Tarasinski v Department of Health and Community Services [1996] IRCA 210

DECISION NO: 210/96 CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - complaint of UNLAWFUL TERMINATION - whether termination HARSH UNJUST OR UNREASONABLE - no case submission Industrial Relations Act 1988, ss 170EA DINAH MARGARETTE TARASINSKI v DEPARTMENT OF HEALTH AND COMMUNITY SERVICES VI 5637 of 1995 Before: PARKINSON JR Place: MELBOURNE Date: 3 MAY 1996 IN THE INDUSTRIAL RELATION COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 5637 of 1995 B E T W E E N: Dinah Margarette TARASINSKI Applicant A N D DEPARTMENT OF HEALTH AND COMMUNITY SERVICES Respondent REASONS FOR DECISION (delivered ex tempore) 3 May 1996 PARKINSON JR This is my decision in relation to an application made pursuant to section 170EA of the Industrial Relations Act 1988. This decision is delivered ex tempore. The parties will be provided with a copy of these reasons settled from the transcript immediately that those reasons are published by me. The applicant's case in these proceedings was that the termination of her employment by the respondent was harsh, unjust or unreasonable. Immediately prior to the adjournment of these proceedings for decision an application was made by the respondent that the proceeding be dismissed on the basis that the applicant had not established a case pursuant to section 170EA. That is, a classic no case submission was made. It was further the submission of the respondent that on the merits, and notwithstanding the absence of any evidence being called by the respondent, that the application ought be dismissed. The applicant's evidence alone in these proceedings and the material before me tendered by the applicant established that there was no evidence which would, on balance, satisfy me that the decision taken by the respondent to terminate the employment of the applicant was, in the circumstances, harsh, unjust or unreasonable. The matters on which the termination was based involved serious criminal offences which had been committed by the applicant and in respect of which she had been found guilty, which offences, I am satisfied, impacted upon the applicant's performance of her duties. The applicant was employed by the respondent as a professional psychiatric nurse bound by a code of ethics. The operation of a code of ethics in respect of persons employed in the manner of the applicant is a matter of serious consequence to which the respondent was entitled to have regard in determining the penalties to be imposed upon the applicant. Nothing has been put in these proceedings by the applicant which would mitigate sufficiently, in my view, against such a serious breach of the obligations by the applicant as an employee. I am not satisfied that the applicant's work performance is not affected or is not liable to be affected by the criminal conduct of the applicant. There is no evidence before me to suggest that anything had changed between the date of the commission of the criminal offences and this hearing that would have re-established or tended to re-establish a level or degree of confidence in the respondent as to the applicant's capacity to perform her duties and functions as a professional nurse. The applicant in cross-examination gave evidence that she had knowledge and appreciation of the nature of the offences at the time that they were committed, and knowledge and appreciation of the policies of the respondent, and in particular, the code of ethics of psychiatric nurses and her role as a trained professional caring for vulnerable persons. Further, her evidence was of a decision to take no steps to inform the respondent of the nature of the charges which had been laid against her in respect of criminal conduct, notwithstanding an express and published policy of the respondent requiring such information to be provided. It is my view that employees occupying positions such as those providing psychiatric nursing services to clients within the State psychiatric system, must be employees who are beyond reproach, certainly in respect of criminal offences which touch directly upon the nature of the work that those employees do. In this case I am satisfied that the offences did so touch directly upon the nature of the work. This is both in respect of the administration of and contact with prescription and other drugs, together with the question of custody of the property of others and the capacity to influence its control or disposal. There is one further aspect that touches sharply on the question and which was not addressed by the applicant in her evidence, and that is the circumstance that it is the fact that the applicant was unable to resist the pressure or influence of a young person in a matter about which the respondent was entitled to be concerned, having regard to the nature of the dealings and relations the applicant has with patients within the psychiatric system in this State. On those bases, it is my view that the respondent was entitled to consider and to apply the serious penalty of termination of employment. It ought be noted that the applicant's good record in her employment prior to the date of the commission of the offences, and the circumstances of the applicant as a supporting parent with two very young children, are relevant matters to be taken into account, and have been so taken into account by me in deciding this matter. It appears that this was also a factor that was brought to the attention of the decision maker in determining the nature of the penalty to be imposed. The other factors of mitigation relied upon by the applicant included the difficulty she would have in obtaining, and was having in obtaining, any other employment. However, in my view, these factors, whilst relevant, do not constitute the nature of the penalty imposed upon the applicant to be harsh, nor does any injustice accrue to the applicant as a result of the penalty which was imposed. In balancing out all of the factors, including those relied upon in mitigation by the applicant, the weight falls heavily against any of those factors the applicant raised, having regard to the nature of the criminal offences committed and the nature of the employment which was undertaken and the services provided in the course of that employment. For those reasons, I dismiss the application which was made by the applicant. The application made by the respondent that the proceeding be dismissed is acceded to on the basis of the merits of the proceeding. The application made pursuant to section 170EA of the Industrial Relations Act is, therefore, dismissed. I find that the termination of the applicant's employment was not harsh nor unjust nor unreasonable. I certify that this and the preceding three (3) pages are a true copy of the reasons for decision of Judicial Registrar Parkinson delivered ex tempore and revised from the transcript. Associate: Dated: 3 May 1996 APPEARANCES Representative appearing for the applicant: Mr P Wheatley Health Services Union of Australia Counsel appearing for the respondent: Mr N Green Date of hearing: 3 May 1996