Robinson v Northern Sydney Area Health Service
[1997] IRCA 220
•30 June 1997
DECISION NO:220/97
CATCHWORDS
INDUSTRIAL LAW - Termination of Employment - summary termination of employee for allegedly striking a psychiatric patient - valid reason - standard of proof - reinstatement - compensation.
WORKPLACE RELATIONS ACT 1996 (Sometime Industrial Relations Act 1988) Section 170 DE, EDA, EE.
Briginshaw v Briginshaw (1938) 60 CLR 336
Elvidge v Burswood Resort Management Limited, (unreported), Industrial Relations Court of Australia, Ritter JR, 16 December, 1996.
Gibson v Bosmac Pty Limited (1995) 60 IR (1)
Kerr v Jaroma Pty Limited, (unreported) Industrial Relations Court of Australia, Marshall J, 7 October 1996.
Lowe & AMFEU V ACL Bearing Company, 173/94, 15 January, 1995, (unreported).
Nettlefold v Kym Smoker Pty Limited, 1996, 69 IR 370.
Sangwin v Imogen, (unreported) Industrial Relations Court of Australia, 8 March, 1996.
Selvachandran v Petron Plastics Pty Limited, (1996) 62 IR 371.
Thomas v Ralph Lynch T/as Bellingen Grocery, (unreported), Industrial Relations Court of Australia, Wilcox CJ, 20 December, 1996.
Victoria v Commonwealth
Westen v Union Des Assurances De Paris, (unreported), Industrial Relations Court of Australia, Madgwick J, 17 December, 1996.
Yew v ACI Glass Packaging Pty Limited, (unreported), Industrial Relations Court of Australia, Wilcox CJ, 11 December, 1996.
EON ROBINSON V NORTHERN SYDNEY AREA HEALTH SERVICE
No. NI 1324 of 1996
COURT: LOCKE JR
PLACE: SYDNEY
DATE: 30 June, 1997
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
NI 1324 of 1996
BETWEEN:
EON KEITH ROBINSON
Applicant
AND
NORTHERN AREA HEALTH SERVICES
Respondent
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The respondent reinstate Eon Robinson by reappointing him forthwith to the position in which he was engaged immediately before the termination of his employment on 26 February, 1996 or appointing him to another position on terms and conditions no less favourable than those on which he was then employed.
The respondent to pay Eon Robinson the remuneration lost by him because of the termination within 21 days.
Respondent take such steps as may be necessary to maintain the continuity of Eon Robinson employment for all purposes.
Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRY
No. NI 1324 of 1996
BETWEEN:
EON KEITH ROBINSON
Applicant
AND:
NORTHERN AREA HEALTH SERVICE
Respondent
REASONS FOR DECISION
This is an application under Part VIA division 3 of the Workplace Relations Act, 1996 (the Act). It was brought under the sometime Industrial Relations Act 1988. Shortly, after the evidence was taken in the matter, the High Court of Australia handed down its decision in State of Victoria v Commonwealth of Australia (1996) 138 ALR 129. The effect of the judgment in that case, so far as the present application is concerned, is that section 170DE (2) of the former Act was declared not to have any constitutional underpinning and was invalid. Thus a consideration as to whether the termination was harsh, unjust or unreasonable did not fall to be considered.
Having worked as a nurse in psychiatric establishments for twenty one years (including a stint as the Vice President of his professional association), the applicant was summarily dismissed on 26th February, 1996. The reason for his
dismissal being an affirmative finding in respect of the allegation set out in exhibit K which reads as follows:
6 December 1995
At approximately 8:00 pm in Ward 14, you were attending to patient in “W.H.”, at which time you were observed to make contact with the right cheek of the patient, by your fist.
It is alleged that you physically assaulted patient “W.H.” by a blow to the right cheek.
Arrangements will be made for a formal interview to be conducted, as soon as possible, in consultation with the NSWNA.
Giving evidence the respondent’s executive director, Mr Frank Bazic (he being one of the decision makers) said there was but one reason for the termination of the applicant’s employment and that was the allegation set out above.
Whilst the applicant never contended the injury to “W.H.”(Mr Hudson) was not caused by a punch, he has consistently denied he was the occasioner of the blow and thus of the resultant injury.
The respondent is a major public sector employer, with over four thousand nurses working for it at it’s five separate psychiatric facilities within the northern area of Sydney. Until about September of 1995, the respondent conducted the Gladesville and Macquarie Hospitals as separate units. At that time there was an amalgamation of the two which necessitated the transfer of staff from Gladesville to Macquarie at Ryde. It was to be common ground that this engendered resentment on the part of the servient hospital.
