Industrial Relations Commission of New South Wales CITATION: Casari v Sydney South West Area Health Service (No 2) [2008] NSWIRComm 240 APPLICANT: Carlos Casari PARTIES: RESPONDENT: Sydney South West Area Health Service FILE NUMBER(S): IRC 1449 of 2007 CORAM: Schmidt J CATCHWORDS: Unfair Dismissal - summary dismissal - misconduct - wardorderlie - emergency department of hospital - photograph taken of child - applicant's command of English - fairness of investigation process - whether the conduct which led to dismissal established - whether applicant established innocent motivation for his conduct - whether the decision to dismiss was unfair - not established - question of public interest - application dismissed Children and Young Persons (Care and Protection) Act 1998 LEGISLATION CITED: Industrial Relations Act 1996 Summary Offences Act 1988 Byrne v Australian Airlines Limited (1995) 185 CLR 410 CASES CITED: Casari and Sydney South West Area Health Service [2007] NSWIRComm 249 Director of Public Employment by His Agent The Director-General of The Department Of Juvenile Justice and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (On Behalf of Elvin Brian Brown) [2008] NSWIRComm 221 North v Television Corporation Limited (1976) 11 ALR 599 HEARING DATES: 11 November 2008, 12 November 2008 DATE OF JUDGMENT: 10 December 2008 APPLICANT: Mr AG Rogers of counsel SOLICITORS: Simone Legal LEGAL REPRESENTATIVES: RESPONDENT: Mr D Gardner, solicitor SOLICITORS: Maddocks Lawyers JUDGMENT: - 45 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Schmidt J 10 December 2008 Matter No IRC 1449 of 2007 CARLOS CASARI AND SYDNEY SOUTH WEST AREA HEALTH SERVICE Application by Carlos Casari re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 JUDGMENT (No 2) [2008] NSWIRComm 240 1 These proceedings were brought by Mr Carlos Casari, who seeks reinstatement in his former employment with Sydney South West Area Health Service. Mr Casari was summarily dismissed for serious and wilful misconduct in July 2007. An interlocutory decision was given in September 2007, accepting Mr Casari's application beyond the time fixed by s 85 of the Industrial Relations Act 1996 ('the Act'), for the making of such an application. (See Casari and Sydney South West Area Health Service [2007] NSWIRComm 249.) 2 The hearing of these proceedings was delayed, during a police investigation into the matters which gave rise to the dismissal. Mr Casari later successfully defended a charge brought under s 21G of the Summary Offences Act 1988, of filming for indecent purposes. As I noted in the September decision: 3 The reason for Mr Casari's summary dismissal was not in issue. It was common ground that the dismissal followed Mr Casari, then employed as a wardorderlie, taking a photograph of a naked two year old patient in the emergency department of Liverpool Hospital. Mr Casari used his mobile phone to take the photograph. He accepted that he had no consent to taking such a photograph. The matter was investigated by Mr Casari's employer, the Sydney South West Area Health Service. Mr Casari was interviewed twice, on the second occasion he was accompanied by a union representative. He received a copy of the transcript of the interview, which he amended and signed and later, a copy of an investigation report, recommending his dismissal. He was also given an opportunity to provide reasons as to why he should not be dismissed. Mr Casari took legal advice and his solicitor made a written response, which was considered by the Area's Chief Executive, who made the decision that the employment should be terminated for serious and wilful misconduct, in breach of the NSW Health Code of Conduct. Notification of the circumstances was given to the NSW Ombudsman and Commission for Children and Young People and to the police. 3 Evidence was given by Mr Casari and by Ms Sarah Revis, Registered Nurse, Liverpool Hospital; Mr Alan Schembri, Human Resources Business Partner of TafeNSW, Wetherill Park, previously employed as the Director, Human Resources at Liverpool Hospital; Mr Pablo Arroyo, previously wardorderlie, Emergency Department, Liverpool Hospital; Ms Kung Lim, Director Nursing and Midwifery Services of Liverpool Hospital; Ms Laura Chies, Clinical Nurse Unit Manager, Emergency Department, Liverpool Hospital and Senior Constable Luke Bradley, State Electronic Evidence Branch, New South Wales Police. 4 It was Mr Casari's affidavit evidence that: 11. As I reached the corner of the nurses' station (where I placed an X) I heard some noise from my left side which I first though(sic) it was someone saying something. 12. When turned to look to my left I saw a child standing up in a cot hanging on to the rail on the cot and he seemed to be singing and dancing and had a generally happy and positive attitude. 13. It was fascinating to see this child so happy in an area where children are usually afraid and upset , with Doctors and needles around them in unfamiliar surroundings. 14. I believed the child needed some recognition like a tribute and the only thing I could think of was to take a picture of him. I wanted to do something nice from my heart. 15. I had my mobile phone in my pocket and it has a camera so I took one single photo of the child with it. 16. I took the photo by holding the phone in front of me and pointing it to the child. I aimed the phone to the upper part of the child's body, as my intention was to capture his face. At that time the child was looking away so I said something to attract his attention and when he turned towards me I took the photo. 17. I now think that may be I should have clapped my hands and said something like "Bravo" to the child to show him recognition, but the first thing that came to mind at the time was to take a photo of him. 18. I recall that there were 2 nurses standing nearby talking near another cot, about 4 or 5 metres away from where I was standing. I knew one of the nurses as Ms Kung who is a supervisor who works in another area and the other nurse I now know as Sarah Revis. 19. I was aware that they could see me and I could see them from where I was standing. 20. After I took the photo I turned around and started walking away towards the Sub Acute Ward to continue with my duties. 21. As I was walking away I looked at the photo and immediately deleted as I had no interest in the photo and I thought that was the end of it. 22. After I finished working in the Sub Acute Ward I was walking along the corridor past the Children's Ward when nurse Revis came to said: "you know you cannot take photos here" and I replied: "I already deleted it". 23. Prior to this incident, I had never been told by my employer that I could not take photos at work. I never received any verbal or written notice from my employer to that effect. 5 Mr Casari had been employed as a wardorderlie at the hospital since 1995. His evidence was that he had but limited command of English, which was functional, permitting him to conduct basic communication. In his evidence, he complained at having not been provided with a Spanish interpreter during the respondent's investigation, when he was nervous and upset, never imagining that he would lose his job over the incident. His union representative did not speak Spanish and he had difficulty following and understanding what was happening at the second interview on 13 July 2007. 6 Despite this evidence, when the matter came on for hearing, it was explained for Mr Casari that no complaint was now pursued in relation to his command of English and the way in which the investigation was conducted. 7 Mr Casari was provided with a record, in English, of what he had said at the interview. His son had translated the document and he made a number of amendments to it, for example: 13. For example, I was asked by Mr Schembri: "Why did you wait for the parent to leave before taking the photo? My response is recorded as: "the child was alone and this touched me. It was singing, moving around and smiling. He was a hero." This response infers that I purposely waited until the child's parents left to take the photo, when that was not the case as there were no parents around at the time, just the nurses. 8 When advised of the recommendation that he be dismissed, Mr Casari sought advice from a Spanish speaking lawyer. A few days later he was contacted by the police and was interviewed. He was arrested, but not charged and was released after being in custody for some five hours. The police took his mobile phone. The result of the respondent's investigation of what had occurred was a recommendation that Mr Casari be dismissed. He was advised accordingly and given an opportunity to respond. His solicitor's response on his behalf was considered and on 31 July, he was informed of his dismissal. His solicitor was still overseas and he made contact with him and was informed of his right to challenge his dismissal in proceedings such as this. He was not informed of any time limits and believed that the police investigation would exonerate him of any wrongdoing. 9 On 13 August, feeling anxious, he sought further legal advice and took the relevant documents that day to a new solicitor. He made an appointment to see the new solicitor on 31 August, when he gave instructions for these proceedings to be pursued. The application was later brought out of time. The decision to extend the time for making the application had regard to the applicant's complaints that the dismissal had been unfair, given his poor language skills and the respondent's failure to provide him with an interpreter. 10 On the evidence, Mr Casari's dismissal has caused him financial and personal hardship, given his age, the circumstances of his dismissal and the notification made by the respondent to the Commission for Children and Young People, in accordance with the provisions of the Children and Young Persons (Care and Protection) Act 1998. This situation, as well as the criminal charges which he later faced, had given rise to difficulties in seeking other employment. Mr Casari felt that his dismissal was a great injustice. 