Austin v NF Importers Pty Ltd & Anor

Austin v NF Importers Pty Ltd & Anor - [2006] NSWIRComm 221 - NSWIRComm 2006 case summary — Zoe

[11]

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.

[28]

17 Ms Brus of counsel said this matter involved very serious misconduct related to the interaction between Ambulance Service employees and the potential risk to client care. 18 Nevertheless, Ms Brus sought a modified stay of the Commissioner's orders relying on the principles discussed in Kelso Builders Supplies Pty Ltd and Wei Hua Huang [2004] NSWIRComm 388 and Bellambi Bowling Recreation and Sports Club Ltd v Grammel (2001) 107 IR 104. She put that in balancing the interests of the parties, the Commission might order the payment of the monies ordered as back pay by the Commissioner, subject to these monies being repayable in the event the appeal is successful. However, as to the Commissioner's reinstatement order, the appellant strongly resisted reinstatement of the respondent in these stay proceedings. 19 Ms Brus submitted that there was a serious issue to be tried in the appeal; namely, whether the test required of the employer before dismissing an employee for misconduct, was one based on "substantive" evidence. 20 It was also put that the Commissioner had erred in that his findings of fact were seriously flawed and were not open on the evidence and that certain other relevant evidence was ignored and not considered. The appeal was therefore, one which was clearly arguable. 21 Ms Brus put that it was a relevant factor to consider in these stay proceedings that, at no time, since the respondent's dismissal had he sought alternative employment. He would therefore be no worse off if the stay on his reinstatement was granted. 22 Ms Brus tendered a document from the State Rescue Board of New South Wales dated 25 May 2006 (Ex "1") which referred to the respondent's suspension from the Volunteer Rescue Association pending an investigation into certain allegations made against him. This document had been obtained from the Board as the Ambulance Service is a member of that Board (as are all other emergency services). Ms Brus submitted that these new allegations were a further indication that it would be inappropriate to reinstate the respondent and that if these allegations are substantiated, it would be a matter to properly put before the Full Bench on appeal. For the respondent

[38]

32 Of course, I have not had the benefit of hearing the evidence of the witnesses and it would not be open for me to take a different view to that of the Commissioner in these preliminary proceedings. However, in reviewing the Commissioner's own assessment of the competing evidence, it does appear to me that there is at least some room to doubt that the relevant findings of fact were open on the evidence before him. 33 I am also satisfied that the appellant has raised a serious issue in this appeal concerning whether the standard of proof applicable in unfair dismissal cases extends to a requirement that there needs to be "substantive" evidence produced by an employer, for an allegation of assault by an employee to be proved. Given this matter, it cannot, in my opinion, be absolutely certain that the appellant has no prospects of success with the appeal. 34 Further, given the seriousness of the allegation against the respondent; namely, that he assaulted another ambulance officer during the course of his public duties and potentially risked the care of an injured client, I accept the appellant's contention that serious public interest considerations arise in this case. 35 The appellant also complains that there was other evidence before the Commissioner which dealt with the respondent's past conduct and which would appear from the Commissioner's decision that he didn't mention; let alone consider, or have regard to. 36 The appellant further argues that since the Commissioner's decision, the appellant has become aware that the respondent has been suspended from his duties as a Volunteer Rescue Officer and is subject to investigation for inappropriate and/or improper conduct similar to that which led to his termination by the Ambulance Service of New South Wales. It was said that in these circumstances, it would be contrary to the public interest for the respondent to be reinstated as an ambulance officer pending determination of this appeal. 37 While the nature of these allegations against the respondent are not entirely clear to me (and would amount to nothing if he is ultimately exonerated), I would concede that further allegations against him which have led to his suspension from the Volunteer Rescue Association, do ground some basis for the appellant's concerns which weighs the balance of convenience in its favour. 38 Ms Brus submitted that as the respondent has made no attempt to secure alternative employment since his dismissal (which I note was some 20 months ago), that he would be no worse off if he was not reinstated pending the outcome of the appeal. I accept Mr Murphy's argument that the respondent's focus has been on his reinstatement. Nevertheless, there is some force to Ms Brus's submission, particularly when considered in light of the appellant's concession concerning back pay and any other orders the Full Bench might make in the event the appeal is unsuccessful. 39 For all these reasons, I am satisfied that the appellant has demonstrated it has an arguable case and that the balance of convenience favours the granting of the stay on conditions. 40 The appellant conceded that in effectively balancing the interests of the parties in a fair and reasonable way, it would not oppose the payment of the amount of the back pay ordered by the Commissioner, subject to the amount being repaid if the appeal is successful. In this regard reference was had to Kelso and Bellambi. I note that there was no suggestion that the respondent would be unable to make such a repayment. I accept that in the interests of justice and in balancing the interests of the parties, this concession was appropriately made and the stay should be conditionally made on those terms. The appellant shall be required to pay the respondent the amount ordered by the Commissioner in order (c). If the appeal succeeds, the sum will be repayable. ORDERS

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Judgment (43 paragraphs)

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Cases Cited (9)

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