Industrial Relations Commission New South Wales Medium Neutral Citation: Hanson v The Director General, NSW Department of Health in respect of the New South Wales Health Service (Sydney West Area Health Service) [2011] NSWIRComm 1020 Hearing dates: 20-23 July 2010, 26-27 August 2010, Applicant's written submissions: 24/09/10, Respondent's submissions: 01/10/2010, Applicant's response submissions: 11/10/2010 Decision date: 21 April 2011 Jurisdiction: Industrial Relations Commission Before: Tabbaa, C Decision: Claim dismissed; Dismissal was not harsh, unjust or unreasonable. Catchwords: UNFAIR DISMISSAL, professional misconduct, assault on mental health patient, failure to seek medical attention, Legislation Cited: Industrial Relations Act 1996; Health Services Act 1997 (NSW) Cases Cited: Byrne v Australia Airlines Ltd (1995) 185 CLR 410; Samad v Public Service Board (New South Wales) (1983) 5 IR 464; HREA on behalf of Drinian v Hunter Area Health Service [2002] NSWIRComm 270; NSW Nurses' Association (on behalf of Colin Prior) v South Eastern and Illawarra Area Health Service [2007] NSWIRComm 164; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; Briginshaw v Briginshaw (1938) 60 CLR 336; PSA and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Lloyd Kerr) and Director of PE by her Agent the Director-General of the Department of Juvenile Justice [2009] NSWIRComm 1034; Director of PE by his Agent the Director-General of the Department of Juvenile Justice and PSA and Professional Officers' Association Amalgamated Union of NSW (on behalf of Elvin Brian Brown) [2008] NSWIRComm 221; NSW Department of Education and Training v NSW Teachers' Federation (on behalf of Mossfield) [2006] NSWIRComm 210; Budlong v NCR Australia Pty Ltd [2006] NSWIRComm 288; Lane v Arrowcrest Group Pty Ltd (1990) 99 ALR 75; Plummer v Stannard Bros Launch Service (2005) 145 IR 111; Browne v Dunn (1893) 6 R 67 (HL); Jones v Dunkel & Anor. [1959] 101 CLR 298; Stewart v Hunter Area Health Service (unreported, Industrial Relations Commission of NSW, Harrison DP, No. 5299 of 1998, 11 November 1998); R v Knight (1988) 35 A Crim R 314; Budlong v NCR Australia Pty Ltd [2006] NSWIRComm 288 Category: Procedural and other rulings Parties: Alan Hanson (Applicant) The Director General, NSW Department of Health (Respondent) Representation: Mr D O'Sullivan (Applicant) Dooley & Associates Solicitors Mr D Gardner (Respondent) Maddox Lawyers File Number(s): IRC 176 of 2010 DECISION INTRODUCTION 1The Applicant, Alan Hanson, a 58 year old male, filed an application pursuant to section 84 of the Industrial Relations Act 1996 ("the Act") in relation to the termination of his employment by The Director General, NSW Department of Health in respect of the New South Wales Health Service (Sydney West Area Health Service) (SWAHS) on 15 February 2010 on the basis of professional misconduct during an incident on 16 October 2009. 2The Applicant commenced employment with SWAHS on 11 September 2006 and, at the time of his termination, was working at Cumberland Hospital as a Registered Nurse in Mental Health. BACKGROUND 3The Applicant qualified as a registered nurse in 1988. 4In addition to nursing, Mr Hanson has pursued an interest in acting and has performed roles in amateur and professional productions. In July to August 2003, the Applicant undertook an acting course at the Royal Academy of Dramatic Arts (RADA) in London during which he was taught a technique called " victim control ". It involves an arm going around the neck of the victim from behind and that arm being held in a loose but fixed position by the hand of the opposing arm on the elbow. 5Cumberland Hospital has an inpatient service, which includes acute and intensive care, rehabilitation and forensic psychiatry across 12 wards. The Applicant originally worked in Yaralla Ward, a 16-inpatient maximum seclusion intensive care unit. In or around May 2007, he was transferred to the Acacia Ward, a locked rehabilitation unit specialising in the management of mental health patients who require care on either a short or long term basis as they suffer from various mental health issues and require containment. Those patients exhibit violent behaviour which is frequently exhibited. Some patients in Acacia are treatment resistant whilst others respond to treatment but are non-compliant with treatment programs. 6Patient X is a patient in the Acacia Ward who suffers from Treatment Resistant Schizophrenia, is often aggressive and has exhibited violent behaviour such as hitting out at people. In the fortnight leading up to the events on 16 October 2009, patient X had exhibited signs of increasing violent behaviour. 7On 16 October 2009, the Applicant was working in the Acacia Ward along with Registered Nurse Laura Murray, another two nursing staff and two nursing students. 8An altercation occurred between two patients, one of whom was patient X. One of two student nurses sought to intervene by a placing his hand in between the two patients at which time patient X turned his attention to the student. Nurse Murray placed herself in front of patient X who then started to swing his arms at her. She grabbed patient X's arms and called out to the Applicant for assistance. The Applicant ran towards them approaching patient X from behind. He placed one arm around the neck of patient X and held it in place with the hand of his opposing arm on the elbow. Patient X then went limp and was lowered to the floor by the Applicant prior to being escorted by the Applicant to his room. Patient X did not suffer any injuries as a result of the Applicant's actions. 9Nurse Murray complained that she observed the Applicant's arm come into contact with patient X's neck and she was of the opinion that patient X lost consciousness. 10A brief was prepared in relation to the incident in which an allegation of " serious assault " was made against the Applicant arising from the events of 16 October 2009. The brief recommended that the Applicant be suspended until the conclusion of the investigation and the police and the NSW Nurses and Midwives Board be informed of the allegation of serious assault. 11On 22 October 2009, Mr Macmillan, Acting Director of Nursing - Mental Health for the Respondent, met with the Applicant and advised him that an investigation was about to commence into an allegation that he assaulted a Mental Health inpatient at the Acacia Unit, Cumberland Hospital by putting him " in a choke hold until he allegedly lost consciousness ". He was provided with that advice in writing and instructed not to report for duty until further notice. During that period he continued to receive his ordinary rate of pay. 12The Respondent sent letters to the New South Wales Police Service and Professor Steven Gillies, the then Chief Executive of the Respondent, which stated that there was an allegation of " serious assault " levelled against the Applicant. 13On 6 November 2010, the Applicant received a letter from SWAHS in which he was informed of the requirement to attend a fact-finding interview on 17 November 2010. It stated that the allegations were that " he assaulted a Mental Health inpatient... by placing him in a 'choke hold until he went limp ', and failed to have the patient seen to by a medical officer ....immediately after this incident ". The Applicant was invited to take a support person to the interview. 14The Applicant attended the interview with Mr MacMillan, Acting Director of Nursing, Mental Health, and Mrs Van Bruinessen, Recovery Services Manager. He was accompanied by a support person, Mr Ajit Singh, Nurse Unit Manager. When the Applicant insisted on reading from a prepared statement, he was put on notice by Mr MacMillan that an inference could be drawn from any lack of response to questions. 15The Applicant and Mr Singh agreed that the interview had been fair. In addition, the interview was recorded. The Applicant did not raise any errors with the copy of the transcript that was provided to him. 16Mr MacMillan and Ms van Bruinessen prepared their investigation report based on the interview with the Applicant and interviews with, and statements from, other staff members and witnesses. The Report, dated 7 December 2009, concluded that the Applicant: * assaulted a male patient of the Acacia unit at Cumberland Hospital by " placing him in a choke hold until he went limp "; and failed to obtain necessary medical intervention for a patient who had been assaulted. 17The Applicant received a letter dated 7 December 2009 in which he was informed that the allegations were substantiated and that there was a recommendation that his employment be terminated, his name be placed on the Service Check Register for NSW Health Services and that the matter be referred to the NSW Nurses and Midwives Board for review and any subsequent action. He was provided with an opportunity to respond to the recommendations. 18The Applicant responded in correspondence dated 8 December 2009 and 9 December 2009 addressed to Associate Professor Gurr denying the allegations. 19On 22 December 2009 the NSW Nurses' Association sent a letter to Associate Professor Gurr providing a response to the findings of the investigation report on behalf of the Applicant. 20The Applicant's response was taken into consideration, as was his employment history, in the final determination as to whether his conduct warranted dismissal. On 22 January 2010, based on recommendations, the Chief Executive, Steven Boyages, terminated the Applicant's employment effective 15 February 2010 on the basis of professional misconduct and breaching clause 7.2 of the Code of Conduct Policy dated 20 October 2005. He also determined that the Applicant's name would be placed on the Service Check Register for NSW Health Services and that the matter would be referred to the NSW Nurses and Midwives Board for review and action. 