James Hutchinson v Monash Health

[2014] FWC 1860

[2014] FWC 1860

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Hutchinson
v
Monash Health
(U2013/9060)

COMMISSIONER RYAN MELBOURNE, 21 MARCH 2014

Application for relief from unfair dismissal - valid reason.

[1] Mr Hutchinson was employed by Monash Health as a Security Officer. His employment commenced on 7 June 2010 and ended on 16 April 2013 when he was dismissed for serious misconduct.

[2] Mr Hutchinson filed an application for an unfair dismissal remedy on 1 May 2013. Monash Health raised a jurisdictional objection which was heard by DP Smith on 2 September 2013 with a decision given on 22 October 2013. The substantive application was heard on 6 and 7 March 2014 with Mr Hutchinson being represented by Mr Champion of counsel and with Monash Health being represented by Mr Rinaldi of counsel. A decision granting permission to both parties to be represented by counsel was given on 3 March 2014 [[2014] FWC 1489].

[3] Each of the preliminary matters required to be determined by s.396 before merits can be considered were the subject of decision given in transcript.

[4] The alleged serious misconduct was that Mr Hutchinson “did utilize excessive and unnecessary force when restraining a female patient” who had assaulted a doctor in a corridor near the ambulance arrival area of the Dandenong Hospital. The alleged serious misconduct was recorded by a CCTV located in the area. The CCTV record is without sound.

[5] The entire incident of Mr Hutchinson approaching the patient and attempting to restrain her as she assaults a doctor and the alleged use by Mr Hutchinson of excessive and unnecessary force on the patient takes no more than 3 seconds. These few seconds as well as the couple of minutes before were extensively examined by witness for both parties. Monash Health had produced a version of the CCTV footage which showed the critical time period at half normal speed. Even then this slowed down version of events was examined part-second by part-second by both sides.

[6] A neutral description of events as recorded by CCTV is as follows.

[7] Two ambulance paramedics have a patient on an ambulance trolley in a corridor near the emergency department. The patient is sitting on the trolley with her legs dangling at the side of the trolley. One paramedic is standing next to the head end of the ambulance trolley holding a mobile set of steps in place next to the trolley to enable the patient to step down off the trolley. The metal steps have a handrail on one side only and this is being held by the paramedic. The second paramedic is standing at the side of the ambulance trolley next to the set of metal steps.

[8] The consensus of the evidence was that the patient was loud and somewhat verbally aggressive. The patient engaged verbally with hospital staff who came near the patient. The paramedics change position as they also appear to be talking to the patient.

[9] Mr Hutchinson who was on duty in the emergency department approaches the patient and appears to talk to her. The patient appears to respond in an aggressive manner towards
Mr Hutchinson as she makes quite emphatic arm movements. Mr Hutchinson engages in some quite obvious finger pointing at the patient whilst he talks to her which he then changes to an open handed “calm down” gesture. Whilst Mr Hutchinson is in communication with the patient Dr Whelan approaches a workstation near to the ambulance trolley. Mr Hutchinson finishes talking to the patient and moves slightly back. Dr Whelan from his position at the workstation verbally engages with the patient for a very brief period before he leaves the area. Mr Hutchinson then moves a short distance away from the patient and faces away from the patient. Mr Hutchinson then leaves the immediate area. About 30 seconds later Dr Whelan approaches the patient and stands at the foot of the ambulance trolley and engages verbally with the patient and in doing so Dr Whelan uses his hands and arms expressively. The evidence of Dr Whelan was that he was telling the patient to go to the waiting area and wait to be treated and that she would not be taken into the emergency department.

[10] The patient responds to Dr Whelan by also using her hands and arms expressively.
Mr Hutchinson who has been standing a short distance to the side suddenly moves quickly forward as the patient swings her left arm and fist towards Dr Whelan. Dr Whelan moves only slightly, if at all, and receives a glancing blow from the patient which left him with a stinging sensation in his lips for a couple of hours. Mr Hutchinson is leaning forward partially obstructed by the metal steps next to the ambulance trolley and takes hold of the patients left wrist to prevent her striking Dr Whelan again. Mr Hutchinson pulls the patient’s wrist and arm towards him, the patient’s body moves back on the trolley apparently in opposition to the pulling motion of Mr Hutchinson. Then Mr Hutchinson whilst still holding the patient steps backwards and moves out of view of the CCTV camera. The patient is pulled off the trolley and falls towards the ground as she moves out of view of the CCTV camera. The CCTV recording shows the feet of the patient on the floor in a position which indicates the patient landed face down on the ground.

[11] The serious misconduct alleged against Mr Hutchinson only concerns the fact that
Mr Hutchinson pulled the patient off the trolley causing her to suffer a cut to her chin and a broken jaw.

[12] The conduct of Mr Hutchinson in intervening as the patient strikes Dr Whelan is accepted by Monash Health as being appropriate conduct.

[13] The “excessive and unnecessary force” only concerns the act of Mr Hutchinson pulling the patient off the ambulance trolley.

