Industrial Relations Commission New South Wales Medium Neutral Citation: NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 Hearing dates: 5 November 2012 Decision date: 13 November 2012 Jurisdiction: Industrial Relations Commission Before: Boland J, President, Walton J, Vice-President, Bishop C Decision: (1) Leave to appeal is granted. (2) The appeal is upheld to the extent that the Commissioner erred in finding reinstatement was not impracticable. (3) The Commissioner's orders at [115]-[118] of his decision of 1 June 2012 are quashed. (4) The appellant shall pay the respondent 26 weeks' pay at the rate the respondent was receiving at the time of the termination of his employment by the appellant. (5) The stay order made by Boland J, President on 9 August 2012 is dissolved. Catchwords: UNFAIR DISMISSAL - Application by security officer for reinstatement on grounds dismissal was unfair - Application granted at first instance - Dismissal followed incident where security officer slapped patient in an acute specialized psychiatric unit - Held at first instance that slap was an instinctive reaction and self defensive, it was not wilful or premeditated and conduct was not "of such a nature as to strike out an essential element in the contract of service" - APPEAL - Application for leave to appeal and appeal by employer - Whether slapping a patient was contrary to the essential terms of the employment contract - Whether the Commissioner erred by not finding that although the respondent's conduct did not justify instant dismissal his conduct justified dismissal on notice - Whether the Commissioner erred in failing to give proper weight to relevant matters regarding the impracticability of reinstatement - Whether the Commissioner had power to order that the respondent's name be removed from the NSW Health Service Check Register - Leave to appeal granted - Appeal upheld to the extent that the Commissioner erred in finding reinstatement was not impracticable - Appellant to pay the respondent 26 weeks' pay at the rate the respondent was receiving at the time of the termination of his employment by the appellant Legislation Cited: Industrial Relations Act 1996 Cases Cited: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 Austin v NF Importers Pty Ltd [2005] NSWIRComm 353; (2005) 146 IR 113 Autobake Pty Ltd v Budd & Grainger (1986) 19 IR 18 Box Valley Pty Ltd v Price [2000] NSWIRComm 484; (2000) 97 IR 484 Briginshaw v Briginshaw (1938) 60 CLR 336 Budlong v NCR Australia Pty Ltd [2006] NSWIRComm 288 Casari v Sydney South West Area Health Service [2009] NSWIRComm 103; (2009) 185 IR 217 Dismissal of Union Delegates at Homebush Abattoir, Re [1966] AR (NSW) 371 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Hargreaves v NSW Health Services Northern Sydney Local Health District [2012] NSWIRComm 1012 Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 Humphries v Cootamundra Ex-Services and Citizen's Memorial Club [2003] NSWIRComm 211; (2003) 128 IR 37 Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 National Union of Workers, NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388; (2005) 146 IR 441 New South Wales Nurses' Association (on behalf of Prior) v South Eastern Sydney & Illawarra Area Health Service [2007] NSWIRComm 164; (2007) 164 IR 225 Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199; (1994) 57 IR 50 Pastrycooks, Biscuit Makers & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Patterson v Newcrest Mining Limited (Industrial Relations Court of Australia, Full Court, 6 June 1996, unreported, per Wilcox CJ) Perkins v Grace Worldwide Australia Pty Ltd (1997) 72 IR 186 Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 Samad v Public Service Board (NSW) (1983) 5 IR 464 Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73 Category: Principal judgment Parties: NSW Health Services Northern Sydney Local Health District (Appellant) Bryan Hargreaves (Respondent) Representation: Ms K Nomchong SC (Appellant) Mr D O'Sullivan of counsel (Respondent) Bartier Perry, Lawyers (Appellant) Health Services Union NSW (Respondent) File Number(s): IRC 710 of 2012 Decision under appeal Citation: Hargreaves v NSW Health Services Northern Sydney Local Health District [2012] NSWIRComm 1012 Date of Decision: 2012-06-01 00:00:00 Before: Ritchie C File Number(s): IRC 1559 of 2011 DECISION OF THE cOMMISSION 1This matter concerns an application by NSW Health Services Northern Sydney Local Health District for leave to appeal and, if leave is granted, appeal, from a decision of Ritchie C. The learned Commissioner decided that the dismissal from employment by the appellant of Mr Bryan Hargreaves was "harsh, unjust and unreasonable" and that Mr Hargreaves be reinstated "to his former position at Hornsby Hospital, on terms no less favourable than those applicable had he not been dismissed": Hargreaves v NSW Health Services Northern Sydney Local Health District [2012] NSWIRComm 1012. 2Mr Hargreaves, 45 years of age, had been employed as a Security Officer with the appellant since 14 December 2009. He had a background in security work extending back 25 years. His employment was terminated on 14 September 2011. The reason for the termination was that on 7 June 2011 the respondent struck a patient, "CB", whilst a medical procedure was being carried out on the patient. 3The incident occurred in the Mental Health Intensive Care Unit (MHICU) at Hornsby Hospital. MHICU is an acute specialized psychiatric unit with 12 beds that generally admits patients that pose management difficulties in general acute psychiatric units. These difficulties were often due to high levels of aggression, severe psychosis or mood disturbances, and high levels of suicidality. 