Industrial Relations Commission New South Wales Medium Neutral Citation: Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance [2017] NSWIRComm 1036 Hearing dates: 20, 21 June 2017 Date of orders: 03 July 2017 Decision date: 03 July 2017 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application dismissed Catchwords: VICTIMISATION – necessary to identify detriment to find victimisation – no detriment found – no victimisation – application dismissed VICTIMISATION – Subs. 213(2) of Act a comprehensive code as to relevant powers of Commission VICTIMISATION – assertions of detriment serious matter – appropriate that tribunal be satisfied on evidence having regard to s.140 of Evidence Act – assumptions and vague inferences insufficient Legislation Cited: Industrial Relations Act 1996 s.210, 213(1), 213(2) Evidence Act 1995 s.140 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Byrne v Australian Ophthalmic Supplies Pty Ltd [2008] FCA 66 Fire Brigade Employees' Union of NSW (0/b Wayne Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1024 Graham Davis v Amalgamated Television Services Pty Limited [1998] NSWIRComm 289 Twentieth Superspace Nominees v TWU [2006] NSWIRComm 218 Category: Principal judgment Parties: Health Services Union o/b Bruce (applicant) Government of New South Wales in respect of NSW Ambulance (respondent) Representation: Mr J Fox (applicant) Mr M Sullivan, solicitor (respondent) File Number(s): 2017/48477 Judgment 1. This is an application for relief from victimisation, or more properly an application for enforcement of the provisions of s.210 of the Industrial Relations Act 1996, ('the Act') brought by the Health Services Union of NSW ('the HSU') on behalf of its member Mr Gregory Bruce. 2. Mr Bruce has, on undisputed evidence, been a member of the HSU since 1988 and a delegate since 1991. He was described by the HSU as an 'activist' in his role as a delegate. 3. The HSU sought three enforcement orders from the Commission. 4. First, it sought an order that "the Ambulance Service shall not carry out or threaten to carry out Mr Bruce so suffer injury or hardship in his employment or otherwise engage in victimisation." (sic) 5. Second, it sought an order that 'The Ambulance Service shall annul any adverse findings against Mr Bruce.' The single 'adverse finding' asserted was identified, in response to a question form the Commission, to be a statement made in correspondence to Mr Bruce by Mr David Dutton, Executive Director Service Delivery for NSW Ambulance, in these terms: 'Your decision to accept the patient was deceased upon the advice of the Police officer on the scene rather than follow the Verification of Death procedure, is below the standard expected of an Intensive Care paramedic. In this case your action caused an unnecessary delay in commencing treatment to the patient.' 1. Third, the HSU sought an order for payment of the sum of $1,020.87, said to represent penalties and other payments lost as a consequence of victimisation. A schedule of sums asserted to have been so lost was furnished with the application. 2. The Commission is not a court of strict pleading, and the Commission is not, except perhaps so far as it is dealing with an application under s.380, confined to what a party may seek in enforcement provisions of this kind. Nevertheless, after the Commission had specifically inquired of the HSU what orders it sought in terms, those were the orders sought, and that was the case the respondent came to meet. 3. What the Commission is confined to in proceedings under Part 1 of Chapter 5 of the Act are the remedies, or powers of enforcement, set out in subs.213(2). In my view subs.213(2) is a comprehensive code addressing what the Commission may do if it finds a breach of s.210. I make that observation, although for reasons which will become apparent, my expression of this view is no more than obiter dictum. Factual background 1. The allegation of victimisation is brought in the following factual context. 2. Mr Bruce is a very long-serving, senior and vastly experienced paramedic and a very long-serving union delegate and official. He is stationed at Narrabeen. He attended an ambulance callout at which he was the senior paramedic, his partner being a Mr Nolan. On arrival he was told by a police officer that the putative patient was deceased. On a brief observation from a distance conducted by Mr Bruce that seemed consistent with what he saw. The ambulance crew departed the site without assessing the patient. It emerged that the patient was in fact alive, the ambulance having to be recalled some forty minutes later to transport the patient to hospital. 3. Mr Bruce was investigated for his failure to assess the patient himself. That investigation was done pursuant to a disciplinary process as opposed to a clinical process. That was said by Ambulance to be because Mr Bruce had not made any clinical error, but had rather failed to observe the appropriate procedure by assessing the patient himself. While the investigation was being carried out, he was transferred to Balgowlah station. When Mr Bruce was told that he was to be investigated he took the next thirteen days off work on sick leave. He worked out of Balgowlah station for a time. When the investigation had been concluded he was transferred back to his home station Narrabeen. 