Amy Lan and Sancy Fashions Pty Ltd [1994] IRCA 142

Incident on 18 October 1994 The applicant's superior was the co-ordinator of the respondent, Mrs Watts ("Watts"). She is highly qualified and experienced in the field and was an impressive witness. Around 3.45pm on 18 October both the applicant and Watts were approaching the kitchen-living area of the house where the applicant was the supervisor. As each entered the kitchen area from different directions Watts observed a resident standing in the kitchen partially naked. She made a comment to this effect to the applicant. When the applicant saw the resident she observed that his cheeks were inflated and she formed the opinion that he had stuffed his mouth full of chocolate almonds which had been left in the kitchen area for staff by one of the parents. She formed the view that he was in danger of choking. Evidence was led that with the particular disability suffered by the resident, his swallowing action was impaired and it was necessary for his food to be chopped up. She rushed towards the resident to seek to remove the items from his mouth. To do this she placed her left hand on his chin area and when he resisted she then removed the chocolate from his mouth using the fingers of her right hand. She is left handed. She called him a naughty boy, washed her hands and took him to his room to dress him. Watts' version of the events is different. She says that as the applicant approached the resident she observed her bring back her right hand and move it in a slapping movement towards the left upper thigh and buttock area of the resident. When the hand was an inch or two away from the skin her attention was diverted. At that moment she heard a sound like a slap. She then observed the applicant removing something from the resident's mouth and saw her take him to his room. At that point a number of residents and staff entered the room. She made no comment to the applicant at this time and took no action to help the applicant with the resident. At the time she was leaving work to go to a meeting, and a short time later she said goodbye to the applicant and left. She did not examine the resident and admitted in cross-examination that she did not know what effect the slap had on him. Watts could not believe what she had observed as, on the uncontested evidence of all parties, for a person in a position of either the applicant or Watts to slap a resident is an act of grave misconduct. She considered the matter all the next day to convince herself that she had seen the applicant actually slap the resident. In the end she convinced herself that an act of grave misconduct had occurred, and her responsibility to the residents directed her to take the matter further. She sought advice and completed an incident report. She also spoke to members of the Board of Management and sought their advice. She determined to seek to invite the applicant to state her side of the story. Late on the Thursday afternoon, 20 October, she rang the applicant, who was due to resume work the following day, after having had two rostered days off, and invited the applicant to a meeting the next day at 11am. She did not say why she wanted the meeting. The applicant asked her whether it was about what had happened the day before, but Watts said that she did not want to discuss the matter on the phone. The applicant was surprised at the phone call. She thought that it must have been a reference to the incident the day before. To prepare herself for the meeting she prepared two documents about the incident with the resident, defending the action that she took in relation to removing the chocolates from the resident's mouth. The applicant's explanation for preparing the written document goes back to an earlier incident between Watts and the applicant. This occurred in January 1993 and relates to a difference of opinion in relation to the applicant's duties. At that time the applicant had to go on leave and certain difficulties occurred while she was On leave. These were brought to the applicant's attention by Watts in a handwritten memorandum. In response to that memorandum the applicant produced a typewritten response denying all the allegations. This matter was not the subject of any formal disciplinary proceeding. A meeting occurred between the applicant and Watts on 21 October. The applicant had been invited to bring a witness, which she did, and another staff member was present also. In the course of that meeting Watts put to the applicant a number of times that she had in fact slapped the resident. The applicant was stunned by the allegation and denied it. In the course of that meeting the applicant tendered to Watts her two written statements about the chocolate removal incident and continued to deny any slapping. After the allegation in relation to the slapping there was a discussion between the two parties as to the consequences of a finding of misconduct. In view of the seriousness of the matter, Watts determined to summarily terminate the applicant. The applicant asked Watts to have the opportunity to have the matter dealt with by the Board of Management. After some hesitation Watts agreed. After her termination the applicant approached the parents of the resident and sought to meet them at their home. She met them at their home and gave her version of events. The parents accepted her version of events and both addressed the Board meeting which took place on 24 October. The father of the resident also gave evidence in these proceedings. His evidence was that he had known the applicant for three years in her duties with the respondent looking after his 43 year old son. He saw her 3 to 4 days a week and had