Ambulance Service of New South Wales and John Buchtmann [2007] NSWIRComm 18

Industrial Relations Commission (NSW)|2007-07-01|Before: Walton J, Sams DP, Grayson DP, Mr J

CITATION: Ambulance Service of New South Wales and John Buchtmann [2007] NSWIRComm 18

APPELLANT Ambulance Service of New South Wales PARTIES: RESPONDENT John Buchtmann

CORAM: Walton J Vice-President; Sams DP; Grayson DP

Appeal - leave to appeal - stay granted - unfair dismissal - allegation of assault of ambulance officer by another officer - dismissal for misconduct - preferred evidence - Commissioner found assault did not occur - balance of probabilities - Briginshaw test - dismissed employee reinstated - whether allegation proven to requisite standard - whether Commissioner mistook facts or misapplied relevant principles - whether Commissioner's findings on the evidence reasonably open - case argued below on all or nothing basis - appellant's evidence substantial and direct - harshness of dismissal raised for the first time - appellant's serious concerns arising from respondent's other conduct. CATCHWORDS: Held; Leave to appeal - findings not reasonably open on the evidence - proper administration of justice - proceedings at first instance conducted on "all or nothing basis" - alternative submission as to harshness of dismissal put on appeal not available - different case on appeal not accepted - Commissioner did not resolve essential conflicts of evidence - Commissioner did not make adverse findings of credit against witnesses - failure to give adequate reasons- factual errors - overwhelming first hand evidence that incident did occur - errors require appellate intervention - unnecessary to consider appellant's concerns as to respondent's other conduct - leave to appeal granted - appeal upheld - decision and order of Commissioner quashed - stay order dissolved.

LEGISLATION CITED: Industrial Relations Act 1996

Abalos v Australian Postal Commission (1990) 171 CLR 167 Ambulance Service of New South Wales and John Buchtmann [2006] NSWIRComm 221 Archibald v New South Wales TAFE Commission Appeal No. 502 of 2001 Austin v NF Importers Pty Ltd and Another (2005) 146 IR 113 Autobake Pty Ltd v Budd & Grainger (1986) 19 IR 18 Box Valley Pty Ltd v Price (2000) 97 IR 484 Briginshaw v Briginshaw (1938) 60 CLR 336 Byrne & Frew v Australian Airlines Limited (1995) 185 CLR 410 Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264 Commissioner of Police v Evans (2006) 153 IR 144 Devries v Australian National Railways Commission (1993) 177 CLR 472 Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149 CASES CITED: Humphries v Cootamundra Ex-Services and Citizens' Memorial Club (2003) 128 IR 37 John Buchtmann v Ambulance Services of New South Wales [2006] NSWIRComm 1052 Jones v Hyde (1989) 85 ALR 23 King v State Bank of New South Wale (No 2) (2002) 126 IR 407 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Little v Commissioner of Police (No 2) (2002) 112 IR 212 London Bank of Australia Ltd v Kendall (1920) 28 CLR 401 Metwally v University of Wollongong (1985) 60 ALR 68 New South Wales Department of Education and Training v New South Wales Teacher's Federation (on behalf of Mossfield) [2006] NSWIRComm 210 Port Macquarie Golf Club v Stead (1996) 64 IR 53 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignam (1931) 46 CLR 73 Webb v Goulburn Masonic Village (2004) 136 IR 309 Wells v Commissioner of Police (2000) 100 IR 106 Wilson v Department of Education and Training (2000) 100 IR 1

APPELLANT Mr S Benson of Counsel SOLICITOR: Ms M Kelly Crown Solicitors Office

RESPONDENT Mr J Murphy of Counsel Mr J Bennett of Counsel Assisted by: Mr R Morgan, Industrial Officer Health Services Union

24 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WALTON J, VICE-PRESIDENT SAMS DP GRAYSON DP Monday 12 February 2007 Matter No IRC 2510 of 2006 Ambulance Service of New South Wales and John Buchtmann

Application by Ambulance Service of New South Wales for leave to appeal and appeal against a decision and orders of Commissioner Macdonald given on 31.5.2006 in matter no. IRC 7122 of 2004

1 The Ambulance Service of New South Wales ("the appellant") seeks leave to appeal and if leave be granted, appeals a decision and orders of Macdonald C given on 31 May 2006 in John Buchtmann v Ambulance Services of New South Wales [2006] NSWIRComm 1052. 2 The decision and orders under appeal concern an application by Mr John Buchtmann ("the respondent"), pursuant to Pt 6 Ch 2 of the Industrial Relations Act 1996 for reinstatement and payment of lost earnings following his dismissal on 18 November 2004 for alleged misconduct. The Commissioner found that the alleged misconduct against the respondent had not been proven, his dismissal was unjust and that he should be reinstated to his former position as an ambulance officer and paid half of the amount he would have received had he not been dismissed. 3 On 6 July 2006, Sams DP granted a stay of the orders of the Commissioner on certain conditions: Ambulance Service of New South Wales and John Buchtmann [2006] NSWIRComm 221. A short background to the matter and the Commissioner's decision were set out in the decision of Sams DP at paras [5] to [14]:

5 The respondent had been an ambulance officer for 23 years. The Commissioner noted that he is a trained paramedic, a certified rescue officer and founding member of the Penrith Volunteer Rescue Association.

