Myburgh v Board of Management of Royal Perth Hospital
[1996] IRCA 374
•14 Aug 1996
DECISION NO: 374/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged UNLAWFUL TERMINATION - security officer - disposal of a suspected prohibited substance - whether formal or informal policy within the knowledge of applicant - investigation - whether VALID REASON for TERMINATION - REINSTATEMENT.
Industrial Relations Act 1988 (C'th) SS 170DE, 170EA, 170EE
GERRIT JOHANN MYBURGH v BOARD OF MANAGEMENT OF ROYAL PERTH HOSPITAL - WI 1135 of 1996
Before : BOON JR
Place : PERTH
Date of Judgment : 14 AUGUST 1996
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
WI 1135 of 1996
B E T W E E N:
GERRIT JOHANN MYBURGH
Applicant
A N D:
BOARD OF MANAGEMENT OF ROYAL PERTH HOSPITAL
Respondent
MINUTE OF ORDERS
14 AUGUST 1996 PERTH BOON JR
THE COURT DECLARES AND ORDERS THAT:
The respondent breached the provisions of section 170DE(1) and section 170DE(2) of the Industrial Relations Act 1988 (Cth) in terminating the applicant’s employment.
The respondent reinstate the applicant by reappointing him to the position in which he was employed immediately before the termination, within 7 days of the date of this order.
The respondent pay to the applicant the remuneration lost by him because of the termination.
Unless the parties agree the amount of the remuneration lost by the applicant and file relevant consent orders by 3 September 1996, the matter be set down for further submissions in relation to the amount of remuneration lost at 9:30 am on Thursday, 5 September 1996.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
WI 1135 of 1996
B E T W E E N:
GERRIT JOHANN MYBURGH
Applicant
A N D:
BOARD OF MANAGEMENT OF ROYAL PERTH HOSPITAL
Respondent
REASONS FOR DECISION
14 AUGUST 1996 BOON JR
This is an application under section 170EA of the Industrial Relations Act 1988 (the "Act") seeking reinstatement and compensation arising out of the alleged unlawful termination of the applicant’s employment by the respondent. The applicant, Mr Myburgh, alleges that there was no valid reason for the termination of his employment as required by section 170DE(1) of the Act, and further says that the termination was in any event harsh, unjust or unreasonable within the meaning of those words in section 170DE(2). It is further alleged by Mr Myburgh that the investigation into the incident leading to the termination was defective.
The respondent’s position is set out in its summary of facts filed 10 July 1996. The relevant parts relating to the incident leading up to the termination are set out in paragraphs 1 - 10 as follows:-
"(1)The applicant was employed by the Board of Management of Royal Perth Hospital from 23 July 1992 to 15 March 1996 as a permanent full-time security officer.
(2)The applicant’s employment was under the Hospital Salaried Officer’s Award ("HSOA") No. 39 of 1968.
(3)On Friday, 8 March 1996 the applicant was working a night shift at the hospital and was called to visit the emergency department.
(4)A registered nurse, Kim Choo, working in the emergency department told the applicant that he had found a plastic bag containing a quantity of green leaf plant material which appeared to be a prohibited substance. This had been found in cubicle 7 where Nurse Choo was treating a patient.
(5)Nurse Choo contacted the security unit and handed the alleged substance to a security officer later identified as the applicant.
(6)Nurse Choo asked the applicant what he should do with the suspected prohibited substance and the applicant replied that Nurse Choo should give it to him and that he would dispose of it. Nurse Choo handed the plastic bag with the suspected prohibited substance in it to the applicant.
(7)The applicant went to the basin in the area immediately adjacent to the emergency department to wash the suspected prohibited substance in the plastic bag down a drain. A patient care assistant, Steve Donaldson, came into the area whilst the applicant was about to wash the substance down the drain and said "What are you doing?". "Don’t do that, give it to me I’ll take it home and give it to my wife."
(8)The applicant said that he would take the substance himself in a joking manner and then Steve Donaldson once again said "Give it to me."
(9)The substance was partially unwrapped at this stage and the applicant then wrapped it and then gave it to Steve Donaldson and walked away.
(10)The applicant did not see whether or not Steve Donaldson disposed of the package in a rubbish bin as he left the room immediately upon giving Mr Donaldson the package."
BACKGROUND FACTS
The applicant, Mr Myburgh, is 51 years old. He started employment as a full-time security officer at Royal Perth Hospital in July of 1992. Mr Myburgh said that when he started work he received no formal training in his duties other than being shown how to do the work by another security officer, and being sent on several training courses during the course of his employment. The duties of security officers at the hospital vary but they are expected to maintain a high profile and protect staff, patients, visitors and hospital property. Security officers follow up on reports of incidents such as theft or suspicious persons. Prior to the incident for which Mr Myburgh was eventually dismissed he never received any formal censure in relation to the way in which he carried out his duties.
On the evening of 8 March 1996, Mr Myburgh was on duty with Rod Simmonds, another security officer. In the course of the evening, Mr Myburgh ran into and spoke to a patient care assistant, Mr Steve Donaldson, with whom he was on friendly terms. Mr Donaldson and Mr Myburgh were having a conversation when a nurse, Kim Choo, came in and handed Mr Myburgh a small quantity of what was suspected to be marijuana. According to Mr Myburgh, the substance was wrapped in alfoil. Mr Myburgh’s version of events is that Nurse Choo asked him what he would do with the substance. Mr Myburgh replied that if it was what he thought it was, he would dispose of it. Mr Myburgh said that Nurse Choo replied jokingly that he would take it to smoke himself. All three men laughed. Steve Donaldson said "Give it to me, my wife uses it all the time." Mr Myburgh thought Mr Donaldson was joking. Mr Myburgh said as a joke that he would smoke it himself. Nurse Choo laughed and walked out of the room.
Mr Myburgh on his evidence then went to the wash basin with the intention of washing the substance down the sink. Mr Donaldson asked if he could have a look at it and Mr Myburgh handed it to him. Mr Myburgh was then distracted by a radio call or a nurse calling out to him or something like that. Mr Myburgh said to Mr Donaldson "Ditch it, get rid of it." Mr Donaldson then sniffed the substance and pulled a nasty face. According to Mr Myburgh, he saw Mr Donaldson examine the package and then throw it in the rubbish skip which is a high metal bin used to cart out rubbish bags.
