Industrial Relations Commission New South Wales Medium Neutral Citation: Peter Redmond and Director General, NSW Department of Health, on behalf of the Ambulance Service of NSW [2011] NSWIRComm 1051 Hearing dates: 2-4.2.201122.3.2011 Decision date: 13 October 2011 Before: Tabbaa C Decision: The dismissal of the Applicant was not harsh, unreasonable or unjust. The claim is dismissed Catchwords: Unfair Dismissal; 22-year exemplary prior service; alleged maladministration of a Schedule 8 drug; whether Fentanyl was administered intravenously or intra-nasally ; procedural unfairness; Legislation Cited: Operational Ambulance Officers (State) Award Ambulance Services Regulation 2005 Cases Cited: Concut Pty Ltd v Worrell (2000) 103 IR 160; Byrne v Australian Airlines (1995) 185 CLR 410; Blythe Chemicals v Bushnell (1933) 49 CLR 66; Brown v Dunn (1893) 6 R 67 (HL); MWJ v R (2005) 80 ALJR 329; Miller v Commissioner of Police [2002] NSWIRComm 296; Mason v Electricity Commission; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; NSW Nurses Association v Booroongen (2007) NSW IR Com 89; Cooks Construction Pty Ltd v Brown & Anor [2004] NSWCA 105; Jones v Dunkel (1959) 101 CLR 298; Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572; O'Donnell v Reichard I (1975) VR 916; Commissioner of Police v Alyson Reid-Frost (2010) NSWIR Comm 2; R v Anderson; ex parte IPEC-Air Pty Ltd 1965 113 CLR 117; Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; Antonakopoulos v State of NSW (1999) 91 IR 385; R v Valera [2002] NSWCCA 50; Metropolitan Meat Industry Board v Australasian Meat Industry Employees Union, NSW Branch [1973] AR 231; Electricity Commission NSW t/as Pacific Power v Nieass (1995) 81 IR 46); Carlton & United Beverages Ltd & Phillip Brunt [2006] NSW IR Com 98; Texts Cited: Concise Oxford English Dictionary Webster Dictionary Category: Principal judgment Parties: Mr T Edwards (Applicant) Harris Wheeler Lawyers Mr S Prince (Respondent) Lander & Rogers (Solicitors) Representation: Mr T Edwards Harris Wheeler Lawyers (Applicant) Mr S Prince Lander & Rogers Solicitors (Respondent) File Number(s): IRC 428 of 2010 DECISION 1Mr Peter Redmond ("the Applicant"), commenced employment with the Ambulance Service of New South Wales ("the Respondent") on1 February 1988 as a full-time Ambulance Officer pursuant to the terms and conditions of the Operational Ambulance Officers (State) Award. 2The Applicant progressed from probationary ambulance officer through levels 2 and 3, undertook rescue training and passed his level 5 qualification course. As a level 5 he was able to administer Lasix, a diuretic. He was unable to administer that drug as a level 1, the level he was reduced to as a result of a work-related psychological injury. 3The Applicant remained in that position until his subsequent termination for alleged misconduct on 14 May 2010 during an incident which occurred on 8 November 2009. 4Except for the incident outlined below, and apart from a reprimand received in 2008, the Applicant had not been subject to any prior formal or informal disciplinary proceedings during that 22-year employment and had, in fact, received commendations and letters of appreciation. 5He voluntarily reported administering Lasix to a patient on 11 January 2008. It was an emergency situation, no other treatment had worked and no level 2 Paramedic was available to attend the scene. He had received a reprimand despite the fact that the patient had recovered successfully. MORPHINE v FENTANYL 6Paramedics administer morphine intravenously. 7Fentanyl is a liquid narcotic that is prepared as 900 micrograms in a three ml. vial. Fentanyl, administered intravenously, has the potential to place the patient's safety at risk. For that reason, the use of Fentanyl by Paramedics is limited to intranasal use only. The administering of "intravenous" Fentanyl is conducted in a hospital only. 8The Respondent's Handbook, titled "Protocols and Pharmacology" (July 2009) stated as follows in relation to the drug "Fentanyl": ACTION (1)Potent analgesic (2)Effective drug for intranasal use because it is rapidly absorbed across mucous membranes The Handbook set out the dosage to be given and instructed that it was to be administered by spraying the dosage in alternate nostrils. BACKGROUND 9On 8 November 2009, the Applicant, was partnered for the first time with Ambulance Officer Level 1, Amanda Horgan. The standard operating procedure of a team is that the passenger or non-driver on that shift has the patient care for that particular shift and therefore has control over the treatment of the patient. On the shift in question, Officer Horgan was the driver and the Applicant was the patient carer. 10At the commencement of a shift, the patient carer signs out the narcotics into their custody from the restricted drug safe at the Ambulance station. The narcotics include Fentanyl which is kept separate from the delivery system. The delivery system, contained in one package, consists of the mucosal atomizing device ("the MAD"), 1 ml syringe and a separate drawing up needle. 11Officers Redmond and Horgan attended a job at Baulkham Hills to find the patient, Mr B, lying on his back with his knees flexed but feet upon the floor in his lounge room - a classic position for someone with lower back pain. The Applicant commenced to provide Mr B with pain relief by administering Methoxyflurane by way of an inhaler administered through a green tubular type applicator. 12The Applicant judged Mr B's pain to be still quite severe and therefore administered Fentanyl. 13Officer Horgan left the room to return to the vehicle to retrieve the stretcher. When she returned, the Applicant was in the process of cannulating Mr B's right hand. Upon completion of the process, he flushed the cannula with saline. 14Mr B had effective pain relief and was able, with the assistance of the Applicant, ambulate to the stretcher which was outside the house by the front door. The Applicant remained with Mr B until he was admitted into hospital. 15The Applicant undertook two more night shifts and then had four days off roster. 16Officer Horgan said she made a notebook entry of concerns over that incident over four shifts between 8 - 11 November 2009. On 11 November 2009, crying and quite upset, she approached Acting Station Officer Claire Maguire to tell her that she had observed " Reddo's given IV Fentanyl " (meaning he had administed Fentanyl intravenously rather than intranasally). ASO Maguire telephoned Stuart Goulay, the Acting District Manager of Sydney North Sector and then handed the telephone to Officer Horgan. Stuart Goulay obtained a telephone report from Officer Horgan. 17On 12 November 2009, Officer Horgan completed an Incident Information Management System ("IIMS") report on the incident 18On Monday, 16 November 2009, the day before he was to return to roster, the Applicant received a telephone call from Inspector R Schivers who informed him that he was to undertake alternate duties instead of ambulance duties but was unable to provide him with a reason. The Applicant proceeded on long term sick leave until 5 December 2009 and then annual leave until 26 December 2009. Also on 19 November, 2009, the Chief Executive, Greg Rochford, appointed Rick Hamilton, the District Manager-Sydney North Sector, as a Welfare Support Officer for the Applicant. 19The Chief Executive, by letter dated 19 November 2009, appointed Ms Fiona Leitch of the Professional Standards and Conduct Unit ("the PSCU") to undertake an investigation into an allegation of misconduct against the Applicant. 20On Friday, 27 November 2009, the Applicant was served with a letter from the Chief Executive advising him of the allegations against him. The allegations were that the Applicant, on 8 November 2009 at Baulkham Hills 20.1 diluted an unknown dose of Fentanyl with a saline solution; 20.2 administered a diluted dose of Fentanyl to a patient, Mr B; 20.3 administered that diluted dose intravenously (I/V) to Mr B; 20.4 contravened Pharmacology Protocol 225 for each of the above allegations; 20.5 incorrectly completed the Patient Health Care Record ("PHCR") J930203 stating that 180 mcg of Fetanyl had been administered to Mr B when the Applicant would not have known the dosage that was delivered; and 20.6 sought to deceive by stating on the PHCR J930203 that the Fentanyl was administered via the route "I/N", meaning the use of the intranasal kit. The Applicant was advised that the Chief Executive had decided to treat the allegations as a disciplinary matter (as opposed to a fact finding investigation) pursuant to clause 18 (1)(a) of the Ambulance Services Regulation 2005 (NSW). 21The Respondent also contended that the Applicant had conducted himself in a manner designed to deceive both the patient and the Respondent about the treatment administered and to encourage a junior Paramedic to breach the Respondent's protocol. 22The Applicant was interviewed by Ms Veitch on 18 December 2009. All interviews were digitally recorded. 23The Investigation Report was provided to the Chief Executive on 16 February 2010 attached to which was material obtained in the course of the investigation and considered for the purpose of the report. 24The Chief Executive formed a preliminary view on 16 February 2010 to accept the investigation findings. He asked the Acting Assistant Director of the PSCU to obtain clinical advice on the seriousness and significance of administering Fentanyl by the intravenous route. 25On or about 22 February 2010, the Chief Executive caused a letter to be delivered to the Applicant advising: * that a decision had been made to take disciplinary action; * that the severest penalty that may be imposed was dismissal; * that the Applicant could make submissions and provide any information he wanted taken into account; * what would be considered when making a decision on action to be taken. 26Submissions on behalf of the Applicant were received from his Solicitors on 24 March 2010. 27During the course of a meeting with the Applicant and others on 12 April 2010, it was identified that Mrs B was a witness to the incident and had not been interviewed by the Investigator. The Chief Executive undertook to have Mrs B interviewed by the Investigator, the transcript of the interview provided to the Applicant and a further opportunity given to the Applicant to make submissions. 28The Chief Executive, on 16 April 2010, requested Ms Leitch to undertake further enquiries and to interview Mrs B. 29On 3 May 2010, the Chief Executive considered the previous investigation material, the further investigation material dated 30 April 2010, the submissions received from the Applicant's solicitors and the submissions made during the interview with the Applicant. He again determined that, on balance, the statement of events by Officer Horgan held greater weight and that the allegations against the Applicant were made out. The Chief Executive next considered the 5 February 2010 response to his enquiries regarding the clinical significance of the Applicant's conduct. The response confirmed his own view " that the conduct described raised significant clinical risks and involved deliberate acts substantially beyond the bounds of acceptable paramedic practice ". He determined that dismissal was the appropriate penalty. 30On 3 May 2010 the Chief Executive wrote to the Applicant advising that, as a result of the Applicant's submissions, he had caused further inquiries to be made. The Chief Executive attached a copy of the report resulting from those further inquiries. He advised the Applicant that his view had not altered in relation to the maximum penalty being considered and invited him to make further submissions within 14 days. 31On 13 May 2010 the Chief Executive received a response from the Applicant dated 7 May 2010 declining to make any further submission or to participate in any further interviews. The Chief Executive arrived at the conclusion that the investigation process had found eac h of the allegations against the Applicant was sustained and that dismissal was an appropriate penalty given the seriousness of the allegations and the risk the Applicant posed to patient safety. 32On 14 May 2010 the Chief Executive wrote to the Applicant terminating his employment. 33The Applicant is seeking reinstatement to his former position and monetary compensation. THE ISSUES FOR CONSIDERATION 34The key issue for determination is whether Officer Horgan or the Applicant is to be believed about whether the latter administered Fentanyl intravenously to Mr B on 8 November 2009. 35The Applicant denied categorically that he had ever administered Fentanyl intravenously or administered it to Mr B. 36The Respondent submitted that the resolution of that question ultimately depended on the assessment of the evidence of the Applicant who provided a blanket denial of ever having administered Fentanyl intravenously and the evidence of Officer Horgan who stated that she saw the Applicant administer the Fentanyl through a cannula with her own eyes. 37The Respondent also submitted that if the Commission accepted the Applicant's evidence then he would be reinstated. 38If, however, the Commission accepted Officer Horgan's version of events, then the Applicant's constant denials would be rejected and he would be held to have lied to the Respondent and to the Commission in the most serious of circumstances. The Respondent pointed out that the Applicant did concede that if Officer Horgan's evidence was accepted, then he would be held to have been lying to both his employer and the Commission and that such conduct would amount to serious misconduct. 