Industrial Relations Commission New South Wales Medium Neutral Citation: Hargreaves v NSW Health Services Northern Sydney Local Health District. [2012] NSWIRComm 1012 Hearing dates: 28/03/12 ,29/03/12, 27/04/12 Decision date: 01 June 2012 Before: Ritchie C Decision: Catchwords: Unfair dismissal - Health industry-allegation of assault by security officer on patient. Held -defensive action-officer involved in medical procedure when patient sought to bite him-found action taken by officer instinctive defensive not an assault. Found termination harsh, unreasonable and unjust-reinstatement ordered. Legislation Cited: Industrial Relations Act, 1996 Cases Cited: Samad v Public Service Board (New South Wales) (1983): Briginshaw v Briginshaw (1938) 60CR336. HREA on behalf of Robert Drinson v Hunter Area Aealth Service (2002)NSWIRComm270 NSW Nurses Assoc.(on behalf of Colin Prior) v South Eastern Sydney & Illawara Area health Service (2007)NSW IRComm164 Re-dispute Dismissal of Union Delegates at Homebush Abbattoir (1966) AR(NSW)371 Category: Principal judgment Parties: Mr Bryan Hargreaves (applicant) NSW Health Services Northern Sydney Local Health District (respondent) Representation: Mr D O'Sullivan (applicant) Mr J Isaken of Adams & Partners Lawyers(Applicant) Ms S Price of Bartier Perry (respondent) File Number(s): IRC 1559 of 2011 DECISION 1 On 29 September 2011 Mr Bryan Andrew Hargreaves (the applicant) filed a claim for unfair dismissal against the NSW Health Service Northern Sydney Local Health District ( the respondent) pursuant to section 84 of the Industrial Relations Act, 1996. 2The matter was called on for a conciliation on 16 December 2011 but was not successful in resolving the matter and dates for the filing and serving of evidentiary material was provided to the parties. 3The hearing was held over three days with the decision being reserved at the end of final submissions. Applicant's Case. 4The applicant commenced with the respondent on 14 December 2009 as a Security Officer and was terminated on 14 September 2011.The reason for termination was that on 7 June 2011 he struck a patient whilst a medical procedure was being carried out. 5Prior to commencing with the respondent he stated that he had over twenty years experience in the security industry, including being the sole proprietor of his own security business. 6He stated that on 7 June 2011 he commenced at 8.30am, a four hour overtime shift at the Mental Health Intensive Care Health Unit ( MHICU) at Hornsby Hospital. At approximately 11.00am Dr Tina Kastowsky approached himself, Mr Dave Edwards another security officer and some nurses for assistance in the taking of blood from a scheduled patient (CB). He said that after consulting with the nurses Dr Kastowsky made the decision to take the blood sample in the patient's bedroom with the patient in a seated position. There were six persons in the room. They being Dr Kastowsky, Nurse James Wall, Nurse Mark Campbell, Nurse Steve Read, Security Officer Dave Edwards and the applicant. Each person held an arm with Nurse Campbell standing at the doorway and the applicant kneeling down and holding the patient's legs. 7The applicant stated that he was aware that the patient CB had a previous history of aggression and unprovoked violence which had resulted in serious assault on staff. 8The patient became agitated and partially got her arm free from Mr Edwards with the applicant stating he sought to assist Mr Edwards and momentarily took his arms off the patient's legs. The patient then kicked out at the doctor before he reapplied pressure on her legs. 9The patient told the applicant to take his hands off her legs but he maintained the pressure. She then suddenly lunged forward towards the applicant and tried to bite him with her mouth wide open. The applicant said that he pulled his head away and with his open palm of his right hand he struck the left side of her face with a low degree of force. 10He said that it was a reflex defensive action. He then said to her: " Don't try and bite me." 11After the blood sample had been taken all six persons left the patient's room. The applicant then stated that he apologised separately to both the doctor and Nurse Wall , stating that it was a reflex action to defend himself. 12As no computer was available to finished his shift and went home at 12.30pm. At home he wrote up in his contemporaneous notebook so that he could compile an Incident Report on 10 June 2011. 13On 10 June 2011 the applicant stated that a risk assessment was carried out and on that day he was placed on special leave. 14On 14 June 2011 he received an email from Mr Scott Anderson, Manager for Security Services for Northern Sydney Local Health Network advising that an investigation was to take place concerning the incident on 7 June 2011. He was aware that this was going to take place and had already sent an email to Mr Anderson on 12 June 2011 raising his concern that the persons that were involved in the investigation, Mr Anderson, Mr Steve McLeod and Mr David Fenech were person that he had had previous difficulties with. 15On 17 June 2011 the applicant was interviewed by Ms Maree Jones and Mr Stewart Adams with Ms Kim Muller from the Health Services Union as his support person. 16On 23 June 2011 he received a letter from the respondent stating that as a result of the disciplinary action he was facing his name had been placed on Security Check Register (SCR). 17On 15 July 2011 he received a letter from the respondent to state that the investigation had found sufficient evidence to support allegations that he had breached certain sections of the NSW Health Policy Directive Code of Conduct . He received a copy of the investigation. He was given the opportunity to respond by 29 July 2011. 