Gaite v Commissioner of Fire and Rescue NSW

Gaite v Commissioner of Fire and Rescue NSW - [2019] NSWIRComm 1070 - NSWIRComm 2019 case summary — Zoe

The hearing

The hearing of this matter took place on 26 and 27 August 2019. Mr J Hyde of counsel appeared for Mr Gaite. Mr G Holland, a Senior Industrial Relations Officer of FRNSW, appeared on its behalf.
Mr Gaite read the following: 1. two statements he had prepared dated 9 April 2019 and 14 June 2019 respectively; 2. a statement of Robert Lightfoot, a Team Leader, Firefighter Development with FRNSW, dated 8 April 2019; 3. a statement of Denise Butcher, a Senior Firefighter with FRNSW, dated 5 April 2019; 4. a statement of Andrew McCready, a Leading Station Officer with FRNSW, dated 5 April 2019; 5. a statement of Troy Stockwell, a Station Officer with FRNSW, dated 5 April 2019; and 6. a statement of Dr Anthony Chambers dated 5 April 2019. Dr Chambers was called as an expert witness, and his qualifications as such were not challenged by FRNSW.
Mr Gaite also tendered into evidence: 1. a handwritten drawing he had prepared of the room in which the training took place on 5 April 2018, purporting to show the layout of the room and its furniture, and the location of each participant at the time the pain stimuli were demonstrated; 2. a diagram of the room prepared by Lisa Matuzelis, one of the recruits in attendance at the training session on 5 April 2018, purporting to show the same things to her recollection; and 3. a memorandum from Jodie Camden, the Manager, Conduct and Complaints, Professional Standards at FRNSW to Acting Superintendent Craig Davies of FRNSW dated 9 August 2017.
FRNSW read the following: 1. an affidavit of Lisa Matuzelis, a Firefighter with FRNSW, sworn on 14 May 2019; 2. an affidavit of Nadine Lauren Hyslop, a Firefighter with FRNSW, sworn on 11 May 2019; 3. an affidavit of Alana Dee Tight, a Firefighter with FRNSW, sworn on 10 May 2019; 4. an affidavit of Andrew Warren Day, a Firefighter with FRNSW, sworn on 6 May 2019; 5. an affidavit of Phoebe Seamer, a Firefighter with FRNSW, sworn on 10 May 2019; 6. an affidavit of Russell Andrew Foster, a Team Leader, Firefighting Initial Training with FRNSW, sworn on 14 May 2019; 7. an affidavit of Superintendent Andrew Raymond Faunce, the Zone Commander ME3 for FRNSW, sworn on 13 May 2019; 8. an affidavit of Superintendent Gregory Patrick Rankin, the Zone Commander MS3 for FRNSW, sworn on 8 May 2019; 9. an affidavit of Theresa Mary Smith, a Senior Investigation Officer in the Professional Standards Unit of FRNSW, sworn on 9 May 2019; and 10. an affidavit of Louise Clarke, the Director Professional Standards, People & Culture Directorate with FRNSW, sworn on 17 May 2019.
FRNSW also tendered into evidence a document demonstrating that Mr Gaite had undertaken BLS training conducted by FRNSW in February 2017.

[4]