39The Respondent concluded that, in such circumstances, it would be unthinkable that a person who engaged in such conduct could be reinstated to a position of trust within the New South Wales Government and, in particular, the New South Wales Ambulance Service. THE EVIDENCE AND SUBMISSIONS 40Both the Applicant and Officer Horgan gave evidence before the Commission. Mr and Mrs B were not called to give evidence before the Commission. However, they had been interviewed by the Investigator and had provided statements which were attached to the affidavit of Mr Rochford. The evidence of Ms Amanda Horgan 41Ms Horgan, who partnered the Applicant on 8 November 2009, gave a telephone report on the incident to Mr Stuart Goulay, on 13 November 2009. The latter noted the conversation in a file note which stated, in part: ".... Amanda then witnessed him drawing up a second dose of Fentanyl, did not check the amount with Amanda, and administered it via by intranasal route...." It was submitted on behalf of the Applicant that the above description was at odds with the description given by Officer Horgan in her record of interview and her affidavit. 42Although Officer Horgan disagreed with Officer Gourlay"s record, the latter was not called to give evidence in support of his file note. The Applicant pointed out that it would be unusual for someone like Officer Gourlay to make a recording error of that nature given the seriousness of the allegation. 43It was submitted by the Applicant that Officer Horgan demonstrated, during cross-examination, that her evidence was both inaccurate and unreliable: 43.1 She identified annexure "C" of her affidavit as a document she had completed on12 November 2009. During cross-examination, she conceded that her affidavit evidence was wrong in that the document was neither prepared by her alone nor completed on the said date ; 43.2 She said she prepared contemporaneous notes, at different times but sequentially, over the shifts that she worked with the Applicant between the period 9 and 12 November on three pages in an everyday household writing pad which she used to write notes to herself about household and general matters. She stated that she had earlier and later entries in the notebook. She said that she kept notes of the incident because " I was concerned that it was a serious matter and that I wanted to have a memory of it ". The notes were so important that she kept the three pages in question and threw out the rest of the writing pad. She conceded that she was aware that her record of interview with the investigator, Ms Leitch, was important. Yet, despite all of the above, * she failed to take the said notes to the interview with the investigator; * she failed to produce those contemporaneous records either to that investigator or to the Respondent; * she failed to mention that she possessed any notes on the incident to the investigator who was investigating precisely the matters to which the notes pertained; and * the notes only became evident at the time of execution of her statement for these proceedings. The Applicant noted that an examination of the original notes tendered in the proceedings revealed no indentations made by earlier or pre-existing entries. In addition, it was apparent from the format of the writing that the notes were written at the one time but not over a number of days. The Applicant argued that, taking into account the physical nature of the notes and the fact that they were not made available to the Investigator, it was most likely that Officer Horgan made those notes at a later time. 43.3 The interviews with the investigator were recorded, transcribed and sent to each participant for approval or correction. Officer Horgan chose to edit her response to question 35 because " it just didn't flow properly " and it did not make sense to her. She attach the typed edit as an addendum to the original transcript. The Applicant argued that a proper analysis of the amendment revealed that it was more consistent with an omission as opposed to a correction as: * Officer Horgan admitted that she omitted the words "In which if the Methoxy hadn't done the job, hadn't been working or right." from the second answer . * Officer Horgan conceded that she may well have said those words and she conceded that she was unaware why she had omitted them in the edited version. A relevant reason, the Applicant submitted, was that the cannulation by the Applicant was, in fact, a proper cannulation for a proper reason, that is to say, in case the " Methoxy hadn't done the job ". That was the very reason the Applicant gave for cannulating the patient. 43.4 The complete file of the investigation tendered in the proceedings contained an email exchange between Ms Leitch and Officer Horgan. It commenced with an email from Ms Leitch, dated 4 January 2010, in which she said to Officer Horgan, "I'll be in touch when I'm going to send everything as there'll be lots of corrections (that I've done) to initial and any of your own!!" Yet Officer Horgan gave evidence that it was she who had made the corrections. It was submitted by the Applicant that the unusual state of affairs had not been explained and Ms Leitch was not called to explain her amendments. 44The Applicant pointed out that there was no evidence of any ill effect from what Officer Horgan alleged that the Applicant had done nor did she express any concern about any effect at the time. She merely reported what she thought to be the Applicant's conduct on the basis that "Its not supposed to be given intravenously ". 45It was submitted by the Applicant that t he totality of the evidence was contra indicative of the use of Fentanyl by way of intravenous injection. 46Mr McCarthy, in affidavit evidence, provided a description of a Fentanyl intravenous injection as a quick acting analgesia with the peak effect of the drug occurring within several minutes. Mr B described the analgesia effect as 'It gradually improves through the process' , a description which was consistent with the evidence of both the Applicant and Ms Horgan Redmond: Now yes I could have given more Fentanyl [internasally] but that takes 2 to 6 minutes to work whereas intravenous morphine has an immediate effect Q. You said it takes 2 to 6 minutes for the Fentanyl to work? A. Yes to start to work yes Q. To start to work? A. Yes it takes up to 20 minutes for it to become fully effective given intranasally' Q. So you know that intravenous Fentanyl acts more quickly than intranasal Fentanyl? A. Yes I do, yes. Ms Horgan confirmed the above propositions: Edwards: But you agree that it's not - sorry, the intravenous injection of a class 8 drug in most cases, I'd suggest, has an immediate pain relief effect. Would you agree with that? A. Correct. Ms Horgan also agreed that generally intranasal delivery of fentanyl has a slow pain relief effect rather than immediate 47It was concluded by the Applicant that the evidence was consistent with the proposition that no Fentanyl was given by intravenous injection as the analgesic effect on Mr B was not consistent with Fentanyl being injected intravenously 48It was submitted by the Applicant that his evidence must be preferred to that of Officer Horgan and that her evidence was not persuasive enough to convince the Commission to make a finding that there was misconduct by the Applicant warranting his summary dismissal. 49It was also submitted on behalf of the Applicant that the Commission would not be satisfied that the onus had been discharged by the Respondent in establishing that there was misconduct justifying the Applicant's summary dismissal. 50The Respondent explained that it was plainly difficult for Officer Horgan to give such evidence against the Applicant. She gave clear evidence that it was a very difficult thing for her to do because she respected him and also felt intimidated by informing on a much more senior Officer. She was not motivated or effected or influenced by self-interest to manufacture her evidence. It was never suggested to Officer Horgan during cross-examination that: * she had manufactured her account of seeing the Applicant administer the Fentanyl intravenously; * she may have been mistaken about she had witnessed; or * by reason of some physical obscuring of her view, she could be mistaken in her recollection. 51It is a known fact that a cannula is used in circumstances where no other drug, normally administered intravenously, is used. The Respondent pointed out that Officer Horgan's evidence was consistent with the known facts, was based on an actual recollection and was consistent. She appeared as a witness of truth and had no motive to lie and therefore her evidence should be accepted. 52The Respondent noted that: * there was no suggestion that Officer Horgan had other than an unblemished and distinguished record as an Ambulance Officer; * she had given her evidence in a forthright, helpful and serious manner; * she had properly readily conceded points advanced by counsel for the Applicant when appropriate and without qualification or argument yet none of those points to which she agreed diminished the reliability of her evidence in any way; * her demeanour impressed as a witness who was doing her utmost to tell the truth; * her version was consistent with the uncontroversial evidence that the Patient had a cannula inserted into his hand. 53The Respondent pointed out that Officer Horgan gave evidence that she had entered the following IIMS record into the Respondent's computer system on 12 November 2009, shortly after the events of 8 November 2009 : Pt had 10 out of 10 back pain officer Redmond commenced analgesia with methoxyflurane. According to the phcr there was minimal affect [sic] with the methoxyflurane and officer Redmond requested fentanyl to be drawn up. I drew up 0.4mls (120 mcgs) and attached the atomiser and handed the complete unit to officer Redmond. Officer Redmond then removed the atomiser and drew up 0.9% nacl [sodium chloride solution] in the same syringe that had the fentanyl in it. Officer Redmond then administered a portion of this solution IV [intravenously]. The remainder of the syringe was then given IN [intranasal]. 54The Respondent took the Commission through what was contended to be failed challenges by the Applicant designed to impugn Officer Horgan's evidence. 55One of those challenges involved the alleged inconsistency of Officer Gourlay's record of a hearsay conversation with Officer Horgan entered by him on 12 November 2009. That record was not in evidence as it was not tendered by the Applicant once it was established that it was not evidence from Officer Horgan 56The Respondent pointed out that the Applicant did not take advantage of the opportunity to call Officer Gourlay to give evidence to establish any prior inconsistent statement by Officer Horgan. Two Syringes Theory 57It was pointed out by the Applicant that the Respondent brought no evidence that would explain the syringe found by Mrs B after the Officers left. It was concluded that the evidence was only capable of one interpretation and that was that there were two syringes - one for the flush and the other for the MAD system. 58It was submitted by the Applicant that the following extract from the interview of Mrs B by the Investigator was consistent with there being two syringes: Mrs B: someone putting in the cannula and the man asking for something and the woman handed him a syringe. Leitch: And do you know what happened to that syringe? Mrs B: The syringe ended up on our coffee table. Leitch: So when you returned home, you found, paraphernalia bits and pieces left over? Mrs B: Basically just the syringe and maybe some tapes, you know where you pull something off before it is stickered on. Leitch: The syringe that you found, did it still have anything in it? Mrs B: No. 59In relation to the procedure adopted for the disposal or other use of the MAD system, the Applicant pointed out that Officer Horgan gave evidence to the effect that the MAD would not be left at the patient's house for the very good reason that further delivery might be necessary. Officer Horgan agreed that it was possible that there were two syringes used although she would not concede that the nasal device was administered properly: Edwards: One explanation is that there were two devices that day, the nasal delivery system with the white cone and an ordinary everyday syringe without any extra component. That is an explanation isn't it? A: Yes. Q: And if there were two syringes in that fashion, what's happened is that Mr Redmond had used one to flush the cannula, do you agree that's possible? A: Possible. It was submitted by the Applicant that such evidence cannot be ignored by the Respondent. 60Officer Horgan was adamant that the MAD device, including syringe, was taken with them. It was submitted by the Applicant , that it would be unlikely, given how serious she estimated the situation to be, to have forgotten or failed to notice the taking away of the MAD device. 61In the record of interview, Officer Horgan stated that she did not see the syringe of Fentanyl again. It was pointed out by the Applicant that there could not have been any confusion as to the straightforward and sequential questions posed by the interviewer: Q: Now, at that stage Mr Redmond has removed the mucosal atomising device? A: That's correct. Q: And using the 1ml syringe containing Fentanyl, what has he done then? A: He's drawn up an amount of flush in the syringe, but I'm not aware of how much he drew up. Q: Did you see - what happened to the vial of sodium chloride at that point? Did he put it down? A: Yes he would have, yeah put it down somewhere. It wasn't given back to me. Q: So you have no way of knowing how much had been removed at that point? A: No. Q: Did you then see the syringe of Fentanyl? A: Again? No, I didn't ... 