Industrial Relations Commission of New South Wales CITATION: John Buchtmann v Ambulance Service of New South Wales [2006] NSWIRComm 1052 APPLICANT PARTIES: John Butchmann RESPONDENT Ambulance Service of New South Wales FILE NUMBER(S): 7122 of 2004 CORAM: Macdonald C CATCHWORDS: Unfair dismissal - nine charges/findings against Applicant - one charge being an assault against another ambulance officer - Applicant denied assault - witnesses gave conflicting evidence as to whether there was an assault - Briginshaw standard of proof - Onus on Respondent - Onus not satisfied - reinstatement ordered. LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336 Outboard World Pty Ltd (t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 HEARING DATES: 11/10/05, 14/10/05, 30/1/06 & 31/1/06 DATE OF JUDGMENT: 05/31/2006 APPLICANT Mr J Murphy (barrister) LEGAL REPRESENTATIVES: Mr B Morgan (union official) RESPONDENT Ms E Brus (barrister) DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MACDONALD C 31 May 2006 Matter No IRC 7122 of 2004 Health Services Union (on behalf of John William Buchtmann) and the Ambulance Service of New South Wales Application by Health Services Union on behalf of its member John William Buchtmann re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 D E C I S I O N [2006] NSWIRComm 1052 1 This decision concerns an application by the Health Services Union ("the Union") on behalf of its member, John William Buchtmann, with respect to unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). The Respondent in the proceedings is the Ambulance Service of New South Wales. 2 The matter was set down for Conciliation and Directions on 10 January 2005. The Applicant appeared and was represented by the Health Services Union ("the Union"), in the person of Mr B Morgan. The Respondent was represented by Ms Ashelford and Mr K Lennox. 3 The matter did not settle and a Hearing program was put in place. Mr Morgan also sought and was granted a Preliminary Hearing on the issue as to whether, in fact, the Applicant had been terminated. Mr Morgan was directed to file a Notice of Motion and the Preliminary Hearing was set down for the following week. 4 A Notice of Motion was duly filed by the Union and relevantly stated the Union's relief as follows: "That the Ambulance Service of NSW be ordered not to dismiss John William Buchtmann." 5 The Preliminary Hearing was held on 18 January 2005. On that day, Mr Morgan tendered the Draft Orders being sought. The Draft Order was as follows: " Pursuant to section 89(7), the Commission orders the Ambulance Service of New South Wales not to dismiss John William Buchtmann in accordance with the threat contained in its letter to him dated 18 November 2004 prior to the Commission hearing the merits in matter IRC 7122 of 2004 ." Mr Morgan also called the Applicant to give evidence. The Respondent was represented by Ms E Brus, barrister. No witnesses were called by the Respondent. However, a statement of Ms Louise Ashelford was tendered, without objection from the Union. Ms Ashelford is an employee of the Respondent and had an involvement in the dismissal process of the Applicant. 6 The Commission issued a decision on 19 January 2005 on the preliminary issued raised by the Union. The Commission rejected the Union's application for injunctive relief and found that Mr Buchtmann had indeed already been dismissed by the Respondent [(2005) NSWIRComm 1018] 7 The three day Hearing set down for May 2005 was vacated at the request of the Union. Four different dates were set for the Hearing - September and October 2005. Subsequently, those new Hearing days were amended, so that the Hearing would be October and December 2005. Eventually, the Hearing in December (one day) was vacated and two additional days set down for January 2006. The Hearing dates were: 11 & 14 October 2005 and 30 and 31 January 2006. 8 At the Hearing, the Union was represented by Mr J Murphy, barrister - assisted by Mr B Morgan, union official. Mr Murphy called the following witnesses: · John Buchtmann - the Applicant · James Stevenson - retired ambulance officer · Duanne Phillips, Leading Senior Constable, NSW Police Service The Respondent was represented by Ms Brus, barrister, who called the following witnesses: · Marion O'Connell - Manager of the Professional Standards and Conduct Unit · Amy Wykes - the motorcyclist accident victim · Michael Fifield-Smith - ambulance officer · Anthony Hardy - ambulance officer · Colin Smith - colleague of Amy Wykes · Trent Speering - ambulance officer BACKGROUND 9 The Applicant began his employment with the Respondent in 1981 and he was terminated by letter of 18 November 2004. 10 The Applicant was an ambulance officer for 23 years standing; a trained paramedic; a certified rescue officer; and founding member of the Penrith Volunteer Rescue Association. 11 The Applicant was on suspension from duty when the Glenmore Park incident took place and which resulted in his dismissal. He had been suspended from duty pending an inquiry into an incident that occurred in the Penrith police cells on 10 May 2003. 12 The Glenmore Park incident took place on 19 April 2004. The incident arose out of a female motorcyclist (Amy Wykes) coming off her bike at night. Ambulance officers (in particular, a Trent Speering) and the police were in attendance when the Applicant arrived in his capacity as a volunteer rescue association person. He approached Trent Speering who was attending the downed motorcyclist. 13 There was a fundamental dispute before the Commission as to what type of physical contact took place between the Applicant and Trent Speering. The Applicant deposed he came up behind and beside Speering and tapped him on the shoulder and said, "What have we got?" or similar words. Trent Speering deposed that the Applicant hit him and with enough force to make Speering lose his balance and tip him to one side. This caused Speering to move the head and neck of the patient. The Applicant denied Trent Speering's version of the events. 14 The Applicant subsequently was suspended from duty arising out of a charge that he had hit Speering. There were other charges made. An enquiry was conducted by a Sydney barrister by the name of John Clarke. 15 Arising out of that enquiry, the Applicant was dismissed by letter of 18 November 2004. The letter was signed Mr Greg Rochford, Chief Executive Officer. The letter stated that seven charges made against the Applicant had been established to the satisfaction of the Respondent. FINAL SUBMISSIONS For the Applicant 16 Mr Murphy, barrister, put the following submissions on behalf of the Applicant: (a) The Applicant was an ambulance officer of 23 years standing. He is a trained paramedic; a certified rescue officer; chairman of the Metropolitan Area Occupational Health and Safety Committee; and founding member of the Penrith Volunteer Rescue Association. (b) There had been several investigations by the Respondent against the Applicant about past incidents and the outcomes were adverse to the Applicant. These incidents were separate to the incident that led to the Applicant's dismissal. Mr Murphy said of these past incidents that they had the theme of having investigations and outcomes which demonstrated procedural and/or substantive unfairness being visited upon the Applicant. (c) The incident which led to the Applicant's dismissal was the Glenmore Park incident. A female motorcyclist had come down and was being attended by ambulance officer, Mr Speering. An allegation was made by Mr Speering that he had been struck by the Applicant, which the Applicant denied. Witnesses to the incident gave inconsistent versions of the incident. But there was one witness, Mr Murphy said, whose evidence was reliable and independent. This was the evidence of the police officer. The charge against the Applicant about this incident and the investigation into the same, demonstrated the continuing theme of unfairness being visited upon the Applicant by the Respondent. There was an onus on the Respondent to prove that the alleged misconduct had occurred. That onus was the Briginshaw standard, said Mr Murphy. (d) The remedy sought by the Applicant was reinstatement and full back pay. For the Respondent 17 Ms Brus, barrister, put the following submissions on behalf of the Respondent: (a) As to the Glenmore Park incident it was rejected that