11 While Mr Casari acknowledged having received the original Code of Conduct, which applied to his employment, he denied ever having received updates. He also denied having violated the Code, in any event, claiming that: 'My taking the photograph was done with the best motive and intention of acknowledging a child patient's happiness and making a patient feel rewarded in what would usually be an unhappy circumstance for a patient in hospital'. He denied that the care of the child could have been compromised by him taking his photograph. 12 Mr Casari's explanation of what had occurred was that he had made a mistake, but had had no intention of harming the child and had not taken the photo for sexual gratification. 13 It was Mr Arroyo's evidence that he had met Mr Casari while working as a wardorderlie at Liverpool Hospital some years ago and that it was in his experience common practice for such an orderlie to walk through the children's section of the emergency ward. That was also the evidence of witnesses called in the respondent's case. Wardorderlies had cause to go to the area to remove dirty linen, to assist nursing staff when directed and to move from the acute to sub acute areas. 14 Mr Arroyo also had no recollection of ever having read or received the Code of Conduct, or it having been explained to him, even though his signature appeared on a document - Sign off sheet - code of conduct - NSW Health, dated July 2006. Mr Arroyo also could not recollect signs at the Hospital warning about the use of mobile phones and taking photos, although he said in cross examination, that there were hundreds of signs at the Hospital. He explained that it was his practice not to take his phone to work because it could not be used there. In his experience, staff constantly had to ask visitors in the emergency ward to switch off their phones, or to make calls in the waiting room. Consideration had even been given to placing a warning sign above every bed. 15 Mr Arroyo also gave evidence that wardorderlies required the permission of a nurse and a patient, to assist an unclothed patient. He also explained the care which had to be taken with children, who could not even be moved by an orderlie, other than in the company of a nurse, a practice which Mr Arroyo described as one of commonsense. 16 While it was common ground that Mr Casari had taken the photograph in question, there was some disagreement between Mr Casari and Ms Revis, the nurse who had the care of the child, as to what had occurred on 6 July 2007, particularly the direction from which he came, when he entered the Emergency Department and whether or not he saw Ms Revis there. It was Mr Casari's evidence that he had entered the room from the acute area, having walked past Nurse Revis and Ms Kung Lim, (to whom Mr Casari referred as Ms Kung), as he entered the room. He noticed the child and turned back to approach it, after he heard it making some noises. Nurse Revis and Ms Lim were behind him in the room. He had not sought to hide what he did, not considering that there was anything wrong with taking a photo of the child. He was attracted to it because it seemed so happy. 17 It was Ms Revis' evidence that she was a nurse working in the emergency department that day, responsible for the care of the two year old child who had been admitted with febrile convulsions. The child's father had left the ward for about 10 minutes, in order to get a drink, leaving the child in her care. A possible cause of the convulsions was an infection, for which tests were to be conducted. The child was naked, so that a urine sample could be taken. The child was in a cot, separated from other cots by a curtain. Ms Revis also had the care of a second child, in the next bed, who was being treated by a doctor. She believed that a parent was with that child. She was assisting the doctor, who was behind the curtain with the child and the parent, as well as taking care of the first child, who she was keeping under observation. 18 On Nurse Revis' evidence, she had gone to the nurses station to get something, she thought medication, for the second patient. Nurse Revis saw Mr Casari enter the room from the sub acute area, while she was in the nurses' station. He did not walk past her and Ms Lim on entering at the other end of the room. Ms Lim was not in the room. Ms Revis did not know her. The doctor and the parent were with the second child, behind the partially closed curtain. Ms Revis believed that Mr Casari did not see her in the nurses station, when he entered, they did not speak. He walked straight up to the cot, as she was walking back to the other child's cot behind him. As she walked past him, he pulled what she thought was a camera from his pocket, made noises directed at the naked child, motioning for the child to come closer. He then took the photo and left. 19 Ms Revis was surprised and concerned about what Mr Casari had done and went to speak to him, when the opportunity arose about 10 to 20 minutes later. There was a question as to precisely what was said, but even on Mr Casari's account, he told Ms Revis he had deleted the photo. On his evidence, he had done so immediately after taking it. Some two hours after the incident Ms Revis made a statement. In 2008 she made a further statement to the police. 20 Ms Revis was concerned about Mr Casari's actions, because the child's parent had not consented to the photo being taken; Mr Casari had not spoken to the father and she was also worried about his intentions in taking the photo, being conscious of the Hospital's Code of Conduct and her own responsibility as a registered nurse, with a duty of care for the child. 21 On Ms Revis' evidence, hospital staff are not permitted to have mobile phones at work, or to make personal calls, which might interfere with hospital equipment. Signs in the hospital alert people to this, as well as signs prohibiting the taking of photos, which are displayed in the Emergency Department. She was aware of her obligation to report Mr Casari's conduct. There was no criticism made of Nurse Revis as to her response. Plainly it was the appropriate one. 22 Ms Revis was upset by what had occurred and felt that she had to report the incident, first speaking to a colleague and then to the Clinical Nursing Unit Manager, Ms Madsley, who spoke to the acting Nursing Unit Manager, Ms Chies. Ms Chies was also concerned and spoke to Ms Lim, the Director of Nursing and the acting Director of Human Resources, Mr Alan Schembri. They shared the nursing staff's concerns and went to speak to Mr Casari. 23 Ms Chies' evidence was that she supervised Mr Casari, who reported to her. Wardorderlies assist nurses and are only required to approach a patient, when asked to assist a nurse. He had a good command of English at work; he was well spoken, clear and articulate. There were a number of relatively minor performance issues in relation to Mr Casari, concerning his adherence to various policies; he was aware of the Code of Conduct, copies of which were kept in the tearoom. 24 Ms Revis was visibly distressed about the incident when she reported it to Ms Chies on 6 July. Ms Chies did not herself speak to Mr Casari that day, but reported the matter to Ms Lim, who took it further. When Mr Casari later attended work to collect his belongings, he said to her 'I did a stupid thing. I took a photo of a child.' She did not discuss this with him. 25 Ms Chies explained how patient privacy was sought to be maintained in the Emergency Department. It was well known that patient consent was required, if patient privacy was to be jeopardized and that this included taking a photo of a child. Staff know that they cannot look behind curtains and that patients have to be clothed, before a curtain is drawn back. There are signs prohibiting the taking of photos. Mr Casari was aware of these requirements from the work which he performed at the Hospital and how he assisted nursing staff in their dealings with patients. 26 Ms Lim had been contacted about Mr Casari by Ms Chies and then made contact with Mr Schembri, given the seriousness of the situation. She and Mr Schembri then met with Mr Casari. He showed them his phone. While initially relaxed, he began to seem nervous as Mr Schembri discussed the incident with him. Ms Lim's evidence was that Mr Casari gave clear explanations in English as to what had happened. She did not find his English poor. He said nothing, and did nothing, which suggested to her that he needed an interpreter. In his daily work Mr Casari was able to read patient lists. Ms Lim's first language is not English and on her evidence, if she had had any concerns about Mr Casari's grasp of English, she would have arranged for an interpreter. It was Mr Casari who raised the question of child pornography in the discussions. He then appeared to appreciate the seriousness of the matter being raised with him. 27 In cross examination, Mr Casari explained that he had raised this issue with Ms Lim and Mr Schembri at the meeting, because while he was waiting to speak to them, he had time to think and it had occurred to him that they might be concerned at his purpose in taking the photo. He wanted to assure them that he had had no indecent purpose. 28 Mr Schembri's evidence was that after an investigation with the various nursing staff on 6 July, it was decided that it was necessary to speak to Mr Casari about the issue. When he met with Mr Casari and Ms Lim, their conversation was: Schembri : "Do you have a camera at work?" Casari : "No, I have a mobile phone" Schembri : "We have been told that you have allegedly taken a photo of a child. Is that true?" Casari : "Yes, it was a naked child". Schembri : Is the photo on your camera?" Casari : "No, I deleted it soon after" Schembri : "Did you delete the photo before or after nurse approached you?" Casari : "No it was before she approached me". Schembri : "Why did you take the photo?" Casari : "It was a joyous moment, the boy was happy and I felt he needed to be rewarded". 29 Mr Schembri looked at the phone and found no photos. He could not establish whether the photo had been deleted before or after Mr Casari had spoken to Ms Revis. Mr Casari was then stood down on full pay, while the investigation was pursued. 