Industrial Relations Commission New South Wales Medium Neutral Citation: Palmer v Nepean Blue Mountains Local Health District. [2011] NSWIRComm 1058 Hearing dates: 08/11/11, 09/11/11, 10/11/11 Decision date: 22 December 2011 Before: Ritchie C Decision: Catchwords: Application re unfair dismissal- Nurse terminated -3 allegations of misconduct-investigation took place-allegations proven employee terminated. During an Involuntary Treatment Trial applicant carried out tests not in accordance with the approved matrix- in seeking to destroy some subjective tests he in error destroyed some patient clinical data- when he left his work office he did not store correctly patient records. Commission found that applicant had carried out extra tests not in accordance with matrix. Also found that his destroying in error patient records and not securing patient records was attributed to applicant's poor mental health at the time. Order reinstatement, continuity plus half back pay. Legislation Cited: Industrial relations Act, 1996 Cases Cited: Rose and Telstra Corporation Ltd (Q9292); Bankstown City Council v Paris (1999) 93IR 209: Burge v BHP Steel Pty Limited (2001) 105IR 325: Perkins v Grace Worldwide (Aust) Pty Ltd. (1997) 72 IR 186: Hollingsworth v Commissioner of Police (No 2) (88IR): CCH Australia Ltd v Bowen (1998) 79 IR: Oswald v New South Wales Police Service (1999) 90 IR 42: Sydney Ferries Corporation v Seamen's Union of Australia (2009) NSW IRComm126: Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48IR296. Category: Principal judgment Parties: Applicant :NSW Nurses Association :Respondent Director General, NSW Dept. of Health in respect of Nepean Blue Mountains Local Health District. File Number(s): IRC 1342 of 2011 DECISION Background. 1The New South Wales Nurses' Association ( on behalf of Richard Palmer) filed a claim on 9 August, 2011 pursuant to section 84 of the Industrial relations Act, 1996 (the Act) for unfair dismissal against the Director General, NSW Department of Health in respect of Nepean Blue Mountains Local Health District (the respondent). 2A conciliation conference took place on 18 August, 2011 but was unsuccessful in settling the matter and standard directions were provided to the parties. A hearing of the matter took place over three days with the Decision being reserved. Applicant's case. 3In a filed summary of the case it was stated that Mr Palmer commenced employment with the respondent in August, 2005 as a registered nurse and in June 2008 commenced employment as a clinical nurse consultant at Nepean Hospital. The respondent summarily terminated Mr Palmer on 19 July 2011 for alleged misconduct pertaining to : the conduct of extraneous psychological tests on patients of the Involuntary Treatment Trail(ITT) with no authority or ethics approval; the destruction of patient clinical information without authority or ethics approval; and the improper storage of patient clinical information. The three allegations were the subject of a confidential report compiled by the respondent which made the following findings; Re allegation 1 ." In accordance with Mr Palmer's admission at interview that he conducted extraneous 'K10' psychological tests on patient JG, the investigators confirm that this allegation is substantiated." Re allegation 2; "in accordance with Mr Palmer's admission at interview that he shredded patient clinical information, the investigators confirm that this allegation is substantiated ." Re allegation 3 ; In accordance with Mr Palmer's admission at interview that he improperly stored patient information, the investigators confirm that this allegation is substantiated." In brief Mr Palmer admitted administering two short 'K10' tests to a particular patient which helped the patient realise the progress she was making since commencing in the trial. These questionnaires did not require specific authority or ethics approval. He was not told that authority or approval was required. Mr Palmer admitted accidentally shredding a number of important documents. He did not do this deliberately. Mr Palmer underwent a mental breakdown in the time leading up to and during this incident and this contributed to or caused the mistake. Mr Palmer denied improperly storing patient clinical information and was never provided with specific details regarding this allegation. Some documents were left on his desk when he vacated the premises on 10 February 2011 because on that day he had a mental breakdown. The investigation into the three allegations was tainted and did not take into proper account of mitigating circumstances. The report made erroneous conclusions. It was the Association's submission that the termination was harsh, unreasonable and unjust in the circumstances and sought for Mr Palmer to be reinstated to the position he worked prior to his dismissal, this being in his former position in the Gateway Clinic at Nepean Hospital. This was later varied so that Mr palmer would accept any appointment within the public health system but would prefer to work in drug and alcohol. 4Mr Palmer filed a statement and was subjected to cross examination. He stated that he became a trained nurse in England in 1991. He said that his clinical experience was in caring for patients with drug and alcohol problems. He began working in this area in around 1995 and has remained there ever since. He immigrated to Australia in 2004 and was registered in early 2005. Prior to his dismissal he had never been the subject of any warnings or disciplinary processes. In 2007 he stated that he was granted the personal grading of Clinical Nurse Specialist. 5In 2008 he was interviewed for the position of Clinical Nurse Consultant grade 2 within the Involuntary Treatment Trial ( ITT). He was later offered the position not withstanding that he had thought he had interviewed poorly. He was advised by one of the interviewees (Gael Rao) that he did have some areas that he would need support in and this would be provided. 6In June 2008 he stated that he was appointed to the position within ITT on a two year temporary contract. In this position he reported to Ms Cathy Addison- Wilson who reported to Ms Rao. 7He stated that he felt nervous in obtaining this promotion with the added responsibility but with the promised support he felt he would be able to fulfil it. He advised that he never got the promised support. 8The ITT was a new treatment, one that took patients with severe drug or alcohol addiction and were involuntary treated for their addiction and associated physical and mental health issues. The ITT was being evaluated by KPMG. Data collected by the hospital could be used to formulate treatment plans for each patient and also used by KPMG to evaluate the trial. 9Funding for the trial was for four beds, one full time equivalent (FTE) clinical nurse consultant, 1 FTE Occupational therapist, 0.5 FTE psychologist,0.5 FTE social worker, 0.5 FTE (medical) staff specialist and 1.0 FTE administrative officer. 10On 19 July 2011 he received a letter from the respondent terminating his services for the three previously expressed allegations. 11Between June 2008 and February 2009 when the trial began Mr Palmer said that he was involved in a number of meetings with representatives from NSW Health, the Drug and Alcohol Unit at Nepean Hospital and KPMG. It was his evidence that around late 2008 it would be the clinicians who decided which tests would be conducted and when. Therefore medical, nursing staff and psychologists would collaborate about the tests. A table of outcome measures was devised before the trial commenced. 12The K10 test takes about 2-3 minutes to complete by the patient, requiring the answering of ten questions and is a self reporting measure of psychological stress. It is for all kinds of mental health patients. He stated he had been using K10 questionnaires since 2003. 