4. The investigation, which addressed both Mr Bruce and his partner Mr Nolan, was carried out by an experienced ambulance officer, Mr Court, about whose impartiality no complaint was made. The outcome of the investigation was that Mr Court found that on the part of both Mr Bruce and Mr Nolan "there was some complacency and a misunderstanding of the circumstances in which they could/should apply the Verification of Death procedure. This complacency and misunderstanding has caused a delay in treatment to the patient and professional embarrassment for these two Officers." 5. Having reviewed that report Mr Dutton, Executive Director Service Delivery for NSW Ambulance, wrote to Mr Bruce saying that he had determined that "your decision to accept the patient was deceased upon the advice of the Police officer on the scene rather than follow the Verification of Death procedure, is below the standard expected of an Intensive Care paramedic. In this case your action caused an unnecessary delay in commencing treatment to the patient." As I note above, that was the sole 'adverse finding' which the HSU sought be annulled. 6. Mr Dutton advised Mr Bruce that he would be required to undertake refresher training in the verification of death procedure. There was no other sanction imposed on Mr Bruce. The statutory scheme 1. It is in this case useful to set out the relevant part of the statutory scheme. Section 210 provides as follows: 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person: (a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or (b) does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or (c) refuses to engage in industrial action, or (d) exercises functions conferred under this Act, or (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or (f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or (h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties), or (i) informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or (ia) informs any person or body of, or gives evidence in relation to, a notifiable occurrence within the meaning of the Rail Safety National Law (NSW), or (ib) reports a matter relating to the safety or reliability of railway, bus or ferry operations to the Chief Investigator (within the meaning of the Transport Administration Act 1988) or a person employed in the Transport Service, or (ic) informs any person or body of, or gives evidence in relation to, a breach or alleged breach of the Dangerous Goods (Road and Rail Transport) Act 2008 or the regulations under that Act (or a provision of a law of another State or Territory that corresponds to that Act or those regulations), or (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions under Part 5 (Consultation, representation and participation) of the Work Health and Safety Act 2011, or (k) assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under the Electricity Supply Act 1995. (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. What is victimisation? 1. As the Commission pointed out in Graham Davis v Amalgamated Television Services Pty Limited [1998] NSWIRComm 289, 'victimisation' itself is not defined in terms in the Act. In my view its meaning is to be inferred from the provisions of subs.201(2), which refers to an employee 'suffering any detriment'. The statutory scheme therefore operates by setting out in subs.210(1) a series of bases on which an employer is prohibited from acting toward an employee, and then by providing that where a 'detriment' is suffered by an employee by reason of 'detrimental action' by the employer, there is a rebuttable presumption that the detriment was for one of the prohibited reasons set out in s.210, if the necessary underlying factual situation contemplated in any of the sub-sections of s.210 can be established. Here, for example, that underlying factual situation was that Mr Bruce was and is a union official within the meaning of subs.210(1)(a). 2. I observe here that, if the employer rebuts the presumption, the question then arises whether that determines the case in favour of the respondent by defeating the allegation of victimisation, or rather, whether that merely disposes of the presumption, leaving the matter to be decided on its facts. In my view the latter is necessarily the case: the rebuttal of the presumption still leaves an employer with the ordinary evidentiary onus of meeting the affirmative case advanced by an applicant under the Part: Twentieth Superspace Nominees v TWU [2006] NSWIRComm 218 at [40]. Stanton C proceeded, correctly in my respectful view, on the same basis in Fire Brigade Employees' Union of NSW (0/b Wayne Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1024, unaffected on appeal. However, whether or not there were thought to be any doubt about that question, it does not fall to be decided in these proceedings. 3. It will be seen that 'victimisation' within the meaning of s.210 occurs, and only occurs, where an employee suffers a 'detriment'. Unless and until the fact of a detriment having been suffered is established, the operation of the rebuttable presumption in subs.210(2) is not triggered. The first step, then, is to identify any detriment that may have been suffered by an employee. 