6 While on suspension pending an inquiry into an incident in the Penrith Police cells on 10 May 2003, the respondent was involved in another incident at Glenmore Park on 19 April, 2004. In that incident, the respondent attended a road accident in his capacity as a volunteer rescue person. The accident involved a motorcyclist, Ms Amy Wykes coming off her bike at night. Two ambulance officers, Trent Speering and Michael Fifield-Smith and a police officer, Senior Constable Duanne Phillips were in attendance at the accident. While the ambulance officers were attending to Ms Wykes (who was laying on the roadway) and Senior Constable Phillips was directing traffic, an incident and an exchange ensued between the respondent and Mr Speering.

7 Commissioner Macdonald summarised the incident before him in this way: 13 There was a fundamental dispute before the Commission as to what type of physical contact took place between the Applicant and Trent Speering. The Applicant deposed he came up behind and beside Speering and tapped him on the shoulder and said, "What have we got?" or similar words. Trent Speering deposed that the Applicant hit him and with enough force to make Speering lose his balance and tip him to one side. This caused Speering to move the head and neck of the patient.

The Applicant denied Trent Speering's version of the events. 8 Shortly after this incident, the respondent remained suspended from duty arising from the allegation that he had hit Mr Speering. The appellant initiated an inquiry into the matter which was conducted by Sydney barrister, Mr John Clarke. Mr Clarke found against the respondent.

9 Six other charges were also put to the respondent which involved allegations that whilst on sick leave, he had undertaken secondary employment with the Volunteer Rescue Association, without written approval from the Ambulance Service of New South Wales and contrary to a verbal direction not to do so.

10 Commissioner Macdonald also found in favour of the respondent in respect to these matters. However, the appellant did not challenge these findings. The central focus of the appeal concerned the respondent's conduct during the Glenmore Park motorcycle incident and whether he was guilty of misconduct warranting dismissal.

11 During the proceedings below three persons gave evidence that the respondent had assaulted Mr Speering - namely, Mr Speering himself, his colleague, Mr Fifield-Smith and a friend of the motorcyclist, Mr Colin Smith (who had been travelling behind her). The injured motor cyclist claimed she heard a conversation between the respondent and Mr Speering and had felt a "jolt" but did not (and probably could not) have seen any assault.

12 The respondent denied the assault allegation. He accepted, however that he had "tapped" Mr Speering on the shoulder; but only to get his attention. Senior Constable Phillips said he did not see the respondent strike or hit Mr Speering and had it happened he would have seen it.

13 It is plain from the Commissioner's later consideration of the evidence that he did not accept the evidence of Mr Speering, Mr Fifield-Smith or Mr Smith; rather he preferred the respondent's evidence and that of Senior Constable Phillips that no assault had taken place. In this regard he said at para 82: 82 The overall assessment of the evidence as to whether there was an assault, led the Commission to the conclusion that the Respondent had not made out its case that such an assault took place.

Given the serious allegation by the Respondent that the Applicant had assaulted Speering ("a violent blow") and the impact that that could have had on the downed motor cyclist (who may have had spinal injury), there needs to be substantive evidence produced by the Respondent to show that the Applicant did indeed assault Speering. The level of substantive evidence required is that level whereby the Commission is comfortably satisfied that the Applicant assaulted Speering.

That standard of proof is the Briginshaw standard: Briginshaw v Briginshaw (1938) 60 CLR 336 at 354 - 369, per Dixon J.

Accordingly, the Commission finds that the Respondent has not made out its case to that standard of proof. 14 The Commissioner concluded that the respondent's dismissal was therefore unjust and made the following orders:

(a) The Applicant (Mr Buchtmann) is to be reinstated by the Respondent (Ambulance Service of New South Wales) into his former position.

(b) The employment of the Applicant is to be taken not to have been broken by his dismissal.

(c) The Applicant is to be paid one half of the remuneration he would have received had he not been dismissed. The amount of remuneration to be paid to the Applicant is to be calculated from the date of dismissal to the date of reinstatement, less any amount of monies paid (if paid) as notice period.

(d) The orders of the Commission shall take effect within twenty-one days from the date of this Decision.

SUBMISSIONS Leave to appeal 4 On the question of leave to appeal, Mr S Benson of counsel for the appellant submitted that this is a case analogous to Humphries v Cootamundra Ex-Services and Citizens' Memorial Club (2003) 128 IR 37. There the Full Bench held at [77]: ...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." 5 Mr Benson put that the "allegations in this matter are so serious that there is a strong public interest in permitting the matter to be ventilated as the reinstatement of the respondent, if not properly founded, may have the potential of endangering the patients and employees of the ambulance service".