30 Advice was taken from the police, who enquired whether or not the photo had been transmitted. This was not known. Two constables attended the Hospital later that day; they advised that they would contact the child's parents to advise them of the circumstances. On 11 July, the police advised the Hospital that its internal processes could continue and that Mr Casari could be interviewed; the parents had not yet been informed and that the police would conduct their own investigation, before doing so. 31 Mr Casari was then advised that he would be interviewed on 13 July, in order to give him at least 24 hours' notice. 32 On 13 July, Mr Casari attended a second meeting with a union representative. Notes taken of the meeting were in evidence. Mr Casari later settled them with his son's assistance. An investigation report was then produced, recommending that Mr Casari's employment be terminated. On 19 July, Mr Casari was given three days to show cause why he ought not to be dismissed, being then provided with a copy of the report. 33 Mr Casari provided a response, which was taken into account when the decision to dismiss was later made, as was his 11 years' service. The view taken was that his child related conduct outweighed his previous employment record. On 30 July, the Chief Executive Officer, Mr Wallace advised Mr Casari of the decision. 34 Mr Schembri's evidence was that Mr Casari's command of English was very good; that he never suggested that he could not understand what was happening. Mr Schembri never felt that he was not comprehending what was being said or discussed. Mr Casari never asked for an interpreter, nor did he even ask for anything said at the interview to be repeated. If he had, an interpreter would have been considered. In his 11 years of employment at the Hospital, the need for an interpreter had never arisen in Mr Casari's case. 35 Mr Schembri had been involved in other situations where a staff member was provided with an interpreter, but in this case, the view was that Mr Casari did not require one, given his strong English skills and the fact that he never requested an interpreter. 36 The issue of an interpreter only arose after the dismissal was challenged. On his enquiries of those who worked with Mr Casari, they had not experienced situations where his understanding of English had posed any problem. 37 Mr Casari had acknowledged receipt of the Code of Conduct in 1995. His acknowledgment had been witnessed. Consideration Mr Casari's command of English 38 Contrary to what was advanced in the out of time application, at this stage of the proceedings, when the case was opened for Mr Casari, the issue going to Mr Casari's command of English and any unfairness in the dismissal process, flowing from the absence of an interpreter, was abandoned. This course was taken despite Mr Casari's evidence as to his poor command of English and the fact that this had earlier been claimed to have revealed the unfairness of the dismissal procedure. This was a significant factor in the exercise of the discretion to grant Mr Casari leave to bring his application out of time. 39 What level of English Mr Casari, in reality, commanded, was put in issue before this concession was made and it was thus addressed in the evidence called by both parties. Despite the concession, it is necessary to say something about this evidence, given the other issues which must be resolved, involving as they do, conflicts between the evidence of Mr Casari and that of other witnesses. 40 In his affidavit evidence, Mr Casari described his ability as being limited to 'functional English'. Yet on the evidence of those who worked with him, he had a good command of English and had never required the assistance of an interpreter at work. Nor did he ask for such assistance, even during the interview process. The need for an interpreter was not raised by his union, which initially assisted him. It only arose after he had obtained legal advice, when he was responding to the investigation report which led to his dismissal, then being raised to ground a complaint that the procedure adopted had been unfair. 41 In giving his evidence at the further hearing, after the concession was made, Mr Casari was but occasionally assisted by an interpreter, to explain a question. He had no difficulty in answering in English. Having observed what level of English Mr Casari commanded at the two hearings, the concession that the absence of an interpreter did not disadvantage Mr Casari in the dismissal process, was properly made. 42 It follows that the complaint initially advanced in these proceedings as to the unfairness of the dismissal process, given Mr Casari's limited command of English and the failure to provide him with a Spanish interpreter, plainly had no real foundation and cannot have given rise to any unfairness in the dismissal process. 43 It is not every employee who does not have English as their first language, who will require the services of an interpreter in circumstances of an investigation into alleged misconduct. An employer will need to make a judgment about what is fairly required. In this case, the respondent did not err in the conclusion which it reached. 44 Mr Casari plainly did not require an interpreter during the investigation process, in order to ensure that his ultimate dismissal could have been a fair one. To the contrary, there was not ever any real dispute about what had occurred. Mr Casari well understood what was being raised with him. He never denied having taken the photo in question, could understand the concern which had resulted in the employer investigating what had occurred, indeed it was he who raised that concern with Mr Schembri and Ms Lim, so as to assure them that he had had no indecent intent in taking the photo. That being so, he was convinced that his actions had not been wrong. He accepted that his actions could be misunderstood, but if he had no ill intent towards the child, his view which he has never abandoned, was that he had not engaged in any misconduct. 45 That remained the essential gist of the case put for Mr Casari, in these proceedings. The event was a trivial one, which had warranted a mild admonishment, nothing more. The dismissal was a complete overreaction. The fairness of the investigation process 46 What was finally advanced in Mr Casari's case as to the fairness of the investigation process, was 'subtle failures of procedure'. No complaint about Ms Revis' report of his conduct, or the investigation process which followed, was pressed. It was not in contest that it was Ms Revis' obligation under the respondent's Code of Conduct and Child Protection Policy, to make her report and the respondent's obligation then to investigate what had occurred. 47 On any view, there can be no doubt as to the fairness of the approach adopted by the respondent to its investigation. Mr Casari was given an opportunity on 6 July to explain his conduct. Then he had the assistance of a union representative during the further investigation and later, that of his solicitor. From the outset, he was given every opportunity to give an explanation for what he had done, as well as later, an opportunity to address the employer on whether or not he ought to be dismissed in the circumstances. 48 The decision to dismiss was made by the CEO of the Hospital, after consideration of a report prepared by Mr Schembri. The report was criticised in two ways in the applicant's case. Firstly, for not making clear Mr Casari's advice that the photo did not depict the child's 'private parts' and secondly, for not referring to Mr Casari's claim that what he had done, had been done in the open. 49 I accept that the report does not expressly refer to either matter, although the report was accompanied by various documents, including the notes of interview which Mr Casari had settled, where he had explained that the photo had not included the child's private parts. That what had been done, had been 'done in the open' was never in question, as any reading of the report and attachments, makes clear. There was no question that the photo was taken of a child admitted to the paediatric section of the Emergency Department. The conclusions reached in the report were: (i) Mr Casari has admitted on two separate occasions (on 6 July 2007, alone and on 13 July 2007, in the presence of his HSU support person) that he took a photograph of a naked 2 year old child without the consent of the parent/carer while he was on duty in the Emergency Department on 6 July 2007. (ii) In the formal fact finding interview on 13 July 2007, Mr Casari has indicated that he did not believe that he was doing anything wrong and that he felt the child needed to be rewarded for his bravery. However, having been questioned by Hospital management, he understands why there is a concern around his actions. (iii) Mr Casari has stated that he did not have any intention to use the photograph in an inappropriate manner and had deleted the photograph moments after having taken it. (iv) Mr Casari signed the NSW Health Code of Conduct Policy in November 1995 when he was first employed. (v) The reasons given by Mr Casari for taking the photograph of the child are not justified and violate the Code of Conduct Policy PD2005_626 because he has not acted in an appropriate manner (1.2) and the care of a child has been potentially compromised (9.2). (vi) With the high profile that the Health Service and the public media gives to Child Protection issues it is highly probably that Mr Casari was aware that taking a photograph of a naked child in the Emergency Department without parental consent was inappropriate behaviour. 50 It was recommended that Mr Casari be dismissed. As conceded for Mr Casari, even if the claimed omissions in the report be accepted as procedural difficulties with the process which led to the decision to dismiss, they do not inevitably lead to the conclusion that the dismissal was unfair. 51 It is, however, apparent from the process adopted, that all of the relevant information was before the decision maker, Mr Wallace. The letter of dismissal also shows that consideration was given by Mr Wallace to what was said in Mr Casari's solicitor's letter of 19 July. That correspondence made Mr Casari's position, as to both issues relied on, quite clear. There was no basis upon which it could be concluded that these 'subtle failures' of procedure could lead to the conclusion that the dismissal had been harsh, unreasonable or unjust. Did the respondent establish that the conduct which led to the dismissal had occurred? 