18 In another letter received early August, 2011 from the respondent signed by Mr James Brown, Director Corporate Support, addressed some of the matters raised in the applicant's reply letter. It also stated that it was recommended that his employment be terminated on the grounds of serious misconduct arising from the incident of 7 June 2011. Other work related issues were raised in the correspondence. 19On 19 August 2011, the applicant had a final disciplinary interview with Mr Brown and Mr Fenech. With the applicant was Ms Muller and Mr Randall Millington from his union. In this interview the applicant was asked why he should not be terminated. 20On 14 September 2011 the applicant received a letter from the respondent advising that his services had been terminated. He also received a letter from the respondent dated 14 September 2011, that his record on the SCR had been altered. A copy of the SCR was attached. 21As at June 2011 in addition to being employed by the respondent he also undertook casual work as a Security Officer with Western Sydney Local Health District at Westmead Hospital and South Western Local Health District at Fairfield Hospital. His employment at Fairfield Hospital ceased in September 2011 and his work at Westmead Hospital was placed on indefinite hold in September 2011. 22The correspondence of early August 2011 also included two additional conduct matters. One issue was an incident between the applicant and another worker Mr Mark Muldoon. The other was an allegation that the applicant had failed to declare all secondary shifts. 23The applicant stated that he had previously raised issues of staff safety at Hornsby Hospital in general prior to 7 June 2011. It was his view that nurses had not been properly trained in Aggression Response as well as becoming acclimatized to the high risk environment which contributed to complacency and poor judgement. In his statement the applicant detailed previous incidents within the Mental Health Unit. 24It was the applicant's view that on 7 June 2011, the patient should not have been put in the sitting position. It was the doctor who made that decision. In his view the patient should have been placed in the "Supine" position lying face up with arms stretched and her limbs being held firm whilst the blood sample was taken. 25Since his termination on 14 September 2011 the applicant stated that he has worked on a casual basis for two large security manpower firms. He stated that he earns approximately $500 per week from this work. He stated that his wife was 20 weeks pregnant and works part time as a Senior Nurse at the Westmead Hospital Emergency Department. 26In his statement in reply the applicant stated that as a consequence of having his name placed on the SCR he had lost his position with Fairfield Hospital and had his employment on indefinite hold at Westmead. He was unaware of whether any risk assessment had been undertaken at Westmead. He had made application for a fulltime security officer's position but was not successful. No reason was given. 27He also responded to the issue of the secondary employment investigation stating that he had not the opportunity to respond in the allotted time. He also stated that an agreement reached between his union representative and a Ms Joanne White from the respondent made on 18 October 2011 was later reneged on by Ms White. 28In response to Mr Wall's statement the applicant stated that there was never any black cube of foam put between the patient's legs or surrounding the patient's legs. He stated that he has never used it or seen it. He also rejected the conversation had between the applicant and Mr Wall. The applicant said that the conversation went as follows: Applicant: " I acted in self-defence, she was going to bite me." Wall. " I know, these things happen but be careful as she's (Dr Kastowsky) known for covering herself by reporting anything that happens." 29The applicant stated that he never undertook any training that was called Prevention and Management of Violence and Aggression (PMVA), however he had undertaken Aggressive Response Team (ART) training at Hornsby Hospital. 30The applicant stated that he asked Mr McLeod for him to undertake a Critical Incident Positive Outcome course but his request was declined. 31He said that he was not PMVA trained. 32He stated that he was not part of the nursing staff in MHICU and had not been involved in the briefing regarding patient CB. 33The applicant acknowledges that he did ART training at Hornsby and it was similar in content to exhibits SA3 ( ART) and SA5 (Patient Physical Restraint). He stated that did he undertake training " NSCCH Zero Tolerance, Aggression Minimisation Program" (SA4) or " Respond Effectively to Difficult and Challenging Behaviour" (SA6). 34In written submissions, it was stated that the form of restraint used on the patient on 7 June 2011 was a form of restraint for which the applicant had not been taught to use by the respondent. It was in self defence that the applicant swung his right hand in open fashion at the patient which hit her on the side of the face as well as moving his head away from the patient. It was stated that the respondent had not accepted the applicant's explanation that his actions on that day were self defence and therefore the allegation is that the applicant assaulted the patient. 