Kelvin Walsh v Ambulance Victoria
[2014] FWC 482
•20 JANUARY 2014
[2014] FWC 482 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kelvin Walsh
v
Ambulance Victoria
(U2012/12308)
COMMISSIONER CRIBB | MELBOURNE, 20 JANUARY 2014 |
Application for unfair dismissal - dismissal harsh - compensation.
[1] The majority decision 1 of the Full Bench in the appeal against the decision2 at first instance in respect of this application, stated as follows:
“[10] We are satisfied that no opportunity was provided to Mr Walsh to separately address outcome. This was a failure to give Mr Walsh the full benefit of the disciplinary policy applicable to his misconduct. We are satisfied that Commissioner Cribb did not consider the absence of that opportunity, and that the lack of an opportunity to respond as to penalty is an issue which could directly affect the Commissioner's consideration of whether or not the termination of Mr Walsh’s employment was harsh, unjust or unreasonable.
……..
[12] Secondly, the Commissioner recounted the submissions of the parties concerning the Appellant’s length of service, unblemished record, age and chances of finding employment with the Respondent as the only employer of paramedics in Victoria. It is not apparent to us that the Commissioner gave sufficient consideration to those matters in determining that the termination was not harsh. Her consideration of those issues focused on whether or not the conduct occurred rather than harshness. Having regard to the decision of the majority of the Full Bench in Lindsay Douglas Lawrence v Coal & Allied Mining Services Pty Ltd (t/a Mt Thorley Operations Warkworth) if the Commissioner had given sufficient weight to the matters referred to above, it is difficult to understand (in the absence of the Commissioner having not set out her reasoning) how it was concluded that the dismissal of the Appellant was anything other than manifestly harsh.” 3(references omitted)
[2] The majority of the Full Bench then referred the application back for my “further consideration”. 4
[3] Therefore, there are two matters which have been remitted back for further consideration in determining whether Mr Walsh’s dismissal was harsh, unjust or unreasonable:
1. The failure by Ambulance Victoria (AV) to fully follow the disciplinary policy by not providing Mr Walsh with an opportunity to separately address outcome.
2. The mitigating issues set out in the majority decision, namely, the applicant’s length of service, age, unblemished record and chances of finding alternative employment. 5
I will deal with each of these matters in turn.
1. Failure to follow disciplinary policy
(a) United Voice
[4] It was submitted by United Voice (the union) that the Commission needs to give weight to the fact that AV failed to allow Mr Walsh to be heard on what an appropriate disciplinary remedy should be. The union argued that it is a relevant fact that AV is a large employer with experienced and dedicated human resources specialists. It was contended that it is reasonable to expect that such an employer will comply with its own policies. 6
[5] The union also argued that, if weight is given to this, the Commission must find that Mr Walsh was denied procedural fairness and due process by AV. It was conceded that, of itself, a lack of procedural fairness is not necessarily conclusive in determining whether a dismissal is unfair. 7
(b) Ambulance Victoria
[6] On the other hand, AV argued that the concerns of the Full Bench majority about this issue could be addressed by a more detailed consideration of the circumstances of the incident, the investigation and the disciplinary process followed. 8 It was contended that the Full Bench majority’s concern goes to, at most, a technical failure to follow procedural limb of the employer’s policy. Further, AV argued that it had been clear in its communications with Mr Walsh that he would have an opportunity to respond to any mitigating factors.9
[7] In addition, AV submitted that the finding of the Full Bench majority cannot, and does not, change the original determination that the dismissal was not harsh, unjust or unreasonable. This is because, amongst other things, the failure is but one matter to be taken into account and is not determinative as to whether the dismissal was unfair. 10
(c) Considerations and conclusions
[8] In its decision, the majority of the Full Bench made a finding that Mr Walsh was not provided with an opportunity to separately address the possible outcome of the disciplinary process. Further, the majority found that this constituted a failure to give Mr Walsh “the full benefit of the disciplinary policy”. 11 In other words, the majority of the Full Bench found that Mr Walsh had not been accorded procedural fairness in this respect.