there had been a denial of procedural fairness in the investigation of this incident. The Union made no complaint about that issue during the committee of inquiry by a Mr Clarke, barrister, into the Glenmore Park incident. Mr Clarke had also made several attempts (to no avail) to contact the police officers who attended the Glenmore Park incident - to obtain their evidence, if any, about the incident. (b) The Applicant attended the Glenmore Park incident in his capacity as a member of the Volunteer Rescue Association. He was not working as an ambulance officer at the time because he was on sick leave. He was on sick leave during a period of suspension from duties. He was suspended from duties pending finalisation of the issue of a reprimand arising out of Mr Hardy's complaint about the Applicant's handling of a prisoner at the Penrith police cells. Ms Brus submitted that the Applicant was on sick leave at the time of the Glenmore Park incident because he thought the reprimand monumentally unfair. (c) There was conflicting evidence about the Glenmore Park incident. On the one hand is the evidence of Mr Speering, Mr Fifield-Smith, Mr Colin Smith and Ms Amy Wykes. On the other hand is the evidence of the Applicant and Constable Phillips. Ms Brus submitted that the evidence of the police officer was not to be preferred simply because he was a police officer. And he was no closer to the action than anybody else. He was directing traffic and not in a position to see everything that went on. Ms Brus submitted that the time taken for the blow that the Respondent said took place, would have been less than a second. The Commission should prefer the evidence of the former four named witnesses, to that of the Applicant. (d) Following the Glenmore Park incident, the Applicant telephoned senior officers of the Respondent. Ms Brus asked why would the Applicant do so, given that he claims that nothing unremarkable occurred between him and Mr Speering - that is, he said he did not strike Mr Speering. Ms Brus submitted that the Applicant contacted these senior officers because he had gone into damage control. (e) The Applicant had attended the Glenmore Park incident in his capacity as a member of the Volunteer Rescue Association. This capacity represented secondary employment and he had no permission from the Respondent to do so. (f) The Respondent opposed the remedy of reinstatement. As well, Ms Brus submitted that evidence given by the Applicant showed that he was effectively stating that he was distrustful of senior management. Should the Commission consider financial compensation, the evidence showed that the Applicant had not mitigated his loss by his own choice. Applicant in Reply 18 Mr Murphy, for the Applicant, put the following submissions in reply: (a) Mr Clarke, the barrister who conducted the inquiry into the Glenmore Park incident, made a finding that Mr Winfield (a senior officer of the Respondent) had not given permission for the Applicant to engage in secondary employment. However, the evidence of Mr Winfield was that he could not say he had given an order or direction to the Applicant not to engage in secondary employment. (b) Mr Murphy rejected that Mr Clarke had made several attempts to contact the police who had attended the Glenmore Park incident. The evidence was that he attempted to contact an off duty female police officer who was wearing a brown dress. Mr Murphy reiterated that Mr Clarke made no attempt to contact the police officers who were on duty at the incident. (c) The evidence of Constable Phillips is that if he had seen a blow delivered by the Applicant to Mr Speering, then the Constable would have seen it. He did not see the blow, because it did not happen. The constable was not distracted by his trafficking duties because traffic was light. (d) As to why the Applicant had contacted senior officers of the Respondent following the incident, it was rejected that he did so for reason of damage control. The Applicant contacted these senior officers because he knew that Mr Speering was a person who would complain. On top of that, the Applicant had a concern about the history of reprimands and warnings in the past over events for which he had no opportunity to defend himself. (e) Mr Speering is an ambulance officer not without some history of difficulty. He had been reprimanded over an assault. (f) As to the failure of the Applicant to mitigate his loss, he only has one qualification and that's ambulance officer. He does not have a lot of options for performing other jobs. CONSIDERATION 19 The Applicant allegedly hit his fellow officer, Speering, on 19 April 2004. Speering was attending a downed motor cyclist and was holding her head at the time. 20 By letter of 22 April 2004, signed by Greg Rochford, Chief Executive Officer, the Applicant was informed of charges against him - that an inquiry would be carried out into these charges - and he was on paid suspension from 22 April, until the charges have been dealt with. (Ex 3 - Vol 1, Attach B) 21 There were four (4) charges specified. The first charge concerned the 19 April 2004 alleged assault: " ... you hit Ambulance Officer Trent Speering on the shoulder whilst Officer Speering was holding an injured woman's head, after Officer Speering informed you that your services as a member of the Volunteer Rescue Association were not required." (emphasis added) (The Applicant was a founding member of the Penrith Volunteer Rescue Association ("VRA") whose "office" was located in his home. Whilst at home he heard a Code 9 alert: that is, that there was a trapped person involved in an accident. The Applicant attended the accident site in his capacity as a member of the VRA. The motor cyclist was not, as it turned out, trapped. At the time, he was also on sick leave). 22 The three other charges concerned three incidents involving the Applicant and shared a common theme, being that: whilst on sick leave, he undertook secondary employment with the VRA, without written approval of the NSW Ambulance Service (the Respondent). 23 The inquiry into the four (4) above charges was carried out by a barrister, John Clark ("the Clark Inquiry"). His Report on that inquiry was delivered to the Respondent on 6 September 2004. (Ex 3 - Vol 1, Attach E, Tab 1) Mr Rochford, Chief Executive Officer, wrote to the Applicant on 30 September 2004, advising that the original four charges against the Applicant were now seven charges. A process for responding to those charges was set out. (Ex 1) The Union responded to Rochford's 30 September 2004 letter and denied that the Applicant had breached any discipline with which he was charged and he requested an interview to discuss these charges. (Ex 2) 24 By letter of 18 November 2004, signed by Greg Rochford, Chief Executive Officer, the Applicant was advised of Rochford's determination arising out of the Committee of Inquiry Report into the charges against the Applicant and the responses given by the Applicant and the Union to the Clark Inquiry. (Ex 3 - Vol 1, Attach A) Rochford advised of his determination that the Applicant should be dismissed. The Applicant was indeed dismissed. 25 This dismissal letter specified seven (7) charges and Rochford stated that all seven (7) charges had been established to the satisfaction of the Service. 26 One of those seven charges/findings concerned the 19 April 2004 motor cycle accident at Glenmore Park: "... you did strike Ambulance Officer Trent Speering a violent blow on the left shoulder while Speering was holding immobile the head of a patient with suspected spinal injuries." (emphasis added) The Commission notes that the original charge specified a " hit " but now the charge/finding is described as a " strike ". During proceedings, it seemed to the Commission that nothing turned on these two words - that is, they were interchangeable descriptions. The Commission also notes that the hit or strike is now characterised as " a violent blow ". That description was missing from the original charge. 27 The six other charges (and about which adverse findings were made), are a repeat of the three charges with which the Applicant was charged, by letter of 22 April 2004. However, each of the original three charges seems to have been split into two charges. 