Francis Logan v Bendigo Health Care Group

[2016] FWC 6780

[2016] FWC 6780

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Francis Logan
v
Bendigo Health Care Group
(U2016/7692)

COMMISSIONER RYAN MELBOURNE, 23 SEPTEMBER 2016

Application for relief from unfair dismissal.

[1] The following decision, now edited, was given extempore on 14 September 2016.

[2] In this matter, the Applicant was employed by the Respondent as an enrolled nurse.  The Applicant commenced employment in 2004 and had a very short break of employment in recent years.  The Applicant was dismissed on 26 May 2016, for serious misconduct.  The termination letter given to the Applicant did not identify the serious misconduct.

[3] On 16 May 2016 the Applicant was involved in the care of a patient.  The patient made an initial complaint on that day, to the Respondent, about the conduct of the Applicant.  The patient was interviewed on 17 May 2016, by Mr Greenwood of the Respondent, accompanied by Ms Muns of the Respondent.  Mr Greenwood prepared a report, which he emailed to the appropriate persons within the Respondent.  Two allegations were made against the Applicant.  The patient's family assisted the patient to make a formal complaint against the Applicant.

[4] The allegations were put to the Applicant and he was given an opportunity to respond.  An investigation occurred and the first allegation could not be substantiated.  In relation to the second allegation the Applicant made admissions as to his conduct and whilst his admitted conduct did not align with the allegation made, the admitted conduct was considered by the Respondent to constitute serious misconduct and the Applicant was dismissed.

[5] In proceedings before the Commission evidence was given by Mr Logan, the Applicant, on his own behalf and by Mr Greenwood, Ms Muns, Ms Hyett and Ms Atkins, for the Respondent.

[6] In the proceedings both parties were represented by counsel, with Ms Preston appearing as counsel for the Applicant and Ms Nelson appearing as counsel for the Respondent.  Proceedings in this matter were held over two days, 12 and 13 September 2016, at Bendigo and on 14 September 2016 in Melbourne.

[7] The relevant legislation in this matter is section 396 of the Act, and these were matters to be considered before merits.  If those matters are satisfied then the relevant section is 387 of the Act, considering the criteria for harshness, unjustness or unreasonable dismissal.  If a decision is made that the dismissal is harsh, unjust or unreasonable, then the provisions of section 390, 391 and 392 then become relevant.

[8] I turn now to section 396, which states:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[9] In the proceedings before me I asked Ms Nelson, for the Respondent, if the Respondent would make certain concessions relating to matters, which are set out in section 396, and those concessions were properly made.  For the purposes of section 396 the Commission must decide, and I so decide, that the application in this matter was made within the period required in section 394(2) and that time limit is 21 days after the dismissal took effect.  I also decide that the Applicant was a person protected from unfair dismissal and a person is protected from unfair dismissal, within the meaning of section 382 and 383 of the Act, and the Applicant is a person protected from unfair dismissal.

[10] The nature of the business of the Respondent is such that it is not a small business, and I determine and decide that the Respondent is not a small business, which means that the application of the Small Business Fair Dismissal Code is not a relevant matter in this particular issue.

[11] I also decide that the dismissal was not a case of a genuine redundancy.  Neither the Applicant nor the Respondent has raised the issue that there was any sense of the termination of the Applicant being a case of genuine redundancy.  In fact, the position adopted by both the Applicant and the Respondent is the same and that is, this is a dismissal initiated by the employer, as a result of alleged misconduct by the Applicant. 

[12] Having decided the initial matters required to be decided under section 396 I can turn now to section 387, which states as follows:

“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); and

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

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

(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; and

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

(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; and

(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; and

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

[13] I must consider each of the criteria in section 387 which is relevant and I do not have to consider any criteria in section 387 which is not relevant.  But it is an absolute obligation to take into account each of the relevant provisions, under section 387.

[14] The first element or criteria, in section 387, is 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).  There is nothing in this matter that relates to the Applicant's capacity.  Everything that is being put relates to the conduct of the Applicant.

[15] In this particular matter the Respondent contends that the Applicant engaged in serious misconduct and that serious misconduct provided a valid reason.  The difficulty I start with is that the serious misconduct identified in the letter of termination did not identify the serious misconduct, rather, the letter identified that serious misconduct had been committed by the Applicant.