52 An evidentiary onus fell on the respondent in this respect, as it accepted. Both parties accepted that the applicable law is that discussed by Smithers and Evatt JJ in North v Television Corporation Limited (1976) 11 ALR 599 at [608-9]: 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. 53 I am satisfied that the evidentiary onus which fell on the respondent was met. 54 There can be no doubt that despite Mr Casari's denial in his evidence, he was aware that he ought not to have had his phone on, while he was working in the Emergency Department. So much was conceded by Mr Casari in cross examination and accepted in the submissions later advanced. 55 The policy was in place because phones could interfere with medical equipment. While Mr Casari denied ever having had to ask anyone to turn off their phones at work, it was Mr Arroyo's evidence that staff frequently had to do so. Had Mr Casari observed the policy, as he ought to have done, he should not have had the phone to hand at work, switched on, so that he could use the camera function. There was evidence of signs in the Hospital warning that phones were not to be used. There were also signs warning against photos being taken, but when those signs were erected, was not established. This is but of little moment. There was finally no issue that Mr Casari should not have been using his phone while at work in the Emergency Department. 56 On Mr Casari's evidence in cross examination, he had used his phone to take some 8 to 10 other photos at work. One was of a helicopter. What the other subjects were, was not explored in the evidence. In the criminal proceedings, the deleted photo was recovered as the result of a forensic process. It was the only image so recovered. There were other photos still on the phone, which were also retrieved. Senior Constable Bradley explained how the photo had been recovered and the difficulty in recovering such photos, once they had been overwritten in the memory card. 57 Mr Casari's evidence in relation to using his phone to take photos at work was relevant to another issue, namely what Mr Casari said to Ms Revis when she spoke to him on 6 July. Her evidence in these proceedings, was that what he said gave her the impression that this was not the only time Mr Casari had taken such a photo. Nevertheless, in evidence, there were two versions of what he had said to her. In her affidavit, Ms Revis recounted the conversation as: Revis: "You know you can't take photos" Casari: "I take them and then I delete them". 58 Ms Chies' note of what Ms Revis had later told her, was: The nurse then approached the W/O and asked him Why are taking a photo of this child? you cannot do this he replied "I just take it and then I delete it" 59 In the note later prepared by Mr Schembri as to what Ms Revis had said, it was: I said to him that he shouldn't be taking photos. He said that he takes them and then deletes them and then he left the area. 60 There is an obvious difference in the account recorded by Ms Chies and that recorded by Mr Schembri and what appears in Ms Revis' affidavit. Ms Revis may of course not have been responsible for that difference. 61 In his evidence in chief, Mr Casari explained that their conversation was: "you know you cannot take photos here" and I replied: "I already deleted it." 62 This evidence implicitly accepts that Mr Casari knew then what Ms Revis had said to be true, namely that he should not have taken the photo, despite what he later said in this respect in his evidence, or what was said on his behalf, by his solicitors. 63 Ms Revis' evidence was that her understanding was that Mr Casari intended to convey that this was not the only time he had taken a photo at work. That is consistent with her affidavit evidence and what Mr Schembri recorded she had told him. The impression is also consistent with Mr Casari's own evidence in cross examination that he had taken 8 to 10 other photos at work, using his phone. In light of that evidence, that Ms Revis understood him correctly, must be accepted. That was clearly the basis on which the investigation proceeded. Mr Schembri's report notes that his investigation was concerned to establish: (i) determine whether Mr Casari had taken a photograph as alleged (ii) determine whether Mr Casari had permission to take the photograph (iii) investigate what Mr Casari did with the photograph 64 There was no issue between the parties in these proceedings that the photograph had been taken; that Mr Casari had neither sought nor obtained permission to take the photo and that he later deleted it from his phone, before he spoke to Mr Schembri and Ms Lim. 65 On 19 July, Mr Casari was advised that it had been established that 'the formal investigations into the allegation that you took a photograph of a naked 2 year old child on 6 July 2007 without the appropriate consent from the child's parent or carer have been completed.' Mr Casari was also advised that it had been concluded that his actions had violated the respondent's Code of Conduct and that it had been recommended that he be dismissed. He was invited to give reasons as to why this should not occur. 66 The response from his solicitor was extensive, it being claimed that Mr Casari had some 11 years of unblemished and exemplary service; that he had not breached any term of his contract, or any law; that he had never denied taking the photo, which he had immediately deleted and that he had been co-operative at interview; that despite being asked questions which should never have been put to him, that he took the picture without unlawful or ulterior motive; that the child had not been harmed; that Mr Casari's suspension had been irretrievably defamatory; that the photo had not been used or displayed; that Mr Casari was unaware that he was precluded from taking the photo; that he had not hidden what he did; that he was motivated by sympathy to the child; that given his command of English, the absence of an interpreter at interview was unfair and that he had great difficulty in understanding what was put to him; that he was remorseful, but aware that he had done no wrong, other than to himself and only because of the manner in which his employer had misinterpreted his innocent actions. There was no suggestion in this letter that Mr Casari was not aware of the Code of Conduct to which reference had been made in the respondent's letter, to which a response was being given. 67 On 30 July, Mr Casari was advised of the termination of his employment for serious and wilful misconduct. 68 There is thus no issue that Mr Casari took a photo of an ill, naked, two year old child, admitted to the paediatric section of the emergency department of Liverpool Hospital, without consent. I am entirely satisfied that this was a serious breach of the child's privacy and of the duty of care which the respondent had to the child and its parents, a duty which it must observe, through the conduct of its employees. 69 In his affidavit evidence in these proceedings, Mr Casari annexed the Code of Conduct which had been referred to when he was given the opportunity to make submissions as to why he should not be dismissed. Despite his solicitor's letter before dismissal, where no issue was raised as to any lack of familiarity with the Code, Mr Casari's evidence in these proceedings was that he was not aware of such a document before his dismissal, nor had he seen a copy of it. 70 While there was evidence that when first employed in 1995, Mr Casari was made aware of the Code of Conduct and that when the Code was updated in 2006, Mr Casari acknowledged that he had received it and understood it, there was no direct evidence that he had read the 2005 Code. At best there was evidence that copies of policies, inferentially including the Code, were kept in tea rooms at the Hospital. 71 Nothing much finally turns on this. As was submitted for Mr Casari, there was no issue as to the serious matters of misconduct which were being raised with Mr Casari, namely, that he had not acted in an appropriate manner in taking the photo and that the care of the child had potentially been compromised. 72 What the respondent had to determine in its investigation was whether there had been misconduct, particularly given Mr Casari's claim that he had not had any intention of harming the child, nor any intention of obtaining sexual gratification from the photo. The view to which it came, was that taking the photo involved serious misconduct, irrespective of his intentions and that, in any event, it could not accept Mr Casari's assurances as to his intentions in taking the photo. It did not have access to the photo. The police, which then investigated the matter, later laid a charge, which Mr Casari successfully defended. As was accepted for Mr Casari, that could not establish that the misconduct found by the respondent, had not occurred. 73 Despite the fact that the respondent could not establish in its investigation that Mr Casari had any intention of obtaining sexual gratification from the photo, that the misconduct which did occur was serious, as the respondent concluded, cannot be doubted on the evidence. 74 For Mr Casari it was argued that 'fairness might require courage' in an area of sensitivity such as this, where the evidence showed Mr Casari had done 'nothing significantly wrong'. It was further argued that: 'The true problem, one guesses, is that nobody wanted to take the decision to tell' the child's parents 'that it was an unfortunate spur of the moment matter which could be dealt with most properly by a short word to the employee.' 75 I am unable to accept this characterisation of Mr Casari's conduct. There was nothing in the evidence which could leave such a view open. It is inconsistent with the evidence of all of the respondent's witnesses and the documents in evidence. The submission does not even accord with Mr Arroyo's evidence, which was that commonsense would have told a wardorderlie that he should only approach a naked child in the presence of a nurse. 