6 It was further submitted that the Commissioner at first instance had mistaken the facts or misapplied relevant principles so grossly that a serious miscarriage of justice would occur if these errors were not corrected on appeal. 7 In reply, Mr J Murphy of counsel for the respondent submitted that there was nothing in the appellant's Narrative on Leave to Appeal which satisfied the requirements for the grant of leave as enunciated in cases such as Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380. ([1999] 89 IR 47). He said that this was not a case where the Commission had failed to deal with important evidence going to the basis of the reason for dismissal. No errors of the class identified in Humphries or NSW Department of Education and Training v NSW Teachers Federation (on behalf of Mossfield) [2006] NSWIRComm 210 had been identified in this case. 8 Mr Murphy put that the Commissioner had not mistaken facts or misapplied principles. Leave to appeal should therefore be refused. The Appeal Submissions for the appellant 9 Mr Benson's primary submission was that the findings of fact which led to Commissioner Macdonald's decision and orders were not reasonably open or were clearly wrong on the evidence: New South Wales Department of Education and Training v New South Wales Teacher's Federation (on behalf of Mossfield); Victorian Stevedoring and General Contracting Co. Pty Ltd v Dignam (1931) 46 CLR 73 at 107; Autobake Pty Ltd v Budd & Grainger (1986) 19 IR 18 at 25; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178; Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149 at 153 - 155; Port Macquarie Golf Club v Stead (1996) 64 IR 53 at 59; and London Bank of Australia Ltd v Kendall (1920) 28 CLR 401 at 407.

10 Mr Benson said that the respondent had committed a serious breach of discipline in that he had assaulted Ambulance Officer Speering and that the respondent's conduct was such as to render him unfit to be employed as an ambulance officer. 11 Mr Benson put that the evidence as to the assault of Mr Speering "fell into two opposing camps". On the one hand was the direct first hand evidence of Mr Speering, his colleague, Mr Michael Fifield-Smith, the accident victim, Ms Amy Wykes and her friend, Mr Colin Smith, who all claimed the assault had taken place. On the other hand, the respondent denied the assault, but did accept he "tapped" Mr Speering on the shoulder; but only to gain his attention. The evidence of a police officer, Senior Constable Phillips, who attended the scene, was that he did not witness the alleged assault. The respondent had also relied on the hearsay evidence concerning a conversation between Mr Fifield-Smith and a friend of his, Mr Stevenson about the incident which took place some time later at a race track. The Commissioner was unduly influenced by this evidence. Mr Benson examined the evidence of each of the witnesses and concluded that the weight of evidence clearly favoured a finding that the assault had taken place. 12 Mr Benson referred to the standard of proof relied upon by the Commissioner to determine whether an assault had occurred; namely the Briginshaw test (see Briginshaw v Briginshaw (1938) 60 CLR 336) This required the Commissioner to be reasonably satisfied that the allegation was proven. While reasonable satisfaction should not be based on inexact proofs, indefinite testimony or indirect inferences, the evidence in this case could not be criticised on that basis. The appellant's evidence was substantial and direct. Mr Benson criticised the Commissioner's expression "substantive evidence" as being required and said such a test incorrectly applied the Briginshaw standard and placed the evidentiary test impossibly high. 13 Mr Benson further submitted that the Commissioner's doubts as to Mr Fifield-Smith's evidence was not reasonably open. Under cross examination, Mr Fifield-Smith did not alter his police statement concerning the assault. The Commissioner had had no regard for the evidence of Mr Stevenson, it was submitted, and had relied solely on Mr Fifield-Smith's responses under cross-examination about the conversation. Accordingly, no findings of fact were made as to the conversation and there was no sound basis to call into question the credit of Mr Fifield-Smith. On the other hand, the Commissioner did not make a finding rejecting Mr Colin Smith's evidence, but merely discounted it because it was "plausible" that the police officer would have seen a "violent blow", if it had occurred. Given that Mr Colin Smith's account corroborated the evidence of Mr Speering and Mr Fifield-Smith it was not reasonably open to the Commissioner to dismiss Mr Colin Smith's evidence. 14 Mr Benson sought orders quashing the Commissioner's decision and orders. He said it was also a relevant consideration that the Ambulance Service had serious concerns over the way the respondent had conducted himself on other occasions for which he had been warned or reprimanded. Submissions for the respondent 15 In written submissions put on behalf of the respondent it was submitted that the Commissioner's findings of fact were largely based on his perceptions as to the credibility of witnesses formed with the considerable advantage of having seen and heard the witnesses give their evidence and having observed their demeanour whilst doing so: Jones v Hyde (1989) 85 ALR 23; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. 16 It was submitted that the Commissioner's findings were not wrong and were reasonably open on the evidence and based on a correct application of the appropriate standard of proof. 17 The respondent rejected the appellant's contention that the evidence of the appellant's four witnesses was "cogent" evidence. Their evidence contained serious inconsistencies and contradictions: for example, Ms Wykes had not observed any assault, but had felt a "jolt"; Mr Fifield-Smith had observed two contacts by the respondent on Mr Speering, but Mr Speering said it was only one, the hit; Mr Speering could not recall saying to the police officer "Did you see that?" and Mr Fifield-Smith could not recall those words being said; Mr Fifield-Smith was unsure as to whether he was tending Ms Wykes from her left or right side. It was submitted that Mr Fifield-Smith's evidence must be considered in light of the evidence of Mr James Stevenson about the conversation at the race track. 18 The respondent contended that the evidence of Colin Smith was also inconsistent. He was the only witness who claimed he had heard the respondent's alleged swearing. Further, he did not report the alleged assault to the police officer in attendance, Senior Constable Phillips. 19 The Commissioner thoroughly analysed all these inconsistencies and his analysis was balanced and correct. It was open to the Commissioner to find that the allegation of assault by the respondent against Mr Speering had not been made out to the required standard of proof. 20 It was further submitted that the Commissioner's use of the term "substantive evidence" was an entirely orthodox application of the Briginshaw test. 21 Mr G Bennett of counsel who appeared for the respondent at the hearing of the matter (he did not appear at first instance or in the preparation of written submissions for the appeal), submitted that the incident on 19 April 2004 needed to be considered in the context of the respondent's 23 years of dedicating his life both professionally and as a volunteer to the welfare of persons involved in life threatening situations. His volunteer work with the Volunteer Rescue Association (VRA) commenced before he became an ambulance officer. Mr Bennett asked the Commission to consider the inherent unlikelihood of such a person conducting himself in such a way as to endanger an injured person. This was an incident which was "quite traumatic" for all those involved and had affected their respective recollections of events. 22 Mr Bennett referred to the Clark Inquiry (an inquiry undertaken for the appellant by a barrister, Mr Clark) which had found that the respondent had struck Mr Speering with "a violent blow to the left shoulder". He contrasted this finding with all of the witnesses who had variously described a "tap", a "hit" or a "shove", but no one had described the contact as a "violent blow". The appellant had acted on this upgraded finding without any supporting evidence. 23 Mr Bennett said that the respondent's primary submission was that the Commissioner "got it right" in finding that no assault of any kind had occurred. However, Mr Bennett contended that, if the Commission finds there was a "hit" as distinct to a "violent blow" then there is still an issue as to the harshness of terminating an employee with 23 years good service. The Full Bench might conclude that in light of the harshness of the dismissal, the matter be remitted to another member of the Commission for determination. He relied, in this respect, on the Full Bench's powers on appeal under s 192 of the Act, which are as follows:

192 Powers on appeal (1) On an appeal under this Part to a Full Bench of the Commission, the Full Bench may (in accordance with this Act): (a) confirm, quash or vary the decision of the Commission concerned, or (b) direct a member of the Commission to take further action under this Act to carry its decision on the appeal into effect, or (c) refer the matter back to the member of the Commission, with such directions or recommendations as the Full Bench considers appropriate. The Full Bench may determine a part of the matter and refer the remainder back to the member of the Commission.

24 Mr Bennett added that the evidence of Mr Colin Smith concerning the area of the blow and the alleged swearing by the respondent, which no one else said they heard, was out of step with both the respondent's evidence and that called by the appellant. The Commissioner had resolved this conflict by comparing Mr Colin Smith's evidence with the other witnesses, particularly Senior Constable Phillips, who was an experienced police officer not emotionally involved in the incident, but merely carrying out his professional duties. Ms Wykes was injured, Mr Colin Smith was emotionally involved and the two ambulance officers were attending to their patient. In reply 25 The appellant submitted that the Commissioner did not make findings of fact based on the credibility of witnesses and accordingly the Full Bench was in as good a position as the Commissioner to make an assessment of the probative value of the evidence. 26 Mr Benson said the Commissioner erred in discounting the evidence of Ms Wykes. Her evidence as to a jolt was not based solely on Mr Speering's statement. She corroborated the direct evidence of the other witnesses, including the sequence of events and the tension and anger in the respondent's voice. 27 The uncertainties in recalling certain words did not undermine Mr Fifield-Smith's direct eyewitness account of the respondent hitting his colleague. The Commissioner had paid no regard to Mr Stevenson's evidence so no adverse findings as to Mr Fifield-Smith's credit could or were made. The findings that Mr Fifield-Smith's "doubtful responses" undermined his claim to have witnessed the assault were not reasonably open or alternatively was clearly wrong. Mr Fifield-Smith had given consistent evidence to the Police, the Clark Inquiry and the Commission. 28 The appellant rejected the proposition that there were "substantial inconsistencies" between the accounts of Mr Smith, Mr Fifield-Smith and Mr Speering, whereas there was a direct conflict with the respondent's evidence and that of the appellant's witnesses. 29 Mr Benson emphasised that, despite minor discrepancies, there was a striking similarity and consistency with the appellant's witnesses as to what occurred that night. It was clear the Commissioner had difficulty in resolving the conflicting evidence. However, he did not address the key issues of conflict between the respondent, Mr Smith, Mr Speering and to a lesser extent, Ms Wykes. 30 Mr Benson said there was no dispute that there was an exchange of words between Mr Colin Smith and the respondent which Senior Constable Phillips said he did not witness. Mr Colin Smith had taken the first opportunity to complain when Ambulance Officer Lowe arrived. The respondent had reacted in an extremely unprofessional and dangerous manner, which supported the proposition that an assault had occurred. The blow was of a sufficient force delivered in anger, petulance and frustration and which could have had the gravest consequences for Ms Wykes.

