CGEA Transport Ltd t/as Southtrans v Transport Workers' Union of Australia

LEGISLATION CITED: Industrial Relations Act 1996 Children (Detention Centres) Regulation 2005

CGEA Transport Ltd t/as Southtrans v Transport Workers' Union of Australia [2001] NSWIRComm 287 Corbeski v Bluescope Steel (AIS) Pty Limited [2006] NSWIRComm 1170 CASES CITED: HREA o/b Robert Drinan v Hunter Area Health Service [2002] NSWIRComm 270 Woods & Hunter Area Health Service [1999] NSWIRComm 102 Jupiter General Insurance Company Limited v. Andeshir Bomanji Shroff (1937) 3 All ER 67

HEARING DATES: 14 July 2008; 15 July 2008; 16 July 2008

LEGAL REPRESENTATIVES: RESPONDENT Counsel Ms T Anderson

• 43 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES (ON BEHALF OF CHRISTOPHER ARTHUR SWEET) AND DEPARTMENT OF JUVENILE JUSTICE

Application for relief from alleged unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 Mr Christopher Arthur Sweet ("the Applicant") was employed by the New South Wales Department of Juvenile Justice (DJJ) from September 1999 to the termination of his employment on 29 February 2008. 2 Mr Sweet was engaged on a series of casual and temporary contracts until his appointment to a full-time position on 18 September 2002 as a youth officer at the Acmena Juvenile Justice Centre ("Acmena") in Grafton, New South Wales. 3 Mr Sweet's employment was terminated with effect from 29 February 2008 as a result of findings by an inquiry, initiated by the DJJ, arising out of an incident on 5 May 2007. 4 The inquiry concluded that Mr Sweet had used excessive force in breach of clause 50 of the Children (Detention Centres) Regulation 2005 on a detainee, identified as "RS", when restraining him from attacking another detainee, identified as BB. 5 It is further contended that Mr Sweet used an inappropriate and unauthorised method in restraining RS; and that, in the course of inquiry into the incident, he expressed an attitude inconsistent with the role of a youth officer. 6 The DJJ asserts that Mr Sweet's conduct during the course of investigation into this matter revealed attitudes and beliefs inconsistent with the role of a youth officer, who is required to demonstrate that violence is not the preferred method of issue resolution. 7 Application for relief from unfair dismissal was filed by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA) on behalf of Mr Sweet. 8 The issues were unable to be resolved in conciliation and directions were issued to bring the matter to hearing on 14, 15 and 16 July 2008. 9 Mr Papas, appearing on behalf of the PSA, brought evidence from Mr Sweet who was subject to cross examination. Mr Papas also brought evidence from Mr Paul Conway, who has been employed by the DJJ for some 20 years and is currently engaged as a Protective Tactics Instructor, delivering training to youth workers Statewide in responding to critical situations. Mr Conway was also subject to cross examination. 10 Mr Papas further relied on statements by:

Mr Raymond Smith (Ex 22) 11 Ms Anderson had no objection to this evidence and did not require any for cross examination on the basis that Mr Papas conceded that Mr Newman was also subject to a finding that he had used excessive force and was demoted; and Mr Martin was subject to a reprimand for assaulting a detainee. 12 All are employees of the DJJ, with the exception of Mr Newman who is a former employee, and Mr Stapleton who provided a character reference for Mr Sweet on the basis of close association as a friend and neighbour. 13 Mr Newman was involved in the incident leading to Mr Sweet's dismissal. He is not subject to any criticism of his conduct therein. Mr Newman's subsequent resignation is not, on the evidence or argument put in this matter, in any way related to the termination of Mr Sweet's employment. 14 Ms Anderson of Counsel brought evidence from Ms Nicole Christoph (Ex 14) employed by the DJJ as an Employment Relations Officer. Ms Christoph was not required for cross examination. 15 Issues falling for determination are: · Did Mr Sweet use excessive force? · Did Mr Sweet use an unauthorised hold? · Does Mr Sweet hold attitudes and beliefs inconsistent with the role of a youth officer? · Was the termination of Mr Sweet's employment harsh, unreasonable or unjust; and, if so, what is the appropriate remedy? THE INVESTIGATOR'S REPORT

16 The report to the DJJ by the investigator is found in Ms Christoph's statement (Ex 14). 17 The investigator applied the civil standard of proof in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336, noting that: "In that case (Briginshaw), the High Court made clear that the seriousness of the allegation, and the gravity of the consequences flowing from a finding, must affect the degree to which the investigator is satisfied as to whether the allegations have been established; the more serious the allegation or consequence, the closer the standard must come to the criminal standard of "beyond reasonable doubt".

18 The investigator was asked to provide an opinion on whether Mr Sweet had assaulted RS; whether excessive force was used; and whether Mr Sweet used an inappropriate and unauthorised method of restraint on RS. 19 The investigator reviewed closed circuit television (CCTV) images of the event and interviewed Mr Sweet, RS, Youth Officer (YO) Rhonda Toms and YO Deborah Adams. The investigator was unable to interview YO Newman who, by the time of the investigation, was absent from work on medical grounds. The investigator was advised that medical advice precluded Mr Newman from availability for interview. The investigator was unable to interview detainee BB, who had been released from custody. Detainee WB, who was present at the incident, was, by the time of the investigation, at another detention center, however, informed the investigator that he had no recollection of the event. 20 Neither YO Toms nor YO Adams were involved in or observed the event. Information available from YO Toms was that at about 9.00 pm on the evening of the event Mr Sweet asked her to check on RS as he was concerned the he may have "taken RS high" and hurt him. This request was made to YO Toms by Mr Sweet on the basis that she had a good relationship with RS. 21 Ms Toms filed a report on the matter on 21 June 2007 (Ex 14, p63). Ms Toms informed the investigator that she examined RS and could see no marks on his neck or upper body from physical contact. RS insisted that he was "OK" and declined to make a complaint against Mr Sweet.

22 The following morning YO Toms discussed the matter with YO Adams with whom she was friendly. YO Adams made an official report of this conversation on 7 June 2007 (Ex 14, tab 9) in which she put Ms Toms told her that Mr Sweet came to her "with a crazed look on his face" and asked her to check on RS, stating: "I grabbed him by the throat and took him to the ground". 23 Ms Adams' report states that Ms Toms could not recall the exact date of this event when talking to her but did inform her that she attended upon RS, informing him of his right to feel safe whilst in detention and his ability to put in a complaint about mistreatment by Mr Sweet. Conclusions of the Investigator

24 The investigator concluded that the use of force was required, noting that: "Clause 50 of the Regulation relevantly provides that force may be used by a staff member "to protect the officer or other persons from attack or harm" (cl 50(1)(b), or to "prevent or quell a riot or other disturbance" (cl 50(1)(h). Fairly clearly, within either or both of these provisions, one of the prerequisites for use of force had arisen. 25 The investigator then concluded that the force used was excessive. In arriving at this conclusion the investigator noted that the attitude and demeanour of other detainees and the presence of youth officers in the area removed any threat of the altercation between RS and BB escalating into a more general insurrection. 26 The investigator concluded from the CCTV evidence that Mr Sweet acted with a speed and vigour which exceeded the needs of the situation. The investigator stated: "In short, I think that A/UC Sweet was well within the rights to use force, but that he overdid it; and that accordingly the force he used was excessive, in breach of cl 50 of the Regulation. "

27 In concluding that Mr Sweet did not assault RS the investigator accepted Mr Sweet's explanation that he was motivated to act quickly and decisively to protect RS from more serious harm. 28 The investigator said: "The first, and most relevant, was that he was - to paraphrase it somewhat more directly than A/UC Sweet himself did - acting in the best interests of Detainee RS. From what he knew of RS and his history, he was apprehensive that RS himself might become the victim of a more serious assault if he (Sweet) did not move swiftly to take him out of harm's way. The fact that Sweet did this in a way which apparently caused RS some minor hurt (although not injury of any kind) does not necessarily mean that Sweet may not have been acting for the reasons which he claimed,"

and later: "I can make no criticism of the fact that, having heard a disturbance, A/UC Sweet ran toward it: he might fairly have been criticised had he not done so. I also accept his evidence that, at least initially, he did not know that any staff member was in the vicinity (although, having arrived there, he could scarcely have missed the imposing presence of YO Newman). I think that, in doing what he did, A/UC Sweet acted without the skill and commonsense which might have been expected of him as an experienced staff member; but I do not think there is any basis for concluding that he acted out of anger or any other inappropriate motivation toward Detainee RS, but instead out of a motivation to avoid the situation getting further out of hand.

