Industrial Relations Commission New South Wales Medium Neutral Citation: Fire Brigade Employees' Union of New South Wales (on behalf of Brendan O'Donnell) and Fire & Rescue NSW [2013] NSWIRComm 57 Hearing dates: 12 June 2013 Decision date: 05 July 2013 Before: Boland J, President, Staff J, Backman J Decision: (1) Leave to appeal is granted. (2) To the extent determined in this decision, the appeal is upheld. (3) The matter is remitted to Tabbaa C to be disposed of in accordance with this decision and as expeditiously as practicable. Catchwords: UNFAIR DISMISSAL - Application by Firefighter for reinstatement on ground that dismissal was unfair - Dismissal followed incident at work where appellant assaulted fellow employee - Appellant summarily dismissed - Application under s 84 of Industrial Relations Act 1996 dismissed at first instance - APPEAL - Application for leave to appeal and appeal by employee - Appeal upheld - Finding that dismissal was harsh - Issue of mental illness not taken into account at first instance as a mitigating factor - Reinstatement impracticable - Matter remitted to Commissioner to deal with under s 89(2). Legislation Cited: Crimes Act 1900 Industrial Relations Act 1996 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Ltd & Anor (2005) 146 IR 113 Bradley Smith v Commissioner of Police (No. 4) [2010] NSWIRComm 14 Casari v Sydney South West Health Service [2009] NSWIRComm 103; (2009) 185 IR 217 Commissioner of Police v Ross [2012] NSWIRComm 17 Commissioner of Police v Smith [2010] NSWIRComm 162 Murray Irrigation Ltd v Balsdon [2006] NSWCA 253; (2006) 67 NSWLR 73 New South Wales Department of Education & Training v New South Wales Teachers Federation (on behalf of Mossfield) [2006] NSWIRComm 210; (2006) 155 IR 257 New South Wales Fire Brigade Employees Union of New South Wales (on behalf of Brenden [sic] O'Donnell) and Fire & Rescue NSW [2013] NSWIRComm 1004 Peter Rochester Gow v Cronulla Sutherland Leagues Club Ltd [2002] NSWIRComm 247; (2002) 119 IR 122 Port Macquarie Golf Club Ltd v Stead and another (1996) 64 IR 53 Re Dispute; Re Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 Wells and Commissioner of Police [2000] NSWIRComm 157; (2000) 100 IR 106 Category: Principal judgment Parties: Fire Brigade Employees' Union of New South Wales (on behalf of Brendan O'Donnell) (Appellant) Fire & Rescue NSW (Respondent) Representation: Mr J H Pearce of counsel (Appellant) Mr M J Easton of counsel (Respondent) File Number(s): IRC 128 of 2013 Decision under appeal Citation: New South Wales Fire Brigade Employees' Union (on behalf of Brenden [sic] O'Donnell) and Fire and Rescue NSW [2013] NSWIRComm 1004 Date of Decision: 2013-01-31 00:00:00 Before: Tabbaa C File Number(s): IRC 1777 of 2011 DECISION OF THE COMMISSION 1This decision concerns an application for leave to appeal and, if leave is granted, appeal by the Fire Brigade Employees' Union of New South Wales ("FBEU") on behalf of a member of that organisation, Brendan O'Donnell, from a decision of Tabbaa C. The Commissioner had considered an application under s 84 of the Industrial Relations Act 1996 for the reinstatement of Mr O'Donnell on the ground that his dismissal from employment with Fire & Rescue NSW ("the respondent") was harsh, unreasonable or unjust. Tabbaa C refused the application: New South Wales Fire Brigade Employees' Union of New South Wales (on behalf of Brenden [sic] O'Donnell) and Fire & Rescue NSW [2013] NSWIRComm 1004. Background 2Mr O'Donnell was employed as a firefighter stationed at the Alexandria Communications Centre. He had been a firefighter since 27 March 1987 until his dismissal on 7 November 2011. The incident that led to the termination of Mr O'Donnell's employment with the respondent occurred on the evening of 6 July 2011. 3A number of firefighters had gathered in the mess room to have their evening meal and they included Mr O'Donnell, Daryl Muzyczka, Scott Lynch, Darren Pearson and Pavel Novotny. Mr O'Donnell was eating a meal he had cooked and was asked by Mr Muzyczka why he was not having pizza. During the previous shift Mr Novotny had offered to cook pizzas for the shift crew and was in the process of doing so when Mr Muzyczka asked his question of Mr O'Donnell. The question triggered an exchange between Mr O'Donnell and Mr Novotny, which by all accounts did not involve voices being raised and there were no obvious displays of anger between the two men. Mr Lynch described the exchange as "playful banter". Mr Muzyczka described it as "quite jovial, with no malice from either side" and that "[t]here were no threats exchanged, no swearing and no derogatory comments". 4It appears that despite the absence of any outward signs of hostility, Mr O'Donnell felt he was being taunted by Mr Novotny and to the surprise of those in the mess room he walked over to where Mr Novotny was cooking and shoved him in the back. Mr Novotny's face hit a cupboard and he suffered damage to his teeth, an injury to his jaw and lacerations on his chin. He was also diagnosed as suffering an "acute stress reaction" as a result of the assault. Mr Novotny sought workers compensation. The cost of the treatment for Mr Novotny's injuries was $7,483 (mainly repairs to teeth) and as a consequence of what occurred, Mr Novotny was off work for a total of 16 shifts. 5Mr Novotny immediately complained to his supervisor that Mr O'Donnell had assaulted him and the police were contacted. On 14 July 2011, Mr O'Donnell was charged under the Crimes Act 1900 with assault occasioning actual bodily harm. 6Mr O'Donnell was also charged by the respondent on 5 August 2011, that he had contravened cl 15(1) and cl 18 (1)(h) of Part 3 of the Fire Brigades Regulation 2008 ("the Regulation"). Those provisions are in the following terms: 15 Firefighters to acquire and maintain knowledge of legislation, orders and functions (1) A firefighter must acquire and maintain a thorough knowledge of, and must comply with the requirements of, the Act, this Regulation and the Commissioner's Orders. ... 18 Unacceptable behaviour (1) A firefighter must not: ... (h) while on duty, by words or action, harass, intimidate or threaten another firefighter, ... 7On 18 August 2011, the FBEU advised the respondent, on a without prejudice basis, that Mr O'Donnell pleaded guilty to the charge of misconduct and recognised that his conduct had been highly inappropriate. The FBEU advised that Mr O'Donnell wished the following matters to be taken into account in mitigation of his conduct: (a) His conduct was neither systematic, nor ongoing and occurred only once; (b) He regretted his impulsive and inappropriate actions. He acknowledged it was unacceptable for anyone, let along someone of his rank and seniority; (c) He acknowledged the effect his actions had on SF Novotny and, for that, he accepted, full responsibility; (d) He had been experiencing considerable stress and had acted out of character in that instance; (e) On the advice provided to him immediately after the incident by the Respondent's Chaplain, Major Lyndsay Smith, he had sought professional assistance from a qualified counsellor; and (f) He was sincerely contrite for his actions, apologised unreservedly for those actions and had provided a written apology to SF Novotny. 8Nothing was said by the FBEU (or by Mr O'Donnell) in its communications with the respondent about any health issues, including mental health, that may have been affecting Mr O'Donnell either before, during or after 6 July 2011. 9On 8 July, 15 August, 2 September, 21 September and 8 November 2011 Mr O'Donnell consulted his general practitioner, Dr Richard Ng. Dr Ng referred Mr O'Donnell to a consultant psychiatrist, Dr Prem Naidoo, who saw Mr O'Donnell on 12, 19 and 27 October 2011. 10On 17 August 2011 Mr O'Donnell forwarded a letter of apology to Mr Novotny on in the following terms: I am tendering this letter as an open letter of apology to you.. I am apologising for my treatment of you on the evening of the 6th July at our place of work. Suffice to say my actions were completely unacceptable and I deeply regret any physical harm I caused you. The regard that each member of the NSW Fire and Rescue has always been very high and I hope my actions have not in any way detracted from your opinion of our great organisation and the generally high level of camaraderie that exists in it. 11 On the same day, 17 August, and on 23 and 30 August, 13, 26, 29 September and 4, 12 October 2011 Mr O'Donnell consulted a psychologist, Dr Fiona Murray. 12On 9 September 2011, the respondent suspended Mr O'Donnell's employment. The FBEU responded on the same day on behalf of the applicant, indicating that there was nothing more to offer on the issue of Mr O'Donnell's suspension beyond what had already been put to the respondent in the 18 August 2011 correspondence. 13Tabbaa C noted in her decision at [15] that on 12 September 2011, the Acting Commissioner of the respondent had written to Mr O'Donnell advising that he had reviewed all documentation in relation to the charge against Mr O'Donnell and the submissions made on his behalf by the FBEU, including the mitigation factors. The Acting Commissioner advised that he had considered all the options available to him pursuant to cl 46(1) of the Regulation in relation to how he could deal with the matter and that he was considering the option of terminating his employment. Mr O'Donnell was advised of the matters that the respondent intended to have regard to in deciding what action to take against him, including any previous breaches of discipline. Mr O'Donnell was invited to provide any material he wished him to take into account within 10 calendar days. 14Clause 46(1) of the Regulation provides: 46 Disciplinary action by Commissioner (1) The Commissioner, after considering a report in which a firefighter is found guilty of misconduct and any submission made by or on behalf of the firefighter, may deal with the matter in any one or more of the following ways: (a) by taking remedial action against the firefighter, (b) by giving the firefighter a caution or reprimand, (c) by imposing on the firefighter a fine not exceeding 10 penalty units, (d) by revoking the firefighter's appointment to a position, (e) by demoting the firefighter, (f) by terminating the employment or service of the firefighter. 