[9] Given this finding, and the protocol that single members are bound by Full Bench decisions, it is then a question of whether, in determining if the dismissal was harsh, unjust or unreasonable, consideration of this finding renders the dismissal harsh, unjust or unreasonable. It was common ground between the parties that a lack of due process/procedural fairness is not solely determinative in respect of whether the dismissal is unfair. I concur with this view. It is settled authority that a lack of procedural fairness is one matter to be taken into account but that it does not provide conclusive weight. 12
2. Degree of harshness
(a) United Voice
[10] United Voice submitted that the majority of the Full Bench determined that weight should be given to length of service, unblemished record, age and chances of finding alternative employment. 13 Further, it was argued that the Full Bench majority had directed that regard be had to the decision in Lindsay Douglas Lawrence v Coal & Allied Mining Services Pty Ltd (t/a Mt Thorley Operations Warkworth)14 (Lawrence). It was stated that, if regard is had to the Lawrence decision, the Commission can find that Mr Walsh’s dismissal is harsh.15
[11] The union compared the majority Full Bench decision in this matter with that of the Full Bench majority in Lawrence and argued that the two cases were analogous. It was contended that:
● The employee in Lawrence had breached a “golden rule” of safety although no one was hurt. AV have alleged that Mr Walsh breached a core duty but that no one was hurt (Mr Walsh was aware that a road crew was arriving at the scene). 16
●Both companies disciplinary policy provided for outcomes other than dismissal for serious misconduct. 17
●Both employees were of a similar age. 18
●Both employees had identical length of service. 19
●Both employees had unblemished records and had never been disciplined prior to the incident that led to their respective dismissals. 20
[12] Finally, the union submitted that, in light of the Full Bench majority’s finding regarding a failure of process and the Lawrence decision, the Commission can find that Mr Walsh’s dismissal was harsh, taking into the account the mitigating factors highlighted by the Full Bench majority. 21
(b) Ambulance Victoria
[13] For its part, AV argued that the misconduct involved in this case is far more serious than in Lawrence. It was stated that this case was not one of technical risk. Rather, there was a real and serious risk with a patient trapped in a car needing urgent medical attention. 22 It was contended that the misconduct involved knowingly delaying an emergency response. In weighing up the various factors, it was said that the seriousness of the conduct outweighed those factors indicating unfairness.23 AV argued that, in Lawrence, the relatively low level policy breach involved was outweighed by the factors indicating harshness.24
[14] In this case, although the length of service, age and employment history are similar to the Lawrence case, it was argued that there are a number of other factors (the nature of the employment and the gravity of the misconduct involved) which are materially different and bear on the overall fairness of the dismissal. 25
[15] It was also contended that Mr Walsh’s length of service is an issue which goes both ways. Mr Walsh’s length of service was said to mean that he knew the ramifications of his behaviour. 26 In terms of Mr Walsh’s unblemished record, Mr Holman’s evidence was highlighted where he observed that he was not sure that the organisation would allow a pattern (of this type of behaviour) to occur.27 AV further argued that there are other employers in patient transport.28
[16] Further, AV submitted that, for every case where valid reason was outweighed by other factors leading to harshness (e.g. Lawrence), there are other cases where the opposite conclusions were reached. The Commission was referred 29 to Selak v Woolworth30 (Selak), Reid v No.1 Riverside Quay31 and DP World Sydney Limited v Lambley32 (Lambley). It was argued that Lambley and Selak show that long and that and unblemished service will not be enough to sustain a finding of harshness.33 In addition, it was contended that, in Selak, in balancing all of the factors, those suggesting harshness were outweighed by the seriousness of the policy breach.34
(c) Considerations and Conclusions
[17] The majority of the Full Bench has determined that further consideration should be given to Mr Walsh’s length of service, unblemished record, age and chances of finding employment given that the respondent is the only employer of paramedics in Victoria, in determining whether Mr Walsh’s dismissal was harsh, unjust or unreasonable.
[18] Section 387 of the Fair Work Act 2009 (the Act) sets out the criteria for determining harshness etc. In making such a determination, the Commission is required to take account of all of the criteria and weigh them up accordingly.
[19] In this case, the different criteria (matters) to be taken account of are:
● Section 387(a) - valid reason. The finding, in the decision 35 at first instance, that there was a valid reason for Mr Walsh’s dismissal was not disturbed by the Full Bench.36 That decision also found that Mr Walsh did not want to go out on the late job and that he delayed the departure so that Mr Brereton would arrive and go instead of him.37 This finding was not disturbed by the Full Bench either.
●Section 387(b) - notified of the reason. Mr Walsh was notified of the reason for his dismissal. 38
●Section 387(c) - procedural aspects. The majority of the Full Bench found that AV failed to give Mr Walsh the full benefit of the disciplinary policy. 39
●Section 387(d) - support person. The union sent Mr Walsh’s response to AV on Mr Walsh’s behalf. 40
●Section 387(e). This is not relevant in this case.
●Section 387(f) and (g) - AV is a large employer with a dedicated human resources area which was involved in the disciplinary process. 41
●Section 387 (h) - any other matters. In light of the Full Bench majority decision, Mr Walsh’s length of service, his age, his unblemished record and the chances of finding employment when AV is the only employer of paramedics in Victoria will be further considered.