Factual background

Mr Gaite is 51 years old. He has been employed by FRNSW (and its predecessor, the NSW Fire Brigades) since 1998.
Mr Gaite appears to have had a reasonably successful career with FRNSW. In 2009 he completed the Senior Firefighters course. In approximately October 2013 he, along with the other members of his unit, received a Unit Commendation for Meritorious Service. Each of Mr Lightfoot, Ms Butcher, Mr McCready and Mr Stockwell attested to Mr Gaite's good character and professional behaviour.
Mr Gaite worked in a number of roles during his employment with FRNSW. At the time he was dismissed he held the position of Training Assessment Officer for FRNSW's Qualified Firefighter program. He described this as requiring him to assess junior firefighters who had graduated from the recruit college and who were required to undertake further studies to become qualified firefighters.
Mr Gaite enjoyed a largely trouble-free employment history with FRNSW. The only evidence of any issues prior to 5 April 2018 related to complaints made against him by co-workers in December 2016 and June 2017. The memorandum referred to at [6(3)] above stated that Mr Gaite had not been subjected to "any formal finding or disciplinary action" in respect of those prior issues.
In addition to his employment with FRNSW, Mr Gaite is highly committed to the Australian Army Reserve. He has served in a number of roles, including as a combat medic. He has trained soldiers and others in first-aid, search and rescue and other skills. Through the Army Reserve Mr Gaite has undertaken and delivered BLS training.
FRNSW has an internal process by which its trainers can be "validated". This was described by Mr Foster in these terms: [1] "Q. You were asked a number of questions where the terminology that was used was 'qualified'. I think, in fact, the terminology that is used is 'validated'. Is there a difference? A. Yeah, there's a difference. It's a bit of a sore point that we've probably argued with our program and design and development team, which is like our compliance team. So ‑ sorry, what were the two terms you used? Q. 'Qualified' and 'validated'. A. So 'qualified', to be a training and assessment officer you need to hold a valid TAE ‑ training assessment qualification ‑ and you need to hold the unit of competency. That's by ASQA, the governing body. 'Validated' is something put in by Fire and Rescue New South Wales. That means you have been ‑ you hold those two skills, but you also have been ‑ someone has ticked you off as current in the latest training methods with Fire and Rescue. Whether you can deliver it and give the qualification with ASQA, Fire and Rescue has an on again/off again relationship with the validation process."
FRNSW has an Instructor Capability Procedure which Superintendent Faunce deposed "underpins the training regime". [2] All trainers are said to be required to comply with the obligations contained in the procedure. It contains the following statements: "Safety standards underpin the design and delivery of all training and assessment activities. There is a commitment to: • preventing workplace injuries, both physical and psychological • being accountable for safe and healthy work practices and workplaces • conducting activity and site risk assessments prior to the delivery of any program."
The same statements appear in FRNSW's Training and Assessment Procedure.
FRNSW also has an Education and Training Policy, with which Superintendent Faunce stated all trainers are required to be familiar. It provides that instructors are responsible for "conducting training according to FRNSW Work Health and Safety policies and procedures and the Be Safe Strategy".
The FRNSW Work Health and Safety Policy provides that a worker must "take reasonable care that their acts and omissions do not adversely affect or risk to health and safety of other persons".
Mr Gaite accepted under cross-examination that he was aware of the Instructor Capability Procedure. He was not asked about his familiarity with the other documents referred to above. That said, in his evidence in response to the affidavit of Superintendent Faunce, Mr Gaite did not suggest that he was unaware of the procedures and policies or dispute that they applied to his employment.
On 4 April 2018 Mr Gaite was directed to assist with training firefighter recruits the following day. This was outside the ordinary scope of his duties. There were some inconsistencies on the evidence as to who initially made the direction to Mr Gaite to perform the training and precisely the nature of the training that was first anticipated. I do not think that much turns on these matters.
Mr Foster gave evidence, which I accept, as follows: [3] "4. I recall on the 4 April 2018 speaking to Nick, I said words to the effect: 'Can you help me out tomorrow at the Airport facility. I am short one trainer and I need someone to deliver BLS Review.' I specifically asked Nick because of his experience training recruits, his knowledge of the airport and the fact that he had delivered Basic Life Support (BLS) training before." (Sic, emphasis in original)
Under cross-examination Mr Foster deposed that one of the reasons he asked Mr Gaite to undertake the training is that he was aware that Mr Gaite had experience as a combat medic with the Australian Defence Forces.
There were six recruits in the training session on 5 April 2018: Lisa Matuzelis, Nadine Hyslop, Alana Tight, Andrew Day, Phoebe Seamer and Alexander Burger (collectively, "the recruits"). With the exception of Mr Burger all of the recruits gave evidence in these proceedings.
As might be expected after such a significant period of time, there were differences in the recollections of the recruits, as between themselves and with Mr Gaite, as to precisely what happened during the lesson. Mr Hyde, correctly with respect, submitted that no adverse inferences should be drawn against the recruits on the basis of these inconsistencies. I consider that the same should, in general terms, be said for Mr Gaite. I am satisfied that in some respects his recollection is not to be preferred, but in the main any differences are not material to the disposition of these proceedings. It is therefore unnecessary to explore these inconsistencies.
On the balance of the evidence, I find that the following took place during the training on 5 April 2018: 1. Mr Gaite informed the recruits that during the session there would be some physical contact. 2. During the course of the lesson Andrew Day was asked to lie on the floor to play the part of a "model patient". 3. Mr Gaite spoke to the recruits about how to determine the level of consciousness of a person, which included a discussion of the acronym "AVPU". That acronym stands for: Alert (where the patient can open their eyes and is aware of their surroundings); Verbal (where the patient responds to verbal stimuli); Pain (where the patient responds only to painful stimuli); and, Unresponsive/Unconscious (where the patient does not respond to either verbal or painful stimuli). 4. Mr Gaite asked the recruits to provide examples of pain stimuli that would be used on a patient. He claimed that their answers were incorrect and he decided to demonstrate techniques on some of them. He walked to Ms Matuzelis and without warning pinched her left triceps. He did the same to Ms Tight. He also demonstrated on Ms Tight and on Ms Hyslop a pain stimulus in which he pressed down on the nail bed of their thumbnails until it hurt and the recruit recoiled. 5. In each instance the demonstration elicited a strong pain response - that is, the jerking of the arm away. It is this pain response which the technique aims to produce, as it is indicative of a level of consciousness. It was indeed Mr Gaite's intention in demonstrating the pain stimuli to elicit a pain response. 6. Each of Ms Matuzelis, Ms Tight and Ms Hyslop claim to have suffered significant pain as a consequence of the demonstration. In the case of Ms Matuzelis and Ms Tight, the incident led to them having bruises on their arms. 7. Ms Seamer asked Mr Gaite if she could demonstrate a pain stimulus on him, to which he agreed. It involved pressure being applied by Ms Seamer to Mr Gaite's trapezius muscle, which provoked a pain response. 8. Mr Gaite did not tell the recruits that he might inflict pain on them. He did not seek consent from any of the recruits to him touching them or inflicting pain on them.
Each of Ms Matuzelis and Ms Tight gave evidence that in addition to being hurt, they were angry at Mr Gaite. However, it does not appear that any of the recruits proactively sought to complain about the incident. The matter was only escalated when John Kranitis, another trainer, became aware of the situation.
Mr Kranitis reported the incident to Superintendent Faunce on 10 April 2018, who in turn reported it to Superintendent Rankin. This resulted in the incident being reported by Superintendent Rankin to FRNSW's Professional Standards Unit.
The matter was referred to Theresa Smith for investigation. She drafted a letter for signature by Paul Baxter, the Commissioner of FRNSW, informing Mr Gaite of the allegations against him; that the allegations would be the subject of an investigation; and, that he was to be suspended from duty with pay effective immediately. The letter sent to Mr Gaite was dated 13 April 2018.
The allegations made against Mr Gaite ("Allegations") were in the following terms: "It is alleged that on 5 April 2018 in a training module at the Sydney Airport Training Facility you engaged in misconduct by: 1. Intimidating and/or threatening recruit firefighters prior to the commencement of training by saying words to the effect of 'You had better be nice to me as I may be your assessor during the Qualified Firefighter Program.' 2. Victimising, humiliating, intimidating or threatening recruit firefighters by: a. pinching Lisa Matuzelis on the underside of her arm; b. pinching Alana Tight on the underside of the arm and also her fingernail. c. pinching Nadine Hyslop on the finger. 3. Sexually harassing and/or targeting a female recruit firefighter by walking past two male recruits in order to pinch female recruit Lisa Matuzelis on the underside of her arm." (Emphasis in original)
FRNSW reported the incident to NSW Police. The matter was not pursued by the police due to the lack of support from any of the recruits.
In the investigation undertaken by Ms Smith, Mr Gaite, with assistance from the Fire Brigade Employees Union ("FBEU"), was able to respond to the allegations against him. There is no suggestion that he did not have an adequate and reasonable opportunity to do so.
On 26 September 2018 Ms Smith completed her investigation report on the matter. She found that Allegation 1 could not be sustained. She sustained the other Allegations, although in respect of Allegation 3 Ms Smith found no evidence that Mr Gaite had engaged in sexual harassment of Ms Matuzelis.
The investigation report was provided to Commissioner Baxter on or about 30 October 2018.
On 12 November 2018 Commissioner Baxter made a preliminary decision pursuant to reg 35(1)(i) of the Fire Brigade Regulation 2014 (NSW) ("Regulation") in these terms: [4] "I find that allegations 2-3 are sustained. These allegations are very serious in nature and I am considering that misconduct has occurred and that disciplinary action up to dismissal is warranted."
In a letter to dated 19 November 2018, Commissioner Baxter advised Mr Gaite that he had formed the preliminary view that Allegations 2 and 3 were sustained and, having fully considered the investigation report, he had formed the opinion that the sustained conduct constituted misconduct. Commissioner Baxter stated that the most serious disciplinary action he was considering was termination of Mr Gaite's employment. Mr Gaite was provided with an opportunity to make a written submission and to provide any additional information that he wished to be taken into account before a final decision was made. Mr Gaite was also advised that he could make a request for an interview with Commissioner Baxter.
On 9 January 2019 the FBEU wrote to Commissioner Baxter on behalf of Mr Gaite providing submissions and further information for consideration.
Mr Gaite took up the invitation to meet with Commissioner Baxter. The meeting took place on 14 January 2019. Mr Gaite was accompanied by Mr Leighton Drury from the FBEU. Louise Clarke was also in attendance. During this meeting Mr Gaite was able to respond further to Commissioner Baxter's letter of 19 November 2019.
By letter dated 15 January 2019 Commissioner Baxter informed Mr Gaite that his employment was to be terminated "effective with the delivery of this letter to you".