Mr Newall of Counsel submitted on the respondent’s behalf that:-
“.......in order that a termination be for a valid reason.....the court ultimately holds that the act for which the employee was terminated did occur. The proper focus is not the issue whether the incident giving rise to the termination is later able to be proven to the Court to have occurred (sic). The proper focus is on the reason which the employer had, at the time of termination, for terminating the employment”
Counsel then went on to cite that part of the judgment of von Doussa J in Sangwin v Imogen (unreported, Industrial Relations Court of Australia, 8 March 1996) which held that if after sufficient inquiry, the employer honestly believed on reasonable grounds that the allegation was correct, the employer would be in dereliction of his duty to those in care if the employee were allowed to return to duty.
As Sangwin (supra) involved a circumstance of theft, it is thought that this reasoning was but obiter dicta. However, it has been followed by both Judges and Judicial Registers of this Court.
This case was decided before the High Court of Australia handed down its decision in Victoria v Commonwealth (supra) accordingly, when considering what might justify termination, His Honour Justice von Doussa dealt with what was a valid reason first and went on to say that such a valid reason might nevertheless be harsh, unjust and unreasonable within the meaning of section 170DE (2) as it then applied. In arriving at the decision that there was no valid reason in the case before him, Justice von Doussa first found on the evidence there was no substance to the allegation of theft and then decided that the level of investigation conducted was deficient before the employer in that case made its decision to dismiss the employee.
He also found that the dismissal was disproportionate to the gravity of the alleged offence, this finding being consistent with the dismissal being harsh, unjust or unreasonable .
Following this High Court decision several judges of the Industrial Relations Court of Australia have held that the phrase “valid reason is one that must be justified on an objective basis and must be such so as to ensure both parties to the employment contract are recipients of a “fair go” - Nettlefold v Kym Smoker Pty Ltd (1996 69 IR 370). Kerr v Jaroma Pty Ltd (unreported) Industrial Relations Court of Australia, Marshall J, 7 October, 1996. Thomas v Ralph Lynch T/as Bellingen Grocery (unreported) Industrial Relations Court of Australia Wilcox CJ 20 December, 1996 and Westen v Union Des Assurances De Paris (unreported) Industrial Relations Court of Australia, Madgwick J, 17 December, 1996.
In his decision in Yew v ACI Glass Packaging Pty Limited (unreported, Industrial Relations Court of Australia, Wilcox CJ, 11 December 1996) the Chief Justice Wilcox makes the following observation:
“...The effect of s 170DE(1) is to make unlawful a termination of employment effected without a valid reason. If the termination comes before the Court, it is the duty of the Court to determine for itself whether, upon the balance of probabilities, there was a valid reason for the termination. It must do this by reference to the evidence. The Court is not concerned with the question whether, upon the information available to the employer, the conclusion reached by the employer was, or was not, a reasonable one. I agree that the Court “does not sit as an appeal” from the employer’s decision; but only because the reference to an appeal implies that the Court is concerned to examine the employer’s decision-making process. It is not. It is concerned to ascertain whether there was a valid reason for the conclusion that the employee’s employment should be terminated. The Court does this for itself, and on the basis of the evidence of the primary facts placed before it.”
In my view the appropriate approach to take to the decision in Sangwin’s case is that His Honour Justice von Doussa was, as the other Judges of the Industrial Relations Court of Australia have done before and since, attempting to interpret the legislative provisions in a practical and common sense way to ensure a fair outcome for both the employer and the employee (see, in particular, Westen’s case and Gibson v Bosmac Pty Ltd (1995) 60 IR 1).
Notwithstanding the approach taken by Justice von Doussa, I am, nonetheless of the view that, having regard to the numerous authorities in the Industrial Relations Court of Australia, a mistaken but honest belief of an employer who conducts a detailed investigation of allegations concerning the employee’s conduct or performance, is not an appropriate basis for determining that the employer has discharged the burden of proof it carries pursuant to section 170 EDA (1) of the Act (see Elvidge v Burswood Resort Management Limited, (unreported, Industrial Relations Court of Australia, Ritter JR, 16 December 1996) for a detailed analysis of many of the authorities on this issue). This is because it is not the role of the Court to determine whether the employer has acted reasonably or to focus only on whether the decision to terminate is defensible from the employer’s point of view. Rather, in determining whether there was a valid reason for termination, the Court must determine whether objectively speaking there were facts which existed at the date of termination to substantiate the decision. If, on the balance of probabilities those facts were not present, then the termination must be viewed as being unfair in all the circumstances of the case.
Should I be in error in the manner I have distinguished Sangwin with later decisions of the Court, then as I perceive the submissions made by Mr Newall, he failed to appreciate the full thrust of the judgment of von Doussa J particularly in regard to the necessary steps in the deliberative process. By way of example, a failure to investigate the allegations fully and extensively would render nugatory any subjective belief as it would not be reasonable.
At page 31 of the report, this is how von Doussa J expressed this alternate measure:-
“Unless these steps have been taken a belief held by the employer will not have the quality which could constitute a belief a valid reason”.