Background

[14] Dr Whelan has been employed by Monash Health since 2005 and was at the time of the relevant incident the senior registrar in the Emergency Department of Dandenong Hospital. The patient had been a regular patient at the hospital with Dr Whelan giving evidence that he had known this patient since 2007 as a regular visitor to the emergency department. Dr Whelan’s evidence was that although the patient was known to be a difficult person to deal with he had never known her to be physically violent.

[15] Mr Hutchinson also knew of the patient as a regular patient at the hospital.
Mr Hutchinson also believed that the patient had spent time in gaol for stabbing her boyfriend.

[16] At the time of the incident there were 3 security officers on duty. Mr Hutchinson was in the emergency department area while the other two security officers were undertaking a regular patrol of the hospital.

[17] The incident took place in an area called the ambulance triage area. From the CCTV recording this area appears to be a wide corridor.

Harsh Unjust or Unreasonable Dismissal

[18] Having determined the initial matters under s.396 I now turn to the requirements of s.387 which is 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.”

[19] Mr Champion for Mr Hutchinson conceded that the applicant placed no reliance on paragraphs (b) to (g) of s.386 as the applicant conceded the procedural fairness of the process adopted by Monash Health. Given this concession the case essentially turns upon s.387(a) and (h).

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) - 387(a)

[20] In Selvachandran v Peteron Plastics Pty Ltd Northrop J said:

“Subsection 170DE(1) refers to "a valid reason, or valid reasons", but the Act does not give a meaning to those phrases or the adjective "valid". A reference to dictionaries shows that the word "valid" has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is ‘2 Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In the Macquarie Dictionary the relevant meaning is "sound, just, or well founded; a valid reason.

In its context in subsection 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1).” 1

[21] Whilst this observation was made in relation to earlier legislation the approach adopted by Northrop L equally applies to s.387(a) of the Act.

[22] As a Full Bench also said in Rode v Burwood Mitsubishi:

“... the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason”  2

[23] The reason for the dismissal as given by Monash Health requires the Commission to consider two separate matters: (1) Did Mr Hutchinson utilize excessive force when restraining a female patient? and (2) Did Mr Hutchinson utilize unnecessary force when restraining a female patient? Answering these two questions only leads to conclusions about
Mr Hutchinson’s behaviour and whilst this is important it does not of itself answer the question: Is the reason for dismissal as given by the employer defensible or justifiable on an objective analysis of the facts?

Did Mr Hutchinson utilize excessive force when restraining a female patient?

[24] A consideration as to whether Mr Hutchinson utilized excessive force against a female patient requires that the nature and effect of the force used be considered by the Commission.

[25] In the present matter Mr Hutchinson concedes that he pulled the patient off the trolley with the consequence that the patient hit her face on the floor and received a cut chin and a broken jaw. The CCTV footage clearly shows the Mr Hutchinson pulling the patient’s arm and the patient being pulled off the ambulance trolley and falling to the ground.

[26] The CCTV footage clearly shows that the patient is of short stature and that whilst she is sitting on the edge of the ambulance trolley only the toes of one foot are barely touching the steps being held next to the ambulance trolley. For the patient to alight from the ambulance trolley she would need to move forward towards the edge of the trolley until her feet are on the top step of the mobile metal steps before she could then step down and away from the ambulance trolley.

[27] When Mr Hutchinson pulls the patient off the trolley it is clear that the patient is airborne until she strikes the floor in a face down position. The patient does not step or even stumble down the steps. The CCTV shows that the patient’s feet do not touch the ground until she hits the ground in a face down prone position.

[28] The amount of force exercised by Mr Hutchinson to pull the patient off the trolley was sufficient to cause the patient to land on the floor in a prone position with her feet about half a metre away from the side of the trolley. The patient’s body did not simply fall to the ground off the trolley and next to the trolley. The patient’s torso moves quite some distance from being in a seated position on the trolley to being prone on the floor.

[29] Objectively, it is clear that the amount of force utilized by Mr Hutchinson against the patient was excessive.

Did Mr Hutchinson utilize unnecessary force when restraining a female patient?

[30] A consideration as to whether Mr Hutchinson utilized unnecessary force against a female patient requires the Commission to consider the reasons for the utilization of the force against the female patient.

[31] Mr Hutchinson explained in his witness statement, Exhibit A1, the reasons for pulling the patient off the ambulance trolley, as follows:

“29. I grabbed the patient's left wrist/forearm to restrain her in order to prevent her striking the doctor. I reacted immediately by pulling the patient towards me to get her away from the doctor. My purpose was to stop her striking the doctor. It all happened very quickly. There was no other easily available option other than to pull the patient towards me. The trolley on which the patient was sitting was unstable and has no breaks. If I pushed the patient backwards, she may have struck her head over the back of the trolley or the trolley may have been upended. Also, I had to get past the width of the portable steps, which steps were an obstacle between me and the patient.

30. When I pulled the patient away from the Doctor she initially resisted. Then suddenly she did not resist causing both her and me to fall to the floor unexpectedly. The patient fell from the trolley face forward onto the floor. I landed on my side whilst still grasping her forearm. She continued at this point to flail about kicking out her legs and attempting to break free from my grasp.”

