HREA on behalf of Robert Drinan v Hunter Area Health Service

APPLICANT: Mr R Hull Health & Research Employee's Association of NSW

RESPONDENT: LEGAL REPRESENTATIVES: Mr R De Meyrick of Counsel

SOLICITOR: Mr J Pomeroy Sparke Helmore Solicitors

JUDGMENT: - 9 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 18 October 2002 Matter No IRC 4434 of 2002 The Health and Research Employees' Association of New South Wales (On Behalf of Robert John Drinan) and Hunter Area Health Service Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2002] NSWIRComm 270 1 This matter was subject to arbitration on 26 and 27 September 2002 following unsuccessful attempts at conciliation. 2 On hearing Mr R Hull of Health and Research Employees' Association of New South Wales (HAREA) appeared on behalf of Mr Robert Drinan, the applicant. Mr R De Meyrick of counsel, instructed by Mr J Pomeroy, solicitor of Sparke Helmore, appeared on behalf of the Hunter Area Health Service, the respondent employer. 3 Mr Hull brought evidence from Ms Pamela Borthwick, employed by the respondent as Assistant Manager Security, Greater Newcastle Sector, and as such the applicant's supervisor; Mr Rodney Prouse, employed by the respondent as a Security Officer; and the applicant. Mr Hull also produced an affidavit from Mr Raymond Marsh, employed by the respondent as Nurse Manager Level 2, After Hours Supervisor, Morisset Hospital, who was not required for cross examination. 4 Mr De Meyrick brought evidence from Dr Colin Kable, employed by the respondent in his capacity as a Psychiatrist; Ms Jacqueline Causer, employed by the respondent as a casual Registered Nurse; and Mr Paul Moore, employed by the respondent as a Human Resources Consultant, who was not required for cross examination; and Ms Karen Wales, employed by the respondent as a Registered Nurse. THE EVIDENCE 5 The applicant commenced employment with the respondent on 26 September 1994 as a Cook, a position he occupied until 1999 when he was redeployed into the position of Security Officer as part of a restructure of the respondent's organisation. The applicant's employment was terminated on 4 August 2002. 6 A useful chronology of relevant events emerges from the evidence, which I set out below: · 1987 - Applicant obtained Security licence pursuant to the relevant legislation · October 1999 - Applicant attained Certificate 2 in Security on completion of an eight day course conducted by Websters Training Academy. The cost of the course and licence fee was paid by the respondent. · November 1999 - Applicant completed the Safety and Survival Skills - Level 1 Course, conducted by Websters Training Academy. Costs associated therewith paid by the applicant. · 17/6/02 - Incident giving rise to termination of applicant's employment · 27/6/02 - Applicant suspended from duties by the respondent · 3/7/02 - Fact finding interview conduced by respondent · 18/7/02 - Further interview by the respondent concerning events of 17/6/02 · 29/7/02 - Written advice to the applicant of termination of his employment, effective 4 August 2002. · 1/8/02 - Memorandum issued to the applicant advising of his enrolment in an aggression minimisation course to be conducted on 26 and 27 September 2002. · 4/8/02 - Termination of the applicant's employment effected on the basis of a finding by the respondent that the applicant had slapped a patient on the side of the face in an instantaneous response to her spitting in his face. The respondent considered this a breach of the standards expected of a Security Officer. 7 There is no dispute between the parties that the applicant's employment had been incident free, without warning or reprimand prior to the events of 27 June 2002. 8 The applicant's unchallenged evidence is: 9. Since October 1999 I have worked as a Security Officer at various hospitals within the Newcastle area including Royal Newcastle, Morisset, Wallsend, Belmont, James Fletcher and John Hunter on a relieving basis. The majority of my shifts were worked at the John Hunter Hospital and for a period of approximately 3 months in the year 2000 I worked continuously at Morisset.

10. During the time I have been employed as a Security Officer I have encountered many incidents that were violent, aggressive, dangerous and hazardous to the health and safety of staff, patients, visitors and myself. On one occasion I was hit over the head with a bottle at the John Hunter Hospital when two other Security Officers and myself were involved in an incident involving approximately 60 youths who were clearly affected by alcohol. On one other occasion I was bitten by a female patient.

