Mr Steffen Haun v G4S Health Services Australia Pty Ltd - [2013] FWC 1191

[2013] FWC 1191

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Steffen Haun
v
G4S Health Services Australia Pty Ltd
(U2012/6695)

COMMISSIONER LEWIN

MELBOURNE, 20 FEBRUARY 2013

Termination of employment - alleged unfair dismissal - alleged serious misconduct - summary dismissal - lawful direction - reasonable direction - dismissal not unfair.

Introduction

[1] On 30 March 2012 Mr Steffen Haun (the Applicant) made an application for relief pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to termination of his employment with G4S Health Services Australia Pty Ltd (G4S) (the Respondent). The Respondent provides non-emergency patient transportation for persons in need of transportation to hospitals and medical institutions under the Non-Emergency Patient Transport Act 2005 (Vic) (the NEPT Act) and the Regulations made under that Act (the NEPT Regulations) 1. The Applicant served a continuous period of employment as a Patient Transport Officer and Ambulance Transport Attendant (ATA) from 6 December 2004 until 16 March 2012.

[2] The matter was the subject of conciliation on 1 May 2012 and did not settle.

[3] A notice of listing and directions for arbitration were issued by Fair Work Australia (FWA) on 9 August 2012. On 3 September 2012 the Applicant filed an outline of submissions and witness statements for the Applicant, Mr Jeff Jarvis, Patient Transport Officer, Ms Heather Baker-Goldsmith, an expert witness in occupational health and safety, and Mr Richard Bearup, an Ambulance Officer employed by G4S. On 24 September 2012 the Respondent filed an outline of submissions and witness statements for Mr Russell Truman, General Manager for G4S, and Ms Helen Berry, Operations Manager for G4S.

[4] The matter was allocated to me on 31 October 2012 to be heard on 12, 13 and 14 November 2012. Mr Steve Gome, of United Voice, appeared on behalf of the Applicant. With permission, Mr Nicholas Harrington, of counsel, appeared on behalf of the Respondent.

[5] After the completion of the hearing on those days the representatives of the Applicant and the Respondent each filed further written submissions on the proper statutory construction of the words “must” and “should” within the meaning of the NEPT Regulations. Those submissions were filed on 16 November 2012 and will be referred to later.

[6] Subsequently, as a result of my consideration of the issues arising for determination I communicated with the parties concerning the protocols of Ambulance Victoria in relation to the allocation of patients for transportation by non emergency patient transport service providers. The matter was relisted for hearing on 21 December 2012 at the request of the respondent to address my communication. The Respondent sought that the matter raised not be dealt with before 21 January 2013. 2 I then received a letter addressing the issues raised at that hearing from Ambulance Victoria, which was admitted in to evidence3. Mr Gome was asked if he wished to cross examine the author. This opportunity was declined. Mr Gome made submissions about the content of that letter which were received on 6 February 2013. I have marked those submissions as exhibit A7

Background

[7] The Applicant was employed as a Patient Transport Officer by Medical Transport Services Aust. Pty Ltd (MTS) on 6 December 2004 on a casual basis whilst completing a Diploma of Paramedical Science (Ambulance) at Monash University. In May 2007 he was appointed to the role of ATA on a part-time basis. 4

[8] On 20 November 2008 G4S acquired MTS. The Applicant was employed by G4S as an ATA from that date and maintained continuity of service. He generally worked 36 hours per week on a 6 week roster. 5 At the time of the termination of his employment the Applicant worked at the Bayswater Branch of the Respondent.

[9] An ATA is classified as ‘operational staff’. The position description for operational staff requires employees to hold a qualification consistent with the NEPT Regulations made pursuant to the Non-Emergency Patient Transport Act 2003 (Vic) (the NEPT Act). Operational staff are required to perform “[p]rovision of patient care in accordance with Clinical Practice Protocols” 6 applicable by virtue of the incorporation of such Protocols in the NEPT Regulations made under the NEPT Act.

The termination

[10] The termination of the Applicant’s employment arose out of events which occurred in the early morning of 13 March 2012. The Applicant was rostered to work with Mr Jarvis, commencing at 6 am. The Applicant and Mr Jarvis received a dispatch report to attend the residence of a schizophrenic patient for transport to Maroondah Hospital, at commencement of their shift of work. The patient had personally and voluntarily sought the transportation to obtain medical care.

[11] The Applicant and Mr Jarvis contested the reasonableness of being required to attend the residence and transport the patient with the G4S Duty Officer Ms Berry. Ms Berry directed them to attend the residence and, at least, assess the situation. The Applicant and Mr Jarvis did not attend the residence as directed and another unit was dispatched and transported the patient.

[12] The Applicant was suspended on full pay from 13 March 2012 until the completion of an investigation by Mr Truman into the circumstances of his failure to attend the patient as directed by Ms Berry. Mr Truman sent a letter to the Applicant advising of the suspension and requesting an individual report of the incident from him. The Applicant did not submit an individual report. Rather, incident reports were submitted as follows. The Applicant and Mr Jarvis submitted an incident report under both their names on 13 March 2012, although it was dated 13 March 2011. 7 Mr Jarvis submitted an individual and separate incident report on 14 March 2012, although it was dated 14 March 2011.8

[13] A meeting was held between the Applicant, Mr Truman, Mr Tim Struthers, Acting Operations Manager for G4S, and Mr Phil Cavanagh, Assistant Secretary of United Voice Ambulance Section, on 16 March 2012. Later that day the Applicant’s employment was terminated by G4S for reason of serious misconduct. The Applicant was advised of the termination verbally and in writing. The employment of Mr Jarvis was also terminated.

[14] The case put on behalf of the Applicant submitted that the termination of his employment was harsh, unjust or unreasonable because the direction given by Ms Berry was unlawful and unreasonable in the circumstances. It was submitted that, on a proper construction of the Act, the Regulations and Clinical Protocols governing the transportation of non-emergency patients, the dispatch order was legally incompetent and unreasonable, or in the alternative, simply unreasonable.

The direction(s)

[15] At 6.02 am on 13 March 2012 the Applicant and Mr Jarvis received a dispatch order from NETCOMM 9 to attend a patient at a location between 5 and 10 minutes driving time from the G4S depot at which they had commenced their shift. The dispatch order appeared on a mobile data terminal in the transport vehicle the Applicant and Mr Jarvis were assigned for the day. The content of the dispatch order seen by them was as follows:

“** CLI> 348629 05:31:43 13/03/2012, A;SDLLGJ;ASLGJ;AKLGJ;

0397627826

Problem: SCHIZOPHRENIA

Number of patients: 1

Age: 42 years

Gender: Male

Responder script: You are responding to a patient who has abnormal or suicidal behaviour.The patient is a 42-year-old male, who is conscious and breathing.Non-suicidal and alert. 1.He is not violent. 2.He does not have a weapon. 3.His exact position is: IN LOUNGEROOM 4.This is not a suicide attempt.