62Officer Horgan was taken through that exchange during cross-examination. The Applicant pointed out that she had agreed that, upon a proper reading of the sequence of questions and answers, her answer meant that she did not see the syringe again after drawing up the flush. She later explained what she meant: "I was meaning after it was given IV did you see it again? Like, through the rest of the job. No I didn't see it again." 63Officer Horgan agreed that the above answer she gave in cross- examination was inconsistent with not seeing the syringe of Fentanyl again. It was submitted by the Applicant that the concession was important because it was consistent with the Applicant having the Fentanyl syringe with the MAD, and using a separate syringe to flush the cannula. 64The Applicant pointed out that the statements of Mr and Mrs B suggested that Officer Horgan was incorrect in her recollection. 65It was concluded on behalf of the Applicant that the Respondent had not discharged its onus in that regard. 66The Respondent pointed to another failed challenge by the Applicant to impugn Officer Horgan's evidence. It was submitted that the two syringe theory was based on a flawed assumption taken from evidence which did not support the foundation. In other words, just because it was normal practice for an Officer to take the syringe with Fentanyl with them when they left the site, as was Officer Horgan's practice, then it was assumed that there were two syringes and that the Applicant had applied that practice and taken the syringe with Fentanyl when he left the home of Mr & Mrs B. 67The Respondent pointed out that Officer Horgan's evidence was consistent. Following the intravenous administration, there was administration of an intranasal dose at the house. She said that she did not know what happened after she left the house nor what happened in the back of the ambulance. She did not give evidence that she saw the Applicant take any syringe from the premises and could not have known what the Applicant did with the syringe. 68The Respondent also pointed out that in their interviews with the Investigator, neither Mr nor Mrs B identified with any precision the substance that the syringe on the table had been used for. It was argued that there was no basis for the Applicant to suggest that " the evidence is only capable of one interpretation ". It was equally available to both parties to interpret the situation to their advantage. The Respondent could equally argue that there was one syringe which had been used in the manner described by Officer Horgan. 69The Respondent argued that the issue as to what happened to the syringe after the event was immaterial. Unlike Mr & Mrs B, Officer Horgan had direct knowledge of what was in the syringe because she had actual recollection of drawing the Fentanyl, handing it to the Applicant, seeing him draw the flush up into the same syringe and administering the substance in that syringe intravenously to Mr B. Failure to call Mr & Mrs B to give Evidence 70The Applicant pointed out that, although the statements of Mr & Mrs B were tendered for an apparent non-hearsay purpose, that evidence was capable of proof of the facts contained in their prior representations. 71Mr B, the patient, and Mrs B, who was present during treatment, were interviewed by Ms Leitch. The records of interview were tendered to establish the circumstances that were considered by Mr Rochford when he exercised his statutory power of dismissal. The Applicant submitted that they, therefore, became evidence capable of establishing facts. 72The Applicant pointed out that, as authors of the statements, both Mr & Mrs B became witnesses, being persons who were able to give evidence about a fact and whose evidence had been admitted to trial. Nevertheless, neither was called for the purposes of cross-examination notwithstanding the call made by the Applicant. It was submitted that, in such circumstances, the Respondent cannot assert that their evidence was of no weight. 73Mr B provided the following sequence of events in his record of interview: Q: Fair enough, so to reiterate this you were given the whistle, then something's put up your nose? A: Yes. Q: Then you had a cannula placed in the back of your hand? A: Yes. Q: And something called a flush was put into that cannula? A: Correct. Earlier in that interview, Mr B made it clear to Ms Leitch that Mrs B knew the sequence of treatment. The Applicant submitted that, despite that, no effort was made by Ms Leitch to confirm that information with Mrs B. Ms Leitch initially held the view that Mrs B could not have seen much and did not interview her until 20 April 2010, approximately five months after the event. 74The Applicant pointed out that Mrs B was not asked about her husband's contemporaneous statement that she had told him the sequence of treatment had been green whistle, nasal, then cannulation. 75The Applicant concluded that the weight of the statement evidence of Mr and Mrs B was increased as it must be taken to be read at its highest interpretation: O'Donnell v Reichard I (1975) VR 916 at p 921 76O'Donnell was also relevant for the proposition that the presumption to be raised against a party exists where it would be natural for one party to produce the witness or the witness would be expected to be available to one party rather than the other. 77The Applicant submitted that, given the circumstances of the investigation, it would have been appropriate for Mr and Mrs B to be called by the Respondent to give evidence. T he Commission was invited to draw a Jones v Dunkel (1959) 101 CLR 298 inference from the Respondent's omission to call Mr and Mrs B to give evidence - that their evidence would have been unflattering to the Tribunal's consideration of Officer Horgan's evidence. 78In Cooks Construction Pty Ltd v Brown & Anor [2004] NSWCA 105 P32 & 33 the Court of Appeal gave a succinct description of the rule in Jones v Dunkel: 32 As to this point it must be borne in mind that Jones v Dunkel is actually just one aspect of a wider principle. That wider principle is that in judging evidence the Court has regard to the material available to a party. If the person that the Court is considering is a person who does not bear the onus of proof and that person fails to call a witness, the inference may be drawn that the witness is not likely to assist the person's case. That is Jones v Dunkel itself. 33 If on the other hand the person bears the onus and has a witness which he or she does not call then the Court takes that into account when assessing the evidence as a whole. As good an illustration as any of that point is the judgment of Hodgson JA in Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 at 576-7. It is that second aspect of the rule that is really relevant in the present case and it is with respect inaccurate to tag it as a Jones v Dunkel point. However, the tag " Jones v Dunkel " does not detract from the point her Honour was making that she can take into account when a witness is not called by a person who bears the onus when she is evaluating whether the onus of proof has been established." 79The Applicant concluded that the failure by the Respondent to call Mr & Mrs B to give evidence must weigh heavily against it when the Commission evaluated the onus cast upon the Respondent to establish the misconduct. The Evidence of Mr Peter Redmond 80The Applicant pointed out that it fell on the Respondent to satisfy the standard or test laid down in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 by discharging the onus of proving that there was misconduct justifying the summary dismissal. On that basis, the starting point is the presumption that members of our society do not ordinarily engage in fraudulent or criminal conduct. 81It was submitted by the Applicant that it is upon that basis that the Courts have held that a finding of guilt of such conduct should not be lightly made against a party to a civil litigation, on the balance of probabilities: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449. 82It was also submitted by the Applicant that it is against the test laid down by Dixon J in Briginshaw that the evidence must be analysed: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the questions whether the issue has been proved ..." [at p 362 83It was pointed out by the Applicant that there was no evidence before the Commission that the Applicant was anything other than a competent practitioner. 84It was submitted by the Applicant that the proper presumptions against the Applicant misconducting himself were: 84.1 The Applicant's 22-year service without any previous disciplinary action against him; 84.2 There was no suggestion that the Applicant was other than a capable, conscientious and able ambulance officer prior to this incident; 84.3 There was no suggestion that the Applicant benefited from his conduct; 84.4 It would be highly unlikely that the Applicant would breach protocol in the presence of an Officer he hardly knew and especially on their first shift together; 84.5 There was no purpose to be served by him in breaching conduct to administer Fentanyl in lieu of Morphine when he was permitted to administer the latter as an analgesic; 84.6 The further investigations of the Respondent, including the interviews with Officers Bird and Blackburn, failed to reveal any other circumstance or tendency to discharge the presumption being given to the Applicant. 85It was submitted by the Applicant that once the evidence was properly balanced, it would be revealed that the Respondent had not discharged its onus: NSW Nurses Association v Booroongen (2007) NSW IR Com 89 86It was also submitted by the Applicant that the Commission must satisfy itself that there existed misconduct and not merely conclude that the Chief Executive Officer must be correct. 87The Applicant pointed out that there was lengthy cross-examination by the Respondent in relation to the PHCR. In particular, the Applicant was required to read from, and interpret, the PHCRs that showed a relatively short snapshot of his career. An examination of the records over that 10-month period, it was submitted, would result in an appreciation of the significant number of "jobs" that the Applicant attended over his 22 year length of service. That evidence demonstrated the Applicant's vast experience and significant knowledge. 88It was pointed out that, despite repeated questioning by the Respondent, on a number of occasions, about the reason for the cannulation of Mr B, the Applicant consistently stated that he cannulated Mr B for the purpose of giving him morphine if the Fentanyl was not effective. It was concluded that there was no evidence that would cause the Commission to doubt or reject the Applicant's evidence. 89The Respondent pointed out that the Applicant had not provided a convincing explanation as to why he could not recollect the incident when questioned at the interview by Ms Leitch: 89.1 The Applicant stated that he had been kept in the dark for four weeks as to what allegations had been made against him. 89.2 He gave evidence that he did not have time to consider the allegations that had been made against him; 89.3 When confronted with documentary evidence, he conceded that he had been in possession of the full allegations for 17 days prior to the interview; 89.4 His evidence then shifted to suggest that the allegations were a misunderstanding that would be cleared up; 89.5 He eventually admitted that the chronology of the allegations, investigation and taking of action by the Respondent were very different to what he had stated; 90The Respondent pointed out that the Applicant ultimately conceded that: 90.1 He had been provided with a particularised set of the allegations made against him on 30 November 2009; 90.2 He had been provided with an opportunity to give his version of events in the interview with Ms Leitch on 18 December, 2009 90.3 He had received a copy of the Investigation Report prepared by Fiona Leitch dated 1 February 2010 on 23 February 2010; 90.4 His lawyers had made submissions on his behalf on 24 March 2010; and 90.5 He had attended a meeting with the CEO on 12 April 2010 91It was submitted on behalf of the Respondent that the Applicant's responses during the original investigation, his affidavit evidence and documentary evidence were implausible, contradictory and inconsistent and did not withstand the scrutiny of cross-examination. 92It was noted by the Respondent that the Applicant oscillated between having no recollection of the incident to developing a clearer recollection to not having a specific recollection but speculating about his general procedure. In that regard, the Commission's attention was drawn to the following: 92.1 During the course of an interview on 18 December 2009, the Applicant stated that he had no recollection of attending Mr B's house at Baulkham Hills on 8 November 2009 and no clear recollection of events at that house. His only initial recollection was that the job was so " routine " that he had no cause to ponder it at all " The job itself was of no significance to me...it was just routine "; 92.2 The Applicant asserted that he developed a clearer recollection with " pondering " the allegations, the investigation reports and accompanying material and, in fact, his recollection at the time of the hearing was much better than it was at the time of the initial interview: Prince: But you have no direct recollection of Mr B's case or why you cannulated, do you? A. I recall it much better now than I did on 12 December 2009. 