Mr Myburgh said that the whole incident took a maximum of 2 minutes from the moment Nurse Choo handed the substance to him until he walked out of the room. He regarded the incident as something insignificant as the substance was disposed of. He admitted that he didn’t record it in the log book or mention it to his partner, Rod Simmonds, whose turn it was to enter events into the log book. Mr Myburgh said that he neglected to mention the incident to Mr Simmonds as he had forgotten about it. At the time, he didn’t think that the way in which he handled the incident was wrong. In hindsight, Mr Myburgh admits that he made a mistake in not mentioning it to Mr Simmonds or ensuring that it was written up in the log book.
It was clear from Mr Myburgh’s evidence that the way in which he handled this incident was affected by what had happened in a prior incident in September 1995 in which he was involved. That incident will be dealt with further on in these reasons for judgment.
Kim Choo, the nurse who gave the substance to Mr Myburgh, confirmed that the staff at the hospital often joke with each other because the work is very stressful. According to Mr Choo the substance he found was contained in a plastic bag with a roll over top. He said that there was a small quantity of green substance in the bag. Mr Choo said that he took the substance to Mr Myburgh and asked him to dispose of it. Mr Choo said that he didn’t think very much of the incident at all until he was approached to make a statement about it some days later.
Mr Donaldson gave evidence that he was working as a patient care assistant on night shift and talking to Mr Myburgh. He was writing down details of a job at the same time. In a statement made by Mr Donaldson on 19 March 1996 to hospital staff he said that:
"We were sitting around talking when RN Kim Choo came out. He said "I found this inside, dispose of it please."
We all then laughed and joked and talked about it for a few minutes. When it was handed to Gerrit he said "What is it?". It was in a clear plastic bag, tiny flat strips and didn’t smell too good.
Then something happened, Gerrit’s page or the phone went off. Gerrit did not come back. I was doing garbage so I threw it into the bin and then into the skip."
Later on in the statement Mr Donaldson said that the substance was a brownish colour and contained in a small plastic bag like a lunch bag that kids have. Mr Donaldson said in his statement:
"It was purely a joke, we were all sitting around joking, I might have said "My wife doesn’t mind a smoke, she would love this" but we were just joking."
In his statement, when asked "Did anyone see you throw the suspected prohibited substance into the bin", Mr Donaldson replied "No". He was asked "Did security officer Myburgh say anything to you when he gave you the suspected prohibited substance?". Mr Donaldson replied "He didn’t give it to me, I asked to have a look at it, then the page or phone went off, then Gerrit left. Gerrit said nothing when he left. I waited for three or four minutes and Gerrit did not come back so I threw it into the bin". When he was asked "Did Gerrit say anything to you like ‘Get rid of it?", Mr Donaldson replied "I honestly can’t remember, he might have said that but I cannot recollect, so many things happen in accident and emergency on a night shift that you forget half of it."
In his evidence in court Mr Donaldson said that he didn’t know if anyone was there when he tossed the bag into the bin. He said that he was pretty sure that Mr Myburgh had left the room but he didn’t pay much attention to what Mr Myburgh did. Mr Donaldson said that the whole incident took only a couple of minutes. He said that when he had received the substance he was pretty sure it was rolled up in a plastic-type cylinder. It was possible that somebody could have thought that it was alfoil. In cross-examination Mr Donaldson admitted that his recollection of the evening was not very good as so many things happen on night shift. He said that he did not know who saw him put it in the bin as he was not looking. Mr Donaldson said there could have been eight people in the room for all he knew. They were very busy that evening and at the time he didn’t think it was such a big deal. Mr Donaldson said that the whole incident happened very quickly and innocently. In re-examination Mr Donaldson said that Mr Myburgh was walking out and he had his back turned when he threw the substance into the bin. He didn’t know if Mr Myburgh was still there when he threw it away.
THE INCIDENT IN SEPTEMBER 1995
The court heard evidence from Mr Myburgh and Mr Simmonds in relation to an incident which occurred on 26 September 1995. Mr Myburgh and Mr Simmonds were rostered together on day-shift on that day. They were paged to attend the intensive care unit. A package was handed to them by an orderly. The package contained what was suspected to be a Budha stick, or marijuana. The security officers told the intensive care unit staff that they would take care of it. According to Mr Myburgh, Mr Simmonds was unhappy as they were not sure what to do with the substance. They had received no instructions about how to dispose of such material. Mr Myburgh’s evidence was that he tore the package in half and he and Mr Simmonds both flushed it down the toilet. As they were concerned about what the correct procedure was, they then spent about an hour looking through the manuals in the security officer’s room but couldn’t find any written instructions about how to deal with situations such as that. Mr Myburgh said he then told Mr Simmonds to write it up in the log book. According to Mr Myburgh, he recalled Mr Simmonds coming to him three or four days later when they were on shift together again. Mr Simmonds said that he had discussed the matter with Mike Baker, a security consultant with the hospital. Mr Baker had confirmed to Mr Simmonds that he had seen the log entry. Mr Baker himself didn’t speak to Mr Myburgh about this incident. The message Mr Myburgh received from Mr Baker through Mr Simmonds was that "the security officers get paid a large salary and they should use their common sense and initiative in incidents such as this". According to Mr Myburgh they were led to believe by Mr Baker that "we are grown ups and are paid a lot to do this job". Mr Myburgh said that nobody form the hospital spoke to him about this incident.
Mr Simmonds gave evidence in relation to that incident. His evidence was that when they received the suspected prohibited substance they were unsure what to do with it. They checked the manuals and files and found nothing to assist them. Mr Simmonds said they did this before they disposed of the substance. Mr Simmonds’ recollection was that Mr Myburgh himself disposed of the whole of the substance by flushing it down the toilet or sink. He did not complete a detailed incident report on the matter but simply wrote it up in the log book. As he was still not sure what the procedure was, Mr Simmonds spoke to Mr Baker when he next came into the office, described what he had done, and asked if they had done the right thing. Mr Baker told Mr Simmonds that they had done the right thing and that it was pretty much up to the discretion of the officers on duty as to how to dispose of the substance. Mr Simmonds had the impression that with such a small quantity of marijuana it was not considered to be "a big deal". If the security officers were handed something "more exotic" or in a larger quantity, they would be expected to call the police. Mr Simmonds said that Mr Baker had told him that it was up to their own discretion as to what to do with it.
I do not consider that the difference in recollection between Mr Myburgh and Mr Simmonds as to the details of this incident is of any significance. The incident occurred a considerable time ago and the main thrust of their evidence is similar.
Mr Warren Treadgold, the assistant manager of the hotel services section at Royal Perth Hospital, gave evidence that he reads the security log book everyday. He does not remember seeing this incident recorded. The log book entry was, however, an exhibit at the hearing of this matter and I am satisfied that the incident occurred in the way in which Mr Simmonds and Mr Myburgh described it.