Supplementary submissions 31 The parties filed further written submissions which went essentially to other serious concerns raised by the appellant as to the manner in which the respondent had carried out his duties. It was said that these concerns mitigated against reinstatement. 32 Mr Bennett submitted that these concerns arose after the respondent had become Chairman of the Occupational Health and Safety Committee in February 2002 and the Union's sub-branch had placed a ban on the use of thermo cots for the transport of infants in ambulances. Mr Bennett identified four incidents since that time which involved the applicant being warned or disciplined. The first concerned the manner in which he spoke to a family in December 2002. While he was found to have used "short, sharp remarks delivered in a barking tone", it was difficult to see, it was submitted how this constituted a serious concern. 33 Secondly, a complaint lodged against the respondent regarding his behaviour toward a Mrs Edwards was found to be substantiated despite it being accepted that the respondent was completely denied procedural fairness. 34 Thirdly, the respondent was said to be the subject of a complaint in May 2003 by another ambulance officer concerning the safety of a colleague while driving an ambulance. It was said the incident involved the respondent braking severely whilst conveying a critically ill patient in order to avoid an accident and he had again been denied procedural fairness. 35 A fourth incident involved the respondent being reprimanded for an incident in the Penrith Police cells in May 2003. He was found to have exerted pressure to a prisoner's arm, but, it was contended, the investigator made findings which were never part of the original charge. 36 Mr Bennett put that the attidude of the appellant in respect to these incidents was infected by a denial of procedural fairness and a bias view of the respondent. He was never going to get a 'fair go' and was never going to have the benefit of an innocent explanation for all the incidents. 37 Mr Bennett further submitted that the issue of the harshness of the dismissal was raised during the earlier proceedings when the reference to his 23 years good service as an ambulance officer was made by both Counsel and the Commissioner. 38 Mr Benson submitted that the respondent's explanations about his past conduct demonstrated why the appellant engaged an outside investigator to conduct the inquiry into the incident. The inquiry was detailed, transparent and procedurally fair. 39 Mr Benson commented on the question raised in the appeal proceedings, as to whether the determination of the charge should be confined to the terms of the charge as laid. Put another way, whether it was appropriate to find the charge proven, if one element of the particulars was not made out ie. whether the blow was a "violent" one. Mr Benson said that the crucial question to be answered is whether the essential elements of the charge had been made out on the evidence, rather than focussing on the strict proof of particulars. He referred to a decision of the Government and Related Employees Appeal Tribunal in Archibald v New South Wales TAFE Commission Appeal No. 502 of 2001. 40 Mr Benson contended again that the case before Macdonald C was definitely run on an "all or nothing" basis. The references cited by Mr Bennett do not change that proposition. CONSIDERATION Leave to appeal 41 The appellant is required by s 188 of the Act to obtain the Full Bench's leave to appeal the decision and orders of Macdonald C. The Full Bench is to grant leave to appeal, if in its opinion, the matter is of such importance that, in the public interest, leave should be granted: s 188(2). 42 The principles to be applied when considering the grant of leave to appeal are well known. Leave to appeal will not lightly be granted: Knowles v Anglican Church Property Trust (No 2); King v State Bank of New South Wale (No 2) (2002) 126 IR 407 at 52; Commissioner of Police v Evans (2006) 153 IR 144. Leave may be granted if an issue of real significance in the interests of justice has been identified: Austin v NF Importers Pty Ltd and Another (2005) 146 IR 113 at 4. Leave may also be granted where the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implication for the jurisprudences of this Commission, including whether the decision has widespread practical application": Knowles at 382. An appellant will face a significant hurdle in obtaining leave, if the appeal merely seeks to primarily challenge findings of fact which are otherwise reasonably open on the evidence or the exercise of a discretion: Box Valley Pty Ltd v Price (2000) 97 IR 484 at 4. 43 We consider that it is appropriate to grant leave to appeal in this case. As Mr Benson correctly submitted this appeal raises similar issues to those identified in Humphries and Mossfield. In our view the Commissioner made a number of fundamental errors in his conclusions concerning the evidence before him.

44 As we will discuss, we agree with the appellant's contention that there is a substantial basis to conclude that the major finding of the Commissioner that an assault did not occur was not reasonably open on the evidence: Humphries and Mossfield.

45 That being so, this appeal bench should intervene by granting leave to appeal as the appeal generally raises significant issues as to the proper administration of justice.