92.3 The Applicant later qualified his response by noting that he had " some recollection of it, but I had no in depth recollection " and it was " not like it was yesterday " Prince: So you're not saying that you actually have a recollection of doing any of these things, what you're saying is that your normal processes of dealing with an incident such as Mr B is what follows? A. Yes. Q. And what you're setting out there is your usual regular practice, is that right? A. Yes. 92.4 The Applicant had insinuated to the Investigator that while his memory was hazy, he did not have to have an actual recollection of the specific incident as the treatment of Mr B followed normal procedure and that procedure was the same in all cases: "Why would I want to particularly remember this because I do hundreds of jobs like this. If I'm presented with a case sheet it's not going to cause me - to give me a case sheet and what details do I remember, sorry, I'm not going to be able to. This appears to be very straightforward, I've had hundreds just like it and the treatment is the same. I just don't understand how this has really happened." 93The Respondent argued that it was unsafe for the Applicant to resort to " normal procedure " as a foundation for his reconstruction of the events of 8 November 2009 when he repeatedly gave evidence during the hearing that " normal routine " could not be seen as reliable in circumstances where every case is treated differently. 94The Respondent pointed out that the Applicant was adamant that the sole reason for cannulation was for the administration of Morphine. He first expressed that view at his initial interview: Prince: Because when you made your statement to Ms Leech [sic] , the only explanation that you could give for why you cannulated this patient was in case you needed to administer morphine? A. Yes. 95The Respondent pointed out that despite the above explanation, at various times during the initial interview and during the hearing, the Applicant had speculated on the reasons why a patient would be cannulated and offered contradictory evidence about the reasons for cannulating a patient. 95.1 The Applicant was questioned at the interview with the Investigator on 18 December 2009 about whether he would normally cannulate a patient before administering Fentanyl or wait and see. He had responded, " Well, if I am going to go to the bother of cannulating a patient, provided it's not contraindicated, I would just administer morphine ." When that statement was put to him in cross-examination, he explained that a cannula is inserted as a precautionary measure when administering S8 drugs: Prince: Well, if it's such an effective regime, why cannulate? A. I had cannulated a lot of my patients, particularly if I was going to give them S8s. Cannulation prior to the administration of a drug that can cause respiratory depression is a really good idea in case they need to have that respiratory depression reversed. 95.2 The Respondent pointed out that the Applicant confirmed that if the "potent" drug being administered was morphine, then cannulation in most cases would have already occurred and there was no need for precautionary cannulation: I usually cannulate a patient if I have administered a potent drug to...them. ... It is a routine operation to cannulate as a safeguard in ..order to facilitate an immediate response to a patient who may have a severe allergic reaction to the drug that has been administered ... I do it in most cases where I administer drugs. 96It was not disputed that one of the adverse complications in patients administered with pain relief is vomiting and nausea. Given that the Applicant had given evidence that he had cannulated a lot of his patients, he was asked during cross-examination about the frequency of precautionary cannulation to the administration of an S8 drug. The Respondent gave the following answers at various times: 96.1 " I've done it quite frequently, quite often. Not every case, but in any case that I think - that I suspected there may be complications, then yes ;" 96.2 " Depending on the patient "; 96.3 " Occasionally I would cannulate if I suspected there may be an adverse reaction "; 96.4 Prince: So what you're saying is that when you're administering Fentanyl, you regularly also insert a cannula in order to deal with any adverse reaction? A. Occasionally, if I deem it necessary." 97In relation to Mr B, the Applicant had responded: "What I thought at the time was that yes, this is most probably going to work. The man has a back injury. The last thing I want to do is - the last thing I want for him to try and do is to sit up and to vomit. So the cannula was inserted in case I need to treat that vomiting or if the Fentanyl was not effective enough for his pain management." 98The Respondent pointed out that the Applicant later added another reason for cannulating Mr B stating that it was to avoid adverse complications or to administer morphine: Prince: So what you were really doing was cannulating him in case you needed to give him morphine? A. Correct. Or an antiemetic if he had a reaction to the Fentanyl. In the unlikely event he had a it does say in the pharmacology that nausea and vomiting may be a side effect of Fentanyl, although I have never witnessed that. I was considering giving him morphine if that was no good, so I wanted to be ready 99In relation to when he thought Mr B was cannulated, the Applicant referred to his "normal" routine stating, " Given I don't remember doing it, my normal routine would be to cannulate after administration of Fentanyl, particularly if I was concerned or if it looked like it's not going to work or something like that after, I don't know. " 100The Respondent drew the Commission's attention to the affidavit evidence of Malcolm Vozey, Manager of Business Development in the Finance and Data Services Area, in which he had documented all the occasions in which the Applicant had attended incidents between 1 January and 8 November 2009 and used Fentanyl in one table and Morphine in the other. The evidence indicated that out of 119 cases in which he administered Fentanyl without any other intravenous drug, the Applicant cannulated only 5 times, some of those being instances in which Morphine was later administered. 101The Respondent pointed out that the Applicant's evidence about cannulation changed yet again after he was taken through that evidence. He stated under cross-examination: If it was Fentanyl alone, that I was considering and I was not considering anything more potent, then no, I would not cannulate. 102The Respondent pointed out that, despite the Applicant being taken to all of the instances in which he cannulated or attempted to cannulate when only Fentanyl was used, not once, until he was prompted , did the Applicant give the reason that it was a precautionary cannulation or cannulation because he was contemplating the use of Morphine. That was so even in circumstances of severe trauma, and in cases where Fentanyl was administered over an extended period of time. 103The Respondent pointed out that the Applicant had introduced in his affidavit evidence the argument that Mr B had informed him that morphine made him sick . It was submitted that the Applicant had invented that argument over the past 14 months and it must have been advanced as an explanation for the problem that had arisen during his interview that, because he inserted a cannula, he would have just administered morphine. It was pointed out that the Applicant did not raise Mr B's insensitivity to morphine either in the interview with the Investigator, or in his written submissions or in meetings he had with the CEO. It was submitted that the explanation for the cannula would only be convincing if it was considered in conjunction with the other recent invention by the Applicant that he would cannulate as a purely precautionary measure when giving Fentanyl . It was submitted by the Respondent that the new evidence about the conversation with Mr B was not only implausible but it was inconsistent with the explanation he had given to the Investigator in December 2009. 104The Respondent noted that the Applicant had given evidence that he would be very " careful " to record allergies that a patient may have as he identified the patient history, the drugs administered to that patient and the details of the patient as the most important issues to be recorded in clinical notes/patient history notes: Prince: So if you knew of an allergy, for example, and the patient had told you of some allergy in the process of you caring for him, you would have to report that? A. Yes. Q. And you would have to be very careful about it? A. That is correct. 105During cross-examination, the Applicant identified where allergies are recorded on the PHCR. Nevertheless, the Applicant did not include the alleged advice from Mr B that morphine made him sick on the relevant patient record. In explaining the reason for the omission, the Applicant distinguished between a sensitivity and an allergy: Prince: So where in those notes do you record that the patient explained that morphine had made him sick in the past? A: I didn't, because he's not allergic to it. He said it's made him ill in the past, which is not an allergy, it's a sensitivity. Everybody who receives morphine - well, not everybody - 90% of the people who receive morphine feel nauseous for a short period of time.... Q. You don't record in your affidavit that you failed to record what he said about morphine sensitivity because you only record allergies? A. Well, that's what the form says, allergies. Allergies are far more significant than the occasional nausea caused by an opiate, which causes nausea in most people. Q. So-- A. It's not an allergy. Q. ... you wouldn't record morphine sensitivity in that column? A. No, because the presumption in health care professionals is that if somebody is going to be given morphine, they're going to become nauseous. Q. Are you sure about that? A. Absolutely positive. 106The Respondent went on to point out that the Applicant confirmed that he would never record a morphine sensitivity in the allergy box: Prince: I see. So that's why you wouldn't record and you never did record a morphine sensitivity in the allergy column, is that right? A. That is correct, because it's not an allergy. 107The Applicant was taken to the PHCR in relation to a patient identified as Mrs. K. The Applicant confirmed that he was the treating officer, that he was responsible for completion of that report, that it was his writing on that report and that he had recorded " Morphine sensitive " on that report 108The Respondent pointed out that the Applicant then contradicted his earlier evidence about the recording of morphine sensitivity in light of that revelation about Mrs K: Prince: I see. So when would you or wouldn't you record a sensitivity as opposed to an allergy on a PHCR? A. If I thought it was particularly relevant, I would. As such is the example you showed me before where it directly affected the treatment of the patient, I did record it, a sensitivity there. But normally I would only record it if it was a true allergy. 109The Respondent submitted that the Applicant, having been caught out, decided to expand on the theory about the "morphine allergy" as demonstrated in the extract of the cross-examination set out below: Prince: [Mr]B, sorry. What did he say? A. To be honest, I don't recollect exactly what he said. Q. What did he say roughly? A. I offered him fentanyl or morphine, explained what both those were and he said, I've had morphine no, I can't remember exactly what he said, but he indicated to me that morphine had made him sick in the past. So I gave him fentanyl, inquired further after the fentanyl on the effects of morphine on him, decided it was a sensitivity, a transient sensitivity, which is what the sensitivities are, the nausea and the itchiness. It's transient, it goes away in a couple of minutes. 110The Respondent also noted the concession by the Applicant, after having been referred to yet another PHCR in which he had previously recorded an opiate sensitivity without having any additional information about the patient: Q. And indeed not only do you record an opiate sensitivity, but you put a question mark next to it, is that right? A. Yes. 111The Respondent submitted that the excerpts of cross-examination set out above demonstrate a propensity by the Applicant to tailor his evidence to advance his claim in circumstances where that evidence, when subjected to scrutiny, was shown to be inconsistent with reliable documentary evidence. 112The Respondent drew the following conclusions from the Applicant's evidence: 112.1 If a careful and attentive approach is taken to the evidence,then the Commission will be satisfied that: firstly , the Applicant's evidence should not be accepted and, secondly , the Applicant's evidence was not a reliable basis upon which Officer Horgan's evidence of the events of 8 November 2009 should be rejected. 112.2 The Applicant did not advance a clear and independent recollection of the incident and his reasons for not having such recollection of the events were not convincing; 112.3 When compared to Officer Horgan's clear and consistent recollection of the events, the Applicant's reconstruction of the events did not provide a safe evidentiary basis to reject Officer Horgan's recollection of events; 112.4 The Applicant's version of events, commencing with the initial investigation interview, had been contradictory in serious respects, unconvincing and self-serving; and 112.5 The Applicant's evidence was inherently unreliable given his propensity to tailor his evidence to suit his claim before the Commission. 