28 The Commission understands from the proceedings, that the seven charges (and indeed the findings) are as follows: (a) Three charges of being engaged in secondary employment without the written permission of the Respondent and three instances (dates) are cited as evidence. The secondary employment is working for the VRA. (b) Three charges of engaging in secondary employment contrary to a verbal direction surrounding each charge, not to do so. The three charges refer to the same three instances (dates) as for (a) above. (c) One charge of striking Speering a violent blow on the shoulder. ("the assault") 29 The Commission will firstly consider the assault charge. THE ASSAULT CHARGE The Glenmore Park Motor Cycle Incident 30 There were nine witnesses involved in the proceedings and six of those witnesses were involved in the motor cycle incident of 19 April 2004. Those six witnesses were: Amy Wykes (the downed motor cyclist), Trent Speering (ambulance officer), Michael Fifield-Smith (ambulance officer), Colin Smith (a colleague of Ms Wykes), John Buchtmann (the Applicant) and Duanne Phillips (police officer). 31 Briefly put, the scene that night of 19 April was as follows: (a) Ms Wykes lay on the ground on her stomach (the prone position) following the accident. Colin Smith (a colleague) arrived on the scene a few minutes later. He and Ms Wykes are part of an entertainment group who were on their way to a show to perform. (b) The ambulance officers, Speering and Fifield-Smith arrived and attended the victim. Their primary, initial concern was whether she had suffered spinal injury. She was later turned over onto her back (the supine position). When this rollover was done, it would appear that a spinal board was placed against her back, part way through the roll, so that she came to rest on the spineboard - on her back. Speering was kneeling at her head. Fifield-Smith was at or near the other end of her body. The crash helmet was removed from her head prior to the rollover. (c) Leading Senior Constable Phillips arrived on the scene and remained nearby Ms Wykes and the others - Speering, Fifield-Smith and Colin Smith. There were two other police officers at the scene when Phillips arrived. They were directing traffic and were not nearby to Ms Wykes and the others. Perhaps one of these two officers assisted by bringing the spinal board to the two ambulance officers, but otherwise these two officers were not nearby when the alleged assault by the Applicant against Speering occurred. (d) After Phillips arrived, the Applicant came upon the scene in his voluntary rescue association ("VRA") vehicle. He responded to a code 9 (person trapped) radio call. He parked on the other side of the roadway. He alighted, walked across the road and over the meridian strip to the accident scene. (e) The Applicant came up to Speering, seems from behind, and tapped him on the shoulder to announce his presence. His presence was not required because Speering announced that the accident was not a code 9. (f) The alleged assault then took place - variously described as a hit, shove or strike-by the Applicant with his hand to the area of Speering's head/neck or shoulder area. (g) Speering said he was hit with force and such force as to effect his hold on Wykes' head. (h) Wykes deposed she felt a jolt, during the time that the Applicant was in attendance, but she could not see him. (i) Ambulance officer Fifield-Smith and the entertainment group colleague, Colin Smith, gave evidence as to what they saw and their evidence supported Speering's claim of an assault. The Applicant denied parts of this conversation. (j) Colin Smith gave evidence as to a conversation he had with the Applicant, following the assault. The Applicant denied parts of this conversation. (k) Colin Smith gave evidence as to the Applicant's departure from the scene: driving his VRA irresponsibly across the roadway, over the meridian strip and off in the opposite direction to where his VRA had been parked. The Applicant denied that he drove irresponsibly. (l) The accident, and the events described above that followed, took place at night time, around 8.30 pm. There was street lighting. 32 Of these six witnesses, one could not give evidence as to whether the Applicant had assaulted Trent Speering. This witness was Amy Wykes, the downed motor cyclist. At the time of the alleged assault, she was lying on her back, on the spinal board. To the best of the Commission's understanding, her crash helmet had already been removed when the Applicant arrived on the scene. She heard a conversation between the Applicant and Speering but did not see (and probably could not see) if an assault took place. 33 Of the remaining five witnesses who gave evidence, there is the claim of Speering of the assault on his person. The Applicant denied the assault. That left three witnesses. Two of those witnesses, Fifield-Smith (ambulance officer) and Colin Smith (a colleague of Wykes), gave evidence in support of Speering's claim of there being an assault on his person. The remaining witness to give evidence on the point, was Leading Senior Constable Phillips. He said that there was no punch or assault. 34 Setting aside for the time being, the claim of Speering and the denial of the Applicant, the Commission will consider the merit of the evidence of Fifield-Smith, Colin Smith and Phillips. Evidence of Police Officer Phillips 35 Police officer Phillips deposed that he observed the Applicant approach the ambulance officers who were kneeling down, treating the victim. He saw the Applicant place an open hand on the back shoulder blade of one of the ambulance officers (that is, "Speering - Macdonald C) and the Applicant appeared to have a short conversation with the officer. The Applicant walked away and as he did so, Speering turned towards Phillips' direction and said, " Did you see that? " Phillips said he was unaware of what Speering was talking about and so Phillips replied, " See what ." Speering continued to treat the victim. Phillips deposed that at no time did he see the Applicant strike or punch either of the ambulance officers ("Speering and Fifield-Smith" - Macdonald C). At no time did either ambulance officer report an assault to Phillips or the other police at the scene. From the time of the Applicant's arrival at the scene to the time he left, would have been no longer than five minutes, Phillips said. (Ex 11, paras 4 to 6) 36 In evidence-in-chief, Phillips said that he would have seen any strike or hit by the Applicant against Speering. (Tr 30/01/06 - p 2, line 55 to p 3, line 19) 37 Under cross-examination from Ms Brus, barrister for the Respondent, Phillips said: (a) He was involved in directing traffic but only watching for traffic coming down the road from Glenmore Parkway to where the patient was being treated. Traffic was light and he was not distracted by traffic and hence he was able to give evidence about the Applicant's appearance on the scene and exit. (b) It was night time, but the intersection where the patient lay, was well lit. Fifield-Smith told the Clark Inquiry that visibility was fairly good: Ex 3 - Vol 2, Attach E - TAB 28, p 28 of 32) (c) He was in very close proximity to the accident scene, and hence any punch or assault would have caught his attention. Even a big backhander (as opposed to a punch) would have caught his attention. (Tr 30/01/06 - p 6, line 58 to p 11, line 57) 38 The key evidence of police officer Phillips was that had there been a punch, assault or even a big back hander, he would have seen it. He did not change his evidence under cross-examination and in particular did not agree with Ms Brus that he could have been distracted by traffic and not observed the assault by the Applicant on Speering. Evidence of Ambulance Officer Fifield-Smith 39 Michael Fifield-Smith is an ambulance officer and was in attendance, with Trent Speering, at the scene of the downed motor cyclist. His witness statement (Ex 8) is very brief but refers to his transcript of interview, arising out of the Clark Inquiry, for his account of the events of 19 April 2004 at Glenmore Park: (Ex 3 - Vol 2, Attach E - Tab 28). The interview took place on 11 May 2004. 40 Attached to the transcript of interview are a few documents, one of which is a witness statement by Fifield-Smith made out at Penrith Police Station around 11.00 pm on 19 April 2004. Relevantly, he refers to the approach of the Applicant (Mr Buchtmann) at the accident scene: "5. ... I heard him (the Applicant) say to Trent (Speering), " What have you got?" I heard Trent reply "It's not a code nine ." 