11. Potentially violent incidents also occur on a regular basis within the hospital environments and on many occasions myself and other Security Officers are able to defuse these situations by talking and reasoning with the person or persons acting aggressively. 9 The evidence of Ms Borthwick is that the applicant had carried out his duties in a diligent and professional manner. 10 The evidence is that none of the training or accreditation courses attended by the applicant were specific to health care security, and that none of the other participants in those courses were engaged in health care. 11 There is little conjecture between the parties concerning the broader circumstances of 27 June 2002. On that day the applicant was rostered to work from 7.00 am to 7.00 pm, undertaking security duties at John Hunter Hospital as required. During the course of his shift the applicant and a fellow Security Officer Rodney Prouse ('the security officers") were requested to assist medical staff in Ward J2 who were experiencing difficulty with two female juvenile patients. 12 The first patient Miss "A", aged 14 years, had been admitted as a result of alcohol abuse and had been identified as suffering from unspecified mental health problems. The second patient, Miss "B", aged 12 years, had been admitted suffering from manic depressive disorder. 13 The evidence of the applicant is that he was familiar with Miss "B" as she had been involved in events in the hospital over the previous 2 days; and that he had been called to Ward J2 on two occasions earlier on the 27 June 2002 to assist staff who were having problems with the two patients. 14 The evidence is that on the afternoon of 27 June 2002 both patients ran away from the ward and that the security officers were required to locate and return them. The patients were found in the vicinity of a bus stop, trying to obtain cigarettes from members of the public. The security officers successfully persuaded the patients to return to the ward without incident, despite being met with abuse and an initial refusal by the patients to return to the ward. 15 During the course of return to the ward, the patients again absconded, running through the corridors and hiding in a stairwell. The security officers separated to conduct a search. Upon arrival at the ward the applicant found that the patients had returned thereto. Dr Kable, the nursing staff and Security Officer Prouse were also present in the ward. The security officers were requested to remain until the patients "settled down". 16 The security officers and nursing staff were informed by Dr Kable that Miss "B" was to be "scheduled", pursuant to the Mental Health Act 1990, and relocated to James Fletcher Hospital; and that officers of the NSW Police service had been called to undertake that task. Miss "A" was to be discharged and her family would collect her. 17 The uncontroverted evidence is that both patients continued to be aggressive and abusive towards the security officers. The patients were observed destroying furnishings and fittings within the room; playing with the tap of an oxygen bottle, turning it on and off; pulling the nurses' call buzzer from the wall thereby activating an alarm which could be heard throughout the ward; and throwing lollies and other small objects at staff. The security officers were aware that the patients had a cigarette lighter and were concerned at the potential for greater harm and damage. 18 The security officers suggested to Dr Kable that the patients be separated. Dr Kable's first response was "to leave them together for the time being", subsequently concurring with the separation. 19 Dr Kable's evidence is that he recognised the situation as volatile and potentially dangerous, however was of the opinion that separating the patients may inflame the situation. Dr Kable deposed that he believed that Miss"A's" parents had remained at the hospital and would collect her very soon, thus providing an effective catalyst for separation. Dr Kable later learned that Miss "A's" parents had left the hospital and would be some time in returning. 20 Dr Kable's evidence is that he did not object or intervene when the security officers decided to separate the two patients as any display undermining authority of hospital staff would certainly worsen the situation. 21 The evidence is that the security officers requested Miss "A" to leave the room. There was no use of force and there was no significant resistance, however Miss "A" questioned their right to do so and was told that authority had been given by Dr Kable. 22 Once Miss "A" was out of the room Security Officer Prouse returned to Miss "B"; the applicant remained with Miss "A". The applicant informed Miss "A" that she could not return to the room with Miss "B", whereupon she verbally abused the applicant and spontaneously spat in his face. The applicant's evidence is that he reacted by reaching out to push her away so that she was no longer facing him, in an attempt to prevent her from spitting in his face again. The applicant concedes that at this time he uttered the words "you bitch". His evidence is that he used his right hand in a back-handed motion, first making contact with the patient's right shoulder, then slipping up to the side of her face. The applicant's evidence is that his reaction was an instantaneous reaction, however he retained control, fending off Miss "A" without force, or malice. 23 The evidence of Nurse Jacqueline Causer is that the applicant struck the patient with his right hand in a forward, open handed, round arm motion, causing an audible slapping sound. 24 The evidence of Nurse Karen Wales is consistent with the description given by Nurse Causer. 25 Dr Kable deposed that he observed the applicant make an open handed swing with his right arm, catching the patient on the side of the head above the ear, in what is probably best described as a cuff across the side of the head. 26 All witnesses observed the applicant clean a large amount of spital from his face and glasses. 27 The patient then launched into a further tirade of abuse, threatened to have the applicant charged with assault, and commenced punching him in the stomach and chest. The applicant held the patient's arms to prevent her further punching him. The patient was then taken by nursing staff, and on departure again spat at the applicant's head and neck, to which he made no response. 28 Shortly after this incident Miss "A's" parents arrived and sought permission from Dr Kable for her to say goodbye to Miss "B", to which Dr Kable agreed. When Miss "A" was subsequently leaving Miss "B's" room with her parents she stopped in front of the applicant, offered further abuse, and again spat on his chest. The applicant made no response to this attack. Miss "A" was then taken from the ward by her parents, her father subsequently returned to the ward and apologised for his daughter's behaviour. 29 Some little time later Police Officers arrived to execute the scheduling and transport of Miss "B". The applicant reported the circumstances of the exchange between himself and Miss "A" to Constable Davies of Waratah Command. Constable Davies' notes are tendered within the applicant's affidavit (Ex 4). Constable Davies was not called to give evidence. 30 The information given by Nurse Causer to the fact finding enquiry conducted by the respondent is particularly incisive. This is found in Attachment B to Ex 7, her affidavit, wherein the following exchanges are recorded: I. WILKINSON: No, but from your perspective she (Miss "A") was in control of her behaviour?