4It was intended to take a blood sample from CB, a 24 year old female who suffered from severe treatment resistant schizophrenia. The patient had a history of aggression and had assaulted staff and other patients in the past. 5In consultation with nursing staff, Dr Tina Kastowsky decided that in taking the blood sample, and being aware of CB's tendency to be violent, it would be necessary to restrain the patient. It was decided that the patient would be restrained whilst she was in a sitting position, with one security officer holding her right arm, two nurses holding her left arm from which the doctor was going to take the blood, and the respondent holding her legs. 6There was a conflict in the evidence as to what happened next. Mr Hargreaves' evidence as recorded by the Commissioner was as follows: [7] The 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. [8] The 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. [9] The 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. [10] He said that it was a reflex defensive action. He then said to her: " Don't try and bite me." [11] After 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. 7Ritchie C also referred to the evidence of Dr Kastowsky: [56] One 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. [57] She 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." [58] Later 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. [59] She said that she informed Doctor Melondonis of the incident. She was later asked to make a statement. [60] In 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. [61] She 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. 8The Commissioner referred to the evidence of Mr James Wall. He was a Clinical Nurse Specialist grade 2 working in the MHICU at Hornsby Hospital. He had been employed by the appellant since January 2006 and had worked in the MHICU since 2007: [69] During 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. [70] He 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. [72] He 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. [73] The 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. [74] Later 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. [75] Later 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. [76] He said that he was told to make a statement and record it in IIMS, the on line incident recording system. [77] He 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. [78] It was his view that the applicant's actions were not appropriate use of force and seemed more like retaliatory than self-defence. 9In his consideration of the application the Commissioner referred to the allegation made against the respondent. The allegation was that: On 7 June 2011 at approximately 1100am hours at Hornsby Hospital Mr Bryan Hargreaves did breach the 1. NSW Health Policy Directive PD2005_626 Code of Conduct; Subclauses 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 duties. 10The Code of Conduct contained provisions requiring employees (including the respondent): (a) to carry out his job with courtesy and respect for everyone (cl 1.1); (b) to ensure that his actions were appropriate and totally within the area of his authority (cl 1.2); (c) to be responsible for helping create and maintain a public health system that provides safe and high quality health care (cl 1.6); (d) to not act violently (cl 7.2); (e) to take care and co-operate with the Health Service to prevent work related injuries to others (cl 8.2). 11Following a risk assessment, the appellant placed the respondent on special leave with full pay on 10 June 2011 and initiated an investigation into the incident. The investigation involved: (a) providing the respondent with the allegation that he had breached the Code of Conduct; (b) obtaining relevant materials, statements and interviewing witnesses to the incident; (c) interviewing the respondent on 17 June 2011 and giving him an opportunity to advise the appellant as to how the Incident occurred; and (d) considering the material gathered in the investigation. 12On 15 July 2011, the appellant advised the respondent that the investigation had concluded that there was sufficient material to substantiate the allegation of the breach of the Code of Conduct. The respondent was given a copy of the investigation report and provided with the opportunity to respond by 29 July 2011. 13The respondent provided a response. He stated: Dr Kastowsky's professional conduct was questionable; his striking of the patient was "an instinctive defensive response in an attempted physical attack in close proximity by a patient"; there was no intent to injure or harm the patient; the circumstances were out of his control; his actions prevented injury to staff; there was evidence of "political opportunism by the HKH Nurse Management and NSLHD Security Management". 14Later, in early August 2011, the appellant sent a letter to the respondent dealing with: (a) the disciplinary investigation; and (b) another conduct matter in which the respondent had failed to declare secondary shifts. 15The appellant formed the view that the respondent believed his actions to have been appropriate and was not remorseful about the incident and, as such, the respondent posed a significant and continuing risk to patients. 16On 14 September 2011, the appellant terminated the respondent's employment and advised him that his name had been placed on the Security Check Register for NSW Health. 17The letter terminating the respondent's employment 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 reaction 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 the consequences. Given your responses, I remain convinced that your behaviour poses a significant and continuing risk to patients. 18In his consideration, the Commissioner made the following relevant findings: (a) there was no fault with the procedure adopted by Dr Kastowsky on 7 June 2011 including the method of restraint of the patient; (b) the respondent was in a vulnerable position. He was bent over placing pressure on the legs/knees area of the patient; (c) the option of the respondent stepping back to avoid the patient's mouth was not 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; (d) the response by the respondent in slapping the patient's face was an instinctive reaction by the respondent. It was self defensive. It was not wilful or premeditated; (e) the respondent did not assault the patient; (f) the respondent sought to stop the patient from biting him whilst the doctor was in the midst of drawing blood from the patient's arm; (g) it was not the lack of training as submitted by the respondent that he found himself in the position on 7 June 2011; it was an unfamiliar position that he took up on that day. The respondent was an experienced security officer who had completed a number of courses both inside and outside the Health system; (h) the respondent's conduct was not "of such a nature as to strike out an essential element in the contract of service": Re Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371 at 374 per Cook J; (i) the termination of the respondent was harsh, unjust and unreasonable; (j) reinstatement of the respondent was not "impracticable" and that he should return to work for the appellant in the role of a security officer. 