4. The finding as a matter of fact that a detriment has occurred is a serious finding. It gives rise to a presumption that the Act has been breached. It is a finding to be made at the civil standard of proof. 5. Of course, it is clear from a comparison of the provisions of Part 1 of Chapter 5 of the Act with the predecessor provisions, which required victimisation to be established at a criminal standard of proof, that the present provisions were drafted with an intention that it be less difficult to establish a circumstance of victimisation. So far as it is relevant, the Second Reading Speech (23 November 1995) makes that express assertion, and as the Full Bench of the Commission observed in Twentieth Superspace Nominees, s.210 is a protective provision and ought be so construed. 6. Nevertheless a finding that there has been a 'detriment' is one which could not be made on the basis of indirect inferences, and certainly not by assumption. Such a finding could only be made on evidence, and in my view a finding that there has been a detriment is a finding of sufficient gravity that the cautionary words of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2 ought be borne in mind in assessing the evidence, a view that is reinforced by the provisions of s.140 of the Evidence Act 1995. Detriments alleged in this case 1. With that firmly in mind I turn to examine the detriments asserted to have been suffered by Mr Bruce. 2. The HSU identified six specific and particular detriments which it asserted had been suffered by Mr Bruce. They were helpfully set out in a chart by way of an aide memoire, which was updated after the evidence was taken. 3. It is to be emphasised that Mr Bruce himself gave evidence in the proceedings. He did so by way of two substantial statements, the first of some 75 paragraphs, the second shorter, each with extensive annexures. He gave further evidence in cross-examination. In addition Mr Stuart Hatter, a vastly experienced union official, gave evidence by way of statement and cross examination, he having, as he deposed, had a degree of personal involvement in the circumstances surrounding Mr Bruce. While all of the evidence falls to be assessed, the evidence of Mr Bruce concerning detriments it is asserted he has suffered will obviously form the primary evidence of those facts. It is to be noted that Mr Bruce also had, in formulating his evidence, the unusual benefit of seeing other witness statements brought in his own case: Bruce, April statement, para 37. 4. The first detriment which the HSU asserted was that Mr Bruce was transferred from Narrabeen to Balgowlah while the investigation was carried out. The detrimental effect of that act was said by the HSU to be 'stress, alienation etc.' 5. The difficulty with that assertion is that while Mr Bruce gave extensive evidence in this case, as set out above, he gave no evidence at all of suffering 'stress' or 'alienation' from being transferred to Balgowlah pro tem. On the evidence he had worked there before without complaint. Pressed, Mr Bruce pointed to an email he had sent Ambulance near the end of the transfer period saying he was unhappy with the length of time the investigation was taking. In another place he asserted that he was stressed about being investigated at all. Those are statements open to him to make, but neither go to any detriment of the sort asserted by the HSU, which was a detriment expressly associated with the transfer. The fact of the investigation is what he asserts to be the trigger for his absence on sick leave, not the transfer. There is no medical evidence that his absence was connected with the transfer, or indeed with any conduct of the employer. And even beyond the matters asserted by the HSU to be detriments, no evidence was brought of any other adverse consequence of the transfer – increased travel time, family disruption, or anything at all. 6. This is a circumstance entirely unlike that in Byrne v Australian Ophthalmic Supplies Pty Ltd [2008] FCA 66, in which there was specific evidence that the employer schemed to transfer an employee with the intent of forcing them to resign. There was absolutely nothing of that sort here. The Commission cannot assume or infer on Mr Bruce's behalf that he was stressed and alienated by being transferred to Balgowlah station for a limited period when he does not say so himself in any wise. That would be an entirely wrong process of fact-finding. The first asserted detriment is accordingly not made out. 7. The second asserted detriment was that Mr Bruce's conduct as set out above was said by a Mr Goodwin to be 'negligence' or 'extreme negligence'. Mr Stone is also said to have characterised the particular conduct with which this matter is concerned in that way. Both Mr Goodwin and Mr Stone are officers of NSW Ambulance. The detriment suffered by MR Bruce was said to be stress, professional damage, and the fact that the subsequent review was of a disciplinary rather than a clinical nature. 