Mr Conrad Bruppacher v The Commissioner for Public Employment
[2022] FWC 797
•10 JUNE 2022
| [2022] FWC 797 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Conrad Bruppacher
v
The Commissioner for Public Employment
(U2021/7704)
| COMMISSIONER RIORDAN | SYDNEY, 10 JUNE 2022 |
Application for an unfair dismissal remedy
On 31 August 2021, Mr Conrad Bruppacher filed an application (the Application) with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant was dismissed on 17 August 2021.
In its Form F3 – Employer Response, The Commissioner for Public Employment (the Respondent) raised objections on the grounds that:
a)The Applicant was not dismissed by the employer; and
b)The application is statute barred pursuant to s.725 of the FW Act.
The Applicant’s employment was covered by the Northern Territory Public Sector 2017-2021 Enterprise Agreement (the Agreement).
The Applicant seeks reinstatement and compensation for lost wages.
Directions were set for filing of materials addressing the Jurisdictional and Substantive matters.
The Hearing was conducted in person in Darwin on 22 March 2022. Ms Catherine Matarazzo, Industrial Agent for Lucio Matarazzo Pty Ltd, was granted leave to appear for the Applicant at the Hearing. The Respondent was represented by Mr Mark Hathaway, Employee Relations Manager for the Respondent.
The Applicant appeared and gave evidence on his own behalf at the Hearing. The Applicant also relied on witness evidence given by Mr Murat Kurban, Security Supervisor at the Royal Darwin Hospital.
By way of an Order to Appear, the Applicant relied on evidence by Ms Vicki Telfer PSM, Commissioner for Public Employment for the Northern Territory.
The following persons appeared and gave evidence for the Respondent at the Hearing:
· Ms Christina Holland, Senior Grievance Manager of the Public Sector Appeals and Grievance Reviews team for the Respondent; and
· Ms Rachael Dunn, Director of the Public Sector Appeals and Grievance Reviews team for the Respondent.
Background
The Applicant was employed with Top End Health Service commencing in 2017 as a Security Guard working at Royal Darwin Hospital.
On 16 July 2019, the Applicant was on duty patrolling the Royal Darwin Hospital and was directed to attend the carpark by the Security Control Room who had seen two males suspected of tampering with vehicles. The Applicant and his offsider apprehended the two adults in the carpark. The Police arrested one of the men (Person 2) whilst the other was allowed to leave. CCTV footage recorded the Applicant’s interactions with these men prior to the Police arriving at the carpark. The Applicant had previously dealt with the two men earlier in the evening on the grounds of the Hospital.
As per standard procedure, the Applicant entered this incident report in an internal recording keeping database known as ‘Riskman’.
The Respondent claimed that the Applicant kicked and punched Person 2 as captured by CCTV footage, which the Applicant omitted from his incident report.
On 29 July 2019, the Respondent provided the following letter to the Applicant:
“Dear Mr Bruppacher
RE: ALLEGED BREACH OF DISCIPLINE
As the Executive Director of Royal Darwin and Palmerston Hospitals for the purposes of sections 49A(2) and 49E of the Public Sector Employment and Management Act (PSEMA) I am considering whether there are reasonable grounds for me to be satisfied that you have committed the suspected breaches of discipline under section 49 of the PSEMA set out below.
Breach 1:
s49(a) An employee who fails to uphold the performance and conduct principle or otherwise contravenes the Act commits a breach of discipline.
Particulars of Breach 1:
(a) You are an ongoing employee of the Top End Health Service since 18 July 2017 currently a working as an AO4 Senior Security Officer at the Royal Darwin Hospital (sic) (RDH) campus.
(b) Section 5(F) of the PSEMA sets out the performance and conduct principle which provides as follows:
5F Performance and conduct principle
(1) The performance and conduct principle is that a public sector officer must do the following:
(a) carry out the officer's duties as follows:
(i) objectively, impartially, professionally and with integrity;
(ii) to the best of the officer's ability;
(iii) in accordance with the Act and any code of conduct applicable to the officer under section 16(2)(c);
(b) treat other public sector officers, other persons in the workplace and members of the public fairly, equitably and with proper courtesy and consideration;
(c) ensure effective, efficient and appropriate use of public resources;
(d) avoid actual or apparent conflicts of interest between personal or other interests and duties as a public sector officer;
(e) ensure the officer's personal conduct does not:
(i) adversely affect the performance of the officer's duties as a public sector officer; or
(ii) bring the Public Sector into disrepute.
(c) Public Sector Employment Instruction 12 (Code of Conduct) is applicable to you under section 16(2)(c) of the PSEMA. The Code of Conduct relevantly provdes (sic) that as follows:
5. Familiarity with Principles
5.1. A Public Sector Officer must familiarise him or herself with the Code, and the General Principles of Part 1A of the Act.
6. Breach of Discipline
6.1. Disregarding the Code and Part 1A of the Act, or acting in a manner inconsistent with those principles, is a breach of discipline under section 49(a) of the Act.
7. Standards
7.1. In order to maintain public confidence in the integrity of the Northern Territory Public Sector, a Public Sector Officer must exhibit, and be seen to exhibit the highest ethical standards in carrying out his or her duties, and must pursue, and be seen to pursue, the best interests of the people of the Northern Territory.
8. Trust and Confidence
8.1. It is essential for the proper working of Government that a Public Sector Officer retains the trust and confidence of his or her employer, colleagues and clients in the manner in which he or she discharges his or her official responsibilities.
9. Personal and professional behaviour
9.1. In the performance of his or her duties, a Public Sector Officer must:
a) exercise his or her best possible technical and/or professional judgement;
b) develop and maintain knowledge of his or her professional field;
c) commit time and energy to furthering the agency's purpose and achievements;
d) be familiar with and comply with the requirements of the Act, the Financial Management Act and other legislative, industrial or administrative requirements relevant to his or her official responsibilities;
e) have regard to all official guidelines concerning the performance of his or her assigned duties;
f) provide all necessary and appropriate assistance to members of the public and other Public Sector Officers;
h)seek to obtain value for public money spent and avoid waste or excessive use of public resources;
h) take reasonable care for his or her own, and others, occupational health and safety;i) follow reasonable directions relating to occupational health and safety;
j) use relevant safety equipment provided; and
k) report workplace accidents in accordance with occupational health and safety standards and programs as soon as practicable after they occur.
It has been reported to me that you were allegedly involved in an incident that has given rise to my suspicions that you have committed breache/s of discipline by your alleged actions on the evening of 16 July 2019.
According to the report and based on the the CCTV footage of the incident it is alleged:
(d) At 2230 on Tuesday 16 July 2019 you were involved in an incident in the car park of the Darwin Private Hospital involving two unidentified male members of the public.
(e) Another TEHS Security Officer, Mr Mosab Khazaleh was with you at the time of the alleged incident.
(f) On 16 July 2019 at 2230 you entered the grounds of the car park in the company of Mr Khazaleh.
(g) According to the Riskman Incident Report you lodged, number 77629, both males were suspected of tampering with vehicles.
(h) On entering the car park, one male was observed walking through the car park and the other was observed next to parked vehicles.
(i) The male who was walking away stopped and turned around as security approached.
(j) You approached the second male and proceeded to deliver three kicks to his knee region before taking him to the ground.
(k) You then struck the second male in the head region with your hand.
(l) The male who was assaulted by you was restrained on the ground until members of the NT Police arrived.
(m) On arrival, the male who had been assaulted by you was taken by Police and the other male was directed to leave and he subsequently walked off the campus grounds.
(n) On 16 July 2019 you entered an incident report in Riskman (Incident Number 77629) omitting the details concerning the three kicks and one punch you delivered to the male.
Based on the matters particularised at 1(d) - (n) above I suspect that you have failed to carry out your duties professionally or to the best of your ability in contravention of sections 5F(1)(a)(i)(ii) and (iii) and (e)(i) and (ii)of the PSEMA, and in breach of section 49(a) of the PSEMA.