19The Commissioner made the following orders and directions: [115] In accordance with s 89(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 s 89(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. [117] Pursuant to s 89(4) of the Industrial Relations Act 1996 the employment of Mr Bryan Hargreaves shall be regarded as unbroken by the dismissal. [118] I 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. Grounds of appeal 20There were eight grounds of appeal. The first five grounds may be conveniently grouped, as the appellant did, as relating to the contention that slapping a patient was contrary to the essential terms of the employment contract. The sixth ground, put in the alternative, was that the Commissioner erred by not finding that although the respondent's conduct did not justify instant dismissal within the meaning of cl 20(ii) of the Health Employees' Conditions of Employment (State) Award, his conduct justified dismissal on notice. 21The seventh ground was that the Commissioner erred in failing to give proper weight to relevant matters regarding the impracticability of reinstatement. The eighth ground was that the Commissioner had no power to order that the respondent's name be removed from the NSW Health Service Check Register. Leave to appeal 22As we observe later in this decision, the key question raised by the appeal is whether the Commissioner made errors of fact or approach in relation to various aspects of his findings. A challenge to findings of fact will face a significant hurdle obtaining leave to appeal: Box Valley Pty Ltd v Price [2000] NSWIRComm 484; (2000) 97 IR 484; Austin v NF Importers Pty Ltd [2005] NSWIRComm 353; (2005) 146 IR 113. However, as it was stated in Humphries v Cootamundra Ex-Services and Citizen's Memorial Club [2003] NSWIRComm 211; (2003) 128 IR 37 at [77]: [77] Secondly, the central issue, which we have been asked to consider, is whether the findings of fact in relation to serious misconduct were wrong. If, as in this matter, there is a substantial basis upon which to conclude that such a contention may be made out, there emerges significant basis for the grant of leave in order to ensure the proper administration of justice. As was said by a Full Bench of this Commission in Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at 326: The extent to which, if at all, those errors be ultimately established is not a matter to be finally determined on the question of leave but only on a full hearing of the appeal. In themselves we are satisfied they raise serious issues to be tested, are reasonably arguable and are of a nature proper to attract leave to appeal. (See also Hollingsworth v Commissioner of Police, New South Wales Police Service (2005) 146 IR 285 at [121] and WorkCover Authority (NSW) (Inspector Moore) v Blacktown City Council (2003) 124 IR 59.) 23There is a serious issue to be tested in the present case regarding the nature of the respondent's conduct in hitting the patient, CB, on 7 June 2011; was it merely reflexive and in self defence as the respondent claimed, or deliberate and retaliatory as the appellant submitted? Depending on the answer to that question, does the further question arise as to whether reinstatement ordered by the Commissioner was impracticable and, if so, what is the answer? 24In that light, we have decided to grant leave to appeal. Case for the appellant 25The appellant's case may be summarised as follows: (a) the respondent's slapping of the patient was inconsistent with the core elements of his duties as a security officer in a mental health facility. As such, the learned Commissioner erred in finding that the respondent's hitting the patient did not strike at an essential element of his employment contract; (b) the respondent had extensive training and was an experienced security officer. Despite this he had slapped the patient when she moved towards him. If it was instinctive, as the learned Commissioner found, the proper conclusion to have drawn was that the respondent was unable to control himself, despite his training and experience, at the very moment when restraint was called for and at the very moment when his training ought to have prevailed. Instead he struck out and used more than minimal force when he slapped the patient; (c) there was a worrying lack of contrition on the respondent's part. The respondent also attempted to excuse his own conduct by blaming others and re-characterising it as an appropriate act that brought the situation under control; (d) there was a clear indication that the respondent did not regard his slapping the patient as serious or wrongful; (e) the Policy of Zero Tolerance Response to Violence was in place to ensure that appropriate action is taken to protect staff, patients and visitors from violent behaviour. The respondent breached this policy by striking the patient, despite his stated knowledge that he was not permitted to hit patients; (f) there was a proper and sufficient basis for the Commissioner to find that the respondent had engaged in misconduct justifying instant dismissal: see cl 20 of the Health Employees' Conditions of Employment (State) Award; (g) in the alternative, the Commissioner erred by not finding that although the respondent's conduct did not justify instant dismissal within the meaning of cl 20(ii) of the Health Employees' Conditions of Employment (State) Award, his conduct justified dismissal on notice; (h) the Commissioner erred in failing to give any weight to the following relevant factors in relation to his finding as to the impracticability of reinstatement: (i) the particular duty of care owed by the appellant to mentally ill patients in its care at Hornsby Hospital because of their vulnerability and the effects of their illness; (ii) the fact that, as a