Mr Baker gave evidence that he believed that Mr Myburgh had been involved in an earlier incident relating to the disposal of drugs but he could not remember speaking to either Mr Myburgh or Mr Simmonds about it. Mr Baker said in cross-examination that in the overall scheme of jobs carried out by security guards, an incident such as this is "not high on the level of major jobs."
Donna Hood, a security officer with Royal Perth Hospital who is now on workers compensation or stress leave, gave evidence that she had, whilst working at Royal Perth Hospital, been involved in an incident relating to a suspected prohibited substance. She said that Mike Baker handed her a satchel of white powder found by a doctor in the coffee shop. Ms Hood said that Mike Baker told her to get rid of it. She flushed the substance down the toilet and put the satchel in the bin. She said that Mr Baker had not given her specific instructions as to what to do with the substance. She did not complete an incident report but wrote it in the log book. Mr Baker said that he did not recall this incident but he said that he would not have given Ms Hood a white powder to dispose of. It was only small quantities of marijuana which would be disposed of in that manner. However Ms Draydon, the manager of hotel services at Royal Perth Hospital, said that she did recall seeing a log book entry to the effect that Ms Hood had been involved in the disposal of a suspected prohibited substance, although she could not remember what the substance was.
It is clear to me from the evidence of both Mr Myburgh and Mr Simmonds, which I accept in this regard, that there had been a prior incident involving Mr Myburgh disposing of a small quantity of a suspected prohibited substance. I accept Mr Myburgh’s evidence that the quantity disposed of in September 1995 was smaller than the quantity disposed of in March 1996. The hospital, through Mr Baker, was aware that this incident had happened. Mr Myburgh was indirectly told that the way in which he had acted on that occasion was acceptable. As a result, he was entitled to believe that with small quantities of what was suspected to be marijuana, he could dispose of them without calling the police.
THE FORMAL POLICY
One of the reasons given by the hospital for the termination of Mr Myburgh’s employment was that he failed to follow hospital policy in relation to the disposal of suspected prohibited substances. The hospital pointed to a formal written policy contained in a memorandum from Mr P.O. Lowe (administrative officer, services) to, amongst other staff, security officers. The memorandum was dated 24 June 1991. It reads as follows:
"There are occasions when patients admitted to the hospital may have in their possession items:-
(1)For which a licence is required, e.g., ammunition, detonators, guns, etc.
(2)Which are illegal, e.g., certain drugs or plant matter.
Licensed items may not be placed in Patient Trust, because the hospital does not have a licence for them, and it is generally preferable that they not be stored in a bed-side locker. In such cases the Duty Security Officer should be contacted and he will arrange for the item to be removed from the Hospital either by a friend/relative or the Police. The Police have indicated their willingness to store licensed items.
Illegal items will not be stored in Patient Trust or bed-side locker. Again, the Duty Security Officer should be contacted and he will arrange for the item to be removed from the site by the Police.
If you have queries on this matter, please do not hesitate to contact me."
Mr Myburgh gave evidence that he had never seen this memorandum prior to his dismissal. Mr Simmonds gave evidence that he was not given a copy of the memorandum when he started work at Royal Perth Hospital. He found a copy of the memorandum in his pigeon hole a month after Mr Myburgh was dismissed. He had not seen it before that date.
Ms Hood was shown a copy of the memorandum whilst giving evidence and said that this did not form part of her standing instructions when she was employed. She did not recall seeing it while she was employed at the hospital.
Colin George, a security officer at the hospital since the inception of the security unit in 1990, gave evidence that he saw the memorandum in 1991 when it was first produced. His evidence was that it came about as a result of an incident in which he was involved in which a patient had a quantity of ammunition on him. He next saw the memorandum about two weeks after Mr Myburgh was dismissed. He could not recall any mention of it in the meantime. Mr George said that he reorganised the security officers’ manuals about 2 weeks prior to Mr Myburgh’s dismissal and he did not come across that memorandum in circumstances in which he would have expected to have seen it had it been there. Two weeks after Mr Myburgh was dismissed there was a meeting at which Mr George asked the management where the instructions for dealing with suspected prohibited substances were written down. He was told that it was written in a memorandum in the back of the standing orders. Mr George did not recollect the memorandum then, but he did when he saw it again. Mr George said that he had himself been involved in disposing of a suspected prohibited substance by flushing it down the toilet or sink and said that he did not write it in the log book at the time.
Mr Mark Davis, another security officer employed by Royal Perth Hospital, said that the written memorandum was not contained in the materials he was given when he started work at Royal Perth Hospital. He did not see it until a copy on the notice board in the security officer’s room was pointed out to him.
Mr Baker gave evidence that the 1991 memorandum was located in the security manual in the security officer’s office but not in the personal copies given to the security officers. It was not mentioned in the index to the manual, and this was an oversight. At the time it was issued in 1991, a copy was given to each officer.
In these circumstances, I find as a fact that Mr Myburgh and at least some of the other security officers’ employed by Royal Perth Hospital were unaware of the hospital’s formal written policy relating to the disposal of suspected prohibited substances. Even if it was at all times located in the back of the security officers manual in the office, the memorandum was not contained in the personal copies of the manual held by the officers and it was not listed in the index to the manual. In these circumstances I consider that the hospital did not do enough to bring the memorandum to the attention of its staff.
THE UNWRITTEN POLICY
Mr Baker gave evidence that, despite the fact that there was a formal policy relating to the disposal of suspected prohibited substances, there had been an informal policy in place ever since the security unit was established. Mr Baker said that although in theory all suspected drugs should be handed to the police, in practice it is too much work to do that for small quantities of marijuana. Mr Baker said that as a matter of practicality, the hospital allowed its security officers to dispose of small quantities of marijuana by flushing them down the toilet or sink, preferably with a witness present. It should be written up in the log book. Mr Baker said the only other form of disposal of suspected drugs is to hand them to the police. Mr Baker said that all the security officers were aware of this informal policy or should have been aware of it. He admitted, however, that he did not personally make everyone aware of that policy. Mr Baker admitted that the informal policy totally contradicts the official policy. He said that in retrospect, he could see that it was probably unwise to have two contradictory policies in place, but he had found this to be a practical way of dealing with the issue. He said that the security officers were expected to use their common sense and that it was impossible to write down a procedure for every issue that might arise.
Mr Myburgh’s evidence was that he understood the unofficial policy, as communicated to him by Mr Simmonds, to be that the security officers should use their common sense and initiative. Mr Myburgh’s evidence was that he was not aware that the policy required him to flush small amounts of drugs down the toilet or sink. That is what he had done on the previous occasion but he understood Mark Baker to have said that they were paid a lot of money to use their common sense.