Arguing from the respondent’s perspective that the relevant provisions of the Act are designed to operate in a commercial environment and are heterogeneous to those which relate to a hospital, Mr Newall submitted different tests ought apply, without really setting out with any particularity the nature of the considerations he envisages or any authority on the point. Whilst it must be acknowledged that an hospital has an absolute duty of care, which is non delegable, as well as being “special and” “more stringent”, that does not alter the considerations to be applied under Division III of Part VIA of the Act in relation whether there be a valid reason or not. In any case, if it were to be found that the respondent has not discharged the onus it bears to satisfy the Court that the conduct alleged was committed by act or omission, that is the end of the matter. The nature of a duty of care is only applicable in coming to a view as to gravity of the misconduct alleged and if it reaches that stage, the remedy. Paragraph 11 of the respondent’s written submissions tends to postulate that in determining whether a valid reason exists, the Court should be guided by the later provisions inserted into the act, charging:-
“If the Court considers it appropriate in all the circumstances of the case”
As I perceive the said emendation, it is deemed to operate in respect of sections 170DE (2) (now invalid) and 170EE. It was not intended to be read down so as to include section 170DE (1). To do so would be an act contrary to the legislature’s intention and to how the section has been judicially interpreted - see: Selvachandran v Petron Plastics Pty Limited (1996) 62 IR 371. Sangwin (supra) and other authorities already examined.
ONUS AND BURDEN OF PROOF
Section 170EDA (1) (a) provides the onus of proving that a valid reason exists for the dismissal rests on the employer.
The burden of proof is on the balance of probabilities. That is so even when the alleged offence is tainted with criminality or constitutes a breach of duty or obligation. Instantly, the applicant was accused of assaulting a patient. Nevertheless the standard of proof required to tilt the scales to the point of reasonable satisfaction in favour of the employer may vary according to the gravity of the fact to be proved. Mr Robinson had very serious allegations made against him, and grave consequences accrued to him; he lost his employment and has not been able to mitigate his loss because of the circumstances of his dismissal.
Thus in all the circumstances, the party bearing the onus of proof must adduce evidence of sufficient persuasiveness and cogency to prove its case to the satisfaction of the Court.
In this regard, it is necessary to bear in mind the cautionary words of the High Court in Briginshaw v Briginshaw [1938] 60 CLR 336 and in particular what was said by Dixon J (as he then was) at 362:-
“It is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the “reasonable satisfaction” of the tribunal. In such matters reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect references.”
Whilst the onus remains a civil one, what has become known as the “Briginshaw onus” requires proof of the allegations “on a very high balance of probabilities indeed” - as per Ryan JR in Lowe and AMFEU v ACL Bearing Company 173/94 15 January, 1995 (unreported).
THE FACTS
From what has already been narrated it can be seen that the applicant was a very experienced employee. He was registered as a psychiatric nurse in 1978 and completed his training in mental retardation nursing in 1986.
During his twenty one years at Gladesville he was not subject to any investigation for mistreatment of patients. Between September 1995 and December of that year, the applicant was never spoken to by management regarding any concerns it held or complaints made against him.
Upon his arrival at Macquarie, the applicant was allocated to work in Ward 14, which was a thirty five bed acute short stay psycho - geriatric ward. Patients were both male and female, suffering with dementia and/or mental illness. The age of patients ranged between 60 - 70 years. Upon completion of their stay, the patients would either return to their residences or a nursing home.
Patients in Ward 14 were divided into “A” and “B” groups. Included in the groups were those who were quiet and withdrawn even suicidal and those who existed in a state of confusion.
Many were resistive and aggressive. In some instances staff and other patients were assaulted by them. Routines were interrupted by recalcitrating against nursing staff. Treatment of these persons included ECT and restraint. The latter a modern equivalent of the straightjacket, ameliorated, only by the arms being free.
Nurses were rostered to work in several shifts as follows:
“A” shift 9.00 AM - 3.30 P.M.
“B” shift 2.30 P.M - 11.00 P.M
“C” shift 10.30 P.M - 7.00 A.M
“D” shift 8.15 P.M - 5.00 P.M
“E” shift 12.30 P.M - 9.00 P.M
Evidence was taken that the applicant worked around the clock, but the particular relevance of the roster will become clear anon.
Those allocated to groups I and II worked in each shift with the assistance of a person described as a “rover”, whose principal duty was with group I and whose obligations included acting as medication nurse and assisting with showers.
Group I could be described as depressive, higher functioning and independent. Whilst patients in group II were nominated as being highly dependant, suffering dementia and highly aggressive. They were also incontinent.
Relevantly, several group II patients were specifically described, in evidence. They being Mr Messrs Minus, Kerr, Hudson and Graff plus ‘two’ females, Mrs Miles and Mrs Yue. Mr Hudson being the applicant’s alleged victim.
Nurse Sheree Porter was a registered nurse (non psychiatric) who commenced working at the end of October beginning of November, 1995.