While the Department's policies in relation to detainees do not sanction differential treatment of detainees based on the perceptions held of them by staff members, I would accept that it is proper for a staff member, in assessing the way in which to handle the situation involving a particular detainee, to take into account knowledge of the detainee's patterns of behaviour. What A/UC Sweet said to me of Detainee RS was that he had a short fuse (my term, not his), and that accordingly he was at risk of retaliation by other detainees. Based on my assessment of Detainee RS's files, this was probably not an unfair assessment." 29 The investigator found that Mr Sweet was genuine in his concern for RS when he asked YO Toms to check on him, concluding that: "My overall conclusion is, although A/UC Sweet used excessive force, I do not think that he acted with the state of mind necessary for me to be able to find that he assaulted Detainee RS. … I think this matter involves misjudgement by A/UC Sweet rather than deliberate hostile intent, so I believe that a reporting under Category 1 is appropriate. " 30 In examining whether Mr Sweet applied an inappropriate and unauthorised hold, the investigator noted that there is no specific restriction in the Use of Force and Instruments of Restraint Guidelines ("Use of Force Guidelines") or other documents to prohibit restraint of a detainee by wrapping an arm around the detainee's neck and throat. 31 The investigator noted that there is a strong emphasis in the relevant documentation on avoiding harm to detainees. 32 By reference to the DJJ training manual and the comments of Mr Sweet that he was not happy with the way he had taken RS down, the investigator concluded that Mr Sweet had used an unauthorised and inappropriate method of restraint. THE EVIDENCE OF MR SWEET

33 Mr Sweet has a range of qualifications and experience; he is a qualified carpenter and joiner and has worked in that capacity in the building and construction industry and for NSW State Rail Authority for 10 years, prior to being self-employed growing produce on his property and as a casual personal care assistant in aged care. 34 Prior to his employment with the DJJ Mr Sweet gained Certificate III Assistant in Nursing, Certificate IV in Working With Older People and Certificate IV in Youth Work from Grafton TAFE. 35 Mr Sweet has been engaged in various roles at Acmena, commencing as a Vocational Instructor, in which capacity he provided a horticultural program during the summer of 1999/2000. 36 Mr Sweet deposed that during the course of this program he supervised up to eight detainees on any day, most of whom were disruptive individuals not eligible to attend the school due to misbehaviour. This program produced a large vegetable garden and a variety of produce, herbs and cut flowers for Acmena. 37 During 2003 Mr Sweet worked as a Youth Officer Admissions which required specialised functions and skills for processing movement of detainees into and out of Acmena, file management and security measures. 38 From late 2004 Mr Sweet worked as a Youth Officer Programs, introducing a new structure for school holiday operations, which he put significantly reduced negative, peer interactions and improved harmony. These measures continue to be applied. 39 Mr Sweet acted into the position of Unit Coordinator from 2003 and, at the time of the incident giving rise to these proceedings, was at the top of the eligibility list to act as Unit Coordinator at Acmena. 40 Mr Sweet described the Unit Coordinator's role as "a position of trust" overseeing a team of three youth officers and up to 15 detainees. 41 Mr Sweet deposed that detainees have serious emotional and psychological problems; a history of and tendency to violence, which lead to a need for physical restraint. Mr Sweet detailed a range of injuries inflicted by detainees on himself and other youth officers in the course of effecting physical restraint. 42 Mr Sweet described his approach to the use of force at paras 19 and 20 of his statement of evidence (Ex 2) in the following terms: 19 . I have been involved in dozens of Use of Force situations which involve single person restraints, two or more person restraints and room extractions. During some of these incidents I was directed to use implements of restraint such as hand cuffs, riot shields, helmets and other personal protective clothing. I do not enjoy having to use force however it is a dangerous workplace where detainees can suddenly become violent without warning to themselves or others. I prefer the passive interventions of negotiation however this is not always possible.

20. There are many examples of where I have had to use force which are documented at Acmena and show that I have complied with DJJ policies and Occupational Health & Safety procedures. I have always supported fellow officers and detainees when they have been threatened or attacked. I have prevented a number of detainee on staff assaults as well as detainee on detainee assaults through restraint or negotiation interventions. I have never injured or hurt a detainee when applying a restraint. This is a matter of record. 43 Mr Sweet deposed that on 5 May 2007 he was the Acting Unit Co-ordinator on the afternoon shift in the Jacaranda Unit of Acmena. 44 Mr Sweet deposed that he was in conversation with a fellow youth officer, Amanda Heycock, supervising the lounge area when they became aware of a disturbance in the north hall. 45 Mr Sweet's evidence is (Ex 2, p7):

"33. I recall intervening by placing myself in front of detainee RS and begin attempting to calm him down by adopting the DJJ protective stance. This involves you placing your hands in front of you at chest height with open hands palms facing out. Due to the lack of room where we were placed, I was almost face to face with detainee RS and my intention was to calm him down and attempt to quickly diffuse the situation.

34. I recall that I said words to the effect of " Chill out , settle down, mate".

35. The next thing I could recall was that suddenly we had lost our balance and were falling to the ground. During this moment I remember trying to hold onto detainee RS to control his descent to avoid injury.

36. This use of force and restraint was over in few seconds. I don't believe that I had the opportunity to stop nor take any time to assess the situation as this was split second reflex to what had become a potentially dangerous situation .

46 Mr Sweet deposed that he did not have an opportunity to view the CCTV footage of the event until some three months later, which he put helped him recall further details of the event. 47 Mr Sweet put that he had no intention of using force, which is supported by his conciliatory body language in the CCTV images. 48 Mr Sweet described the contact with RS (Ex 2, p8): 43. The CCTV clearly shows detainee RS strike me across my chest area sweeping my hands and arms to the side. It was at this point that I have been physically assaulted. I was caught by surprise by the speed and force of the strike and you can see my upper body being forced to my left and I was pushed off balance.

44. The CCTV clearly shows that after I was struck by detainee RS he then attempts to push past me. It is at this moment that my reflex action was to put my right arm out to attempt to block his forward motion. I did not intentionally seek to restrain him and take him to the ground,

45. However on a frame by frame analysis of the CCTV footage I believe it demonstrates that due to his forward momentum he has pushed his chin into the bicep of my right arm. I have then attempted to utilise a single person bear hug by trying to clasp my hands together behind the back of detainee RS. Unfortunately this was not perfectly successful. As he pushes into me I resist and use force to push him back. Somehow my reactions result in detainee RS and myself losing balance and cause us to fall towards the ground.

46. The CCTV clearly shows that I cushioned the impact of the fall by my right arm behind the back of detainee RS and taking the impact of the descent on my elbow. I also bent my knees to assist with breaking our fall to the ground. 47. The CCTV clearly shows me trying to lower detainee RS to the floor rather than letting him free fall and his feet do not leave the ground. It also shows him on the carpet wearing his socks. He had a habit of wearing his socks with his thongs in the Unit and had kicked his thongs off before going into fight. I believe that his inability to gain any traction due to this contributed significantly to us both failing to the ground. His foot slid out from underneath him and he lost balance.

48. The CCTV footage clearly shows that once on the ground I am still negotiating with detainee RS and I pat him on the chest as a sign of good will. I can confidently state that had I used excessive force on detainee RS he would have been aggressively uncompliant and would have continued struggling whilst on the ground.

49. The CCTV clearly shows that after I have assisted detainee RS to his feet and maintained our hold on him he has once again directed his aggression towards detainee BB. I can confidently state that had I used excessive force on detainee RS he would have been directing his aggression at me.

50. The CCTV clearly shows that detainee RS would not settle down and continued his aggression towards detainee BB. A second use of force by staff, including myself was required to move him to his cabin. 49 In commenting on the investigation Mr Sweet queried why the investigator did not interview Ms Heycock or other DJJ staff present in the north hall at the time of the event. 50 Mr Sweet deposes that his last staff appraisal criticised him for being too easy going with detainees, suggesting he should be more authoritarian. Mr Sweet disagreed with the assessment, putting that it is a fine line where a youth officer is required to be a mentor, a positive role model, and a disciplinarian, which he believes he managed to achieve. 51 Mr Sweet's evidence is that he had been reprimanded in respect to another incident following two allegations and two investigations which proved the first allegation false, leading to a revised allegation and a second investigation. In respect to the second investigation Mr Sweet was advised by the Director General of the DJJ that: "recognising your long service and the circumstances of the day, I consider that no harsher penalty than a reprimand be imposed". 52 Mr Sweet deposes that in the lead up to the RS event detainees in the unit had been unsettled and there had been some incidents, including a fight between two individuals. Mr Sweet put that detainees had divided themselves into two groups, identified as those from the "West" (Central NSW) and the "Coast". 53 Mr Sweet testified that RS had fought with detainees from the Coast group and had attracted some animosity from two particular coastal lads with histories of violent offences. 54 When given an opportunity to view the CCTV images with the investigator, Mr Sweet stated that he was not happy with the restraint and takedown, affirming his view that it was not an excessive use of force and that his actions were reasonable and necessary under the circumstances. 55 Mr Sweet continued to work in the Jacaranda Unit, at times as Acting Unit Co-ordinator, from the time of the incident to the start of the investigation when he was transferred to the Clarence Unit. 56 During this time Mr Sweet continued to work with RS in the Jacaranda Unit and subsequently when RS was also transferred to the Clarence Unit. Mr Sweet deposes that he maintained a good relationship with RS. 57 Mr Sweet deposes that he had been unsuccessful in seeking alternative employment and had not applied for social security payments; and had not received a separation certificate despite requesting the DJJ provide one. 58 At the time of writing his statement Mr Sweet had qualified for work as a taxi driver and was to do his first casual shift on 7 June 2008.