15Dr Ng, Mr O'Donnell's general practitioner, said that on 21 September 2011 Mr O'Donnell presented with acute psychological stress. Consequently, Dr Ng referred Mr O'Donnell urgently to the local Mental Health Crisis team, but he did not require hospital admission. Dr Ng saw Mr O'Donnell again on 30 September 2011, on which occasion he said Mr O'Donnell "had improved significantly". He gave him medical leave from work to 28 October 2011. Mr O'Donnell faxed the certificate to the Senior Investigator Workplace Standards, Lisa Ridout. The certificate related to a medical condition he had been diagnosed with shortly after the altercation with Mr Novotny. The certificate stated that Mr O'Donnell was suffering from post-traumatic stress disorder and depression at 8 July 2011, identifying the cause as "critical incidents attended in 2004". 16On 27 October 2011, Mr O'Donnell submitted a workers compensation claim and filed an initial WorkCover Medical Certificate alleging post traumatic stress disorder and depression (both dated 21 October 2011) in relation to psychological injuries he had sustained as a firefighter. That claim was provisionally declined on 7 November 2011. The insurer has since confirmed that decision. 17In a report dated 31 October 2011, Dr Naidoo diagnosed Mr O'Donnell with "Major Depressive Disorder with a significant anxiety component" and "symptoms of Post Traumatic Stress". Dr Naidoo noted alcohol abuse by Mr O'Donnell, but said that he had "stopped drinking completely two months ago". 18Dr Naidoo's report seems to have been directed to supporting an application in relation to the criminal charge laid against Mr O'Donnell. In that respect, Dr Naidoo stated: I understand that he may well satisfy criteria for being dealt with under section 32 of the Mental Health (forensic provisions - sic) Act 1990 in that he does suffer from a mental illness or mental condition for which treatment is available in a mental health facility namely Major Depressive Disorder with anxiety and symptoms of Post Traumatic Stress. He is not a mentally ill person in the context of that act. 19On 4 November 2011, Dr Naidoo supplemented his earlier report, stating that: The patient was suffering the psychiatric disorder as noted in my report of 31 October 2011 at the time of the offence. He would have, by the nature of his illness, been vulnerable to stressors at the time. His raised anxiety levels would have been a significant source of this vulnerability and his frustration tolerance levels would have been signifcantly compromised by his illness. 20As Tabbaa C noted in her decision at [25], the respondent's Commissioner, Mr G Mullins, wrote to Mr O'Donnell on 7 November 2011 noting all the correspondence received from the FBEU on his behalf. The Commissioner advised that, in arriving at his decision, he had not taken into account the criminal proceedings as they had not been concluded and he had not taken into account his previous breaches of discipline as no action had been taken in relation to those. Nevertheless, he had taken into account the nature and circumstances of the assault on Mr Novotny in arriving at his decision to terminate the applicant's employment effective from 7 November 2011. The Commissioner stated: ... I am satisfied that the attack from behind on Senior Firefighter Novotny, which resulted in injury to him, was unprovoked. There can be no circumstances in the workplace where any violence, and particularly that which results in injury, can be regarded as acceptable. Our employees should have the confidence that their workplace is free of violence, fear or intimidation. Our community has a right to expect that Firefighters will conduct themselves in a professional and respectful manner at all times and uphold the reputation of Fire & Rescue NSW. You are a qualified and experienced firefighter who should be well versed in the professional behaviour expectations of Fire & Rescue NSW. Your actions on this occasion resulted in the injury of a fellow Firefigher and failed to uphold the proud reputation of Fire & Rescue NSW. I can no longer have the trust or confidence that you will conduct yourself in an acceptable and professional manner in the future. 21On 8 November 2011, the criminal charge against Mr O'Donnell was dismissed in the Local Court pursuant to s 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990 subject to two conditions: first, that Mr O'Donnell take prescribed medication, attend counselling/treatment in accordance with his psychiatrist's recommendation; and secondly, that he adhered to the treatment plan outlined in the psychiatrist's report. 22Also on 8 November 2011, Dr Ng provided a report to the respondent's workers compensation insurer. He recited the history of Mr O'Donnell's consultations and described symptoms consistent with depression and post traumatic stress. Dr Ng referred to incidents in which Mr O'Donnell had been involved in in 2004 that may have caused the post traumatic stress symptoms. Dr Ng said he believed Mr O'Donnell's depressive symptoms contributed to him pushing his colleague at work and that being charged with assault acted as an additional stressor that further exacerbated his depression. Further, that the incident on 6 July 2011 was "likely to have been triggered by Mr O'Donnell's depression which resulted in poor anger management and impulse control." Dr Ng opined that "Mr O'Donnell has a reasonable to good likelihood of returning to his pre-injury duties, and tentatively estimate the timeframe to be 3-6 months." 23On 22 November 2011, an application was lodged pursuant to s 84 of the Act on behalf of Mr O'Donnell seeking relief from unfair dismissal. 24On 21 February 2012, Dr Naidoo provided a further report to "Whom it May Concern". In the report Dr Naidoo confirmed his earlier diagnosis. He further stated: There seems little doubt that his Post Traumatic Stress Disorder has been signifcantly involved in his overall presentation. One would have to conclude therefore that his psychiatric symptoms did compromise his position and lead him to be vulnerable leading to the event where he pushed his colleague. 25Dr Naidoo opined that Mr O'Donnell had responded well to treatment and was optimistic about his prognosis, although he fell short of providing an absolute guarantee there would be no relapse. 26At the request of the respondent's solicitors, Associate Professor Robert Kaplan, forensic psychiatrist, reviewed Mr O'Donnell on 13 December 2011, in the context of contested workers compensation proceedings. Professor Kaplan gave evidence in the proceedings. Tabbaa C dealt with Dr Kaplan's evidence at [92]-[95]: [92] Associate Professor Kaplan commented on the various stages of the interview with the Applicant: Mr O'Donnell provided him with a trauma list in response to his question as to why he had filed a worker's compensation claim for Post Traumatic Stress Disorder (PTSD). The Applicant advised that he was still affected by those incidents. Associate Professor Kaplan commented that the Applicant's "account of PTSD symptoms is mechanical and stereotyped" and is "based on the misconception that exposure to a number of traumatic events per se will automatically lead to PTSD". The Associate Professor found that "all of his problems can be attributed to other difficulties such as abuse of alcohol and depression". Mr O'Donnell attributed his good progress to a number of things which mainly involved his absence from the stresses of the Centre and not having to take 000 calls. Associate Professor Kaplan commented that: These statements tend to undermine his claim that his problem is due to traumatic events seven years ago. [93] Mr O'Donnell told him that he started drinking when he joined the Service and was bingeing at least four times a week leading to aggression, relationship difficulties and disciplinary issues which he did not detail. He stated that he had several low range DUI offences over the years and frequently had fights with colleagues which he did not detail although he mentioned that they mainly occurred when they were playing cards. Associate Professor Kaplan noted that Mr O'Donnell "comes from a family background of depression and alcoholism, two factors which make him predisposed to drinking problems". [94] In conclusion, Associate Professor Kaplan found that the Applicant had Major Depressive Disorder and Alcohol Abuse Disorder both of which were in remission and neither of which was attributable to his work nor was his work a substantial contributing factor to his condition. [95] In response to questions as to any restrictions he would place on the Applicant's current fitness for work from a psychological perspective, Associate Profession Kaplan replied, on 24 January 2012 that, firstly, at the time of the assault on SF Novotny, the Applicant's actions were not prompted in any way by a work-related psychological injury. Secondly, he could not discount the possibility of a relapse in future noting the history of his alcohol abuse; and thirdly, the same would apply to his depression although the possibility of that affecting his work was lower. It was considered that it would be reasonable for him to work provided he is under the care of a psychiatrist for two years after resumption at work. First instance decision 27After addressing the background, evidence and submissions of the parties, Tabbaa C considered the merits of the application. The Commissioner stated that the facts relating to the assault were, in the main, not in dispute. Tabbaa C considered the following evidence was "a cause for concern": The Applicant has described the banter as "a niggle" which I consider to be synonymous to grumbling. The other team members present in the mess room and who witnessed the incident were