Between 11 and 21 October, 1995 she alleged that she witnessed four incidents of impropriety involving the mistreatment of patients by the applicant. Evidence was given by one Salo Tennenbaum that he witnessed a separate and independent occurrence where it was alleged that the applicant treated a patient in a less than appropriate manner. Mr Tennenbaum was an enrolled nurse-a twelve months trained person, (somewhat similar to the nurses aid of old). Neither Ms Porter nor Mr Tennenbaum works on the Gladesville campus now.
It is not intended by further narrative to elaborate on the detail of those matters. However, they were investigated and a fact finding interview was conducted with the applicant who denied the charges. On 6 February, 1996 the investigators handed down their decision giving the applicant a final warning and ordering that his future conduct be monitored. He was further restricted in that he was only permitted to work the day shift. However, this latter condition was never implemented.
There were important differences as to what occurred in one incident between Ms Porter and Mr Tennenbaum, and all allegations were denied by the applicant. As generally, the applicant appeared to be a credible witness, the conflict may only be put down to a different modus operandi, in working with difficult patients. Ms Porter and Mr Tennenbaum were very inexperienced with patients of the Ward 14 category. The applicant was a very experienced and well respected nurse in this area.
The formers’ perception of what they alleged occurred could have been coloured by their lack of experience. None of the patients subject of the alleged abuse made any or were the subject of complaint by another. Nor did the patients receive any medical treatment as a result.
No independent evidence was called to resolve the conflict between the accounts of Ms Porter and Mr Tennerbaum on the one hand and the applicant on the other.
Other difficulties presented themselves so far as the Porter/Tennebaum allegations were concerned. It appears certain the respondent appreciated the unsatisfactory state of the evidence as it did not terminate the applicant’s employment. Mr Kimber submitted for this and other reasons I would not be satisfied that the applicant had a propensity to abuse patients. With this I concur. Quite apart from the unreliable accounts of the relevant events given by Ms Porter and to some extent by Mr Tennebaum (an inference was raised by him that the applicant pushed Mr Minus’ wheelchair into a wall) it would hardly seem possible a person with an unblemished record of twenty one years would become an abuser of persons under his care within a period of ten days in November 1995. Other nurses and doctors for that matter, worked with the applicant during the stated period and time, yet nobody was asked to corroborate the accusers. Those who did give evidence at the hearing who may have been present during the alleged events observed nothing untoward. The respondent called no evidence as to why Ms Porter and Mr Tennebaum assertions were preferred in circumstances where there was no corroborration. This might have been of assistance.
On 6th December, 1995, Mr William Hudson was being prepared for bed by the applicant in Ward 14. Nurse Adele Welker a registered nurse since 1979 and with some fifteen years of psychiatric nursing, came upon them. She alleged she saw Mr Robinson’s fist against the right cheek of the patient. She did not report the incident nor was any observation made by her of the applicant striking the patient. She was ignorant of whether an assault occurred or not. However, her observations raised suspicion and for the remainder of the shift she kept him under scrutiny, whilst making her “several rounds approximately every half hour”. She noticed no sign of injury during that shift and was not in a position to do so within the following few days as she was not at work.
About two and a half weeks later, Ms Welker was on duty when she saw
Ms Porter, who was not on duty, in ward 14. Approaching her Ms Welker asked what she was doing there. Indirectly she had been appraised, that Ms Porter was “not very happy with some people on the ward and was making a complaint”.
Initiating a conversation, Ms Welker gave Ms Porter some advice in respect of the plight in which she found herself to which Ms Porter allegedly replied
“Oh didn’t you know there was an incident form filled out against Bill Hudson, he had been injured”.
She then went on to inform her the incident occurred two and a half weeks previously and that the injury was to his right cheek. Mr Robinson’s name was raised by Ms Welker. Whereupon the two then proceeded to the nurses station and extracted some documents from patient Hudson’s file, these included an incident report. The roster book was then inspected as was the restraint book. The first confirmed the applicant had worked on the “B” shift that evening, the second revealed Mr Robinson had put Mr Hudson to bed. She, Ms Welker, then drew the conclusion that the injury had been occasioned by him. That was the last meeting she had with Sheree Porter, although there was a telephone conversation between the two in February (before the 16 of that month and after the decision was given in the Porter/Tennebaum allegations). This is how Ms Welker described what Ms Porter said.
“I have an appointment with Frank Bazic at 2.00 pm in the afternoon. I’ll give you a chance to see him first...I’ve got somebody with me.. I’m going to see Frank Bazic at 2.00 pm I’ll give you a chance to see him before me”.
Putting “two and two together” as she described it, Ms Welker decided to telephone Mr Bazic. During the ensuing conversation he told her he did not until then have knowledge of the person involved only that it was a senior staff member. She then explained to the respondent’s executive director “what happened on that night”. Some time later she had a meeting with Messrs Crumlin (the Director of Nursing), Dr Koshoff (the Director of Clinical Services) and Mr Bazic.