35 It was also stated that that only two of the witnesses in the room at the time were called to give evidence( not counting the applicant and the patient). No explanation as to why the other two were not called by the respondent. It stated that the evidence of Doctor Kastowsky did not contradict that of the applicant. The evidence of RN Wall's that the action was retaliatory rather than self defence should not be accepted where the evidence shows that the contact was almost instantaneous rather than some point after the patient's attempt to bite the applicant. It was the applicant's submission that his action was not retaliatory but was self defence. Although his action was instinctive it was in a measured and controlled manner in that the force used was proportionate to the threat faced. It was submitted that there was no evidence that the applicant wilfully intended to conduct himself in a manner inconsistent with his contract of employment. 36 The effect of placing the applicant's name on the Service Check Register for NSW Health Services is that the applicant is unlikely to ever be employed in the Public Sector Health industry. The loss of his full time position has resulted in the loss of further casual employment at the two other hospitals. 37That the respondent failed to call either Mr Brown or Mr Griffiths without explanation infers that any evidence that they could have given would not be in the respondent's favour. Did they take into consideration the impact that termination would have on the applicant and what if any other sanctions other than termination were considered ? It was submitted that the termination was unreasonable, unjust and harsh, particularly in circumstances where a warning would have been sufficient. 38 The applicant sought an Order for reinstatement or redeployment, with back pay and continuity. If the Commission determines that reinstatement should not be ordered than an order of 26 weeks payment should be made. Respondent's case 39Mr David Fenech stated that he is the Workforce Service Manager, Workforce Directorate for the Northern Sydney Local health District and has been employed by the respondent since January 1999. He is responsible for the providing of human resource advice and support for managers including matters of misconduct and disciplinary. He reports to Mr Richard Griffiths, Director Workforce and Culture. He has held his current role since March 2007. 40He stated he was advised on 10 June 2011 by Mr Steve McLeod, Security Supervisor at Hornsby Hospital of an incident that involved the applicant and a patient within the MHICU that had taken place on 7 June 2011. He was advised that the applicant had struck a patient and that he held statements from those that had witnessed the incident. 41On the same day he conducted a risk assessment of the applicant which resulted that if the applicant remained on duty the risk to others would be high if the allegation was true. Prior to the applicant being formally interviewed it was recommended that he be placed on special leave. 42Correspondence was sent to the applicant advising him that an investigation was to be carried out and that he remain on special leave until the investigation took place. The applicant was provided with a copy of the statements, the Code of Conduct and the risk assessment. 43He also placed an entry on the Service Check Register on 21 June 2011. 44The investigation was finalised in early July 2011 with the investigators finding sufficient evidence to support the allegation that the applicant had struck a patient to the head in breach of the NSW Health Code of Conduct. 45Mr Fenech stated that he prepared a letter for the signature of Mr Brown to be sent to the applicant with a copy of the investigation report, providing him with the opportunity to respond either in writing or in a meeting. The applicant provided a written response. That response was considered by Mr Brown and Mr Fenech and they responded with correspondence to the effect that they would be recommending that the applicant be terminated. 46A meeting took place on 19 August 2011 between the applicant and two union representatives and Mr Fenech and Mr Brown. A decision was made post that meeting for the applicant's services to be terminated and a letter to that effect dated 14 September 2011 was sent to the applicant. 47The letter of termination provides the reason for termination being the incident that occurred on 7 June 2011. No other reason is stated. 48Post the termination the Service Check Register was updated noting that the finding had been "substantiated" and he had been dismissed. The applicant was advised of this. 49Mr Fenech also stated that whilst the investigation was taking place , a second investigation concerning the applicant, involving the applicant working a second job with another hospital was taking place. Secondary employment is allowed as long as it does not interfere with the primary job and that approval has been sought and granted. Mr Fenech stated that he could not locate the record of the applicant seeking such approval. 50Doctor Tina Kastowsky stated that she is the Registrar of the Psychiatric Emergency Care Centre (PECC) at Manly Hospital. In this position she also covers the Emergency and Consultant Liaison Psychiatry. She has been employed by NSW Health since January 2006.In her statement Doctor Kastowsky gave a background to her studies and appointments in various hospitals. In the first six months of 2011 she returned to work in MHICU this time under the supervision of Doctor Nicole Melidonis and the following six months in the Lindsay Madew Unit (LMU) at Hornsby Hospital. 51She stated that the MHICU is an acute specialized psychiatric unit with twelve beds that generally admits patients that pose management difficulties in general acute psychiatric units. These difficulties are often due to high levels of aggression, severe psychosis or mood disturbances, and high levels of suicidality. 