[32] The consistent evidence of Mr Hutchinson under both cross examination and re-examination was that it was an accident that the patient fell to the floor.

“PN709. Mr Rinaldi: You say that's because that was an attempt to control the arm?---Mr Hutchinson: Well, I was – to control the arm when she's resisting you need to apply pressure and force obviously, otherwise she'll just pull you towards her. So you've got to apply some force and when there's no force and you've got force, that's when I fell – we all fell backwards.

PN719. Mr Rinaldi: And you were surprised by how light she was. Is that right?---I was surprised that we cam away from the trolley like that. It was totally unexpected.

PN726. Mr Rinaldi: Looking at it now you can see it was disproportionate to the threat, can you not?

---No, it was an accident, an unintended and unforeseeable consequence.

PN727. What was unforeseeable about it?---I didn't expect her to not resist like that and us falling backwards.

PN728. You didn't expect her not to resist like that and "us falling backwards"?---She initially resisted and then all of a sudden there was no resistance and we were propelled backwards and fell.

PN758. The force you used was disproportionate to the threat that she constituted to the doctor, wasn't it?---She was using closed fist. I used open hand and an unforeseen consequence of her stopping her resistance was us falling over.

PN759. You pulled her forward off the trolley and she hit the ground face first cutting her chin?---We fell; we fell. That was an unintended consequence.

PN760. She fell because you dragged her to the ground?---Because she stopped resisting and - I still had force on her arm and she stopped resisting and that propelled us backwards and even I fell over, not just her.

PN773. Do you agree that that event occurring is unacceptable?---That was an accident.

PN774. Do you agree even if, as you say, it was an accident, it was an acceptable accident?---Accidents occur and unfortunately I didn't foresee that happening; you know, I'm remorseful that she was injured. It was unintended. I had no desire to hurt her. I had a desire to stop her assaulting the doctor.

PN779. Your evidence is you made a mistake or it was an accident?---It was an accident. I didn't make a mistake. I had to intervene. I made a decision to intervene and it was an accident what happened.

PN780. Your position is effectively you should be forgiven that accident and allowed to come back to work there. Is that right?---That's correct.

and

PN917. Mr Champion: ...where did you try to grab patient X on that morning?---The wrist and the elbow area.

PN918. And what was the intended aim of grabbing her at the wrist and below the elbow?---To stop her striking the doctor again.

PN919. Did you manage to get a restraint on as you desired to do?---No.

PN920. Why not?---Because she was resisting and pulling back.

PN921. And when she pulled back, what did you do?---Tried to apply more force to control that arm.

PN922. At that point, did you or did you not pull her from the trolley?---No, she stopped resisting and we fell over.

PN923. So could you explain to the commission what you mean by she stopped resisting or she was resisting and then she stopped? What do you mean by that?---When I attempted to hold her wrist and her elbow, she was applying resistance and trying to pull back so I applied force and then she hasn't resisted and because there's no more resistance when I've applied force, I've fallen back on my side and she's come with me.

PN924. Is the force you're applying – she's pulling back. Are you pulling forward?---I'm trying to control the limb by equalling the force.

PN925. Sorry, I may have cut you off. What happens then?---Then she doesn't resist at all and I fall over and she comes with me.

PN926. Was the ending of the resistance sudden, gradual? I know it all happens in the blink of an eye but are you able to tell the commission how the resistance stopped?---It was very sudden and unexpected.

PN927. When the sudden and unexpected stop of resistance happens, what happens then?

---That's when I fall backwards and the whole incident ends up on the floor.

PN928. At any point, did you want to get her from the trolley onto the floor as part of this restraint?---No.”

[33] Mr Hutchinson concedes that he applied the force which caused the patient to fall off the bed but Mr Hutchinson contends that the fall was caused not by his pulling force alone but because the patient initially resisted Mr Hutchinson’s pulling and then suddenly stopped resisting the pulling.

[34] The evidence of Mr Hutchinson at PN917 to PN928 can be accepted as evidence that Mr Hutchinson did not have the intention of pulling the patient off the ambulance trolley but it clearly shows that Mr Hutchinson acted without regard to the consequences which flowed from applying a significant pulling force on the arm of the patient. Once Mr Hutchinson went from grabbing the patients arm to restrain her from striking Dr Whelan to pulling her arm towards himself as the patient resisted it appears to be an inevitable consequence that the patient was in real danger of being injured. One possible scenario was that if Mr Hutchinson let go of the patient while she was pulling back this would most likely have led to her suddenly moving backward and either striking her head against the wall or falling between the ambulance trolley and the wall. What actually happened was that the force of the pulling was greater than the level of resistance (which Mr Hutchinson said went from actual to zero very quickly) and thus it was inevitable that the patient would be pulled off the ambulance trolley.

[35] The necessity for any force to be utilized against the patient was to prevent the patient from striking Dr Whelan. The moment that the patient started to pull back against Mr Hutchinson he should have ended the force he was applying to her arm. There was no longer a necessity to apply force to her arm to restrain her and there was no necessity to apply such a strong pulling force that the patient was pulled off the ambulance trolley. In the present matter Mr Hutchinson concedes that he maintained his grip on the patients arm whilst she was pulled off the ambulance trolley and after she hit the floor.