6. When Trent replied, it was done in a professional manner. I have then witnessed BUCHTMANN become very angry. BUCHTMANN has then hit Trent on his left shoulder, with the palm of his right hand . At the time I heard a loud thumping noise. I looked at Trent and he appeared to be in shock, and stunned. I saw BUCHTMANN walk off to my right side and he returned to his vehicle. I then looked down to see if the patient was ok and continued my assessment of the patient ." (emphasis added) In the transcript of interview, Fifield-Smith corrected the above extract from his police statement. He said he did not use the work " very " to describe the Applicant's anger. (Ex 3 - Vol 2, Attach E - Tab 28, page 30) 41 Under cross-examination, Fifield-Smith did not alter the central tenet of his police statement: that the Applicant hit Speering. He agreed that the Applicant had initially placed his right hand on Speering's shoulder for identification purpose but after a short exchange between the two, the Applicant had hit Speering on the shoulder (closer to the shoulder than the neck) with his right hand. (Tr 14/10/05 - p 85 to p 102, line 10) Fifield - Smith also described the hit as a "forceful slap" (p 101, line 20-22) However, also under cross-examination he agreed that if Speering had complained about being hit at the time (Speering said, " Did you see that? "), then Fifield-Smith would have remembered it, because of it being unusual. He had no clear recollection of hearing Speering's utterance. Further, the first time Fifield-Smith heard Speering complaining of being hit was at the police station, later that night. (Tr 14/10/05 - p 84, line 11 to 52) Fifield-Smith said he had a clear view of what happened between the Applicant and Speering. This is so, he said, because he paused his assessment of the patient, to look at the conversation between the Applicant and Speering as it was relevant as to what was going to happen next to the patient. (Tr 14/10/05 - p 93, line 29 to 34) Despite that, he had no recollection of Speering saying, " Did you see that? ", following upon the alleged assault which Fifield-Smith said he saw. Also Fifield-Smith was not sure whether he was tending the patient from her left or right side. (Tr 14/10/05 - p 92, line 54 to p 93, line 20) 42 Mr Murphy challenged the foregoing evidence that Fifield-Smith had witnessed an assault, by referring to a conversation that took place between Fifield-Smith and another witness, James Stevenson, retired ambulance officer. The conversation (concerning the 19 April incident) took place at a race-track, where those two officers were on stand-by duty. Mr Murphy put to Fifield-Smith that he had said to Stevenson, words to the effect: " I felt like they (the Clark Inquiry) did a job on me ." Fifield-Smith replied: " To be honest, I couldn't recall. " Mr Murphy asked that question again and was met with the same, " don't recall " response from Fifield-Smith. Mr Murphy then put that Stevenson asked what was meant by "doing a job on me" and that Fifield-Smith had responded, words to the effect: " I could not understand where the assault charge came from, all John (the Applicant) did was tap him. " Fifield- Smith responded to this suggestion from Mr Murphy as follows: " I don't think I would have said that ." Mr Murphy repeated the question and Fifield-Smith responded: " No, I don't believe I would have said the words "tapping". I've never associated the word "tapping" with the event that happened. " Murphy : " So do you deny saying those words? " Fifield-Smith : " I believe so, yes. I deny saying the word "tapping" or word to that effect." Murphy : " And do you deny saying, I cannot understand where the assault charge came from?" Fifield-Smith : " I don't recall." The cross-examination continued with Fifield-Smith giving these responses: " I don't recall " (if I said, " I cannot understand what all the fuss was about" (as to the assault allegation)) " And I may not have " (said words about the fuss statement above) " As I said, I don't recall what I actually said ." " I don't have any recall of the conversation ." " I don't think I would have said that " (that they were doing a job on me) " As I said, I don't recall the exact conversation " (between himself and Stevenson) (Tr 14/10/05 - p 102, line 12 to p 106, line 2) The Commission will comment on this line of questioning below. 43 Ms Brus had taken an objection to this line of questioning to Fifield-Smith because it was new evidence and had not been raised by Mr Stevenson when he gave his evidence to the Commission. His evidence came before that of Fifield-Smith. Stevenson had been called as a witness by the Union. 44 Mr Stevenson was recalled as a witness to give that new evidence. Ms Brus objected. The Commission allowed the recall on the basis as to what weight should be given to his evidence. His new evidence was in the form of a statutory declaration and dated 11 December 2004. (Ex 9) This exhibit related the race-track conversation of 24 November 2004 between Stevenson and Fifield-Smith. It alleged that Fifield-Smith had said that he felt that a job was being done on him and he could not understand the basis for the assault charge against the Applicant who had only tapped the shoulder of Speering. 45 Ms Brus challenged Stevenson that the racetrack conversation did not take place. Stevenson did not alter his evidence. He agreed he was a friend of the Applicant and said he was motivated to help the Applicant because of how the Respondent had treated the Applicant in the past with its incorrect allegations against him. 46 In considering the evidence of Fifield-Smith as to his witnessing the assault, the Commission needs to consider the counter-claim of Stevenson as to the race track conversation in which Stevenson deposed that Fifield-Smith could not understand the basis of the assault charge against the Applicant. There was also for consideration, Ms Brus' objection to Stevenson's new evidence being put on through the recall of this witness. As it turned out, the Commission has not had regard to the evidence of Stevenson given in the witness box. The Commission relied solely on Fifield-Smith's responses, under cross-examination, to Stevenson's allegation of the race-track conversation. 47 For the Commission, with the benefit of reading the transcript, what stands out about the evidence of Fifield-Smith, is the contrast in the certainty of his responses about the alleged assault, as opposed to the lack of certainty in his responses to the alleged race-track conversation concerning the assault. 48 When Fifield-Smith was cross-examined and challenged that no assault had taken place, he stood his ground. (Tr 14/10/05 - p 93, line 29 to p 94, line 53) and (p 101, line 13 to 43) But when Fifield-Smith was cross-examined on the race-track allegation (that there was no basis for the assault charge), he did not deny this allegation by Stevenson with certainty. The Commission extracted sections of the cross-examination above (see paragraph 42). These extracts went to the core issue as to whether Fifield-Smith had made particular statements to Stevenson and which statements were inconsistent to what he had given at the Clark Inquiry. For Fifield-Smith to say under cross-examination " To be honest, I couldn't recall ", to Stevenson's allegation that Fifield-Smith had said, " I felt like they did a job on me ," struck the Commission as being out of character to the certainty of his prior evidence. Eventually, after repeated questioning about the race-track conversation, Fifield-Smith said, " I don't think I would have said that " (that they were doing a job on me). It seemed to the Commission that the only response that Fifield-Smith could give to this allegation was an emphatic rejection/denial. Similarly, the Commission does not understand Fifield-Smith's eventual response of " I don't recall " to Stevenson's allegation that Fifield-Smith had said he " could not understand where the assault charge came from, all John did was tap him." Initially, he had responded, " I don't think I would have said that ". This has more certainty about it but under questioning from Mr Murphy, the eventual response from Fifield-Smith was, " I don't recall ". It seems to the Commission that the only response that Fifield-Smith could give to this allegation was an emphatic rejection/denial. 