[16] Having considered the material (and this is the totality of the evidence and the submissions by the parties) the Commission does not accept that Mr Logan engaged in serious misconduct, whether that is serious misconduct constituted by allegation 1 or allegation 2 that were put to him prior to the dismissal.  The Commission doesn't consider that the conduct of Mr Logan would meet the tests in the case relied upon by the Applicant, which was McDonald v Parnell Laboratories. 1

[17] However, in this matter, what is critical in the Commission's thinking is Mr Logan made an admission as to certain conduct.  Mr Logan admitted touching the hand and kissing a patient on the forehead and saying, "Goodnight and God bless." For there to be a valid reason, the reason has to be sound, defensible or well-founded. 2  It is sufficient to find a valid reason for dismissal in this matter that Mr Logan admits touching the hand of a patient and kissing the patient on the forehead and saying, "Good night and God bless."  The conduct of the words used, "Good night and God bless", don't appear in the findings against Mr Logan.  The allegation made against Mr Logan was holding the hand, not touching the hand.

[18] But setting aside the differences between the allegations made and the conduct admitted, it is sufficient for a valid reason to exist that Mr Logan has admitted the conduct.  The conduct clearly was conduct which the patient found unwanted and unwarranted and it is sufficient to find a valid reason for dismissal.

[19] It is also relevant, in this context, to specifically note the admission by Mr Logan that his conduct crossed the boundary.  Without needing to have a discussion around the "boundaries", and there are different boundaries, the evidence, in terms of the relationship that should exist between patients and nursing staff, identifies where clear boundaries are and where fuzzy boundaries are.  Rather than have a debate about whether or not there's a fuzzy boundary or a clear boundary, it is sufficient, for the purposes of finding a valid reason, to accept Mr Logan's own admission that his conduct crossed a boundary, and a relevant boundary at that.

[20] I'm supported in finding that there was a valid reason for dismissal, based upon the kissing of a patient on the forehead, by the evidence of Ms Muns and Ms Hyett, that kissing a patient is never appropriate.  Whilst their views are at the extreme, in that they have said it's never appropriate, it's sufficient, even if I reduce that down to "normally not appropriate", that consistent with their evidence and the admission by Mr Logan that he had crossed a boundary, that whether it is never appropriate or whether there may be exceptions, in this particular circumstance it was not appropriate because Mr Logan admitted that he had crossed the boundary in kissing a patient on the forehead.

[21] Ms Preston contended, within the context of the policies of the Respondent, that the conduct of Mr Logan was unsatisfactory behaviour but not misconduct.  Notwithstanding the submissions of Ms Preston, I consider that Mr Logan's conduct was unsatisfactory behaviour that justifies the imposition of a sanction.  Once I used that phraseology, I am using the definition of misconduct, which is in the Respondent's policy and which was attached at attachment FRL4 to exhibit A1.

[22] To the extent that there are other reasons advanced by the employer for the dismissal, the proposition advanced by Ms Nelson must be correct, there is only a need to find a valid reason, not necessarily to find more than one valid reason.

[23] Ms Nelson did contend that there were two other valid reasons for the dismissal.  The first was that the Applicant had shown a complete disregard for his registration requirements, as an enrolled nurse and, secondly, that his clinical judgement should be questioned and that he didn't conduct himself in a professional manner, in relation to wanting to check for faecal impaction.  Neither issue was relied upon by the Respondent at the time of the dismissal and neither issue was ever put to Mr Logan when he was employed.

[24] In relation to the first issue it could not, on the evidence before the Commission, constitute a valid reason.  It is neither sound, defensible or well-founded.  The evidence of
Mr Logan is insufficient to establish that he did not meet the CPD requirements or the recency requirements for registration.

[25] In relation to the second issue raised by Ms Nelson, it is clear that at the interview on 23 May, Mr Logan admitted his intention to inspect for faecal impaction.  This matter was never pursued by the Respondent.  No allegation was made against Mr Logan, no procedural fairness was accorded to Mr Logan and no investigation was undertaken by the Respondent in relation to what is now asserted to be his unprofessional conduct in wanting to engage in visual or physical checking for faecal impaction.  Even the evidence of Ms Hyett and Ms Muns did not suggest that this was an issue of professional misconduct that would warrant dismissal.  To the extent that the Respondent now relies upon these other two issues, I'm not satisfied that they could possibly give rise to a valid reason for dismissal.