Under cross examination, Ms Welker conceded that if an aged person had been hit, one would expect to see some sign of injury soon thereafter “within a few hours”, yet she saw no signs at the time she completed her shift at 11.00 pm. The witness also concurred with Mr Kimber that patients in Ward 14 are very aggressive, fight with each other and are prone to self abuse.
On 15 February, 1996 Ms Porter met with Mr Bazic and mentioned the Robinson/Hudson interaction . This is how she described what Ms Welker told her:-
“Sheree Porter advised that during mid December she had a conversation with Adele Welker in which Adele Welker stated that she had seen Eon Robinson, RN hit a patient Bill Hudson in the face. Adele Welker had demonstrated to Sheree Porter the way that Eon Robinson had clenched his fist in punching the patient. Adele Welker had also stated that she confronted Eon Robinson at the time of the incident and said that “if you ever do that again, I will report you”. Adele Welker however stated to Sheree Porter that she did not report Eon Robinson.
A week after this conversation, Sheree Porter spoke to Adele Welker asking her if she had reported the alleged assault. The response from Adele Welker was that she had not reported the matter.”
This version differs in material particulars to that given by Ms Welker, and exhibits Ms Porter’s propensity to either telling untruths or hyperbole as I accept what was said by Ms Welker. She had no motive for relating to
Ms Porter a series of events not based on her observations. There is evidence to support a finding that Ms Porter was aggrieved by the result of the previous complaint and wished an affirmative finding in respect of what allegedly occurred on 6 December.
Giving evidence for the applicant Ms Lori Findlay confirmed that Ms Porter said to her that she would take the matter further if the applicant did not lose his registration in respect of the allegations made by her and Mr Tennebaum.
It must be noted that this allegation was made some twelve weeks after it supposedly happened. There was no evidentiary foundation that a blow to Mr Hudson’s cheek was administered by the applicant. He denied doing so and has been consistent in this contention.
The material available to the decision makers as to proof of the applicant’s act included certain documentary evidence contained in Mr Hudson’s progress notes, the incident book and the restraint book. Viva voce evidence was available from Ms Findlay, Dr Lisa Juckes, the respondent’s then medical registrar. Dr Lana Kossoff provided an opinion to them. This staff member was not called at the hearing.
By confidential memorandum dated 15 February, 1996, the applicant was given notice of the accusation made against him. He was directed to proceed to annual leave until further notice whilst the matter was investigated.
A copy of the statement of alleged incident was sent to the respondent at his home address on 19 February, 1996. A formal interview was conducted with him on 26 February, 1996 (exhibit “L”). The applicant totally denied the allegation and, indeed, was offended by it.
Upon hearing from the applicant, management upon his response, determined there was sufficient evidence of the fact that the applicant did assault
Mr Hudson. The applicant’s services were terminated forthwith. Written notice of the applicant’s termination was given the same day, (exhibit “M”).
Perusing Mr Hudson’s progress notes, one is presented with particulars of overt acts of aggression on his part. Several important matters emerge from those documents (part of exhibit 3). On 15th November he was violent, assaultative to staff and other residents. It was also noted his behaviour had been erratic and inappropriate and that he had been subject to chronic alcohol abuse over the previous ten years. The progressive notes of 23 November, Mr Hudson was very hostile and noisy at 22 hours sitting with his fists raised for most of the night, kicked at a staff member and hit him in the nose. At 2.30 pm on 26 November 1995, Mr Hudson is said to have swiped another person on the side of the face with an open hand. He was counselled over the issue, but just wore an inappropriate smile on his face. During the “A” shift on 6 December, 1995, the patient refused to walk to the dining room and he demanded a wheel chair. He banged his fist on the dining table and was incontinent (a frequent occurrence). Later on, it is recorded that he attempted to hit other patients with magazines. Subsequently he was restrained in bed, with arms free. It was during this shift that the applicant and Ms Welker were on duty. The “C” shift saw the patient talking loudly. He was resistant to application of a posey restraint for his own safety (3.00 am) (emphasis added). He also appeared to be hallucinating and slapping himself to stimulate a productive cough and became nosier until his bed was moved to the foyer, where he continued psychiatric raving and singing before retiring to sleep at 4.30 am.
This record presents a profile of the patient who the applicant was alleged to have assaulted on or about 8.00 pm on 6 December 1995. It also raises, other hypotheses as to how the patient sustained his injury, rather that the less exact one that led to the termination of the applicant’s employment.
Exhibit “P” is a copy of the respondent’s restraint book. It divulges that
Mr Hudson was restrained for his own safety by the applicant at 8.30 pm (half an hour later than Ms Welker gave evidence of seeing him so placed).