76 References in Mr Schembri's report to the Health Service and the media giving high profile to child protection issues, making it 'highly probable that Mr Casari was aware that taking a photograph of a naked child in the Emergency Department without parental consent was inappropriate behaviour', do not provide a proper foundation for the submission advanced. To the contrary, Mr Casari's own evidence of what he told Mr Schembri and Ms Lim on 6 July at the outset of the investigation, itself provided a foundation for the view Mr Schembri had come to. The note of the interview recorded him as stating: "I know now why you are asking me these questions because of all the child pornography around but I don't do that sought(sic) of thing and if it is about that then I know in my heart that I have not done anything wrong. I have worked here for 11 years and nothing like this has ever happened." 77 I am also simply unable to accept that this was a trifling incident, as was argued for Mr Casari, which ought to have been dealt with by a mild admonishment. 78 Mr Casari's case is brought under s 84 of the Act. In determining whether his dismissal was 'harsh, unreasonable or unjust', s 88 requires that: In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given—its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant. 79 Here, there was no question that the dismissal flowed from an investigation into an incident which the respondent had a legal obligation to investigate. The view taken by the respondent as a result of the investigation was that Mr Casari's conduct in relation to the child was highly inappropriate. It was aware that Mr Casari claimed that he had not photographed the child's private parts; that he claimed that he had intended no harm and had sought no sexual gratification from the photo; that he had only realised the implications of what he had done, afterwards and that he had taken no photos of other patients. The photograph was not available, Mr Casari having deleted it from his phone. 80 What the respondent also had to consider was that the child had been unclothed, in order that his temperature could be brought down and his nappy removed, for tests to be conducted to establish whether his condition was caused by an infection. This required a urine sample to be taken. The opportunity to take the photo thus arose because the child's father had stepped outside of the Emergency Department to get a drink. It is impossible to conceive that Mr Casari would have sought to take a photo of the child, whether clothed or naked, if the father had been present. From whatever direction Mr Casari entered the room and wherever Ms Revis then was, it was common ground that she was not near the child when Mr Casari approached. Had she been, again, it is exceedingly unlikely that Mr Casari would have sought to take a photo, no matter how fascinating he found the child's behaviour. 81 Ms Revis' evidence was that she had moved some distance to the nurses' station, in order to get some medication for the second child, when she saw Mr Casari enter and approach the child. He did not see her. Mr Casari's evidence was that he did see her when he entered the room; that she was standing at the other end of the room, speaking to Ms Lim. On Ms Lim's evidence, as at 6 July she had never met Ms Revis and she was not present and only later heard of the incident from Ms Chies. Ms Revis' evidence was that she was not talking to anyone when she saw Mr Casari enter the room, she was getting something for the second child for whom she was caring, from the nurses station at the other end of the room. She did not know Ms Lim. Plainly, it is possible that any one of the three people allegedly present could have been mistaken in their recollections. Given the denial of both Ms Revis and Ms Lim, that Ms Lim was present in the room, I am unable to prefer Mr Casari's evidence on this point. 82 Indeed, it was finally accepted in submissions that Mr Casari must have been in error as to the identity of the person to whom Ms Revis was speaking. Whichever version is accepted, the child was not being directly attended by an adult, when Mr Casari approached and took the photograph. 83 Ms Revis had no motive to do anything other than to report what she had observed Mr Casari do. She did not know Mr Casari well. Mr Casari, on the other hand, did have a motive for suggesting that two adults were present, and able to observe what he was doing, when he took the photo. That scenario plainly provided support for his innocent explanation of his behaviour, which a scenario where he was able to take a photo, not having seen any adult present to observe what he was doing, did not. 84 In coming to the conclusion that I must accept Ms Revis' evidence as to where she was when she saw Mr Casari enter, I am unable to accept that Mr Casari was more credible than Ms Revis, or that she was a careless, unreliable, confused witness with poor observation skills and poor recollection, as was argued for Mr Casari. Her evidence was carefully analysed in order to put it in its worst light, but the fact remains that the essentials of what she reported were entirely undisputed by Mr Casari. The two major differences in their evidence, were the direction from which he had entered the room and where Ms Revis had been, when she first saw him. This was important only because of the light which it cast on Mr Casari's behaviour, that is, whether or not he could have believed that he was being observed, when he took the photo. 85 Contrary to the submissions advanced for Mr Casari, I take the view that Ms Revis endeavoured to be entirely truthful in her evidence, agreeing with some matters put to her, which put her evidence in a more favourable light for Mr Casari, including when she was uncertain of her recollection, but not agreeing, where she said her recollection was clear. 86 In her affidavit, Ms Revis said that the child was not singing and dancing when approached by Mr Casari, as was his affidavit evidence. In his cross examination, Mr Casari said: Q. And you said you heard somebody talking? A. WITNESS: Yes, say something, something moving and some like talking and I look at that point, yeah. Q. Was it a child talking? A. WITNESS: Yeah. Q. Two year old child talking? A. WITNESS: I don't know talking it was producing some sound, I believe he was talking in his child language I don't know, I didn't understand what he said but produced some sounds. Q. And then because you heard this, you walked to the cot? A. WITNESS: Yeah. Q. I think you have described he was singing, was he singing, was the child singing? A. WITNESS: Yeah looking like to be singing and moving rhythmically and producing some sounds. Q. Dancing? A. WITNESS: I couldn't say, I can't say dancing but he was moving rhythmically, you know, bending the knees, moving to the left, moving to the right. So in my opinion it was doing something, pretending to dance at least, I don't know. It is my interpretation. Q. And he seemed very happy? A. WITNESS: Looked to be happy, yeah. Q. Was he smiling? A. WITNESS: He smiled to me when I looked at him for the first time, the first you know eye contact he smiled to me. Q. And you tried to get his attention? A. WITNESS: Sorry? Q. You tried to get the boy's attention? A. WITNESS: In that moment I believe he is trying to call my attention, not I call. Q. He was trying to communicate with you? A. WITNESS: Something like that, looked to be need some attention, some company, looked to be alone and I saw probably this child is doing this because he need some kind of attention, and I approached him. Q. And what happened when you approached the child? A. WITNESS: He still doing these nice things and I feel, you know, amazed because children normally in this environment you they look to be so afraid, nurses, doctors and especially if they are sick they are down completely with temperature whatever. This child was totally the opposite, singing away, joyful, moving like dancing, very active so I thought this is, you know, amazing and I feel you know fascinated for what he was doing. And I said probably this child needs some recognition or something like that. And that probably was my mistake and, instead to say bravo or something like that I said what kind of, you know, to him to show my appreciation I was going to take his picture, like I didn't think twice. I took my phone and in the way of recognition I show to him that I was taking a picture of him. Q. Did you show him the picture after you took it? A. WITNESS: I didn't show the picture, I show myself in front of him taking the picture. Q. I am just wondering, you found it fascinating, it was remarkable that he was happy and yet you didn't show him the picture, it was just for you? A. WITNESS: I didn't think it is necessary to show the picture to the child. Q. Did you show the picture to anyone else? A. WITNESS: No. Q. Did you stop to think that perhaps you should have asked permission to take a photograph. A. WITNESS: I should, if the parent was there, yeah. Q. The parent wasn't there. There were two nurses near by, did you show those nurses the photograph? A. WITNESS: No. 87 In her evidence in chief, Ms Revis explained that the child was standing, holding on to the rails, pushing them when Mr Casari approached. In cross examination she explained that the child was facing away from Mr Casari when he approached. Mr Casari and Ms Revis' accounts were entirely consistent, in all of these respects. 88 Ms Revis had also given evidence in the criminal proceedings. She agreed that there her evidence had been that the child was 'sort of playing' in the cot and that when Mr Casari spoke to the child, calling him over, that the child had smiled at Mr Casari when he turned. Ms Revis also agreed that it would be reasonable for Mr Casari to expect that there was somebody behind the curtain at the next bed. She also explained that when sick children were treated in hospital, as their fevers came down, they turned back to their normal selves. She volunteered that: 'While they're sick, they're not very happy, but when we treat them they can be quite happy'. 