13It was agreed that a K10 questionnaire would be conducted at admission, after ten days of treatment and then at or after discharge. The information derived was for collating outcome measures. He stated that he was never told that he could not carry out the test on patients at other times, and in his view it did not mean that K10 questionnaires could not be used when appropriate for patient assessment and care planning at other times. 14It was also his view that ethics approval was not required for 10k questionnaires and he stated that he was never told or directed to obtain authority or ethics approval in order to carry out this or other tests. In his view carrying out a 10k questionnaire to assess a patient's level of psychological distress was not outside of normal nursing care. It was his view that the question of when tests would be carried out was for the clinicians to decide. 15In around April 2009 Mr Palmer stated that he had a conversation with a patient named Jasmine, who had severe alcohol and other medical issues. Jasmine was very upset and believed that she was worse than she was, when she commenced the trial. Mr Palmer believed she had improved and would continue to do so if she stayed in the trial so he decided to conduct a K10 questionnaire as a means of showing her the degree of improvement. He then scored the test and showed the results to Jasmine comparing her results with the results of the K10 test when she commenced the trial. Jasmine was very happy with the results. Thereafter the results of this K10 questionnaire was used to adjust the patient's care plan. 16Approximately one month later the same scenario occurred and again Mr Palmer administered the K10 questionnaire to Jasmine with the results pointing out her improvements and she agreed to stay on the trial. He stated that he carried out the tests with the patients best interests in mind. In his view the utilisation of K10 tests were part of Jasmine's ongoing care and did not require any special authority or ethics approval and were being commonly used in the Mental Health unit at Nepean Hospital. 17In around May or June 2009 , the outcome measures and therefore the tests that were being used were changed by senior management. He did not participate. Within a week a new table of outcome measures was produced and distribute to staff. He was not aware whether ethics approval was sought for these changes. 18During one of the weekly ITT meetings he informed the meeting of the K10 tests he had completed on Jasmine. No one stated that he had done wrong. They were the only extraneous psychological tests he carried out on patients. He did not believe that they were extraneous. It was his view that the questionnaires he conducted with Jasmine were consistent with the approach to be taken to treatment plans as referred to on page 7 of the Draft Model of Care for the Pilot Involuntary Drug and Alcohol Treatment Program. 19It was Mr Palmer's evidence that the ITT programme never had a full compliment of staff. As a consequence he believed that his workload was excessive and around July 2009 he regularly worked 50-60 hours per week. In his view he had little clinical support with he being the only full time employee working in his first clinical support role. He believed he needed more support than he was given contrary to the support promised by Ms Rao. 20He stated that in early 2009 he overheard a conversation amongst senior staff where his line manager Ms Addison- Wilson described him as useless, not knowing what he is doing and should never be given the job. After that he felt he could no longer trust any of those people. 21He stated that he was directed to attend a Clinical Leadership Course that required 3 to 4 days work a month for about a year. This he said put greater pressure on him. He did not complete the course but pulled out in January 2010 due to his mental health. 22He stated that around July to August, 2009 he began to feel very unwell. He was not receiving the support that he wanted and that the extra hours he was working were not being recognised. He later discovered that he was suffering from situational anxiety and depression. He was told by fellow workers of their concerns for him and his health. 23 Just before Christmas 2009 he sought to speak to Ms Addison - Wilson about his feeling overwhelmed but she responded in a very abrupt tone stating that everybody's like that. 24At a meeting in January 2010 he lost his temper at a fellow worker, which he put down to stress. He later apologised to the worker. He stated that he lost his temper 3 times in around 4 to 6 weeks, where he had not previously done so in 4 years. 25 In early 2010 he felt he was becoming paranoid. Also he suffered from lack of sleep, nightmares and poor eating habits. 26Early in the ITT he began to conduct his own personal assessment of patients. This was done alone reflecting on his own impression of the condition of each patient and complete an outcome measure such as a K10 form. He said he did this because he had the impression that patients were answering outcome measure questions in an attempt to please him, rather than to be an honest reflection of their current physical or psychological health. He kept these records for future research. He stated in conversations with KPMG and separately with Ms Rio of his thoughts about future research opportunities. 27In February 2010 he decided to shred the documents he had created as part of these assessments as he had formed the view that they were of no clinical significance. On his desk at the time were two piles of paper. One pile was the documents he intended to shred. The other contained patient outcome measures that had to be re-entered into the data base as a result of data base problems. 28On 9 February 2010 he was not feeling well due in his view to his mental health issues. He stated that he was very stressed and was trying to leave work at 5.00pm as he had promised to his wife. He believed while talking on the phone he knocked a large number of papers onto the floor. When he picked them up he managed to muddle them up . He thought he had put them back into order. He then commenced to shred the papers that he intended to but in error included into the shredding were patient outcome measures and also a document containing a table that he had created detailing patient names and the dates when outcome measures were completed. The documents did look identical. The shredding process took 5 to 10 minutes and totalled about 100 pages. The shredding of the patient outcome measures and the table was an accident. He stated that this was the first time he had ever made such a mistake. 29The next day at work he noticed documents missing and realised what he had done. He said that he was horrified and became agitated and upset. He said that he panicked and did not report to anyone what he had done. Whilst he recognised that what he had done was a big mistake he believed that the stored data on the database meant that it was not lost. He believed the accident had occurred as a consequence of him being unwell and he therefore withdrew himself from clinical duties and sought treatment. He left work and sought to see his Dr Catherine Bailey that day, but had to see her the following day. When he saw Dr Bailey he was placed on anti-anxiety medication. She provided him with a medical certificate that stated he was not fit for work and did not go back to work for 4 weeks. 30Whilst on sick leave he received a phone call from Ms Addison- Wilson and she asked whether he was on workers compensation and that she was having difficulties finding certain data. 31On 8 March 2010 he returned to work and advised Ms Addison-Wilson of the shredding accident. He told her of the extra tests he had been carrying out in the possibility of a research project and those were the documents he meant to shred. She advised him to get a medical clearance and then come back to work. 32On 10 March 2011 he returned to work with a medical certificate clearing him to return to work from 11/3/10 to 12/3/10 -4hours a day only. He met again with Ms Addison- Wilson and explained what occurred with the shredding and the extra assessments. He was sent home at the end of the meeting. 