Walsh v Ambulance Victoria
[2013] FWCFB 6867
•18 SEPTEMBER 2013
[2013] FWCFB 6867
The attached document replaces the document previously issued with the above code on 18 September 2013.
The printing authority at the bottom of the document was missing, and has been added.
Emma Laurie-Rhodes
Associate to Vice President Watson
Dated 18 September 2013
[2013] FWCFB 6867 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Ambulance Victoria
(C2013/749)
VICE PRESIDENT WATSON | SYDNEY, 18 SEPTEMBER 2013 |
Appeal against decision [[2013] FWC 1999] of Commissioner Cribb at Melbourne on 29 April 2013 in matter number U2012/12308 - permission to appeal -public interest - appealable error - failure to attend to emergency - serious misconduct - opportunity to respond - whether termination harsh - Fair Work Act 2009 - ss. 400, 604.
Decision of Senior Deputy President Drake and Commissioner Johns
[1] We agree with and adopt the reasons for decision published by his Honour Vice President Watson regarding Commissioner Cribb’s characterisation of Mr Walsh’s conduct as misconduct. We would not disturb the decision of Commissioner Cribb in relation to that finding.
[2] However, we respectfully disagree with his Honour’s conclusions in respect of Commissioner Cribb’s consideration of the issue of harshness. As his Honour correctly observed “...the reasoning of the Commissioner is not detailed...” However, we then depart from his Honour’s opinion that, notwithstanding the lack of detail, the Commissioner’s reasoning “...is sufficiently clear”. Rather, we have concluded that Commissioner Cribb fell into error twice, and that on both occasions the error was of a House v King 1 nature.
[3] Firstly, we have concluded that the Commissioner failed to take into account a material consideration.
[4] The respondent’s policy, which deals with the issue of misconduct of the kind found against Mr Walsh, is entitled Service Improvement System, Employee Relations: Internal Investigation Policy. Under the heading Serious Misconduct, clause 4.2.2 Findings of the Internal Investigation into Serious Misconduct at (d) states:
“(d) If the allegations of serious misconduct are substantiated, the employee is to be advised in writing of this (refer to ER INV 02 Template - AV Internal Investigation - Investigation Letter - Outcome Substantiated). The employee’s relevant Manager(s) or their nominee and a representative of the Employee Relations team will meet with the employee to deliver the findings and provide an opportunity for the employee to respond. AV will determine the appropriate sanction and when doing this will take into account the employee response. Subject to this response it may be necessary to have a further meeting with the employee, and if required their nominated representative (refer to ER CD 01 Confirmation of Counselling Meeting). This may include a written warning, a demotion of role, relocation to another role or termination of employment. The employee may also be summarily dismissed (refer to PRO/PAC/002 Counselling & Disciplinary Procedure).”
(our emphasis)
[5] In its correspondence of 31 July 2012 Ambulance Victoria notified Mr Walsh as follows:
“------in respect of the allegations that on 14 August 2011 you failed to respond in an adequate and timely manner to a primary motor vehicle accident, AV does not accept your explanation regarding the response to this accident and maintains its position that these allegations are substantiated.
AV views this issue with the utmost seriousness. Given the circumstances of the primary motor vehicle accident, that a patient was trapped in his vehicle and was requiring assistance, and the clear requirement of paramedics in this situation to respond immediately, AV is of the view that your conduct on this occasion in delaying the HEMS 3 crew from responding until such time as your shift replacement arrived constitutes serious and wilful misconduct.
AV has considered the matters raised by you and your representative in mitigation of your actions, including that you had not had a meal, and that you were fatigued at the time.
AV notes you had not raised either of these two issues with the Duty Manager or the Flight Coordinator prior to receipt of the dispatch call.
AV has also considered United Voice’s assertion in its letter of 5 July 2012 that you were suffering from Post Traumatic Stress Disorder condition at the time of the incident, which was not diagnosed until a later date. We note this position conflicts with the medical report of Dr Asaid regarding the onset of this condition. Dr Asaid has reported and stated to AV that the condition was triggered by ‘the nature of his dismissal’.
Given all the matters raised, AV has determined that notwithstanding the mitigating factors you have raised, given the seriousness of the matter, your employment with AV will be terminated effective immediately.”