Mr Simmonds’ understanding of the policy was that it was pretty much up to the discretion of the officer on duty as to how to dispose of the drugs. Mr Simmonds did not remember whether Mr Baker specifically said that he had to flush the substance down the toilet or sink. He was not sure if Mr Baker had said the discretion related only to small amounts of marijuana. Mr Simmonds did however consider that such incidents should be noted in the log book. He did not consider it necessary to complete an incident report.
Ms Hood gave evidence that when she flushed the powder down the toilet Mr Baker did not tell her how to get rid of the substance. She was given no specific instructions about what to do with it and she did not write an incident report.
Mr George gave evidence that he disposed of a small amount of marijuana by flushing it down the sink. He did not write the incident down. Mr George said that if he had been involved in any incidents relating to drugs, he would have relied upon his common sense. Mr George said that no two incidents are the same. Since he has received the copy of the 1991 memorandum, however, if he were to be involved in finding any drugs he would hand them to the police and note them in the log book.
The respondent’s witnesses, Mr Seeds, Mr Treadgold and Ms Draydon (the manager of hotel services at Royal Perth Hospital) all said that they became aware of the existence of the informal policy only on the day prior to Mr Myburgh’s dismissal. Mr Treadgold and Ms Draydon both admitted that the existence of an informal policy which totally contradicted the formal policy was of some concern to them.
Although from the hospital’s point of view the requirements of the informal policy were that it related only to a small amount of marijuana; that it should be flushed down a toilet or sink; that this should be done preferably in the presence of witnesses; and that it should be noted in writing in the log book, I find as a fact that these requirements were not adequately communicated to the security officers employed by the hospital. I am satisfied that neither Mr Myburgh nor Mr Simmonds were told of all of the details of this "policy". As is to be expected with an informal "policy" which is communicated by word of mouth, the understanding of the people involved in applying it will be different from person to person.
INCIDENT REPORTS
One of the formal reasons given to Mr Myburgh for his termination was that he did not complete an incident report relating to the incident for which he was terminated. The security standing instructions given to each security officer state in part "incident reports are to be completed by the attending security officer for complaints such as theft, damage, suspicious persons, breaking and entering offences, lost and found property, etc". Mr Myburgh admits that he did not complete an incident report relating to the incident. He admits that he did not note it in the log book. He said that he forgot to mention it on the evening, and thought at the time that the whole incident was a minor one. In retrospect he realises that he should have written it down in the log book.
Mr Myburgh mentioned that he had been verbally reprimanded in the past about putting too much detail in his log book entries. He was aware, however, that it was important to write up the log book.
Mr Baker gave evidence that incident reports are filled in if there is likely to be further enquiry or action needed. For anything not requiring a follow up, for example the disposal of drugs, there is no need for an incident report.
It was clear from the evidence of Mr Myburgh, Mr Simmonds, Ms Hood and Mr George that they had all previously been involved in disposing of drugs and had not completed incident reports. Mr Baker’s evidence confirmed that they were not required to do so.
Mr Seeds gave evidence that one thing taken into account when considering whether or not to dismiss Mr Myburgh was that he did not fill in an incident report. Mr Treadgold’s evidence was that he considered disposing of a suspected prohibited substance as a major incident. Ms Draydon concurred with this view. Mr Treadgold and Ms Draydon stressed, however, that if Mr Myburgh had documented the matter in the log book it is unlikely that he would have been dismissed.
THE EVENTS OF THURSDAY, 14 MARCH 1996
Mr Baker gave evidence that he first became aware of the incident which led to Mr Myburgh’s termination on 14 March 1996. He was left a note indicating that Mr Myburgh had been handed a suspected prohibited substance by a nurse in the emergency department and that there had been no documentation created about it. Mr Baker checked the log book and incident reports and was unable to find any documentation. He found out the name of the nurse involved and had a brief interview with him. The nurse had indicated to Mr Baker that a small bag of marijuana had been handed to Mr Myburgh. Mr Baker took a statement from the nurse.
Mr Baker discussed the matter with Mr Treadgold and it was decided that they should speak to Mr Myburgh. This occurred during the afternoon of Thursday, 14 March 1996 at about 3:15 pm. Mr Myburgh was asked to come to Mr Treadgold’s office. Mr Treadgold’s evidence is that he told Mr Myburgh that he had heard that he had been handed an amount of suspected prohibited substance and no note was found in the log book. Mr Treadgold said that Mr Myburgh explained he had received the substance from the nurse. Mr Treadgold said that he asked Mr Myburgh what he did with the substance and Mr Myburgh said that he gave it away to a staff member. He said that he handed it on to an orderly in the emergency department by the name of Steve. Mr Treadgold said that Mr Myburgh advised him that he was about to dispose of the substance when Steve said to give it to him as his wife uses it and that that was the end of the matter.
Mr Treadgold said that the meeting with Mr Myburgh lasted between about 3:15 and 3:35 pm. He did not take notes during the meeting. He talked to Mr Baker after Mr Myburgh left the meeting. They went to see Ms Draydon, the next manager in line, and discussed it with her. Ms Draydon and Mr Baker then went to speak to Colin Waters who was higher up in the management chain. Mr Treadgold stayed in his office and typed up a memorandum relating to the incident. The body of the memorandum reads as follows:
"We received information indicating that, on the night of Friday, 8 March, 1996 a quantity of suspected prohibited substance had been handed, by a Nurse working in the Emergency Department, to Security Officer Gerrit Myburgh.
We interviewed Mr Myburgh at approximately 1515 on the afternoon of Thursday, 14 March 1996 and advised him that this information had come to our attention. We asked him what he knew of this matter.
Mr Myburgh replied that on Friday, 8 March 1996 he was contacted by a nurse who was working in the Emergency Department, who told him that he had found a bag containing what appeared to be a prohibited substance in cubicle 7 where he was treating a patient. Mr Myburgh said that the nurse asked him what he should do with it. Mr Myburgh replied that he (the nurse) should give it to him and that he (Mr Myburgh) would dispose of it. Mr Myburgh said the nurse then handed him the bag of substance.
When asked what he then did with the substance, Mr Myburgh said that he went to the Orderlies Room in the Emergency Department and was about to dispose of it down the sink when a Patient Care Assistant known as Steve came up to him and said "What are you doing?" Mr Myburgh said that he was going to dispose of the substance down the sink. The person known as Steve then said "Don’t do that, give it to me; I will take it home and give it to my wife." Mr Myburgh said that he then handed the substance to "Steve". When asked if there was anyone else in the room at the time, he replied that he thought there was but was not sure.