[5]

Submissions

Mr Gaite's written submissions may be summarised as follows: 1. The pain stimuli demonstrated by Mr Gaite during the lesson are "well-known and widely practised techniques". 2. Physical demonstration on recruits is an acceptable and encouraged practice in the Australian Defence Force because it ensures that students understand how a painful stimulus can provoke a response in a patient who is conscious without causing significant injury. 3. Mr Gaite had not been validated by FRNSW to conduct the BLS training. In circumstances where FRNSW failed to ensure that a validated member was sent to deliver training it is harsh, unjust and unreasonable to terminate Mr Gaite's employment for what he rightly considered was an acceptable practice of physically demonstrating known techniques on recruit firefighters. 4. Mr Gaite categorically rejected any suggestion that he sexually harassed or targeted any females during the training. 5. The process was flawed in that during the interview with Commissioner Baxter on 14 January 2019 Mr Gaite was "confronted without warning with two historical allegations of misconduct". The inclusion of these issues caused Commissioner Baxter's discretion as to punishment to miscarry as he considered those matters relevant to the sanction of dismissal. 6. Dismissal was disproportionate to the gravity of the conduct. 7. The economic and personal consequences of the termination have been devastating for Mr Gaite.
FRNSW's written submissions included the following contentions: 1. During the training session Mr Gaite caused injury to the three female recruit firefighters. Those injuries were caused intentionally or recklessly and without consent. 2. In order to inflict the pain on the female recruits Mr Gaite walked past the two male recruits, one of whom was supposed to be the "model patient". 3. Mr Gaite was seen to smile as he conducted the demonstration. 4. There was no need for the demonstration of pain stimuli Mr Gaite undertook. 5. Mr Gaite's dismissal was in accordance with reg 35(2) of the Regulation and "s 10.7 of the Procedural Guidelines for the Management of Conduct or Misconduct". (No document with this title is in evidence before me.) 6. Mr Gaite was dismissed because he was no longer considered a suitable person to exercise the functions of a firefighter, and because Commissioner Baxter could no longer have the required level of trust and confidence to maintain the employment relationship. 7. The allegations found against Mr Gaite were so fundamental to his employment that they justified his dismissal. Not only was Mr Gaite's dismissal proportionate to his misconduct, it was the only appropriate determination by Commissioner Baxter in the circumstances. 8. In the alternative, in the event that the Commission finds that the termination was harsh, unreasonable or unjust, the Commission would be satisfied that reinstatement or re-employment is "impracticable and inappropriate in the circumstances". This was due to a number of circumstances, including: 1. Mr Gaite's failure to accept responsibility for his conduct and his insensitivity to his behaviour is being inimical to and prejudicial to staff morale; 2. the respondent's loss of trust and confidence in Mr Gaite, having regard to the nature of the conduct and the nature of the employment; and 3. Mr Gaite's fundamental failure to follow obligations imposed under FRNSW policies, procedures and "the Code of Conduct".

[6]

Relevant legal principles

This matter is brought under s 84 of the Act, which relevantly provides as follows: 84 Application for remedy by dismissed employee (1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part.
Section 88 of the Act provides: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant.
To be entitled to any remedy under the Act the onus is on Mr Gaite to prove that his dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273.
However, where the dismissal of an employee is justified on the basis of an allegation of misconduct it will be for the employer to establish that the alleged misconduct in fact occurred and warranted dismissal: Tredinnick v Commissioner of Police [2016] NSWIRComm 14; Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 464; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 at 83-84.
It is now well accepted that each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration. As stated by the Full Bench of the Commission in Corrective Services NSW v Danwer [2013] NSWIRComm 61: "21. …It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."
See also NUW (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388; (2005) 146 IR 441 at [64] and Department of Health v Perihan Kaplan [2010] NSWIRComm 65 at [25]-[32].
In Outboard World Pty Limited (t/a Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167 at 183, the Full Bench made the following observations: "In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made."
It is important to consider also the regulatory context of Mr Gaite's employment, as such context must be considered in the determination of an unfair dismissal claim: Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at [146] (McColl JA).
Mr Gaite's employment was subject to the Regulation, which relevantly provides as follows: Part 3 Functions of firefighters 13 Contraventions of Part 3 A contravention of this Part does not give rise to an offence but may be the subject of disciplinary action or remedial action under Part 4. … 16 Duty to obey orders and act fairly and responsibly A firefighter must not: (a) disobey or disregard any lawful order made or given by a person having the authority to make or give the order, or … (c) abuse the firefighter's authority by acting oppressively towards a subordinate, or … (e) through negligence, carelessness or malice, allow any loss, damage or injury to occur to any person or property, or … 17 Unacceptable behaviour (1) A firefighter must not: … (h) while on duty, by words or action, harass, intimidate or threaten another firefighter… … Part 4 Misconduct Division 1 Preliminary 33 Meaning of "misconduct" (1) For the purposes of this Part, misconduct includes, but is not limited to, any of the following: (a) a contravention of Part 3, (b) performance of duties in such a manner as to justify the taking of disciplinary action, … Division 2 Dealing with misconduct and other matters 35 Dealing with allegations of misconduct (1) If the Commissioner is made aware of an allegation that a firefighter may have engaged in any misconduct, the Commissioner may: (a) decide to deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, or (b) decide that it is appropriate to take remedial action with respect to the firefighter. (2) After dealing with an allegation of misconduct as a disciplinary matter in accordance with this Part and the procedural guidelines, the Commissioner may, if the Commissioner is of the opinion that the firefighter has engaged in any misconduct, decide to take disciplinary action with respect to the firefighter. (3) Before any disciplinary action is taken with respect to a firefighter under this clause, the firefighter must be given an opportunity to make a submission in relation to the disciplinary action that the Commissioner is considering taking. (4) Even though the Commissioner decides to deal with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the Commissioner may, at any stage of the process: (a) decide to take remedial action with respect to the firefighter concerned, or (b) decide to dismiss the allegation, or decide that no further action is to be taken in relation to the matter, or both. …
The Regulation defines "disciplinary action" in the following terms: 3 Definitions 1) In this Regulation: … disciplinary action, in relation to a firefighter, means any one or more of the following: (a) terminating the firefighter's appointment, (b) directing the firefighter to resign, or to be allowed to resign, within a specified time, (c) a demotion in rank, (d) the imposition of a fine not exceeding 10 penalty units, (e) a caution or reprimand.

[8]