The Appeal 46 In considering this appeal it must be borne in mind the manner in which the respondent conducted his case at first instance. It is apparent from the originating application, the transcript of proceedings, and the Commissioner's decision that the respondent's position was advanced on an "all or nothing" basis. We note that it was both counsels' understanding that the proceedings before Macdonald C proceeded in this fashion (although the respondent indicated that references had been made to the respondent's length of service during the proceedings). That is, at all stages of the proceedings, the applicant strenuously denied the misconduct against him and invited the Commissioner to find that the allegations of assault could not be proven. He contended that he should be reinstated to his former position as an ambulance officer upon the basis of such findings. At no stage did he submit that the Commissioner should make a finding of unfairness on some alternative (or lesser) basis, such as the harshness of the termination, even if misconduct was proven: see Little v Commissioner of Police (No 2) (2002) 112 IR 212. Nor did he submit that the exercise of the Commission's discretion at first instance might attract such alternative considerations. 47 We acknowledge that Mr Bennett strenuously advanced on appeal an alternative proposition which, in essence, challenged the respondent's dismissal based on harshness grounds: Byrne & Frew v Australian Airlines Limited (1995) 185 CLR 410 at 465; Wells v Commissioner of Police (2000) 100 IR 106 at 118. He submitted that an ambulance officer of 23 years standing, who had dedicated his life as a professional and volunteer to assisting people in life threatening situations should not have been dismissed. He invited the Full Bench to remit the matter for further hearing if the Commission finds against his primary submission that the allegation could not be proven to the requisite standard. 48 However, what is, thereby, being proposed is essentially the conduct of a different case in the appeal (or by way of remittal on a successful appeal) to that which was conducted at first instance. Whilst we can understand Mr Bennett advancing the alternative submission, we do not think that it is properly available on appeal, the point not having been argued below and, therefore, not the subject of any consideration by Macdonald C. We do not believe that Mr Bennett's reliance on the provisions of s 192 of the Act ultimately assisted him in this regard: see Metwally v University of Wollongong (1985) 60 ALR 68 at 71 and by analogy of principles in Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264 at 268.

49 Turning then to the appeal proper, we are satisfied that the Commissioner erred in not resolving the clear conflict of evidence between the respondent and Mr Colin Smith, the respondent and Mr Speering and the respondent and Mr Fifield-Smith. The Commissioner had, in fact, described those conflicts as "a fundamental dispute before the Commission". Whilst it might be inferred that the Commissioner had resolved the conflicting evidence by his finding that no assault had occurred, considering the starkly opposed versions of events, there was an obligation on the Commissioner to identify plainly how he resolved those conflicts. This is particularly so where he made a finding contrary to direct evidence of the alleged assault by two witnesses (both of whom gave relatively consistent and contemporaneous accounts of the incident). The failure to make such findings represented an insufficiency of reasons warranting appellant intervention. 50 In coming to that conclusion we have adopted the principles stated by a Full Bench in Webb v Goulburn Masonic Village (2004) 136 IR 309 (at [33] to [38]) as follows: 33 As to the issue regarding the failure of the Commissioner to give adequate reasons for his decision, there are numerous cases that address the requirement on judges to give adequate reasons for their decisions: Petitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271-272 per Mahoney JA and at 280-281 per McHugh JA; Yates Property Corporation Pty Ltd (in liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156 at 160 per Kirby P and at 182-183 per Handley JA; Mifsud v Campbell (1991) 21 NSWLR 725 per Samuels JA at 728. The statements regarding the requirement to give adequate reasons have been approved in a number of decisions of the Commission: Woolworths Ltd v National Union of Workers, NSW Branch (unreported, Fisher CJ, Hungerford and Peterson JJ, CT96/1060, 1065 and 1074, 12 July 1996); Lismore Challenge Ltd v Lavis (1999) 88 IR 230 at 235; WorkCover Authority of NSW (Insp. Mayo-Ramsay) v Allen Taylor & Co Ltd (1999) 92 IR 392 at 393.

34 In Drake Personnel Ltd t/a Drake Industrial v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 459, the Full Bench held: Although the failure of a judicial officer to provide adequate reasons may constitute an error of law (see Pettit v Dunkley (1971) 1 NSW LR 376 at 388), the extent of the reasons required will vary in light of the nature of the proceedings and the nature of the matter being decided (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271 -273 per Mahoney JA and at 280-281, per McHugh JA, and Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 160 per Kirby P and at 182-183 per Handley JA). It is not always necessary for a judicial officer to expose every step in his or her chain of reasoning. 35 In Lorna Britton and Riverstone Public School (unreported, Matter No IRC 5504 of 1998, IRC of NSW, Schmidt J, Sams DP and McLeay C, 6 May 1999), an appeal involving an unfair dismissal from Commissioner Buckley , the Full Bench, after referring to Woolworths Ltd v National Union of Workers, NSW Branch and Soulemezis, observed that: It also follows that where reasons which are given are brief, they nevertheless must deal with the particular issues of fact and law which call for determination in the case … What is required is for reasons to be given in relation to the issues which require the Commission's determination in the particular case.

36 We also refer to Entertainment Distributors Company Pty Limited v Burnard (1993) 49 IR 446 at 452, an appeal from a decision of Conciliation Commissioner McMahon and Monier PGH (Holdings) Ltd v Horsey (1998) 86 IR 63 at 72-73.

