Barac, Brian v Central Sydney Area Health Service

[1998] FCA 1162

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW – Industrial Relations Act 1988 (NSW) – termination of employment of worker – whether valid reason for dismissal connected with employee’s conduct

Industrial Relations Act 1988 (NSW) ss 170DB(1), 170DC, 170DE(1)

BRIAN BARAC v CENTRAL SYDNEY AREA HEALTH SERVICE
NI 3809 of 1995

BRANSON J

SYDNEY
17 SEPTEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 3809  of   1995

BETWEEN:	BRIAN BARAC APPLICANT
AND:	CENTRAL SYDNEY AREA HEALTH SERVICE RESPONDENT
JUDGE(S):		BRANSON J
DATE OF ORDER:		17 SEPTEMBER 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The decision of the judicial registrar be affirmed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 3809 of 1995

BETWEEN:	BRIAN BARAC APPLICANT
AND:	CENTRAL SYDNEY AREA HEALTH SERVICE RESPONDENT

JUDGE(S):	BRANSON J
DATE:	17 SEPTEMBER
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

The applicant, Brian Barac (“Mr Barac”) was employed at Royal Prince Alfred Hospital (“RPAH”) from 14 July 1986 to 6 September 1995.  He initially worked as a theatre orderly and then, from 28 October 1991, as a trainee anaesthetic technician.  The respondent is a body corporate constituted by s 17 of the Health Services Act 1997 (NSW). RPAH is a public hospital conducted and managed by the respondent.

On 6 September 1995 Mr Barac’s employment at RPAH was terminated.  Mr Barac brought proceedings under the then Industrial Relations Act 1988 (Cth) (“the Act”) claiming reinstatement or compensation.

Section 170DB(1) of the Act provides:

“An employer must not terminate an employee’s employment unless:

(a)the employee has been given either the period of notice required by subsection (2), or compensation instead of notice; or

(b)the employee is guilty of serious misconduct, that is, misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period”.

Section 170DC of the Act provides:

“An employer must not terminate an employee’s employment for reasons related to the employee’s conduct or performance unless:

(a)the employee has been given the opportunity to defend himself or herself against the allegations made; or

(b)the employer could not reasonably be expected to give the employee that opportunity.”

Section 170DE(1) of the Act provides:

“An employer must not terminate an employee’s employment unless there is a valid reason, or valid reasons, connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.”

A judicial registrar held that the respondent had a valid reason for terminating Mr Barac’s employment without notice and had not failed to give Mr Barac an opportunity to defend himself against the allegations made.  She dismissed his application.  The application before me is an application for review of the decision of the judicial registrar.

MR BARAC’S CONDUCT

It is not suggested that the termination of Mr Barac’s employment was based on the operational requirements of the respondent as a whole or of the RPAH.  The reason for the dismissal is contended by the respondent to be connected with Mr Barac’s conduct.  The case of the respondent may go so far as to suggest that Mr Barac’s conduct reflected adversely on his capacity to perform appropriately the duties of a trainee anaesthetic technician.

The following examination of the circumstances surrounding the termination of Mr Barac’s employment reflect my findings of fact on the evidence before me.  There was in reality little dispute between the parties as to the primary facts in this case; the dispute between them was largely as to the significance of those facts.

The dismissal of Mr Barac was precipitated by an incident on the afternoon of 5 September 1995 and a further incident on the morning of 6 September 1995.  It is necessary to give consideration to those incidents, and for completeness, to at least one earlier incident which had occurred on 4 September 1995.