no hesitation in accepting her denial of the allegation made against her. He also gave evidence that he had observed her as a very caring individual in the course of her duties. This was also the evidence of Watts, and also Ms Young, the chairperson of the Board of the respondent. Issues in the Case The parties agreed that a central issue which must be determined in this case is whether the applicant slapped the resident on 18 October. If so, the respondent had a valid reason for terminating her employment under section 170DE(1) of the Act. The resolution of this issue requires the court to determine for itself on the material before it whether the allegation is made out. The standard of proof which is required in a case such as this has been set out in the High Court decision of Briginshaw v Briginshaw (1938) 60 CLR 336. That decision was referred to in the decision of Lowe v ACL Bearing Company (Industrial Relations Court of Australia,15 February 1995, Ryan JR). The relevant test of Dixon J in Briginshaw (at 362) is as follows: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issues have been proved to the reasonable satisfaction of the tribunal. In such matters, "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. The employer respondent in this case carries the onus of proof under section 170EDA of the Act. The allegation to be determined in this matter is serious, particularly in the context of the obligations of staff of the respondent, as detailed under the Disability Services Act, and the relevant procedures manual of the respondent. I am faced with competing testimony from two impressive witnesses who both struck me as dedicated professionals discharging responsibilities and duties of a most sensitive, important and onerous kind. In applying what is known as the shifting standard of proof, I am mindful of the following. It is a very serious allegation which must be made out here. It is an allegation which on the common view of the evidence would be out of character with the applicant. The act was undertaken in the full view of her superior. I have formed the view that I could not be satisfied in fact that the applicant slapped the resident, and that Watts must be mistaken when she formed that view. My reasons include the lack of any corroborating evidence in the face of the conflicting oral testimony, and the action of Watts herself. She took no action immediately after she observed the alleged slap. She made no attempt to observe the resident, and there was no evidence that he was in distress. If the resident had been slapped one may have expected a reaction from him. There was no evidence that he cried or otherwise appeared in distress as a result of what on the evidence must have been a most unexpected act on the part of the applicant. Further, the applicant is left-handed. This fact alone would make it unlikely that she would slap or strike him with her right hand. On Watts' own version she did not see the hand actually strike the resident. It is also important that the applicant gave evidence that she was in a sense acting in an emergency situation here to prevent the applicant choking, and this creates a further source of doubt. All this leads the Court to having a lack of satisfaction that the allegation is made out. I am fortified in my conclusion by the character evidence about the applicant by the father of the resident, and by the reaction of Ms Young. Also the fact that it took Watts at least a day to convince herself that this incident occurred. I therefore conclude that the respondent has failed to discharge its onus of proof that there has been a breach of section 170DE(1) of the Act. This conclusion makes it unnecessary for me to consider the other arguments of the applicant that there has been a denial of procedural fairness in what happened here. I should say that I was impressed by the procedure of the respondent. There is no doubt that the decision was taken after due consideration of its seriousness. I am satisfied that the Board of the respondent proceeded upon a mistake which must now be rectified by the Court in considering the remedy. Remedy In the recent decision of Liddell v Lemke (1994) 127 ALR 342 the Court has indicated that reinstatement is the primary remedy under the Act unless it is impracticable. The evidence of Watts on this issue is generous and important. She was courageous enough to say that, in the event that the Court took a different view from her of this incident, then as a professional she would work through the matter in a professional manner with the applicant. I have no doubt that this is the case and I propose to order reinstatement. The applicant also claimed loss of remuneration. The amount of her lost remuneration has not been specified to me, although she did give some evidence that she has achieved some earnings. I propose to order that she be paid her loss of remuneration, taking into account the amount of her earnings. I also propose to order that she be treated as having no loss of seniority. Order of the Court: 1. that the respondent re-employ the applicant in her former position; 2. that the respondent pay to the applicant her loss of remuneration to date, less any amount of her earnings to date, within 14 days; 3. that the period from the date of termination to date be treated for all purposes as continuous employment. I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy. Associate: Dated: 7 April 1995 Solicitors for the Applicant: Cohen Woolf & Weinberg Counsel for the Applicant: Mr N Rattray Solicitors for the Respondent: Mr Michael P Rahilly Counsel for the Respondent: Mr M Rahilly Date of hearing: 23, 24 March 1995 Date of judgment: 24 March 1995