When asked as to why he did not enter it into the occurrence book, he replied that he knew that he had done the wrong thing.
Mr Myburgh was then advised to resume his duties and that he would be contacted in due course. Mr Myburgh resumed his duties at approximately 1535".
Mr Treadgold and Mr Baker both gave evidence that they felt that what is written in the memorandum is accurate, and both felt that Mr Myburgh said that he had not entered the incident in the log book as he knew he had done the wrong thing. It appears, however, that the memorandum was not written until some time after the interview; no notes were taken of the interview; many things were said at the interview which were not recorded in the memorandum; and a copy of the memorandum was never shown to Mr Myburgh or his union representative prior to Mr Myburgh’s dismissal.
Mr Myburgh’s recollection of the interview was that when he was called in to Mr Treadgold’s office he at first did not know what Mr Treadgold was on about. He told Mr Treadgold or Mr Baker to the best of his recollection what had happened and they looked shocked and asked if he knew whether it was a serious offence. Mr Myburgh said that he could now see that he had done something wrong and expected a reprimand. Mr Myburgh said that at the interview he told them that he had given the substance to Steve and that this had been misconstrued. He had merely handed the substance to Mr Donaldson upon his request after they had been joking about the matter. He was then distracted and told Mr Donaldson to get rid of it.
Ms Draydon said that on a Thursday afternoon she had been approached by Mr Treadgold and Mr Baker and told that on Friday, 8 March 1996 Mr Myburgh had been approached by a nurse and given a plastic bag containing a small amount of marijuana. Mr Myburgh had passed it on to another member of the hospital staff. Ms Draydon understood that Mr Treadgold and Mr Baker considered the matter serious and had reported to her as the next manager in line. They discussed it and decided to speak to Mr Colin Waters. Ms Draydon said that she considered it a serious incident as an item had been given to Mr Myburgh in his role as a security officer. He was in a position of trust and the substance had not been disposed of properly. Ms Draydon said that she had become aware that afternoon that there was an informal policy relating to flushing a small amount of marijuana down the sink, preferably with witnesses present and the incident recorded in the log book.
After Ms Draydon spoke to Mr Waters he contacted Mr Seeds, the industrial relations manager at the hospital. They discussed the incident and decided they needed to meet with Mr Myburgh again to discuss the allegation. Ms Draydon recalled that Mr Seeds contacted Mr Myburgh and arranged for him to meet in her office on the following morning. Mr Seeds gave evidence that at about 5:30 pm on 14 March 1996 he called Mr Myburgh into his office. Mr Treadgold was present. Mr Seeds said that he indicated to Mr Myburgh that the hospital was in receipt of a serious allegation and that it was important for him to get legal or union representation or bring a friend. Mr Seeds suspended Mr Myburgh on full pay after outlining the allegation to Mr Myburgh. Mr Myburgh asked what would happen and Mr Seeds said that he couldn’t say at that stage. Mr Seeds said that he indicated to Mr Myburgh that the formal investigation had not yet started but would commence at 9:00 am on the following day.
THE MEETING OF FRIDAY, 15 MARCH 1996
A meeting was held on Friday, 15 March 1996 at 9:00 am at Royal Perth Hospital. The meeting was attended by Mr Myburgh; his union representative Ms Corrine Drew; Mr Treadgold; Ms Draydon and Mr Seeds. At the start of the meeting Mr Seeds indicated to Mr Myburgh and Ms Drew that he proposed to outline the allegations that had been made against Mr Myburgh and then to ask a series of questions in relation to these allegations. Mr Myburgh and Ms Drew indicated they had no objections to this process. Mr Seeds stated that the hospital had received information that Mr Myburgh had committed a misconduct in that he had:
"1.Knowingly given to a hospital employee a suspected prohibited substance that was given to you in your position as a security officer.
2.That you have failed to follow hospital policy in relation to the disposal of suspected prohibited substances.
3.That you have failed to follow hospital policy in relation to completing a (sic) incident report in relation to the incident."
Mr Seeds gave evidence that he had written a question on the top of a number of clean pages before he attended the meeting. He read out the questions and noted down the answers himself. The relevant parts of the interview are as follows:
"Seeds On one occasion were you handed a plastic bag containing a quantity of green leaf plant material suspected of being a prohibited substance?
MyburghI was not given a plastic bag.
MyburghShortly after 11:00 pm or round about that time I was given small alfoil package which was wrapped up. It was about ¾ to 1" long.
SeedsWhat did you propose to do with the suspected prohibited substance?
MyburghMy first intention was to wash the suspected substance which I assumed to be marijuana down a drain.
SeedsWhere did you propose to wash this substance down?
MyburghIn a hand basin in the Hospital’s Casualty Department.
SeedsWhat did you actually do with the suspected prohibited substance? When did this occur?
MyburghKim (Choo) was standing there. He said what are you going to do with it? Steve Donaldson who I was in a conversation with came in and saw that I was in the process of about to destroy it. Kim jokingly said "give it to me" and he walked away. Steve (Donaldson) said to me "give it to me, my wife uses it all the time."
MyburghI then said I don’t use drugs I’ve never used this shit. I will take it, I said this jokingly. Steve then said again "give it to me. "
As it was partially unwrapped at this stage I wrapped it and gave it to Steve and said "you get rid of it" and I walked off.
SeedsWas there anybody else around at that time?
MyburghBarry Emery was on duty - Casualty was very busy.
SeedsWas Mr Emery there?
MyburghI don’t know but I know he was on duty.
SeedsAre you aware of an existence of Royal Perth Hospital Security Standing Instruction?
Myburgh Yes.
SeedsHave you a copy of Royal Perth Hospital’s Security Standing Instruction?
MyburghI have.
SeedsAre you aware of the correct policy in relations to the disposal of suspected prohibited substances?
MyburghI have not seen anything in writing, however in general conversation and hearsay with other Security Officers I am aware of this policy.
Mike Baker indirectly told me once.
SeedsWhat do you mean by indirectly told you?
MyburghI was once told of the Hospital’s policy indirectly by Mike Baker via another Security Officer.
SeedsDo you comply with this policy?
MyburghNo I didn’t.
SeedsAre you aware of Royal Perth Hospital’s Security Standing Instructions in relation to the completing of Incident Reports?
MyburghYes.
SeedsDid you comply with this policy?
MyburghBasically no. I did not consider it was a major incident. If I write down all the incidents that occur every day I would writing essays all day long.
SeedsWhy did you give the suspected prohibited substance which had been handed to you in your capacity as Security Officer to a hospital employee named Steve?
MyburghIt was a small quantity. I did not think it was significant, that it was anything major. Steve requested it. I gave it to him to get rid of. I relied on him to do it.