On 4 September 1995, which was a Monday, Mr Barac was working in the cardio-vascular theatres at Page Chest Pavilion.  He had an arrangement with RPAH whereby he could ordinarily leave work at 4.00pm on Mondays to attend ante-natal classes in a nearby building with his partner.  The ante-natal classes commenced at 6.00pm.  The senior anaesthetic technician in Page Chest Pavilion on 4 September 1995 was Brian Rory Thrift (“Mr Thrift”).  At about 3.45pm on that day, Mr Thrift was notified by the Charge Sister of an emergency which would probably necessitate the use of a theatre when one became available that afternoon.  Mr Thrift formed the view that a theatre would become available for an emergency operation at approximately 5.00pm.  Mr Thrift made a judgment that if Mr Barac left at 4.00pm there may be insufficient anaesthetic technicians to handle the expected emergency operation.  He consulted Mr De Meglio, the Deputy Chief Anaesthetic Technician who advised him that no spare anaesthetic technicians were available and that he should ask Mr Barac to stay back.  Dr Jones, the Deputy Director of the Department of Anaesthetics at RPAH, confirmed that Mr Thrift should ask Mr Barac to stay back if he (ie. Mr Thrift) thought it necessary to do so.

At approximately 3.50pm on 4 September 1995 Mr Thrift asked Mr Barac to stay until 4.30pm so that Mr Thrift could assess at that time the need for anaesthetic technicians to remain on duty.  Mr Thrift indicated to Mr Barac that he might be required to stay on duty until 5.00pm but that he would not be late for his ante-natal class.

At about 4.20pm on 4 September 1995 Mr Barac entered the anaesthetic room where Mr Thrift was speaking with another anaesthetic technician.  Mr Barac was in an agitated state.  His demeanour was threatening: he was speaking loudly, waving his hands around and standing close to Mr Thrift.  Mr Barac asserted to Mr Thrift that there was no necessity for his remaining on duty.  He made certain immoderate remarks and indicated that he was leaving.  Mr Barac did leave.  His evidence was that he wished to go home to have dinner and collect his partner before the ante-natal class.

Although I do not regard it as a material factor, I note that the evidence establishes that the operations being conducted in the three Page Chest Pavilion theatres on that afternoon all came to an end at approximately 5.00pm.  As a result of Mr Barac’s departure, one anaesthetist was required to extubate a patient without the assistance of an anaesthetic technician.  I am satisfied on the expert evidence before me that extubation is a critical phase of an anaesthetic and that it is desirable in the interests of patient safety for an anaesthetist to have the assistance of a technician in performing the procedure.

The reason why I do not regard what did happen in the Page Chest Pavilion theatres late in the afternoon of 4 September 1995 as material is as follows.  I do not understand it to have been suggested by Mr Barac (and if it was so suggested, I reject the suggestion) that Mr Thrift acted in bad faith or outside his authority in requiring Mr Barac to remain on duty until 4.30pm, and in alerting him to the possibility that he might be required to remain until 5.00pm.  In those circumstances it was not for Mr Barac to judge whether there was a necessity for him to remain.  This was the responsibility of others.  The control of risk to patients in the performance of operations is an important matter for any hospital.  The appropriateness of a staffing decision taken in the interests of patient safety is not to be measured by reference to whether a problem affecting patient safety actually arose, but, in the circumstances of this case, by reference to the appropriateness of the decision to require Mr Barac to remain on duty having regard to the circumstances which prevailed at the time that the decision was taken.  The decision taken by Mr Thrift to require Mr Barac to remain on duty until 4.30pm, and possibly 5.00pm, in the circumstances which then prevailed was an appropriate one. Nothing which happened between the time that Mr Thrift made his decision and advised Mr Barac of it, and the time when Mr Barac left the hospital, affected the appropriateness of the decision.

On 5 September 1995, Mr Barac approached Mr Thrift on a number of occasions seeking permission to take first, a morning tea break, and later a luncheon break.  On that day Mr Barac eventually took a morning break without approval and at a time that Mr Thrift judged that patient safety required Mr Barac to remain on duty.  Later in the day Mr Barac behaved aggressively and rudely towards Mr Thrift when pressure of work in the theatres made it necessary, in Mr Thrift’s judgment, for all anaesthetic technicians to take their luncheon breaks late. Again, I find that Mr Thrift’s judgment on these occasions was sound.