[26] In relation to paragraph (b), (c) and (d) of section 387, it is clear that in relation to the valid reason, which is kissing a patient on the forehead, Mr Logan was notified of the reason, he was given an opportunity to respond to the reason and there was no unreasonable refusal by the employer to allow Mr Logan to have the support person present to assist at any discussions relating to the dismissal.  So in the context of the valid reason, and valid reason in the singular, the elements of paragraphs (b), (c) and (d) would support a finding that the dismissal is fair and reasonable, given the existence of a valid reason.

[27] In relation to paragraph 387(e), that paragraph is not relevant.  This is not an issue of unsatisfactory performance by the person, it is an issue of specific conduct by the Applicant.

[28] I turn now to section 387(f), which reads:

“The degree to which the size of the employers' enterprise would be likely to impact on the procedures followed in effecting the dismissal.”

[29] It is very clear that the Respondent is a large organisation.  It clearly has internal HR resources and these would have a direct impact upon the procedures, in relation to the dismissal.  It's very clear, and it's attached to material that's been filed by various witnesses, that there are comprehensive policies in place with this employer.  The evidence that has come from Ms Hyett and Ms Atkins and Mr Greenwood and Ms Muns shows that there is a comprehensive policy and process for investigating allegations of misconduct.

[30] In the present matter three persons investigated the incident.  On conclusion of the investigation Ms Atkins sent an email to Ms Noonan (attachment HA11 to Exhibit 7), who sent the email on to Mr Mulder, the CEO.  In this matter, the three persons who investigated the incident were not the decision maker.  In sending an email to Ms Noonan, Ms Noonan was not the decision make.  Ultimately, the decision maker in this matter was Mr Mulder. 

[31] Attachment HA11 does not constitute a balanced report on the outcomes of the investigation.  The first allegation was included in the email, even though the allegation had been found not to have been substantiated.  Reference is made in the email to Mr Logan denying the allegation, however Mr Logan's full response was not included.

[32] In relation to the second allegation, attachment HA11 to exhibit 7 does not accurately reflect the conclusions reached by the investigation.  The conclusions reached by the investigation are contained in a report, which was provided to the Commission at attachment HA10 to exhibit R7.

[33] It's very clear, though, that the email, at HA11, was drafted by Ms Atkins and that Ms Hyett read the email before it was sent.  The email itself was addressed to Ms Noonan but cc'd to Ms Hyett.  So in cc'ing it to Ms Hyett, Ms Hyett was simply getting an email that she had had the opportunity of reading before it was sent to her.

[34] Both Ms Atkins and Ms Hyett gave evidence that they did not know why they referred to the first allegation in HA11, when it was found to have been unsubstantiated.   Neither could explain why it was there when it was not part of the reason for recommending the dismissal.

[35] In the present matter, the decision maker is Mr Mulder.  It is Mr Mulder's decision that the employment of Mr Logan be terminated.  Mr Mulder did not give evidence in this matter.

[36] The evidence before the Commission suggests that Mr Mulder only had the email from Ms Noonan, which is at HA12, and the email from Ms Noonan is, in many respects, a forwarding on or repetition of the email which was sent to Ms Noonan from Ms Atkins, and is attached at HA11.  The evidence was that there could possibly have been a discussion between Ms Noonan and Mr Mulder, on the basis that that appeared to be a normal course of events but, in the present matter, it can be treated as nothing more than a possibility.  There's certainly no evidence from Ms Noonan, she did not give evidence in this matter, and there is no other evidence that suggests that Mr Mulder had anything before him, other than the email, which is at HA12.

[37] It is reasonably clear, or it's explicitly clear, that the investigation report, at HA10, was not sent by Ms Atkins to either Ms Noonan or Mr Mulder.  There is nothing to suggest that Mr Mulder would otherwise have had access to or read the report at HA10.  There is nothing to suggest that Mr Mulder spoke to Mr Logan, to get his response, before deciding to dismiss him.