59 Mr Paul Conway provided two statements of evidence (Ex 12 and Ex 13). 60 Mr Conway has been employed by the DJJ for some 20 years; first as a youth officer at Mount Penang Juvenile Justice Centre, and then at Frank Baxter Juvenile Justice Centre. 61 From 2002 Mr Conway commenced as a Unit Co-ordinator of the Vocation Training Unit. He is also required to work as an Operation Unit Co-ordinator at the Frank Baxter Center from time to time. 62 Mr Conway holds a Certificate IV in Youth Work issued by the DJJ; and is a Protective Tactics Instructor for the DJJ. Mr Conway conducts training for youth officers employed by the DJJ throughout the State. 63 Mr Conway deposed that he may have encountered Mr Sweet in the course of delivering training to some 400 officers since 2002, but has no recollection of him. 64 Mr Conway deposed that the initial training is over four days and that all officers are required to attend a one day refresher course each year. 65 Mr Papas sought to bring Mr Conway as an expert witness. Ms Anderson objected on the basis that there is not a recognised field of discipline or profession in which Mr Conway could be accredited as an expert. Ms Anderson did not object to Mr Conway providing an opinion (TR, p51, 15/7/08): "…I'm not going to object to Mr Conway expressing an opinion, because for example, our investigator has expressed an opinion and obviously the Director-General has come to an opinion or the then Director-General has come to an opinion. So I'm not going to object to Mr Conway giving evidence as to what he has been required to do in terms of his duties with the Department …. What I would be submitted to your Honour is at the end of the day the investigator's opinion is really irrelevant to your Honour's finding, as is the Director-General's, as is any other witness, because the question of whether excessive force has been used is a decision that you will make not based upon the opinion of anyone else, but upon your own determination of reviewing the evidentiary facts before you." 66 The opinion expressed by Mr Conway (Ex12, para 14) is: "Based on my training and experience it is my considered opinion that during this incident YO Sweet did not appear to use excessive force. The restraint used was determined by his position in relation to the detainee RS at the time and appears to be both necessary and reasonable under the circumstances." 67 Mr Conway deposed that: · He had not discussed the matter with Mr Sweet. · When he was first asked to view the CCTV images of the event involving Mr Sweet he was not made aware that he was being asked to do so for the purpose of these proceedings, nor was he aware of the report by the investigator, Mr Baldwin. · In preparation of his second statement (Ex 13) Mr Conway was provided with Mr Baldwin's report and was aware that the statements were for the purpose of these proceedings. 68 Mr Conway's second statement takes issue with the report of the investigator, Mr Baldwin, and offers his observations of the CCTV images. Mr Conway deposes that (Ex 13, p2): · A/UC Sweet can be seen to assist detainee RS to his feet whose focus immediately comes upon the detainee being shielded by the other YO. · Detainee RS is once again restrained and removed to his cabin.

It is my experience that if A/UC Sweet had deliberately thrown detainee RS to the ground and hurt him then the he would have turned his aggression towards A/UC Sweet. instead of the other detainee .

69 Mr Conway takes issue with the investigator's conclusion that the situation was one without potential to escalate, putting that (Ex13, p3): There are numerous variables that a YO must take into account in this situation where there is the potential for further violence to occur such as; alliances between detainees, the mood of the unit, the fact that two other detainees are standing on a table at the vicinity with the unknown threat that they may join in from a superior vantage point and finally the fact that CCTV footage is not a complete record as there is no audio therefore one is not able to hear whether or not the other detainees in the immediate area or down the hall were being incited by the combatants or making threats. 70 Mr Conway deposes that the DJJ training manual is a guideline and does not extend to every possible scenario a youth officer may encounter when required to use force to restrain a detainee. Mr Conway's evidence is that the restraint used by Mr Sweet was justified in the circumstances and accordingly was not prohibited by the Use of Force Guidelines. 71 Mr Conway takes issue with the conclusion of the investigator that "it is abundantly clear from the CCTV that A/UC deliberately threw RS to the ground". 72 Mr Conway observes that (Ex 13, p3): · It is noted at the time Detainee RS was wearing socks on carpet. This may have attributed to him losing his footing and or balance. · A/UC Sweet can be observed to attempt to break the fall of detainee RS by the way he controlled their descent. · A/UC Sweet took the brunt of the impact on his elbow.. The Evidence of RS

73 At the time of giving evidence RS was 16 years of age. He travelled from the Northern Tablelands area of New South Wales with a family member to give evidence. 74 RS confirmed that he was truthful in his response to the investigator's enquiries. The record of interview of RS by the investigator is included in exhibit 14. 75 This record of interview was provided to RS by Mr Papas and he was required to view the CCTV vision of the event which he deposed he had not previously seen. 76 The investigator interviewed RS on 30 July 2007. The investigator was informed by RS that BB had started the argument that had developed into a fight. The investigator was informed by RS that Mr Sweet just came up behind him and hit him around the neck, taking him to the ground. 77 In the course of this interview RS was concerned that he had been confined and BB had not. 78 In cross examination RS confirmed that he was playing cards with BB and others at the time and that BB had gotten on his nerves that day so he told BB to get up and fight. 79 RS confirmed that, as he stood up to fight RS, he kicked his thongs off and was in socks on the carpeted floor. In response to Ms Anderson RS could give no particular explanation for removing his thongs putting that it was just a habit. 80 RS confirmed that he resisted Mr Sweet's restraint to have a go at BB but could not recall all of the detail of the event, which is quite unremarkable having regard to the intensity of the situation for RS during the event and the passage of time since 5 May 2007. 81 RS did recall having a sore neck but was more concerned that he was put in segregation and not BB. RS could recall youth officers checking on him in segregation but not why they were. 82 It is appropriate to note at this point that the investigator records that BB was sanctioned for his part in the event by loss of privileges and that this can be considered a more severe sanction than a brief period of segregation. The investigation further noted that it was more than likely that RS was not aware of this, or may have confused the loss of privileges to BB arising from their fight with the demerit point system applied at the Centre. 83 In cross examination Mr Papas posed a question to RS concerning socks on carpet to which RS volunteered his socks were slippery (TR 15.7.08, p5 at 28-32). SUBMISSIONS FOR THE APPLICANT

84 Mr Papas opened his submission by reference to Briginshaw, which he put is authority that the burden of proof lies with the DJJ which must establish to the civil standard of comfortable satisfaction. Mr Papas noted that in arriving at a comfortable satisfaction the Commission will not have regard to inexact proof or indirect testimony. 85 In Briginshaw Dixon J said [1938] 60 CLR at 362: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences." 86 Mr Papas also referred to Woods v Hunter Area Health Service [1999] NSWIRComm 102 and HREA o/b Robert Drinan v Hunter Area Health Service [2002] NSWIRComm 270 to support his submission that the termination of Mr Sweet's employment was harsh, unreasonable and unjust in all of the circumstances. 87 Mr Papas submitted that the evidence supports the finding that Mr Sweet had no intention of, and did not deliberately set out to use excessive force or an unauthorised restraint. 88 Mr Papas submitted that Mr Sweet intervened to prevent a disturbance, as authorised by s 50(1)(h) of the Children (Detention Centres) Regulation 2005 ("the Regulation"), by assisting in preventing two detainees from fighting. 89 Mr Papas put that the force used was no more than reasonably necessary, but inadvertently led to Mr Sweet and the detainee falling to the floor as a result of the combined force of Mr Sweet's efforts to restrain the detainee and the significant force exerted by the detainee in resisting restraint. Mr Papas submitted that the fact that the detainee was wearing socks on the carpeted surface created a slippery foothold, contributing to the fall. 90 Mr Papas submitted that the extent of force used is supported by s 50 of the Regulation, which says:

(1) An 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,

(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) An 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, an 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.

