[2020] FWCFB 4529

The attached document replaces the document previously issued with the above code on 4 September 2020.

The title ‘Deputy President’ should instead read ‘Commissioner’ at paragraph [68].  

Associate to Vice President Hatcher.

7 September 2020.  

[2020] FWCFB 4529


Fair Work Act 2009
s.604 - Appeal of decisions

Luke Maxitanis
Department of Justice and Community Safety



Appeal against decision [2020] FWC 2019 of Commissioner Cirkovic at Melbourne on 17 April 2020 in matter number U2019/7624

Introduction and factual background

[1] Luke Maxitanis has lodged an appeal, for which permission to appeal is required, against a decision issued by Commissioner Cirkovic issued on 17 April 2020 1 (decision) in which she dismissed Mr Maxitanis’ application for an unfair dismissal remedy against the Victorian Department of Justice and Community Safety (Department). Mr Maxitanis was employed by the Department as a Prison Officer from 29 July 2014 until he was dismissed effective from 26 June 2019. The dismissal arose from an incident which occurred on 26 April 2018 (incident) in the Metropolitan Remand Centre (MRC) which Mr Maxitanis used force on a prisoner (Prisoner X). Mr Maxitanis’ use of force was found by the Department to be, among other things, not reasonable and/or unnecessary in the circumstances. The Commissioner found in the decision that Mr Maxitanis had used unreasonable and unnecessary force in the incident, that this constituted a valid reason for dismissal, that Mr Maxitanis was given a proper opportunity to respond to the allegation of misconduct arising from the incident, that the dismissal was not disproportionate as a penalty to his misconduct, that any procedural unfairness associated with the delay in the investigation of the incident was outweighed by the gravity of Mr Maxitanis’ misconduct, and that the dismissal was not harsh, unjust or unreasonable. In his notice of appeal, Mr Maxitanis contends that the Commissioner:

(1) erred in finding that there was a valid reason for dismissal;

(2) took into account an irrelevant consideration by engaging in a detailed analysis of Mr Maxitanis’ performance history;

(3) erred in assessing proportionality by reference to the performance history;

(4) erred in concluding that Mr Maxitanis was afforded procedural fairness;

(5) failed to attach any or sufficient weight to her finding that the Department had failed to comply with clause 21 of the Victorian Public Service Agreement 2016 (Agreement);

(6) erred in failing to properly consider the implications of the termination of Mr Maxitanis; and

(7) failed to take into account various deficiencies in the investigation process,

and thereby erred in concluding that the dismissal was not harsh, unjust or unreasonable.

[2] It is necessary to set out the factual background in some detail. Most of the facts were uncontroversial and can be described in a neutral fashion.

[3] Mr Maxitanis commenced full-time employment with the Department on 10 June 2014 as a prison officer at the MRC. Upon commencement, he underwent seven weeks of pre-service training which, among other things, covered the Department’s “Central Use of Force Philosophy”, its procedures to be applied in various types of incidents and emergencies, and tactical options (TACOPS) training. xxx xxxxx xxxxxxxx xxx xxxxxxxx xxxx xxx xxxx xxx xxxxxxxx xxxxxxxxxxx xxx xxxxxxxx xxxxxxxxxxx xxxxxxxx xxxxxxxxxxxx xxx xxx xx xxxxx.

[4] The “Central Use of Force Philosophyxx xxx xxx xx xxxxxxxxx xxx xx xxx xxxxxx xxxxxxxxxxxxxx xxxxxxxxxxx xxx xxxx x xxx xx xxxxx xxxxxxxxx xxxxxxxx x xxxxxxxxxxx xxxxxxxxxxx xxxxxxxxx xxx xxxxxxxxxx (DCI 1.13) as follows:

“2.0 Central Use of Force Philosophy

Reasonable force shall only be used in accordance with the law, where a situation cannot be resolved without reasonable force, and then only for the minimum time needed to reach resolution. Where force is used, it must be to ensure that no prisoner, officer, staff or member of the community is put at unnecessary risk. In every situation where force is used, a situational management approach will be employed to assess the tactical option used in order to minimise the risk of injury to all persons.”

[5] DCI 1.13 is intended to give effect to the legal framework in which prison officers operate. This framework includes s 23(2) of the Corrections Act 1986 (Vic), which provides that a prison officer may where necessary use reasonable force to compel a prisoner to obey an order given by the prison officer or by another officer, and s 22(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic), which provides that all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

[6] Mr Maxitanis was also required to comply with the Code of Conduct for the Victorian Public Sector (Code). This contains generic obligations upon public sector employees to avoid conduct which might adversely affect their standing as a public official or bring the public sector employer into disrepute (clause 3.9), make decisions and take actions within the scope of their authority that are lawful and consistent with legislation and government policy (clause 5.2), be aware of and comply with legislation relevant to their duties (clause 5.6), and act in a manner that is consistent with the Charter of Human Rights and Responsibilities Act (clause 8.3).

[7] Mr Maxitanis’ duties at the MRC required him to work when required at the Chilwell Unit. This unit is for prisoners with an intellectual disability, acquired brain injury, significant psychiatric disorder, suicidal or self-harming behaviour or other significant medical conditions.

[8] The facts of the incident on 26 April 2018 may briefly be described in neutral terms as follows. On 26 April 2018, Mr Maxitanis was on duty in the Chilwell Unit together (relevantly) with Prison Officer Frederick Wallace (PO Wallace). He observed Prisoner X exhibiting uncooperative behaviour towards PO Wallace after PO Wallace had directed the prisoner to go to a holding cell. Mr Maxitanis intervened and directed Prisoner X to comply with PO Wallace’s direction. As this was occurring, Prisoner X was walking away with Mr Maxitanis walking somewhat behind him. Prisoner X refused to comply with the direction, and then advanced towards Mr Maxitanis. Mr Maxitanis initially reacted by stepping backwards. Prisoner X continued to advance towards Mr Maxitanis, and Mr Maxitanis then took hold of Prisoner X and brought him to the floor. Mr Maxitanis subdued Prisoner X, with the assistance of PO Wallace and other prison officers in the vicinity, and handcuffed Prisoner X. Prisoner X was then escorted to the holding cell.

[9] The incident was captured on CCTV from two different angles. For the purpose of the proceedings before the Commissioner, Mr Maxitanis provided a chronology of what may be observed on the CCTV footage which, as will be explained below, was accepted by the Commissioner as accurate and therefore may be treated as non-controversial for the purpose of this appeal. The chronology is (with some minor paraphrasing) as follows:

[10] Immediately after the incident, and in accordance with standard procedure, Mr Maxitanis and PO Wallace prepared reports about the incident. The following day, Mr Maxitanis was advised that there would be an investigation into the incident, and he was placed on alternative duties in areas of the MRC which did not involve direct contact with prisoners. On 2 May 2018, the Department notified Mr Maxitanis in writing of the allegation that he had used force against Prisoner X that was not reasonable and/or necessary, and that there would be an “initial assessment” of the incident in accordance with clause 21 of the Victorian Public Service Enterprise Agreement 2016 (Agreement) to determine if an investigation should proceed into the alleged misconduct. Mr Maxitanis was reminded of his obligation to comply with the Code, Department policies and DCI 1.13.

[11] On 10 July 2018, Mr Maxitanis was sent correspondence from the Department notifying him that an investigation had been authorised into an allegation of misconduct that had been made against him, and that the investigation would be conducted in accordance with clause 21 of the Agreement. The allegation was as follows:

“It is alleged that on or around 26 April 2018 at the Metropolitan Remand Centre (MRC), you used force against a prisoner in circumstances where the use of force was not reasonable and/or where the situation could be resolved without reasonable force and/or where the force used was not the minimum necessary to achieve control and/or you engaged in conduct that could adversely affect your standing as a public official or which may bring the department or the public sector into disrepute and/or you failed to act consistently with relevant legislation and government policy and/or you failed to comply with legislation relevant to the performance of your duties (being the Corrections Act 1988 (Vic)) and/or failed to act in a manner that is consistent with the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter).


On or around 26 April 2018 at the MRC, whilst walking through the Dayroom of Chillwell Unit, B Side, you were engaged in a discussion with [Prisoner X]. At one point, [Prisoner X] stopped walking, turned around to face you, and began to advance towards you. In response, you took a few steps back, and then reached towards [Prisoner X] and took hold of the back of his head with both hands. You then swiftly brought [Prisoner X] to the ground.

Your use of force against [Prisoner X] on this occasion was unreasonable and/or unnecessary.”

[12] The letter went on to say that the conduct alleged may, if substantiated, be a breach of LOP 1.13, 2 DCI 1.13, clauses 3.9, 5.2, 5.6 and 8.3 of the Code, and the Misconduct Policy, and may also constitute misconduct under clause 21.3 of the Agreement. It also confirmed that Mr Maxitanis would remain on alternative duties not involving contact with prisoners during the investigation.

[13] Shortly after he received this letter, Mr Maxitanis was shown the CCTV footage of the incident for the first time. He was not given a copy of the footage, nor was it shown to him again at any time during the investigation.

[14] From July 2018, Mr Maxitanis commenced training for the role of Control Room Operator, and from that time he regularly worked in the control room on a relief basis. From 20 January 2019, he was rostered to work permanent shifts as a Control Room Operator on a full-time basis.