33The following day he attended a meeting with Ms Addison-Wilson and Ms Rao where he again explained the shredding and the extra assessments. He was told during the meeting that he was being moved to Gateway Clinic while it was being sorted out. 34Mr Palmer stated that the first time he was made aware of the improper storage of patient clinical information was when he received a letter in September 2010. On 29 September 2010 he stated that he was interviewed by Ms Rio and Mr Jeff Lord, Human Resources Consultant. He was asked about various documents found on his desk. 35On 23 May 2011 Mr Palmer received a copy of a confidential report. It was his view that he had never been explained by the respondent, their view that he had stored documentation improperly. He never received a copy of the documents that the respondent considered improperly stored. He was never told not to keep files on his desk during working hours. He stated that he only ever held notes of a patient who may join the ITT. If leaving his desk for an extended period he would place any notes in their file and put it in a draw. At the end of each day he stated he would place all files back in the main filing cabinet in the Intake Office. His office was located in part of the building that had no public access. The persons who had access to his office were persons working in the Centre of Addiction Medicine . Such persons held the same confidential obligations as Mr Palmer. 36Mr Palmer stated that he was advised that sometime after he left his office on 10 February 2010, Ms Addison- Wilson and Mr Costello had reason to search his office looking for a particular document. They found documents on his desk. Mr Palmer stated that he was never told what date this search took place or what documents may have been left by other staff. He stated that when he left work on 10 February 2010 he was very unwell and having a breakdown. He stated that he did not place patient notes back in the main filing cabinet which was his usual practise. Manilla folders with outcome measures were found on his desk which contained documents relating to assessments that he had privately carried out and therefore had no clinical value. 37Mr Palmer stated that his work at the Gateway Clinic centred on the dispensing of methadone and other drugs to patients. It involved working in pairs. One administering and the other supervising. 38Through this application he seeks to be reinstated to his position at the Gateway Clinic or re employed elsewhere within the public health system but would prefer to work in drug and alcohol. 39Correspondence directed to Mr Palmer from Sydney West Area Health Service dated 11 June 2010 signed by Ms Addison- Wilson stated that his two year contract as Clinical Consultant for the ITT expired on 2 June 2010 and as of 3 June 2010 he had been returned to his substantive permanent position as Clinical Nurse Specialist. 40Ms Mary Beresford filed a Statement in Reply and was required for cross examination. She stated that she was a part time Social Worker commencing in 1999 at Springwood Hospital. Around February 2009 she commenced work for the ITT until the position of social worker in the ITT was filled. She stated that she spent between 14 to 20 hours per week for the ITT out of a total of 35 hours for the respondent. She said that she shared an office with Mr Palmer. She stated that she noticed in late 2009 and early 2010 that Mr Palmer did not appear well and she asked him how he felt. In early 2010 Ms Addison- Wilson came into the office and was searching Mr Palmer's desk for something. 41She said that during the period Mr Palmer was on sick leave things on his desk had changed with papers scattered on his desk. This was not normal as generally Mr Palmer was tidy and organised. At the end of each day documents were not left unorganised on his desk. As their office did not have a filing cabinet it was necessary for some documents to be kept on their desk or in their draws. She stated that she never saw progress notes, patient files or clinical notes left on Mr Palmer's desk unless he was at his desk working on them. The only way to enter their office was through doors requiring an authorised security pass. 42A medical report from Dr Catherine Bailey was filed. The doctor was not required for cross examination. Her report dated 1 September 2011 stated in summary that she first saw Mr Palmer on 11 February 2010 with regards to anxiety symptoms, complaining of not eating well, poor sleeping, having nightmares, problems with motivation and concentration. He began having panic attacks, felt estranged from his colleagues at work. socially isolated, lacking confidence in ability to handle his job and had minimal support from middle management at work. The report stated that his depression and anxiety may well have lead to an incident at work where he inadvertently shredded some documents. She did not believe he was fit for suitable duties work at the time. 43Doctor Bailey referred him to see Doctor Jeff Bertucen a consultant psychiatrist. 44As at the date that Dr Bailey of the report ( September 2011) she determined that Mr Palmer was fit for work as a registered nurse. 45Two medical reports by Dr Jeff Bertucen were filed and he was subject to cross examination. Attached to one report were three WorkCover medical certificates from Dr Bailey that stated that Mr Palmer was unfit for work from 11/2/10 to 23 /5/10. The diagnosis was anxiety and depression with panic attacks. The first report of Doctor Bertucen had an assessment date of 7 June 2010. The report stated that he had the opportunity to review the clinical notes provided by Mr Palmer's treating psychologist, Nicolina Rhotundo. 46Doctor Bertucen diagnosis was that Mr Palmer had suffered a psychological injury as a result of conditions within his workplace. This had led to a chronic adjustment disorder with depressed mood and anxiety. At that point it was his opinion that Mr Palmer was not psychological capable of returning to his pre-injury occupation. 47The second medical report dated 7 September 2011 stated that Mr Palmer first consulted him on 18 March 2010. He stated : In summary, Mr Palmer claimed that he was progressively victimised and harassed by his supervisors at Nepean Hospital. Mr Palmer was not only subject to what he claimed was over criticism and harassment but over work (up to 12 hours per day as he was not provided with assistants as promised). Mr Palmer's psychological symptoms ( principally agitation, sleep disturbance/insomnia, impaired concentration and attention), developed from September-October 2009 approximately. Mr Palmer claimed that the unfortunate incident ( the accidental shredding of some documents) was a genuine mishap which occurred as a result of absent-mindedness. In my opinion Mr Palmer's account of this incident is genuine and entirely congruent with his symptoms of confusion, impaired mental focus and impaired memory, consistent with the claimed condition. The report went on to state that in Doctor Bertucen's opinion Mr Palmer is currently psychologically capable of working full time in his pre- injury role as a Registered Nurse. Respondent's Case. 48Ms Cathleen Addison-Wilson filed a statement and was required for cross examination. She stated that she has been employed by Sydney West Area Health Service since 1999 and her current position is Acting Nurse Manager for the Drug and Alcohol Service based at Nepean Hospital. She has held this position since July 2008. 49She stated that in early 2010 she sought to find a patient's file which was missing. She sought and was given approval by Ms Rao to look in Mr Palmer's draws for the missing patient's notes. She said that she carried out two searches. One in the presence of Mary Beresford and later with Mr Michael Costello. She found the notes at the bottom of one of Mr Palmer's draws. She also found documents including clinical notes and referrals concerning other patients. 