DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adam Heading
v
RR
(U2019/2509)

Application for Relief of Unfair Dismissal – dismissal not harsh, unjust and unreasonable – application dismissed.

[1] Mr Adam Heading (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 7 March 2019 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by the Respondent on 18 February 2019 was unfair.

[2] The application was heard on 18 and 19 November 2019. At the hearing, Mr Daryl Perkins appeared with permission for the Applicant and Mr James Macken of Counsel appeared with permission for the Respondent. The hearing was conducted in private after the Commission partially determined an application made on 28 October 2019 by the Respondent for confidentiality orders. The Commission ultimately made a Confidentiality Order on 12 December 2019. The Confidentiality Order provided inter alia that the Commission’s decision or reasons for decision “be anonymised so as not to include the names or other information from which it is possible to ascertain the identity of the any person, including the name of the Respondent”. 1 The Confidentiality Order did not extend to the de-identification of the Applicant or Mr Jon Peach, a witness for the Respondent and the decision-maker in respect of the Applicant’s dismissal. The Applicant did not oppose the Respondent’s application for confidentiality orders.

[3] The Applicant gave evidence on his own behalf together with:

•  Mr T, a colleague of the Applicant and a witness to the incident which led to the Applicant’s dismissal;

•  Mr K, a former colleague of the Applicant; and

•  Mr G, a former supervisor of the Applicant.

[4] Evidence for the Respondent was given by Mr Peach and Mr P, a Senior Trainer with the Respondent.

[5] For the reasons set out below, I find that the Applicant’s dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed.

Background

[6] The Applicant commenced employment with the Respondent in July 2007 as a Correctional Officer Class 1. At the time of his dismissal, the Applicant remained at that classification level.

[7] On 18 June 2018 the Applicant was involved in an incident at the workplace in which he used force on a detainee while trying to return the detainee to his cell. The incident was captured on closed circuit television (CCTV).

[8] The Applicant was suspended with pay on 20 June 2018.

[9] On 21 June 2018 Mr Peach wrote to the Applicant advising that he had determined that an investigation into allegations of misconduct by him was warranted. The allegation to be investigated was set out in Mr Peach’s letter as follows:

“On Monday 18 June in the … [details withheld] you used excessive force when you quickly took hold of Detainee … [name withheld] below the shoulders, lifted him up and forced him down on to the ground with you landing on top of him.” 2

[10] The investigation report dated 31 October 2018 concluded that on the balance of probabilities that the allegation had been made out. 3

[11] On 3 December 2018 Mr Peach wrote to the Applicant advising him that:

•  the investigation had found there was sufficient evidence to conclude that on the balance of probabilities he had used unreasonable force with the detainee on 18 June 2018;

•  he concurred with the investigation’s findings and considered on the balance of probabilities there was sufficient evidence to conclude that the allegation was substantiated and that misconduct had occurred;

•  he considered the Applicant’s actions:

constituted misconduct as defined in clause H6.5 of the ACT Public Sector Correctional Officers Enterprise Agreement 2013-2017 (the Agreement)  4,

did not meet his obligations under s.9 of the Public Sector Management Act 1994 (ACT) (the PSM Act), and

to be in breach of the Corrections Management Act 2007 (ACT) (the CM Act), in particular ss.7(c), 138(2) and 139(1)(c) and (d);

•  he was also of the preliminary view that his actions constituted serious misconduct as defined in the Agreement by reference to Regulation 1.07 of the Fair Work Regulations 2009 (Cth); and

•  in accordance with clause H10.1 of the Agreement and s.126 of the PSM Act he considered the termination of his employment to be the appropriate and proportionate disciplinary action to the degree of misconduct.

[12] In his letter, Mr Peach invited the Applicant to provide by 17 December 2018 a written response to the proposed finding of misconduct and the proposed disciplinary action. Attached to Mr Peach’s letter were the reasons for his proposed decision.

[13] The Applicant’s then legal representative responded to Mr Peach’s letter on 28 January 2019 asking Mr Peach to reconsider his proposal to terminate the Applicant’s employment as it would constitute an unfair dismissal within the meaning of s.385 of the Act on that basis that it would be harsh, unjust and/or unreasonable. The grounds relied upon in support of that contention were in similar terms to the Applicant’s submissions in this matter (detailed below).