[20] So, in weighing up all of the matters in section 387 of the Act, and giving further consideration to the majority Full Bench finding regarding a lack of procedural fairness, together with the issues set out in the paragraph above, it would seem that:
● Matters favouring harshness:
- lack of proper process/procedural fairness in Mr Walsh not being given an opportunity to address the outcome of the disciplinary process.
- Mr Walsh’s age - it may be more difficult to find employment.
- length of service - Mr Walsh is a long serving employee.
- unblemished record - this is the first disciplinary issue.
- the chances of Mr Walsh finding employment when AV is the only employer in Victoria of paramedics are remote.
● Matters favouring fairness:
- valid reason for Mr Walsh’s dismissal which was deliberately delaying a departure so that the oncoming crew could go instead of him.
[21] Therefore, taking account of each of the matters in section 387 of the Act and weighing them up all up, on balance, I determine that Mr Walsh’s dismissal was harsh.
[22] Accordingly, it follows that, pursuant to section 385 of the Act, Mr Walsh has been unfairly dismissed.
REMEDY
[23] Section 390 of the Act sets out when the Fair Work Commission may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:
“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.”
[24] With respect to the requirements of section 390, I am satisfied that Mr Walsh was protected from unfair dismissal at the time of his dismissal (section 390(1)(a)) and that he has been unfairly dismissed (section 390(1)(b)). Further, Mr Walsh has made an application under section 394 of the Act (section 390(2)).
Reinstatement or compensation
[25] Section 390(3) states that the Fair Work Commission must not order the payment of compensation unless two conditions have been met. The first condition is that the Fair Work Commission is satisfied that reinstatement is inappropriate (section 390(3)(a)).
Reinstatement
(a) United Voice
[26] Mr Walsh seeks to be reinstated, to the position he was employed in a immediately before the dismissal, on the basis that:
● AV has never challenged Mr Walsh’s clinical expertise and has not submitted that it has lost trust and confidence in his ability to correctly treat a patient. 42
●Mr Walsh saved lives for 25 years while working for AV and it is in the interests of all Victorians that Mr Walsh be allowed to continue doing so. 43
●Mr Walsh’s qualifications (three) allow him to work as a paramedic, MICA paramedic and a MICA flight paramedic (helicopter). 44
●It is in the public interest that Mr Walsh be reinstated to the position he worked in immediately prior to his dismissal. 45
●Mr Walsh is aware that he would have to undertake routine refresher training to recommence working as a paramedic. 46
(b) Ambulance Victoria
[27] Ambulance Victoria opposed the reinstatement of Mr Walsh on the basis that it would be impracticable as AV no longer has trust and confidence in Mr Walsh to perform his duties. It was stated that, in the interests of the community it serves, it is not open to AV to take risks concerning the immediacy of response by its employees. 47
[28] This was because:
- is particularly so for Air Ambulance paramedics who are dispatched to time critical cases. 48
● Integral to the ability to correctly treat a patient is the immediacy of response in providing treatment to that patient.
[29] AV submitted that it cannot have confidence in Mr Walsh responding without delay to the needs of patients. Further, it stated that it cannot afford to see if a pattern develops before concluding that employment is untenable. 49
[30] Further, AV contended that its resistance to reinstatement was also based on the seriousness of Mr Walsh’s misconduct. It was said that Mr Walsh’s misconduct feel well below the expectation of the community that AV delivers best practice in all aspects of its service, including immediacy of response. 50 In addition, it was argued that Mr Walsh’s response following substantiation of the allegations lacked insight into the serious nature of his misconduct.51
(c) Considerations and Conclusions
[31] Mr Walsh is seeking reinstatement to the position he held immediately prior to his dismissal, that of MICA flight paramedic. The primary remedy under the Act is reinstatement.
[32] I have carefully considered all of the material on this issue. On the one hand, the union is arguing that, Mr Walsh’s high level of skills should not be lost to the community, and that AV has not lost trust and confidence in Mr Walsh’s ability to correctly treat a patient. This is on the basis that Mr Walsh’s clinical ability has never been challenged by AV.
[33] On the other hand, AV is saying that it has lost trust and confidence in Mr Walsh responding without delay to the needs of patients. Given the seriousness and nature of Mr Walsh’s misconduct, AV is arguing that it is not open to it to take risks concerning the immediacy of response by its employees.
[34] The first thing that needs to be said is that, in this case particularly, the task of weighing up and balancing the competing views as to whether it is appropriate or inappropriate to reinstate Mr Walsh, is particularly difficult. This is because it is acknowledged that Mr Walsh was/is very clear in his desire to be reinstated to his former position with AV as a MICA flight paramedic. However, I have formed the view that it is reasonable for AV, in all of the circumstances, to have lost trust and confidence in Mr Walsh responding without delay to the needs of patients. Responding immediately to an emergency is a core part of AV’s service to the community and a core part of the job of a MICA flight paramedic. Given the nature of Mr Walsh’s misconduct, it is open to AV to have formed the view that it has lost trust and confidence in Mr Walsh’s ability to respond immediately. Therefore, for these reasons, I am satisfied that reinstatement of Mr Walsh, to the position he held immediately before his dismissal, is inappropriate.
