Department of Health v Kaplan

Department of Health v Kaplan - [2010] NSWIRComm 170 - NSWIRComm 2010 case summary — Zoe

[12]

DECISION OF THE COMMISSION [2010] NSWIRComm 170 1 The factual background to this matter is set out in the Full Bench decision of 28 May 2010 in Department of Health v Perihan Kaplan (No 1) [2010] NSWIRComm 65 ('Kaplan No 1 '). 2 In that decision, the Full Bench rejected a challenge to the finding of harshness made by Ritchie C in Kaplan v Department of Health Support Service [2009] NSWIRComm 1088. However, the Full Bench found errors of law with respect to the Commissioner's determination under s 89 of the Industrial Relation Act 1996 ('the Act') and upheld the appeal in that respect. 3 The Full Bench's approach to the disposition of the matter in Kaplan No 1 was as follows: 46 Having regard to the lengthy history of the proceedings, the continuance of orders requiring payment of wages to the respondent until the disposition of the appeal and the relatively complete state of the evidence as to the question of "impracticability", we have decided not to remit the matter and will determine, for ourselves, (as the parties accepted might be open) the appropriate orders to be made in disposition of the appeal. 4 Following that decision, the parties undertook, by consent, a conciliation before a Member of the Full Bench. Subsequent to that conciliation, the appellant sought leave to discontinue the appeal proceedings. That application failed: Department of Health v Perihan Kaplan (No 2) [2010] NSWIRComm 122 ('Kaplan No 2'). The Full Bench in Kaplan No 2 then determined the further conduct of the proceedings as follows: 16 The last issue concerns the process required to conclude the appeal. The appellant has failed in its challenge to the finding that the dismissal was harsh and the parties were proposing to address the issue of appropriate remedies when conciliation, by agreement, was taken up. If any further brief written submissions are required in relation to this issue, the appellant shall file and serve such submissions within seven days of the delivery of this judgment and the respondent shall have a further seven days to file and serve her submissions regarding that issue. The Full Bench will contact the parties to arrange a brief hearing to address this issue if the parties express in writing their desire to do so, otherwise the issue will be dealt with on the written submissions filed and served by the parties. 5 In the result, the parties filed further written submissions. In those submissions an application was made by the appellant to admit fresh evidence. At the request of the appellant, the Full Bench heard the parties as to the balance of the appeal and the motion to call fresh evidence in a short oral hearing on 14 October 2010. This decision concerns the matters so reserved for attention in Kaplan Nos 1 and 2. 6 During the course of the argument as to the appropriate remedy, the parties put various submissions as to the power of the Full Bench to award reinstatement or re-employment in these proceedings. It is, however, unnecessary for us to resolve these questions as, in our view, the only available conclusion which may be reached, on the evidence in the proceedings, is that reinstatement and re-employment are impracticable and, hence, remedies are not available under ss 89(1) or (2) of the Act. We have, in that context, decided not to grant leave to admit fresh evidence. It is convenient to provide our reasons for that later decision before moving to the reasons for our conclusion as to "impracticability". FRESH EVIDENCE

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7 By Notice of Motion, the appellant sought leave of the Full Bench to call fresh evidence on appeal. That evidence was contained in an affidavit sworn by Mr Cook. Briefly, the affidavit concerned a so called 'Heads of Agreement' between the parties, costs and proceedings in the Local Court of NSW as to an Apprehended Personal Violence Order ('APVO'). 8 The appellant put the following submissions in relation to the application to call fresh evidence: 6. The further evidence goes entirely to events occurring later in time than the date of the decision appealed against. 7. The further evidence goes an agreement reached in June 2010 between the parties that resulted in, inter alia, the reinstatement of the Respondent and the payment of certain monies. 8. This Agreement has been subject to controversy in relation to costs. It has not been controversial as to the reinstatement and immediate voluntary redundancy of the Respondent, and subsequent payments made to the Respondent. 9. The further evidence also goes to the practicability of reinstatement and the Respondent's characterisation of these proceedings. The characterisation is material to the Full Bench's consideration of whether reinstatement is likely to impose unacceptable problems or embarrassments, or seriously affect productivity, or harmony within the employer's business" Nicolson v Heaven & Earth Gallery (1994) 57 IR 50 at [61] or "whether [this particular] employment relationship is capable of withstanding some frictions and doubts" Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at [191]. 10. It also evidences ongoing legal proceedings in another jurisdiction in relation to an APVO. The existence of these proceedings (as opposed to the matters in contest) are material to the Full Bench's consideration of the practicability of reinstatement. 11. The evidence therefore satisfies the discrete statutory test of dealing with matters later in time than the decision appealed against. It was demonstrably not available at the time of the decision below being made. 12. Further, the evidence has, in circumstances where the Full Bench is proposing to determine the outcome of the s.84 application for itself and there is a sufficient degree of probability to have an impact on the final verdict: NSW Local Government Clerical Union v MM Kembla Products (2004) 138 IR 217 at 218; Austeck v Astalos (2003) 128 IR 141. 13. It is expressly not required that the evidence must mean that a different verdict would be reached; CCH Australia v Bowen (1998) 79 IR 206 at 211. The test is that it must have a capacity to impact on the verdict, and that capacity to affect is certainly the case here. The Full Bench, if it did come to considering what, if any, remedy might now be appropriate would have to at the least have regard to and deal with the facts disclosed in the evidence; in that circumstance those facts might well affect the outcome. 14. The evidence also satisfies the discrete test of 'special grounds'. 15. While the general principles going to 'special grounds' are guides ( Scevola v Workcover NSW (2005) 142 IR 233 at 240) and need not be satisfied in all cases ( Wilson v The Prothonotary [2000] NSWCA 23 at [47], cited and adopted in Scevola loc cit), those principles are: that the evidence must not have been able to be brought with reasonable diligence at first instance; that it must have sufficient degree of probability to have an impact on the final verdict; and that it must be credible. 16. It is already apparent that the first of those limbs is satisfied. The evidence is only sought to be adduced now because it did not exist before, and refers to events after the decision. It has a capacity to affect the outcome: as submitted above, it must be a consideration, at least, for a tribunal considering whether a re-establishment of an employment relationship. 17. It is apparent enough that the evidence is credible; it consists essentially of a written agreement, correspondence and a sworn court document.