Referral Service:Reserved by ext.1483

** LOI search completed at 13/03/12 05:32:45

As;dlfha;slgh;aslghz’s

STATES HASN’T BEEN WELL ALL WEEKEND AND NEEDS TO GO TO HOSPITAL

NFD

PT NAME [REDACTED] PHX: SCHIZOPHRENIA, PT HAS BEEN FEELING UNWELL, HE STATES HE HAS BEEN HAVING THOUGHTS ABOUT DEATH, PT HAS BEEN EMAILING FAMILY ABOUT COFFINS, PT STATES HE THOUGHT HE WOULD GET BETTER AND HAS NOT BEEN EATING ENOUGH FOOD, AND FEELS LIKE HE IS GOING TO BREAK DOWN, PT HAS NOT BEEN COMPLIANT WITH HIS MEDICATIONS AS HE DOES NOT HTINK HE NEES THEM AND THEY MAKE HIM TIRED, PT STATES HE FEELS LIKE HIS HEAD IS NOT RIGHT, TO MAROONDAH HOSP PLEASE.

Event type changed from 25A1 to REF04 at: 13/03/12 05:41:42

** >>>> by: BRETT LONDEGRAN on terminal: reftcit01

Clinician Button Hit

== REFERRED TO CLINICIAN ==

Clinician Button Hit

Event Type changed from REF04 to N–CLIN–3 at: 13/03/12 05:43:22

** >>>> by: STEVE GROVE on terminal: t071

** Event J12031370024 transferred from REFCOMM/EAST to NETCOMM/NET as

N12031360192 at 13/03/2012, 2\36 WOODMASON RD BORONIA VIC 3155,

0397627826

@0546 CALL RE ETA.....ADV AMB ORGANISED

PT WAS TOLD HE WOULD NEED TO WAIT 4 HRS FOR AMB ATTENDANCE

STATED HE CANNOT WAIT THAT LONG AND NEEDS ONE NOW

NIL CHANGES TO COND

** CLI> 173391 05:59:20 13/03/2012, 2\36 WOODMASON RD BORONIA VIC 3155, 397627826

@0601 CALL RE ETA, PT ADV NIL CHANGED BUT BREATHING HEAVILY, TRANSFERRED TO DM THO...

== REFERRED TO CLINICIAN == AT CREW REQ

GFS581 NETCOMM CREW

** Event N12031360192 transferred from NETCOMM/NET to CLIN/EAST AT Z12031385026 at 13/03/2012 06:04:52

CREW REFUSING TO ATTEND, CALLING GFS NOW CLIN-SG

SUPERVISOR WILL CALL ME BACK CLIN-SG

CALLING GFS AGAIN CLIN-SG

ON HOLD CLIN-SG

STILL ON HOLD

@0628 CALL RE ETA.......WEAK IN THE LEGS

ANGRY RE DELAY” 10

[16] A dispatch order of this kindis subject to a rigorous and well developed procedure. The order must be authorised by a Clinician which in this case was Mr S Groves, an employee of Ambulance Victoria. The order is subject to analysis by a software application incorporating an evaluative and explanatory algorithm for security and other purposes, which is the part of the dispatch order in lower case after “Responder Script”. If employees of G4S wish to do so they may refer a dispatch order to their Duty Officer.

[17] The Applicant and Mr Jarvis declined to proceed to the address contained in the dispatch order on the 13th of March 2012 and commenced a process of interaction with Mr Groves and Ms Berry based on their view that they should not be required to attend the patient due to the patient’s schizophrenic condition. Mr Haun dealt with those events at paragraphs 51 to 56 and 60 to 64 of his witness statement:

“51. On 13 March 2012 at 6 a.m., I reported for duty at Bayswater Branch. My partner for the shift was PTO Jeff Jarvis.

52. When I returned from the toilet. Jeff was seated in the car looking at the mobile display terminal (MDT). He noticed me and said words to the following effect, ‘Oh great, a psych job to start the day. You might want to have a look at this.’

Now produced and shown to me and marked “SH – 15” is a copy of pages 173 and 174 of a report of NETCOMM (Non-Emergency Transport Communications, the non-emergency transportation dispatch centre) jobs on 13 March 2012 showing the information displayed on the MDT at the time the job was dispatched.

53. I looked at the information displayed on the MDT and spoke out loud as I assessed the information in front of me. I used words to the following effect, ‘He’s at home…..he hasn’t been on his meds….this is a psych transport that hasn’t been seen by anyone.’

54. I then commented with words the following effect, ‘Great first job back from holidays.’

55. As Jeff passed the radio over to me a conversation with words to the following effect took place:

SH: I’m going to give the clinician a buzz. Are you happy to do this?

JJ: No way.

SH: ‘No weapon’, how do they know that?

56. I spoke with clinician Steve Groves on channel 106 – the channel reserved for contact with the clinician…

60. Jeff and I stood at the car taking in the conversation and discussing what had happened.

61. I broke the silence by saying words to the following effect, ‘I’m going to the duty officer.’

62. I referred to the dispatch notes again and then asked Jeff with words to the following effect, ‘Are you happy for me to take this further with the DO?’ to which he replied ‘Yes.’

63. Jeff and I both looked over the dispatch notes again to check that we hadn’t missed anything before heading inside to the communications room.

64. When Jeff and I entered the communications room, G4S night dispatch officer Thea Miller had just completed her shift. G4S day dispatch officer Sharon Moss was engaged in a telephone conversation. A conversation took place with words to the following effect:

TM: The clinician’s on the phone with Helen [Berry, operations manager, acting as night supervisor].

SH: This is ridiculous, asking us to go into a schizophrenic’s house when he’s off his meds, has been thinking about death and he hasn’t been seen by anyone. We’ve asked for police back up to go into his house and they’re telling us we won’t get police to attend. And that it’s a non-emergency job and we should just go and do it.

JJ: And they also say there’s no weapon at the location. How would they know that? Does he not have any knives in his kitchen? And who’s been out there to check?”

SM: What’s going on? Helen’s talking to Ambulance Victoria.” 11

An amended direction?

[18] Having identified the direction issued by NETCOMM to the Applicant and Mr Jarvis at 6.02 am on 13 March and the sequence of interactions between the Applicant and Mr Jarvis and Mr Groves, the AV Clinician, and Ms Berry, the G4S Duty Officer, it is necessary to consider if there was any amendment to the direction shown on the mobile data terminal for attendance at the Boronia address of the patient to be transported, consequent upon those interactions. This is because it is an important feature of the Respondent’s case that Ms Berry made changes to the direction originally dispatched in response to the interactions initiated by the Applicant and Mr Jarvis immediately following receipt of the dispatch order.