91 Mr Papas submitted that the evidence, in particular the CCTV images, supports the conclusion that Mr Sweet held a reasonable concern that the good working order and safety of staff and detainees were at risk by the actions of the detainee, having regard to the detainee's record of violence, supported by reference to his "D file" (Ex 10); and that there was reasonable apprehension that, if not restrained quickly, the situation held a potential to escalate. 92 Mr Papas noted that the Use of Force Guidelines (Ex 5) and the Trainers Resource Package for Protective Tactics (Ex 6) were suspended and replaced by a DJJ executive memorandum (Ex 8) issued on 30 October 2007. 93 Exhibit 8 notes that the Use of Force Guidelines is under review and that, until the review is completed and further advice, it is to be considered as a guide to the best practice and not represent a mandatory approach. Mr Papas submitted (TR 16/7/08, pp4,5): "Mr Sweet had in fact utilised the appropriate departmental procedures at the beginning of the intervention. When he arrived at the end of the corridor with Youth Officer Heycock, he placed himself in the best position to be face to face with detainee RS to engage him by verbal negotiation and attempt de-escalation and adopting the stepping stones which can be found at pages 10 to 11 of exhibit 6. We submit that the CCTV supports all of this evidence. Importantly, annexure C from exhibit 3 and Mr Sweet's second statement is his report on the use of force. And what can be noted there is that his unit manager, Mr John Heffernan, has signed off on this use of force as an appropriate use of force under the circumstances. In the event that your Honour finds that the misconduct occurred, being that the restraint was unauthorised, it does not necessarily amount to misconduct or to misconduct that warranted disciplinary action rather than remedial action." 94 Mr Papas submitted that if the Commission were to find that excessive force was used it is at the lower end of the scale and that the sanction of termination is harsh. 95 Mr Papas referred to Corbeski v Bluescope Steel (AIS) Pty Limited [2006] NSWIRComm 1170 where Connor C sets out principles to be considered in assessing whether misconduct has been sufficient to warrant summary dismissal. The Commissioner said (at para 41): "A single act of misconduct may be sufficient to justify summary dismissal, if it is serious enough and strikes at the heart of the contract of employment [ Laws v. London Chronicle (Indicator Newspapers) Limited (1959) 2 All ER 285 and the Homebush Abattoir Case (1966) AR 371 at p.374]. But the incident in question, when measured against Mr Corbeski's lengthy and otherwise satisfactory employment, whilst it was clearly wrong, does not, in my opinion, strike at the heart of his contract of employment. A single act of bad temper does not usually give rise to grounds for summary dismissal. The matter must be assessed according to the standards of men, not angels [ Jupiter General Insurance Company Limited v. Andeshir Bomanji Shroff (1937) 3 All ER 67 at pp. 73 and 74]." 96 Mr Papas submitted that a relevant consideration in determining whether excessive force was used is the fact that the detainee suffered no injury, which is supported by his denial of discomfort to a number of youth officers checking on him on the evening after the event. 97 Mr Papas was critical of the investigator for not interviewing Mr Newman and Ms Heycock who were both direct participants in the event. 98 The investigator was unable to interview Mr Newman, who had been the victim of an assault by a detainee (described by the investigator as a big king hit to Mr Newman). 99 Mr Papas submitted that the investigator's reason for not interviewing Ms Heycock should not be accepted. Mr Papas put (TR, 16/7/08, p 5): "She was a material witness standing behind the detainee at all times and to some extent at least continuing to assist with the restraint. The CCTV does not have audio, so she could have given evidence as to what was said by Sweet and the detainee. The general atmosphere between detainee RS and detainee BB and her birds-eye view of the incident, for example did it look like detainee RS and Mr Sweet lost their balance and fell over, was RS slipping on his socks. Also was she going to assist Mr Sweet in a restraint such as a two person bear hug as illustrated in pages 18 to 19 of exhibit 6?" 100 Mr Papas asserted that he was entitled to the adverse inference enunciated in Jones v Dunkel (1959) 101 CLR 298 that the DJJ did not call Ms Heycock to give evidence in this matter as she would not have assisted their case. 101 Mr Papas submitted that it was not the applicant's responsibility to call Ms Heycock as the onus of proof rests with the DJJ. 102 Mr Papas submitted that the evidence of Ms Toms should be accepted as direct evidence of what Mr Sweet said to her; and the evidence of Ms Adams not accepted as she had no direct involvement and was only able to depose what she had been told by others. 103 Mr Papas submitted that the DJJ misunderstood and misapplied the investigator's report. Mr Papas referred to the investigator's finding that (Ex 14, p21): "… I think this matter involves misjudgement by A/UC Sweet rather than deliberate hostile attempt"

104 Mr Papas submitted that this does not support the DJJ's assertion to Mr Sweet and in these proceedings that Mr Sweet intentionally and deliberately flouted the DJJ's procedures and took detainee RS to the ground as confirmed in the allegations put to Mr Sweet in the following terms (Ex 14, annex. C): "On or about 5 May 2007 in the Jacaranda Unit at Acmena Juvenile Justice Centre you used excessive force on detainee RS in breach of clause 50 of the Children (Dentention Centres Regulation 2005. On or about 5 May 2007 in the Jacaranda Unit at Acmena Juvenile Justice Centre you used an inappropriate and unauthorised method of restraint on detainee RS " 105 Mr Papas further submitted that the specific allegations are not referred to in the letter of termination (Ex 14, annex. E, pp107, 108) which refers only to an act of misconduct. 106 Mr Papas submitted that Mr Conway's evidence should be given considerable weight by the Commission having regard to Mr Conway's experience, expertise and lack of any prior association with Mr Sweet. 107 Mr Papas submitted that no weight be given to any earlier reprimand to Mr Sweet for excessive force as there was not a complete investigation of that event and there is no avenue of appeal or review where a reprimand is given. 108 Mr Papas submitted that it is very difficult and unfair to dissect a physical encounter of the type involved here; and in so doing regard should be had to the uncertainty of the training and Use Of Force Guidelines. 109 Mr Papas submitted that the standard of men not angels (see Jupiter General Insurance Company Limited v Andeshir Bomanji Shroff [1937] 3 All ER 67) is the appropriate consideration. 110 Mr Papas submitted that there is no practical impediment to reinstatement, which he put is supported by an unusually high level of supportive character statements. 111 Mr Papas sought orders for reinstatement, restitution of lost wages, and continuity of service. Mr Papas canvassed alternative findings open to the Commission; and also sought a determination that the actions of Mr Sweet did not constitute reportable conduct pursuant to s 39 and s 33(1) of the Commission for Children and Young People Act 1998 (CCYP Act); or alternatively, were not reportable as Category 1 but as a Category 2, not of a serious nature. SUBMISSIONS FOR THE RESPONDENT 112 Ms Anderson submitted that the determinations sought in respect to the CCYP Act are not available as Mr Papas has not led any evidence or put any material before the Commission to allow consideration of the matter, nor has he established a jurisdictional basis for his application. 113 Such an application must be properly made and attended by specific argument. It is not available to a party, on the run, almost as an afterthought, during the course of other proceedings.

114 Ms Anderson refuted Mr Papas' submission in respect to Mr Sweet's intentions, putting that the investigator relied upon intention only to distinguish the criminal offence of assault from the use of excessive force. Ms Anderson submitted that this does not diminish the investigator's conclusion that Mr Sweet used excessive force contrary to his obligations pursuant to cl 50 of the Regulation. Ms Anderson further emphasised that the finding against Mr Sweet is that he engaged in misconduct. Ms Anderson put that intention or lack thereof is not a necessary element of misconduct. 115 Ms Anderson submitted that the standard of men not angels is misplaced here, putting that the employer is entitled to expect that a trained and experienced youth officer should bring more to the performance of his duties than that which would be expected of "the ordinary person". Ms Anderson noted that a Director General of the DJJ had found Mr Sweet's attitude towards managing difficult behaviour questionable and requested further training for him. 116 Ms Anderson submitted that Mr Conway's observations were his own personal views and not that of the DJJ, which strongly defends its action of termination of Mr Sweet's employment. 117 Ms Anderson submitted that Mr Sweet's attitude toward the use of force has been considered by three successive Director Generals of the DJJ and found not to meet it's standards. 118 Ms Anderson submitted that Mr Conway's evidence and that of the character witnesses was flawed as none of them were aware of all of the circumstances. 119 Mr Conway has seen the CCTV vision and the investigator's report, but has not seen any of the attachments thereto, including the record of interview with Mr Sweet. 120 Mr Conway and the others have not seen Mr Sweet's statement in this matter nor heard the oral evidence. 121 Ms Anderson submitted that Mr Sweet had failed to meet the standards of commonsense and integrity set out in exhibit 5 at principle 2: "Staff exercise a high degree of integrity and common sense when they are in situations where physical contact is likely to occur with clients." 122 Ms Anderson submitted that it is abundantly clear from the interview with the investigator and Mr Sweet's statements (Ex 2 and Ex 3) in this matter that Mr Sweet is an unreliable witness prepared to depose whatever will suit his own interests without regard to truth. 123 Ms Anderson submitted that the requirements of cl 50 of the Regulation refer to (TR 16/7/08, p 9): "somebody who has been trained to work in a particular environment dealing with children who need to be shown the right example, not the wrong example. And even Mr Sweet acknowledges that many of these children come from homes where they have been taught that the best way to settle a dispute is with force. The Department wants to make it very clear in these proceedings that it is an integral part of the role of a youth officer to set an example to the contrary, that is, that the use of force and certainly the use of excessive force is not the way in which you resolve a dispute." 124 Ms Anderson submitted that Mr Sweet's explanation is not assisted by criticism of the Use of Force Guidelines, or the fact that they are under review. Ms Anderson put that, whilst under review, these guidelines remain the reference for best practice and the general requirement that: "A method that restrains the detainee in accordance with approved departmental restraining techniques must be used."