Breach 2:
s49(c) An employee who in the course of employment or in circumstances having a relevant connection to his or her employment, disregards or disobeys a lawful order or direction given by a person having authority to give such an order or direction commits a breach of discipline.
Particulars of Breach 2:
(a) I refer to and rely upon the particulars set out at Breach 1 above.
(b) Based on the matters particularised at 1(d) - (n) above, I suspect that you have disregarded or disobeyed a lawful order or direction given by a person having authority to give such an order or direction, in the course of your employment, in breach of section 49(c) of the PSEMA and in breach of the Royal Darwin Hospitals Procedures and Instructions for Security Officers concerning the use of force.
Breach 3:
Particulars of Breach 3:
(c) I refer to and rely upon the particulars set out at Breach 1 above.
(d) Based on the matters particularised at 1(d) - (n) above, I suspect that you have been negligent or careless in the performance of your duties, in the course of your employment, in breach of section 49(e) of the PSEMA by failing to report the full details of the incident.
Breach 4:
Particulars of Breach 4:
(e) I refer to and rely upon the particulars set out at Breach 1 above.
(f) Based on the matters particularised at 1(d) - (n) above, I suspect that you have conducted yourself in an improper manner, in the course of your employment, in breach of section 49(f) of the PSEMA in that you physically assaulted a member of the public.
However, before I make a decision pursuant to section 49(A) of the PSEMA as to whether you have committed breaches of discipline under sections 49(a), (c), (e) and (f) of the PSEMA, I invite you to make submissions to me on whether you believe there are reasonable grounds for me to be satisfied that you have committed a breach of discipline.
In making your submissions you should also be aware that if, after considering your submissions, I am satisfied that you have committed a breach of discipline then I may take such aciton (sic) as I consider appropriate under section 49(C) of the PSEMA, Disciplinary action. I have accordingly enclosed a copy of section 49(C) of the PSEMA for your information.
The CCTV footage of the incident is available for viewing. Please contact Chrisala Gray, Senior Case Management Officer on telephone [redacted] and she will arrange for you view prior to making your submissions.
Your submissions on whether you have committed a breach of discipline should be in writing and reach me within fourteen (14) days of your receipt of this letter.
In accordance with s49E(1)(a),(b) and (c) I hereby suspend your employment, on full pay, pending me making a decision in relation to the suspected breaches. The suspension with pay will take effect as of 29 July 2019 and you will not be required to report for duty commencing your last shift tonight.
I enclose for your information a copy of sections 49, 49(A), 49(C) 49(E) and 49(f) of the PSEMA, a copy of "Employment Instruction Number 7 - Discipline" and "Employment Instruction 12 - Code of Conduct."
If you wish to discuss this matter further, please contact Ms Chrisala Gray Senior Case Management Officer on [redacted].
Yours sincerely
Allison Grierson
Executive Director Royal Darwin and Palmerston Region Hospitals
Top End Health Service29 July 2019”
On 21 August 2019, the Applicant provided a response letter as follows:
“To Allison Grierson
RE : Alleged breach of Discipline
I have read your letter and it has come to my attention that the information you received and put in this letter is incorrected
(g) According to the risk man 77629 both males were suspected of tampering with vehicles
(In fact on the risk man it was stated that)
# riskman #security then was informed that the two men were in fact breaking in to cars.
(h) On entering the car park one male was observed walking through the car park and the other was observed next to parked vehicles
# riskman# security apprehended one trying to run away. Then the one who was in the car tried to walk of but when seen that security had his friend came back and threatened security with
violence to let him go(j) you approached the second male and proceeded to deliver three kicks to his knee region before taking to the ground
(k) you then stuck the second male in the head region with your hand(survival ) conflict
2 force - use only the minimum force necessary to legally and effectively control the threat to you and those under your protection.
The second man came back only because he seen security had apprehended his partner in crime and this man did comply with security and no use of force was needed as he was not a threat.
The second man threatened security that he will kill us if we did not let his friend go and then started to walk towards security to carry out his threat.
As the man who was a big fit young indigenises man who security felt threatened and he was a major threat.
As the man became closer he began to lift his arms. He had ill kill you focus and look in his eyes
Then waved his arms around at the same time threatened security again if we did not let his friend go
As he got closer his Hans (sic) were placed higher around his groin as he was now going from verbal to physical with a shape up and was not following direction by security.
Security was not sure if he had a knife or screwdriver as he had been breaking in to cars and was ready to pull it out of his pocket or just go for a king hit.4. expectation - expect the worst to be mentally and physically prepared
Security now did a leg strike this is kicking the man in the middle of the thigh which is a no vital area and used for shock and unbalancing the aggressor.
The aggressor was a strong man and yes it took three kicks to bring him down
But when the man was sitting on the ground he did try to get up that's why I with a open hand pushed his head towards the ground and told the man to get down.
The man then complied with security and the use of forced cased at that point.
The leg strike is a self-defence move used by
#police
#army
#navy
# Private security
#ROH P3 trainingSecurity checked the surrounding area by visual to make sore it was clear and safe in case there might have been others in the area. It was clear security then moved the men to the curb of the car park and sat them up right. They were at no time restrained on the ground but just told do not move and stay there until security felt safe with noone was going to run in out of the dark .security asked the offender why did he break in the car. The offender admitted that he was at ROH to steal money or whatever he could get. HE also stated that he was going to try steal the car but security came to quick.
Police arrived and arrested one and informed security that he will be charged as we only had evidence on him unlawfully gaining access to a car via CCTV and all of what I have put down is in clear view on CCTV his friend was allowed to go as there was no proof of him stealing only being there. Security was then given a promise number by police and was informed that the man in custody was known by police for criminal activity in the area.
I will now go throw (sic) this by dot point
1. At around 2230 Security was on a foot patrol when I seen a man sleep outside the birth centre steeps
2. Security woke the man and informed him he cannot sleep outside the birthing centre and why was he here
3. The man replied he was in ED
4. Security told the man that he must return to ED or leave the grounds
5. Then man said that he will just leave
6. Security then grabbed the two white blackest of him and started to walk with the man
7. As security and the ma was at the taxi rank a second man walked from the cafe area and begin to talk to the man as if they were friends
8. Security asked this man why was he here and he replied that he was in one of the wards
9. Security then cheeked the man's wrist and he had no wrist band on
10. Security asked again why was he here and then he said visiting
11. Security told him that visiting time had finished some time ago like 2 and½ hours
12. So security got the three white blankets he had on and the gowned he had on off him and told both to move on
13. Security did not believe there story's and had control put cctv on the men as they were walking of
14. Security was informed by control once they had walk into the privet hospital one kept look out and the other began to break into cars
15. Security called for backup and control called the police
16. Once security had back up security then responded to apprehend the thieves
17. Control incomed security were the two were
18. At this stage one had gain access to a car and was hiding inside it and the other was keeping look out
19. Security apprehended the one who was keeping look out no force was needed as he complied with security
20. Control informed security that the one who was in the car had now got out and was walking across the car park
21. Security followed and informed the man to stop
22. The man did not lesion to security until he seen that security had apprehended his partner in crime
23. This is where he turned around and began to make threats to security
24. (let my friend go or I will kill you )
25. Security informed the to stop and get down
26. The man threatened security again and this time by waving his arms around and stating that he will kill us (this is now going from verbal to physical )
27. Security informed the man to stop and get down
28. The man still approached security
29. Security told the man again stop and get down
30. The man began to shape up by moving his arms up near his groin area ready for a king hit or stab security (as the man had just broken into a car security was not shore if he had a knife or a screwdriver)
31. Security then did self-defence tactics
# stepping into his space
# using a leg strike kick the middle of his outer thigh
# then to the inner middle thigh
# and once more to the outer thigh32. This broke the man's balance and made him use his arms and hands to brake his fall
33. Once on the ground the man tried to get up
34. Security with an open palm gave the man a fast push to the back of the man's back
35. The man then said ok ill stop and laid on the ground and followed direction
36. Security stopped self-defence tactics at this point as the threat was over
37. Security then looked around and checked the surrounding area for more threat as he might of had more friends waiting for him
38. Once security felt that it was clear and safe security moved the two to the kurb were the could sit upright and wait for police
39. Security asked the man who had broken into the car why did you break into the car for
40. The man admitted that that he was here to look for money and just steal stuff he also said that he was going to try steal the car but security came to quick .but his friend he did not know and he had nothing to do with it
41. Once police arrived Dave Holland who was in control gave a statement that he witnessed the man breaking and entering the car via cctv
42. The police were happy with the statement and informed security that the man was known by police for criminal activity around Darwin
43. Security informed the police that he made threats and did try to assault security
44. Police asked did security get hit or assaulted
45. Security replied no
46. Police asked security did we have evidence on the second man stealing
47. Security said no just being there and they are saying they do not know each other
48. Police let the second man go as there was no evidence on him
49. Police then gave security details on who owned the car
50. Security passed this on to the supervisor who tracked down the owner a member of ROH and got him to inspected his car to see if things were missing
51. Security logged a risk man
52. Security was later informed that two more persons were sitting in a car in the dark at the privet hospital car park at 2240 clamming to be visiting (visiting hours finished at 2000)
Regards
Conrad Bruppacher”
An investigation was carried out by CJ Consulting – HR Solutions Pty Ltd, and a Final Investigation Report provided on 18 November 2019, which concluded:
“Findings
1) Mr. Bruppacher used excessive force in his interactions with Male 1 on the 16 July 2019.