Mr Gaite's experience and training

On the evidence, prior to 5 April 2018 Mr Gaite had not conducted BLS training (refresher or otherwise) at FRNSW. He had only done so in the course of serving with the Australian Army Reserve. Indeed, it was this prior experience which was material to Mr Foster requesting that Mr Gaite conduct the training.
Under cross-examination Mr Gaite deposed as follows: [5] "Q. I am putting to you that at the time you were aware that other instructors working for Fire & Rescue New South Wales did not demonstrate the pain technique on recruits? A. I don't know. I don't know exactly how other validated Fire [&] Rescue BLS instructors taught lessons and what the correct methodology of teaching BLS in Fire [&] Rescue is, because I am not a validated Fire [&] Rescue BLS instructor. My skill and experience in teaching first aid comes from the Australian Army. Comes from the documents on courses such as the combat first aid course that I have put in my submissions. My experience in teaching BLS is several years' worth of Army training and teaching lessons to soldiers in the Australian Army."
Dr Chambers was called to give evidence on behalf of Mr Gaite. Amongst his responsibilities, Dr Chambers is a Medical Officer in the Australian Army Reserve. In his statement, Dr Chambers deposed as follows: "18. During my posting as Medical Officer to the 1st Commando Regiment I acted as Chief Instructor for the Combat First Aid Courses conducted at this unit. During these courses, students were taught to assess the level of consciousness of patients using the 'AVPU' system. As part of this instruction, painful stimuli were demonstrated to the students by applying a pinch to the trapezius muscle and/or triceps muscle, or by applying pressure to the nail bed of a finger of the student being trained. This was accepted practice, and was performed in order for the students to understand how a painful stimulus can provoke a response in a patient who is conscious without causing significant injury. 19. I can confirm that Mr Gaite performed the role of instructor on at least one of the Combat First Aid Courses that I was Chief Instructor for during my posting to the first Commando Regiment. I can also confirm that Mr Gaite was responsible [for] teaching students on this course how to assess a patient's level of consciousness using the 'AVPU' system. I can also confirm that it was standard practice on these courses for instructors to demonstrate the painful stimuli on the students being trained by applying a pinch to the trapezius muscle and/or triceps muscle, or by applying pressure to the nail bed of a finger of the student being instructed. 20. In my opinion as an experienced Trauma Surgeon and Medical Practitioner working both within a military and civilian environment, and with extensive experience in the teaching of medical students and as a lead instructor on multiple medical courses with the Australian Army Reserve, it is perfectly reasonable to teach the method of assessment of level of consciousness by demonstrating the application of a trapezius muscle pinch, triceps muscle pinch, or applying pressure to the nail bed of the student under instruction. 21. In my opinion these are all valid instructional techniques in teaching a student how to assess a patient's level of consciousness. Furthermore, they provide a level of realism and fidelity to the training of what is a critical skill they could make the difference between life and death for a patient who is unconscious."
Dr Chambers gave the following further evidence at the hearing. Firstly, attendees at the Army training would know that pain techniques would be demonstrated on them and that they were likely to hurt. Secondly, the method adopted is to apply a gradually increasing level of force on the student until such time as the pain response is demonstrated. Thirdly, Dr Chambers would expect that the techniques would be demonstrated on all attendees at the training, not just isolated individuals.
Mr Gaite's conduct on 5 April 2018 was not in keeping with this description. Mr Gaite did not seek the consent of the recruits to conduct the demonstration on them or advise them that it would hurt. He appears to have applied an immediate, significant level of force on the recruits rather than gradually increasing the force until a pain response was achieved. This caused the recruits to suffer significant pain and in two cases bruising. He did not demonstrate on all of the recruits.
On the question of consent there is one further particular to address. In his statement of 9 April 2019 Mr Gaite stated that he had only demonstrated the technique of pinching Ms Tight's hand after she had requested that he show her where to do it. He claimed that he asked her to give him her hand, which she did. He argued that this showed consent. This detail is not reflected in the evidence of any of the recruits and does not appear in the statements made by them for the purposes of Ms Smith's investigation (to the extent that they are in evidence). Ms Tight did not respond to this evidence in her affidavit. However, even on the facts as stated by Mr Gaite, I am not satisfied that it demonstrates that Ms Tight gave him consent to inflict pain on her.
The fact remains, however, that there was uncontroverted evidence that through the Australian Army Reserve Mr Gaite had attended and conducted BLS training in which pain stimuli were demonstrated on the attendees. It was this experience which he brought to, and applied at, the training on 5 April 2018.
Mr Gaite placed significant emphasis on the fact that he was not "validated" by FRNSW to conduct BLS training. It was his contention, in effect, that he could not be expected to know that the demonstration of pain techniques was not acceptable at FRNSW if he had not received instruction on how to conduct the relevant training.
This argument was brought into relief in the following exchange during the cross-examination of Superintendent Rankin: [6] "Q. That was not my question. My question is there is an advantage, isn't there, in being validated? A. Yes, there is. There is an advantage. Q. You understand that the reason that there's an advantage is because the person delivering the training would be assessed on their capability and the content of what they deliver in a training session; correct? A. Correct. Q. In the event that they teach in error or adopt practices that are inappropriate, they would be the subject of comment and revision; correct? A. Correct. Q. Mr Gaite did not enjoy the benefit of that, did he? A. Of being a validated trainer? Q. Yes, and having the assessment of his teaching techniques? A. Not for BLS."
In response, FRNSW submitted that its processes did not require Mr Gaite to be validated to conduct the training, on the basis that the session was only a BLS "refresher". I accept those submissions, but they somewhat miss the point of Mr Gaite's argument.
FRNSW also adduced evidence that Mr Gaite had undertaken BLS training at induction and again in February 2017. Further, Mr Foster deposed that Mr Gaite had sat in as an observer for two days of BLS training, a fact which Mr Gaite denied. No corroborating evidence was provided by FRNSW, including from the person said to have conducted that training, a Robert Callow.
I do not accept that by virtue of having undertaken BLS training at induction (presumably in 1998 or 1999) and refresher training in February 2017 Mr Gaite should necessarily be taken to be aware as to precisely how training is to be conducted. In other words, the fact that Mr Gaite had previously undertaken the training where pain stimuli were not demonstrated is not a sufficient basis for FRNSW two assert that he "should have known" that the demonstration of pain techniques should not occur. To use the words of Mr Foster (see [14] above), the fact that Mr Gaite had not been validated in BLS meant that he had not been "ticked off as current in the latest training methods with [FRNSW]".
On balance, the fact that Mr Gaite had not received instruction on how to deliver the BLS refresher training is a relevant consideration in determining whether FRNSW could rely on his conduct to justify his dismissal. That said, the lack of validation is by no means determinative. It does not exonerate Mr Gaite from all responsibility or accountability for his conduct.

[9]

Did Mr Gaite intend to cause injury?

In its outline of submissions FRNSW alleged that Mr Gaite caused injury to the recruits "intentionally or recklessly and without consent".
I accept that Mr Gaite did not obtain consent from Ms Matuzelis, Ms Hyslop or Ms Tight to inflict pain on them through the demonstration of pain stimuli. I also accept that Mr Gaite caused an "injury" to Ms Matuzelis and Ms Tight in the form of bruising.
I do not place significant weight on the fact that bruising was occasioned. Mr Holland went to some effort to have Dr Chambers accept that bruising amounted to an injury and a form of trauma. While Dr Chambers accepted that by definition this might be correct, he regarded it as a form of "minor" trauma or injury.
I had the following exchange with Dr Chambers: [7] "Q. You were asked some questions by Mr Holland about bruising and the propensity for a person to show bruising after the application of force, and age was a factor, as Mr Holland pointed out. The question is simply from the fact of the bruise, just simply being aware that a person has shown signs of bruising, absent any other information, what conclusions can you draw as to the amount of force that was applied? A. I don't think you can draw a conclusion because, you know, really minimal trauma can cause a bruise, and we've all bumped our leg against something, or had a bruise and never knowing how it happened. Just because you've got a bruise, it doesn't mean that there was some time of excessive or extreme force, and everyone is different. Some people bruise really easily, and some people don't, and so I don't think you can make any inference."
During the hearing FRNSW seemed to step away from its submission that Mr Gaite had intentionally caused injury to the recruits. Under cross-examination Mr Gaite was asked about the contents of the Application. In the course of that evidence there was the following exchange: [8] "Q. My question is, at the time the application was filed I put to you that you recognised that your behaviour on 5 April constituted misconduct, that it was a one off incident which, in your words, you admitted and regretted. And what I'm saying, if you now say that you didn't regard it as misconduct, why then did you regret it? A. The sentence that you're reading out is part of the submission which is drafted by my legal counsel, that little sentence. So, I acknowledge that I, you know, I admit that I pinched the recruits. At the time, when I was doing the lesson, I was teaching according to a methodology that I practised before with the Army. In hindsight, after this whole kind of, you know, the recruits' complaint and the investigation, I now admit that my methodology is, you know, out of date or, you know, there are better ways of teaching. I don't-- Q. You see, that's not consistent with the use of the word 'misconduct', is it? A. But I, at the time - I mean, I taught the BLS class the way that I thought it should be taught according to my previous training and experience from the Army. I did not engage wilfully, knowingly, maliciously or deliberately in misconduct. Q. Mr Gaite, we're not saying that it was malicious or wilful…" (Emphasis added)
Later in cross-examination there occurred the following further exchange: [9] "Q. I suggest to you that creating bruises while demonstrating BLS is, in fact, inflicting an injury rather than preventing it, isn't it? A. I did not intend to inflict an injury. I would concede that it is possible that I caused a bruise on those students, but I did not intend to inflict an injury as you have just stated. Q. Well, no, I didn't state that you intended. And I'm not suggesting for one minute that it was your intention. What I'm saying is that it simply resulted in an injury? Do you regard a bruise as an injury, Mr Gaite? A. It is possible that I caused the bruise and I did do that in the course of training students." (Emphasis added)
There is no question that Mr Gaite's behaviour was deliberate, in the sense that he intended to cause pain so as to demonstrate the use of pain stimuli and the resultant pain responses. However, he emphatically denied intending to cause any of the recruits injury or harm. In light of FRNSW's position during the hearing it did not appear that FRNSW maintained its contentions that Mr Gaite had such an intention. In any event, I accept Mr Gaite's evidence on this point.
FRNSW also placed some reliance on evidence that Mr Gaite was observed to smile during the demonstration on 5 April 2018. This was said to create a basis on which the Commission could find that the smile "was an evidence of pleasure". [10]
Mr Gaite denied that he was smiling during the demonstration on 5 April 2018. The only evidence to the contrary came from Ms Hyslop and Mr Day.
In her affidavit, Ms Hyslop deposed that "Mr Gaite appeared to smile as he did it" [11] and that "he seemed to me to enjoy it" [12] . There was no similar evidence in the statement that Ms Hyslop provided to Ms Smith during the investigation she conducted.
In his affidavit Mr Day deposed: "11. …I also observed that Mr Gaite had a smile on his face throughout which I interpreted to mean he was enjoying himself…"
Even assuming that Mr Gaite smiled during the demonstration, the evidence relied on by FRNSW does not rise higher than impressions formed by Ms Hyslop and Mr Day. There is no sufficient basis for a finding that Mr Gaite derived any form of inappropriate or improper pleasure from conducting the demonstration.
I find that Mr Gaite did not intentionally seek to cause harm or injury to the recruits, whether for the purpose of deriving pleasure or for any other purpose.