Security Officer, the respondent was likely to be in similar situations to those that prevailed at the time of the incident if he were reinstated; (iii) the Commissioner's finding that the respondent's conduct was not caused by any lack of training and that his actions were "instinctive"; (iv) that if the respondent's action in slapping the patient was truly "instinctive," then it is highly likely that if similarly confronted by a patient, the respondent would instinctively react in the same way and would therefore be an ever present risk to patients the respondent is involved with; (v) that by reinstating the respondent, extra pressure would be placed on the doctors, nurses and other employees involved in patient care who would then, knowing the respondent's inability to control his instinctive reaction, continually supervise the respondent to monitor the potential patient risk of violence afforded by the respondent's presence; (vi) that the appellant has occupational health and safety obligations to protect other employees and vulnerable patients who are present in the workplace, from the risk of injury and that those obligations are impossible to reconcile with the fact that the appellant now knows that the respondent has an "instinctive" propensity to hit patients in defensive situations. The risk assessment conducted by the appellant confirmed that position; (vii) that the appellant, having been put on notice of the respondent's "instinctive" behaviour to hit patients in defensive situations, would also have no defence to any civil action brought by a patient if the respondent reacted in the same way on a future occasion; and/or (viii) that even if further incidents occurred, because of the Commissioner's findings that such conduct had to be intentional or premeditated in order to warrant dismissal, any further incident of "instinctive" violence could not warrant dismissal. (i) the appellant's loss of confidence in the respondent (and the consequent effect on the appellant's OHS and common law duty of care to patients) is a circumstance that should have been taken into account to find the impracticality of reinstating his employment; (j) the appellant is no longer confident that the respondent can carry out his duties in relation to vulnerable patients by using evasive techniques and not acting violently towards them; (k) an order for compensation would be the appropriate remedy rather than reinstatement if the Commission were to find the dismissal was unfair; (l) the Commissioner had no power to order that the respondent's name be removed from the NSW Health Service Check Register: see s 89 of the Industrial Relations Act 1996 ("the Act"). Respondent's case 26The respondent's case may be summarised as follows: (a) Ground (i) was a general ground for which no particulars were provided. Ritchie C considered the evidence before him and the submissions of the parties, including the relevant authorities and determined that the dismissal was harsh, unjust and unreasonable. (b) the next ground was a submission that an instinctive defensive reaction in the form of a slap by a security guard to an attempted assault by a patient constituted a breach of an essential term of the contract of employment warranting summary dismissal, and that the Commissioner erred in not finding so. The appellant in the proceedings at first instance did not include in its case a submission that an instinctive reaction constituted a breach of an essential term of the contract of employment. The primary contention advanced by the appellant was that an instinctive reaction meets the grounds for establishing summary dismissal and relied upon the decision of the Court of Appeal in Samad v Public Service Board (NSW) (1983) 5 IR 464. Ritchie C accepted the principle of Samad in the course of his deliberations. (c) grounds (iii) and (iv) constituted an assertion that Ritchie C failed to give any weight or insufficient weight to a number of findings and matters. The Commissioner did give consideration and attached proper weight to those findings and matters that he was required to, consistent with the submissions of the parties and the relevant authorities; (d) the fifth ground asserted that Ritchie C applied the wrong test in relation to summary dismissals. This was not an issue raised by the appellant at first instance, nor was there any reference to the Health Employees' Conditions of Employment (State) Award at first instance. Further, this was a matter concerning summary dismissal and Ritchie C applied the case of New South Wales Nurses' Association (on behalf of Prior) v South Eastern Sydney & Illawarra Area Health Service [2007] NSWIRComm 164; (2007) 164 IR 225. This was the correct approach and thus there was no error of law of the type propounded by the appellant. (e) in relation to ground (vi) the appellant contended that the Commissioner was required, following a finding that the summary dismissal was unfair, in the absence of any submissions, to then undertake an exercise to determine whether there was another basis for the dismissal which was not unfair for the purposes of the Act. This ground raises issues that were not advanced by the appellant at first instance. Further, in reaching his conclusion Ritchie C applied the appropriate tests and once having determined that the summary dismissal was unfair for the purposes of the Act he was not required to look any further; (f) ground (vii) asserted that the Commissioner fell into error by failing to give any or proper weight to certain matters in determining whether reinstatement was impracticable. The appellant's outline of submissions make it clear that at the heart of this ground, Ritchie C failed to accept that the appellant had lost confidence in the respondent to carry out his duties. The appellant below did not ventilate this submission with any great precision. In such circumstances it was open to the Commissioner to determine that reinstatement was not impracticable; (g) ground (viii) asserted that the Commissioner did not have the jurisdiction to "order" that the appellant remove the respondent's name from the Health Services Check Register. This ground is misconceived, in that no such order was made. There was a direction by Ritchie C that the appellant was to "take whatever action is necessary to have Mr Hargreaves' name removed from the NSW Health Services Check Register." Such an order is within the power available to the Commission pursuant to s 89(5) of the Act. Consideration 27In Prior, the Full Bench observed at [11] that: [I]t is a well established and well known rule of conduct that an assault by an employee of a person under institutional psychiatric care will not be tolerated and that employees who breach this requirement will not be retained in employment. We consider that approach to be correct and applicable in cases such as the present. 