On the morning of 6 September 1995, Mr Barac again refused to act on directions given to him by Mr Thrift.  Later that day, apparently after reading a memorandum from the Human Resources Manager, referred to in detail below, which had been handed to him the previous day by Mr Thrift, Mr Barac confronted Mr Thrift.  On this occasion Mr Barac rushed towards a room which Mr Thrift had just entered and forced a door open as Mr Thrift sought to prevent his entering the room.  In doing so, Mr Barac hit his head on the door.  When inside the room, Mr Barac shouted and gesticulated at Mr Thrift in a manner which reasonably led Mr Thrift to fear that he might be physically attacked by Mr Barac.  Mr Barac said to Mr Thrift, in a loud and angry voice, referring to the letter from the Human Resources Manager, words to the effect: “What’s this bloody fucking bullshit”.  Mr Barac refused to leave the room when requested by Mr Thrift to do so.  Mr Thrift eventually left the room.  I do not accept the evidence of Mr Barac that he walked calmly towards the room in which Mr Thrift was working and only became agitated when he suffered a blow to the head from a door as Mr Thrift attempted to shut the door to prevent his entry.  I am satisfied that Mr Thrift sought to prevent Mr Barac’s entry into the room because Mr Barac’s manner of approach to the room caused him to be apprehensive about what might follow if Mr Barac entered the room. I find  that is was reasonable of Mr Thrift to have been apprehensive in the circumstances.

On the afternoon of 6 September 1995, Mr Barac was dismissed from his employment at RPAH without notice or compensation in lieu of notice.  The letter of termination which Mr Barac received is signed by Mr Bridgewood, the RPAH Human Resources Manager, who was authorised by the respondent to terminate Mr Barac’s employment.  The letter is in the following terms:

“I have received a report that on the afternoon of 5 September 1995 and also on the morning of 6 September 1995, in complete contravention of a letter you had received earlier on 5 September 1995, you verbally abused Mr Brian Thrift in an extremely aggressive and threatening manner.

As a consequence of this and also other serious matters, the Deputy Chief Executive Officer has directed that your services be terminated immediately.

Payment in respect of any accrued leave that is to your credit will be deposited in your account”.

Mr Barac found the circumstances of his summary dismissal distressing. He was escorted from his place of work to an interview with Mr Bridgewood by security officers. After his dismissal the security officers escorted him from RPAH.  This proceeding is concerned principally with the validity of the reason for Mr Barac’s dismissal: Qantas Airways Limited v Bruce Cornwall (unreported, Full Federal Court, 24 July 1998). The proceeding is concerned also with whether sections 170DB(1) and 170DC of the Act were complied with. I record, however, that I am satisfied that it was not inappropriate for security officers to provide an escort for Mr Barac on 6 September 1995. There were, in my view, reasonable grounds upon which the respondent was apprehensive that Mr Barac might, if not so escorted, have acted in a way which was disruptive to patients or threatening to Mr Thrift.

CONSIDERATION

I conclude, having regard particularly to the letter of termination received by Mr Barac, that the reason why Mr Barac’s employment with RPAH was terminated was his conduct towards Mr Thrift on the afternoon of 5 September 1995 and the morning of 6 September 1995.  Although the letter refers also to “other serious matters”, I do not understand those matters themselves to constitute reasons for Mr Barac’s dismissal.  Rather, it being industrially unrealistic to view the conduct of Mr Barac on the morning of 5 September and the afternoon of 6 September in isolation, the reference to “other serious matters” is to be understood as a reference to past events which provided a context in which Mr Barac’s conduct on the two identified occasions was assessed by the respondent.

Evidence was led which touched on Mr Barac’s work performance and conduct from as early as 1988.  Much of this evidence is irrelevant to the question of whether the respondent had a valid reason to terminate Mr Barac’s employment on 6 September 1995.  It is sufficient, in my view, for consideration to be given to a limited class of evidence, namely that which touched upon Mr Barac’s tendency to engage in aggressive behaviour in the workplace and to challenge or ignore directions given to him by those authorised to do so.