[38] This is all relevant, in terms of considering the issue raised by 387(f), and that is, the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal.   The very size of the employer's enterprise leads to the distinct impression that Mr Mulder, as the decision maker, was nothing more than acting as a rubber stamp to the recommendations of the investigatory group.

[39] The concept of a fair go all round, which underpins the unfair dismissal provisions of the Act, strongly suggest that Mr Mulder should have read all of the material and spoken to Mr Logan before deciding to dismiss him.  Rather than be a rubber stamp, Mr Mulder should have been an involved decision maker.  The process and the procedures followed in effecting the dismissal are such that the decision maker does not appear to have done anything more than act as a rubber stamp in this matter.  That is a factor which does not support a finding that the dismissal was fair.

[40] Paragraph (g) of section 387 is simply not relevant.  There are dedicated human resource management specialists within the Respondent's business.

[41] Section 387(h) allows the Commission, and requires the Commission, to consider any other matters that the Fair Work Commission considers relevant.  I am of the view that there are several matters which need to be considered, under section 387(h).

[42] Firstly, the communication from Ms Atkins to Ms Noonan and from Ms Noonan to Mr Mulder, and the information given to Mr Mulder, is a directly relevant factor which arises under section 387(h).  Whilst I've referred to it, under section 387(f), in relation to the procedures, it has a greater impact, in relation to a general consideration as to whether or not the dismissal was harsh, unjust or unreasonable.

[43] It's also the Commission's view that the report of AHPRA, exhibit A3, is directly relevant in this matter.  Two aspects in relation to the AHPRA report, and the AHPRA report is the report of the Australian Health Practitioner Regulation Agency, in relation to a matter raised by Ms Susan Jennings, of the Respondent, about the conduct of the Applicant, and it's the admitted conduct of the Applicant in this matter.

[44] Two matters are relevant.  Firstly, the AHPRA report only became available on 9 September 2016, in which case it simply was not known to the Respondent, at the time of the dismissal.  It's relevant, however, to the determination of the matters before the Commission, on the basis that it is the expressed view of the relevant professional standards body.  It is important, in the context of the present matter, that I read, in part, from exhibit A3.  On the first page of exhibit A3 the letter to Mr Logan, and this is - it's titled, "Notice advising you of proposed action."  It contains the following:

“On 1 September 2016 the board considered the information it had available through the notification process.  The board formed a view that your professional conduct is or may be unsatisfactory and is proposing to caution you in the following terms.”

[45] The terms of the caution are set out as follows:

“The Nursing and Midwifery Board of Australian cautions Mr Francis Logan to abide by the code of professional conduct for nurses by maintaining professional boundaries between himself and the person for which he is caring.”

[46] After identifying the caution, the document then goes on to explain why the board is proposing to take this action.

[47] There are four paragraphs, numbered (a), (b), (c) and (d), which explain the board's proposed action.  Paragraph (c) says:

“While your conduct was not considered to be sexually motivated, the board considered that kissing the patient on the head represents a violation of the code of professional conduct for nurses, namely, conduct statement 8, and the maintenance of professional boundaries.  As such, the board considered that your conduct fell below the standard reasonably expected of a nurse.”

[48] Then paragraph (d) says:

“While your conduct was considered sufficient to warrant regulatory action, the board noted that it was a relatively minor violation of the code of professional conduct.  Accordingly, a caution is considered to be adequate to ensure that you are aware of the board's expectations and that you do not repeat the behaviour.  The caution is intended to remind you of the importance of abiding by the code of professional conduct with regard to the maintenance of professional boundaries.”

[49] The letter then goes on to deal with some other matters, under three headings.  The next heading is, "What do you need to do", then followed by a heading, "What are the next steps", and the final heading is, "Need more information?".  The report invites the Applicant, Mr Logan, to make a response if he wanted to.

[50] In his evidence, before the Commission, Mr Logan made it very clear that he accepted the proposed action by the board, which was the caution, and that he would be communicating that to the Australian Health Practitioner Regulation Agency, that he accepted their proposed action.