28The Full Bench noted however, 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 Union to the employer. The Full Bench referred to the well known authorities of Pastrycooks, Biscuit Makers & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70; Budlong v NCR Australia Pty Ltd [2006] NSWIRComm 288 at [86] - [87] and [100]; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd at [86]; National Union of Workers, NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388; (2005) 146 IR 441 at [35]; Austin v NF Importers Pty Ltd at [16]. 29The Full Bench in Prior further noted at [13] that although the respondent in that case carried 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: Briginshaw v Briginshaw (1938) 60 CLR 336. 30As in Prior (and Samad), the present case involved an incident where the respondent employee struck a patient in psychiatric care. As the respondent was summarily dismissed the appellant had the onus, according to the requisite standard, of establishing what it had alleged justified the summary dismissal, namely, that the respondent deliberately struck a mental health patient with his hand during the course of his duty, thereby breaching the following provisions of the appellant's Code of Conduct: 1.1 Personal and Professional Behaviour; 1.3 Professional Standards; 1.6 Quality Service; 7.2 Violence; 8.1 Occupational Health and Safety; and 8.2 Injury Management. 31Again, as in Prior, the key question raised by the appeal is whether the Commissioner made errors of fact or approach in relation to various aspects of his findings. 32In Prior, of course, the Full Bench found that the Commissioner at first instance had erred in finding that the employee had assaulted the patient because the factual evidence did not support such a finding. In the present appeal, the key question is whether the Commissioner erred in finding that the slap to the side of the face of the patient was an "instinctive reaction" by the respondent in self defence against a threat of being bitten by the patient and which did not "strike out an essential element in the contract of service". If that finding was correct then we do not consider there is any proper basis for this Full Bench to interfere with it, subject to one further consideration: even if the evidence supports the conclusion that the respondent's action was a reflexive and done in self defence, but that the respondent could not guarantee it would not happen again notwithstanding the fact the respondent had been trained to deal with such situations, the question of reinstatement or re-employment becomes an issue. 33On the other hand, if the evidence does not support such a finding and the slap was deliberate, and in retaliation for what the respondent said was the patient's attempt to bite him, then in our opinion, consistent with the view in Prior about such incidents and the Court of Appeal's view in Samad, the appellant was justified in regarding the respondent's conduct as serious and wilful misconduct and in summarily dismissing the respondent. 34Three persons gave evidence as to what occurred on 7 June 2011: the respondent, Dr Kastowsky and Nurse Wall. There were three other persons present, Mr D Edwards, another security officer and two other nurses, Mr S Read and Mr M Campbell. None of those three gave evidence in the proceedings. 35In his statement in the proceedings the respondent said he was aware that CB had a previous history of aggression and unprovoked violence that had resulted in serious assaults on staff. Hs statement continued: With [CB] seated at the side of her bed, Security Officer Dave Edwards sat next to her and held her right arm. Nurses James Wall and Steve Read were on her left hand side and held her left arm. Nurse Mark Campbell was standing in the bedroom doorway. I knelt down and held her legs. Dr Kastowsky then endeavoured to take the blood sample. [CB] became very agitated and began to struggle. She was able to get her arm partially from the hold of Dave Edwards and I momentarily put my hands off her legs and grabbed her arm so that Dave Edwards could re-apply his grip. But when this happened [CB] kicked out at Dr Kastowsky with her right leg. I was then able to put my hands back on her legs above the knees which did take me closer to [CB's] head. [CB] was still very agitated and told me to take my hands off her legs but I maintained my hold and then she suddenly lunged forward towards me and tried to bite me with her mouth wide open. I pulled my head away and with my open palm of my right hand I struck the left side of her face with a low degree of force. It was a reflect [sic] defensive action on my part. I then said to her "Don't try and bite me" Dr Kastowsky finished taking the blood sample and then all six persons then left the room and returned to the Nurses' Station. I spoke to Dr Kastowsky soon after and apologised for what had occurred and said it was a reflex action to defend myself as CB was trying to bite me. 36The cross-examination of the respondent did not produce anything materially different to the respondent's statement. Dr Kastowsky also made a statement that was tendered into evidence. Dr Kastowsky was aware CB had a history of aggression and had assaulted staff and other patients in the past. Dr Kastowsky stated: I thought Bryan Hargreaves was restraining her legs, but CB was able to try and kick me whilst I was preparing to take the blood sample. I kept taking the sample of blood and noted CB to become slightly agitated and move her head and torso slightly forward. I saw Brian Hargreave's open palm of his right hand make contact with CB's face with moderate force making a loud slap