taken by surprise by the Applicant's reaction as the banter was of no great consequence. The evidence of Mr Muzyczka was very convincing. He described the banter as "light hearted exchanges", "normal stirring", "quite jovial with no malice from either side". Mr Lynch, the Applicant's own witness, described it as "playful banter". The Applicant provided his own definition of the banter: [counsel for Mr O'Donnell]: Do you recall what happened then? A: I do. I believe at that stage Pav [Mr Novotny] may have entered the argument at that point or the discussion I should say, it wasn't an argument, it was a discussion, .... The Applicant admitted that his anger was aimed at senior management. There was no evidence before the Commission that the Applicant had lodged any grievances regarding any matter directly with management or through his union. Mr Novotny had not initiated the banter - It was Muzyczka who had teased SF O'Donnell about not being a team player and it was only when SF O'Donnell complained that he did not know about the pizza night that SF Novotny pointed out that he had made a general announcement the night before. It does not matter much whether the Applicant heard the announcement or not, he is yeast intolerant and could not participate in any event. SF Novotny already knew that so he would not have deliberately excluded the Applicant from the announcement. It was SF O'Donnell who had made a big deal out of it on 6 July 2011. The other team members gave evidence to the effect that both they and SF Novotny had been taken completely by surprise, hence the extent of his injuries which were considerable. They all thought that the Applicant was going to the kitchen to get himself a slice of pizza. SF O'Donnell had used both hands to push SF Novotny in the back throwing him forward against the kitchen cupboard. I prefer the account provided by Mr Muzyczka as more credible evidence of the incident. If the Applicant had turned around and returned to his seat there would have been no need for the [sic] Mr Muzyczka to push himself between them to stop the incident escalating. His evidence was to the effect that SF O'Donnell approached SF Novotny in an aggressive manner and stood facing him, toe to toe, resulting in both men being approximately 30 cm apart. SF Novotny had not retaliated at any time. I find that the Applicant's action had been wilful and deliberate. According to Mr Myzyczka, SF O'Donnell approached SF Novotny again but no other witnesses confirmed that, including the Applicant and SF Novotny. I find it astonishing that, despite the assault on, and despite the injuries caused to, SF Novotny, the Applicant returned to the dinner table and finished his meal. It is also astonishing that, the very next day, SF O'Donnell would walk through the Communications Room prepared to hand over a copy of his report to anyone who was interested "in the truth". I do not accept that the Applicant demonstrated significant contrition for his actions on 6 July 2011. There was no sign of contrition, no sign of remorse. The incident occurred on 6 July 2011. The criminal charge was due to be heard in the local court on 23 August 2011. On 18 August 2011, the Applicant wrote to SF Novotny apologising for his unacceptable conduct. I do not believe that the Applicant offered a timely apology in relation to this assault. One can be forgiven for believing that the apology lacked sincerity and was intended to assist the Applicant in mitigation submissions before the local court. 28Commissioner Tabbaa made the following further findings: (a) by implication, that the COPS narrative showed that Mr O'Donnell was attempting to move around Mr Muzyczka to get closer to Mr Novotny and shouting "Come on, I've had enough of you"; (b) the respondent had zero tolerance for conduct of the nature engaged in by Mr O'Donnell; (c) Mr O'Donnell's actions were not prompted in any way by a work-related psychological injury. Dr Kaplan could not discount the possibility of a relapse in future given the history of Mr O'Donnell; (d) there was evidence from other team members to indicate their concerns about having to work with Mr O'Donnell again; (e) the respondent thoroughly investigated the incident and afforded Mr O'Donnell natural justice and procedural fairness in allowing a number of opportunities for him to mitigate his actions. The Commissioner [of the respondent] accepted the FBEU's submissions on behalf of Mr O'Donnell and took into account only those matters the FBEU wished for the Commissioner to rely on; and (f) the matters which Mr O'Donnell had sought to put before the Commission were not available to the respondent at the time the dismissal decision was made and therefore, the decision to terminate Mr O'Donnell was neither harsh, unreasonable nor unfair as he had been afforded natural justice and procedural fairness and dealt with in accordance with the evidence available to the respondent. 29In relation to this last matter, it appears to relate to evidence of Mr O'Donnell's illness. What the Commissioner appears to have been referring to was that the respondent was not aware that Mr O'Donnell was allegedly suffering from post-traumatic stress disorder and depression at the time of the incident and, therefore, could not have taken this into account. Consequently, according to the Commissioner, the decision to terminate Mr O'Donnell's employment was "neither harsh, unreasonable nor unfair". Grounds of appeal 30Mr O'Donnell's grounds of appeal were in the following terms: (a) The Commissioner erred by failing to take into account or have regard to or give any weight to the following matters in the exercise of her discretion in finding that the termination of the Appellant was not harsh: (i) The fact of the Appellant's mental illness, namely major depressive disorder with significant anxiety component, at the time of the impugned conduct; (ii) The unchallenged medical evidence (tendered by the Appellant and the Respondent) supporting the fact of the Appellant's mental illness, namely major depressive disorder with significant anxiety component, at the time of the impugned conduct; (iii) The fact that Appellant's mental illness at the time of the impugned conduct contributed to the impugned conduct, in a material way and therefore the Appellant's moral culpability for the conduct was be reduced and this reason dismissal may not be warranted when it might otherwise be appropriate. (iv) The unchallenged medical evidence (tendered by both the Appellant and the Respondent) supporting the fact that Appellant's mental illness at the time of the impugned conduct contributed to the impugned conduct in a material way and therefore the Appellant's moral culpability for the conduct was reduced and for this reason dismissal may not be warranted when it might otherwise be appropriate. (v) The fact of the Appellant's illness at the time of the termination; (vi) All of the circumstance surrounding the impugned conduct including the historical relationship between the individuals concerned; (vi)(sic)All of the circumstances surrounding the impugned conduct including the fact that the Appellant was provoked and/or genuinely felt that he had been provoked; (vii)(sic)The fact that the Applicant was fit for work at the time of the hearing and there was and is no likelihood of relapse; (viii)(sic)The unchallenged medical evidence (tendered by both Appellant and the Respondent) supporting The fact that the Applicant was fit for work at the time of the hearing and there is no the likelihood of relapse. (b) The Commissioner erred by failing to take into account or have regard to or give any weight (in the exercise of her discretion in finding that the termination of the appellant was not harsh, unjust or unfair) to the fact that, as the termination was a summary dismissal for misconduct, the appropriate test for misconduct justifying instant dismissal was whether the impugned conduct was deliberate, wilful, and of such a nature as to strike at an essential element of the contract of service and in these circumstances that the question of whether the impugned conduct was willful and deliberate focused attention on the Appellant's state of mind at the time of the conduct and his mental illness. (c) The Commissioner erred by failing to take into account in her findings or have regard to or give any weight (in the exercise of her discretion in finding that the termination of the Appellant was not harsh, unjust or unfair) to the fact that where the Respondent alleged the existence of cause justifying termination of employment, the Respondent must prove the misconduct which is alleged including the requisite state of mind of the Appellant particularly having regard to the Appellant's mental illness. (d) The Commissioner erred by failing to find that the Respondent had proved that the Appellant's conduct was deliberate and willful having regard to the Appellant's state of mind, of the particularly the Appellant's mental illness, at the time of the impugned conduct. (e) The Commissioner erred by failing to find (in the exercise of her discretion in finding that the termination of the Appellant was not harsh, unjust or unfair) that the impugned conduct was not willful and deliberate having regard to the Appellant's state of mind at the time of the conduct and his mental illness. (f) The Commissioner erred by failing to take into account in her findings or have regard to or give any weight (in the exercise of her discretion in finding that the termination of the Appellant was not harsh, unjust or unfair) to the fact that the Decision maker (Mullins) indicated that many important matters had not been considered by the Respondent in the original decision or thereafter in considering the present application. (f) [sic] The Commissioner erred by failing in the exercise of her discretion (in finding that the termination of the Appellant was not harsh, unfair and unjust) to take into account or have regard to or give any weight to the fact that the finalisation of disciplinary