89 It was submitted that this evidence showed that Ms Revis was an unreliable witness. I am unable to accept the submission. Her evidence that the child was standing in the cot, holding the rails, shaking them, sort of playing, with his back to Mr Casari before he approached him and smiling as he turned, is not evidence that the child was singing and dancing in the cot, 'joyous' as Mr Casari described him. 90 The photo in evidence, did not corroborate Mr Casari's evidence that he was moved to take the photo because he was so impressed by the child's happy demeanour; he wanted to pay the child some attention and thought that the best way of doing this was to take his photo. There was certainly no suggestion that he tried to show the photo to the child, which might have been expected, if he was truly intending only to pay attention to the child. The upshot of Ms Revis' evidence was that the child smiled at Mr Casari when he motioned him over from where he was playing with the rails of the cot with his back turned to Mr Casari, he was not dancing and singing in the cot, in such a way as to attract Mr Casari's attention. 91 The photo does not depict a happy child. It is best described as a pensive shot, consistent with the evidence that the subject was a two year old child who was ill, having been admitted to the Emergency Department suffering with febrile convulsions. These were, no doubt, unfamiliar surroundings. The child was approached by Mr Casari, a stranger, who spoke to him to gain his attention and then took his photo. There was no suggestion that the child was crying or distressed by this, to the contrary, Ms Revis and Mr Casari both observed the child smile at Mr Casari, as it turned towards him. 92 It is certainly possible therefore, that the fleeting image then captured was not consistent with what Mr Casari had earlier observed as the child's extraordinary, happy demeanour. The image was, however, more consistent with what Ms Revis, the nurse caring for the child said that she had observed of his demeanour and not how Mr Casari described the child, as unusually happy, so as to capture his attention and motivate him to take a photo. 93 The image and Ms Revis' evidence tends to lend support to the view reached by the respondent, that in reality, Mr Casari had no proper explanation to advance for what he did on 6 July 2007. Mr Casari's explanation was that he took the photo in order to pay attention to a happy child. Even if the explanation be accepted, it can provide no proper explanation for what, on any view, was serious misbehaviour. As was Mr Casari's own evidence, he would rightly himself object to having his photo taken, if admitted as a patient in hospital and would also object to having a photo of his own child taken, especially if naked. 94 In any event, what cannot be overlooked is that when Mr Casari observed the child and decided to approach to take his photo, he neither sought, nor obtained, the permission of the child's parent, nor did he first ask the nursing staff, who he claimed to have seen on entering the room. On Ms Revis' evidence, when Mr Casari approached, he did not observe her in the nurses station and because the doctor and parent were behind the partially closed curtains, attending to the second child, he did not see any adult present. That also accords with Mr Casari's evidence that the child was alone when he approached and took the photo. 95 That this action involved serious misconduct on Mr Casari's part, cannot be doubted. On Mr Arroyo's evidence, wardorderlies had to take particular care with child patients, so that even transferring a child to another ward required the presence of a nurse. Ms Chies' evidence was to similar effect. Mr Casari had no duties to perform in connection with this child. For Mr Casari's part, it did not take him long to appreciate the seriousness of what he had done and how it might be perceived by his employer. As he explained in his evidence, this was why he told Mr Schembri and Ms Lim that the photo had not been of the child's private parts. 96 On any commonsense view it cannot be doubted that every patient is entitled to be treated with dignity and respect while admitted to a hospital. Every parent is also entitled to expect that photos will not be taken of a sick child admitted to a hospital's emergency department, while the child is left in the care of the nursing staff. This is so, no matter what demeanour the child is displaying. Mr Casari described this child's behaviour as 'joyous'. Nurse Revis did not agree, but accepted that what he was doing in the cot might be described as playing and that he had smiled at Mr Casari, when turning towards him. In either case, that cannot have been a basis upon which Mr Casari concluded that it was in order for him to take the child's photograph, whether or not it included the child's private parts. 97 While it was the case advanced for Mr Casari that there had been an overreaction to what had occurred on the respondent's part, and that all that should have occurred was that Mr Casari should have been taken aside and counselled that he should not take such photographs, because his intentions could be misunderstood, I am unable to accept the submission. It was advanced in opening by reference to an analogy, it being argued that while now there were concerns held in society about naked children being photographed, in 1968 there would have been no such concerns, if, for example, children playing naked under a sprinkler, had been photographed. 98 Perhaps, as the submission infers, those were more innocent times and so a person in Mr Casari's position might have been more readily believed when he said he had no ill intention in taking the photo. Or, perhaps there was then a much lesser appreciation of an unfortunate reality well recognised today, namely that there are some adults in our society, even those working in situations where it would be reasonable to expect that their intentions towards the children in their care, can only spring from the best of intentions, in fact, they have the worst of intentions towards such children. Such intentions of harm towards children are not always readily apparent, or able to be uncovered, by those upon whom society imposes obligations to ensure the safety of children. Thus employers such as the respondent are expected to take great care in dealing with any behaviour which might involve children in their care being put at risk. 99 In this case, Mr Casari always said that he had not taken a photo of the child's 'private parts'. As Ms Lim and Mr Schembri each accepted, and indeed, as was the submission advanced for Mr Casari, had that been the case, the conduct would have been even more serious than it in fact was and he could have no expectation of a favourable conclusion in proceedings such as this. In these proceedings, the respondent did not seek to establish that Mr Casari had a sexual purpose in taking the photo. In Mr Casari's case, it was sought to establish that he had no such purpose. It will be necessary to return to consider that aspect of the case. 100 As to the analogy advanced for Mr Casari, I cannot accept that it was a good one. In my view, even in 1968, had a wardorderlie taken a photo of an ill, naked child, during the child's admission to the Emergency Department of Liverpool Hospital, the benign view urged of Mr Casari's conduct would not have been properly available to be taken, whether or not the person taking the photo had a sexual purpose in taking it. 101 It is of course entirely unlikely to have then been practically possible for such a thing to have occurred, given that in 1968 there were no mobile phones with camera functions in everyday, common use. The temptation to take a photo is thus much less likely to have arisen then. Further, had an orderlie engaged in such conduct, it would not have been a digital image which was created, using a device which enabled the image immediately to be seen and communicated around the world by electronic means, as was possible in 2007. Still, even in 1968, it would have been an entirely wrong thing for an employee in Mr Casari's position to have taken such a photo, had the means been available. 102 It is undeniable, it seems to me, that in 2007, plain commonsense would have informed anyone that an employee of a hospital taking a photo of a naked, ill child, admitted to the emergency department of a hospital, was entirely inappropriate. That there were other adults in the vicinity and that Mr Casari did not seek to hide what he did, does not alter the fact that to take a photo of any patient, let alone a child, is to take improper advantage of a person admitted to a hospital. 103 To take any patient's photo without their prior permission being sought and obtained, is unarguably wrong. A person in that situation is in a particularly vulnerable position, which ought not to be taken advantage of. That is only more so, in the case of a two year old child, who is simply too young to protest, if a stranger seeks to take his or her photograph. The situation is only made worse, when the photo taken is of a naked patient, whether an adult or a child. 104 In 2007, it is unarguable that commonsense also told us that in the case of a child admitted to hospital, no photos should be taken by any stranger, without the parent's permission, or at the least, that of the hospital staff who have the care of the child, if the parent is absent, whether or not the child is clothed. 105 Mr Arroyo gave evidence of his experiences of the care which wardorderlies had to take in their dealings with all patients at the hospital, while unclothed, but particularly children, a matter he also said was one of commonsense, both for the protection of the child and the employee. That evidence was consistent with the evidence of Ms Chies. 106 On Mr Casari's evidence, he had no reason to approach the child on 6 July, having not been asked to perform any work which would require him to do anything for the child. His evidence was that he was in the area to deal with linen, although other witnesses doubted that there was in fact then such a reason for him being there. On his evidence, his attention was drawn to the child by a noise which he made and because he found the child's behaviour fascinating, not because he had any work related need to approach the child. 107 That anyone observing him approach the child's cot, would have anticipated that Mr Casari intended to take a photo of the child, using his mobile phone, is most unlikely. There was a known policy against using mobile phones in place. 