[6] We are satisfied that the mitigating factors responded to by Ambulance Victoria in this correspondence were the mitigating factors relied on by Mr Walsh in response to the allegation of serious and wilful misconduct. When questioned by this Full Bench, Counsel for Ambulance Victoria submitted that the mitigating factors submitted by Mr Walsh were submitted as to both the allegation of misconduct, and as to penalty. We reject this. We are satisfied that they were not submissions dealing with what outcome should arise if a finding of serious and wilful misconduct was determined by Ambulance Victoria.
[7] Ambulance Victoria responded to the submissions of Mr Walsh and then advised Mr Walsh of its determination that his conduct was serious and wilful misconduct. Ambulance Victoria, in the same correspondence, then moved immediately to a finding as to outcome without providing Mr Walsh with any opportunity to address the range of possible outcomes available under Ambulance Victoria's disciplinary policy. This separate opportunity is mandated by the policy at (d). It states that:
"------a representative of the Employee Relations team will meet with the employee to deliver the findings and provide an opportunity for the employee to respond."
(our emphasis)
[8] We are persuaded that the opportunity referred to is an opportunity to respond to the finding of serious misconduct and to make a submission as to which of the outcomes referred to in (d) should result. It is an established principle that an opportunity to respond must be genuine and implies an opportunity that might result in the employer making a decision other than termination of employment.
[9] Mr Holman gave evidence before Commissioner Cribb regarding his investigation. It is clear that he received the investigation report and feedback from other staff and “...... then really had to make a decision where to from there.” 2 He then made a decision regarding Mr Walsh’s termination of employment without further submissions. He did not consider issues such as length of service in relation to penalty. He did so when considering conduct. For him
“.... it was really all about what did he do”.3
[10] We are satisfied that no opportunity was provided to Mr Walsh to separately address outcome. This was a failure to give Mr Walsh the full benefit of the disciplinary policy applicable to his misconduct. We are satisfied that Commissioner Cribb did not consider the absence of that opportunity, and that the lack of an opportunity to respond as to penalty is an issue which could directly affect the Commissioner's consideration of whether or not the termination of Mr Walsh’s employment was harsh, unjust or unreasonable.
[11] We are satisfied that the Commissioner’s failure to do so was an error in the exercise of her discretion. Allowing Commissioner Cribb's decision to stand when there has not been any consideration by Ambulance Victoria of Mr Walsh’s submissions concerning an alternative to termination of employment, or a consideration by the Commissioner of that failure, would be a manifest injustice to Mr Walsh.
[12] Secondly, the Commissioner recounted the submissions of the parties concerning the Appellant’s length of service, unblemished record, age and chances of finding employment with the Respondent as the only employer of paramedics in Victoria. It is not apparent to us that the Commissioner gave sufficient consideration to those matters in determining that the termination was not harsh. Her consideration of those issues focused on whether or not the conduct occurred rather than harshness. Having regard to the decision of the majority of the Full Bench in Lindsay Douglas Lawrence v Coal & Allied Mining Services Pty Ltd (t/a Mt Thorley Operations Warkworth) 4if the Commissioner had given sufficient weight to the matters referred to above, it is difficult to understand (in the absence of the Commissioner having not set out her reasoning) how it was concluded that the dismissal of the Appellant was anything other than manifestly harsh.
[13] We consider that it is in the public interest to grant permission to appeal and we do so. We order that the application be referred to Commissioner Cribb for her further consideration.
SENIOR DEPUTY PRESIDENT
Decision of Vice President Watson
Introduction
[14] This decision concerns an application for permission to appeal made pursuant to s.604 of the Fair Work Act 2009 (the Act) by Mr Kelvin Walsh against a decision 5 made by Commissioner Cribb in relation to his application for an unfair dismissal remedy. The application was made against his former employer, Ambulance Victoria. Commissioner Cribb determined that Mr Walsh’s dismissal was not harsh, unjust or unreasonable and dismissed his application.
[15] The appeal was lodged on 20 May 2013. Directions were issued, and the matter was listed for hearing on 16 July 2013 in Melbourne. At the hearing, Dr P Sutton of United Voice represented Mr Walsh, and Mr R Millar, of counsel, appeared for Ambulance Victoria.
