Department of Health v Perihan Kaplan

I believe that at that point after the meeting a general time out should have taken place. During the meeting the failure to follow the disciplinary procedures by the respondent had been raised and there had been put in place a process of providing the applicant with a copy of the written finding and other material and a time for the applicant to consider same and respond. This plus the opportunity for the applicant to respond to her outburst at the 1 December meeting should have taken place. I note that the email sent by the applicant to Mr Hall on 5 December starts with the sentence " Sorry about the other day" and includes "I lost it". Such a review of whatever the applicant came back with should then have been handled by a person who had not been previously involved with the applicant in the disciplinary process.

19 The words found by Commissioner Ritchie to have been uttered by the respondent were: I have seven brothers and my husband has seven brothers and many cousins and after court I will show Kylie what aggression is and she will be dead.

20 The respondent's position was not terminated at this meeting. On 3 December 2008, Ms Salmon compiled a "Briefing for the Chief Executive - Termination of Perihan Kaplan". On 5 December 2008, Mr John Roach, Chief Executive of the Health Support Service, notified the respondent in writing of her termination. The respondent's termination took effect from 8 December 2008. The reasons given for her dismissal were: 1. The first discipline (sic) of a warning that further similar behaviour would warrant termination is endorsed. 2. The second act of aggression warrants termination linked to the first discipline, however the threat of death to another employee is an extremely serious matter and when this is linked to other aggression to that employee and a history of similar behaviour warrants summary dismissal. CONCLUSIONS AT FIRST INSTANCE

21 The Commissioner found that the dismissal of the respondent was harsh as it was "disproportionate to the gravity of the misconduct" taking into consideration the mental state of the respondent at the time. 22 He stated (at [118-119]): 118 Whilst I have made a positive finding that the applicant did threaten Ms Summers during the meeting I do not believe the applicant was in a mentally fit state to handle such a meeting and therefore had a diminished responsibility for what she expressed during such a meeting. The medical certificate issued on the morning of the meeting had the diagnosis as: "anxiety, depression, panic attacks." The applicant at the time of that meeting was facing a number of issues and was not I believe capable of rational behaviour and thought to the extent required. In my view mitigating circumstances did exist in this instant. The failure of the respondent to allow the applicant the opportunity to explain herself post the 1 December 2008 meeting was a clear failure of procedural fairness. 119 In summary it is my finding that the termination of the applicant was harsh as it was disproportionate to the gravity of the misconduct taking into consideration the mental health of the applicant. 23 At [120]- [123] Commissioner Ritchie found: 120 The applicant seeks reinstatement or reemployment as a displaced person with no requirement that she be located at PLS. Her claim also seeks back pay for the period that she was terminated plus continuity. Mr Reitano for the applicant recognised that the hearing had been delayed by application of the applicant as a consequence of ill health and that would have to be dealt with in respect to back pay. 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. 121 The respondent did not believe reinstatement was practical as a consequence of what the applicant actually did that would sever any possible future employment relationship and a number of witnesses stated that they would not wish to work with the applicant. 122 It is my view that the respondent is a large organisation with a number of outlets that the applicant could be considered for as a displaced person in accordance with the Managing Displaced Staff of the NSW Health Service Policy. Such consideration should take into account that the applicant has little or no contact with Ms Summers.

123 The applicant had a long history of employment with the respondent. Other than a warning in February 2004 the applicant prior to October 2008 had a blemish free work history. The failure of her applications for the Customer Relationship Co-ordinator positions was in my view not accepted by the applicant with good grace and a catalyst for what next occurred. This was a failure on the part of the applicant to recognise that there are very few certainties in the promotion process. 24 The Commissioner made the following orders (at [124]): 1. In accordance with section 89(2) of the Act, I Order the Director General of NSW Health Department Health Services Division Linen Services Parramatta Branch to reemploy Ms Perihan Kaplan as a displaced person within 21 days of the date of this Decision. Ms Kaplan is required to provide a medical certificate clearing her to return to work.