49 The Commission takes the view that these doubtful responses by Fifield-Smith cast doubt on his claim that he witnessed an assault by the Applicant on Speering. Evidence of Colin Smith 50 Colin Smith gave evidence about the alleged assault on Speering. (Ex 12) He knew the downed motorcyclist. They were both part of an entertainment group. They were on their way to a performance. He was following behind in a car and hence was on the scene before the ambulance of Speering and Fifield-Smith arrived. 51 Smith deposed that the Applicant (after the brief conversation with Speering about a code nine), "clipped" Speering "on the shoulder/head area"; told Speering to "Go and get fucked" and then walked off in a "huff" back to his car. He thought the hit was with an "open hand". The degree of force was unknown "but it was enough to move the officer's (Speering's) head." This concerned Smith because Speering was holding " Amy's head " (the downed motorcyclist). 52 Colin Smith was interviewed by John Clark on 6 May 2004. (Ex 3 - Vol 1, Attach E, TAB 26) 53 Under cross-examination, Smith did not alter his evidence as to the assault he claimed he witnessed. It was put to him that his concern for Amy's condition (possible spinal injury) and Speering's comment "Did you see that?" (after the Applicant allegedly assaulted Speering) - caused Smith to misinterpret what had actually transpired. Smith denied that this was so. (Tr 30/01/06 - pp 16 to 27) 54 Smith had also deposed as to what had occurred after the alleged assault. The Commission will consider these matters as Ms Brus said they supported the finding of an assault. 55 Smith said he immediately asked of the Applicant: "What do you think you're doing?" The Applicant continued to walk towards his VRA vehicle. The Applicant drove down the road a bit " chucked a U turn across the median-strip and then came back the other side where the accident was. As he came up at speed, I observed that he nearly ran into a back of another vehicle and I went to him and had a go at him and I said words to the effect, "What the fuck do you think you're doing? you're a clown ." He (the Applicant) said something back to me which I did not catch . I then turned around to the police officers who were there and said, "Did you see that?" Smith then said he spoke to Speering about the foregoing and Speering allegedly responded about the Applicant " Oh he's, he's a goose ." Speering asked if Smith could stay around and give his contact details. Smith agreed to do so. What do the other witnesses say of this account? 56 The Applicant deposed he had not sworn ("Go and get fucked") at all (let alone to Speering) (Ex 3 - para 27) Speering gave no evidence about the alleged swearing. He said nothing of it in his witness statement or record of interview. Fifield-Smith, the treating ambulance officer on the scene, gave no evidence of this alleged swearing in his statement or record of interview. Wykes, the downed motorcyclist, gave no evidence about the alleged swearing. Leading Senior Constable Phillips gave no evidence about the alleged swearing. 57 The Applicant agreed he had left the scene in his vehicle - he went up the road, over the island and turned around. The Applicant agreed that on returning to the scene from the other direction, that a civilian (Smith) stepped out in front and had a go at the Applicant with the words, "you've got a bad attitude." (Tr 11/10/05 - p 78, line 41 to p 79, line 12) 58 The Applicant was cross-examined by Ms Brus on the exchange between the Applicant and Smith and Ms Brus put it to him that the explanation for Smith's making adverse comments about the Applicant, was because the Applicant had hit Speering. The Applicant disagreed. (Tr 11/10/05 - p 87, lines 24 to 30) 59 After the Applicant had left the scene, he contacted by telephone, the Sydney operations centre. The reason for doing so, he said, was because he was astonished at Speering's behaviour. He was concerned that some form of complaint might be made by Speering against the Applicant. (Ex 3 - paras 30 & 31) Ms Brus put to the Applicant that the real reason for the telephone calls to officers of the Respondent, was " damage control ". That is, the Applicant knew that both Speering and a civilian witness could make a complaint against him. The Applicant disagreed. (Tr 11/10/05 - p 87, lines 32 to 45) The Commission notes that the Applicant had given evidence in examination-in-chief, that Speering had made a complaint against the Applicant for reprimanding Speering over a work incident. (Tr 11/10/05 - p 23, line 23 to p 24, line 18) (It also came out in cross-examination, that Fifield-Smith, the other ambulance officer working with Speering that night in question, had put a written complaint in about Speering for acting in an aggressive way to a patient's associates. (Tr 14/10/05 - p 106, line 17 to p 107, line 23)) Evidence of Trent Speering 60 Trent Speering deposed that the Applicant "hit" him and with enough force to make him lose his balance and cause him to move the head and neck of the patient (Amy Wykes). (Ex 13) Speering was interviewed by John Clark on 4 May 2004. (Ex 3 - Vol 1, Attach E, TAB 23) 61 Under cross-examination, Speering did not change his evidence that he had been hit by the Applicant. And whether it was a hit or a shove, it was done with such force as to cause him to lose balance and the patient's neck moved in the process. 62 Speering rejected that the Applicant tapped him on the shoulder when the latter first came on the scene. 63 Speering rejected that the Applicant tapped him on the shoulder, in a benign way, and he, Speering, flinched - thus causing the patient to feel a jolt. 64 Speering could not recall saying, "Did you see that?" (allegedly in response to the assault), but added he was not saying he did not speak those words. 65 Speering said he only felt one contact to his person (being the hit), as opposed to two separate hand contacts by the Applicant to Speering's shoulder area. 66 As to why he did not report the alleged assault to the police officers present at the scene, he said he was busy tending to the patient. 67 Speering rejected that he had been tapped on the shoulder, had flinched and blown the incident up out of all proportion. He rejected he had acted out of malice. 68 Mr Murphy raised with Speering that Speering had been reprimanded by the Respondent for an assault on another ambulance officer, Craig Thomas. (Ex 14) Speering denied he had assaulted Thomas. Speering was critical of the investigation into the allegation by the Respondent because of the latter's lack of independence. He said that ambulance management are not the most professional people in the world and are biased. The Respondent had got the finding of the assault against him, wrong. Speering said that Craig Thomas had made up a story of an assault against him. Speering denied he had made up a story against the Applicant, and there were independent witnesses to prove it, he said. (Tr 30/01/06 - p 27 to p 41) Evidence of the Applicant 69 The Applicant's evidence is comprised of witness statements (exhibits 3 and 4) and were accompanied by two volumes of material annexed to Ex 3. His record of interview by John Clark took place on 26 August 2004. (Ex 3 - Vol 1, Attach E, TAB 26) 70 The Applicant deposed that he approached Speering from behind and tapped him on the shoulder, which, he said, was a common gesture among ambulance officers to announce arrival, as it does not distract the officer from treatment or other activities. Accompanying the tap, the Applicant deposed he said "What have we got?" or similar words. He asserted that the tap was a light touch and could not be mistaken for a "hit" etc. He said the tap could not have affected Speering's position or posture. He stated that the " tap " is a standard practice for all emergency service personnel. The Applicant rejected that his action was the cause of the jolt felt by the downed motor-cyclist. The Applicant deposed that upon tapping Speering, he was met with a snappy, aggressive tone of reply: " You're not required. It's not a code 9. There's nobody trapped." After a further very brief conversation between the two, the Applicant said he left the scene