SeedsHave you ever done that before?
MyburghNo.
SeedsDid you receive any payment for giving the suspected prohibitive substance to an hospital employee?
MyburghAbsolutely not.
SeedsIs there anything else you wish to say in relation to this matter?
MyburghI realise in hindsight that it was stupid. It is totally out of character. That is no excuse it was totally irresponsible. I apologise for it.
MyburghIf the hospital was to overlook this incident it would never occur again.
MyburghI have tried to show my loyalty to the hospital over the last 3½ years. I am loyal and hard working.
MyburghI realise that this incident has probably cost me my bread and butter. I would accept a severe reprimand.
Ms DrewThere have been three people involved in this incident and they are all equally responsible. You cannot single out Gerrit as being the only one responsible. There is no written instruction in relation to this matter. Gerrit cannot be held responsible for this matter in isolation."
Mr Myburgh said that he contacted his union and arranged to meet Ms Drew before the meeting started at 9:00 am. He said that he did see Mr Donaldson dispose of the suspected prohibited substance and if he neglected to say that to Mr Seeds on 15 March 1996, it was an error on his part. Mr Myburgh said that when he admitted that he did not comply with the policy he said that that was because he hadn’t recorded the incident in the log book. He admitted that he did probably say "It was a small quantity, I did not think it was significant" because at the time he thought he had been doing the right thing. In hindsight he admitted that it was a stupid thing to do. Mr Myburgh said that he was confused about the policy being referred to because they were talking about a written policy and he had never seen a copy of that. Ms Drew requested a copy during the course of the interview. It appears that although both Mr Myburgh and Ms Drew said that there were no written instructions in relation to this matter, they were not shown a copy of the written policy at that interview. The notes taken by Mr Seeds do not show that Ms Drew requested a copy of the written policy. It appears that a copy of that policy was not provided to Ms Drew until after the decision to terminate Mr Myburgh was made.
After the meeting finished Mr Myburgh and Ms Drew were asked to return at 11:00 am when a final decision about Mr Myburgh was to be communicated to them.
THE TERMINATION DECISION
After Mr Myburgh and Ms Drew left the office Mr Seeds, Mr Treadgold and Ms Draydon discussed the matter. Although Mr Seeds estimates that the conversation lasted 15 to 20 minutes, Mr Treadgold appears to recollect that it was a considerably shorter conversation.
All three of the respondent’s witnesses agree that only the incident which is alleged to have occurred on 8 March 1996 was taken into account in deciding whether or not to terminate Mr Myburgh’s employment. It was felt by them that the seriousness of the incident outweighed any question of prior good conduct or service. Mr Seeds, Mr Treadgold and Ms Draydon did not look at Mr Myburgh’s personnel file. If they had done so, they would have noted not only a commendation which he had previously received, but they would have seen that a staff appraisal dated 14 June 1993 stated that the main weakness of Mr Myburgh was "comprehension of instructions which results in inappropriate action". The action recommended to eliminate the weakness was "continual training and specialised assistance". It appears that Mr Myburgh did not receive any training as a result of that recommendation. Ms Draydon admitted that she should have been aware of this comment and agreed that a proper investigation would have revealed it. Ms Draydon agreed that it was something that should have been taken into account when making the decision. Mr Seeds’ response in relation to this issue was that he assumed Mr Myburgh had had adequate training and that if Mr Myburgh had been concerned, as he was well paid, "he should have had the gumption to say that he needed further training". In conducting the investigation, the hospital did not interview Mr Donaldson prior to making the decision to terminate Mr Myburgh’s employment.
Mr Seeds, Ms Draydon and Mr Treadgold all decided to recommend to Mr Waters that Mr Myburgh be dismissed. It is clear from their evidence that they each believed that Mr Myburgh had given the marijuana to Mr Donaldson for Mr Donaldson’s personal use or to give to Mr Donaldson’s wife. This was not put to Mr Myburgh during the investigation. Mr Seeds said that he believed that Mr Donaldson and Mr Myburgh colluded to make the incident seem less after the employer found out about it. This was also not put to Mr Myburgh. Mr Seeds also appears to have placed a lot of weight on the fact that Mr Myburgh said that the substance was contained in alfoil whereas Mr Choo said that it was contained in a plastic bag. Mr Seeds, although he felt that Mr Myburgh was honest in relation to the rest of his answers, decided that Mr Myburgh was not being truthful in relation to that answer. He took this into account in deciding whether or not to recommend termination. Mr Seeds said that he was concerned about the discrepancy and went back to Mr Choo to check that the material had in fact been contained in a plastic bag before deciding whether or not to terminate Mr Myburgh. It was not put to Mr Myburgh that Mr Choo had a different recollection in this regard. It is clear that Mr Seeds, Mr Treadgold and Ms Draydon also considered that Mr Myburgh had not seen Mr Donaldson dispose of the substance. Mr Myburgh does not appear to have mentioned this during the interview but he was also never asked whether or not he saw Mr Donaldson dispose of the substance. All three of the decision makers also took into account the contents of the memorandum of 14 March 1996, which was also not shown to Mr Myburgh. According to Mr Seeds, the main factor in his decision was that a suspected prohibited substance was given by Mr Myburgh to someone else when it had been given to Mr Myburgh in his capacity as security officer.
From Mr Treadgold’s evidence, it is clear that he had formed an impression of what had happened from his conversation with Mr Myburgh on the previous day. He felt that Mr Myburgh had admitted to him that he didn’t write the incident in the log book because he knew he had done the wrong thing in handing over the substance to Mr Donaldson. Mr Treadgold understood that Mr Myburgh was "trying to cover his tracks in not writing it down". He admitted that he took that view into the meeting on 15 March 1996. Mr Treadgold’s evidence was that the questions asked on the Friday were along the same lines as the questions he had asked the previous day and nothing said by Mr Myburgh on the Friday caused him to change his mind. Mr Treadgold didn’t recall that Mr Myburgh had said on the Friday morning that the conversation relating to giving the marijuana to Mr Donaldson’s wife was a joke. Mr Treadgold said that he put a lot of weight on Mr Myburgh saying that Steve Donaldson wanted the marijuana for his wife. Mr Treadgold also does not recall Mr Myburgh saying that he gave the substance to Mr Donaldson and told him to get rid of it. His impression was that he gave it to Mr Donaldson to take home. That was the basis upon which he decided to recommend terminating Mr Myburgh’s employment.
