Austin v NF Importers Pty Ltd & Anor

LEGISLATION CITED: Industrial Relations Act 1996

Austin v NF Importers Pty Ltd & Anor (2005) 146 IR 113 Bellambi Bowling Recreation and Sports Club Ltd v Grammel (2001) 107 IR 104 Box Valley Pty Ltd v Price (2000) 97 IR 484 CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336 Burgess and Others v Mount Thorley Operations Pty Limited [2002] 119 IR 52 John Buchtmann v Ambulance Service of New South Wales [2006] NSWIRComm 1052 Kelso Builders Supplies Pty Ltd and Wei Hua Huang [2004] NSWIRComm 388 NSW Department of Education and Training v NSW Teachers Federation (on behalf of Mossfield) [2006] NSWIRComm 210

APPELLANT Ms E Brus of counsel Instructed by: Ambulance Service of New South Wales LEGAL REPRESENTATIVES: RESPONDENT Mr J Murphy of counsel Union: Health Services Union

• 10 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM : SAMS, DP 6 July, 2006 Matter IRC06/2520 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 31/5/06 in Matter IRC04/7122

1 Pursuant to ss 187 and 188 of the Industrial Relations Act 1996 ('the Act') the Ambulance Service of New South Wales ('the appellant') filed an application for leave to appeal, and if leave be granted, appeal against a decision and orders of Commissioner Macdonald given on 31 May, 2006 in John Buchtmann v Ambulance Service of New South Wales [2006] NSWIRComm 1052. 2 The substantive appeal was filed on 16 June, 2006. This decision deals with an application by the appellant for a stay of the Commissioner's decision and orders pending the outcome of the appeal. 3 The decision and orders under appeal determined an application by Mr John Buchtmann ('the respondent'), pursuant to Pt 6 ch 2 of the Act, for reinstatement and payment of lost earnings following his alleged dismissal for misconduct on 18 November 2004. 4 Shortly stated, the Commissioner found that the misconduct alleged against the respondent had not been proven, his dismissal was therefore unjust and he should be reinstated and paid half of the amount he would have received had he not been dismissed.

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.

15 The appellant contended that the Commissioner's decision raised the following questions:

Whether the Commissioner erred in determining that the appellant was required to adduce "substantive" evidence of an assault.

Whether the Commissioner erred in not identifying those parts of the appellant's evidence that were required that were not "substantive" as apparently required.

Whether the Commissioner erred in assessing that the evidence before him was insufficient to meet the relevant standard of proof as per Briginshaw v Briginshaw (1938) 60 CLR 336.

Whether the Commissioner erred in misapplying the relevant standard of proof.

Whether the Commissioner erred in failing to give any consideration or to make any findings in respect of the evidence of witness Anthony Hardy as to the previous conduct of Mr Buchtmann. 16 The reasons why leave to appeal should be granted were stated as:

1. The appeal raises issues of public importance in that it deals with the legitimate expectation that persons employed within the Ambulance Service of New South Wales will not conduct themselves in such a way as to threaten or potentially threaten the well being of clients and/or other employees.

2. There is a public interest in the Commission exercising its discretion correctly when applying the appropriate standard of proof required of an employer to establish an act of misconduct.

3. The appeal raises an issue of public interest in that there is a legitimate expectation that the Commission will give consideration to all of the evidence before it, including evidence concerning previous similar misconduct by Mr Buchtmann.

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

23 Mr Murphy of counsel submitted that this appeal was nothing more than an attempt by a dissatisfied litigant to rerun the case which it had lost. The appeal does not raise any matters of importance or substance and would not even attract leave to appeal being granted. 24 Mr Murphy put that the use of the term "substantive" evidence by the Commissioner is entirely consistent with the Briginshaw v Briginshaw test. The approach in Briginshaw is that reasonable satisfaction needs to be achieved and that cannot be achieved by inexact proof or indirect inferences. 25 Mr Murphy said that no error of fact or law could be found in the Commissioner's decision. The Commissioner had carefully assessed all of the relevant witness evidence and made findings of fact. It was not correct, Mr Murphy said, to suggest that the Commissioner had ignored the evidence of one of the witnesses, because he did not find it necessary to make findings on that evidence. 26 As to the respondent not seeking alternative employment since his dismissal, Mr Murphy submitted that all his focus was on being reinstated to the only job he had known for 23 years. He should not be barred from being entitled to the "fruits of his success". 27 As to the matter of the recent Rescue Board inquiry, this matter was as trivial as the other allegations of seeking approval for secondary employment. It demonstrates a pattern of conduct by the employer of denying the respondent procedural fairness and "trawling around" for trivial issues to use against him. The only reference to him in Ex "1" was a taped telephone conversation. Mr Murphy said that all this involved was the applicant saying "bloody bullshit" to a telephone operator. 28 Mr Murphy submitted that the application for a stay should be refused as no case had been made out. There was no reason why the respondent could not be returned to his former role or some other non contact administrative role with the Service. Relevant principles

