Mr Danny Vulic v Department of Human Services

[2015] FWC 1872

[2015] FWC 1872

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Application for unfair dismissal remedy

Mr Danny Vulic
v
Department of Human Services
(U2014/8801)

DEPUTY PRESIDENT SMITH MELBOURNE, 20 MARCH 2015

Application for relief from unfair dismissal.

Introduction

[1] Mr Danny Vulic was a casual Youth Justice Worker at the Parkville Youth Justice Precinct (Precinct) in Victoria before he was advised by the Department of Human Service (DHS) on 15 August 2014 that he would not be offered any further shifts. This decision resulted from what DHS found was misconduct by Mr Vulic where he used excessive force on a client. 1

[2] Mr Vulic seeks reinstatement in accordance with s.391(1)(a) of the Fair Work Act 2009 (the Act).

[3] DHS acknowledge that:

● Mr Vulic is a person protected from unfair dismissal,
● The Small Business Fair Dismissal Code does not apply, and
● The circumstances did not give rise to a case of genuine redundancy.

[4] I accept the concessions and find accordingly.

Background

[5] Mr Vulic commenced his casual employment with DHS on 22 November 2010 at the Precinct. A description of the Precinct was given:

The Parkville Precinct is a corrections facility situated in Park Street, Parkville for young male clients aged 15—18. It is designed to provide a safe and secure environment in which young people will develop knowledge, skills and attitudes to manage their lives effectively without further offending. It currently has two, 13 bed and four, 15 bed residential units.

Many of the clients at the Parkville Precinct have a propensity to engage in criminal behaviour and have been convicted of serious criminal offences. The Parkville Precinct is a prison environment. 2

[6] On 29 April 2014 it was alleged that Mr Vulic used excessive force on a client by grabbing him by the throat during a restraint. The allegation was:

It is alleged that on 29 April 2014, in your role as a Youth Justice Worker Grade 1, you breached your duty of care to clients; section 3 (demonstrating integrity), and section 6 (demonstrating respect), of the Code of Conduct for Victorian Public Sector Employees (No. 1) 2007; the department’s Values of Client Focus, Professional Integrity and Respect; the Youth Justice Custodial Services’ (YJCS) Operations Manual and Preventing Violence Physical Restraint Training Manual (POV), by using excessive force on a client of YJCS. 3

[7] Critical to this case are two matters. Firstly, the allegation of unnecessarily initiating a restraint on the client and secondly, whether or not Mr Vulic grabbed the client by the throat. Mr Vulic gave evidence that the restraint was necessary, but denies grabbing the client’s throat. He agrees that he applied pressure to the upper body given the history and strength of the client.

[8] It should be stated at this stage that CCTV footage was available for viewing during the proceedings. I viewed the footage and it was used to examine and cross-examine witnesses.

The evidence

[9] I turn firstly to consider whether or not the restraint was necessary on the client. It appeared to be uncontroversial that the client had a history of violent and aggressive behaviour. On the day in question Mr J. Oddo was giving instructions to the client which was provoking an argument from the client. It was the evidence of Mr Vulic that he held back given that Mr Oddo had a rapport with the client, but the aggression seemed to be escalating. It was the evidence of Mr Vulic that Mr Oddo gave a prearranged signal to Mr Vulic to assist by glancing in his direction. 4

[10] Mr Oddo, who appeared as a result of a summons to attend, gave evidence on this aspect. Mr Oddo had worked at the precinct for more than 14 years. The following extract from transcript describes the circumstances from Mr Oddo’s point of view:

Mr Vulic has said that you’ve looked toward him?---Yes.

Or looked to him as a signal. What do you say to that?---Yes, I concur. I did look to him.

That you looked towards him?---Yes, absolutely.

What was RT’s demeanor jut prior to you looking towards him?---RT had escalated to a point where he had puffed his chest out, which is a clear signal with RT. He’d puffed his chest out. He had put his nose pretty close to my nose and, yes, it was - sorry, to say, but it was going to be on.

Were you aware that he’d assaulted staff previously?---Yes, of course.

You were?---Yes.

So did that cause greater apprehension to you, knowing that he’d assaulted other staff previously and he was acting this way towards you?