[51] It is, in the Commission's view, directly relevant to a consideration of whether or not the dismissal is harsh, unjust or unreasonable, to take into account the considered view of the regulatory agency for enrolled nurses, which has had an opportunity of considering the issues raised by the Respondent against Mr Logan and Mr Logan's response.  Because it is exactly the same conduct which is relied upon as being the valid reason for dismissal, the position of AHPRA is a relevant consideration, for the purpose of section 387(h).

[52] It's also relevant to have regard to the position of the investigators.  The evidence of Ms Hyett and Ms Atkins, in these proceedings, is that the investigators were very clearly fearful that there would be repeat conduct by Mr Logan, of the type that he had admitted and which constituted the valid reason for the dismissal.  Against this, there is the very clear evidence of Mr Logan that there was no chance of a repeat episode of such conduct.  These are both matters which are relevant to a broad consideration of the issue as to whether or not the dismissal is harsh, unjust or unreasonable.

[53] It's also relevant that Ms Hyett's evidence that Mr Logan had no insight into the fact that his conduct crossed the line and the contrasting evidence of Mr Logan, and it was clear evidence as to his conduct, and his evidence shows that he has now, or at least at the time that he gave his evidence to the Commission, that he now has a clear insight into the fact that his conduct crossed the line.  Issues which were clearly in the minds of the investigators, in making a recommendation to Mr Mulder for dismissal, are contrasted with the specific evidence given by Mr Logan, to the Commission, during these proceedings.

[54] It's also relevant, in my view, to have regard to the investigation processes.  The key statement relied upon and used by the investigators was the report prepared by Amenuel Greenwood, on 17 May 2016, and contained in an email he sent to Ms Atkins and copied to Susan Jennings, David Rozao, Kate Hyett, Kristy Clouston, Leanne Muns and Andrea Noonan, and it was in relation to his initial discussions with the patient to determine the nature of her complaint.  That is at attachment LM4 to exhibit R5.

[55] The report from Mr Greenwood, which formed an important element of the investigatory process, contained a very specific allegation by the patient.  The specific allegation is put as follows, by Mr Greenwood:

“When Richard came into her room during this current in-patient episode, she felt immediately uncomfortable.  She was going to yell for help if Richard closed the door, as she felt he had intent of some sort.”

[56] That allegation is put prior to any interaction occurring between Mr Logan and the patient.  It is clear that that statement by the patient, as recorded by Mr Greenwood in LM4, does not appear to have been given sufficient attention by the investigators.  Notwithstanding questioning from the Commission, it doesn't appear that there was or that the investigators sought to establish whether or not there was any rational basis for that statement.  Yet, in the context of the patient's complaint and the interaction between the patient and Mr Logan, it clearly was an important matter.  I consider that this particular issue was insufficiently addressed by the Respondent in its investigation and it's the insufficiency of the investigation, on that matter, which is a relevant factor to take into account, under section 387(h).

[57] It is also relevant, in my view, to consider Mr Logan's evidence that the physical contact he had with the patient occurred in a context where his aunt had recently died and his mother was now in care.  That is a relevant contextual factor.  Notwithstanding that, it simply cannot excuse the conduct but it does put the conduct of Mr Logan into a context which is relevant when considering whether the dismissal is harsh, unjust or unreasonable.

[58] I can see that it is relevant, for the purpose of section 387(h), to have regard to the length of service of Mr Logan with the Respondent.  When I refer to service in this sense, I'm not referring to the most recent period of contracted employment but, rather, the period of service, going back to 2004.  That is a significant period of time.  Even though there was a short break in the employment, that break was of a very short duration, it was explained, by the Applicant's counsel, to the Commission.  In the context of section 387(h) it is the overall length of service which is a relevant factor when considering fairness.

[59] I also consider that it's relevant, for the purpose of section 387(h), to have regard to the financial impact of the dismissal on Mr Logan.  The impact is that he has been denied employment, denied his livelihood and, on that basis, it is a matter which is directly relevant, for the purpose of section 387(h).

[60] The requirement, under section 387, is to take into account all relevant factors and then appropriately consider them.  There is no one element, under section 387, which outweighs or outranks any other element.  In other words, the mere finding that there is a valid reason doesn't trump any other element or any criteria of section 387.  Each of the relevant criteria must be taken into account in considering whether or not the Commission can be satisfied that the dismissal was harsh, unjust or unreasonable.