proceedings and termination of the employment of an Appellant prior to the conclusion of concurrent criminal proceedings was in the circumstances, and in its own right, harsh, unfair and unjust. (g) The Commissioner failed to provide adequate reasons for decision in determining that that the decision to terminate the Appellant was neither harsh, unjust or unreasonable by failing to consider in her reasons for decision the matters raised in grounds (a) to (f) above. (h) The Commissioner erred in the exercise of her discretion (in finding that the termination of the Appellant was not harsh, unfair and unjust) because the evidence placed before the Commissioner was "not available" to the Respondent at the time of making the decision to terminate and was, therefore, apparently not available to be considered by the Commission in making its decision as to whether the termination of employment was harsh, unfair or unjust. (i) The Commissioner erred in the exercise of her discretion (in finding that the termination of the Appellant was not harsh, unfair and unjust) by making the following findings which were not available on the facts: (i) that Dr Kaplan could not discount the possibility of a relapse in the Appellant's condition in the future; (ii) that the Respondent had thoroughly investigated the impugned conduct and afforded the Appellant natural justice, particularly having regard to the evidence of the decision maker that he had no regard to: (iii)[sic] Evidence of the Appellant's illness of major depressive disorder with significant anxiety component; (iv)[sic] Evidence that the Applicant's illness was a contributing factor to the impugned conduct; (v)[sic] Evidence of the circumstances surrounding the impugned conduct indicating that the Applicant was provoked; and (vi)[sic] Evidence of the relationship between the Appellant & the other individual had been unsatisfactory for a significant period of time and there was mutual antipathy and/or friction between them. (j) The Commissioner erred by having regard to COPS narrative which was hearsay and/or opinion and never put the Appellant in the course of the proceedings nor raised by the Respondent or the Commissioner with the Appellant in the course of the proceedings. 31In the application to appeal, the appellant foreshadowed that having regard to the passage of time since the hearing of the matter before Commissioner Tabbaa, the appellant would seek leave to call evidence on appeal of the current state of Mr O'Donnell's medical condition and fitness. 32The relief claimed by Mr O'Donnell was: (a) That the Industrial Relations Commission quash the decision of the Commissioner; and (b) That the Industrial Relations Commission re-instate the Appellant with full entitlements with effect from 7 November 2011. Leave to appeal 33As it was in New South Wales Department of Education & Training v New South Wales Teachers Federation (on behalf of Mossfield) [2006] NSWIRComm 210; (2006) 155 IR 257, this appeal, to a significant extent, seeks to challenge findings of fact. And as the Full Bench observed in Mossfield, the appellant faces a significant hurdle obtaining leave to appeal: Box Valley Pty Ltd v Price (2000) 97 IR 484 and Austin v NF Importers Pty Ltd & Anor (2005) 146 IR 113. 34The appellant referred to what the Full Bench went on to state in Mossfield at [15]; [15] However, this case is analogous to Humphries v Cootamundra Ex-Services and Citizens Memorial Club (2003) 128 IR 37 in which the Full Bench held 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.) 35Similarly in this appeal, a significant issue arises regarding fact finding in connection with Mr O'Donnell's mental illness and other matters. The appellant contends the tribunal at first instance was wrong regarding these fact findings and, if that is right, it throws doubt on the outcome determined below. 36It is appropriate that we grant leave in order to test the appellant's contentions. Consideration 37The grounds of appeal may be distilled to the following nine propositions, namely, that the Commissioner erred: (a) by failing to have regard to Mr O'Donnell's mental illness, namely, major depressive disorder with significant anxiety component at the time of the impugned conduct, which contributed to the impugned conduct and reduced Mr O'Donnell's moral culpability; (b) by failing to have regard to all of the circumstances surrounding the impugned conduct including that Mr O'Donnell was provoked or genuinely felt he was provoked; (c) by failing to have regard to the fact that Mr O'Donnell was fit for work at the time of the hearing before Tabbaa C and there was no likelihood of relapse; (d) by failing to take into account or give weight to the fact that, as the termination was a summary dismissal for misconduct, the appropriate test for misconduct justifying instant dismissal was whether the impugned conduct was deliberate, wilful and of such a nature as to strike at an essential element of the contract of service; (e) by failing to take into account, have regard to or give any weight to the fact that the finalisation of disciplinary proceedings and termination of the employment of Mr O'Donnell prior to the conclusion of concurrent criminal proceedings was harsh, unfair and unjust; (f) by failing to give adequate reasons; (g) by finding there was no sign of contrition, no sign of remorse; (h) in finding the termination of Mr O'Donnell's employment was not harsh, unfair or unjust because the evidence placed before Tabbaa C was "not available" to the respondent at the time of making the decision to terminate; and (i) by having regard to COPS narrative which was hearsay and/or opinion and never put to Mr O'Donnell in the course of the proceedings nor raised by the respondent or the Commissioner with Mr O'Donnell in the course of the proceedings. Failure to have regard to Mr O'Donnell's mental illness 38The evidence supports a finding that at the time Mr O'Donnell assaulted Mr Novotny he was suffering from a mental illness. In evidence was the certificate under s 32(3)(a) of the Mental Health (Forensic Provisions) Act. The certificate referred to the fact that Mr O'Donnell had been charged with assault occasioning actual bodily harm and, of course, the charge related to what occurred on 6 July 2011. The certificate indicated that the Court considered that at the time of the alleged commission of the offence (see s 32(1)) Mr O'Donnell "is developmentally disabled, is suffering from mental illness or is suffering from a mental condition". The charge was, accordingly, dismissed subject to certain conditions being met. 39All three medicos, Dr Ng, Dr Naidoo and Dr Kaplan, stated that Mr O'Donnell was suffering from some form of depression at the time of the incident. In his oral evidence, Dr Kaplan agreed in cross-examination that Mr O'Donnell had a mental illness going back as far as 2004 "if not longer". 40Dr Ng believed that Mr O'Donnell's illness was a contributing factor to his conduct on 6 July 2011: Mr O'Donnell's depressive symptoms contributed to him pushing his colleague at work... 41Dr Naidoo stated: He would by the nature of his illness, have been vulnerable to stressors at the time. His raised anxiety levels would have been a significant source of this vulnerability and his frustration tolerance level would have been significantly compromised by his illness. And: One would have to conclude therefore that his psychiatric symptoms did compromise his position and lead him to be vulnerable leading to the event where he pushed his colleague. 42The respondent's specialist, Dr Kaplan, expressed "no view about whether Mr O'Donnell's actions were prompted in any way by his mental illness". 43It may reasonably be concluded that the weight of the medical evidence was that Mr O'Donnell's mental condition contributed to his conduct in shoving Mr Novotny in the back on 6 July 2011. 44We note that Mr O'Donnell's mental illness was not diagnosed prior to 6 July 2011. Nor was it relied upon by the FBEU as a mitigating factor in the written submission to the respondent on 18 August, 9 September or 14 October 2011. 45In dismissing Mr O'Donnell on 7 November 2011 Commissioner Mullins made no mention of having given any consideration to mental illness. There was argument on appeal as to the extent of the Commissioner's knowledge of Mr O'Donnell's mental illness and as to the extent to which the FBEU and Mr O'Donnell sought to have the illness taken into consideration in mitigation (which neither sought to do in any specific way, despite having the opportunity to do so). We note Commissioner Mullins' evidence under cross-examination that he did not consider Mr O'Donnell's mental health to be relevant to any consideration as to what action should be taken in respect of Mr O'Donnell. It clearly is, as we shall later explain. 46However, the more relevant question on appeal is Commissioner Tabbaa's treatment of the mental illness issue and whether she failed to take this into account. By the time the matter was heard by Tabbaa C it was clear from the medical evidence that, at the time of the incident, Mr O'Donnell was suffering a mental illness that, in the opinion of Drs Ng and Naidoo (not contradicted by Dr Kaplan), affected Mr O'Donnell's state of mind and contributed to him shoving Mr Novotny. 