THE DEPUTY PRESIDENT: Mr Petrovic - - -

MR PETROVIC: Sorry, I’m leading a little bit.

THE DEPUTY PRESIDENT: I was going to say, Ms Fawcett is being very generous to you at the moment.

MR PETROVIC: Yes, I’ll move on.

THE DEPUTY PRESIDENT: You want to elicit evidence that I can rely upon, so I just invite you to reflect on the way in which you ask questions.

MR PETROVIC: Sure. Thank you, sir.

Explain what happened when?---Sorry, when?

MR PETROVIC: After you said that you looked towards Mr Vulic what took place then?---I signalled Danny, Mr Vulic, and we engaged in a restraint which unfortunately didn’t go according to our procedures.

Did you at any time see Mr Vulic or any other staff use what you would consider excessive force during that incident?---No, not at all. I might, if I may - - -

THE DEPUTY PRESIDENT: Yes, of course?---I would like to add that RT, in my 14 and a half years’ experience, even when he was 14 years old, was the hardest client I’ve ever had to be involved in a restraint with. I’ve dealt with some seriously big boys in my time and he threw me off with one arm. So, you know, sometimes force is necessary.

MR PETROVIC: How strong was he?---Extremely strong. I’m 130 kilos and - I’ve not seen the footage at all. I’ve only seen up to that point, but I remember him, if I remember correctly he was kind of throwing me off with his arm. 5

[11] And later under cross-examination:

You said that you signalled to Mr Vulic. What’s the purpose of that signal?---The purpose of a signal is to initiate a restraint because it has escalated to a point where it’s not possible to de-escalate - well, what I believe was not possible to de-escalate.

What was your signal to him on this occasion?---It was a glance.

A glance?---Yes. We use different signals at different times. 6

[12] When Mr Oddo was challenged as to why this threat was not included in his report the following exchange took place:

What I’m saying is that the reason it wasn’t is because there was no signal. What do you say to that?---I say that’s rubbish. Of course there was a signal.

And there were no threats?---Of course there were threats. 7

[13] I have seen the video as did the General Manager of the Precinct. I also note that the General Manager did not interview Mr Oddo or any other person involved in the incident. 8 On this aspect of the evidence I find that Mr Vulic acted in accordance with the need to maintain control of the situation following a signal from Mr Oddo. This was the only direct evidence and it supports the version of events stated by Mr Vulic.

[14] I turn now to the allegation that he used excessive force by grabbing the throat of the client during the restraint. To begin, the client made a complaint that Mr Vulic “grabbed him around the throat”. 9 The evidence of Mr Vulic is equivocal. To begin, he relies upon what can or can’t be seen in the video footage rather than giving a positive response one way or the other. Mr Vulic said that he had him “around the back of the head”.10 Similarly, he stated that he had his arm on his shoulder. Towards the end of the cross-examination, Mr Vulic said it was not true that he put his hands on the client’s throat.11

[15] Following the incident, a report was created by Ms Wilkins 12 which described a physical assault staff to client. In the report it states that a review of the CCTV footage showed Mr Vulic had his hand around the client’s throat. Further, photographs were taken which showed red marks on the client’s throat.

[16] I pause to note that Mr Oddo was not questioned on whether or not Mr Vulic grabbed the client by the throat.

[17] The final witness was the General Manager, Mr James McCann. Mr McCann did not interview any of the persons involved but saw the CCTV footage and had a report from the People and Culture Branch of DHS. A key statement in that report is contested. The report states that Mr Vulic made a verbal admission. There is no evidence to suggest that this occurred and indeed it was retracted by the employer. 13

[18] Mr McCann’s decision to dismiss was based on the CCTV footage together with an earlier final warning for assaulting a client. During cross-examination, Mr McCann agreed that other members of the team dealing with the client also had their arms holding the neck or head.

[19] I have viewed this footage. This is a confronting environment and it is clear that a number of Youth Justice Workers had arms or legs around the clients face, neck and body. However, I also see that in the opening seconds of the confrontation that Mr Vulic appears to grab the client around the neck.