21On 2 February 2010, in accordance with the Disciplinary Policy, the Respondent notified the NSW Nurses & Midwives Board that the Applicant had been terminated ' as a result of substantiated allegations of a serious assault on a male patient and a failure to seek medical assistance for the injured patient '. 22The Applicant was placed on the NSW Health Service Check Register on 15 February 2010 in accordance with the Service Check Register Policy. 23The Applicant had not been the subject of any disciplinary warnings prior to the termination of his employment. 24Conciliation proceedings before Bishop C on 31 March and 16 April 2010 failed to resolve the claim and the matter was set down for hearing before the Commission as currently constituted on 20, 21 and 23 July, and 26 and 27 August 2010 at which time Mr D O'Sullivan, of Counsel, entered an appearance on behalf of the Applicant and called evidence from: Alan Francis Hanson Applicant Rose Cranney Registered Nurse Mr D Gardner, Solicitor, entered an appearance on behalf of the Respondent and called evidence from: Laura Murray Registered Nurse Warwick Lahner Nursing Unit Manager Charles MacMillan Acting Deputy Director of Nursing Dr Alan Fostey Psychiatric Medical Officer Janine van Bruinessen Recovery Services Manager, Eastern Cluster Richard Chrystal Director of Nursing, Mental Health Sivige Rao Nurse Manager (Education) Written submissions were completed by 11 October 2010. 25The issue to be determined is whether the Commission should disturb the Respondent's decision to dismiss the Applicant with notice because it did not accept the Applicant's reasons for assaulting a mental health patient in his care and failing to call a medical officer after the incident. 26The Applicant seeks a finding that the termination was unfair. In addition to seeking orders for reinstatement, the Applicant seeks back pay and continuity pursuant to ss 89 81), (3) and (4) of the Act. 27The Respondent submits that the application should be dismissed on the basis that its decision to dismiss the Applicant was not harsh, unjust or unreasonable. SAFETY TRAINING & PROCEDURES Aggression Management Training 28It was submitted that aggression or violence can be prevented and, to that end, SWAHS is committed to training its staff, working in a mental health environment, in techniques and procedures to manage aggression when, on occasion and for various reasons, patients display aggression or violence. 29It was pointed out that deviation from these techniques, procedures and training can have potentially fatal consequences especially where unauthorised and inappropriate physical restraints have been applied by a staff member. 30SWAHS pointed out that the first time the Applicant raised the allegation of lack of training was in the section 84 claim filed with the Commission. He did not raise the issue of training either during the investigation interview or in his letters responding to the investigation outcome. 31The Applicant attempted, in his evidence, to diminish the importance of the aggression management training provided to him during his employment at SWAHS. 32SWAHS submitted that the Applicant received extensive training on aggression management and was well aware of the techniques and options available to him when presented with violent and aggressive patients. Moreover the Applicant's own witness, Ms Cranney, who had worked in Acacia Ward acknowledged that, as a mental health nurse, she had received special training, including lectures and practical demonstrations on evasive techniques, on how to deal with that particular type of aggressive incident. 33The Applicant made the following admissions during cross-examination in relation to the training he had received: 33.1 Initially, he could not recall specific de-escalation techniques that had been demonstrated to him during his training which were designed to de-escalate patients who were violent and aggressive. However, when pressed on that point, the Applicant acknowledged that the use of a soothing voice and standing less than two metres apart with hands held up were de-escalation techniques; 33.2 He was taught that every effort must be made to safeguard the patient's vulnerable areas which were identified as the neck, throat, chest and abdomen; 33.3 He was also taught that any restraint must be proportional to the patient; and 33.4 He received refresher training on aggression management on 29 September 2009, two weeks prior to the incident. At that training, attendees were provided with a copy of the Aggression Management Handout. 34During cross-examination, the Applicant's witness, registered nurse Rose Cranney, agreed that the first technique to be used with a violent or aggressive patient is de-escalation. The stages of de-escalation included distancing oneself from risk and talking to a patient. Her evidence was consistent with the evidence of a number of the Respondent's witnesses including Mr Richard Chrystal, Mr Sivige Rao and Mr Warwick Lahner. 35In his affidavit evidence and during cross-examination, the Applicant stated that Mr Lahner had demonstrated to him how and when to apply a sleeper hold. The Applicant stated " I recall him specifically showing me or demonstrating to meet the use of the sleeper hold ". 36The Respondent submitted that the Applicant was being untruthful for the following reasons: 36.1 In his evidence, Mr Lahner strenuously denied that he had ever shown the Applicant how to apply a sleeper hold. Rather, he had shown the Applicant how to out get out of a sleeper hold; 36.2 Mr Lahner also gave evidence that he specifically told the Applicant that he must not apply a sleeper hold on a patient stating " you don't apply it at home with family, you don't apply it to patients or at any other time "; 36.3 Mr Lahner gave further evidence that he advised the Applicant, " you must never apply around the neck, you must never apply pressure around the chest either "; 36.4 In re-examination, Mr Lahner explained in more detail the reasons why he told the Applicant that a sleeper hold is not to be used on patients: ".... you specifically teach staff not to perform the sleeper hold or any of these other techniques at home, with relatives, with patients and you are only to do it within these confined areas, because this area is for where you are doing it in safety, slow, careful moves. This is so you don't put staff at risk in the same process. The reason why you don't do that is as written in the aggression management package, and I'm sure your friend has that package, that it will actually constrict the blood vessels, it will affect the airway. You can also hurt people's arms, limbs and you also don't constrain against the chest. All these things are taught." 37Ms Cranney gave evidence that the training provided by SWAHS was on how to avoid being strangled by a patient rather than how to apply a choke hold or a strangle hold on a patient. Her evidence was consistent with the evidence provided by Mr Lahner. Green Alert 38SWAHS provides a number of safety systems for use by staff at the appropriate times: 38.1 Every staff member must carry a duress alarm which is triggered by pressing a button or falling horizontally; 38.2 There are red emergency buttons located throughout the ward that can be used to trigger response and notify of an emergency; 38.3 Phone lines can be used to call the SWAHS emergency number; 38.4 A Green Alert system. Staff members assigned to the Green Alert team are required to carry a small two way radio. 39It is a SWAHS requirement that the Green Alert system must be used to alert security and other staff when a person becomes, or threatens to become, violent. The policies and procedures for implementing that system are set out in the SWAHS ' Operational Procedures Manual for the Management of Aggression ' which was revised in 2006. 40The procedure for a green alert requires the following: * Staff to remove themselves and other people from danger; * Alert nearby staff; * Telephone the emergency number, state "Green Alert", and provide the exact location, building, room and their name; and * Wait for the arrival of the Emergency Response Team. IIMs reporting and Severity Assessment Codes 41The IIMs reporting system is utilised by staff at the hospital to notify of patient-related incidents. 42During cross-examination, the Applicant claimed he was not familiar with that system. Nevertheless, when he was shown more than 20 IIMs reports entered into the system under his name, the Applicant acknowledged that he was the notifier. In addition, he was shown the Severity Assessment Codes (SAC) graph (both in colour and in black and white) which was used to identify the appropriate codes to be used when preparing an IIMs report: Despite previously asserting that he had " no conscious recollection of seeing this and it has never been pointed out to me its existence ", he later accepted that he had indeed seen the SAC graph before as staff first have to view the graph on the screen before they are able to log onto the IIMs reporting screen, " I have seen that on the computer, of course I have ". 43Despite those admissions, he continued to give evidence that he was not familiar with the system. In response to a question as to whether he was confident enough to prepare an IIMs report in relation to the incident with patient X, the Applicant replied " yes I think I did ". 44The Respondent concluded that the evidence indicated that the Applicant had more than a basic understanding of the IIMs reporting system. PATIENT X 45Patient X suffers from Treatment Resistant Schizophrenia (TRS), demonstrates a severe neuro-cognitive decline and suffers from a dementing process. 46He is approximately 5 foot 6 inches and weighs approximately 63 kilograms. 47Patient X is known to hold on to people's arms and to shake their hands in a manner designed to demonstrate his strength. 