[36] Mr Champion drew my attention to two authorities: Zecevic v DPP (Victoria) [1987] HCA 26, 162 CLR 645, and Woodley v Boyd [2001] NSWCA 35.

[37] In Zecevic v DPP (Vic) the High Court was asked to consider the role of the defence of self defence in a criminal matter. Wilson, Dawson and Toohey JJ said:

“18. When upon the evidence the question of self-defence arises, the trial judge should in his charge to the jury place the question in its factual setting, identifying those considerations which may assist the jury to reach its conclusion. In attempting to identify those considerations in any abstract manner here, there is a danger of appearing to elevate matters of evidence to rules of law. For example, it will in many cases be appropriate for a jury to be told that, in determining whether the accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds, it should consider whether the force used by the accused was proportionate to the threat offered. However, the whole of the circumstances should be considered, of which the degree of force used may be only part. There is no rule which dictates the use which the jury must make of the evidence and the ultimate question is for it alone. The trial judge should also offer such assistance by way of comment as is called for in the particular case. No doubt it will often also be desirable to remind the jury that in the context of self-defence it should approach its task in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection.”

[38] I take from this decision that the approach of the Commission in determining whether Mr Hutchinson’s belief that his actions were necessary to restrain the patient from striking Dr Whelan and whether Mr Hutchinson held this belief on reasonable grounds, the Commission should consider whether the force used by Mr Hutchinson was proportionate to the threat offered and that the Commission should consider the whole of the circumstances of which the degree of force used may only be a part. Further that the Commission should approach its task in a practical manner and without undue nicety, giving proper weight to the predicament of Mr Hutchinson which may have afforded little, if any, opportunity for calm deliberation or detached reflection.

[39] In Woodley v Boyd the NSW Court of Appeal was considering whether the amount of force used by a police officer to arrest a person was excessive or unnecessary. Heydon JA said:

“37 According to some writers, at common law, which applies in New South Wales, a person effecting an arrest may use whatever force is "reasonable" in the circumstances (Archbold: Criminal Pleading Evidence and Practice 2000 para 19-39) or "reasonably necessary" (Wiltshire v Barrett [1966] 1 QB 312 at 326 and 331). "Thus if the arrestee offered resistance, the arrestor could increase his force in proportion to the force of that resistance": R W Harding, The Law of Arrest in Australia (eds Duncan Chappell and Paul Wilson) The Australian Criminal Justice System (2nd ed, Butterworths, 1977) p 254. A more elaborate test has been propounded in the context of whether the killing of a felon in the course of committing a felony is a justifiable homicide, or manslaughter, or murder. It was put thus by the Full Court in R v Turner [1962] VicRp 2; [1962] VR 30 at 36:

‘When a felony is committed in the presence of a member of the public, he may use reasonable force to apprehend the offender or for the prevention of the felony. What is reasonable depends upon two factors. He is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented (i.e. the commission of a felony or the escape of the felon).’

It may perhaps be questioned whether the tests stated apply where the arresting party causes injury to the arrested party, as distinct from death. However, for present purposes it is convenient to assume, as counsel for both the plaintiff and the defendants did, that R v Turner states the law in that context as well. In evaluating what is reasonable, necessary or reasonably necessary the duties of police officers must be remembered. In Lindley v Rutter [1981] QB 128 at 134 Donaldson LJ said:

‘It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime such as, for example, malicious damage to property. This list is not exhaustive, but it is sufficient for present purposes. What measures are reasonable in the discharge of this duty will depend upon the likelihood that the particular prisoner will do any of these things unless prevented. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be justified is the adoption of any particular measures without regard to all the circumstances of the particular case.’

The same duties and considerations apply where a police officer is deciding how to effect an arrest. And, in evaluating the police conduct, the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight. In McIntosh v Webster (1980) 43 FLR 112 at 123, Connor J said:

‘[Arrests] are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances.’”.

[40] Davies AJA in agreeing with the decision of Heydon J added the following:

“95…. As Heydon JA has pointed out, an arrest is made when the arresting officer indicates that he is making an arrest and the suspect submits. In the present case, when Senior Constable Boyd placed his hand on the appellant's wrist, the appellant did not submit. He resisted. To counter his resistance, a wrist lock and then an arm lock were applied. Ultimately, the appellant threw himself forward in an attempt to break the arm lock. This movement, his own resistance to the arrest, caused his arm to break. It cannot be said that the police officers were using undue force. They were using standard wrist and arm locks in an attempt to force the appellant to submit to the arrest. The application of force was rendered necessary by the appellant's refusal to submit, by his resistance.”

[41] I take from this decision that determining whether the force utilized by Mr Hutchinson against the patient was reasonable depends upon the following. Mr Hutchinson is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented. Finally in evaluating Mr Hutchinson’s conduct, the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight.