[14] On 18 February 2019 Mr Peach wrote to the Applicant stating that having considered the material before him, including the Applicant’s response of 28 January 2019, he remained of the view that the termination of his employment was the appropriate and proportionate disciplinary action in relation to his conduct of 18 June 2018. Mr Peach further advised that the Applicant’s employment would cease with effect from the date of the letter, with the Applicant to be paid five weeks’ pay in lieu of notice. 5

[15] As previously mentioned, the Applicant lodged his unfair dismissal application on 7 March 2019.

The Applicant’s case

[16] The Applicant in his submissions contended inter alia that:

•  there was no serious misconduct because he acted in self-defence and in accordance with the Respondent’s protocols on the use of force; and

•  the termination of his employment was harsh, unjust or unreasonable, positing among other things that his dismissal was disproportionate to the misconduct, the seriousness of the conduct was at the lower end, other officers had been treated less harshly for similar conduct and other disciplinary measures would have been more proportionate.

[17] The Applicant’s submissions regarding the various considerations in s.387 of the Act are set out later in this decision.

[18] At the hearing the Applicant summarised the main themes emerging from the evidence in this matter. Among other things the Applicant posited that:

•  the CCTV footage only provided some assistance in this case as it was difficult to see the facial expressions of those involved;

•  it was impossible for the Applicant to maintain a two metre distance between himself and the detainee given the latter’s demeanour and threats;

•  the Applicant needed to respond immediately given his concerns for the welfare of other detainees in the work area;

•  the Applicant’s evidence was that the “bear hug” option (i.e. wrapping his arms around the detainee below the detainee’s shoulders and above his elbows) was the only one available to him and that taking the detainee down was the only way of resolving the situation;

•  no one was really hurt as a result of the incident;

•  the detainee’s statement 6 saw the detainee give the Applicant a thorough apology for the incident and the upset it caused him;

•  there was no evidence that any detainee had made a complaint to the Official Visitor 7 or that the police had been contacted regarding the incident;

•  there were a range of other sanctions available to Mr Peach; and

•  the use of force was necessary, appropriate and successful in all the circumstances.

[19] As to remedy, the Applicant sought reinstatement.

[20] The Applicant gave viva voce evidence. Key aspects of his evidence included that:

•  he had received a commendation in 2013 for saving a detainee’s life;

•  he had been disciplined in 2012 over his use of force;

•  the sanction on that occasion involved counselling and undergoing use of force training again, adding that the training was never provided;

•  as to the incident on 18 June 2018:

the detainee involved was classified as violent,

the detainee did not comply with numerous directions to return to his cell,

he feared for his safety when the detainee threatened to “smash his f…..g head in”, adding that he formed the view that he needed to get closer to the detainee to minimise the risk of a ‘one punch’ injury,

he knew the detainee was about to throw a punch because of the tone of his voice and his eyes, adding that he had seen it a thousand times before,

his last direction to the detainee was to return to his cell or force would be used,

he had to take action because of the detainee’s threats, adding that he put his arms around the detainee’s arms to stop himself from being assaulted, and

he did not throw the detainee to the ground, describing his actions as a controlled take down;

•  there was no other way that he could have dealt with the situation, adding that he did everything according to policy;

•  the option of doing nothing was not available to him as he had a duty of care to all in the area, including the other detainees in their cells;

•  he was not sure if the “bear hug” technique he used was currently a trained technique, though he was taught the technique when he did his initial training;

•  officers were not taught how to deal with a situation such as the incident, adding that de-escalation techniques were not taught;

•  the incident did not involve an inappropriate use of force, reiterating that he believed force had to be used;

•  his biggest mistakes were that he trusted his rapport with the detainee and that he stepped too close to the detainee, adding that when the detainee stopped he was in the wrong spot and that he thought the detainee was going to hit him;

•  before he took the detainee to the ground, the detainee had threatened him;

•  the CCTV footage of the incident did not show the detainee’s eyes and facial expressions;

•  he was occasionally threatened by detainees;

•  while he did not deny that he got too close to the detainee, it could not be assumed that simply putting space between himself and the detainee was going to stop any kind of incident;

•  he did everything to avoid use of force, adding that his last resort was use of force;

•  he did not know what would have happened had he moved backwards (i.e. away from the detainee);

•  there was no evidence on the CCTV footage of movement by the detainee before he took him down;

•  he maintained that the training provide to officers was negligible and insufficient for the work they performed, adding that officers were not trained to deal with people like the detainee;

•  Exhibit 1 suggested that he had undertaken training in de-escalation;

•  since his dismissal he had unsuccessfully searched for work and started his own real estate company but had earned no income to date.

