Brian John Verity v Ballarat Health Services, Grampians Health
[2023] FWC 2866
•1 NOVEMBER 2023
| [2023] FWC 2866 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brian John Verity
v
Ballarat Health Services, Grampians Health
(U2023/9685)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 1 NOVEMBER 2023 |
Application for an unfair dismissal remedy – application made outside of 21-day time limit - no exceptional circumstances present – extension of time not granted – unfair dismissal application dismissed.
Introduction
This decision concerns an application made by Mr Brian John Verity (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act). The Applicant who was employed by Grampians Health formerly Ballarat Health Services (the Respondent) alleges he was dismissed on 25 August 2023. The unfair dismissal application was lodged by the Applicant on 5 October 2023.
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 394(2) of the Act. As the dismissal took effect on 25 August 2023 the period of 21 days ended at midnight on 15 September 2023. The application was therefore filed 20 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3) of the Act.
The application for an extension of time to file the unfair dismissal application was set down for determinative conference/hearing on 31 October 2023 in advance of which both parties filed material in accordance with directions issued.
Background and evidence
The Applicant commenced employment with the Respondent as a Security Officer on 21 September 2015. He states that during his almost 9 years of employment with the Respondent he was not subject to any disciplinary action prior to the events leading to the termination of his employment.
The Applicant states that at approximately 5.45pm on 7 August 2023 he was assaulted while performing his duties in the ‘resus 1’ area of the Emergency Department at the Grampians Health Ballarat hospital. He states that because of the incident he suffered head injuries resulting in bruising and headaches, a bite to his left wrist, broken ribs, shock and stress. The Applicant was subsequently notified by way of a letter on 9 August 2023[1] (Allegations Letter) that concerns regarding his conduct during and immediately following the incident on 7 August 2023 had arisen and that given the nature of those concerns he was to be suspended on pay pending a formal disciplinary investigation.
The Allegations Letter alleged that he had engaged in a physical altercation in the workplace, that the conduct was inappropriate, that it was in breach of the Respondent’s Working Together Policy and constituted a form of serious misconduct. The Allegations Letter then went on to detail the alleged conduct of the Applicant in responding to the aggression displayed by a patient with a history of Alzheimer’s and dementia who required physical restraint. It was alleged that while the Applicant was attempting to restrain the patient, the patient managed to get an arm free and struck the Applicant in the face three times in response to which the Applicant was said to have then punched the patient in the face. The patient suffered a cut to his bottom lip while the Applicant suffered a skin tear to his right hand/knuckle as well as a skin tear/scratch to his left arm arising from physically restraining the patient. The Allegations Letter went on to say that following the incident, those involved and who had witnessed the incident gathered at the desk of ‘resus 1’ to discuss the incident. During this discussion it was alleged the Applicant said words to the effect of “I got one back on him” and “I’m glad I got one back on him”.
On 11 August 2023, the Applicant attended a formal interview and in doing so opted to not be accompanied by a support person or representative. On completion of the formal investigation the Applicant received a letter from the Respondent dated 17 August 2023[2] which set out the findings and preliminary outcome of the investigation (Findings and Preliminary Outcome Letter). The Applicant was advised in the letter that the Respondent had concluded the allegations were substantiated and that his conduct constituted misconduct warranting a disciplinary outcome. The Respondent also extended a further and final opportunity for the Applicant to present any additional information verbally or in writing for the Respondent to consider as to why termination of the Applicant’s employment would not be a reasonable course of action. A written response if preferred by the Applicant was required to be provided by no later than 5.00pm on 21 August 2023.
On 19 August 2023, the Applicant responded in writing[3] (19 August Response) to the Respondent. In the 19 August Response the Applicant stated that he was the victim of a sustained and unprovoked assault, that the patient had struck him three times and had also attempted to kick and bite him. The Applicant further stated in his response that his action of punching the patient was in self-defence and that he used reasonable force to stop the patient assaulting him. The Applicant also raised several other mitigating factors in his response including that;
·the patient who assaulted him was younger and physically stronger than he was;
·the hospital provided body worn cameras were not fit for purpose;
·the hospital had failed to provide ongoing training for staff in how to respond to violence and aggression;
·there were insufficient numbers of security staff available and/or other staff that were adequately trained to assist in such incidents;
·when he made the alleged inappropriate comments immediately following the incident, he was in shock and suffering from the effects of the assault; and
·during his nine years of employment with the Respondent, he had never been subject to any disciplinary action and that he had struggled with his responses to questioning during the 11 August 2023 meeting.
On 25 August 2023, the Respondent sent a letter[4] (Letter of Termination) to the Applicant advising of the disciplinary investigation outcome and advised that after considering the Applicant’s responses to the allegations it had concluded that on the balance of probabilities the allegations had been substantiated. Specifically, it was found that the Applicant had engaged in a physical altercation by punching a patient in the face and that placing the Applicant back in the workplace would present a serious and imminent risk to the safety of the Applicant, other employees and patients. The Applicant was further advised that the Respondent had decided to terminate his employment with immediate effect but in consideration of his length of service, he would receive five weeks’ salary in lieu of notice.