[42] In any determination of the reasonableness of Mr Hutchinson’s actions it is altogether unfair to Mr Hutchinson to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what Mr Hutchinson might or might not have done or believed in the circumstances. Speculation as to what other alternative courses of action were available to Mr Hutchinson is unhelpful. The Commission must focus on what actually occurred not on what might have or should have occurred.

[43] I note that in the present matter the injury to the patient was not caused by her resistance to Mr Hutchinson’s use of force but rather was specifically caused by Mr Hutchinson’s use of force.

[44] The examination of the CCTV footage during the proceedings was pursued almost exclusively using the half speed recording of a small part of the CCTV footage which showed Mr Hutchinson moving in towards the patient and grabbing her arm to prevent her striking Dr Whelan and then pulling the patient off the ambulance trolley. In making my decision in this matter I have relied on the normal speed CCTV footage showing a much longer period of time. Use of the half speed CCTV footage invites and permits “minute and retrospective criticisms” of what Mr Hutchinson might or might not have done or believed in the circumstances.

[45] To consider whether a reasonable person, placed as Mr Hutchinson was placed, would or would not consider Mr Hutchinson’s actions to be disproportionate to the evil to be prevented it is necessary to only have regard to the normal speed CCTV footage and to the evidence of the several witnesses.

[46] An objective analysis of the facts as shown on the CCTV footage together with a consideration of the circumstances of the case and approaching this task in a practical manner and without undue nicety, giving proper weight to the predicament of Mr Hutchinson which may have afforded little, if any, opportunity for calm deliberation or detached reflection I conclude that the amount of force used by Mr Hutchinson against the female patient was unnecessary to restrain the patient from striking Dr Whelan.

[47] I note that the two authorities relied on by Mr Champion concerned matters in the criminal jurisdiction where the level of proof required to convict is beyond reasonable doubt. In the civil jurisdiction which includes the Fair Work Commission the standard of proof required is on the balance of probabilities. As the Dixon J said in Briganshaw v Briganshaw:

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” 3

[48] In the present matter the reason for the dismissal is valid in the sense it is clearly defensible by Monash Health and that the reason for dismissal is also well founded and that the Commission is satisfied on the balance of probabilities that the conduct for which
Mr Hutchinson was dismissed did occur.

Any other matters that the FWC considers relevant - 387(h)

[49] A finding that the dismissal of Mr Hutchinson was for a valid reason does not inevitably lead to a finding that the dismissal was not harsh, unjust or unreasonable nor can the finding that there is a valid reason for the dismissal remove the need to consider each relevant criteria under s.387. There are a number of other matters that the Commission considers relevant to the consideration as to whether the dismissal is or is not harsh, unjust or unreasonable.

The conduct of Dr Whelan

[50] Whilst Dr Whelan was the victim of an assault by the female patient his conduct before the assault is directly relevant in this matter.

[51] Dr Whelan gave evidence in this matter and his witness statement was Exhibit R1. Attached to and forming part of Exhibit R1 was a statement made by Dr Whelan to Monash Health on 2 April 2013.

[52] In his 2 April 2013 statement Dr Whelan described the lead up to the assault as follows:

“During the early morning, I became aware of a female patient yelling loudly from the ambulance triage area. I could not see the patient but the yelling was extremely loud and disruptive to the entire department, especially the critical care areas. I attended the area and recognised the patient as (name redacted). The triage nurse informed me of the clinical details and informed me that she was upset about being moved to the waiting room. (Name redacted) was yelling words to the effect that she was a regular patient and she demanded a cubicle bed. In the hope that she would calm down I left the area and attended to other departmental issues.

A short period later I had to return as her loud screaming did not cease and I felt I should try to persuade her to cease. After approaching her and asking her to be quiet she told me to "fuck off' a number of times. I asked her to cease yelling as it was unfair to unwell patient and the staff. This was followed by more abuse and yelling. I informed her that her behaviour was acting selfishly and not being fair to the other patients. After this she moved towards me and tried to strike me in the head.

I was aware that she may become violent and I was prepared for this outcome. I was able to avoid the brunt of the strike with her hand glancing my chin and lips without causing any significant wound to the skin. There was mild stinging pain for a couple of hours thereafter.

As the patient's hand came through, it was caught by one of the hospital security guards (James) and pulled her towards the door at the rear of the triage area. The patient fell forward off the ambulance trolley and stumbled forwards to the ground.” 4

[53] In his witness statement which was prepared on 28 August 2013 Dr Whelan adds some further detail as follows:

“Some thirty seconds later, I returned to the triage area to try to persuade Patient X to cease being so loud and disruptive. I approached Patient X, who was still sitting on the hospital trolley, and asked her to be quiet. Patient X told me to 'fuck off' several times. I implored Patient X to stop yelling and explained that we were there to assist her and that she needed to meet us halfway. Patient X continued to yell and to verbally abuse me. She told me that if I didn't treat her properly she would leave. I responded that we could not tolerate this kind of behaviour in the Emergency Department and that if she wanted to leave, she could. I told Patient X that she was behaving selfishly and was not being fair to the other patients.”  5

[54] Whilst the CCTV footage is without sound it is clear that the patient was agitated. The evidence given by Mr Swart, Group Manager Security Services for Monash Health was that it is necessary for hospital staff to deal with aggressive persons through trying to de-escalate the situation.