Background
[16] Prior to the termination of his employment, Mr Walsh was employed by Ambulance Victoria as an air paramedic. His employment was terminated following an alleged incident on 14 August 2011. On 14 August, Mr Walsh received a dispatch call at 6:11am from the Flight Co-ordinator following a motor vehicle accident. Mr Walsh was informed that there was a person unconscious and pale, who was trapped inside a vehicle. The air ambulance did not depart until 6:46am. There was a considerable amount of evidence and submissions concerning the events that occurred during that 35 minute time period.
[17] Ambulance Victoria alleged that Mr Walsh delayed the departure of the air ambulance so that his colleague, Mr Brereton, who was due to arrive and start on the next shift, would attend the accident instead of him. Mr Walsh denied the allegation, arguing that the reasons for the delay included the need to perform a changeover of the blood on board the air ambulance, difficulties with the data logger, fatigue and lack of meal breaks. Ultimately, following an investigation, Mr Walsh was dismissed for serious misconduct by letter dated 31 July 2012.
[18] In her decision, Commissioner Cribb found:
“[313] I have formed the view that it is most probable that Mr Walsh, for some unknown reason, did not want to go out and do the job. He “managed” the Flight Coordinator so that he was given the reluctant okay, with qualifications, to wait for Mr Brereton who was arriving in 10 minutes. Mr Walsh did not know, at that point in time, exactly when Mr Brereton would be arriving. There had been no prior agreement between them that Mr Brereton would come in earlier than the customary 20 to 30 minutes.
[314] Therefore, I am satisfied that there was a valid reason for Mr Walsh’s dismissal on the basis that Mr Walsh did not want to go out on the late job and that he delayed his departure so that Mr Brereton would arrive and go instead of him.
[315] If I am wrong and Mr Barkmeyer did instruct Mr Walsh to change the blood over in the morning at the end of his shift and the blood changeover genuinely took until 6:30am/6:35am or 6:35 am/6:40am, I would still hold the view that there was a valid reason for Mr Walsh’s dismissal. I accept Ambulance Victoria’s statement that changing the blood over should never delay the departure of HEMS 3 to a priority case. Both Mr Barkmeyer and Mr de Wit stated that, under no circumstances, is a MICA Flight Paramedic to delay a response to a primary case in order to change the blood. Mr de Wit indicated that there were other strategies in place to deal with a situation where the blood became unusable.
...
[330] In all of the circumstances of this matter and, having taken account of each of the factors in section 387 of the Act, I determine that Mr Walsh’s dismissal was not harsh, unjust or unreasonable. On the one hand, there was a valid reason for Mr Walsh’s dismissal which was that he had delayed his preparations for departure so that the oncoming shift would arrive and would go on the job instead of him. On the other hand, even given Mr Walsh’s medical circumstances, Ambulance Victoria should have provided Mr Walsh with details regarding the allegations and the findings of the investigation.”
Grounds of appeal
[19] Mr Walsh appeals the decision of Commissioner Cribb on multiple grounds. Mr Walsh says that the Commissioner erred in dismissing his application on the basis that he was not unfairly dismissed. Mr Walsh also appeals the implied finding of the Commissioner that the applicant’s conduct amounted to serious misconduct for the following reasons:
• She failed to address s.1.07 of the Fair Work Regulations 2009;
• She failed to address the common law tests of serious misconduct;
• She erred in not taking into account her own finding that the Flight Co-ordinator reluctantly acquiesced to the appellant’s request to wait;
• She made a significant error of fact in failing to account for the instructions given to the appellant by the Flight Co-ordinator, contained in the transcript of their conversation put before her by the parties, and therefore failed to find whether the appellant had followed those instructions or not;
• She made a significant error of fact by failing to find that the Flight Co-ordinator could have instructed the appellant to leave immediately and the Flight Co-ordinator failed to do so;
• She failed to find that the conduct of the appellant was a performance issue and therefore fell into error when applying s.387(e) of the Act.