[10]

Was Mr Gaite reckless?

It is next necessary to consider FRNSW's alternative submission, namely that he recklessly did so. Mr Gaite's alleged recklessness was said to be evidenced by four factors: his failure to seek permission from the recruits to demonstrate the pain stimuli on them; his failure to make the recruits aware that he might inflict pain on them; the bruising suffered by Ms Matuzelis and Ms Tight which was said to be "indicative of excessive force"; and, the level of pain that the three recruits felt.
I received virtually no assistance from FRNSW as to the meaning to be attributed to "reckless". Given the onus borne by FRNSW in this case, it is not for the Commission to hypothesise as to the case being advanced by it. However, the following observations can be made.
The Encyclopaedic Australian Legal Dictionary contains the following definition of "recklessness": "Heedless or careless conduct where the person can foresee some probable or possible harmful consequence but nevertheless decides to continue with those actions with an indifference to, or disregard of, the consequences: R v Nuri [1990] VR 641; (1990) 49 A Crim R 253. Recklessness implies something less than intent but more than mere negligence…"
The Oxford Australian Law Dictionary defines "recklessness" as follows: "The mental state involved when wilfully engaging in an act despite a foreseen risk of the possibility of particular consequences flowing from that act. Recklessness does not require an intention to cause a particular result, but more is required than mere negligence, which depends on an objective standard of care and foresight that a reasonable person would exercise. By contrast, recklessness depends on possible consequences subjectively foreseen by the defendant."
FRNSW placed great reliance on the fact that Mr Gaite's behaviour caused injury to Ms Matuzelis and Ms Tight, in the form of bruising. As already stated, I do not accept that it was Mr Gaite's intention to cause such bruising. Indeed, it does not appear to have entered his mind that this would be the consequence of his actions. The evidence does not establish that Mr Gaite was mindful of the possible consequences of his actions but decided to continue "with an indifference to, or disregard of, the consequences".
There is also an insufficient basis on which it could safely be concluded that Mr Gaite used "excessive force". Dr Chambers would not be drawn on the level of force required to create a bruise such as that described by the recruits.
Mr Gaite's behaviour on 5 April 2018 was certainly ill-advised. I am not satisfied, however, that the evidence establishes recklessness.

[11]

The Allegations

In exercising its jurisdiction in cases such as this the Commission should endeavour to ensure "a fair go all round": Re Loty and Holloway v Australian Workers' Union [1971] AR 95 at 99. In the present case I consider that this includes a consideration of the terms of the Allegations, and the extent to which they could properly have been sustained by FRNSW.
It is necessary to consider only Allegations 2 and 3, noting that Allegation 1 was found by FRNSW not to be sustained.
Allegation 2 is on its terms a consolidation of numerous allegations. There are three separate factual allegations involving Mr Gaite's conduct towards each of Ms Matuzelis, Ms Tight and Ms Hyslop. As already stated, those facts are uncontroverted.
Out of those facts it is alleged that Mr Gaite victimised, humiliated, intimidated or threatened the recruits. Presumably, there was a purpose behind the use by FRNSW of four separate terms to describe Mr Gaite's behaviour and FRNSW intended each word have work to do. The evidence does not disclose, however, what meaning FRNSW attributed to each term. Ms Smith's investigation report does not draw a distinction between the various terms but seems to have accepted that the Allegation was sustained in all respects.
Bringing an allegation against an employee involving multiple and possibly overlapping elements can create uncertainty as to the nature of the case that the employee must meet. This does little to ensure "a fair go" to the employee.
I accept that in the circumstances the recruits may well have felt humiliated and intimidated, and possibly threatened, by Mr Gaite's conduct. What is not clear is how Mr Gaite's conduct amounted to victimisation of the recruits. It is usually the case that victimisation involves an element of reprisal or the infliction of a detriment due to particular attributes, rights or actions. The ground on which the recruits were allegedly victimised is not made clear.
Allegation 3 is even more problematic. Allegations of sexual harassment are serious. There was nothing to suggest at the time the Allegations were laid against Mr Gaite that he had engaged in any conduct of a sexual nature. Even though FRNSW ultimately found that Mr Gaite had not sexually harassed Ms Matuzelis, in the context of "a fair go all round" I have some reservations as to whether it was fair and appropriate to include the reference to sexual harassment in the Allegation in the first place.
Further, and consistent with Allegation 2, the question of whether a person "sexually harassed" a co-worker as opposed to "targeted" them may involve entirely different analyses. With the use of "and/or" between the terms there was a lack of precision in the allegation being made against Mr Gaite.
Apart from the way in which Allegation 3 was framed, I do not consider that it was made out on the evidence. It was alleged that Mr Gaite walked past two male recruits in order to pinch Ms Matuzelis on the underside of her arm, in what was a "targeted" action. This is not what the evidence demonstrated.
In the statements that they provided to Ms Smith for use in her investigation, none of Ms Matuzelis, Ms Tight or Ms Hyslop referred to Mr Gaite having walked past the male recruits in order to pinch Ms Matuzelis. During these proceedings each of Ms Matuzelis, Ms Tight and Ms Hyslop described Mr Gaite as having "walked past Phoebe". [13]
Ms Matuzelis prepared a diagram of the room in which the training took place, showing the layout of the room and the location of the participants, which she provided to Ms Smith for use in her investigation. That document was adduced into evidence.
In cross-examination Ms Matuzelis deposed as follows: [14] "Q. On this diagram you show Mr Gaite walking from the whiteboard at some point to a position between yourself and Ms [Seamer]? A. Yes. Q. That diagram shows a straight line walking directly towards you? A. Yes. Q. You'd accept, wouldn't you, that the straight line leading directly to you does not, relative to Ms [Seamer], show that he's walking past her, does it? A. It doesn't? Q. Well, it shows Ms [Seamer]‑‑ A. She's on the side in that‑‑ Q. She's shown on the side in front of a desk, isn't she? A. Yeah. It's ‑ from the way I'm sitting here, [Seamer] ‑ so he's sort of walked past her in the sense of to get to me. Q. Would it be fair to say from your diagram that from where Mr Gaite was at the whiteboard relative to Ms [Seamer] and to yourself, that he was equidistant almost between the two of you? A. Potentially, if you're calculating a turn. So at the corner of that desk, potentially it's the same distance. I couldn't say 100%. Q. He would have had to have turned right wouldn't he, to get to Ms [Seamer] based on your diagram? A. Because she was behind the desk, yeah. Yes. Q. Yes. A. Yes. Q. On one view, you'd accept, wouldn't you, that it was just as easy for him to walk to you as it was to walk to her? A. Yeah. That's what it seemed at the time. It was a straight path basically, yeah."
This evidence was consistent with that of Mr Gaite, who in cross-examination deposed as follows: [15] "Q. How did you randomly select that other recruit? A. Well, you know, in the semi-circle, the first person in front of me, I stepped to the first person in front of me, that's how I selected that person."
Ms Matuzelis' diagram also suggests that Ms Tight and Ms Hyslop might simply have been more proximate to Mr Gaite than the other recruits. It shows that Mr Day was on the ground and Mr Burger was across the room on Mr Gaite's left. Ms Seamer was seated at a table which may have impeded ready access to her.
The evidence does not support a finding that Mr Gaite walked past Mr Day and Mr Burger to get to Ms Matuzelis. It is also inconsistent with the suggestion that Ms Matuzelis was targeted in an improper way - she seems to have accepted that she was simply the closest or most convenient recruit on whom to initiate the demonstration. She did not allege that she was "targeted" in an improper way.