2) Mr. Bruppacher failed to provide sufficient detail of the incident in the RISKMAN however it is not possible to determine whether this was a deliberate act of omission.
3) Mr. Burppacher’s actions are contrary to those expected and described in the RDH Security Officer Procedures and Instructions.”
The Applicant’s representative, Piper Ellis Lawyers, wrote to Top End Health Service on 2 December 2019 with Submissions on the disciplinary matter. The letter stated:
“Kalotina Halkitis
Top End Health Service
[redacted]
Dear Madam
CONRAD BRUPPACHER - SUBMISSIONS ON DISCIPLINARY MATTER
We act for Mr Conrad Bruppacher.
We refer to the Final Investigation Report, dated 18 November 2019 (the Report), concerning an investigation into our client over an incident in which he was involved in the course of his employment on 16 July 2019.
A response was sought from him on or before close of business 26 November 2019, extended to COB 2 December 2019. We have been instructed to assist him in the preparation and forwarding of this response. Thank you for the additional time.
Our client asks you to take into account the following matters in considering the Report and recommendations therein:
1. The subjective nature of the threat posed to the personal safety of the security officer
Whilst there is CCTV footage of the incident, without an audio recording of the dialogue between the two men, the level of threat to the personal safety of the security officers concerned cannot be judged at a distance. Mr Bruppacher has said at all times the larger offending person was verbalizing an intention to hit him (‘I’m going to kill you’, and similar).
In addition, our client contends the subtle cues that the larger offender was preparing to assault him cannot be seen from a distance. By this he is referring to the offender’s eyes, hands, feet and balance – all of which cues helped inform our client of the threat level, and very little of which can be seen from afar.
2. The evidence of Mr Khazeleh
According to the Report, Mr Khazeleh, the other security officer present, could not be contacted, so was never formally interviewed about the event. Instead, the investigator has chosen to rely on certain statements of Mr Khazeleh made to Ms Gray in an informal interview with Mr Allen and Mr Charles present. The investigator cites only these references as persuasive evidence:
a. Male 1 was not making any physical threats; and
b. Whilst male 1 was a threat, he did not agree with Mr Bruppacher hitting him and
“I wouldn’t kick him”With the greatest respect, these statements are somewhat contradictory and also do not represent the full evidence of Mr Khazeleh. The use of them seemingly represents a decision being made to rely upon the two alleged statements of Mr Khazeleh that did not support Mr Bruppacher’s version of events, rather than the several statements that did.
In relation to statement (a), assuming Ms Gray has correctly recorded what Mr Khazeleh stated, it is ambiguous as to what Mr Khazeleh meant by saying he was making a threat but not any physical threats, given that other contemporaneous notes from Ms Gray’s interview with Mr Khazeleh include:
“the guy was kinda scary, I felt threatened”
“I was assuming if I went near him, he would punch”
“I was scared, preparing for self-defence”
Taken as a whole, it can be seen that the statements of Mr Khazeleh do not contradict, but rather support Mr Bruppacher’s portrayal of a man who is threatening physical violence.
Similarly, the investigator relied on statement (b) that Mr Khazeleh did not agree with hitting him: “I wouldn’t kick him” as persuasive, yet, in another note, Mr Khazeleh allegedly states:
“smaller guy, no threat, nice apologizing. But the other guy I don’t like …. You can’t guess what he would do if he (Mr Bruppacher) didn’t kick him”
Again, this statement, when taken with the balance of Mr Khazeleh’s evidence, supports Mr Bruppacher’s claim that the taller male represented a physical threat to both security officers.
If the alleged statements of Mr Khazeleh’s are to be relied upon, then then all four statements which support our client’s view of the event must be given weight in the investigation, not just the two statements which do not.
The investigator also found the following evidence of Mr Allen to be persuasive:
“He believed Mr Bruppacher’s approach was excessive and only justifiable had he been under immediate threat of attack or assault which he did not believe to be the case as Mr Khazeleh made no physical reaction to assist or defend despite being closer to male 1 than Mr Bruppacher”
This summary of the incident also ignores Mr Khazeleh’s evidence that he felt “scared”, “threatened” and was preparing for self-defence. In our contention, as to the perceived threat of assault, greater weight should be placed on the statements of those who were present than persons interpreting events from afar based on the quite dark CCTV footage.
In summary, the fact that Mr Khazeleh was not formally interviewed is clearly a significant omission from the Report. We contend this omission is exacerbated by the investigator choosing to give greater weight to the two adverse statements of Mr Khazeleh, rather than the more numerous corroborating statements.
3. Evidence of Training
Our client has at all times stated that his actions were consistent with his training, including training received from Royal Darwin Hospital in relation to dealing with incidents in which there is a threat to physical integrity.
In addition to his considerable qualifications and experience in security, our client undertook two courses of training with the hospital. One on induction, and one towards the end of 2018. These ‘P3’ courses were arranged by the hospital and were given by a person we understand to be a government employee, named Straff Muir. It is our client’s contention that in the second of these courses he was trained to use the leg kick to unbalance a potential assailant, in the manner that is depicted in the CCTV footage.
It appears Mr Muir was not interviewed in the course of this investigation. If no enquires were made with Mr Muir or into the contents of P3 training given to Mr Bruppacher, in particular, whether his actions were consistent with training received, this also would appear to be a significant omission from the Report.
4. Possibility of excessive use of force and Desire for ongoing training
Once he had the assailant on the ground, the CCTV footage shows Mr Bruppacher using a forceful action of his right arm and hand to keep him in a submissive position. He denies, however, using a clenched fist.
Without admitting that this was excessive force – and he asks any observer to note it was designed to keep the larger offender, who had moments earlier threatened his physical integrity, submissive - Mr Bruppacher acknowledges that this action is open to an interpretation that it was excessive.
As a career security officer, Mr Bruppacher has been involved in, and observed, many instances of physical interaction involving security guards. These include some that he has witnessed at the hospital. There is always a case to be made that more or less force could or should have been used in these events.
Mr Bruppacher acknowledges that ongoing training is appropriate for he and all security guards for them to be safe and effective in their employment. He instructs that he is constantly seeking to improve his skills and techniques in this regard.
It is respectfully submitted that each of the above matters ought be given consideration by the delegate before a decision is made as to a) whether there has been a breach of discipline on the part of Mr Bruppacher on this occasion ; and b) if a breach is found, what the consequences of such breach should be. If there is a finding of a breach, it is respectfully submitted that further
training is indicated.We ask the delegate to take into account the Briginshaw standard of satisfaction that ought generally be applied to decision making of this kind. That is, where findings of fact in a civil matter may have significant consequences for a person in their employment, extra care should be taken that the evidence is particularly cogent before making any adverse findings.
