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Introduction

Read the full decision here.

The Applicant in this matter a corrections officer win a jail was dismissed for using force against a detainee who refused to cooperate. We learn from this decision that corrections officers have an extraordinary duty to restrain themselves from restraining the detainees.

The Applicant commenced employment with the Respondent in July 2007 as a Correctional Officer.

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).

The respondent company in this matter requested and was granted anonymity in this private hearing.

Background

The Applicant was suspended with pay on 20 June 2018, and was advised the next day in writing that:

“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.”

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

The Applicant’s case

The Applicant in his submissions contended that he had taken the action in self-defense, and 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 gave the Applicant a thorough apology for the incident;
  • there was no evidence that any detainee had made a complaint to the Official Visitor or that the police had been contacted regarding the incident;
  • the use of force was necessary, appropriate, and successful in all the circumstances.

The applicant’s work history

The applicant gave evidence that during his employment with the respondent:

  • 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 the use of force, adding that his last resort was the 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; and
  • he maintained that the training provided to officers was negligible and insufficient for the work they performed, adding that officers were not trained to deal with people like the detainee.

Training now extended

Prior to the incident officers received one or two hours of training each year in the use of force but that since the incident several days of training were rostered each year.

The detainee involved in the incident was described as unpredictable and as someone who could become highly agitated. As to the incident itself, a fellow corrections officer stated:

  • 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 another corrections officer 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;
  • according to the other corrections officer, 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.

Why he was dismissed

The Respondent submitted 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 the 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.

Authorised use of force

According to the CM Act:

(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.

Conclusion

In dismissing the application, the Deputy President hearing this matter discarded the 2012 warning as being of no relevance given it was provided many years earlier. However, finding that:

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”.

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The full decision can be found here.

Introduction

When the decisions did not go in his favour, this applicant set out to blame the umpire…and failed, five times.

Background

Initial application

The applicant is aggrieved by a series of decisions of the Fair Work Commission. The applicant was employed by the respondent as a line haul driver for less than two months until his dismissal. He then made application for an unfair dismissal in the FWC. His former employer objected on the grounds that the application was made outside of the 21-day time limit. The FWC declined to extend the applicant’s time.

However, the applicant wished the matter to heard in person (did not specifically object to his ex-employer using legal representation). Due to the tyranny of geographical distance between the parties, the telephone conference prevailed.

Appeal to the Full Bench

Undeterred, the applicant lodged an appeal to the Full Bench of the FWC. This too failed. In lodging the appeal on the grounds that:

  • Granting the request for legal representation was contrary to the Fair Work Act, apparently on the basis that the Commissioner had allegedly ignored the fact that the ex-employer had been legally represented for two weeks beforehand;
  • That he had not been allowed to appear in person; and
  • The Commissioner made his decision without giving the applicant the opportunity to be heard on his ex-employer’s application for leave to be represented by a lawyer.

The applicant then went on to claim that it would be in the public interest for the Commission to grant permission to appeal for two reasons:  first, that it would be unjust and unfair for a large corporation like his ex-employer to be represented by a large law firm; and second, that it was his “unalienable right” to appear in person.

Whilst dismissing the first two grounds for appeal, the Full Bench ruled in favour on the third point and quashed the initial decision and reallocated it to another Commissioner.

The second hearing

The “new” Commissioner called for written submissions from the parties, with the applicant complaining that the ex-employer’s lawyers had prepared the submission and had not sought permission to appear. It was subsequently found that the lawyer was an employee of the applicant’s ex-employee and therefore fully entitled to appear of the ex-employers behalf.

Whilst the “new” Commissioner accepted the applicant’s explanation that he was unaware of the time limit, he was not satisfied that there were exceptional circumstances. The matter was dismissed.

The second appeal

This time the applicant appealed the second outcome on the following grounds:

  • The Commissioner ought not to have heard the matter as he was a member of the Full Bench that ruled against the Appellant on grounds 1 and 2 of the appeal.
  • The Decision is contrary to the facts and against the evidence with the usual art of lawyer sophistry in convoluting the facts.
  • The Commissioner’s discretion has miscarried and has not been exercised judicially in accordance with the rules of reason and justice. The Commissioner’s Decision is arbitrary and capricious. It was made in accordance with the Commissioner’s private opinion. Further, the Decision was unjust given that s.366(2)(b)(c)(d) and (e) were found in the Appellant’s favour or otherwise given neutral weight.
  • Employers ought not to be allowed to misuse s.596 of the Act by using “shadow” lawyers to represent them without permission in the lead up to the hearing.