50It was her opinion that Mr Palmer's storage of these notes was in breach of the NSW Health Policy on Records Principles for Creation , Management, Storage and Disposal of Health Care Records which requires health care records to be : "...stored in a secure place which can only be accessed by authorised personnel." She stated that she also found a pile of psychological tests in a manila folder and more psychological tests in a ring binder folder on his desk. Many of the tests were undated and several tests conducted on the same patients. This was unusual as the ITT only allowed tests to be conducted on patients twice during a single admission. 51She said that she received a phone call on 17 February 2010 from Mr Palmer who advised that he was going to take another week off work. She said that she raised the issue of finding patient tests on his desk. As some of the tests were undated she asked how they could be entered into the data base which is what he had said that he had done. She advised him to get a medical clearance prior to returning to work. 52On 9 March 2010 Mr Palmer returned to work. He said to Ms Addison-Wilson that he was on anti depressants and he was seeing a psychologist and will be seeing a psychiatrist. He then advised her that he had being carrying out extra testing on the ITT patients, because of an idea he had for future research. He said he had spoken to his wife about this research who had advised him he couldn't do the research without ethics approval. He said he was advised by his wife to destroy the extra tests that he had done. He told Ms Addison-Wilson that in the process of destroying the tests he had shredded some of the legitimate ones. He said when he realised what he had done he panicked , went home and collapsed. He also said that later he looked at the data base and realised that the scores didn't match correctly with the hard copy test that he had and that he couldn't fix it. 53The following day he returned to work with a medical certificate stating that he was fit for suitable duties, 4 hours a day for a week increasing to 6 hours a day for one week then subject to review. She had a discussion with Mr Palmer as he explained why he used the K10 tests and how frequently he used them. 54Ms Addison- Wilson denied the conversation where she is alleged to in speaking with other colleagues critised Mr Palmer. She also denied being told by Mr Palmer before Christmas 2009 that he was overwhelmed. Mr Palmer did raise concerns he had with Ms Addison- Wilson and they were dealt with, such as family issues. 55Ms Addison-Wilson also denied that the ITT was understaffed. She stated what staff had been recruited to assist with the ITT. In her view the ratio of nurses to patients was unusually high. 56 She also stated that she did not believe that Mr Palmer was working the high amount of hours that he stated. In her view Mr Palmer generally ceased work prior to her at 5.00pm. He did do overtime separately from his role in the ITT at the Needle and Syringe Exchange at Nepean Hospital. 57Meetings with the ITT took place on a weekly basis, a weekly ward meeting and a weekly Drug & Alcohol Clinical Review when patients were discussed. 58Ms Gael Rao filed a statement and was required for cross examination. She stated that she has been employed by the former Sydney West Area Health Service for over 11 years. Currently she is employed as the Acting Director, Drug and Alcohol for approximately 3 years. She is currently responsible for approximately 150 full time equivalent staff. In her statement Ms Rao gave an overview of the ITT. She stated that the accurate recording of data was crucial as the trial would inevitably set a precedent regarding involuntary treatment programs could be rolled out across the state. A lot of planning, money and effort had been invested in the trial. In her view this trial was subject to greater security and reporting requirements than other clinical trials. 59Ms Rao was part of the selection panel that interviewed and appointed Mr Palmer as he met the essential criteria. She saw Mr Palmer's progression to a Clinical Nurse Consultant Grade 2 as a natural progression given his lengthy experience. She had no recollection of a discussion that Mr Palmer said took place where he stated how badly he had interviewed. 60In her view Mr Palmer had a significant lead-in time from his appointment in June 2008 to the commencement in February 2009. During the two year trial there were approximately 50 patients with approximately 33 patients admitted to the trial during the nine months Mr Palmer was involved in the study. She did not consider Mr Palmer's workload to have been overly demanding. Because it was a new program everyone was up skilling and Mr Palmer was given support staff to assist him. The Clinical Leadership Course was not mandatory for Mr Palmer to attend but was intended to provide him with additional skills and support. Part of the course was for Mr Palmer to nominate two superiors to review his performance. One of those was Ms Rao who completed an online questionnaire. 61In around October 2009 she stated that she became aware that audits and assessments of data being conducted by KPMG and senior clinicians were showing clear deficiencies in the data that had been recorded. A review took place around options to improve data collection, data entry and conducting patient -medical audit commenced. The issue of large amounts of data being missed was noted in an ITT Operational Meeting dated 26 November 2009. 62By February 2010, she stated it became clear that there were significant anomalies regarding patient self- report outcome measures and that a patient file was missing. 63In around March 2009 she was advised by Ms Addison- Wilson that Mr Palmer had told her about the shredding of documents and unauthorised testing of patients. 64Because of the gaps in the data she was concerned about the usefulness of the trial. Accordingly on 18 March 2010 she sent a letter to the Chair of the Human Research Ethics Committee of the SWAHS Nepean office advising him that a clinician had undertaken extra testing on patients in the ITT and had shredded legitimate tests of ITT patients. 65She said that she transferred Mr Palmer to the Gateway Clinic as it would accommodate his return to work plan and he could be closely supervised. He was told of this transfer to an interim position on 11 March 2010 and commenced work there the following day but then went on leave 15 March 2010 and was absent from work for several months. 66Ms Rao stated that she completed a risk assessment to determine whether Mr Palmer posed an ongoing risk in relation to his return to work. An external human resources consultant Mr Jeff Lord was engaged to work with Ms Rao as a co-investigator in relation to Mr palmer's conduct in the ITT. 67On 16 September 2010 Ms Rao directed a letter to Mr Palmer inviting him to attend a meeting where he would be given the opportunity to respond to the allegations. This meeting took place on 29 September 2010. Following the meeting Mr Palmer responded in writing to the allegations. 68On 29 March 2011 Ms Rao wrote to Mr Palmer with the Investigation Report attached. 69Whilst not involved herself, Ms Rao had seen correspondence dated 19 April 2011 sent to the Secretary of the NSW Nurses Association inviting comment on the findings and recommendations of the Investigation Report. The final decision that Mr Palmer would be terminated was made by Ms Kay Hyman the Chief Executive. 70On 19 July 2011 Ms Rao with a Ms Fiona Bryant attended Nepean Hospital and advised Mr Palmer that his employment was terminated and handed him a letter from Ms Hyman. 71Mr Michael Costello filed a statement and was subject to cross examination. He stated that he is the Manager of the Psychology and Counselling Services for the Drug and Alcohol Service of SWAHS and the Nepean Blue Mountains Local Health District having held that position since approximately March 2011. He held this position in an acting capacity from April 2009. He has worked for NSW health for eight years. 