[21] Mr T deposed in his witness statement 8 that on 18 June 2018 the Applicant gave the detainee appropriate directions and warnings and then took appropriate action when there was no compliance and a suggestion of retaliation by the detainee. Mr T also deposed that prior to the incident officers received one or two hours training each year in use of force but that since the incident several days of training were rostered each year. In his oral evidence Mr T described the detainee involved in the incident as unpredictable and as someone who could become highly agitated. As to the incident itself, Mr T attested inter alia that:

•  the detainee had been let out of his cell and at the time was warned by the Applicant to stay away from another detainee’s cell, adding that the detainee ignored the direction and approached the other detainee’s cell;

•  before leaving their office he and the Applicant discussed the situation and agreed that the Applicant would take the lead in moving the detainee away from the other detainee’s cell and back into his own cell;

•  the detainee was given numerous directions to return to his cell;

•  the detainee was semi-compliant until he stopped near another cell and refused to return to his cell;

•  when the detainee stopped, he threatened to “smash” the Applicant and then made numerous other threats;

•  at that stage there was an imminent threat, adding that at the time that he was convinced he saw the detainee’s left hand move though he acknowledged this does not show up on the CCTV footage of the incident;

•  the Applicant then grabbed the detainee with a hugging motion and took him to the ground;

•  the Applicant handled the incident quickly, effectively and a lot more neatly than he would have, adding that he did not see a problem with the Applicant’s actions;

•  he was not charged as a result of the incident;

•  he did not think it necessary to call for extra staff assistance prior to leaving the office as a detainee refusing to return to their cell was a daily occurrence;

•  when the detainee stopped there was not a chance for the Applicant to put much space between himself and the detainee; and

•  the CCTV footage did not indicate the detainee saying anything when he stopped, though his recollection was that the detainee threatened the Applicant.

[22] Mr K stated in his witness statement 9 that he recalled providing the Applicant his initial training in use of force with one of the methods he taught to subdue a difficult detainee being the “bear hug” method. Mr K also stated that he was unaware whether the Applicant had received any refresher or further training in use of force techniques after his initial training. In his oral evidence Mr K attested among other things that:

•  he had trained the Applicant as part of his initial training in various use of force and de-escalation techniques, including verbal, physical, chemical and lethal techniques;

•  he had seen the CCTV footage of the incident and considered the procedure applied by the Applicant to be appropriate;

•  he was not involved in the incident nor in the ensuing investigation;

•  he had viewed the CCTV footage the previous day, i.e. after he had made his statement; and

•  the views reflected in his statement were based on what he had been told by various people, including the Applicant and Mr G.

[23] Mr G in his witness statement 10 deposed that he was the Applicant’s supervisor at the time of the incident, adding that he was surprised at the discipline meted out to the Applicant on this occasion. Mr G further deposed that he believed the Applicant’s use of force on 18 June 2018 was appropriate in the circumstances and necessary to ensure safety and good order. Key aspects of Mr G’s oral evidence included that:

•  the incident involving the Applicant had been considered by the Respondent’s Use of Force Committee of which he is a member, though he was not at the meeting at which the incident was considered;

•  he had viewed the CCTV footage of the incident and did not have any concerns about the way the incident had been handled, describing it as clinical and not resulting in anyone being hurt;

•  the penalty in this case was heavy handed and not appropriate, adding that he did not think the Applicant should be counselled over the incident;

•  he understood that the Applicant gave the detainee about six directions to return to his cell but did not think that a warning was given about the use of force because of the immediate threat to safety;

•  the risk involved in the incident was that the Applicant may be injured by ‘one punch’ thrown by the detainee; and

•  the CCTV footage did not give a sense of the risk involved as the dialogue between the Applicant and detainee was not captured on the footage.