[55] The CCTV footage of the relevant incident shows Dr Whelan approaching the patient whist she is sitting on the ambulance trolley. Dr Whelan is seen standing at the foot of the ambulance trolley whilst having the exchange described in his two statements. Importantly the CCTV shows Dr Whelan using his arms to make exaggerated movements which are part of his exchange with the patient. The conduct of Dr Whelan appears to be nothing like an attempt to de-escalate the situation. Rather the arm waving and verbal language of Dr Whelan appear to inflame the situation and lead to the violent response from the patient.

[56] Mr Swart agreed that the actions of Dr Whelan in gesticulating with his arms whilst trying to stop the patient from yelling and being disruptive was counter-productive and was not actions that would assist in de-escalating the situation.

[57] The Commission specifically asked Mr Swart about the conduct of Dr Whelan.

“PN2004. VIDEOTAPE PLAYED

PN2005. THE COMMISSIONER: At this point, the security officer is acting appropriately in just trying to calm the situation down?---Mr Swart; That’s correct.

PN2006. He is not being aggressive in his hand movements; just seems to be aiming to calm the situation down a bit?---That’s right.

PN2007. The paramedics seem to be doing the same. Everyone seems to be calm, cool and collected. There’s another hospital member in the background. Dr Whelan comes into view but he is in - it looks like an alcove or something, and he is talking to another staff member; goes back to the patient. He then turns towards the patient but he is talking to another staff member. The security officer is just standing idly by. He moves out of view now and it’s only the two paramedics talking to the patient. We’re just under a minute from the action. Now, it’s 2.52.00 on the CCTV. Dr Whelan has now approached the patient. One of the paramedics who is standing closer to the patient has stepped back so as to give Dr Whelan, who is the clinician uninterrupted access to the patient?---That’s right.

PN2008. Now, it’s 2.52.05 and 06 and the patient is getting agitated, but look at the hand movements of Dr Whelan. They’re expansive hand movements. Dr Whelan’s hand movements, his whole gesture, his body language, do not appear to be consistent with conduct that would de-escalate. It seems to be consistent with conduct that would escalate?---I cannot comment on that, but certainly it appears that way.

PN2009. It appears that way, does it?---Certainly appears that way.”

And further:

“PN2013. THE COMMISSIONER: So the patient has been aggressive prior to Dr Whelan making these exaggerated and expansive hand movements?---Mr Swart: Yes.

PN2014. And then the patient gets more aggressive?---Yes. Could the doctor’s - - -

PN2015. In the context of what we see - because we don’t have the audio so we don’t know what is said. In the context of what we see, from your perspective as a professional, is it conduct that was aimed at de-escalating, or conduct that had the possibility of escalating the problem?---It has the potential of escalating.”

And further:

“PN2024. THE COMMISSIONER: Now, if we go through that and watch Dr Whelan in all of this, it appears to me - and you can give some evidence on this from your perception of it; you know the hospital better. It appears to me, looking at the physical positioning of Dr Whelan, that if he moved - it might have been by a millimetre, but he has not at any stage - and this is after he has done his expansive hand gestures, which possibly inflames the situation. He does not at any stage engage in a de-escalating exercise of stepping back. His only movement is at the very end where, as the patient falls, it’s apparent that his arms are following the patient either to catch her, to hold her, something, and that’s his only movement?---Mr Swart: That is correct.

PN2025. Is that a correct analysis?---That is correct.

PN2026. And is it a correct analysis that he makes no move to de-escalate?---It does not appear to be the case.”

[58] Even without sound on the CCTV it is relatively easy to conclude that as Dr Whelan was telling the patient to, either, go and wait in the waiting room or leave, he was making exaggerated movements with his arms. It is abundantly clear to the Commission that
Dr Whelan’s action escalated the situation and escalated the response by the patient from verbal aggression with exaggerated arm movements to physical assault on Dr Whelan.

The obstruction caused by the paramedics

[59] It is clear from the CCTV footage that at the time that Mr Hutchinson intervened to restrain the patient as she was striking Dr Whelan the presence of the two paramedics added to the difficulty in Mr Hutchinson easily approaching the patient and restraining her.

[60] One of the paramedics is standing to the side of and at the front of the ambulance trolley while the second paramedic is standing at the side of the ambulance trolley facing forward towards his colleague and Dr Whelan whilst holding a set of movable steps with a handrail against the side of the ambulance trolley so as to allow the patient to step down off the ambulance trolley. The steps were positioned so that the patient who was sitting on the ambulance trolley with her legs dangling over the side of the ambulance trolley could simply move slightly forward off the trolley and her feet would then be on the top step and she could then step down on to the next step and then onto the ground.

[61] In order for Mr Hutchinson to gain access to the patient to restrain her he had to approach the ambulance trolley at a point forward of where the patient was sitting and between the paramedic near the front of the trolley and the steps held against the trolley.
Mr Hutchinson was approaching the patient at an angle.