sound, and I heard him say "Don't try and bite me". Everyone froze momentarily, and then I kept taking the blood sample. I then left the room while CB was still being restrained as she tends to display aggression towards me after I take blood from her. Afterwards I was in the medication room and said to James Wall, one of the nurses in the room with CB, words to the effect "I can't believe that just happened". A little time later, Bryan Hargreaves came up to me and said "I'm sorry, I shouldn't have done that". He stated it was a reflect (sic) action as CB was trying to bite him. ... I have read Bryan Hargreaves' account of the incident in his statement.... While CB moved her head and torso forward, I would not describe it as "lunged forward toward me and tried to bite me with her mouth wide open". I also disagree it was a low level of force used. In my opinion it was definitely moderate force used. 37Reasonably contemporaneously with the incident Dr Kastowsky made a note of what occurred. The note stated: I was taking a blood sample from [CB] on 07/06/2011 at approximately 11.00 Due to her level of agitation and risk of aggression she required physical restrain by nursing staff and security. [CB] was sitting on the side of the bed. Nurses SR and JW restrained left arm (the arm blood was to be taken from) Security officer D was restraining her right arm Security officer BH was restraining her legs As I was preparing to take the blood [CB] attempted to kick me Security officer BH stepped closer to [CB] in order to further restrain I was concentrating on her arm and the needle but I saw her move her head The next thing I saw was BH's open palm of his right hand make contact with [CB's] face and said "Don't try and bite me" I finished taking the blood samples and exited the room whilst [CB] was still restrained. About ten minutes later BH asked to speak to me in private He apologised for his behaviour and stated it was the wrong thing to have done. Stated it was a reflex action as she was trying to bite him. I spoke with Dr Melidonis regarding the incident that day. 38Nothing materially different emerged from Dr Kastowsky's statements in her cross-examination. 39Mr Wall's statement was in evidence. He stated: In June 2011 we had a patient in MHICU I shall refer to as "CB". She was very unwell and had the potential to be aggressive. It is fair to say she is one of the most challenging patients we have had in my time with MHICU. I had many interactions with her being regularly allocated as her nurse and was well aware of the risks associated with working with her. In fact she had tried to assault me on a couple of occasions. This made me very conscious of safety when interacting with her. On 7 June 2011 Dr Tina Kastowsky discussed with me that she needed to take some bloods from CB. This was the usual discussion that would take place between nursing and clinical staff before any procedure and we discussed how we would safely and effectively do it, the staff we would need, and how best to manage the situation. .... Before we 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 (i.e who would be restraining what limb). Bryan Hargreaves was to restrain CB's legs, and we used a hold we learn as part of our Prevention and Management of Violence and Aggression (PMVA) training to restrain CB Left arm (arm blood was taken from). This hold involved myself and one other nurse holding the arm from which the blood was to be taken out straight with the palm facing up to make access to the vein easier. To do this I was sitting next to CB with the other nurse holding her palm facing up. The other security officer was sitting on the other side of CB and holding the other arm. Bryan Hargreaves's role was to restrain her legs. To do this we used a black cube of foam which was put against her legs so she couldn't kick out. His job was to lean on the foam cube. I don't remember the other security officer having any difficulty with her arm, and I don't remember CB kicking out her legs. I do recall that she lunged forward, although she had her eyes closed and was half asleep. It was not a good attempt at a bite, but rather half-hearted and I do not believe Bryan Hargreaves was at any risk of being bitten. If he really thought he was gong to be bitten Bryan Hargreaves could have swayed head/upper torso slightly back and he would have been at no risk of being bitten. The next thing I remember is hearing a loud slap and seeing his right hand hit CB's face. Everyone immediately looked surprised, including CB. This really worked CB up and after this point she started to struggle. I was worried as the needle was still in her arm at this stage and I focussed my attention on keeping her arm still so the procedure could be finalised. Dr Kastowsky finished the procedure and left, and after ensuring that the sharps had been safely contained and CB had been calmed down, the other staff including myself left the room Afterwards I was till a bit shocked. I was at the Nurses station and spoke to Dr Kastowsky about what had just happened. I said something like "Do you believe what just happened? What should we do about it?" Dr Kastowsky told me she was going to speaker (sic) to her Manager. Bryan Hargreaves also approached me soon after the incident and we had a very brief conversation in words to the following effect: Me"What just happened? Why did you do that?" BH"I shouldn't have done it, I did the wrong thing" Me"You know we can't hit patients" I decided I would also speak to my manager too, but he wasn't there that day so I spoke to him the next day. ... Bryan Hargreaves' actions in my view were not an appropriate use of force and seemed more like retaliatory conduct than self defence. 40On 9 June 2011, Mr Wall made a note of what had occurred: [Patient] CB... was having blood sample taken by Dr TK. CB sitting on side of bed with feet on the ground. Requiring physical restraint due to risk of aggression. Nurses SR & JW restraining (L) arm (arm that blood taken from). Security officer DE restraining other arm. Security officer BH restraining legs. Nurse MC on stand by near door. Whilst Dr TK taking blood CB became agitated. CB attempted to bite BH. BH moved his head back and made contact with CB face with the open palm of his (R) hand. Staff exited after procedure. 