113The Respondent also noted that: * the Applicant did not record the cannula on Mr B's PHCR; * at the interview of 18 December 2009, the Applicant had been evasive about the critical fact that Mr B had a cannula inserted in his hand; * the Applicant only admitted to the presence of the cannula in the investigation interview when it was clear that its presence could be proved; * the Applicant's demeanour was evasive, guarded, argumentative, and inconsistent with his evidence when presented with problems in his version of events; * the Applicant had no direct, actual, and independent recollection of the events of 8 November 2009 when interviewed on 18 December 2009; * the Applicant's explanation for his lack of recollection was entirely unconvincing and was based on misrepresentations of the sequence in which he received notice of the allegations prior to the interview particularly when his reasons changed from " having no idea of allegations or the nature of the incident " to failing to appreciate the seriousness of the allegations; * even on his own evidence, the Applicant's version of the events of 8 November 2009 was a reconstruction based on his ' pondering ' of the issues over a long period of time; * the Applicant accepted that his reconstruction of events following his ' pondering ' of them may have become suited to the case that he wished to put to the Commission; * the Applicant's reconstruction of the events was unreliable. Each time he was presented with a previous statement which was inconsistent with his stated reason for inserting the cannula, he switched to a different explanation For example, the shift from the possibility of needing to use morphine to another explanation of " precautionary cannulation " based on a need to deal with the possibility of adverse reaction to Fentanyl; * the Applicant's explanation about " precautionary cannulation " had not been provided prior to these proceedings notwithstanding the significant period of time given to him to ponder the events prior to the decision to dismiss him. * neither of the reconstructed explanations given by the Applicant for the presence of the cannula was convincing. They smacked of desperation to find some innocent explanation for the physical evidence which was consistent with Officer Horgan's version of events. * On proper analysis, the explanation that the cannula was present to allow an additional dosage of morphine to be given was unconvincing and inconsistent with the Applicant's own rhetorical question to the interviewer; * the explanation that the cannula was present to allow a further dosage with morphine was inconsistent with other clear evidence that it was a routine back case and there was nothing special about it which would indicate that morphine would be necessary - in stark distinction to the cases identified and explained by the Applicant. * the second and new explanation for the insertion of the cannula advanced by the Applicant (that it may have been necessary as a precautionary measure in case of an adverse reaction to the Fentanyl) was also unconvincing when regard was had to the circumstances of the case revealed by the PHCR. Statutory Scheme 114Part 3 of the Ambulance Services Regulation 2005 ("the Regulation") makes provision for the "management of conduct and performance". The Respondent issued "Procedural Guidelines for Dealing with misconduct as a Disciplinary Matter and the Taking of Disciplinary Action" ("the Procedural Guidelines" ) pursuant to that Regulation. 115The Chief Executive determined that the allegations against the Applicant would be dealt with as a disciplinary matter pursuant to the Procedural Guidelines as opposed to a fact-finding investigation. 116Procedural Guideline 8.3.4 set out the processes required to be adopted by an investigator in providing a report to the Chief Executive. It relevantly stated that the investigation report shall, amongst other things: * "in relation to each allegation, set out the investigator's view on the relevant facts as to whether, on the balance of probabilities, the person has engaged in the alleged conduct, referring to the material upon which that view is based; and * if appropriate, indicate a view whether the matter should not continue to be treated as a disciplinary matter, including any comment on systemic or operational matters that need to be addressed." 117It was pointed out by the Applicant that instead of undertaking the responsibility required in the process outlined in Procedural Guideline 8.3.4, that is, set out her analysis of the factual material, the Investigator, had provided her opinion as to the reasons why she did not accept the Applicant's version of events. 118The Applicant drew the Commission's attention to the various statements of disbelief made by the Investigator to discredit the Applicant: * "Paramedic Redmond's seeming nonchalance and lack of recall are at odds with his vehemence about his dislike for working at Parramatta..." * "...On only one occasion does he state ' I have never given Fentanyl intravenously ' but immediately deflects with ' Why would I ?' * "...his mantra of not being able to recall only disturbed when he was asked questions on pharmacology, protocol and procedures...." * "...He then offers the occurrence of a previous instance of drug (Lasix) maladministration ' under exceptional circumstances ' which he claims he admitted to and for which he was rebuked. It is not known whether he offers this as evidence that he would not re-offend, or that he would admit to re-offending if he did, or whether he feels the circumstances surrounding the previous instance justified his actions." * "...To deny recollection of the event but then deny that the alleged conduct occurred is contradictory. Paramedic Redmond's responses to the allegations appeared coached and evasive." 119It was pointed out by the Applicant , that there was no proper analysis as to how Ms Leitch arrived at those opinions and she could not be cross-examined about the above opinions as she was not called to give evidence. Yet her opinions were taken into account by the Chief Executive in making his decision and must have infected his decision making process. 120The Applicant contrasted the above with the process applied to the evidence of Ms Horgan. For example, Ms Leitch: 120.1 did not analyse the obvious conflict between the versions provided by District Manager Gourley and Ms Horgan; 120.2 failed to analyse the obvious contradiction between the versions provided by Mr & Mrs B and Ms Horgan; and 120.3 allowed Ms Horgan to alter her record of interview to reflect a significant shift in recollection. 121The Applicant pointed out the obvious deficiencies in the opinion provided by Ms Leitch to the Chief Executive as to whether or not the allegations against the Applicant were sustained: 121.1 Ms Leitch failed to analyse the obvious contradiction between the versions provided by Mr & Mrs B and Ms Horgan; 121.2 Ms Leitch failed to take a statement from Mrs B although Mr B had made her aware of what Mrs B had observed; 121.3 Ms Leitch failed to observe that the admission checklist to Norwest Hospital noted that the "IV cannula in situ" was marked as "yes"; and 121.4 Ms Leitch failed to appreciate, after the interview with Mrs B, that there was material (in relation to a second syringe) capable of corroborating the record of interview of the Applicant as opposed to Ms Horgan. 122The Applicant concluded that those deficiencies in the opinion provided by Ms Leitch infected the consideration of the Chief Executive so that, on the balance of probabilities, the process undertaken by him was tainted. 123For its part, th e Respondent submitted that it would have been impossible for Ms Leitch to complete the investigation without determining whether or not the allegations against the Applicant were substantiated or without providing an opinion about his conduct. 124The Respondent pointed out that, contrary to the submissions of the Applicant, Ms Leitch was required to provide an opinion as to why she did not accept Mr Redmond's version of events. The reasoning set out by Ms Leitch was consistent with assessing the credit of the two key witnesses in relation to the allegations and provided the basis for why Officer Horgan's version of events was preferred to that of the Applicant. 125The Respondent further submitted that the Applicant cannot draw a distinction between the formulation of an opinion or a view. The Respondent referred to the various definitions of " view " to be found in the Concise Oxford English Dictionary " A particular way of regarding something, an attitude or opinion " and " Regard in a particular light or with a particular attitude " and the Webster Dictionary, " An opinion or judgement coloured by the feeling or bias of its holder ". Ms Leitch's reasoning in the investigation report set out considerations which were, in her view, relevant to whether, on the balance of probabilities, the Applicant had engaged in the alleged conduct, referring to his transcript of interview. 126The investigation report was tendered in the proceedings as both a stand alone folder of the investigation report regarding the Applicant, and as an attachment to the Affidavit of the Chief Executive. The investigation report set out all of the reasoning that was relevant to the investigator in drawing her conclusions, along with all information considered for the purpose of the investigation report. Ms Leitch was not a witness for the Respondent. The Respondent argued that she did not need to be, given that it was her investigation report that was before the Chief Executive, who was the decision maker in relation to action taken against the Applicant. 127The Respondent pointed out that it was completely within the purview of the Applicant to summons Ms Leitch to give evidence in the proceedings if it was considered necessary to do so. The Applicant chose not to do so. 128The Applicant contended that Ms Leitch did not analyse the factual material before her in the course of her investigations. The Respondent argued that the investigations involved the consideration of transcripts of interview with the relevant parties. Ms Leitch set out her considerations for each allegation in the investigation report, along with a section on discussion and findings. It was necessary for the investigator to prefer one version of events over the other in relation to each allegation, which was what she did. 129The Applicant suggested that Ms Leitch incorrectly allowed Officer Horgan to change her evidence by amending her record of interview, suggesting that it was not merely an amendment, but a significant shift in recollection. The Respondent denied that the amendments made to the record of interview were a shift in recollection and argued that the versions were consistent and were simply clarified. There was a small omission which was acknowledged by Ms Horgan in her oral evidence and, in any event, the record of transcript stood as precisely that, an amended transcript where one could see what was originally said. It was clear from the Procedural Guidelines that the investigator must give each interviewee an opportunity to raise issues about the content of the record of interview and for it to be altered to reflect agreed changes. It was pointed out that the Applicant had also been afforded the opportunity to read and raise issues about his record of interview prior to signing it as a true and correct record . 130The Respondent pointed out that there was no obvious contradiction in the versions provided by Mr and Mrs B and Ms Horgan at the time the initial report was prepared. 131In relation to what the Applicant identified as alleged errors in the investigation report and the opinions of Ms Leitch, the Respondent submitted that they were of no substance for the following reasons: 131.1 Mrs B was interviewed and her evidence considered by the investigator as a result of further enquiries made by the Chief Executive prior to any decision being made; 131.2 While it is agreed that Ms Leitch failed to observe on the admissions checklist that the "IV cannula was in situ" was ticked as "Yes", it was pointed out that that deficiency in the report was identified and correctly considered by the Chief Executive in the course of his decision making; 131.3 The concept of a "second" syringe was not raised by the Applicant at any time over the course of the investigation. It was also not raised in the Applicant's submissions to, or interview with, the Chief Executive. It was the evidence of Ms Horgan that Mr Redmond removed the MAD. In that context, the existence of a syringe left at Mr & Mrs B's residence cannot be considered inconsistent with her version of events. The Respondent argued that it must not be assumed that the syringe left at the patient's residence was different to the syringe used in conjunction with the MAD. The Respondent pointed out that it was not an issue that can be considered by the Commission at all, given that it was a concept raised by Counsel for the Applicant for the first time during the course of the hearing. 131.4 The Chief Executive gave evidence about further enquiries made by him to address matters raised by the Applicant . He was not challenged on that evidence. 