[19] While not categorically denying any variation in the form of communication of the direction the Applicant’s case is that, substantially, the direction was unaltered.

[20] The evidence which guides my consideration on this subject is that of Ms Berry, the Applicant and Mr Jarvis.

[21] Ms Berry dealt with this subject between paragraphs 9 and 14 of her witness statement:

“9. Immediately after speaking to the AV Clinician, I called the Bayswater branch communications room. The G4S Communications Room officer advised that the crew had not left the branch and were still in the garage at Bayswater. I asked to speak to Mr Haun and Mr Jarvis. I told Mr Haun that I had been advised that he was refusing to attend to pick up the patient due to safety concerns and that he had asked for Police backup to go to the house. I asked him to explain his version of the situation to me. Mr Haun read to me the details from the MDT and gave me his rationale for not wanting to transport the patient. After listening to Mr Haun’s concerns I said to him:

a) a number of staff had reviewed the job, including the AV clinician;

b) I had also been advised of the dispatch details and there was nothing to suggest the patient was dangerous or that the situation presented any particular risk;

c) the Police would not attend, even if requested, given the circumstances as there had been no violence and the patient was not threatening violence.

10. Mr Haun responded with words to the effect that the patient had not been eating or drinking or taking his medication and was having thoughts about death, emailing his family about coffins and saying that he was breaking down. I said to Mr Haun that those factors did not present a risk that would warrant not attending to assess the patient. However, Mr Haun would not accept that and continued to insist that he would not attend the patient without the Police attending.

11. I then said to Mr Haun he was to proceed to the patient’s home and to then assess the situation upon arrival. I asked him to then contact the AV Clinician, or potentially the Police, if, upon arrival, he and his partner deemed the situation as risky. Mr Haun responded and said he would not attend without Police being present. I was extremely surprised that he refused to comply with this modified attendance request (the Modified Attendance Request). I again explained to Mr Haun that in my opinion the Police would not attend in the given circumstances. I again asked him to clarify whether or not he would comply with my directive to attend without a Police presence.

12. Each time, Mr Haun stated that he would not comply with the directive to attend the patient without the Police being present. I explained to Mr Haun that his refusal to attend without the Police present amounted to a refusal to comply with a directive to attend the patient if the Police would not attend in the circumstances. I then asked to speak to his partner, Mr Jarvis.

13. I spoke to Mr Jarvis in similar terms as I had spoken to Mr Haun. I told him that there were no specific risks arising out of the circumstances and I directed him to attend to the patient. He stated that he would attend but only with Police assistance.

14. It appeared to me that Mr Haun and Mr Jarvis were both being careful to qualify their refusal to comply with the directive, by stating they would attend to the patient on the condition that the Police also attended. In any event, it appeared to me they would not comply with the Modified Attendance Request. On that basis after consulting with Mr Russell Truman, General Manager, I advised Mr Haun and Mr Jarvis they were stood down. I said I required both of them to provide a written incident report and to submit it to me by the end of the day.” 12

[22] The Applicant’s evidence includes an incident report made on the 13th of March and includes the following:

“I then spoke to Helen Berry after the clinician contacted G4S. I initially tried to explain our actions and was met with a similar response, ‘are you refusing the case’? Helen accused me of being stubborn! I’m unsure why she made this remark about me. It was offensive and suggested that I should back down from my education and go against what I and Jeff believed was the right course of action! Again I was told that we should go to the address and assess, then if the situation required police assistance we should call for back up.” 13

[23] Mr Jarvis also compiled an incident report which includes the following:

“Helen Berry rang Steff and it appeared she had already taken sides. She was not supportive of either of us and was more concerned with trying to get us to admit that we were refusing to do the job...

We were told that we should go to the address and assess, then if the situation required police assistance we should call for back up. How ludicrous. What happened to the organisation’s obligation to provide me with a safe workplace?” 14

[24] On what is before me I find that Ms Berry modified the original dispatch instructions and directed the Applicant and Mr Jarvis to proceed to the dispatched address of the patient, assess the situation and if necessary call for backup, possibly the police, depending upon the Applicant and Mr Jarvis’ judgement of the circumstances arising from their assessment of the patient and the situation on arrival.

[25] Whether because of differing interpretation of the language used by Ms Berry, insufficient attention, lack of clarification or closure of mind, I accept that the Applicant interpreted this modification to mean that the direction did not involve any change in the requirements upon him in relation to the dispatched transportation assignment originally notified on the mobile data terminal.

[26] However, in my view, looked at objectively, Ms Berry did alter the requirement such that the Applicant and Mr Jarvis were instructed to proceed to the patient’s address so they were able to assess whether backup was required. This amended direction no doubt contemplated the possibility that further discussion between the Applicant, G4S and the Ambulance Victoria system may occur and further consideration of the situation could be afforded in light of any relevant observation by the Applicant and Mr Jarvis on arrival. The amendment attached some discretion to the Applicant’s and Mr Jarvis’ judgement of the situation which pertained to their attendance and observation of the patient.

[27] Moreover, it was conceded by the Applicant’s representative that the Applicant knew that it would have been possible for the patient to be contacted by telephone and asked to wait at the door or come to the door of the residential address, in anticipation of, or at the arrival of, the patient transport vehicle and its attendants. This should have been a reasonably apparent risk mitigation measure in the relevant context. In this event it is reasonable to assume that the Applicant would have been able to make, at least, a visual appraisal of any risk presented by the patient.

[28] In particular, in my view, it was reasonably clear that the amended direction obviated any necessity to enter the patient’s residence, which formed part of the concerns of the Applicant and Mr Jarvis, who contemplated that the patient could be armed with knives stored in the kitchen of the residence. Any apprehension that an essential request of the direction was to enter the patient’s residence was dispelled. This direction would have enabled the Applicant to radio that the patient was presenting with unacceptably risky behavioural symptoms and to seek police attendance if any threat of violence was apparent.

[29] The Applicant made the following statement in his incident report:

“I passed the phone to Jeff and remarked to Tia and Sharon, who were in the communications room at the time, ‘how would we call for backup when we both have gunshot wounds’? I couldn’t believe that there was no support from management.” 15

[30] If the Applicant assessed being shot by the patient as a substantial risk in the relevant circumstances, in light of all of the information available to him and in the context of the amended direction, I consider this to have been unreasonable and lacking in genuineness. I consider this reason for failure to carry out the amended direction as unacceptable. It was a dramatic exaggeration of the probable circumstances of compliance with the amended direction. In my view, this statement evidenced an approach to the direction which was petulant and completely uncooperative.

Was the direction and/or the amended direction lawful?

[31] It has been submitted on behalf of the Applicant that the direction to transport the patient and/or any amended direction was unlawful in the relevant circumstances.