In his submissions to the Second Full Bench, the applicant noted that he had strongly objected to his ex-employer’s representation by lawyers, including “shadow lawyers”. He pointed out that, at the hearing, he reiterated his objection and that, although the Commissioner said he would deal with the matter, he never did.

The applicant argued that it was in the public interest that his appeal be allowed on the grounds:

He had been dismissed without a lawful reason and he ought not to be denied the overriding intentions of the Act to deliver justice by at least hearing the case.

The Respondent ought not to be allowed to “get away” with not supplying employment documents to their employees as has been [accepted] by Commissioner Johns at paragraph [19] of the Decision.

Contrary to s.596 and the intention of the Act, the Respondent enjoyed the benefit of legal representation and having its written submissions prepared by lawyers. It was only 1 day prior to the hearing that its lawyers ceased to act. These circumstances are “far more than” what is described as “shadow lawyers” in Fitzgerald v Woolworths.

Pre-empting the second Full Bench’s decision

Even before the second Full Bench had time to hand down its decision, the applicant filed further submissions alleging apprehended bias on the part of members of the Full Bench based on the positions they held before they were appointed to the Commission. But no application was made for the Full Bench to recuse itself.

This did not help. The second Full Bench dismissed both his appeal and supplementary accusation of apprehended bias.

The Federal Court of Australia

Despite this “setback”, the applicant then took his case to the Federal Court of Australia challenging the decision of the Full Bench.

The applicant sought the following relief:

  • A declaration that the decision of the Full Bench was made in jurisdictional error;
  • An order quashing the decision;
  • An order remitting the decision to the Commission for determination according to law; and
  • An order for costs.

The relief was sought on the following three grounds:

  • In considering his application for an extension of time, the Commission failed to give weight to subs 366(2) and its “intentions” and “misused s 366 to deny [his] claim for pedantic reasons”, that is, the applicant’s “well founded continued criticism” of the Commission;
  • The Commission erroneously allowed the ex-employer to be legally represented without permission; and
  • The Commission failed to abide by its own code of conduct.

The Judicial Review

The FC found that the applicant argued his case as an appeal of the second Full Bench’s decision.

“But this is not an appeal. The case comes before the Court in its original jurisdiction. A person who is aggrieved by a decision of the Commission has no right of appeal to this Court. Nor is it a merits review. Rather, it is a judicial review. In such a review, no matter what the Court may think of the decision under review, it cannot inquire into the merits.  The jurisdiction of the Court is a limited one…In the absence of error of law on the face of the record, the Court may only grant relief for jurisdictional error, and the onus is on the applicant to establish that the decision under challenge is affected by jurisdictional error…This proceeding is not a vehicle for reviewing the decision of Commissioner Johns or any of the antecedent decisions”. [Emphasis added]

The FC explained:

“A failure to accord procedural fairness will vitiate an administrative decision…Thus, a decision may be quashed for actual or apprehended bias…Jurisdictional error will also arise if the Full Bench misunderstood the nature of its jurisdiction, misconceived its duty, failed to apply itself to the question it was required to answer, or misunderstood the nature of the opinion it was to form…A mistake of law, however, even as to the proper construction of a statute, does not necessarily give rise to jurisdictional error…”

The Federal Court concluding

“None of the grounds of review has been made out. [The applicant] was not denied procedural fairness. Nor did the Second Full Bench misunderstand the nature of its jurisdiction, misconceive its duty, fail to apply itself to the question it was required to answer, or misunderstand the nature of the opinion it was required to form. Although [the applicant] is understandably disappointed by its decision, the decision of the Second Full Bench is not affected by any jurisdictional error.

“[The applicant] maintained that it was in the public interest to grant permission to appeal and that he was the victim of a grave injustice. He argued that the appeal raised issues of importance and/or of general application, that the decision of the Commissioner was manifestly unjust, and that the legal principle applied by the Commissioner was disharmonious with other decisions on similar matters. All these arguments go to the merits, not the legality, of the decision. It is not for this Court to decide whether it is in fact in the public interest to grant permission to appeal…’

Commentary

Will the applicant appeal to the Full Bench of the Federal Court (he will lose) and then the High Court? He must have deep pockets and plenty of time on his hands.