41Again, nothing materially different emerged in Mr Wall's cross-examination. 42The Commissioner's summary of the evidence at [99]-[108] of his decision, albeit brief, was, in our opinion, an accurate summary. An appellate tribunal should not interfere with the conclusions on facts by the tribunal at first instance unless it is of the opinion that they were not reasonably open (or were clearly wrong) on the evidence: Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73 at 107; Autobake Pty Ltd v Budd & Grainger (1986) 19 IR 18 at 25; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 178 ff; Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at 153-155; and Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at 59. See also Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 at 378. 43There is no proper basis to reach the conclusion that the Commissioner's findings were not open to him. The respondent's evidence was that the slap was a reflex action taken when the patient lunged towards him with her mouth open as though to bite him. Both Dr Kastowsky and Mr Wall appear to have accepted there was an attempt by the patient to bite the respondent although they differed with the respondent about the energy that went into the lunge by the patient. The respondent was stooped over with his face near the patient. The patient had a history of assault. The respondent was aware of that history. The possibility that the respondent acted reflexively without thinking cannot be discounted. 44The appellant carried the onus of making out its case in a convincing way and it has not done that. There is nothing "glaringly improbable" or contrary to "compelling inferences" in the case (as discussed in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118) that would lead us to the conclusion that the Commissioner erred in his interpretation of the facts. The Commissioner had the advantage of hearing the evidence first hand and having had it demonstrated to him where the individuals were located in relation to each other at the time of the incident. This would have enabled the Commissioner to gain an understanding as to who could have seen what and the actions of each of them, all of which may have had some bearing on the Commissioner's assessment. It was open to the Commissioner to come to the conclusions he did. 45There is no reasonable basis for concluding that a reflexive action taken by the respondent in circumstances where he was fearful he was about to be bitten, provides grounds for summary dismissal because it was serious and wilful or it struck at the heart of the contract or evinced an intention by the respondent that he no longer wished to be bound by the contract. Indeed, the opposite is the case. The ultimate question for the Commissioner to consider was not whether the summary dismissal was lawful (although such a finding may have a bearing on that question). Rather, the Commissioner was required to determine whether the decision was harsh, unjust or unreasonable. In our opinion, the Commissioner was correct in concluding the dismissal was harsh and unreasonable. 46Nothing in this conclusion derogates from the findings of the Full Bench in Casari v Sydney South West Area Health Service [2009] NSWIRComm 103; (2009) 185 IR 217 at [53]-[54] as to the significant duty of care held by the employer towards vulnerable patients, particularly those in mental health care. Our conclusion turns upon the involuntary or reflexive nature of the respondent's action. 47The question, however, remains whether reinstatement was impracticable. We agree with the appellant that it is difficult to discern the basis on which the Commissioner came to the view that reinstatement was not impracticable. It appears to flow from the fact that the respondent apologised to the doctor and, therefore, he had demonstrated remorse. In relation to reinstatement as a remedy, Ritchie C stated at [114]: [114] ... 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. 48The appellant contended reinstatement was impracticable. In that respect it was submitted: The learned Commissioner erred in failing to give any weight to the following relevant factors in relation to his finding as to the impracticability of reinstatement: (a) the particular duty of care owed by the Appellant to mentally ill patients in its care at Hornsby Hospital because of their vulnerability and the effects of their illness; (b) the fact that, as a Security Officer, the Respondent was likely to be in similar situations to those that prevailed at the time of the Incident if he were re-instated; (c) the learned Commissioner's finding that the Respondent's conduct was not caused by any lack of training and that his actions were "instinctive"; (d) that if the Respondent's action in slapping the patient was truly "instinctive," then it is highly likely that if similarly confronted by a patient, the Respondent would instinctively react in the same way and would therefore be an ever present risk to patients the Respondent is involved with; (e) that by reinstating the Respondent, extra pressure would be placed on the doctors, nurses and other employees involved in patient care who would then, knowing the Respondent's inability to control his instinctive reaction, continually supervise the Respondent to monitor the potential patient risk of violence afforded by the Respondent's presence; (f) that the Appellant has occupational health and safety obligations to protect other employees and vulnerable patients who are present in the workplace, from the risk of injury and that those obligations are impossible to reconcile with the fact that the Appellant now knows that the Respondent has an "instinctive" propensity to hit patients in defensive situations. The risk assessment conducted by the Appellant confirmed that position; (g) that the Appellant, having been put on notice of the Respondent's "instinctive" behaviour to hit patients in defensive situations, would also have no defence to any civil action brought by a patient if the Respondent reacted in the same way on a future occasion; and/or (h) that even if further incidents occurred, because of his own findings that such conduct had to be intentional or premeditated in order to warrant dismissal, any further incident of "instinctive" violence could not warrant dismissal. 