[15] Mr Maxitanis was interviewed about the incident as part of the investigation on 20 November 2018. On 15 February 2019, Mr Maxitanis was required to attend a meeting at which he was provided with a letter informing him that the allegation was sustained and that a recommendation would be made to the Secretary of the Department that he be dismissed. On 26 June 2019, Mr Maxitanis was required to attend a meeting at which he was informed that the Secretary of the Department had terminated his employment on the ground of misconduct.

[16] After the date of the incident and prior to his dismissal, Mr Maxitanis made a number of official complaints through the Department’s Accident Incident Reporting System (AIRS) concerning, among other things, the excessive delay in the conduct of the investigation process and the effect this was having on his mental health.

Evidence and other material concerning the incident

[17] In the proceedings before the Commissioner, the parties filed a schedule of agreed and disputed facts. The facts set out in this schedule relevant to the incident which were agreed, or treated by the Commissioner as not seriously in dispute, 3 were as follows:

(1) The incident occurred in the Chilwell Unit, a unit for prisoners that have intellectual disabilities and cognitive impairments.

(2) Mr Maxitanis knew Prisoner X sufficiently well enough to know that he had a history of being volatile and aggressive.

(3) Prisoner X presented as an overweight, middle aged man with psychiatric issues. 

(4) Prisoner X did not follow PO Wallace’s direction. Mr Maxitanis then directed him to return to his cell. Prisoner X disobeyed that direction.

(5) There was a verbal altercation between Mr Maxitanis and Prisoner X. 

(6) Mr Maxitanis followed Prisoner X. Prisoner X turned around and went towards Mr Maxitanis. Mr Maxitanis then applied force.

(7) The Department had in place a procedural regime for the use of force.

(8) The Department’s procedure required Mr Maxitanis to use reasonable force, only where necessary, and only in accordance with law. The use of force employed was to be such that the prisoner was not subject to unnecessary risk.

(8) A prison officer may, where necessary, use reasonable force to compel a prisoner to obey an order.

(9) Mr Maxitanis had been trained in tactical operations on induction and taught to use a variety of techniques, including non-contact force options, negotiation, communication and disengagement. 

(10) Mr Maxitanis received refresher training in 2016, 2017 and 2018. 

(11) Mr Maxitanis was expected to use these techniques if and when force is used in the prison.

(12) Mr Maxitanis felt he excelled at his training and regards the application of the procedures concerning the use of force in his employment as being of absolute importance. 

[18] In addition and, apart from the CCTV footage, there was a substantial amount of evidence concerning the incident which is not referred to in the decision. Firstly, in his statement of evidence, Mr Maxitanis described the incident, as well as a precursor incident involving Prisoner X, as follows:

“18. On 9 August 2017 Rosa Rodrigues…- Prison Officer telephoned me and asked me to report to the Prison Education to help “settle down” a particular prisoner (Prisoner X). Prisoner X suffers from a psychiatric illness and has a history of aggressive behaviour towards prison staff. Ms Rodrigues was apprehensive about engaging with Prisoner X who was behaving in a hostile manner and rather than following protocol to deal with the prisoner, Ms Rodrigues instead burdened me with the responsibility of de-escalating the situation. This frequently occurred throughout my employment with the Department and I was often forced to take on responsibilities of other Prison Officers who had difficulty handling aggressive prisoners. I was able to effectively de- escalate and resolve the situation with Prisoner X without a physical altercation. I subsequently prepared a memorandum to the Remand Centre’s General Manager in relation to this incident.

. . . .

19. On 26 April I was again required to deal with Prisoner X who was acting in an aggressive manner towards Frederick Wallace… - Prison Officer in the Chilwell Unit after Mr Wallace had directed him to go into a holding cell. I directed Prisoner X to go to the unit’s holding cell, however he refused to comply and became more agitated. Prisoner X moved towards me and I took a step back and again directed Prisoner X to go to the holding cell, or alternatively to return to his own cell.  Prisoner X again did not comply and began advancing towards me. I recognised Prisoner X’s body language as indicating that he posed a threat unlike the previous non-physical confrontation of 9 August 2017. In line with the overarching requirement of using reasonable force, I subdued Prisoner X with the assistance of Mr Wallace and called a ‘Code Blue’ (Code Blue is the calling code for when a Prisoner Office requires urgent assistance) using his radio. In doing so, I attempted to take hold of Prisoner X by the shoulders but I may have inadvertently made contact with the back of Prisoner X’s neck. Once Prisoner X had been subdued, I handcuffed him and he was subsequently escorted to the holding cell in accordance with the Department’s ‘Isolate, contain, evacuate’ principles. A further escalation of the situation was avoided and Prisoner X did not sustain any injuries, although in accordance with policy he was offered medical attention which he refused.”

[19] In his oral evidence before the Commissioner, Mr Maxitanis was taken through the CCTV footage by his legal representative and asked to describe, from his perspective, what was shown on that footage. He gave the following evidence:

“That's 3.13 and 31 seconds?---Okay.  So just to give the Commissioner accurate information on what's occurred thus far, I entered the unit at approximately 10 past 3 pm.  Again, I was on operational support duties.  I was escorting, on this occasion, the pharmaceutical technician, or nurse, to dispense medications to prisoners in the Chilwell Unit at MRC.  The process, long story short, involves a prisoner goes get's the card, comes up, identifies themselves to myself and the officer that's rostered in that unit, as well as the pharmaceutical technician, to ensure they get the correct medication.  The prisoner in question complied with this process.  He was quite calm when he came up, collected his medication.  I actually greeted him, because I've managed him effectively and dealt with him in the past, with no issue.  Then he steps away from the medication line and that's when the incident beings.

. . . .

Okay?---So what's occurred from there is Mr Wallace, my colleague, has begun issuing the meals, in accordance with the processes and the procedures, whereby you get the prisoner to state their name and their cell number.  That's not to give them a hard time, that's to ensure that the correct prisoner gets the correct meal...

. . . .

Okay, if we might move forward?---So Mr Wallace has followed that process, with the prisoner in question, and he's immediately escalated for some reason.  He's immediately escalated. I've heard it from where I was.  I asked the officer I was conducting medication issue with to hold the line.  I believe my exact words were, "Hold the line because this is going to go pear shaped, I've got to go help Freddy out", which is standard practice in situations such as this.  If you see one officer's dealing with an aggressive prisoner, by themselves, it's always good practice for an officer, who is not the immediate target of that prisoner's aggression and anger to go and de-escalate the situation.  That's the practice I was following on the day.

Okay, if we can move forward with the video? .... Probably keep it rolling until 3.14.20.  So we'll just let it go.

THE WITNESS:  I'm not sure, at this point, if I'm already under there trying to calm him down.  That's where I've moved over to assist.  Mr Wallace has already issued the direction to move to the holding cell or his cell, he's not compliant.  Around here he's pushed past me.  I was able to step out of his way.  His aggression - - -

MR MILLAR:  Just stop there?---So I'm talking to him there, as you can see.  He was still very - - -

Sorry, who are you talking to at that point?---I'm talking to the prisoner in question, apologies.

The prisoner?---Yes.  So I'm communicating with him there, trying to get him to comply with Mr Wallace's direction.  I've restated it, I'm following the process, I'm trying to calm him down.  At that point he's gone to push past me.  I was able to step out of the way.  I didn't feel threatened at that point.  I wasn't in fear for my safety at that point, or anything like that.

We might just move through then where he pushes past you?---Yes.  So I've stepped out of the way and this is where I've said to him ...  My exact words were, "Prisoner name, it's gone too far now, you either need to go to your cell or the holding cell to cool off.  It's your choice, I don't mind, but we need to cool off, yeah?"  And at that stage he's turned, thrown his hand up in the air, as you see on the camera there, and yelled as loud as he can, "I'm not going to the fucking holding cell".  He's begun to advance towards me aggressively.  I realised this wasn't another case of he just wants to get past me.  This is where I immediately began to fear for my safety.

Just pausing at that point, we can see the left foot of the prisoner is slightly blurred there, what's happening?---He's beginning to step into me at which point I'm beginning to step back, to try and create some distance.  Unfortunately he was moving forward a lot quicker than I can move backwards.  He continues to step in, I couldn't get any further away.  To push him, as has been suggested to me by the department, to push him to the left would have pushed him onto a female staff member half his size.  And to push him to the right would have pushed him onto those prisoners there or to my colleague, Mr Wallace.  Both those actions would have been completely negligent.

MR MILLAR:  Maybe if we can go back to about 25 seconds, 3.14.25, or thereabout?---Yes, so you can see just - - -

We'll just let it play?---He's overstepped me, he's stepped him and then I've restrained him to the ground.  During the course of that I'm trying to keep his hands from striking my face, and I've called for assistance.  Then, from there, it just becomes a matter of applying the handcuffs and then securing him in the holding cell.  The force was only used for the minimal amount of time necessary to secure him and de-escalate the incident.” 4

[20] Mr Maxitanis was the subject of extensive cross-examination in relation to the incident. In relation to Prisoner X, he gave the following evidence:

“The prisoner himself, he was intellectually disabled?---I wasn't aware of that fact at the time.  All I knew was that he had a psychiatric condition of some description.  I've never seen his medical records, I've never seen his medical records, I've never been formally briefed in relation to him, I've never had any training in psychiatric illness.

But you have a rapport with him, which was your evidence, so - - - ?---I believed I did.

Yes.  And so did he present as someone who had an intellectual problem?---He presented as someone who had some form of psychiatric issue.  Yes, absolutely.