[20] Mr Walsh also appeals the Commissioner’s findings regarding whether the dismissal was harsh, unjust or unreasonable on the following grounds:
• She incorrectly applied the test for harshness;
• She made a significant error of fact when overlooking that a recent case of similar behaviour by an employee of Ambulance Victoria had not resulted in the dismissal of that employee;
• She gave insufficient weight to the appellant’s length of service, unblemished record, age, and chances of finding alternative employment when Ambulance Victoria is the only employer of paramedics in Victoria;
• She erred in finding that the punishment was proportionate to the gravity of the alleged offence.
[21] Mr Walsh seeks a finding that his dismissal was harsh, unjust or unreasonable and an order for reinstatement to his former position. Mr Walsh also seeks compensation for lost wages and an order for the maintenance of his continuity of employment with Ambulance Victoria.
[22] It is important to note that the decision under appeal is essentially a discretionary decision and the principles applying to appeals against discretionary decisions must be applied. It is not the task of this Full Bench to re-determine the matters considered by the Commissioner or substitute its view on the questions determined by the Commissioner. In order for an appeal to succeed, an error in the exercise of the discretion must be demonstrated. The standard principles adopted for such matters are commonly expressed in the decision in House v The King 6 as follows:
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
Legislation
[23] Section 604 of the Act deals with appeals. The requirements for appeals are modified with respect to unfair dismissal matters by section 400 of the Act which provides:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
[24] The test for determining the public interest has been described as follows 7:
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.”
Permission to appeal
[25] In this matter the grounds for seeking permission to appeal are closely aligned to the substance of the grounds for appeal. I propose to consider those grounds in detail.
The consideration of serious misconduct
[26] It is well established that a summary termination for serious misconduct does not alter the approach to be taken to determining whether a valid reason exists for the termination. In Annetta v Ansett Australia 8(Annetta) a Full Bench said:
“[9] It was submitted on behalf of the appellant that in cases of summary dismissal there can be no valid reason for the termination within the terms of s.170CG(3)(a) unless the employee is guilty of conduct justifying summary dismissal at common law. In this respect it was further submitted that the common law requirement goes beyond wilful disobedience in that the conduct must amount to a refusal to be bound by the terms of the contract: Adami v Maison de Luxe Limited (1924) 35 CLR 143. Mr Langmead submitted that the appellant's conduct on 17 February, 1998 could not be so regarded because there was no instruction given to the appellant, only a request, and the appellant provided an adequate explanation for not doing the work he was asked to do.
[10] We think there are a number of answers to this submission. It is generally accepted that the term "valid reason" should be construed to mean "sound, defensible or well-founded": Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373. Although that case concerned legislation which has now been repealed it is still regarded as authoritative. To limit the meaning of the term "valid reason" by importing a test amounting to repudiation of the contract at common law is unwarranted and impermissible. Secondly 170CG(3)(a) focuses on the reason for termination. The appellant's construction would result in an arbitrary application of the section in some circumstances. Take a case where an employee is guilty of conduct which does not amount to misconduct justifying summary termination. If the employer terminates the employment on notice there would be a valid reason for doing so. If the employer terminates the employment summarily there would not be a valid reason for doing so. The validity of the reason cannot be made to depend on whether or not the termination was on notice. Thirdly, however, we are not convinced that if the common law test were applied it would make any difference in this case. The Senior Deputy President found that the appellant had refused to do the duties he was requested to do and that the explanation he gave for the refusals was unreasonable. We think these findings were clearly open to her. The appellant did not say during the enquiry into his conduct that he was not given a direction. Furthermore he continued to maintain his right to refuse to do work which was not his and to refuse to rectify work which somebody else had performed unsatisfactorily. The appellant took this position in an interview more than a week after the day of the refusals. This amounts to the unilateral inclusion of a new term in the employment contract and by necessity amounts to a refusal to observe the fundamental requirement of any contract of service - to be ready, willing and available to carry out the lawful directions of the employer. In the circumstances we reject the submission that the Senior Deputy President should have found that there was no valid reason for the termination of the appellant's employment.”
[27] The decision in Annetta was approved by another Full Bench in Jupiters Limited trading as Conrad Jupiters Gold Coast v G Atfield where the Full Bench expressed the matter in the following terms: 9
“[19] Secondly, on one reading of the decision, the reasoning of the Commissioner appears to have imposed an obligation on the employer to prove “serious misconduct” sufficient to justify summary dismissal at common law as a prerequisite to establishing a valid reason within the meaning of s.170CG(3)(a). Such an approach, if adopted, would be incorrect. Proof of misconduct justifying summary dismissal at common law is a sufficient but not a necessary condition to establishing a valid reason within the meaning of s.170CG(3)(a). Nevertheless, since for the reasons we have given we have concluded that the termination of Mr Atfield’s employment was harsh, it is not necessary to take that matter further.”