[32] It was submitted that the NEPT Regulations made pursuant to the NEPT Act should be construed such that, as the patient the subject of the relevant directions was diagnosed with a mental illness, the NEPT Regulations operated in a manner which made the dispatch order and the direction of Ms Berry unlawful.

[33] The operations of G4S are subject to the NEPT Act and the NEPT Regulations. Among other things the NEPT Regulations incorporate the ‘Non-emergency patient transport: Clinical practice protocols’ (the Protocols). The Applicant’s submission relies on the proposition that transporting the patient from the patient’s residence to a hospital is not permitted by the NEPT Regulations due to the incorporated terms of the Protocols.

[34] In my view, the submission misconceives the relevant effect of the NEPT Regulations and the Protocols for the following reasons.

[35] The NEPT Act, the NEPT Regulations and the Protocols only apply to non-emergency patients. It is conceded that the patient was not an emergency patient. Moreover, in my view, in the relevant circumstances, the NEPT Regulations including the incorporated Protocols, primarily govern the level of staffing and the mode of the transportation which must be provided to non-emergency patients according to particular circumstances, provided that the transportation is approved in the manner required by the Protocols.

[36] The dispatch which was received at 6.02 am by the Applicant and Mr Jarvis described the patient as low acuity. It will be observed that the information received by the Applicant and Mr Jarvis on the mobile data terminal revealed that the patient was schizophrenic and using medication, presumably for that condition. It is therefore appropriate to proceed on the highly probable assumption that the patient had been diagnosed by a medical practitioner as suffering from a mental illness for the purpose of the prescription of medication for that illness.

[37] Accordingly, the patient, because of the definition of a low acuity patient by regulation 6 of the NEPT Regulations could not be transported as a low acuity patient. The relevant definition is set out below and attention is drawn to paragraph (e).

“6 Definition

In this Division a low acuity patient is a patient who requires active monitoring and has one or more of the following conditions—

(a) impaired cognitive function requiring supervision;

(b) chronic diagnosed shortness of breath if there has been no recent change in that condition;

(d) an inability to walk more than a few steps unaided—

but does not include a patient—

(e) with a diagnosed mental disorder;

(f) referred to in paragraph (b), if being transported by an aeromedical service;

(g) whose condition is time critical or whose condition is likely to become time critical during transport.”

[38] However, the Applicant and Mr Jarvis would have been providing transportation staffed at the level required for the mode of transportation of a voluntary medium acuity patient with a diagnosed mental disorder, from the patient’s residence to a hospital.

[39] In my view, the Applicant and Mr Jarvis constituted the level of staffing required to transport the patient in accordance with the NEPT Regulations and the Protocols. This was conceded by the Applicant’s representative.

[40] On my understanding of the submission put on behalf of the Applicant, notwithstanding this, the Protocols operate in a manner which prohibited the transportation of the patient as a medium acuity patient for reasons which will be referred to in detail. 16

[41] Appendix 3 of the Protocols is titled “Non-Emergency patient transport of people with mental illness”. The Purpose and Scope of the Appendix includes the following:

“Purpose and Scope

To provide information about the law and policy requirements governing when non-emergency patient transport (NEPT) of people with mental illness is permitted.”

[42] The Protocols distinguish the voluntary and involuntary transportation of patients with a diagnosed mental illness. As noted, the patient in this case was volunteering for transportation to a hospital.

[43] Accordingly, it is only necessary to consider the application of the Protocols to voluntary transportation in the relevant circumstances. Rather than set out Appendix 3 in full it is attached to this decision (Appendix A) for convenience of reference. However, the relevant provisions upon which the Applicant substantially relies, taken somewhat out of the broader context, are as follows:

“Referrals to NEPT

An appropriate health professional must approve all referrals to a NEPT service. In the case of medium or high acuity patients, this should be a registered medical practitioner.

As stated, people with a diagnosed mental disorder must be transported as either medium or high-acuity patients and therefore, a registered medical practitioner should approve all referrals to a NEPT service.” 17 (endnotes omitted)

[44] It will be observed from a broad reading of the Protocols that there is no prohibition on the voluntary transportation of patients with a mental illness from a patient’s residence to a hospital. Rather, the Protocols apply certain conditions to such transportation.

[45] It will be further observed that a person diagnosed with a mental illness must be transported as a medium or high acuity patient. I have dealt with the staffing levels required accordingly above.

[46] Moreover, it will be seen, immediately above, that all referrals to NEPT (for the transportation of patients with a mental illness) must be approved by “an appropriate health professional” 18.

[47] In this case that appropriate health professional was Mr S Groves, a Clinician. That Mr Groves is “an appropriate health professional” for the purposes of the Protocols is not in dispute. However, Mr Groves is not a registered medical practitioner.

[48] The submission on behalf of the Applicant is that the transportation of the patient in the relevant circumstances would have been unlawful because the requisite approval of the NETCOMM dispatch order to him and Mr Jarvis was not executed by a registered medical practitioner.

[49] It will be observed that the two paragraphs under the heading ‘Referrals to NPT’ both make reference to registered medical practitioners.

[50] In order to determine whether, in the context in which these provisions of the Protocols appear, the transportation of the patient was permissible at the level of staffing appropriate to a medium acuity patient (which would have been the case had the Applicant and Mr Jarvis transported the patient) it is essential to construe the meaning of these provisions. To do so a meaning will have to be attributed to the words “must” and “should” respectively, most particularly the latter, in the context in which they appear.

[51] It seems to me that the issue is whether or not, in the relevant context, the applicable provisions of the Protocols make it a mandatory condition of the NEPT Regulations (through the incorporation of the Protocols by the NEPT Regulations) that a patient with a mental illness seeking voluntary transportation from their residence to a hospital may only be so transported by a non-emergency patient transport service provider if such transportation is approved by a registered medical practitioner (as well as staffed at the medium acuity standard). In short, does the word “should” have the same meaning as the word “must”, in the relevant context of the provisions of the Protocols shown above?

[52] The Applicant and the Respondent have each filed submissions on the subject of the use of the words “must” and “should” in the Protocols, of particular relevance are those of the Applicant in relation to the operation of the Interpretation of Legislation Act1984 (Vic) (the Interpretation Act).

[53] In essence, the submission of the Applicant is that the direction and/or the amended direction is made unlawful by the Protocols because of the terms of s.45(2) of the Interpretation Act as elaborated below:

“1. The Macquarie Dictionary defines the word ‘should’ as ‘the past tense of shall’.

2. The Oxford English Dictionary, under the entry for ‘should’, simply states ‘see SHALL’.

3. Section 45 (2) of the Interpretation Legislation Act 1984 (Vic) (“the Act”) states:

Where in this Act or any Act passed or subordinate instrument made on or after the commencement of this Act the word “shall” is used in conferring a power, that word shall be construed as meaning that the power so conferred must be exercised.