He was overweight?---I would have to agree with that, yes.

Middle aged?---I don't know how old he was, but he appeared middle aged.

Clearly that doesn't work out, does he?---Obviously not, no.

And so physically speaking, not an imposing person, is he?---He can be quite imposing, this individual, if you've ever dealt with him.

All right?---Highly volatile, highly aggressive.  Can flip the switch at a moment's notice.  You just never know which way he's going to go.  Highly unpredictable.

So not physically imposing?---Due to his weight, he's heavier than me, he was physically imposing during this incident, absolutely.

All right.  He is, rather, an intellectually disabled, overweight man.  Is that a fair description?---Again, I don't know anything about intellectual disability.  As I stated, I've only got, you know, the knowledge that he's got some form of psychiatric illness.  Any other details would be pure hearsay.  The only other thing I've heard about him is that he's in for violence-related offences.  But again I don't know that for a fact, I haven't read his file.  All I can do is judge a prisoner on - and judge the situation by the way they present and by my previous interactions with them, if any.

He presents as an overweight, middle aged man with a psychiatric issue.  Do you accept that?---Yes.  Along with - - -

Okay.  Thank you?---  - - - highly aggressive and threatening.” 5

[21] Mr Maxitanis was also cross-examined about what alternatives might have been available to him other than the use of force on Prisoner X:

“He then comes towards you - if you could rewind it?---Advances aggressively.

So your position is that he advances aggressively towards you?---Absolutely.

He does take two steps towards you.  Do you at least accept that?---At least.

And consistent with your training - just pause there - there were noncontact options open to you at this point, wasn't there?---No, not at this stage, no.  The situation was far too fluid and far too dynamic.

THE COMMISSIONER:  Could you not have moved away there?  There seems to be, at least on what I'm seeing on the footage, ample space?---Unfortunately not, Commissioner.  As you saw the first time, when I was able to step out of his way, I didn't detect any threat or aggression towards, me, he was simply angry.  At this point is when I've perceived a threat, detected aggression, and I was of the honest belief that he was stepping in to assault me.  To try and step out of the way, he would have just continued coming.  It's not really something I can go into.  This was a split-second decision.  I had one of the most aggressive prisoners known to us coming at me.  I feared for my safety, and then I followed what I was trained to do.  You fear for your safety, and then you follow what you have to do to de-escalate and end the situation

MR HOWARD:  ...You could have yelled out?---No.

You could have put your hands out?---No.  No time, unfortunately.

You could have called for support from your colleagues at the counter and behind the stalls?---My colleagues had full view of what was occurring.

. . . .

You could have evacuated, consistent with xxx - - - ?---No, I couldn't.

No?---No, I couldn't, unfortunately.  This was used as a last resort.  This was pure use of force as a last resort, self-defence.  I had no other options available to me.  The situation was far too fluid and far too dynamic.  He came at me far too quickly to create enough space, or to get away, or to call for help.  I was only able to call the code - I had to call the code myself once he was on the ground.  I was able to keep his hands away from striking me and able to call the code blue, fortunately.

What you did next was grabbed him by the neck and thrust him face-first into the ground?---No, I absolutely did not.

Okay.  That's the answer.  Okay.  That's not consistent with your tactical options, is it?---What's not?  The actual restraint - - -

. . . .

No tactical options procedure requires you to grab a prison officer's neck - a prisoner's neck?---No.  No, there isn't.

The most obvious tactical operations procedure, which the Commission was asking you about, would have been a xxx xx xxxxxxxx xxxxxxxxx xxxxxx?---Absolutely not.

And that would have involved placing two hands on the prisoner's chest and pushing him back, to create a reactionary gap?---No, that's not the way we were taught.

And he was coming towards you, so you could use his - the gravity to push him away from you in that - away from you to the side.  Do you accept that?---I believe what you're referring to is a xxxxx xxx xxxxxxxx, and it wasn't an option, for reasons I previously stated under cross-examination by Mr Millar.

So you could have used a check and redirect.  Do you accept that?---No.

And a xxxxx xxx xxxxxxxx would be xxxxxxx xxxx xxxxx xx xxx xxxxxx xxxxxxxx xx xxxxxxxx xxx xxxxxxxx xx xxxxxx xxxxxx xxxxxxx xxxx xx x xx xxxxxx xxxxx?---No. 

That would have sent him into Mr Wallace, and the other side would have sent him into Ms Gellatly.  And to be honest, I didn't consider doing that.  It wasn't an option - - -

. . . .

So you could have - xxxxx xxxx xxxxxxx xxx xx xxxxxxxx xxxxxxxxxx xxxxxxx xxx xxx xxxxx xxx xxxxxxxxx xxx xxxxx xxxx xxxx x xxxxxxxx xxx xxx xxxxxxxxx - - - ?---No, I can't.

 - - - do you accept that?---You couldn't, because xxx xxxxxxxx xxx xxx xxxxxxxxx xx xxxxxxxxx xxxxxxxxx xxxx xxx xxxx xx xxx xxxx xx xxx xxxxxxxx.  As I stated in the audio interview, and the investigators agreed with, I had no suitable take-down option for when a prisoner is coming at me for a direct front-on assault to strike, I believe - and I said this in the interview - would have almost certainly caused injury to the prisoner.  If I had conducted x xxxxx xxxx xxxxx xx xxxx xxxxxxxxxx xx x xxxxx xxxx xxxxxx.” 6

[22] PO Wallace described the incident in a statement of evidence he made for the proceedings below as follows:

“8. On 26 April 2018 I was rostered to work an ‘Extended Day’ (ED) shift in the Remand Centre’s Chilwell Unit from 12:30pm to 8:30pm.

9. At approximately 3:15pm I began distributing meals from the kitchen in the Chilwell Unit. As each prisoner approached to collect their meal, I asked for their their name and cell number to ensure that each prisoner was only collecting one mean and that any special dietary requirements were met.

10. In the course of distributing meals, I asked a prisoner (Prisoner X) to provide a name and cell number. Prisoner X responded to the effect of “Cell number two and you don’t need to know my fucking name.” I advised Prisoner X that if he wanted a meal he was required to provide me with his name and cell number. Prisoner X refused to provide his name and cell number and continued to be verbally abusive and yell profanities. I did not provide Prisoner X with a meal and advised that he leave and return to collect his mean when he was ready to provide me with his name and cell number. Prisoner X became increasingly hostile and I therefore directed him to go to the holding cell. Prisoner X was not compliant.

11. At this point, Mr Maxitanis approached to offer assistance after observing Prisoner X’s aggressive behaviour. He directed Prisoner X to comply with my instruction to go to the holding cell. Prisoner X again refused to comply and stepped toward Mr Maxitanis in an aggressive manner. I observed Prisoner X stomping his feet while continuing to yell profanities. In an attempt to de-escalate the situation, Mr Maxitanis took a step back and directed Prisoner X to return to his own cell (rather than the holding cell). Prisoner X then began walking in the direction of his cell but turned around and started moving towards Mr Maxitanis in an aggressivemanner. Mr Maxitanis and I then subdued Prisoner X to the ground using force. I assisted in placing Prisoner X into a leg lock while Mr Maxitanis attempted to grab Prisoner X by the shirt collar and trip him to the ground. Mr Maxitanis, with the assistance of other Prison Officers who had arrived to assist, then handcuffed Prisoner X and escorted him to the holding cell.

. . . . 

13. I perceived the force used by Mr Maxitanis to have been reasonable and not disproportionate in light of the aggression exhibited by Prisoner X.”

[23]  The above evidence was not the subject of any substantive challenge in cross-examination.

[24] For the Department, Malcolm Ridsdale, the Supervisor for Training – Security and Emergency Services Group, gave evidence about the Tactical Options (Tac Ops) training given to prison officers. He said that at the MRC, Tac Ops training generally runs over 3-4 days, and the intention is that there is an 8-hour refresher training course for Prison Officers approximately every 12 months. He gave the following evidence in his statement of evidence concerning Tac Ops training:

“9.  The Tac Ops training equips a prison officer with tools to control the situation using non-force options xxxxx xxxxxxx xxx xxxxxx xxxxxxxxxxxxx xxxxxxxx xxxxxxxxx xxxxxx are the primary method of response. If force is required to be used, the Tac Ops training teaches the officer to minimise the amount of force used to gain control of the prisoner.

10. The level of force a prison officer is meant to use is dictated by the prisoner's actions.

. . . .