72In his statement Mr Costello gave a detailed description of what constitutes a clinical trial and the processes that it must comply with, emphasising that each clinical trial needs to pass through an ethics process. An ethics committee considers the proposal and may recommend changes or tests to be altered. If a trial does not proceed according to the approved process, NSW Health loses control over the conduct of the trial. This he said presents risks to the patient who may be subject to non-approved testing or treatment and, accordingly, may be at risk of having their rights infringed or health put in jeopardy and the trial itself because if non -approved tests are conducted, the integrity of the data collected during a clinical trial could be compromised. In the case of ITTs compliance with ethical processes are critical because patients are not volunteers therefore the ethics processes are particularly designed to protect the well being of such patients and failure to comply with the ethical processes may well result in a breach of the Government legislation which regulates an ITT. 73Mr Costello then outlined the tests that were conducted on patients during the ITT. The K10 test was meant to be conducted post-detox, pre-discharge and six month follow up. He stated that where a K10 test is conducted in circumstances which are not permitted, or on a more regular basis than required by a clinical trial the main risk that can arise is that the patient can suffer from "test fatigue". Responses may be affected as patients remember the questions. Another risk is that patients get bored of being asked questions which may affect their answers. Similar problems can occur he stated with respect to "Addictive Severity Tests" or "ASI" where additional testing is carried out contrary to those authorised by an ethics committee. The same could occur with the Short Form (36) Health Survey if testing is carried out in addition to those approved by the Ethics Committee. 74Mr Costello stated that in around August/ September 2009 he was approached by Ms Addison-Wilson and Dr Mark Walker with problems with the data of the ITT and asked to look at it. He found large tranches of data missing. Of the 20 to 30 patients that had been involved in the ITT, he found complete data for only a handful. Large gaps in the data had the potential to render the entire clinical trial useless. In performing random audits on patient files he was unable to locate many of the test results in the hard copy files. As a consequence he spoke with Ms Addison-Wilson, Dr Walker and Gareth Dawes( who was another psychologist working on the ITT) and it was decided to undertake a complete audit of all files. They decided to wipe the entire database and start recording test results again. This started around February 2010 but the task was too big for the four of them. 75In around March 2010 KPMG was brought in to assist with the extraction of data and rectification of the database. Notwithstanding their efforts gaps still existed and lost test results were never able to be obtained again. He said he was advised later that those lost test were the ones destroyed by Mr Palmer. The work carried out by KPMG cost $9535. 76In about February 2010, prior to the engagement of KPMG Ms Addison-Wilson and Mr Costello went looking for a file of a patient. When they searched Mr Palmer's desk he was shocked at the piles and piles of test results on the desk, relating to test results of ITT patients. He saw results of ASI , K10 and SF36 tests on the desk, in draws or around the desk. They were in plain sight. In his view this was in clear breach of the NSW Health Policy on Records-Principles for the Creation, Management, Storage and Disposal of health Care Records. Consideration and Decision. 77An investigation of allegations made against Mr Palmer was carried out by Ms Gael Rio, the Acting Director Drug and Alcohol and Mr Jeff Lord, Senior Human Resources Consultant. Both persons signed off on the investigation report on 29 March 2011. The report recommended that Mr Palmer be terminated. A copy of the report was provided to Mr Palmer for his response. This report was also provided to Ms Kay Hyman, Chief Executive, Nepean Blue Mountains Local Health Network. It was Ms Hyman whom on 19 July 2011 wrote to Mr Palmer and advised that his services were terminated on the basis of professional misconduct from the date of that letter. In the letter of termination Ms Hyman stated the allegations as being: the conduct of extraneous psychological tests on patients of the Involuntary Treatment Trial (ITT) with no authority or ethics approval; the destruction of patient clinical information without authority or ethics approval; and the improper storage of patient clinical information. She also advised that the Australian Health Practitioner Regulation Agency (HARP) would be notified in accordance with legislative responsibilities. Also that his name would be recorded on the Service Check Register for NSW Health Services in accordance with NSW Health Policy Directive PD2009_004. 78The allegations occurred whilst Mr Palmer was working in the ITT. Mr Palmer commenced in the ITT when he was appointed as a Clinical Nurse Consultant for a two year period in June 2008. The trial itself commenced around February 2009 when the first patients were received. Prior to the ITT commencing NSW Health and KPMG lodged an Ethics application with the Sydney West Area Health Service Scientific Advisory Committee and Human Research Ethics Committee for the evaluation of the Involuntary Drug and Alcohol Treatment Program. This program was run under the Drug and Alcohol Treatment Act 2007( NSW). 79I will now consider the three allegations brought against Mr Palmer that resulted in Mr Palmer being terminated. 80The first allegation was that during the ITT Clinical Trial, Mr Palmer conducted extraneous psychological tests on patients of the ITT with no authority or ethics approval. 81Mr Palmer told Ms Addison -Wilson on his return to work in early March 2010 and in subsequent interviews with Ms Rao, and with Ms Rao and Mr Lord that he had carried out "K10" tests on one patient on two occasions, about one month apart, around April 2009. The "K10 " test was carried out by the patient and took around 2 to 3 minutes to complete. In Mr Palmer's view he carried the two tests out to show to the patient that she had significantly improved since coming to the trial. 82 The "K10 " tests were tests that had been approved to be administered at particular points in the trial. Such a test according to the accepted matrix would be carried out at admission, after more than 10 days and at or after discharge. 83 In his defence he stated that he had the best interests of the patient in mind, that he had not been told that he could or could not do the tests, that when tests were to be conducted was for the clinicians, such as he to decide, nor told that ethics approval would be required to carry out such tests. The carrying out of the two "K10" tests did not have a detrimental effect on the patient in question and she subsequently successfully completed the trial. Mr Palmer stated that the results of the "K10" questionnaire was used to adjust this patient's care plan. 84It was stated by the respondent that there were no clinical notes linked to any clinical outcomes in the file of this patient with respect to these two extra tests with respect to levels of anxiety and depression. 85Mr Palmer also stated that during the trial he had an idea for research which resulted in him carrying out extraneous subjective testing of patients through daily discussions and observations with them. This he did to determine the accuracy of what the patients were reporting as to their improvement compared to what he saw. He did not tell anyone about this work. These tests were done whilst in his office alone. 86It was the respondent's submission that in carrying out the extraneous "K10" testing, Mr Palmer had deviated from the strict regime of testing that had been laid down for the trial. It was wrong of Mr Palmer to believe that he had the discretion to apply extra testing when the testing regime had been discussed at length prior to the trial commencing. 