48Medical records indicate that Patient X is frequently upset and aggressive, but can be calmed by the administering of prn medication and other alternative techniques to restraint. Often a simple gesture of holding out ones hand calms Patient X as he wants to hold an outstretched hand. Although in those instances he does not let go, he holds the hand, not in an aggressive way, but in a manner demonstrating his need for human affection. Ms Cranney acknowledged that Patient X's usual preference is to hold a person's hand as he craves affection and human touch. The Applicant acknowledged that Patient X " likes a cuddle ". 49There was evidence from Ms Cranney that Patient X has a propensity to drop. The Respondent questioned why a restraint such as that employed by the Applicant could ever have been considered to be appropriate or safe in view of the fact that the risk of harm to a patient is significantly increased as there would be a compression on the carotid arteries. Ms Cranney agreed with that assessment and as to the reason why such a hold would not be applied to Patient X. 50The Applicant acknowledged that the " victim control " hold he used against Patient X involved " a degree of risk ". THE EVIDENCE 51Registered Nurse Laura Murray, on 16 October 2009, reported an incident involving the Applicant to Dr Alan Fostey, Psychiatric Medical Officer. The evidence of Ms Murray was that: 51.1 On the day in question, she left the dining room and was walking towards the nurses station when she saw Patient X swinging his arms towards another patient; 51.2 A male student nurse put his hand up between them to stop patient X from swinging at that other patient; 51.3 Patient X attempted to push the male student nurse at which point the other patient distracted patient X by stepping in front of him; 51.4 Ms Murray went up to patient X in order to break up the incident; 51.5 Patient X started swinging his arms at Ms Murray; 51.6 At that point she was standing in front of patient X so she took hold of his wrists in order to stop him swinging his arms; 51.7 She then called out to the Applicant --" Alan, Patient X was attacking the students "; 51.8 The Applicant came running out of the nursing station behind patient X; 51.9 The Applicant put his arm around patient X's neck from behind. He used his other hand to grab the elbow of the arm he had around Patient X's neck. She observed the Applicant's arm come into contact with patient X's neck. He pulled on the elbow in what did not look to her to be a loose grip; 51.10 When she attempted to restrain patient X around the legs, the Applicant yelled " get back, get back " and did not allow her to assist; 51.11 While still being restrained around the neck, patient X closed his eyes and his head and body went limp; 51.12 She yelled at the Applicant " He's out, he's out! " She noted that patient X lost consciousness. The Applicant then released patient X and lowered him to the ground; 51.13 After laying on the floor for a few seconds, patient X opened his eyes and asked " what happened, what happened? " The Applicant then escorted patient X to his room; 51.14 The Applicant neither administered patient X with prn medication following the incident nor did he arrange for a medical officer to review him. 51.15 The period of time from when she called out to the Applicant to the time when patient X went limp was less than 30 seconds. 52Dr Fostey reported the incident to his supervisor, Dr Subba Singh, Consultant Psychiatrist (Director of Rehabilitation) who advised him to report the incident to Ms Caroline McSherry, Acting Deputy Director of Nursing. 53Miss Caroline McSherry in turn reported the incident to Mr Charles MacMillan, Acting Deputy Director of Nursing, who commenced an investigation into the incident on 21 October 2009. 54In summary the following steps were taken during the investigation: 54.1 The Applicant was made aware of the allegation of misconduct against him in writing and stood down from his duties with pay pending the outcome of the investigation; 54.2 Dr Fostey provided a written statement of his discussions with Ms Murray; 54.3 Due to the serious nature of the incident and, in accordance with the mandatory notification requirements under the SWAHS Employee Disciplinary Policy, NSW Police were informed of the alleged assault and attended Mr MacMillan's office to obtain details of the incident; 54.4 Ms Murray provided a written statement of her observations of the Applicant assaulting the patient; 54.5 Mr MacMillan attempted to interview patient X but the latter had no recollection of the incident and was too mentally unwell to answer any questions that were put to him; 54.6 Mr MacMillan interviewed the two nursing students, Amy Tracy and Patrick Thiering, and obtained statements from them; 54.7 The Applicant was once again provided with details of the allegations in writing and invited to attend a fact-finding interview at the Hospital with Mr MacMillan and fellow investigator, Ms Janine van Bruinessen; 54.8 The Applicant attended with Mr Ajit Singh, the Nurse Unit Manager, as his support person. The Applicant provided a written statement; 54.9 An investigation report was prepared that outlined the findings and recommended that the Applicant's employment be terminated; 54.10 The Applicant was provided with a copy of the investigation report and the transcript of the fact-finding interview. He was also provided with an opportunity to show cause why his employment should not be terminated; 54.11 The Applicant provided two responses and the NSW Nurses' Association provided a third response on his behalf. Following receipt of those responses, SWAHS terminated his employment for professional misconduct. 55In line with mandatory notification requirements under the Disciplinary Policy, the NSW Nurses and Midwives Board was notified of the Applicant's termination and the circumstances surrounding it. 56The NSW Police were also notified of the incident and were continuing to investigate the matter. They had been provided with the names of witnesses to the incident and were yet to determine whether the Applicant would be charged. 57The Applicant was also added to the NSW Health Service Check Register as per the requirements of the NSW Health Policy PD2009_004. 58The Applicant gave evidence that, on the day of the incident, he assumed an attack was taking place. 59He denied that he applied force onto the neck of patient X or that patient X lost consciousness. 60The Applicant submitted that mitigating circumstances, namely the ' aggressiveness' of Patient X, existed that justified the restraint. Most of the Applicant's evidence in that regard concerned alleged past acts of aggression. Nevertheless, Richard Chrystal, who had nursed Patient X in the past, did not agree with that characterisation of Patient X's behaviour. 61The Applicant gave evidence that he is much taller and heavier than Patient X but he steadfastly refused to discuss his precise weight and height, despite persistent cross-examination. The Respondent submitted that the refusal demonstrated the Applicant's lack of candour as a witness. 62The Operational Procedures Manual for the Management of Aggression contains a requirement that, after any aggressive incident, the Nurse in Charge (which, on the day of the incident in question, was the Applicant) ensure that: " The patient is checked for any injury and appropriate treatment provided. Accident/lncident Form completed and signed by Medical Officer if any injury is noted " . The Applicant gave evidence that he did not did not arrange for a medical assessment of Patient X because, in his opinion, the patient had not lost consciousness. SUBMISSIONS BY THE RESPONDENT 63The Respondent contended that, having regard to all the relevant statutory considerations, the termination of the Applicant's employment was not harsh, unjust or unreasonable. 64At the time of the incident, Patient X was 53 years of age, had been in institutional care for 20 years and was severely mentally ill. There was, therefore, no doubt that Patient X, by the very nature of his condition and as a person in institutional care, should be treated with dignity and respect, especially in situations where there was need to protect his safety and welfare and that of other nursing staff. In other words, he was owed a higher level of duty of care by the Applicant. 65The Respondent pointed out that the relevant standard of proof where an allegation of misconduct has being raised is on the balance of probabilities: Briginshaw v Briginshaw (1938) 60 CLR 336 with the Defendant bearing the onus of proof, even when the matter involved criminal conduct as held by the High Court in Neat Holdings Pty Ltd. v Karajan Holdings Pty Ltd (1992) 110 ALR at 449. 66The Respondent acknowledged that the Commission is not bound by the determination of facts made by an investigation initiated by an employer: PSA and Professional Officers' Association Amalgamated Union of NSW (on behalf of Lloyd Kerr) and Director of PE by her Agent the Director-General of the Department of Juvenile Justice [2009] NSWIRComm 1034 (at 195]. It was pointed out that, nevertheless, that the Applicant had participated in a fair and extensive investigation process and the evidence adduced throughout the hearing supported, and was consistent with, the findings of the investigation. 