Ms Draydon also said that she understood Mr Myburgh gave the substance to Mr Donaldson for Mrs Donaldson’s consumption. Ms Draydon also said that there was nothing stated by Mr Myburgh on the Friday which contradicted what was said in the memorandum prepared by Mr Treadgold on the previous day. Ms Draydon said that it was in her head that Mr Myburgh had said on the Friday that Mr Donaldson had taken the drugs home.
After Mr Seeds, Mr Treadgold and Ms Draydon discussed the matter they decided to recommend to Mr Waters that Mr Myburgh be dismissed. They saw Mr Waters who confirmed that decision. Mr Myburgh was given a termination letter which indicated that he had committed misconduct in that he:
"1.knowingly gave to a hospital employee suspected prohibited substance that was given to you in your capacity as security officer;
2.that you failed to follow hospital policy in relation to the disposal of suspected prohibited substance;
3.that you failed to follow hospital policy in relation to completing an incident report in relation to the aforementioned incident."
THE CREDIBILITY OF THE WITNESSES
The respondent submits that Mr Myburgh's evidence in court, to the extent that it contradicts the records of interview taken on 14 and 15 March 1996, should be disbelieved.
Mr Myburgh's credibility was attacked by the respondent on a number of grounds. For example, both Mr Choo and Mr Steve Donaldson said that the substance was contained in a plastic bag whereas Mr Myburgh said that it was contained in alfoil. It was suggested that this was an attempt on the part of Mr Myburgh to downplay what had happened. I do not accept that part of the submission. There is nothing before me which would suggest that the quantity was anything other than a small amount of what was suspected to be marijuana. All of the respondent's witnesses agreed that Mr Myburgh appeared to be open and honest in the way in which he answered the questions. It is quite possible that Mr Myburgh is simply mistaken about the packaging of the substance as he had been involved in a prior incident. I do not consider that the discrepancy is in any way significant.
The respondent also points to a discrepancy between the evidence of Mr Myburgh and the evidence of Mr Simmonds in relation to the incident on 26 September 1995. I have already stated that, in view of the passage of time and the fact that Mr Myburgh has been involved in more than one incident connected with a suspected substance, the discrepancy is of no significance. Mr Myburgh's version of events as opposed to Mr Simmonds' version does not assist Mr Myburgh in any way in the present proceedings.
The respondent also points to what it says is a discrepancy between Mr Myburgh's evidence and Mr Donaldson's evidence in relation to whether or not Mr Myburgh had left the room at the time Mr Donaldson disposed of the substance. Mr Myburgh states that he was still in the room when Mr Donaldson threw it in the bin. Mr Donaldson says that he threw the substance in the bin. To that extent their evidence concurs. Although Mr Donaldson stated in his interview on 19 March that Mr Myburgh had left the room, upon cross-examination Mr Donaldson, who was the respondent's witness, admitted that he did not know if anybody was in the room and said that it was possible that Mr Myburgh was in the room when he threw the substance in the bin. In re-examination, Mr Donaldson said Mr Myburgh was walking out of the room and that Mr Donaldson had his back turned to him when he threw it in the bin. He said in re-examination that he did not know if Mr Myburgh was still there. In these circumstances, I do not consider that there is a real discrepancy between the evidence of Mr Myburgh and Mr Donaldson.
There were two things which caused me some concern in relation to Mr Myburgh. The first was that there is no record of his having stated during the interviews that he saw Mr Donaldson toss the substance into the bin. The fact that he saw Mr Donaldson throw it into the bin, however, is consistent with Mr Donaldson's statement that that is what he did. It is also consistent with Mr Myburgh's statement during the interview on 15 March that he told Mr Donaldson to get rid of it.
The other matter which concerned me was that Mr Treadgold and Mr Baker gained a clear impression on 14 March that Mr Myburgh had said to them that he had not recorded it in the security officer’s log book because he realised he had done the wrong thing. In view of the fact that Mr Treadgold and Mr Baker did not take any notes of that interview; that the memorandum was written up sometime after the interview; and that Mr Treadgold's recollected version of what happened on 15 March is quite different from what was recorded by Mr Seeds, I consider that what is contained in the memorandum of 14 March is unreliable. I accept Mr Myburgh's explanation that what he in fact said was, "I didn't record it. I know that I have done the wrong thing."
In his demeanour in the witness box, Mr Myburgh impressed me as an honest witness. This is consistent with the impression gained by Mr Seeds, Ms Draydon and Mr Treadgold that Mr Myburgh was trying to be open and honest in his answers to their questions. It is my firm view that a combination of circumstances led the hospital's managerial staff to misunderstand what had in fact happened on 8 March.
MR DONALDSON
Mr Donaldson was formally interviewed on Tuesday, 19 March 1996, some days after Mr Myburgh's employment had been terminated. Mr Donaldson's evidence was that once he became aware of Mr Myburgh’s termination, he couldn't believe what had happened. He had trouble remembering the incident as, at the time, he had felt it was so minor. Mr Donaldson said that when he was interviewed on 19 March he felt that it was "like a kangaroo court" and that the people interviewing him had already made up their minds before he came in. Mr Seeds and Ms Draydon both admitted that they did not believe Mr Donaldson when he said that he had thrown the substance in the bin. They felt that it contradicted what Mr Myburgh had said to them on 15 March. In fact, a careful reading of the record of interview with Mr Myburgh shows that it was not inconsistent with Mr Donaldson's statement.
As a result of this incident, Mr Seeds wrote to Mr Donaldson a letter which states in part that:
"Security officer G Myburgh is adamant that you intimated that you wanted the suspected prohibited substance for your wife's consumption and that you asked him for it on at least two occasions, the last occasion being whilst he was actually in the process of disposing of the suspected prohibited substance. The hospital, on the balance of probabilities, believes that security officer Myburgh's account of the incident is a true and more accurate account of what actually occurred in the emergency department during the night shift of Friday 8 March 1996. That being the case, the hospital then wishes to formally bring to your attention that you knowingly took possession of a suspected prohibited substance and that to be in possession of such a substance is an illegal act and subject to criminal proceedings. The hospital cannot and will not condone this type of conduct on its premises. If the hospital becomes aware of this conduct occurring again your contract of service with the hospital will be reviewed."
During cross-examination Ms Draydon admitted that the hospital had no evidence to contradict Mr Donaldson's version of events. In these circumstances, although I have no power to make a formal order in relation to this letter, I consider it totally inappropriate that a letter containing those allegations remains on Mr Donaldson's personnel file.
WAS THERE A VALID REASON FOR THE TERMINATION?
It was submitted on behalf of the respondent that the combined effect of the authorities is that a valid reason for termination within the meaning of section 170DE(1) means a sound, defensible or well founded reason; that the reason must be genuine and that termination need not be the only logical response to what happened. I agree with that submission.