125 Ms Anderson submitted that the open contempt for the DJJ's techniques and procedures which Mr Sweet exposed to the investigator during his interview betrays his real view. Ms Anderson submitted that Mr Sweet's attempts to resile from these views in his evidence in this matter to best service his interests on the basis that he was angry and stressed when being interviewed by the investigator are not plausible. 126 Ms Anderson submits that these attitudes, exposed by Mr Sweet to the investigator, cannot be explained on the basis of Mr Sweet having a bad day. The interview with the investigator was on 30 July 2007. Mr Sweet repeated his sentiments in correspondence to the DJJ on 2 November 2007 (Ex 14, p89-91). 127 Ms Anderson submits that it is inherent dishonesty that would cause a person to lie, not anger and stress. Ms Anderson puts that anger and stress may cause a person to go further (in expressing their view) than they would otherwise. 128 Ms Anderson went to what she alleged were a number of inconsistencies between Mr Sweet's interview with the investigator and his evidence in these proceedings to support the proposition that his evidence should not be accepted unless it is supported by my own observation of the CCTV images. 129 In particular Ms Anderson referred to Mr Sweet's evidence that (Ex 14, p34): "My memory of the event is different to the CCTV and after having sighted the CCTV its changed the way I thought the event actually went down"

and (Ex 14, p35): "I recall taking the young person to the ground and hurting my elbow. But I actually thought that I would've put a seat belt type restraint on the young person." 130 The seatbelt type restraint is described as one across the shoulders, staying away from the head and neck. 131 Ms Anderson connected this response to the investigator with Mr Sweet's evidence (Ex 2, para 45) that he was actually trying to use a bear hug, which is an authorised form of restraint. 132 Ms Anderson relies upon Mr Sweet's statement that (Ex 14, p35): "I took the young person to the ground"; and (at p36): "I was struggling with the kid and I rocked back, overbalanced him, took his centre of balance and we went to the ground." 133 Ms Anderson submitted that there is no suggestion in these statements that this was anything other than a deliberate act. 134 Ms Anderson submitted that Mr Sweet did not mention the possible effect of RS being in socks on the carpet until he became aware of Mr Conway's observations to this effect when he then adopts that explanation to suit his purpose. 135 Ms Anderson discounts the sock explanation, submitting that RS can be observed on the CCTV vision on his toes, shaping up to fight, having kicked his thongs off to get a better foothold. Ms Anderson submitted that the CCTV vision shows no evidence of RS's socks slipping on the carpet. 136 Ms Anderson further relied upon Mr Sweet's answer to the investigator's question 11 where, for the first time, he remembers being struck by RS. Mr Sweet says (Ex 14, p36): "I'm not happy with that particular restraint, looking at the CCTV, but as I said, it was instantaneous. Looking at the CCTV, it looks like he struck me." 137 Ms Anderson submitted that this is inconsistent with Mr Sweet's evidence in these proceedings that he could remember the pain. 138 Ms Anderson submitted that Mr Sweet's suggestion that his action in taking RS to the floor was an instinctive reaction to being hit in the chest by RS discloses his intention to use sufficient force to put RS on the ground, which is excessive force in the circumstances. 139 Ms Anderson refers to Mr Sweet's comment (Ex 14, p37): "And violence is often the only answer for them";

as evidence that Mr Sweet holds attitudes and beliefs contrary to the imperative that youth officers do not perpetuate resort to violence as a resolution to issues. 140 Ms Anderson also refers to Mr Sweet's comment (Ex 14, p38): "I cannot see what else I would have done"

as demonstrating a lack of remorse, failure to accept the gravity of his actions and indicative of future transgression of this type if reinstated. 141 Ms Anderson submits that Mr Sweet could have used, or attempted to use, an approved departmental restraint. Ms Anderson submits (TR, 16/7/08, p13): "And in the first paragraph that has his initials on that page, in the second line he says, 'Even on the CCTV in real time it looks like about 3 seconds, yeah. I didn't think about what I was going to do.' Now, with respect, that's simply not good enough from a youth officer. If that is going to be the attitude of youth officers that they will go into a situation that may require the use of force without thinking about it, then being a youth officer is not the right job for them, particularly in circumstances where they've had a warning from the Director-General and they've had refresher training." 142 Ms Anderson referred to Mr Sweet's second statement (Ex 3) wherein Mr Sweet deposes that he spoke to all of the youth officers in the Jacaranda Unit, saying: "I think I took him high". 143 Ms Anderson submits that there would be no reason for Mr Sweet to say this if he thought he restrained RS around the shoulders. 144 Ms Anderson further submits that Mr Sweet's evidence that (Ex 3, p2): "I did not intentionally or deliberately restrain detainee RS high around the neck area" is inconsistent with an explanation that he restrained RS around the shoulders. 145 Ms Anderson submits that cl 50 of the Regulation is specific in its authorisation of the use of force and does not include the maintenance of discipline and the good working order of the centre. 146 Ms Anderson submits that Mr Sweet was made well aware of the consequences of failing to comply with the DJJ's guidelines set out in "Trainers Resource Package for Protective Tactics" (Ex 6), which sets out on page 3, in a paragraph headed Reasons For Learning: "Failure to adhere to these guidelines will result in disciplinary action and/or criminal charges ." 147 Ms Anderson relies upon Mr Sweet's training record to demonstrate that he received appropriate instruction, which she puts reinforces the requirement to use no more force than is reasonably necessary; and that: "a detainee must not be intentionally restrained in the head or neck area". 148 Ms Anderson emphasises that the Regulation is a legislative standard set by Parliament, not like those of the DJJ, which it may alter or amend. 149 Ms Anderson acknowledges that the investigator conceded that, as a matter of completeness, he could have or should have interviewed Ms Heycock. 150 Ms Anderson submits that notwithstanding the best evidence is that on the CCTV, which she put is unassailable as to an excessive use of force. 151 Ms Anderson submits that the PSA was able to interview and obtain statements from a number of DJJ employees and could have just as easily interviewed and brought a statement from Ms Heycock, enlivening a Jones v Dunkel inference against the PSA. 152 Ms Anderson notes that exhibit 2 is a statement taken by the PSA and accordingly Mr Sweet cannot claim to have been under the stress or duress of investigation to say something he did not mean. 153 Ms Anderson further questions the veracity of Mr Sweet's recall of the event by reference to Mr Sweet's deposition that (Ex 2, para 34): "I recall I said words to the effect of 'chill out, settle down mate'", then (para 35): "The next thing I could recall was that suddenly we had lost our balance and were falling to the ground". 154 Ms Anderson puts that, on one hand Mr Sweet deposed that seeing the CCTV refreshed his memory, and now, more than a year later, he is saying that he cannot remember anything between saying "chill out, settle down" to RS and them losing their balance; inferring that Mr Sweet's evidence is unreliable. SUBMISSIONS IN REPLY 155 Mr Papas submits that the difficulty confronting Mr Sweet throughout this process is that the onus was consistently on him to justify or explain the incident in various forms; and that Mr Sweet did not waver from his lack of intention to use excessive force or to take RS high or to the ground. 156 Mr Papas submitted that there were accidental consequences of particular situations in the difficult and challenging environment that youth officers have to work in and the clients they have to deal with. 157 Mr Papas submits that Mr Sweet is a capable officer who was held in sufficient confidence for the DJJ to appoint him as acting Unit Co-ordinator prior to this event.

158 The report of Ms Adams and the information she provided to the investigator are complete hearsay and are not supported in any way. I give this no weight at all. 159 The information given by Ms Toms to the investigator is direct evidence but is not supported by direct evidence in these proceedings. 160 The Jones v Dunkel assumption could apply equally to the Applicant or Respondent, though more heavily in the circumstances of the Respondent who seeks to rely on the information of Ms Toms. 161 There is little assistance to the DJJ from the observations of Ms Toms which, on objective analysis, support Mr Sweet's position that he was concerned for RS; not because he had done something wrong, but because he was unhappy with the episode of violence initiated by RS; and in his role of Acting Unit Co-ordinator he held a genuine concern for the wellbeing of a detainee. 162 It is to Mr Sweet's credit that he sought out a staff member whom he believed had a good rapport with RS to attend to him. 163 That RS was advised that he could bring a complaint against Mr Sweet and chose not to, confirming to Ms Toms that he was "OK", is further supportive of Mr Sweet. 164 The evidence of Mr Conway is supportive of Mr Sweet and is given some weight in consideration of the matter. 165 The case law relied upon by Mr Papas and Ms Anderson is of little utility in this matter. Each case is distinguished on the facts. 166 The civil standard of proof enunciated in Briginshaw is the applicable standard; however, in reaching the necessary comfortable satisfaction each case must be considered on its own merit and circumstance. 167 I accept Ms Anderson's submissions that the CCTV images are the best evidence and that the Commission must come to its own view. The conclusions of the DJJ, Mr Sweet and Mr Conway provide a range of opinions. However assisted by those opinions, I must come to my own conclusion. 168 I have given careful consideration to the evidence and had the opportunity to review the CCTV images closely and often. 169 It is appropriate to record my observations of the CCTV images here. CCTV VISION

170 The incident of restraint on RS, occurring on 5 May 2007, was captured by a CCTV surveillance system from three angles. Each of the cameras is date and time stamped, however, these times are not synchronised and appear slightly different on each camera. This does not detract in any way from the material value of the CCTV footage or inhibit analysis. 171 During the course of proceedings both Mr Papas and Ms Anderson questioned Mr Sweet closely on the event with the assistance of the CCTV images. 172 Exhibit 4 is a DVD of the CCTV images which was used by the parties for the purpose of cross examination during proceedings. This version allows for stop, rewind and replay but does not have capability for frame by frame examination. 173 Ms Anderson tendered a DVD with Mini Player capability (Ex 7) which allows examination of the event frame by frame, providing for greater insight. The First File on Exhibit 7 174 This angle of vision (identified on Ex 7 as 05.05.07 DVR CH 11 RSx2.re3) is along the corridor and shows Mr Sweet and Ms Heycock in a recreation area. They become aware of an incident along the corridor and run instantly in that direction. A group of 10 detainees fill the corridor behind them to observe events. This group moves slowly down the corridor towards the event and, as they do, two youth officers, first a male, then a female, distinguished by the wearing of white shirts but otherwise not identified in these proceedings, move through them quickly in the direction of the altercation. 175 The male youth officer in the white shirt proceeds at a faster pace than the female officer who is carrying a clipboard. The female moves more slowly through the group of onlookers, motioning them to move back and disperse. They begin to move away down the corridor, though remain interested observers. 176 This angle does not show any useful vision of the event involving contact between RS, Mr Sweet, and other youth officers. 177 This footage reveals that Mr Sweet and the youth officer in the white shirt confer with the detainees who had been involved in the activity, while Ms Heycock remains on observation in the corridor with Mr Newman.