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15 In relation to the first allegation, the Commissioner concluded, at [113]: 113 The first allegation was that which occurred on 8 October between the applicant, Ms Summers and Zaba. In reviewing the evidence with respect to this matter it would seem that it was not the raising of her voice by the applicant but the questioning by the applicant as to Ms Summers competency to do the job that Ms Summers objected to. I note the evidence of Ms Teoman when she stated that a Turkish speaker with a restricted command of English, will sound abrupt and inappropriate and also the evidence of Ms Ibrahim who acknowledged that the applicant sometimes too much speaks her mind. The alleged comment made by the applicant to Ms Summers to the effect that "she took her job" would not have sat well with a new incoming person. Whilst the applicant may not have wished to project herself during this conversation in an off putting manner which resulted in Ms Summers being upset, the result on this occasion was that Ms Summers with Mr Zabel reported the matter to Mr Wragg. Notably it was the first time in her employment with the respondent that Ms Summers had reported a fellow employee. At this point the respondent failed to adhere to the "Framework For Managing The Disciplinary Process In NSW Health" in that neither Ms Summers or Mr Zabel were required to complete a statement detailing what was alleged by whom, how it was said and where it was said. Having not generated such documents which would have then been provided to the applicant so as she was aware at first instant as to what was being alleged, was unfair on the applicant. The subsequent interview of the applicant with respect to this allegation was based on brief notes that Mr Wragg had jotted down as a consequence of speaking to Ms Summers and Mr Zabel. It was also inappropriate for Mr Wragg to be involved in the interview of the applicant when he himself had raised an allegation that she had hung up on him during a phone conversation. Mr Wragg should not have had anything to do with the applicant with respect to the 8 October investigation. It was raised by the applicant that another employee by the name of John may have overheard the conversation yet no attempt was made by the respondent to investigate this aspect. The non-appearance by Mr Zaba in these proceedings, an obvious witness to the 8 October exchange, is somewhat perplexing. I do not accept Mr Easton's submission that his evidence would not have added anything more. On the contrary his evidence of what he saw and heard on that day would have been beneficial to the Commission. Whilst I note that this incident by itself would not have resulted in a termination of the applicant I do not believe I can make a positive finding that the applicant sought to be intentionally aggressive towards Ms Summers.