The hospital's witnesses all stressed that in cases of this nature, they look at all the circumstances of the case.
The first reason given by the hospital for the termination of Mr Myburgh is that he knowingly gave to a hospital employee a suspected prohibited substance that was given to him in his capacity as a security officer. I have already indicated that I accept the evidence given by Mr Myburgh and Mr Donaldson that the substance was not "given" to Mr Donaldson but merely handed to him to have a look at and to dispose of. It is my view that the hospital totally misunderstood what happened on the evening of 8 March 1996. Ms Draydon admitted that the investigation carried out by the hospital was deficient. In my view, that was a proper admission to make. The circumstances surrounding the incident were far more innocent than the hospital's managerial staff believed them to be.
The second reason given for termination is that Mr Myburgh failed to follow hospital policy in relation to the disposal of suspected prohibited substances. The respondent's witnesses, and in particular Ms Draydon and Mr Treadgold, said that the hospital policy they referred to was the written memorandum. However, each of the decision-makers knew by the time they made the decision to terminate Mr Myburgh that there were two contradictory policies. Even though Mr Myburgh and Ms Drew both said during the interview on 15 March that they had not seen a written policy, nobody from the hospital took this up and asked them questions about it.
It is my view that the hospital employees, in being subject to two totally contradictory policies on the disposal of drugs, one of which was propagated by hearsay, were put in a very difficult situation. The hospital's witnesses all said that if Mr Myburgh had followed either policy, he would not have been dismissed. It is my view that it is simply not good enough for the hospital to say this. Mr Myburgh's understanding of the "informal policy" was quite different from Mr Baker's understanding of that "policy". No attempt was made to find out what Mr Myburgh's understanding of the policy was. The hospital staff simply accepted Mr Myburgh's statement that he was aware of the policy and did not go into it further. Mr Myburgh’s admission that he breached the policy related only to failing to write the incident in the log book. It is my view that to dismiss Mr Myburgh for failing to follow hospital policy in this case is not a valid reason in all the circumstances.
The third reason given for terminating Mr Myburgh's employment was that he failed to follow hospital policy in relation to completing an incident report regarding the incident. The weight of the evidence is that the hospital has never required its security officers to complete an incident report relating to the disposal of suspected prohibited substances in situations in which the police have not been called. Mr Myburgh had been involved in a previous incident in which an incident report was not completed. Although I accept the hospital's position that Mr Myburgh should have noted the incident in the log book, Mr Myburgh himself has acknowledged his mistake in not doing so. It was an oversight. Mr Myburgh was reinforced in his belief that the hospital did not treat the disposal of small amounts of marijuana as major incidents by what had happened in relation to the September incident in which Mr Myburgh was involved.
Since the matter was brought to his attention, Mr Myburgh has at all times admitted that he should have noted the incident in the security log book. His failure to do so, however, does not in my view constitute a valid reason for termination.
In view of all of these circumstances, I do not consider that the hospital has discharged its onus of proving that there was a valid reason for the termination.
WAS THE TERMINATION HARSH, UNJUST OR UNREASONABLE?
If I am wrong about the conclusion that there was no valid reason for the termination, it remains to be decided whether or not the termination was, in all the circumstances, harsh, unjust or unreasonable. Although Mr Myburgh acknowledges in retrospect that he erred in his actions on the evening in question, my view is that if one accepts his version of events, to terminate his employment in those circumstances is harsh, unjust or unreasonable. Although I accept that the hospital's staff were not acting maliciously when they made the termination decision, my view is that they should have investigated the matter more thoroughly. If they had done so, they would have discovered not only Mr Myburgh's innocent explanation of the incident but also realised the grave deficiency in hospital policy in relation to the disposal of suspected prohibited substances and the way it was interpreted by different employees. In my view, Mr Myburgh was entitled to assume that the hospital did not consider the disposal of minor quantities of marijuana as anything serious. The matter would have been different, of course, if Mr Myburgh had in fact given the marijuana to another staff member for his or her own consumption. That is not what happened in this case.
I was referred to a number of authorities in relation to misconduct and summary dismissal. I have not set out those authorities, in view of my finding that there was a misunderstanding as to what in fact happened on 8 March 1996. In view of those findings, it could not be said that Mr Myburgh was in any way guilty of misconduct. For similar reasons, I have not set out in detail the relevant provisions of the award because it is my view that because of my findings of fact the award provisions in relation to the dismissal are irrelevant.
It is my view that the respondent did not carry out a proper investigation of the matter and the resulting termination of Mr Myburgh's employment was harsh, unjust or unreasonable.
REINSTATEMENT
The primary remedy for breaches of the relevant provisions of the Industrial Relations Act is intended to be reinstatement. Under section 170EE it is only where reinstatement is considered to be impracticable that compensation may be ordered in its place. Ms Draydon, Mr Treadgold and Mr Seeds all gave evidence that they viewed Mr Myburgh's actions as constituting a serious breach of trust. Their evidence was that in view of what had happened, they did not consider that Mr Myburgh could be trusted to carry out his duties properly if he was to be reinstated. I have already indicated that in my view the respondent's witnesses misunderstood what really happened on 8 March 1996. It is my view that Mr Myburgh did not breach the trust of his employer in acting as he did on that evening. The actions of Mr Myburgh occurred due to a combination of circumstances, the blame for which can in many respects be laid at the foot of the employer. Mr Myburgh's omission to fill in the log book, although unwise, does not in my view constitute a serious breach of trust on his part. In these circumstances, I do not consider that it is impracticable to order reinstatement.
The Court orders and declares :
The respondent breached the provisions of section 170DE(1) and section 170DE(2) in terminating Mr Myburgh's employment.
The respondent reinstate Mr Myburgh by reappointing him to the position in which he was employed immediately before the termination, within 7 days of the date of this order.
The respondent pay to Mr Myburgh the remuneration lost by him because of the termination.
Unless the parties agree the amount of the remuneration lost by Mr Myburgh and file relevant consent orders by 3 September 1996, the matter be set down for further submissions in relation to the amount of remuneration lost at 9:30 am on Thursday, 5 September 1996.
I certify that this and the preceding thirty-five (35) pages
are a true copy of the reasons for decision of
Judicial Registrar Boon.
Associate:
Date:
APPEARANCES
Representative for the applicant: Mr M Keogh
Hospital Salaried Officers Association of Western
Australia
Counsel for the respondent: Ms C Paterson
Solicitors for the respondent: Crown Solicitor for the State of
Western Australia
Dates of Hearing: 29, 30, 31 July and 2 August 1996
Date of Judgment: 14 August 1996
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