On 11 September 2023, the Applicant underwent a chest x-ray[5] which indicated injury to his right 5th and 6th ribs laterally possibly due to a fracture. The report suggested a CT scan be undertaken to confirm. No other issues were identified in the x-ray. The Applicant conceded during cross-examination that the x-ray did not confirm rib fractures and suggested a CT scan be obtained which he advised he did not subsequently obtain. The Applicant also agreed that the pain of the suggested rib fractures receded over time such that he was not prevented from engaging in the disciplinary process or preparing with some assistance his 19 August Response.
The Applicant also obtained a medical report[6] from his GP Dr Zia Ahmed dated 18 October 2023 which relevantly states as follows;
“…………….
He has been intermittently unwell since major surgery post various complications since Nov 2019. Earlier this year he had 3 months off work to try and regain his health.
Following his termination from BHS (25/8/2023) he tried to cope with his physical and mental injuries. For his ongoing rib cage pain, Chest Xray revealed two broken ribs, right 5 & 6th. This rib fractures has been sustained post being assaulted on 7/8/23 which was contributed to his hospitalisation.
Brian was shocked and devastated by his termination 2 and half weeks after being assaulted. His mental state was fragile and he has felt humiliated and vulnerable to finishing his career like this. He stated that no one from BHS offered him alternative strategies he could have used in that situation and no one from BHS also contacted him following that incident.
Mr Verity is reluctant to seek counselling and psychological help as he thought it would be not helpful enough. Immediate post termination, he could find any alternated options to cope with this situation.
………..”
The Applicant was questioned about the medical report prepared by Dr Ahmed. He accepted that the report was prepared almost eight weeks after his dismissal on 25 August 2023. He also accepted that much of the information contained in Dr Ahmed’s report simply re-stated what the Applicant had reported to Dr Ahmed.
During cross examination, the Applicant was also questioned about his admission to hospital with pneumonia that he referred to in his submissions. He stated that the hospital admission occurred approximately four weeks after the incident of 7 August 2023 and that he was admitted for three nights. When pressed on the dates of admission he was unable to confirm those dates. He did however advise that prior to and following his admission he was at home and living independently with the support of his wife. He also confirmed that he has access to a computer at home and that he was unaware of the 21-day filing requirement until sometime after the 21-day period had passed.
Should an extension of time be granted?
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances.’ Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[7] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[8]
The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.
Reason for the delay
As earlier stated, for the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 15 September 2023. The delay is the period commencing immediately after that time until 5 October 2023, although circumstances arising prior to that day may be relevant to the reason for the delay.[9]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[10] An applicant does not need to provide a reason for the entire period of the delay although the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay[11].
The Applicant submits that following his dismissal he was in shock and suffering from poor mental health. He further submits that following his dismissal he was feeling depressed, suffering from headaches and chest pains which were eventually diagnosed as two broken ribs, was also feeling generally unwell which eventually developed into pneumonia which required hospital admission. He states that his poor mental and physical health in the wake of his dismissal was such that he was not in a fit state to seek assistance to submit an unfair dismissal application within the 21-day time frame.
The reason for the delay in filing the Application is said by the Applicant to be due to his general physical and mental health in the wake of his dismissal. The probative medical evidence available is limited to an x-ray dated 11 September 2023 suggesting rib fractures sustained in the incident of 7 August 2023 and a medical report provided by the Applicant’s GP dated 18 October 2023. The Applicant also reports having been admitted to hospital for three days with pneumonia approximately four weeks after the 7 August 2023 incident although he could not identify the actual dates of hospital admission. If the Applicant’s estimate of the hospital admission’s timing of being approximately four weeks after the 7 August 2023 incident is correct, that would place the three-day hospital admission to a period on or about 4-6 September 2023.
Turning to the medical evidence before me. The evidence regarding the rib fractures claimed to have been sustained by the Applicant is limited to the x-ray which suggested a CT scan be undertaken to confirm the fractures. The Applicant agreed that the fractures were not subsequently confirmed by CT scan. However, even accepting the Applicant’s evidence at its highest that he sustained two rib fractures during the 7 August 2023 incident, he agreed that the pain receded over time such that he was able to engage in the disciplinary process undertaken by the Respondent as evidenced by his capacity to prepare with assistance his 19 August Response. In these circumstances I am not persuaded that the rib injuries sustained by the Applicant were such as to prevent his filing his application at an earlier time than he did.
The Applicant also contends that the state of his mental health in the wake of his dismissal also contributed to the late filing of the Application. Beyond that submission there is limited evidence to support it. Dr Ahmed’s medical report was prepared some two months after the Applicant’s dismissal, is not probative as to the Applicant’s state of mental health in the period immediately following his dismissal and largely reports the Applicant’s stated feelings in the wake of his dismissal, a point conceded by the Applicant in cross-examination. Moreover, Dr Ahmed’s report does not indicate that the Applicant was so affected by poor mental health that he was unable to file an unfair dismissal application at an earlier time than he did. I do however accept that the Applicant may have been shocked and distressed at his dismissal, but such a reaction is neither unusual nor out of the ordinary.