2. In accordance with section 89(3) of the Act, I direct the parties to confer and quantify the back pay taking into consideration the delay in the hearing of this case and any other relevant matters including if appropriate what is expressed in point 119 of this Decision. Such payment must be made to the applicant within 21 days of this Decision. I give leave to have this matter relisted at short notice if agreement is not reached. 3. In accordance with section 89(4) of the Act, I Order that the period of employment of the applicant with the respondent is taken not to have been broken by the dismissal. 4. I Order that Ms Kaplan be given a first and final warning with respect to the incidents of 3 and 5 November 2008.

25 The appellant sought leave to appeal upon the basis of certain errors which were said to attend upon a finding by Ritchie C that the dismissal of the respondent was harsh. That finding was made pursuant to s 84(1) of the Act and involved mixed questions of fact and law: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at [4] ('Burge') (also applying Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 at [181 - 182] and Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at [59]. 26 One ground relied upon for this challenge was predicated upon a legal proposition that a dismissal which was based upon conduct by an employee, which constituted a breach of a fundamental and essential term of the contract of employment, "would necessarily not be harsh". No authority was given in support of that proposition except for an authority which was said to demonstrate that, in the contemporary common law of employment, an implied term may be found in every employment contract that the employee owes the employer a duty not to act in a manner likely to destroy or seriously damage the relationship of trust and confidence between them: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2007) 69 NSWLR 198. The appellant's contention would appear to be that a finding of harshness under s 84(1) could not be made in circumstances where an employee had been lawfully dismissed for breach of such a term. It was also suggested that that approach was mandated because the employee's conduct in that context would be a repudiation of the contract. 27 The difficulty with this approach, as opposed to one which would have the nature of an employee's misconduct weighed against mitigating factors to determine, inter alia, whether a dismissal was harsh, is that it stands in the face of the statutory scheme which requires the Commission to consider whether the dismissal was harsh, unreasonable or unjust. There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 at [99] ('Loty'), that the exercise of the Commission's powers in relation to unfair dismissals (now found in Part 6 of Ch 2 of the Act) requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" (Loty at 99). In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". To similar effect, a Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [71] ('Little') stated: The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate "justification" in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act. 28 This conclusion must also follow from the very meaning of the concept of "harshness" within s 84(1). The words "harsh, unreasonable or unjust" in s 84(1) are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at [467] ("Byrne"), per McHugh and Gummow JJ, (applying Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at [28]). The appellant's acceptance that the expression 'harsh' would bear the meaning "disproportionate to the gravity of the misconduct" (see Byrne at [465]), necessarily brings with it the conclusion that a breach of an employment contract or even a repudiation of it will not be determinative of a finding under s 84(1) of the Act as to whether the dismissal was harsh. So, too, does an acceptance (see Byrne at 465) that the personal circumstances of a dismissed employee may be also brought into account. 29 We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows:

In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. 30 We do not consider that the appellant established that Ritchie C departed from these principles or made a determination of "harshness", which was not properly available to him in the circumstances of this matter. 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. 35 This approach does not involve, as the appellant submitted, a conclusion that the threat "warranted no sanction whatsoever", but that, upon proper investigation and assessment, the conduct was so diminished by the respondent's state that no further step was required other than the acknowledgement of the final warning which had been issued because of prior misconduct engaged in on 3 and 5 November 2008. Likewise, the Commissioner's decision did not ignore the basis upon which the decision by the appellant was made but, rather, had regard to the failure of the appellant to place sufficient weight upon the mental state of the respondent in reaching the conclusion that it did in all of the circumstances. 36 That leaves two aspects of the appellant's submissions, in this respect, for consideration. The first one may be dispensed with briefly. Having regard to our discussion of the Commissioner's decision, it is plain that we do not consider that he failed to give reasons or any adequate reasons for his decision that the termination was harsh. 37 The second issue involved a contention that the Commissioner erred in failing to place sufficient weight upon the fact that the respondent had "told the employer untruths". This contention was based upon various findings by Ritchie C, made contrary to the respondent's account of incidents which occurred on 3 and 5 November 2008. 38 There are two factors telling against this contention. The first is that we consider Ritchie C did, as the appellant recognised, have regard to these considerations in his factual determinations in the proceedings. 39 Secondly, we do not consider that the conclusions reached by the Commissioner should be properly characterised as conclusions that the appellant lied, fabricated statements or told direct untruths either to the employer or in her evidence before the Commission but, rather, that he preferred the account of other witnesses over that of the respondent in certain respects. That distinction, which was recognised by a Full Bench as being relevant to the question of the integrity of an employee, and assessments of the harshness (albeit in a different context) in Commissioner of Police v Sewell (2008) 108 IR 91 at [19-20] weighs heavily against the appellant's contention in this respect. In any event, the question of the respondent's integrity, in this respect, is but one factor which required assessment in determining whether her dismissal was harsh, unreasonable or unjust: Commissioner of Police for NSW v Industrial Relations Commission of NSW & Raymond Sewell [2009] NSWCA 198 at [75], and we consider Ritchie C took that matter properly into account.