The Respondent’s case

[24] The Respondent submitted inter alia that:

•  the Applicant was dismissed for misconduct related to his use of force against a detainee;

•  the Applicant used unreasonable force and was at fault in doing so because:

his use of force was not a last resort,

he failed to take steps to de-escalate the situation and in fact took steps to escalate it into a confrontation, and

he used an unsanctioned and unsafe technique to subdue the detainee;

•  there were no significant mitigating circumstances, particularly as the Applicant was an experienced employee who had had training in use of force and had previously been found to have engaged in misconduct involving use of force against a detainee;

•  the CM Act required the Director-General to ensure the use of force was always, as far as practicable, a last resort, with the Director-General having established a policy that operationalised the ‘last resort’ principle;

•  the training and development material used by it in its use of force training generally stressed that use of force was to be avoided in the management of incidents and, if necessary, must be reasonable and proportionate to the incident;

•  the Applicant’s actions in this case could not be reconciled with his obligations;

•  the Applicant was afforded fair opportunities to respond to the allegation of misconduct and the proposed sanction;

•  the Applicant’s conduct went beyond the bounds of authorised use of force and therefore contravened lawful and reasonable directions regarding the use of force against detainees; and

•  the conduct for which the Applicant was dismissed was the second occasion on which he had been disciplined for use of force.

[25] At the hearing the Respondent posited that use of force was controlled closely, initially taking the Commission to the relevant provisions of the CM Act regarding use of force, citing ss.7-9 and 137-139 of the CM Act, as well as the principles governing the use of force set out in the Respondent’s relevant policy. 11 The Respondent contended that there had been no conscious attempt to apply the relevant principles in this case. The Respondent further posited that the facts were clear from the CCTV footage, adding that:

•  the Applicant initially approached the detainee with sound cause and appropriately inserted himself between the detainee and the other detainee’s cell door;

•  as the detainee backed away the Applicant moved forward, submitting that as the space between them opened up the Applicant continued to close the gap between them such that the Applicant remained in a position of close physical confrontation and did not provide the detainee with the opportunity to back away and return to his cell;

•  it was critical of the Applicant’s actions in that regard; and

•  at one point there was ample opportunity for the Applicant to allow the space between himself and the detainee to open up and thereby de-escalate the confrontation, highlighting Mr P’s evidence that having a reaction space makes the situation safer for the officer by reducing the risk of an immediate or imminent prospect of attack.

[26] The Respondent submitted that what its procedures, policies and training were looking for was that use of force was a last resort, i.e. there was absolutely no choice or nothing else which could be done but to use force. Other key aspects of the Respondent’s oral submissions included that:

•  it did not accept that there was a threat made by the detainee against the Applicant;

•  the use of force was the Applicant’s fault, noting that the Applicant acknowledged that he was too close to the detainee;

•  use of force ceased to be authorised by law if it was not used as a last resort;

•  it disputed that the Applicant acted in self-defence, adding that the CCTV footage did not show even indirectly that an attack by the detainee was imminent;

•  the CCTV footage did not support a finding that the detainee had said anything to the Applicant immediately prior to being taken down by the Applicant;

•  the “bear hug” technique used by the Applicant was not sanctioned by the Respondent in policy or training, adding that it was only good luck that the detainee did not hit his head on the hard floor as a result of being taken down in this manner;

•  the evidence in this matter did not enable a judgment to be made about the quality of use of force training provided by the Respondent;

•  the Commission could be comfortably satisfied that the misconduct had occurred;

•  the Applicant’s dismissal was warranted given his earlier disciplinary incident and the commonality between the two incidents;

•  there should not be too ready a tolerance of repeat conduct which took the use of force outside what was sanctioned by the law;

•  as to the period between the two use of force disciplinary incidents involving the Applicant, the Applicant was an employee with long experience who repeated the same behaviour twice;

•  dismissal was the appropriate response, adding that the termination of the Applicant’s employment was the only sanction properly applicable in this case; and

•  there was nothing unfair about the Applicant’s dismissal and his application should be dismissed.