[62] As Mr Hutchinson takes hold of the patient’s arm to restrain her, the paramedic at the front of the ambulance trolley steps back and away from the ambulance trolley but the paramedic holding the steps remains in place holding the steps against the ambulance trolley and does not move until after the patient has hit the floor.

[63] The presence of the set of metal steps creates a physical barrier that Mr Hutchinson had to work around in order to approach the patient and then restrain her to prevent her from striking Dr Whelan.

The training of Mr Hutchinson

[64] Evidence was given by Mr Swart as to the nature of the training given to
Mr Hutchinson in addition to the general industry training Mr Hutchinson had received in gaining a Certificate III in Security Operations. Mr Swart’s evidence was that Mr Hutchinson had received in house training delivered by Monash Health’s mental health team in a program called CARE.

[65] Attached to Mr Swart’s witness statement, Exhibit R2, was an extract from the CARE training material. Mr Swart’s evidence described a comprehensive training program in which participants were taught to deal with aggressive patients or visitors.

[66] The Commission specifically asked Mr Swart about the way in which the CARE training was delivered.

“PN1966. THE COMMISSIONER: Your evidence is also that there’s extensive training that is given to the security officers. They come trained because they have to have a certificate, but the hospital gives them training. Do you actually provide training that replicates situations?---Mr Swart: Absolutely.

PN1967. So you have an ambulance trolley, you have a bed, you have chairs?---That’s correct.

PN1968. You have a room set up so that it’s identical to what would occur in a hospital?

---That is correct, sir.

PN1969. And you have people who act as either visitors or patients who engage in aggression?---That is part of the training and that provided by mental health through the organisation, and that is included in that training and they work through physically all the holds and the patient in different positions, how a patient is taken down if need be, if a patient is to be restrained within a chair, on a bed, on a trolley, and if a person is standing, how to restrain such a person, preventing for - - -

PN1970. Did Mr Hutchinson have that sort of training?---Yes, he did.

PN1971. Does that training create what would appear to be real-life situations?---That is the aim of the training, yes.

PN1972. So the security officer who is being trained has no idea what action may occur by the person who is portraying the patient or the visitor?---That’s correct.

PN1973. Then the security officer has to respond to that?---That is correct. It’s not the security officer only, it is the total group, because security officers are not trained separately. They are trained with the clinical staff as well so that they have a coordinated response and it is not by security personnel only.

PN1974. Would that training have set up a situation similar to what we have seen on the video?---Similar situations would have been covered off within the training.

PN1975. How life-like would the simulated training be?---As close as possible to a situation. Obviously you can’t have a real situation but the attempt is to make it as close as possible.

PN1976. So would your actor-aggressor actually throw a punch towards someone?---Yes, they do. They do aggress and for that purpose, they use a security officer as part of - to be the aggressor in all of the circumstances, or part of the training, yes.

PN1977. Does the training look at the mental ability of the person responding? Do you train them in risk assessment so that they know how to assess the risk and therefore know how to pick the proper response?---That is correct.”

[67] After the Commission had concluded asking questions of Mr Swart counsel for both parties were invited to ask any further questions of Mr Swart in relation to any matter raised by the Commissions questions.

“PN2037. MR CHAMPION: You mentioned training, and this is a reference to the CARE training, and I understand it’s training led by - that’s the training Mr Hutchinson would have done in August 2010? That’s so? Could you just say yes or no for the transcript, sir?---That’s correct.

PN2038. He told me, just while he was sitting behind me - there was no evidence of this yesterday - that that training is a room set up with some mats on the floor and a chair. That’s the level of simulation that happens. Would you agree with that, that that’s what happens, or you don’t know?---I can’t say because I don’t attend all the training sessions, so I can only - the information I have is what the trainers provide me with and what the program the department head provide me. I do go past when training sessions occur but obviously not all of them, and definitely there’s more than one trainer so there’s different trainers so they could have a different scenario but - - -

PN2039. He didn’t have the benefit of an ambulance trolley is what he told me?---Yes.

PN2040. If he says that, he may well be right. Is that - - -?---Yes. I can’t confirm that and it would be inappropriate because I - - -

PN2041. You weren’t there?---I’m not at all the training that take place, no.

PN2042. That was the only issue I wished to raise, Commissioner.

PN2043. MR RINALDI: Mr Swart, have you seen training with trolleys?---Yes, I have.

PN2044. And beds?---Yes, I have.”

[68] It is very clear that Mr Swart cannot give evidence as to the actual delivery of the CARE training to Mr Hutchinson and the evidence would at the very least suggest that the training given to Mr Hutchinson was not in the form of real life situations such as faced by
Mr Hutchinson on the morning of 29 March 2013.

[69] Training that looks good on paper may not necessarily translate into effective training if the training lacks real life situations.