[12]

Commissioner Baxter's reasoning

Mr Gaite tendered into evidence handwritten notes which were prepared by Commissioner Baxter and which were included in Mr Gaite's evidence. The notes are titled "Nick Gaite - summary re decision" and appear to be an outline of Commissioner Baxter's reasons for finding that "dismissal for serious misconduct is the appropriate action". The notes give rise to several concerns.
In his notes Commissioner Baxter stated: "While not trained by FRNSW he [Mr Gaite] did have prior experience from the Army. He had also sat in on the delivery of a BLS course in FRNSW by [Station Officer] Callow, an experienced instructor, who did not demonstrate pain techniques as part of the lesson." (Emphasis in original)
This extract raises several issues. Firstly, as stated at [22] above, it was Mr Gaite's experience with the Army which in part prompted Mr Foster to ask him to undertake the training in the first place, and which Mr Gaite said he brought to the training session on 5 April 2018. Secondly, Mr Gaite denied having sat in as an observer in a BLS training session and FRNSW adduced no evidence that demonstrated Mr Gaite's attendance at that training, including from Mr Callow. Thirdly, as stated at [64] above I am not satisfied that the absence of a training technique from a particular training session would necessarily be sufficiently instructive of how all such courses are to be conducted at FRNSW.
Commissioner Baxter further stated that the "original intention of the training session was to undertake a 'mayday drag' training not BLS revision but SF Gaite decided to undertake BLS training himself." This statement is inconsistent with the evidence of Mr Gaite, Mr Lightfoot and Mr Foster. There seems to be no evidentiary basis for Commissioner Baxter's comment.
Commissioner Baxter further stated that "it is difficult to rule out selecting female over male subjects". In this regard I repeat the comments made at [97]-[100] above.
Further, in her affidavit Ms Matuzelis deposed as follows: "13. I particularly could not understand why he targeted me and Alana and Nadine and did not demonstrate on Phoebe or Andrew or Alex."
This statement does not directly allege that she and the other recruits were targeted due to their gender. There was no similar evidence in the statement provided by Ms Matuzelis during the investigation undertaken by Ms Smith.
Ms Tight deposed in her affidavit as follows: "14. I also found it strange that he walked past Phoebe in order to pinch Lisa, although the fact that Phoebe is very tall and Lisa, Nadine and I are quite small may have been the reason. He also never demonstrated on Alex."
This sentence is only an oblique reference by Ms Tight to the possibility of there being any form of gender bias in Mr Gaite's approach to the training. The statement that Ms Tight provided to Ms Smith similarly stops short of alleging that she was selected due to her gender.
Attached to Ms Hyslop's affidavit was a copy of the statement she provided to Ms Smith. It included the following: "11. I was also very concerned that did not approach either of the two males in the classroom. Neither did he approach RF Phoebe Seamer. He had to pass RF Seamer on his way to me, yet he did not stop and inflict any pain on her. On reflection, I think it was because RF Seamer is a very tall, imposing woman, an ex-netball player who is 6 feet and 2 inches tall. RF's Tight, Matuzelis and I are much shorter and, in my opinion, would not have been at all intimidating to [SF] Gaite."
In his affidavit Mr Day deposed as follows: "9. At this point I was concerned that he might do something to me that hurt, but instead he, in quick succession, demonstrated pain stimulus on Alana and Nadine and elicited from both of them obvious signs of pain. I was still on my back on the floor but Mr Gaite ignored me. He also left both Alexander and Phoebe, who is a very tall girl, alone."
Obviously, Mr Gaite demonstrated some form of selection in deciding who he would demonstrate the pain stimuli on. It is not clear why he chose the three recruits he did, although the evidence tends to suggest proximity more than any other factor. The fact that they were all female is not of itself enough to demonstrate gender-based discrimination. The witnesses offered an alternative rationale based on size rather than gender. There is no sufficient basis on which to conclude that Mr Gaite's selection of Ms Matuzelis, Ms Tight and Ms Hyslop was motivated by gender-based discrimination.
In his notes Commissioner Baxter speculated as to when pain stimuli might be used, and offered the opinion that it "makes no sense to…demonstrate on a patient that is standing or sitting as this would not be required in real life as they would obviously be conscious". There are two things to say about this. Firstly, Mr Gaite gave evidence that in his experience he has dealt with patients who have been unconscious while sitting upright. Secondly, and perhaps more significantly, Commissioner Baxter's observations rather missed the point of Mr Gaite's demonstration. It is clear that Mr Gaite intended to demonstrate how the pain stimuli are to be applied and just as much, how they feel. The positioning of the recruits when the demonstration was carried out was largely irrelevant.
Further in this regard, Commissioner Baxter observed that Mr Day had been selected as a patient to demonstrate on and Mr Gaite "then went on to demonstrate the techniques only on female trainees". The evidence showed that while Mr Gaite did not demonstrate pain techniques on Mr Day, he had used Mr Day to demonstrate other things.
Commissioner Baxter stated that Mr Gaite "shows no insight into how the trainees felt, still argues that it is a legitimate demonstration, although accepts probably not in FRNSW in 2018". Attached to Ms Clarke's affidavit are notes taken by Ms Clarke during the meeting on 14 January 2019. Those notes attribute the following statements to Mr Gaite: "Just want to get across I'm sorry I caused unnecessary pain. I'm not going to argue against it. In terms of allegations - if they'd said 'caused unreasonable pain in teaching' no argument against that. Never pretended I didn't do it. But I didn't do it as some way to intimidate or threaten. I acted in context of what the lesson was. … I'm really sorry for how they feel. Never had an opportunity for to apologise b/c [sic - because] they didn't say anything. … I can see that's not right in today's world. Need to be more conscious of how other people think about things."
The statements are inconsistent with the finding that Mr Gaite lacked any insight into how the recruits would have felt.
Commissioner Baxter also stated in his notes that "the actions of SF Gaite against these individuals undoubtedly must leave them questioning their ongoing safety, as well as their confidence in FRNSW". Once again, this statement is difficult to reconcile with the evidence. As stated above at [26], none of the recruits proactively sought to complain about Mr Gaite's conduct. Absent Mr Kranitis' involvement there is no reason to suppose that the matter would ever have come to the attention of management. In the statement she prepared for Ms Smith's investigation Ms Hyslop stated as follows: [16] "14. Prior to my discussion with Mr Kranitis, I did not feel too concerned about Mr Gaite's behaviour. Mr Gaite is not a comfortable person to be around. He is not particularly friendly. He had informed us that he would be an assessor of our competencies so I was just concerned that I did not create a bad impression on him prior to his assessment of us." (Emphasis added)
Further, Superintendent Faunce deposed that on 10 April 2018 he informed Superintendent Rankin that there was no "immediate risk for the safety of the recruits". [17] This was corroborated by Superintendent Rankin.
Commissioner Baxter further stated that he had "no confidence that if SF Gaite remains in the workforce that he would not undertake some other, inappropriate or harmful behaviour". This is a surprising conclusion and again there does not appear to be a proper basis on which Commissioner Baxter could properly have concluded that Mr Gaite represented an ongoing risk. Mr Gaite had no history of engaging in harmful behaviours. To the extent he had been the subject of two previous complaints, they did not concern behaviour similar to the conduct described in the Allegations. There was no evidence to suggest that the events of 5 April 2018 were other than a "one-off". During the meeting on 14 January 2019 Mr Gaite had expressed an acknowledgement that his behaviour was not appropriate in the context of FRNSW. The fact that he insisted that the techniques applied and training methodology were otherwise legitimate does not suggest that Mr Gaite intended to similarly conduct himself in the future.
Finally, in his notes Commissioner Baxter stated as follows: "I also note the two other recorded occasions that SF Gaite has been counselled through Local Management Action from his supervisors after complaints/concerns had been raised by other trainees on other courses. SF Gaite was cautioned/counselled that he needed to be cautious of 'his words and actions need to be carefully considered'. Both of these issues related to inappropriate remarks/comments and a bullying manner (perceived) in the workplace. For all of these reasons I find that dismissal for serious misconduct is the appropriate action." (Emphasis in original)
From the language he adopted, it is clear that the prior complaints against Mr Gaite formed part of "all of [the] reasons" on which Commissioner Baxter made his decision to dismiss Mr Gaite. There is no doubt that an employer is generally entitled to rely on an employee's employment history to determine what disciplinary action should be taken in a particular circumstance. This is of course subject to ensuring that the employee is treated fairly, including by only affording prior issues the weight they should properly bear.
It is in relation to Commissioner Baxter's reliance on his disciplinary history that Mr Gaite challenged the fairness of the dismissal process. Mr Gaite submitted that on 14 January 2019 he was "confronted without warning with two historical allegations of misconduct". [18] However, the letter to Mr Gaite from FRNSW dated 19 November 2018, in respect of which the meeting on 14 January 2019 was convened, made it clear that amongst the matters that Commissioner Baxter would consider was Mr Gaite's employment history with FRNSW.
Further, it was Mr Gaite's evidence that at the meeting on 14 January 2019, in relation to his employment history, Commissioner Baxter said only "You have had two other problems in the past with recruits". [19] Mr Gaite then proceeded to make rather detailed submissions in respect of each issue and provided relevant documents to Commissioner Baxter. The evidence suggests that it came as no surprise to Mr Gaite that the issues were raised and he was well prepared to respond to them. I find that there was no procedural unfairness, and certainly no prejudice, to Mr Gaite in this regard.
Notwithstanding that conclusion, there remain the concerns outlined above as to the reasoning behind Commissioner Baxter's decision to dismiss Mr Gaite. FRNSW elected not to call Commissioner Baxter to give evidence. There was therefore no opportunity to address these concerns or to ascertain the extent to which any particular matter had a material bearing on his decision.