8. It is to be observed that these remarks concerning negligence did not carry through to the final result of the investigation. There was no finding of extreme negligence or negligence at all against Mr Bruce. 9. Mr Bruce brings no evidence of stress or professional damage from the use of the words 'extreme negligence' at a preliminary stage. The words of course convey a criticism of his conduct, but in the absence of any evidence from him or anyone else I am not prepared to assume that Mr Bruce suffered stress or professional damage from their use. Neither Mr Goodwin nor Mr Stone were any part of the ultimate decisionmaking process. 10. Nor can it be sustained that Mr Bruce suffered, as a detriment from the use of these words, the fact that the investigation was of a disciplinary rather than clinical nature. 11. That is for several reasons. One, that the outcome in either event would have been, and in fact was, a review by a specially appointed officer. The outcome of that review was, as I note above, that there had been on both Mr Bruce and Mr Nolan's part some "complacency and misunderstanding." That would have been the finding on any review, it seems abundantly clear on the evidence. 12. Secondly, I do not at all accept that the use of those words directed the review as a disciplinary review rather than a clinical review. Ambulance's evidence was that the choice of a disciplinary rather than clinical review process was because Mr Bruce did not commit any clinical error, not having even treated the patient, but rather a putative failure to follow procedure. I am satisfied that that was the reason for the choice of investigative process and that it was a proper reason for that choice. It did not arise from the words used. Further, that choice cannot in any event be painted as a detriment. Mr Bruce gave evidence that he told a Mr Mawhinney that he was 'unhappy and disappointed' that the matter was being treated as a disciplinary matter. That is, with respect, not evidence that that choice was in objective terms a 'detriment'. 13. A 'detriment' must be measured objectively. That a person would have preferred one course rather than another cannot be itself amount to a detriment if there is no objective evidence to permit the one course to be said to be detrimental as against the other. That was simply not made out on the evidence here. As I say, the choice of investigative pathway did not affect the outcome 14. That also deals with the third asserted detriment, referral of Mr Bruce's circumstances to the ARG (that is, as a disciplinary matter) rather than the CRG (as a clinical matter). As I say, the ultimate outcome would have been and was the same. No evidence was brought that a disciplinary investigation is by its nature worse or more adverse, in the case of a senior paramedic, than a clinical investigation. It cannot be inferred from the word 'disciplinary' itself. Indeed, one might think that a clinical investigation, looking into clinical competence, would reasonably have emerged might be more serious a concern to a senior clinician. But in either event there was no evidence that would allow the Commission to find that one was more adverse than the other, and therefore that the choice of one pathway over another was a detriment. 15. The second and third asserted 'detriments' are not made out on the evidence. 16. The fourth detriment was said to be the adverse finding by Mr Dutton. That 'adverse finding' bears setting out once again. 17. Mr Dutton wrote: '…your decision to accept the patient was deceased upon the advice of the Police officer on the scene rather than follow the Verification of Death procedure, is below the standard expected of an Intensive Care paramedic. In this case your action caused an unnecessary delay in commencing treatment to the patient.' 1. Firstly, this is a statement made by a senior executive officer following an independent investigation. It is a statement entirely justified on the findings of that independent investigation. It is a statement which would reasonably have emerged whether the investigation was styled 'disciplinary' or 'clinical'. It appears, on all the evidence before me, to be a statement which was entirely justified. At the same time, no disciplinary step was taken; Mr Bruce was directed to go on a refresher course in the relevant protocol, which again appears entirely justified. 2. Where a statement – it falls short of a disciplinary sanction, but what follows would also apply to a disciplinary sanction - is made about an employee's performance or conduct by a senior officer, which statement is both factually correct and entirely deserved, that cannot be painted as a detriment. Were the statement to have been biased, or factually wrong, that would no doubt be another matter. But where, as here, a statement is made that is first, based on an independent investigation about which no complaint at all is made, second, is restrained, and third, is wholly available and indeed warranted on the evidence, that cannot be characterised as a detriment. The Act cannot be read to provide that no disciplinary or investigative process at all can be carried out in relation to an employee who falls within any of the sub-categories set out in s.210(1) without that being of itself a detriment and triggering the rebuttable presumption in s.210(2). Such a reading would be absurd. 