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Walsh v Ambulance Victoria

Walsh v Ambulance Victoria

Case [2013] FWCFB 6867 18 September 2013

Appeal

Harsh, Unjust or Unreasonable Termination

Misconduct

Fair Work Act 2009

Employment & Labour Law

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[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

Mr Kelvin Walsh
v
Ambulance Victoria
(C2013/749)

VICE PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT DRAKE
COMMISIONER JOHNS

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Walsh v Ambulance Victoria

Details

AGLC: Walsh v Ambulance Victoria [2013] FWCFB 6867
Case: [2013] FWCFB 6867
Decision Date: 18 SEPTEMBER 2013

CaseChat Overview and Summary

The case of Walsh v Ambulance Victoria involved an employee of Ambulance Victoria who was terminated from their employment following an incident in which they failed to respond to an emergency call. The employee, Mr Walsh, appealed against the decision of Commissioner Cribb at the Fair Work Commission, Melbourne, dated 29 April 2013, which upheld the termination of his employment. The appeal was brought to the Federal Circuit Court of Australia, where the central issue was whether the termination of Mr Walsh's employment was harsh, unjust, or unreasonable.

The legal issues before the court were whether the termination was justified and if the process adhered to the principles of procedural fairness and natural justice. Specifically, the court needed to determine if the decision-maker, Commissioner Cribb, had committed an appealable error and if there was a failure to consider the employee's opportunity to respond to the allegations against him. Additionally, the court examined whether the termination constituted serious misconduct warranting immediate dismissal, and if the process afforded to Mr Walsh was fair and just.

The court found that the decision to terminate Mr Walsh's employment was not harsh, unjust, or unreasonable. It was held that the Commissioner's decision was based on substantial evidence that Mr Walsh had failed to respond to an emergency, which was considered a serious breach of his employment duties. The court also found that Mr Walsh had been given a reasonable opportunity to respond to the allegations. In assessing whether the termination was justified, the court concluded that the seriousness of the misconduct warranted immediate dismissal and that the process followed was fair. The court denied the appeal on the basis that there was no appealable error, and the termination was in accordance with the principles of natural justice.

No further orders were made by the court. The decision of the Fair Work Commission was upheld, and Mr Walsh's appeal was dismissed.

Orders