(references omitted)
[28] The proposition was adopted and applied in other Full Bench decisions in Garry Robin v Worley ABB, 10 Abdel-Karim Osman v Toyota Motor Corporation Australia Ltd11 (Osman) and Thomas Brian Potter v WorkCover Corporation.12 and RMIT v Asher13
. Those authorities are not inconsistent with the decision of Justice Jessup in Shanahan v Australian Industrial Relations Commission (No 2) where His Honour said: 14
“[75] There is no doubt but that, if wilfulness in the Laws sense was an essential ingredient of the university’s “valid reason” for terminating the employment of the applicant, the Full Bench would have constructively failed to exercise jurisdiction if, assuming that the matter had been properly put to it, it omitted to address that question. There is also no doubt but that, on the facts of this case, the majority of the Full Bench made no reference to Laws or to the principle for which it stands. I consider, however, that there is no substance in the submissions made on behalf of the applicant in this regard, for reasons which follow.
[76] First, neither the Commission at first instance nor the Full Bench on appeal was concerned with the question whether, as a matter of contract, the university was entitled lawfully to dismiss the applicant summarily. I accept, of course, that an answer to that question would often be (and in the present case might well have been) an ingredient in the series of propositions which together provide an answer to the question with which the Full Bench was concerned, namely, whether the university had a “valid reason” for the termination. But the question whether the applicant’s conduct was repudiatory was not, as such, the question which the Full Bench was required to address. It was not an essential statutory or legal ingredient, such that failure to take it into account would constitute a constructive failure to exercise jurisdiction.”
[29] The Commissioner made no express finding that Mr Walsh was guilty of serious misconduct. She asked herself the correct question of whether there was a valid reason for termination as one of the factors to be taken into account to determine whether the termination was harsh, unjust or unreasonable. She considered the factor of warnings to be irrelevant as the termination was on the basis of serious misconduct. In my view her approach in this regard is consistent with the above authorities and cannot be criticised. Insofar as the grounds of appeal challenge the approach of the Commissioner, they are contrary to the Full Bench authorities and should be dismissed.
[30] I nevertheless accept that in a summary dismissal case, the determination of whether the conduct that constituted the reason for the dismissal justified summary termination is a relevant consideration to be taken into account in determining whether the termination was harsh, unjust or unreasonable. It bears directly on whether termination of employment was the appropriate sanction for the conduct in question. The grounds of appeal essentially raise this issue, because they say that if the conduct was not serious misconduct, then termination should not have been the result of the disciplinary enquiry.
[31] The Commissioner clearly considered the conduct in question and its seriousness when determining whether the termination was harsh, unjust or unreasonable. Mr Walsh’s primary case was that his conduct was not inappropriate at all and that there was no valid reason for dismissal. Notions of summary dismissal were not put in the proceedings before the Commissioner with the same emphasis that they were put on appeal. However as I have mentioned, the issue was in the clear contemplation of the parties and the Commissioner and it was clearly a relevant factor going to the proportionality of the disciplinary response.
[32] Dr Sutton spent some time in his submissions in the appeal dealing with the alternative formulations of the test for summary dismissal at common law and in the regulations. As the definition in the regulations is relevant to provisions of the Act and regulations that deal with the notion of summary dismissal, and the unfair dismissal provisions do not expressly deal with summary dismissal, I do not believe that the definition in the regulations has direct relevance. Nevertheless the tests are not dissimilar, as recently explained by Judge Lucev of the Federal Circuit Court. He said 15:
“97. To define “serious misconduct” by reference to its “ordinary meaning” as is done in reg.1.07(1) of Div.2 of Part 1-2 of Ch.1 of the FW Regulations is not of particular assistance in determining whether or not the conduct for which the employee has been terminated is serious misconduct disentitling an employee to the minimum period of notice prescribed under the NES. That is because, both historically and in more modern times, courts have been wary of defining the extent of “misconduct” which justifies dismissal, and where they have attempted the task have made it clear that the misconduct must be sufficiently “serious” as to warrant non-continuation of the contract between employer and employee. Thus, the “ordinary meaning” definition of “serious misconduct” adds little, if anything, to the content of the meaning of “serious misconduct”.