The patient remained so to 11.00 pm. A further reference to this record discloses that nurse AD Crowther states that the patient continued to be restrained until 7.00 am on 7 December 1995. No mention is made in this documentary evidence that any other member of staff noticed an injury to Mr Hudson’s right cheek in what remained of “B” shift or, during the entirety of the “C” shift. It was not until some six hours into the “A” shift on 7 December 1995 that nurse Findlay made her discovery. No notation appears in exhibit D whether a posey restraint was applied to the plaintiff at 3.00 am on that day. A better view of what was recorded, is that the patient was endeavouring to rid himself of this apparatus.
THE INVESTIGATION
Predictably, Mr Newall of Counsel submitted that the investigation into
Mr Robinson’s conduct was sufficient, He relied on various established authorities on the point, clearly which were not on point when married to the facts of this case. The length of the investigation (two weeks) was put forth as supporting the contention as to the adequacy of the procedure as well as the notification of such to the New South Wales Branch of the Nurse’s Association.
Clearly the respondent was placed in a difficult position by the late notification of the alleged assault. However, that was never part of the respondent’s case.
So far as the investigation was concerned it had no direct evidence before that the applicant was the perpetrator of the assault. Ms Welker merely deduced that was the case after she became aware of the incident report.
In the course of cross-examination, Mr Bazic made the following statements in relation to what was deficient in Ms Welker’s interrogation.
i) Failure to pose questions regarding what, if anything, she said to the applicant when she saw his fist against Mr Hudson’s face. Her recorded evidence hardly sits comfortably with her allegations:
ii) Mr Hudson’s reaction if any, to a blow to the face. Being aware of the type of person he presents as, it beggars belief that he accepted this with passivity and resignation.
iii) Failure to enquire if Ms Welker in the hours immediately after the accident, observed any injuries or marks consistent with a punch to the face. This was left to Mr Kimber when cross-examining her.
During the investigation, Mr Bazic directed Dr Kossoff to obtain a report from Dr Lisa Juckes, the sometime psychiatric register, who examined Mr Hudson on either 7 or 8 December 1995. Exhibit 17 is the brief report produced by
Dr Juckes on 3 August 1996. It is reproduced:-
RE: ASSESSMENT OF INJURIES TO INPATIENT
MR WILLIAM HUDSON
I was asked to assess Mr Hudson for facial bruising noted on 7 December 1995.
He had bruising and swelling over the right zygoma which was tender to palpation. Mr Hudson was unable to account for how he had been injured but offered that he may have “walked into a door”.
However, in my opinion, his injury was more consistent with a punch to the face.
This report could hardly have been helpful in a forensic exercise. It contained no particulars of the bruising or swelling over right zygoma. Dr Juckes, giving evidence at the hearing, said what she observed was consistent with a very early bruise and what she observed was entirely consistent with that noted by Nurse Findlay in the Ward report on 7 December. (exhibit “F”).
Mr Hudson’s own version of what had caused the injury was completely overlooked or disregarded, probably because of his medical condition. If should this be the case, it becomes the subject of some doubt as to the efficacy of the counselling he received in respect of his behaviour on the many occasions noted in the progress notes. Dr Juckes expressed a contemporaneous opinion in Mr Hudson’s notes (exhibit 3) that the cause of the injury might have been as a consequence of “an altercation with another patient”.
Reporting to Dr Kossoff, Dr Juckes made no mention of when she opined the injury could have occurred. This may have been difficult if she may not have examined the patient until 8 December. There was no hospital record of the doctor visiting the patient of that day. Assuming for the purpose of the exercise that the examination took place on 7 December, Dr Juckes agreed in cross examination that her opinion was a reconstruction based on her best view of the likelihood of when the assault took place and that the injury she saw on examination could have been sustained just a short time before she saw
Mr Hudson at 1.00 pm on 7 December. Doctor further agreed with
Mr Kimber’s proposition that a punch to the face of a seventy five year old man, would result in a soft tissue injury in respect of which signs of the trauma would be visible almost immediately, or “over the next 15, 20 minutes”.
Dr Juckes involvement in the matter did not include any further investigation or evaluation of how the injury was sustained.
Mr Bazic apparently requested Dr Kossoff to produce her expert opinion on matters medical. Although she had never examined the witness or even had the benefit of photographs, Dr Kossoff provided an oral opinion. The probative value of her evidence is even further reduced as she was not called at the hearing to have her evidence tested. It should have been obvious to the decision makers that the circumstances of the Doctor giving this opinion was far from helpful to them. Another deficiency in the report was the doctor did not rule out other likely causes of injury, including an altercation with a fellow inmate.
No interview was conducted with Ms Findlay during the investigative process, indicating there was a failure to appreciate the inconsistencies between the incident report (exhibit “E”) and the ward report (exhibit “F”). Ms Findlay was the author of both documents, yet the latter was confirmed by the evidence to be more accurate than the former. The inference I was asked to draw from this state of affairs is, that no attempt was made to check Mr Hudson’s records and other relevant documentation to ascertain if they contained any objective evidence of markings, swelling, redness, lacerations or bruising to Mr Hudson’s right eye at a time prior to 1.00 pm on 7 December 1996. Such an inference is so drawn.