67The Respondent pointed out that the Applicant had alleged that there had been ' threats of disciplinary action if I call people to assist me with statements ' however, when that matter was pressed and the Applicant was advised that he had the ability to summons witnesses he responded that he had decided against it despite having ample opportunity to do so. 68In addition, the Respondent had been put on notice that the Applicant anticipated calling on Mr Phillip Sutherland, Registered Nurse, to give evidence on his behalf. That did not occur despite Mr Sutherland being present in the courtroom during the proceedings. Furthermore, neither Mr Ajit Singh, Nursing Unit Manager at Acacia Ward, nor an unnamed female nurse, both of whom were mentioned by the Applicant during his testimony and in support of his evidence, were called to give evidence on his behalf. It was submitted that the Commission was entitled to infer, pursuant to the rule in Browne v Dunn (1893) 6 R 67 (HL) (sic) that the Applicant failed to call on those witnesses because their evidence would not have supported his case. 69The Respondent submitted that the evidence of its witnesses should be preferred to that of the Applicant and his witness, Ms Cranney, for the following reasons: 69.1 They had demonstrated integrity, honesty and candour throughout their testimony before the Commission in contrast with the evasive, hostile and sometimes aggressive demeanour of the Applicant; 69.2 They had worked in mental health and had been involved in the clinical care of patients; 69.3 They were apprised of the policies and procedures relevant to SWAHS and the management of aggression at the Hospital; 69.4 They were united in their position that the Applicant's actions during the alleged incident were in breach of SWAHS policies and procedures and provided an unnecessary and avoidable risk to staff, the nursing students and patients. 69.5 Mr Lahner is an accredited aggression management trainer who regularly teaches nursing staff evasive techniques in order to keep the staff and patients safe and to ensure that they do not put themselves or patients at risk; 69.6 It was pointed out that the evidence provided by Messrs Rao and Chrystal on SWAHS training, policies and procedures was thorough and remained largely untouched by the Applicant in cross-examination; and 69.7 The two nursing students provided evidence of what they witnessed of the incident. That documentary evidence, which was also provided to the Applicant, was relied upon by Mr MacMillan and documented as part of the investigation into the incident. 70The Respondent pointed out that Ms Cranney was called to give evidence despite not being present during the incident involving Patient X. Nevertheless, much of her evidence supported the Respondent's contentions that nursing staff at the Hospital were provided special training on aggression management which included de-escalation techniques and instruction on how to avoid a patient's attempts to strangle or physically restrain staff. 71It was also pointed out that Ms Murray was unwavering in her testimony and provided full and frank evidence in relation to the incident. The Respondent submitted that Ms Murray should be reassured by the Commission that she did the right thing by reporting the incident. Her demeanour before the Commission demonstrated that she was a caring professional whose paramount concern was that of ensuring the good care and welfare of Patient X. She had clearly been emotionally affected by the incident. 72Ms Murray gave evidence that Patient X was already being restrained by her as she was holding on to his wrists when the Applicant arrived on the scene. She pointed out that the two nursing students and the other patient were nearby. No one was in immediate danger. 73It was pointed out that, rather than talking to Ms Murray, the nursing students or either of the patients to determine what had happened, the Applicant chose to physically restrain Patient X by grabbing him around the neck. The Applicant referred to this as " victim control " as taught by RADA in contradiction of all the training he has been provided as a mental health nurse. The Commission was reminded that when asked whether, on reflection, he considered that it was a totally inappropriate manoeuvre, the Applicant disagreed and continued to maintain that it was a way to try " to settle the patient ". It was of great concern to the Respondent that, even on reflection and in light of all the training and procedures advocated by SWAHS, the Applicant continued to maintain that the course of action he took was appropriate. 74Ms Murray also gave evidence that Patient X can usually be calmed using alternative methods. She contended that the restraint used by the Applicant was not defensive, was in breach of SWAHS aggression management policies and the training he had received on aggression management and was unnecessary, dangerous and an assault on Patient X. 75It was submitted that the evidence of the Applicant, that he restrained Patient X using a safe method learnt at RADA, was not supported by the evidence of the Respondent's witnesses and should be rejected by the Commission. The Applicant's own evidence on that point was, in itself, unreliable: * During cross examination, he acknowledged that he perceived a confrontation had occurred but he had not witnessed any part of it; * Both in his statement and in his testimony, he gave evidence that at the time he arrived at the incident, patient X was in a stationary position, not moving and not talking and that all he could see was Patient X's hands raised to the approximate height of his abdomen. He acknowledged that Patient X " wasn't physically involved in a confrontation at the time ' he arrived on the scene; and * His evidence on that point was in complete contrast to the contentions in his submissions that the " Applicant when arriving on the scene was confronted with a patient who was in an agitated state " and that " the Applicant felt that he had very little time to weigh up the various alternatives ". 76It was contended that the Applicant's conduct had been grossly irresponsible in that he had placed at unacceptable risk the safety, welfare and dignity of patient X; he failed to acknowledge the harm he caused Nurse Murray by his own actions; and also failed to appreciate that he set a very poor example as a nursing professional by disregarding proper and safe procedure and in assaulting the patient in front of two student nurses. 77The Respondent pointed out that the principle that an assault on a health patient by an employee will result in dismissal has been upheld in several cases: 77.1 In Samad v Public Service Board (NSW ) (1983) 5 IR 464 a doctor kicked a patient and put his hands around his throat in a defensive response to insulting and aggressive actions directed at him by the patient. The doctor's actions were brief and did not physically hurt the patient. At first instance, the Government and Related Employees Appeals Tribunal (GREAT) found that: "It is a well established and well-known rule of conduct to be observed by employees at such institutions that violence must never be used against a patient either as a corrective or punitive process.... It follows that commission of an offence such as that involved in this case is ordinarily attended by dismissal..." and ".... the circumstances of this case do not permit any result other than one which demonstrates that assault by employees of persons resident in State institutions will not be tolerated." The NSW Court of Appeal upheld GREAT's findings and made it clear [at p 466] that an assault of a patient under institutional psychiatric care will not be tolerated, and that employees who breach that requirement will not be retained in employment regardless of the defensive and instinctive nature of the reaction: "..... although the appellant did come in contact with the patient, this was by way of unintended and defensive response to aggressive actions by the patient. No witness said that what the appellant did to the patient was more than momentarily or hurt him physically." 77.2 That principle was upheld and affirmed in cases involving an employee reacting instinctively to an act of aggression committed against them by a patient: 77.2.1 Stewart v Hunter Area Health Service (unreported, Industrial Relations Commission, NSW, Harrison DP, No. 5299 of 1998, 11 November 1998). Stewart, a nurse, had slapped a patient on the cheek for spitting on her; 77.2.2 HREA on behalf of Drinian v Hunter Area Health Service [2002] NSWIRComm 270. A security officer struck a patient on the head with his hand after the latter abused and spat at him; 77.2.3 New South Wales Nurses' Association (on behalf Colin Prior) and South Eastern Sydney and Illawarra Health Service (2007) 164 IR 225. A nurse had punched, slapped and twisted the arm of a patient in an aggressive manner. 77.3 The Respondent contrasted the present circumstances with those pertaining in the above authorities. It was submitted that, in the present case, the Applicant had not been in any danger. When he arrived on the scene, he had the time to consider what actions to take to safely restrain Patient X because: 77.3.1 There was no urgent, violent or aggressive conduct displayed by Patient X; 77.3.2 The Applicant did not come under attack from Patient X; and 77.3.3 The patient was already being restrained by Nurse Murray and, on the Applicant's admission during cross-examination, Patient X was standing still and not being aggressive to the Applicant or Nurse Murray. 78Had the situation been dangerous and called for urgent action, then the Applicant, as nurse in charge, should have applied the training he had received in aggression management and safe work practices. He failed to do so and, instead, applied a dangerous hold to a patient contrary to training and commonsense. 79The Respondent reminded the Commission that Patient X was in a rehabilitation ward and not a seclusion ward. Therefore, even if the Commission was prepared to accept the Applicant's assertions that he was justified in acting in the manner he did because of Patient X's propensity to be ' aggressive ' or ' violent ', then it still cannot lead to any finding that the Applicant's conduct was reasonable bearing in mind that similar arguments in similar circumstances have been confidently rejected by the Court of Appeal in Samad , and by the Full Bench of the Industrial Relations Commission in Mossfield. 80The Applicant neither asked any questions nor called for any assistance raising the question as to why it was at all necessary for him to grab Patient X around the neck, or restrain him at all. Despite the fact that there was no need for the Applicant to defend himself against any attack, he acted deliberately, and disproportionately to any real or imminent risk in a manner that constituted an assault by wrapping his arm around Patient X's neck until Patient X collapsed to the ground. 