12. The Tac Ops training provides prison officers with a range of options with which to respond to prisoners. For example, non-contact force options include:

12.1 xxxxxxxxx xxxxxxxx xxxxxxxxxx x xxxxx xxxxxxxx xxxxxxxxxx xxxxxxxxxx xx xxxxxxxxxx xxx xxxxxxxx xx x xxxx xxxxxxxx xxxx xx xxxxxxx x xxxxx xxx

12.2 xxxxxxx xxxxxxxx x xxxxx xxxxxxxx xxx xxxxxx xxxxxxx xxxxxxxxxxx xxxx xxx xxxxxxxx xx xx xxxxxxxxxxxxx xxx xxxxxxxxxx xxxxxx xx xxxxxxx xxxxxxxxxxxx xxxx xxxxxxxx xxxxxxxx xxxxxx xxxxxxxx xx xxx xxxxx xx x xxxxxxxxxx xxx xxxxxxx xxxxxx xxx xxxx xxxx xxx xxxxxxxxxxx xxxx xxxxxxxx xxxxxxx x xxxxxxxxx

12.3 xxxxxxxxxxx xxxxxx xxxxxxxx xxxxx xxxxxxxxxxx xxxxxxxxxxxxx xxxxxx xx xxxxxx xxx xxxxxxxx xxx xxxxxxx xxxxx xxxxxxxxxxx;

12.4 xxxxxxxxxxxxx x xxxxx xxxxxxxx xxxxxxxxxx xxx xxxxxxxx xxxx xxxxx x xxxxxxxxx xx xxxxxxx xxx xx xxxxxxxx

13. xxxxxxx xxxxxxxx xxxxx xxx xxxxxxx xx xx xxxx xxxx xxx xxxxx xx xxxxxx xx xxxxxx xxxx xxxxxxx xxxxxxx xxx xxxxxxxxxx

13.1 xxxxx xxxx xxxxxxxx

13.2 xxxxxx xxx xxxxxxxx xxxx xxxxx xxx xxxxx

13.3 xxxxxxxxxxx xxx xxxxxxxxx xxxxx xxx xxxxx

13.4 xxxxxxxxx xxxxxxxx xxx

13.5 xxxxxxx xxx xxxxxx xxx xxxxxxxx xxxxxxxxx

14. When training in Tac Ops training, the underlying message for prison officers is that the use of force is a last resort, when no other options are available. In addition, use of force is not meant to result in injury to the prisoner but should be reasonable and proportionate to stop or prevent an indictable offence from happening.”

[25] Mr Ridsdale also gave evidence that, for the purpose of the Department’s investigation of the allegation of misconduct against Mr Maxitanis, he was asked to review the CCTV footage of the incident. He gave the following evidence about this in his witness statement:

“19. Upon reviewing the CCTV footage, I recall thinking that it was clear that the Applicant's use of force was not consistent with any Tac Ops training manoeuvres from the manual. The level of force used by the Applicant in this instance led to the escalation of the incident.

20. Based on my experience to date, there were other non-contact options which were included as part of the Tac Ops training package that the Applicant could have adopted (but did not), before taking down the prisoner including:

20.1 xxxxxxxx x xxxxxxxxxxx xxx x xxxxx x xxxxxxxxx xxxxxx xxxx xxxx xxx xxxxxxx xxxx xxxx xx xxxxx xxx xxxxx xxxxxx xxxxxx xxxx xxxx xxx xxxxxxxx (this was achievable given there was space on either side of the Applicant and behind him); and

20.2 xxxxxxxxxxxxx xxxxxx xx xxxxxxxxxxx xxx xxxxxxxx. Although there is no sound in the CCTV, the footage clearly shows the Applicant talking with the prisoner during the incident. The prisoner was walking in the direction which had been directed but then suddenly turned around and began to walk toward the Applicant.

21. If these non-contact techniques did not work, and the prisoner refused to comply with the Applicant, the Applicant would have been entitled to use a degree of physical force provided it was not disproportionate to the level of threat presented by the prisoner.

22. After reviewing the CCTV footage, I consider that an appropriate physical tactic would have been a xxx xxxx xx xxx xxxx xxxxxxxxx xxxxxxx x xxxxx xxx xxxxxxxxx xx x xxxxxxxxx xxx xxx xxxx xxxx (Manoeuvres). Each of these Manoeuvres can be summarised as follows:

22.1 x xxx xx xxx xxxx xxxxxxxxx xxxxxx xxxxxxxx xxxxxxx xxx xx xxx xxxxx xx xxx xxxxxxxxxx xxxxx xxx xxxxxxx xxxx xxxx xx xxxxxx x xxxxxxxxxxx xxxx

22.2 x xxxxx xxx xxxxxxxxx xx xxxx xxxx x xxxxxxxx xx xxxxxx xxxxxxxx xxxxxxx xx xxxxxxxx xx xxxxxxxx xxxxxxx x xxxx xx xxx xxxxxxxxxx xxxxx xx xxxx xxxxx xxxxxxxxxx xxxxxxxxx xxx xx x xx xxxxxx xxxxxx xxx xxxx xxxxxx xxx xxxxxxxx xx x xxxxxxxxx xxxxxxxxx xx xxxxxxx xxxx xxxx x xxxx xx xxx xxxxxxxx

22.3 x xxxxxxxxx xxx xxx xxxx xxxx xx xxxx xxxx xxxxxxxx xx xxx xxxx xx x xxxxxxxxx xx xxxxxxxx xxxxxxx xxx xxxxxxxxxx xxx xx xxxx xxx xxxxx xx xxxxxx xxx xxxx xxx xxxxxx xx xxxxxxx xxx xxxx xxxxxxxx xxxx xx xxx xxxxxxx

[26] Mr John Nesci, the Senior Operations Manager at the MRC, also gave evidence of his opinion of the incident upon review of the CCTV footage. Like Mr Ridsdale, Mr Nesci gave evidence that, in accordance with training procedure, Mr Maxitanis should have first communicated with Prisoner X to de-escalate the situation and restore calm. Mr Nesci said that the CCTV footage did not indicate that Mr Maxitanis used effective communication techniques with Prisoner X. He also said that Mr Maxitanis could have used the principles of xxxxxxxxx xxxxxxx xxx xxxxxxxxx and, if non-contact measures failed, it would then have been appropriate to use reasonable force such as a xxx xxxx xxxxxxxxx xxxxxx xx x xxxxx xxx xxxxxx. If the behaviour had continued to escalate after this, Mr Maxitanis could have sought the assistance of other officers and performed a xxx xxx xxx xxxx xxxx of Prisoner X. Mr Nesci described the situation facing Mr Maxitanis as “relatively unthreatening” and his take down of Prisoner X as “extreme”.

[27] Mr Ivan Calder, the Assistant Commissioner - Custodial Services, also gave evidence about, among other things, his opinion of the incident based upon his review of the CCTV footage. He said that upon seeing the footage he formed a concern about the type of tactic used by Mr Maxitanis, which he had not seen before and which he considered caused a risk of harm. His view was that Mr Maxitanis did not use all other non-contact options open to him before using force, and the force used was not the minimum necessary to achieve control. He considered that Mr Maxitanis could have responded to Prisoner X by retreating or stepping away, putting his hands in front of him to push Prisoner X away, moving around Prisoner X or asking for help from the prison officers surrounding him.

The decision

[28] In her decision, the Commissioner first considered whether there was a valid reason for the dismissal pursuant to s 387(a) of the FW Act. The Commissioner set out the legal principles applicable to this consideration, about which there is no controversy, and then turned to the specific details of the incident. The Commissioner recited the allegation made by the Department against Mr Maxitanis in relation to the incident and the parties’ submissions, and then set out some of the factual propositions that had been agreed between the parties, the evidence which was not the subject of serious challenge by the parties and Mr Maxitanis’ chronology of the CCTV footage.

[29] The Commissioner then proceeded to set out her findings regarding the allegation concerning the incident. She first recorded that she agreed with Mr Maxitanis’ chronology, 7 and then noted that the parties did not dispute that Mr Maxitanis was trained in various techniques not involving force that he was expected to use when faced with prisoner confrontations. The Commissioner also acknowledged that the Department had conceded in the proceedings that tactical options and techniques not provided for in its procedures are not specifically prohibited so long as they are reasonable. The Commissioner then made the following findings about the incident (footnotes omitted):

“[39] From the footage, it appears to me that Prisoner X is walking with a slightly unsteady gait. The pace at which the prisoner approached the Applicant was not swift, and the movement of the prisoner’s arms appears to be only in the normal action of walking. In my view, there was ample room and time for the Applicant to move further away or take a course of action other than the one that he took. I do not accept that he was acting in self-defence and the material before me does not support a conclusion that he feared for his safety and the safety of his colleagues. The footage shows that Ms Gellaty was some distance away from Prisoner X and the Applicant, such that a conclusion of an imminent threat to her safety cannot be supported. It follows that I also do not accept the Applicant’s proposition that had he adopted another technique his colleagues would have been placed at risk. The footage in my view supports the conclusion that the takedown of Prisoner X by the Applicant was swift and unnecessarily forceful. I do not accept that the Applicant’s response to Prisoner X’s failure to follow a lawful instruction was reasonable and necessary.

[40] On the balance of probabilities, I am satisfied that the Applicant used unreasonable and unnecessary force in responding to the incident of 26 April 2018.

[41] On the basis of the above, it follows that the allegation is made out and the Applicant breached the Respondent’s policies in relation to the use of force.”

[30] The Commissioner then found that Mr Maxitanis’ conduct was in breach of the Department’s policies, and to the extent that this conduct was an unauthorised deviation from the Use of Force Philosophy and related policies, the Department’s allegation had been made out and that Mr Maxitanis’ conduct seriously and negatively undermined the Department in its obligation to maintain public trust and confidence. 8 The Commissioner then found (footnote omitted):

“[43] I have taken into account the Applicant’s submission that that there is an unfortunate reality that employment as a prison officer means constant exposure to the risk of physical violence in enforcing custodial orders against prisoners. I have also accepted the Applicant’s evidence that the Chillwell unit was not his usual work location and that he had no specific knowledge of Prisoner X’s particular vulnerabilities. I have also taken into account the matters referred to at paragraphs [31] to [32] including the fact that that Prisoner X had not followed a lawful direction to return to his cell. However, on balance, my observations of the footage are that even in this context the Applicant reacted prematurely and unnecessarily forcefully.