[20] Even applying the test in Bringinshaw v Briginshaw 14 I have reached a level of satisfaction that Mr Vulic hands did go to the throat of the client. I am fortified in this conclusion by the equivocal evidence given by Mr Vulic and his apparent reliance upon what he regarded as uncertain footage. My viewing supports the conclusion of both Ms Wilkins and Mr McCann. From my viewing of the footage it is hard to differentiate the force used by Mr Vulic with that used by others involved in the restraint, although it must be said that the initial force to the throat of the client appeared aggressive. The marks on the throat of the client would be consistent with such action by Mr Vulic.

[21] I note at this stage that the Police were advised of this incident as it was put that the use of excessive force was a criminal offence. The Police took no action.

Statutory Considerations

[22] The Commission is directed to s.387 of the Act when considering whether or not a dismissal was harsh unjust or unreasonable and it is to those statutory criteria that I now turn:

387 Criteria for considering harshness etc.

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

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

[23] In this connection, I find there was a valid reason for the termination of employment relating to the conduct of Mr Vulic in grabbing the client’s throat. I am satisfied that sufficient training had occurred to ensure that all employees understood the importance of dealing with people in a respectful way in circumstances where they had lost their liberty.

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

[24] I am satisfied that Mr Vulic was notified of the reason for his dismissal.

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

[25] I am satisfied that Mr Vulic had the opportunity to respond, although I am concerned at some aspects of the investigation. There appeared to be a largely unstated concern that employees would not be truthful in relation to the incident. Further the investigation was seriously flawed by the conclusion that Mr Vulic made admissions.

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

[26] I am satisfied that there was no unreasonable refusal to allow a support person.

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

[27] This is not a directly relevant consideration in this case.

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

[28] There is no issue to consider in relation to this criterion.

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

[29] There is no issue to consider in relation to this criterion.

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

[30] There are a number of matters which I consider to be of relevance. The first is that this can be a confronting workplace where individuals are deprived of their liberty and demonstrate aggression and other inappropriate behaviors. Youth Justice Workers have to endure many aspects of completely inappropriate behavior from clients. Theirs is not an easy role. However, that is why there is such strict and comprehensive training which occurs. The training is directed specifically towards legal and policy parameters. For example the training manual contains the following references:

● Children and Young Person Act 1989
● Intellectually Disabled Persons’ Services Act 1986
● Disability Services Act 1991
● Mental Health Act 1986
● Standards to guide the delivery of Juvenile Justice Custodial Services (Department of Human Services—2004)
● Duty of Care (Department of Human Services—2000)
● Protocol between Disability Services and Juvenile Justice Guidelines for Workers (Department of Human Services—2005)
● Protocol between mental Health Branch and Juvenile Justice Program (Department of Human Services—2005).

[31] Mr Vulic has a Bachelor of Arts in Justice Administration and this together with his training leads me to conclude that he is sufficiently aware of his role and responsibilities when operating in the Juvenile Justice System.

[32] The other relevant factor is that Mr Vulic was on a final warning for physically assaulting a client in 2012. The final relevant factor is the possible impact of the termination of employment on Mr Vulic’s career in Juvenile Justice.

Conclusion

[33] Having found that there was a valid reason for terminating the employment of Mr Vulic and after considering and weighing all of the matters required by s.387 of the Act, I find that the termination of Mr Vulic’s employment was not harsh, unjust or unreasonable.

DEPUTY PRESIDENT

Appearances:

D. Petrovic, Solicitor for the Applicant.

A. Forsyth, of Counsel on behalf of the Department of Human Services.

Hearing details:

2014.

Melbourne:

December, 4.

Final written submissions:

D. Petrovic, 26 January and 20 February 2015.

A. Forsyth, 13 February 2015.

 1   Persons imprisoned at the Precinct are referred to as clients.

 2   Exhibit DHS 4—witness statement of James McCann, General Manager at paragraphs 5 and 6.

 3   Ibid, Attachment JM10; Allegation 1.

 4   Transcript PN81.

 5   Transcript PN664—681.

 6   Transcript PN709—711.

 7   Transcript PN729—730.

 8   Transcript PN871.

 9   See Exhibit DHS2—attachment KW2.

 10   Transcript PN335.

 11   Transcript PN461. See also PN507.

 12   Acting Operations Manager—see also exhibit DHS2.

 13   Transcript PN863.

 14 (1938) 60 CLR 336.

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