108 Ms Revis' evidence was that what she observed Mr Casari doing, happened quickly, as she was taking something, medicine she thought, to the doctor treating the second child in the area. She was concerned by what happened. It was not appropriate for her then to mention it to Dr Milligan, who was treating the second child. She felt, however, that she had to say something to Mr Casari, which she was able to do about 10 minutes later and, given their conversation, then felt that it was necessary to report the incident. 109 It was not in issue that this accorded with Nurse Revis' obligations under the respondent's Code of Conduct and its Child Protection policy. There was no suggestion that Nurse Revis had done anything wrong in her approach to what she was confronted with. On her evidence, she did not say anything to Mr Casari when she first saw what he had done because she was shocked and he left. That evidence must be accepted as reflecting her reaction. Mr Casari was a man many years her senior. Even when giving her evidence she was 25, having then had only two and a half years' nursing experience. On Ms Chies' evidence, Nurse Revis was disturbed by what had happened, as Ms Chies would have been, in her position. 110 It does not require a written policy to warn employees about every obvious commonsense thing that they should not do, in their employment. In this instance, however, the respondent had signs prominently displayed in the Emergency Department, warning that mobile phones were not to be used. On his evidence, Mr Arroyo did not even take his mobile phone to work, because they were not to be used where he and Mr Casari worked. I am unable to accept Mr Casari's evidence that he had not seen such signs and that he was not aware that he ought not to have taken photographs with his phone. Indeed, finally Mr Casari conceded that he was aware of the policy. 111 Plainly, Mr Casari's phone should not have been switched on while he was at work, because it could interfere with hospital equipment. Further, the idea that any hospital employee would take a photo of a naked patient, using a mobile phone, is so unlikely an event, that it cannot have been within the reasonable contemplation of anyone observing Mr Casari's approach to the child. 112 There can be no doubt that what Mr Casari did was a serious breach of the child's privacy, as well as the obligation which the respondent had to care for the child, while his father stepped out of the Emergency Department to get a drink. The conduct was never denied and Mr Casari advanced no plausible explanation for what he had done. I am entirely satisfied that the photo need not have been taken for sexual gratification, in order for its taking to have involved serious misconduct. 113 Mr Casari, however, even in these proceedings, by his explanation and evidence in cross examination, plainly does not accept this reality. He acknowledged that it was stupid and a mistake, but that is really an acceptance of the consequences of his conduct, approached from his own perspective. So far as the child was concerned, his view was that he had not himself done any wrong. Mr Casari was cross examined as to his approach to the naked child. His evidence, in cross examination, was: Q. In the course of your duties you had no reason to approach this child at all, did you? A. I didn't know that. Q. There was no duty to perform, there was no job to do? A. I disagree with you. If a patient is naked, first of all, the curtain have to be drawn because the patient is exposed to the public. When I pass nearby the child, the child was exposed to the public, no nappies, nothing. It is not my problem, I didn't remove the child's clothes, I didn't pull the curtain. The curtain was drawn and the child was exposed. So I ask the nurses why the child is exposed like that. 114 This evidence is not to be understood as indicating that Mr Casari asked any nurse present anything about the child, or whether he could approach him, or take his photograph. Rather, he was assigning responsibility for the child's state of undress, which he was able to observe as he did, to the nurses. Later in his cross examination, Mr Casari insisted that he had not invaded the child's privacy, because the child was exposed to view. 115 On the evidence, the child was not being exposed to the public. He had not been left in a public place, but in a cot in the Emergency Department of a hospital, under the care of a nurse, so that he could be treated as his condition required. Mr Casari had access to that Emergency Department only because of his employment, not because he was a member of the public. He had no duties to perform in connection with this child. The child was unclothed, because of its illness and its nappy had been removed, in order that a urine sample could be collected. The curtain was open because the child's father had stepped out and Nurse Revis had two children to care for; she had to be able to keep the child under observation so that she could collect the sample. 116 Contrary to the submissions advanced, in reality this evidence shows an inability on Mr Casari's part to accept that what he did was wrong, or even inappropriate. On any view, consistently with his own explanations, in cross examination, what Mr Casari did was not for the benefit of the child, or of the respondent, but for his own benefit. In circumstances where he ought not have had a phone at work and where his work did not require him, or permit him, to work with a child patient in the absence of a nurse, let alone to take photos of patients, particularly while they were naked, he took a photo of a sick, naked child, without first seeking or obtaining the permission of the child's parent or of the nurse caring for the child. 117 It is in that context that I have concluded that the respondent met the onus of establishing that when it acted to dismiss Mr Casari, misconduct warranting summary dismissal had occurred. 118 At that time the photo was not available to the employer. It came to the view that serious and wilful misconduct had occurred, and that it could not be satisfied that Mr Casari's protestations that he had not had any sexual intent in taking the photo, had been established as having a foundation in the circumstances. Given what was known to the respondent, I am satisfied that those conclusions were properly available to it. 119 That the respondent was unable to come to a favourable conclusion, so far as Mr Casari's intentions were concerned, it seems to me, was entirely understandable in the circumstances with which it was confronted. On any view, what Mr Casari had done was extraordinary. Even if true, his explanations of his motivation were peculiar and concerned only with himself, not with his work or with the child's welfare. They could not establish that there had not been serious and wilful misconduct. To the contrary, there was no question that it was as the result of a deliberate decision on Mr Casari's part, that the photo was taken, even though Mr Casari knew he ought not to have been using his phone in the Emergency Department, let alone for such purpose. 120 That the respondent was doubtful about the explanation which he advanced in relation to he having had no sexual, or other ill intent in taking the photo, seems to me understandable in the circumstances. Did Mr Casari establish an innocent motivation for his conduct in these proceedings? 121 Given Mr Casari's evidence, there can be no doubt that the decision to take the child's photo was a deliberate one. It involved the use of Mr Casari's phone, when he knew he ought not to have done so. Taking such a photo had nothing to do with his work. Mr Casari accepted in these proceedings that what he had done was wrong and foolish, but he claimed, nevertheless innocent. The photo was in evidence, showing that the child was naked. It corroborated Mr Casari's denials that it had included the child's private parts. 122 Given the respondent's approach to this issue, the evidence as to Mr Casari's motivation in taking the photo, largely came from his evidence in chief. Was his evidence believable? He was not cross examined on this evidence, it not being the respondent's aim to establish in these proceedings that he had a sexual motivation for taking the photo. 123 It follows that the answer to the question must depend on the impression formed of Mr Casari's veracity as a witness. There were difficulties in that regard, as I have mentioned. They included Mr Casari's evidence in relation to his command of English, his awareness of a policy against use of mobile phones and whether he saw Nurse Revis speaking to Ms Lim when he entered the room, as he claimed. 124 In coming to the conclusion that I had to accept Ms Revis' evidence, that she was in the nurses' station when Mr Casari entered and that she was not at the other end of the room, talking to Ms Lim, as was Mr Casari's evidence, I have had regard to the fact that Ms Lim was one of the two senior employees at the Hospital who were investigating what had occurred that day. Having her present to observe Mr Casari taking the photo, was plainly relevant to his claim that he had done nothing wrong, to the contrary, he had taken the photo in the open, not hiding from her what he was doing. 125 While it was finally submitted for Mr Casari that he could have been mistaken as to her identity, because the person Ms Revis was speaking to, who could have been either an English doctor, Dr Milligan, or the parent of the other child in the ward, could have been Chinese, takes no account of the fact that Mr Casari was well aware of who Ms Lim was, when he identified her as having been present, given her then role in the investigation. Even when being cross examined, he again identified the person to whom Ms Revis was speaking as Ms Lim, she having been present in the courtroom earlier that day, insisting 'I know she was there' and that he did not want to change his evidence because Ms Revis and Ms Lim denied that Ms Lim was there. In that light, I am unable to accept the submission that Mr Casari in so naming Ms Lim, can simply be treated as 'probably a case of mistaken identity'. 