[13]

Did Mr Gaite engage in misconduct?

I am satisfied that on 5 April 2018 Mr Gaite inappropriately inflicted pain on Ms Matuzelis, Ms Tight and Ms Hyslop through the demonstration of pain stimuli on them. I do not consider that he deliberately sought to cause harm or injury to them, or derived any form of improper enjoyment from doing so. I also do not accept that his behaviour amounted to the reckless infliction of injury on the recruits.
Mr Gaite's conduct on 5 April 2019 was certainly ill-advised, and reflects poorly on his judgment. It is difficult to comprehend how he could have considered it sensible, let alone appropriate, to inflict pain on the recruits without warning or consent. The evidence of the recruits as to the pain that they felt and the bruising they sustained, suggests that Mr Gaite applied a significant amount of force in the demonstration.
However, the conduct must be considered in the context in which it occurred, namely a lesson which was interactive in nature. Mr Day had been required to assume the position of a "model patient" and he was used to demonstrate certain techniques (although I accept that no pain stimuli were demonstrated on him). Ms Seamer demonstrated a pain stimulus on Mr Gaite, albeit with permission. However misguided he may have been Mr Gaite was seeking to demonstrate techniques which arose directly out of the lesson he had been asked to deliver.
FRNSW submitted that Mr Gaite's conduct amounted to misconduct which was so fundamental to his employment that it justified his dismissal. It relied on North v Television Corporation Limited (1976) 11 ALR 599. In that case Smithers and Evatt JJ stated at 606-607: "It is of assistance to consider the expression 'misconduct' by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression 'misconduct' as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment. This situation would arise if there were conduct inconsistent with the fulfilment of the express or implied conditions of service. It is conduct of that kind which will justify dismissal at common law."
In the absence of evidence which demonstrated that Mr Gaite intentionally or recklessly inflicted harm or injury on the recruits, or was guided by unlawful or improper motivations, I do not accept that Mr Gaite's behaviour is misconduct of a kind which would justify his dismissal at common law.
I accept that Mr Gaite's conduct was in breach of the terms of the policies and procedures referred to at [15]-[18] above. The conduct was also contrary to regs 16(a), (c) and (e) and 17(1)(h) of the Regulation. It would follow that the behaviour would be "misconduct" as defined by reg 33 of the Regulation.

[14]

Was the dismissal harsh, unreasonable or unjust?