In order to satisfy the evidentiary onus which is cast upon it, an employer must demonstrate, in dismissing an employee, it conducted as full and extensive investigation into all the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances.
Because of the lack of any direct evidence, it is thought it would not have been unreasonable for the respondent to have regard to the considerations above. Just as it would not illogical in the circumstances to make an effort to ascertain whether personnel on the “A” shift and “C” shifts on 6/7 December may have been able to provide information as to the cause or probable cause of
Mr Hudson’s injury. How it was that management especially without enquiring of Ms Welker on the subject, was able to discount the injuries being sustained later also causes doubts about the reasonable extent of the investigation. Should Mr Bazic ( and others) have taken these steps, the result could have been different. It would have suggested to them there that there was no proper or cogent basis for a finding that there was a connection between the alleged conduct of the applicant and the injuries seen by Nurse Findlay.
It is my view that the criteria set out and established in the decisions of this Court as to what constitutes a proper investigation have not been met by the respondent. The employer must look behind the event: Yew (supra).
Again no independent evidence resolves the conflict in the evidence of the applicant and the respondent even if it were considered capable of establishing the respondent had a valid reason for terminating the applicant’s employment on the Briginshaw standard of proof. The case mounted by the respondent was disadvantaged by inexact proof; indefinite testimony and indirect references. All matters which the High Court held in Briginshaw (supra) as not capable of producing the reasonable satisfaction required to terminate. The decision was not reasonably open to the employer if it had properly scrutinised the situation.
Any doubts I have about Ms Porter’s impartiality might be unjustified. However, I did find her an unsatisfactory witness. Some of the evidence she gave in cross examination appeared to me to be disingenuous. This was revealed by what she said and the manner in which she expressed it. I was left with the impression that she was not giving a fair and reliable account of matters generally. Her account of what Ms Welker told her was eminently deficient. I could not be entirely confident that she had a reliable independent recollection of events as was demonstrated in cross examination. During this exercise her evidence in chief was compromised. She certainly had an “axe to grind” because of the result of the first complaint.
Whilst the circumstances might excite some suspicion, there was no proper basis for the deduction of Ms Welker. Both she and Mr Bazic embarked upon what Mr Kimber described as “an entirely unreliable, inappropriate and naive exercise in forensic deduction”.
I do not wish to be unduly critical of Mr Bazic. He was faced with a difficult and unpleasant task. I have no doubt that he carried it out conscientiously although he does not seem to have sufficiently investigated the matter. For the purposes of this case the critical question is not sufficiency of Mr Bazic’s investigation or analysis but whether the evidence establishes Mr Robinson assaulted Mr Hudson as alleged. If as (I must) I have to determine the question whether the respondent has established the existence of a vaild reason for the termination by reference to the Mr Robinson’s, and not the respondent’s account of the incident, I must conclude the respondent has not discharged the onus it bears.
On the other hand, the applicant impressed me as a person who was doing his best to give a truthful account of the matters under review. In some instances his evidence was treated with some caution, although I have no reason to doubt what he said. No evidence of any substance was called by the respondent which reflected on the applicant’s credibility. In those matters of fact where the evidence given by the applicant and that given by the witnesses for the respondent conflict, I prefer the former.
Accordingly, I find that the termination of Mr Robinson’s employment contravened section 170DE (1) of the Act.
It would appear from the submissions made on behalf of the respondent that I would have to be entirely sure that Ms Welker and Mr Crumlin were quite wrong and that Mr Robinson did not punch Mr Hudson just as the Court would have to be entirely sure that not a single one of Ms Porter’s allegations has any substance whatsoever. The Court does not have to be entirely sure just reasonably satisfied.
Turning now to the question of relief. The applicant submitted that the Court should have no hesitation in reinstating Mr Robinson. This is rejected by the respondent on the basis that the applicant gave evidence that he would have difficulty in working with Ms Welker on the basis she had made unfounded allegations against him. Mr Newall then asked me in the absence of any evidence to draw an inference he would have a similar difficulty with his Director of Nursing, Mr Crumlin and the Deputy Director, Mr Spurr. I am not compelled by that invitation and draw no such inference. I am further asked by the respondent to take cognizance of the fact that Messrs Bazic, Crumlin and Spurr gave evidence that they had lost confidence in the applicant. As I have found that I am not satisfied on the evidence that Mr Robinson was guilty of the allegation, then this should remove the impediment confronting these gentlemen. In any case this is not the test. What the Court has to decide is whether reinstatement is impracticable.
The applicant worked for the employer on a full time and continuous basis for 21 years without any complaint about his handling of patients or, indeed, about any other aspect of his nursing practices. The uncontradicted evidence in this case is that he had a completely clean record prior to the November/December complaints.
