximity, so I'm obviously touching his chest, moving - ushering him backwards. We were having good progress, and then he sort of starts barking off me.

MR HEADING: Just says, "Get the fuck away from me," or something along those lines, or "I'll fucking smash you," or whatever.

MR HEADING: Yes, he did. Yes, he threatened me then. And even then, I still thought, as we're moving back, you can see me pointing to his cell, I could get him back into his cell.

MR HEADING: So it's at the point where I've directed him probably on the fifth time, and then we were about to stop on the sixth time, his whole demeanour changed again.

MR HEADING: So he sort of backed up, stopped against one of the cells, and that's where I've said in my report there was a slight movement towards me. Obviously in the footage I couldn't see that.

MR HEADING: So I don't know if that was his face, how he just sort of - he sort of just clicked into like a really aggressive manner.

MR HEADING: And that's when he said he's going to threaten to smash the shit out of me.

MR HEADING: So I had no time for anything at this point, because I was close.

MR HEADING: My safest place for myself, considering I was about to be assaulted -

MR ALCOCK: Did you believe - that's what you believed?

MR HEADING: Oh, 100 percent. He was just about to hit me.

MR HEADING: He was going to hit me. So obviously there's concrete floors in the management unit. If he gets a good punch on me, now, worst case scenario, I'm dead.

MR HEADING: I hit the floor. You know what I mean? So I got closer. I got rid of the initial threat, which was his punching.

MR HEADING: So I took him below the shoulders, above the elbows. Got as close as I could. Then I'm thinking headbutt, so I've taken him down over my side onto his back.

MR HEADING: At no time was anyone hurt during the incident. He threatened to smash me and get me again while he's on the ground."

[24] In respect of the proceedings before the Deputy President, Mr Heading did not file a witness statement prior to the commencement of the hearing, and consequently his evidence concerning the incident was entirely viva voce. In his evidence in chief, Mr Heading described the detainee as someone who "snaps" from time to time, but was not a "bad kid" and had not threatened him before. [5] However he also said that he had a history of violence in the AMC.[6]

[25] Mr Heading's evidence in chief concerning the incident with Detainee B was as follows:

"Cell 1 was occupied by who?---[Detainee D] so as I said to Mr [T] look, we're going to have to go out, get him away from the cell, we'll lock him in, we've already warned him if he goes over there he's going to be locked in. That's when we went out gave a - I guess my second direction, because I gave one several minutes before or five minutes.

What was your second direction? What did you say?---I told him I directing you to get away from the cell, I told you when you first came out if you went there you'd be locked in so I'm directing you to get into your cell.

What happened after that?---It's hard to remember the exact. He swore at me, he stayed at the cell, told me to eff off, I don't know if we can swear in here, I'm not sure, but he told me to eff off and - - -

Did he use that word eff off?---Yes, he did, yes, yes. So we moved our way over. I directed him again to get into his cell, you can see in the footage I've made my way over with Mr [T]. I sort of get in-between and I put my right hand up and I put it on his chest to guide him away from that cell 1. And then our planned response was really - the team response was we go out, we put him in his cell, no drama. [Detainee D] calms down, [Detainee B] locked away and that's fine. So as we're moving backwards in the management unit everything's going fine. He's starting to escalate a tiny bit. I'm directing him as we're moving.

How did he escalate or how did things escalate?---Just his voice. You could see he starts getting more - a little bit more aggressive in his voice. I didn't think it was much of an issue while we were moving because our planned response was going really well. So as we're moving back which you can see in the footage I'm pointing to cell 1, directing him again. Must have directed him six times at least to get into his cell, and then we come to a sudden stop and that's when he's threatened to smash my head in, and that's when I took - - -

What words did he use?---Words to the effect 'I'm going to smash your fucking head in' or something like that.

This is when he stopped?---Yes, this is when he stopped and you can see in his eyes, the camera-ing is all on the side, you can't see what I see and when he speaks, his last comments were just really elevated and really aggressive, and his eyes..."[7]

[26] Mr Heading went on to explain that he came into close proximity with Detainee B in order to escort him back to his cell in circumstances where he had refused to comply with directions to do so and wanted to go back to the cell of Detainee D.[8] After stating again that Detainee B threatened to smash his head in, Mr Heading then described what happened immediately after as follows:

"Then what happened after that?---So I'm that close then I've feared for my safety. I've got a prisoner that's highly aggressive and quite close and my initial thought is I have to get closer to protect myself. If I step back he's going to full swing at me in a full step, so my safest point from hereon is to get close, take hold of the initial threat which was him smashing my head in which I knew he was about to throw a punch. So I take hold of his arms, I stop that - - -

Can I just stop you there. How do you say that you knew that that was what he was going to do?---You could tell. You're in the job long enough, you see that many assaults, you know when someone's about to assault someone. I've seen it a thousand times and you could see his elevation of his voice and his eyes, everything just changed as soon as he stopped. It's just - it's hard to explain unless you're there and you're feeling the atmosphere, the tone of voice, the eyes, it's - - -

He stopped walking backwards and he threatened you?---Yes.