47In her reasons the Commissioner relevantly found: (i) the first time that the Respondent would have had the opportunity to find out about SF O'Donnell's mental health issues was on 27 October 2011 when he lodged a workers' compensation claim....The Workers' compensation claim was not an issue at the time because it had been rejected by the Insurer, no mental or other health issues were before the Commissioner in relation to the Applicant for the purposes of mitigation (at [122]); (ii) In his [Dr Kaplan's] conclusion, he opined that at the time of the assault on SF Novotny, the Applicant's actions were not prompted in any way by a work-related psychological injury. The evidence in these proceedings leads me to concur with that assessment (at [124]); (iii) the Respondent thoroughly investigated the incident and afforded the Applicant natural justice and procedural fairness in allowing a number of opportunities for him to mitigate his actions (at [126]); (iv) The matters which the Applicant has sought to put before the Commission were not available to the Respondent at the time the dismissal decision was made and therefore, in conclusion, I find that the decision to terminate Mr O'Donnell was neither harsh, unreasonable nor unfair as he had been afforded natural justice and procedural fairness and dealt with in accordance with the evidence available to the Respondent (at [127]). We deal with each of these findings below. Whether the Fire & Rescue Commissioner considered the mental health issue 48The first time the respondent could have been aware of Mr O'Donnell's "mental health issues", if it had pursued further inquiries, was when Mr O'Donnell faxed a medical certificate to Ms Ridout on 30 September 2011 made out by Dr Ng noting, obliquely, a "medical condition" and inability to work from 30 September 2011 to 28 October 2011. However, neither Mr O'Donnell nor the FBEU asked Commissioner Mullins specifically to have regard to Mr O'Donnell's state of mind for the purpose of mitigation. 49The first occasion Mr O'Donnell advised the respondent of a diagnosis of depression and post traumatic stress disorder was on 27 October 2011 when he lodged a workers compensation claim. The claim was rejected on 7 November 2011. Again, there was no request by Mr O'Donnell or the FBEU for this condition to be taken into account by the respondent in mitigation. 50It is arguable that having become aware of Mr O'Donnell's diagnosis of mental illness the respondent should have made inquiries as to whether the illness had any implications for its investigation into the incident on 6 July 2011. In our opinion, however, the greater onus rested on Mr O'Donnell and his Union to bring the matter specifically to the attention of the respondent as a mitigating factor and they failed to so. It was contended that at the relevant time Mr O'Donnell was under considerable pressure and unable to think clearly. However, we note he was able to have the criminal charge against him dismissed in the Local Court pursuant to s 32(3)(a) of the Mental Health (Forensic Provisions) Act. Whether Tabbaa C took the mental health issue into account 51Tabbaa C noted that Dr Kaplan found that Mr O'Donnell suffered from "Major depressive disorder and alcohol abuse disorder". Dr Kaplan opined that Mr O'Donnell's conduct was not prompted by a work-related psychological injury. The Commissioner focused on the opinion that Mr O'Donnell's actions "were not prompted in any way by a work-related psychological injury" and made no reference to Dr Kaplan's other evidence, which expressed no opinion at all about whether the appellant's conduct was prompted in any way by his mental illness. Whilst the Commissioner concurred with Dr Kaplan's opinion, that opinion did not address the question of whether Mr O'Donnell's state of mind contributed to his actions on 6 July 2011. 52The respondent submitted, nevertheless, that Tabbaa C was clearly cognisant of the whole of the medical evidence. And whilst there was no explicit statement to the effect that she did not accept Mr O'Donnell's mental state contributed to his actions on 6 July 2011, counsel submitted a reading of the whole of the judgment leads to the conclusion that the Commissioner was aware of the medical evidence, but decided that Mr O'Donnell's mental illness did not excuse his conduct and, therefore, his dismissal was not "harsh, unreasonable or unfair". 53It was further submitted for the respondent that there was no basis for concluding that the Commissioner would have come to a different result if she had considered the mental illness question differently: That is, it is one thing to be critical of the Commissioner for not reciting the positive aspects of the medical evidence in the consideration section of her decision, but it is a whole other thing to identify that that failure makes any difference to the outcome. 54On one view of it the error made by the Commissioner was that she did not provide adequate reasons. In the absence of any reference in her consideration to the medical opinions that Mr O'Donnell's depressive symptoms contributed to him shoving Mr Novotny, one is left wondering whether the Commissioner did take these opinions into account. The only indication in the decision that she may have taken at least Dr Naidoo's opinion into account is that the Commissioner, at one point in addressing the evidence, referred to the opinion that Mr O'Donnell's: [F]rustration tolerance level would have been significantly compromised by his illness... his psychiatric symptoms ... lead him to be vulnerable leading to the event where he pushed his colleague.... 55There was no reference at all in the decision to Dr Ng's opinion that: Mr O'Donnell's depressive symptoms contributed to him pushing his colleague at work... 56If one does read the decision as a whole, as pressed by the respondent, there is little (other than the brief reference to Dr Naidoo's opinion as being part of the evidence) to indicate, first, that the Commissioner unequivocally accepted Mr O'Donnell was suffering from a mental illness at the time of the incident and, secondly, that the Commissioner took into account the evidence that Mr O'Donnell's illness contributed to his actions on 6 July 2011. On this basis the Commissioner erred because she was required to have regard to Mr O'Donnell's mental illness and give active consideration to the part it played, if any, in causing his actions on 6 July 2011, but failed to do so. 57The alternative view of the Commissioner's findings, and the one we favour, is that Tabbaa C mistakenly regarded Dr Kaplan's evidence, namely, that Mr O'Donnell's actions were not prompted in any way by a work-related psychological injury, as evidence that Mr O'Donnell's mental illness did not contribute his conduct in shoving Mr Novotny. Relying only on Dr Kaplan's evidence means that the Commissioner overlooked or failed to take into account the other two medicos' evidence and overlooked or failed to take into account the other evidence of Dr Kaplan in which he said he had no opinion to express about whether the appellant's conduct was prompted in any way by his mental illness. Whichever view of the first instance decision is adopted, the Commissioner was in error. 58As for the respondent's contention that there was no basis for concluding that the Commissioner would have come to a different result if she had considered the mental illness question differently, that is incorrect. If the Commissioner had found, as she should have on the evidence, that mental illness was relevant to an assessment of Mr O'Donnell's conduct on 6 July 2011 - whether it was serious and wilful justifying dismissal - a different light is cast on the question of whether the dismissal was harsh. 59In Wells and Commissioner of Police [2000] NSWIRComm 157; (2000) 100 IR 106 a police officer was dismissed under the loss of confidence provisions in the Police Act 1990. An assault had occurred on a young person who had attended the Police Station to enquire about a warrant and involved the applicant dragging that person from a public part of the Police Station by gripping his collar with his right hand and his left shoulder, manhandling him through the Police Station to a Perspex walled dock, bringing his head into contact with the dock once or twice, and striking the young person's face with his left hand. Peterson J observed at [36]: It seems to me unavoidable on the facts of this case to afford considerably more weight to the considerations involving the integrity of the Police Service as opposed to the interests of the applicant. Where an applicant has engaged in conduct of a kind depicted in the video in this case, it seems to me that the police officer has thrown away any substantial claim that might be made in terms of the officer's interests unless the conduct complained of can be found to have been justified in some way. It seems difficult to identify that justification merely as mitigating circumstances where an innocent visitor to a police station is attacked as a result of a police officer's perceptions or misconceptions of his attitude or behaviour. I consider that the justification for such conduct would have to be at a relatively high level before it could be accepted as an aberration which should not have serious long term consequences with respect to employment... 60Peterson J concluded that, in circumstances where the applicant in Wells was demonstrated to have been suffering from mental illness at the time of the assault and had now recovered, his removal was harsh. 61Wells was referred to by the majority of the Full Bench in Commissioner of Police v Smith [2010] NSWIRComm 162. This again involved the dismissal of a police officer who had engaged in quite serious misconduct involving firearm charges and assault. At first instance the police officer was found to have been suffering from a depressive illness at the time of the incidents that led to his dismissal. The primary judge, Backman J, stated at [90] of the first instance decision (Bradley Smith v Commissioner of Police (No. 4) [2010] NSWIRComm 14): Given the seriousness of the conduct it may be concluded that the respondent was justified in deciding to remove the applicant. That is not, however, the end of the matter. In my view the applicant's state of mind at the time he engaged in the conduct, that is, his PTSD and depression, was a decisive factor in causing that conduct. 