[61] Having taken into account each of the relevant factors, under section 387(h), I conclude that the dismissal of Mr Logan was harsh.  It is clearly, in the Commission's view, disproportionate to the gravity of the conduct, which has been admitted by Mr Logan.  I consider that the approach adopted by the professional standards body constitutes a far better characterisation of the conduct of Mr Logan than does the characterisation given to Mr Logan's conduct by the Respondent.  As AHPRA has made clear:

“The conduct of Mr Logan was a minor violation warranting a caution.”,

as against the view of Ms Atkins, was that it was not minor, not a minor violation but a serious violation.  The position adopted by both Ms Hyett and Ms Atkins stands in stark contrast to the position adopted by the relevant regulatory agency.

[62] The dismissal of Mr Logan is also harsh because of the impact on Mr Logan financially and it's also harsh, having regard to the length of service of Mr Logan, with the Respondent, and it's a length of service in which the only issues that have been specifically raised against Mr Logan are those identified in Ms Muns' witness statement, which relate to two specific incidents of medication and specific incidents of providing a telephone number to a patient who wanted to give him racing tips.  In the context of the conduct of Mr Logan, over a period of time, the dismissal of Mr Logan was a harsh outcome.

[63] I also consider that the dismissal was unjust, in that HA12, the email which ultimately went to Mr Mulder, clearly misrepresented the situation to both Ms Noonan and Mr Mulder.  Ms Atkins conceded that the email was drafted, on the basis that it was ultimately intended to be read by Mr Mulder.  To the extent that Mr Mulder decided to dismiss Mr Logan, on the basis of that email, then he would have taken into account allegation 1, and in such a circumstance, allegation 1 had not been substantiated and therefore any decision to dismiss that could be related to the presence of allegation 1, constitutes an unjust outcome on Mr Logan.

[64] The dismissal is also unreasonable, to the extent that allegation 1 being put to
Mr Mulder, when there was no evidence to support the allegation, makes the decision of Mr Mulder, to the extent that it relies upon allegation 1, an unreasonable decision.

Remedy

[65] Having found that the dismissal of the Applicant is harsh, it is unjust and it is unreasonable, and I'll interpose here by saying that it's not necessary for me to make findings that it is harsh, it is unjust and it is unreasonable, it is sufficient that there be one of them.  In the context that the dismissal was clearly harsh, I now turn to the issue of remedy.

[66] The relevant provisions, relating to remedy, are found in division 4 part 3-2 of the Act, and are constituted by sections 390, 391 and 392 of the Act, with section 393 sometimes being in play.

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[67] The first element, in relation to remedy, is that any remedy is discretionary.  The language of section 390(1) makes it very clear that a remedy does not have to be granted, a remedy may be granted.

[68] The question that has to be considered by the Commission is, first of all, whether or not a remedy should be granted.  In all of the circumstances of the present matter, I am satisfied that a remedy should be granted to the Applicant.  To not grant a remedy would be to compound the harshness of the dismissal.

[69] The primary remedy, specified under section 390, is reinstatement.  It is a primary remedy, by having regard to the language of section 390(3).  Section 390(3) says:

“(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[70] The case law makes it very clear that reinstatement is the primary remedy for the purposes of the Fair Work Act, as it also was under the previous iterations of this legislation.

[71] In considering whether or not reinstatement is appropriate or inappropriate I've taken into account the following matters.  There are a number of factors which support the contention or a finding that reinstatement is inappropriate and there are a number of factors which support reinstatement as being appropriate.

[72] It is very clear that those factors which support a finding that reinstatement is inappropriate are as follows.  Firstly, Mr Logan's own evidence as to his approach to completing his registration renewal process.  The language used by Ms Nelson was to describe Mr Logan as having a complete disregard for the registration requirements, in terms of the way in which he has to answer and declare the correctness, as to the answers given in his registration renewal process.  This is clearly a factor which would tend to support reinstatement being an inappropriate remedy.