178 Mr Sweet and the female officer with the clipboard engage in some conversation. Mr Sweet moves back along the corridor with her and can be seen attending to his right elbow. 179 At the conclusion of this vision there remains a number of people in the corridor and apparent interest in the person placed in the segregation room. 180 The start time of this view is 18:43:05, the end time is 18:45:00. The Second File on Exhibit 7

181 The second CCTV recording found in exhibit 7 is 05.05.07 DVR CH 11 RSx3.re3. 182 The image opens at 18:35:23 with a view down the corridor of Mr Sweet and Ms Heycock in conversation. At 18:35:28 RS is seen backing up the corridor, shaping up to fight. By 18:35:32 the other protagonist (referred to as BB) has entered the scene. RS continues to back away and shape up. Mr Sweet and Ms Heycock are approached by another detainee and at this instant (18:35:33) Mr Sweet looks over his shoulder toward the scene, then he and Ms Heycock run in that direction. Mr Newman is visible in close proximity to BB. 183 Mr Newman moves between the protagonists and separates them as Mr Sweet and Ms Heycock continue to run along the corridor. As he separates them, Mr Newman moves RS towards Mr Sweet and Ms Heycock holds BB away. Mr Sweet places a hand towards each of RS's upper arms and Ms Heycock places her hands on either side of RS's back. RS turns away from Mr Sweet and then takes a half pace backwards, which disengages him from Mr Sweet, and pushes him away. RS then lunges in between Mr Sweet and Mr Newman towards BB. Mr Sweet brings his right arm across the front of RS at shoulder height to RS and Ms Heycock is seen to grip the back of RS's t-shirt. 184 As RS lunges forward his head goes down, resulting in RS's chin in the crook of Mr Sweet's elbow. During the course of this action Ms Heycock takes hold of the lower back of RS's shirt and moves clockwise from the right of RS to be directly behind him. Mr Sweet's arm then moves down away from the head and neck of RS; Mr Sweet's head is on the left of RS resulting in Mr Sweet having no vision of Mr Newman, BB or Ms Heycock. 185 It is further apparent from this angle that Ms Heycock is exerting some force on RS, evidenced by the stretching of his t-shirt. 186 Mr Sweet's movement is to shift RS away from BB, which has him moving in an anti-clockwise direction. Ms Heycock continues her hold on the back of RS's shirt, continuing to move in a clockwise direction, ultimately losing her grip as Mr Sweet and RS fall to the floor. 187 Mr Sweet and RS are on the floor by 18:35:42, a lapsed time of less than two seconds from the lunge by RS at BB. 188 During this time Mr Newman has continued to restrain BB by holding his left hand on BB's chest. Mr Newman observes Mr Sweet and RS on the floor, he dismisses BB and moves to assist them as does Ms Heycock. 189 The youth officer in white shirt is seen to arrive, there is no clear vision of Mr Sweet and RS on the floor as this is obscured by Mr Newman. 190 By 18:35:56 Mr Sweet has assisted RS to his feet and, unaided though observed by Mr Newman, Ms Heycock and the youth officer in the white shirt move RS across the corridor with his left hand on RS' right upper arm and his right hand, palm open, against RS' chest. RS moves aggressively toward BB and is backed away toward the wall by Mr Sweet. RS goes out of vision then returns held by Mr Sweet and Mr Newman on either side of him. 191 RS is then moved back to the centre of the corridor by Mr Sweet and Mr Newman and suddenly makes a further lunge in the direction of BB, who is not in vision. RS is restrained then lunges again held by Mr Sweet and Mr Newman on either side and Ms Heycock in front of him. RS' socks slip on the carpet and he is prevented from falling by Mr Sweet and Mr Newman. Mr Sweet is then assisted by Mr Newman to escort RS to the segregation room opened by the youth officer in white shirt. 192 On this view RS has been removed from the situation and placed in the room and the door closed by 18:36:15. 193 Mr Sweet is seen to walk down the corridor away from where the altercation took place and away from the room in which RS has been placed; he confers with a person out of vision and the youth officer in white shirt. The youth officer with the clipboard is seen to walk down the corridor, provides documents to another detainee, apparently instructing him in respect to the documents, then turns and walks away followed by Mr Sweet. They engage in some conversation as they walk back along the corridor. Mr Sweet is seen to attend to his right elbow. A number of detainees mill around the corridor, some offering comments through the door to RS. They are moved along by the youth officer in white shirt who converses with RS without opening the door. 194 One detainee returns to the vicinity, passing by the door to the room in which RS has been placed, sliding his hand across the door and apparently making some comment. 195 At 18:39:11 Ms Heycock is observed checking on RS which she does without opening the door, she remains in the vicinity with Mr Newman at one end of the corridor, Mr Sweet at the other, and Ms Heycock in the corridor as the situation settles down.

196 This file concludes at 18:40:00. The Third File on Exhibit 7

197 This view (05.05.07 DVR CH 11 RS.re3) is from a camera in the vicinity of the altercation, filming the corridor toward the event and provides the best close-up vision of the contact between RS and youth officers, including Mr Sweet.

198 This vision commences with a scene of a number of detainees, including RS, at a table and two bench seats set up in the corridor. RS stands up with his back to the camera, flicks off the thongs he is wearing, leaving him with only socks on his feet, and takes an aggressive fighting stance. RS continues to back away whilst another detainee, identified as BB, stands up from his chair and follows RS, shaping up to fight him.

199 Mr Newman, who was sitting opposite BB, also rises from his seat and commences to move in between the protagonists. Mr Newman places a hand on BB's chest and one towards RS. Mr Sweet and Ms Heycock are seen running to assist Mr Newman who has BB backed against the wall with his left hand on his chest and RS palmed away in the direction of Mr Sweet and Ms Heycock. Mr Sweet is seen to move his body in between RS and BB and places his left hand on the upper right arm of RS and his right hand on RS' upper left arm. RS takes a half step backwards and at this time Ms Heycock has her hands at waist level, either side of RS, who then lunges forward, Ms Heycock's hands move down and she takes hold of the back of RS' shirt. Mr Sweet moves back in between RS and BB with his left hand on RS's right shoulder, his right arm moves around in front of RS to his left shoulder. Mr Sweet continues to turn in a clockwise direction, moving RS away from BB who continues to be passively restrained by Mr Newman.

200 During this movement Ms Heycock is observed gripping RS' t-shirt and moving quickly in a clockwise direction from the right of RS to his left. Ms Heycock has RS's t-shirt stretched taught, indicating that she is trying to pull him away from Mr Sweet and BB, applying force by use of her bodyweight. RS and Mr Sweet fall to the floor, Mr Sweet landing heavily on the point of his right elbow. Ms Heycock has lost her grip on the t-shirt and constrains RS on the floor by holding his legs. 201 It is apparent from the observation of the eight frames within the time point 18:43:21 that at the commencement of this second Ms Heycock moves from right to left behind RS with a grip on his t-shirt and her bodyweight shifts from her right leg to her left leg which swings RS' lower body in the opposite direction to which Mr Sweet takes his upper body. The second frame shows RS lunging forward, the third frame shows Mr Sweet moving in toward RS with what could be an intention to apply a bear hug. The fifth frame is the first movement by Mr Sweet taking RS away from Mr Newman and BB. In the seventh frame it is even more apparent that Ms Heycock is pulling RS' lower body in the opposite direction to which Mr Sweet is taking his upper body, thus shifting his centre of gravity, causing Mr Sweet and RS to fall. By the ninth frame in this sequence they have lost their balance and are on the way to the floor. 202 In the first frame of the time point 18:43:22 Ms Heycock has moved her bodyweight back to her right foot following RS and Mr Sweet to the floor. RS has one foot outstretched seeking to maintain his stance and it is at this point where his sock slips on the carpet. 203 By the fourth frame in the time point 18:43:22 Mr Sweet and RS are on the floor. 204 There are 10 frames in the CCTV vision covering the action from the lunge forward by RS to Mr Sweet and RS arriving on the floor, a period of less than two seconds.

205 RS is placed in segregation. It is not necessary to restate these events which accord with the vision from the second file. 206 Whilst walking back along the corridor with the youth officer with the clipboard Mr Sweet is observed examining his right elbow which had taken the brunt of the fall. 207 This camera otherwise records comings and goings in the corridor; RS appears at the observation window of the room and engages in some exchange with officers and detainees who attend him.