Then what happened?---I think I gave him another direction.

I'm directing you to go to your cell or force will be used.

I can't remember if he threatened me twice or was it once. It all happened really quick, so I know the very last threat was when I had to - I had to take action, so that's when I've taken - I took hold of him around the arms because he was - - -

I'll just stop you there. Why did you have to take action?---Because he was about to hit me.

He didn't say anything about that?---Yes, he said he's going to smash my effing head in.

So you took him around the shoulders did you say?---No, it was below the shoulders, roughly above the elbow, below the shoulders.

With one hand or both hands?---No, both hands. So like I said the initial threat is him give me the one punch straight to the head, so I've taken a hold of him around the arms and then we're taught whenever you take a hold of a prisoner you take them to the ground as fast as you can for the safety of the prisoner and yourself.

What was your intention in putting both your arms around his shoulders?---To stop the assault."[9]

[27] Mr Heading then described the manoeuvre by which he forced Detainee B to the ground, and gave the following evidence:

"So what was your intention in doing all of those action?---So it was to prevent the assault on myself. So take hold of the prisoner, take him to the ground. He landed on it - we landed sort of on the ground together, the prisoner on his back. He's obviously trying to fight, we - [Mr T] and myself rolled him onto stomach, we cuff him, he's threatening to get me on the outside and smash me and kill me and all this. We cuff him and response came."[10]

[28] Mr Heading was then taken by his legal representative through the CCTV footage. He referred to a point in the CCTV footage, while he was attempting to escort Detainee B back to his cell, which he said showed that Detainee B suddenly stopped and caused him to take two steps too many.[11] He said:

"I've taken - I've taken a step too many at least, yes. As he's stopped I've moved a couple more steps which I shouldn't have. So it's at this point where he's threatening to smash my head in and as you can see, Deputy President, I was too close.

So who stopped first you or him?---He stopped in his tracks there.

At the time he stopped what did he say?---I'm going to smash your effing head in and - yes.

What did that - what were you thinking at the time?---He was going to hit me, 100 per cent. Yes.

So what did you do?---I took hold of him around his arms, above his elbows, below his shoulders and took him over my left hip onto the ground."[12]

[29] As part of the investigation into the incident, a statement that was obtained from Detainee B dated 18 July 2018 was also placed into evidence. In his statement, Detainee B described how he became involved in a verbal argument involving threats with another detainee who was locked in cell 12. He described Mr Heading's intervention as follows:

"Officer Heading came out of the control room. He told me to get back and into my cell. I swore at him, told him to get fucked and that I'll smash him.

He told me get back to my cell and I refused. He told me this about five times and he said if you don't get back into your cell I'll have to use force. I refused again and he picked me up and put me on the ground.

When I landed on the ground I was on my back and I bear hugged him that that's when I said, 'I'll get you'. That is when I was cuffed and all the officers came in and put me into my cell."

[30] Detainee B went on to describe how he went on to smash a chair in his cell because he was in an aggressive state, that he later sought to apologise to Mr Heading after he had cooled down, and expressed the opinion that he thought Mr Heading had done nothing and that he had seen "other officers do worse things".

[31] Mr T described the incident four times: in an initial "Corrections Officer Report" prepared on the day of the incident, in a witness statement made for the purpose of the investigation on 14 August 2018, in his witness statement filed in support of Mr Heading's unfair dismissal remedy application, and in oral evidence before the Deputy President. Mr T's initial report of the day of the incident was recounted in the Investigation Report as follows:

"In his report, CO1[T] on 18 June 2018, Detainee [B] was having his allotted time out of his cell when he heard yelling coming from the common area. CO1 [T] wrote that he saw Detainee [B] at the door of Cell 1 and he was yelling at the detainee inside. At this point in time, CO1 [T] heard C01 Heading give multiple directions to Detainee [B] to move away from area.

CO1 [T] described how he and CO1 Heading attended the common area of the Management Unit and CO1 Heading physically guided Detainee [B] away from the cell door to the area in front of Cell 11 and Cell 12. CO1 [T] stated that at this point, Detainee Black became abusive towards both Correctional Officers. CO1 [T] further stated Detainee [B] became aggressive towards the Correctional Officers and he saw a movement by Detainee [B] towards the Correctional Officers at which point CO1 Heading has then restrained Detainee [B] and placed him on the ground.