81The Applicant was referred to the concept of " reasonable force " in his training. The Aggression Management Handout exp lained the concept as follows: All staff should be aware of and understand the concept of "REASONABLE FORCE". The defense of "SELF-DEFENSE" relies on the argument that the level of force used is reasonable given the threat faced i.e. - the amount of force used by staff members necessary for appropriate self protection OR to ensure the protection of other patients, visitors or staff The general rule is that the amount of FORCE used must be appropriately proportionate to THE DANGER POSED. The Respondent submitted that the restraint used by the Applicant was totally disproportionate to the situation and was more appropriately described as an " assault " on Patient X. 82At the hearing, the Applicant gave evidence that he placed his right arm around the neck of Patient X and that he maintained the hold for slightly less than 30 seconds. He stated that, due to an injury to his left hand and lack of strength, he would not have been able to use his left hand to pull on his right arm. It was noted that the Applicant seemed to have dropped that point from his submissions. 83Initially, the Applicant denied that he was leaning forward as he held Patient X around the neck. Later, he acknowledged that he was leaning forwards. Later still, the Applicant changed his evidence stating that he was straightening up rather than leaning forwards. 84The Commission heard evidence from Dr Fostey that Patient X weighed about 63 kilograms and was 5 foot 6 inches tall, which made him considerably smaller than the Applicant. Nevertheless, the Applicant was unable to provide an adequate explanation as to how he, in the position he alleged he was in while restraining Patient X and at a height of 6 foot 2 inches, was able to fit his knees underneath the buttocks of Patient X 85The Applicant acknowledged that when Patient X went limp, 'he dropped his entire body, so I had to bring it in very quickly and at that moment, at that few seconds it was a difficult situation and I could feel his chin there on the elbow' . As a result the Applicant says he had to hold Patient X around the waist. 86The Applicant's evidence as to the hold he applied to Patient X was in direct conflict with the evidence given by Ms Murray. It was submitted that, as the incident was directly observed by Ms Murray from her position in front of the patient, her evidence must be preferred. Despite persistent cross-examination, Ms Murray steadfastly maintained that the Applicant's left arm was around Patient X's neck and against his right ear and that he used his good right hand to hold his left elbow then pulled backwards thus exerting pressure on the neck of Patient X. Nurse Murray made it very clear that the hold was made around the area of the neck where the carotid artery is located. In re-examination, Nurse Murray stated " Contact was made right around the neck, all around the neck, on the side. His arm was tight around the neck, it was made all around the neck. I did not see any loose gaps ". 87It was submitted that Nurse Murray's evidence as to Patient X losing consciousness should be preferred because she could clearly see the hold being applied and Patient X losing consciousness. 88Ms Murray said she had observed Patient X go limp on previous occasions but her evidence was that the incident on 16 October 2009 was entirely different. She said that she could clearly see that Patient X had: '.. stopped fighting, he stopped his aggressive movements, he closed his eyes, ... his chin dropped and his head dropped just slightly and when he was lowered to the floor, he had no control over his limbs, his limbs just landed wherever they went on the floor..' 89The Respondent submitted that the Applicant, as the nurse in charge, then failed to call for medical assistance. 90It was submitted that Ms Murray's evidence was also compelling in that she was prepared to admit that the incident had a very personal impact on her as she had not witnessed a patient react this way before, she stated: "I have never observed patient X in 18 years of my employment at Cumberland to react or not react at all and remain silent and then go into a childlike state afterwards. I was told placing a sleeper hold on a patient is like hitting a reset button and that is exactly what happened. I noticed it instantly and that's why I yelled with urgent tone in my voice that "He's out, he's out". That's all I could get out in time. It takes too long to say, he's unconscious or he's, you know, so that's what I yelled at the time, the quickest thing that came to my head was, "He's out, he's out", to let Mr Hanson know that this is not normal, he's out, he's out of it, he's out cold in other words'. 91Furthermore, Ms Murray not only advised Dr Fostey of the incident involving the Applicant and Patient X but had spoken with Ms Cranney regarding the incident. Ms Cranney gave evidence that Ms Murray was ' very upset and crying and she said that she had seen Alan and that he had put a choker hold on patient X '. 92Dr Fostey, in oral evidence, qualified his affidavit evidence by explaining that an effective choke hold can be administered where a person may lose consciousness within 10-15 seconds: '...1 made a general statement about the loss of consciousness after 30 to 40 seconds. In making that statement, 1 was assuming the patient or any person might be struggling and there might be time to get the person actually under control, so it may take up to 30 to 40 seconds, but in a carotid restriction hold, if it's applied properly and strongly, then the patient should actually lose consciousness between 10 and 15 seconds. And then as soon as it's released, they should regain consciousness within 10 to 20 seconds'. Dr Fostey provided the Commission with a practical demonstration of a hold on the Respondent's Solicitor, Mr Gardner. Dr Fostey using his forearm applied pressure to the sides of Mr Gardner's neck. Dr Fostey's demonstration effectively applied a pressure hold on the carotid arteries with just one arm, and within seconds of the hold being applied using one arm, Mr Gardner had to tap Dr Fostey to loosen the hold. The hold applied no pressure to the windpipe (trachea), only to the side of the neck where the carotid arteries were located. It was noted that Dr Fostey did not need to pull back into Mr Gardner's throat at all for the hold to be effective although more leverage could be achieved if a person's free hand was placed on their other arm. 93Dr Fostey's evidence and his demonstration, it was submitted, rendered the Applicant's evidence highly unreliable and proved, to the contrary, that the Applicant's hold around the neck of Patient X was capable of causing the state of unconsciousness directly witnessed by Nurse Murray. 94Moreover, the Applicant's submission that the Commission should be satisfied that the Applicant did not apply a choke or carotid hold must also be rejected in light of the evidence of nurse Murray. The statements relied upon in the Respondent's investigation and the evidence of Nurse Murray was that the hold around the neck of Patient X was a choke hold. On the available evidence, it can be safely concluded that the Applicant wrapped his arm around Patient X's neck in a manner commonly called a 'sleeper' hold or 'choke' hold (or clinically described as a carotid restriction) in breach of SWAHS policies and procedures with sufficient pressure to render Patient X unconscious. 95It was submitted that even if the Commission was prepared to accept that the Applicant applied a ' victim control ' maneuver used for plays, there was no evidence that it was a safe or appropriate patient restraint technique and it merely evidenced the fact that the Applicant deliberately chose his theatrical training interests over the professional training he received to safely restrain in an aggressive patient situation. 96The Respondent submitted that the Samad principle also applied to employees who hold similar positions of trust and confidence and are working with vulnerable people. It has been held that a failure to follow procedure and use of excessive force in such situations, even when restraint was warranted, can constitute assault and warrant the dismissal of an employee. For example, assaults by teachers on students and youth officers on children in juvenile detention centres have been held to be sufficient to warrant termination: 96.1 PSA and Professional Officers' Association Amalgamated Union of NSW (on behalf of Lloyd Kerr) and Director of PE by her agent the Director-General of the Department of Juvenile Justice [2009] NSWIRComm 1034; 96.2 Director of PE by His Agent the Director-General of the Department of Juvenile Justice and PSA and Professional Officers' Association Amalgamated Union of NSW (on behalf of Elvin Brian Brown) [2008] NSWIRComm 221. A Full Bench of the Industrial Relations Commission of NSW upheld the dismissal of Brown, a Youth Officer working at a Juvenile Justice Centre in similar circumstances to this matter. Brown was dismissed for using unauthorised restraints on detainees resulting in excessive force: (a)Brown , on two occasions, had restrained detainees who had acted aggressively toward him by using methods of restraint, including a headlock, that were not within the policies and guidelines of the Department of Juvenile Justice; (b)Contrary to those policies and procedures, Brown did not seek assistance from other staff or use his duress alarm before applying the restraint; (c)The Full Bench considered that his response was not reasonable considering the comparative size of the detainee, and that "... while there were reasonable grounds for directing RD to his cabin, excessive force was used "; (d)Although the assaults were not serious, and did not result in confirmed injuries, the Full Bench considered [at 73] that Brown's actions were in breach of the Department's guidelines, which he was well aware of due to his experience and seniority: "There can be no doubt that RD was controlled, albeit the force used to achieve that result was not reasonable in the circumstances. Mr Brown was the senior employee. The policy required that he ask for assistance, instead, as he accepted, dealt alone with the situation, pushing the detainee and using unauthorised means of restraint. The result was that the force used in this instance was also unnecessary and in excess, on any view, of what the situation required." 