Director of PE her Agent the Director General of the Department of Juvenile Justice v PSA Union of New South Wales

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

CASES CITED: Public Service Association And Professional Officers' Association Amalgamated Union Of New South Wales (On Behalf Of Christopher Arthur Sweet) And Department Of Juvenile Justice [2008] NSWIRComm 188

APPELLANT: Mr J V Murphy of counsel Department of Juvenile Justice (Mr Paul Houston) LEGAL REPRESENTATIVES: RESPONDENT: Ms P F Lowson of counsel W G McNally Jones Staff, Solicitors (Mr Mark Port)

CORAM: BOLAND J, President WALTON J, Vice-President GRAYSON DP

DIRECTOR OF PUBLIC EMPLOYMENT BY HER AGENT THE DIRECTOR GENERAL OF THE DEPARTMENT OF JUVENILE JUSTICE AND PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES (ON BEHALF OF CHRISTOPHER ARTHUR SWEET)

Application by Director of Public Employment by her agent the Director General of the Department of Juvenile Justice for leave to appeal and appeal against a decision and orders of Deputy President Harrison given on 15 October 2008 in Matter No IRC 381 of 2008

1 This matter concerns an application by the Director of Public Employment by her agent the Director General of the Department of Juvenile Justice for leave to appeal and appeal against a decision and orders of Deputy President Harrison made on 15 October 2008 in Public Service Association And Professional Officers' Association Amalgamated Union Of New South Wales (On Behalf Of Christopher Arthur Sweet) And Department Of Juvenile Justice [2008] NSWIRComm 188. 2 On 3 December 2008, the Full Bench, having heard the parties on the question of leave, determined that leave should be refused and the appeal dismissed. What follows are the Full Bench's reasons. 3 Mr Sweet, a member of the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA"), had been employed as a youth officer at the Acmena Juvenile Justice Centre in Grafton, New South Wales. His employment was terminated with effect from 29 February 2008 following an inquiry into an incident that occurred at the Centre on 5 May 2007. The reason for the termination was misconduct, in that it was alleged against Mr Sweet that: 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 (Detention 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]. 4 The PSA, on behalf of Mr Sweet, filed an unfair dismissal application pursuant to s 84 of the Industrial Relations Act 1996 and the matter came before Harrison DP in July 2008 for hearing. 5 His Honour noted that Mr Sweet was dismissed following an investigation into an incident whereby Mr Sweet intervened in what was shaping up to be a fight between two detainees. In order to prevent a 15-year-old detainee, RS, attacking another detainee, BB, Mr Sweet restrained RS, with both Mr Sweet and RS ending up on the floor. RS suffered no injury. His Honour described what could be seen of the incident on the CCTV footage: [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 [sic], 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.

[208] This vision concludes at 18:45:00. 6 Having reviewed extensively the submissions and evidence, including the CCTV footage, Harrison DP then considered four questions: (1) Did Mr Sweet use excessive force?

(2) Did Mr Sweet use an unauthorised or improper hold?

(3) Did Mr Sweet hold attitudes and beliefs inconsistent with the role of a youth officer?

(4) Was the termination of Mr Sweet's employment harsh, unreasonable or unjust; and, if so, what is the appropriate remedy? 7 We will consider each question, but before doing so we note that the appellant advanced its case as to the first two questions upon the basis that the Full Bench should ultimately make its determination based upon its own viewing of the CCTV footage.

8 Harrison DP concluded that Mr Sweet did not use excessive force contrary to cl 50 of the Children (Detention Centres) Regulation 2005. Clause 50 provides: 50 Use of force

(1) A juvenile justice officer must not use force against any person in a detention centre except for the following purposes: (a) to prevent a detainee from injuring himself or herself,

(b) to protect the officer or other persons from attack or harm,

(c) to prevent a detainee from inflicting serious damage to property,

(e) to prevent a person from entering a detention centre by force,

(f) to search a detainee in circumstances in which the detainee refuses to submit to being searched,

(g) to seize any dangerous or harmful article or substance that is in the possession of a detainee,

(h) to prevent or quell a riot or other disturbance. (2) A juvenile justice officer may also use force in order to move a detainee who refuses to move from one location to another in accordance with an order of that officer, but only if the officer first gives a warning to the detainee of the consequences of failing to comply with the order.

(3) In dealing with a detainee, a juvenile justice officer must use no more force than is reasonably necessary in the circumstances, and the infliction of injury on the detainee is to be avoided if at all possible. 9 As Harrison DP did, the Full Bench also viewed the CCTV footage. Whilst we do not agree with every aspect of the Deputy President's interpretation of the footage, it was open to his Honour to conclude that Mr Sweet did not use excessive force contrary to cl 50 of the Regulation such that it would justify the termination of Mr Sweet's employment. Indeed, we agree with his Honour that excessive force was not used. Unauthorised or improper hold