52She stated that patient "CB" is a 24 year old female who suffers from severe treatment resistant schizophrenia. The doctor was aware that the patient had a history of aggression and had assaulted staff and other patients in the past. The doctor stated that she had reviewed CB 47 times since being admitted on 9 March 2011. 53On 7 June 2011 she was required to take a blood sample from CB. This the doctor had done on seven previous occasions without incident. She spoke with the nursing staff especially James Wall about the reasons why it had to be done. Being aware of the patient's violent tendencies she and Nurse Wall reviewed collaboratively her current mental state, number of nursing staff on duty and the experience/confidence of the nursing staff with Prevention and Management of Violence and Aggression ( PMVA) techniques. It was decided to use the same method as previously when taking blood using PMVA restraint techniques. 54It was also decided not to use an ART because of the improved mental state of CB based on clinical assessment, her care plan that had been approved by Doctor Melidonis and that the patient found ART calls distressing and traumatising. The staff were PMVA trained and worked well with difficult patients on a regular basis, using PMVA techniques the distress to CB would be minimised while managing the risk of her violent behaviour. This technique had been used before to take blood from CB without incident and it was consistent with trying to de-escalate and minimise violence than increase it. 55The necessary staff were assembled being two security offices to restrain and two members of nursing staff. The method of restraint was discussed so that everyone knew what their role would be and had an opportunity to express any concerns. 56One security officer held her right arm with the two nurses holding her left arm which the doctor was going to take the blood from, and the applicant holding her legs. The doctor stated that she spoke to CB about what was going to happen. When the doctor was preparing to take blood CB sought to kick her. She kept on taking blood and noted that CB became slightly agitated and moved her head and torso forward. 57She then saw the applicant's open palm of his right hand make contact with CB's face with moderate force making a loud slap sound and she heard the applicant say: " Don't try and bite me." 58Later she said that she spoke to Nurse Wall and said to him words to the effect: " I can't believe that just happened." A little bit later the applicant came up to her and said : " I'm sorry , I shouldn't have done that." He stated that it was a reflex action as CB was trying to bite him. 59She said that she informed Doctor Melondonis of the incident. She was later asked to make a statement. 60In response to the applicant's statement she stated that whilst she agreed that CB did move her head and torso forward, she would not describe it as " lunged forward toward me and tried to bite me with her mouth wide open". She also disagreed that it was a low level of force used. In her view it was a definitely moderate force used. 61She also disagreed with the applicant's view that the patient should have been placed in the "supine" position with arms outstretched. She stated that after assessing the clinical situation at the time and taking into consideration CB's reported trauma background and care plan she felt it was clinically appropriate for CB to be restrained in a seated position with a PMVA hold as done previously. It was her view that in the seated position the patient feels less exposed and vulnerable. This was especially important in CB's case. 62Mr James Wall stated that he is a registered nurse and currently works in MHICU at Hornsby Hospital. He is a Clinical Nurse Specialist grade 2. He has been employed by the respondent since January 2006, and has worked in the MHICU since 2007. 63He stated that he does not consider the work dangerous as the risks are known, are constantly monitoring those risks and patients mental state/behaviour and plan and manage them as safely and effectively as possible. 64In June 2011 Doctor Tina Kastowsky was one of the Psychiatric Registrars working in MHICU. He stated that he had no concern over her patient care. 65He stated that he was aware of CB and her potential to be aggressive. He had many interactions with her and she had sought to assault him on a couple of occasions. He was very conscious of safety when interacting with her. 66On 7 June 2011 he had a conversation with Doctor Kastowsky with respect to her requirement to take a blood sample. How best to carry out this procedure was discussed. This taking of blood from CB had been done 2 or 3 times before, so it was decided they would do it in the same way as previously, which was to sit her up on her bed, using both nursing and security staff to restrain her. 67It was discussed whether an ART should be called and it was decided it was not necessary. Even if an ART had been called Nurse Wall stated that he would have recommended that the patient be held in the manner that she was whilst the blood was taken. 68Before they went into the room all of the people who were going to be present discussed what had to be done, and team members were informed of their role during the procedure. The applicant was to restrain CB's legs and the rest would use a hold learnt as part of their PMVA training. 69During the procedure Nurse Wall stated that he had to sit next to CB with the other nurse having to hold the patient's palm facing up. A black cube of foam was used which was put on the legs of the patient so she could not kick out her legs. He stated that he had no recollection of the other security officer having difficulty holding the patient's arm or the patient kicking out. 70He stated that he did recall that the patient did lunge forward with her eyes closed, as she was half asleep. 