29 The principles to be applied by the Commission in an application for a stay of an appealed decision are helpfully set out in Burgess and Others v Mount Thorley Operations Pty Limited [2002] 119 IR 52. At paras 19 and 20 his Honour the Vice President said: 19 The principles which govern the exercise of discretion in considering an application for a stay in appeal proceedings have been elucidated in two comparatively recent decisions: Re Transport Industry - Waste Collection and Recycling (State) Award (2000) 102 IR 192 and Campbells Cash & Carry v National Union of Workers, New South Wales Branch (2001) 104 IR 400. The appellant is required to establish or demonstrate a sufficient and proper basis for a stay. The decision as to whether to grant a stay is a discretionary one, to be made by the Court after considering, among other factors, the balance of convenience and the rights of the parties. In certain cases, it may be appropriate to consider (as a very preliminary assessment) whether an appellant has a reasonably arguable ground of appeal or whether there is a serious question to be tried. 20 I respectfully agree with the following principles which were succinctly stated in Re Transport Industry at [19]: [19] I consider that the following considerations derived from the discussion in the Cambridge Credit case are those relevant to apply in this matter:

(1) The mere filing of an appeal will not of itself provide a reason or demonstrate an appropriate case nor will it discharge the onus which the applicant bears.

(2) A court has an appropriate discretion whether or not to grant the stay and as to the terms that would be fair if a stay be granted.

(3) The onus is upon the applicant for a stay to demonstrate a proper basis for a stay that will be fair to all the parties.

(4) In the exercise of its discretion all considerations including the balance of convenience and the competing rights of the parties need to be considered and weighed.

(5) Where there is a risk that the appeal will prove abortive or nugatory if the stay is not granted then the normal exercise of discretion will result in the grant of a stay.

(6) Although, generally speaking, it is inappropriate in relation to an application for a stay to speculate as to the appellant's prospects of success, this does not prevent a court, in the context of considering the specific terms of the stay that will appropriately and fairly adjust the interests of the parties, from making a preliminary assessment as to whether the appellant has an arguable case. 30 I shall similarly apply these principles to the determination of this stay application.

31 In this case the onus rests with the appellant to demonstrate why a stay, which is fair to all parties, should be granted, given the particular circumstances which arise for consideration in the appeal. On one view, the Commissioner's decision might be said to be a relatively orthodox exercise of balancing the competing evidence and making particular findings of fact. Ordinarily, such an exercise would not be a sufficient basis for the grant of leave to appeal, notwithstanding that an appeal Bench might come to a different conclusion of the evidence to that of the original decision maker. It is only in circumstances where the findings of the first instance decision maker are plainly wrong or not open on the evidence, that an appellant Bench would intervene. See Box Valley Pty Ltd v Price (2000) 97 IR 484, Austin v NF Importers Pty Ltd & Anor (2005) 146 IR 113 and NSW Department of Education and Training v NSW Teachers Federation (on behalf of Mossfield) [2006] NSWIRComm 210.

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

1. Orders (a) (b) and (d) made by Commissioner Macdonald on 31 May 2006 in matter 7122 of 2004 be stayed until further order of the Commission.

2. The appellant, the Ambulance Service of New South Wales shall pay to the respondent, Mr John Buchtmann the amount in order (c) of Commissioner Macdonald's orders of 31 May 2006 within 7 days.

3. In the event of the appeal succeeding, the respondent shall repay this sum.

4. The appeal file is remitted to His Honour the President for further programming. Peter J Sams, AM Deputy President

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.