3. The fourth asserted detriment is not made out. 4. The fifth detriment was said to be that when the matter was referred for review, two previous incidents involving Mr Bruce were mentioned. The detriment suffered was claimed to be to 'adversely affect prospects of review.' As a matter of simple fact, that did not happen. The independent review focussed on the single incident concerned. The asserted detriment did not crystallise. I am satisfied in any event that the reason that the two earlier incidents were advanced was out of a genuine concern that there had been a pattern of poor decisionmaking by Mr Bruce. But the detriment asserted simply did not occur, on the evidence. There was no adverse consequence. 5. The sixth detriment was said to be that Mr Bruce was treated differently from other paramedics who had attended the scene, logically primarily Mr Nolan, his partner. Mr Nolan's conduct was also considered by the ARG and was reviewed. As I set out above, the finding of the Court review was that "they', that is Messrs Bruce and Nolan, suffered from "complacency and misunderstanding". But Mr Bruce was the senior paramedic on the scene. He is paid to provide leadership and decisionmaking in that situation, accepting that paramedics work as a team. It is entirely unsurprising and entirely appropriate that he, as senior paramedic present and effective decisionmaker in a matter that had been managed less than ideally, would be the primary point of the inquiry. And it is difficult to imagine that a senior paramedic of Mr Bruce's standing and authority would not in any event have insisted on accepting responsibility for the decision, however the Service saw the matter. 6. Further and relevantly, the detriments said to be suffered were 'focus blame' – in my view a focus on Mr Bruce as the senior paramedic was entirely appropriate – 'injure standing professionally ' – about which no evidence at all was brought – and 'adversely affect prospects of review' – which did not occur. 7. The sixth alleged detriment cannot be made out. 8. I say again for want of any doubt, 'detriment' within the meaning of the Act cannot be made out on assumptions or vague inferences. The case was from the outset about Mr Bruce. Mr Bruce came before the Commission and gave evidence. It was at all times open to him to give any evidence he wished about, for example, stress associated with the transfer, or damage to professional standing and alienation attached specifically to any of the asserted detriments. He did not do so. The Commission cannot assume his evidence for him. Claim for lost moneys 1. As I have found there was no detriment suffered, and no victimisation, the claim for lost moneys falls away. However, it could not have succeeded in any event. Mr Bruce gave no evidence about losing any moneys by being absent on sick leave. A schedule was provided with the application, containing a bare list of days and sums of money. But a schedule is not evidence of loss, or evidence at all. Mr Bruce was the one man entirely able to bring evidence before the Commission of any loss he suffered. He could have said, had he wished, 'Had I not taken sick leave I would have worked such-and-such a roster; here is the evidence of that. Had I worked that roster, I would have earned these sums under this award. Here is the evidence of that. Instead I received only these sums. Here is my payslip, the evidence of that.' He did none of that. The Commission cannot invent that evidence for him. 2. As I say, as I do not find Mr Bruce suffered any detriment; there is no finding of victimisation, and the claim for money falls away entirely in any event. Nature of orders sought 1. I earlier referred to the orders sought by the HSU. The Commission could not have made either of the first two orders sought in their terms. The first order sought goes in its terms beyond what the Commission may do under subs.213(2)(e), which empowers the Commission to forbid an employer to carry out a threat which has already been made in terms, and to order that no such further threat be made. The second order sought is not contemplated by the Act. It is not provided for, contrary to the HSU's submissions, by subs.213(2)(g), which goes to orders consequential on orders already made, and does not provide a fresh subject matter over which power is granted. 2. The Commission is not, as I observe above, confined to the orders sought. Had there been victimisation made out, the Commission could have framed its own orders, within of course the boundaries of s.213(2). Victimisation was not made out and the question does not arise. Summary and disposition of the matter 1. I am unable to identify any detriment that Mr Bruce suffered. As he suffered no detriment, the matter ceases at that point. The rebuttable presumption is not triggered and both for that reason and because, even leaving aside the rebuttable presumption, there can be no finding of victimisation without detriment, the respondent has no liability in the matter. Orders 1. The application is dismissed. PETER NEWALL Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 July 2017