CO1[T] stated Detainee [B] was non-compliant throughout this engagement and made threats against CO1 Heading."

[32] The Investigation Report also recounted the version of events given in Mr T's witness statement provided for the purpose of the investigation. From the point where Mr Heading and Mr T approached Detainee B to return him to his cell, the Investigation Report summarised Mr T's witness statement as follows:

"CO1 [T] stated that at this point in time, both he and CO1 Heading left the Management Unit Office with the intention of putting Detainee [B] back into his cell. CO1 Heading approached Detainee [B] and directed him again to move away from Cell 1 and to move back to his cell. CO1 Heading has placed his hands on Detainee [B]'s chest area and gently pushed him away from the door area of Cell 1. CO1 [T] stated this happened twice.

As a result of CO1 Heading's actions, Detainee [B] has walked backwards towards Cell 11 and 12, which are on the other side of the Management Unit from Cell 1. Whilst this happening, Detainee [B] has begun to threaten CO1 Heading by saying he was going to 'get CO1 Heading and his family'. CO1 [T] understood this comment to be a threat from Detainee [B] against CO1 Heading. During this process, CO1 Heading has again given Detainee [B] directions to return to his cell and CO1 Heading was using his hand to point the direction of Detainee [B]'s cell.

CO1 [T] stated that upon both CO1 Heading and Detainee [B] stopping, they were less than one arm's length away from each other with Detainee [B] being about one meter away from the back wall of the Management Unit. Detainee [B] has again threatened CO1 Heading by saying 'I'm going to smash you cunt', CO1 [T] stated at this point, he begun to move to the right side of CO1 Heading as he believed there was an immediate threat to CO1 Heading.

CO1 [T] stated that at this point, CO1 Heading has restrained Detainee [B]'s arms against his sides by using a hugging motion and taken him to the ground. CO1 Heading has positioned himself on top of Detainee [B] and begun to manoeuvre Detainee [B] onto his stomach so he could be restrained.

Whilst this was happening, CO1 [T] stated he called a 'Code Blue' over the radio which resulted In further Correctional Officers attending the Management Unit and providing assistance to control Detainee [B]. Once Detainee [B] was handcuffed, he was moved back into his cell and his handcuffs were removed."

[33] In his witness statement for the proceedings before the Deputy President, Mr T relevantly said:

"5. On 18 June 2018 I observed Adam Heading's dealings with the detainee involved in the subject altercation. Adam just wanted to get the detainee into his cell, given the detainees increasingly poor behaviour, and the observation of a number of other detainees in the Unit.

6. Heading gave the detainee appropriate directions and warnings at the time, then took appropriate action when there was no compliance, and a suggestion of retaliation. Adam took a clean and quick reaction. The detainee was not hurt, and he was placed back in his cell. He needed to be put in his cell given his unwillingness to follow Adams clear direction. There was a clear concern that increasing upset in the Unit could have occurred if the incident was not contained promptly."

[34] In his oral evidence in chief before the Deputy President, Mr T said:

"...Mr Heading was the lead and I put it that way, because he'd been dealing with the detainee through, so it's more consistent. We headed down to the stairs, off to the right, moved over to the cell. Mr Heading gave him another direction to move back away from the door which he didn't. There was yelling between the two detainees. Obviously, we're always aware of escalation with [Detainee D], being that it could be a fire or a self-harm or something worse. Mr Heading used his hands and gently moved him away. Obviously, a change is part of that focus. He was semi-compliant, probably until he got to cell 12, within a metre of about cell 12, where he stopped.

That's on the other side of the common area?---Yes, from cell one. Basically, almost where that footage is showing, if I can just refer to that.

You say he was compliant, in what way?---He wasn't - he was moving back, he was moving back. There was no indication at that stage that there was going to be any issues apart from - yes, he was moving back to his cell. He stopped at that point and that's - it was no, I'm not doing it; I'm not doing it.

[Detainee B] stopped, and he said he's - - -?---Yes, yes. No, you know - and that's - - -

He said what - did he say something?---He started off, no I'm not going to the cell. Then he turned around and I'm quoting 'I'm going to smash you cunt' was the words he used.

Who was he talking to then?---To Mr Heading, because I was standing off to 45 at Mr Heading's right. Pretty much when he said that situation, I was getting concerned with the way he was acting. I moved off to Mr Heading's 45 to [Detainee B]'s left hand side and just following that, there was more threats to families et cetera, et cetera.