[44] Accordingly, I am satisfied that the breach of policy in relation to the allegation is sufficiently serious to conclude that there is a valid reason for termination of employment.”

[31] The Commissioner then dealt with the considerations in paragraphs (b)-(h) of s 387 of the FW Act. In relation to paragraphs (b) and (c), the Commissioner found that Mr Maxitanis was notified of the reason for his dismissal and provided with an opportunity to respond, and that this weighed in favour of a finding that the dismissal was not harsh, unjust or unreasonable. 9 In relation to paragraph (d), the Commissioner noted Mr Maxitanis’ concession that he was offered the opportunity to have a support person, and said that this also weighed in favour of a finding that the dismissal was not harsh, unjust or unreasonable.10 The Commissioner found that paragraph (e) was not relevant because the dismissal related to Mr Maxitanis’ conduct rather than his performance,11 and found paragraphs (f) and (g) to be a neutral factor.12

[32] In respect of s 387(h), the Commissioner first gave consideration to Mr Maxitanis’ submission that termination was disproportionate in the circumstances, and noted in that context that the Department relied on Mr Maxitanis’ performance history to refute the claim that Mr Maxitanis had an excellent performance history and to demonstrate that he had previously been counselled about the Department’s use of force policy. 13 The Commissioner then engaged in a detailed analysis of the performance history. In respect of allegations of an assault on another officer (9 November 2015), a failure to report for duty (18-21 September 2016) and a second allegation of an assault on a fellow officer (20 May 2017), the Commissioner said she gave little weight to each these matters.14 In respect of an alleged assault on a prisoner in June 2017, the Commissioner said that she was satisfied that Mr Maxitanis was reminded of the Department’s use of force policy,15 but did not make any findings of fact about the incident itself. As to an allegation concerning the use of force on a prisoner on 3 March 2018, the Commissioner was again satisfied that Mr Maxitanis was reminded of the Department’s use of force policy,16 but did make any findings of fact about the incident. The Commissioner then found that the evidence did not support Mr Maxitanis’ submission that his training was defective, and in relation to the performance history relevantly concluded:

“[82] I do not make any findings in relation to the conduct relating to each of the matters in the Applicant’s performance history, however, on the basis of the material before me, though there is no formal written warning or disciplinary action recorded against the Applicant, I cannot be satisfied that the Applicant’s performance history is “exemplary” as described by the Applicant.

. . . .

[84] For the purposes of my findings, I have given weight to the June 2017 and 3 March 2018 incidents and I am satisfied that the Applicant was aware, at least from the June 2017 incident, of his obligations in relation to the Respondent’s use of force policy, and the Respondent’s concerns regarding his use of force in both the June 2017 and 3 March 2018 incidents.

[85] On the basis of the above I am satisfied that the dismissal is not disproportionate.”

[33] The Commissioner rejected a submission that Mr Maxitanis was denied procedural fairness because the Department took into account his performance history without raising those matters with him prior to dismissal. 17 The Commissioner then address the issue of the delay of some 14 months between the incident and the termination of employment, and concluded that this was too long and constituted a failure to comply with clause 21 of the Agreement, and that this was to be taken into account in coming to the overall conclusion.18

[34] The Commissioner said that she took into account Mr Maxitanis’ five years of service and lack of any formal disciplinary action or written warning, that the dismissal had caused him personal distress and financial loss and would cause him difficulty in finding alternative employment in corrections, law enforcement, emergency services or public sector employment. 19 The Commissioner then stated the following overall conclusion (footnotes omitted):

“[99] Having considered each of the matters specified in s.387 of the Act, I find that the Applicant’s dismissal was not harsh, unjust and/or unreasonable. I have found a valid reason for dismissal. I have considered whether the decision to terminate the Applicant is disproportionate and in light of my findings at [81] to [85] above, I have concluded that the termination of the Applicant was not disproportionate. Whilst the Respondent’s investigation process was lengthy, and consequently in breach of the Respondent’s enterprise agreement obligations, in the circumstances of this case, in particular where the Applicant was performing “meaningful” non-prisoner contact duties for the entire period, and in light of my findings above [42], [43]and [44], this does not itself render the dismissal unfair.

[100] The gravity of the Applicant’s misconduct, as set out at paragraphs [36] to [44], outweighs the procedural unfairness associated with the delays in the investigation, as set out at paragraphs [86] - [93]. Accordingly, the unfair dismissal application is dismissed.”

Appellant’s submissions

Appeal ground 1

[35] Mr Maxitanis submitted that the Commissioner erred in finding that there was a valid reason for his dismissal in eight respects:

(1) Prisoner X’s arms were not moving only “in the normal action of walking” as he approached Mr Maxitanis. A fair viewing of the CCTV footage shows that Prisoner X approached him deliberately, quickly and aggressively, with his arms moving upwards. There was nothing normal about this, and it was agreed between the parties that the moment before Mr Maxitanis took Prisoner X to the ground, the prisoner took another step towards Mr Maxitanis with his right foot in, or close to, contact with Mr Maxitanis’ left foot. Mr Maxitanis should not have expected to wait to see if the arms moving were going to strike him before responding.

(2) The Commissioner’s finding that there was ample room and time for Mr Maxitanis to more further away or take another course of action is at odds with the CCTV footage. The chronology in the decision showed that only three seconds passed between Prisoner X advancing towards Mr Maxitanis and him being restrained on the floor. The Commissioner also overlooked the fact that Mr Maxitanis had already taken evasive action by moving away, but Prisoner X kept heading towards him. Mr Maxitanis should not be criticised for seeking to maintain lawful authority rather than effectively fleeing.

(3) The Commissioner concluded that there was a valid reason for dismissal based upon a finding that he had breached the Department’s policies concerning the use of force, but never identified what provision of what policy had been breached. The Commissioner also made reference to the “central use of force philosophy” without identifying what this was or how it was breached. Mr Maxitanis did not breach any actual policy of the Department, and if there was a policy breach he had not been adequately trained.

(4) The Commissioner found that Mr Maxitanis acted “prematurely and unnecessarily forcefully”, but the CCTV footage demonstrates that there was nothing premature about his actions. If he waited, he would probably have been struck by Prisoner X. Nor was it open to say that the actions were unnecessarily forceful, since Prisoner X was taken down in a controlled manner with Mr Maxitanis’ hand behind his head as he went to the floor, and he was not injured nor did he make a complaint about what occurred.

(5) It was conceded by the Department that Prisoner X was acting aggressively, but this was not acknowledged by the Commissioner. The findings made by the Commissioner concerning Prisoner X’s unsteady gait and his normal action of walking, and that the material before her did not support a conclusion that Mr Maxitanis feared for the safety of himself and his colleagues, were inconsistent with that concession. The Commissioner did not engage with the evidence given by Mr Maxitanis that he feared for his safety.

(6) The Commissioner did not deal with the unchallenged evidence of Mr Maxitanis and PO Wallace that Prisoner X refused to provide his name or move to his cell as directed. Instead she found that, because there was no audio on the CCTV, it was impossible to know what was said or infer the force of the communication. The content of the oral exchanges with the prisoner, the aggression he was demonstrating and his failure to follow orders were crucial to the analysis required to be undertaken by the Commissioner.

(7) The Commissioner failed to address the application of s 23(2) of the Corrections Act 1986 (Vic), under which the use of reasonable force upon a prisoner refusing to comply with the orders of a prison officer is authorised.

(8) The Commissioner did not take into account the important public interest in ensuring the orderly conduct of corrections facilities, and failed to view the case before her through the prism of the unusual and high-risk work environment of prison officers.

Appeal ground 2

[36] Mr Maxitanis submitted that although the Commissioner correctly acknowledged that this was not a performance-based dismissal, she nonetheless embarked upon an analysis of other incidents in Mr Maxitanis’ performance history to reach a view about the incident on 26 April 2018. This history was not relevant to whether Mr Maxitanis’ conduct during the incident constituted misconduct.

Appeal ground 3

[37] Even if Mr Maxitanis committed some breach of a policy of the Department, it was submitted that his dismissal could still be harsh, unjust or unreasonable. In this respect, Mr Maxitanis’ argument before the Commissioner was that the sanction of dismissal was disproportionate to the alleged misconduct and that some sanction short of dismissal was called for. However, this argument was not adequately dealt with by the Commissioner, and to the extent that it was considered, that consideration was limited to an examination of the irrelevant issue of the performance history of Mr Maxitanis.

Appeal ground 4

[38] It was submitted that it was not open for the Commissioner to find that Mr Maxitanis was afforded procedural fairness when he had never been given an opportunity to respond to the performance issues raised against him.

Appeal ground 5

[39] There was a delay of some 14 months between the date of the incident and the date of dismissal, which was in itself a source of unfairness and caused Mr Maxitanis stress, anxiety and uncertainty and involved such procedural deficiency that it led to the Department being issued a Worksafe Improvement Notice for its failure to provide a safe system of work. Mr Maxitanis submitted that this delay involved a breach of clause 21.1 of the Agreement, as the Commissioner found, yet no significant weight was attached to this finding. Nor did the Commissioner attach weight to the fact that during this period of 14 months, the Department continued to utilise Mr Maxitanis’ services in a trusted and important role in the prison control room.