immediately. (Ex 3 - paras 13 to 22) 71 Under cross-examination, the Applicant denied he had hit Speering. As recorded above, (paragraph 55) Ms Brus put to him that he had hit Speering and this was shown by the Applicant being approached by a civilian (Smith) who said: " What the fuck do you think you're doing, you're a clown ." The Applicant disagreed. Ms Brus put to him that he had hit Speering and this was shown by the Applicant going into damage control later that night, by telephoning officers of the Respondent - that is, the Applicant knew that Speering had a civilian witness to the alleged assault. The Applicant disagreed. (The Applicant had deposed (Ex 3 - paras 30 and 31) and given evidence-in-chief that Speering had made a complaint against the Applicant for reprimanding Speering over a work incident and hence the Applicant was concerned about another complaint from Speering). Summary of the Assault Charge Evidence against the Applicant 72 Trent Speering claimed that he had been assaulted by the Applicant, who denied that charge. Speering's assault claim was supported by his fellow ambulance officer, Fifield-Smith and the civilian, Colin Smith who is an entertainment colleague of the downed motor-cyclist, Amy Wykes. Amy Wykes did not see the interaction between the Applicant and Speering. Her evidence was that she felt a jolt. She could not give the cause for that jolt. The Applicant's claim that he had not assaulted Speering was supported by Leading Senior Constable Phillips. 73 Putting aside the claim of Speering and the denial of the Applicant, the Commission is faced with determining this assault charge claim based on the conflicting evidence of Fifield-Smith and Colin Smith on the one hand and Phillips on the other. 74 The evidence of Fifield-Smith that an assault had taken place was challenged by the Union witness, James Stevenson, who until his recent retirement, was an ambulance officer. Stevenson deposed as to a race-track conversation with Fifield-Smith, in which Fifield-Smith had allegedly wondered what all the fuss was about as the Applicant had only tapped Speering on the shoulder and that the Clark Inquiry had done a job on himself, Fifield-Smith. Thus Stevenson's allegation challenged Fifield-Smith's evidence given in the proceedings before myself. 75 When the Commission reviewed Fifield-Smith's evidence, per transcript, the Commission was struck by the contrast in the certainty of Fifield-Smith's responses about the alleged assault, as opposed to the lack of certainty in his responses to the alleged race-track conversation concerning the assault. The Commission could not understand his responses of doubt (such as "I don't recall") when it seemed to the Commission that Fifield-Smith could only give an emphatic denial/rejection, in order to be consistent with his previous testimony on the same issue. (see paragraphs 39 to 49 above). 76 The Commission accordingly takes the view that the doubtful responses by Fifield-Smith as to his recollection as to what he said to Stevenson at the race track, cast doubt on his claim that he witnessed an assault by the Applicant on Speering. Coupled with that, is his evidence that if Spearing had complained about being hit at the time (Speering said, "Did you see that?"), then Fifield-Smith would have remembered it, because of it being unusual. He had no clear recollection of hearing Speering's utterance. What struck the Commission as being odd about his not hearing Speering's utterance is: (a) Fifield-Smith said he had paused his assessment of the patient and was looking at the interaction between the Applicant and Speering. On this basis, he said he was able to say he saw the assault and yet did not hear Speering's uttered response to the alleged assault; (b) Fifield-Smith did not hear Speering's utterance and yet, because he was tending to the patient (along with Speering who was holding her head), he was within two metres of the interaction and hence Speering's utterance but he had no clear recollection of hearing the utterance; and (c) Fifield-Smith has no clear recollection of hearing the utterance but police offer Phillips (who was not as near to the interaction as Fifield-Smith), heard Speering's utterance and responded, "See what" (Ex 11, para 5) 77 Overall, the Commission's view of Fifield-Smith's evidence is that it is doubtful that he witnessed an assault on Speering by the Applicant. 78 There is, of course, the evidence of Colin Smith in support of an assault and Leading Senior Constable Phillips saying that if there had been an assault, he would have seen it. The assault was found by the Respondent to be a "violent blow" and given that description, it is plausible that the police officer would have seen a "violent blow". He saw no such thing. 79 In considering the claim of Speering that he had been hit and the Applicant's denial, there was nothing in their evidence that was determinative of whether an assault took place. 80 The Commission considered Ms Brus' scenario that an assault had taken place and the proof of that was the Applicant's later conduct on the night of the alleged assault, where he had telephoned officers of the Respondent and in doing so, she said, had gone into "damage control". 81 The Applicant had a plausible response to this "damage control" scenario. The Applicant's witness statement deposed of his concern that a complaint might be made against him by Speering because their relationship was not particularly friendly, (Ex 3 - paras 30 and 31) Under evidence-in-chief, the Applicant expanded on the foregoing. He said that Speering had made a complaint about the Applicant in his role as a paramedic when the two of them were attending the same incident. The Applicant had reprimanded Speering over the treatment of the patient and Speering had then complained to management. The Applicant then had a concern about the general history of Speering. (Tr 11/10/05 - p 23, line 23 to p 24, line 18) Because of that evidence, the "damage control" scenario was rejected as proof of the Applicant's assault. 82 The overall assessment of the evidence as to whether there was an assault, led the Commission to the conclusion that the Respondent had not made out its case that such an assault took place. Given the serious allegation by the Respondent that the Applicant had assaulted Speering (" a violent blow ") and the impact that that could have had on the downed motor cyclist (who may have had spinal injury), there needs to be substantive evidence produced by the Respondent to show that the Applicant did indeed assault Speering. The level of substantive evidence required is that level whereby the Commission is comfortably satisfied that the Applicant assaulted Speering. That standard of proof is the Briginshaw standard: Briginshaw v Briginshaw (1938) 60 CLR 336 at 354 - 369, per Dixon J. Accordingly, the Commission finds that the Respondent has not made out its case to that standard of proof. WORKING IN SECONDARY EMPLOYMENT WITHOUT PERMISSION 83 The Applicant had three charges/findings of engaging in secondary employment, without the written permission of the Respondent. The three charges cited three instances/dates: (a) That on 24 February 2004, the Applicant, whilst employed by the New South Wales VRA, attended a motor vehicle accident at Claremont Meadows NSW; and (b) That on 6 March 2004, the Applicant, whilst employed by the NSW VRA, attended a motor vehicle accident at Cambridge Park NSW; and (c) That on 19 April 2004, the Applicant, whilst employed by the NSW VRA, attended a motor vehicle accident at Glenmore Park NSW. This charge arises out of the downed motor-cyclist incident. 84 The first point to note about these three charges is that they cover a two month period: 24 February to 19 April 2004. 