A suitable starting point for considering such evidence is 28 September 1994 when Mr Barac attended a meeting at which Mr Thyssen, the Chief Anaesthetic Technician at RPAH, Mr Thrift, Mr Lewandowski of Personnel Services of RPAH and a representative from Mr Barac’s union, the Health and Research Employees Association, were also present.  On 29 September 1994, Mr Lewandowski sent to Mr Barac a memorandum concerning the outcome of the previous day’s meeting.  The accuracy of the memorandum was accepted by Mr Barac.  The memorandum records, amongst other things, that:

“Over the last 2 weeks I [ie. Mr Lewandowski] have been involved in a number of meetings that have centred around reports written about your behaviour.  Our discussion yesterday was an effort to set some broad standards of acceptable behaviour and methods of dealing with problems that may arise should those standards not be met.

In relation to the standards of acceptable behaviour we agreed that there was a need to maintain open communication channels and that good teamwork was ensured.  Communication involves the free and respectful interaction of information between both your supervisors and yourself but particularly we stressed the need for a reduction in aggressive behaviour and “one-upmanship” and an increase in honest discussion. Teamwork is essential within an environment which is stressful and does not offer easily defined work-roles or scheduling.  In particular we agreed that any reasonable (ie safe) direction given by either the Senior or Anaesthetist must be followed and if there are any objections these should be respectfully raised after the task has been carried out.  The co-ordination of all breaks should be done through the senior and this includes leaving the work area for your own business.  Co-operation must be achieved if the work area is to operate efficiently”.

On 15 June 1995 a meeting was held between Mr Barac and Mr Thyssen at which a letter received by Mr Thyssen from a Senior Anaesthetic Technician, Ms Lynn Booth, was discussed.  By letter dated 16 June 1995 addressed to Mr Barac, Mr Thyssen confirmed that at the meeting of 15 June 1995 Ms Booth’s complaints concerning Mr Barac’s “aggressive and threatening attitude in the workplace” and his “lack of co-operation and unaccommodating manner” had been extensively discussed.  Mr Thyssen’s letter concluded:

“Brian, once more I strongly suggest that you make every effort to avoid any confrontations and endeavour to be more obliging towards your fellow workers.  I wish to point out that at this time Miss Booth’s letter of complaint will remain on file within the Anaesthetic Department records and may, at a later date, be used against you if we are confronted with a similar set of circumstances …”.

On 18 August 1995 a further meeting was held to discuss, amongst other things, concerns relating to aggressive and harassing behaviour by Mr Barac towards technicians.  Present at the meeting were Mr Barac and a representative of his union, Messrs. Bridgewood and Lewandowski of the Personnel Services Department, Professor Baker, Head of the Department of Anaesthetics and Mr Thyssen.  Mr Thyssen prepared a memorandum dated 25 August 1995 concerning the meeting.  The memorandum records that during the meeting “emphasis was placed on the acceptable behaviour towards work colleagues in the operating theatres”.  I accept that the topic of acceptable behaviour towards work colleagues in the operating theatres was discussed at the meeting in the context of concerns expressed by others as to Mr Barac’s behaviour.

By memorandum dated 5 September 1995, addressed to Mr Barac, on the topic “Conduct Requirements”, Mr Bridgewood advised, amongst other things:

“The matters that were discussed with you at the meeting held on 18 August 1995 have been drawn to the attention of CSAHS senior management and they wish you to know of their intention to rid this organisation of any staff member who adopts an aggressive and threatening manner towards work colleagues.
…
A perusal of your file indicates that many complaints have been made about your intimidatory manner, attitude and disruptive behaviour”.