[35] For the sake of completeness, I am also satisfied that it is inappropriate to reinstate Mr Walsh to any of the other emergency response paramedic positions. This is for the same reasons as set out in the paragraph above. Further, it is noted that the union is not seeking reinstatement to an alternative position for Mr Walsh. AV submitted that, in any event, there were no suitable alternative positions available.
Compensation
[36] The second condition is set out in section 390(3)(b) of the Act. This requires that the Fair Work Commission consider whether it is appropriate, in all of the circumstances of the case, to order compensation. Taking into account all of the circumstances of this matter, an order for payment of compensation, is considered appropriate.
[37] In the event that the Commission decided to make an order for payment of compensation, both the union and AV sought an opportunity to provide evidence on those matters going to compensation. The matter will be set down for a Directions conference.
Written submissions:
Ambulance Victoria, 19 November 2013
United Voice, 23 November 2013
Ambulance Victoria, 28 November 2013
1 [2013] FWCFB 6867
2 [2013] FWC 1999
3 [2013] FWCFB 6867 at paragraph 10 and 12
4 Ibid at paragraph 13
5 Ibid at paragraph 12
6 Outline of Submissions of the Appellant on Remittal from the Full Bench, dated 23 November 2013, at paragraphs 10 - 12
7 Ibid at paragraphs 13 - 14
8 Outline of Submissions of the Respondent on Remittal from the Full Bench, dated 19 November 2013, at paragraph 20 and
Reply Submissions of the Respondent on Remittal from the Full Bench, dated 28 November 2013, at paragraph 4
9 Outline of Submissions of the Respondent on Remittal from the Full Bench, dated 19 November 2013, at paragraphs 4 - 19
10 Ibid at paragraphs 22 - 23 and Reply Submissions of the Respondent on Remittal from the Full Bench, dated 28 November
2013, at paragraphs 6 - 7
11 [2013] FWCFB 6867 at paragraph 10
12 Crozier v Australian Industrial Relations Commission [2001] FCA 1031, 1 August 2001, at paragraph 15
13 Outline of Submissions of the Appellant on Remittal from the Full Bench, dated 23 November 2013, at paragraph 21
14 ([2010] FWAFB 10089
15 Outline of Submissions of the Appellant on Remittal from the Full Bench, dated 23 November 2013, at paragraphs 32 and
34
16 Ibid at paragraph 25
17 Ibid at paragraph 26
18 Ibid at paragraph 27
19 Ibid Paragraph 28
20 Ibid at paragraphs 29 - 30
21 ibid at paragraphs 33 - 34
22 Reply Submissions of the Respondent on Remittal from the Full Bench, dated 28 November 2013, at paragraph 13
23 Outline of Submissions of the Respondent on Remittal from Full Bench, dated 19 November 2013, at paragraphs 28 - 30
24 Reply Submissions of the Respondent on Remittal from Full Bench, dated 28 November 2013, at paragraph 12
25 ibid at paragraph 14
26 Outline of Submissions of the Respondent on Remittal from the Full Bench, dated 19 November 2013, at paragraph 31
27 Ibid
28 Ibid
29 Reply Submissions of the Respondent on Remittal from Full Bench, dated 28 November 2013, at paragraphs 15 - 16
30 (2008) IR 267
31 [2008] AIRC 50
32 [2013] FWCFB 9230
33 Reply Submissions of the Respondent on Remittal from the Full Bench, dated 28 November 2013, at paragraph 17
34 Ibid at paragraph 16
35 [2013] FWC 1999 at paragraph 314
36 [2013] FWCFB 6867 at paragraphs 1 and 26 - 34
37 [2013] FWC 1999 at paragraph 314
38 ibid at paragraph 317
39 [2013] FWCFB 6867 at paragraph 10
40 [2013] FWC 1999 at paragraph 324
41 ibid at paragraph 326
42 Outline of Submissions of the Appellant on Remittal from the Full Bench, dated 23 November 2013, at paragraphs 44 - 45
43 Ibid at paragraphs 46 - 47
44 Ibid at paragraphs 48 - 49
45 Ibid at paragraphs 50 - 52
46 Ibid at paragraph 53
47 Outline of Submissions of the Respondent on Remittal from the Full Bench, dated 19 November 2013, at paragraph 36
48 Reply Submissions of the Respondent on Remittal from the Full Bench, dated 28 November 2013, at paragraph 20
49 Ibid
50 Ibid at paragraph 21
51 Ibid
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