62 Her Honour found at [95]: The Commission under s 181F(3)(a) must weigh up all of these matters and strike an appropriate balance between the two competing interests, namely the applicant's interest and the public interest. These matters I have sought to deal with in considerable detail in this Decision. In weighing up these interests as I have done I have been particularly persuaded by the medical evidence which, as I have found, warrants the conclusion that the applicant's PTSD and depression manifested as a result of his involvement in the 5 November 2006 motor vehicle accident followed in rapid succession by his involvement in other serious motor vehicle accidents and contributed to, or caused, to a significant extent, the misconduct during the two incidents in July and November 2007. It also provides a compelling explanation for his failure to attend to the Kolber and Martin matters within the prescribed limitations period. A consideration of this factor together with the other factors including the competing factors leads me to a conclusion that the applicant's removal was harsh. 63Backman J found the dismissal was harsh. On appeal, and in the process of referring to Wells, the majority (Walton J, Vice-President and Staff J) stated at [2]: [2] The conduct engaged in by Mr Smith which brought him to notice under the provisions of Div 1B of Pt 9 of the Police Act 1990 was such that only compelling mitigating circumstances may have justified a finding of harshness, particularly when public interest considerations were taken into account. However, the justification for the conduct in this case was, to borrow the analysis undertaken by Peterson J in Wells v Commissioner of Police [2000] NSWIRComm 157; (2000) 100 IR 106 at [36] a high level, because the evidence in the proceedings established that Mr Smith's behaviour was an aberration deriving from a recognised and diagnosed mental condition. It is in the public interest that mental conditions arising from employment of the kind experienced by Mr Smith receive the same recognition, acceptance and compassion as physical illnesses, injuries and infirmities. Further, the trial judge was correct in her finding that there was a procedural error in the Commissioner not having proper regard to the explanation provided by Mr Smith for his conduct based upon this psychological illness. 64There can be no doubt that in considering whether a dismissal from employment was harsh, mental illness may be required to be taken into account as a mitigating factor. No absolute rule can be laid down about this; it will depend on such matters as the nature of the illness, whether the illness is likely to cause a recurrence of the conduct , whether the individual has recovered from the illness and the nature of the conduct itself that led to the decision to dismiss. 65In Wells and in Bradley Smith the Commission considered the justification for the impugned conduct was "relatively high" or "high" due to the offenders' mental illness and that the conduct was an aberration. In the present case, Mr O'Donnell was suffering from some form of depressive illness that the weight of medical opinion considered contributed to Mr O'Donnell's impugned conduct on 6 July 2011. The conduct involved pushing a fellow officer in the back thereby causing damage to that officer's teeth and face. 66Importantly, Dr Naidoo in his report of 21 February 2012 opined that "... there appears to be no evidence to believe that he [Mr O'Donnell] would not be able to return to his work and behave in an appropriate manner there". Dr Naidoo added there was no "absolute guarantee" that could be given that Mr O'Donnell would not suffer a relapse but that Dr Naidoo was optimistic about Mr O'Donnell's prognosis. In a later report dated 30 April 2013, and tendered in the appeal proceedings, Dr Naidoo stated: The patient continues to exhibit symptoms of depression and anxiety...." His depression overall remains constant with patient "struggling to find positives" His anxiety levels fluctuate quite a lot and substantially interfere with his ability to function normal. I believe that the patient is fit for gradual and graded return to a non-stressful environment for e.g. The Sydney Communications Centre as this will enhance his recovery. I do not feel he is fit for a return to mainstream firefighting duties either in the short term or indeed in the foreseeable future. 67In an even more recent report dated 12 June 2013, Dr Naidoo stated in a letter to the FBEU: I think that the patients (sic) post-traumatic symptomatology has become increasingly evident in the intervening period and the restrictions noted in the last report indicated this in relation to his current clinical state. As well as this, simply his time of absence from work has not been helpful and a rehabilitation phase would be required given the (as mentioned in my original report) chronic nature of his difficulties. He has abstained from alcohol usage so this is not implicated in any way. 68We relevantly conclude from these reports that: (a) in Doctor Naidoo's professional opinion Mr O'Donnell is continuing to exhibit symptoms of depression and anxiety that fluctuate quite a lot and substantially interfere with his ability to function normally; and (b) in Doctor Naidoo's professional opinion Mr O'Donnell is fit for gradual return to a non-stressful environment, as this will enhance his recovery; mainstream firefighting is not a non-stressful environment. 69We refer also to Dr Kaplan's opinion expressed on 24 January 2012: Noting the history of his alcohol abuse, the possibility of a relapse in future cannot be discounted. The same would apply to his depression, although the possibility of this affecting his work behaviour is lower. It would be reasonable for him to return to work provided he is under the care of a psychiatrist for two years after he returns. Provocation 70Mr O'Donnell claimed that Tabbaa C erred by failing to have regard to all of the circumstances surrounding the impugned conduct including that he was provoked or genuinely felt he was provoked. Reference was made to Peter Rochester Gow v Cronulla Sutherland Leagues Club Ltd [2002] NSWIRComm 247; (2002) 119 IR 122, where Walton J, Vice-President stated at [292]-[293]: [292] ...Thus, in determining whether an employee's involvement in a fight at work constituted serious misconduct or whether a dismissal of the employee was harsh, unjust or unreasonable, in such a case it is necessary to consider fully the circumstances under which the employee became and was involved in the fight including, for present purposes, a consideration as to what extent the employee's actions were compelled by a need to defend himself, or by fear or intimidation. Clearly, it will also be necessary to consider the extent to which the employee was the aggressor. [293] I also concur with the judgment of Moore J in AWU-FIME Amalgamated Union v Qld Alumina Limited (1995) 62 IR 385 (at 393): ... whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self-defence. 71In her consideration Tabbaa C did not refer by name to provocation, however, we think it is apparent the Commissioner was alive to the issue. As the respondent submitted, the matters addressed by the Commissioner in her consideration addressed matters that were related to the provocation issue, including: (a) "The other team members present in the mess room and who witnessed the incident were taken by surprise by the Applicant's reaction as the banter was of no great consequence" (at [120]); (b) The Appellant said of the exchange "I believe at that stage Pav [Mr Novotny] may have entered the argument at that point or the discussion I should say, it wasn't an argument, it was a discussion," (at [120]); (c) The Appellant admitted that his anger was aimed at senior management - (at [120]); (d) "Mr Novotny had not initiated the banter" (at [120]); (e) "It was SF O'Donnell who had made a big deal out of [the episode about the pizza] on 6 July 2011" (at [120]); (f) "SF Novotny had been taken completely by surprise, hence the extent of his injuries which were considerable" (at [120]); (g) "If the Applicant had turned around and returned to his seat there would have been no need for the Mr Muzyczka to push himself between them to stop the incident escalating" (at [120]); and (h) "SF Novotny had not retaliated at any time. I find that the Applicant's action had been wilful and deliberate" (at [120]). 72It may be inferred from the Commissioner's decision that she was of the view that Mr O'Donnell was not provoked and we agree with Tabbaa C in that respect. There was no evidence to support a finding that the exchange between Mr O'Donnell and Mr Novotny about Mr O'Donnell not participating in the eating of pizza could be construed as Mr Novotny provoking or baiting Mr O'Donnell to the point that Mr O'Donnell was justified in shoving Mr Novotny. 73Putting aside mental illness, Mr O'Donnell's action was not that of a reasonable person. Mr Muzyczka asked Mr O'Donnell why he was not having pizza with the rest of the crew and was it because he was not part of the team. Mr O'Donnell replied that it was hard to feel like part of the team if you are not kept in the loop. At this point Mr Novotny said, "I told everyone yesterday that I'd be making pizza tonight." Mr O'Donnell said he had not heard that. Mr Novotny followed up by saying he recalled Mr O'Donnell was yeast intolerant and could not eat pizza and that "so unless you have had a miraculous recovery how was I to know you would want to be included?" Mr Novotny added "What, am I a mind reader or something". This was followed shortly after by Mr O'Donnell shoving Mr Novotny in the back. 74Mr O'Donnell prompted the exchange by complaining he was not kept in the loop, which would seem to have been quite unnecessary because even if he had not known Mr Novotny had volunteered to cook pizza for the crew on 6 July 2011, given his yeast intolerance Mr O'Donnell could not reasonably have expected he would have been included in eating the pizza. Mr O'Donnell said Mr Novotny knew of his yeast intolerance and resented it when Mr Novotny held a pizza night because he believed that in doing so Mr Novotny was deliberately snubbing him. Presumably, Mr O'Donnell wanted Mr Novotny to cease having pizza nights because Mr O'Donnell felt excluded, which seems a somewhat unreasonable attitude. 