132The Respondent concluded that once Officer Horgan's evidence was accepted, then it must follow that the Applicant administered Fentanyl intravenously to Mr B in clear contravention of the Respondent's protocols on the use of that drug. The consequences of the rejection of the Applicant's denials was the acceptance that the Applicant had been lying to both his employer and to the Commission since the incident occurred. 133The Respondent submitted that acceptance of Officer Horgan's evidence would discharge the employer's onus. Nevertheless, even applying the care required by the Briginshaw standard, her evidence should still be accepted as the best basis for the Commission to arrive at findings on the balance of probabilities that the Applicant administered the Fentanyl intravenously, particularly so given the unsatisfactory state of the Applicant's evidence. Duties required of the CEO in reaching his decision 134The Applicant drew the Commission's attention to a number of authorities relating to the duties of the holder of an office given discretionary powers to dismiss: 134.1 In the Commissioner of Police v Alyson Reid-Frost (2010) NSWIR Comm 2 the Court referred to a statement by His Honour, Kitto J, in R v Anderson; ex parte IP EC-Air Pty Ltd 1965 113 CLR 117 at 189, that the duties of the holder of an office with discretionary powers ought exercise such powers properly and not.... ill-advisedly or capriciously...There was also a duty to expound reasons for the exercise of a discretion; 134.2 In Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 Gummow J emphasised the importance of the holder of an office to undertake a proper, genuine and realistic consideration of the matters required to be considered. 135The Respondent submitted that the case law relied on by the Applicant involved the dismissal of police officers and did not assist his case as the duties of a holder of office in those circumstances were regulated by a statutory regime that was completely different to the one governing the Ambulance Service of New South Wales. 136The Respondent reminded the Commission that the CEO was a witness in these proceedings and his affidavit evidence was unchallenged by the Applicant. In the absence of any cross-examination regarding the process, the Applicant was unable to make submissions about the process adopted by the CEO, his use of discretion, or about whether the CEO considered matters which were required to be considered. Failure to comply with his duties in exercising a discretion 137The Applicant submitted that the CEO had acted in a manner that was inconsistent with his discretion in that he had paid 'mere lip service' (per Kitto J in R v Anderson ) to the requirements of the guidelines published pursuant to the Regulation. The following reasons were provided for that contention: 137.1 The CEO had elected to follow "briefing notes" provided to him from time to time rather than giving proper consideration to matters; 137.2 It was obvious that the CEO provided no proper reasoning for his ultimate decision. His affidavit evidence did not provide any greater elucidation as to his reasoning process than his letters to the Applicant. In his letter to the Applicant dated 14 May, 2010 the CEO stated: 'having considered the information as set out in points 1 to 5 above I have decided to take disciplinary action and to confirm my decision that your employment with the Ambulance Service of NSW is terminated...' The highest that the CEO was prepared to elevate his duty was to say 'On balance the statements of events by paramedic Horgan held a greater weight and that the allegations were made out'. That statement was simply a proposition offered by the CEO. There was a total absence of any reasoning of the CEO and none of the material referred to by the Applicant was properly considered by the him when arriving at his determination. The Applicant submitted that the inevitable inference must be that the decision of the CEO was uninformed as it was not based upon consideration of all the evidence. It was pointed out that when an analysis was carried out of the material that was before the CEO at the time that he made his decision, it was apparent that there was evidence capable of dissuading him from his finding of misconduct. 138The Respondent denied that the CEO had not acted in accordance with the requirements of the Procedural Guidelines. It was submitted that the breaches suggested by the Applicant were incorrect as follows: 138.1 The CEO was entitled to inform himself through specialised "briefing notes" from staff within the Professional Standards and Conduct Unit of the Ambulance Service of New South Wales. Irrespective of any such advice, it was clear from his affidavit evidence that he carefully considered all material before him at each stage of the decision making process. He also arranged for further enquiries regarding clinical seriousness and the significance of administering Fentanyl by the intravenous route; 138.2 Clause 8.4 of the Procedural Guidelines provided that: "In forming an opinion as to whether the employee has engaged in misconduct, the Chief Executive may only take into account those matters disclosed in the investigation report. The Chief Executive may seek specialist advice (including professional and legal advice) prior to forming an opinion, but any final opinion must be the responsibility of the Chief Executive." 139It was clear from the Affidavit of the CEO that he accepted the investigation findings, subject to further enquiries. The CEO stated in his affidavit evidence that in making his final determination, he gave careful consideration to the submissions made on behalf of Officer Redmond, and independently had regard to the collection of evidence and enquiries made in relation to the investigation. He formulated a conclusion based on his consideration of all of the material, including the statement of events by Officer Horgan, balanced against the statement of events provided by the Applicant, and concluded that the allegations were made out and that dismissal was an appropriate penalty given the seriousness of the allegations and risk to patient safety. All considerations were communicated to the Applicant at the stage required. 140There was no requirement for the CEO to communicate his reasoning process to the Applicant at the time of the final decision as the opportunity rested with the Applicant to make submissions about the reduction of penalty and mitigation only. 141The CEO correctly identified that findings in relation to the allegations themselves turned on credit only and correctly held that, on balance, the statement of events by Officer Horgan should be preferred and that the allegations were made out. 142To say, therefore, that there was a total absence of any reasoning was incorrect. The CEO took the steps set out in his affidavit to inform himself of the relevant issues and make further relevant enquiries. The CEO's letter to the Applicant set out his considerations in reaching his determination. The CEO was, once again, not challenged on his evidence or given an opportunity to respond to the submissions being made. The submission was not open to the applicant to make. 143At the time of the CEO's decision, there was no compelling evidence before him that would be capable of dissuading him from a finding of misconduct on the balance of probabilities, having due regard to the principals enunciated in Briginshaw . 144The Respondent concluded that all of the material referred to by the Applicant was properly considered by the CEO when making his determination, as set out in the uncontested evidence in his Affidavit plus a consideration of the outcome of further enquiries Guidelines for Penalty 145The Guidelines relevantly provide the following in relation to penalties: "It is essential that the Chief Executive's consideration of the severest penalty must not involve any pre-judgment as to what penalty, if any, is ultimately to be applied to the employee. Consideration of the actual penalty, if any, to be applied, is not to occur until the steps outlined below have been carried out" . (Applicant's underlining) The Chief Executive shall consider the following: * The facts of the case; * The impact on the conduct of the objectives in Part 3 of the Regulation; * The degree of relevance of the conduct matter to the employee's position and duties; * Skill, experience, position of the employee; * The nature and seriousness of the matter including the effect and circumstances of the incident; * Mitigating or extenuating circumstances if available at this stage; * The employment history and general conduct history of the employee; * Whether the conduct or substantially similar conduct have previously been the subject of counselling or previous remedial or disciplinary action; * Whether policy and guidelines applicable to the conduct were in place, were known or being followed or required to be followed; and * The effect of the proposed action on the employee It was submitted on behalf of the Respondent that the Applicant's submissions confused pre-judgment with the required decision about what maximum penalty may ultimately be applied to the employee. The CEO considered all matters set out in the Procedural Guidelines as set out under the relevant heading in the Procedural Guidelines: Employee Engaged in Misconduct - Disciplinary Action Being Considered. Evidence of Pre-Judgment of Penalty 146The CEO had been provided with documents from time to time titled "Briefing Note" 147The Briefing Note dated 12 February 2010 prepared by Ms Dawson provided "an analysis" and then stated that "The investigator found the six (6) allegations sustained". The analysis then went on to repeat an analysis unfavourable to Mr Redmond, reiterating the findings of the investigator and then stating that, "Given the evidence provided I support the findings made by the investigator and am of the opinion that the allegations are made out ...". 148The Applicant submitted that it was a serious flaw in the procedures undertaken by the CEO for the following reasons: Firstly , it was not the investigator's role to find the allegations sustained. Secondly , Ms Dawson, the author of the report, was not the investigator and, notwithstanding her position vis a vis the investigation process, provided an opinion that the allegations had been made out. 149It was also submitted by the Applicant that Ms Dawson's involvement had serious implications in considering whether the process was flawed and/or tainted. It was submitted that the opinion she had communicated through the briefing note must have improperly influenced the CEO. 150Recommendation 1 in relation to the Applicant provided as follows: "1. That the Chief Executive considers the investigation report, determines if findings are accepted, makes another determination or seeks further enquiries be made." It was submitted by the Applicant that, as that recommendation was made prior to the Applicant being asked to provide a response, it again laid the groundwork for the CEO being led into error by inappropriate untimely recommendations and findings. It was submitted that "it set in place a train of thought capable of being accepted by the CEO that the allegations have been sustained". 151Recommendation 3 provided as follows: "3. That if the findings are accepted Chief Executive considers part B attached to determine penalty." Part B contained a description of the event in 2008 when the Applicant identified himself as having breached a Practice Code. The Applicant submitted that the recommendation was flawed for the following reasons: Firstly , at that stage in the procedure the CEO was required to inform the Applicant of the worst penalty he was likely to incur. He was not required to determine the penalty. Secondly , the recommendation was an invitation to pre-determine a penalty; and Thirdly , no material was provided to the CEO, as required by the guidelines, to assist him in giving consideration to the penalty to be inflicted 152The Respondent submitted as follows in response: 152.1 The submission of the Applicant that it was not the investigator's role to find the allegations sustained was both incorrect and contrary to the content required in the investigation report as set out in the Procedural Guidelines. 152.2 The submission was also contrary to the quote contained in the Applicant's own submissions which required the investigator to include in an investigation report: "In relation to each allegation, set out the investigator's view on the relevant facts as to whether, on the balance of probabilities the person has engaged in the alleged conduct, referring to material upon which that view is based." There was a requirement to make a finding about whether the person had engaged in the alleged conduct. Obviously, if the investigator was of the view that the allegation was made out, then the allegation was sustained. 152.3 The CEO was perfectly entitled to seek specialist advice, which may include the opinion and interpretation of other people. The briefing note itself identified that the CEO considered matters that the Applicant was suggesting were not considered. They included the identification of deficiencies in the investigation report and consideration of the inconsistency between the file note of Stuart Gourlay and the evidence of Officer Horgan at interview. The preceding paragraphs and assessment of Mr B's evidence in the briefing note set out reasoning that supported the version of events provided by Officer Horgan. There could have been no improper influence of the CEO when he gave uncontested evidence that he independently considered all material before him, in circumstances where he was permitted to seek advice regarding the report. 