[27] On the issue of remedy, the Respondent submitted that should the Commission find the Applicant’s dismissal was unfair, there was little material before regarding the issue of compensation and proposed that the issue could perhaps be the subject of further written submissions.

[28] In his witness statement 12 Mr Peach deposed among other things that:

•  with regard to the incident of 18 June 2018, the Applicant should have ensured a safe distance between himself and the detainee but instead deliberately closed the distance, adding that the Applicant maintained a close physical confrontation even as the detainee retreated backwards;

•  the Applicant’s action was exactly the opposite of what was to be expected of an officer to avoid escalation;

•  by his actions the Applicant allowed himself to become the aggressor in the situation;

•  the Applicant used force by applying a method that was not sanctioned, with only luck preventing an injury;

•  having carefully viewed the CCTV footage a number of times he could not see any basis to conclude the Applicant had acted in self-defence; and

•  he took the following considerations into account in deciding to terminate the Applicant’s employment

circumstances where force is used must be avoided wherever possible,

given the Applicant’s evident disregard for policy, procedure and training it was unsafe that he continued to be employed by the Respondent,

the Applicant could not claim his conduct was partially excused by inexperience given that he had worked for the Respondent for 11 years, and

this was not the first time that the Applicant had been disciplined for similar conduct.

[29] Key aspects of Mr Peach’s evidence included that:

•  he was not aware of the Applicant having previously received a commendation;

•  he did look at the Applicant’s personnel file prior to deciding what disciplinary action to take, adding that given the incident he did not need to look at the Applicant’s entire file;

•  issues which he took into account in deciding what disciplinary action to take included the options available to the Applicant, the Applicant’s failure to adhere to policy and practice, the Applicant being the aggressor as opposed to the victim in the incident, the particular use of force and the nature of force applied and the Applicant’s responses during the investigation;

•  he considered the Applicant’s actions to be at the extreme end of what could be considered an appropriate use of force;

•  the incident was brought to his attention by the Respondent’s Use of Force Committee;

•  he was aware of the detainee’s background;

•  the detainee was agitated at the time of the incident with his level of agitation elevated as a result of the Applicant’s approach;

•  there was no need for the officers (i.e. the Applicant and Mr T) to put themselves in the position they were in, adding that they could have returned to their office and called for assistance and that there was no other person at risk;

•  during the incident the Applicant stepped straight into the detainee’s personal space in an aggressive and confronting manner;

•  officers were trained to deal with recalcitrant detainees;

•  he had considered the possibility that the Applicant had acted in self-defence but concluded that there was no way he could draw such a conclusion where the Applicant placed himself as the aggressor and took the detainee down unnecessarily;

•  at no point during the incident was there a direct or physical threat by the detainee, adding that the Applicant had the opportunity to step back and away from the detainee;

•  the Applicant’s proximity to the detainee took away the reactionary gap and constituted an aggressive move;

•  officers should not meet threats by stepping into a detainee’s space and acting in an aggressive manner;

•  the incident was not an unusual situation in the Respondent’s workplace; and

•  he was aware that the detainee had subsequently apologised to the Applicant.

[30] Mr P in his witness statement 13 made several observations regarding the incident of 18 June 2018 having viewed the CCTV footage. Among other things, Mr P deposed that:

•  the Applicant failed to maintain a safe distance and separation from the detainee, adding that staff were trained in maintaining safe distances from detainees when the situation appeared to be escalating or detainees were non-compliant;

•  the preferred minimum separation from an unarmed detainee was two metres;

•  the Applicant’s failure to maintain separation from the detainee and his moving forward as the detainee moved backwards was likely to escalate the situation;

•  the Applicant did not appear to give the detainee any time to comply with any directions given;

•  use of force training did not include throwing a detainee to the ground in the way shown in the CCTV footage; and

•  he had been unable to see any signs of aggression from the detainee towards the Applicant which warranted the detainee being thrown on the ground.

