Bench v NRMA Limited

LEGISLATION CITED: Industrial Relations Act 1996 s 84 s 89

Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 CASES CITED: Bench v NRMA [2006] NSWIRComm 1133 Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 Port Macquarie Golf Club v Stead (1996) 64 IR 53 at 60

HEARING DATES: 14/02/2007 EXTEMPORE JUDGMENT DATE: 14 February 2007

APPELLANT: Mr M Gibian of counsel John F Morrissey & Company, Solicitors (Mr S Morrissey) LEGAL REPRESENTATIVES: RESPONDENT: Mr T Saunders of counsel Eakin McCaffery Cox, Solicitors (Mr J Darams)

CORAM: WRIGHT J, President GRAYSON DP RITCHIE C

CRAIG BENCH AND NATIONAL ROADS AND MOTORISTS ASSOCIATION LIMITED

Application by Craig Bench for leave to appeal and appeal against a decision of Commissioner Cambridge given on 6 September 2006 in Matter No IRC 6703 of 2005

DECISION OF THE COMMISSION [2007] NSWIRComm 28 (Extempore)

1 The appellant Craig Bench seeks leave to appeal and, if leave is granted, appeals from the decision of Cambridge C given on 6 September 2006 in Bench v NRMA [2006] NSWIRComm 1133. 2 In that decision, given in proceedings brought pursuant to s 84 of the Industrial Relations Act 1996, the commissioner held that the appellant was unfairly dismissed from the respondent's employ. He declined, however, to order that the appellant be reinstated or re-employed ordering instead, that the respondent pay to the appellant an amount of $12,000 by way of compensation under s 89(5) of the statute. 3 In declining to order reinstatement or re-employment, the commissioner concluded that both would be impracticable and it is this conclusion which the appellant here seeks to challenge. The impugned decision

4 It is plain enough as we would read and understand the commissioner's decision, that the primary if not exclusive bases upon which the conclusion of impracticability was reached was the history of psychological illness from which the appellant had suffered since or about 1990 and the friction between the appellant and others in the workplace which appeared to the commissioner to be likely to recur. The psychological condition on the evidence before the commissioner, was exacerbated in August 2004 when the appellant was involved in a physical confrontation in the course of his duties as a patrol officer. 5 The commissioner described that incident in 2004, and correctly so in our view of the evidence below, as the starting point in the progressive deterioration in the employment relationship which culminated in the appellant's dismissal on 1 December 2005. That progressive deterioration took the form of an initial refusal on the appellant's part, to provide the respondent with details of the physical confrontation in August 2004 and we note in that regard, that the confrontation involved a motorist who was a member of the respondent who made a complaint about the actions of the appellant in relation to the incident in question. The commissioner described the aftermath of the incident this way: [8] ... Although the assault was duly and properly disposed of via the criminal proceedings, the difficulties, particularly in respect of communication between the applicant and the NRMA, were maintained, and in many respects expanded after eventual disposal of the assault proceedings. 6 It is unnecessary to recite the detail of the progressive deterioration in the employment relationship and the sequence of events which led to the appellant's dismissal except to say that it was characterised by what the commissioner came to accept as acrimonious and at times abusive conduct on the appellant's part towards those in supervisory and human resources positions with whom he came into contact. The appellant retained solicitors to act for him in matters being investigated by the respondent and he was throughout the relevant period leading up to his dismissal, in the care of medical practitioners for the treatment of his psychological illness. 7 It may be accepted, we consider, that the question of the viability of the employment relationship was a prominent feature of the commissioner's thinking and as much is apparent from the numerous references throughout the decision to the difficulties confronting the appellant in his application for relief by way of reinstatement or re-employment. The following passages from the decision below serve to illustrate these features: [17] The evidence of the chronology of events relating to the applicant's dismissal was well chronicled via the "paper war" that emerged between the applicant's solicitors and the NRMA. In broad terms the series of events that involved the process that led to the applicant's dismissal was not contested. The various documents that relate to the process by which the NRMA was investigating matters concerning the applicant's employment establish a clear and incontrovertible record of the sequence of relevant events.

[18] The evidence that has required more detailed examination related to the psychological state of the applicant both during the period up to dismissal, and subsequently including the date of Hearing. The applicant adduced evidence from two medical experts. In addition to the applicant being called as a witness, a Dr Thomas Oldtree Clark, the applicant's treating Psychiatrist, provided extensive evidence about the applicant's psychological state. The applicant also called a Mr Tim Watson-Munro, a Consultant Forensic Psychologist, who had examined the applicant and provided further expert medical evidence.

[19] The medical evidence provided by Dr Oldtree Clark and Mr Watson-Munro, confirmed the applicant's clinical history establishing his depression and the post traumatic stress disorder that arose following the workplace assault that occurred on 6 August 2004. Overall, the medical evidence has been strongly supportive for the applicant establishing that the NRMA did not have a proper regard for his psychological state, particularly, when it denied him the opportunity to be represented by his solicitor in meetings involving the investigation into aspects of his work performance and/or conduct.

[20] Further, although the medical evidence was on its face, very supportive of the applicant returning to work at the NRMA as part of some potential assistance for the recent improvement in the applicant's psychological disposition, the extent and nature of the applicant's psychological evidence has introduced certain concerns regarding the practicality of reinstatement. It is therefore perhaps ironic that the applicant's medical evidence might ultimately become something of a "doubled edged sword". Although this evidentiary material was very helpful in establishing the genuine psychological difficulties that were not properly appreciated by the NRMA, it also created clear impediments in respect of the prospect of reinstatement which was the applicant's desired outcome in these proceedings.