71 In his view it was not a good attempt at a bite, but rather half hearted. He did not believe that the applicant was at any risk of being bitten. If he thought he was going to be bitten he could have swayed his head/torso slightly back and he would have been at no risk of being bitten. 72He then heard a loud slap with the applicant's right hand hitting the patient's face. In his view everyone was surprised including the patient who then started to struggle. He said that he was focused on the patient's arm as the needle was still in her arm. 73The procedure was completed and the doctor left the room, the sharps had been safely contained and the patient calmed down and he and the other staff left the room. 74Later he said that he spoke to Doctor Kastowsky and said something like: "Do you believe what just happened ? What should we do about it?" The doctor said that she was going to speak to her manager. 75Later the applicant approached him and words to the effect were said: Wall : " What just happened ? Why did you do that ?" Applicant: " I shouldn't have done it, I did the wrong thing." Wall: " You know we can't hit patients" Nurse Wall said that he spoke to his manager the next day as his manager was not on duty that day. 76He said that he was told to make a statement and record it in IIMS, the on line incident recording system. 77He stated that this was the first time he had ever seen a patient being hit by a staff member even though he had been working in the MHICU with very challenging patients. In his view the procedure was appropriate for the risks involved given their knowledge of the patient and her mental state/behaviour for that day. 78It was his view that the applicant's actions were not appropriate use of force and seemed more like retaliatory than self-defence. 79Mr Scott Anderson stated that he currently is the Manager, Security Services for the respondent having been employed by Health NSW since 2002 and has worked in this particular area since 2006. 80On 10 June 2011 he was advised by Mr McLeod of an incident involving the applicant and a patient that had occurred on 7 June 2011. He stated that he signed a letter dated 14 June 2011 directed to the applicant notifying him of the complaint, provided him copies of the witness statements and a risk assessment that had been carried out by David Fenech and Steven McLeod. He was not involved in the day to day dealings with the matter however he was aware of an investigation that was taking place. He saw a copy of the final report. 81He stated that he supported a recommendation to Mr James Brown that the applicant's employment be terminated. Based on his experience he fully supported the decision to terminate the applicant's employment. 82He stated that he had employed the applicant and that at the time of interview the applicant advised that he already had a casual position as a security guard at Cumberland Hospital. Mr Anderson stated to the applicant that he would have to complete a secondary employment form and that it would be okay as long as it did not conflict with his ability to work full time as a security guard at Royal North Shore. He said that he could not recall ever receiving a completed secondary employment form from the applicant. 83In his statement he outlined the training an induction that security guards carry out. A training induction checklist signed by the applicant was attached to his statement. Security staff attend both ART ( Aggressive Response Team) and IRT ( Internal Response Team) events. Other training modules undertaken on induction are : " NSCCH Zero Tolerance, Aggression Minimisation Program", " Patient Physical Restraint" and " Respond Effectively to Difficult and Challenging Behaviour". 84In his statement Mr Anderson recounted an issue he had with the applicant concerning the matter of secondary employment and the requirement initiated by Mr Anderson for all security guards to either apply or re apply for approval for secondary employment. It was Mr Anderson's view that the applicant would not comply with his request. 85His statement also covered the subject of ART. He stated that security officers are covered by ART and receive the same training as clinical staff. He stated that where an ART is deployed, it is the clinical staff who take the lead and determine the appropriate response. Security officers are there to support and do what they are directed by the clinical staff. If a security officer disagrees with the way an ART is conducted, it is completely appropriate for the officer to raise it after the event , either lodge an AIMS report or raise it in the debrief that follows. 86In the respondent's written submission it was stated that the applicant had been in the security industry for over 25 years. It cited the appropriate parts of the NSW Health Code of Conduct covering Violence , Personal and Professional Behaviour, Good Faith, Quality Service and Occupational Health and Safety. In giving evidence the applicant acknowledged that he had read and would comply with the Code of Conduct and that failure to comply may lead to termination. The role of the security officer was set out in Protecting People and Property : NSW Health Policy and Guidelines for Security Risk Management and Health Facilities. It stated that at times it is necessary for patients to be restrained only with reasonable force and that security staff work is under the direction of clinical staff. The policy of Zero Tolerance Response to Violence ensures that appropriate action is taken to protect staff, patients and visitors from the effects of violent behaviour. On page 31 of the policy it recognises the concept of evasive self-defence but notes: "staff behaviour should be defensive, and evasive self-defence only utilised when no other options are available and escape is not possible." Whilst the applicant stated that he was away while particular training was held, he also stated that he was aware of the things that would have been covered in this training because of his previous experience in the industry. 