Thank you for giving us this opportunity to make submissions on Mr Bruppacher’s behalf.
Yours faithfully
Bill Piper
Partner
Piper Ellis Lawyers”
On 23 April 2020, the Chief Operating Officer (COO) provided the following letter to the Applicant:
“Dear Mr Bruppacher
RE: BREACHES OF DISCIPLINE
I am writing to you with regards to the alleged breaches of discipline pursuant to the Public Sector Employment and Management Act (the Act) first outlined to you on 29 July 2019 by Ms Allison Grierson, Executive Director Royal Darwin and Palmerston Hospitals.
Given the serious nature of these breaches, Ms Grierson has referred this matter to me to review and determine whether breaches have occurred, and if so, what penalty should be applied.
I have now had the opportunity to consider your initial submission provided on 21 August 2019, Ms Chris Hancock’s report provided on 16 November 2019, video footage of the incident and a number of additional submissions you have provided through your solicitors regarding your actions on the evening of 16 July 2019.
I note that you have consistently maintained that you acted appropriately as you deemed the person to represent a threat to your and/or others safety. In doing so, you have relied upon your alleged use of a technique that you originally claimed was taught by Mr Straff Muir but later advised was in fact taught by Eagle Training Services. Your various responses have also repeatedly failed to address your actions beyond your initial decision to engage with the person.
I accept that it is possible the person was making verbal threats prior to your altercation, however I would also make the following observations based on my viewing of the footage and review of the material provided:
· the person initially walks towards yourself and Mr Khazaleh, however he clearly stops walking towards you prior to your interaction;
· the person raises his hands once prior to you reaching him. His fists are not clenched and it is clear in the footage he has nothing in his hands at that time;
· he is then stationary and with his hands by his side, so there does not appear to be any compelling reason for physical contact to be initiated;
· he makes no effort to resist once the interaction commences. His only physical actions appear designed to minimise any harm to himself. He certainly is not presenting any form of threat to anyone’s safety at that point;
· following your initial kick, which you claim was for the purpose of deterring any threat, you proceeded to kick him on a further two occasions and also struck him on the back of the head with either an open hand or closed fist as he was on the ground.
Based on my review of the material, I must question the judgement of your initial decision to physically engage with this person and I cannot accept that, having viewed the video footage yourself, you could reasonably expect to be able to claim that this person represented a threat to either yourself or Mr Khazaleh at any point after you initiated contact with him. This means that even if I accepted your contention that physical contact was initially reasonable, which I don’t, you kicked him twice and struck him once without any reasonable need to do so after the initial contact.
Nothing you have provided in your evidence to Ms Hancock, or in the various submissions provided since then offers anything that would even approach a reasonable explanation for your actions.
I also note that your original Riskman report prepared regarding this incident fails to make any mention of the fact that you kicked this person on three occasions, nor that you struck him. This appears to potentially be a deliberate oversight designed to minimise any recording of the level of force used in the incident.
On this basis, I have no option but to determine that you have committed the following breaches of discipline:
1) by kicking the unknown person on, or above the knee on three occasions, and then striking his head you have failed to uphold the performance and conduct principle and or otherwise contravened the Act in breach of Section 49(a) of the Act. Specifically:
a) you failed to treat a member of the public fairly, equitably and with proper courtesy and consideration in breach of Section 5F(1)(b) of the performance and conduct principle;
b) you failed to exercise your best possible technical and/or professional judgement in breach of Section 9.1(a) of the Code of conduct.
2) by kicking the unknown person on, or above the knee on three occasions, and then striking his head your conduct was contrary to the Royal Darwin Hospital’s Procedures and Instructions for Security Officers on the use of force which means that in the course of your employment you have disregarded a lawful order (namely the instructions) in breach of Section 49(c) of the Act;
3) by neglecting to record in the Riskman report the fact that you had kicked the person on three occasions and struck him on the head you knowingly omitted relevant information from the official reporting of this incident and have been negligent or careless in the course of your employment in breach of Section 49(e) of the Act;
4) by kicking the unknown person on, or above the knee on three occasions, and then striking his head I consider that you have conducted yourself in an improper manner in the course of your employment in breach of Section 49(f) of the Act.
Having determined that you have committed a number of breaches of discipline, it is my duty to determine the most appropriate penalty that can be applied in such circumstances in accordance with Section 49(c)(1) of the Act. The options available to me are:
(a) take no further action; or
(b) do one or more of the following:(i) formally caution the employee;
(ii) order the employee to undertake training, counselling or other remedial activities the Chief Executive Officer considers appropriate in the circumstances;
(iii) require the employee to forego a benefit or entitlement arising from the employee's employment (other than a benefit or entitlement arising under an Act or award) for a period not exceeding one month;
(iv) order the employee to pay a fine of an amount not exceeding the employee's remuneration for 10 days;
(v) reduce the employee's salary within the range applicable for the employee's designation;
(vi) under section 35:(A) transfer the employee to perform other duties in the Agency; or
(B) transfer, or request the Commissioner to transfer, the employee to perform duties in another Agency;
(vii) if the employee was suspended without remuneration under section 49E – order all or part of that period of suspension to be taken to be suspension imposed under this section;
(viii) suspend the employee without remuneration for a period the Chief Executive Officer considers appropriate; or
(c) terminate the employee's employment.
I consider the breaches you have committed to be extremely serious in nature and I am very disappointed that nine months after the original incident occurred you still appear to display no contrition for your conduct, nor do you appear to have any understanding of how inappropriate your actions were.
I have given due consideration to whether directing you to undertake counselling and/or training may be an appropriate measure to address your conduct, however I consider that this would not be appopriate (sic) in this instance given that I am of the view that your conduct was so manifestly excessive that I have no trust or confidence that any form of counselling or training could address this.
Given the violent nature of your conduct, I consider any return to your nominal role to be too great a risk for the organisation and thus I have considered whether or not it may be appropriate to transfer you to another role within TEHS. Given your complete lack of any admission that you may have acted inappropriately in this incident I consider that this demonstrates a significant issue with regards to your judgement and I am therefore not satisified (sic) that I could transfer you to another role with any confidence in your ability to act appropriately.
I consider that your conduct was so excessive that I must consider termination of your employment as an option. I feel srongly (sic) that I have no confidence you can return to work within TEHS and behave appropriately.
Accordingly, I foreshadow that it is my intention to terminate your employment pursuant to Section 49(c)(1)(c) of the Act.
Before I confirm this penalty, I now provide you with 14 days to make any submissions as to whether you consider the propsoed (sic) penalty to be reasonable or not.
I would like to remind you that matters of this nature are confidential and should be treated as such. The Department has a range of organisations that provide confidential and professional counselling services as part of our employee assistance program. Should you wish to avail yourself of the services, you may choose a provider from the list below:
Darwin Consultant Psychologists (DCP) 1800 289 129/08-8941 5369
Employee Assistance Service Australia (EASA)1800 193 123/08-8941 1752
Wisemind Psychology 1800 166 180/08-8981 5605
Industry Health Solutions 1800 432 303/08-8981 2642
Darwin Psychology Service Pty Ltd 1800 769 205/08-8932 8460If you wish to discuss this matter further, please contact Mr Shane Charles, Principal Case Manager, on [redacted].
Yours sincerely
Michelle McKay
Chief Operating Officer
Top End Health Service
23 April 2020”
Via Piper Ellis Lawyers, the Applicant provided his response on 18 May 2020:
“Dear Michelle
CONRAD BRUPPACHER
1. I refer to your letter, dated 23 April 2020, foreshadowing termination of Mr Bruppacher, and providing an opportunity for our client to make any submissions as to the reasonableness of the proposed penalty.
2. A response to this letter was sought on or before 7 May 2020, extended to 21 May 2020. We have been instructed to assist him in the preparation of this response. Thank you for the additional time.