4. If the Act applies to the Clinical Practice Protocols (“the Protocols”), the word “should”, being an alternative form of the word “shall”, is to be construed as meaning the power so conferred must be exercised.” 19 (endnotes omitted)

[54] It is clear that this submission hinges on two propositions, one express and the other implied. The first proposition is that the words “shall” and “should” both mean “must” in the context of the Interpretation Act. This proposition is plainly expressed in paragraphs 1 to 4 of the Applicant’s submissions above.

[55] The second, implied, proposition is that it must be accepted that the relevant provisions of the Protocols are properly characterised as statutory rules constituting subordinate instruments to which s.45(2) of the Interpretation Act applies.

[56] In my view, resort to an unravelling of the grammatical relationship between the words “shall” and “should”, as relied upon in the Applicant’s submission immediately above, is not necessary. Nor, in my view, is it necessary to determine if the Protocols are properly characterised as “subordinate instruments” in order to deal with the question before me.

[57] This is because, in my view, the relevant provisions of the Protocols are not properly characterised as “conferring a power”. The word “should” is not relevantly used in Appendix 3 of the Protocols “in conferring a power”. Rather, on a proper construction of the Applicant’s own submissions the word “should” is used as a prohibition on transport of particular patients unless certain conditions are met, namely in their submission, approval by a registered medical practitioner. On the Applicant’s submissions, rather than a conferral of a power which may be exercised by a person, the protocols establish a condition precedent with statutory force for the transport of patients by non-emergency patient transport service providers.

[58] On the approach which I adopt, s.45(2) of the Interpretation Act has no relevant application because the Interpretation Act, as relied upon by the Applicant, deals with the meaning to be applied to the word “shall” only in circumstances whereby a power for a person or body to do something is conferred under the NEPT Act or a subordinate instrument thereto.

[59] Accordingly, the question remains whether the use of the words “must” and “should” import different meanings in the relevant context of Appendix 3 of the Protocols. I think so for the following reasons. First, the words have different meanings in ordinary language. The word “must” is unconditional and an absolute requirement. This is not disputed between the parties’ representatives.

[60] The entry for the word “must” in the Concise MacQuarie Dictionary is set out below:

“1. (indicating obligation or necessity): all residents must pay taxes; we must make a big effort; I must get my hair cut; we must do lunch sometime. 2. (indicating inevitability): we must all die. 3. (expressing a conclusion): the letter must be in that box; that must be him at the door; you must have been very proud. 4. (expressing an insistence on doing something objectionable): must you contradict me?; he must always have the last word. –n. 5. Colloq. Something viewed as necessary or vital: champagne is a must on this occasion.” 20

[61] The word “should” is of less certain meaning by denotation and, in my view, by connotation. In my view, the ordinary meaning of the word “should” is not of an absolute requirement, it is recommendatory or advisory rather than mandatory. The meaning is of that which is desirable, preferable or most appropriate to be done. The relevant entry for the word should is set out below:

“1. (indicating obligation): I should visit my parents; you should show more tolerance. 2. (indicating advisability): you should lock the car door when you get out; he should have checked before starting. 3. (referring to a likely event or situation): you should get there in three hours. 4. (referring to remote possibility): should he mention it, pretend you don’t know; the policy pays $10,000 if you should die within five years. 5. (in polite phrases): I should like to apply for the position advertised; it’ll take about two hours, I should think. 6. (used emphatically): I should say so!; I should hope so too!” 21

[62] Second, the author of the Protocols must be taken to have intended differential meanings to apply. The word “must” was clearly ready to hand. If the intention of the author and the document was to require that the relevant transportation in all cases must be approved by a registered medical practitioner it would have been a simple matter to clearly state such at the outset and to forgo the use of the word “should” at all. Moreover, the use of the words “appropriate health professional” as a potential source of authorisation would seem superfluous if the only authorisation possible was by a registered medical practitioner. In this respect it is informative that an “appropriate health professional” for the purposes of the Protocols is a defined terminology which includes health professionals other than registered medical practitioners. Pertinently, Mr Groves, a Clinician, is and was for the purposes of the authorisation of the dispatch order an appropriate health professional. 22

[63] Third, it seems to me that if the use of the two words create ambiguity or uncertainty the correct approach to resolving such ambiguity or uncertainty is to look at the purposes of the NEPT Regulations and the Protocols as a whole and the particular provisions in their immediate and wider context. Reference to other parts of the Appendix in aid of construction of the provisions under consideration may usefully be made.

[64] The words “must” and “should” in Appendix 3 of the Protocols are both used throughout the text of the provisions in ways which would seem potentially interchangeable and, arguably, in a manner which could give rise to uncertainty.

[65] In dealing with any ambiguity or uncertainty which might be said to arise from the use of the words “must” and “should” in the broader context of the Protocols as per Appendix 3, I would default to my second consideration above. I do so because if the overriding principle of construction of the meaning of the words in their relevant context is to give effect to the intention of the Protocols the use of differential terminology is to be ascribed a purpose, which is to distinguish between something which is required as a mandatory condition of the transport of a patient and something which is considered appropriate, advisable and desirable as a feature of the process by which a referral to NEPT is to occur. If I am correct in this, expressions of language throughout Appendix 3 which deploy the words “must” and “should”, it seems to me, compels the assumption that “must” is mandatory and “should” advisory. In my view, the interpretation and application of the words “must” and “should” throughout Appendix 3 is amenable, overall, to this approach. Indeed, on my reading of the whole of Appendix 3 such differentiation allows an harmonious reading of all of its terms. Whereas reading Appendix 3 such that both words have exactly the same meaning is at least puzzling if not confusing. Particularly as such a reading begs the question of why various forms of expression deploy different words in relation to similar circumstances if they are to have the same mandatory effect.

[66] I am fortified in this conclusion by the following provisions which appear under the heading “Introduction” in Appendix 3:

“Introduction...

People with a diagnosed mental disorder must be transported as either medium or high-acuity patients. The clinician authorising the referral to NEPT must decide the level of care that will be required during transport (see ‘Referrals to NEPT’ above).” 23

[emphasis added]

[67] It would seem tolerably acceptable that the Protocols contemplate the possible approval by a Clinician of medium acuity transport of patients diagnosed with a mental illness.

[68] In Exhibit AV1, a document provided by Ambulance Victoria, the following is stated:

“There can be circumstances where a Clinician could refer a medium acuity patient with a mental illness for transport by non-emergency patient transport from home to hospital without the approval of a registered medical practitioner.

For example, the transport of a patient from home to a medical appointment where the request comes from the CAT team, which in most cases, would either be a psychiatric nurse or a social worker, or a request for transport from home to a medical appointment by an individual, in which case the call taker will assess whether the person is suicidal or threatening and is alert.