[31] Key aspects of Mr P’s oral evidence included that:

•  he did not teach the “bear hug” technique;

•  having viewed the CCTV footage of the incident he considered the options which were open to the Applicant were to withdraw and call for assistance and to put distance between himself and the detainee;

•  given the absence of audio he was unable to say from the CCTV footage of the incident whether the detainee was agitated;

•  officers were taught that there should be a reactionary gap distance of preferably two metres between them and a detainee, adding that he did not believe that such a gap created a problem and that such a gap made it more difficult for an aggressor to ‘take a swing’ at an officer;

•  the incident had not been a catalyst for the provision of further training to officers; and

•  officers received between 3-4 hours training annually regarding use of force, with the training an equal mix of classroom based and practical training.

The Statutory framework

[32] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that the Applicant was a person who was protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss.385 and 387 which provide as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[33] There is no dispute that the Applicant was dismissed, so s.385(a) of the Act is satisfied. The Applicant contended that his termination was harsh, unjust or unreasonable, so s.385(b) is relevant. The Respondent is not a small business employer therefore s.385(c) is not relevant. The termination was not a case of redundancy so s.385(d) does not apply. Therefore, in determining whether the Applicant was unfairly dismissed, I must consider whether his dismissal was harsh, unjust or unreasonable as per s.385(b) having regard to the considerations set out in s.387 of the Act.

Was the dismissal harsh, unjust or unreasonable?

Valid reason – s.387(a)

[34] The Respondent must have a valid reason for the Applicant’s dismissal. The reason should be “sound, defensible and well founded” 14 and should not be “capricious, fanciful, spiteful or prejudiced.”15

[35] The issue of whether there was a valid reason for dismissal in circumstances where the dismissal relates to the conduct of an employee was canvassed by a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd (King) 16. In King the Full Bench, drawing on Moore J’s comments in Edwards v Guidice17, stated:

“[23] When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[36] In this case it is not disputed that the conduct occurred. Indeed, it would be difficult to do so given the CCTV footage of the incident. However, what is disputed is whether the conduct amounted to a valid reason for the Applicant’s dismissal. In short, the Applicant contended that he lowered the detainee to the ground in self-defence or, in the alternative, that the use of force was appropriate in the circumstances. On the other hand, the Respondent disputed those contentions, positing among other things that the use of force in this case was the Applicant’s fault and the use of force ceased to be authorised by law if it was not used as a last resort.

[37] A useful starting point in considering whether there was valid reason for the Applicant’s dismissal is an analysis of what the CCTV footage of the incident shows. There are three pieces of CCTV footage each taken from a different angle in the work area. I will outline my observations drawn from viewing each piece of footage.

[38] The first piece of CCTV footage 18 is the longest (3 minutes 59 seconds in duration) and shows that the incident occurred over 52 seconds (from the time the Applicant and Mr T emerged from the office until the detainee was handcuffed). The first piece is taken from the Applicant’s right-hand side as he follows the detainee across the room. More particularly, it shows the detainee initially appearing to talk to another detainee through their cell door with the timeline thereafter as follows:

•  9 sec into the footage (these words are not repeated below but should be taken as read): the detainee walks across the room and appearing to stand in front of another detainee’s cell door;

•  20 sec: the Applicant starts to emerge from the office;

•  26 sec: the Applicant gets between the detainee and the other detainee’s cell door;

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

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

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

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

•  42 sec: Mr T reaches for his radio;

•  52 sec: the detainee is rolled on to his stomach and is not struggling/resisting;

•  1 min 12 sec: additional officers enter the room as the detainee is handcuffed.

[39] The second piece of CCTV footage 19 is the shortest (21 seconds in duration) and shows the detainee moving to the other detainee’s cell door, appearing to talk angrily to the detainee in his cell before appearing to spit at the cell door. The footage also shows the Applicant placing his right hand on the detainee’s chest to move him away from the other detainee’s cell.