Towards Mr Heading, not you?---Yes, no, well Mr Heading was taking the lead as I said, you know, like it's always one person who usually, I mean, tries to move.

Takes the lead?---Yes, from memory and it is a little bit faint, is I was giving some directions to move to your cell, move to your cell. But Mr Heading was doing really well with him, you know, there wasn't - until that stage and that's where I moved out as protection to Mr Heading's right so that if he was to make a move that we would have more control in that situation.

What happened?---In that situation, at that stage there was an imminent threat. Mr Heading grabbed [Detainee B] with a hugging motion and tipped him to [Detainee B]'s right, Mr Heading's left."[13]

[35] Mr T later gave the following evidence:

"So what was the imminent risk that you mentioned a moment ago?---It was following the call from [Detainee B] that he was going to - I'm going to smash you, pointing at Mr Heading. I mean he's threatening - we've seen lead up to it; we thought we were de-escalating it. It was re-escalating again, there was a threat towards the officer in person and Mr Heading handled the situation from my point, quickly, effectively and a lot more neat than I would have...".[14]

[36] We will begin by reviewing the statement made by Detainee B for the purpose of the respondent's investigation. We consider, despite the fact that Detainee B did not give oral evidence before the Deputy President and thus could not be tested through cross-examination, that his statement has probative value and may be assigned considerable weight. The statement was made soon after the incident, Detainee B makes admissions about his own conduct, and he expresses sympathy for the position of Mr Heading despite Mr Heading's use of force against him. There are three salient aspects of Detainee B's account. First, Detainee B admits that he threatened to "smash" Mr Heading at a time prior to him being "taken down". This is sufficient, in our view, to confirm that the threat was made, and it was made before Detainee B was taken to the floor. Second, Detainee B does not place the making of the threat immediately before the use of force; rather, on his account, the threat was made after Mr Heading emerged from the control room and communicated the first direction for Detainee B to return to his cell. Third, Detainee B said that what immediately preceded the use of force was that, following him refusing to comply with further directions a number of times, Mr Heading said that he would have to use force if he did not go back to his cell. It was, on Detainee B's account, his further refusal to comply with this direction that was immediately followed by the use of force.

[37] Mr Heading took us to Detainee B's statement in his oral appeal submission in support of the proposition that he was threatened by Detainee B before the use of force. However, on proper analysis, the statement is destructive of Mr Heading's case. According to the statement, the use of force did not immediately follow the utterance of the threat, and Mr Heading did not treat it as indicative of potential imminent harm requiring him to defend himself. Rather, what followed was that Mr Heading threatened to use force against Detainee B if he continued to refuse to return to his cell and, when Detainee B still did not comply, Mr Heading carried out his threat. This does not demonstrate self-defence on the part of Mr Heading. To the contrary, it suggests that Mr Heading's use of force against Detainee B was premeditated and was intentionally responsive to Detainee B's lack of compliance.

[38] We now turn to Mr T's various versions of events. In his first version recorded in his Corrections Officer Report on the day of the incident and recounted in the Investigation Report, which is closest in time to the incident, Mr T does not state that Detainee B verbally threatened Mr Heading immediately before the use of force, nor does he suggest that the use of force was responsive to any verbal threat. Mr T refers to threats being made throughout the "engagement", but he does not specify at what point these threats were made. On this first version, the use of force followed Detainee B becoming "aggressive" and making a "movement". The nature of the aggression and movement are not identified. We do not regard this initial version on the part of Mr T as demonstrative of self defence on the part of Mr Heading. This is significant, because this version was virtually contemporaneous with the incident.

[39] In Mr T's second version, given in his witness statement for the investigation, he gives a great deal of detail not included in the first version, and includes an alleged threat made by Detainee B that he will "get CO1 Heading and his family" that is not mentioned in Mr T's earlier report and is not mentioned by Mr Heading at any stage. He goes on to describe a further threat - "I'm going to smash you cunt" - being made when Detainee B stops, which causes Mr T to believe there is an imminent threat and which is immediately followed by Mr Heading's use of force. It may be accepted that this account is arguably consistent with Mr Heading acting in self-defence.

[40] The third version, in Mr T's witness statement for the purpose of the proceedings before the Deputy President, is by contrast bereft of detail and does not identify any specific threats being made. In this version, the use of force is described as occurring in an appropriate way "when there was no compliance, and a suggestion of retaliation". Importantly, this suggests that there was a causal connection between Detainee B's failure to comply with the directions to return to his cell and the use of force, and that comes closer to Detainee B's description of what occurred. It does not indicate that Mr Heading acted in self defence.