85 The second point to note is that the Applicant had obtained written permission in the past to engage in secondary employment (Ex 3 - para 57) In examination-in-chief, he expanded on this prior written permission being granted by the Respondent. He had received permission after writing to request the same on several occasions. He named Eric Marks, a metropolitan superintendent, who had in the past granted such permission. He said permission had to be granted from the metropolitan superintendents. The Applicant had never been told that such permission had been withdrawn or in some way expired. (Tr 11/10/05 - p 24, line 32 to p 25) 86 The third point to note is that, according to the Applicant, he had forgotten to renew his application for approval to engage in secondary employment, and when this was raised with him, he understood that approval for his secondary employment would be approved. It was not. 87 The Applicant's witness statement set out the chronology of the foregoing point. (a) In January 2004, the Union advised the Applicant that the Respondent had raised an issue that he was working in secondary employment (his VRA role), whilst on sick leave. (b) That issue was discussed at a meeting held on 4 February 2004. Present was the Applicant, with his union representative (Bob Morgan) and Steve Whinfield (General Manager, Operations) and Peter Payne (Manager, Sydney Operations Centre) for the Respondent. (c) The Applicant deposed that Whinfield raised the issue of lack of approval for his secondary employment and that Whinfield said words to the effect, " Get one in and it'll be approved. It's necessary under the regulations ." Further, Whinfield was deposed as stating something like " you're not supposed to engage in secondary employment while you're on sick leave. " (The Applicant regarded himself as not being on sick leave but on suspension from duties on pay. He said the payslips made no reference to sick leave. He had been on suspension since June 2003.) Against the Applicant's claim that Whinfield had not prohibited the Applicant from engaging in secondary employment whilst on sick leave, Whinfield was recorded in the Clark Inquiry as stating the position as a prohibition (" ... could not and should not engage " in secondary employment whilst on sick leave) (Ex 3 - Vol 2, Attach E, TAB 31, p 7 of 10) There is clearly then a conflict in the evidence on this point. Whinfield's prohibition is consistent with the Respondent's policy on the point. The Applicant appeared in the proceedings before myself but not Whinfield. The latter was not available for cross-examination. The Commission notes that subsequent to this meeting of 4 February 2004, the Applicant attended a motor vehicle accident at Claremont Meadows on 24 February 2004. This attendance was the first of the three charges for not having approval to engage in secondary employment and it comes after the Applicant's claim that Whinfield had said that the application to engage in secondary employment, would be approved. (d) The Applicant forgot about returning the application for approval but was reminded of it by Bob Morgan. The Applicant said that his wife hand delivered his application for approval for secondary employment on 1 March 2004. The Commission notes that the Applicant attended the second incident, for which he was charged, on 6 March 2004 at Cambridge Park. (e) The Applicant travelled to Western Australia on 16 March and returned on 3 April 2004. Upon his return, he discovered a letter (signed by Mark Beesley) requesting that he sign the application for approval to engage in secondary employment. (f) On 19 April 2004, the Applicant attended the downed motor-cyclist at Glenmore Park, and this was the third and final charge against him for not having approval to engage in secondary employment. (g) On 5 May 2004, the Applicant received a letter (dated 23 April and signed by Mark Beesley), advising that his application for approval to engage in secondary employment, had not been approved. (Ex 3 - paras 39 to 50) 88 Ms Brus cross-examined the Applicant on being engaged in secondary employment, without permission. 89 Ms Brus referred to the Respondent's policy: Ambulance Service Employees And Other Employment Policy And Guidelines. (Ex 3 - Vol 2, Attach E, TAB 29) Specifically the Applicant was referred to Clause 5.3, Common Conditions and the stated condition that an employee's "... other employment may not be accommodated by sick leave ..." The Applicant disputed he was on sick leave (despite providing medical certificates during the period in question) and said he was on suspension from duty. Ms Brus then put to him that he had received a letter from the Respondent to say that his suspension from duty had come to an end as at 4 February 2004. The Applicant believed the suspension was still on foot. (Tr 11/10/05 - p 62, line 11 to p 68, line 32) Summary of Without Permission Charges/Findings 90 Ms Brus contended that the Applicant was on sick leave (as the suspension had been withdrawn by the Respondent). Mr Murphy did not make an issue of this sick leave versus suspension scenario. It seems to the Commission that as the Respondent had withdrawn the status of suspension from employment, then that suspension no longer applied. Therefore the Applicant's continued absence from work - supported by medical certificates - gave the Applicant the status of absence due to sick leave. Accordingly, pursuant to Clause 5.3, Common Conditions, the Applicant could not engage in secondary employment whilst on sick leave. 91 There is an issue as to whether the Applicant had been granted approval, irrespective of Clause 5.3, in advance of making the application, by Whinfield at the meeting of 4 February 2004. There is a conflict in the evidence on this point. The Applicant said the approval was granted and his evidence, in effect, was that the approval was granted by Whinfield who knew that the Applicant was on sick leave. Contrary to that is Whinfield's version of the conversation, given to the Clark Inquiry on 18 May 2004. A reading of the Clark interview shows that Winfield said that he told the Applicant (a) of the need to obtain authority to participate in secondary employment and that such permission would be granted; and (b) that it was "inappropriate" for the Applicant to be carrying on such secondary employment whilst on sick leave. (p 5 of 10) Clark referred Whinfield to an email he had sent to Louise Ashelford (who also gave evidence in the proceedings). The email is annexed to Clark's interview of Whinfield. In that email, Whinfield told Ashelford he had told the Applicant that " it is entirely inappropriate " to engage in secondary employment whilst on sick leave. When questioned by Clark on the latter italicised term, Whinfield said that the " sentiment " conveyed by that term to the Applicant, was that " he could not and should not " engage in secondary employment whilst on sick leave (p 7 of 10) The Applicant's version is set out in his witness statement and is contrary to Whinfield's " sentiment ". Whinfield was not called as a witness to rebut that version and be cross-examined on his " sentiment ". Accordingly, the Commission resolves the competing versions of the conversation, in favour of the Applicant and finds that the Applicant was given permission by Whinfield to attend to his VRA activities, whilst on sick leave. The Commission notes that Whinfield gave a qualified approval, as put by the Applicant as follows, " you're not supposed to engage in secondary employment while you're on sick leave ". 92 In light of the foregoing finding, then the subsequent advice to the Applicant, in writing, that approval had not been granted, could not be held against the Applicant. That written advice was contrary to the Commission's finding that Whinfield had given qualified approval and that written advice is a matter for internal resolution by the management of the Respondent, in light of the Commission's finding. 93 The impact of the Commission's finding is that the three charges against the Applicant that he had engaged in secondary employment, without permission, had no basis and therefore no findings could be made against him. 94 Even if the Commission took the view that Whinfield's version of the conversation was correct (and approval per the Respondent's policy had not been given because the Applicant was on sick leave), the Commission would then find that the three charges/findings of engaging in secondary employment without permission, would not warrant termination of the Applicant's employment. The Commission finds that way given the Applicant's uncontested evidence that he had a long history of obtaining the requisite approval; that there had been merely an oversight on his part in not renewing his application for approval and his length of service. WORKING IN SECONDARY EMPLOYMENT CONTRARY TO VERBAL DIRECTIONS 95 The Applicant had three charges/findings of engaging in secondary employment, contrary to verbal directions by supervisors not to do so. 96 The three charges cited the same three instances as for the three charges that the Applicant had engaged in secondary employment, without permission: 24 February at Claremont meadows; 6 March at Cambridge Park; and 19 April at Glenmore Park. 97 For all three charges, the supervisor cited as being the one whose direction was disregarded, was Mr Whinfield, Acting Chief Executive Officer. 