If the person is not suicidal or threatening and is alert, then the call taker will transfer the patient to our Referral Service (REFCOM) who will determine whether emergency or non emergency patient transport is appropriate, or whether to refer the patient to an alternative means of transport other than ambulance transport (e.g. a private vehicle driven by a family member, carer or friend).

REFCOM is staffed by registered nurses and paramedics who utilise structured and medically approved triage guidelines to assess the patient’s needs in making their decision, with the Clinician providing further quality assurance in this process. If the person is suicidal or threatening then the call taker will dispatch an emergency ambulance.” 24

[69] It will be noted that the original dispatch order includes reference to REFCOM and this is the subject of evidence and submissions as having occurred on 30 March 2012.

[70] In the particular circumstances of this case the mandatory requirement for the approval of the transport of the patient by an appropriate health professional and the mandatory standard and mode of transportation required were both met. However, the advisory or recommendatory provision of the Protocols that the approval of the transportation of a person with a mental illness by a standard of medium acuity transportation should be approved by a registered medical practitioner was not. However, that transportation of the patient should be approved by registered medical practitioner was not a mandatory condition for the lawful transportation of the patient.

[71] My conclusion above therefore leads to a finding that in the particular circumstances of this case the NETCOMM direction and/or the amended direction were not prohibited by the NEPT Regulations.

Was the direction and/or amended direction reasonable?

[72] In my view, both the original dispatch direction received by the Applicant and Mr Jarvis and the direction in the amended form described by both in their incident reports were reasonable.

[73] However, in the circumstances it is only necessary to deal with the final form of the direction indicated by the Applicant and Mr Jarvis in their incident reports of 13 March and 14 March respectively. This is because, ultimately, it was that direction, or at least his understanding of it, which the Applicant failed to comply with.

[74] The submissions advanced on behalf of the Applicant for which I should conclude that the direction, however construed, was unreasonable are as follows:

“39. In addition, and in the alternative, the Applicant submits the direction he was given was not reasonable in that:

a) He was neither trained nor experienced in dealing with patients with mental disorders

b) He had genuine concerns for his own safety and that of his partner

c) Had the Respondent complied with the obligations of the Occupational Health and Safety Act 2004 (OHS Act) it should have:

i. in consultation with its employees, drafted a policy aimed at minimising the risk operational staff dispatched to private residences being exposed to occupational violence;
ii. suggested strategies/compromises to eliminate or reduce risk
iii. accepted the concerns of its operational staff as being real and genuine, instead of initiating punitive disciplinary measures in an apparent contravention of s. 76 of the OHS Act.” 25

[75] I was unable to discern any objective basis for the Applicant’s concern that a patient seeking urgent transportation to hospital, referred to as schizophrenic, posed an unacceptable risk in the context in which the direction was originally given. Had the information on the dispatch message delivered to the mobile data terminal in the vehicle indicated a threat the concerns would have an objective basis. However, it did not and, in my judgement, any signs of violent risk would have more probably than not been detected by the Clinician and or the algorithmic components of the dispatch process and dealt with in a very different manner. Moreover, the risk identified if at all was of self harm rather than a risk of harm to others by the patient.

[76] From the evidence of the Applicant and Mr Jarvis about their initial response on 13 March between 6.02 am and 6.04 am it would seem that the very first dispatch they received for the day was a job involving what Mr Jarvis referred to as a “psych job” 26, somewhat derisively. The Applicant said in his evidence “[a]t 6 o’clock in the morning people are thinking coffee and breakfast and all that sort of stuff…”27 At the time the Applicant and Mr Jarvis were yet to leave the depot.

[77] It is to be remembered that the Applicant and Mr Jarvis were well aware that what they saw on the mobile data terminal at close to 6 am had been considered by a Clinician as part of the standard evaluation and risk management procedures of Ambulance Victoria prior to the dispatch being allocated to them. Their challenge to the reasonableness of the direction and/or amended direction was a challenge to the Clinician’s evaluation of the appropriateness of the dispatch order and Ms Berry’s amendment of the direction to allow a cautious approach to the patient, notwithstanding that no plausible risk had been identified which would justify a failure to comply with the originating dispatch direction.

[78] The Applicant submits that in order for him to be reasonably expected to respond to the direction in any way he would have needed specialist training in how to deal with the kind of patient presenting on the mobile data terminal. This is an assumption that such a patient would more probably than not present particular difficulties which could only be addressed by a person with such operational training. By implication this once again suggests that there could reasonably be anticipated some extraordinary behaviour on the part of the patient which would likely pose an unacceptable risk to the Applicant’s safety. Clearly such considerations had been entered by the clinician and processed by the algorithm. I am unable to see a reasonable objective basis for the Applicant’s beliefs in the relevant circumstances. Rather, I think such risks as were projected by him were based upon some subjective imagining of risk on the Applicant’s behalf.

[79] It is noteworthy that a careful consideration of what happened on the 13th of March does not involve the Applicant stating that he could not comply with the direction in any form because to do so would breach the Protocols, the NEPT Regulations or the NEPT Act. Rather, that proposition arose after the failure to comply with the direction to attend the patient’s address. It is clear that the overwhelming weight of evidence favours a finding that at the time of the Applicant and Mr Jarvis’ failure to comply with the directions, however comprehended by them, their objection was based on concern over potential threats to their personal safety from the patient, as they perceived them.

[80] The extract of the Applicant’s incident report at paragraph [28] of this decision is informative in this respect.

[81] In my judgement, the portrayal of being at risk of being stabbed or shot and wounded by a firearm if any of the directions issued on 13 March were complied with was entirely unreasonable in the circumstances. What information there was to hand indicated the patient was not armed at all, let alone with a firearm. It is impossible to understand how it was surmised by the Applicant that a schizophrenic person was, objectively, more likely to be severely armed in this way than any other member of the public requesting transportation to a hospital.

[82] It is clear from the evidence that, if anything, the source of any likely agitation on the part of the patient was most obviously delay, caused by a failure to attend and provide transportation in a timely manner. The patient expressed an urgent desire to be taken to the Maroondah Hospital as a self protective and therapeutic source of help and assistance. How that would translate into a violent attack on a patient transport vehicle or its staff is difficult to fathom as a logical relation of cause and consequence. One would have thought that the patient was seeking help rather than making threats and felt in need of the service the Applicant and Mr Jarvis would have provided rather than threatened by it or them.

[83] In my judgement, the Applicant and Mr Jarvis were put out by receiving a direction to transport this particular patient because of the psychological condition identified in the dispatch details. In my view, they both resorted to hypothetical and highly improbable risks to their safety to rationalize their reluctance and, ultimately, their failure to leave the depot and comply with the dispatch order and the amended direction of Ms Berry.