87The testing of patients with respect to the administering of "K10" tests was as Mr Byrnes for the respondent stated set out in a matrix, that had been agreed upon by the various personnel attached to the ITT. The level of reporting and scrutiny that was required and occurred was greater due to this involuntary patient trial being the first of its kind in this state. 88That Mr Palmer carried out the two "K10" questionnaires is a something that he confessed to. No evidence of these tests were found by the respondent. 89Taking into consideration the background work that occurred in the applying for approval for the trial to take place, the preparatory work to formulate the content and the procedures that were required to take place during the trial, I do not accept the submission of Mr Palmer that he had the authority to carry out tests such as the "K10" contrary to the agreed time table. What is the relevance of having an agreed Outcome Measure Matrix if it is not going to be adhered to. The very essence of a trial is to measure its results in a planned methodical way. I note the comment in the National Ethics Application Form under the sub heading Research plan : Trial outcomes and evaluation findings will inform decisions to extend the legislation and service model to other areas in NSW. I understand why Mr Palmer did the "K10 " questionnaire when he was confronted by a very agitated patient whom he wished to convince of her improvement as a consequence of attending the programme. But I also recognise that Mr Palmer is a registered nurse of over twenty years who has a strong background in the care of patients with alcohol and drug issues. With such an experienced background he should have sought alternative means to support and convince this patient of her improvement without stepping out of the agreed treatment programme. 90It is my finding that Mr Palmer did carry out the two "K10" tests contrary to the laid down timetable according to the matrix. 91It is also my finding that Mr Palmer did carry out subjective testing that he neither sought to obtain approval or even advise his supervisors of. 92 Whilst he may have had the best of intentions with respect to the carrying out of these tests as expressed above, he should not have done so without the appropriate approval and should therefore not escape without paying an appropriate penalty. 93The second allegation was that of the destruction of patient clinical information without authority or ethics approval. 94Mr Palmer stated that he had spoken to his wife about the subjective testing he had been carrying out but he concluded that they were of no clinical significance and therefore he didn't need to keep them. He made the decision to shred them. 95 It is an admitted fact that Mr Palmer did destroy patient clinical information. 96 As previously stated that whilst at work on 9 February 2010 he accidentally knocked two piles of papers onto the floor. When retrieving same he thought he had separated the patient outcome measures which needed to be returned to patient notes, and the papers of the subjective assessments of patients he had carried out as part of his private study which he intended to destroy. That night he shredded those subjective assessments but in his haste to do so and leave on time he also shredded some of the patient outcome measures. 97 It was Mr Palmer's submission that this was a pure accident. I accept that his action in shredding the patient outcome measures was an accident. 98It was also his belief that his mental issues at the time impaired his judgement and contributed to the mistake. It was Mr Palmer's submission that his mental health had been deteriorating since the later part of the previous year. 99He stated that he was working a high number of hours, his memory was not good he had paranoia, lack of sleep, nightmares and poor eating habits. He believed he had adult ADHD. 100The next day he realised his mistake and withdrew himself from work as he did not wish to injure a patient accidentally . He left work without telling anyone and proceeded to try and see his doctor which he did the following day. 101In the investigative report it stated in part ; ..that an experienced clinician of Mr Palmer's ability is guilty of any, or all of the following; gross incompetence in terms of being completely unaware of what documentation he was destroying; deliberately and knowingly destroying documentation, in an attempt to disguise his incompetence in conducting and maintaining records relating to the Involuntary Treatment Trial; behaving corruptly in terms of attempting to destroy documentation that he either perceived, or knew, would incriminate him at a later stage. Mr Byrnes stated that the investigator's never made a finding that Mr Palmer was guilty of all three, but suggesting that he may be guilty of any or all of those. 102 In his submission it was the failure of Mr Palmer to methodically check each page and restore them very carefully to their rightful pile and then recheck that all was correct. Mr Byrnes went on to submit that the destruction of the extraneous files was an attempt to disguise the fact that he had been undertaking that extraneous testing. 103When considering mitigation in their investigation report, Ms Rao and Mr Lord stated the following: The mitigating circumstances outlined at interview by Mr Palmer regarding his impaired psychological well-being ,do not absolve Mr Palmer in terms of any guilt in terms of any of the incidents of misconduct that he was responsible for. 104Mr Byrnes stated that the two investigators had no medical evidence from Mr Palmer before them for consideration. Mr Palmer stated that he left his place of work on 10 February 2010. The next day he saw Dr Catherine Bailey who placed him on sick leave. The first NSW Work Cover Medical Certificate issued by Dr Bailey stated Diagnosis : acute anxiety and depression. In my opinion , the worker's employment is a substantial contributing factor to this injury She goes on to state that he is unfit to work from 11/2/10 to 22/3/10. Also that he is fit for suitable duties from 11/3/10 to 12/3/10- 4hours a day only. 105It was on 11 March 2010 that Mr Palmer had an interview with Ms Addison-Wilson and Ms Rao concerning his return to work programme. The following day Mr Palmer worked at the Gateway Clinic until 15 March when he was absent from work. 106The second certificate continues with the same diagnosis and stated that he is unfit to work from 23/3/10 to 23/4/10. 107The third certificate continued with the same diagnosis and stated that he is unfit for work from 23/4/10 to 23/5/10. 108In her medical report Dr Bailey(dated 1/9/2011) gave a history of Mr Palmers psychological health stating the medication that she put him on 11 February 2010, that he at that point was unfit for work and that she referred him to Dr Jeff Bertucen. She stated: His depression and anxiety may well have lead to an incident at work where he inadvertently shred some documents pertaining to the piolet (sic) programme he had been running himself. He has however with time, been able to work through a number of these issues and with the help of his psychologist (Nicolina Rotundo), his psychiatrist ( Dr Jeff Bertucen) and his medication, Richard had been able to return to work in a productive and full role. He is therefore currently fit for work as a registered nurse. 