98. In Clouston & Co Limited v Corry it was observed that there “is no fixed rule of law defining the degree of misconduct which would justify dismissal”.
99. In Laws v London Chronicle (Indicator Newspapers) Ltd it was observed that:
o ... if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service.
o ... one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is “wilful”: it does (in other words) connote a deliberate flouting of the essential contractual conditions.
100. In North v Television Corporation Ltd the Australian Industrial Court was called upon to consider the word “misconduct” as used in an industrial award covering journalists. In the joint judgment in North it was observed that:
“It is of assistance to consider the expression “misconduct” by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression “misconduct” as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment.
This situation would arise if there were conduct inconsistent with the fulfillment of the express or implied conditions of service. It is conduct of that kind which will justify dismissal at common law.”
101. It was also observed in North by a single judge that although the conduct of the journalist concerned was “reprehensible” it fell short of misconduct justifying summary dismissal because it was an isolated incident which occurred “under [the] considerable strain” of preparing for a nightly news bulletin.
102. In Gera v Commonwealth Bank of Australia Ltd the employee’s Australian Workplace Agreement provided for termination without pay in lieu of notice for misconduct if the misconduct was serious. In that case it was observed that:
“The use of the adjective “serious” imposes an additional requirement before the Bank can terminate employment without notice. Something more than mere misconduct is required.”
103. In Gera the Court went on to find that there was no doubt that the sexual or indecent assault of a fellow employee was serious misconduct warranting summary termination without payment in lieu of notice, as it constituted a fundamental breach of an employee’s duty, particularly where the employee was a senior employee and mentor to the employee who had been assaulted.” (References omitted)
[33] The Commissioner was mindful of the evidence led by Ambulance Victoria as to the significance of the conduct. She set out the evidence in the course of considering other relevant factors and said:
“[326] Ambulance Victoria argued that, as a long serving employee, Mr Walsh knew the ramifications of his behaviour and what his responsibilities were. It was Mr Holman’s evidence that account could not be taken of Mr Walsh’s prior good record or clinical competence because responding immediately to a primary case:
“It’s the core of what we do. It’s the reason that we’re paramedics. It is the reason we’re an Ambulance Service. It’s what the community expects. It is one of the most serious things that you cannot do by not responding....So not to do that and delay that response is - I can’t think of anything terribly more serious.....every paramedic knows that.”
[327] Mr Holman also stated that he was not sure that the organisation would allow a pattern (of delayed departures) to develop because “.... it was such a serious offence in terms of not responding to what one’s core duty was.””
[34] It cannot be doubted that the Commissioner addressed the seriousness of the conduct. Nor can it be doubted that the conduct was of the utmost seriousness and that a finding of serious misconduct in the circumstances cannot be said to be an error in the exercise of the discretion, or not reasonably open to the Commissioner. It was a fundamental breach of the employee’s duty and was a deliberate act. As such, on the basis of the above authorities, once Mr Walsh’s conduct was found to have occurred and was evaluated, it was a basis for summary dismissal. In my view the grounds of appeal that challenge the Commissioner’s treatment of this issue must be dismissed.
The consideration of harshness
[35] The grounds of appeal, in particular, also challenge the conclusion that the termination was not harsh. Matters of differential treatment, the serious implications of dismissal for an ambulance paramedic, the seriousness of the conduct and the 25 years of good service were relied upon to submit that the Commissioner erred in not finding the dismissal harsh.
[36] The Commissioner relied on the evidence of Mr Holman, the Manager who made the decision to terminate Mr Walsh’s employment and who signed the termination letter. The Commissioner summarised his evidence as to his decision-making processes as follows:
“[141] In terms of the factors he took into account in deciding to dismiss Mr Walsh, Mr Holman explained that he looked at it as three different pillars. The first one was said to be the individual and whether due process was followed and whether there were any mitigating factors. Secondly, Mr Holman said that he looked at what the political and business risk to the organisation was and community expectations. Finally, he looked at what the patient’s expectations were. Having reviewed these three pillars, it was stated that he concluded that it was serious misconduct and that the best course of action was Mr Walsh’s dismissal.
