REMEDY
118It was submitted on behalf of the Respondent that the preferable finding is that the dismissal of the Applicant was justified.
119Alternatively, and although the Respondent was not conceding that the termination was harsh, unjust or unreasonable, it was submitted that should the Commission arrive at such a conclusion, then it should not exercise its discretion to order a remedy that would re-establish the employment relationship as it would not be appropriate.
120A lack of trust and confidence is a ground for refusing the remedy of reinstatement. It was submitted that there was nothing ventilated during the course of the proceedings that could possibly restore trust and confidence in the Applicant. In fact, the Respondent's loss of trust and confidence in the Applicant had been reinforced by the Applicant's conduct as a witness, by his lack of candour and honesty, and the absence of any appreciation by the Application as to why his conduct was, and is viewed, so seriously.
121It was noted that the Applicant changed his mind, throughout the proceedings, regarding whether he was seeking reinstatement or re-employment. Having first stated that he was only requesting compensation the Applicant then informed the Commission by facsimile on 16 August 2010 that he was seeking reinstatement. On the third day of hearing, Counsel for the Applicant advised the Commission that reinstatement and reemployment with the Respondent were not pressed and the Applicant wished it to be known that it was ' not a recent decision based on those allegations contained in the objected parts '. The claim for reinstatement was confirmed on the fourth day of hearing. It was submitted that the lack of commitment by the Applicant to be reinstated indicated that he was not willing to return to work with the Respondent. Aside from the current proceedings, the Applicant has not sought reinstatement or re-employment. He has also not sought work with another employer, as evidenced by the Applicant's failure to produce any documents in accordance with the Respondent's Notice to Produce.
122The impracticability of reinstatement or re-employment in this case was also manifest because of the Respondent's obligation under s119 of the Health Services Act, which requires that protection of patients, clients and children are to be the paramount consideration of the Respondent when disciplining a staff member.
123It was submitted that neither the Respondent nor the Commission can have the necessary degree of confidence that the Applicant would not behave aggressively towards patients and fellow staff members in the future. It was open to the Applicant to undergo counseling or provide some similar undertaking. It was pointed out that the Applicant's demeanour was an absolute unwillingness, even disbelief, that any further training or counselling would be of benefit to him.
124In Budlong v NCR Australia Pty Ltd [2006] NSWIRComm 288 at [105] to [108] the Full Bench of the Commission discussed the concepts of trust and confidence in circumstances where the Courts and the Commission are considering whether to grant reinstatement:
106 1n Plummer v Stannard Bros Launch Service (2005) 1451R 111 the Full Bench stated the position as (at 115):
Reinstatement is the primary remedy under s 89 of the Act: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at (34J; Little v Commissioner of Police (No. 2) (2002) 112 IR 212 at (88j; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37 at (125). Other remedies may only be ordered if reinstatement is considered to be impracticable. That requires the member of the Commission, in all cases where relief is to be ordered, to give active consideration to the practicability of reinstatement. Indeed, we considers 89(5) requires a finding that it would be impracticable to reinstate the appellant prior to making an order for compensation and in the process of making that finding to give reasons: Entertainment Distributors Company Pty Limited and Anor v Bumard and Ors (1993) 49 IR 446 at 453.
107 The Full Bench in Little (No 2) considered the test to be applied as to the practicability of reinstatement of re-employment. At paragraph [91] the Full Bench stated:
It is in this light that we turn to consider the question of the practicability of reinstatement of re-employment. In this respect, we propose to apply the test in Perkins v Grace Worldwide (Aust) Pty Limited (1997) 72 IR 186 at 191-192 (which was adopted in Hollingsworth v Commissioner of Police at 341-342).
108 The focus in Perkins was on the issue of whether a loss of trust and confidence was a relevant consideration in determining whether reinstatement was impracticable and it is worth repeating what the Full Bench of the Federal Court had to say:
Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Limited (Wilcox CJ, von Doussa and Marshall JJ, 13 December 1996, not yet reported). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushell (1933) 49 CLR 66 at 81-2 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based .
At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act
If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.
Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee; and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive . Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.
It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be, of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.
125Of major concern to the Respondent was the apparent failure of the Applicant to understand the severity and potential consequences of his actions:
125.1 He showed no contrition or remorse for the pain and anxiety caused to Patient X or his work colleagues, particularly Nurse Murray. That was evident during the proceedings and also evident in the document prepared by the Applicant and addressed to the nursing staff at the Acacia Ward. The document was posted on the staff notice board and made several disparaging comments about Ms Murray. When that concern was put to him, his response had been, '1 don't understand why 1 would'.
125.2 When it was pointed out to him that he had a commitment to apologise when he got something wrong, his response had been, 'But 1 haven't got it wrong'.
In Brown , the employee's failure to express contrition or to accept that his behaviour had been wrong contributed to his dismissal being upheld.
126The Applicant failed to appreciate that his conduct had very serious consequences. In addition to a criminal investigation and reporting to the NSW Nurses and Midwives Board, his actions had placed a patient at risk of serious or fatal harm.
127Nurse Murray's serious concern in that regard was justified when she asked Dr Fostey the following question while reporting the incident to him:
Nurse Murray : "What's the difference between a sleeper ` hold and choking someone to death?"
Dr Fostey: About 6 seconds".
128It was concluded that, in the absence of any appreciation as to why his conduct was, and is viewed, so seriously, the Commission should refuse to exercise its discretion to order the Applicant's reinstatement.
129The Respondent has reasonable cause to be concerned about the Applicant's ability to manage his aggression and work in a safe manner with patients. Following his dismissal, the Respondent received a number of complaints, detailed in the evidence of Mr MacMillan and Mr Chrystal, regarding the Applicant's treatment of patients. The Respondent also conducted an i nvestigation which unco vered evidence of the Applicant assaulting and being verbally abusive to two other patients.
The Respondent's policies, procedures and training regarding aggression management in the hospital are soundly grounded in the need to provide a safe place of work for its staff and for patient care. The Applicant's flagrant breach of those policies/procedures, it was submitted, are a relevant consideration in determining reinstatement or re-employment and count against a practical re-establishment of the relationship bearing in mind that the Applicant has not demonstrated that he will be able to work safely with patients if he is reinstated or re-employed.
130The Applicant is seeking the primary remedy available under the Act - an order of reinstatement, with back pay and continuity of service.
131It was argued that there was no evidence which would disclose a breakdown in trust and confidence in the Applicant sufficient to render that primary remedy impracticable.
132The allegations that were made after the Applicant, post termination, were not advanced by the Respondent in the context of termination. The Commission was asked to infer therefore that even if those allegations were sustained, which was denied by the Applicant, they would not constitute grounds for dismissal and would not render reinstatement impracticable.
133It was submitted that the question of remorse was not put to the Applicant in cross-examination. In addition, it was considered to be a preposterous submission to advance on behalf of the Respondent when all the Applicant was doing was responding to an urgent call for assistance from Ms Murray.
134It was also submitted that the so-called failure on the part of the Applicant to undertake training, counselling or provide some similar undertaking was not relevant to the Commission's consideration as to whether re-instatement or re-employment are practical remedies in the present circumstances.
135Finally, it was further submitted that it was not open to the Respondent to contend that the Applicant has "repeatedly" breached the Respondent's policies when, on its own evidence, there was only one example where the Respondent is certain that the Applicant has breached the policies.