Training
3. To be clear, our client maintains that Staff Muir taught the leg strike technique utilised. However, it was also taught by Eagle Training Services, another training regime that our client undertook with RDH. Our client also notes that he was taught the same self-defence manoeuvre through security training in the United Kingdom and through his army training.
4. As described in the Advanced Aggressive Behaviour Control Manual by Eagle Training Services, the leg strike is a manoeuvre under the fluid shockwave principle which entails delivering a strike to the thigh region, a nerve motor point, in an attempt to cause motor dysfunction and a stun. We note Mr Bruppacher strikes were to the thigh and not to the knee region as suggested in your letter.
5. As previously stated, our client’s position is that the leg strike is a well-known and easily verified self-defence method that can be used to safely immobilise a person who is exhibiting aggressive behaviour.
6. Please find enclosed:
a) a letter prepared by RDH security supervisor, Murat Kurban, dated 19 May 2020;
b) An email statement prepared by veteran police officer, Craig Kearney, dated 20 May 2020; and
c) a letter prepared by RDH security officer, Keiran Davison, dated 20 May 2020,which verify that the leg strike was a manoeuvre taught to RDH security officers and is utilised in other methods of self-defence training, such as P3 training.
Incident
7. We have previously provided the events of the incident as our client perceived them.
We clarify his position as follows:a) Mr Bruppacher was patrolling the RDH grounds.
b) Mr Bruppacher noticed a male, that he recognised from a previous incident at RDH where police had to be called, pretending to sleep outside the birthing suite entrance and RAPU stairway.
c) Mr Bruppacher asked the male to vacate the area and the male commenced walking away. At this point, the other male appeared from behind café and followed. Mr Bruppacher instructed them to both vacate.
d) The two males walked off, but Mr Bruppacher found their behaviour to be suspicious and requested that the control room maintain video surveillance.
e) The two males were verified by control to be undertaking criminal activity by breaking into a parked vehicle within the private carpark – one entering the vehicle and the other keeping watch.’
f) Control was unable to determine how the entered the vehicle as their view was blocked. It was unknown at the time whether they had used an instrument in order to break into the vehicle.
g) Control made known to Mr Bruppacher that the two assailants had been spotted breaking into a vehicle.
h) As the two males were confirmed to be undertaking criminal activity, Mr Bruppacher radioed the control room to call the police and asked that all security officers attend to the location. Mr Khazaleh is the only officer who attended.
i) Mr Bruppacher and Mr Khazaleh approached the assailants.
j) The assailants noticed the security officers and attempted to vacate the area.
k) Mr Bruppacher apprehended the male acting as lookout without incident.
l) The officers continued towards the second male who attempted to walk away.
m) Upon realising his friend had been detained, the second male turned around and began walking towards the officers.
n) Mr Bruppacher maintains, and Mr Khazaleh comments verified, that the larger male was making verbal threats of assault at this time.
o) Mr Bruppacher maintains that he was uncertain whether the larger male had an instrument or weapon when they approached. It was quite possible given they were known to be breaking into cars a short time prior.
p) Mr Bruppacher continued to approach the assailant and told him to get on the ground.
q) Mr Bruppacher maintains that the larger male continued making verbal threats of a violent nature (‘I’m going to kill you’ and similar) and carried himself in a way that suggested and attack on his person was imminent. He has always said that these cues can only be observed up close, as with the verbal threats, these are things that cannot be appreciated from a distance.
r) Given the verbally aggressive behaviour, Mr Bruppacher felt that the safety of himself and Mr Khazaleh was threatened and made the split second decision to utilise a self-defence move that had been taught to him both by Eagle Training services and Straff Muir through RDH.
s) Mr Bruppacher executed the manoeuvre 3 times as the first two strikes were ineffective at immobilising the offender.
t) Once the assailant was on the ground, Mr Bruppacher used an open hand shove to keep him in a subdued position. This was in the context a desire to keep subdued an aggressive criminal offender who had threated physical harm to our client. The subject was not an innocent bystander.
u) The officers then awaited the arrival of police.8. Our client displayed no contrition as it is his strong belief that he acted as the situation
necessitated and in accordance with the training he has received.9. The decision to physically engage was a choice that could only be made based on observations of those at the scene. They were the only officers who were present and who could hear and comprehend the nuances of the behaviour of the approaching assailant. It is clear from the evidence of the two officers present that they both believed
the male was posing a threat to their safety. Mr Bruppacher made the decision to utilise
a self-defence technique that he had been taught, including through courses provided by
the employer, in that context - to subdue the aggressor before the matter got out of hand.10. While, ideally, it would have only necessitated one strike to immobilise the aggressor, in this circumstance, Mr Bruppacher was unable to subdue the male with the first two strikes. Once the subject was subdued, Mr Bruppacher ceased all contact. It is our understanding that the male was arrested and did not suffer any injuries from the
incident, serious or otherwise.11. It is also worth noting that the other male acting as lookout was apprehend without
incident because he was not displaying aggressive behaviour and did not pose a physical
threat to the officers.Riskman
12. Mr Bruppacher strongly denies that he completed the Riskman in a manner such that
his knowingly omitted relevant information. Mr Bruppacher maintains that he completed the Riskman as he had been taught, which is to be as succinct as possible. Mr Bruppacher admits that he has received little to no training on Riskman reporting and would benefit from further training in this area.Penalty
13. It is contended that the proposed penalty of termination would be harsh, unjust and unreasonable.
14. Mr Bruppacher was dealing with an aggressive individual who had been undertaking
criminal activity and was threatening physical violence. Mr Bruppacher acted in accordance with the self-defence training provided through RDH to immobilise the assailant. Mr Bruppacher did the best he could in the situation with the training that he
had received.15. On any reasonable view, if Mr Bruppacher is to be penalised, the most appropriate
penalty to be applied in this circumstance is a formal caution and/or an order that Mr Bruppacher undertake further training.16. Mr Bruppacher relies upon his employment to cover his financial commitments including mortgage. Loss of his job could see him lose his house. He is unlikely to find alternate work in the current environment. He also cares for his 86 year old mother who is part financially dependent on him.
17. While it is well understood that Mr Bruppacher’s then immediate supervisor, now manager, has a poor relationship with him and may have at all times been urging a harsh
response, the penalty being contemplated must, in fairness to our client, be reviewed by persons not influenced by him if fair and reasonable outcome is to be achieved in this case.18. Given the serious consequences that will result from this determination for Mr Bruppacher, we remind you of the need to apply the Briginshaw standard of satisfaction in making your final decision.
19. In summary, Mr Bruppacher needs his job. The allegation is an overuse of force in
connection with an incident in circumstances where the subject was committing a crime, resisting direction, and behaving aggressively. The circumstances were also that the techniques used by our client were of the kind in which he was trained.20. If it remains the view of the employer that the action taken by our client was disproportionate, then our client agrees to further training and welcomes the support from the employer in this regard.
Yours faithfully,
Bill Piper
Partner
Piper Ellis Lawyers”
On 28 August 2020, the Respondent provided correspondence to the Applicant transferring his position to a Physical 3 position in the RDH Yard/Waste team:
“Dear Mr Bruppacher
RE: BREACHES OF DISCIPLINE – CONFIRMED PENALTY
I am writing to you with regards to the alleged breaches of discipline pursuant to the Public Sector Employment and Management Act (the Act) first outlined to you on 29 July 2019 by Ms Allison Grierson, Executive Director Royal Darwin and Palmerston Hospitals.
On 23 April 2020 I wrote to you and foreshadowed that it was my intention to terminate your employment and sought any further submissions from you as to whether you considered this penalty to be appropriate.
You responded on 18 May 2020 seeking a more lenient penalty, primarily on the basis that you had significant financial responsibilities and there existed the potential for you to lose your house should you lose gainful employment.
I have given significant thought to your submissions and have also considered the difficulty you may have in obtaining new employment in the current economic climate caused by the Covid situation and I have determined that terminating your employment in these circumstances may be considered too harsh an outcome.