[70] To state the obvious the CCTV footage at the centre of this matter provides a valuable training tool for security officers. Given that the evidence in this matter is that there are constant instances of aggressive behaviour by patients and visitors that need to be properly managed by Monash Health staff I would presume that Monash Health has a good collection of videos of actual situations which would provide a more effective resource for training in real life situations than is or could be done by having a chair on a mat in a training room.

The policies of Monash Health

[71] The policies of Monash Health which Mr Hutchinson was required to comply with are at the very least ambiguous.

[72] Mr Swart in his witness statement, Exhibit R2, at paragraph 27 said: “The Restraint Procedure also sets out the procedure which IS to be followed by the Respondent's staff prior to and during the restraint of a patient. The restraint of a patient may only be undertaken under the instruction of a clinician.

[73] Mr Swart in his witness statement, Exhibit R2, at paragraph 41 said: “The restraint initiated by the Applicant on the patient was not made at the direction of Dr Whelan and was not clinically driven, contrary to the Respondent’s policies.”

[74] The relevant policies were attached to Exhibit R2.

[75] It is quite clear that the actions of Mr Hutchinson in restraining the patient to prevent her from striking Dr Whelan is in breach of the plain reading of the policies of Monash Health.

[76] Yet Mr Swart agreed that Mr Hutchinson acted properly in intervening to stop the patient from striking Dr Whelan.

[77] The Commission questioned Mr Swart in relation to paragraph 27 of Exhibit R2 and Mr Swart gave examples of incidents where a security officer could and should intervene to restrain a patient without any instruction from a clinician. Mr Swart agreed with the following proposition put him by the Commission.

“PN1958. THE COMMISSION: So paragraph 27 then of your witness statement is not to be taken at face value. It’s to be read as being highly qualified?---Mr Swart: Yes, that’s correct, Commissioner.”

[78] Whilst Mr Swart accepts that the policies of Monash Health are to be applied as if they are highly qualified the fact is that none of the qualifications actually appear in the policies.

At its simplest the policies are misleading. At its worst the policies create a significant conflict for a security officer.

[79] If in the present matter Mr Hutchinson complied with the policies of Monash Health he would have waited until Dr Whelan approved his intervention before he attempted to approach the patient. Given that Dr Whelan’s evidence was that he was not aware of the presence of Mr Hutchinson until Mr Hutchinson reached to grab the patient’s arm it is not likely that Dr Whelan would have asked for or approved of Mr Huchinson’s intervention until after the patient had landed some blows on Dr Whelan.

[80] As is clear from the present matter any security officer who does not strictly comply with the policies of Monash Health can find themselves in the position where Mr Swart as Group Manager Security Services can accuse them of breach of the policies of Monash Health (which is what he did in relation to Mr Hutchinson).

[81] The position of Monash Health and Mr Swart is hypocritical in relation to the requirement to comply with policies.

Other relevant matters

[82] I have had regard to the length of time Mr Hutchinson has been employed by Monash Health and to the otherwise good employment record of Mr Hutchinson and to the fact that loss of employment has created a significant financial burden for him.

The criteria of s.387(b) to (g)

[83] Mr Champion conceded at PN349 that Mr Hutchinson “does not mount a challenge that he was denied procedural fairness, therefore it's conceded at the outset that subsections 387(b) to (g) are not determinative of this case that the hospital did sufficient to permit
Mr Hutchinson to have an opportunity to put his case.”

[84] The concession made by Mr Champion does not mean that the criteria in s.387(b) to (g) are not relevant to a consideration as to whether the dismissal is harsh, unjust or unreasonable. It is clear that Monash Health did accord procedural fairness to Mr Hutchinson but in all of the circumstances of this case it is clear that each of the criteria in s.387(b) to (g) are neutral to a determination as to whether the dismissal is or is not harsh, unjust or unreasonable.

Conclusion as to Harsh, Unjust or Unreasonable dismissal

[85] The criteria which weighs heavily in favour of a finding that the dismissal was not harsh, unjust or unreasonable is s.387(a).

[86] The criteria which weigh in favour of a finding that the dismissal was harsh, unjust or unreasonable are each of the matters considered under s.387(h).

[87] There is one matter considered under s.387(a) which in my view supports a finding that the dismissal was harsh unjust or unreasonable. That matter is that Mr Hutchinson did not intend to inflict an injury on the patient and Mr Hutchinson did not intend to pull the patient off the ambulance trolley when he commenced to restrain her from striking Dr Whelan.

[88] I have weighed each relevant criteria and come to the conclusion that the dismissal was not harsh, unjust or unreasonable. The balance is significantly weighted in favour of that finding.

[89] The application in this matter is dismissed.

COMMISSIONER

Appearances:

Mr M. Champion of Counsel for applicant.

Mr M. Rinaldi of Counsel for respondent.

Hearing details:

2014.

Melbourne:

6, 7 March.

 1   Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371 at 373, 7 July 1995.

 2   Rode v Burwood Mitsubishi, Print R4471 at pn 19.

 3   Briganshaw v Briganshaw, [1938] 60 CLR 336 at 361 and 362.

 4   Attachment KW-1 to Exhibit R1, paragraphs 2-4.

 5   Exhibit R1 at paragraph 10.

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