128 The above reference to Buckman is Buckman v Burdekin (1998) 85 IR 415. In that case, the Full Bench said at p418:
Section 88 of the Act contains a number of matters which may, if appropriate, be taken into account in considering whether a dismissal was harsh, unreasonable or unjust. There is, of course, no obligation imposed by the Act upon employers to give an employee a warning prior to effecting a dismissal. However, a failure to give prior or timely warnings is a matter which properly may be taken into account as part of the consideration of general issues of substantive and procedural fairness.
See also Wilson v Department of Education and Training (2000) 100 IR 1; Byrne & Anor v Australian Airlines ; Burke v McGirr (1995) 87 IR 54; Oswald v NSW Police Service (1999) 90 IR 42; Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57; Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32; Antonakopoulos v State Bank of New South Wales ; Buckman v Burdekin and D & R Commercial Pty Ltd v Flood (2002) 113 IR 344.
129 I turn now to consider the particular facts and circumstances of this case.
130 On first blush, this case would appear to be relatively straightforward. The Commission is required to determine, on the balance of probabilities, what happened in the lead up to, and during the incident on 18 April in KT's cabin. If the Commission accepts the respondent's case, it follows that the applicants were less than honest in their subsequent interviews with management and during their evidence before the Commission.
131 Of course, one might be conveniently attracted to the proposition that the firsthand evidence of three employees holding responsible positions within the Department of Juvenile Justice is to be preferred over that of a 17 year old juvenile detainee with a long and colourful history of criminal conduct. However, it is not only the evidence of KT which is critical to this case. I shall come to these other matters shortly. Moreover, there are a number of implausible and highly improbable coincidences that have, regrettably, convinced me, on the balance of probabilities, that the incident in KT's cabin, happened pretty much as he described it to Mr Dowse the day after.
132 Accepting the applicants' version of events raises in my mind, a number of highly improbable questions. Firstly, why would Mr Gatt immediately jump to the conclusion that KT had taken the texta from the office? Could it not have been somewhere else in the office? Could it have simply gone astray? Secondly, why would it take four officers to attend upon a detainee, with no history of violence, in order to simply retrieve a texta?
133 In my view, detainee KT did not remove the texta from the office. No one claims to have seen him do it. Another scenario is far more plausible. When it became apparent that there had to be an explanation for what the anonymous phone caller had said he saw, the idea was hatched that KT had taken the texta and the applicants' retrieval of it would explain why they had been seen in his cabin.
134 Not surprisingly, Mr Wilson sought to impugn KT's evidence on the grounds, inter alia, that he had a predilection for making unsubstantiated complaints against persons in authority and telling lies. KT did not dispute that he had such a history, including a record of criminal conduct. However, Mr Wilson's contention overlooks one vital matter. KT had not complained about this incident. The investigation was initiated after the anonymous phone call. KT did not know the purpose of his first interview with Mr Dowse and it is plain from the transcript that he openly volunteered a description of the incident remarkably similar to what the anonymous phone caller reported. It could not seriously be suggested that the phone caller would know what KT and Mr Tevita would later tell the investigators.
135 KT had not complained about the matter because he had laughed and joked during the incident and did not regard it as anything but skylarking around. Bearing in mind that he liked being the centre of attention, this seems perfectly understandable. In addition, I do not accept that KT's evidence was contradictory. Reference to a 'struggle' as being inconsistent with him wrestling and laughing and participating in the prank, is to my mind his way of describing a feigned opposition to what the officers were doing at the time.
136 Before leaving the evidence of KT, I must say that his demeanour and answers to questions in the witness box was not of someone who was making up his evidence for some collateral purpose. He was open and honest when he needed to be and his testimony, even having regard for some minor discrepancies, was consistent with what he had first told Mr Dowse without any prompting or prior knowledge. Notwithstanding his history, a self confessed liar doesn't necessarily lie all the time and I don't believe KT did on this occasion.
137 A number of factual matters which arose post the incident fortify my conclusions as to what really happened on 18 April.
138 Firstly, no report of minor misbehaviour was made by any of the four officers involved. This seems extraordinary given, that on the applicants' case, KT had breached the security of the office, stolen a texta which might have been used as a weapon and refused to hand it over when asked. On any view of it, if this was what really happened, the officers were obliged to make a report in accordance with established procedures and policy. For four of them not to do so raises real doubts, in my mind, and suggests another more likely explanation. There was no report of minor misbehaviour, because KT had not committed any misbehaviour. The only misbehaviour was that of the applicants.
139 Secondly, no Use of Force report was made by any of the four officers. This omission again seems incongruous considering Mr Gatt said that KT refused to hand the texta over when asked and he had 'touched' him to retrieve it. I find the explanation of KT 'juggling' the texta and Mr Gatt gently removing it from him to be utterly fanciful. I also cannot imagine how this explanation is comparable to the innocent touching of a detainee by shaking his hand. Moreover, the juggling explanation is inconsistent with what Mr Tevita said was someone holding the detainee's arm and taking the texta out of his hand.
140 Like the first point above, there was no Use of Force report made because the officers had not used force, just as KT had described, but had been involved in a physical consensual act of horseplay.
141 The third, and most significant factor in fortifying my conclusions on this matter were the notes taken by Ms Marchant in the interviews taken the day after the incident.
142 True it is that if the interviews had been taped, this case might never have come to this. Nevertheless, in my opinion, these notes were the best and most contemporaneous account of what really had happened. It must be remembered that when called to Ms Marchant's interviews, the officers were not aware of what they were to be asked about and had not expected any disciplinary action to follow. Thus, their first versions of the incident, while attempting in part to gloss over it, were likely to be the less tainted versions than these given much later when further reflection resulted in an obviously more defensive response.
143 Mr Tevita's first interview with Ms Marchant was most damning to the applicants' case. Mr Wilson sought to discredit Mr Tevita's evidence in that he later told Mr Pell that he couldn't recall what had happened or what he told Ms Marchant. While I accept that Mr Tevita's evidence before the Commission was not particularly helpful, in that he was vague, uncertain and contradictory, the rationale for his answers to Mr Pell were entirely consistent with someone knowing he had given himself and the others up in the interview with Ms Marchant and now needed to extricate himself from his predicament by feigning no recollection. I am prepared to accept Mr Tevita's initial responses to Ms Marchant as the truth, particularly as it accords with both KT's evidence and the information from the anonymous caller. I refer to what Mr Tevita told Ms Marchant. He had held KT's legs down, and someone drew eyebrows on his face. KT had not struggled and it was all done in a joking manner.
144 I find the criticism of Ms Marchant's notes by Mr Wilson to be without substance. It must be noted that on the critical aspects of the applicants' denials of what they were recorded as having said, Mr Dowse and Mr Robinson had clear recollections of the words used. For example:
(i) Mr Perks had said that Mr Petroski drew on KT's face.