37 In Edwards v Giudice (1999) 169 ALR 89 Marshall J (with whom Moore J agreed, Finkelstein J not finding it necessary to determine) made certain findings regarding the obligation on a non-judicial member of the Australian Industrial Relations Commission ("AIRC") to give adequate reasons for any decision. At [44] to [46] his Honour stated: 44 In a seriously contested case before a tribunal which is required to afford procedural fairness and act judicially, an arbitrator is obliged to disclose the steps involved in the reasoning which leads to a particular result. There does not appear to be any obligation expressed in the Act to require a member of the Commission to give adequate reasons for a decision. It does not thereby follow, however, that in some cases such as strongly contested ones where a final order of significant consequence may be made that full reasons should not be given. 45 As Deane J said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366: A duty to act judicially (or to accord procedural fairness or natural justice) extends to the actual decision-making procedure or process, that is to say, to the manner in which and the steps by which the decision is made. 46 The obligation to give adequate reasons may more readily arise when a right of appeal lies from the order which gives effect to the decision at first instance, as is the case in the instant circumstances. Indeed a statutory right of appeal was considered by the New South Wales Court of Appeal as being a relevant "special circumstance'' in the context of the portion of the judgment of Gibbs CJ in Osmond cited above: see Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 per Priestley JA, with whom Powell JA agreed (at 734-5), and per Handley JA at 739.

38 In Edwards v Giudice the Full Bench of the Federal Court was concerned with decisions by a member of the AIRC pursuant to s 170 CG of the Workplace Relations Act 1996 (Cth). Whilst that provision is different from the counterpart provisions in ch 2 Pt 6 of the Industrial Relations Act 1996 (for example s 170CG(3) makes it mandatory for the AIRC to have regard to certain matters whilst s 88 of the Industrial Relations Act leaves it to the discretion of the Commission to take similar matters into account, if appropriate) we, nonetheless, consider that there is an obligation upon non-judicial members of this Commission to "disclose the steps involved in the reasoning which leads to a particular result" in those cases where there is a duty to accord procedural fairness or natural justice. Such cases include applications under s 84 of the Act.

See also Wilson v Department of Education and Training (2000) 100 IR 1 at 69-71. 51 We observe that the Commissioner, in failing to resolve the significant evidentiary conflict, also made no findings of credit at all about the appellant's witnesses. 52 Having so found, it would be sufficient to dispose of the appeal on this basis alone and remit the matter for further hearing. However we do not consider this is an appropriate course, particularly given that both parties sought that we resolve for ourselves the ultimate question: whether there was a proper basis for appellate intervention with respect to the merits of the Commissioner's findings as to 'unfairness'. 53 We consider that the overall preponderance of evidence inevitably leads to a conclusion that the respondent had struck Mr Speering during the incident on 19 April 2004. We do not consider, on the evidence, that the respondent merely tapped Mr Speering on the shoulder as he approached him, but rather pushed him in anger with sufficient force to jolt him whilst holding the patient. We are not restrained in reaching that view because of credit findings made at first instance because, as we have noted, none were made. In any event, there is ample evidence for us to form our own view consistently with the principles limiting appellate intervention in that respect: see Humphries and Wilson. To the extent the Commissioner concluded otherwise, we do not consider that such a finding was reasonably open to him and was most improbable. 54 Before summarising the relevant evidence in this regard, we would observe that Mr Clark (the investigator) described the contact made by the respondent as "a violent blow to the left shoulder". As was apparent from the evidence of the other witnesses, no one else described it in these somewhat elevated terms. However, notwithstanding Mr Clark's unfortunate expression, it is clear that the case before the Commissioner did not proceed on the premise that the contact was a "violent blow". It was variously described as a "hit", a "forceful slap", a "strike", a "shove" or a "tap". We consider, in the circumstances of how the case unfolded, that nothing turns on Mr Clark's use of words. Nor do we consider that any issue arises as to the form of the charges laid. No such issue was, in fact, ventilated by the respondent. We would stress however, that, a failure to establish charges actually laid against an employee (where formal charges are laid) might result in a legitimate claim of procedural unfairness, particularly if the defence of the allegation proceeds on a substantially different basis to the actual charge. 55 Turning then to the evidence, Mr Speering said that after a brief exchange with the respondent, the respondent hit him on the left shoulder with sufficient force as to knock him off balance while he was cradling Ms Wykes' head. The respondent had then stormed off. Mr Speering was approached by Mr Smith who had complained about the respondent's behaviour. Mr Speering's version of the incident was consistent with his statement to the Police later that night, in his record of interview with Mr Clark and in his evidence before the Commissioner. 56 Mr Fifield-Smith said in his police statement that he saw the respondent become very angry after his exchange with Mr Speering. The respondent then hit Mr Speering on the left shoulder. Mr Speering had appeared to be in shock and stunned. In his interview with Mr Clark, Mr Fifield-Smith described the respondent as very angry and he witnessed the respondent strike Mr Speering on the shoulder in a heavy manner. He also told Mr Clark he had observed the respondent first lightly place his hand on Mr Speering's shoulder then hit him. 57 Mr Colin Smith said that the respondent swore and he saw the respondent clip Mr Speering on the shoulder / head area, enough to move his head. Mr Smith also said he had a verbal confrontation with the respondent immediately after the incident and saw him do a U turn and cross the median strip. Mr Smith told another ambulance officer, Mr Lowe, who had arrived at the scene that the respondent had hit Mr Speering. 58 Ms Amy Wykes did not actually see the assault but gave evidence that she heard a person in an angry voice say something in an aggressive tone to the officer treating her. She then felt a jolt and her neck moved. Mr Speering had said "Did you see that, did you see that he hit me?" This was evidence corroborative of the appellant's contentions which, without proper reason, was rejected by the Commissioner. 59 Against this evidence was that of the respondent and Senior Constable Phillips. The respondent denied assaulting Mr Speering. He acknowledged tapping him on the shoulder to get his attention. He said it was Mr Speering who became aggressive. The respondent acknowledged a verbal exchange with Mr Smith. 60 Senior Constable Phillips, who was directing traffic a short distance away, said he did not see the respondent strike or punch either officer and no officer reported an assault to him. He did recall an officer say "Did you see that?" Senior Constable Phillips further said that if the assault had occurred he would have seen it.