209 I share the conclusion expressed by the investigator and Mr Conway that there is no evidence of malice or intent by Mr Sweet to put RS on the ground. 210 I accept Ms Anderson's submission that RS kicked his thongs off so he could improve his footing for the intended fight. I accept that socks on carpet give better traction than socks in rubber thongs; however, there is a point when the friction between the sock material and carpet will give way. Without some empirical testing it is difficult to form a view as to how firm or slippery the socks worn by RS would be in the area of the incident. 211 It is, however, in my opinion, reasonable to conclude that the transfer of RS's body weight by the interaction of Mr Sweet moving his upper body in one direction and Ms Heycock moving his lower body in the opposite direction would be a principle contributing factor to his socked feet slipping on the carpet. 212 On close study of the CCTV images I come to the conclusion that the single biggest contributing factor to Mr Sweet and RS falling to the floor was the centrifugal effect of Ms Heycock's swinging off the back of RS's t-shirt. This had the effect of twisting RS in a clockwise direction, opposite to the direction Mr Sweet was taking RS away from BB. The combination of these actions took the lower half of RS in one direction and his upper body in another; effectively pulling his legs out from under him, resulting in both Mr Sweet and RS falling to the floor. 213 I do not impute any criticism of Ms Heycock in the event. 214 It is clear to me from the CCTV vision that the energy in the event comes from RS, in particular his sudden, second lunge at BB. There is room for the view that Ms Heycock was swung around by the lunge from RS, with the effect that her body weight contributed to the fulcrum effect, resulting in RS and Mr Sweet falling. The options for Ms Heycock were only to hang on, or let go. Had she let go of RS he may well have got through Mr Sweet to BB. Had this occurred the West v Coast alliances could have been ignited and the situation escalated. 215 I note that the investigator did not remark on Ms Heycock's role in the matter. He did not interview her, nor was she called to give evidence. 216 Similarly, Mr Conway did not refer to Ms Heycock in his analysis of the event. 217 I have come to the conclusion that both the investigator and Mr Conway were inadvertently directed away from Ms Heycock's role by the request to them to examine Mr Sweet's actions. It was only when the CCTV evidence was viewed carefully with a broader focus on the event that I became aware of Ms Heycock's contribution to the fall. 218 I do not accept that Mr Sweet "took RS high". 219 On analysis of the CCTV vision it is clear that, in the first encounter on arrival at the scene, Mr Sweet has applied passive and gentle restraint which was initially complied with by RS. 220 It was RS's unexpected lunge at BB which injected force into the situation. In lunging forward, RS led with his head and shoulders, driving forward and down; Mr Sweet put his arm out at approximately RS's chest level, however, the downward lunge by RS resulted in his chin digging into the crook of Mr Sweet's forearm. 221 I conclude that the principle agent of force was RS, not Mr Sweet. 222 When considered from this perspective Mr Sweet's evidence that he was surprised by the fact that they fell is entirely understandable. 223 Careful analysis of the transcript reveals that Mr Sweet offers the explanation that he and RS fell by accident and the fact that RS was wearing socks on the carpet may have contributed. 224 The fact that at first Mr Sweet had no explanation, that is he could not explain or understand how he and RS came to fall, then developed the explanation above under pressure from the DJJ to justify his actions is not a basis for an adverse finding of credit against Mr Sweet. 225 The explanations offered by Mr Sweet are supported by an objective view of the CCTV images which also support the proposition that Mr Sweet would have little understanding of what was or wasn't happening with Mr Newman, BB and other detainees as he is facing RS. When RS lunges forward Mr Sweet's head is to the right of RS who is then blocking any view Mr Sweet may have of Mr Newman, BB and the others. 226 I do not accept the argument advanced by Ms Anderson that Mr Sweet should be regarded as an unreliable witness because he put several explanations of the event, which happened very quickly. Mr Sweet was placed in the impossible position of being pressed to explain the unknown. 227 If Mr Sweet was guilty of anything it was being over-co-operative and eager to satisfy the DJJ with an explanation. The DJJ's refusal to acknowledge the difficulty of recollection and the plausibility of any innocent explanation offered suggests a pre-judgment of the matter. This notion is strengthened by the DJJ's obvious preference and weight to the information from Ms Adams, compared to its rejection of anything put by Mr Sweet. 228 I accept the submissions of Mr Papas that the difficulty confronting Mr Sweet throughout this process was that the onus was consistently on him to justify or explain the incident in various forms; that Mr Sweet did not waver from his lack of intention to use excessive force or to take RS high or to the ground.

229 For these reasons I conclude that Mr Sweet did not use excessive force contrary to cl 50 of the Regulation.

230 The answer to this question must be no. 231 I have held on the evidence, as outlined above, that in the first contact with RS Mr Sweet applied passive restraint in accordance with the guidelines. 232 In responding to the lunge by RS the actions of Mr Sweet were influenced by the downward nature of the movement by RS and the simultaneous centrifugal motion created by Ms Heycock. 233 It is my conclusion that there is no basis for criticism of Mr Sweet in this. 234 In coming to this conclusion I give no weight to the fact that the Use of Force Guidelines have been suspended. The Guidelines remain a reference for best practice, which Mr Sweet applied as best he could in the circumstances

Has Mr Sweet Exhibited Attitudes Inappropriate to Employment as a Youth Officer?

235 This allegation is founded on comments made to the investigator by Mr Sweet during the course of interview on 30 July 2007. The record of interview is attached to Ms Christoph's Statement (Ex 14, att. 4). 236 Throughout the interview Mr Sweet was uncomplimentary towards DJJ, the investigation process, and prescribed methods of restraint known as Work Practice III, which he put had been discredited and was unworkable. 237 At question 20 of the investigation interview Mr Sweet said: "They're big boys some of these boys and they punch like bloody …like a man and the punches come real quick, you know? And according to 'Work Practice Three' you cover up and roll with the punches. Get real: they'd slaughter you. No." 238 At question 21 Mr Sweet asserted that investigators in the Department of Corrective Services had all worked in the job and understood the circumstances that confronted officers, however, in DJJ he put: "…the so-called 'Professional Conduct', okay? - they have a real anti-Youth Officer bias. I've seen them destroy careers, okay? And there's examples I could give off the top of my head right now, you know? And...yeah. And it's changing because the...the...all the members on the floor are sick to death of it, you know? And sick to death of having the first thing that comes into your head, "Is this going to cost me my job?" before we go into a use of force situation. ... ... I'm a fifty-one-year-old male, okay? I don't bounce like I used to. I hurt easy. you know? And I keep myself reasonably fit but I'm not Jackie Chan, okay? I avoid use of force situations all the time; I hate use of force situations. I always get a bit hurt. okay? You... The point is none of us like use of force situations. And yet you ...the bloody Professional Conduct look on as all as if we're the criminals, as if we're the ones that are causing the trouble. And the kids know that they can make allegations against workers. They've said to workers, "I'll have your job." You know? They know it. … … They all get together and talk. It's so easy for them to make false allegations against workers and the Department runs with it. Not only that, but the Department of Juvenile Justice appears to actually be fostering a…a…a culture of division, where if a Youth Officer makes a false allegation against another Youth Officer." 239 Mr Sweet offered some examples of allegations by youth officers against other youth officers which had been discredited, though not before causing considerable difficulty for those officers subject to the baseless allegations. 240 At question 23 Mr Sweet said: "I believe Professional Conduct are using bullying tactics I believe they are - what would the word be? It's institutionalized bullying of Youth Officers. None of them have any floor experience, okay? I've seen … I've been here and been questioned by a young female from Professional conduct, younger than my daughter." 241 Mr Sweet also informed the investigator: "We're not the criminals here. We're the ones who keep a lid on what goes down in these Centres." 242 At question 33 of the interview with the investigator Mr Sweet was critical of some staff who, despite training, avoid difficult situations where detainees misbehave, and consequently avoid any risk of complaint or investigation, however, having allowed detainees to get away with minor rudeness or misbehaviour embolden them, making the tasks of youth officers in subsequent shifts more difficult. Mr Sweet said: "Someone else comes onto shift, a shift or two later, and this kid's been getting away with it with this crew and then he tries it with me or someone else and they take the person to task. "Hang on, mate. That's out of line. You'll be getting a Minor Misbehaviour." 243 Mr Sweet recounted an event to the investigator where a detainee tried to stab him with a wooden shiv. Mr Sweet said: "If it wasn't for another Youth Officer, I would've had that shiv in my back, okay? He bashed himself up, scratched himself around, made him look like a truck had run over him down there in the confinement room, and then tried to say that I jumped all over his head. And it was disproven" 244 During the course of the interview Mr Sweet maintained that he did his job well, informing the investigator that: "I've got their respect down there. I joke with them. I've defused so many different potential incidences, it's uncountable, as a lot of Youth Officers do. But, it's the ones that step up, the ones that place themselves in danger or whatever, or place themselves in a difficult situation working for the greater good of the Centre, working to look after the young people in our care - we're the ones that are getting our names mentioned all the time. … … We're not dealing with babies here; with nine-year old boys. Some of these kids fight like men....fight better than men. They're the size of men, you know? And a lot of them have got, you know, issues that.... where they need intensive treatment to deal with and they throw them in here. And now, with the ice coming in, it's going to get worse. And until Professional Conduct learn to suss out the client base that we're dealing with and then start to support the Youth Officers a bit more, instead of throwing them to the dogs every time, okay, people won't be game to use force. There'll be a fight going on and people won't step in between it, you know? And then what will they do? Charge us with failing to act. We're in a lose-lose situation here. You know?" 245 The conclusion of the interview at question 36 is: "CS Thank you, Geoff. And I apologise. 37.Q No, don't apologise. CS I've got no negative energy at you at all. 38.Q Well, my last question is do either of you have any complaint or concern about the way this interview's been conducted. CS No. It's very professional and I appreciate the opportunity you've given me ." 246 In his affidavit of evidence Mr Sweet refers to this aspect of the interview (Ex 3, para 8): "8. Further, in relation to my record of interview I wish to withdraw the negative comments that I made about the department of juvenile justice generally and the Professional Conduct Unit, particularly in my answers to question 21, question 22, question 23 and question 33. As I have explained it was a very stressful period for me. I was very frustrated and upset and angry about the nature of the allegations against me which I did not, and still do not believe are justified and I directed my anger and frustration towards others, which was wrong." 247 Mr Sweet repeated the concerns expressed to the investigator in writing to the Director General of the DJJ (Ex 14 Annex. D): Mr Sweet addresses this correspondence in the following terms (Ex 3, para 9): "9. I refer to Annexure D of Mrs Christoph's affidavit which is my written submission in this matter to the then Director General. Also at the time of writing this submission I was still very shocked, angry and upset. I wish to withdraw my negative comments about Youth Officer Deborah Adams, the Department and the Investigator. I would have no difficulty in the future working for DJJ and working with Youth Officer Adams at Acmena Juvenile Justice Centre. I just want to put this matter behind me and continue with my chosen profession, working with young people." 248 I accept Mr Sweet's evidence and the submission of Mr Papas that Mr Sweet was under considerable strain. 249 It is unfair and unreasonable, in my opinion, for the Respondent to expect Mr Sweet to be open and frank with the investigator and then to hold his opinions, as compared to an explanation of the facts, against him. 250 Mr Sweet expressed his concerns and "vented" to the investigator, providing the DJJ with valuable feedback that it could use objectively to identify areas of policy reinforcement and improve management practices. 251 I note that the interview with the investigator concluded amicably with Mr Sweet expressing appreciation for the opportunity given to him. 252 Mr Sweet had every right and cause to be upset and offended that Ms Adams' report which, without any factual basis, attributed malice to Mr Sweet by inclusion of the reference to "a crazed look on his face". 253 Mr Sweet was also entitled to be upset and offended by the weight given to this by the DJJ. 254 The fact that Mr Sweet has reconciled himself to accept this and understand that he misdirected his anger and frustration is to his credit. 255 I acknowledge Ms Anderson's submission that a primary role of the DJJ is behaviour modification and that youth officers are to be role models and to demonstrate that violence is not the solution to issues. I note from Mr Sweet's evidence that he understood this and conducted himself accordingly. REMEDY