In determining the most appropriate penalty to apply I have already flagged in previous correspondence that I did not consider your return to a role in Security Services would be an appropriate outcome given that my concerns regarding your lack of judgement in this matter are still prevalent.
I have therefore looked at what other roles within Top End Health Services may be appropriate given your transferable skills and have identified that a role within the RDH Yard/Waste team would be a suitable role for you to be transferred to. In coming to this decision I acknowledge this will result in a loss of income for you as these positions are in a lower classification stream than your previous position in Security however I believe that such a transfer will demonstrate the gravity of the offences I found you to have committed, whilst providing you with an opportunity at redemption and the ability to seek higher paying roles within what can still be a fruitful and meaningful career in the Public Sector.
Accordingly I now foreshadow that it is my intention to apply the following penalties:
1) Issue you with a formal caution for your conduct on 16 July 2019 pursuant to Section 49C1(b)(i) of the Public Sector Employment and Management Act (the Act).
2) Direct you to undertake counselling with one of our Employee Assistance Program providers aimed at ensuring that you develop the skills to be able to avoid any future physical interactions in the workplace pursuant to Section 49C(1)(b)(ii) of the Act.
3) Transfer you to a Physical 3 position in the RDH Yard/Waste team pursuant to Sections 49C(1)(b)(vi)(a) and 35 of the Act.You should also be aware that your salary will be at the Physical 3 Level from the date this transfer becomes effective.
Before these new penalties are confirmed I now invite you to make any final submissions on whether you consider the proposed penalties to be appropriate or not. Any such submissions should reach me by 14 September 2020.
I would like to remind you matters of this nature are confidential and should be treated as such. The Department has a range of organisations that provide confidential and professional counselling services as part of our employee assistance program. Should you wish to avail yourself of the services, you may choose a provider from the list below:
Darwin Consultant Psychologists (DCP) 1800 289 129/08-8941 5369
Employee Assistance Service Australia (EASA)1800 193 123/08-8941 1752
Wisemind Psychology 1800 166 180/08-8981 5605
Industry Health Solutions 1800 432 303/08-8981 2642
Darwin Psychology Service Pty Ltd 1800 769 205/08-8932 8460If you wish to discuss this matter further, please contact Mr Shane Charles, Principal Case Manager, on [redacted].
Yours sincerely
Michelle Mckay
Chief Operating Officer
Top End Health Service
28 August 2020”
The Respondent further wrote to the Applicant on 18 September 2020 as follows:
“Dear Mr Bruppacher
RE: BREACHES OF DISCIPLINE – CONFIRMED PENALTY
I am writing to you with regards to the alleged breaches of discipline pursuant to the Public Sector Employment and Management Act (the Act) first outlined to you on 29 July 2019 by Ms Allison Grierson, Executive Director Royal Darwin and Palmerston Hospitals.
On 27 August 2020 I wrote to you and foreshadowed that having considered your submissions regarding my intention to terminate your employment I was instead going to apply the following penalties:
1) Issue you with a formal caution for your conduct on 16 July 2019 pursuant to Section 49C1(b)(i) of the Public Sector Employment and Management Act (the Act).
2) Direct you to undertake counselling with one of our Employee Assistance Program providers aimed at ensuring that you develop the skills to be able to avoid any future physical interactions in the workplace pursuant to Section 49C(1)(b)(ii) of the Act.
3) Transfer you to a Physical 3 position in the RDH Yard/Waste team pursuant to Sections 49C(1)(b)(vi)(a) and 35 of the Act.
I asked for your further submissions on these proposed penalties and received these submissions on 14 September 2020.
I note your concerns regarding the harshness of the penalty, particularly in a financial sense, however would remind you that I had already considered your conduct worthy of possible termination of employment and had given significant thought to this prospect before determining that would in fact be too harsh given the current environment.
I have already made it clear I am not prepared to have you return to a role where I consider the risk of further misconduct to be significant and I consider the transfer to the position in the Yards to be an appropriate compromise that allows you to maintain a regular income and gives you an opportunity to repair your reputation in the workplace.
To this end I now confirm the penalties and advise that your transfer to the Physical 3 level will be effective from 5 October 2020.
I would encourage you to contact your new manager, Mr James Akunoori, on [redacted] to make arrangements for your commencement prior to this date.
I would like to remind you matters of this nature are confidential and should be treated as such. The Department has a range of organisations that provide confidential and professional counselling services as part of our employee assistance program. Should you wish to avail yourself of the services, you may choose a provider from the list below:
Darwin Consultant Psychologists (DCP) 1800 289 129/08-8941 5369
Employee Assistance Service Australia (EASA)1800 193 123/08-8941 1752
Wisemind Psychology 1800 166 180/08-8981 5605
Industry Health Solutions 1800 432 303/08-8981 2642
Darwin Psychology Service Pty Ltd 1800 769 205/08-8932 8460If you wish to discuss this matter further, please contact Mr Shane Charles, Principal Case Manager, on [redacted].
Yours sincerely
Michelle McKay
Chief Operating Officer
Top End Health Service
18 September 2020”
The Applicant lodged an appeal to the Public Sector Appeals Board – Northern Territory, in relation to the decision to take disciplinary action against him. This appeal was lodged pursuant to s.59A of the Public Sector Employment and Management Act 1993 (the PSEM Act). For completeness, s.59A of the PSEM Act provides:
“59A Appeals about inability, performance and disciplinary decisions
(1) Each of the following is an appealable decision:
(a)a decision by a Chief Executive Officer under section 44(2) to take remedial action of a kind mentioned in section 46(1)(b)(ii) or (iii) or (c);
(b)a decision by a Chief Executive Officer under section 49A(1) to take disciplinary action of a kind mentioned in section 49C(1)(b)(v) to (viii) or (c);
(c)a decision by a Chief Executive Officer under section 50 to terminate an employee's employment.
(2) A person about whom an appealable decision is made may appeal against the decision.
(3) Notice of an appeal under this section must be given to the Commissioner within 14 days after written notice of the decision is given to the person.
(4) The making of an appeal under this section does not affect the operation or implementation of the decision the subject of the appeal.”
The Public Sector Appeal Board considered the Applicant’s appeal and made a decision[1] to replace the initial decision to take disciplinary action with a decision to terminate the Applicant’s employment pursuant to s.49C(1)(c). For completeness, s.49C(1) of the PSEM Act provides:
“49C Disciplinary action
(1) If permitted under section 49A to take action against an employee, the Chief Executive Officer may:
(a) take no further action; or
(b) do one or more of the following:
(i) formally caution the employee;
(ii) order the employee to undertake training, counselling or other remedial activities the Chief Executive Officer considers appropriate in the circumstances;
(iii) require the employee to forego a benefit or entitlement arising from the employee's employment (other than a benefit or entitlement arising under an Act or award) for a period not exceeding one month;
(iv) order the employee to pay a fine of an amount not exceeding the employee's remuneration for 10 days;
(v) reduce the employee's salary within the range applicable for the employee's designation;
(vi) under section 35:
(A) transfer the employee to perform other duties in the Agency; or
(B) transfer, or request the Commissioner to transfer, the employee to perform duties in another Agency;
(vii) if the employee was suspended without remuneration under section 49E – order all or part of that period of suspension to be taken to be suspension imposed under this section;
(viii) suspend the employee without remuneration for a period the Chief Executive Officer considers appropriate; or
(c) terminate the employee's employment.”
On 17 August 2021, Ms Rachael Dunn, Director, Public Sector Appeals & Grievance Reviews of the Respondent wrote to the Applicant’s representative, Mr Matarazzo, advising:
“APPEAL AGAINST THE DECISION BY THE RESPONDENT TO TAKE DISCIPLINARY ACTION PURSUANT TOSECTION 49C(1)(b)(vi)(a) OF THE PUBLIC SECTOR EMPLOYMENT AND MANAGEMENT ACT 1993.