[73] Another factor which would support a consideration that reinstatement is inappropriate is Mr Logan's evidence in relation to issues surrounding the code and the practice notes issued by the profession, in relation to boundaries.  It's very clear, from the evidence of Mr Logan, that he adopted a reactive approach to informing himself about the code and the professional boundaries issues.  It was reactive in that it occurred only after the allegations had specifically been made against him, and these are allegations of some seriousness.  It wasn't a proactive approach of informing himself before an issue ever occurred.  That is a factor which weighs against reinstatement being an appropriate remedy.

[74] However, there are a number of factors which support reinstatement being an appropriate remedy.  The first is the very clear evidence of Mr Logan, with his desire to continue working in a job that he likes and a job that he considers to be his career.  There's also the very strong evidence of Mr Logan that the actions which gave rise to a valid reason for dismissal won't happen again.  I'm certainly satisfied that there is real commitment by Mr Logan to ensure that such conduct will not happen again.

[75] It's also relevant, in relation to considering reinstatement as an appropriate remedy, to have regard to the AHPRA conclusion that Mr Logan's conduct was a minor violation warranting a caution.  That stands in stark contrast to the approach adopted by the Respondent that it was a serious violation warranting dismissal.

[76] It's also relevant to consider the fact that the Respondent has the ability to require Mr Logan to undertake training, if they want him to.  The evidence of Ms Hyett was very clear, that they can, if they want to, require Mr Logan to undertake any necessary training.

[77] It is also very important, in considering the appropriateness or inappropriateness of reinstatement, to have regard to the Full Bench decision in Nguyen v The Vietnamese Community in Australia. 3  At paragraph 27 of that decision the Full Bench identifies in a number of dot points, a number of propositions where they say they're propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate and they make it clear as to what those propositions are.  But at paragraph 23 of the decision the Full Bench says:

“[23] In speaking of ‘trust and confidence’ in this context, we are concerned with that which is essential to make an employment relationship workable.”

[78] This is an important aspect of the concept of trust and confidence.  Much was put by the Respondent that the relationship of trust and confidence had broken down.  The evidence is not before the Commission to show that there is clearly a complete breakdown of the relationship of trust and confidence necessary to make an employment relationship work.  What is required is that there be sufficient trust and confidence to make an employment relationship workable.  I have no doubt, having heard all of the evidence, including the evidence of Ms Hyett, Ms Atkins, Ms Muns, that a workable relationship can be re-established between Mr Logan and the Respondent.

[79] When I weigh up the factors favouring reinstatement against the factors which do not favour reinstatement, I conclude that, in all of the circumstances of this matter, reinstatement is appropriate.  Or, to put it more clearly in the language of the Act, I cannot be satisfied that reinstatement is not appropriate.

[80] On that basis, the remedy that will be granted to the Applicant in this matter is an order for reinstatement. 

[81] The Applicant seeks an order, pursuant to section 391(3) for an order to restore lost pay.  No such order will be made.

[82] In the context of the present matter, notwithstanding what payments may have been made to the Applicant, and I note that not only did he get an ex gratia payment from the Respondent but he also got paid out his long service leave, a more fundamental issue here is whether or not the Respondent should be required to pay to the Applicant wages which he has not earnt and for a period for which he has not worked.  It is a discretionary order that can be made, under section 391(3).  I do not consider it appropriate, in the circumstances of the present matter, to put the Applicant into a position where he has suffered nothing out of this exercise.  By not making an order for the restoration of lost pay a very clear message is given to the Applicant as to the consequences that flow from his own conduct.

[83] I am satisfied and I do consider it appropriate to make an order, under section 391(2), which is to make an order that there be continuity of employment and continuity of continuous service.

[84] In relation to an order, for the purposes of section 391, the order that will be made is an order, pursuant to section 391(1)(a), and that is:

“An order for the person's reinstatement that the person's employer, at the time of the dismissal, reinstate the person by reappointing the person to the position in which the person was employed immediately before the dismissal.”

[85] An order has been issued with the date of effect of 28 September 2016.

COMMISSIONER

Appearances:

R. Preston of Counsel for Mr Logan.

R. Nelson of Counsel for Bendigo Health Care Group.

Hearing details:

2016.

Bendigo:

September 12, 13

Melboune:

September 14.

 1 [2007] FCA 1903.

 2   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373 .

 3   [2014] FWCFB 7198.

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