87The respondent stated that the applicant's contemporaneous note is the version that should be preferred that is: Clare moved her head forward and tried to bite me, as self defence and reflex action my right hand slapped her hand in side of face and told her not to try and bite me. The slap was of a moderate force. 88The respondent submitted that that the applicant still did not appreciate the significance of the event on 7 June as he sought to downplay the force of his action by stating in evidence that " no one got hurt." The red mark on the patient's face testify that the slap was of a moderate force. 89It was submitted that whilst the applicant had stated that the position that the patient was put in to take the blood was wrong, it was the opinion of Doctor Kastowsky and RN Wall taking into consideration their experience in previously handling this patient, that the procedure used on that day was appropriate. 90It was also stated that with the best level of planning and risk management, unpredictable things can happen. This is especially so with patients in the MHICU. They rejected the view of the applicant that he had been placed in an unreasonable position of risk where he was the most vulnerable. They stated that security officers do find themselves in unpredictable situations and it is how the officer responds is the issue. 91It was stated by Doctor Kastowsky and RN Wall that the applicant could have leant back and or taken a step back. This would have taken him outside the range of the patient. The applicant's submission that his actions were evasive self defence were not accepted by the respondent. The range of movement of the patient at the time was very limited. 92The argument that the applicant did not have enough training was rejected by the respondent taking into consideration the applicant's history in the industry and his experience working at three hospitals. The applicant gave evidence that he understood the role of a security officer in de-escalating and managing violence, not to escalate violence. 93The respondent submitted that the applicant's suggestion for the future that he take part in all future briefings would be impractical as it does not reflect the way in which the health system operates, especially in MHICU 's. The applicant had sought to blame others for his own reactive behaviour. The applicant did not express remorse at the earliest opportunity and any further training would not help when the underlying instinctive reaction is to respond with violence. Considerations and Decision. 94In the applicant's letter of termination it was stated : It is noted that during the interview of 19 August 2011 you could not give any guarantee regarding your actions if faced with a similar situation in the future. Your intention to involve yourself in all future briefings prior to action is not always feasible as matters often escalate quickly. You also revealed a lack of control over your actions citing that your action was a defensive mechanism. It is my opinion that your actions were aggressive in striking the patient , not consistent with the standards expected of your position and is contrary to your claim that it was defensive. In describing the outcome of the incident you advised that your actions helped bring the circumstances under control and that it avoided anyone from being seriously hurt. This view is concerning in that it indicates a belief that your actions were appropriate. Overall, your responses are defensive, blaming of others and reflect no serious attempt to accept ownership of your actions or consequences. Given your responses, I remain convinced that your behaviour poses a significant and continuing risk to patients. 95The allegation that commenced the investigation into the incident of 7 June 2012 was stated in the following form: It is alleged that On 7 June 2011 at approximately 11.00am hours at Hornsby Hospital Mr Bryan Hargraves did breach the : 1. NSW Health Policy Directive PD 2005_626 Code of Conduct; sub clauses 1.1 Personal and Professional Behaviour and 1.3 Professional Standards, 1.6 Quality Service, 7.2 Violence, 8.1 Occupational Health and safety and 8.2 Injury Management; in that he deliberately struck a patient to the head with his hand during the course of his duty. 96 It was stated by the Government and Related Employees Appeal Tribunal and accepted by the Court of Appeal in Samad v Public Service Board (New South Wales) (1983) that : " The community looks to the respondent employer to ensure that persons under institutional psychiatric care are not subjected to assault by those whose duty it is to care for them. It expects that employees who breach this requirement will not be retained in that employment. The Tribunal considers the circumstances of this case do not permit any result other than one which demonstrates that assault by employees of persons resident in State institutions will not be tolerated." 97However, it is also undoubted, and consistent with well established principle, that where an allegation of misconduct is raised as a defence or justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden in an evidentiary sense to establish the allegation shifts from, in this case, the applicant to the respondent: see Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70; Budlong v NCR Australia. 