75Mr Novotny's response could not be regarded as provocative and was little more than what might have been expected of someone defending his position in the circumstances. The only justification for Mr O'Donnell believing Mr Novotny was being provocative was that Mr O'Donnell's state of mind made him vulnerable to even the slightest "niggling" as one witness described it. 76We have considered the evidence that there was some friction between Mr O'Donnell and Mr Novotny that preceded the incident on 6 July 2011. Mr O'Donnell seemed to regard his treatment at the hands of Mr Novotny as bullying but a complaint to that effect was never made to the employer. Mr O'Donnell regarded his relationship with Mr Novotny as "poisonous", but there was no corroboration of that view. Mr Novotny denied there was any bullying by him and we have the impression from Mr Novotny that if there was any harassment Mr O'Donnell gave as good as he got. 77The evidence, in our opinion, is insufficient to support a positive finding that Mr Novotny's treatment of Mr O'Donnell in the workplace prior to 6 July 2011 was such that, in the absence of any mental illness, it justified in any way Mr O'Donnell shoving Mr Novotny in the back or that the treatment amounted to extenuating circumstances that should be taken into account in mitigation in considering whether the dismissal was harsh. Whether fit to return to work 78Mr O'Donnell complained that the Commissioner failed to have regard to the fact that he was fit for work at the time of the hearing and there was no likelihood of relapse. 79Tabbaa C referred to Dr Kaplan's evidence that he could not discount the possibility of a relapse in the future given the history of Mr O'Donnell. However, to be fair, Dr Kaplan also said "It would be reasonable for him to return to work provided he is under the care of a psychiatrist for 2 years after he returns." 80Other evidence regarding fitness to return to work included the statement of Dr Naidoo that: ...his prognosis is very good. Given the above, taken in conjunction with his current state, there appears to be no evidence to believe that he would not be able to return to his work and behave in an appropriate manner there ...one would have to be optimistic about his prognosis. 81In the examination-in-chief of Dr Naidoo the following exchanges occurred: "Q. Doctor in your report of this month, you say that you can give no absolute guarantee that there will be no relapse of either Mr O'Donnell's drinking disorder or of anything else. Now in your opinion if a relapse occurred is it more likely than not to be another violent episode? A. No, what I meant by that is I meant that obviously in depression, major depression, or in alcohol abuse I suppose, you can't say that the person may not become depressed again, or in fact abuse alcohol again. That's what I meant. I certainly wouldn't have thought that an aggressive outburst, especially given in what's happened and his insight and understanding of the situation, I would have thought that would be extremely unlikely. ... "Q. Doctor, in your professional opinion does Mr O'Donnell have insight into the serious nature of his assault on Mr Novotny? A. Yes. Q. He does? And did he ever tell you of the nature of the injuries suffered by Mr Novotny A. Yes, he did tell me. Yes. Q. Yes he did, okay. Doctor would it be fair to say that Mr O'Donnell is an aggressive individual? A. Not in my understanding of him, no." 82The evidence before the Commissioner favoured the conclusion that Mr O'Donnell was fit to return to work, although there was always the possibility of a relapse back into alcoholism and depression. However, it seems to us that even if Tabbaa C had found that to be the case it would have made no difference to her ultimate finding that the dismissal was not "harsh, unreasonable" or "unfair". The Commissioner's main reasons for that finding appear to be related to her belief that Mr O'Donnell's action on 6 July 2011 was not caused by mental illness, that it was wilful and deliberate, that it indicated an aggressive attitude towards Mr Novotny, that there was a lack of contrition or remorse and that Mr O'Donnell had been accorded procedural fairness. 83The latest evidence regarding Mr O'Donnell's fitness for work was referred to earlier in this decision, namely, the reports of Dr Naidoo dated 30 April and 12 June 2013. That evidence indicated that Mr O'Donnell's mental state continued to be impaired and will remain that way for "some time to come". Nevertheless, Dr Naidoo considered that Mr O'Donnell could begin a gradual return to work in a non-stressful position. Dr Naidoo identified the Sydney Communications Centre as a non-stressful environment. This is surprising. 84The evidence indicated that Mr O'Donnell found working in the Centre to be stressful, especially given his poor relationship with Mr Novotny. Mr Novotny and Mr Muzyczka had ongoing concerns for their safety and the safety of colleagues if they were forced to regularly interact with Mr O'Donnell in the event that he is reinstated to his former position. Inspector Jeffrey Honey stated that he did not have confidence that Mr O'Donnell would be able to handle the highly stressful, time critical situations, such as the Triple Zero calls, and therefore would have safety concerns for his ability to provide a safe work environment for all staff, the public and Mr O'Donnell himself. 85Mr Paul McGuiggan, Chief Superintendent, expressed doubt as to his ability to deliver on his obligations to provide a safe and healthy work environment if Mr O'Donnell was reinstated either at his former work location or any other work location within the agency. He did not have confidence that Mr O'Donnell would be able to handle the often stressful, time critical situations associated with the workplace and, therefore, held safety concerns for employees, the public and Mr O'Donnell himself. 86This evidence, in our opinion, establishes that Mr O'Donnell is not fit to return to the Communications Centre. It is very clear that particular work environment is not a "non-stressful environment" and most certainly, in our opinion, would not enhance his recovery. He is also not fit to return to "mainstream firefighting duties". Whether conduct wilful and deliberate 87Mr O'Donnell submitted the Commissioner erred by failing to take into account or give weight to the fact that, as the termination was a summary dismissal for misconduct, the appropriate test for misconduct justifying instant dismissal was whether the impugned conduct was deliberate, wilful and of such a nature as to strike at an essential element of the contract of service. 88It was submitted the Commissioner failed to have regard to the established principles set out in Casari v Sydney South West Health Service [2009] NSWIRComm 103; (2009) 185 IR 217, which applied to circumstances where a dismissal is a summary dismissal for misconduct and stresses the need by the employer to establish that the conduct was wilful and deliberate. It was submitted the focus should have been on Mr O'Donnell's state of mind at the time of the conduct and, therefore, his mental illness: see Casari at [59]-[62]. 89We should observe that we do not accept the proposition that where a dismissal is a summary dismissal for misconduct that the employer must establish that the conduct was "wilful and deliberate". The proper statement of the law is that of Cook J in Re Dispute; Re Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371 at 373, 374, where his Honour summarised the law relating to acts of misconduct justifying instant dismissal by reference to various authorities, and concluded 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 at 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. 90Nothing said in Casari could be construed as inconsistent with the statement of Cook J. In Casari the Full Bench stated at [63]: [63] We will apply Budlong but expressly accept what Gillard J said in Rankin. This represents a correct précis of the contemporary law relating to summary dismissal. The first question, in this respect, therefore, is whether the appellant's conduct was a breach of his contract of employment. If so, the second question is whether the breach was of a serious nature involving a repudiation of the essential obligations under the contract or actual conduct that was repugnant to the relationship of employer-employee. The third matter that needs to be considered is the effect of the summary dismissal having regard to such factors as the appellant's age, the likelihood of him gaining other employment, his length of service and his standard of prior conduct. 91Tabbaa C found that Mr O'Donnell's conduct was "wilful and deliberate". It is not entirely clear, but it seems that the Commissioner was able to come to this view because she found, mistakenly, that Mr O'Donnell's mental illness did not contribute to his conduct. Mr O'Donnell's conduct has to be assessed in the light of his illness and, to that extent, as we earlier found, the Commissioner erred. Concurrent criminal proceedings 92Counsel for Mr O'Donnell submitted the Commissioner failed to take into account, have regard to or give any weight to the fact that the finalisation of disciplinary proceedings and termination of the employment of Mr O'Donnell prior to the conclusion of concurrent criminal proceedings was harsh, unfair and unjust. Counsel referred to Murray Irrigation Ltd v Balsdon [2006] NSWCA 253; (2006) 67 NSWLR 73, which it was submitted applied to circumstances where dismissal occurred prior to the finalisation of concurrent criminal proceedings. 93In the present appeal, Mr O'Donnell, through his union, urged the respondent to determine the matter despite the criminal proceedings being on foot. On 9 September 2011, the FBEU wrote to the Commissioner and said: There is no further information to provide in relation to this matter. The Department must make a decision in relation to the charge against SF O'Donnell, taking into consideration the information provided in mitigation of penalty. 