[40] The third piece of CCTV footage 20 is 2 minutes 59 seconds in duration and is taken from the other side of the room to the first piece of footage (i.e. from the Applicant’s left-hand side as he follows the detainee across the room) and just above the detainee’s cell door. It commences with the detainee turning around and crossing the room and out of view with the timeline thereafter as follows:

•  25 sec: the detainee moving backward reappears in view;

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

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

•  32 sec: the detainee is standing still and is taken down by the Applicant using the “bear hug” technique;

•  1 min 2 sec: the detainee is face-down on the floor and turns his head to his right and says something to the Applicant;

•  1 min 5 sec: two other officers enter the room (several other officers follow shortly thereafter);

•  1 min 38 sec: the detainee is lifted back up into a standing position and appears to continue to say something to the Applicant;

•  1 min 42 sec: the detainee nods his head to the Applicant and continues to say something to the Applicant;

•  1 min 46 sec: the detainee (handcuffed and held by two other officers) is still saying something to the Applicant and takes a step towards the Applicant – the distance between them is about 1 metre; and

•  1 min 53 sec: the detainee is escorted back into his cell.

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

[42] Sections 138 and 139 of the CM Act which deal with the authorised use of force and the application of force provide as follows:

“138 Authorised use of force

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

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

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

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

(d) to prevent the escape of a detainee;

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

(f) to defend the officer or someone else;

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

(h) anything else prescribed by regulation.

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

139 Application of force

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

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

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

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

(d) uses force, as far as practicable, in a way that reduces the risk of causing death or grievous bodily harm.

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

Example of urgent circumstances

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

[43] In circumstances where, as stated above, the CCTV footage does not support a finding that the Applicant resorted to use of force in self-defence or that his use of force was appropriate in the circumstances, the Applicant’s actions in taking the detainee down are not authorised by the CM Act.

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

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

Notification of the valid reason – s.387(b)

[46] The Applicant submitted that he was notified the incident of 18 June 2018 was being treated as serious misconduct on 21 June 2018 and on 3 December 2018 was notified in writing of the proposed decision to terminate his employment.

[47] The Respondent submitted among other things that on 3 December 2018 the Applicant was informed of the factual findings of the investigation, the proposed finding of misconduct, the proposed sanction of termination of his employment and the reasons for that proposed sanction.

[48] This supports a finding that the Applicant was notified of the reason for his dismissal prior to the dismissal taking effect. Accordingly, this consideration does not point to the Applicant’s dismissal being unfair.

Opportunity to respond related to the capacity or conduct of the person – s.387(c)

[49] The Applicant acknowledged that he was provided an opportunity to respond to the allegations regarding the incident.

[50] The Respondent contended that the Applicant had opportunities to be heard throughout the process of investigation and decision, adding that the Applicant was afforded fair opportunities to respond to the allegation of misconduct and the proposed sanction.

[51] I am satisfied that the Applicant was provided with the opportunity to respond in respect of his conduct. As such, this consideration does not point to the Applicant’s dismissal being unfair.

Unreasonable refusal by the employer to allow a support person – s.387(d)

[52] The Applicant acknowledged that there was no refusal to allow a support person.

[53] The material before the Commission indicates that the Applicant had a support person attend his interview as part of the investigation, while his then legal representative responded on his behalf on 28 January 2019 to Mr Peach’s letter of 3 December 2018. Against that background, this consideration does not support a finding that the Applicant’s dismissal was unfair.

Warnings regarding unsatisfactory performance – s.387(e)

[54] The Applicant submitted that the decision to terminate his employment related to allegations of serious misconduct rather than unsatisfactory performance.

[55] The Applicant was not dismissed due to unsatisfactory performance but rather as a result of his conduct. Accordingly, this consideration is not relevant in this case.

Impact of the size of the employer on the procedures followed – s.387(f)

Absence of dedicated human resources management specialist/expertise on the procedures followed – s.387(g)

[56] The Applicant submitted that the Respondent was a large organisation which employed dedicated human resource specialists, adding that there was no suggestion that these factors would have had an impact on the procedures followed in effecting the dismissal.

[57] The Respondent did not address this consideration in its submissions, though in its Form F3 – Employer Response to Unfair Dismissal Application stated that at the time of the dismissal it had 432 employees. 21

[58] There is nothing before the Commission suggesting that these considerations impacted in any way impacted on the Respondent’s approach to effecting the Applicant’s dismissal. Accordingly, these considerations are not relevant in this case.