[142] With respect to the first pillar, Mr Holman explained that he was satisfied that due process had been followed. He indicated that he had been informed about the nature of the response provided by Mr Walsh. Further, he thought that Mr Walsh had been given an opportunity to respond on multiple occasions using whatever method. It was stated that Mr Walsh’s long service was not a consideration except in terms of him, therefore, being well aware of the ramifications of his behaviour and the consequences of not complying with his responsibilities.
[143] Mr Holman explained that, with respect to the second pillar, it was his view that what the community expects when someone rings 000 is that Ambulance Victoria will respond immediately. This was said to be particularly so in terms of the work of the Air Ambulance which was set up to look after the sickest and worst cases. It was all about speed - hence the helicopters - and timely access to the patient and then timely access to definitive care (a trauma centre). The third pillar was said to be irrelevant in terms of the outcome to the patient.
[144] The process that Mr Holman followed was stated to be getting advice from Employee Relations and Mr de Wit as the investigating officer. That was said to then go to the General Manager, be endorsed by Employee Relations and then the CEO. He indicated that, following the report from Mr de Wit and Employee Relations, he decided to recommend the termination of Mr Walsh’s employment for serious misconduct. Mr Holman said that he had never before been called on to terminate someone’s employment. With respect to the Employee Relations Internal Investigation policy, it was his view that Mr Walsh’s actions constituted serious misconduct on the basis of refusing to carry out a lawful and reasonable instruction - by failing to respond immediately to a 000 priority call. It was stated that it was not an immediate response as Mr Walsh took some time to respond. It was acknowledged that Mr Walsh had responded in the sense that he took the call and he had conversations with the Flight Coordinator. Mr Holman stated that, in his investigations, he did take into account the reasons why it took the amount of time it did.” (references omitted)
[37] In my view this evidence discloses an appropriate consideration of the relevant issues. The gravity of the offence and the notion of community expectations of the services provided by Ambulance Victoria are central. The obligation of Flight Paramedics to a primary emergency case is to respond immediately and without delay. The failure to respond to a 000 emergency call is obviously of the utmost seriousness for the Ambulance Service more generally. As I have said the failure of Mr Walsh to respond constituted grounds for summary dismissal. Any termination of employment has significant consequences for an employee. For Mr Walsh, his career as an ambulance paramedic in Victoria is probably over.
[38] Nevertheless, it is not a proper exercise of House v The King 16 principles to find that more or less weight should have been given to certain factors in exercising a discretion. As the principles make clear, relevant factors need to be considered, irrelevant factors should be ignored and sound principles need to be applied. If all relevant factors are properly considered an appeal bench should not interfere with the result even if another member may have reached a different result.
[39] It goes without saying that a finding as to harshness is a classical discretionary decision. The reasoning of the Commissioner is not detailed but in my view, is sufficiently clear. She identified all of the relevant factors. In the light of those factors she made an overall judgement. There is no error in such an approach. Nor do I believe that the judgement exercised was so unreasonable that no reasonable decision-maker could have arrived at this conclusion. Serious misconduct arising from a fundamental breach of duty is a basis for termination at common law. It can nevertheless be harsh in the circumstances. Fairness to employers and the need to uphold standards of conduct are also relevant considerations. Some other decision-makers might reasonably have reached a different conclusion but it cannot be said that all reasonable employers would have done so. Unfair dismissal cases do not involve the Tribunal determining what it would have done if in the shoes of the employer. The Commission is required to apply the statutory test and only find unfairness when the actions of the employer are outside of the range of fair and reasonable responses. In my view the Commissioner properly applied this approach. In a similar way it is not for the Full Bench to substitute its view on these questions or to disturb a decision where there is no error in the decision making process.
Other Grounds of Appeal
[40] The grounds of appeal to do not challenge the finding made by the Commissioner as to the giving of a reasonable opportunity to respond to the allegations. Indeed the Commissioner said that Ambulance Victoria should have provided more details of the allegations against him and weighed that defect into the overall consideration of unfairness. The circumstances relating to the investigation should be noted. They are detailed in the evidence of Mr Walsh, Mr De Wit, Mr Barkmeyer, Mr Holman and Mr Stephenson.