49In considering the question of the impracticability of reinstatement the Commission will have regard to all the relevant circumstances of the case relating to the employer and the employee (Budlong v NCR Australia Pty Limited) and to evaluate the practicability of a reinstatement order in a common sense way: Patterson v Newcrest Mining Limited (Industrial Relations Court of Australia, Full Court, 6 June 1996, unreported, per Wilcox CJ). See also Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199; (1994) 57 IR 50 at 210. 50Trust and confidence is a necessary ingredient in any employment relationship: Perkins v Grace Worldwide Australia Pty Ltd (1997) 72 IR 186 at 190. In Perkins (which was followed by the Full Bench in Budlong) it was also stated: It is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee. Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. ... What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. (emphasis added) 51The appellant submitted it had lost trust and confidence in the employee. We consider there is a reasonable basis for that being so. As the appellant submitted, it owes a duty of care to mentally ill patients in its care because of their vulnerability and the effects of their illness. It is not unheard of for such patients to act aggressively and to provoke anger and frustration in staff. Staff must exercise particular care and restraint to avoid being provoked to the point where they act violently towards patients. 52The Commissioner found that the respondent's action in slapping the patient on 7 June 2011 was not due to any lack of training. In his letter to the respondent dated 14 September 2011, Mr James Brown, Director Corporate Support for the respondent, 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. ... Overall, your responses are defensive, blaming of others and reflect no serious attempt to accept ownership of your actions or the consequences. Given your responses, I remain convinced that your behaviour poses a significant and continuing risk to patients. 53As well as demonstrating the loss of trust and confidence by the appellant in the respondent, Mr Brown's letter indicates that the respondent could not assure the appellant, despite having adequate training, that what happened on 7 June 2011, would not happen again. The respondent has not otherwise given any undertaking there would be no repeat of his impugned conduct. 54In dismissing the respondent it is apparent the appellant had a view that the conduct of the respondent in slapping the patient was not "defensive", but rather it was "aggressive". This is evident from the letter terminating the respondent's employment. Presumably, it was this view of the respondent's conduct that led the appellant to form the opinion that the respondent's "behaviour poses a significant and continuing risk to patients" and why, therefore, reinstatement was impracticable. 55However, we refer to an earlier letter from Mr Brown to the respondent (early August 2011) in which the respondent was advised that Mr Brown proposed to recommend termination of the respondent's employment. In that letter Mr Brown indicated that one of the reasons why he intended recommending termination of employment was that even if the respondent's conduct in slapping the face of the patient was a "reflex action" and the respondent was unable to control his actions, given the respondent was trained and experienced, Mr Brown doubted that: [A]ny amount of further training would be of assistance to prevent [the respondent] from striking another patient if [the respondent] were faced with the same situation in future. 56Even though the striking of the patient was reflexive and defensive, it is apparent that the appellant has lost confidence in the respondent to act appropriately in the future. In the circumstances, we have concluded reinstatement is impracticable. The appellant believes the respondent cannot be relied upon in what is sometimes a provocative environment that requires the utmost sensitivity and restraint on the part of those charged with the care of patients. There is a reasonable basis for that belief. We are satisfied the respondent's reinstatement could impair the appellant's duty of care to its patients. 57We have considered the option of re-employment, but, in this case, we face the same difficulties in providing that as a remedy as we do with reinstatement. Accordingly, we have decided compensation is the appropriate remedy. 58In considering the amount of compensation to be awarded we note that the respondent's name has been placed on the "Service Check Register". We were informed that the entry of the respondent's name on the Register, which indicated he had been dismissed, "would probably prohibit future employment with other Local Health Districts". 59In exchanges with senior counsel in the course of proceedings we were advised that even if the Full Bench held that the Commissioner did not err in finding the dismissal of the respondent was harsh and unreasonable, but that the Full Bench upheld the second limb of the appellant's case and found reinstatement was impracticable, the respondent's name would remain on the Register. 60In those circumstances the respondent's opportunities of finding employment in the public health sector, where he has been working since 2009, will be severely curtailed. The respondent is 45 years of age. He is currently unemployed. Those factors, when considered in the light of our overall findings in the matter, warrant an order that the appellant should pay to the respondent 26 weeks' pay. Orders 61The Full Bench makes the following orders: (1) Leave to appeal is granted. (2) The appeal is upheld to the extent that the Commissioner erred in finding reinstatement was not impracticable. (3) The Commissioner's orders at [115]-[118] of his decision of 1 June 2012 are quashed. (4) The appellant shall pay the respondent 26 weeks' pay at the rate the respondent was receiving at the time of the termination of his employment by the appellant. (5) The stay order made by Boland J, President on 9 August 2012 is dissolved. ********** 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: 13 November 2012