Turning finally to the Applicant’s claimed admission to hospital for three days with pneumonia. As stated above, the Applicant could not identify the specific dates of admission and release from hospital, although it appears based on the Applicant’s estimate of the timing of his admission that it occurred on or about the 4-6 September 2023. If that is the case, I accept that the period of his admission would explain why he was unable to file his application in that three-day period. It does not however adequately explain why he was unable to file his application before or after his hospital admission in circumstances where he agreed that prior to and following his admission he was living independently at home with the support of his wife. If it is accepted that the Applicant was released from hospital on or about the 6 September 2023 there is no evidence before me to indicate that that the Applicant was not in a physical state capable of filing the Application on or by 15 September 2023 or at an earlier time than 5 October 2023 when he ultimately did file the application.
Having regard to the above, I accept that the Applicant is likely to have suffered some physical discomfort due to his rib injuries in the wake of the 7 August 2023 events. That discomfort on the Applicant’s own admission receded and did not prevent him engaging in the disciplinary process. I also accept that the Applicant was likely to have suffered some shock and distress at his dismissal, but I am unable to conclude in the absence of more compelling evidence that his mental state was such that he was unable to file his application before the 21-day time period had passed or an earlier time than he did file the application. Finally, the Applicant’s hospital admission for pneumonia may explain a brief period of incapacity on or about 4-6 September 2023 but does not explain the entire period of the delay or even a significant portion of it.
I am not satisfied that the physical and mental health issues raised by the Applicant when considered either individually or collectively provide an adequate explanation for the delay in the filing of the application for an unfair dismissal remedy. This weighs against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It was not in dispute, and I find, that the Applicant was notified of his dismissal on the same day that it took effect on 25 August 2023 and therefore had the benefit of the full period of 21 days within which to lodge his unfair dismissal application. This weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
It is not apparent that the Applicant took any action to contest his dismissal after it took effect on 25 August 2023, other than lodging his unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
The application was filed 20 days outside of the 21-day period. While that period of delay is not insignificant, the Respondent has not advanced any submissions or material that persuade me that it would suffer any significant prejudice. In the circumstances I consider this factor to be a neutral consideration.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The Applicant submits that while he was accused of assaulting a patient, he was in fact a victim of an unlawful assault in response to which he lawfully defended himself which he submits he was entitled to do under s 462A of the Crimes Act 1958. He further submits that the investigation was not carried out by a suitably qualified person, that the body worn cameras in use were inadequate, there was a lack of training for staff in handling aggressive or violent incidents and the Respondent had failed to provide appropriate training to new staff to enable them to provide support to him.
The Respondent submits in reply that the Applicant’s admitted conduct of punching a patient with Alzheimer’s in the face was deliberate and wilful, and regardless of the patient’s conduct, was not proportional in circumstances where the Applicant was a trained security guard who holds a security license. The conduct was said by the Respondent to be in breach of its ‘Working Together Policy’ and ‘Code of Conduct for Victorian Public Sector Employees’ as well as being inconsistent with the Occupational Health and Safety Act 2004 (Vic). Further, it was unacceptable for the Applicant to have made comments immediately following the incident that sought to justify or demonstrate a degree of satisfaction with having punched the patient. As regards the mitigating factors raised by the Applicant, the Respondent submits that the Applicant’s length of service should have enabled the Applicant to respond in a different and less aggressive manner. The Respondent also asserts that the disciplinary process was conducted in a procedurally fair manner.
It is evident to me that the merits of the Application are likely to turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. The Applicant has an arguable case that his conduct was proportionate to the assault he suffered and that other mitigating factors may tell in favour of harshness of the dismissal. For its part, the Respondent raises a prima facie defence that the Applicant’s conduct could not be excused by the behaviour of the patient and was not proportionate in circumstances where the patient was vulnerable and that the Applicant was trained, qualified, and had considerable experience as a security guard. Based on the limited material available at this stage of proceedings I do not consider the merits of the present case tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion
Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3) of the Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
S Broadway for the Applicant.
M Morris for the Respondent.
Hearing details:
2023.
Melbourne (via Microsoft Teams):
October 31.
[1] Exhibit A2, Letter to Applicant dated 9 August 2023, titled ‘Allegations of Serious Misconduct – Formal Disciplinary Investigation’
[2] Exhibit A4, Letter to Applicant dated 17 August 2023, titled ‘Disciplinary Investigation – (Findings and Preliminary Outcome)’
[3] Exhibit A5, Applicant response to Findings and Preliminary Outcome Letter
[4] Exhibit A6, Letter to Applicant dated 25 August 2023, titled ‘Disciplinary Investigation Outcome Termination of Employment – Serious Misconduct’
[5] Exhibit A7, X-ray dated 11 September 2023
[6] Exhibit A8, Medical Report dated 18 October 2023
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[8] Ibid.
[9] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[11] Ibid at [40].
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