Other relevant matters – s.387(h)

[59] The Applicant submitted that the following matters were relevant:

•  his dismissal was disproportionate to the misconduct;

•  his statements about his training should not be given undue weight, adding that his training records substantiated his remarks about the paucity of training he received in the de-escalation of incidents involving detainees and that there did not appear to be any evidence suggesting that he had received updated policies, procedures or guidelines in relation to dealing with assaults by detainees;

•  the seriousness of his conduct was at the lower end for several reasons, including that his use of force was not unprovoked;

•  colleagues who had been found to have used excessive force had not been dismissed, i.e. others were treated less harshly for similar conduct; and

•  other disciplinary measures, e.g. reducing his increment level, would be more proportionate.

[60] The Respondent did not address this consideration in its submissions, though in its submissions it contended that regard should be had to the Applicant having previously been disciplined in respect of his use of force.

[61] While I note the Applicant’s contention regarding training, I do not accept it. For instance, the Applicant referred to the paucity of training he received in the de-escalation of incidents yet at the hearing when presented with material to the contrary acknowledged that he had undertaken training in de-escalation. Further, much of the Applicant’s evidence (including his other witnesses) regarding the issue of training was either self-serving and/or at such a level of generality that it could not support a considered finding that the training provided by the Respondent was in some way deficient. For these reasons, I do not consider this issue relevant.

[62] As to the Applicant’s contention that he had been treated more harshly than others, there was no probative material before the Commission which went to that contention. In the absence of such material, I do not consider this matter relevant.

[63] The Applicant also contended that his conduct was at the lower end of the scale inter alia because his use of force was not unprovoked. I do not agree. As previously stated, the CCTV footage if anything suggests that the Applicant’s use of force was unprovoked. Further, the Applicant’s actions in my view fall at the upper end of the scale when viewed and considered in the context of the following:

•  the CM Act;

•  the Respondent’s policies and procedures;

•  the opportunities during the incident for the Applicant to put space between himself and the detainee;

•  the fact that the Applicant was an experienced officer and the evidence that detainees refusing to return to their cell was an everyday occurrence and that officers were trained to deal with recalcitrant detainees.

[64] For these reasons, I also do not consider that dismissal was disproportionate to the Applicant’s conduct. This in turn does not support a finding that other disciplinary measures would have been more proportionate to the Applicant’s conduct.

[65] While I note that the Applicant had been counselled in 2012 over his use of force, given that that incident occurred over six years ago I am not satisfied that it is a relevant matter in this case.

[66] Against that background, I do not consider that there are any other relevant matters.

Conclusion

[67] Drawing on the above analysis, I find that there was a valid reason for the Applicant’s dismissal related to his conduct, that the Applicant was notified of that reason prior to his dismissal and given the opportunity to respond to that reason, there was no unreasonable refusal by the Respondent to allow the Applicant a support person, there are no other relevant matters in this case and that the remaining criteria in s.387 of the Act are not relevant in this case.

[68] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 22 by McHugh and Gummow JJ as follows:

“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

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

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

Appearances:

D. Perkins for the Applicant.
J. Macken of Counsel for the Respondent.

Hearing Details:

Canberra
2019
November 18 and 19

Printed by authority of the Commonwealth Government Printer

<PR718150>

 1   PR714926

 2   Exhibit 9 at Attachment A

 3   Ibid at Attachment B

 4   AE414649

 5   Form F3 – Employer Response to Unfair Dismissal Application at Attachment B

 6   Exhibit 5

 7   Defined as follows in the CM Act “official visitor means an official visitor for a visitable place under the Official Visitor Act 2012, section 6.”

 8   Exhibit 7

 9   Exhibit 6

 10   Exhibit 8

 11   The policy is not publicly available for security reasons.

 12   Exhibit 9

 13   Exhibit 10

 14   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373

 15   Ibid

 16   Print S4213

 17   (1999) 169 ALR 89 at 92 per Moore J

 18   … [Details withheld] UOF Management Unit 18.06.2018 4.35 to 4.39

 19   UOF Camera 132 … [Details withheld] 18.6.18

 20   UOF Camera 133 … [Details withheld] 18.6.18

 21   Form F3 – Employer Response to Unfair Dismissal Application at Item 1.7

 22   [1995] HCA 24; (1995) 185 CLR 410 at 465