109In his medical legal report (dated 14 June 2010) Dr Bertucen stated that Mr Palmer first consulted with him in March/April 2010. Under the sub heading Diagnosis he states: In my opinion, Mr Palmer has suffered a psychological injury as a result of conditions within his workplace. This has led to the development of a chronic Adjustment Disorder with Depressed Mood and Anxiety. An Adjustment Disorder is defined diagnostically as a disturbance of mood which can arise within three months of exposure to an identifiable stressor. The condition is referred to as chronic if symptoms persist for more than six months( and this time frame has been exceeded) and symptoms can continue in the event of absence or removal of the stressor. Under the sub heading Client's fitness for employment in their pre-injury occupation: he states: In my opinion, Mr Palmer is not psychological capable of returning to his pre-injury occupation (i.e. as a policy CNC working within the Nepean Hospital Drug and Alcohol Unit). I consider that there would be a high probability of Mr Palmer emotionally decompensating again (within further loss of productivity and time away from work) if he returned to his previous section. Under the sub heading Client's fitness for work other than in his pre-injury occupation: he states : I consider that Mr Palmer is inherently psychologically capable of returning to (ultimately) full time work in areas of nursing other than his pre-injury occupation. Under the sub heading Any permanent disability likely to result form(sic) the injury received, including percentage loss of function : he states: I do not consider that Mr Palmer's psychological impairment as determined today is likely to be permanent. 110In a second report from DR Bertucen dated 7 September 2011 he stated that he first saw Mr Palmer on 18 March 2010. He stated: Mr Palmer presented with symptoms of agitated major depression which in my opinion were a direct consequence of employment-related factors. Further he states: Mr Palmer claimed that the unfortunate incident ( the accidental shredding of some documents) was a genuine mishap which occurred as a result of absent-mindedness. In my opinion Mr Palmer's account of this incident is genuine and entirely congruent with his symptoms of confusion, impaired focus and impaired memory, consistent with the claimed condition. He finishes his report by stating: In my opinion, Mr Palmer is currently psychologically capable of working full time in his pre-injury role as a Registered nurse. 111In giving evidence Dr Bertucen stated that he did not believe that Mr Palmer was fit to work in his role as a policy CNC working within the Nepean Hospital Drug and Alcohol unit but he believed he was fit to work in an alternative environment. 112As previously expressed in this Decision Mr Byrnes stated that the investigating officers Ms Rao and Mr Lord, did not have any medical evidence from Mr Palmer. Mr Palmer was off work from 11 February 2010 to at least 23 May 2010 ( he worked 11 and 12 March 2010). Ms Addison-Wilson gave evidence that she advised Ms Rao in early March 2010 that she had concerns about Mr Palmer's mental health. Exhibit I in these proceedings was a copy of Ms Rao's statement that she completed as part of the respondent's evidence with respect to Mr Palmer's workers compensation case. In this statement, dated 12/04/10, Ms Rao is aware that Mr Palmer " has been off work for much of the period since around 11 February 2010 in connection with his claim." She also states " Richard Palmer, seeks workers' compensation benefits in respect of his claimed emotional condition." 113Ms Rao admitted in cross examination that she was told verbally that the workers compensation was around stress related-work related stress. 114 In my view from reading Ms Rao's workers compensation response statement, the issue she is responding to concerning Mr Palmer's workers compensation claim is one of "anxiousness" rather than something obvious such as a broken bone. Therefore in April 2010 Ms Rao at least, would have had a general understanding as to the reason why a person under her control had been off work for at that time near two months. 115From the evidence given by Ms Rao both she and Mr Lord did not take into consideration the well being of Mr Palmer when the shredding took place in February 2010. In my view Ms Rao considered the actions taken by Mr Palmer in around April 2010 with the extra testing as being wrong, and it was only after the shredding in February 2010 that he was not well. 116By the time the investigation carried out by Ms Rao and Mr Lord commenced in around September 2010 the hospital would have had in its possession or knowledge the Work Cover certificates raised by Dr Bailey. 117Ms Rao in responding to a question from the Commission stated: "I was aware at some point there were some issues he was having he was following up with a psychiatrist." 118It is my view that the investigation with respect to the second and third allegation was remiss in not taking into consideration the mental health of Mr Palmer. The investigators had the knowledge that Mr Palmer had been absent from work for a considerable period of time and the reason for this absence. The three Work Cover medical certificates from Dr Bailey should have been sought and given strong consideration as a reason why an experienced registered nurse would make such an error in shredding clinical notes. 119 In my view an investigator's role is to search out and gather facts. Ms Rao was because of her earlier action in completing a statement with respect to Mr Palmer's workers compensation claim, in an ideal position to instigate a search with respect to medical evidence supporting the absence from work of Mr Palmer for such a lengthy period of time and to take such evidence into consideration. 120It is my finding that on the balance of probability what took place on the afternoon of 9 February 2010 in the failure of Mr Palmer to closely examine and separate the clinical notes from the subjective notes and only shred the subjective notes was out of character and can be attributed to his poor mental state at the time. 121It is also my finding that the realisation on the following day of the error he had done only exacerbated his mental health situation which resulted in him finally recognising how bad his mental health situation was, and vacating the hospital without advising his superiors of what he had done or clear up his desk. 122The third allegation was the improper storage of patient clinical information. 123It was the evidence of Ms Addison- Wilson that a couple of weeks after Mr Palmer had gone home sick she had cause to go to his office and found original notes in a draw that should have been in the patient's medical file. 124The evidence of Ms Beresford who shared an office with Mr Palmer was that his desk was generally tidy. Her evidence was that after Mr Palmer had gone off on extended sick leave his desk was still quite organised with papers in a neat pile. She stated that during a day when Mr Palmer was working the desk may not always be tidy but at the end of the day the desk was tidy in an orderly fashion. 125It is my view that what was on or in Mr Palmer's desk when searched by Ms Addison-Wilson and then again with Mr Costello could have been as a consequence of a number of factors. One that Mr Palmer left abruptly in a unbalanced mental state and did not carry out his normal end of the day tidying up process and or other employees could have dropped papers off on his desk post his leaving work. No comment was made by the respondent with respect to any previous issue or warning with Mr Palmer over the improper storage of patient clinical information. When questioned about this issue in September 2010, some eight months after he had left, and without the documents or copies of same to view, I can understand why he may not have had ready answers to explain. 126It is my finding that on the balance of probability it was the poor mental health of Mr Palmer and his abrupt departure from his office that resulted in him leaving his desk in the state that it was found several weeks later. 127Therefore in summary it is my finding that with respect to the three allegations I find only the first allegation proven. With respect to the other two allegations it is my finding that his poor mental health was the cause of his shredding patient clinical information in error and the leaving of his desk with patient clinical information unsecured. 