10 Harrison DP concluded that there had been no unauthorised or improper hold applied by Mr Sweet to RS. His Honour stated in this respect: [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. 11 Essentially, it had been contended by the appellant at first instance that the hold applied by Mr Sweet was unauthorised or improper because it involved Mr Sweet contravening his instructions and training that "a detainee must not be intentionally restrained in the head or neck area". It also appeared that the appellant regarded it as unauthorised or improper for RS to have been taken to the floor. This was based on youth officers having been trained not to take a detainee to the floor when it was a one-on-one restraint, which according to the appellant was the case here. The proper method, according to the appellant, was for Mr Sweet to have restrained RS in a bear hug, "rotate the detainee away from the other person and continue to walk away in the direction you want them to go." In the case of two-person restraint, one person was to hold the detainee in a bear hug, the other person to restrain the detainee's legs around the thigh area and then the detainee was lowered to the ground. 12 Again, whilst we do not entirely agree with the Deputy President's view of what occurred, in the circumstances we agree with what was implicit in his Honour's findings that there is sufficient room for doubt that Mr Sweet intentionally restrained RS in the head or neck area. Rather, because of the position of RS's body as he lunged at BB and the need for Mr Sweet, after his arms were pushed away by RS, to quickly re-position himself to prevent contact between RS and BB, he was left with no time to properly position his body to execute a bear hug on RS. In any event, we agree with Harrison DP that the initial movement of Mr Sweet's arm was directed towards RS's left shoulder. Further, that Mr Sweet put RS on the floor was not entirely inconsistent with the required method of a two-person restraint. Ms Heycock can be seen behind RS in the CCTV footage holding onto RS's T-shirt. As RS is put on the ground, Ms Heycock's hands move down to his upper legs.

13 The method used by both Mr Sweet and Ms Heycock was clearly not perfectly executed according to the training manual and what that manual requires for one or two-person restraint of a detainee. But it is doubtful whether the method shown in the training manual was entirely adequate to cover the situation confronting Mr Sweet and Ms Heycock. 14 However, had it not been for the extenuating circumstances we have referred to above (including the limitations of the manual itself), we would consider the method to have been undesirable and nothing in this decision should be taken as this Full Bench condoning it as an acceptable routine practice. Nevertheless, we do not consider that Mr Sweet can be considered culpable. Given the position of his body and the lunging forward motion of RS, Mr Sweet was unable to execute a proper method of restraint. If Mr Sweet had been able to restrain RS in a bear hug and Ms Heycock had managed in time to restrain RS's legs around the thigh area, there would have been nothing objectionable to lowering RS to the ground. 15 Whilst we find the hold applied by Mr Sweet to RS was not strictly in accordance with the Department's training and instructions, we do not consider it is necessary to grant leave to appeal to correct the error, given that we take the view that in the circumstances of what occurred and how Mr Sweet came to apply his training, that it would have been harsh, unjust and unreasonable to terminate Mr Sweet's employment. Inconsistent attitude and belief

16 Harrison DP noted that throughout the interview with the person who investigated the complaint against him, Mr Sweet was uncomplimentary towards the Department of Juvenile Justice ("DJJ"), the investigation process, and prescribed methods of restraint which he contended had been discredited and were unworkable. 17 Counsel for the appellant at first instance had submitted that the open contempt for the DJJ's techniques and procedures which Mr Sweet exposed to the investigator during his interview betrayed his real view. 18 In relation to the complaint regarding Mr Sweet's attitude in the interview Harrison DP found as follows: [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. 19 In our opinion, the Deputy President was perfectly correct in these findings. There was no error in this respect. Was the termination harsh, unreasonable or unjust?

20 Harrison DP found that the termination of Mr Sweet's employment was harsh, unreasonable and unjust. His Honour considered the appropriate remedy was reinstatement. We have considered his Honour's reasons for reaching these conclusions and find no error in that respect. Leave refused

21 In view of our findings, and the fact that we consider there are no other grounds that would justify the granting of leave, we confirm our decision to refuse leave. The appeal does not raise a matter of such importance that, in the public interest, leave should be granted. Orders

22 The Full Bench makes the following orders: (1) Leave to appeal is refused. (2) Stay orders 2 and 4 made by Marks J on 27 October 2008 are set aside. (3) Consistent with the orders made by Deputy President Harrison on 15 October 2008, and Order 3 and 5 made by Marks J on 27 October 2008, the appellant, within 14 days shall: (a) pay Mr Sweet a sum equal to wages lost from 29 February 2008 until 15 October 2008, the wages to include an amount pursuant to the PEO Circular 96-35 less the amount of $4,337.45 being Mr Sweet's earnings in that period of time; (b) pay Mr Sweet a sum equal to wages due and payable from 15 October 2008, the wages to include an amount pursuant to PEO Circular 96-35, from which are to be deducted: (i) payments actually made by the respondent to Mr Sweet between 29 October and 3 December; (ii) the sum of $1,000.00 being Mr Sweet's deemed earnings during that period of time. (c) pay interest at 9 per cent (Supreme Court rates) on the amount at (a) from 15 October 2008. (4) From 3 December 2008 until Mr Sweet is returned to his position at Acmena JJC, the appellant shall pay his salary calculated in accordance with PEO Circular 96-35. Between 11 and 23 December 2008 inclusive, Mr Sweet shall be on annual leave. (5) The appeal is dismissed.

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