98Although it must be accepted that the respondent carries the onus to be discharged according to the ordinary civil onus, on the balance of probabilities, the very nature of the issues involved and the consequences of a decision to summarily dismiss an employee, required the respondent to make out its case in a convincing way. It has been long established that the dicta laid out in the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336, should apply. It is timely in such circumstances, in my view, to once again set out the observations of Dixon J (as he then was) in Briginshaw at 361 - 363: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. 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 question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. ...This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues ... But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. 99It was accepted by Doctor Kastowsky and RN Wall that the patient CB had a history of aggression towards other patients and staff. It was the opinion of Doctor Kastowsky that the patient had shown signs of being less aggressive leading up to the time when she was required to take blood samples from her on 7 June 2011. On the day in question she at first spoke to RN Wall to determine what had to be done and how best to carry it out. For clinical reasons which she advised the Commission, she believed that the best method would be to have patient CB sit on her bed with her both arms being restrained by a security officer on the right arm and two nurses on the left arm. This was the arm that the blood was to be taken. Another security officer ( the applicant) would stand in front but to one side of the patient and restrain her legs by leaning on her legs just above her knees with both hands. 100 This method of restraint had been used before in carrying out the same process with the same patient without incident. Taking into consideration the previous experience of Doctor Kastowsky when taking blood from patient CB using the method of the patient sitting on the bed, I find no fault with the same procedure being taken on 7 June 2011. 101It was the evidence of the applicant that at one stage the security officer holding the patient's right arm lost control and the applicant had to adjust his position to assist the security officer to gain control. It was then that the patient sought to kick out at the doctor. 102At the point when the doctor had inserted the needle, the applicant was bent over in front but to one side of the patient. It was therefore obvious that the patient's face and the applicant's face were in close proximity. It was then that the patient moved her head and upper body forward towards the face of the applicant with her mouth open. 103It was the evidence of the applicant that he slightly moved his face away from the patient's face and struck with his open right hand the side of the patient's face. The striking of the face made a sound. The applicant said at the same time: "Don't try and bite me." The doctor completed taking blood and left the room. 104That day the applicant wrote in his work diary a brief report on the incident noting in part that : " I was given legs to hold. Clare got agitated + broke her arm away from s/o Edwards + I helped Dave take control of arm again, Clare with legs free kicked at Dr who took step back. Held legs again with my head close to hers Clare moved head forward + tried to bite me, as self defence + reflex action my right hand slapped her in side of face + told her not to try and bite me. Blood taken +we left the room on, apologised to Dr Tina after but not much more I could do. 105The applicant has always stated that his response in slapping the patient was a reflex action and the respondent conceded that it was an instinctive action. The respondent stated that what happened is not in dispute. What is in dispute is whether its characterised as an aggressive movement or whether its characterised as self defence. 106Prior to the applicant slapping the patient, as described to the Commission he stood in front and partially to one side of the patient, bending over so as he was able to place both hands on the patient's legs near her knees. He therefore had his face bent over near the upright seated patient. Nurse Wall stated that the applicant had the option of swaying his head and torso away from the face of the patient. 107Doctor Kastowsky was asked by the Commission the following questions: Q. Right. In that the lady moved her head forward, the patient moved her head forward, what options did Mr Hargraves have to avoid a clash of heads or a bite or anything that the patient had in mind ? A. He could have leaned backwards or he could have taken a step backwards if he was concerned. Q. In taking a step backwards would he then have released the pressure that was on the patient's knees ? A. Yes, he would have, yes. Q. It would have ? A. Mm. Q. Which may have prevented you from carrying out your procedure ? A. It may have, yes. 108From the description of the positions taken by each of the persons restraining the patient the applicant was in a vulnerable position. He was bent over placing pressure on the legs/knees area of the patient. It would seem that the patient moved her head forward towards the face of the applicant when the needle was being inserted into her arm. Taking into consideration the comments of Doctor Kastowsky as expressed above, I do not think the option of the applicant stepping back to avoid the patient's mouth was available, if the procedure was to continue in a safe manner. If he did step back and released pressure on the patient's knees then she may have sought to kick the Doctor who was in the process of drawing blood. 