128Much comment was made during the hearing with respect to the workload that Mr Palmer experienced. It was the evidence of Mr Palmer that he did not believe he received the promise support during the ITT. He felt he was working alone and did not have the confidence to go to his superiors. Both Ms Addison-Wilson and Ms Rao did not accept this and gave evidence that whilst the ITT was a first and everyone was learning, it was well funded and had appropriate staffing and support. Whilst not directly required to make a finding with respect to this issue it is my view that it was perhaps the thinking and reasoning process that Mr Palmer was going through at the time that generated negative thoughts that in reality did not have a strong foundation. 129Another issue raised by Mr Hurley -Smith for the applicant was the role Ms Rao played in completing a statement for the respondent with respect to the workers compensation claim made by Mr Palmer and then later in the year with Mr Lord investigating three allegations made against Mr Palmer. Mr Hurley-Smith stated that because of her earlier statement made in April 2010, she was biased against Mr Palmer when she took up the role of co-investigator later the same year. This Ms Rao denied, as she saw the two issues as separate. Ms Rao holds a senior position with approximately 150 full time equivalent employees reporting to her. I would believe that Ms Rao has at times a difficult job taking into consideration the work the employees who report to her carry out. I accept the evidence given by Ms Rao when she said that she with Mr Lord carried out the investigation to the best of her abilities and I do not think she was biased in her investigation. 130Consideration must now be given based on my findings in this case as to whether the termination of Mr Palmer was harsh, unreasonable or unjust. 131In Rose and Telstra Corporation Ltd (Q9292)4/12/98 Ross VP stated In my view , for the purpose of s.170CG, a termination of employment may be : Harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct; unjust, because the employee was not guilty of the misconduct on which the employer acted; and/or unreasonable ,because it was decided on inferences which would not reasonably have been drawn from the material before the employer. A Full Bench of this Commission authority reaffirming the distinction between the three words, and requiring the Commission to make a positive and specific finding on a dismissal is to be found in Bankstown City Council v Paris (1999) 93 IR 209: The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made. 132In the circumstances of this case and in the findings I have made with respect to the three allegations, it is my finding that the termination of Mr Palmer was harsh unjust and unreasonable. 133The applicant seeks to be reinstated back to his previous substantive position, that is as a clinical nurse specialist at Nepean Blue Mountains Local Health District with continuity of service as well as remuneration to make up for loss of pay. He also seeks that the service check register record bearing his name be deleted. 134It was the respondent's submission that if the Commission finds that the termination was unfair then because of lack of contrition by Mr Palmer then compensation would be appropriate. Also there was no evidence as to the steps taken by Mr Palmer to find alternative employment. 135The preference that the Commission has for reinstatement over monetary compensation was enforced by the Full Bench of this Commission in Burge v BHP Steel Pty Limited (2001)105 IR325, in the following passage: In considering the practicability of reinstatement, we are very mindful of the approach adopted by a Full Court (Wilcox CJ, Marshall and North JJ) of the then Industrial Relations Court of Australia in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at pp 191-192 where their Honours observed that "each case must be decided on its own merits" but that "in most cases, the employment relationship is capable of withstanding some friction and doubts". As their Honours observed further, "what is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive" and that "if the employer is of even average fair-mindedness, (the problems) are likely to prove short-lived". Those comments have been cited with approval by Full Benches of this Commission in Hollingsworth v Commissioner of Police (No 2) (88 IR at pp 341-342), CCH Australia Ltd v Bowen (1998) 79 IR 206 at pp 217-218 and Oswald v New South Wales Police Service (1999) 90 IR 42 at pp 67-68. We affirm the approach as appropriate in the present case. In short, and even given the appellant's provocative conduct towards Mr Usher over a period of time and his use of coarse language, we are of the view in all the circumstances that termination of employment was far too severe a penalty. 136Whilst Mr Byrnes believed that Mr Palmer lacked contrition with respect to what he had done, I do not agree. It was evidence in this case that Mr Palmer apologised to both Ms Rao and Ms Addison-Wilson, which they confirmed, when they met on 10 March 2010. It is my view after having the opportunity to observe Mr Palmer give evidence that he was extremely remorseful for what had taken place and was most eager to return to his position and be able to contribute again to the community. It is therefore my finding to re instate Mr Palmer back to his substantive position. For clarity this is not the position Mr Palmer held at the point of termination at the Gateway Clinic as it is my finding that his positioning there by Ms Rao, was on an interim basis only. 137The applicant gave evidence in his statement that since termination he has been unemployed and has been actively seeking work. Other than that ,no evidence was led by the applicant with respect to details of applications and or interviews nor on the other hand sought by the respondent. 138The applicant also seeks full back pay for lost remuneration. I note the following comment from a Full bench of this Commission in Sydney Ferries Corporation v Seamens' Union of Australia [2009]NSW IRComm126 stated as follows : It is a common practice in unfair dismissal cases where an order for reinstatement is made, for orders of back pay (or, more correctly described, lost remuneration), to be tailored according to any identified culpability of the applicant as to the circumstances surrounding his/her dismissal. Thus, in cases where misconduct may be found by the Commission to be proven, but not necessarily justifying dismissal (as is the case here), or in circumstances where a dismissal is found to be too 'harsh' (again, as is the case here), a lesser amount, or no amount at all, may be considered as a 'penalty' for the applicant's conduct. There is nothing inherently wrong in this approach: see Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296. In the present case, we do not consider it appropriate or just for Mr Levy to receive back pay given his contribution to the circumstances that led to his dismissal. 139Whilst reinstating Mr Palmer I do not believe it appropriate that he be paid full back pay in the circumstances where he carried out extraneous psychological tests on patients. It is therefore my finding that he should receive only half back pay. Orders. I make the following Orders: 1.That in accordance with section 89 (1) of the Act, the Nepean Blue Mountains Local Health District reinstate Mr Richard Palmer to his substantive position of Clinical Nurse Specialist within 14 days from the date of this decision. 2.That in accordance with section 89(3) of the Act , the Nepean Blue Mountains Local Health District pay to Mr Palmer one half of the remuneration of ordinary time earnings that Mr Palmer would have received from the date of his termination to the date of his reinstatement to be paid within 21 days from the date of this decision. 3.That in accordance with section 89(4) of the Act, the period of employment of Mr Palmer is taken not to have been broken by his dismissal. 4. That in accordance with section 89(8) of the Act, the Nepean Blue Mountains Local Health District take whatever steps necessary to remove Mr Palmer's name from the Service Check Register. d.ritchie 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: 24 April 2012