The memorandum lists seven instructions with which Mr Barac was required to comply.  One of the instructions is as follows:

“4.You will not be permitted to harass or intimidate staff, ie. if you are talking to a staff member and they ask you to leave them alone you must immediately cease the conversation”.

The memorandum concluded:

“Non-compliance or disregard of these conditions will result in your services being terminated”.

I am satisfied that Mr Barac’s conduct on the afternoon of 5 September 1995 and the morning of 6 September 1995, viewed in the context of the warnings which Mr Barac had received concerning his behaviour towards his work colleagues and his supervisor, provided a valid reason for the termination of his employment within the meaning of s 170DC of the Act. Had Mr Barac’s behaviour on those occasions been uncharacteristic, it might have been appropriate for the respondent to investigate more deeply the reasons behind Mr Barac’s conduct. However, the behaviour was not uncharacteristic of Mr Barac’s behaviour in the workplace. Had such behaviour by Mr Barac on earlier occasions failed to attract criticism, it might have been inappropriate for it to lead on this occasion to termination of his employment. However, not only had earlier comparable behaviour by Mr Barac attracted criticism, he had received warnings that repetition of such behaviour might lead to his dismissal from his employment.

I am further satisfied that in all of the circumstances Mr Barac was, on the afternoon of 5 September 1995 and the morning of 6 September 1995, guilty of misconduct of a kind such that it would be unreasonable to require the respondent to continue his employment during a period of notice (s 170DB(1) of the Act). Mr Barac’s misconduct was of a kind that was seriously disruptive of the smooth and safe operation of RPAH.

In addition I am satisfied that Mr Barac was given the opportunity to defend himself against the allegations made.  As is mentioned above, on two separate occasions formal meetings were held at which Mr Barac’s tendency to conduct himself in the workplace in an aggressive and threatening way were discussed.  Mr Barac attended these meetings, and enjoyed the benefit of union representation at them.  I am satisfied that at these meetings Mr Barac had the opportunity to defend himself against the allegations then made against him.  As to the particular incidents which occurred on the afternoon of 5 September 1995 and the morning of 6 September 1995, Mr Bridgewood gave evidence, which I accept, that after receiving reports concerning Mr Barac’s conduct on 5 and 6 September 1995, and reviewing Mr Barac’s personnel file, he arranged to meet Mr Barac.  At that meeting the following exchange took place between Mr Bridgewood and Mr Barac:

Barac:            “What’s all this about?”

Bridgewood:    “Brian, I think you may well be aware of what this is all about. It is about the incidents which occurred between yourself and Brian Thrift this morning and yesterday.  From what I have been told, what you have done is that you have totally disregarded the matters I raised with you in my letter of yesterday.  You have been acting aggressively again.  What do you have to say?”

Barac:“I was upset with Thrift.  He closed the door in my face”.

Bridgewood:    “This does not justify your aggressiveness and you have been warned about this before.  You don’t leave me with any choice”.

It is to be observed that during the above exchange Mr Barac did not deny that he had behaved aggressively towards Mr Thrift.  He sought to justify his having done so.  His justification was without merit.  As is mentioned above, had Mr Barac’s aggressive behaviour on 5 and 6 September 1995 been uncharacteristic of him, his purported justification would have warranted further inquiry by Mr Bridgewood.  However, Mr Barac’s ongoing aggressive behaviour in the workplace had been the subject of criticism, counselling and warnings in the past.  His apparent unwillingness or inability to recognise that it was unjustifiable for him to resort to aggressive behaviour on occasions whenever he felt that the behaviour of others towards him was inappropriate, strengthened, rather than undermined, the justification for the immediate termination of his employment by the respondent.

The decision of the Judicial Registrar is affirmed.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson

Associate:

Dated:             17 September 1998

The Applicant appeared in person
Counsel for the Respondent:	Mr R F Crow
Solicitor for the Respondent:	Baker & McKenzie
Date of Hearing:	28, 29, 30 July, 3 August 1998
Date of Judgment:	17 September 1998