Appeal ground 6

[40] It was submitted that the implications for Mr Maxitanis are significant, in that it is unlikely he will be able to gain employment again as a prison officer. While the Commissioner noted that she had taken this into account, there was no engagement with the issue in the decision.

Appeal ground 7

[41] There were three relevant matters which, it was submitted, were not dealt with in the decision:

  the deficiencies in the investigation process, including that PO Wallace was not interviewed:

  the stress and anxiety caused by the delay in the investigation process; and

  the failure by the Department to call as witnesses the investigator, the decision-maker and the person who recommended dismissal.

[42] Mr Maxitanis submitted that the above considerations caused the Commissioner to fall into error in her ultimate decision to dismiss his application. He submitted that it was in the public interest to grant permission to appeal because it was necessary to correct a manifest injustice, and in addition the grant of permission would facilitate consideration by a Full Bench of the circumstances in which the use of force by a prison officer is justified. He further submitted that if the appeal was upheld, we should reach our own view as to the merits of the unfair dismissal application. The appropriate conclusion in that respect was, it was submitted, that Mr Maxitanis’ dismissal was unfair, and that he should be reinstated to his former position together with backpay and a restoration of entitlements.

Respondent’s submissions

[43] The Department submitted that, on appeal, the following propositions applied:

  a complaint that the Commissioner failed to give sufficient weight to a particular was not a competent House v The King appeal ground, and the Commissioner had the ultimate discretion as to the weight to be attached to any particular consideration; and

  an appeal is not an opportunity to re-run the facts in the hope of a different outcome and, if the facts as found were reasonably open, then the Full Bench would not intervene;

  if a factual error was made out according to House v The King principles, it need to be “significant” as required by s 400(2) – that is, central or foundational to the resolution of the case;

  it is necessary to consider the Commissioner’s reasons fairly, and as a whole, and it would be erroneous to adopt a narrow approach and comb through the reasons with a “fine appellate tooth-comb”; and

  the Full Bench is deprived of the advantages enjoyed by the Commissioner, namely the entire presentation of the evidence, seeing and hearing the witnesses, and the “feel” of the case.

[44] In respect of the CCTV footage of the incident, the Department submitted that the Full Bench should review this footage for itself, at normal speed. However, it was submitted, this did not mean that the Full Bench should intervene if it prefers a different conclusion, since the test remains whether or not the Commissioner’s findings were open to her. The footage speaks for itself, and shows that Mr Maxitanis’ conduct was not a proportionate response to the situation, Prisoner X’s welfare was jeopardised, the manoeuvre was a radical departure from accepted technique, placed Prisoner X at serious and unnecessary risk of injury, and put the safety of Mr Maxitanis and his colleagues at risk.

Appeal ground 1

[45] In relation to ground 1 of the appeal, the Department submitted that:

  the allegation of error in respect of the Commissioner’s description of the movement of Prisoner X’s arms as “only in the normal action of walking” should be rejected as the Commissioner’s description was accurate or at least open to her, and in any event if there was an error in her choice of adjective, it was not of any significance since Prisoner X’s walking action was only tenuously connected to her analysis of whether or not Mr Maxitanis’ use of force was reasonable;

  the Commissioner’s finding that there was ample time and room for Mr Maxitanis to move further away or take another course of action was plainly open on all the evidence as a whole;

  there may have been no altercation at all if, when Prisoner X walked away from Mr Maxitanis, he had not followed him and remain in his personal space, thus escalating the situation;

  xxxxxxxxxxxxx xxxxxxxxxx xxxx xxxxxxxx xxxxxxxx xxxxx xxxx xxxxxx xxxxxxxx xxxxx xxxx xxx xxxxxxx xxx xxx xx xxxxxxx xxx xxxxxx xxxxxxx xxxxxxxx were all available use of force techniques and all were called for;

  whether or not these techniques could have contained the situation is theoretical because Mr Maxitanis made no attempt to use them;

  if force was still required to be used at that stage, xxx xxxxxxxxx xxxxxx xx xxxxxx xxx xxxxx xxx xxxxxxxxx xxx xxx xxxxxxxx xxx xxx xxxxxxxx techniques were all available and sanctioned by Department policy as reasonable uses of force;

  the Commissioner’s reference to “policy” in paragraph [41] of the decision can be understood as a reference to paragraph 2.0 of DCI 1.13 (which we have earlier set out), and the central tenet of that paragraph was an agreed fact;

  there was nothing erroneous in the Commissioner’s conclusion that she could not make findings about what was said between Prisoner X and Mr Maxitanis because the CCTV was silent, and the appellant’s complaint about this is only that the Commissioner did not prefer his evidence;

  the Commissioner took into account that PO Wallace directed Prisoner X to return to his cell in paragraph [31](b) of the decision, and indeed the Commissioner accepted Mr Maxitanis’ own chronology of the events;

  Mr Maxitanis’ submission that the verbal altercation justified the use of force was contrary to his own oral evidence and the agreed statement of facts;

  the issue of s 23(2) of the Corrections Act was incorporated into the Department’s policy and the agreed question raised by the policy, which the Commissioner addressed; and

  the issue of the public interest in the orderly conduct of corrections facilities was addressed in paragraph [43] of the decision, and the Commissioner’s findings there were reasonably open and not in error.

[46] In respect of appeal ground 2, the Department submitted that the Commissioner’s consideration of Mr Maxitanis’ performance history was responsive to his submission that his “exemplary performance” should be taken into account and his evidence in that respect. Mr Maxitanis having raised his performance history, the Commissioner was duty bound to consider it. The evidence on this subject included that Mr Maxitanis had been reminded of his obligation to comply with the department’s use of force policy only seven weeks prior to the incident. It was not open to Mr Maxitanis to advance a different case on appeal.

[47] As to appeal ground 3, the Department submitted that the Commissioner had noted and dealt with Mr Maxitanis’ submission concerning the proportionality of dismissal as a sanction for any breach of policy he may have committed. As to appeal ground 4, the evidence supported the Commissioner’s conclusion that Mr Maxitanis had been accorded procedural fairness, in that the Department in its correspondence to Mr Maxitanis advised him that it had considered, among other things, his previous history of misconduct, and gave him the opportunity to respond before any final decision was made. The Department submitted that appeal ground 5 was incompetent because it was merely a complaint about the weight to be ascribed to the factual finding that there was delay in the conduct of the investigation/disciplinary process. Clause 21.1(b) of the 2016 Agreement was hortatory and aspirational only, and did not constitute a specific obligation which was contravened by the Department. In relation to appeal ground 6, it was submitted that the Commissioner had considered the adverse consequences of dismissal upon Mr Maxitanis, and the appeal ground is in substance no more than that Mr Maxitanis is not satisfied with the Commissioner’s reasoning in paragraph [95] of the decision. Any complaint about an insufficiency of reasons is not demonstrative of a failure to consider relevant matters. In respect of appeal ground 7, the Department submitted that any failure to consider the three identified matters could not amount to an error serious enough to vitiate the entire exercise of the discretion. In any event, the Commissioner considered the deficiencies in the investigation process, and any failure to interview PO Wallace had no bearing on the matters the Commissioner was asked to decide. The Commissioner considered Mr Maxitanis’ stress in paragraphs [91] and [95] of the decision, and there was no error associated with the failure of the Department to call the investigator, since the Commissioner was required to decide for herself whether or not the conduct was engaged in and whether there was a valid reason.

[48] The Department submitted that permission to appeal should be refused, or the appeal otherwise dismissed. In the event the appeal was upheld, it submitted as follows:

“If the appeal is allowed, the only appropriate course would be to order that the proceeding be remitted to deal with the Full Bench’s conclusions. The voluminous appeal grounds means that the Department cannot sensibly assist the Full Bench as to what it could or should do if it decides to conduct a rehearing. The Department otherwise relies on all of its oral and written submissions below, should a rehearing occur.”


[49] For reasons which will become apparent, it is only necessary for us to consider the first appeal ground, which concerns whether the Commissioner erred in finding that there was a valid reason for dismissal.

[50] Section 387(a) of the FW Act requires the Commission, as part of its consideration as to whether it might be satisfied that a dismissal was harsh, unjust or unreasonable, to take into account whether there was a valid reason for the dismissal related to the dismissed person’s capacity or conduct. The assessment of whether the reason for the dismissal is “valid” requires the making of an evaluative judgment based on findings and inferences of fact. In an appeal, error may be found in relation to a conclusion made for the purposes of s 387(a) on the basis that the evaluative judgment made was not reasonably open, or that a relevant matter was not considered or that an irrelevant matter was taken into account, or that the evaluative judgment was based on an error of fact which meets the threshold requirement in s 400(2) of being “significant” in nature, or that the first instance decision-maker acted upon a wrong principle (including contrary to principles established by this Commission at the appellate level). However, error cannot be found on the basis of a mere preference for a different legitimate result. 20

[51] Where an appellate court or tribunal is empowered to hear appeals by way of rehearing (as is a Full Bench of this Commission 21), the principles to be applied to reviewing findings of fact made by the first instance decision-maker are those stated by the High Court in Warren v Coombes as follows:

“Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation.” 22

[52] Where, in a decision under appeal, the decision-maker has made findings of fact involving the resolution of a conflict of evidence between witnesses, it is necessary for an appellate tribunal to recognise and respect the advantage the decision-maker has had in seeing and hearing the witnesses give evidence and the role which the credibility and demeanour of the witnesses may have played in the decision-maker’s findings, even if not expressly adverted to in the decision. 23 However these considerations will be far less relevant where agreed or incontrovertible facts demonstrate error on the part of the first-instance decision-maker.24

[53] In this case, the Commissioner’s decision did not depend upon the resolution of conflicting witness evidence as to the primary facts. As earlier set out, the background facts were agreed or not the subject of any live dispute. The incident itself was captured on CCTV footage from two different angles, and so it was not necessary for the Commissioner to rely on the witnesses to determine precisely what happened during the incident from an objective visual perspective. Mr Maxitanis gave evidence concerning his verbal exchanges with Prisoner X and his perceptions and thought processes before and during the incident, and the Commissioner did not find him to be a witness lacking in honesty or credibility (although the Commissioner appears to have rejected one aspect of his evidence, which we discuss later). There is also no suggestion of any doubt as to the credibility of PO Wallace’s evidence concerning the incident. Accordingly, this is a fairly unusual case where we are in as good a position as the Commissioner to determine the appropriate factual inferences to be drawn from the primary evidence concerning the incident.