126 There was certainly no doubt on the evidence that Mr Casari would have had reason to believe that nursing staff were on hand to take care of the child in the Emergency Department, whether or not he had observed them on entering. Mr Casari thereby sought to establish that he had no guilty intention, or 'guilty mind' in taking the photo. Accepting Nurse Revis' evidence, as I do, it would appear that when Mr Casari entered, he saw no-one other than the child in the cot, even though he must have believed that nurses were nearby. He plainly took an opportunity which then presented itself, to take the child's photo, despite the respondent's policy that mobile phones were not to be used, as I have explained. Had there been an adult present, it is inconceivable that he would have done so. 127 Mr Casari took the photo, on his case, not considering whether his actions were wrong, only because he found the 'joyous' child so fascinating and he wanted to pay it attention. Despite this curious motivation, he left immediately after he had taken the photo, came to the view that he had no use for the photo and deleted it, even before approached by Nurse Revis. When approached by Mr Schembri and Ms Chies, despite his innocent motivation, it then became apparent to him that his motivation could be misunderstood and so he himself raised the issue of child pornography, in order to assure the respondent that this had not been his intent. All he had done was to take a photo of a child who had fascinated him. 128 It has to be observed that the explanation is rather incredible. It is advanced to demonstrate the unfairness of the decision made by the respondent, it being submitted that the reasonableness of the respondent's actions in coming to the conclusion that misconduct warranting summary dismissal had occurred, was not relevant to that question, as the respondent argued. 129 I have already explained that in my view, even absent an intention of taking the photo for the purpose of sexual gratification, that involved serious misconduct on Mr Casari's part, which warranted summary dismissal. Given the way in which the case was conducted and the difficulties with Mr Casari's evidence, I find myself unable to come to a positive view as to Mr Casari's intentions. Nothing finally turns on this because, even were I to accept the view urged for Mr Casari as to his motivation, it could have no impact on the conclusion that there had, in any event, been serious misconduct which entitled the respondent to dismiss Mr Casari as it did. Was the decision to dismiss unfair? 130 That Mr Casari in fact quickly came to an appreciation of the seriousness of what he had done, was apparent from what he volunteered as to his motivation in his interview with Mr Schembri and Ms Lim. While the photo which he took was not available to the respondent, it was here in evidence. 131 Mr Casari's evidence was that he had deleted the photo immediately after he left the child and before Ms Revis spoke to him. This evidence was somewhat implausible, given Mr Casari's stated views, even now, that what he had done was not wrong. He explained that he deleted the image immediately after taking the photo, before Ms Revis spoke to him, because he then realised that he had no use or interest in it, he did not take the photo for his own purposes, but merely in order to pay attention to the child. 132 The photo was certainly deleted before Mr Casari spoke to Mr Schembri. Once he had spoken to Ms Revis, Mr Casari became aware that there was a problem with what he had done. This was confirmed by the respondent's investigation that day, culminating in his interview. In cross examination, Mr Casari explained that he had to wait for some 15 minutes before being called into a room by Mr Schembri, during which time he became concerned that he would be accused of having taken the photo for pornographic purposes. He was anxious to make sure that it was understood that this had not been his intention and so raised this with Mr Schembri, only in order to deny it. The decision to suspend him was then made, in order that the investigation could be pursued. The police were then called in. Mr Casari was later charged, but was acquitted. What occurred in the criminal trial was not put in evidence, although in cross examination Ms Revis was taken to a part of her evidence there, as I have explained. 133 The fact that after the dismissal he was acquitted of a criminal charge in relation to the events here in question, does not establish that the dismissal was 'harsh, unreasonable or unjust'. Just as the question for an employer as to whether or not to dismiss an employee, is a different question to that of whether or not an employee has committed an offence, the question of whether the decision to dismiss was a fair one, in all of the circumstances, is also a different one. The onus in that respect, fell on Mr Casari, as the applicant. 134 Mr Casari's case was that the dismissal was an overreaction by the respondent to a trivial incident, resulting in severe consequences, entirely out of proportion to what had led to the dismissal. 135 I have earnestly considered those submissions. Mr Casari is a 64 year old man, who had been employed for over a decade by the respondent, as a wardorderlie, without real difficulty. Given the nature of the duties he performed with people sick enough to require hospitalisation, I accept that he had important responsibilities, which he must have performed properly over that time, given that his employment persisted without real difficulty. This history cannot be overlooked in considering Mr Casari's claims. 136 I cannot, however, accept that the incident was trivial, as was argued, for reasons which I have explained. Nor do I accept that unless it be established that Mr Casari had intended sexual misconduct, in taking the photo in question, the conclusion that the dismissal was harsh and unjust must follow. I do accept that Mr Casari regards the consequences of his dismissal as out of proportion to his actions, given the consequences. They include the notification given to the Commissioner for Children and Young People, with the consequences which follow. The evidence showed that Mr Casari was much affected by his dismissal and the criminal charge which he later faced, and has had difficulty in pursuing other employment, as a result. 137 That is regrettable, but, in my conclusion cannot outweigh the seriousness of the misconduct here in question. Recently, in Director of Public Employment by His Agent The Director-General of The Department Of Juvenile Justice and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (On Behalf of Elvin Brian Brown) [2008] NSWIRComm 221, in considering the statutory test, reference was made by the Full Bench to the observations of the High Court in Byrne v Australian Airlines Limited (1995) 185 CLR 410, where it was observed at 465 and 467: ... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. … In Bostik (Australia) Pty Ltd v Gorgevski [No 1] (1992) 36 FCR 20 at 28, a decision of the Full Federal Court, Sheppard and Heerey JJ said of the phrase "harsh, unjust or unreasonable" as it appeared in the Manufacturing Grocers Award 1985: "These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct." The above propositions should be accepted as applicable to the present appeals. However, it should be emphasised that the present task is to construe the Award and that nothing now said necessarily determines the meaning of the phrase "harsh, unjust or unreasonable" in any other setting. 138 In this statutory scheme, in coming to a conclusion as to whether it has been established that a dismissal was harsh, unjust or unreasonable, the requirements of s 88, earlier referred to, must be considered. They, too, emphasise the position of the employer and how the decision to dismiss came to be made, including the way in which the dismissal was approached; the opportunity afforded to the employee to explain the conduct in question and the type of employment in question. 139 Here there is no question that the conduct involved entirely wrong advantage being taken of a vulnerable child, for reasons which were inexplicable, despite the explanation advanced. On any view, what Mr Casari did was entirely for his own purposes. That the child was not harmed, is a pertinent consideration, of course. Yet that does not excuse Mr Casari's conduct, conduct which, in reality, put the respondent in real and serious breach of its obligations to the child and its parents. Given the case advanced and his evidence, Mr Casari still does not accept that conduct for what it was. 140 The public interest, which must always be considered when the Commission is exercising its discretions under the Act, cannot sensibly permit this conduct being effectively condoned by this Commission, which would unarguably be the result, were the conclusion reached that despite the seriousness of the misconduct, the dismissal was harsh, unjust or unreasonable (see s 146(2) of the Act). I am entirely satisfied that the conduct in question was sufficient to warrant Mr Casari's summary dismissal for misconduct and unable to accept that a basis was established on the evidence, for a finding that the dismissal was harsh, unjust or unreasonable, despite the consequences of the loss of his employment, for Mr Casari. 141 I finally note that the respondent also addressed submissions going to the impossibility of any order as to reinstatement or re-employment, if I were to come to any contrary view. It is strictly unnecessary for me to consider those submissions, given the conclusions which I have reached. Had I come to any other conclusion, I am satisfied that in the circumstances, there could be no basis upon which it could be concluded that the respondent's necessary confidence in Mr Casari's judgment, could be restored. Given his duties with sick patients, who depend on his judgment for their welfare while admitted to the respondent's hospital, no conclusion other than that an order of either reinstatement or re-employment would not be practicable, is open. 142 I have been unable, however, to come to the view that Mr Casari established that his dismissal was unfair, on the evidence and so it is unnecessary to deal any further with matters such as these. Orders 143 For the reasons given, I find that the applicant did not demonstrate that the decision to dismiss him was harsh, unreasonable or unjust. 144 Accordingly, the application must be dismissed. I order accordingly. ------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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