J. CAUSER: Yes, and she was excited when he hit her, because I think she felt she had won the game, you know what I mean? But the police arrived soon after that, because they were taking the other girl, and the security guard, he was really upset, because I think he knew he had - you know - and he talked to the police officer and told him what had happened, and he was there at the time.

I. WILKINSON: So he voluntarily, when he realised what had happened, he then- -

J. CAUSER: I think he knew the moment it happened that he had slipped up. … …

I. WILKINSON: I'm sorry that you had to get involved, and it has obviously been very stressful and a very unpleasant event, but it is good to get your side of the story, obviously you were on the spot and you could see what happened. Were you aware of any specific instructions given to the security people on how to handle this particular situation? Were any precise instructions given? J. CAUSER: There weren't, really. When they came - they ran off and they went and found them and brought them back, and then they stayed because they were so excitable and sort of could become violent, and I think Dr Kable had asked, "The other girl is getting scheduled, be there." I think there is different rules, the security guards can restrain them when someone is being scheduled. But there wasn't really, and it's often like that, I think. I'm not quite sure, because we often call security on J2, and I'm not quite sure they know what we want them to do.

J. CAUSER: Yes, it's nice to have big blokes there. But sometimes, I'm not sure that they know quite what we want them to do.

I. WILKINSON: We need to look at that, that's for sure . SUBMISSIONS 31 Both Mr Hull and Mr De Meryck referred me to a number of decided cases in which the appropriate principles are set out and discussed: Samad v Public Service Board; Government & Related Employees Appeal Tribunal, Appeal No 1395 of 1982, 5 November 1982; Federated Miscellaneous Workers' Union of Australia, W.A. Branch v Board of Management Narambeen District Hospital ; a Decision of the Supreme Court of Western Australia Industrial Appeal Court, in matter no IRC 11 of 1991, February 1992 Muncaster and Hunter Area Health Service ; a decision of Harrison CC, as I then was, in Matter No IRC 2589 of 1994, 23 February 1995; Wallace v Grace McKellar Centre , (960615) a Decision of Murphy JR of the Industrial Relations Court of Australia, 20 December 1995 Wyndham Lodge Nursing Home Inc. v Reader ( 960131) a Decision of a Full Bench of the Industrial Relations Court of Australia (Wilcox CJ, Ryan and North JJ), 15 April 1996 (1996) 65 IR 253; Eon Robinson v Northern Sydney Area Health Service (970220), a Decision of Locke JR of the Industrial Relations Court of Australia, 30 June 1997; Stewart & Hunter Area Health Service , a Decision of the Commission as presently constituted in Matter No IRC 5299 of 1998, 11 November 1998. 32 Mr De Meryck relied heavily upon the principles established in Samad's case, expressed by the Tribunal in the following terms: " The community looks to the respondent employer to ensure that persons under institutional psychiatric care are not subjected to assault by those whose duty it is to care for them. It expects that employees who breach this requirement will not be retained in that employment. The Tribunal considers the circumstances of this case do not permit any result other than one which demonstrates that assault by employees of persons resident in State institutions will not be tolerated."