109In considering the other option of swaying back to avoid the patient's mouth, as expressed by RN Wall, I have considered the period of time the applicant had to take that option and his physical position at that point, in that the applicant had his weight pitched forward in applying downward pressure with his both hands onto the patients knees. It is my finding that the response by the applicant in slapping the patient's face was an instinctive reaction by the applicant. I would not classify it as wilful or premeditated. 110It is also my finding that taking into consideration what I have expressed above, I would categorise his response as being self defensive in the circumstances. It is my finding that the applicant did not assault the patient on that day. I accept the submission that he may have struck the patient with more than minimal force but with an open hand on the one occasion and not with a closed hand. It is my finding that he sought to stop the patient from biting him whilst the doctor was in the midst of drawing blood from the patient's arm. I note the comments of Harrison DP in HREA on behalf of Robert Drinan v Hunter Area Health Service[2002] NSWIRComm270: Within the high standards of conduct required of health care professionals there must be an acceptance that actions in self defence are permissible in a measured and controlled manner. 111Notwithstanding the findings that I have made I do not believe it was the lack of training as submitted by the applicant that he found himself in the position on 7 June 2011. I do accept that from the applicant's experience it was an unfamiliar position that he took up on that day. I note the comments of the Full Bench decision in New South Wales Nurses' Association ( on behalf of Colin Pryor) v South Eastern Sydney and Illawarra Area Service [2007] NSW IR Comm 164 which stated: In our view, nursing staff, teachers, police officers, and prison officers, to give but four examples, do not need a structured training course to educate them not to assault persons in their care or under their control. This should be self-evident and generally not require formal training. and We would observe that there must be a limit upon the capacity of an employee to rely on a failure to be trained in accordance with programs that the employer may or may not have implemented to excuse or explain an inappropriate response, notwithstanding even extreme provocation. The applicant is an experienced security officer who had completed a number of courses both inside and outside the Health system. 112The applicant was summarily dismissed. I note the comments in Nurses Assoc.(Pryor) v South Eastern Sydney..at p68: The long established industrial approach to whether certain conduct justifies summary dismissal was stated by Cook J in Re Dispute - Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371 at 374 in terms that: ... the question of whether the conduct of an employee amounts to misconduct justifying instant dismissal would generally depend upon whether or not the act complained of can properly be regarded as deliberate or wilful or of such a nature as to strike out an essential element in the contract of service, namely, obedience to the lawful commands of the employer and the right of the employer to enforce discipline. ... 113Taking into consideration the findings that I have made, I do not consider the applicant's conduct here could be properly regarded as Cook J observed " of such a nature as to strike out an essential element in the contract of service." 114In summary it is my finding that the termination of the applicant was harsh, unjust and unreasonable. The respondent has placed the applicant's name on the Service Check Register which it was submitted by the applicant would result in him being unlikely to ever be employed in the Public Sector Health industry. As part of his claim he seeks that his name be removed from such register. Reinstatement is the primary remedy available under the Act, following a finding that the applicant had been unfairly dismissed. Submission was made by the respondent of the applicant's attitude of blaming others, not accepting any responsibility for what occurred and stating words to the effect of " nobody got hurt." That last comment has given me some concern with respect to his attitude towards vulnerable patients but I have also noted that he apologised to Doctor Kastowsky for his action. In summary I am of the view that reinstatement of the applicant is not "impracticable" and that he return to work for the respondent in the role of a security officer. Orders 115 In accordance with s89(1) of the Industrial Relations Act, 1996 NSW Health Service Northern Sydney Local Health District is ordered to reinstate Mr Bryan Hargreaves to his former position at Hornsby Hospital, on terms no less favourable than those applicable had he not been dismissed. 116 Pursuant to s89(3) of the Industrial Relations Act, 1996 I order NSW Health Service Northern Sydney Local Health District to pay Mr Bryan Hargreaves an amount of money equal to the ordinary time earnings from the date of his dismissal to the date of his reinstatement to employment less any monies earnt during that period. 117Pursuant to s89(4) of the Industrial Relations Act, 1996 the employment of Mr Bryan Hargreaves shall be regarded as unbroken by the dismissal. 118I also direct NSW Health Service Northern Sydney Local Health District to take what action is necessary to have Mr Hargreaves name removed from the NSW Health Service Check Register 119Matter number IRC 11/1559 is so concluded. 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: 01 June 2012