96.3 New South Wales Department of Education and Training v New South Wales Teachers Federation (on behalf of Mossfield) [2006] NSWIRComm 210. The Full Bench of the NSW Industrial Relations Commission upheld the dismissal of a teacher who restrained a student by pushing him in the stomach despite the fact that the student had a history of violence and was acting aggressively by throwing equipment and placing fellow students at risk. The teacher had argued that his action was taken in self defence and to protect the safety of other students. The Full Bench stated: " It is difficult to conceive of any extenuating circumstances which could ameliorate the gravity of the misconduct found by Grayson DP: the assault to the back of the head of a disabled thirteen year old boy (with sufficient violence to require medical intervention) by a person in a unique position of trust and responsibility -- his teacher." (paragraph 36) and "... the act of punching Keith in the stomach sufficient to make him fall to the ground, winded, in an attempt to make him drop the hard-drive, could not, in any way, be described as proportional to the perceived risk, or appropriate, or reasonably necessary. The action did not therefore constitute self-defence. Nor was it a factor that could mitigate the misconduct involved in the action." (parag 28) 97The Respondent noted that in Mossfield the termination was found not to be harsh despite the fact that the employee's name: 97.1 Was placed on a list of people not to be employed by the Department of Education and Training without reference to the Director of Staffing Services (similar to the Service Check Register used by NSW Health); 97.2 Was held by the Commission for Children and Young People giving rise to a risk assessment should Mossfield apply for any child-related employment. 98The Respondent noted that the manner in which the Applicant ran his case suggested that his actions did not warrant the Respondent's charge of assault. Nevertheless, it was submitted that the charge was consistent with the Respondent's policy and the law on the following bases: 98.1 The Common Law defines " assault " as "an act that intentionally or recklessly causes another to apprehend immediate and unlawful personal violence": R v Knight (1988) 35 A Crim R 314. 98.2 That definition did not require actual physical harm to be suffered by the victim; 98.3 The Respondent did not resile from the fact that its investigations revealed that Patient X became unconscious. Nevertheless, even if the Applicant was able to raise some doubt in the Commission's mind about that, the Respondent contended that the conduct of the Applicant was sufficiently reckless to constitute an assault of patient X and it did involve physical contact; 98.4 The Applicant's actions were inconsistent with maintaining the dignity and respect owed to vulnerable patients and, in particular, Patient X who required special care as a patient with a mental illness. 98.5 The Aggression Management Practical Session Handout informs staff that they " may be liable for prosecution for assault if an incident of aggressive behaviour occurs under provisions set down in the NSW Crimes act 1900 ". 99It was noted that the Applicant denied that the actions he took were wrong or contrary to training or policy despite the fact that his restraint of Patient X was: 99.1 in flagrant breach of the Respondent's policies on restraint; 99.2 in high-handed disregard of the training he had received not to apply any restraint to patient vulnerable areas, particularly the neck; 99.3 inconsistent with NSW Health's established Policies and Procedures for Aggression Management; and 99.4 grossly disproportionate to the situation. 100The Respondent's procedures, which the Applicant was well aware of, required a patient to be checked for injury following any incident involving aggression. It was submitted that the Applicant, by holding Patient X around the neck, introduced an unnecessary and unacceptable level of risk of injury which heightened the need for Patient X to be reviewed by a medical officer, whether or not the Applicant believed that Patient X lost consciousness. In addition, as a Registered Nurse since 1988, the Applicant was aware that a patient needed to be reviewed following any risk of injury, particularly when there was evidence that the patient lost consciousness. Therefore, in failing to arrange for a medical officer to examine Patient X following the incident, the Applicant did not act professionally or guarantee care for a patient and thereby breached the NSW Health Code of Conduct. 101The Respondent went on to discuss the Applicant's propensity for anger. It was submitted that the Applicant has previously had issues controlling his anger and reactions to other staff and patients. In May 2009, during his performance review with Nurse Unit Manager Alit Singh, it was decided that the Applicant would be required to undergo an anger management program that included ' dealing in challenging behaviours ' . 102During cross-examination, the Applicant acknowledged that '1 didn't handle the situation well' in a separate and prior incident with Ms Murray when his reaction was to get very, very angry over a question regarding his sexual orientation. 103The Commission was reminded that the Applicant also demonstrated his propensity to aggression and anger during the proceedings. At one point, the Applicant's demeanour became so aggressive that the Commissioner found it necessary to caution the Applicant that ' there is no need to be aggressive ' and advised him " to have a drink of water, calm down and just respond to the questions ". 104The Respondent pointed out that since the Applicant's termination, it had received anonymous complaints and a complaint from a registered nurse that alleged that the Applicant had verbally and physically assaulted other patients. Those complaints and a subsequent investigation report were before the Commission. That evidence, acquired after the dismissal, further justified the dismissal and mitigated against granting a remedy: Byrne v Australian Airlines Limited (1995) 131 ALR 422 at [434]; Lane v Arrowcrest Group Pty Ltd (1990) 99 ALR at [75]. SUBMISSIONS BY THE APPLICANT 105It was submitted on behalf of the Applicant that the dismissal was: 105.1 unfair because: (a) There were other, more appropriate and more valid, options available to the Respondent in response to the Applicant's conduct, particularly in light of his otherwise clean personnel record; and (b) The Respondent had, by not taking into account the Applicant's written statement, failed to further investigate matters raised therein, one of which went to the very core of the allegation. 105.2 harsh because the Applicant is no longer able to work as a nurse due to: (a) the flawed investigation process; (b) the termination; (c) his subsequent deregistration as a nurse by the NSW Nurses and Midwives Board; and (d) his placement on the Service Check Register. 106It was contended that the circumstances in the authorities relied on by the Respondent differed markedly from what occurred in this matter and that the Applicant's reason for assaulting patient X was, in the circumstances, excusable because he was using a technique he learnt at RADA to control the " violent " behaviour of patient X.: 106.1 There was no contest that Nurse Murray had witnessed patient X being violent in the time immediate to her calling for the Applicant; 106.2 Mr Hanson had gone to the aid of Ms Murray and the two student nurses as a result of an urgent call by Miss Murray. Ms Murray gave evidence that she called out " Alan come quick, patient X was attacking the students ". The Applicant attested that what he heard was " Alan, quick, patient X's attacking the students ". It was submitted that although there was a slight difference between the evidence of what was said in the request, it was clear that there was a sense of urgency in the request. Ms Murray agreed that the reason for the urgent request was that patient X was being violent and that she was concerned for the well-being of herself and the patients. It was not disputed that the Applicant was seeking to protect the safety and well-being of Ms Murray and the student nurses ; 106.3 When the Applicant arrived at the scene, he was confronted with patient X who was in an agitated state, whom the Applicant knew to be displaying escalating violent tendencies and was positioned in front of Ms Murray and in close proximity to the two student nurses; 106.4 He was aware of past acts of aggression by Patient X. He felt that he had very little time to weigh up the various alternatives, given the possible consequences for Ms Murray and the students. 107Dr Fostey gave a physical demonstration of how a hold is properly applied and explained that the one hand is placed on top of the other hand to provide the leverage and strength for pressure to be placed on both sides of the person's neck thereby restricting the flow of blood through the carotid arteries. Dr Fostey originally estimated that it would take a person 30-40 seconds to lose consciousness after having the flow of blood through both carotid arteries blocked. Under further examination-in-chief, he revised the timeframe down to 10-15 seconds to lose consciousness if the hold is applied properly and strongly. 