98 Mr Whinfield was interviewed as part of the Clark Inquiry and was questioned on this point. He was specifically asked if he had given the Applicant a direction or an order, not to engage in secondary employment whilst on sick leave. Whinfield responded: " I would, unfortunately I have difficulty in, in answering that. I just know that, that I said to John (the Applicant) that he shouldn't be engaging in VRA duties whilst he was on sick leave from the Ambulance Service ." Questioned again, given that quoted response above, Whinfield again confirmed he could not say that he went so far as to give a direction or an order. (Ex 3 - Vol 2, Attach E, TAB 31, pp 7 & 8) 99 Prima facie, it appears that the three findings against the Applicant that he disregarded an order or a direction, have not been sustained given the above Whinfield quote that he could not say he gave such a direction or order. 100 Ms Brus, however, in final submissions said that the three adverse findings could be sustained. 101 Ms Brus took the Commission to the Report of the Clark Inquiry. (Ex 3 - Vol 1, Attach E, pp 31 & 32) Ms Brus said that Mr Clark had not made a finding that such a direction or order had been made by Whinfield. However, she said that it appeared that Mr Clark found that it could be inferred from the context and language of the conversation, that Whinfield gave such a direction not to engage in secondary employment whilst on sick leave. 102 Be that as it may, it seems to the Commission that its finding about the previous and related issue (Working In Secondary Employment Without Permission) impacts on this issue as well. In that previous issue, the Commission found that qualified approval had been given to work in secondary employment. 103 Accordingly, it cannot be found that Whinfield gave a direction or order, even by inference, to the Applicant prohibiting him from engaging in secondary employment. 104 Even if the Commission erred in that finding, the Commission would then find that the three charges/findings of engaging in secondary employment contrary to verbal directions, would not warrant termination of the Applicant's employment. CONCLUSION 105 The Commission has before it an application for reinstatement of John Buchtmann and payment of all back pay. 106 The Commission considered the three lots of charges/findings against the Applicant: (a) One charge of striking Trent Speering (a fellow ambulance officer) a violent blow on the shoulder (the assault); (b) Three charges of engaging in secondary employment, without the written permission of the Respondent; and (c) Three charges/findings of engaging in secondary employment contrary to a verbal direction surrounding each charge, not to do so. 107 The Commission firstly considered the assault charge arising out of the Glenmore Park Motor Cycle Incident of 19 April 2004. Six witnesses gave evidence about the assault/finding. One of these, the downed motor cyclist, did not see any of the interaction between the Applicant and Speering. She gave evidence as to what she heard and of the jolt she felt (her head was being held by Speering whilst she lay on the roadside). Speering said he was assaulted. Fifield-Smith (the other ambulance officer treating the downed motor cyclist) said he saw an assault and Colin Smith (an entertainment group colleague of the motor cyclist) said he saw an assault. On the other hand, the Applicant denied striking Speering. A police officer (Duane Phillips) said that if there had been an assault, then he would have witnessed it. He said there was no assault. The assault was found by the Respondent to be a " violent blow ". 108 The Respondent carried the onus of proving to the Briginshaw standard of proof that an assault had taken place. That standard of proof requires that the Respondent demonstrate to the Commission that the Commission can be comfortably satisfied, having regard to all of the evidence, that the assault took place. Having considered all of the evidence, the Commission was not so comfortably satisfied and hence the assault allegation has not been made out to that standard of proof. 109 The Commission also considered the two lots of three charges against the Applicant, described above. The Commission held, for reasons given, that these charges against the Applicant had not been made out but even if the Commission was wrong about that, those charges/findings do not warrant the termination of the Applicant. 110 Mr Murphy, barrister for the Applicant, also raised a line of defence on behalf of the Applicant, that the Respondent's past conduct in dealing with disciplinary matters pertaining to the Applicant, showed a prejudice against the Applicant. Mr Murphy took the Commission to past disciplinary incidents concerning the Applicant and submitted that the Respondent's officers involved in those incidents showed a lack of procedural and/or substantive fairness towards the Applicant. It followed, he submitted, that the nine charges/findings pertaining to the assault etc, carried on that theme of unfairness towards the Applicant. The Commission found it unnecessary to deal with that line of defence. 111 Having considered all of the evidence, the Commission finds that the dismissal of the Applicant was unjust: Outboard World Pty Ltd (t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167. In coming to that conclusion, the Commission has already set out its reasoning that the Respondent had not met the Briginshaw standard of proof, for demonstrating that the Applicant had assaulted Speering. 112 The Commission has decided to make the appropriate orders as to the reinstatement of the Applicant into his former position. This decision has also taken on board Ms Brus' final submission on the appropriateness of reinstatement as a remedy. In that regard, Ms Brus took the Commission to responses given by the Applicant as to his view on the practicality of reinstatement. The Commission also points out to the Applicant that reinstatement requires the Applicant to return to his place of employment and carry out his duties. The Commission raises this in light of evidence brought out in cross-examination. It emerged, as the Commission understood it, that the Applicant had absented himself from work on stress grounds and had a medical certificate in support. But he responded to Ms Brus that he would not be returning to work until such time that a reprimand was expunged from his personal file. (Tr 11/10/05 - p 63, line 51 to p 65, line 48) If the Applicant has an industrial issue about his employment, he can pursue that matter through the appropriate channels - including a dispute notification lodged with this Commission - whilst gainfully employed on the job. 113 Mr Murphy, barrister for the Applicant, sought an order for payment of all lost wages. The Commission declines to make such an order. In that regard, the Commission notes that these proceedings were delayed to an extent by the Union not filing its evidentiary material on time. As well, the Commission has had regard to the evidence and decided to exercise its discretion not to order payment for all lost remuneration. O R D E R S 114 The Commission hereby makes the following orders: (a) The Applicant (Mr Buchtmann) is to be reinstated by the Respondent (Ambulance Service of New South Wales) into his former position. (b) The employment of the Applicant is to be taken not to have been broken by his dismissal. (c) The Applicant is to be paid one half of the remuneration he would have received had he not been dismissed. The amount of remuneration to be paid to the Applicant is to be calculated from the date of dismissal to the date of reinstatement, less any amount of monies paid (if paid) as notice period. (d) The orders of the Commission shall take effect within twenty-one days from the date of this Decision. A Macdonald Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.