Giving evidence, the applicant said he foresaw no difficulty in returning to Gladesville/Macquarie Hospital and working in any ward including, Ward 14. He does not, of course, make any specific demand about being reinstated to any particular hospital within the area let alone any exact ward.
The Director of Nursing from Gladesville/Macquarie Hospital, Chris Crumlin, made it abundantly clear to the Court that if the applicant were reinstated that he would accept the decision of the Court and, to the extent that the decision about the actual placement of the applicant be left to him, he would find a suitable position for the applicant comparable to the position he held prior to his unlawful termination. He also subscribed to the view, as put to him by the Court, that any problems associated with the applicant’s return to work (which Mr Crumlin anticipated might arise courtesy of the view of a few of the nurses at the hospital) could be “worked through”, as one would expect any group of professionals to do.
Because of evidence of resentment/animosity arising as a result of personnel being transferred from Gladesville Hospital to Macquarie Hospital, in such circumstances, there is a basis for the Court to infer that any level of resistance to the applicant’s return to Gladesville/Macquarie Hospital would have more to do with the difficulties created by the amalgamation of the two hospitals than with circumstances surrounding the termination of the applicant. This should have resolved ere this.
The respondent operates five separate psychiatric facilities within its area and there is no evidence, whatsoever, to support the view that the applicant could not be readily engaged as a registered nurse in any of the other psychiatric facilities (ie other than Gladesville/Macquarie Hospital).
Neither Sheree Porter nor Salo Tennenbaum work at Gladesville/Macquarie anymore (so there is no question of the applicant needing to deal with “his accusers”) and, of course, Ms Welker never accused the applicant of assaulting anybody nor did she give any evidence to the Court of anticipating any difficulties whatsoever in working again with the applicant.
Lori Findlay, a registered nurse from Gladesville/Macquarie, gave evidence to the Court that she had “no problems with working with the applicant in the past and would have no hesitation in working with him in the future” (see Exhibit D paragraph 11). That evidence was not challenged nor was it contradicted by any evidence from any other registered nurse who had worked with the applicant at Gladesville/Macquarie.
An inference was drawn from the fact that the respondent called no registered nurses from the ward to contradict Lori Findlay’s evidence or to otherwise provide any proper foundation for a conclusion that it would be impracticable for the applicant to be reinstated, that there stands no reasonable impediment to the applicant’s return to work with the respondent.
The Court is required to consider the question of reinstatement in all the circumstances of the particular case. Thus it is relevant to take into account when considering the appropriateness of an order for reinstatement, the effect
the termination and loss of his employment would have upon the applicant. There are very few opportunities for work in the the applicants area of expertise outside the public health system. Having been dismissed on the grounds of the serious misconduct at one establishment would not facilitate his engagement at another. It would be fatal. Much the same could be said about the employment of the applicant in private psychiatric establishments, if a reference were sought as is invaribly the case. Thus his life’s work would be to no avail. A draconian result for Mr Robinson after twenty one years of service. Giving evidence of this fact, Messrs Crumlin and Spurr said that the applicant would have very little or no chance of obtaining other employment in the public sector. Much time has transpired since February, 1996, enough to heal any antagonism or ruptures that occurred between those persons remaining at Gladesville, Macquarie and the applicant. These persons are of such standing and status within the work environment, I am confident they will work through any outstanding problems in a professional manner.
Since the termination of his employment, the applicant has made one formal attempt to obtain work in the public sector. His application was unsuccessful and he was not informed why this was so. It is my view that the applicant would have no chance of making a successful application to re-enter his chosen field of endeavour.
It was submitted by the respondent that the applicant has not mitigated his loss and should be, thus, denied a remedy. I do not share that view. Having made one attempt to do so, he realistically presumed that there were no employment prospects for him. In the meantime the applicant has been assiduously pursuing re-employment with the respondent on the basis there was no valid reason for his forced departure in the first place.
Already mention has been made to the Porter/Tennebaum allegations. I have indicated that any reliance on those assertions would be unsafe and unsatisfactory.
For this reason, I do not accept that these matters could form a basis for denying the applicant the redress he seeks. Therefore I propose to order that he be reinstated though not necessarily to Ward 14. It is but one section of the respondent’s establishments. Any other Ward in any of the other five campuses would be suitable to the applicant.
Part of the applicant’s application was that he be remunerated for loss of earnings since 26 February 1996. I propose to order that the applicant be so compensated and that he be treated as having no loss of seniority.
I certify that this and the preceding 28 pages
are a true copy of the reasons for decisions of
Judicial Registrar Locke as recorded in the transcript
and revised by the Judicial Registrar.
Associate: Dianna Fong
Date: 27 June 1997
APPEARANCES
Counsel for Applicant: Mr Kimber
Counsel for Respondent: R.L. Whyburn Solicitors
Counsel for Applicant: Mr Newall
Counsel for Respondent: Hunt & Hunt Solicitors
Dates of hearing: 5, 6, 7, 8, 9 August 1996
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