108The Applicant denied that he applied a dangerous choke hold or carotid restriction on Patient X. He said he placed his "good" right arm around Patient X's neck and positioned his left hand on his right elbow. Therefore, any pressure being applied by his left hand on the right elbow could not have been great because of missing digits and as such patient X would not have lost consciousness after 10 seconds. Furthermore, there was no evidence to suggest that Patient X exhibited any other signs consistent with a poorly performed "choke hold" such as gasping for breath or resisting the restraint. 109Ms Murray gave evidence that it was 10 seconds from when the Applicant placed his arm around the neck of patient X to the time patient X went limp. The Applicant admitted that Patient X went limp and fell to the ground. However, he denied that the patient fell as a result of losing consciousness. 110It was pointed out that the Applicant felt no malice towards patient X. That was confirmed by both Ms Bruinessen and Mr MacMillan under cross-examination. 111Both Ms Bruinessen and Mr MacMillan took issue with the manner in which the Applicant performed the restraint on patient X. In particular, Mr MacMillan gave evidence that the restraint on Patient X was wrong and was not conducted in accordance with the training provided or the protocols that were in place. Furthermore, Ms Van Bruinessen stated that there was no room for any flexibility under the policy to use any form of restraint other than what was taught. Nevertheless, the Respondent was unable to identify any prohibition on using the form of restraint that the Applicant used. 112It was submitted that the Operational Procedures Manual for the Management of Aggression only required sign off by a medical officer if any injury was noted. It was beyond doubt in the present circumstances that there was no injury sustained by patient X and therefore there was no requirement to call a medical officer. 113In the opinion of the Applicant, he was not required to call a medical officer because, in addition to there being no physical injury, there was no loss of consciousness by Patient X notwithstanding the view expressed by Ms Murray that patient X was ' out ' . T he Applicant based that opinion on his training, his knowledge of Patient X's physiological condition, his close proximity to him and, in particular, that patient's history of going limp. It was pointed out that the evidence was not challenged by the Respondent that Patient X did not lose consciousness. 114The investigation and evidentiary findings were undertaken by Mr McMillan and Ms Van Bruinessen and relied upon by the ultimate decision-makers. They relied upon a number of findings not supported by the objective evidence brought before the Commission, which was not made available to them, such as the evidence of Ms Cranney and Dr Fostey. 115In particular, Mr McMillan did not accept that there was any history of patient X going limp (evidence of Ms Cranney and the Applicant); he had no evidence to show that the patient was aggressive (Ms Cranney, Ms Van Bruinessen and the patient's medical records); and that the level of aggression had been increasing in the period of time leading to the event (the patient's medical records). Furthermore, he was not aware that patient X had been restrained before and from behind. In fact, when questioned as to whether he may have formed a different view had he been aware of these facts, he said that he may have reached a different conclusion including whether the Applicant had assaulted patient X. 116Additionally, Mr MacMillan and Ms Van Bruinessen determined that the Applicant had put the patient in a "choke hold" and that patient X went unconscious. It was submitted that, for the reasons advanced above, the evidence, when viewed objectively, must be that a " choke hold " was not utilised by the applicant. In particular, the form of the restraint used by the Applicant was not a correctly performed carotid or choke hold which may have resulted in patient X losing consciousness in 10-15 seconds. 117It was submitted that the Respondent's submission in relation to the principle in Jones v Dunkel must fail as the Applicant was able to provide a logical explanation as to why he failed to call those other witnesses. It was submitted that the Commission can draw Jones v Dunkel adverse inferences in relation to the Respondent's failure to call evidence from the students who were direct witnesses to the event, and from witnesses, including Mr Odigie, in relation to the alleged post termination complaints. REMEDY 118It was submitted on behalf of the Respondent that the preferable finding is that the dismissal of the Applicant was justified. 119Alternatively, and although the Respondent was not conceding that the termination was harsh, unjust or unreasonable, it was submitted that should the Commission arrive at such a conclusion, then it should not exercise its discretion to order a remedy that would re-establish the employment relationship as it would not be appropriate. 120A lack of trust and confidence is a ground for refusing the remedy of reinstatement. It was submitted that there was nothing ventilated during the course of the proceedings that could possibly restore trust and confidence in the Applicant. In fact, the Respondent's loss of trust and confidence in the Applicant had been reinforced by the Applicant's conduct as a witness, by his lack of candour and honesty, and the absence of any appreciation by the Application as to why his conduct was, and is viewed, so seriously. 121It was noted that the Applicant changed his mind, throughout the proceedings, regarding whether he was seeking reinstatement or re-employment. Having first stated that he was only requesting compensation the Applicant then informed the Commission by facsimile on 16 August 2010 that he was seeking reinstatement. On the third day of hearing, Counsel for the Applicant advised the Commission that reinstatement and reemployment with the Respondent were not pressed and the Applicant wished it to be known that it was ' not a recent decision based on those allegations contained in the objected parts '. The claim for reinstatement was confirmed on the fourth day of hearing. It was submitted that the lack of commitment by the Applicant to be reinstated indicated that he was not willing to return to work with the Respondent. Aside from the current proceedings, the Applicant has not sought reinstatement or re-employment. He has also not sought work with another employer, as evidenced by the Applicant's failure to produce any documents in accordance with the Respondent's Notice to Produce. 122The impracticability of reinstatement or re-employment in this case was also manifest because of the Respondent's obligation under s119 of the Health Services Act, which requires that protection of patients, clients and children are to be the paramount consideration of the Respondent when disciplining a staff member. 123It was submitted that neither the Respondent nor the Commission can have the necessary degree of confidence that the Applicant would not behave aggressively towards patients and fellow staff members in the future. It was open to the Applicant to undergo counseling or provide some similar undertaking. It was pointed out that the Applicant's demeanour was an absolute unwillingness, even disbelief, that any further training or counselling would be of benefit to him. 124In Budlong v NCR Australia Pty Ltd [2006] NSWIRComm 288 at [105] to [108] the Full Bench of the Commission discussed the concepts of trust and confidence in circumstances where the Courts and the Commission are considering whether to grant reinstatement: 106 1n Plummer v Stannard Bros Launch Service (2005) 1451R 111 the Full Bench stated the position as (at 115): Reinstatement is the primary remedy under s 89 of the Act: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at (34J; Little v Commissioner of Police (No. 2) (2002) 112 IR 212 at (88j; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37 at (125). Other remedies may only be ordered if reinstatement is considered to be impracticable. That requires the member of the Commission, in all cases where relief is to be ordered, to give active consideration to the practicability of reinstatement. Indeed, we considers 89(5) requires a finding that it would be impracticable to reinstate the appellant prior to making an order for compensation and in the process of making that finding to give reasons: Entertainment Distributors Company Pty Limited and Anor v Bumard and Ors (1993) 49 IR 446 at 453. 107 The Full Bench in Little (No 2) considered the test to be applied as to the practicability of reinstatement of re-employment. At paragraph [91] the Full Bench stated: It is in this light that we turn to consider the question of the practicability of reinstatement of re-employment. In this respect, we propose to apply the test in Perkins v Grace Worldwide (Aust) Pty Limited (1997) 72 IR 186 at 191-192 (which was adopted in Hollingsworth v Commissioner of Police at 341-342). 108 The focus in Perkins was on the issue of whether a loss of trust and confidence was a relevant consideration in determining whether reinstatement was impracticable and it is worth repeating what the Full Bench of the Federal Court had to say: Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Limited (Wilcox CJ, von Doussa and Marshall JJ, 13 December 1996, not yet reported). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushell (1933) 49 CLR 66 at 81-2 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based . At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee. Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee; and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive . Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be, of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable. 125Of major concern to the Respondent was the apparent failure of the Applicant to understand the severity and potential consequences of his actions: 125.1 He showed no contrition or remorse for the pain and anxiety caused to Patient X or his work colleagues, particularly Nurse Murray. That was evident during the proceedings and also evident in the document prepared by the Applicant and addressed to the nursing staff at the Acacia Ward. The document was posted on the staff notice board and made several disparaging comments about Ms Murray. When that concern was put to him, his response had been, '1 don't understand why 1 would'. 125.2 When it was pointed out to him that he had a commitment to apologise when he got something wrong, his response had been, 'But 1 haven't got it wrong'. In Brown , the employee's failure to express contrition or to accept that his behaviour had been wrong contributed to his dismissal being upheld. 126The Applicant failed to appreciate that his conduct had very serious consequences. In addition to a criminal investigation and reporting to the NSW Nurses and Midwives Board, his actions had placed a patient at risk of serious or fatal harm. 127Nurse Murray's serious concern in that regard was justified when she asked Dr Fostey the following question while reporting the incident to him: Nurse Murray : "What's the difference between a sleeper ` hold and choking someone to death?" Dr Fostey: About 6 seconds". 128It was concluded that, in the absence of any appreciation as to why his conduct was, and is viewed, so seriously, the Commission should refuse to exercise its discretion to order the Applicant's reinstatement. 129The Respondent has reasonable cause to be concerned about the Applicant's ability to manage his aggression and work in a safe manner with patients. Following his dismissal, the Respondent received a number of complaints, detailed in the evidence of Mr MacMillan and Mr Chrystal, regarding the Applicant's treatment of patients. The Respondent also conducted an i nvestigation which unco vered evidence of the Applicant assaulting and being verbally abusive to two other patients. The Respondent's policies, procedures and training regarding aggression management in the hospital are soundly grounded in the need to provide a safe place of work for its staff and for patient care. The Applicant's flagrant breach of those policies/procedures, it was submitted, are a relevant consideration in determining reinstatement or re-employment and count against a practical re-establishment of the relationship bearing in mind that the Applicant has not demonstrated that he will be able to work safely with patients if he is reinstated or re-employed. 130The Applicant is seeking the primary remedy available under the Act - an order of reinstatement, with back pay and continuity of service. 131It was argued that there was no evidence which would disclose a breakdown in trust and confidence in the Applicant sufficient to render that primary remedy impracticable. 132The allegations that were made after the Applicant, post termination, were not advanced by the Respondent in the context of termination. The Commission was asked to infer therefore that even if those allegations were sustained, which was denied by the Applicant, they would not constitute grounds for dismissal and would not render reinstatement impracticable. 133It was submitted that the question of remorse was not put to the Applicant in cross-examination. In addition, it was considered to be a preposterous submission to advance on behalf of the Respondent when all the Applicant was doing was responding to an urgent call for assistance from Ms Murray. 134It was also submitted that the so-called failure on the part of the Applicant to undertake training, counselling or provide some similar undertaking was not relevant to the Commission's consideration as to whether re-instatement or re-employment are practical remedies in the present circumstances. 135Finally, it was further submitted that it was not open to the Respondent to contend that the Applicant has "repeatedly" breached the Respondent's policies when, on its own evidence, there was only one example where the Respondent is certain that the Applicant has breached the policies. CONSIDERATION 136One issue for consideration is whether the Applicant's conduct, in assaulting a patient and then failing to call a medical officer, is misconduct justifying dismissal. 137The Applicant qualified as a Registered Nurse over 20 years ago, and has worked specifically in the mental health field for 15 years. His conduct on the day in question needs to be assessed against the provisions of the Health Services Act , the Respondent's policies and procedures and the training it has provided in relation to aggression management. 138The various safety systems in place at Cumberland Hospital have been outlined in detail above. Whether or not Ms Murray said that Patient X "was" or "is" attacking the student nurses is not crucial to a determination of the proceedings. Firstly , if the Applicant was correct that Nurse Murray said to him that the patient "is" attacking the students and he assumed that the attack was still in progress, he nevertheless did not think the situation required the calling of a green alert. Secondly , and more importantly, when he arrived on the scene, as nurse in charge, he should have been in command of the situation and assessed what needed to be done. Patient X was already being restrained by Nurse Murray who had hold of both his hands. It was common knowledge that taking hold of his hands calmed Patient X down. The Applicant could see that the patient was standing still and the student nurses were standing nearby. Neither Nurse Murray nor the students nor indeed the other patient were in any immediate danger. Thirdly , the Applicant had other techniques and procedures available to him as the situation had diffused by the time he arrived on the scene. 139The Applicant underestimated the aggression management training that he had received in the Respondent's employment. I note that he did not raise it as an issue during the investigation process or in his letters responding to the investigation outcome. The evidence from the other witnesses certainly does not support the Applicant's allegation in that regard. There was evidence from the Applicant's own witness that she had received special training, including lectures and practical demonstrations on evasive techniques and, in particular, on how to deal with that particular type of aggressive incident. H is many years of experience in mental health nursing operates against him in this regard. There was absolutely no reason for the Applicant, in the present circumstances, to use any technique or procedure not taught to him by the Respondent and particularly when de-escalation techniques were to be utilised first. 140In arriving at what training is required by the staff at the Hospital, it would appear from the evidence that the Respondent took into account the safety of its staff and, most importantly, the protection of vulnerable patients. Irrespective of the size, height or conduct of the patient, a mental patient is more vulnerable and the duty of care owed to mental patients is greater. 141The evidence before the Commission is that the Applicant was taught that every effort must be made to safeguard the patient's vulnerable areas which were identified as the neck, throat, chest and abdomen. The Applicant acted in complete disregard of his training. 142The evidence also indicated that the Applicant was taught that any restraint must be proportional to the patient. The evidence indicates otherwise - the Applicant was taller and heavier than Patient X. 143It is of grave concern to the Commission that the incident occurred a mere fortnight after the Applicant received refresher training on aggression management and were provided with a relevant handout. 144Having observed both Mr Lahner and the Applicant giving oral evidence, I prefer the evidence of the former in relation to what techniques were taught during the training. I accept Mr Lahner's evidence in relation to the sleeper hold. He denied that the showed the Applicant how to apply one. Rather, he had specifically warned against applying it to patients or at home with family or at any other time, he had warned the Applicant never to apply pressure around the neck or chest area and taught him how to get out of a sleeper hold. 145I accept that with his length of experience, he should have known his conduct on 16 October 2009 was unacceptable and that his steadfast refusal to accept that what he did was wrong evidences a denial to accept that he owed a duty of care to Patient X and was a breach of his contract of employment. 146The Applicant must have realised that his reaction to the incident was wrong. His error was compounded by the fact that he failed to call a medical officer to examine Patient X following the incident despite the fact that Patient X lost consciousness. I accept that the Patient lost consciousness as Nurse Murray was in a better position to see his face than was the Applicant and the evidence confirms that consciousness was lost. 147In the circumstances, the Respondent cannot have any trust and confidence in him continuing to deal with mental patients having breached those implied terms in his contract. 148The Applicant claims that the placing of his name on the NSW Health Service Check Register renders his dismissal harsh, as he is "unlikely to ever be employed in the Public Sector Health industry'. I note that this does not automatically preclude the Applicant from employment with NSW Health in the future nor is the Service Check Register available to the private sector and therefore will have no effect on the Applicant's chance of employment in the private sector. 149I find that the Respondent's decision to dismiss the Applicant was not harsh, unjust or unreasonable. 150Matter No. IRC 176 of 2010 is hereby dismissed. I Tabbaa 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. Decision last updated: 05 May 2011