- The incident that led to the dismissal occurred on 14 August 2011. The team Manager, Mr De Wit immediately began an investigation and determined that there had been an unreasonable delay. Another Manager, Mr Barkmeyer, spoke to Mr Walsh about the events on 15 August 2011. Mr De Wit advised the employee relations division of Ambulance Victoria of his view that there had been an unreasonable delay on 23 August 2011.
- Ambulance Victoria procedures provide for investigations into matters of this nature with an opportunity for input by the employee by way of interview or a response in writing. Investigations of this nature typically take no more than two weeks. If the allegations of misconduct are substantiated, the Paramedic is advised in writing and invited to provide a further response of any mitigating factors. Any response is taken into consideration before any disciplinary action is sanctioned.
- On 26 August 2011, Ambulance Victoria wrote to Mr Walsh advising him that it was investigating allegations against him regarding the delay, provided details of the allegations and required him to attend an interview or provide a written response. The letter advised him that the seriousness of the allegations was such that termination of employment may result.
- Mr Walsh was shattered by this letter, went to see a doctor and went on sick leave immediately. He remained on sick leave until the termination of his employment on 31 July 2012 - some 11 months later.
- In the intervening period Ambulance Victoria made several attempts to obtain a response from Mr Walsh to the allegations including a string of communications through his union and the provision of a series of questions inviting a written response. The union advised that Mr Walsh was medically unfit to provide a response and medical certificates of unfitness for duty were provided.
- On 26 June 2012, Ambulance Victoria wrote to Mr Walsh advising that the outcome of its investigation was that each of twelve specified allegations of misconduct had been substantiated. It invited Mr Walsh to attend a counselling meeting or provide a written response concerning any mitigating circumstances.
- By letter dated 5 July, United Voice wrote to Ambulance Victoria, asking it to take into account certain considerations in its letter and further matters in an attachment written by Mr Walsh.
- As detailed above Ambulance Victoria wrote to Mr Walsh on 31 July 2012, stating that it had taken into account the matters contained in that correspondence but had decided to terminate his employment.
[41] These circumstances are detailed in the decision of the Commissioner. It cannot seriously be disputed that the Commissioner did not have regard to them. Indeed her criticism of the amount of detail provided to Mr Walsh was a factor in her consideration of unfairness. I am unable to discern any error of a House v The King 17 kind in the Commissioner’s approach to this matter. Nor am I of the view that the procedure adopted by Ambulance Victoria affected the fairness of the dismissal.
[42] The other grounds of appeal deal with such matters as the weight to be attached to certain factors and findings of fact on particular matters. Many of these matters are not legitimate grounds of appeal in a matter of this kind and in any event have not been established as having substance. I note in particular that in the hearings of this matter the Full Bench was played the recordings of the calls from the Flight Coordinator, and we have considered that evidence directly for ourselves. I do not consider that the Commissioner made any significant error of fact. Indeed, I am of the view that Mr Walsh’s failure to respond immediately could have been subject to findings that were more critical of him than those in the Commissioner’s decision.
Conclusions
[43] For the above reasons I do not consider that any of the grounds of appeal have substance or attract the public interest. I would decline to grant permission to appeal and dismiss the application for permission to appeal. The conclusion and orders of the majority are expressed in paragraph [13] above.
VICE PRESIDENT WATSON
Appearances:
Dr P. Sutton from United Voice for Mr Kelvin Walsh.
Mr R. Millar, of counsel, for Ambulance Victoria.
Hearing details:
2013.
Melbourne.
July.
16.
1 (1936) 55 CLR 499
2 Transcript para 1936
3 Transcript para 1941
4 [2010] FWAFB 10089.
5 [2013] FWC 1999
6 (1936) 55 CLR 499
7 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343.
8 (2000) 98 IR 233
9 PR928970
10 PR913493
11 PR910409
12 PR948009
13 [2010] FWAFB 1200
14 [2006] FCAFC 175
15 Wintle v RUC Cementation Mining Contractors Pty Ltd (No.3) [2013] FCCA 964
16 (1936) 55 CLR 499
17 (1936) 55 CLR 499
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