94On 14 October 2011, the FBEU again wrote to the respondent in somewhat ambiguous terms. The letter stated: The Union notes that although SF O'Donnell has been charged in relation to this matter, it is yet to be finalised by the courts. It is premature for the Department to base its disciplinary action under Regulation 46 of the Fire Brigades Regulation 2008 on a matter which the outcome is yet to be determined. It cannot be given consideration in relation to the charge. 95Having regard to the letter overall and the FBEU's previous correspondence, the Union seemed to be saying that the employer was precluded from taking into account the criminal charge against Mr O'Donnell because nothing in that respect had been determined by the criminal courts. The evidence of Commissioner Mullins was that he did not take the criminal proceedings into account. 96The complaint on appeal now is that the respondent should not have proceeded to deal with Mr O'Donnell whilst concurrent criminal proceedings were on foot. 97In Balsdon the Court of Appeal (Handley, Ipp and Bryson JJA) found it was harsh, unjust or unreasonable to press Mr Balsdon to reply to the employer's inquiries, particularly after the employer had delayed exercising its right to require him to respond. The Court found that by the time the employer conducted its inquiry, Mr Balsdon's criminal proceedings were afoot and the employer's interests had to be "weighed with the [employee's] interest in resisting criminal prosecutions, avoiding furnishing any basis for any further prosecutions and defending his personal liberty against the criminal law" (at [40] per Bryson JA). 98Those circumstances do not apply here. Mr O'Donnell admitted culpability to the employer and to his medical advisers and admitted the disciplinary charges against him. As the respondent submitted, Mr O'Donnell suffered no disadvantage or unfairness as a result of the employer progressing its investigation and reaching a determination based upon Mr O'Donnell's admission. 99There was no error at first instance in respect of the issue of concurrent criminal proceedings. Adequate reasons 100This matter was not really pressed on the appeal. We referred earlier to adequacy of reasons and we do not find it necessary to expand on the issue. Remorse 101Tabbaa C found at [120] there was no sign of remorse or contrition and that Mr O'Donnell's letter of apology lacked sincerity. The letter of apology was written on 17 August 2011 in the context of a guilty plea to the charge of misconduct laid by the respondent. As counsel for Mr O'Donnell submitted, no submission was made by the respondent that the apology was not genuine nor that Mr O'Donnell lacked remorse. The hearing proceeded on the basis that his apology was genuine. The appellant was cross-examined to this effect by the respondent: "Q. And you have offered an apology? A. I wrote a letter of apology." Dr Kaplan gave the following evidence: Q. From your review and talking to Mr O'Donnell do you feel that he displayed insight into the actions and the consequences on 6 July? A. I think - thought he was very remorseful, so I would assume that implied a degree of insight. 102We do not consider it was open to the Commissioner to find there was no remorse. No reasons were given by the Commissioner for coming to this view. Evidence not available 103Mr O'Donnell submitted that the Commissioner erred in finding the termination of his employment was not harsh, unfair or unjust because the evidence placed before Tabbaa C was "not available" to the respondent at the time of making the decision to terminate. 104We presume the evidence to which Mr O'Donnell referred was evidence of his mental illness. It was an error on the Commissioner's part to find that the dismissal was not harsh, unreasonable or unfair because Commissioner Mullins did not have the medical evidence before him regarding Mr O'Donnell's illness. That evidence was squarely before the Commissioner and she was required to take it into account in determining the unfair dismissal application. It may have been open to Tabbaa C to find there was no procedural unfairness for the reason that the medical evidence was not available to Commissioner Mullins, but it was a step too far to find the absence of that evidence meant the dismissal was not harsh, unreasonable or unjust. COPS narrative 105It was submitted the Commissioner erred by having regard to the COPS narrative, which was hearsay and/or opinion and never put to Mr O'Donnell in the course of the proceedings nor raised by the respondent or the Commissioner with the appellant in the course of the proceedings. 106Tabbaa C referred to the COPS narrative in the following terms: [120] Mr O'Donnell denies that he had attempted to keep the altercation going after the initial push. The COPS narrative, prepared after interviews with O'Donnell, Novotny and the witnesses stated: The Victim spent a few seconds recovering before turning around. The Accused was standing facing the Victim, with the Witness standing between them. The Accused was attempting to move around the Witness to get closer to the victim and shouting "Come on, I've had enough of you". 107The COPS narrative was in evidence before the Commission and, as the respondent correctly submitted, there was evidence from other direct witnesses to the same effect. There was no error committed in respect of the use of the COPS narrative. Conclusions 108The Commissioner committed a number of errors in the course of determining Mr O'Donnell's unfair dismissal application. Principal among those errors was the failure to take into account Mr O'Donnell's illness in determining whether the dismissal was harsh, unreasonable or unjust. 109Having determined that Mr O'Donnell's mental illness should have been taken into account, we consider we are in as good a position as the Commissioner to determine whether in those circumstances the dismissal was harsh, unreasonable or unjust: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551. 110It is difficult to reach a conclusion other than that Mr O'Donnell's conduct was a serious breach of his contract of employment; it was repugnant to the relationship of employer and employee. Employees do not have a licence to assault another employee in the workplace because the words or actions of the other employee upset them. Ordinarily, mitigating considerations aside, an assault in the nature of what occurred on 6 July 2011 would rightly attract the sanction of summary dismissal. 111However, on balance, we consider that summary dismissal of Mr O'Donnell was harsh given that his mental illness contributed to his actions in shoving Mr Novotny and, accordingly, Mr O'Donnell's actions may be regarded as aberrational. Mr O'Donnell's mental capacity to deal with situations that increased his personal stress was diminished and instead of dealing with the situation in a reasonable, rational way he resorted to violence. We consider it was not Mr O'Donnell's intention to injure Mr Novotny, but exacerbated by his mental state, his action in shoving Mr Novotny in the back was reckless and, did not show reasonable regard for the possibility Mr Novotny's face might hit the kitchen cupboard and cause injury. 112In determining the dismissal was harsh we have also had regard to Mr O'Donnell's: general service record; length of service (24 years); age at the time the conduct (46 years of age); personal circumstances (married with children then aged eight years, three years and two years); and remorse. 113Having determined the dismissal was harsh, we are required to consider what remedy is available. Mr O'Donnell primarily seeks reinstatement. 114We found earlier that Mr O'Donnell was not fit to return to the Communications Centre and not fit to return to "mainstream firefighting duties". In those circumstances it is impracticable to reinstate Mr O'Donnell and an order for reinstatement, in our view, is not open to us: see Commissioner of Police v Ross [2012] NSWIRComm 17 at [118] referring to Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 as authority for the proposition that: [T]he purpose of a reinstatement order is, in the words of Kirby J "to ensure that the employee in question is placed in the status quo ante." That is, the employee is to be reinstated to the position he or she occupied immediately prior to dismissal and all of the incidents of that position, including any work the employee was performing at the time of dismissal, are required to be put back into place. 115If reinstatement is impracticable the Act provides that the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable: s 89(2). There was no evidence on the appeal of another position being available and we do not know whether within the employer's operations a suitable position may exist given the limitations we refer to below. 116The appropriate course is to remit the matter to Tabbaa C to determine whether an order should be made that the respondent re-employs Mr O'Donnell in another position that the employer has available and that, in the Commission's opinion, is suitable. In determining whether another position is available that is suitable it will only be suitable if it is a non-stressful environment and allows for Mr O'Donnell to return to work on a gradual basis. It will also be subject to a commitment by Mr O'Donnell that he will continue to consult a psychiatrist for two years or as the psychiatrist determines. 117In the event that, ultimately, the making of an order under s 89(2) is not open to the Commissioner on the evidence, it will be necessary for her to consider whether any remedy should be ordered pursuant to s 89(5) of the Act. Orders 118The Full Bench makes the following orders: (1) Leave to appeal is granted. (2) To the extent determined in this decision, the appeal is upheld. (3) The matter is remitted to Tabbaa C to be disposed of in accordance with this decision and as expeditiously as practicable. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 July 2013