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21 In Kaplan No 1, the findings by Ritchie C as to harshness were not disturbed by the Full Bench, which found (at [31] - [35]): 31 The Commissioner was entitled, on the evidence, to reach the conclusion that the respondent was "not in a mentally fit state to handle (the meeting of 1 December 2008) and, therefore, had a diminished responsibility for what she expressed during such a meeting". That conclusion was available on the medical evidence and the evidence otherwise available as to the respondent's state of mind in the weeks immediately preceding and at the meeting of 1 December 2008. It was also available to the Commissioner to take into account that the two incidents of inappropriate behaviour on 3 and 5 November 2008 by the respondent and the behaviour of the respondent on 1 December at the meeting convened by the appellant's officers, as he apparently did, represented conduct which was, to some extent, unusual or aberrant, having regard to the respondent's lengthy and incident free employment record prior to October 2008. These were mitigating circumstances which were required to be considered by the Commissioner. 32 In concluding whether the dismissal was harsh, the Commissioner had to balance these personal and mitigating considerations against the gravity of the misconduct. The Commissioner plainly undertook that task and properly had regard, in our view, to all relevant factors. 33 We consider that the Commissioner understood the seriousness of threats of harm being made by one employee to another and, in particular, the significance of an apparent threat to kill. In this respect, the principle stated in Bhattacharya v Director-General of the Department of Education of Training [2000] NSWCA 74 at [23] may be accepted but does not add greatly to the disposition of the appeal. The question the Commissioner had to answer was what was the gravity of that conduct, on the evidence before him at the hearing of the s 84 application. In that respect, the Commissioner was required to, as he did, make an assessment as to whether the respondent was incapable of rational behaviour at the time of the meeting, and to the extent that she was not, to take that into account in diminishing the severity of the conduct. It should be remembered that, absent the incident which occurred at that meeting, the employee would not have been summarily dismissed, although warnings had been issued and voluntary redundancy was under consideration. 34 We agree with the submission made by Mr R Reitano of counsel, for the respondent, that the character of the threat must be also judged against the fact that it was made at a meeting where the respondent was gravely distressed and where the person to whom the threat was apparently levelled was not present. In this respect as well, the Commissioner was entitled to have regard to the failure of the appellant to allow the respondent an opportunity to explain herself after the meeting of 1 December 2008, as a factor going to the harshness to the dismissal, albeit as a consideration of a procedural kind.

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25 Having reached those conclusion, the question arises as to whether the Commission should order compensation under s 89(5). 26 The appellant made the following submission in relation to the remedy of compensation: 17. The only available remedy in the present matter is compensation under s89(5). 18. The matters identified in s89(6) are not necessarily to be reflected in any particular, arithmetic or definitive way in the money order for compensation made: D and R Commercial Pty Ltd v Floo d (2002) 113 IR 344 at [64]. 19. If the Full Bench were of a mind to award compensation it would be in the lower range because of the nature of Ms Kaplan's conduct as found by Commissioner Ritchie. The Appellant does not need to recite again the unsatisfactory aspects of the Respondent's conduct. 20. Whilst Commissioner Ritchie ultimately found that the dismissal was harsh, the degree of harshness (which must now properly be assessed objectively by the Full Bench) is not high. 21. The allegations were serious, the conduct unsatisfactory and the compensation should not be large (despite the harshness of the dismissal itself). 22. Further, the Appellant submits that any compensation contemplated would be discounted by payments made to Ms Kaplan since her termination. Ms Kaplan has been paid significant sums of money by the Appellant by way of an agreement reached in 2010. 23. The Appellant concedes that Mr Cook's affidavit would only be before the Full Bench by leave under s191(2). However, if leave not be granted, the Appellant submits that the Commission is also informed of the payments made to the Respondent by way of: a. Its knowledge of the terms of the stay order granted by consent on 30 November 2009; and b. Its knowledge of the Heads of Agreement document signed by the parties in June 2010 (notwithstanding the controversy between the parties as to some aspects of the agreement). 24. The Appellant would be pleased to attend a hearing to address any matters sought by the Full Bench but does not otherwise, subject to receiving the submissions of the Respondent, seek a further hearing.

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Also medical evidence would have to be provided by the applicant during the period since termination in consideration of the back pay quantum, and if there was any workers compensation involved plus a medical clearance to return to work. 29 Reference should also be made to the terms of the Stay Order made on 30 November 2009 which was in the following terms:

That the Orders made on 10 November 2009 in Kaplan v Dept of Health Support Service [2009] NSWIRComm 1088 be stayed pending the hearing and determination of this appeal;
That the appellant pay the respondent her normal wages from 1 December 2009 until the hearing and determination of this appeal;
That the appellant shall make no claim against the respondent for the repayment of any wages paid pursuant to Order 2 irrespective of the outcome of this appeal;
That Order 3 shall cease to apply should the respondent, or her legal representatives, unreasonably cause the hearing of this appeal to be delayed, including as a result of acts or omissions. 30 In the absence of some contention under cl 3 of those Orders of 30 November 2009, we do not consider that the payments made to the respondent pursuant to those Orders should result in any discount or adjustment under s 89(6). Nor is there any necessary basis to discount such Orders in the ordinary course. Each case will need to be evaluated on its own merits. 31 We do not, however, express any view as to how the sum of compensation we will order should be assessed in any proceedings between the parties as to their alleged 'Heads of Agreement'. We have simply decided not to take that matter into account. 32 There is no other evidence before us as would warrant a discount under s 89(6). Having regard to our prior finding regarding harshness, we consider that the maximum available compensation should be ordered and, accordingly, we will order the appellant to pay the respondent an amount of compensation equal to the amount of remuneration earned by the respondent during the six months immediately before her dismissal.

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