61 As to Senior Constable Phillips' evidence, we do not believe that his version of events was able to support a conclusion that no assault had occurred. Rather than being a direct eyewitness, Senior Constable Phillips deduced that no assault had taken place by saying that had there been one, he would have seen it. Reasonable doubt must have existed however, as to the accuracy of that assessment when derived in this way. The Senior Constable gave a similar answer to the question whether the respondent had left the scene by crossing the median strip. His evidence was he had not seen this occur and if it had, he would have seen it and, moreover, he would have chipped the respondent for driving over the median strip. However, there was no dispute in the proceedings that this is precisely what had occurred, and that, therefore, the Senior Constable was mistaken in his assessment in this respect.

62 It must be remembered that Senior Constable Phillips was a little distance away from the injured Ms Wykes and was engaged in directing traffic. It cannot be said that he was exclusively focussed on the injury scene. Viewed in the light of the direct eyewitness accounts of the appellant's witnesses, we do not see how the Senior Constable's evidence could significantly corroborate the respondent's version of events as the Commissioner apparently found at first instance. 63 When balanced against the evidence of Mr Speering, and the corroborative evidence of Mr Fifield-Smith, Mr Colin Smith and Ms Wykes, the evidence of the respondent that he merely "tapped" Mr Speering's shoulder to gain his attention is not credible and cannot be accepted. We also consider the respondent's evidence that he was not angry, did not swear at Mr Smith and did not drive off in an erratic manner after the incident as being inconsistent with the evidence of the appellant's witnesses and the objective or uncontested evidence as to how the respondent actually left the scene of the accident. This lends further support to the conclusion that the respondent had embarked upon an angry exchange with Mr Speering. We also do not accept the respondent's contentions that he had phoned his superiors shortly after the incident because he was concerned Mr Speering would make a complaint about him. We consider that this action was consistent with someone wishing to get his side of the story in first, knowing that Mr Speeing had a first hand civilian witness to the assault.

64 When the weight of evidence is examined, albeit, in short form as we have summarised above, we consider that is was not reasonably open for the Commissioner to reach a conclusion in favour of the respondent's version of events. Moreover, the objective evidence, particularly that of Mr Colin Smith and Ms Wykes, and even allowing for some minor discrepancies in their evidence, cannot lead to any other conclusion than the respondent had hit Mr Speering with sufficient force as to cause a jolt felt by Ms Wykes. As we have said, we do not accept the respondent's contention that he merely "tapped" Mr Speering's shoulder to gain his attention. We find the allegation of misconduct against the respondent proven.

65 It is not strictly necessary to refer to the apparent conflict in the evidence of Mr Fifield-Smith and Mr Stevenson. We note however, that the Commissioner did not rely on Mr Stevenson's evidence, but rather expressed "doubts" about Mr Fifield-Smith's overall evidence in light of his evidence in cross-examination about the race track conversation. We think it a very long bow indeed to impugn Mr Fifield-Smith's evidence as to the assault on the basis of answers he gave about the race track conversation which did not, in any event, contradict his evidence as to the incident itself and where the evidence as to what had occurred there was not relied upon by the Commissioner in reaching a conclusion. Moreover, there was no suggestion that a credit finding against Mr Fifield-Smith was made by the Commissioner. In addition, we feel bound to observe that the means by which Mr Stevenson's evidence came to be admitted in the proceedings at all was highly problematic. 66 In view of our disposition of the appeal, it is also unnecessary to refer to the other concerns raised by the appellant as to the unsuitability of the respondent to be reinstated or re-employed to the Ambulance Service. Nor is it necessary to reach conclusions as to the allegations of prior misbehaviour by the respondent. ORDERS 67 We make the following orders:

Leave to appeal is granted;
The appeal is upheld;

The decision and orders of Macdonald C of 31 May 2006 in matter number 7122 of 2004 are quashed;

The stay of the orders made by Sams DP on 6 July 2006 is dissolved save as to order 3.

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.

Workplace Relations Act 1996(Cth)

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