152.4 The submissions of the Applicant did not properly apply the Procedural Guidelines. The recommendation criticised by the Applicant was consistent with the Procedural Guidelines which provided that following the receipt of the investigation report, the CEO had the option to make further enquiries and was required to form an opinion about whether the employee had engaged in misconduct, taking into account only the matters disclosed in the investigation report. If he was of the view the person had engaged in misconduct, then consideration should be given to appropriate disciplinary action or alternative actions, a recommendation also set out in the briefing note. It was then that the employee was advised in writing of the opinion of the CEO as to what disciplinary action, if any, was being considered. Only then was the employee advised that he had the opportunity to make submissions and also may request an interview with the CEO. 152.5 The submissions of the Applicant misstate the situation. The decision about penalty referred to in the Applicant's submissions was a decision about appropriate disciplinary action or alternative actions. The briefing note cannot be read in a vacuum and must be considered in the context of the stage at which the process was at. It was clear from the uncontested evidence of the CEO that what followed was a consideration of the investigation report and the formulation of a preliminary view to accept the investigation findings, make a finding of misconduct and that the most severe penalty that could result from the disciplinary process was dismissal. 152.6 The letter sent to the Applicant on or about 22 February 2010 then provided him with the opportunity to make submissions and provide any information he wanted taken into account, advising that the severest penalty being considered was dismissal. It was abundantly clear that what followed that letter were further enquiries, a further investigation report and then another opportunity for the Applicant to make further submissions and have a second meeting with the CEO. It should not be accepted that the recommendation 3 in the briefing note suggested the actual penalty be determined, and in any event that was not what occurred. 152.7 The briefing note was not a prompt to the CEO to determine dismissal as the appropriate action. There was no suggestion at all about the type of disciplinary action to be taken. The briefing note merely set out the different categories of remedial action and disciplinary action available under the Ambulance Services Regulation. The Briefing Note dated 30 April 2010 prepared by Ms Dawson 153After collection of further material, the following recommendations were provided to the CEO: (a)If the severest penalty remains a dismissal, then, if approved the Chief Executive signs the attached correspondence; (b)If the severest penalty is altered, then, the Chief Executive determines the appropriate penalty, if any. 154The Applicant submitted that those recommendations were - firstly , another prompt to the CEO to determine for dismissal; and secondly , to do so in circumstances where the CEO did not, or had not, considered the matters referred to in the Guidelines. 155It was submitted on behalf of the Respondent that the briefing note must be read in its entirety, that it cannot be considered in a vacuum and must be read in conjunction with the evidence about what had occurred. Of itself, the briefing note confirmed the Respondent's contentions about the earlier briefing note and action by the CEO being merely a determination of the type of action to be taken and the maximum penalty being considered. The final Briefing Note dated 12 May 2010 156That briefing note provided five matters for consideration by the CEO prior to determining that the Applicant's employment be terminated. 157The Applicant submitted that the five matters were deficient considering the requirements of the Guidelines. 158The Applicant also submitted that the CEO confirmed in his affidavit that he had determined that the appropriate penalty was dismissal prior to a proper consideration of all matters required under the Guidelines: That information confirmed my own view that the conduct described raised significant clinical risks and involved deliberate acts substantially beyond the bounds of acceptable paramedic practice and dismissal was the appropriate penalty. 159The Respondent responded as follows: 159.1 The Applicant's suggestion that the briefing note prompted the CEO to make a determination for dismissal, can be disregarded. Irrespective of the wording contained in the briefing note, what occurred after 30 April 2010 was that the CEO made a decision that the severest action being considered was dismissal, providing the Applicant with an opportunity to make further submissions and to meet with him. It was noted that internally, the briefing note itself referred to "proposed severest disciplinary penalty being dismissal". 159.2 The briefing note corresponded in time and process with paragraph 8.5 of the Procedural Guidelines. There was no deficiency identified by the Applicant in that regard and, in any event, the evidence from the CEO, unchallenged by the Applicant, was contained in his affidavit. Failure to properly determine penalty, if misconduct established 160The Guidelines set down mandatory considerations which the CEO was required to take into account in determining an appropriate penalty: 161The Applicant submitted that there was no evidence that the CEO gave consideration to any of the matters listed in the Guidelines as mandatory considerations: 161.1 Whilst it was not in dispute that the CEO considered the objectives set down in Part 3 of the Regulation, he did not consider the impact of the conduct on those objectives. He did not provide any reasons as to how the conduct of the Applicant impacted to disturb the objectives. 161.2 There was no evidence to suggest that the CEO considered the Applicant's length of service, his skills, experience, position, the awards and commendations he had received or his standing in his service to the community and to the Ambulance Service as a whole. There was no evidence that the CEO considered other material available to him which reflected on the Applicant's outstanding competence. That material was contained in the interviews of Officers Bird and Blackburn. Mr Blackburn said of Mr Redmond "A. Yes I have worked with other officers and you know I have had some good trained officers and bad trained officers, but really I found Peter to be a very professional officer. In my experience, from what I have observed he always well I believe administered those drugs properly so I had good experience with Peter. I enjoyed my six weeks with Peter, I thought he was a very professional officer, very courteous to patients and yeah I had...". 161.3 There was no evidence that the CEO considered the nature and seriousness of the matter, including the effect and circumstances of the incident. If such analysis was undertaken, it would have revealed that there was nil effect and nil adverse circumstance. It was submitted that Mr B was treated appropriately, suffered no ill effects and was provided with excellent care. In any event, even if the Fentanyl had been injected intravenously, it would have had a minimal effect given a proper calculation of the dilution of the Fentanyl. 161.4 The CEO had both a statutory obligation (by virtue of the Guidelines) and an obligation as a "reasonable employer" to consider the employment history and general conduct history of the Applicant. The Applicant submitted that the CEO failed to make such consideration. Instead, he had considered one matter only, being: "An incident which involved the administration by Mr Redmond of intravenous Frusemide in 2008, an action outside your scope of practice... " The Applicant conceded that it was a matter that appeared upon the Applicant's record. However, the inference can be drawn that the CEO thought it a matter of adverse record to be taken into account without taking into account the underlying circumstances of the incident, namely, that the Applicant reported himself and that the infraction was in fact " in the best interests of the patient " as determined in the Memorandum of Superintendent Morrison dated 10 March 2008. 161.5 The CEO did not consider the following mandatory requirements thereby demonstrating a substantial prejudice to the Applicant and justifying a determination by the Commission that the dismissal was harsh, unreasonable and unjust - 161.5.1 whether there had been previous counselling, remedial or disciplinary action for the conduct or similar conduct; 161.5.2 that there had not been similar conduct; 161.5.3 that there were guidelines available to guide him on the necessary action to be taken by him; 161.5.4 whether there had been similar incidents to consider parity of penalty; and 161.5.5 the effect of the proposed action on the Applicant. The Applicant submitted that the failure of the CEO to comply with the procedures set out in the guidelines was a circumstance described in Antonakopoulos v State of NSW (1999) 91 IR 385, at 389) 162The Regulations and Guidelines provided the following logical sequence for determining penalty: 162.1 A determination to be made by the CEO of the severest penalty that could be imposed. In the case of the Applicant, that was determined to be dismissal; 162.2 Consideration to be given to those matters required at page 21; 162.3 Consideration to be given as to whether remedial action ought to be considered in lieu of dismissal in accordance with Regulation 18 (4); 162.4 A determination of the appropriate remedy having regard to mitigation, hardship or the like found by consideration of the mandatory matters. 163A similarity was drawn with the process of sentencing an offender in R v Valera [2002] NSWCCA 50 where it was held that a two stage approach is proper consideration of whether the maximum penalty should be imposed: Firstly , consideration is given to whether the objective gravity of the offence brings it within the worst class of case and, secondly , consideration is given to whether the subjective circumstances of the offender require a lesser sentence. 164The Applicant submitted that even if the conduct was found proven, the Commission should consider that the dismissal was harsh, unreasonable and unjust in any event. 165A classic exposition of the application of the principles when considering the consequences of dismissal is to be found in the decision of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees Union, NSW Branch [1973] AR 231 at 233) : 'But even if there are grounds for terminating the contract of employment, it is still open to the Tribunal to examine the severity or otherwise of the step of dismissal'. 166The Applicant listed the mitigating factors relating to his set of circumstances: (Electricity Commission NSW t/as Pacific Power v Nieass (1995) 81 IR 46) 166.1 His 22 years of unimpugned service; 166.2 The financial hardship upon him; 166.3 The character references tendered in his favour and the records of Interview of Officers Bird and Blackburn; 166.4 The relegation of his employment to that of a wardsman; 166.5 The likelihood that he can be rehabilitated due to the services offered by the Respondent themselves in the form of remedial action; 166.6 The lack of likelihood that he would re-offend; 166.7 He has proved by his subsequent behaviour of obtaining employment that he is a responsible citizen; 166.8 No interest would be gained for the Respondent in 'jettisoning' an experienced officer such as he with an exemplary record by a single act that was completely out of character. 166.9 The availability of other remedies that would ensure his exemplary continued service. 167It was submitted by the Respondent that the contention that the CEO did not give consideration to matters listed in the Procedural Guidelines as mandatory considerations when making the decision to dismiss the Applicant was in error. It was contended that the Applicant had confused the consideration at part 8.3.4 with the final decision. The reference to page 21 of the Procedural Guidelines had no relevance to the CEO's final decision. That stage of the process referred only to a consideration of the severest penalty that may be applied to the employee. There was nothing in the Procedural Guidelines that suggested that each of the items contained therein were mandatory considerations and in any event, it was clear that the impact of the conduct on the objectives in Part 3 of the Regulation had been considered. Indeed it was considered in the Applicant's submissions where in paragraph 14 the affidavit of Greg Rochford was quoted: "That information confirmed my own view that the conduct described raised significant clinical risks and involved deliberate acts substantially beyond the bounds of acceptable paramedic practice." 167.1 There can be no greater consideration than making decisions in order to protect the health and safety of the public, by ensuring that employees of the Ambulance Service are fit to perform their duties and maintain appropriate standards of conduct and work related performance in the Ambulance Service. 167.2 The skill , experience, and position of the Applicant were set out in both the investigation reports and the submissions of the Applicant with attachments and were also considered at the relevant point. The CEO stated in his affidavit that he had also considered the interview transcripts of Officers Blackburn and Bird. 167.3 The nature and seriousness of the matter, including the effect and circumstances of the incident, were also considered, including further enquiries that were made with Graham McCarthy about the risks of administering Fentanyl intravenously. 