Other than in relation to the consideration by Commissioner Baxter of his prior disciplinary history, Mr Gaite raised no substantive challenges to the procedural fairness of the process resulting in his dismissal. There was a suggestion that FRNSW did not, and should have, interviewed a Jarrod Miller, who was a Senior Firefighter present at the commencement of the training session on 5 April 2018. He was not, however, present when Mr Gaite demonstrated the pain stimuli on the recruits and it is not clear whether any evidence from him would have been material. I am not satisfied that this constituted a denial of procedural fairness.
There is no suggestion by Mr Gaite that FRNSW has failed to comply with its procedural obligations under the Regulation.
For these reasons the dismissal cannot be impugned on the basis of a lack of procedural fairness or similar irregularity.
To the extent that Mr Gaite engaged in behaviour that amounted to "misconduct" for the purposes of the Regulation, I do not consider that it provided a sufficient basis for the termination of his employment. In reaching that conclusion I have had regard to Mr Gaite's employment history, including the complaints from 2016 and 2017. I find that the dismissal was unjust.
The approach to the assessment of whether or not a dismissal is harsh is set out in the following passages in Department of Health v Perihan Kaplan: "[27] …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.' … [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."
In Wattie McColl JA made the following observations: "[156] I have already referred to the tripartite test posed by s 84 of the IR Act as to whether an employee's dismissal was 'harsh, unreasonable or unjust' as explained in Byrne. In addition to the matters there identified, in considering the possibility that dismissal might be 'harsh', (although not unjust or unreasonable), it is necessary not only to identify any misconduct on the employee's part said to have justified the termination, but also to 'weigh in the balance any "mitigating circumstances"…including length of prior employment, the employment record and favourable character considerations'." (Footnotes omitted)
Mr Gaite is 51 years old. He has more than 20 years of largely unblemished service with FRNSW. He tendered unopposed into evidence statements from colleagues at FRNSW attesting to his good character. Weighing these matters in the balance against the misconduct in which Mr Gaite engaged supports the conclusion that the dismissal was harsh. Further, I consider that the dismissal was disproportionate to the gravity of the conduct in which Mr Gaite engaged. I find that the dismissal was harsh.

[15]

Remedy

Mr Gaite seeks reinstatement. It is well established that under the Act reinstatement is the primary remedy if a finding is made that a dismissal is harsh, unreasonable or unjust: Raeburne v Department of Justice and Attorney General [2011] NSWIRComm 48 at [62]-[63]. As the primary remedy is reinstatement, the Commission must also determine whether reinstatement is impracticable: Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 ("Perkins").
Mr Gaite's age, years of service and record weigh in favour of an order for reinstatement.
FRNSW submitted that reinstatement or re-employment would be "impracticable and inappropriate in the circumstances". To the extent that these submissions are to be read as requiring a finding that reinstatement would be both impracticable and inappropriate, I do not accept them. The test under the Act is whether reinstatement is impracticable, not inappropriate.
FRNSW did not adduce much evidence as to the practicability or otherwise of an order for reinstatement. When questioned on this Mr Holland referred me to the evidence of the recruits "regarding their attitude and their fears should Mr Gaite have continued in employment". [20] That evidence is quite sparse.
Ms Seamer deposed that following the incident she requested of one of her superiors that she have no further lessons with Mr Gaite. Ms Hyslop stated that she did not complain about Mr Gaite's behaviour as she did not wish to upset a senior firefighter, presumably out of concern for future ramifications. Ms Tight also deposed as to her concerns for her career at the time, although in her statement to Ms Smith, Ms Tight stated that on Graduation Day she met Mr Gaite who "said something positive about being finished at the College and didn't say anything untoward". [21]
It is also relevant that as at 10 April 2018 both Superintendent Faunce and Superintendent Rankin did not consider that Mr Gaite posed an immediate risk to any of the recruits (see [118] above).
The only other evidence which might have a bearing on the practicability of reinstatement, to which my attention was not specifically drawn, is that of Ms Clarke. In her affidavit Ms Clarke deposed as follows: "32. One of the focus areas of the organisation currently is creating an inclusive culture and removing unwanted behaviours. In my role, I am implementing and monitoring policies and processes to ensure unwanted behaviour such as those demonstrated by Mr Gaite, do not occur. 33. In coming to a final determination as to penalty after misconduct has been found proven, the particular conduct of the individual must be considered by the decision-maker in the context of current standards of behaviour required of all FRNSW employees. Specifically, behaviours or open 'ways of doing things' that may have been appropriate or accepted in terms of conduct 10 years ago may not be accepted now… The improper exercise of power by those in leadership roles quite simply cannot be tolerated in the modern FRNSW context."
As much as FRNSW is to be applauded for seeking to create an inclusive culture and removing unwanted behaviours, it has not demonstrated that Mr Gaite's reinstatement would necessarily be inimical to these objectives. I do not consider that there is a proper basis to assert that the events of 5 April 2018 comprised an "improper exercise of power".
FRNSW submitted that reinstatement was not practicable due to its "loss of trust and confidence in Mr Gaite". Once again, there is little evidence to support this submission. There was no reference to "loss of confidence" in the letter of 19 November 2018 or the termination letter. Commissioner Baxter was not called to attest to any such loss of confidence and the basis for that. None of the senior staff called by FRNSW deposed that they would have any difficulty working with Mr Gaite in the future. In effect, FRNSW requests that the Commission infer from the facts that FRNSW would have lost confidence in Mr Gaite. Leaving aside the question of whether it should be left to the Commission to draw such inferences, I do not consider that such an inference can properly be drawn from the evidence.
On this point, the following passage from Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325; [2001] NSWIRComm 117 is informative: "35. The appellant sought reinstatement and compensation for wages lost as a result of the dismissal. In considering the practicability of reinstatement, we are very mindful of the approach adopted by a Full Court (Wilcox CJ, Marshall and North JJ) of the then Industrial Relations Court of Australia in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at pp 191-192 where their Honours observed that 'each case must be decided on its own merits' but that 'in most cases, the employment relationship is capable of withstanding some friction and doubts'. As their Honours observed further, 'what is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive' and that 'if the employer is of even average fair-mindedness, (the problems) are likely to prove short-lived'. Those comments have been cited with approval by Full Benches of this Commission in Hollingsworth v Commissioner of Police (No 2) (88 IR at pp 341-342), CCH Australia Ltd v Bowen (1998) 79 IR 206 at pp 217-218 and Oswald v New South Wales Police Service (1999) 90 IR 42 at pp 67-68. We affirm the approach as appropriate in the present case…"
FRNSW submitted that reinstatement was not practicable as Mr Gaite's "failure to accept responsibility for his conduct and his insensitivity to his behaviour [was] inimical to and prejudicial to staff morale". For the reasons stated previously in this decision, I do not consider that the evidence supports this submission.
Finally, in resisting any order for reinstatement FRNSW relied on "Mr Gaite's fundamental failure to follow obligations imposed under FRNSW policies, procedures and the Code of Conduct". The Code of Conduct is not in evidence. Leaving that aside, the submission goes little further than to suggest that if an employee is found guilty of misconduct, reinstatement must necessarily be impracticable. I do not accept that submission.
In the witness box, Mr Gaite presented as a challenging personality. He was a sometimes uncooperative witness and his acceptance of wrongdoing before the Commission was in some respects begrudging. I am however satisfied, on balance, that Mr Gaite appreciates that what he did was wrong. He is aware that the demonstration of pain stimuli on co-workers is not to occur at FRNSW. I have no doubt that with the experience he has been through, and as a consequence of the orders I propose to make, Mr Gaite will be very circumspect about engaging in any physical contact with a co-worker without express consent.
In all the circumstances I do not consider that reinstatement would be impracticable. I propose to make an order that Mr Gaite be reinstated. I will defer the date of effect of that order for two weeks to allow FRNSW to make the necessary arrangements to reintegrate Mr Gaite into the workforce or to otherwise consider its position in relation to this decision.
By s 89(3) of the Act, the Commission may, if it orders reinstatement, further order that the employer pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed. In the circumstances of this case I do not propose to make such an order. This is for two reasons. Firstly, Mr Gaite engaged in misconduct as defined in the Regulation. While it did not warrant his dismissal it otherwise called for a sanction of some kind. Secondly, Mr Gaite gave evidence under cross-examination that suggested he had taken no steps to mitigate his loss as a result of the termination of his employment.

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