[54] Having carefully reviewed the CCTV footage and considered the evidence of Mr Maxitanis, PO Wallace, Mr Ridsdale, Mr Nesci and Mr Calder in particular, we consider that the Commissioner’s conclusion that Mr Maxitanis’ conduct during the incident constituted a valid reason for his dismissal was in error for a number of reasons, which we set out below.

[55] First, the Commissioner failed to take into account a number of important contextual considerations which appear to us to have been uncontroversial on the evidence:

(1) Prisoner X had a psychiatric illness and a history of aggressive behaviour and volatility towards prison staff.

(2) Mr Maxitanis had previously been involved in an incident on 9 August 2017 in which he had been required to “settle down” Prisoner X, who was behaving in a hostile manner. Mr Maxitanis had been requested to assist another staff member who was apprehensive about engaging with Prisoner X. Mr Maxitanis was able to resolve the situation without the use of force.

(3) The incident was initiated with Prisoner X refusing to comply with a simple and standard instruction from PO Wallace to give his name and cell number in order to receive his meal. Prisoner X was then abusive and yelling profanities, and PO Wallace thereupon directed Prisoner X to go to the holding cell. Prisoner X refused to comply.

(4) Mr Maxitanis only became involved in order to provide support for PO Wallace.

[56] We do not consider that Mr Maxitanis’ subsequent conduct may fairly be assessed without taking into account these significant matters of context.

[57] Second, the Commissioner assessed Mr Maxitanis’ conduct purely by reference to the CCTV footage without bringing to bear the other evidence of the witnesses to the incident – namely Mr Maxitanis himself and PO Wallace. In particular, in paragraph [38] of the decision, the Commissioner proceeded upon the basis that because there was no audio to accompany the CCTV footage, it was not possible to know what was said in the initial exchange between Mr Maxitanis and Prisoner X or “to infer the force of the communication”. This is an error of the same nature as that identified in the recent Full Bench decision in Heading v ACT Government Justice and Community Safety 25 as justifying the grant of permission to appeal in relation to a dismissal arising from a use of force incident in a correctional centre.

[58] Mr Maxitanis and PO Wallace both gave evidence that, upon intervening, Mr Maxitanis directed Prisoner X to go to his cell or the holding cell, and Prisoner X refused. As earlier set out, Mr Maxitanis gave a verbatim account of this exchange in his oral evidence, which we discuss further below. This evidence was not challenged. Further, PO Wallace gave evidence that Prisoner X was then yelling profanities. Thus it was clearly possible to ascertain, broadly speaking, what was said and “the force of the communication”. These matters are important because they reinforce that Prisoner X was non-compliant, in an agitated state and acting aggressively for no reason associated with the conduct of either PO Wallace or Mr Maxitanis.

[59] Third, the Commissioner took no account of the actions Mr Maxitanis took in relation to Prisoner X before his use of force, and characterised his use of force as “premature”. However it is clear that Mr Maxitanis took the following steps before he resorted to the use of force:

(1) As earlier stated, he intervened in support of PO Wallace and directed Prisoner X to return to his holding cell. There is no suggestion that this was not an appropriate course. This appears to us to be consistent with the approach of xxxxxxxx xxxxxxxxx referred to in Mr Ridsdale’s evidence. Mr Maxitanis said that the exact words he used to communicate this were: “…it's gone too far now, you either need to go to your cell or the holding cell to cool off.  It's your choice, I don't mind, but we need to cool off, yeah?” This appears to us to incorporate the elements of authoritative and respectful interaction referred to by Mr Ridsdale, as well as the negotiation style of xxxxxx xxxxxxxxxxx xxxxxxxxxxxxx xxxxxx xx xxxxxx xxx xxxxxxx xxx xxxxxxx xxxxx xxxxxxxxxxxxx It certainly cannot be said that Mr Maxitanis failed to use communication techniques with Prisoner X, as suggested by Mr Nesci.

(2) This initial engagement occurred while Prisoner X and Mr Maxitanis were both walking, with Mr Maxitanis behind Prisoner X. That makes it clear, we consider, that Mr Maxitanis did not intend for there to be any physical confrontation with Prisoner X.

(3) The confrontation was initiated by Prisoner X, who suddenly turned and faced Mr Maxitanis and began to move towards him. Mr Maxitanis initial response was to step backwards in the face of this. This was consistent with the xxxxxxxxxxxxxxx tactic referred to by Mr Ridsdale, which “involves xxxxxxxxxx xxx xxxxxxxxx xxxx where a situation is getting out of control”.

[60] By no means can it be considered therefore that Mr Maxitanis used force as a first resort in response to a non-compliant prisoner. Instead, we consider that the evidence demonstrates that Mr Maxitanis initially tried to use the non-force options he had been trained to use. We will return to whether his use of force was “premature”.

[61] Fourth, we consider, with respect, that the Commissioner’s description of Prisoner X’s actions in walking towards Mr Maxitanis (in paragraph [39] of the decision) misses the essential point. Prisoner X was not simply walking in a different direction. The obvious inference that can be drawn from Prisoner X’s actions as seen on the CCTV footage is that he was seeking a physical confrontation with Mr Maxitanis. No other explanation for his behaviour is reasonably available. It is of course not possible to say what form that physical confrontation might have taken, but we consider Mr Maxitanis’ evidence that he “was of the honest belief that he was stepping in to assault me” to be credible and objectively reasonable in light of what can be seen in the CCTV footage. Mr Nesci’s characterisation of the situation as “relatively unthreatening” is not a reasonable description of what can be seen. The Commissioner appears in paragraph [39] of the decision not to have accepted Mr Maxitanis’ evidence that he feared for his own safety, but did not give any express reason for this (as distinct from her rejection of his evidence that he feared for the safety of another colleague, PO Gellatly).

[62] In any event, we do not agree with the Commissioner’s description of Prisoner X’s pace as “not swift” and his arms being “in the normal action of walking”. Prisoner X, after he turned to face Mr Maxitanis in an obviously agitated state, advanced towards him suddenly and aggressively such as to bring himself quickly into very close physical proximity to Mr Maxitanis. His left arm movement immediately before the use of force is ambiguous, but there is nothing “normal” about what he was doing.

[63] Fifth, we do not consider that it can fairly be said that Mr Maxitanis’ use of force was “premature” or that there was “ample room and time” for Mr Maxitanis to move away or take a different course of action. Immediately before this, Prisoner X was in very close proximity to him with (it was agreed) his right foot in contact with or close to contact with Mr Maxitanis’ left foot. Mr Maxitanis was moving backwards, making it difficult for him to disengage from Prisoner X and create the xxxxxxxxxxxx xxxx referred to by Mr Ridsdale. It appears unlikely to us that “communicating calmly” with Prisoner X, as suggested by Mr Ridsdale, would have resolved the situation given the imminence of the physical confrontation clearly being sought by Prisoner X. As earlier discussed, the evidence shows that Mr Maxitanis had already tried non-force options to resolve the situation, but it had nonetheless escalated because of Prisoner X’s aggressive and volatile behaviour. Importantly, Mr Ridsdale and did not suggest that no use of force was called for in the incident; his evidence was that upon the failure of non-contact options, there were three force options that would have been appropriate, namely a xxx xx xxx xxxx xxxxxxxxx xxxxxxx x xxxxx xxx xxxxxxxxxx xx x xxxxxxx xxx xxx xxxx xxxx. The last method, notably, involves xxxxxx xxx xxxxxxx xx xxx xxxxxxx Mr Nesci also gave evidence to similar effect.

[64] For the above reasons, we consider that the correct inference to be drawn is that the use of force of some type in the situation in which Mr Maxitanis found himself was not unreasonable or unnecessary. In summary, he was faced with a situation in which a prisoner who had a psychiatric illness, and who was acting aggressively and being non-compliant with directions, was seeking a physical confrontation with him by walking towards him and bringing himself in very close proximity to him. In the circumstances, we consider that it was objectively reasonable for Mr Maxitanis to consider himself at risk of assault and to have a concern for his own safety if he took no action.