168The Respondent disagreed with the Applicant's order of actions set out in the Procedural Guidelines. It was contended that the correct order was: 168.1 consideration of the investigation report and the opportunity for the CEO to make further enquiries; 168.2 the making of an initial decision by the CEO about whether the employee has engaged in misconduct, based only on the investigation report. At this point the CEO makes a decision about whether there will be a finding of misconduct; 168.3 as a finding of misconduct and disciplinary action is being considered, the next step by the CEO is consideration as to what is the "the severest penalty" in the range of penalties that might conceivably apply to such misconduct. It is this decision which the CEO is compelled to have regard to in the objects of Part 3 of the Regulation and consider all of the matters set out at page 21 of the Procedural Guidelines so heavily relied on by the Applicant. All of these matters occurred prior to the Applicant being given the opportunity to make submissions.; 168.4 before disciplinary action is taken, the employee is advised of the finding of misconduct and that disciplinary action being considered, and invited to make submissions and/or meet with the CEO in relation to the disciplinary action being considered, having been provided with a copy of the full investigation report and provided with a letter setting out all of the matters required; 168. 5 the CEO must consider these submissions and may make further enquiries because of submissions made by the employee or their representatives. That was what occurred; 168 .6 implementation of a final decision. The requirements at this stage are set out at clause 8.5 of the Procedural Guidelines and do not involve a consideration of all of the issues contended by the Applicant to be matters that should be considered. It was submitted that the Applicant misstated the steps required in the making of a disciplinary decision pointing out that the process cannot be compared to a criminal prosecution as suggested by the Applicant. 169The Respondent concluded that the Commission would not conclude that the dismissal has been harsh, unreasonable or unjust and therefore the application should be dismissed. Remedy 170The Applicant submitted as follows: 170.1 He was seeking reinstatement. He had given evidence that he was ready, willing and able to continue his employment. 170.2 In accordance with the provisions of s.89 of the Act, the primary remedy for an unfair dismissal is reinstatement which, coupled with ancillary orders, would provide a proper reinstatement. 170.3 He was also seeking compensation for remuneration lost before the reinstatement order. 171Given that the primary remedy is reinstatement, the Commission is required to determine whether to do so would be impracticable ( Carlton & United Beverages Ltd & Phillip Brunt [2006] NSW IR Com 98 at [57)] 172Clause 15 of the Ambulance Service's Regulation provided effective steps for the Ambulance Service to deal with remedial action in any of the following way: 172.1 counselling; 172.2 training and development; 172.3 monitoring the employee's conduct or performance; 172.4 implementing a performance improvement plan; 172.5 transferring the employee to another position in the Ambulance Service that does not involve a reduction of the employee's classification or position; 172.6 any other action of a similar nature. Those guidelines clearly envisaged that an officer can be reinstated and used in the best interests of the Service and for its purposes and objectives. 173It was pointed out that the evidence of Messrs Bird and Blackburn supported the proposition that he was a professional and competent officer and should be reinstated. 174It was concluded that there was no evidence to suggest that reinstatement was impracticable and no reason had been advanced by the Respondent for the proposition that his reinstatement would not be appropriate. 175For its part, the Respondent submitted that the Applicant's submissions on remedy would only arise if the Commission finds that, on the balance of probabilities, to the Briginshaw standard, the Applicant administered Fentanyl intravenously to Mr. B on 8 November 2009 and, for some reason, the Commission finds the dismissal was otherwise harsh, unjust or unreasonable. 176The Respondent also submitted that such a finding, taken together with his repeated and false denials to his employer and to the Commission, would result in a finding that it could not be reasonably practicable to re-instate the applicant. The evidence of the Respondent concerning reasonable practicability was contained in the affidavits of Graham McCarthy and Greg Rochford Neither witness was required for cross-examination and the evidence in those paragraphs was not challenged. The Applicant, when asked in cross- examination, could advance no reason why he should be reinstated even if he was found to have administered the Fentanyl intravenously and lied about doing so. That was because no such reason could be properly advanced. 177The length of service of the Applicant, while relevant, did not restore the obvious break down in trust and confidence accompanying dishonesty by an employee who had access to prohibited drugs and improperly administered them. It was not an acceptable response to say that he had not been disciplined for that previously or that Mr. B did not appear to suffer any identifiable harm. 178It was an unacceptable risk for the Applicant to be reinstated to be an Ambulance Driver in circumstances where he had not shown any contrition for his actions and, to the contrary, had sought to conceal and obfuscate those actions at every turn. 179The Respondent concluded that no remedy should be granted to the Applicant in the circumstances even if it was found that the dismissal was harsh, unjust or unreasonable (in circumstances where Officer Horgan's version of the events of 8 November 2009 was accepted). CONSIDERATION 180I have taken into account the arguments put on behalf of the parties, the affidavit evidence of the witnesses, the examination of the witnesses and the submissions in the proceedings all of which are relevantly outlined in detail above. 181Officer Horgan partnered the Applicant for the first time on 8 November 2009. There was no evidence before the Commission of any motive for lying about an incident such as is described in these proceedings. Her version of events was noted over the period 9 - 12 November in a personal notebook. There was no specialist evidence to the effect that the notes she had made were concocted for the proceedings or otherwise. 182Officer Horgan had completed an IMMS report on the Respondent's computer system on 12 November 2009. That report was consistent with her version of the event which was relayed to senior officers on 13 November 2009. 183It is noted that the record made by Officer Gourlay was not tendered by Officer Horgan and was therefore not in evidence. As was correctly pointed out by the Respondent the Applicant did not take the opportunity to call Officer Gourlay to give evidence in circumstances where, if successfully contested, that evidence would have impugned the evidence of a major eye witness to the allegations against the Applicant. 184Apart from witnessing the alleged intravenous application of Fentanyl "with her own eyes", Officer Horgan also went on to relay the conversations she had with the Applicant over the treatment of Mr B. 185Officer Horgan gave evidence that: 185.1 She had put an atomiser on after she drew the Fentanyl; 185.2 The Applicant had, in taking off the atomiser, said to her: " I'll show you a little trick ". 185.3 He had diluted the Fentanyl and given Mr B an "unknown amount" intravenously. 185.4 He had given Mr B an unknown amount intranasally and said to her, " I'll explain later ". 185.5 Later, while they were sitting in the ambulance, she said he had explained to her what he had done. Her notes stated: "he had measured out the doses before to know what he was giving, he also said that the way we give it is crap. It's supposed to be given IV, he stated that he had spoken to a doctor about it who he claims also thinks we should give it IV. He also stated "I trust you not to say anything" and "you just have to be careful who you do it in front of". He also stated that by giving it IN as well if the Pateient was ever asked they would say yes I had it IN." 185.6 Officer Horgan said that she had said to him "that's just to cover your arse" and he had responded, "well yeah." 186Even if one were to believe that Officer Horgan may have been mistaken as to what she saw, it cannot be argued, in the absence of motive, that she was mistaken about that conversation that took place with the Applicant while they were in the ambulance after dropping off Mr B at the Hospital. 187The Emergency Record Sheet noted that * Mr B had received intranasal Fentalyn. * A cannula was in situ when Mr B was admitted 188The Patient Record did not indicate that Mr B was sensitive to Morphine although the evidence indicated that the Applicant had recorded such information on other patient's records. All of the evidence, described above, supports Officer Horgan's version that Fentanyl was administered intravenously by the Applicant. 189The Respondent circulated a document titled "Variation to Clinical Practice" on 12 December 2008. All Ambulance Service of NSW staff were advised that that it concerned a clinical intervention that was not consistent with the Respondent's protocols, pharmacology, skills or procedures and what procedure to follow if a Variation to Clinical Practice occurred. The document set out the Standard Operating Policy but was not an invitation to Paramedics to act outside their authorised clinical level. It was a process to report, without fear of retribution, the rare occasions that incidents arise where, for one of several reasons, practice varies from recommended protocol. The Applicant did not utilise the procedure if he genuinely felt that Mr B required other than the normal treatment for pain. 190Ms Leitch, on 8 January 2010, forwarded copies of their respective transcripts of interview to Ms Horgan and to the Applicant, by registered mail, and asked them to read it, make any necessary changes on the transcript itself and initial each change. They were also required to sign at the foot of each page and at the end of the transcript as acknowledgement of having read them. Ms Horgan was given a deadline of 7 days of receipt in which to return the transcript.. Unlike Ms Horgan, the Applicant was also provided with a copy of the audio recording of his interview. I do not accept that preferential treatment was given to Officer Horgan in relation to her interview record. 191I have considered the procedure followed by the Chief Executive in investigating the matter and reaching the conclusions that were reached. I accept the submissions by the Respondent as to the requirements set down by the Guidelines and do not accept that there was any procedural unfairness in the treatment of the Applicant I accept the Respondent's submission that the process adopted by the Chief Executive was not flawed, and was well founded. The Chief Executive made an affidavit in the proceedings in which he explained the reasons for his decision. The attempts by the Applicant to impugn the genuineness of that consideration, including allegations of prejudice by the Chief Executive, were not open to the Applicant given that he did not put any such allegation to the Chief Executive in cross-examination and, indeed, did not even require the Chief Executive for cross examination: Brown v Dunn (1893) 6 R 67 (HL); most recently analysed by the High Court in MWJ v R (2005) 80 ALJR 329 . 192I accept that the Respondent has satisfied the onus of proving that the Applicant had seriously misconducted himself in the treatment of Patient B. 193The letters of commendation tendered on behalf of the Applicant in the proceedings describe an ambulance officer who has displayed "outstanding professionalism" in the performance of his duties. The commendations described him as dedicated, composed, extremely competent and methodical. 194In circumstances other than the present case, the commendations may have been influential and the remedial matters raised by the Applicant may have been more appropriate. However, in the absence of any recognition by the Applicant of the gravity of his actions and his consistent denial of serious misconduct, remedial action would be fruitless. 195There was no contrition shown by the Applicant. His actions may have had a different effect had Officer Horgan, who was young, very new to the job and in awe of the Applicant's experience, decided to accept that his treatment of Mr B was that of a much more experienced officer and was therefore correct in that it had not demonstrated any adverse effects 196The evidence against the Applicant was overwhelming. His evidence was evasive, ever-changing and adapted to the evidence that was put before him. Those actions belied any indication that the Applicant was either willing to, or was capable of reform. I accept the Respondent's submissions that it would be contrary to public policy to re-instate the Applicant as an Ambulance Officer 197In the circumstances I find that his termination was not harsh, unreasonable or unjust. DECISION 198The dismissal of the Applicant was not harsh, unreasonable or unjust. 199Matter No. IRC 428 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: 14 October 2011