[21] A similar dilemma arose in respect of the applicant's contested evidence relating to, in particular, incidents where he was alleged to have sworn at and insulted his superiors. The applicant categorically denied using the language attributed to him by the relevant NRMA superiors. However when giving evidence about a variety of other contemporaneous events that coincided with the alleged swearing incidents, the applicant repeatedly acknowledged that he had significant memory difficulties.

[22] The contested evidence about the alleged swearing incidents was not vital to the determination of this matter particularly as the applicant's employment endured those events. However, the resolution of the contested evidence regarding the swearing incidents might represent further manifestation of the applicant's ongoing psychological difficulties. The applicant's evidence has consequently been treated with considerable caution. The Commission is cognisant of the sensitivity that should be applied to any detailed review of the applicant's testimony in circumstances where there were psychological issues that underpinned the applicant's case. The care that must be exercised when reviewing the applicant's testimony prevents a detailed critique. In the circumstances such a detailed examination is neither necessary nor desirable.

and later [47] However in the circumstances of this case the prospects for re-establishing any employment relationship are significantly impacted upon by two inter-related factors.

[48] Firstly, there was extensive medical evidence about the psychological problems that impeded the applicant from attending meetings and communicating with his employer in what would be considered the usual manner. Although Dr Oldtree Clark provided evidence that he thought that the applicant's psychological state had greatly improved, and that reinstatement or re-employment would be advantageous for the ongoing wellbeing of the applicant, there was further evidence of ongoing difficulty that the applicant exhibited in respect to his contemplation of the NRMA generally, and his immediate superiors specifically.

[49] Unfortunately, during the proceedings, certain aspects of the applicant's evidence and other non verbal responses revealed a troubling ongoing resentment of his former employer. Consequently, and notwithstanding that the applicant's treating Psychiatrist believed that his psychological state had stabilised, there appeared to be great potential for a return of the communication difficulties that had beset the employment circumstances during the last half of 2005. The applicant's residual animosity toward his employer represented clear basis for impracticality arising in respect to the re-establishment of any employment relationship.

[50] The evidence relating to the applicant's psychological difficulties inter-related with the most significant factual contest that was presented by the evidence. There were two separate incidents where the applicant was alleged to have sworn and insulted firstly Mr Heng, and then also Mr Fitisemanu. The applicant flatly denied the conduct that was alleged by Messrs Heng and Fitisemanu. Upon a careful examination of the contested evidence, the Commission is persuaded to adopt a preference for the evidence of Messrs Heng and Fitisemanu over that of the applicant.

[51] The Commission would hesitate to suggest that the applicant provided false evidence in respect of these particular factual contests. The applicant's admitted memory deficiencies may have operated such that he genuinely did not recall the detail of the two particular incidents where he insulted his superiors. Consequently the Commission would be greatly concerned to return the applicant to employment where there appeared to be considerable prospect for ongoing friction arising from conduct that the applicant may subsequently be unable to recall.

[52] Regrettably therefore even though the applicant was unfairly dismissed from employment that he had held for approximately nineteen years, the applicant's psychological state including his ongoing memory difficulties, combined with identified residual animosity towards the NRMA , provided, on balance, impracticality for re-establishment of the employment relationship in any form.

8 The law and practice governing the grant of leave to appeal in this jurisdiction was recently distilled by the Full Bench in Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263, where the Full Bench said: [5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5].

Notwithstanding the carefully made submissions of counsel for the appellant, we do not consider this appeal raises any issue of general principle. 9 Further and given, as is accepted here, that the part of the decision the focus of the appeal involved the exercise of discretion, the proper principles to be applied in such appeals are as set out in Port Macquarie Golf Club Limited v Stead (1996) 64 IR 53 at 60:

The proper approach as to the discretionary aspects required an appellate court not to reverse a decision of the trial judge on a matter involving the exercise of discretion unless it reaches a clear conclusion that the members of the appellate court would have taken a different view from that of the trial judge if they had been in his place and that the trial judge had failed to properly exercise the discretion committed to him: House v The King (1936) 55 CLR 499 at 504-505; Mace v Murray (1955) 92 CLR 370 at 378; Wilson v Gozney [1978] AR (NSW) 134 at 150; Baker [ v National Distribution Services Ltd (1993) 50 IR 254] at 267; and Haynes [ v C I & D Manufacturing Pty Ltd (1994) 60 IR 149] at 154.

See also these observations of the Full Bench in Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 392 - 393 as to the role of the Full Bench in appeals under the 1996 statute: However, this appeal bench should not substitute its own views as to a decision which was reasonably open at first instance. The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State. 10 The key feature of the appellant's case on appeal was that the commissioner's finding that reinstatement or re-employment of the appellant was impracticable was not open to him. We consider on reviewing the material that the commissioner was entitled to come to the view he did as to the impracticability of reinstatement and we can discern no error in the discretionary finding in that regard. The appellant claimed, for example, that the finding was not open to the commissioner because it was inconsistent with the medical and related evidence before him. We have considerable doubt whether the commissioner's finding was, in terms, inconsistent with the evidence relied on. In any event and as we have said, we consider that the finding made was open to the commissioner. 11 This is therefore not a matter in our opinion in which leave to appeal should be granted and it is accordingly refused. Orders

12 The orders of the Full Bench are: (1) Leave to appeal is refused. (2) The appeal is dismissed.

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