40 The appellant contended that 'serious and discrete' errors of law were made by Ritchie C in the exercise of his powers under s 89(2) of the Act. Multifarious contentions were advanced in support of that proposition, some of which we consider warrant the affirmation of that ground of appeal. 41 First, the Commissioner did not give any reason as to why he did not order the reinstatement of the respondent pursuant to s 89(1) of the Act. The Commissioner apparently found that the restoration of the employment relationship was not impracticable (given the orders he made under s 89(2)), but did not order reinstatement which was the primary remedy under s 89: Burge at [34]; Little at [88] and Casari v South West Area Health Service (2009) 185 IR 217 at [72] ('Casari'). As was recently stated in Casari at [72] "it is only where it is impracticable to reinstate an applicant that the other remedies available under s 89 of the Act may be applied". The failure to give adequate reasons as to why re-employment was chosen over reinstatement also constituted an error of law: EDC v Burnard (1990) 49 IR 446 at [453]. 42 Secondly, the Commissioner made a determination that the respondent be reemployed as a "displaced person". Mr Reitano submitted that the Commissioner selected this remedy in preference to reinstatement because the position the respondent occupied no longer existed as the respondent was a displaced person. It appears, however, that the former position occupied by the respondent was, in fact, that of a displaced person and that, in the result, the powers under s 89(2) were not available: Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47 at [19]. 43 Thirdly, whilst the Commissioner was entitled, as he did, to have regard to the nature and size of the appellant in assessing the practicality of re-engaging the respondent in an employment relationship (particularly when she was a displaced person), the Commissioner did not adequately resolve the question as to whether it was, in fact, impracticable to reinstate or reemploy the respondent because he failed to have particular regard to the circumstances leading to her termination including the events which the Commissioner found to have occurred in November 2008. The Commissioner may have properly taken into account, in this respect, the mitigating circumstances he had earlier found in favour of the respondent, but this required, as the appellant correctly submitted, a fresh assessment based upon the particular questions raised for consideration under s 89(1) and s 89(2) of the Act. This did not occur. 44 We consider that leave to appeal should be granted to correct these errors for the purposes of establishing principles for the proper administration of this aspect of the Commission's jurisdiction. The errors of law are of such a nature that the appeal must be upheld.

45 These conclusions give rise to the question as to what orders should be properly made in the disposition of the appeal. 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.

47 Bearing in mind that there remains unresolved before us the question of the receipt of fresh evidence which potentially goes to the question of the appropriate orders to be made in disposition of the appeal (vis a vis any orders that might be appropriate to be made under s 89 of the Act) and, given the appellant's alternative submission as to remedy in paragraph [81] of its written submissions filed on 5 February 2010 (about which submissions are relatively undeveloped), we consider that the appropriate course is to receive further short oral submissions as to the appropriate orders to be made in light of this decision. Those submissions would be necessarily supplementary to the written and oral submissions we have already received and may address the full range of potential orders under s 89, as well as encompassing any further submissions as to the receipt of evidence. The earlier orders made in relation to the stay of the proceedings will stand.

48 We fix the matter for further hearing on this basis at 10 a.m. Tuesday 8 June 2010 and shall allow one hour for the taking of submissions. The matter stands adjourned accordingly.

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