Please note the attached decision of the Public Sector Appeals Board (the Board).
When an Appellant seeks a review of the actions of their agency, it is open to the Board to substitute its own decision for that of the Respondent which has occurred in this case.
The decision of the Board
Pursuant to s59E(2)(e) of the Act, the Board sets aside the decision of the Respondent and replaces it with a decision to terminate the Appellant’s employment pursuant to section 49C(1)(c) of the Act.
The Respondent submitted that, although not entirely on point in that it was dealing with work health and safety provisions, the comments of Reeves J about the interaction of ss.26 and 27 of the FW Act in Ramsay v Sunbuild Pty Ltd (Ramsay)[58] are useful for the Commission in this matter. The Respondent submitted that in Ramsay, his Honour noted that s.26(2) of the FW Act had the effect of excluding state and territory industrial laws that had a general application. However, his Honour went on to explain that s.27 of the FW Act qualifies the effect of s.26(2). Section 27(2) of the FW Act sets out state and territory laws that are not excluded by the FW Act. The Respondent noted that the list includes anti-discrimination, workers compensation and work health and safety and so on.[59]
The Respondent submitted that similarly, a close reading of s.26 confirms that this section does not exclude the PSEM Act. The Respondent submitted that consideration of ss.26(1) and 26(2) may assist the Commission. Section 26(1) states that the FW Act is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer. In s.26(2) it sets out that a state or territory industrial law is one of general application and one that regulates workplace relations, generally. However, the Respondent submitted that the PSEM Act is outside the scope of s.26 in that it is not a Territory law of general application.
Further, the Respondent submitted that s.40 of the FW Act is consistent with s.26 of the FW Act, but with the distinction that it expressly states that a public sector law prevails over a Fair Work instrument to the extent of any inconsistency.
In conclusion, the Respondent acknowledged that a processing error led to the Applicant not receiving a payment in lieu of notice at the time of his termination on 17 August 2021. However, the Respondent noted that this mistake has been corrected.
Consideration
I have taken into account all of the submissions of the parties and given appropriate weight to the evidence and statement of each individual witness.
When considering whether a termination of an employee was harsh, unjust or unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines (Byrne) (1995) 185 CLR 410 is of significance:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
In analysing Byrne, a Full Bench of the Australian Industrial Relations Commission in Australian Meat Holdings Pty Ltd v McLauchlan (AMH) (1998) 84 IR 1 held:
“The above extract is authority for the proposition that a termination of employment may be:
· unjust, because the employee was not guilty of the misconduct on which the employer acted;
· unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or· harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct”,[60]
Further, a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd[61] said:
“[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination”.
I now turn to the criteria for considering harshness as provided in s.387 of the Act.
Section 387(a) – valid reason
The meaning of the phrase “valid reason” has been universally drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd:[62]
“In broad terms, the right is limited to cases where the employer is able to satisfy the Court of a valid reason or valid reasons for terminating the employment connected with the employee’s capacity or performance or based on the operational requirements of the employer. …
In its context in s 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 s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly…”
In Rode v Burwood Mitsubishi,[63] a Full Bench of the Australian Industrial Relations
Commission held:
“… the meaning of s.170CG(3)(a) 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.”
In Qantas Airways Ltd v Cornwall (Cornwall)[64] the Full Court of the Federal Court of Australia said:
“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”
The video of the incident shows what happened in the carpark, albeit from a distance. It is evident that the Applicant kicks Person 2, with a great deal of vigour 3 times in the thigh region. Allegedly, this is a defensive tactic taught by the Respondent to force an identified person onto the ground. The Applicant then pushes Person 2 abruptly onto the ground and stands behind him. The Applicant then appears to punch Person 2 in the back of the head quite forcefully. The Applicant denies this action occurred. The Applicant claims that he simply slapped Person 2 in the middle of the back to prevent him from getting to his feet.
In response to a question from me, the Applicant testified:
“You then appear to lift his head up, or his shoulder, or whatever, and then hit him, either closed fist, open hand, either at the back of the head - it looks like the back of the head to me based on the movement of his head after you've hit him. I'm wondering why you hit him?‑‑‑Okay, so it's probably just the angle of the camera, because what happened was because after the third leg strike, he was buckling, so I didn't see any point in keep trying to kick him in the leg, so I pulled him to the ground. When he got to the ground, I told him to stay down, and that's when he pushed himself up and then I've shoved him into the centre of his back and told him to get down and that's when he got down. So, he was trying to push himself up to get back up. I didn't lift him up. So, we can watch it again and you can see, if it - - -
I'm happy to watch it?‑‑‑But, yes, that's what's happened. So, basically, he started buckling and I didn't see any point in keep trying to kick him in the leg, so I've just grabbed him - - -
Well, I certainly see there you push him onto the ground?‑‑‑Yes, so what I've done is I've just pulled him down, so - because he's already on his way down, so there's no point keep - - -
You push him down?‑‑‑Yes. When he's landed on the ground, he's tried to push himself up and that's when I've told him 'Get down' and - - -
I haven't seen that. Ange, you might play the video for me again, please, around that 3 minute 20 mark.
DVD PLAYBACK [10.47 AM]
THE WITNESS: So you see he's pushed himself back up.
THE COMMISSIONER: He's pushed himself half up and you've straightened him up and then hit him?‑‑‑No.
Just go back?‑‑‑I've probably put my hand on him to stop him pushing up and then I've shoved him in the back. Rewind it a bit more.
A bit further back than that. Just go back a little bit further, please, Ange, only marginally. Fine, thanks.
DVD PLAYBACK [10.49 AM]
See you straightened him up?‑‑‑No, he's got - I've probably put my hand there to block him from getting up and then I've shoved him in the back and said, 'Get down.' He's got up himself.
Okay. Thank you?‑‑‑And then you can see at that point there, once he's had the shove in the back, he's gone, 'Oh' and I said, 'Get down, get down.' It might look excessive for someone who doesn't understand self-defence, but excessive would be me beating him until he's lying on the ground flat. So what I did was I did three leg strikes. The leg strikes were working, he was coming off balance, his leg was weakened. I pulled him to the ground, he's tried to get up and you can see I've put my arm there to go, 'Hey, get down.' He's probably pushed against my arm and then I've gone, 'Get on the ground' and shoved him in the back.”
I do not accept this evidence from the Applicant. I have carefully watched the video more than 50 times. The Applicant does not shove Person 2 in the back. The video shows all of Person 2’s back and neck. The Applicant hit Person 2 in the back of the head. Person 2’s head jolts forward as a result of this blow. Person 2 then lays down on the ground.
I am satisfied and find that this punch from the Applicant was not self-defence. Person 2 was already on the ground in half laying position. The Applicant then pulls Person 2 up by the shoulder to deliver the contact with Person 2’s head.
This type of physical interaction is inappropriate in the workplace. I am satisfied that the Applicant has breached the PSEM Act and the relevant Codes applying to the Applicant’s employment.
I am satisfied and find that the Respondent had a valid reason to terminate the Applicant and that this reason was sound and defensible.
Section 387(b) and (c) – Notified of the reason and opportunity to respond
Based on the evidence of Ms Dunn, the Appeal Board does not give prior notice of its decisions. While the Applicant had previously been provided letters by the COO to the effect that the Respondent was considering terminating his employment, with reasons provided, the PSAB’s decision, made on the papers, did not invite any opportunity for the Applicant to respond.
The Respondent relied on the evidence of Ms Holland that the Applicant’s former representatives had been advised that a possible outcome of the appeal could be more severe than the penalty originally imposed by the COO. Notwithstanding the fact that the Applicant was caught by surprise by the decision of the Appeal Board to terminate his employment, on this evidence, the Applicant was notified of the potential termination of his employment based on a consideration by the Appeal Board of all the facts, including the events of 16 July 2019.
Section 387(d) – Refusal to support person
As noted by the Respondent, no formal ‘discussions’ or meetings were held prior to the dismissal being effected by the Appeal Board. Accordingly, there was no opportunity for and no refusal of a support person for the Applicant.