[84] In my view, their estimates of the risks to their safety were purely subjective, exaggerated and in some respects fanciful. In such circumstances the conduct of the Applicant and Mr Jarvis constituted an unreasonable failure to comply with a lawful and reasonable direction, certainly, in the latter case, in its amended form.

[85] It would be artificial to say that Ms Berry did not attempt to provide some comfort and discretion to the Applicant and Mr Jarvis in the form of direction she gave after she became involved, which permitted assessment of the situation by the Applicant and Mr Jarvis at the scene. Caution was expressly authorised, discretion to seek assistance based on the Applicant and Mr Jarvis’ assessment was expressly provided for, police attendance was a possibility in the form of “backup”. The patient could have been asked to exit the residence unaided. Risks could have been evaluated visually before proceeding, after identifying the patient and observing the patient’s behaviour. These possibilities were easily understood as within the scope of the amended direction.

[86] Failure to respond to that direction constructively and actively was nothing short of the Applicant and Mr Jarvis taking everything into their own hands. In my judgement, the Applicant and Mr Jarvis were avoiding a job which they showed an immediate and instinctive aversion to at the commencement of their shift of work and doing so by imagining a situation that involved very high level risks whollyat odds with all the available information and professional assessment.

[87] It is informative that at all times in relation to this failure to attend the patient, despite the information, the patient was comprehensively pathologised to an extraordinary degree by both the Applicant and Mr Jarvis. It is difficult to identify any concern on their part for the needs of the patient. On the contrary, the patient’s needs did not enter into their conversation about or explanation of the factual matrix of the situation. In my view, this indicates that the Applicant and Mr Jarvis simply abdicated any interest in a sense of responsibility to or for the patient, who obviously felt in urgent need of medical attention.

[88] Moreover, it seems to me that the Applicant’s fundamental proposition in relation to the direction(s) of the 13th of March is that the judgement of the Clinician, the algorithmic technology and that of his duty manager were all, individually and collectively, incompetent. What is exposed in the evidence of the Applicant’s response to the direction(s), however he understood them, is his view that the risks posed by the patient could not be reduced to any limits of calculation. Such a view puts in question the Applicant’s confidence and trust in the system of work developed in accordance with the NEPT Act, the NEPT Regulations and the Protocols, governing the transportation of the patient. This view privileged the Applicant’s and Mr Jarvis’ intuitive judgement based on limited and it must be said, more likely than not, inferior knowledge or competence in the assessment of the risks inherent in any non-emergency patient transportation assignment. On what is before me, in the factual circumstances which arose in the early hours of 13 March 2012, that view was based on an entirely subjective and irrational assessment of risk which I find wholly unconvincing in the context of the amended direction.

[89] Independently of my reasons and conclusions above, it is to be noted that another crew attended the patient entirely without incident and concluded the transportation to Maroondah Hospital. As one would logically have expected, the evidence indicates that the patient was calmed and relieved by the arrival of the transportation and assurances that he would be taken to see a doctor as requested. How this most likely of scenarios could have been so comprehensively rejected in the Applicant’s evaluation of risks and threats in favour of a patient most likely to attack his rescuers with knives or guns is truly difficult to comprehend.

Baker-Goldsmith’s Evidence

[90] Ms Baker-Goldsmith is an occupational health and safety expert who gave evidence for the Applicant. Ms Baker-Goldsmith explained how she gathered the facts upon which her witness statement was based. Ms Baker-Goldsmith was given a copy of the NETCOMM dispatch report and interviewed the Applicant on 7 June 2012. The facts, as stated to her by the Applicant, were tendered as a single page document by Mr Gome. 28 Ms Baker-Goldsmith gave viva voce evidence that she was not engaged by the Applicant, or his representatives, to conduct an investigation but provided an opinion based on the information given to her by the Applicant and his representatives.29

[91] Ms Baker-Goldsmith’s evidence is of limited utility in the relevant circumstances. Ms Baker-Goldsmith was unable to establish a scientific basis for the risks attributed by the Applicant to a patient volunteering for transportation from home to hospital diagnosed as schizophrenic. 30 Moreover, and most importantly, in relation to the safety of the system of work with which the dispatch order and the direction(s) arose, Ms Baker-Goldsmith openly stated that she had not conducted an investigation of that system. Rather, Ms Baker-Goldsmith indicated that the scope of information upon which she based her evidence was an interview with the Applicant and the information provided on the NETCOMM mobile data terminal. Ms Baker-Goldsmith did not interview any of the persons in Ambulance Victoria or G4S with the relevant responsibility for the safety of the system of work, including Mr Groves. In my judgement, Ms Baker-Goldsmith’s evidence did not provide an objective basis upon which the conduct of the Applicant on the 13th of March could be said to have been reasonable, simply because she did not conduct a comprehensive investigation of all the relevant circumstances and considerations.

Valid reason

[92] For all of the above reasons I find that there was a valid reason for the termination of the Applicant’s employment comprised of failure to comply with a lawful and reasonable direction in accordance with the contract of employment between himself and G4S.

Notice

[93] On the evidence before me, the Applicant knew from the point at which he was suspended with pay, and certainly before the decision to terminate his employment was taken, that the failure to comply with the dispatch order and Ms Berry’s direction was a matter of concern and it was clear to him, I think, that this had placed his employment in jeopardy.

Opportunity to respond

[94] The Applicant was given ample opportunity to respond to the reason for the termination of his employment. I consider the opportunity to have allowed the Applicant to put his case before the decision to terminate his employment was taken.

Support person

[95] The Applicant was represented in the process that led to the termination of his employment by his union, United Voice, and there was no impediment or refusal of such representation.

Performance

[96] The termination of the Applicant’s employment did not relate to unsatisfactory performance other than the events of the 13th of March as set out above if they could in any way be characterized as such. In my view, the reason for the termination of the Applicant’s employment was his conduct on 13 March, as dealt with generally in this decision.

Size of the employer

[97] The size of the Respondent had no apparent impact on the procedures followed in effecting the dismissal.

Human resource management specialists

[98] On the evidence an absence of human resource management and specialists does not seem to have had any impact on the procedures followed in effecting the termination of the Applicant’s employment.

Other matters

[99] I consider it relevant to take into account the summary nature of the termination of the Applciant’s employment. In this respect I will frame my consideration and take into account the statutory conception of serious and wilful misconduct under the Act. For this purpose it is convenient to set out s.12 of the Act and reg 1.07 of the Fair Work Regulations 2009 (the FW Regulations):

“12 The Dictionary...

serious misconduct has the meaning prescribed by the regulations.”

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”

[100] It will be observed that a critical factor in determining the circumstances which the legislation contemplates will satisfy the exception to the obligation to give notice or payment in lieu of notice when an employee’s employment is terminated by the employer is where the conduct of an employee is fundamentally incompatible with the continuation of the contract of employment. I consider that the circumstances of the termination of the Applicant’s employment fall within this exception.