33 These principles were applied in a Judgment of the Crown Employees Apeal Board, brought to the attention of all nursing staff in Circular 68/P.H.89 of 29 November 1968. This Judgement commences with the statement: "It is a fundamental rule of psychiatric nursing that patients must not be subjected to violent treatment or violent correction by the nursing staff." 34 Mr De Meryck further relied upon the application of these principles in Stewart's case, wherein the Commission as presently constituted held: "It is not disputed that the applicant struck a patient. The mitigating circumstances put go to the events surrounding that act. If I accept the applicant's contention that she struck the patient in an uncontrollable instinctive reaction, contributed to by the events of the day commencing with the punch to her face compounded by the injury to her wrists and triggered by the spit in her face, that fault is not moved from her to the patient." 35 Mr De Meryck submitted that the applicant's utterance of the exclamation, "you bitch", at the time of the event and the subsequent failure to include that aspect in a description when he was asked for all particulars, specifically whether he had said anything, are indicative of a violent disposition by the applicant, a comprehension that he had misconducted himself, and an exercise in deceit. 36 Mr Hull did not resile from the principles of conduct earlier relied upon by Mr De Meryck. 37 Mr Hull submitted that the applicants in all matters earlier referred to were trained medical or nursing staff with appropriate qualifications to deal with psychiatric patients. Mr Hull made the distinction that the security officers had not been adequately trained or equipped to deal with the circumstances confronting them on the afternoon of 27 June 2002, 38 Mr Hull further submitted that the actions of the applicant in this matter are properly distinguished from those in the cases cited by characterisation of the actions of the applicant as defensive as opposed to retaliatory and correctional. 39 Mr Hull submitted that, given the differences in size, the applicant being a large man and Miss "A" a slight girl, had the applicant hit her with a forceful, round arm motion, the blow would have moved Miss "A" across the room or off her feet. This did not occur on any account of the event. CONSIDERATION 40 There is no dispute between the parties that the action of the applicant was an instantaneous response to the patient spitting in his face. 41 On the evidence before me I find that the actions of Security Officer Drinan was not a slap on the side of the face of the patient, as found by the fact finding inquiry conducted by the respondent. 42 I find on the evidence of the applicant, supported by Dr Kable, that the action of the applicant is properly described as a cuff across the side of the head, above the hairline, in a forward thrust rather than swinging arm motion, which had little if any physical effect, leading to the view that the applicant's action was a restrained and defensive response to the provocation and surprise of the patient spitting in his face. 43 On the evidence of Dr Kable all staff were dealing with a risky and potentially violent situation, which was the reason security officers were present. There is some conjecture as to whether separating the two patients at the time was appropriate. There is no doubt that whilst the two patients were together the situation was deteriorating. 44 Mr Drinan's action was wrong. He acknowledges that in these proceedings and by his subsequent conduct at the time of the event. Subsequent to being spat on, the applicant was punched and spat on a number of times by the patient and exhibited appropriate restraint. 45 At the time the applicant struck at the patient, he uttered the expletive "you bitch". Mr De Meyrick put that I should regard this simultaneous comment as evidence of personal affront and retribution, rather than self defence. This interpretation is open, however, in all of the circumstances, it is in my view more indicative of surprise. The fact that this comment was not mentioned in earlier interviews is not properly held against the applicant, who readily conceded when put to him in cross examination. 46 Within the high standards of conduct required of health care professionals there must be an acceptance that actions in self defence are permissible in a measured and controlled manner. 47 Having regard to the lack of specific training, the applicant's good employment record, and the defensive nature of his actions, I conclude that termination of the applicant's employment was harsh, unreasonable and unjust. 48 Termination of employment should not be considered as the only alternative open to an employer. Whilst this experience has been unpleasant and harrowing, it adds to the experience of the applicant which need not be lost to the employer. The termination of the applicant's employment does nothing to maintain the high standards required of health care professionals. 49 It is, in my view, appropriate that specific education and training be developed for security officers engaged in the health care industry, and that a clear protocol of communication between medical practitioners, nursing staff, and security officers be put in place in order that security staff, when called to assist, are left in no doubt as to what is required of them by medical and nursing staff. 50 I order reinstatement of the applicant to his former position, without loss of wages or continuity of employment, in terms no less favourable than that occupied at the time of his termination. 51 I order compensation of an amount equal to the ordinary time earnings from the date of the applicant's dismissal to the date of reinstatement to employment. 52 Matter No IRC 4434 of 2002 is so concluded. oo0oo

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 18 October 2002 Matter No IRC 4434 of 2002 The Health and Research Employees' Association of New South Wales (On Behalf of Robert John Drinan) and Hunter Area Health Service Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2002] NSWIRComm 270 1. Pursuant to s89(1) of the Industrial Relations Act 1996 Hunter Area Health Service is ordered to reinstate Mr Robert John Drinan to his former position, on terms no less favourable than those applicable had he not been dismissed.

2. Pursuant to s89(3) of the Industrial Relations Act 1996 I order Hunter Area Health Service to pay Mr Robert John Drinan an amount equal to the ordinary time earnings from the date of his dismissal to the date of reinstatement to employment.

3. Pursuant to s89(4) of the Industrial Relations Act 1996 the employment of Mr Robert John Drinan shall be regarded as unbroken by the dismissal. I so order. The Hon R W Harrison Deputy President

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