[65] There remains the issue of the actual manoeuvre utilised by Mr Maxitanis to bring force to bear against Prisoner X. It may be accepted that the manoeuvre was not one for which Mr Maxitanis had been trained, and it would have been a better choice for Mr Maxitanis to have used one of the manoeuvres referred to by Mr Ridsdale and Mr Nesci. However the following considerations need to be taken into account:

(1) Mr Maxitanis was faced with a literal split-second decision to be made as to his response to the situation he faced. The chronology of the CCTV footage accepted by the Commissioner, which we have earlier set out, shows that only one second elapsed between Prisoner X taking his first step towards Mr Maxitanis and commencing to use force upon Prisoner X. At worst, Mr Maxitanis made an error of judgment about which use of force technique was most appropriate in a context requiring an instantaneous decision.

(2) There is no evidence that the takedown technique caused any injury or harm to Prisoner X, and it was successful in allowing Prisoner X to be brought under control with the assistance of other officers in the area.

(3) As the Commissioner noted in paragraph [37] of the decision, the Department conceded that the technique used was not specifically prohibited as long as it involved a use of force that was reasonable in the circumstances.

[66] We have earlier set out the eight respects in which Mr Maxitanis contends that the Commissioner erred in finding that there was a valid reason for the dismissal. We uphold the first, second, fourth, fifth and sixth of those eight contentions. The Commissioner, as set out above, drew the wrong inferences from unchallenged or incontrovertible evidence as to the primary facts, and failed to take into account relevant evidence and relevant considerations, in her analysis under s 387(a). Those errors caused her evaluative assessment as to whether there was a valid reason for dismissal to miscarry. To the extent this involved any error of fact, it was necessarily a significant error of fact because it concerned the central factual issue in the case. If the correct inferences had been drawn and all relevant evidence and considerations taken into account, then the proper conclusion would have been that the use of force by Mr Maxitanis could not reasonably be characterised as unreasonable or unnecessary and was not in breach of DCI 1.13. Mr Maxitanis may not have selected the most appropriate use of force technique in the split-second that he had to decide how to respond to Prisoner X’s aggressive behaviour, but that cannot reasonably be said to be a matter “of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-founded response to the conduct” 26 having regard to the matters earlier adverted to.

[67] Because the Commissioner’s erroneous determination that there was a valid reason for Maxitanis’ dismissal was fundamental to her decision that his dismissal was not unfair and that his unfair dismissal remedy application should be dismissed, we consider that the decision manifests an injustice to Mr Maxitanis and accordingly that the grant of permission to appeal would be in the public interest. We therefore grant permission to appeal, uphold ground 1 of the appeal, and quash the decision. In those circumstances it is unnecessary for us to give consideration to the other grounds of appeal.

[68] We consider that the appropriate course in light of this conclusion is to re-determine Mr Maxitanis’ unfair dismissal remedy application ourselves. At least with respect to the question of whether the dismissal was unfair, this can be undertaken on the basis of the evidence that was before the Commissioner. We do not see any practical purpose in remitting the matter for further consideration, as proposed by the Department. As already explained, the primary facts of the matters are either not in dispute or are incontrovertible, and there is no suggestion of a need to call further evidence at least as to whether the dismissal was unfair. Remittal would therefore only cause further delay.

Re-determination of Mr Maxitanis’ unfair dismissal remedy application

[69] In relation to the matters set out in s 396 of the FW Act requiring initial determination, we find as follows:

(a) Mr Maxitanis’ application was made within the period required by s 394(2);

(b) Mr Maxitanis was a person protected from unfair dismissal;

(c) the Department was not a “small business employer” as defined in s 23 of the FW Act, so that the Small Business Fair Dismissal Code was inapplicable; and

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

Whether the dismissal was unfair

[70] It is next necessary for us to determine whether Mr Maxitanis’ dismissal was harsh, unjust or unreasonable having regard to the matters specified in s 387 of the FW Act. In relation to s 387(a), we find that there was no valid reason for Mr Maxitanis’ dismissal related to his conduct or capacity. For the reasons we have earlier set out, we do not consider that the use of force by Mr Maxitanis upon Prisoner X was unreasonable or unnecessary. Although the particular force manoeuvre used by Mr Maxitanis may not have been the most appropriate for the situation and may not have conformed to his training, it is necessary to take into account the fact that Mr Maxitanis was faced with an aggressive and psychiatrically ill person, feared he was about to be assaulted, was required to make a split-second judgment as to how to respond, and did not inflict any injury upon Prisoner X.

[71] In relation to s 387(b) and (c), we agree with the Commissioner’s conclusion that the Department notified Mr Maxitanis of the reason for his dismissal and gave him the opportunity to respond. However, we do not consider that this necessarily weighs against a finding that the dismissal is unfair; rather we think the compliance with the minimal procedural fairness requirements in s 387(b) and (c) by a large and sophisticated public sector organisation such as the Department is not a matter of significance and should be treated as a neutral consideration. 27 We agree with and adopt the Commissioner’s conclusions with respect to s 387(d), (e), (f) and (g). In relation to paragraph 387(h), we regard the following matters as relevant and favouring the conclusion that Mr Maxitanis’ dismissal was harsh:

  his record of employment over almost five years was not blemished by any prior disciplinary action or warnings;

  the dismissal has, as the Commissioner found, caused Mr Maxitanis distress and financial loss, and is likely to make it difficult for him to gain future employment in the corrections industry, law enforcement, emergency services or the public sector generally; and

  the investigation period before the dismissal was attended by inexplicable and unconscionable delay, which caused unnecessary anxiety and uncertainty to Mr Maxitanis and was detrimental to his mental health.

[72] There is one other relevant matter which requires consideration, namely that Mr Maxitanis was at least reminded if not counselled about the need to comply with the Department’s use of force policies following incidents in June 2017 and on 3 March 2018. On one view, this should have led to Mr Maxitanis exercising greater care as to how he responded to the conduct of Prisoner X on 26 April 2018. However there was no finding on either of these earlier occasions that Mr Maxitanis had used unreasonable, unnecessary or excessive force, and on the evidence that appears to have led Mr Maxitanis to consider that his conduct in these earlier incidents was compliant with DCI 1.13. Absent evidence that Mr Maxitanis had in clear terms been warned that he had engaged in conduct which was improper and not to be repeated, this must be treated as a matter with neutral weight.

[73] Taking the above matters into account, we find that Mr Maxitanis’ dismissal was unjust and unreasonable because there was no valid reason for his dismissal, and harsh because of the factors we have considered in respect of s 387(h). Accordingly, we find that he was unfairly dismissed.


[74] We consider that the parties should be given the opportunity to adduce further evidence and make further submissions in relation to the remedy, if any, which should be awarded to Mr Maxitanis in respect of his unfair dismissal having regard to the passage of time since the evidence at first instance was adduced and the need for the parties to give consideration to the findings we have made above. Accordingly, we will make appropriate directions to facilitate this.

Orders and directions

[75] We make the following orders:

(1) Permission to appeal is granted.

(2) The appeal is upheld.

(3) The decision ([2020] FWC 2019) is quashed.

[76] We make the following directions:

(1) Mr Maxitanis and the Department shall file any further evidence and submissions concerning the issue of the remedy to be awarded, if any, within 14 days of the date of this decision.

(2) Any evidence and submissions in reply shall be filed within a further 7 days.

al of the Fair Work Commission with the memeber's signature.


Hearing details:

Determined on the basis of written submissions

Final written submissions:

Appellant and respondent’s supplementary outline of submissions, 17 July 2020.
Appellant and respondent’s supplementary submissions in reply, 24 July 2020.

Printed by authority of the Commonwealth Government Printer


 1   [2020] FWC 2019

 2   Metropolitan Remand Centre Local Operating Procedure 1.13 – Use of Force, Instruments of Restraint and Canine Teams

 3   Ibid at [31]-[32]

 4   Transcript, 9 October 2019, PNs 318-336

 5   Ibid, PNs 684-695

 6   Ibid , PNs 739-779

 7   Ibid at [36]

 8   Ibid at [42]

 9   Ibid at [51]

 10   Ibid at [53]-[54]

 11   Ibid at [56]

 12   Ibid at [58]

 13   Ibid at [63]

 14   Ibid at [65],[70] and [71] respectively.

 15   Ibid at [76]

 16   Ibid at [80]

 17   Ibid at [86]

 18   Ibid at [92]-[93]

 19   Ibid at [94]-[95]

 20   See Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47, 203 CLR 194, 99 IR 309 at [19]-[21]; BP Refinery (Kwinana) Pty Ltd v Tracey [2020] FCAFC 89, 378 ALR 120 at [15]-[17]; Toms v Harbour City Ferries Pty Limited [2015] FCAFC 35, 229 FCR 35, 248 IR 101 at [85]-[94]

 21   Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47, 203 CLR 194, 99 IR 309  at [17]

 22   [1979] HCA 9, 142 CLR 531 at 551

 23   Abalos v Australian Postal Commission [1990] HCA 47, 171 CLR 167 at 179; Devries v Australian National Railways Commission [1993] HCA 78, 177 CLR 472 at 479, 482-483

 24   Fox v Percy [2003] HCA 22; 214 CLR 118 at [28]

 25   [2020] FWCFB 3660 at [20]-[21]

 26   See Edwards v Giudice [1999] FCA 1836, 94 FCR 561 at [6]- [7] per Moore J, see also at [40] per Marshall J; The Trustee for WKC Trust t/a Curious Grace v Emily O'Brien [2019] FWCFB 7796 at [20]

 27   See Sydney Trains v Gary Hilder [2020] FWCFB 1373 at [40]