[101] In my judgement, the Applicant’s obdurate failure to contemplate proceeding to the patient’s residence to assess the situation and, if necessary, seek assistance in accordance with the direction he received from Ms Berry made the continuation of his employment unviable. The transportation of persons to hospital or between medical facilities is a critical public good. The system of transportation and the allocation of transport responsibilities is highly developed and highly regulated. The non-emergency component of the overall system is an elementary support for the ready availability of emergency transportation of patients to hospitals in Victoria. When the Applicant decided to place his own and Mr Jarvis’ judgement above this system and reserve to himself the discretion to respond or not respond to the dispatch order, as it evolved on 13 March, placed him completely at odds with the system, in a way which had no objective or reasonable basis. In these circumstances and with little evidence of any realisation of the serious implication of such conduct for the viability and continuity of the whole patient transport system it is impossible to accept that such arbitrary decisions and failures to comply with lawful and reasonable directions for patient transport could be compatible with the continuation of the Applicant’s contract of employment.

[102] I therefore find that the conduct of the Applicant on 13 March was serious misconduct within the meaning of sub-regulations 1.07(2) and 3(c) of the Fair Work Regulations 2009 (Cth). Moreover, I find for the purposes of sub-regulation 4 of regulation 1.07 that conduct was conduct which made employment during the period of notice which would otherwise have applied unreasonable, in the particular circumstances of the case. While the statutory provisions and the relevant provisions of the FW Regulations operate for specific purposes they provide suitable guidance when considering the characterisation of what will constitute serious misconduct of an employee for the exercise of the statutory duty to hear and determine an application for relief from an alleged unfair dismissal under the Act.

Harsh, unjust or unreasonable

[103] When considering the circumstances under which the termination of an employee’s employment may be said to be harsh, unjust or unreasonable, the following extract from the judgement of McHugh and Gummow JJ in the case of Byrne and another v Australian Airlines Limited 31 is apt for my consideration in this matter:

“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.” 32

[104] Taking into account all of my findings in relation to the matters referred to in s.387 of the Act I am not satisfied that the termination of the Applicant’s employment was harsh, unjust or unreasonable. In circumstances where an employee’s employment is terminated for reason of serious misconduct comprised of noncompliance with a lawful and reasonable direction and that reason is sound, defensible and well founded, some other consideration would need to apply before it could be concluded that the termination of the employee’s employment was harsh, unjust or unreasonable.

[105] Such consideration may arise from a failure of procedural fairness, or the harshness of the effects upon an employee’s economic situation and personal circumstances.

[106] As will have been observed there was no failure of procedural fairness which I consider could lead to a determination that some unjust or unreasonable consideration of the reasons for the Applicant’s noncompliance with the direction(s) he was given on 13 March applied.

[107] I have considered the Applicant’s specialist skills and the limited opportunities for the use of such skills and the potential prejudice to him of the termination of his employment and his ability to find employment of similar kind.

[108] I have also taken into account what limited evidence there is of the economic effect on the Applicant’s household, from which I detect disadvantage, but to a degree difficult to quantify beyond a period of unemployment.

[109] Against these considerations must be balanced the gravity of the reason for termination of the Applicant’s employment.

[110] Unfortunately, I think the Applicant lost sight of the various and reasonable considerations of his duties and responsibilities in the non-emergency transport industry, his employment with G4S, the importance of the employer’s undertaking to the public health system and sought to impose a highly subjective and uninformed veto on a necessary public health function. By doing so the Applicant largely took his fate into his own hands and made critical judgements concerning his willingness to adhere to the system of work which had been designed to address his concerns. I am particularly influenced by the Applicant’s noncompliance with the direction to attend the address and assess the situation with express provision having been provided for discretion to seek support in dealing with the patient if necessary, including police attendance.

[111] Balancing the gravity of the Applicant’s noncompliance with lawful and reasonable directions to provide a distraught patient with transportation to hospital and what I know of the effects of the termination of his employment on his personal circumstances, on balance, I am not satisfied that the termination of the Applicant’s employment was harsh, unjust or unreasonable.

[112] For all of these reasons the application is dismissed.

COMMISSIONER

Appearances:

Mr S. Gome of United Voice for Mr. Steffen Haun

Mr N. Harrington of counsel and Mr. D. Hartnett, solicitor, for G4S Health Services Australia Pty Ltd

Hearing details:

2012.

Melbourne.

November 12, 13 and 14.

Final written submissions:

1 February 2013, Mr. S. Gome of United Voice, on behalf of Mr. Steffen Haun.

21 January 2013, Mr. C. Grant of Ambulance Victoria, on behalf of G4S Health Services Australia Pty Ltd.

1 Non-Emergency Patient Transport Regulations 2005 (Vic)

2 PN3090

3 Exhibit AV1.

4 Exhibit A1, Statement of Steffen Haun, paras 3–5.

5 Ibid at paras 6–7.

6 Attachment SH-6 to Exhibit A1, Statement of Steffen Haun.

7 Attachment SH-16 to Exhibit A1, Statement of Steffen Haun.

8 Attachment JJ-1 to Exhibit A2, Statement of Jeff Jarvis.

9 Attachment SH-15 to Exhibit A1, Statement of Steffen Haun.

10 Ibid.

11 Exhibit A1, Statement of Steffen Haun, paras 51–56, 60–64.

12 Exhibit R2, Statement of Helen Berry, paras 9–14.

13 Attachment SH-16 to Exhibit A1, Statement of Steffen Haun.

14 Attachment JJ-1 to Exhibit A2, Statement of Jeff Jarvis.

15 Attachment SH-16 to Exhibit A1, Statement of Steffen Haun.

16 Transcript in matter U2012/6659, 14 November 2012, PN2200–2230.

17 Attachment SH-7 to Exhibit A1, Statement of Steffen Haun, p.71.

18 Ibid at p.13.

19 Final submissions of the Applicant, 16 November 2012, paras 1–4.

20 Macquarie Concise Dictionary (5th ed, 2009), meaning of “must”, p.826.

21 Ibid, meaning of “should”, p.1162.

22 Attachment SH-7 to Exhibit A1, Statement of Steffen Haun, p.13.

23 Ibid at p.69.

24 Exhibit AV1, Letter from Colin Grant, 21 January 2013.

25 Outline Submissions for the Applicant, 3 September 2012, para 39.

26 Exhibit A1, Statement of Steffen Haun, para 52.

27 Transcript in matter U2012/6695, 12 November 2012, PN686.

28 Exhibit A4.

29 Transcript in matter U2012/6695, 13 November 2012, PN1312–1316.

30 Transcript in matter U2012/6695, 13 November 2012, PN1389-1391.

31 (1995) 185 CLR 410.

32 (1995) 185 CLR 410 at 465.

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