Section 387(e) – Unsatisfactory performance
The Applicant’s dismissal was not based on unsatisfactory performance, rather misconduct during the incident of 16 July 2019.
Section 387(f) and (g) – Size of Enterprise and HR Staff – procedures followed
The Respondent is not a small business and employs dedicated human resource specialists.
Section 387(h) – Any other matters
I note that the Respondent appointed an independent investigator to investigate the incident. I further note that the other security guard who attended the incident, Mr Khazaleh, is no longer employed by the Respondent. However, in contemporaneous notes of an interview with Mr Khazaleh, I note that Mr Khazaleh said Person 2 made threats to the security guards but they were not physical threats. I also note that the investigation found that Person 2 was tall but of a slight physique, that there was no evidence of any implement carried by Person 2, that there was no resistance from Person 2 and that the Applicant did not utilise any de-escalation strategy when dealing with Person 2.
Conclusion
I have previously found that the Respondent had a valid reason to terminate the Applicant.
Adopting the obiter in King v Freshmore and utilising the standard of proof in Briginshaw v Briginshaw, I am satisfied that the Applicant aggressively kicked Person 2 on three occasions in the left thigh and then pushed him to the ground. I am satisfied that the Applicant then pulls Person 2 into a sitting position by the shoulder and punches him in the back of the head. There was no justification for the Applicant to use any force in this situation. The Applicant was not a member of the Northern Territory Police Force. He had no right to initiate physical contact with Person 2. The Applicant had no right to detain either Person 1 or Person 2 (Person 1 was the other individual in the carpark that was grabbed by the Applicant and walked towards Person 2).
The make up of the Appeal Board throughout the Appeal process is of no relevance to this proceeding. This matter has been determined in accordance with the provisions of the FW Act.
I do not accept the argument that the Applicant’s employment should be ongoing because he had been working as a gardener for 12 months prior to his termination. It must be remembered that it was the Applicant who brought the appeal against his demotion. Further, I do not accept the argument that the Applicant’s two prior representatives failed to pass on the advice that the PSAB could deliver a harsher penalty than that of a transfer or demotion. I know that, from my experience, one of the Applicant’s earlier representatives, Mr Matarazzo, is a very thorough advocate. I also find it difficult to believe that the Applicant’s prior legal representative would not have passed on this advice from the Respondent.
I am satisfied and find that the Applicant had numerous opportunities to respond to the allegations that his behaviour on 16 July was inappropriate, initially by correspondence with the COO and then in submissions before the PSAB. I accept the submission from the Respondent that this situation is an unusual scenario and that strict compliance with the FW Act in relation to s.387(b) and (c) was not possible. However, I note that even if the PSAB had provided this opportunity, the decision of the PSAB would have remained.
Violence can never be condoned in the workplace, whether between two employees, an employee and a customer or an employee and a member of the public. This principle is even more relevant when the employee is the instigator of the violence. I do not accept that the Applicant was intimidated by Person 2. I note that when he starts kicking him, he still has hold of Person 1. If he felt intimidated, he had ample opportunity to hand Person 1 to his colleague so that he could utilise his right hand to defend himself from any attack from Person 2. Further, there was no reason to pursue Person 2. The Police had been called by the control room. At that point, the actions of Person 2 became a matter for the Police.
I find that there are no mitigating factors that make the Applicant’s termination harsh, unjust or unreasonable.
I find that the Respondent had a valid reason to terminate the Applicant and that he was not unfairly dismissed.
The application is dismissed.
I so Order.
COMMISSIONER
[1] DA/2020/5, 17 August 2021.
[2] [1994] AIRC 991.
[3] PSEM Act, s.59C.
[4] PSEM Act, s.59F.
[5] [1994] AIRC 991.
[6] Ibid.
[7] (1980) 144 CLR 13.
[8] [2003] NTSC 120.
[9] [2011] NTSC 78.
[10] [2012] NTSC 56 at [19]-[24].
[11] [1989] FCA 612.
[12] [2018] FWCFB 6267.
[13] Exhibit D5 - Appeal board notification dated 12 January 2021; directions dated 2 December 2020.
[14] Exhibit 23 - Appeal board decision dated 19 April 2021.
[15] Exhibit 2 - Appeal board decision dated 17 August 2021.
[16] Exhibit D5 - Appeal board notification dated 12 January 2021; directions dated 2 December 2020.
[17] PSEM Act, s.3(1).
[18] Atkinson v Bardon & Ors [2018] NTSC 9,at [40], [41], [54] and [55].
[19] Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2, at [29], [30], [57] and [58].
[20] With reference to the Interpretation Act 1978 (NT), s.46A(3).
[21] Carter v Egg and Egg Pulp Marketing Board (Vic) [1942] HCA 30 cited in Work Health Authority v Outback BallooningPty Ltd [2019] HCA 2, at [29].
[22] Carter v Egg and Egg Pulp Marketing Board (Vic) [1942] HCA 30 cited in Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2, at [29].
[23] PSEM Act, s.59C(1).
[24] PSEM Act, s.59C(6)
[25] [2017] FWC 5661.
[26] [2018] FWCFB 6267.
[27] [2018] FWC 3686.
[28] [2016] FWC 925.
[29] “In previous decisions of the NTSC, it appears to have been accepted by the Court that the PSAB is, in effect, an administrative tribunal constituted under the PSEMA (e.g., NTA v Disciplinary Appeal Board of the Northern Territory & Anor [2003] NTSC 120 at [30] and Brackenreg v Northern Territory of Australia & Ors [2021] NTSC 17 at [38]-[39]”.
[30] See PSEM Act, s.59C of the PSEMA.
[31] Respondent’s Submission as to Merit of 8 March 2022, at [21]-[31].
[32] See also Alex v Costco Wholesale Australia[2014] FWC 1904 at [7].
[33] W.P. Keighery Pty Ltd v Federal Commissioner of Taxation [1957] HCA 2; PSEM Act, ss.14 and 59C.
[34] Atkinson v Bardon & Ors [2018] NTSC 9, at [40], [41], [54] and [55].
[35] Ibid.
[36] Exhibit D1: State of the Service Report 2020-21, page 8.
[37] Exhibit D1: State of the Service Report 2020-21, page 42.
[38] Exhibit D2: the Applicant's witness statement.
[39] Exhibit CB5 to the Applicant's Form F2: Conrad Bruppacher submissions by Piper Ellis Lawyers dated 2 December 2019.
[40] The 17 August 2021 decision, at [84].
[41] Exhibit D1: State of the Service Report 2020-21, page 42.
[42] Respondent’s Exhibit 1: Public Sector Appeal Board Decision – Bruppacher v the Department of Health at [84].
[43] Respondent’s Exhibit 2 Final Appeal Book - Bruppacher pp.15—22.
[44] (1938) 60 CLR 336.
[45] Respondent’s Exhibit 1 & Exhibit 2.
[46] Statutory declaration of Christina Holland at [4].
[47] Ibid at [5].
[48] Supplementary statutory declaration of Christina Holland declared on 24 February 2022.
[49] Atkinson v Bardon & Ors [2018] NTSC 9, at [40], [41], [54] and [55].
[50] Respondent’s Submission as to Merit of 8 March 2022, at [23].
[51] Exhibit D9 - Final pay advice.
[52] Exhibit D10 - Witness Statement of RDH Security Supervisor.
[53] Exhibit D11 - Applicant resume and Norforce attendance.
[54] Luke Maxitanis v Department of Justice and Community Safety [2020] FWCFB 4529, at 55(3) and 56-60.
[55] 28 CLR 129.
[56] [2012] NTSC 56.
[57] Fair work Act 2009, s.40.
[58] (2014) 241 IR 70.
[59] Ramsay at [34]-[39].
[60] (1998) 84 IR 1 at 10.
[61] [2000] AIRC 1019.
[62] (1995) 62 IR 371.
[63] PR4471.
[64] (1998) 84 FCR 483.
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