256 For the reasons set out above I find that Mr Sweet did not use excessive force; and that he did not use an inappropriate or prohibited method of restraint. 257 This leads to a positive finding that the termination of Mr Sweet's employment was harsh, unreasonable and unjust. 258 The remedies available are reinstatement, re-employment, or compensation. 259 The application seeks reinstatement. This requires a consideration of the practicality of returning Mr Sweet to the role of youth officer with the DJJ at Grafton. 260 There is substantial evidence supporting the practicality of Mr Sweet returning to work as a youth officer at Grafton. 261 The evidence of Mr Lance Howard Stapleton (Ex 18) is that he is a self-employed signwriter and has been Mr Sweet's immediate next door neighbour for approximately 12 years. In this time the Stapleton family have come to regard the Sweet family as extended family with regular interaction between the children of each. Mr Stapleton deposes that Mr Sweet is a person of decency and integrity who he has observed refers to his work with young people with compassion and enthusiasm. 262 The evidence of Ms Gwendoline Appo (Ex 17) is that she has been employed by the DJJ for nine years and now occupies the position of youth officer. Ms Appo holds a Diploma in Youth Work issued by NSW TAFE and a Certificate IV in Youth Work issued by the DJJ. Ms Appo has worked with Mr Sweet for eight years and ten months; she is aware of the allegations against him. 263 Ms Appo, who is of Aboriginal descent, deposes that she has observed Mr Sweet to be a very competent and caring youth officer who is culturally sensitive. Ms Appo's evidence is that Mr Sweet has the wellbeing of detainees, exhibits extreme patience when dealing with violent detainees, and refers appropriate culturally sensitive matters to her for advice or defers to her handling of such matters. 264 Ms Appo states that she has confidence in Mr Sweet's abilities as a youth officer and would welcome the opportunity to work with him should he be reinstated. 265 The evidence of Ms Patricia Knight (Ex 19) is that she has been employed as a youth officer with the DJJ for eight years and seven months. Ms Knight holds a Diploma in Youth Work, a Certificate IV Trainer Assessor, has completed all of the modules offered by the DJJ in Certificate IV Youth Work, and is currently enrolled in a Frontline Management Course. 266 Ms Knight has worked at Acmena with Mr Sweet for a period of seven and half years, has known him for the past eleven years, and considers him a close friend and colleague. 267 Ms Knight is most complimentary of Mr Sweet's conduct and demeanour in all aspects of life and in particular would welcome his return to Acmena as a youth officer. 268 The evidence of Mr Kevin Newman (Ex 20) is that he has worked as a youth officer for the DJJ from 1995, first in Wagga and from 1999 to 2008 at Acmena. 269 Mr Newman is aware of the allegations and dismissal of Mr Sweet; he has read the use of force report completed by Mr Sweet involving RS leading to his dismissal. Mr Newman deposes that he has no recollection of the incident. 270 Mr Newman deposed that in eight and a half years working with Mr Sweet, he has never observed him using inappropriate force. Mr Newman is complimentary of Mr Sweet's ability, patience and concern for the welfare of detainees. 271 The evidence of Mr John Martin (Ex 21) is that he has been employed by the DJJ for a period of four and a half years, commencing as a youth officer at Acmena and progressing to Unit Co-ordinator in the Jacaranda unit. Mr Martin had been the Unit Co-ordinator in the Clarence Unit at the time of Mr Sweet's employment. 272 Mr Martin has completed Certificate IV in Youth Work. Mr Martin's evidence in respect to the work of Mr Sweet is (Ex 21, paras 7,8,9): "7. My observations of Mr Sweet in the workplace as both a work colleague and his supervisor were that I found him to be very caring towards the detainees who responded well and respected him. Mr Sweet goes to great lengths to assist and offer advice to detainees and he would also assist new staff by readily sharing his experience.

8. I observed that some detainees would seek out Mr Sweet to talk to him about their difficulties because they respected and appreciated him. Mr Sweet is a very good listener who brought a lot of life experience to his job and this showed in the way he interacted with the detainees and the rapport he built with them.

9. During the four and a half years I worked at Acmena with Mr Sweet I have never observed him to engage in any misconduct as described in the Director General's letter dated 16 October 2007. In all of the use of force incidents we have been involved in together I have only ever seen Mr Sweet act in accordance with DJJ guidelines. I know that Mr Sweet always strives to avoid placing staff and detainees in danger when using force." 273 Mr Martin deposes that he would have no difficulty working with Mr Sweet if he were reinstated. 274 The evidence of Mr Raymond Smith (Ex 22) is that he has been employed by the DJJ since September 2001 at Acmena. Mr Smith has moved through casual engagement to permanent employment as a youth officer and is, at the time of his statement, a unit co-ordinator and has acted in higher duty positions of Unit Manager, Assistant Manager Generalist Operations, and Duty Manager. 275 Mr Smith holds a DJJ Certificate III in Youth Work, a NSW TAFE Certificate IV in Youth Work; a DJJ Certificate IV in Business (Frontline Management); and has undertaken the Centre Emergency Response Team Training for Managers provided by DJJ. 276 Mr Smith deposed that he has worked with Mr Sweet as a youth worker and as his supervisor. Mr Smith's evidence is that he regards Mr Sweet to be a professional colleague and good friend. Mr Smith said: 9. In the years that I have worked with Chris I found him to be a very positive role model for the detainees; this is commendable quality as a high proportion of detainees exhibit very challenging, aggressive and difficult behaviours. Quite often in my career I have heard comments from staff from external agencies stating that it takes a very special individual to work within such an environment as exists in juvenile detention centres. I regard Chris to be one of these very special people who has the right attitude to work with our difficult and challenging client base. I have observed Chris displaying tolerance, understanding and compassion in all his dealings with detainees and even when confronted by subversive behaviours. Chris has a level headed approach when under pressure from detainees and maintains his excellent rapport to negotiate and diffuse volatile situations." 277 Mr Smith was further complimentary in respect to Mr Sweet's ability and conduct as a youth officer, deposing that he would have no difficulty working with Mr Sweet if he were reinstated. 278 I am satisfied that there is no practical impediment to reinstatement and so determine. 279 I order the DJJ to reinstate Mr Sweet with no loss of wages or continuity of employment from the date of dismissal.

Public Service Association And Professional Officers' Association Amalgamated Union Of New South Wales (On Behalf Of Christopher Arthur Sweet) And Department Of Juvenile Justice

Application for relief from alleged unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1. Pursuant to s 89(2) of the Industrial Relations Act 1996 the Department of Juvenile Justice is ordered to re-instate Mr Christopher Arthur Sweet within 14 (fourteen) days of the date of this Decision to the position of youth officer in circumstances no less favourable than those at the time of dismissal.

2. Pursuant to s 89(3) of the Industrial Relations Act 1996 the Department of Juvenile Justice is ordered to pay a sum equal to the wages lost from date of dismissal to the date of reinstatement, less any remuneration from paid employment or social services otherwise received by Mr Sweet.

3. Pursuant to s 89(4) of the Industrial Relations Act 1996 I order that the period of employment of Mr Sweet with the Respondent is taken as not having been broken by the dismissal.

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