[41] Mr T's fourth version, in his oral evidence before the Deputy President, reiterates the second version in that Mr T said that the use of force was immediately preceded by the threat "I'm going to smash you cunt".[15] However Mr T added a new detail, namely that Detainee B pointed to Mr Heading when he said this.[16] The CCTV footage shows that this did not happen.

[42] Our conclusion concerning Mr T's evidence is that it is too inconsistent to be reliable, and his accounts of what occurred seem to have evolved over time. We do not consider that his evidence could properly found the conclusion that Mr Heading was acting in self-defence when he "took down" Detainee B.

[43] Finally we turn to Mr Heading's recountings of the incident. In his interview for the purpose of the investigation, Mr Heading said that he considered that there was an imminent threat to his safety when Detainee B stopped, made a slight movement towards him (which he conceded could not be seen in the CCTV footage), "clicked into like a really aggressive manner" and threatened to "smash the shit out of me". This version, if accepted, would permit a finding that Mr Heading acted in self-defence. In his oral evidence before the Deputy President, Mr Heading initially repeated this version of events. However, while still in examination in chief, he added a significant new detail, in that he said, when Detainee stopped and threatened to "smash" him, he did not immediately use force but made a further direction. This direction was: "I'm directing you to go to your cell or force will be used". It is of critical importance that his evidence concerning this direction - which does not appear to have been revealed to the investigation - is consistent with what Detainee B said in his 18 July 2018 report, namely that Mr Heading said "...if you don't get back into your cell I'll have to use force..", and it was Detainee B's further refusal which immediately preceded the use of force.

[44] Detainee B's version is also consistent with what is shown in the CCTV footage. This shows Detainee B being walked backwards in the direction of his cell by Mr Heading, when Detainee B suddenly stops. After Detainee B stops, it is visible that Mr Heading is speaking and, as he does so, he is pointing to Detainee B's cell. It can readily be inferred from the vision alone that Mr Heading is directing Detainee B to return to his cell and, we consider, this is likely to be the direction that both Detainee B and Mr Heading described to the effect that Detainee B was to return to his cell or force would be used. There is no dispute that Detainee B indicated a refusal to comply, although it is not possible to visually identify this on the CCTV. But we agree with the Deputy President that, immediately before he uses force, Mr Heading can be seen to drop his arms with his palms outwards and slightly tilt his head as if to indicate "Ok, if that's the way it is". This is consistent with Detainee B having refused to comply with Mr Heading's last direction.

[45] Accordingly, we do not consider that the witness evidence and other evidentiary material supports the proposition that Mr Heading acted under the belief that he was facing an threat of imminent physical harm and acted in self-defence when he used force against Detainee B. The evidence, taken in conjunction with the CCTV footage, supports the conclusion that although Detainee B did threaten to "smash" Mr Heading at some point after Mr Heading and Mr T first emerged from the control room and directed him to return to his cell, this was not the precipitating factor for the use of force. Rather, what happened was that:

• Detainee B walked backwards when confronted by Mr Heading, but then stopped;

• Mr Heading told him that unless he returned to his cell, he would use force;

• Detainee B indicated a refusal to comply; and

• Mr Heading used force consistent with his preceding threat to do so.

[46] This series of events could not constitute self-defence on any view. Mr Heading's use of force in the circumstances described was not authorised by s 138 of the CM Act. Therefore we consider, on a full review of the evidence, that the Deputy President's conclusion that there was a valid reason for the dismissal was correct. Appeal ground 1 is therefore rejected.

[47] The remaining appeal grounds may be dealt with shortly. In relation to appeal ground 2, the Deputy President did not find that Mr Peach looked in part at Mr Heading's personnel file; he rather merely noted in paragraph [29] of the decision that Mr Peach had given evidence to that effect. In relation to appeal ground 3, we do not accept that appealable error is demonstrated by the Deputy President not searching for evidence to support Mr Heading's case which Mr Heading himself had failed to adduce. As to appeal ground 4, the Deputy President again did not find that the incident was not an unusual one at the AMC, but only noted Mr Peach's evidence to that effect in paragraph [29] of the decision. Appeal ground 5 is baseless: the Deputy President did not "give an example" of where the use of force is justified under s 139 of the CM Act but rather simply set out the text of s 139 of the CM Act, which contains the example referred to, in paragraph [42] of the decision. In any event, the proposition that Mr Heading was moving Detainee B because he was prompting Detainee D to self harm does not by itself serve to bring his use of force within the scope of authorisation under s 138 of the CM Act. The remaining appeal grounds are therefore also rejected.

[48] Since we have rejected all of the appeal grounds, the appeal must be dismissed. We order as follows:

[1] [2020] FWC 1863

[5] Transcript, 18 November 2019, PN 169

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